Kerala High Court
Sanju M.C. vs The Sub Inspector Of Police on 23 February, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 23RD DAY OF FEBRUARY 2021 / 4TH PHALGUNA, 1942
CRL.A.No.115 OF 2016
AGAINST THE JUDGMENT IN SC 444/2009 OF ADDITIONAL DISTRICT
COURT & SESSIONS COURT - IV, THALASSERY
[CP 9/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,THALASSERY]
CRIME NO.153/2006 OF THALASSERY POLICE STATION-
CRIME NO.300/2006 OF CBCID, KANNUR , Kannur
APPELLANT:
SANJU M.C., AGED 31 YEARS
S/O.KARUNAKARAN (LATE), NALLAKANDI HOUSE, NETTUR
PO, NAMBIARPEEDIKA, THALASSERY, KANNUR DISTRICT
BY ADV. SRI.SUNNY MATHEW
RESPONDENTS:
1 THE SUB INSPECTOR OF POLICE
THALASSERY POLICE STATION, KANNUR DISTRICT 670001
2 THE DEPUTY SUPERINTENDENT OF POLICE
CRIME BRANCH CID, KANNUR 670001
3 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM 682031
R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
SENIOR PUBLIC PROSECUTOR SRI.S.U.NAZAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
08.02.2021, THE COURT ON 23.02.2021 DELIVERED THE FOLLOWING:
Crl.Appeal No.115 of 2016
2
K. Vinod Chandran & M.R. Anitha, JJ.
-------------------------------------
Crl.A.No.115 of 2016
------------------------------------
Dated, this the 23rd day of February, 2021
JUDGMENT
Vinod Chandran, J.
An imprudent indulgence in carnal pleasures
of the bizarre kind, led to the murder of a young man;
is the case of the prosecution, in short. The 23 year
old, pursuing his graduate studies was found, bound,
blindfolded, sodomized and hacked to death in a
desolate cashew plantation. The victim had, as per the
expert opinion, presumably consented to the sexual
act, little realizing that it would culminate in his
life being snuffed out by his partner. The medical
evidence according to the Doctor, who conducted the
Postmortem, leads to a reasonable inference that
bondage and blindfolding before the sexual act points
to a sadomasochistic encounter. After the sexual act
the aggressor took the life of the passive victim is
the case set up by the prosecution.
2. According to the prosecution, the accused
and victim were childhood friends and had a long
relationship, presumably extending to the homosexual.
The accused developed jealousy for reason of the
transgressions of the victim by way of a love affair
with PW22, a young girl and PW31, a 67 year old, whose
house he used to frequent. The accused also harbored
Crl.Appeal No.115 of 2016
ill-will for reason of the victim planning to go to
Mumbai seeking employment. The accused sent two
letters [Exts.P3 and P3(a)] to the father of the
victim [PW6] threatening to maim his son, the victim.
The said letters were written by PW 30, a friend of
the accused. The accused had been appointed under the
dying-in-harness scheme in Government service and at
the crucial time deputed for a training.
3. Motivated by jealousy and ill-will, the
accused took leave of absence from training and came
home on 18.04.2006. In the evening, the accused went
to the house of the victim and asked PW 5, a
neighbour who was watching TV in the victim's house,
to call the victim. PW 5 saw the accused talking to
the victim outside the house, when presumably, they
planned an amorous meeting on the next day. The
victim, on 19.04.2006, left his house to write an exam
and also informed his family that he would be late to
come back for reason of the housewarming function of a
friend. The victim attended the exam at Brennen
College, Thalassery and at about 12.30 P.M informed PW
4, a friend and college mate that he was going to meet
another friend near MRA Bakery; without revealing the
name of that friend. The accused and victim then
purchased two packets of biscuits and soda from the
shop of PW7 and proceeded to the cashew plantation in
the location known as Kundoor Mala. After the sexual
act and murder, the accused walked down to the road as
Crl.Appeal No.115 of 2016
witnessed by PW9-Savitha, to whom he sought directions
to reach the motor-able road. From the road he boarded
PW10's auto-rickshaw in which he reached the Bus Stand
and returned by bus to Kozhikode, the training venue.
The accused reached his room, where he was found
around 6.30 P.M on 19.04.2006 by PW33, another
trainee. He also hid the blood stained dress and shoes
he was wearing, near the Tourist Home in which he was
staying for the duration of the training, at
Kozhikkode. This, in brief is the prosecution case.
4. The dead-body, in a sitting position in a
pit, was first seen by PW11, who had been collecting
nuts from the cashew plantation of her mother. She
called PW12, her relative, who was in the neighbouring
plantation. PW11 & 12 panicked and while returning to
their respective homes informed the people standing
near 'E.M.S. Library' about the corpse found in the
plantation. CW27 informed the Police Station, from
where PW1 the brother of the victim was informed. PW1
along with PW3 and another friend proceeded to the
spot, identified the body and later gave FIS at the
Police Station. The Investigating Officer [I.O,
hereafter], PW44 reached the spot on the same day at
about 7.30 P.M and prepared the Observation Mahazar
(Ext.P2). The Police sent the body for Postmortem and
seized many items found at the scene of occurrence
having connection with the crime, including the ropes
by which the victim was bound, the towel with which he
Crl.Appeal No.115 of 2016
was blindfolded, his pants [worn but drawn down to his
knees], two shirts and two empty biscuit packets.
5. One of the shirts found at the scene, MO8
obviously had a tailoring mark, which led the Police
to PW18, who runs the tailoring shop called 'Friends',
Nettoor. The register of customers [Ext. P28]
maintained in the tailoring shop was seized by Mahazar
Ext.P27 and Ext.P28(a) at Serial No.345 is the
relevant entry by which two cloth pieces were
entrusted to the tailor; one of which resembled the
cloth of MO8. The said seizure was on 24.04.06, based
on which the accused was arrested on 25.04.2006. Upon
arrest the accused made four confession statements.
The first regarding the place where the weapon and a
pair of gloves were hidden [Ext.P13(a)]. Based on
which, the police accompanied the accused to the scene
of occurrence, near which, in the property lying
adjacent to the compound wall of an Engineering
College, the accused pointed out the weapon and gloves
hidden in between boulders and rocks on 25.04.2006
itself. The weapon was marked as MO14 and the pair of
gloves as MO23. The seizure was made by Ext.P13
Mahazar, which was witnessed by Dileesh M.K. and K.
Ratheesh, [PW's.13 & 14]. The second confession was
with respect to the purchase of the weapon from a
blacksmith. The third confession was regarding the
shop from which the accused and the victim together
purchased biscuits and soda, just before the crime.
Crl.Appeal No.115 of 2016
The last confessions are marked Ext. P68 and P69;
respectively regarding the hiding place of MO16 shoes
and MO17 to 19, blood stained full-shirt, underwear
and pants, the accused wore after the crime was
committed.
