Al-Mamun @ Mamun vs State Of Kerala

Raja Vijayaraghavan, J.

The appellant was tried by the Court of Sessions, Kottayam, for having committed an offence punishable under Section 302 of the IPC and under Section 14A(b) of the Foreigners Act, 1946. The learned Sessions Judge, by judgment dated 27.01.2024, found the appellant guilty of the offence under Section 302 of the IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.50,000/-, with a default clause. Insofar as the offence under the Foreigners Act is concerned, he was acquitted of the charge.

The crux of the prosecution case is that the appellant was a Bangladeshi national, who managed to enter India illegally. He was working in the shop of one Nazeer(PW1), who was running a scrap shop at Erattupetta. He, along with the deceased Kesab Das, was staying in the north-eastern room on the 4th floor of the lodge by name Mannar in ward No.III of the Erattupetta municipality. The prosecution alleges that on 25.10.2017 at about 09.00 p.m., there arose an altercation between the appellant and the deceased. When the deceased refused to play cards, it is alleged that Kesab Das slapped the accused on his face. According to the prosecution, on 26.10.2017, the accused did not go for his employment. Later, at about 06:50 p.m., the prosecution alleges the appellant inflicted stab injuries on Kesab Das with MO1 knife inside the bathroom of the room in which they were staying and thereby committed the murder. According to the prosecution, immediately after committing the murder, the appellant absconded.

The appellant as well as the deceased, Kesab Das, had been missing from Erattupetta since 26.10.2017. On 30.10.2017, a foul smell was noticed emanating from the lodge room in which they had been staying together. The nearby residents brought the matter to the notice of the owner of the building, who, in turn, informed the police. Thereafter, the room was opened, and the body of Kesab Das was found lying in the bathroom with multiple stab injuries.

On the basis of the information furnished by PW1, Nazeer, PW22, the Sub-Inspector of Police, Erattupetta, registered Crime No.2057 of 2017 of Erattupetta Police Station for the offence punishable under Section 302 of the Indian Penal Code. The investigation was thereafter taken over by PW23, the Inspector of Police, Erattupetta.

At about 3.30 p.m. on 30.10.2017, PW23 prepared Ext.P3 scene mahazar. At about 4.30 p.m. on the same day, the padlock of the lodge room was seized under Ext.P10 mahazar. At about 6.00 p.m., it came to light during the course of the investigation that the appellant had sold his mobile phone at a nearby shop. The said mobile phone (MO4) was accordingly seized under Ext.P14 mahazar, and the sale bill relating thereto was seized under Ext.P15 seizure mahazar.

On the same day, the inquest over the body of the deceased was conducted, and thereafter the body was forwarded for post mortem examination. On 31.10.2017, PW12, the Forensic Surgeon, conducted the autopsy and issued Ext.P12 post mortem certificate.

Subsequently, on 07.11.2017, Ext.P30 address report detailing the name and address of the deceased was submitted before the jurisdictional court. On 08.11.2017, a production warrant was issued, pursuant to which the appellant was arrested on 10.11.2017 from Balurghat Jail, West Bengal. The arrest memo has been marked as Ext.P31. While the appellant was in police custody, he is alleged to have made a disclosure statement, pursuant to which Exts.P4, P9, and P11 mahazars were prepared on 16.11.2017 from 12.15 p.m. onwards. Based on the information allegedly furnished by the appellant, the investigating agency recovered MO3 knife, MO5 dhoti, and MO7 key in the presence of witnesses.

The Investigating Officer thereafter forwarded the articles seized during the course of investigation, including the knife and the dhoti, for scientific examination. He also secured the services of a videographer to record the condition of the body and the relevant proceedings. Upon completion of the investigation, the final report was laid before the jurisdictional Magistrate, who committed the case to the Court of Session.

When the accused appeared before the Sessions Court, the learned Sessions Judge, after hearing both the prosecution and the accused, framed the charge against him. The accused pleaded not guilty and claimed that he be tried in accordance with the law.

On the side of the prosecution, as many as 23 witnesses were examined as PWs 1 to 23, and through them Exts.P1 to P44 were exhibited and marked. Material objects were produced and identified as MOs 1 to 10.

After the closure of the prosecution evidence, the incriminating materials arising from the evidence were put to the accused under Section 313(1)(b) of the CrPC. He denied the incriminating circumstances. According to him, on 25.10.2017, he had informed his employer, PW1, that the deceased, Kesab Das, had assaulted him. Since no action was taken against the deceased, he left Erattupetta on 26.10.2017 between 7.00 a.m. and 7.30 a.m., carrying his belongings. He first reached Nagampadam and approached his former employer seeking employment. As no employment was offered, he proceeded to Kottayam Railway Station, from where he travelled by train to Chennai, and thereafter returned to his native place. He further stated that the police had taken into custody his purse and two railway tickets. According to the accused, the murder might have been committed with the knowledge of Midhun Das, the brother of the deceased.

