State of Kerala v. Thampi s/o Kurian and Aravindakshan s/o Balakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE R.BASANT & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 2ND DAY OF APRIL 2012/13TH CHAITHRA 1934** **CRL.A.No. 256 of 2007 ----------------------SC.521/2004 of SPL.C IDAMALAYAR INVN & 5 ADDL.DC.EKM** **APPELLANT/COMPLAINANT:** **-------------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA (REPRESENTED BY CIRCLE INSPECTOR OF POLICE PUTHENCRUZ (CRIME N.6/2001 OF PUTHENCRUZ POLICE STATION).** ## **BY ADV.GIKKU JACOB GEORGE, PUBLIC PROSECUTOR** ## **RESPONDENTS/ACCUSED::** **-----------------------** **1. THAMPI S/O. KURIAN, MEMANA VEEDU, MURIYAMANGALAM KARA, THIRUVANIYOOR KUNNATHUNADU TALUK.** **2. ARAVINDAKSHAN, S/O. BALAKRISHNAN, VADAKKUMKARA PARAMBIL, THIRUVANIYOOR KUNNATHUNADU TALUK.** **BY ADV. SRI.JOHN K.GEORGE BY ADV. SRI.K.S.ARUN KUMAR BY ADV. SRI.E.C.BINEESH BY ADV. SRI.PEEYUS A.KOTTAM BY ADV. SRI.JEFF JOSEPH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2012, THE COURT ON 02-04-2012 DELIVERED THE FOLLOWING:** **jma** **R. BASANT & K. VINOD CHANDRAN, JJ ---------------------------------------------------Crl.Appeal No.256 of 2007 ---------------------------------------------------Dated this the 2[nd] day of April, 2012** ## **J U D G M E N T** ## Vinod Chandran, J A History-sheeter erased from the records of the police as also the face of the earth in a homicide. The accused herein were arraigned as accused 1 and 2 before the Sessions Court on charges of having caused the death of one Eli Mani @ Vijayan. The charge was that after rendering him unconscious by intoxication Accused 1 and 2 delivered 4 to 5 blows on him, with the blunt portion of MO5 weapon (വ�കത�), in furtherance of their common intention to cause his death and then caused disappearance of evidence by removing the blood stains and throwing away the weapon used for the commission of the crime. The accused were charged under Sections 302 and 201 read with Section 34 of Indian Penal Code. On committal made by the Judicial First Class Magistrate, Kolencherry, the accused stood trial before the 5[th] Additional Sessions Court, Ernakulam, which court after considering the entire evidence, acquitted the first Crl.Appeal No.256 of 2007 : 2 : accused, affording him the benefit of reasonable doubt and the second accused for a complete lack of acceptable evidence against him. The State is in appeal before us, challenging that the appreciation of evidence by the trial court was perverse and that the Sessions Court has not considered the convincing evidence corroborated by the material circumstances. The trial court has detailed the facts leading to the charge and has considered the circumstances relied on by the prosecution; and we do not deem it necessary to repeat it in appeal. 2. The investigation was set in motion with the discovery of an unidentified body lying in a canal by name Kumbalappilly, near Kattachira Bund at Kokkappillikkara. The First Information Report was registered on the information supplied by PW1, an Advocate and the ward member of the Panchayat. In the morning of 7.1.2001 PW1 was informed of a person having been found lying dead in the canal, coming within the panchayat ward of which he is a member. PW1 having proceeded to the site, confirmed the fact and immediately gave First Information Statement before the Sub Inspector of Police, Puthencruz, PW15. On the basis of Ext.P1 FI statement, Ext.P1 Crl.Appeal No.256 of 2007 : 3 : (a) FIR was registered by PW15 as suspicious death, since at that point of time the cause of death and the identity of the person were not clear. PW15 immediately proceeded to the site and conducted inquest of the body and prepared Ext.P2 inquest report. The body was found in the canal near an unnumbered concrete store room situated in the bank of the canal; used for storing the planks of the check-dam in the canal. Body was found immersed in water; in the canal. On taking out the body; as per the identification made by the local people, it was identified as that of Vijayan @ Eli Mani S/o. Mathai aged around 40 years. The body on examination was found to contain three open wounds on the head and two open wounds on the face. A sword which was lying inside the water adjacent to the dead body was also recovered as per the inquest report. This sword was subsequently revealed to be that of the deceased and is not the weapon which caused the injuries. 