Vipin @ Udayakumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 25TH DAY OF NOVEMBER 2020 / 4TH AGRAHAYANA, 1942** **CRL.A.No.637 OF 2016** **AGAINST THE JUDGMENT IN SC 312/2011 DATED 28-10-2014 OF I ADDITIONAL SESSIONS COURT, PALAKKAD.** **AGAINST THE ORDER IN CP 26/2011 OF JUDICIAL MAGISTRATE OF FIRST CLASS, ALATHUR.** **CRIME NO.141/2010 OF MANGALAM DAM POLICE STATION, PALAKKAD.** **APPELLANT/ACCUSED :** **VIPIN @ UDAYAKUMAR, S/O DEVI, AGED 30 YEARS, NELLIKODE VEEDU, NELLIKODE, VANDAZHI, PALAKKAD DISTRICT.** **BY ADVS.SRI.C.A.CHACKO, SMT.C.M.CHARISMA & SMT.MEGHA K.XAVIER.** ## **RESPONDENT/COMPLAINANT :** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR MS.S L SYLAJA.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.637 of 2016 2 ## A.HARIPRASAD & M.R.ANITHA, J J. -------------------------------------- Crl.Appeal No.637 of 2016 -------------------------------------Dated this the 25th day of November, 2020 ## J U D G M E N T ## A.HARIPRASAD, J Aggrieved by the conviction and sentence imposed by the First Additional Sessions Judge, Palakkad in Sessions Case No.312 of 2011 under Sections 302 and 511 of 376 I.P.C, the sole accused in the above case has preferred this appeal. 2. We heard the learned counsel for appellant and the learned Public prosecutor. 3. Prosecution case, in brief, is that on 02-09-2010 at about 11.30 am, the accused attempted to commit rape on a mentally and physically challenged lady from the bed room of his house and thereafter she was strangulated to death. The learned Magistrate, before whom a final report was Crl.Appeal No.637 of 2016 3 filed on completion of the investigation, committed the case to the Court of Session on finding that this is a case exclusively triable by that court court. After framing a charge, the learned Sessions Judge conducted the trial by examining 19 witnesses and marking 32 documents on the side of prosecution. Material objects are six in number. There is no defence evidence. The court below convicted the appellant for the aforementioned offences. 4. Learned counsel for the appellant strongly contended that the court below did not mention any valid reason for entering a conviction against the appellant. It is pointed out that the appellant was convicted without any reliable evidence to prove the offence based on the alleged circumstantial evidence. Admittedly, no eye witness was examined by the prosecution to establish the guilt of the accused. Per contra, learned Public prosecutor submitted that the trial court has marshalled the evidence correctly and entered the conviction on proper appreciation of evidence. 5. PW1 is a witness to Ext.P1 inquest report. Prosecution case is that Crl.Appeal No.637 of 2016 4 the dead body of the victim was found in the bath room attached to PW12 Raveendran's house. Site plan Ext.P11 would show that the distance between the house of the appellant and the bath room where the dead body was found was only 2.5 metres. Inquest was done on 03-09-2010. Prosecution case is that PW12 Raveendran was the first person, who happened to see the dead body at about 8.30 in the night on 02-09-2010, when he entered the bath room. Till then, the victim was missing and her relatives were scouting in search of her. 6. PW2 is the brother of the victim, who lodged Ext.P2 First Information Statement (F.I.S). He also deposed that on 02-09-2010 at night he found the victim lying dead in the bath room attached to PW12 Reveendran's house. The police registered a case under Section 174 Cr.P.C for unnatural death. It has come out in evidence that the deceased was having disability on the right upper and lower limbs. Apart from that, she was a bit mentally retarded too. 7. PW3 is a witness to Ext.P3 scene mahazar. 8. PW4 is a witness to Ext.P4 mahazar through which MO's 1 and 2 Crl.Appeal No.637 of 2016 5 were recovered. These material objects are the wearing apparels of the accused. 9. PW5 is a person, who has seen the dead body lying in PW12's bath room. 10. PW6 Dr.P.B.Gujaral is the star witness for the prosecution. He conducted autopsy on the dead body and issued Ext.P5 post mortem certificate. The ante-mortem injuries read as follows : - 1. Contusion 2 x 1 x 0.5 cm, on left eyebrow, 2.5 cm outer to midline. 