Surendran @ Soori v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MR. JUSTICE A.M.BABU FRIDAY, THE 21ST DAY OF JULY 2017 / 30TH ASHADHA, 1939** **CRL.A.No. 2061 of 2010** **SC.112/2008 of II ADDL. SESSIONS COURT, PALAKKAD CPC.8/2008 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PALAKKAD** ## **REVISION PETITIONER/ACCUSED :** **SURENDRAN @ SOORI, S/O BALAKRISHNAN, CHANAKAKUNDU VEEDU, THADUKKASSERY, KERALASSERI.** **BY ADVS.SRI.P.VIJAYA BHANU (SR.) SMT.P.MAYA SRI.VIPIN NARAYAN** ## **RESPONDENT/COMPLAINANT :** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SMT. AMBIKA DEVI S., SPECIAL PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **16.5.2018** ## **C.K.ABDUL REHIM & A.M.BABU, JJ. ----------------------------------------------Crl.A. No. 2061 of 2010 ----------------------------------------------Dated this the 21st day of July, 2017** ## **JUDGMENT** ## **Abdul Rehim,J.** Accused in SC No.112/2008 on the files of the IInd Additional Sessions Court, Palakkad is the appellant herein, challenging the conviction and sentence imposed against him under section 302 and 394 of IPC. The trial court had convicted the appellant finding him guilty of offence under section 302 and 394 IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.2000/- and in default to undergo simple imprisonment for 2 months under section 302 IPC and to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.1000/- and in default to undergo simple imprisonment for one month under section 394 IPC. 2. The prosecution case in brief was that, on 18.9.2006 at about 4.00 p.m. the appellant had inflicted repeated cut injuries on the body of one Janaki (the deceased) with a deadly weapon of “Vettukathi” (a chopper like weapon) at her head, neck and face, causing fatal injuries and robbed her gold chain, at a place called Chanakakkundu in Thadukkasseri at a pathway providing access to the house of Janaki, due to enmity towards 2 Crl.A. No. 2061 of 2010 her based on the dispute existed with respect to the right of the pathway. Police investigation in the case was set into motion based on the First Information statement (FIS) given by PW1, which was recorded by PW12, at about 7.00 p.m. on the date of incident itself. It is the case of the prosecution that a telephonic information regarding the incident was received at Kongad Police Station at about 5.30 p.m. and the police party had reached the spot at about 6.00 p.m. Ext.P1 First Information Statement was recorded from a place near to the spot of occurrence. PW12 had registered Ext.P10 FIR on the basis of Ext.P1 statement after reaching at Kongad police station, at 8.30 p.m. on the same day. The prosecution had examined PW1 to PW14 and marked Exts.P1 to P17, apart from identifying MO1 to MO11 material objects. No oral evidence was adduced from the side of the appellant/accused. Exts.D1 to D3 were marked from the side of the defence. 3. The prosecution had cited PW1 as an eye witness to the incident. But he turned hostile to the prosecution and denied of having given any statement as that of Ext.P1, even though he admitted his signature in Ext.P1. PW4 is none other than the husband of the deceased. He has not witnessed the incident. According to him, the accused had wrongfully restrained and assaulted him at a place called 'Agawanda' on 3 Crl.A. No. 2061 of 2010 the date of incident. He deposed that he had informed Janaki about the said incident. His testimony is to the effect that, a person named Jose took him to the house and on the way he found Janaki lying dead. He identified MO1 as the gold chain belonging to Janaki. According to him, at the time when he saw Janaki lying dead, MO1 was not seen in her neck. He further deposed that MO2 'vakkathi' was with the accused in a plastic bag, at the time when the accused had assaulted him. According to PW4, he saw Janaki lying dead at 3.15 p.m, whereas the prosecution case itself was that the occurrence took place at 4 p.m. During cross-examination it was brought out that PW4 has not mentioned to the Police that, while he was assaulted accused had taken out MO2 from the bag. Sri.Jose, cited as a witness on behalf of the prosecution, who stated to have accompanied PW4 to the spot of occurrence, also turned hostile and denied of having seen Janaki lying dead. 4. The prosecution is relying on circumstantial evidence adduced in the case, which mainly consists of recovery of MO1 gold chain and MO2 weapon. Case of the prosecution is that, when questioned after the arrest at 3.p.m on 19.9.2006, the accused had given a statement that the gold chain snatched from the neck of Janaki was pledged at 'KSK Trust' run by a person named K.Subramaniam, situated at 4 Crl.A. No. 2061 of 2010 Vengasseri, Ottapalam and that if he is taken he will show the place. According to the prosecution as led by the accused, the investigating officer had recovered MO1 gold chain from an establishment named 'KSK Trust' run by PW6, on preparing Ext.P5 mahazar. The statement of disclosure made by the accused is Ext.P5(a). PW6 when examined before the Court identified