Valiyavalappil Afeel and Ettol Muhammed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 3[RD] DAY OF APRIL 2024 / 14TH CHAITHRA, 1946 CRL.APPEAL NO. 1011 OF 2011** **AGAINST THE JUDGMENT DATED 07.06.2011 IN SC NO.1351 OF 2005 OF THE ADDITIONAL SESSIONS COURT (ADHOC-II),** ## **THALASSERY** ## **APPELLANTS/ACCUSED:** - **1 VALIYAVALAPPIL AFEEL S/O. ABOOBACKER, VALIYAVALAPPIL HOUSE, MATTOOL AMSOM, THEKKUMBADU.** - **2 ETTOL MUHAMMED, AGED 46 YEARS S/O. ABDULLA, ETTOL HOUSE, MATTOOL AMSOM,, MATTOOL CENTRAL, SIDDIKKAVAD.** **BY ADVS. SRI.PRASUN.S SRI.PAUL MATHEW PERUMPILLIL** ## **RESPONDENT/COMPLAINANT & STATE:** **STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SMT.PUSHPALATHA M.K., SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Cr.Appeal No.1011 of 2011 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.Appeal No.1011 of 2011 ----------------------------------------------------------Dated this the 3[rd] day of April, 2024** ## **JUDGMENT** The appellants were the accused in S.C.No.1351 of 2005 on the files of the Court of Sessions, Thalassery. The Additional Sessions Judge (Adhoc-II), Thalassery tried them on the charge punishable under Sections 341, 302, 201 read with Section 34 of the Indian Penal Code, 1860. They were, however, convicted as per the judgment dated 07.06.2011 for the offences under Sections 341, 304 Part I and 201 read with Section 34 of the IPC. The said judgment of conviction and the consequential order of sentence are challenged in this appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973 (Code). 2. PW14, the Circle Inspector of Police, Valapattanam filed the final report with the following allegations: At about 00.30 hours on 29.08.2004, the appellants in furtherance of their common intention to cause death of 3 Cr.Appeal No.1011 of 2011 Sri.Rashid, wrongfully restrained him and committed his death. The 1st appellant is the brother and 2nd appellant is the brother-in-law of the deceased. While the 2nd appellant forcibly held the deceased, the 1st appellant stabbed him using MO1 knife at his chest, abdomen and back. Fatal injuries were thereby inflicted. Sri.Rashid succumbed to the injuries on the same day. 3. The charge framed against the appellants was denied by them. The prosecution has examined PWs.1 to 14 and marked Exts.P1 to P19. MOs.1 to 6 were identified. No defence evidence was let in. The trial court, after considering the evidence, found that although there was no direct evidence to implicate the appellants with the crime, the circumstances, such as subsequent conduct of the appellants, recovery of MO1 knife under Section 27 of the Evidence Act, 1872 and the report of the scientific examination established the guilt of the appellants beyond doubt. Accordingly, the trial court convicted and sentenced them. 4 Cr.Appeal No.1011 of 2011 4. Heard the learned counsel for the appellants and the learned Senior Public Prosecutor. 5. This is a case where direct evidence to prove the incident eluded. The incident was taken place inside the house of the deceased. Besides he, PWs.1 and 2, his parents, PWs.3 to 5, his sisters and a few others were residing there. The prosecution has cited PWs.1 to 5 as occurrence witnesses. They were expected to have seen the incident either wholly or on part. But none of them deposed before the court having seen even a part of the incident. Their evidence would help to prove only that the deceased and the appellants were in that house on the fatal day. Nothing more that helps to prove the charge levelled against the appellants is deposed to by the said witnesses. All of them were cross-examined by the Public Prosecutor at length. They resiled from the statements given in the police concerning the occurrence. They stated in police that an altercation between the deceased and the 1st accused took place and that had triggered to the incident of hacking the deceased to death. The allegation of the prosecution that 5 Cr.Appeal No.1011 of 2011 the 1st appellant stabbed and the 2nd appellant caught hold of the deceased were stated by most of the witnesses to the police, but they resiled from those versions while deposing in court. Therefore, no direct evidence in order to prove the incident has come forth. The prosecution can rely only on the circumstances brought on record to prove the charge. 