Sumesh v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 13TH DAY OF APRIL 2018 / 23RD CHAITHRA, 1940 CRL.A.No. 1528 of 2010 SC 520/2006 of ADDITIONAL SESSIONS COURT (FAST TRACK - I), TRIVANDRUM DATED 27-07-2010 APPELLANT/ACCUSED SUMESH, AGED 29 YEARS, S/O.SURENDRAN, (INDIAN ARMY, 13 REGIMENT, C/O.56 APO, 15322192(N), SAPPER), PALAMOOTTUKADAVU VEEDU, HOUSE NO.AP/IX/532, AYYARANKUZHY, NEAR KUTTAMALA SHED, VAZHICHAL DESOM. BY SRI.B.RAMAN PILLAI (Sr). ## RESPONDENT/COMPLAINANT: STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. NICHOLAS JOSEPH THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 5.3.2018, THE COURT ON 13-04-2018 DELIVERED THE FOLLOWING: ## P.R.RAMACHANDRA MENON & A.M.BABU, JJ. - - - - - - - - - - - - - - - - - - - Crl.Appeal.1528 of 2010 - - - - - - - - - - - - Dated : 13[th] April, 2018 - - - - - - - - - - - - - ## JUDGMENT ## A.M.Babu, J - 1.The appellant was charged under Sec.302 of IPC. He was convicted and sentenced. Hence is he in appeal. - 2.The prosecution case is this : It was at 6.45 pm on 15.8.2003 the incident. It happened in front of a hotel named Ammu hotel at Kuttamala Poochamukku in Kovillur desom of Thiruvananthapuram district. A person was murdered in the incident. He was Sreekantan. He had misbehaved to the mother of the appellant. Hence the appellant had grudge against Sreekantan. Therefore the appellant with a knife stabbed Sreekantan incessantly all over the body including the chest and abdomen. The victim sustained severe injuries to which he succumbed on the spot. - 3.PW1 gave first information statement (Ext P1). PW9, **Crl.A.1528/2010** 2 sub-inspector, recorded it and registered the FIR, Ext P10. Investigation was conducted by four circle inspectors of police. One was not examined. The others were examined as PWs 10, 16 and 17. PW16 laid the charge-sheet. The case was taken on file by the judicial magistrate of the first class, Kattakada. The learned magistrate committed the case to the court of session, Thiruvananthapuram division. The case was made over to the additional sessions judge (fast-track I) for disposal. 4.After hearing the prosecution and the defence, the learned additional sessions judge framed charge against the appellant under Sec.302 of IPC. The charge was read over to the appellant and explained to him. He denied the charge. He claimed to be tried. Thereupon the prosecution entered on evidence. PWs 1 to 17 were examined and Exts P1 to P26 and MOs 1 to 8 were marked on prosecution side. Two contradictions were marked on defence side as Exts D1 and D2. The learned trial judge examined the appellant under Sec.313 of Cr.P.C. He denied the incriminating evidence and circumstances against **Crl.A.1528/2010** 3 him. He filed a written-statement of defence. His was a case of total denial of his involvement in the crime. The learned trial judge after hearing both sides found that the appellant was not entitled to be acquitted under Sec.232 of Cr.P.C. Hence he was called upon to enter on his defence and adduce evidence. He did not adduce any evidence. - 5.The appellant was found guilty of the charge under Sec.302 of IPC. He was convicted. He was sentenced to imprisonment for life. He was imposed a fine of Rs 2,00,000/-. The same, if realized, was directed to be paid to the widow of the deceased as compensation under Sec.357 of Cr.P.C. The appellant was directed to undergo rigorous imprisonment for two years if the fine was defaulted. - 6.We heard the learned senior counsel Sri.M.K.Damodaran and after his demise, the learned senior counsel Sri.B.Raman Pillai on the side of the appellant. Heard too the learned public prosecutor Sri.Nicholas Joseph. 4 ## **Crl.A.1528/2010** - 7.The prosecution case is that the appellant knifed Sreekantan to death at 6.45 pm on 15.8.2003. The death of Sreekantan was a homicide. He was murdered. It is a fact admitted by the defence. According to the defence, as discernible from the suggestions put to some of the prosecution witnesses in crossexamination, Sreekantan was attacked and stabbed with different weapons by a group of people. Thus, admittedly, Sreekantan was murdered; whoever be the culprit or culprits. - 8.Homicide is proved also. PW11 was working as the professor of forensic medicine at the medical college hospital, Thiruvananthapuram. He on 16.8.2003 conducted post-mortem examination on the body of the deceased. PW11 prepared and issued Ext P13 autopsy certificate. He initially did not speak in court to the injuries noted by him at the time of the post-mortem examination. What was done by the trial court was just to mark the autopsy certificate as an exhibit. A post-mortem examination certificate is only a previous statement of its author when he is examined in court. It is not substantive **Crl.A.1528/2010** 5 evidence. It can be used only to corroborate the evidence of the doctor who authored it. What the doctor deposes in court alone is substantive evidence. The apex court holds so in State of U.P. v. Mohd. Iqram (AIR 2011 SC 2296). As the appellant was not entitled