Kerala High Court

Nazeer vs State Of Kerala on 3 October, 2024

Author: Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

    `Crl.A. No.485 of 2019                      :1:                  2024:KER:72744




                    IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                         PRESENT
             THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
                                            &
                         THE HONOURABLE MR. JUSTICE G.GIRISH
      THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
                               CRL.A NO. 485 OF 2019


 AGAINST THE        JUDGMENT IN SC NO.375 OF 2011 OF SPECIAL JUDGE FOR THE
      TRIAL OF OFFENCES AGAINST WOMEN AND CHILDREN, THALASSERY.
APPELLANT/ACCUSED:


                      NAZEER, S/o.HABEEB KHAN, C.NO.928/17,
                      CENTRAL PRISON AND CORRECTIONAL HOME,
                      KANNUR - 670004.


                      ADV. PADMALAYAN. P.P.


RESPONDENT/COMPLAINANT:


                       STATE OF KERALA




                      BY SRI.ALEX M.THOMBRA, SR.PUBLIC PROSECUTOR


             THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
    03.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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                                                                          "CR"

                                JUDGMENT

Raja Vijayaraghavan. J.

The appellant in this case, Sri. Nazeer, a fish vendor, was arrayed as the

accused in S.C.No.375 of 2011 on the file of the Special Judge for the Trial of

Offences Against Women and Children (Additional Sessions Judge-I), Thalassery.

He has been convicted under Sections 449, 392, and 302 of the IPC for

murdering for gain, his neighbour, a 65-year-old spinster. By judgment dated

29.11.2017, the appellant was found guilty and sentenced to undergo

imprisonment for life and to pay a fine of Rs.1 lakh under Section 302 of the IPC

and in default, to undergo simple imprisonment for one year; to undergo

rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lakh

under Section 392 of the IPC and in default, to undergo simple imprisonment for

one year; to undergo rigorous imprisonment for seven years and to pay a fine of

Rs.75,000/- under Section 449 of the IPC and in default, to undergo simple

imprisonment for six months.

Background Facts:

2. The deceased was residing alone in the Taravad house, numbered

VII/143, situated in Eranholy Panchayat. Ext.P15, the scene mahazar, provides a `Crl.A. No.485 of 2019 :3: 2024:KER:72744

picture of the location and surroundings of the home of the deceased. The

mahazar reveals that the house faces east, with a courtyard on the eastern side.

A pathway, measuring 122 cm in width and 14 meters in length, extends

eastward from the house, leading to a small water channel. Approximately 12

meters to the west, beyond the western boundary wall, is the residence of

Srinivasan, a close relative of the deceased. About 50 meters to the south lies

the house of Kunjalu, the mother-in-law of the appellant. The house of Pramod

(PW1), the nephew of the deceased, is also nearby.

3. For 15 years prior to her death, it was the practice of the deceased

to live in her house during the daytime and spend the night in the house of

Pramod (PW1), the son of her sister, located nearby. Pramod, Jisha P. (PW2), and

PW1's mother would keep her company. As usual, on the morning of 31.10.2010,

at approximately 7:00 a.m., the deceased left PW1's residence.

4. The prosecution alleges that between 11:30 a.m. and 12:00 p.m.

on the same day, K.K. Sasi (PW6), a newly elected member of the VII Ward of

Eranholy Grama Panchayat, along with Babu (CW10), visited Nalini's house to

invite her to the swearing-in ceremony scheduled for the following day. Despite

calling Nalini's name repeatedly, there was no response, though the front door

was lying open. They then proceeded to the house of PW1, located nearby, and

informed him that Nalini had not answered.

`Crl.A. No.485 of 2019 :4: 2024:KER:72744

5. At around 12:30 p.m., PW1 went to Nalini's house to check on her.

To his shock, he discovered Nalini lying face down on the floor. Immediately, he

called Sasi and Babu by phone. He also alerted his relatives, including his wife

Jisha, Kamala (PW20), and Premaja, who all rushed to Nalini's house. They found

that her clothes were soaked with urine. As Nalini had been suffering from

diabetes and high blood pressure, they initially believed she had fallen

unconscious due to her medical conditions. They lifted her, changed her clothes,

and requested PW6 to summon a doctor.

6. While trying to remove her blouse, they noticed that Nalini's gold

chain was missing. Within ten minutes, Dr. Viswanathan (PW16), the Medical

Officer, "Sreyas Hospital", arrived at the scene. After examining Nalini, he opined

that it was likely that she had died four hours before his examination. The

relatives also noticed that a bangle weighing approximately one sovereign and

Rs.2,000/- in cash were missing.

Registration of Crime and Investigation:

7. The police were promptly notified, and based on the information

provided by PW1, Ext.P19 FIR was registered as Crime No.1253 of 2010 at

Tellicherry Police Station by PW27, the Sub Inspector of Police, for offences under

Sections 302 and 392 of the IPC.

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8. The investigation was taken over by PW28, the Circle Inspector of

Police, Thalassery. He arrived at the scene, conducted the inquest, and prepared

Ext.P2 inquest report. Trace evidence was collected from the fingers and neck

using cellophane tape. The clothes found at the scene were seized and produced

before the court as Material Objects MO's 5 to 15. The body was then sent for

postmortem, which was conducted by PW15. During the examination, PW15

noted a pressure abrasion around the neck, except for a discontinuity of 7cm on

the left side of the back. Additionally, pieces of plantain mixed with a brownish

fluid were found in the stomach. The doctor concluded that the cause of death

was ligature strangulation. Ext.P15, the scene mahazar, was prepared on

01.11.2010.

9. On 02.11.2010, at 11 a.m., the appellant was arrested as per

Ext.P20 arrest memo. At the time of the appellant's arrest, MO16 mobile phone

and a sum of Rs.3,700/- were seized from his possession. Upon interrogation,

the appellant allegedly disclosed that the gold ornaments stolen by him were

sold to Sarada Jewellery situated on the main road in Thalassery. Based on this

disclosure, the appellant led the police to Sarada Jewellery, where he allegedly

pointed out Rajagopalan (PW7), an employee of the jewellery store. PW7 is said

to have produced a gold chain and bangle sold by the appellant on 31.10.2010.

