Kerala High Court
M.P.Vinod vs State Of Kerala on 28 June, 2024
Crl. Appeal No.1655/2006 & batch :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
CRL.A NO. 1655 OF 2006
AGAINST THE JUDGMENT DATED 18.08.2006 IN SC NO.324 OF 2002 OF
ADDITIONAL SESSIONS COURT, KOZHIKODE
APPELLANT/ACCUSED NO.3:
MAMUNI JAYAN @ JAYAKUMAR
S/O.NARAYANAN, MAMUNI HOUSE,, VELLUR AMSOM, PAYYANUR,
KANNUR DISTRICT.
BY ADVS.
C.G.PREETHA
M.PRAVEESH
C.S.SUNIL
Arun Krishna Dhan
T.K.SANDEEP(K/1076/2003)
ARJUN SREEDHAR(K/393/2008)
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
SRI. VIPIN NARAYAN, SR. PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2024, ALONG
WITH CRL.A.1688 & 1930 of 2006, THE COURT ON 28.06.2024 DELIVERED THE
FOLLOWING:
Crl. Appeal No.1655/2006 & batch :2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
CRL.A NO. 1688 OF 2006
AGAINST THE JUDGMENT DATED 18.08.2006 IN SC NO.324 OF 2002 OF
ADDITIONAL SESSIONS COURT, KOZHIKODE
APPELLANT/ACCUSED NO.2:
M.P.VINOD @ VINU, S/O. AMBU,
MANHAPARAMBIL HOUSE, AGED 35 YEARS,, MAVISSERY,
PAYYANNUR,, KANNUR DISTRICT.
BY ADVS.
SRI. JAYAKUMAR NAMBOODIRI T.V.
P.SHEENA RAJAN(K/292/2010)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,
ERNAKULAM.
BY ADV. SRI. SANAL P. RAJ, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2024, ALONG
WITH CRL.A.1655/2006 AND CONNECTED CASES, THE COURT ON 28.06.2024
DELIVERED THE FOLLOWING:
Crl. Appeal No.1655/2006 & batch :3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
FRIDAY, THE 28TH DAY OF JUNE 2024 / 7TH ASHADHA, 1946
CRL.A NO. 1930 OF 2006
AGAINST THE UDGMENT DATED 18.08.2006 IN SC NO.324 OF 2002 OF
ADDITIONAL SESSIONS COURT, KOZHIKODE
APPELLANT/ACCUSED NO.1:
V.P.VIJAYAN, S/O. KUNHIKANNAN,
VADAKKEPURAYIL HOUSE, RAMANTHALI AMSOM & DESOM,,
KOOVAPURAM, PAYYANNUR, KANNUR DISTRICT.
BY ADVS.
C.G.PREETHA
ARUN KRISHNA DHAN
T.K.SANDEEP(K/1076/2003)
ARJUN SREEDHAR(K/393/2008)
RESPONDENT/COMPLAINANT:
STATE OF KERALA, REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.
BY ADV. SRI. SANAL P. RAJ, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2024, ALONG
WITH CRL.A.1655/2006 AND CONNECTED CASES, THE COURT ON 28.06.2024
DELIVERED THE FOLLOWING:
Crl. Appeal No.1655/2006 & batch :4:
'CR'
JOHNSON JOHN, J.
---------------------------------------------------------
Crl. Appeal Nos. 1655, 1688 & 1930 of 2006
--------------------------------------------------------
Dated this the 28th day of June, 2024.
JUDGMENT
The appellants are accused Nos. 1 to 3 in S.C. No. 324 of
2002 on the file of the IInd Additional Sessions Judge, Kozhikode
and they are challenging the conviction and sentence imposed on
them for the offence under Section 392 IPC.
2. The prosecution case is that PW1 and PW11 exchanged
their vehicles and in that transaction, PW1 had to pay Rs.1,87,000/-
to PW11. But, subsequently, the vehicle was seized by the financier
at Madras and then it was agreed between PWs 1 and 11 that PW1
will pay Rs.1,87,000/- to the financier and that the balance amount
due to the financier will be paid by PW11 and accordingly, they
decided to meet the financier at Madras for releasing the vehicle.
