Noufal Aseez vs State Of Kerala on 24 June, 2025

[Cites 13, Cited by 0]

Kerala High Court

Noufal Aseez vs State Of Kerala on 24 June, 2025

The judgment of conviction and the order of sentence passed against the 1st accused in S.C. No.657/2019 on the file of Additional Sessions Court-II, Kozhikode, for offences punishable under Sections 302 and 201 of the Indian Penal Code are under challenge in this appeal. By the impugned judgment, the 2nd accused, who faced trial along with the 1st accused, was acquitted.

2. The facts of the case in brief are as follows:

Due to an animosity that Sudheer Babu @ Cheruthu Sudheer, the deceased in this case, had attempted to engage in unnatural sex with the 1st accused and on another occassion Sudheer Babu had beat on the face of the 2nd accused at a place called Mahe, the accused Nos.1 and 2 in furtherance of their common intention, on 05.11.2018 at some time between 8 a.m. and 9 a.m., inside the room of an abandoned railway quarters bearing No.CLT 96B, situated on the eastern side of the railway station, Kozhikode, assaulted Sudheer Babu by kicking and murdered him by hitting on his head with a brick. After committing murder of Sudheer Babu, the accused with an intention to cause the disappearance of Crl. A. No.1327 of 2023 :3: 2025:KER:45246 evidence, took the dead body of Sudheer Babu to a bushy area near the compound wall of the said railway quarters and covered the same with an asbestos sheet. Hence, the accused are alleged to have committed the offences punishable under Sections 302, 201 r/w 34 IPC. 3. On completion of the investigation, the final report was submitted before the Judicial First Class Magistrate Court-I, Kozhikode. Being satisfied that the case was one triable exclusively by the Court of Session, the learned Magistrate, after complying with all the necessary formalities, committed the case to the Court of Session, Kozhikode, under Section 209 of the Criminal Procedure Code. After taking cognizance, the learned Sessions Judge referred the case for trial and disposal to the Additional Sessions Court-II, Kozhikode.

4. On production of the accused before the trial court, the learned Sessions Judge, after hearing both sides under Section 227 of the Cr.P.C., and perusal of records, framed a written charge against the accused for the offences punishable under Sections 302, 201 r/w 34 of the Indian Penal Code. When the charge was read over and explained to the accused, both of them pleaded not guilty and claimed to be tried.

5. The prosecution, in its bid to prove the charges levelled against the accused, has altogether examined 41 witnesses as PW1 to Crl. A. No.1327 of 2023 :4: 2025:KER:45246 PW41, and marked Exts.P1 to P36 and MO1 and MO12(a). After completion of prosecution evidence, when the accused were questioned under Section 313 of the Cr.P.C., both of them denied all the incriminating materials brought out against them in evidence. On finding that the accused could not be acquitted under Section 232 of the Cr.P.C., they were called upon to enter their defence and adduce any evidence they may have in support thereof. However, from the side of the accused, no evidence whatsoever has been produced.

6. After trial, the 2nd accused was found not guilty of the charges levelled against him and he was acquitted under Section 235(1) of Cr.P.C. However, the 1st accused was found guilty of offences punishable under Sections 302 and 201 IPC, and he was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 50,000/- (Rupees fifty thousand only) for the offence punishable under Section 302 of the IPC. In default of payment of fine, the accused was ordered to undergo rigorous imprisonment for six months. For offence punishable under Section 201 IPC, the 1st accused was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 10,000/- (Rupees ten thousand only) with a default clause to undergo rigorous imprisonment for three months. Aggrieved by the said judgment of Crl. A. No.1327 of 2023 :5: 2025:KER:45246 conviction and order of sentence passed against the 1st accused, this appeal has been preferred.

7. It was on the strength of the complaint given by one Muhammad Rafi that his brother Sudheer Babu went missing, an FIR was registered at Panniyankara Police Station under Section 57 of the Kerala Police Act for man missing. The said brother of the deceased was examined as PW2. On examination before court, PW2 deposed in the following lines: He and his deceased brother, Sudheer Babu, were residing in the same house. On 05.11.2018, his brother went missing, and hence on 17.11.2018, he lodged a complaint before the Police. His brother used to come to his house occasionally, and that is the reason why there occurred a delay in lodging the complaint. His brother was a regular drinker but not quarrelsome. He is having acquaintance with the accused as they used to visit his house along with his deceased brother. Both the accused were friends of his deceased brother, and they used to visit Mahe together. He was not aware of any issues or quarrels between the accused and his brother. After a few days of lodging the complaint, the police informed him that the dead body of his brother had been found. The dead body of his brother was found around 7 km away from his house. He reached the said place within 10 to 20 minutes of receiving the Crl. A. No.1327 of 2023 :6: 2025:KER:45246 information from the Police. When he reached there, he saw the 1st accused pointing out the dead body to the Police. According to PW2, the belt, garments, and footwear found on the dead body were those of his brother, and hence, he could identify the dead body. When a specific suggestion was put to PW2 by the defence counsel that the accused had no animosity or disputes with the deceased, PW2 admitted the said suggestion. Similarly, PW2 admitted that the railway quarters that situated near Kozhikode railway station, where the alleged incident in this case occurred, is a place where the general public regularly passes through.