6. The accused presumably was produced before
the jurisdictional Magistrate within 24 hours of
arrest and remanded to judicial custody. He was then
procured into police custody on 04.05.2006 when the
accused, as per the confession statement made on
25.04.2006, is said to have taken the Police to PW15
blacksmith who manufactured MO14 weapon. On 05.05.2006
as per the confession statement of the accused made on
25.04.2006, the shirt, pants, underwear and shoes, the
accused wore after the incident to go back to
Kozhikode, was recovered from near the Tourist Home at
Kozhikode in which the accused was residing during the
period of training. Another Government Employee [PW33]
who was also deputed for training and the Instructor
[PW40] spoke of his absence during the training from
the afternoon of 18.04.2006 to the evening of
19.04.2006.
7. On the basis of the investigation carried
out in the aforesaid manner the prosecution commenced
and continued the trial examining PW1 to PW47, marking
Exts.P1 to P76 and producing material objects MO1 to
MO36. The defence marked D1 to D4 contradictions in
Section 161 statements. After Section 313 examination
Crl.Appeal No.115 of 2016
of the accused the trial Court found the accused
guilty and convicted him under Section 302 and 377
IPC. The accused was sentenced to undergo imprisonment
for life and pay a fine of Rs.1 lakh with default
sentence of one years rigorous imprisonment under
Section 302 IPC and RI for 3 years and fine of
Rs.10000/- with default sentence of RI for 3 months
under Section 377 IPC which sentences were also
directed to run concurrently.
8. Sri. Sunny Mathew appeared for the
appellant/accused and Sri. S.U Nazar, Public
Prosecutor, for the State. Sri.Sunny Mathew at the
outset submitted that the friendship between the
accused and victim, the accused's employment, training
and absence from training on the crucial day stand
established. But nothing connects the accused with the
crime nor is there any evidence to establish a sexual
relationship between the accused and the victim. As
far as the crime, the recovery of the weapon is
attempted to be proved only by the I.O and both the
mahazar witnesses turned hostile. Pertinent is also
the fact that a sniffer dog was brought to the site on
the same day and in all probability the weapon kept
only at a distance of 15 meteres from the crime scene
would have been sniffed out. MO8 shirt seized from the
site is stated to be that of the accused relying
solely on the inconsistent evidence of PW18 tailor.
The tailor spoke of having stitched shirts of the same
Crl.Appeal No.115 of 2016
cloth for others and it also came out in evidence that
MO8 resembled the uniform of a Polytechnic in the
area. There is nothing to show that either the weapon
or the pair of gloves recovered from near the scene
of occurrence was that of the accused.
9. MOs 16, 17 and 18 recovered from near the
training school, though proved by the I.O and mahazar
witnesses, the recovery was on 05.05.2006, based on a
confession alleged to have been made by the accused on
25.04.2006. The delay is unexplained, recovery
concocted and in all probability those items would
have been planted by the Police. All the shirts
recovered or seized in pursuance to the investigation
discloses the label 'Friends', Nettoor. The mere fact
that the accused also got his dress stitched in the
said tailor shop for reason of which the tailor is
familiar with the accused cannot lead to any inference
that the shirt seized from the crime scene was that of
the accused. The delay, in recovery of the dress worn
by the accused on his way back to Kozhikode puts to
peril the acceptability of such recovery.
10. There is discrepancy in the evidence of
PW23 regarding the accused having shared a room with
PW33. There can be no reliance placed on the evidence
of PW17 the alleged scribe of letters, Ext.P3 and
P3(a), to the extent he speaks of the letters having
been written at the instigation of the accused. The
statement is self serving insofar as the scribe being
Crl.Appeal No.115 of 2016
aware that such letters, leveling threats against the
person of another, is illegal. It is pointed out that
circumstances all of which were found to have been
proved, to find the guilt of the accused. While
admitting certain circumstances it is pointed out that
no circumstance relied on to connect the accused to
the actual crime has been proved by the prosecution.
It is urged that in fact there were two other
circumstances projected by the prosecution ie: the
evidence of PW9 and PW10, who allegedly saw the
accused leaving the crime scene. Both of them turned
hostile and obviously for that reason the learned
trial Judge ignored the said circumstances.
11. Sri. Sunny Mathew placed before us the
decision of the Hon'ble Supreme Court in A N
Venkatesh v State of Karnataka (AIR 2005 SC 3809) to
contend that the confession regarding purchase of the
weapon or that of biscuits cannot be accepted. It is
pointed out that there can be no conviction based on
discovery alone since, that by itself is a weak piece
of evidence [Vijay Thakur v State of Himachal Pradesh
[2014(11) SCALE 63]. The learned Counsel would urge
this Court to set aside the judgment of the trial
Court and acquit the accused for reason of total
absence of evidence linking the accused to the crime.
12. The learned Public Prosecutor, Sri Nazar
vehemently opposed the plea for acquittal and argues
Crl.Appeal No.115 of 2016
for sustaining the conviction. From the impugned
judgment it is pointed out that the trial Court has
spelt out the circumstances and meticulously dealt
with the evidence to find the accused guilty of the
offence charged; establishing such guilt unerringly
and conclusively against the accused. The death was
caused by reason of a deviant relationship, turning
sour, as established by the opinion of the Medical
Doctor. That the victim consented to bondage and the
subsequent sexual act indicates the trust he had on
the active aggressor who not only subjected the victim
to unnatural sexual intercourse, but also snuffed out
his life on ground only of jealousy.
13. Even if some of the circumstances are
found to have been not proved, the direct evidence of
PW30 regarding the threat leveled against the victim,
revealing the intention of the accused to harm the
victim proves the motive. PW1 and 3 to 6 the brother,
father and friends of the victim spoke of the close
relationship the victim had with the accused. PW5 a
mutual friend and a resident of the locality had seen
the accused conferring with the victim on the previous
day, obviously planning the trip to Kundoor Mala. MO8
shirt was seized from the crime scene which admittedly
PW18 stitched for the accused. The accused has no
explanation insofar as the presence of that shirt at
the crime scene. The recovery of the weapon and the
gloves has been proven by the I.O. Even in the event
Crl.Appeal No.115 of 2016
of the mahazar witnesses turning hostile there can be
reliance placed on the I.O if his evidence is
convincing. The learned PP relies on Pulukuri
Kottayya v. Emperor [AIR (34) 1947 PC 67] to bring
home the significance of a discovery made under
Section 27 of the Evidence Act. Liyakat v. State of
Uttaranchal [AIR 2008 SC 1537] is relied on to argue
that the accused has chosen silence regarding the
various circumstances found against him, which also is
a vital circumstance in the unbroken chain. Praful
Sudhakar Parab v. State of Maharashtra [AIR 2016 SC
3107] is placed on record to support the last seen
together theory. It is pointed out from
G.Parashwanath v. State of Karnataka [2010(8)SCC 593]
that the trial Court rightly relied on the said
decision to infer certain things which normally and
definitely follows from the established circumstances
providing the missing links. The Hon'ble Supreme Court
in Mohd.Aslam v. State of Maharashtra [(2001) 9 SCC
362] and Modan Singh v. State of Rajasthan [1978 (4)
SCC 435] as well as this Court in Mathew v. State of
Kerala [1990(2)KLT 564] accepted recoveries effected
even when mahazar witnesses turned hostile.
