Kerala High Court
Kasim vs State Of Kerala on 11 June, 2019
Bench: A.M.Shaffique, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941
CRA(V).No. 157 of 2013
AGAINST THE JUDGMENT IN SC 382/2010 of ADDITIONAL DISTRICT &
SESSIONS COURT (ADHOC-I), PALAKKAD DATED 07-11-2012
APPELLANT/PW10:
KASIM
S/O. MOHAMMED, AGED 58 YEARS, THOTTATHARA
VALIYAPARAMBIL HOUSE, POOLAKUNDU, OTTAPPALAM,
PALAKKAD DISTRICT.
BY ADVS.
SRI.P.K.MOHAMED JAMEEL
SRI.ABDUL SHUKOOR MUNDAMBRA
RESPONDENTS/STATE & ACCUSED 1 TO 4:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 SUJITH
S/O. MOHANA MENON, APPAKKATTIL HOUSE, LAKKIDI,
MANGALAM, PALAKKAD DISTRICT-678001.
Crl.Appeal (V) No.157/13
-:2:-
3 AKBAR
S/O. JALEEL, KALLARAKKAL VEEDU, EAST OTTAPALAM,
PALAKKAD DISTRICT-678001.
4 ASSAINAR @HASSAN
S/O. HYDER, NALAKATH VEEDU, MALAPPURAM.
OTTAPPALAM 678001.
5 SHAJAHAN
S/O.K.T.K. MUHAMMED, KOORATUTHODI HOUSE,
MALAPPURAM (DIED)
BY ADVS.
SMT.VARSHA BHASKAR (STATE BRIEF) FOR R4
SRI.C.A.NAVAS
BY SRI.P.M.RAFIQ FOR R3
SMT.PRAISHEEL PRAKASAM
BY SRI.P.VIJAYA BHANU (SR.) FOR R3
SRI.RAJIT
SRI.T.A.SHABEERALI
SRI.T.K.SASIKUMAR
SRI.VIPIN NARAYAN FOR R3
SR.P.P.SRI.S.U.NAZAR
THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN
FINALLY HEARD ON 8.03.2019, THE COURT ON 11/06/2019
DELIVERED THE FOLLOWING:
Crl.Appeal (V) No.157/13
-:3:-
JUDGMENT
Shaffique, J.
This appeal is preferred by the the victim Kasim who is the father of Nishad Babu the deceased herein, challenging the judgment of acquittal passed by the Additional District and Sessions Judge (Ad hoc-I), Palakkad Division dated 07/11/2012 in S.C. No. 382 of 2010 arising out of Crime No. 564 of 2007 of Ottappalam Police Station.
2. Prosecution case is as follows:
1st accused Sujith secured a visa from CW3 Ashraf through Nishad Babu (the deceased herein) on paying `1,00,000/- and he went to Gulf country. He did not get the job offered. He returned home within a month and thereafter approached Nishad Babu and demanded back the amount paid. However, the said demand was not responded positively. Due to the said enmity, on 18/10/2007 at about 05.00 P.M., accused who are four in number came to the barber shop of CW7 at Chunangad junction and from there, took Nishad Babu to a house compound of one Muhammed Kasim Crl.Appeal (V) No.157/13 -:4:- situated by the side of Chunangad mosque road in Ariyur Thekkumuri desom of Ottappalam-II Village in Ottappalam Taluk. At the courtyard of said house, in the course of an altercation, accused nos.1 to 4 in furtherance of their common intention and object, manhandled Nishad Babu and in the course of the said attack, accused no.2 stabbed him with a knife on his left thigh, left buttock, back and right upper arm and thereby caused grievous hurt and within an hour, Nishad Babu succumbed to the injuries in hospital. The accused were charged with offence under Section 302 read with 34 of the Indian Penal Code, 1860 (for short 'IPC').
