Kerala High Court
Ramanathan @ Raju vs The State Of Kerala on 19 January, 2016
Bench: P.Bhavadasan, V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 19TH DAY OF JANUARY 2016/29TH POUSHA, 1937
CRL.A.No. 1369 of 2011 (A)
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SC 275/2010 of ADDITIONAL SESSIONS COURT (ADHOC-I), KOTTAYAM
CP 65/2010 of J.F.C.M-I,CHANGANACHERRY
CRIME NO.58 OF 2004 OF KARUKACHAL POLICE STATION
APPELLANT(S):
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RAMANATHAN @ RAJU, S/O SIVARAMAN,
AGED 38 YEARS,
KAMARAJ STREET, KAMARAJ NAGAR,
MYLAZHI BHAGATHU, IRAVIPUTHOOR VILLAGE,
KANYAKUMARI DISTRICT,TAMILNADU.
BY ADVS.SRI.SHABU SREEDHARAN
SRI.C.K.PRASAD
SRI.T.S.ANURAJ
SRI.B.S.ROSHAN
SRI.C.R.SUGATHAN
RESPONDENT(S):
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THE STATE OF KERALA, REP.BY THE
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
CRIME NO.58/04 OF THE KARUKACHAL POLICE, KOTTAYAM DISTRICT.
BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-01-2016, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
P.BHAVADASAN &
RAJA VIJAYARAGHAVAN.V., JJ
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Crl.A.1369 of 2011
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Dated 19th January, 2016
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JUDGMENT
"CR"
Raja Vijayaraghavan.V.(J).
1.Whether the conviction of the appellant based on three circumstances, viz. (i). last seen together with the deceased (ii). presence of blood of unknown origin after two years of the date of occurrence on the alleged weapon of offence and (iii) alleged act of absconding by the appellant, can be sustained under law, is the substantial question which arise for our consideration in this appeal.
2.It would be convenient to state the prosecution case briefly at the outset itself:-
The appellant, Ramanathan @ Raju, a stone cutter by profession, was occupying a shop Crl.A.1369/2011 2 room in the building by name "Madhavam buildings" owned by PW4 - Rajasekhara Kurup. Deceased Baldas @ Marthandan was a Mason and he was staying along with his brothers and workers in an adjacent room in the same building. Both the accused as well as the deceased were natives of Tamil Nadu and they have been working in this area for the past several years. On 20.4.2004, 1st informant Kolappan, while on his way to work in the morning, inquired with deceased Baldas whether he was coming along for work. The deceased informed him that he would join the 1st informant later. At about 12.00 noon, the appellant rushed to the shop of PW2 - Manoj and informed him that Baldas was gasping for breath and was lying in his room and requested for his assistance. PW2 went with the accused and found that Baldas was lying on the floor. He was given some water to drink and he went and informed the matter to PW1. The accused was asked to fetch a vehicle Crl.A.1369/2011 3 and Baldas was shifted to the S.N.Hospital, situated nearby. PW1 and PW2 followed them in a scooter. On reaching S.N.Hospital, the doctor examined Baldas and he was directed to be taken to the M.G.D.M.Hospital, Kangazha. It was the accused who accompanied Baldas to the said hospital in a Jeep. Baldas was declared dead by PW7 - Dr.Elizabeth George, on his arrival.
