Kerala High Court
Sirajudheen vs Stateof Kerala on 1 April, 2016
Bench: P.Bhavadasan, V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 1ST DAYOF APRIL 2016/12TH CHAITHRA, 1938
CRL.A.No. 490 of 2012 (A)
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SC 272/2006 of II ADDITIONAL SESSIONS COURT,PALAKKAD
CP 11/2006 of J.M.F.C.-II,PALAKKAD
CRIME NO. 188/1995 OF TOWN NORTH POLICE STATION, PALAKKAD
APPELLANT(S)/APPELLANT/ACCUSED NO.1:
-----------------------------------
SIRAJUDHEEN
S/O.ABDUL JABBAR, SAFA NAGAR, 2ND MILE, KURICHAMKULAM, PIRAYIRI,
PALAKKAD (NOW RESIDING AT C/O.K.I.ISMAIL, KORANKAD, MATHUR P.O.,
PALAKKAD).
BY ADVS. SRI.T.D.ROBIN
SRI.MANOJ RAMASWAMY
SMT.SANJANA R.NAIR
SMT.V.SREEJA
RESPONDENT(S)/COMPLAINANT:
--------------------------
STATEOF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR V.H. JASMINE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.3.2016, ALONG
WITH CRA. 1137/2012 AND CRA.322 OF 2013, THE COURT ON 01-04-2016 DELIVERED
THE FOLLOWING:
P.BHAVADASAN &
RAJA VIJAYARAGHAVAN.V., JJ
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Crl.A.Nos.490 & 1137 of 2012
&
322 of 2013
- - - - - - - - - - - - - - - -
Dated 1st April, 2016
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JUDGMENT
Raja Vijayaraghavan.V.
1.Mohammed Haneefa, a taxi driver operating from the taxi stand attached to the Olavakkode Railway station did not return back home after he was hired for a trip by a young man at 9.a.m. on 23.4.1995. The investigation conducted by various officers and different agencies did not yield any clue with regard to the whereabouts of the missing person. After about 10 years, PW 19, the Circle Inspector of Police , Town North Police Station stumbled across vital information pointing to the alleged involvement of the appellants in the crime. Investigation was conducted by PW 20, the Detective Inspector, CBCID, and he pieced Crl.A.490 & 1137 of 2012 and 322 of 2013 2 together various circumstances which according to the officer pointed to the involvement of the appellants .
2.They were consequently charged for the ruthless murder for gain and tried for having committed offeces punishable under sections 120-B, 364, 302, 392, 201, r/w section 34 of the IPC . As per judgment dated 16/03/2012, the appellants were found guilty and they were sentenced to-
(a). undergo life imprisonment and to pay a fine of Rs.
20,000 with a default clause of R.I. for 10 months for the offence under section 302 of the IPC;
(b). undergo life imprisonment and to pay a fine of Rs. 20,000 with a default clause of imprisonment for 10 months for the offence under section 120 B read with section 302 and 392 of the IPC.
(c). undergo rigorous imprisonment for seven years Crl.A.490 & 1137 of 2012 and 322 of 2013 3 and to pay a fine of Rs. 10,000 with a default clause of imprisonment for five months for the offence under section 392 of the IPC.
(d). undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5000 with a default clause of imprisonment for three months for the offence under section 364 of the IPC.
(e). undergo rigorous imprisonment for three years and pay a fine of Rs. 2000 with a default clause of imprisonment for one month under section 201 of the IPC. The substantive sentence of imprisonment awarded under section 302 and 120 B of the IPC were ordered to run concurrently. The above finding of guilt conviction and sentence is assailed in these appeals.
3.The prosecution case unfurled in the following manner:-
Crl.A.490 & 1137 of 2012 and 322 of 2013 4 Deceased Mohammed Haneefa was a taxi driver.
His son Abdul Manaf - PW 3 , who is the first informant, is also a taxi driver and they were operating from the taxi stand attached to the Olavakkode Railway Station. The ambassadaor car bearing registration No KLZ 871 plied by Mohammed Haneefa was owned by him. On 23-4-1995 at about 9 AM, a young man aged between 25 and 30 years approached PW 3 and asked whether he could hire his Taxi to go to Alathoor after picking up a marriage broker from a place called Kuzhalmannam. It seems that he divulged to PW 3 that it was for seeing a girl in connection with a proposal for marriage. The vehicle of PW 3 was already hired by another and therefore he suggested to the stranger that he approach his father Mohammed Haneefa, who was standing nearby. PW 3 then went to wash his face and on his return saw his Crl.A.490 & 1137 of 2012 and 322 of 2013 5 father driving off with the stranger, who was seen sitting on the front seat. His father waved at him and drove off. That was the last time he saw his father. He went home on 25.04.1995 and he was told by his family members that his father had not returned home till then. Under the impression that his father had gone for a long trip he decided to wait. When there was no news about his father even on 26.6.1995, he decided to set the law in motion and approached the Town North police station and laid Ext.P5 FI Statement. He stated in Ext.P5 that the person who had gone with his father was one aged between 25 and 30 years and was wearing a khaki shirt and trouser. PW18, the Asst.Sub Inspector of Police, Town North police station registered Ext.P5(a) FIR .
4.It has to be mentioned here that no material has been Crl.A.490 & 1137 of 2012 and 322 of 2013 6 produced by the prosecution as to who conducted the investigation later and how it progressed. It can be discerned from the record that the investigation was taken over by the Crime Branch CID. Ultimately it seems that a report was submitted before Court that the case was being closed as undetected.
5.A decade passed by. On 13.02.2005, PW19 the Circle Inspector of police, Town North Police station received an anonymous call at 10.30 a.m as per which he was informed that the person involved in the mysterious disappearance of the taxi driver Mohammed Haneefa had arrived from Pune and was in the house of one Muhammadali. The person was described as fair and he also sported a beard. He inquired about the veracity of the statement furnished by the anonymous caller and was satisfied about its genuineness. He Crl.A.490 & 1137 of 2012 and 322 of 2013 7 along with the police party reached the house of Muhammadali at Safa Nagar and found a bearded person who was fair in complexion. When questioned about his identity , the stranger initially stated that his name was Faisal and he had come from the Gulf. Repeated questioning of the said person revealed that his actual name was Sirajudeen, who is arrayed as the 1st accused in this case. On being quizzed about the incident involving the disappearance of Mohammmed Haneefa, he eventually disclosed that he was involved in the said incident. A1 was arrested at 12.00 p.m as per Ext.P15 arrest memo. Later in the day, Ext.P18 FIR was registered under S.41(a) of the Cr.P.C. Further questioning of the 1st accused revealed the complicity of accused Nos.2 and 3. In view of the above, Ext.P19 report adding S.120B, 364, 302, 392, 201 r/w S.34 IPC was submitted before the learned Crl.A.490 & 1137 of 2012 and 322 of 2013 8 Magistrate. The 1st accused was produced before court along with Ext.P20 remand report. Thereafter, investigation was handed over to the Superintendent of the Crime Branch, Palakkad.