The 5th accused was the broker between PWs 1 and 11 in
connection with the vehicle transaction and when he came to know
about the journey, he entered into a criminal conspiracy with
accused Nos. 1 to 4 to rob the money by committing dacoity. On
13.11.1998. PW1, PW15, accused No.5 and the deceased
Kunhimoosa, who is the brother-in-law of PW1, boarded train No.
6602 Mangalore- Madras Mail from Payyannur Railway Station and
the deceased was in possession of the bag containing Rs.2,20,000/-
and accused Nos. 1 to 4 also unauthorisedly boarded S-V
compartment of the said train in which Kunhimoosa and others
travelled. When the train reached Parappanangadi, the 3 rd accused
snatched the bag containing money from Kunhimoosa. But,
Kunhimoosa caught the 3rd accused with the bag and then accused
Nos. 1, 2 and 4 forcibly released the 3 rd accused from the hands of
Kunhimoosa and thereafter, accused Nos. 1 to 4 jumped to the
platform with the bag containing money and then Kunhimoosa also
jumped into the platform and there occurred a scuffle for the bag in
the platform and accused Nos. 1 to 4, after getting possession of
the bag, pushed Kunhimoosa towards the running train and he was
run over by the train and died instantaneously. Accused Nos. 1 to 5
are thereby alleged to have committed the offences under Sections
395, 302, 201, 139, 120B and 34 IPC. Additionally, the 5 th accused
is alleged to have committed the offences under Sections 177, and
203 of IPC.
3. In the trial court, the accused persons pleaded not guilty
to the charges and accordingly, PWs 1 to 34 were examined and
Exhibits P1 to P39 and MOs1 to 18 were marked from the side of
the prosecution and from the side of the defence, Exhibits D1 to
D10 were marked.
4. After hearing both sides and considering the oral and
documentary evidence on record, the learned Additional Sessions
Judge, by the impugned judgment dated 18.08.2006, convicted and
sentenced accused Nos. 1 to 3 to undergo rigorous imprisonment
for 10 years and to pay a fine of Rs.15,000/- each and in default of
payment of fine, to undergo rigorous imprisonment for one year
each. Accused Nos. 4 and 5 are acquitted of all the charges and
accused Nos. 1 to 3 are acquitted of all other offences charged
against them.
5. Heard Sri. T.K. Sandeep, the learned counsel for the
appellants/accused Nos. 1 and 3, Sri. T.V. Jayakumar Namboodiri,
the learned counsel for the appellant/second accused and Sri. Sanal
P. Raj, learned Public Prosecutor and perused the records.
6. The point that arises for consideration is whether the
conviction entered and the sentence passed against the
accused/appellants are legally sustainable.
7. The learned counsel appearing for the appellants argued
that the evidence adduced from the side of the prosecution is of a
circumstantial nature and the prosecution has not succeeded in fully
establishing the circumstances from which the conclusion of guilt is
to be drawn. It is argued that apart from the hearsay evidence of
PW1, there is absolutely no proof, either documentary or oral, to
show that the deceased carried Rs.2,20,000/- in the bag and that
the evidence of PW7, the only witness who happened to see the
incident, would show that the 1 st accused was not there at the
place of occurrence and he was not among the persons who jumped
from the train to the platform. It is argued that the evidence of the
Investigating Officer regarding the alleged recovery of MO7 bag
does not satisfy the conditions necessary for the applicability of
Section 27 of the Indian Evidence Act and therefore, the accused
are entitled for the benefit of reasonable doubt.
8. The learned Public Prosecutor argued that the evidence of
PWs 1, 7, 9, 15 and 27 and the recovery of MO7 bag on the basis of
the information received from the third accused taken cumulatively
will form a chain so complete and incapable of explanation of any
other hypothesis than that of the guilt of accused Nos. 1 to 3 and
that there is no reason for the said witnesses to falsely depose
against the accused in a serious case of this nature and therefore,
there is no reason to interfere with the impugned judgment.
