Kerala High Court
Shamsudheen @ Bapputty vs State Of Kerala on 31 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS.JUSTICE M.R.ANITHA
WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943
CRL.A.No.289 OF 2015(D)
AGAINST THE JUDGMENT IN S.C.NO.302/2014 DATED 12-02-2015 OF THE
COURT OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE-I, MANJERI
[CP NO.28/2014 OF JUDICIAL FIRST CLASS MAGISTRATE, NILAMBUR]
[CRIME NO.194/2014 OF NILAMBUR POLICE STATION, MALAPPURAM]
APPELLANT/ 2ND ACCUSED:
SHAMSUDHEEN @ BAPPUTTY, AGED 30 YEARS, S/O UMMER,
KUNNASSERY HOUSE, UNNIKKULAM, CHULLIYODE,
AMARAMBALAM VILLAGE, MALAPPURAM DISTRICT.
BY ADVS.
SRI.V.JOHN SEBASTIAN RALPH
SRI.V.JOHN THOMAS
SRI.E.A.HARIS
KUM. KEERTHANA SUDEV
SRI. RALPH RETI JOHN
SRI.VISHNU CHANDRAN
RESPONDENT/ COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADDL.DIRECTOR GENERAL OF PROSECUTION
SRI.SURESH BABU THOMAS
BY SPECIAL PUBLIC PROSECUTOR SRI.N.K.UNNIKRISHNAN.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2021,
ALONG WITH CRL.A.607/2015(A), CRL.A.303/2016(A), THE COURT ON
31.03.2021 DELIVERED THE FOLLOWING:
Crl.Appeal No.289/2015 & - 2 -
connected cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS.JUSTICE M.R.ANITHA
WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943
CRL.A.No.607 OF 2015
AGAINST THE JUDGMENT IN S.C.NO.302/2014 DATED 12-02-2015 OF THE
COURT OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE-I, MANJERI
[CP NO.28/2014 OF JUDICIAL FIRST CLASS MAGISTRATE, NILAMBUR]
[CRIME NO.194/2014 OF NILAMBUR POLICE STATION, MALAPPURAM]
APPELLANT/ COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADDL.DIRECTOR GENERAL OF PROSECUTION
SRI.SURESH BABU THOMAS
BY SPECIAL PUBLIC PROSECUTOR SRI.N.K.UNNIKRISHNAN.
RESPONDENTS/ ACCUSED 1 & 2:
1 BIJU B.K.,
S/O KRISHNAN NAIR, BIJUNA HOUSE,
KALLEMPADAM, NILAMBUR.
2 SHAMSUDHEEN @ BAPPUTTY,
S/O UMMER, KUNNASSERY HOUSE, UNNIKULAM, CHULLIYODE,
AMARAMBALAM VILLAGE.
ADDL.R3 CHIEF SECRETARY TO GOVERNMENT,
GOVERNMENT SECRETARIATE, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM.
Crl.Appeal No.289/2015 & - 3 -
connected cases
ADDL.R4 ADDITIONAL CHIEF SECRETARY (HOME),
GOVERNMENT SECRETARIATE, GOVERNMENT OF KERALA,
THIRUVANANTHAPURAM.
ADDITIONAL RESPONDENTS 3 & 4 ARE IMPLEADED AS PER
ORDER DATED 09/03/2021.
R1 BY ADV.SRI.P.K.VARGHESE
R2 BY ADV.SRI.V.JOHN SEBASTIAN RALPH
R2 BY ADV.SRI. RALPH RETI JOHN
R3-R4 BY SENIOR GOVT.PLEADER SRI.SUMAN CHAKRAVARTHY
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
19.03.2021, ALONG WITH CRL.A.289/2015(D), CRL.A.303/2016(A), THE
COURT ON 31.03.2021 DELIVERED THE FOLLOWING:
Crl.Appeal No.289/2015 & - 4 -
connected cases
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MRS.JUSTICE M.R.ANITHA
WEDNESDAY, THE 31ST DAY OF MARCH 2021 / 10TH CHAITHRA, 1943
CRL.A.No.303 OF 2016
AGAINST THE JUDGMENT IN S.C.NO.302/2014 DATED 12-02-2015 OF THE
COURT OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE-I, MANJERI
[CP NO.28/2014 OF JUDICIAL FIRST CLASS MAGISTRATE, NILAMBUR]
[CRIME NO.194/2014 OF NILAMBUR POLICE STATION, MALAPPURAM]
APPELLANT/ ACCUSED NO.1:
BIJU B.K., S/O.KRISHNAN NAIR,
BIJUNA HOUSE, KALLEMPADAM,
NILAMBUR, MALAPPURAM DISTRICT.
BY ADVS.
SRI.P.K.VARGHESE
SRI.R.RANJITH (MANJERI)
SRI.K.R.SHYNE
SRI.K.R.ARUN KRISHNAN
SMT.SANJANA RACHEL JOSE.
RESPONDENT/ STATE:
THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 31
FOR THE ASSISTANT COMMISSIONER OF POLICE, D.C.R.B.,
THRISSUR CITY IN NILAMBUR POLICE STATION.
BY ADDL.DIRECTOR GENERAL OF PROSECUTION
SRI.SURESH BABU THOMAS
BY SPECIAL PUBLIC PROSECUTOR SRI.N.K.UNNIKRISHNAN.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
19.03.2021, ALONG WITH CRL.A.289/2015(D), CRL.A.607/2015(A), THE
COURT ON 31.03.2021 DELIVERED THE FOLLOWING:
Crl.Appeal No.289/2015 & - 5 -
connected cases
K. Vinod Chandran & M.R. Anitha, JJ.
--------------------------------------------
Crl.Appeal Nos.289/2015, 607/2015 & 303/2016
--------------------------------------------
Dated, this the 31st day of March, 2021
JUDGMENT
Vinod Chandran, J.
Murder most foul, turned into a sensation with the
arrest of a political front man of the area; the Personal
Assistant of a Minister and the Secretary of the Office of
the Local Committee of the then ruling party. The Police
went full hog with the investigation commenced by a Circle
Inspector [CI], continued by a Deputy Superintendent of
Police [Dy.SP] and then an Assistant Commissioner of Police
[ACP]; who were examined as PWs.103, 105 & 108; under the
supervision of an Additional Director General of Police
[ADGP]. The political overtones led the investigation
astray and the trial went haywire with tutored witnesses,
concocted confessions and manufactured evidence asserts the
appellants, who are the two convicted of the charges
levelled against them.
2. The prosecution went to trial parading a
whooping 108 witnesses and marking more than 264 exhibits
and MO-1 to MO65. The defence examined one witness and
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marked four portions of 161 statements as also a remand
report dated 11.02.2014. The Sessions Judge, who conducted
the trial, listed out 140 circumstances and found the
accused to have had a common intention of committing
murder, in pursuance of which the deceased was wrongfully
confined, raped and killed; after which the evidence was
destroyed and the ornaments of the deceased
misappropriated. The Sessions Judge acquitted both the
accused under Section 235(1) of Cr.P.C. for the offences
punishable under Sections 376(2)(k), 376A and 120B of the
Indian Penal Code. Both the accused were sentenced for
various terms, to run concurrently, under Sections 302,
376(1), 201, 404 and 342 read with Section 34 IPC and fine,
with default sentences on failure of payment of fine.
3. Sri.P.K.Varghese, learned Counsel appearing for
the 1st accused, submitted that the version of the
prosecution is unbelievable and the witnesses paraded
before Court are artificial, making the evidence led highly
suspicious. There is no last seen theory as attempted to be
projected. The commission of the crime and removal of the
corpse as discernible from the evidence led is highly
improbable. The witnesses were questioned after a long
delay. No blood stains or any other incriminating material
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was recovered from the alleged scene of occurrence. The
recoveries made were challenged one-by-one on various
aspects and specifically on the ground of many of them
being articles of common use. A1 was implicated only
because of his presence at Unnikkulam, an area where A1 was
present for a house warming on the said day. The motive
projected and the earlier attempts are just a figment of
imagination. A1 was throughout available in the locality
and accompanied the brother of the deceased after the
deceased was found missing. The accused were arrested on
10.02.2014 after which literally, all hell broke loose,
according to the defence, in the print and electronic
media. The prosecution's attempt to nail him is purely by
reason of political vendetta; to which the Police willingly
succumbed.
4. Sri.V.John Sebastian Ralph appearing for A2
also challenged each of the recoveries made and from the
evidence led itself it is clear that they were planted. The
delay with which the witnesses were questioned point to
statements taken in the course of the initial investigation
having been suppressed from Court. The witnesses who
identified A2 are all strangers and before their statements
were taken, the photographs of the accused were published
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in the print media and flashed in the electronic media. The
presence of A2 at Unnikkulam is only natural since he
resides within that area. The prosecution case is far
fetched and fanciful. The learned Counsel seeks for
acquittal of both the accused.
5. The learned Prosecutor, Sri.Suresh Babu Thomas
[Additional Director General of Prosecution] asserts that
there is a complete chain of circumstances as revealed in
evidence, which pinpoints the accused as the perpetrators
of the murder and disposal of the dead body. The recoveries
made, on the basis of confession statements, prove the
preparation, the murder and destruction of evidence. The
motive and the earlier attempts to murder have been
testified to by a host of witnesses. The deceased was last
seen on the stairs to the Office, where A1& A2's presence
is established. The accused were seen taking out the sack
in which the body was found floating and were also seen
near the pond. That it was a homicidal death is proved by
medical evidence; which also reveal a vengeful assault. The
circumstances proved from the evidence led by the
prosecution clearly establish the guilt of the accused.
6. We also heard Sri.N.K. Unnikrishnan, Special PP
appointed long back; without communication of the order,
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after the hearing was concluded. The Special PP commenced
his arguments with the State's appeal and conceded that the
State is not pressing the charge under Section 376(2)(k)
and 376A IPC on which the appellants were acquitted by the
trial Court. But, the evidence on record is sufficient to
find conspiracy and the accused ought to be convicted under
Section 120B. There is a discrepancy in the recording of
the time in which the deceased was last seen. Stress was
laid on phone calls between the accused. The recoveries
have been gone over with the help of a sketch handed over
across the Bar and it is urged that none of the recoveries
have been seriously challenged in cross-examination. As to
the delay in examination of various witnesses under Section
161, it is stated that this is a unique case in which the
charge-sheet was filed in 90 days and the delay is
inconsequential. The injury suffered by A1 is not properly
explained. The evidence led establish the crime and
implicates the accused unequivocally. In addition, an
application has been filed for acceptance of a document,
which is the bail application filed by A2, for the purpose
of urging this Court to rely on a categoric admission made
in the application. It is also argued that there can be no
privilege claimed under Section 126 of the Evidence Act, as
connected cases
held in Anantasayanam P.G. & Others v. Miriyala Sathiraju &
Others [AIR 1998 AP 335 = 1998 KHC 1738] and Chaman Lal &
Others v. Sunder Lal [AIR 2016 HP 83 = 2016 KHC 2966].
