Stephen Thazheril Puthen Veedu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR & THE HONOURABLE MR.JUSTICE P.BHAVADASAN TUESDAY, THE 5TH DAY OF JUNE 2012/15TH JYAISHTA 1934 CRL.A.No. 937 of 2009 ( ) ------------------------SC.241/2008 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI APPELLANT(S)/ACCUSED: -------------------- STEPHEN THAZHERIL PUTHEN VEEDU,ERAMBALLUR THIRUVANANTHAPURAM. BY ADVS.SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP RESPONDENT(S): -------------- THE STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## M.SASIDHARAN NAMBIAR & P.BHAVADASAN, JJ. --------------------------------------------CRL.A.NO. 937 OF 2009 --------------------------------------------Dated 5[th] June, 2012 ## JUDGMENT ## `Sasidharan Nambiar,J.` Accused in S.C.241/2008 on the file of Additional Sessions Court, Fast Track Court No.III, Adhoc, Manjeri is the appellant. He was convicted and sentenced to imprisonment for life and fine of Rs.25,000/- and in default rigorous imprisonment for two years for the offence under Section 302 of Indian Penal Code. Appeal is filed challenging the conviction. 2. The prosecution case is that on the night of 23/1/2001 PW1 Anil Kumar, deceased Christepher and the appellant had gone to a bar at Kottakkal and consumed liquor and returned back to the quarters of PW1. As PW1 vomitted, he slept. Appellant and the deceased were there at that time. When on the early CRA 937/09 2 morning of 24/1/2001 PW1 woke up, he did not find the deceased or the appellant. As usual, he opened the workshop by 5.30 a.m. It is near to his quarters. In the light of match stick which he lighted, he found the body of the deceased Christopher inside the shed with the injuries on his face and neck. PW1 took the autorickshaw and reached the residence of PW3, his cousin brother where appellant is employed, and informed him the incident. PW1 later went to Thirurangadi police station and furnished Ext.P1 FI statement which was recorded by PW10, the Sub Inspector of Police at 8 a.m. He prepared Ext.P16 FIR and registered Crime No.53/2001 of Thirurangadi Police station. PW13, Circle Inspector of Police, Thirurangadi took over the investigation. He prepared Ext.P2 inquest report and with the assistance of PW6 CRA 937/09 3 Scientific Assistant, DCRB, Malappuram collected the hairs found on the blood stained spade and seized MO.4 spade, Mos.6 to 8 lunkies found in the room, MO.9 cigarette packet, MO.10 cigar lighter and MO.11 series of cash. The deadbody was sent for postmortem examination. PW5 Assistant Professor, Forensic Medicine, Medical College, Kozhikode conducted postmortem examination and prepared Ext.P11 postmortem certificate. PW13 arrested the appellant and recovered Mos.1 and 2, the dresses of the appellant from the workshop of PW3 when appellant used to keep his articles on the information furnished by him. MO.3 cover and the hairs and blood stains collected by PW6 were produced in court and sent to Forensic Science Laboratory and obtained Exts.P17 to P19 reports. After completing the investigation, PW12, the successor Circle Inspector submitted CRA 937/09 4 the final report before Judicial First Class Magistrate-I, Parappanangadi who committed the case to the Sessions Court which made over to the Additional Sessions Judge for trial. Appellant pleaded not guilty. 3. The prosecution examined 14 witnesses and marked 19 exhibits and identified 11 material objects. Based on the evidence, the learned Sessions Judge convicted the appellant. There was no eye witness to the incident. Learned Sessions Judge relied on the circumstantial evidence to convict the appellant. He relied on the last seen theory, the alleged extra judicial confession made by the appellant to PW3, though PW3 denied it, and also Ext.P8 statement of PW3 recorded under Section 164 of Code of Criminal Procedure by PW11 Judicial First Class Magistrate and also the recovery of Mos.1 and 2 dresses worn by the CRA 937/09 5 appellant allegedly at the time of the incident. Based on these materials, learned Sessions Judge convicted the appellant for the offence under Section 302 of Indian Penal Code which is challenged in this appeal. 4. Learned counsel appearing for the appellant and learned Public Prosecutor were heard. 