Rakesh @ Kaykuru vs State Of Kerala
2022 Latest Caselaw 914 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

              THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

         TUESDAY, THE 25TH DAY OF JANUARY 2022 / 5TH MAGHA, 1943

                         CRL.A NO. 291 OF 2018

         [CRIME NO.224/2010 OF Kattur Police Station, Thrissur]

AGAINST THE JUDGMENT DATED 26.2.2018 IN S.C. NO.298/2012 ON THE FILE

             OF THE ADDITIONAL SESSIONS JUDGE, IRINJALAKUDA

   [CP 5/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS,IRINJALAKUDA]

APPELLANTS/ACCUSED NOS.1 TO 4:

     1       RAKESH @ KAYKURU,AGED 34 YEARS, S/O. AYYANDI
             VELAYUDHANKUTTY, PERINGOTUKARA, THANNIYAM VILLAGE,
             THRISSUR DISTRICT.

     2       SHAIJU,AGED 28 YEARS
             S/O. CHANDRANGATHAN, ARUKETTY HOUSE, NEAR NATTIKA S.N.
             COLLEGE.

     3       ARUN,AGED 30 YEARS, S/O. SATHEESH BABU, KODAPPULLY HOUSE,
             NEAR NATTIKA S. N. COLLEGE.

     4       BAIJU @ BOOTIYA BAIJU,AGED 32 YEARS, S/O. KUTTAPPAN,
             PARLIKATTIL HOUSE, KATTUKADAVU DESOM, KATTUR.

             BY ADV SRI.VISHNUPRASAD NAIR

RESPONDENT/STATE/COMPLAINANT:
           STATE OF KERALA
           REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
           ERNAKULAM-682031.(CRIME NO. 224/2010 OF KATTUR POLICE
           STATION, THRISSUR DISTRICT.)

             BY SHRI. ARAVIND V. MATHEW, PP.



     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.11.2021,
THE COURT ON 25.1.2022 DELIVERED THE FOLLOWING:
 Crl.Appeal No.291 of 2018               2


                                  JUDGMENT

The appellants are accused numbers 1 to 4 in

S.C.No.298 of 2012 on the files of the Additional

Sessions Court, Irinjalakuda. The aforesaid

Sessions Case arises from Crime No.224 of 2010 of

Kattur Police Station which was registered against

the appellants herein and two others, alleging

offences punishable under Sections 341,365 and 395

r/w. Section 120-B of the Indian Penal Code (IPC)

2. Out of the six accused persons, five

persons faced the trial in the aforesaid Sessions

Case, out of which, accused numbers 1 to 4 were

found guilty.

3. The prosecution case is as follows:

The appellants, along with one Vineesh Kannan

(Originally arrayed as A2) and Sahindev (Originally

arrayed as A4) conspired together to abduct PW1. He

was an Executive of Swapna Jewellery owned by PW6.

The aforesaid jewellery is also running the

business of purchasing gold ornaments pledged with

financial institutions and used to make

advertisements in respect of the same. On

2.05.2010, PW6 Anoop, the owner of the said

jewellery shop, received a telephone call, to the

effect that, some gold ornaments belonging to the

sister of the person who made the telephone call,

are pledged in Suraksha Finance, and requested their

help to release the said ornaments. Accordingly,

PW6 instructed PW1 to go to Irinjalakuda and to

purchase the said gold ornaments. As instructed,

PW1 went to Irinjalakuda on 3.05.2010 and while he

was travelling in an autorikshaw, the accused came

in a Scorpio car bearing registration No.KL-7-AU-

9862, abducted PW1 showing a knife and robbed an

amount of Rs.35,000/-. Later, they took the ATM

card from him and also got an amount of Rs.50,000/-

withdrawn from the ATM counter of State Bank of

Travancore, Chalakkudy branch. Thus, a total amount

of Rs.85,000/- was forcibly taken by the accused

from PW1. After committing the crime, they released

PW1 at Chalakkudy by giving an amount of Rs.200/-

for bus fare.

4. Based on the First Information Statement

furnished by PW1 on 6.05.2010, Crime No.224/2010

was registered by Kattur Police Station and after

completing the investigation, a final report was

filed before the Judicial First Class Magistrate

Court-1, Irinjalakuda. There is a delay of three

days in the registration of the F.I.R. After

completion of committal proceedings, the same was

committed to the Principal Session Court, Thrissur

and later the case was made over to Additional

Sessions Court, Irinjalakuda, where the same was

tried as S.C.No.298/2012.

