Rajesh s/o Sivan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA WEDNESDAY, THE 29TH DAY OF JANUARY 2014/9TH MAGHA, 1935 CRL.A.No. 1836 of 2009 (D) --------------------------[AGAINST THE JUDGMENT IN SC 356/2006 of I ADDL.SESSIONS COURT, ERNAKULAM DATED 31.7.2008] APPELLANT(S)/APPELLANT: ----------------------- RAJESH S/O.SIVAN C.NO.7000 CENTRAL PRISON, VIYUR, THRISSUR. BY ADV. SRI.T.A.SHAJI RESPONDENT(S): -------------- STATE OF KERALA REPRESENTED BY C.I.OF POLICE, VARAPUZHA POLICE STATION, NORTH PARAVOOR, Crime NO.36/2005. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **V.K.MOHANAN & B.KEMAL PASHA, JJ.** ## **----------------------------------------** ## **Crl.A.No. 1836 of 2009** **----------------------------------------** Dated this the 29[th] day of January, 2014 ## **J U D G M E N T** ## **Mohanan,J:** The appellant is the sole accused in S.C.No.356 of 2006 in the court of the First Additional Sessions Judge, Ernakulam and in this appeal, he challenges his conviction and sentence imposed for the offence under Section 302 of I.P.C. by judgment dated 31.7.2008 in the above sessions case. 2. The prosecution allegation is that the accused was entertaining enmity towards the deceased Suresh, who is none other than his own brother, as the deceased had beaten the accused on 5.10.2005, resulting in fracture of his both legs and further that on 10.12.2003, the said deceased had poured boiled oil through the head of the accused causing severe burn injuries to him and out of that enmity, according to the prosecution, on 16.2.2005, the accused, with Crl.A.No.1836 of 2009 :-2-: the intention to commit murder of the deceased, at about 12.45 p.m., had stabbed on the chest and neck of the deceased with a knife, which was kept in his possession, at the veranda of the residential house bearing No.10/78 in Kadamakudy Panchayath and the said Suresh succumbed to the injuries while he was removed to the hospital and thus, the accused has committed the offence punishable under Section 302 of I.P.C. 3. With the above allegation, Crime No.36 of 2005 was registered in the Varapuzha Police Station for the offence punishable under Section 302 of I.P.C. and on completing the investigation, report was laid in the Judicial First Class Magistrate Court, North Paravur and on taking cognizance, C.P.No.32 of 2006 was instituted and the learned Magistrate, by his order dated 22.7.2006 in the above proceedings, committed the case to the Sessions Court, whereupon S.C.No.356 of 2006 was instituted and subsequently, made over to the present trial court for disposal. When the accused appeared, after ## Crl.A.No.1836 of 2009 :-3-: furnishing the prosecution materials to him and hearing the prosecution as well as the defence, a formal charge was framed against him for the offence punishable under Section 302 of I.P.C., which when read over and explained to the accused, he denied the same and pleaded not guilty and consequently, the trial was further proceeded during which the prosecution adduced its evidence by examining PWs.1 to 31 and producing Exts.P1 to P26 documents. From the side of the defence, DW1 is examined and Exts.D1,D1(a) and D2 are marked. The trial court observed that as there is no direct evidence, the prosecution depends upon the circumstances and the evidence thereon to establish its case. According to the learned Sessions Judge, on evaluation of the entire circumstances involved in the case, the evidence against the appellant are conclusive in nature and it is further found that the legal evidence exclude every possibility of reasonable doubt. Thus, it is concluded that from the materials produced by the prosecution, it can be seen that the prosecution has Crl.A.No.1836 of 2009 :-4-: been able to prove its case beyond all reasonable doubt against the accused and accordingly, found that the prosecution has succeeded in proving all the ingredients to be proved for the offence under Section 300 I.P.C. against the accused and that the chain of circumstances are complete without any missing link or reasonable doubt to prove the guilt of the accused. Accordingly, the accused was found guilty and he was convicted for the offence under Section 302 of I.P.C. On such conviction, the accused was sentenced with imprisonment for life and to pay fine of `15,000/- and in default to pay the fine amount, he was directed to undergo simple imprisonment for a further period of two months and set off is allowed under Section 428 of the Cr.P.C. It is the above finding and the order of conviction and sentence that are challenged in this appeal at the instance of the sole accused in the above sessions case. 4. Heard Sri.T.A.Shaji, the learned Senior Counsel appearing for the appellant and Sri.Jikku Jacob, the learned Public Prosecutor for Crl.A.No.1836 of 2009 :-5-: the State. 5. In the present case, the Police machinery set in motion when PW1 gave a statement before the Assistant Sub Inspector of Police, Varappuzha Police Station at about 3 p.m. on 16.2.2005. The F.I.statement given by PW1, which is marked as Ext.P1, was recorded by the A.S.I. of Varappuzha Police Station on the basis of which he registered an F.I.R. in Crime No.36 of 2005 of the Varapuzha Police Station. The said A.S.I. is examined as PW29 and accordingly, Ext.P1 (a) FIR is marked through him. On receiving the information, PW16 the then Police Constable attached to the Varappuzha Police Station was deputed to guard the scene of occurrence. The then Circle Inspector of Police, Vadakkekkara, who is examined as PW30, conducted inquest on the body of the deceased and Ext.P2 inquest report was prepared. On completing the above proceedings, the body of the deceased was sent for postmortem examination and accordingly, PW21, who was then working as Assistant Professor of Forensic Crl.A.No.1836 of 2009 :-6-: Medicine, Medical College, Alappuzha conducted the autopsy on the body of the deceased and he issued the postmortem certificate which is marked as Ext.P9 through him. As per Ext.P9 postmortem certificate, PW21 noted 25 injuries and out of that, injury No.17 is noted as follows:- - “ _17. Incised penetrating wound 4.5x2 cm on outer aspect of right side of chest oblique, upper back end 13 cm below arm pit and 16 cm to the right of midline. Back 2[nd] sharp. The wound entered the chest cavity through 5[th] intercostal space making on incised wound 6x0.5 cm through the intercostal muscles. The wound was directed downwards backwards and to the left. Total minimum depth 5 cm. The middle lobe of right lung was injured with an incised wound 2x0.5x2 cm. Right chest cavity contained 600 ml. of fluid blood. Right lung collapsed._ ” Ext.P10 report was also marked through PW21 which shows the cause of death. The further investigation was undertaken with effect from 17.2.2005 by the then C.I. Of Police, North Paravur. Accordingly, as per the evidence of PW31, he obtained the service of Scientific Assistant and Photographers who are respectively PW14, PW17 and 18. PW31 has also prepared a seizure mahazar, which is marked as Crl.A.No.1836 of 2009 :-7-: Ext.P7 and as described in the seizure mahazar, he had seized one blood stained jute sack, which is marked as MO2. According to PW31, the Scientific Assistant