14. Babu v. State of Kerala [2015 KHC 7029]
was proffered to contend that there is no requirement
that the chain of circumstances should contain very
many links and if a conclusion of guilt can be arrived
at even by virtue of two or three links, that would
Crl.Appeal No.115 of 2016
suffice. The weapon recovered at the instance of the
accused was blood stained. MO8 and the dress of the
victim seized at the time of inquest had blood stains,
of human origin and group B as found on scientific
analysis. Blood stains of the very same group were
found in the dress recovered from near the training
school, as pointed out by the accused. The
circumstances together establish the guilt of the
accused who from his perversions and the brutal manner
in which the crime was conducted cannot be let loose
in society. The conviction and sentence has to be
upheld is the assertion of the learned Public
Prosecutor.
15. That the death occurred in a desolate
plantation from where the body was recovered is an
established fact. That the murder and the antecedent
sexual act were both bizarre and gruesome also cannot
be disputed. The circumstances as spelt out by the
trial Court were the following: (i) sodomy and
homicidal death by chopper, (ii) close friendship and
probable homosexual relationship, (iii) love affair of
the accused with PW 22 Jishitha, resultant jealousy
prompting anonymous letters of threat send to the
father PW6, (iv) Jishitha and victim fell apart and
accused and victim continued their relationship, (v)
accused appointed on 08.12.2005, joined duty on
26.12.2005 and was deputed for survey training between
23.03.2006 and 22.04.2006, (vi) victim developed
Crl.Appeal No.115 of 2016
relationship with Ramakrishnan, PW31, (vii) victim
trying for employment outside Kerala, (viii) accused
apprehending inability to continue his homosexual
relationship, (ix) broad probabilities, of sexual
jealousy (x) motive of sexual jealousy leading to the
crime, (xi) MO14 chopper made by PW15 Raju and sold to
accused (xii) accused concealed his real identity from
PW15 (xiii) MO14 along with gloves (MO23) recovered by
the I.O as pointed out by the accused after his arrest
(xiv) accused absent from afternoon of 18.04.2006 till
6.30 PM on 19.04.2006 from the training venue and the
Lodge (xv) accused met victim on the previous day and
made arrangements for their meeting on 19.04.2006
(xvi) victim left Brennen College in the noon to meet
a friend (xvii) the two purchased biscuits and soda
from the shop near the place of occurrence (xviii) no
grappling, consented sexual intercourse involving
sadomasochism (xix) recovery of blood stained shoes
and clothes (xx) MO8 Shirt belonging to accused, with
blood stains found at scene of occurrence (xxi)
exclusion of other theories (xxii) in all probability
the murder would have been done by the accused who had
sexual jealousy towards deceased.
16. All the 22 circumstances stated above
were found to be established by the trial Court. We
would pause here to recollect that the learned Counsel
for the appellant/accused had pointed out two
circumstances which were omitted by the trial Court.
Crl.Appeal No.115 of 2016
We entertain serious doubts about the various
inferences made by the trial Court in finding that the
circumstances would necessarily point an unerring
finger to the guilt of the accused. In such
circumstances we would re-frame the circumstances as
available in the prosecution case in the following
manner.
1. That the victim met with homicidal death caused
by injuries inflicted by a chopper (MO14) between
1.30 p.m and 2.30 p.m on 19.06.2006 in a cashew
plantation.
2.That the deceased victim could have been
subjected to sodomy on consent after being tied
up and blindfolded by his partner-aggressor.
3. That the accused and victim were residents of a
locality and childhood friends which could have
extended to homosexual relationship.
4.That the victim developed an affair with PW22,
Jishitha with whom he exchanged love letters and
also had a relationship with PW31 Ramakrishnan,
whose house he used to frequent, both of which
resulted in the accused developing jealousy and
resultant enmity towards the victim.
5.That the victim was searching for an employment
outside the State and the accused was
apprehensive of loosing his sexual partner.
6.That on the fateful day, the victim had written
an examination at Brennen College Thalassery in
Crl.Appeal No.115 of 2016
the forenoon after which he left the College to
see a friend near MRA Bakery, Thalassery and was
later found dead at the scene of crime.
7.That the accused, a government employee was
attending training at Kozhikode, lodged in a
tourist home nearby to the Training School from
where he was absent from 18.04.2006 noon till
6.30 p.m. on 19.04.2006; on which later day he
was on leave.
8.That the accused on the evening of 18.04.2006
conferred with the victim after calling him out
from his residence.
9.That on 19.04.2006 the accused and the victim
purchased soda and biscuits from PW7's shop
before proceeding to Kundoor Mala; which shop was
nearby to the scene of crime.
10. That the accused on his way back from Kundoor
Mala, alone, approached PW9 a nearby resident who
gave him directions to proceed to reach the road.
11. That on reaching the road he traveled in
PW10's autorikshaw to the bus stand from where he
traveled back to the Training Institute at
Kozhikode.
12. That the victim was found dead in a pit
within the desolate cashew plantation by PW11 and
12; tied, blindfolded and pants drawn down to his
knees.
13. That there were interalia two shirts at the
Crl.Appeal No.115 of 2016
crime scene, one that of the victim and the
other, MO8 stitched by PW18 for the accused.
14. That on arrest the accused had confessed to
have hidden the weapon and the cricket gloves he
wore, near the scene of crime which was recovered
on his showing.
15. That the recovery of MO14 chopper and MO23
gloves from near the crime scene was witnessed by
PW13 and PW14 cleaner and driver of a lorry.
16. That MO14 chopper was made by PW15 blacksmith
who identified the weapon by the seal on it and
also the accused as the person who purchased it,
before the Police. PW15 also produced the bill
book which contained the carbon copy of the bill
issued with respect to the weapon which showed
the name of the accused.
17. That the cricket gloves were traced to the
shop of PW21 who identified the accused and the
gloves purchased from his shop.
18. That the accused led the police party as per
his confession statement, to the property, near
the tourist home belonging to PW23, from where
MO16 shoes MO17 full shirt, MO18 underwear and MO
19 pants, which he wore on his way back to the
training venue after the commission of the crime,
were recovered.
19. That PW35 Doctor who prepared P39 postmortem
report specifically spoke of a homosexual
Crl.Appeal No.115 of 2016
encounter involving sadomasochism after which the
passive-victim was killed by his aggressor-
partner. The expert opinion was also that the
injuries seen on the body of the victim resulted
in his death and those injuries could very well
be inflicted by MO14 chopper.
20. That the FSL report showed blood stains in
MO8 shirt recovered from the scene of crime,
MOs16, 17 and 18 recovered from near the tourist
home at Kozhikode and MO14 weapon all of which
were of human origin and group B which was the
group identified to be that of the victim, as
available on the dress seized from the corpse.
21. That the enmity of the accused to the victim
is clear from Ext.P3 and P3(a) letters sent to
the father of the victim which was written by
PW30 at the instigation and command of the
accused.