3. To prove the case, prosecution examined PW1 to PW16 as witnesses, marked Exts.P1 to P18 documents and identified MO1 to MO9 material objects. After the closing of prosecution evidence, the accused were questioned under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). They pleaded innocence. DW1 was examined from the side of defence. Exts.D1 to D3 were marked as contradictions.
4. The evidence adduced can be summarized as under:
PW1, PW2 and PW8 were cited by the prosecution to prove that Crl.Appeal (V) No.157/13 -:5:- the deceased was last seen together in the company of the accused. PW3 is a witness to the seizure of the knife and dress of 2nd accused from the house of 2nd accused and he is an attestor to Ext.P1 recovery mahazar. Ext.P1(a) is the relevant disclosure statement of 2nd accused. PW4 is an attestor to Ext.P2 scene mahazar. PW5 is an attestor to Ext.P3 inquest report. PW6 is the then Civil Surgeon, Government Hospital, Ottappalam. He examined Nishad Babu on 18/10/2007 at 05.10 P.M. and issued Ext.P4 wound certificate. PW7 is the then Village Officer, Ottappalam Village No.II who prepared Ext.P5 site plan. PW9 is a relative of the deceased who was examined to prove motive for the crime. PW10 is the father of the deceased. He deposed about some previous incidents happened between the accused and deceased in connection with visa transaction. PW11 is a relative of the deceased. He deposed about the incident happened on the date of incident at 01.30 P.M. between the accused and the deceased. PW12 conducted the initial investigation. He conducted the inquest, prepared scene mahazar, seized blood- stained soil, pair of chappal etc,. MO4 series to MO9 are the items so seized. Ext.P8 is the arrest memo of 2 nd accused. Based on Crl.Appeal (V) No.157/13 -:6:- Ext.P1(a) disclosure statement of 2nd accused, he effected the recovery of MO1 knife and dress of the 2 nd accused from his house as per Ext.P1 mahazar. 1 st and 3rd accused were arrested on 21/10/2007 and Ext.P9 is the remand report. Ext.P10 is the property list prepared. Ext.P11 is the forwarding note for the same. Ext.P12 is the remand report of 2nd accused. Ext.P13 is the report indicating name and address of the accused. PW13 and PW14 continued the investigation. After registration of the case, 4th accused expired. Ext.P14 is his death certificate. Ext.P15 is the chemical analysis report. On completion of investigation, PW14 laid charge-sheet. PW15 is the then District Police Surgeon who conducted the autopsy of Nishad Babu. Ext.P16 is the certificate issued by him. Altogether 7 ante-mortem injuries were noted by him. PW16 was the S.I. of Police who recorded Ext.P7 statement of PW8 and registered Ext.P17 FIR on its basis. Ext.P18 series are the arrest memos of 1st and 3rd accused.
5. Learned counsel appearing for and on behalf of the victim argued that the Court below committed serous error in appreciating the evidence on record and arrived at a perverse, unreasonable and unjust finding in the case. The case of the Crl.Appeal (V) No.157/13 -:7:- prosecution which was otherwise proved and well-established was rejected on flimsy grounds. Even according to the trial Court, last seen theory is proved by the prosecution. The victim was taken away from the barber shop by the accused and within a few minutes the witnesses heard a loud cry of the victim and he was found with bleeding injuries on the road and surrounded by the accused. 2nd accused was carrying a knife on his hand. The injured was taken to hospital in the autorickshaw of PW8 who is a star witness of the prosecution. PW1 and PW2 corroborate his version. MO1 knife and dress worn by the 2nd accused at the time of incident was recovered from the house of the 2 nd accused on the basis of his disclosure statement. Court below ought to have believed the evidence of PW3 who was the attestor to Ext.P1 mahazar prepared for the said recovery. The motive for the commission of the crime is clearly established by the prosecution through the evidence of PW9 and PW10. The entire case was rejected on the basis of inconsistency in the blood group of the deceased and the blood group detected on the material objects recovered at the instance of the 2nd accused. The decision of the trial Court resulted in gross miscarriage of justice. Learned Crl.Appeal (V) No.157/13 -:8:- counsel sought for a reversal of the finding of the trial Court and argued for convicting the accused for offence under Section 302 read with 34 of IPC. He cited the following decisions of the Supreme Court to strengthen his arguments:-
(i) Jagaroop Singh v. State of Punjab [AIR 2012 SC 2600],
(ii) Kiriti Pal v. State of West Bengal [(2015) 11 SCC 178] and
(iii) State of Rajasthan v. Kashi Ram [(2006) 12 SCC 254].
