SASI @ POTTAN SASI v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 6TH DAY OF DECEMBER 2017/15TH AGRAHAYANA, 1939 CRL.A.No. 795 of 2013 (G) -------------------------------------AGAINST THE JUDGMENT IN SC 2692/2006 of ADDL.DIST. COURT (ADHOC) III, TRIVANDRUM, DATED 09-05-2012 CP No.230/2006 of J.M.F.C.-I, NEYYATTINKARA IN CRIME No.161/06 OF ARYANCODE POLICE STATION APPELLANT / ACCUSED :- --------------------------------------SASI @ POTTAN SASI, S/o DAMODHARAN, C.NO. 7104, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. SMT.SYLAJA.S.L (STATE BRIEF) RESPONDENT / COMPLAINANT : - --------------------------------------------------STATE OF KERALA, REPRESENTED BY THE C.I. OF POLICE, VELLARADA, THROUGH THE PUBLIC PROSECUTOR, THE HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.10.2017. THE COURT ON 06.12.2017 DELIVERED THE FOLLOWING: DMR/- ## **A.M.SHAFFIQUE & P. SOMARAJAN, JJ.** -----------------------------------------------Crl.Appeal No.795 of 2013 -----------------------------------------------Dated this the 6[th] day of December, 2017 J U D G M E N T ## **Somarajan, J.** This appeal is against the judgment of conviction and order of sentence under Sections 302 and 341 IPC against the appellant/accused in Sessions Case No.2692/2006 of Additional Sessions Judge, Thiruvananthapuram. 2. The prosecution case is that the victim Usha Kumari met with a sad death in the hands of her father, the accused herein. The alleged incident happened on 14.06.2006 in and around 4.45 p.m at the presence of her son. The father of the victim, the accused herein, attempted to strangle her and struck on her neck with the handle of a knife and stabbed her on her left forehead and she succumbed to the injuries. The motive behind the crime is the alleged intention on the part of the victim and her husband to sell off her immovable property given by her mother. The prime witnesses to the alleged incident are none Crl.Appeal No.795 of 2013 2 else, the husband and the son of the deceased, who were examined as PW1 and PW5 respectively by the prosecution, besides the oral evidence tendered by two neighbors, PW2 and PW6. The alleged incident happened at the house compound of the victim wherein she was living along with her husband PW1, son PW5, and her father, the accused herein. The learned Sessions Judge found the accused guilty of offence under Sections 302 and 341 IPC and convicted thereunder and sentenced to undergo rigorous imprisonment for one year for the offence under Section 341 IPC and rigorous imprisonment for life for the offence under Section 302 IPC, by the impugned judgment. 3. The cause of death of the victim is stated to be due to blunt injury sustained on her neck. The injuries noted as antemortem in Exhibit P3 are the following :- “1. Incised wound 2.5x1.5x0.5cm, on the left side of forehead, vertical its lower end 2cm outer to midline and 3cm above eyebrow. 2. Abrasion 0.5x0.5cm on the back of right middle finger 2cm below its root. - 3.Abrasion 0.8x0.3cm on the back of right ring finger Crl.Appeal No.795 of 2013 3 1cm below its root. 4. Abrasion 3x1 cm on the top of right foot, 7.5cm behind root of little toe. 5. Four abrasions, 0.5x0.5cm, 0.5x0.2cm, 0.2x0.2cm and 0.2x0.2cm, 1cm, 2cm and 1cm apart respectively and in line with each other, on the left side of front of neck, 4cm to the left of midline and 6cm below jawbone. 6. Two abrasions 1x0.2cm and 0.5x0.2cm, one below the other and 1cm apart on the left side of front of neck, the outer end of the first one, 1.5cm below the outer end of injury No.5. 7. Abrasion 4x0.2cm on the left side of back of neck, horizontal 7.5cm below the tip of mastoid process. Flap dissection of neck done under bloodless field revealed the following findings. Subcutaneous tissue seen contused over an area 10x9.5cm on the front of neck across midline, just above root of neck. Contusion 1x0.5 whole thickness of right sternomastoid muscle, 5.5cm above its clavicular attachment. Contusion 5x2x1cm of left sternomastoid muscle 3cms above its clavicular attachment. Contusion 7x2x1.5cm of left sternohyoid muscle just above its clavicular attachment. Contusion 6x1.5x1.5cm on the left omohyoid muscle, 3cm below its attachment to the hyoid bone. Contusion 2x1x0.5cm of left sternothyroid muscle at the level of its attachment to thyroid. Hyoid bone, other muscles, vessels and cartilages of neck were normal and intact. Crl.Appeal No.795 of 2013 4 Brain showed bilateral subdural and subarachnoid bleeding and was oedematous. 8. Abrasion 1.5x0.5cm on the front of left forearm 7cm below elbow. 