Kerala High Court
Jayaprakash @ Prakash vs State Of Kerala on 18 March, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 18TH DAY OF MARCH 2022 / 27TH PHALGUNA, 1943
CRL.A NO. 1213 OF 2019
AGAINST THE JUDGMENT IN SC 229/2016 OF ADDITIONAL DISTRICT COURT &
SESSIONS COURT - IV, KOTTAYAM / II ADDITIONAL MACT, KOTTAYAM
APPELLANT:
JAYAPRAKASH @ PRAKASH,
AGED 45 YEARS
VADASSERIL VEEDU, PAYYANEDAM KARA, PAYYANEDAM
P.O.PALAKKAD DISTRICT.
BY ADVS.
S.RAJEEV
K.K.DHEERENDRAKRISHNAN
V.VINAY
D.FEROZE
RESPONDENT:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM (CRIME NO 1257/2015 OF KOTTAYAM EAST POLICE
STATION
SRI.V.S.SREEJITH, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
10.03.2022, THE COURT ON 18.03.2022 DELIVERED THE
FOLLOWING:
Crl.Appeal No.1213 of 2019
2
K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.
-------------------------------------------
Crl.Appeal No.1213 of 2019
-------------------------------------------
Dated, this the 18th March, 2022
JUDGMENT
K.Vinod Chandran, J.
The prosecution alleged a crime for gain,
wherein the accused killed his room mate cum co-
employee and disappeared with the ornaments and mobile
of the deceased. The prosecution examined 28
witnesses, marked 46 documents and produced 20
material objects. The trial court convicted the
accused under S.302 and S.394 of IPC and sentenced him
to imprisonment for life and rigorous imprisonment for
5 years, respectively. Fine was imposed at Rs.50,000/-
and Rs.5,000/- with default sentences and provision
for compensation to the dependants of the deceased.
2. Learned Counsel Vinay.V appeared for the
appellant/accused and argued for acquittal. The time
Crl.Appeal No.1213 of 2019
at which the FIS was made is not clear and the time
noted does not tally with what is stated by PW1. There
is no clarity as to whether the accused was staying
together with the deceased; which seriously puts to
peril the last seen together theory, one of the trump
cards of the prosecution. There were other occupants
in the Hotel in which the murder occurred, none of
whom were examined. There is no time recorded of death
and hence the exit of the accused from the hotel at
night, as seen from the C.C TV footage cannot be an
incriminating material. The hard disk of the C.C.TV
was not produced before Court nor the footage played
over at the time of evidence. The evidence available
of the technician and the Investigating Officer (I.O)
is to the effect that they saw the footage, in which
the accused and the deceased were seen coming in and
going out of the hotel. There can be no reliance
placed on such testimony without production of the
hard disk and the footage being viewed by the Court,
in the presence of the accused.
3. The recoveries as seen from Exts.P22, P23
Crl.Appeal No.1213 of 2019
and P36 are specious. Crucial witnesses have not been
examined and the signatures of the witnesses to the
mahazar differ. The recovery of an ornament is
recorded in English, translated from the confession
spoken of by the accused in Malayalam. The same is not
permissible as has been found by a Division Bench of
this Court in Sanjay Oraon v. State of Kerala 2021 (5)
KHC 1. While the ornament and the mobile phone of the
accused were recovered from the State of Telangana,
one mahazar was recorded in English and the other in
Malayalam. Despite the relatives and friend of the
deceased having been examined they were not confronted
with the recovered items and hence they are not
identified as those belonging to the deceased. There
is no seizure mahazar for MO1 knife and the same is
marked through the shop owner who sold it. The Police
Officer, who made the seizure from the scene of
occurrence does not speak of it at all.
