K SUKUMARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellant has been convicted under Section 302 for having committed the murder of one Gowri Amma on 16-2-1991 by the learned sessions Judge, Kasaragod, and has been sentenced to imprisonment for life. On appeal the said conviction and sentence has been affirmed by the High court of Kerala and hence the present appeal. It transpires from the records of the case that the accused himself lodged information at 9. 00 a. m. on 17-2- 1991 that Gowri Amma had died and on the basis of the said statement the police registered a case and proceeded with the investigation. In course of investigation the investigating agency came to the conclusion that it was not a case of unnatural death but of murder, and as such registered a case under section 302 and proceeded with further investigation. On completion of investigation being satisfied that prima facie case had been established against the accused-appellant, charge-sheet was submitted and on being committed the accused stood his trial. The plea of the accused is one of denial. The fact that the deceased met a homicidal death on account of stabbing injury to the neck is established through the evidence of the doctor, pw 2, who conducted the post-mortem examination on the dead body. But in the absence of any eyewitness to the occurrence the prosecution relied upon the circumstances established to bring home the charge against the accused-appellant. The circumstances, thus, relied upon by the prosecution have been enumerated in para 7 of the judgment of the High Court as under:

(2.) On relying upon the aforesaid circumstances, the High Court affirmed the conviction of the appellant under Section 302 on the finding that the circumstances unerringly point towards the guilt of the accused. The question for consideration is whether any of the circumstances can be said to have not been proved and if all the circumstances can be said to have been proved then whether the circumstances thus proved are so complete that they point only towards the guilt of the accused and are inconsistent with the hypothesis of his innocence. Mr Lalit appearing for the appellant contended that circumstances 1 to 5 cannot be held to be incriminating circumstances so far as the accused-appellant is concerned. He further contends that Circumstance 10 which could have been a clinching circumstance against the accused cannot be said to have been established by the prosecution, once the learned Sessions Judge and the High Court discarded the prosecution case that the accused while in custody made a statement to the investigating officer and led the investigating officer to give recovery of the articles including MOs 5 and 6. According to the learned counsel if Circumstance 10 is excluded from the purview of consideration then on the residue of circumstances it cannot be said that it is the accused who alone can be said to have committed the offence of murder. Mr Nair appearing for the respondent state, on the other hand, contended that even if the statement alleged to have been made by the accused has been discarded by the courts below, the factum of recovery of MOs 5 and 6 which belonged to the accused has been established and if that be so then the presence of blood of AB group which is also the blood group of the deceased on the said MOs 5 and 6 is a clinching evidence so far as the accused-appellant is concerned, and that circumstance taken together with Circumstances 7, 8 and 9 indicating that the accused and deceased were seen together in the house at 6.15 p. m. clinches the matter and the conviction is well sustainable. Having examined the rival contentions and examining the circumstances enumerated by the High Court in para 7 of the judgment, we find that the most clinching circumstance is Circumstance 10, namely, the presence of AB group of blood on MOs 5 and 6, said to be the clothes of the accused and the blood group of the deceased was also AB group. Indisputably, the evidence of PW 1 which has been relied upon by the two courts below indicated that the accused was present in the house of the deceased on 16-2-1991 when PW 1 left the house and came to his own house. Therefore, it establishes the fact that PW 1 saw the accused and the deceased in the house on the previous night at 6.15 p. m. It is otherwise also established that in the house the accused and the deceased alone were staying, the accused being a servant of the deceased. The learned Sessions judge has considered the prosecution story of the accused making a statement to the investigating officer while in custody and thereby giving recovery of MOs 5 and 6 in para 54 of his judgment and has come to the conclusion that the theory that MOs 5 and 6 were recovered on the basis of the alleged statement Ext. P-13 given by the accused on 5-3-1991 after his arrest is not acceptable, and is thus not established by the prosecution. The learned Sessions Judge has also made severe comments on the conduct of the investigation made by the investigating officer. In the aforesaid premises, even if the recovery of MOs 5 and 6 from the place where they are said to have been found can be said to have been established through the evidence of pws 1 and 12 but the crucial issue for consideration is that on what material the prosecution can be said to have established the fact that those MOs 5 and 6 belonged to the accused and had been worn by the accused on the previous date of the occurrence. This aspect of the prosecution case is based upon the testimony of PW 1. That he was examined by the investigating officer 4 days after the occurrence though PW 1 himself has stated that he was interrogated by the police on the very next day of occurrence but yet the investigating officer does not support the same. If it is true that the accused came to PW 1 on 16-2-1991 at 8.30 p. m. , as alleged by PW 1, and told him that the said tobacco in question was purchased by the deceased and not by PW 1, on what basis the witness might have suspected the role of the accused. It is not known why for 4 days he remained silent and did not disclose the same to anybody, much less the investigating officer even if the investigating officer was present at the scene of occurrence on the very next date. Then again no particular feature of MOs 5 and 6 has been indicated by the witness for which he was able to tell that the said MOs 5 and 6 belonged to the accused and he had worn them on 16-2-1991. In the aforesaid premises, it is difficult for us to rely upon the testimony of PW 1 to come to the conclusion that mos 5 and 6 belonged to the accused and the accused had worn the same on 16-2-1991 when PW 1 met with him in the house of the deceased at 6.15 p. m. If it is not established that MOs 5 and 6 belonged to the accused then the presence of blood of the same group as that of the deceased is of no consequence and cannot be a circumstance against the accused. In our view, therefore, Circumstance 10 enumerated in para 7 of the judgment of the High court cannot be said to have been established by the prosecution. If that is excluded from the purview of consideration then the other circumstances proved by the prosecution evidence can only go to the extent that the accused and the deceased were seen together on 16-2-1991 at 6.15 p. m. That circumstance alone cannot lead to the conclusion that it is the accused who is the perpetrator of the crime in question. In the aforesaid premises, we have no hesitation to come to the conclusion that on the circumstances established it cannot be said that the charge of murder against the accused-appellant has been proved beyond reasonable doubt. We, therefore, set aside the conviction and sentence against the accused-appellant and acquit him of the charges levelled against him. The appeal is allowed. The accused-appellant be set at liberty forthwith, unless required in any other case.