PW7 further explained that the gold had been annealed to remove dirt, for which `Crl.A. No.485 of 2019 :6: 2024:KER:72744

purpose the chain was broken into two pieces and the bangle into three. The

annealing process caused the gold to turn black. A locket weighing approximately

1.250 grams was also seized from the jewellery store, allegedly sold by the

appellant. Ext.P7 is the mahazar prepared by the investigating officer at the time

of the gold's seizure, and Ext.P7(a) is the relevant portion of the disclosure

statement. PW7 stated that the gold was purchased for Rs.35,600/-, which was

handed over to the appellant.

10. The appellant further confessed that the shawl used for strangling

the deceased had been concealed at his house. Acting on this disclosure, the

appellant was taken to his residence, bearing No. V/412 in Kudakalam Laksham

Veedu Colony, where MO18 shawl was seized from under the sofa cushion in the

main room, as per Ext. P5 mahazar.

11. The prosecution further alleges that upon interrogation regarding

how the appellant had used the money obtained from selling the gold

ornaments, the appellant disclosed that Rs.27,000/-, being part of the sum

received from Sarada Jewellery, had been entrusted to his wife, Rajeena (PW24).

Based on this statement, Rs.5,500/- was seized from PW24 as per Ext. P17

mahazar. The appellant was subsequently produced before the jurisdictional

Magistrate and remanded to judicial custody.

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12. On 12.11.2010, the appellant was again taken into custody and

questioned regarding the disposal of the remaining amounts. He led the police to

PW24, Rajeena, who revealed that Rs.2,000/- had been given to Leela M.

(PW10), the landlord of the house in which they were residing in the Laksham

Veedu Colony, towards arrears of rent. This amount was seized from PW10 on

12.11.2010, as per Ext. P8 mahazar. On 13.11.2010, based on the appellant's

disclosure, Rs.5,000/- was seized from Sunil Kumar (PW11), as per Ext. P9

mahazar. On 14.11.2010, Rs.17,500/- was seized from Chandran (PW13),

allegedly handed over by PW24 to settle previous debts. In the meantime, PW26,

the Assistant Director, Biology, FSL Lab, furnished Ext.P18 report, wherein it is

mentioned that fiber found in cellophane tapes taken from the left palm, and

right palm were similar to those contained in MO18 shawl recovered from the

house of the appellant as per Ext.P5 mahazar. Upon the conclusion of the

investigation, the final report was submitted to the Judicial Magistrate of the First

Class, Thalassery.

Committal:

13. After following the procedure, the case was committed to the Court

of Session. The case was later made over to the Court of the Special Judge for

Trial and Disposal.

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The Court Charge:

14. The accused was called upon to answer the following court

charge:

The accused on 31.10.2010 watched the movements of Nalini, D/o. Kunhiraman, residing in Noonnumpurath hose at Eranholi by sitting on the ladder situated at a distance of 19 meters away from house No. 143 of Ward VII of Eranholi Panchayat, where deceased Nalini was residing with an intention to kill her and committing robbery of gold chain worn by her and the cash in her possession and when Nalini entered the house on that day at 7.05 a.m., the appellant trespassed into the house of Nalini and committed murder by strangling using a shawl around her neck in the dining room of that house. The accused is stated to have committed theft of a gold chain with locket worn by the deceased and a gold bangle kept in her purse and thereby committed the offence punishable under Sections 302, 449 and 392 of the IPC.

The evidence let in:

15. The prosecution examined PWs 1 to 28 to prove its case and

through them, Exts.P1 to P25 were exhibited and marked. Material Objects were

produced and identified as MOs 1 to 22. After the close of the prosecution

evidence, the incriminating materials were put to the accused under Section 313

of the Cr.P.C. He emphatically denied the circumstances brought out against him

and maintained his innocence. On finding that the accused could not be `Crl.A. No.485 of 2019 :9: 2024:KER:72744

acquitted under Section 232 of the Cr.P.C., he was called upon to enter his

defence. No evidence was adduced by the defence.

The Findings of the Trial Court:

16. The learned Sessions Judge, after evaluating the evidence let in,

came to the following conclusions, which were found to be convincing enough to

arrive at a finding that the accused had trespassed into the house of the

deceased and had murdered her by strangling with a shawl and that he had

robbed.

(a) The presence of the accused in and around 7.30 a.m., on 31.10.2010,

as spoken to by PW22.

(b) The deceased had died of strangulation which according to the

evidence of PW16 could have happened four hours prior to 12.30 p.m.

on 31.10.210.

deceased based on the disclosure statement given by the accused.

(d) The recovery of MO 18 shawl used for strangling the deceased based

on the disclosure statement given by the accused.



   (e)          The recovery of cash from PW11, PW10, and PW13 which was paid by
 `Crl.A. No.485 of 2019                         :10:                               2024:KER:72744

the appellant and his wife allegedly from the proceeds of the sale of

the gold ornaments.

(f) Presence of fibers from the shawl in the palms and fingers of the

deceased as is brought out from Ext.P18 report.

Submissions on behalf of the appellant:

17. Sri. Padmalayan, P.P., the learned counsel appearing for the

appellant, submitted that the appellant is totally innocent of the allegations

levelled against him. The finding of guilt was arrived at by the learned Sessions

Judge without properly appreciating the evidence. It is pointed out that the

learned Sessions Judge has erred in coming to the finding that the prosecution

has succeeded in proving all the circumstances in a conclusive manner to arrive

at the finding of guilt. According to the learned counsel, the house of PW24,

wife of the appellant was in close proximity to that of the deceased and PW22,

Sreejan, and in that view of the matter, the learned Sessions Judge ought not

have reckoned that the mere presence of the appellant near his own house

would establish his role as perpetrator of the murder. It is further submitted that

the learned Sessions Judge has erred in placing implicit reliance on the evidence

of recovery of the gold ornaments and the shawl, despite the fact that numerous

inconsistencies were brought out by the defence. Relying on the principles laid `Crl.A. No.485 of 2019 :11: 2024:KER:72744

down in Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh1 and

in Subramanya v. State of Karnataka2, it is urged that the prosecution had

failed to comply with the requirement of law, before accepting the evidence of

discovery. The absence of the authorship of concealment in the disclosure

statement, the non-recording of the exact words attributed to the accused, and

the failure to prove the contents of the Mahazar, are all highlighted by the

learned counsel to contend that the learned Sessions Judge was not justified in

placing reliance upon the circumstance of recovery of ornaments and the clothes.

It is further submitted that the report of the Scientific Expert that the fiber found

from the cellophane tape to be similar to the fibers found in the shawl would not

advance the case of the prosecution as there is no convincing evidence that the

recovery of the shawl was effected in accordance with law.