to a walkover solely because of the mistake committed by the trial court in reading the contents of Ext P13 as substantive evidence, we invoked our jurisdiction under Sec.391 of Cr.P.C. We sent the case records back to the trial court and directed it to re-call PW11 and examine him further. Accordingly, the trial court re-called PW11 and examined him further. PW11 spoke to the injuries on the body of the deceased noted by him at the time of the post-mortem examination. - 9.The evidence of PW11 as corroborated by Ext P13 proves that there were 16 ante-mortem injuries on the body of the deceased. Those injuries, except three, were incised wounds. Injury Nos 1 and 2 were incised penetrating wounds on the chest. Injury No.3 was an incised penetrating wound on the abdomen. Those three injuries were the fatal injuries. Those **Crl.A.1528/2010** 6 fatal injuries and the remaining incised wounds were possible to be inflicted with a knife as deposed to by PW11. The medical evidence thus proves beyond any doubt that the death was homicide. - 10.Ocular evidence, extrajudicial confession, res gestae and recovery of MO1 knife. These are the four items of evidence relied on by the prosecution to prove the complicity of the appellant. We shall discuss the evidence. - 11.First, ocular evidence. Six witnesses were examined as eyewitnesses. They were PWs 1 to 6. PW1 was loyal and the others were hostile to the prosecution. It was in front of Ammu hotel the incident took place according to the prosecution. PW2 was the owner of the said hotel. He said he knew Sreekantan, but not the appellant at the time of the incident. PW2 deposed that Sreekantan came to his hotel just before the incident. Sreekantan had a tea from the hotel, watched the T.V there, bought a cigarette and made his exit from the hotel, said PW2. The witness spoke that when he was in the kitchen of his hotel, **Crl.A.1528/2010** 7 he heard from outside someone crying out for his life. PW2 said he rushed to the spot and saw Sreekantan lying prone in front of the hotel in a pool of blood. He was dead, said PW2. PW2 deposed that he did not see who stabbed Sreekantan, but saw the assailant running away holding a knife. PW2 stated that he could not identify who the person ran away was. The witness added that he could not identify the assailant as his back side alone could be seen by the witness. When PW2 was asked whether he could identify MO1, he said that the police came to his hotel and showed him it. The witness denied having given Ext P2 contradiction. The prosecution obtained permission of the court under Sec.154 of the Evidence Act and put questions to PW2. But the prosecution did not get any ocular evidence in its favour from PW2. In fact, Ext P2 contradiction was put and marked even before taking permission under Sec.154 of the Evidence Act and under the proviso to Sec.162 (1) of Cr.P.C. That was highly irregular. The deposition of PW2 does not contain any ocular evidence favourable to the prosecution. **Crl.A.1528/2010** 8 12.PWs 3 to 6 also denied having seen the incident. PW3 deposed that he heard the cry and saw a person running away. The witness stated that he did not see the incident and could not identify who was the person running away. PW3 denied Ext P3 statement brought out as a contradiction. According to PW3, he had no previous acquaintance with the appellant. PW3 was asked whether the person ran away had resemblance to the appellant. The witness agreed to the suggestion. But that is not good evidence for the prosecution. PW3 deposed that he was told by some people that the person who stabbed Sreekantan was the appellant and that there was such a talk in the locality. The said evidence of PW3 is only hearsay evidence. PW3 did not identify MO1. There is nothing in the evidence of PW3 for the prosecution to take advantage of. 13.PW4 also denied him to be an eyewitness. He spoke that he came to the scene of occurrence after the incident. It was also his evidence that what he saw was the dead body of the deceased. He denied Exts P4 and P5 contradictions. PW5 asserted that he did not **Crl.A.1528/2010** 9 see the incident. He asserted further that he came to the place of occurrence only after the incident. He denied Ext P6 contradiction. PW6 also denied having seen the incident. He denied Exts P7 and P8 contradictions. PW4 did not identify MO1. No attempt was made when PWs 5 and 6 were in the witness box to get the knife identified by them. The depositions of PWs 4 to 6 are not useful to the prosecution for any purpose. - 14.PW1 was the sole ocular witness who supported the prosecution. He was employed in Ammu hotel which was run by PW2. PW2 also spoke that PW1 was an employee in the hotel. PW1 deposed that he knew both Sreekantan and the appellant. PW1 stated that the incident was in 2005. He answered a leading question put to him that the incident was on 15.8.2003. He stated that Sreekantan came to the hotel at 7.00 pm, had a tea and went out. Soon after then, said PW1, he heard a voice “do not stab”. According