Rajan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **THURSDAY, THE 16TH DAY OF JUNE 2016 / 26TH JYAISHTA, 1938** ## **CRL.A.No. 888 of 2012** **(AGAINST THE JUDGMENT DATED 03-05-2012 IN SC 15/2010 of SESSIONS COURT, KOZHIKODE)** ## **APPELLANT/ACCUSED :** **RAJAN, S/O. APPU NAIR, CHATTAMVALLIL VEEDU, CHEMMENCHERRY AMSOM, THIRUVANGOOR, VETTILAPPARA, KOZHIKODE.** **BY ADVS.SRI. B. RAMAN PILLAI, SR. SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.M.SUNILKUMAR** ## **RESPONDENT/STATE :** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT. V.H. JASMINE** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-06-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **AMG** ## **C.K. ABDUL REHIM, J. & B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- ## **Crl. Appeal No. 888 OF 2012** ------------------------------------------------DATED THIS THE 16[th] DAY OF JUNE, 2016. ## **J U D G M E N T** ## Abdul Rehim, J: Appellant is the sole accused in S.C. No.15/2010 on the files of the Sessions Court, Kozhikode, who stands convicted under Section 302 of Indian Penal Code and Section 30 of the Arms Act and sentenced to undergo imprisonment for life and to pay fine of Rs.25,000/- and in default to undergo rigorous imprisonment for 6 months under Section 302 IPC; and to pay fine of Rs.2000/- and in default to undergo simple imprisonment for 3 months under section 30 of the Arms Act. The appeal is preferred against the conviction and sentence. 2. Prosecution case in brief is that, the appellant had fired deceased Narayanan Nair with MO6 pistol at the scene of occurrence, which is a mud road on the western side of the 'Sub Canal' proceeding from Erankodemukku **Crl. Appeal No.888/2012** -2- near the house by name Devamritham, bearing Building No.C.P.VI/196 in Chemanchery Village, in Koyilandy Taluk, at 11.30 a.m. On 27.3.2009, causing grievous injuries on the body of Narayanan Nair, who succumbed later to the injuries sustained. It is alleged that, the appellant had committed the said act out of his enmity towards the deceased, as the latter had questioned him with respect to the falling of a coconut tree standing in the property of the appellant, over the house of the deceased's uncle. The appellant was accused of having murdered Narayanan Nair by firing the pistol on him and thereby committed offences under Section 302 IPC and section 30 of the Arms Act, was the charge. 3. Evidence before the trial court comprised of oral testimony of PW1 to PW25, Exts.P1 to P32 documents marked and MO1 to MO19 material objects identified, on behalf of the prosecution. DW1 and DW2 are the witnesses examined for defence and Exts.D1 to D4 are the exhibits marked on behalf of the defence. Exts.X1 series and X1(a) are 'Court Exhibits' marked. **Crl. Appeal No.888/2012** -3- 4. There is no direct evidence or testimony of any ocular witness available with respect to the act of shooting allegedly committed by the appellant/accused. The prosecution had relied upon circumstantial and scientific evidence to prove the case. PW1 to PW5 are witnesses examined to prove the incident. PW7 and PW18 were examined to prove the alleged motive. This court made a revaluation of the evidence of those witnesses . PW3 had deposed that, when she was engaged in stitching of clothes in the verandah of her house, she heard a sound resembling to firing of crackers and when she stood up to see what it is, she saw the appellant calling her from the road. When she came near to the road, the appellant pointed out to the road and said that Narayanan Nair is kept shot there. To a specific question put to her by the prosecution as to whether it was told by whom he was shot, she answered that the appellant told that he shot Narayanan Nair. When she went to the place pointed out by the appellant, she found the deceased lying with profuse bleeding due to the shot injury sustained. PW4 who was examined to prove the **Crl. Appeal No.888/2012** -4- incident also deposed that, on hearing the sound similar to that of firing of crackers, he came out of his house and at that time he found the appellant standing on the road in front of PW3's house, showing some actions to PW3. On seeing this when he get down to the court yard, he heard the appellant saying that he had shot Narayanan Nair. Then the appellant walked away towards northern side. Some other witnesses examined also deposed of seeing the appellant going away through the public road, after the incident. PW8 is the Doctor who conducted post mortem on the body of the deceased. Ext.P4 is the post mortem certificate issued. The following anti mortem injuries were noticed in Ext.P4. 1. Lacerated punctured wound 0.9 cm in diameter with an abrasion collar around (0.2 cm) on right side of upper chest, 9 cm outer to midline and 7 cm below middle of collar bone. The margins of the wound were inverted. The wound continued cutting the intercostal muscles between the ribs 2 and 3 and entered the chest cavity 6 cm. outer to midline and transfixing the inner aspect of right lung upper lobe (l cm in diameter) - entry wound - exist from lung 2 cm and penetrating through the trachea just below the level of bifurcation and transfixing the left lung upper portion of lower lobe and traversing the left chest cavity produced a puncture wound in 6[th] intercostal space left side, 8 cm outer to the -5- **Crl. Appeal No.888/2012** vertebral column (1.1 cm diameter) and entered the muscular plane of paraspinal muscles and embedded in it. Depth of the would was 30 cm. The wound was directed downwards, backwards and to the left. There was 1500 gm. of blood and clots in the right chest cavity and 600 gm. of blood and clots in the left chest cavity. A golden coloured bullet was recovered from the muscle plane of left paraspinal area. 2. Circular lacerated punctured wound 0.6 cm diameter with the margins inverted with abrasion collar around (0.2 cm) on outer aspect of right forearm 13 cm above wrist. 