4. The medical evidence shows a weapon with
two sharp edges having been used while MO1 is sharp
only on one side and blunt at the other; which could
Crl.Appeal No.1213 of 2019
only cause triangular shaped wounds on stabbing. The
I.O or the C.C TV technician does not speak of the
accused having moved out of the hotel for the purchase
of the knife which is said to have been made from a
near by shop at 7:00 p.m. Eighteen chance prints were
taken from the room, when the knife was not examined
for finger prints. Only one out of the 18 prints match
with that taken from the accused, that too a print
recovered from the door. Though the prosecution
asserts that the accused was staying in the room in
which the dead body was found, there is not even one
print found inside the room. Ext.P21 handwriting does
not tally with that in Exts.P3 and P3(a). As has been
held in Yoosaf.S.K v. State of West Bengal [2011 (11)
SCC 754], the mere fact of the accused having
absconded cannot solely result in a conviction. The
learned counsel reads out the version of the accused
given at the time of Section 313 questioning, to
emphasise the reasonable explanation offered by the
accused. Even according to the prosecution, the
accused was dropped by the Autorickshaw driver at the
Crl.Appeal No.1213 of 2019
casualty of the Kottayam Medical College Hospital,
where another co-employee was admitted. He visited
PW4, the co-employee and took him to Kozhikode Medical
College. On the next day he was informed by the
contractor (PW7) that Stanley was murdered. The
accused went to his house at Palakkad from where he
was arrested and later taken to Telangana to carry out
the recoveries. The evidence is said to be planted and
the accused framed.
5. Reliance is placed on Reena Hazarika V.
State of Assam [2019 (13) SCC 289] to emphasise the
right conferred on the accused to explain the
incriminating circumstance which have to be put to him
specifically in the 313 questioning. The counsel took
us to the specific aspects on which the accused was
not questioned. The case is one of circumstantial
evidence and the circumstances proved should form a
complete chain with unbroken links to connect the
accused with the crime. The learned counsel placed
reliance on Hanuman Govind Nargundkar v. State of M.P.
[952 SCR 1091], Ashish Batham v. State of M.P. [2002
Crl.Appeal No.1213 of 2019
(7) SCC 317] and NavaneethaKrishnan v. State
[2018(16) SCC 161]. It is argued that the statements
made by the accused under S.313 shall not be used to
fill up the lacuna in the prosecution case nor can it
be made the basis for conviction. When two views are
possible the benefit has to be given to the accused
and there is a long distance between 'may be true' and
'must be true' which has to be traversed to enter a
conviction [Rajkumar Singh v. State of Rajasthan 2013
(5) SCC 722].
6. Sri. Sreejith V.S, the learned Public
Prosecutor points out that there is no confusion with
respect to the FIS which was made at 11:15 a.m. The
slight delay that occurred in reporting the crime is
explained by PW1, who, on seeing the murdered person
took the body to be of the accused and informed the
contractor as also the President of the Municipality
before coming to the police. The murder was committed
by stabbing and smothering the victim. MO1 knife was
used for stabbing and MO2 pillow for smothering; both
of which were recovered from the scene of occurrence.
Crl.Appeal No.1213 of 2019
The chemical analysis proved the presence of blood in
both these items. The accused was arrested from
Telangana and brought to Kerala on a transit warrant.
The chain worn by the deceased, was recovered from the
institution, where the accused pledged it and the
mobile of the deceased from the individual to whom it
was sold. The C.C TV footage clearly shows the accused
having left after 11:30, returned a little later and
then again leaving at 11:45. The accused has absconded
from the place and was arrested from another State.
The accused is proved to have been staying in the same
room with the deceased soon after which the deceased
was found dead and accused found missing. The
circumstances form an unbroken chain to connect the
accused with the crime. The FSL report clinches the
guilt of the accused.
7. The medical evidence proves the fact that
the death was a homicide. PW21 is the Doctor who
conducted the post-mortem examination. The cause of
death was stated to be due to the combined effect of
smothering and injury sustained to the neck. Injuries
Crl.Appeal No.1213 of 2019
number 1,2,8,12,14,15 and 16 were said to be incised
wounds. Injuries no.1 and 8 according to the Doctor
could be caused either by a single edged weapon or a
double edged one. There is no reason to find that the
injuries could not have been caused by MO1 knife.
