Kerala High Court
Poojari @ Arkiith Maji, C.No.3840 vs State Of Kerala on 21 December, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 21ST DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943
CRL.A NO. 28 OF 2018
AGAINST THE JUDGMENT DATED 31.10.2017 IN SC NO.491/2014 OF THE
ADDITIONAL DISTRICT & SESSIONS COURT, MUVATTUPUZHA
CP NO.19/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KOLENCHERRY
APPELLANT/1ST ACCUSED:
GUDA @ MADAN MAJI, C.NO.3841
S/O.GADAN MAJI, DAMAGAJOR WARD, BANDAPARI PANCHAYAT,
KALAHANDI DISTRICT, ODISHA STATE.
(C.NO.3841, CENTRAL PRISON AND CORRECTIONAL HOME,
P.O.VIYYOOR, THRISSUR).
BY ADVS.
SRI.P.MOHAMED SABAH
SMT.SAIPOOJA
RESPONDENT/COMPLAINANT:
STATE OF KERALA
(INSPECTOR OF POLICE, PUTHENCRUZ POLICE STATION,
ERNAKULM DISTRICT).
SRI.ALEX.M.THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.12.2021,
ALONG WITH CRL.A.NO.29/2018, THE COURT ON 21.12.2021 DELIVERED THE
FOLLOWING:
Crl.Appeal Nos.28 & 29 of 2018
- 2 -
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 21ST DAY OF DECEMBER 2021 / 30TH AGRAHAYANA, 1943
CRL.A NO. 29 OF 2018
AGAINST THE JUDGMENT DATED 31.10.2017 IN SC NO.491/2014 OF THE
ADDITIONAL DISTRICT & SESSIONS COURT, MUVATTUPUZHA
CP NO.19/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KOLENCHERRY
APPELLANT/1ST ACCUSED:
POOJARI @ ARKIITH MAJI,
S/O.KALYAN MAJI, KENDUGUDA WARD, LANCHIYA PANCHAYAT,
KALAHANDI DISTRICT, ODISHA STATE.
(C.NO.3840, CENTRAL PRISON AND CORRECTIONAL HOME,
P.O.VIYYOOR, THRISSUR).
BY ADVS.
SRI.P.MOHAMED SABAH
SMT.SAIPOOJA
RESPONDENT/COMPLAINANT:
STATE OF KERALA
(INPSECTOR OF POLICE, PUTHENCRUZ POLICE STATION,
PUTHENCRUZ P.O., ERNAKULAM DISTRICT).
SRI.ALEX.M.THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.12.2021,
ALONG WITH CRL.A.NO.28/2018, THE COURT ON 21.12.2021 DELIVERED THE
FOLLOWING:
Crl.Appeal Nos.28 & 29 of 2018
- 3 -
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
----------------------------------------------
Crl.Appeal Nos.28 & 29 of 2018
----------------------------------------------
Dated, this the 21st December, 2021
JUDGMENT
Vinod Chandran, J.
Friends or foes when one is killed, suspicion
falls on the others. However, when such suspicion turns
into an assumption, the investigation goes awry. This is
a classic case where the investigators went awry, on
assumptions galore.
2. The accused, two in number, and the deceased
were migrant labourers, natives of Odisha who were
working and living together. Admittedly, there was one
another person, also a migrant labourer from the very
same State, living along with them. The deceased was
found stabbed and hacked, in his living quarters which he
shared with three other migrant labourers, all of whom
were found missing. The Police went to Odisha and brought
back the two accused along with another. Pertinently, it
Crl.Appeal Nos.28 & 29 of 2018
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is not clear from the evidence led, who the other person
was, said to have been living with the deceased and the
accused.
3. The prosecution paraded 18 witnesses before
Court, marked 23 documents and produced 13 material
objects. There were no contradictions, witnesses or
documents marked on the part of the defence. The Trial
Court convicted the accused under S.302 r/w S.34 IPC and
sentenced each of the accused to suffer imprisonment for
life and pay Rs.1 lakh each.
4. Appearing for the appellant, Advocate.Sai
Pooja emphasizes that the case is one of circumstantial
evidence and that the onus is more on the prosecution to
prove the circumstances beyond any reasonable doubt,
which together form an unbroken chain pinning the crime
and the guilt on the accused. In the present case, there
is no identification of the deceased in the first place.