As there was no scope for an acquittal under Section 232 of CrPC, the accused was asked to enter on his defence. No defence evidence was adduced.

The learned Sessions Judge, on an appreciation of the evidence of PW12 and Ext.P12 post mortem certificate, came to the conclusion that the death of Kesab Das was homicidal and was caused by the injuries sustained to his abdomen. The learned Judge further held that the prosecution had successfully established that the body recovered from the north eastern room on the fourth floor of Mannar Lodge was that of Kesab Das. The trial court also accepted the prosecution case regarding the recovery of the material objects allegedly effected at the instance of the appellant. Placing reliance on the doctrine of "last seen together," the court concluded that the appellant was the person last seen with the accused. The learned Sessions Judge further relied upon the evidence of PW1, PW2, and PW4, to hold that the presence of the appellant in the locality on 26.10.2017 stood established. On an overall appreciation of the circumstantial evidence, the trial court concluded that the prosecution had succeeded in proving beyond reasonable doubt that it was the appellant who inflicted the fatal injuries on Kesab Das. Consequently, the appellant was found guilty of the offence charged and was convicted accordingly.

Smt. Sai Pooja, learned counsel appearing for the appellant, submitted that the circumstances relied upon by the learned Sessions Judge were neither conclusive nor sufficiently reliable to point unerringly towards the guilt of the appellant. According to the learned counsel, the prosecution failed to establish, by convincing and legally admissible evidence, that the body recovered from Room No.1 on the fourth floor of Mannar Lodge was, in fact, that of Keshab Das. Although tissue samples were admittedly collected for DNA analysis, the prosecution failed to produce the DNA report before the trial court to conclusively establish the identity of the deceased. According to the learned counsel, the identity of the deceased has not been proven by the prosecution.

The learned counsel further submitted that the prosecution had failed to adduce any evidence whatsoever to establish that the appellant had any motive to commit the murder of the deceased. According to the learned counsel, except for the interested testimony of a migrant labourer, who was allegedly threatened and coerced by the police into deposing in accordance with their version of events, there was absolutely no material on record to conclude that the appellant and the deceased were residing together in the same room. It was further pointed out that even Ext.P8, the lodge register containing the names of the occupants, does not contain either the name of the appellant or that of Keshab Das.

The learned counsel contended that the learned Sessions Judge had placed considerable reliance on the 'last seen together' theory to conclude that the appellant was last seen in the company of the deceased on the date of the alleged occurrence. In this regard, reliance was placed on the testimony of PW1 Nazeer, who deposed that on 26.10.2017, after 5.00 p.m., the appellant and the deceased had come to his scrap shop and thereafter returned together towards their respective rooms. Referring to the evidence on record, it was submitted that this assertion constituted a material omission in the previous statement of PW1 and was duly brought out during his cross-examination. It was further argued that the physical location of the lodge and the scrap shop of PW1 is such that under no circumstances, could PW1 have witnessed the appellant and the deceased entering their room.

It was further submitted that the consistent case of the appellant was that, on 26.10.2017, at about 7.00 to 7.30 a.m., he had vacated the lodge, taking all his belongings with him, and thereafter travelled to Nagapattinam. According to the learned counsel, this version stands corroborated by the testimony of PW7, who was also an inmate of the lodge.

The learned counsel further contended that the trial court erred in placing reliance upon the alleged recovery effected at the instance of the appellant, as the recovery had not been proved in accordance with law. The same could not have been relied upon as an incriminating circumstance.

The learned counsel would then submit that the entire prosecution case rests solely on circumstantial evidence and that the chain of circumstances relied upon by the prosecution is incomplete. According to her, the circumstances proved do not form a complete chain leading only to the hypothesis of the guilt of the appellant. It was contended that the prosecution had failed to establish beyond reasonable doubt that it was the appellant, and no one else, who had committed the alleged offence.

The learned Public Prosecutor opposed the submissions advanced on behalf of the appellant. Placing reliance on the decision of the Apex Court in C. Chenga Reddy v. State of A.P.^{11.(1996) 10 SCC 193],}, it was contended that the prosecution had successfully established all the circumstances from which the conclusion of guilt is to be drawn and that each of those circumstances is conclusive in nature. It was submitted that the evidence of the employer, the neighbouring residents, and the shopkeepers unequivocally establishes that the appellant and the deceased were residing together in the same room and that they had quarrelled on the previous day. It was further contended that the recovery of the knife, the key, and the dhoti at the instance of the appellant, pursuant to his disclosure statement, is an incriminating circumstance which directly links the appellant with the commission of the murder. It is further submitted that the identity of the deceased was also established by the depositions of witnesses who had clearly identified the deceased.

We have carefully considered the submissions advanced by the learned Public Prosecutor as well as the learned counsel appearing for the appellant and have perused the records.

The first question that arises for consideration is whether the death of Keshab Das was homicidal. The learned counsel for the appellant had contended that the body recovered from the room was not that of Keshab Das. However, no argument was advanced, disputing that the death was the result of a homicidal act or suggesting that the multiple injuries found on the body were caused otherwise than by homicide.