8. As far as the last seen theory is concerned
it is inextricably linked to the circumstance of the
employment and stay of the accused and deceased. PW7
is the contractor under whom both the accused and
deceased were working. The accused joined PW7, a
month back and was deputed to work at Kottayam and his
stay was arranged at one Hobnob Hotel. The deceased,
who was also working with PW7 was likewise deputed to
Kottayam and he was staying along with the accused.
PW7 used to call them daily and on the crucial day
there was no response from both their mobile phones.
He called the hotel and requested them to ask his
employees to call him back. The person in charge of
the hotel called him back and informed him that one
person was missing and the other was lying in the room
after vomiting blood. When he was getting ready to
Crl.Appeal No.1213 of 2019
proceed to Kottayam, the police called him and showed
him the picture of the dead man in his Whatsapp. He
identified the deceased as Stanley and after that he
has not seen the accused. In cross-examination he
stated that he cannot remember whether in his prior
statement, he stated that the police called him and
asked him to remain at Ernakulam. He asserted that the
police had sent him the photo on the Whatsapp, which
was denied by the I.O. It was also stated in cross-
examination that it was PW4, who was sent along with
the accused for the work at Kottayam. PW4 took ill and
was admitted to the hospital, and hence on 15.10.2015,
the work at the site was not carried out in the
afternoon. In cross-examination a suggestion was made
that there existed a dispute between PW7, his brother
in law and the deceased, in connection with a landed
property for which the deceased had paid Rs.5,00,000/-
to PW7. It was also suggested that PW7 along with his
brother-in-law murdered the deceased, both of which
were denied by PW7.
9. PW1 is the Manager of the Hotel, who
Crl.Appeal No.1213 of 2019
deposed that as per serial no.146 of the accommodation
register of the hotel, Jayaprakash (accused) was given
room no.303 on 13.10.2015 at 3:10 p.m. The room was
given on rent at the request of the contractor by name
Joseph (PW7). On 16.10.2015, PW7 called and told him
that the employees had not reached the site and
requested him to verify from the room they were
occupying. When he went the room he saw the door
closed, but it opened on being pushed. He saw Stanley
lying under the bed, drenched in blood. In the FIS he
had said that he saw Jayaprakash, the accused, dead in
the room. Obviously, PW1 was confused and he could not
correctly identify the dead body which was lying under
the bed. PW1 immediately called the owner of the lodge
and Chairman of the Municipality. He admitted the FIS
and its contents, which was marked as Ext.P1. He also
deposed that both the deceased and the accused used to
leave for work in the morning and return by evening.
He said there were people staying in the near by
rooms. The FIS marked as Ext.P1 was in tandem with
what was stated by PW1, except for identification of
Crl.Appeal No.1213 of 2019
the person lying dead. As pointed out by the learned
counsel for the appellant, there is some difference in
time recorded in the FIS and deposed by PW1. In the
original FIS, as seen produced in Court, the date and
time shown is 16.10.2015 at 15:48. According to PW1 he
came to know of the death at 9:00 am on 16.10.2015,
but before informing the police, informed the
Municipal Chairman. He also said that the police came
within 5 minutes. Hence, definitely the FIS would have
been recorded in the fore noon. The copies of the FIS
as available with the learned G.P and the learned
Counsel for the appellant shows the time as 11.15 am.
There seems to be a serious discrepancy in the time
recorded in the FIS, which assumes significance in the
context of the exact or even probable time of death
having not been noted in the post-mortem examination
report, Ext.P27.
10. PW4 is the other employee who was with the
accused and had taken ill. He deposed that he was
staying in room no.303 in the hotel with the accused.