8. PW3 is another witness examined by the prosecution. She deposed that the deceased and the 1st accused were her acquaintances. According to her, on the day before Deepawali in 2018, during day daytime, she drank liquor along with the deceased and the first accused by standing near Apsara theatre, Kozhikode. Then the 2nd accused also came there, but he did not drink liquor. Thereafter, she saw the deceased and both the accused leaving together. Later, while she was having a meal, the 1st accused returned alone, looking perplexed. When she asked him what happened, he did not respond. Afterwards, she, along with the 1st accused, went to Kannur by train, where she met one Aneesha, Musthafa, and Rafi at the railway station. According to PW3, she was Crl. A. No.1327 of 2023 :7: 2025:KER:45246 unaware of any dispute or issues between the deceased and the accused in this case. During cross-examination, PW3 asserted that when the deceased left along with the accused in this case, all of them were in a friendly mood. According to PW3, on that day, she was inebriated and she could not say what happened thereafter.

9. Another important witness examined by the prosecution is PW4. According to him, on 27.11.2018, PW2, the brother of the deceased, called him over phone and asked him to come near to the railway quarters. When he reached there, he saw the 1st accused standing inside the railway quarters and describing to the Police on how to exit the railway quarters. The 1st accused also pointed out a decomposed dead body, which was found near the back side compound wall of the railway quarters, covered with an asbestos sheet. PW2 then identified the dead body as his brother's and became distraught. Furthermore, PW4 deposed that he saw the 1st accused telling the Police that he had hit on the head of the deceased using a brick. According to PW4, he witnessed the police taking the 1st accused inside the room of the said quarters. But PW4 did not enter the said quarters and had not seen any brick. Thereafter, he saw the Police preparing an inquest after examining the deceased's body, and he signed the inquest report.

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10. When the nephew of the deceased was examined as PW5 he deposed that he is a signatory to Ext.P4 scene mahazar prepared by the police. According to PW5, he saw the Police recovering a brick after describing the same in the scene mahazar. At the time of effecting recovery, he saw the 1st accused pointing out every matter to the Police. PW5 identified the brick recovered in terms of Ext.P4 mahazar, and the same was marked as MO4. During cross-examination, PW5 testified that when he saw the accused and the Police, they were all near the dead body.

11. The owner of a shop situated near the railway quarters, Kozhikode was examined as PW9. According to him, on 27.11.2018, the Police came to the railway quarters. He deposed that a foul smell had been emanating from that area for several days, and he had assumed it was due to a dead animal, like a dog or something like that. He told the said fact to the investigating officer.

12. When another witness was examined as PW20, he deposed that on 24.12.2018 at around 1 p.m., he saw the Police arriving near the railway quarters, with the 2nd accused. Thereafter, he saw the 2nd accused pointing out the premises. Thereafter, the 2nd accused took a brick and handed it over the same to the police. The 2nd accused also Crl. A. No.1327 of 2023 :9: 2025:KER:45246 pointed out a knife to the police. According to PW20, thereafter, the Police prepared a mahazar and he also signed it. Ext.P18 is the said mahazar. During cross-examination, when PW20 was confronted with a knife, he deposed that the same is the knife taken and handed over by the 2nd accused to the Police, and the said knife is marked as MO10. Moreover, PW20 identified MO4 as the brick recovered by the Police as per Ext.P18 mahazar.

13. PW21 is a witness to another recovery mahazar. On examination before court, he deposed on 24.12.2018, while he was working as a Police Constable in Town Police Station, Kozhikode, he saw the investigating officer recovering a pair of chappal on the strength of the disclosure statement given by the 2nd accused. According to PW21, the said chappal was recovered in the presence of a scientific officer, and when the same was recovered, blood stain was found on the said chappal. According to PW21, he is also an attestor to Ext.P12 seizure mahazar in terms of which the said chappal was recovered. PW21 identified MO8 as the chappal so recovered.

