Dismissed

Suharabeevi v. Anoop B.C.

Kerala HC20 Feb 2019CRA(V)/1686/2013

Case brief

AI extract

What is this about?

Appeals by the victim's widow and the State against the acquittal of the accused in a mosque-morning murder case resting wholly on circumstantial evidence. The court found the dying declaration did not name the accused, the last-seen witnesses incredible, the recovery of the chopper doubtful and the motive unproved, and confirmed the acquittal.

What the court decided

AI extract

Suharabeevi Vs Anoop B.C. — Murder and Culpable Homicide | Kerala HC (2019)

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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

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THE HONOURABLE MR. JUSTICE A.M.BABU

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WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940

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CRA(V).No. 1686 of 2013

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AGAINST THE ORDER/JUDGMENT IN SC 569/2009 OF THE COURT OF SESSION, KOZHIKODE DIVISION DATED 22-10-2013

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APPELLANT/S:

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SUHARABEEVI

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W/O SEETHIKOYA HAJI, RESIDING AT AFFIRA MANZIL, VARATTYAKAL, KUNNAMANGALAM, KOZHIKODE DISTRICT

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BY ADV. SRI.SUNNY MATHEW

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RESPONDENT/S:

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1 ANOOP B.C.

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S/O BALACHANDRAN, RESIDING AT KARTHIKA KODAMBATTIL, VARATTYAKK, KUNNAMANGALAM P.O, KOZHIKODE DISTRICT WITHIN THE LIMITS OF KUNNAMANGALAM POLICE STATION 673001

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2 THE CIRCLE INSPECTOR OF POLICE

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CHEVAYUR, KOZHIKODE CITY, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031

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R2 BY ADV.S.U NAZAR, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL(V) HAVING BEEN FINALLY HEARD ON 17.1.2019, ALONG WITH CRL.A.1155/2015, THE COURT ON 20.2.2019 DELIVERED THE FOLLOWING:

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Crl.A (V)No 1686/2013 & Crl A No.1155/2015

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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

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THE HONOURABLE MR. JUSTICE A.M.BABU

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WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940

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CRL.A.No. 1155 of 2015

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AGAINST THE ORDER/JUDGMENT IN SC 569/2009 OF THE COURT OF SESSION, KOZHIKODE DIVISION DATED 22-10-2013

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APPELLANT/S:

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STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

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BY ADV.S.U NAZAR, PUBLIC PROSECUTOR

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RESPONDENT/S:

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ANOOP B.C., AGED 34 YEARS S/O.BALACHANDRAN, KARTHIKA HOUSE, KODAMBATTIL, VARATTYAK, KUNNAMANGALAM.

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BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.T.K.SANDEEP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.1.2019, ALONG WITH CRA(V).1686/2013, THE COURT ON 20.02.2019 PASSED THE FOLLOWING:

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JUDGMENT

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A.M.BABU, J.

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Both the appeals are directed against the judgment of the court of session, Kozhikode division in S.C 569/2009. The accused therein was charged under Secs 302 and 447 of the Indian Penal Code (IPC). He allegedly trespassed into the compound of a mosque and committed murder of a person by name Seethikoya Haji. The accused was acquitted of both the charges under Sec. 235(1) of the Code of Criminal Procedure (Cr.P.C) by the 5^th additional sessions judge of the said court. The widow of the deceased who gave evidence as PW29 is the appellant in Crl A. 1686/2013. Crl A. 1155/2015 is filed by the State of Kerala.

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Prosecution case is stated below: Seethikoya Haji was the secretary of Chathamangalam juma-ath mosque committee. The accused had a suspicion that Seethikoya Haji did organise people to do away with the accused on the premise that the accused made an attempt to commit murder of two muslims at a place called Kalarikandi. The accused had a misunderstanding that Seethikoya Haji had propagated that the accused destructed the electric wiring done in a partly completed building which belonged to the mosque. The accused committed criminal trespass into the compound of the aforesaid mosque with intent to commit murder of Seethikoya Haji. The accused committed murder of Seethikoya Haji by cutting him with a chopper. It was at 4.55 a.m on 21.6.2009 the incident.