collected Mos.3,3(a),4 and 4(a), which had been taken into custody. According to PW31, on getting information on 18.2.2005 that the accused was seen in the Varappuzha Devaswampadi Devaswam padam, himself had proceeded and the accused was arrested at 3.45 p.m. near the toddy shop as per the arrest memo prepared in the present case, which is marked as Ext.P21. According to PW31, on the arrest of the accused and on his questioning, he had made a confession statement. On examination of the body, inspection memo was prepared which is marked as Ext.P21. On the basis of the confession statement, it was disclosed that the knife was concealed in the long grass near the Pizhala Paliyam Thuruthu ferry and as led by the accused, PW31 and party proceeded to the above place and the accused took out a knife from the long grasses having 2½ feet height situated about 75 metres Crl.A.No.1836 of 2009 :-8-: north from the Paliyam Thuruthu ferry and on the western side of Pokkanam Bridge and according to PW31, when the accused produced the knife, the same was seized and recovered, which was seen wrapped in a paper. The knife is identified and marked as MO1 and the said paper is marked as MO12. There was blood stain in the paper. The mahazar is prepared and marked as Ext.P8 and the statement of accused is marked as Ext.P8(a). It is the further deposition of PW31 that the accused had sustained injury on the tip of his finger when he had scuffle with the deceased Suresh and accordingly, the accused was taken to Duty Medical Officer and obtained a wound certificate, which is marked as Ext.P11 through PW22. According to PW31, on questioning the accused about the shirt which he had worn at the time of the incident, he disclosed that the shirt was placed in the house of the wife of his another brother and he could make available the shirt and according to PW31, as led by the accused, himself and party along with the accused reached at the Crl.A.No.1836 of 2009 :-9-: house bearing No.9/307 of Kadamakkudy Village Panchayat and the accused took out a shirt which was hanging on a cloth line in the shed, situated in the back side of the above house and according to PW31, the said shirt (MO9) was seized on 19.2.2005 at 10 a.m. as per the seizure mahazar, which is marked as Ext.P13. According to PW31, on questioning about the dhothi worn by the accused at the relevant time, he disclosed that he had placed that dhothi on the cloth line in the back side of the hotel in which he was working and accordingly, as led by the accused, PW31 and party proceeded to the hotel viz., Relax Hotel housed in Building No.17/661 of Thrikkakkara Panchayath and the accused produced dhothi taken from the cloth line, which was adjacent to the backside veranda of the said hotel building and the said dhothi was also taken into custody at about 12.15 noon on 19.2.2005, which is marked as MO13, as per the seizure mahazar prepared. According to PW31, the knife, which was recovered, at the instance of the accused, was shown to the witnesses in the hotel and Crl.A.No.1836 of 2009 :-10-: they identified the same. According to PW31, the accused was produced before the court by filing a remand report and also questioned the other witnesses. According to PW31, the jute sack and the sample taken etc. and the dhothi and shirt worn by the accused were also produced before the court by filing a property list which is marked as Ext.P23. Those materials were sent for chemical examination along with a forwarding note. According to PW31, as the Doctor was on leave, the knife used for committing the offences could not be identified by that Doctor and to that effect, a request was made before the court, which is marked as Ext.P24 and the Doctor, who conducted the autopsy on the body of the deceased Suresh, was questioned during which the knife was shown to him and his statement was recorded and the knife was produced before the court through a property list which is marked as Ext.P25. According to PW31, he had obtained certified copy of the case sheet in Crime No.180 of 2003 of Varappuzha Police Station, which was registered Crl.A.No.1836 of 2009 :-11-: for the offence under Section 324 of I.P.C. in which, the accused sustained injury in his legs and the case sheet connected with the said treatment in the hospital is produced. The case sheet is marked as Ext.P12 by PW23. He had also produced the certified copy of F.I.R., F.I.S. and charge in Crime No.180 of 2003 (marked as Ext.P26) wherein the allegation is that boiled oil was poured on the head of the accused and he had also deposed that in that case, the deceased Suresh is the accused. He had also deposed about the production of the photographs taken on 16.2.2005 at the time of inquest and on 17.2.2005. According to PW31, on completing the investigation, he laid the charge and he identified the accused as the person, who was arrested by him. He had also deposed that when he questioned the witnesses, PW7 gave Exts.P5 and P5(a) statements and PW4 gave Exts.P3 and P3(a) statements. 6. As I indicated earlier, the Police machinery set in motion at the instance of PW1. Admittedly, he is not an eye witness to the Crl.A.No.1836 of 2009 :-12-: incident. According to PW1, the incident occurred about three years back and at about 3 p.m., on 16.2.2005, he reached in his house after his work and thus, he heard the news about the murder of Suresh. According to PW1, from his knowledge, there was quarrel between the elder brother and the younger brother and the younger brother died as a result of the same. He did not know, how the death occurred, but according to PW1, it happened in the veranda of the residential building of the deceased. According to PW1, on getting information, he had gone to the place of occurrence and then to the Police Station and launched a statement. He identified Ext.P1 F.I.statement which was given by him to the A.S.I of Varappuzha Police Station. According to PW1, previously, there was quarrel between the accused and the deceased, and the brothers and the mother of the accused had beaten the accused and as a result of the same, his both legs were fractured and thereafter, the accused was taken to the hospital and undergone treatment. According to PW1, Crl.A.No.1836 of 2009 :-13-: there was frequent quarrel between the accused and his brothers and once the deceased Suresh had poured boiled oil on the accused. According to PW1, when he heard about the incident, immediately, he rushed to the residence and found blood on the veranda of the house and the mother of the accused and the deceased, was present there. Pws.2 and 3 are attestors to Ext.P2 inquest report and they have admitted their signature in Ext.P2 and deposed in favour of the prosecution. 