9. The evidence of PW1 in chief examination shows that
along with his brother-in-law, Kunhimoosa, and PW15, Abdul
Latheef, he reached Payyoli Railway Station on 13.11.1998. and at
that time, PW11 was not there and instead, the 5 th accused was
there. According to PW1, the 5th accused informed them that PW11
will reach the station before the departure of the train and
subsequently, PW11 reached the Railway Station at about 2.10.
p.m. and there occurred some verbal altercations between PW11
and the deceased Kunhimoosa regarding the balance amount to be
paid by PW11 and subsequently, after pledging the RC book of the
vehicle, PW11 handed over Rs.17,000/- and PW1 entrusted the said
amount to his brother-in-law Kunhimoosa.
10. According to PW1, his brother-in-law, Kunhimoosa, kept
that amount in the pocket of his pants. According to PW1,
Kunhimoosa, was in possession of the bag containing the money
and when the train departed Kozhikode, Kunhimoosa was occupying
birth No. 67 and 5th accused was occupying birth No.66 and he
was occupying birth No.26. PW1 stated that subsequently while the
train was moving from some other station, he woke up on hearing
noise and someone uttering the word 'thief' and he suspected that
the sound was that of his brother-in-law, Kunhimoosa. When PW1,
along with PW15 Abdul Latheef, reached near the berth of
Kunhimoosa, they could not see Kunhimoosa or his bag and
subsequently, the 5th accused and PW1 pulled the chain to stop the
train.
11. The evidence of PW1 further shows that along with PW15
and the 5th accused, they proceeded towards the platform through
the railway track and then they saw the dead body of Kunhimoosa
on the railway track. It is pertinent to note that PW1 has no case
that he saw any of the accused persons snatching the bag from the
possession of the deceased Kunhimoosa or anyone jumping from
the train to the platform.
12. In cross-examination, PW1 deposed as follows:
"ക ഞ മ സയ ട bag-ൽ എത പണ ഉണ യ ര ന
എന ഞ ൻ ന ര ട കണ ല. ക എത ര പ ഉണ എന
പറഞ ര ന ല. 1 1/2 ലക ര പയ$ DD എ $ണ
എന ഞ ൻ ക ഞ മ സനയ പറഞ ര ന ."
The above evidence of PW1 in cross-examination clearly shows that
he has no direct knowledge regarding the money inside the bag in
the possession of Kunhimoosa and no other witness examined from
the side of the prosecution has a case that he saw Kunhimoosa
keeping money inside the bag or that he has direct knowledge
regarding the money inside the bag of Kunhimoosa. When the
prosecution alleges that Kunhimoosa was in possession of
Rs.2,20,000/- in his bag, the prosecution ought to have adduced
reliable evidence to prove the said fact.
13. The evidence of PW7 shows that he was a student of law
and on the date of occurrence, he was returning from the Law
College at Thalassery, in Madras Mail and he alighted from the train
at Parappanangadi Railway Station at about 11 O'clock in the night.
According to PW7, when he reached near the tea stall at the
Railway platform, he looked back on hearing a sound and saw one
person jumping from the train to the platform followed by 3 others
and he could not see the incident clearly as it was dark. According
to PW7, the persons who jumped from the train are seen running
towards south and for informing the station master about the
incident, he proceeded towards the room of the station master and
then he saw a railway staff coming with a lantern and another
person running towards the place of occurrence through the back of
the said railway staff. PW7 identified the first accused before the
court as the person whom he saw running towards the place of
occurrence while he was proceeding towards the station master's
room.
14. The evidence of PW7 in cross-examination shows that he
heard the sound when he reached about 30 feet near to the tea
stall, and the place of occurrence is about 150 feet towards south.
According to PW7, the office of the station master is in the middle of
the platform and the tea stall is about 100 feet south from the office
of the station master. In another part of the cross-examination,
PW7 stated that he saw the railway staff with the lantern near the
tea stall and he saw the person coming running from a distance of
50 feet north. PW7 further admitted that the said person was not
running at high speed and that he was only running slowly towards
the place of incident.