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FI statement was given. FIR was registered. Investigation was conducted. Charge-sheet was filed. The case was committed to the court of session. The learned sessions judge made over the case to the learned additional sessions judge who tried the case.

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The accused denied the charges framed against him. He claimed to be tried. Hence the prosecution entered on evidence. PWs 1 to 37 were examined and Exts P1 to P38 and MOs 1 to 17 were marked on the side of the prosecution. Exts D1 to D5 were brought as contradictions on defence side during prosecution evidence. The trial court examined a psychiatrist as CW1 and marked the certificate issued by him as Ext C1 in order to ensure that the accused was fit to stand trial. On completion of the prosecution evidence the accused was examined under Sec.313 of Cr.P.C. He denied the incriminating evidence and circumstances brought against him by the prosecution. The learned trial judge found that the accused was not entitled to acquittal under Sec.232 of Cr.P.C. Hence he was called upon to enter on his defence and adduce evidence. He examined DW1 and marked Ext D6 through DW1. The learned trial judge heard both sides and acquitted the accused under Sec.235(1) of Cr.P.C. The acquittal is assailed in the appeals on hand.

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We have heard Sri. Sunny Mathew, Sri.S.U Nazar (public prosecutor) and Sri.Arjun Sreedhar who appear for the appellant/victim in Crl A. 1686/2013, the appellant/State in Crl A. 1155/2015 and the accused respectively.

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The trial court found that Seethikoya Haji had a homicidal death. For reasons given below we confirm the said finding. PWs 1 and 5 saw Seethikoya Haji with bleeding wounds on his neck. PW32 who conducted autopsy and who authored Ext P22 autopsy certificate deposed to the injuries he found on the dead body of the deceased. There were five ante-mortem incised wounds. The sites of injuries were neck, chest and face. Four out of five injuries were deep incised wounds and the remaining one was a superficial incised wound. The victim was examined before his death by another doctor who was examined as PW37. He prepared Ext P38 wound certificate. As deposed by PW37 and as seen from Ext P38, there were five incised wounds on the person of the victim. With the evidence discussed above, the prosecution could prove that Seethikoya Haji was murdered. And, his homicidal death was not disputed by the defence.

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The prosecution should prove beyond reasonable doubt that the accused was the murderer. The prosecution is without ocular evidence to prove the complicity of the accused. The prosecution relies on circumstantial evidence. The learned counsel for the appellant/victim submits that there are four proved circumstances to establish the guilt of the accused. Those circumstances, according to the learned counsel, are (i) dying declaration, (ii) last seen together, (iii) recovery of bloodstained weapon and recovery of bloodstained cloths of the accused at his instance and as per his information and (iv) motive. We shall consider the evidence.

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PWs 1 and 5 are the persons to whom Seethikoya Haji stated the cause of the injuries sustained by him. Both the witnesses were in the mosque for their morning prayer called 'subahi'. They heard someone uttering “mollakka mollakka”. The witnesses came out of the mosque. They saw Seethikoya Haji sitting on the step of the mosque with bleeding wounds on the neck. PWs 1 and 5 enquired what happened. They deposed to what they heard from the injured. PW1 spoke that Seethikoya Haji stated that he was chopped by a person of huge size at the gate of the mosque. PW5 deposed that the victim divulged that he was stabbed by a person of big size. We need not consider the discrepancy in the evidence whether the assailant chopped or stabbed the victim. What we need to state now is only that the name of the accused was not stated to PWs 1 and 5 by Seethikoya Haji as the culprit who inflicted the injuries. In crossexamination PW1 claimed to have heard the victim stating to the son of the victim that someone who looked like a mad man stabbed the victim. We leave the question whether the said evidence of PW1 is believable or not. In the said statement of the victim too the name of the accused was not mentioned. It is clear from the evidence of PWs 1 and 5 that Seethikoya Haji, while stating about the cause of injuries sustained by him, did not state the name of the accused; nor did the victim give any indication that the accused could be the assailant. There is nothing in the dying declaration of Seethikoya Haji to pin the crime on the accused. One of the circumstances highlighted by the

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learned counsel for the appellant/victim goes.

