Jomon vs State Of Kerala on 9 January, 2025

[Cites 14, Cited by 0]

Kerala High Court

Jomon vs State Of Kerala on 9 January, 2025

The above Death Sentence Reference (DSR) and the Criminal Appeal arise from S.C.No.177 of 2012 on the files of the Court of the Additional Sessions Judge-II, Thodupuzha. There were two accused in the crime from which the above Sessions Case arose. Since the presence of the second accused could not be secured for trial, the first accused was tried and convicted for offences punishable under Sections 302, 376 and 449 of the Indian Penal Code (IPC). Later when the presence of the second accused was secured, he was also tried, convicted and sentenced to death for the aforesaid offences. The criminal appeal is instituted by the second accused challenging his D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 4 :- 2025:KER:1013 conviction and sentence in the case and the DSR is the proceedings initiated for confirmation of the death sentence of the appellant in terms of Section 366(1) of the Code of Criminal Procedure (the Code).

2. The crime which is the subject matter of the case is one in which a young lady and her widowed mother were horrifically murdered after the accused allegedly took turns in raping them. The victims were residing with the infant of the daughter victim in their family house situated in a large extent of property. Their immediate family namely, the brother and husband of the daughter victim were away in their place of employment at the time of the occurrence. At about 05.30 p.m. on 03.12.2007, a neighbour of the victims namely, Sheeja noticed while coming back from work that the infant of the daughter victim was left unattended to at the courtyard of the house of the victims, despite continuous crying. Since Sheeja did not find anybody in the house of the victims then, she took the infant to her house and informed the matter to her mother. Ponnamma, the mother of Sheeja went to the house of the victims forthwith accompanied by some of her neighbours, D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 5 :- 2025:KER:1013 after informing the local police. One of the neighbours, Prakashan who peered inside the house, saw the dead bodies of the victims, one lying on a cot and the other on the floor, in one of the rooms of the house. A crime was registered immediately thereupon by Vandiperiyar Police based on the information furnished by Ponnamma. The investigation in the case revealed that it was the accused who committed the murder of the victims after committing rape on them by taking turns. A final report was accordingly filed in the case.

3. For clarity, both the accused are collectively referred to hereinafter as the accused and individually referred to as the first accused and the appellant respectively. Similarly, for clarity, the elder victim is referred to as the mother victim and the younger victim is referred to as the daughter victim.

4. The accusation against the accused as in the final report is that in furtherance of their common intention to commit rape and murder the victims, at about 10 p.m. on 02.12.2007, the accused trespassed into the property of the victims, broke open the door of their house, made the daughter victim unconscious by tying her neck with a towel and D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 6 :- 2025:KER:1013 thereafter the first accused committed rape on her and the second accused committed rape on the mother victim. It is also the accusation in the case that later, the first accused committed rape on the mother victim and the appellant committed rape on the daughter victim. It is also the accusation in the case that in the meanwhile, when the daughter victim regained consciousness and attempted to prevent the accused from committing rape on her, they beat the victims repeatedly on their heads with a chopper and an iron rod and in addition, the first accused caused also internal injuries to the victims by striking them on their chests with his knee. It is alleged that the victims succumbed to the injuries caused by the accused.

5. As noted, when the appellant was committed to trial, the Court of Session framed charges against him for the offences punishable under Sections 449, 376 and 302 read with Section 34 of the Indian Penal Code (IPC), to which the appellant pleaded not guilty. The prosecution, thereupon, examined the witnesses on their side as PWs 1 to 26 and proved through them Exts.P1 to P34 documents. MOs 1 to 21 D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 7 :- 2025:KER:1013 are the material objects identified by the witnesses. Ext.D1 is the wound certificate of the appellant produced by the prosecution, but marked at the instance of the appellant. After closing the evidence, when the circumstances appearing against the accused in the evidence were put to the appellant, he denied the same. The appellant has also filed an additional statement taking the stand that the first accused left the company of the appellant on the afternoon of 02.12.2007 itself; that on 06.12.2007, the police caused the appellant to hold on two empty bottles; that he did not hand over any articles to the police and that the evidence produced against him are all false and fabricated. The relevant part of the additional statement reads thus:

"02.12.2007 ത യത ഞ യറ ഴ xxx xxx ഉചഭകണ എന വ ട ൽ കഴ ച ട അന ദ വസ ഉചകഴ ഞ ഏകനദശ 2.30 മണ നയ ന" ര ന$നൻ എന വടൽ ന അയ ളന" അമയന" അന$ത 57 -൦ മമല ൽ ത മസ ക നറ സയന" വ ട നലക ന1 കകയ നണന 1റഞ ബ ക മദ7മ"ങ യ നബ ട ലമ യ ന1 യ . 1 " ഞ ൻ " ര ന$നനന ക ണ ത 05.12.2007 ത യത ര ത വണ ന=ര യ ർ ന1 ല സ ന?ഷന ൽ വച ണ. എന 05.12.2007 ത യത ര ത ഏകനദശ 10.30 മണ നയ ന" എന വടൽ വ വണ ന=ര യ ർ SI നA ദ7 നAയ ന നണ 1റഞ വണ ന=ര യ ർ ന1 ല സ ന?ഷന നലക കട നക ണന1 യ അവ ന" വച എന ന1 ല സക ർ കനറ മർദ ച 57 -൦ മമല ലണ യ രണന1രുന" മരണത ൽ എന ക 1ങണ എ സമത കണ എ അവർ 1റഞ. 1നക ഞ ൻ നAയ ത ക ര7മ യത ന ൽ സമത ച ല. 6.12.2007 ത യത എന നക ണ രണ ക ല യ യ മദ7ക= കള ല രണ 1 ലകകഷണങള ല ന ർബന ച എന മകനക ണ 1 " = ച, ക" നത കനറ ക"ല സകള ല ഇനതല നAയ ചത സർക ൽ ഇൻസന1കർ ആണ . ഞ ൻ ന1 ല സ ൽ ഒരു D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 8 :- 2025:KER:1013 കറസമതനമ ഴ യ നൽക യ ട ല. ഞ ൻ ഒരു നത ണ സ ധനവ എടത ന1 ല സ ന ഹ $ര ക നക ടത ട ല. എന നകത നര ഹ $ര ക യ ര ക നത ണ വസകള അത നന "നബന ച ടള നരഖകള ന1 ല സ കത7മമ യ എന നകത നര കളനതള വ ഉണ ക യ ടളത ണ. 1 ആ പത ര ന$നൻ ഈ നകസ ൽ ഉൾന=ട ട ഉനണങ ൽ അത ന ഞ ൻ ഒര കല ഉതരവ ദ യല. ഞ ൻ ഈ നകസ ൽ ത ർത ന ര1ര ധ യ ണ."

