Shyju S/o Sainudeen & Firoskhan S/o Moideen Sahib v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 14TH DAY OF DECEMBER 2018 / 23RD AGRAHAYANA,** ## **1940** **CRL.A.No. 151 of 2014** **AGAINST THE JUDGMENT IN SC 526/2008 of I ADL.SESSIONS JUDGE I., THIRUVANANTHAPURAM DATED 30-01-2014** **CP 79/2007 of J.M.F.C.-I,VARKALA** **CRIME NO. 153/2002 OF VARKALA POLICE STATION) , (14/CR/TVPM/04 OF CBCID,THIRUVANANTHAPURAM** ## **APPELLANTS/ACCUSED NO.1 AND 3:** **1 SHYJU S/O.SAINUDEEN, KUZHAKKATTU HOUSE, MANTHARA, MANTHARA DESOM, EDAVA VILLAGE. 2 FIROSKHAN S/O.MOIDEEN SAHIB, KUZHAKKATTU HOUSE, MANTHARA, MANTHARA DESOM, EDAVA VILLAGE.** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.VIPIN NARAYAN** Crl.Appeal Nos.151 & 161/14 -:2:- ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SR. PUBLIC PROSECUTOR SRI. S.U NAZAR.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 4.12.2018, ALONG WITH CRL.A.161/2014, THE COURT ON 14.12.2018 DELIVERED THE FOLLOWING:** Crl.Appeal Nos.151 & 161/14 -:3:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 14TH DAY OF DECEMBER 2018 / 23RD AGRAHAYANA, 1940** **CRL.A.No. 161 of 2014** **AGAINST THE JUDGMENT IN SC 526/2008 of I ADL.SESSIONS JUDGE I., THIRUVANANTHAPURAM DATED 30-01-2014** **CP 79/2007 of J.M.F.C.-I,VARKALA** **CRIME NO. 153/2002 OF VARKALA POLICE STATION), (14/CR/TVPM/04 OF CBCID,THIRUVANANTHAPURAM** ## **APPELLANTS/CCUSED 2 & 7:** - **1 NAZEER, AGED 46, S/O.ALI SAHIB, KUZHAKKATTU VEEDU, MANTHARA,MANTHARA DESOM, EDAVA VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **2 NOUSHAD AGED 39 YEARS S/O.SAINUDEEN, PUTHEN VEEDU, MANTHARA, MANTHARADESOM, EDAVA VILLAGE, THIRUVANANTHAPURAMDISTRICT.** **BY ADVS. SRI.M.RAJENDRAN NAIR SMT.M.SANTHY SRI.ABRAHAM P.GEORGE** Crl.Appeal Nos.151 & 161/14 -:4:- ## **RESPONDENT:** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** **BY SR. PUBLIC PROSECUTOR SRI. S.U. NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 4.12.2018, ALONG WITH CRL.APPEAL NO.151/14, THE COURT ON 14.12.2018 DELIVERED THE FOLLOWING:** Crl.Appeal Nos.151 & 161/14 -:5:- ## **J U D G M E N T** ## _**Shaffique, J.**_ These appeals have been preferred by the appellants, who are accused nos. 1 to 3 and 7, challenging the judgment passed by the 1[st] Additional Sessions Judge, Thiruvananthapuram in S.C. No. 526/2008 by which they were found guilty under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for brevity 'IPC') and also for offence under Section 27 of the Arms Act, 1959 read with Section 34 of IPC and all of them were sentenced to undergo imprisonment for life and a fine of `50,000/- each with a default stipulation of rigorous imprisonment for one year, for offence under Section 302 read with Section 34 of IPC and further sentenced to undergo rigorous imprisonment for three years and a fine of `s.5,000/- each in default of which to suffer rigorous imprisonment for six months each for offence punishable under Section 27 of Arms Act, 1959 read with Section 34 of IPC. Accused nos. 4, 5 and 6 were acquitted. 2. Prosecution case in brief, is that, on 25/03/2002, at about 08.30 p.m., accused nos. 1 to 7 due to their previous Crl.Appeal Nos.151 & 161/14 -:6:- enmity towards the deceased Sulfickar, formed into an unlawful assembly with a common object to attack the deceased and in furtherance of the same, attacked Sulfickar at Manthara beach using deadly weapons like sword, metal block and cudgel, resulting in fatal injuries. Though the injured was rushed to the Medical College Hospital, Thiruvananthapuram, subsequently he succumbed to the injuries at 1.20 a.m., on 26/03/2002. 3. To prove their case, prosecution examined witnesses PWs 1 to 34, produced and marked Exts.P1 to P36 documents and identified MOs 1 to 13. 4. Learned Senior Counsel Sri. P.Vijaya Bhanu appeared for and on behalf of accused nos. 1 and 3 and learned counsel Sri.M.Rajendran Nair made appearance for accused nos. 2 and 7. They contended that there is absolutely no evidence against the appellants and the Court below thoroughly erred in arriving at the present conclusion and in passing the impugned judgment. All alleged eyewitnesses turned hostile to the prosecution. There is no legal evidence in the case. Materials relied on by the trial Court can never be relied on in a criminal trial to convict a person. Alleged recovery is not proved. Prosecution miserably Crl.Appeal Nos.151 & 161/14 -:7:- failed to prove the case beyond doubt. Nothing is brought to show any involvement of the appellant. The appellants are already on bail as their sentence is suspended by this Court. They vehemently argued for an acquittal. 