15. A perusal of Exhibit P39, site plan, and the evidence of
PW7 would clearly show that there is a distance of about 150 feet
from the place of occurrence and the person who was seen running
from north at a distance of about 50 feet from the tea stall and it is
in evidence that PW7 proceeded towards the office of the station
master immediately after the occurrence and in that circumstance,
what emerges from the evidence of PW7 is that the first accused
was not among the persons who jumped out of the train to the
platform and ran towards south, as it is not possible for a person
who ran towards south from the place of occurrence, which is at a
distance of 150 feet from the tea stall in the platform to reach a
place at a distance of 50 feet north from the tea stall and in that
circumstance, I find force in the argument of the learned counsel for
the appellants that even if the evidence of PW7 regarding the
identity of accused No. 1 as the person whom he saw at a distance
of 50 feet north from the tea stall in the platform is accepted as
reliable, the same will, in no way, establish the complicity of the
first accused in the alleged crime.
16. PW9 deposed that he was an autorickshaw driver and on
13.11.1998, while he was returning from Tanoor and reached half
kilometer away from Parappanangadi, 4 persons had shown signal
to stop the autorickshaw and the said persons, after entering his
autorickshaw, asked him to take them to the town and after
reaching the town and when it was found that no taxi was available
there, they asked him to take them to Chemmad. According to
PW9, on enquiry, the said persons told him that a child was missing
from the train and that the train left while they were in search of
the child and therefore, they wanted to go to Shornur to catch the
train. PW9 deposed that there was no taxi at Chemmad and the
persons who travelled in his autorickshaw asked him to take them
to Kakkad and when they reached Kakkad, they saw a KSRTC bus
coming from the opposite direction and the persons who travelled in
the autorickshaw had shown signal to stop the bus.
17. According to PW9, one among the passengers asked him
the fare and he heard others calling him the name 'Vinu'. PW9
stated that the said Vinu left a 100 rupee note in his autorickshaw
and ran towards the bus and he also heard others calling another
passenger by name 'Vijayan' and PW9 identified the said Vinu and
Vijayan as accused Nos. 1 and 2 in this case. According to PW9,
when the passengers entered his autorickshaw, he turned back to
see whether all of them could be accommodated in the back seat
and then he was able to recognize the face of accused Nos. 1 and 2
in the beam of the top light inside the autorickshaw.
18. The learned counsel appearing for the appellants argued
that there is nothing in the evidence of PW9 to show the distance
from Parappanangadi Railway Station to the place from where the
above said 4 persons entered his autorickshaw and the evidence of
PW9 only shows that he was returning from Tanoor on 13.11.1998
and when he reached half kilometer south from Parappanangadi, 4
persons boarded his autorickshaw for proceeding to town and there
was no attempt on the part of the prosecution to establish that the
said place at a distance of half km. south from Parappanangadi
town, is proximate to the place of occurrence in this case.
19. I find force in the argument of the learned counsel for the
appellants that the evidence of PW9 that he identified the face of
the persons who entered the back seat of his autorickshaw by just a
glance to the back seat while riding the autorickshaw, does not
inspire confidence. In cross-examination, PW9 admitted that he is
not the owner of the said autorickshaw and that he lost his licence
and badge and after 13.11.1998, he had no occasion to drive this
autorickshaw.
20. PW15, Abdul Latheef, also deposed in tune with the
deposition of PW1 regarding the occurrence. According to PW15,
before the departure of the train from Payyannur Railway Station,
he saw the 5th accused Bhaskaran along with accused Nos. 1 to 4 in
the platform and he also stated that accused Nos. 1 to 4 were
sitting on a bench in the platform. The evidence of PW15 shows that
the accused are known to him previously. However, in cross-
examination, PW15 admitted that when the police questioned him
one or two days after the occurrence, he has not told the police that
he saw the 5th accused talking to accused Nos. 1 to 4 and he would
say that he informed the said fact to the police only when he was
questioned two or three years after the occurrence. PW15 cannot
remember whether he told the police that Kunhimoosa was in
possession of a bag when he was first questioned by the police or
when he was subsequently questioned by the Railway police and he
has nothing to say if the same is not seen recorded in his statement
to the police.
21. PW27 is another witness examined from the side of the
prosecution to prove the presence of accused persons on the date
of occurrence at the platform of Payyannur Railway Station.
