Allowed

Indal Choudari v. State of Kerala

Kerala HC1 Feb 2018CRL.A/1304/2012

Case brief

AI extract

What is this about?

High Court of Kerala allowed the criminal appeal against conviction for murder and dacoity. The court acquitted the appellants, holding the prosecution failed to establish the cause of death, motive, and exact date of the offence, and the confession statement regarding body recovery did not satisfy Section 27 requirements.

What did the court decide?

The appeal is allowed. The conviction and sentence for offences under Sections 302, 201, and 392 IPC are set aside. Accused Nos. 1 and 2 are acquitted and set at liberty.

Indal Choudari Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN

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THURSDAY, THE 1ST DAY OF FEBRUARY 2018 / 12TH MAGHA, 1939

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CRL.A.No. 1304 of 2012

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AGAINST THE JUDGMENT IN SC.NO.432/2011 ON THE FILE OF THE COURT OF THE II ADDITIONAL SESSIONS JUDGE, ERNAKULAM, DATED 20.9.2012.

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APPELLANTS/ACCUSED NOS.1 AND 2

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INDAL CHOUDARI S/O. VAKEEL CHOUDHARI, H. NO. 28, AGRAHAM POST, KHAJARIA DISTRICT, BIHAR STATE.

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2 CHATTU CHAUDARI S/O. NAGU CHAUDHARI, SINGAPORE THIRASSI, SAHASRA DISTRICT, BIHAR STATE.

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BY ADVS.SRI.JEEVAN BALAKRISHNAN SRI.G.SANTHOSH KUMAR (P). SMT.G.R.ANITHA KUMARI SMT.P.RAJATHA

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA THROUGH THE CIRCLE INSPECTOR OF POLICE, ANGAMALY, ERNAKULAM DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR MR.NICHOLAS JOSEPH

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.01.2018, THE COURT ON 01.02.2018, DELIVERED THE FOLLOWING:

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A.M.Shaffique & P. Somarajan, JJ.

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---------------------------------------------------Crl. Appeal No.1304 of 2012

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---------------------------------------------------Dated this the 1^st day of February, 2018

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JUDGMENT

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P. Somarajan, J.

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Against the judgment of conviction and order of sentence under Sections 302, 201 and 392 IPC in S.C.No.432 of 2011 of the II Additional Sessions Judge, Ernakulam, accused Nos.1 and 2 came up with this appeal.

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The prosecution case in nut shell is as follows: On the ill fated day, i.e. on 23.3.2010, accused Nos.1 to 3, in furtherance of their common intention to do away the victim one Kousal Kumar Shaw, strangulated him using a ligature - plastic wire - and accused No.3 caught hold on his head facilitating the commission of offence by accused Nos.1 and 2. The dead body was dumped in a tower line pit in Kuttadan padam and put in two bags containing metal gravel and thereby buried it partially. On the next morning, the pit was filled with soil by CW8 as directed by the accused persons. They took

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Crl. Appeal No. 1304 of 2012

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away the mobile phone and an amount of Rs.10,000/- belonged to the deceased.

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The disappearance of Kousal Kumar Shaw was noticed from the next day onwards, i.e. on 24.3.2010, by the co-workers. The accused persons told the company officials that the victim went to his native place, but after a few days, it has come to their notice that the victim did not reach his native place and that has resulted in the registration of a crime for 'man-missing'. Accused Nos.2 and 3 were arrested as suspects and based on the disclosure statement alleged to have been given by accused No.2 while in custody, the remains of the dead body was recovered from the place wherein it was buried.

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The FIR was lodged after 41 days by PW1 Dhurai before PW16 Sub Inspector of Police. PW19 Assistant Commissioner took over the investigation. Accused Nos.2 and 3 were arrested on 6.5.2010 at 2 p.m. The body of the deceased was detected and recovered from the place wherein it was buried, based on the disclosure statement alleged to have been given by accused No.2,

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along with two plastic bags containing metal gravel. Thereon, the Tahsildar, Aluva conducted inquest on the body and prepared Ext.P4 Inquest Report. Autopsy on the body was also conducted and prepared Ext.P10 Postmortem examination report. DNA identification of the dead body was conducted by collecting DNA profile of his natural father and mother through PW15 and DNA profile collected was found to be of the offspring of the biological father and mother of the victim. Scene mahazar also got prepared through PW19. PW20 is the investigating officer. Accused No.1 was arrested by PW18 on 16.3.2011 under the instruction of PW20 Sub Inspector of Police.

