Kerala High Court
Devadas @ Unnimon @ Devan K Panicker vs State Of Kerala on 4 October, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl. Appeal No.176/2018
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 4TH DAY OF OCTOBER 2024 / 12TH ASWINA, 1946
CRL.A NO. 176 OF 2018
CRIME NO.6/2010 OF VATTIYOORKAVU POLICE STATION,
THIRUVANANTHAPURAM
AGAINST THE JUDGMENT DATED 24.11.2017 IN SC NO.324/2011 OF
ADDITIONAL SESSIONS COURT-IV, THIRUVANANTHAPURAM (CP NO.137/2010
OF JUDICIAL MAGISTRATE OF FIRST CLASS-II,NEDUMANGAD)
APPELLANT/ACCUSED:
DEVADAS @ UNNIMON @ DEVAN K PANICKER
AGED 43 YEARS, S/O. SUBRAMONIAN,
RESIDING AT KATHULLI KALARIKKAL VEEDU,
KONOOR JUNCTION, THEKKUMKARA MURI,MURINGOOR,
KORATTI, THRISSUR DISTRICT.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SRI.T.ANIL KUMAR
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.THOMAS ABRAHAM NILACKAPPILLIL
SRI.THOMAS SABU VADAKEKUT
SRI.E.VIJIN KARTHIK
P.T.SHEEJISH
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,PIN - 682 032.
BY ADV SMT.AMBIKA DEVI S, SPL.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25.09.2024, THE COURT ON 04.10.2024 DELIVERED THE FOLLOWING:
Crl. Appeal No.176/2018
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JUDGMENT
Dated this the 4th day of October, 2024 C. Pratheep Kumar, J This appeal has been preferred by the accused in SC. No.324 of 2011 on the file of the Additional Sessions Court-IV, Thiruvananthapuram against the judgment finding him guilty under Sections 302 and 201 IPC and sentencing to undergo imprisonment for life and to pay a fine of Rs.2,00,000/- under Section 302 IPC and to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.10,000/- under section 201 IPC.
2. Deceased Archana is the second wife of the accused. The prosecution case is that the accused had suspicion in the chastity of Archana. When his attempt to divorce her by mutual consent failed, he with the intention to do away with her, on 28.12.2009 at about 12.15 p.m. smashed her head using an oil-lamp (ന ലവ ളക) and when she fell down, tied her hands and legs using cloths and chopped on her head and neck indiscriminately using a chopper and as a result of the injuries, she died at the spot. Thereafter, he covered her dead body using a bed sheet as well as a mattress and put the same behind the cot in the bedroom of a rented building 'Kalabham', KPNRA 50, Chathramoola lane, Thozhuvankode, in Peroorkada village. Further, he Crl. Appeal No.176/2018 3 2024:KER:73592 had locked the house and it's gate from outside and went to his residence in Thrissur District and on the way he had thrown away the dress worn by him at the time of the incident as well as the keys of the house and thereby destroyed the evidence.
3. Originally the crime was registered under Section 174 Cr.P.C. on the basis of the information given by PW1. After investigation, final report was filed against the accused under Sections 302 and 201 of Indian Penal Code. The evidence in this case consists of the oral testimonies of PWs 1 to 17 and Exhibits P1 to P28. MO1 to MO14 were identified. No evidence was adduced by the accused. After evaluating the evidence on record, the trial court convicted the accused both under Section 302 and 201 IPC, aggrieved by the conviction and sentence, he preferred this appeal raising various grounds.
4. Now, the points that arise for consideration are the following:
1. Whether the prosecution has succeeded in proving that the accused has committed murder of deceased Archana on 28.12.2009 at 12.15 p.m., as alleged?
2. Whether the accused has caused disappearance of evidence as alleged?
3. Whether the impugned judgment of conviction and sentence Crl. Appeal No.176/2018 4 2024:KER:73592 calls for any interference by this Court, in the light of the grounds raised in the appeal?
5. Heard both sides
6. Points 1 and 2: To prove the charges of murder and disappearance of evidence, the prosecution has no direct evidence. Therefore, the prosecution has relied solely upon circumstantial evidence, to prove the charge.
7. The learned Senior Counsel Sri. B. Raman Pillai, who appeared for the accused would argue that in this case there is no chain of circumstance, conclusively leading to the guilt of the accused and excluding the hypothesis of his innocence and therefore, he prayed for acquitting the accused.
