REGHUKUMAR @ REGHU, S/O.KURUMBAN C/O SUDHEER T.C. @ SUDHI, POTANAMGIRI HOUSE, BHASKRAN COLONY, IRUMPANAM THRIPUNITHURA R/O PANTHALKOOTTAM, THURUTHIPARAMBU, CHLAKUDY, THRISSUR v. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, FOR CBI, HIGH COURT OF KERALA, ERNAKULAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 06TH DAY OF DECEMBER 2018/15TH AGRAHAYANA, 1940** ## **CRL.A.No. 43 of 2013** **AGAINST THE JUDGMENT IN SC 355/2009 of ADDITIONAL SESSIONS COURT, ERNAKULAM DATED 24-09-2012** ## **APPELLANT/ACCUSED:** **REGHUKUMAR @ REGHU, S/O.KURUMBAN C/O SUDHEER T.C. @ SUDHI, POTANAMGIRI HOUSE, BHASKRAN COLONY, IRUMPANAM THRIPUNITHURA R/O PANTHALKOOTTAM, THURUTHIPARAMBU, CHLAKUDY, THRISSUR.** **BY ADV. SMT.I.SHEELA DEVI** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, FOR C.B.I. HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY ADV.SASTHAMANGALAM S. AJITHKUMAR SC FOR CBI** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2018, THE COURT ON 6.12.2018 DELIVERED THE FOLLOWING:** Crl.Appeal No.43/2013 -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been filed by the appellant challenging the judgment of conviction and order of sentence passed by the 4[th] Additional Sessions Judge, Ernakulam by which the appellant who was the sole accused in Crime No. 436 of 2004 of Chalakkudy Police Station, was found guilty for offences under Sections 449 and 302 of the Indian Penal Code, 1860 (for brevity 'IPC') and sentenced to undergo imprisonment for life and to pay a fine of `10,000/- (Rupees Ten Thousand only) with default stipulation of one year rigorous imprisonment for offence under Section 449 of I.P.C. and further to undergo imprisonment for life and to pay a fine of `25,000/- (Rupees Twenty Five Thousand only) with default sentence of rigorous imprisonment for two years. The sentences were directed to be run concurrently. 2. The case was originally registered as Crime No. 436 of 2004 and was initially investigated by the local police, Chalakkudy. Subsequently investigation was handed over to the Crime Branch Criminal Investigation Department (for short 'CBCID'). Later, the case was entrusted with the Central Bureau of Crl.Appeal No.43/2013 -:3:- Investigation (for brief 'CBI') and they registered crime afresh with Crime No. RC 6/S/06/CBI/SCB/Che on 25/07/2006. CBI completed the investigation and laid the charge-sheet. 3. The prosecution case is that the appellant/accused who was an earlier worker of CPI(M) was expelled from the said party for misconduct and later through one of his friends Sajeevan, who was the driver of autorikshaw owned by Mohanan Thirumeni of Thiruthoor Mana, Thuruthiparamba, Chalakkudy became closer to them and began active participation in temple activities like cleaning the premises of Vellumbullikaavu Durga Temple, the ancestral temple of Mohanan Thirumeni. In 2003, some disputes arose regarding pathway to the temple with one Nayathodan Johnson which was amicably settled. Accused assisted Sajeevan in cleaning the pathway. Later, when a board of the temple and a thulasithara of the temple were set up on the pathway, Nayathodan Devassy objected as it was in front of his property and lodged a police complaint. Consequently, it was removed and set up at a different place. Accused felt much aggrieved on this and thought that priests of the church were responsible for all the problems in the temple. Another incident Crl.Appeal No.43/2013 -:4:- also furiated his hatred towards the Priests. One of the appellant's friends, Shiju, who was an alcoholic was taken to Divine Retreat Centre, Chalakkudy to cure his addiction. The appellant felt that Shiju was put among mentally deranged persons and was given medicines used for treatment of lunatics. Shiju escaped from there and reportedly narrated the same to the accused. Later, Shiju committed suicide. Accused began to hate Christians and priests and also started smoking ganja. In December 2003, 41 days of pooja was recommended to be conducted in the temple without break. When the poojas were going on, accused felt that Fr.Polly Kannookkadan was deliberately putting Christian songs through loud speakers of the Church to disrupt the poojas of the temple. One day, in the morning, the accused went to the Vicarage of the Church and threatened Fr.Polly Kannookkadan about this. During Onam season of 2004, the accused went to Ernakulam market and purchased a sharp knife from a street vendor and concealed it in the almirah of his sister's house. On 27.08.2004, the appellant told his sister and brother-in-law that he was going to Chalakkudy. He also carried knife along with dress in a plastic carry bag. He Crl.Appeal No.43/2013 -:5:- went for a movie at Ernakulam and then went to Aluva from where he caught a night train and reached Chalakkudy at around 3.00 a.m. The accused then walked to Thuruthiparambu from Chalakkudy Railway Station and waited under a culvert near the road leading to Thuruthiparambu from Analoor. At 5.30 a.m., he heard Church bells ringing and Christian devotional songs from the Church. He took the plastic carry bag containing the knife and went to the Church, entered the Church compound through the open gate and proceeded to the Vicar's Bunglow and hid himself behind the staircase. When he saw Rev.Fr.Job Chittilapally who was praying and walking up and down the veranda, he went behind the Vicar, took out the knife in his hand leaving the carry bag at the stair case. When the priest turned towards the appellant, he stabbed him in his stomach and elsewhere again and again, whereupon the victim fell down on the veranda and breathed his last. The appellant escaped from there carrying the plastic bag and the knife. 4. Prosecution examined PWs 1 to 36 as witnesses, marked Exts.P1 to P42 and identified MOs 1 to 21. In 313 questioning, the appellant denied all the incriminating Crl.Appeal No.43/2013 -:6:- circumstances and pleaded innocence. He adduced no oral evidence. Exts.D1 to D10 were marked from his side. 5. The learned Counsel appearing for and on behalf of the appellant Sri.K.N.Binesh argued that the case against the appellant is totally false. There is absolutely no evidence to connect the appellant with the alleged crime. No direct evidence is available in the case. Prosecution relies on circumstantial evidence. Motive is not proved by the prosecution. Witnesses cited by the prosecution as material has turned hostile to the prosecution. There are many who were at loggerheads with the deceased out of various reasons. No investigation is done in that line. Two weapons were recovered by the investigating agency citing as alleged weapon of offence. The allegation that the appellant was absconding after the incident is falsehood. Alleged extra-judicial confession made by the appellant to PW9 is not at all deposed to by the said witness. The trial Court has completely erred in finding the appellant guilty. Learned Counsel vehemently argued for an acquittal. He relies on the following judgments of the Apex Court to support his arguments:- (i) _**Yusuf S.K. v. State of West Bengal**_ (AIR 2011 SC Crl.Appeal No.43/2013 -:7:- 2283) . In this case, extra-judicial confession was not relied on by the Apex Court. (ii) _**Mustkeem @ Sirajudeen v. State of Rajasthan**_ (AIR 2011 SC 2769). This is cited to emphasise a point on S.27. With regard to Section 27 of the Act, what is important is discovery of the material object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. (iii) _**Chellan v. State of Kerala**_ (2018 KHC 142). This case is cited to emphasise that when a case solely rests on circumstantial evidence, each and every incriminating circumstance must be clearly established by reliable and clinching evidence and circumstances so proved must form a chain of events from which the only irresistible conclusion which could be drawn is the guilt of the accused and no other Crl.Appeal No.43/2013 -:8:- hypothesis against the guilt is possible. (iv) _**Methalatt Balan v. State of Kerala**_ (2017 (5) KHC 35). In this case, it was held that extra-judicial confession can be acted upon as such without any addition or substitution and it should be capable of pointing towards the guilt of the accused alone, otherwise it cannot be acted upon unless there is sufficient corroboration. (v) _**Asharaf V.P. v. State of Kerala**_ (2018 KHC 164). In this case it was held that in order to have the application of S.27 of the Evidence Act in criminal matter, fact should be an incriminating fact discovered pursuant to confession made by accused while under police custody. (vi) _**Mottammal Shaji @ Kakka Shaji and Others v.**_ _**State of Kerala**_ (2017 KHC 155). In this case, it was held that it may be imprudent to convict a person solely on the factum of recovery under S.27 without establishing other corroborating circumstances beyond any pale of dispute. (vii) _**Unnikrishnan v. State of Kerala**_ (2017 (2) KHC 123). In this case, it was held that when any fact is deposed as discovered in consequence of a disclosure statement, prosecution Crl.Appeal No.43/2013 -:9:- has to establish that the said fact is relevant and that it is an incriminating factor without which no fact discovered in consequence of disclosure statement can be brought under the purview of S.27. 