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There is no eye witness to the alleged incident and hence the prosecution heavily relied on the circumstantial evidence brought out through the witnesses, documents and material objects. The incriminating circumstances relied on by the prosecution are the following:

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(1) The dead body of the victim was detected and recovered based on the disclosure statement alleged to have been given by accused No.2. (2) The mobile phone belonged to the victim was

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recovered based on the disclosure statement given by accused No.2. (3) The accused and the deceased were last seen together on 23.3.2010 by 9.00 p.m. night and the victim was found missing from that night onwards. (4) The victim was absent from 24.3.2010 onwards. (5) Accused Nos.1 to 3 were in night duty on the alleged date of incident, i.e. on 23.3.2010 at the work place and the victim was also there in the work place. (6) On the next day morning the accused filled up the pit wherein the dead body was partially buried with two bags of metal gravel by giving instruction to CW8 (PW21) (7) Accused Nos.1 to 3 had offered a false explanation regarding the absence of the victim stating that he went to his native place. (8) The behaviour of accused Nos.1 to 3 regarding the missing of the victim was found to be not normal and they were concealing something from the notice of others and they have not even spared their anguish regarding the missing of one of them though all of them are from the State of Bihar and are came to the place of occurrence in search of a job for their livelihood.

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On the other hand, the appellants disputed the reliability of the above said circumstances mainly on the reason that (1) the

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muster roll relied on by the prosecution in order to prove the absence of the victim is a forged one; (2) the detection of dead body on the basis of the alleged disclosure statement is the result of a script and did not satisfy the requirements mandated under S.27 of the Evidence Act; (3) the recovery of mobile phone is of no use as its ownership or identity was not proved; (4) the cause of death of the deceased was not established; (5) the very genesis of the case of prosecution based on strangulation by a ligature was not established; (6) on the other hand, the hyoid bone found to be intact along with other neck structures which would rule out the possibility of death by strangulation; (7) the exact date of incident was not brought out; (8) other hypothesis showing involvement of persons other than the accused was not ruled out; (9) the real motive behind the crime was not established; and (10) the identity of the dead body recovered was not established.

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Let us examine the incriminating circumstances brought out by the prosecution and the defence set up by the appellants one by one. Before proceeding with the incriminating circumstances, it is necessary to look into the identity of the dead body recovered, which

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was in a highly decomposing stage and it was not at all possible to detect the identity of the person died. PW17 is the Doctor who conducted autopsy on the body. The condition of body remains is as follows:

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“Decomposed and partially skeletonised body of a man showing advanced signs of putrefaction. The body was brought in a blue plastic sheet which on opening contained a white plastic bag revealing a set of bones and relatively well preserved lower limbs showing adipocere formation. The body was in one stump extending from the pelvis downwards. A dark navy blue underwear with the manufacturer label (RUPAM) at the elastic seam was seen over the groin. The lower half of the body was seen separate in the blue bag with a three twined yellow colored plastic rope 0.5 cm in diameter tied around the ankles in a double loop with a reef knot placed at the outer aspect of left ankle. The loops of the tie bit through the ankle joints almost completely severing the right foot from the leg. There was a reef knot at the outer aspect of the left ankle from which four free ends were seen, three of them were 60 cm long and the fourth was 33 cm long with a knot at its terminal end. Both the lower limbs were pale yellow in colour, with adipocere formation forming a dermal jacket up to the lower groin area. The upper half of the body was not seen in anatomical continuity. The bones of the upper

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limbs, vertebral column, ribs, the skull and mandible were separate from the rest of the body with loss of skin, subcutaneous tissue and muscles of the region. Facial skin and tissues lost with almost complete skeletonisation of the skull. Eyelids and the globe absent. Shreds of blackish decomposed tissue seen clinging to the sides of skull. Mandible was found separated from the rest of the skull. Ears and nose absent. Teeth coloured pinkish. All sixteen teeth of the upper jaw had erupted. In the lower jaw the third molar bilaterally had not erupted (space present). The medial incisor on the right lower jaw, and the incisors and canines of the left lower jaw, were missing (postmortem loss). Lips absent. Tongue absent. Finger nails absent. (Postmortem loss). Hairs absent. External genitalia absent. Rigor mortis absent. Postmortem staining could not be made out due to decomposition. Decomposition precluded the detection of superficial injuries, if any.”

