Kerala High Court
State Of Kerala vs Parimal Sahu on 31 October, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:82014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 31ST DAY OF OCTOBER 2025 / 9TH KARTHIKA, 1947
DSR NO. 1 OF 2021
CRIME NO.242/2018 OF PUTHENVELIKKARA POLICE STATION,
ERNAKULAM
AGAINST THE ORDER/JUDGMENT DATED 08.03.2021 IN SC
NO.72 OF 2019 OF ADDITIONAL DISTRICT COURT, NORTH PARAVUR
ARISING OUT OF THE ORDER/JUDGMENT IN CP NO.6 OF 2018 OF
JUDICIAL FIRST CLASS MAGISTRATE COURT-III, NORTH PARAVUR
COMPLAINANT:
STATE OF KERALA
BY SMT.AMBIKA DEVI S., SPECIAL PUBLIC PROSECUTOR
RESPONDENT:
PARIMAL SAHU
25/2018, S/O.GIVINDA SAHU, NEAR ANAND NURSERY,
HAGRA PULLI,SAMOGIRI POLICE STATION,
NOGAW DISTRICT, ASSAM.
BY ADVS.
SMT.MITHA SUDHINDRAN
SMT.SHREYA RASTOGI
SMT.NADIA SHALIN
SMT.MOULIKA DIWAKAR
SRI.RIJI RAJENDRAN
SMT.BHAIRAVI S.N.
THIS DEATH SENTENCE REFERENCE HAVING BEEN FINALLY HEARD
ON 30.10.2025, ALONG WITH CRL.A.974/2022, THE COURT ON
31.10.2025 DELIVERED THE FOLLOWING:
DSR No.1/2021
&
Crl.A.No.974/2022
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 31ST DAY OF OCTOBER 2025 / 9TH KARTHIKA, 1947
CRL.A NO. 974 OF 2022
AGAINST THE ORDER/JUDGMENT DATED 08.03.2021 IN SC
NO.72 OF 2019 OF ADDITIONAL SESSIONS COURT (ADHOC-III),
NORTH PARAVUR
APPELLANT/ACCUSED:
PARIMAL SAHU
AGED 29 YEARS,
NEAR ANAND NURSERY, HAGRA PULLI,
SAMOGIRI POLICE STATION, NOGAW DISTRICT,
ASSAM, INDIA, PIN - 782141
BY ADVS.
SMT.MITHA SUDHINDRAN
SMT.SHREYA RASTOGI
SMT.NADIA SHALIN
SMT.MOULIKA DIWAKAR
SRI.RIJI RAJENDRAN
SMT.BHAIRAVI S.N.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
BY SMT.AMBIKA DEVI S, SPL.G.P.
ATROCITIES AGAINST WOMEN AND CHILDREN AND
WELFARE OF W AND C)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
30.10.2025, ALONG WITH DSR.1/2021, THE COURT ON 31.10.2025
DELIVERED THE FOLLOWING:
DSR No.1/2021
&
Crl.A.No.974/2022
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"CR"
JUDGMENT
Jobin Sebastian, J.
The above Death Sentence Reference (DSR) and the Crl.
Appeal arises from the judgment dated 08.03.2021 of the Additional
Sessions Judge, North Paravur, in S.C.No.72/2019, whereby the
appellant/accused was found guilty of the offences punishable under
Sections 449, 376A, 302, and 201 of the IPC and convicted. The
accused was sentenced to rigorous imprisonment for various terms
and a fine for the offences punishable under Sections 449 and 201 IPC,
and sentenced to imprisonment for life for offence punishable under
Section 302 IPC. Furthermore, the accused was sentenced to death
and a fine for the offence under Section 376A IPC.
2. The case of the prosecution, as disclosed in the final
report, can be epitomised as follows:
During the period of occurrence in this case, the deceased, a
widow, was residing with her intellectually disabled son (CW2), in a
house bearing No.XII/740 of Puthanvelikkara Grama Panchayat. The
accused, a migrant labourer from Assam, as well as a few other
migrant labourers, were residing in the rooms adjacent to the house of
the deceased on a rental basis. The deceased was the landlady of the
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said house. While so, between 11.00 p.m. on 18.03.2018 and 1.30 a.m.
on 19.03.2018, the accused, with the intent to commit rape and
murder, collected a granite stone from the courtyard of the house of
the deceased and, carrying the same, knocked at the front door of the
said house. When the deceased opened the front door, the accused
trespassed into the hall of the said house and, with the intention to
render her unconscious before killing her, he struck her on the left
side of the neck, causing serious injuries. Upon hearing the
commotion when the deceased's intellectually disabled son came to
the hall, the accused intimidated him and thereby persuaded him to
remain inside the room. Thereafter, the accused dragged the
deceased, who was in an exhausted state due to the injury inflicted on
her, towards the dining room of the said house and committed rape.
When the deceased attempted to resist, the accused hit her on the
head repeatedly and covered her mouth using his hand, causing
suffocation, and thereby murdered her. Thereafter, the accused, with
the intention to ensure the death of the deceased, dragged her to one
of the bedrooms of the said house and wrapped a cloth around her
neck, forcefully tightened it, and ensured her death. Thereafter, the
accused smeared blood on the T-shirt of the deceased's intellectually
disabled son to mislead the investigation. Thereafter, the accused,
with an intention to cause disappearance of evidence, concealed the
stone in the premises of the said house and washed the blood-stained
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shirt, which was worn by him at the time of the commission of the
offence, which originally belonged to CW36. Hence, the accused was
alleged to have committed the above offences.
3. Upon completion of the investigation, the final report was
laid before the Judicial First Class Magistrate Court-III, North Paravur.
Being satisfied that the case is one triable exclusively by a Court of
Session, the learned Magistrate, after complying with all the necessary
formalities, committed the case to the Court of Session, Ernakulam,
under section 209 of Cr.P.C. The learned Sessions Judge, having taken
cognizance, made over the case for trial and disposal to the Additional
Sessions Court, North Paravur. On appearance of the accused before
the trial court, the learned Additional Sessions Judge, after hearing
both sides under section 227 of Cr.P.C. and upon a perusal of the
records, framed a written charge against the accused for offences
punishable under Sections 449, 376A, 302, and 201 of IPC. When the
charge was read over and explained to the accused, he pleaded not
guilty and claimed to be tried.
4. During the trial, from the side of the prosecution, PW1 to
PW43 were examined and marked Exts.P1 to P51. MO1 to MO24 were
exhibited and identified. A contradiction in the previous statement of
a prosecution witness was marked as Ext.D1. After the completion of
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the prosecution's evidence, the accused was questioned under Section
313 of Cr.P.C., during which he denied all the incriminating materials
brought out in evidence against him. Thereafter, both sides were heard
under Section 232 of Cr.P.C., and since it was not a fit case to acquit
the accused under the said provision, the accused was directed to
enter on his defence and to adduce any evidence that he may have in
support thereof. Thereupon, from the side of the accused, one
document was produced and marked as Ext.D2. However, no oral
evidence was adduced from his side.
5. Thereafter, both sides were heard in detail, and finally, the
learned Additional Sessions Judge found the accused guilty of the
offences punishable under Sections 449, 376A, 302, and 201 of IPC,
and he was convicted and sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs.10,000/- for
offence punishable under Section 449 IPC. In default of payment of
the fine, the accused was ordered to undergo simple imprisonment for
one month. For the offence punishable under Section 302 IPC, the
accused was sentenced to undergo imprisonment for life and to pay a
fine of Rs.1,00,000/- with a default clause to undergo simple
imprisonment for one year. For the offence punishable under Section
376A IPC, the accused was sentenced to death, and it was directed
that the accused be hanged by neck till death and to pay a fine of
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Rs.1,00,000/-. In default of payment of the fine, the accused was
ordered to undergo simple imprisonment for one year. For the offence
punishable under Section 201 IPC, the accused was sentenced to
undergo rigorous imprisonment for three years and to pay a fine of
Rs.10,000/- with a default clause to undergo simple imprisonment for
one month. The substantive sentences of imprisonment were ordered
to be run concurrently. Fine amount, if realised or paid, was ordered
to be given to the guardian of PW4 as compensation under Section
357(1)(b) of Cr.P.C. Aggrieved by the finding of guilt, conviction, and
the order of sentence passed against him, the accused has preferred
the present criminal appeal. Likewise, since the death sentence
imposed upon the accused is subject to confirmation by this Court
under Section 366(1) of Cr.P.C., the DSR has also been placed before
us for consideration.
6. We have heard Smt.Mitha Sudhindran, the learned counsel
appearing for the appellant, and Smt.Ambika Devi, the learned
Special Public Prosecutor on behalf of the State in the Crl.Appeal as
well as in the Death Sentence Reference.
7. This is a case in which a widow aged 60 years who was
residing along with his intellectually disabled son was allegedly
brutally assaulted, raped, and murdered by the accused in the
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intervening night of 18.03.2018 and 19.03.2018. The law was set in
motion on the basis of Ext.P1 FIS given by one of the relatives of the
deceased to PW40, the Sub-Inspector of Police, Puthenvelikkara
Police Station. The FIR registered by PW40 on the strength of the said
FIS was marked as Ext.P1(a).
8. When the first informant who lodged the FIS was examined
as PW1, he deposed that the deceased in this case is his relative.
During the relevant period, the deceased was residing with her
intellectually disabled son. Apart from the said son, the deceased had
a daughter, who was residing abroad along with her husband at the
time of the incident. On 19.03.2018, one of the neighbours of the
deceased, named Kunjappan, came and informed him that something
had happened to his relative, the deceased in this case, and asked him
to reach the house of the deceased. Accordingly, he rushed to the
house of the deceased and found her lying dead inside the house. He
also noticed the deceased's son standing nearby wearing a blue
coloured T-shirt stained with blood. During cross-examination, the
learned defence counsel made a strenuous effort to establish that the
son of the deceased is mentally ill. In that attempt, a specific question
was put to the witnesses, suggesting that the deceased's son was
intellectually disabled and mentally retarded. To this, he categorically
responded that the deceased's son is not mentally retarded, and
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clarified that the deceased's son is capable of understanding things.
9. Another crucial witness examined by the prosecution is
PW3, who is none other than the neighbor of the deceased. On
examination before the court, PW3 deposed that the deceased in this
case had died on 19.03.2018. On that day, while she was inside the
kitchen of her house, the deceased's son approached her and told her
that his mother had sustained something and needed to be taken to
the hospital. Hearing this, PW3 rushed to the house of the deceased,
where she found some others gathered. The front door of the house
was open, and she noticed blood in the hall room as well as on the cot
placed there. Then she asked the deceased's son where his mother
was, and he replied that his mother was inside the AC room. When she
asked where the said room was, he pointed it out. When she
attempted to open the said room, it was found locked. She also noticed
blood in the kitchen area and in the corridor. A little later, the
deceased's son came and brought a key and opened the door. Then
she found the deceased lying beneath the cot in a partially disrobed
condition. Then the deceased's son said that, Mummy is naked and
ran outside the room. Then PW3 came out of the said room and asked
the people present to inform the Police about the incident. At that
time, the deceased's son was seen sitting on a swinging cot, and there
were blood stains on his t-shirt. When she asked him what had
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happened, he responded that "മ നയ റ യ മല മ നലയ ട
ല" ദ (Munna knows, ask him). Moreover, he said that "മ ന ബൾബ
ഊര" (Munna removed the bulb). At that time, Munna (accused) was
there. When the deceased's son repeated that Munna knows
everything, she asked who Munna was. Then, a migrant labourer told
that he is Munna by striking on his chest. Moreover, Munna asked the
deceased's son that "ന അവ ടട ഉണ യ ര ന ല ?" ( Weren't you
there?) in a scolding tune and in Malayalam. PW3 identified the
accused standing in the dock as Munna. During cross-examination,
PW3 deposed that although the deceased's son was intellectually
disabled, he was not mentally retarded. She further clarified that the
deceased's son usually conversed like ordinary people and is capable
of identifying things.
10. The above-discussed evidence of PW1 and PW3 clearly
reveals that neither of them had direct knowledge of the actual
occurrence. However, their testimony will help the prosecution to the
extent of showing that during the relevant period, the deceased was
residing with her son, who was intellectually disabled. From a holistic
appreciation of the evidence adduced in this case, it became evident
that the prosecution primarily relied upon the evidence of the
deceased's son to establish the occurrence alleged. In addition, the
prosecution has also placed reliance on various circumstantial,
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scientific, and recovery evidence to bring home the guilt of the
accused. Before delving into a detailed discussion regarding the
ocular evidence, as well as the other circumstantial and scientific
evidence adduced on the side of the prosecution, it is relevant to
discuss the evidence of the Doctor who conducted the autopsy of the
deceased.
11. The Doctor who conducted postmortem examination on
the body of the deceased was examined as PW21, and the postmortem
certificate issued by her was marked as Ext.P16. A conjoint reading of
the evidence of PW21 and Ext.P16 certificate reveals that thirty-three
antemortem injuries were noted during the postmortem examination
conducted on the body of the deceased. Referring to Ext.P16
certificate, the Doctor opined that the death of the deceased was due
to the combined effect of smothering and head injury. According to
PW21, injury Nos.1 to 6, which are all injuries on the head, are fatal in
nature and sufficient in the ordinary course of nature to cause death.
Likewise, when PW21, the Doctor was confronted with MO4 stone, the
alleged weapon of offence, she opined that injury Nos.1 to 6 could be
caused by using a stone like MO4. The Doctor further deposed that
penetration is possible even without any injury to the vaginal portion if
the woman is married. The above-discussed evidence of PW21,
together with injuries noted in Ext.P16 postmortem certificate, clearly
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and conclusively establishes that the death of the deceased was
homicidal in nature.
12. As mentioned earlier, the solitary evidence relied upon by
the prosecution to prove the occurrence is the evidence of the
deceased's son (PW4). The learned counsel for the appellant, however,
assailed the reliance placed on PW4's evidence mainly on the ground
that PW4 is incompetent to testify due to his intellectual disability.
Therefore, while considering the question whether the evidence of
PW4, the son of the deceased, can be relied upon, given his
intellectual impairment, it is worthwhile to refer to Section 118 of the
Indian Evidence Act, which deals with the question who are all
competent to testify before a court. Section 118 reads as follows:
"118. Who may testify - All persons shall be
competent to testify unless the court considers
that they are prevented from understanding the
questions put to them, or from giving rational
answers to those questions, by tender years,
extreme old age, disease, whether of body or
mind, or any other cause of the same kind".
13. A plain reading of the above provision makes it clear that
every person is presumed to be competent to testify, unless the court
finds that such person is incapable of understanding the question put
to him or giving a rational answer there to due to tender age, old age,
disease, whether of body or mind, or any other cause of the same
kind. Accordingly, before recording the evidence of such a vulnerable
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witness, it is the duty of the trial judge to assess the competence of
such a witness to understand the questions put to him and to provide
coherent and rational answers. Hence, it is always advisable that the
court shall conduct a competency examination, commonly known as
Voir dire test to determine whether the vulnerable witness is capable
of perceiving, remembering, and understanding the duty to speak the
truth before recording the evidence of such a witness.
14. The term " voir dire" translates roughly as "Oath to tell the
truth". The French term "voir" means "that which is true" and the
voir dire test in relation to juvenile witnesses is used to determine
whether that witness is competent to testify in court. S.118 of the
Indian Evidence Act mandates that the court should determine
whether the particular classes of witnesses specified therein are
competent to take the oath or affirmation that precede the testimony
to be given by them. Accordingly, a person must be competent to
testify as a witness before being administered an oath or affirmation,
and this competence is separate from his credibility after being
administered the oath or affirmation. The attempt of the court in a
voir dire test is invariably to determine whether, given the scope of
his intellectual capacity and comprehension, the witness is capable of
providing a rational explanation of what he has observed or heard on
a given occasion.
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15. In a recent judgment of the Supreme Court in Agniraj &
Ors. v. State through the Dy. Superintendent of Police CB-CID -
2025 SCC Online SC 1203, the court after finding that preliminary
questions to understand whether the witness understands the
importance of an oath, were not put to a 10 year old girl, observed
that the trial court had not followed the condition precedent before
examining a minor witness and that before administering the oath,
the trial judge had not satisfied himself that the witness understood
the importance of the oath. Thereafter, after analysing her answers in
cross-examination, the court found that the possibility of the witness
having been tutored could not be ruled out. On similar lines is the
judgment of the Supreme Court in State of MP v Balveer Singh -
2025 (8) SCC 545 where the court opined that under S.118 of the
Evidence Act, it is the duty of a trial judge to conduct a preliminary
examination before recording the evidence of a child witness to
ascertain if the child is able to understand the questions put to him
and that he is able to give rational answers to the questions put to
him. The court went on to hold that the trial judge must record its
opinion and satisfaction that the child witness understands the duty of
speaking the truth and state why he is of the opinion that the child
understands the duty of speaking the truth. The questions put to the
child in the preliminary examination must also be recorded so that the
appellate court can go into the correctness of the opinion of the trial
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court.
16. Keeping in mind the above-mentioned legal principles,
while reverting to the facts of the present case, it is evident that the
prosecution's own case is that PW4, who is the sole witness to the
occurrence, is an intellectually disabled person. Likewise, it is relevant
to note that the Associate Professor of Psychiatrist at Government
Medical College, Ernakulam, who had examined PW4 after the
incident in this case, to assess his mental capacity, was examined
before the trial court as PW23. The certificate issued by him after the
examination of PW4 was marked as Ext.P18. On examination before
the court, referring to Ext.P18 certificate, PW23, the Doctor, testified
that he had examined PW4 at the request of the Police, and that on
such examination, it was found that the IQ level of PW4 was only 47.
In the Ext.P18 certificate, it is stated that PW4 could be categorized as
falling within the range of moderate mental retardation, and that his
mental age is approximately seven and a half years.
17. From a conjoint reading of the evidence of PW23, the
Doctor, and the certificate issued by him, it is evident that PW4 was
having a mental age of 7½ years, though he was biologically 35 years
old at the time of his examination by the Doctor. In such
circumstances, it was always prudent for the trial court to conduct a
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voir dire examination before recording his testimony, in order to
assess whether he was competent to understand the question put to
him and capable of giving rational answers thereto. The learned Judge
ought to have asked preliminary questions to him to ascertain his level
of understanding, and then recorded satisfaction on the basis of such
preliminary interaction, that PW4 was competent to depose as a
witness. However, in the present case, no such competency
examination appears to have been conducted prior to recording the
evidence of PW4. A perusal of the deposition of PW4 demonstrates
that no preliminary questions were put to him by the trial court, and
his deposition was recorded without any recorded satisfaction as to
his competence to testify. The non-conduction of voir dire examination
will certainly create serious doubts regarding the competence of PW4
to depose and the reliability of his version, particularly when a
vulnerable witness like PW4 is inherently susceptible to tutoring.
18. We are not unmindful of the fact that merely because of
the reason that a competency test, though always advisable, has not
been conducted, it may not, in every case, be prudent to discard the
testimony of a vulnerable witness outright. However, in the absence of
such an examination, it becomes the duty of the trial court as well as
the appellate court to scrutinize the evidence of such a witness with
meticulous care and to satisfy their judicial conscience regarding the
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competence of the witness to depose before a court of law.
19. Keeping in mind the above, while coming to the evidence
of PW4, it can be seen that in the chief examination, PW4 had deposed
as follows:
His house is at Puthanvelikara. He studied till the 10th class.
His father, David, is no more, and his mother has also passed away. He
could recollect all events. He had an acquaintance with Munna (the
accused), and he had known him since the time his father was alive.
His mother died on 19.03.2018, which was a festival day at his church.
His mother died because Munna hit her on the head with a granite
stone. Due to the hit, blood started oozing. Thereafter, the accused
took his mother near the dining table. Thereafter, Munna smeared
blood on his shirt. Munna also removed the bulb that was fitted in the
sitout of the house. Munna took his mother to the AC room. In the
morning, he went to the house of Nalini (PW3) and brought her to his
house. Thereafter, he took the key and opened the room. PW4
identified the accused before the court.
20. However, during cross-examination, PW4 admitted that
he did not state to the Police that he saw Munna strike his mother on
the head with a granite stone. This admitted omission pertaining to a
material aspect of the incident would amount to a contradiction. Apart
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from that admitted improvement, the testimony of PW4 in the chief
examination appears on the face of it to be coherent and intelligible.
Yet his testimony during the cross-examination is marred by a lot of
incoherent and unintelligible answers, which materially undermine his
competence to depose as a witness. For clarity, it is necessary to
reproduce the incoherent, unintelligible, and incorrect answers given
by PW4. During cross-examination, PW4 stated that "വ ട ന മ കള ൽ,
! ,
ര ധ ക ഷൻ മ ന, അജ ത പ ടന മ ല ടറ രന ( ത മസ(
ഉണ യ ര ന . ഓമനല ച യ ( ത മസ( ഉണ യ ര ന ". (on the upper
floor of the house, Radhakrishnan, Munna, Ajith, a military man were
residing. One Omana was also residing) The said evidence of PW4 is
established to be incorrect by the evidence of other witnesses who
deposed that the said Radhakrishnan, Munna, and Ajith were residing
on the ground floor of the building situated close to the house of PW4
and not on the upper floor as deposed by PW4. Moreover, during
cross-examination, when a definite question was put to PW4, that
"ആര ണ ക ന ട ച എന പറയ ൻ ഇല0 ൾ പറഞത. (Who told you to
say that Munna (accused) hit with the stone). He replied that "മ ന
ആണ
" പറഞത (it was Munna who said it). Undoubtedly, the said
answer is wholly unintelligible and reflects confusion in his
comprehension.
21. Likewise, during cross-examination, PW4 further deposed
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that "സ(ഭവ( നട ല3 ൾ ഒചയ ( ബഹളവ ( ഉണ യ . ഒച ലകട ണ മ ന
വനത
" (when the incident happened, there was noise and commotion,
and it was on hearing the noise that Munna came.) This version
directly contradicts his earlier statement in the chief examination,
where he had implicated Munna as the assailant. The said statement,
therefore, casts serious doubt on PW4's perceptive capacity as well as
his ability to recollect and narrate events accurately. That apart, in
cross-examination, he deposed that "ല രലപ ക ത ര ൻ മന
ഐസ
" വച (Munna applied ice to stop the bleeding). Even the
prosecution does not allege any such fact. Another statement made by
PW4 during cross-examination was "ഞ ൻ പറഞടത ന ( മജ സല8ടറ
എഴ"ത എട ത . (The Magistrate did not write down what I said).
Likewise, when PW4 was asked during cross-examination why he did
not inform the matter to the neighbours immediately after the
incident, he replied with an answer that " മറന ലപ യ" .(meaning I
forgot). Such incoherent and incorrect responses persuade us to
conclude that the competence of the said witness is seriously in
doubt. Moreover, the fact that PW4, who appeared to withstand chief
examination without much incoherence, gave incoherent and
unintelligible answers during cross-examination strongly suggests
that he was a tutored witness. In these circumstances, the failure of
the trial judge to conduct a voir dire examination prior to the
recording of the testimony of PW4 must be held to be a fatal
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irregularity.
22. As already noted, in the present case, the prosecution
rests its case primarily on the testimony of PW4, the son of the
deceased, who, though biologically 35 years old at the time of giving
evidence, was certified by the doctors as having an IQ of only 47, and
an intellectual capacity equivalent to that of 7½ years old child. He
was cited as an eyewitness to the incident involving his mother, which
the prosecution described as a case of rape and murder, allegedly at
the hands of the accused. What is particularly interesting is that a
voir dire test appears to have been conducted by the JFMC, who
recorded PW4's statement u/s 164 Cr.P.C., although it is trite that the
recording of such statements is not preceded by any oath to be taken
by the maker of the statement. Nevertheless, while the said fact ought
to have been sufficient to alert the trial judge of the need to conduct a
voir dire test before permitting PW4 to testify in court, for reasons
best known to the trial judge, no such test was done. This, in our view,
was a fatality on the facts and circumstances of the instant case, since
a mere perusal of the inconsistencies and irrational answers given by
PW4 during his cross-examination would demonstrate his
incompetence to testify, as also to his vulnerability to tutoring.
23. Since PW4, the sole witness examined by the prosecution
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to prove the occurrence, has been found incompetent to depose, the
crucial question that now arises for consideration is whether the
circumstantial, scientific, and medical evidence adduced in this case
are sufficient to establish the guilt of the accused beyond a
reasonable doubt. One of the main materials relied on by the
prosecution to prove the guilt of the accused is the alleged
extrajudicial confession purportedly made by the accused to two
Doctors who had examined him after his arrest. These Doctors, to
whom the accused is said to have made the confession were examined
as PW17 and PW20. Among them, PW17 was a lecturer in the
department of Dentistry in the Government Medical College,
Ernakulam. In her testimony, PW17 deposed that she had examined
the accused on 19.03.2018, and issued Ext.P13 certificate. According
to her, the history was narrated by the accused himself. According to
PW17, the history stated by the accused was as follows:
"On 18.03.2018, around 11.30 p.m., I entered the house
of the deceased and tried to rape her and hit her several
times on her head with a stone. She then fell down. Then
I dragged her to the next room and tried to rape her. She
attempted to get up, then I tried to apply pressure in and
around the mouth and chin with my hands from behind.
First, I used my left hand, and when she bit on that hand,
I attempted with my right hand. In those attempt, my
right hand was lodged in her mouth, and she bit my
finger. I tried to withdraw the hand forcefully. All this
attempts, she did not have any response. All the injuries
to my hand happened during the incident".
24. The other Doctor, before whom the accused was produced
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by the Police for medical examination after his arrest, was examined
as PW20. During his examination before the court, PW20 deposed that
on 20.03.2018, while he was working as a casualty Medical Officer in
Taluk Headquarters Hospital, North Paravur, he examined the
accused and issued Ext.P15 certificate. According to him, on
examination of the accused, he had noted the following injuries:
1. Four abrasions (linear) on left shoulder which were
scratch mark by nails.
2. Contusion on right ring finger.
3. Contusion on right palm.
4. Contusion on left palm.
5. Contusion on left ring finger.
Furthermore, PW20 testified that the accused himself had narrated
the cause of injury as follows:
"On 18.03.2018, I had an altercation with a lady
while raping".
25. The prosecution places considerable reliance on the
extrajudicial confessions allegedly made by the accused to the two
doctors examined as PW17 and PW20, before whom he was produced
by the police for medical examination following his arrest. It is not in
dispute that the accused was produced before the Doctors
aforementioned while he was in Police custody. It is the case of the
prosecution that the accused had narrated the reasons for the injuries
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detected on his body to the doctors when he was alone with them in
the examination room. The submission, in other words, is that because
there were no policemen in the examination room, the details given by
the accused to the doctors, and deposed to by the said doctors at the
time of their giving evidence during the trial, can be used as
admissible evidence against the accused. Reliance is placed by the
prosecution on the judgments in Ajay Singh v. State of Maharashtra
- 2007 (12) SCC 341; 2009 KHC 470 and 2011 KHC 4108.
26. Per contra, it is the submission of the learned counsel for
the appellant-accused that, as per the clear wording of S.26 of the
Indian Evidence Act, any confession by a person whilst in Police
custody cannot be used against him. In the light of the recent
pronouncements of the Supreme Court that have enlarged the scope of
the phrase "custody" to embrace even such situations where an
accused is not formally arrested, but his freedom of movement is
nevertheless restrained by the police, the mere fact that the policemen
who brought him to the hospital for medical examination were
standing outside the examination room did not bring him outside the
scope of the phrase 'person whilst in Police custody' for the purposes
of S.26 of the Evidence Act.
27. It is trite that an extrajudicial confession is a weak piece
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of evidence, and it has to be examined by the court with a great
degree of care and caution. The court must be satisfied that it was
made voluntarily and truthfully, and it should inspire the confidence of
the court. The confession should be made voluntarily, and the person
to whom the confession is made should be unbiased and not inimical to
the accused. Such a confession will attain greater credibility and
evidentiary value if it is supported by a chain of cogent circumstances
and is further corroborated by other prosecution evidence. While it has
to be proved like any other fact and in accordance with law, it should
not suffer from any material discrepancies and inherent probabilities
(See: Ajay Singh v State of Maharashtra - 2007 (12) SCC 341;
Sahadevan v State of Tamil Nadu - 2012 (6) SCC 403; Nikhil
Chandra Mohan v State of West Bengal - 2023 (6) SCC 605;
Chandrabhan Sudam Sanap v State of Maharashtra -2025 (7)
SCC 401).
28. In the instant case, the question is whether the alleged
confession made by the accused to the doctors can be treated as an
admissible extrajudicial confession at all. As already noticed, it is not
in dispute in the instant case that the accused was taken to the doctors
for medical examination whilst he was in Police custody. As his being
in Police custody was never in dispute and stood proved, his confession
to the doctors or to any other person whilst in Police custody, is hit by
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Section 26 of the Evidence Act and is inadmissible against the accused
(See: Kishore Chand v State of Himachal Pradesh - 1991 (1) SCC
286; State of A.P v Ganguly Satya Murthy - 1997 (1) SCC 272)
29. Another material circumstance relied on by the
prosecution to establish the guilt of the accused is the recovery of
MO4, the stone, alleged to be the weapon of offence, said to have been
effected on the strength of a disclosure statement made by the
accused. Undisputedly, under Section 27 of the Indian Evidence Act, if
a fact is discovered in consequence of information received from a
person accused of an offence while in Police custody, so much of the
that information, which distinctly lead to the discovery of the said fact,
can be proved against him, and the same is a valuable piece of
evidence which can be used against him. The said provision contained
in the Indian Evidence Act is an exception to the general rule that
confessions made to a Police Officer are inadmissible in evidence.
Significantly, the fact discovered under Section 27 is not limited
merely to the recovery of a physical object, but extends to the place
from which it is produced and the knowledge of the accused regarding
its location. Notably, the discovered fact includes the objects, their
location, and the accused's knowledge of them.
30. The rationale behind the partial lifting of the prohibition
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contained in sections 25 and 26 of the Indian Evidence Act in respect
of the confessions made to a Police officer is that the fact discovered
affords the guarantee of truth of that portion of the statement. The
admissibility of such a part of the confession is based on the doctrine
of confirmation by subsequent events. This doctrine rests on the
principle that if any fact is discovered on the strength of any
information obtained from an accused, such discovery itself lends
assurance to the truthfulness of that part of the information which
distinctly relates to the discovered fact. In other words, if an accused
in his confession discloses a fact, which is not in the knowledge of
police earlier or from a prior source, but subsequently gets confirmed
through discovery, so much of such information as relates distinctly to
the fact thereby discovered, may be proved against the accused and
can therefore be safely allowed to be admitted in evidence as an
incriminating circumstance aganist the accused. The information given
by the accused, which was not known to the police earlier, exhibits the
knowledge or mental awareness of the accused, as to its existence.
However, it is only when the materials on record clearly establish that
the discovery was effected solely on the strength of the disclosure
statement made by the accused, that the said statement, to the extent
permissible under Section 27, can be used against him.
31. Keeping in view the above principle, the evidence of the
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Investigating Officer, who is examined as PW43, is scrutinized, it can
be seen that he effected the arrest of the accused on 19.03.2018 at
9.45 p.m. According to PW43, during the course of the interrogation,
the accused had given a statement that " എടന ടക ണ ലപ യ ൽ
ഉപലയ ഗ ച ക വച സല( ഞ ൻ ക ണ ച തര (". (If I am taken, I will
show you the place where the stone was put). PW43 further deposed
that on the basis of the said statement and as led by the accused, he
reached the compound of the house where the incident in this case
had occurred, and the accused took a stone from a spot situated 7.60
meters away from the north-eastern corner of the said house and 2.3
meters away from its compound wall, and handed over the same to
him. According to PW43, the stone so handed over was taken into
custody by him after describing it in a mahazar. The seizure mahazar
by which the said stone was recovered is marked as Ext.P12, and the
relevant portion of the disclosure statement recorded therein and
proved through the testimony of PW43, is separately marked as
Ext.P12(a).
32. The recovery of the MO4, the alleged weapon of offence
was assailed by the learned counsel for the appellant mainly on the
ground that the same was recovered from a place accessible to the
public. It was urged that there is sufficient material on record to show
that even prior to the alleged recovery, the Police had already reached
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the compound of the house from which the stone was seized. In this
backdrop, it was contended that it is not prudent to believe that the
recovery was effected solely on the strength of the disclosure
statement given by the accused.
33. While considering the aforesaid contentions, it is pertinent
to note that, as rightly pointed out by the learned counsel for the
appellant, the recovery of the stone was allegedly effected on
20.03.2018 at 12.20 p.m. Notably, the inquest on the body of the
deceased was conducted on 19.03.2018 at 12.45 p.m. from the crime
scene itself. The inquest report (Ext.P11) was prepared by PW42, the
Circle Inspector of Police, Vadakkekkara. The evidence of PW42 clearly
reveals that, as part of the investigation, a dog squad had also visited
the crime scene, and an observation mahazar was prepared by him.
The said observation mahazar was marked as Ext.P39. Likewise, from
the evidence of PW43, it is clear that on 19.03.2018 itself, he took over
the investigation of this case from PW42, and on the same day, he
visited the scene of occurrence. Therefore, there can be no dispute
that Police Officers had already been present at the premises prior to
the recovery of MO4 stone.
34. Likewise, the evidence adduced in this case shows that on
learning of the incident, several persons from the locality had gathered
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at the crime scene. In this background, it is significant to note that the
MO4 stone was not recovered from a concealed or hidden place. Even
PW43, who claimed to have effected the recovery, has not stated that
when the accused pointed out the MO4 stone, it was in a concealed
position. Similarly, MO24 Photographs show that MO4 was lying in an
open area, and not from among a cluster of stones to make it
unnoticeable by others.
35. We are cognizant that it is fallacious to assume that a
recovery made from an open or publicly accessible place automatically
loses its evidentiary value under Section 27 of the Indian Evidence Act.
Any object can be concealed in places that are open or accessible. For
example, if an article is buried on the main roadside, or if it is
concealed beneath dry leaves lying in public places, or kept hidden in
a public office, the article would remain out of the visibility of others in
normal circumstances. Until such an article is disinterred, its hidden
state would remain unhampered. The person who hides it alone knows
where it is until he discloses that fact to others. Therefore, the crucial
question is whether such a material was ordinarily visible to others. In
the present case, even the investigating officer who effected the
alleged recovery does not claim that MO4 was taken and produced by
the accused from a concealed position. On the contrary, the evidence
clearly establishes that the stone was recovered from an open area
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within the compound of the house, where the incident occurred. Given
these circumstances, the recovery of MO4, allegedly from inside the
compound of the house where the incident in this case occurred, is
highly doubtful. The prior presence of the Police, as well as local
people at the crime scene, is well-established and raises concerns
about potential manipulations. Therefore, it cannot be conclusively
stated that the recovery was based solely on the strength of the
disclosure statement given by the accused.
36. Another circumstance relied upon by the prosecution to
prove the complicity of the accused in the commission of the alleged
offence is that on the next day morning of the incident, the accused
made a phone call to PW5, one of his acquaintances, and requested
him to state, if questioned by the Police, that the accused had been in
his vehicle. According to the prosecution, this request was made by
the accused to PW5 with the deliberate intention of creating a false
impression that the accused was in the company of PW5, a driver by
profession, thereby rendering his presence at the crime scene
improbable. On this basis, the prosecution vehemently contends that
such conduct on the part of the accused itself shows that he had
something to hide.
37. While considering the said contention, it is pertinent to
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note that PW5 deposed before the court that he is a lorry driver by
profession, and the accused had worked as a cleaner on his lorry for
nine months. PW5 further testified that he, as well as the accused was
working under one Binu, who was their employer. PW5 further
testified that on 18.03.2018, at around 9.00 p.m., his employer, Binu,
along with some of his friends and the accused came to his house to
have dinner. After dinner at around 11.00 p.m., he, along with his four-
year-old son, took the accused on his brother-in-law's bike and
dropped him at the car porch of the house of the deceased. According
to PW5, on the next morning, the accused contacted him over the
phone and asked him to reach the house of the deceased and to say
that the accused was with him in his vehicle, if asked by the Police.
38. While considering the question whether the conduct of the
accused in making such a phone call with the above request can be
treated as an incriminating circumstance indicating an attempt to
fabricate an impression that he was elsewhere at the time of the
commission of the offence, first of all, it is to be noted that PW5
himself admitted that it was he who dropped the accused in the car
porch of the deceased shortly before the incident in this case.
Therefore, his own presence in proximity to the crime scene places
him under the cloud of suspicion. Therefore, PW5 cannot be regarded
as a wholly reliable or sterling witness. Moreover, what the accused is
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alleged to have requested to PW5 was merely to say that he was with
him in the vehicle. Admittedly, during the relevant period, he was
working as a cleaner in the lorry driven by PW5. Hence, even if such a
request was made, it cannot, in the abstract, be unequivocally
interpreted as an attempt by the accused to fabricate an alibi.
39. More significantly, the accused is a migrant laborer from
Assam. Therefore, when an incident of such gravity occurred in the
house close to his place of stay, it is not unnatural for him to have been
apprehensive of being falsely implicated. That is more so when he is
residing on a rental basis in the same compound. Such apprehension
could have prompted the accused to make the alleged phone call to
PW5, not necessarily with a guilty mind, but possibly as a measure of
self-protection against anticipated suspicion. Therefore, the mere
conduct of the accused in contacting one of his acquaintances and
making such a request by itself cannot be regarded as sufficient to
establish that he was the perpetrator of the offence.
40. Moreover, if the accused was the real offender of the
offence, it is improbable that he would request another person to give
a false statement to the Police, as such a request would naturally
arouse suspicion in the mind of that person regarding his involvement
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in the crime. In the ordinary course of human behavior, an offender
would not take such a risk. Hence, we find it difficult to believe the
evidence of PW5 to the extent that the accused asked him to give such
a statement to the Police.
41. Another piece of evidence relied on by the prosecution to
connect the accused with the crime is the presence of alleged bite
marks on his body detected during the medical examination conducted
shortly after his arrest. From the evidence, it is established that the
accused was arrested in this case on 19.03.2018 at 9.45 pm, and
following his arrest, he was initially taken to a Dentist attached to
Government Medical College Hospital, Ernakulam. The said Doctor
was examined as PW17, and the certificate issued by her was marked
as Ext.P13. In Ext.P13, it is stated that on examination of the accused,
the following injuries were found;
1. Superficial lacerated wound 0.3x0.2 and 0.5x0.2
c.m. placed 0.1 c.m. apart on the medial aspect
right ring finger just below distal inter phalangeal
joint. There was no oozing of blood and was
covered with dried up secretions.
2. Superficial lacerated wound 0.5x0.5 c.m. front of
right ring finger, just below its proximal end (there
was no oozing of blood and was covered with dried
up secretions) with an abrasion 2x0.2 to 0.5 c.m.
extending downwards.
3. Two superficial contusions 0.3×0.2 c.m. each
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placed 0.1 c.m. apart in the same oblique line, on
palmar aspect of right hand, lower lateral one was
1 c.m. above fourth interdigital space.
4. Linear abrasion 1.5 x 0.1 c.m. almost horizontal on
lateral aspect of right ring finger just below distal
inter phalangeal joint.
5. Abrasion 0.3×0.2 c.m. on medial aspect of right
ring finger just below distal inter phalangeal joint.
(injuries IV and V in same finger)
6. Superficial contusions 0.4 x 0.2 and 0.4 x 0.3 c.m.
placed 0.1 c.m. apart one above the other on front
of left hand, lower one was 1 c.m. above the base of
ring finger.
7. Abrasions 0.2×0.2 and 0.3x0.1 placed 0.1 to 0.3
c.m. apart side by side, on front of proximal inter
phalangeal joint (proximal knuckle) of left ring
finger.
42. At this juncture, it is curious to note that, nowhere in her
evidence, did PW17 state that the injuries noted by her were bite
injuries. However, PW17 deposed that the accused narrated to her the
following history during the medical examination;
"On 18.03.2018, around 11.30 p.m., I entered the home
of the deceased and tried to rape her and hit her several
times on her head with a stone. She then fell down.
Then I dragged her to the next room and tried to rape
her. She attempted to get up, then I tried to apply
pressure in and around the mouth and chin with my
hands from the backside. First, I used my left hand, and
when she bit on that hand, I attempted to with the right
hand. In that attempt, my right hand was lodged in her
mouth and she bit my finger. I tried to withdraw my
hand forcefully. All these attempts, she did not have any
response. All the injuries in my hand were happened
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during the incident".
43. Likewise, in Ext.P13, the medical certificate issued by
PW17, the opinion recorded is that injuries on the hands could have
occurred as alleged by the subject. Moreover, during cross-
examination, PW17 candidly admitted that the opinion given by her is
as told by the accused. A conjoint reading of the evidence given by
PW17 and the certificate issued by her reveals that she is not having a
case that any of the injuries noted by her are bite marks and the
opinion expressed in Ext.P13 that the injuries on the hand could have
been occurred as alleged by the subject is not an opinion arrived on by
her on the basis of any expertise which she had, but merely a
repetition of the version formulated by the accused. Moreover, it is
pertinent to note that when an accused is arrested, particularly in a
case alleging rape, in view of the provisions contained under Cr.P.C.,
he should be produced before a registered medical practitioner. In the
case at hand, it is highly suspicious why the investigating officer
ventured to produce the accused before a Dentist instead of producing
him before a registered medical practitioner.
44. From the evidence, it is revealed that after producing the
accused before PW17, the Dentist, the accused was subsequently
produced before a registered medical practitioner, who was working as
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a Casualty Medical Officer at Taluk Headquarters Hospital, North
Paravur. When the said Doctor was examined as PW20, he deposed
that on 20.03.2018, he had examined the accused in this case and
issued Ext.P15 certificate. Referring to Ext.P15, PW20 deposed that he
had noted the following injuries on the examination of the accused;
1. Four abrasions linear on the left shoulder, which were
scratch marks of nails
2. Contusion on right ring finger
3. Contusion right palm
4. Contusion left palm
5. Contusion left little finger.
45. According to PW20, out of the said injuries, the last four
injuries mentioned by him are bite marks. Moreover, he added that the
accused had narrated a history that on 18.03.2018, he had an
altercation with a lady while raping. We have already found that the
said statement, which the prosecution seeks to treat as an extrajudicial
confession, cannot be relied upon, since it was evidently made by the
accused while he was in Police custody. Furthermore, the undue haste
exhibited by the police officers in producing the accused before a
dentist instead of a registered medical practitioner, itself creates some
doubt as to the alleged bite marks, and the same indicates that the
investigating officer jumped to a conclusion that it was a bite mark.
Similarly, PW20, the Doctor before whom the accused was
subsequently produced, deposed that the accused himself had
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narrated the cause of the injuries noted on his body. Therefore, the
possibility that PW20 was under a preconception or premonition that
the injuries observed by him were bite marks cannot be ruled out. At
this juncture, the contention advanced by the learned counsel for the
appellant that the accused was subjected to third-degree torture by
the Police also cannot be lightly ignored. Consequently, the injuries
allegedly found on the accused cannot be treated as a circumstance
that leads to the sole conclusion that the accused is guilty of the
offence, ruling out any other plausible hypothesis. Notably, in Ext.P15
certificate prepared by PW20, it is mentioned that apart from the bite
marks, he noted scratches by nails on the accused. However, in the
examination of nail clippings of the deceased conducted in the forensic
laboratory, no epithelial cells of the accused were detected.
46. The learned Special Public Prosecutor made a strenuous
effort to impress upon us that the bite marks found on the hand of the
accused correspond to the dentition of the deceased. In order to
substantiate the same, the learned Special Public Prosecutor invited
our attention to the scientific evidence regarding bite mark
comparison adduced in this case. As already noticed, after the arrest
of the accused, he was produced before PW17, a Dentist attached to
the Government Medical College Hospital, Ernakulam. Upon
examining the accused, she prepared Ext.P13 report recording the
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injuries noted on the accused's body. According to PW17, on
19.03.2018, after examining the accused, she proceeded to examine
the dead body of the deceased at the Forensic department of the same
hospital and took the impression of the upper and lower teeth of the
deceased and prepared corresponding dental casts, which she
subsequently handed over to the Police officer. During the examination
before the court, she identified the said dental casts prepared by her,
and the same were marked as MO3 series.
47. Likewise, the Assistant Professor, Oral Pathology, Medical
College, Thrissur, who undertook the comparison of the dental casts
with the injuries noted by PW17 on the accused's body and recorded in
Ext.P13 report, was examined as PW22. On examination before the
court, PW22 deposed that the injuries on the ring finger and the two
contusions in the fourth interdigital area of the accused's hand
coincided with the configuration reflected in the cast provided for
comparison.
48. While appreciating the said scientific evidence, it is to be
noted that there is no convincing material on record to establish that
the dental casts examined by PW22 are the same casts prepared by
PW17. There is no document or mahazar to show the chain of custody
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or to prove that PW17 had formally handed over the cast to the
investigating officer for onward transmission to PW22. Likewise, it is
highly suspicious what prevented the investigating officer from taking
the dental casts into custody after describing it in a mahazar. Further,
there is nothing on record to show in whose custody the said dental
casts remained until they reached the hands of PW22. Even PW22 does
not have a case that when the same was produced before him, it was
in a sealed condition. Therefore, nobody could be blamed if it is found
that the dental casts reached the hands of PW22 without any chance of
tampering, since the chain of custody of the same is broken. That
apart, the most crucial aspect is that during the examination before
the court, the MO3 series dental casts were not even shown to PW22,
and he did not identify them in court. Hence, there is no guarantee
that the MO3 series dental casts produced and marked in evidence are
the very same casts that were used by PW22 for the purpose of
comparison.
49. Apart from the above procedural lapse, it must be noted that
the bite mark comparison is not an exact science. The reliability of
such forensic analysis has been seriously questioned in recent times,
as the rate of false positives in bite mark comparison is demonstrably
high. Therefore, the evidence of PW22 and the bite mark comparison
conducted by him cannot materially strengthen the prosecution case,
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particularly in the absence of other substantive and corroborative
evidence pointing to the guilt of the accused.
50. Turning now to the fingerprint evidence adduced in this
case, it is seen that the fingerprint expert who visited the scene of
occurrence, collected the chance prints found in the crime scene, and
compared the same with the fingerprints of the accused, was examined
as PW32. The report prepared by him was marked as Ext.P30. As per
his evidence, he had altogether collected seven chance prints and out
of which one chance print was collected from a water bottle, and three
chance prints were collected from the door of the bedroom where the
dead body was found. The remaining three chance prints were
collected from a 7-Up bottle. The evidence of PW32 and Ext.P30 report
prepared by him shows that out of the said seven chance prints
collected, three were found to be unfit for comparison. Among the
remaining four, one chance print lifted from the 7-Up bottle, which was
marked as P4, was found to tally with the fingerprint of the accused.
As per the prosecution's case, the said 7-Up bottle was recovered from
the top of a showcase found in the dining hall of the house where the
incident in question took place.
51. However, while appreciating the fingerprint expert's
evidence, it cannot be ignored that, admittedly, the accused is a tenant
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in the building situated within the same compound as that of the
deceased's house. In such circumstances, the presence of the
accused's fingerprint on a 7-Up bottle, which was found on the top of
the showcase of the dining hall of the deceased's house, cannot, by
itself, be treated as a significant incriminating circumstance. There is
every possibility that the accused might have used the said beverage
during his casual visit. Hence, in the absence of other cogent and
convincing evidence linking the accused to the actual commission of
the offence, the fingerprint evidence alone cannot form basis for
conviction in this case.
52. While reverting to the remaining scientific evidence, it can
be seen that in the report of the Assistant Chemical Examiner, which
was marked as Ext.P44, it is specifically stated that on examination of
the vaginal smears and swabs of the deceased, human semen and
spermatozoa were detected. However, in the Ext.P50 FSL report, it is
stated that the seminal stains found in the vaginal swabs were
insufficient for DNA typing. Therefore, it cannot be said that the
human spermatozoa and semen detected in the vaginal swab and
smears were those of the accused.
53. Likewise, according to the prosecution, at the relevant time
of the commission of the offence, the accused was wearing a shirt and
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a pant. It was further alleged that the said shirt originally belonged to
PW6's brother and the pants belonged to PW6. The shirt which was
recovered during the course of the investigation, was marked during
the trial as MO1. Likewise, the pant which was allegedly recovered on
the basis of a disclosure statement given by the accused, was marked
as MO5. As per the prosecution case, after the commission of the
offence, the accused had washed the said pants with an ulterior
intention to cause the disappearance of evidence. A perusal of Ext.P50
FSL report reveals that although the pant (MO5), corresponding to
item No.40 in the record, was subjected to examination, no DNA was
obtained from it. Curiously, MO1 shirt was not even forwarded for
chemical examination. Similarly, no serological examination was
conducted to find out whether any blood stains were present on MO5
pant. On the other hand, in the FSL report, while describing item
No.40, the description in the forwarding note that "black colour pants
of the accused with blood-stain worn by the accused at the time of the
assault seized after washing by the accused" has been mechanically
reproduced without conducting a serological examination. Moreover, it
is significant to note that neither the DNA of the accused nor his
epithelial cells were detected in the nail clippings of the deceased and
vice versa. More curiously, although another shirt was allegedly found
tied around the neck of the diseased, no investigation, whatsoever, was
conducted to ascertain to whom that shirt belonged. Therefore, the
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scientific evidence adduced in this case will in no way help the
prosecution to prove the complicity of the accused in the commission
of the offence; rather, it lends support to a hypothesis consistent with
the innocence of the accused.
54. The upshot of the above discussion is that the evidence of
PW4, upon which the prosecution heavily relies to prove the
occurrence of the incident, has to be excluded from consideration
since PW4 is found to be incompetent to testify. Furthermore, the
prosecution's reliance on the alleged extrajudicial confession is also
misplaced as it is rendered inadmissible in evidence by virtue of
Section 26 of the Indian Evidence Act, having been made while the
accused was in Police custody. We have already found that no credence
can be placed on the recovery evidence, as there are sufficient
circumstances to suggest that the recovery was not effected solely on
the strength of the information furnished by the accused. The other
circumstances projected by the prosecution have also not been proved
in a manner that excludes every reasonable hypothesis except that of
the guilt of the accused. Likewise, the scientific evidence does not
render any assistance to the prosecution to prove the involvement of
the accused in the commission of the crime rather, it tends to help the
accused in establishing his innocence.
&
:: 44 ::
2025:KER:82014
In the result, the criminal appeal is allowed. The impugned
judgment is set aside, and the appellant is acquitted of all the charges.
The appellant shall be set at liberty forthwith from the prison
concerned, if his continued detention is not required in connection
with any other case. The death sentence reference is answered in the
negative.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd/ANS