2. Contusion 1 x 1 x 0.2 cm, on right half of lower lip, just outer to midline. 3. Contusion 0.8 x 0.7 x 0.2 cm, on right half of lower lip, just inner to right angle of mouth. 4. Contusion 3 x 2 x 1 cm on right side of face, 3 cm in front of tragus of ear. 5. Contusion 2 x 1 x 1 cm on right side of face, 5 cm outer to right nostril. 6. Contusion 2 x 1.5 x 0.3 cm, on right side of face, 2 cm outer to nostril. Crl.Appeal No.637 of 2016 6 7. Contusion 5 x 4 x 1 cm, on right side of face, just in front of root of ear lobule. 8. Contusion 3 x 3 x 0.5 cm, on inner aspect of right cheek, just outer to right angle of mouth. 9. Contusion 2 x 2 x 0.5 cm, on inner aspect of left half of lower lip, just outer to midline. 10. Contusion 5 x 4 x 1 cm, on left half of front of chin and left side of face, 3 cm outer to midline and 2 cm below left angle of mouth. 11. Contused abrasion 0.3 x 0.2 cm, at lower end of left ear lobule. 12. Contusion 4 x 3 x 1 cm, involving upper 2/3 rd of pinna of left ear in full thickness. 13. Contusion 4 x 2 x 0.5 cm, on upper aspect of right shoulder, 5 cm outer to root of neck. 14. Contusion 3 x 3 x 1 cm, on front of right shoulder, 3 cm below top of shoulder and 12 cm outer to midline. 15. Contusion 5 x 4 x 1 cm, on inner aspect of right upper arm, 8 cm above elbow. 16. Contusion 3 x 2 x 1 cm, on back of right upper arm, 3 cm Crl.Appeal No.637 of 2016 7 above elbow. 17. Multiple contused abrasions over an area of 3 x 1.5 cm on outer aspect of right elbow. 18. Contusion 1.5 x 1 x 0.3 cm, on back of right forearm, 3.5 cm below elbow. 19. Multiple contused abrasions over an area of 7 x 5 cm, on front and outer aspect of right knee. 20. Contusion 2 x 2 x 0.5 cm, on back of right leg, 16 cm below knee. 21. Contusion 4 x 3 x 0.5 cm on back of left hand and, 1.5 cm below wrist. 22. Contusion 3 x 2 x 0.3 cm, on outer aspect of left upper arm, 2 cm below top of shoulder. 23. Contusion 12 x 7 x 2 cm, on front of left chest and shoulder, just outer to midline with upper end at 1 cm above left collar bone. 24. Contusion 11 x 6 x 2 cm, on upper and back aspects of left shoulder, 3.5 cm outer to root of neck. 25. Contusion 12 x 8 x 3 cm, on back of chest just below root of neck. Crl.Appeal No.637 of 2016 8 26. Contusion 5 x 4 x 1 cm on back of chest in midline, 12 cm below root of neck. 27. Contused abrasion 1 x 0.7 cm, on back of right chest, 16 cm below top of shoulder and 3 cm outer to midline. 28. Contusion 4 x 3 x 1 cm, on back of left chest, 11 cm below root of neck and 5 cm outer to midline. 29. Contusion 5 x 3 x 1 cm on back of left chest, 7 cm below collar bone and 11 cm outer to midline. 30. Contusion 4 x 3 x 1 cm on back of left shoulder, 3 cm below top of shoulder and 7 cm outer to midline. 31. Contusion 4 x 4 x 1 cm, on back of abdomen in midline, 12 cm above top of natal cleft. 11. It is the case of the prosecution that police, when came to know that it was a case of homicide, altered the section to 302 and 511 of 376 by filing Ext.P16 report before the Magistrate. PW6 deposed that as instructed by PW18 the Circle Inspector of Police, who investigated the case, police medically examined four persons and conducted potency tests. They were suspects in the case. The accused was one among them. After examination of accused, PW6 Crl.Appeal No.637 of 2016 9 issued Ext.P6 certificate. On examination, it was found that the accused had a contused abrasion of 0.4 x 0.2 cm at the transversely placed on upper aspect of penis in midline, back end of corona. According to PW6, the injury could have happened more than 48 hours and less than 5 days of examination. In Ext.P6, PW6 has recorded the history and alleged cause of injury in the following manner : “Sustained by about noon on Thursday (02-09-10), at his house in a scuffle with a female while he was in a drunken state.” 