Kerala High Court
Jitheesh vs State Of Kerala on 11 February, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.A.No. 546 of 2023 1 2025:KER:10794
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 11TH DAY OF FEBRUARY 2025 / 22ND MAGHA, 1946
CRL.A NO. 546 OF 2023
AGAINST THE JUDGMENT DATED 16.10.2018 IN SC NO.406 OF 2016 OF
THE ADDITIONAL DISTRICT COURT, IRINJALAKUDA
APPELLANT/ACCUSED:
JITHEESH
AGED 23 YEARS
S/O SHAJI, EPPILLI HOUSE, ARATTUVAZHI DESOM,
ERIYAD VILLAGE, PIN - 680666.
BY ADV. DHEERENDRAKRISHNAN.K.K., LEGAL AID COUNSEL
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
SMT.NEEMA T.V., SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11.02.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Raja Vijayaraghavan, J.
The above appeal is directed against the judgment dated 16.10.2018 in S.C.
No.406 of 2016 on the files of Additional Sessions Judge, Irinjalakkuda. By the
impugned judgment, the appellant, who was charged for having committed offence
punishable under Section 302 of the IPC was found guilty and was sentenced to
undergo imprisonment for life and to pay a fine of Rs.50,000/- with a default clause.
The prosecution case:
2. The deceased, Noufal, is the brother of PW1 (Shanavas) and the son
of PW2 (Rasiya). The accused, Jitheesh, aged 19 years when the incident took
place, was a resident of the same locality. A few weeks prior to the incident, Noufal
along with another person had trespassed into the house of Jitheesh and had
assaulted his mother and a crime was registered against him. Jitheesh was thus
nursing an animosity against Noufal. On 17.12.2015, at about 7 p.m., Jitheesh came
to Noufal's house and persuaded him to go out with him. The prosecution alleges
that when Jitheesh and Noufal reached near the Eriyad Fuels near Cheraman Centre,
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Jitheesh took out a knife and stabbed Noufal. After inflicting the injuries, Jitheesh
fled from the spot. Though Noufal was rushed to the Modern Hospital, his life could
not be saved.
Registration of crime and investigation:
3. On 17.12.2015 at 10 p.m., PW1 (Shanavas) went to the Station House
Officer, Kodungalloor Police Station and lodged the FI Statement. However, Ext.P10
FIR as Crime No.3252 of 2015 under Section 302 of the IPC is seen registered only
on 18.12.2015 at about 1.59 p.m. by PW12, the Sub Inspector of Police,
Kodungalloor Police Station. The appellant has been named as the accused in the
FIR.
4. PW14 took over the investigation of the case. On receipt of the
information of the incident involving the death of Noufal over the phone, he deputed
officers for guarding the scene. He immediately went to the house of the alleged
suspect and found that he was sitting on the terrace of his house. He appeared to
have been under the influence of alcohol and in a delirious state. He was brought to
the Taluk Hospital, Kodungalloor and put under surveillance.
5. On 18.12.2015 at 9 a.m., PW14 went to the Modern Hospital,
Kodungalloor and prepared Ext.P7 inquest over the dead body of the deceased. MO2
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(Shirt) and MO3 (Kavi Mundu) found on the body of the accused were seized. At
3.45 p.m., on 18.12.2015, the expert from the DCRB inspected the place of
occurrence and took samples. On 19.12.2015, at about 4.11 p.m., the accused was
discharged from the Medical College Hospital, Thrissur and he was promptly
arrested. Based on the disclosure statement furnished by him and as led by the
accused, the weapon of offence as well as the clothes worn by him when the offence
was committed were seized as per Ext.P8 mahazar from his residential home. MO1
is the knife, MO4 is the full-sleeve shirt, MO5 is the double dhoti worn by him.
Ext.P13 report was submitted before the court correcting the time of occurrence as
8.15 p.m. on 17.12.2015 instead of 7.45 p.m. The autopsy report as well as the
chemical analysis report were obtained and produced before the court and after
completion of the investigation, the final report was laid before the Judicial
Magistrate of the First Class, Kodungalloor.
