Kerala High Court
Gireesh vs State Of Kerala on 9 September, 2010
Bench: Pius C.Kuriakose, P.S.Gopinathan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 2530 of 2006()
1. GIREESH, S/O.PEETHAMBARAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.V.V.NANDAGOPAL NAMBIAR
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :09/09/2010
O R D E R
PIUS C. KURIAKOSE & P.S.GOPINATHAN, JJ.
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Crl. Appeal No. 2530 of 2006
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Dated this the 9th day of September, 2010
JUDGMENT
GOPINATHAN, J.
The Addl.Sessions Judge, Thodupuzha in S.C. No. 223 of 2005 on her file convicted the appellant for offence under Section 302 and 392 IPC and sentenced to imprisonment for life and fine of Rs.20,000/- under Section 302 IPC and rigorous imprisonment for five years and fine of Rs.5000/- under Section 392 IPC. Sentence of fine is followed by usual default clause. The above conviction and sentence are now under challenge.
2. The appellant was prosecuted by PW-35, then Deputy Superintendent of Police, Crime Branch Special Investigation Team -I for offence under section 302 and 394 IPC. The brief facts of the case is that late Roy, the husband of PW-8 was having a grocery business at Machiplavu, near the shop of PW-9. PW-11 is the father of Crl. A. No. 2530/06 -2- late Roy. On 11-2-1994 as usual, after closing the shop, he returned with the sale collection and at about 7.00 p.m. when he reached at the pathway near his house, the appellant who was hiding behind the plantains, in attempt to rob, inflicted grievous hurt on the head of the Roy with M.O.1 pipewrench, a deadly weapon and he was robbed off a gold chain and about Rs.4000/- which he had as sale collection from his shop. Roy, having sustained injury cried aloud. Hearing the cry PW-5 a neighbour and others gathered. Roy was found bleeding with injuries on his head. He was taken to home. When enquired about, he gibbered not to disturb and wanted to take rest. Having felt that the injuries were not minor in nature, PW-8 along with others took him to a doctor whose name is not revealed out. From there, he was taken to the Morning Star Hospital, Adimaly wherein PW-30 was the Casualty Medical Officer. She gave first aid. Another doctor attached to the same hospital Crl. A. No. 2530/06 -3- advised to take X-ray and scan which facility was not available in that hospital. So, Roy was taken to Dharmagiri Hospital at Kothamangalam. But he was referred to a major hospital and brought to the Medical Trust Hospital, Ernakulam at 11.15 p.m. wherein PW-1 was the Casualty Medical Officer. PW-1 sent Ext.P2 intimation to the Town South Police Station from where it was communicated to Adimaly Police Station. Responding to that, CW-107 Head Constable who is now reported laid up attached to Adimaly Police Station rushed to the hospital and recorded Ext.P8 first information statement given by PW-11, the father of the injured at 5 p.m. on 12-2-1994, on the basis of which Crime No. 43/94 was registered by CW-107 for offence under Section 324 and 427 IPC for which Ext.P23 First Information Report was prepared. On 13-2-1994 CW-107 went to the spot of occurrene and prepared Ext.P24 scene mahazar, on the basis of which certain material objects Crl. A. No. 2530/06 -4- were seized. In spite of the resurrective efforts of the doctors, the injured succumbed to the injury at 11.00 a.m. on 14-2-1994. PW-23 on getting death intimation proceeded to the Medical Trust Hospital, Ernakulam and prepared Ext.P5 inquest report wherein PW-3 is an attestor. While preparing Ext.P5, clothes, which were marked as M.Os. 5 to 8, found on the body were seized. Body was sent for postmortem examination. Thereafter, PW-23 filed Exts .P38 and P39 reports dated 15-2-1994 to delete Sections 324 and 427 IPC recorded in Ext.P23 and to add Section 302 IPC and to proceed with the investigation. Thereafter the investigation was taken over by the Circle Inspector of Police, Adimaly. While so, the investigation was handed over to the Crime Branch. On 21-6-1994 the investigation was taken over by the then Deputy Superintendent of Police, Crime Branch for which Ext.P41 report was filed. The case was re-registered as Crime No. 146/CR/94. Crl. A. No. 2530/06 -5- Thereafter, the investigation changed from hands to hands and more than half a dozen investigation officers proceeded with the investigation.