9. Abrasion 1x0.5cm on the front of left leg 8.5cm below knee.” 4. According to the Doctor who conducted autopsy on the body of victim, injury No.1 could be possible by stabbing with a knife (MO1) and injury Nos.2 and 3 could be defensive wounds. Injury Nos.4, 8 and 9 can be possible due to forcible impact on rough surface. Injury Nos. 5, 6 and 7 can be caused by forcible grasp on the neck by hand. 5. One of the star witnesses relied on by the prosecution is PW5, a minor boy aged only 4 years at the time of alleged incident. The learned Sessions Judge did not make any attempt to testify the probative value of the evidence adduced by PW5, though he was a minor aged only 4 years at the time of alleged incident. He was aged 9 years at the time of examination and had testified to stand as a competent witness and to give rational answers. That does not by itself relieve the court in testing the Crl.Appeal No.795 of 2013 5 genuineness and the probative value of the oral evidence adduced. Competency to stand as a witness and probative value of the evidence are governed by different fields. It is the duty of the court to ascertain not only the competency of a minor to stand as a witness, but also the probative value and the admissibility of the oral evidence adduced, especially when the witness examined is a minor of tender age. The competency of a minor to stand as a witness has to be tested in relation to the time and the date on which he was examined as a witness. On the other hand, the reliability of the evidence adduced has to be primarily assessed in relation to the time and date in which he had witnessed the alleged incident based on his power of perception, intelligence. It has to be tested in relation to the time in which the offence was committed. The factors such as whether he is a tutored witness tainted by any ill-will or ill motive should be tested in relation to the time in which he was examined. In short, the reliability of the evidence adduced by a minor witness has to be tested both in relation to the time in which the offence was committed or the incident had happened Crl.Appeal No.795 of 2013 6 so as to assess his power of perception, intelligence, mental condition, his state of affairs as on the date of commission of offence and also in relation to the time in which he was examined as a witness so as to satisfy whether he is tutored witness tainted by any ill-will, ill motive etc. The scope of enquiry regarding the competency to stand as a witness by a minor is related only to the time in which he was examined as a witness. But, the scope of enquiry regarding the probative value and genuineness of the oral evidence covers both the time by which the incident had happened and witness was examined. 6. The Apex Court had the occasion to consider the probative value of oral testimony of a minor witness in **State of U.P. v. Krishnan Master and another (AIR 2010 SC 3071)** wherein it was held that there is no principle of law that is inconceivable that a child of tender age would not be able to recapitulate the facts in his memory witnessed by him long ago. It would be doing injustice to a child witness possessing sharp memory to say that it is inconceivable for him to recapitulate the facts in his memory witnessed by him long ago. Crl.Appeal No.795 of 2013 7 ## 7. In **Rathan Singh Dalsukhbhai Nayak v. State of** **Gujarat (AIR 2004 SC 23)** it was held that the Evidence Act does not prescribe any particular age as a determinative factor to keep a witness to be competent. 8. A Division Bench of this Court in **Baiju v. State of Kerala [2017 (4) KHC 445 (DB)]** (in which I am also a member) had the occasion to consider the difference between the expression 'competency to stand as witness' and 'reliability of the evidence adduced' and held thus: “Any person can be testified unless the Court considered that the witness is prevented from understanding the questions put on him/her or giving rational answers to the questions because of the tender age. There is lot of difference in between the expression “competency to stand as a witness” and “reliability of the evidence adduced”. The “reliability” of the oral evidence tendered would be a different one and it should be ascertained at the time of final argument with the attending circumstances. It is not at all permissible to substitute “competency of witness” in the place of “reliability of evidence” adduced. The expression “reliability” stands for the probative value of the evidence adduced and whether it can be applied as piece of evidence in the matter in Crl.Appeal No.795 of 2013 8 dispute came up for adjudication. A witness, especially a child witness, may be competent to give oral evidence or to stand as a witness. The competency to stand as a witness will not by itself make the testimony as reliable”. 