6.PW20, the Detective Inspector, CBCID, took over investigation on 16.02.2005. It came to his notice that the aforesaid crime was lying undetected and had been earlier closed by the Crime Branch. In view of the above, Ext.P 23 report was submitted before the Judicial First Class Magistrate -II, Palakkad seeking to reopen the investigation. On 18.02.2005 at 4.30 a.m., he arrested accused Nos.2 and 3 from near the RMS office near to the Olavakkod Railway station. Ext.P26 report was submitted before the learned Magistrate detailing the addresses of accused Nos.1 to 3. Ext.P26 and P27 are the arrest memos in respect of accused Crl.A.490 & 1137 of 2012 and 322 of 2013 9 Nos.2 & 3. The accused were produced before court along with a remand report. On 22.02.2005, Ext.P28 application was filed before the learned Magistrate for obtaining police custody of accused Nos.1 and 2. Their custody for the period from 24.02.2005 to 28.02.2005 was granted by the learned Magistrate as per Ext.P29 order. Ext.P30 report was submitted seeking remand of the 1st accused Sirajudeen in CBCID Crime No 122/CR/95. On 23.03.2015, Ext.P 31 application was filed seeking issuance of production warrant in respect of the first accused. Thereafter, Ext P 32 report was submitted before the Chief Judicial Magistrate Court, Palakkad seeking to conduct test identification parade of the 3rd accused. Ext.P32 is the report submitted. When the 1st accused was questioned, he is alleged to have disclosed the place where the body of deceased Mohammed Haneefa was Crl.A.490 & 1137 of 2012 and 322 of 2013 10 dumped and based on Ext P3(a) disclosure statement, the accused was taken to the place and Ext.P 3 mahazzer was prepared in the presence of witnesses. On questioning the 2nd accused he is alleged to have disclosed that he has secreted the R.C. Book of the vehicle belonging to deceased Mohammed Haneefa and the same was kept along with his own license in a table inside the bed room of his house and based on Ext.P8(a) disclosure statement RC Book of ambassador bearing registration No KLZ 879 which stood in the name of Mohammmed Haneefa was seized as per Exhibit P 8 mahazer. When A 1 Sirajudeen was questioned he is alleged to have disclosed to PW 20 that he would point out the place where the car was stopped and based on the Ext.P 10
(a) statement, the said accused was taken to Vellapparakkunnu where he pointed out a place in the Crl.A.490 & 1137 of 2012 and 322 of 2013 11 Palakkad - Thrissur Highway. Ext.P 10 is the mahazar prepared at the spot . The 1st accused is alleged to have confessed that the driving license of the deceased was concealed in the almirah of his house and based on Ext.P11(a) disclosure statement the driving licence of deceased Mohammed Haneefa was seized as per Ext.P 11 mahazer. Thereafter, the accused 1 and 2 were taken to the District Hospital Palakkad and after conducting their medical examination they were produced before the jurisdictional Magistrate. The mahazers prepared in the above case were produced before the learned Magistrate. Thereafter, Ext.P 33 report was submitted requesting that the case records in respect of crime number 253/1995 of the Puliyampatty police station retained before the Satyamangalam Magistrate Court be transferred to the court of the Judicial Magistrate of Crl.A.490 & 1137 of 2012 and 322 of 2013 12 the First Class, Palakkad. In response, Ext.P 34 report was received informing that the records in crime number 253 of 1995 of Puliyampatty police station had already been destroyed. Thereafter on 04.04.2005 report was submitted before the learned magistrate requesting to record S. 164 statement of PW 10 Ibrahim. He later questioned all the witnesses and on 7.10. 2005, he submitted the draft charge for approval of the Additional Government Pleader. Thereafter, the succeeding Detective Inspector submitted final report before court. The said officer left the world for his heavenly abode.
7.It is also deposed by PW 20 that the photograph of the person found dead at Puliayampetty was gathered by him .The source is not divulged.
Crl.A.490 & 1137 of 2012 and 322 of 2013 13
8.The court before which the final report was laid took cognizance of the offence and finding the offence to be exclusively triable by the Court of Sessions, committed the case to the Court of Sessions, Palakkad , under Section 209 of the Cr.P.C. after complying with the legal and procedural formalities. The case was made over to the Additional Sessions Court for trial and disposal . The latter Court, on receipt of the records and on appearance of the accused before the said court framed charge for the offence punishable under Section 364 , 120 B , 302 , 302 r/w 120 B , 392 , 392 r/w 120 B and section 201 r/w Section 34 of the IPC .
9.When the charge was read over and explained to the accused, they pleaded not guilty and claimed that they be tried. The prosecution therefore examined as many Crl.A.490 & 1137 of 2012 and 322 of 2013 14 as 20 witnesses as PWs 1 to 20 and had Exts.P1 to P 36 marked.
10.At the close of prosecution evidence, the accused were questioned under Section 313 of the Cr.P.C with regard to the incriminating circumstances brought out in evidence against them. They denied the circumstances and maintained that they were innocent.
11.Apart from denying the incriminating circumstances , the 1st accused stated that he was falsely implicated in the case by the police.The 2nd accused stated that the Circle Inspector of Town North police station Palakkad had called him over phone on 10.02.2005 and asked him to appear before him and on his appearance , he was arrested. He was produced Crl.A.490 & 1137 of 2012 and 322 of 2013 15 before the learned Magistrate only on 18.2.2005. He was illegally detained in various places and finally his brother had filed a complaint before the Revenue Divisional Officer . Search was conducted at the police station by the RDO but he could not be found as he was shifted to other locations. He was made to sign on various papers and according to the 2nd accused he was falsely implicated for filing a complaint against the police before the RDO. The third accused stated that on 10.02.2005 he was summoned to the North police station by PW19. He was illegally detained and he was later handed over to the crime Branch police. It was after completion of four remand periods that his test identification parade was conducted. According to him, his face was not covered and was brought to the Magistrate Court in public view. He asserted that he was innocent and he had nothing to do with PW 10- Crl.A.490 & 1137 of 2012 and 322 of 2013 16 Ebrahim. He denied having given any statement or having made any confession to Ebrahim.
12.Finding that the accused could not be acquitted under S.232 of the Cr.P.C., they were asked to enter on their defence. DW 1 and 2 were examined on their side .
13.The learned Sessions Judge after appreciating the case of the prosecution came to the conclusion that the prosecution had succeeded in proving that the dead body found at Puliyampatty on 24.4.2005 was that of deceased Mohammed Haneefa and that the evidence let in clearly revealed that the deceased was induced by the 3rd accused to go for a trip early in the morning of 23.4.1995. In order to connect the accused with the crime, the learned Sessions Judge placed Crl.A.490 & 1137 of 2012 and 322 of 2013 17 implicit reliance on an alleged extra judicial confession made by the 3rd accused to PW 10 , Ebrahim . The recovery of RC Book of the deceased at the instance of the 2nd accused and the license on the basis of the disclosure statement made by the 1st accused was considered as additional materials to connect the accused with the crime. On the basis of the above materials the learned Sessions Judge concluded that the evidence on record revealed that Mohammed Haneefa was induced to go with the appellants on a trip and in the course of the journey, the deceased was overpowered and murdered inside the car itself. The dead body of Mohammed Haneefa was then dumped near Puliampatti near Sathyamangalam. Holding so, the appellants were convicted and sentenced as aforesaid. The aforesaid finding of guilt, conviction and sentence are assailed in these separate Crl.A.490 & 1137 of 2012 and 322 of 2013 18 appeals.