14. The Police Constable attached to Panniyankara Police Station, who registered this case, was examined as PW31. According to him, on 17.11.2018, while he was on GD charge duty, PW2 came with a complaint Crl. A. No.1327 of 2023 :10: 2025:KER:45246 that his brother went missing, and Ext.P2 is the FIS given by PW2. According to PW31, on the strength of the FIS given by PW2, he registered this case by booking an FIR under Section 57 of the Kerala Police Act, and the said FIR is marked as Ext.P22. During cross-examination, PW31 admitted that what PW2 stated was that the deceased went missing for the last two weeks.

15. A crucial witness examined by the prosecution is PW33. According to him, he is having acquaintance with the deceased in this case. Once, there occurred a dispute between one Shoukath and Sudheer. In the said dispute, when he intervened, Sudheer inflicted injuries on his left hand and neck with a blade. Three days after the said incident, he reached Kozhikode, and from there he went to Mahe. It was in the month of November, 2018 he went to Mahe. When went to Mahe by train, one Aneesha, Noufal (A1), Ansar (A2) were also in the train. When they reached Mahe, Noufal (A1) told him that "ചെറുത് സുധീറിൻ്റെ ശല്യം ഇനി ഉണ്ടാകില്ല". Thereafter, the 2nd accused told him that if he provided liquor, he would disclose a happy news to him. Thereafter, he gave one peg of liquor to the 2nd accused and he then told that "ചെറുത് സുധീറിനെ ഞാനും നൗഫലും കൊന്നു പുതപ്പിച്ചു കിടത്തി".