the accused. He deposed that on the date of occurrence at about 5.p.m the accused came to his establishment for pledging MO1 gold chain. According to PW6, he accepted the gold chain under pledge and gave a sum Rs.11,000/- to the accused. Testimony of PW6 is to the effect that, since accounts of the said day remained closed at that time, the pledge was endorsed with the date of the succeeding day in the accounts. He produced Ext.P4 ledger kept in the establishment in which issuance of gold loans were endorsed. Specific entry contained in page 182 of Ext.P4 under entry No.4977/2006 would reveal that the accused had pledged MO1 on that date. The said entry contained in Ext P4 is marked as Ext.P4(a). PW7 is an attester to Ext.P5 mahazar. He is the brother of PW6. He deposed of having witnessed the police recovering MO1 gold chain and Ext.P4 register from the office of PW6 and conceded of having signed Ext.P5 mahazar as a witness. In cross-examination he deposed that the police came 5 Crl.A. No. 2061 of 2010 in the morning at 11.30a.m. 5. According to the prosecution MO2 was recovered on the basis of Ext.P6(a) disclosure made by the accused, while questioning after his arrest. Ext.P6 is the mahazar prepared for the said recovery. PW8 was examined as an attester to Ext.P6 recovery mahazar. He deposed of having witnessed the accused handing over MO2, at the house of one Vasu. He conceded of having signed Ext.P6 as a witness. According to PW8 the time when he had signed Ext.P6 mahazar is between 10 and 11 hours in the morning. He could not identify as to which was the weapon recovered, among MO2 and MO3 choppers available in the court. Further case of the prosecution is that MO9 lunki and MO10 shirt were also recovered based on Ext.P4 (a) disclosure made by the accused, by preparing Ext.P11 mahazar. No independent witness was examined by the prosecution to prove the said recovery. However, the investigating officer (PW14)had deposed about the said recovery as well as about the recovery of MOs 1 and 2 and Ext.P4 register. 6. Learned Senior Counsel appearing for the appellant/accused, Sri P.Vijaya Bhanu contended that, the prosecution had not succeeded in proving discovery of MOs 1 and 2 conclusively. It is pointed out that the testimony of PW6 6 Crl.A. No. 2061 of 2010 cannot be believed as there are patent discrepancies in the entries contained in Ext.P4 ledger. It is pointed out that the specific case deposed by PW6 is that the accused came with MO1 chain for the purpose of pledging the same on the evening of 18.9.2006 at 5.p.m. His testimony is to the effect that, since the account of the said day remained closed, the entry was made with the specific date of 19.9.2006. Learned Senior Counsel had drawn our attention to Ext.P4 ledger. The specific entry is contained on page 182 under loan No.4977/2006. The said entry, which is specifically marked as Ext.P4 (a), would show that the ornaments pledged was having the weight of 18.7 gms and that the loan amount disbursed is Rs.11,000/-. Page No.182 of Ext.P4 contains entries with respect to two loan transactions as loan Nos 4977/2006 and 4978/2006. The next page of the ledger, ie. Page No.183, also contains entries with respect to two other loan transactions Nos 4979/2006 and 4980/2006. In all the above said four transactions the date of loan is mentioned as 19.9.2006, whereas subsequent 11 entries contained in page Nos 184 to 188, which pertains to loan transactions Nos 4981/2006 to 4989/2006, the dates of the loan transactions were seen corrected from 18.9.2006 to 19.9.2006. All the subsequent entries thereafter with respect to loan No.4999/2006 to 5002/2006, the dates are noted as 7 Crl.A. No. 2061 of 2010 19.9.2006, without any corrections. When questioned about the said discrepancy, in the cross-examination PW6, he had conceded about the corrections in loan transactions from Nos.4981/2006 to 4991/2006. His explanation is that, it was only due to the mistake occurred in the first entry that the dates in the subsequent entries of that day was noted mistakenly. But it is to be noted that, even after the corrected 11 entries contained in page 184 to 189, there are 11 other entries from No.4992/2006 to 5002/2006 with the date noted as 19.9.2006, which remained without any corrections. The above aspect coupled with the fact that the testimony of PW7 is to the effect that the recovery was at 11.30 a.m would clearly points out that the recovery is a planted evidence fabricated by the investigating agency, is the contention raised. Such a contention was raised specifically in the context that, according to the prosecution, the accused was arrested only at 3.p.m on 19.9.2006. 7. The learned Senior Counsel also contended that, the recovery of MO2 cannot be believed since the specific case of the independent witness examined by the prosecution is that, the recovery was effected between 10 to 11 hours in the morning. It is pointed out that the person from whose residence MO2 was allegedly recovered was not examined by 8 Crl.A. No. 2061 of 2010 the prosecution. It is argued that there is no probability at all for the accused to hide MO2 chopper in the house of another person, after committing the alleged murder. 