Kerala High Court
Yohannan vs State Of Kerala on 25 February, 2020
Equivalent citations: AIRONLINE 2020 KER 995
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
TUESDAY, THE 25TH DAY OF FEBRUARY 2020/6TH PHALGUNA, 1941
CRA(V).No.598 OF 2015
AGAINST THE JUDGMENT IN SC 30/2012 DATED 29-11-2013 OF
ADDITIONAL SESSIONS COURT, OTTAPALAM
CRIME NO.562/2007 OF Mannarkkad Police Station, Palakkad
APPELLANT/VICTIM:
YOHANNAN
S/O UNNOONI,AGED 82 YEARS,MURIYAYIKAL
HOUSE,L.I.C.ROAD,NILAMBUR P.O,MALAPPURAM
DISTRICT
BY ADVS.
SRI.K.GOPALAKRISHNA KURUP (SR.)
SRI.ABHISHEK KURIAN
RESPONDENTS/STATE & ACCUSED:
1 STATE OF KERALA
REP.BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA ,ERNAKULAM-31
2 SURESH BABU @BABU AGED 33 YEARS
S/O .NAVUNNI,THADIKKAMARE
VEEDU,THATHENGALAM,KAITHACHIRA,
MANNARKKAD-678582
3 MUHAMMED SADIQ ,AGED 33 YEARS,
POOLAMANNIL VEEDU ,KALLADI
COLLEGE(P.O),MANNARKKAD-678582
CRA(V) No.598/15
-:2:-
*4 ABDUL MUTHALEEB,AGED 33 YEARS
S/O MUHAMMED,NEELLIKKAVATTAYIL
VEEDU,AKKIPADAM,PAYYANEDAM,MANNARKKAD-678582
(*DIED) [AS PER ORDER DATED 25/2/2020, THE 4TH
RESPONDENT IS RECORDED DEAD]
5 SHABEER ALI, AGED 31 YEARS,
S/O MUHAMMED,ARAKKUPARAMBIL VEEDU,
MES KALLADI COLLEGE(P.O),MANNARKKAD-678582
6 SIJU JOSEPH, AGED 35 YEARS,
S/O JOSEPH @VAVACHAN,KODHIKUDIYIL
VEEDU,PAYYANEDAM,VELLAPPADAM,
MANNARKKAD-678582
R2 BY ADV. T.B.HOOD
R3, R5 BY ADV. SAJAN VARGHEESE K.
R6 BY ADV. S.RAJEEV
SR.P.P-SRI. ALEX. M. THOMBRA
THIS CRL.A BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN
FINALLY HEARD ON 18-09-2019, THE COURT ON 25-02-2020
DELIVERED THE FOLLOWING:
CRA(V) No.598/15
-:3:-
JUDGMENT
Dated this the 25th day of February, 2020 Shaffique, J.
Father of John Mathew, the deceased, has preferred this appeal challenging the acquittal passed by the Additional Sessions Court, Palakkad Division as per judgment dated 29/11/2013 in S.C. No. 30/2012 arising out of Crime No. 562/2007 of Mannarkkad Police Station. The accused were charged for the offence under Sections 449, 396 and 302 of I.P.C. and they were acquitted under Section 235 of Cr.P.C..
2. Prosecution case is as follows:
The prosecution case is that John Mathew who was normally residing in his estate house used to go to his ancestral home at Nilambur every weekend. Accused No.1 attempted to outrage the modesty of his elder brother's wife Sreeja (PW6). John Mathew interfered in the matter and was a witness to the incident on account of which first accused had animosity against him. The first accused misrepresented accused 2 to 5 that John Mathew was having an amount of `14 lakhs to purchase a property. All the CRA(V) No.598/15 -:4:- accused assembled on 16/8/2007 and by midnight, they went to the house of John Mathew. John Mathew opened the door and on seeing the accused, he shut the door. The accused broke open the door. A2 smothered John Mathew with a towel. A1 and A5 tied both of his legs with a lungi and A3 and A4 tied both of his hands with another bath towel. A1 strangled the neck of John Mathew with a blanket and thereby committed murder at about 1.30 a.m on 16/8/2007. They stole a sum of `15,000/-, a mobile phone, purse, pan card, election identity card, torch etc.
3. Originally, the case was taken on file as CP No.143/2009 on the file of Judicial First Class Magistrate, Mannarkkad after having complied with the procedural formalities prescribed u/s 207 Cr.P.C, committed the case to the Sessions Court, Palakkad.
4. To prove the case, prosecution examined PW1 to PW32, marked Exts.P1 to P50 documents and identified MO1 to MO22 material objects. Exts.D1 and D2 were marked on the defence side. During examination under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Code'), the appellants denied all the evidence tendered against them and pleaded CRA(V) No.598/15 -:5:- innocence.
5. The evidence adduced can be summarized as under:-
PW1 is the wife of deceased. The couple were residing permanently at Nilambur. According to her, her husband owned a property having an extent of 12½ acres at a place called Thathengalam in Mannarkkad. The estate was cultivated with rubber and coconut. There was a small house in the estate. He had purchased the estate 2 years prior to his death. He used to stay in the house situated in the estate for supervising the employees and he used to come to his house at Nilambur in every week end. Her husband called her over phone lastly at 10.30 p.m. on 16/8/2007. She was informed of the incident on 17/8/2007. So she went to the spot of incident on 17/8/2007 itself and the police had recorded her statement. She further deposed that one Sreeja (PW6) was working in the estate who had a case with A1. A1 Is none other than the younger brother of Sreeja's husband. It was a case of assault wherein PW1's husband was a witness. She further explained that on the subsequent day of the death of John Mathew, a purchase of property was proposed to be done. So the accused might have an impression CRA(V) No.598/15 -:6:- that her husband had kept a lot of money in the house, thereby they trespassed into the house and committed the murder of her husband.
6. PW2 is the son of PW1 and the deceased who was studying for Engineering in Bangalore at the time of the incident. According to him, his father, the deceased, has sent `61,000/- towards his fees through the account of the younger brother of the deceased, kept in the branch of Federal Bank, Bangalore and that matter was intimated to him by the deceased on 16/8/2007 over phone. He further stated that he had purchased MO1, a second hand mobile phone from a gulf bazaar at Nilambur for the use of his father. He identified MO1 mobile phone. He has further identified the purse, election ID card and PAN card of the deceased and those were marked as MO2 to MO4.
7. PW3 is the co-brother of the deceased. He was residing at Karakurussi which is 8 kms away from the place of incident. He also stated that his co-brother, the deceased had rubber plantation having an extent of 12 acres and he used to reside in the estate house. The deceased was assisted by a supervisor namely Kunjan (CW9) and food was prepared by a lady CRA(V) No.598/15 -:7:- named Sreeja for the labourers. In the morning on 17/8/2007, he was informed by CW9 over phone that the estate house of the deceased was broken and something had happened to John Mathew. So he rushed to the spot with his wife and neighbour and when he reached there, the door of the house was found broken and when they entered inside the house, Monichan was seen lying on the floor with legs and hands tied and he was dead. So, he went to the Mannarkkad Police Station and informed the matter to the police and he has signed the statement also. The FIS was marked as Ext.P1. He further stated that, in the room where the dead body was found, white powder was seen strewn and the other articles were also found lying scattered.
8. The argument raised by the learned counsel for the appellant is that there was sufficient evidence available in the case to convict the accused whereas the argument of the learned counsel appearing for respondents 2 to 6, who were accused in the case, is that the court below was justified in acquitting the accused for want of sufficient evidence. Further it is argued that in a case which rests on circumstantial evidence, all the hypothesis should lead to the guilt of the accused failing which it CRA(V) No.598/15 -:8:- is proper for the Court to give the benefit of doubt to the accused. It is further argued that in an appeal against acquittal, unless there is perversity or unreasonableness in the finding of fact by the trial Court, it is not open for this Court exercising appellate jurisdiction to interfere with the order of acquittal.
9. PW3 was the first person to inform the death of John Mathew to the Mannarkkad Police Station. Ext.P1 is his FI statement on the basis of which PW26, the Assistant Sub Inspector of Police registered Crime No.562/2007 (Ext.P26).
10. Court below held that motive has not been proved and the prosecution had failed to prove any illicit relationship between deceased and PW6.
11. In order to prove motive, the prosecution placed reliance on the evidence of PW6 and Ext.P4 complaint. But the trial Court observed that there is a complaint filed by PW6 that the first accused trespassed into her house and attempted to outrage her modesty and that she was physically assaulted by the first accused and his sister Sulochana in which John Mathew was an eyewitness. In so far as the case ended in acquittal, it cannot be a motive to commit murder as there was no threat on CRA(V) No.598/15 -:9:- John Mathew for having given evidence against A1. Court below therefore did not accept the same as a motive. It was argued by the learned counsel for appellant that a complaint was given on 24/7/2007 and the incident happened on 16/8/2007. According to the appellant, the time gap between the complaint and the commission of offence ought to have been considered.
12. Apparently, this is a case in which the deceased was a witness to a molestation case filed by PW6. A crime was also registered. Therefore, there is every reason for the first accused to have a grudge against the victim. The prosecution also has a case that accused 2 to 5 were roped in by the first accused on an offer stating that John Mathew had kept `14 lakhs with him for purchasing a property and the intention was to steal the said amount. But there is no evidence to prove that John Mathew was in possession of such a huge amount. But it is possible that the intention of the first accused would have been to commit murder and for that purpose, he would have got accused 2 to 5 roped in so that his motive could be accomplished. We are of the view that the finding of the trial Court that there was no motive to commit the crime is based on erroneous appreciation of evidence. Of CRA(V) No.598/15 -:10:- course, accused 2 to 5 had no intention to commit crime whereas their sole intention was only to commit theft.
13. There is no dispute about the fact that John Mathew's death was on account of a homicide. He was seen tied and left dead in his house by PW1, PW3, PW4, PW6 and PW31. Further the evidence of PW21, the Assistant Professor and Police Surgeon of Medical College Hospital proves that during post-mortem, he found 16 ante-mortem injuries. His evidence would disclose that death of the deceased was due to the combined effect of smothering and strangulation. The legs of the deceased were tied with a lungi, the forearm with a bath towel and a green shirt was also tied to the right forearm.
14. In so far as there is no eyewitness to the incident, the question is whether there is any circumstantial evidence to implicate the accused with the crime. PW5 is the star witness to the prosecution who deposed that on 16/8/2007, he received a call from the 5th accused to come with the autorickshaw. The auto bearing Regn.No. KL-50/ 843 belongs to his brother Vigesh. PW5 went home, took his brother's auto at about 10.45 p.m and thereafter he collected accused 2 to 5 from different locations CRA(V) No.598/15 -:11:- and they alighted near a bridge. His mobile phone did not have any range and therefore he took the mobile of 5 th accused. He was asked to wait there but he proceeded to a place called Cherukulam and waited for 10 minutes. Since accused 2 to 5 did not call him, he returned. In the meantime, 4 th accused called him and he came back and collected them from the parking place at Kaithachira. He was paid `150/- as autorickshaw charge. He was also asked to procure some beer and he purchased beer and gave it to accused 2 to 5. He further deposed that 2 nd accused was carrying a white colour bath towel and one person was holding a torch. His evidence would only indicate that he had brought accused 2 to 5 to a place called Kallampotty, Kaithachira and near a bridge. According to the prosecution, the house of deceased is near Kaithachira and therefore accused 2 to 5 had alighted and they joined the first accused only for the purpose of theft and committing murder.
15. In order to prove that the accused were in the house of deceased during the relevant time, prosecution had placed reliance upon two aspects. One is recovery of certain material objects which belonged to the deceased and secondly, certain CRA(V) No.598/15 -:12:- finger prints obtained from the house of the deceased which according to the prosecution belonged to accused 1 and 2.
16. As far as recovery of articles are concerned, the mobile phone, purse, election identity card and pan card of the deceased were identified by son of the deceased, PW2. They are MO1 to MO4. Though the police has a case that the recoveries were effected based on the confession statement of the accused, the witnesses to such recovery turned hostile to the prosecution. PW10 is the attestor to Ext.P8 seizure mahazar. He deposed that when he asked the Circle Inspector of Police as to why he is putting the signature, he was told that one mobile phone was recovered from the river. The witness was declared hostile since he deposed that he had not witnessed the 2 nd accused pointing out the place from where the mobile phone was recovered from the river. PW11 who is supposed to have dived into the river for recovering the mobile phone was also declared hostile as he denied having dived into the river to collect the mobile phone. A towel MO12 was recovered on the basis of confession statement of A2. PW12 was the witness. He did not support the prosecution case and he was declared hostile. A torch MO5 was recovered CRA(V) No.598/15 -:13:- based on the confession statement of first accused. The witness to the recovery turned hostile. Even otherwise, there is no evidence to prove that the torch was that of the deceased. The dress of the accused was also recovered based on their statement. According to the prosecution, the first accused was wearing the said dress when the offence was committed. But on chemical examination it was found that the blood group of deceased was 'A' and blood found in dress did not match with the blood of the deceased. Therefore, the recoveries effected by the police do not contain anything incriminating in order to implicate the accused. MO22 torch was seized at the instance of the 3 rd accused. The contention was that he had stolen the said torch from the house of deceased. PW6 was recalled to prove that the torch belonged to the deceased. But it is relevant to note that PW1 wife and PW2 son of deceased had not deposed that the said torch belonged to the deceased. Therefore, no materials were available in the case to suggest that the accused were in possession of any article that belonged to the deceased in order to implicate them for the aforesaid incident.
17. The most crucial evidence that had been placed CRA(V) No.598/15 -:14:- reliance upon by the prosecution is the finger prints of accused 1 and 2 which were found from the house of deceased. The trial Court did not place reliance on the said evidence.
18. PW29 deposed that at the instance of the investigating officer, he had sent Sri.Nigar Babu for the scene visit who collected two finger prints which was that of John Mathew. On 23/8/2007, he received a request from Mannarkkad police station to send a senior officer on the basis of which he had sent H.Abdul Rahiman, PW30, to visit the site. PW30 collected 6 chance prints and developed it. Since the photographer did not accompany him, he brought the chance finger prints to the office. One right hand palm print was that of Sadiq P., who was accused in Crime No.230/2000 of Nattukal Police Station. On 24/8/2007, one of the suspects in the case Suresh Babu's finger print was brought to the office. When Abdul Rahiman verified the same with the chance finger prints, the right ring finger print was identical. His report is Ext.P28. It was given on 25/8/2007.
19. PW30 deposed that he had gone to the scene on 23/8/2007 and collected 6 chance prints from the table fan stem (MO13), 3 chance prints from the plastic school (MO14) and one CRA(V) No.598/15 -:15:- chance print from the plastic cup (MO15). Exts.P29 and P30 are the reports. He had signed it. He further deposed that the finger print impression obtained from MO13 was that of Sadiq, who was an accused in Crime No.230/2000. With reference to the finger prints obtained from the plastic stool, the same was compared with the finger print of Suresh Babu and it was found to be identical. This evidence of course would prove that accused 1 and 2 were present in the said room. But the trial Court did not place reliance on the aforesaid evidence on account of the delay on the part of the investigating agency in not obtaining the finger prints immediately and not examining Nigar Babu in the case. It was found that Nigar Babu was the finger print expert who had collected chance finger pints from the place on 17/8/2007, immediately after registration of the crime. He could not locate any chance finger prints. It was only later, that is on 23/8/2007, when yet another officer goes to the scene, he collects more chance finger prints. The defence had a case that accused 1 and 2 were arrested much prior to the date of arrest as shown in the records and the finger prints were planted. The trial Court also felt that the investigation had not proceeded in the proper CRA(V) No.598/15 -:16:- manner. It was found that on 17/8/2007, there were no chance prints on MO13 to MO15 and the defence version was that PW31 had fabricated the finger prints of A1 and A2 in MO13 and MO14 and stage managed the inspection of PW30 in the scene on 23/8/2007. It was found that though MO13 to 15 were seized on 23/8/2007 as per Ext.P10, there is a correction in the date. A copy of Ext.P10 was given to accused 2 to 5 which was marked as Ext.D2. The said seizure mahazar was prepared not on 23/8/2007, but on 17/8/2007. It is found that subsequently 17 was cut off and 23 was inserted for which PW31 had no explanation. Therefore, the only evidence to connect the accused to the crime was the finger prints of A1 and A2. When the trial Court on the basis of sufficient materials have arrived at a finding that the said evidence cannot be relied upon for want of credence and genuineness, and when such a view is possible, it is not open for this Court to take a different view. From the factual aspects involved in the matter, we are of the view that the trial Court was justified in not placing reliance upon the finger prints of the accused which is allegedly procured by the prosecution.
Viewed in all angles, there is justification on the part of the CRA(V) No.598/15 -:17:- trial Court in acquitting the accused. We do not find any reason to take a different view. Therefore, the appeal fails and it is dismissed.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
N.ANIL KUMAR
Rp True Copy JUDGE
PS to Judge