With regard to the identity of the deceased, the employer who was examined as PW1, the neighbouring occupants of the lodge who were examined as PW7, and the lodge owner who was examined as PW8 have all deposed that the body found inside Room No.1 on the fourth floor was that of Keshab Das. It is true that the body had started decomposing and the skin had begun to peel. Nevertheless, the witnesses identified the deceased based on the clothes he was wearing as well as his physical resemblance to Keshab Das.

Ideally, the prosecution ought to have produced the DNA analysis report of the tissue samples collected during the investigation, which would have conclusively established the identity of the deceased beyond any manner of doubt. The omission to produce the DNA report is certainly a lapse on the part of the prosecution. However, the oral evidence adduced on the question of identity has remained consistent and has not been effectively discredited.

The evidence of PW12 further shows that, on 31.10.2017, he conducted the post-mortem examination on the body of the deceased in connection with Crime No.2057 of 2017. During the examination, he noted as many as eleven incised wounds and one incised gaping wound on the body. PW12 opined that the deceased died as a result of the injuries sustained to the abdomen.

Having considered the evidence in its entirety, we are satisfied that the prosecution has established that the body recovered from Room No.1 on the fourth floor of Mannar Lodge was that of Keshab Das. The medical evidence leaves no room for doubt that the death was the result of multiple stab injuries and was clearly homicidal in nature.

We shall now deal with the oral evidence adduced by the prosecution to establish the guilt.

PW1, Nazeer, was the employer of both the deceased, Keshab Das, and the appellant. According to him, both had been employed in his scrap shop for about one year prior to the incident and were residing together in Room No.1 on the fourth floor of Mannar Lodge. PW1 deposed that on 27.10.2017 and 28.10.2017, the appellant and the deceased did not report for work. They remained absent on 29.10.2017 as well. When he attempted to contact them over the phone, he found that both their mobile phones were switched off. It was then that he proceeded to the lodge to enquire about them. He found the room locked from the outside. He enquired with the occupants of the neighbouring rooms and he was informed by them that the appellant and the deceased were not to be seen for the past few days. According to PW1, on 30.10.2017, the occupants of the adjacent rooms informed him that a foul smell was emanating from the room in which the appellant and the deceased had been residing. He immediately informed Hashim, the owner of the lodge, who in turn alerted the police. The police arrived at about 10.30 a.m. and they managed to open the room and found the decaying body of Keshab Das lying inside the bathroom. PW1 stated that he had no personal knowledge as to how Keshab Das had died. PW1 further deposed that at about 9.00 p.m. on 25.10.2017, the appellant came to him and informed him that there were disputes between him and the deceased. PW1 thereupon went to the room occupied by them and pacified both of them. He was informed on the following day that Keshab Das had not stayed with the appellant in the room that night. According to PW1, on the next day, the deceased attended work and not the appellant. He added that at about 5.00 p.m. on 26.10.2017, the appellant came near his shop, and thereafter both the appellant and the deceased proceeded towards their room together. PW1 also stated that when he saw the body of Keshab Das after it was recovered, the deceased was wearing the same clothes that he had seen him wearing earlier. He identified MO1 bermuda and MO2 banyan as the clothes worn by Keshab Das. According to PW1, the appellant and the deceased were living together amicably, though they occasionally consumed alcohol. He also deposed that both Mamoon and Keshab possessed mobile phones and that it was he who had purchased the SIM card and handed it over to Mamoon. He further stated that Midhun, the brother of Keshab Das, had worked in his scrap shop about a year earlier. PW1 identified his signature in Ext.P1 First Information Statement. In his cross-examination, PW1 stated that the distance between his scrap shop and Mannar Lodge was about 20 to 30 feet. He also admitted that there were several scrap shops in the locality employing migrant labourers and that nearly 100 migrant labourers were residing in Mannar Lodge. He further admitted that migrant labourers were occupying the rooms adjacent to the room in question. PW1 stated that he was not aware of the room number, where the body of Keshab Das was found. It was also brought out in cross-examination that, in the FI Statement, he had not stated that the appellant had come to his shop room on 26.10.2017 and that he had seen the appellant and the deceased walking towards their lodge.

PW2, Sekharan, deposed that he was acquainted with both the appellant and the deceased from the time they were employed in the scrap shop of PW1. According to him, on 30.10.2017, at about 11.00 a.m., the police arrived at Mannar Lodge. He accompanied the police to the fourth floor of the lodge, when news spread that a foul smell was emanating from one of the rooms. He also entered and found a dead body lying inside the bathroom. When the body was turned over, he identified it as that of Keshab Das. He stated that the deceased was wearing a red banyan and bermuda shorts. PW2 was the attestor to Ext.P3 inquest report. He deposed that on 26.10.2017, he had seen the appellant walking in front of the car stand towards Kaduvamoozhi and that he had a frightened look on his face. PW2 stated that later, when the accused was brought to the spot and recovery was effected, he signed on the mahazar as an attesting witness. During his cross-examination, PW2 was questioned in detail regarding the place from where the weapon was allegedly recovered, including the board behind which it was concealed, as well as other circumstances surrounding the recovery.

