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Judgment
Vinod Chandran, J.
An imprudent indulgence in carnal pleasures of the bizarre kind, led to the murder of a young man; is the case of the prosecution, in short. The 23
year old, pursuing his graduate studies was found, bound, blindfolded, sodomized and hacked to death in a desolate cashew plantation. The victim had,
as per the expert opinion, presumably consented to the sexual act, little realizing that it would culminate in his life being snuffed out by his partner. The
medical evidence according to the Doctor, who conducted the Postmortem, leads to a reasonable inference that bondage and blindfolding before the
sexual act points to a sadomasochistic encounter. After the sexual act the aggressor took the life of the passive victim is the case set up by the
prosecution.
According to the prosecution, the accused and victim were childhood friends and had a long relationship, presumably extending to the homosexual.
The accused developed jealousy for reason of the transgressions of the victim by way of a love affair with PW22, a young girl and PW31, a 67 year
old, whose house he used to frequent. The accused also harbored ill-will for reason of the victim planning to go to Mumbai seeking employment. The
accused sent two letters [Exts.P3 and P3(a)] to the father of the victim [PW6] threatening to maim his son, the victim. The said letters were written
by PW 30, a friend of the accused. The accused had been appointed under the dying-in-harness scheme in Government service and at the crucial time
deputed for a training.
Motivated by jealousy and ill-will, the accused took leave of absence from training and came home on 18.04.2006. In the evening, the accused went
to the house of the victim and asked PW 5, a neighbour who was watching TV in the victim's house, to call the victim. PW 5 saw the accused talking
to the victim outside the house, when presumably, they planned an amorous meeting on the next day. The victim, on 19.04.2006, left his house to write
an exam and also informed his family that he would be late to come back for reason of the housewarming function of a friend. The victim attended the
exam at Brennen College, Thalassery and at about 12.30 P.M informed PW 4, a friend and college mate that he was going to meet another friend
near MRA Bakery; without revealing the name of that friend. The accused and victim then purchased two packets of biscuits and soda from the shop
of PW7 and proceeded to the cashew plantation in the location known as Kundoor Mala. After the sexual act and murder, the accused walked down
to the road as witnessed by PW9-Savitha, to whom he sought directions to reach the motor-able road. From the road he boarded PW10's auto-
rickshaw in which he reached the Bus Stand and returned by bus to Kozhikode, the training venue. The accused reached his room, where he was
found around 6.30 P.M on 19.04.2006 by PW33, another trainee. He also hid the blood stained dress and shoes he was wearing, near the Tourist
Home in which he was staying for the duration of the training, at Kozhikkode. This, in brief is the prosecution case.
The dead-body, in a sitting position in a pit, was first seen by PW11, who had been collecting nuts from the cashew plantation of her mother. She
called PW12, her relative, who was in the neighbouring plantation. PW11 & 12 panicked and while returning to their respective homes informed the
people standing near 'E.M.S. Library' about the corpse found in the plantation. CW27 informed the Police Station, from where PW1 the brother of the
victim was informed. PW1 along with PW3 and another friend proceeded to the spot, identified the body and later gave FIS at the Police Station. The
Investigating Officer [I.O, hereafter], PW44 reached the spot on the same day at about 7.30 P.M and prepared the Observation Mahazar (Ext.P2).
The Police sent the body for Postmortem and seized many items found at the scene of occurrence having connection with the crime, including the
ropes by which the victim was bound, the towel with which he was blindfolded, his pants [worn but drawn down to his knees], two shirts and two
empty biscuit packets.
