Kerala High Court
Nazeer vs State Of Kerala on 3 October, 2024
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
`Crl.A. No.485 of 2019 :1: 2024:KER:72744
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE G.GIRISH
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CRL.A NO. 485 OF 2019
AGAINST THE JUDGMENT IN SC NO.375 OF 2011 OF SPECIAL JUDGE FOR THE
TRIAL OF OFFENCES AGAINST WOMEN AND CHILDREN, THALASSERY.
APPELLANT/ACCUSED:
NAZEER, S/o.HABEEB KHAN, C.NO.928/17,
CENTRAL PRISON AND CORRECTIONAL HOME,
KANNUR - 670004.
ADV. PADMALAYAN. P.P.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
BY SRI.ALEX M.THOMBRA, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
03.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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"CR"
JUDGMENT
Raja Vijayaraghavan. J.
The appellant in this case, Sri. Nazeer, a fish vendor, was arrayed as the accused in S.C.No.375 of 2011 on the file of the Special Judge for the Trial of Offences Against Women and Children (Additional Sessions Judge-I), Thalassery. He has been convicted under Sections 449, 392, and 302 of the IPC for murdering for gain, his neighbour, a 65-year-old spinster. By judgment dated 29.11.2017, the appellant was found guilty and sentenced to undergo imprisonment for life and to pay a fine of Rs.1 lakh under Section 302 of the IPC and in default, to undergo simple imprisonment for one year; to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lakh under Section 392 of the IPC and in default, to undergo simple imprisonment for one year; to undergo rigorous imprisonment for seven years and to pay a fine of Rs.75,000/- under Section 449 of the IPC and in default, to undergo simple imprisonment for six months.
Background Facts:
2. The deceased was residing alone in the Taravad house, numbered VII/143, situated in Eranholy Panchayat. Ext.P15, the scene mahazar, provides a `Crl.A. No.485 of 2019 :3: 2024:KER:72744 picture of the location and surroundings of the home of the deceased. The mahazar reveals that the house faces east, with a courtyard on the eastern side.
A pathway, measuring 122 cm in width and 14 meters in length, extends eastward from the house, leading to a small water channel. Approximately 12 meters to the west, beyond the western boundary wall, is the residence of Srinivasan, a close relative of the deceased. About 50 meters to the south lies the house of Kunjalu, the mother-in-law of the appellant. The house of Pramod (PW1), the nephew of the deceased, is also nearby.
3. For 15 years prior to her death, it was the practice of the deceased to live in her house during the daytime and spend the night in the house of Pramod (PW1), the son of her sister, located nearby. Pramod, Jisha P. (PW2), and PW1's mother would keep her company. As usual, on the morning of 31.10.2010, at approximately 7:00 a.m., the deceased left PW1's residence.
4. The prosecution alleges that between 11:30 a.m. and 12:00 p.m. on the same day, K.K. Sasi (PW6), a newly elected member of the VII Ward of Eranholy Grama Panchayat, along with Babu (CW10), visited Nalini's house to invite her to the swearing-in ceremony scheduled for the following day. Despite calling Nalini's name repeatedly, there was no response, though the front door was lying open. They then proceeded to the house of PW1, located nearby, and informed him that Nalini had not answered.
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5. At around 12:30 p.m., PW1 went to Nalini's house to check on her. To his shock, he discovered Nalini lying face down on the floor. Immediately, he called Sasi and Babu by phone. He also alerted his relatives, including his wife Jisha, Kamala (PW20), and Premaja, who all rushed to Nalini's house. They found that her clothes were soaked with urine. As Nalini had been suffering from diabetes and high blood pressure, they initially believed she had fallen unconscious due to her medical conditions. They lifted her, changed her clothes, and requested PW6 to summon a doctor.
6. While trying to remove her blouse, they noticed that Nalini's gold chain was missing. Within ten minutes, Dr. Viswanathan (PW16), the Medical Officer, "Sreyas Hospital", arrived at the scene. After examining Nalini, he opined that it was likely that she had died four hours before his examination. The relatives also noticed that a bangle weighing approximately one sovereign and Rs.2,000/- in cash were missing.
Registration of Crime and Investigation:
7. The police were promptly notified, and based on the information provided by PW1, Ext.P19 FIR was registered as Crime No.1253 of 2010 at Tellicherry Police Station by PW27, the Sub Inspector of Police, for offences under Sections 302 and 392 of the IPC.
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8. The investigation was taken over by PW28, the Circle Inspector of Police, Thalassery. He arrived at the scene, conducted the inquest, and prepared Ext.P2 inquest report. Trace evidence was collected from the fingers and neck using cellophane tape. The clothes found at the scene were seized and produced before the court as Material Objects MO's 5 to 15. The body was then sent for postmortem, which was conducted by PW15. During the examination, PW15 noted a pressure abrasion around the neck, except for a discontinuity of 7cm on the left side of the back. Additionally, pieces of plantain mixed with a brownish fluid were found in the stomach. The doctor concluded that the cause of death was ligature strangulation. Ext.P15, the scene mahazar, was prepared on 01.11.2010.
9. On 02.11.2010, at 11 a.m., the appellant was arrested as per Ext.P20 arrest memo. At the time of the appellant's arrest, MO16 mobile phone and a sum of Rs.3,700/- were seized from his possession. Upon interrogation, the appellant allegedly disclosed that the gold ornaments stolen by him were sold to Sarada Jewellery situated on the main road in Thalassery. Based on this disclosure, the appellant led the police to Sarada Jewellery, where he allegedly pointed out Rajagopalan (PW7), an employee of the jewellery store. PW7 is said to have produced a gold chain and bangle sold by the appellant on 31.10.2010. PW7 further explained that the gold had been annealed to remove dirt, for which `Crl.A. No.485 of 2019 :6: 2024:KER:72744 purpose the chain was broken into two pieces and the bangle into three. The annealing process caused the gold to turn black. A locket weighing approximately 1.250 grams was also seized from the jewellery store, allegedly sold by the appellant. Ext.P7 is the mahazar prepared by the investigating officer at the time of the gold's seizure, and Ext.P7(a) is the relevant portion of the disclosure statement. PW7 stated that the gold was purchased for Rs.35,600/-, which was handed over to the appellant.