6. Per contra, learned Senior counsel for the accused Sri.P.Vijaya Bhanu argued that Court below is fully justified in arriving at the present verdict. PW8, PW1 and PW2 are planted witnesses. FIR is ante-timed as the number of inquest report is mentioned in the said document which was purportedly prepared on the previous day of the preparation of Inquest. The alleged recovery was a stage show and the so called seized articles were produced before Court without sealing and that too after the lapse of many days. Most importantly, the blood group on the so called recovered material objects including MO1 knife and the Crl.Appeal (V) No.157/13 -:9:- blood group of the deceased are found to be different. Motive for the crime is assumed by the prosecution witnesses based on hearsay information. None of them have direct knowledge about the alleged visa transaction between the accused and the deceased. Court below had the opportunity to witness the demeanour of the witnesses and based on all those aspects, the learned Sessions Judge arrived at the conclusion and hence it need not be disturbed merely because another view is possible. He pleaded to dismiss the appeal filed by the victim. He placed reliance on the decisions of the Apex Court in Nankaunoo v. State of Uttar Pradesh [(2016) 3 SCC 317], Gokul Parashram Patil v. State of Maharashtra [AIR 1981 SC 1441] and decision of this Court in Benny Paul v. State of Kerala [2016 (2) KLT SN 27] to support his argument that the case on hand would not even be charged under Section 302 of IPC as the injury is allegedly inflicted on a non vital part of the body and the case could utmost be even charged with second limb of Section 304 of IPC.
7. There is no direct evidence in the case. Prosecution relies on circumstances to prove their case against the accused. Crl.Appeal (V) No.157/13 -:10:- Oral evidence of PW8 and other witnesses coupled with the medical evidence adduced by PW6 the Doctor who issued Ext.P4 wound certificate and PW15 the Doctor who conducted autopsy and issued Ext.P16 post-mortem certificate would prove that the person died is Nishad Babu and that his death was a homicide. PW15 deposed that he had noted the following ante-mortem injuries on the corpse of Nishad Babu during autopsy:
"1. Stab wound 4x1x11.5 cm, obliquely placed on front and inner aspects of left thigh, lower inner round cut end 18 cm above knee and 10 cm outer to midline inner aspect of thigh. The upper outer sharp cut end was 21 cm above knee, in midline front of thigh. The wound cut the skin and subcutaneous tissues underneath and penetrated all the muscles on inner aspect of the thigh, reaching the subcutaneous tissues on back of thigh. The wound cut the femoral artery in full thickness and femoral vein to more than two third of its diameter. The wound was directed backwards, to right and upwards. From the lower edge at 1.8 cm inner to the upper outer end, the wound extended downwards and inwards as a gaping incised wound (caused by drawing out of the weapon), 6x3 cm, progressively shallow to its lower inner sharp cut end at 13.5 cm above knee and 2.5 cm inner to midline front of thigh. At this lower inner wound, the wound had tailing for 0.4 cm.
2. Incised wound 2.8x0.4x0.2 cm, transversely oblique, on back of right upper arm, lower outer end 8 Crl.Appeal (V) No.157/13 -:11:- cm above elbow, at the border between back and outer aspects of arm. The upper back end was at 9 cm above elbow and 1.8 cm outer to midline back of arm. The ends of the wound were sharp cut. The wound cut the skin and the subcutaneous underneath and was directed upwards, to front and to left.