5. On going through the judgment of the learned Sessions Judge, it is clear that learned Sessions Judge did not consider the legal evidence available on record to find whether there is evidence to prove the guilt of the appellant. Pws.1 and 3 are cousin brothers. They are natives of Thiruvananthapuram. So also appellant and the deceased. Pws.1 and 3 are engaged in the business of manufacturing concrete frames and windows in their separate work shed at Venniyur paramba of Tirurangadi CRA 937/09 6 village. PW1 brought the deceased for employment in his wordshed. So also PW3 brought the appellant to his workshed. It is the prosecution case that later finding that there was sufficient work, PW1 sent the deceased to work with PW3. On the previous day of the incident, the deceased returned back to PW1 to work for him. It is the case that PW1 along with the appellant and the deceased, went to a bar at Kottakkal on the night of 23/1/2001. By about 11 p.m they returned back to the quarters of PW1 after consuming liquor. It is alleged that PW1 had vomitted and therefore, he slept and at that time appellant and the deceased were there. It is based on this fact, the last seen theory was built up which was accepted by the learned Sessions Judge. But apart from Ext.P1 FI statement, there is no legal evidence to prove that appellant was there along with CRA 937/09 7 PW1 and the deceased, either at the bar at Kottakkal or on the way from the bar to the quarters of PW1 or at the quarters of PW1 on the night of 23/1/2001. Though in Ext.P1 FI statement PW1 stated that he consumed liquor along with the deceased and the appellant and returned back to the quarters and when he slept appellant was with the deceased, PW1 denied that case and deposed that he did not see the appellant on 23/1/2001 and he had seen him only ten days earlier to that date. Learned Sessions Judge evidently relied on Ext.P1 FI statement, to hold that appellant was last seen with the deceased on the night of 23/1/2001 by PW1. Though Ext.P1 FI statement can be used for contradicting and corroborating the evidence of PW1, it is not a substantive evidence and cannot be relied on to hold that appellant was found with the deceased on the night of CRA 937/09 8 23/1/2001, as PW1 denied that fact and deposed that he did not see the appellant ten days earlier to the incident. In such circumstances, erroneous finding of the learned Sessions Judge that appellant was last found with the deceased by PW1 on the night of 23/1/2001 is not based on any legal evidence. That finding is unsustainable. 6. The judgment reveals that the learned Sessions Judge did not properly appreciate the evidence and ignored the settled legal principles. When there is no eye witness and the prosecution is only relying on the circumstantial evidence to prove the guilt, court must be cautious and has to satisfy itself that the circumstances from which the conclusion of guilt is to be drawn are fully established are constant only with the hypothesis of the guilt of the accused and are CRA 937/09 9 not explainable on any other hypothesis except that the accused is guilty. The Three Judge Bench of the Apex Court in **Sharad Birdhichand** ## **Sarda v. State of Maharashtra (1984 (4) SCC** **116)** held the following five golden principles which constitute “the panchasheel” of the case based on circumstantial evidence. “A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: 1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a CRA 937/09 10 grammatical but a legal distinction between 'may be proved' and “must be or should be proved” as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made: [SCC para 19, p.807:SCC (Cri) p.1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions. 2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. 3) the circumstances should CRA 937/09 11 be of a conclusive nature and tedency. 4) they should exclude every possible hypothesis except the one to be proved, and 5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 7. Learned Sessions Judge though relied on extra judicial confession, failed to note there is no legal evidence for any extra judicial confession. The prosecution case is that on the night of 23/1/2001 after committing murder of deceased Christopher, appellant at about 10.30 p.m went to the house of PW3 and disclosed to him that he committed the murder. It is the alleged extra judicial confession CRA 937/09 12 relied on by the learned Sessions Judge. PW3 at the time of evidence denied the very fact that appellant had been to his house on that night or revealed any fact, much less the factum of inflicting injury on the deceased or committing the murder. In spite of that evidence of PW3, learned Sessions Judge relied on the extra judicial confession which could only be relying on Ext.P8 statement recorded under Section 164 of Code of Criminal Procedure. Evidence of PW11 the Judicial First Class Magistrate establishes that Ext.P8 statement of PW3 was recorded by him under Section 164 of Code of Criminal Procedure. Even PW3 admitted that he had given that statement, though according to PW3 he disclosed the fact seen in Ext.P8 as dictated to him by the police, due to the fear and threat of the police. When PW3 denied the statement seen in CRA 937/09 13 Ext.P8, Ext.P8 though could be used for corroboration or contradiction being a statement recorded under Section 164 of Code of Criminal Procedure, it cannot be treated as substantive evidence and based on Ext.P8 statement an extra judicial confession cannot be upheld. 