THE PROSECUTION CASE:
7. A middle-aged spinster coming from an
improvised family, engaged as a Sweeper in three offices,
was found murdered; huddled into a sack and submerged in a
pond. The deceased left for her work in the morning and was
seen in the building in which her work places are located
between 9.00 and 9.45 a.m on 05.02.2014. She was last seen
going into the Office of the political party ('Party
Office' hereinafter) and was not seen thereafter. A1, the
Office Secretary of a political party, in which office also
the deceased was engaged as a Sweeper, for reason of the
threats levelled of exposing him, murdered the woman by
smothering and suffocating with a ligature along with A2. A
man missing case was registered on the next day and on
09.02.2014 a body in a jute sack was seen floating in a
pond which was identified as that of the missing person.
The medical evidence was to the effect that death was due
to strangulation and smothering and there was evidence of
brutal attack on the woman before death as evidenced by the
injuries on the chest and the vulva and perineum; the
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latter of which is indicative of a vengeful murder. The
motive was the threat levelled by the deceased to expose
the flirtatious activities of A1, which were even carried
on inside the Party Office. There is evidence to indicate
A1 having attempted to murder the deceased earlier.
8. The murder was carried out inside the computer
room of the Party Office, after which the body was huddled
into a jute sack and carried to the goods vehicle of A2 and
removed from the scene. The goods vehicle was parked inside
a residential compound near the roadside at Unnikkulam,
till evening. The body was disposed of in the night, in a
pond after tying it with two stones for the purpose of
submerging it. The dress worn by the deceased was burnt and
the charred remains thrown in a canal. After the body was
recovered the accused were arrested since their mobile
phones were seen in the location where the pond is situated
as per the details collected from the Cyber-Cell. On
confessions made by both the accused the personal effects
of the deceased including her ornaments were recovered and
so were the articles purchased in preparation of the crime
and those procured for destruction of evidence. It is the
case of the prosecution that the above circumstances
unerringly point an accusing finger at the appellants.
connected cases
IDENTIFICATION OF THE DECEASED & CAUSE OF DEATH:
9. The body was first seen by PW-10 the employee
of PW-11, who owns the property in which the pond exists.
PW-10, on the evening of 09.02.2014 went to the property to
fix a new pump for the purpose of irrigating the land with
the water in the pond. While he was waiting for the
technician, he noticed a floating sack with a human leg and
arm protruding out. He immediately called his employer
PW-11 and in his scooter went to the Pookkottupadam Police
Station. PW-89 the Sub Inspector of Police recorded FIS,
Ext.P4 and lodged P4(a) FIR dated 09.02.2014 at 5.45 p.m.
10. On recovery of the body, the next day, PW-1,
the brother of the deceased looked only once, since he was
a heart patient, but still identified the body. PW-1's wife
PW4 clearly identified the body especially from the
peculiar shape of the leg of the deceased and her long
toes. PW-4 also identified her sister-in-law from her hair,
which used to be dyed with her help. The undergarment found
on the body was identified as that purchased by PW1 at
Erode and given to the deceased by PW-4.
11. The identification of the close relatives is
further fortified by the artificial dentures MO7, found in
the body which were identified by PW-40 a Dentist, whose
connected cases
patient the deceased was. The Dentist, who was also a
neighbour, produced Ext.P25 Diary where he enters the
details of his patients and the procedure carried out on
them. Ext.P25(a) is the portion in the Diary wherein the
fixation of artificial dentures was noted. PW-41 the staff
of the Dentist deposed on the seizure of Ext.P25 having
been made by the Police as per Ext.P26 seizure mahazar.
Samples were collected by PW-86, from the sisters and
brothers of the deceased for conducting DNA test. The DNA
test by Ext.P246 established the deceased had matrilineal
connection with the persons from whom samples were taken,
who were her siblings. The identity of the deceased hence
stands proved.
12. PW-80 is the Doctor who conducted the
post-mortem on the body. He deposed with the aid of Ext.P75
postmortem report. The body showed five ante-mortem
injuries, the first of such injuries was the fracture of
ribs 2 to 9 on the right side and 4 to 9 on the left side,
with minimal blood infiltration at the fracture sites. As
per the Doctor's opinion the said injuries could have been
caused by stamping on the chest while the victim was lying
down or sitting with the back resting firmly on something,
like a wall. The second and third injuries are respectively
connected cases
lacerated wound on the back of head just to the left
mid-line with surrounding blood infiltration and contusion
on left side of forehead, left to mid-line just above the
left eyebrow. The second injury as per expert opinion could
have been caused by hitting on a protruding hard surface,
like the edge of a wall or a table and the third likewise
by a hard object. The fourth injury was a faint pressure
mark found transversely over the middle and lower one
third, on the front of neck with fracture on the thyroid
cartilage and blood infiltration in right thyrohyoid
membrane, which as deposed by PW-80 was suggestive of
ligature strangulation using the adhesive plaster found
loosely around the neck (MO28). The fifth injury was a
penetrative lacerated circular wound, heavily contused with
inverted dragged edges over posterior part of vulva and
perineum at mid-line. The Doctor opined that the said
injury by itself could cause death independently by reason
of neurogenic shock.
13. The cause of death as spoken of by PW-80 was
due to combined effect of smothering (binding of plaster
over mouth and nose) and constricting force around neck
with a ligature. There was also evidence of forcible
penetrative injuries to genital area which was capable of
connected cases
producing neurogenic collapse. The plaster marked as MO28
recovered from the body had a length of 51 cms which was
found loosely around the neck of the corpse. The
circumference of the neck is deposed to be 32 cms. and the
plaster had longitudinal wrinkles and on its under surface
tufts of scalp hair. The longitudinal wrinkles are
suggestive of use of the plaster as ligature. The expert
opinion of the Doctor who conducted the postmortem; the
report of which is produced as Ext.P75, establishes death
by homicide.
14. The appellants-accused have a specific case
that the allegation of penetration with the foreign object
and the story of a mop having been used is a figment of
imagination. It is urged that there is a suspicion as to
the post-mortem carried on going by the dates seen in
Ext.P75. Ext.P75 shows three days; on the first page
10.02.2014, on the second and third 11.02.2014 and where
the Report is signed by PW-80, the doctor who conducted the
post-mortem, 15.02.2014. It is to advance the charges under
Section 376 that an inspection was conducted and a mop
recovered from the scene of occurrence. The FSL report
having not brought forth any incriminating material, PW-108
speaks of a confession having been made with respect to the
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mop used for penetrating the vagina having been destroyed
in the incinerator available with the Municipality. The
free access to such incinerator available with the local
body has not been established. If such free access was not
available, necessarily A1 would have had to use his
influence through another. Despite the post-mortem having
disclosed a penetrated injury to the vagina, grievous
enough to even cause death, it is not clear as to how the
same was caused. The anomaly in dates have been explained
by PW-8 as an inadvertent error.
15. The Post mortem would have commenced and
concluded on 10.02.2014 itself since the body was recovered
from the pond on the morning of 10 th and the funeral was
conducted on the same day, as is deposed by PW-1. Ext.P76 a
Report of inspection of the scene of occurrence by a
medical team, was also authored by PW-80. The said report
also suffers from similar infirmity in dates; the first
page shows 10.02.2014, and beneath the signature
28.02.2014. Ext.76 Report also speaks of the crime scene
visit on 14.02.2014 on the first page where the date shown
is 10.02.2014. The disparity in dates raise serious
apprehensions regarding the medical evidence and the
medical officer having prepared the report on the dictates
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of the police. This aspect according to the accused plagues
the entire investigation.
THE MOTIVE:
16. A motive is very relevant when the prosecution
case is based on circumstantial evidence. Here the
prosecution with a host of witnesses seeks to establish
that A1 is of loose morals; the threat to disclose which,
had resulted in A1 harbouring enmity against the deceased
leading to her murder. PW-56 is a resident of the locality
who belongs to Kozhikode and came to Nilambur after
marriage. She approached A1 to facilitate an Educational
Loan for her daughter and developed close acquaintance with
him. She speaks of having had regular contact over phone
with A1 extending to almost 5 to 10 times a day. She
specifically speaks of not being able to contact A1 on the
night of 05.02.2014. But, A1 called her around 1'O clock in
the night to inform her that he had been attending a
housewarming function. He also sang a song over the phone,
which he claimed to have sung at the function he attended.
She also claims that after the disappearance of the
deceased, when she asked him about the same, A1 had
informed her that the police were making enquiries and
advised her not to make regular calls since the Cyber-Cell
connected cases
was tracking long duration calls. PW-91 an acquaintance of
A1, who was the Gardner in the Museum and a member of the
Union formed by A1, also spoke of A1's relationship with
PW-56. He said A1 and PW-56 have come together to the
museum. But this was proved to be an omission by PW-108,
who deposed that PW-91 did not in his S.161 statement speak
about A1 and Nisha [PW-56] having come to 'Thekku Museum'
together.
17. PW-96 is the Chungathara Mandalam Committee
Secretary of the political party of which A1 was the Office
Secretary. PW-96 speaks of A1 having had a relationship
with his wife's sister and having seen them together twice
going in a scooter. He also spoke of having traveled with
the said lady and A1 in a car. PW-97 is the landlord of the
house A1 had rented out earlier, who deposed that A1 was
evicted since there were complaints that the house was
frequented by women. PW-92 is also a political activist
belonging to the same party as A1 who claims to have seen
the sister-in-law of A1 in the Office at Nilambur. PW-70 is
another witness who sought the help of A1 for his political
connections and maintained close relationship with him. She
states that one day inside the Party Office, A1 caught hold
of her hands and after that she broke away from A1. This
connected cases
incident was first spoken of before Court as PW-108, the
ACP, denied such a statement having been given by the
witness. According to PW-108, PW-70 only spoke of an
indecent behaviour on the part of A1. PW-70 also spoke of
an instance where A1 visited her house with his
sister-in-law, on the pretext that it was his wife. Even
then, she speaks of having complained to Sheeba, the
sister-in-law of A1, about the minor transgression of A1
having caught hold of her arm in the Office. Further in
cross examination she admitted to have known the wife of
A1, six months after she came into contact with A1 and also
admitted to have visited A1's residence.
