Ravi vs State Of Kerala on 10 July, 2009

[Cites 5, Cited by 101]

Kerala High Court

Ravi vs State Of Kerala on 10 July, 2009

The sole accused in S.C.No.436/08 of the court of IVth Additional Sessions Judge (Ad hoc-II), Thodupuzha, who was convicted for the offence under section 302 of IPC and sentenced to undergo imprisonment for life and to pay a fine of `25,000/-, in default, to undergo simple imprisonment for 6 months, has come up in appeal.

2. The prosecution case is that, the sister of the appellant was given in marriage to the deceased. According to the prosecution, the appellant has ill-treated his daughter Maya, PW11, and two days prior to the incident, the said Maya was given asylum in the house of the deceased and he gave protection to the said girl. It is Crl.A.No.2134 of 2009 2 the further case of the prosecution that the above act of the deceased infuriated the appellant to do away with the deceased and thus out of that enmity towards the deceased, the appellant at about 1.50 a.m. on 24.8.2006, with the intention to commit murder of his brother-in-law, Sasi, stabbed him (the deceased) with a knife on the left side of his abdomen and the incident had occurred on a road starting from the Panchayat Community Hall to Moolamattom town and near to Community Hall of Arakulam Grama Panchayat and thereby the appellant committed the offence punishable under section 302 of IPC.

3. The above incident was informed to the Assistant Sub Inspector of Police, Kanjar Police Station at about 3 a.m. on 24.8.2006 by PW1 Pradeep. According to the informant, he has got acquaintance with the deceased Sasi, who was residing in Nedumala house at Myladi in Arakkulam. The informant was working as a helper for Crl.A.No.2134 of 2009 3 the mason and he belonged to Oorali community and has studied upto 9th standard. What he stated in the information statement was that the marriage of Rekha, who is the sister of one Poovathinkal Rajesh (PW1's neighbour and friend), was fixed and scheduled to be held on 24.8.2006 at the Community Hall of Arakkulam Panchayat. According to the informant, on the previous day of the incident, on completing his work, he went to the Community Hall to render requisite assistance connected with the marriage function. Thereafter, when the said work was over, he along with the said Rajesh came out of the community hall and they had seen a person lying supine on the road starting from the Community Hall towards Moolamattom town. With the help of the light from his mobile phone, they identified the said person as Sasi residing in Nedumala House at Myladi area. He noticed that the deceased was gasping. According to the informant, when he examined the body of Sasi, he had Crl.A.No.2134 of 2009 4 seen blood on his body and the blood was oozing out from the injury seen at left side of his abdomen. According to the informant, they rushed to the Community Hall and conveyed the information to the persons available there, and all of them rushed to the place of occurrence and removed the injured into an autorickshaw driven by Kochupurackal Johny. The deceased was taken to the Bishop Vayalil Hospital, Moolamattom, by the informant and the above said Rajesh and two other persons, namely, Manjakkunnel Shaju and Kaarakkattu-parambil Shibu. According to the informant, after examination, the doctor declared the death of the deceased and he further informed that the dead body was kept in the Bishop Vayalil Hospital. As per the version of the informant, he had received a hearsay information that the security person of Moolamattom Beverages shop had seen that the brother-in-law of Sasi (Ravi, the appellant) had stabbed Sasi-the deceased with a knife and ran away. According Crl.A.No.2134 of 2009 5 to the informant, he does not know why the appellant had stabbed the deceased. The deceased was a Compressor Tractor driver by profession and belonged to Hindu Pulaya Community. The above statements were given before the Assistant Sub Inspector of Police, Kanjar Police Station, who was examined as PW24, and who had reduced the same to writing, on the basis of which, he registered Ext.P1(a) FIR in Crime No.217/06 of Kanjar Police Station for the offence punishable under section 302 of IPC.

4. The investigation in the above crime was undertaken by PW25, the then Circle Inspector of Police, Kanjar, on 24.8.2006. As part of his investigation, PW25 proceeded to the Bishop Vayalil Hospital, Moolamattom, and he conducted inquest on the body of the deceased at about 10 a.m. on 24.8.2008 in the presence of PW12 and he had identified Ext.P12 inquest report dated 24.8.2006 prepared by him. As per Ext.P12 inquest report, Mos.2 and 3 which are respectively the shirt and lungi worn by Crl.A.No.2134 of 2009 6 the deceased, were taken into custody and those material objects were also identified. On completing the inquest report, he proceeded to the scene of crime and prepared the scene mahazar, under which, he seized Mos.4 and 5, two pairs of chappals in the presence of PW14. According to PW25, he had also collected blood sample seen on the chappals at the place of occurrence. PW25 had also identified Ext.P13 scene mahazar prepared by him and also identified Mos.4 and 5 chappals. PW25 had prepared and sent a report to the court, showing the full address of the appellant/accused, and he identified the same as Ext.P22. Besides Ext.P22 address memo, he had also prepared and furnished Ext.P23 report by which he clarified that the word " mentioned in Ext.P12 "

inquest as mesentery. PW25 had seized the photographs of the body of the deceased and also with respect to the scene of occurrence and the negatives of the said photographs, which were already marked as Ext.P16 Crl.A.No.2134 of 2009 7 series and Ext.P17 series as per Ext.P24 mahazar. According to PW25, on 24.8.2006, from the back side of the workshop situated near to the place of occurrence, he had seized a red coloured shirt in the presence of PW15, that was allegedly worn by the appellant at the time of the alleged incident and an O.P. Card was found in the pocket of the said shirt. He had identified the said shirt as MO1 and the OP Card as Ext.P11. The mahazar prepared for seizing the MO1 shirt and Ext.P1 OP card was identified as Ext.P14. According to PW25, during the course of investigation, on getting information about the presence of the appellant at Kuruthikkulam, himself and party had proceeded to that place and placed the appellant under arrest on 18.3.2007 as per the arrest memo which he identified as Ext.P25. According to PW25, on the arrest of the accused and on his interrogation, the appellant had made a disclosure statement, by which he revealed about the concealment of the knife. Thus according to PW25, Crl.A.No.2134 of 2009 8 the appellant has confessed before him that, "I have placed the knife in a space beneath the rock situating on the northern side of my house ; if I am taken there, I will take and produce the knife." The said portion of the confession statement was identified by PW25 as Ext.P15

(a). According to PW25, on the basis of the above Ext.P15

(a) confession statement and as led by the appellant, PW25 and party had reached near the rock situating on the northern side of the Kaarakattu parambil house in Arakkulam village in Kuruthikkulam kara and the knife was taken out by the appellant Ravi from the space beneath the above mentioned rock, in the presence of PW16. The said knife was seized by PW25 as per the mahazar prepared at about 8.30 a.m. on 19.3.2007 and the said mahazar was identified as Ext.P15.