8. Drawing our attention to Ext.P12 to Ext.P14 chemical examination reports, learned Senior Counsel contended that, it has come out in evidence that MO3 chopper, which was allegedly seized from the scene of occurrence was proved as containing human blood stains of Group-B, whereas no blood stains was detected in MO2 chopper. Therefore it is contended that the prosecution case that the injuries were inflicted with MO2 chopper cannot be accepted. Learned counsel for the appellant further pointed out that, Ext.P14 report of chemical examination would reveal that, blood stains contained on the guaze was found to be of A-group, whereas blood stains detected on MO3 chopper was of B-group. Hence it is argued that, even assuming, without admitting, that the investigating agency had discovered MO2 based on disclosure made by the accused, the said weapon cannot be connected in any manner with the incident. So also it is contended that the recovery of MO9 lungi which was proved to be having blood stains in it, is of no use because group of the blood stains could not be identified. Since Ext.D3 'Inspection Memo' prepared at the time of arrest of the accused would indicate that the accused was 9 Crl.A. No. 2061 of 2010 having two injuries in his body at the time of arrest, the blood stains contained in the lungi was nothaving any incrimination against the accused, is the contention. 9. Learned Senior counsel contended that, the prosecution was not successful in proving the guilt of the accused through any conclusive proof adduced in evidence. It is contended that, the alleged recoveries of MO1 gold chain and MO2 chopper suffer from various infirmities which would go deep into genuineness of such recoveries. It is further contended that, the alleged robbery of MO1 gold chain is totally unbelievable, because no breakage was noticed on the said chain. It is further pointed out that Ext.P2 inquest would reveal that various other gold ornaments like bangle, ear stud, finger rings etc., were found on the body of the deceased. It is argued that if the accused had committed robbery of Ext.P1, he would have definitely taken away the other ornaments as well. As mentioned earlier, vehement contentions were raised to the effect that recovery of MO2 cannot be used as an incriminating evidence against the accused since no evidence is forthcoming to the effect that MO2 is the weapon used in the commission of the offence. 10. Controverting the above contentions learned Special Public Prosecutor (women and children) argued that, the 10 Crl.A. No. 2061 of 2010 recovery of MO1, MO2 and MO9 are strong circumstances incriminating against the accused and that the prosecution could establish all the links in the chain of circumstances to prove the guilt of the accused. It is contended that the accused had failed in offering any explanation, nonetheless any acceptable explanation, for possession of MO1 which was proved to be the gold chain worn by Janaki at the time when she was murdered. According to the learned Special Public Prosecutor the presumption envisaged under Section 114 of the Indian Evidence Act is available in such circumstances and the non-explanation on the part of the accused need to be inferred as a strong circumstance pointing towards his guilt. It is further contended that, the non detection of blood stains on MO2 weapon cannot be taken as a ground to discredit discovery of the said weapon based on disclosure made by the accused, since it is an acceptable piece of evidence coming within the purview of Section 27 of the Indian Evidence Act. It is also contended that, despite the discrepancies noted in Ext.P4 ledger, the testimony of PW6 and PW7 would clearly corroborate the case of the prosecution regarding recovery of MO1 and therefore the prosecution had succeeded in proving strong circumstances pointing to the involvement of the accused in the said crime. 11 Crl.A. No. 2061 of 2010 11. While evaluating the rival contentions, we take note of the settled legal precedents in which it is held that, recovery by itself is a weak piece of evidence and a conviction based solely on the recovery alone can be sustained only if such recovery is free from any sort of infirmities and only if the same would point out towards guilt of the accused alone, without there being possibility of any other hypothesis. In the case at hand, there is absolutely no direct evidence available. The infirmities with respect to the alleged recovery of MO1 gold chain, especially the manifest fabrications contained in Ext.P4 ledger, as well as the discrepancy with respect to the time of recovery would persuade us to hold that much reliance cannot be placed on the recovery of MO1 gold chain. Further, we notice that, Ext.P5(a) disclosure contains inculpatory statements which will be hit by Section 25 of the Indian Evidence Act, which remains not exempted under Section 27. Since we are of the opinion that the alleged