Kerala High Court
Abdul Vahid, C.No.2235 vs State Of Kerala on 23 October, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl.Appeal.1045 of 2018 & 37 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA, 1946
CRL.A NO. 1045 OF 2018
CRIME NO.161/CR/98 OF CBCID, THIRUVANANTHAPURAM,
CP NO.31 OF 2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS -
I, ATTINGAL
SC NO.782 OF 2009 OF ADDITIONAL SESSIONS COURT - IV,
THIRUVANANTHAPURAM
APPELLANT/ACCUSED
ABDUL VAHID, C.NO.2235, CENTRAL PRISON,
TRIVANDRUM - 12
BY ADV LUIZ GODWIN D COUTH(State Brief)
RESPONDENT/COMPLAINANT
STATE OF KERALA
REPRESENTED BY DGP, HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.E.C.BINEESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
17.10.2024, ALONG WITH CRL.A.37/2019, THE COURT ON 23.10.2024
DELIVERED THE FOLLOWING:
Crl.Appeal.1045 of 2018 & 37 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 23RD DAY OF OCTOBER 2024 / 1ST KARTHIKA, 1946
CRL.A NO. 37 OF 2019
CRIME NO.161/CR/98 OF CBCID, THIRUVANANTHAPURAM
CP NO.31 OF 2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS
-I, ATTINGAL
SC NO.782 OF 2009 OF ADDITIONAL SESSIONS COURT - IV,
THIRUVANANTHAPURAM
APPELLANT/2ND ACCUSED
SUDESAN @ KARADI RAJU, S/O GOVINDAN, C.NO.2234,
CENTRAL PRISON & CONRRECTIONAL HOME, POOJAPPURA,
THIRUVANANTHAPURAM AND RESIDED AT PUTHUVAL PUTHEN
VEEDU, MADHAVAPURAM COLONY, KARIKKAKKOM MURI,
KADAKAMPALLY VILLAGE
SRI.ANANDAN PILLAI (STATE BRIEF)
RESPONDENT
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA
2 THE D.Y.S.P., CBCID, THIRUVANANTHAPURAM
PUBLIC PROSECUTOR SRI.E.C.BINEESH
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
17.10.2024, ALONG WITH CRL.A.1045/2018, THE COURT ON
23.10.2024 DELIVERED THE FOLLOWING:
Crl.Appeal.1045 of 2018 & 37 of 2019
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P.B.SURESH KUMAR & C.PRATHEEP KUMAR, JJ.
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Crl.Appeal Nos.1045 of 2018 & 37 of 2019
------------------------------------
Dated : 23rd October, 2024
JUDGMENT
C.Pratheep Kumar, J.
These appeals are filed by accused Nos.1 and 2 involved in Sessions
Case No.782/2009 on the file of the Additional Sessions Judge-IV,
Thiruvananthapuram against the judgment dated 16.11.2017 convicting them
for offences punishable under Sections 302, 120-B and 201 r/w 34 of IPC.
2. In this case, as per the final report, altogether there were three
accused persons. Before the trial, the 3 rd accused died and hence the charge
against him abated.
3. The prosecution case is that the accused persons 1 to 3 along with
deceased Sali committed theft of a timber and a country boat belonging to PW2
and one of his relatives. Thereafter, on the apprehension that in case the
deceased, who was a known criminal, was arrested by the police, he may
disclose the names of the accused persons, they decided to do away with him.
For the said purpose, they conspired together on 19.2.1995 at 4.00 p.m., took
Sali from the house of PW6, boarded the train from Perumkuzhi railway station
to Veli and reached Kazhakuttom bus stop at around 9.45 p.m. From there, the
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1st accused purchased cigarettes and razor blades from the shop of CW18 and at
around 10.00p.m, they reached Madannada bust stop and thereafter went to
Madannada ghat. After consuming arrack, they took Sali to a country boat and
rowed across the lake. On the way, when the country boat reached near
Kakkathuruth island, the 1st accused smashed the head of Sali with an oar and
as a result of which he fell down into the boat. Thereafter, the accused persons
thrashed him, broken his ribs and when he became unconscious, they dipped
him into the water to confirm his death. Then they took the body to
Kakkathuruth, laid the body there and dissected the body by using the razor
and removed all internal organs and threw the same into the lake. They filled
the body with granite pieces and tied the body with wooden planks using fibre
of coconut leaf and then sunk the body into the lake and destroyed the
evidence.
