Evidence Law; Yohannan @ Biju Vs. State [Kerala High Court, 08-06-2016]

Penal Code, 1860 – S. 302 – Evidence Act, 1872 – Ss. 27 & 45 – Recovery – Circumstantial Evidence – Expert Opinion – the prosecution could not establish all the connecting links in the chain of circumstantial evidence to establish guilt of the appellant. The factual aspects, which were taken into consideration by the trial court to sustain the conviction cannot be held as a complete link in the chain of events to sustain the conviction. Resultantly, the conviction and sentence impugned in this appeal cannot be sustained.

# Circumstantial Evidence


IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.K. ABDUL REHIM, J. & B. SUDHEENDRA KUMAR, J.

Crl. Appeal No. 1426 OF 2012

DATED THIS THE 8th DAY OF JUNE, 2016

AGAINST THE JUDGMENT DATED 01-02-2012 IN SC 114/2009 of ADDITIONAL SESSIONS COURT-II & MACT, MAVELIKKARA

APPELLANT/ACCUSED

YOHANNAN @ BIJU

BY ADV. SRI.S.PRAKASH

RESPONDENT/COMPLAINANT/STATE

THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

BY PUBLIC PROSECUTOR SMT. V.H. JASMINE

J U D G M E N T

Abdul Rehim, J

The above appeal was preferred by the sole accused in SC No.114/2009 on the files of the Additional Sessions Court-II, Mavelikkara. The appellant stands convicted under

# Section 302 of the Indian Penal Code (IPC)

and sentenced to undergo imprisonment for life and to pay fine of Rs.1,50,000/-; and in default to undergo simple imprisonment for a period of 2 years. The court below ordered that the fine amount if realized, an amount of Rs.1,00,000/- shall be paid to PW4, mother of the deceased, by way of compensation under Section 357 (1) (b) Cr.P.C.

2. Prosecution case is that on 24-07-2004 at about 7.30 a.m. the appellant, due to enmity with the deceased, who is the brother of the appellant’s father, for the reason that the deceased had done some mischief to the appellant’s mother and also due to some property disputes existed, with the intention of causing his death, had attacked the deceased in front of a double storied building bearing No.II/340 of Chennithala-Thripperumnthura Panchayat situated on the eastern side of Mannar-Valiaperumpuzha public road. The appellant had beaten the deceased with a ‘Velippathal’ (wooden stick) on his ‘nasal bridge’ and also on the left side of his neck. The deceased succumbed to the injuries sustained at about 8.10 a.m., thereby the appellant had committed the offence punishable under Section 302 IPC.

3. Exhibit P1 first information statement regarding the incident was given to the police by PW3, brother of the deceased, which was recorded by PW23. Based on Ext.P1 statement Ext.P15 First Information Report (FIR) was registered. PW27 Circle Inspector of Police took charge of the investigation on the same day. He visited the site and examined the dead body and prepared Ext.P2 inquest report. MO4 which is two pieces of the ‘Velippathal’, were recovered from the scene of occurrence. Based on a disclosure statement of PW13, who is the mother of the appellant, MO1 ‘T-Shirt’ having blood stains was seized from the house of the appellant by preparing Ext.P8 mahazer. PW27 had visited the scene of occurrence along with PW19 Scientific Assistant, who had issued Ext.P11 report. Autopsy on the dead body was conducted by PW21 at the Medical College Hospital, Alappuzha on 25-07-2004. Exhibit P13 is the Post Mortem Certificate. In the course of investigation, PW27 received information from Mundakayam police station with respect to apprehension of the appellant. On that basis the appellant was arrested by PW 27 at about 7.15 p.m. on 25-07-2014, after preparing Ext.P16 Arrest Memo. On questioning, the appellant gave Ext.P10 (a) disclosure statement, based on which and as led by the appellant MO3 ‘Kaili’ (lunki) worn by him at the time of the occurrence was recovered from the house of the appellant, on preparing Ext.P10 Mahazer, on 26-07-2004. After arrest of the appellant, PW27 had produced him before the Taluk Hospital, Kanjirapally at about 10.10 p.m. on 25-07-2004. Exhibit P17 is the Wound Certificate issued from the said Hospital with respect to his medical examination. The accused was produced before the Judicial First Class Magistrate-II, Chenganoor and got remanded to judicial custody by submitting Ext.P20 remand report. Subsequently, the appellant was given under police custody on 02-08-2004 till 05-08-2004. During the said period, based on Ext.P7 (a) disclosure statement of the appellant and as led by him MO2 Golden Ring was recovered from the house of PW14 on 02-08-2004, by preparing Ext.P7 Mahazer. The investigation was completed and the final report was submitted by PW26.

4. Evidence on record consist of, witnesses examined as PW1 to PW27, Exhibits P1 to P27 and MO1 to MO19 material objects produced and identified for the prosecution. No defence witness was examined or any exhibit was marked on behalf of the appellant. PW1 to PW4 and PW12 were examined to prove the occurrence. But they did not support the prosecution version. PW7 to PW10, who were examined to prove the extra judicial confession alleged to have been made by the appellant, also turned hostile. Therefore, there exists no direct and independent evidence to prove the occurrence. The prosecution had relied on various circumstantial evidence, including seizure of MO1 ‘T-shirt’ and recovery of MO3 ‘lunki’, which were allegedly worn by the appellant at the time of the incident. Reliance was also placed on the alleged abscondance of the appellant and his apprehension from a far away place at Mundakkayam, on the next day of the occurrence. Evidence regarding pledging of MO2 Gold Ring on the date of the incident was also brought in against the appellant, as a strong connecting link in the chain of circumstantial evidence. Exhibit P13 Post Mortem Certificate revealed that the deceased had sustained the following ante-mortem injuries

“1. lacerated wound 2.5×0.5 cm bone deep obliquely placed at the root of nose, Upper outer end at the inner end of left eye brow 1 cm outer to midline and the lower inner end was at the root of the nose at its dorsal aspect in the midline. The margins of the injury showed contusion of 0.05cm.

2. Skin deep lacerated wound 1.5 x 0.1 cm obliquely placed at the bridge of the nose. It was more or less parallel to the first injury and 1 cm below it. The margins were contused.

3. Lacerated wound 4.5 x 0.5cm bone deep, placed front to back, at the left side of head. The lower front end was 7.5cm above the ear and 10cm outer to midline and the upper back end was 8 cm outer to midline. The scalp showed 8 x 5 cm contusion at the left temple. Skull was intact. The cranial cavity contained 50ml of fluid of blood subdually (sub dural haemorrhage). There was thick film of subarachnoid haemorrhage at frontal, temporal and front half of parietal lobes, bilaterally and at the under surface of brain. The lateral ventricles contained fluid blood and small clots. Also, there was haemorrhage into the basal ganglia on right side.

4. Lacerated wound 2 x 0.3cm muscle deep transversely placed at the outer aspect of upper part of neck 0.5cm below the mastoid eminence and 1cm back to the ear.

5. Contused abrasions over an area of 5 x 1.5cm vertically placed 2cm apart. Each one measuring 1.5cm x 1cm and 1.5cm x 0.8cm at the front and inner aspect of lower one third of right leg 9 cm above ankle.

6. Healing wound 3.5 x 2cm at the inner aspect of lower one third of right forearm, 7.5cm above wrist.”

PW21 Doctor, who conducted the Post Mortem Examination deposed that the deceased died due to the head injury sustained and that the injury No.1 was fatal. She further deposed that, injury Nos.1 and 2 could have contributed to the cause of death. She conceded of having given statement to PW27 that the injury No.1 to 5 could be caused with MO4-‘Velippathal’. MO1 ‘T-shirt’ seized from the house of the appellant was sent for chemical examination. Exhibit P24 report of the Forensic Science Laboratory would indicate that it contained human blood belonging to ‘O’ group. It is proved through examination of the blood sample of the deceased collected at the time of the Post Mortem Examination, that the deceased is having blood of ‘O’ group. Based on the above narrated circumstantial evidence and based on the report of the Forensic Science Laboratory, the court below found the appellant guilty and convicted and sentenced him under Section 302 IPC.

5. Learned counsel for the appellant contended that the conviction and sentence cannot be sustained as the prosecution had failed in convincingly establishing all the connecting links in the circumstantial evidence for proving guilt of the appellant in the murder of the deceased. It is contended that the prosecution had failed in proving any motive for the offence alleged. The real cause for the alleged enmity between the appellant and deceased could not be established through any evidence. It is pointed out that there is no evidence that PW13, mother of the appellant, had made any revelation to the appellant about the attempt of the deceased to cause mischief on her. Therefore, it is not established through any convincing evidence that the appellant had knowledge about the alleged mischief attempted by the deceased to his mother. Therefore the allegation of enmity stands not established through any convincing evidence, is the contention. With respect to the allegation of enmity based on the property dispute, there is no clear cut or corroborative evidence before the court below, is the argument.

6. According to the appellant, recovery of MO2, which is a Gold Ring alleged to have been pledged by the appellant on the date of the incident, cannot be considered as a connecting link. In this regard it is pointed out that, the testimony of PW14 is to the effect that he had received the Gold Ring from the appellant at about 7 a.m. on 24-07-2004, whereas time of the occurrence is at 7.30 a.m. Therefore it is contended that, the accusation that the appellant had pledged MO2 Ring for securing money for his abscondance, cannot be believed. Further, it is pointed out that, testimony of PW13 is that the appellant had gone for job on the said day in the morning. When questioned under Section 313 Cr.P.C, the appellant gave a specific answer that MO2 Ring was pledged only for the purpose of going in search of a job.

7. In reply to the above said contentions, learned Public Prosecutor pointed out that, there was an attempted molestation of PW13 by the appellant, which is clearly brought out in evidence through her testimony. Existence of a dispute with respect to family property is also revealed from testimony of PW3. Therefore, the alleged motive stands clearly proved.

8. On an appreciation of the rival contentions, we are of the considered opinion that the prosecution could not succeed in establishing the motive through any convincing evidence. Regarding the reason for enmity between the appellant and the deceased, the prosecution story is not proved through any acceptable evidence. As already observed, there is no evidence that PW13 had revealed to the appellant about the attempted molestation, at any time before the alleged incident. So also, PW3 has not clearly deposed anything about the nature of dispute between the appellant and the deceased with respect to partition of the property.

9. Another important aspect upon which the trial court had placed much reliance is the abscondance of the appellant and his arrest from a far away place at Mundakkayam, on the next day of the incident. Prosecution case is that the accused was seen lying on a heap of metal (granite) near to the Bus Stand at Mundakkayam, and he made an extra judicial confession to PW7 to PW10, Auto Drivers at Mundakkayam, that he had caused death of a person. But PW7 to PW10 had not supported the prosecution version. Of course, there is evidence of apprehension of the appellant by PW22, the Assistant Sub Inspector of Police, at Mundakkayam. Dress materials which were available with the appellant, were also taken into custody. PW22 deposed that the appellant made a confession that he came after killing his uncle. But the same cannot be considered as an extra judicial confession made by the appellant, as it is hit by Section 25 of the Indian Evidence Act.

10. Another incriminating circumstance relied upon by the prosecution is the injury sustained by the appellant. Exhibit P17 is the Wound Certificate marked through PW25 Doctor. It is evident that the appellant was brought to the Taluk Hospital, Kanjirapally at about 10.10 p.m. on 25-07- 004 by the Sub Inspector of Police, Mannar, after his apprehension from Mundakkayam Bus Stand. The injury noted in Ext.P17 is only a contusion of 1 c.m.x1c.m. on the right side of his face. The alleged cause of injury mentioned in Ext.P17 is that, the deceased had beaten him when he inflicted injury on the head of the deceased, at 7.30 p.m. on 24-07-2004, on the verandha of ‘Ottethengil Finance Building’. The Doctor who examined the appellant was not examined before the court. Exhibit P17 was marked only on the basis that PW25 is familiar with the handwriting and signature of Dr. Babu Thomas, who had issued the said certificate. Learned counsel for the appellant pointed out that the prosecution has not stated any reason for nonexamination of the person who issued Ext.P17. Hence marking of Ext.P17 document was not proper and no evidencery value can be attached to the said document, is the contention. It is true that no specific reason is brought out for non-examination of the Doctor who issued Ext.P17 wound certificate. Further this court takes note of the fact that there is no mention in Ext.P17 as to who gave the information about the alleged cause of injury noted therein. As contended, marking of Ext.P17 through examination of PW25 cannot be taken as proof of its contents. More over, it is pertinent to note that the accused was taken to the hospital only after his arrest. He was in police custody and the injury noted was only a very small abrasion on the side of his face. There is no evidence forthcoming as to who disclosed the history of the alleged cause of injury to the Doctor. There is no convincing evidence that the deceased had inflicted the injury on the appellant. Therefore, the fact that the appellant was treated at a hospital after his arrest and that he was having a small injury on his body cannot be considered as a circumstance supporting the prosecution version.

11. Sheet anchor among the contentions on behalf of the prosecution is regarding the seizure of MO1 ‘T-shirt’ and the recovery of MO3 Kaili (lunki), alleged to have been worn by the appellant at the time of occurrence, and detection of blood stains on those materials. It is a strong circumstantial evidence connecting the appellant with the incident, is the contention. With respect to seizure of MO1 ‘T-shirt’, case of the prosecution is that it was taken to custody based on the disclosure statement given by PW13. But it is to be noted that PW13 is not an accused in custody and hence recovery effected based on the alleged disclosure statement of PW13 does not fall within the ambit of a discovery under Section 27 of the Evidence Act. Prosecution case is that, PW13 had produced MO1 ‘T-shirt’ as the one worn by the appellant at the time of the occurrence. PW13 in her evidence conceded that MO1 is a ‘T-shirt’ belonging to the appellant. But she never deposed that MO1 is the ‘Tshirt’ which was worn by the appellant at the time of the occurrence. She had denied of having produced MO1 to the police. According to PW19, MO1 ‘T-shirt’ was collected from the cot found in the Kitchen of the house of the appellant. The prosecution had placed much reliance on Ext.P11 report submitted by PW19 with respect to the inspection at the house of the appellant and with respect to the seizure of MO1. But learned counsel for the appellant contended that Ext.P11 has no evidencery value because PW19 is not a Government Scientific Expert, with respect to whom the provisions of Section 293 Cr.P.C will apply. Exhibit P11 report would reveal the fact that PW19 was present at the time when the examination was conducted at the house of the appellant and MO1 ‘T-shirt’ was seized. Therefore it is contended that Ext.P11 is only having characteristics of a statement under Section 161 Cr.P.C, which is hit by Section 162 of Cr.P.C; and hence the contents thereof cannot be accepted as opinion of an expert coming within

# Section 45 of the Evidence Act, 1872.

12. Learned counsel for the appellant placed reliance on a decision of the hon’ble Supreme Court in

# C. Chenga Reddy and others V. State of A.P., 1996 SCC (Crl) 1205

In the said case, an official serving in the Irrigation Department, who was entrusted with the task of assisting the investigating officer had prepared a report, which was produced as Ext.P11 in the trial. The apex court observed that, the report given by the said person would be technical and it factually forms part of his statement recorded during the investigation and hence it would be hit by Section 162 Cr.P.C. Therefore, it was observed that the report could be used only for the purpose of cross-examination under Section 145 of the Evidence Act and it cannot be used as a corroborative piece of evidence.

13. While considering admissibility of the evidence with respect to seizure of MO1 and regarding evidenciary value of the oral testimony of PW19 and that of Ext.P11 report, this court is of the considered opinion that Ext.P11 can be considered only as a statement under Section 161 of Cr.P.C made by the Scientific Assistant, who was present along with the Investigating Officer at the time of the seizure. No further evidenciary value with respect to the seizure of MO1 can be attributed based on Ext.P11 report. The factum of seizure of MO1 ‘T-shirt’ from the house of the appellant stands established through oral testimony of PW19 which was corroborated by PW27. As already observed, there is no evidence before the court that MO1 was the ‘T-shirt’ worn by the appellant at the time of the occurrence.

14. Learned Public Prosecutor had pointed out that, MO1 ‘T-shirt’ contained blood stains which was analysed as of human origin, belonging to ‘O’ group, as per Ext.P24 FSL report. It is contended that there exists strong circumstance on the facts that MO1 belongs to the appellant and that it contained blood stains, which is that of the group of the deceased. Per contra, learned counsel for the appellant contended that no credibility can be given to the Forensic Report, mainly because, despite seizure of MO1 as early as on 25-07-2004, the same was produced before the Magistrate Court only on 06-10-2004, and the delay in this regard was not explained by the prosecution. It is further contended that no investigation was conducted to identify the blood group of the appellant and to rule out the possibility of the appellant having the same blood group. He contended that, when the prosecution is relying only on circumstantial evidence, discovery of any incriminating material has to be proved with clear and corroborative evidence and that each link in the chain of circumstantial evidence need to be established, in order to prove culpability of the accused. In this regard, learned counsel had pointed out a decision of the hon’ble apex court in

# Vijay Thakkur V. State of Himachal Pradesh, 2014 KHC 4606

It is held therein that, when there is no eye witness and when the conviction is based only on circumstantial evidence, complete chain of evidence has to be established pointing out culpability of accused person. The chain should be such that no other conclusion, except guilt of the accused person, is discernible without any doubt. When the chain of evidence is incomplete, it becomes somewhat difficult to convict the person on the basis of the recoveries alone.

15. In

# Mani V. State of Tamil Nadu, 2008 (1) SCR 228

the hon’ble Supreme Court observed that, the discovery is a weak kind of evidence and cannot be wholly relied upon and a conviction in such a serious matter cannot be based upon the discovery alone. Once the discovery fails, there would be literally nothing which would support the prosecution case. With respect to the circumstantial evidence, in a most celebrated case of the hon’ble Supreme Court

# Sharad Birdhichand Sarda V. State of Maharashtra, (1984) 4 SCC 116

the cardinal principles of appreciation of circumstantial evidence has been postulated. It is held that, whenever the case is based on circumstantial evidence, the following features are required to be complied with.

“(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established;

(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(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 from 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.”

Evidently, the above principle enunciated in various decisions of the hon’ble Supreme Court was seen followed by a Division Bench decision of this court in

# Mehabul V. State of Kerala, 2015 KHC 537

When analysed of the evidence on record available in the case at hand, based on those settled principles, we do not find it as a fit case where conviction can be sustained, because of the factual circumstances narrated in the foregoing paragraphs.

16. Learned counsel also contended that reliance placed by the trial court on the aspect of the alleged abscondance cannot be sustained, because it remains settled that abscondance by itself cannot be taken as a strong circumstance to conclude guilt of the accused. He had placed reliance on the decision of the hon’ble Supreme Court in

# Sujit Biswas V. State of Assam, 2013 KHC 4435

It is held therein that, in a criminal trial, suspicion, no matter how strong, cannot and must not be permitted to take the place of proof. This is for the reason that the mental distance between ‘may be’ and ‘must be’ is quite large, and divides vague conjectures from sure conclusions. The court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ‘may be true’ and ‘must be true’ is to be covered by way of clear and cogent and unimpeachable evidence produced by the prosecution. The court must maintain the vital distance between the mere conjectures and sure conclusions to be arrived at, before an accused is condemned as a convict, by keeping in mind the distance of ‘may be true’ or ‘must be true’. It should be scrutinized on the touch stone of the dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case as well as the quality and credibility of the evidence brought on record. The court must ensure that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. The above decision further proceed to observe that, the abscondence of an accused by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime. The act of absconding is no doubt a relevant piece of evidence to be considered along with other evidence, but its value would always depend upon the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence, which must admit of no other reasonable hypothesis than the guilt of the accused. The hon’ble apex court had also relied on various earlier precedents in support of the above conclusions. As already observed there is no cogent evidence that the appellant had absconded after the incident. There is no convincing and acceptable evidence that he came to Mundakkayam to escape from being arrested in the case registered.

17. In the case at hand, there is evidence to the effect that MO3 ‘Kaili’ (lunki) was recovered based on the disclosure made by the appellant. Exhibit P10 mahazer prepared in this regard would indicate that there were blood stains on MO3. But it is pertinent to note that the prosecution has not forwarded MO3 to the Forensic Science Laboratory for chemical analysis. Exhibit P24 chemical analysis report would indicate that, a red coloured lunki was sent for analysis and it was proved that the same contained stains of human blood belongs to ‘O’ group’. But from the description of the item contained in Ext.P24 report itself, it would reveal that the lunki which was sent for analysis can only be MO15, which is the lunki recovered from the body of the deceased at the time of the post mortem examination. Eventhough learned Public Prosecutor made a feeble attempt to convince this court that the lunki sent for analysis included as item No.7 in Ext.P24 report is MO3, which was recovered from the appellant, on a perusal of P23 series ‘property list’ we are convinced that the ‘lunki’ which was forwarded as item No.7 is the ‘lunki’ which was recovered from the body of the deceased. Non examination of MO3 ‘lunki’ at the Forensic Lab and the nondetermination of the origin of the blood stains contained therein had rendered the recovery of the said material object as futile and there occurred a clear missing link in the circumstantial evidence, which could have been made use of to connect the appellant with the offence. As already discussed, the discrepancies with respect to seizure of MO1 ‘T-shirt’ as well as non-establishment of the fact that the same was worn by the appellant at the time of occurrence would render the evidence in that respect as not dependable. Learned Public Prosecutor had argued that the non-examination of MO3 ‘lunki’ by itself will not render the evidence of recovery as totally non-acceptable. She had placed reliance on the decision of the hon’ble Supreme Court in

# Shyamal Ghosh V. State of West Bengal, 2012 Crl.L.J. 3825

It is a case where the weapon alleged to have been used for committing the offence was recovered. The apex court found that, when the recovery itself was proved, non-forwarding of the weapon for chemical analysis itself would not render the evidence as non-acceptable. The witness had also identified the weapon in that case. But in the case at hand, as already found, there is no direct evidence to show that the accused was wearing MO3 at the relevant time and therefore the seizure of MO3 itself could not substantiate the guilt, without any connecting evidence. Under such circumstances, the recovery of MO3 from the accused by itself cannot be treated as a connecting link in the chain of circumstances to prove guilt of the appellant.

18. From the discussions in the foregoing paragraphs this court is convinced that the prosecution could not establish all the connecting links in the chain of circumstantial evidence to establish guilt of the appellant. The factual aspects, which were taken into consideration by the trial court to sustain the conviction cannot be held as a complete link in the chain of events to sustain the conviction. Resultantly, this court is of the opinion that the conviction and sentence impugned in this appeal cannot be sustained.

19. Therefore the above appeal is hereby allowed. The conviction and sentence imposed by the Additional Sessions Court, Mavelikkara in SC 114/2009 are hereby set aside. The appellant stands acquitted under Section 302 IPC and he is directed to be released forthwith, if his detention is not required for any other case.

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