KITTUCHAMI v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **&** **THE HONOURABLE MR. JUSTICE JOHNSON JOHN TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945 CRL.A NO. 383 OF 2021** **AGAINST THE JUDGMENT DATED 15.07.2020 IN SC 275/2015 ON THE FILE OF SESSIONS COURT, PALAKKAD APPELLANT/ACCUSED:** ## **KITTUCHAMI,** **AGED 35 YEARS, S/O.PERUMAL, C/O.MYLA, ALAKAPURI COLONY, CHEMMANAMPATHI, MUTHALAMADA-1, CHITTUR. BY ADV KALESH K.V.** ## **RESPONDENT/RESPONDENT:** ## **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. SMT.SHEEBA THOMAS PP** **THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 10.01.2024, THE COURT ON 23.01.2024 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.383 of 2021 ## P.B.SURESH KUMAR & JOHNSON JOHN, JJ. ----------------------------------------------- Criminal Appeal No.383 of 2021 ----------------------------------------------Dated this the 23[rd] day of January, 2024 ## JUDGMENT ## P.B.Suresh Kumar, J. The sole accused in S.C. No.275 of 2015 on the files of the Sessions Court, Palakkad who stands convicted and sentenced for the offences punishable under Sections 376 and 302 of the Indian Penal Code (IPC) challenges in this appeal, his conviction and sentence in the said case. 2. The victim was a lady aged about 50 years. Her family owns a vegetable garden. The victim and her family were residing in a building inside the vegetable garden itself. On the south-west of the vegetable garden, there existed a Mango Grove measuring approximately 22 acres, hereinafter referred to as “Mango Grove” and on the further south of the Mango Grove, there is a colony called “Chappakkad Colony”, 3 Crl.Appeal No.383 of 2021 hereinafter referred to as “Colony”. There is a shortcut way through the Mango Grove connecting the vegetable garden of the victim and the Colony. Even though the Mango Grove is protected by barbed wire fencing on all four sides, the victim, the members of her family and her workers used the shortcut way through the Mango Grove for access to the Colony and back. On 15.11.2012, by about 5 p.m., the victim proceeded to the Colony through the shortcut way inside the Mango Grove for sale of green chillies. After the sale, even though the victim proceeded to her home from the Colony by about 6 p.m., she did not reach home. As the victim did not reach home, both her son and husband proceeded to the Colony in search of her and as they did not find her there, they started searching inside the Mango Grove and while so, by about 8 p.m., they found the body of the victim inside the Mango Grove in a half naked state with injuries on her body. On the basis of the information furnished by the husband of the victim, a crime was registered by Kollengode Police on the same day itself and the then Circle Inspector of Police, Nenmara conducted the initial investigation. 4 Crl.Appeal No.383 of 2021 Later, the investigation was continued by the then Circle inspector of Police, Kollengode and concluded by his successor by filing the final report against the accused. 3. The accused is a person residing in the Colony and at times he used to work in the vegetable garden of the victim. The accusation in the case is that by about 6 p.m. on 15.11.2012, while the victim was returning home from the Colony, the accused followed her through the shortcut way inside the Mango Grove and at about 6.20 p.m., the accused beat her with a trunk of a tree secured by him from the Mango Grove and when the victim fell down on the ground, the accused dragged her a little away from the direction of the way and committed rape on her. It is also the accusation in the case that as the victim made a noise then, the accused strangulated her with the saree worn by her at the relevant time by forcefully using the same around her neck and beat her on her face and head with the said tree trunk, and thereby caused her death. 4. On the accused pleading not guilty of the charges framed against him on committal of the case for trial to Crl.Appeal No.383 of 2021 5 the Court of Session, the prosecution examined 24 witnesses as PW1 to PW24 and proved through them 30 documents as Exts.P1 to P30. The prosecution has also caused the witnesses examined on its side to identify MOs 1 to 28 material objects. The accused was, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating circumstances brought out by the prosecution in its evidence and he denied the same. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused did not adduce any evidence. Thereupon, on an appraisal of the evidence on record, the Court of Session found the accused guilty of the offences alleged, convicted him and sentenced him to undergo imprisonment for life and pay a fine of Rs.50,000/- for the offence punishable under Section 302 IPC and to undergo imprisonment for a period of ten years and to pay a fine of Rs.25,000/- for the offence punishable under Section 376 IPC. As noted, the accused is aggrieved by his conviction and sentence in the case and hence, this appeal. 6 Crl.Appeal No.383 of 2021 5. The point that arises for consideration is whether the prosecution has established the guilt of the accused beyond reasonable doubt. 6. Heard the learned counsel for the accused as also the learned Public Prosecutor. 7. The first and foremost aspect to be considered is whether the case on hand is a case of homicide. PW1, the husband of the victim gave a pictorial depiction of the manner in which the body of the victim was found. The deposition of PW1 in this regard was that when he saw the body, the blouse of the victim was found torn, a part of her saree was removed and there were injuries on her face and chest. A few other witnesses examined on the side of the prosecution also gave a similar depiction of the manner in which the body of the victim was found. The said evidence tendered by the witnesses examined on the side of the prosecution has not been challenged in the cross-examination of the accused. Be that as it may, PW19, the doctor who conducted autopsy on the body of the victim described in his evidence, the ante-mortem Crl.Appeal No.383 of 2021 7 injuries noted by him in the body at the time of autopsy. Ext.P18 is the autopsy certificate issued by PW19. The antemortem injuries are the following: 1. Lacerated wound 4x1xbone deep vertically placed on right mastoid region. Both edges of wound showed splitted appearance. Hairs around were found crushed on examination with hand lens. Underneath this, scalp contusion 10x5cm on occipital region with thin subdural bleed on both cerebral hemisphere. Thick subarachnoid bleed on both cerebral and cerebellar hemisphere. A linear fissured fracture on right occipital bone on posterior cranial fossae. 2. Lacerated wound 5x0.5x0.5 cm long curved on outer side of right eye with abraded contusion at margins. 3. Loss of upper central incisors and right canine (teeth number 11, 21 and 13). Socket contained blood with contusion 1.5x0.5x0.3cm on inner aspect of upper lip across midline. 4. Lacerated wound 4x1cm on right side of lower lip inner end 1.5cm outer to midline extending to right angle of mouth and into the oral cavity. 5. Lacerated wound 11x3cm on front of chin and right side of face obliquely along the jaw margins communicating with oral cavity. Injury No.4 and 5 were found communicated by another lacerated wound 2x2cm long vertically placed from the middle of upper margin of injury No.5. Underneath injury No.4 and 5 comminuted fracture of mandible just right to midline (symphysis mentis) between central and lateral incisors. Multiple fragments of mandible were found insitu lower right central and lateral incisors and canine were found 8 Crl.Appeal No.383 of 2021 separated from their sockets and found in oral cavity. A small piece of skin of wood (dried) was found within the injury No.5. There were multiple linear abrasions of varying sizes of 0.2x0.8 cm on right side of face just above outer 1/3[rd] of lacerated wound. Injury No.4 and 5 were placed over an area 9x12cm. On right side of face on under aspect of chin. There was another lacerated wound 1.5x0.2x0.5 cm on right side of face just below the lower border of injury No.5, inner end 6cm outer to midline. Two linear abrasion 2.5cm long each on right side of under aspect of chin obliquely placed 0.1cm, apart lower inner margin 4cm outer to midline and 2.5cm below lower border injury No.5. 6. Multiple linear and crescentic abrasions of size 0.2cm, 0.4cm, 0.8cm, 1cm and 3cm on upper and outerside of right breast over an area 13x6cm, inner margin 9cm, outer to midline and 3.5cm above nipple. Nipple was free of injuries. Some abrasions were obliquely placed (total 9 numbers). Some linear abrasions showed infiltration of blood underneath the skin. 7. Multiple linear abrasions vertically placed over an area 26x7cm on left side of front of chest and abdomen upper margin 21cm below collar bone and 6cm outer to midline. 