He also said that the deceased was the person who came
Crl.Appeal No.1213 of 2019
as his replacement. It was his testimony that he was
admitted at the Medical College Hospital, Kozhikode
and that the deceased was staying in room no.303. In
cross-examination he admitted that himself and the
accused together took room no.303 and that he was
admitted to the hospital by the accused when he
developed stomach pain at the work site. He also said
that it was not the accused who took him to the
Kozhikode MCH. He further stated that another employee
Sujith was also staying in the hotel; who was not
examined. The evidence of PW4 is sketchy and it is not
very clear as to whether he was later admitted to the
MCH at Kozhikode or Kottayam. In fact in the S.313
statement also the reference made is to Kozhikode. It
is PW4's case that he was not taken to the MCH by the
accused while the accused in 313 stated that he had
taken PW4 to the MCH. There is also no clarity in
PW4's evidence as to the room in which he stayed. At
best what we understand from the evidence of PWs 1 and
4 is that there were two rooms taken by the employees
of PW7, room nos.202 and 303. PW4 and the accused were
Crl.Appeal No.1213 of 2019
staying in room no.303. PW4 took ill at the work site
and he was admitted in a hospital. The deceased came
to Kottayam as replacement for PW4 and stayed in the
very same hotel. It cannot be even said that both
accused and deceased were staying in one room and
PW4's statement to that end cannot be accepted since
obviously he was in the hospital when the deceased
came to Kottayam.
11. PW9 was an employee in the hotel, who
surrendered the accommodation register to the Police
which was marked as Ext.P3. The Entry at Item No.146
of the register evidences room no.303 having been
given to the accused and is marked as Ext.P3(a). He
confirmed that the handwriting in the register at item
no.146 was that of Jayaprakash and he witnessed the
entries being made. PW24 was another employee of the
hotel. He confirmed that the accused was a resident of
the hotel on 15.10.2015. At 11.45 p.m he saw the
accused, who was staying in room no.303, coming down
the staircase. The accused asked him where the MCH was
and he responded that it was at Kottayam. The accused
Crl.Appeal No.1213 of 2019
proceeded to Kanjhikuzhi, immediately came back and
then left by 12 midnight. He also spoke of having seen
Stanley dead on the next day morning. In cross-
examination he said that the accused, first seen going
out, came back in five minutes and then again left the
hotel at 12 p.m. PW10 is the tea master of the hotel
who witnessed Ext.P4 scene mahazar and also the
inventory by which the accommodation register, Ext.P5
was seized. PW8 is the auto driver who took the
accused to the MCH, Kottayam at around 11.30 p.m on
the night of the 15th. The accused boarded the auto at
Kanjhikuzhi and informed PW8 that he wants to go to
the MCH Cardiology since a friend was admitted there
with heart attack. PW6 dropped the accused in front of
the casualty and he was paid Rs.200/- as fare.
12. PW3 is the Municipal Chairman who was
first called by PW1 and he also witnessed the inquest
report, Ext.P2. PW14 is the Scientific Assistant who
visited the scene of crime on 16.10.2015 and collected
ten material objects from the scene of occurrence. She
is said to have collected the samples and sealed it
Crl.Appeal No.1213 of 2019
and handed it over to the I.O to send it for FSL
examination. The report of collection of samples was
marked as Ext.P15. PW15 is the Police Photographer who
took the photographs at the scene of crime and the
inquest of the dead body. PW18 is the fingerprint
expert who inspected the crime scene and took chance
prints. Ext.P21 was the report which indicates that
one chance print collected by him from the crime scene
tallied with the right palm print of the accused.
Ext.P17 chance prints were collected by PW18 from the
crime scene and Ext.P18 is the palm print of the
accused received by him, as sent to him by the I.O. In
cross-examination he confirmed that the palm prints of
the accused were not taken by him and as is the usual
practice, the I.O had taken the prints and sent it to
him. He does not specifically say as to from where
chance prints were taken, especially the one that
tallies with that of the accused.
13. PW11 is the CCTV technician, his testimony
was that the data he took out from the hard disk of
the CCTV in Seetha's Garments shop was the footage
Crl.Appeal No.1213 of 2019
between 6.00 a.m on 15.10.2015 and 10.00 a.m. on
16.10.2015. He says that he copied it in a pen drive
and DVD and gave it to the Police along with the hard
disc. Ext.P6 is the mahazar by which the seizure of
the hard disc, pen drive and the DVD were made by the
Police. However, none of these were produced in Court
and identified through PW11. There was also no attempt
made to play the DVD in Court to bring out the
relevant incriminating circumstance. The mere
statements made by PW11 and the I.O, PW27 regarding
the exit and entry of the deceased and accused cannot
be relied on as a substantive evidence. The acceptable
evidence by way of the data recovered along with the
hard disc was not even produced before Court. The
entire evidence regarding the CCTV footage hence has
to be eschewed.