8. On the other hand, Smt. Ambika Devi, learned Special Public Prosecutor would argue that the circumstantial evidence adduced by the prosecution conclusively proves the guilt of the accused and excludes all possibilities of his innocence and therefore she prayed for dismissing the appeal.
9. The law on circumstantial evidence is well settled. When a case is governed by such evidence, the evidence must point singularly to the guilt of the accused, closing out the possibility of all other hypotheses. (Prakash Nishad @ Kewat Zinak Nishad v. State of Maharashtra, 2023 Crl. Appeal No.176/2018 5 2024:KER:73592 KHC 6605)
8. The celebrated decision relating to the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone is Hanuman Govind, Nargundkar and Another v.State of M.P., AIR 1952 SC 343. In the above decision, the Apex Court held in paragraph 10 thus:
"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 pendency 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."
9. The five golden principles (styled as panchasheel) relating to circumstantial evidence consistently followed in subsequent decisions is, Crl. Appeal No.176/2018 6 2024:KER:73592 Sharad Birdhichand Sardar v. State of Maharashtra, 1984 (4) SCC
116. In the said decision, the Apex Court after analysing various decisions including Hanuman Govind (supra), in paragraph 153 held that:
"A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict Crl. Appeal No.176/2018 7 2024:KER:73592 and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) 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, (3) the circumstances should be of a conclusive nature and tendency.
(4) they 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."
10. To prove the most important circumstance relied upon by the prosecution, ie., the presence of accused on 28.12.2009 in the rented house 'Kalabham', the only evidence available in this case is the oral testimony of PW1. PW1 is a neighbour of the deceased. At the time of evidence, she would swear that she knew the accused as well as the deceased since six Crl. Appeal No.176/2018 8 2024:KER:73592 months prior to her death. Archana used to draw water from her house and accordingly she became familiar to the witness. According to her, on 28.12.2009 at about 10 a.m. Archana came to her house to draw water. At that time Archana looked very sad. Though she enquired about the reason for her sadness, she did not give any reply. She returned to her residence stating that her husband is there in the house. PW1 further deposed that when Archana came to her house for drawing water, she saw the accused in front of his house talking over phone. Thereafter she had not seen anybody in the said house. After two days, foul smell came out from the house. Thereafter, the owner of the house came there and later on police party also came there. When the police party broke open the window glass pane, dead body of Archana was found covered using matress, near the cot. During the cross- examination of PW1, she claimed that at the time of inquest also, she told the Police Officer that she saw the accused in front of his house on 28.12.2009, talking over phone. However, in column No.10 of Exhibit P3 inquest report, where her statement is recorded, no such information is given. In the above circumstances, the learned Senior Counsel would argue that the above material omission in Exhibit P3 inquest report amounts to contradiction sufficient enough to disbelieve PW1.
11. On the other hand, the learned Special Public Prosecutor would Crl. Appeal No.176/2018 9 2024:KER:73592 argue that though in Exhibit P3, PW1 has not stated about the presence of the accused at his residence on 28.12.2009, in the subsequent statement given to the investigating Officer under Section 161 of Cr.P.C., it was specifically stated and as such the above omission in Ext.P3 is not fatal enough to disbelieve her.
12. During the cross examination of PW1, she deposed that on 31.12.2009 at about 6 p.m. police party came there. On that day, after breaking open the window glass pane, they came to know about the presence of dead body of Archana inside the house. However, only on the next day ie., on 1.1.2010 the police broke open the house and inspected the body with the help of forensic expert. The crime was registered only on 1.1.2010 at 6.30 a.m. Thereafter, Exhibit P3 inquest was prepared between 9.30 a.m. and 12.45 p.m. on 1.1.2010.
13. In Exhibit P3, the only statement recorded in detail is that of PW1. Since this is a case having no direct evidence to prove the charge and a lady is seen murdered and thereafter kept locked inside her own residence, the fact as to who had seen her last alive is the most crucial aspect. In the above circumstance, omission to mention about the presence of her husband in the above house on 28.12.2009 at 10 a.m. as claimed by PW1 when examined before the court, is very much vital.