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In order to prove the circumstance of last seen together, the prosecution relies on the evidence of PWs 11 and 12. Both of them were auto rickshaw drivers at the relevant time. They claimed to have seen Seethikoya Haji and the accused soon before the incident on the road near Chathamangalam mosque. The trial court did not believe the evidence tendered by PWs 11 and 12. According to the learned counsel for the appellant/victim, the trial court erred in disbelieving the vital evidence given by PWs 11 and 12. We shall consider the evidence of those witnesses in detail.

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We shall narrate the evidence of PWs 11 and 12 which the prosecution considers favourable to it. PW11 spoke as follows: He was in his goods auto rickshaw driving it for the supply of bundles of Deshabhimani daily to its agents. When he crossed the bridge called Chethukadavu palam, he saw Seethikoya Haji walking on the road on the right hand side of PW11. He saw the accused on the same road walking in the same direction 10 mtrs behind Seethikoya Haji. Both of them were seen by PW11 near a ground where driving tests were conducted. He saw them at around 4.45 a.m on 21.6.2009 in the light of the headlamp of the auto rickshaw. The road has a curve at the point where the witness saw Seethikoya Haji and the accused. The accused wore a T-shirt and a saffron coloured dhoti. He tied a bath towel on his head. The victim and the accused were seen by the witness 150 mtrs away from the mosque.

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PW12 stated as under: He was on a trip in his auto rickshaw taking the priest of a temple at Thondayad to the temple. At about 4.45.am on 21.6.2009 PW12 on his way to the said temple saw Seethikoya Haji walking on the road. The accused was walking behind Seethikoya Haji. They were seen by PW12 near the sub-registry office in the light of the headlamp of the auto rickshaw. The accused wore a T-shirt and a saffron dhoti. He tied a bath towel on his head. Both Seethikoya Haji and the accused were persons known to PW12.

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The question is whether the trial court erred in disbelieving PWs 11 and 12. Going by their evidence, they saw the victim and the accused more or less at the same time and place. The only source of light as per the evidence of PWs 11 and 12 was the light from the headlamps of their respective auto rickshaws. It is also clear from their evidence that they and the victim as well as the accused were proceeding in the same direction. Therefore, in the normal course, the witnesses could see the victim and the accused only from behind. The prosecution should explain how PWs 11 and 12 could see the faces of the victim and the accused in order to identify them as the persons who were walking on the road. The prosecution attempted an explanation through PW11. He spoke to a curve on the road at the spot where he saw the victim and the accused. PW11 stated in crossexamination to the effect that he could identify the victim and the accused only because he saw them at the curve. That means it was not possible to see the faces of the victim and the accused if there

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was no such curve. It should be taken so as they and the witnesses were proceeding in the same direction. The statement of PW11 was taken by the investigating officer under Sec.161 of Cr.P.C and by the magistrate under Sec.164 of Cr.P.C. PW11 asserted to have stated to the investigating officer and the magistrate about the existence of the curve on the road. The statement of PW11 under Sec.161 of Cr.P.C was recorded by PW36 who investigated the case and filed the charge-sheet. He conceded that no witness whom he questioned stated about a curve on the road. The defence could thus prove that the curve was introduced at the trial by the prosecution through PW11 to make it appear that the faces of the victim and the accused could be seen by the witnesses. The curve on the road had been proved by the defence to be an omission amounting to contradiction on a material point within the meaning of the explanation to Sec.162 of Cr.P.C. In view of the said material contradiction, the evidence of PW11 that he saw the faces of the victim and the accused should be discarded.