18. The flirtatious nature of A1 is sought to be
established since the deceased threatened to reveal A1's
misdeeds to the higher functionaries in the party. The
prosecution even produced PW-93, the sister-in-law of A2
who is said to have admitted to her illicit relationship
with her brother-in-law, A1. PW-93 turned hostile and
denied having given any statement to the Police. Even if we
accept the version of the witnesses, the amorous
antecedents of A1 were known to many and even other party
functionaries. The threat of an expose by the deceased
without anything more specific is very difficult to swallow
connected cases
as a motive to murder. Though a feeble attempt was made to
allege such transgressions inside the Office, there was no
proof offered. The same is also highly improbable since it
was the office of the ruling party where normally the
functionaries and even the lower minions frequent.
19. In this context, it has to be noticed that
both PW-1 and PW-4, the brother and sister-in-law of the
deceased spoke of the enmity between the deceased and A1.
Though PW-1 deposed in Court that he heard the deceased
scolding A1 over the telephone, he had not stated so in the
S.161 statement, which omission was brought out by the
defence in the cross-examination of PW105, the Dy.SP who
was in the Investigation Team. PW-4 specifically spoke of
having heard her sister-in-law, the deceased threaten A1 to
reveal his activities in the office, to one Sivasankaran,
who is a higher functionary of the party. In the same
breath she also deposed that the said Sivasankaran died in
January; while the death of the sister-in-law of PW-4
occurred on 05.02.2014. PW-4 in her cross-examination
categorically stated that the enmity between A1 and the
deceased or rather, anybody having animosity to the
deceased was not stated to the Police on 05.02.2014 or
10.02.2014 when the Police questioned her. Obviously the
connected cases
statement was made after the arrest made by the Police.
Both PWs.1&4 first called A1 to enquire about the deceased
when she went missing. A1 accompanied PW-1 at 7.00 p.m on
05.02.2014 to the Sub Inspector PW-102, who registered the
FIR on the next day. A1 was present when the body was
recovered and for the funeral. The character or the lack of
it, of A1 is projected only to prove his motive. There is
no other inference possible from such antecedents even if
found proved by the prosecution. The loose morals even if
established, it does not establish the motive; which is the
threat of exposure. When many in the location, including
other party functionaries of A1 are aware of his amorous
antecedents; a threat of exposure cannot be a valid motive,
for committing a murder.
20. In pursuance of the motive, the prosecution
also attempted to project earlier instances of attempt to
murder the deceased. PW-58 the Advocate in whose office
also the deceased was employed, spoke of she having
complained about somebody having attempted to run her down
with a car, which was about an year back. To further
fortify this allegation PW-52 was examined. PW-52 claims to
have run a tea shop in Nilambur for four years prior to his
shifting to Bangalore six months back. He claims to have
connected cases
been entrusted by A1 to run down the deceased. A1 is said
to have supplied a car and paid him Rs.1000/-, in the
presence of another, one Fasil, CW-116, who was not
examined before Court. He also says that after the
entrustment when Fasil queried him, he confessed to have no
intention to endanger anybody. He is also said to have
taken the car for a trip to Ukkadam after which he
entrusted the vehicle back to A1. The witness speaks of no
adverse reaction from A1 on his having not carried out the
task he was entrusted with. PW-52 is also not specific
about the time when such entrustment was made and there was
no attempt by the prosecution to elicit the period in which
such an entrustment was made. We find no way to believe the
version of PW-52; of his having taken money for an illegal
act and having not committed it, which definitely the
person who entrusted him would have known about. Further
PW-108 the ACP, speaks of A1 having spoken of one Jamsheer,
a 'Bengali' having been entrusted with the task of
endangering the life of the deceased in a car accident.
PW-108 also speaks of having conveyed this aspect to PW-1
when he was called for questioning, thus sowing the seeds
of suspicion in the minds of the relatives of the deceased.
It was also claimed by PW-108 that he had questioned the
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said Shamsheer but he was not cited before Court.
21. To fortify the allegation of attempts to
murder, the prosecution also examined PWs.49, 50 and 51.
PW-49 claimed that A1 asked him for cyanide which he
procured from PW-50. In fact, PW-49 is a Goldsmith while
PW-50 admittedly is a person engaged in manufacturing
copper ornaments, who cannot have any free access to
cyanide. In re-examination it has been brought out that
PW-50 had Gold work earlier, but still at the relevant time
he was only engaged in copper. PW-50's evidence is that he
gave a 'block' used to polish gold styling it as cyanide.
Anybody would know that cyanide is not available in blocks.
PW-51 another person engaged in making copper ornaments
also spoke of A1 having asked for cyanide purportedly to
kill stray dogs. Both PW-50 and PW-51 speak of having given
A1 something else in the guise of it being cyanide. Even
the witnesses claim that A1 purportedly told them that he
wanted to use it on stray dogs. That the cyanide was
sought to be procured to kill the deceased remains in the
realm of a mere surmise. We are not satisfied that the
motive has been established by the prosecution. However, we
observe that motive though, could be a relevant factor, is
not necessary or imperative even in a case based on
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circumstantial evidence, if the other circumstances
unerringly prove the accused having committed the crime.
THE SCENE OF OCCURRENCE AND THE LAST SEEN THEORY
22. The scene of occurrence is a commercial area
and is a beehive of activity as is evident from the
deposition of the witnesses, most of whose presence in the
area is not by chance. We do not have a clear picture about
the location of the office of the political party in which
the crime is alleged to have been committed. The Sketch
Plan prepared, Ext.P50 shows only the Party Office. PW-2 is
the owner of 'Orbit Computers' which is carried on in the
Treasury Building which has four floors. In the said
building is located the Advocate's office of PW-58, 'Excel
Tailors' of PW-12, 'X-Man Gents Cotton' of PW-13, the
Construction Company of the Municipal Chairman-PW-83 and
many other commercial establishments. From the totality of
the depositions we get the picture that there are two other
buildings nearby, one of which houses the Party Office.
This is a two storey building, as seen from Ext.P7 Scene
Mahazar, on the ground floor of which is 'Eye Style
Opticals' belonging to PW-19. The Party Office is on the
first floor. Adjacent to that building is a building in
which one 'Swantham Saree Kendra' is located and opposite
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to it is the 'Cherupushpam Paper Mart' in which PW-5 is an
employee. The fateful day is a Saturday and from the
evidence of PWs.5, 2 and 13 the shops in the locality open
between 8.30 and 9.30. According to PW-3, an Advocate Clerk
having his office nearby, all the shops open by 9.30. Hence
our observation, that it is a busy area which by 10'O clock
becomes a beehive of activity on a working day.
23. The deceased was seen by PW-4, last at 7.00
a.m and by PW-1, at 7.30 a.m from their Tharavad house.
According to PW-4 the deceased usually starts for work
between 8.30 a.m and 8.45 a.m and returns by around 11.30
a.m. PW-2 opened his establishment 'Orbit Computers' at
around 8.45 a.m. and at around 9 a.m he saw the deceased
sweeping the front-side of the Advocate's office. PW-2 had
installed a CC TV camera on the outside of his shop which
had caught the deceased in its sight as seen from the
visuals displayed in Court from a DVD. The trial Judge
accepted the objection of the accused regarding the
admissibility of the video footage copied, rightly so,
since the hard disc was not produced and there could be
allegation raised of tampering. Arjun Panditrao Khotkar v.
Kailash Kushanrao Gorantyal [(2020) 7 SCC 1] held that the
original device on which the information is stored, if
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produced in Court there was no necessity for a Certificate
under S.65B of the Evidence Act and if it is a copy the
Certificate is required. We too do not intend to place any
reliance on the visuals displayed from pen-drive to which
it was copied, since the Certificate under S.65B is absent.
But PW-2 had spoken of having seen the deceased at 9.00 a.m
sweeping the Advocate's office.
24. PW-3 is an Advocate Clerk having his office in
an adjacent building. He was standing in front of
'Cherupushpam Paper Mart' when he saw the deceased in front
of 'Eye Style Opticals' with her hands on the handrail of
the stairs leading to the scene of occurrence. He also
spoke of having seen A1 and A2 standing in front of the
office of A1 at that time. In cross-examination PW-3 admits
that in his statement to the Police he had told them that
he saw the deceased at 8.30 a.m. PW-12, while opening
'Excel Tailors' at 9'O clock speaks of the deceased having
come to his office to take the keys of the construction
company belonging to PW-83. PW-13 Proprietor of 'X-Man
Gents Cotton' deposed that the keys of the Advocate's
office is kept in his shop and the deceased picked it up at
9.15 a.m. PW-5 is an employee of 'Cherupushpam Paper Mart'
who spoke of having seen the deceased going into the
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Congress Office at 9.45 a.m. This was the last time anybody
among the witnesses spoke of having seen the deceased
alive. There is a contention raised by the prosecution that
PW-5's deposition is not clear as to the time the deceased
was last seen since there is an overwriting. There is an
overwriting in so far as the 1 in 9¼ having been
overwritten with 3. But the learned judge has cautiously
written 9¾ above and underlined the overwritten portion.
There is no anomaly and clearly it is 9¾. We do not think
any last seen together theory arise because PW-3 saw the
deceased standing in front of 'Eye Style Opticals' with her
hand on the handrails of the stairs leading to the alleged
scene of occurrence and A1 and A2 were standing on the
first floor. A2, admittedly was a stranger to the witness.
In Chandu alias Chandrahas v. State of M.P. [1993 Supp (1)
SCC 358] the witnesses saw the accused grazing cattle near
a river and the deceased was about to cross the river. It
was held that merely because the accused and the deceased
were seen in the vicinity of a river, that alone is not
sufficient to hold that they were last seen together. PW-3
has nothing to say about the further movements of the
accused and the deceased.
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25. The evidence of PW-3 is also seriously
assailed by the accused for reason of there being no
possibility of him identifying A2, a total stranger. It was
also further urged that all the above witnesses who were of
the same locality, some of whom identified A2, were
questioned by the Police after considerable delay, which
makes the identification of A2 artificial. PW-3's 161
statement was taken on 19.02.2014, 14 days after the
incident and 9 days after the arrest of A1 & 2; by which
time their photos were published and flashed in the media.