3. The investigation was taken over by the Circle Inspector of Police, PW16 and Ext.P15 report dated 8.1.2001 was filed seeking deletion of the caption “suspicious death” and addition of Section 302 IPC in Ext.P1(a) FIR. The appellants Crl.Appeal No.256 of 2007 : 4 : were arrested on 7.2.2001 and Ext.P18 report was filed before the JFCM Court seeking arraignment of the appellants as accused in Crime No.6 of 2001 under Sections 302 and 201 read with Section 34 IPC. The Court then framed charges on the basis of final report and conducted trial in which 16 witnesses were examined for the prosecution and Ext.P1 to P24 were proved as exhibits; and MOs 1 to 15 were marked as material objects, for the prosecution. The appellants entered a defence of total denial and marked Exts.D1 to D3 case diary contradictions and two documents as D4 and D5. The prosecution case as projected in trial was that the first accused due to previous animosity towards the deceased, along with the second accused, a friend, committed the murder of the deceased in furtherance of their common intention and threw his body into the canal and attempted to efface evidence by washing away the blood stains in the concrete store room and by throwing away the weapon used for commission of the offence. 4. We have been taken through the evidence recorded in the case extensively by the learned Public Prosecutor. On Crl.Appeal No.256 of 2007 : 5 : behalf of the State it is contended that the circumstances revealed in the case are of such reliable and clinching nature and forms an unbroken chain permitting no other conclusion than the guilt of the accused. The counsel appearing for the respondents however would point out that there is absolutely no circumstance incriminating the accused and the presumption of innocence of the accused having been further fortified by the acquittal ordered by the Sessions Judge, it is submitted that the mere existence of a plausible alternative conclusion cannot lead to the reversal of the order of acquittal. The counsel for the respondent/accused exhort a cautious approach in considering the appeal of the State; on the strength of precedents. 5. The counsel for the respondents would buttress his plea for a cautious approach with precedents. We are conscious that though the power conferred on this Court in dealing with an appeal against an order of acquittal is as wide as the power conferred in dealing with an appeal against the order of conviction; in dealing with the appeals against acquittal, this court has to necessarily and essentially bear in Crl.Appeal No.256 of 2007 : 6 : mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed by the trial court. The entitlement of the accused to the benefit of a reasonable doubt is paramount in such cases and the courts are slow in disturbing the findings of fact recorded by the trial court. Hence what governs the appellate court while considering the appeal against the acquittal is the overriding consideration flowing from the presumption of innocence further strengthened by the acquittal ordered by the trial court. However, it has also been laid down that the approach of the High Court even if circumspect and cautious, in dealing with the appeals against acquittals, it can and is entitled to reach its own conclusion upon the evidence adduced by the prosecution in respect of the guilt or innocence of the accused.( **AIR1963** **SC 200 M.G Agarwal and another v. State of Maharashtra** ). The said principle has been reiterated in **Bhaiyamiyan v. State of Madhya Pradesh(2011(6) SCC 394).** At the very outset we must remark that Crl.Appeal No.256 of 2007 : 7 : the High Court's interference in an appeal against acquittal is somewhat circumscribed and if the view taken by the trial court was possible on the evidence, the High Court should stay its hands and not interfere in the matter in the belief that if it had been the trial court, it might have taken a different view. In other words, if two views are possible and the trial court has taken one, the High Court should not interfere in the judgment of the trial court. We consider the instant case with the above principles in mind and exercising restrain, imposed by binding precedents, not to take upon the mantle of the trial court. 6. We do not intend to re-narrate the evidence which has been elaborately considered by the Sessions Court. However, a reiteration of the circumstances considered by the Sessions Court is made at the appropriate places in the course of this judgment. After trial, the Sessions Court considered the Crl.Appeal No.256 of 2007 : 8 : following circumstances being (i) the cause of death, (ii) the motive, (iii) the last seen together theory and (iv) recovery under Section 27 of the Evidence Act; to consider whether such circumstances are sufficient to enter a finding of guilt against the accused for commission of the murder of the deceased and that of causing disappearance of evidence. 