14. Now we come to the recoveries which are
said to have been made from the accused under S.27
evidenced by Ext's P22, P23 and P36. Before we go
through the mahazar we scan through the deposition of
PW27, I.O. He deposed that the accused was arrested at
Crl.Appeal No.1213 of 2019
Telangana on 10.11.2015. PW26, running a hotel at
Warrangal witnessed the arrest from the location as
seen from Ext.P36. On the arrest of the accused his
mobile phone and Election ID card were seized from his
body. The IMEI number of the mobile and the details of
the SIM card found in it, were specifically recorded.
PW26 proved Ext.P36 and also identified MO19 Mobile
Phone recovered. PW27 I.O who carried out the
recovery, however identified the mobile phone
recovered from the body of the accused (by Ext.P36) as
MO20. The witnesses had deposed in Hindi which was
translated through an Advocate but the mahazar was
recorded in Malayalam; we say this because the other
Mahazar, concerning the recovery of a gold chain, was
recorded in English for reason of that recovery having
been made in Telangana.
15. PW25 witnessed the recovery of a gold
chain pledged in Muthoot Finance Corporation, of which
he was an employee. Ext.P22 is the mahazar recorded in
English. The confession Statement is also recorded in
English which purportedly led to the recovery of a
Crl.Appeal No.1213 of 2019
gold chain weighing 33.5 gms with a cross attached to
it. The deposition of the I.O as to the confession
statement was also in English. He said that he had
translated the confession spoken by the accused in the
vernacular Malayalam. The confession obviously was
made before the recovery mahazar was prepared at the
locality, to which the accused led the Police. Even if
a translation is made, for the benefit of the person
from whom the recovery was effected, nothing prevented
the I.O from recording the confession in Malayalam
separately and producing it in Court. Recording of a
confession statement in the translated form is
vitiated as has been found in Sanjay Oraon(supra).
PW25 admitted his employment in Muthoot at the
relevant time. PW25's testimony was that on 26.10.2015
the accused came with one Ananda Rao to pledge a gold
chain. It was also stated that since the accused was
not a native, first he did not accept the gold chain
and later the accused came with Ananda Rao and pledged
the chain for Rs.50,000/- Ananda Rao was not examined
before Court. As specifically pointed out by the
Crl.Appeal No.1213 of 2019
learned Counsel for the appellant, we verified the
signature of PW25 in Ext.P22 from that put in his
deposition and found substantial variance. True PW19,
the Senior CPO of Kottayam East Police Station, who
accompanied the I.O also witnessed the recovery.
However, the variation of the signature of PW25, along
with the other infirmities pointed out by us, cast a
suspicion on the recovery.
16. Now we come to the recovery of the mobile
phone, again by way of a confession statement at Ext.
P44. As per the confession statement the accused had
sold the mobile phone of the deceased to one Venugopal
at Warrangal. The said mobile phone was marked as
MO19; which was identified by PW26 as the mobile
recovered from the accused at the time of his arrest.
The seizure was witnessed by PW19 the Senior CPO, one
Yogesh, who according to the I.O is a Police Constable
of Telangana State and Venugopal, from whom the
recovery was made. As in Ext.P36, the IMEI No of the
instrument was specifically recorded in Ext.P23.
However, Venugopal was not examined nor was the Police
Crl.Appeal No.1213 of 2019
Constable from Telangana. PW19 alone deposed before
Court about the recovery of the mobile phone along
with the I.O, which however was not identified by him.
The entire recoveries carried out are suspicious and
do not inspire confidence.