According to PW27, on the date of occurrence, he saw the deceased
Kunhimoosa at the platform of Payyannur Railway Station in
between 4 and 4.30 p.m. PW27 also deposed that he saw accused
Jayan walking through the Railway platform towards Kasargod side
and then Jayan told him that he is going to Kannur. In cross-
examination, PW27 admitted that in this case, the police questioned
him more than 3 times; but, he cannot remember whether he told
the name of the accused Vijayan to the police. The evidence of
PW27 in cross-examination shows that on the date of occurrence,
he reached the platform of Payyannur Railway Station in search of
illicit liquor and he also admitted that he is not in a position to say
whether the persons whom he identified in chief examination came
there in search of illicit liquor.
22. PW27 also deposed that when he met the 4 th accused
Ramachandran at Payyannur bus stand, after two days of the
death of Kunhimoosa, the said Ramachandran told him that he was
also involved in the incident which resulted in the death of Moosa
and that while Moosa was running with the bag after alighting
from the train, others pushed him and thereby, he fell under the
train. It is pertinent to note that the trial court has already
acquitted the 4th accused. It is well settled that in order to accept
extra-judicial confession, it must be voluntary and must inspire
confidence. The confession of one accused cannot be used as
evidence against the co-accused so as to form the basis of a
conviction and only when the rest of the evidence is sufficient for a
conviction, this confessoin could be used to tilt the balance againt
the co- accused.
23. As noticed earlier, the trial court has not accepted the
evidence of PW27 regarding the extra-judicial confession of the 4 th
accused against the 4th accused. The value of the evidence as to
the confession depends on the reliability of the witness who gives
the evidence and considering the conduct and antecedents of PW27
as revealed from his evidence, this Court finds that he is not a
reliable witness. Further, extra-judicial confession is a weak piece of
evidence and it is the duty of the court to ensure that the same
inspires confidence and is corroborated by other prosecution
evidence. In this case, the evidence of PW27 regarding the extra-
judicial confession of the 4th accused is surrounded by suspicious
circumstances and therefore, the same lacks credibility.
24. To prove the offence of robbery under Section 392 IPC,
the prosecution has to adduce reliable evidence regarding the
subject matter of the crime. As noticed earlier, in this case, the
prosecution alleges that there was an amount of Rs.2,20,000/- in
the bag of the deceased Kunhimoosa. But, the prosecution has not
examined any witness who is having direct knowledge regarding the
same. The evidence of PW1 only shows that he handed over
Rs.17,000/- received from PW11 to the deceased Kunhimoosa and
that the deceased kept the said money in the pocket of his pants.
None of the prosecution witnesses has a case that he saw
Kunhimoosa or any other person keeping money in the bag held by
Kunhimoosa.
25. The evidence of PW26 and Exhibit P30, inquest report,
shows that Rs.21,781.50 was recovered from the pant pocket of the
deceased at the time of inquest. In a case based on circumstantial
evidence, the prosecution has a duty to establish the primary or
basic facts from which the inference of guilt is to be drawn. In
Padala Veera Reddy Vs. State of A.P. and Ors. (AIR 1990 SC
79), the Hon'ble Supreme Court has laid down that when a case rests
upon circumstantial evidence, such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought
to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within
all human probability the crime was committed by the accused
and none else; and
(4) the circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused and such
evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence."
26. The Hon'ble Supreme Court of India in "Hanumant
Govind Nargundkar and Anr. Vs. State of Madhya Pradesh",
reported in AIR 1952 SC 343, has observed thus:-
"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 be in the 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."
27. In Mulakh Raj v. Satish Kumar (1992) 3 S.C.C. 43, the
Hon'ble Supreme Court held as follows:-
"Undoubtedly this case hinges upon circumstantial evidence. It is
trite to reiterate that in a case founded on circumstantial evidence,
the prosecution must prove all the circumstances connecting
unbroken chain of links leading to only one inference that the
accused committed the crime. If any other reasonable hypothesis
of the innocence of the accused can be inferred from the proved
circumstances, the accused would be entitled to the benefit. What
is required is not the quantitative but qualitative, reliable and
probable circumstances to complete the chain connecting the
accused with the crime. If the conduct of the accused in relation to
the crime comes into question the previous and subsequent
conduct are also relevant facts. Therefore, the absence of ordinary
course of conduct of the accused and human probabilities of the
case also would be relevant. The Court must weigh the evidence of
the cumulative effect of the circumstances and if it reaches the
conclusion that the accused committed the crime, the charge must
be held proved and the conviction and the sentence would follow."