But for PW1's statement, that he found Boby lying dead,
there is no description of Boby or even a photograph
ferreted out to prove the identity beyond any doubt. The
Crl.Appeal Nos.28 & 29 of 2018
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question of identity assumes relevance especially when
PW1 deposes that he had all along kept in his custody,
the ID cards of his employees; especially migrant
labourers. Ext.P2, ID card of A1 was produced, but not
that of A2, the deceased or their unknown living
companion. There is also suspicion in the production of
the ID cards since the mahazar is dated before the arrest
of the accused and production of ID card before Court is
after such arrest.
5. There is no clear evidence of how many people
were staying in the quarters and each witness has a
different version. Three migrant labourers were examined
as PWs.14 to 16, who were at various times staying along
with the accused and the deceased. They were examined to
prove the alleged motive, which according to the
prosecution is the enmity nurtured by the accused against
the deceased for reason of his drunken brawls and
harassment perpetrated on the accused. The identity of
the unknown companion of the accused and the deceased
were not elicited from any of them. The motive also was
Crl.Appeal Nos.28 & 29 of 2018
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not established since the evidence was only to the effect
that the accused and the deceased used to regularly
engage in drinking bouts and quarrel with each other. The
last seen theory has no legs to stand, since at best the
accused and the deceased were last seen by PW2 on the
evening of 05.04.2014. This has to be juxtaposed with the
fact that there is no exact time of death noticed by the
Doctor who conducted the postmortem examination, of the
body detected on the ninth.
6. The recoveries cannot be believed and the
learned Counsel relies on Mani v. State of Tamil Nadu
[2009 (17) SCC 273] to contend that a conviction cannot
be based solely on discovery. The seizure of the dress is
irrelevant and there is no evidence as to the dress worn
by the accused at the time of the alleged crime. The
learned Counsel relied on Yohannan v. State of Kerala
[2016(4) KHC 881] to canvass this point. The mere fact
that the accused quarreled with each other is not a valid
motive as has been held in Surendra Kumar v. State of U.P
[AIR 2021 SC 2342]. It is pointed out that there was no
Crl.Appeal Nos.28 & 29 of 2018
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personal effects of the accused or deceased recovered
from the living quarters. The said fact assumes relevance
since, even according to PW1, his employees were liable
to vacate the quarters on 06.04.2014. The FIS also speaks
of PW1 having been told that the accused left the
premises on 07.04.2014 at around 4 p.m; informing the
neighbours that they were returning home. There is
absolutely no circumstance connecting the accused to the
crime and they are entitled to be acquitted in appeal.
7. Sri.Alex M Thombra, the learned Senior Public
Prosecutor, would on the other hand support the
conviction and sentence passed by the lower Court. It is
his submission that the identity of the deceased was
never questioned by the accused. The accused and the
deceased were living together and they ought to have
explained what happened to their living companion, Boby,
with whom they were last seen by PW2. The dress recovered
at the instance of the accused was under S.27 of the
Evidence Act, which confession establishes the
concealment of the dress. The involvement of the accused
Crl.Appeal Nos.28 & 29 of 2018
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is proved by scientific evidence as found in Ext.P20 FSL
report. Item Nos.17 and 20 in the FSL report indicate
blood stains on the dress corresponding to the group of
blood recovered from the scene of occurrence. The
recovery of the knife is also spoken of by A1 which
further establishes the crime; on its recovery by the
accused from the place of concealment. The motive, the
absence of a valid explanation by the accused, their
absconding from the scene of occurrence, the recovery of
the dress and weapon based on the confession by the
accused, the scientific evidence regarding the presence
of blood of the same group; together provide a chain of
circumstance, complete and unbroken, pinning the guilt on
the accused unequivocally. There is not a single ground
to overturn the conviction and sentence ordered by the
Trial Court asserts the learned Prosecutor.
8. The appeals arise from the judgment of the
Trial Court. Ext.P1 is the FIS by PW1, in whose
employment the accused and the deceased were; who also
provided the living quarters. PW1 was engaged in the
Crl.Appeal Nos.28 & 29 of 2018
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business of cutting stones and owned a machine for the
same. The machine was sold to PW2 and the accused and the
deceased who were working with PW1, along with another
employee who joined PW1 just a month back, were send to
operate the machine. The employees loaned to PW2 were
working with PW1 for the last 6 months and he had
arranged the living quarters near the work spot. On
09.04.2014 PW1 called his employees over telephone and
since there was no response he called PW2 to enquire
about the whereabouts of the migrant labourers. PW2
informed him that they had left on the evening of
05.04.2014 saying that they had to vacate the living
quarters on 06.04.2014. PW1 having failed to get them on
phone, went to their living quarters at about 10 a.m.