17. We also noticed that Yogesh the Police
Constable of the Telangana State witnessed both
Exts.P22 and P23. But his signatures in the said
documents vary considerably, over and above the
inconsistencies noticed. Further, PW2 and PW5, nephews
of the deceased and PW6 the neighbour of the deceased,
who were presumably examined to identify the mobile
phone and gold chain of the deceased; were not
confronted with the same. Hence, there is nothing to
show that the recovered items were that belonging to
the deceased and stolen by the accused. The recoveries
purportedly under the confession statements cannot
constitute an incriminating circumstance to establish
the culpability of the accused.
18. MO1 is the knife said to have been
recovered from the scene of occurrence. However none
Crl.Appeal No.1213 of 2019
of the official witnesses speak of MO1 knife having
been recovered from the crime scene. PW14 was in the
scene of occurrence and collected 10 material objects
from the crime scene, as evidenced by Ext. P15. Item
no.4, in Ext. P15 is a knife, which was not confronted
to her or identified as the one recovered from the
crime scene. In fact no question was put to her in
chief and it was in cross that she was asked about the
absence of the measurements of Item no.4 in Ext. P15.
The recoveries from the scene of occurrence were made
in the presence of PW20 and PW23. Again they were not
shown the knife to get it identified as the one
recovered from the crime scene. PW20 & PW23 do not
even speak of the recovery of a knife having been made
from the crime scene. The only evidence regarding MO1
is offered by PW16 a stationery store owner. According
to him at around 7:00 p.m on 15.10.2015, the accused
came to his shop and purchased MO1 knife. He admitted
that he was shown the knife in the Court premises by a
lady staff, presumably PW17. He said that when he was
shown the knife by a lady staff in the Court, he
Crl.Appeal No.1213 of 2019
identified it as the model sold from his shop. A
leading question was put to him whether the knife with
which he was confronted in Court, was the one
purchased by the accused, which he affirmed and
through him the knife was marked as MO1; which
identification cannot be reckoned as proper. PW27, I.O
also identified the knife; which was confronted to him
for the first time, in re-examination. It is pertinent
that he was not present when the knife was seized from
the crime scene. The further confession in Ext.P44 is
the shop from which the knife was purchased, which did
not lead to any recovery of a material object. This
has no relevance under Section 27 of the Evidence Act.
But that definitely could have been used under Section
8, [H.P Administration v Om Prakash 1972 (1) SCC 249]
if the seizure of the knife from the scene of crime
was proved. Without the source from which the knife
was obtained by the I.O being proved the discovery of
the shop from which it was purchased has no
incriminating value. Since there is no evidence of
the recovery of the knife from the scene of crime the
Crl.Appeal No.1213 of 2019
evidence of PW16 or PW27 does not in any manner
incriminate the accused.
19. The scientific evidence is of chemical
analysis, finger print comparison and the mobile
details. Ext.P46 is the FSL report, which, in the
judgment is mentioned as produced through PW27, the
I.O. The appellant contended that it was not marked
through the I.O and we perused the entire testimony of
the I.O and were unable to find Ext. P46 having been
marked through him or any other official witnesses.
Ext.P46 is a report of the Asst. Director of the State
FSL, which under section 293 Cr.P.C can be used in
evidence without the author being examined. But it has
to be marked through an official witness, the I.O, who
receives it from the FSL.
20. A perusal of the report also does not
incriminate the accused since the blood found on the
M.O's are obviously from the crime scene, from where
they were recovered. The blood detected in certain
items were found to be belonging to Group AB, but the
blood group of the deceased was not tested by the
Crl.Appeal No.1213 of 2019
Doctor who conducted post-mortem. The analysis of
hair, revealed one sample collected from a comb in the
crime scene to be that of the accused; quite natural
since he was staying there. The nail clippings and
hair of the accused were taken by a Doctor at the
instance of PW20, evidenced by Ext.P24 Mahazar. There
is nothing to indicate the said clippings having been
sent to the Court or even the FSL. Ext.P46, is utterly
useless in proving the case of the prosecution and has
not been properly produced before Court.