7. PW4 is the wife of the accused and when examined, she deposed that at the time of her examination, she was residing at her parental house, but after the marriage, she was residing in her matrimonial home with her family and with her in-laws, including the mother-in-law and brothers of her husband including the deceased. At the time of the incident, she was residing at her parental house, as they had no independent house. According to PW4, her mother-in-law often insisted her to bring her share from the family, but her financial Crl.A.No.1836 of 2009 :-14-: condition was so petty to cater the demand of her mother-in-law. As she failed to bring her share, the mother-in-law demanded her to leave the house and to take rental house for their stay and thus, shifted their residence to a rented building at Poonikkara and resided there for one year. Her husband/the accused was having property dispute with his family members and there was quarrel between the family members connected with the same. PW4 has also stated about the attack made on her husband by the deceased and his brother and the mother. It was also deposed that her mother-in-law compelled her to work as housemaid and her husband was against the same and once he had attacked his mother and she had undergone treatment in the General Hospital. According to PW4, the deceased once came to the house after taking alcohol and asked her son to buy some oil for him and on bringing the oil, his son handed over the same to the deceased Suresh. At that time, she was watching TV along with her husband during which she sensed the smell of boiling oil from the kitchen and the Crl.A.No.1836 of 2009 :-15-: deceased then threw a full goblet of boiled oil towards the accused and he sustained severe burn injury. So he was taken to the hospital at night about 9.30 p.m. The deceased Suresh came to the hospital and apologised to her. According to PW4, the deceased Suresh and mother-in-law had asked her not to disclose the incident to anybody and as there was no place for her to go, she made no complaint about the above incident. It is the further case of PW4 that after the above incident, the accused started to reside in the hotel where he was employed and stopped occupying the house. In addition, her husband Rajesh was forbidden from entering into the house by other members, but did not object her stay in that house. On the fatal day at about 7 a.m. the mother-in-law called her to the matrimonial home and she along with her children came and thereafter, sent her children to school. At about 9 o' clock, her mother-in law had left, after which, she too had left and returned to the home at about 10 to 11 in the morning and thus, saw the deceased lying on the floor. According to Crl.A.No.1836 of 2009 :-16-: PW4, since the deceased once threatened to kill her, she did not walk into the house, but on seeing the blood in the veranda, she cried and called the neighbours for help, but nobody had turned up. So she informed the Police through phone and at about one o' clock, the Police had arrived, before which mother-in-law returned to the house. She along with one Police Constable took Suresh to the Paravoor Government Hospital by an autorickshaw. But, when they reached there, Suresh was declared as dead by the Doctor. During the chief examination of PW4, she had deposed that there was frequent quarrel between Suresh and her husband but had not seen whether it was her husband. She further deposed that she had not seen Rajesh on that day. On giving the above answer, as sought by the prosecution, PW4 was declared as hostile and permitted to cross-examine her. During the cross-examination of the learned Public Prosecutor, she also deposed that on the date on which Suresh was murdered, she was not residing there. She also denied having given the statement marked as Crl.A.No.1836 of 2009 :-17-: Exts.P3 and P3(a). She denied that the Police had shown the knife to her on 20.2.2005. She denied the suggestion that she was telling lie so as to save her husband though she had witnessed her husband committing the murder of the deceased Suresh. 8. PW5 is an Advocate. According to him, he reached his house by noon on 16.2.2005 and he heard that the deceased Suresh was murdered on 16.2.2005 at noon. Being a public worker, he went to Kadamakkudy to meet one Balan and at that time, he heard about the murder and on hearing the same, he went to the place of occurrence and at that time, there were two Police men. According to PW5, the deceased Suresh was his classmate. He also deposed that he heard that Rajesh - the brother of the deceased is the person, who committed the same and he had seen blood on the veranda of the house and also found blood near the door. According to him, he had also heard that Suresh was taken to the hospital and thereafter, he came to know that Suresh died in the evening. According to him, as Crl.A.No.1836 of 2009 :-18-: requested by the Police, he had reached the place of occurrence on the next day. By that time, C.I. was present and he pointed out the place of occurrence and the C.I. had prepared the mahazar. During the cross-examination on behalf of the accused, he had deposed that he has not given Exts.D1 and D1(a) statements before the Police. 9. PW6 is cited and examined to show that he had seen the accused going from the place of occurrence with a knife. According to PW6, on the date of the incident, he had seen the accused on the road and he is the brother of the deceased Suresh. According to him he had seen the accused near the Ayurveda Hospital, which is situated near to the house of the accused as well as the deceased Suresh. He deposed that he saw the accused coming from the house, but he did not speak to him. During the chief examination itself, he deposed that there was something in the hands of the accused, but he did not notice it. He deposed that he did not give statement to the Police to the effect that he had seen Rajesh going with knife. Since PW6 denied Crl.A.No.1836 of 2009 :-19-: the said fact, he was declared as hostile and the learned Public Prosecutor was permitted to put leading questions and to crossexamine him. Thus, PW6 deposed that he had not given Ext.P4 statement. He also did not identify the weapon shown to him. 10. PW7 Biju is a toddy shop worker and he was cited and examined to show that on 16.2.2003, the accused came to the toddy shop by noon and drank one glass of water and subsequently, one bottle of toddy and thereafter left the toddy shop. But, he turned hostile to the prosecution. He deposed that he did not remember the dress worn by Rajesh on that day and he also deposed that he did not notice any peculiarity in the dress of the accused and he had not given any statement to that effect in the Police. He stated that he did not give Ext.P5 statement to the Police and denied Ext.P5(a) statement as given to the Police. 11. PW8 is the father-in-law of the brother of the accused and the deceased. According to PW8, he came to know about the murder Crl.A.No.1836 of 2009 :-20-: after the incident. According to PW8, after the incident, the accused came to his house and the shirt of his son, which was put for drying, was taken and when the shirt was taken, he asked the reason and at that time, the accused told him that there was some altercation with the younger brother of the accused. Though he had deposed before the court that he can identify the shirt worn by the accused at that time, he categorically deposed that he did not see anything peculiar in the shirt. According to PW8, subsequently, the C.I. of Police came with the accused in his house and it was about after one week from the date of the incident. However, in the cross-examination, he had deposed that the Police came in his house with the accused on 16.2.2005. 