10. The appellant further confessed that the shawl used for strangling the deceased had been concealed at his house. Acting on this disclosure, the appellant was taken to his residence, bearing No. V/412 in Kudakalam Laksham Veedu Colony, where MO18 shawl was seized from under the sofa cushion in the main room, as per Ext. P5 mahazar.
11. The prosecution further alleges that upon interrogation regarding how the appellant had used the money obtained from selling the gold ornaments, the appellant disclosed that Rs.27,000/-, being part of the sum received from Sarada Jewellery, had been entrusted to his wife, Rajeena (PW24). Based on this statement, Rs.5,500/- was seized from PW24 as per Ext. P17 mahazar. The appellant was subsequently produced before the jurisdictional Magistrate and remanded to judicial custody.
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12. On 12.11.2010, the appellant was again taken into custody and questioned regarding the disposal of the remaining amounts. He led the police to PW24, Rajeena, who revealed that Rs.2,000/- had been given to Leela M. (PW10), the landlord of the house in which they were residing in the Laksham Veedu Colony, towards arrears of rent. This amount was seized from PW10 on 12.11.2010, as per Ext. P8 mahazar. On 13.11.2010, based on the appellant's disclosure, Rs.5,000/- was seized from Sunil Kumar (PW11), as per Ext. P9 mahazar. On 14.11.2010, Rs.17,500/- was seized from Chandran (PW13), allegedly handed over by PW24 to settle previous debts. In the meantime, PW26, the Assistant Director, Biology, FSL Lab, furnished Ext.P18 report, wherein it is mentioned that fiber found in cellophane tapes taken from the left palm, and right palm were similar to those contained in MO18 shawl recovered from the house of the appellant as per Ext.P5 mahazar. Upon the conclusion of the investigation, the final report was submitted to the Judicial Magistrate of the First Class, Thalassery.
Committal:
13. After following the procedure, the case was committed to the Court of Session. The case was later made over to the Court of the Special Judge for Trial and Disposal.
`Crl.A. No.485 of 2019 :8: 2024:KER:72744 The Court Charge:
14. The accused was called upon to answer the following court charge:
The accused on 31.10.2010 watched the movements of Nalini, D/o. Kunhiraman, residing in Noonnumpurath hose at Eranholi by sitting on the ladder situated at a distance of 19 meters away from house No. 143 of Ward VII of Eranholi Panchayat, where deceased Nalini was residing with an intention to kill her and committing robbery of gold chain worn by her and the cash in her possession and when Nalini entered the house on that day at 7.05 a.m., the appellant trespassed into the house of Nalini and committed murder by strangling using a shawl around her neck in the dining room of that house. The accused is stated to have committed theft of a gold chain with locket worn by the deceased and a gold bangle kept in her purse and thereby committed the offence punishable under Sections 302, 449 and 392 of the IPC.
The evidence let in:
15. The prosecution examined PWs 1 to 28 to prove its case and through them, Exts.P1 to P25 were exhibited and marked. Material Objects were produced and identified as MOs 1 to 22. After the close of the prosecution evidence, the incriminating materials were put to the accused under Section 313 of the Cr.P.C. He emphatically denied the circumstances brought out against him and maintained his innocence. On finding that the accused could not be `Crl.A. No.485 of 2019 :9: 2024:KER:72744 acquitted under Section 232 of the Cr.P.C., he was called upon to enter his defence. No evidence was adduced by the defence.
The Findings of the Trial Court:
16. The learned Sessions Judge, after evaluating the evidence let in, came to the following conclusions, which were found to be convincing enough to arrive at a finding that the accused had trespassed into the house of the deceased and had murdered her by strangling with a shawl and that he had robbed.
(a) The presence of the accused in and around 7.30 a.m., on 31.10.2010, as spoken to by PW22.
(b) The deceased had died of strangulation which according to the evidence of PW16 could have happened four hours prior to 12.30 p.m. on 31.10.210.
(c) The recovery of MOs 1, 2, and 4 gold ornaments belonging to the deceased based on the disclosure statement given by the accused.
(d) The recovery of MO 18 shawl used for strangling the deceased based on the disclosure statement given by the accused.
(e) The recovery of cash from PW11, PW10, and PW13 which was paid by `Crl.A. No.485 of 2019 :10: 2024:KER:72744
the appellant and his wife allegedly from the proceeds of the sale of the gold ornaments.
(f) Presence of fibers from the shawl in the palms and fingers of the deceased as is brought out from Ext.P18 report.