21. The next is the finger print comparison as
carried out by PW18, evidenced by Ext.P21. PW18 speaks
of the prints having been taken from the crime scene
and the same compared with the prints sent to him by
the I.O,; purportedly of the accused. But PW27 does
not speak of any such prints having been taken from
the accused or being sent to the expert and definitely
not through Court. The comparison also revealed only
one chance print having similarity; but the place or
object from which that chance print was taken is not
identified. The chance prints were also taken from the
Crl.Appeal No.1213 of 2019
crime scene, where the accused was staying and the
prints definitely would be there and surprisingly,
though MO1 knife was allegedly seized from the scene
of crime, it was not examined for finger prints.
22. PW13 is the Nodal Officer of Airtel, a
service provider. PW13 produced the call details of
the instrument having IMEI no.35976-4040851810 between
16.10.2015 and 12.12.2015. He also produced the
Application Form (Ext. P10) and the copy of the
Election ID (Ext. P11) of the deceased; as that of the
subscriber of SIM number 9995164132. The prosecution
relies on Ext. P23 Mahazar for recovery of the phone
of the deceased. The IMEI numbers shown in the said
Mahazar are (i) 359764/04/085180/8 and (ii)
359764/04/085181/6 which do not tally, atleast in the
last two numbers, as deposed by PW13. Further we
remind ourselves that MO19 recovered from one
Venugopal was identified as that recovered from the
accused, by PW26, witness to PW36 Mahazar, at the time
of arrest of the accused; before the confession
statement. MO19 recovery was testified only by PW19,
Crl.Appeal No.1213 of 2019
the CPO, who was not shown MO19 in Court and the I.O,
PW27, who identified it. The other witnesses to Ext.
P36, were PW23, the CPO of Telangana and the person
(Venugopal), from whom the recovery was made; both of
whom were not examined before Court. The further
testimony of PW13 is with reference to the call
details (Ext.P14) of the SIM No.9995164132, that of
the deceased, between 01.09.2015 and 16.10.2015. Ext.
P14 indicates a number of calls from the admitted
mobile phone number of PW7, 9447053917, between 1 p.m
and 5.30 p.m of 15.10.15. Admittedly there was no
investigation carried out regarding this as deposed by
PW28, I.O. Ext.P14 did not show any calls from the
admitted mobile number of PW5, 9288652652, contrary to
the claim of PW5.
23. From the evidence led as discussed above,
we do not find any incriminating circumstance against
the accused, but for the fact that he was one of the
occupants in the room in which the crime of murder
occurred. The accused and the deceased admittedly
stayed in the same lodge and were employed under PW7.
Crl.Appeal No.1213 of 2019
Though it has been proved that the accused had taken
room no.303 there is nothing to prove that the
deceased was staying along with him. Be that as it
may the accused admittedly was staying in room no.303
and it was in that room the corpse was found. There is
testimony of PW24, to show that the accused had left
between 11:30 p.m and 12 midnight; previous to the
detection of the dead body in the morning. The
employee of the hotel, who saw the accused or the auto
driver who took him to MCH did not find anything
suspicious. As has been rightly pointed out by the
learned Counsel for the appellant, the exact time or
at least the range of time in which the death occurred
is not seen recorded in the post-mortem report. There
is an anomaly with respect to the time in which the
FIR was registered, which stood unexplained. More
disturbing is the fact that the copies of the FIR,
with the Prosecutor and the Counsel for the appellant
shows a different time from that shown in the original
with the Court.
24. Admittedly, when the accused went to the
Crl.Appeal No.1213 of 2019
MCH his co-employee was admitted there. PW4 his co-
employee, who was admitted at MCH, we found, deposed
without any clarity. While the accused claims that he
was arrested from Palakkad, the prosecution case is of
an arrest from Telangana. The recoveries allegedly
made from Telangana, we found to be very suspect and
the recovered objects were not attempted to be
identified, as belonging to the deceased, through the
witnesses, close associates of the deceased, who were
examined for that specific purpose. The recoveries
fail to incriminate the accused for that sole reason
as held in NavaneethaKrishnan (supra). Ownership of
the recovered ornament and the mobile phone having
been not proved Gulab Chand (supra) has no
application. The confession statement with regard to
the chain, was recorded as translated to English and
was deposed in English by the I.O. The binding
precedent in Sanjay Oraon (supra) squarely applies
and vitiates the recovery for the confession of the
accused having not been recorded or spoken of in the
language in which it was made to the I.O.