Submissions of the Public Prosecutor:

18. Sri. Alex M. Thombra, the learned Public Prosecutor submitted that

the incriminating circumstances relied on by the learned Sessions Judge

established beyond any semblance of doubt, that it was the appellant who had

committed the heinous act. The recovery evidence of the ornaments and the

clothes at the instance of the appellant was also highlighted as a strong piece of

evidence to link the appellant with the crime. Reliance is placed on the

[2022 SCC OnLine SC 1396]

[2022 SCC OnLine SC 1400] `Crl.A. No.485 of 2019 :12: 2024:KER:72744

observation in Joseph v. State of Kerala3, and in Padala Veera Reddy V.

State of Andhra Pradesh4, and it is argued that the chain of circumstances

cumulatively and unequivocally points towards the guilt of the appellant.

Our Evaluation:

19. The finding of guilt of the appellant is grounded entirely in

circumstantial evidence. Before proceeding to analyze and assess the

circumstances that have influenced the decisions of the learned Sessions Judge,

it would only be appropriate to refer to the precedents that may provide

guidance on the handling and evaluation of cases based on circumstantial

evidence. In Sharad Birdhichand Sarda v. State of Maharashtra5, a

Three-Judge Bench of the Apex Court has laid down five golden principles that

constitute the "panchsheel" in respect of a case based on circumstantial

evidence. Referring to the decision in Shivaji Sahebrao Bobade v. State of

Maharashtra6, it was opined that it is a primary principle that the accused

"must be" and not merely "may be" guilty before a court can convict and the

mental distance between "may be" and "must be" is long and divides vague

conjectures from sure conclusions. Thereafter, the Bench proceeded to lay down

that the facts so established should be consistent only with the hypothesis of the

[AIR 2000 SC 1608]

[AIR 1990 SC 79]

[(1984) 4 SCC 116]

[(1973) 2 SCC 793] `Crl.A. No.485 of 2019 :13: 2024:KER:72744

guilt of the accused, that is to say, they should not be explainable on any other

hypothesis except that the accused is guilty; that the circumstances should be of

a conclusive nature and tendency; that they should exclude every possible

hypothesis except the one to be proved; and that there must be a chain of

evidence so complete as not to leave any reasonable ground for the conclusion

consistent with the innocence of the accused and must show that in all human

probability the act must have been done by the accused. The very same

principles were reiterated in Padala Veera Reddy (supra).

20. We shall now endeavor to determine from the evidence whether

the circumstances from which the conclusion of guilt has been drawn have been

fully and conclusively proved and whether those circumstances are sufficient to

connect the appellant to the crime. It is essential that the conscience of the

Court is satisfied that the various circumstances highlighted by the prosecution in

the chain of events have been clearly established. This chain must be complete

and unbroken, ruling out any reasonable likelihood of the innocence of the

appellant. In conducting this exercise, we shall ensure not to allow suspicion to

substitute for legal proof and avoid being influenced by emotional considerations,

however compelling they may be, in place of objective evidence.

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Cause of Death:

21. There cannot be any dispute that the death of the deceased was a

case of homicide. PW16, the Medical Officer attached to the Sreyas Hospital

tendered evidence that he had examined the deceased at about 12:30 p.m. on

31.10.2010 and she was found to be dead with a strangulation mark around her

neck, with her tongue protruding outside. He had stated in his evidence that the

death would have occurred 4 hours prior to the examination of the body by him.

This assertion made by the Doctor has not been challenged. If that be the case,

death would have happened between 8:00-8:30 a.m., on 31.10.2010. PW15, the

Professor of Forensic Medicine and Police Surgeon, Medical Sciences Academy,

Pariyaram gave evidence that the cause of death of the deceased was due to

ligature strangulation. Thus we hold that the death of Nalini was a case of

homicide and that it was due to ligature strangulation.

Presence of the accused in and around the house of the deceased:

22. The first circumstance relied on by the learned Sessions Judge to

link the appellant with the murder is his alleged presence in and around the

scene of the crime on 31.10.2010. Sri. Pramod (PW1) has stated in his evidence

that Nalini left his house at 7.00 a.m. It was when PW6, the Ward Member told

him about the fact that Nalini was not responding to his call at 11:30 a.m., that `Crl.A. No.485 of 2019 :15: 2024:KER:72744

he had gone to the house of Nalini at about 12:30 p.m. to enquire and he found

Nalini lying on the floor. The prosecution has examined Mohammed Ali (PW9),

the employer of the accused to bring in evidence that the accused had come late

on 31.10.2010. PW9 stated that normally the accused comes to his shop for

work at 6:30 a.m. They go to the market to buy fish and return back at

7:30-8:00 a.m. Out of the said fish, some fish would be taken by the appellant

for the purpose of sale in his M80 Moped. He returns back at about

11:30 a.m.-12:00 p.m. (noon). Thereafter, they go to the Chomba Market to buy

fish and return back to the shop. On 30.10.2010, the appellant and the witness

had gone to the Chomba Market. On the next day, he came only at 7:30 a.m.

When asked about the delay, the appellant stated to him that he had slept off.

They went together to sell fish and returned back at 12:00 noon. The appellant

was asked to unload some furniture, near the house of the witness. He went to

Chirakkara for that purpose. At about 1:30 p.m., the accused returned back.

Thereafter, they both went to the Chomba Market to purchase fish and returned

back only at 4:00 p.m. Later in the day, he came to know about the murder of

Nalini. On the next day, the appellant came at 6:30 a.m., took the fish, and went

for sale. It was on 02.11.2010, that he came to know that the accused was

arrested. In cross-examination, he stated that the appellant had joined his shop

only about 3-4 months back. He also stated that he did not call the appellant

over the phone when he was late on 31.10.2010.

`Crl.A. No.485 of 2019 :16: 2024:KER:72744

23. The next witness who speaks about the appellant and his presence

near the scene of the crime is K. Sreejan (PW22). In his evidence, he stated that

he is an autorickshaw driver and resides on the rear side of Nalini's house. He

admitted that the deceased was his father's sister. On 31.10.2010, at about

4:45a.m., he went to distribute newspapers. At 7:30 a.m., he returned back and

as usual, walked through the field in front of the house of the deceased to reach

his home, he saw the accused coming from the opposite side. He deposed that

he took his auto and went for his usual ride. At 10:00 a.m., he came back and

had breakfast. His wife had been elected as the Panchayat President and her

swearing-in was scheduled to be held on the following day. PW6, Sasi, one Vijith

and himself went together to invite people for the swearing-in-ceremony. His

testimony as to what had transpired thereafter is in tune with what was started

by PW6. He stated that he was having previous acquaintance with the appellant,

as he is the son-in-law of Kunjalu, his neighbor. He stated that the accused had

crossed him and had gone to Nayanar Road, where his house is situated. He

stated that he was an attestor to the Scene Mahazar. In cross-examination, he

stated that the appellant uses the same public pathway and that he comes

across the appellant very often. He stated that his residence is situated about

10-15 meters away from the house of the deceased. From the above evidence, it

is apparent that the Investigating Officer had zeroed in on the involvement of

the appellant based on the information furnished by PW22.

