Kerala High Court
Prakash vs State Of Kerala on 29 January, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:6779
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 29TH DAY OF JANUARY 2025 / 9TH MAGHA, 1946
CRL.A NO. 1077 OF 2024
AGAINST THE JUDGMENT DATED 29.11.2021 IN SC NO.701
OF 2018 OF ADDITIONAL DISTRICT COURT (ADHOC),
PATHANAMTHITTA
APPELLANT/ACCUSED:
PRAKASH, AGED 54 YEARS, S/O AYYAPPAN,
THARAYIL HOUSE, NEAR KAVUMPATTU TEMPLE,
EDATHITTA MURI, KODUMON VILLAGE,
PATHANAMTHITTA DISTRICT, PIN - 689711
BY ADV M.G.SREEJITH
RESPONDENTS/COMPLAINANT:
STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
ADV. SRI. ALEX M THOMBRA, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
20.01.2025, THE COURT ON 29.01.2025 DELIVERED THE
FOLLOWING:
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"C.R."
JUDGMENT
Jobin Sebastian, J.
The judgment of conviction and order of sentence passed against
the sole accused in S.C. No.701/2018 on the file of the Additional
Sessions Court-II, Pathanamthitta, for offences punishable under
Sections 449 and 302 of the Indian Penal Code are under challenge in
this appeal.
2. The prosecution case in brief is as follows:-
The deceased, named Sankaran, who had a history of animosity
with the accused hurled abuses at him from 3.30 p.m. to 5.30 p.m., by
standing in the courtyard of one Sreekumari, a relative of the deceased.
Due to the said animosity, the accused with an intention to kill Sankaran
on 17.03.2018 at 1.30 a.m., trespassed into the work area of the house
of Sreekumari bearing registration No. XVIII/2023 of Koduman
Panchayat where Sankaran was sleeping in an inebriated state.
Thereafter, the accused held both the legs of Sankaran together and
inflicted severe cut injuries on the back of both the legs, measuring
15cm and 14cm, above the foot respectively on the right and left legs.
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As a result of profuse bleeding from those injuries, Sankaran died
between 1.30 a.m. and 7.00 a.m., on 17.03.2018. Hence the accused is
alleged to have committed the aforementioned offences.
3. On completion of the investigation, the final report was
submitted before the Judicial First Class Magistrate's Court, Adoor. As
the case was one triable exclusively by the Court of Session, the learned
Magistrate after complying with all the necessary formalities committed
the case to the Sessions Court, Pathanamthitta.
4. After taking cognizance, the learned Sessions Judge made
over the case for trial and disposal to the Additional Sessions Court -II,
Pathanamthitta. After hearing both sides under Section 227 of the
Cr.P.C. and perusal of records, the learned Additional Sessions Judge,
framed a written charge against the accused for offences punishable
under Sections 449 and 302 of the IPC. When the charge was read over
and explained to the accused, he pleaded not guilty and claimed to be
tried. The prosecution thereupon, examined the witnesses on their side
as PW1 to PW20 and proved through them Ext.P1 to P29 documents.
MO1 to MO9 are the material objects identified by the prosecution
witnesses and marked in evidence. After completion of prosecution
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evidence, when the accused was questioned under Section 313 of the
Cr.P.C., he denied all the incriminating materials brought out against him
in evidence. Since it was not a fit case to acquit the accused under
Section 232 of the Cr.P.C., the accused was directed to enter on his
defence. But no evidence was adduced from his side.
5. After trial, the accused was found guilty of offences
punishable under Sections 449 and 302 of the IPC and convicted. The
accused was sentenced to undergo imprisonment for life and to pay a
fine of Rs.1,00,000/- (Rupees one lakh only) with a default clause to
undergo rigorous imprisonment for a period of one year under Section
302 of the IPC. For offence punishable under Section 449 of the IPC the
accused was sentenced to undergo rigorous imprisonment for 7 years
and to pay a fine of Rs.50,000/- (Rupees fifty thousand only) with a
default clause to undergo rigorous imprisonment for a period of six
months.
6. This case relies heavily on circumstantial evidence to prove
the prosecution's case. As noted, the incident occurred between 1.30
a.m. and 7.00 a.m. on 17.03.2018, inside the work area of the house of
one Sreekumari. The present case was registered based on the FIS
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given by Sreekumari to the Sub Inspector of Police, Kodumon Police
Station. When Sreekumari, the first informant, was examined as PW1,
she deposed as follows:-
During the period of occurrence in this case, she was residing in a
house named 'Tharayill House', situated on the eastern side of
Ezhamkulam Kaipattoor Road, and was running a shop near her house.
The accused is the husband of her deceased sister and the deceased
Sankaran is also her relative. On 16.03.2018, at 3.00 p.m., Sankaran
came to her house. The house of one Lathabhai (PW2) is situated on
the immediate southern side of PW1's house. While the accused and one
Sathyan were doing masonry work in the house of Lathabhai, Sankaran
abused the accused in filthy language by standing in the courtyard of
PW1's house. Sankaran, the deceased in this case was intoxicated at
that time. Then Lathabhai, (PW2) asked the deceased not to use filthy
words. Then the accused told Lathabhai "ചേച്ചി ഒന്നും പറയണ്ട, അതിനുള്ള കൂലി
ഞാൻ കൊടുത്തുകൊള്ളാം." Thereafter, PW1 went to her shop. At around 8.00
p.m., when she came back to her house after closing her shop, she saw
Sankaran lying in the work area, asleep. At around 12.00 p.m., when
she went to the kitchen to fetch water to give medicine to her mother,
she again found Sankaran sleeping in the work area of her house.
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Thereafter, at around 1.00 a.m., she heard the barking of her dog, when
she peeped through the window she saw the accused walking from her
courtyard and proceeding to his house situated in the east. Since a
cattle shed is situated on the western side of her house a light would
usually be kept on throughout the entire night. Thereafter, she went to
sleep. In the morning, at around 7.00 a.m., when she came out of her
house, she looked for Sankaran and found him lying with his head
upwards. The entire work area was covered in blood. Then she checked
Sankaran's pulse and was convinced that he was dead. Thereafter she
went to Lathabhai (PW2) and told that Sankaran was lying dead. She
also informed the Panchayat Member (CW6 not examined) about the
incident. As informed by the Panchayat member, police arrived and she
gave a statement to the police. Ext.P1 is the statement so given by her
to the police. The accused is a person having a tendency to wreak
vengeance if he harbours animosity to someone. Two years prior to the
incident, the accused hacked her goat and the injury was sutured with
56 stitches. She lodged a complaint before the Koduman Police
regarding this incident. Two days before the goat-hacking incident, the
accused kicked and killed her three puppies. Moreover, on one occasion,
the accused hacked on the leg of his wife and he was subsequently
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convicted in the said case. Therefore, she firmly believes that it was the
accused who hacked Sankaran. Sankaran had no enemies in the
locality. PW1 identified the chappal worn by the deceased at the time of
the commission of the offence and the same was marked as MO1. The
accused was residing on the immediate western side of her house.
When PW1 was confronted with a knife, she verified and deposed that it
was the same knife that the accused had taken from a fish stall where
he worked. According to PW1, she is a Nurse and worked in Mumbai for
a considerable period. The house where the incident occurred originally
belonged to her sister Vijaya. PW1 stated that she started to reside in
the said house to take care of her aged mother. The son of the accused
Atul Prakash was also residing with her, and she was taking care of him.
7. When Lathabai, the immediate neighbour of PW1 was
examined as PW2, she deposed that PW1 resides in a house situated on
the immediate northern side of her house. On 16.03.2018, while one
Sathyan was doing masonry work in her house assisted by the accused,
around 3.30 p.m., the deceased, a close relative of PW1, hurled abuses
against the accused by standing in the courtyard of PW1's house. Upon
hearing this, PW2 asked the deceased to stop hurling abuses and leave
the premises. However the deceased continued to abuse the accused.
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Then the accused told that "ചേച്ചി ഒന്നും മിണ്ടണ്ട അവനുള്ള പണി ഞാൻ
കൊടുത്തുകൊള്ളാം". In the evening the accused and the mason left her
house. On the next day morning, PW2's neighbour Sreekumari (PW1)
informed her that Sankaran, the deceased in this case was found dead
inside her house with severe injuries on his legs. Then she went to the
house of PW1 and saw the deceased lying in a pool of blood with cut
injuries on both legs, inside the work area of PW1's house. PW2 then
enquired to Sreekumari who had done it and Sreekumari told her that
she suspects Prakash, the accused in this case. PW2 deposed that the
deceased Sankaran was a distant relative of Sreekumari and he
occasionally visited PW1's house. Moreover, Sreekumari stated that the
deceased had been sleeping in the work area of her house. PW2 further
deposed that she suspects the accused was responsible for the crime, as
the accused while working in PW2's house, told that "പണി ഞാൻ
കൊടുത്തുകൊള്ളാം". According to PW2 the accused was residing on the
western side of the property of PW1. She further testified that there is a
cattle shed on the western side of PW1's house.
8. When another independent witness, PW3, was examined
she testified that on 16.03.2018, at around 3.00 p.m., she heard the
deceased uttering abuses against the accused in filthy language. Later
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that night, at 11.00 p.m., she heard the barking of dogs. The next day
morning, Sreekumari (PW1) called out her from the boundary of PW1's
house. PW3 reached at Sreekumari's house, she saw Sankaran the
deceased in this case lying dead in the verandah situated on the
northern side of the kitchen of PW1's house, with cut injuries on his
legs. When she enquired, PW1 told her that when she had woken up
to give medicine to her mother, she heard the barking of dogs and when
peeped through the window she saw Prakash, the accused in this case
walking from the courtyard of her house to his house. Prior to the
incident, in this case, the accused hacked the domestic animals fostered by
PW1 Sreekumari. PW3 further deposed that the accused is a person with
criminal attitude and she suspects that it was he who committed the crime.
9. Another independent witness, examined by the prosecution is
PW4. He deposed that, he is running a ration shop at Edathitta. PW1
Sreekumari is residing on the opposite side of his shop. On 16.03.2018,
someone told him that, a commotion had occurred between the deceased and
the accused near the house of Sreekumari. Sankaran, the deceased in this
case was a relative of PW1 and on the alleged date of the incident, he saw
Sankaran entering the house of Sreekumari. The next day morning, PW4
learned about the incident in this case, when he opened his shop. Upon
hearing the news, he went to Sreekumari's house and found Sankaran lying
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dead in the work area of the said house with injuries on both legs. The body
was lying in a pool of blood. Previously Sreekumari told him that the accused
hacked her goat and cow.
10. The Circle Inspector of Police, Konni Police Station who
conducted the initial part of the investigation in this case was examined
as PW19. According to PW19, he took over the investigation in this case
on 17.03.2018. As part of the investigation, he visited the scene of the
occurrence and interrogated and recorded the statements of witnesses.
On 17.03.2018, at around 10.30 a.m., with the help of a scientific
expert, he again visited the crime scene and held inquest in the
presence of independent witnesses and Ext.P2 is the inquest report.
The entire procedures of inquest were videographed and necessary
photographs were also taken with the help of the Department
photographer. PW19 noted one cut injury each on both the legs of the
deceased. The shirt, banyan, and dhoti worn by the deceased and
found on the dead body were seized after describing in Ext.P2 inquest
report. PW1 identified the said shirt, dhoti, and banyan and the same
were marked as MO4 to MO6 respectively. A pair of chappals found on
the deceased's dead body were also taken into custody. Thereafter, the
dead body was forwarded for postmortem examination. The items
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collected from the crime scene by the scientific officer were also seized
by PW19 as per Ext.P9 seizure mahazar. The thondi articles seized were
duly produced before the court after describing the same in Ext.P16
property list. The items collected by the scientific expert were also
produced before the court as per Ext.P17. According to PW19, the
further part of the investigation was conducted by PW20.
11. The Sub Inspector of Police who registered the FIR in this
case and conducted a part of the investigation was examined as PW20.
According to PW20 while he was the Station House Officer of Koduman
Police Station, on 17.03.2018, he got information that one person lying
dead in a house named 'Tharayil house' located at Kaipattoor.
Accordingly, he along with the police party reached in the said house
and found a person lying dead in the work area of the said house with
cut injuries on both legs. Thereafter, he recorded the statement of PW1.
Ext.P1 is the FIS so recorded by him. After deputing PW12 for scene
guard duty, he returned back to the Police Station and registered the
present case as Crime No.399/2018 under Sections 449 and 302 of the
IPC and Ext.P18 is the FIR registered by him. Thereafter, the Circle
Inspector of Police, Konni (PW19) took over the investigation in this case
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and held inquest. Thereafter, PW20 again conducted the investigation in
this case as directed by PW19. According to PW20, he effected the
arrest of the accused on 18.03.2018 at 5.30 p.m. from a place called
Edathitta after complying all legal formalities. Arrest memo, custody
memo, inspection memo and the arrest intimation prepared by him were
marked as Ext. P20 series four in numbers. Thereafter, he visited the
scene of occurrence and prepared Ext.P13 scene mahazar. On
interrogation, the accused made a disclosure statement that "the knife
and dhoti were kept by me in my house, and if I am taken I will take
and produce the same". On the strength of the said disclosure
statement and as led by the accused on 19.03.2018 at 10.30 p.m.,
PW20 reached the house of the accused and then the accused took a
knife from the first shelf of a concrete almirah in the kitchen of his
house and handed over the same to PW20. Moreover, the accused took
and produced one dhoti from a cloth line tied in the bedroom of his
house and produced the same to PW20. According to PW20, he
recovered the said knife and dhoti after describing the same in a
mahazar and Ext.P12 is the said mahazar. The relevant portion of the
statement that led to the recovery of the knife and dhoti and recorded in
Ext.P12 mahazar and proved through PW20 is marked as Ext.P12(a).
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According to PW20, the knife and the dhoti recovered at the instance of
the accused were produced before the court after describing in Ext.P23
properly list. The items collected and produced by the Doctor who
conducted the autopsy on the body of the deceased were also seized by
him as per Ext.P26 mahazar and produced before the court as per
Ext.P27 property list. The forwarding note prepared by PW20 and
produced before the court for facilitating the scientific examination of
the thondi articles recovered in this case is marked as Ext.P28. The FSL
report received after the scientific examination of the material objects in
this case was marked as Ext.P29 through PW20.
12. The Doctor who conducted the autopsy of the body of the
deceased was examined as PW9. According to PW9, on 17.03.2018,
while he was working as Assistant Professor and Assistant Police
Surgeon at Medical College Hospital Kottayam, he conducted
post-mortem examination on the body of the deceased and issued a
postmortem certificate. Ext.P5 is the post-mortem certificate issued by
him. Referring to Ext.P5 postmortem certificate, PW9 deposed of having
noted the following ante-mortem injuries:-
"1) Incised wound 8 x 1.5 cm bone deep obliquely placed
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on back and inner aspect of left leg, its upper left end 10 cm above
ankle. Calcaneal tendon lower part of soleus, flexor digitorum
longus and flexor digitorium longus and flexor hallucis longus seen
cut. Tibialis posterior muscle seen cut partially. The posterior tibial
artery and fibular artery were cut. A superficial cut 0.6 x 0.2 x 0.2
cm seen on back aspect of tibia.
2) Incised wound 7x2 cm, bone deep obliquely placed
on back of right leg, its lower inner end 5cm above ankle.
Calcaneal tendon, lower part of soleus, flexor digitorum longus and
flexor hallucis longus seen cut. Tibialis posterior seen partially cut.
The posterior tibial artery and fibular artery seen cut.
3) Abrasion 3x0.6 cm, obliquely placed on left side back
of chest, its upper outer end 7 cm below top of shoulder and 6.5
cm outer to midline.
4) Abrasion 1 x 0.5 cm on right side of back of chest, 8
cm outer to midline and 24 cm below top of shoulder.
5) Multiple small abrasions over an area 3x2 cm on right
side of back of chest 12cm outer to midline and 27cm below top of
shoulder.
6) Abrasion 1.2x0.6 cm, horizontal, on left side of back
of trunk, its inner end 13cm outer to midline and 4cm below top of
hip bone."
Referring to Ext.P5 postmortem report, PW9 opined that the
death was due to the incised injuries sustained to the legs. The Doctor
further opined that the injury Nos.1 and 2 are fatal injuries and sufficient
to cause death in the ordinary course of nature.
13. This case is based on circumstantial evidence as there is no
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direct evidence to prove the occurrence. The absence of direct evidence
necessitates that, the prosecution must demonstrate a clear and
compelling chain of circumstances that proves the accused's involvement
in the privy of the offence. Therefore, the pivotal issue to be addressed
in this case is what are the circumstances relied on by the prosecution,
and have they been convincingly established? Furthermore, it must be
verified if those circumstances are proved whether those proven
circumstances will unerringly point towards the guilt of the accused.
14. Before delving into the details of the circumstantial
evidence presented in this case by the prosecution it is essential to
examine the proof and guidelines governing the evaluation of such
evidence.
15. In Sarad Birdhichand Sarda v. State of Maharashtra
[AIR 1984 SC 1622] the Hon'ble Apex Court discussed the nature,
character, and essential proof required in a criminal case which rests on
circumstantial evidence alone and held as under:
(i) The circumstances from which the conclusion of guilt is to
be drawn should be fully established;
(ii) The facts so established should be consistent only with the
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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;
(iii) The circumstances should be of a conclusive nature and
tendency;
(iv) They should exclude every possible hypothesis except the
one to be proved; and
(v) 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.
16. A similar view has been reiterated by the Apex Court in
Bodh Raj alias Bodha v. State of Jammu and Kashmir [AIR 2002
SC 3164], State of Uttarpradesh v. Satish [AIR 2005 SC 1000] and
Subramaniam v. State of Tamilnadu [(2009) 14 SCC 415].
17. In cases built upon circumstantial evidence a complete and
unbroken chain of evidence is a requisite. This chain must inevitably
lead to the conclusion that the accused, and none other than, could
have committed the offence. In other words, to sustain a conviction,
circumstantial evidence must be comprehensive and incapable of
explanation of any hypothesis other than the guilt of the accused. Thus,
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such evidence must not only be consistent with the accused's guilt but
also inconsistent with his innocence.
18. Keeping in mind the above principles, the crucial question in
the case on hand is whether the prosecution has fully and exhaustively
established the circumstances relied upon to prove the charge levelled
against the accused. Furthermore, it must be ascertained whether
these circumstances lead inexorably to the conclusion of the accused's
guilt, to the exclusion of any other plausible explanation including
innocence.
19. The main evidence/circumstance relied upon by the
prosecution to prove the accused's guilt is that in the wee hours of the
alleged date of the incident, at 12.30 a.m., the accused was seen
walking towards his house, from the courtyard of PW1's house. Notably,
the prosecution's case is that the deceased was murdered on 17.03.2018
at some time between 1.30 a.m. and 7.00 a.m. inside the work area of
the house of PW1. PW1 testified that on 17.03.2018 at 1.00 a.m., while
she woke up from sleep upon hearing her dog barking, and when she
peeked through the window, she saw the accused walking from her
courtyard towards the accused's house which is situated on the eastern
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side of her house. PW1 further stated that, thereafter in the morning at
7.00 a.m., she found her relative Sankaran, the deceased, lying dead
inside the work area of her house where he had been sleeping. It is
established through PW1's evidence that the deceased would often sleep
in the work area of her house. The evidence of PW1 that the accused
was found walking from her courtyard in the wee hours of the incident
and the deceased was found dead in the morning subsequently in the
work area of PW1's house is a significant and compelling circumstance
pointing to the guilt of the accused. However, the reliability and
convincing nature of PW1's testimony are crucial in this regard.
20. Therefore, the primary question to be addressed in this
case is whether the evidence of PW1 is reliable. Notably, the evidence
of PW1 as well as that of other independent witnesses establishes that
the deceased was a relative of PW1. By a catena of judicial
pronouncements, it is well settled that, relationship alone is not a
criterion to discredit the evidence of a witness after branding such a
witness as an interested witness particularly when there is no material
to suggest that the witness had any motive or animosity towards the
accused to falsely implicate him.
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21. It is an age-old adage that 'men may lie but circumstances
will not'. But when the circumstances were presented through the
medium of a witness, the reliability of that witness must be scrutinised
with utmost care. If there is anything to suggest that the witness
harbors a motive to implicate the accused, his evidence cannot be
treated as gospel truth. This is particularly so when there is a lack of
corroboration from other evidence. In the present case, the evidence of
PW1 reveals that she was at loggerheads with the accused prior to the
incident. To a definite suggestion put by the learned defence counsel,
PW1 responded that "ഞാനും പ്രതിയും തമ്മിൽ വൈരാഗ്യം ഉണ്ടെന്നു പറഞ്ഞത്
ശരിയാണ്". Furthermore, in her testimony, PW1 alleged a series of
untoward acts committed by the accused against her. According to her,
prior to the incident in this case, the accused hacked on the neck of a
goat fostered by her and also kicked her three puppies and killed them.
PW1 also stated that she lodged a complaint against the accused with
the Police regarding those incidents. In short, the evidence of PW1
itself demonstrates that she has an axe to grind against the accused.
22. Notably, when the accused was questioned under Section
313 of the Cr.P.C., he alleged that PW1, his sister-in-law, harbored
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animosity towards him. He claimed that this animosity stemmed from
the fact that he had discovered certain matters relating to PW1, which
he should not have been privy to, and had subsequently disclosed this
matter to his wife and brother-in-law. As a result, they had confronted
PW1. Furthermore, the accused stated that he had constructed a house
in the property which he got as his wife's share, which PW1, his wife's
sister disliked.
23. We do agree that though the accused canvassed a case as
stated above when he was questioned under Section 313 of the Cr.P.C.,
no materials have been produced from his side to substantiate his case.
Nonetheless, the evidence of PW1 itself reveals a history of animosity
between the accused and the deceased. Therefore, the solitary
testimony of PW1 that she saw the accused walking from the courtyard
of her house in the wee hours prior to the incident in this case cannot
be relied upon without corroborating evidence. Consequently, the said
circumstance relied upon by the prosecution stands unestablished and
therefore, it is not suffice to prove the accused's complicity in the
commission of the offence.
24. A close scrutiny of the evidence adduced by the prosecution
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reveals a strenuous effort to portray the accused as a person with
criminal tendencies. PW1 testified about several incidents including the
accused hacking the neck of her goat and killing her puppies.
Additionally, PW1 deposed that prior to the incident in this case, the
accused had hacked the left hand of his brother's wife, and in the case
registered with respect to the said incident, the accused was convicted.
Apart from the oral evidence of PW1, no evidence was adduced from the
side of the prosecution to prove those incidents about which PW1 had
deposed. Moreover, no documentary evidence was produced by the
prosecution to prove that the accused was a convict. We have already
found that the evidence of PW1 could not be believed as such since she
was at loggerheads with the accused prior to the incident in this case,
creating a possibility of false implication. For the sake of argument,
even if it is admitted that the appellant is a person of bad character, we
are at a loss to understand how the same would help the prosecution to
prove the guilt of the accused in this case particularly when in criminal
proceedings the fact that the accused person has a bad character is
irrelevant and cannot be proved. In the Indian system of law, an
accused starts with a presumption of innocence, his bad character is not
relevant unless he gives evidence of good character in which case, by
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way of rebuttal, evidence of bad character may be adduced. In short, in
the instant case, the character of the accused has no relevance at all
and the same will not help the prosecution to prove the charge levelled
against him.
25. Another material relied on by the prosecution to prove the
complicity of the accused in the commission of the offence, is the
alleged recovery of the weapon of the offence, MO1, purportedly made
on the strength of the disclosure statement given by the accused. We
do agree that in view of Section 27 of the Indian Evidence Act when a
fact is discovered in consequence of a disclosure statement made by an
accused, so much of the information which distinctly led to the discovery
of that fact can be proved against the accused. In the case on hand,
when the Investigating Officer (PW20) was in the box, he categorically
deposed that, MO1, the weapon of offence, was recovered solely on the
strength of the disclosure statement made by the accused. According to
PW20, it was as led by the accused, he reached the accused's house,
and from there he recovered the MO1 knife as the same was taken and
produced by the accused from a concrete almirah inside the kitchen of
the accused's house. The relevant portion of the confession statement
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given by the accused, which is noted in Ext.P12 recovery mahazar and
proved through the investigating officer is separately marked as
Ext.P12(a). We are of the view that, the said recovery will lend some
support to the case of the prosecution. Another circumstance relied on
by the trial court to enter into a finding of guilt against the accused is
that, a few hours prior to the incident, the deceased showered abuses
against the accused by standing in the courtyard of PW1's house, where
the accused was engaged in masonry work at PW2's house. Moreover,
PW2 testified that upon hearing the utterance of filthy words, she asked
the deceased to stop it, and then the accused told her that "ചേച്ചി ഒന്നും
മിണ്ടണ്ട. അവനുള്ള പണി ഞാൻ കൊടുത്തുകൊള്ളാം." It is apparent that in the
impugned judgment of conviction, the trial court has placed heavy
reliance on the said statement allegedly made by the accused to PW2.
However, in our considered view, the accused made such a statement
during the course of a previous quarrel by itself is not sufficient to fasten
criminal liability on the accused. When a person hears filthy language or
abuses from another, he may instinctively respond with comments or
retaliatory statements. However, such reactions, made in the heat of
moments, are not sufficient to justify the conclusion that the person will
later act upon his words. Therefore, we have no hesitation in holding
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that no much significance can be attributed to the aforementioned
statement allegedly made by the accused while the deceased aired
verbal abuses against the accused.
26. The upshot of the above discussion is that the prosecution
has failed to convincingly prove the circumstances relied upon to
establish the accused's guilt. Although the recovery evidence stands
established, it is a well-settled law that, the recovery evidence, by itself,
is not sufficient to sustain a conviction. Furthermore, in this case, there
is no direct evidence to prove that the seized weapon was the one used
in the commission of the offence, as there are no eyewitnesses to
corroborate this fact. Consequently, the recovery of the weapon under
Section 27 of the Evidence Act also pales into insignificance. Moreover,
in cases relying on circumstantial evidence the prosecution must
establish a complete and unbroken chain of circumstances, which must
be incompatible with the innocence of the accused. In the present case,
the circumstances proven are feeble and do not point to the accused's
guilt thereby failing to exclude the possibility of his innocence.
In the result, the appeal is allowed. The judgment of conviction
and order of sentence passed against the appellant is set aside and he is
acquitted. He shall be set at liberty forthwith from the prison concerned
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if his continued detention is not required in connection with any other
case. The Registry shall communicate this judgment forthwith to the jail
Superintendent concerned, where the appellant is undergoing
incarceration.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd/DCS