PW3 is one Sivadasan. He stated that he was running a lottery shop at Muttam Kavala. He stated that he is having acquaintance with the accused. But he is not aware of his name. He stated that he is also not aware of the name of the deceased. However, he stated that both the accused and the deceased used to come to his shop. Later, he came to know from the newspapers that the deceased was no more. He denied that he had given a statement to the police. Since he did not support the prosecution, request was made by the learned Public Prosecutor to put questions to him in cross-examination. Nothing worthwhile was stated by him while he was examined.

PW4, Thanseer, deposed that he was running a mobile phone shop by the name Alif Mobiles near Muttam Junction during the relevant time. He stated that he was acquainted with the appellant and the deceased as they used to visit his shop to recharge their mobile phones. He was also aware that both of them were employed in the scrap shop of PW1. According to PW4, the appellant was using two SIM cards. He further stated that, on the evening of 26.10.2017, the appellant came to his shop and informed him that he wished to sell a mobile phone. After verifying the handset and the purchase bill, PW4 agreed to purchase the phone. Though the appellant initially demanded a sum of ₹3,000, PW4 ultimately paid ₹2,500 and purchased the mobile phone. The handset so purchased was identified and marked as MO4, and the purchase bill was marked as Ext.P7. PW4 further deposed that he subsequently handed over both the mobile phone and the purchase bill to the police. In his cross examination, PW4 admitted that Alif Mobiles was not a registered establishment. He also stated that he had not produced any documentary evidence to establish that he was running the said mobile phone shop at the relevant time.

PW5, Ansar, deposed that he was running a scrap shop at Muttam Junction, Erattupetta. He stated that he was acquainted with both the appellant and the deceased, Keshab Das. According to him, Midhun Das, the brother of the deceased, had previously worked in his scrap shop. PW5 further stated that both the appellant and the deceased were residing in Mannar Lodge, owned by Hashim. PW5 stated he had accompanied the police to the lodge and saw the dead body of Keshab Das lying inside the bathroom.

PW6, Benny, deposed that he was conducting a business dealing in hill produce at Muttam Junction, Erattupetta. He stated that he was acquainted with both the appellant and the deceased. According to him, the scrap shop of PW1 was situated opposite his establishment, and it was there that both the appellant and Keshab Das were employed. Nothing of significance was elicited from the evidence of PW6 by the prosecution or the defence.

PW7, Manwar Houssain @ Raju, deposed that he was residing in the room adjacent to the one occupied by the appellant and the deceased at Mannar Lodge. According to him, the appellant and the deceased used to consume alcohol and frequently quarrel with each other. He stated that, at about 9.00 p.m. on 25.10.2017, he heard the sound of an altercation from their room. He found that Mamoon had asked Keshab Das to play cards with him. When Keshab Das refused, both of them exchanged abuses, and Keshab Das caught hold of Mamoon by his neck. According to PW7, the quarrel ended thereafter. PW7 further deposed that, on the following day, at about 7.15 a.m., while leaving for work, he saw both the appellant and Keshab Das in their room. Later that evening, at about 7.45 p.m., when he returned to the lodge, he found the room locked. Thereafter, he did not see either the appellant or the deceased again. According to PW7, after about two days, a foul smell started emanating from the room. On 30.10.2017, after returning from work and having his lunch, he came back to the lodge along with the police. The police showed him a photograph of Keshab Das and informed him that he had died. PW7 reiterated that the appellant and Keshab Das had been residing together in the room adjacent to his own.

PW8, Muhammed Hashim, deposed that he is the owner of Mannar Lodge. According to him, the lodge was mainly occupied by migrant workers. He identified the appellant before the Court and also stated that he knew the deceased, Keshab Das. PW8 stated that both the appellant and Keshab Das were residing in Room No.1 on the fourth floor of the lodge. They were employees of PW1 Nazeer, and it was at the request of PW1 that he had allotted the room for their accommodation. According to PW8, on 30.10.2017, he received information that neither the appellant nor Keshab Das had been reporting for work and that a foul smell was emanating from their room. He informed the police. The room was opened by breaking the door with the assistance of a migrant worker residing nearby. On entering the room, the police found the body of Keshab Das lying inside the bathroom in a decomposed condition. PW8 stated that the police informed those present that the death had occurred about three to four days earlier. PW8 stated that he is an attestor to Ext.P3 inquest report. He also produced Exhibit P8 lodge register. Referring to page 3 of the register, he stated that Room No.1 had been allotted to PW1 Nazeer for accommodating his employees. In his cross examination, PW8 denied the suggestion that Ext.P8 had been fabricated by him at the instance of the police.