5. According to PW25, he produced all the material objects 5 in numbers before the court by filing a property list, which he identified as Ext.P26. PW25 has also Crl.A.No.2134 of 2009 9 identified the copies of the forwarding notes filed before the court for sending the material objects for chemical analysis, as Ext.P27 series 2 in numbers. According to PW25, he questioned the witnesses and recorded their statements. PW25 has also deposed that PW1 had stated as per Ext.P2, PW2 had stated as per Exts.P3 and P3(a), PW3 had stated as per Exts.P4, P4(a), P4(b), P4(c), PW4 had stated as per Exts.P5, P5(a), PW5 had stated as per Ext.P6, PW8 had stated as per Ext.P7, PW9 had stated as per Ext.P8, PW10 had stated as per Ext.P9, PW11 had stated as per Ext.P10, P10(a), P10(b) and PW19 had stated as per Ext.P12(a), during recording their statements under Section 161 Cr.P.C. On completing the investigation, PW25 had laid the charge.

6. During the trial of the case, from the side of the prosecution PWs.1 to 25 were examined and Exts.P1 to P28 documents were marked. Mos.1 to 6 were also identified.

Crl.A.No.2134 of 2009 10

7. On completing the prosecution evidence, incriminating evidence and circumstances brought out during the prosecution evidence were put to the appellant when he was examined under Section 313 of Cr.P.C. and he denied the same. As there was no scope for acquitting the appellant under section 232 of Cr.P.C., the appellant was asked to enter on his defence. But no evidence was adduced from the side of the defence. Thereafter, the court below heard the prosecution as well as the defence. The trial court on the basis of certain circumstances mentioned in the impugned judgment, particularly in paragraph 23, found that all such circumstances involved in the case would clearly prove the guilt of the accused beyond reasonable doubt and thus the appellant was found guilty under section 302 of IPC. Thus he was convicted thereunder. On such conviction, the aforementioned sentence was imposed on the appellant.

8. Heard Sri.Grashious Kuriakose, the learned senior Crl.A.No.2134 of 2009 11 counsel for the appellant and Sri.Gikku Jacob, the learned Public Prosecutor for the State.

9. The learned senior counsel for the appellant vehemently submitted that the trial court was absolutely incorrect and illegal in its finding and convicting the appellant for the offence under section 302 IPC in the absence of clear and satisfactory evidence. According to the learned counsel, the circumstances pointed out by the learned Judge of the trial court are not properly established and are not supported by satisfactory evidence. Even if the circumstances are admitted for the sake of argument, those circumstances are not sufficient to prove a complete chain of evidence, pointing towards the guilt of the appellant and ruling out any hypothesis consistent with the innocence of the appellant. The learned senior counsel has strenuously submitted that the motive as alleged by the prosecution against the appellant to commit the crime is not proved and the available Crl.A.No.2134 of 2009 12 evidence are not sufficient to connect the appellant with the crime in which the deceased was murdered. Per contra, the learned Public Prosecutor, after having invited our attention to the evidence and materials on record, submitted that the appellant was found running from the place of occurrence immediately after the incident and the crime was registered, depicting the appellant as the accused who is responsible for the homicide of deceased Sasi. It is also the submission of the learned Public Prosecutor that, on the very same date of the incident, MO1 shirt worn by the accused at the relevant point of time had been seized, just behind the workshop building situated near to the place of occurrence and the said MO1 shirt contained human blood stains and from the pocket of MO1 shirt, Ext.P11 O.P.Card connected with the treatment of PW11-the daughter of the appellant, was also seized. The above circumstances and its connected facts are sufficient to prove the involvement of the appellant in Crl.A.No.2134 of 2009 13 the crime. The learned Public Prosecutor vehemently submitted that as per Ext.P15 mahazar, MO6 knife was recovered under Section 27 of the Indian Evidence Act on the basis of the confession statement of the appellant which was recorded as Ext.P15(a). According to the learned Public Prosecutor, PW21-the doctor who conducted autopsy on the body of the deceased and issued Ext.P19 postmortem certificate, has deposed before the court that by using MO6 knife, the injuries noted in Ext.P19 could be caused. Thus, on the basis of the above evidence and the recovery of MO6 knife, it is the submission of the learned Public Prosecutor that it is the appellant who is responsible for the murder of the deceased. It is also pointed out that immediately after the occurrence, the appellant absconded and he could be arrested only on 18.3.2007, ie., nearly after 6 months from the date of the incident and the above conduct of the appellant positively shows his involvement in the Crl.A.No.2134 of 2009 14 commission of the offence. It is also the contention of the learned Public Prosecutor that the appellant took a contention of alibi, during the trial of the case, but he did not succeed in establishing the same and the failure on the part of the appellant to prove his plea will certainly go against him. Thus according to the learned Public Prosecutor, the trial court is fully justified in its finding and convicting the appellant for the offence under section 302 IPC and no interference is warranted.

10. We have carefully considered the rival contentions advanced by the learned Senior counsel appearing for the appellant as well as the learned Public Prosecutor for the State. We have also perused the evidence and materials available on record. At the outset it is to be noted that the fact that the deceased Sasi died as a result of homicide, is beyond any dispute. As stated above, the deceased was taken to Bishop Vayalil Hospital immediately after the incident. But the doctor of the said Crl.A.No.2134 of 2009 15 hospital, who examined the deceased declared his death. PW25 conducted inquest over the body of the deceased on 24.8.2006 itself. Thereafter, PW21, the then Assistant Surgeon, attached to Taluk Head Quarters Hospital, Thodupuzha, conducted the postmortem examination on the body of the deceased and he issued Ext.P19 postmortem certificate. In Ext.P9 postmortem certificate, PW21 has noted the following ante mortem injuries :

"There is an oblique elliptical incised wound of 3x1.5 cms. on the left side of lower abdomen ; 9 cms below the umbilicus and 5 cms lateral to the midline which is directed posteriorly and upwards and medially in the direction of the umbilicus piercing all layers of anterior abdominal wall and communicating with the peritoneal cavity, through which adipose tissue is protruding out and dark blood is oozing. No other external injuries.

Other injuries : Peritoneum contained 2000 ml of dark blood with clots and intestinal contents, there is a perforation 1.5x1 cms on the jejunum 75 cms from the D-J junction, two rents 4x3 cms each on the mesentory, perforation 3x2 cms on the lower part of the descending colon, left common iliac vessels are transected 1.5 cms distal to the bifurcation of abdominal aorta producing large retroperitoneal haematoma, all Crl.A.No.2134 of 2009 16 internal organs appear pale otherwise appear normal."

He has also opined as to the cause of death, which was to the effect that, "Postmortem findings are consistent with death due to haemorrhagic shock and other injuries sustained". During the examination of PW21, he deposed in terms of the contents of Ext.P19 postmortem certificate. According to PW21, the injuries can be caused by a stab with MO6 knife, which was shown to him and all the internal injuries found in the abdomen are possible by a stab corresponding to the external injury. The injuries noted by PW21 are sufficient to cause death in the ordinary course of nature. Hence it is a case of homicide.

11. In the light of the rival contentions and in view of the evidence and materials on record, the further question to be considered is whether the prosecution has succeeded in establishing that the accused had committed the murder of deceased Sasi by stabbing with MO6 knife. As there was no direct evidence, the court below by Crl.A.No.2134 of 2009 17 accepting the case of the prosecution has held that the circumstances alleged and established by the prosecution would prove the guilt of the appellant beyond reasonable doubt. Therefore, the further question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offence under section 302 IPC. To consider the above questions, a review of the entire evidence and materials available on record are absolutely necessary.