3. On 23-11-1998, PW-35, then Deputy Superintendent of Police, Special Investigation Team took over the investigation. During the course of investigation he questioned several witnesses and on 1-5-1999 he arrested the appellant. On interrogation the appellant stated that the pipewrench used for inflicting injuries had been kept at a Cola Company owned by PW-29. On the basis of the information so given by the appellant and as led by him, PW-35 went to the Cola Company owned by PW-29 at Machiplavu and seized M.O.1 pipewrench on the strength of Ext.P16 recovery of mahazar wherein PW-18 is an attester. On further interrogation, the appellant disclosed that he had sold the gold chain robbed from the deceased to PW-33 Baby. On the basis of the information given and as led by Crl. A. No. 2530/06 -6- the appellant, PW-35 went to PW-33 and seized M.O.2 gold chain from PW-33 on the strength of Ext.P37 recovery mahazar wherein PW-34 is an attester. After completing the investigation he laid charge sheet before the Judicial Magistrate of First Class, Adimaly for offence under Sections 302 and 394 IPC. The learned Magistrate took cognizance as CP.26/01 and on finding that the offence alleged is triable by a Court of Sessions, the case was committed to the Court of Sessions, Thodupuzha. From there it was made over to the Addl. Sessions Judge.
4. The learned Addl. Sessions Judge after hearing the prosecution and the defence and on satisfying that there are materials to send the appellant for trial for the offence alleged, a charge was framed. When read over and explained, the appellant pleaded not guilty. Hence he was sent for trial. On the side of the prosecution out of 114 witnesses cited, 35 were examined as PWs. 1 to 35. Exts.P1 Crl. A. No. 2530/06 -7- to P64 and M.Os. 1 to 10 were marked. After closing evidence for the prosecution the appellant was questioned under section 313 Cr.P.C. He denied the incriminating evidence and stated that he was falsely implicated. On his side, Secretary of the local Panchayat was examined as DW- 1 and Exts. D1 to D4 were marked. The learned Sessions Judge, on appraisal of the evidence, arrived at a finding of guilty against appellant for offence under Section 302 and 392 IPC. Consequently he was convicted and sentenced as above.
5. The two arguments that were advanced before us are that (1) the death was due to an accidental fall and (2) the appellant was falsely implicated.
6. For a correct appraisal of the case we find that it would be appropriate to refer to the evidence of relevant witnesses. PW-1 had deposed that she was working as Casualty Medical Officer at Medical Trust Hospital, Crl. A. No. 2530/06 -8- Ernakulam since 1987 and that on 11-2-1994 at 11.55 p.m, she examined late Roy, who was brought unconscious, decerebrate and laboured breathing. On examination, both pupils were dilated and sluggishly reacting to light. There was contusion right eye 4 X 1 X 0.75 cm. Lacerated would obliquely placed over the frontal region of the scalp in the middle and slightly towards the right, the lower end being 7 cm. above medial end of right eyebrow. There was boggy swelling near the wound extending towards the right temporo parietal region. There was compound fracture of the frontal bone felt through the wound. There were three minute linear abrasions horizontal and parallel to each other on the medial aspect and just below the right knee. There was contusion 4 X 1 cm. horizontally placed over the superior surface of the right scapula. X-ray skull showed depressed fracture of the right fronto temporo parietal bone. C.T.Scan of the head showed right fronto temporo parietal Crl. A. No. 2530/06 -9- subdural haematoma with mid line shift. Depressed fracture was confirmed and the patient expired at 11.00 a.m. on 14- 2-1994. The injured, as stated by bystanders, was having a history of fall close to his house on 11-2-1994 at 7.00 p.m. at Adimaly. Ext.P1 is the wound certificate issued and Ext.P2 is the copy of the intimation sent by her to the Ernakulam Town South Police Station. It was further deposed that the injury mentioned could be caused with a heavy weapon.
7. PW-2 would depose that on 15-2-1994 he who was Professor of Forensic Medicine and Police Surgeon at Medical College Hospital, Kottayam conducted autopsy on the body of Roy and noted the following antemortem injuries.