One of the shirts found at the scene, MO8 obviously had a tailoring mark, which led the Police to PW18, who runs the tailoring shop called 'Friends',
Nettoor. The register of customers [Ext. P28] maintained in the tailoring shop was seized by Mahazar Ext.P27 and Ext.P28(a) at Serial No.345 is the
relevant entry by which two cloth pieces were entrusted to the tailor; one of which resembled the cloth of MO8. The said seizure was on 24.04.06,
based on which the accused was arrested on 25.04.2006. Upon arrest the accused made four confession statements. The first regarding the place
where the weapon and a pair of gloves were hidden [Ext.P13(a)]. Based on which, the police accompanied the accused to the scene of occurrence,
near which, in the property lying adjacent to the compound wall of an Engineering College, the accused pointed out the weapon and gloves hidden in
between boulders and rocks on 25.04.2006 itself. The weapon was marked as MO14 and the pair of gloves as MO23. The seizure was made by
Ext.P13 Mahazar, which was witnessed by Dileesh M.K. and K. Ratheesh, [PW's.13 & 14]. The second confession was with respect to the
purchase of the weapon from a blacksmith. The third confession was regarding the shop from which the accused and the victim together purchased
biscuits and soda, just before the crime. The last confessions are marked Ext. P68 and P69; respectively regarding the hiding place of MO16 shoes
and MO17 to 19, blood stained full-shirt, underwear and pants, the accused wore after the crime was committed.
The accused presumably was produced before the jurisdictional Magistrate within 24 hours of arrest and remanded to judicial custody. He was then
procured into police custody on 04.05.2006 when the accused, as per the confession statement made on 25.04.2006, is said to have taken the Police to
PW15 blacksmith who manufactured MO14 weapon. On 05.05.2006 as per the confession statement of the accused made on 25.04.2006, the shirt,
pants, underwear and shoes, the accused wore after the incident to go back to Kozhikode, was recovered from near the Tourist Home at Kozhikode
in which the accused was residing during the period of training. Another Government Employee [PW33] who was also deputed for training and the
Instructor [PW40] spoke of his absence during the training from the afternoon of 18.04.2006 to the evening of 19.04.2006.
On the basis of the investigation carried out in the aforesaid manner the prosecution commenced and continued the trial examining PW1 to PW47,
marking Exts.P1 to P76 and producing material objects MO1 to MO36. The defence marked D1 to D4 contradictions in Section 161 statements. After
Section 313 examination of the accused the trial Court found the accused guilty and convicted him under Section 302 and 377 IPC. The accused was
sentenced to undergo imprisonment for life and pay a fine of Rs.1 lakh with default sentence of one years rigorous imprisonment under Section 302
IPC and RI for 3 years and fine of Rs.10000/- with default sentence of RI for 3 months under Section 377 IPC which sentences were also directed to
run concurrently.
Sri. Sunny Mathew appeared for the appellant/accused and Sri. S.U Nazar, Public Prosecutor, for the State. Sri.Sunny Mathew at the outset
submitted that the friendship between the accused and victim, the accused's employment, training and absence from training on the crucial day stand
established. But nothing connects the accused with the crime nor is there any evidence to establish a sexual relationship between the accused and the
victim. As far as the crime, the recovery of the weapon is attempted to be proved only by the I.O and both the mahazar witnesses turned hostile.
Pertinent is also the fact that a sniffer dog was brought to the site on the same day and in all probability the weapon kept only at a distance of 15
meteres from the crime scene would have been sniffed out. MO8 shirt seized from the site is stated to be that of the accused relying solely on the
inconsistent evidence of PW18 tailor. The tailor spoke of having stitched shirts of the same cloth for others and it also came out in evidence that MO8
resembled the uniform of a Polytechnic in the area. There is nothing to show that either the weapon or the pair of gloves recovered from near the
scene of occurrence was that of the accused.
MOs 16, 17 and 18 recovered from near the training school, though proved by the I.O and mahazar witnesses, the recovery was on 05.05.2006,
based on a confession alleged to have been made by the accused on 25.04.2006. The delay is unexplained, recovery concocted and in all probability
those items would have been planted by the Police. All the shirts recovered or seized in pursuance to the investigation discloses the label 'Friends',
Nettoor. The mere fact that the accused also got his dress stitched in the said tailor shop for reason of which the tailor is familiar with the accused
cannot lead to any inference that the shirt seized from the crime scene was that of the accused. The delay, in recovery of the dress worn by the
accused on his way back to Kozhikode puts to peril the acceptability of such recovery.