PW9, Midhun Das, is the brother of the deceased, Keshab Das. He deposed that he had come to Kerala about 17 to 18 years prior to the incident and had been working at Erattupetta in the shop of one Muhammed Faizal. According to him, Keshab Das had got married and, after about six to seven months, returned to Kerala, where he had been working ever since. PW9 further stated that, on receiving information about the death of his brother, he came to the Government Medical College, Kottayam. However, as the body had already started decomposing, he decided not to transport it to his native place. Consequently, the body of Keshab Das was cremated within the limits of the Kottayam Municipality.

PW10, Ismail, deposed that he used to supply goods to the scrap shop of PW1 Nazeer and was, therefore, acquainted with both the appellant and the deceased, whom he had seen working in the shop on several occasions. He stated that he stood as an attestor to Exts.P4 and P9 seizure mahazars as per which MO3 knife and MO5 dhoti (mundu) were allegedly recovered.

PW11, Maheen, deposed that he was engaged in the business of buying and selling vehicles. He stated that he was acquainted with both the appellant and the deceased and had seen them working in the scrap shop of PW1 Nazeer. According to PW11, on coming to know about the death of a person at Mannar Lodge, he rushed to the place of occurrence. However, owing to the foul smell emanating from the room, he did not enter the scene of occurrence. He stated that he stood as an attestor to Ext.P10 seizure mahazar, as per which MO6 lock was seized, and Ext.P11 seizure mahazar, which was prepared when MO7 key was seized.

PW13 is the Village Officer who prepared Ext.P13 scene plan.

PW14 was a partner of Alif Mobile, a mobile phone shop situated at Muttam Junction, Erattupetta. He deposed that, on 30.10.2017, the police came to the shop, collected the mobile phone allegedly sold by the appellant along with its purchase bill, and obtained his signature on the relevant seizure mahazars. He is an attesting witness to Ext.P14 seizure mahazar, under which MO4 mobile phone was seized, and Ext.P15 seizure mahazar, under which Ext.P7 purchase bill was seized. PW14 also stated that the appellant had sold the mobile phone at the shop on 26.10.2017. However, during his cross-examination, he admitted that he was not present in the shop on 26.10.2017 when the alleged sale took place and that he was present only when the police arrived on 30.10.2017 to seize the mobile phone and the bill.

PW15 was working in the shop of PW8. He is an attestor to Ext.P16 mahasar which was prepared while seizing the register from Mannar Lodge.

PW16 served as the Secretary to Erattupetta Municipality . From his evidence it would be revealed that the Building No. 633 in Ward 3 at the Erattupetta Municipality is under the ownership of Sri. P.M. Muhammed Hashim.

PW17 was the owner of a scrap shop situated near Nagambadam Stadium, Kottayam. He deposed that the appellant had worked in his establishment from the year 2013 to 2016 and that, after leaving his employment, the appellant joined the scrap shop of PW1 Nazeer. He further stated that he had assisted the appellant in opening a bank account with Kottayam Urban Bank. PW17 deposed that, about two weeks prior to the present incident, the appellant had telephoned him and informed him that he had left his employment in the shop of PW1 Nazeer. During his cross-examination, PW17 stated that the SIM card bearing mobile number 9349509348, which was being used by the appellant, had been obtained when the appellant was working under him by using PW17's Aadhaar card and photograph. He also reiterated that he had, in good faith, assisted the appellant in opening an account with Kottayam Urban Bank.

PW18 deposed that he was the proprietor of a mobile phone shop by the name Mobile Spot at Central Junction, Erattupetta. According to him, the appellant was a regular customer and was well known to him. PW18 stated that, in the year 2016, the appellant had purchased an Airtel SIM card from his shop. Since the appellant did not possess a valid identity proof, he had produced the identity card of one of his friends for obtaining the SIM card. PW18 recalled that the mobile number began with the digits "9633" and ended with "99". During his cross examination, PW18 stated that the identity proof collected at the time of issuing a SIM card would ordinarily be forwarded to the service provider. He further admitted that he was unaware of the name of the person in whose favour the SIM card had actually been issued and also did not know who was using the said SIM card at the relevant point of time.

PW19 is the videographer who recorded the inquest proceedings in a CD which was marked as MO8.

PW20 and PW21 are the Nodal Officers of mobile service providers. They were examined to prove the call details. Nothing turns on their evidence.

Now, the defence advanced by the accused is that he was beaten up by the deceased on 25.10.2017 and that on the same day itself he complained to PW1, and since no action was taken, he left the place at 7.30 am in the morning. He called his previous employer and requested for a job, and as the same was not provided, he took a train and left for Chennai. PW17 is the previous employer of the appellant. In his evidence, he also stated that the accused had requested for employment in his concern. It has also come out from the evidence of PW1 that the appellant had informed him that he wanted to move about two weeks back.

Having taken note of the evidence adduced by the prosecution and the findings of the learned Sessions Judge, we find that the case rested on circumstantial evidence. It is settled that conviction can be based solely on circumstantial evidence. However, while deciding the case involving circumstantial evidence, the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability that the act must have been done by the accused. (See: Sharad Birdhichand Sarda v. State of Maharashtra^{22.(1984) 4 SCC 116}, Krishnan v. State ^{33.(2008) 15 SCC 430} and Wakkar v. State of U.P^{44.(2011) 3 SCC 306)}.)