14.We have heard Sri.T.D.Robin the learned counsel appearing for appellant No.1, Sri.B.Raman Pillai, the learned Senior counsel who appeared for the accused No.2 and Sri.Bobby Raphael, the learned counsel who appeared for the accused No.3.
15.It would be apposite to refer to the rival submissions at the threshold itself to have a proper insight of the oral as well as documentary evidence. The learned Senior counsel, who led the arguments , persuasively argued that none of the ingredients of the offence was proved in the instant case which rested solely on circumstantial evidence. It was highlighted that the investigation, in so far as the instant case is concerned, practically commenced after a decade of Crl.A.490 & 1137 of 2012 and 322 of 2013 19 the alleged disappearance of Mohammed Haneefa. According to the learned senior counsel, conclusion is inescapable , that evidence was meticulously cooked up by the prosecution , and the same is obvious even to an untrained eye None of the circumstances were conclusively proved by the prosecution to bring out the involvement of the appellants in the alleged crime. According to the learned counsel, there has not been a proper appreciation of the evidence let in by the prosecution and the conclusion arrived at by the learned Sessions Judge is based on surmises and conjectures.
16.The learned Senior counsel would emphatically assert that the prosecution had failed to prove the identity of the dead body found near Chinnavayputhur by the side of Puliampatti Sathyamangalam main road in the Crl.A.490 & 1137 of 2012 and 322 of 2013 20 year 1995 as that of deceased Mohammed Haneefa. Referring to the evidence of PW1 & PW2 it was submitted that Ext.P1 and P2, which are the requisition to conduct a post mortem and the post mortem notes respectively in Crime 253 of 1995 of Puliyampatty Police station would totally jettison the prosecution case. It was pointed out that the learned Sessions Judge committed a grave illegality in marking Ext.P2, the post mortem notes prepared by PW 1 without even obtaining a proper translation of the entries which were in Tamil language. According to the learned counsel, if those entries were understood the learned Sessions Judge would have had no other option but to throw out the prosecution case as it would have revealed beyond doubt that the body found there could not have been that of Mohammed Haneefa. If there is no conclusive finding in that Crl.A.490 & 1137 of 2012 and 322 of 2013 21 regard, according to the learned Senior counsel, the whole prosecution case will have to bite the dust.
17.It is further submitted that the learned Sessions Judge has relied on Ext.P6 photograph to come to a conclusion that the body referred to in Ext.P1 and P2 and spoken to by PW1 and PW2 was that of Mohammed Haneefa. He pointed out that Exhibit P 34 is the reply issued to the Investigating officer from the office of the learned Magistrate at Satyamangalam, in which it was emphatically stated that all the records in Crime 253 of 1995 involving the death of a person in a motor vehicle accident had been destroyed. It is pointed out by the learned Senior counsel, that the prosecution was not able to disclose the source from where Ext.P4 photograph was seized. No mahazer is seen prepared and no person has been examined to Crl.A.490 & 1137 of 2012 and 322 of 2013 22 prove the seizure of the photo . It is further stated that the description of the body and the clothes in Ext.P 1 and Ext.P 2 would militate against the clothes worn by the deceased in the photograph and what was spoken to by PW 3 and 17. According to the learned Senior Counsel, this was yet another reason to suspect the prosecution case that the body found on the side of the road was that of Mohammed Haneefa.
18.It was pointed out by the learned senior counsel that the unique feature of the instant case is that in respect of the earlier investigation conducted pursuant to Ext.P5 dated 26.4.1995, no records except for Ext.P5 complaint of PW3 is available before Court. The Court is kept in the dark as to the nature of investigation conducted, the officers who conducted the investigation, the materials collected etc. It was Crl.A.490 & 1137 of 2012 and 322 of 2013 23 after the arrest of the 1st accused Sirajuddin on 13.2.2005 that the case originally closed was reopened. The prosecution has built its case from scratch after ten years and except for PW3 and PW17, who are son and wife respectively of Mohammed Haneefa, all the other witnesses come into the picture only at that juncture. This aspect was highlighted by the learned Senior counsel to label the prosecution witnesses who are cited to prove that the deceased was seen with the accused as totally untrustworthy. It was inconceivable as to how the Investigating officer would have known that they had occasion to see the deceased and the accused together. This is a serious lacuna in the prosecution case is the submission of the learned Senior Counsel.
19.It is further submitted by the learned Senior counsel Crl.A.490 & 1137 of 2012 and 322 of 2013 24 that the recovery of Ext. P 6 duplicate R.C book in respect of ambassador car bearing No.KLZ 879 from the house of the 2nd accused and the recovery of Ext.P 9 driving licence of the deceased from the house of the 1st accused after ten years of the incident would amply portray the extent of manipulation carried out by the investigating agency. There is no reason as to why the duplicate copy of the R.C book as well as the license of the deceased should have been retained by the appellants as a memento for having committed the murder. Referring to the evidence of the prosecution, it was submitted that the defence was able to bring out that the R.C book as well as the license was planted in their house at a later point of time to connect the appellants with the crime. According to the learned Senior counsel no reliance ought to have been placed on the above Crl.A.490 & 1137 of 2012 and 322 of 2013 25 concocted evidence.
20.It is further submitted that the evidence let in by the prosecution by examining PW4 , PW9, PW11, PW12 and PW16 are deficient and lacks credence to conclusively connect the appellants with the crime.
21.The learned counsel appearing for the 1st accused would submit that there is no evidence worth the name to connect the said accused with the crime. The learned counsel pointed out that PW8, who was examined to prove the recovery of Ext.P7, had stated that he had stood outside the house of the 1st accused and the 1st accused and the police had come from inside of the house .According to the learned counsel , the police had stage managed a recovery and that by itself will not connect the appellant with the murder of Crl.A.490 & 1137 of 2012 and 322 of 2013 26 Mohammed Haneefa. The learned counsel would also support the contentions of the learned Senior Counsel.
22.The learned counsel appearing for the 3rd accused would submit that the main piece of evidence to connect him with the crime is the identification by PW 3 and PW 4 that he is the person who had hired the taxi of Mohammed Haneefa on 23.4.1995. According to the learned counsel, failure to describe the specific physical features of the person who had hired the Taxi will make their version suspect. It is further submitted that the Test Identification parade conducted by PW13 , the learned Magistrate on 21.3.2005 , was a stage managed affair and the accused was brought to the Magistrate Court in full public view after he was remanded four times after his arrest. All the family members of the deceased had the chance to see him Crl.A.490 & 1137 of 2012 and 322 of 2013 27 when he was produced before the learned Magistrate after his arrest on 18.2.2005.
