Vinayan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH MONDAY, THE 22[ND] DAY OF NOVEMBER 2021 / 1ST AGRAHAYANA, 1943 CRL.A NO. 1539 OF 2006** **AGAINST THE JUDGMENT IN SC 1799/2001 OF II ADDITIONAL SESSIONS COURT, THIRUVANANTHAPURAM CP 34/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II,** ## **ATTINGAL** ## **APPELLANT/ACCUSED:** VINAYAN, S/O KRISHNAN, KRISHNAVILASAM VEEDU, MUKKOLAKKAL,, VAKKOLATHUMURI, ATTIPRA VILLAGE, TRIVANDRUM, DISTRICT. BY ADVS. SRI.SALISH ARAVINDAKSHAN SRI.B.RAMAN PILLAI SR. ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA. REPRESENTED THE CIRCLE INSPECTOR OF POLICE, KAZHAKOOTTAM. BY ADV.PUBLIC PROSECUTOR SRI.SANAL P.RAJ THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.1539/2006 ## -:2:- ## J U D G M E N T Dated this the 22[nd ] day of November, 2021 This appeal has been filed by the accused in SC No.1799/2001 on the file of the II[nd] Additional Sessions Court, Thiruvananthapuram against the judgment dated 13/7/2006 convicting him u/s 304 Part II of IPC. 2. The prosecution case in short is that on 29/1/2001 at 7.45 p.m at a place in the thodu i.e., 48 metres south east of House No.AP 8/19 in Pallippuram Village, the accused forcibly caught hold of the neck of the deceased Aji Kumar and pushed him into the water and kicked him and by this act, Aji Kumar died by drowning. 3. On 30/1/2001 at 7.30 a.m. one Mukundan, a local panchayat member, went to Mangalapuram police station and informed that one person was found dead at a place in Pallippuram Karichara thodu. His statement was recorded which was marked as Ext.P15. On the basis of the said statement, PW11, ASI of Police, Mangalapuram Police Station, registered FIR Crl.Appeal No.1539/2006 -:3:- u/s 174 of Cr.P.C. The FIR was marked as Ext.P14. He took up the investigation, went to the scene of occurrence and conducted inquest on the body of the deceased. Ext.P16 is the inquest report. He seized the dresses, bangle and watch worn by the deceased (MO1 to MO4). Thereafter, the father of the deceased identified the body as that of the deceased. On the same day, PW7, the Assistant Police Surgeon, Medical College, Thiruvananthapuram conducted autopsy on the body of the deceased. Ext.P10 is the post mortem certificate. PW12, the CI of Police, Kazhakoottam, took up further investigation. During investigation, he found the involvement of the accused in the crime. Thus, he submitted Ext.P17 report at the court arraying the accused as the accused in the crime and incorporating Section 302 of IPC. He questioned the witnesses. PW13, the Circle Inspector of Police, Kazhakoottam took up the investigation from PW12. On 25/4/2001, he arrested the accused. He verified the records and filed charge sheet before the Magistrate. The learned Magistrate after complying with the statutory formalities committed the case to stand trial at the Court of Sessions. 4. The accused appeared at the court below. After Crl.Appeal No.1539/2006 -:4:- hearing both sides, charge was framed against the accused u/s 302 of IPC. The charge was read over and explained to the accused who pleaded not guilty. The prosecution examined PWs 1 to 13 and marked Exts.P1 to P17. On the side of the defence, Exts.D1 to D8 were marked. After trial, the court below found the accused guilty u/s 304 Part II of IPC and he was convicted for the said offence. The accused was sentenced to undergo rigorous imprisonment for three years and to pay a fine of `1,00,000/-, in default to suffer imprisonment for a period of one year. Aggrieved by the said conviction and sentence, the accused preferred this appeal. 5. I have heard Sri.V.Raman Pillai, learned Senior Counsel appearing for the appellant and Sri.Sanal P.Raj, the learned Public Prosecutor. 6. There is no direct evidence to prove the incident. The prosecution case is built up on circumstantial evidence. The learned Senior Counsel appearing for the appellant impeached the finding of the court below on appreciation of circumstantial evidence and resultant finding as to the guilt. The learned Senior Counsel submitted that the circumstances highlighted by the Crl.Appeal No.1539/2006 -:5:- prosecution do not present complete chain of circumstances to warrant the conclusion of the guilt on the accused. There is absolutely nothing to connect the accused with the incident and not even a single circumstance projected by the prosecution stood established, submitted the learned Senior Counsel. The learned Public Prosecutor, on the other hand, supported the findings and verdict handed down by the court below and argued that the prosecution has succeeded in proving the case beyond reasonable doubt. All the links in the chain which are so well connected to one another form a strong chain from which conclusion that the accused had caused the death in the manner alleged by the prosecution is inescapable, contended the learned Public Prosecutor. 