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14. The time of death of Archana is very crucial in this case. As per the prosecution case, her time of death was at 12.15 p.m. on 28.12.2009. PW14 was the Deputy Police Surgeon, Medical College Hospital Thiruvananthapuram, who had conducted the postmortem examination on the body of Archana on 2.1.2010 and issued Exhibit P9 postmortem certificate. According to PW14, the body was brought in a state of decomposition and partial adipocere. In Exhibit P9 the following findings were noticed:
"...brought in a state of decomposition and partial adipocere formation. Eyelids and eyeballs were in disintegrated state. Hymen absent, vaginal orifice admitted two fingers. All other external body orifices were in a decomposed state. Finger nails of right hand present and nails of left hand and both feet were absent. A few black hair 9 to 32cm long were seen sticking on the scalp. Rigormortis absent. Postmortenı staining was not clear due to decomposition and adipocere formation. Abdomen was distended with gas. Gas crepitations present all over the body. Tongue protruded, not bitten. Superficial skin was peeled off except for a few sticking at places on the body. Al teeth were loose. Maggots of size 1-1.5cm long seen crawling on the body at places. Adipocere formation seen all over the body. (Body was kept in the cold chamber).
INJURIES (ANTE-MORTEM):-
(1) Incised wound 9x8cm bone deep on the left side of forehead, its inner end 1.5cmn outer to midline and 2cm above the root of nose. Frontal bone underneath showed fracture fragmentation, extending to the left side of anterior cranial fossa. A few Crl. Appeal No.176/2018 11 2024:KER:73592 fragmented pieces over an area 8.5x7 cm were missing. Skull cavity could be seen through the wound.
(2) Incised wound 5x1.3cm bone deep on the left side of top of head its front end 5cm above the top of ear. Skull bone underneath showed a cut fracture 1.8x0.3x0.3cm.
(3) Incised wound 3x1 cm, bone deep on the right side of head 8.5cm above the top of ear. Skull bone underneath showed a cut fracture 1.3x0.3x0.3cm.
(4) Incised wound 2x1.5cm bone deep on the right side of head 3cm in front of injury No.3 (5) Incised wound 3.5xlcm, bone deep obliquely placed on the right side of top of head its right front end 3.5cm outer to midline and 8.5cm above the root of nose.
(6) Incised wound 2.5x1.8cm, bone deep on the right side of top of head its upper right end l cm in front of right end of injury No.5 (7) Incised wound 1.2xl cm bone deep on the right side of forehead 3cm outer to midline and 5cm above the root of nose. (8) Incised wound 2x0.5cm bone deep on the left cheek 8.5cm in front of tragus of ear. Cheek bone was fractured into fragment upper jaw was fractured in between the central incisor teeth. (9) Incised wound 3.8x1.5x0.3cm horizontal on the forehead across midline 6cm above the root of nose.
Dura was seen missing. A few brain matter was seen sticking on the base of skull. Superficial injuries if any present could not be identified due to decomposition changes. There were no other injuries to offer deeper structures and other skeleton.
Cranial cavity contained maggots crawling on a few brain matter (vide injury column). Flap dissection of neck was done under bloodless field. All neck structures were found to be normal Crl. Appeal No.176/2018 12 2024:KER:73592 and intact except for decomposition changes. Air passages decomposed. Lungs pale, soft and decomposed. Stomach contained brownish fluid having no unusual smell, mucosa decomposed. Urinary bladder empty. Uterus measured 6.5x3x2em, cavity empty. Endometrium haemorrhagic. Tubes and ovaries decomposed. All other internal organs were pale, soft and decomposed otherwise appeared normal."
15. According to PW14, the death was due to head injury. According to her, injury No.1 to 9 on the head are sufficient to cause death independently or in combination. She also deposed that injury No.1 to 9 are possible using MO2 chopper. However, she could not confirm whether any of the injuries could be inflicted using MO1 oil-lamp. According to PW14, the death might have occurred about five days before the body was kept in cold chamber. However, during further cross examination, she clarified that she could not say the exact date of death of deceased. According to her, she could definitely state that it was before 3 to 5 days.
16. During cross examination, PW14 deposed that adipocere was formed all over the body of the deceased. When it was suggested to her that adipocere formation can start from 7 to 35 days depending on the climate, she replied in the affirmative. According to her, in our climatic condition, adipocere formation can occur within 2 to 5 days. Thereafter, she clarified that adipocere formation starts only after passing of rigor mortis. During re- Crl. Appeal No.176/2018 13
2024:KER:73592 examination, she deposed that rigor mortis will be complete within 4-6 hours in normal cases. According to her, after 18-24 hours of death, rigor mortis starts to disappear and it completely passes of after 48-72 hours in our normal climatic condition. She further deposed that if temperature is more, rigor mortis will start to disappear fast.
17. From the above evidence of PW14, it is revealed that normally rigor mortis will be completed within 4-6 hours. It starts to disappear after 18- 24 hours and it completely disappears only after 48-72 hours in our normal climatic conditions. Only thereafter, adipocere formation begins to form. According to PW14, on the body of the deceased adipocere formation was found all over the body. Therefore, it was argued that the deceased might have died much before 28.12.2009.
18. As per the evidence of PW14, the date of death of Archana can be 3 to 5 days before the body was kept in cold chamber. Postmortem examination was commenced at 12.30 p.m. on 2.1.2010. As per the evidence of PW9, the body was placed in cold chamber only in the afternoon on 1.1.2010. Therefore, in the light of the evidence of PW14, the death could have been 3 to 5 days before 1.1.2010 ie., it could be between 27.12.2009 and 29.12.2009.
19. Admittedly, at the time of the incident, the accused and the Crl. Appeal No.176/2018 14 2024:KER:73592 deceased were not in good terms. The learned Special Public Prosecutor would also admit that during the said period they were living separately and that they were not living together in the rented house. The motive alleged against the accused is that he had suspicious in the chastity of the deceased and also that his attempt to divorce her by mutual consent failed because the deceased withdrew her consent for divorce by mutual consent.
20. Exhibit P16 is the copy of the joint petition filed by them before the Family Court, Ernakulam. It shows that they had filed the petition before the Family Court as early as on 28.8.2008 and finally it was dismissed on 22.5.2009. Paragraph 5 of Exhibit P16 states that since 1.3.2006 they had been living separately at their respective houses. It will also go to show that the accused was not a permanent resident in 'Kalabham' house, wherein the deceased was residing and found killed.
21. It is true that Exhibit P1 rent agreement dated 20.5.2009 was executed in the name of the accused. At the time of evidence, it is also revealed that the accused married the deceased during the subsistence of his earlier marriage. It was argued that since the joint petition was dismissed for the reason that deceased withdrew her consent for divorce, the building was taken out on rent by the accused for the residence of the deceased. From the evidence of PW3, the brother of the landlord, and from Ext.P2 FIS, it was Crl. Appeal No.176/2018 15 2024:KER:73592 revealed that rent for the building was paid only for the first three months and thereafter the same was kept in arrears. Though he agreed to pay the arrears of rent on 31.12.2009, it was not paid. It was when he came there to meet the accused, he felt foul smell from the house, which led to intimation to the police.
22. In this case, the accused was arrested only on 11.2.2010, 45 days after the incident. PW17 the investigating Officer deposed that on the basis of Exhibit P4(a) disclosure statement given by the accused, MO1 oil-lamp in two pieces was recovered from a shop in Chala Bazaar. Similarly, on the basis of Exhibit P7(a) disclosure statement, MO2 chopper was recovered from the compound of the guest house of a television serial. In this context, it is to be noted that no blood stains were found on MO1 oil-lamp, though, blood stains were detected on MO2 chopper.
23. PW5 is the person to whom the accused allegedly sold MO1 and MO1(a) after the commission of the offence. According to PW5, the police party came to his shop and recovered MO1 and MO1(a) on 16.2.2010. According to him, the accused sold MO1 and MO1(a) to him one week before the recovery. If so, those articles were purchased by him on or around 9.2.2010. The alleged incident was on 28.12.2009. At the time of evidence, PW17, the Investigating Officer, deposed that on the day next to the Crl. Appeal No.176/2018 16 2024:KER:73592 commission of the offence, the accused returned to the residence where the deceased was staying and taken away MOs 1 and 2 from that house. However, there is absolutely no evidence to prove the said claim of PW17.