Nobody was seen in the premises and he entered the
residential building, when he noticed a stench coming
from the room to the east. He saw a person lying supine,
with blood clotted around his neck. When he removed the
plastic sheet he saw the deceased lying with a wound on
his neck. He immediately called a neighbour, Sivadasan
Crl.Appeal Nos.28 & 29 of 2018
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and then PW2. When he enquired at the premises he was
told that three migrant labourers had left the place on
07.04.2014 evening at around 4 p.m informing one Suma
(PW5) that they were returning home. PW1 assumed that the
deceased was killed between 6 p.m on 05.04.2014 and 4 p.m
on 07.04.2014. He further assumed that the murder would
have been committed by the persons who were staying with
him. These assumptions were the foundation of the
prosecution case. PW1 feigned ignorance as to the roots
of the deceased and his family. PW1 said that there was
one Raju, who was also staying along with the deceased
and the accused.
9. PW2 is the person under whom the accused and
the deceased were working last. According to him, the
deceased and the accused along with one Ravi brought the
machine to him on 03.04.2014 and left. On the 4 th and 5th
all four of them came for work and returned after taking
wages. The next day was a Sunday and on Monday one of
them called and told him that they were going to Aluva
and will not be coming for work. When they did not come
Crl.Appeal Nos.28 & 29 of 2018
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for work on the next day also, he called PW1, who
promised to enquire and on Wednesday called him to say
that one of the labourers was lying dead. PW2 also went
to the living quarters and confirmed that there was a
person lying dead. But he could not recognize the dead
man. He categorically says that PW1 told him that no I.D.
Card was obtained from the workman. PW2 also deposed that
one week from the date of detection of the body, the
accused were shown to him. PW3 is the owner of the living
quarters and he confirmed that his residence was rented
out to PW1 for the purpose of housing migrant labourers.
The rental agreement was with PW1; entered six months
back. It was PW1 who paid the rent and he had housed four
persons in the residence, Poojari, Raju, Boby and yet
another person, whose name was not known to PW3. He
identified A1 & A2 from the dock. According to PW3, he
had requested PW1 to vacate the premises about a week
back and PW1 had promised to do the same within 2 to 3
days.
10. PW4 is the nephew of PW3, who confirmed the
Crl.Appeal Nos.28 & 29 of 2018
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rental arrangement and the fact that the accused and
deceased were staying there. He identified A1 & A2 and
also was acquainted with Boby, the deceased. He
identified Boby's dhoti as MO1 and MO2 knife as the one
entrusted to the Police by the 1st accused. He also
confirmed having seen all the three in the rented
accommodation on the previous day of the day in which the
incident occurred. Here we have to notice that but for
detection of the body, there is no specific evidence of
the day on which the murder occurred. PW5 was the person
who informed PW1 about the migrant labourers having told
her that they were going back home; which she denied in
Court. She feigned ignorance about the details of the
case and merely said that she had seen two persons,
identified as the two accused, walking through the rubber
estate on Monday evening, ie. on 07.04.2014.
11. PW6 did not depose anything relevant and
PW7 & PW8 witnessed Ext.P4 inquest report. PW9 is a
neighbouring resident, who confirmed that the accused and
deceased were staying in the house of PW3. He spoke of
Crl.Appeal Nos.28 & 29 of 2018
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having seen the accused [in the plural form] taking out
the knife and handing it over to the Police. He also
marked Ext.P5 recovery mahazar for MO2 knife and Ext.P6
recovery mahazar by which MO3 to MO6 dress of both the
accused were seized. MO2 allegedly was recovered on the
confession statement of A1 and MO3 to 6 on the confession
made by A2.
12. PW10 conducted postmortem examination and
proved the certificate Ext.P7. He deposed that death was
due to the impact of injury Nos.1,2 and 4 to 6. Injury
No.1 was opined to be sufficient in the ordinary course
to cause death. All the injuries, according to him, were
possible by the two weapons shown to him, ie, the knife
and axe. Injury No.4 was possible by using the blunt
portion of the axe. Injury No.5 could also lead to death.
The medical evidence is clear and the death is by
homicide. PW11 is the Scientific Assistant, who examined
the scene, in the presence of the Investigating Officer
[I.O.] and collected some items which are evident from
Ext.P8. PW12 marked Ext.P9 Ownership Certificate of PW3,
Crl.Appeal Nos.28 & 29 of 2018
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of the rented premises. PW13 is the Village Officer, who
prepared Ext.P10 sketch of scene of occurrence.