8. Linear abrasions 1.5cm long oblique on right side of front of abdomen upper margin 7cm below costal margin and 4cm outer to midline. 9. Multiple abrasions over an area 17x8cm on outer and back of right hip joint and thigh lower margin 20cm above back of knee. 10. Multiple abrasions over an area 5x4cm on inner aspect of left ankle. 9 Crl.Appeal No.383 of 2021 11. Contusion 5x3x0.5 cm on back of left fore arm 5cm above wrist. 12. Multiple linear abrasions over an area 3x2cm on inner side (medical aspect) of left forearm lower margin 4.5cm above wrist. 13. Linear abrasion 2.5cm long on lower part of left upper arm just above elbow. 14. Abraded contusion 4x3cm on outer side of left elbow. 15. Abrasion 2cm long on under aspect of right side of chin inner margin 5cm outer to midline and 2cm below injury No.4. 16. Abrasion 3x3.8cm obliquely placed on under aspect of right side and front of chin oblique inner lower margin at midline and upper margin merges with lower border of injury No.15. 17. Flap dissection of neck under bloodless field showed infiltration of blood over an area 6x4cm on subcutaneous tissue on front of neck more on right side. Contusions on lower part of right sternohyoid and sternothyroid muscles. Contusion within right thyroid gland. Subluxation of cervical vertebra between C5 and C6. There were infiltration of blood within laryngeal inlet. 18. Hyperaemia 2x1cm each on inner vaginal wall near orifice on both sides. PW19 opined that the victim died due to ligature strangulation and injury No.17 evidences the same. PW19 also deposed that the injury suffered by the victim on the right side of her face and under her chin namely, injury Nos. 4 and 5 also contributed to the cause of death. PW19 further deposed that injury No.6 10 Crl.Appeal No.383 of 2021 could be produced by forcefully handling the breast as in the case of sexual assault, the linear abrasions in injury No.6 were suggestive of nail marks and injury Nos.7 and 8 could be produced while forcefully stripping the cloth. PW19 further deposed that injury Nos.11 and 12 could be produced while defending the assault by the victim and injury No.10 could be produced by forcefully penetrating the hard organ into the vagina. It was further deposed by PW19 that the injuries noted by him cumulatively show sexual assault on the victim. PW19 further deposed that injury No.17 could be caused by means of MO1 saree by forcibly constructing the neck using the same and injury Nos. 1 to 5 could be caused by means of MO11 tree trunk. The evidence aforesaid of PW19 has not been discredited in any manner, whatsoever, in the cross-examination. That apart, in cross-examination, it was clarified by PW19 that injury No.18 is within the vaginal wall and he denied the suggestion that the same could be caused while having sexual intercourse with her husband, as it is not a sign of consensual sexual intercourse. That apart, it is seen from Ext.P9 report of the 11 Crl.Appeal No.383 of 2021 Forensic Science Laboratory that seminal stains were detected in MO25 underskirt of the victim seized at the time of holding the inquest. In the light of the evidence referred to above, we have no doubt in our minds that the case on hand is one of homicide and we affirm the finding rendered in this regard by the Court of Session. Since the injuries, on the basis of which PW19 opined that the victim was subjected to sexual intercourse prior to death are ante-mortem injuries, we also affirm the finding rendered in this regard by the Court of Session that the victim was subjected to rape by the accused before causing her death. 8. Now let us consider the crucial question whether it is the accused who committed rape on the victim and caused her death. There is no direct evidence to prove the acts attributed to the accused in this regard. The prosecution relies on circumstances to prove the acts committed by the accused. For this purpose, the prosecution mainly relies on the evidence tendered by PWs 5, 6 and 7. In addition, the prosecution relies on the evidence tendered by the 12 Crl.Appeal No.383 of 2021 investigating officer as regards the information furnished by the accused which led to the alleged discovery of MO11 tree trunk, and MO12 shirt and MO13 dhoti of the accused. That apart, the prosecution also relies on Exts.P8 and P9 reports of the Forensic Science Laboratory for the said purpose. 