As the court did not find the case to be one fit for acquittal under Section 232 of the Code, the appellant was called upon to enter on his defence. The appellant, however, chose not to adduce any evidence. Thereupon, on an evaluation of the matters before it, the Court of Session found that the appellant trespassed into the house of the victims along with the first accused and murdered them after ravishing them, in furtherance of the common intention shared by them and thereby committed the offences punishable under Sections 449, 376 an 302 read with Section 34 IPC. Consequent on the finding, the appellant was convicted for the said offences and sentenced, among others, to death for the offence punishable under Section 302 IPC. The appellant is deeply aggrieved by his conviction and sentence, hence this appeal.

6. Heard the learned Senior Counsel for the appellant as also the learned Special Public Prosecutor. D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 9 :- 2025:KER:1013

7. The learned Senior Counsel for the appellant made elaborate arguments. We are not referring to the arguments here, as we propose to deal with the same elaborately in the course of our discussion. Suffice it to say, the essence of the arguments was that the prosecution has miserably failed in proving the guilt of the appellant beyond reasonable doubt. The learned Special Public Prosecutor refuted each and every argument made by the learned Senior Counsel and supported the impugned judgment, pointing out that the evidence let in would establish beyond reasonable doubt, the charges levelled against the appellant. The learned Special Public Prosecutor has also asserted that the sentence of death awarded to the appellant is warranted on the proved facts.

8. In the light of the submissions made by the learned counsel for the parties, the point that falls for consideration is whether the conviction of the appellant for the offences punishable under Sections 449, 376 and 302 IPC and the sentences passed against him, are sustainable in law.

9. In order to consider the point, it is necessary to D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 10 :- 2025:KER:1013 scrutinise the relevant evidence. PW1 is Ponnamma who lodged Ext.P1 First Information Statement. PW1 affirmed the said fact in her evidence. PW5 is Sheeja, the daughter of PW1. PW5 deposed that at about 05.30 p.m. on 03.12.2007, while returning from work, she noticed that the infant of the daughter victim was left unattended to, despite continuous crying and she informed the matter to PW1, after taking the child to their house. PW3 is the husband of the daughter victim. In cross-examination, it was stated by PW3 that in the evening on the day prior to the date of occurrence, the daughter victim went out to sell pepper. PW23 is the brother of the daughter victim. PW23 deposed that he reached home in the early morning hours on 04.12.2007. According to PW23, when he saw the body of his sister, the clothes worn by her then were seen pulled up to her waist.

10. PW6 is a lady who knew the accused. The evidence of PW6 was that by about 8.15 p.m. on 02.12.2007, while returning from the place, 'Periyar', she went to the shop of one Amalraj near her house for tea. It was her evidence that while going back home after tea, she saw the accused on the D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 11 :- 2025:KER:1013 street when she flashed her torch and that when she proceeded thereupon to her house, she felt that she was being followed. It was her version that having noticed that she was being followed, she immediately entered inside her house and closed the door. It was deposed by PW6 that she then heard the sound of footsteps in her courtyard and when she enquired "ആര ആര ", there was no response. It was also deposed by PW6 that she then ran to the shop of Amalraj through the back door of her house and informed him about the footsteps in the courtyard of her house and sat in his shop until 11 p.m. and that thereafter, the wife of Amalraj dropped her back to her house. In cross-examination, it was clarified by PW6 that on reaching her house, she changed her clothes, cleaned the traditional lamp and it was while taking rest thereafter that she heard footsteps outside her house. When PW6 was asked in cross-examination as to whether she saw the accused in the courtyard of her house, she answered in the negative. Further, it was clarified by PW6 in cross-examination that she resides very close to the bus stop as also the shop of Amalraj and that the appellant is also a person residing close to the shop of D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 12 :- 2025:KER:1013 Amalraj. In re-examination, it was stated by PW6 that it was unnecessary for the appellant to pass by her house in order to reach his own house.

11. PW7 is an auto driver. PW7 is a person who knew the appellant. PW7 deposed that at about 8 p.m. on 02.12.2007, the appellant and another person hired his auto and that he dropped them near a granite quarry; that the said persons were drunk at the relevant time and that the appellant was wearing then a green checkered shirt. In cross- examination, when it was put to PW7 that he does not appear to have stated to the police about the colour of the shirt the appellant was wearing while travelling in the auto, PW7 asserted that he made such a statement to the police.