12. PW9 is a fish worker. According to him, he knows Rajesh after the incident and was not acquainted with him on the date of the incident. According to him, he saw the accused at about 1¼ p.m. According to him, after tying the country boat when he went to take Crl.A.No.1836 of 2009 :-21-: soda, he saw the accused near the pond and he requested him to take him to the other side of the river, but he denied and at that time, the accused took the country boat and he himself rowed the boat and the boat was stopped at Chiramel near Pizhala. PW9 says that he had also got into the boat when the accused took the same. 13. PW10 is the daughter of PW8 and the wife of Ramesh, another brother of the accused and the deceased. According to her, she was residing in her matrimonial home as she was married by Ramesh, the brother of the accused Rajesh. She does not know the incident. According to PW10, during the relevant time, she was in her parental house as she had gone for delivery and she left the matrimonial home about two months prior to the death of Suresh. According to her, during that period, the work of her husband was working at Muvattupuzha and he used to come to the house once in a week. According to PW10, on the date of the incident, her husband was at Muvattupuzha, his place of work. During the chief Crl.A.No.1836 of 2009 :-22-: examination, she was asked whether Rajesh came to her house on the date of incident and she answered that at about 2 O' lock, he came and asked for a shirt and at that time, the shirt, which was lying outside, was given. According to PW10, when the accused came to her house, she noticed the blood stain in the shirt worn by the accused and accordingly, she asked him about the same and he replied that there was scuffle with Suresh. According to PW10, thereafter the accused came to her house with the Police. During the cross-examination, PW10 has deposed that there was frequent quarrel in her matrimonial home between Suresh and her husband on one side and the accused on the other side and all of them manhandled the accused. According to PW10, the accused was not permitted to enter into their house. She had also deposed that because of the frequent quarrel in the matrimonial home, she was reluctant to stay in that house. 14. PW11 is the owner of the hotel viz., Relax Hotel at Vazhakkala. According to PW11, during that period, there were three ## Crl.A.No.1836 of 2009 :-23-: employees working under him and the incident took place on 16.2.2005. According to this witness, the accused used to come at 6 O' clock for work and he had worked there for eight months and his job is to make parottas. According to PW11, the work arrangement of the accused is that he will start his work in the morning by 6 a.m. and that will be over by 10 a.m. and again his work will start by 3.30-4 p.m. every day. According to PW11, there were facilities in the hotel for the stay of the workers and Rajesh was residing in his hotel there using that facility. According to PW11, on 16.2.2005, Rajesh had gone out after completing his work at about 10 O' clock and at that time, PW11 was present in that hotel. According to him, Rajesh had gone saying that he was going out. But he did not know the time at which Rajesh came back. But, he is definite that the accused was available on that day for duty at 4 O' clock. According to PW11, the accused had stated that on that day and before also, there was quarrel in the house and as usual, he went to the house and after the quarrel, Crl.A.No.1836 of 2009 :-24-: he returned. According to PW11, he did not ask him further. According to PW11, on the next day, the accused read the news paper and thereafter, he was not seen. PW11 had also deposed that the accused asked for `50/- and the same was given and the accused left the place saying that he was going. Subsequently, the Police came along with Rajesh and the Police showed a knife. According to PW11, he was having 8 knives and he realised that one knife was missing and when the Police asked, he replied that the knife like the one was seen missing. During the deposition, he had stated that the knife, which was shown to him, was the one shown was the one missed from his hotel. Thus, MO1 knife is marked through PW11. According to PW11, he had given a statement to the Police on the basis of the question put to him. He had also stated that when the Police came with Rajesh, they have shown MO1 knife to him. As an answer to the question put by the Prosecutor as to whether the Police had detected any other thing, he answered that dress was taken and he Crl.A.No.1836 of 2009 :-25-: added that the dress was taken and handed over by Rajesh. He also identified his signature in Ext.P6 prepared connected with the seizure of the dress. He also deposed that his worker has also signed on the same and it was one Mony. According to PW11, he did not read the mahazar and he put the signature on the paper written by the Police. During the cross-examination, PW11 has stated that he was conducting the hotel for the last ten years and during that period, there were three workers viz., Bhasi, Joshi and Rajesh and the other four workers had gone to their places. According to him, all the works were being done by all of them. It is his further claim that if anybody takes anything from the hotel, that would have been realised by him. According to him, there is no list with respect to all the articles available in the hotel. According to him, the list is inclusive of cooker, gas, knife etc. According to him, on the next day, when he perused the list, he realised the missing of the knife. He had also admitted that he never stated before the Police that he understood Crl.A.No.1836 of 2009 :-26-: about the missing of the knife, after verifying the list. According to him, he can say the item of article available in his hotel and he can also say about the number of knives available in the kitchen of his hotel. According to him, new knives are used for cutting vegetables, meat and also for cutting porotta. According to PW11, MO1 was available for purchase from the open market and there is no separate mark of the hotel in MO1 knife and MO1 at that point of time was a new knife. According to PW11, he did not give any description about the knife and he stated before the Police that the knife is his own. He had also deposed that MO1 is his knife. It is also deposed by PW11 that on that day, the accused joined duty at about 4 p.m. and also in the morning on the next day. When he had gone out on the next day, he demanded `50/- and stated that he was going. PW11 further deposed that if there is any problem in the house, he asked Rajesh to go to the Police. According to him, on appropriate occasion, he had so stated to the accused. Though, he had stated about the signature Crl.A.No.1836 of 2009 :-27-: put by himself and Mani, he does not know, who prepared the paper in which he put the signature. According to PW11, Rajesh himself took his dress and handed over the same to the Police. He himself had taken the same from cloth line drawn on the backside of the kitchen. 