Poojari @ Arkiith Maji, C.No.3840 vs State Of Kerala on 21 December, 2021

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Kerala High Court

Poojari @ Arkiith Maji, C.No.3840 vs State Of Kerala on 21 December, 2021

Friends or foes when one is killed, suspicion falls on the others. However, when such suspicion turns into an assumption, the investigation goes awry. This is a classic case where the investigators went awry, on assumptions galore.

2. The accused, two in number, and the deceased were migrant labourers, natives of Odisha who were working and living together. Admittedly, there was one another person, also a migrant labourer from the very same State, living along with them. The deceased was found stabbed and hacked, in his living quarters which he shared with three other migrant labourers, all of whom were found missing. The Police went to Odisha and brought back the two accused along with another. Pertinently, it Crl.Appeal Nos.28 & 29 of 2018

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is not clear from the evidence led, who the other person was, said to have been living with the deceased and the accused.

3. The prosecution paraded 18 witnesses before Court, marked 23 documents and produced 13 material objects. There were no contradictions, witnesses or documents marked on the part of the defence. The Trial Court convicted the accused under S.302 r/w S.34 IPC and sentenced each of the accused to suffer imprisonment for life and pay Rs.1 lakh each.

4. Appearing for the appellant, Advocate.Sai Pooja emphasizes that the case is one of circumstantial evidence and that the onus is more on the prosecution to prove the circumstances beyond any reasonable doubt, which together form an unbroken chain pinning the crime and the guilt on the accused. In the present case, there is no identification of the deceased in the first place. But for PW1's statement, that he found Boby lying dead, there is no description of Boby or even a photograph ferreted out to prove the identity beyond any doubt. The Crl.Appeal Nos.28 & 29 of 2018

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question of identity assumes relevance especially when PW1 deposes that he had all along kept in his custody, the ID cards of his employees; especially migrant labourers. Ext.P2, ID card of A1 was produced, but not that of A2, the deceased or their unknown living companion. There is also suspicion in the production of the ID cards since the mahazar is dated before the arrest of the accused and production of ID card before Court is after such arrest.

5. There is no clear evidence of how many people were staying in the quarters and each witness has a different version. Three migrant labourers were examined as PWs.14 to 16, who were at various times staying along with the accused and the deceased. They were examined to prove the alleged motive, which according to the prosecution is the enmity nurtured by the accused against the deceased for reason of his drunken brawls and harassment perpetrated on the accused. The identity of the unknown companion of the accused and the deceased were not elicited from any of them. The motive also was Crl.Appeal Nos.28 & 29 of 2018

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not established since the evidence was only to the effect that the accused and the deceased used to regularly engage in drinking bouts and quarrel with each other. The last seen theory has no legs to stand, since at best the accused and the deceased were last seen by PW2 on the evening of 05.04.2014. This has to be juxtaposed with the fact that there is no exact time of death noticed by the Doctor who conducted the postmortem examination, of the body detected on the ninth.

6. The recoveries cannot be believed and the learned Counsel relies on Mani v. State of Tamil Nadu [2009 (17) SCC 273] to contend that a conviction cannot be based solely on discovery. The seizure of the dress is irrelevant and there is no evidence as to the dress worn by the accused at the time of the alleged crime. The learned Counsel relied on Yohannan v. State of Kerala [2016(4) KHC 881] to canvass this point. The mere fact that the accused quarreled with each other is not a valid motive as has been held in Surendra Kumar v. State of U.P [AIR 2021 SC 2342]. It is pointed out that there was no Crl.Appeal Nos.28 & 29 of 2018

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personal effects of the accused or deceased recovered from the living quarters. The said fact assumes relevance since, even according to PW1, his employees were liable to vacate the quarters on 06.04.2014. The FIS also speaks of PW1 having been told that the accused left the premises on 07.04.2014 at around 4 p.m; informing the neighbours that they were returning home. There is absolutely no circumstance connecting the accused to the crime and they are entitled to be acquitted in appeal.

7. Sri.Alex M Thombra, the learned Senior Public Prosecutor, would on the other hand support the conviction and sentence passed by the lower Court. It is his submission that the identity of the deceased was never questioned by the accused. The accused and the deceased were living together and they ought to have explained what happened to their living companion, Boby, with whom they were last seen by PW2. The dress recovered at the instance of the accused was under S.27 of the Evidence Act, which confession establishes the concealment of the dress. The involvement of the accused Crl.Appeal Nos.28 & 29 of 2018

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is proved by scientific evidence as found in Ext.P20 FSL report. Item Nos.17 and 20 in the FSL report indicate blood stains on the dress corresponding to the group of blood recovered from the scene of occurrence. The recovery of the knife is also spoken of by A1 which further establishes the crime; on its recovery by the accused from the place of concealment. The motive, the absence of a valid explanation by the accused, their absconding from the scene of occurrence, the recovery of the dress and weapon based on the confession by the accused, the scientific evidence regarding the presence of blood of the same group; together provide a chain of circumstance, complete and unbroken, pinning the guilt on the accused unequivocally. There is not a single ground to overturn the conviction and sentence ordered by the Trial Court asserts the learned Prosecutor.

8. The appeals arise from the judgment of the Trial Court. Ext.P1 is the FIS by PW1, in whose employment the accused and the deceased were; who also provided the living quarters. PW1 was engaged in the Crl.Appeal Nos.28 & 29 of 2018

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business of cutting stones and owned a machine for the same. The machine was sold to PW2 and the accused and the deceased who were working with PW1, along with another employee who joined PW1 just a month back, were send to operate the machine. The employees loaned to PW2 were working with PW1 for the last 6 months and he had arranged the living quarters near the work spot. On 09.04.2014 PW1 called his employees over telephone and since there was no response he called PW2 to enquire about the whereabouts of the migrant labourers. PW2 informed him that they had left on the evening of 05.04.2014 saying that they had to vacate the living quarters on 06.04.2014. PW1 having failed to get them on phone, went to their living quarters at about 10 a.m. Nobody was seen in the premises and he entered the residential building, when he noticed a stench coming from the room to the east. He saw a person lying supine, with blood clotted around his neck. When he removed the plastic sheet he saw the deceased lying with a wound on his neck. He immediately called a neighbour, Sivadasan Crl.Appeal Nos.28 & 29 of 2018

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and then PW2. When he enquired at the premises he was told that three migrant labourers had left the place on 07.04.2014 evening at around 4 p.m informing one Suma (PW5) that they were returning home. PW1 assumed that the deceased was killed between 6 p.m on 05.04.2014 and 4 p.m on 07.04.2014. He further assumed that the murder would have been committed by the persons who were staying with him. These assumptions were the foundation of the prosecution case. PW1 feigned ignorance as to the roots of the deceased and his family. PW1 said that there was one Raju, who was also staying along with the deceased and the accused.

9. PW2 is the person under whom the accused and the deceased were working last. According to him, the deceased and the accused along with one Ravi brought the machine to him on 03.04.2014 and left. On the 4 th and 5th all four of them came for work and returned after taking wages. The next day was a Sunday and on Monday one of them called and told him that they were going to Aluva and will not be coming for work. When they did not come Crl.Appeal Nos.28 & 29 of 2018

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for work on the next day also, he called PW1, who promised to enquire and on Wednesday called him to say that one of the labourers was lying dead. PW2 also went to the living quarters and confirmed that there was a person lying dead. But he could not recognize the dead man. He categorically says that PW1 told him that no I.D. Card was obtained from the workman. PW2 also deposed that one week from the date of detection of the body, the accused were shown to him. PW3 is the owner of the living quarters and he confirmed that his residence was rented out to PW1 for the purpose of housing migrant labourers. The rental agreement was with PW1; entered six months back. It was PW1 who paid the rent and he had housed four persons in the residence, Poojari, Raju, Boby and yet another person, whose name was not known to PW3. He identified A1 & A2 from the dock. According to PW3, he had requested PW1 to vacate the premises about a week back and PW1 had promised to do the same within 2 to 3 days.

10. PW4 is the nephew of PW3, who confirmed the Crl.Appeal Nos.28 & 29 of 2018

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rental arrangement and the fact that the accused and deceased were staying there. He identified A1 & A2 and also was acquainted with Boby, the deceased. He identified Boby's dhoti as MO1 and MO2 knife as the one entrusted to the Police by the 1st accused. He also confirmed having seen all the three in the rented accommodation on the previous day of the day in which the incident occurred. Here we have to notice that but for detection of the body, there is no specific evidence of the day on which the murder occurred. PW5 was the person who informed PW1 about the migrant labourers having told her that they were going back home; which she denied in Court. She feigned ignorance about the details of the case and merely said that she had seen two persons, identified as the two accused, walking through the rubber estate on Monday evening, ie. on 07.04.2014.

11. PW6 did not depose anything relevant and PW7 & PW8 witnessed Ext.P4 inquest report. PW9 is a neighbouring resident, who confirmed that the accused and deceased were staying in the house of PW3. He spoke of Crl.Appeal Nos.28 & 29 of 2018

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having seen the accused [in the plural form] taking out the knife and handing it over to the Police. He also marked Ext.P5 recovery mahazar for MO2 knife and Ext.P6 recovery mahazar by which MO3 to MO6 dress of both the accused were seized. MO2 allegedly was recovered on the confession statement of A1 and MO3 to 6 on the confession made by A2.

12. PW10 conducted postmortem examination and proved the certificate Ext.P7. He deposed that death was due to the impact of injury Nos.1,2 and 4 to 6. Injury No.1 was opined to be sufficient in the ordinary course to cause death. All the injuries, according to him, were possible by the two weapons shown to him, ie, the knife and axe. Injury No.4 was possible by using the blunt portion of the axe. Injury No.5 could also lead to death. The medical evidence is clear and the death is by homicide. PW11 is the Scientific Assistant, who examined the scene, in the presence of the Investigating Officer [I.O.] and collected some items which are evident from Ext.P8. PW12 marked Ext.P9 Ownership Certificate of PW3, Crl.Appeal Nos.28 & 29 of 2018

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of the rented premises. PW13 is the Village Officer, who prepared Ext.P10 sketch of scene of occurrence.

13. PW14, 15 & 16 are the three migrant labourers examined with the help of an interpreter, all of whom were quarry workers. PW14 said that he stayed with the deceased and both the accused for about two weeks, starting from April, 2014. He also spoke of the three taking liquor after work and quarreling with each other. He identified both the accused and said that Boby was not alive now. He heard about Boby's death after three days, from one Varghese and he left for home on 10.04.2014. He also deposed that he saw A1 at his native village, to whom he enquired about Boby, when A1 threatened and returned to his Village. PW15 also stayed with both the accused and the deceased. According to him there were five persons staying in the rented premises, in addition to the two accused and the deceased. He stated the names of the other two as Prasad Majhi and Masooka Majhi. PW15 is Prasad Majhi, who spoke of having stayed in the rented premises for four months in 2014 Crl.Appeal Nos.28 & 29 of 2018

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during March and April. According to him, he shifted his residence since there were frequent quarrels between the accused and the deceased. He speaks of having heard about the death of Boby from Biju (PW1?) while he was working with one George after he shifted the residence. He specifically speaks of being acquainted with Boby and having seen him in his Village. He also spoke of having handed over the photographs of the accused to the Police. In cross-examination he further stated that Boby belongs to the same Village as A2 and A2 married from his Village. PW16 is another migrant labourer, who was working with PW1. He too spoke of the five persons along with whom he resided in the rental premises as spoken of by PW15 ie: in addition to accused and deceased; Prasad Majhi and Maso Majhi. Again we have to notice that PW16's name is Masso Majhi and hence the five included PW15 &

16. He says that he shifted his residence in August after staying with the accused and deceased for two months. He further said in cross examination that there were six persons staying in the rented accommodation. He too Crl.Appeal Nos.28 & 29 of 2018

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asserted that Boby was his friend.

14. PW17 is the person who took the FIS-Ext.P1 and registered Ext.P11 FIR and PW18 is the I.O. PW18 has not made any attempt to identify the dead person and had merely assumed that it is Boby as spoken of by PW1. He spoke of seizures having been made from the scene of occurrence, which included an axe marked as MO13. Ext.P2 Identity Card is said to have been handed over by A1, which was seized as per Ext.P3 mahazar. The dead body was cremated in the municipal crematorium since none of the relatives turned up. The I.O. speaks of having made enquiries about the two accused and one Dhan Singh. The police party proceeded to Odisha to apprehend them. It is deposed that with the help of the Police at Odisha the three were apprehended who agreed to accompany the Police to Kerala. It is stated that on arriving within the State, the three were questioned with the help of a Home Guard called Baby. Dhan Singh was let off since the Police understood that he was not involved in the crime. A1 & A2 were arrested as per Ext.P12 on 26.04.2014. Crl.Appeal Nos.28 & 29 of 2018

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15. A1 confessed about the knife having been thrown into the shrubs near the rented accommodation. On the basis of this confession, A1 was taken to the premises from where he recovered the knife, which was seized as per Ext.P5 mahazar. The knife was identified as MO2 and the confession statement was marked as Ext.P5(a). The accused were produced before Court and remanded as per Ext.P16 remand report. They were then taken into custody and on questioning A2, he confessed the concealment of the dress inside the house itself on the roof. On 07.05.2014 the dress is said to have been recovered as per Ext.P6 mahazar based on Ext.P6(a) confession statement.

16. As has been rightly pointed out by the learned Counsel for the appellants, the Police has not attempted to identify the body, as that of Boby, who was PW1's employee and staying along with the accused. The Police proceeded on the assumption that the dead person is Boby as spoken of by PW1. In fact PW2, who also saw the body immediately after detection, could not recognize Crl.Appeal Nos.28 & 29 of 2018

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him. The photographs of the body have not been taken by the Police to understand whether the face was recognizable, especially since the injuries are said to have been caused to the neck and face, as is evident from the postmortem report-Ext.P7; which also indicates decomposition having set in. In this context, it is very relevant that PW14 to PW16 were migrant labourers, who had very close acquaintance with Boby, with whom they were residing in the rented accommodation. Immediately after the detection of the body, all the three persons were in the locality and PW16 specifically says that he was in the employment of Biju, from whom he came to know about Boby's death. The Police did not attempt to identify the body through the three migrant workers.

17. The Police went to Odisha to apprehend the accused and one Dhan Singh. PW14 is also Dhan Singh, but the I.O. does not identify him as the person who was brought from Odisha, along with the accused. The I.O. also has not conducted any investigation to find out Raju, who according to PW1, was staying along with the Crl.Appeal Nos.28 & 29 of 2018

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accused and the deceased. PW2, on the other hand, spoke about one Ravi having accompanied the accused and the deceased for operating the machine, which he purchased from PW1. More surprisingly, the migrant workers PW14 to PW16 do not identify one Raju having stayed with them. PW14 had a different version, from PW15 and PW16 as to the number of persons, who were accommodated in the living quarters rented out by PW1. PW14 also says that he had stayed for two weeks in the rented accommodation starting from April, 2014; the crime occurred on the first week of April. Likewise, PW15 also spoke of having stayed for four months during March, April of 2014. Considering the testimonies of PW14 to PW16 there is no clear picture as to who were staying in the rented accommodation. In all probability the three persons examined before Court were living along with the deceased and the two accused. They too have no explanation as to how Boby was found dead in the premises. As for the family of Boby, PW16 speaks of Boby being a native of A2's Village and it was easy for the police party, who Crl.Appeal Nos.28 & 29 of 2018

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went to Odisha, to trace out the family of Boby, to which end there was no attempt made.

18. The prosecution also relies on the recovery of the knife and the dress of the accused, which was sent for scientific examination. Ext.P5 is the seizure mahazar of the knife and Ext.P5(a) is the confession statement. The confession statement is recorded in Malayalam, while even the S.313 statement was translated to Hindi through an interpreter. The recovery as per Ext.P6 also suffers from the very same infirmity. The interrogation of the accused, even as per the Mahazar was carried out through an interpreter; a Home Guard. Neither was the statement recorded in the language in which it was given, nor was the translator examined. The recovery cannot form an incriminating circumstance going by the decision of another Division Bench in Sanjay Oraon v. State of Kerala [2021 (5) KLT 30. Since the recoveries cannot be held to be incriminating, whatever scientific evidence obtained from the recovered objects cannot also be relied upon.

19. The postmortem report is produced at Ext.P7, Crl.Appeal Nos.28 & 29 of 2018

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which was marked by PW10, the Doctor. The body was detected on 09.04.2014 and was kept in the cold room till 13.04.2014, on which date the postmortem was conducted. The exact time of death has not been stated in the postmortem certificate, nor is it stated by the Doctor, PW10. The deceased was last seen on 05.04.2014 along with the accused. The body having been detected on 09.04.2014 and there being more occupants in the living quarters, it cannot be said that the last seen theory is applicable. The accused and the deceased were seen together at their place of work, when they collected the wages for the day and left. The accused, even according to PW1 & PW3, were supposed to vacate the premises by 06.04.2014. On 07.04.2014 the two accused were seen walking through the rubber estate and it was on 09.04.2014 that the body was detected. The identification of the body is also hazy especially looking at the postmortem report, which indicates decomposition having settled, with maggots seen at the neck area, eyes bulged out and mustache lost, due to decomposition. We are of the opinion that the Crl.Appeal Nos.28 & 29 of 2018

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prosecution has failed to prove the guilt of the accused beyond reasonable doubt.

20. We extract hereunder the oft-repeated principles delineated by the Hon'ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, at page 185 :

"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

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

It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra19 where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent 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 Crl.Appeal Nos.28 & 29 of 2018

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(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."

We do not find the evidence led, in the above case, sufficient to bring home the guilt of the accused, beyond all reasonable doubt. We hence give the accused the benefit of doubt and acquit them, overturning the judgment of the Trial Court. The accused shall be released forthwith if they are not wanted in any other case. Both the appeals stand allowed.

Sd/-

K.VINOD CHANDRAN, JUDGE Sd/-

C.JAYACHANDRAN, JUDGE jma/sp

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