3. Incised wound 2.8x1x5.6 cm on back of buttock, obliquely placed with lower inner sharp cut end 5 cm outer to midline and 4 cm above the level of top of natal cleft. The upper outer round cut end was 7 cm outer to midline and 6 cm above the level of top of natal cleft. The wound cut the skin, subcutaneous tissues and left paraspinal muscles underneath and just penetrate the body of 3rd lumbar vertebra on its left side. The wound was directed upwards, to front and to right.
4. Superficial incised wound, 11 cm long, obliquely placed on back of left thigh, lower inner end 21 cm above knee in the border between back and inner aspects of thigh.
5. Incised wound 1.8x0.4x0.8 cm, transversely oblique on back of left thigh,lower outer sharp cut end at 21 cm above knee and 3 cm inner to border between back and outer aspects of thigh. The upper inner sharp cut end was 21.5 cm above knee and 4.5 cm inner to the border between back and outer aspects of thigh. The wound cut the skin and the subcutaneous tissues underneath and was directed upwards and to front. The wound had tailing for 3 cm, from the upper inner end, which was directed upwards and to right.
6. Contused abrasion 2x0.5 cm, on left side of neck, transversely oblique with lower front end at 3 cm below Crl.Appeal (V) No.157/13 -:12:- left ear lobule.
7. Superficial contusion 4x3 cm, on outer aspect of left upper arm, 12 cm above elbow."
According to him, the death of Nishad Babu is caused due to stab injuries to left thigh involving femoral artery and vein. Court below also rightly arrived at the said conclusion. But Court extended benefit of doubt to the accused based on evidence available and acquitted them. The crucial question to be looked into is whether prosecution proved beyond doubt that the accused herein caused the death of Nishad Babu as alleged.
8. First of all, this is an appeal preferred against judgment of acquittal by the father of the deceased. The primary task before us is to see, after going through the entire evidence placed before us, whether the verdict under challenge is unreasonable or perverse. Settled position of law restrains us from interfering on a judgment of acquittal merely because another view is possible in the matter in the light of available evidence.
9. The following are the circumstances relied on by the prosecution to establish the guilt and involvement of the accused in the crime:
Crl.Appeal (V) No.157/13-:13:-
i. Last seen theory - the deceased was last seen with the accused immediately before his death;
ii. Recovery of blood-stained weapon and clothes from 2 nd accused based on his disclosure statement; iii. Motive - There existed dispute with respect to the visa transaction between 1st accused and the deceased.
10. Out of these circumstances, Court below believed the evidence of prosecution showing last seen together theory. PW8, PW1 and PW2 were the material witnesses to prove that aspect. But the learned Sessions Judge was not inclined to believe other pieces of evidence especially that of recovery and motive. According to the Court below, chemical analysis report shows that MO1 knife had blood stains of 'A' group but the blood group of the deceased was 'AB+ve'. No other substantive evidence is available to prove that MO1 was the weapon of offence. According to PW8, he saw the 2 nd accused by the side of the deceased with a steel knife. However, MO1 produced in Court is an iron knife. Going by the evidence of PW8, his identification of the weapon (MO1) during investigation was prior to the seizure of it. Hence, the recovery is not free from suspicion. On analysis of Crl.Appeal (V) No.157/13 -:14:- entire evidence, trial Court came to the conclusion that though the deceased was last seen together with the accused just about half an hour before he was found injured, the motive and recovery evidence is not inspiring confidence and hence the accused are entitled for benefit of doubt. Now let's analyse the evidence on record thoroughly and in detail to see whether the conclusion of the Court is a reasonable or probable one or whether it is perverse or unreasonable.