9. In the instance case, there cannot be any doubt with respect to the competency of PW5 to stand as a competent witness. But, the oral testimony given by him _prima facie_ appears to be tainted and tutored as he had opted to give an entirely different version exculpating his father, PW1, who admittedly pelted stones against the accused in the very same incident. PW1 had admitted that he had pelted stones to the accused while he was standing on a height of four feet over a ridge. He had also admitted that he pelted three stones to the accused and one stone hit against his leg. Though PW5, the child witness, narrated each and every part of the transaction with its precision, he did not disclose the attack made by his father, PW1, towards the accused by pelting stones. Further, he did not remember the number of rooms in his house as on the date of alleged incident. He had also deposed that he could not Crl.Appeal No.795 of 2013 9 remember none of his classmates in the nursery. Admittedly, PW5 is under the care, custody and maintenance of his father, PW1. The fact that he did not remember the number of rooms in his house as on the date of alleged incident would show lack of proper perception at the time of alleged incident, i.e. at the age of 4 years, and lack of sharp memory at the time when he was examined as PW5, i.e at the age of 9 years, added by the fact that he could not remember even one of his classmates in the nursery at his age of 9 years. The possibility of tutoring of a child witness who was aged only 4 years at the time of alleged incident has not been ruled out by the learned Sessions Judge, especially in the light of admission as spoken by his father, PW1, regarding his role in the said transaction. A strict scrutiny of the oral evidence of PW5 would show that he had given a narrative picture with its precision, what he had seen/experienced at his tender age of 4 years and did not mention the act of his father pelting stones against the accused on three times. Hence, we are of the considered view that PW5 is only a tutored witness, who was not possessing either intelligence or power of perception at Crl.Appeal No.795 of 2013 10 his age of 4 years when the alleged incident happened and lack of sharp memory as on the date of his examination to give a vivid picture of what actually he had seen and experienced on the alleged day with its precision, as spoken by him while in the box, and no reliance can be placed on his oral testimony. Further, the omission on his part to speak about the alleged role of his father, PW1, in the alleged transaction of pelting stones against the accused by standing on a ridge is so material, especially when he had admitted that at that time the victim, his mother, was standing very near and close to the accused. It is thereafter, even according to PW5, his father took him to a nearby house. But, he did not remain there, but came back to his house compound, the place of occurrence, and had seen the accused inflicting a stab injury on the head of his mother using a knife by holding on her tuft. 10. The medical evidence adduced would show that antemortem injury Nos. 5, 6 and 7, which are the injuries on the left side of front of neck of the victim, could be caused by forcible grasp on the neck by hand and injury Nos. 4, 8 and 9 could be Crl.Appeal No.795 of 2013 11 possible due to forcible impact on rough surface. The cause of death is due to the blunt injuries sustained on the neck of the victim. PW5 did not have any case that he had seen the accused inflicting any injury on the neck of the victim or holding on her neck either by using his hand or otherwise. No such evidence was adduced by PW5. On the other hand, what is spoken by PW5 is that he had seen the accused holding on the tuft of the victim and causing stab injury on her head. There is corresponding stab injury on the head of the victim, which could be possible by stabbing with a knife like MO1, according to the Doctor who conducted post-mortem examination on the body of the deceased and injury Nos. 2 and 3 could be defensive wounds. There is only one stab injury on the head of the victim. It is not spoken by PW5 or PW1 how the victim sustained ante-mortem injury Nos.5, 6 and 7, which are the cause for the death of victim. The omissions to state about the attack made by PW1, father of PW5, by pelting stones against the accused standing on a ridge, hit of one stone against the accused is not only fatal, especially when his mother, the victim, was standing very close to the accused at Crl.Appeal No.795 of 2013 12 that time, but also amounts concealment of a relevant factor which forms part of the same transaction. Further, the injuries noted by the Doctor who conducted autopsy as ante-mortem injuries 5, 6 and 7, by its nature, would not suggest its origin by the impact of MO1 weapon. In short, there is nothing in the oral evidence tendered by PW1 to show how the victim sustained ante-mortem injury Nos. 5 to 7, which is the real cause for the death of the victim. 