24. PW15, the Assistant Director of Serology, had prepared Ext.P10 report after examining MOs1 and 2 and reported that blood was found on MO1 and MO1(a) and it was insufficient for determining its origin. As per the prosecution case, after the commission of the offence, the accused returned to his native place at Thrissur. If the claim of PW5 that the accused sold MO1 and MO1(a) to him just one week prior to 16.2.2010, another question that may arise for consideration is, where were those MOs during the period from 28.12.2009 to 9.2.2010. In this context, it is also to be borne in mind that during the said period, the police was in search of the accused. It is quite unbelievable that while the police was in search of the accused, he went to Chala bazar to sell MO1 and MO1(a), without being noticed by anyone.
25. More over, as we have already noted above, PW14, the doctor who had conducted the postmortem examination on the body of the deceased deposed that in the light of the injuries noticed on the body of the deceased, there was no chance that MO1 was used for inflicting those injuries. Though he admitted that the vital injuries found on the body of the deceased could be caused using MO2 chopper, no blood was detected in MO2. In the above Crl. Appeal No.176/2018 17 2024:KER:73592 circumstances, there is no evidence to prove that MO2 chopper was used for commission of the offence. Since it is revealed that there is no evidence to prove that MO2 chopper was used for the commission of the offence and since PW14 deposed that most likely MO1 was also not used for the commission of the offence, the recovery of MOs1 and 2 are not sufficient to connect the accused with the offence alleged against him.
26. It was argued by the learned Senior counsel that there was delay in registering the FIR. There is some merit in the above contention raised by the learned Senior counsel. PW8, the Head Constable who was engaged in the scene guard duty on 31.12.2009 would depose that at about 6.30 p.m. on 31.12.2009, PW17, the Investigating Officer, reached the place of occurrence, broke open the back side room of the house and seen the dead body. However, when PW17 was examined, he denied having entered the said house and seen the dead body. However, he admitted that on 31.12.2009, he reached that house at about 7.40 p.m. He also deposed that he has reached that house after getting information that something happened in that house. If the evidence of PW8 is believed, the Circle Inspector had entered the house at 6.30 pm on 31.12.2009 and seen the dead body and in spite of that, he has not registered the crime on 31.12.2009. Thereafter it was registered only at 6.30 a.m. on 1.1.2010. Therefore, it can be seen that there is some delay in Crl. Appeal No.176/2018 18 2024:KER:73592 registering the FIR. However, merely on that basis, the prosecution case could not be thrown out.
27. It is true that PW3 deposed that on 31.12.2009, at about 3.30 p.m. when he contacted the accused, he agreed to reach Kalabham house by 5.30 p.m. and agreed to pay the rent arrears. However, according to him, though he reached there, the accused did not turn up. When he informed the accused about the foul smell from the house, he told that it might be because of the death of a dog. He confirmed that the dog was still alive, from one Sreekumar and thereafter contacted the police. As per the FIS, during the first three months the accused remitted the rent in the account of the land lord and thereafter kept the rent in arrears. If the accused had mudered his wife and kept her body inside the house, whether he will invite PW3 to come to that house after 3 days, to pay rent, especially when there is option to transfer the rent into the account of the landlord?
28. PW1 claimed that she had seen the accused on 28.12.2009 at Kalabham house and found that he was talking over mobile phone. If so, the prosecution could have easily proved his presence at the place of occurrence on 28.12.2009 by producing the electronic evidence in respect of his mobile phone. The evidence of the investigating officer that he had not made any attempt to trace out the details of the mobile phone of the accused on the Crl. Appeal No.176/2018 19 2024:KER:73592 ground that it was not necessary is quite strange and unbelievable. If the prosecution was able to prove that the mobile phone of the accused was available near the place of occurrence at the time of commission of the offence, the same would have substantiated the evidence of PW1 that she had seen the accused at the place of occurrence on 28.12.2009. The explanation given by PW17 during the cross-examination for not producing such evidence in respect of the mobile phone of the accused is not convincing. As argued by the learned Senior counsel, non-production of those electronic evidence without offering any valid explanation can only be because, if it is produced, it will go against the prosecution case.
29. The finding of the trial court that the accused was residing along with the deceased at Kalabham house is not supported by any evidence. It was on the basis of such a wrong finding that the trial court held that it is the duty of the husband to explain about the death of his wife as they were living together in the same house and the death occurred in the said house. As we have already noted above, none of the witnesses examined in this case deposed before the court that the accused was residing along with the deceased at Kalabham house. Even at the time of arguments, the learned Senior Public Prosecutor has no case that the accused was residing along with the deceased at Kalabham house, at any point of time. For the mere reason Crl. Appeal No.176/2018 20 2024:KER:73592 that Ext.P1 rent agreement was executed in the name of the accused, it cannot be held that the accused was also residing along with the deceased in the said house. Moreover, Ext.P16 joint petition categorically states that they were living separately in two different residences.