1. Sutured bone deep lacerated wound 4.2 cm. long obliquely placed on the front of head, the lower right end bend 7 cm. above the inner end of right eyebrow. On dissection, the scalp tissues on the right side of the front, back and sides of head were found extensively infiltrated with blood. The frontal Crl. A. No. 2530/06 -10- bone underneath the lacerated would showed a fracture resulting in the formation of a triangular fragment of skull measuring 9 cm. at the base and 6 and 7 cm. for the limbs. The base of the triangle was at the top of head and the apex on the front. Fissured fractures were extending from the face towards the parietal bone. The temporal and parietal bones above the right ear showed depressed communited fractures over an area 6 X 4 cm.
Fissured fractures were found extending into the roof of right orbit. The right eye was black eye. There was an extradural haematoma measuring 10 X 7 X 2 to 3 cm. over the right frontal, parietal and temporal lobes of the brain. The outer aspect of the right frontal and base of the right temporal lobes showed haemorrhagec softening. There were patechial haemorrhages in the brain on either side and in the bran stain.
2. Contusion 11 X 3.5 cm. on the right side of the head and upper part of the neck just behind the ear. The ear was free of injuries.
3. 3 linear abrasions with red scabs 2 cm. 2.3 cm. and 1 cm. in lengths placed horizontally and parallel to one another; 1.5 cm. and 0.7 cm. apart on the inner aspect of right leg 5 cm. below the knee.
4. Contusion 4 X 0.8 cm. nearly horizontal on the right back of chest over the spine of shoulder blade. It was further deposed that cause of death was due to the injuries sustained to skull and brain (injury No.1) and Ext.P4 Crl. A. No. 2530/06 -11- is the postmortem certificate and that injury No.1 could be caused with a weapon like M.O.1.
8. PW-4 had deposed that she is a neighbour of the deceased Roy and that at about 7.45 p.m. on 11-2-1994 at a pathway near her house which is leading to the house of the deceased, she heard some hue and cry. Since such hue and cry was a routine affair from the nearby Toddy Shop, she did not listen. But, on the next day she came to know about the injury sustained to Roy and that two days later she noticed some blood stains on the wall of her house as well as on trees standing aside. She had further deposed that the appellant had spread some rumours that PW-4 was the assailant.
9. PW-5, yet another neighbour had deposed that at 7.45 p.m. on 11-2-1994 hearing some cry from the pathway near her house she rushed to the spot and found that Roy had sustained some injuries. Herself along with Crl. A. No. 2530/06 -12- mother of Roy took Roy to his house. Roy was having bleeding injuries and clothings were stained with blood. When enquired, Roy told he did not sustain anything and wanted to take rest. Roy was then taken to the hospital.
10. PW-8, the wife of the deceased had deposed that the deceased was running a provision store at Machiplavu and that at 7.45 p.m. on 11-2-1994 he heard the cry of the deceased from the pathway. Herself, mother in law and others rushed to the spot and found Roy with bleeding injuries and his clothes were blood stained. He was taken home and then to the hospital, first at Adimaly and then Dharmagiri Hospital, Kothamangalam and then to Medical Trust Hospital, Ernakulam and that while undergoing treatment he succumbed to the injuries. It was also deposed that before taking Roy to Kothamangalam, he vomited and then became unconscious and that on the day of incident, the appellant was found in and around in a suspicious Crl. A. No. 2530/06 -13- manner. She had further deposed that Roy, while returning from shop, used to carry the daily collections and that Roy was wearing a gold chain. But, she did not care to look whether chain and money missing. She had identified the gold chain which was marked as M.O. 2. M.O.3 was identified as a cross that was put on the chain. She further identified the lungi, shirt, brief, towel and footwear which were marked as M.Os. 5 to 8.
11. PW-10 is an attester to Ext.P7 mahazar, which was prepared by PW-21 on 16-2-1994. On the strength of Ext.P7 mahazar PW-21 had seized a hook and holy cross which were found lying near the spot of occurrence.
12. PW-11 is the father of the deceased Roy. He had identified Ext.P8 first information statement given by him. He had further deposed that at the time of occurrence he was not at the house and he was intimated by a neighbour that Roy was injured and taken to Morning Star Crl. A. No. 2530/06 -14- Hospital at Adimaly. When reached there Roy was taken to Dharmagiri Hospital at Kothamangalam. From there, he was taken to the Medical Trust Hospital, Ernakulam where he was admitted and while undergoing treatment Roy succumbed to the injuries. He had further deposed that Roy was wearing M.O.2 chain. He had also identified M.O.3 and M.O.4 as hook and cross of M.O.2. It was further deposed that while Roy returning from his shop he used to carry the daily collections and the key of the shop building. Though Roy had the key with him, the chain and the daily collection were missing.