12. We have already referred to Ext.P1 FIS given by PW1. On a reading of Ext.P1 it can be seen that the informant has no claim that he had seen any part of the incident. When PW1 was examined, he deposed that he gave Ext.P1 First Information statement before PW24, the then Assistant Sub Inspector of Kanjar Police Station at about 3 a.m. on 24.8.2006. PW1 deposed before the court that he knew deceased Sasi, but he does not know how the said Sasi died. According to PW1, he along with 10-30 Crl.A.No.2134 of 2009 18 persons were assisting in the preparatory works at the Moolamattom Community Hall in connection with the marriage of the sister of his friend Rajesh. The deceased was not seen in the hall. He identified the person who was standing in the dock as a person known to him. According to PW1, the appellant is the brother-in-law of the deceased and the appellant was also not available in the Community hall on the date of the incident. As PW1 has stated that the appellant was not available in the Community hall, the learned Public Prosecutor in the trial court has sought permission to declare PW1 as hostile and the said request was allowed and the court permitted him to put question to PW1 which might be put in cross examination. According to PW1, on 24.8.2006 at about 1.50 a.m., he saw a person lying on the road in front of the Moolamattom Community Hall. When PW1 approached the person who was lying, he found blood on his hand and at that time Rajesh was along with him. PW1 has further Crl.A.No.2134 of 2009 19 deposed that he identified the person who was lying injured as Sasi, on seeing him in the light emanated from his mobile phone. PW1 has stated that, he tried to wake up the said Sasi by calling him, but he did not say anything. According to PW1, thereafter he rushed to the Community Hall and informed the matter to all the persons who were available there. Thus the persons available in the Community Hall and in the surrounding area rushed to the spot where deceased Sasi was lying. He also deposed that he does not know one Paramasivan of the nearby foreign liquor shop and that, he had not seen the appellant running away, wearing a red coloured shirt. PW1 deposed that, the said Paramasivan had not told him that he had seen Ravi, the appellant, running away from the spot. PW1 has further deposed that the injured was taken to Bishop Vayalil Hospital, Moolamattom, by himself, Rajesh, Shibu and Shaju in an autorickshaw. The doctor after examining injured Sasi, has declared his Crl.A.No.2134 of 2009 20 death. According to PW1, after the death of the deceased, he went to Kanjar Police Station and gave a statement and the same was identified as Ext.P1. Ext.P2 portion of his 161 statement was marked through him, subject to proof and PW1 stated that, if such a statement was seen as given by him, he has nothing to say. PW1 had seen that blood was oozing out from the abdominal portion of the deceased. According to PW1, the deceased was his friend. At the time of occurrence, the deceased was residing along with his family at Myladi. He also deposed that he had acquaintance with the appellant and he was not telling lie to save the accused.

13. PW2 was a security employee at the outlet of Beverages Corporation at Moolamattom and his working hours were between 7 p.m.-10 a.m. PW2 has deposed that on the date of the incident, he was on duty. According to PW2, Moolamattom Community Hall is situating very near to his work place. At about 12 a.m. on Crl.A.No.2134 of 2009 21 the date of incident, he went outside for taking tea from a mobile catering shop. PW3 and CW4 were present near the said shop. According to PW2, at about 1.30 a.m. himself and others proceeded to the shop and at that time, a person was seen running from the side of the Community Hall towards Kanjar side. According to PW2, CW3 and CW4 were also present in the shop. PW2 further deposed that CW3 who was examined as PW3, had chased that person with a torch. PW2 heard a hue and cry from the side of the Community Hall and in the meanwhile, PW3 came back and all of them proceeded towards the Community Hall. They saw a person lying on the road and he was injured. He did not see the injured being taken to the hospital. As he denied of seeing the injured being taken to the hospital, the Public Prosecutor in the trial court sought permission to declare him as hostile and the same was allowed and thereafter the Prosecutor was permitted to put leading questions which might be put Crl.A.No.2134 of 2009 22 during the cross examination. During such examination, the portions of his 161 statement were put to him, but he denied the same and PW2 stated that, if such a statement was seen as given by him, he has nothing to say. Exts.P3 and P3(a) relevant portions of his 161 statements were marked through him, but subject to proof. He further deposed that after having seen a person lying injured, he had again returned to the road. Thankan and Jose remained at the place where the injured was lying. According to PW2, the Community hall is within a distance of 150 feet from the place where the injured was lying and there was heavy sound from the Community hall. He further deposed that the first step to be taken, on seeing a person lying injured, was to inform others. But he did not inform anybody. He also deposed that after 3 days of the incident, the Police showed him a red coloured shirt and he identified the same as the one worn by the person who was found running away. Thus MO1 shirt was marked Crl.A.No.2134 of 2009 23 through PW2. He also deposed that at the time of his examination, he was not working in KSBC. He had no prior acquaintance with the appellant. According to him, he was not saying lie to save the appellant. During the cross examination, he deposed that he did not know the colour of the shirt worn by the person who was found running away. During the cross examination, when PW2 was asked as to whether the red coloured shirt which was shown by the police was not the shirt worn by the person who was seen lying in the road in front of the Community Hall, he conceded to the same.

14. PW3 when examined deposed that he knew the deceased and the appellant. The deceased had married Rekha, the sister of the appellant. According to PW3, he was working in a quarry and the deceased was working as Compressor Operator in the said quarry. PW3 knew about the incident in which Sasi was murdered. According to PW3, during the night at which the incident took place, he Crl.A.No.2134 of 2009 24 was working in the Palakkattukunnel Buildings at Moolamattom town. He also deposed that CW4 Thankan, who was examined as PW9, was also present along with him during the work. He further deposed that though he did not see the appellant in the town in the evening, he saw the appellant running at the night on the date of occurrence. On seeing the appellant, between 1 and 2 o'clock at night, the security personnel of the Beverages outlet shouted as 'thief'. According to PW3, at that time, he was standing beneath the building where he was working, after taking black coffee. That building is situating by the side of Thodupuzha-Moolamattom road in the Moolamattom town itself. The road leading to Moolamattom Community Hall is lying in front of the above mentioned building. He saw the appellant running towards Kanjar side, in the light emanating from the street light. At that time, the appellant had worn a shirt and dhothi. According to him, he does not remember the Crl.A.No.2134 of 2009 25 colour of the shirt worn by the appellant. Since PW3 has stated that he did not remember the colour of the shirt worn by the appellant, on the request of the Public Prosecutor in the trial court, PW3 was declared as hostile and the Prosecutor was permitted to put questions, that might be put in cross examination. During such examination, PW3 deposed that police had questioned him but he has not stated to the Police that the appellant had worn a red coloured shirt. The above portion of his 161 statement was marked as Ext.P4, subject to proof. Similarly, Exts.P4(a), P4(b) and P4(c) were also marked through PW3. After having seen the appellant running, he proceeded to the Community Hall, accompanied by PW2 and CW4 and they saw some people gathered in the road leading to the Community Hall. There he saw the deceased lying injured. According to PW3, the people took the deceased in an autorickshaw to the hospital. He told the people gathered there that, he had seen the appellant Crl.A.No.2134 of 2009 26 running. He did not go to the hospital but he came to know that Sasi died, when the people who went in the autorickshaw came back. PW3 also deposed that he knew that the appellant and the deceased were brothers-in-law and that he had not given any statement before the Police that he identified the appellant escaping after stabbing Sasi. Thus Ext.P4(b) was marked through PW3. During the cross examination, PW3 has deposed that on that day, he had not seen the appellant at the time and at the place of occurrence.