5. For establishing the prosecution case, they

have examined PWs. 1 to 17 and marked Exhibits P1

to P28. No material objects were identified. After

completing the prosecution evidence, accused

persons were examined under Section 313 of the Code

of Criminal Procedure (Cr.PC) and the incriminating

materials brought out during the course of trial

were put to them. All of them denied their

involvement in the crime and pleaded innocence.

After examining the materials available on record,

the Sessions Court found the accused numbers 1 to 4

guilty and acquitted the 5th accused. On the basis

of the finding of guilt, accused Nos.1 to 4 were

sentenced to undergo rigorous imprisonment for a

period of 5 years each and a fine of Rs.20,000/-

each with a default sentence of simple imprisonment

for a period of three months each for the offence

under Section 365 of the IPC. Under Section 395,

they are sentenced to undergo rigorous imprisonment

for a period of 7 years each and a fine of

Rs.30,000/- each with a default sentence of simple

imprisonment for a period of 4 months each. Under

Section 341 of the IPC, the accused are sentenced

to undergo simple imprisonment for a period of one

month each and a fine of Rs.500/- each with a

default sentence of simple imprisonment for 15 days

each. It was ordered that, the sentence shall run

concurrently. Challenging the aforesaid conviction

and sentence, this appeal is filed.

6. Heard Sri. Vishnuprasad Nair, learned

counsel for the appellants and Shri. Aravind V.

Mathew, learned Public Prosecutor for the State.

7. The learned counsel for the appellants

contends that, the appellants are innocent of all

the allegations and the conviction and sentence

passed by the Sessions Court is without proper

appreciation of the materials on record. The

learned counsel for the appellants pointed out

that, the prosecution case is full of discrepancies

and there is no consistent case for the

prosecution. Learned counsel for the appellants

further contends that, there was no proper

identification of the accused persons as no test

identification parade was conducted despite the

fact that, PW1 who was allegedly abducted was not

having any previous acquaintance with any of the

accused persons. The vehicle allegedly used for

commission of crime was also not properly

identified. To substantiate the contentions, the

learned counsel relies on the judgment in Mohanlal

Gangaram Gehani v. State of Maharashtra [(1982)1

SCC 700].

8. On the other hand, the learned Public

Prosecutor seriously opposes the contentions put

forward by the learned counsel for the appellants.

According to the learned Public Prosecutor, the

prosecution has clearly established the guilt of

the accused by reliable evidence in the form of

PW1, PW2, PW4 and PW6. Their evidence was

corroborated by the evidence of PWs.7,8,12 and 13.

In such circumstances, the learned Public

Prosecutor seeks for dismissal of the appeal.

9. The main allegation is abduction of PW1 on

3.5.2010 at 3 p.m. and commission of the offence of

dacoity by taking away Rs.85,000/-. Crime was

registered on the basis of the information

furnished by PW1 on 6.5.2010 at 2.45 p.m. Exhibit

P1 is the First Information Statement and Ext.P14

is the F.I.R. in Crime No.224/2010 of Kattur Police

Station. In the First Information Statement, PW1

has stated as follows:

PW1 is the employee of Swapna jewellery,

Kozhikode which is owned by one Anoop. They used to

help the people to get the gold ornaments pledged

with the financial institutions released in favour

of customers and purchase the same. They used to

make advertisement about their activities in

various newspapers. While so, a person named Manoj

called the said Anoop over phone and informed that,

they want their services. Accordingly, as

instructed by Anoop, PW1 along with necessary

amount went to Irinjalakuda on 3.5.2010. As it was

informed that, the ornaments were pledged in South

Indian Bank, Thannissery branch, he went there and

contacted in the telephone number of the party

which was provided to him by the said Anoop.

Thereupon, PW1 was informed that, gold ornaments

are pledged by his sister and the same is at

Suraksha Finance at Vellayani. It was also informed

that they are waiting for him at Vellayani.

Accordingly, he went to Vellayani in a bus and

after getting down from the bus, he hired an

autorikshaw for going to Suraksha Finance. Upon

reaching there, he found the said institution

locked and therefore he returned. When he was

returning in the said autorikshaw, some persons

chased the autorikshaw in a Scorpio car with golden

colour and obstructed the autorikshaw. From the

said vehicle, five persons got down and forcibly

taken PW1 to their vehicle by placing a knife on

his neck. They demanded the amounts which he is

having and thereby taken Rs.28,000/- which he kept

in the pockets of his pants and a further sum of

Rs.7,000/- kept in his purse. A.T.M. card in his

possession was also forcibly taken from him.