There is discrepancy in the evidence of PW23 regarding the accused having shared a room with PW33. There can be no reliance placed on the
evidence of PW17 the alleged scribe of letters, Ext.P3 and P3(a), to the extent he speaks of the letters having been written at the instigation of the
accused. The statement is self serving insofar as the scribe being aware that such letters, leveling threats against the person of another, is illegal. It is
pointed out that the judgment of the trial court raises 22 circumstances all of which were found to have been proved, to find the guilt of the accused.
While admitting certain circumstances it is pointed out that no circumstance relied on to connect the accused to the actual crime has been proved by
the prosecution. It is urged that in fact there were two other circumstances projected by the prosecution ie: the evidence of PW9 and PW10, who
allegedly saw the accused leaving the crime scene. Both of them turned hostile and obviously for that reason the learned trial Judge ignored the said
circumstances.
Sri. Sunny Mathew placed before us the decision of the Hon'ble Supreme Court in A N Venkatesh v State of Karnataka (AIR 2005 SC 3809) to
contend that the confession regarding purchase of the weapon or that of biscuits cannot be accepted. It is pointed out that there can be no conviction
based on discovery alone since, that by itself is a weak piece of evidence [Vijay Thakur v State of Himachal Pradesh [2014(11) SCALE 63]. The
learned Counsel would urge this Court to set aside the judgment of the trial Court and acquit the accused for reason of total absence of evidence
linking the accused to the crime.
The learned Public Prosecutor, Sri Nazar vehemently opposed the plea for acquittal and argues for sustaining the conviction. From the impugned
judgment it is pointed out that the trial Court has spelt out the circumstances and meticulously dealt with the evidence to find the accused guilty of the
offence charged; establishing such guilt unerringly and conclusively against the accused. The death was caused by reason of a deviant relationship,
turning sour, as established by the opinion of the Medical Doctor. That the victim consented to bondage and the subsequent sexual act indicates the
trust he had on the active aggressor who not only subjected the victim to unnatural sexual intercourse, but also snuffed out his life on ground only of
jealousy.
Even if some of the circumstances are found to have been not proved, the direct evidence of PW30 regarding the threat leveled against the victim,
revealing the intention of the accused to harm the victim proves the motive. PW1 and 3 to 6 the brother, father and friends of the victim spoke of the
close relationship the victim had with the accused. PW5 a mutual friend and a resident of the locality had seen the accused conferring with the victim
on the previous day, obviously planning the trip to Kundoor Mala. MO8 shirt was seized from the crime scene which admittedly PW18 stitched for the
accused. The accused has no explanation insofar as the presence of that shirt at the crime scene. The recovery of the weapon and the gloves has
been proven by the I.O. Even in the event of the mahazar witnesses turning hostile there can be reliance placed on the I.O if his evidence is
convincing. The learned PP relies on Pulukuri Kottayya v. Emperor [AIR (34) 1947 PC 67] to bring home the significance of a discovery made under
Section 27 of the Evidence Act. Liyakat v. State of Uttaranchal [AIR 2008 SC 1537] is relied on to argue that the accused has chosen silence
regarding the various circumstances found against him, which also is a vital circumstance in the unbroken chain. Praful Sudhakar Parab v. State of
Maharashtra [AIR 2016 SC 3107] is placed on record to support the last seen together theory. It is pointed out from G.Parashwanath v. State of
Karnataka [2010(8)SCC 593] that the trial Court rightly relied on the said decision to infer certain things which normally and definitely follows from
the established circumstances providing the missing links. The Hon'ble Supreme Court in Mohd.Aslam v. State of Maharashtra [(2001) 9 SCC 362]
and Modan Singh v. State of Rajasthan [1978 (4) SCC 435] as well as this Court in Mathew v. State of Kerala [1990(2)KLT 564] accepted
recoveries effected even when mahazar witnesses turned hostile.
Babu v. State of Kerala [2015 KHC 7029] was proffered to contend that there is no requirement that the chain of circumstances should contain
very many links and if a conclusion of guilt can be arrived at even by virtue of two or three links, that would suffice. The weapon recovered at the
instance of the accused was blood stained. MO8 and the dress of the victim seized at the time of inquest had blood stains, of human origin and group
B as found on scientific analysis. Blood stains of the very same group were found in the dress recovered from near the training school, as pointed out
by the accused. The circumstances together establish the guilt of the accused who from his perversions and the brutal manner in which the crime was
conducted cannot be let loose in society. The conviction and sentence has to be upheld is the assertion of the learned Public Prosecutor.