It has to be said there is no clear theory propounded by
PW-3 that the deceased was seen last, along with A1 and A2
and his identification of A2 a total stranger cannot form a
circumstance for reason of the delay in recording his
statement, by which time the accused were well known to the
general public. In Ganesh Bhavan Patel v. State of
Maharashtra [AIR 1979 SC 135] the eye witnesses to the
crime proper was examined with a delay of one day. Though
the delay of a few hours may not by itself constitute a
serious infirmity, that there are concomitant circumstances
which suggest that the investigator was deliberately
marking time to shape a credible case, then it could be a
significant factor in favour of the accused. PW-3 is not a
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chance witness and the Police would have on recovery of the
body first enquired at her place of work since the lady was
found missing; when she did not return from work. In
addition to the media publicity the accused were brought to
the scene on 11.02.2014, the day after their arrest. The
statement was taken still an eight days later. The same
infirmity arises in the case of the other witnesses who
identified A2, which we will deal with a little later. The
aspect of delay highlights the attempt of the prosecution
to shape a case with tutored witnesses; which we pointed
out when we discussed the medical evidence.
PREPARATION FOR THE CRIME
26. The prosecution has proffered witnesses to
show the preparation for the crime made by the accused 1
and 2. It is their specific case that on the previous day,
A1 along with PW-91 had arrived from Trivandrum and in the
evening according to PW-91 by around 8.00 p.m A1 called him
on the telephone and picked him on his scooter to clean the
Party Office. He gathered the waste and put it in a box as
also arranged the festoons, pipes and sticks etc. The
prosecution would tell us that this is in preparation of
the crime to set up a story of removal of waste for which
A2's vehicle had to come to the premises. PW-91 does not
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speak about having seen A2 at the time he reached the Party
Office. However, PW-95 Melekulam Balakrishnan who was in
overall charge of the Party Office, being the Block
Secretary of the then ruling party, spoke about seeing A2
in the Party Office on the previous day evening.
27. Further evidence led by the prosecution is the
procurement of a jute sack, a torch, plaster roll and
scissors by the accused. The jute sack is procured by A1
according to PW-35 who runs VPC Vegetable Stall at
Nilambur. On 05.02.2014 A1 took the sack from PW-35's
shop.PW-35 identified the sack by the mark 'KC'
indicating the sack having been received by PW-35 on
wholesale purchase of onions from KC Vegetables,
Manjery. PW-36 is the proprietor of KC Vegetables who
affirm that the sacks in which he supplies vegetables
contain the distinctive mark 'KC' and supplies are made
from his shop to numerous shops in Nilambur. He also
deposed that the sack in which he makes the supplies
contains the source from which he purchased the items
which in the particular sack is 'CMB', indicating
Ottamchathram. MO16 sack in which the body was recovered
was shown to PW-35 who identified it as 'the sack given
to A1 Biju'. We find the said evidence to be weak
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insofar as it is admitted by PWs.35 and 36 that such
sacks are available aplenty in Nilambur. It is also the
specific deposition of PW-35 that he did not take any
money for the sack from A1. This leads to an inference
that the sacks in which supplies are received by PW-35
from PW-36 are sold for a price to the general public.
Apart from the mark 'KC' and 'CMB' available in the sack
as deposed by PW35 and PW36; which marks are available
in many supplies made by PW36, there is no distinctive
mark to identify the particular sack given to A1. The
marks available in the sack identified by PW35 and PW36 are
available in other sacks supplied by PW36 to retailers in
Nilambur which are sourced from Ottamchathram. Further
PW-35 stated before Court that he was shown the sack by the
police on 14.02.2014 when his S.161 statement was taken.
The learned Special PP would point out that it could be a
mistake. But there is clear affirmation in the statements
made by PW-35, while being cross-examined, that the sack
was shown to him when his statement was taken by the
Police, which was on 14.02.2014. Even if it be a mistake,
when the prosecution chose not to clarify, then the benefit
of the mistake inures to the accused. This statement
assumes relevance on examination of the property list,
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Ext.P132 dated 12.02.2014, proved by PW-103. The sack was
received at the Magistrate's Court on 13.02.2014. MO16 sack
is item No.3 in Ext.P132. There was no possibility of PW-35
being confronted with the sack MO16 on 14.02.2014. The
prosecution, as we noticed, did not carry out any
re-examination to clarify the date.
28. A torch was recovered at the instance of A1
from his residence based on his confession; allegedly used
when the body was drowned in the pond at night. PW-31 a
shop owner deposed that MO13 torch recovered from A1 was
purchased by A2 along with another torch at around 9.00 O'
clock in the night of 05.02.2014. The Police again showed
the torch to him after recovery when recording PW-31's
statement. PW-31 deposed that A2's photos were flashed in
the news and that such torches are available freely in the
market. PW-31 in his deposition spoke of the exact
description of the torch which was specifically marked as
an omission in his S.161 statement, which omission stood
proved while cross-examining PW-105 the Dy.SP.
29. A1 is said to have purchased a plaster roll
from PW-32 who runs a medical store at Nilambur. The
plaster roll marked as MO14 was purchased on 04.02.2014 and
the same is a fast moving item according to PW-32 himself.
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The plaster roll was shown to the witness after the same
was recovered by PW-102 a Sub Inspector. More interesting
is the purchase of a scissors (MO11) and its recovery. A1,
according to PW-33 who has a shop on the Pookkottupadam-
Chulliyodu road purchased the scissors at around 9.00-9.30
p.m. The scissors was shown to the witness on 24.03.2014.
The defence has specifically brought out that in the
statement of PW-33 under S.161 he had spoken of the
purchase of the scissors having been made by A2 and not A1.
The ACP, PW-108 who led the Investigation team labours in
cross-examination to justify it as a mistake committed by
him. He also clarifies that after the recovery on
24.03.2014 it was again shown to PW-33 who confirmed the
purchase having been made by A1; a clear attempt of
tutoring. The justification proffered by PW-108 is that
PW-33 even while giving statement before the Police was
distracted by the customers in his shop. We cannot believe
the statement of PW-108 that PW-33 was catering to his
customers while he was being questioned at the first
instance, by as high a functionary of the Police, as the
ACP. The justification of PW-108 comes out a little feeble
and we reject the same in toto. The recovery again is a
mockery which we would point out at the appropriate time.
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30. We do not think the decision in Perumal C. v.
Rajasekaran [(2011) 15 SCC 510], relied on by the accused
have any application. There the articles recovered were
found to have no connection with the murder and were items
of common use. Here though the items were of common use the
plaster from the roll is alleged to have been used as a
ligature, the torch, for lighting the pathway to the
deserted pond, the scissors, to cut the dress of the corpse
and the sack, is alleged to be one in which the corpse was
transported and drowned. The sack in which the body was
found definitely cannot be identified as the one given to
A1 since it did not have any distinctive mark for
recognition other than 'KC' and 'CMB', which we found to be
available in many supplies made by PW-36. The other items
would be dealt with along with the S.27 recoveries.
THE CRIME PROPER:
31. From the deposition of the witnesses cited
earlier, the deceased had first taken the keys of the
Advocate's office and the construction company from the
shops of PWs.13 and 12, swept the Advocate's office by
around 9.15 a.m, then presumably the construction company
and went to the Party Office at 9.45 a.m, when she was last
seen alive by PW-5. PW-5 again was questioned after 34 days
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of the incident alleged and he was not a chance witness,
being an employee of a nearby shop. Be that as it may, the
prosecution case is that the crime was committed in the
Computer room of A1's office and the body taken out in a
sack, which was witnessed by PWs.6, 19 and 60. PW-6 was
examined with a delay of 79 days and PW-60 after 9 days.
PW-6 is a Daily Wage Municipal Contingent Worker who admits
that his working hours are between 6.00 a.m and 12.00 noon.
But on the said day he went to the Party Office to read the
newspapers; which he claims to be a daily habit. In fact,
PW-60 who is the employee of PW-19 (Eye Style Opticals)
also speaks of reading newspapers in the Party Office. On
the fateful day, according to him, by around 9.30-9.45 a.m
he was climbing the stairs to the scene of occurrence for
reading the newspapers, when PW-19 his employer arrived. He
immediately came down the stairs and was with his employer
after that. In this context we have to notice that the
Party Office was of the then ruling party, which as is
evident from the depositions, is an open house, where even
casually people frequent to read the newspapers.
32. PW-5 speaks of Melekulam Balakrishnan [PW-95]
[Block Secretary] who frequents the Congress office and who
on many days opens the office and shuts it down in the
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night. PW-95 though examined was not queried about his
absence on that day. PW-14 an auto goods driver, a chance
witness, whose presence at the scene is seriously
challenged, was questioned after a delay of 75 days. PW-14,
also had spoken of Melekulam Balakrishnan [PW-95], who is
the General Secretary of the Block Committee of the ruling
party and the Party Office being frequented by the 'Mahila
Wing', and other feeder organizations of the political
party, who use the Party Office for their activities. PW-14
also claimed that he was the Office bearer of the
Autorickshaw Employees Union affiliated to the ruling
party. PW-6 spoke of others coming to the office to read
newspapers. It is in such a place, the prosecution alleges
the crime to have been carried out. PW-95, as we noticed,
is conspicuously absent from the Office though he is said
to be a regular functionary. In the party hierarchy he is
obviously above A1 since he speaks of having given A1
Rs.5,000/- to be handed over to the relatives of the
deceased on coming to know of her death. PW-1 accepts that
he received money, though only Rs.4,000/-, from A1 towards
funeral expenses.
33. We reiterate, at the risk of repetition, that
at 9.45 a.m PW-5 last saw the deceased alive. PW-6 the
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person who was reading the newspaper at the Party Office
deposed that at 10'O clock A1 and A2 were seen taking a
sack out of the office. In cross-examination he says that
at 10.30 he saw A2 carrying a thread sack (Jute) and A1 a
plastic sack, which is a contradiction. Definitely the body
in a sack cannot be carried out by one person and if we
believe his earlier version in chief examination, the crime
occurred between 9.45 a.m and 10.00 a.m, which considering
the manner in which the murder was committed and the
alleged task of huddling the body into a sack; a 150cm tall
woman into a sack having length of 110cm, itself is
improbable.
