Girish v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 27TH DAY OF JUNE 2013/6TH ASHADHA, 1935** **CRL.A.No. 654 of 2007 ( ) -----------------------------------SC 292/2006 of ADDL.SESSIONS COURT (ADHOC -I), KOTTAYAM. ..........** **APPELLANT(S)/ACCUSED.:** **------------------------------------------** **GIRISH, S/O. KRISHNANKUTTY, PUTHANPURAYIL HOUSE, PLACHIKKAL, KARUKACHAL KOTTAYAM DISTRICT.** **BY ADV. SRI.BABU S. NAIR** **RESPONDENT(S)/STATE.: ------------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE VAKATHANAM - THORUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** **P.BHAVADASAN, J. --------------------------------------Crl. Appeal No.654 OF 2007 --------------------------------------Dated this the 27[th] day of June, 2013.** ## **J U D G M E N T** The accused in this case was prosecuted for the offences punishable under Sections 417, 376 and 306 of Indian Penal Code. He was found guilty of the offences under Sections 417 and 376 IPC. He was, accordingly, convicted and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs.1,000/- and in default of which to suffer rigorous imprisonment for two months under Section 417 IPC and was also sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.50,000/- with default clause of rigorous imprisonment for one year under Section 376 IPC. Set off as per law was allowed. It was also directed that if the fine amounts were paid, a sum of Rs.45,000/- shall be given to PW1 as compensation. 2. PW1 and his sister and their parents were residing together. On 17.03.2004 in the evening as usual, PW1 had gone **Crl. Appeal No.654/2007** **2** to the shop and returned late in the night. His sister, one of the victims, was studying in the N.S.S. School, Karukachal in the 10[th] standard. His father was an Electrician by profession and his mother is a house wife. On 17.03.2004, when he returned from the shop, he entered the house through the kitchen door and had his dinner and then went to sleep. On the next day morning, at about 7 a.m, he found none of the family members had woken up which was unusual according to him. He went to the nearby room and found his father and sister lying motionless and his mother groaning. He tried to awake his father and sister but they did not respond. He realised that both of them were no more. His cries brought the neighbours to the place of occurrence and they removed the mother of PW1 to hospital. On 18.03.2004, by 6 p.m, his mother also passed away. In the meanwhile, at about 9.30 a.m on 18.03.2004, he had laid Ext.P1 First Information Statement which was recorded by PW8 who registered a crime as per Ext.P1(a) First Information Report. 3. PW9 took over the investigation. He conducted inquest on the body of the father of PW1 and prepared Ext.P8 inquest **Crl. Appeal No.654/2007** **3** report. He seized the written white papers found on the western side of the ventilation of the room. He also seized another white paper from the place of occurrence. He found a table in the room where the incident had taken place and on opening the drawer of the table, he found two diaries. They were also seized. One of the diaries contained three letters. He seized them also. He seized various other articles found on the place of occurrence including the bottle in which the poison was seen and also the glass which was used for taking the poison. After conducting inquest on the body of the father of PW1, Vijayan, he conducted inquest on the body of Rejitha, sister of PW1 and prepared Ext.P9 report. He had the properties seized by him forwarded to the court concerned. During investigation, he formed an opinion that offence under Sections 306 and 376 IPC have been committed and therefore, he filed a report to that effect before the court. The accused was arrested on 18.03.2004 and was subjected to potency test. He made requisition for birth certificate of Rejitha. Further investigation was conducted by his successor in office who laid charge before court. **Crl. Appeal No.654/2007** **4** 4. The court before which final report was laid took cognizance of the offence and on finding that the offences are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Kottayam under Section 209 Cr.P.C. The said court made over the case to Additional Sessions Court (Adhoc-I), Kottayam for trial and disposal. The latter court, on receipt of records and on appearance of the accused, framed charges for the offences under Sections 417, 376 and 306 IPC. To the charges, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had PWs 1 to 14 examined and Exts.P1 to P13 series marked. Exts.X1 series to X4 series were also marked. M.Os 1 to 8 were also got identified and marked. 5. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. He further stated that he and the deceased were in love and he was prepared to marry her. He had not thought of marrying anybody else and someone had **Crl. Appeal No.654/2007** **5** mislead Rejitha that he was thinking of marrying another lady and he was innocent. On finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. But he chose to adduce no evidence. 