Allowed

K. Geetha v. State of Kerala

Kerala HC12 Jan 2018CRL.A/1593/2013

Case brief

AI extract

What is this about?

Kerala HC allowed appeals by an accused woman and her husband against a murder conviction. The court set aside the judgment and acquitted the appellants, finding insufficient evidence due to lack of blood on recovered stone, weak identification of phone, and discrepancies in shoe recovery.

What did the court decide?

Criminal Appeals allowed, judgment of conviction and sentence set aside; appellants acquitted and directed to be released.

K. Geetha 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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FRIDAY, THE 12TH DAY OF JANUARY 2018 / 22ND POUSHA, 1939

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CRL.A.No. 1593 of 2013

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AGAINST THE JUDGMENT IN SC.NO.192/2009 OF THE COURT OF THE ADDL. SESSIONS JUDGE (ADHOC) I, KALPETTA, DATED 27-03-2013.

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APPELLANT/ACCUSED NO.2

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K. GEETHA, W/O. BABU, AGED 33/2009, MANGALASSERI COLONY, MANGALASSERI, VELLAMUNDA.

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BY ADVS.SRI.U.P.BALAKRISHNAN SRI.P.P.PADMANABHAN SRI.K.R.AVINASH (KUNNATH) SRI.C.H.ABDUL RASAC

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING SUB INSPECTOR, VELLAMUNDA POLICE STATION.

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BY PUBLIC PROSECUTOR SRI.S.U.NAZAR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-01-2018, ALONG WITH CRL.A.NO.678 OF 2013, THE COURT ON 12.01.2018 DELIVERED THE FOLLOWING:

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

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---------------------------------------------------Crl.Appeal Nos.1593 & 678 of 2013

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---------------------------------------------------Dated this the 12^th day of January, 2018

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JUDGMENT

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Somarajan, J.

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These two appeals preferred against the judgment of conviction under Sections 302, 120B and 201 read with Section 34 of the Indian Penal Code and the order of sentence passed thereunder by the Court of the Additional Sessions Judge (Adhoc) I, Kalpetta in S.C.No.192 of 2009, dated 27.3.2013.

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The gist of the prosecution case is that a dead body was found lying within the forest area at Mangalassery on 10.6.2008. Earlier, Ext.P1 FIS was lodged by PW1 on 7.6.2008 in connection with the missing of one Pavithran. On the basis of the information given by an autorickshaw driver, who was examined as PW3, search was conducted in and around the area wherein the dead body was found lying and detected the dead body in a decomposing stage. The dead

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Crl.Appeal Nos.1593 & 678 of 2013

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body was identified as that of Pavithran. The prosecution case

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is that accused Nos.1 and 2, who are the husband and wife, entered into a conspiracy to do away the victim as he was maintaining an illicit relationship with accused No.2 and later on demanded to share her illicit relationship with one of his friends. Thereon, they hatched a conspiracy to do away the victim and, in furtherance of their prior concert, accused No.2 invited the victim through telephone to the place of occurrence and accused No.1 inflicted injury on his head with a stone, resulting in his death.

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There is no eye witness to the alleged incident. The incriminating circumstances advanced by the prosecution through PW1 to PW22, Exts.P1 to P25 and MOs.1 to 17 series are: (1) The victim was maintaining an illicit relationship with accused No.2 and he demanded to share her body with another person, which is stated to be the motive behind the crime. (2) The material objects MO1 to MO6 were recovered based on the confession statement alleged to have been given

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Crl.Appeal Nos.1593 & 678 of 2013

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by accused No.2 while she was under police custody along with MO7 plastic cover and MO8 plastic string. (3) The phone call originated from the mobile phone of the victim to the land phone of the accused reveals the alleged role of the accused in the commission of the offence. (4) Canvass shoe belonged to the victim, identified as MO9, was recovered based on the confession statement given by accused No.1. (5) The laterite stone used for inflicting injury, identified as MO10, was recovered based on the confession statement besides MO11 series and MO12 watch belonged to the deceased.

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Though the learned counsel for the appellants strongly disputed the identity of the dead body as that of the victim on the ground that no scientific test was applied/conducted, we are not in a position to accept the said contention simply on the reason that the body of the victim was identified by PW1, PW2, PW6 and PW8. PW1 is the first informant who had given FIS regarding the missing of the victim on 7.6.2008. Later on, the body of the victim was

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Crl.Appeal Nos.1593 & 678 of 2013

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detected on 10.6.2008 and it was identified by PW1 besides the identification of MO1 and MO2 pants and shirt worn by the victim. The victim was known to PW1 and there is nothing to discredit the identification made by PW1. PW2 also identified the dead body as that of the victim besides the dress worn by the victim, identified as MO1 and MO2. He is a witness to Ext.P2 inquest report. PW6, a friend of the victim, also identified the dead body as that of the victim. Their evidence stood as corroborated by the oral evidence tendered by PW16, the wife of the deceased, who had identified MO1 and MO2 as that of the victim.