7. The deceased was found dead on the morning on 30/1/2001 at 7.30 p.m at Pallipuram Karichara thodu. The body was sent for post mortem examination to PW7, who issued Ext.P10 post mortem certificate. The evidence of PW7 coupled with Ext.P10 would show that the deceased had the ante mortem injuries stated in Ext.P10 post mortem certificate. The doctor could find certain injuries on the body of the deceased. The Crl.Appeal No.1539/2006 -:6:- doctor opined that the death was due to drowning. The doctor, in evidence, deposed that possibility of construction force around the neck contributing to death cannot be ruled out. The evidence of PW7 coupled with Ext.P10 proves that it is a homicide and the death was due to drowning by construction force around the neck of the deceased. 8. The next question is whether there is evidence to show that it was the accused who caused the death of the deceased. As stated already, there is no direct evidence to establish this fact. The prosecution relied on circumstantial evidence to prove the offence. The piece of evidence/circumstances relied on by the prosecution and found in favour by the court below can be enumerated as follows: (i) The evidence of PW2 and PW3 that on the date of the incident in the evening, they saw the accused and the deceased together. (ii) The evidence of PWs2 and 3 that after the incident at Pallippuram hitting the car driven by them against the scooter driven by the accused, they saw the deceased running from the said place and the accused following him with a weapon in his Crl.Appeal No.1539/2006 -:7:- hand. (iii) The evidence of PWs4 and 5 that they saw the accused on the same night at 7.30 p.m with full of blood and water on his body. (iv) There is nothing to show the involvement of any other person other than the accused in the incident. 9. The care and caution with which circumstantial evidence has to be evaluated has been recognised by judicial precedents. It has been consistently held by the Apex Court that where the case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. It is equally settled that the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. The Apex Crl.Appeal No.1539/2006 -:8:- Court in _**State of U.P. v. Ashok Kumar Srivastava**_ (1992 Crl.L.J 1104) pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. In _**Musheer Khan @ Badshah Khan and Another v. State of M.P.**_ (AIR 2010 SC 762), the Apex court took the view that when a murder charge is to be proved solely on the basis of the circumstantial evidence, the presumption of innocence must have a dominant role. Recently, the Apex Court in _**Surendra Kumar and Another v. State of U.P.**_ (AIR Online 2021 SC 238) has held that in the case based on circumstantial evidence, it is necessary to determine whether the available evidence lead only to the conclusion of guilt and exclude all contrary hypothesis. Thus, reminded the law, let me analyse the circumstances. 10. Even according to the prosecution, PW2, PW3, the deceased and brother of PW3 viz., one Suresh Babu attacked the accused at Kulathur on 29/1/2001 at 7.25 p.m. and a crime has been registered against them u/s 307 of IPC as Crime No.41/2001. Ext.D7 is the FIR. The evidence of PWs2 and 3 would show that on Crl.Appeal No.1539/2006 -:9:- the date of the incident in the evening, both of them along with the deceased went in a car to a place called Kulathur and when they reached the place at Kulathur, the accused and another person came in a scooter and hit against their car. As a result of the hit, the accused fell down. They stopped the car. PW2 further deposed that at that time, the deceased got out of the car and he saw the accused proceeding towards the deceased carrying an iron rod in his hand and seeing it, the deceased ran towards the right side. PW3 also deposed in the same line. He added that, after the car hit the scooter, they stopped the car and the accused armed with an iron rod came towards him and the deceased and both of them ran away and he saw the accused following the deceased. This piece of evidence given by PWs 2 and 3 were strongly relied on by the court below as strong circumstance to connect the accused with the incident. First of all, it must be noted that even their evidence would show that they were in inimical terms with the accused. It has also come out in evidence that in the connected case (SC No.410/2002), both of them were arrayed as accused. It is also pertinent to note that in fact, both of them were declared hostile by the prosecution. They Crl.Appeal No.1539/2006 -:10:- did not support the prosecution case. Apart from the evidence given against the accused as stated above, their evidence are full of contradictions and omissions. They did not speak at all in tune with the prosecution version. That apart, the culpable part in their evidence relied on by the prosecution that “ _both of them saw the accused carrying an iron rod in his hand rushing towards the deceased and the deceased thereafter running and the accused following him_ ” is proved as omission. It is no doubt a material omission amounting to vital contradiction. In these circumstances, I am of the view that the court below was not at all justified in relying on the evidence of PWs 2 and 3. 