to PW1, he came out and saw the appellant stabbing Sreekantan twice or thrice and running away. The victim who had received five or six stabs on his leg, hand, abdomen **Crl.A.1528/2010** 10 et cetera died at once, said PW1. He stated that the locale of the crime was just in front of Ammu hotel. To a question put to him by the court as to the source of light, he said that there was the light from the hotel. PW1 deposed that he saw the knife used by the appellant. The witness added that it might be MO1. PW1 went to the police station to give FI statement and he gave it at 8.30 pm on the same day. The same was marked as Ext P1. - 15.Is PW1 a believable witness ? Is his evidence sufficient to prove the incident ? Did he give a full and correct version of the incident ? These are the questions for us to consider. - 16.Going by his evidence, what PW1 saw was the appellant inflicting two or three stabs on Sreekantan. PW1 did not claim that he saw anything more than stated above. PW1, no doubt, stated that Sreekantan had received five or six stabs on the leg, hand, abdomen et cetera. But the witness did not claim to have seen the infliction of all those stabs by the appellant on the victim's leg, hand, **Crl.A.1528/2010** 11 abdomen or any other part of the body. As submitted by the learned counsel for the appellant, PW1 did not state where exactly the appellant stabbed on the body of the victim. The learned public prosecutor submitted that PW1 was not expected to say what he did not see. It was also submitted that PW1 saw only the execution of two or three stabs which he spoke in court. The argument of the learned public prosecutor can be accepted only if PW1 did not state anywhere that he saw anything other than he stated in court. Ext P1 was the FI statement given by PW1. The same is a piece of evidence, although not substantive, very much relied on by the prosecution. PW1 stated in the FI statement that he saw the appellant inflicting one or two stabs on the left thigh of Sreekantan with a knife. The FI statement recites that the appellant stabbed on the abdomen of the victim once or twice. It was also stated by PW1 in Ext P1 that the appellant stabbed on the chest of the victim with force. Going by the FI statement, PW1 saw on which part of the body of the victim the appellant stabbed and inflicted injuries. The said PW1 came and deposed in court that he saw the **Crl.A.1528/2010** 12 appellant inflicting two or three stabs on the victim. The prosecution failed to elicit from PW1 his version in the FI statement. The evidence of PW1 in his examination-in-chief was too casual that he saw execution of two or three stabs. There is no indication in PW1's evidence that he could remember only a part of the incident and forgot the rest. The evidence PW1 has given in court was different from his version in the FI statement. The ocular evidence of PW1 is therefore very weak. 17.PW1 was cross-examined. It was suggested to him that what he saw when he reached the place of occurrence was a person lying in prone position. PW1 agreed to the suggestion. He would not have agreed to such a suggestion if he had really seen the victim being stabbed by the appellant. The answer given by PW1 to the very next question would suggest that he was told by the people gathered there that the victim was stabbed. He said he was not aware as to who gave him the said information. In view of the evidence of PW1 discussed above, his evidence that he did see a part of the incident cannot be safely **Crl.A.1528/2010** 13 ## relied on. 18.PW1 went to the police station to give the FI statement. He was assertive that the police did not visit the place of occurrence before he left for the police station to lodge the FI statement. Once again in cross-examination PW1 asserted that he left for the police station before the police arrived at the scene of occurrence. But PW9 who recorded the FI statement and registered the FIR spoke that he reached the scene of occurrence before the lodging of the FI statement. PW9 spoke to the presence of PW1 at the scene of occurrence at the time of arrival of the former there. The evidence of PW9 even suggests that when he reached the police station after visiting the scene of occurrence, PW1 was along with him (PW9). In view of the evidence of PW9 discussed above, the assertion of PW1 referred to above cannot be accepted and it produces suspicion. 19.The specific motive alleged by the prosecution was the grudge of the appellant towards Sreekantan as **Crl.A.1528/2010** 14 the latter misbehaved to the mother of the former. That was the motive stated by PW1 in the FI statement. But that was not the motive spoken to by PW1 in court. The motive deposed to by him was the grudge on account of the illicit relationship Sreekantan had with the mother of the appellant. The two versions of motive stated by PW1 also enfeeble the reliability of his evidence. 