Firos Sekh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY ,THE 30TH DAY OF OCTOBER 2018 / 8TH KARTHIKA, 1940** **CRL.A.No. 1238 of 2015** **AGAINST THE JUDGMENT IN SC 390/2014 of I ADDL.SESSIONS COURT, THRISSUR DATED 13-10-2015** **CP 16/2014 of J.F.C.M.-II,THRISSUR** **CRIME NO. 1583/2013 OF Nedupuzha Police Station, Thrissur** ## **APPELLANT:** **FIROS SEKH, S/O GULABNABI MIYAN, C.NO.810/15, CENTRAL PRISON, KANNUR** **BY ADV. ADV. JOSE JOSEPH (MANNAR) [STATE BRIEF]** ## **RESPONDENT:** **STATE OF KERALA (CIRCLE INSPECTOR OF POLICE, WEST CIRCLE) NEDUPUZHA POLICE STATION CR.NO.1583/2013** **BY ADV. PP SRI.NICHOLAS JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.10.2018, THE COURT ON 30.10.2018 DELIVERED THE FOLLOWING:** Crl.Appeal No.1238/2015 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This Criminal appeal is filed by the appellant challenging the verdict of the 1[st] Additional Sessions Judge, Thrissur by which he was found guilty for offence under section 302 of the Indian Penal Code, 1860 (45 of 1860) and sentenced to imprisonment for life and to pay a fine of `10,000/- (Rupees Ten Thousand only) and in default to undergo imprisonment for one year. 2. The prosecution case in brief is as follows: The appellant herein is a migrant labourer from West Bengal and was working in Classic Constructions at Sakthan Nagar, Thrissur. The deceased Murtoja Miya @ Murthusmiya was his brother. The appellant wanted to marry the wife of the deceased and he decided to kill him. He brought the deceased with him to Thrissur for work with the same intention. On 06/10/2013 at about 6.30 p.m., appellant smashed the head and face of the deceased with a hammer and pushed him into the waterlogged underground basement of the building under construction at Sakthan Nagar site and left him to drown and die. Before doing so, he cut open the abdomen of the deceased so that the body would not be Crl.Appeal No.1238/2015 -:3:- floated out to the surface and thereby committed murder and caused disappearance of evidence. 3. Crime was registered by PW18, charge SHO of Nedupuzha Police Station on 07/11/2013 when an unidentified body of a male in decomposed state was found floating in the pool of waste water at the basement of the building, based on Ext.P1 information of PW1, the Project Manager of the building. Ext.P18 is the FIR. PW23 the Circle Inspector of Police, took over the investigation on 08/11/2013 and his successor PW24 continued the investigation and laid the charge sheet. 4. Prosecution examined PW1 to PW24 as witnesses and marked Exts.P1 to P45 series documents. They also produced and identified material objects MO1 to MO9. Defence adduced no evidence other than Exts.D1 and D2 contradictions brought out in the statement of witnesses. 5. During trial, Adv.Vincent Chirayath who knows Bengali, was appointed as interpreter to enable the accused to understand the proceedings and make his submissions. Witnesses from Bengal also were examined with the help of the Crl.Appeal No.1238/2015 -:4:- said interpreter. 6. The learned Counsel for the appellant submitted that the appellant is innocent and he was falsely implicated in the case by the police. There is no direct evidence in the case. Prosecution miserably failed to prove the case beyond reasonable doubt. The body was recovered one month after the alleged incident. Court below erred in arriving at a conclusion against the appellant about last seen together theory put forth by the prosecution. The whole case is baseless and hence the appellant need to be acquitted. To point out the aspect of last seen together, he relied on the decision of the Apex Court in _**Ganpat**_ _**Singh v. State of Madhya Pradesh**_ (JT 2017(10) SC 374) Paragraphs 9 and 10 reads thus: _“9 There are no eye-witnesses to the crime. In a case which rests on circumstantial evidence, the law postulates a two-fold requirement. First, every link in the chain of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt. Second, all the circumstances must be consistent only with the guilt of the accused. The principle has been consistently formulated thus :_ _“The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of_ Crl.Appeal No.1238/2015 ## -:5:- _guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence”._ _10 Evidence that the accused was last seen in the company of the deceased assumes significance when the lapse of time between the point when the accused and the deceased were seen together and when the deceased is found dead is so minimal as to exclude the possibility of a supervening event involving the death at the hands of another. The settled formulation of law is as follows :_ _“The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases”.”