15. Another witness examined by the prosecution was one Rajesh (PW4). According to him, the marriage of his sister was scheduled to be held on 24.8.2006 in the Moolamattom Community Hall. In connection with the marriage, his friends and neighbours were present in the Community Hall on the previous day of the marriage from the evening onwards, for the preparation of the feast and other works connected with the marriage. The deceased Crl.A.No.2134 of 2009 27 was invited to come on the previous day for the preparation of the feast and accordingly he came for the preparatory works on the previous day itself. PW4 has also deposed that he knew the appellant standing in the dock. He did not invite the appellant Ravi, for the marriage. He was also not invited for the preparation of the feast and other preparatory works connected with the marriage. In the evening of the date of the incident, he did not see the appellant. The appellant did not come to the Community Hall for preparing the feast. On the basis of the above deposition of PW4, the request of the learned Public Prosecutor was granted and PW4 was declared as hostile and the court permitted the Public Prosecutor to put any question that might be put in cross examination. PW4 has deposed that he had not given Exts.P5 and P5(a) statements when he was questioned by the police. While he was walking from the Community Hall to the storeroom, he saw a person lying supine on the road Crl.A.No.2134 of 2009 28 outside the gate and he could see the same in the light from the Sodium-vapor lamp of the Community Hall. PW1 was coming just behind him and he called him immediately. According to PW4, there was blood on the hand and the abdomen of the person who was lying on the road. He went to the Community Hall and brought some other people. According to PW4, he realised that it was Sasi who was lying there. He has no acquaintance with Pws.2 and 3. Pws.2 and 3 arrived when the injured was taken to the hospital in an autorickshaw. PW4 has also stated that Pws.2 and 3 told him that somebody was seen running from the place of occurrence. He deposed that Jose (PW3) did not tell him that he realised that the person who ran away was Ravi, the appellant. He has not given Ext.P5(b) statement to the police during his 161 statement before the Police. According to PW4, he knew CW4 who was examined as PW9 and he reached the place of occurrence along with Pws.2 and 3, when the deceased Crl.A.No.2134 of 2009 29 was taken to the hospital. According to PW4, when they took Sasi to the hospital, the doctor declared his death.

16. PW5 has deposed that the marriage of his sister was scheduled to be held on 24.8.2006 in the Moolamattom Panchayat Community Hall and he knew deceased Sasi. According to PW5, the deceased was invited for the marriage. He had not noticed whether the deceased came to the Community Hall during the night connected with the preparation for the marriage. He also deposed that he had acquaintance with the appellant in this case and at the night of the date of occurrence, the appellant did not come to the Community Hall. As the said statement was against his 161 statement, on the request of the Prosecutor, PW5 was declared as hostile and the court permitted the Public Prosecutor to put questions that might be put during cross examination. Thus Ext.P6, portion of his 161 statement was marked through PW5.

Crl.A.No.2134 of 2009 30

17. PW6 when examined, deposed that the deceased (wrongly stated as Shibu) was his relative, and when he was asked as to whether the appellant was present on the previous night of the marriage for the preparatory works connected with the marriage scheduled on 24.8.2006 in the Moolamattom Community Hall, he answered in the negative and he was declared as hostile. During the cross examination he stated that he knew the appellant Ravi. When it was suggested to PW6 that himself, the deceased and Ravi (the appellant) were present in the Community Hall at the night of the incident, he answered that the same was not correct.

18. PW7 when examined deposed that in the early morning of 24.8.2006, he was present in the Moolamattom Community Hall in connection with the preparatory works of the marriage. According to him, he knew the deceased and that he did not see the deceased in the community hall on the date of the incident. He further stated that he Crl.A.No.2134 of 2009 31 knew the appellant and he had not noticed the presence of appellant in the Community Hall on the date of the incident. PW7 also was declared as hostile.

19. PW8 Bhaskaran, deposed that Thankamma, the mother of the appellant is one of his wives. According to him, when he married the said Thankamma, she had a son in her previous marriage and the appellant Ravi is the said son. According to PW8, two months back to the death of the deceased, he was residing at Kuruthikkalam. According to him, during that period, himself, his wife, Sasi, his wife and the children as well as the appellant and children, were residing together in a house. About 10 years back to the date of his examination, the wife of the appellant had committed suicide by consuming poison. At the time of death of Sasi, he was residing in a rental house at Ashoka along with his wife and children. He had shifted to the rental house two months prior to the incident. Ravi (appellant) has a daughter by name Maya. He further Crl.A.No.2134 of 2009 32 deposed that no incident had occurred by which the appellant has harassed Maya. He does not know whether the appellant has got any animosity towards Sasi. As the witness had expressed ignorance about those two facts, the prosecutor in the trial court sought permission of the court below to declare him as hostile and during such examination, he deposed that he has not given Ext.P7 statement to the Police. PW8 has also stated that Rekha is the wife of the deceased and at the time of the death of Sasi, the daughter of Ravi (appellant) was attending the school by residing at the house of the deceased. According to PW8, Maya herself had gone to the house of the deceased. At the time of his examination, the appellant and his daughter and Rekha-the wife of the deceased and her children were residing together in his (PW8) house. He denied that he was telling lie before the court.

20. PW9 is a resident of Adit at Ashoka junction and Crl.A.No.2134 of 2009 33 he knew the deceased for about 2 months prior to his death. He knew the appellant also. According to PW9, in the early morning of 24.8.2006, he was doing mason work at Palakkattukunnel building at Moolamattom and along with him, PW3 Jose was also working. According to PW9, on that day, in the early morning by about 1= -2 o' clock, he along with PW3 had gone out to the road for taking black coffee and at that time PW2 shouted "thief, thief....". According to PW9, PW3 chased the man who ran away and he came back subsequently. It is the further case of PW9 that at that time, he heard hue and cry from the side of the Community Hall and suddenly, himself, Pws.2 and 3 rushed towards the Community Hall side. Some people had gathered there and he saw a person lying injured. The injured was taken immediately to the hospital in an autorickshaw. According to PW9, as told by the persons gathered there, he realised that it was Sasi, who had got injured. He further deposed that Sasi (deceased) has Crl.A.No.2134 of 2009 34 never told him that the appellant in this case had harassed Maya, the daughter of the appellant. As PW9 deposed against his 161 statement, he was declared as hostile and Ext.P8 portion of his 161 statement was marked through him.