16. Another crucial witness examined by the prosecution is PW36. Crl. A. No.1327 of 2023 :11:

2025:KER:45246 On examination before the court, PW36 deposed that he is having acquaintance with the deceased and the 1st accused in this case. According to him, it was in the month of November 2018, he saw the deceased last. On that day, while he was drinking liquor along with one Faisal by sitting in the railway quarters, the deceased, accompanied by both the accused, came there. Thereafter, there occurred a wordy altercation between the deceased and Faisal. Then he dispersed both of them. Thereafter, he left the quarters. While leaving the quarters, when he turned back, he saw Sudheer and Noufal (A1) entering the room of the said quarters and closing the door. Then Ansar (A2) was roaming here and there. After two days of the said incident, he was arrested in connection with a petty case and he was remanded to judicial custody in the District jail, Kozhikode. On the same day, the 1st accused was also admitted in the said jail. When he asked, the 1st accused said that he was remanded in connection with an Abkari case. After three or four days of the incident, it was heard from the jail that the deceased had taken the 1st accused inside the room of the railway quarters to engage in unnatural sex with the 1st accused. When he asked about the same to the 1st accused, he admitted the same. During cross-examination, PW36 admitted that, other than seeing the 1st accused and the deceased entering the Crl. A. No.1327 of 2023 :12: 2025:KER:45246 room of the railway quarters, he did not see them closing the door. 17. The Circle Inspector of Police who conducted the major part of the investigation in this case was examined as PW40. On examination before court, PW40 deposed as follows: It was on 06.12.2018, he took over the investigation in this case. As part of the investigation, he verified the records of the previous investigation. Thereafter, while making efforts to apprehend the 2nd accused, he got information that the 2nd accused was found in and around Palakkad and Coimbatore. Subsequently, on 24.12.2018, the 2nd accused was found near Olavakkode railway station and he was brought to the Police Station, and his arrest was recorded on the same day at around 12.15. p.m. Ext.P17 is the arrest memo prepared. According to PW40, during interrogation, the 2nd accused made a statement that "അന്ന് ഉപയോഗിച്ച ചെരുപ്പ് തന്നെയാണ് ഇപ്പോഴും ഉപയോഗിക്കുന്നത് എന്നും എൻ്റെ കൂടെ വന്നാൽ മാറ്റിയിട്ടു കട്ട കാണിച്ചു തരാം എന്നും വലിച്ചെറിഞ്ഞ കത്തി കാണിച്ചു തരാം എന്നും പറഞ്ഞു ". The relevant portion of the said disclosure statement given by the 2nd accused was separately recorded and produced before the court. Ext.P30 is the relevant portion of the disclosure statement separately recorded by him. Thereafter, the chappal worn by the accused was taken into custody after being examined by a scientific officer, and on examination, the presence of Crl. A. No.1327 of 2023 :13: 2025:KER:45246 blood was noticed in the chappal, and the said chappal was taken into custody after describing in Ext.P12 seizure mahazar. MO8 series is the said chappal. Thereafter, at about 2.05 p.m., as led by the accused, he reached at an abandoned railway quarters, and the accused told that it was inside the room of the said quarters that the murder was committed. Thereafter, he prepared an observation mahazar, and Ext.P18 is the said mahazar. The door pane used by the accused for concealing the dead body was also seized after describing in Ext.P18 mahazar and thereafter entrusted the said door pane with railway authorities as the same was the property of the railway. Thereafter, the 2nd accused took and produced some broken pieces of a brick from the south-eastern corner of the said railway quarters. Moreover, the 2nd accused also took a knife from the north eastern corner of the railway quarters from inside a bushy area and handed over the same to PW40. According to PW40, the said knife was the knife that was kept in the loin of the deceased at the time of the occurrence of this case, and thrown away by the accused in this case. PW40 identified the MO12 series piece of the brick and knife seized as per Ext.P19 mahazar. PW40 identified MO11 as the door panel, which he had recovered as per Ext.P19. The relevant portion of the confession statement given by the accused and which led to the recovery of the knife Crl. A. No.1327 of 2023 :14: 2025:KER:45246 and brick, and noted in Ext.P19 mahazar, is marked as Ext. P19(a). According to PW40, thereafter, he submitted a report before the court showing the correct name and address of the 2nd accused. Subsequently, he interrogated the witnesses and recorded their statements. Thereafter, he produced all the items seized in this case after describing in Ext.P33 property list. The forwarding note prepared by PW40 for sending the thondi articles recovered in this case for FSL examination is marked as Ext.P32. Thereafter, he produced the 2nd accused before the Court. 18. The Additional Sub Inspector of Police, Panniyankara Police Station, who conducted a part of the investigation in this case, was examined as PW39. On examination before the court, PW39 deposed that he conducted a part of the investigation in this case as instructed by the Sub Inspector of Police, Panniyankara police station. He further deposed that during the course of his investigation, he got information that the 1st accused, who was already remanded in the District Jail in connection with another case, will be released on 27.11.2018. Accordingly, on 27.11.2018 at around 12 p.m., he waited at the premises of the District jail, Kozhikode and when the accused came out of the jail, he took the 1st accused near a transformer installed close to the main gate of the jail and interrogated him. On interrogation, the 1st accused confessed the crime and hence, he Crl. A. No.1327 of 2023 :15: 2025:KER:45246 effected the arrest of the accused, and Ext.P7 is the arrest memo. The confession statement given by the accused was recorded on a laptop with the help of Haris, a Senior Civil Police Officer, who was also with him. Thereafter, the printout of the said confession statement was taken from Kasaba Police Station. In the confession statement, the 1st accused made a disclosure that "എന്നെ കൊണ്ടുപോയാൽ ബോഡി മൂടിവച്ച സ്ഥലം കാണിച്ചുതരാം". On the strength of the said statement given by the accused and as led by the accused, PW39 reached in front of an abandoned railway quarters situated near Kozhikode railway station. On seeing the police, several local people gathered there. Thereafter, he entered the railway quarters and, as led by the accused, subsequently went to the backside of the said quarters. On the south-eastern corner of the said quarters, a dead body was found concealed under an asbestos sheet. The dead body was in a decomposed state. It was the accused who pointed out the dead body to PW39. Immediately, he contacted the defacto complainant in this case, who is none other than the brother of the deceased, and asked him to reach there. Thereafter, he reported the matter to his superior officer. In the meantime, the brother of the deceased arrived and he identified the jeans, belt, and chappal found on the dead body as those of his brother. Thereafter, he prepared an inquest, Crl. A. No.1327 of 2023 :16: 2025:KER:45246 and Ext.P3 is the said inquest report. As the dead body was in a decomposed state, the dress found on the dead body was not removed at the time, but it was removed at the time of postmortem examination. Thereafter, on the basis of the statement given by the 1st accused that "എന്നെ കൊണ്ടുപോയാൽ സംഭവസ്ഥലവും കല്ലും കാണിച്ചുതരാം". PW39 entered the room of the said quarters and prepared a scene mahazar. Ext.P4 is the said scene mahazar. One brick, found at the crime scene, was recovered after describing in Ext.P4 mahazar. MO4 is the said brick. Thereafter, the blood stains found near MO4 were also collected with the help of a scientific assistant. Moreover, a small piece of brick and chappals found at the place of occurrence were also taken into custody with the help of the scientific assistant. Relevant portion of the confession statement given by the accused, which led to the recovery of the brick, and noted in Ext.P4 mahazar, and proved through PW39, is marked as Ext. P4(a). The relevant portion of the confession statement of the 1st accused, which led to the recovery of the dead body, and noted in Ext. P3 inquest is separately marked as Ext.P3(a). According to PW39, thereafter, he produced the 1st accused before the court. The tear sample, tooth, and membrane collected from the dead body were sealed in a box and produced the same before the court, along with a forwarding note for DNA Crl. A. No.1327 of 2023 :17: 2025:KER:45246 examination. As it was revealed that the incident in this case occurred within the limits of the town police station, the records in this case were sent to the town police Station, Kozhikode, for further steps. 19. The Doctor, who conducted autopsy examination of the deceased, was examined as PW37. On examination before the court, she deposed that on 28.11.2018, while she was working as an Assistant Professor and Assistant Police Surgeon in the Forensic Department of Government Medical College Hospital, Kozhikode, she conducted the postmortem examination of the deceased in this case. According to her, when the body was produced for postmortem examination, the history stated was that "missing since 01.11.2018" and the body was partly skeletal. The postmortem certificate issued by PW37 is marked as Ext. P26. According to the doctor, she noted the following antemortem injuries in the postmortem examination:

i) Displaced comminuted fracture on back of left temporo parietal bones with multiple fissured fracture extending from it - as fracture separation into left fronto temporal region and into base of skull;

ii) Fissured fracture on the squamous part of temporal bone con right side into the right orbit Crl. A. No.1327 of 2023 :18: 2025:KER:45246 through the floor of right orbital foss. There were multiple linear fissured fractures with displacement of fragments over both upper and lower margin of orbital fossa, right maxillary bone.

iii)There was blood infiltration along the fracture line over left temp:dro parietal bone and right temporal bone. The soft tissues retained over the right side of skull showed blood infiltration within.

Referring to the antimortem injuries noted in the postmortem examination, the Doctor opined that the death was due to blunt injuries sustained to the head. Moreover, the Doctor confirmed that the fracture noted on the head was antemortem and the same could not be caused by a single fall, as it was a multiple injury. When confronted with MO4 brick, PW37 opined that the injuries noted on the head could be inflicted by an object like MO4. During cross-examination to a definite question put by the defence counsel, PW37 replied that the dead body was estimated to be less than 30 days old. Moreover, the Doctor deposed that she could not say the accurate time of death.

20. The entire episode in this case was unveiled following a complaint lodged by PW2 at Panniyankara Police Station alleging that his brother, named Sudheer, went missing. Evidently, the said complaint was Crl. A. No.1327 of 2023 :19: 2025:KER:45246 filed on 17.11.2018. The oral evidence of PW2 and the documentary evidence adduced in this case further reveal that, in the complaint, what PW2 stated is that, from 05.11.2018 onwards, his brother went missing. Therefore, it can be gathered that PW2 approached the police station with a complaint 12 days after his brother went missing. Consequent to the said complaint, the law was set in motion, and originally, the FIR was registered under Section 57 of the Kerala Police Act for a missing person. Thereupon, on the basis of some leads received, the police suspected the involvement of the 1st and the 2nd accused in this case in the commission of the offence, and thereafter, both of them were booked. Moreover, it is alleged that the body of Sudheer was recovered exclusively based on the disclosure statement provided by the 1st accused, from the compound of an abandoned railway quarters.

21. Undisputedly, when the body was recovered, it was in a decomposed state. The evidence of the Doctor who conducted the postmortem examination reveals that it was partly skeletal. Notably, the evidence adduced in this case reveals that immediately after the detection of the dead body, the police contacted PW2, the brother of the deceased, and, as informed by the Police, he also reached the railway quarters compound where the dead body was located. PW2 identified the belt, Crl. A. No.1327 of 2023 :20: 2025:KER:45246 garments, and footwear recovered from the dead body as belonging to his brother, which led to the definitive identification of the deceased. For further confirmation, the investigating officer arranged for a DNA examination, the results of which confirmed the recovered body to be that of Sudheer.

22. Now the crucial question that requires to be considered is whether the death of Sudheer was an accidental, suicidal, or homicidal one. While considering the said question, it is to be noted that this is a case in which there is no direct evidence to prove the occurrence. However, to address the question regarding the nature of the death, the evidence of the doctor who conducted the autopsy is highly significant. As we have already discussed, three antemortem injuries were noted by the Doctor in the postmortem examination, which include fractures of the skull on both sides of the head. Referring to the injuries noted in the postmortem certificate, the Doctor categorically opined that the death was due to the blunt injury sustained to the head, and the injuries noted could not have resulted from a fall. According to the doctor, the fractures were antemortem injuries and could not have been caused by a single fall, as they were multiple. Though subjected to severe cross-examination, the doctor maintained her position that the injuries she noted, particularly Crl. A. No.1327 of 2023 :21: 2025:KER:45246 those on both sides of the head, could not have been caused by a single fall. A combined reading of the evidence from PW37, the doctor, and the Ext.P26 postmortem report issued by her rules out the possibility of an accidental or suicidal death. Instead, this evidence leads to the unequivocal conclusion that the death of the deceased Sudheer was homicidal.