6. Committal proceedings were initiated in accordance with the law, and
the case was committed to the Court of Session. The case was then made over to
the Additional Sessions Judge, Irinjalakkuda. After hearing the prosecution and the
accused, charges under Section 302 of the IPC were framed. When the same was
read over, he pleaded not guilty and pleaded that he be tried in accordance with the
law.
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Evidence Tendered:
7. To prove the case of the prosecution, 14 witnesses were examined
as PWs 1 to 14 and through them, Exts.P1 to P19 were exhibited and marked.
MOs 1 to 6 were produced and identified. After the close of prosecution evidence,
the incriminating materials arising from the prosecution evidence were put to the
accused under Section 313 of the Cr.P.C. The accused denied the incriminating
circumstances and maintained that he was innocent. As no case for passing an
order of acquittal was made out at that stage, the accused was granted an
opportunity to adduce defence evidence. On the side of the defence, one witness
was examined as DW1. Exts. D1 to D4 case diary contradictions were marked.
Exts.X1 and C1 were marked as court exhibits.
The findings of the learned Sessions Judge
8. The learned Sessions Judge, after evaluating the entire evidence,
came to the conclusion that there was no direct evidence to prove the
commission of the offence by the accused. The court came to the conclusion that
the prosecution had succeeded in proving as many as 12 circumstances. It was
held that the chain of evidence was so complete as not to leave any reasonable
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ground for the conclusion consistent with the innocence of the accused. It was
held that the proven circumstances were conclusive enough and showed that in
all human probability, the act had been committed by the accused and no one
else. The circumstances relied on by the learned Sessions Judge are as follows:
a) The accused had a motive to commit the murder as he had a prior
enmity with the deceased.
b) The deceased had gone out with the accused as spoken to by PW2, the
mother of the deceased.
c) The deceased recharged his phone and purchased cigarettes from the
shop of PW3 and the accused was found in his company.
d) The failure of the accused to explain how the injuries leading to the
death of the deceased were sustained particularly when immediately
prior to the occurrence the deceased was found in his company.
e) PW6, a resident of the locality, identified the accused as the person
running through the street at or around the time the alleged incident
took place.
f) The recovery of MO1 (knife) MO4 (Shirt) and MO5 (White Mundu)
based on the disclosure statement made by the accused and the report
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of analysis produced as Exts.P17 and 18 showing the presence of 'A'
group blood in the clothes of the deceased, the weapon and the
clothes of the accused.
Contentions of the appellant:
9. As the learned counsel who had filed Vakalath for the appellant had
relinquished the engagement, we directed the Registry to ascertain from the
accused whether he intends to appoint a counsel of his choice or whether he
wanted the services of a legal aid counsel to prosecute the appeal. The accused
through the Superintendent has informed us that he does not have the
wherewithal to appoint a counsel of his choice. We requested Sri.
Dheerendrakrishnan, an experienced counsel, well versed in Criminal Law to
argue the appeal and the learned counsel has graciously acceded to our request.
10. Sri. Dheerendrakrishnan, the learned counsel, advanced the
following arguments to assail the judgment rendered by the learned Sessions
Judge.
a) He pointed out that though the FI Statement was furnished at 10 p.m.,
on 17.12.2015, the crime was registered only at 1.59 p.m. on
18.12.2015. Ext.P7 inquest was prepared even prior to the registration
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of the crime. In Ext.P7 inquest, the appellant is only suspected of
having committed the crime. The delay in registering the crime is
therefore fatal.
b) The learned Sessions Judge has disbelieved the evidence of PW1, the
brother of the deceased. The court held that there were numerous
discrepancies in his evidence making it unreliable. He being the first
informant, the court ought to have held that the genesis of the case
itself is in doubt.
c) The learned Sessions Judge has erred in placing reliance on the
evidence of PW3 to conclude that the deceased was seen in the
company of the accused at 7 p.m. and that he had heard the sound of
an Ambulance after half an hour. The prosecution case is that the
deceased was rushed to the hospital in an auto by two unidentified
persons in an auto. Furthermore, the case of the prosecution is that
the incident took place at 8.15 pm and not before 7.30 pm as claimed
by the witness. Merely because the accused was standing in the street
near to his house, it cannot be said that the offence was committed by
him.
d) The learned Sessions Judge gave much emphasis to the evidence of
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PW6 and concluded that the witness had seen the accused running
away wearing a black shirt. Referring to the evidence tendered by the
witness, it is submitted that the witness clearly stated that the accused
was brought by the police and that she was told that he was the
person who had run.
d) The learned counsel would then submit that no reliance could have
been placed on the alleged recovery of MO1 (knife), MO4 (shirt), and
MO5 (Dhothi) based on an alleged confessional statement given by the
accused immediately after his arrest on 19.12.2015. The learned
counsel points out that the accused was taken into custody from his
own house on 17.12.2015 itself but his arrest was recorded only on
19.12.2015. If that be the case, it cannot be believed that two days
after taking him in custody, the accused had confessed to concealing
the weapons. Furthermore, the prosecution's case is that the accused
was sitting on the terrace of his house in a delirious state. The
accused was admitted to the Taluk Hospital on the same day and then
discharged from the Medical College on 19.12.2015 at 4.11 p.m. Ext.P8
mahazar is also seen prepared based on a confessional statement
given by him immediately after the arrest. Furthermore, PW9, the
attesting witness to the mahazar, stated that he was standing outside
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the house while the police entered the house and recovered the
weapon and clothes. The learned counsel would also point out that
PW9 was the attesting witness to Ext.P7 inquest as well as Ext.P8
mahazar and the witness had clearly disowned his signature seen in
Ext.P8 mahazar. It is urged by the learned counsel that, in view of the
discrepancies and illegalities in the seizure, it can only be concluded
that the weapon as well as the clothes were planted.
e) The evidence revealed that the deceased was a hardened criminal
involved in not less than 7 crimes whereas the accused was a
19-year-old young man with no criminal antecedents. Several persons
had ample motive to do away with the deceased.
f) The learned counsel would refer to Ext.X1 case sheet which revealed
that the deceased was brought to the Modern Hospital by two
unidentified persons who fled from the hospital after dropping the
injured in the hospital premises. No attempt was made to trace out the
said persons, who may have been responsible for causing the injuries
on Noufal.
g) Police admittedly reached the hospital as soon as the injured were
brought, and this fact is evident from Ext.X1. If that be the case, there
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is no reason why they failed to register the crime promptly. Having
found that PW1 was speaking falsehood, the only conclusion that can
be arrived at is that the prosecution made a conscious effort to concoct
a false case against the appellant, as they were not able to trace out
the actual culprits.
g) Though it is alleged that the accused was in a delirious state and his
arrest could not be recorded at the time of his arrest on 17.12.2015, no
medical records were produced before the court to substantiate the
said fact.
Submissions of the learned Public Prosecutor.
11. Smt. Neema. T.V., the learned Public Prosecutor, submitted that the
learned Sessions Judge has carefully evaluated the evidence and has arrived at
the finding of guilt. The evidence of PW2 and PW3 reveal that the deceased was
with the accused and immediately thereafter, he was found dead on the road near
to the fuel station. The accused was also found fleeing by PW6. The recovery of
the weapon and the presence of the blood of the deceased on the clothes of the
accused seized based on his disclosure statement cements his involvement
further. It is submitted that the appellant has not made out any grounds for
interfering with the finding of guilt passed by the learned Sessions Judge.
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12. We have considered the submissions advanced and perused the
records. We have also carefully gone through the judgment passed by the learned
Sessions Judge.
Evaluation of the Evidence
13. PW1 to PW3 have stated before the Court that Noufal, the deceased
in the instant case, was found lying on the road with injuries. Noufal was shifted
to the Modern Hospital and the doctors after examining the injured declared him
dead. The autopsy was conducted by PW13, the Assistant Professor of Forensic
Medicine, who noted the eight injuries. He stated that the deceased died on
account of injury No. 8 which reads as follows:
8. Incised penetrating wound, 5.5cm long, slightly oblique, entering
the peritoneal cavity over the front of right side of its upper inner end at
the midline, 7cm below the umbilicus; its lower outer end, 5.5cm away
from midline, 7.5cm below the intra dermal contusion around it. It
passed downwards, backwards and towards the midline piercing the
small intestine and adjoining mesentery and its blood vessels, 177cm
away from the caecum. The peritoneal cavity contained 2 litres of fluid
blood and 10 handfuls of clotted blood. The total minimum depth of the
wound-3cm.
14. From the above evidence, it can be concluded without any manner
of doubt that the death of Noufal was homicidal.
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15. Now we shall deal with the circumstances relied on by the learned
Sessions Judge to arrive at the conclusion that it was the appellant who had
inflicted the injuries leading to the death of the deceased, for which it is
necessary to evaluate the evidence tendered by the prosecution witnesses.
16. PW1 (Shanavas) is the brother of the deceased. He is a mason by
profession. On 17/12/15 at 7.30 p.m., after work, he was returning back on his
Scooter. After crossing Cheraman Junction and while he was about to reach his
home, he found his brother Noufal and the accused walking towards the junction.
He stopped his scooter and enquired with the accused whether all was well and
he responded that there were no issues. He stated that the distance from the said
spot to his house was about 50 meters. When he reached home, his mother
informed him that Jitheesh had come smoking a cigarette and took his brother
and asked him to enquire about them. He turned his bike and went back and
found his brother lying near the petrol pump. Jitheesh was also seen standing
near him. On seeing PW1, Jitheesh took to his heels and he was found to be
carrying a knife in his hand. He stated that the time was about 8.15 p.m. by then
and he saw the deceased and the accused under the street light. He stated that
two persons took his brother to the hospital in an autorickshaw. By the time, his
father had also reached the place. PW1 and his father then went to the Modern
hospital on his scooter and by the time they reached the hospital, the deceased
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had succumbed to the injuries. He then went to the Police Station and lodged
Ext.P1 statement. He identified MO1 weapon found in the possession of the
accused and the dress worn by the accused. He stated that the deceased had
assaulted the mother of the accused and a crime had been registered. He also
came to know that his brother was threatened by the accused with a knife while
he was travelling on a bus. In cross-examination, he admitted that the deceased
was an accused in 5 - 6 cases and was under incarceration in connection with two
cases and also was accused in some theft cases as well. He stated that he was
unaware of the identity of the persons who took his brother to the hospital as he
did not have prior acquaintance with them. It was brought out that he did not
make any effort to take his brother to the hospital. This aspect was probed
further by the defence and he stated that before he could reach near his brother,
the two unidentified persons took the deceased in an autorickshaw and he was
taken to the hospital. At the same time, he later corrected that he was the first
person to reach the spot. He also went on to state that he had reached near his
brother first and it was only thereafter that the injured was shifted to the hospital.
He stated that his father joined him only later and he did not come with him on
his bike. Exts. D1 to D3 contradictions were marked in his evidence. In
re-examination, he stated that the house of the accused is situated 40 meters
away from his home.
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17. It needs to be borne in mind that PW1 is the first informant in this
case. His case is that after Noufal was declared dead by the Doctor at Modern
Hospital, he went to the station and furnished his statement at 22.00 hours on
17/12/15. Curiously enough, Ext.P10 FIR is seen registered on 18/12/15 at 13.59
hours. We shall deal with this matter after evaluating the evidence of PWs 2 to 4.
18. PW2 (Rasiya) is the mother of the deceased. She stated that while
Noufal was having his dinner, the accused came home at about 7 p.m. The
deceased went with him. When PW1 came home, she asked him to enquire. Her
husband also went with him. Her version is against what was stated by PW1, who
said that his father did not accompany him when he went to enquire.
19. PW3 (Abdul Rasheed) runs a store at Cheraman Junction. He stated
that Noufal came to his shop at about 7.00 p.m. and purchased a recharge
coupon for his mobile phone and two cigarettes. At that time, the accused was
found standing outside his shop. According to him, his shop is 400 metres away
from the petrol pump. After about half an hour, i.e. at about 7.30 p.m., he heard
the sound of an ambulance. He stated that he came to know about the death of
deceased Noufal subsequently. He stated that he has a close acquaintance with
the accused and the deceased. In cross-examination, he stated that he has a
close acquaintance with Noufal and his family as they are members of the
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adjacent Mahals. He said that Noufal had spent about 10 minutes in his shop.
20. PW4 stated that in the year 2015, she was working as a Librarian at
the Mohammed Abdul Rahman Saheb Library situated at Eriyad. Sabitha (PW5)
was the Assistant Librarian. Sometime in the month of December 2015, while
they were returning home from the library at 8.30 p.m, they found a person lying
on the side of the road with stab injuries. On seeing them he said, "Sister, I have
been stabbed". Her father was working in a nearby fuel station. She went to the
fuel station and informed him about the incident. Identical evidence was tendered
by PW5 as well. They refused to disclose the presence of the accused at or
around the place of occurrence and hence they were declared hostile.
21. PW6 is a residence of the locality. She stated that she is aware of
the incident involving the death of Noufal. She stated that while she was talking
with one Nadeera, a neighbour, she saw a person wearing a black shirt sprinting
through the street. The police brought the said person and she identified the
sprinter as the accused. In cross-examination, she was asked whether the police
had brought the accused and told her that this was the person who ran off to
which she answered in the affirmative. She said that she had not stated to the
police that it was the accused who had ran away from the spot. She reiterated
that she had not seen him running away.
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22. Nadeera (PW7) stated before the court that though she was with
PW6, however, she denied having seen anything in connection with the incident.
23. PW9 (Thajudeen) was the attestor to both Ext.P7 inquest report and
Ext.P8 seizure mahazar prepared at the time of recovery of MO1 weapon and
clothes from the house of the accused based on the disclosure statement. He
stated that Noufal's brother is his co-worker. When he was confronted with his
signatures in Exts.P7 and P8, he admitted that the signatures are different. He
then disowned his signature in Ext.P8 seizure mahazar and stated that it was not
his. When probed, he stated that he stood outside the house of the accused and
the police had entered and recovered the weapon and clothes.
24. DW1 was examined by the defence and through him the treatment
records of Noufal at the Modern Hospital were marked as Ext. X1. DW1 is the
Medical Superintendent of the Modern Hospital. He produced Ext.X1 which was
prepared by Dr. Fayaz. He stated that Dr. Fayaz had left the hospital but he is
acquainted with his handwriting and signature. According to him, Noufal, aged 19
years, was brought to the casualty by two males who ran away after leaving the
body in the casualty. They did not disclose their name and address. Thereafter,
the father of Noufal came to the hospital. He stated that the case sheet records
that the patient was brought dead. He stated that thereafter a group of
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policemen came to the hospital from the Kodungallor Police Station reported to be
CI and other Police Officers.
25. The above is the summary of the evidence let in by the prosecution.
26. Now we shall deal with the evidence of PW1 and Ext.P1 as the
entire case revolves on the same. Though the FI statement was lodged at 10 p.m.
on 17.12.2015, it has come out from Ext. X1 that the CI and Police Officers
attached to the Kodungallur Police Station had reached Modern Hospital
immediately after the incident. For reasons best known to the investigating officer,
the treatment records of Modern Hospital were suppressed and the defence had
to summon the same to get the same marked in evidence. Ext. X1 would reveal
that the injured was brought to the hospital by two unidentified persons. This has
been spoken to by PW1 as well. PW14, the investigating officer has stated that he
did not conduct any investigation to ascertain the identity of those persons who
had brought Noufal to the hospital. Ext.X1 reveals that the father of the deceased
had reached Modern Hospital first. No mention is made about PW1. As to why the
crime was not promptly registered after recording the statement of the father is a
mystery.
27. PW1 in his evidence stated that he was the first person to see
Noufal lying on the road with injuries. Though PW2 stated that both PW1 and his
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father had gone to enquire, PW1 in his evidence stated that his father had come
only later. However, he admitted that he and his father had gone to the hospital
together after his injured brother was shifted to the hospital by two total
strangers. It is next to impossible to believe the version of PW1. If he had in fact
seen his brother lying with injuries on the road and if his father was also with
him, they would have taken measures to save Noufal instead of banking on some
strangers, whom they did not know, to shift their brother. PWs 4 and 5 are the
Librarian and the Assistant who saw the injured lying on the road. They did not
mention either PW1 or anyone else. She went and told her father who was
working in the nearby fuel station. The said witness was also not summoned or
examined. In Column No.XII (a) of Ext. P7 inquest which was prepared at 9 a.m.
on 18.12.2015, it is only mentioned that the appellant is the suspect. However, in
Ext.P10 FIR registered based on information furnished at 10.00 p.m. on
17.12.2015, the name of the accused is mentioned as Jitheesh. However, the fact
remains that the Crime was registered only at 1.59 p.m. on 18.12.2015 and the
FIR reached court only at 3.55 p.m. on the same day. Absolutely no explanation is
furnished by PW14 as regards the delay in registering the FIR. Having considered
the evidence of PW1 in the light of the evidence tendered by PWs 2, 4, 5 and
DW1, we hold that no reliance can be placed on the same. It is clear that the long
delay in registering the FIR makes it suspect and unsafe to rely upon.
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28. With regard to the time of the occurrence, there are serious
discrepancies. PW2, the mother of the deceased, stated that Noufal had left the
house with the accused at 7 p.m. PW3 stated that Noufal had come to his shop
just after 7 p.m. He also stated that within half an hour, he heard the sound of an
ambulance hinting that the injuries were inflicted within half an hour. PWs 4 and
5 stated that the injured was seen lying on the road with injuries at 8.30 pm. The
case of the prosecution is that the injured was taken to the Modern Hospital in an
autorickshaw. Modern Hospital is situated just under 5 km distance from the
Cheraman Junction and if the injured is taken in a vehicle, he would have reached
the hospital in just under 10 minutes. Ext. X1 reveals that the injured was seen by
the Doctor only at 8.40 p.m. In this context, Ext.P13 assumes some relevance. On
19.12.2015, a report was forwarded to the Court wherein it is stated that though
as per the earliest records, the time of occurrence is mentioned as 7.45 p.m., in
the course of investigation, it is revealed that the incident took place at 8.15 p.m.
The significant time gaps have some relevance because of the fact that the
deceased was rushed to the hospital by two strangers. Even if the accused was
seen with the deceased at 7 p.m., there are several other possibilities of some
other intervention by another set of assailants. In other words, the evidence
tendered by the mother that the deceased had gone out with the accused or the
evidence tendered by PW3 that the deceased was seen in the company of the
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accused when he had come to make some purchase would not be enough to
conclude that the injuries could only have been inflicted by the accused.
29. We also have some reservations in accepting the evidence of PW2,
the mother of the deceased. It has come out in evidence that about two weeks
prior to the incident, the deceased, who appears to be a habitual offender, had
trespassed into the house of the accused and assaulted his mother. PW1 also had
stated that the accused had threatened the deceased while he was travelling in a
bus. If that be the case, it is quite unlikely that the accused would nonchalantly
go to the house of the deceased and on his invitation, the deceased would readily
come out and go for a walk with him.
30. Much reliance was placed by the learned Sessions Judge on the
evidence of PW6, who stated that she had seen the accused wearing a black shirt
and sprinting away. A proper evaluation of the evidence of the said witness would
reveal that she stated unequivocally that the police had brought the accused and
told her that it was the accused who had fled from the spot. She stated that she
had not seen the accused running away. His evidence does not inspire confidence
and cannot be used to conclude that it was the accused who had run away at or
about the time of occurrence.
31. Now what remains is the recovery of the weapons and clothes worn
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by the accused at the time of occurrence. The prosecution contends that the
weapon as well as the clothes were sent for analysis and the expert has noted the
presence of the blood and the group is also similar to that of the deceased.
33. In State of Rajasthan v. Bhup Singh1, 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.
34. The aspect which this Court has to consider in the present case is
whether the recovery has 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
[ (1997) 10 SCC 675]
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profitable to bear in mind the observations of the Apex Court in Subramanya v.
State of Karnataka2, 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 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
[2022 SCC OnLine SC 1400]
Crl.A.No. 546 of 2023 24 2025:KER:10794
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 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."
35. In Ramanand alias Nandlal Bharti Vs. State of Uttar
Pradesh3, 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
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
2022 SCC OnLine SC 1396
Crl.A.No. 546 of 2023 25 2025:KER:10794
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.
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
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
Crl.A.No. 546 of 2023 26 2025:KER:10794
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."
36. As we have already noted, immediately after the incident, the police
arrived at the hospital. PW14, the Investigating officer, stated that on the same
day, he went to the house of the accused and found him sitting on a terrace. He
states that the accused was in an inebriated state. The accused was then taken to
the Taluk Hospital from where he was transported to the Medical College Hospital
in Thrissur. If the accused was in an inebriated or delirious state, certainly, PW2
and PW3 would have noted the same. Though the accused is stated to have been
taken to the Taluk Hospital and then to the Medical College Hospital, no records
have been produced to substantiate that he was under the influence of alcohol or
under any other condition. It is difficult to believe that the accused, after
committing the murder, returned to his house, changed his clothes and waited for
the police to come and arrest him. It is also difficult to believe that the police
would have permitted him to change his clothes so that after two days they could
come back and seize the same. The accused was in the hospital until 4:11 p.m. on
19.12.2015 and, upon discharge from the hospital, he is alleged to have furnished
Ext.P8 disclosure statement and thereafter led the police to the location where he
Crl.A.No. 546 of 2023 27 2025:KER:10794
had hidden his weapon and clothes. He has not stated the exact words attributed
to the appellant in his evidence and has also not proved the contents of Ext.P8
mahazar. The witness who was examined to prove the recovery disowned his
signature in Ext.P8 mahazar. The person who signed as an attestor to the inquest
on 18.12.2015 is the very same person whose presence was procured at the time
of the seizure. He is admittedly a coworker of the brother of the deceased. In that
view of the matter, the recovery of the weapon and the clothes allegedly at the
instance of the accused will not advance the case of the prosecution. The accused
was taken into custody from the very house two days prior to the recovery and no
explanation is offered as to what prevented the Investigating officer from carrying
out a seizure on that day. As rightly submitted by the learned counsel appearing
for the appellant, there is every reason to suspect that the weapon as well as the
clothes were planted to place the authorship of the crime on the appellant.
37. In Durga Burman Roy v. State of Sikkim4, the Apex Court
observed that in deciding the sufficiency of circumstantial evidence for the
purpose of conviction, the court has to consider the total cumulative effect of the
proven fact, each one of which reinforces the conclusion of guilt and if the
continued effect of all these facts taken together is conclusive in establishing the
guilt of the accused, the conviction would be justified even though it may be one
(2014) 13 SCC 35
Crl.A.No. 546 of 2023 28 2025:KER:10794
or more of these facts by itself or by themselves is not decisive. The accused
cannot be convicted on the basis of circumstantial evidence if there are missing
links or false links in the chain of events to prove the circumstances conclusively
against the accused. We are in view of the above discussion, satisfied that the
prosecution has failed to prove its case against the appellant.
Conclusion
38. Resultantly, this appeal will stand allowed. The finding of guilt,
conviction and sentence passed against the appellant in S.C. No.406 of 2016 on
the files of Additional Sessions Judge, Irinjalakuda, will stand set aside and the
appellant/accused is acquitted of all charges. The appellant/accused be set at
liberty forthwith if his continued incarceration is not required in any other case.
We express our appreciation to Sri. Dheerendrakrishnan, the learned
counsel, who accepted our request to argue the appeal pro bono.
sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
sd/-
P.V. BALAKRISHNAN,
PS /09/02/25 JUDGE