Thereafter, he was taken to Chalakkudy and upon

reaching there, an amount of Rs.50,000/- was

withdrawn from an A.T.M. counter of the State Bank

of Travancore at Chalakkudy. Later, A.T.M card was

returned to him and he was released at Chalakkudy

after giving an amount of Rs.200/- towards bus

fare. The number of the vehicle in which PW1 was

forcibly taken was mentioned as KL-08-Y-9824.

10. When examined before the court, PW1 deposed

the incidents in a slightly different manner. The

vehicle number was not specifically mentioned by

PW1. Apart from the above, it was also stated by

PW1 that, the institution named Swapna jewellery

belongs to two persons viz. Anoop and Swaroop and

when he was abducted, the ATM Card in his

possession was that of Swaroop. After he was taken

to Chalakkudy, he required Swaroop to make some

payments in the said accounts. At that time, he did

not inform Swaroop as to the real incident and what

he has stated is that, in order to complete the

transaction, some more amount is required.

Immediately, Swaroop deposited an amount of

Rs.50,000/- in his account. Thereafter, two among

the accused persons had withdrawn an amount of

Rs.50,000/- from the ATM. Thereafter, ATM card was

returned to him. Mobile phone which was earlier

taken by them was also returned to him after

removing the sim card. After PW1 was released from

their custody, he immediately contacted Anoop from

an STD booth and informed about the incident. He

immediately instructed PW1 to come back and later

after holding discussion with Anoop and Swaroop who

are brothers, on the third day, they have decided

to submit a complaint. Accordingly, on 6.5.2010,

the matter was informed to the police and Ext.P1

F.I.S. and Ext.P4 F.I.R were registered by PW14.

11. PW2 is the autorikshaw driver who had taken

PW1 to the place of occurrence. He admits that he

had taken PW1 to Suraksha Finance and upon reaching

there, they found the said institution locked.

While returning, a vehicle described by him as a

jeep looks like a Qualis vehicle obstructed the

autorikshaw and from the said vehicle two persons

came outside and taken the passenger in the

autorikshaw in their custody, forcibly. The crucial

aspect to be noticed in this regard is that, he

neither identified PW1, as the passenger who was

travelling in the autorikshaw nor the accused

persons. PW2 was declared hostile and was cross-

examined by the Public Prosecutor. On examining the

evidence of PW2, it can be seen that, apart from

the fact of non identification of PW1 and accused

persons, it contains certain inconsistencies as

well with the evidence of PW1. Firstly, PW2 did not

identify the vehicle as a Scorpio. He did not even

mentioned the colour of the said vehicle. Secondly,

according to him, two persons came out of the

vehicle and taken PW1 into their custody. Whereas

the deposition of PW1 is to the effect that five

persons came out of the vehicle.

12. PW6 is Anoop, who is the owner of Swapna

Jewellery. He stated that, as he received a call

from one Manoj on 2.5.2010, he instructed PW1 to go

to Irinjalakuda. He also stated that, he entrusted

with PW1 two ATM cards and an amount of

Rs.35,000/-. One ATM card belonged to him and the

other ATM card was that of his brother. By 3.30

p.m. on the said day, PW1 called him over phone and

informed that, the transaction is being done but

for completing the same some more amount is

required. Accordingly, he immediately deposited an

amount of Rs.49,900/- in his account which is with

the IDBI bank. By 5.30 p.m., PW1 again called him

and informed that they have taken an amount of

Rs.35,000/- and also an amount of Rs.50,000/-

deposited in the account through ATM. Immediately,

he instructed him to come back to Kozhikode. Later,

on 6.5.2010, he sent PW1 to the police station for

reporting the matter.

13. When we examine the evidence of PW6, it can

be seen that, there is some inconsistencies in his

evidence as well. Firstly, the evidence of PW1 is

to the effect that the request which he made for

depositing the amount was in the account of Swaroop

and the amount was deposited by him. However, the

evidence of PW6 would reveal that, PW1 has

contacted him, and the payment was made in his

account which was later withdrawn by the

assailants. Apart from the above, in the evidence

of PW1, there is absolutely no mention about he is

being entrusted with two ATM cards. On the other

hand, specific statement of PW6 is to the effect

that two ATM cards; one belonged to him and the

other belonged to his brother, were entrusted to

PW2.