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Ext P9 is the statement of PW11 given to the magistrate under Sec. 164 of Cr.P.C. Ext P9 does not corroborate the evidence of PW11 on the curve on the road. He did not state in Ext P9 statement anything about the curve. His assertion that he did state to the magistrate about the curve is proved false. PW12 did not depose to any such curve on the road. He did not testify how could he see the faces of the victim and the accused. PW12 should have explained it

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as he and the said two persons were proceeding in the same direction. PW36 prepared Ext P4 scene mahazar in which the road is described. The said road is shown in Ext P16 sketch prepared by PW21 who was the village assistant. Neither in Ext P4 mahazar nor in Ext P16 sketch is shown the curve. PW36 had to concede in cross-examination that the mahazar did not show the existence of any curve between the bridge (chethukadavu palam) and the mosque. Ext P24 sketch of the road is prepared by PW33 while he was the assistant engineer of Karanthur PWD road section. The said sketch too does not show any bend or curve on the road on the east of the bridge. In the absence of a curve on the road it was impossible for both PWs 11 and 12 to see the faces of the two persons whom they claimed to have seen on the road at 4.45 a.m on 21.6.2009. It is impossible to believe the evidence of PWs 11 and 12 that they saw the victim and the accused walking on the road just before the incident.

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We have more reasons to reject the evidence of PWs 11 and 12 on last seen circumstance. PW11 is the owner and driver of his goods carriage auto rickshaw bearing registration no.KL-57/5320 as stated by him. He spoke that he used to write GCR (Goods Carriage Record) in respect of his trips. But, as conceded by him, he did not write in the GCR in respect of the trip he had on the crucial day (21.6.2009). He did not offer any explanation why he did not show in the GCR anything about his trip in the early morning of 21.6.2009. This makes his evidence suspicious. It is so since he was

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in the habit of making entry in the GCR in respect of every trip.

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'A'zaan' is an Arabic word. The people in Kerala calls it

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'ബബാങങ' . That was the word used by some of the witnesses. It is an Islamic call to prayer. The call is given five times a day in every mosque. The 'a'zaan' for 'subahi' (early morning prayer) on 21.6.2009 was at 4.39a.m. PW25 spoke so. He was the priest of the mosque at Varattiyakkal. He spoke that in his mosque the person who used to give the morning 'a'zaan' call was Seethikoya Haji. The said evidence of PW25 was corroborated by PW29, the widow of Seethikoya Haji. PW29 spoke that her husband used to go to Chathamangalam mosque after giving the 'a'zaan' call at the nearest mosque (Varattiyakkal mosque). According to the prosecution, Seethikoya Haji was proceeding to Chathamangalam mosque from Varattiyakkal mosque on 21.6.2009. PW12 spoke that he saw the victim and the accused on the road five minutes after hearing the 'a'zaan' call. According to PW12, he saw them at 4.45 a.m near the sub-registry office. PW11 also claimed to have seen the victim and the accused at 4.45 a.m and he saw them near the driving test ground. The said ground is very close to the sub-registry office as seen from Ext P24 sketch. That means if PWs 11 and 12 had seen the victim and the accused on 21.6.2009, they were seen by the witnesses more or less at the same

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place and time as we have already stated. Now the question is whether Seethikoya Haji could reach 150 mtrs away from Chathamangalam mosque at 4.45 a.m. It was possible for PWs 11 and

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12 to see the victim at 4.45 a.m 150 mtrs away from Chathamangalam mosque only if the victim could reach near the said mosque from Varattiyakkal mosque within five minutes or so. The distance between the two mosques is not known. But the travelling time by foot is 20 minutes. It was PW12 himself who spoke in court that the time needed to reach Chathamangalam mosque from Varattiyakkal mosque was 20 minutes. When that be so, it was impossible for Seethikoya Haji to reach the place where he was allegedly seen by PWs 11 and 12 from Varattiakkal mosque at 4.45 a.m after commencing the 'a'zaan' at 4.39 a.m and completing it within 2 or 3 minutes. The evidence of PWs 11 and 12 on last seen circumstance cannot at all be believed. The trial court is fully justified in suspecting and rejecting their evidence. We also do so.

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The prosecution examined PWs 10 and 13 to strengthen the evidence of PWs 11 and 12 on last seen circumstance. PW10 stated that he and three others were at the junction on the main road from 4.15 a.m on 21.6.2009 and that he saw two auto rickshaws plying on the road. He did not state as to at which junction of the main road he was. There is nothing in his evidence for the prosecution to establish that the auto rickshaws seen by him were those of PWs 11 and 12. PW13 was disloyal to the prosecution. It did not gain anything from PW13. He spoke that he saw Seethikoya Haji between 3.45a.m and 4.00 a.m. The witness stated that he did not see anybody behind Seethikoya Haji. According to PW13, he saw the

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accused half an hour later after seeing the victim. The witness deposed in cross-examination that what he saw was the return of the accused at 5.15 a.m. There is nothing in the evidence of PWs 10 and 13 for the prosecution to take advantage of.