3.Kolappan, the brother of the deceased Baldas, set the law in motion by furnishing the FI statement before PW12, the Head Constable of police, Karukachal police station, based on which Ext.P8 FIR was registered on 20.4.2004 u/s 174 of the Code of Criminal Procedure, under the head "unnatural death". It is relevant to note that at the time of lodging the FI statement, nobody suspected that it was a case of homicide. PW14, the Sub Inspector of police, conducted preliminary investigation and prepared Ext.P2 inquest Crl.A.1369/2011 4 report over the dead body of deceased Baldas. He also went to the scene of crime and prepared Ext.P10 mahazar detailing the scene and questioned some of the witnesses. The body was then sent for autopsy and it was PW8, the Associate Professor, Medical College Hospital, who conducted the postmortem and issued Ext.P4 certificate. No external injuries were found on the body and it was also found by the doctor that there was no external bleeding. However, the opinion as to the cause of death was that Baldas had died due to chest injury sustained. It appears from the records that the investigation was thereafter taken over by PW15, the Circle Inspector of police, Vakathanam police station. On 1.11.2005, PW15 questioned PW8, the doctor, who conducted autopsy, and appears to have arrived at a conclusion that an offence u/s 302 of the IPC was made out. On its basis, report dated 1.11.2005 adding S.302 of the IPC was submitted. By this time, Crl.A.1369/2011 5 more than 1 = years had elapsed after the commission of the crime and no one had any clue as regards the identity of the perpetrator of the crime. After PW15 took over investigation, he went to the scene and prepared Ext.P9 scene mahazar. Later, investigation was taken over by PW16 on 2.3.2006, his successor in office. On 8.3.2006, he recorded the statement of PW4 - Rajasekhara Kurup, the owner of the building, where both the deceased and the appellant had resided. PW16 procured the services of PW9 - M.K.Ajith Kumar, the Scientific Assistant and they inspected the room occupied by the accused in the "Madhavam buildings". MO1, grinding stone and MO2, granite plaque found in the room occupied by the accused were examined by PW9 and it was found that MO1 and MO2 contained presence of blood which was insufficient to ascertain the origin. Ext.P5 is the report issued by PW9. Thereafter, PW 16 is said to have inquired about the Crl.A.1369/2011 6 whereabouts of the accused. While matters were proceeding thus, on 29.4.2010, about six years after the occurrence, PW 17, the Circle Inspector of Vakathanam police station took over investigation. On 24.5.2010, the appellant was arrested at the Changanassery railway station and he was produced before Court and was remanded. Later, investigation was completed and final report was laid down before the jurisdictional Magistrate.
4.The learned Magistrate, before whom the final report was laid, took cognizance of the offence and finding that the offence was exclusively triable by the Court of Sessions, committed the case to the Court of Sessions, Kottayam. The learned Sessions Judge made over the case to the Court of Additional Sessions Judge, Kottayam for trial and disposal.
5.The Additional Sessions Judge, after Crl.A.1369/2011 7 complying with the formalities, framed charge for the offence punishable u/s 302 of the IPC. When the charge was read over, the accused pleaded not guilty and claimed that he be tried.
6.The prosecution examined 17 witnesses to prove the incident as PW1 to 17 through whom Exts. P1 to P10 were marked. MO1 and MO2 were produced and identified. On the side of the defence, Ext.D1 was marked. After the close of prosecution evidence, incriminating materials arising out of the prosecution evidence were put to the accused u/s 313(1)
(b) of the Code.
7.The accused, apart from denying the incriminating materials arising against him stated that he along with the deceased Baldas were residing in the same building. Baldas was in the habit of going for work at 8.00 am. According to the appellant,on the date of Crl.A.1369/2011 8 incident, while the accused was on his way to the common bathroom, situated near to the room of Baldas, he had occasion to see Baldas lying on the floor and gasping for breath. The accused entered the room and gave him some water to drink. The deceased was not responding to his queries. Immediately, he went and informed PW2, a neighboring shop owner, that Baldas was sick and requested for his assistance. The accused along with Manoj rushed to render assistance to Baldas. The accused was asked to fetch an autorikshaw in order to shift the deceased to the hospital. On his way to Pathanadu Junction, the accused informed PW1 that Baldas was sick and he was going to summon an autorikshaw. Several persons came to the shop room. The deceased was shifted to a nearby hospital and thereafter to the Kangazha hospital. Before reaching Kangazha hospital, the deceased had breathed his last. Baldas was brought back to his place of residence in the same jeep Crl.A.1369/2011 9 itself. Thereafter, the relatives and friends of the deceased, were informed about the incident. According to the appellant, he stayed at the place for two more weeks and thereafter, he went to place called Pothankallu. While working in the said area, he met with an accident and sustained some injuries and therefore, he had to go to his native place. After treatment, he returned back and requested PW4, the owner of the premises, to permit him to occupy the premises. PW4 did not give consent and asked him to remove his personal belongings. He had to return back to his native place. Thereafter in the year 2010, the police came to his native place and brought him back and implicated him in this crime. This in short is the explanation offered by the accused.