21. PW10-Rekha is the wife of the deceased. She deposed that the appellant standing in the dock is her elder brother. According to PW10, two months' prior to the death of Sasi, the deceased, herself and her children, her parents, the appellant (Ravi) and his children were residing together in her house. According to PW10, subsequently herself, her husband and their children shifted their residence to a rental house at the place named, 'Intermediate' near Ashoka. At the time of death of the deceased, Maya-the daughter of the appellant was attending her school from their house and Maya came to her house two days prior to the death of Sasi. During the chief examination, a pointed question was asked to PW10 Crl.A.No.2134 of 2009 35 as to whether Maya had complained against the appellant. Her answer was in the negative. It was again asked to PW10 as to whether Maya had stated that she could not live in the house due to the nuisance of Ravi (appellant). She again answered in the negative. On the basis of the above two answers given by PW10, the Public Prosecutor in the trial court sought permission to declare her as hostile and the same was allowed and the court below permitted the Prosecutor to put questions which might be put in cross examination. Thus during the cross examination of PW10, at the instance of the Public Prosecutor, Ext.P9 portion of 161 statement of PW10 was marked through her. She further deposed that herself and her children, at the time of the examination, were residing along with the appellant. She also deposed that after the death of Sasi, the appellant was not available in station for 3-4 months. According to PW10, after the death of Sasi, she had seen the appellant for the first time about 6 Crl.A.No.2134 of 2009 36 months after his release on bail. After the death of Sasi, her husband, she started to reside along with her parents. PW10 and her husband were invited for the marriage which was held at Moolamattom on 24.8.2006. According to PW10, on 23.8.2006, her husband Sasi after returning from his work, had gone to the Community Hall saying that he had to attend the preparatory works connected with the marriage. PW10 came to know about the death of deceased at about 9 o'clock on 24.8.2006, at the hospital. PW10 has stated about the chappals worn by the deceased on the date of the incident. Though the chappals were shown to her during the time of her examination, she distinguished the same and said that those were not the chappals worn by the deceased at the relevant time. PW10 identified MO2 shirt and MO3 lungi worn by the deceased at the time of the incident. She deposed that, she was not telling lie that the deceased and appellant were not in inimical terms. During the cross Crl.A.No.2134 of 2009 37 examination, from the side of the defence, PW10 deposed that after the death of the deceased, for 6 months, the appellant and his children were residing in their own house at Parakkadavu in Thodupuzha and her mother used to go and visit them in every month.

22. PW11 is none other than the daughter of the appellant. According to PW11, she knew about the incident in which Sasi-her uncle, was murdered. She has deposed that at the time of the death of Sasi, she was attending school from the house of the deceased. She had started attending the school from the house of the deceased, two days prior to the date of the incident. Till that time, she was residing in the parental house along with her grandmother and her father-the appellant. PW11 has categorically deposed during the chief examination that she shifted her residence, to the house of deceased Sasi, considering her convenience to attend the school. No such incident has occurred by which, the appellant had Crl.A.No.2134 of 2009 38 attempted to vex her and no such incident, by which the appellant beat up the grand mother, has occurred. Since the above answers were against the 161 statement of PW11, the Prosecutor sought permission of the court below to declare her as hostile and after allowing the same, the Prosecutor was allowed to put questions that might be put in cross examination. Thus, Exts.P10, P10

(a), and 10(b) were marked through PW11. During the chief examination itself, PW11 has deposed that a few days prior to the date of incident, she had gone to Kanjar Grace Clinic for the treatment of fever. According to PW11, she had gone alone to the hospital. She had taken ticket from the Clinic to meet the doctor and that ticket was not in her possession and she could identify the same on seeing it. Thus during the examination of PW11, she had identified Ext.P11 as the OP ticket obtained by her from the above clinic. She also deposed that, Ext.P11 was in the possession of the appellant. She cannot identify the Crl.A.No.2134 of 2009 39 shirt worn by her father during the time of the incident. According to her, during that period, her father had 4 shirts. During the time of her examination, she was residing along with the appellant. She cannot identify the chappals worn by the appellant at the time of the incident. So also, she deposed that she cannot identify the rubber chappals worn by the deceased Sasi at the time of the incident. During the cross examination, she deposed that she is taken to hospital either by her grandparents or by her aunty. She also deposed that Ext.P11 OP ticket was usually kept by the grandmother and that Ext.P11 ticket was obtained by the police from the grandmother.

23. PW12 is an attestor to Ext.P12 inquest report prepared after examining the body of the deceased and he identified his signature found in Ext.P12. PW13 is the doctor attached to Kanjar Grace Clinic, who had examined PW11-Maya. PW13 identified Ext.P11 O.P. ticket that was issued in the name of Maya-the daughter of the appellant. Crl.A.No.2134 of 2009 40 He deposed that it was on 7.8.2006, that the said girl firstly visited the Clinic. PW14 is an attestor to Ext.P13 scene mahazar prepared by the police and he identified his signature in Ext.P13. According to PW14, at the time of preparing Ext.P13 scene mahazar, the police had seized Paragon chappals and plastic chappals. Thus he identified MO4, the rubber chappals two in numbers. He also identified plastic chappals two in numbers as MO5. He also deposed that blood samples were collected from the road by using cotton.

24. PW15 is an attestor to Ext.P14 seizure mahazar. He identified his signature in Ext.P14. According to PW15, he put his signature in Ext.P14 at the courtyard in the back side of his rented out building situating at Moolamattom town. As per Ext.P14 mahazar, the police had seized a shirt and PW15 identified the shirt as the one so seized which was already marked as MO1. He also deposed that from the pocket of MO1 shirt, the police had Crl.A.No.2134 of 2009 41 seized an OP card.

25. PW16 is an attestor to Ext.P15 seizure mahazar by which the police had seized the knife, which was allegedly recovered on the strength of the confession statement of the appellant. Though PW16 has admitted his signature in Ext.P15 mahazar, he did not depose in terms of the contents of Ext.P15 mahazar. According to him, as directed by the Police, when they came to his shop in the Kuruthikkalam, he put his signature. PW16 has also deposed that he knew the appellant who was standing in the dock. He was very specific in his deposition that when he put his signature in Ext.P15, he saw neither the appellant nor any knife. Though PW15 was declared as hostile and cross examined him at the instance of the Public Prosecutor of the trial court, he did not depose any material facts in favour of the prosecution. He deposed that he knew about the incident by which the deceased Sasi died on receiving stab injury. According to PW16, Crl.A.No.2134 of 2009 42 Ravi the appellant, is his neighbour. He had studied upto Xth standard and he is a literate person. He put his signature as per the instruction of the Police, on a blank paper. He deposed that the appellant was arrested on the date on which he put his signature and he had hearsay knowledge that the Police brought the appellant to his house on the date of his arrest. He also deposed that he was not lying to save the appellant that he had not seen him producing the knife.

26. PW17 is the Police photographer. When he was examined, he deposed that as required by the Police, he had taken the photographs of the body of the deceased Sasi at the place of occurrence. He had entrusted the photographs and its negatives to the Police. He identified Ext.P16 series, 11 in numbers, as the photographs taken by him and its negatives, 15 in numbers, as Ext.P17 series. PW18 was the then Secretary of Arakkulam Panchayat. He identified Ext.P18 as the application dated 25.7.2006 Crl.A.No.2134 of 2009 43 submitted by Ammini Velayudhan for the purpose of conducting marriage in the Community Hall on 24.8.2006.