13. PW14, 15 & 16 are the three migrant
labourers examined with the help of an interpreter, all
of whom were quarry workers. PW14 said that he stayed
with the deceased and both the accused for about two
weeks, starting from April, 2014. He also spoke of the
three taking liquor after work and quarreling with each
other. He identified both the accused and said that Boby
was not alive now. He heard about Boby's death after
three days, from one Varghese and he left for home on
10.04.2014. He also deposed that he saw A1 at his native
village, to whom he enquired about Boby, when A1
threatened and returned to his Village. PW15 also stayed
with both the accused and the deceased. According to him
there were five persons staying in the rented premises,
in addition to the two accused and the deceased. He
stated the names of the other two as Prasad Majhi and
Masooka Majhi. PW15 is Prasad Majhi, who spoke of having
stayed in the rented premises for four months in 2014
Crl.Appeal Nos.28 & 29 of 2018
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during March and April. According to him, he shifted his
residence since there were frequent quarrels between the
accused and the deceased. He speaks of having heard about
the death of Boby from Biju (PW1?) while he was working
with one George after he shifted the residence. He
specifically speaks of being acquainted with Boby and
having seen him in his Village. He also spoke of having
handed over the photographs of the accused to the Police.
In cross-examination he further stated that Boby belongs
to the same Village as A2 and A2 married from his
Village. PW16 is another migrant labourer, who was
working with PW1. He too spoke of the five persons along
with whom he resided in the rental premises as spoken of
by PW15 ie: in addition to accused and deceased; Prasad
Majhi and Maso Majhi. Again we have to notice that PW16's
name is Masso Majhi and hence the five included PW15 &
16. He says that he shifted his residence in August after
staying with the accused and deceased for two months. He
further said in cross examination that there were six
persons staying in the rented accommodation. He too
Crl.Appeal Nos.28 & 29 of 2018
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asserted that Boby was his friend.
14. PW17 is the person who took the FIS-Ext.P1
and registered Ext.P11 FIR and PW18 is the I.O. PW18 has
not made any attempt to identify the dead person and had
merely assumed that it is Boby as spoken of by PW1. He
spoke of seizures having been made from the scene of
occurrence, which included an axe marked as MO13. Ext.P2
Identity Card is said to have been handed over by A1,
which was seized as per Ext.P3 mahazar. The dead body was
cremated in the municipal crematorium since none of the
relatives turned up. The I.O. speaks of having made
enquiries about the two accused and one Dhan Singh. The
police party proceeded to Odisha to apprehend them. It is
deposed that with the help of the Police at Odisha the
three were apprehended who agreed to accompany the Police
to Kerala. It is stated that on arriving within the
State, the three were questioned with the help of a Home
Guard called Baby. Dhan Singh was let off since the
Police understood that he was not involved in the crime.
A1 & A2 were arrested as per Ext.P12 on 26.04.2014.
Crl.Appeal Nos.28 & 29 of 2018
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15. A1 confessed about the knife having been thrown
into the shrubs near the rented accommodation. On the
basis of this confession, A1 was taken to the premises
from where he recovered the knife, which was seized as
per Ext.P5 mahazar. The knife was identified as MO2 and
the confession statement was marked as Ext.P5(a). The
accused were produced before Court and remanded as per
Ext.P16 remand report. They were then taken into custody
and on questioning A2, he confessed the concealment of
the dress inside the house itself on the roof. On
07.05.2014 the dress is said to have been recovered as
per Ext.P6 mahazar based on Ext.P6(a) confession
statement.
16. As has been rightly pointed out by the
learned Counsel for the appellants, the Police has not
attempted to identify the body, as that of Boby, who was
PW1's employee and staying along with the accused. The
Police proceeded on the assumption that the dead person
is Boby as spoken of by PW1. In fact PW2, who also saw
the body immediately after detection, could not recognize
Crl.Appeal Nos.28 & 29 of 2018
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him. The photographs of the body have not been taken by
the Police to understand whether the face was
recognizable, especially since the injuries are said to
have been caused to the neck and face, as is evident from
the postmortem report-Ext.P7; which also indicates
decomposition having set in. In this context, it is very
relevant that PW14 to PW16 were migrant labourers, who
had very close acquaintance with Boby, with whom they
were residing in the rented accommodation. Immediately
after the detection of the body, all the three persons
were in the locality and PW16 specifically says that he
was in the employment of Biju, from whom he came to know
about Boby's death. The Police did not attempt to
identify the body through the three migrant workers.