8.Finding that the accused could not be acquitted u/s 232 of the Code, he was asked to enter upon his defence. No defence Crl.A.1369/2011 10 evidence was adduced.
9.The trial Court, on evaluation of the evidence, came to the conclusion that the prosecution has successfully proved its case on the basis of three circumstances. They are
- (i).the accused was last seen with the deceased on the date of incident by PW1, a tailor, whose shop was situated about 50 ft towards the west. (ii). The blood was recovered from MO1 and MO2 which were found in the room occupied by the accused (iii).The accused had absconded from the scene after the commission of the crime. According to the learned Sessions Judge, the circumstances so proved were sufficient to come to the irresistible conclusion that it was the accused and accused alone, who was responsible for the acts committed which resulted in the death of Baldas and found the appellant guilty of the charge levelled against him. The appellant was convicted and Crl.A.1369/2011 11 sentenced to undergo imprisonment for life.
10.We have heard Sri.Shabu Sreedharan, the learned counsel appearing for the appellant and Sri.K.K.Rajeev, the learned Public Prosecutor at considerable length. The learned counsel took us in detail into the relevant evidence and the materials to substantiate their rival contentions.
11.The learned counsel appearing for the appellant would submit that the instant being a case depending upon circumstantial evidence, the prosecution has miserably failed to prove the circumstances satisfactorily to complete the chain of circumstances. According to the learned counsel, the prosecution has failed to establish conclusively the guilt of the accused in this case in a manner that rules out every hypothesis inconsistent with his innocence. According to the learned counsel, Crl.A.1369/2011 12 there were numerous missing links in the chain of evidence and the prosecution has attempted to connect the chain with the aid of manipulated materials resulting in manifest injustice. It was pointed out that the materials relied on by the prosecution to connect the accused with the crime was so intrinsically untrustworthy that no prudent person would place reliance on the same to convict a person for the offence u/s 302 of the IPC. The most serious charge leveled against the prosecution by the learned counsel appearing for the appellant was that the prosecution had suppressed and withheld vital materials and also manipulated scientific evidence to fix the culpability on the appellant. It was finally submitted by the learned counsel that the conclusions arrived at by the learned Sessions Judge were manifestly erroneous and arrived at without a complete and comprehensive appreciation of all relevant aspects of the case in its Crl.A.1369/2011 13 proper perspective. Expatiating further, the learned counsel submitted that the learned Sessions Judge misdirected himself in placing reliance on the "last seen theory" as it was based on a proven omission in the evidence of PW 1. As regards the allegation that the appellant had absconded, which was considered as a major circumstance by the learned Sessions Judge, it was submitted that it was the case of the prosecution that the appellant was the person who had gone with the deceased to various hospitals. The appellant was present at the time of inquest and his statement was also recorded by the police. By referring to the evidence of PW 1, 2 & 4, it was submitted that the appellant was present in the same area for several days after the incident and hence there was no question of the accused absconding from the place. The report adding S.302 of the IPC was submitted more than 1= years after the incident and the appellant being a stone Crl.A.1369/2011 14 cutter could not be expected to stay in the area. It was further submitted that reliance placed by the learned Sessions Judge on the detection of blood in MO1 and 2 was misplaced. According to the learned counsel, the incident had occurred on 20.4.2004. It was on 8.3.2006 that PW9 had examined the shop room of the appellant. According to the learned counsel, there was absolutely nothing before Court to conclude that the items found in the shop room belonged to the appellant, as admittedly the appellant had left the place after two weeks of the death of Baldas. According to the learned Counsel, when Ext.P2 inquest report and Ext.P4 postmortem rules out the presence of any external bleeding injuries or for that matter blood on the clothes worn by the deceased, it is inconceivable as to how blood could be detected in the alleged weapon of offence years after the occurrence. This, according to the learned counsel, reveals the falsity Crl.A.1369/2011 15 in the prosecution case and the devious attempt to rope in the appellant. The learned counsel would further submit that in a case based on circumstantial evidence, motive assumes a very important part. In the instant case, prosecution had no case whatsoever that the accused had any motive to do away with the deceased. The facts and circumstances would reveal that as the investigating agency was not able to find the actual culprit, the authorship of the crime was placed on the appellant. The learned counsel also highlighted the fact that the evidence of PW1 and 2, who were conducting shops near the scene of crime, reveals that the relationship between the accused and the deceased were cordial and further, the accused was a very mild mannered person. It was submitted that the reliance placed by the learned Sessions Judge on the above three obscure circumstances cannot be justified and the complicity of the accused could not be Crl.A.1369/2011 16 proved by the prosecution beyond the shadow of reasonable doubt. It was further submitted that the investigation of the case has been quite shabby and no proper endeavour was made by the investigating officers to fix the culpability on the actual culprit .