12. PW9 is Amalraj referred to by PW6. As noted, he is the person who runs a shop near the house of PW6. PW9 deposed that at about 12.15 p.m. on 02.12.2007, he saw the appellant alighting from the bus " ശരണണ" near his shop; that when the first accused came to the shop after sometime, the appellant frisked around the waist of the first accused requiring the latter to disclose to him as to whether he was carrying D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 13 :- 2025:KER:1013 liquor and that on finding a liquor bottle in the waist of the first accused, the appellant requested PW9 for two glasses as also water and when PW9 gave the same to him, the appellant and the first accused consumed that liquor in his shop. It was deposed by PW9 that after sometime, the wife and children of the appellant came there and required the appellant to come home for lunch and the appellant then required the first accused also to come to his house for lunch and all of them, thereupon went to the house of the appellant. It was deposed by PW9 that at about 8.45 p.m. on that day, PW6 came to his shop for tea and while PW6 was returning to her house, he saw the accused who were sitting on the culvert near his shop then, following PW6. It was deposed by PW9 that by about 9.30 p.m. on the same day, PW6 came to his shop again and informed him that somebody threw a stone at her house. It was deposed by PW9 that after sometime, the wife of PW9 dropped PW6 to her house. In cross-examination, when PW9 was asked as to whether he gave a statement to the police that " ന$ നമ ന ര ന$നന അവരുന" വട നലക ഊണ കഴ ക ൻ ന1 യനശഷ ഞ ൻ ഊണകഴ ഞ തമഴ ന ട നലയ ന1 യ . 1 " നA വ ഴ ഇ നല ര വനല ആണ വ ത അന= ഴ ണ xxx വ D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 14 :- 2025:KER:1013 അവരുന" അമയ വട ൽ മര ച ക "ക ത അറ ഞ", PW9 affirmed that he gave such a statement and then clarified voluntarily that he went to Tamil Nadu only on the night of 02.12.2007. When it was put to PW9 that he does not appear to have stated to the police that he went to Tamil Nadu only in the night on that day, PW9 asserted that he made such a statement to the police. Similarly, when it was put to PW9 that he does not appear to have stated to the police that while PW6 was returning to her house from his shop, the accused were sitting on the culvert near his shop and then followed PW6, it was asserted by PW9 that he made such a statement as well. Similarly, when it was put to PW9 that he does not appear to have stated to the police that PW6 came back to his shop again on the same day at about 9.30 p.m. and informed him that somebody threw a stone at her house, he asserted that he made such a statement.

13. PW18 was the doctor who conducted postmortem examination on the body of the mother victim and issued Ext.P21 postmortem certificate. The following were the ante-mortem injuries noted by PW18 on her body at the time D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 15 :- 2025:KER:1013 of postmortem examination:

"1. Chop wound on front of head 7.5 x 2 cm transverse, 6cm above root of nose. The inner, right end, 2 cm right to midline, bone deep.

2. Chop wound on top of head on right side 6.5cm transverse, 2.5cm back to right end of injury No.1 bone deep.

3. Chop wound on right parietal region 4 x 1.5cm bone deep.

4. Chop wound on top of head 5x1cm front to back direction, bone deep front end and 2cm behind injury No.1.

5. Chop wound on left side of top of head 6x1cm bone deep, transverse, 4cm back to injury No.4. Scalp contusion on frontal region and right temporal region over an area of 15 x 15cm. Depressed comminuted fracture of frontal, parietal and right temporal bone over an area of 13x6cm transverse. The under surface of left temporo occipital region showed a contusion 4.5x2.5x0.5cm. Subdural and subarachnoid haemorrhages seen on both cerebral and cerebellar hemispheres. The brain congested and moderate flattening of gyri noticed.

6. Contusion front of chest on mid region 15x10cm transverse with fracture of sternum at 4th rib region, with fracture of right 3rd, 4th, 5th and 6th ribs along mid clavicular line."

The opinion of PW18 as to the cause of death of the mother victim was that death was due to chop wounds sustained to the head. It was also opined by PW18 that Injuries 1 to 5 sustained by the mother victim could be caused with a chopper and Injury 6 could be caused by forceful stamping. PW20 was D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 16 :- 2025:KER:1013 the doctor who conducted the postmortem examination on the daughter victim and issued Ext.P26 postmortem certificate. The following were the ante-mortem injuries noted by PW20 on her body at the time of post-mortem examination :

"1. Incised wound 3.2x0.5x0.5cm obliquely placed on the left side of top of head and forehead, with its lower inner end 3.2cm outer to midline and 5cm above eyebrow.

2. Incised wound 3x1x0.5cm obliquely placed on the left side of head with its lower outer end 4cm above top of ear. Underneath temporalis muscle was contused.

3. Contusion 14x9x0.8cm on the back of head and neck just behind the root of ear. The upper extend at the level of top of ear.

4. Incised wound 5x1x0.5cm obliquely placed on the back of head across the midline the upper right end 3cm above occiput and 1cm outer to midline.

5. Incised wound 3x0.5x0.5cm obliquely placed on the left side of head, its upper outer end 3cm outer to midline and 4cm above occiput.

6. Incised wound 3.5x1cm, bone deep, obliquely placed on the left side of forehead and eyebrow, with its upper inner end 2.5cm outer to midline and 0.5cm above eyebrow. Underneath the frontal bone was seen fractured and fragmented. The fracture was seen extending backwards as fissured fracture for a length of 14cm through the anterior, middle and posterior cranial fossae on the left side.

Brain showed flattening of gyri, narrowing of sulci, iffuse subdural, subarachnoid and intraventricular haemorrhages.

7. Multiple small abrasions over an area 5x3cm on the D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 17 :- 2025:KER:1013 right side of face 2cm outer end 1cm below right angle of mouth.

8. Multiple abrasions over an area 8x4cm on the front of neck in the middle 8.5cm behind chin.

9. Pressure abrasions 19cm long, obliquely placed on the front and sides of neck, being 5cm below mastoid process (0.3cm broad), 4cm below right ear (0.3cm broad), 5.5cm behind chin (0.3cm broad) and 9cm below left ear (0.3cm broad).