3. Lacerated punctured wound with everted margins 1.8 cm diameter, circular on inner aspect of right forearm 13 cm above wrist. The wound was connected to injury No.2. Depth of the wound was 9 cm. The forearm bone ulna was found fractured to multiple pieces along the course of the wound. 4. Circular lacerated punctured wound 1 cm in diameter on right side of front of abdomen 23 cm below nipple and 11 cm outer to midline. The wound continued cutting the muscles of abdominal wall and entered the abdominal cavity. In the abdominal cavity there was two wounds one at 74 cm way from duodeno, jejuinal junction involving small intestine and mesentery 3 x 1 cm involving the mesenteric side of small intestine. Second injury was 14 cm away from the previous one 3 x 3 cm involving the mesenteric border of small intestine. A golden coloured bullet was recovered from the muscle plane of left lateral abdominal wall close to iliac crest. 5. Multiple abrasions over an area 4 x 2 cm on top of head, in midline 17 cm above root of nose. 6. Sport abrasion 0.3 x 0.2 cm over back of left leg 7 cm above heal. ## 5. MO15 are 2 bullets recovered from the body of the **Crl. Appeal No.888/2012** -6- deceased. PW8 deposed before this court that, the deceased died of gun shot injuries sustained at the chest and abdomen. To a specific question put by the court as to whether injuries 1 to 4 noticed in Ext.P4 are sufficient in the ordinary course of nature to cause death, PW8 answered on the affirmative. He said that injury No.2 may also cause death. 6. Case of the prosecution is that, after the incident which happened at 11.30 on 27.3.2009, the appellant surrendered before PW22, the Sub Inspector of Police, at the Station House, at about 2.45 p.m. on the same day and gave statement that he had shot the deceased Narayanan Nair and that the pistol along with balance bullets are with him in the Bag. PW22 had detained the appellant and seized MO1 Bag, MO2 knife, MO3 Photostat copy of the Gun License, MO4 Bullets (4 numbers), MO5 Magazine of the Pistol, MO6 Pistol and MO7 Book (a printed Book written by him) and MO8 Umbrella from the appellant, by preparing Ext.P2 mahazar. The 'first information statement'given by PW1 was recorded by PW22 at 2.00 p.m. **Crl. Appeal No.888/2012** -7- on the same day at the police station, based on which he had registered Ext.P1(a) FIR. PW23 is the Circle Inspector of Police who conducted the inquest on the body of the deceased at the Medical College hospital. Ext.P8 is the Inquest Report. PW24 Circle Inspector of Police Koilandy took over the investigation on the same day and recorded the disclosure statement of the accused .Arrest of the accused was recorded on the same day itself. Ext.P18 is the Memo of Arrest. Based on Ext.P6(a) disclosure statement made by the appellant that, the shirt worn by him is kept in a Bucket at the toilet of his house, MO16 shirt was recovered by preparing Ext.P6 mahazar from the house of the appellant. PW24 had visited the scene of occurrence on the next day on 28.3.2009 at about 11.a.m. and prepared Ext.P7 Scene Mahazar . MO9 empty Cartridge Cases (3 numbers) were recovered from the scene of occurrence, as revealed from Ext.P7 mahazar. PW7 an independent witness as well as PW18 who is the wife of the deceased were examined to prove the motive. Evidence let in by them is to the effect that, the appellant had enmity with the **Crl. Appeal No.888/2012** -8- person dead, because he was repeatedly demanding compensation on account of the damages sustained to the house building belonging to his uncle Madhavan Nair, due to fall of a coconut tree belonging to the appellant on the roof of the said house. But it is conceded that, the incident regarding fall of the coconut tree had happened about more than 3 years back. Ext. P30 is the report of the Forensic Science Laboratory, Thiruvananthapuram, dated 30.9.2011, which is marked through PW25 Circle Inspector of Police, who completed the investigation and laid the charge sheet. MO6 Pistol, MO4 Bullets and MO9 empty Cartridges were put to scientific analysis. The report would indicate that MO6 Pistol was tested in the laboratory by using 3 ammunition from MO4 Bullets and the fired Cartridge Cases and bullets were recovered. Rifling marks on the test fired bullets were compared. It is reported that the rifling marks were found similar to that of MO15 Bullets recovered from the body of the deceased. Further, on comparison of the test fired cartridge cases with MO9 empty cartridge cases recovered from the scene of **Crl. Appeal No.888/2012** -9- occurrence, two of them were found to be similar with respect to the firing marks on them. It is also reported that the firing marks of one of the empty cartridges were clearly distinguishable and could not be compared with that of the test fired Cartridge Cases. 