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To bring home the guilt of the accused and their alleged role in the commission of the offence, the prosecution mainly relied on the recovery of MO6 mobile phone under Ext.P4 mahazar, based on the confession statement alleged to have been given by accused No.2 while she was in police custody. The mobile phone was identified as that of the deceased by PW16, the wife of deceased, and PW7, the

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Crl.Appeal Nos.1593 & 678 of 2013

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brother of the deceased. The mobile phone was recovered without any SIM card and hence the identification made by PW16 and PW7 as that of the victim cannot be relied on unless there is corroboration as they could not say anything about the identification or identification marks, if any, present in the mobile phone. Further, it was recovered based on the confession statement of accused No.2 and hence cannot be used against accused No.1 unless there is a linkage connecting the recovery with the commission of the offence by accused No.1. The recovery of MO10 stone used for the commission of the offence cannot be accepted firstly on the reason that it was not lying concealed but it was lying at the place wherein the dead body was found lying, just 20 metres away, and it could be possible for the investigating officer to detect and recover the same by conducting a search in the near vicinity; and secondly on the reason that it is not an incriminating object as there is no blood stain or an incriminating factor attached to it.

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Crl.Appeal Nos.1593 & 678 of 2013

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The fact of recovery of the canvass shoe, identified as

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MO9, is also cannot be accepted as it was recovered from the place of occurrence, just few metres away from the place wherein the dead body was found lying. One of the legs of the deceased was found missing which, according to the Doctor who conducted autopsy, may be due to animal biting. The photographs taken by PW22, identified as MO17 series, would show that the dead body was found lying without one leg and hence the recovery cannot be brought under S.27 of the Evidence Act firstly on the reason that it was recovered from the place wherein the dead body was found lying, just few metres away; secondly on the reason that one of the legs of the body was found missing for which no explanation, except the opinion of a possibility of animal biting tendered through the Doctor who conducted autopsy, was advanced by the prosecution, existence of other hypothesis is relevant at this juncture; and thirdly on the reason that it is not clear why the accused have taken one of the shoes of the victim and kept aside. The other leg of the victim is having the shoe, which is

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Crl.Appeal Nos.1593 & 678 of 2013

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well evident from the photographs taken. The recovery of MO11 series and MO12 watch also has not been proved by examining any person who witnessed the recovery. Even if it is found that the watch is belonged to the victim, no evidence was adduced from where it was recovered and on what basis it was recovered.

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PW13 was examined to prove the call details of mobile phone of Pavithran, having number 9447444039. The call details were produced and marked as Ext.P11. Only one call was originated from the above said mobile phone on 4.6.2008 to a land phone number 04935 277339 and PW14 was examined to prove that the said land phone number belonged to accused No.2 Geetha. Even if it is assumed that a call was originated from the mobile phone of the victim on 4.6.2008 to the land number of accused No.2, it will not ipso facto taken as an incriminating factor in order to bring home the guilt of accused Nos.1 and 2. Further, it is against the case advanced by the prosecution with respect to the genesis

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Crl.Appeal Nos.1593 & 678 of 2013

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of the alleged incident. The fact that a telephone call was originated from the mobile phone of the victim to the land phone of accused No.2 alone is not sufficient to bring home the guilt of the accused. No other circumstance was brought out by the prosecution to prove the guilt of accused Nos.1 and 2, except the oral evidence tendered by PW7 that the victim maintained an illicit relationship with accused No.2 and accused No.1 possessed an intention to do away the victim which is stood as not supported by anything worth the name evidence. In short, the learned Sessions Judge committed a very serious error in convicting accused Nos.1 and 2 for offences under Sections 302, 120B and 201 read with Section 34 IPC. No offence has been established against accused Nos.1 and 2. Hence they are entitled to an order of acquittal of all the charges levelled against them.

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In the result, the Criminal Appeals are allowed, the judgment of conviction under Sections 302, 120B and 201 read with Section 34 IPC and the order of sentence passed

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Crl.Appeal Nos.1593 & 678 of 2013

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thereunder by the Court of the Additional Sessions Judge (Adhoc) I, Kalpetta in S.C.No.192 of 2009, dated 27.3.2013, is hereby set aside and the appellants are acquitted herewith. The appellants/accused Nos.1 and 2 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/

K. Geetha v. State of Kerala

Case brief

What is this about?

What did the court decide?

K. Geetha v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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