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The identity of the deceased is not discernible from the external features of the remains. So, the investigating officer has opted for scientific study by conducting DNA extraction and analysis by collecting DNA profile from the blood of the natural father and mother of the deceased. The natural father was examined as

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PW14. DNA profile and super imposition of the materials collected from the dead body and a study of the DNA profile collected from both the natural father and mother of the victim would give a conclusive finding that the dead body is that of the offspring of both the natural father and mother of the victim. The skull super imposition also reveals the identity of the victim. The remains of the dead body of the deceased was recovered from the work site though concealed in a tower pit. So it can be safely concluded that the prosecution has established the identity of the dead body as that of Kousal Kumar Shaw, the victim herein.

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The medical evidence tendered did not satisfy the real cause of death as it has become impossible to detect and develop an opinion regarding the real cause of death even after receipt of the expert evidence. The Doctor who conducted the postmortem examination had expressed his inability to find out the real cause of death especially when the hyoid bone and other neck bony structures were found to be intact at the time of autopsy and it would rule out the possibility of having a death by strangulation which would take away the very genesis of the prosecution case. But, it is

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settled law that the real cause of death would fall in insignificance when the body was detected after a long period and the remains of the dead body was recovered from the place wherein it was concealed by the accused persons, based on the confession statement given by accused No.2 while in custody, which casts a duty on them to explain how they came to know about the place of concealment and the factum of concealment of the dead body in that place. The matter then would come under the purview of S.106 of the Evidence Act and false explanation or non-explanation would be an additional link pointing towards the guilt of accused.

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One of the most incriminating circumstances relied on by the prosecution is the detection of the remains of the dead body from the place disclosed by accused No.2 while in custody. All the witnesses examined by the prosecution are in consistency that the dead body was recovered by removing sand from the place pointed out by accused No.2 by employing persons and machineries. They were employed on the morning of 6.5.2010. They could not recover the remains on that day though excavation was conducted, but it was detected on the next day, i.e. on 7.5.2010, from the base of one

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of the tower pits. It was recovered in the presence of PW13 Tahsildar, who conducted inquest on the body of the victim. He was very well present in the said place on 6.5.2010 and 7.5.2010. It has also come out in evidence that the Tahsildar was directed to conduct inquest on the body of the deceased by the District Collector as per order dated 5.5.2010. Accordingly, everything was arranged by the investigation to exhume the body of the deceased or its remains and it was started on 6.5.2010 at the presence of PW13 Tahsildar. Even according to the prosecution, the alleged disclosure statement of the accused is on 6.5.2010 at 2 p.m.. But, the arrangements for exhumation were made by the investigation on 5.5.2010 which is well evident from the fact that the District Collector had ordered the Tahsildar on 5.5.2010 to assist the investigation for exhumation and to conduct inquest based on their request. The fact that the District Collector had issued an order dated 5.5.2010 to the Tahsildar would sufficiently show that the place of burial of the dead body was known to the investigating officer even prior to the disclosure statement (confession statement) alleged to have been given by accused No.2 while in custody. The alleged confession statement is dated 6.5.2010 and it was recorded at 2 p.m. So the detection and

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recovery of the remains of the dead body based on the confession statement of accused No.2 will not stand and it will not render any assistance to the prosecution as the same would not satisfy the necessary ingredients which would attract Section 27 of the Evidence Act.

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The recovery of mobile phone based on the confession statement alleged to have been given by accused No.2 was not accepted by the learned Sessions Judge as the ownership and identity of the mobile phone has not been established by the prosecution beyond doubt. As such, the detection and recovery of MO5 mobile phone will not render any assistance to the prosecution.