Submissions on behalf of the appellant:
17. Sri. Padmalayan, P.P., the learned counsel appearing for the appellant, submitted that the appellant is totally innocent of the allegations levelled against him. The finding of guilt was arrived at by the learned Sessions Judge without properly appreciating the evidence. It is pointed out that the learned Sessions Judge has erred in coming to the finding that the prosecution has succeeded in proving all the circumstances in a conclusive manner to arrive at the finding of guilt. According to the learned counsel, the house of PW24, wife of the appellant was in close proximity to that of the deceased and PW22, Sreejan, and in that view of the matter, the learned Sessions Judge ought not have reckoned that the mere presence of the appellant near his own house would establish his role as perpetrator of the murder. It is further submitted that the learned Sessions Judge has erred in placing implicit reliance on the evidence of recovery of the gold ornaments and the shawl, despite the fact that numerous inconsistencies were brought out by the defence. Relying on the principles laid `Crl.A. No.485 of 2019 :11: 2024:KER:72744 down in Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh1 and in Subramanya v. State of Karnataka2, it is urged that the prosecution had failed to comply with the requirement of law, before accepting the evidence of discovery. The absence of the authorship of concealment in the disclosure statement, the non-recording of the exact words attributed to the accused, and the failure to prove the contents of the Mahazar, are all highlighted by the learned counsel to contend that the learned Sessions Judge was not justified in placing reliance upon the circumstance of recovery of ornaments and the clothes. It is further submitted that the report of the Scientific Expert that the fiber found from the cellophane tape to be similar to the fibers found in the shawl would not advance the case of the prosecution as there is no convincing evidence that the recovery of the shawl was effected in accordance with law. Submissions of the Public Prosecutor:
18. Sri. Alex M. Thombra, the learned Public Prosecutor submitted that the incriminating circumstances relied on by the learned Sessions Judge established beyond any semblance of doubt, that it was the appellant who had committed the heinous act. The recovery evidence of the ornaments and the clothes at the instance of the appellant was also highlighted as a strong piece of evidence to link the appellant with the crime. Reliance is placed on the 1 [2022 SCC OnLine SC 1396] 2 [2022 SCC OnLine SC 1400] `Crl.A. No.485 of 2019 :12: 2024:KER:72744 observation in Joseph v. State of Kerala3, and in Padala Veera Reddy V. State of Andhra Pradesh4, and it is argued that the chain of circumstances cumulatively and unequivocally points towards the guilt of the appellant. Our Evaluation:
19. The finding of guilt of the appellant is grounded entirely in circumstantial evidence. Before proceeding to analyze and assess the circumstances that have influenced the decisions of the learned Sessions Judge, it would only be appropriate to refer to the precedents that may provide guidance on the handling and evaluation of cases based on circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtra5, a Three-Judge Bench of the Apex Court has laid down five golden principles that constitute the "panchsheel" in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobade v. State of Maharashtra6, it was opined that 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. Thereafter, the Bench proceeded to lay down that the facts so established should be consistent only with the hypothesis of the 3 [AIR 2000 SC 1608] 4 [AIR 1990 SC 79] 5 [(1984) 4 SCC 116] 6 [(1973) 2 SCC 793] `Crl.A. No.485 of 2019 :13: 2024:KER:72744 guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that 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. The very same principles were reiterated in Padala Veera Reddy (supra).
20. We shall now endeavor to determine from the evidence whether the circumstances from which the conclusion of guilt has been drawn have been fully and conclusively proved and whether those circumstances are sufficient to connect the appellant to the crime. It is essential that the conscience of the Court is satisfied that the various circumstances highlighted by the prosecution in the chain of events have been clearly established. This chain must be complete and unbroken, ruling out any reasonable likelihood of the innocence of the appellant. In conducting this exercise, we shall ensure not to allow suspicion to substitute for legal proof and avoid being influenced by emotional considerations, however compelling they may be, in place of objective evidence.
`Crl.A. No.485 of 2019 :14: 2024:KER:72744 Cause of Death:
21. There cannot be any dispute that the death of the deceased was a case of homicide. PW16, the Medical Officer attached to the Sreyas Hospital tendered evidence that he had examined the deceased at about 12:30 p.m. on 31.10.2010 and she was found to be dead with a strangulation mark around her neck, with her tongue protruding outside. He had stated in his evidence that the death would have occurred 4 hours prior to the examination of the body by him. This assertion made by the Doctor has not been challenged. If that be the case, death would have happened between 8:00-8:30 a.m., on 31.10.2010. PW15, the Professor of Forensic Medicine and Police Surgeon, Medical Sciences Academy, Pariyaram gave evidence that the cause of death of the deceased was due to ligature strangulation. Thus we hold that the death of Nalini was a case of homicide and that it was due to ligature strangulation. Presence of the accused in and around the house of the deceased:
22. The first circumstance relied on by the learned Sessions Judge to link the appellant with the murder is his alleged presence in and around the scene of the crime on 31.10.2010. Sri. Pramod (PW1) has stated in his evidence that Nalini left his house at 7.00 a.m. It was when PW6, the Ward Member told him about the fact that Nalini was not responding to his call at 11:30 a.m., that `Crl.A. No.485 of 2019 :15: 2024:KER:72744 he had gone to the house of Nalini at about 12:30 p.m. to enquire and he found Nalini lying on the floor. The prosecution has examined Mohammed Ali (PW9), the employer of the accused to bring in evidence that the accused had come late on 31.10.2010. PW9 stated that normally the accused comes to his shop for work at 6:30 a.m. They go to the market to buy fish and return back at 7:30-8:00 a.m. Out of the said fish, some fish would be taken by the appellant for the purpose of sale in his M80 Moped. He returns back at about 11:30 a.m.-12:00 p.m. (noon). Thereafter, they go to the Chomba Market to buy fish and return back to the shop. On 30.10.2010, the appellant and the witness had gone to the Chomba Market. On the next day, he came only at 7:30 a.m. When asked about the delay, the appellant stated to him that he had slept off.
They went together to sell fish and returned back at 12:00 noon. The appellant was asked to unload some furniture, near the house of the witness. He went to Chirakkara for that purpose. At about 1:30 p.m., the accused returned back. Thereafter, they both went to the Chomba Market to purchase fish and returned back only at 4:00 p.m. Later in the day, he came to know about the murder of Nalini. On the next day, the appellant came at 6:30 a.m., took the fish, and went for sale. It was on 02.11.2010, that he came to know that the accused was arrested. In cross-examination, he stated that the appellant had joined his shop only about 3-4 months back. He also stated that he did not call the appellant over the phone when he was late on 31.10.2010.
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23. The next witness who speaks about the appellant and his presence near the scene of the crime is K. Sreejan (PW22). In his evidence, he stated that he is an autorickshaw driver and resides on the rear side of Nalini's house. He admitted that the deceased was his father's sister. On 31.10.2010, at about 4:45a.m., he went to distribute newspapers. At 7:30 a.m., he returned back and as usual, walked through the field in front of the house of the deceased to reach his home, he saw the accused coming from the opposite side. He deposed that he took his auto and went for his usual ride. At 10:00 a.m., he came back and had breakfast. His wife had been elected as the Panchayat President and her swearing-in was scheduled to be held on the following day. PW6, Sasi, one Vijith and himself went together to invite people for the swearing-in-ceremony. His testimony as to what had transpired thereafter is in tune with what was started by PW6. He stated that he was having previous acquaintance with the appellant, as he is the son-in-law of Kunjalu, his neighbor. He stated that the accused had crossed him and had gone to Nayanar Road, where his house is situated. He stated that he was an attestor to the Scene Mahazar. In cross-examination, he stated that the appellant uses the same public pathway and that he comes across the appellant very often. He stated that his residence is situated about 10-15 meters away from the house of the deceased. From the above evidence, it is apparent that the Investigating Officer had zeroed in on the involvement of the appellant based on the information furnished by PW22.