9. In order to appreciate the oral evidence tendered by the witnesses referred to above and other materials relied on by the prosecution to prove the guilt of the accused, it is necessary to refer to the evidence given by a few other witnesses as well. PW1, the husband of the victim and PW20, the son of the victim are two among such witnesses. PW1 deposed that on receiving information from his son that the victim did not reach home from the Colony, PW1 contacted PW7 who is residing in the Colony and enquired with her the whereabouts of the victim, and since he was informed that the victim had proceeded to her house already, PW1 proceeded to the Mango Grove and by the time he reached there, PW20 and a few others also came there and they along with a few others from the Colony, searched for the victim in the Mango Grove 13 Crl.Appeal No.383 of 2021 and by about 8 p.m., they found the body of the victim on the north-eastern side of the Mango Grove. PW1 deposed that thereupon, he proceeded to the Kollengode Police Station and gave Ext.P1 First Information Statement. PW1 also deposed that the accused is a person who is known to him and used to work in their vegetable garden at times. PW1 also deposed that when he reached home from the police station, PW5, the caretaker of the Mango Grove came to his house and informed PW1 that he saw the accused running through the shortcut way inside the Mango Grove and that PW5 entertains a doubt on the accused. During cross-examination, PW1 clarified that he met PW5 for the first time on that day after the occurrence when he went to the scene of occurrence from the police station before he went to the house and even at that time, PW5 informed him that he entertains a doubt on the accused as he saw the accused during the relevant time in the Mango Grove. Even though PW1 was cross-examined, nothing was brought out in the crossexamination to doubt the veracity of the evidence tendered by him. PW20 gave evidence on the same lines of the evidence let 14 Crl.Appeal No.383 of 2021 in by PW1 and in addition, he clarified that the place where the body of the victim was found cannot be seen from the pathway inside the Mango Grove. 10. PW7 is a person residing in the Colony. PW7 used to work in the vegetable garden of the victim. PW7 deposed that at about 5 p.m. on the date of occurrence, the victim came to the Colony for selling green chillies and while returning home at about 6.15 p.m., the victim came to her house and required her to come to work in their vegetable garden on the following day. It was also deposed by PW7 that after about 15 minutes, the son of the victim called and informed her that the victim did not reach home. It was also deposed by PW7 that on receiving the said information, PW7 along with some of her neighbours went to the Mango Grove in search of the victim and it was while so, that they found the dead body of the victim there. It was also deposed by PW7 that the shortcut way through the Mango Grove was being used not only by the victim and the members of her family, but also by persons who worked in the vegetable garden of the family of 15 Crl.Appeal No.383 of 2021 the victim and in the adjoining agricultural lands. There is absolutely no reason to disbelieve the evidence tendered by PW7. 11. PW6 is a person who runs a meat stall at the place called Muchumkundu. PW6 deposed that on the date of occurrence, by about 5 p.m., he went to the house of one 'Vellachi' at the Colony to ascertain whether she intends to sell her goats and at that time, PW6 saw the accused chopping firewood on the north-west side of the house of Vellachi where she resides. It was also deposed by PW6 that while he was chatting with Vellachi outside her house near his bike, at about 6 p.m., he saw the victim moving from the Colony to her house towards the shortcut way through the Mango Grove. PW6 also deposed that after sometime, he saw the accused following the victim. Nothing is brought out in the cross-examination of PW6 to doubt the veracity of the evidence tendered by him. 12. PW5 deposed that even though he used to leave the Mango Grove by about 5 p.m., on the date of the occurrence, as he entertained a doubt as to whether he had 16 Crl.Appeal No.383 of 2021 closed the water tap inside the Mango Grove, he came back to the Mango Grove and while returning, he heard the sound of somebody running away and when he looked towards that direction, it was found that a person wearing a white clothing with a tree trunk in his hand running away from the Mango Grove. It was also deposed by PW5 that when he lit the torch, he could see that it was the accused who was running away from the Mango Grove. It was deposed by PW5 that he saw the accused inside the Mango Grove at about 6.30 p.m. PW5 also added that in fact, when he enquired with the accused as to the reason for running away from that place, the accused ran away towards the south, jumping over the barbed wire fencing of the Mango Grove without giving any reply. 