14. Another crucial aspect to be noticed in

this regard is that, even though PW1 has stated

about the telephone calls which he had made to

Swaroop, the same is contrary to the evidence of

PW6. It is to be noted that, the prosecution has

not cared to bring any call details of the

aforesaid witnesses to establish the making of such

phone calls. Similarly, even though, PW1 and PW6

have stated that they were engaged in the business

of purchasing gold ornaments pledged with financial

institutions and they used to make advertisements

in this regard, no evidence indicating such

advertisements were seen produced. This aspect

gains importance in the light of the fact that, as

per the prosecution case, the phone call requiring

PW6 to send a person to Irinjalakuda was received

by PW6, as a response to one such advertisements.

Another crucial inconsistency in this regard is the

delay in reporting the incident to the police

station. Despite the fact that, a serious incident

as narrated by PW1 has occurred, he left the place

of occurrence without informing the matter to the

police. Thereafter, the matter was informed only on

the third day. Even though, PW1 and PW6 tried to

explain the delay by stating that they have taken a

decision as to whether a complaint is to be filed

or not, after discussing with others. The aforesaid

aspects and the consequential delay creates a

serious shadow of doubt on the case advanced

through the aforesaid witnesses. If an incident in

the manner as described by the said witnesses was

occurred, normal response that is expected from a

prudent person, would be to immediately report the

matter to the police and the delay of three days in

the facts and circumstances of the case is very

crucial. When this aspect is taken into

consideration along with the other discrepancies as

mentioned above, the prosecution case becomes

weaker.

15. Lack of recovery of the knife alleged used

by the accused for threatening PW1 is another

instance which goes against the prosecution case.

There is absolutely no explanation forthcoming from

the prosecution for non production of the same.

This aspect is very crucial when taking into

account of the fact that, PW2, who witnessed the

incident of abduction of PW1, did not speak about

using a knife, even though, he had stated that,

after obstructing the autorickshaw, two persons

came out of the vehicle and taken the passenger

therein.

16. The learned counsel for the appellants

specifically highlighted the above discrepancies

and submitted that the same are fatal to the

prosecution. In addition to the above

discrepancies, the learned counsel further points

out certain glaring inconsistencies with regard to

identity of the vehicle allegedly used by the

assailants for committing the crime. It was pointed

out that, while examining PW1, he did not make any

mention about the number of the vehicle. However,

in Ext.P1 F.I.S, the number of the vehicle was

mentioned as KL-8-Y-9824. In order to establish the

identity of the vehicle, the prosecution relies on

the evidence of PW4, PW9, PW10 and Exts.P7 seizure

mahazar as well as Ext.P17 F.I.R. in Crime No.

552/2010 of Irinjalakuda Police Station. PW4 was

examined to prove that one of the accused named

Sahindev (not tried in the present case) has taken

the vehicle for rent from him. He deposed that, the

said Sahindev has taken a Scorpio Car for rent from

him on 1.5.2010 and the same was returned after 5

days. He also paid an amount of Rs.5,000/- as rent

for the said vehicle. Later, the police had taken

the said vehicle in custody stating that, the said

vehicle was used for commission of the crime in

this case. He mentioned the vehicle number as KL7-

AU-6874. According to him, the aforesaid vehicle

belongs to one Shafeeque. Conspicuously, the

evidence of PW4 would not establish the identity of

the vehicle at all. Another evidence in this regard

is that of PW9 and PW10. PW9 is a Police Officer.

He stated that, he along with Irinjalakuda Sub

Inspector Mohandas, ASI Philip, ASI Davis, Head

Constable Reji and CPO Sunil went to the place near

Karuvalloor bridge upon getting an information that

a Scorpio car is found parked there under

suspicious circumstances. When they reached there,

one person suddenly opened the door of the said

vehicle and tried to escape. He was immediately

apprehended by the police party. He was identified

as Rakesh, the 1st accused herein. In the vehicle,

five other persons were also there. Among them,

there were A2 and A3 in this case. On inspecting

the vehicle, they found certain weapons therein and

in respect of the said incident, Ext.P17 F.I.R. was

registered as Crime No.552/2010. The vehicle was

also seized by preparing Ext.P7 seizure mahazar.