11. The very genesis for the alleged incident is resting on the dispute existed between the victim and her husband on one side and the accused on the other side. The motive for the crime is also sought to be established by the prosecution based on the above said dispute that the victim and her husband decided to sell the immovable property of the victim, which was given to her twenty years back by her mother, and that it was objected and resisted by the accused and tried to unleash attack on PW1 and his wife, the victim. The accused is none else than her father. But, the oral testimony of PW1 admits that he had taken away the title deed of the said property and entrusted the same with Crl.Appeal No.795 of 2013 13 PW6 with an assurance to take back the same after a short time during the course of alleged incident. The impact of admission made by PW1 regarding his role in the transaction hence deserves detailed consideration. 12. PW1, the father of PW5 and husband of the victim, had also testified what actually happened on the ill fated day. According to him, just after the alleged incident the police took him in custody and he was released on bail under the security of two persons. After that, he went to Kattappana, his native place, along with his child aged 4 years (PW5). The incident happened while they were living in the property of his wife, the victim Usha Kumari. This property was given to her by her mother Saraswathi. The mother of the victim, Saraswathi, passed away about twenty years back. A day before the alleged incident, PW1 went to the house of his aunt at Kara and came back to the place of occurrence on the ill-fated day by 12.00 noon. He had purchased some meat and tapioca from the nearby market and brought the same to his house. After food, he went for a sleep. It is at that time he heard some utterance from the father of the 14 Crl.Appeal No.795 of 2013 victim, the accused herein, against him. On seeing PW1, the accused took a knife and proceeded towards him and chased after him to a distance with the knife in his hand. Then the accused brought some dried coconut leaves near to the scooter kept on the courtyard and set fire to the dried leaves. This was prevented by PW1 by taking a stone on his hand and threatened the accused. When the accused attempted to attack PW1, he went away and climbed on a ridge and took some stones and pelted against the accused and one of the stones hit on his leg. Then he volunteered himself by saying that he had pelted stones against the accused in a clandestine manner without proper attention. This was continued for about 1 to 1 ½ hours. At about 2.00 to 2.30 p.m., PW1 sought the help of one Sudha for summoning the police. Thereon she contacted an Advocate and brought the telephone number. Thereon, PW1 made a telephone call to the Neyyattinkara Police Station, but he was asked to contact with Aryancode Police Station. So, he returned to the place of occurrence. It is at that time, his son (PW5) told him that the accused fisted his mother with a knife on her head and Crl.Appeal No.795 of 2013 15 pulled her tuft. He saw the victim Usha lying in front of the house. Immediately, he took her on his shoulder and brought her to nearby road side and poured some drinking water to her mouth. But, the water remained in the mouth signaling the death of the victim. Thereon he took his son, PW5, and left the place on his scooter. On the way, he had seen the Sub Inspector of Police and another policeman who were proceeding towards the place of incident in a motor bike. He had also admitted that he did not have any direct knowledge by whom the victim was removed to the hospital. Further, he admitted that he had been taken into custody by the police by that time and kept in the police custody for three consecutive days. He was released on bail only on the third day. This would sufficiently show that PW1 was a suspect at the initial stage. 