recovery of MO1 gold chain is not free from infirmities, the presumption available under Section 114 cannot be extended to sustain guilt against the appellant. Even though learned special Public Prosecutor had cited a decision of this Court in **Palan v. State (1973 KLT 886)** the ruling contained therein is of no use to support the drawing of any presumption under Section 114, on 12 ## Crl.A. No. 2061 of 2010 the facts of the case at hand. With respect to recovery of MO2 weapon, as already observed, the recovery itself is not proved beyond any shadow of doubt. Further there is no identification of whatsoever nature with respect to usage of the said weapon in the commission of the offence of murder. The chemical examination report would also discard the prosecution version that MO2 is the weapon used in commission of the offence. 12. At this juncture, we may have a quick scan to the conclusions arrived by the trial court while convicting the accused. The court below observed that, there was identification of MO2 chopper by PW4 as the weapon in the possession of the accused when he was attacked sometime before Janaki was found dead. But it is to be noted that the testimony of PW4 is only to the effect that the accused had wrongfully confined him and given him a beat. His testimony is that he had seen MO1 in the plastic bag which the accused was possessing, is only an improvement from the statement given by him to the investigating agency. The learned Sessions Judge observed that, the deceased was found well-dressed wearing ornaments, foot wears and had an umbrella with her. It is mentioned that the above aspects would suggest that she was not going to do any manual work. So there was no chance for her to carry any implement like a chopper and therefore it is 13 Crl.A. No. 2061 of 2010 quite possible that the deceased was attacked with MO3. But the investigating officer might have happened to believe that it was with MO2, since the same was recovered on the basis of information given by the accused. The court below observed that, all such informations given by the accused while in custody need not be true and a cunning accused could have deceived the police by leading to such other objects other than that was really used as the weapon for committing the offence. Evidently the investigation of PW14 was not really up to the mark since he did not venture to cross check whether MO2 was really used to offend the deceased. 13. We are constrained to observe that, the findings rendered by the trial court mentioned as above are not supported by any evidence available on record and it is a guess work made by the learned Sessions Judge. Based on those observations itself it ought to have been held that, the prosecution had failed in proving guilt of the accused beyond any shadow of doubt. The recovery of MO2 will become a totally non acceptable piece of evidence. Further finding of the court below was that, the accused had superficial injuries on his body and that he failed to explain how such injuries were suffered. It is to be noted that, apart from the contents of Ext.D3 'Inspection Memo', the prosecution has not brought out 14 Crl.A. No. 2061 of 2010 any evidence that the accused had sustained any injuries. The court below further observed that, PW4 was attacked by the accused sometime before the deceased was found dead and that the testimony of PW4 is to the effect that he had contacted the deceased and informed about the incident. The court inferred that the deceased would have moved on the way to meet PW4 and therefore the entire sequence of events would only point out to the guilt of the accused. As we have already pointed out, the observations in this regard cannot even be termed as assumptions or presumptions derived out of any evidence on record, but are only guess work made by the learned Sessions Judge. We are of the considered opinion that a person cannot be convicted based on any such guess work, without support of any evidence adduced during the trial. 14. Based on the above discussions, we have no hesitation to hold that the prosecution had not succeeded in proving the guilt of the accused through any convincing evidence connecting him with the occurrence. The benefit of doubt need to be extended to the appellant/accused. Hence we have no hesitation to set aside the conviction and sentence imposed by the trial court. 15 In the result, the above Crl.Appeal is hereby allowed. The conviction and sentence imposed against the appellant by 15 Crl.A. No. 2061 of 2010 the II Additional Sessions Court, Palakkad in S.C.112 of 2008 is hereby set aside. The appellant/accused, namely Surendran @ Soori, S/o Balakrishnan, Chanakakundu Veedu, Thadukkassery, Keralasseri, is under confinement undergoing the sentence. He is directed to be set at liberty forthwith, if his continued confinement is not required in connection with any other case. The Registry is directed to forward the gist of the judgment to the Superintendent of the jail concerned. sd/- ## **C.K.ABDUL REHIM Judge** sd/- **A.M.BABU Judge** Pmn/sks/mrcs/