The following are the circumstances which the learned Sessions Judge has relied upon to convict the appellant.

We shall now deal with each of the above circumstances.

We find that when PW7 was examined, he had stated that he had seen the appellant and the deceased inside the lodge at 7.00 - 7.30 am. PW1 on the other hand stated that on 26th, the deceased alone came for work. However, when he was examined before court he added that the appellant came to his shop at about 5.00 pm and they left the place together and went to their room. The learned Sessions Judge took this as a strong piece of evidence and came to the conclusion that there was nothing to disbelieve PW1. We have carefully gone through the evidence of PW1. We find that the said witness had no case when he furnished the FI statement that the accused had come to his shop on 26.10.2017. This was brought out as an omission by the learned counsel appearing for the appellant. Of course there is also the evidence of PW2, who stated that he had witnessed the appellant walking towards the taxi stand with an unusual look on his face. We are not inclined to give much value to the evidence tended by PW2 as he claims to be a social worker and was with the police on 30.10.2017 and was an attestor to Ext.P3 inquest and Ext.P4 mahazar as per which the knife was recovered. A reading of his evidence would reveal that he is a stock witness and was merely parroting what the investigating officer wanted him to state before court.

The most important piece of evidence against the appellant as held by the learned Sessions Judge, is the recovery of MO3 knife, MO7 key and MO5 Dhothi. The learned Sessions Court held that the recovery has been proven through the evidence of PW11 and PW10 and also from the evidence of PW23, the investigating officer. The question is whether the said finding can be sustained under law.

It is the case of the prosecution that the appellant is a citizen of Bangladesh and was residing in India without valid authorisation. It was under these circumstances that he was also charged with having committed an offence punishable under the provisions of the Foreigners Act, 1946. The records further reveal that the appellant was formally arrested while he was lodged in the Balurghat Jail in the State of West Bengal. It is also not disputed that the appellant had pleaded guilty to the charge under the Foreigners Act and was accordingly convicted by the concerned Court in the State of West Bengal.

We have carefully gone through the charge sheet and found that the prosecution had cited one Shaji C.D. as CW28, who was engaged as an interpreter and translator during the course of investigation. His services were utilised while interrogating the appellant and also while recording the statements of Manwar Hussain (CW8), Midhun Das (CW10) and Mukaleshwar Rahman (CW18). However, we find that the interpreter/translator was not examined before the trial court.

The proceedings before the learned Sessions Court also reveal certain disturbing aspects. The records show that on 10.02.2020, the appellant was produced before the learned Sessions Judge and was provided with the services of a legal aid counsel. On 12.10.2021, when the charge under Section 302 of the Indian Penal Code was sought to be framed, the appellant informed the learned Sessions Judge that he did not understand Malayalam. Realising the difficulty faced by the appellant, the learned Sessions Judge adjourned the matter for the appointment of a translator. Thereafter, on 04.04.2022, the services of Adv. Vineetha, a person conversant with the language understood by the appellant, was secured. The charge was translated and explained to the appellant, who denied the accusation.

However, on 14.02.2023, the learned legal aid counsel submitted before the learned Sessions Judge that the appellant knew and could speak Malayalam. On the basis of the said submission, the learned Sessions Judge proceeded with the trial without personally satisfying himself that the appellant, admittedly a native of Bangladesh, was capable of understanding the evidence recorded before the Court and effectively participating in the proceedings.

Section 273 of the Code of Criminal Procedure mandates that, except where otherwise expressly provided, all evidence recorded during the course of a trial or other proceeding shall be taken in the presence of the accused or, where his personal attendance has been dispensed with, in the presence of his pleader. The requirement embodied in the provision is not merely one of physical presence but is intended to ensure that the accused is able to effectively follow and understand the proceedings against him.

Section 279 of the Code of Criminal Procedure is also relevant in this context. The provision caters to situations where evidence is recorded in a language not understood by the accused. The provision casts a mandatory obligation upon the Court to interpret such evidence in open Court into a language understood by the accused. Where the accused is represented by an advocate and the evidence is given in a language not understood by the advocate, the same is required to be interpreted to the advocate as well. The provision also confers discretion upon the Court to interpret such portions of documents tendered for formal proof as may be necessary in the interests of justice.

Section 281 of the Code deals with the recording of the examination of an accused under Section 313. Subsection (4) specifically mandates that where the accused does not understand the language in which the record is written, the same shall be interpreted to him in a language which he understands, and he shall be afforded an opportunity to explain or supplement his answers. Section 318 of the Code provides the procedure to be followed where an accused, though not of unsound mind, cannot be made to understand the proceedings. In such circumstances, while the Court may proceed with the trial, any conviction recorded by a Court other than the High Court must be forwarded to the High Court with a report of the circumstances, and the High Court is required to pass appropriate orders. These provisions emphasise the importance of ensuring that an accused fully understands the proceedings conducted against him.