Flap dissection of the neck was done in a bloodless field. Subcutaneous tissue was normal. The sternomastoid muscle, sternohyoid muscle and sternothyroid muscle of left side were contused. Haemorrhages seen inside the larynx. Other muscles, bones, cartilages and vessels of the neck were seen intact and normal.

10. Contused abrasion 5.5x3cm on the right side of chest 5cm outer to midline and just below collar bone.

11. Multiple contusions of sizes 0.5x0.3cm to 6x3cm muscle deep over an area 19x17cm on the front of chest, more towards left side, the right extend was 6cm outer to midline and 7.5cm below collar bone. II to VI ribs on both sides were fractured just outer to costochondral junction. The sternum was seen fractured between the 3 rd and IVth pieces. Contusion 10x5x1cm seen on the front of pericardium. Heart showed contusions (1) 1x0.5x0.5cm on the front aspect of inter ventricular septum and (2) 2x1x1cm at the apex. Lungs showed contusion 7x2x1cm each at the back aspect near hilum. Chest cavities contained 200 ml fluid blood in each.

12. Contusion 5x3x1.5cm on the front of abdomen 13cm above pubic symphysis, mesentry showed contusions (1) 5x3x0.3cm and (2) 5x4x0.3cm with superficial laceration at 50cm and 70cm away from ileocacoal junction respectively. Laceration 5x2x1.5cm seen on the under aspect of left lob of D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 18 :- 2025:KER:1013 liver. Abdominal cavity contained 500ml fluid blood.

13. Abrasion 0.8x0.5cm on the back of right knee at its lower part.

14. Contusion 3x2x0.5cm on the back of left wrist.

15. Contusion 4x2x0.5cm on the back of left index finger just below its root."

The opinion of PW20 as to the cause of death was that death was due to injuries 1 to 6, 8, 9, 11 and 12. It was also opined by PW20 that Injuries 1, 2 and 4 to 6 could be caused with MO7 chopper and Injury 3 could be caused with MO1 iron pipe and Injuries 8 and 9 could be caused by applying force with a towel. Similarly, it was deposed by PW20 that Injuries 11 and 12 could be caused by kicking and stamping. In cross- examination, it was clarified by PW20 that no external or internal injury was noted at vaginal portion.

14. PW19 was the Sub Inspector of Police who arrested the appellant at 4 p.m. on 06.12.2007 and handed over custody to the investigating officer. PW19 deposed that fact in his evidence. PW26, the police photographer deposed that it was he who took photographs of the chance fingerprints lifted and specimen fingerprints collected in the case. It was clarified by PW26 that the photographs of one of the chance D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 19 :- 2025:KER:1013 fingerprints was taken from a plastic bottle.

15. PW24 was the police officer who conducted the substantial part of the investigation in the case. It was deposed by PW24 that during interrogation, after the arrest of the appellant, he disclosed to him that he has kept a chopper on the boundary wall of the house of one Nassar at the place called "Anpathezhamile" and when the appellant was taken to that place as guided by him, he took out from there MO7 chopper and the same was seized by PW24 as per Ext.P8 mahazar. Ext.P8(a) is the disclosure which led to the recovery of MO7 chopper. Likewise, it was also deposed by PW24 that the appellant also disclosed during interrogation that he has kept in his house the clothes that were worn by him on 02.12.2007 and when he was taken to his house, he took out from there MO8 pants and MO9 shirt and the same were seized by PW24 as per Ext.P9 mahazar. Ext.P9(a) is the disclosure which led to the recovery of the said MOs. It was also deposed by PW24 that he took the fingerprints of the accused and forwarded the same for comparison with the fingerprints collected from the scene of occurrence. In cross-examination, it D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 20 :- 2025:KER:1013 was conceded by PW24 that item 20 in Ext.P28 property list namely, an empty liquor bottle was not produced before the Jurisdictional Magistrate on 06.12.2007 along with the property list and other articles mentioned therein. According to PW24, item 20 which was seized from the house of the victims, was withheld from production before the Jurisdictional Magistrate for the purpose of taking its photographs. It was asserted by PW24 that the said article was later produced before the Jurisdictional Magistrate on 08.12.2007. It was also stated by PW24 that the appellant was arrested before 08.12.2007.

16. As regards the previous statements of the witnesses, it was clarified by PW24 that PW7, the auto driver, did not inform him that the appellant was wearing a green shirt while travelling in his auto. Likewise, it was clarified by PW24 that PW9, the shop owner, did not inform him that he left for Tamil Nadu only on the night of 02.12.2007. Similarly, it was clarified by PW24 that he was not informed by PW9 that PW6 came to his shop for tea at about 8.45 p.m. on 02.12.2007; that when PW6 left his shop, the accused were sitting on the culvert near his shop and that he saw the accused following D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 21 :- 2025:KER:1013 PW6. It was also clarified by PW24 that PW9 did not inform him that PW6 came to his shop again on that day at about 9.30 p.m. and that he was also not informed by PW9 that somebody threw a stone at her house.

17. PW15, the fingerprint expert attached to the District Finger Print Bureau, Idukki, deposed that he inspected the scene of occurrence on 04.12.2007 and collected two chance fingerprints, of which one was not comparable and the other, which was collected from the liquor bottle outside the house matched with the interdigital area of the right palm of the appellant. PW15 identified Exts.P12 and P13 as the photographs of the chance and specimen prints. PW15 was summoned again on a request made by the Public Prosecutor, and when he was examined thereafter, he clarified that it was from MO20 empty liquor bottle that one of the chance prints was collected.