15. PW12 is a person engaged in the ferry job and according to him, in afternoon of 18.2.2005, when he was engaged in his job, the Police came with Rajesh and got into his boat and asked him to tie the boat at the place stated by Rajesh. According to PW12, the country boat was landed on the grassy shore in Pizhala grass islet located a little north of Pizhala ferry. At that time, Rajesh and Police got down from the boat and Rajesh took a paper cover among the long grass and the packet contained a knife. On showing MO1 knife to PW12, he identified that the knife, which was having almost one foot length is the one which was, according to his belief, taken out by the accused. Though PW12 was asked whether he can distinguish the paper on sight, he answered that his attention was on the knife packed Crl.A.No.1836 of 2009 :-28-: in the paper. He admitted that the Police had thereafter questioned him. During the cross-examination, it is brought out that he is not aware of the exact time at which the recovery was effected. According to PW12, besides Rajesh, there were three Policemen and Rajesh, being a local, is known to him. According to PW12, after getting down from the boat, he had gone forward and the knife was lying on the chira and the chira was constructed by the Devaswam and the people used to walk through the stone laid on the chira. According to him, no other person was available at that time. 16. PW13 is the driver of the autorickshaw in which the deceased was taken to the hospital. According to PW13, he does not know the details of the case and from the Varappuzha Police Station, his auto was hired for going to Kadamakkudi and it was at about 1.30 p.m on 16.2.2005. There were two Policemen in the autorickshaw which was stopped in front of the Homoeo dispensary situated near to the temple. According to him, one injured person with blood was Crl.A.No.1836 of 2009 :-29-: taken by a Policeman and lady into his autorickshaw and had gone to the Paravoor Government Hospital. According to him, at that time, it was 2.15 p.m. and subsequently, he heard about the death of that person. 17. PW14 was then working as the Scientific Assistant at DCRB, Kochi. According to him, on 17.2.2005, as directed by the ACDCRB, in Crime No.36/2005 of Varappuzha Police Station, he visited the place of occurrence in Crime No.36/2005 of Varappuzha Police Station and took the samples and labelled two packets and sealed the same and thereafter, the packets were entrusted with the Investigating Officer. Blood sample and portion of blood stained jute bag were taken as sample for chemical examination. The jute bag is identified by PW14 as MO2 and portion of the same is identified as MO3. Mo3(a) is identified by him as the cover sealed and labelled by him. He had also identified MO4 blood sample cotton and cover and MO4(a) label. During the cross-examination, it is deposed that he Crl.A.No.1836 of 2009 **==> picture [27 x 9] intentionally omitted <==** does not remember whether the jute bag was obtained from inside or outside the house and also stated that he did not notice anything disorder in the house. 18. These are the evidence and materials referred to by the learned Judge in the impugned judgment in support of his finding and to convict the appellant. 19. The learned senior counsel Sri.T.A.Shaji submitted that the findings of the court below and the conviction recorded against the appellant are unsustainable and liable to be set aside since the prosecution has miserably failed to establish its case against the appellant beyond doubt. According to the learned counsel, the prosecution did not cite and examine any local witnesses and none of the inmates of the house, where the alleged crime occurred, is examined. It is also the contention of the learned Senior counsel that the prosecution has no specific case about the exact time of the occurrence and though the witnesses examined gave different time Crl.A.No.1836 of 2009 :-31-: about the incident, the prosecution has not challenged the same. According to the learned counsel, as there is no direct evidence, the prosecution has attempted to establish its case on the basis of certain circumstances, but those circumstances are not properly established supported by cogent evidence. According to the learned counsel, even if it is admitted, for arguments sake, about the establishment of certain circumstances, the same are not sufficient to form a complete chain and thus, the prosecution miserably failed to establish that the murder of the deceased Suresh was committed by none other than the accused. So, according to the learned counsel, in the absence of proper and sufficient evidence, the trial court is not justified in convicting the appellant and therefore, the appellant is entitled to get an acquittal. 20. On the other hand, the learned Public Prosecutor strenuously submitted that the proved circumstances in this case positively point towards the guilt of the accused. The presence of the Crl.A.No.1836 of 2009 :-32-: accused, immediately after the incident at the scene of crime, is established through the evidence of PW4 and thereafter, the appellant was seen going from the house in question and it is also proved that he had taken water and toddy from a nearby toddy shop and he was found gone across the river. According to the learned Public Prosecutor, the evidence of Pws.8 and 9 show that immediately after the incident, the accused reached their house and took a shirt from that house and the blood stained shirt was taken from that house at the instance of the accused and according to the learned Public Prosecutor, MO1 knife, which was used for committing murder of the deceased, was recovered on the basis of the disclosure statement made by the appellant under Section 27 of the Evidence Act and it is further confirmed that the said MO1 belongs to PW11, in whose hotel, the accused was working and thus MO1 knife was taken by the appellant from the said hotel for the purpose of committing murder of his brother. It is also the submission of the learned Prosecutor that the Crl.A.No.1836 of 2009 :-33-: appellant has also sustained injury in the commotion between the appellant and the deceased Suresh which is proved by the evidence of PW22 and the prosecution has also established the motive of the accused to commit the crime. Thus, according to the learned Public Prosecutor, the trial court has considered all the above facts and evidence and rightly came into a conclusion that the prosecution has proved its case beyond reasonable doubt. So, according to the learned Public Prosecutor, though there is no direct evidence in this case, by establishing the circumstances supported by cogent evidence, and as those proved circumstances are complete in forming a chain without any missing link, those circumstances point towards only the guilt of the accused. Therefore, according to the learned Public Prosecutor, there is no scope for any interference with the finding of the court below and the order of conviction recorded against the appellant. 21. We have carefully considered the rival contentions advanced by the learned counsel for the appellant and the learned Crl.A.No.1836 of 2009 :-34-: Public Prosecutor and the evidence and materials on record. 