Selvan @ Siva S/o Murugan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA, 1943 CRL.A NO. 765 OF 2021** **AGAINST THE JUDGMENT IN SC 102/2013 OF ADDITIONAL SESSIONS COURT - VII, ERNAKULAM** **(CP No.90/2012 of JFCM COURT I, PERUMBAVOOR IN CRIME NO.1120/12 OF KURUPPUMPADY POLICE STATION)** ## **APPELLANT:** **SELVAN @ SIVA S/O MURUGAN, PERIYAR NAGAR HOUSE NO.1,KOLLATHUPANNAI HOUSE, ERODE TALUK, ERODE DISTRICT, TAMIL NADU STATE. NOW AT CENTRAL PRISON, VIYYUR, THRISSUR-680010. BY ADVS. K.P.PRADEEP T.THASMI** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, OFFICE OF THE ADVOCATE GENERAL HIGH COURT, KOCHI-682031.** ## **OTHER PRESENT:** ## **SRI.V.S.SREEJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **- 2 -** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------Crl.Appeal No.765 of 2021 --------------------------------------------Dated this the 10[th] November, 2021** ## **JUDGMENT** ## **Vinod Chandran, J.** **The 4[th] accused has filed the above appeal against the conviction and sentence entered into by the Trial Court. The accused Nos.1 to 4 were alleged to have criminally conspired and with the intention of robbing a motor car, murdered the driver and also caused disappearance of evidence by setting him ablaze, in furtherance of their common intention, is the prosecution case. A1 to A4 were found guilty of having committed offences punishable under Ss.302, 394, 201 and 120B read with 34 of the Indian Penal Code and A5 under section 201 IPC. A2 died when the appeal was pending and A3 was a juvenile. A1 & A5 were acquitted by this Court by judgment dated 17.09.2021 in Crl.Appeal Nos.848 & 1207 of 2016. The appellant herein had not filed an appeal along with the other appeals. While passing judgment in the** **- 3 -** **other appeals, the Division Bench directed legal assistance to be extended to the appellant, if he so desires. The appeal has been filed with such legal assistance.** **2. We heard learned Counsel Dr.K.P.Pradeep and the learned Public Prosecutor, respectively for the appellant and the State.** **3. We see from the judgment passed in the appeal of the co-accused that the Division bench found absolute lack of evidence to connect the accused with the crime and also the recoveries having failed to impress, for reason of the prosecution having not brought out the evidence in the proper manner. The prosecution case is that A1 hired the taxi car to go to Poopara and on the way A2 to A4, with prior concert, joined him, in the car. On the return journey, in the early morning, when the car was stopped for the passengers to alight; the driver stepped out and opened the right door of the back seat. A3 is then said to have inflicted a wound on the back side of the driver's head, while A2 hit him with an iron** **- 4 -** **lever on the face. A1, then caught hold of the hands of the victim to facilitate strangulation with a clutch cable; carried out by A4. The supine body was laid on the road margin, covered with a towel, petrol poured over it and set ablaze with a cigarette lighter. The body was detected on the same day after sunrise and the investigation conducted.** **4. The only circumstance proved is that A1 hired the car from the taxi stand, at Perumbavoor, to go to Pooppara. The destination was revealed by PW3, another taxi driver of the same stand, who was first approached by A1; who could not take the trip since he was hired by another by the time A1 returned. The recoveries made under S.27, on the confession statements made by A1 was either inconsequential or disbelieved. The stolen car itself is said to have been recovered on the confession statement of A1. However, the Investigating Officer [for brevity, 'I.O'] did not speak of the precise statement in his evidence, thus seriously putting to peril the connection of A1, with the recovery of the car. Reliance** **- 5 -** **was placed on** _**Mohd. Abdul Hafeez v. State of AP [ AIR 1983 SC 367]**_ **.** **5. The car was not proved as the one owned by the deceased and his wife. There was no attempt by the I.O to identify the car as that run by the deceased as a taxi from the Registration Certificates and the insurance particulars, which are said to have been recovered, again at the behest of A2. The carrier of the car was said to have been recovered on the confession statement of A1, which statement was found to have; not spoken of any concealment. The statement recorded was only of the car having been given for repairs in a workshop. It was from the said workshop the carrier is recovered. A1 did not speak of the carrier at all, to the I.O. The witnesses to the recovery, PW13 to PW15 denied such recovery having been made in their presence. A5 was roped in for having abetted the other accused to change the registration number of the car as displayed in the number plate. The witnesses proffered against A5 turned hostile, thus putting to peril the evidence against A5 also.** **- 6 -** **6. We cannot but notice that the case is built on circumstantial evidence and there is no eye-witness. It is difficult to comprehend the charge having been framed in such a manner with overt acts pinned on the various accused. Be that as it may, the only evidence against A5 is that a clutch cable was recovered on his confession statement under S.27. The learned Public Prosecutor specifically points out that the injury No.5 in the postmortem examination report at Ext.P21 can be caused by the use of MO6, as spoken of by the expert witness PW23, the Doctor who conducted postmortem examination. PW7 is petrol pump employee, who identified A4, as having purchased 2 litres of petrol from Poopara in a bottle at 8 p.m. on 15.08.2012 and PW16 is the witness to the recovery of the clutch cable.** **7. As pointed out by the Learned Public Prosecutor, there is an injury which could have been caused by MO6 clutch cable. But, there is nothing to prove that the injury on the deceased was caused by MO6 itself; ie, no scientific evidence is forthcoming. PW16** **- 7 -** **is the mahazar witness to the recovery of the clutch cable. At the outset, it is to be noticed that the I.OPW36 does not speak of the exact words spoken by the accused. He only speaks of A3 having agreed to point out the place where the cable was thrown. The statement as per the seizure mahazar Ext.P15 was not marked and the same is not in consonance with the deposition of the I.O. Further, PW16, the witness speaks of the accused having pointed out to the Police the cable used to strangulate the deceased and the cable having been recovered by the Police. There is no evidence as to concealment and actual recovery effected by the accused himself. He also does not identify A4 and merely states that he saw A4 on 05.11.2012, the date of recovery. There is no identification of A2 from the dock.** **8. The further evidence against A4 is the alleged purchase of petrol in two bottles of one liter each. The purchase is made from Poopara which is the destination spoken of by the witnesses who identified A1 having hired the taxi car of the deceased. There is no** **- 8 -** **connection shown between A1 and A5 but for a bland allegation of conspiracy. The body was recovered on the next day morning at Thykarachira, Kottappuram nearer to the place from which the taxi car was first hired. There is no evidence as to the distance between Poopara and Thykarachira. Even if PW7 is believed, there is nothing to establish that the petrol purchased by A4 was used to set ablaze the dead body. Further, PW7, before identification in Court was shown the accused twice at the Kuruppampadi Police Station, as clearly deposed by him.** **9. Just as in the case of the other accused, we find no reason to uphold the conviction of A4. There is absolutely no evidence of the accused having been together at the relevant time, much less of a criminal conspiracy. No circumstance exists or is established before Court, connecting the accused to the crime proper. The only circumstance proved is of A1 having hired the car of the deceased on the previous day, to go to Pooppara. The other accused were not even shown to have** **- 9 -** **any connection with A1. We cannot but set aside the conviction and the sentence passed against A4, also. We allow the appeal and acquit the appellant/4[th] accused. We have already communicated the gist of the judgment and directed his release if his continued detention is not required in any other case.** **Sd/K.VINOD CHANDRAN, Judge** **Sd/-** **C.JAYACHANDRAN, Judge** **Sp/jma/-**