Vijayan @ Jayan vs Stateof Kerala on 27 February, 2013

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Kerala High Court

Vijayan @ Jayan vs Stateof Kerala on 27 February, 2013

Appeal is against the judgment of conviction and order of sentence passed under Section 302 IPC against the accused/appellant in S.C.No.817 of 2012, dated 27.2.2013, of the Additional Sessions Judge Ad hoc II, Thalassery.

2. During the odd hours of the night of 25.2.2012 (at about 1.30 a.m.), the accused approached an old lady, aged about 80 years, Chellakka, to satisfy his lust while she was sleeping in the varanda of the building, bearing Door No.X/726 of Kelakom Panchayat, situated on the eastern side of Pooovathumchola - Kelakom Public Road and took her forcefully in an engineering workshop situated 20 metres away, bearing Door No.VII/865(A) and attempted to commit rape. In that attempt, he caught hold on her neck and strangulated her and the dead body was kept under a nearby culvert. Hence the accused was prosecuted for the offence under S.511 of 376 and 302 IPC. The learned Sessions Judge Crl. Appeal No.1623 of 2013 :: 2 ::

found the accused guilty of the offence punishable under S.302 IPC, relying on the oral evidence of PW4, PW5, PW7, PW8, PW14 and PW15, the recovery of MO1, MO2, MO17 and MO18, the medical evidence adduced through PW6 and Ext.P6 postmortem examination report, and acquitted the accused of the offence under S.511 of 376, by the impugned judgment and sentenced to undergo imprisonment for life for the offence under S.302 IPC.

3. There is no eye witness to the alleged incident and hence the prosecution heavily relied on the circumstantial evidence brought out through the prosecution witnesses and the documents produced.

4. The dead body of the victim was found under a culvert near the milk society in the Kelakom Poovbathumchola road by 2 p.m. on 25.2.2012 by one Ashokan, who immediately telephoned PW1, the member of Kelakom Grama Panchayat. On getting information, PW1 came to the place wherein the dead body was found lying and saw the dead body. Thereon, he went to the police station and gave Ext.P1 FIS.

Crl. Appeal No.1623 of 2013

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5. PW2 was examined by the prosecution, who deposed that he had seen a bag and a stick lying scattered in front of his oil mill on 25.2.2012 at 8 a.m., along with some old clothes. He took those things and threw over the compound wall on the southern side. It is thereafter, he came to know about the dead body found lying under the culvert. On getting information, he went to the culvert and saw the dead body and intimated the police with respect to the clothes, bag and stick found scattered in front of his shop (mill) and the removal of the same by him to the back of the southern compound wall.

6. PW3, a carpenter, was also examined by the prosecution to prove that the victim used to sleep in the veranda of the shop and the stick involved in the case belonged to Chellakka, the victim. He had also identified MO1 to MO16, the articles which were taken by the police from the place near to the place of occurrence under Ext.P2 mahazar including a purse containing the photo of the accused.

7. PW4, an autorickshaw driver, was also examined by the Crl. Appeal No.1623 of 2013 :: 4 ::

prosecution to prove the recovery of MO17 stick under Ext.P3 mahazar at the instance of the accused. It was recovered from a place situated 5 metres away from the Kadayam Oil Mill. MO18 dothi as that of the accused was also recovered under Ext.P4 mahazar from 200 metres away from the culvert, from a bush.

8. PW5 is the proprietor of the engineering workshop, M/s.Modern Engineering Body Works, Kelakom. He knows both the accused and the victim. The dead body of the victim was fround beneath a culvert on 25.2.2012. The accused had shown to the police the place of occurrence on 5.3.2012 at 11 a.m. This workshop has only one room, but it has no doors and PW5 is doing the body work of autorickshaw by providing a cutting drill and two welding machines. It is really an open shed.

9. PW7 is the wife of the accused who identified MO3 lunky, MO4 thorth, MO9 iron leaf used for cutting and pealing arecanut, MO16 knife, MO12 purse containing photograph of the accused as that of her husband, the accused herein. She had also identified MO1,MO2 and MO15 as the belongings of deceased Chellakka. Crl. Appeal No.1623 of 2013

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She had also identified MO6 bag as the one owned by her husband. She deposed that MO16 knife was taken by her husband from her house. PW8 is the brother of the deceased, who identified MO1 and MO2 lunky and dothi belonged to his sister Chellakka and also identified MO17 stick belonged to his sister, the victim herein. PW6 is the Professor of Forensic Medicine and Police Surgeon, who conducted autopsy on the body of the deceased and issued Ext.P6 postmortem examination certificate. The ante-mortem injuries noted by the doctor are the following:

"B. Injuries (ANTEMORTREM):-

1. Fracture of 2-6 ribs on the right side, at their angles.

2. Fracture of 2-8 ribs on the left side at their angles.

3. Fracture of the sternum just below the manubrium.

4. On flap dissection under a bloodless field, the subcutaneouys tissues at the floor of the mouth showed a contusion 1.5x1 cm, just inner to the right submandibular salivary gland. Thyroid cartilage showed a fracture just below the right superior horn, with infiltration of blood around. There was infiltration of blood in the left carotid sheath also. Hyoid boneand muscles were intact." Crl. Appeal No.1623 of 2013

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10. The deceased had tuberculosis and no injuries were seen on the external genitalia. The Doctor opined that the deceased died due to blunt violence applied on the neck and this could be a case of strangulation. The fracture to the ribs, according to him, could be caused by lying over the chest of the deceased with force. He could not rule out the possibility of sexual assault, though there were no injuries on the external genitalia. It is also opined by the Doctor that the fractures of the ribs can be caused by fall on a rough surface.