20.For the reasons we have stated in the immediately preceding four paragraphs, we are unable to believe the evidence of PW1. He was the sole eyewitness supported the prosecution. His solitary evidence is quite insufficient to prove the incident. His evidence is not of a sterling quality. 21.Next, extrajudicial confession of the appellant and res gestae. The extrajudicial confession was allegedly made to PW7. His evidence in his examination-in-chief is stated below : He is the cousin of the deceased. Sreekantan died on 15.8.2003. PW7 was at his house at the time of the incident. The appellant came in front of the house **Crl.A.1528/2010** 15 of PW7 sitting on the passenger's seat of a bike which was driven by a boy. The appellant sat on the pillion seat of the bike stretching his both legs and holding a knife in his stretched hand to exhibit it. The bike stopped in front of the house of PW7. The appellant uttered to PW7 that the appellant had stabbed Sreekantan. When the appellant left, PW7 rushed to the scene of occurrence and found Sreekantan dead. 22.According to the learned public prosecutor, the utterance of the appellant to PW7 would amount to res gestae under Sec.6 of the Indian Evidence Act and also extrajudicial confession under Sec.24 of the said Act. The learned public prosecutor submitted that the evidence of PW7 about the utterance of the appellant was not cross-examined and therefore should be taken to be proved. We are unable to accept the submission that there was no cross-examination on that aspect. The statement of PW7 was recorded by PW17. The evidence of PW7 that the appellant came on a bike sitting on the rear seat with hands and legs stretched and holding the **Crl.A.1528/2010** 16 knife in the stretched hand exhibiting it was proved to be an omission in the statement of PW7 recorded by PW17 under Sec.161 of Cr.P.C. Although PW7 asserted that he stated so to the police, PW17 deposed that PW7 did not state so. PW17 thus proved the said omission which would amount to a contradiction within the meaning of the explanation to Sec.162 of Cr.P.C. The said omission is a material contradiction. The further evidence of PW7 that the knife was blood stained and that it was red was also proved to be an omission amounting to contradiction. PW17 proved the said omission also. The evidence of PW7 that the appellant was the pillion rider was also proved through PW17 to be an omission. Ext D2 statement of PW7 was to the effect that the appellant himself drove the bike to the house of the former. PW17 proved Ext D1 also. In the light of the material contradictions mentioned above, the evidence of PW7 about the alleged extrajudicial confession or res gestae cannot be accepted at all. 23.PW7 in his evidence depicted a picture of the **Crl.A.1528/2010** 17 appellant as that of a person celebrating a victory. The house of PW7 is two or three kilometres away from the place of occurrence. Was the appellant riding on the pillion seat of a motorbike on a public road in the manner narrated by PW7 in a mood of celebrating his victory without being noticed by anybody? The prosecution did not cite and examine any person who saw the appellant travelling on a bike exhibiting a knife which was red on account of staining with blood. The house of PW7 as stated by him is at Kuttamala junction. The prosecution did not examine any other person who heard the declaration or proclamation of the appellant to the effect that he knifed Sreekantan. The person who allegedly drove the bike with the appellant on the passenger's seat was a good witness to speak to the proclamation or declaration of the appellant allegedly made to PW7. There was no attempt during the investigation to locate the rider of the bike in order to examine him as a witness. The evidence of PW7 is unbelievable and artificial. 24.When an extrajudicial confession is pressed into **Crl.A.1528/2010** 18 service, the prosecution should explain why a person accused of an offence should make it to the person to whom it was allegedly made. It is not a matter for the defence to elicit, but it is a matter for the prosecution to establish. The prosecution has no explanation as to why the appellant travelled two or three kilometres on public road to choose PW7 to make the so-called extrajudicial confession. The evidence of PW7 cannot at all be believed. 25.The last item of evidence relied on by the prosecution is the recovery of MO1 at the instance of the appellant. MO1 is the knife allegedly used by the appellant to inflict injuries on the victim. The appellant who was a soldier was officially handed over to PW16 for arrest on 30.9.2004. PW16 who was officiating as the inspector of Kattakada police circle arrested the appellant. PW16 prepared Ext P17 memorandum of arrest and Ext P18 memorandum of inspection. PW16 spoke that the appellant gave a disclosure statement to PW16 when the former interrogated the latter on 1.10.2004. The disclosure statement as deposed to by PW16 was that the **Crl.A.1528/2010** 19 appellant had kept the knife on the top of the wall of his old house and that he would produce it if he was taken there. According to PW16, on the basis of the said information given by the appellant and as led by him, PW16 reached the house bearing door No.API/122 which was an old house kept closed. PW16 spoke that the appellant had taken MO1 knife from the top of the eastern wall of the western room of the said house and handed it over to PW16. The witness stated that he seized MO1 at 8.15 a.m on 1.10.2004 in the presence of witnesses. PW16 said he prepared Ext P16 seizure mahazar at the time of seizure of MO1. Ext P16 (a) is the disclosure statement extracted in Ext P16 seizure mahazar. 26.The definite case of the prosecution is that the appellant hid MO1 in his old house which was kept closed and unused. But the prosecution did not produce any evidence to prove that the said house was the house of the appellant. As conceded by PW16, he did not obtain and produce any document from the village office to prove that the property was owned by the appellant or a copy of the building **Crl.A.1528/2010** 20 tax assessment register maintained by the panchayat to prove that the building belonged to the appellant. PW16 spoke that he was unaware as to under the lock and key of whom was the said building. The prosecution failed to prove that the building or the land belonged to the appellant. According to PW16, he pushed the door to open it to gain entry into the building. That means the building was only kept closed, but not locked. The recovery was allegedly effected more than one year after the incident. The incident was on 15.8.2003 and the recovery was on 1.10.2004. The name of the appellant was mentioned as the culprit in the FI statement given and the FIR registered on the date of incident itself. Still, there was a delay of over one year to arrest the appellant. The prosecution has no case that the appellant was absconding. The prosecution cannot have such a case. For, he was a person in military service and no evidence was produced to show that he did not report for duty at the place where he was posted or that he was absent in his place of employment. PW16 deposed that he wrote a letter to the superior officer of **Crl.A.1528/2010** 21 the appellant for permission to arrest the appellant. That means permission to arrest the appellant was sought by PW16 only. He took over the investigation on 13.9.2004. That means permission to arrest the appellant was sought only on or after 13.9.2004. Before PW16, three circle inspectors of police conducted the investigation. PW17 began the investigation on 15.8.2003 itself. He did not say that he made any attempt to arrest the appellant. PW10 also did not take any step to arrest the appellant. CW24 was the circle inspector who investigated the case after PW17 and before PW16. CW24 was not even examined by the prosecution. The evidence of PW16 that he wrote a letter to the military officer for permission to arrest the appellant should mean that CW24 too did not take any step to arrest the appellant. PW16 after taking over the investigation on 13.9.2004 sought for permission to arrest the appellant and the military authority made the appellant available for arrest on 30.9.2004. There was no delay on the part of the military to make the appellant available for arrest. But there was inordinate delay on the part of the **Crl.A.1528/2010** 22 investigating officers to take any step to arrest the appellant. In these circumstances, the inordinate delay in the recovery of MO1 goes a long way against the prosecution. The alleged recovery cannot be accepted as a genuine one. 27.PW15 signed Ext P16 seizure mahazar as a witness. He spoke that he signed Ext P16, but did not witness the recovery. He deposed that the appellant was unfamiliar to him. The witness said that what did he do was to put his signature on a paper shown to him by the police. He stated that he did it at the Neyyardam police station. According to PW15, he was told by his wife that a policeman came to their house and instructed his wife that he should go to the police station. Accordingly, said PW15, he went to the police station and signed the paper. He deposed that he was unaware from where the knife was recovered. He denied the suggestion put to him by the public prosecutor that he did see the recovery of the knife. He denied that he spoke falsehood in court. The public prosecutor who examined PW15 put such questions to him without even taking the **Crl.A.1528/2010** 23 permission of the court under Sec.154 of the Evidence Act to put questions which might be put in cross-examination by the adverse party. The prosecution is therefore bound by the evidence of PW15, unless it is proved that the witness spoke falsehood. There is nothing in the evidence of PW15 for the prosecution to contend that he was speaking falsehood in court. The recovery of MO1 goes. 28.What is admissible and relevant under Sec.27 of the Indian Evidence Act is not the mere recovery of an object. There must be the discovery of an incriminating fact to get Sec.27 attracted. Therefore the prosecution should prove not only the recovery of MO1, but also that it was the