23. Now, the crucial question that remains to be considered is who caused the death of Sudheer. While addressing the said question, it is to be noted that this is a case in which the prosecution is depending on circumstantial evidence to bring home the guilt of the accused. In Sarad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622], the Hon'ble Apex Court discussed the nature, character, and essential proof required in a criminal case which rests on circumstantial evidence alone and held as under:

(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established;

(ii) 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;

(iii) The circumstances should be of a conclusive nature and Crl. A. No.1327 of 2023 :22: 2025:KER:45246 tendency;

(iv) They should exclude every possible hypothesis except the one to be proved; and

(v) 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.

24. One of the crucial circumstances pressed into service by the prosecution to prove the guilt of the accused is that both the accused had a strong motive to commit the murder of the deceased. The motive alleged by the prosecution is that prior to the incident the deceased Sudheer attempted to engage in unnatural sex with the 1st accused and on another occasion the deceased beat on the face of the 2nd accused at Mahe and enraged by these incidents, both the accused in furtherance of their common intention committed murder of the deceased. Though a motive as stated above was alleged by the prosecution for the commission of the offence, no convincing evidence whatsoever has been produced to prove the incidents which allegedly motivated the accused to commit murder of the deceased. We are not oblivious of the fact that an attempt was made by the prosecution to prove the alleged motive by examining Crl. A. No.1327 of 2023 :23: 2025:KER:45246 PW36. On examination before the court what PW36 deposed is that on a day in the month of November, 2018, while he was drinking liquor by sitting in an abandoned railway quarters along with one Faisal, the deceased, accompanied by both the accused came there and thereafter there occurred a wordy altercation between the deceased and Faisal. According to PW36, upon seeing the same, he intervened and dispersed both of them. Thereafter, he left the quarters. It is pertinent to note that PW36 is having a case that while leaving the railway quarters, when he turned back, he saw Sudheer and the 1st accused entering the room of the said unoccupied quarters and closing the door. It is by relying on the said evidence of PW36, the prosecution tried to establish that the deceased attempted to engage in unnatural sex with the 1st accused, and it was enraged by the same, the 1st accused committed the murder of the deceased. However, we are at a loss to understand how the said feeble evidence of PW36 will help the prosecution to prove the alleged motive. Merely because of the reason that PW36 saw the deceased and the 1st accused entering into a room and closing the said room, it could not be said that it was for unnatural sex. Moreover, the evidence of PW36 itself shows that the deceased and the 1st accused came to the quarters in a very cordial mood, and they entered into a room and closed the door Crl. A. No.1327 of 2023 :24: 2025:KER:45246 without any resistance on the part of either of them. Notably, during cross-examination, PW36 admitted that he did not see anyone closing the room. Consequently, it cannot reasonably be asserted that the first accused fostered animosity toward the deceased on the basis of the latter's alleged attempt to engage in unnatural sex with him. Likewise, the prosecution has failed to adduce any evidence whatsoever demonstrating that on another occasion, the deceased assaulted the second accused, thereby establishing that the second accused maintained an inimical relation with the deceased. Moreover, the evidence of PW2, the brother of the deceased, shows that the accused and his brother were friends, and he was unaware of any issues or quarrels between them. Therefore, we have no hesitation in holding that the prosecution failed to establish any strong motive for the accused to commit the murder. We recognise that proof of motive is not always essential to establish guilt. When there is direct ocular evidence, proof of motive holds little significance. However, in a case relying on circumstantial evidence, proof of motive will certainly form an important link in the chain of circumstances. Anyhow, the prosecution's failure to prove motive alone is not sufficient to acquit an accused if there are other compelling circumstances to prove his guilt.

25. Therefore, now it is necessary to consider the other Crl. A. No.1327 of 2023 :25: 2025:KER:45246 circumstances presented by the prosecution in this case. Another crucial circumstance brought out by the prosecution and relied upon by the trial court to record a conviction is the alleged extrajudicial confession given by the accused. It was by relying upon the evidence of PW33, the prosecution attempted to establish that both the accused had confessed to the crime. According to PW33 in the month of November, the deceased in this case entered into a quarrel with one Shoukath, and on seeing the same, when he intervened, the deceased Sudheer inflicted an injury on his hand and neck with a blade, and the said incident occurred in front of a shop at Mahe. PW33 further deposed that after three days of the said incident, he went to Kozhikode. Subsequently, he again went to Mahe along with one Aneesha, Noufal (A1), and Ansar (A2) by train, and when he reached Mahe, Noufal told him that "ചെറുത് സുധീറിന്റെ ശല്യം ഇനി ഉണ്ടാകില്ല". From the evidence, it is established that 'Cheruth Sudheer' is the nickname of Sudheer, the deceased in this case. In essence, what PW33 deposed is that the 1st accused told him that there will be no further troubles from Sudheer, the deceased in this case. However, the said vague statement allegedly made to PW33 cannot be treated as an extrajudicial confession because in the statement, the 1st accused had not admitted the commission of any offence by him. The said statement is not Crl. A. No.1327 of 2023 :26: 2025:KER:45246 at all inculpatory. The statement made by an accused would amount to a confession only when there is an admission of guilt, and the same must be inculpatory in nature. Moreover, in order to treat a statement as an extrajudicial confession, firstly, the said statement should be qualified as a confession. Therefore, we hold that the statement relied on by the prosecution, as one allegedly given by the 1st accused to PW33, cannot be treated as an extrajudicial confession.

