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STATE OF KERALA versus SHAJI

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STATE OF KERALA v. SHAJI - CRL A No. 262 of 2007 [2007] RD-KL 3190 (12 February 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 262 of 2007()

1. STATE OF KERALA
... Petitioner

Vs

1. SHAJI
... Respondent

For Petitioner :PUBLIC PROSECUTOR

For Respondent : No Appearance

The Hon'ble MR. Justice J.B.KOSHY The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

Dated :12/02/2007

O R D E R

J.B. KOSHY and T.R.RAMACHANDRAN NAIR, JJ.

Crl. Appeal No. 262 of 2007 and Crl.M.Appln.No.64 of 2007

Dated this the 12th day of February, 2007

Judgment

Koshy,J.

Crl.M.Appln.No.64 of 2007 is a petition for condoning the delay of 347 days in filing the appeal. Even that petition and appeal were re-filed after 45 days of time given for curing the defect as appeal was filed with defects. The petition to condone the delay of 45 days in re-presenting the appeal was allowed. When the petition for condoning the delay of 347 days in filing the appeal was posted, we had directed the Public Prosecutor to find out the prima facie nature of the case so as to issue notice in the case.

2. We have heard the Public Prosecutor on merits also. The reasons stated for condoning the delay is that there is heavy work in the office of the Public Prosecutor. That is not at all a justifiable ground for condoning the long delay. The above reason can be given in all cases making the time limit fixed by the Statute a mockery. We are of the opinion that no sufficient reasons were given for condoning the delay. Therefore, delay Crl.A.No.262/2007 and Crl.M.Appln.No.64/2007 2 condonation petition and consequently the appeal is liable to be dismissed. However, since it is a murder case to satisfy whether any injustice will be caused by dismissing the appeal on the ground of delay, we have gone through the merits of the matter also.

3. It is settled law that an order of acquittal can be interfered by this court in appeal only if the findings of the trial court are perverse or patently illegal. Law in this regard is summed up in M.S. Narayana Menon @ Mani v. State of Kerala and another ((2006) 6 SCC 39). If the trial court took a possible view, appellate court will not interfere even if another view is also possible. In this case, there is no ocular evidence. For convicting the accused guilty on the basis of circumstantial evidence, court should be satisfied that all the links in the chain are complete and only hypothesis possible on the basis of the evidence adduced is that accused and accused alone is guilty of the offence (See: C.K. Raveendran v. State of Kerala - JT 1999 (9) SC 408 and Jaswant Singh v. State (Delhi Administration) - AIR 1979 SC 190). It is said that circumstantial evidence should be like spiders web leaving no exit for the accused to step away. It should not only consistent with the guilt of the accused, but, Crl.A.No.262/2007 and Crl.M.Appln.No.64/2007 3 should be inconsistent with his innocence (See: Mangleshwari Prasad v. State of Bihar - AIR 1954 SC 715). In a case of circumstantial evidence, the Court has to be on its guard to avoid damages of being swayed by emotional considerations (See: Balwinder Singh v. State of Punjab - AIR 1996 SC 607). It has been repeatedly held by the Supreme Court that the distinction between 'may be true' and 'must be true' is long and divides vague conjectures from sure considerations and each link must be covered by clear and unobjecting evidence by the prosecution before the accused is condemned as a culprit.