weapon with which the injuries were inflicted on the body of the victim. The witnesses to whom were shown MO1 at the trial were PWs 1 to 4, 7, 11 and 16. Of them, PW11 was the doctor who conducted the postmortem examination and PW16 was the person who allegedly recovered MO1. We shall consider the evidence of the other witnesses to whom MO1 was shown at the trial. **Crl.A.1528/2010** 24 29.PW3 spoke that he was unaware whether MO1 was the knife which he saw in the hand of the assailant. PW4 said that he never had seen MO1 knife before. PW2 deposed that he was unable to identify the knife held by the assailant who ran away. The witness added that MO1 was the knife he was shown by the police. PWs 2 to 4 were hostile witnesses and therefore the prosecution could not expect any favourable evidence from them. But the prosecution must have had the expectation to get support from the evidence of PWs 1 and 7. PW1 asserted that he was able to identify the knife with which Sreekandan was stabbed. But PW1 was not that much assertive when MO1 was shown to him. It seems to be the same was the answer given by him. The response of PW7 was also more or less the same when MO1 was shown to him. With such evidence on record, the prosecution cannot contend that MO1 was definitely the weapon used by the assailant. - 30.The evidence of PW7 was that the knife when it was in the hand of the appellant had the colour of blood. MO1 was forwarded to the forensic science **Crl.A.1528/2010** 25 laboratory for chemical examination. The report is not seen marked as an exhibit. However, PW16 who claimed to have recovered MO1 admitted in crossexamination that the report of chemical examination was that no blood stain was found on MO1. The prosecution failed to prove that MO1 was the weapon used in the crime. Therefore Sec.27 of the Evidence Act is not attracted. 31.The motive for the crime alleged by the prosecution was that Sreekandan misbehaved to the mother of the appellant. That was the motive mentioned in the charge framed by the trial court. The motive stated in Ext P1 FI statement was also the same. But PW1 who gave the FI statement deposed to a different motive in court. He spoke that Sreekandan had illicit relationship with the mother of the appellant. PW1 did not speak to the motive he mentioned in the FI statement given by him. PW7 spoke to an altogether different motive. He stated that the mother of the appellant owed money to Sreekandan and that there was a quarrel between the two on that issue. PW7 referred to the lodging of a **Crl.A.1528/2010** 26 complaint by the mother of the appellant against Sreekandan at the Neyyardam police station. Ext P22 is the copy of the FIR in the said crime. Ext P22 was produced by the prosecution to prove the motive. The allegation contained in Ext P22 FIR against Sreekandan was that he made an attempt to snatch the chain of the mother of the appellant and thereby attempted to commit theft. The version in Ext P22 does not support any other version mentioned by us in this paragraph. The prosecution failed to maintain consistency on motive. - 32.The prosecution was not successful in establishing the complicity of the appellant by ocular evidence. The alleged extrajudicial confession and res gestae attempted to be proved through PW7 failed. The alleged recovery of MO1 was shabby and it did not lead to the discovery of any incriminating fact against the appellant. On motive also there were different versions. The prosecution should fail. - 33.However, the learned public prosecutor made an attempt to save the case by referring to the **Crl.A.1528/2010** 27 evidence of PW2. PW2 deposed that he was told by PW1 when both of them gathered at the scene of occurrence that the person ran away was the appellant. According to the learned public prosecutor, the said evidence of PW2 is admissible under Sec.6 of the Evidence Act as res gestae. We are unable to accept the argument. For, the ocular evidence of PW1 is not a believable story. Therefore, what he stated to PW2 cannot be accepted as a statement of a person who saw the incident. Sec.6 has therefore no application at all. - 34.The trial court accepted the evidence of PWs 1, 7 and 16 to find the appellant guilty under Sec. 302 of IPC. The learned trial judge had taken into account the evidence of those witnesses as appeared in their respective examinations-in-chief. The impugned judgment does not refer to the evidence in the cross-examination of PWs 1, 7 and 16. That was indeed a wrong approach. There is no believable evidence to find the appellant guilty. His appeal deserves to be allowed. 28 ## **Crl.A.1528/2010** 35.The appeal is allowed. The impugned judgment, conviction and sentence are set aside. The appellant is acquitted of the charge under Sec.302 of IPC. He is entitled to be set at liberty in the present case. He shall be released from custody if his detention is not necessary in connection with any other case. Sd/- P.R.RAMACHANDRA MENON Judge Sd/- A.M.BABU Judge Mrcs/sks/9.4. /True copy/ Sd/- P.S.To Judge