13. PW-17 goldsmith would depose that as requested by the brother-in-law of the deceased he made a German Coir Fashion chain like M.O.2 and was given to Roy. M.O.2 was having a hook like M.O.3.
14. PW-18 would depose that he is an attester to Ext.P16, a mahazar prepared for the recovery of M.O.1 Crl. A. No. 2530/06 -15- pipewrench.
15. PW-21 had deposed that he had prepared Ext.P7 mahazar on the basis of which a hook and cross which were identified as M.Os.3 and 4 were recovered. PW-23 would depose that he was Sub Inspector or Police, Adimaly. He would depose about the preliminary investigation.
16. PW-27 would depose that he is the brother-in-law of the deceased and that he got information about the incident on the next day at 2.30 p.m. over phone and rushed to the Medical Trust Hospital where the deceased was admitted in the Intensive Care Unit and he understood that the chain worn by the deceased and the money carried were missing. He had further deposed that he had witnessed the Investigating Officer seizing M.O.3 and M.O.4 hook and cross and that as requested by him PW-17 had made the chain in German Coir Fashion weighing about 1 1/2 sovereign and that M.O.2 is the chain so made by PW- Crl. A. No. 2530/06 -16- 17 on his request and that the deceased was wearing the same. PW-28 is the sister of the deceased and wife of PW-
27. She had also identified M.O.2 chain and M.O.3 hook and M.O.4 cross as that of Roy. She had further deposed that M.O.2 chain in German Coir Fashion was made by the goldsmith known to her and that Roy was wearing the gold chain with the cross.
17. PW-29 would depose that he who is called as Cola George was running a Cola Company at 14th mile, Adimaly and that the deceased Roy was one of his old student and that the appellant had worked in his company on occasions as casual worker and that Ext.P34 is an account book maintained by him in the company during 1994 and that M.O.1 pipewrench belongs to his company and that it was taken from his company by the appellant and handed over to the police and it was seized by the police.
18. PW-30 Dr.Sreekala had deposed that on 11-2-1994 Crl. A. No. 2530/06 -17- she was working at Morning Star Hospital at Adimaly and that at 8.25 p.m. on that day, Roy was brought to the hospital with a deep lacerated wound in the frontal region about 4 X 1 X 3 cms. and that Ext.P9 is the case sheet and that she advised X-ray and scan and that the patient was also attended by Dr. Jayanendrakumar and that the patient was referred to another hospital for C.T.Scan and that the injury mentioned could be caused with a weapon like M.O.1. It was further deposed that the injured was not oriented and he was not responding to queries. The history of the injury was fall as told by the by-standers.
19. PW-32 is an attester to Ext.P36 mahazar prepared for the seizure of Ext.P34 Account Book from PW-29. PW- 33 would depose that he who is a granite worker had purchased a gold chain from the appellant for Rs.3000/- and the value was paid by two occasions and that M.O. 2 is the gold chain so purchased and that it was handed over to the Crl. A. No. 2530/06 -18- police when the police accompanied by the appellant came to him and that it was seized on the strength of a mahazar. PW-34 is an attester to Ext.P37 mahazar on the strength of which M.O.2 was seized by PW-35.
20. PW-35 would depose that he was Deputy Superintendent of Police, Special Investigation Team, Crime Branch and that the investigation of this case was taken over by the Crime Branch on 21-6-1994 for which CW-111 filed a report which was marked as Ext.P42 and that he took over the investigation on 23-11-1998 as Dy. S.P. Administration and from 24-12-1998 onwards he took over the investigation as Dy. S.P., SIT-1 and that Ext.P43 is the report filed by him to that effect. He had forwarded the material objects collected during the investigation by the local police for forensic examination. He questioned the witnesses and recorded their statement. On 27-4-1999 he filed Ext.P48 report implicating the appellant as the accused Crl. A. No. 2530/06 -19- and on 1-5-1999 he arrested the appellant. He had deposed about the interrogation of the appellant and the following recovery of M.Os. 1 and 2 from PWs. 29 and 33 for which Exts.P16 and P37 Mahazars were prepared. He also proved Ext.P16(a) and 37(a) statements of the appellant leading to the recovery of M.Os. 1 and 2. It is further deposed that the appellant was produced before the Judicial Magistrate of the First Class, Adimaly on the next day along with remand report and that Ext.P49 is the arrest card and P50 is the arrest memo and that Ext.P52 is the remand report. It was also deposed that on 18-10-1999 he prepared Ext.P6, a second scene mahazar and that he got the plan of the scene prepared by the Village Officer and that he had forwarded the material objects to the court and that after completing the investigation charge sheet was laid alleging offences under Sections 302 and 394 IPC.