6. The learned Prosecutor for CBI argued that the Court below is justified in arriving at the present conclusion. Though the witnesses turned hostile, other available evidence are sufficient to prove the guilt of the appellant. Based on the disclosure statement of the appellant Ext.P24(a), MO15 knife was recovered through Ext.P24 mahazar. Motive for the offence is religious enmity. Prosecution brought in enough evidence to prove the involvement of the appellant. According to him, medical, recovery and other scientific evidence would establish the guilt of the appellant and the trial Court is justified in convicting the appellant. Hence, no interference is called for. 7. Evidence, in brief, is as follows: PW1 is the then Sacristan/Sexton of Varaprasada Matha Catholic Church, Thuruthiparambu who lodged Ext.P1 F.I. Statement to police at 7.30 a.m. on 28/08/2004. MOs 1 to 9 items were identified by him as that of the deceased Vicar. Crl.Appeal No.43/2013 -:10:- 8. PW2 is an attestor to the inquest report. PW3 is the altar boy who gave long bell after seeing the dead body of Vicar. PW5 identified MOs 1 to 14 belonging to the victim. PW6 is an attestor to Ext.P3 scene mahazar. PW7 Mani was a family member of Thiruthoor Mana and he turned hostile to the prosecution. Ext.P4 series were marked through him. PW8 is the photographer who took the photographs of the deceased which are marked as Ext.P5 series (11 nos.). PW9 turned hostile to the prosecution. Exts.P6 and P7 series were marked through him. PW10 is the brother of PW9. He also turned hostile to the prosecution. Exts.P8 and P9 were marked through him. PW12 also turned hostile and Ext.P10 series contradictions were marked through her. PW13 also was declared hostile and Ext.P11 series were marked through her. So was PW14 who is the husband of PW13 and Ext.P12 series were marked through him. PWs 15 and 16 also turned hostile and Exts.P13 series and P14 series were marked through them. PW18 was declared hostile and Ext.P15 series is marked through him. 9. PW19 is the then Assistant Chemical Examiner, RCEL Ernakulam. Ext.P16 certificate is issued by him. According to Crl.Appeal No.43/2013 -:11:- him, human blood was detected in item nos. 1 to 6. The blood group in items 1 to 4 and 6 was B group. Item no. 6 was MO15 knife recovered at the instance of the accused 10. PW20 is the immediate predecessor in the office of Fr.Job Chittilapally. He deposed about the threat posed by the accused earlier to him and to the people of parish. 11. PW21 Mohanan Namboodiri turned hostile to the prosecution. Ext.P17 series were marked through him. PW22 identified the accused and stated that the accused had worked under him. PW23 is an attestor to Ext.P18 recovery mahazar of MO15 knife and Ext.P19 recovery mahazar of MO17 plastic cover. PW24 is the then S.I. of Police, Chalakkudy. He registered Ext.P20 FIR based on Ext.P1 FIS given by PW1 on 28/08/2004 at 7.30 a.m. 12. PW25 is the then Dy.S.P, Irinjalakuda. He conducted the inquest on 28/08/2004 morning and Ext.P2 is the inquest report. He seized MOs 1 to 14 from the dead body. MOs 18 and 19 are cellophane tapes of right and left palm of the deceased. He collected MO20 cellophane impressions also. He prepared Ext.P3 scene mahazar on the same day at 11.45 a.m. 13. PW26 is the then C.I. of Police, Chalakkudy Police Crl.Appeal No.43/2013 -:12:- Station. He proved confronted portions of 161 statements of the witnesses. According to him, the appellant was absconding. He arrested the appellant on 07/09/2004 at 3.30 p.m. from Bhaskar Colony, Irumpanam, Thripunithura. Ext.P22 is the arrest memo and Ext.P23 is the arrest intimation. He effected recovery of MO15 knife, MO16 shirt and MO17 plastic cover based on the disclosure statement Ext.P24 of the appellant and Ext.P24(a) is its original. Ext.P18 is the seizure mahazar of MO15 knife. 