5. Learned Public Prosecutor, on the other hand, argued that though the eye-witnesses turned hostile to the prosecution, other available evidence are sufficient to prove the guilt of the appellants herein. Medical evidence shows that altogether 52 ante-mortem injuries were noted on the body of the deceased. Weapons were recovered at the instance of the appellants. Medical, recovery and forensic evidence would clearly prove the involvement of the appellant in the crime and the Court below is justified in arriving at the finding under challenge. He pleaded to dismiss the appeals. 6. The appellants were punished as stated above. A4 to A6 were acquitted. The question to be looked into is whether the trial Court was justified in convicting the appellants in the light of available evidence. 7. Coming to the evidence of PW20 Dr.Rema, Associate Professor of Forensic Medicine, Medical College Hospital, Crl.Appeal Nos.151 & 161/14 -:8:- Thiruvananthapuram who conducted the post-mortem examination of the deceased, 52 ante-mortem injuries were noted on the corpse of the deceased. According to PW20, the death is caused due to head injury. Evidence of PW20 read with Ext.P18 certificate and Ext.P5 inquest report proved through PW6 would clearly show that the death of Sulfickar was a homicide. 8. Prosecution cited CW1, CW2, PW4 and PW5 as eyewitnesses to the incident. But it can be seen that prosecution could not bring CW1 and CW2 before the Court to depose as they were no more at the time of commencement of the trial. PW4 and PW5 were examined, but they did not support the prosecution case. They turned hostile to the prosecution. Hence obviously, prosecution failed to bring in evidence from the occurrence witnesses regarding the alleged incident. 9. The only thing to be looked into is whether in the absence of direct evidence, the prosecution could prove the guilt of the appellants beyond reasonable doubt by adducing other evidence. For the same, it is useful to have a brief look at the evidence on record. 10. PW1 is the son of the deceased. He has only hearsay Crl.Appeal Nos.151 & 161/14 -:9:- information about the incident from CW1 who was an eye-witness to the incident. PW2 is the wife of the deceased. She also has no direct knowledge about the incident. She identified the signature in FIS as that of CW1 and Ext.P1 FIS which was given by CW1 is marked through her. As already stated, PWs 3 to 5 were cited as occurrence witness, but they turned hostile to the prosecution. PW6 is an attestor to Ext.P5 inquest report. PW7 is the then Casualty Medical Officer, Mangala Medical Centre, Varkala. He proved Ext.P6 patient record of A3. He deposed that he could not identify A3. PWs 8 and 9 are attestors to Ext.P7 scene mahazar. 11. PW10 is cited as an attestor to Ext.P8 recovery mahazar of sword allegedly used by A2 based on his disclosure statement Ext.P8(a), on 30/03/2003. But it can be seen that, apart from admitting the signature, nothing is deposed by the witness as to whether the appellant was present there, how the weapon was recovered etc. 12. PW11 is an attestor to Ext.P9 recovery mahazar of kuruvadi which was recovered at the instance of A5 on 30/03/02. Here also the witness admitted the signature but does not depose the material details of the alleged recovery. Crl.Appeal Nos.151 & 161/14 -:10:- 13. PW12 is an attestor to Ext.P10 mahazar for the seizure of MO1 shirt and MO2 lunki of CW1 who was also an injured in the incident. He also stated that he brought CW1 to police station from hospital to give FIS. 14. PW14 is an attestor to Ext.P12 seizure mahazar. He turned hostile to the prosecution. PW15 is an attestor to Ext.P13 mahazar dated 01/10/2003 for the mahazar prepared at the time of examining Ambadi house where the accused allegedly came after the incident. 