23.It is further submitted by the learned counsel that the learned Sessions Judge had clearly erred in placing reliance on the evidence of PW10 Ibrahim. After inviting our attention to the evidence of PW10 it was submitted that there was no reason for the 3rd accused to give an extra judicial confessional statement to the witness. It is pointed out that the witness had not disclosed the fact that the 3rd accused had confessed to the crime committed by himself and the others for ten long years. Prosecution has no case as to how the Investigating Officer chanced upon PW10 as the person to whom the extra judicial confession was made by the accused No.3. Further, it is pointed out that the confession made by Crl.A.490 & 1137 of 2012 and 322 of 2013 28 A3 is clearly exculpatory as the overt acts are all placed on the shoulders of accused Nos.1 and 2. Further it is submitted that the self exculpatory confessional statement made by a co-accused cannot be used to convict the other accused in the crime when no other convincing evidence was available.
24.Per contra, the learned Public Prosecutor would emphatically submit that the taxi driver was induced by the appellants to go for a trip and he was brutally manhandled inside the car till he died and then he was dumped at Chinnavayputhur in Tamil Nadu. The extra judicial confession made by the 3rd accused to PW10 clearly revealed the complicity of the accused. The recovery effected at the instance of the accused conclusively established their role in the crime. The medical evidence clearly revealed that the dead body Crl.A.490 & 1137 of 2012 and 322 of 2013 29 found at Chinnavayputhur was that of Mohammed Haneefa and PW3 and PW17 who are the son and wife respectively of the deceased had identified the photograph of the dead body. According to the learned Public Prosecutor the prosecution has successfully established a complete and unbroken chain of events leading to the unmistakable inference that the accused were the persons who were responsible for the homicidal death of the deceased Mohammed Haneefa as a result of the inflicted injuries. It is submitted by the learned Public Prosecutor that the learned Sessions Judge has appreciated the evidence in the proper perspective and have arrived at the correct finding and no interference is warranted.
25.After having heard the respective counsels in extenso, we shall remind ourselves of the principles Crl.A.490 & 1137 of 2012 and 322 of 2013 30 which should guide and weigh with the Courts administering criminal justice while dealing with a case based on circumstantial evidence. These principles have been succinctly laid down by the Apex Court and have been reiterated time and again. Before making an endeavor to appreciate the rival contentions, we shall remind ourselves of the principles.
26.In Vasanta Sampat Dupare v. State of Maharashtra (2015 (1) SCC 253) a three Judge Bench of the Apex Court has reiterated the principles in these lines :-
[34]. Regard being had to the aforesaid circumstances, it is to be seen whether on the basis of the said circumstances, it can be held whether such circumstances lead towards the guilt of the accused regard being had to the principle that they lead to a singular conclusion that the appellant is guilty of the offence and it does not allow any other probability which is likely to allow the presumption of innocence of the accused. In this context, we may refer with profit to the Crl.A.490 & 1137 of 2012 and 322 of 2013 31 decision rendered more than six decades back in Hanumant Govind Nargundkar v. State of M. P., AIR 1952 SC 343 : 1953 CriLJ 129 wherein it has been held as follows: (AIR pp. 345-46, para 10) "10. ... 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 tendency 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."
[35]. In Sharad Birdhichand Sarda v. State of Maharashtra, 1984 (4) SCC 116: 1984 SCC (Cri) 487 the five golden principles which have been stated to constitute the "panchsheel" of the proof of the case based on circumstantial evidence are:
(i) that the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely "may be" fully established;
(ii) that the facts so established should be consistent only with the hypothesis of the Crl.A.490 & 1137 of 2012 and 322 of 2013 32 guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(iii) that the circumstances should be of a conclusive nature and tendency;
(iv) that they should exclude every possible hypothesis except the one to be proved; and
(v) that 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.
27.The learned trial Judge adverted to the following circumstances, which conclusively established the guilt of the appellants . They are -
(a). The deceased Mohammed Haneefa died a homicidal death as a result of inflicted injuries .
(b). The taxi car of the deceased was hired by the 3rd accused and the deceased was found driving the car with the 3rd accused sitting on the front seat of the car Crl.A.490 & 1137 of 2012 and 322 of 2013 33
(c). The accused was seen with the deceased at various places by persons including persons who were having acquaintance with the deceased .
(d). Extra judicial Confession made by the 3rd accused to PW 10
(e). Test identification parade of A3.
(f). Recovery of duplicate copy of licence of Mohammed Haneefa based on the disclosure statement made by accused No. 1.
(g). Recovery of duplicate copy of R.C Book of Car belonging to Mohammed Haneefa based on the confessional statement of Accused No 2 .
(h). The disclosure by the 3rd accused as to the place where the dead body of the deceased was dumped and also the place where the Taxi Car was stopped.
28.The first and foremost circumstance that the Crl.A.490 & 1137 of 2012 and 322 of 2013 34 prosecution had striven to prove was that the body found lying near Chinnavayi Puthur Road Junction by the side of the Puliyampatti - Satyamangalam Public road on 23.4.1995 was that of deceased Mohammed Haneefa. As stated earlier, Mohammed Haneefa had gone missing on 23.4.1995 and in view of Ext.P 5 lodged on 26.4.1995 by PW 3, there is no reason to doubt the same. The prosecution case is that after the arrest of the 1st accused on 13.2.2005, the actual cause of disappearance of Mohammed Haneefa came to light. According to the prosecution, it was on 25.2.2005, that based on Ext.P3(a) disclosure statement that the first accused had led PW 20 to Chinnavayi puthur and pointed out the place where the dead body of Mohammed Haneefa was dumped. He prepared Ext.P3 mahazer evidencing the same in the presence of PW2, Sub Inspector of Police Crl.A.490 & 1137 of 2012 and 322 of 2013 35 Kadathoor Police Station, Tamil Nadu. PW2 was the head constable of the Puliyampatti Police station in the year 1995.
29.The prosecution as well as the defence rely on the evidence of PW1, the doctor who conducted the postmortem and PW15, the Village Administration Officer Vinnappalli to advance their respective contention with regard to the identity of the body found by the side of the road at Chinnavayi Puthur . When the defense contends that the evidence of the above witnesses would clearly show that the body was that of some other person , the prosecution would assert that the body found was that of Mohammed Haneefa.
30.The prosecution alleges that PW20, on a detailed Crl.A.490 & 1137 of 2012 and 322 of 2013 36 inquiry conducted after preparation of Ext.P3 mahazer in respect of the place where the body was dumped, came to understand that on 24.4.1995, crime No 253 of 1995 was registered at the Puliyampatti Police under section 304 A of the IPC. His enquiries led him to PW15, the Village Administration Officer of Vinnappalli village during the year 1994-95.
31.When he was examined, PW15 would depose that he was informed by one Kaliyappan, the village assistant, at 7.30 a.m on 24.4.1995 that the dead body of a person was lying on the road margin near the bridge at Chinnavayi Puthur. He went and inspected the body and noticed injuries on the body of the deceased. The body had started to decompose and a bad odour was emanating from the body. He identified Ext.P4 photograph and stated that it was the photograph of Crl.A.490 & 1137 of 2012 and 322 of 2013 37 the person who was found dead in 1995. He also would depose that the he had found on the body a Khaki shirt and a dhoti. He clarified that it was a lunki. PW15 stated that the body was lying in the said place since the afternoon of the previous day and that the police had registered a case after concluding that it was a motor traffic occurrence.