18. PW25 was the police officer who completed the investigation in the case and submitted the final report. It was PW25 who tendered formal proof of Ext.P34 report of the Forensic Science Laboratory. Item 46 in Ext.P34 report is MO7 D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 22 :- 2025:KER:1013 chopper stated to have been recovered based on the information furnished by the appellant. It is recited in the said report that although MO7 chopper contained blood, its origin could not be detected. Item 50 in Ext.P34 is MO8 pants stated to have been recovered based on the information furnished by the appellant. It is stated in the report that although MO8 pants contained human semen, its origin could not be detected. Item 29 in Ext.P34 report is the folded piece of cellophane tape containing the fibre collected from the door of the house of the victims. It is stated in the report that item 29 cellophane tape contained fibres similar to those in MO8 pants.

19. Let us now consider the point. In the absence of any direct evidence, the prosecution attempted to prove its case through circumstantial evidence. It is trite that the following are the principles to be applied while considering the guilt of the accused in cases involving circumstantial evidence:

(i) that the circumstances from which the conclusion of guilt is drawn are fully established,

(ii) that the circumstances shall be of a conclusive nature and tendency, D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 23 :- 2025:KER:1013

(iii) that the facts so established are 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,

(iv) that they should exclude every possible hypothesis except that the accused is guilty, and

(v) that 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.

In the light of the principles aforesaid, let us first determine the circumstances which are proved in the case. As noted, the circumstances shall be of a conclusive nature and tendency and the same shall be fully established . The circumstances of a 'conclusive nature and tendency' means that they shall unequivocally establish the truth of the facts, leaving no reasonable doubt, or alternative explanation and they should have a definite tendency of implicating the accused in the crime.

20. Even though the doctors who conducted the D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 24 :- 2025:KER:1013 postmortem examination on the bodies of the victims did not give any opinion as regards the time of death of the victims, we are of the view that in the light of the unchallenged evidence of PW3 that on the day previous to the date on which he came to know of the occurrence, the daughter victim went out for selling pepper, it could certainly be inferred that the deaths occurred after the daughter victim returned to her house on the evening of 02.12.2007 and before 5.30 p.m. on 03.12.2007 when PW5, the neighbour, saw the infant of the daughter victim left unattended to in the courtyard of the house of the victims.

21. The learned Special Public Prosecutor highlighted the evidence of PW23, brother of the daughter victim, that when he saw the body of the daughter victim for the first time, her clothes were seen pulled upto her waist, to contend that it could be inferred from the said evidence that the victims were subjected to rape by their assailants, before causing their deaths. Even though we are in concurrence with the argument that the positioning of a garment on a deceased individual could be taken into account along with other factors D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 25 :- 2025:KER:1013 for the purpose of considering whether the person concerned was subjected to rape, we do not think that from the positioning of the dress alone, one could come to the definite conclusion that the person concerned was subjected to rape before she was murdered.

22. PW6 is a witness on whose evidence much reliance was placed by the prosecution. Her evidence was that by about 8.15 p.m. on 02.12.2007, she went to the shop of PW9 for tea; that while going back home after tea, she saw the accused on the street and when she proceeded thereupon to her house, she felt as though she is being followed. It was also her evidence that she immediately entered her house and closed the door and that after some time, she heard the sound of footsteps in her courtyard. It was also her evidence that she then ran to the shop of PW9 through the back door of her house and informed PW9 about the said sound. As noticed, even though PW6 stated in her evidence that she saw the accused on the street while returning to her house from the shop of PW9, she was however, not categoric that it was the accused who followed her. What could be inferred from her D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 26 :- 2025:KER:1013 evidence is only that she felt then that she was being followed. We take this view also for the reason that since the area was pitch dark then, PW6 could not have stated, after she passed them, that it was the accused who followed her without looking back at them and she had no case that she looked back at them. In other words, the only inference that could be made from the evidence of PW6 is that the accused were found near the shop of PW9 at about 8.15 p.m. on 02.12.2007. Admittedly, the appellant is a person who was residing close to the shop of PW9 and there is nothing on record to indicate the proximity between the place where PW6, PW9, the victims and the appellant were residing. As such, the presence of the appellant at that place cannot be taken as an incriminating circumstance against him in a case of this nature. Of course, in re- examination, the learned Public Prosecutor made an attempt to bring on record that it was unnecessary for the appellant to be at that place in order to go to his house. We do not think that merely for the reason that the appellant was found at a place deviating from the usual route to his house, the same can be taken as an incriminating circumstance against him. Further, in D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 27 :- 2025:KER:1013 the absence of any evidence establishing the proximity between the place where the accused were seen by PW6 and the crime scene, the evidence tendered by PW6 is not of any use to the prosecution.

23. Likewise, according to us, the evidence tendered by PW7 is also not of any use to the prosecution. As noticed, the evidence of PW7 is only that he dropped the accused near the granite quarry in the locality and that both of them were drunk at the relevant time. We do not find anything incriminating in the said conduct of the accused who were friends and going near the quarry at about 8 p.m., especially when the first accused was a person who was working in that quarry at the relevant time. It is all the more so since the prosecution has no case that the house of the victims is in the vicinity of the said quarry.