6. The court below, mainly relying on M.O.s 1 to 4 series and the evidence of PWs 2 and 5 and also Ext.P3, came to the conclusion that offences under Sections 417 and 376 IPC have been made out and accordingly, convicted and sentenced the accused as already mentioned. The said conviction and sentence are assailed in this appeal. 7. Learned counsel appearing for the appellant assailed the findings of the court below on several grounds. It is pointed out by him that reliance placed on M.Os 1 to 4 series cannot be justified because it is not proved to be in the handwriting of the persons who were alleged to have written them. No expert opinion was obtained and the evidence adduced to prove that those documents are in the handwriting of the persons who are alleged to have written them does not meet the requirements of Section 47 of the Indian Evidence Act. Learned counsel then **Crl. Appeal No.654/2007** **6** went on to point out that the evidence of PW2 cannot be accepted for the purpose of coming to the conclusion that there has been physical contact between late Rejitha and the accused. Though she says so in court, in Section 161 Cr.P.C statement given to the Police contains no such recital and that would clearly show that she had developed a story at the time of evidence which has to be treated as a contradiction. It is clear, according to the learned counsel, that the prosecution was developing its case stage by stage and if the evidence of PW2 is eschewed for consideration, there is absolutely no materials to show that one of the victims, Rejitha was subjected to sexual intercourse by the accused. 8. Referring to M.O.s 1 to 4 series, learned counsel for the appellant pointed out that even admitting that those are in the handwriting of the persons who were alleged to have written ' ' them, they contain no clue as to what they meant by മ�നഭ�ഗ� and 'നശ�പ�ച�. ' It cannot be equated to sexual violation. Much more evidence is required in that regard. 9. Learned counsel appearing for the appellant fairly **Crl. Appeal No.654/2007** **7** conceded that the postmortem report namely, Ext.P3 relating to Rejitha showed that the vagina admitted two fingers. It is contended that, that by itself is not a ground to come to the conclusion that it was the accused who had committed sexual assault on the victim or that he was responsible for the death of the victim. It was also pointed out that no semen or spermatozoa was detected in the sample collected by the doctor who conducted the postmortem. Learned counsel then pointed out that by no stretch of imagination, offence under Section 417 IPC can be attracted because no offence of cheating is alleged to have proved in this case. It is, therefore, contended that the conviction and sentence for the offences under Sections 417 and 376 IPC cannot stand. 10. Learned Public Prosecutor, on the other hand, pointed out that M.O.s 1 to 4 series would be treated as suicide notes and if that be so, they explain the circumstances under which three persons namely, Rejitha and her parents were constrained to take the extreme steps. It is pointed out that the appellant cannot plead innocence and he is squarely responsible for the **Crl. Appeal No.654/2007** **8** calamity. It is also pointed out that the evidence of PW2 would sufficiently show the acts committed by the accused. The evidence of PW2 taken along with M.O.s 1 to 4 series are sufficient to show that it was due to the act of the accused that three persons were driven to commit suicide and the court below was perfectly justified in coming to the conclusion that offences under Sections 417 and 376 IPC are made out. 11. It is true that three members of the family committed suicide. It is indeed sad. The allegation is that the accused in this case had sexual intercourse with one of the victims who is the sister of PW1 and had promised to marry her. It would appear that later on he retracted from his promise and thought of marrying another lady which led to the calamity. As regards the above allegations, the main items of evidence are M.O.s 1 to 4 series. Among them, M.O. 1 is said to be in the handwriting of deceased Vijayan. M.O.2 series, according to PW1, are in the handwriting of Rejitha. According to PW1, three writings in M.O.3 diary i.e. January 17, 18 and 22, are in the handwriting of Rejitha. M.O.4 also, according to PW1, is in the handwriting of **Crl. Appeal No.654/2007** **9** Rejitha. According to PW2, M.O.1 is in the handwriting of Vijayan. She identifies the handwritings in M.O.2 (d) and (e) are that of Rejitha. She would also say that M.O.3 diary contains the handwriting of Vijayan. 12. It is surprising to note that there was no attempt from the side of the investigating officer to get the admitted writings of the father and the sister of PW1 and to get the documents seized examined by a handwriting expert. The reason for the omission is not known. The question is whether the identification of the handwritings by PWs 1 and 2 would be sufficient. The provision that would be attracted herein is Section 47 of the Indian Evidence Act which reads as follows: “47. Opinion as to handwriting, when relevant.- When the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. _Explanation_ .