22. That the accused and victim were last seen
together by PW7 and later PW9 and 10 saw him
leaving the crime scene. The recoveries made and
the evidence of the witnesses lead to the
unerring conclusion of the accused having
committed the subject murder without leaving any
room for doubt as to existence of any other
theory pointing to the innocence of the accused.
17. That the victim died of injuries
inflicted, in all probability by any heavy sharp edged
Crl.Appeal No.115 of 2016
weapon is spoken of by the Doctor. MO14 weapon is
stated to be capable of inflicting the injuries
described in the Postmortem report and it contained
blood stains as is established by the evidence of PW35
the Doctor who conducted Postmortem. The victim
suffered 16 ante mortem injuries and died of the
injury to the neck (Injury NO.7); a gaping incised
wound starting from the left front base of the neck,
severing the carotid artery and jugular vein, passing
just below the adams apple and cutting the spinal cord
in two at the level of C6 vertebra as also the
bleeding from the other cut injuries.
18. A conjoint reading of Ext.P71, Property
List, Ext.P72, Forwarding Note and Ext.P73, FSL Report
would offer the scientific evidence regarding the
crime. Item No.1 to 12, 15, to 17, 23 and 25 were
found to contain blood stains of human origin and
belonging to group B. Item No.'s 1 to 12 are those
objects recovered from the scene of occurrence
including MO1 & 8 shirts and the dress, band, threads
etc. worn by the deceased, recovered from the corpse.
Item No.17 is the weapon, which too contained similar
blood stains. However the blood sample taken from the
body of the victim, on examination did not disclose
the specific group as the results were inconclusive
[Ext.P51 Report of Analysis]. The Doctor has opined
that injury No.15 caused to the genitals of the victim
is usually seen in cases where sexual jealousy is
Crl.Appeal No.115 of 2016
involved. The anal swabs did not disclose any semen.
From the nature of the injuries to the anus it was
opined that those must have been caused, on the victim
being subjected to sodomy. The Doctor also opined that
the nature of the injuries on the anus indicated
consent of the victim. This coupled with the fact that
the victim was bound and blindfolded; indicates a
sadomasochistic encounter, in the course of which the
aggressive-partner caused the death of the passive-
victim. Injuries resulting in death were caused by
hacking fatally on the body of the victim and even on
the genitals; clearly indicating sexual jealousy. The
cause of death is fairly well established. The
inference with respect to a sadomasochistic encounter
as opined by the Doctor, is an informed inference
deductible from the bondage and blindfolding coupled
with the injuries to the anus.
19. The accused and victim were childhood
friends which friendship continued after they attained
majority as spoken of by the brother (PW1), father
(PW6) and friends (PWs.3,4&5). However, we are unable
to accept the conclusion of the trial Court that they
had a homosexual relationship by reason merely of
their friendship for long years. There was no inkling
of evidence on that aspect by the friends, brother and
father of the victim and not even a doubt was
expressed on that count. The trial Court placed
reliance on the deposition of PW6 the father and
Crl.Appeal No.115 of 2016
relied on G. Parswanath to infer the homosexual
relationship. G. Parswanath was a case in which the
wife and child of the accused were found burnt to
death in the house when the accused claimed he was not
present. The evidence of the mother of the deceased
indicated that immediately before the occurrence the
accused was present in the house and the fireman who
broke open the house stated that it was bolted from
outside. The defences projected of suicide, death due
to inhalation of carbon monoxide and accidental burns,
were found to be false. Coupled with these
circumstances the constant harassment of the wife by
the accused as established from letters, the evidence
of the immediate family and independent witness could
only lead to one inference was the finding in the
cited case.
20. The trial Court has relied on the cited
decision to find that the only inference possible from
the proved circumstance of the friendship between the
two, the evidence regarding the victim being subjected
to sodomy and the statement made by the father (PW6)
regarding the homosexual relationship between the two
could only lead to the guilt of the accused. The
father categorically said that he had not noticed any
bodily relationship between the accused and the
victim. Only to a question put by the Prosecutor as to
whether he can deny a homosexual relationship, he
admitted he cannot. This does not establish the
Crl.Appeal No.115 of 2016
homosexual relationship, since there is no other
evidence suggesting such a relationship. The sodomy
and the consent indicated by the medical evidence
could only reveal the sexual inclination of the victim
and not that of the accused who is only found to be a
friend from childhood days.
21. The jealousy and resultant enmity,
projected as motive, is by reason of the relationship
developed with PW22 and PW31. PW22 deposed that she
had an affair with the victim, but categorically
stated that it was discontinued an year before his
death. PW31 is a 67 year old man, living with his
wife, son and daughter-in-law, in a residential
property which also contained a badminton court. The
victim and PW31 came into contact when the victim was
employed by PW2 a relative and electrician, to carry
out electrical work in the residential house of PW31.
The relationship was more by reason of the victim
having often stayed back after work to play badminton.
There is nothing suggestive of any relationship
between the 23 year old and the 67 year old; which
could evoke jealousy in a homosexual partner; other
than a casual friendship.
22. Moreover there is no indication of any
rupture in the friendship of the victim and accused,
suggested either by his friends, father or brother,
which would have been a natural consequence of the
jealousy nurtured by the accused. There is also
Crl.Appeal No.115 of 2016
nothing to indicate that the accused was privy to the
relationships so projected by the prosecution or that
he had at any time objected to it. The evidence of
PW32 insofar as an employment prospect in Mumbai for
the victim is of no consequence in the context of the
prosecution having not established either the
homosexual relationship between the accused and the
victim or the jealousy nurtured by the accused.
23. The motive is also projected on the basis
of Exts.P3 and P3(a) letters said to have been written
by PW30 on the instigation of the accused. Exts.P3 and
P3(a) indicate that someone had threatened PW6 with
bodily harm to his son. PW30 has admitted to the
handwriting of the contents of the letters though he
denied the writing of the address, in both the letters
and the interpolation of the name of the victim, in
the recitals in Ext.P3. Ext.P53 Report of the Forensic
Science Laboratory indicates that the handwriting in
the contents of both letters are that of PW30; having
found identity with the sample writing. However, the
handwriting with respect to the interpolation, ie: the
name of the victim, was not identifiable as that of
the accused or PW30. The handwriting of the address
was also reported to be inconclusive when compared
with the sample writings of accused and PW30. Normally
when PW30 admitted to the handwriting of the contents
of the letter there would not have been any
significance for the expert evidence. But, in the
Crl.Appeal No.115 of 2016
circumstance of this case, we find the expert evidence
to be relevant. Even for the Police it would have been
difficult to trace out the scribe of letters sent by
post, one year and two years back. Ext. P3 bears the
postal seal of October 2004 and Ext.P3(a) of
12.1.2005. This supplies veracity to the admission of
PW30, which persuades us also to accept the statement
that PW30 wrote at the instigation of the accused. An
ill-will is hence established, with the threat
levelled of dismembering the victim. This does not
lead to any conclusion of a motive as alleged by the
prosecution.
