Haridas vs Stateof Kerala on 26 March, 2014

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Kerala High Court

Haridas vs Stateof Kerala on 26 March, 2014

This appeal is against the judgment of conviction and order of sentence passed under Section 302 IPC solely based on circumstantial evidence against the accused in S.C. No.281 of 2012 by the Additional Sessions Court IV, Kottayam.

2. The alleged incident took place in the night of 25.1.2012 in and around 00.45 hours. The deceased is one Sadan @ Sadanandan, whose deadbody was found lying in front of a shop room in the early morning of 26.1.2012. The circumstances relied on by the learned Sessions Judge in order to prove the complicity of the accused are: (1) The alleged incident has happened during midnight on 25.1.2012 and on that night (early morning of 26.1.2012) in and around 4 a.m., the accused went for a cup of tea near Seematti Roundana; (2) The accused concealed his blood stained cloths Crl. Appeal No.644 of 2014 :: 2 ::

inside a lorry stand; (3) The sniffer dog employed went up to the place wherein the pants and shirt of the accused were concealed, the lorry stand; (4) The accused and the deceased were found together by 9 p.m. on 25.1.2012 within the stadium which is near to the place of occurrence; (5) MO3 stone stained by human blood was recovered based on the disclosure statement alleged to have been given by the accused while under police custody and it is found to be stained by human blood of A group, the blood group of the deceased; and (6) The accused and the deceased were known to each other and they used to take liquor and ganja together, and used to pick up quarrel frequently.

3. The presence of the accused and the deceased together within the stadium by 9.p.m. on 25.1.2012, the day before the body of the deceased was found lying in front of the shop room situated near to the stadium was deposed by PW2. But, though he advanced a case that he had seen the accused and the deceased together, he turned down during the cross examination stating that he heard only the sound of accused and the deceased from the stadium. Ext.P9 scene plan prepared through PW15 Village Officer Crl. Appeal No.644 of 2014 :: 3 ::

would sufficiently show that it is not possible to see the person standing inside the stadium by PW2 who came to a workshop for repairing his vehicle facing opposite to the stadium. Further, according to PW2, he heard only the sound of accused and deceased and did not see them together. The oral evidence tendered by another witness, PW3, is to the effect that he had seen the accused entering into the stadium by 8 p.m. on the said night. But, he did not see the victim there either in the company of accused or in the company of any other person. The body of the deceased was found not within the stadium but it was found lying outside the stadium in front of a shop, which is well evident from Ext.P5 scene mahazar proved through PW10 and Ext.P9 scene plan proved by PW15 Village Officer. So the last seen theory advanced by the prosecution will not stand, as there is no satisfactory evidence to show that the accused and the deceased were found together or the deceased was found in the company of the accused and they were last seen together just before the commission of the offence.

4. The next incriminating circumstance relied on by the prosecution is the recovery of blood stained pants and shirt, Crl. Appeal No.644 of 2014 :: 4 ::

identified as MO1 and MO2, from the lorry stand in furtherence of the disclosure statement alleged to have been given by the accused while in police custody. MO1 and MO2 are item Nos.6 and 5 respectively in Ext.P20 FSL report. Though blood stain was found and detected, its origin was not detected. So, there is no satisfactory evidence to show the presence of any human blood either in MO1 or MO2 pants and shirt alleged to have been worn by the accused at the time of commission of the offence. Hence, in the absence of any incriminating factor attached to either MO1 or MO2 cannot be brought under the purview of Section 27 of the Evidence Act. Further, the alleged recovery is vitiated as no search was conducted by the investigating officer in the place wherein the pants and shirt were kept concealed behind some plastic bottles. It was kept inside the lorry stand. The sniffer dog employed went to the abovesaid lorry stand up to its south-western corner and it was deposed by PW14, the Sub Inspector of Dog Squad. This is the place wherein the accused used to keep his scrap items and plastic bottles. He was actually doing business of collection of scrap materials and plastic bottles and was earning a living. PW4 was cited to show that the accused is a person doing the business of Crl. Appeal No.644 of 2014 :: 5 ::

collecting scrap materials and empty bottles and he used to keep the same in a corner of the lorry stand. The oral evidence tendered by PW14 the Sub Inspector of Dog Squad, would clearly show that the sniffer dog employed went up to the place wherein the empty plastic bottles and scrap materials were kept by the accused, on the south- western corner of the lorry stand. But, no search was conducted by the investigating officer in that place in order to detect any incriminating object. Instead of conducting a search in that place, the dress worn by the accused MO1 and MO2 caused to be recovered by the investigating officer under the guise of Ext.P2 recovery mahazar based on an alleged disclosure statement given by the accused while in police custody. The recovery or detection of any incriminating factor based on the disclosure statement of the accused would come within the sweep of S.27 of the Evidence Act only when the incriminating factor which was detected was not within the reach of investigation otherwise than through the accused. The sniffer dog employed reached the exact place wherein MO1 and MO2 material objects were concealed, beneath/behind some empty plastic bottles and scrap materials, and it could be possible for the investigating officer to detect it and recover it by simply conducting a Crl. Appeal No.644 of 2014 :: 6 ::

search in the articles/bundle of articles kept there. So, the recovery of MO1 and MO2 would not come under S.27 of the Evidence Act. So, this cannot be treated as an incriminating factor against the accused.