34. Further PW-19 the proprietor of 'Eye Style
Opticals' speaks of A1 having come to his shop asking
whether there was any waste to be taken away, since one of
his friends had come with a vehicle. PW-19 replied that
there is not much waste but still promised to see if there
was any. At this point the employee of PW-19, PW-60 told A1
that there is nothing to put the waste in, upon which A1
asked him to go to the Party Office where there were sacks
available. PW-60 deposes that he went to the Congress
Office picked up a sack lying in the hall, saw PW-6 reading
a newspaper and later saw A2 bringing a sack and putting it
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inside the goods carrier van. PW-105, deposed that PW-60,
in his statement to the Police neither spoke of having seen
A1 and A2 putting a sack in the vehicle nor did he state
that he saw PW-6 in the Party Office. PW-19 speaks of
having seen A1 and A2 carrying a sack, after A1 came to his
shop asking for waste. The picture we get from the evidence
of the witnesses is that when the body was inside the Party
Office, A1 went around asking for waste to be taken out and
even asked PW-60 to go to A1's office and pick up a sack;
which is unbelievable. All this time, PW-6 was sitting in
the Party Office, which even according to the witnesses,
is frequented by many belonging to the party and those
casually coming there to read the newspapers. We have our
own doubts about the crime having been committed in the
alleged scene that too in a space of 15 minutes and the
body brought out in a sack. Here we again emphasize that
the deceased was a fully grown woman, of 150cm height and
weight of 50Kg, as seen from the postmortem report. The
sack in which the body was found floating had a length of
110 cm and width of 70cm as evidenced from Ext.P-111,
Inquest Report prepared by PW-102 Sub Inspector. The modus
operandi of the murder was smothering on the mouth with
plaster and strangulation of the neck with the very same
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plaster used as ligature. There was also brutal stamping of
the chest causing the ribs; 8 on the right and 6 on the
left, to be fractured. Then there was bizarre penetration
of the vagina, allegedly with a mop, causing very serious
injuries which could even result in death by neurogenic
shock. After having accomplished these tasks the body had
to be huddled into the sack, all within 15 minutes. Further
all this was done with the doors to the Office left open
since PW-6 walked freely in to read the news paper at
10a.m. More suspicious is the fact that PW-6 speaks of
having seen PW-1 and PW-2 carry out the sack which later
stood contradicted by himself. For a moment if we ignore
the contradiction, the sack carried by A1&A2 presumably
held the body weighing 50 kgs, which is no mean task for
even two able-bodied men, especially given the fact that
the dead-weight of a corpse huddled into a sack will not be
evenly distributed.
35. PW-14, apart from the delay in S.161
statement, is a chance witness brought in to further
fortify the presence of A2 and his vehicle in the locality.
The delay assumes significance since, as in the case of
PW-3, A2 is a stranger to PW-14 also, which negates the
identification made. PW-14 is an auto goods driver who
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reached there to collect certain goods from one 'Zenith
Sanitisation'. He deposed in chief-examination that one
'Kulakandathil Achayan' called him around 10-10.30 to
collect some pipe fittings from the aforementioned shop. He
does not offer any further information about the man who
called him and feigns ignorance even about that persons
actual name. In cross-examination, he changed his version
and stated that it was an electrician who called him on the
mobile phone to collect the pipe fittings. His version in
the 161 statement was that he reached the auto stand around
8.30 when Kulakandathil Achayan called him to collect PVC
pipes from 'Zenith Sanitisation'. On a specific question
put to him he had admitted the said statement and PW-108
also proved these contradictions. The presence of the said
witness in the locality is highly suspicious. But as we
noticed PW-14 spoke of Melekulam Balakrishnan who is the
Block General Secretary of the political party to which is
affiliated the Auto-Rickshaw Employees Union whose office
bearer PW-14 is. His specific contention is that it is
Melekulam Balakrishnan who looks after the affairs of the
Party Office. PW-14's presence in the scene of occurrence
is suspect and so is his identification of A2, but it was
the prosecution who brought out his membership in the Party
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and the person who looks after the affairs of the Office,
PW-95. The maxim 'falsus in uno, falsus omnibus' does not
apply to India and the fact that PW-14's deposition is
discredited on one aspect need not affect his evidence on
other aspects. PW-95's position in the party is spoken of
by the other witnesses also.
36. PWs.3, 6, 14, 19 and 60 are the witnesses who
identified A2 at the crime scene. Apart from the delay in
taking their 161 statements, they were admittedly not
acquainted with A2. The necessity for holding an
identification parade arise when the accused are not
previously known to the witnesses as has been held in
(2007) 2 SCC 310 [Amitsingh Bhikamsing Thakur v. State of
Maharashtra]. The identification parade held, for the
witnesses to identify the culprits from the midst of other
persons is a test of their veracity. It was also held that
it is desirable that a test identification parade should be
held immediately after the arrest of the accused since that
eliminates the possibility of the accused being shown to
the witnesses. In the present case no identification parade
was held, obviously because the accused were brought to the
scene of occurrence on the next day of their arrest and
their photographs were publicized in the print and
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electronic media. The identification of the accused in
Court though constitutes substantive evidence, in the
present case there cannot be much reliance placed on it
since even before the 161 statements itself the witnesses
were well aware of who the second accused was; the 1 st
accused being a familiar person to all of them. It has also
been held in the cited decision that "the evidence of mere
identification of the accused person at the trial for the
first time is from its very nature inherently of a weak
character" (sic- para 13). It is also declared that there
is no obligation on the investigating agency to carry out a
test identification parade; nor can the accused claim such
a right. However, it corroborates the sworn testimony of
witnesses in Court and, hence, it is a rule of prudence.
Here, the weak evidence of identification in Court for the
first time is rendered weaker for reason of the photographs
of A2 having been publicized in the media.
SUBSEQUENT CONDUCT OF A1 & A2
37. After the body was placed inside the vehicle
of A2, from the Party Office, the prosecution traces the
path which A1 and A2 took, through the following witnesses.
PW-23 is the Branch Manager of one Malabar Gold which
establishment is located on the side of CNG Road. He
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produced the pen-drive which contains the visuals, as
copied from a DVD, to which the copy was made from the hard
disc available in his establishment. The visuals displayed
in Court suffered from the very same legal infirmity under
S.65B of the Evidence Act as was noticed in the case of the
visuals produced by PW-2, the proprietor of 'Orbit
Computers'. We cannot but observe that the visuals only
indicated an Ace goods vehicle and a Honda Activa Scooter
proceeding from Nilambur to Chandakunnu without any
identification of the vehicles as that belonging to A1 and
A2, by reference to their registration numbers or
otherwise. PW-24 deposed that he saw A1 on his Honda Activa
Scooter at around 11.00 a.m and after talking to him he
went towards the level-cross in the direction of
Pookkottupadam-Chulliyodu. Both these witnesses do not in
any manner establish the movement of the vehicle, which
according to the prosecution contained the body.
38. The further case of the prosecution is that
the vehicle which contained the body was parked in the
residential compound of PW-53, Eleykutty. Eleykutty stays
at Chulliyodu and knows A2, who belongs to the said place.
Her deposition is that by around 11-11.30, A2 came with his
TATA Ace goods vehicle and parked it in front of her
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residence. A2 then told her that he is going to Nilambur
and would take the vehicle in the evening. A2 also went
outside and got on a scooter and proceeded towards
Unnikkulam. A2 came back at around 6.30 p.m to take the
vehicle. It is highly unlikely that the perpetrators of a
murder would have left the body in a vehicle and left it
parked on the roadside, as seen from Ext.P6 Observation
Mahazar. Ext.P6 is prepared on the parking spot as pointed
out by one Sajiv Rahman S/o.Saithali, who is said to have
seen the vehicle parked there, who was not cited as a
witness. In any event Ext.P6 identifies the exact spot of
parking as that inclusive of the road margin. We also see
from PW-53's evidence that she speaks of the sides and back
of the vehicle being covered with a black hood. In this
context we looked at the photographs of the vehicle which
were shown to us to point out that the carriage portion was
fully covered. Though the carriage portion is covered any
person could have had access to the carriage portion for
reason of there being no possibility of it being secured.
This renders the prosecution story of the vehicle with the
corpse in the carriage portion, having been parked on the
road side from 11.30 a.m. To 6.30 p.m., highly improbable.
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39. There are also witnesses produced to speak
about the conduct of A1 and A2 in the evening of the
fateful day. PW-8 who runs a mobile eatery speaks of A2
having purchased two parcels in the night of 05.02.2014 at
around 8 to 8.30. PW-105, Dy.SP however stated that in the
statement to the Police, PW-8 only said that A2 purchased a
food parcel; further evidencing tutoring of witnesses. PW-9
a resident of Unnikkulam who is acquainted with both A1 and
A2 speaks of having seen A1 and A2 going from Chulliyod to
Unnikkulam on the same day between 8.00 and 9.00 p.m. This
statement also was not made to the Police as stated by
PW-105, Dy.SP. PW-9 claimed that he was sitting in the
goods auto of CW-41 when A1 and A2 proceeded towards the
pond in a scooter. He also asserts that he saw them by the
light of the vehicle in which he was sitting and the
scooter driven by A1. It is pertinent that in
cross-examination he resiles from the definite stand taken
earlier and deposes that he had a doubt that it was A1. It
is also to be noticed that he along with CW-41 were sitting
and talking in the latter's vehicle for about 10 to 15
minutes, as deposed; when the possibility of keeping the
headlights on, is very remote. PW-9 also admitted in
cross-examination that he had not stated before the Police
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(under S.161) that he had seen A1 and A2 between 8.00 and
9.00 p.m on that day. We cannot place any reliance on the
evidence of PW-9 and PW-8, which runs contrary to their
statement before Police.
40. PW-18 is a toddy tapper who also runs a
chicken stall at Chulliyod. His evidence is that he had
proceeded to his sister's house by around 9.30-10.00 in the
night and reached there around 10.30-10.45. He deposed that
when he was coming back, around 11.30 he saw A1 standing on
the road going to Unnikkulam immediately after the
Chulliyod Market and A2 a little further. His evidence is
suspicious insofar as he states in cross-examination that
to reach his sister's house it takes about an hour and in
chief-examination his specific case was that he left his
sister's house at around 11-11.15. He could not have
reached Chulliyod market at 11.30 when he claims to have
seen A1 and A2. In any event A1 has a definite case that he
was at Unnikkulam on the said night for a house warming
function and A2 has his residence at Unnikkulam. Their
presence as spoken of by PW-18, if at all true, stands
explained.
41. PW-63 is the next witness who spoke of seeing
A1 and A2 on the night of 05.02.2014. Though PW-63 is a
connected cases
prosecution witness his account supports the explanation of
A1 and to an extent aids A2 also. PW-63 stays at Unnikkulam
and has a business in Tea Powder. A2 was his former Sales
agent and he still maintains a connection with A2 who has
started an independent business in Tea Powder, which he
purchases from PW-63. It is stated that between 5 and 6 in
the evening A2 called him on the mobile and as he stopped,
A2 got on his two wheeler. A2 is said to have got down at
Chulliyodu where he said his vehicle was parked. The
witness further stated that in the night around 8.45-9.00
he saw A2 sitting in the veranda of a shop playing caroms
with some others. He further deposed that even at 10.00 O'
clock when he passed that way A2 was still playing caroms
at the same place; when he saw the vehicle of A2 parked
opposite to where he was playing.