`Crl.A. No.485 of 2019 :17: 2024:KER:72744

24. While evaluating the evidence of the above witnesses, one cannot

fail to notice that the accused had only a half hour window to commit the offence

and that is from 7:00 a.m. to 7:30 a.m. It was at 7:00 a.m. that Nalini had gone

to the Tarwad house from the home of PW1 and it was at 7:30 a.m. that PW22

had seen him walking towards Nayanar Road. This evidence is corroborated by

PW9, the employer of the accused. This evidence has to be tested with the

evidence of PW16, who examined the deceased at 12:30 p.m. He stated that the

deceased died about 4 hours prior to him examining her. If that be the case, the

death would have been at 8:30 a.m. as per the prosecution case. The

prosecution has not attempted to explain this aspect while the doctor was in the

box or through the evidence of the Forensic Surgeon who conducted the

postmortem later. It has come out in evidence that there are several houses in

the vicinity including that of PW1 and Sreenivasan. The fact that Nalini was lying

dead in her house was noticed only at 12:30 p.m. by PW1. This discrepancy in

the evidence let in by the prosecution would create some doubt in the case set

up by the prosecution. In this context, it will be relevant to advert to the

evidence of the jewellery salesman who was examined as PW7. If his evidence is

to be believed, the accused reached his showroom at 12:30 p.m. for selling the

gold robbed from the body of the deceased. This will not tally with the evidence

of PW9 as he says that the accused was sent to Chirakkara to unload the

furniture at Chirakkara and that he had returned back at 1.30 p.m. The witness `Crl.A. No.485 of 2019 :18: 2024:KER:72744

has no case that the accused had not complied with his directions as ordered.

Immediately thereafter, the accused had gone with PW9 to Chomba to purchase

fish. No investigation appears to have been carried out to ascertain the possibility

of the accused going to the jewellery shop on his way to Chirakkara to dispose of

the gold and obtain the cash from the jewellery. PW1 also stated in his evidence

that the accused had come to their residence at 11:30 a.m on the day that the

murder took place and later in the evening. His wife who was examined as PW2

also stated that the accused had come to their house after the incident. We are

of the view that the mere fact that PW22, a near relative of the deceased, had

occasion to see the appellant on his way to Nayanar road cannot in any way be

termed as an incriminating circumstance. At any rate, it cannot be said with

absolute certainty that the death of the deceased would have taken place during

the time period between 7:00 a.m and 7:30 a.m on 31.10.2010.

Recovery evidence of MO1, MO2 and MO4 Gold ornaments:

25. The next major circumstance is the recovery of MO1, MO2, and

MO4 gold ornaments from Sarada Jewellery on the strength of the disclosure

statement given by the accused. The records reveal that the appellant was

arrested on 02.11.2010 at 11:00 a.m., as per Ext. P20 arrest memo. At the time

of his arrest, MO16 mobile phone and a sum of Rs.3,700/- were seized from his

possession. Upon interrogation, the appellant is stated to have disclosed that the `Crl.A. No.485 of 2019 :19: 2024:KER:72744

gold ornaments were sold to Sarada Jewellery located on the main road in

Thalassery.

26. It is striking to note that in the disclosure statement given by the

appellant, there is no mention that the gold was sold by him. Nevertheless, the

prosecution case is that as pointed out by the appellant, he was taken to Sarada

Jewellery, and he is stated to have identified PW7, Rajagopalan, an employee of

the shop. The Mahazar reveals that the chain and the bangle had been broken

into pieces and annealed to remove dirt. The colour of the gold had changed to

black due to smoke and heat. MO4 locket, however, is in the same state and

condition.

27. PW7 stated that the jewellery shop was owned by a person named

Ramesh Kumar, who, incidentally, has not been cited as a witness. He stated that

the accused had come to the shop on 31.10.2010, at about 12:30 p.m. According

to PW7, he was working as a salesman at that time. The accused approached

him with a view to sell a bangle, chain, and locket. PW7 tested the gold to

ascertain whether it was genuine and noticed, as per his testimony, that the

bangle contained the seal of 'Sarada Jewellery,' which according to him, is the

rising sun. Since the ornaments carried the shop's seal, PW7 agreed to purchase

them. The appellant is alleged to have told PW7 that his mother was ill and

needed to be taken to the hospital in Mangalore, for which he urgently required `Crl.A. No.485 of 2019 :20: 2024:KER:72744

money. After annealing and weighing the gold ornaments, they were found to

weigh approximately 24 grams. A sum of Rs.35,000/- was handed over to the

appellant immediately, towards the price of the gold. PW7 admitted that the

appellant's address and phone number were obtained before handing over the

money. He recalled that the name of the accused was Naseer and his house

name was Rajeena Manzil. On 2.11.2010, the appellant was brought to the shop

by the police. PW7 was informed by the police that the appellant was the

murderer and was asked to hand over the gold sold by him. The chain had been

broken into two, and the bangle into three pieces. The gold was dark in colour,

as it had been entrusted to the goldsmith to work on it. PW7 identified the gold

ornaments as those handed over by the appellant on 31.10.2010. PW7 further

stated that when the police came to recover the gold, Gopinathan (CW19) and

Vasu (CW20) were present in the shop. During cross-examination, it was brought

out that PW7 was not a permanent employee of the shop and had since left his

employment. He also revealed that CW19 was not a permanent employee either.