12.The learned Public Prosecutor opposing the contentions of the learned counsel for the appellant, would submit that the prosecution has successfully proved its case by placing on record overwhelming circumstantial evidence which found favor with the learned Sessions Judge. According to the learned counsel, the circumstances made out by the prosecution were cogent and convincing and the learned Sessions Judge has considered these aspects elaborately and have given cogent and convincing reasons with regard to the conclusions arrived at. The last seen together theory would squarely apply on the facts of the instant case more so when, PW1 Crl.A.1369/2011 17 had found them together, immediately prior to the incident. The presence of blood in MO1 and MO2 was a formidable piece of evidence which would link the appellant with the crime. Further, it has come out that the appellant had absconded from the area which fact would also unmistakably point the finger of suspicion at the accused. According to the learned Public Prosecutor, all circumstances taken together would go to establish the guilt of the appellant beyond any reasonable doubt leaving no room for any other hypothesis except the guilt of the accused and is was strenuously contended that the appeal deserves to be rejected.
13.After having heard the respective counsels in extenso, we shall remind ourselves of the principles which should guide and weigh with the Courts administering criminal justice while dealing with a case based on circumstantial evidence. These principles Crl.A.1369/2011 18 have been succinctly laid down by the Apex Court and has been reiterated time and again. Before making an endeavour to appreciate the rival contentions, we shall remind ourselves of the principles.
14.In Vasanta Sampat Dupare v. State of Maharashtra (2015 (1) SCC 253) a three Judge Bench of the Apex Court has reiterated the principles in these lines :-
[34]. Regard being had to the aforesaid circumstances, it is to be seen whether on the basis of the said circumstances, it can be held whether such circumstances lead towards the guilt of the accused regard being had to the principle that they lead to a singular conclusion that the appellant is guilty of the offence and it does not allow any other probability which is likely to allow the presumption of innocence of the accused. In this context, we may refer with profit to the decision rendered more than six decades back in Hanumant Govind Nargundkar v. State of M. P., AIR 1952 Crl.A.1369/2011 19 SC 343 : 1953 CriLJ 129 wherein it has been held as follows: (AIR pp. 345-46, para 10) "10. ... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
[35]. In Sharad Birdhichand Sarda v. State of Maharashtra, 1984 (4) SCC 116:
1984 SCC (Cri) 487 the five golden principles which have been stated to constitute the "panchsheel" of the proof of the case based on circumstantial evidence are:
(i) that the circumstances from which Crl.A.1369/2011 20 the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established;
(ii) that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) that the circumstances should be of a conclusive nature and tendency;
(iv) that they should exclude every possible hypothesis except the one to be proved; 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.
15.The learned trial Judge adverted to the following circumstances said to have been shown against the appellant to establish his guilt.
(a). the appellant was last seen with deceased Baldas at 11.00 a.m on 20.4.2004 by Crl.A.1369/2011 21 PW1 and they were talking loudly.
(b).MO1 and 2 found inside the room occupied by the appellant at the "Madhavam buildings"
on chemical examination revealed the presence of blood.
(c).the appellant had absconded from the area after the commission of the crime.
16.As regards the homicidal death of the accused there is no dispute from any quarters. It has come out in evidence that on 21.4.2004, PW14, the Sub Inspector of Police had prepared the inquest over the dead body of the deceased and had issued Ext.P2 report.