13. Even though the learned counsel for the accused did not attack the evidence tendered by PWs 6 and 7, according to him, the evidence tendered by PW5 is highly unbelievable. It was argued by the learned counsel that there is absolutely no justification for the presence of PW5 at the Mango Grove at the time at which he claimed to have seen the 17 Crl.Appeal No.383 of 2021 accused, as PW5 specifically stated in his evidence that he leaves the Mango Grove usually by about 4.45 p.m. According to the learned counsel, the explanation given by PW5 to justify his presence at the Mango Grove after 6 p.m. is highly unbelievable. It was also argued by the learned counsel that it is not possible for anyone to see others in a place like a Mango Grove at the relevant time, in the absence of some source of light, and the justification given by PW5 that he saw the accused with the aid of a torch light carried by him, also cannot be believed. It was also argued by the learned counsel that even assuming that PW5 saw somebody at the Mango Grove at that point of time, the evidence tendered by PW5 that the person who saw him turned his face when he lit the torch, is too artificial an explanation. 14. The case of PW5 that he came back to the Mango Grove on the date of occurrence would appear to be suspicious, at the first blush. But, on a close reading of the evidence of PW5 in the background of the evidence tendered by PW1 that PW5 informed him on the date of occurrence itself 18 Crl.Appeal No.383 of 2021 that he saw the accused at the Mango Grove at the relevant time, which statement could be used for corroborating the evidence tendered by PW5 in terms of Section 157 of the Indian Evidence Act, as also the evidence tendered by PW22, the investigating officer that he got a lead to reach the accused based on the evidence tendered by PW5, we found that the evidence tendered by PW5 that he came back to the Mango Grove by about 6.30 p.m. for the purpose of closing the water tap can certainly be believed. The next question is whether the evidence tendered by PW5 that he saw the accused at about 6.30 p.m. at the Mango Grove could be believed. Inasmuch as it is found that the evidence tendered by PW5 that he went back to the Mango Grove by about 6.30 p.m. for the purpose of closing the water tap can be believed, there is no reason why the evidence tendered by PW5 that he saw the accused at that time at the Mango Grove should not be believed. We take this view for the reason that, going by the evidence tendered by PW1, PW5 informed the fact that he saw the accused at the Mango Grove at about 6.30 p.m. on the date of occurrence 19 Crl.Appeal No.383 of 2021 itself not once, but twice. PW5 informed the said fact to PW1 initially when PW1 came back from the police station to the scene of occurrence and later at the house of PW1. The relevant evidence tendered by PW1 in this regard are the following: " ദ��ര�സ��മ� എദ� വ�ട�ല�ക� വന. ട�യ�ൻ എദ� കണ. ക�ടച�മ� പത� ആ വഴ�യ�ലദട ഓട�തകണ. സ$ശയമണ� എന ദ��ര�സ��മ� എല��ട� പറഞ.” x x x x x x x x "ഞ�ൻ station ൽ ലപ�യ� ത���ചവ�� Body ക�ട��ര� ഭ�ഗല1ക� ലപ�യല3�ൾ അവ�ദട ന���ണ� ദ��ര�സ��മ� ആ�8$ എദ� രകപ�ട�ച എന�ദക�ര സ$ശയ$ ലത���, ക�ടച�മ� ഓട�ത� കണത� ദക�ണ� സ$ശയ$ ഉണ� എ�� പറഞ. ഞ�ൻ അല3�ൾ ഒന$ ല;���ച�ല. അല3�ലഴക$ എദ� പ�ട�ച� വ�ട�ല�ക� ദക�ണലപ�യ�. അവ�ലടക� വ�ണ$ വ� ദ��ര�സ��മ� വ�ണ$ വന വ�ശ�മ�യ� എല��ട� ക�ടച�മ�ദയ സ$ശയ$ ഉദണന$ അവൻ ഓട�ത� ദ��ര�സ��മ� എല��ട� പറഞ.” True, PW5 only informed PW1 that he suspects the accused, but PW5 was consistent and firm in his evidence that he saw the accused at the Mango Grove at the relevant time. 15. PW22 is the officer who conducted the initial investigation in the case. PW22 deposed that on questioning PW5 and PW6, he entertained a suspicion on the accused and the investigation conducted thereupon revealed that the accused was keeping away from his house. PW22 also deposed that later on 17.11.2012, when he saw the accused at the place 20 Crl.Appeal No.383 of 2021 called Muchumkundu, the accused attempted to run away and he had to be apprehended