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24. While evaluating the evidence of the above witnesses, one cannot fail to notice that the accused had only a half hour window to commit the offence and that is from 7:00 a.m. to 7:30 a.m. It was at 7:00 a.m. that Nalini had gone to the Tarwad house from the home of PW1 and it was at 7:30 a.m. that PW22 had seen him walking towards Nayanar Road. This evidence is corroborated by PW9, the employer of the accused. This evidence has to be tested with the evidence of PW16, who examined the deceased at 12:30 p.m. He stated that the deceased died about 4 hours prior to him examining her. If that be the case, the death would have been at 8:30 a.m. as per the prosecution case. The prosecution has not attempted to explain this aspect while the doctor was in the box or through the evidence of the Forensic Surgeon who conducted the postmortem later. It has come out in evidence that there are several houses in the vicinity including that of PW1 and Sreenivasan. The fact that Nalini was lying dead in her house was noticed only at 12:30 p.m. by PW1. This discrepancy in the evidence let in by the prosecution would create some doubt in the case set up by the prosecution. In this context, it will be relevant to advert to the evidence of the jewellery salesman who was examined as PW7. If his evidence is to be believed, the accused reached his showroom at 12:30 p.m. for selling the gold robbed from the body of the deceased. This will not tally with the evidence of PW9 as he says that the accused was sent to Chirakkara to unload the furniture at Chirakkara and that he had returned back at 1.30 p.m. The witness `Crl.A. No.485 of 2019 :18: 2024:KER:72744 has no case that the accused had not complied with his directions as ordered. Immediately thereafter, the accused had gone with PW9 to Chomba to purchase fish. No investigation appears to have been carried out to ascertain the possibility of the accused going to the jewellery shop on his way to Chirakkara to dispose of the gold and obtain the cash from the jewellery. PW1 also stated in his evidence that the accused had come to their residence at 11:30 a.m on the day that the murder took place and later in the evening. His wife who was examined as PW2 also stated that the accused had come to their house after the incident. We are of the view that the mere fact that PW22, a near relative of the deceased, had occasion to see the appellant on his way to Nayanar road cannot in any way be termed as an incriminating circumstance. At any rate, it cannot be said with absolute certainty that the death of the deceased would have taken place during the time period between 7:00 a.m and 7:30 a.m on 31.10.2010. Recovery evidence of MO1, MO2 and MO4 Gold ornaments:
25. The next major circumstance is the recovery of MO1, MO2, and MO4 gold ornaments from Sarada Jewellery on the strength of the disclosure statement given by the accused. The records reveal that the appellant was arrested on 02.11.2010 at 11:00 a.m., as per Ext. P20 arrest memo. At the time of his arrest, MO16 mobile phone and a sum of Rs.3,700/- were seized from his possession. Upon interrogation, the appellant is stated to have disclosed that the `Crl.A. No.485 of 2019 :19: 2024:KER:72744 gold ornaments were sold to Sarada Jewellery located on the main road in Thalassery.
26. It is striking to note that in the disclosure statement given by the appellant, there is no mention that the gold was sold by him. Nevertheless, the prosecution case is that as pointed out by the appellant, he was taken to Sarada Jewellery, and he is stated to have identified PW7, Rajagopalan, an employee of the shop. The Mahazar reveals that the chain and the bangle had been broken into pieces and annealed to remove dirt. The colour of the gold had changed to black due to smoke and heat. MO4 locket, however, is in the same state and condition.
27. PW7 stated that the jewellery shop was owned by a person named Ramesh Kumar, who, incidentally, has not been cited as a witness. He stated that the accused had come to the shop on 31.10.2010, at about 12:30 p.m. According to PW7, he was working as a salesman at that time. The accused approached him with a view to sell a bangle, chain, and locket. PW7 tested the gold to ascertain whether it was genuine and noticed, as per his testimony, that the bangle contained the seal of 'Sarada Jewellery,' which according to him, is the rising sun. Since the ornaments carried the shop's seal, PW7 agreed to purchase them. The appellant is alleged to have told PW7 that his mother was ill and needed to be taken to the hospital in Mangalore, for which he urgently required `Crl.A. No.485 of 2019 :20: 2024:KER:72744 money. After annealing and weighing the gold ornaments, they were found to weigh approximately 24 grams. A sum of Rs.35,000/- was handed over to the appellant immediately, towards the price of the gold. PW7 admitted that the appellant's address and phone number were obtained before handing over the money. He recalled that the name of the accused was Naseer and his house name was Rajeena Manzil. On 2.11.2010, the appellant was brought to the shop by the police. PW7 was informed by the police that the appellant was the murderer and was asked to hand over the gold sold by him. The chain had been broken into two, and the bangle into three pieces. The gold was dark in colour, as it had been entrusted to the goldsmith to work on it. PW7 identified the gold ornaments as those handed over by the appellant on 31.10.2010. PW7 further stated that when the police came to recover the gold, Gopinathan (CW19) and Vasu (CW20) were present in the shop. During cross-examination, it was brought out that PW7 was not a permanent employee of the shop and had since left his employment. He also revealed that CW19 was not a permanent employee either. PW7 pleaded ignorance when asked whether the shop maintained a stock register, and stated that only the owner could provide such information. When old items are brought for sale, purchase bills are usually given, as they are required for submission to the Sales Tax authorities. PW7 again pleaded ignorance when asked whether the purchase vouchers were stored in the jewellery shop. On 31.10.2010, the owner, Ramesh Kumar, was not present in `Crl.A. No.485 of 2019 :21: 2024:KER:72744 the shop, and the keys had been brought by his children. PW7 admitted that although old gold was purchased, it was normally done only when the person was known. In the case of the accused, he was not a known person. PW7 explained that the gold was purchased because the bangle bore the seal of the shop. However, he acknowledged that the seal was not present on the chain and locket. He also added that the police had spoken to his employer on at least three occasions. The pieces of the gold bangle were handed to the witness, and he was asked to show the identification mark or seal of the shop. However, the witness was unable to trace it. Only some unclear letters were seen imprinted. He identified the type of bangle as "Thai Vala" and the chain as "Oraal Mathram." PW7 further stated that before handing over the sum of Rs.35,000/-, he did not seek concurrence from the shop owner. He confirmed that books and registers were maintained to show the sale and purchase of gold. When the police came to the shop, the ornaments were stored in the drawer, and in addition to him, Sri Vasu, the owner's car driver, was present. PW7 also mentioned that the name and address of the appellant had been written down on a piece of paper. He stated that while money was generally not kept in the shop, on 31.10.2010, 2-3 sovereigns were sold, and the amount from that sale was handed over to the appellant. PW7 denied the suggestion that his employer was in the habit of purchasing stolen gold, and denied the suggestion that it was under police pressure that he handed over the gold kept in stock to falsely implicate the `Crl.A. No.485 of 2019 :22: 2024:KER:72744 accused in the case. During re-examination, PW7 was asked whether bills were provided to customers. He replied that bills were given only to customers who specifically requested them, and for others, only the details of the gold were written on a piece of paper.