27. PW19 deposed that he knew the deceased. According to him, he was present when the Police prepared the inquest report at the Bishop Vayalil Hospital. He had occasions to see the appellant and has got such acquaintance. He does not know the reason for the murder of the deceased Sasi. As PW19 deposed contrary to his 161 statement, he was declared as hostile at the request of the Public Prosecutor of the trial court. Thus Ext.P12(a) portion of his 161 statement was marked through him. He also deposed that the deceased Sasi and himself were relatives. He does not know whether the deceased had shifted his residence 2 months prior to his death and he had seen the deceased, 2 years back to his death only. He also deposed that he does not know whether Maya-the daughter of the appellant, was under

the protection of the appellant.

Crl.A.No.2134 of 2009 44

28. PW20, who was then working as GHC Kulamavu Police Station, is an attestor to Ext.P15 recovery mahazar and he identified his signature found on Ext.P15. According to PW20, on 19.3.2007, the Circle Inspector of Police, Kanjar, arrested the appellant and he gave a confession statement ; on the basis of which and as led by the appellant, the Circle Inspector proceeded along with him. PW20 was taken on duty by the Circle Inspector. Thus, according to PW20, they reached near the house of the appellant at Kuruthikkulam and the appellant took out a knife from the space beneath a rock situating on the northern side of the house of the appellant and handed over the same to the Circle Inspector of Police, which was taken into custody by preparing a mahazar, in which he put his signature. Ext.P15 was identified by him and he also identified the knife, which was taken as per Ext.P15 mahazar, as MO6.

29. PW21 is the doctor who conducted the Crl.A.No.2134 of 2009 45 postmortem examination and issued Ext.P19 certificate. We have already referred to the above medical evidence. PW22 was then working as Assistant engineer in the Electrical Section, KSEB, Moolamattom who issued Ext.P20, which contains his signature and seal. He deposed that from 1 o'clock on 23.8.2006 till 8 O'clock of 24.8.2006, there was no power failure. PW23 is the then Village Officer, Arakkulam village, who prepared Ext.P21 scene plan. PW24 was then working as Assistant Sub Inspector of Police, Kanjar, before whom PW1 gave a statement, which was already marked as Ext.P1. PW24 has deposed that on the basis of Ext.P1, he had registered Ext.P1(a) FIR.

30. On the basis of the above evidence, the learned Public Prosecutor vehemently submitted that the prosecution has succeeded in adducing evidence, through which, the material circumstances are established, that point towards the guilt of the appellant and therefore the Crl.A.No.2134 of 2009 46 trial court is fully justified in its finding. Thus, according to the learned Public Prosecutor, the following circumstances are established by the prosecution :-

1. Immediately after the incident, that occurred on 24.8.2006 at about 1.50 a.m., PW1 gave Ext.P1 FIS at about 3 a.m. on 24.8.2006 before PW24, the then Assistant Sub Inspector of Kanjar Police Station, who registered Ext.P1(a) FIR, figuring the appellant as an accused.

2. The deceased was found lying injured at the place of occurrence and from the nearby place, the appellant was found running away at the relevant point of time.

3. PW11, Maya-the daughter of the appellant, was residing in the house of the deceased Sasi during the relevant time and she was suffering from fever for some days prior to the incident, for which she had gone for treatment in Grace Clinic at Kanjar and the Crl.A.No.2134 of 2009 47 O.P. ticket that was issued connected with the same, was found in the pocket of the shirt worn by the appellant at the relevant point of time, and the said shirt and O.P. ticket were recovered from the back side courtyard of the nearby shop, on the date of occurrence itself.

4. MO6 knife which was used for stabbing the deceased was recovered as per Ext.P15 recovery mahazar, pursuant to the disclosure statement made by the appellant under section 27 of the Evidence Act.

5. Immediately after the incident, the appellant was found running away from the spot and absconded. He could be traced out only after 6 months, for which the appellant has no explanation.

6. The appellant has got strong motive to do away the deceased as he had given protection to PW11 and permitted her to reside in the house of the deceased.

7. The appellant has taken plea of alibi which is not Crl.A.No.2134 of 2009 48 proved and such failure goes against the appellant.

8. According to the prosecution, the prosecution has succeeded in establishing the above circumstances and the trial court has rightly accepted the same and the appellant was found guilty. Therefore, there is no scope for any interference.

31. As we have already indicated, the learned senior counsel for the appellant vehemently submitted that the above circumstances relied on by the prosecution are not established properly, supported by admissible and legal evidence and according to the learned senior counsel for the appellant, even if those circumstances are taken as established, the same are not sufficient to form a complete chain of evidence pointing towards the guilt of the appellant and the prosecution has not succeeded in establishing the motive alleged for the commission of the crime.

32. It is now well settled that when the prosecution Crl.A.No.2134 of 2009 49 case depends upon the circumstantial evidence, in order to enter into a conviction, the court has to satisfy the following :-

"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 and there should not be any explanation for other hypothesis, except the guilt of the accused.

3) The circumstances should be of a conclusive nature and tendency.

4) The same should exclude every possible hypothesis except the 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."

Crl.A.No.2134 of 2009 50

33. Now let us consider, whether the available evidence and circumstances claimed to have been established by the prosecution are sufficient to satisfy the legal requirements settled through authoritative pronouncements. Before entering into a detailed discussion of the evidence and materials on record, we have noticed the fact that almost all the independent witnesses examined in this case, had turned hostile towards the prosecution on almost all material particulars. The relatives of the deceased also, turned hostile towards the prosecution. To establish the first circumstance, the prosecution has mainly depended upon Exts.P1 and P1(a) as well as the evidence of Pws.1 and 24. Admittedly, PW1 has no claim that he had seen any part of the incident or had witnessed the presence of the appellant at or near the place of occurrence. He had mentioned the name of the appellant in Ext.P1, only on the basis of his hearsay knowledge. So, the mentioning of the name of the Crl.A.No.2134 of 2009 51 appellant, either in Ext.P1 statement or in Ext.P1(a) FIR, has no much evidentiary value. PW1, the person who gave Ext.P1 statement, was also declared as hostile by the prosecution. So, the first circumstance sought to be established is not properly proved and even if the same is taken as proved, there is no legal consequence, beneficial to the prosecution.