24. As in the case of PW6, PW9 is another witness on whose evidence the prosecution places much reliance. As noticed, PW9 is a person who is running a shop near the houses of PW6 and the appellant. The appellant does not dispute the fact that he consumed liquor with the first accused D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 28 :- 2025:KER:1013 at about 12.15 p.m. on 02.12.2007 in the shop of PW9 and that thereafter, they went to his house for lunch together. The evidence tendered by PW9 was that at 8.45 p.m., on that day, PW6 came to his shop for tea and while she was returning to her house, he saw the accused persons who were sitting then on the culvert near his shop, following PW6 and that later, by about 9.30 p.m. PW6 came to his shop again and informed him that somebody threw a stone at her house. As noticed, when it was put to PW9 that he does not appear to have stated to the police that while PW6 was returning from his shop to her house, the accused were sitting on the culvert and that they followed her, it was asserted by PW9 that he made such a statement. Similarly, when it was put to PW9 that he does not appear to have stated to the police that PW6 came back to his shop again on the same day at about 9.30 p.m., PW9 asserted again that he made such a statement also. But, as noticed, the investigating officer who was examined as PW24 clarified in his evidence that the aforesaid assertions made by PW9 are false. In other words, it is not safe to place reliance on that part of the evidence tendered by PW9. Be that as it may, as already D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 29 :- 2025:KER:1013 noticed, during cross-examination, when PW9 was asked as to whether he gave a statement to the police that " ന$ നമ ന ര ന$നന അവരുന" വട നലക ഊണ കഴ ക ൻ ന1 യനശഷ ഞ ൻ ഊണകഴ ഞ തമഴ ന ട നലയ ന1 യ . 1 " നA വ ഴ ഇ നലര വനല ആണ വ ത അന= ഴ ണ xxx വ അവരുന" അമയ വട ൽ മര ച ക "ക ത അറ ഞ ", he affirmed that he gave such a statement. But, PW9 then added that he went to Tamil Nadu only on the night of 02.12.2007. PW24 has clarified in his evidence that PW9 did not state in his previous statement recorded by him that he left for Tamil Nadu only on the night of 02.12.2007.

25. It is seen that the evidence of PW9 contains two parts, of which the former relates to the sequence of events that took place at noon and the latter relates to the sequence of events that took place post noon. As far as the sequence of events that took place at noon is concerned, there is no dispute. The dispute relates to the evidence tendered by PW9 as regards the sequence of events that took place post noon. The question put to PW9 as extracted above assumes importance in this context. As noted, PW9 has admitted in his evidence that "ന$ നമ ന ര ന$നന അവരുന" വട നലക ഊണ കഴ ക ൻ D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 30 :- 2025:KER:1013 ന1 യനശഷ ഞ ൻ ഊണകഴ ഞ തമഴ ട നലക ന1 യ ". It is not disputed that the evidence of PW9 as regards the time at which the accused left his shop is the time at which they left to the house of the appellant for lunch. In other words, the previous statement of PW9 as admitted by him in cross-examination can only be understood as that he left for Tamil Nadu after the accused left for lunch to the house of the appellant. The same coupled with the significant omissions in the previous statements of PW9 that he did not state to PW24 that while PW6 was returning from his shop at about 8.45 p.m., the accused were sitting on the culvert near his shop and that PW6 came back to his shop again on the same day at about 9.30 p.m., we are compelled to hold that it is not safe to place reliance on the evidence tendered by PW9 as regards the sequence of events that took place post noon on 02.12.2007.

26. As regards the evidence tendered by PW15 that one of the chance finger prints collected from MO20 liquor bottle matched with the interdigital area of the right palm of the appellant, the argument seriously pressed into service by the learned Senior Counsel for the appellant is that the D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 31 :- 2025:KER:1013 evidence tendered by PW15 cannot be used against the appellant for, the seizure of MO20 and its production before the jurisdictional court, are all suspicious. It was pointed out that MO20 was not an object collected from the scene of occurrence namely, inside the house of the victims. On the other hand, it is an object collected from outside the residential building. That apart, it was pointed out that although MO20 was seized on 04.12.2007 at the time of holding inquests of the bodies of the victims and although all the documents seized along with the same were produced before the jurisdictional court on 06.12.2007, MO20 was not produced before the court along with other articles. It was submitted that even though MO20 was seen produced before the court at a later point of time, there is nothing on record to indicate the exact date the same was produced before the court. It was also pointed out that in the meanwhile, the appellant was arrested at 4 p.m. on 06.12.2007. It was submitted by the learned Senior Counsel that the specific case of the appellant at the stage of recording the statement under Section 313 of the Code, is that his palm impressions were taken in two bottles at D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 32 :- 2025:KER:1013 the time of his arrest. According to the learned Senior Counsel, since MO20 was very much in the custody of the investigating officer at the time of the arrest of the appellant, in the absence of any satisfactory explanation as to the reason why the same was withheld from being produced before court along with the other articles seized on the same day, it is not safe to accept the evidence tendered by PW15 as an incriminating circumstance against the appellant.

27. There is no dispute to the fact that MO20 was not seized from the scene of occurrence. It is admittedly, an object that was collected from outside the house of the victims. Merely on account of that reason, the appellant cannot be heard to contend that the evidence tendered by PW15 cannot be accepted as a circumstance against the appellant. But, as noted, it has come out in evidence that while all the other articles collected from the scene of occurrence as also from outside the house of the victims at the time when the inquests were held, were produced before the jurisdictional court on 06.12.2007, MO20 and two other articles were not produced before the court. The explanation offered by the investigating D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 33 :- 2025:KER:1013 officer during his examination for the non-production of MO20 along with other articles on 06.12.2007 is that the same was retained for the purpose of taking its photographs. The said explanation, according to us, is not convincing. PW26 is the photographer who took the photographs of the chance fingerprints. PW26 was very much present at the place of occurrence when the fingerprint expert lifted the chance fingerprints. PW26 does not state, conspicuously, in his evidence as to when he photographed the chance fingerprints lifted by the fingerprint expert and as to when he handed over the CD containing the photographs of the chance fingerprints to the investigating officer. On the other hand, it was admitted by PW26 in cross-examination that there is no document to indicate as to when he handed over the CD to the investigating officer. Even though PW26 did not depose as to when he took the photographs of the chance fingerprints contained in MO20, the sequence in which he gave evidence would indicate that the chance fingerprints in MO20 were photographed at the time of the seizure of the object itself, if not, immediately after the seizure. At any rate, inasmuch as MO20 was seized on D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 34 :- 2025:KER:1013 04.12.2007, and all the documents produced along with the said object were produced before the court on 06.12.2007, in the absence of any impediments in photographing the chance fingerprints till 06.12.2007 and in the absence of any document evidencing the date on which the said object was produced before the jurisdictional court, according to us, it may not be safe to place reliance on the opinion of the fingerprint expert for, we cannot rule out the possibility of manipulation in the chance fingerprints contained in MO20, after the arrest of the appellant. We take this view, as it is obligatory for the prosecution to maintain the chain of custody as also the purity of the samples during investigation. In other words, right from the time of taking the sample, to the time its role in the investigation and the process subsequent thereto, is complete, each person handling the said piece of evidence must duly acknowledge in the documentation to ensure that the integrity of the sample is uncompromised [See Prakash Nishad v. State of Maharashtra, 2023 SCC OnLine SC 666].