11. PW8 is the key witness for the prosecution. He deposed that he is an autorickshaw driver by occupation. He is a close relative of Nishad Babu. On 18/10/2007 at about 04.00- 04.30 P.M., all the accused together approached him and hired his autorickshaw from Ottappalam railway station premises. He took accused to a barber shop at Chunangad junction - Ambalappara road. The autorickshaw was stopped at the opposite side of the barber shop. All the accused boarded there and 1 st and 2nd accused together went to barber shop and they came back with Nishad Babu. He was directed by the accused to wait there for a while and all the four accused along with Nishad Babu went through a by-lane i.e., Islamic nursery road deviating from the Crl.Appeal (V) No.157/13 -:15:- main road opposite to the barber shop. After about 15 minutes, he heard a hue and cry of Nishad Babu. He rushed to the spot in his autorickshaw through the Islamic nursery road and saw the accused and Nishad Babu in the courtyard of a semi-furnished house. Nishad Babu was seen lying on the ground in a pool of blood while accused were seen standing nearby and 2 nd accused was having a blood-stained knife with him. When he tried to take Nishad Babu to the autorickshaw, he was prevented by the accused and they commented that let him die there. In the meantime, as people were gathering there, all the four accused helped him to take Nishad Babu to the autorickshaw. Nishad Babu was laid in the platform and accused nos. 1, 3 and expired Shajahan sat in the back seat. 2 nd accused sat along with him on the driver seat carrying the knife. On the way to hospital, when the autorickshaw reached at the by lane leading to the house of 2nd accused, he directed to stop the vehicle. The vehicle was stopped and he alighted there with knife and went home. Thereafter, he drove the autorickshaw to Taluk Hospital, Ottappalam and after reaching there, when he went to meet the hospital staff, other accused disappeared. Nishad was Crl.Appeal (V) No.157/13 -:16:- pronounced dead by the Doctor. He informed the matter to relatives and went to the police station to lodge complaint. Ext.P7 is the FIS given by him. During cross-examination, PW8 clarified that after reaching hospital when accused disappeared, two autorickshaw drivers helped him to take Nishad Babu to hospital casualty. The autorickshaw driven by him was neither inspected nor seized by the police.
12. PW1 is a neighbour of Nishad Babu. He deposed that on the date of incident, while he was sitting in the barber shop along with some others, at about 04.00 - 05.00 P.M., 1 st and 2nd accused along with two others came there in an autorickshaw driven by PW8. 1st and 2nd accused came to the barber shop and met Nishad Babu who was there with them in the shop. Thereafter, they together went outside and left the place in the autorickshaw. Since Nishad Babu and accused are close friends, they did not find anything unusual. Later he came to know that Nishad Babu was murdered. During cross-examination, PW1 clarified that the barber shop is situated by the side of Chunangad junction - Ambalappara road which starts from Ottappalam - Palakkad State Highway and 50 metres from the Crl.Appeal (V) No.157/13 -:17:- said junction. The road leading to Islamic school is deviating from the opposite side of the barber shop.
13. PW2 deposed that the barber shop by name 'Friends' belongs to his father. On the date of incident, he was working in the barber shop. At about 04.15 - 04.30 P.M., Nishad Babu came to the barber shop. After some time, 1st and 2nd accused reached there in an autorickshaw and they came to the barber shop. Nishad Babu was called and he accompanied them. Two others were seen waiting outside the barber shop and all of them together were seen going towards the nearby road. During cross- examination, he denied having given Ext.D1 statement to police which shows that he saw them leaving the place in the autorickshaw.
14. Defence challenged the evidence of these witnesses especially that of PW8 alleging following grounds:
i. PW8 is a planted witness.
ii. Nothing is there to prove that he was an autorickshaw driver at the relevant time.
iii. His version that Nishad Babu who was of 5 feet and 4 inches height was taken to hospital on the platform of an Crl.Appeal (V) No.157/13 -:18:- autorickshaw having a length of 3.75 feet with three people sitting on the back seat is totally unbelievable. iv. Name of PW8 is not noted in Ext.P4 wound certificate which is the most contemporaneous document. It shows that he was not there with the party who took Nishad to hospital. v. PW8 has not given specific time of incident and his evidence regarding time is contradictory to other available evidence. vi. Evidence of PW1 and PW2 regarding the way Nishad Babu and accused allegedly left the barber shop is contradicting the version of PW8 as PW8 stated that all of them went walking through a by lane whereas PW1 and PW2 asserted that all of them together went to Ambalappara area in the autorickshaw.
vii. There is material discrepancy as far as place of occurrence are concerned.