4. The evidence in this case consists of the oral testimonies of PWs 1
to 27 and Exts.P1 to P35 and X1. MOs1 to 8 were identified. No evidence was
adduced by accused persons 1 and 2. After evaluating the available evidence,
the trial court found the accused 1 and 2 guilty of the offences as stated above.
Aggrieved by the above judgment of conviction and sentence, the accused
persons 1 and 2 filed these appeals raising various grounds.
5. Now the point that arise for consideration is the following :-
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Whether the finding of the trial court convicting and sentencing
the accused persons 1 and 2 calls for any interference in the
light of the grounds raised in the appeals.
6. Heard both sides.
7. Adv.Sri.Luiz Godwin D Couth who appeared on behalf of the 1 st
accused and Sri.Anandan Pillai who appeared on behalf of the 2nd accused
would argue that in this case there is absolutely no evidence to connect the
accused persons 1 and 2 with the offences charged against them. Therefore,
they prayed for acquitting the accused persons by allowing these appeals. On
the other hand, Sri.E.C. Bineesh, the learned Public Prosecutor prayed for
dismissing the appeal.
8. In these appeals, there is no direct evidence to prove the charge
against the accused persons. Therefore, the prosecution has mainly relied upon
circumstantial evidence to prove the charge.
9. The law on circumstantial evidence is well settled. When a case is
governed by such evidence, the evidence has to point singularly to the guilt of
the accused, closing out the possibility of all other hypothesis.
10. The basic decision relating to the nature, character and essential
proof required in a criminal case which rests on circumstantial evidence alone
is Hanumant Govind, Nargundkar and Another v.State of M.P., AIR 1952
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SC 343. In the above decision, a three Judges Bench of the Apex Court held in
paragraph 10 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 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 pendency and they should be such as to exclude
every hypothesis but the one proposed to be proved. In other words,
there must be a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the
accused and it must be such as to show that within all human
probability the act must have been done by the accused."
11. The five golden principles (styled as panchasheel) relating to
circumstantial evidence consistently followed in subsequent decisions is,
Sharad Birdhi Chand Sarda v. State of Maharashtra, 1984 (4) SCC 116. In
the said decision, the Apex Court after analysing various decisions including
Hanumant Govind (supra), in paragraph 153 held that:
"A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be
said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn
should be fully established.
It may be noted here that this Court indicated that the circumstances
concerned 'must or should' and not 'may be' established. There is not
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only a grammatical but a legal distinction between 'may be proved'
and 'must be or should be proved' as was held by this Court in Shivaji
Sahabrao Bobade & Anr. v. State of Maharashtra where the following
observations were made:
"Certainly, 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."
(2) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say. they should not be
explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency.
(4) they should exclude every possible hypothesis except the one to
be proved, and
(5) 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."
12. PW1 is the first informant. He admitted his signature in Ext.P1, FI
statement. Though in the FI statement he claimed that he had seen the dead
body of the deceased in the lake, at the time of examination he turned hostile to
the prosecution and stated that he has not seen the dead body.
13. PW2 would swear that two country boats belonging to his father
were stolen by the deceased and in that respect a complaint was given to the
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police. However, subsequently the country boats were traced out by the police
and hence they have not proceeded with the complaint.
14. PW3 the Sub Inspector, Chirayinkeezhu police station also
deposed that with respect to the loss of country boats, a complaint was received
and thereafter, since the country boats were recovered, the complainant has not
proceeded with the complaint. PWs 4 and 5 turned hostile to the prosecution.
15. PW6 is the wife of the cousin of the deceased. She would swear
that five days before the missing of Sali, the accused persons 1 and 2 along
with another person came to their house and Sali left her house along with
them. Thereafter, the whereabouts of Sali were not known and later, his dead
body was recovered from the lake.
16. PW9 is the brother of the 1st accused. He would swear that in
1995, the 1st accused came to his residence at Vadakara and thereafter he stayed
along with him. PW10 is the brother of the 3rd accused. He would swear that in
1995 the 3rd accused came to his residence at Hubli in Karnataka and
thereafter, he stayed there along with him.
17. PW13 was the Professor of Forensic Medicine and Police
Surgeon, who had conducted the postmortem examination on the body of the
deceased and issued Ext.P7 postmortem certificate. He had noticed the
following ante-mortem injuries on the body of the deceased.
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1. Contusion of scalp 8x5 cm on the left side of head just above
the ear. Underneath, the parietal bone showed a fissured fracture 7
cm long. The coverings of the brain were intact. No intracranial
bleeding. Brain was liquefied.