It does not appear to us that the learned Sessions Judge appreciated the significance of these statutory safeguards. The provisions contained in Sections 273, 279, 281 and 318 of the Code are not empty formalities. They are intended to ensure that an accused who is unable to understand the language in which the proceedings are conducted is afforded a fair opportunity to defend himself. In the present case, despite the appellant having initially asserted that he did not understand Malayalam and despite the Court having considered it necessary to appoint a translator for explaining the charge, the trial was subsequently conducted without any such assistance merely because the learned legal aid counsel represented that the appellant knew Malayalam. The learned Sessions Judge did not personally verify whether the appellant was in fact capable of understanding the evidence recorded before the Court or effectively participating in the trial.

The lapses on the part of the prosecuting agency are even more serious. As noticed earlier, the prosecution itself relied upon CW28 as the interpreter and translator through whom the statements of the appellant and certain witnesses were recorded during the investigation. Despite this, CW28 was not examined before the Court. The prosecution has therefore failed to establish the manner in which the statements attributed to the appellant were translated and recorded.

We have carefully examined Ext.P4 mahazar, which contains Ext.P4(a), the alleged disclosure statement said to have led to the recovery of MO3 knife from behind the name board of Thadathil Lodge affixed to the wall on the left side of the staircase on the second floor. We have also examined Ext.P11(a), the alleged disclosure statement leading to the recovery of MO7 key, as well as Ext.P9(a), which is stated to have led to the recovery of MO5 dhoti. We note that all these disclosure statements are recorded in flawless Malayalam. Having regard to the admitted case of the prosecution that the appellant is a native of Bangladesh who required the assistance of an interpreter during investigation as well as at the stage of framing of charge, it is difficult to accept that these statements represent the actual words spoken by the appellant. They can only be the words of the translator. This is the extract of the evidence:

The same is in flawless Malayalam.

So also, Ext.P11(a) confessional statement alleged to have been given by the appellant leading to the recovery of the key, reads as under:

More or less the same wordings are used in Ext.P9 mahazar prepared at the time of effecting recovery of MO5 Dhoti as per Ext.P9(a) confessional statement.

The legal principles governing the admissibility of recoveries under Section 27 of the Indian Evidence Act are too well settled, and an elaborate discussion is not warranted for the same. In Boby v. State of Kerala^{55.[2023 INSC 23]}, after referring to the celebrated decision in Pulukuri Kotayya v. King Emperor^{66.(AIR 1947 PC 67)}, the Hon’ble Supreme Court reiterated that what is rendered admissible under Section 27 is only that portion of the information supplied by the accused which distinctly relates to the fact thereby discovered. In Chandran v. State of Tamil Nadu^{77.[(1978) 4 SCC 90]}, the Hon’ble Court held that where the disclosure statement itself is not proved, the recovery allegedly effected pursuant thereto cannot be treated as one made at the instance of the accused. In State of Karnataka v. David Rozario^{88.[(2002) 7 SCC 728]}, the Apex Court held that the exact information supplied by the accused which led to the recovery must be proved, since it is the information and not the opinion of the investigating officer that becomes admissible under Section 27. It was observed as under:

The doctrine underlying Section 27 rests upon confirmation by subsequent events, and therefore the precise words spoken by the accused assume considerable importance. These principles were further elaborated by the Apex Court in Ramanand @ Nandlal Bharti v. State of Uttar Pradesh^{99.2022 SCC OnLine SC 1396}, wherein the Court explained the manner in which a mahazar is expected to be drawn and reiterated that the exact statement made by the accused should be faithfully recorded. In the said case the Hon’ble Court refused to accept the evidence of recovery by observing as under

Applying the aforesaid principles to the facts of the present case, we find that the prosecution has failed to establish that the recoveries allegedly effected at the instance of the appellant satisfy the requirements of Section 27 of the Indian Evidence Act, 1872. The prosecution itself proceeds on the basis that the appellant is a citizen of Bangladesh who was not conversant with Malayalam. This is evident not only from the charge sheet, wherein the services of an interpreter were utilised during interrogation, but also from the proceedings before the Sessions Court, where a translator had to be appointed for explaining the charge.

In Sanjay Oraon v. State Of Kerala^{1010.2021 (5) KLT 30}, it was observed by this Court as under:

The same infirmity is evident in the present case. The disclosure statements contained in Exts.P4(a), P9(a) and P11(a) are plainly not the words of the appellant but those of the translator. The investigating officer failed to record the actual words uttered by the Appellant and also failed to append a translated version as required in law. The translator himself has not been examined. While in the box the investigating officer failed to state the exact words used by the appellant and has not even made an attempt to prove the contents of the mahazar. In that view of the matter we hold that the disclosure statements do not satisfy the requirements of Section 27 of the Evidence Act. The recoveries allegedly effected pursuant thereto lose their evidentiary value and cannot be relied upon as incriminating circumstances connecting the appellant with the commission of the offence.