32.Next is the evidence of PW1, the doctor who had conducted the autopsy. It was through PW1 that the prosecution had marked Ext.P 1 and P2. Ext.P1 is the requisition made by the Inspector of Police to PW 1 to conduct post mortem and Ext. P2 is the photocopy of the notes prepared by PW1 at the time of conduct of the autopsy. Ext.P22 and P21 are the certified copies of Ext. P1 and P2. It has to be mentioned here that the postmortem certificate, inquest or any of the other Crl.A.490 & 1137 of 2012 and 322 of 2013 38 contemporaneous records prepared on 24.4.1995 in connection with crime No. 253 of 1995 of the Puliyampatti Police station could not be traced out as it was ordered to be destructed on 30.6.2001. One has to rest content with the notes prepared by PW1. Ext.P1 is written in Tamil Language and no attempt was made before the trial court to obtain a translation in respect of the contents. In view of the rival submissions , we had directed the registry to direct the official translator to translate the contents of Exhibit P 1. The translation was placed before us and we had the advantage of understanding its contents.
33.In his evidence PW 1 stated that he had worked as the Medical Officer-in-charge, Government hospital, Sathyamangalam. On 24.4.1995 he had received a requisition from the Inspector of police for conducting Crl.A.490 & 1137 of 2012 and 322 of 2013 39 the post-mortem examination of an unknown body of a male said to have been found near the road junction at Chinnavayi Puthur. He had noted the following injuries -
(a). antemortem incised wounds, forehead between eyebrows vertically up above the eyebrow level 4 X 2 cm exposing the bone with crackling sensation with bloody serum oozing out.
(b). A sharp incised injury right rear scalp, exposing the skull 3 X 3 cm dark red blood allowing a probe deep up to 6cm into the skull.Opening of the scalp confirmed 1 cm X1 cm hole in the skull with a clot of blood on the base of the skull and meninges corresponding to the area.
(c). right side scalp is full of subcutaneous blood. On opening, fracture in skull base, starting from anterior cranial fossa corresponding to injury number 1, runs along with greater wing of the sphemoid and ending Crl.A.490 & 1137 of 2012 and 322 of 2013 40 in just behind temporal bone right side with entire piece shaking and blood clots about 60 g found in the area.
(d). a gaping incised looking injury, left inguineal region 4 cm X 4 cm beefy red base with air bubbles coming out exposing muscles cutting injured blood vessels and ligaments.
34.The witness stated that the approximate time of death would have been 1 to 3 days prior to autopsy. The opinion as to cause of death was that the deceased appeared to have died due to shock and hemorrhage as a result of injuries 1 to 4. He also stated that the injuries noted could not have been caused in a road traffic accident. He also stated that he did not notice any evidence of strangulation .
35.During cross-examination the witness pleaded ignorance when he was asked whether the Sub Crl.A.490 & 1137 of 2012 and 322 of 2013 41 Inspector had specifically requested the witness to ascertain the exact cause of death. This answer of PW 1 was clearly againt the contents of Exhibit P 1 in which the Sub Inspector of Police had specifically requested the doctor to ascertain the exact cause of death. Ext.P 1 also reveals that the crime was originally registered under section 304 A of the Indian Penal code. Several abrasions were found on the body by the Sub Inspector and it was his inference in Exhibit P1 that the injuries might have been caused when the body was dragged after being hit by some vehicle. Unfortunately, the translation of Ext.P1 was not a made available before the trial court and the trial court was in dark as regards its contents.
36.PW1 would depose that he was not able to note any identification marks on the body of the deceased. This Crl.A.490 & 1137 of 2012 and 322 of 2013 42 is clearly against the entries in Exhibit P and P2, a perusal of which would reveal that identification marks were specifically noted and entered.
37.He however, admitted that in Ext.P1 it was mentioned that the injured had died in a road accident. When he was asked whether his opinion was not different from the conclusion arrived at by the Investigating officer he responded by saying that it was not a road traffic accident. However he admitted that he had not given any such opinion at the time of issuance of Ext.P2 or in the post-mortem certificate. He pleaded ignorance when he was asked whether he concurred with the opinion of the Inspector of police who had issued exhibit P 1 requisition to him. He also stated in his cross examination that he ruled out the possibility of strangulation.
Crl.A.490 & 1137 of 2012 and 322 of 2013 43
38.This aspect of the matter assumes great significance. The entries in Ext.P1 reveals that the crime was registered under section 304 A. Under the column "Manner in which the would appears to have been inflicted" it is stated that the injuries might have occurred in the course when the body was dragged after being hit by some vehicle. It is specifically mentioned in Ext. P 1 that several abrasions were noted on various parts of the body and the occurrence took place between 12.00 hours and 15.00 hours in day light. It is also discernible from Ext.P1 that the body was found in that area between 2.30 p.m. and 3 p.m. on 23.4.1995 .
39.The contention of the defence that the dead body could not have been transported from Alathoor to Crl.A.490 & 1137 of 2012 and 322 of 2013 44 Puliyampatti crossing various check posts and dumped near the Puliyampatti bridge by the side of the road between 2.30 p.m. and 3 p.m. was repelled by the learned Sessions Judge that the distance of more than 130 km could be easily traversed in a motor car. We have our own reservations in that regard on an overall appreciation of the facts. The reference in Ext.P1 that the investigation of the officer revealed that the motor occurrence took place between 12 hours and 15 hours cannot be easily ignored .
40.Even more strange is the opinion given by the witness in Chief examination that the approximate time of death was 1 to 3 days prior to the autopsy. When he was asked in cross examination whether the time of death could have been more towards 72 hours than 24 hours from the time of post-mortem he had Crl.A.490 & 1137 of 2012 and 322 of 2013 45 answered that it depends upon situation and it was possible. Further in cross-examination he had stated that he did not take any materials for the purpose of chemical examination because the body was in a decomposed state. He also stated that he found the body was displaying pugilistic attitude. The post mortem was conducted between 4.30 p.m. and 5.40 p.m. on 24.4.1995. He also stated that the rigor motis was absent when the body was placed before him. Mohammed Haneefa could have been murdered only after 10.30 p.m. on 23.4.1995, if the evidence let in by the prosecution is believed. It is inconceivable to believe that his body might have become decomposed to such an extent rendering it impossible to obtain specimens of internal organs for the purpose of chemical analysis. The doctor has specifically stated in his evidence that the body was displaying a pugilistic Crl.A.490 & 1137 of 2012 and 322 of 2013 46 attitude and quite decomposed. The finding recorded in the post mortem notes and asserted by PW 1 with regard to the probable time of death would cause unsurmountable difficulty for the prosecution and cast serious doubts as regards the credibilty of the case set up.