6. The fact that Sri.Rashid died due to the injuries sustained in the night intervening 28.08.2004 and 29.08.2004 is indisputable. Ext.P2 is the inquest report. Ext.P4 is the autopsy report. The witness who gave the F.I.statement, Ext.P1 could not be examined as he was abroad. However, from Ext.P11 and consequential registration of the crime as per Ext.P11(a), the fact that death of Sri.Rashid was reported before the police at about 7.30 p.m. on 29.08.2004 is proved. From Ext.P2 inquest report and Ext.P4 postmortem certificate both took place on 29.08.2004 itself. The time of death and cause of death are clearly established. PW9 deposed in court substantiating the report in Ext.P2. The definite opinion tendered by PW9 is that the death was due to the stab 6 Cr.Appeal No.1011 of 2011 injuries sustained by the deceased. From the narration in Ext.P2 inquest report, Ext.P4 autopsy report and the oral testimony of PW9, it can well be held that as a result of the injuries sustained in the night intervening 28.08.2004 and 29.08.2004, Sri.Rashid died. This fact has been substantiated by the oral testimonies of PWs.1 to 5 also. 7. The learned Public Prosecutor pointed out three circumstances, essentially, to prove that the appellants were the culprits, which are:- (i) the deceased and the appellants were seen together last; (ii) the subsequent conduct of the appellants that despite the death of brother/brother-in-law, they went for their avocations on the morning and did not take any steps to take the injured to the hospital; and (iii) recovery of MO1 knife, based on the information revealed by the 1st appellant, which is relevant under Section 27 of the Evidence Act. 8. PW1, the mother of the deceased, deposed that apart from her, PWs.2 to 4 and other members of the family, including the deceased and appellants, were residing in the 7 Cr.Appeal No.1011 of 2011 very same house. When all those persons were residing in the same house and the incident admittedly had occurred inside in the house, the theory of last seen together cannot be invoked in order to implicate the appellants to the crime. 9. The subsequent conduct of an accused is relevant under Section 8 of the Evidence Act. But such subsequent conduct should be of such a nature that the same either influences or is influenced by any fact in issue or relevant fact. The subsequent conduct pointed out as relevant by the learned Senior Public Prosecutor is that the appellants went for their avocation on the next day although their brother/brother-in-law was lying dead. Also, it is pointed out that the appellants did not bother to take the injured to the hospital or to see that the formalities following his death are done. That may be termed as an unusual behaviour on the part of the brother/brother-in-law. But that does not have any influence on the fact in issue and therefore the same cannot be a 'conduct' relevant under Section 8 of the Evidence Act for being found guilty for causing death of the deceased. 8 Cr.Appeal No.1011 of 2011 10. PW13 is the investigating officer. He deposed that on 29.08.2004 he had arrested the 1st appellant. Ext.P15 is the arrest memo and Ext.P17 is the inspection memo. It is his version that while in his custody the 1st appellant gave the statement that he kept the knife in the roof of a thatched shed near his house and he could show the place and retrieve the knife if he was taken to that place. It was on the basis of that statement, which was marked as Ext.P19, MO1 was recovered by PW13. Ext.P3 is the mahazar for the seizure. Although the witness to the mahazar was cited as PW8, he did not support the case of the prosecution. He denied having witnessed such a recovery. However, the oral testimony of PW13 in regard to the said recovery stands proved. I find no reason to disbelieve PW13. 11. The learned counsel for the appellants pointed out that there is no reference regarding existence of such a thatched shed in Ext.P10, the site plan prepared by PW11, the Village Officer. When PW11 deposed before the court that all the structures available in the vicinity are included in the plan, 9 Cr.Appeal No.1011 of 2011 but such a thatched shed does not find a place in the plan, credibility regarding his evidence loses. I am unable to accept the said contentions since there is clear reference in Ext.P1 scene mahazar regarding existence of such a thatched shed. PW11 on account of his inadvertence would not have added that shed in Ext.P10, which was prepared essentially on the basis of Ext.P1 scene mahazar. Ext.P1 the contemporaneous document prepared by PW13 while inspecting the place of occurrence on 29.08.2004 contains mention about such a shed. There cannot be any doubt about existence of such a shed. Viewed so, the version of PW13 that the 1 st appellant led to such a thatched shed and based on his statement recovery of MO1 could be effected can be believed. 12. The learned counsel for the appellants would submit that there is discrepancy with respect to the size of the knife as described in Ext.P3 and the one produced before the court. PW9, the Doctor, who examined was asked to measure the dimensions of MO1 knife. After measurement, he deposed about the length and width of the knife. There is difference of 10 Cr.Appeal No.1011 of 2011 0.2 cms. in the width of knife. I do not think that the said discrepancy, which is so trivial, demolishes the evidence of PW13 regarding the recovery. 