28. As noted, Ext.P34 report of the Forensic Science Laboratory reveals that MO7 chopper stated to have D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 35 :- 2025:KER:1013 been recovered based on the information furnished by the appellant contained blood, although its origin could not be traced. Likewise, it is revealed from the said report that MO8 pants recovered based on the information furnished by the appellant contained human semen, although its origin could not be detected. Likewise, it is revealed from the said report that the fibre of cloth collected from the door of the house of the victims were similar to the fibre of MO8 pants. The argument advanced by the learned Senior Counsel for the appellant as regards the report that MO7 chopper contained blood, is that since the origin of the blood contained in MO7 chopper could not be detected, the same cannot be used as a conclusive circumstance against the appellant for, the possibility of the said weapon not being used for the commission of the crime, cannot be ruled out. We are in concurrence with this argument. Of course, had this been a case where the blood of the victims or at least, blood of the same group of the victims, was found on that weapon, the position would have been different. In the absence of at least human blood in the weapon, what could be inferred at the D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 36 :- 2025:KER:1013 most is only that a weapon with which the injuries suffered by the victims could be caused, has been recovered based on informations furnished by the appellant. The said possibility, according to us, cannot be accepted as a circumstance against the appellant.

29. As regards the report that human semen was found in MO8 pants, the argument advanced by the learned Senior Counsel for the appellant is that the appellant being a married man, the presence of semen in MO8 pants cannot be taken as a conclusive circumstance against him in a case of this nature. We are in agreement with this argument of the learned counsel for the appellant. We take this view for two reasons namely, that MO8 was a cloth recovered from the house of the appellant and that the origin of semen was not detected.

30. As regards the report that the fibre of MO8 pants and the fibre found on the door of the house of the victims are similar, the argument advanced by the learned Senior Counsel is that since clothes are articles produced in bulk, the similarity of the fibre cannot be regarded as an D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 37 :- 2025:KER:1013 incriminating circumstance, as similar fibres are found in many garments. The learned Senior Counsel placed reliance on a recent judgment of this Court in Crl.Appeal No.485 of 2019, in support of the said argument. We find force in this argument. The issue involved in Crl.Appeal No.485 of 2019 was as to whether the report of the Forensic Science Laboratory that fibres collected from the body of the deceased which were found to be similar to the fibres of the shawl said to have been recovered from the house of the accused, could be accepted as a conclusive circumstance in a case on circumstantial evidence. Paragraphs 37 and 38 of the judgment in the said case read thus:

"37. Then there is the evidence of PW26, the Assistant Director (Biology), who had issued Ex.P28 report with regard to the samples of fibers collected in the cellophane Fingerprints of the palms and neck lifted by the investigating officer. Ext.P18 would reveal that the cellophane fingerprints of the right hand of the deceased (Item No.2), cellophane fingerprints of the left palm (Item No.4(a)) and cellophane fingerprints of the right palm (Item No. 4 (b)) contained fibers (scanty), which were similar to those in item No.1, the fibres of the shawl siad to have been recovered from the house of the accused.

38. Fibers, especially those from textiles like shawls, are composed of synthetic or natural materials, which can be mass- produced. This means that "similar" fibers are found in countless D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 38 :- 2025:KER:1013 garments. The term "similar" indicates that the fibers share characteristics but doesn't confirm an exclusive match. There is a a whole lot of difference between "similar" (broad range) and "identical" (conclusive match) while analyzing fiber samples. As per Criminalistics, An Introduction to Forensic Science, Edition 13, published by Pearson, fiber analysis is often categorized under "class evidence," which lacks the individualization capability of "unique" evidence like fingerprints or DNA. Therefore, when the report says the fibers are "similar," it only means that they share general features but do not pinpoint the source of a single item or person. (See also B.R.Sharma Forensic Science in Criminal Investigation & Trials, 6th Edition) Microscopic comparisons of fibers look at aspects such as diameter, colour, shape, and dye composition. However, even two fibers from the same manufacturer can appear "similar"

without being "identical." The fiber's general appearance, under a microscope, could match many fibers produced in the same batch or even by other manufacturers. Many commercial fibers are polymer-based, with mass-production techniques that yield similar fibers across various products. If the fibers were only deemed "similar," it implies that these could have originated from other items in circulation. This Court has held that fiber evidence indicating mere "similarity" without additional corroborating evidence did not suffice to prove the accused's guilt beyond a reasonable doubt. As the fibers are not conclusively identical, their presence does not prove that the shawl allegedly seized from the house of the accused was used in the crime. Reference can be made to Biju Kumar v. State of Kerala12 , and Muhammed Yousaf @ Sajid v. State of Kerala13 . In Sajid (supra), though what was tested was hair and the report stated that it was similar rather than identical, this Court had held that it is not safe to rely on FSL report relating to the matching of the hair samples when the result only shows that D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 39 :- 2025:KER:1013 the hairs were 'similar' in nature. It was observed that there is a substantial difference between the words 'identical' and 'similar', and therefore the report only speaking about similarity cannot be relied on."