24. In this context, it has to be noticed that
though Ext.P3 and P3(a) letters indicate an enmity
between the accused and victim there is a cause
pointed out by PW6 father. PW6 specifically narrates
an incident where the victim teased the accused of his
new born nephew resembling the accused. It is also
stated by PW6 father that there was a skirmish, about
4 to 5 months before the murder, which he came to know
was instigated by the accused, near the temple, where
the accused attempted to beat up the victim. Though
the threat leveled by the accused is found to be
proved the motive alleged by the prosecution of a
homosexual relationship and jealousy still remains
shrouded in a cloud. The accused and the victim were
close friends who also quarreled at times and made up
later, as spoken of by PW6; normal in any human
Crl.Appeal No.115 of 2016
relationship. The motive or its absence is not an
essential factor in arriving at the conclusion of
guilt or innocence. But,it could be a relevant
circumstance, as one of the crucial links in the chain
of circumstances especially when the case is built on
circumstantial evidence alone. It is always one of the
corroborative circumstances that could persuade the
Court to find the accused guilty.
25. The accused was a Government employee as
is established by the evidence of PWs 34,40,41 & 42.
PW34, was working as U.D. Clerk in the office in
which the accused joined as per Ext.P37 as
L.D.Clerk/Village Assistant under the compassionate
employment Scheme. He joined duty as per Ext.P38 on
26.12.2005. Ext.P40 proceedings evidences 33 persons
having attended the chain survey training between
23.03.2006 and 22.04.2006, one of which trainees as
seen from Serial No.18 is the accused. By Ext.P39 the
accused rejoined his office after training on
24.04.2006. PW40 is the Instructor who conducted the
training at the Government Survey Training School,
Puthiyara, Kozhikode. The said witness marked and
proved Ext.P56 Attendance Register, in which the
portion marked as P56(a) at page No.12 and 13 shows
the accused to be on leave on 17.04.2006 and
19.04.2006. On 18.04.2006 the accused is said to have
attended a model exam conducted in the Training
School. PW40 stated that the accused was found
Crl.Appeal No.115 of 2016
disturbed and on repeated questioning he submitted
that he was not well. The accused left the Training
School about 1½ hours after the exam commenced in the
morning. The attendance of 18.04.2006 was marked in
the morning itself when he appeared for the
examination. It has also come out in evidence that
there was another model exam on 19.04.2006, which the
accused absented from.
26. The accused also was residing at the
Tourist Home, of which PW23 was the Proprietor. He
marked Ext.P32 Register, wherein one Praveen T. [PW33]
was allotted Room No.25. P32(a) is the entry in the
Register. P33 is the Bill Book of which P33(a) is the
carbon copy of the bill issued to the said Praveen,
which is dated 22.04.2006. The Bill Book shows the
number of persons who resided in Room 25 to be three
persons, for a duration of one month. PW33 is another
trainee, as evidenced from Ext.P40 proceedings, which
shows him at Serial No.14. PW33 categorically stated
that he had been staying in the room with the accused,
Shaji and Vinod, the latter of whom are respectively
Serial Nos.19 & 29 in Ext.P40. PW33 also marked the
original of the rent receipt as Ext.P46, the carbon
copy of which is Ext.P33(a). A specific question
regarding the receipt revealing only 3 persons has
been categorically answered. Shaji, clarified PW33,
joined them only after two days. PW33 further deposed
that the accused had attended the model exam in the
Crl.Appeal No.115 of 2016
forenoon of 18.04.2006 and was absent after that, even
at the Tourist Home. According to him the accused was
then seen at 6.30pm, on 19.04.2006 in the room
commonly shared. From the evidence of the witnesses it
is clearly established that the accused was a
Government employee who was attending training between
23.03.2006 and 22.04.2006 and on the crucial day,
ie.19.04.2006, he had taken leave of absence from the
Training School. On the evening of 18.04.2006, it is
also seen from the evidence of PW5, a friend of the
victim that the accused and the victim conferred
together. But the inference drawn of the two having
arranged an amorous rendezvous on the next day is a
mere conjecture.
27. On the fateful day, the victim left his
house in the morning and attended an examination at
Brennen College, from where he left around 12.30 P.M.
PW4 saw him off from the College premises and deposed
to the fact that the victim spoke of wanting to meet a
friend in front of MRA Bakery Thalassery. Then,
according to the prosecution, the accused and victim
were seen by PW7, a shop owner, from whose shop they
purchased Soda and Biscuits. PW7 turned hostile and
failed to identify the accused standing in the dock.
The case of the prosecution that the accused and
victim were seen last together by PW7, hence falls to
the ground. It is also the prosecution case that the
accused on his way back from Kundoor Mala, after
Crl.Appeal No.115 of 2016
allegedly committing the crime, sought directions from
PW9 and after reaching the road took PW10's
autorickshaw to travel to the bus stand. Both PW9 & 10
turned hostile and failed to identify the accused.
28. For connecting the accused to the crime,
the prosecution has further relied on MO8 shirt found
at the crime scene, the recovery of MO14 weapon and a
pair of gloves from near the scene of crime, the
purchase of the weapon and the gloves by the accused
and recovery of the dress worn by the accused on the
way back to Kozhikode, after the alleged commission of
crime. This along with the other proved circumstances
unerringly pin the guilt on the accused, is the
submission of the prosecution. We have to consider the
said links in the chain of circumstances projected by
the prosecution, one by one. We remind ourselves the
guidance provided by numerous decisions of the Hon'ble
Supreme Court of which we specifically refer to
Sharad Birdhichand Sarda v State of Maharashtra
[(1984) 4 SCC 116] which followed Hanumant v. State
of M.P [1952 SCR 1091]:
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.
Crl.Appeal No.115 of 2016
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
(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.
154. These five golden principles, if we may say
so, constitute the panchsheel of the proof of a case
based on circumstantial evidence.
29. MO8 shirt is said to have been stitched in
PW18's tailoring shop called 'Friends' Nettur; which
label is found on its inside collar. As per the
evidence of the I.O [PW44] the label led the Police to
the said shop, on 24.04.2006 from where Ext.P28
Tailoring Register was recovered. On PW18, Sajith's
statement that the aforesaid shirt was stitched at his
shop for the accused, the latter was arrested on
25.04.2006. Ext.P28(a) is the relevant entry at item
No.345 of Ext.P28 Register recovered from the shop. We
have verified the said Register and the entry; to
compare the cloth piece stapled at Serial No.345 with
Crl.Appeal No.115 of 2016
MO8 shirt. Two cloth pieces, one of which is similar
to that of MO8 shirt is seen stapled at the relevant
entry in the register.
30. In cross-examination PW18 specifically
stated that MO8 was identified by him as a shirt
stitched for the accused, on the basis of the cloth
piece marked as MO8(a), seen in Ext.P28(a) entry and
the tailoring mark/label found on the collar of the
shirt. He also stated that there are other shirts
stitched from his shop of identical cloth. To a
specific question as to whether there was any
distinguishing mark to find MO8 to be that stitched
for the accused; he stated: "but for the label and the
tailor's register, there is no other special mark". We
cannot but observe that the measurement of the shirt
was available in P28(a) entry and it was for the
prosecution to prove that the measurements of MO8
shirt tallied with that seen at that entry and matched
the accused; which they failed to do. The evidence of
PW18 is not conclusive and it cannot be said that MO8
shirt belongs to the accused. We can only find that
there was a shirt similar to the cloth of MO8 stitched
for the accused at 'Friends', Nettoor. In that
circumstance, we cannot find the prosecution to have
established without any doubt, the ownership of MO8
shirt.