28. Gopinath P.N. (PW8) is another employee of the jewellery shop, examined by the prosecution to corroborate the claim that the appellant had sold gold to Sarada Jewellery on 31.10.2010. He stated that the accused came to the shop between 12:00 p.m. and 12:30 p.m. on 31.10.2010, intending to sell a chain, locket, and bangle. On inspection, the bangle was found to have been purchased from their shop, they decided to buy the jewellery. PW8 confirmed that they obtained the appellant's phone number, name, and address. During cross-examination, it was revealed that the appellant was not known to PW8 before this incident. He admitted that he had left his employment at the shop five years earlier. PW8 stated that the shop owner visited daily and that on 31.10.2010, Babu and CW20 were absent. PW8 admitted that gold brought by strangers was not usually purchased and that no copy of the seller's ID was obtained. He clarified that only the owner would know where the stock registers, purchase bills, and bill books were kept. He added that it was the owner who set the purchase price when old gold was brought for sale. PW8 stated that the rising sun was the seal of the shop, and when the bangle was handed over, the `Crl.A. No.485 of 2019 :23: 2024:KER:72744 seal was only feebly visible. He was unaware of whether a bill was issued for the items purchased. Regarding 31.10.2010, PW8 admitted that although it was a Sunday, the shop had been open. He confirmed that the shop owner, Ramesh Kumar, was present when the police came to recover the gold on 2.11.2010, and it was the owner who handed the gold to the Circle Inspector. PW8 denied the suggestion of the defence that it was under police pressure that the gold, unrelated to the crime, had been handed over to implicate the accused. He further admitted that the jewellery shop was situated just in front of the Traffic Police Station, approximately 25 meters away. During re-examination, PW8 reiterated that it was the owner who had handed the gold to the police on 2.11.2010. He also stated that the shop's seal was not always visible on the ornaments. When looking through a lens, he could only discern "RR" on the ornament in question.
29. On careful evaluation of the testimonies of both PW7 and PW8, it becomes apparent that their specific case is that they were part-time employees of the jewellery shop on 31.10.2010, with the owner, Ramesh Kumar, playing a more active role in the business. Both witnesses confirmed that the accused was not known to them prior to this transaction. They admitted to having obtained information about the identity of the accused including his name and address. The alleged sale occurred just hours after the murder, at a jewellery shop located `Crl.A. No.485 of 2019 :24: 2024:KER:72744 only 25 meters from a Police Station. Furthermore, their only justification for purchasing the gold from a stranger is that there was the seal of jewellery on the bangle, but the said repeated assertion of the witnesses were found to be untrue when they were cross-examined. The ornaments had been cut into pieces and it had been annealed making it dark and smoky. None of the relatives had also stated in the earlier statements that a locket was attached to the chain. Both PW7 and PW8 acknowledged that the shop maintained registers, vouchers, and bills for old gold transactions. However, despite the sale of gold worth Rs.35,000/- on a Sunday, no registers or documentation were produced by the prosecution to support the transaction. There are also serious discrepancies between the statements of PW7 and PW8 regarding the presence of the shop owner on 2.11.2020. While PW8 stated that it was the owner who handed over the gold, PW7 testified that he was the one who did so. We are of the view that in view of the strong circumstances highlighted by the prosecution to doubt the version of the witnesses, the absence of documentary evidence and the non examination of the owner who had actually handed over the gold as per the version of PW8 would make the recovery suspicious. The fact that the jewellery shop was situated close to the Police Station, and the timing of the sale coupled with the evidence of PW1 that the accused had been in his house at 11:30 a.m. to sell fish and that of PW9 that the accused was with him at least till 12 noon and then he was sent on an errand makes the version of the prosecution highly `Crl.A. No.485 of 2019 :25: 2024:KER:72744 improbable.
30. There is another reason to doubt the recovery of gold ornaments from Sarada Jewellery. Ext.P7 is the recovery mahazar from which it can be seen that the attestors to the mahazar are none other than PW8, another employee of the shop and a certain P.K. Vasu, who according to PW7 and PW8, is the driver of the Jewellery. P.K. Vasu has not been examined as a witness. In the Mahazar, it is stated that the disclosure was made by the accused, while at the Office of the Circle Inspector of Police on 2.11.2010. The witnesses could not have been present when the confession statement was given by the accused. The relevant portion of the disclosure statement, which has been marked as Exhibit P7(a), reads as follows:
"സ്വർണമാലയും സ്വർണ വളയും തലശ്ശേരിയിലുള്ള ഒരു ജ്വല്ലറിയിൽ വിറ്റു. എൻ്റെ കൂടെ വന്നാൽ ജ്വല്ലറിയും വാങ്ങിച്ച ആളെയും ഞാൻ കാണിച്ചു തരാം."
What emerges from the evidence of the investigating officer is that the appellant/accused stated before him while he was in custody that ornaments have been sold and the accused is alleged to have volunteered to take the Investigating Officer to enable him to discover the place. This statement does not indicate or suggest that the appellant/accused indicated anything about his involvement in the selling of the gold.