12. PW6, when deposed before the court, clearly supported the recitals in Ext.P6. PW6 opined that, on examination of the accused, there was nothing to suggest that he was incapable of performing a sexual act. He also opined that the injuries on the corona of his penis would have been caused as mentioned by him. 13. As pointed out by the learned counsel for the appellant, it can be seen from the deposition of PW6 and also from Ext.P6 that the appellant was produced for medical examination as directed by PW18 the Investigating Crl.Appeal No.637 of 2016 10 Officer. In cross-examination, PW6 deposed about the extra judicial confession by the accused that the injuries noted on his genital happened on 02-09-2010 when the accused had a scuffle with a female at his house. 14. Learned Public Prosecutor strongly contended that this extra judicial confession coupled with other medical evidence would establish the guilt of the accused. In answer to this contention, learned counsel for the appellant drew our attention to the fact that in cross-examination, PW6 has deposed that the appellant was produced before him as per the requisition of PW18 the Investigating Officer and the appellant was accompanied by two police officers. It is therefore evident that he did not appear before PW6 as a free citizen. Section 25 of the Indian Evidence Act, 1872 (in short 'Evidence Act') clearly prohibits proof of any confession by an accused person to a police officer. Section 26 of the Evidence Act deals with the confession of an accused in the custody of police officer. It clearly says that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Crl.Appeal No.637 of 2016 11 Magistrate shall be proved against the person making the confession. It is amply clear from the deposition of PW6 that the appellant gave the statement, which the prosecution calls an extra judicial confession, in the presence of the police officer, which is hit by Section 26 of the Evidence Act. 15. Learned counsel for the appellant relying on a Division Bench decision of this Court in Salim v. State of Kerala (2012 (2) K.L.T 66) contended that the confession is bad on this score alone. Reliance is placed on paragraph 33 of the decision, which reads as follows : - “ 33. Undoubtedly, the appellant was arrested by P.W.21. The appellant was sent to P.W.16 by P.W.21 in the custody of police officials. The arrest had already been effected. The consequent detention and custody have not been terminated. There can be no doubt or dispute on the question that the appellant was not a free bird. He could not evidently move about on his own will. In these circumstances, whether there was immediate presence of any police official or not near the appellant, according to us, is Crl.Appeal No.637 of 2016 12 not crucial or determinative. It has got to be held that he who was arrested was in the custody of the police and continued to be under the custody of the police. If that be so, according to us, the language of S.26 makes it crystal clear that a confession made by him in the custody of the police officer cannot be proved against the appellant. We need not advert to the decisions which make out a distinction between 'custody' and 'formal arrest', as in this case, the formal arrest has already been made, admittedly. The mere fact that no police official was standing near the appellant at the time when he made the alleged extra judicial confession cannot and shall not detract against the fact that he continued to be in the custody of the police officer. In that view of the matter, it appears to us to be evident that the so-called confession cannot be admitted in evidence.” In the above decision, relevant Supreme Court decisions have been referred to and therefore we are not reiterating all the relevant decisions on this point. 16. It is pointed out by the learned Public Prosecutor that the appellant Crl.Appeal No.637 of 2016 13 was not an accused in the case at the time when he made the alleged confession. But the law on the point is very clear. He was a suspect and was under the surveillance of the police. Constitution Bench decision by the Supreme Court in State of Uttar Pradesh v. Deoman Upadhyaya (AIR 1960 S.C 1125) while considering the scope of Section 27 of the Evidence Act has clearly held that the Section does not predicate a formal accusation against him at the time of making the statement sought to be proved as a condition of its applicability. The same principle applies in the case of Section 26 of the Evidence Act as well. Therefore, we