42. In cross-examination PW-63 states that on the
5th there was a party organized at his residence in
connection with the housewarming ceremony. Only friends
participated in the function which was attended by A1. It
is also stated that the function concluded only around 1'O
clock at night. The said evidence is corroborated by that
of PW-56. PW-56 as we noticed had regular contact over the
telephone with A1 on a daily basis, frequently. She claimed
connected cases
that she could not get A1 on the telephone in the night of
05.02.2014. However, at around 1.00 'O Clock in the night,
A1 called her back and told her of the housewarming
ceremony he had been attending. He also spoke of the song
he rendered on the occasion. It is the specific statement
of PW-56, again a prosecution witness, that A1 rendered the
song over the mobile phone, for her benefit. A conduct
unlikely of a person who had just drowned the body of the
woman he murdered in the morning, in a nearby pond.
43. PW-63 provides a valid explanation for the
presence of A1 at Unnikkulam; justifying the tower location
provided of his mobiles, which alone prompted PW-103 to
arrest A1 and A2. A2 as we noticed, is a resident of
Unnikkulam and A1 was present in the locality for a
function as deposed by the prosecution witness itself. The
cross-examination was left unchallenged by the prosecution.
Here we also have to notice that it is PW-91's evidence
that he saw A1 at 7.00 O' clock, on 05.02.2014, at the
Party Office and he accompanied him to A1s house. The
prosecution witness PW-63 assert the presence of A1 in the
function organised by him which commenced at 10'O clock and
ended at 1'O clock. It cannot be believed that after having
disposed of the body in a pond with two boulders tied to
connected cases
it, thrown away the personal effects of the deceased and
burned her clothes; A1 attended a function, rendered a song
there and sung it over again on the mobile phone, to a girl
friend, at 1.00 O' clock.
THE RECOVERIES:
44. There are a spate of recoveries made by the
prosecution, each of which are challenged by the accused.
We shall deal with one by one. PW-103, the Circle
Inspector, made these recoveries after the arrest of A1 &
A2. The recoveries are of the personal effects of the
deceased and those objects used to commit the crime. In the
case of the latter we would also discuss the evidence led
to establish the procurement of some of those objects. The
confessions are said to have been made on 10.02.2014 but
the recoveries were made on different dates; the delay with
respect to some of these, makes those recoveries very
suspicious.
45(i). Ornaments of the deceased: The ornaments
worn by the deceased, according to the prosecution, was
recovered by Ext.P8 Mahazar on the basis of Ext.P8(a)
confession made by A2. The confession dated 10.02.2014 is
to the effect of A2 having hidden the ornaments in a
plastic cover in his bedroom, out of the eyesight of his
connected cases
wife. As per Ext.P8 Mahazar, witnessed by PW-20, one bangle
weighing 7.92gms, a pair of ear studs weighing 2.68gms, a
necklace [not of gold] and the plastic cover in which the
ornaments were secreted, were recovered from the concrete
rack in the bedroom of A2's house. Ext.P8 indicates that a
goldsmith, PW-30, was present when the recovery was made to
ascertain the purity of the ornaments. PW-20, the witness
to the seizure accepted his signature on Ext.P8 Mahazar,
dated 11.02.2014, the day after the body was recovered from
the pond. He identified the ornaments recovered as per
Ext.P8, as also A2.
45(ii). PW-30, the goldsmith, also a resident of
the locality examined the ornaments at the time of recovery
according to the prosecution. He identified the ornaments
MO1 to MO3. In cross-examination he stated that he was
summoned from his shop for the purpose of examining the
ornaments, which he did in the veranda of A2's house. In
cross-examination he also stated that such examination was
done 4 or 5 days after the body was recovered; which was on
10.02.2014. This is quite contrary to Ext.P8 recovery
mahazar which is dated 11.02.2014, in which the presence of
PW-30 and the examination conducted of the ornaments is
specifically recited; raising a reasonable doubt about the
connected cases
said recovery alleged to be made on the confession
statement of A2.
45(iii). We also notice that the I.O, PW-103 [C.I]
had specifically spoken of the ornaments having been shown
to PW-1, PW-4, the brother and sister-in-law and CW-2,
another sister of the deceased when their S.161 statements
were recorded; without any independent identification being
called for from among other similar ornaments. In (2002) 7
SCC 317 [Ashish Batham v. State of M.P] recovery from the
accused, of a chain belonging to the deceased was held to
be shrouded in mystery for many a reason. One of the
reasons was that the identification of the chain, which
distinctively had an iron wire in the place of a hook, was
not done after mixing it up with similar chains. AIR 2010
SC 85 Pannayar v. State of T.N held that identification of
ornaments of the deceased recovered on the confession
statement of the accused, if carried out for the first time
in Court would be a weak type of evidence. In the present
case the recovered items are said to have been shown to the
relatives, PWs.1, 4 and a sister before the same were
produced in Court. No Test Identification was carried out.
PW-1 and PW-4 were then shown the ornaments in Court as
those of the witnesses which they readily accepted without
connected cases
any distinctive aspect of the same being elicited from them
before confronting them with the objects. This renders the
evidence liable to be discarded by Court.
46. Umbrella [MO6], Ladies Slippers [MO4],
Spectacles [MO5]: The umbrella, MO6, allegedly owned by the
deceased is recovered as per Ext.P27 as per the confession
statement of A2 [Ext.P119]; that he threw it into the
shrubs available on the roadside near 'Thondivalavu'.
Ext.P27 recovery was witnessed by PW-42. As per the
description of the umbrella available in Ext.P27 it is a
triple folding one, coffee coloured with white and yellow
dots, having the words 'JOHN's' written on the handle. The
ladies slippers allegedly belonging to the deceased marked
as MO4 was recovered on the confession statement of A2 as
per Mahazar Ext.P9 on 11.02.2014. The confession statement
Ext.P120 was to the effect that the ladies slippers were
thrown into the rubber estate enclosed inside a fence lying
to the left of the Pattaraka road. Ext.P9 Recovery Mahazar
is witnessed by PW-21. The slippers were described as
having black colour with a sticker 'Paragon' on its strap,
of size 4 inches and with the words 'Solea' inscribed
within. The spectacles used by the deceased was recovered
as per Ext.P10 as per the confession statement of A1,
connected cases
Ext.P122. The spectacles [MO5] are described as having
metal frame with white and black coloured legs. The
confession is to the effect that the spectacles were thrown
away in the rubber estate belonging to one Prabhakaran
lying on the side of Ulladu-Cherai road. It is pertinent
that though the umbrella, the slippers and the spectacles
have distinctive descriptions, even the obvious among these
were not attempted to be elicited from either PW-1 or PW-4
before the MO's were shown to them, in Court, for
identification as belonging to the deceased. The
identification also suffers from the same defect pointed
out in the case of the ornaments since PW-103 speaks of the
said articles having been shown to the relatives including
PWs.1 & 4 immediately after the recovery, before producing
it in Court.
47. SIM Card of the decased: A2 also confessed, to
have thrown away the SIM card of the deceased, as per
Ext.P14(a) dated 10.02.2014 which was recovered as per
Ext.P14 Mahazar dated 15.02.2014. The recovery of SIM Card
(MO-10) belonging to the deceased is specifically
emphasized by the prosecution to drive home the guilt of
the accused. It is to be noticed that the SIM Card is
established to be that of the deceased. PW-79, the Nodal
connected cases
Officer of Vodafone Cellular Limited, from the SIM Number
H3 8991462160282615090, deposed it as the SIM Number of the
connection having No.9645880217 as subscribed by the
deceased. Ext.P74 is the communication from PW-79 to the
District Police Chief indicating the details of the
subscriber having SIM serial number as displayed in MO-10.
Ext.P89, is the application submitted by the deceased and
Ext.P90 is the ID proof of the deceased submitted to the
service provider. The confession to PW-103 is to the effect
that the SIM card was thrown away at Angadippuram and the
same was recovered from near the waiting shed of Platform
No.1 of the Angadippuram Railway Station from among the
dead leaves lying scattered on the ground. The confession
of A2 is also to the effect that the SIM Card was removed
from the switched off mobile phone and after scratching it
on the wire fencing, it was thrown into the dead leaves
lying beyond the fencing. The evidence of PW-103
embellishes the confession to specify the location as
'Angadipuram Railway Platform'; the words 'Railway
Platform' being absent in Ext.P14(a) confession statement.
It is also indicated by PW-103 that the SIM Card was
recovered by A2 from among the dead leaves lying outside
the fencing of Platform No.1 of Angadipuram Railway
connected cases
Station. The recovery was made after 10 days, on
15.02.2014, and it is very unlikely that such a small
object like a SIM Card could be traced out from the fallen
leaves lying near a Railway Platform where there is
definitely more than normal foot falls. Though it is
established that MO-10 is the SIM Card of the deceased, we
are not fully satisfied of the recovery, for reason of the
embellishment and the improbability of such a small object
lying there for 10 days for easy detection on a casual
search made among the fallen leaves as the I.O would have
us believe from the Mahazar, Ext.P14. Pertinent is also the
fact that the confession statement made regarding the SIM
card on 10.02.2014 was pursued only after 5 days. A
conscientious investigator would have first caused the
recovery of the SIM card, a minute object, left on a
Railway Platform.
48(i). Burnt Remnants: The burnt remains recovered
are from two places as per the confession statements
respectively given by A1 & A2. The clothes worn by the
deceased, a phone book, the cover of a scissors, a plastic
sack and a packet in which the jute sack was brought, is
said to have been burnt by A1 & A2, which were collected by
the Scientific Assistant as per Ext.P125. Here we note an
connected cases
anomaly, for the purse [MO17] and phone book [MO18] of the
deceased were recovered by the I.O, PW-108 from the house
of the deceased by Ext.P21 in the presence of PW-38, the
Mahazar witness, on 03.03.2014. Coming back to the
recovery, the confession statement of A1 was dated
10.02.2014 and marked as Ext.P125(a). The recovery itself
was from one 'Cheranga Thodu' a canal; from the stagnant
water on its northern side. Three packets of burnt remnants
are said to have been sampled from the water, which itself
is improbable. MO15 series sent to the Forensic Lab did not
bring out any incriminating information on scientific
analysis. More disturbing is the fact that the witness in
the Mahazar was a Civil Police Officer who was not examined
as a witness. Nor was the Scientific Assistant who took the
samples examined.
48(ii). There is also the gross inconsistency
pointed out by the defence, seriously putting to peril the
recovery itself. According to the defence, the Mahazar was
drawn up at 07.30 p.m on 11.02.2014 as seen from Ext.P125,
but on the same day the accused were produced before the
Magistrate at 7.35 p.m. as is evidenced from Ext.D5 remand
report. 'Cheranga thodu', from where the recovery is
effected, is at least 15 kilometers from the Magistrates
connected cases
residence. PW-26's evidence is pointed out wherein the
witness, a resident, speaks of the distance from Chulliyodu
to Unnikkulam being 2 kilometers; from where, to approach
'Chirang thodu' one has to go by foot for two kilometers.
Nilambur proper is further distant from Chulliyodu. We have
further assistance in Ext.P76, which is the inspection
report of the Doctor PW-80, who carried out the postmortem
and later scene inspection. Ext.P76 records that the pond
where the body was found is 12 kilometers from Nilambur and
the location of the stream of water where the burnt
remnants were found is two kilometers further north, as
deposed by PW-80. The contention that, if at 7.30 p.m the
recovery was made, there is absolutely no way the accused
could be produced before the Magistrate at 7.35 p.m.; has
to be accepted.
48(iii). The second set of burnt remains was
recovered by P34 on the confession statement P34(a) by A2.
The confession statement dated 10.02.2014 is vague and is
just that certain things were burnt near a canal and the
same kicked into the water in a canal. It is not clear as
to what were the things that were burned and the scientific
analysis [MO27] also does not reveal anything to connect A2
with the crime. More intriguing is that the above recovery
connected cases
was also made from 'Cheranga thodu' on 13.02.2014; when,
the earlier recovery of burnt remnants discussed in the
previous paragraph was on 11.02.2014 from that identical
location. When the earlier recovery was made, obviously the
confession from A2 was available with the I.O which however
was not pursued then. Here too, both the Mahazar witnesses
were not examined. The recovery of burnt remnants
definitely is a farce which raises serious questions on the
manner in which the recoveries were made. Pertinent is also
the fact that the place chosen to burn the various items is
a most unlikely choice. According to PW-26, a resident of
the locality who witnessed the recovery of a scissors from
the identical location 'Chiranga thodu', in the evenings
elephants descend from the nearby forest.
49. Mobile Phone of the deceased: The mobile phone
of the deceased, without its battery and the back cover was
recovered on 14.02.2014 [described as motherboard of the
mobile] as per Ext.P33 based on P33(a) confession
statement. The confession indicates that A2 threw MO26 into
a rubber estate on the side of Pookkottupadam-Chulliyodu
road, near a wayside Church. The recovery was made on
15.02.2014 when the confession itself was on 10.02.2014.
The recovery suffers from the same defect we pointed out as
connected cases
regards the other personal effects of the deceased, on the
identification made by the relatives, first in Court on the
same being confronted to them as the mobile of the deceased
without even the make being elicited in chief-examination.
50. Plaster Roll: Ext.P28 is the Mahazar by which
a Plaster Roll was recovered in a rubber estate on the side
of Ulladu-Puthiyarkodu road based on the confession
statement of A1 at Ext.P121. The plaster stuck on the mouth
of the deceased and that used as ligature is alleged to be
from the plaster roll recovered as MO24. On scientific
examination, it has been found in Ext.P221 that it is not
possible to say whether the adhesive tape found in Item
No.3 ['plaster roll of white colour adhesive tape'- MO24]
is similar to that in Item No.23 ['stained and foul
smelling adhesive tape with few hairs adhered on it'
obviously that recovered from the body of the deceased].
51. Torch: As per Ext.P87 Mahazar a torch was
recovered from the house of A1, marked as MO13 as per
Ext.P87(a) confession statement,which is dated 10.02.2014
and the recovery is on 14.02.2014.
52. Bottle: A1 is also said to have confessed
about having taken petrol in a bottle [MO30], which was
recovered as per Ext.P81 on the confession statement
connected cases
Ext.P81(a) of A1. This was obviously to burn the various
items including clothes of the deceased. The scientific
analysis of the Bottle, as per Ext.P223 did not reveal any
inflammable oils in the said bottle.
53. Metal Cover of Plaster Roll: The further
recovery made is of the metal cover of the plaster roll
[MO14] as per Ext.P82 Mahazar based on the confession
statement of A1, Ext.P82(a). The recovery was on
16.02.2014, when the confession itself was on 10.02.2014.
There is also no single witness examined to affirm the
recovery.
54. Scissors: As we noticed earlier the recovery
of the scissors does not speak well of the prosecution.
The scissors are marked as MO11 and the recovery is by
Ext.P15 mahazar. PW-108 would state that on 13.03.2014 A1
and A2 were questioned in the District Jail with permission
of the Magistrate, upon which A1 confessed about the place
where the scissors was thrown away. Though no confession is
marked the recovery of MO11 from Chiranga thodu on
23.03.2014 is stated to be on A1's confession statement on
13.03.2014. There is no explanation for the delay in
carrying out the recovery immediately after the alleged
statement. We recall that it is at the identical spot from
connected cases
which two burnt remnants were recovered, on the confessions
made on 10.11.2014 by A1 and A2, respectively on 11.02.2014
and 14.02.2014. The recovery is said to be made again from
a sand bank in 'Chiranga thodu' where there is water even
as per Ext.P15 Mahazar. MO11 was recovered by the ACP
himself as spoken of by PW-26. As we noticed there is no
confession recorded nor was the accused present on the
occasion of the recovery, to point out the place where the
scissors was thrown away. The scissors also eluded the
investigators when they recovered burnt remnants from the
identical spot, twice before.
55. All the recoveries were challenged in
cross-examination of mahazar witnesses wherever they were
examined. Each of the said recoveries were also challenged
when the Investigating Officers PWs-103, 105 and 108 were
examined. As we noticed the delay occasioned in the
recoveries despite the confession statements having been
recorded on the date of arrest is a very fatal aspect
against acceptance of those recoveries. When so much
confessions are made by the accused on arrest, there is no
explanation as to why custody was not sought immediately on
production of the accused before the Magistrate on
11.02.2014. PW-103 says that the accused were produced
connected cases
before the Magistrate on 11.02.2014 and remanded to
judicial custody. The application for custody was made only
on the next day even as per PW-103. The accused were
obtained on police custody on 13.02.2014, but the
recoveries even then were delayed.
56. The prosecution would have us believe that
they made the recoveries as per the confessions made by the
accused, which translate to incriminating circumstances.
While the prosecution would represent that they followed
the script of the accused, we have our own suspicions
about the confessions made; which also could be words put
in to the mouth of the accused as per the script prepared
by the prosecution. We say this specifically because the
objects recovered to project the preparation for the crime
and the recoveries made are more dramatic than real. Many
of the objects seized and recovered are of common utility
used in any household, like a torch, a plaster roll and
scissors. We also have our own doubts of the recoveries of
personal effects made on confession of the accused. We have
to remember that the objects, as per the prosecution case,
were thrown away in pitch darkness while coming back from
the pond where the body was drowned. These objects were
thrown away indiscriminately into estates and shrubs which
connected cases
exact spot, even for a resident, would not be easy to
identify the next day in day light. Moreover when many
items are thrown away indiscriminately it is difficult for
a person to exactly recall the spot in which a particular
item was discarded when questioned by the Police. We find
the entire recoveries to be artificial to the core.
THE OTHER INCONSISTENCIES:
57. Ext.P7 speaks of blood presence in the
computer room of the Party Office as detected by the
Scientific Assistant. In this context, we have to notice
the elaborate search made by the Police, twice; once when
the accused were brought to the scene of occurrence in the
course of investigation and then the Doctors, accompanied
by the Police, inspected the crime scene. Ext.P7 was
prepared in the presence of the accused at 15.10 hours from
the scene of occurrence. The Computer room is in the
south-west portion of the building where on the north-west
of the room blood presence was detected by the Scientific
Assistant. PW-103 specifically deposes on this aspect.
However, the same has not been collected and sent for
analysis, nor has the Scientific Assistant, who detected
it, cited as a witness.
connected cases
58. Ext.P76 is the report of inspection of the
scene of occurrence conducted by the team of Doctors along
with the Police. As per the report, every nook and corner
and edges of the table were scrutinised for traces of
blood. No trace of blood, hair or skin was detected from
the scene of occurrence. The objects which were in the
computer room of the Party Office were also closely
examined and a mop [MO29], in which faint trace of blood
was detected, along with certain other objects were seized.
This is in addition to the various objects seized by the
police at the time of their inspection in the presence of
the accused, which is evident from Ext.P7 scene mahazar.
All these objects were sent for chemical examination, which
did not bring forth any incriminating material. The stain
found in the mop was so insignificant that even the origin
could not be detected as seen from Exhibit P-254 analysis
report. In this context we have to notice the observation
of PW-80, the Doctor, that the penetration of the vagina,
which was grievous enough to cause death, would not have
occasioned profuse bleeding. It is safe to infer that there
could have been bleeding, no trace of which was found at
the scene of occurrence despite the scene having been
examined with a fine-tooth comb.
connected cases
59. The Special PP has stressed on the numerous
calls between A1 and A2. PW-104, the Sub Inspector who was
entrusted with the task of verifying the call details, has
deposed that between 01.03.2013 to 05.02.2014 there were 90
calls between A1 and A2, of which 20 calls were between
01.02.2014 and 05.02.2014. On the fateful day, i.e., on
05.02.2014 there were 9 calls. That A1 and A2 were friends,
was admitted by them and the prosecution case also proceeds
on that premise. There is a defence raised that the calls
were to and from the mobile in which the SIM card was
applied for and obtained by the mother-in-law of A2. The
prosecution relies on P157 and 161 receipts issued to A2 to
establish that though the subscriber was the mother-in-law,
it was used by A2. Ext.P157 is a receipt for the complaint
submitted by A2 to the police. In the address portion,
there is a handwritten mobile number which was not written
by A2, since it is a receipt issued from the Police
Station. The complaint which is annexed to the receipt does
not show a mobile number. Ext.P161 is a receipt issued by a
Service Station for the service of A2's vehicle, which
again has the mobile number written in a hand different
from that filling up the various columns in the receipt.
For all we know, it could have been entered by the Police
connected cases
personnel. The prosecution has not attempted to get the
receipt book from the Service Centre or examine the person
who issued the receipt. However, we find that the mobile
phone in which the SIM was found was recovered from A2's
vehicle. A2 cannot, merely on the subscription being in the
name of the mother-in-law, wriggle out of the use of that
particular number by him. However, merely because there
were frequent calls between A1 and A2, it cannot lead to an
inference that it was in preparation of the murder and in
furtherance of such plans, without something more than the
mere frequency of the calls.