11. Another two circumstances relied on by the court below can be dealt with together. PW4 gave evidence that on the date of the incident at about 7.30 p.m, one person with full of blood and water on his body came to her house and knocked at the door. He was wearing only a shirt. He then asked for a lungie to wear which her son gave. She identified that person as the accused at the court. PW5 gave evidence that he knew the accused and on the date of the incident at 8.00 p.m, he met the accused with full of blood and water on his body on the road side Crl.Appeal No.1539/2006 -:11:- at Pallipuram. The court below found that this is a strong circumstance to connect the accused with the crime because the accused was seen drenched and soaked in blood immediately after the incident by PW4 and PW5. First of all, PW4 gave evidence that the accused was a total stranger to her. She was seeing him for the first time on the date of incident. She, in cross examination, stated that she saw him only for 5 minutes. Then, it is difficult to believe that she identified the accused at the court after a lapse of so many years. That apart, even if the evidence of Pws2 to 5 is believed, that is not sufficient to connect the accused with the crime. The court below, without any further evidence, inferred that since PW4 and PW5 found lot of water on the body of the accused, he might have drowned the deceased into the water. Such inference, without concrete evidence, is impermissible in law. 12. There is no evidence as to the distance from the place where PW2 and PW3 allegedly saw the accused and the deceased last together to the place of incident. There is also no evidence as to the distance from the place where PW4 and PW5 allegedly saw the accused to the place of incident. There is also no Crl.Appeal No.1539/2006 ## -:12:- evidence as to the exact time gap between the time they allegedly saw the accused and the death of the deceased. There are absolutely no other circumstances relied on by the court below to connect the accused with the crime. However, the court below concluded that, in the absence of materials to show the involvement of any other person, by preponderance of probabilities, it has to be presumed that, the accused, who was seen drenched and soaked in blood immediately after the incident, has committed the offence. It is the cardinal principle of criminal jurisprudence that the prosecution has to prove the case beyond reasonable doubt. The proof beyond reasonable doubt is the rule. The proof by preponderance of probability has no place in a criminal trial. 13. It is settled that the motive for the crime is material in a case where it was built up with circumstantial evidence. The Apex Court in _**Sheo Shankar Singh v. State of Jharkhand**_ [(2011) 3 SCC 654] has held that “ _it is well established that there is clear distinction between the case where the prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye witnesses on the other. In the_ Crl.Appeal No.1539/2006 -:13:- _former category of cases, the proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. The proof of motive, however, recedes into the background in cases where the prosecution relies upon eye witness account of the occurrence_ ”. No motive has been alleged or proved by the prosecution in this case. It is also a circumstance against the prosecution. 14. Taking all the circumstances into account, I have no hesitation to come to the conclusion that the prosecution has failed to prove any acceptable chain of circumstantial evidence which points compellingly and conclusively to the guilt of the accused. None of the circumstances relied on by the prosecution have been established by the prosecution by clear and cogent evidence. As stated already, it is trite that in order to sustain conviction, circumstantial evidence must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused, but inconsistent with his innocence. The evidence does not justify the hypothesis of the guilt of the Crl.Appeal No.1539/2006 -:14:- accused. On the contrary, the evidence justifies hypothesis of innocence of the accused. Hence, I hold that the conviction and sentence passed by the court below cannot be sustained. In the result, the appeal is allowed. The accused is found not guilty for the offence charged and he is acquitted. The conviction and sentence passed by the court below are set aside. He shall be set at liberty forthwith. **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** **Rp**