PW16 is the Sub Inspector of Police who has taken

the aforesaid vehicle in custody and arrested the

said persons. He also stated in tune with the

evidence of PW9. Exhibit P7 is the seizure mahazar

of the said vehicle. On going through the aforesaid

seizure mahazar, it can be seen that, the colour of

the vehicle was mentioned as silver. From the

description of the vehicle as contained in Ext.P7,

it is seen that, on the front the number plate

exhibited was KL-8-Y-9254 whereas on the rear side,

the number shown was KL-07-AU-9862. When the police

party removed the number plate on the front side,

beneath the same, they could find another number

plate with the number KL-07-AU-9862. In this case,

as per the prosecution case, the number of the

vehicle which was used by the assailants to commit

abduction of PW1 is shown as KL-07-AU-9862. The

colour of the vehicle mentioned by PW1 is golden

colour. Thus, when we examine the identity of the

vehicle allegedly used by the assailants, there are

several glaring inconsistencies. Firstly, the

colour of the vehicle and also the number of the

vehicle mentioned by PW1 in Ext.P1 F.I.S. is golden

colour and KL-8-Y-9824, respectively. Exhibit P7

would indicate that the said vehicle was silver

colour and the number thereof is KL-7-AU-9862.

Apart from the above, there are absolutely no

materials to establish the ownership of the

vehicle. How the aforesaid vehicle came to the

possession of the assailants is also not seen

established by the prosecution. The only evidence

relied on by the prosecution is that of PW4. But

the number mentioned by him is completely

different. Further, PW4 is also not the owner of

the said vehicle and according to him, the vehicle

belonged to one Shafeeque. From the evidence of

PW4, it is evident that, the vehicle has been

released on kachit. Exhibit P26 is the said kachit.

On going through the same, it can be seen that, the

aforesaid vehicle was released in favour of one

T.V.Fathima. Thus, when all these aspects are taken

into consideration, there are absolutely no

materials indicating the identification of the

vehicle which is allegedly used by the assailants

in committing the crime. The lack of a consistent

case in respect of the same is very fatal to the

prosecution and it adversely affects the

credibility of the investigation.

17. Another crucial material relied on by the

prosecution, is the evidence adduced through the

officers of the IDBI Bank to establish the deposits

and withdrawals of amounts from the ATM. The

relevant witnesses in this regard are PWs.7,8,12

and 13. PW7 and PW8 were examined to prove the CCTV

footages from the ATM counter. Exhibit P7 is the

seizure mahazar of the aforesaid visuals in the

form of a Compact Disc (CD). However, the trial

court did not allow the marking of the CD on the

ground that the same was produced without proper

certification as contemplated under section 65B of

the Evidence Act. Therefore, CCTV visuals are not

available before this Court. The remaining evidence

is Ext.P6(a) and Ext.P13. Exhibit P6(a)is marked

through PW13 and it is a statement prepared by PW13

containing the details of transactions in the

account of PW6 which occurred on 3.5.2010. The

aforesaid document would indicate that, on that

day, an amount of Rs.49,900/- was deposited and

immediately five withdrawal transactions took place

at a time from 15:55:30 to 15:59:59 for an amount

of Rs.10,000/- each. It is also discernible from

Ext.6(a) that the aforesaid transactions were from

the ATM counter at Chalakudy. Exhibit P13 is the

account statement for the aforesaid transactions

which was produced along with the certification

under Section 65B of the Evidence Act. The entries

contained in Ext.P13 would fortify the contents of

Ext.P6(a). However, the discrepancy pointed out by

the learned counsel for the appellants is that, in

Ext.P13, the place of transaction is mentioned as

Thrissur and it does not contain any mention of

Chalakudy. However, PW13 has clarified this aspect

by pointing out that, the entry as contained in

Ext.P13, would only indicate the district in which

the transaction took place, whereas Ext.P6(a) was

prepared by him after examining the records, in

which it was specifically mentioned as Chalakudi.