PW7 pleaded ignorance when asked whether the shop maintained a stock

old items are brought for sale, purchase bills are usually given, as they are

required for submission to the Sales Tax authorities. PW7 again pleaded

ignorance when asked whether the purchase vouchers were stored in the

jewellery shop. On 31.10.2010, the owner, Ramesh Kumar, was not present in `Crl.A. No.485 of 2019 :21: 2024:KER:72744

the shop, and the keys had been brought by his children. PW7 admitted that

although old gold was purchased, it was normally done only when the person

was known. In the case of the accused, he was not a known person. PW7

explained that the gold was purchased because the bangle bore the seal of the

shop. However, he acknowledged that the seal was not present on the chain and

locket. He also added that the police had spoken to his employer on at least

three occasions. The pieces of the gold bangle were handed to the witness, and

he was asked to show the identification mark or seal of the shop. However, the

witness was unable to trace it. Only some unclear letters were seen imprinted.

He identified the type of bangle as "Thai Vala" and the chain as "Oraal Mathram."

PW7 further stated that before handing over the sum of Rs.35,000/-, he did not

seek concurrence from the shop owner. He confirmed that books and registers

were maintained to show the sale and purchase of gold. When the police came

to the shop, the ornaments were stored in the drawer, and in addition to him, Sri

Vasu, the owner's car driver, was present. PW7 also mentioned that the name

and address of the appellant had been written down on a piece of paper. He

stated that while money was generally not kept in the shop, on 31.10.2010, 2-3

sovereigns were sold, and the amount from that sale was handed over to the

appellant. PW7 denied the suggestion that his employer was in the habit of

purchasing stolen gold, and denied the suggestion that it was under police

pressure that he handed over the gold kept in stock to falsely implicate the `Crl.A. No.485 of 2019 :22: 2024:KER:72744

accused in the case. During re-examination, PW7 was asked whether bills were

provided to customers. He replied that bills were given only to customers who

specifically requested them, and for others, only the details of the gold were

written on a piece of paper.

28. Gopinath P.N. (PW8) is another employee of the jewellery shop,

examined by the prosecution to corroborate the claim that the appellant had sold

gold to Sarada Jewellery on 31.10.2010. He stated that the accused came to the

shop between 12:00 p.m. and 12:30 p.m. on 31.10.2010, intending to sell a

chain, locket, and bangle. On inspection, the bangle was found to have been

purchased from their shop, they decided to buy the jewellery. PW8 confirmed

that they obtained the appellant's phone number, name, and address. During

cross-examination, it was revealed that the appellant was not known to PW8

before this incident. He admitted that he had left his employment at the shop

five years earlier. PW8 stated that the shop owner visited daily and that on

31.10.2010, Babu and CW20 were absent. PW8 admitted that gold brought by

strangers was not usually purchased and that no copy of the seller's ID was

obtained. He clarified that only the owner would know where the stock registers,

purchase bills, and bill books were kept. He added that it was the owner who set

the purchase price when old gold was brought for sale. PW8 stated that the

rising sun was the seal of the shop, and when the bangle was handed over, the `Crl.A. No.485 of 2019 :23: 2024:KER:72744

seal was only feebly visible. He was unaware of whether a bill was issued for the

items purchased. Regarding 31.10.2010, PW8 admitted that although it was a

Sunday, the shop had been open. He confirmed that the shop owner, Ramesh

Kumar, was present when the police came to recover the gold on 2.11.2010, and

it was the owner who handed the gold to the Circle Inspector. PW8 denied the

suggestion of the defence that it was under police pressure that the gold,

unrelated to the crime, had been handed over to implicate the accused. He

further admitted that the jewellery shop was situated just in front of the Traffic

Police Station, approximately 25 meters away. During re-examination, PW8

reiterated that it was the owner who had handed the gold to the police on

2.11.2010. He also stated that the shop's seal was not always visible on the

ornaments. When looking through a lens, he could only discern "RR" on the

ornament in question.

29. On careful evaluation of the testimonies of both PW7 and PW8, it

becomes apparent that their specific case is that they were part-time employees

of the jewellery shop on 31.10.2010, with the owner, Ramesh Kumar, playing a

more active role in the business. Both witnesses confirmed that the accused was

not known to them prior to this transaction. They admitted to having obtained

information about the identity of the accused including his name and address.

The alleged sale occurred just hours after the murder, at a jewellery shop located `Crl.A. No.485 of 2019 :24: 2024:KER:72744

only 25 meters from a Police Station. Furthermore, their only justification for

purchasing the gold from a stranger is that there was the seal of jewellery on the

bangle, but the said repeated assertion of the witnesses were found to be untrue

when they were cross-examined. The ornaments had been cut into pieces and it

had been annealed making it dark and smoky. None of the relatives had also

stated in the earlier statements that a locket was attached to the chain. Both

PW7 and PW8 acknowledged that the shop maintained registers, vouchers, and

bills for old gold transactions. However, despite the sale of gold worth

Rs.35,000/- on a Sunday, no registers or documentation were produced by the

prosecution to support the transaction. There are also serious discrepancies

between the statements of PW7 and PW8 regarding the presence of the shop

owner on 2.11.2020. While PW8 stated that it was the owner who handed over

the gold, PW7 testified that he was the one who did so. We are of the view that

in view of the strong circumstances highlighted by the prosecution to doubt the

version of the witnesses, the absence of documentary evidence and the non

examination of the owner who had actually handed over the gold as per the

version of PW8 would make the recovery suspicious. The fact that the jewellery

shop was situated close to the Police Station, and the timing of the sale coupled

with the evidence of PW1 that the accused had been in his house at 11:30 a.m.

to sell fish and that of PW9 that the accused was with him at least till 12 noon

and then he was sent on an errand makes the version of the prosecution highly `Crl.A. No.485 of 2019 :25: 2024:KER:72744

improbable.

30. There is another reason to doubt the recovery of gold ornaments

from Sarada Jewellery. Ext.P7 is the recovery mahazar from which it can be seen

that the attestors to the mahazar are none other than PW8, another employee of

the shop and a certain P.K. Vasu, who according to PW7 and PW8, is the driver

of the Jewellery. P.K. Vasu has not been examined as a witness. In the Mahazar,

it is stated that the disclosure was made by the accused, while at the Office of

the Circle Inspector of Police on 2.11.2010. The witnesses could not have been

present when the confession statement was given by the accused. The relevant

portion of the disclosure statement, which has been marked as Exhibit P7(a),

reads as follows:

"സ്വർണമാലയും സ്വർണ വളയും തലശ്ശേരിയിലുള്ള ഒരു ജ്വല്ലറിയിൽ വിറ്റു. എൻ്റെ കൂടെ വന്നാൽ ജ്വല്ലറിയും വാങ്ങിച്ച ആളെയും ഞാൻ കാണിച്ചു തരാം."