In the circumstances, it is not safe to accept the report of the Forensic Science Laboratory as regards the similarity of the fibre in MO8 pants and the fibre found on the door of the house of the victims.

31. One of the arguments seriously pressed into service by the learned Special Public Prosecutor is that inasmuch as the first accused has been found guilty of the charges in an earlier trial and since that judgment has become final, it is not necessary for the prosecution to establish all the facts that are required to prove the charges against the appellant and it is suffice to prove that the appellant was present along with the first accused at the scene at the time of occurrence and that they shared the common intention to commit rape and murder of the victims. According to the learned Special Public Prosecutor, on the facts of this case, if it is established that the appellant was present at the scene along with the first accused, the common intention to commit D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 40 :- 2025:KER:1013 the crime could be straight away inferred and that the thumb impression found in MO20 establishes the presence of the appellant at the scene at the time of occurrence. In other words, the argument advanced by the learned Special Public Prosecutor is that if the evidence tendered by PW15, the fingerprint expert, is accepted, the appellant can be convicted on that sole basis. We find this argument fallacious. In the light of Section 43 of the Indian Evidence Act, the judgment rendered by the court in the previous trial would be relevant only if the existence of such a judgment is a fact in issue in the present case or when the same is relevant under some other provisions of the Evidence Act. The Special Public Prosecutor has no case that the existence of the previous judgment is a fact in issue or a relevant fact in terms of the provisions of the Evidence Act. The Indian Evidence of Act does not make the finding of fact arrived at on the evidence before the court in one case evidence of that fact in another case [See Gopika Raman Roy v. Atal Singh, 1928 SCC OnLine PC 4].

32. In the light of the discussion aforesaid, the circumstances that are established in the case on hand are the D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 41 :- 2025:KER:1013 following:

(i) that the death of the victims occurred after the daughter victim returned to her house after selling pepper on the evening of 02.12.2007 and before 5.30 p.m. on 03.12.2007, when PW5 saw her infant left unattended in the courtyard of the house of the victims.

(ii) that PW9 saw the accused together in the afternoon of 02.12.2007 in his shop which is situated in the locality of the house of the victims.

(iii) that PW6 saw the accused near the shop of PW9 at about 8.45 p.m. on 03.12.2007.

At this stage, it is necessary to refer to the charges framed against the appellant to ascertain the facts which are required to be approved by the prosecution, to establish the guilt of the accused. The charges are :

"Firstly, that you Jomon along with other accused Rajendran, at 10 p.m. on 2-12-2007 committed house trespass, by entering into the house of xxx and xxx with intention to rape and murder them and thereby committed an offence punishable u/s 449 IPC and within my cognizance.

Secondly, you along with other accused Rajendran, on the date and time as stated above, trespassed into the house of xxx and xxx at night and committed rape on them and thereby committed an offence punishable u/s 376 IPC and within my cognizance.

Thirdly, you along with other accused Rajendran, on the date and time as stated above, voluntarily caused hurt to xxx and xxx with chopper and iron rod and intentionally caused their D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 42 :- 2025:KER:1013 death and thereby committed an offence punishable u/s 302 IPC and within my cognizance.

Lastly, you acted in furtherance of your common intention with the other accused Rajendran trespass into the house, committed rape and murder of xxx and xxx and thereby committed an offences punishable u/ss. 449, 376, 302 r/w 34 IPC and within my cognizance."

There cannot be any doubt that the circumstances established as mentioned above do not satisfy the requirements of law as enumerated in paragraph 19 to hold that the appellant is guilty of the charges for, the same do not form a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and will not show that in all human probability, the act must have been done by the accused.

33. A close reading of the impugned judgment would indicate that the aforesaid circumstances together with the circumstances which have been rejected by us namely

(i) that MO7 chopper recovered based on the information furnished by the appellant with which some of the injuries sustained by the victims could be caused, contained blood, (ii) that one of the chance fingerprints collected from the premises D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 43 :- 2025:KER:1013 of the house of the victims matched with the interdigital impression of the right palm of the appellant and (iii) that the fibre of MO8 pants recovered based on the information furnished by the appellant matched with the fibre collected from the door of the house of the victims, the Court of Session came to the conclusion that the prosecution has established the guilt of the accused beyond reasonable doubt. Having regard to the specific charges framed against the appellant, we are of the view that even if the herein above circumstances are also accepted as circumstances against the appellant, the requirement of law as regards the proof of facts in a case on circumstantial evidence, will not be satisfied in this case for, it cannot be said that the circumstances together are consistent only with the hypothesis of the guilt of the appellant namely that they are not explainable on any other hypothesis except that the accused is guilty. The impugned judgment, in the circumstances, is liable to be set aside and we do so.

In the result, the criminal appeal is allowed, the impugned judgment is set aside and the appellant is acquitted. He shall be set at liberty forthwith from the concerned prison, if D.S.R.No.1 of 2019 & Crl.Appeal No.415 of 2019 -: 44 :- 2025:KER:1013 his continued detention is not required in connection with any other case. Registry shall communicate this judgment forthwith to the concerned prison, where the appellant is undergoing incarceration. The Death Sentence Reference is answered in the negative.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

JOBIN SEBASTIAN, JUDGE.

YKB/Mn/Ds

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