5. The next incriminating factor relied on by the learned Sessions Judge is the recovery of MO3 stone used for inflicting injury. On examination of a granite stone, stains of human blood of same group of the deceased was detected in Ext.P20 FSL Report. But two stones, which were identified as MO3 and MO7, were recovered by the investigating officer. MO3 stone was recovered just 80 feet away from the place wherein the deadbody was found lying under Ext.P6 seizure mahazar. It was lying at the western gallery of the stadium. PW11 is the attestor to recovery of MO3 stone based on Ext.P6 seizure mahazar. Another granite stone was also recovered from the place wherein the deadbody was found lying and its nature is stated as granite piece. PW16, the Sub Inspector of Police who conducted the initial investigation had admitted that MO7 granite stone was recovered. It is not clear out of the two stones which one was sent for chemical analysis, but the report Crl. Appeal No.644 of 2014 :: 7 ::

Ext.P20 would show that human blood was detected on a granite piece of stone. It may be the stone which was found near the deadbody and recovered by PW16, SI of police who conducted the initial investigation. It is not clear what happened to MO3 stone which was recovered on the basis of the disclosure statement alleged to have been given by the accused while in police custody. Further, it was lying just 80 feet away from the place wherein the dead body was found lying and it could be possible for the investigating officer to trace out the same by conducting a search in the vicinity and hence cannot be brought under the purview of 27 on two grounds: (1) No incriminating factor attached to MO3 was brought by the prosecution such as presence of human blood etc. (2) It was recovered just 80 feet away from the place where the body was found lying and it could be easily detectable by the investigating officer by conducting a search in the near vicinity of the place of occurrence.

6. The next incriminating factor is that accused and the deceased used to take liquor and ganja and they were friends and sometimes they used to pick up quarrel. This itself is not an Crl. Appeal No.644 of 2014 :: 8 ::

incriminating circumstance pointing towards the guilt of the accused especially in a case wherein the prosecution is heavily resting on circumstantial evidence. It may cause some impact/relevancy when there is sufficient evidence pointing towards the guilt of the accused. The relationship maintained by the accused with the deceased will not have much relevance and not at all sufficient to prove the guilt of the accused. The fact that the accused was found by 4 a.m. on the very same night in and around Seematti Roundana and he came for a cup of tea as spoken by PW6 also by itself cannot be treated as an incriminating circumstance. It is also deposed by him that he used to conduct business from 3.00 a.m. early morning till 7.30 a.m. It is not possible to trace out any incriminating factor or element of incriminating circumstance from the fact that the accused came near the stadium to take a cup of tea in the early morning of the ill-fated day. On the other hand, PW6 had admitted that it is the usual practice of accused to come for a cup of tea in and around 4.00 a.m. early morning. So, it cannot be treated as an incriminating circumstance pointing towards the accused.

7. The medical evidence though supports the cause of death Crl. Appeal No.644 of 2014 :: 9 ::

as due to injury Nos.1 and 2, which are head injuries and that it could be possible by an attack with MO3 stone. In the absence of any link connecting with the complicity of the accused, no conviction can be laid against him. The seizure of MO3 stone also would not assist the prosecution case.

8. It is true that the sniffer dog employed went up to the place wherein MO1 and MO2 were concealed. It was not recovered by the investigating officer though the sniffer dog went up to that place for the reason best known to them. If it was recovered then and there and if there is an incriminating factor attached to MO1 or MO2 like human blood stain and if it was proved as that of accused, it would be a relevant factor. No human blood was detected in MO1 and MO2. In short, no material was brought out by the prosecution in order to show the involvement of the accused in the crime. The body was found lying in a public place. The prosecution case is that the alleged incident has happened during midnight and in a public place. If that be so, the initial burden lies on the prosecution that it was none else than the accused who had committed the crime. The burden is so heavy and it should clear out all the Crl. Appeal No.644 of 2014 :: 10 ::

hypothesis/possibilities for having committed the same by somebody else rather than the accused. As such, we are of the considered view that no offence was made out as against the accused by the prosecution and the finding of guilt of accused under S.302 IPC and the conviction and sentence thereunder are liable to be set aside and we do so by allowing this appeal.

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

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

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Kerala High Court