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We move on to the next circumstance. It is the recovery of the bloodstained weapon and also the recovery of the bloodstained cloths of the accused at his instance and as per the disclosure statement made by him. The weapon is MO14. It is a chopper. PW36 arrested the accused on 23.6.2009. The former deposed to the disclosure statement allegedly made by the latter. The accused allegedly disclosed that he had thrown the chopper into the bush on the side of the way leading to the Chethukadavu river and stated that he would show the place and the chopper. According to PW36, on the basis of the disclosure statement made by the accused and as led by him the police party led by PW36 reached the aforesaid bush with witnesses and the accused. PW36 added that after a search in the bush the accused took the chopper and produced it before PW36. PW36 stated that he seized MO14 and prepared Ext P20 seizure mahazar to evidence the seizure. PW30 is one of the witnesses to the seizure and the seizure mahazar. He spoke that he witnessed the accused searching in the bush, taking out the chopper from the bush and handing it over to the circle inspector. PW30 identified MO14 to be the said chopper. He deposed that he signed Ext P20 as a witness after the contents of it were read over to him. Sec.27 of the Indian

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Evidence Act is pressed into service by the prosecution and the appellant/victim.

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What comes within the purview of Sec.27, Indian Evidence Act, is not the mere recovery of any object based on the information given by an accused. Sec.27 which is a proviso to Secs 25 and 26 of the Evidence Act provides that when any fact is deposed to as discovered in consequence of information received from an accused in police custody, so much of such information as relates distinctly to the fact thereby discovered may be proved. It goes without saying that the fact discovered consequent to the information given by the accused must be an incriminating fact against him. Therefore the prosecution should prove by producing sufficient material that MO14 was the weapon with which injuries were, or could have been, inflicted on the neck of the victim.

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PW32 who conducted autopsy spoke to the injuries he found on the dead body. The injuries were the following:

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Incised wound 7 x 1 x 2cm over front of neck, transversely placed, mid portion of wound 6cm above suprasternal notch. The right end of the wound appeared sharp. The left sternohyoid muscle was cut. Left end of the wound was broad. Over the thyroid cartilage, there was a superficial cut 3cm long.

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Incised wound 'U' shaped 9x3cm bone deep, over left side of face. Lower front end was 8cm behind chin and over jaw margin. Upper back end was 2.5cm in front of ear lobule.

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Incised wound 14x6x4.5cm over left side of neck close to angle of

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mandible. There was a horizontal portion with its end 3cm below ear lobule 6cm away from the back end of the wound, has a vertical portion directed downwards for 8cm with side cuts and raising of flap. Lower portion of parotid gland and internal jugular vein was cut. Other small veins of neck were also cut.

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Superficial incised wound 3x0.5cm raising a tag of skin just in front of tragus of left ear, 3cm away from back end of injury no.2.

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Incised wound 7x0.2x6cm over back of right side of chest oblique, the lower inner end was 3cm to the right of midline and 5cm below root of neck. Both ends were sharp. The wound was directed downwards, inwards and to the front. The wound was broader at periphery and narrowed towards depth. The wound had not entered the chest cavity. It was in close proximity with the rib cage.

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PW32 opined that all the incised wounds noted by him on the corpse were possible to be inflicted with MO14 chopper. In cross-examination he spoke that the incised 'U' shaped wound (injury no.2) could be caused by a double edged weapon and that MO14 was not a double edged weapon . It cannot be said that the defence gained much from the said evidence of PW32 inasmuch as he did not state that the 'U' shaped wound could not at all be inflicted with a single edged weapon. But the tip of MO14 is curved as stated by PW32. His evidence suggests that injury no.3 is an irregular wound which could be caused with the curved tip of MO14. PW32 added that the other injuries found on the corpse were not possible to be inflicted with the curved tip of MO14. In view of the said evidence of PW32 it is not safe to accept MO14 as the weapon with which injuries were inflicted on

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the person of the victim. The benefit of doubt should go to the accused. Sec.27 of the Evidence Act does not come to the aid of the prosecution to prove the complicity of the accused.