13. A close scrutiny of the oral evidence tendered by PW1 would show that he was trying hard to develop an inculpating story against the accused so as to appear that he is innocent in the alleged incident. During the course of cross examination, he had admitted that he entered into a second marriage just eight Crl.Appeal No.795 of 2013 16 months before his examination. It is not clear why he had made a false statement regarding his second marriage which was solemnized about three years back. It was not denied by him during cross-examination. This would indicate that he was actually trying to conceal something so as to make it appear that the accused had done all this mischief and that he is innocent. According to PW1 he brought the injured from the place of occurrence to the side of the nearby road. But, the subsequent conduct of PW1 after ascertaining that she is dead is _prima facie_ found to be not normal. After ascertaining that the victim is dead, he did not make any attempt to call for the attention of others or to intimate the matter to the nearby police station. But, immediately he took his son and went away from that place on his scooter. During the course of the alleged incident he took his son to the nearby house. But, after realizing that his wife is dead, he took his son and went away from that place. The said conduct of PW1 is against the normal behavior of a person. It is an indication that he was having something to conceal or an intention to flee away from the place of occurrence. It is not Crl.Appeal No.795 of 2013 17 explained by him why he left the place immediately after realizing that his wife is dead. 14. The genesis of the incident, as discussed earlier, is the objection raised by the accused in selling the property of his elder daughter, the victim herein. But, it is PW1, her husband, who took away the document of title from her custody during the course of alleged incident and not the accused. Further, PW6 deposed that he went to the place of occurrence on hearing hue and cry and found some head load workers standing there and also the quarrel between the accused and PW1. After 45 minutes, PW1 came to the house of PW6 and handed over the title deed of the property of his wife with a request to keep the same there with an assurance that he would take back the same after some time. It is not spoken by PW1 under what circumstance the title deed of the property of his wife came into his hand, why it was not kept in the house of Usha Kumari, the victim, and why he had taken the same and entrusted with PW6. This has to be read along with the admission made by PW1 that he made a demand to his wife to sell the property owned by her, Crl.Appeal No.795 of 2013 18 having an extent of 32 cents, and to purchase some property in Kattappana. If it was really agreed by his wife, there is no occasion for him to take away the document of title from the custody of his wife. Even according to him, the title deed was kept in his scooter before the alleged incident for the purpose of selling the property and the same was again taken up by him and given to PW6 at the time of alleged incident and came back to the place of occurrence. This would be an indication that the title deed of the property of the victim had been taken away by PW1, her husband, and entrusted the same with PW6 in and around the time in which the alleged incident happened. The only possible inference is that he took the same from the custody of the victim either at the time of alleged incident or at any point of time prior to the incident. 15. It was also brought out through PW9 that they were brought up by the accused after the death of their mother twenty years back. The fact that the title deed of the property belonged to the victim had been taken away by PW1, her husband, during the course of alleged incident would be relevant and chances of Crl.Appeal No.795 of 2013 19 quarrel and dispute in between the victim and the accused regarding the sale of property belonged to the victim cannot be ruled out, especially when PW1 had admitted that he was having financial liability which comes to Rs.10000/- to 50,000/-. The demand for selling the property was raised by him. Hence, the strained relationship between the victim and her husband, PW1, and the quarrel or dispute in connection with the demand for sale of the property cannot be ruled out. Another contention was also raised by the appellant regarding the gravity of the motive, if any, possessed by the accused for the commission of offence and whether it is sufficient to lead him to commit a heinous crime of murder of his daughter simply on the reason that she refused to accede the demand of her father, not to sell her property. At this juncture, it is worthful to note that nobody has come forward to purchase the said property and the prosecution did not have any such case. The intention to commit an offence - guilty consciousness/ _mensrea,_ normally known to the person who committed the offence. It may not be known to the prosecution invariably in all cases. Sometimes it may not be discernible from Crl.Appeal No.795 of 2013 20 the attending circumstances. When there is a strained relationship, it would suffice. But, in the instant case, the accused is the father and the victim is his elder daughter and nobody had come forward to purchase the property and no negotiations were conducted either by the victim or by her husband. The demand to sell the property was raised by her husband, who took away the title deed of the property during the course of alleged incident. 