34. To establish the 2nd circumstance, the prosecution mainly depends upon the evidence of Pws.2, 3 and 9. All the above witnesses were declared as hostile at the instance of the prosecution. On a close scrutiny of deposition of PW2, it can be seen that he had deposed that one person was seen running towards Kanjar side from the Community Hall area. CW3, who was examined as PW3, chased that person after obtaining a torch from PW2. It was his further version that he had heard hue and cry from the side of the Community Hall. In the meanwhile, PW3 came back and they proceeded towards Crl.A.No.2134 of 2009 52 the side of the Community Hall and had seen a person lying on the road and there were no other persons. PW2 has not identified the appellant as the person who was found running away. During the chief examination, as pointed out by the learned Public Prosecutor, PW2 admitted that after 3 days from the date of the incident, the Police showed to him a red coloured shirt and he identified the said shirt as the one worn by the person who was found running. Thus he identified MO1 shirt ; but during the cross examination, he deposed that he does not know the colour of the shirt that was worn by the person who was found running. During the cross examination, he admitted as correct that, the shirt shown to him by the Police was the shirt worn by the deceased. The above evidence of PW2 is not sufficient to hold that the appellant was found running from the place of occurrence where the deceased was found lying. The above evidence of PW2 found no corroboration with the Crl.A.No.2134 of 2009 53 evidence of PW3. When PW2 went to take black coffee from the mobile catering shop, PW3 and PW9 were present. According to him, it was PW3, who took torch from his hand and chased the person. But PW3 states that when PW2 had shouted "thief, thief.....", the time was between 1-2 a.m. and at that time he was standing beneath the building where he was working, after taking black coffee. But PW2 says that when he went for taking black coffee, Pws.3 and 9 were present in the mobile catering shop. PW3 has no case that he had chased the person, who was found running, after having obtained a torch from PW2. PW3 also has not identified the shirt alleged to have worn by the appellant. PW3 has not deposed about the place at which he had seen the appellant running. At the most, what he had seen is that a person was running towards Kanjar side. His evidence is also not sufficient to hold that the appellant was found running towards Kanjar side from the area of Community Crl.A.No.2134 of 2009 54 Hall. As deposed by PW2, PW3 has no case that he had chased any person who was found running. Though PW3 has stated that when himself and PW2 and others had reached at the place of occurrence, they found people gathered there, PW2 says that no one else was found at the scene of crime. During the cross examination, PW3 has stated that he did not see the appellant either at the place of occurrence or at the relevant point of time. At this juncture, it is also relevant to note that, though PW9 has admitted the presence of Pws.2 and 3, whose presence was also admitted by Pws.2 and 3, PW9 has no case that he had seen any person running at the relevant point of time, as claimed by PWs.2 and 3. So, the evidence of PW9 is also not helpful for the prosecution to prove the presence of the appellant at the relevant point of time at the place of occurrence. His evidence is not sufficient to corroborate the evidence of Pws.2 and 3. Thus, as to the place at which the appellant was allegedly found running, Crl.A.No.2134 of 2009 55 there is no conclusive evidence and the evidence on record, particularly the evidence of Pws.2, 3 and 9, are not corroborating each other. It is relevant to note that none of these witnesses, namely Pws.2, 3 and 9, had identified the appellant during their examination before the court. So, to prove the 2nd circumstance relied on by the prosecution, the evidence of Pws.2, 3 and 9 are insufficient and their evidence are not corroborating each other. The outcome of a close analysis of evidence of Pws.2, 3 and 9 is that, PW9 has not deposed about the presence of the appellant and the evidence of PW3 does not show that he had chased the person, who was found running at the place of occurrence, as claimed by PW2. When PW2 says that Pws.3 and 9 were present at the mobile catering shop where PW2 went for taking black coffee, the evidence of PW3 says that he was standing beneath the building where he was working and he did not see PW2 at that shop. When Pws.3 and 9 says that there Crl.A.No.2134 of 2009 56 were persons found surrounding the injured, PW2 says that no other person was present at the place of occurrence. So, the above evidence of Pws.2, 3 and 9 is in no way helpful to prove the presence of the appellant, as claimed by the prosecution and therefore it cannot be said that the prosecution has succeeded in proving the presence of the appellant with clinching and satisfactory evidence.

35. Another ground relied on by the prosecution to connect the appellant with the crime is the seizure of MO1 shirt and Ext.P11 OP ticket recovered from the pocket of MO1 shirt. From the evidence of Pws.2, 3 and 9, it can be seen that none of those witnesses had identified MO1 shirt as the one worn by the person who was found running away. No evidence is adduced by the prosecution to establish that MO1 shirt belonged to the appellant. PW15 has simply admitted his signature in Ext.P14 mahazar, by which, MO1 shirt was seized by the Police on 24.8.2006. Crl.A.No.2134 of 2009 57 But that evidence of PW15 or Ext.P14 are not sufficient to establish that MO1 shirt belongs to the appellant and the said shirt was seen by Pws.2, 3 or 9 as the one worn by the person who was found running away. It is true that Ext.P11 O.P. ticket was found from the pocket of MO1 shirt. At this juncture, it is relevant to note that the prosecution has not adduced any evidence to the effect that the appellant threw away MO1 shirt when he ran away from the place of occurrence after committing murder of the deceased. One of the points raised by the learned Public Prosecutor is that, Ext.P11 O.P. ticket was found from the pocket of MO1 shirt. It is relevant to note that the evidence of PW11, Maya-the daughter of the appellant, shows that she had consulted PW13, through whom Ext.P11 was proved as issued from Grace Clinic, Kanjar. But a close scrutiny of Ext.P11 would show that the date of first visit of the person, who consulted PW13, was on 7.8.2006. PW11 during her examination has Crl.A.No.2134 of 2009 58 deposed that at the time of her examination, Ext.P11 was not in her possession. She also admitted during the chief examination that Ext.P11 was in the possession of the appellant. But she did not identify the shirt worn by the appellant at the time of the occurrence. Admittedly, the incident in this case had occurred on 24.8.2006 ; but as per the endorsement in Ext.P11 O.P. ticket, the first visit of the patient was on 7.8.2006. We fail to understand how Ext.P11 O.P. ticket happened to be in MO1 shirt, which was allegedly seized on 24.8.2006, though the first visit as per the endorsement in Ext.P11 was as early as on 7.8.2006. The prosecution has no case that PW11 was taken to the hospital either on 24.8.2006 or on any nearby date after the first visit (ie., on 7.8.2006, as endorsed in Ext.P11). So, the date endorsed in Ext.P11 has got no nexus to justify the presence of OP ticket in MO1 shirt allegedly recovered on 24.8.2006. We have already observed that the prosecution has no case that the Crl.A.No.2134 of 2009 59 appellant has thrown away MO1 shirt after committing the crime, even if it is admitted for the sake of argument that the appellant had worn MO1 shirt at the time of the alleged occurrence. So, we are of the firm opinion that the seizure of Ext.P11 O.P. ticket from the pocket of MO1 shirt, which was seized on 24.8.2006, has no nexus to connect the appellant with the incident. At this juncture it is relevant to note that, PW11 has deposed that Ext.P11 was usually kept either by her grand father or her aunt, namely the wife of the deceased. She also deposed that Ext.P11 was obtained by the Police, from the hands of her grandmother. There is no re-examination on this fact that was brought out during the cross examination of PW11. So, the factom of seizure of Ext.P11 along with MO1 shirt is in no way crucial or helpful for the prosecution to connect the appellant with the alleged incident.