7. Ext.X1 is the 'case sheet' produced, from the Mental Health Centre, Kuthiravattom , Kozhikode with respect to treatment of the appellant . It would indicate that, after remand of the appellant on 28.3.2009, the learned Magistrate at the JFCM Court, Koilandy had issued direction on 2.4.2009, to the Superintendent of the Sub jail, Koilandy to treat the appellant in the Mental Health Centre and to get a report in the matter urgently. Pursuant to the said direction the appellant was admitted at the Mental Health Centre on 6.4.2009 and treated there as inpatient till 24.5.2009. History noted in X1 case sheet would indicate that, the appellant had paranoid schizophrenia. A report submitted from the Mental Health Centre with respect to the mental condition of the appellant dt. 4.5.2009 would indicate that, he was suffering from 'unspecified **Crl. Appeal No.888/2012** -10- psychosis' having persecutory ideas impaired judgment and insight. In Ext. X1 it is noted that, as per the statement given by the brother of the deceased (DW1) the appellant was undergoing treatment for mental disorders from 1977 to 1982. The Doctor who treated the appellant at the Mental Health Centre was examined as DW2. He deposed that, the appellant was diagnosed of 'unspecified psychosis' with features of persecutory ideas, impaired judgment and insight. He further explained that, persecutory delusion is a type of delusion, which is a false belief of morbid origin which cannot be corrected by rational arguments or by giving evidence to the contrary. He further deposed that, when examined, the appellant was having a persecutory delirium, meaning that others are trying to harm him. To a specific question put as to what are the symptoms of paranoid schizophrenia DW2 answered that delusion of persecution is a feature of paranoid schizophrenia. However, he clarified that schizophrenia is a mental disorder with multi factorial etiology and delusion can be of sudden onset. It need not take a long time to form. **Crl. Appeal No.888/2012** -11- 8. Contentions of the appellant are multi-faceted in the case at hand. In a broad sense, the argument is that, the prosecution was not successful in establishing all the links in the chain of circumstances in order to sustain a conviction. It is pointed out that, there is no direct evidence with respect to the act of shooting. Strong contentions are raised disputing the trustworthiness of the evidence of PW3 to the extent of her testimony with respect to the statement alleged to have made by the appellant. It is argued that the same cannot be treated as an extra judicial confession, coming within the purview of Section 24 of the Indian Evidence Act. Sri. B.Raman Pillai, learned Senior Counsel appearing for the appellant had drawn our attention to the testimony of PW3 pointing out that, what was deposed by her is only that, the appellant called her through a gesture shown with his hand, and when she came near to the appellant, he pointed out his hand to the spot where the deceased was lying and said that Narayanan Nair is kept shot there. It is argued that the answer to the further leading question put by the prosecution, cannot be **Crl. Appeal No.888/2012** -12- accepted as an admissible evidence. On a re-evaluation of the evidence of PW3 it is clear that, the prosecutor had put a specific question as to whether anything was said as to by whom the deceased was shot. Then the witness answered that what was said by the appellant is that he shot Narayanan Nair. 9 In this regard, the court has to evaluate credibility of the testimony of PW3 and PW4 and it is necessary to make an assessment as to how far their version can be accepted as an extra-judicial confession. As already observed, the testimony of PW3 is to the effect that, the appellant told her that Narayanan is kept shot at the spot pointed by him. But to a further question put by the prosecution as to by whom Narayanan was shot, she answered that the appellant told that he shot Narayanan. It is true that PW4 had supported the above said version that he heard the appellant telling to PW3 that he shot Narayanan. But there is discrepancies with respect to the exact words used by both the witnesses. In crossexamination of PW3, she admitted that, what was told by **Crl. Appeal No.888/2012** -13- the appellant is that Narayanan is left shot there. Learned senior counsel for the appellant raised vehement contention that the answer elicited from PW3 by putting a leading question cannot be accepted as evidence. In this regard he had placed reliance on a decision of the honourable Supreme Court in **Varkey Joseph v. State of Kerala [1993 SCC (Crl.) 1117]** . It is observed therein that Section 141 of the Indian Evidence Act, 1872 defines leading question to mean “any question suggesting the answer which the person putting it wishes or expects to receive, is called a leading question”. Section 142 provides leading question must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a reexamination, except with the permission of the Court. The court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved. Section 143 envisages that leading questions can be asked in cross-examination. Section 145 empowers the cross-examiner to contradict any statement given in writing or reduced into writing. The ## **Crl. Appeal No.888/2012** -14- Apex court extracted samples of certain leading questions which would clearly show that the prosecutor led the witness to what he intended that they should say on the material part of the prosecution case to prove against the appellant, which is illegal and obviously unfair to the appellant and his offending his right to fair trial enshrined under Article 21 of the Constitution. The finding is that the such an irregularity is not a curable one. 10. With respect to the acceptance of extra-judicial confession, there exists a catena of legal precedents. In the decision of the honourable Apex Court in **State of Rajasthan v. Rajaram (2003 KHC 1594 : AIR 2003 SC 3601)** it is observed that the valuation of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extrajudicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when **Crl. Appeal No.888/2012** -15- the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakenly conveyed that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility. 