Kerala High Court
Akkantappa@Kullan vs State Of Kerala on 12 March, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
Crl.Appeal No.12 of 2021 1
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
WEDNESDAY, THE 12TH DAY OF MARCH 2025 / 21ST PHALGUNA, 1946
CRL.A NO. 12 OF 2021
CRIME NO.441/2017 OF VIDYA NAGAR POLICE STATION, KASARAGOD
AGAINST THE JUDGMENT DATED 30.10.2019 IN SC NO.363 OF
2018 OF ADDITIONAL SESSIONS COURT - II, KASARAGOD ARISING OUT
OF THE ORDER DATED 26.03.2018 IN CP NO.36 OF 2018 OF JUDICIAL
FIRST CLASS MAGISTRATE COURT-I ,KASARAGOD
APPELLANT/ACCUSED NO.1:
AKKANTAPPA@KULLAN
AGED 30 YEARS
S/O.AYYAPPA, C.748/19, CENTRAL PRISON, KANNUR.
BY ADV V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENT/COMPLAINANT:
STATE OF KERALA
X
OTHER PRESENT:
SRI RENJITH T R, SR. PP.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
05.03.2025, THE COURT ON 12.03.2025 DELIVERED THE FOLLOWING:
Crl.Appeal No.12 of 2021 2
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RAJA VIJAYARAGHAVAN V,
&
P.V.BALAKRISHNAN,JJ.
-------------------------------------
Crl.Appeal No.12 of 2021
---------------------------------
Dated this the 12thday of March 2025
JUDGMENT
P.V.BALAKRISHNAN,J
This appeal is filed by the first accused in SC No.363/2018
on the files of the Additional Sessions Court-II, Kasaragod
challenging his conviction and sentence passed under Section 302
IPC.
2. The prosecution case is that on 6/8/2017 at about 6.30
pm the accused two in number, in furtherance of their common
intention to murder Rangappagaji, hit him on his chest using a
laterite stone causing fractures on his ribs and resulting in his
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death. It is alleged that the motive for committing the act is the
deceased demanding back the money borrowed by the first
accused. It is also alleged that after commission of the crime, the
first accused misappropriated the mobile phone of the deceased.
Hence, the prosecution alleged that the accused have committed
the offences punishable under Sections 302 & 404 read with
section 34 IPC.
3. On appearance of the accused before the trial court,
charges were framed against them for afore offences, to which
they pleaded not guilty. Thereafter, from the side of the
prosecution, PW1 to PW24 were examined and Exhibits P1 to P31
documents and MO1 to MO27 were marked. On questioning under
Section 313 Cr.P.C, the accused denied all the incriminating
circumstances appearing against them in evidence and contended
that they are innocent. The first accused stated that he is not
having any connection with the alleged murder and he has been
falsely implicated in the case. Even though the accused were called
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upon to enter their defence, no evidence was adduced from their
side. The trial court, on an appreciation of the evidence on record,
found the second accused not guilty of the offences alleged against
him and acquitted him. The trial court also acquitted the first
accused of the offence punishable under section 404 read with
section 34 IPC. But, it found the first accused guilty of committing
an offence punishable under Section 302 IPC and convicted him
thereunder. The first accused was sentenced to undergo
imprisonment for life and to pay a fine of Rs.1,00,000/- under
Section 302 IPC. In case of default, he was ordered to undergo
rigorous imprisonment for a period of one year.
4. The learned Counsel for the appellant Adv. V.A.Johnson
contended that the prosecution has not proved the entire chain of
circumstances relied on by it to reach a conclusion of guilt against
the accused. He submitted that the trial court has also erred in
applying the last seen theory to the present case since, the
prosecution has not even established the exact date and time
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when Rangappagaji died. He contended that the evidence of PW 11
and PW16 are mutually contradictory and are not reliable at all. He
argued that the prosecution has not proved the recovery of MO5
and that it belonged to the deceased. Hence, he prayed that this
appeal may be allowed.
5. Per contra, learned Public Prosecutor Adv.Ranjith T.R.
contended that, prosecution has proved its case beyond
reasonable doubt. He argued that the evidence of PW8,PW11 and
PW16 would clearly show that the deceased was last seen with the
accused just before his death and the appellant has not offered
any explanation as to how the deceased sustained injuries and
died. He submitted that from the evidence of PW12 coupled with
Exts.P7 and P8, the date and time of death of Rangappagaji can be
deduced to be around 6.30 pm on 6/8/2017, the time when the
afore witnesses have seen the accused and the deceased together.
He argued that the recovery of MO5 mobile phone belonging to the
deceased at the instance of the appellant also clinches the case
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against him. Hence, he prayed that this appeal may be dismissed.
6. Before delving into the evidence let in by the prosecution,
it would be apt to discuss the material evidence in this case. PW2
is the Panchayat member, who discovered the decomposed body
of the deceased in a lonely place near the National Highway at
Chattanchal on 9/8/2017 and lodged Ext.P3 FIS. PW5 is the father
of the deceased, who identified the body in the place of occurrence
on the basis of the tattoo marks on the right and left hands of the
body. He also stated that the accused has two phone numbers,
one ending with "68" and the other ending with "81".
7. PW8 is a person who is running a way side eatery near the
place of occurrence. He deposed that the deceased used to come
to his shop and about four days before his death, he had come to
his shop. He is also acquainted with the first accused and on the
day, when he came to know about the death of Rangappagaji, he
had seen the first accused going to Cherkala Bus stand. He also
had seen the first accused and the deceased regularly going
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towards the place where Rangappagaji was found dead.
8. PW10, who is running a shop by name Manjunatha Seva
Kendra, deposed that he had handed over a mobile phone of
Huawei brand to the police and had signed in Ext.P6 mahazar at
the time. He identified the mobile phone as MO5 and stated that
he had paid Rs.500/- as consideration for purchasing it. He also
stated that he is not sure whether it is the first accused who had
sold the phone to him.
9. PW11 is a driver of a lorry used for transporting buffaloes.
He deposed that he had acquaintance with both the deceased and
the accused and on 6/8/2017 at about 6 pm near Cherkala Mosque
he had seen the deceased, followed by the accused going up the
hill. At that time, one of them was holding a water bottle in his
hand and the other was holding a packet. Before 7.30 pm, he saw
both the accused returning, but did not see the deceased. It is two
months thereafter, when he came back to his native place, he
came to know about the death of Rangappagaji.
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10. PW12, is the doctor who conducted the postmortem
examination of deceased Rangappagaji and issued Exts.P7 and P8
certificates. He deposed that at the time of examination, he had
noted two ante mortem injuries and one among them was a
contusion of the chest muscle on the left side of the front of the
chest; underneath, the 2 to 7 ribs were found fractured at their
angles. Tattoo marks were also seen in the right hand and front of
the right forearm. He opined that the deceased died of blunt
violence sustained to the chest. He also stated that he visited the
scene of occurrence on 13/8/2017 and on 20/11/2017 the
investigating officer had shown him three stones which he
identified as MO6 series. He stated that the big stone (MO6) is not
the weapon in this crime and it is either MO6(a) or MO6(b) which
had caused the injuries sustained by the deceased. He further
stated that the injuries are sufficient to cause death in the ordinary
course of nature and death might have occurred definitely two
days back from the date of postmortem and it may be two to four
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days.
11. PW16 is a person acquainted with both the deceased and
the accused and who used to sell liquor to them and to other guest
workers. He deposed that he had last seen the deceased on
6/8/2017 at about 5.45 pm. While he was consuming liquor sitting
alone on the top of the hill, the deceased came there and
requested a drink, which he refused. At that time, he saw both the
accused coming with liquor and the deceased went with them in
between a mound of earth lying on the western side . Thereafter,
he heard a cacophony from there and the same continued till he
returned at 6.30 pm. In his cross examination, he stated that he
did not know whether there was anyone else at that place and that
many people used to come there to consume liquor.
12. PW21 is the police officer, who conducted a part of the
investigation. He registered Ext.P14 FIR and went to the place of
occurrence and seized MO7 to MO10 articles from near the body.
Thereafter, he prepared Ext.P5 inquest and searched the room of
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the deceased and seized MO1 to MO4, after preparing Ext.P4. He
also seized MO11 to MO27 articles from the body of the deceased
and forwarded them to the court as per Exts.P15 and P16 property
lists. He also forwarded the articles collected by the Scientific
Assistant as per Ext.P17 property list.
13. PW22 is the scientific officer, who visited the place on
10/7/2017 and collected samples. She took samples from the
stains in the stones, packed it and handed it over to PW21.
14. PW24 is the investigating officer who completed the
investigation and laid the charge. He deposed that on 22/9/2017
at about 3.30 pm he prepared Ext.P2 scene mahazar and
thereafter, collected Ext.P11 photos by preparing Ext.P20
mahazar. On 12/11/2017 at about 8.30 pm, he arrested the
accused after preparing Ext.P21 to P24 documents. On the basis of
Ext.P26 confession, he recovered MO5 mobile phone by preparing
Ext.P6 seizure mahazar. Thereafter, he also seized Ext.P13 CDR of
the mobile phone used by the deceased as per Ext.P28. He further
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prepared and forwarded Ext.P29 forwarding note and received
Ext.P31 chemical analysis report.MO6 series stones were
forwarded to the court as per Ext.P30 property list.
15. The materials on record go to show that the prosecution
is heavily relying upon the last seen theory and the recovery of a
mobile phone belonging to the deceased at the instance of the first
accused to reach a conclusion of guilt against him. Before
evaluating the evidence, we feel that it would only be appropriate
to discuss the settled principles of law on the point of last seen
together theory. The last-seen theory comes into play where the
time gap between the point of time when the accused and the
deceased were seen last alive and when the deceased is found
dead is so small that the possibility of any person other than the
accused being the author of crime becomes impossible. It would
be difficult in some cases to positively establish that the deceased
was last seen with the accused when there is a long gap and
possibility of other persons coming in between exists. In the
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absence of any other positive evidence to conclude that the
accused and the deceased were last seen together, it would be
hazardous to come to a conclusion of guilt in those cases.[See
Ganpat Singh v. State of Madhya Pradesh [(2017) 16 SCC
353] and Bodhraj v. State of J & K [(2002) 8 SCC 45]. In
Kanhaiya Lal v. State of Rajasthan [(2014) 4 SCC 715], the
Apex Court has also held that:
"The circumstance of last seen together does not by itself and
necessarily lead to the inference that it was the accused who
committed the crime. There must be something more
establishing connectivity between the accused and the crime.
Mere non-explanation on the part of the appellant, in our
considered opinion, by itself cannot lead to proof of guilt against
the appellant".
"The theory of last seen--the appellant having gone with the
deceased in the manner noticed hereinbefore, is the singular
piece of circumstantial evidence available against him. The
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conviction of the appellant cannot be maintained merely on
suspicion, however strong it may be, or on his conduct. These
facts assume further importance on account of absence of proof
of motive particularly when it is proved that there was cordial
relationship between the accused and the deceased for a long
time. "
16. Keeping in mind the afore principles of law, we will now
appreciate the evidence on record. In order to prove the last seen
together theory, the prosecution is relying upon the testimonies of
PW11 and PW16. Evidence of PW11 is to the effect that sometime
after 6 pm, on 6.8.2017, he had seen the deceased, followed by
both the accused going towards the hill. At that time, one of them
was having a water bottle and the other was having a packet in
their hands. Before he returned from the place, which is at about
7.30 pm, he saw the accused returning but did not see the
deceased. Now coming to the evidence of PW16, his evidence is to
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the effect that at about 5.45pm, on 6/8/2017 while he was sitting
on top of the hill consuming liquor, the deceased had approached
him. It is also his version that at that time both the accused came
there with liquor and the deceased went along with them and sat
in between a mound of earth situated on the western side. He also
stated that thereafter he heard a commotion from that place,
which continued till he left the place at 6.30 pm. His evidence also
reveals that he is not sure as to whether any other persons were
there at that place at the relevant time and also that a lot of
people come to that place for drinking. Now, at the outset itself, it
can be seen that the evidence of PW11 and PW16 is not consistent
with regard to the time when the deceased and the accused were
allegedly found together. Even though PW11 says that it is after 6
pm, he had seen the deceased, accompanied by the accused going
towards the hill, PW16 would say that it is at 5.45 pm, he had
seen the deceased with the accused on the top of the hill. It has
also come out in the evidence of PW16 that he had left the place,
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(which admittedly is a place accessible to anyone), at about 6.30
pm and also that he is not sure as to whether any other persons
were there with the deceased and the accused at that time.
Similarly, the evidence of PW11 would go to show that he had also
left the place at about 7.30 pm. If so, it cannot be stated for sure
as to what had transpired after PW11 and PW16 left the place,
thus leaving open all possibilities. Hence, merely because of the
fact that PW11 did not witness the deceased coming back along
with the accused, it cannot be inferred that the accused have
returned after killing the deceased. This is more so, considering
the fact that evidence is lacking to prove the exact date and time
when Rangappagaji was killed. It is to be taken note that, even
though the evidence of PW12 coupled with Exts.P7 and P8 would
go to show that the cause of death of Rangappagaji is homicidal, it
does not in any manner help the court to decide the date and time
of his death. The evidence of PW12 only shows that death could
have occurred at any time during the past two to four days from
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the date of postmortem examination, which was on 10/8/2017.
This, in turn, means that the death could have taken place at any
time on 6/8/2017 or 7/8/2017. In such circumstances, merely
because of the fact that PW11 and PW16 had seen the deceased in
company of the accused on the evening of 6/8/2017, it cannot be
stated that the accused were the persons who were last seen with
the deceased before his death. At this juncture, it is to be kept in
mind that the body of Rangappagaji was not discovered
immediately thereafter, but only on 9/8/2017. In such
circumstances, it also cannot be stated that the lapse of time
between the point when the accused and deceased were seen
together and when the deceased was found dead is so minimal so
as to exclude the possibility of a supervening event involving the
death at the hands of another. Further, in the case on hand the
deceased was having a cordial relationship with the accused at the
relevant time and the prosecution has not even adduced a
semblance of evidence to prove the motive for the commission of
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the crime. Hence, in the light of the afore facts and circumstances,
we are of the view that the principle of last seen together theory is
not at all applicable in the present case and the same cannot be
used to rope in the accused in this crime.
17. Now what remains is the recovery of MO5 mobile phone
allegedly belonging to the deceased, at the instance of the first
accused. But it is a settled law that even if such a recovery exists,
the same itself is not a ground to convict an accused in the
absence of other credible substantive evidence. (See Thankayyan
v. State of Kerala [1994 SCC (Cri) 1751] and Manoj Kumar
Soni v. State of Madhya Pradesh [2023 SCC OnLine SC 984].
Further, in the present case, it is to be seen that there is no
convincing evidence to prove that MO5 in fact belongs to the
deceased or that it is the first accused who had sold MO5 to PW10.
No documentary evidence has been adduced to prove the
ownership of MO5 with the deceased and the details of phone calls
and messages allegedly made from MO5 and as spoken to by
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PW24, has not been proved as required by law. Apart from above,
there is also no convincing evidence to show that the number
'9037513192' belongs to the deceased and the evidence of PW15
would go to show that it is he who had taken the number and had
given it to one Nagaraj and not to the deceased. If so, we are of
the view that the recovery of MO5 at the instance of the appellant
will not in any manner help the prosecution.
18. The upshot of the afore discussions on evidence is that
the prosecution has utterly failed to prove that the appellant has
committed murder of Rangappagaji. The trial court has not
properly appreciated the evidence on record and it has arrived at a
wrong conclusion of guilt against the accused. This in turn means
that this appeal is only liable to be allowed, thereby setting aside
the conviction and sentence passed against the appellant.
In the result, this appeal is allowed and the conviction and
sentence passed against the appellant/first accused in SC
363/2018 under Section 302 IPC, by the Additional Sessions
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Court-II, Kasaragod is set aside and the appellant /first accused is
set at liberty.
Sd/-
RAJA VIJAYARAGHAVAN V
Judge
Sd/-
P.V.BALAKRISHNAN
dpk Judge