7. The Sessions Court having found the cause of death to be homicide, held that the only circumstance regarding the complicity of the first accused was the recovery of MO5 weapon and holding the same to be insufficient to enter a clear and definite finding of guilt against A1; acquitted him by granting him the benefit of doubt. As regards the second accused the learned Sessions Court found that there is no practically reliable and acceptable evidence against the second accused and acquitted him of the charges. 8. The motive projected by the prosecution was the previous animosity of the first accused towards the deceased. From a reading of the case diary contradictions, (Ext.P5 with reference to PW7), it is revealed that the alleged motive was the fact that the first accused had stolen the duck of the Crl.Appeal No.256 of 2007 : 9 : deceased three to four years back. In retaliation the deceased had destroyed the crops in the property of A1 and also stolen ripe and tender coconuts from the property of the first accused. PW7 however, turned hostile to the prosecution and denied having made any such statement before the police. Strangely and surprisingly one other witness arrayed by the prosecution to speak about the motive was the wife of the first accused. Quite expectedly she also turned hostile in court. It is pertinent that the only substantive evidence regarding motive is that of the brother of the deceased who was examined as PW5. 9. PW5, in fact, was not an informant nor an eye witness and was examined only for the purpose of proving the motive. PW5 speaks of the animosity harbored by the first accused and the deceased against each other. PW5 also identified MO1 sword, MO4 torch and MO6 fishing hook as items belonging to the deceased. He also identified MO5 weapon which according to him was taken out of the water by PW4. The recovery of MO4 torch and MO5 weapon from underwater was spoken of by PW5 as a witness to such recovery. In cross examination with reference to the motive, it was admitted by Crl.Appeal No.256 of 2007 : 10 : PW5 that in the original statement given to the police he had not spoken of the said motive nor had he raised any suspicion against the first accused as having been involved in the death of his brother. The motive behind the crime as also the suspicion against A1 was revealed by PW5 to the police only on 7.2.2001, being the date on which the accused were arrested. The statement that he had witnessed the recovery of MO5 weapon and MO4 torch was also contradictory to his earlier statement before the police, immediately after the crime was detected. While identifying MO4 and MO5 before the police it was stated that he had heard about such recovery quite contrary to his assertion in court that he had witnessed the recovery. In examining the veracity of PW5's testimony, it is pertinent that in cross examination though he admits that himself and his deceased brother were staying in the same house he specifically states that his brother had never remained away from home and that he is not aware of any sentence of imprisonment undergone by his brother. The defence as is found in Ext.D4 and D5 proved beyond doubt that the deceased was a history-sheeter and had been convicted in Crl.Appeal No.256 of 2007 : 11 : not less than 12 cases in which he had undergone imprisonment for various periods in 8 cases. The fact that the deceased was a history sheeter does not at all reduce the rigor or seriousness of the crime committed on him. However, the total ignorance of the antecedents of his brother pleaded by PW5 makes the witness highly suspect and unreliable. 10. Further PW5 himself admits that there was some animosity between himself and the first accused. The “interest” of the witness is very evident from the embellishment made in court that he had witnessed the recovery of MO5 weapon and MO4 torch from underwater. The fact that PW5 raised a finger of suspicion against the first accused only after the arrest of the accused on 7.2.2001 is another compelling circumstance to view his testimony with suspicion and doubt. PW5's testimony according to us is wholly unreliable and is hence liable to be rejected. The rejection of PW5's testimony would cut at the root of the theory of motive advanced by the prosecution. However, we remind ourselves, that motive is not a necessary ingredient for arriving at a finding of guilt if other circumstances are compelling enough Crl.Appeal No.256 of 2007 : 12 : and are of a conclusive and unerring nature and is in exclusion to any hypothesis of innocence; to reach at the conclusion of guilt. 