28. It is well settled that in a case based on circumstantial
evidence, the prosecution has to establish fully all the links of the
chain which should be consistent only with the hypothesis of the
guilt of the accused and those circumstances should be of
conclusive nature and tendency unerringly pointing towards the
guilt of the accused and that there is a long distance between 'may
be true' and 'must be true'. In this case, it cannot be held that the
circumstantial evidence relied by the prosecution is sufficient to
form a chain of evidence complete and consistent only with the
hypothesis of the guilt of the accused.
29. In this case, the prosecution is also relying on the
recovery of the material objects by the Investigating Officer on the
basis of the disclosure statement of the third accused. PW33
deposed that he arrested the third accused on 31.08.1999 and on
the basis of the information received from the 3 rd accused that he
has given Rs.17,000/- to one Ashokan of Palazhi house, who is
conducting a kury and if he is taken to that place, he will point out
the said Ashokan and as led by the accused, the witness proceeded
to the house of Palazhi Ashokan and the said Ashokan handed over
Rs.17,000/- and the same was seized as per Exhibit P23 mahazar.
According to PW33, on the basis of the disclosure statement of the
third accused that the bag which he received is kept in his house
and that he will take out the same, if he is taken there and as led
by the 3rd accused, PW33 reached the house of the 3rd accused and
the 3rd accused took out MO7 bag and handed over the same to
PW33. According to PW33, he seized MO7 bag as per Exhibit P25
mahazar.
30. The learned counsel for the appellants pointed out that
the alleged occurrence was on 13.11.1998 and the alleged recovery
was effected on 16.09.1999. It is pertinent to note that PW33 has
admitted in cross examination that he questioned the 3 rd accused
and recorded the statement on 31.08.1999. But, there was no
explanation for the delay in effecting the recovery till 16.09.1999.
PW32, Ashokan, deposed that after the death of Kunhimoosa, the
3rd accused has given him Rs. 20,000/- and subsequently,
Rs.3000/- was returned to the 3rd accused and the remaining
Rs.17,000/- was remitted in the chitty. But, the evidence of PW32
in cross-examination shows that he paid the amount remitted by
the 3rd accused to the subscribers who bid for the chitty. He also
admitted that he do not know the date of death of Kunhimoosa and
therefore, he cannot say whether the 3 rd accused paid the amount
to him before or after the death of Kunhimoosa.
31. The learned counsel for the appellants pointed out that
the evidence of PW1 would show that the colour of the bag held by
the deceased was military green and the evidence of PW1 in cross-
examination would show that the colour of the front side of MO7
bag is blue. PW1 also admitted in cross-examination that he cannot
say whether it was 3 months after the occurrence or 3 years after
the occurrence, he told the police about the bag.
32. The evidence of PW33 would show that MO7 bag was
produced before the court only on 20.12.1999 and Exhibit P25,
seizure mahazar, relating to MO7 reached the court only on
18.12.1999 and no explanation is forthcoming regarding the delay
in this regard. As noticed earlier, the prosecution has not adduced
any reliable evidence as to whether the deceased had kept any
money in his bag. It is not possible to draw any inference against
an accused merely on the basis of the recovery of a material object
under Section 27 of the Indian Evidence Act, unless the prosecution
establishes a close link between the material object and its
connection with the alleged crime.
33. Therefore, on a careful re-appreciation of the entire
evidence, this Court finds that the prosecution has not succeeded in
establishing the foundational facts and adducing reliable evidence in
relation to the chain of circumstances to prove the guilt of the
accused and therefore, the impugned judgment is liable to be set
aside and the appeals are to be allowed.
In the result, these appeals are allowed and the conviction
and sentence imposed on the appellants/accused Nos. 1 to 3 in S.C.
No. 324 of 2002 on the file of the II Additional Sessions Judge,
Kozhikode is set aside and they are acquitted. Their bail bond shall
stand cancelled and they are set at liberty. Interlocutory
applications, if any pending, shall stand closed.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