8. An extra judicial confession by its very nature is a weak type of evidence. It requires appreciation with a great deal of care and caution. ((Balwinder Singh v. State of Punjab (1995 Supp (4) SCC 259). It is also well settled that it is a rule of caution to look for independent reliable corroboration before placing any reliance on extra judicial confession ((Pakkirisamy v. State of Tamilnadu (1997 (8) SCC 158). In any case, extra judicial confession must be established to be true and made voluntarily. The exact words of the person ## CRA 937/09 14 who made the confession must be disclosed and it shall pass the test of credibility to be the basis of conviction. Even if, it is to be taken that an extra judicial confession was made by the appellant to PW3, PW3 did not disclose the exact statement of the appellant in the words spoken to him by the appellant. Ext.P8 statement does not contain any such statement in the words of the appellant. As declared by the Apex Court in **State of New Delhi v. Ram Lohi (AIR 1960 SC 490** ) statements recorded under Section 164 of Code of Criminal Procedure are not substantive evidence and cannot be made use of except to corroborate or contradict that witness. Whatever it be, when Ext.P8 is not a substantive piece of evidence, based on Ext.P8, it cannot be found that there was an extra judicial confession by the appellant to PW3 as disclosed therein, when CRA 937/09 15 PW3 denied the correctness of Ext.P8 statement and also denied the factum of even seeing the appellant on the might of 23/1/2001 much less making any confession of the murder. 9. What remains is recovery of Mos.1 and 2 dresses by PW13 the investigating officer on the information furnished by the appellant. Even if the case of recovery of Mos.1 and 2 by PW13 is accepted and based on Ext.P17 report of the Director of Forensic Science Laboratory it is to be found that Mo.2 dress of the appellant contained human blood, there is no evidence to prove that that blood group found therein is that of blood group of the deceased. Unless it is proved that the blood group found in MO.2 dress of the appellant is the same blood group of the deceased, based on the presence of human blood in Mo.2 dress recovered from the shed of PW3, it cannot be found that appellant CRA 937/09 16 committed the murder. Presence of human blood in MO.2 could be either that of the accused himself or it could have been that of any other person. It need not necessarily be due to the injury inflicted by the appellant on the deceased. There is absolutely no other evidence to connect the appellant with the offence alleged. 10. When the prosecution is relying on circumstantial evidence, learned Sessions Judge should not have ignored the failure of the prosecution even to allege much less to prove the motive. Though in a case where there is direct evidence of eye witness to prove that the injuries inflicted on the deceased were by the accused, absence of motive may not be relevant. That is not the case where prosecution is relying solely on circumstantial evidence. In that case, motive is definitely a CRA 937/09 17 relevant aspect to be considered. 11. When there is absolutely no legal evidence to prove that appellant was last seen with the deceased, there is no substantive evidence to connect the appellant with the death of deceased Christopher. Hence appellant cannot be convicted for the offence. Unfortunately, learned Sessions Judge did not consider whether there is legal evidence and relied on inadmissible evidence and convicted the appellant. In such circumstances, the conviction can only be set aside. Appeal is allowed. Appellant is found not guilty of the offence charged. His conviction by Additional Sessions Judge, Fast Track Court-III, (Ad-hoc), Manjeri in S.C.241/2008 is set aside. He is acquitted. Bail bond executed by him stands cancelled. As the appellant is in custody, release him CRA 937/09 **==> picture [13 x 9] intentionally omitted <==** forthwith, if he is not wanted in any other case. M.SASIDHARAN NAMBIAR, (Judge). P.BHAVADASAN, (Judge). uj.