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The last seen theory advanced by the prosecution was sought to be proved through PW1, PW3 and PW9 and Ext.P2 muster roll. The genuineness of Ext.P2 muster roll is under challenge as no absence was recorded on non-working days, such as holidays and Sundays. But, PW1, the Supervisor, had admitted that all Sundays will be working days and leave will be granted to the workers on their request. He had also advanced a case that

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Ext.P2 muster roll was maintained by the 'mastry' by putting his signature and he used to sign on the same after the signature of the 'mastry'. But, Ext.P2 does not satisfy the above said requirement as spoken by PW1. A mere perusal of Ext.P2 muster roll would show that it was prepared at a stretch without any corrections or over writing. A conscious attempt to prepare the same without mistake/ corrections/overwriting is writ large on its face and hence no much reliance can be placed on Ext.P2 muster roll. The attendance register signed by the workers and their payment slips are not produced. What is spoken by PW1, PW3 and PW9 regarding the missing of the victim Kousal Kumar Shaw right from the day on which the incident alleged to have been happened, i.e. on 23.3.2010, is consistent and there is nothing to doubt their credibility. The oral evidence tendered by PW1 that accused No.1 alone was there for night duty has to be appreciated by the oral evidence tendered by PW3 and PW9. But no satisfactory evidence was adduced by the prosecution to show the exact day of the alleged incident. The theory of last seen together can be applied when there is proximity in between the time in which the alleged incident might have been happened and the time in which the victim was found in

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the company of accused persons. The occurrence might have been within a span of time from which the victim was found missing and the dead body of the victim was detected. The dead body was detected on 7.5.2010 after about 45 days from the alleged date of occurrence, i.e. 23.3.2010, which causes a reasonable doubt as to the date of occurrence/commission of offence. It might be on 23.3.2010 or any other subsequent date after one week or two weeks or three weeks. It is true that nobody has seen the victim after 23.3.2010. At the same time, it is also not established by the prosecution whether he had gone out of the place and came back after two or three days or after one or two weeks especially when he is from Bihar. The existence of possibility of having the incident happened on a day other than 23.3.2010 would take away the theory of last seen together at 9 - 9.30 p.m. on the night of 23.3.2010 and it would pale in insignificance. It might be on a day after 23.3.2010 or on a day after one week or two weeks or three weeks. There is no satisfactory evidence to show and establish the exact date of commission of offence except the oral testimony of one of the witnesses that the pit was filled with soil on a day after the missing of the victim.

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The motive behind the crime is stated to be the hatredness towards the victim as he had overheard the discussion in between accused Nos. 1 to 3 to do away one of their close relatives for which also no satisfactory evidence was adduced.

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The explanation forwarded by the accused persons that the victim might have gone to his native place may not itself bring home the guilt of accused unless the prosecution establishes that they were lying in order to conceal the commission of offence. Even PW1 had admitted that he was under the impression that the victim might have been gone to his native place.

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The fact that the pit was subsequently filled with soil under the direction of accused persons is also not sufficient to bring home the guilt of the accused as there is nothing unusual in giving direction to fill up the pit around the tower by the persons employed for that purpose and it would be relevant only when the accused persons are aware of the concealment of a dead body in the said pit for which also no satisfactory evidence was adduced.

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From the above discussions, we are of the considered view that the prosecution has failed to establish all the circumstances consistent with the guilt of accused persons without leaving any missing link and hence the finding of guilt of accused under Sections 302, 201 and 392 IPC and the conviction and sentence thereunder will not stand. No offence has been proved against accused Nos.1 and 2 and hence they are entitled to an order of acquittal.

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In the result, the appeal allowed, the finding of guilt of accused Nos.1 and 2 for the offence under Sections 302, 201 and 392 IPC and conviction and sentence ordered thereunder are hereby set aside. Accused Nos.1 and 2 are found not guilty of any offence and hence acquitted and set at liberty. They shall be released forthwith if their detention is not required in connection with any other case.

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A.M. Shaffique Judge

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P. Somarajan Judge

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ahz/

Indal Choudari v. State of Kerala

Case brief

What is this about?

What did the court decide?

Indal Choudari v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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