therefore, using force. PW22 deposed that when the accused was in police custody, the accused informed PW22 that he threw away a tree trunk adjoining the pond near the house of the accused and that he can get the same, if he is taken to that place. PW22 deposed that on the basis of the said statement, the accused was taken to the said place and he took and handed over MO11 tree trunk from the bushes near the pond. Ext.P22 is the extract of the information, on the basis of which MO11 is stated to have been discovered by PW22. Similarly, PW22 deposed that while in police custody, the accused informed PW22 that a shirt and dhoti was kept by the accused at a place in his house, and on the basis of the said information, when the accused was taken to his house, the accused handed over MO12 shirt and MO13 dhoti which were kept under a heap of unwrapped coconuts. Ext.P22(a) is the extract of the said information. PW22 also deposed that MO22 bark of tree containing blood and soil found on the body of the victim at the time of autopsy is part of MO11 21 Crl.Appeal No.383 of 2021 tree trunk. During cross-examination, even though PW22 deposed that the dog squad brought to the scene of occurrence as part of the investigation sniffed from MO10 orange coloured round comb found near the dead body and proceeded straight to MO19 chappal found almost 20 meters away from the dead body, PW22 did not conduct any investigation as to the ownership of MO10 comb and MO19 chappal. PW22 also deposed that MO19 chappal was not shown to PW1 to verify whether it was one used by the victim. 16. PW21 is the witness to Ext.P14 mahazar, in terms of which the police seized MO11 tree trunk. PW21 deposed that on 18.11.2012, while he was returning from the Colony, he saw a police jeep with accused moving towards the Mango Grove. PW21 deposed that the jeep stopped at the Mango Grove and thereupon, both the police and the accused proceeded towards the southern side of the Mango Grove. It was the evidence of PW21 that there was a pond on the southern side of the Mango Grove and the accused took and handed over MO11 tree trunk from the bushes around the said 22 Crl.Appeal No.383 of 2021 pond. PW21 also clarified in cross-examination that a few hairs and blood stains were found on MO11 tree trunk when it was taken out by the accused. 17. It was argued by the learned counsel for the accused that the evidence tendered by PW22, the investigating officer in connection with the alleged discovery of MO11 tree trunk, MO12 shirt and MO13 dhoti of the accused are not admissible in evidence in terms of Section 27 of the Indian Evidence Act as attempted to be shown by the prosecution, inasmuch as there is no satisfactory evidence in the case that MO11 tree trunk was discovered in terms of the information received from the accused. It was pointed out by the learned counsel that since the accused was not proficient in Malayalam and the investigating officer was not proficient in Tamil, the investigating officer should have recorded the exact words spoken to by the accused in the language in which the accused gave the information and that PW22 should have appended the same to the true translation in Malayalam. Inasmuch as the said course was not adopted, according to the learned counsel, the 23 Crl.Appeal No.383 of 2021 evidence tendered by PW22 in this regard is liable to be rejected. It was argued by the learned counsel that the investigating officer, instead, recorded the information received by him from the accused in Tamil, in Malayalam script, and it is based on the understanding of PW22 about what was spoken to by the accused in Tamil that PW22 claimed to have discovered MO11 tree trunk and such evidence would not fall under Section 27 of the Indian Evidence Act. 18. The investigating officer did not say in his evidence that he is proficient in Tamil, and there was no dispute to the said fact. As pointed out by the learned counsel for the accused, the investigating officer recorded the information received by him in Tamil from the accused in Malayalam script and it is based on the understanding of PW22 about the said information that he claimed to have discovered MO11 tree trunk. As rightly argued by the learned counsel for the accused, since the accused was not proficient in Malayalam and the investigating officer was not proficient in Tamil, the investigating officer ought to have recorded the exact words 24 Crl.Appeal No.383 of 2021 spoken to by the