13. The viscera and samples collected from the dead body of Sri.Rashid were sent for chemical analysis. Ext.P6 is the report. Similarly, MO1 knife and dress materials collected from the dead body were sent for chemical examination. Ext.P9 is the report. From this report, it is evident that the blood group of the deceased was 'B' and the knife was strained with B group blood. That may enable an inference that the blood of the same blood group of the deceased was detected in MO1 knife. From the above, a further inference possible is that MO1 knife was in the possession of the 1 st appellant after the incident and that the blood of the same group of the deceased was found in the knife. The question is whether, in the said circumstances of the case, that would help the prosecution to establish the guilt of the appellants. 14. Recovery of MO1 knife, which is relevant under Section 27 of the Evidence Act, helped to have an inference 11 Cr.Appeal No.1011 of 2011 that the 1st appellant at whose instance it was recovered was in possession of the knife after the incident in question. There cannot be a further presumption or inference as to the guilt of the appellants based on that. When the allegation of the prosecution is that it was the 1st appellant, who stabbed and the 2nd appellant enabled stabbing by catching him hold of, the evidence of recovery no way would help the complicity of the 2nd appellant. 15. There were several persons residing in the house. As stated, the last seen together theory cannot therefore be invoked in this case. Only based on the evidence regarding recovery of MO1 at the instance of the 1st appellant, an inference or a presumption that it was the 1st appellant, who stabbed the deceased to death, can be drawn. But such a presumption, in the absence of any other evidence, is insufficient to prove his guilt. 16. It was held in **Malleshappa v. State of Karnataka [(2007) 13 SCC 399]** that the circumstance of last seen together does not by itself lead to an irrevocable 12 Cr.Appeal No.1011 of 2011 conclusion that it is the accused who had committed the crime. The prosecution must come out with something more to establish the connectivity between the accused and the crime. If there is no close proximity between the circumstance of last seen together and the approximate time of death, the evidence of last seen becomes weak. Therefore, it is to be considered how far the other circumstances help the prosecution to establish a complete chain establishing the guilt of the accused. 17. The Apex Court in **Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116]** held that the following must be fulfilled before the case against an accused can be said to be fully established on circumstantial evidence: - "(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. - (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 be of a conclusive nature and tendency - (4) they should exclude every possible hypothesis except the 13 Cr.Appeal No.1011 of 2011 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." 18. A three-Judge Bench of the Apex Court after referring to the earlier decisions on the point right from **Hanumant Govind Nargundkar and another v. State of Madhya Pradesh [AIR 1952 SC 343]** held in **Munikrishna @ Krishna v. State by Ulsoor PS [2022 SCC OnLine SC 1449]** that in a case where circumstantial evidence is relied on, the chain of evidence must be complete and the conclusion which is arrived after examining the chain of evidence must point towards the culpability of the accused and not to any other conclusion. It was also held that in a case of circumstantial evidence, the court has to scrutinize each and every circumstantial possibility, which is placed before it in the form of evidence and the evidence must point towards only one conclusion, which is the guilt of the accused. Therefore, the evidence on record should prove 14 Cr.Appeal No.1011 of 2011 beyond doubt that the proven circumstances lead to the only inference that the appellant had committed the offence. 19. The only circumstance proved by the prosecution is recovery of MO1 based on the statement of the 1st appellant. As pointed out above, the said circumstance does not lead to an inference about his criminality or that of the 2 nd appellant. The irresistible conclusion shall be that the prosecution failed to prove beyond doubt that the appellants were the persons, who caused the death of Sri.Rashid. The benefit of doubt necessarily has to be extended to the appellants. Therefore, the conviction of the appellants by the trial court is liable to be set aside. Accordingly, the appeal is allowed. On setting aside the conviction and sentence as per the impugned judgment dated 07.06.2011 in S.C.No.1351 of 2005, the appellants are acquitted. The appellants are set at liberty. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr