Pandi vs State Of Kerala on 17 September, 2021

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Kerala High Court

Pandi vs State Of Kerala on 17 September, 2021

An unsuspecting driver took a trip for his taxi, little knowing that it would be his last one. His body was found on the next day, beaten, strangulated and incinerated. The murder was alleged to be part of a conspiracy to rob the taxi car; a crime for gain, hatched by A1 to A4. A5 has been roped in, for his role in transforming the car with a fake number plate, thus destroying evidence.

2. These appeals are filed by accused 1 and 5, the appeal of 2nd accused (Crl.A.No.203 of 2018) having abated for reason of his death. We heard learned Counsel Sri.Renjith B. Marar for A1 and learned Counsel Sri.Alexander George for A5. We also heard learned Senior Public Prosecutor Sri.Alex M.Thombra for the State.

3. The charge which the accused were called upon to defend was under Section 302, 392 read with 34, 120B and 201 of the Indian Penal Code. A5 was charged only under Section 201 of IPC. The charge against A1 to A4 Crl.A.Nos.848/2016 & - 4 - 1207/2016 reads of A1 having hired the car and while travelling towards Pooppara, A2 to A4 with a prior concert joined him. On the return journey, reaching Thaikarachira, Kottapuram in the early morning, the passengers wanted to alight and pay off the taxi driver. The driver alighted from the car and opened the right door of the back seat when A3 inflicted a wound on the backside of the head of the deceased and A2 hit with a lever on his face. A1 then caught hold of the hands of the victim when A4 strangulated the deceased with a clutch cable. Laying the supine body on the road margin, it was covered with a towel, petrol poured over it and set ablaze with a cigarette lighter. The case was set up on solely circumstantial evidence with no ocular evidence. We fail to understand how such a charge was made out with narration of the role of each of the accused. Well, one could imagine the accused speaking to the investigator when in custody. But if the prosecution is shaped on that and the evidence collected only on that; then of course the result would be disastrous as in this case. When a confession made by the accused cannot be relied upon by courts of law; the investigators should tread carefully in shaping the case and collecting evidence. This is a Crl.A.Nos.848/2016 & - 5 - 1207/2016 classic case in which the clumsy investigation and inept prosecution conspired together to derail the case against the accused. The impugned judgment is the product also of an overzealous Court who went on to convict, even in the absence of any evidence.

4. We first look at the path the investigation took as is revealed from the evidence of PW36, the Investigating Officer [IO]. The IO speaks of the detection of the body on 16.08.2012, the preparation of inquest report (Ext.P19), combing of the scene of occurrence by the Scientific Assistant and Fingerprint Expert, preparation of scene mahazar (Ext.P26), collection of samples for scientific examination and the commencement of investigation. A1 was arrested on 22.08.2012 and the arrest, custody and inspection memos were marked as Exts.P33, 34 and 35. A confession statement was obtained and a bag was seized as per seizure mahazar (Ext.P5). The stolen car was seized as per Ext.P27 seizure mahazar allegedly by a confession statement of A1. Pertinently, the confession statements of A1 were not marked nor did the IO speak on the specific concealment revealed by A1. On the same day, A2 and A3 were arrested and the memos relating to their arrest were respectively marked as Crl.A.Nos.848/2016 & - 6 - 1207/2016 Exts.P36 to P38 and Exts.P39 to P41. As per A3's confession, a hammer was recovered under Section 27 of the Evidence Act, by Ext.P10 mahazar. As per A2's confession, an iron lever (MO3) and RC book and Insurance particulars of the car were recovered, from inside a cover concealed, again under Section 27 as per Ext.P9 mahazar. The shirt and jeans worn by A1 were recovered by Ext.P43 mahazar, again a recovery under Section 27 without any reference to the actual confession made by the accused.

5. The arrested accused were remanded and later A1 was taken into custody and on his confession statement, the carrier of the stolen car was recovered from an auto garage as per Ext.P13 mahazar. Proof of ownership, a letter; of the shop room in which A5 was conducting his business was seized as per Ext.P45 mahazar. The mobile numbers of A1, call details, address proof and ID proof were collected from the service provider. Ext.P46 is said to be the seizure mahazar and Ext.P47 the covering letter of the service provider, as per the deposition of I.O. But P46 is the covering letter of the service provider and Ext.P47 is the account statement of A1. None of the documents forwarded as per Ext. P46 covering letter were marked or proved by examining the executant of the Crl.A.Nos.848/2016 & - 7 - 1207/2016 documents; an officer of the service provider. A1 was found to have deposited Rs.8,000/- in his account in Munnar Service Co-operative Bank on the 16th, for which a mahazar was marked as Ext.P48; without identifying in court, the object or document which was seized as per the said mahazar. Ext.P47 is that document which was stated to be the covering letter by the I.O. The mobile phone details of the deceased were obtained from the service provider; which again was not marked and the seizure mahazar alone was marked as Ext.P49.

6. A4 was arrested on 05.11.2012 and the memos concerning his arrest were marked as Ext.P50, P51 and P52. A confession was recorded and recovery made of a cable allegedly used to throttle the deceased; by mahazar marked as Ext.P15. Strangely, a scene mahazar was prepared as Ext.P53, allegedly of the exact spot inside a hotel, where A1 to A4 allegedly conspired. A4 was also then remanded. On further investigation, it was revealed that the registration number which was stuck on the number plate of the car recovered was a fake one. The RC details of the said fake number were marked through the I.O as Ext.P56, which revealed it to be of a motorbike. The property lists were marked as Ext.P57 series and forwarding note as Crl.A.Nos.848/2016 & - 8 - 1207/2016 Ext.P58. The contradictions marked by the prosecution; numerous in number, were proved through the I.O. The various material objects, without identification one by one, were marked as MO1 to M010 series by reference to the property list. The prosecution also failed to mark the chemical analysis report, which was later marked as per Ext.P60, after the cross-examination. Our interspersed observations in the above two paragraphs amply reveal the inept conduct of the prosecution, of which we would again show proof when we deal with the individual witnesses; who have also been declared hostile without any rhyme or reason.

7. Before we go into the circumstantial evidence, we would first deal with the medical evidence, which comes from the doctor, PW23, who conducted the postmortem examination. The postmortem examination report was marked as Ext.P21. The injuries on the body were lacerations on the (i) left lower lip, (ii) muscle deep on the left chin with fracture of the mandible at midline and on the left side as also fresh loss of front teeth on both jaws and

(iii) bone deep on the back of the head at the right side, just outer to occiput. There was a contusion on the right forehead with subarachnoid bleeding all over the brain. Crl.A.Nos.848/2016 & - 9 - 1207/2016 Flap dissection of the neck revealed multiple contusions over sternomastoid, sternothyroid and thyrohyoid muscles. The left horn of the hyoid and the body of the right side of thyroid cartilage were fractured. The corpse also revealed 30-40% burns over the trunk, upper limb and lower limb. The death was opined to be, because of the head injury and there was evidence of blunt injury to the neck and ante-mortem burns. The doctor deposed in tandem with the report and specifically pointed out that the burns were found to be ante-mortem since the lungs contained soot, which was possible only by inhalation. Hence, the definite opinion is that while the deceased was bludgeoned to death, he was set ablaze before he breathed his last, a brutal homicide without doubt; the investigation of which should have been carried out with a little more care and caution and of course, more skillfully and a lot more intelligently.

8. Many of the witnesses turned hostile to the prosecution and some were declared hostile without any rhyme or reason; for example, the wife of the deceased, PW22, for a minor discrepancy on the time; which was not very relevant. That A1 had engaged the taxi of the deceased is fairly well established by the evidence of Crl.A.Nos.848/2016 & - 10 - 1207/2016 several drivers who frequent the taxi stand, used by the deceased also. PW1, a resident nearby but stranger to the deceased, saw the dead body first on the early morning of 16.08.2012. He called a friend and together they informed the police, who came to the spot and took the FIS (Ext.P1). The deceased had not returned home after the trip and his wife had informed the other taxi drivers, who on hearing about the dead body reached the spot and identified it.

9. PW2, a taxi driver of the same taxi stand, deposed that at around 1.30 p.m. on 15.08.2012 a young man, about 30 years of age, was seen talking to the deceased and going down the road. On enquiry, the deceased told PW2 that the young man wanted to go to Pooppara and had gone down to have food, promising to return. At around 2.30 p.m., the man returned and the deceased proceeded towards 'Oushadhi' with the young man sitting in the front seat. When the deceased was not seen till 10.00 a.m. on the next morning, PW2 unsuccessfully called the mobile of the deceased. He then enquired with the wife, when she said that her husband was scheduled to reach back by around 3 O'clock, early morning. Since the deceased had not returned till 10.30, a complaint was preferred before Crl.A.Nos.848/2016 & - 11 - 1207/2016 the Perumbavoor Police Station. The Perumbavoor Police enquired and found that no accidents have occurred on the Adimaly road. The detection of an unidentified body within the Kuruppampady Police Station limits was intimated and some of the taxi drivers went to the spot to verify. They identified the body of the deceased. The vehicle was not seen anywhere near the body.

10. PW3 was another taxi driver, who said that the young man of around 30 years first approached him at 11.30 a.m for a trip to Pooppara. Though he promised to return, since he was not seen till afternoon, PW3 had taken a short hire. Contrary to his Section 161 statement, he stated before Court that he had not gone to identify the body the next day, for which reason he was declared hostile. There were enough persons who identified the deceased and the purpose of PW3 was to prove the presence of A1 in the locality and to establish his intention to hire a taxi to go to Pooppara; which was carried out in the chief-examination. We are at a loss to understand why he was declared hostile. PW21 also a taxi driver, deposed that on 15.08.2012 the deceased was hired for a trip to Pooppara at around 2.30 p.m., and he had seen the person who hired the taxi. He also went to the spot in Crl.A.Nos.848/2016 & - 12 - 1207/2016 which the body was detected on the next day and identified the deceased. PW31 is yet another taxi driver. A little later to the commencement of the chief-examination, the Prosecutor was allowed to cross-examine without any reason shown by the Judge. The said witness also identified the body on the next day. PW2 identified the dress worn by A1 when he hired the taxi as MO2 shirt and MO2(a) pants and the bag he carried. PW3 and PW31 also said that A1 was wearing blue jeans and a shirt.

11. One important question raised by the defence was the lack of identification of A1, from among the four accused in the dock. Of the five accused, A3 was not tried along with the others for reason of the said accused being a minor. PW2 said that he can recognize the person who hired the taxi of the deceased and that the person was of medium complexion, stout face with chickenpox marks on his face. His identification was to the effect that 'A1 is Selivin'. PW3 merely stated that 'A1 is in Court'. He also said that A1 had pockmarks on his face and that he spoke Malayalam with a Tamil tinge. In PW21's deposition, it is merely stated that A1 was identified and A1 hired the taxi. PW31 spoke of a man speaking in Malayalam with Tamil slang, who had a small mark on his face. The Crl.A.Nos.848/2016 & - 13 - 1207/2016 identification was to the effect 'he is standing on the dock'. When there are four accused in the dock, it was incumbent upon the witnesses to identify the particular accused by something distinguishable, like for example, the position in which he is standing with the other accused or the dress he is wearing. The same has not been done in the present case and though there is clear identification of the man's face being covered with pockmarks, we have to assume that no other accused had such a mark on his face. In Vayalalil Girishan v. State of Kerala 2016 KHC 204 a Division Bench has delineated on how identification has to be carried out in a trial Court; which procedure was not followed here.

12. PW4 spoke of having seen a white car at around 3.00 a.m. which came up to his cattle shed and returned. PW5 runs a hotel in Pooppara. He spoke of three persons having come to his hotel and sought permission to take liquor, which was declined. They then purchased a parcel of six porottas and three beef (curry) and left. He said that A2 and A3 were brought to his hotel by the police party and later he was shown A4. In cross- examination, he stated that he could not recognize the persons who came to his hotel. There was no identification Crl.A.Nos.848/2016 & - 14 - 1207/2016 made and his specific statement in the chief-examination was that A2, A3 and A4 were shown to him by the police. PW6 runs a mobile tea shop at Pooppara, who turned hostile to the prosecution and said that he could not recognize the person who took food from his hotel at 10.00 p.m., on 15.08.2012. Several contradictions were marked, by the prosecution, from his statement under Section 161. PW7 identified A4 as the person who purchased two litres of petrol from the petrol bunk in which he was working, in two bottles, on the pretext that his motorcycle was lying on the road. But there is nothing to connect A2 to the crime and the mere fact that he purchased petrol and petrol was used to set ablaze the victim cannot be the sole reason to find him guilty. There is also nothing incriminating in the evidence of PW4 to PW7 against the appellants, A1 and A5.

13. In addition to the circumstance of A1 having hired the car of the deceased for a trip to Pooppara, the other incriminating circumstances against him, according to the prosecution, are the recoveries made under Section 27 of the Evidence Act. By Ext.P5 seizure mahazar, the bag which he was carrying on the day he hired the taxi was recovered from his house at Pallivasal Panchayat/Village Crl.A.Nos.848/2016 & - 15 - 1207/2016 at the time of his arrest on 22.08.2012. PW8, the witness to the seizure mahazar, turned hostile and stated that he did not see the recovery of the bag as per Ext.P5. Ext.P6 contradiction was marked from his Section 161 statement. There is nothing incriminating detected from the bag recovered, as per Ext.P5. The stolen car is said to have been recovered, again on the confession statement of A1, and the seizure mahazar is marked as Ext.P7. As argued by the learned Counsel, the I.O does not speak of what the confession statement was and merely marked Ext.P7 without even marking the extract of the confession, a serious lapse on the part of the prosecution. In Mohd. Abdul Hafeez v. State of A.P. [AIR 1983 SC 367] the Hon'ble Supreme Court held that 'If evidence, confessional in character is admissible under Section 27 of Evidence Act, it is obligatory upon the Investigating Officer to state and record who gave the information; when he is dealing with more than one accused, what words were used by him so that a discovery under the information received may be connected to the person giving the information so as to provide incriminating evidence against the person' (sic- para5). PW9 is the witness to Ext.P7 seizure, who turned hostile before Court.

Crl.A.Nos.848/2016 & - 16 -

1207/2016

14. The learned Public Prosecutor argues that the identification of the car is very clear from the engine number and chassis number; seen from the scene mahazar. Despite the witness to the mahazar having turned hostile, there is nothing to dispute the identity of the stolen car, is the argument. We are unable to countenance the said argument. As we noticed, but for marking of Ext.P7 mahazar, the I.O did not speak of either the confession or the engine number or the chassis number seen in the mahazar, in his deposition. The I.O has to clearly depose on the path the investigation took and how it was ascertained that the car recovered was the one stolen. The prosecution too, made no attempt to confront the I.O with Ext.P7 mahazar and the RC book of the stolen car, allegedly recovered under Section 27 on the confession made by A2. The RC book and Insurance particulars along with an iron lever; which lever was allegedly used to deliver a blow on the head of the deceased, was recovered by Ext.P9 mahazar on the confession statement of A2. A2 though has filed an appeal (Crl.A.No.203 of 2018), is now deceased. The car which was recovered also had a sticker pasted on its number plate with the registration number TN-57-H-6112. When the sticker was removed, the number Crl.A.Nos.848/2016 & - 17 - 1207/2016 plate showed the registration number KL-40-D-3846, the registration number of the taxi of the deceased. However, none of these was spoken of by the I.O, which alone would make it substantive evidence capable of being acted upon.

15. The TN registration number on the sticker is projected by the prosecution to be fake by placing reliance on Ext.P56. Ext.P56 is a communication addressed by the RTO, Dindigul to the Inspector of Police, Kuruppumpady Police Station which discloses the TN registration number to be that of a 'motorcycle without gear'. The said document was marked by the I.O and no dispute was raised. But the use of a fake number can be alleged as an incriminating circumstance in the present crime against A1, only if the car is shown to be that of the deceased and it is proved to have been recovered on the confession of A1. Again, coming to the chassis number and engine number, the evidence of the wife of the deceased, PW22, discloses that the car, the carrier and the documents recovered were handed over to the wife as per Ext.P20 Kychit. On seizure, the car was not attempted to be examined by a Motor Vehicles Inspector for verification of the details in the RC book recovered by the police. Moreover, the RC book and the Insurance Crl.A.Nos.848/2016 & - 18 - 1207/2016 particulars were not sought to be produced in original or even marked before Court; which alone could have evidenced the recovery under Section 27.

16. The Kychit was proved and marked as Ext.P20, by PW22. We also see certified copies of the Registration Certificate and Insurance particulars; presumably kept in the records when the original was released on Kychit. However, even these certified copies were not marked or proved by the I.O. The mahazar witnesses who witnessed the seizure was not showed the originals and the recovery proved or not even the photocopies were attempted to be marked after verification with the original. These are very serious lapses on the part of the prosecution and to make matters worse, PW9 witness to the recovery mahazar turned hostile. He identified his signature in Ext.P7, but he denied having seen the accused. In cross-examination, he denied having seen the recovery in its entirety. The recovery, hence, cannot be pinned on A1 as an incriminating circumstance because of the sheer incompetence of the prosecution.

17. The learned Public Prosecutor further urge that the car was opened and driven back using the key available with A1. We do not see any recovery of a key Crl.A.Nos.848/2016 & - 19 - 1207/2016 from the body of A1 when he was arrested. True, the recovery mahazar, Ext.P7, speaks of the Indica Car abandoned on the roadside having been opened with the key available with A1. On the arrest of A1, the arrest memo, custody memo and inspection memo were respectively marked as Exts.P33, P34 and P35 which does not disclose such a key having been recovered from his body. As we noticed earlier, the arrest was made from his house at Pallivasal Village. The recovery made therefrom was a bag carried by him when he hired the vehicle and other objects found inside the bag which does not include the keys of a car. Inspection memo at Ext.P35 indicates at column 8 the particulars of body search. The handwritten report is 'wearing apparels only'. The key of the stolen vehicle hence cannot be connected to A1.

18. A carrier was recovered allegedly on the confession of A1 as per Ext.P13 mahazar. The confession statement was not marked, but the deposition of the I.O and the statement in Ext.P13 is to the effect that 'I shall show you the place where I repaired the car', which does not really disclose any concealment as required under Section 27 and the carrier recovered is not part of a confession statement. The carrier which was given to the Crl.A.Nos.848/2016 & - 20 - 1207/2016 wife of the deceased, as per a Kychit, was also not produced before Court. Moreover, PW15, the witness to the mahazar, denied having seen the recovery or the accused. PW13, a painter, was examined to prove his statement that the car was brought to him for repairs. However, the same was denied by the witness and he was declared hostile. PW14 is a motor mechanic, who was working in the workshop, who also denied the knowledge of the recovery or acquaintance with the accused.

19. We would not speak of the recovery as against A2 since his appeal requires to be dismissed by us, as abated for the reason of the death of the appellant. We also would not discuss the recovery as against A3 of a hammer and the dress worn by him, since he is standing trial before Juvenile Justice Board. A4 has not chosen to file an appeal and hence it would be futile to consider the evidence against him. We would only say that the charge in the present case does not speak of the use of a hammer in the crime and there is no connection established between A2, A3 or A4 and the other accused, to even remotely establish a conspiracy having been hatched by the accused together. We cannot but notice the recovery of the iron lever, which, as per the charge-sheet, was used to Crl.A.Nos.848/2016 & - 21 - 1207/2016 beat the deceased to death. The recovery was by Ext.P9 on 22.08.2012. However, PW23, the doctor who conducted the post-mortem, deposed in chief-examination 'on 16.08.2012 police had shown weapon to me'; again, a serious lapse on the part of the investigation team or the prosecution, which puts to peril the recovery made of the weapon.

20. Now we come to the evidence as against A5. A5 is said to be running an establishment by name 'Aravind Stickers', where the prosecution alleges the sticker with the fake TN registration number was made. PW17 was examined to prove the ownership of the room which was rented out by A5. He turned completely hostile and denied any statement to the police. Ext.P45 mahazar, witnessed by PW18 and PW19, seized a letter from PW17 which was not produced for reason of both the witnesses turning hostile. There is nothing to connect the sticker to A5. Hence, there was no circumstance to find the involvement of A5 in the alleged act of destroying evidence.

21. As to the scientific evidence, we looked into the property list at Ext.P57, the forwarding note at Ext.P58 and the chemical analysis report at Ext.P60. As per Ext.P58, item No.11 are light blue coloured stonewash jeans and a full sleeve check shirt which are said to have Crl.A.Nos.848/2016 & - 22 - 1207/2016 been worn by A1 at the time when he hired the taxi. The test for bloodstains as per Ext.P60 report was negative in both the jeans and the shirt. There was no blood detected on the lever alleged to have been used to beat the deceased. There is hence no scientific evidence to connect the accused with the crime.

22. At best what has been established by the prosecution is that A1 had hired the taxi of the deceased for a trip to Pooppara. The deceased, on the next day, was found dead and the car was missing. The mere fact that A1 was seen travelling in the taxi car on the previous day cannot be an incriminating circumstance to accuse him of the murder and theft of the car which obviously happened on the early morning of the next day. We have found that the recoveries have not been proved and despite the various witnesses turning hostile, the learned Sessions Judge relied on the evidence of the I.O. The evidence of the I.O itself is shaky and lacking in details. The recovered car is not established to be that of the deceased which lays bare the incompetence of the prosecution. As we noted at the outset, the incompetence of the investigation and the prosecution resulted in no circumstance being established against the appellants Crl.A.Nos.848/2016 & - 23 - 1207/2016 herein. The Court too was a silent spectator, anxious to convict even when there was a complete lack of evidence.

The appeals are allowed and the appellants (A1 and A5) are acquitted of the charges levelled. If they are in custody, they shall be released forthwith, if not wanted in any other case. If they have been released on interim bail, then the bail bonds shall stand cancelled. A certified copy of the judgment shall be issued to the Member Secretary, Kerala State Legal Services Authority [KeLSA], who shall instruct the concerned Secretary, District Legal Services Authority to consider the payment of compensation to the family of the deceased as per the Kerala Victim Compensation Scheme, 2017. The Member Secretary, KeLSA shall also conduct enquiries as to the prison in which the 4th accused is incarcerated and enable an appeal, if he so desires. Ordered accordingly.

Sd/-

K. Vinod Chandran Judge Sd/-

Ziyad Rahman A.A. Judge vku/-

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