31. Then comes the recovery of MO14 chopper
and MO23 pair of gloves from near the crime scene. The
Crl.Appeal No.115 of 2016
recovery was effected by the I.O allegedly on the
confession statement of the accused marked as P13(a)
in Ext.P13 Seizure Mahazar. Both the witnesses to the
seizure, PW's 14 & 15 turned hostile. The said
witnesses admitted their signature, but deposed that
they did not see the recovery nor the seizure.
According to them, they signed on the paper on the
road side as directed by the Police. They also denied
seeing the accused with the police party. The learned
Public Prosecutor has placed a number of decisions to
impress upon us that merely because the Mahazar
witnesses have turned hostile, the recovery under
Section 27 of the Indian Evidence Act cannot be
brushed aside.
32. We would first look at the decisions so
placed before us. Mathew [supra] was a case in which
the conviction and sentence awarded by the Sessions
Court under Section 302 IPC was upheld. Out of the
five occurrence witnesses, four, fully supported the
prosecution case and their evidence tallied with the
medical evidence. The murder occurred pursuant to a
wordy duel outside a toddy shop, when the accused
caught hold of the deceased from the back and stabbed
him with a dagger, which weapon was discovered, on
confession made. One of the grounds raised by the
accused was that the recovery was unacceptable since
the mahazar witnesses turned hostile. It was held that
if the I.O's evidence, regarding the confession
Crl.Appeal No.115 of 2016
statement and recovery, is blemish free, it can
certainly be accepted. Similar was the finding of the
Hon'ble Supreme Court in Mohammed Aslam wherein on the
strength of the information supplied by A1, a
semi-automatic US carbine magazine along with 113
cartridges were recovered from his house. The two
panch witnesses who signed the recovery mahazar turned
hostile on the basis of which the accused challenged
the acceptability of recovery. Therein relying on the
evidence of the I.O, it was found that while recovery
was effected from the house of the accused, none
residing in the house were examined by the accused,
for the purpose of denying the recovery. Modan Singh
was again a similar case in which it was found that if
the evidence of the I.O, who made the recovery, is
convincing, the evidence as to recovery cannot be
rejected merely on the ground that the seizure
witnesses turned hostile. But despite the recovery
being accepted the accused was acquitted as the last
seen together theory was not established. Hence there
could be no conviction based on the solitary evidence
of recovery and it could only form a link in the chain
of circumstances.
33. Mani v. State of TamilNadu [(2009) 17
SCC 273] was a case in which the weapon and the
bloodstained clothes were discovered on the confession
statement made by the accused. The witnesses to the
seizure turned hostile. The discovery admittedly was
Crl.Appeal No.115 of 2016
made from 300 feet away from where the dead body was
found. The Hon'ble Supreme Court disbelieved the
recovery, finding that it was impossible to believe
that the Police had not searched the nearby spots and
that the discovered objects remained in the open for
more than 10 days. It was held so in paragraph 26:
26. The discovery is a weak kind of evidence and
cannot be wholly relied upon and conviction in such
a serious matter cannot be based upon the discovery.
Once the discovery fails, there would be literally
nothing which would support the prosecution case. We
have already held that the prosecution has failed to
prove that the house where alleged bloodstains were
found belonged exclusively or was possessed
exclusively by the appellant, we have further
pointed out that the discovery was absolutely
farcical. There is one other very relevant factor
ignored by both the courts that the prosecution
never made any attempts to prove that the clothes
belonged to the appellants. There is literally no
evidence to suggest anything to that effect.
Therefore, even if we accept the discovery, it does
not take us anywhere near the crime. Both the courts
below have ignored this very important aspect. Once
these two important circumstances are disbelieved,
there is nothing which would remain to support the
prosecution theory.
From a reading of the aforesaid decisions we find that
the recovery made could be accepted only if there were
other compelling circumstances connecting the accused
to the crime. Even if, for the moment, we accept the
I.O's evidence with respect to the recovery having
been effected on the basis of the confession made by
the accused; there can be no conviction on the basis
of such recovery alone.
34. The accused is said to have further
Crl.Appeal No.115 of 2016
confessed to having purchased the weapon from PW15
blacksmith as per the confession statement marked as
Ext.P19(a) in P19 seizure mahazar. Likewise, the I.O.
speaks of the accused also having confessed to have
purchased biscuits and soda from the shop of PW7. To
bring the above confessions under Section 27 of the
Evidence Act, a sample metal seal as found in the
blade of MO14 weapon was seized as MO13 from PW15.
Similarly, by Ext.P5 seizure mahazar sample biscuit
packets, as found at the scene of occurrence, was
seized by P5 seizure mahazar, again in an attempt to
bring it under Section 27. The metal seal recovered
from PW15 and the sample biscuit packet recovered from
PW7's shop were not objects concealed by the accused.
The presence of the said objects in the place from
which they were seized was not within the exclusive
knowledge of the accused, which knowledge alone comes
under Section 27 as a confession acceptable in
evidence.
35. Pulukuri Kottaya considered the
construction of Section 27 and held that it does not
nullify the ban imposed by Section 26. It was held:
"... it is fallacious to treat the "fact discovered"
within the section as equivalent to the object
produced; the fact discovered embraces the place from
which the object is produced and the knowledge of the
accused as to this, and the information given must
relate distinctly to this fact. Information as to
Crl.Appeal No.115 of 2016
past user, or the past history, of the object
produced is not related to its discovery in the
setting in which it is discovered.(sic para 10)". The
murder, tried in that case, arose from factional
fights and the statements admitted in evidence under
Section 27 though related to the weapons used also
contained confessions regarding overt acts, all of
which; except the information which led to the
discovery of the object, were held to be inadmissible.
The matter was remanded to the trial Court to consider
whether, after discarding the evidence improperly
admitted, there was sufficient evidence to justify the
conviction. It was held: "Except in cases in which
the possession, or concealment, of an object
constitutes the gist of the offence charged, it can
seldom happen that information relating to the
discovery of a fact forms the foundation of the
prosecution case. It is only one link in the chain of
proof, and the other links must be forged in manner
allowed by law".