_ 7. On the other hand, the learned Public Prosecutor argued that the case at hand is proved by the prosecution beyond reasonable doubt. The appellant and the deceased were Crl.Appeal No.1238/2015 -:6:- last seen together by PW3 and PW21. Their evidence need not be doubted as they are not interested witnesses and also they are probable witnesses. It connects the appellant with the crime. Other available evidence also conclusively proves the guilt of the appellant beyond the shadow of reasonable doubt. The deceased and the appellant were brothers and they were from West Bengal. The appellant came here as migrant labourer 10 years back and he brought his brother also recently and they were staying together. Appellant had an eye on the wife of the deceased and he wanted to marry her. Hence he wanted to do away with his brother. PW19, the wife of the deceased deposed that the appellant misbehaved to her while he was in their native place. According to her, the appellant is a womanizer. The evidence of PW2, PW3 and PW21 proves the crucial aspect of last seen together theory. Through these witnesses, prosecution proved the vital fact that the deceased was last found with the appellant on 06/10/2013 at 6.00 p. m., and thereafter he was not found by anybody. MO1 hammer and MO2 knife were recovered at the instance of the appellant and Ext.P33 report shows that they Crl.Appeal No.1238/2015 -:7:- were blood-stained. The false explanations given by the appellant during 313 examination is another circumstance against him. The Court below is right in arriving at a just conclusion and hence no interference is needed in the matter. 8. We heard both sides and went through the records. 9. The Court below relied on the evidence of PW2, PW3 and PW21 to come to the conclusion that the appellant and his brother Murthusmiya were last seen together on 06/10/2013 in the evening and thereafter, after one month, the dead body of Murthusmiya was found floating in the basement of the building site of Classic Constructions and hence S.106 of the Indian Evidence Act comes into play and the onus is on the appellant to explain what had happened thereafter. In the absence of proper explanation, the Court below convicted the appellant by taking into consideration other aspects like motive, medical evidence and other scientific evidence. 10. As stated already, the dead body was found floating in a decomposed state in the pool of water in the basement of Sakthan site of Classic Constructions, on 07/11/2013, by PW6 Crl.Appeal No.1238/2015 -:8:- Chacko, an employee of the construction company. Inquest was conducted on 08/11/2013 by the Investigating Officer and Ext.P7 is the report. PW14 the Doctor, gathered MO6 amulet from the body of the deceased while conducting autopsy and it was identified by PW19, the wife of Murthusmiya as that of Murthusmiya's. PW16, Joint Director of FSL conducted DNA test and Ext.P16 is the certificate and it shows that the deceased is none other than the brother of the appellant. 11. PW14, the Assistant Professor of Forensic Medicine, Government Medical College, Thrissur conducted post-mortem examination of the corpse on 08/11/2013 and Ext.P23 is the postmortem certificate issued by him. He opined that death was due to combined effects of drowning and injuries sustained to head and abdomen. Viscera examination revealed presence of ethyl alcohol. Diatom tests conducted gave positive results to show that there was drowning. He ruled out the possibility of causing injuries 1 and 2 due to fall from a height. According to him, injuries were found to be caused by multiple blows with localized blunt force. He further deposed that injury nos. 4 and 5 were Crl.Appeal No.1238/2015 -:9:- produced in two separate actions with knife like object. He ruled out the possibility of injuries found on the deceased to be the result of a free fall from a height. 12. It is also seen that the cut in the abdomen led to delay in floating up of the corpse as gas formation in stomach was prevented. The head and face were disfigured with multiple blows using blunt object. The medical evidence when read together with attending circumstances would show that the death of Murthusmia was a homicide, most probably a pre-planned one. The question to be considered here is whether the Court below is justified in holding that the appellant is the doer of the crime. 