What emerges from the evidence of the investigating officer is that the

appellant/accused stated before him while he was in custody that ornaments

have been sold and the accused is alleged to have volunteered to take the

Investigating Officer to enable him to discover the place. This statement does

not indicate or suggest that the appellant/accused indicated anything about his

involvement in the selling of the gold.

`Crl.A. No.485 of 2019 :26: 2024:KER:72744

31. In State of Rajasthan v. Bhup Singh7, the Apex Court has

observed the following as the conditions prescribed in Section 27 of the Evidence

Act, 1872 for unwrapping the cover of the ban against the admissibility of the

statement of the accused to the police (1) a fact should have been discovered in

consequence of the information received from the accused; (2) he should have

been accused of an offence; (3) he should have been in the custody of a police

officer when he supplied the information; (4) the fact so discovered should have

been deposed to by the witness. The Court observed that if these conditions are

satisfied, that part of the information given by the accused which led to such

recovery gets denuded of the wrapper of prohibition and it becomes admissible

in evidence.

32. The aspect which this Court has to consider in the present case is

whether these recoveries have been made in accordance with law and whether

they are admissible in evidence or not, and most importantly, the link with and

effect of the same vis-a-vis the commission of the crime. At this juncture, it

would be profitable to bear in mind the observations of the Apex Court in

Subramanya v. State of Karnataka (supra), wherein the Apex Court has

delineated the principles that are to be borne in mind by the Court while

confronted with the question of admissibility of recovery effected at the instance

[ (1997) 10 SCC 675] `Crl.A. No.485 of 2019 :27: 2024:KER:72744

of the accused. It was observed as follows in paragraph Nos. 77 and 78 of the

judgment:

"77. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.

78. If, it is say of the investigating officer that the appellant-accused while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes, etc. then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence, etc. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other `Crl.A. No.485 of 2019 :28: 2024:KER:72744

article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or bloodstained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter." ( emphasis supplied )

The fact that the witnesses to the doubtful recovery are the employees of the

Jewellery shop itself makes the recovery suspect.

33. In Ramanand alias Nandlal Bharti Vs. State of Uttar

Pradesh8, the principles were clarified further and it was observed as under:

"56. The requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the

2022 SCC OnLine SC 1396 `Crl.A. No.485 of 2019 :29: 2024:KER:72744

trial court may also accept the evidence. In the present case, what we have noticed from the oral evidence of the investigating officer, PW7, Yogendra Singh is that he has not proved the contents of the discovery panchnama and all that he has deposed is that as the accused expressed his willingness to point out the weapon of offence the same was discovered under a panchnama. We have minutely gone through this part of the evidence of the investigating officer and are convinced that by no stretch of imagination it could be said that the investigating officer has proved the contents of the discovery panchnama (Exh.5). There is a reason why we are laying emphasis on proving the contents of the panchnama at the end of the investigating officer, more particularly when the independent panch witnesses though examined yet have not said a word about such discovery or turned hostile and have not supported the prosecution. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place. ( emphasis supplied)

xxxxxx xxxxx xxxx xxxxx

70. Thus, in the absence of exact words, attributed to an accused person, as statement made by him being deposed by the investigating officer in his evidence, and also without proving the contents of the panchnama (Exh.5), the trial court as well as the `Crl.A. No.485 of 2019 :30: 2024:KER:72744

High Court was not justified in placing reliance upon the circumstance of discovery of weapon

71. If it is the case of the prosecution that the PW2, Chhatarpal Raidas, s/o Rameshwar Raidas had acted as one of the panch witnesses to the drawing of the discovery panchnama, then why the PW2, Chhatarpal Raidas in his oral evidence has not said a word about he having acted as a panch witness and the discovery of the weapon of the offence and blood stained clothes being made in his presence. The fact that he is absolutely silent in his oral evidence on the aforesaid itself casts a doubt on the very credibility of the two police witnesses i.e. PW6 and PW7 respectively."

34. In the case on hand, when the Investigating Officer was examined,

he merely stated that the accused while in custody furnished a statement and

nothing more. No witnesses were available at the time, when the alleged

disclosure was made by the appellant. The Investigating Officer has also not

mentioned that he had procured the presence of independent witnesses of the

locality to witness the search. As held by the Apex Court, in order to enable the

Court to safely rely upon the evidence of the investigating officer, it is necessary

that the exact words attributed to an accused, as statement made by him, be

brought on record and, for this purpose the investigating officer is obliged to

depose in his evidence the exact statement and not by merely saying that a

mahazar was drawn up as the accused was willing to point out the place where `Crl.A. No.485 of 2019 :31: 2024:KER:72744

the jewellery was sold. Thus, in the absence of exact words, attributed to the

appellant, as statement made by him being deposed by the investigating officer

in his evidence, and also without proving the contents of the panchnama

(Ext.P5), by examining independent witnesses no reliance could be placed on the

circumstance of discovery of gold.

35. Another circumstance is with regard to the identification of the

recovered ornaments by PWs 1, 2, Kamala K.P. (PW20) and Premaja (PW21). All

these witnesses identified the ornaments as that of the deceased when the same

was shown to them. It is pertinent to note that the witnesses in their earlier

statement had no case that the chain had a locket attached. It has come out in

evidence that MO1 and MO2 had been broken down into pieces, annealed and

had lost its colour. It was black in colour. None of the witnesses had given any

specific characteristics of the jewellery in their earlier statements. After recovery

of the gold the transformed ornaments were shown to the witnesses and they

admitted that the same belonged to the deceased. A Division Bench of this Court

in State of Kerala v. Gireesh Kumar9 relying on the principles laid down by

the Apex Court in Dakkata Balaram Reddy and another v. State of Andhra

Pradesh10 and Makrand Singh and others v. State of Madhya Pradesh11

and also the Kerala Police Manual, 1969 had deprecated the practice followed by

[2024 KHC OnLine 571]

[2023 SCC OnLine SC 474]

[2019 (3) SCC 770] `Crl.A. No.485 of 2019 :32: 2024:KER:72744

the investigating agency of displaying the recovered articles directly to the

witness and seeking their outright confirmation, and it was held that it is not

reliable or trustworthy. It was observed that identification of gold ornaments

must be done by mixing them with similar articles and the witnesses should be

asked to identify them. Such a course of action will ensure the veracity of the

identification and also makes the statements emanating therefrom more reliable.

It was also observed that though the Kerala Police Manual, 1969 envisages such

a course, the same has apparently not been adhered to by the police. In that

view of the matter, the evidence tendered with respect to the recovery of MOs1,

2 and 4, we conclude that the prosecution has not been able to convincingly

prove beyond doubt the recovery in accordance with law.