21. The injuries sustained to Roy was proved by the Crl. A. No. 2530/06 -20- testimony of PWs-1, 2, 5, 8, 11 and 30 and also by Exts.P1, P9 and P4. Though the evidence of PWs.5 and 8 would show that Roy was talking soon after the sustaining of injury he did not stated as to how he sustained injury. The nature of injury revealed by the evidence of PW-2 would show that injury was very grave and there was depressed communited fracture over scalp frontal region and there was infiltration of blood into brain cavity. Automatically there would be a shock and loss of orientation. He had lost the equilibrium and had been trying to sit or lie and that was the only request by him to PWs-5 and 8. It appears that the statements by the deceased to PWs-5 and 8 are mere gibberings. As he was in shock, he could not state as to how he sustained injury. In short, he couldn't state as to how he sustained injury. No reliance can be given to gibberings.
22. As mentioned earlier there are two scene mahazars, viz. Exts. P6 and P24. It appears that there is Crl. A. No. 2530/06 -21- slight change of the place of occurrence. Exts. P6 and P24 narrate two different spots as place of occurrence. As to how it occurred is not revealed out by the evidence. However, it is pertinent to note that there was no projecting rock or granite pieces at both spots. Though the evidence on record would show that there were granite stone on either side of the pathway, PWs. 4 and 5 had deposed that there were no projecting stones at the pathway. To PW-2, who had deposed that the major injury found on the deceased could be caused with M.O.1, it was suggested that injury No.1 is possible if the victim falls on a stone with his head. PW-2 had deposed that it is very unlikely and that in such a fall there is possibility for sustaining other injuries apart from the injuries noted in Ext.P1. On an anxious consideration of the evidence of PW-2 with reference to the nature of injuries found, we feel that in the event of an accidental fall on a granite stone or rock as suggested by Crl. A. No. 2530/06 -22- the prosecution there is possibility for sustaining injuries on the face as well as on the body. In the absence of such injuries on the face as well as on the body, on a careful analysis of the evidence of PW2, the postmortem certificate and scene mahazars, we find that the evidence of PW-2 is believable that injury No.1, which led to the death of the deceased, could be possible with a weapon like M.O.1 and there is remote possibility for having sustained such injury by an accidental fall and that Roy had a homicidal death.
23. The next question that arises is whether the appellant is the assailant or not. To connect the appellant with the crime, the only evidence now on record is the recovery of M.O.1 and M.O. 2. There is no eye witness. No motive was also alleged against the appellant. Though the evidence of PW-8 and 11 would show that while Roy returning from shop after closing the same he used to carry money nothing was revealed out in evidence to show that Crl. A. No. 2530/06 -23- on that day either Roy was carrying any money or if he was carrying any money as to what happened to it. The evidence of PW-35 is silent as to whether he had made any investigation regarding the money or even the appellant was interrogated regarding the money.
24. As regards the wearing of M.O.2 chain, going by the evidence of PW-8, 11, 27 and 28, we find little reason to disbelieve their evidence. It is true that they had given evidence only to the effect that the chain that was worn by Roy was the one like M.O.2. It is a matter of common knowledge that generally ornaments like chain may not carry any personal identification marks. The evidence of PW-17 would show that he had made a gold chain like M.O.2 on the request of PW-27 and gave to late Roy. The evidence of PW-27 would show that on his request PW-17 made the chain. The evidence of PW-28 also corroborates with the evidence of PW-27. Though there are some minor Crl. A. No. 2530/06 -24- discrepancies in the evidence of Pws-8, 11, 27, and 28 regarding the identity of the chain we find that those discrepancies are the discrepancies of truth and there is nothing affecting credibility of their evidence as regards the identity of M.O.2. Hence we find that the evidence of PWs. 8, 11, 27 and 28 is believable and it can be safely concluded that M.O.2 was the chain worn by the deceased at the time of occurrence and it was found missing soon after Roy sustaining injury.