accused in the language in which he gave the information and appended to the same, the true translation in Malayalam[See Sanjay Oraon v. State of Kerala , 2021 (5) KHC 1]. Inasmuch as the said course was not adopted, we are inclined to accept the argument advanced by the learned counsel for the accused that the evidence tendered by PW22 in this regard will not fall under Section 27 of the Indian Evidence Act. But, that does not mean that the evidence tendered by the investigating officer in this regard is liable to be ignored. Even if the evidence tendered by PW22 is not admissible under Section 27 of the Indian Evidence Act, according to us, the conduct of the accused in leading the police to the place from where he took out MO11 tree trunk containing the hairs similar to the hairs of the victim, is admissible under Section 8 of the Indian Evidence Act [See A.N. Venkatesh v. State of Karnataka , (2005) 7 SCC 714]. Inasmuch as there is nothing on record to establish that the human blood contained in MO13 dhoti is that of the victim to connect the said material object with the crime, we are of the view that it is unnecessary to consider the question relating 25 Crl.Appeal No.383 of 2021 to the acceptability of the evidence tendered by PW22 as regards the discovery of MO13 dhoti. 19. Ext.P8 is the report of the Serology Division of the Forensic Science Laboratory and Ext.P9 is the report of the Biology Division of the Forensic Science Laboratory. In Ext.P8, it is stated that item No.1 therein which is MO11, contained human blood. It is also stated in Ext.P8 that item No.19 therein which is MO13 dhoti contained human blood. Similarly, in Ext.P9, it is stated that hairs collected from MO11 tree trunk are human scalp hairs which are similar to the sample scalp hairs in item No.6(a) therein which is a tuft of black and grey hairs of the victim collected from the body at the time of autopsy. Even though the reports of the Forensic Science Laboratory do not indicate that the blood stains found on those objects are that of the victim, Ext.P9 reveals that the hairs found on MO11 are similar to the hairs of the victim. Similarly, even though it was asserted by PW22 that MO22 bark of tree found recovered from the body of the victim at the time of autopsy is part of MO11, the report does not endorse the said fact. On the other 26 Crl.Appeal No.383 of 2021 hand, on the said point, what is stated in Ext.P9 is that it was not possible to opine whether MO22 bark of tree is part of MO11 tree trunk. 20. Let us now consider whether the circumstances proved by the prosecution are sufficient to establish the complicity of the accused in the crime, beyond reasonable doubt. In the light of the discussion aforesaid, the following are the circumstances established by the prosecution: (i) That the victim proceeded from the Colony to her house at about 6.15 p.m. on the relevant day through the shortcut way inside the Mango Grove; (ii) That the accused followed the victim through the shortcut way in the Mango Grove; (iii) That the accused was found running away from the Mango Grove thereafter at about 6.30 p.m; (iv) That the dead body of the victim was found inside the Mango Grove after the accused ran away from the Mango Grove; (v) That the accused was keeping away from his house after the death of the victim; (vi) That the accused attempted to run away when he was found out by the police party; (vii) That MO11 tree trunk containing hairs similar to the hairs of the victim and human blood, was 27 Crl.Appeal No.383 of 2021 taken out and handed over to the police by the accused from a place known to him. (viii) That the accused has not offered any explanation as to the source of his information about the place where MO11 tree trunk was kept. (ix) That some of the injuries suffered by the victim could be inflicted using MO11 trunk. (x) That MO22 bark of tree was recovered from the body of the victim at the time of autopsy, even though it is not established that the same is part of MO11. It is trite that in a case that rests on circumstantial evidence, there must be a chain of evidence so complete, so as to not leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability, the act must have been done by the accused. The moot question is whether the said circumstances in the case on hand cumulatively establish the guilt of the accused beyond a shadow of reasonable doubt. In the practical application, according to us, what is to be seen is whether the circumstances exclude any other alternative hypothesis. 