- A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received **Crl. Appeal No.654/2007** **10** documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him”. 13. As per Section 47 quoted above, the question arises is whether the mere assertion of PWs 1 and 2 that the disputed documents are in the handwriting of the respective person is sufficient. They do not speak of any document which they have seen previously containing the handwriting of the respective person but claim familiarity with the handwriting. In Halsbury's Laws of India - Volume 15 - Page 344 - Note 145.143, it is observed as follows: ## “ **[145.143] Proof of handwriting** Except when judicial notice is taken of official signatures, the handwriting or signature of unattested documents must be proved. Where a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. This may be done in the following ways: **Crl. Appeal No.654/2007** **11** - (1) by calling the writer; - (2) by an expert; - (3) by a witness who is familiar with the handwriting of the writer; - (4) by comparison of the disputed writing, signature or seal with some other admitted or proven writing, signature or seal of the person; or - (5) by admission of the party against whom the document is tendered. ## 14. In Halsbury's Laws of England - Volume 11 - Page 623 - Paragraph 832, it is observed as follows: “ **832. Handwriting; in general.** The proof of handwriting may require either lay or expert evidence, or both, depending upon the point at issue. A person's handwriting may be proved by the opinion of witnesses who are acquainted with it. The knowledge necessary for this purpose may have been acquired by the witness at any time having (1) seen the party write; or (2) received communications purporting to come from him in answer to those addressed to him by the witness; or (3) observed documents purporting to be in the party's handwriting in the ordinary course of business. Knowledge, however, acquired before or during the trial by a non-expert witness for the express purpose of qualifying him to prove the party's handwriting at the trial will not suffice to make the evidence **Crl. Appeal No.654/2007** **12** admissible. Testimony thus admitted is considered to be primary and not secondary in its nature. While evidence of opinion or belief is admitted for the purpose of proving handwriting where direct evidence of one who was present when the document was written is not available, and familiarity with the handwriting in question may be slight, an opinion based on mere inference is insufficient. The opinions of handwriting experts are admissible to decipher words beneath obliterations, erasures or altercations, although it is for the court to determine what the words are. Experts may also give their opinions as to whether handwriting is natural or imitated, and whether it shows points of comparison, but it is for the court to determine whether a particular piece of writing is to be assigned to a particular person, and documents may be submitted to the court for comparisons to be made. The weight to be attached to any expert evidence depends upon the skill of the expert and the evidence of a lay witness may be preferred to that of a handwriting expert”. ## 15. In Halsbury's Laws of England - Volume 28 - Page 233 - ## Paragraph 605, it is observed as follows: ## “ **605. Evidence as to handwriting.** Non- expert opinion evidence from persons familiar with the alleged author's writing, style or signature, may **Crl. Appeal No.654/2007** **13** constitute an important means of proving a document's authenticity. In the case of non-expert witnesses who claim to be familiar with the alleged author's handwriting, the value of their evidence will depend on the extent of that familiarity. The court may decline to admit such testimony if this familiarity is only slight. Where it is contended that the document in question is a skilful forgery, and comparisons are necessary between specimen writing and those in dispute, expert testimony will in practice be required. A jury should not ordinarily be invited, unaided by the evidence of an expert, to examine a disputed instrument or document and compare it with an admitted genuine one. 16. There has been a cleavage of judicial opinion in this regard. Some courts have held that witness only need to say that he is conversant or familiar with the handwriting of the person concerned. It is not necessary for him to speak how he became conversant. Some courts have taken contrary view. So also regarding the value of such evidence. It is treated only as an opinion evidence. 17. In this connection, it will be useful to refer to the decisions in _**Kesavamoorthy** vs._ _**State of Kerala**_ (ILR 1965 **Crl. Appeal No.654/2007** **14** Kerala 692), _**State of Kerala** vs._ _**T.I. John**_ (1974 KLT S.N.46 Case No.113) and in _**Rahim Khan** vs._ _**Khurshid Ahmed and others**_ (AIR 1975 Supreme Court 290). In _**Kesavamoorthy** vs._ _**State of Kerala**_ (ILR 1965 Kerala 692), it was held as follows: “9. In this connection I am constrained to remark that the prosecution's failure to examine a handwriting expert was a mistake. It might well be that the accused had attempted and succeeded in disguising his writing in a way that most of these items appear to have been written by different persons. 