11. The honourable Apex Court in **Podyami Sukada v. State of Madhya Pradesh (2010 KHC 4488 : AIR 2010 SC 2977)** held that, law does not contemplate that the evidence of an extra judicial confession should in all **Crl. Appeal No.888/2012** -16- cases be corroborated. It is not an inflexible rule that in no case conviction can be based solely on extra judicial confession. It is basically in the realm of appreciation of evidence and a question of fact to be decided in the facts and circumstances of each case. 12. A division bench of this Court in **Poulose K.K. Alias Samkutty v. State of Kerala (2015 KHC 417),** referring to the above two quoted decisions observed that, it is now well settled that an extra judicial confession can be relied upon if the same is voluntary and made in a fit state of mind. The value of the evidence as to the extra judicial confession depends on the reliability of the witness who gives the evidence. It is also held that the courts shall not presume that extra judicial confession is insufficient to convict the accused even if it not is supported by other circumstantial evidence. 13. Smt. Jasmine V.H., learned Public Prosecutor raised the argument to the effect that there is a clear and reliable evidence regarding the extra judicial confession and the credibility of PW3 and PW4 need not be suspected, **Crl. Appeal No.888/2012** -17- since those witnesses had no enmity towards the appellant nor any affinity towards the deceased. She had placed reliance on a decision of the honourable Supreme court in **R. Kuppusamy v. State represented by Inspector of Police (2013 Crl.L.J. 1513)** . It is held therein that when a confession is alleged to be made immediately after the accused had committed the offence to a person not enemical towards the accused and when the presence of the witnesses at the time of occurrence is established by evidence, the confession stands corroborated. Conviction of accused on the basis of such extra judicial confession is proper. But as already observed by us, the testimony voluntarily made by PW3 is only to the effect that the appellant told that the deceased was kept shot there. She clarified in the cross-examination that the appellant had told only to that extent. But in an answer to the question put by the prosecutor during his chief examination she stated that, the appellant told that he shot the deceased. Considering the ratio contained in **Varkey Joseph** 's case (cited supra), the question put by the prosecutor is one **Crl. Appeal No.888/2012** -18- leading the witness to what he intended that the witness should say on the material part of the allegations in the prosecution case and hence it cannot be considered as a reliable evidence. In this regard the court need to look into the context on which the alleged confession is made. In respect it need to be looked into as to what was the reason for the accused making such a confession and as to whether the witnesses to whom the confession is made commanded the trust and respect of the accused prompting him to disclose about the incident. The learned senior counsel appearing for the appellant contended that in the case at hand there is no confession with respect to he guilt and there is nothing to indicate that PW3 is the person with whom the appellant reposed confidence to reveal such an incident. He had also pointed out that the testimony of PW3 is some what imaginary because what she said is that she was called by the appellant using the word 'mother', whereas PW3 is a lady who is 10 years younger in age than the appellant. Therefore, we cannot accept the answer elicited through a leading question put in the chief **Crl. Appeal No.888/2012** -19- examination as a part of the extra judicial confession. Moreover, all the above said discrepancies and suspicions remain in the testimony of PW3 and PW4. Therefore, as held in the decision cited above, the extra judicial confession depending on the testimony of PW3 and PW4 cannot by itself can be considered as a corroborated evidence upon which the conviction can be sustained. 14. The next question muted for consideration is as to whether the prosecution had succeeded in establishing all the connecting links of the circumstantial evidence. As pointed out there is no direct evidence with respect to the act of shooting. As already observed, the extra judicial confession brought out in the evidence of PW3 and PW4 cannot be considered as a solitary evidence to convict the accused. When coming to the question of other connecting circumstantial evidence, the prosecution is relying upon the seizure of MO6 pistol from the appellant and recovery of MO15 bullets from the body of the deceased. The evidence of PW22 is to the effect that the appellant surrendered before him and he has recorded the statement of confession **Crl. Appeal No.888/2012** -20- and seized the weapon from him. However, the said statement of seizure cannot be considered as legal evidence in view of Section 25 of the Evidence Act. However, there is evidence let in to the effect that MO6 is a pistol owned by the appellant which he had possessed on the basis of Ext.P14 license. But in order to connect the appellant with the instances, there should be corroborative evidence to prove that MO15 bullets recovered from the body of the deceased was fired from MO6 pistol. In this regard, the prosecution is relying on Ext.P30 report obtained from Forensic Science Laboratory. Ext.P30 report is issued by a Scientific Assistant (Physics) in charge of the Asst. Director (Ballistics) of the Forensic Science Laboratory, Thiruvananthapuram. The person who had issued Ext.P30 was not examined before the trial court. The learned senior counsel for the appellant contended that Ext.P30 cannot be admitted in evidence for more than one reason. At the first instance it is contended that, the document cannot be accepted as evidence in trial as a report of a scientific expert to whom Section 293 Cr.P.C. applies. It is pointed **Crl. Appeal No.888/2012** -21- out that the Scientific Assistant (Physics) is not the Director, Deputy Director or Assistant Director of the Forensic Science Laboratory of the state coming within the purview of Sub section (4)(e) of Section 293 Cr.P.C. Further it is pointed out that the said scientific Assistant is not a Government Scientific expert specified through any notification by the central Government within the purview of sub section (4)(g) of Section 293 Cr.P.C. Therefore, it is contended that the admissibility of Ext.P30 under Section 293 Cr.P.C. cannot be sustained. 