25. The evidence of PW-35 would show that during the interrogation the appellant gave Ext.P37(a) statement that the chain was sold by him to PW-33 and on the basis of that statement M.O.2 was seized from PW-33 on the strength of Ext.P37 mahazar wherein PW-34 is an attester. PW-33 had deposed that he had purchased M.O.2 chain from the appellant for which he had paid Rs.3000/- by two occasions and that when the police came to him along with Crl. A. No. 2530/06 -25- the appellant it was handed over to the appellant which was seized by the investigating officer on the strength of Ext.P37 mahazar. The learned senior counsel appearing for the appellant submitted that PW-33 is involved in criminal cases and he is not at all an independent witness. According to the learned counsel, so the recovery is to be disbelieved in toto. On anxious consideration of the evidence of PW-33, 34 and 35, we fail to find that PW-33 is anyway not an independent witness, but partisan, or that he is having any inclination to give evidence at the instance of the prosecution against the appellant. Though there are some minor discrepancies in the evidence of PW-33 regarding the purchase of the same from the appellant we find that his evidence regarding the purchase of the same from the appellant cannot be thrown out in toto. His evidence regarding recovery is believable and find that M.O.2 was seized from PW-33 as deposed by PW-35.
Crl. A. No. 2530/06 -26-
26. The question then arises is whether such recovery is sufficient enough to come to a conclusion that the appellant is the person who robbed the same from the deceased. The prosecution would canvass a presumption in favour of the prosecution and against the appellant on the basis of Section 114(a) of the Evidence Act. A reading of Section 114 would be appropriate for easy appreciation of the prosecution case:
"114. Court may presume existence of certain facts:--
The court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events human conduct and public and private business, in their relation to the facts of the particular case.
The court may presume--
(a) that a man who is in possession of stolen goods soon after the theft is either the theft or has received the goods knowing them to be stolen, unless he can account for his possession;
xxx xxxx xxx xxxx Section 114(a) of the evidence Act would show that a presumption in favour of the prosecution could be drawn only if the person from whom it was recovered was Crl. A. No. 2530/06 -27- possessing the same soon after the theft (herein the case is robbery). In the cross examination of PW-33 it is revealed that he purchased the same in the year 1998. It is nearly four years after the crime and the recovery is one year thereafter. The learned senior counsel for the appellant also argued that such a belated recovery is not at all sufficient to implicate the appellant with the offence alleged. We find merit in the submission made by the learned senior counsel, especially when the prosecution could not give any explanation as to what the appellant was doing with the same soon after the alleged crime. We are forced to accept the argument of the learned senior counsel appearing for the appellant and find that it is not at all safe to rely upon the recovery of M.O.2. after a period of five years to canvass a presumption under section 114(a) of the Evidence Act in favour of the prosecution because, even believing the prosecution case as such, the appellant was said to be in Crl. A. No. 2530/06 -28- possession of M.O.2 after a gap of five years.
27. According to the prosecution, the recovery of M.O.1 is the second strong piece of evidence against the appellant. M.O.1 was seized on 1-5-1999 from PW-29. There is no case for the prosecution that M.O.1 is belonging to the appellant, but it belonged to PW-29. The attempt of the prosecution is that the appellant was employed in a factory run by PW-29 and he had taken the same from the factory and after using the same for the crime it was replaced at the factory. Regarding that there is no supporting evidence. Though Ext.P34 account book maintained by PW-29 was brought in evidence, there is no material to come to a conclusion that the appellant was working in the factory on the previous day or on the following day or any day near to the date of occurrence. In the event the appellant was working in the factory around the date of occurrence, Ext.P34 would have contained entries regarding the Crl. A. No. 2530/06 -29- payment of wages to the appellant. But, there is no any such entry. Since there is nothing on record to show that the appellant was employed in the factory owned by PW-29 in and around the days of occurrence we are unable to give any relevance to the recovery of M.O.1 to connect the appellant with the offence alleged. With the materials on record, the appellant had no chance to take it from the factory premises and replacing it after the crime. If the prosecution case that it was with M.O.1, the deceased was assaulted, there is no evidence to conclude that the appellant had any occasion to get it.