Potency test of the accused was conducted by PW12 Doctor and Ext.P8 potency certificate was issued. PW15 is the Village Officer who proved Ext.P10 and Ext.P10(a), two scene plans showing the place of occurrence as well as the place wherein the dead body was found lying. Inquest on the body was conducted by PW17, the Sub Inspector of Police, Kelakom. Ext.P7 inquest report was witnessed by PW10 and PW11. PW14 is the Assistant Sub Inspector of Police, Kelakom, who registered Ext.P1(a) FIR based on Ext.P1 FIS. PW18 is the investigating officer.

11. We have gone through the entire evidence of the witnesses examined by the prosecution and the documents Crl. Appeal No.1623 of 2013 :: 7 ::

produced. Being a case resting on circumstantial evidence, the circumstances raised/established by the prosecution should be complete and consistent with the guilt of the accused alone and it shall not be possible for drawing any other hypothesis inconsistent with the guilt of the accused.

12. The star witness examined by the prosecution is PW4, a neighbour of the accused, who is an attester to Ext.P3 and Ext.P4 mahazars under which MO17 stick and MO18 dothi were seized. MO17 and MO18 were seized by PW18, Circle Inspector of Police, under Ext.P3 and Ext.P4 mahazars based on the alleged disclosure statement exhibited as Ext.P3(a) and Ext.P4(a) respectively. In MO18 dothi presence of human blood of "O" group was detected, on chemical analysis. But no evidence was adduced by the prosecution to prove to whom MO18 dothi belongs. So, it cannot be used as an incriminating object against the accused. MO17 stick was recovered from the compound in which it was put up by PW2. So, it cannot be brought under S.27 of the Evidence Act as it is known to PW2 the place wherein he had put up MO17 stick belonged to the victim. So, it cannot be used as an incriminating circumstance against the accused.

Crl. Appeal No.1623 of 2013

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13. The next star witness examined by the prosecution is PW7, the wife of accused, who identified MO3, MO4, MO6, MO9, MO12 and MO16 as that of the accused and MO1, MO2 and MO15 as that of the victim. The body of the victim was found beneath the culvert. MO1 to MO16 were recovered from the place wherein it was put up by PW2. According to PW2, it was lying in front of his shop on 25.2.2012 at 8 a.m., and he took and threw it over the compound wall. The identification of MO3, MO4, MO6, MO9, MO12, and MO16 as that of accused by PW17, his wife, an illiterate lady, is having high probative value. The fact that it was found along with MO1, MO2 and MO15, the belongings of the victim, and the identification would certainly show that the articles belonged to both the victim and the accused were lying scattered in front of the shop room of PW2. It is the specific case of the prosecution that the place of occurrence is on the front side of the shop room, bearing No.X/726, from where the accused took the victim to the workshop. But the dead body of the victim was found lying 50 metres away from that place under a culvert. There is no satisfactory evidence to show that the alleged incident happened somewhere else other than the place wherein the dead body of the victim was found lying - Crl. Appeal No.1623 of 2013

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either in front of the shop room or within the workshop building. MO1 to MO16 were found lying scattered in front of the shop room of PW2, 50 metres away from the culvert. The fact that the belongings of the accused and the victim were found scattered on the road side may not by itself bring home the guilt of the accused, as there are so many other possibilities for the presence of the articles belonged to the accused along with the articles of the victim, which were found lying scattered in front of the shop room of PW2. It cannot be acted upon without having sufficient corroboration by other evidence. PW3 had identified MO1 to MO16, recovered under Ext.P2 mahazar. None of these material objects were sent for forensic lab examination. The medical evidence adduced are consistent with the death due to blunt violence applied in neck. PW6 is the Doctor who conducted the postmortem examination on the body of the deceased and Ext.P6 is the postmortem examination certificate. In short, nothing was brought to our notice to show the role of accused in the alleged incident, except the seizure of MO17 and MO18. MO17 stick was not recovered under S.27 of the Evidence Act. Blood detected in MO18 dothi, human blood of 'O' group, paled in insignificance due to lack of identity of MO18 dothi to Crl. Appeal No.1623 of 2013 :: 10 ::

whom it belongs. The circumstances brought out by the prosecution are not sufficient to bring home the guilt of the accused. The circumstances are not complete, did not satisfy the requirement of an incriminating circumstance pointing towards the guilt of the accused and hence the accused is entitled to an order of acquittal. The finding of guilt of accused under Section 302 IPC and sentence awarded thereunder are hereby set aside. The accused is hereby acquitted and set at liberty. He shall be released forthwith if his presence is not required in connection with any other case.

In the result, the appeal is allowed. The finding of guilt of the accused under Section 302 IPC and the sentence awarded thereunder are hereby set aside and the accused is acquitted. He shall be released forthwith, if his detention is not required in connection with any other case.

A.M. Shaffique Judge P.Somarajan Judge ahz/

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