22. In the light of the rival contentions and in view of the evidence and materials on record, the main question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offence under Section 302 of I.P.C. 23. However, the fact beyond dispute is that the deceased Suresh was murdered on 16.2.2005 and the medical evidence on record proves the said fact beyond dispute. PW21 is an Assistant Professor, Medical College, Calicut. According to him, on 17.2.2005, while he was working as Assistant Professor of Forensic Medicine, Medical College, Alappuzha he had conducted the post-mortem examination on the body of Suresh in Crime No.36/2005 of Varappuzha Police station and issued Ext.P9 certificate. According to him, injury No.17, the right lung of the deceased was collapsed and if the treatment was not given, all other injuries could be fatal. As per the information given by PW21, the deceased died due to stab injuries Crl.A.No.1836 of 2009 :-35-: to chest. Injury No.17 is the said vital injury. In the light of Ext.P9 postmortem certificate and the evidence of PW21, the death of deceased Suresh is homicide and the defence has no case that it was not a homicide. As per the allegation and the case put forward by the prosecution, it was the appellant, who committed the murder of deceased Suresh. As rightly observed by the learned Judge of the trial court, the prosecution wanted to establish its case against the appellant on the basis of the circumstantial evidence. While reiterating the principles to be followed, in a case wherein the prosecution case rests upon the circumstantial evidence, the Apex Court in the decision reported in **Majenderan Langeswaran** v. **State (NCT of Delhi)** [(2013) 3 SCC (Cri) 266] has held that while dealing with the conviction based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt Crl.A.No.1836 of 2009 :-36-: of the accused and the prosecution has to prove that there must be a chain of events so complete as not to leave any substantial doubt in the mind of the court. 24. Now let us consider, whether the prosecution has succeeded in discharging the above task and succeeded in proving its allegation against the appellant beyond reasonable doubt on the basis of the circumstantial evidence brought on record. 25. On a consideration of the case of the prosecution, it can be seen that the following circumstances are sought to be established viz., - _(a) The presence of the accused at the scene of crime immediately after the occurrence;_ - _(b) The accused was found going from the place of occurrence immediately after the occurrence on the date of the incident itself and immediately thereafter, he was found with blood stained shirt in the house of PWs.8 and 9 from where he took another shirt of his own brother Ramesh, who is the husband of PW10 and son-in-law of PW8;_ - _(c)Recovery of MO1 knife allegedly used to inflict the fatal injury on the deceased by the accused, on the basis of the confession statement made by the accused under Section 27 of the Indian Evidence Act;_ Crl.A.No.1836 of 2009 :-37-: - _(d) The accused was missing from his place of work namely, Relax Hotel owned by PW11 during the relevant period of time on the date of the incident;_ _and lastly_ - _(e) The motive suggested by the prosecution against the appellant to commit the murder of his own brother._ 26. In the light of the arguments advanced and in view of the settled position of law relating to a prosecution case which depends upon the circumstantial evidence, the further question to be considered is whether the prosecution has cogently and firmly established the circumstances from which the inference of guilt is sought to be drawn, whether those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused, whether the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and whether the circumstances are complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such Crl.A.No.1836 of 2009 :-38-: evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence. Guided by the above principles, now let us examine the circumstances attempted to be brought on record by the prosecution and whether they succeeded in such attempt. 27. The first circumstance sought to be established is the presence of the accused at the scene of crime immediately after the occurrence. In order to establish the above circumstance, the prosecution heavily depends upon the evidence of PWs.1 and 4. We have already referred to the evidence of PWs.1 and 4. PW1, who gave Ext.P1 F.I.statement, has no claim that he had any direct knowledge about the facts, when he deposed either before the Police or in the court with respect to the incident and the presence of the accused. Ext.P1 is the F.I.statement claimed to have furnished by PW1 before the Police. As per Ext.P1, it is seen given at 3 p.m. on 16.2.2005. During the chief examination of PW1, what he has stated is that on Crl.A.No.1836 of 2009 :-39-: 16.2.2005, when he reached his house at 3 O' clock, after completing his work, he came to know about the death of the deceased Suresh. But, in Ext.P1 F.I.statement, his stand is that he came to his house on completing his work by 1 O' clock and after taking his meals and while resting in the house, he heard a hue and cry from the northern side of his house and when he reached there, he came to know about the quarrel occurred between the accused and the deceased Suresh and that the injured Suresh is taken to the Paravoor Government Hospital. There is some substance in the submission of the learned counsel for the appellant that if he was available at 1 O' clock in his house and went to the place of occurrence immediately on hearing the hue and cry, he had at least every possibility to see the injured, since the injured was removed to the hospital after 2 O' clock. But, he has no claim that he had seen the injured. The defence has also succeeded in proving Ext.D1 contradiction with respect to Ext.P1 F.I.statement of PW1. So, the evidence of PW1 is in no way helpful for the Crl.A.No.1836 of 2009 :-40-: prosecution to prove the presence of the accused as alleged by the prosecution and no evidential value can be attached to Ext.P1 F.I.statement since the material particulars on the same are based upon only on hearsay. 28. The next witness cited and examined by the prosecution to prove the first circumstance is PW4, who is none other than the wife of the appellant. PW4 is declared as hostile. After declaring PW4 as hostile, she was cross-examined by the prosecutor especially when she deposed before the court that she did not see Rajesh, the appellant on that day. She has also denied of having given Exts.P3 and P3(a) statements to the Police. Even as per 161 statement of PW4, PW4 has no case that the appellant was found inside the house in question. As per Ext.P3, her version is that while she was attending the house-hold job, the accused was seen coming away from a distance and there was a knife in his hands. As per Ext.P3(a) version, which she denied, her husband was running away with that knife. Even Crl.A.No.1836 of 2009 **==> picture [27 x 9] intentionally omitted <==** according to the prosecution, PW4 is not an eye witness to the incident and she was examined to show the presence of the accused. But the said denied portion of her 161 statement Exts.P3 and P3(a), according to me, is not sufficient, even otherwise, to show the presence of the appellant at the relevant point of time, particularly when there is no whisper in the deposition of PW4 about the exact time of the incident under which the deceased sustained injuries and the distance at which she had seen her husband and the duration of time spent by her husband in the house etc. In the light of the above discussion with respect to the evidence of PW4, according to us, the contention of the learned Public Prosecutor that PW4 was deposing falsehood before the court to save her husband is untenable. So, the first circumstance sought to be established by the prosecution to prove the presence of the accused immediately before the occurrence is not established with the support of cogent and concrete evidence. 