16. The circumstance brought out gives more than one hypothesis rather than the guilt of the accused as the husband of the victim (PW1) had admitted that he had pelted stones towards the accused, who was standing in the courtyard, from a ridge having a height of four feet. PW5 had admitted the presence of his mother, the victim herein, standing close to his grand father at the time of alleged quarrel. This has to be appreciated in reference to the lack of evidence how injury Nos.5 to 7 originated. All these three injuries are abrasions without having any nail mark or linear abrasions. There is nothing in injury Nos. 5 to 7 to suggest that these injuries can be caused by forcible Crl.Appeal No.795 of 2013 21 grasp on the neck by hand. If there is forcible grasp on the neck by hand resulting in injury Nos.5 to 7, which are extensive in nature, causing 10x9.5cm contusion on subcutaneous tissue just above the root of neck, contusion 5x2x1cm of left of sternomastoid muscle, contusion 7x2x1.5cm of left sternohyoid muscle, contusion 6x1.5x1.5 cm of left omohyoid muscle and contusion over the thyroid coupled with bilateral subdural and subarachnoid bleeding and oedematous brain which are the resultant effect of injury Nos.5 to 7 would cause immediate collapse of the victim and the victim may become unconscious due to the effect of the above said injuries. But, the version given by PW5 that he did not see any attack on the victim on her neck and had seen only the accused pulling over her hair and inflicting an injury on her head with a knife shows that both the accused and the victim were in a standing position at that time. From the oral evidence of PW5 it can be presumed that he had only seen the latter part of the incident and the former part would be with respect to the injuries caused on her neck. The fact that she was not unconscious and not collapsed in Crl.Appeal No.795 of 2013 22 furtherance of injury Nos.5 to 7 and she was found to be grappling in the hands of accused in a standing position would show that she was fully conscious and in a defensive mood at the time when she had received injury on her head from the hands of accused, as spoken by PW5. Injury Nos. 2 and 3 are defensive injuries which would also show that she was conscious and in a standing position when she received stab injury on her head. Further, the opinion given by PW8 Doctor is only the possibility of causing the above said injuries by hand. Nothing is mentioned or whispered in Exhibit P3 post-mortem certificate or at the time of examination of PW8 regarding the existence of any nail mark or linear abrasion present in the neck of the victim. From the nail clippings collected from the accused, no tissue or blood stain were detected. On the other hand, only the dirt was detected. If it is a mere abrasion without having nail marks, there would be other possibilities for causing the above said injuries rather than by the application of hand, especially the range and measurement of the injuries (contusion) comes to (1) 10x9.5 cm, (2) 5x2x1cm, (3) 7x2x1.5cm, (4) 6x1.5x1.5cm, (5) 2x1x0.5cm, Crl.Appeal No.795 of 2013 23 (6) 1.5x0.5cm, (7) 1x0.5cm. We are not in a position to rule out the possibility of causing the above said contusions by a hit with a stone pelted against the victim. Further, the ante-mortem injuries 5 to 7 are on the left side of her neck. There is no injury or abrasion on the right side of her neck. This would be an indication that she had suffered neck injury on her left side alone. No investigation was conducted to ascertain whether these injuries could be possible by a hit with a stone on her left neck. 17. After the examination of PW1, the learned Public Prosecutor applied for further investigation under Section 173(8) Cr.P.C. by filing an application in Crl.M.P. 704/2009 and, in furtherance of the said application, Exhibit P16 supplementary report was submitted by the then Circle Inspector of Police, Vellarada, who was examined as PW20. It is so unfortunate that a supplementary report under Section 173(8) had seen submitted by PW20 without annexing any additional statement under Section 161 or Section 164 Cr.P.C. or collecting any further evidence. While in the box he had admitted that if any contra report was filed under Section 173(8), it would result in Crl.Appeal No.795 of 2013 24 disciplinary proceedings against the officer who laid final report before court under Section 173(2) Cr.P.C. Exhibit P16 cannot be brought either under Section 173(2) or 173(8) as it does not qualify a report as mandated under Section 173(8) Cr.P.C. 18. Ante-mortem injury Nos. 5, 6 and 7 are the injuries sustained to the neck of the victim and the cause of death is stated to be due to blunt injuries sustained on the neck of the victim. The opinion given by the Doctor, who conducted postmortem examination on the body of the deceased, is that the death was due to blunt injuries sustained to the neck. The oral testimony of PW5 did not disclose anything with respect to the injury caused to the neck of the victim, his mother. The involvement of accused, as spoken by PW5, is that the accused caught hold on the hair of victim and inflicted an injury to her head by using a knife, then ran away from the place. The version given by PW5, the occurrence witness, will not reveal how injury Nos.5, 6 and 7 caused to the victim, which are the real cause for the death. It is so unfortunate that the above said vital factor was omitted by the learned Sessions Judge while entering into a Crl.Appeal No.795 of 2013 25 finding against the accused for the offence of murder. 19. The theory of “last seen together” was wrongly applied by the learned Sessions Judge without satisfying its requirements. It can be applied when the deceased found in the company of accused just before the commission of offence. Here, admittedly the accused and the deceased were found in the company of PW1 and the incident happened at the courtyard of the victim. Some head load workers were present, who were watching the alleged quarrel. So, the theory of “last seen together” cannot be applied in the instant case. 20. The learned Sessions Judge also relied on the recovery of MO1 knife in furtherance of the alleged disclosure statement given by the accused while he is in police custody. The recovery under Section 27 of the Evidence Act or the fact detected or revealed should be an incriminating fact having some nexus with the alleged offence, like presence of blood or tissue on the weapon used or the like. Unless it is satisfied that there is an incriminating factor attached to the object, it cannot be brought under Section 27 of the Evidence Act. Mere recovery of a knife as Crl.Appeal No.795 of 2013 26 that of the accused alone is not sufficient to bring the discovery under the sweep of Section 27 of the Evidence Act. There should be some nexus between the fact discovered and the commission of offence. Though blood was detected in MO1 knife, it was insufficient for determining the origin and hence it has no relevance and cannot be brought under Section 27 of the Evidence Act. The nail clippings collected is also of no use as no fibers similar to item Nos.5, 6A, 6B could be detected on ten numbers of nail clippings of right hand and seven numbers of nail clippings of left hand collected from the accused on forensic science examination (Exhibit P15). On the other hand, dirt alone was detected in both the set of nail clippings taken from the accused which would take the very basis of the case advanced by the prosecution. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused that the circumstances taken cumulatively should form a Crl.Appeal No.795 of 2013 27 chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistency with his innocence. [see Trimukh Maroti Kirkan v. State of Maharashtra reported in 2006 KHC 1469 = 2006 (4) KLT 638 = 2006 (10) SCC 681]. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. [See Stirlahd v. Director of Public Prosecution (1944 AC 315) quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh 2003 (11) SCC 271]. 21. In short, there is no satisfactory evidence to bring home the guilt of accused in the alleged commission of offence resulting into the death of the victim. Further, the oral evidence tendered by PW5, minor son, cannot be relied on especially when there is no other satisfactory evidence giving corroboration to the version of PW5 which is found to be highly tutored and tainted. Crl.Appeal No.795 of 2013 28 Hence, we are of the considered view that no offence has been proved against the accused and hence the accused is entitled to an acquittal for all the charges leveled against him and we do so by allowing this appeal. The finding of guilt of accused under Sections 302 and 341 IPC and the conviction and sentence are hereby set aside. In the result, the appeal is allowed. Finding of guilt of accused under Sections 302 and 341 IPC and the conviction and sentence passed thereunder are hereby set aside. The appellant/accused is found not guilty of any offence and hence acquitted and set at liberty. He shall be released forthwith, if his presence is not necessary in connection with any other case. Registry shall intimate the operative portion of the judgment to the concerned jail authorities forthwith. ## **A.M.SHAFFIQUE (JUDGE)** ## **P. SOMARAJAN (JUDGE)** DMR/-