14. PW27 is the then Assistant Professor and Deputy Police Surgeon, Medical College Hospital, Thrissur. He conducted postmortem examination of the Vicar, aged 72 years. He noted the following five ante-mortem injuries:- _“(1) Incised penetrating wound 6.5x3.5 cm on the upper part of abdomen obliquely placed with its upper end 3 cm outer to midline and 19 cm below left collar bone. Depth was 9.7 cm. The upper end of the wound was split and the lower end was sharply cut. The wound had cut the mesentery 4x3 cm. The wound had directed backwards and slightly downwards and had cut the small intestine 1.5x 1 cm which was 12 cm away from the fixed loop._ _(2) 'V' shaped incised penetrating wound 8x2.2 cm on the upper part of abdomen oblique with its upper end 9.3 cm outer to midline and 2 cm to the right of injury No.1 The depth was_ _9.2 cm. The wound had directed backwards and slightly_ Crl.Appeal No.43/2013 ## -:13:- _downwards and to the right. It had cut the lower border of the left lobe of liver. The wound had cut the small intestine at two sites 1x0.5 and 1x1.5 cm which were 6cm apart and the first one was 16 cm away from the fixed loop._ _(3) Incised penetrating wound 4.5x2 cm oblique on the front of abdomen 1 cm outer to midline and 10 cm below the lower end of injury No.1. The depth was 9 cm. The wound was directed backwards slightly downwards and to the right. It had cut the abdominal aorta 4x1 cm through its fully thickness. On opening the abdominal cavity there was 400 ml of fluid blood and 500 gm of clotted blood in the abdominal cavity._ _(4) Incised wound 5 x 1 cm on the dorsum of left hand muscle deep in its lower end skin deep in the upper end, obliquely placed with its lower end 2 cm above the inter digital area between index and middle finger._ _(5) Incised wound 2x2 skin deep on the upper part of abdomen midline 7 cm below injury No.4._ He testified that all the injuries are fatal and are sufficient in the ordinary course of nature to cause death. It is his version that the said injuries can be caused by MO15 knife. He also proved Ext.P28 certificate of chemical examiner which shows the blood group of the deceased as B Rh+ve. 15. PW28 is the then Assistant Chemical Examiner, RCEL, Ernakulam who issued Ext.P29 certificate. It shows that the blood contained in MO21 knife was B Rh+ve. 16. PW29 is the mother of the appellant. She turned Crl.Appeal No.43/2013 -:14:- hostile to the prosecution. 17. PW30 is the then Assistant Meteorologist, Gr.I, Climate Observation Centre, Thiruvananthapuram. She proved Ext.P31 extract of register kept in her office showing details of the heavy rainfall in Chalakkudy for the period from 09/09/2004 to 28/03/2004. Ext.P32 is the covering letter for Ext.P32. 18. PW31 is the then Assistant Chemical Examiner, SCEL, Thiruvananthapuram who deposed about the grouping of blood. 19. PW32 turned hostile to the prosecution. Ext.P33 series were marked through him. 20. PW33 is the Judicial Magistrate who recorded Ext.P6 Section 164 statement of PW9. He stated that Ext.P6 contains the signature and thumb impression of the witness. 21. PW34 is the then Superintendent of Police, Crime Branch, CBCID, Special Investigation Group II, Ernakulam. He took up investigation on 20/09/2004. Ext.P34 is the test result of brain mapping conducted on the accused on 21/03/2005 and Ext.P35 is the result of polygraph test conducted on the accused on 22/03/2005. Ext.P37 is the report of narco analysis. All the above tests were conducted at FSL, Bangalore. He deposed that the Crl.Appeal No.43/2013 -:15:- team thus ruled out criminal conspiracy behind the crime. 22. PW35 was the C.I and one among the members of the Special Investigation Team constituted under PW34. He seized MO21 knife under Ext.P36 seizure mahazar as produced by the then Vicar Fr.Raphel Ambadan. He identified MO21 knife. 23. PW36 was the Inspector of Police, CBI, SCB, Chennai. Ext.P38 is the FIR prepared by U.T.Nandakumar, Dy.S.P and the case was handed over to him. He proved Ext.P39 death certificate of CW23 Babu, the brother of the accused. He also collected Exts.P31 and P32 from PW30. PWs 7, 10, 11 and 21 were subjected to polygraph examination and it revealed that they were not involved in the crime. He proved Exts.P40 and P41 reports regarding blood grouping and origin test. He also collected Ext.P42 report regarding DNA analysis of items 4 to 6 and 8 and found it as that of one and the same person. He submitted the final report. 24. According to the prosecution, the motive behind the crime was enmity, particularly religious, of the appellant towards Christians generally and to priests particularly and that led him to kill the deceased who was a Vicar of the church in the locality. It Crl.Appeal No.43/2013 -:16:- is their further allegation that he purchased a knife from Ernakulam and kept it in the almirah of his sister's house and on 27.08.2004, he took it with him to Ernakulam where he went for a cinema and from there, he reached Thuruthiparambu on next day i.e., 28/08/2004 early morning at 3.00 by train, waited there till 5.30 a.m and thereafter proceeded to the Church, trespassed into the Church compound and then to the Bunglaw of Vicar, hid himself there with the knife, and on seeing the Vicar, he attacked the victim and inflicted stab injuries on his abdomen and other parts of body due to which the injured priest died on the spot. 25. Coming to the evidence, among other things, the Court below relied on the following evidence to arrive at the conclusion that the appellant herein is guilty for the offence alleged by the prosecution. 