21. Even though a bark of tree was recovered from 28 Crl.Appeal No.383 of 2021 the body of the victim at the time of autopsy, there is nothing to show that the same is part of MO11 tree trunk to connect the accused with the crime. Similarly, even though it was opined by PW19 that the injuries found on the body of the victim could be caused using MO11 tree trunk, the said evidence is not sufficient to arrive at a definite conclusion that it was using MO11 tree trunk that the injuries had been inflicted on the victim by the assailant. If the aforesaid circumstances are excluded from consideration, what remains is the conduct of the accused in taking out MO11 tree trunk from a place known to him and his conduct of keeping away from his house as also running away from the place, when he was found by the police, other than the fact that he followed the victim when she entered inside the Mango Grove to return to her house and he was found running away from the Mango Grove after sometime. In this connection, it is necessary to keep in mind while considering the question aforesaid that the Mango Grove is a large garden measuring approximately 22 acres and merely for the reason that one person had entered into that area and that 29 Crl.Appeal No.383 of 2021 he was found running away from that place, it cannot be said that he is the person who caused the death of a person whose body was found inside the Mango Grove, especially when there is nothing on record to indicate the place where the body was found and the place from where PW5 saw the accused running away. Similarly, while considering the said question, it is necessary to keep in mind the evidence tendered by PW22 that even though the dog squad brought to the scene of occurrence as part of the investigation sniffed from MO10 orange coloured round comb found near the dead body and proceeded straight to MO19 chappal found almost 20 meters away from the dead body, he did not conduct any investigation as to the ownership of the said material objects. Similarly, it was deposed by PW22 that he also did not ascertain from the husband of the victim whether MO19 chappal is one that belonged to the victim. The presence of MO10 comb and MO19 chappal found close to the dead body of the victim which have not been proved to be the belongings of either the accused or the victim, creates a suspicion as to the involvement of a third person in the 30 Crl.Appeal No.383 of 2021 commission of the crime. We take this view for the reason that even though the Mango Grove is protected by barbed wire fencing on all its sides, the shortcut way is being used by other people as well in and around the Mango Grove. In other words, the possibility of a third person committing the crime inside the Mango Grove cannot be ruled out. Had this been a case where the blood of the victim was found on any of the belongings of the accused, such possibilities could have been ruled out. Even on MO11 tree trunk, there is nothing to connect the accused with the crime inasmuch as the group of the blood found therein could not be ascertained and the hairs found therein is found to be only similar to the hairs of the victim and not identical. No doubt, the conduct of the accused in taking out MO11 tree trunk containing human blood and hairs similar to the victim and handing over the same to the police, the conduct of the accused in keeping away from his house after the death of the victim and the conduct of the accused in running away on seeing the police party would create a strong suspicion about the complicity of the accused in the crime, but, according 31 Crl.Appeal No.383 of 2021 to us, inasmuch as we are unable to rule out all other hypothesis as regards the guilt other than that of the accused, it cannot be said that the prosecution has established the guilt of the accused beyond the shadow of reasonable doubt. Needless to say, the accused is entitled to the benefit of doubt. In the result, the criminal appeal is allowed, the impugned judgment is set aside and the appellant is acquitted. He shall be set at liberty forthwith from the concerned prison, if his continued detention is not required in connection with any other case. Registry shall communicate this judgment forthwith to the concerned prison, where the appellant is undergoing incarceration. Sd/- ## P.B.SURESH KUMAR, JUDGE. Sd/- JOHNSON JOHN, JUDGE. YKB