State Of Kerala Represented By ... vs Jayesh @ Jabar @ Babu on 17 March, 2020

[Cites 49, Cited by 1]

Kerala High Court

State Of Kerala Represented By ... vs Jayesh @ Jabar @ Babu on 17 March, 2020

Introduction It is often said: "A Judge does not preside over a criminal trial merely to see that no innocent man is punished, he also presides to see that a guilty man does not escape and one is as important as the other". We are called upon to apply this proposition to the facts in this case.

2. In this appeal by the State against acquittal of the accused/respondent, various factual and legal questions are raised to dislodge the trial court's findings. Allegations against the accused/respondent, in nut shell, are that the accused trespassed into a house, where an old lady was staying alone, in order to commit an offence of robbery with an attempt to cause her death. Thereafter he cold-bloodedly hacked the hapless old lady with a sharp weapon to death. After committing the crime, he caused the disappearance of Crl.Appeal No.48 of 2015 & 4 Crl.M.C.No.6231 of 2014 evidence relating to the crime.

3. Court below on an appreciation of evidence found that the investigation conducted was totally unfair to the accused and the investigating officers cooked up false evidence to procure his conviction. Trial court also found that the prosecution witnesses are untrustworthy. On the above reasonings, the court below not only acquitted the accused, but initiated legal action against the two investigating officers. Penalty was imposed on them for the perceived improper investigation.

4. We may refer to Stirland v. Director of Public Prosecutions (1944 AC (PC) 315) to appreciate the legal questions arising in this case. It was a case where the appellant was on a trial for forgery. He put his character in issue and asserted in examination in chief that he had never been "charged" with any offence. In cross examination, questions were asked suggesting that on a previous occasion he had been questioned about a suggested forgery by his former employer. He was convicted in the trial and he appealed to the Court of Criminal Appeal against the conviction and sentence. When the appeal was dismissed, he approached the Privy Council. In that matter, we find the famous quotation by Viscount Simon L.C., thus:

"A question whether the accused, who has put his character in issue, was not suspected of a previous crime of which he was never charged in court, or, if charged, was acquitted, is an example of a case Crl.Appeal No.48 of 2015 & 5 Crl.M.C.No.6231 of 2014 where the judge should intervene. It is true that a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent, but when Maxwell's case (1935) A.C.309) decided that where the prosecution had enough evidence to indict a man for a crime, but not enough to convict, no questions can be asked about that incident in a later trial at which he puts his character in issue, how can mere suspicion alleged to have been entertained by his previous employer on an earlier occasion be a legitimate topic for cross-examination to credit?"

Finally, the Privy Council found that improper questions were attempted at the time of trial because of failure of the counsel to object such questions which led to the conviction of the appellant. Therefore, the Privy Council, observing that there was substantial miscarriage of justice, allowed the appeal. Based on the observations therein, a line of thinking developed that a wrong acquittal of an accused is as bad as a wrong conviction. The principle has been restated by courts in different language in very many cases. We are called upon to pronounce not only on the correctness of acquittal, but also on the power of the trial court to pass strictures against the police officers, who investigated the crime, without affording them an opportunity to explain and also the court's authority to impose exemplary penalty on them.

Facts:

Crl.Appeal No.48 of 2015

& 6 Crl.M.C.No.6231 of 2014

5. Sundari Amma, the murderee, was residing in an old tiled building having four residential units, sharing common walls and a roof. She earned her livelihood by making and selling idlies (rice cakes) to the nearby hotels. She was about 67 years at the time of her murderous death. Prosecution alleged that on 21.07.2012 at about 1.30 a.m. in the night, accused/respondent, by placing an improvised ladder, climbed on to the tiled roof and after removing a couple of tiles, he entered the house by slipping through a rope tied on the rafters. According to the prosecution, his intention was to steal her money kept inside a pillow. Unusual sound could have woken up Sundari Amma. Accused, on realising that she had identified him, inflicted as many as 29 injuries on various parts of her body by using a chopper. Thereafter, he ran away when people started converging to the crime scene. Although the injured was removed to a hospital, she succumbed to the injuries at about 4.15 hours in the morning. Prosecution would further contend that the accused, with an intention to destroy evidence, had thrown the chopper into a nearby temple pond.

6. Immediately after the incident, PW1 went to Panniyankara Police Station and lodged Ext.P1 first information statement (FIS). PW34 recorded the statement given by PW1 and registered Ext.P31 first information report (FIR). PW35, Circle Inspector of Police, Kasba, took over investigation at 8.00 a.m. on 21.07.2012. At 9.30 a.m. on the same Crl.Appeal No.48 of 2015 & 7 Crl.M.C.No.6231 of 2014 day, he went to mortuary attached to the Medical College Hospital, Kozhikode to conduct inquest and thereafter he prepared Ext.P2 report. At the time of preparing the inquest report, he removed the apparels worn by the deceased which are marked as MO16 series (four in number). Body of the deceased was sent for forensic examination. Gold ornaments taken out of the dead body was handed over to the victim's daughter after executing Ext.P33 kychit. At 3.00 p.m., PW35 went to the place of occurrence and identified the crime scene. Ext.P4 is the scene mahazar. As per Ext.P4, he recovered `6,550/- kept beneath the pillow used by the deceased. He also opened an almirah and found a purse with inscription 'Aiswarya Jewellers'. In the purse, a gold chain weighing 7.200 gm and `8,500/- were found. Those articles were handed over to the deceased's daughter. He seized an improvised ladder said to have been used by the assailant to climb up and a pair of old chappel. MO2 series are the plastic chappels and MO3 is the improvised ladder. A police dog was brought to the crime scene to track path of the assailant. Ext.P8 is the observation mahazar prepared in this regard. After postmortem, the body was handed over to relatives of the deceased. On 23.07.2012, as part of investigation, a scientific assistant visited the place of occurrence and collected dry blood samples from her bed and other parts of the room. Hair samples collected from the pillow was also taken. PW35 conducted investigation till March, 2013. He submitted a request before the court concerned to Crl.Appeal No.48 of 2015 & 8 Crl.M.C.No.6231 of 2014 send the material objects collected by him to the Forensic Science Laboratory for examination. Ext.P36 is the forwarding note submitted for this purpose. Ext.P37 is the property list. Thereafter he handed over investigation to his successor.

7. It has come out in evidence that there were agitations by local people against lethargy on the part of the investigating officers in booking the real culprit. Therefore the case was handed over to Crime Branch and CBCID started further investigation.

8. PW38, who was working as Detective Inspector in Crime Branch took over investigation on 30.06.2013. He questioned some witnesses. He prepared another observation mahazar marked as Ext.P5. PW38 collected materials from the crime scene. In the course of investigation, he felt suspicion about role of the accused in the crime. When the investigation was directed against the accused, he absconded. Later he got information regarding whereabouts of the accused and on 11.09.2013 PW38 arrested the accused. On questioning the accused, PW38 got vital information regarding the crime. At 18.30 hours he arrested the accused. Ext.P40 is the arrest memo and Ext.P41 is the inspection memo. PW38 deposed that the accused confessed about concealment of material objects at different places. On the basis of his confession, PW38 identified the place where MO13 chopper was said to have been concealed by the accused. On his confession, blood stained Crl.Appeal No.48 of 2015 & 9 Crl.M.C.No.6231 of 2014 clothes worn by the accused at the time of incident and a purse with inscription 'Aiswarya Jewellers' were recovered. From the purse, a gold loan receipt, election ID card and a receipt obtained for payment of cable TV charges in the name of deceased were recovered. Ext.P11 is the mahazar. Extract of confession of accused is marked as Ext.P42. MOs.8 and 9 are the shirt and purse recovered at the instance of the accused. Copy of the identity card is MO10. Gold loan receipt is MO11 and MO12 is the receipt for paying cable TV charges. Thereafter PW38, as informed by the accused while in custody, went to the side of a pond attached to Thiruvachira Sreekrishna Temple. Accused informed PW38 that he had put the chopper in the pond. Since the accused told that he could not swim, PW38 contacted Coastal Police Station and procured the services of a diver. In the presence of witnesses and the accused, PW38 recovered MO13 knife from the pond with the help of a diver. PW38 collected scalp hair and body hair of the accused as part of investigation. He questioned the material witnesses and the accused was produced before court. He also prepared another observation mahazar on 13.09.2013 regarding location of the pond from where MO13 was recovered. That is marked as Ext.P14. All the material objects collected by PW38 on 13.09.2013 were entered in Ext.P46 property list. On 19.09.2013, PW38 submitted Ext.P47 forwarding note for sending the material objects for analysis. On 23.09.2013 the accused was received in Crl.Appeal No.48 of 2015 & 10 Crl.M.C.No.6231 of 2014 police custody as per court's order and on the basis of his confession, PW38, in the presence of the accused, questioned the shop owner from whom the accused had purchased a rope for making MO3 ladder. Ext.P48 is the relevant portion of his confession. Thereafter the accused led PW38 to Forest Department's herbal garden and found out the area from where some poles were collected for making MO3 ladder. After collecting other materials and submitting Ext.P51 property list and Ext.P52 forwarding note, he closed the investigation.

9. Finally PW39 took over the investigation on 06.01.2014 and he submitted a final report before the Magistrate Court.

10. Magistrate concerned, on finding that the case is one exclusively triable by a Court of Session, committed the case to the Sessions Court. Learned Additional Sessions Judge, to whom the case was made over, examined 39 witnesses and marked 55 documents and 16 material objects on the prosecution side. There was no defence evidence in the case.

11. Trial court, on an appreciation of evidence, found the accused not guilty of offences under Sections 450, 397, 302 and 201 of the Indian Penal Code, 1860 (in short, "IPC") and he was acquitted under Section 235(1) of the Code of Criminal Procedure, 1973 (in short, "Cr.P.C."). Thereafter, the trial court went on to issue notice to PW35 to show cause why he shall not be proceeded under Section 340 Cr.P.C. for Crl.Appeal No.48 of 2015 & 11 Crl.M.C.No.6231 of 2014 an alleged offence under Section 201 IPC committed by him. Trial court issued notice to PW38 to show cause why proceedings shall not be initiated against him under Section 340 Cr.P.C. for an offence under Section 194 IPC. Besides, the Additional Sessions Judge passed a judicial order to forward a copy of the trial judgment to the Director General of Police through the Registrar of this Court to take appropriate departmental proceedings against PWs 35 and 38 (the investigating officers). In addition to that the Superintendent of Police, Crime Branch, Kozhikode was directed to conduct further investigation in the matter under Section 173(8) Cr.P.C. to nab the actual culprit. To crown all these things, the Additional Sessions Judge found that the accused/respondent is entitled to get compensation to a tune of `1,00,000/- for false implication and the State has been directed to pay compensation to the accused and recover the same from PW38. These directions are specifically challenged by PW38 in Crl.M.C.No.6231 of 2014. According to him, there was a proper and fair investigation and all the relevant materials have been collected during the course of investigation. PW38, the investigating officer, challenged the legality and propriety of the strictures passed against the investigating officers without hearing the affected persons. Further, PW38 questioned jurisdiction of the court to direct payment of compensation to a tune of `1,00,000/- to the accused and the further direction to recover the same from him. Crl.Appeal No.48 of 2015 & 12 Crl.M.C.No.6231 of 2014

12. Heard Smt.Ambikadevi S., learned Special Public Prosecutor for Women and Children, for the State and Shri Dinesh Mathew Muricken, learned counsel for the respondent/accused. Heard Shri P.Martin Jose, learned counsel for the petitioner in Crl.M.C.No.6231 of 2014.

Points to be resolved:

13. I. What are the legal principles governing an appeal against acquittal filed under Section 378(1)(b) read with Section 386(a) Cr.P.C.?

II. Whether the order of acquittal passed by the trial court in favour of the accused/respondent is legal and proper?

III. Whether the court below failed to appreciate the evidence on record in the correct perspective?

IV. Whether the findings arrived at by the trial court can be regarded as perverse?

V. Whether the trial court properly exercised its jurisdiction while passing strictures against the investigating officers and also in passing an order to register criminal proceedings against them?

VI. Whether the trial court has jurisdiction to direct the State Government to pay compensation of `1,00,000/- to the accused on finding that he was falsely implicated in the case?

VII. Whether the direction issued by the trial court to the Crl.Appeal No.48 of 2015 & 13 Crl.M.C.No.6231 of 2014 Superintendent of Police, Crime Branch, Kozhikode to conduct further investigation is legally correct?

Point No.I

14. After amendment of Section 378 Cr.P.C. by Act 25 of 2005 w.e.f. 23.06.2006, the scope for filing appeals in cases of acquittal has been enlarged. As per Section 378(1)(a) Cr.P.C., the District Magistrate is authorised to direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence. This provision was added by the said amendment. For our purpose, Section 378(1)(b) is relevant. It reads as follows:

"378. Appeal in case of acquittal.-(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5), -

                 xxxxxxx
                 (b)       the State Government may, in any case,

direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision."

Sub-section (3) of Section 378 says that no appeal to the High Court under Sub-section (1) or Sub-section (2) shall be entertained except with the leave of the High Court. This is a case where the State has obtained leave before filing the appeal.

Crl.Appeal No.48 of 2015

& 14 Crl.M.C.No.6231 of 2014

15. Section 386 Cr.P.C. deals with powers of the appellate court. It applies to appeals from conviction, acquittal and for enhancement of sentence. In our case, what is relevant is the following. After perusing such records and hearing the Public Prosecutor for the appellant/State and the counsel for the acquitted accused, the appellate court may, in an appeal from an order of acquittal, reverse such order and direct that further enquiry be made or that the accused be re-tried or committed for trial, as the case may be, or find him guilty or pass sentence on him according to law.

16. We shall examine the binding legal pronouncements relating to appeals against acquittal. His Lordship Justice V.R.Krishna Iyer, in an inimitable style, laid down the following proposition in Shivaji Sahabrao Bobade and another v. State of Maharashtra (AIR 1973 SC 2622):

"5. Before dealing with the merits of the contentions, we may perhaps make a few preliminary remarks provoked by the situation presented by this case. An appellant aggrieved by the overturning of his acquittal deserves, the final court's deeper concern on fundamental principles of criminal justice. The present accused, who have suffered such a fate, have hopefully appealed to us for a loaded approach against guilt in consonance with the initial innocence presumed in their favour fortified by the acquittal that followed. We are clearly in agreement with this noble Crl.Appeal No.48 of 2015 & 15 Crl.M.C.No.6231 of 2014 proposition, stated in American Jurisprudence at one time (not now, though) as implied in the rule against double jeopardy, in the British system as a branch of the benefit of reasonable doubt doctrine and in our own on the more logical socially relevant and modern basis, that an acquitted accused should not be put in peril of conviction on appeal save where substantial and compelling grounds exist for such course. In India it is not a jurisdictional limitation on the appellate court but a judge made guideline of circumspection. But we hasten to add even here that, although the learned Judges of the High Court have not expressly stated so, they have been at pains to dwell at length on all the points relied on by the trial court as favourable to the prisoners for the good reasons that they wanted to be satisfied in their conscience whether there was credible testimony warranting, on a fair consideration, a reversal of the acquittal registered by the court below. In law there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted in to an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration. In our view the High Court's judgment survives this exacting standard.

Crl.Appeal No.48 of 2015 & 16 Crl.M.C.No.6231 of 2014

6. Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light-heartedly as a learned author has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons' and more severe punishment of those who are found guilty. Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial Crl.Appeal No.48 of 2015 & 17 Crl.M.C.No.6231 of 2014 protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ..." In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be stuck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. We have adopted these cautions in analysing the evidence and appraising the soundness of the contrary conclusions reached by the courts below. Certainly, in the last analysis reasonable doubts must operate to the advantage of the appellant. In India the law has been laid down on these lines long ago."

In State of U.P. v. Anil Singh (AIR 1988 SC 1998) the court made following observations in a case laid before it challenging an order of acquittal recorded by High Court:

"15. It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses.

Crl.Appeal No.48 of 2015 & 18 Crl.M.C.No.6231 of 2014

It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform."

17. It is well settled that an appellate court has power to re- consider the evidence upon which an order of acquittal is passed. Appellate court shall not be oblivious of the sublime principle that if two views are possible on the evidence adduced in a case, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be adopted. These principles have been restated by the apex Court in Syed Peda Aowalia v. Public Prosecutor, High Court of A.P., Hyderabad (2008 AIR SCW 4326).

18. Learned counsel for the accused relied on Basappa v. State of Karnataka (2014 AIR SCW 1529) to urge a proposition that interference can be made in an appeal against acquittal only if decision of the trial court is perverse. Interferences made only on the ground that another view was also possible have been held to be unjustified.

19. We do not intend to multiply the authorities in which the same principles have been restated in different words. Lastly, the Supreme Court in Vijay Mohan Singh v. State of Karnataka ((2019) 5 SCC 436), in an appeal against acquittal, held thus:

"12. Considering the aforesaid decisions, it Crl.Appeal No.48 of 2015 & 19 Crl.M.C.No.6231 of 2014 emerges that even in the case where the High Court in an appeal against the order of acquittal interfered with the order of acquittal without specifically considering the reasons arrived at by the learned trial court and without specifically observing that the reasons are perverse, this Court can still maintain the order of conviction passed by the High Court, if this Court is satisfied itself that the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it are demonstrably unsustainable and the judgment of the appellate court is free from those infirmities. It also emerges that the High Court is entitled to re-appreciate the entire evidence independently and come to its own conclusion, however, the High Court would not be justified in interfering with the order of acquittal solely on the ground on re-appreciation of the entire evidence that two views are possible."

20. We succinctly enumerate the following propositions usually coming up for consideration in appeals against acquittal:

(i) A Judge does not preside over a criminal trial merely to see that no innocent man is punished; he also presides to see that a guilty man does not escape and one is as important as the other.

(ii) In law, there is no fetter on the plenary power of the appellate court to review, re-appreciate and reconsider the whole evidence on which an order of acquittal is founded.

(iii) Provisions in the Cr.P.C., especially Section 386(a), put Crl.Appeal No.48 of 2015 & 20 Crl.M.C.No.6231 of 2014 no restriction or condition on the exercise of such power and an appellate court, on evidence before it, may reach at its own conclusion both on questions of facts and law.

(iv) Various expressions such as "substantial and compelling reasons", "good and sufficient grounds". "very strong circumstances", "glaring mistakes", etc. usually mentioned as grounds for interference are not at all intended to curtail the extensive powers of an appellate court exercisable in an appeal against acquittal.

(v) In an appeal against acquittal, unless the judgment of the trial court is found to be perverse, the appellate court would not be justified in substituting its own view and reversing the judgment of acquittal. Standard English dictionaries ascribe meaning to the word "perverse" as showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable or deliberately departing from what is normal and reasonable. In Gaya Din v. Hanuman Prasad ((2001) 1 SCC 501), the expression "perverse" has been explained to mean the findings of a subordinate authority not supported by evidence brought on record or those are against law or those suffer from a vice of procedural irregularity. Such findings are liable to be interfered with in an appeal against acquittal.

(vi) The appellate court must bear in mind the double presumption in favour of the accused in an appeal against acquittal.

Crl.Appeal No.48 of 2015 & 21 Crl.M.C.No.6231 of 2014

Firstly, the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court is available in favour of the accused. Secondly, a competent court having tried and acquitted the accused, the presumption of his innocence is further reaffirmed and strengthened by the judgment.

(vii) If two reasonable conclusions are possible in a case on the basis of evidence on record, the appellate court should not substitute its own view to disturb the finding of acquittal recorded by the trial court ignoring the fact that the trial court had an opportunity of recording and marshalling the evidence and the advantage of noting demeanour of the witnesses.

(viii) Danger of exaggerated devotion to the rule of benefit of doubt at the cost of social defence based on a misplaced sentiment that all acquittals are always good, regardless of the justice to the victim and community, negates the public accountability of the justice delivery system. If unmerited acquittals become a general rule, they tend to lead to disregard of the law.

21. These are vital aspects relating to the exercise of appellate jurisdiction in an appeal against acquittal. Point answered accordingly.

Point Nos. II to IV

22. In order to appreciate these issues, we have to look into the allegations levelled by the prosecution against the accused and evidence Crl.Appeal No.48 of 2015 & 22 Crl.M.C.No.6231 of 2014 adduced by them to substantiate the allegations.

23. Based on the materials in the records and on a perusal of the final report, the learned Additional Sessions Judge framed the following charge against the accused:

"CHARGE I, ..............., Special Additional Sessions Judge (Marad Cases), Kozhikode do hereby charge you the above said accused as follows :

Firstly That you, on 21-07-2012 at 1.30 a.m., with an intention to commit robbery, committed lurking trespass into house no.21/4029 of Kozhikode Corporation by removing the tiles and thereby, committed an offence under section 450 I.P.C.

Secondly That you, trespassed to the house with a chopper and committed robbery of Rs.1,600/- which was kept under a pillow of the bed of deceased Sundari and thereby committed an offence under section 397 I.P.C.

Thirdly That you, when Sundari woke up and caught your shirt, with an intention to kill her and hide your identity, you cut her with the chopper on her hands, head, face and neck and caused serious injuries and Sundari succumbed to the injuries on the same day at 4.15 a.m and thereby committed an offence under section 302 I.P.C.

Crl.Appeal No.48 of 2015 & 23 Crl.M.C.No.6231 of 2014

Fourthly That after committing these offences, you, with an intention to destroy the evidence had thrown the blood stained chopper into a pond situated near Thiruvachira Sree Krishna Temple and further washed the blood-stained shirt and dothy thereby committed an offence under section 201 I.P.C.

The above said acts are punishable under sections 450, 397, 302 and 201 of Indian Penal Code and is within my cognizance.

I hereby direct that you be tried for the said offences."

24. Unchallenged facts are that deceased Sundari Amma was residing in a residential unit, forming part of a building, where four such units are comprised of, sharing common walls and a roof. The incident admittedly took place on 21.07.2012 at about 1.30 hours in the night. The building was owned by one Hamza Koya and it is situated near Meenchandha By-pass at Kozhikode. Sundari Amma resided as a tenant for many years. Her residential unit was on the extreme eastern side of the entire building. PW2 occupied the immediate western room. Still west was the room occupied by one Savithri Amma and 4 th room on the extreme western side was occupied by PW1. On further west, there was a narrow path originating from the By-pass road. This was the access to the entire building. On the southern side of the building, there are common latrines and bathrooms used by the tenants. In between latrines Crl.Appeal No.48 of 2015 & 24 Crl.M.C.No.6231 of 2014 and bathrooms, a pathway was in existence leading to the house of landlord. At the time of incident, there was a partly constructed building in between the landlord's house and tenanted buildings. PW7, son-in-law of the landlord was constructing that building.

25. Admittedly Sundari Amma was residing alone in the room at the time of incident. PW6, her grand daughter had been staying with her for some time. She later went back to her native place in Wayand. Sundari Amma eked out a living by selling idlies (rice cakes) in the nearby hotels. As a motive for murder, according to the prosecution, the assailant must have thought that Sundari Amma had handsome money in her possession because immediately prior to the incident she had settled accounts with all the hoteliers to whom she used to supply idlies. Sundari Amma's main customer was City Light Hotel at Meenchandha. The incident took place close to the start of Ramzan fasting. It is common knowledge that in the locality, during Ramzan, many hotels remain closed in the day time. So, it was not possible for Sundari Amma to sell idlies as it is an important item usually for breakfast. Gist of the allegations made by the prosecution against the accused is that he used to visit Sundari Amma's house for collecting idlies as employee in the City Light Hotel, Meenchandha and was of the belief that Sundari Amma had received money from various hotels after settling accounts. Prosecution further contended that the accused with an intention to commit robbery, climbed Crl.Appeal No.48 of 2015 & 25 Crl.M.C.No.6231 of 2014 atop the tiled roof through a ladder and after removing some tiles, he descended to the room by using a rope. Prosecution would further contend that when he tried to grab money kept inside Sundari Amma's pillow, she woke up and caught hold of his shirt. Immediately he took out MO13 chopper (wrongly described as 'knife' in the appendix) and inflicted cut injuries on her head and face. When the accused came to know that people have assembled near Sundari Amma's house, he escaped into darkness through the back door. Some of the prosecution witnesses took Sundari Amma to Medical College Hospital, Kozhikode and she was declared dead at about 4.15 a.m. on the same day.

26. Learned Sessions Judge took note of the fact that originally the case was investigated by PW35, Circle Inspector of Police. Since no visible progress was noticed, there were agitations by local people against the slow pace of investigation. Hence the investigation was handed over to the Crime Branch (CBCID). Thereafter PW38 took over and has done a major part. After completing the investigation, PW39 laid the final report.

27. Admittedly, nobody witnessed the actual commission of murder. So it can be considered as a case to be decided on the basis of circumstantial evidence brought out by the prosecution against the accused. Shortly after the incident, PW1 lodged Ext.P1 FIS, thereby the investigative machinery swung into action. There can never be a dispute Crl.Appeal No.48 of 2015 & 26 Crl.M.C.No.6231 of 2014 that death of Sundari Amma was a homicide. Ext.P15 postmortem certificate would unambiguously prove this fact. We shall extract the antemortem injuries noted in Ext.P15, which is proved by PW21, the then Assistant Professor, Department of Forensic Medicine, Government Medical College Hospital, Kozhikode:

"INJURIES (ANTE-MORTEM)

1. Incised wound (chop-cut) 8cm x 0.5 - 1 cm, entering cranial cavity, oblique, on middle of forehead to left side of bridge of nose. Lower left end just inner to left malar eminence. Upper right end 4 cm above middle of right orbit. Underneath frontal bone showed cut fracture with shelving towards back and right, having a gap of 0.5

- 0.8 cm. Dura matter seen torn. Through this injury incised brain matter visible.

2. Incised wound (chop cut) 3 x 0.3 x bone deep, oblique on right forehead. Upper right end 2cm above middle of orbit. Lower left end merging with right margin of injury no.1. Underneath frontal bone showed cut fracture.

3. Incised wound, 1 x 0.5 cm, oblique, on upper inner margin of right orbit following its curvature. Underneath orbit showed cut fracture.

4. Incised wound 6 x 0.2 - 0.5cm x bone deep on upper aspect of right half of forehead along hair line, curved in nature. Left end 8 cm above root of nose. Right end 3 cm above middle of right orbit. Margin showed shelving towards front and down.

5. Incised wound, 2.5 x 0.5 cm x bone deep, on left Crl.Appeal No.48 of 2015 & 27 Crl.M.C.No.6231 of 2014 half of forehead, oblique, lower left end 5 cm above middle of orbit. Upper right end 1.5 cm away from inner end of injury no.4. In depth the frontal bone showed cut fracture.

6. Incised wound (chop cut)10 x 0.3 - 0.5 x bone deep oblique. On left half of forehead towards left zygomatic arch. The margins showed shelving downwards and towards back and slightly to right. Underneath upper margin of left orbit showed cut fracture. Left eye ball seen cut.

7. Incised wound (chop cut), 9.5 x 0.5 - 1 cm bone deep, on left cheek, oblique, upper right end 1.2 cm left to naso labial fold. Lower left end at jaw border 7 cm left to chin. This injury was in line and same obliquely with injury no.1 and was 3 mm below its lower end. The margin showed shelving towards back, right and down. Underneath left ramus or jaw bone, 1 cm in front of angle and right maxilla showed cut fracture.

8. Incised wound, 9.5 x 0.5 cm - 1 cm x bone deep at its front half, transverse, front to back, on left side of head, front end just behind malar eminence and 8.5 cm away midline. Back end had involved left pinna on mastoid, completely dividing it at a level 2 cm above top of helix. (ear canal area spared). The edges of the wound was downwards and to right. There was a superficial incised wound 2 cm correspondingly underneath the cut portion of pinna.

9. Superficial incised wound, 9 cm x 0.1 - 0.3 cm, 0.5 cm below and parallel to injury no.8. The back portion involved partial cut on the pinna. There was a Crl.Appeal No.48 of 2015 & 28 Crl.M.C.No.6231 of 2014 corresponding superficial incised wound 1 x 0.2 cm on left mastoid. All these are parallel to injury no.8.

10. Incised wound (chop cut), arc shaped convexity facing lower and left, at left under chin area. Upper end 3.5 cm left to chin. Other end 4 cm below chin. The margins showed shelving towards right underneath the left ramus of jaw showed cut fracture.

11. Incised wound (chop cut), 7.5 x 0.5 cm to 1 cm bone deep on left side of head, transverse, front end 9 cm behind root of nose. This injury was 3 cm above and parallel to injury no.8. The direction of shelving was down and right. The scalp hair at margins showed clean-cut. Underneath the outer table of squamous-temporal bone showed cut fracture, transverse, 2 cm long and 2.5cm below the level of injury.

12. Incised wound (chop cut), 2.5 x 0.1 cm, oblique, on left side of head. Upper front end was 4.5 cm above root of ear. Underneath outer table of skull showed fracture.

13. Incised wound, 2.5 x 0.2 cm x bone deep on left side of head, 2.5 cm above and parallel to previous.

14. Incised wound (chop cut), 9.5 x 0.2 - 0.5 cm, bone deep. Left side of top aspect of head transverse - front to back. Front end 3 cm behind left frontal eminence. Back end reaching parietal eminence. Underneath the skull bone-left parietal showed cut fracture with shelving downwards.

15. Incised-wound (chop cut), 3 x 0.3 cm x bone deep transverse-front to back, top of right aspect of front of head. Front end 7.5 cm above left orbit and this injury was 2.5 cm above and parallel to front end of previous Crl.Appeal No.48 of 2015 & 29 Crl.M.C.No.6231 of 2014 injury, edges showed shelving downwards.

16. Incised wound (chop cut), 6.5 x 0.2-1cm bone deep, oblique, on top of front aspect of head. Front lower right end 6.5 cm above right orbit. Back end was at midline top of head and 15 cm above root of neck.

17. Incised wound 1.5 x 0.2 x bone deep, oblique, on back of head, lower right back end at back of right parietal eminence.

18. Incised wound (chop cut), 4 x 0.5 x 1 cm bone deep, over back of right forearm 5 cm below elbow, transverse. In depth showed cut fracture of ulna.

19. Superficial incised wound, transverse, 1.2 cm x 0.1 cm, over front of right forearm, 6 cm below elbow.

20. 'L' shaped incised chop cut, vertical limb 6.5 cm, transverse limb 5 cm, of 1 to 1.5 cm wide, on front of right forearm. Transverse portion 3 cm above wrist. In depth, the flexor tendons and muscles showed cut injury, upwards and backwards.

21. Incised chop cut, 2.5 x 0.2 cm, muscle deep, 1.8 cm above and parallel to transverse portion of injury no.20.

22. Incised (chop cut), 3.5 x 0.5 to 0.8 cm bone deep, on dorsum of root of right ring finger to web space between it and middle finger.

23. Incised chop cut, 3 x 0.5 - 1 cm, on dorsum of proximal inter phalangeal joint of right ring finger and the above joint showed fracture separation.

24. Superficial incised wound, 2 x 0.2 cm x 1cm on inner end of right collar bone.

25. Superficial incised wound, 2 x 0.2 cm on left infra Crl.Appeal No.48 of 2015 & 30 Crl.M.C.No.6231 of 2014 clavicular fossa, oblique, upper right end 2 cm below middle of collar bone. There was a tailing of 3.5 cm at its lower left end.

26. Incised chop cut, 7 x 7 cm, on ulnar border extending to front and dorsum of left forearm. Both bones showed cut fracture and shelving was down and front. This injuries produced division in muscles, tendons and vessels, extending to near total amputation.

27. Incised chop cut, 2.3 x 0.2 cm x bone deep almost vertical. Lower end 8 cm above root of right ear on right side of head. In depth, skull bone parietal showed out fracture.

28. Superficial incised wound, reverse L shaped, vertically 5 cm and transverse 2.5 cm long. Bend at midline 6 cm below root of neck. Upper end of long limb 2 cm left to back midline.

29. Floor of right anterior cranial fossa showed comminuted fracture and globe of eye showed contusion. Brain showed cut injuries at multiple sites corresponding to cut fractures to skull.

All the injuries were fresh in nature.

Hair on head at the edges of wounds showed clean cuts."

28. PW21 has emphatically stated that Sundari Amma's death was due to multiple cut injuries received on head, involving brain. Dry blood was taken for grouping and head hair samples were also handed over to the police officer in-charge. PW21 had taken hair samples of the accused too, as per a requisition by the police, on 12.09.2013 after he was arrested. Ext.P16 is the seizure mahazar revealing this fact. The Crl.Appeal No.48 of 2015 & 31 Crl.M.C.No.6231 of 2014 investigating officer had shown MO13 chopper to PW21 and he opined that injuries 1 to 29 could be caused by a weapon like MO13. It is also deposed by him that all the injuries could be caused by MO13. Although PW21 was cross-examined on the above aspects, we find no reason to discard his testimony regarding the manner in which injuries were inflicted on the victim. In cross-examination on PW21, questions were put regarding the weight, shape and size of the weapon. PW21 deposed that MO13 weighted 330 grams. Its blade was having a width of 4 cm. Thickness of the blade was between 3-4 mm. According to PW21, fracture of skull bone could be caused by a weapon like MO13. Since a doubt regarding the nature of weapon was raised, we passed an order on 27.01.2020 directing the court below to forward MO13 to this Court. This was done because in the appendix MO13 is described as a "knife" whereas testimony of PW21, coupled with injuries noted in Ext.P15, show that it cannot be an ordinary knife. On a close scrutiny of MO13, we found that it could be better called a chopper, capable of inflicting the injuries noted in Ext.P15. Therefore, we have no hesitation to hold that Sundari Amma died on account of a gruesome attack unleashed on her by an assailant by using a weapon like MO13. And, we are also satisfied that in the ordinary course of nature, a weapon like MO13 is capable of causing injuries noted in Ext.P15. On an analysis of the entire evidence in this regard, we cannot approve the finding of the learned trial Judge that it Crl.Appeal No.48 of 2015 & 32 Crl.M.C.No.6231 of 2014 is highly suspicious whether a weapon like MO13 could have been used for the attack. We disagree with the above view taken by the court below. Whether MO13 was actually used in the murder is a matter to be decided on evidence.

29. One of the crucial findings of the trial court which led to acquittal of the accused is that PWs 1 and 2 are unreliable witnesses. Learned Prosecutor vehementally argued that the approach made by the trial court in appreciating evidence of PWs 1 and 2 is perverse. According to her version, the court below was searching for excuses to acquit the accused. Per contra, learned counsel for the accused strongly supported the views taken by the court below that no credence can be attached to the testimony of these witnesses and conviction of the accused on the basis of their doubtful testimony would result in miscarriage of justice. It becomes therefore incumbent on us to scrutinise the testimony of these witnesses in a great detail.

30. PW1 is the author of Ext.P1 FIS. He went to Panniyankara Police Station at 5.00 hours in the morning on 21.07.2012 and furnished the information to PW34, Sub Inspector of Police. Gist of Ext.P1 is that he and the deceased were staying in different residential units in a line building. The incident happened at about 1.30 hours in the night on 21.07.2012. At that time, he heard a commotion from the side of Sundari Amma's house. PW1 switched on a light on the backside of his kitchen Crl.Appeal No.48 of 2015 & 33 Crl.M.C.No.6231 of 2014 and came out by opening the kitchen door. At that time, he saw a person running away through a narrow passage by the side of the bathrooms and latrines. PW1 saw other occupants of the building standing by the side of Sundari Amma's kitchen. He asked them as to what was the incident. Then they informed PW1 that somebody had inflicted cut injuries on Sundari Amma and she was lying in extreme distress and affliction. PW1 then entered the house and found Sundari Amma lying with bleeding injuries. Immediately he called police and informed the matter. Police rushed to the place of occurrence and Sundari Amma was taken to Medical College Hospital, Kozhikode in a Fire Force ambulance. At 4.15 a.m. she passed away. PW1 deposed that he knew Sundari Amma for more than 12 years and she was living out of the income derived by sale of idlies in nearby hotels. Fact that she was staying alone is also disclosed in Ext.P1.

31. Learned counsel for the accused argued that PW1 omitted to mention two important aspects in Ext.P1. He has not mentioned identity of the assailant. Secondly, his versions at the time of examination that he had a torch light and the assailant, while running away with a bloodstained weapon, turned back and PW1 clearly saw his face in the light from the torch were not mentioned in Ext.P1. According to Shri Dinesh Mathew Muricken, PW1 artificially embellished his initial version in Ext.P1, so that it seriously affected his credibility. Crl.Appeal No.48 of 2015 & 34 Crl.M.C.No.6231 of 2014

32. This argument was met by Smt.Ambikadevi by contending that it is a well settled proposition in law that FIS need not be a catalogue of all the events. It need not contain all the minute details relating to the occurrence. True, it is trite that lodging FIS is only to set the investigation machinery into motion. However, identity of the accused is an issue in this case because his involvement was revealed for the first time after 14 months of the incident. It is also important to note that neither PW1 nor PW2 had any previous acquaintance with the accused. Yet, there was no Test Identification Parade (TI Parade) conducted during the investigation to confirm identity of the assailant.

33. PW1 in chief-examination deposed with modifications to the recitals in Ext.P1. He testified that when he came out, he found PW2 and his wife standing in front of the building. They together came to the backside and at that time, they found a person running away and disappearing into the darkness. PW1, in chief-examination, admitted that he had no previous acquaintance with the person who ran away. He was wearing a soiled cloth. PW1 deposed that he chased the assailant for a short distance. He was equipped with a torch light and a stick. After chasing for a short distance, he saw the face of the assailant when he turned back. He could see the face of the aggressor in the light from the torch and street light. PW1 did not attempt to catch hold of the assailant as he was alone. Thereafter, he returned and found Sundari Amma lying Crl.Appeal No.48 of 2015 & 35 Crl.M.C.No.6231 of 2014 in a pool of blood. He deposed that they found a plastic rope (MO1) tied to the rafters on the roof used by the assailant to descend into the room. They also found an improvised ladder (MO3) leaning on to the roof outside. PW1 deposed that he had occasion to see the accused on 11.09.2013 from the Crime Branch Office and he identified the accused from the dock also.

34. In cross-examination, he deposed that on hearing an uproar, he went to front side of the building initially and then to the backside. This statement is contradictory to his version given in Ext.P1 that he had opened the kitchen door. Obviously, kitchen was on backside of the building. He modified his version by contending that on hearing a loud cry, he went to the front side of deceased Sundari Amma's house and found PW2 and his wife standing in front of that house. According to PW1, PW2 instructed him to go to the backside of Sundari Amma's house. All these aspects do not derive any support from the testimony of PW2. PW1 admitted in cross-examination that he never had gone to City Light Hotel where the accused was working. He also admitted that he had not met the accused prior to the incident. Although PW1 deposed that he informed PW34, the Sub Inspector of Police, that the assailant turned towards back while running and PW1 had occasion to see his face, why it was omitted in Ext.P1 was not properly explained either by him or by PW34. PW1 further deposed that before lodging Ext.P1 FIS he along with Crl.Appeal No.48 of 2015 & 36 Crl.M.C.No.6231 of 2014 PW7 Sadhik, the son-in-law of the building owner, had gone in search of the assailant to various places including City Light Hotel and enquired whether a person with bloodstained clothes came over there. It is an admitted case that City Light Hotel remained open even during night hours.

35. PW2 Raghupathi is also an inhabitant of the line building. During chief-examination, he deposed that he knew Sundari Amma long prior to the incident. He also testified that the incident took place on 21.07.2012 at about 1.30 hours in the night. Sundari Amma's distress cry woke him up at about 1.30 a.m. and he came out through the front door. He knocked at the door of Sundari Amma, but it was not opened. According to PW2, he thereafter came towards the backside through his back door and found PW1 and his wife standing in the backyard. This version does not agree with the testimony of PW1. He also saw a person running away through Sundari Amma's kitchen door and PW1 chased him. PW2 had a fleeting sight of the assailant who was shabbily dressed. PW2 has no case that he had seen the assailant's face. When he entered Sundari Amma's house, he found the victim reeling under excruciating pain with multiple injuries. She was moaning in pain and was unable to speak out. According to PW2, the person who ran away was shown to him from Crime Branch Office. He identified the accused in the dock. Here also the defence counsel raised a serious challenge about Crl.Appeal No.48 of 2015 & 37 Crl.M.C.No.6231 of 2014 identification of the assailant by PW2 in the absence of a TI Parade.

36. In cross-examination, it was brought out that he did not see PW1 or his wife in the front-yard of the line building. PW2 emphatically stated that he did not talk to PW1 from the front side of his house. According to his version, he was the one who reached first at the backside of the building. PW2 further deposed that he found a silhouette of a person coming out of Sundari Amma's house through the back door and he gathered an impression that the assailant was wearing trousers. But, he was not very sure of the nature of apparel worn by the assailant. PW2 clearly deposed that Sundari Amma did not mention the name of the aggressor. She complained about excruciating pain and she informed that she was feeling nausea. Sundari Amma was crying by calling her daughter Ambi's name. A conjoint reading of the testimonies of PWs 1 and 2, we find that the trial court is right in taking a view that it will be unsafe to convict the accused for an offence of murder solely relying on their oral evidence. We also notice that certain aspects in PW1's testimony are missing in Ext.P1 FIS and PW2 do not support PW1 on many important aspects. On reading the testimonies of PWs 1 and 2 together, we find disharmony regarding the place where they met on hearing the victim's cry. So also, where did they meet for the first time before seeing the assailant running away. Although PWs 1 and 2 deposed that they had occasion to see the accused from Crime Branch Crl.Appeal No.48 of 2015 & 38 Crl.M.C.No.6231 of 2014 Office, they did not mention any special reason for remembering the accused for 14 months after the incident, especially when they have no case that the assailant was a person known to them previously or they noticed any special feature to remember the assailant with specificity.

37. Court below commented on the absence of TI Parade and it found fault with PW38 for not bringing true facts to the court's notice. Absence of TI Parade appears to be a material flaw in the investigation, especially when PWs 1 and 2 have no case that they had previous acquaintance with the accused. Besides, PW2 did not depose that he had ever seen face of the assailant when he ran away after the incident. PW1's version that he had a fleeting sight of the assailant when he turned back is also not free from doubt. Regarding the apparel worn by the assailant at the time when he fled away, there are incongruities. Even though learned Prosecutor vehementally opposed the deductions by the court below, we do not find any reason to disagree with the court below in this respect.

38. It is a well settled principle in law that TI Parade do not constitute a substantive evidence. It is primarily meant for helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. (see Matru v. State of Uttar Pradesh (AIR 1971 SC 1050). TI Parade can only be used to corroborate the statement in court (see Santokh Singh v. Izhar Crl.Appeal No.48 of 2015 & 39 Crl.M.C.No.6231 of 2014 Hussain ((1973) 2 SCC 406). Sanctity of a properly conducted TI Parade rests on the fact that a witness, who has no previous acquaintance with the accused, gets the first opportunity to identify him during the investigation and his identification in court, which is the substantive evidence, gets more probative value because of the previous identification.

39. In Mahabir v. State of Delhi (AIR 2008 SCW 3869) it has been held thus:

"The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime ..................... It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the Crl.Appeal No.48 of 2015 & 40 Crl.M.C.No.6231 of 2014 prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution."

40. It is trite that substantive evidence is the evidence of identification in court. This proposition in law is well settled by a catena of decisions. The facts, which establish identity of accused persons, are relevant under Section 9 of the Evidence Act. Generally, the substantive evidence of a witness is the statement made in court. Evidence given by a witness regarding identification of an accused person at the trial for the first time is, from its very nature, inherently of a weak character. Conducting prior Test Identification, therefore, is to test and strengthen trustworthiness of the evidence. It is considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused, who are strangers to the witnesses, in the form of earlier identification proceedings. We do not intend to enlist all the precedents on this point because the above mentioned principles are unassailable.

41. Questions were put to PW38, the investigating officer, relating to the importance of conducting TI Parade in this case. Even though in chief-examination PW38 deposed that on questioning the employees of City Light Hotel, he felt suspicion about the involvement of the accused, how he zeroed in on the accused was not revealed by him. Crl.Appeal No.48 of 2015 & 41 Crl.M.C.No.6231 of 2014 It is important to note that PW38 was a Crime Branch Detective Inspector during that time and he took up investigation of the case only on 30.06.2013. By this time, about 11 months have elapsed. It is also evident that he visited the scene of occurrence for the first time on 05.09.2013 only. The accused was apprehended on 11.09.2013 and his arrest was recorded on 12.09.2013. We shall deal with recovery of material objects, effected by PW38 on the alleged confession of the accused, in the subsequent paragraphs.

42. Regarding identity of the accused, various questions have been put to PW38. He admitted in cross-examination that PWs 1 and 2, at the time of deposing before him, had stated that the assailant while running away turned back. But, none of these witnesses stated before PW38 that PW1 flashed a torch light and they saw the face of the assailant when he turned back. This answer given by PW38 also makes the testimony of PW1 seeing the aggressor's face doubtful.

43. Answer given by PW38 for not conducting TI Parade is rather strange. He admitted that no TI Parade was conducted calling PWs 1 and 2 to identify the accused. According to him, he assumed that PWs 1 and 2 might have previous acquaintance with the accused. This assumption of PW38 is without any factual basis. Likewise, incongruity in the testimony of PWs 1 and 2 regarding dress worn by the aggressor has been further complicated by the testimony of PW38.

Crl.Appeal No.48 of 2015

& 42 Crl.M.C.No.6231 of 2014

44. To crown all these infirmities, PW38 deposed that when he inspected the crime scene on 05.09.2013, he was not sure whether the scene of occurrence was disturbed in the meantime. To a pointed question by the defence counsel whether PW38 investigated about 3-4 Tamil speaking people, who visited the deceased's house at 8.00 p.m. on 20.07.2012 and their possible involvement in the incident, he answered that he came to know that lot of persons used to come to the deceased's house for consuming leftover idlies. Similarly, physical appearance and type of dress worn by the assailant could not be gathered by PW38 from the testimony of PWs 1 and 2.

45. Reckoning all these aspects, we find merit in the trial court's finding that the investigation regarding identity of the assailant was in shambles.

46. Smt.Ambikadevi, on behalf of the State, contended that the court below thoroughly erred in finding that testimony of PW9, a co- worker of the accused, inspired no confidence to hold that the accused was responsible for the incident.

47. PW9 and the accused were working in City Light Hotel, Meenchandha, as cleaning workers. Both of them resided in the hotel. PW9 deposed that deceased Sundari Amma used to supply idlies in the hotel. PW9 deposed further that the accused had a proclivity to pilfer cash belonging to staff members in the hotel.

Crl.Appeal No.48 of 2015

& 43 Crl.M.C.No.6231 of 2014

48. To prove this point, PW10 was also examined by the prosecution. He is one of the partners of the hotel. It was a hotel functioning day and night. Accused was engaged as a cleaning worker. PW10 deposed that Sundari Amma used to supply idlies to PW10's hotel. He also deposed that when Sundari Amma was unable to supply idlies, the accused was deputed to collect idlies from her house. He stated that accounts were settled before the start of Ramzan fasting. PW10 further deposed that small thefts used to occur in the hotel. PW10 and workers had a suspicion about the involvement of the accused in stealing cash and other valuables. On one day, there was a shortage of `1,500/- in the cash counter. On examining CCTV installed in the hotel, he found the accused lifting the front shutter and entering hotel and thereafter he switched off the camera. After that incident, the accused quit the job.

49. PW9 deposed that on 20.07.2012 at about 11.30 hours in the night the accused came to the hotel. He informed PW9 that he was going to change dress and he went out. He was engaged in the hotel for cleaning vessels. Normally cleaning work started at about 12 o' clock in the night. PW9 deposed that after the accused had left at 11.30 p.m. on 20.07.2012, he was seen in the hotel at 2.45 a.m. on 21.07.2002 only. In the meantime two persons came to the hotel and informed that Sundari Amma was hacked by somebody. PW9 deposed that after the accused returned to hotel, he questioned PW9 as to whether he inflicted the cut Crl.Appeal No.48 of 2015 & 44 Crl.M.C.No.6231 of 2014 injuries. In answer to the accused's query, PW9 retorted how could he do when he was working in the hotel. PW9 went to sleep at 5.00 a.m. According to his testimony, hotel used to be open till 3.00 a.m. In cross- examination PW9 deposed that he had lost petty amounts and he had suspicion on the accused as they were staying in one room. Further, PW9 deposed in cross-examination that on 21.07.2012 at 2.00 a.m., PWs 1 and 7 came on a motor bike and informed PW11, Abdul Jaleel, who was another partner along with PW10, about the incident. PW11 deposed in tune with the testimony of PW10. He deposed that the accused was working in the hotel on the date of occurrence. But, he did not remember till what time the accused was present in the hotel. PW11 also testified that two persons came on a motor bike and informed that Sundari Amma was attacked and they enquired whether any suspicious person had come over to the hotel. In cross-examination, PW11 admitted that workers from other States were also working in his hotel. PW11 specifically deposed that when two persons came at about 2 o' clock in the night on 21.07.2012 to inform about the gruesome incident, the accused was standing by the side of cash counter. Shri Dinesh Mathew Muricken strongly contended that this deposition by PW11 would clearly indicate that the accused, who said to have committed the crime at 1.30 a.m., after escaping from the scene of occurrence, jettisoning MO13 in a temple pond and taking a dip in the pond could not have reached the Crl.Appeal No.48 of 2015 & 45 Crl.M.C.No.6231 of 2014 hotel at 2 o' clock in the night. It is also pointed out that even if we accept the version of PW9 that the accused disappeared from the hotel at 11.30 p.m. on 20.07.2012, there would not have been enough time for the accused to cut and remove poles for making MO3 improvised ladder, to sneak into the house of the deceased and then commit murder at 1.30 p.m. and thereafter return to the hotel by 2.00 a.m. after causing disappearance of evidence. According to the learned counsel, testimony of PW9 is belied by the testimony of PW11. This is also a point highlighted by the trial court to find that timings set out by the prosecution will indicate that the accused could not have been the assailant.

50. In this context, Smt.Ambikadevi contended that the court below did not properly consider that a person running fast could have done all these things within the time suggested by the prosecution. According to her, PW9 should be believed to find that the accused came back to the hotel only at 2.45 a.m. We agree with the finding of the court below that the accused was seen at 2.00 a.m. by PWs 1 and 7 along with PW11, wearing no bloodstained or wet cloths, would not probabilise the prosecution case. On these grounds testimony of PW9 was properly disregarded by the court below. We find no infirmity in this finding by the trial court.

51. Another contested issue is regarding recovery of MO13 chopper said to have been effected by PW38 as per Ext.P12 mahazar. Crl.Appeal No.48 of 2015 & 46 Crl.M.C.No.6231 of 2014 PW38 at the time of evidence deposed that on the basis of Ext.P43 confession made by the accused while in custody, the accused along with PW38 and other police officers, in the presence of independent witnesses, went to the side of a pond attached to Thiruvachira Sreekrishna Temple. Ext.P12 is the mahazar prepared for recovery of MO13 chopper. PW14 is the independent witness examined to prove recovery of MO13 at the instance of the accused in custody. He deposed that PW13, Special Marine Guard, dived into the pond and searched out MO13 chopper. It is to be borne in mind that the accused has a case that he did not make Ext.P43 confession and MO13 was not recovered at his instance. During cross-examination on PW38, it was suggested that MO13 was falsely put by him in the pond prior to its recovery.

52. Our attention has been drawn to some glaring discrepancies in the testimony of PWs 38 and 13. As stated above, PW13 was working as Special Marine Guard in Coastal Police Station, Chaliyam. In his chief- examination, he deposed that on 12.09.2013 he came to Thiruvachira Sreekrishna Temple pond at about 11.30 a.m. At that time PW38 and other police officers had brought the accused by the side of the pond. But, this deposition does not derive support from PW38. According to PW38, the accused while in custody confessed as stated in Ext.P43 and he was taken to the side of the said pond. PW38 deposed that the accused pointed out a location in the pond where he had abandoned Crl.Appeal No.48 of 2015 & 47 Crl.M.C.No.6231 of 2014 MO13. When questioned, the accused said that he could not swim. Therefore, he contacted the Station House Officer, Coastal Police Station, Chaliyam and secured the assistance of PW13 for diving. There is a patent irreconcilability in the matter of time when we read the testimony of PWs 38 and 13 together.

53. As per the deposition of PW38, at 10.30 a.m. on 12.09.2013, he effected recovery of MOs 8 to 12 as per Ext.P11 from an unfrequented upstair portion of City Light Hotel, Meenchandha. According to him, Ext.P11 mahazar for recovery of the aforementioned material objects was prepared at 10.30 a.m.. Ext.P12 seizure mahazar would show that after recovery as per Ext.P11 mahazar, they proceeded to the place of occurrence and travelled along the pathway, as led by the accused, running through the side of Hamzakoya's house and reached Vattakinar- Beypore Public Road. Thereafter they passed through the side of railway overbridge to reach Thiruvachira Sreekrishna Temple pond. On a reasonable estimation, they must have reached at the pond at about 11.30 a.m. When PW38 came to know that the accused could not swim, he contacted the Station House Officer, Coastal Police Station, Chaliyam seeking the help of PW13, Special Marine Guard. In cross-examination, PW38 clearly deposed that he reached by the side of the pond at 11.20 a.m. PW38 deposed emphatically that before reaching near the pond, he did not contact the Coastal Police Station. This version is diametrically Crl.Appeal No.48 of 2015 & 48 Crl.M.C.No.6231 of 2014 opposite to the deposition of PW13, who said that he reached near the pond at 11.30 a.m. as he got a request at 8.00 a.m. on 12.09.2013 to effect recovery of a weapon by diving into the pond. It is the version of PW13 that he came along with the Sub Inspector of Police, Coastal Police Station, Chaliyam. Coastal Police Station is on the other bank of Beypore River. Regarding the manner in which PW13's presence was procured and time at which arrangements were made, PWs 13 and 38 materially differ. This is what is the prosecution case regarding recovery of MO13.

54. Smt.Ambikadevi strongly contended that the trial court had gone wrong completely in observing that blade of MO13, which was lying in water for 14 months, could have gathered more rust than seen at the time of recovery. It is the prosecution case that blade of MO13 chopper was immersed in sludge beneath the pond. Trial court therefore opined that by efflux of 14 months, blade of MO13 would have accumulated more rust. Trial court placed reliance on the observation by the Chemical Examiner on Ext.P26 report of analysis that item No.4 knife (chopper), which was later marked as MO13, tested positive for blood, but its origin could not be ascertained due to insufficient quantity of blood. This also was considered as a reason by the trial court to find that MO13 could not have been used for assault. It is true that recovery of MO13 at the instance of accused is not believably proved through the testimony of Crl.Appeal No.48 of 2015 & 49 Crl.M.C.No.6231 of 2014 PWs 38 and 13 taken together. PW13 admitted that bottom portion of the pond was full of sludge. He did not remember whether blade of MO13 was rusted. Independent witness PW14 deposed that MO13 was cleaned after its recovery. If at all MO13 was used, cleaning of the weapon, as deposed to by PW14, could have been the reason for the absence of human blood. Learned Prosecutor strongly contended that Ext.P49 property list and Ext.P50 forwarding note pertaining to MO13 chopper would clearly show its dimension and the fact that there was no cleaning of MO13 as deposed to by PW14. These documents would show that MO13 was produced before the court and forwarded for analysis in the same condition as it was recovered from the pond. Even if we accept this prosecution case, we find inherent improbability in proving its recovery on the basis of confession made by the accused while in custody and it should enure to the benefit of the accused.

55. Learned Prosecutor seriously commented on certain observations made by the trial Judge regarding the presence of hydrogen sulphide produced from the sludge/silt/slurry inside the pond. Although hydrogen sulphide could be present naturally in water, often as a result of action of sulphate reducing bacteria, there is no material available from the case records to infer such a chemical process. Another observation by the learned trial Judge that rusting results in formation of ferrous oxides (sic, it could be ferric oxide) is also challenged by the learned Crl.Appeal No.48 of 2015 & 50 Crl.M.C.No.6231 of 2014 Prosecutor saying that presence of oxygen under water will be less than that in the atmosphere and therefore, iron piece exposed to a damp atmosphere will get rusted faster than the one fully immersed in water. However, no expert evidence had been brought out in this regard.

56. Yet another reason pointed out by the learned trial Judge to disbelieve recovery of MO13, buried in sludge for 14 months, is the absence of copper sulphate deposit on the brass ring between its handle and blade portion. Observations in paragraph 63 of the trial court's judgment were actually without any reference to any standard text book on Chemistry. As per the World Book Encyclopedia (1997 edition, Vol.4) physical properties of copper make the metal valuable to industry. These properties include (1) conductivity, (2) malleability, (3) ductility and (4) resistance to corrosion. Copper sulphate is obtained by reaction of copper and sulphuric acid and it is a brilliant blue salt which readily dissolves in water. Solubility of copper sulphate is temperature-dependent and increase in the water temperature encourages faster dissolution of the salt. The observation by the trial court that absence of copper sulphate on the brass part of MO13 is an indication that it was immersed in water shortly before its recovery cannot be accepted as it is against basic scientific principles.

57. Moreover, brass, according to World Book Encyclopedia (1997 edition, Vol.2) is an alloy of copper and zink. Brass is widely used Crl.Appeal No.48 of 2015 & 51 Crl.M.C.No.6231 of 2014 in making electric fixtures, inexpensive jewellery and metal decorations. In our country, it is used for making utensils also. According to the Encyclopedia, the amount of copper used in brass ranges from 55% to more than 95%. Colour and properties of brass vary with its composition. The book further says that it is used for making marine hardware, screw, warships, etc. Therefore, once a stable alloy of copper and zink in the form of brass is formed, it may be difficult to notice presence of copper sulphate or other oxides of copper even if it is immersed in water. We are of the considered opinion that the court below should not have drawn any inference about scientific facts without referring to any authority on the subject or without any reliable expert evidence on record. We remind all concerned that personal predilections of judges shall not be the basis for deciding cases.

58. In order to nail down the accused, prosecution relied on recovery of MOs 8 to 12 as per Ext.P11 mahazar. This is proved through PW12, an independent witness and PW38, the investigating officer. PW12 was also working in the same hotel at the material time and he had acquaintance with the accused. According to his testimony, on 12.09.2013, PW38 and police party brought the accused to the hotel at about 10 a.m. They went to a room where the accused resided at the material time. PW12 and another witness to Ext.P11 also went along with them. They saw the accused handing over a shirt and a purse to the Crl.Appeal No.48 of 2015 & 52 Crl.M.C.No.6231 of 2014 investigating officer. It was taken out from an open shelf in the room. In MO9 purse, a copy of identity card of the deceased (MO10), a gold loan receipt in the name of the deceased (MO11) and another receipt MO12 were kept. Shirt handed over by the accused has been marked as MO8. In cross-examination, PW12 admitted that he had not seen the accused exclusively using the shelf from where recovery was effected. He further deposed that the shelf was accessible to every one. On a perusal of Ext.P11, it will be clear that by no stretch of reasoning it can be said that the shelf, from where the aforementioned materials were recovered, was accessible to the accused alone. Admittedly there were other workers residing in the hotel. Moreover, recovery was effected after 14 months of the incident. Evidence is available to show that the accused had left the place sometime after the incident.

59. Apart from the above infirmities, learned defence counsel pointed out another glaring lacuna in the prosecution case that identity of MO9 purse itself seriously disputed. As per Ext.P11, it can be seen that the purse had an inscription "Aiswarya Jewellers, M.M.Ali Road, Kozhikode". It was black in colour. It is to be remembered that with the same inscriptions another purse was recovered in the first round of investigation by PW35 from a locked almirah in the deceased's room. According to the testimony of PW35 and the records, it can be seen that a similar purse was handed over by PW35 to the deceased's daughter. Crl.Appeal No.48 of 2015 & 53 Crl.M.C.No.6231 of 2014 Learned defence counsel would point out a probability of the investigating officer planting MO9 purse with MOs.10 to 12 inside the same in the shelf. There is no satisfactory explanation by any of the material prosecution witnesses to dispel this doubt. Certainly the benefit of doubt should go to the accused.

60. As pointed out by the trial court, another important aspect projected by the prosecution to implicate the accused is that he had a tendency to commit theft of money and other valuable articles. In order to buttress this point, PWs.9, 10 and 16 were examined. We have already discussed the evidence of PWs.9 and 10. PW16 is the fostermother of the accused. She deposed that during childhood the accused had the habit of stealing and that was why he left PW16's home. Even if we accept this version put forward by the prosecution, we find no reason to convict the accused for murdering Sundari Amma. Court below relying on Section 54 of the Indian Evidence Act correctly found that testimony of PWs.9, 10 and 16 are irrelevant when the prosecution has no case that bad character of the accused was a fact in issue. Trial court also considered the definite case of the accused that on 21.07.2012 during night he was working in City Light Hotel and he had never gone out. PW9 admitted the presence of accused upto 11.30 p.m. Testimony of PW11 would show that the accused was present at 2.00 a.m. on 22.07.2012. This version of PW11 has not been challenged by the prosecution. PW35 Crl.Appeal No.48 of 2015 & 54 Crl.M.C.No.6231 of 2014 deposed that during his investigation, he did not notice any temporary absence of the accused from the hotel in the night on 21.07.2012.

61. Trial court relying on Exts.P4, P8 and P9 observation mahazars came to a conclusion that it was impossible for a person, after committing the crime, to go to the temple pond, dispose of MO13 and after taking bath, return to the hotel within a short time. Of course, there is dispute regarding the actual time gap between the accused's missing from the hotel and reappearance. Even if we accept the prosecution case that he went out of the hotel at 11.30 p.m. on 20.07.2012 and reappeared at 2.00 a.m. on 21.07.2012, it is difficult for us to find that the accused would have committed the crime since there is no exact evidence regarding the distance between the places said to have been traversed by the accused.

62. Needless to mention, benefit of any reasonable doubt in a criminal case should go to the accused. As mentioned above, this is a case solely resting on circumstantial evidence. Guidelines as to when the circumstantial evidence would sustain a criminal charge have been set out in the case of Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622) , wherein five golden principles termed as "Panchsheel" by the apex Court have been enumerated as under:

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) the facts so established should be consistent Crl.Appeal No.48 of 2015 & 55 Crl.M.C.No.6231 of 2014 only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

As this decision has been repeatedly followed in many other cases, we do not intend to burden this judgment with all the precedents on the point. The principles relating to appreciation of circumstantial evidence in a case remain the same, though repeated in different words later.

63. Testimony of PW15, the shopowner from whom MO1 plastic rope, found hanging from the ceiling of Sundari Amma's house, was purchased, will not improve the prosecution case. Similarly, testimony of PW6, the grand daughter of deceased and other prosecution witnesses will have no bearing on the guilt of accused. On an evaluation of the entire evidence, we are unable to find that appreciation of evidence by the trial court was improper and its findings are perverse. We find that the circumstances from which a conclusion of guilt of the accused has to be drawn have not been fully established. Facts established in this case Crl.Appeal No.48 of 2015 & 56 Crl.M.C.No.6231 of 2014 cannot be said to be consistent with the hypothesis of guilt of the accused. Most of the circumstances borne out from prosecution evidence are not of a conclusive nature and they do not exclude every possibility of his innocence. Chain of evidence is not complete and it shows many cleavages on vital aspects. Therefore, we find the trial court is legally justified in coming to a conclusion that the prosecution failed to establish guilt of the accused.

64. Learned Public Prosecutor relying on State of Karnataka v. K.Yarappa Reddy (AIR 2000 SC 185) and Abu Thakir and others v. State Rep.by Inspector of Police, Tamil Nadu (AIR 2010 SC 2119) contended that this Court shall not confirm acquittal of the accused merely on the finding that the investigation was faulty. To buttress this contention paragraph 19 in Yarappa Reddy's case was relied on. It reads as follows:

"19. But can the above finding (that the Station House Diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously. It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the Crl.Appeal No.48 of 2015 & 57 Crl.M.C.No.6231 of 2014 probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to the level of the Investigating Officer ruling the roost. The Court must have predominance and pre-eminence in criminal trials over the action taken by Investigating Officers. Criminal justice should not be made the casualty for the wrongs committed by the Investigating Officers in the case. In other words, if the Court is convinced that the testimony of a witness to the occurrence is true the Court is free to act on it albeit Investigating Officer's suspicious role in the case."

Although we cannot have any dispute regarding the above proposition, we find it difficult to accept the prosecution case not only because of the faulty investigation, but also noticing the shaky and undependable nature of evidence adduced by the witnesses to support the prosecution case. For the aforementioned reasons, we find no valid reason to interfere with the order of acquittal passed by the learned trial Judge in favour of the accused. Hence we confirm the same.

Point No.V

65. Contentions urged by the State in its appeal and the petitioner in Crl.M.C.No.6231 of 2014 necessitated to raise this question. PW38, the investigating officer, is the petitioner in the aforementioned Crl.M.C. While acquitting the accused, learned Additional Sessions Judge ordered to issue notices to PWs 35 and 38 directing them to show cause Crl.Appeal No.48 of 2015 & 58 Crl.M.C.No.6231 of 2014 why action under Section 340 Cr.P.C. should not be initiated. Insofar as PW35 is concerned, trial court thought of initiating a prosecution under Section 201 IPC. PW38 was called up to explain why criminal prosecution under Section 194 IPC should not be initiated. Besides, a copy of the judgment was ordered to be sent to the Director General of Police through the Registrar of this Court to initiate appropriate departmental proceedings against PWs 35 and 38.

66. In the appeal, the State has contended that since the acquittal itself is bad in law, all the observations by the trial Judge against the investigating officers are without any factual or legal basis. According to the State, the above findings by the trial Judge are made without any material on record and purely on surmises and conjectures.

67. PW38 in his Crl.M.C. vehementally challenged the above directions by the trial court contending that no adverse remarks against him could have been made in the judgment without affording him an opportunity of being heard. To reinforce this contention, a catena of decisions of the apex Court is relied on. According to him, the adverse remarks were made flouting the principles of natural justice. If we accept PW38's version, certainly PW35 also should be benefited out of that decision notwithstanding that he did not specifically challenge the trial judge's directions. It is because both of them stand on the same footing.

68. Let us recapitulate the law on this subject. Apex Court in Crl.Appeal No.48 of 2015 & 59 Crl.M.C.No.6231 of 2014 State of U.P. v. Mohoammad Naim (AIR 1964 SC 703) enunciated the principles to be borne in mind before making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them. We quote the following passage from paragraph 10:

" ......... If there is one principle of cardinal importance in the administration of justice, it is this : the proper freedom and independence of Judges and Magistrate must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this court. At the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair-play and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should Crl.Appeal No.48 of 2015 & 60 Crl.M.C.No.6231 of 2014 not normally depart from sobriety, moderation and reserve."

69. the above ratio has been followed in R.K.Lakshmanan v. A.K.Srinivasan (AIR 1975 SC 1741). Later the same principle was restated in S.K.Viswambaran v. F.Koyakunju and others (AIR 1987 SC 1436).

70. A three Judge Bench of the Supreme Court in R.K.Lakshmanan's case (supra) considered the tests to be applied in considering expunction of disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them. In paragraph 12, relying on Mohoammad Naim's case (supra) the following principles are stated:

"12. The tests to be applied in considering the expunction of disparaging remarks against persons or authorities whose conduct comes in for consideration before courts of law in cases to be decided by them, were neatly summed up by this Court, speaking through S. K. Das, J. in State of U. P. v. Muhammad Nain, (1964) 2 SCR 363 at p. 374 = (AIR 1964 SC 703 at p. 707 = 1964-1 Cri LJ 549 at p. 554) thus:

"(i) Whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself;

(ii) Whether there is evidence on record bearing on that conduct justifying the remarks: and

(iii) Whether it is necessary for the decision of the case, Crl.Appeal No.48 of 2015 & 61 Crl.M.C.No.6231 of 2014 as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve."

71. There are many other decisions by the apex Court expressing the same view. Recently the Supreme Court in State (Govt. of NCT of Delhi) v. Pankaj Chaudhary and others (AIR 2018 SC 5412) reiterated the same principles relying on earlier decisions. Hence it is amply clear that the trial court has no authority to pass disparaging remarks against PWs 35 and 38 affecting their personal character and efficiency as investigating officers without complying with the basic principles of natural justice. As pointed out by the learned counsel for PW38, no opportunity was given to him either at the time when he deposed or at any time before pronouncing the judgment to explain so called grave irregularities and unpardonable laches perceived by the trial Judge. Therefore, basis of the findings by the trial court that PWs 35 and 38 are liable to be proceeded against is legally unsustainable. In modest words we express our resentment to such impulsive reactions on the part of Judicial Officers, especially those who hold the post of Sessions Judges.

72. Another aspect to be considered is that Section 340 Cr.P.C. is intended to ascertain whether any offence affecting administration of justice has been committed in relation to any document produced or Crl.Appeal No.48 of 2015 & 62 Crl.M.C.No.6231 of 2014 given in evidence in court during the time when the document or evidence was in custodia legis. It is to be ascertained whether it will be expedient in the interest of justice to take such action as required under Section 340 Cr.P.C. This provision is interlinked with Section 195 Cr.P.C. which deals with prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. Object of Section 195 Cr.P.C. is to protect persons from being vexatiously prosecuted upon inadequate materials or insufficient grounds by persons actuated by malice or ill will. On a reading of the impugned judgment, it can be seen that the court intended to file a complaint against PW38 under Section 194 IPC, which is an offence for which a complaint in writing by the court is necessary for taking cognizance. On a careful reading of Section 340 Cr.P.C., it can be seen that the court can act suo motu if it is of opinion that it is expedient in the interest of justice that an enquiry should made into any offence referred to in Clause (b) of Sub-section (1) of Section 195 Cr.P.C., which appears to have been committed in or in relation to a proceeding in that court in respect of a document produced or given in evidence in a proceeding in that court, such court may, after such preliminary enquiry, if any, take the steps prescribed in the Section.

73. To our surprise, on a careful reading of the impugned judgment in full, we find no definite finding entered by the trial court that Crl.Appeal No.48 of 2015 & 63 Crl.M.C.No.6231 of 2014 PW38 has fabricated false evidence intending thereby to cause some person to be convicted for a capital offence. At the most, the trial Judge might have expressed his resentment over the procedure adopted by PW38 and visualized a possibility of falsely creating MO13 to implicate the accused. There is no definite finding entered by the trial Judge that PW38 was responsible for falsely creating MO13. Fundamental reason to initiate a prosecution under Section 194 IPC has not been set out in the judgment.

74. Likewise, the reasoning by the trial Judge to proceed against PW35 under Section 201 Cr.P.C. is also very flimsy. Section 201 IPC deals with causing disappearance of evidence of offence or giving false information to screen the offender. Nowhere in the judgment the trial Judge noted that PW35, during his initial investigation, made any attempt to screen the offender. Not only that, none of the observations by the trial Judge would show that PW35 helped anyone to cause disappearance of evidence of offence. Complaint against PW35 raised by the trial Judge is that he recklessly or unmindfully handed over a black purse to the daughter of the deceased from the crime scene. It is also observed in the judgment that no reliable material was produced by him to establish that fact. Learned trial Judge assumed that said black purse might not have been handed over to the deceased's daughter and it could have been used to plant MOs 10 to 12 inside and caused to be recovered as MO9 in Crl.Appeal No.48 of 2015 & 64 Crl.M.C.No.6231 of 2014 the presence of the accused. All these assumptions are without any factual foundation. There is no logic even in assuming that MO9 purse had any connection with the offence and as it was recovered from a closed almirah from the crime scene, it cannot be said to be a material evidence of commission of murder. Fundamental requirements to attract Section 201 IPC have not been satisfied. Further, there is no reason to find that PWs 35 and 38 in collusion with one another used the same black purse at a later point as MO9. All these assumptions by the trial court are without any factual basis. Therefore we find that the entire directions in paragraph 77 of the trial court's judgment to proceed against PWs 35 and 38 are legally unsound and therefore, liable to be set aside.

75. Sobriety is one of the most important and non-negotiable quality of a Judge. A Judge's decision to initiate penal action against persons or authorities whose conduct comes into consideration in a case will be interpreted as an impulsive action, unsuitable for a judicious and sagacious mind expected of a Judge, when it was taken devoid of any factual or legal foundation and actuated by personal predilections. We, therefore, find the directions issued by the trial Judge to take action against PWs 35 and 38 by way of initiating criminal prosecution and departmental action are devoid of any legal merit. Hence all the directions are set aside and the disparaging remarks against them in the entire judgment would stand expunged.

Crl.Appeal No.48 of 2015

& 65 Crl.M.C.No.6231 of 2014

Point No.VI

76. Another important aspect to be considered in this case is whether the trial court has jurisdiction to direct the State Government to pay compensation to a tune of `1,00,000/- to the accused and to recover the amount from PW38. Fact that a Sessions Court is the creation of a statute, viz., Cr.P.C., cannot be forgotten. Section 9 Cr.P.C. empowers the State Government to establish a Court of Session for every Sessions Division. Since Court of Session is a creature of Cr.P.C., powers bestowed on it should be searched out from the statute itself.

77. Section 250 Cr.P.C. is the only provision authorising a Magistrate to pay compensation to an accused, that too upto such amount not exceeding the amount of fine he is empowered to impose. Procedure therefor are mentioned in the above Section. It is patently clear that it applies only to cases instituted otherwise than on a police report. No doubt, it does not apply to Sessions Cases.

78. The matter under consideration being a Sessions Case, it goes without saying that responsibility of prosecuting such a case is only upon the State. We find no provision in the Cr.P.C. enabling a Sessions Judge to direct payment of compensation to the accused. Section 357 Cr.P.C. empowering a criminal court to order compensation also does not apply to such a situation. Apparently the provisions in Section 357 Cr.P.C. will not be applicable for payment of compensation to an accused. Crl.Appeal No.48 of 2015 & 66 Crl.M.C.No.6231 of 2014 Compensation thereunder can be paid to the person who has suffered any loss or injury by reason of act for which the accused has been tried and sentenced. This aspect itself would make it clear that accused persons are excluded from the category of beneficiaries under this provision.

79. Section 358 Cr.P.C dealing with compensation to persons groundlessly arrested does not authorise a Sessions Judge to award compensation exceeding `1,000/-. This reality was taken note of by the trial Judge. We are astonished to find no mention of any legal reason in the trial court's judgment for granting a sum of `1,00,000/- as compensation to the accused.

80. A person aggrieved of illegal arrest, detention and groundless prosecution, etc. is not without any remedy in the domain of the law of tort. In other words, such a person is not remediless under the civil law. That apart, he may take recourse to the public law remedy in the form of writ petitions before constitutional courts. When there is any contravention of fundamental rights guaranteed by the Constitution, especially under Article 21, relating to life or personal liberty, the aggrieved person can claim exemplary damages in proceedings under Article 32 of the Constitution before the Supreme Court or under Article 226 before the High Courts for the established infringement of his basic human rights.

Crl.Appeal No.48 of 2015

& 67 Crl.M.C.No.6231 of 2014

81. Learned Sessions Judge has not considered or mentioned any statutory provision conferring a jurisdiction on him to award exemplary damages/compensation for the alleged illegal arrest, detention and trial of the accused. Indisputably, the learned Sessions Judge jurisdictionally could not have invoked the extraordinary remedies available to the constitutional courts.

82. Law on this point is well settled. We may refer to a couple of decisions from a long line to fortify our reasoning. In Nilabati Behera v. State of Orissa ((1993) 2 SCC 746) the Supreme Court enunciated the following principles:

"Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply, even though it may be available as a defence in private law in an action based on tort.

Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its contravention.

A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a Crl.Appeal No.48 of 2015 & 68 Crl.M.C.No.6231 of 2014 claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution."

This decision was later referred to by a three Judge Bench in Sube Singh v. State of Haryana (AIR 2006 SC 1117). Thereafter the apex Court in Mehmood Nayyar Azam v. State of Chhattisgarh (AIR 2012 (2) SC 2573) in paragraphs 41 and 43 laid down the following propositions:

"When there is contravention of human rights, the inherent concern as envisaged in Art. 21 springs to life and enables the citizen to seek relief by taking recourse to public law remedy. The relief of monetary compensation, as exemplary damages, granted in Crl.Appeal No.48 of 2015 & 69 Crl.M.C.No.6231 of 2014 proceedings under Art. 32 by the Supreme Court or under Art. 226 by the High Courts for established infringement of the indefeasible right guaranteed under Art. 21 is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the Court moulds the relief by granting 'compensation' in proceedings under Art. 32 or 226 seeking enforcement or protection of fundamental rights it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, by not protecting the fundamental right of the citizen. The compensation is in the nature of 'exemplary damages' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a Court of competent jurisdiction or/and prosecute the offender Crl.Appeal No.48 of 2015 & 70 Crl.M.C.No.6231 of 2014 under the penal law."

83. It is to be borne in mind the quantification of exemplary damages under public law remedies will be done on the materials placed before the constitutional courts. In our view, it may not represent the actual loss or damage suffered by the victim in all cases. In a case if the victim has suffered more loss or damage than the estimation of compensation under a public law remedy, his right to seek recovery of the actual amount of compensation through an action under the private law remedy cannot be said to be barred. Of course, the earlier payment received under the public law remedy should be regarded in the subsequent civil action.

84. Viewing from any angle, we do not find any legal justification for approving the direction of the Sessions Judge to the State to pay compensation to the accused and then to recover it from PW38. In our considered opinion, the trial Judge has exceeded his jurisdiction.

85. Needless to repeat that a Judge must be proactive and alive to the facts and circumstances in each case coming up for adjudication before him. He must master the facts in each case and find out the correct principles of law to be applied for deciding the case. His yearning to do justice to the parties will always be appreciated. It is a well settled principle that a Judge deciding a case is not a mute spectator. These propositions are squarely applicable in a criminal trial too, especially when the offence is of a serious nature.

Crl.Appeal No.48 of 2015

& 71 Crl.M.C.No.6231 of 2014

86. Indisputably, the lifeblood of justice administration system is embedded in the principles relating to jurisdiction of courts. Axiomatic is the legal principle that a judgment rendered or order passed by a court usurping a jurisdiction not vested in it is a nullity. It is always regarded as an incurable defect, if a court granted any relief without an inherent jurisdiction. An ardent desire to do justice, for which the courts exist, can never be a justification for passing judgments or orders, or issuing any directions in the judgments or orders so passed, intending to bind the parties, if it was done completely disregarding the lack of inherent jurisdiction or otherwise known as subject matter jurisdiction. Judicial wisdom and sobriety should be exercised by every Judge to avoid any transgression of the limits of jurisdiction and that is not only to maintain judicial discipline, but to keep up dignity and reputation of the system. The impugned directions are issued by the learned Sessions Judge without any tinge of authority. Therefore, we have no hesitation to set aside the directions. Point decided accordingly.

Point No.VII

87. Additional Sessions Judge, while disposing of the case, directed the Superintendent of Police, Crime Branch to conduct further investigation to nab the real accused and in order to issue such a direction, his power under Section 173(8) Cr.P.C. had been invoked. Section 173(8) Cr.P.C. reads thus:

Crl.Appeal No.48 of 2015

& 72 Crl.M.C.No.6231 of 2014

"(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2)."

88. Object and reason for incorporating Section 173(8) Cr.P.C. is reflected in 41st Report of the Law Commission. Relevant portion of the Report is quoted hereunder:

"A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the Magistrate concerned. It appears, however, that courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case against and cannot reopen the investigation. This view places a hindrance in the way of the investigating agency, which can be unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a Crl.Appeal No.48 of 2015 & 73 Crl.M.C.No.6231 of 2014 report to the Magistrate. Copies concerning the fresh material must of course be furnished to the accused."

89. Even at a time when Section 173(8) Cr.P.C. was not in the statute book, courts in the country were of view that in given circumstances, police officer should be allowed to make further investigation after Magistrates have taken cognizance of offences.

90. Question to be decided here is, whether the Sessions Judge could have invoked the above provision after disposal of the case? True, conflicting judicial opinions could be seen regarding the time at which the power under Section 173(8) Cr.P.C. could be invoked by a court. Apex Court in Randhir Singh Rana v. State (Delhi Administration)((1997) 1 SCC 361) held that after filing a report under Section 173(2) Cr.P.C., after the Magistrate has taken cognizance and the accused entered appearance in pursuance of the process issued by the court, Magistrate as his own cannot order further investigation. Magistrate or Subordinate Court can direct further investigation both at pre and post cognizance stage, if such further investigation is considered necessary for meeting the ends of justice. But, reinvestigation is barred by law. Only higher courts in the exercise of constitutional and inherent power could order reinvestigation or de novo investigation in exceptional and rare cases, obviously to meet the ends of justice. Certainly, the State can do so in the exercise of its sovereign power.

91. Learned Sessions Judge relied on Abdul Latheef v. State of Crl.Appeal No.48 of 2015 & 74 Crl.M.C.No.6231 of 2014 Kerala (ILR 2014 (4) Kerala 44) to find his power to direct the investigating agency to conduct further investigation under Section 173(8) Cr.P.C. in a case even after taking cognizance on the final report. Above proposition became doubtful in the light of a pronouncement by two learned Judges in Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel and others (AIR 2017 SC 774), where it has been held by the apex Court that after taking cognizance, a Magistrate is not empowered to direct further investigation suo motu. Obviously, the observations therein would apply to a Sessions Judge as well. Following are the propositions laid down in Amrutbhai Shambhubhai Patel's case:

"47. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. At that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, Crl.Appeal No.48 of 2015 & 75 Crl.M.C.No.6231 of 2014 in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand."

92. We came across a recent decision rendered by the apex Court in Vinubhai Haribhai Malaviya and others v. State of Gujarat and another (AIR 2019 SC 5233) wherein three learned Judges, after considering various decisions relating to Section 173(8) Cr.P.C., have held that some decisions rendered by two Judge Benches, including that in Amrutbhai Shambhubhai Patel's case (supra) decided to the extent contrary to the principles in Vinubhai Haribhai Malaviya's case, stood overruled.

93. The legal question raised in Vinubhai Haribhai Malaviya's case is whether, after a charge sheet is filed by the police, the Magistrate has the power to order further investigation and if so, upto what stage of the criminal proceedings? Facts therein would show that after investigation, the police filed a final report against the accused before the learned Magistrate concerned and he, on taking cognizance, issued summons to the accused. Pursuant to the summons, the accused entered appearance and filed two applications; one for further investigation under Section 173(8) Cr.P.C. and other claiming discharge. Both the applications were dismissed by the learned Magistrate after hearing the parties. Dismissal of the application under Section 173(8) Crl.Appeal No.48 of 2015 & 76 Crl.M.C.No.6231 of 2014 Cr.P.C. was challenged in a revision before a Sessions Judge and after hearing the parties, it was allowed. The matter then was taken before the High Court. That court came to a conclusion that the Magistrate does not possess any power to order further investigation after taking cognizance on a final report. That finding was challenged before the Supreme Court.

94. Various decisions, both supporting and opposing the High Court judgment, were cited before the court. Taking note of the observations in Vinay Tyagi v. Irshad Ali and others ((2013) 5 SCC

762) and Bhagwant Singh v. Commissioner of Police((1985) 2 SCC

537), the court observed in paragraph 38 thus:

"There is no good reason given by the Court in these decisions as to why a Magistrate's powers to order further investigation would suddenly cease upon process being issued, and an accused appearing before the Magistrate, while concomitantly, the power of the police to further investigate the offence continues right till the stage the trial commences. Such a view would not accord with the earlier judgments of this Court, in particular, Sakiri (AIR 2008 SC 907) (supra), Samaj Parivartan Samudaya (AIR 2012 SC 2326) (supra), Vinay Tyagi (2013 AIR SCW 220) (supra), and Hardeep Singh (AIR 2014 SC 1400) (supra); Hardeep Singh (supra) having clearly held that a criminal trial does not begin after cognizance is taken, but only after charges are framed. What is not given any importance at all in the recent judgments of this Court is Article 21 of the Crl.Appeal No.48 of 2015 & 77 Crl.M.C.No.6231 of 2014 Constitution and the fact that the Article demands no less than a fair and just investigation. To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases mid-way through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding, as was Crl.Appeal No.48 of 2015 & 78 Crl.M.C.No.6231 of 2014 held in Hasanbhai Valibhai Qureshi (AIR 2004 SC 2078) (supra). Therefore, to the extent that the judgments in Amrutbhai Shambubhai Patel (AIR 2017 SC 774) (supra), Athul Rao (AIR 2017 SC 4021) (supra) and Bikash Ranjan Rout (AIR 2019 SC 2002) (supra) have held to the contrary, they stand overruled. Needless to add, Randhir Singh Rana v. State (Delhi Administration) (1997) 1 SCC 361 : (AIR 1997 SC 639) and Reeta Nag v. State of West Bengal and Ors. (2009) 9 SCC 129 :

(2010 AIR SCW 476) also stand overruled."

(underline supplied by us)

95. Finally, the Supreme Court set aside the impugned High Court judgment insofar as it stated that post-cognizance the Magistrate is denuded of power to order further investigation. Law declared by the court in the above decision is that power under Section 173(8) Cr.P.C. can be invoked by the Magistrate before the trial actually commenced. Indisputably, trial in a Sessions Case commences by framing charges.

96. However, in this case, the fact situation is completely different. Learned Additional Sessions Judge issued a direction to the police to conduct further investigation at the time of disposal of the case after a full-fledged trial. The principles in Vinubhai Haribhai Malaviya's case will not enable the trial court to exercise its power under Section 173(8) Cr.P.C. at that stage.

97. On understanding the law as above, we find no justification for sustaining the direction given by the trial Judge to the Superintendent Crl.Appeal No.48 of 2015 & 79 Crl.M.C.No.6231 of 2014 of Police, Crime Branch, Kozhikode to conduct further investigation by invoking power under Section 173(8) Cr.P.C. Hence the said direction is also set aside.

In the result, I. Crl.Appeal No.48 of 2015 is dismissed confirming acquittal of the accused in Sessions Case No.508 of 2014 before the Special Additional Sessions Judge (Marad Cases), Kozhikode.

II. Crl.M.C.No.6231 of 2014 is allowed. Directions issued by the trial Judge to initiate criminal prosecution and departmental action against the investigating officers, viz., PWs 35 and 38, are hereby set aside. Adverse remarks and derisive comments against them will stand expunged.

All pending applications will stand closed.

A.HARIPRASAD, JUDGE.

N.ANIL KUMAR, JUDGE.

cks Crl.Appeal No.48 of 2015 & 80 Crl.M.C.No.6231 of 2014 APPENDIX OF Crl.MC 6231/2014 PETITIONER'S/S EXHIBITS:

ANNEXURE A: CERTIFIED COPY OF JUDGMENT IN S.C.NO.508/2014 OF SESSIONS COURT, KOZHIKODE DATED 14.10.2014.

ANNEXURE B: TRUE COPY OF DEPOSITION OF PW31.

ANNEXURE C: TRUE COPY OF DEPOSITION OF PW34.

ANNEXURE D: TRUE COPY OF DEPOSITION OF PW13 ANNEXURE E: TRUE COPY OF DEPOSITION OF PW14.

ANNEXURE F: TRUE COPY OF DEPOSITION OF PW36.

ANNEXURE G: TRUE COPY OF POST MORTEM REPORT DATED 21.7.2012.

ANNEXURE H: TRUE COPY OF DEPOSITION OF PW21.

ANNEXURE I: TRUE COPYOF DEPOSITION OF PW12.

ANNEXURE J: TRUE COPY OF DEPOSITION OF PW19.

ANNEXURE K: TRUE COPY OF DEPOSITION OF PW20.

ANNEXURE L: TRUE COPY OF DEPOSITION OF PW15.

ANNEXURE M: TRUE COPY OF DEPOSITION OF PW1.

ANNEXURE N: TRUE COPY OF DEPOSITION OF PW2.

ANNEXURE O: TRUE COPY OF DEPOSITION OF PETITIONER.

RESPONDENTS'S EXHIBITS:         NIL

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