13. PW19 is the wife of the deceased. She has a case that the appellant frequently misbehaved to her and attempted to molest her while they were in their home at Lalgola in Murshidabad of West Bengal. According to her, appellant was a womanizer and a nuisance to her. The prosecution allegation regarding motive for the crime is that the appellant wanted to marry the wife of the deceased and to fulfill the same, he committed murder of his brother. The evidence of PW19, if at all Crl.Appeal No.1238/2015 -:10:- believed, would only show that the appellant would have misbehaved to her. It is not enough to prove the motive of the appellant as alleged by the prosecution. Hence, we conclude that the prosecution failed to bring sufficient evidence to prove the motive of the appellant for the commission of the crime. 14. It is true that the appellant and the deceased are brothers and were residing together and were working for the same construction company. The deposition of the above witnesses show that the appellant was seen together with the deceased on 06/10/2013 at around 6.30 p. m. in the work site. Evidence further reveals that the deceased was carrying a bag to go to his native place and the appellant was said to be accompanying him to railway station. Thereafter nobody saw the deceased. The dead body of the deceased was found one month later. In a case based on circumstantial evidence, the remoteness in duration of last seen together alive and the death of the victim must be minimal and at any rate it should negate intervention of third party. In the case at hand, there is no evidence to show that there would be no third party intervention in the interim period. It Crl.Appeal No.1238/2015 -:11:- is in evidence that the particular work site from where the dead body was recovered was a place where work was going on and there were people till 6.00 p. m. during working days, though in a different floor. There is no evidence to show that after 28/09/2013, the appellant was working in the site in which the dead body was found. As far as the circumstances of this case is concerned, in our view, gap of one month is a long and too remote a period to bring in last seen together theory against the appellant. 15. The learned Prosecutor also argued that soon after the dead body was found and even before the identity of the corpse is revealed, the appellant contacted PW3 over phone and asked whether the body found in the basement was that of 'Bhai' (nick name of the deceased). According to the learned Prosecutor, this particular conduct of the appellant shows his culpable heart and involvement in the crime. The counsel for the appellant pointed out it as an omission amounting to contradiction, introduced for the purpose of creating evidence against the appellant. As stated by the learned counsel for the appellant, there is no previous Crl.Appeal No.1238/2015 -:12:- statement about this aspect. We find no difficulty to hold it as a material omission amounting to contradiction which go in favour of the appellant. 16. Coming to the recovery evidence, the learned Sessions Judge himself made a remark in the judgment that the alleged recovery of MO1 and MO2 on the basis of confession of the accused in Hindi cannot be absorbed in as true without a pinch of salt. Even PW23 and the witnesses referred to differed regarding the place from where MO2 was allegedly recovered. Hence the alleged recovery is not of much consequence. 17. In our anxious consideration of the whole evidence, we are of the view that the prosecution failed to prove the allegations against the appellant beyond the shadow of reasonable doubt. The Court below erred in coming to the conclusion that the appellant is guilty for the alleged murder. It is sad that a migrant worker is killed by someone. But nothing is brought out in police investigation to incriminate the appellant conclusively. Prosecution has at hand, only a broken chain of circumstances. The motive for the crime is not proved. In our Crl.Appeal No.1238/2015 -:13:- view, the oral evidence of PW3 and PW21 is not sufficient to prove last seen together aspect, as third party interference cannot be completely negated. The alleged recovery of weapons also inspire no confidence. Of course, the explanation given by the appellant in the 313 statement is not believable as such. But it is trite law that the burden to prove the whole case of the prosecution is fully upon them. The moment they fail in their burden, the appellant is entitled for benefit of doubt and in the instant case, we extent it to him. In the result, the appeal is allowed. The conviction and sentence of the appellant under Section 302 of the Indian Penal Code are hereby set aside. He shall be released from prison forthwith, if his presence is not required in any other case. ## **Sd/-** ## **A.M.SHAFFIQUE** **Judge** **Sd/-** ## **P.SOMARAJAN** Rp //True Copy/ PS to Judge **Judge**