Thus, from the evidence, it is clear that, the

transactions of deposits as well as withdrawals did

take place, as stated by PW1. However, that by

itself is not sufficient to connect the accused

persons with the aforesaid withdrawals. The

specific case of the prosecution in this regard is

that PW1 was initially taken by the assailants in a

Scorpio car by showing a knife and later he was

taken to Chalakudy from where the amounts in the

manner as mentioned above were withdrawn from the

ATM. While analysing the above allegation of

prosecution, it is to be noted that, the

prosecution miserably failed in proving the

identity of the vehicle by which PW1 was allegedly

brought to Chalakudy. In addition to the above,

there is absolutely no materials other than the

evidence of PW1 to prove that it was the accused

persons who were instrumental in withdrawing the

aforesaid amounts. The evidence of PW1 by itself

cannot be relied upon for arriving at a conclusion

due to many reasons. First of all, the evidence of

PW1 that he requested Swaroop to make the deposit

in the account is completely against the evidence

of PW6, who had stated that the said request was

made with him. The evidence of PW6 is to the effect

that, when PW1 was sent to Irinjalakuda, he was

entrusted with two ATM cards. But PW1 do not have

such a case. He spoke about only one ATM card and

going by the evidence, the said ATM card belonged

to Swaroop and the evidence of PW6 in this regard

is contrary to the same. In addition to the above,

the discrepancy in the manner by which the incident

of abduction occurred is very much relevant. While

PW1 has stated that, when he was coming in an

autorikshaw, it was obstructed by a Scorpio car and

five persons came out of the said vehicle and

forcibly taken him by showing a knife. PW2, the

autorikshaw driver deposed that, only two persons

came out of the said vehicle and he has not

mentioned about using a knife for the alleged

forcible abduction. He also did not identify PW1 or

any of the accused persons. Further, the number of

the vehicle mentioned by him in the FIS, is

different and in his deposition no number thereof

is mentioned. Above all, there is delay in

registration of the FIR as well, on account of

delay on the part of PW1 in reporting the matter.

Thus when we examine all these aspects, the only

conclusion possible is that the evidence of PW1 as

such cannot be relied upon, in the absence of any

corroboration for arriving at a finding of guilt of

the accused persons. In this case, when looking for

corroboration of the evidence of PW1, there is

absolutely nothing. On the other hand, the evidence

contains full of inconsistencies which I have

already discussed in detail in the above

paragraphs.

18. In addition to the above inconsistencies,

the learned counsel for the appellants also pointed

out serious dispute as to the identification of the

accused persons. It is true that, PW1 has

identified all the appellants herein while they

were in the dock. However, the specific case of the

learned counsel for the appellants is that PW1 was

not having any previous acquaintance with the

aforesaid accused persons and therefore in the

absence of any test identification parade, the

identification by PW1 cannot be relied upon. In

support of the said contention, he also relied on

the judgment in Mohanlal Gangaram Gehani's case

(supra). However, the aforesaid judgment cannot be

made applicable to the facts and circumstances of

the case. Even though, the absence of test

identification parade by itself is not a ground to

dispute the identity of the accused persons, in the

facts and circumstances existing in this case, the

aforesaid contention is having some relevance. This

is particularly because of the gross discrepancies

and inconsistencies in the evidence adduced by the

prosecution. It is evident from the materials

produced from the prosecution itself that when the

First Information Statement was being recorded, all

the accused persons were in the police station who

were arrested in connection with another crime viz.

Crime No.552/2010. This is an admitted fact and PW1

himself has stated that he had seen the accused

persons in the police station at the relevant time.

In such circumstances, the identification of the

accused persons by PW1 while the accused persons

were in the dock, will not give any advantage

to the prosecution. When the aforesaid aspect is

taken into consideration in the background of the

glaring inconsistencies as mentioned above, the

identification of the accused persons from the

dock, by PW1 cannot be treated as a valuable piece

of evidence to be relied on for establishing the

guilt of the accused persons, beyond reasonable

doubt.

19. Thus when all the above aspects are taken

into consideration, I am of the view the

prosecution, though is successful in creating a

suspicion as to the involvement of the appellants

herein in commission of crime, they did not succeed

in proving the case beyond reasonable doubts. It is

a well settled position of law that, a suspicion

however strong may be, cannot be a substitute for

proof beyond reasonable doubt. The prosecution has

a duty to establish the guilt by ruling out all

possible hypothesis of innocence of the accused

persons and they have to travel the distance from

"may be true" to "must be true'. In this case,

after analyzing the entire materials available on

record, I am of the view that, the prosecution did

not succeed in adducing evidence with the gravity

and intensity as required by law, to prove the

offences. In such circumstances, the appellants

herein are entitled for benefit of doubt.

In the result, the appeal is allowed and the

judgment dated 26.02.2018 in S.C.No.298/2012 passed

by Additional Sessions Court, Irinjalakuda is

hereby set aside. The appellants are found not

guilty of any of the offences alleged against them

and thereby they are acquitted from all the

charges. Their bail bonds are hereby cancelled.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

pkk