Crl.Appeal No.1213 of 2019
25. The purchase of MO1 knife is spoken of by
the shop owner and the I.O too identifies it only in
re-examination, but the recovery from the scene of
occurrence has not been established; casting a doubt
on the seizure as also the purchase having been made
by the accused. The scientific evidence also does not
help the prosecution case. As was noticed, the FSL
report was not marked and the finger-prints taken from
the accused were not brought out in evidence. The
mobile details do not bring out any circumstance and
there is not even proper identification or proof of
recovery of the mobile of the deceased from Telangana.
26. The last seen theory in the facts of this
case is not very relevant. The Hotel in which the
murder occurred is open to all, on all hours, as is
seen from the evidence of its own employees who speak
of the accused having exited and entered the Hotel at
midnight without any assistance rendered by the
employees. The discrepancy in the time on the FIS also
assumes significance in the context of the time of
death, at least the probable time within which death
Crl.Appeal No.1213 of 2019
might have occurred, not having been elicited from or
stated by the Doctor who conducted the post mortem
examination. If the FIS was at 15.48 as is seen from
the FIS, in Court, then the death could have been any
time after the accused left the premises. There is no
single circumstance proved to incriminate the accused,
not to speak of missing links as held in Hanuman
Govind Nargundkar, Ashish Batham, and
NavaneethaKrishnan (all supra). On the contrary there
is a probable version, as spoken of by the accused, as
to he having been arrested from Palghat and taken to
Telangana to create evidence under Section 27 of the
Evidence Act. It is the version of the accused that
after he came out of the MCH, he was called by PW7 and
informed of the murder, upon which he went home to
Palghat; quite a possible explanation. Even if the
accused had absconded to Telangana, it would have been
for fear of being made an accused, since the body was
found in his room. In any event the fact of the
accused having absconded, by itself cannot be an
incriminating circumstance as held in Yousuf S.K
Crl.Appeal No.1213 of 2019
(supra), but can only form one of the links in the
chain of circumstances. As held in Rajkumar Singh
(supra) the prosecution has to traverse the distance
from 'may be true' to 'must be true' to bring home a
conviction; but in this case even an opinion of 'may
be true' does not arise from the circumstances proved
in trial.
27. The learned counsel for the petitioner has
relied on Reena Hazarika (supra) to contend that
certain incriminating circumstances were not put to
the accused in the 313 questioning. The incriminating
circumstances, not put to the accused, so projected
are :- i) the exact time of entry and exit of the
accused and deceased into the Hotel, as seen from the
video footage, ii) the time when the knife was
purchased, which becomes relevant in the context of
the CC TV camera footage, ii) The factum of
collection of blood, nail and hair samples by Ext.P24,
iv) the evidence of the finger print expert, PW18, v)
the evidence of PW19 with regard to Ext.P21 and
Ext.P22 mahazars; and vi) the FSL report. We see from
Crl.Appeal No.1213 of 2019
the 313 questioning that the contentions raised are
correct and the learned trial Judge ought to have been
more carefull. As for the contention raised in appeal,
it has to go to the benefit of the accused. Moreover,
these aspects have been discussed on merits and found
to be not incriminating the accused. The prosecution
has failed miserably, by reason of the levity shown
both in the investigation and more in the conduct of
the trial, where even the materials collected in the
course of investigation were not produced before
Court. We have no other option than to confer the
benefit of doubt on the accused.
We allow the appeal and acquit the accused.
The accused shall be released forthwith if not wanted
in any other case.
Sd/-
K.VINOD CHANDRAN, JUDGE
sd/-
C.JAYACHANDRAN, JUDGE.
Jma/lgk/sp