15. The said arguments were rejected by the learned Sessions Judge citing reasons based on the evidence on record and the Court below was inclined to believe the version of PW8. Learned Sessions Judge believed the deposition of PW8 to conclude that he was an autorickshaw driver at the relevant time. Crl.Appeal (V) No.157/13 -:19:- Regarding the argument of the defence that it was impossible to take the injured in an autorickshaw as stated by the prosecution in this case is negated by the observations that evidence of PW6, the Civil Surgeon who examined Nishad Babu on 24/09/2005 at 05.10 P.M. deposed that the patient was in gasping stage and he died at 05.30 P.M. only. Since rigour mortis stage was not yet initiated, his legs could be bent as stated by PW8. Hence the argument of the defence that it was not probable to take the injured to hospital in the manner suggested by the prosecution is rejected. Non-mentioning of name of PW8 in Ext.P4 wound certificate also was found to be not that material by the trial Court. PW8 explained in his evidence that after reaching hospital, he went in search of hospital staff and in the meantime all the accused disappeared from the place and that two autorickshaw drivers were helping him to take Nishad Babu to casualty. PW6 was not even confronted with a suggestion on this point by the defence. Court rejected the said point of defence. Court further clarified that the evidence of PW1 and PW2 corroborate the version of PW8 to the extent that all the accused came together in PW8's autorickshaw and boarded in front of the barber shop Crl.Appeal (V) No.157/13 -:20:- and 1st and 2nd accused together went to the barber shop and returned with Nishad Babu on the evening of 18/10/2007 and all of them together went to the road. Court observed that from this point onwards, the evidence of PW8 and that of PW1 and PW2 are contradictory. PW8 stated that all of them went through a by-lane whereas PW1 and PW2 stated that all of them together went to Ambalappara area in the autorickshaw. With a remark that the said material discrepancy was not properly explained by the prosecution, Court below held that prosecution could clearly prove through the evidence of PW8 corroborated by PW1 and PW2 that the deceased was last seen together with the accused within hardly an hour prior to his death.
16. PW3 is the witness to the alleged recovery of MO1 knife and MO2 and MO3 dresses worn by the 2 nd accused. He deposed that the 2nd accused and his rented house is known to him. He saw the accused taking MO1 knife from the roof of the house (Era) and handing it over to PW12, the Investigating Officer. A cloth which was spread in the back cloth line was also taken and produced by the 2nd accused. Ext.P1 is the recovery mahazar for the same and PW3 is an attestor to it. He also Crl.Appeal (V) No.157/13 -:21:- identified MO1 knife, MO2 shirt and MO3 dhothi in Court. During cross-examination, he clarified that the said recovery was effected at about 10.00 A.M. He happened to go to the place seeing police party. He further clarified that rented house of 2 nd accused was a house with tiles and 2 nd accused was seen taking knife from the ERA on the top of the entrance step of the said house. He also clarified that he identified the knife as it was an iron knife with copper lining. The cloth seized was a green one. PW12 in his cross-examination, admitted that MO1 to MO3 were not sealed or packed separately. Though it were seized on 20/10/2007, it were produced before Court on 24/10/2007. As per seizure mahazar, the house of 2nd accused is a tiled house and it faces towards south. MO1 knife was seized from the roof of the veranda on the eastern side. MO2 and MO3 were kept on the back side of the house on the northern side spread in a cloth chord, taken and handed over by the 2nd accused.