17. The Police went to Odisha to apprehend the
accused and one Dhan Singh. PW14 is also Dhan Singh, but
the I.O. does not identify him as the person who was
brought from Odisha, along with the accused. The I.O.
also has not conducted any investigation to find out
Raju, who according to PW1, was staying along with the
Crl.Appeal Nos.28 & 29 of 2018
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accused and the deceased. PW2, on the other hand, spoke
about one Ravi having accompanied the accused and the
deceased for operating the machine, which he purchased
from PW1. More surprisingly, the migrant workers PW14 to
PW16 do not identify one Raju having stayed with them.
PW14 had a different version, from PW15 and PW16 as to
the number of persons, who were accommodated in the
living quarters rented out by PW1. PW14 also says that he
had stayed for two weeks in the rented accommodation
starting from April, 2014; the crime occurred on the
first week of April. Likewise, PW15 also spoke of having
stayed for four months during March, April of 2014.
Considering the testimonies of PW14 to PW16 there is no
clear picture as to who were staying in the rented
accommodation. In all probability the three persons
examined before Court were living along with the deceased
and the two accused. They too have no explanation as to
how Boby was found dead in the premises. As for the
family of Boby, PW16 speaks of Boby being a native of
A2's Village and it was easy for the police party, who
Crl.Appeal Nos.28 & 29 of 2018
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went to Odisha, to trace out the family of Boby, to which
end there was no attempt made.
18. The prosecution also relies on the recovery
of the knife and the dress of the accused, which was sent
for scientific examination. Ext.P5 is the seizure mahazar
of the knife and Ext.P5(a) is the confession statement.
The confession statement is recorded in Malayalam, while
even the S.313 statement was translated to Hindi through
an interpreter. The recovery as per Ext.P6 also suffers
from the very same infirmity. The interrogation of the
accused, even as per the Mahazar was carried out through
an interpreter; a Home Guard. Neither was the statement
recorded in the language in which it was given, nor was
the translator examined. The recovery cannot form an
incriminating circumstance going by the decision of
another Division Bench in Sanjay Oraon v. State of Kerala
[2021 (5) KLT 30. Since the recoveries cannot be held to
be incriminating, whatever scientific evidence obtained
from the recovered objects cannot also be relied upon.
19. The postmortem report is produced at Ext.P7,
Crl.Appeal Nos.28 & 29 of 2018
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which was marked by PW10, the Doctor. The body was
detected on 09.04.2014 and was kept in the cold room till
13.04.2014, on which date the postmortem was conducted.
The exact time of death has not been stated in the
postmortem certificate, nor is it stated by the Doctor,
PW10. The deceased was last seen on 05.04.2014 along with
the accused. The body having been detected on 09.04.2014
and there being more occupants in the living quarters, it
cannot be said that the last seen theory is applicable.
The accused and the deceased were seen together at their
place of work, when they collected the wages for the day
and left. The accused, even according to PW1 & PW3, were
supposed to vacate the premises by 06.04.2014. On
07.04.2014 the two accused were seen walking through the
rubber estate and it was on 09.04.2014 that the body was
detected. The identification of the body is also hazy
especially looking at the postmortem report, which
indicates decomposition having settled, with maggots seen
at the neck area, eyes bulged out and mustache lost, due
to decomposition. We are of the opinion that the
Crl.Appeal Nos.28 & 29 of 2018
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prosecution has failed to prove the guilt of the accused
beyond reasonable doubt.
20. We extract hereunder the oft-repeated
principles delineated by the Hon'ble Supreme Court in
Sharad Birdhichand Sarda v. State of Maharashtra, (1984)
4 SCC 116, at page 185 :
"153. A close analysis of this decision would show
that the following conditions must be fulfilled before
a case against an accused can be said to be fully
established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that
the circumstances concerned "must or should" and not
"may be" established. There is not only a grammatical
but a legal distinction between "may be proved" and
"must be or should be proved" as was held by this
Court in Shivaji Sahabrao Bobade v. State of
Maharashtra19 where the observations were made: [SCC
para 19, p. 807: SCC (Cri) p. 1047]
"Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
can convict and the mental distance between 'may be'
and 'must be' is long and divides vague conjectures
from sure conclusions."
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that
is to say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
Crl.Appeal Nos.28 & 29 of 2018
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(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused."
We do not find the evidence led, in the above
case, sufficient to bring home the guilt of the accused,
beyond all reasonable doubt. We hence give the accused
the benefit of doubt and acquit them, overturning the
judgment of the Trial Court. The accused shall be
released forthwith if they are not wanted in any other
case. Both the appeals stand allowed.
Sd/-
K.VINOD CHANDRAN, JUDGE
Sd/-
C.JAYACHANDRAN, JUDGE
jma/sp