29. The next circumstance is that the accused was found Crl.A.No.1836 of 2009 :-42-: going from the place of occurrence immediately after the occurrence on the date of the incident itself and immediately thereafter, he was found with blood stained shirt in the house of PWs.8 and 9 from where he took another shirt of his own brother Ramesh, who is the husband of PW10 and son-in-law of PW8. To prove the above circumstance, Pws.6 to 10 are examined out of which Pws.6 and 7 turned hostile towards the prosecution. In fact, PW6 was examined to show that the accused was found on the pathway by noon of the fatal day near the Ayurveda Hospital, which is situated near the house in question and when he saw the appellant, he was coming from the house. But, PW6 turned hostile towards the prosecution. Before the said witness is declared hostile, he had deposed that he was standing adjacent to the above hospital and did not speak to the appellant. He also deposed that there was something in the hands of the accused, but he did not notice the same. He denied the statement, which was allegedly given to the Police, to the effect that he had seen the appellant with a knife. Crl.A.No.1836 of 2009 :-43-: During the cross-examination, at the instance of the prosecutor, Ext.P4 was marked through him. Similarly, PW7 is cited and examined to show that the accused took water and one bottle of toddy from the toddy shop where PW7 was working. But, PW7 also is declared as hostile. Though he had deposed that on 16.2.2003, the accused, who was standing in the box, came to the toddy shop in the afternoon and had taken one glass of water and a bottle of toddy, he does not remember the dress worn by the appellant. He also denied having given the statement to the Police to the effect that he had noticed something in the dress worn by the accused at that time. As PW7 turned hostile, the contradictory portions contained in his 161 statement are marked as Exts.P5 and P5(a). PW9 is a fisherman. He had stated that he had seen the accused at about 1¼ p.m. and the appellant requested him to take him to the other side of the river, but he denied and accordingly, the appellant himself had taken the boat and he himself rowed the rowboat and the boat was stopped at Crl.A.No.1836 of 2009 :-44-: Chiramel near Pizhala. So, the evidence of Pws.6,7 and 9 are no way helpful for the prosecution to establish that the appellant was seen near the place of occurrence immediately after the incident. As the exact time of the incident is not mentioned by the prosecution, the time suggested by these witnesses has no relevancy to consider the same against the appellant and to hold that the appellant was seen immediately after the incident while he was going away from the place of occurrence. 30. PWs.8 and 10 are the witnesses cited to show that on the same date of the incident, the appellant came to their house and took away a shirt from their house. PW8 also has no direct knowledge about the incident and according to him, after the incident, he came to know about the murder that had taken place. However, these witnesses stated that the occurrence was at about 1 o' clock. According to PW8, when the accused came to his house at about 1 O' clock, and took a shirt, the appellant told him that there was some ## Crl.A.No.1836 of 2009 :-45-: commotion with the younger brother of the appellant. But PW8 is specific in his deposition that he did not see anything special in the shirt worn by the accused on that day. PW10 is the daughter of PW8 and the wife of Ramesh, another brother of the appellant. According to PW10, the appellant came to her house at 2 O' clock and requested for a shirt and she gave him a shirt. She also stated that there was blood stain in the shirt worn by the appellant at that time and when she questioned about the same, it was answered that there was quarrel with Suresh. Regarding the exact time of arrival of the appellant in the house of Pws.8 and 10, there is no consistency among the versions of the above witnesses and though PW10 claims that she had noticed blood stain in the shirt worn by the accused, according to PW8, he had not noticed anything special. There is also discrepancy about the mode of obtaining the shirt from their house. While PW8 says that the appellant himself had taken a shirt which was put on the cloth line, PW10 says that she herself had taken and handed over the shirt to Crl.A.No.1836 of 2009 :-46-: the appellant. Considering the above inconsistent versions, it cannot be said that the prosecution has succeeded in establishing that the appellant was found immediately after the incident in the house of Pws.8 and 10 with blood stained shirt. 31. Another important circumstance sought to be established by the prosecution is the recovery of MO1 knife under Section 27 of the Evidence Act. According to the prosecution, MO1 knife used by the appellant to inflict injury on the deceased Suresh actually belongs to PW11, who is the owner of the hotel viz., Relax Hotel wherein the appellant was employed as porotta maker and the said knife was recovered of which PW12 is an attestor. When PW11 is examined, he had deposed that MO1 knife belongs to him and- the said knife was missing from the kitchen of his hotel. According to PW11, when the Police questioned him, he was shown a knife like MO1 and during such interrogation, he had stated to the Police that a knife like the present one had been missing. Suffice to say, it is brought on record Crl.A.No.1836 of 2009 :-47-: during the cross-examination of PW11 that there was no list of all the articles available in the hotel. It is brought on record to the effect that when the Police questioned him, he had stated before the Police about the missing of the knife after verifying the list. It is relevant to note that PW11 was questioned after the so-called recovery of MO1 knife allegedly on the basis of the confession statement made by the appellant on his questioning after his arrest. PW20 is the attestor to Ext.P8 mahazar prepared by PW31 in this regard. Ext.P8(a) is the confession statement. According to PW31, on the basis of Ext.P8(a) confession statement of the appellant, MO1 knife was recovered. But what recorded by PW31 as confession statement is to the effect that “ _the knife has been concealed among the grass near the Pizhalakkara Paliyamthuruthu ferry in Kadamakkudy village and if