Recovery of the Shawl and the scientific evidence:

36. The next circumstance is the recovery of a shawl based on

Ext.P8(a) disclosure statement at the instance of the appellant. Ext.P5(a)

contains the relevant portion of the disclosure statement provided by the

accused. The said statement reads thus:

"ഷാൾ വീട്ടിൽ ഒളിപ്പിച്ചു വച്ചിട്ടുണ്ട്. എന്നെ കൂട്ടി കൊണ്ട് പോയാൽ അത് എടുത്തു തരാം."

The witnesses to the recovery are Sri.K.K. Sasi (PW6) and one K. Rajesh, who

was not examined before Court. The prime prosecution witness was made the `Crl.A. No.485 of 2019 :33: 2024:KER:72744

attestor to the mahazar. The principles laid down above insofar as MOs 1, 2 and

4 apply on all fours to the recovery of shawl as well. He was not present when

the accused allegedly made this disclosure. The Investigating Officer also did not

ensure the presence of independent witnesses from the locality to witness the

search. The Investigating Officer has not complied with the guidelines as laid

down by the Apex Court in the judgments above. No reliance can be placed on

the discovery of the shawl.

37. Then there is the evidence of PW26, the Assistant Director

(Biology), who had issued Ex.P28 report with regard to the samples of fibers

collected in the cellophane Fingerprints of the palms and neck lifted by the

investigating officer. Ext.P18 would reveal that the cellophane fingerprints of the

right hand of the deceased (Item No.2), cellophane fingerprints of the left palm

(Item No.4(a)) and cellophane fingerprints of the right palm (Item No. 4 (b))

contained fibers (scanty), which were similar to those in item No.1, the fibres of

the shawl siad to have been recovered from the house of the accused.

38. Fibers, especially those from textiles like shawls, are composed of

synthetic or natural materials, which can be mass-produced. This means that

"similar" fibers are found in countless garments. The term "similar" indicates that

the fibers share characteristics but doesn't confirm an exclusive match. There is a

a whole lot of difference between "similar" (broad range) and "identical"

 `Crl.A. No.485 of 2019                      :34:                                  2024:KER:72744




(conclusive match) while analyzing fiber samples.       As per Criminalistics, An

Introduction to Forensic Science, Edition 13, published by Pearson, fiber analysis

is often categorized under "class evidence," which lacks the individualization

capability of "unique" evidence like fingerprints or DNA. Therefore, when the

report says the fibers are "similar," it only means that they share general features

but do not pinpoint the source of a single item or person. (See also B.R.Sharma

Forensic Science in Criminal Investigation & Trials, 6th Edition) Microscopic

comparisons of fibers look at aspects such as diameter, colour, shape, and dye

composition. However, even two fibers from the same manufacturer can appear

"similar" without being "identical." The fiber's general appearance, under a

microscope, could match many fibers produced in the same batch or even by

other manufacturers. Many commercial fibers are polymer-based, with

mass-production techniques that yield similar fibers across various products. If

the fibers were only deemed "similar," it implies that these could have originated

from other items in circulation. This Court has held that fiber evidence indicating

mere "similarity" without additional corroborating evidence did not suffice to

prove the accused's guilt beyond a reasonable doubt. As the fibers are not

conclusively identical, their presence does not prove that the shawl allegedly

seized from the house of the accused was used in the crime. Reference can be

made to Biju Kumar v. State of Kerala12, and Muhammed Yousaf @ Sajid

2022 (1) KHC 463 (DB) `Crl.A. No.485 of 2019 :35: 2024:KER:72744

v. State of Kerala13. In Sajid (supra), though what was tested was hair and

the report stated that it was similar rather than identical, this Court had held that

it is not safe to rely on FSL report relating to the matching of the hair samples

when the result only shows that the hairs were 'similar' in nature. It was

observed that there is a substantial difference between the words 'identical' and

'similar', and therefore the report only speaking about similarity cannot be relied

on.

Seizure of cash being the alleged proceeds of the Crime:

39. What remains is the seizure of money from various individuals with

whom money was allegedly entrusted by the appellant and his wife. The

prosecution case is that upon interrogation regarding how the appellant had

used the money obtained from selling the gold ornaments, the appellant

disclosed that Rs.27,000/-, being part of the sum received from Sarada Jewellery,

had been entrusted to his wife, Rajeena (PW24). Based on this statement,

Rs.5,500/- was seized from PW24 as per Ext. P17 mahazar. PW24 did not

support the prosecution case. She stated that after the incident, the police

officers had threatened that she would be arrayed as an accused, and on its

basis, a sum of Rs.10,200/-which was with her was taken away.






     2023 KHC OnLine 136
 `Crl.A. No.485 of 2019                       :36:                                2024:KER:72744

40. Smt.Leela (PW10) claims that she is the landlord of the building

situated in the Laksham Veedu Colony, where the appellant is residing with his

family consisting of his wife and three minor children. She stated that rent was in

arrears and when the same was demanded, a sum of Rs.2000/- was handed over

to her by PW24 on 1.11.2010. She stated that police approached her on

2.11.2010 and informed her that the money was the proceeds of the crime. She

immediately handed over the money entrusted to her by PW24 and at the time

of handing over, Ext.P8 mahazar was prepared. In cross-examination, she

admitted that the owner of the house is her husband. However, Ext.P8 mahazar

would reveal that the appellant was taken into police custody on 12.11.2010 at

12:45 p.m., about 13 days after the alleged incident, and on the basis of the

disclosure statement that amounts were handed over to his wife, the police

approached his wife and it was based on her statement that a sum of Rs.2,000/-

was handed over to PW10, that they approached PW10 and took away the

money. The mahazar is seen prepared on 12.11.2010. Thus there is a serious

discrepancy in the evidence of PW10 with regard to the entrustment of the

money. Furthermore, the pointing out of a person by PW24 to the investigating

officer from whom some amounts were subsequently recovered would amount to

a statement to a police officer and hit by Section 162 of the Cr.P.C. and therefore

inadmissible.

`Crl.A. No.485 of 2019 :37: 2024:KER:72744

41. The next circumstance is the seizure of a sum of Rs.5000/- from

PW11 Sunil. In his evidence, Sunil stated that he was having acquaintance with

the appellant for over two years. He stated that he was having financial

transactions with the appellant. About one month prior to Nalini's death, he had

taken a loan from the "Yadava Seva Samudayam" in which organization, he was

a member, and had handed over the same to the appellant as requested by him.