15. PW16 is the Assistant Surgeon, Taluk Hospital, Varkala. He issued Ext.P14 wound certificate of CW1. 16. PW17 is the then Assistant Director, FSL, Trivandrum. He examined the top of rear veranda of Ashiyana house and also at the top of Ambadi house and issued Ext.P15 report. It can be seen that no blood was detected. 17. PW18 is the Village Officer who prepared Ext.P16 site plan. PW19 is an attestor to Ext.P17 mahazar prepared at the time of examining Ashiyana house. As already stated, PW20 conducted the post-mortem of the deceased and issued Ext.P18 post-mortem certificate. Crl.Appeal Nos.151 & 161/14 -:11:- 18. PW21 is the then Judicial First Class Magistrate-I, Attingal who recorded Ext.P19 Section 164 statement of CW1. 19. PW22 is the then Assistant Chemical Examiner, CEL, Trivandrum. Ext.P20 is the report issued by him. 20. PW23 is the S.I. of Police, Varkala at the relevant time. Based on Ext.P1 FIS given by CW1, he registered Ext.P1(a) FIR. He prepared Ext.P5 inquest report. He also seized MO3 lunki and MO4 underwear of the deceased. 21. To prove the motive for the crime, prosecution brought in evidence in the form of FIRs registered in various Police Stations in which both parties are involved. PW24 is the SHO, Kollam East Police Station. He identified A1 and submitted that Ext.P21 is the final report he filed in connection with Crime No. 828 of 2001 in which A1 was an accused. 22. PW25 is the Head Constable, Kollam East Police Station at the time at which Crime No. 828 of 2001 took place. Exts.P22 P22(a) are the FIS and FIR respectively of the said incident. 23. PW26 is the Head Constable at Varkala Police Station during the period in which Ext.P23 and Ext.P23(a) FIS and FIR respectively for Crime No. 495 of 2001 was registered. Also, Crl.Appeal Nos.151 & 161/14 -:12:- another crime is also brought on record through Ext.P24 and Ext.P24(b). These were produced with a view to show that there was enmity between the deceased and the appellants and that they had motive to commit the murder of the deceased. 24. PW27 is the C.I. of Police who conducted the major part of the investigation. PW28 is the S.I. of Police, Varkala. He effected the arrest of A7, seized MO5 kuruvadi on 14/03/2003 through Ext.P12 based on the disclosure statement Ext.P12(a) of A7. PW29 is the C.I. of Police, Varkala. He arrested A1 on 01/10/2003 and seized a sword by preparing Ext.P28 mahazar. PW30 is the then Dy.S.P., Crime Branch. Ext.P33 is the forwarding note for sending items to FSL for examination. PW31 is another Dy.S.P. Crime Branch who continued the investigation. He laid the charge-sheet of the case before Court. 25. PW32 is the then P.R.O. of Mangala Hospital, Varkala. He is examined to prove A3's patient record which was seized through Ext.P34 inventory. 26. PW33 is another C.I. of Police who arrested A4 on 27/05/2002. PW34 is the investigating officer who filed chargesheet detailed in Exts.P40 and P41 in which the parties were Crl.Appeal Nos.151 & 161/14 -:13:- allegedly involved. 27. Indeed the death of Sulfickar was a homicide. He died of injuries suffered by him, which numbers 52, as per postmortem report. But as already mentioned, eye-witnesses turned hostile to the prosecution. Ext.P19 is the Section 164 Cr.P.C statement of CW1. CW1 was no more at the time of trial. It can be seen that Ext.P19 is marked as a whole which is an illegality. Hence it cannot be relied upon. 28. S.164 (1) of Cr.P.C. reads as under:- ## _“_ _**164. Recording of confessions and statements.**_ _(1) Any Metropolitan Magistrate or Judicial Magistrate may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards before the commencement of the inquiry or trial:_ _Provided that any confession or statement made under this sub-section may also be recorded by audiovideo electronic means in the presence of the advocate of the person accused of an offence._ _Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force.”