2. Bone deep incised wound with infiltration of blood around
the margins 2x1 cm on the right side of back of head 5 cm above the
occiput. Underneath, the skull showed a cut 1.5 cm long. The injury
was confined to the skull.
3. Muscle deep incised wound 2.5 x 1.5 cm obliquely placed on
the right side of neck, upper back and just below the angle of
mandible and lower front end 5 cm. Left of midline. No major blood
vessels were injured.
4. Incised wound 48 cm long, extending from the pit of stomach
to the public region in the midline, opening the abdominal cavity.
All abdominal organs except a portion of liver were found missing.
The cardiac end of stomach, remnant of the rectum and part of the
right lobe of liver were found clearly cut. The injuries did not show
any antemortem feature.
5. Fractures of 3rd to 10th rib on the left side and 3rd to 9th rib on
the right side at their angle. Transverse fracture of the body of
sternumm at its middle. The fractres did not show any antemortem
features.
The cause of death, according to him, is injury No.1 and also due to
drowning.
18. PW15 is the fingerprint expert who testified that the body
recovered is that of deceased Sali. PW16 is the Assistant Sub Inspector,
Chirayinkeezhu police station, who had registered Ext.P13 FIR under Section
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174 Cr.P.C. PW21 is the Assistant Director of Serology, Forensic Science
Laboratory, Thiruvananthapuram, who had examined the material objects
involved in this case and issued Ext.P17 certificate. As per the report, item
Nos.1 to 9 contained blood, but its origin could not be traced out due to
insufficiency of blood. Those are the items seized by the Investigating Officer
from the dead body of the deceased.
19. PWs20 and 23 are the Investigating Officers. PW20 prepared the
inquest report, while PW23 arrested the accused persons 1 and 2 and completed
the investigation and filed the final report.
20. CW34 who had conducted the remaining portion of the
investigation could not be examined as at the time of evidence, he was no
more. Instead, the prosecution examined a police constable attached to the
Crime Branch who accompanied CW34 as PW27. He would swear that he
accompanied CW34 when he had taken the accused persons to the place of
occurrence. He also would swear that CW34 has recorded the confession
statement of the accused persons and taken the accused to the place of
occurrence as well as the place where the dead body was mutilated and it was
tied along with wooden planks. However, in furtherance of the information
allegedly furnished by the accused persons, no recovery was effected.
Therefore, the evidence of PW27 does not in any way help the prosecution to
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connect the accused persons with the offence alleged against them.
21. In this case, the prosecution has mainly relied upon the evidence
of PW6 to show that the deceased was last seen along with accused persons
and thereafter, he was missing. Further, the prosecution relied upon the
evidence of PWs9 and 10 to prove that subsequent to the incident, the accused
persons 1 and 3 absconded from the place. According to PW6, it was five days
before the alleged date of death of deceased, the accused persons 1 and 2 came
to her residence and along with them, the deceased went away from her
residence. PWs 9 and 10 would swear that since 1995, the accused persons 1
and 3 were living along with them at Vadakara and Hubli respectively. These
are the only circumstances which the prosecution could bring out against the
accused persons.
22. As we have already noted above, from the evidence of PW6, at the
most what is revealed is that five days before the date of incident, deceased Sali
went along with the accused persons. From the evidence of PWs9 and 10 at
the most what can be gathered is that, since 1995 the accused persons 1 and 3
moved away from the place of occurrence and started living along with their
brothers at Vadakara and Hubli respectively. On the basis of these two
circumstances, nothing can be presumed to reach a conclusion against the
accused persons.
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23. In order to prove the guilt of the accused persons on the basis of
circumstantial evidence, the facts established shall be consistent only with the
hypothesis of the guilt of the accused and exclude every possibilities of their
innocence. The circumstances brought out by the prosecution do not satisfy the
requirements of law to hold that the accused 1 and 2 are guilty, as they are
insufficient to exclude every other possible hypothesis. In other words, the
prosecution has miserably failed in proving the guilt of the accused persons 1
and 2 beyond reasonable doubt and as such, they are liable to be acquitted of
all the charges. The point answered accordingly.
In the result, these appeals are allowed. Accused persons 1 and 2 are
acquitted under section 386(b)(i) CrPC. The 1st accused shall be released
forthwith, if his presence is not required in any other case. The 2 nd accused is
set at liberty, cancelling his bail bond.
Sd/-
P.B. Suresh Kumar, Judge
Sd/-
C. Pratheep Kumar, Judge
Mrcs/18.10.