41.To conclude that the the body found by the side of the road was that of Mohammed Haneefa, the learned Sessions Judge has placed much reliance on Ext.P4 photograph. Ext.P4 is a colour photograph of a person lying dead after sustaining injuries. Even a casual perusal of the photograph would reveal that several abrasions and injuries were found on the forearm . No such injuries are seen noted by PW 1 in the post mortem certificate. However, PW3 and PW17 have identified Ext.P4 as the photograph of Mohammed Crl.A.490 & 1137 of 2012 and 322 of 2013 47 Haneefa. The said photograph was marked through PW3. We have scanned the whole of the prosecution records and were not able to ascertain from whose custody the photograph was seized by PW 20. No records have been produced or marked to prove the seizure of the said photograph. At the same time , Ext.P34 would reveal that the case records in crime 253 of 1995 were destroyed in routine course in the year 2001. Except for Ext.P1 and P2, the requisition and post mortem notes, no other documents pertaining to that period have been produced or marked. The negatives of the photograph are also not forthcoming. The learned Sessions Judge got over this imbroglio by concluding that the photograph might have been taken using a digital camera. We are unable to agree as digital cameras were not even commercially available for affordable prices in India in Crl.A.490 & 1137 of 2012 and 322 of 2013 48 the year 1995. To add to the agony Ext.P4 photograph was not shown to PW1 to bring out the fact that he had conducted the post mortem in respect of the person who was seen in the photograph. When PW1 asserts in his evidence that the person on whom autopsy was conducted by him was displaying a pugilistic attitude, no such inference is possible from Ext.P4 .
42.The learned Sessions Judge has placed immense reliance on the evidence of PW15 and his identification of the body seen in the photograph . This conclusion is erroneous as PW15 has stated in his evidence that a khaki shirt and a dhoti was found on the body of the deceased. He specifically stated that it was a lunki. PW3, PW9 and PW17 had stated that Mohammed Haneefa was wearing a Khaki shirt and white dhoti on Crl.A.490 & 1137 of 2012 and 322 of 2013 49 23.4.1995 In this context it would be apposite to refer to Ext.P1. Ext.P1 would reveal that the shirt found on the dead body was a white slack shirt, a white sleeveless banyan and a blue underwear. As the entries in Ext.P1 was in Tamil, this aspect was left unnoticed by the learned Sessions Judge. This apparent inconsistency in the nature and colour of the wearing apparel found on the body with that of the clothes worn by Mohammed Haneefa will exasperate the case even further for the prosecution.
43.We are afraid that these inconsistencies cannot be ignored in a case of instant nature as the whole prosecution case hinges on this circumstance. Only if the prosecution is able to establish in a conclusive fashion that that body of the person found by the side of the road was that of Mohammed Haneefa, that the Crl.A.490 & 1137 of 2012 and 322 of 2013 50 prosecution will be able to succeed in establishing the link connecting the appellants with the crime. The extent of decomposition, the approximate time of death, the apparent inconsistency in the wearing apparel , and the conclusion arrived at in exhibit P1 that the injuries noted on the body of the deceased was due to the fact that the body was dragged after the motor accident are all facts which creates serious doubt in our mind as regards identity of the person found by the side of the road on 24.04.1995. We also note that the prosecution case as per the court charge was that chilly powder was thrown on the face of the deceased and thereafter he was strangulated, assaulted with a iron block and thereafter smothered to death. The evidence of PW 1 and the contents of Exhibit P 2 would clearly rule out any such occurrence as only four injuries were found of which 3 were on Crl.A.490 & 1137 of 2012 and 322 of 2013 51 the face and one on the inguineal region. He specifically ruled out strangulation when he was examined. In view of the above, we are unable to agree with the finding of the learned sessions judge that the prosecution has successfully established that the dead body of the male found on the side of the road at Sathyamangalam was that of deceased Mohammed Haneefa and that he had met with a homicidal death at the hands of the accused. The said circumstance is found against the prosecution.
44.The next circumstance relied on by the prosecution is the evidence let in by the prosecution by examining PW3 and PW4 that they had occasion to see the 3rd accused in the taxi stand on 23.4.1995 and that he had hired the taxi of Mohammed Haneefa. PW11 and PW12 also would give evidence that on 23.4.1995 , Crl.A.490 & 1137 of 2012 and 322 of 2013 52 between 9.00 and 9.30 am Mohammed Haneefa was in the taxi stand and he had left the stand with a person who, in turn was identified by PW3 as the 3rd accused.
45.PW3 has spoken exactly in tune with Ext.P5 lodged by him on 26.4.1995. He stated in his evidence that on 23.4.1995, the 3rd accused had come to the taxi stand at 9.00 am and asked him whether he was prepared to go for a trip to Alathur. He wanted to pick up a marriage broker from Kuzhalmannam and then go to Alathur to visit the house of a girl. PW3 was already booked for another trip and therefore he asked the accused to contact his father who was standing nearby. He would say that he went to wash his face and when he returned he saw his father going with the 3rd accused in the taxi car. The witness would Crl.A.490 & 1137 of 2012 and 322 of 2013 53 specifically depose that the 3rd accused was found sitting on the front seat of the car. The prosecution relies on the evidence of PW4, to corroborate the version of PW3. He would depose that A3 had approached him and inquired about taxi drivers. He stated that he had a faint recollection of the face of A3. The prosecution also relies on the evidence of PW11, the brother of Mohammed Haneefa, who deposed before Court that while he was returning from Nenmara after a trip, he saw the deceased going in the opposite direction and according to the said witness, there were three passengers in the car. PW9, in his evidence deposed that he along with his father was running a shop at Anchangadi and on that day at 10.00 a.m, a car stopped near the shop and three persons had come out from the car. According to the said witness, the driver of the car had purchased a Crl.A.490 & 1137 of 2012 and 322 of 2013 54 cigarate from his shop and he asserted that the driver was wearing a khaki shirt. PW12 is another taxi driver operating from Olavakkode railway station who stated that PW3 and Mohammed Haneefa were at the taxi stand on 23.4.1995. The prosecution examined PW16, who deposed that some day in the year 1995 at about 10.30 in the morning, while he was cycling towards Vellappara Kunnu, a car came from the opposite side and he heard a cry from inside the car. He asserted that three or four men were found sitting inside the car. The prosecution also examined PW17 Mehabooba, the wife of deceased Mohammed Haneefa who deposed that Mohammed Haneefa had gone for work in the morning on 22.4.1995 and she stated that he wore a Khaki shirt on that day.
46.It is extremely hazardous to believe the evidence of Crl.A.490 & 1137 of 2012 and 322 of 2013 55 PW9 and PW16, who are total strangers and to expect that the Investigating Officer would zero in on them after a lapse of ten years knowing fully well that they had encountered the accused and the deceased together is too far fetched and totally unbelievable. They do not have a case that they have any acquaintance with either the accused or the deceased and as to how the Investigating Officer became aware of their chance encounter with the deceased is anybody's guess. One cannot doubt the evidence of PW3, when he asserts that he could still remember the person who had hired his father for a trip a decade back. It is also pertinent to note that none of the prosecution witnesses states that they had occasion to see all these persons together in a convincing fashion. After going through the evidence of the witnesses examined by the prosecution we have serious doubts Crl.A.490 & 1137 of 2012 and 322 of 2013 56 in our mind with regard to the evidence let in to prove that the accused were found in the company of the deceased. The evidence let in is extremely vague and cannot be taken as the basis of convicting a person for the offence under section 302 of the IPC.