find that in the absence of any other material the conviction based on the testimony of PW6 may be bad in law. As pointed out earlier, there is no direct evidence to show that the accused had committed the murder of the victim or he attempted to rape the victim inside his house. There is no evidence to show that the deceased had ever gone to the house of the appellant. Likewise, there is no evidence to show that the appellant after committing the crime shifted the body to the bath room of PW12 Raveendran. Crl.Appeal No.637 of 2016 14 17. PW7 is the Assistant Director, Biology Regional Forensic Science Laboratory, Thrissur. She collected samples from the crime scene. 18. PW8 deposed that the deceased was a physically and mentally challenged person. 19. PW9 is a witness to Ext.P1 inquest report. 20. PW10 is a sales man in a local toddy shop, where the accused had gone as usual to consume toddy. 21. PW11 is a relative of the deceased, who went in search of the deceased, who had gone missing on 02-09-2010. 22. PW12 is the first person to see the dead body of the deceased at about 8.30 in the night. His testimony will not tend to implicate the accused in the crime. Other witnesses, except PW17, are official witnesses, whose testimony will not show any involvement of the accused in the crime. 23. PW17 is the mother of the deceased. She deposed that the accused was a physically challenged person as her upper and lower limbs on the right Crl.Appeal No.637 of 2016 15 side was deformed. She was having slight mental disorder is also a fact spoken to by this lady. Except the fact that the deceased was missing during the day time of 02-09-2010 and no other reason had been stated by PW17 to implicate the accused. 24. PW18 is the investigating officer. He conducted the investigation and questioned material witnesses. He deposed that the accused attempted to commit suicide on his arrest. Although he had deposed in cross-examination that the accused had gone voluntarily for medical examination, we cannot accept this case in the light of the candid testimony of PW6 showing that the accused was taken by the police for medical examination. 25. Learned Public Prosecutor relying on Ext.P31 contended that the hair samples taken from the neck and chest of the accused were found to be matching with the hairs gathered from the dress materials worn by the deceased. It may be a far fetched imagination if we convict an accused, that too for an offence of murder and attempt to commit rape, merely on the presence of hairs Crl.Appeal No.637 of 2016 16 in the dress materials. Prosecution has not adduced any evidence to show that the victim has gone to the house of the accused and there happened a scuffle as tried to be projected at the time of evidence. There is no material sufficient to establish the circumstances against the accused to rule out any possibility of his innocence in this case. 26. Learned Public Prosecutor relying on Ext.P6 and the chemical analysis report would contend that the accused should be held liable on the ground that wearing apparels of the deceased was smeared with semen and spermatozoa. However, we find no scientific evidence collected to show that the presence of semen and spermatozoa seen in the dress materials of the victim was that of the appellant. If we eschew the confession part from Ext.P6 and the deposition of PW6, we find no material to connect the accused with the crime. Relying on the settled legal principles, we find that the prosecution failed to establish any connection between the accused and crime especially in a case like this which rests only on circumstantial evidence. There is no cogent evidence to Crl.Appeal No.637 of 2016 17 establish all the circumstances against the accused and the circumstances attempted to be proved do not form a proper chain to infer the guilt of the accused. In the result, the appeal is allowed. Conviction and sentence by the First Additional Sessions Judge, Palakkad in Sessions Case No.312 of 2011 imposed on the appellant under Sections 302 and 511 of 376 I.P.C is hereby set aside. He shall be set free forthwith, if not required in connection with any other case. A. HARIPRASAD, JUDGE. M.R.ANITHA, JUDGE amk