Pathumma W/o Late Mammutty v. State of Kerala and Abdul Shukkoor Shukkoor

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 8[TH] DAY OF NOVEMBER 2021 / 17TH KARTHIKA, 1943 CRA(V) NO. 224 OF 2017** **AGAINST THE JUDGMENT IN CP 52/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,TIRUR, MALAPPURAM** **SC 335/2009 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, MANJERI / III ADDITIONAL MACT, MANJERI, MALAPPURAM** ## **APPELLANT:** **PATHUMMA W/O.LATE MAMMUTTY, VATTAMANNIL, ATHAVANAD PO, 676301, MALAPPURAM DISTRICT** **BY ADVS. SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682031 2 ABDUL SHUKKOOR SHUKKOOR S/O.MUHAMMED KUTTY, KIRANGAYIL HOUSE, ATHAVANAD, MALAPPURAM DISTRICT, PIN 676301** ## **OTHER PRESENT:** ## **SRI.ALEX.M.THOMBRA, SENIOR PUBLIC PROSECUTOR** **THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 08.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.224 of 2017 ::2:: **K. Vinod Chandran & C. Jayachandran, JJ ------------------------------------------Crl.A.(V)224 of 2017 ------------------------------------------Dated, this the 08[th] November, 2021** ## **JUDGMENT** **Vinod Chandran, J.** **The appeal by the mother of the deceased, impugn the judgment of the trial court acquitting the accused. The case of the prosecution was that the accused and deceased were thick friends and this** **relationship led to the accused developing a relationship with the sister of the deceased. Enraged, the deceased summoned the accused to the property of PW3, in the night of 13.08.2016, with the intention of warning the accused and asking him to desist from continuing the relationship with the sister of the deceased. The accused realizing that the deceased would be an impediment in continuing his illicit relationship, pushed him to the ground, hit his head with a massive granite piece and dragged him into the nearby well. He also threw away the footwear of the accused in the compound of the** Crl.A No.224 of 2017 **==> picture [20 x 9] intentionally omitted <==** **adjacent house and the SIM cards and mobile phones of the deceased into the closet of his uncle's residence. The accused was charged under S.302 and 201 of the Indian Penal Code. After trial the accused was acquitted by the learned sessions Judge and the judgment is challenged in appeal.** **2. Sri. K.P Sudheer argued for the appellant and we also heard the learned Public Prosecutor appearing for the 1[st] respondent. Sri K.P Sudheer vehemently argues that the investigation was perfunctory and casual and this resulted in the acquittal of the accused. Even then the evidence proffered before the trial Court proved the guilt of the accused beyond all reasonable doubt. The learned Counsel would seek for allowing the revision. We have perused the evidence since the records were called for from the lower Court. The prosecution examined 22 witnesses marked 34 documents as Exts.P1 to P29 and produced 16 Material Objects.** **3. PW1 attested the seizure of MO1 mobile phone from the septic tank of PW3. PW2 was witness to the** Crl.A No.224 of 2017 **==> picture [20 x 9] intentionally omitted <==** **recovery under S.27 of MO3 granite piece. PW3 is the owner of the property from which the body was recovered; specifically from the well situated in the property. PW4 is the Manager of a Tourist Home where the accused stayed on 12.08.2016, the previous day. PW5 attested Ext.P6 seizure mahazar which seized the personnel effects of the accused at the time of arrest. PW6 is the witness to Ext.P7 scene mahazar and PW7 vouched the purchase of two mobile phones by the accused accompanied by CW21. PW8 is the inquest witness, PW9 the Forensic Surgeon, PW10, registered Ext.P10 FIS given by PW19. PW11 is another inquest witness and PW12 witness to Ext.P12 seizure mahazar recovering the dress alleged to have been worn by the accused. PW13 attested Ext.P13 seizure mahazar of MO7 footwear of the deceased and PW15 is the Assistant Station Officer (Fire Department) who recovered the dead body. PW16, a neighbour of PW3 spoke of somebody having broken her glass window pane on the night of the alleged crime. PW17 is the mother of the deceased, PW18 prepared the site plan and PW19 the** Crl.A No.224 of 2017 **==> picture [20 x 9] intentionally omitted <==** **elder brother of the deceased, who searched for his missing brother and eventually identified the body from the well of PW3. PW20 is the crucial witness to depose on the last seen theory on which the entire case is built by the prosecution. He turned hostile before Court. PW14, 21 and 22 are Investigating Officers. The defence was total denial.** **4. Admittedly, there was no ocular witnesses and the entire case of the prosecution was built on the last seen theory. PW20, who is said to have seen the accused and the deceased together turned turtle before Court and denied the statement. Neither PW3 in whose property the body was found nor PW16 from whose property the footwear of the deceased was recovered and the glass pane of her residence broken, saw the person who committed the act. They were totally oblivious to the crime, until the body was detected. The mobile phones, said to have been recovered from the septic tank of the uncle of the accused, were not proved to be that of the accused. There was no attempt made to trace out any phone calls between the** Crl.A No.224 of 2017 ::6:: **deceased and the accused. The call details produced were not utilized to even find out the location of the accused when the crime occurred. There is absolutely no circumstance connecting the accused with the crime, especially when the last seen theory stands demolished by the witness, who was proffered to prove the same.** **5. Only circumstance is the recovery of a granite stone as per Ext.P2. The material object recovered was a granite rock which is not a particular weapon and even as per the prosecution case the same was lying in the property. There is no case, that the accused had come to the property with a granite stone in preparation of the crime. We also see that there was detected on the granite stone, human blood, as per Ext.P28 chemical examination report. For one there can be no conviction solely based on S.27 recovery; especially when the recovery is of an object which is common to the area.** **6. In this context, we also see the medical evidence as spoken of by PW9 Doctor who marked Ext.P9** Crl.A No.224 of 2017 **==> picture [20 x 9] intentionally omitted <==** **certificate of postmortem examination. The cause of death as opined by the Doctor is by drowning. It was also observed that, there was a head injury prior to death. True, the Doctor opined that the head injury can be caused by MO1, but in cross-examination it was categorically stated that if a person falls on his face and his forehead hits a rough object like a stone, injury numbers 2 and 3 are possible.** **7. Obviously, the deceased died by drowning in the well in PW3's property. The granite stone was also within the same property, lying near the well. In all probability, the deceased would have fallen and hit his head on the rock, before he fell into the well and drowned; which is a reasonable hypothesis in aid of the innocence of the accused. The presence of the accused, even in the locality has not been established and nobody saw the accused and deceased, together. The motive of enmity arising out of an illicit relationship, stands aired without any proof offered. There is no circumstance linking the accused with the crime.** Crl.A No.224 of 2017 ::8:: ## _**8. Chandrappa and others v. State of Karnataka**_ _**(2007 (4) SCC 415)**_ **restated the principles regarding the scope of the power of appellate Court to re-appreciate, review or reconsider evidence and interfere with an acquittal. The general principles were encapsulated in the following manner:** **42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:** **(** _**1**_ **) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.** **(** _**2**_ **) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.** **(** _**3**_ **) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.** **(** _**4**_ **) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.** _**Firstly**_ **, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.** _**Secondly**_ **, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.** **(** _**5**_ **) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate** Crl.A No.224 of 2017 **==> picture [20 x 9] intentionally omitted <==** **court should not disturb the finding of acquittal recorded by the trial court.** **9. It is trite that, when two views are possible based on the evidence on record, the one taken by the trial Court in favour of the accused should not be normally disturbed by the appellate court. In the present case, we do not see two views possible and the only view based on the evidence on record, is that taken by the trial Court, in favour of the accused.** **We find no reason to upset the finding of the trial Court and we dismiss the appeal affirming the judgment impugned.** **Sd/K.Vinod Chandran, Judge** **Sd/C.Jayachandran, Judge** **jma**