47.The next circumstance relied on by the prosecution is the test identification parade conducted after the arrest of the 3rd accused in the year 2005. PW13 , the Judicial Magistrate of First Class had conducted the test identification parade and Ext.P13 is the report submitted. It is clear from the evidence let in by PW13 that though PW3 initially mistook a non suspect to be A3, later he corrected and identified A3 as the person who had hired his father's serivice on 23.4.1995. In this context, one aspect is to be taken note of. Mohammed Haneefa went missing in the year 1995 Crl.A.490 & 1137 of 2012 and 322 of 2013 57 and the 3rd accused was arrested on the basis of information on 18.2.2005. He was produced before the learned Magistrate and was remanded to judicial custody. The defence has placed on record Ext.D6 newspaper report in the Mathrubhumi daily dated 14.2.2005 to bring out that the details of the 3rd accused was revealed to the public long before the conduct of the test identification parade which was held on 21.3.2005. He was paraded before court on various occassions and as contended by the learned counsel appearing for the 3rd accused one cannot rule out the possibilty of the relatives of the accused having a look at the accused when he was produced before court. Ext. D 6 would reveal that the case had created quite a sensation in that area. In view of the above we do not think that much weight can be given to the identification of the accused No 3 by PW 3 . This Crl.A.490 & 1137 of 2012 and 322 of 2013 58 by itself may not advance the prosecution case in the absense of other credible materials.
48.It is by now trite that identification parade do not constitute substantive evidence. By the identification parade, the Investigating Officer can only satisfy himself of the bona fides of the prosecution witness. It can also be used to corroborate the testimony of the witness in Court. When the prosecution has failed to successfully establish the identity of the dead body, much emphasis cannot be laid on the identification of the 3rd accused alone.
49.The next circumstance is the alleged extra judicial confession made by the 3rd accused to PW 10. PW 10 in his evidence deposed that he was having acquaintance with the third accused. About 3 to 4 Crl.A.490 & 1137 of 2012 and 322 of 2013 59 months after the taxi driver had gone missing he had occasion to see the third accused sitting in a depressed mood at Kurisumala. He realised that something was nagging him and the 3rd accused wanted to share his secret to get over his mental disturbance . According to the witness, the accused had told him that he along with two of his friends had hired a taxi from the railway station taxi stand to see a girl and on their return, his friends had strangulated the deceased and inflicted serious injuries on his body resulting in his death. The body was disposed by the side of the Puliyampatti - Sasthamangalam Road. He further testified that the accused No. 3 had told him that the car belonging to the deceased was taken to Bangalore and the diesel engine was replaced with a petrol one and the vehicle was used for sandalwood smuggling. The vehicle was later seized. In his cross Crl.A.490 & 1137 of 2012 and 322 of 2013 60 examination, the witness stated that he had disclosed the fact that the 3rd accused had confessed to him for the first time only on 12/03/2005. He would further depose that he had filed a petition before the police in the year 2005 and based on that petition, he was summoned before the police and made to give the statement which he had signed. The question is whether the evidence of PW 10 is reliable .
50.We note that the confessional statement alleged to have been given by accused No 3 to PW 10 is exculpatory. As per the court charge, it was the third accused who had thrown chilly powder on the eyes of the deceased and thereafter he along with the 2nd accused pulled the deceased to the back seat to enable the 1st accused to brutally assault the deceased with a heavy weapon . Thereafter the 2nd and 3rd Crl.A.490 & 1137 of 2012 and 322 of 2013 61 accused are alleged to have smothered the deceased to death .
51.As held by the the Privy Council, in Pakala Narayana Swami v. The King Emperor (AIR 1939 PC 47), a statement cannot be confession unless it either admits, in terms, the offence or, at any rate, substantially all the facts, which constitute the offence. The definition, so given, in Pakala Narayana Swami (supra), also makes it clear that admission of certain facts, which suggests an inference that the maker of the admission has committed the crime charged with, will not be treated as confession. The Supreme Court has consistently followed this definition of confession in its subsequent decisions in Palvinder Kaur v. The State of Punjab (AIR 1952 SC 354), Om Prakash v. State of U. P. (AIR 1960 Crl.A.490 & 1137 of 2012 and 322 of 2013 62 SC 409), A Nagesia v. Bihar State (AIR 1966 SC 119 ) and Faddi v. State of Madhya Pradesh (AIR 1964 SC 1850).
52.In Palvinder Kaur (supra), it was held by the Apex Court that a statement, which contained self - exculpatory matter, would not amount to a 'confession' if the exculpatory matter is of some fact, which, if true, would negative the offence alleged to have been confessed. The Court has also added that a statement, to be a confession must either admit, in terms, the offence or, at any rate, substantially, all the facts, which constitute the offence, and that an admission of a gravely incriminating fact, even a conclusively incriminating fact, is not, of itself, a confession.
Crl.A.490 & 1137 of 2012 and 322 of 2013 63
53.Principles in respect of evidentiary value and reliability of extra - judicial confession have been summarized by the Apex Court in Sahadevan & Anr. v. State of Tamil Nadu (2012 (6) SCC 403) : (AIR 2012 SC 2435), which reads as under:
'i. The extra - judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution;
ii. It should be made voluntarily and should be truthful;
iii. It should inspire confidence;
iv. An extra - judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence;
v. For an extra - judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities;
vi. Such statement essentially has to be proved like any other fact and in accordance with law.'
54.After testing the evidence of PW 10 on the basis of Crl.A.490 & 1137 of 2012 and 322 of 2013 64 the principles laid down by the Apex Court , we are unable to place much reliance on the same . The alleged confessional statement was made to him by the 3rd accused in the year 1995 . The confession is purely exclupatory. He did not divulge this aspect to any person till his statement was recorded on 19.4.2005 by the learned Magistrate . He has no convincing explanation as to how the investigating officer had occassion to realize that the 3rd accused had confessed to him . His explanation that he had submitted a petition before the investigating officer based on which he was summoned does not inspire our confidence. The aforesaid circumstance, in our view, cannot be said be a strong link in the chain of circumstances.
55.The next circumstance is the evidence of recovery of Crl.A.490 & 1137 of 2012 and 322 of 2013 65 RC book of the car belonging to the deceased on the basis of the information furnished by Accused No 2 . The prosecution also attempts to prove the recovery of the licence belonging to the deceased on the basis of the diclosure statement made by the accused No 1. According to the prosecution, recovery of these vital documents belonging to the deceased from the custody of the accused No 1 and 2 would seal the issue and establish their role in the crime .
56.Ext.P 7 is the duplicate of the driving licence of the deceased Mohammed Haneefa. According to the prosecution, based on the disclosure statement given by the 1st accused, Ext.P7 was seized from his house and the same was witnessed by PW8, a Medical representative. The evidence let in as aforesaid was criticised by the defence on various grounds. It was Crl.A.490 & 1137 of 2012 and 322 of 2013 66 contended that it was beyond comprehension that the accused who murdered a person would store the driving license or the Registration certificate of the deceased for ten years to eventually provide credible evidence to the investigating agency. It was also contended that the defence was able to bring out that the duplicate license and the duplicate R.C. was "made to order" to connect the accused with the crime . The defense examined DW1 , the MVI of the Palakkad RTO office to bring out the falsity of recovery. He deposed before court that the record (history sheet) pertaining to the year 1967 ( Driving license No 309 /67 P ) was not available in the office. He produced the particulars of the registration certficate in respect of the Motor Vehicle bearing registration No. KLZ 871 before court .
57.DW1 has stated in his evidence that he is unable to Crl.A.490 & 1137 of 2012 and 322 of 2013 67 state after perusing Ext.P 7 as to when the same was last renewed. He admitted that B register is a permanant register and the same will never be destroyed. 'B' register relates to the issuance of the registration certificate. He also stated that permanent registers are maintained for licenses as well. According to the said witness the duplicate of the driving licence is issued on the basis of a registers maintained in the office. After perusing exhibit P 7, the witness stated that the person who issued exhibit P 7 is one Chandra Bose and that he is still alive.. He also stated that normally the date on which the duplicate license is issued is mentioned in the license but the same was absent in exhibit P 7. He denied the defence suggestion that the registers were not purposefully produced to aid the prosecution. We have perused the license and we find that none of the Crl.A.490 & 1137 of 2012 and 322 of 2013 68 signatures are endorsed with the dates by the issuing officer . The date of birth of the licensee is mentioned as 24/67 and though it was explained by the witness in re examination that it meant that the licensee was 24 years old in the year 1967 , the same does not appear to be convincing. PW 8 , the witness who was examined to prove the recovery has given evidence that he had stood outside the house of the 1st accused and the accused and the police men had come from inside of the house . He emphatically stated that he had not seen the accused taking the license from inside of his house . In more or less the same manner , the registration certificate of the Car was recovered on the basis of the disclosure statement given by the 2nd accused.Exhibit P 6 is the duplicate copy of the RC book which was recovered. PW 5 is the attestor to the recovery mahazzer. There are several Crl.A.490 & 1137 of 2012 and 322 of 2013 69 suspicious circumstances surrounding the recovery of the licence and the RC Book and we find merit after evaluating the rival submissions that it is unsafe to rely upon the same to arrive at the finding of guiilt.
58.After having undertaken an exhaustive appraisal of the prosecution evidence, we are of the view that the discrepancies pointed out by the accused are extremely sound and convincing. The evidence let in by the prosecution is thoroughly incompatible with the guilt of the accused. We are unable to conclusively hold that the prosecution was able to establish the fact that the body found at Chinnavayi puthur was that of Mohammed Haneefa. In that view of the matter the pointing of the place where the body of Mohammed Haneefa was dumped by the 3rd accused has no consequence .The extra judicial confession alleged to Crl.A.490 & 1137 of 2012 and 322 of 2013 70 have been made to PW 10 by the 3rd accused is tinged with suspicious elements. Being clearly exculpatory , it cannot be used against the co-accused as well . The recovery of the RC Book and the License on the basis of the alleged disclosure statements fails to satisfy our conscience . The discrepancies in the license and the RC book points to some nefarious practice which is best left unsaid. The witnesses cited by the prosecution to link the accused with the disappearance of the deceased Mohammed Haneefa does not inspire our confidence.
59.On a cumulative scrutiny of the evidence on record, we are thus constrained to hold that in the facts and circumstances of the case, the prosecution has failed to prove the charge under Sections 364 , 120 B , 302 , 302 r/w 120 B , 392 , 392 r/w 120 B and section 201 Crl.A.490 & 1137 of 2012 and 322 of 2013 71 r/w Section 34 of the IPC against the appellants. After re-appreciation of the evidence we are of the view that the court below has failed to examine and evaluate the evidence on record in the right legal and factual perspective and has thus have grossly erred in returning a finding of guilt against them on the above charges.
60.In Rajiv Singh V State of Bihar , ( 2015 (13) SCALE 901 ) Apex Court has reiterated the time honored principles in the following manner .
[60]. It is well entrenched principle of criminal jurisprudence that a charge can be said to be proved only when there is certain and explicit evidence to warrant legal conviction and that no person can be held guilty on pure moral conviction. Howsoever grave the alleged offence may be, otherwise stirring the conscience of any court, suspicion alone cannot take the place of legal proof. The well established cannon of criminal justice is "fouler the crime higher the proof". In unmistakable terms, it is the Crl.A.490 & 1137 of 2012 and 322 of 2013 72 mandate of law that the prosecution in order to succeed in a criminal trial, has to prove the charge(s) beyond all reasonable doubt. [61]. The above enunciations resonated umpteen times to be reiterated in Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan MANU/SC/0468/2013MANU/SC/0468/2013 :
(2013) 5 SCC 722 as succinctly summarized in paragraph 21 as hereunder:
[21]. "Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that "may be" proved and "will be proved". In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between "may be" and "must be" is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between "may be" true and "must be" true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between "may be" true and "must be" true, the court must maintain the vital distance Crl.A.490 & 1137 of 2012 and 322 of 2013 73 between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."
[Emphasis laid by the Court] [62]. In supplementation, it was held in affirmation of the view taken in Kali Ram v. State of H.P. : (1973) 2 SCC 808 that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.
[63]. In terms of this judgment, suspicion, howsoever grave cannot take the place of proof and the prosecution case to succeed has to be in the category of "must be" and not "may be". a distance to be covered by way of clear, cogent and unimpeachable evidence to rule out Crl.A.490 & 1137 of 2012 and 322 of 2013 74 any possibility of wrongful conviction of the accused and resultant mis-carriage of justice. For this, the Court has to essentially undertake an exhaustive and analytical appraisal of the evidence on record and register findings as warranted by the same. The above proposition is so well-established that it does not call for multiple citations to further consolidate the same.
61.We are of the view that the evidence in the instant case is not trustworthy and consistent, and cannot be said to unmistakably point to the guilt of the accused. We are not satisfied that the circumstances established by the prosecution , cumulatively taken together, forms a complete chain of events, pointing towards the guilt of the accused in the commission of the crime.
62.We therefore, hold that the prosecution has not succeeded in proving its case against the accused Crl.A.490 & 1137 of 2012 and 322 of 2013 75 beyond all reasonable doubt. We have no other option but to hold that the appellants are entitled to the benefit of doubt. The judgment of the learned Sessions Judge is clearly not sustainable in law and it is liable to be reversed.
63.The impugned judgment is, therefore, set aside and the appeals are allowed. The appellants are directed to be set at liberty unless wanted in connection with any other case.
Sd/-
P.BHAVADASAN.
Judge Sd/-
RAJA VIJAYARAGHAVAN.V. Judge Mrcs //True Copy// P.S.ToJudge