1. Motive for the crime was enmity, particularly religious hatred towards Christians generally and to priests particularly. 2. Extra-judicial confession made by the appellant to PW9 soon after the commission of the incident. 3. Evidence of subsequent conduct (S.8 of the Evidence Act) of Crl.Appeal No.43/2013 -:17:- the appellant in making extra-judicial confession to PW9. 4. The appellant was absconding soon after the incident and he was not available in the locality. 5. Recovery of MO15 knife on his arrest after 10 days of alleged incident and based on his disclosure statement Ext.P24 through Ext.P18 mahazar. 6. MO15 knife was stained with B group blood. 7. MO16 shirt worn by the appellant at the time of commission of crime and MO17 plastic cover in which he concealed and carried MO15 knife was recovered at his instance as per Ext.P19 recovery mahazar. 8. Both MO16 and MO17 were stained with blood. 26. As far as motive is concerned, even the prosecution allegation is confined to enmity towards Christians generally and towards priests particularly. Prosecution does not have a case that the accused was having any specific motive against the deceased to commit a grave offence like murder. In our view, nothing concrete is brought in evidence to show the motivation of the accused. Under these circumstances, we are inclined to hold that prosecution failed to prove the motive for the crime. Crl.Appeal No.43/2013 -:18:- 27. It can also be seen that apart from the recovery of MO15 knife, no other allegation levelled against the appellant are found to be proved beyond doubt by the prosecution. It is interesting to note that another knife (MO21) was also brought in evidence which was blood-stained. 28. There is no evidence to show that MO16 shirt belongs to the appellant or that he wore it on the particular day of incident. 29. Most importantly, the whole case rests on the reliability of the extra-judicial confession made by the appellant to PW9. Extra-judicial confession is a weak piece of evidence and the Courts are to view it with greater care and caution. To form the basis of a conviction, extra-judicial concession should not suffer from any material discrepancy and inherent improbability. Principles in respect of evidentiary value and reliability of extrajudicial concession have been summarized by the Apex Court in _**Sahadevan and Another v. State of T.N.**_ (AIR 2012 SC 2435) as under:- _"i. The extra-judicial confession is a weak evidence by itself. It has to be examined by the Court with greater_ Crl.Appeal No.43/2013 -:19:- _care and caution;_ _ii. It should be made voluntarily and should be truthful;_ _iii. It should inspire confidence;_ _iv. An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence;_ _v. For an extra-judicial confession to be the oasis of conviction, it should not suffer from any material discrepancies and inherent improbabilities;_ _vi. Such statement essentially has to be proved like any other fact and in accordance with law."_ 30. The alleged extra-judicial confession cannot even be looked into as PW9 turned hostile to the prosecution. Ext.P6 is a whole-sale marking of 164 statement of PW9 which is illegal and hence cannot be taken into account for the purpose of proving the extra-judicial confession. Evidence of PW9 cannot be relied on. The extra-judicial confession being the vital evidence relied on by the trial Court to come to its impugned conclusion, its crumbling down inevitably destroys the entire prosecution case. 31. Indeed the blood of a priest is shed. There is no direct evidence for the crime. Proved circumstances alone can bring clarity as to the real aggressor. Prosecution is yet to prove who Crl.Appeal No.43/2013 -:20:- the actual culprit was or were. Needless to say, prosecution miserably failed to prove the case against the appellant. We extend benefit of doubt to the appellant/accused and he is set free of all the charges. In the result, appeal is allowed. The conviction and sentence of the appellant/accused is set aside. The accused shall be released from the prison forthwith, if his confinement is not required in any other case. **Sd/-** **A.M.SHAFFIQUE JUDGE Sd/-** **P.SOMARAJAN** Rp //True Copy// **JUDGE** PS to Judge