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PW32 at the time of post-mortem examination collected the blood of the deceased and preserved it for chemical examination. Ext P23 is the report of chemical examination. It shows that the blood of the deceased was identified to be of 'B' group. MO14 chopper was also sent for chemical examination. Ext P32 is the chemical examination report on MO14. The report states that the bloodstains on the chopper were identified to be of 'B' group. Detection of 'B' group blood on MO14 is favourable to the prosecution.

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But the trial court said that the possibility of tampering with MO14 could not be ruled out. Sec. 102 (1) of Cr.P.C provides that any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. It is insisted on under sub-sec.(2) of Sec.102 of Cr.P.C that every police officer acting under sub-sec.(1) shall forthwith report the seizure to the magistrate having jurisdiction. PW36 who seized MO14 did not report the seizure to the magistrate forthwith. Nor did he produce MO14 without delay. The seizure was on 23.6.2009. It was produced before the magistrate along with other material objects on 25.6.2009 along with Exts P30 series property lists as stated by PW36.

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He did not offer any explanation for the delay in reporting the seizure

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to the magistrate. We do not mean to say that there was inordinate delay in producing MO14 before the court or that the delay in reporting the seizure to the magistrate, by itself, is fatal to the prosecution. But the unexplained delay in reporting the seizure to the magistrate should be read along with another aspect. It is seen from Ext P32 report of chemical examination that the blade and the handle of the chopper were moderately stained with blood. When that be so, it cannot be contended that PW36 did not or could not notice the bloodstains on the handle and blade of MO14. Ext P20 seizure mahazar relating to the seizure of MO14 is silent about any bloodstain on the handle. What Ext P20 recites is only that rust and stain were seen on the tip of MO14. It is not even stated that it was a bloodstain. PW36 spoke that he checked the handle and blade of MO14 at the time of its seizure, but he did not see anything other than the rust and stain he mentioned in Ext P20. It was also his evidence that he was unable to say whether the stain he noticed was a bloodstain. The evidence of PW36 discussed above and Ext P20 do suggest that the handle and blade of MO14 were not bloodstained at the time of seizure. It should be concluded that the blade and handle of MO14 were moderately stained with blood at the time when it reached the laboratory of the chemical examiner, but it was not so at the time of its seizure. The possibility of tampering with MO14 is on the higher side. Therefore the delay in reporting the seizure and producing the property is crucial. No incriminating fact against the accused was

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discovered by reason of the recovery of MO14.

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MO15 saffron dhoti, MO16 T-shirt and MO17 towel are stated to belong to the accused. PW36 spoke that MOs 15 to 17 were produced before him by the accused at the house of the accused. Ext P21 is the seizure mahazar. MOs 15 to 17 were also chemically examined. Ext P32 report of chemical examination states that no blood was detected on MO16 T-shirt. It is seen from the said report that there were only two small spots of stains of blood on MO15 saffron dhoti and only a single spot of stain of blood on MO17 towel. The stains on MOs 15 and 17 were identified to be human blood. But the blood group could not be ascertained for want of sufficient quantity of blood stains for conducting the grouping test. Therefore there is no evidence to find that the blood of the deceased was detected on any dress of the accused. Recovery of MOs 15 to 17 cloths of the accused and the recovery of MO14 chopper cannot be taken as a circumstance proving the guilt of the accused.

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Onto motive. Proof of any motive will not take the prosecution anywhere in the absence of any incriminating evidence against the accused. However, we shall consider it in order to complete the judgment.

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The prosecution alleges a dual motive. It is alleged that the accused had a suspicion that Seethikoya Haji had organised people to finish off the accused believing that the accused attempted to kill two muslims at Kalarikandi. It is also alleged that the accused

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had a misunderstanding that Seethikoya Haji propagated that the accused destructed the electric wiring in a partly completed building which belonged to the mosque. We shall first consider the first allegation on motive.