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31. In State of Rajasthan v. Bhup Singh7, the Apex Court has observed the following as the conditions prescribed in Section 27 of the Evidence Act, 1872 for unwrapping the cover of the ban against the admissibility of the statement of the accused to the police (1) a fact should have been discovered in consequence of the information received from the accused; (2) he should have been accused of an offence; (3) he should have been in the custody of a police officer when he supplied the information; (4) the fact so discovered should have been deposed to by the witness. The Court observed that if these conditions are satisfied, that part of the information given by the accused which led to such recovery gets denuded of the wrapper of prohibition and it becomes admissible in evidence.
32. The aspect which this Court has to consider in the present case is whether these recoveries have been made in accordance with law and whether they are admissible in evidence or not, and most importantly, the link with and effect of the same vis-a-vis the commission of the crime. At this juncture, it would be profitable to bear in mind the observations of the Apex Court in Subramanya v. State of Karnataka (supra), wherein the Apex Court has delineated the principles that are to be borne in mind by the Court while confronted with the question of admissibility of recovery effected at the instance 7 [ (1997) 10 SCC 675] `Crl.A. No.485 of 2019 :27: 2024:KER:72744 of the accused. It was observed as follows in paragraph Nos. 77 and 78 of the judgment:
"77. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.
78. If, it is say of the investigating officer that the appellant-accused while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes, etc. then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence, etc. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other `Crl.A. No.485 of 2019 :28: 2024:KER:72744 article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or bloodstained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter." ( emphasis supplied ) The fact that the witnesses to the doubtful recovery are the employees of the Jewellery shop itself makes the recovery suspect.
33. In Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh8, the principles were clarified further and it was observed as under:
"56. The requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the 8 2022 SCC OnLine SC 1396 `Crl.A. No.485 of 2019 :29: 2024:KER:72744 trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW7, Yogendra Singh is that he has not proved the contents of the discovery panchnama and all that he has deposed is that as the accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh.5). There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses though examined yet have not said a word about such discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place. ( emphasis supplied) xxxxxx xxxxx xxxx xxxxx
70. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama (Exh.5), the trial court as well as the `Crl.A. No.485 of 2019 :30: 2024:KER:72744 High Court was not justified in placing reliance upon the circumstance of discovery of weapon
71. If it is the case of the prosecution that the PW2, Chhatarpal Raidas, s/o Rameshwar Raidas had acted as one of the panch witnesses to the drawing of the discovery panchnama, then why the PW2, Chhatarpal Raidas in his oral evidence has not said a word about he having acted as a panch witness and the discovery of the weapon of the offence and blood stained clothes being made in his presence. The fact that he is absolutely silent in his oral evidence on the aforesaid itself casts a doubt on the very credibility of the two police witnesses i.e. PW6 and PW7 respectively."
34. In the case on hand, when the Investigating Officer was examined, he merely stated that the accused while in custody furnished a statement and nothing more. No witnesses were available at the time, when the alleged disclosure was made by the appellant. The Investigating Officer has also not mentioned that he had procured the presence of independent witnesses of the locality to witness the search. As held by the Apex Court, in order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a mahazar was drawn up as the accused was willing to point out the place where `Crl.A. No.485 of 2019 :31: 2024:KER:72744 the jewellery was sold. Thus, in the absence of exact words, attributed to the appellant, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama (Ext.P5), by examining independent witnesses no reliance could be placed on the circumstance of discovery of gold.
35. Another circumstance is with regard to the identification of the recovered ornaments by PWs 1, 2, Kamala K.P. (PW20) and Premaja (PW21). All these witnesses identified the ornaments as that of the deceased when the same was shown to them. It is pertinent to note that the witnesses in their earlier statement had no case that the chain had a locket attached. It has come out in evidence that MO1 and MO2 had been broken down into pieces, annealed and had lost its colour. It was black in colour. None of the witnesses had given any specific characteristics of the jewellery in their earlier statements. After recovery of the gold the transformed ornaments were shown to the witnesses and they admitted that the same belonged to the deceased. A Division Bench of this Court in State of Kerala v. Gireesh Kumar9 relying on the principles laid down by the Apex Court in Dakkata Balaram Reddy and another v. State of Andhra Pradesh10 and Makrand Singh and others v. State of Madhya Pradesh11 and also the Kerala Police Manual, 1969 had deprecated the practice followed by 9 [2024 KHC OnLine 571] 10 [2023 SCC OnLine SC 474] 11 [2019 (3) SCC 770] `Crl.A. No.485 of 2019 :32: 2024:KER:72744 the investigating agency of displaying the recovered articles directly to the witness and seeking their outright confirmation, and it was held that it is not reliable or trustworthy. It was observed that identification of gold ornaments must be done by mixing them with similar articles and the witnesses should be asked to identify them. Such a course of action will ensure the veracity of the identification and also makes the statements emanating therefrom more reliable. It was also observed that though the Kerala Police Manual, 1969 envisages such a course, the same has apparently not been adhered to by the police. In that view of the matter, the evidence tendered with respect to the recovery of MOs1, 2 and 4, we conclude that the prosecution has not been able to convincingly prove beyond doubt the recovery in accordance with law. Recovery of the Shawl and the scientific evidence:
36. The next circumstance is the recovery of a shawl based on Ext.P8(a) disclosure statement at the instance of the appellant. Ext.P5(a) contains the relevant portion of the disclosure statement provided by the accused. The said statement reads thus:
"ഷാൾ വീട്ടിൽ ഒളിപ്പിച്ചു വച്ചിട്ടുണ്ട്. എന്നെ കൂട്ടി കൊണ്ട് പോയാൽ അത് എടുത്തു തരാം."
The witnesses to the recovery are Sri.K.K. Sasi (PW6) and one K. Rajesh, who was not examined before Court. The prime prosecution witness was made the `Crl.A. No.485 of 2019 :33: 2024:KER:72744 attestor to the mahazar. The principles laid down above insofar as MOs 1, 2 and 4 apply on all fours to the recovery of shawl as well. He was not present when the accused allegedly made this disclosure. The Investigating Officer also did not ensure the presence of independent witnesses from the locality to witness the search. The Investigating Officer has not complied with the guidelines as laid down by the Apex Court in the judgments above. No reliance can be placed on the discovery of the shawl.