10. The following quotations incorporated in the book “A study in handwriting” by P.Ramanatha Iyer and N.S. Ranganatha Iyer on pages 160, 164 and 165 point to the danger of relying on non-expert opinion evidence alone without the aid of expert opinion: “Handwriting, even if artificial, is to some extent a reflex of the nervous organization of the writer. There is a distinctive characteristic which, being the reflex of the nervous organization, is more or less independent of the writer's will and shows in his handwriting;” and the aid of one specially trained in discovering the presence and absence of these characteristics and similarities would have been of considerable **Crl. Appeal No.654/2007** **15** help to the court in taking a decision as to the identity of the handwriting. “In the case of the non-expert, the characteristics of the standard are necessarily indistinct, shadowy, and uncertain, while they show out to the expert in all distinctness of visible characters. In the latter tangible realities are compared; in the former a visible reality is compared with an invisible, intangible impression in the mind. And it is the prevailing opinion of Judges that the non-expert's recollection from a former comparison or from a former notice of writings, where there may have been no special reason for making a critical examination, is inferior in weight to the testimony of a qualified expert after recent and careful scrutiny”. The evidence of the handwriting adduced in this case is so unsatisfactory that it is absolutely unsafe to rely on it as the basis of a verdict which will subject the accused to severe punishment and operate as a perpetual brand of infamy of his character”. ## 18. In _**State of Kerala** vs._ _**T.I. John**_ (1974 KLT S.N.46 ## Case No.113), it was held as follows: “A person may be able to say whether the writing or a signature has been forged, but it may be difficult to say as to who did it. While an expert deals with **Crl. Appeal No.654/2007** **16** tangible realities and compares one with the other, in the non-expert's case a visible reality is compared with invisible thus creating an intangible impression in the mind. The non-expert's recollection from a former comparison or from a former notice of writings is inferior in weight to the testimony of a qualified expert after recent and careful scrutiny. In this case also, we have the evidence of PW1 and other witnesses deposing that the forged initials were made by the accused, while PW30 the expert is helpless to give any decisive opinion. Therefore the evidence of the witnesses cannot be relied upon to find that the accused has fabricated the documents in question”. ## 19. In _**Rahim Khan** vs._ _**Khurshid Ahmed and others**_ (AIR 1975 Supreme Court 290), it was held in paragraph 39 as follows: “39. There is also oral evidence identifying the signature of the returned candidate on Exhibits P.3 and PW11/1, particularly in the deposition of Habib, P.W.23. He has not spoken to his familiarity with the handwriting of the appellant. Opinion evidence is hearsay and becomes relevant only if the condition laid down in Section 47 of the Evidence Act is first proved. There is some conflict of judicial opinion on this matter, but we need not resolve it here, **Crl. Appeal No.654/2007** **17** because, although there is close resemblance between the signature of Rahim Khan on admitted documents and that in Exhibits P.3 and P.W.11/1, we do not wish to hazard a conclusion based on dubious evidence or lay comparison of signature by Courts. In these circumstances, we have to search for other evidence, if any, in proof of circulation of the printed handbills by the returned candidate, or with his consent”. 20. This Court in the decision in _**Gopal Mohan K.** vs._ _**S. Govindan Nair**_ (2011 (2) KHC 920) had occasion to hold that expert opinion regarding handwriting is entitled to considerable probative value and can form basis of conviction. 21. In the case on hand, except for PWs 1 and 2 saying that it is in the handwriting of the respective persons, no evidence showing or indicating their familiarity with the said handwriting is seen adduced. Even assuming PW1 may be familiar with the handwriting of late Rejitha, PW2 stands on a different footing. 22. At any rate, the investigating agency ought to have at least procured the admitted handwriting of the deceased persons at least to enable the court to make a comparison under **Crl. Appeal No.654/2007** **18** Section 73 of the Indian Evidence Act to satisfy itself that the opinion evidence offered is justified. In the light of the inconsistent evidence furnished by PWs 1 and 2 regarding the handwritings in M.O.s 3 and 4 and also on a bare perusal of M.O.2 series, it is not possible to accept the version of PW1 that those are in the handwriting of Rejitha. 