36. Pulukuri Kottaya was referred to in
Himachal Pradesh Administration v. Shri.Om Prakash
[(1972) 1 SCC 249]. It was a similar circumstance of
the recovery of dagger used, based on a confession and
a further confession made by the accused leading the
Police to PW11 from whom the dagger was purchased. The
further confession as to the purchase made was found
to be admissible only under Section 8 of the Evidence
Crl.Appeal No.115 of 2016
Act. Paragraph 14 is extracted here under:
14. In the Full Bench Judgment of Seven Judges in
Sukhan v. Crown8 which was approved by the Privy
Council in Pulukuri Kotayya case, Shadi Lal, C.J.,
as he then was speaking for the majority pointed out
that the expression "fact" as defined by Section 3
of the Evidence Act includes not only the physical
fact which can be perceived by the senses but also
the psychological fact or mental condition of which
any person is conscious and that it is in the former
sense that the word used by the Legislature refers
to a material and not to a mental fact. It is clear
therefore that what should be discovered is the
material fact and the information that is admissible
is that which has caused that discovery so as to
connect the information and the fact with each other
as the "cause and effect". That information which
does not distinctly connect with the fact discovered
or that portion of the information which merely
explains the material thing discovered is not
admissible under Section 27 and cannot be proved. As
explained by this Court as well as by the Privy
Council, normally Section 27 is brought into
operation where a person in police custody produces
from some place of concealment some object said to
be connected with the crime of which the informant
is the accused. The concealment of the fact which is
not known to the police is what is discovered by the
information and lends assurance that the information
was true. No witness with whom some material fact,
such as the weapon of murder, stolen property or
other incriminating article is not hidden, sold or
kept and which is unknown to the Police can be said
to be discovered as a consequence of the information
furnished by the accused. These examples however are
only by way of illustration and are not exhaustive.
What makes the information leading to the discovery
of the witness admissible is the discovery from him
of the thing sold to him or hidden or kept with him
which the police did not know until the information
was furnished to them by the accused. A witness
cannot be said to be discovered if nothing is to be
found or recovered from him as a consequence of the
information furnished by the accused and the
information which disclosed the identity of the
witness will not be admissible. But even apart from
the admissibility of the information under Section
27, the evidence of the Investigating Officer and
Crl.Appeal No.115 of 2016
the panchas that the accused had taken them to PW 11
and pointed him out and as corroborated by PW 11
himself would be admissible under Section 8 of the
Evidence Act as conduct of the accused.
37. The recoveries made on the basis of the
confessions hence has absolutely no relevance. The
purchase of the weapon as also the biscuits and soda,
if proved could constitute very strong links
connecting the accused to the crime itself. It could
reveal his prior conduct in preparation of the crime
and as evidence of the two being last seen together,
respectively. The blacksmith [PW15] identified the
weapon as one manufactured by him immediately prior to
the incident. The seal affixed on the blade of the
weapon was similar to MO13 metal seal affixed by the
blacksmith in all objects manufactured by him. Ext.P20
Bill Book and Ext.P20(a) carbon copy of the bill
issued by PW15 with respect to MO14 weapon was proved.
In Court PW15 said that he had manufactured the weapon
for one Shinoj, however in Ext.P21, Section 164
statement the name spoken of was of Vijesh; both
brought out in cross-examination which he admitted to
be a mistake. We verified the carbon copy of the bill
[P28(a)], which does not clearly reveal the name of
the purchaser. But, PW15 spoke of the purchaser having
approached him thrice. He vividly remembers the
purchaser having brought a 'leaf' [the reference
obviously is to the 'leaf spring' of a vehicle] of a
bus which could not have been used for making the
Crl.Appeal No.115 of 2016
weapon. It is PW15's evidence that the 'leaf' brought
by the purchaser was retained in the shop and the
weapon was made from the 'leaf' of a jeep. The
blacksmith, despite his vivid memory, did not identify
the accused as the person who purchased the weapon
from him. PW7 also failed to identify the accused and
denied the prosecution version of the accused along
with the victim, having purchased biscuits and soda
from his shop. This demolishes the circumstance
regarding the prior conduct of preparation for the
crime by purchase of a weapon and the two having been
last seen together. The witnesses, in the context of
they having turned hostile, cannot form the basis of
the prosecution case of prior conduct of the accused
or the last seen together theory under Section 8 of
the Evidence Act.
38. Now we come to the recovery of blood-
stained MO16 to MO19, the shoes and dress, the accused
is alleged to have worn after the commission of the
crime. Even according to the I.O., the accused was
arrested on 24.04.2006, when he is said to have made
the confession. One regarding the weapon and gloves,
allegedly used for commission of the crime, hidden
near the crime scene. Then, as to the dress and shoes
he wore back to Kozhikode, which were hid at
Kozhikkode. Before we look at the later recovery we
notice that Ext.P21 owner of the shop, from which the
accused is said to have purchased a pair of gloves,
Crl.Appeal No.115 of 2016
recovered along with the weapon, failed to identify
the accused as the one who purchased the gloves from
his shop. Even the I.O does not have a case of the
accused having pointed out the shop from where the
gloves were purchased. However PW21, the Manager of
the shop, deposed that some days after the murder a
police party came to the shop accompanied by a person,
whom he could not identify. The purchase of the
gloves hence has not been proved.
39. The recovery of the shoes and dress has
been proved by the I.O and stands corroborated by the
Mahazar witnesses. It is also seen from the FSL report
that the blood stains found in the shoes and shirt
were identified to be of human origin and group-B. The
FSL report at Ext.P73 also specifically spoke of the
blood available in all the materials including the
dress of the victim as also MO8 shirt recovered from
the crime scene to be of group-B and of human origin.
However, the fact remains that the said recovery was
made after 10 days. As we noticed, the I.O arrested
the accused on 25.04.2006, on which date he made the
confessions (Exts.P68 and 69) above referred. The
weapon and pair of gloves were recovered on the same
day. Presumably the accused was produced before the
Magistrate and remanded to judicial custody. The I.O
also stated that the accused was taken into Police
custody then on 04.05.2006 and the recovery as per the
confession statement was carried out on 05.05.2006.
Crl.Appeal No.115 of 2016
Ext.P68 & 69 confessions leading to the recovery of
the dress from near Calicut Tourist Home, are recorded
on 25.04.2006. It specifically speaks of the dress
having been concealed at Kozhikode. By that time the
police definitely would have come to know of the
deputation of the accused, who was a Government
employee. The delay in making the recovery makes it
unreliable.
40. We again refer to Shri Om Prakash,
wherein the delay of 24 hours in making the recovery
was found to be fatal; making the recovery
unacceptable. We extract paragraph 15 of the said
decision:
15. We then come to the recovery of the Second
February of pant, the account books and the vouchers.
These, however, cannot in our view be relied upon
because PW 28 had information relating to them which
had been furnished by the accused more than 24 hours
before and the description given by him was such that
they could have been discovered. At any rate the long
delay does not lend assurance to the discovery. It
appears from the application made on February 2, to
the Magistrate that the accused was arrested on
February 1, 1967, and at his instance and from his
possession one sweater, one coat and one blanket blood
stained, have been recovered and in addition one blood
stained warm pant, one duster, one bag containing 5
registers are still to be recovered on the pointing
out of the accused but the remand of the accused is
due to expire at 1 p.m. and accordingly it was
requested that a further remand for 7 days be given
and the accused made over to the police and orders be
passed. The accused is alleged to have given the
information that he had hid them under the stone slab
near Krishna Nagar Ganda Nala which he had thrown away
in the sewage and which he said will point out and get
them recovered. The recovery itself is under Ext. P-7,
to which PW 2, PW 13 and Manohar Lal, PW 14 who was
picked up on the "rasta" when he was summoned by the
Crl.Appeal No.115 of 2016
constables are witnesses. According to PW 14 the
Thanedar was going ahead and went down to the Nala,
when the constable summoned him and he went there. He
further says that the Thanedar sent a constable down.