37. Then there is the evidence of PW26, the Assistant Director (Biology), who had issued Ex.P28 report with regard to the samples of fibers collected in the cellophane Fingerprints of the palms and neck lifted by the investigating officer. Ext.P18 would reveal that the cellophane fingerprints of the right hand of the deceased (Item No.2), cellophane fingerprints of the left palm (Item No.4(a)) and cellophane fingerprints of the right palm (Item No. 4 (b)) contained fibers (scanty), which were similar to those in item No.1, the fibres of the shawl siad to have been recovered from the house of the accused.
38. Fibers, especially those from textiles like shawls, are composed of synthetic or natural materials, which can be mass-produced. This means that "similar" fibers are found in countless garments. The term "similar" indicates that the fibers share characteristics but doesn't confirm an exclusive match. There is a a whole lot of difference between "similar" (broad range) and "identical"
`Crl.A. No.485 of 2019 :34: 2024:KER:72744 (conclusive match) while analyzing fiber samples. As per Criminalistics, An
Introduction to Forensic Science, Edition 13, published by Pearson, fiber analysis is often categorized under "class evidence," which lacks the individualization capability of "unique" evidence like fingerprints or DNA. Therefore, when the report says the fibers are "similar," it only means that they share general features but do not pinpoint the source of a single item or person. (See also B.R.Sharma Forensic Science in Criminal Investigation & Trials, 6th Edition) Microscopic comparisons of fibers look at aspects such as diameter, colour, shape, and dye composition. However, even two fibers from the same manufacturer can appear "similar" without being "identical." The fiber's general appearance, under a microscope, could match many fibers produced in the same batch or even by other manufacturers. Many commercial fibers are polymer-based, with mass-production techniques that yield similar fibers across various products. If the fibers were only deemed "similar," it implies that these could have originated from other items in circulation. This Court has held that fiber evidence indicating mere "similarity" without additional corroborating evidence did not suffice to prove the accused's guilt beyond a reasonable doubt. As the fibers are not conclusively identical, their presence does not prove that the shawl allegedly seized from the house of the accused was used in the crime. Reference can be made to Biju Kumar v. State of Kerala12, and Muhammed Yousaf @ Sajid 12 2022 (1) KHC 463 (DB) `Crl.A. No.485 of 2019 :35: 2024:KER:72744 v. State of Kerala13. In Sajid (supra), though what was tested was hair and the report stated that it was similar rather than identical, this Court had held that it is not safe to rely on FSL report relating to the matching of the hair samples when the result only shows that the hairs were 'similar' in nature. It was observed that there is a substantial difference between the words 'identical' and 'similar', and therefore the report only speaking about similarity cannot be relied on.
Seizure of cash being the alleged proceeds of the Crime:
39. What remains is the seizure of money from various individuals with whom money was allegedly entrusted by the appellant and his wife. The prosecution case is that upon interrogation regarding how the appellant had used the money obtained from selling the gold ornaments, the appellant disclosed that Rs.27,000/-, being part of the sum received from Sarada Jewellery, had been entrusted to his wife, Rajeena (PW24). Based on this statement, Rs.5,500/- was seized from PW24 as per Ext. P17 mahazar. PW24 did not support the prosecution case. She stated that after the incident, the police officers had threatened that she would be arrayed as an accused, and on its basis, a sum of Rs.10,200/-which was with her was taken away.
13
2023 KHC OnLine 136
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40. Smt.Leela (PW10) claims that she is the landlord of the building situated in the Laksham Veedu Colony, where the appellant is residing with his family consisting of his wife and three minor children. She stated that rent was in arrears and when the same was demanded, a sum of Rs.2000/- was handed over to her by PW24 on 1.11.2010. She stated that police approached her on 2.11.2010 and informed her that the money was the proceeds of the crime. She immediately handed over the money entrusted to her by PW24 and at the time of handing over, Ext.P8 mahazar was prepared. In cross-examination, she admitted that the owner of the house is her husband. However, Ext.P8 mahazar would reveal that the appellant was taken into police custody on 12.11.2010 at 12:45 p.m., about 13 days after the alleged incident, and on the basis of the disclosure statement that amounts were handed over to his wife, the police approached his wife and it was based on her statement that a sum of Rs.2,000/- was handed over to PW10, that they approached PW10 and took away the money. The mahazar is seen prepared on 12.11.2010. Thus there is a serious discrepancy in the evidence of PW10 with regard to the entrustment of the money. Furthermore, the pointing out of a person by PW24 to the investigating officer from whom some amounts were subsequently recovered would amount to a statement to a police officer and hit by Section 162 of the Cr.P.C. and therefore inadmissible.
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41. The next circumstance is the seizure of a sum of Rs.5000/- from PW11 Sunil. In his evidence, Sunil stated that he was having acquaintance with the appellant for over two years. He stated that he was having financial transactions with the appellant. About one month prior to Nalini's death, he had taken a loan from the "Yadava Seva Samudayam" in which organization, he was a member, and had handed over the same to the appellant as requested by him. As amounts had to be repaid, the accused was asked to repay the amount in the month of October. On 31.10.2010, the accused approached him and handed over a sum of Rs.5,000/. He realized then itself that the amounts handed over were proceeds of a crime and hence, it was kept aside. On 3.11.2010, the police came to his house along with the accused. Immediately, he had taken out the cash and handed over the same to the police which was seized as per Ext. P9 mahazar. On the same day itself, he came to know about the murder of Nalini. In cross-examination, it was brought out that there is no document to substantiate that he had taken out Rs.5,000/- from the Samudayam Fund. He stated that the CI along with the appellant and the witnesses had come to collect the money on 3.11.2010. We are afraid that no reliance can be placed on the evidence of the witness due to serious discrepancies in his evidence. It is his case that the closing of the fund is during the end of October and that is the reason why he had demanded back the amount. He stated that he heard about the murder of Nalini on 31.10.2020 and realized that the amount handed over was the `Crl.A. No.485 of 2019 :38: 2024:KER:72744 proceeds of the crime. However, the appellant was arrayed as accused only on 2.11.2010 and, if that be the case, there was no reason for him to keep aside the money as claimed by him, particularly, when the fund was closing down at the end of October. Furthermore, a perusal of Ex.P9 seizure mahazar would reveal that the disclosure was made by the appellant allegedly on 2.11.2010 but the seizure of the amount was effected only on 12.11.2010. This is clearly contrary to the evidence tended by PW11 that the seizure of the amount was effected on 3.11.2010. If the recovery was on 13.11.2010 as is seen emphatically in Ext.P9 mahazar, there is no logic in the witness clinging on to the sum of Rs.5,000/- for a period of two weeks without paying back the amount to the Samudayam Fund as claimed by him. In view of the above discrepancy, we are of the view that no reliance can be placed on the recovery of Rs.5,000/- from PW11 as claimed by the prosecution.