17. It was PW8, Dr.Abraham Daniel, the Associate Professor attached to the Medical College hospital who had conducted the autopsy on the deceased Baldas. He had noted six ante mortem injures in Ext.P4 certificate prepared by him. The following are the ante mortem injuries.
Crl.A.1369/2011 22
INJURIES (ANTE MORTEM)
(i). Contused abrasions 6x3 cm on the top of right shoulder.
(ii). Contused abrasion 1.5x1cm on the centre of chest 1.5cm below supra sternal notch.
(iii). Contused abrasion 2.5x2cm on the right side of chest 4cm inner to midline and 9cm below collar bones.
(iv). Contused abrasion 2x1cm on the inner side of right elbow.
(v). Fracture of all ribs on both sides. Many ribs showed multiple fractures. Sternum was fractured horizontal at upper part of body. Both clavicles showed fracture and dislocation. Both lungs showed contusions and lacerations. Both chest cavities contained blood 400 ml and 500 ml in each.
(vi). Scalp was contused on the front and back of head skull was intact.
Brain showed mild diffuse sub arachnoid haemorrhage.
Crl.A.1369/2011 23
18.He opined that the deceased had died due to chest injury sustained. According to him, injury No.2, 5 and 6 were grievous and sufficient in the ordinary course of nature. In cross examination, the witness stated that no lacerated external injury was noted by him. He also deposed in no uncertain terms that there was no bleeding injuries on the body of the deceased.
19.On the basis of the above evidence, we have no doubt in our mind that deceased Baldas had died a homicidal death as a result of the injuries inflicted on him on 20.4.2004.
20.The next and more important question is as to who had perpetrated the heinous crime. As the case hinges on circumstantial evidence, and in view of the emphatic assertion by the learned counsel as regards the falsity of the prosecution case, it becomes necessary to Crl.A.1369/2011 24 find out whether the learned trial Judge has really made an endeavor to find out whether each and every incriminating circumstances has been clearly established by reliable and clinching evidence. Though the crime may appear to be gruesome and some suspicion may be entertained as regards the involvement of the appellant in the crime, the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused till the charges against him are proved beyond reasonable doubt. The same can only be done on the basis of clear, cogent, credible and unimpeachable evidence. It has been time and again laid down by the Apex Court as well as this Court, in a number of binding precedents, that the question of indicting or punishing an accused does not arise merely on the heinous nature of the crime or the brutal manner in which the same was committed. Suspicion however strong cannot take the Crl.A.1369/2011 25 place of proof. There cannot be an effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge greater should be the standard of proof required.
21.In view of the contentions raised by the learned counsel and taking note of the circumstances relied on by the learned Sessions Judge to enter upon the finding of conviction we have meticulously gone through the evidence of witnesses and also the materials produced by the prosecution.
22.The first circumstance relied on by the prosecution is based on the "last seen together theory". The learned Sessions Judge had at his command the solitary evidence of PW1 alone for arriving at the conclusiveness of the above circumstance. PW1 - Rajakumaran Nair was a tailor and he deposed that he is acquainted with the deceased and the accused. Crl.A.1369/2011 26 He would state that deceased Baldas is a mason and he was residing in a building belonging to PW4 - Rajasekhara Kurup about 75 ft away from his tailoring shop. The accused was residing in an adjacent room in the same building. Both the accused and the deceased are natives of Kanyakumari District. He had occasion to see the deceased and the accused walking together, on the date of incident at 11.00 a.m, and they were talking loudly. It was for the said reason that his attention was drawn towards them. After sometime, PW2 - Manoj came to his shop room and informed that Baldas was lying unconscious in his room. He along with Manoj went to the room where Baldas was residing, and found that Baldas was lying unconscious. It was thereafter that the deceased was shifted to the hospital accompanied by the accused and PW 1 and 2 merely followed them in their bike. He also deposed that the accused was present in the same area for a few more days. While Crl.A.1369/2011 27 appreciating the evidence of the said witness it has to be taken note of the fact that the witness had no case when his statement was recorded by the police u/s 161 of the Code that he had occasion to see the accused and the deceased walking past his shop room about half an hour prior to the alleged time of occurrence. This omission from his previous statement in writing was brought out by the appellant while cross examining the witness. This is a material omission and we are of the view that the learned Sessions Judge was not justified in relying upon this part of the evidence of the witness to conclude that the prosecution had succeeded in proving that the accused was last seen in the company of the deceased. It is also pertinent to take note of Ext.D1 contradiction brought out in the evidence of PW1 to the effect that it was the accused who had informed him that the deceased was lying unconscious in his room . Crl.A.1369/2011 28