The accused had a talk with Thanedar. The constable
took out from below a stone slab five registers in a
bag, the accused was standing on a stone. At this
stage the prosecutor sought permission to cross-
examine the witness and it was given. In the cross-
examination he denied having signed the Memo at the
spot and said that he had signed it at the Thana. He
also said it was incorrect to suggest that the Memo
was read over to him and he signed it. Whether the
articles recovered were planted at the place from
where they were alleged to be recovered or not as
suggested by the learned Advocate for the accused, the
evidence referred to certainly goes against the
prosecution version that the account books, vouchers
and the pant were recovered at the instance of the
accused. The police appears to have known the place
from where these articles were alleged to have been
recovered and therefore it cannot be said that they
were discovered as a consequence of the information
furnished by the accused.
41. The learned Counsel for the accused
specifically argued that the delay puts to peril the
acceptability of the recovery under Section 27, since
the Police had sufficient time and opportunity to
plant the evidence, which we find to be a reasonable
argument. The prosecution did not choose to explain
the delay nor was the I.O questioned on the delay, in
cross-examination. There is no mandate that unless the
delay is questioned in cross-examination, it cannot be
raised at the time of argument or in appeal. The
prosecution having not explained the delay, the
accused need not put a suggestion and enable a
clarification by the I.O. We have examined the full
shirt, which also bears the tailoring mark 'Friends',
Crl.Appeal No.115 of 2016
Nettoor. There is no attempt to identify the shirt
through PW18 tailor or to establish that they in fact
belong to the accused or that at least they fit the
accused.
42. From the discussion above we have to see
whether the evidence regarding the circumstances
proved conclusively, find the prosecution having
established the guilt of the accused, without even a
modicum of doubt as to his innocence as declared in
Sharad Birdhichand Sarda . With the above caution in
our mind we examine the circumstances to find whether
the chain of circumstances is so complete as to find
the guilt of the accused conclusively, without any
reasonable ground for any conclusion consistent with
the innocence of the accused. As we already noticed
the victim met with homicidal death caused by
injuries, most probably inflicted by a weapon similar
to MO14 chopper. There is also a strong probability of
the victim having been subjected to sodomy before he
was killed; which sexual act was also on consent. The
said fact is an inference possible from the informed
opinion of the expert, the Doctor, based on the nature
of the injuries caused in the anus. The friendship
between the accused and the victim is fairly well
established but not the homosexual relationship. The
love affair of the victim with PW22 and his
relationship with PW31 are not relevant at all to the
crime, since there is nothing to show that there was
Crl.Appeal No.115 of 2016
any enmity arising in the mind of the accused for
reason of the jealousy due to the above affairs;
especially when the homosexual relationship has not
been proved. That the victim was searching for an
employment outside the State again is of no
consequence.
43. The victim wrote the examination in the
forenoon of 19.04.2006 and left the college by 12.30
p.m and was last seen by PW4. The accused a Government
employee was deputed for training at Kozhikode during
the said period and was staying at a Tourist Home in
Kozhikode. The accused was absent from the venue of
training as also the Tourist Home from the noon of
18.04.2006 to the evening of 19.04.2006. The accused
also talked with the victim on the evening of
18.04.2006. However, there is nothing to indicate that
they planned a meeting on the next day. The victim was
then found dead in a desolate cashew plantation. These
are the circumstances that are proved from the
evidence led by the prosecution which does not connect
the accused to the actual murder.
44. The version of the prosecution that the
accused and the victim were last seen together by PW7
from whose shop they purchased biscuits and soda is
not proved. Praful Sudhakar Parab is not applicable,
since that was a case in which the deceased and
accused were seen last together and thereafter the
former went missing and later his body was recovered.
Crl.Appeal No.115 of 2016
Similarly PWs 9 and 10 who were said to have seen the
accused going back from the scene of occurrence denied
the said fact. MO8 shirt recovered from the scene of
occurrence, though stitched by PW18 is not
unequivocally established to be that of the accused.
The cloth piece found in Ext.P28(a) entry in Ext.P28
register is only a cloth similar to that of MO8.
Liyakat was a case in which a toddler left in the
custody of neighbours went missing and later his body
was recovered, buried from inside the house of one of
the neighbours. The Hon'ble Supreme Court in such
circumstances found the silence of the accused
regarding the presence of the body of the toddler, who
was in their custody, inside their house which was in
their exclusive user to be a very vital circumstance
adding to the chain of circumstances. There is no
circumstance in this case which makes the silence of
the accused, so telling.
45. The recovery of the weapon was attempted to
be proved by the I.O but denied by the mahazar
witnesses. The weapon was also seized from near the
crime scene. As the learned Counsel for the petitioner
argued, on detection of the dead body on the very same
day, Dog No.163 belonging to the Police Dog Squad was
brought to the crime scene as spoken of by PW25 Police
Constable, who is a Dog Handler. The weapon and gloves
were recovered as per Ext.P13 mahazar from the alleged
hiding place, which according to the seizure mahazar
Crl.Appeal No.115 of 2016
(Ext.P13), is only 15 meters to the west of the crime
scene. It has been noticed that in Mani the weapon
was found 300 feet away while the weapon and the
gloves in the present case was found far near within
15 meters i.e, less than 50 feet from the scene of
occurrence. The purchase of MO14 chopper and MO23 pair
of gloves could not be pinned on the accused. The
recovery, of MOs 16 to 18 dress allegedly worn by the
accused, was made on 05.05.2006 as per confession
statement of 25.04.2006, which makes the said recovery
unacceptable as found in Shri Om Prakash.
46. The only circumstance proved is the
threat leveled by the accused to dismember the victim
in letters addressed to the father PW6, more than an
year back, after which the two continued as friends.
Even if the I.O's proof as to recovery of the weapon
is believed, that together with the absence of the
accused from the training venue on the crucial day and
other benign circumstances proved cannot bring home
the guilt of the accused conclusively. They do not
together form a chain of circumstances conclusively
leading to the guilt of the accused; leaving no room
for any other hypothesis ie: a possibility of the
accused being innocent. In the above circumstances we
have to definitely give the benefit of doubt to the
accused and acquit him, the prosecution having failed
to establish beyond reasonable doubt that the accused
had perpetrated the crime.
Crl.Appeal No.115 of 2016
The appeal is allowed giving the accused, the
benefit of doubt, and the conviction and sentence
passed in Sessions Case No. 444/2009 of the 4th
Additional Sessions Judge, Thalasseri is hereby set
aside and the accused/appellant herein shall be
released forthwith if he is not required in any other
crime.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
M.R.ANITHA
JUDGE
sp/jma09/02/2021