he is taken, he would point out the same_ .” But, the recorded confession statement no way reveals the authorship of the appellant about the concealment of the weapon in question. In his Ext.P8(a) confession statement, there is Crl.A.No.1836 of 2009 :-48-: no claim that he had concealed MO1 knife. It is also relevant to note that the alleged recovery was effected from an open place to which general public has got access. It is also relevant to note that according to the prosecution, MO1 knife was wrapped in a news paper when the appellant took it out from the grass, but PW12, who claims to be an attestor to Ext.P8 seizure mahazar and witness to the alleged recovery, did not support the above version of the prosecution. During the chief examination, when the prosecutor asked him whether he can identify the paper which is used to wrap the knife, his answer was that his attention was on the knife only. According to PW12, he does not know the exact time of the alleged seizure of MO1 knife. During the cross-examination of PW12, the defence has succeeded in bringing the contradiction contained in his 161 statement and marked the same as Ext.D2 and PW12 denied having given a statement to the Police to the effect that suddenly Rajesh took a paper packet made of old news paper among the grass. Thus, on a close scrutiny of the evidence on Crl.A.No.1836 of 2009 :-49-: record, adduced by the prosecution towards the recovery effected under Section 27 of the Evidence Act, it can be seen that the evidence of PW12 is not satisfactory and he had denied the prosecution version that MO1 knife was wrapped with old newspaper. On the basis of Ext.P8(a) confession statement, we are of the opinion that no authorship can be attributed against the appellant for concealing MO1 knife at the place from where the same was taken as per Ext.P8 particularly when the public has got access to that place. So, the prosecution has miserably failed to establish that the appellant used MO1 weapon to commit the murder of the deceased Suresh and as such, there is no link evidence to connect the appellant/accused with the murder of his brother deceased Suresh. 32. In this connection, it is relevant to note that another circumstance sought to be established by the prosecution in support of their allegation against the appellant is that though the appellant was working under PW11, at the relevant point of time, he was absent. It Crl.A.No.1836 of 2009 **==> picture [27 x 9] intentionally omitted <==** is true,when PW11 was examined, he had deposed that the occurrence was on 16.2.2005 and during that period, there were three workers in his hotel and the appellant used to report for duty at 6 a.m. and he had worked for 8 months. The job of appellant was for making porotta. PW11 has specifically stated that he would come for work at 6 a.m. and the job would be over by 10 a.m. and it would start by the evening 3.30 or 4 o' clock. It is also stated by PW11 during his chief examination that on 16.2.2005, Rajesh on completing his work had gone out by 10 o' clock and PW11 was in the hotel at that time. According to PW11, the appellant had gone out stating that he was going out. The prosecutor asked a question to PW11 as to when was the appellant came back. But the answer was that by 4 o' clock, he was available for duty. The above evidence of PW11 was not sufficient to hold that the appellant was not available in the hotel during the period between 10 a.m. and 4 p.m. on 16.2.2005 or whether he went away from the hotel. It is true that when the prosecutor asked Crl.A.No.1836 of 2009 **==> picture [27 x 9] intentionally omitted <==** PW11 as to whether Rajesh had spoken anything, he deposed that as usual, there was commotion in the house on that day also and he went to the house and was drawn into commotion and he came back as usual. According to PW11, on the next day morning, Rajesh read newspaper, thereafter he was missing and PW11 was asked for `50/which was given and he said that he was preparing to leave. On the basis of the above evidence of PW1, the attempt of the prosecution is to show that the appellant was absent during the relevant time and the said fact constitutes the circumstances against the appellant pointing towards his guilty. We have already referred to the evidence of PW11 and what he had stated is that the accused joined for duty on 16.2.2005 at 6 a.m., attended his duty till 10 a.m. and he was available for duty at 4 p.m. on the same date. The above evidence of PW11 is not sufficient to hold that either the appellant disappeared from the hotel premises or had gone from the hotel and got involved in the occurrence. The evidence of PW11 further shows that as usual, the Crl.A.No.1836 of 2009 :-52-: appellant was available for work on the next day morning also. Even if it is admitted for arguments sake that the appellant was absent between 10 a.m. to 4 p.m on 16.2.2005, the said facts are not sufficient to constitute a circumstance against the appellant or in favour of the prosecution to connect the appellant with the murder of the deceased Suresh. 33. It is true that the prosecution has succeeded in establishing the two prior incidents under which the appellant sustained injuries. But, according to us, the mere establishment of the above two prior incidents are not sufficient to hold that the appellant was motivated to commit murder of the deceased Suresh, particularly when the present incident has no nexus with the so-called incidents, which had taken place much earlier. 34. In the light of the above discussion and in view of the evidence and materials on record, the prosecution has miserably failed to establish the circumstances, which are sought to be established Crl.A.No.1836 of 2009 :-53-: with cogent evidence and materials. The proved circumstances are not sufficient in its cumulative effect to complete the chain and the same are not sufficient to point unerringly towards the guilt of the accused and the facts and circumstances cannot be treated as incompatible and inconsistent with the innocence of the appellant. That being the position, we are unable to approve the finding and conviction recorded by the trial court against the appellant. Thus, we are of the considered opinion that the prosecution has miserably failed to prove its allegation against the appellant beyond reasonable doubt and accordingly, the conviction recorded by the trial court is set aside. In the result, we allow this appeal, setting aside the judgment dated 31.7.2008 in S.C.No.356 of 2006 of the court of the Ist Additional Sessions Judge, Ernakulam and the appellant/accused is acquitted of all the charges levelled against him and he is set at liberty. As the appellant is found not guilty and he is acquitted of all the charges levelled against him, he is entitled to get released from Crl.A.No.1836 of 2009 :-54-: the jail forthwith, if he is not required in any other case. Therefore, the Registry is directed to forward a gist of this judgment to the Superintendent of Open Prison, Thiruvananthapuram, immediately for appropriate action in this matter. Sd/- **V.K.MOHANAN, Judge** Sd/- **B.KEMAL PASHA, Judge** MBS/ -true copy- P.S.TO JUDGE. 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