30. One thing is clear, ie, the person who locked the door and gate of Kalabham house has some role in the commission of the offence. From the evidence on record, it is evident that the assailant after committing the offence locked the door and gate of Kalabham house and went away with the keys. The prosecution could not recover the keys of the gate as well as the door of the house from the accused. Though PW17, the Investigating Officer, deposed that the accused threw away the keys on his way to his native place at Thrissur, on the basis of the confession given by the accused, the same is inadmissible in evidence in view of section 25 of the Evidence Act. Since the accused was not residing along with the deceased at Kalabham house, the finding of the trial court that after the death of the wife, the accused has absconded from there is also not correct, as it is not in tune with the evidence on record.
31. In order to find the accused guilty of the offence solely on circumstantial evidence, all possibilities of the involvement of third persons are to be ruled out. In the instant case, as per the medical evidence, the death Crl. Appeal No.176/2018 21 2024:KER:73592 of Archana could have been on 27.12.2009, 28.12.2009 or 29.12.2009. Admittedly at the relevant time, the accused and the deceased were in loggerheads and they were living separately and in the Kalabham house, the deceased alone was residing. Even PW1 has not stated that she had ever seen the accused in that house prior to 28.12.2009. She also has not stated that the accused was also residing in Kalabham house along with the deceased. During the cross-examination, PW17 deposed that on 25 th, 26th and 27th December 2009, the accused was engaged in serial shooting at Thiruvananthapuram.
32. As per the prosecution case, only on 28.12.2009 the accused came to the residence of the deceased. Even PW1 has not claimed that, she had ever seen the accused in Kalabham house on any day or time other than at 10.00 a.m. on 28.12.2009. According to her, thereafter, she had not seen anybody in that house for the next 3 days. Now the question to be considered is whether the possibility of any third persons trespassing into that house and committing the offence and thereafter escaping from there with keys, after locking the door as well as the gate, could be completely ruled out in the light of the evidence available on record ? Such a possibility is not at all impossible or improbable. When such a possibility could not be ruled out with certainty, the accused cannot be mulcted with the liability to account for Crl. Appeal No.176/2018 22 2024:KER:73592 the death of the deceased, especially because, he was not residing along with the deceased in the above residence.
33. Moreover, as we have already noted above, even the evidence of PW1 that she had seen the accused at 10.00 am on 28.12.2009 at the residence of the deceased was suspicious in the light of the omission to that effect in the statement given by her at the time of preparing Ext.P3 inquest report. The above suspicious circumstance could have been ruled out if the prosecution has produced the electronic evidence in respect of the mobile phone used by the accused. As we have already noted above, failure of the prosecution in producing the electronic evidence in respect of the mobile phone used by the accused casts suspicion in the veracity of the prosecution case. In the light of these circumstances, we are constrained to hold that the prosecution could not prove the presence of the accused at the place of occurrence at the relevant time. Similarly, the prosecution could not rule out the possibility of the involvement of any third person in the commission of the offence. In the light of the above circumstance, it is to be held that the accused is entitled to get the benefit of doubt. In other words, we hold that the prosecution could not prove the guilt of the accused beyond reasonable doubt and hence he is liable to be acquitted.
34. The finding of the trial court that the accused has caused Crl. Appeal No.176/2018 23 2024:KER:73592 disappearance of evidence by keeping away the dress worn by him as well as the keys of the house and gate is also not supported by any evidence on record. Such a finding was entered into by the trial court solely based on the disclosure made by the accused, which is inadmissible in evidence. Therefore, the finding that the accused has committed the offence punishable under Section 201 IPC is also unsustainable. Points (i) to (iii) answered accordingly.
In the result, this appeal is allowed. The impugned judgment of conviction and sentence passed by the trial court against the accused is set aside. The accused is acquitted under Section 386(b)(i) of Cr.P.C. He shall be released forthwith, if his presence is not required in any other case.
Sd/-
P.B. SURESH KUMAR, JUDGE Sd/-
C. PRATHEEP KUMAR, JUDGE sou.