60. The Special PP also stressed on the fact of
the injury caused to A1, which was denied by the suggestion
in cross-examination of PW-76 but admitted in S.313
questioning. PW-84 is the Head Nurse in the District
Hospital, Nilambur. The O.P. Register of the hospital
between 25.01.2014 to 22.02.2014 was seized by the police
as per Ext.P83 seizure mahazar in which she was one of the
witnesses. The Register was also handed back to the Lay
Secretary of the Hospital from whom the Register was taken
possession of, by Kychit Ext.P84. The O.P. Register was
produced before Court and marked as Exhibit P85. Ext.P85(a)
is the entry regarding O.P.No.25608, wherein the name of
connected cases
the patient is shown as Biju. PW-76 is the Junior
Consultant who treated Biju, 38 years, with a sprain of
right thumb. The patient was given analgesics and the thumb
was fixed with a splint. The OP ticket issued to the
patient with the signature of the Doctor was marked as
Ext.P77. The Doctor also deposed that any direct force
applied on the thumb could produce such an injury. The
prosecution case is that the said injury was caused while
committing the alleged murder of the sweeper inside the
Party Office. There was a specific suggestion made in
cross-examination by A1 that Biju was not treated as an
outpatient at his hospital on 06.02.2014 and that Ext.P77
is falsely created. In 313, the accused has spoken of the
injury having been suffered when he fell down in the
bathroom. It is trite that the accused can take any
inconsistent plea and in any event 'a false plea taken by
the accused cannot be the basis of the conviction when
the prosecution story itself suffered from glaring
infirmities' (sic-[Surendra v. State of Rajasthan (2011) 15
SCC 78, para 4]. A Division Bench of this Court in Santhosh
Kumar v. State of Kerala [1986 KLT SN 23 (C.No.41)] held
that suggestions made in cross-examination cannot be
treated as admissions and the accused is entitled to take
connected cases
conflicting defence.
61. We have to now examine the plea taken by the
Special PP by production of the bail application filed by
A2 and the prayer made for acceptance of the same in
Crl.M.A.No.1 of 2021 in Crl.A.No.607 of 2015. The admission
sought to be relied on is from Ground-B, in which it is
stated that A1 hired the vehicle of A2 and transported a
bag of waste to Unnikkulam, which was thrown into a disused
pond. We find the plea made by the Special PP to be
preposterous especially considering the fact that the bail
application is not a document signed by the applicant and
is one filed on instructions by the Advocate. The argument
seems to be that the Advocate could be examined; which
obviously was not done at the trial stage. Even before this
Court the application moved under Section 391 of the Cr.P.C
is grossly delayed; that too one moved after the conclusion
of hearing. The Advocate is also protected under Section
126 of the Evidence Act from any communication made to him
in the course of his professional engagement.
62. The learned Special PP seeks to rely on two
Single Bench decisions of the Andhra Pradesh and Himachal
Pradesh High Courts. Anantasayanam P.G. is a case in which
an Advocate was summoned to prove the notice sent to the
connected cases
defendant, the original of which was lost. The Court found
that there is no confidential communication that is sought
to be elicited in examination of the Advocate. This has no
application to the present case. Chaman Lal was again a
case where the Advocate was summoned to prove the pleadings
filed in the Court. The decision itself indicates that the
pleadings were signed by the party. In such circumstances,
we fail to understand why the Advocate was summoned and we
do not agree with the proposition laid down therein, with
due respect. We do not find any reason to entertain the
application and we reject the same.
63. PW-1 had spoken about the arrest of one Mani
in connection with the missing of the lady. The said person
is said (PW1) to have been in custody on 09.02.2013, which
information was conveyed when PW83, the Municipal Chairman
enquired with the Police about the missing case. Nothing
was elicited by the prosecution from PW-103 who was
initially in charge of the investigation, nor did the
defence attempt to seek an explanation regarding the
statement made by PW-1. There are certain suggestions made
to PW95, the Block Secretary, about the said witness
having deleted the Memory Card of his mobile for reason of
it containing photos of Mani with other leaders of the
connected cases
Party. But PW95 asserted that the deletion was for reason
of A1 having figured in the photos. This establishes that
A1 was very much available in the locality. Despite PWs.1
and 4 having spoken about the deceased being in inimical
terms with A1, there were contradictions in their
statements. Further, on his sister not returning from work
till evening, PW-1 contacted A1 and with his help
approached the Sub Inspector of Police who assured them
that if the lady does not turn up by next morning, a case
could be charged and enquiries made. PW-1 asserts that A1
had been with him throughout, after the body was recovered
till it was taken to the Medical College. He also deposed
to the fact that A1 passed on money for the purpose of the
funeral. Though PW-61 deposed that A1 was not available for
the funeral, he admitted that PW-95 had told him that A1
had gone to Perinthalmanna and will be back by 7 p.m. There
was also the aspect of an international call having been
received by the deceased on 03.02.2014, having duration of
489 seconds. The prosecution did not examine this aspect at
all. The arrest of yet another person, the failure to
enquire into the international call received in the mobile
of the deceased and the conduct of A1 who remained with the
family of the deceased gives rise to a reasonable suspicion
connected cases
about the death having occurred in some manner other than
the version of the prosecution.
64. In a case based on circumstantial evidence
alone, the oft repeated principles of how the guilt has to
be established has to be noticed. When there is no direct
evidence, the principles have been restated in Ashish
Batham at para 6, extracted here under:
"6. The principles, which should guide and weigh
with the courts administering criminal justice in
dealing with a case based on circumstantial evidence,
have been succinctly laid down as early as in 1952
and candidly reiterated time and again, but yet it
has become necessary to advert to the same, once
again in this case having regard to the turn of
events and the manner of consideration undertaken, in
this case by the courts below. In Hanumant Govind
Nargundkar v. State of M.P. [AIR 1952 SC 343] it has
been held as follows: (AIR pp. 345-46, para 10)
"In dealing with circumstantial evidence the
rules specially applicable to such evidence must
be borne in mind. In such cases there is always
the danger that conjecture or suspicion may take
the place of legal proof and therefore, it is
right to recall the warning addressed by Baron
Alderson to the jury in R. v. Hodge [168 ER 1136]
where he said:
'The mind was apt to take a pleasure in
adapting circumstances to one another, and
even in straining them a little, if need be,
to force them to form parts of one connected
whole; and the more ingenious the mind of
the individual, the more likely was it,
considering such matters, to overreach and
connected cases
mislead itself, to supply some little link
that is wanting, to take for granted some
fact consistent with its previous theories
and necessary to render them complete.'
It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt
is to be drawn should in first instance be fully
established, and all the facts so established
should be consistent only with the hypothesis of
the guilt of the accused. Again, the circumstances
should be of a conclusive nature and tendency and
they should be such as to exclude every hypothesis
but the one proposed to be proved. In other words,
there must be a chain of evidence so far complete
as not to leave any reasonable ground for a
conclusion consistent with the innocence of the
accused and it must be such as to show that within
all human probability the act must have been done
by the accused."
These principles were needed to be restated even as
late as in the decision reported in Sudama Pandey v.
State of Bi+har (2002) 1 SCC 679 and Subhash Chand v.
State of Rajasthan (2002) 1 SCC 702".
65. The Hon'ble Supreme Court in State of
Rajasthan v. Mahesh Kumar @ Mahesh Dhaulpuria & another
[(2019) 7 SCC 678] again emphasized the duty of the Court
to evaluate the circumstantial evidence so as to ensure a
chain of evidence clearly establishing the guilt of the
accused and completely ruling out any reasonable likelihood
of innocence of the accused. It was observed that in
deciding whether the chain is complete or not would depend
connected cases
on the facts of each case emanating from the evidence and
there can never be a strait-jacket formula laid down for
the purpose. Varkey Joseph v. State of Kerala 1993 Suppl.3
SCC 745 held that suspicion is not a substitute for proof.
It was held that there is a long distance between 'may be
true' and 'must be true' and the prosecution has to travel
all the way to prove its case beyond reasonable doubt. The
distance must be covered by way of clear, cogent and
unimpeachable evidence produced by the prosecution, before
an accused is condemned as a convict. The burden of proof
squarely rests on the prosecution and there can be no
conviction on the basis of surmises and conjectures or
suspicion howsoever great it may be. Strong suspicion,
coincidences and grave doubts cannot take the place of
legal proof.
66. We have discussed the evidence threadbare and
we have pointed out the inconsistencies starting from the
medical evidence adduced. The post-mortem report was
unnecessarily delayed and was signed only after the crime
scene visit carried out by the team of Doctors, which was
unnecessary since the medical opinion as to cause of death
does not depend upon examination of the crime scene. Right
from the beginning of the investigation there is a
connected cases
deliberate scripting of events, clear from the evidence led
by the prosecution. We have pointed out the glaring
improbabilities in the prosecution case which coupled with
the omissions and contradictions and the artificial manner
in which the recoveries were made, with perfunctory
identification carried out by the witnesses in Court, raise
very serious doubts as to the case set up by the
prosecution. The contradictions/omissions/embellishments as
pointed out by us is of such a magnitude that it materially
affects the case of the prosecution and are not of a
trivial nature as has been held in Sunil Kumar Sambhudayal
Gupta (Dr.) v. State of Maharashtra [(2010) 13 SCC 657].
67. Any investigation of a crime, especially one
based on circumstantial evidence is fraught with numerous
uncertainties and pitfalls which force the investigators to
blindly grope for loose threads which are to be tied up to
form the links in an unbroken chain of circumstances. The
investigation proceeds on a number of probabilities but a
successful prosecution would depend upon such probabilities
being raised to the level of a credible version which,
beyond any reasonable doubt brings home the guilt of the
accused. The ingenuity of the investigator is in unearthing
the evidence that eludes the common man and not in
connected cases
scripting a story and collecting evidence to match the
script. In Santhosh Kumar a Division Bench held that
Investigating Officers are expected to be fair towards the
accused also. The object they seek to serve, by the
investigation, should be vindication of justice and not
merely obtaining conviction at any cost.
We are unable to accept that in this case there is
an unbroken chain of circumstances which unerringly results
in the conclusion of the guilt of the accused and excludes
every hypothesis of their innocence. The lingering doubts
that pervades every aspect of the evidence led, persuades
us to give the accused the benefit of doubt and acquit them
of the charges levelled against them. We allow the appeals
of the accused, Crl.A.Nos.289/2015 and 303/2016, setting
aside the judgment of the trial court and direct the
accused to be released forthwith, if they are not wanted in
any other case. The appeal of the State, Crl.A.No.607 of
2015, is dismissed.
Sd/-
K.VINOD CHANDRAN
JUDGE
Sd/-
M.R.ANITHA
JUDGE
vku/jma/sp.
[ true copy ]