26. Notably, PW33 further deposed that on the same day, while travelling in the train, the 2nd accused told him that if he provided liquor, he would disclose a happy news to him. Thereafter, he gave one peg of liquor to the 2nd accused, and then the 2nd accused told that "ചെറുത് സുധീറിനെ ഞാനും നൗഫലും കൊന്നു പുതപ്പിച്ചു കിടത്തിയിട്ടുണ്ട്". We do agree that the statement will amount to an extrajudicial confession. However, it is pertinent to note that the said extrajudicial confession was made by the 2nd accused, and he is already acquitted in this case. Generally, a confession made by a co-accused is not binding on the other accused. However, Section 30 of the Indian Evidence Act carves out an exception to the said general rule. As per Section 30, when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, Crl. A. No.1327 of 2023 :27: 2025:KER:45246 the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

27. No doubt, in the case at hand, both the accused were tried jointly for the same offence. Moreover, the confession made by the 2nd accused is of a nature which would certainly affect him as well as the 1st accused. Therefore, the said confession assumes some significance as far as the 1st accused is concerned, though it was made by the 2nd accused. However, by a series of judicial pronouncements, it is well settled that the confession of a co-accused is a weak piece of evidence. Secondly, the reliability of an extrajudicial confession always depends upon the credibility of the person to whom it is made. It is established in this case that the 2nd accused made the statement after he and PW33 had both consumed liquor. We do agree that merely because of the reason that PW33 was inebriated at the time when the confession was made is not a reason to discard his evidence. However, in the absence of corroboration, it is unsafe to believe his evidence. Moreover, during cross-examination, PW33 admitted that one Musthafa also heard the matter said by the 2nd accused to him. Even then, no attempt is seen to be made from the side of the prosecution to examine the said Musthafa as a witness. Therefore, we are of the view that the alleged extrajudicial confession made by the 2nd Crl. A. No.1327 of 2023 :28: 2025:KER:45246 accused, who has already been acquitted by the trial court, could not be considered as a strong circumstance to prove the guilt of the 1st accused, especially when the extrajudicial confession of a co-accused is a weak piece of evidence.

28. Another crucial circumstance relied on by the prosecution to connect the accused with the offence alleged in this case is that it was in the company of the accused, the deceased was last seen alive, and the accused failed to offer any plausible explanation as to what happened to the deceased thereafter. It is by relying mainly on the evidence of PW3, which we have discussed earlier, that the prosecution is trying to establish that it was in the company of the accused that the deceased was last seen alive. It is true that on examination before the court, PW3 deposed that she is having acquaintance with the deceased in this case as well as with both the accused. According to her, on the previous day of Deepawali in the year 2018, during the daytime, she drank liquor along with the deceased and the first accused while standing near Apsara theatre. Meanwhile, the 2nd accused also came there, but he did not drink liquor. Thereafter, she saw the deceased and both accused leaving somewhere together. While considering the reliability of the evidence given by PW3 in the above regard, it is pertinent to note that PW3 is a Crl. A. No.1327 of 2023 :29: 2025:KER:45246 witness declared hostile to the prosecution. However, there is no proposition of law that the entire evidence of a hostile witness has to be eschewed from consideration. By a series of judicial pronouncements, it is well settled that the court can very well sift grain from chaff and can act upon those portions of the evidence of the hostile witness which appear to be convincing and reliable. Therefore, we are of the view that there is nothing wrong in acting on the evidence of PW3 that on the previous day of Deepawali in the year 2018, the deceased was found in the company of the accused. The previous day of the Deepawali in the year 2018 fell on 05.11.2018. Therefore, it is gatherable that it was on 05.11.2018, the deceased was last seen alive in the company of the accused. Pertinently, the body of the deceased was recovered only on 27.11.2018. In essence, there is a time gap of 22 days between the date of recovery of the dead body and the date on which the deceased was last found alive in the company of the accused.