28. We don't omit to note that in Ext.P31 report, PW- 31, the Scientific Assistant attached to the Forensic Science Laboratory had reported that M.O.1 contained blood stain. As we mentioned earlier the recovery of M.O. 1 is more than five years after the occurrence. It is not disputed that M.O.1 was being used in the factory of PW-29, though not Crl. A. No. 2530/06 -30- on daily basis, frequently and if any blood stain was found after five years it could not be concluded that it was the stain sustained five years back. So the presence of blood stain on M.O.1 also cannot be taken as any reliable evidence to come to a conclusion that M.O.1 was the weapon used for the committing of the crime. The investigation is silent as regards the clothings of the appellant at the time of occurrence. There is no whisper in the evidence of PW-35 that PW-35 had made any enquiry about the clothings or any material was disclosed to come to a conclusion that the clothings were destroyed for ever.
29. As regards the weapon there is yet another strong circumstance against the prosecution. According to the prosecution the deceased was robbed off the chain as well as about Rs.4000/- that he was carrying as daily collection from the provision shop. M.O. 3 hook of the chain would show that there was atleast some force applied for Crl. A. No. 2530/06 -31- snatching the chain. So also for robbing money, application of force is essential. If force is applied with hand for snatching chain and money, there is every chance for the assailant losing grip on M.O.1. It might have fallen down. in the thick of darkness, the assailant wouldn't have got opportunity to take it and escape, especially when PW-5, 8 and others rushed to the spot on hearing the cry. It is not at all revealed as to whether the first attempt was to robe off or whether the injury was inflicted before robbing off. However, it is very unbelievable that despite the robbing of the chain as well as the money the assailant had ran away from the scene with the weapon used. So on that ground also we are persuaded to reject prosecution evidence regarding the weapon used for inflicting injuries.
30. We notice that at the time when Ext.P24 mahazar was prepared by PW-23, neither M.O.3 hook nor M.O.4 cross was found anywhere near the spot of occurrence. But Crl. A. No. 2530/06 -32- on 16th , the hook and cross of the chain were found at the place of occurrence and seized by PW-21 on the strength of Ext.P7 mahazar. It appears that the same might have been planted there by someone else. We also notice that there was some attempt to divert the attention of the investigating officer by staining blood coloured substance on the house of PW-4 and the trees in and around the house. During the investigation, it was revealed that the red stains were not of blood but by some artificial material. We also notice that there was some attempt to implicate PW-4. It was with intention to divert the attention of the investigating officer and to materialise that the walls of the house of PW-4 and trees around were stained with blood like substance and scandal was spread against PW-4. Though PW-4 had deposed that the appellant spread scandals, we are afraid to connect the appellant with the crime on that weak piece of evidence, for which there is no Crl. A. No. 2530/06 -33- supporting evidence by any person who has got knowledge regarding the source of scandal. However, we refrain from making any mention regarding the evidence of the prosecution on that aspect. So also the prosecution had adduced some evidence to bring on record that the appellant had some bad precedents. The evidence on that aspect is fully irrelevant and totally unwarranted. The learned Public Prosecutor who conduct the prosecution should not have adduced such evidence and the learned Sessions Judge should not have recorded the same.
31. To conclude, we find that the evidence on record regarding recovery of M.Os. 1 and 2 is not sufficient enough to establish the offence alleged against the appellant beyond the shadow of doubt. The appellant is entitled to the benefit of reasonable doubt. The conviction and sentence impugned are liable to be set aside. The appeal succeeds. Accordingly, it is allowed. The conviction and sentence Crl. A. No. 2530/06 -34- under challenge are set aside. The appellant is set at liberty. The registry shall address the Superintendent of Prison concerned to release the appellant forthwith in the event his continued detention is not warranted in connection with any other case.
32. We also notice that the learned Sessions Judge had ordered confiscation of M.Os. 2, 3 and 4. What persuaded the learned Sessions Judge to confiscate M.Os. 2, 3 and 4 is not disclosed. We find that those valuable properties are liable to be returned to PW-11, the father of the deceased and order accordingly. The property disposed by impugned judgment shall also stand modified to that extent.
(PIUS C.KURIAKOSE, JUDGE) (P.S.GOPINATHAN, JUDGE) ksv/-