23. Going by the explanation to Section 47 of the Indian Evidence Act, it will be difficult to hold that PWs 1 and 2 fall within the category of the persons acquainted with the handwriting of another person. It is true that PW1 is the brother of Rejitha and Vijayan is his father. He does say that some writings are in the handwriting of his father and some other in the handwriting of his sister. There is no challenge to this in the cross examination. It is difficult to understand as to why the admitted handwritings were not obtained by the investigating officer at least for enabling the court to compare the same under Section 73 of the Indian Evidence Act. All that PWs 1 and 2 say is that they had seen the handwritings of the respective persons. They do not refer to any particular document which contained the **Crl. Appeal No.654/2007** **19** admitted handwritings of either the father of PW1 or his sister. Both of them say that they are familiar with the respective handwritings. PW2 says that she had seen Vijayan writing in front of her. True she is closely related to his family. 24. PW14 is the Teacher in the school where late Rejitha was studying at the relevant time. She was summoned to school to show that Rejitha was absent for several days. 25. It is extremely baffling to note that PW1 says at the time when he gave Ext.P1 First Information Statement that he had no idea about the reason for the suicide. On going by the entries in M.O.s 1 to 4, the whole village knew the reason. PW1 claims to be very close to late Rejitha and if had he so, he would have surely known the reason for the calamity. He was aged 22 years at the time of giving Ext.P1 First Information Statement. His ignorance regarding the affair between Rejitha and accused and his ignorance of the reason for suicide put the prosecution at a very low profile. 26. It is true that the evidence of PW5 shows that he had conducted autopsy on the body of Rejitha on 18.03.2004 **Crl. Appeal No.654/2007** **20** between 1.30 p.m and 2.30 p.m at Medical College Hospital, Kottayam. He collected the vaginal swab and smear and sent them for chemical examination. He would say that he noticed that the hymen showed old and healed tires and the vagina admitted two fingers. According to him, that would be an indicative of the fact that there are possibilities of sexual intercourse. However, the cause of death, according to him, is consumption of poison. 27. The question that arises for consideration is whether the finding of the court below that the accused has committed the offence under Section 376 IPC is sustainable. The court below mainly relied on the evidence of PW2 who says that she had been told by late Rejitha that she had physical contact with the accused. It is not much in dispute that PW2 is the close friend of late Rejitha and related to the family. However, her version that she was told by Rejitha that she had physical contacts with the accused on several occasions does not find a place in her Section 161 Cr.P.C statement given to the investigating officer. It could not be treated as an inadvertent **Crl. Appeal No.654/2007** **21** omission. It is an omission which amounts to material contradiction and the contention of the learned counsel for the appellant that, that was a subsequent development cannot be easily brushed aside. Same is the case in her statement with regard to two other facts spoken to by her at the time of evidence namely that the accused used to accompany Rejitha half way till her house and also that she had seen them together on several occasions. Her testimony that she had gone to the house of Rejitha on coming to know that she is not writing the SSLC examination is also conspicuously absent in her Section 161 Cr.P.C statement. So is the case with the testimony regarding absence of Rejitha in the model examination also. PW1 has no knowledge about the same. In the light of the fact that Section 161 Cr.P.C statement of PW2 does not contain any statement regarding the narration by Rejitha about the physical contact which she had with the accused, it is difficult to accept her version in court in that regard. It can be treated only as a deliberate development or embellishment. 28. What now remains to be considered is M.O.s 1 to 4 **Crl. Appeal No.654/2007** **22** series. In M.O.1, what is stated is “മമ�ള തന�ച� വ�ട�ല�ളമപ�ള മ�നഭ�ഗപപട�ത�”. In M.O.2 series, what is stated is that the accused is responsible for the death of the three persons and that he had spoiled the daughter of Vijayan. M.O.s 3 and 4 series are alleged to be the scribblings made by late Rejitha wherein a reference is made to the word “എപ� ജ�വ�ത� നശ�പ�ച�”. The question is whether these statements by the respective persons taken along with the evidence of PW5 and Ext.P3 are sufficient to come to the conclusion that the accused had ravished Rejitha, the daughter of Vijayan and Vijayamma. It may be possible to say, in the light of the evidence furnished by PW5 and Ext.P3, that Rejitha was subjected to sexual intercourse. The question remains as to whether there is anything to connect the accused to the said act. Neither in M.Os.1, 2, 3 or M.O.4 series, there is mention of any specific date on which the assault or subsequent physical contact had taken place but bald narrations are made by the father of Rejitha that the modesty of his daughter has been outraged. Rejitha also in her scribblings says that she was spoiled. There is no material at all regarding the last occasion on **Crl. Appeal No.654/2007** **23** which the alleged physical contact between Rejitha and the accused had taken place. 