11. There cannot be any dispute that the death of the deceased was a homicide and was a direct consequence of the injuries mentioned in the inquest report(Ext.P2) and detailed in Ext.P13 postmortem certificate. PW12 Doctor who was examined to mark the postmortem certificate also confirms that the injuries caused are quite possible with a weapon like MO1. However, it is to be noticed that in chief examination, when the Doctor was queried as to whether all or any of the injuries maybe caused by the blunt portion of MO5, the answer was in the negative. This assumes some significance because the charge against A1 and A2, framed by the Court on the basis of the final report is that the death of the deceased was caused by blows with the blunt portion of the weapon. Be that as it may, there can be no doubt that the death of the deceased was a homicide. 12. Having found the death to be a homicide and also having found the motive to be not an essential ingredient, what Crl.Appeal No.256 of 2007 : 13 : remains to be considered are the circumstances that would bring the complicity of the crime to the accused and establish their guilt convincingly and unerringly. The circumstance of the theory of “last seen together” and the recovery of the weapon from under water are the circumstances relied on by the prosecution to bring home the guilt of the accused. 13. The “last seen together” theory is advanced on the strength of statement recorded under section 161 of PW8 and PW 10. While PW8 turned hostile before the Court PW10 was loyal to the prosecution. We shall first consider the evidence of PW10, since he has deposed consistent with the statement before the police and he is the witness who is alleged to have seen the accused at the earlier point of time. PW10's statement again was taken on 7.2.2001, the date of arrest, by the police as admitted by him in chief examination. PW10 is a person who conducts night teashop between 9 p,m. and 7.30 a.m, near Chottanikkara Temple. The evidence of PW10 is only to the effect that on the night of the death of the deceased he had seen both the accused at night, coming from the west and then proceeding to North in a scooter. We are unable to understand Crl.Appeal No.256 of 2007 : 14 : how this could advance the “last seen together” theory. PW10 does not speak of the presence of the deceased with the accused. Obviously both the accused are of the same locality and are familiar to PW10. How PW10 could recall having seen these two accused specifically on the night of the death; after about 2, 3 weeks is itself suspicious. Even if it is believed, it does not at all become a circumstance incriminating the accused; for the presence of the deceased along with them is not at all evident from the testimony of PW10. 14. Then we have the evidence of PW8. Going by the contradictions in 161 statement (Ext.P6 to P10) PW8 had seen the deceased along with the accused 1 and 2 sitting on the cement floor outside the concrete shed on the bank of the canal on the previous night at 10.45 p.m. To the police he also stated that they were drinking liquor with tender coconut water and that on his return after a wash in the canal he was also offered a drink by them which he declined. But all the same on turning the torch light towards them he saw the deceased lying on the floor; obviously and blissfully inebriated. PW8 chose to turn hostile before Court. Though he admits to having gone to the Crl.Appeal No.256 of 2007 : 15 : canal for a wash and having seen some people sitting on the concrete floor of the shed, he feigned ignorance as to the identity of such persons. He specifically denied that he saw the deceased and the accused at the spot. The volte-face made by PW8 definitely knocks the bottom out of the theory of “last seen together”. The theory that the deceased was last seen together with the accused falls flat and does not in any manner incriminate the accused. 