23.A reference to the evidence of PW2 would also be apposite at this juncture. PW2 was running a stationery shop quite near to the place where the deceased and the accused were residing. PW2 would state that on the date of occurrence, the accused had come to his shop room and informed him that Baldas was lying on the floor and was gasping for breath. He immediately went with the accused and found that Baldas was lying on the floor of his room. Baldas was given some water to drink and thereafter, PW2 went and informed PW1. In cross examination, PW2 would say that deceased was in the habit of picking up quarrel with his employees who, according to the prosecution, were residing in the same room. He also deposed that the accused was a mild mannered person and he had no occasion to suspect anyone. It is pertinent to note that PW1 and 2 are rustic witnesses and their evidence appear to be natural and convincing and an evaluation of evidence of PW1 & 2 Crl.A.1369/2011 29 would reveal that it was the accused who had informed them about the fact that the deceased was lying in his room. It was the accused who had taken active part to shift the deceased to the hospital. It is also revealed from the materials that accused was even present at the time of preparation of inquest.
24.Ext.P6 scene plan and the scene mahazar would reveal that the shop room taken on rent by the appellant faces the southern road and that on the western side of the shop room there is passage towards the north. The room occupied by the deceased is situated on the north western side of the building. The common bathroom is situated just to the eastern side of the room occupied by the deceased. The specific case of the appellant is that he had seen the deceased lying on the floor and gasping for breath when he was on his way to the bathroom. After appreciating Crl.A.1369/2011 30 the sequence of events and the evidence of PW1 and 2, we are of the view that the version of the appellant is quite probable.
No evidence has been let in by the prosecution that the appellant and the
deceased was alone in the building at the material point of time , as it has come out from the evidence that several others were also residing in the room of the deceased.
25.It is trite that the "last seen theory"
holds the Courts to shift the burden of proof to the accused and the accused has to offer a reasonable explanation as to the cause of death of the deceased. It is well settled that it is not prudent to base the conviction solely on "last seen theory". "Last seen theory" can only be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen.
Crl.A.1369/2011 31
26.The evidence of PW 1 and 2 coupled with the omission and contradiction brought out in the evidence of PW1, according to us, would explode the "last seen together theory"
propounded by the prosecution and placed reliance of by the learned Sessions Judge to base the conviction.
27.The next circumstance relied on by the learned Sessions Judge is the presence of blood in MO1 and 2. MO1 is a grinding stone and MO 2 is a granite plaque. The crime which took place on 20.4.2004 was initially investigated by PW14. He conducted inquest over the dead body at 9.00 a.m on 21.4.2004. and thereafter the body was sent for autopsy. At 12.35 p.m on 21.4.2004, post mortem was conducted and Ext.P4 post mortem certificate was issued by PW 8, which revealed in unmistakable terms that it was a case of homicide. PW5 would state that he recorded Crl.A.1369/2011 32 the statement of CW4 and 6 and thereafter investigation was taken over by Rajappan Asari, another Sub Inspector. The aforesaid Rajappan Asari has not been examined by the prosecution. We then have the evidence of PW15, the C.I of police, Vakathanam, who took over investigation on 1.11.2005. After taking over investigation, he questioned PW8, the doctor who conducted autopsy and it was then that he formed an opinion that it was a case of murder. He is said to have received a report to that effect. No such report has been produced before Court. What is even more suspicious is that Exhibit P 4 postmortem certificate issued on the next day clearly revealed that it was a case of homicide. PW15 thereafter questioned CW2 and 7 and also prepared Ext.P9 scene mahazar. No report revealing the complicity of the accused was submitted before Court even by the said Officer though more than 1= year had elapsed by then. Thereafter investigation was taken Crl.A.1369/2011 33 over by PW 16,the Circle Inspector of Police, Vakathanam, on 2.3.2006. He questioned PW4, the owner of the shop room on 8.3.2006. Thereafter, he procured the assistance of PW9, the Scientific analyst and conducted the examination of the shop room earlier occupied by the accused. According to PW16, examination by PW9 revealed the presence of blood in MO1 grinding stone and MO2 granite plaque found in the room. Ext.P5 is the scene examination report. Ext.P5 reveals that at the instance of PW16, the Scientific Assistant had conducted examination of the scene of occurrence of the crime. As to how the room of the accused which was facing the road is characterized as the scene of occurrence, is a mystery as the deceased was found lying in his own room after receiving fatal injuries on his chest. It is inconceivable to believe that the accused had carried the grinding stone and the granite plaque to the room of the deceased situated Crl.A.1369/2011 34 at the northern end of the building through a passage, inflicted the injuries and returned back with the heavy stones stained with blood and placed it inside his room. Further more, Ext.P5 reveals that the inspection was conducted on 8.3.2006 about 23 months after the date of occurrence. This creates doubt in our mind as to the genuineness of Ext.P5.