That the death occurred in a desolate plantation from where the body was recovered is an established fact. That the murder and the antecedent
sexual act were both bizarre and gruesome also cannot be disputed. The circumstances as spelt out by the trial Court were the following: (i) sodomy
and homicidal death by chopper, (ii) close friendship and probable homosexual relationship, (iii) love affair of the accused with PW 22 Jishitha,
resultant jealousy prompting anonymous letters of threat send to the father PW6, (iv) Jishitha and victim fell apart and accused and victim continued
their relationship, (v) accused appointed on 08.12.2005, joined duty on 26.12.2005 and was deputed for survey training between 23.03.2006 and
22.04.2006, (vi) victim developed relationship with Ramakrishnan, PW31, (vii) victim trying for employment outside Kerala, (viii) accused
apprehending inability to continue his homosexual relationship, (ix) broad probabilities, of sexual jealousy (x) motive of sexual jealousy leading to the
crime, (xi) MO14 chopper made by PW15 Raju and sold to accused (xii) accused concealed his real identity from PW15 (xiii) MO14 along with
gloves (MO23) recovered by the I.O as pointed out by the accused after his arrest (xiv) accused absent from afternoon of 18.04.2006 till 6.30 PM on
19.04.2006 from the training venue and the Lodge (xv) accused met victim on the previous day and made arrangements for their meeting on
19.04.2006 (xvi) victim left Brennen College in the noon to meet a friend (xvii) the two purchased biscuits and soda from the shop near the place of
occurrence (xviii) no grappling, consented sexual intercourse involving sadomasochism (xix) recovery of blood stained shoes and clothes (xx) MO8
Shirt belonging to accused, with blood stains found at scene of occurrence (xxi) exclusion of other theories (xxii) in all probability the murder would
have been done by the accused who had sexual jealousy towards deceased.
All the 22 circumstances stated above were found to be established by the trial Court. We would pause here to recollect that the learned Counsel
for the appellant/accused had pointed out two circumstances which were omitted by the trial Court.
We entertain serious doubts about the various inferences made by the trial Court in finding that the circumstances would necessarily point an unerring
finger to the guilt of the accused. In such circumstances we would re-frame the circumstances as available in the prosecution case in the following
manner.
That the victim met with homicidal death caused by injuries inflicted by a chopper (MO14) between 1.30 p.m and 2.30 p.m on 19.06.2006 in a
cashew plantation.
That the deceased victim could have been subjected to sodomy on consent after being tied up and blindfolded by his partner-aggressor.
That the accused and victim were residents of a locality and childhood friends which could have extended to homosexual relationship.
That the victim developed an affair with PW22, Jishitha with whom he exchanged love letters and also had a relationship with PW31
Ramakrishnan, whose house he used to frequent, both of which resulted in the accused developing jealousy and resultant enmity towards the victim.
That the victim was searching for an employment outside the State and the accused was apprehensive of loosing his sexual partner.
That on the fateful day, the victim had written an examination at Brennen College Thalassery in the forenoon after which he left the College to see
a friend near MRA Bakery, Thalassery and was later found dead at the scene of crime.
That the accused, a government employee was attending training at Kozhikode, lodged in a tourist home nearby to the Training School from where
he was absent from 18.04.2006 noon till 6.30 p.m. on 19.04.2006; on which later day he was on leave.
That the accused on the evening of 18.04.2006 conferred with the victim after calling him out from his residence.
That on 19.04.2006 the accused and the victim purchased soda and biscuits from PW7's shop before proceeding to Kundoor Mala; which shop was
nearby to the scene of crime.
That the accused on his way back from Kundoor Mala, alone, approached PW9 a nearby resident who gave him directions to proceed to reach
the road.
That on reaching the road he traveled in PW10's autorikshaw to the bus stand from where he traveled back to the Training Institute at Kozhikode.