_ Crl.Appeal Nos.151 & 161/14 ## -:14:- 29. In _**Ram Kishan v. Harmith Kaur**_ [(1972) 3 SCC 280], the Apex Court held that a statement u/s 164 is not substantive evidence and it can be used only to corroborate or contradict the statement of the witness. The position of law had been reiterated by the Apex Court in _**George v. State of Kerala**_ [(1998) 4 SCC 605] that statement of witness recorded u/s 164 is not substantive evidence and it can be used only to corroborate or contradict the witness. Where a prosecution witness does not support his version, his statement earlier recorded u/s 164 would not be available to the prosecution for corroboration and conviction of the accused cannot be recorded on the basis of the said statement. In _**Ramcharan v. State of U.P**_ (AIR 1968 SC 1270) the Apex Court while approving the observations of the Nagpur High Court in _**Paramanand v. Emperor**_ (AIR 1940 Nag. 340) held that if a statement of a witness is previously recorded u/s 164, it leads to an inference that there was a time when the police thought that the witness may change. But if the witness sticks to the statement made by him throughout, the mere fact that a statement was previously recorded u/s 164 will not be sufficient to discard it. It seems that the very purpose of taking a Crl.Appeal Nos.151 & 161/14 -:15:- statement u/s 164 is being forgotten by the judicial officers by placing reliance upon the same. In this case, when the witness itself is not available for giving evidence, wholesale marking of the said statement and placing reliance upon the same is illegal. Exts.P40 and P41 would only show that there are criminal cases pending before Court awaiting trial in which some of the accused and the witnesses were involved. That apart, even motive is not brought properly in evidence. Alleged recoveries are also not free of shadows. Having gone through the evidence in its entirety, we don't find any legal evidence which unerringly proves the guilt of the appellants. No circumstance is brought out in evidence to show that the appellants are the assailants who caused the death of Sulfickar. 30. One of the circumstances relied upon by the Court below was regarding the abscondence of accused 1 and 3, which is treated as a conduct u/s 8 of the Evidence Act. Court below also formed an opinion that there was glaring discrepancy in the investigation, but the same cannot adversely affect the merit of the prosecution case with reference to accused 1 and 3. Another circumstance taken note of by the Court below was regarding Crl.Appeal Nos.151 & 161/14 -:16:- recovery of MO7 sword as per the statement of 2[nd] accused and MO5 cudgel as per the statement of 7[th] accused. Further reference is also made to the abscondence of the 7[th] accused. Reference is also made to another criminal case in which 2[nd] accused was supposed to be an aide of the 1[st] accused. It is taking into account the aforesaid factual situation, Court below had arrived at a conclusion that accused 1, 2, 3 and 7 have committed murder of the deceased. We have already considered the evidence of each of the witnesses. But we do not think that any of such circumstance had been proved. It is trite that abscondence by itself cannot imply that the said person had committed the crime. In a case which rests on evidence of eyewitnesses, unless the prosecution is able to establish their case based on the said testimony, it will be difficult for the Courts to arrive at a conclusion that the accused were involved in the crime. Of course, if there are circumstantial evidence to prove their involvement in the crime, the Court can rely upon such circumstances as well. But the circumstances that are proved should lead only to the hypothesis regarding commission of offence by the accused. In this case, other than the circumstance Crl.Appeal Nos.151 & 161/14 -:17:- of abscondence of a few accused and the alleged recovery, which itself is not proved in the proper perspective, there is no other circumstance to implicate the accused to the crime. 31. Hence, we are inclined to hold that the trial Court erred in appreciating the evidence brought on record. We extend benefit of doubt to the appellants and they are acquitted of all the charges levelled against them. In the result, the appeals are allowed. It is submitted that the accused are already on bail. The bail bond executed by them shall be cancelled. **Sd/A.M.SHAFFIQUE JUDGE Sd/A.M.BABU** Rp True copy **JUDGE** P.S. To Judge.