42. The next recovery is a sum of Rs.17,500/- from Sudha (PW13), who resides adjacent to the home of the appellant at the Laksham Veedu Colony. She stated that one Prakashan runs a 'Kuri" and that PW24 is a subscriber to the said Kuri. When she had a requirement for money, she used to take loans from the Kuri and repay it back later. She stated that she had advanced loan to PW24 on numerous occasions. A total sum of Rs.22,000/- was advanced by way of loan. When the money is to be credited back to the fund, she would demand `Crl.A. No.485 of 2019 :39: 2024:KER:72744 back the amounts. On 31.10.2010, while PW24 and her children were watching TV at her home, the appellant came and called her out. After some time, PW24 returned and handed over a sum of Rs.17,500/-. She stated that the amount handed over by PW24 was retained by her at her home when she heard about the death of Nalini. She stated that the Police came later and the money retained by her was handed over. Ext.P10 is the mahazar prepared by the police at the time of the seizure of the money. Her near relatives had stood as attestors. In cross-examination, she stated that she retained the amounts for 16 days. She admitted that the amounts from the Kuri had to be paid to Prakashan and not by her. She pleaded ignorance about the amounts paid by Rajeena to Prakashan. She also pleaded ignorance about the whereabouts of Prakashan. She stated that it was due to urgency that the amounts were demanded back from PW24. She also stated that the amount handed over has been noted in the register maintained by Prakashan. In re-examination, the explanation offered by the witness for retaining the amounts for 16 days was brought out. According to her, she became aware of the role played by the appellant on 2.11.2010 and it is for that reason that she retained the amounts in her possession. Ext.P10 mahazar is dated 14.11.2010. The mahazar reveals that the appellant was re-arrested on 12.11.2010 and that he disclosed that he had handed over amounts to his wife and based on the said disclosure, when his wife was questioned, she disclosed about the handing over of the amounts to Sudha. The non-examination of `Crl.A. No.485 of 2019 :40: 2024:KER:72744 Prakashan, the person who runs the Kuri, the non-production of the register showing that amounts were in fact taken out from the Kuri and handed over to PW24 and the explanation offered by PW13 for retaining the amount from 31.10.2010 till 14.11.2010 rendered her evidence unreliable. The appellant was arrayed as the accused only on 2.11.2010 and if that be the case, there was no justification on the part of PW13 in retaining the amount. Guiding principles:
43. In Balwinder Singh v. State of Punjab14, it was observed as follows in paragraph No. 4 of the judgment:
"4. ... ..... In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."emphasis supplied)
44. In State of U.P. v. Ashok Kumar Srivastava15, it was held that it is the duty of the court to take care while evaluating circumstantial evidence. If the evidence adduced by the prosecution is reasonably capable of two inferences, the one in favour of the accused must be accepted. That apart, the circumstances relied upon must be established and the cumulative effect of the 14 [1996 SCC (Cri) 59] 15 [(1992) 2 SCC 86] `Crl.A. No.485 of 2019 :41: 2024:KER:72744 established facts must lead to a singular hypothesis that the accused is guilty.
45. In Ram Singh v. Sonia16, while referring to the settled proof pertaining to circumstantial evidence, this Court reiterated the principles about the caution to be kept in mind by the court. It was observed as follows in paragraph No. 39 of the judgment:
"39. ... The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts."( emphasis supplied )
46. Suspicion, however grave it may be, cannot take the place of proof as held by the Apex Court in Sujit Biswas v. State of Assam17 held as under:
13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved, and something that 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the 16 [AIR 2007 SC 1218] 17 (2013) 12 SCC 406 `Crl.A. No.485 of 2019 :42: 2024:KER:72744 court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar v. State of M.P., (1952) 2 SCC 71; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979).
47. In M.G. Agarwal v. State of Maharashtra18, the Apex Court held that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, 18 AIR 1963 SC 200 `Crl.A. No.485 of 2019 :43: 2024:KER:72744 benefit of doubt must be given to the accused, and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt.
48. Similarly, in Sharad Birdhichand Sarda (Supra), the Apex Court has held as under:
Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence."
Our conclusion:
49. We hold that neither the circumstances from which the conclusion of guilt is sought to be drawn have been fully established nor the same are consistent only with the hypothesis of the guilt of the appellants. In our considered opinion, the circumstances are neither conclusive in nature nor exclude every possible hypothesis except the one of the guilt of the appellant. The chain of circumstances in this case is not complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the `Crl.A. No.485 of 2019 :44: 2024:KER:72744 appellant. The presence of the accused near the scene at around 7:30 a.m. on 31.10.2010 has not been convincingly established. The recovery of the deceased's ornaments, cash, and the shawl cannot be deemed credible due to several vitiating factors, such as inconsistencies in the evidence and the manner in which it was allegedly recovered. Additionally, the scientific evidence presented by the prosecution lacks reliability. As such, the only reasonable conclusion is that the prosecution has failed to prove the allegations against the appellant with any credible legal evidence.
Resultantly, this appeal will stand allowed. The conviction and sentence against the appellant in S.C.No.375 of 2011 on the file of the Special Judge for the Trial of Offences Against Women and Children, Thalassery, are set aside. The appellant is acquitted, and direct that he be set at liberty forthwith if his continued incarceration is not required in any other case.
sd/-
RAJA VIJAYARAGHAVAN V, JUDGE sd/-
G. GIRISH, JUDGE PS/30/9/24