29. Going by the evidence of PW1, M.O.2 series 5 Nos. are in the handwriting of his sister Rejitha. But PW2 identifies only M.O.2 (d) and (e) as the handwriting of Rejitha. PW1 has no case that any of the writings in the diary belong to late Vijayan. But PW2 is definite that M.O.3 (b) is in the handwriting of Vijayan. 30. There is yet another fact. When we carefully look at M.O.s 1 to 4, they contain at the end the name of the person. M.O.1 is said to be in the handwriting of Vijayan. In M.O.2(a) and (b), the author is shown as Vijayan and in M.O.2(c), (d) and (e), Vijayan and Vijayamma. Going by the wordings in M.O.2 series, they could not have been written by Rejitha. If one looks at M.O.s 3 and 4, at the end it is seen written by Rejitha. Going by the evidence of PW1, neither M.O.3 nor M.O4 contains any entry in the handwriting of Vijayan but PW2's evidence is otherwise. PW1 then goes to the extent of saying that the entry in M.O.3 is that of Vijayamma. **Crl. Appeal No.654/2007** **24** 31. It is to be noted that the reason for suicide is repeated number of times. The suicides were in the night of 17.03.2004 and morning of 18.03.2004. In M.O.s 1 to 4, it would appear that suicide decision was taken long ago. One fails to understand the logic and rationale behind repeated assertion being made about the accused. As already stated, none of the entries are dated. 32. There is no independent evidence to show that the father of Rejitha proposed the marriage between Rejitha and the accused to the family members of accused and they had rejected the proposal. Even though PW4 says about it, he has only hearsay knowledge. 33. Since M.O.s 1 to 4 series are undated, it is not possible to understand whether they were written immediately prior to the incident or long before that. Further M.O.s 1 to 4 series do not contain the date of the incident which made the deceased persons despondent. From M.O.1, it would appear that there was only one incident. If one has to go by the evidence of PW2, it is not so. The evidence of PW2 shows that she was told by Rejitha **Crl. Appeal No.654/2007** **25** that they had physical contacts more than three occasions. But Rejitha does not give the details of the incident which affected her life, in her scribblings which are reflected in M.O.s 3 and 4. In the absence of any definite instances and the details there of, it becomes difficult to ascertain whether the accused could have done the said act. 34. It is in the above circumstance, one has to necessarily observe the deplorable investigation conducted in this case. Even after obtaining M.O.s 1 to 4 series, there was no attempt from the side of the investigating agency to get the admitted writings of these persons and to get it examined by a handwriting expert. One fails to understand the omission on the part of the investigating agency to do so. 35. It would appear that the investigating agency remained satisfied with the writings in M.O.s 1 to 4 series and felt it quite unnecessary to probe into the matter and to verify the details of the same. One can only say that it is quite unfortunate that the investigating agency played a passive role in this case. When the admitted writings of the persons could have been obtained, the **Crl. Appeal No.654/2007** **26** failure to do so and the failure to get the details of the acts said to have been committed by the accused goes a long way in showing the casual manner in which the investigation was conducted. The handwriting contained in M.O.s 3 and 4 alleged to be belong to Rejitha did not compare well with the handwriting in M.O.2 series. Therefore, the testimony of PW1 cannot be given much weight. It shows that the familiarity of handwriting claimed by PWs 1 and 2 can be taken only with a pinch of salt. It is here that the failure of proper investigation assumes importance. No attempt seems to have been made by the investigating officer to question the relatives of deceased and the accused and the friends of Rejitha. 36. True, three lives have been lost and the appellant has been accused of being responsible for the same. But the mere fact that such an incident has happened by itself is not a ground to mulct liability and fasten culpability on the accused when there is no acceptable evidence to do so. M.O.s 1 to 4 series, even assuming that they are in the handwritings of the respective persons, by themselves are insufficient to prove the act said to **Crl. Appeal No.654/2007** **27** have been committed by the accused. This Court is unable to accept the finding of the court below that offences under Sections 417 and 376 IPC have been made out. This appeal is allowed. The conviction and sentence for the offences under Sections 417 and 376 IPC are set aside. It is held that that accused is not guilty of the said offences and he stands acquitted of the charges levelled against him. His bail bond shall stand cancelled and he is set at liberty. If the fine amount has already been paid, the same shall be refunded to him. **P.BHAVADASAN JUDGE** smp