That the victim was found dead in a pit within the desolate cashew plantation by PW11 and 12; tied, blindfolded and pants drawn down to his
knees.
That there were interalia two shirts at the crime scene, one that of the victim and the other, MO8 stitched by PW18 for the accused.
That on arrest the accused had confessed to have hidden the weapon and the cricket gloves he wore, near the scene of crime which was
recovered on his showing.
That the recovery of MO14 chopper and MO23 gloves from near the crime scene was witnessed by PW13 and PW14 cleaner and driver of a
lorry.
That MO14 chopper was made by PW15 blacksmith who identified the weapon by the seal on it and also the accused as the person who
purchased it, before the Police. PW15 also produced the bill book which contained the carbon copy of the bill issued with respect to the weapon which
showed the name of the accused.
That the cricket gloves were traced to the shop of PW21 who identified the accused and the gloves purchased from his shop.
That the accused led the police party as per his confession statement, to the property, near the tourist home belonging to PW23, from where
MO16 shoes MO17 full shirt, MO18 underwear and MO 19 pants, which he wore on his way back to the training venue after the commission of the
crime, were recovered.
That PW35 Doctor who prepared P39 postmortem report specifically spoke of a homosexual encounter involving sadomasochism after which the
passive-victim was killed by his aggressor-partner. The expert opinion was also that the injuries seen on the body of the victim resulted in his death
and those injuries could very well be inflicted by MO14 chopper.
That the FSL report showed blood stains in MO8 shirt recovered from the scene of crime, MOs16, 17 and 18 recovered from near the tourist
home at Kozhikode and MO14 weapon all of which were of human origin and group B which was the group identified to be that of the victim, as
available on the dress seized from the corpse.
That the enmity of the accused to the victim is clear from Ext.P3 and P3(a) letters sent to the father of the victim which was written by PW30 at
the instigation and command of the accused.
That the accused and victim were last seen together by PW7 and later PW9 and 10 saw him leaving the crime scene. The recoveries made and
the evidence of the witnesses lead to the unerring conclusion of the accused having committed the subject murder without leaving any room for doubt
as to existence of any other theory pointing to the innocence of the accused.
That the victim died of injuries inflicted, in all probability by any heavy sharp edged weapon is spoken of by the Doctor. MO14 weapon is stated to
be capable of inflicting the injuries described in the Postmortem report and it contained blood stains as is established by the evidence of PW35 the
Doctor who conducted Postmortem. The victim suffered 16 ante mortem injuries and died of the injury to the neck (Injury NO.7); a gaping incised
wound starting from the left front base of the neck, severing the carotid artery and jugular vein, passing just below the adams apple and cutting the
spinal cord in two at the level of C6 vertebra as also the bleeding from the other cut injuries.
A conjoint reading of Ext.P71, Property List, Ext.P72, Forwarding Note and Ext.P73, FSL Report would offer the scientific evidence regarding the
crime. Item No.1 to 12, 15, to 17, 23 and 25 were found to contain blood stains of human origin and belonging to group B. Item No.'s 1 to 12 are those
objects recovered from the scene of occurrence including MO1 & 8 shirts and the dress, band, threads etc. worn by the deceased, recovered from the
corpse. Item No.17 is the weapon, which too contained similar blood stains. However the blood sample taken from the body of the victim, on
examination did not disclose the specific group as the results were inconclusive [Ext.P51 Report of Analysis]. The Doctor has opined that injury No.15
caused to the genitals of the victim is usually seen in cases where sexual jealousy is involved. The anal swabs did not disclose any semen. From the
nature of the injuries to the anus it was opined that those must have been caused, on the victim being subjected to sodomy. The Doctor also opined
that the nature of the injuries on the anus indicated consent of the victim. This coupled with the fact that the victim was bound and blindfolded;
indicates a sadomasochistic encounter, in the course of which the aggressive-partner caused the death of the passive-victim. Injuries resulting in death
were caused by hacking fatally on the body of the victim and even on the genitals; clearly indicating sexual jealousy. The cause of death is fairly well
established. The inference with respect to a sadomasochistic encounter as opined by the Doctor, is an informed inference deductible from the bondage
and blindfolding coupled with the injuries to the anus.
The accused and victim were childhood friends which friendship continued after they attained majority as spoken of by the brother (PW1), father
(PW6) and friends (PWs.3,4&5). However, we are unable to accept the conclusion of the trial Court that they had a homosexual relationship by
reason merely of their friendship for long years. There was no inkling of evidence on that aspect by the friends, brother and father of the victim and
not even a doubt was expressed on that count. The trial Court placed reliance on the deposition of PW6 the father and relied on G. Parswanath to
infer the homosexual relationship. G. Parswanath was a case in which the wife and child of the accused were found burnt to death in the house when
the accused claimed he was not present. The evidence of the mother of the deceased indicated that immediately before the occurrence the accused
was present in the house and the fireman who broke open the house stated that it was bolted from outside. The defences projected of suicide, death
due to inhalation of carbon monoxide and accidental burns, were found to be false. Coupled with these circumstances the constant harassment of the
wife by the accused as established from letters, the evidence of the immediate family and independent witness could only lead to one inference was
the finding in the cited case.
The trial Court has relied on the cited decision to find that the only inference possible from the proved circumstance of the friendship between the
two, the evidence regarding the victim being subjected to sodomy and the statement made by the father (PW6) regarding the homosexual relationship
between the two could only lead to the guilt of the accused. The father categorically said that he had not noticed any bodily relationship between the
accused and the victim. Only to a question put by the Prosecutor as to whether he can deny a homosexual relationship, he admitted he cannot. This
does not establish the homosexual relationship, since there is no other evidence suggesting such a relationship. The sodomy and the consent indicated
by the medical evidence could only reveal the sexual inclination of the victim and not that of the accused who is only found to be a friend from
childhood days.
The jealousy and resultant enmity, projected as motive, is by reason of the relationship developed with PW22 and PW31. PW22 deposed that she
had an affair with the victim, but categorically stated that it was discontinued an year before his death. PW31 is a 67 year old man, living with his wife,
son and daughter-in-law, in a residential property which also contained a badminton court. The victim and PW31 came into contact when the victim
was employed by PW2 a relative and electrician, to carry out electrical work in the residential house of PW31. The relationship was more by reason
of the victim having often stayed back after work to play badminton. There is nothing suggestive of any relationship between the 23 year old and the
67 year old; which could evoke jealousy in a homosexual partner; other than a casual friendship.
Moreover there is no indication of any rupture in the friendship of the victim and accused, suggested either by his friends, father or brother, which
would have been a natural consequence of the jealousy nurtured by the accused. There is also nothing to indicate that the accused was privy to the
relationships so projected by the prosecution or that he had at any time objected to it. The evidence of PW32 insofar as an employment prospect in
Mumbai for the victim is of no consequence in the context of the prosecution having not established either the homosexual relationship between the
accused and the victim or the jealousy nurtured by the accused.
The motive is also projected on the basis of Exts.P3 and P3(a) letters said to have been written by PW30 on the instigation of the accused.
Exts.P3 and P3(a) indicate that someone had threatened PW6 with bodily harm to his son. PW30 has admitted to the handwriting of the contents of
the letters though he denied the writing of the address, in both the letters and the interpolation of the name of the victim, in the recitals in Ext.P3.
Ext.P53 Report of the Forensic Science Laboratory indicates that the handwriting in the contents of both letters are that of PW30; having found
identity with the sample writing. However, the handwriting with respect to the interpolation, ie: the name of the victim, was not identifiable as that of
the accused or PW30. The handwriting of the address was also reported to be inconclusive when compared with the sample writings of accused and
PW30. Normally when PW30 admitted to the handwriting of the contents of the letter there would not have been any significance for the expert
evidence. But, in the circumstance of this case, we find the expert evidence to be relevant. Even for the Police it would have been difficult to trace
out the scribe of letters sent by post, one year and two years back. Ext. P3 bears the postal seal of October 2004 and Ext.P3(a) of 12.1.2005. This
supplies veracity to the admission of PW30, which persuades us also to accept the statement that PW30 wrote at the instigation of the accused. An ill-
will is hence established, with the threat levelled of dismembering the victim. This does not lead to any conclusion of a motive as alleged by the
prosecution.