The next circumstance relied upon by the prosecution is the alleged motive. According to the prosecution, the appellant was beaten by the deceased, and it was in retaliation for that incident that he inflicted the fatal stab injuries on the deceased. Upon a careful evaluation of the evidence on record, we are of the considered view that this circumstance is weak and unconvincing. The evidence discloses that nearly 100 migrant workers were residing in the same lodge. It has come out in evidence that the appellant was beaten in the presence of PW7. It has also come out that, instead of retaliating immediately after the incident, the appellant approached PW1 and complained. PW1 came to the lodge to pacify his employees. The evidence further shows that on 25th, the appellant and the deceased stayed in separate rooms. In the above factual background, we are unable to accept the contention that the alleged motive has been established. We do not think that the deceased declining the appellant's request to play cards, coupled with the deceased giving the appellant a knock on the head with his bare hands, can, by itself, be regarded as a sufficient or convincing motive for the appellant to commit the murder of the deceased.

The next circumstance relied on by the learned Sessions Judge is the alleged abscondance by the accused. As we had stated earlier, the specific case of the appellant was that he had left his employment in the morning of 26.10.2017 as the deceased had beaten him up on the previous day. PW17 deposed before the court that 2 weeks prior to the incident, the appellant called him and asked for a job in his shop stating that he is leaving his current job with Nazeer. PW17 stated that the appellant had told him a few weeks back that he wanted to leave PW1’s employment. In that view of the matter, there is nothing unusual in the appellant leaving the place in the morning on 26.10.2017. It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such a circumstance alone may not be enough to draw an adverse inference against him, as it would go against the doctrine of innocence. It is quite possible that he may be running away merely on being suspected or out of fear of police arrest and harassment. (See: Matru Alias Girish Chandra v. State of U.P^{1111.(1971) 2 SCC 75}, Paramjeet Singh v. State of Uttarakhand^{1212.(2010) 10 SCC 439}, and Rabindra Kumar Pal Alias Dara Singh v. Republic of India^{1313.(2011) 2 SCC 490)}). The mere abscondence of the appellant cannot be taken as a circumstance which gives rise to draw an adverse inference against him.

It is settled that suspicion, however grave it may be, cannot take the place of proof. There is a large difference between something that “may be” proved, and something that “will be proved”. The large distance between “may be” true and “must be” true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict. In such cases, while keeping in mind the distance between “may be” true and “must be” true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (See: Hanumant v. State of M.P^{1414.AIR 1952 SC 343}, State v. Mahender Singh Dahiya^{1515.(2011) 3 SCC 109}, and Ramesh Harijan v. State of U.P^{1616.(2012) 5 SCC 777)}.)

In Kali Ram v. State of H.P^{1717.(1973) 2 SCC 808}, the Apex Court has observed as under:

In Sharad Birdhichand Sarda (supra), the Apex Court has held as under:

In M.G Agarwal v. State of Maharashtra^{1818.AIR 1963 SC 200}, the Apex Court has held that if the circumstances proved in a case are consistent either with the innocence of the accused, or with his guilt, then the accused is entitled to the benefit of doubt. When it is held that a certain fact has been proved, then the question that arises is whether such a fact leads to the inference of guilt on the part of the accused person or not, and in dealing with this aspect of the problem, benefit of doubt must be given to the accused, and a final inference of guilt against him must be drawn only if the proved fact is wholly inconsistent with the innocence of the accused, and is entirely consistent with his guilt.

In view of the discussion above, we hold that the prosecution has failed to prove any of the circumstances from which the conclusion of guilt is to be drawn. We are convinced that the circumstances presented by the prosecution are not of a conclusive nature so as to exclude every hypothesis, but the guilt of the accused. The chain of evidence does not show that within all human probability the act must have been done by the accused and the accused alone. There is paucity of legal evidence to reach the exclusive conclusion regarding the guilt of the appellant.

In the result, this appeal is allowed. The conviction and sentence of the appellant in S.C.No.360 of 2018 passed by the Court of Sessions, Kottayam, is set aside. We acquit the appellant of all charges.

We find that the appellant is a citizen of Bangladesh and he has been found guilty by the jurisdictional Court in West Bengal under the provisions of the Foreigners Act, 1946. In view of the directions issued by the Apex Court in Frank Vitus v NCB¹⁹, we issue the following directions:

The Superintendent of the Central Prison & Correctional Home, Viyyur, wherein the appellant is undergoing his sentence, shall forthwith communicate the judgment of acquittal passed by this Court to the Foreigners Regional Registration Officer (FRRO), who is the civil authority under the Immigration and Foreigners Act, 2025. The FRRO shall take appropriate steps in accordance with law. The entire exercise shall be

[(2024) 8 SCC 415] concluded within three weeks from the date of receipt of a copy of this judgment. Upon completion of the aforesaid exercise, the Superintendent of the Central Prison & Correctional Home, Viyyur, shall release the appellant in terms of the orders issued by the FRRO.