28.What makes the case of the prosecution even more murky is the emphatic assertions in Ext.P2 inquest report and Ext.P4 post mortem certificate. Ext.P2 inquest conducted by PW 14 on 21.4.2004 does not reveal the presence of blood on the body of the deceased or on his clothes. Only some contusions were found on the body of the deceased. PW8, Dr.Abraham Daniel, who conducted the post mortem and issued Ext.P4 post mortem certificate stated unequivocally that no lacerated external injury was found on the body of the deceased. He went on to depose that no external Crl.A.1369/2011 35 bleeding was found. If that be the case, it does not stand to reason or common sense that blood was detected in MO1 and 2 about 2 years after the date of occurrence. There is every reason to suspect that evidence was manipulated to connect the accused with the crime. Clearly the accused was not occupying the premises and the contention of the appellant that evidence was planted in his absence cannot also be ruled out. To add to the woe, the prosecution has no case that the appellant had used MO2, granite plaque, to cause fatal injuries on the body of the deceased. These aspects will deal a fatal blow to the prosecution case.
29.The learned Counsel for the appellant is justified in contending that the materials reveal that the appellant was targeted and the evidence tailored to secure the conviction of the appellant. The learned Sessions Judge has overlooked the serious Crl.A.1369/2011 36 infirmities in the prosecution case by adopting a very superficial approach. Being a grave crime resulting in extremely serious consequences a more serious consideration was warranted.
30.The next circumstance relied on by the learned Sessions Judge is that the appellant had absconded from the area after the commission of the crime . Before we deal with this circumstance it has to be borne in mind that abscondance is in fact a relevant evidence, but its evidentiary value depends upon the surrounding circumstances, and hence, the same must only be taken as a minor item in evidence for sustaining conviction. (See: Paramjeet Singh @ Pamma v. State of Uttarakhand (AIR 2011 SC 200) and Sk. Yusuf v. State of West Bengal (AIR 2011 SC 2283).
31. Both PW 1 and PW 2, whose evidence we have already gone into, had stated in unmistakable Crl.A.1369/2011 37 terms that the accused was the person who had accompanied the deceased to the various hospitals. After Baldas was declared dead, the deceased was brought back in the Jeep by the appellant. It was the appellant who had informed the first informant about this unfortunate incident. It is the case of the prosecution that the appellant was questioned during the preparation of Inquest. PW 1 stated that the appellant was present in the area for some more days after the incident. PW 2 stated that the accused was seen in the area for a week. The accused in his 313 statement stated that he used to work in the same area for two more weeks and after that he had gone to Pothankallu.
32.It will be apposite to refer to the evidence of PW4 at this juncture. According to PW4, the accused was occupying the same premises for a few more days after the date of occurrence. It is further deposed by the said Crl.A.1369/2011 38 witness that about four months after the date of incident, the accused had returned back and requested him to provide the room for the purpose of his business. He did not accede to the request of the accused. The evidence of PW4 justifies the assertion of the appellant in his 313 statement that he had absolutely no reason to abscond and he had returned after a few months to the area and had requested PW4 to permit him to use his premises which was declined. PW4 also admitted in cross examination that he was aware of the fact that the accused had sustained injuries and he had returned after four months after undergoing treatment. The evidence of PW 1, 2 and 4 clearly brings out the hollowness of the prosecution case that the appellant had absconded. The findings of the lower Court in this regard cannot be supported in view of the above aspect.
Crl.A.1369/2011 39
33.We also agree with the contention raised by the learned counsel appearing for the appellant that in the case on hand, prosecution has absolutely no case that the accused had any motive to do away with the deceased. The learned counsel relied on the judgment in R.Shaji v. State of Kerala (AIR 2013 SC 651) wherein the Apex Court in para 19 held as follows:-
Motive is primarily known to the accused himself and it therefore, it may not be possible for the prosecution to explain what actually prompted or excited the accused to commit a particular crime. In a case of circumstantial evidence, motive may be considered as a circumstance, which is a relevant factor for the purpose of assessing evidence, in the event that there is no unambiguous evidence to prove the guilt of the accused. Motive loses all its significance in a case of direct evidence provided by eye - witnesses, where the same is available, for the reason that in such a case, the absence or inadequacy of motive, cannot stand in the way of conviction. However, Crl.A.1369/2011 40 the absence of motive in a case depending entirely on circumstantial evidence, is a factor that weighs in favour of the accused as it "often forms the fulcrum of the prosecution story". (Vide: Babu v. State of Kerala, 2010 KHC 4568 : 2010 (9) SCC 189 : 2010 (2) KLD 327 : 2010 (8) SCALE 185 : ILR 2010 (4) Ker. 1; Kulvinder Singh and Another v.
State of Haryana, 2011 KHC 4374 : AIR 2011 SC 1777 : 2011 (2) KLT SN 83 : 2011 (5) SCC 258 : 2011 CriLJ 2633; Dandu Jaggaraju v. State of A.P., 2011 KHC 5074 : AIR 2011 SC 3387 : 2011 CriLJ 4956.
(emphasis supplied)
34.After evaluating the case in its entirety, we are of the view that patently insignificant things have been magnified beyond proportion but serious lapses in the investigation and introduction of blatantly manipulative evidence has been glossed over by the learned Sessions Judge to enter upon the finding of guilt. We are reminded of the warning addressed by Baron Alderson to the Jury in Reg V Hodge [(1838) 2 Lewin 227], Crl.A.1369/2011 41 which was reiterated by the Apex Court in the classic case of Hanumant Govind Nargundkar and another V State of Madhya Pradesh ( AIR 1952 SC 343).
In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge, (1838) 2 Lewin 227) where he said :
"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead, itself to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete." Crl.A.1369/2011 42
35.We are of the view that the extremely doubtful and suspicious nature of the evidence placed by the prosecution before the trial court suffer from serious infirmities. The three major circumstances cannot by any stretch of imagination be said to be conclusive to arrive at a conclusion that it was the appellant and the appellant alone, who has perpetrated the crime. The various circumstances stood seriously undermined by other evidence let in by the prosecution itself, and one militates against the other. The chain of circumstances have been irreversibly snapped and it has thus become difficult, nay impossible, to legitimately presume the guilt of the appellant. It is obvious that these aspects have not been considered by the learned Sessions Judge . We firmly are of the view that the appellant has been roped in merely on suspicion and the story of the prosecution, built on the materials placed, neither seems to be the Crl.A.1369/2011 43 truth nor wholly the truth, and therefore the finding of the learned Additional Sessions Judge cannot be upheld by us and the same is therefore overturned.
36 . The appeal is allowed. The conviction and sentence passed by the Court below as against the accused for the offence u/s 302 of the IPC are set aside. The appellant stands acquitted of all the charges levelled against him. He shall be released from prison forthwith, if not wanted in any other case.
Sd/-
P.BHAVADASAN Judge Sd/-
RAJA VIJAYARAGHAVAN.V. Judge Mrcs/19.1.2016 //True Copy// P.S To Judge