As amounts had to be repaid, the accused was asked to repay the amount in the

month of October. On 31.10.2010, the accused approached him and handed over

a sum of Rs.5,000/. He realized then itself that the amounts handed over were

proceeds of a crime and hence, it was kept aside. On 3.11.2010, the police came

to his house along with the accused. Immediately, he had taken out the cash and

handed over the same to the police which was seized as per Ext. P9 mahazar. On

the same day itself, he came to know about the murder of Nalini. In

cross-examination, it was brought out that there is no document to substantiate

that he had taken out Rs.5,000/- from the Samudayam Fund. He stated that the

CI along with the appellant and the witnesses had come to collect the money on

3.11.2010. We are afraid that no reliance can be placed on the evidence of the

witness due to serious discrepancies in his evidence. It is his case that the

closing of the fund is during the end of October and that is the reason why he

had demanded back the amount. He stated that he heard about the murder of

Nalini on 31.10.2020 and realized that the amount handed over was the `Crl.A. No.485 of 2019 :38: 2024:KER:72744

proceeds of the crime. However, the appellant was arrayed as accused only on

2.11.2010 and, if that be the case, there was no reason for him to keep aside the

money as claimed by him, particularly, when the fund was closing down at the

end of October. Furthermore, a perusal of Ex.P9 seizure mahazar would reveal

that the disclosure was made by the appellant allegedly on 2.11.2010 but the

seizure of the amount was effected only on 12.11.2010. This is clearly contrary

to the evidence tended by PW11 that the seizure of the amount was effected on

3.11.2010. If the recovery was on 13.11.2010 as is seen emphatically in Ext.P9

mahazar, there is no logic in the witness clinging on to the sum of Rs.5,000/- for

a period of two weeks without paying back the amount to the Samudayam Fund

as claimed by him. In view of the above discrepancy, we are of the view that no

reliance can be placed on the recovery of Rs.5,000/- from PW11 as claimed by

the prosecution.

42. The next recovery is a sum of Rs.17,500/- from Sudha (PW13),

who resides adjacent to the home of the appellant at the Laksham Veedu Colony.

She stated that one Prakashan runs a 'Kuri" and that PW24 is a subscriber to the

said Kuri. When she had a requirement for money, she used to take loans from

the Kuri and repay it back later. She stated that she had advanced loan to PW24

on numerous occasions. A total sum of Rs.22,000/- was advanced by way of

loan. When the money is to be credited back to the fund, she would demand `Crl.A. No.485 of 2019 :39: 2024:KER:72744

back the amounts. On 31.10.2010, while PW24 and her children were watching

TV at her home, the appellant came and called her out. After some time, PW24

returned and handed over a sum of Rs.17,500/-. She stated that the amount

handed over by PW24 was retained by her at her home when she heard about

the death of Nalini. She stated that the Police came later and the money retained

by her was handed over. Ext.P10 is the mahazar prepared by the police at the

time of the seizure of the money. Her near relatives had stood as attestors. In

cross-examination, she stated that she retained the amounts for 16 days. She

admitted that the amounts from the Kuri had to be paid to Prakashan and not by

her. She pleaded ignorance about the amounts paid by Rajeena to Prakashan.

She also pleaded ignorance about the whereabouts of Prakashan. She stated that

it was due to urgency that the amounts were demanded back from PW24. She

also stated that the amount handed over has been noted in the register

maintained by Prakashan. In re-examination, the explanation offered by the

witness for retaining the amounts for 16 days was brought out. According to her,

she became aware of the role played by the appellant on 2.11.2010 and it is for

that reason that she retained the amounts in her possession. Ext.P10 mahazar is

dated 14.11.2010. The mahazar reveals that the appellant was re-arrested on

12.11.2010 and that he disclosed that he had handed over amounts to his wife

and based on the said disclosure, when his wife was questioned, she disclosed

about the handing over of the amounts to Sudha. The non-examination of `Crl.A. No.485 of 2019 :40: 2024:KER:72744

Prakashan, the person who runs the Kuri, the non-production of the register

showing that amounts were in fact taken out from the Kuri and handed over to

PW24 and the explanation offered by PW13 for retaining the amount from

31.10.2010 till 14.11.2010 rendered her evidence unreliable. The appellant was

arrayed as the accused only on 2.11.2010 and if that be the case, there was no

justification on the part of PW13 in retaining the amount.

Guiding principles:

43. In Balwinder Singh v. State of Punjab14, it was observed as

follows in paragraph No. 4 of the judgment:

"4. ... ..... In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof."emphasis supplied)

44. In State of U.P. v. Ashok Kumar Srivastava15, it was held that

it is the duty of the court to take care while evaluating circumstantial evidence. If

the evidence adduced by the prosecution is reasonably capable of two

inferences, the one in favour of the accused must be accepted. That apart, the

circumstances relied upon must be established and the cumulative effect of the

[1996 SCC (Cri) 59]

[(1992) 2 SCC 86] `Crl.A. No.485 of 2019 :41: 2024:KER:72744

established facts must lead to a singular hypothesis that the accused is guilty.

45. In Ram Singh v. Sonia16, while referring to the settled proof

pertaining to circumstantial evidence, this Court reiterated the principles about

the caution to be kept in mind by the court. It was observed as follows in

paragraph No. 39 of the judgment:

"39. ... The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts."( emphasis supplied )

46. Suspicion, however grave it may be, cannot take the place of proof

as held by the Apex Court in Sujit Biswas v. State of Assam17 held as under:

13. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved, and something that 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between 'may be' and 'must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the

[AIR 2007 SC 1218]

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court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar v. State of M.P., (1952) 2 SCC 71; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979).

47. In M.G. Agarwal v. State of Maharashtra18, the Apex Court

held that if the circumstances proved in a case are consistent either with the

innocence of the accused, or with his guilt, then the accused is entitled to the

benefit of doubt. When it is held that a certain fact has been proved, then the

question that arises is whether such a fact leads to the inference of guilt on the

part of the accused person or not, and in dealing with this aspect of the problem,

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benefit of doubt must be given to the accused, and a final inference of guilt

against him must be drawn only if the proved fact is wholly inconsistent with the

innocence of the accused, and is entirely consistent with his guilt.

48. Similarly, in Sharad Birdhichand Sarda (Supra), the Apex Court

has held as under:

Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence."