- (1.) This appeal has been preferred against the judgment and order dated 10.12.2009 delivered by the Kerala High Court at Ernakulam in Criminal Appeal No. 86 of 2006, by way of which it has affirmed the judgment and order of the Sessions Court, Kottayam dated 3.1.2006, passed in Sessions Case No. 145 of 2005.
(2.) Facts and circumstances giving rise to this appeal are: A. As per the case of the prosecution, the appellant at the relevant time had been working as the Deputy Superintendent of Police at Malappuram, and his wife was living at Palluruthy, and was using a vehicle which was driven by Praveen (deceased). He was also related to the appellant. Praveen developed an illicit relationship with the appellant's wife, and the appellant was informed of this development by his Manager, Aji. The appellant reached Palluruthy, and made enquiries about the situation from Praveen and others, and his relatives tried to resolve the aforesaid matter. In the presence of other relatives, the matter was then amicably settled. Praveen (deceased), was asked not to come to appellant's house thereafter, and thus Praveen left and began working in a shop at Ettumanoor, as a driver. B. During this period, on 25/26.11.2004, Vijayamma, relative of Praveen (deceased), and N. Sahadevan PW.2's father, informed Pavithran (PW.1), father of Praveen, that Praveen was in danger as Vijayamma had found out about the illicit relationship that Praveen had developed with the appellant's wife. C. N. Sahadevan, PW.2's father informed Pavithran (PW.1), Praveen's father who resided at Trivendrum, via the telephone of this danger to Praveen's life. Pavithran (PW.1) immediately informed his brother and requested him to help Praveen, as he may not be spared by the appellant. N. Sahadevan, PW.2's father, went and brought Praveen to his own house, whilst informing everybody, that his mother was seriously ill. The appellant asked N. Sahadevan, PW.2's father, in conversation over the telephone about Praveen, and directed him to bring Praveen back. PW.2's father then took Praveen back. When the meeting took place in the presence of various relatives, the appellant (A-1), attempted to assault Praveen, but they were separated by other persons. Praveen pleaded his innocence, and told the appellant that Aji had played this dirty game for some personal gain. However, when Aji was called to participate in the said meeting, he stood by his version of events and stated that he had seen Praveen and the appellant's wife in a compromising position. The appellant told Praveen to leave the said place and to not enter the city. D. Praveen was brought by Jilesh M.S. (PW.2), and taken to Trivendrum for treatment. Praveen told his father after a period of 2/3 days that it was not safe for him to stay in hospital as 2/3 gundas had been roaming around in the hospital. Thus, he went back to the city and sought employment. E. On 15.2.2005, Divakaran (PW.7), neighbour of Vinu (A-2), while coming out of a bus stop, saw Vinu (A-2) coming on a motor bike while Praveen was standing in the market. Vinu (A-2), stopped the bike and took Praveen towards Kottayam. They then went to a bar, had drinks as were served to them by Saiju (PW.9), and came out of the bar at 8.30 p.m., after which they ate at a 'thattukada' (a small petty shop), where they were served by Jose (PW.8), an employee of the 'thattukada'. Mohammed Sherif @ Monai (PW.13), who was the owner of the 'thattukada', saw the appellant (A-1), coming in a Maruti car. In the said car, there were also some other persons. They had coffee, as was served to them by Jose (PW.8), and seen by Mohammed Sherif @ Monai (PW.13). The appellant (A-1) went back to the car and started driving. Other persons also joined him, and Vinu (A-2), along with Praveen, left on a Motor Cycle. Vinu (A-2) lifted his hand and proceeded further. The Maruti Van followed them. They all left the city at about midnight, and drove into the jungle. F. Shanavas (PW.12), an auto-rickshaw driver carrying patients to the Medical College, Kottayam found one motor cycle parked on the side of the road. As he had slowed down seeing the vehicles on the road, he also saw two persons coming out of the van. The pillion rider of the motor cycle sat in the van and after he got into the van, the van left immediately. The motor bike also started. He noted the registration number of the van, and also that of the motor bike. G. Mohanan (PW.10), another auto rickshaw driver saw the Maruti Van parked on the road and a person standing near it. Mohanan (PW.10), stopped his auto and asked him what had happened, however he only replied that a person had gone nearby. Thus, Mohanan (PW.10) left the place. H. On 16.2.2005, a pair of human legs was found floating in the backwaters of the Vembanad lake (hereinafter referred to as the 'lake') at Kottayam, by a person who thereafter lodged a complaint to Subhah K. (PW.68), Sub-Inspector of the Kottayam West Police, on the basis of which, an FIR was registered. I. On 18.2.2005, Pavithran (PW.1) lodged an FIR in the Police Station alleging that his son Praveen had gone missing, and that after he became aware of the