In this context, it has to be noticed that though Ext.P3 and P3(a) letters indicate an enmity between the accused and victim there is a cause
pointed out by PW6 father. PW6 specifically narrates an incident where the victim teased the accused of his new born nephew resembling the
accused. It is also stated by PW6 father that there was a skirmish, about 4 to 5 months before the murder, which he came to know was instigated by
the accused, near the temple, where the accused attempted to beat up the victim. Though the threat leveled by the accused is found to be proved the
motive alleged by the prosecution of a homosexual relationship and jealousy still remains shrouded in a cloud. The accused and the victim were close
friends who also quarreled at times and made up later, as spoken of by PW6; normal in any human relationship. The motive or its absence is not an
essential factor in arriving at the conclusion of guilt or innocence. But,it could be a relevant circumstance, as one of the crucial links in the chain of
circumstances especially when the case is built on circumstantial evidence alone. It is always one of the corroborative circumstances that could
persuade the Court to find the accused guilty.
The accused was a Government employee as is established by the evidence of PWs 34,40,41 & 42. PW34, was working as U.D. Clerk in the
office in which the accused joined as per Ext.P37 as L.D.Clerk/Village Assistant under the compassionate employment Scheme. He joined duty as
per Ext.P38 on 26.12.2005. Ext.P40 proceedings evidences 33 persons having attended the chain survey training between 23.03.2006 and 22.04.2006,
one of which trainees as seen from Serial No.18 is the accused. By Ext.P39 the accused rejoined his office after training on 24.04.2006. PW40 is the
Instructor who conducted the training at the Government Survey Training School, Puthiyara, Kozhikode. The said witness marked and proved Ext.P56
Attendance Register, in which the portion marked as P56(a) at page No.12 and 13 shows the accused to be on leave on 17.04.2006 and 19.04.2006.
On 18.04.2006 the accused is said to have attended a model exam conducted in the Training School. PW40 stated that the accused was found
disturbed and on repeated questioning he submitted that he was not well. The accused left the Training School about 1½ hours after the exam
commenced in the morning. The attendance of 18.04.2006 was marked in the morning itself when he appeared for the examination. It has also come
out in evidence that there was another model exam on 19.04.2006, which the accused absented from.
The accused also was residing at the Tourist Home, of which PW23 was the Proprietor. He marked Ext.P32 Register, wherein one Praveen T.
[PW33] was allotted Room No.25. P32(a) is the entry in the Register. P33 is the Bill Book of which P33(a) is the carbon copy of the bill issued to the
said Praveen, which is dated 22.04.2006. The Bill Book shows the number of persons who resided in Room 25 to be three persons, for a duration of
one month. PW33 is another trainee, as evidenced from Ext.P40 proceedings, which shows him at Serial No.14. PW33 categorically stated that he
had been staying in the room with the accused, Shaji and Vinod, the latter of whom are respectively Serial Nos.19 & 29 in Ext.P40. PW33 also
marked the original of the rent receipt as Ext.P46, the carbon copy of which is Ext.P33(a). A specific question regarding the receipt revealing only 3
persons has been categorically answered. Shaji, clarified PW33, joined them only after two days. PW33 further deposed that the accused had
attended the model exam in the forenoon of 18.04.2006 and was absent after that, even at the Tourist Home. According to him the accused was then
seen at 6.30pm, on 19.04.2006 in the room commonly shared. From the evidence of the witnesses it is clearly established that the accused was a
Government employee who was attending training between 23.03.2006 and 22.04.2006 and on the crucial day, ie.19.04.2006, he had taken leave of
absence from the Training School. On the evening of 18.04.2006, it is also seen from the evidence of PW5, a friend of the victim that the accused and
the victim conferred together. But the inference drawn of the two having arranged an amorous rendezvous on the next day is a mere conjecture.
On the fateful day, the victim left his house in the morning and attended an examination at Brennen College, from where he left around 12.30 P.M.