36. Another circumstance relied on by the prosecution is the recovery of MO6 knife which was Crl.A.No.2134 of 2009 60 already effected as per Ext.P15 recovery mahazar on the basis of Ext.P15(a) confession statement. PW16, the independent witness who is an attestor to Ext.P15, turned hostile towards the prosecution in this regard. It is true, PW20, who was then working as Grade Head Constable, has supported the prosecution case about the recovery of MO6 knife. Though the above interested evidence of a Police official is admitted for the sake of argument and though PW16, the independent witness, turned hostile towards the prosecution in this regard, we are of the view that, such a recovery is also not helpful for the prosecution. No attempt was made by the Investigating Agency to prove whether the human blood found in MO6 knife belonged to the blood group of the deceased and to show that the appellant had used the said knife for inflicting stab injury on the deceased. At this juncture it is pertinent to note that the prosecution has no case that any of the witnesses had seen MO6 knife in the hands of the Crl.A.No.2134 of 2009 61 appellant at any point of time. So, the mere recovery of MO6 knife, without the support of independent evidence, is not sufficient to connect the appellant with the alleged crime.

37. Another circumstance relied on by the prosecution to connect the appellant with the crime is the alleged absconding of the appellant immediately after the incident. According to the learned Public prosecutor, the appellant was available for arrest only after 6 months from the date of the incident and the absconding itself is an adverse circumstance that goes against the appellant and the appellant has no explanation for his absence. At this juncture, it is relevant to note that the wife of the deceased who was examined as PW10, has stated during her chief examination that for 3-4 months, the appellant was not available in station after the death of the deceased Sasi. She had seen the appellant after 6 months from the date of occurrence when he was released on bail. Crl.A.No.2134 of 2009 62 But during the cross examination she deposed that after the death of the deceased, for 6 months from the date of incident, the appellant and his children were residing in their own house at Parakkadavu in Thodupuzha. She also deposed that her mother used to visit that house regularly in every month. The above evidence of PW10 goes against the prosecution and shows that the appellant was available at his place of residence. It is pertinent to note that PW25, the Investigating Officer, has no case that the appellant had absconded and was not available for arrest. During the examination of PW25, he has not stated that the appellant was absconding. In the chief examination, he has stated that on 18.3.2007, the appellant was arrested from Kuruthikkulam. Connected with the arrest of the appellant, PW25 has not stated any steps taken previously to arrest the appellant, or, the steps taken by him to trace out the appellant, if he was absconding. The evidence of PW25 keep mum about the usual procedure Crl.A.No.2134 of 2009 63 that has to be adopted by a Police Officer to trace out an absconding accused in a serious case, like the present one. In the absence of any such positive evidence from the part of PW25, who is the Investigating Officer, it cannot be presumed that the appellant had absconded, particularly, when the wife of the deceased, PW10, says that the appellant was residing in his own house for the last 6 months prior to his arrest. In the absence of strong and reliable evidence that the appellant had absconded, we are unable to sustain the contention of the learned Public Prosecutor and to accept the circumstance pointed out by the learned Public Prosecutor against the appellant.

38. The most important circumstance pointed out by the prosecution is the motive on the part of the appellant to commit the murder of the deceased Sasi. According to the prosecution, while PW11-the daughter of the appellant was residing along with him, the appellant ill treated and harassed her. The mother of the child had committed Crl.A.No.2134 of 2009 64 suicide 10 years back. Because of the vexatious behaviour of the appellant, the deceased Sasi gave asylum to PW11 in his house. Against the pleasure of the appellant, she was permitted to reside there. The said act of the deceased provoked the appellant and aroused animosity against him. According to the prosecution, out of that animosity, the appellant committed murder of the deceased Sasi. But, absolutely no evidence is adduced by the prosecution to substantiate the above allegation. At this juncture it is relevant to note that the wife of the deceased is none other than the sister of the appellant and the aunt of PW11. PW11 during her examination in the court has deposed that she shifted her residence to the house of the deceased and her aunt, considering her convenience to attend the school. PW10 as well as PW11 denied the prosecution allegation that the appellant had ever attempted to vex PW11 or attempted to harass her sexually. Though PW11 had accepted asylum in the Crl.A.No.2134 of 2009 65 house of the deceased, we do not find any reason for the appellant to get provoked to do away with the deceased, unless the prosecution establishes genuine and reasonable grounds ; since the house of the deceased is also the house of the sister of the appellant, who is none other than the aunt of PW11. The facts connected with the alleged sexual harassment against PW11 at the instance of the appellant are not established. If that be so, it is for the prosecution to show the particular reason for the appellant to single out the deceased, sparing his wife, who is none other than the sister of the appellant, in committing the murder. So, the motive alleged by the prosecution to connect the appellant with the alleged commission of the offence is not proved and established.

39. Another circumstance put forward by the prosecution is that the appellant has miserably failed to prove and establish the plea of alibi taken by him. We are unable to sustain the above contention. During the 313 Crl.A.No.2134 of 2009 66 statement of the appellant, when he was asked as to whether he has to depose anything more, he stated that on 23.8.2006, his younger brother was admitted in Mulanthuruthi hospital connected with a surgery for appendicitis. Therefore, he was attending his brother. He stated that when he came to know about the incident, he came to the house and after seeing the body of the deceased, he went back to the hospital, where his younger brother was admitted. The above version of the appellant cannot be taken as a plea of alibi in strict sense. As per the version of the appellant, he has firstly explained the situation under which, he came to know about the incident. He has not put forward a strict case to the effect that he was not available in the locality either on 24.8.2006 or at the time at which the incident occurred, or, that he was unable to, or, was incapacitated to come at the place of occurrence, physically or otherwise. So, considering the above version of the appellant, it cannot Crl.A.No.2134 of 2009 67 be said that the appellant had taken a legal plea of alibi as his defence to get over the charge levelled against him. So, the contention of the learned Public Prosecutor, that the failure of the appellant to prove the plea of alibi, is a circumstance to be found against the appellant, cannot be sustained.

40. In the light of the above discussion and in view of the evidence and materials referred to above, we are of the firm opinion that, the prosecution has miserably failed to prove properly the circumstances referred to above and even if the circumstances so alleged are taken as admitted and established against the appellant, the same are not sufficient to form a complete chain, without any loop holes. The circumstances which are attempted to prove are not sufficient to establish the guilt of the appellant and to rule out any hypothesis consistent with the innocence of the appellant and not sufficient to show that in all human Crl.A.No.2134 of 2009 68 probability, the murder of Sasi, was committed by none other than the appellant. As the prosecution has miserably failed to establish its case against the appellant beyond reasonable doubt, it is incorrect and illegal to convict the appellant for the offence punishable under section 302 IPC and therefore we are unable to sustain the findings entered into by the court below and to confirm the conviction recorded against the appellant. Accordingly, the findings of the court below and the conviction recorded against the appellant vide the impugned judgment, are set aside.

In the result, this appeal is allowed, setting aside the judgment dated 10.7.2009 in S.C.No.436/08 of the court of IVth Additional Sessions Judge (Ad hoc-II), Thodupuzha, and the appellant is acquitted of all the charges levelled against him and he is set at liberty.

Crl.A.No.2134 of 2009 69

As we have allowed this appeal and the conviction and sentence imposed on the appellant are set aside, the appellant is entitled to get released from the jail forthwith, if his custody is not required in any other case. Therefore, the Registry is directed to forward the gist of this judgment forthwith to the Superintendent of the concerned jail, where the appellant is undergoing incarceration, for appropriate steps.

Sd/-

V.K.MOHANAN, Judge Sd/-

B.KEMAL PASHA, Judge ami/ //True copy// P.A. to Judge

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