same, he had spent the last 3/4 days searching for him, but had been still unable to trace him. J. On 19.2.2005, a torso in a plastic bag, was seen floating on the eastern side of the lake. Upon obtaining requisite information, K.M. Antony (PW.17), Circle Inspector of Vaikom, reached the scene and Pavithran (PW.1) also identified the torso, to be that of his son. While the inquest of the torso was being conducted, a pair of hands was seen floating in the lake. K.M. Antony (PW.17) recovered the same and conducted inquest. Pavithran (PW.1) identified the hands to be those of Praveen as well. K. After the completion of the preliminary enquiry, the appellant and Vinu (A-2), were arrested on 24.2.2005. The house of the appellant (A-1) was searched by K.M. Anto (PW.74), Circle Inspector of Police, Kottayam West and there was recovery of M.Os. 13 to 18, under Exts. P.17 and 18 Mahazars. B. Muralidharan Nair (PW.77), Dy.S.P., Kottayam, received information that a human head in a plastic cover, had been spotted on the shores of the back waters of the lake. The head was then recovered and inquest prepared. B. Muralidharan Nair (PW.77) obtained custody of the accused from court. The chopper (M.O.4), alleged to have been used in the said crime was recovered at the instance of the appellant. A Maruti Van (M.O.5) was also recovered after information was furnished by the appellant (A-1), to the effect that the said Maruti Van had also been used. L. After having completed the investigation, a charge sheet was filed against five persons, including the appellant. The trial however, could be conducted only against two persons, i.e. the appellant (A-1) and Vinu (A-2), as all the others were absconding. Subsequent to the trial of this case, A-3 and A-4 were also apprehended, put to trial separately, and convicted under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC'). A-5 is still absconding. M. So far as the present case is concerned, the appellant (A-1) was convicted under Section 302 read with Section 120B of the IPC, and was awarded a sentence of life imprisonment and a fine of Rs. one lakh, in default of which, he would undergo SI for a period of one year. Vinu (A-2) was sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- only, in default of which, he would undergo SI for 3 months. Both the accused were also convicted under Section 201 read with Section 120-B IPC, and sentenced to imprisonment for a period of 3 years, and a fine of Rs.2,000/- each, in default of which, they would undergo SI for a period of 3 months each. They were further convicted under Section 364 read with Section 120-B IPC, and sentenced to undergo RI for a period of 7 years each, and to pay a fine of Rs.5,000/- each, in default of which, they would undergo SI for a period of one year. All the sentences were directed to run concurrently. N. Aggrieved, both of them preferred Criminal Appeal No. 86 of 2006, which was dismissed by the High Court vide judgment and order dated 10.12.2009. Hence, this appeal.
(3.) Shri S. Gopakumaran Nair, learned senior counsel appearing for the appellant, has submitted that there was no motive for the appellant to cause death of Praveen. It is a case of circumstantial evidence as there is no eye-witness to the actual incident of killing. The chain of circumstances is not complete. Haridas (PW.14), an auto- rickshaw driver had seen the appellant and others only for a fleeting moment. Though the appellant and Vinu (A-2) were arrested, no Test Identification Parade was conducted. The statements of witnesses were recorded under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.') by a Magistrate who did not even mention the date of recording such statements, such statements were not exhibited before the court for the purpose of corroboration and confrontation. Jose (PW.8), Shanavas (PW.12), and Mohamamed Sherif @ Monai (PW.13), identified Praveen (deceased), by seeing only his passport sized photograph. This is not enough as Shanavas (PW.12), had seen the appellant and others including Praveen (deceased), only for a brief moment and thus, was unable to identify them in court after the lapse of a period of several months, during the course of the trial. Different parts of the body were found, and the identification of the dead body, merely on the basis of a mole on the leg of the body cannot be held to be proper identification by the father, as the dead body was recovered after a lapse of 3/4 days. Different parts of the body were recovered on different dates and by such time the skin would have dis-integrated entirely. Neither Vijayamma nor Radhamma were examined. Aji, who had disclosed information pertaining to the illicit relationship of Praveen with the appellant's wife, was also not examined. A DNA test was conducted on the dead body to determine whether the same was in fact, the body of Praveen (deceased). However, the FSL report disclosed that in respect of the chopper used for the purpose of dismembering the parts of the body, no blood group could be detected. The whole case of the prosecution hence, becomes unbelievable, and the conviction of the appellant is liable, to be set aside.;