17. Defence put serious objections on the recovery evidence adduced by the prosecution. According to the defence, the prosecution case and the evidence adduced by witnesses including PW3 and PW12 contradict each other as exact place of Crl.Appeal (V) No.157/13 -:22:- recovery is not made out. Further, the blood group of the blood stains found on MO1 to MO3 is 'A +ve' whereas the blood group of the deceased was 'AB +ve'. It is a clear contradiction which goes to the root of the prosecution case. Defence further argued that the authorship of concealment is not revealed in the alleged confession statement of the 2 nd accused. After considering the point in detail, the trial Court decided not to believe the version of PW3 as far as recovery of MO1 to MO3 are concerned. The grounds stated are that evidence of PW3 is contradictory to the prosecution case regarding exact place from where recovery was effected. According to PW3, it was from the roof on the top of the entrance of the house. But according to PW12, the Investigating Officer and as per Ext.P1 mahazar, knife was kept under the roof in the veranda on the eastern side. Also, according to PW3, he saw seizure of green coloured dhothi but what is produced before Court as MO3 is a white dhothi with a green lining. PW3 did not witness recovery and seizure of MO2 shirt.
18. Based on chemical examiner's report, oral evidence of PW15 the Doctor who conducted autopsy of the deceased and testimony of PW12 the Investigating Officer, Court below arrived Crl.Appeal (V) No.157/13 -:23:- at a conclusion that the medical evidence and chemical analysis report are not supporting the prosecution case. Chemical analysis report shows that MO1 knife contained blood stains belonging to 'A' group. PW15 Doctor who conducted the autopsy deposed that the blood group of the deceased was 'AB +ve' PW12 admitted that MO1 to MO3 were not separately sealed at the time of recovery and seizure on 20/10/2007 and it was produced before Court only on 24/10/2007. The prosecution tried to explain the discrepancy in grouping by saying that if sample collected is insufficient, chance of wrong grouping is likely to happen. But Court below rejected the said explanation on the ground that the said argument is not backed by any evidence in the form of opinion or no authority is cited on the point. Properties seized were not separately sealed nor it was produced before Court in time. In a case based on circumstantial evidence, these aspects go against the prosecution. Blood was not detected in MO2 as per Ext.P15 report. Grouping of blood stain on MO3 could not be identified for want of sufficient quantity. Based on all these, the trial Court arrived at a conclusion that it is doubtful whether MO1 was the weapon of offence used by 2 nd accused in the Crl.Appeal (V) No.157/13 -:24:- commission of the crime as alleged by the prosecution.
19. Another serious objection raised by the defence at the trial stage as well as before us is that the FIR is ante-timed. FIS is seen lodged at 06.00 P.M. on 18/10/2007 by PW8. It reached the Court on 19/10/2007 at 10.30 A.M. The Court is only 250 metres away from the police station. The FIR shows the inquest number. Inquest took place on 19/10/2007 between 08.30 and 10.30 A.M. Eventhough in Ext.P3 inquest report it is stated that inquest was conducted at 08.00 A.M. on 19/102007, inquest report reached the Court only on 24/10/2007. It was also argued in that in column no.11 of the inquest report, it was mentioned that the deceased was stabbed with a weapon. If in fact FIS was lodged and FIR was registered, a copy of it should have been with PW12 and in that case, in column no. 11 of Ext.P3, police should have written weapon of offence as knife.
20. Both these contentions are rejected by the Sessions Judge with valid explanation. It is in evidence that FIR which was lodged on 18/10/2007 at 06.00 P.M. reached the Court on next day morning at 10.30 A.M. The endorsement shows that a copy of FIR was given to PW8 on 18/10/2007 at 07.30 P.M. The Court was Crl.Appeal (V) No.157/13 -:25:- only 250 metres away from the police station. Evidence indicates that FIR was dispatched directly to the office and not before Magistrate. PW16 was not cross-examined on this point. So, the contention of inordinate delay assumes not much relevance. By the time, even according to the prosecution, the inquest was over and report was prepared. In the facts and circumstances of this case, merely because the number of inquest report is mentioned in FIR, it cannot be presumed that the document is fabricated or ante-timed. Inquest is not numbered. So, mentioning of inquest report number may be based on registers maintained by the police. There is no cross-examination on these aspects as well. Court below concluded that since FIR reached the office of the Court and was received at 10.30 A.M., the chance of FIS and FIR being prepared after preparation of inquest report is an impossibility.