15. The remaining circumstance projected by the prosecution is the recovery made under section 27 of the Evidence Act. There are a host of witnesses for the recoveries effected by the prosecution. Ext.P12 is the recovery mahazar of MO5 weapon purportedly made on the confession Ext.P12(a) of A1. Ext.P19 is the recovery mahazar of the bottle, glass and torch(MO4) made in consequence of Ext.P19(a) confession of A2. Ext.P20 is the recovery mahazar of coconut husks(MO10) on the confession Ext. P20(a) of A1. Recovery of MO11(ക�ല�) and ashes of burnt shirt(MO12) were respectively made as Exts.P21 and P22 mahazar. Exts.P21 and P22 mahazars though extracted the confession statements, such statements were not Crl.Appeal No.256 of 2007 : 16 : marked in Court. In any event Ext.P24 chemical analysis report did not show any blood on the said recovered items and hence it does not lead to an incriminating circumstance. However, we shall refer to the said seizure mahazars later, since the same may be relevant in considering the veracity of the recovery as such. Ext.P12 and P19 as noticed earlier were recovery mahazars respectively with reference to MO5 weapon and MO4 torch. Ext.P12 speaks of the recovery being made at 3.30 p.m on 7.2.2001 and Ext.P19 at 4.30 p.m on the same day. Both the said recoveries were made from the canal with the help of the local people who dived underwater and recovered the material objects. MO4 torch was recovered by PW3 as is spoken to by him at around 10'o clock in the morning of 7.2.2001. MO5 weapon was recovered from underwater by PW4 who also specifies the time of the recovery between 10 and 10.30 A.M on the morning of 7.2.2001. The recovery mahazar also obviously indicate the presence of the respective accused at the time of recovery. PW8, witness to Ext.P12 mahazar was examined to mark the same. PW 11 also speaks of the recovery being effected at around 10'o clock in the morning of 7.2.2001. In Crl.Appeal No.256 of 2007 : 17 : cross examination he specifically stated that he had seen the recovery of both the weapon and torch and also the preparation of the mahazar by the police officer as dictated by the Circle Inspector of Police. His specific case is that after putting his signature on the mahazar he had returned by 1.30 to 2 P.M in the afternoon. This would definitely be contradictory to the time mentioned in Ext.P12 and P19. In considering the circumstance of recoveries made under Section 27, on 7.2.2001 and 8.2.2001, our curiosity was aroused due to the inconsistency in the time as spoken to by the witnesses and that indicated in the mahazars. Hence we delved into the records to better understand the circumstance of arrest of both the accused. We were surprised to find that the arrest was recorded at 1 P.M on 7.2.2001. On going through the Remand Report dated 8.2.2001 we could decipher from the statement of the case that both the accused were called to the Police Station at 12.00 noon and arrested at 1.00 p.m on 7.2.2001 This exposes the blatant falsehood of the recoveries said to have been made at 10A.M on 7.2.2001. 16. The accused were arrested on 7.2.2001 at 1 P.M and Crl.Appeal No.256 of 2007 : 18 : allegedly after effecting recoveries as per Ext.P12, P19, P20, P21, and P22, remanded to judicial custody on 8.2.2001. In this context again it is interesting that Ext.P20, P21 and P22 recovery mahazars allegedly evidence the recovery of the items mentioned in the mahazar respectively at 8 A.M, 8.30 A.M and 10 A.M on 8.2.2001. The Remand Report is seen prepared at 9 A.M on 8.2.2001 and is silent about the recoveries made as per Exts.P20 to P22. The recoveries made according to us, in the circumstances explained above cannot at all be relied on. We have to specifically notice herein that while acquitting the accused the learned Sessions Judge had in fact, found the recovery as being a circumstance against the accused. But having found that to be the only circumstance, the learned Sessions Judge acquitted the accused. Even the said circumstance, according to us, cannot at all be termed to be one pointing at the complicity of the accused in the death of the deceased. 17. On an examination of the circumstances relied on by the prosecution we are of the opinion that there is not a single circumstance pointing to the involvement of the accused in the Crl.Appeal No.256 of 2007 : 19 : ## homicidal death of the deceased. 18. In these circumstances, we are unable to find one single compelling circumstance to interfere with the order of acquittal passed by the learned Sessions Judge and we confirm the same. The appeal of the State hence stands dismissed. Sd/- **(Judge)** **R. BASANT** Sd/- **K. VINOD CHANDRAN (Judge)** jma //true copy// P.A to Judge