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The witness examined by the prosecution to prove the first motive was PW14. He did not speak to it in court. He did not support the prosecution. He turned hostile to the prosecution. The contradicted portion from the statement of PW14 recorded under Sec.161 of Cr.P.C was marked as Ext P11. He denied having given Ext P11 statement suggesting the motive. The prosecution gained nothing by the examination of PW14.

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The documents marked as Exts P36 series are the FI statement, FIR and charge-sheet in crime no.322/2008 of Kunnamangalam police station. The offences alleged therein are those punishable under Secs 307 and 324 of IPC. The accused in the present case is the accused in crime no.322/2008 too. Exts P36 series documents were produced to establish that the accused attempted to commit murder of two muslims. The allegation in the said case was that the accused inflicted cut injuries on two persons by name Majeed and Kunhali with a chopper and attempted to inflict injuries on two persons by name Prakasan and Premrajan. As seen from Exts P36 series documents and as admitted by PW36 himself, there was no communal issue in the said case. The motive alleged in that case was

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an issue relating to drawing of water from a well. Exts P36 series FI

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statement, FIR and charge-sheet also do not help the prosecution to prove the communal motive alleged against the accused.

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PWs 5 and 26 were examined to prove the other motive alleged by the prosecution. PW5 spoke that the mosque committee constructed a two-storied building under the supervision of Seethikoya Haji. PW5 added that when he asked the accused whether the accused was the person who destroyed the wiring done in the said building, the accused asked PW5 whether Seethikoya Haji was the person who told so to PW5. This much evidence of PW5 is quite insufficient to prove the alleged motive. The said evidence of PW5 was proved to be an improvement made by him at the trial inasmuch as he conceded that he did not state to the investigating officer about the aforesaid conversation between him and the accused.

¶125

PW26 went a step further. He deposed that he was told by PW5 that when the latter asked the accused about the theft of wires from the building, the accused responded to the effect that he would teach a lesson to Seethikoya Haji. What PW26 deposed in court as heard from PW5 was only hearsay evidence which should be eschewed from consideration. PW5 did not depose in court to any such response of the accused. The second motive alleged by the prosecution is also without any material to support.

¶126

The prosecution could prove none of the circumstances relied on by it. Having found so, we have a few more lines to write touching the last seen circumstance. Let it be a case where PWs 11

¶127

¶128

Crl.A (V)No 1686/2013 & Crl A No.1155/2015

¶129

and 12 auto rickshaw drivers saw Seethikoya Haji and behind him the accused walking on the Mukkom-Kunnamangalam road near Chathamangalam mosque at 4.45 a.m on 21.6.2009. Even so, the prosecution does not appear to be safe. Simply because the accused was seen walking behind Seethikoya Haji before the incident, it cannot be said, in the absence of a favourable circumstance for the prosecution, that the accused was the culprit, particularly when nobody saw any weapon in his hand. PW11 spoke that he had occasion in the past to see the accused passing through the same area. PW11 stated so in his examination-in-chief as well as in crossexamination. The witness in cross-examination spoke that even before the date of incident he had occasion to see the accused in the same area walking on the road early morning. It is also the evidence of PW11 that several persons have their morning walk in that area. The evidence of PW25 suggests that he had seen several times the accused walking on the road in front of the Varattiyakkal mosque where PW25 was the priest. In the absence of any incriminating material against the accused, the evidence of PWs 11 and 12 that they saw the accused at 4.45 a.m on 21.6.2009 would prove nothing more than the morning walk of the accused as stated by the learned trial judge.

¶130

We have had a reappraisal of the evidence in the case and the circumstances relied on by the prosecution. We are in complete agreement with the conclusion the learned trial judge had. The trial

¶131

¶132

Crl.A (V)No 1686/2013 & Crl A No.1155/2015

¶133

court did do no mistake in acquitting the accused. We confirm the

¶134

acquittal. The appeals are without merit and therefore deserve only a dismissal.

¶135

Both the appeals are dismissed.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

A.M.BABU

sks/12.2.2019

JUDGE

Suharabeevi v. Anoop B.C.

Case brief

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What the court decided

Suharabeevi v. Anoop B.C.

Case brief

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What the court decided

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