21. Defence in lower Court further challenged the evidence of prosecution adduced to prove the place of occurrence. According to the accused, the place of incident is not exactly proved which should go against the prosecution and in favour of the accused. Court below rejected the said argument of Crl.Appeal (V) No.157/13 -:26:- the defence. Ext.P2 is the scene mahazar and Ext.P5 is the scene plan. Both these documents describe in detail the exact place of occurrence. Blood-stained soil and pair of chappals were seized as per Ext.P2 mahazar. PW12 clarified that the place of incident was not Chunangad junction. Said Chunangad junction is situated by the side of Ottappalam-Palakkad State Highway. From, Chunangad junction, the road deviates towards Ambalappara and from the said Chunangad junction-Ambalappara road, another road deviates from a distance of about 50 metres known as Islamic Nursery road and the place of incident is located by the side of the said road about 60 metres away.
22. As already mentioned, defence strongly challenged the proof of motive for the commission of the offence. Court below concluded that motive is not proved to the satisfaction of the Court. According to the prosecution, motive for the commission of the crime is financial issue relating to a visa transaction between 1st accused and the deceased. CW3 who allegedly arranged the visa could not be examined as he was not available. PW9 deposed that Nishad Babu introduced 1 st accused who was his friend to CW3 for visa and visa was arranged for Crl.Appeal (V) No.157/13 -:27:- `1,00,000/- Subsequently, 1st accused left to Gulf. But he returned since the job offered was not availed. It is the version of PW9 that later Nishad Babu contacted him and narrated the incident and told him that 1st accused is demanding back money. PW9 contacted CW3. CW3 invited 1st accused and Nishad Babu to Kozhikode and a mediation was held and it was agreed that `50,000/- would be returned and `15,000/- was paid then and there. For repaying balance amount of `35,000/-, three months time was fixed. It was thereafter the accused began to demand for `10,000/- more and was harassing. Nishad Babu used to telephone PW9 and narrate these incidents. During cross- examination, he stated that he had only hearsay information about the visa transaction. Except introducing Nishad Babu and 1st accused to CW3, he had no role. He was not a party to the mediation that allegedly took place. His version that on the date of incident, about 5 minutes before the actual incident Nishad Babu telephoned him is not found in his previous statement to police. PW8 and PW10 had also spoken to about the visa transaction, but all of them have only hearsay knowledge about the same. Though court below was inclined to believe the visa Crl.Appeal (V) No.157/13 -:28:- transaction and friendship existed between the accused and the deceased, the Court entertained doubt in prosecution evidence as to under what circumstance, after settling the matter on agreement to pay `35,000/- three months later, the accused approached Nishad Babu demanding money before the expiry of the stipulated time frame. Hence, motive is not free from shadow of doubt.
23. Apparently, this is a case which rests on circumstantial evidence. There is no eyewitness to the incident. A few circumstances like that the deceased was last seen in the company of the accused has been proved. But the Court below had observed that the recovery of the material objects does not inspire confidence in the Court and on the basis of sufficient materials, it was held that the recovery of material objects has not been proved to make it a believable or acceptable version. No corroboration also was found to the material objects so recovered on account of the disparity in Ext.P15 chemical analysis report with that of the blood group of the deceased. The Court below also expressed doubt regarding the weapon used and which was recovered. When it was found that all the Crl.Appeal (V) No.157/13 -:29:- circumstances in the case have not been conclusively established, and even the exact place of incident could not be found out, and the motive remains to be proved, we do not think that we will be justified in taking a different view. The Court below had placed reliance on sufficient material to arrive at a finding that certain circumstances relied upon by the prosecution had not been proved beyond reasonable doubt and when the acquittal is based on such a finding, we do not think that we will be justified in interfering with the said judgment.
Crl.Appeal is hence dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
ASHOK MENON
Rp //True Copy// JUDGE
PS to Judge