15. The above argument is disputed out by the public prosecutor placing reliance on a decision of honourable supreme Court in **State of Himachal Pradesh v. Mast Ram** (AIR 2004 SC 5056). In the said case the Apex Court found that the report of Ballistic expert which was signed by one junior Scientific Officer, was not accepted by the High Court holding that the said Officer is not an officer enumerated under sub section (4) of Section 293 Cr.P.C., and therefore, in the absence of his examination such report cannot be read in evidence. The view taken by the **Crl. Appeal No.888/2012** -22- High court was found as a fallacious conclusion by the honourable Supreme Court, holding that one sub-section (4) of Section 293 Cr.P.C., is that the court has to accept the document issued by any of the officers enumerated therein as the valid evidence when examining the author of the document. It is held therein that the report submitted under signature of a junior scientific officer (ballistic of the Central Forensic laboratory) is a report submitted under the hand of a government scientific expert coming within the purview of sub section (1) of section 293 Cr.P.C. and that the high court has completely overlooked provisions of sub section (1) of section 293 Cr.P.C. in arriving at such conclusion that a junior scientific officer is not an officer enumerated under sub section (4) of Section 293 Cr.P.C. But it is to be noted that clause (g) was introduced to sub section (4) of Section 293 Cr.P.C. by virtue of Act 25 of 2005, with effect from 23.6.2006. It clearly specified that the report can be accepted in trial if it is issued by Government scientific experts enumerated under clauses (a) to (f) or by any other Government scientific expert specified **Crl. Appeal No.888/2012** -23- by a notification of the central government. Clause (g) of sub section (4) was not there in existence when **Mast Ram** 's case (supra) was decided by the honourable Supreme Court. But the date of issuance of Ext.P30 is subsequent to the amendment. Therefore, we are of the opinion that in order to attribute evidenciary value to Ext.P30, it need to be issued by any government scientific expert enumerated under clause (a) to (f) sub section (4) or by any other government scientific expert specified under the notification by the Central government. There is no such notification issued with respect to the person who had issued Ext.P30 bringing him within the ambit of government scientific expert envisaged under clause (g) of sub section 4 of Section 293 Cr.P.C. 16. The Public Prosecutor raised contentions regarding the admissibility of Ext.P30 submitting that the person who had issued the said report is the person who was in charge of the Asst. Director of Forensic science laboratory. Since the Asst. Director is a Government scientific expert coming within clause (e) of sub Section (4) **Crl. Appeal No.888/2012** -24- any person in charge of such office is officiating in the capacity as Asst Director and hence such person, will come within the ambit and scope of the authority mentioned therein. She had then relied on a Division Bench of this Court in **Hassan v. State of Kerala (1989 KHC 364)** referring to an earlier decision of this court in **Kunhikannan & others. v. Asst. Sub Inspector of Police (1985 KLT 484)** , it is observed that authorising or investing the officer within the powers of a superior officer is one thing and rank is another thing. Since the Assistant Sub Inspector of Police is an officer below the rank of a Sub Inspector, he was incompetent to effect the search was the dictum contained in **Kunhikannan** 's case(supra). But with respect to seizure of edible oil under a licensing order coming within the purview of the Essential Commodities Act relying on Section 13(2) General Clauses Act, it is held that the Assistant Sub Inspector was duly empowered to exercise all powers of the Sub Inspector by virtue of a Government Order and in view of sub section (2) of Section 13 of the General Clauses Act, it is held that, such **Crl. Appeal No.888/2012** -25- authorisation is sufficient to confirm the powers on the Assistant Sub Inspector to exercise the powers of search and seizure. But the ratio mentioned there cannot be accepted in the case at hand because the acceptance of any report in evidence of any report is admissible only if it is issued by any Government Scientific experts enumerated under sub section 4(a) to (f) or by any other Government Scientific expert authorised through notification. Therefore, the report can be accepted in evidence without examining the person who had issued the same, if possible only if it issued by any of the Government scientific experts enumerated under sub section 4 of Section 293 Cr.P.C. 17. The Public Prosecutor has also placed reliance on a decision of the honourable supreme Court in **Ammini v. State of Kerala (1998 KHC 215)** . There the honourable Apex court observed that a post of 'Joint Director' is comprehended within the expression of 'Director' included in Section 293(4) clause (e) and observed that if the Joint Director was not comprehended within the expression of 'Director' then the legislature would have certainly named **Crl. Appeal No.888/2012** -26- while amending the clause and providing that section 293 applies to the Deputy Director or Assistant Director of a Forensic Science Laboratory Since a Joint director is a higher officer than Deputy Director or an Assistant Director, it would be unreasonable to hold that a report signed by the joint director is not admissible in evidence though a report signed by the Deputy Director or Assistant Director is admissible. Therefore, it is held that a report of the Joint Director is admissible in evidence under Section 293. But there is no anomalous situation in the case at hand. The Scientific Assistant (Physics) in charge of the Assistant Director (Ballistics) is not an officer in the cadre of the Director, Deputy Director or Asst. Director or any equivalent cadre of those officers. There is nothing to show that any other officer either in the rank of the Scientific Assistant or the below such cadre was notified under section (g) of sub Section 4 of S.324 Cr.P.C. Under the above mentioned circumstances we have no hesitation to hold that Ext.P30 report is not a document admissible under section 293 Cr.P.C. ## **Crl. Appeal No.888/2012** -27- 18. Learned senior counsel for the appellant had raised a further contention that Ext.P30 report cannot be attributed with any evidenciary value, despite the fact that it is not admissible in evidence under Section 293 Cr.P.C., because it does not contain any details regarding the aspects upon which the expert had formed the opinion. :earned counsel for the appellant had pointed out that in the report it is only mentioned that the rifling marks on MO4 bullets and MO15 bullets were found to be similar. But on what basis the similarity was assessed is not revealed in the report. Likewise the basis for comparison of the firing marks evident on the cartridge cases recovered from the scene with that of the test fired cartridge case, is not illustrated in the report. It is argued that, the essential principle governing expert evidence is that the expert is not only to provide reasons to support his opinion, but the result should be directly demonstrable. The court is not to surrender its own judgment to that of the expert or delegate its authority to a third party, but should assess his evidence like any other evidence. He placed reliance to the decision **Crl. Appeal No.888/2012** -28- of the hon'ble Supreme Court in **Madan Gopal Kakkad V Naval Dubey (1992) 3 SCC 204** . The apex court observed that, if the report of an expert is slipshot, inadequate or cryptic and the information of similarities or dissimilarities is not available in his report and his evidence in the case, then his opinion is of no use. The court further observed that, it is required for an expert, whether a Government expert or private, if he expects his opinion to be accepted to put before the court, the material which induces him to come to his conclusion should be mentioned, so that the court, though not an expert, may form its own judgment on that material. If the expert in his evidence as a witness does not place the whole lot of similarities or dissimilarities etc., which influence his mind to lead him to a particular conclusion which he states in the court, then he fails in his duty to take the court into confidence. The court is not to believe the ipse dixit of an expert. In other words, the value of expert evidence depends largely on the cogency of the reasons on which it is based. **Crl. Appeal No.888/2012** -29- 19. Arguments raised by learned Senior Counsel on the above said aspects were confronted by the learned Public Prosecutor contending that, Ext.P30 is a document which was marked by the trial court without any objection raised on behalf of the accused. It is contended that once a document is marked without any objection, its admissibility cannot be questioned on a later stage. She had placed reliance on a decision of the hon'ble Supreme Court in **P.C.** **Purushothama Reddy V. S. Perumal (AIR 1972 SC 608)** . It is pointed out that, it is not open to a party to object admissibility of a document which is marked as an exhibit without any objection from such party. But it is to be noted that, the case dealt with is an election petition which is more or less in the nature of a civil proceedings. The hon'ble Supreme Court in a later decision in **Narbada Devi** **Gupta V. Birendra Kumar Jaiswal (2003) 8 SCC 745** held that, mere production and marking of a document as exhibit is not sufficient, but the execution has to be proved by admissible evidence. Learned Public Prosecutor had further raised a contention that, even without examination **Crl. Appeal No.888/2012** -30- of the ballistic Expert, the conviction can be sustained based on other evidence available. She placed reliance on a decision of the apex court in **Vineet Kumar Chauhan V. State of Uttar Pradesh ((2009) 1 SCC (Crl.) 915)** . It is held in the said decision that, there cannot be a general proposition in every case where a firearm is allegedly used by an accused person that the prosecution must lead the evidence of a ballistic expert to prove the charge irrespective of the quality of direct evidence available on record. It is further held, where direct evidence of such an unimpeachable character and the nature of the injuries is consistent with the direct evidence, the examination of ballistic expert may not be regarded as essential. But in the case at hand, there is no direct evidence with respect to the incident and the conviction was based on circumstantial evidence. Therefore the ratio is not applicable on the facts of the case. 20. While evaluating the admissibility of Ext.P30 report, we take note of the fact that the Scientific Expert, who issued the report, was not examined before the trial **Crl. Appeal No.888/2012** -31- court. Admissibility of the said report as a piece of evidence under Section 293 also cannot be accepted, for the reasons mentioned as above. Further, there is no data or reasonings mentioned in the report with respect to the basis for the opinion formed by the Scientific Expert in the matter of comparison of the riffling marks and firing marks on the bullets and cartridge cases. In a recent decision of the hon'ble Supreme Court in **Ramesh Chandra Agrawal V. Regency Hospital Ltd. and others (AIR 2010 SC 806)** it is held that, evidencery value of the opinion of the expert depends on the facts upon which it is based and also the validity of the process by which the conclusion is reached. Thus the idea that is proposed in its crux means that, the importance of an opinion is decided on the basis of the credibility of the expert and the relevant facts supporting the opinion so that its accuracy can be cross checked. Therefore, emphasis has been on the data on the basis of which the opinion is formed. Mere assertion without mentioning the data or basis is not evidence, even if it comes from an expert. Where the experts give no real data **Crl. Appeal No.888/2012** -32- in support of their opinion, the evidence eventhough admissible, may be excluded from consideration as affording no assistance in arriving at the correct value. Based on the above principle, in view of the shortcomings and irregularities mentioned above, this court can only arrive at a conclusion that Ext.P30 cannot be admitted as a valid link in the chain of circumstantial evidence connecting the accused with the offence. 21. Contention from the side of the counsel for the appellant is regarding mental illness of the appellant. It is pointed out that, shortly after arrest of the accused, he was admitted in the 'mental health centre', based on a direction issued by the learned Magistrate and continued treatment for a considerable period. Medical evidence adduced by way of Ext.X1 Case Sheet and oral testimony of DW2 Doctor would clearly indicate that he was suffering from unspecified psychosis and had shown symptoms of schizophrenia. There is evidence to the effect that the mental fitness had let him to have persecutory ideas, impaired judgment and insight. Exhibit X1 as well as ## **Crl. Appeal No.888/2012** -33- testimony of DW2 would indicate that, there was a history of mental illness at his younger age. DW1, who is the brother of the appellant had also supported the version that he was undergoing treatment for mental illness for a considerable period during his younger age. But no document or other evidence is forthcoming to the effect that, at the time when the offence was committed he was under such a mental condition that, at the time of doing the act by reasons of his unsoundness of mind he was incapable of knowing the nature of the act, or that what he is doing is either wrong or contrary to law. Therefore it cannot be said that the appellant had produced any material to establish that he is entitled for the exemption contemplated under Section 84 IPC. 22. Learned Senior counsel appearing for the appellant had drawn attention of this court to the fact that, there is clear failure on the part of the investigating agency in making any enquiry with respect to the mental status of the appellant at the time of commission of the offence alleged. It is pointed out that, at the time when the **Crl. Appeal No.888/2012** -34- appellant was produced before the learned Magistrate on 28-03-2009 along with Ext.P17 remand report of PW24, the appellant had raised a complaint against the Sub Inspector of Police with respect to alleged misbehaviour. The endorsement made by the learned Magistrate would indicate that, the appellant raised complaint that the Sub Inspector had told him that he will shoot him with his pistol. It is further pointed out that, when the Investigating Officer had submitted Ext.D3 remand report, seeking for extension of the remand of the accused, the learned Magistrate on 08-04-2009 directed to produce a report regarding the mental condition of the appellant. Such an order was seen passed again on 05-05-2009 when D4 remand extension report was submitted, based on the submission to the effect that the appellant is admitted at the mental health centre from 04-04-2009 onwards. But PW24 & PW25, when examined before the court, had pretended ignorance about the mental illness of the appellant and about the admission of the appellant in the mental health centre. Learned Senior Counsel contended that, the above said attitude on the part **Crl. Appeal No.888/2012** -35- of the Investigating Officers would reveal that, no honest enquiry was made with respect to the mental status of the appellant which prevailed at the time of the occurrence. It is further pointed out that, the evidence of PW7 & PW18 with respect to the alleged motive is a fabricated evidence created by investigating agency, after coming to know about the fact that the accused is suffering from the mental illness. It is pointed out that, those witnesses were questioned only on 04-07-2009, i.e, nearly after 4 months from the date of the incident and only after the admission of the accused in the mental asylum. However, the learned Public Prosecutor had raised a counter argument that the appellant cannot be permitted to raise a contention based on the alleged delay occurred in questioning PW7 & PW18 on the aspect of the motive, because no question was put to the Investigating Officer, while cross examining, with respect to the alleged delay and he was not afforded with an opportunity to explain the same. In this regard reliance was placed on the decision of the hon'ble apex court in **Banti Alias Guddu V. State of M.P. (AIR 2004 SC 261)** . **Crl. Appeal No.888/2012** -36- Contention of the counsel for the appellant is mainly focusing on the aspect that, the above narrated circumstances would indicate that there exists a serious infirmity in the prosecution case with respect to the failure on the part of the investigating agency to make proper enquiry with respect to the mental condition of the accused at the time of the occurrence. He placed reliance on a decision of the hon'ble Supreme Court in **Bapu Alias Gujraj Singh V. State of Rajasthan ((2007) 8 SCC 66)** . The apex court held that, the onus of proving unsoundness of mind is on the accused. But where during the investigation, any previous history of insanity of the accused is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the court; and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. Contention of the defence in the said case was that the accused having 'paranoid schizophrenia' at the time of commission of the offence and no investigation was conducted by the **Crl. Appeal No.888/2012** -37- investigating officer with regard to the mental condition of the accused. On the facts and circumstances of that case, the court held that, the onus will be discharged by producing evidence as to the conduct of the accused shortly prior to the offence or his mental condition at the time of the offence or immediately afterwards also. But the dictum settled through **Bapu's case** (supra) is that, if the investigating officer comes to know about the previous history of insanity, it is the duty of an honest investigator to subject the accused to a medical examination and to place that evidence before the court. 23. In **Dahyabhai Chhaganbbai Thakkar V. State of Gujarat (AIR 1964 SC 1563** , the hon'ble apex court had laid down the parameters of the doctrine of burden of proof, in the context of the plea of insanity, with the following propositions:- (i) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea: and the burden of proving that always rests on the prosecution from the beginning to the end of the trial, (ii) There is a rebutable **Crl. Appeal No.888/2012** -38- presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the IPC. The accused may rebut it by placing before the court all the relevant evidence - oral, documentary or circumstantial; but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. (iii) Even if the accused was not able to establish that he was insane at the time when he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise to a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused; and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged. 24. When analysed on the dictum contained as above, there is evidence in the instance case to the effect that, there was mental illness of unspecified symptoms of schizophrenia, within the short time after the accused was arrested, for which he had undergone prolonged treatment. **Crl. Appeal No.888/2012** -39- The evidence came out through testimony of DW2 which supported by Ext.X1 'case sheet' would indicate that, there is an alleged previous history of mental illness. It is true that the appellant was not able to establish that he was insane at the time when he had allegedly committed the offence. But the evidence adduced is sufficient to give rise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence including 'mens rea' of the accused, as existed at the time of committing the offence. It was the burden of the investigating agency to report any such mental illness at the time of commission of offence, as settled by the apex court in **Bapu's case** and in **Dahyabhai's case** (both cited supra). The above aspect coupled with the fact that the investigating agency has come out with the evidence of motive only on a later stage. The reasoning for enmity alleged as motive is a weak story which would indicate that, there are circumstances existing to arrive at inference that there is failure on the part of the prosecution to have a honest investigation conducted on the above aspects. On the facts available, the court has to **Crl. Appeal No.888/2012** -40- weigh the evidence of the so called extra judicial confession in correlation with the evidence regarding the mental status of the appellant. 25. While evaluated on the basis as mentioned above, this court is constrained to observe that, there is failure on the part of the investigating agency to conduct a genuine and honest investigation into the mental status of the appellant at the time of commission of offence. 26. The cumulative effect of the discussions contained in the foregoing paragraphs is that, the prosecution is not successful in establishing all links of the connecting circumstances which will lead to a conclusion regarding guilt of the appellant. No honest investigation was conducted by the investigating agency with respect to the mental status of the appellant at the time of alleged commission of the offence; and in fact there was a willful suppression on the side of the prosecution with respect to the mental illness of the accused. More over the alleged motive attributed for commission of the offence of murder, is too weak and non-comprehendable, when considered in ## **Crl. Appeal No.888/2012** -41- the context of the occurrence narrated. Hence we are satisfied that there exists acceptable grounds for not upholding the conviction and sentence imposed by the Sessions Court. 27. In the result, the above criminal appeal is hereby allowed. The conviction and sentence imposed by the Sessions Court, Kozhikode in SC No.15/2010 under Section 302 IPC and Section 30 of the Arms Act, are hereby set aside. The appellant/accused is acquitted of the said offences. The appellant/accused is ordered to be released forthwith, if his detention is not required in connection with any other case. The Registry will communicate the gist of the judgment to the Superintendent of the prison concerned to comply with the directions contained in the judgment. ## Sd/- ## **C.K. ABDUL REHIM, JUDGE** . Sd/- ## **B. SUDHEENDRA KUMAR, JUDGE** . **Pmn/DL/AMG**