29. It is germane to note that this is a case in which there is no exact evidence regarding the date and time of death of the deceased. The Doctor who conducted the autopsy examination, when examined as PW37, also gave a vague explanation that the death might have happened within 30 days of the date of postmortem examination. Crl. A. No.1327 of 2023 :30:

2025:KER:45246 Similarly, the evidence of PW2, the brother of the deceased, reveals that from 05.11.2018 onwards, his brother was found missing. The time gap of 22 days between the date on which the dead body was recovered and the deceased was last seen alive in the company of the accused will seriously affect the reliability of the last seen theory pressed into service by the prosecution. In the case at hand, the time gap between the deceased found alive in the company of the accused and later he was found dead is remarkably long. Therefore, the possibility of any person other than the accused being the perpetrator of the crime also cannot be ruled out. There is no convincing evidence regarding the date and time of death. Even the Doctor, who conducted the autopsy examination, failed to give a convincing opinion regarding the date and time of the death of the deceased. Therefore, the absence of evidence regarding the time of death of the deceased is fatal to this case, rendering the "last seen" circumstance advanced by the prosecution unreliable.

30. One of the main circumstances relied on by the prosecution to prove the guilt of the 1st accused is that it was on the strength of the disclosure statement given by the 1st accused that the dead body of the deceased was recovered. Apart from the evidence of the investigating officer, the prosecution is relying on the evidence of PW2 and PW4 to Crl. A. No.1327 of 2023 :31: 2025:KER:45246 prove that the dead body was recovered, as pointed out by the accused. Out of the two witnesses, PW2 is none other than the brother of the accused, and PW4 is the friend of PW2. During examination before the court, PW2 deposed that on 27.11.2018, the Police contacted him over the phone and informed him that the dead body of his brother was found. Accordingly, when he entered the compound of the railway quarters, the 1st accused was there with the Police. He further added that it was the 1st accused who pointed out the dead body to the police. In the cross-examination, he admitted that when the Police contacted him over the phone, the Police told him that the body of his brother had been detected. A careful scrutiny of PW2's evidence reveals that prior to his arrival at the place from where the dead body was recovered, the police had detected the dead body. Therefore, his evidence that when he reached there, he saw the accused pointing out the dead body to the police cannot be believed. Similarly, the evidence of PW4 also shows that he reached the place of the occurrence as informed by PW2. Thus, it is discernible that PW4 reached the place of recovery after the detection of the dead body by the police. Consequently, the assertion by PW2 and PW4 that they saw the first accused pointing out the dead body to the police lacks credibility.

Crl. A. No.1327 of 2023 :32:

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31. Anyhow, we find no reason to suspect the evidence of the investigating officer that it was on the strength of the disclosure statement given by the 1st accused, and as pointed out by the said accused, the dead body was recovered. The relevant portion of the disclosure statement recorded in Ext.P3 inquest report and proved through the investigating officer at the time of examination before the court is marked in evidence as Ext.P3(a). In view of Section 27 of the Indian Evidence Act, when a fact is discovered based on information given by an accused, so much of that information as distinctly leads to the discovery of the said fact can certainly be proved against him and used as evidence against him. However, in the case at hand, we have already stated that the prosecution failed to prove any other circumstances to prove the complicity of the accused in the commission of the offence. It is a settled legal proposition, evolved through a series of judicial pronouncements, that the mere recovery of a fact under Section 27 of the Indian Evidence Act, without corroborating evidence, is inadequate to form the basis for a conviction.

32. The upshot of the above discussion is that, though the prosecution had highlighted and attempted to bring several circumstances to connect the accused with the offence alleged in this Crl. A. No.1327 of 2023 :33: 2025:KER:45246 case, almost all the circumstances stand not proved. In other words, the prosecution failed to prove a chain of circumstances without missing links. It could not be said that the proved circumstances lead only to the hypothesis of the guilt of the accused and are incompatible with his innocence.

In the result, the appeal is allowed. The impugned judgment of conviction and order of sentence in S.C. No.657/2019 on the file of the Additional Sessions Court-II, Kozhikode, passed against the appellant are set aside, and he is acquitted. He shall be set at liberty forthwith from the prison concerned, if his continued detention is not required in connection with any other case. The Registry shall communicate this judgment forthwith to the Jail Superintendent concerned, where the appellant is undergoing incarceration. Sd/-

                                            P.B. SURESH KUMAR
                                                  JUDGE
                                        


                                                   Sd/-
                                              JOBIN SEBASTIAN
                                                        JUDGE
ncd/ANS

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