4. Prosecution relied on only three circumstances for commission of the crime. According to the prosecution, deceased Sarala, belonging to a scheduled caste community, fell in love with the brother of the accused who belonged to Thiyya community (OBC). This is the reason stated for commission of the crime, but, there is no evidence to prove that because of that the accused was having enmity with the deceased Sarala. Merely because the accused belonged to Thiyya community and Sarala belonged to scheduled caste, motive of the crime cannot be inferred on the accused. Some financial transaction of the deceased was also suggestive of motive and even though four witnesses were examined to prove the Crl.A.No.262/2007 and Crl.M.Appln.No.64/2007 4 same, all of them became hostile and none of them supported the case of the prosecution. The failure to prove motive is not fatal or indispose for the prosecution if there are either documentary or circumstantial evidence conclusively proving the guilt of the accused, but, when the proof of murder case recorded on circumstantial evidence, motive plays an important role. Even if motive is proved, that alone will not make a man guilty of a crime. It is only one of the links. Second circumstance relied on by the prosecution is the extra-judicial confession made by the accused to the police officer as well as to a friend of the accused, namely, PW3. The alleged crime was committed in the local jurisdiction of Kuttippuram police station. According to the prosecution, the accused went to Tirur police station and met the Sub Inspector of Police and PW1 made the confession and Ext.P1 FIR was registered on that confession. But, the F.I. statement was not marked. Even though the statement of the accused can be used for registering the FIR, the incriminating circumstances alleged to have stated by the accused to the police officer is not admissible in evidence in view of section 25 of the Evidence Act. When the accused himself gives the first information report, the fact of his giving the Crl.A.No.262/2007 and Crl.M.Appln.No.64/2007 5 information is admissible against him under section 8. But, a confessional FIR by the accused to the police cannot be used against him in view of section 25 as held by the Apex Court in Aghnoo Nagesia v. State of Bihar (AIR 1966 SC 119) and Khatri Hemraj Amulakh v. State of Gujarat (AIR 1972 SC 922). Here, even making of any confession as recorded in the FIR is not proved. Public Prosecutor cited the decision of a Division Bench of this court in Seethamaniyan v. State of Kerala (1996 (1) KLT 313) stating that if the police officer is not in charge of investigation, the prohibition under section 25 of the Evidence Act is not attracted. In that case, the accused, after committing the crime, went to an I.P.S. officer's house who was only in charge of the administrative functions and not entrusted with investigation and made the confession. Therefore, the statement was given to him not as a police officer, but, as a neighbour and at that time, the concerned IPS officer had no power of investigation as he was working in the administrative post and, therefore, the court held that he was not a police officer for the purpose of section 25. In this case, admittedly, PW1 is a police officer who has got power of investigation. In fact, the statement given by PW1 was considered and FIR was Crl.A.No.262/2007 and Crl.M.Appln.No.64/2007 6 registered and, therefore, admission given to that police officer is not admissible against accused. The Judicial Magistrate also was not called to record the confession. Therefore, the alleged extra-judicial confession to the police officer is not admissible in evidence. PW3 stated that somebody telephoned as Shaji and stated that he has committed the crime. Even though it is submitted by PW3 that he is a friend of the accused, it cannot be stated that he understood the voice of Shaji and there is no evidence to prove that Shaji himself telephoned even if that telephone conversation is correct. Extra-judicial confession is a weak piece of evidence as held by the Apex Court in Jagta v. State of Haryana (AIR 1974 SC 1545). Telephone conversation which is not proved to have been made by the accused cannot be stated to be an admission so as to connect the accused with the crime. At the maximum, even if it is proved, it can be taken as a corroborative evidence if there are any other substantive evidence. Extra-judicial confessions stated to be made by the accused to PW3 is not enough to connect the accused with the crime.

5. Third circumstance relied on by the prosecution is the res gestae statement said to have been given to PW10 by the deceased. PW10 is the son of a Crl.A.No.262/2007 and Crl.M.Appln.No.64/2007 7 nearby grocery shop. At about 11.30 a.m., Sarala came to the shop for purchasing grocery items and told PW10 that younger brother of Sajayan came. Even if that part is admissible, it is not a res gestae evidence. 'Res gestae' doctrine as enshrined in section 6 of the Evidence Act is an exemption to the general rule that hearsay evidence is not admissible, but, it is necessary that such fact or statement must be part of same transaction. Statement allegedly made by the deceased to PW10 is not part of the offence or incident. It was held in Bhaskaran v. State of Kerala (1985 Crl. L.J. 1711) as follows:

"The statement or declaration would be relevant and admissible as res gestae under section 6 Evidence Act read with Illustration (a) thereof only if it was that of a person who had seen the actual occurrence and uttered it spontaneously and simultaneously with the incident or so soon thereafter as to make it reasonably certain that the speaker was till under the stress of the excitement caused by his having seen the incident. A mere narration about a prior event should not Crl.A.No.262/2007 and Crl.M.Appln.No.64/2007 8 be covered by the provision. Similarly, statement by persons other than the one who witnessed it would only be hearsay." PW10 stated that he has not seen the accused anywhere in the shop or nearby. PW10 specifically stated that he has not seen the accused on that day. Therefore, a mere statement by the deceased that brother of her lover came (when and where were not revealed) cannot connect the accused with the crime. When and where brother of Sajayan came etc. was not revealed by her. Therefore, it has no connection at all with the incident and cannot be treated as res gestae event to connect the accused with the crime. Opinion as to cause of death mentioned in Ext.P19 postmortem certificate is that deceased died due to strangulation. MO3 thorthu was found near the dead body in that room and probable time of death is not mentioned in the postmortem certificate. Nobody has also seen the accused with the deceased on that day. When the accused made the alleged confession before PW1 and dress was taken into custody as MOs 1 and 2, but, no blood was detected in the dress of the accused. According to the accused, PW1 forcefully obtained the signature in a blank paper which is used as confession. None of the three circumstances were proved in this case and it is not Crl.A.No.262/2007 and Crl.M.Appln.No.64/2007 9 proved by the prosecution that there is conclusive evidence that accused is guilty and accused alone is guilty. Therefore, acquittal of the accused by the trial court cannot be said to be wrong in any aspect. Therefore, there is no merit in the appeal. In the result, the delay condonation petition and the appeal are dismissed. J.B.KOSHY

JUDGE

T.R.RAMACHANDRAN NAIR

JUDGE

vaa Crl.A.No.262/2007 and Crl.M.Appln.No.64/2007 10 J.B. KOSHY AND

T.R.RAMACHANDRAN NAIR, JJ.

Crl.Appeal No.262/2007 and Crl.M.Appln.No.64/2007 Judgment

Dated:12th February, 2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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