Kerala High Court
S.H.Imam Hussain vs State Of Kerala on 30 May, 2019
Equivalent citations: AIRONLINE 2019 KER 178, 2019 CRI LJ 4459
Bench: A.M.Shaffique, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941
CRL.A.No. 113 of 2015
AGAINST THE ORDER/JUDGMENT IN CP 147/2012 of JUDICIAL
MAGISTRATE OF FIRST CLASS ,KASARAGOD
AGAINST THE JUDGMENT IN SC 701/2012 of ADDITIONAL SESSIONS
COURT - II, KASARAGOD DATED 19-11-2013
CRIME NO. 103/1993 OF Badiadukka Police Station , Kasargod
APPELLANT/ACCUSED:
S.H.IMAM HUSSAIN
AGED 57 YEARS
S/O.SAYED HUSSAIN, IKKERI ROAD, JANNATHUGALLI,
SAGAR, SHIMAGO DISTRICT, KARNATAKA STATE, WARD
NO.III/83, NEAR BILALA MASJID, BILAL NAGAR
MUNCIPAL TOWN NILAMANGALA, BANGALORE
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.VIPIN NARAYAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM
ADV. S. AMBIKA DEVI SPL.PP. FOR OFFENCES AGAINST
WOMEN AND CHILDREN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12.04.2019, THE COURT ON 30/5/2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.113/15
-:2:-
JUDGMENT
Shaffique, J.
This appeal is preferred by the appellant challenging the judgment of conviction and order of sentence passed by the 2 nd Additional Sessions Judge II, Kasaragod in S.C. No. 701 of 2012 dated 19/11/2013 as per C.P. No.147 of 2012 arising out of Crime No.161/CR/KNR/2008 (Crime No. 103/1993 of Badiadukka Police Station by which he was found guilty for offence under Sections 449, 302,461, 392, 397 and 201 of the Indian Penal Code, 1860 (for short 'IPC') in which a couple were murdered and was sentenced to undergo imprisonment for life for each of the two offences of murder under Section 302 of I.P.C. and also to pay a fine of `50,000/- (Rupees Fifty Thousand only) with a default stipulation of rigorous imprisonment for one year each; also sentenced to undergo rigorous imprisonment for seven years for offence under Section 392 read with Section 397 of IPC; further to suffer rigorous imprisonment for three years and to pay a fine of `25,000/- (Rupees Twenty Five Thousand only) with a default stipulation of rigorous imprisonment for six months under Section Crl.Appeal No.113/15 -:3:- 449 of IPC; again to undergo rigorous imprisonment for one year for offence under Section 461 of I.P.C. and also to undergo rigorous imprisonment for three years and to pay a fine of `25,000/- (Rupees Twenty Five Thousand only) with default sentence of rigorous imprisonment for six months for offence under Section 201 of I.P.C. The appellant was not found guilty for offence under Section 354 and also for offence under Section 511 of 376 of I.P.C.
2. Prosecution case is that the accused who is an astrologer and performer of black magic belonged to Shimoga district of Karnataka and he used to visit the deceased persons Sreekrishna Bhat (herein after called 'Mr.Bhat') and his wife Sreemathi Bhat (herein after called 'Mrs.Bhat') at their house bearing door No.XVI/64 in Enmakaje Grama Panchayath in Kasaragod district where the deceased persons were residing along with three school going children. By making the deceased persons believe that he would unearth treasure from their landed property, the accused/appellant used to perform poojas also. With the intention to kill the deceased persons and to rob the gold ornaments and cash kept in the drawer of the table, the appellant Crl.Appeal No.113/15 -:4:- was waiting for an occasion with preparation and on 09/10/1993 at 09.15 P.M., he as usual conducted poojas and made the deceased persons drink water mixed with powdered sleeping pills stating that it is 'prasadam' (remnants of offerings to God or deity given to devotees). The appellant took the deceased Sreekrishna Bhat towards the nearby pit which was already dug for planting coconut sapling and asked him to enter into the pit and pray for getting treasure. While Sreekrishna Bhat was praying by bowing down from the pit, the appellant about 11.30 P.M., stabbed on his head and on the backside of the head and body with a chopper causing as many as nine deep injuries and thereafter he buried the deceased Sreekrishna Bhat in the same pit in such a manner that one of his legs and hands protruded out. Thereafter, he committed criminal trespass by entering into the house of the deceased person at about 12.30 at night and tore the blouse worn by the deceased Sreemathi Bhat off who was lying unconscious and bit her breast causing injuries and thereby outraging her modesty and made an attempt to commit rape on her. Thereafter, he, by using a knife which he had subsequently abandoned into the pond, stabbed Sreemathi Bhat on her neck Crl.Appeal No.113/15 -:5:- causing deep injury. Thereafter, he took away 10 sovereigns of gold ornaments and cash kept in the drawer of the table inside the house. Initially the case was investigated by the local police but subsequently, CBCID had taken over investigation. Thus, the appellant was charge-sheeted for the above-said offenses.
3. To prove the case, prosecution examined PW1 to PW39 as witnesses, marked documents Exts.P1 to P63 and identified MO1 to MO19 as material objects. After adducing prosecution evidence, the appellant was questioned under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). He denied all incriminating circumstances levelled against him. He filed written statement in which he stated that he had never absconded as alleged by the prosecution. In 1992, a case had been initiated against him and after disposal of the said case, he had shifted to his native place at Shimoga since there was communal riot at Mangalore. Thereafter, he has been residing at Shimoga and it was from his house at Shimoga, he was arrested. He had never gone to Devalokam as alleged and was forcibly taken by police to the said place after he was arrested. Before he was produced in Court, many photographs had been taken and it Crl.Appeal No.113/15 -:6:- was the said photographs which had been shown to the witnesses before conducting the Test Identification Parade. He had not resided at Mangalore lodge after December 1992. The shoe produced before the Court is not the one used by him. The visiting card alleged to have been seized from the house of the deceased also has no connection with him. After obtaining police custody, the police officials had forcefully taken his thumb impression in the document without his permission.
4. Evidence adduced by the prosecution are as follows:
PW1 lodged Ext.P1 First Information Statement and he is an attestor to Ext.P2 scene mahazar also. Deceased is the son of PW1's father's elder brother. On getting the information, he went to the house and had seen Mr. and Mrs.Bhat dead. Mrs.Bhat was found dead in the room in a pool of blood and on search, Mr.Bhat was found dead in a pit in the compound of the house. During the time of investigation, as per Ext.P4 mahazar, police had seized Ext.P3 visiting card containing the name and other particulars of the accused/appellant from the drawer of the table found in the house. He witnessed police seizing MO2 umbrella and MO3 bottle.
5. PW2 is the son of the elder brother of the deceased Crl.Appeal No.113/15 -:7:- Sreekrishna Bhat. According to him, four months prior to the incident, while he had been there on the side of the road at Perla near to the cashew plantation owned by him and was talking with a relative at 03.00 p.m., he found an Omni van and from it, the appellant and Sreekrishna Bhat got down and walked along the road. It is his version that he had identified the appellant during Test Identification Parade.
6. PW3 Muraleekrishna is the son of the deceased couple. He was studying in 7th standard at the time of incident which had taken place on 09/101993. He deposed that, on that day, at 05.00 p.m., his father Sreekrishna Bhat had come to the house with articles meant for performing poojas. At about 07.00 p.m., his mother Sreemathi Bhat served food to him and to his two younger brothers. After having food, his mother asked all of the children to sleep in the other room. At that time, his father went out of the house with a torch. On the next day morning, his younger brother told him that their mother was not seen. On search, the three children found their mother dead lying in the other room in a pool of blood. Their father was also not found there. So, they went to Narayana Bhat who is their uncle and Crl.Appeal No.113/15 -:8:- informed the incident. On getting information about the incident, PW1 Mahalinga Bhat also reached the spot. On further search, the dead body of their father was found in a pit protruding one of his hands and legs out. It is his further version that the accused/appellant used to come to their house for performing poojas. It is his version that he had identified the appellant during TIP.
7. PW4 Mohammed was a tourist car driver during 1993 at Vitla town. He deposed that the appellant had travelled in his car at 08.00 p.m. and got down at Perla. When the vehicle reached Adyanaduka, the appellant got down from the vehicle and went to nearby shop and came back with a bottle of liquor. On hearing some sound from the bag found with the appellant, PW4 asked about the same and the appellant told PW4 that it was a cock for preparing curry. When the vehicle reached Perla, the appellant got down and walked along the road towards the western side. He further stated that at the time of the TIP, he identified the accused.
8. PW5 Umesh was working in the wine shop owned by his father during 1993. It is his deposition that on the date of Crl.Appeal No.113/15 -:9:- incident, at about 08.00-08.30 p.m., the accused/appellant had come to his shop for purchasing brandy.
9. PW6 Suresh Khanna is the son of the elder brother of Mr.Bhat. He stated that, on one Sunday, which is 15 days prior to the date of incident, he had seen the appellant getting down from an autorickshaw at the place that leads to the house of Mr.Bhat. He noticed him because he was a stranger to the place. Later, after the incident, he had seen his photograph in news paper and recognized that it was the same person who had alighted from the autorickshaw on the above-said date. It is his version that after 1½ years of the incident, he had seen the accused at the bus stop at Bommana Hally in Bangalore. When he had told his friend about the accused/appellant, the appellant got into the bus. He also got into the same bus. The appellant alighted at Majestic and PW6 also alighted there. The appellant went to the mosque near to Olympic Theatre. Though he waited outside the mosque, the appellant did not come out of the mosque. According to him, at the time of TIP, he had identified the accused.
10. PW7 G.R. Shetty is the owner of the Vasantha Mahal Crl.Appeal No.113/15 -:10:- lodge at Mangalore. According to him, he knew the appellant and his father for about 25 to 30 years. It is his version that the father of the appellant and his children had resided in his lodge and after the death of his father, the appellant (Imam Hussain) also resided in the lodge in room no.105. From newspaper, he came to know about the incident. The police also came to the lodge along with accused persons.
11. PW8 was a part time Accountant in Vasantha Mahal lodge owned by PW7. He also deposed that the appellant was staying in room no.105 of the said lodge.
12. PW9 is the room boy of Vasantha Mahal lodge during 2012. According to him, on 01/05/2012, the police had come to the lodge along with the accused and he is an attestor to Ext.P5 observation mahazar.
13. PW10 is a salesman of Natesha Traders, Mangalore. It is his deposition that police had come to his shop along with the appellant on 01/05/2012 to ascertain whether the appellant had purchased knife from his shop. According to him, he did not remember the same.
14. PW11 is the worker who had made the pit as told by Crl.Appeal No.113/15 -:11:- Mr.Bhat for planting coconut sapling. He had planted a coconut sapling aged 3 years in the pit as required by Mr.Bhat. It took place 10 to 20 days prior to the incident. He further stated that he was also part of the team which helped in removing dead body of Mr.Bhat from the pit.
15. PW12 is the photographer through whom Ext.P6 series photograph and negative of the dead body is marked. He proved Ext.P4 CD which was a visual taken by him at the time of searching the knife in the pond. PW13 is an attestor to Ext.P7 inquest report. PW14 is the sister of Mr.Bhat. It is her version that Mrs.Bhat was having 10 sovereigns of gold ornaments apart from 20 sovereigns of gold ornaments given by her father.
16. PW15 is an attestor to Ext.P8 inquest report. He had seen the police seizing MO6 blouse, MO7 saree and MO8 skirt from the body of the deceased Mrs.Bhat. He was a member of the action council formed in connection with the incident. He had seen police seizing MO1 knife.
17. PW16 is a police constable of Mangalore North Police Station. Crime No.376 of 1992 under Section 420 of I.P.C. had been registered against three accused persons on 01/02/1992 Crl.Appeal No.113/15 -:12:- and one among them was the appellant herein. The appellant was absconding in the said case. PW17 is an attestor to Ext.P9 seizure mahazar for the seizure of MO9 shoe. PW18 proved Ext.P10 ownership certificate as per which the house bearing door No.EP-VII/191 is registered in the name of PW2 and others. PW19 is the Village Officer in charge of Enmakaje Village Office through whom Ext.P11 sketch of the property is marked. PW20 is the Villageman of Enmakaje Village who is an attestor to Ext.P12 observation mahazar. PW21 is the photographer of finger print bureau, Kasaragod who along with finger print expert had gone to the place and had taken the photograph of chance finger print found on MO3 bottle examined by PW28. Ext.P13 is the photograph. On 30/04/2012, the chance print was compared with finger print of the appellant and then also he had taken photograph of the same. Ext.P14 is the photograph.
18. PW22 is the Doctor who had given his opinion on two post-mortem examinations done by Dr.T.A. Muhammed, Civil Surgeon (PW29). PW23 is the then Assistant Chemical Examiner, Regional Chemical Examination Laboratory, Kozhikode, who on receipt of pubic hair and vaginal smear, examined the same and Crl.Appeal No.113/15 -:13:- issued Ext.P15 certificate. According to her, smear and spermatozoa were not detected in the sample. She had also issued Ext.P16 certificate. She stated that human blood was detected on item nos.3 and 5 to 7. Blood was detected in item Nos.1 and 4 but its origin could not be detected due to want of sufficient quantity. No blood was detected in item no. 2.
19. PW24 is the then Test Inspector, Finger Print Bureau, Kasaragod. He compared chance finger print developed from the scene of occurrence and found identical with daily arrest slip received from the Detecting Inspector CBCID, Kozhikode. Ext.P17 is the report filed by him. Exts.P13 and P14 are the photographs. PW25 was the then Judicial Magistrate who conducted TIP and Ext.P18 is the proceedings of the TIP. He deposed that four witnesses had identified the appellant. PW26 Dr. Sherly Vasu is the then Professor and Head of Forensic Medicine and Police Surgeon, MCH, Kozhikode. Ext.P19 is the opinion rendered by her on two post-mortem certificates. PW27 was the Village Officer who prepared Ext.P20 scene plan. He also issued Exts.P21 and P22 possession certificates. PW28 was the Finger Print Expert, Finger Print Bureau, Kasaragod who inspected the scene of crime Crl.Appeal No.113/15 -:14:- and developed the finger print impression obtained from MO3 bottle found at the scene of crime. He compared the said finger print with that of the finger prints of the deceased persons as well as their children. It is his version that none of the finger prints developed are identical with that of the one developed from the bottle. PW29 conducted the autopsy of both deceased persons and Exts.P23 and P24 are the reports respectively of Mr.Bhat and Mrs.Bhat. PW30 was the S.I. of Police, Badiadukka who recorded Ext.P1 FIS of PW1 and registered Ext.P1(a) FIR. Ext.P8 inquest report of Mrs.Bhat was prepared by him. He seized MO1 knife and MO10 polythene bag as per Ext.P8. A cock found at the place was also seized and it was released on kaychit as per order of the Court. MO6 blouse, MO7 saree and MO8 skirt are the clothes seized from the dead body of Mrs.Bhat and they were produced in Court as per Ext.P25 property list. MO11 to MO13 series were the gold ornaments worn by Mrs.Bhat. PW31 who was the Circle Inspector of Polce, Kumbla conducted inquest of Mr.Bhat and Ext.P7 is the report. He prepared Ext.P2 scene mahazar and seized Ext.P3 visiting card as per Ext.P4 mahazar from the drawer of the table. Ext.P26 is the property list. As per Ext.P27 Form 15, Crl.Appeal No.113/15 -:15:- it was produced in Court. He conducted the investigation till 22/10/1993 and handed over the case to PW32 as per order. PW32 was the Circle Inspector of Police, Special Mobile Squad, Kasaragod on 22/10/1993. MO9 shoe is recovered by him as per Ext.P9 mahazar which was produced in Court as per Ext.P28 property list. Ext.P30 is the crime card. PW33 was the Dy.S.P, Kasaragod on 23/09/2004. He questioned Laxmi Amma, who is the mother of Mrs.Bhat and recorded her statement. PW34 was the Dy.S.P, Kasaragod on 09/06/1999. He conducted investigation and questioned PW3 and CW3 and recorded their statements. Ext.P31 is the report filed by him adding the name of the appellant. PW35 was the Dy.S.P, Kasaragod on 07/01/2003. He questioned PW16, CW34 and CW65 and recorded their statements. PW36 is the Dy.S.P., Crime Branch who conducted investigation from 29/08/2008 to 24/06/2009. Ext.P32 is the observation mahazar prepared by him.
20. PW37 was the photographer who produced Ext.P33 series photographs and CD of finger print. PW38 was the C.I. of Police, Ahur during November 1997. He obtained copy of the document in Crime No.376 of 1992 of Mangalore North Police Crl.Appeal No.113/15 -:16:- Station which is marked as Ext.P34. PW39 is the Detecting Inspector, CBCID, Kozhikode. He started investigation on 01/12/2011. Ext.P35 is the report filed by detailing taking over of investigation by him. He arrested the appellant on 21/04/2012 at Nilamangala. Ext.P36 is the arrest memo and Ext.P37 is the inspection memo. Ext.P38 is the search list prepared by him on search of the house of the appellant. Nothing is recovered from there. Ext.P41 is the remand report. Ext.P39 is the photocopy of the rent kaychit produced by the wife of the appellant and the same was produced in Court as per Ext.P40 Form 15. Ext.P42 is the report indicating permanent address of the appellant. Ext.P43 is the open dated warrant attached with Ext.P41. Ext.P44 is the alleged portion of confession of the appellant, but no articles were recovered. Ext.P50 is the property list as per which he produced MO3 bottle which had been kept in the Finger Print Bureau and produced to him by PW24. Ext.P51 is the report filed for adding Section 354 of I.P.C. Ext.P63 is the FSL report. He completed the investigation and filed the charge-sheet.
21. The first question to be answered is whether the death of Mr. and Mrs. Bhat was a homicide as alleged. Exts.P7 and P8 Crl.Appeal No.113/15 -:17:- are the inquest reports of Mr.Bhat and Mrs.Bhat respectively. PW29 is the Doctor who conducted the autopsy of the victims. Ext.P23 is the post-mortem certificate of Sreekrishna Bhat and Ext.P24 is the post-mortem certificate of Sreemathi Bhat. PW29 deposed that he had noted the following injuries on Mr.Bhat at the time of autopsy:-
"1. Incised wound on the back of right side of head 2 cm below right posterior parietal eminence 12 x 3 cm cutting into the underlying skull bone.
2. Incised wound on the back of right side of head just below injury No.1 10X3 cm cutting into the underlying bone. Injury No.1 is horizontally placed and injury NO.2 obliquely placed.
3. Incised wound on the back of right side of head behind the right ear 10x2x1 cm obliquely placed.
4. Incised wound on the upper part of neck at the level of posterior hair line extending from right angle of mandible to the left side 24x6x2 cm. It is horizontally placed.
5. Incised wound on the right side of back of neck obliquely placed 6x3x2 cm below injury No.4
6. Incised wound on the right side of back of neck below injury No.5 obliquely placed 5x2x10 cm.
7. Incised wound on the right side of back of neck obliquely placed below injury No.6 10x2x2 cm.
8. Incised wound on the upper part of back at the level of upper border of scapula 16x4x3 cm.
9. Incised wound on the back of right upper arm 2x1x1 cm."Crl.Appeal No.113/15 -:18:-
Cause of death of Mr.Bhat is stated to be injury caused to brain. Prosecution also relied on the opinion of PW22 Dr.S.Gopalakrishna Pillai who was the then Professor of Forensic Medicine, Pariyaram Medical College. According to him, the injury to the brain by a heavy cutting weapon with a long blade is the cause of death of Mr.Bhat. PW26 Dr.Sherly Vasu also gave a report as requested by the Investigating Officer on this aspect. She stated that the description of nine sharp cuts noted in Ext.P23 are tallying with cuts by a heavy cutting weapon like a chopper having sharp cutting edge. Out of 9 sharp cuts, injury nos. 1 and 2 involved skull and brain at their depths. All the injuries are on back right aspect. According to her, since the person was in a pit with a depth of 125 c.m. while sustaining the above-mentioned injuries, it could be possible that the appellant was in a sitting position beside the pit, and the pit was narrow enough that it would not allow the person to fall down by flexure of knees and hip. The said injuries could be possible if the victim was in prone/prostrating position in front of the accused who is seated on the floor. Medical evidence shows that injury nos.1 and 2 in Ext.P23 are independently sufficient in the ordinary course of Crl.Appeal No.113/15 -:19:- nature to cause death and injury nos.3 to 8 also would have contributed to death.
22. PW29 further deposed that he had noted the following injuries on Mrs.Bhat at the time of autopsy:
"1. Incised wound on the front of neck horizontally placed 2 cm below thyroid cartilage. 5cmx0.2 cm on probing the middle portion of the wound entering into the trachea.
2. Incised wound on the front of neck horizontally placed 2x0.2x0.2 cm, 1 cm below injury No.1
3. Incised wound on the front of neck horizontally placed 2x0.2x0.2 cm, 2 cm above injury No.1."
Based on the same, PW29 opined that the cause of death of Mrs.Bhat is asphyxia due to injury to trachea and aspiration of blood into the air passage. According PW22, injury no.1 is sufficient in the ordinary course of nature to cause death of the victim. PW26 also opined that the effect of application tightening of ligature or aspiration of blood into air passage from cut throat injury or combination of both could be the cause of death. From the above evidence, it is clear that Mr.Bhat and Mrs.Bhat met with homicidal deaths.
23. The next crucial question is whether prosecution proved beyond reasonable doubt that it was the appellant who Crl.Appeal No.113/15 -:20:- caused the death of these two people. To decide the same, it is necessary to analyze the already detailed evidence carefully. Admittedly, the case rests on circumstantial evidence. There is no eyewitness to the incident. Prosecution argument before lower Court and before us was that the case is proved beyond reasonable doubt. Prior acquaintance of the appellant with the deceased couple is proved by the prosecution. Ext.P3 visiting card fortifies the same. PW3, the son of the deceased couple, deposed that he had seen the appellant coming to his house for performing poojas prior to the incident. Motive for the commission of the crime is also proved as robbery of money and gold ornaments belonging to Mrs.Bhat. Finger print of the appellant is available from MO3 bottle belonging to the appellant. Witnesses identified the appellant during TIP and in Court. The appellant was absconding for many years. Medical evidence clearly shows that the death of the couple is a homicide. On the other hand, the appellant argued that the case is a false one and the investigating agencies destroyed evidence to save the real culprit and falsely implicated the appellant herein. The appellant had no connection with the family of the deceased. He never Crl.Appeal No.113/15 -:21:- visited them. Ext.P3 visiting card do not belong to him. The photo of the appellant was published in dailies and the TIP cannot be taken into account. Seizure of MO1 knife and MO3 bottle is doubtful and concocted. MO3 is seized three days after the incident and it was produced before Court with delay. There are other enemies to Mr.Bhat including close relatives in connection with property disputes. Prosecution did not prove the case beyond reasonable doubt and hence an acquittal is pleaded for.
24. Reliance was placed on the verdict of the Apex Court in Sonvir @ Somvir v. State (NCT of Delhi) [(2018) 8 SCC 24] where in almost similar circumstances, the Apex Court extended benefit of doubt to the appellant and acquitted them.
25. After considering all the arguments so advanced and perusing records and after analyzing the whole evidence, the Court below came to the conclusion that certain circumstances stand proved against the appellant. Based on the same, Court below came to a finding that the circumstances form a chain so complete that it unerringly points to the guilt of the appellant and convicted him for various offences including twin murder as detailed already. The following are the circumstances:- Crl.Appeal No.113/15 -:22:-
"1. Presence of the accused in the house of the deceased persons.
2. Evidence of PW3, the son of the deceased persons that the accused had come to the house for performing poojas and the evidence on recovery of pooja articles.
3. Evidence of PW2 that 4 months prior to the incident he had seen the accused and deceased Sreekrishna Bhat alighting from an omni van and proceeding towards the house of the deceased Bhat. His further evidence that on one other occasion also he had seen the accused going towards the house of Sreekrishna Bhat.
4. Evidence of PW6 that he had, 15 days prior to the incident, seen the accused getting down from an autorickshaw on the way that leads to the house of the deceased Sreekrishna Bhat.
5. Evidence of PW4 that on the date of the incident the accused had travelled in his tourist car and alighted on the way that leads to the house of deceased Sreekrishna Bhat.
6. Evidence of PW4 that on the way the accused had purchased liqour from a wine shop.
7. Evidence of PW5 that the accused had purchased liquor from his shop on the date of incident.
8. Evidence of PW4 that a cock was seen in the bag in the possession of the accused.
9. Evidence brought out on record that a cock with its legs tied was seized from the scene of occurrence.
10. Homicidal death.
11. Absence of defence wound indicating that some sort of sedative substance had been administered on the deceased persons and further indicating the preparation for committing murder was made.
12. Missing of gold ornaments and cash amount from the Crl.Appeal No.113/15 -:23:- house.
13. The test identification parade in which the accused was identified by PWs 2, 3, 4 and 6.
14. Evidence of PWs 7 and 8 connecting with Ext.P3 visiting card of the accused.
15. Abscondence of the accused from the date of the incident and the fact that he was arrested after 19 years.
16. Failure of the accused in explaining the incriminating circumstances put to him at the time of examination under Section 313 Cr.P.C."
26. Admittedly, this is a case in which the appellant was arrested after 19 years of the occurrence. Each case has to be decided on its own facts. The maximum number of incriminating circumstances which could be elicited from the available evidence is already brought out by the learned Sessions Judge. When they are put together, in our considered view, they do not form a chain leading to the inference of guilt of the appellant. It can be seen that no recovery was effected based on the confession of the appellant. Nothing is brought out in evidence to connect the appellant with the ornaments allegedly belonging to Mrs.Bhat. Seizure of MO3 bottle, utmost, only shows that the appellant's finger print was in it. Even assuming that the finger print of appellant had been traced from the house of the Crl.Appeal No.113/15 -:24:- deceased, prosecution itself admits that the appellant had visited the deceased earlier also. They do not have a case that the objects from where finger prints were traced were wiped or cleaned prior to the incident so that it could at least be assumed that the finger print availed was of a recent one. In the absence of other evidence, it would be unsafe to convict the appellant based on availability of the finger print alone in the circumstances of this case. Argument of the prosecution is that based on the evidence of PW4, it could safely be concluded that the cock found with the appellant while the appellant was travelling in his taxi is the same cock found near the house after the incident while preparing inquest etc is only liable to be discarded. There is nothing to show that the appellant was found in the house of the deceased in the intervening night between 09/10/1993 and 10/10/1993. The children who were sleeping in the same house did not even have a case that they heard a sound during that night. Evidence of PW4 at best would only prove that the accused was in the locality. It does not mean that the accused had gone to the house of deceased. Prosecution miserably failed to prove the case against the appellant. We do Crl.Appeal No.113/15 -:25:- not think that any of the circumstances mentioned by the Court below are incriminating in order to implicate the accused. That he was identified as a person who had come to the locality alone can never be a reason to find him guilty for an offence u/s 302 of I.P.C. He should be extended benefit of doubt and we do so.
In the result, the appeal is allowed. Conviction and sentence passed by the trial Court on the appellant are hereby set aside. The appellant shall be released forthwith, if his presence is not required in connection with any other case.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
ASHOK MENON
Rp //True Copy// JUDGE
PS to Judge