PW4 saw him off from the College premises and deposed to the fact that the victim spoke of wanting to meet a friend in front of MRA Bakery
Thalassery. Then, according to the prosecution, the accused and victim were seen by PW7, a shop owner, from whose shop they purchased Soda and
Biscuits. PW7 turned hostile and failed to identify the accused standing in the dock. The case of the prosecution that the accused and victim were
seen last together by PW7, hence falls to the ground. It is also the prosecution case that the accused on his way back from Kundoor Mala, after
allegedly committing the crime, sought directions from PW9 and after reaching the road took PW10's autorickshaw to travel to the bus stand. Both
PW9 & 10 turned hostile and failed to identify the accused.
For connecting the accused to the crime, the prosecution has further relied on MO8 shirt found at the crime scene, the recovery of MO14 weapon
and a pair of gloves from near the scene of crime, the purchase of the weapon and the gloves by the accused and recovery of the dress worn by the
accused on the way back to Kozhikode, after the alleged commission of crime. This along with the other proved circumstances unerringly pin the guilt
on the accused, is the submission of the prosecution. We have to consider the said links in the chain of circumstances projected by the prosecution,
one by one. We remind ourselves the guidance provided by numerous decisions of the Hon'ble Supreme Court of which we specifically refer to
Sharad Birdhichand Sarda v State of Maharashtra [(1984) 4 SCC 116] which followed Hanumant v. State of M.P [1952 SCR 1091]:
A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be
fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that
the circumstances concerned “must or should†and not “may be†established. There is not only a grammatical but a legal distinction between
“may be proved†and “must be or should be proved†as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra19 where
the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]
“Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance
between ‘may be’ and ‘must be’ is long and divides vague conjectures from sure conclusions.â€
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on
any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and tendency,
(4) they should exclude every possible hypothesis except the one to be proved, and
(5) 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 the act must have been done by the accused.
These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
MO8 shirt is said to have been stitched in PW18's tailoring shop called 'Friends' Nettur; which label is found on its inside collar. As per the
evidence of the I.O [PW44] the label led the Police to the said shop, on 24.04.2006 from where Ext.P28 Tailoring Register was recovered. On PW18,
Sajith's statement that the aforesaid shirt was stitched at his shop for the accused, the latter was arrested on 25.04.2006. Ext.P28(a) is the relevant
entry at item No.345 of Ext.P28 Register recovered from the shop. We have verified the said Register and the entry; to compare the cloth piece
stapled at Serial No.345 with MO8 shirt. Two cloth pieces, one of which is similar to that of MO8 shirt is seen stapled at the relevant entry in the
register.
In cross-examination PW18 specifically stated that MO8 was identified by him as a shirt stitched for the accused, on the basis of the cloth piece
marked as MO8(a), seen in Ext.P28(a) entry and the tailoring mark/label found on the collar of the shirt. He also stated that there are other shirts
stitched from his shop of identical cloth. To a specific question as to whether there was any distinguishing mark to find MO8 to be that stitched for the
accused; he stated: “but for the label and the tailor's register, there is no other special markâ€. We cannot but observe that the measurement of the
shirt was available in P28(a) entry and it was for the prosecution to prove that the measurements of MO8 shirt tallied with that seen at that entry and
matched the accused; which they failed to do. The evidence of PW18 is not conclusive and it cannot be said that MO8 shirt belongs to the accused.
We can only find that there was a shirt similar to the cloth of MO8 stitched for the accused at 'Friends', Nettoor. In that circumstance, we cannot find
the prosecution to have established without any doubt, the ownership of MO8 shirt.
Then comes the recovery of MO14 chopper and MO23 pair of gloves from near the crime scene. The recovery was effected by the I.O allegedly
on the confession statement of the accused marked as P13(a) in Ext.P13 Seizure Mahazar. Both the witnesses to the seizure, PW's 14 & 15 turned
hostile. The said witnesses admitted their signature, but deposed that they did not see the recovery nor the seizure. According to them, they signed on
the paper on the road side as directed by the Police. They also denied seeing the accused with the police party. The learned Public Prosecutor has
placed a number of decisions to impress upon us that merely because the Mahazar witnesses have turned hostile, the recovery under Section 27 of the
Indian Evidence Act cannot be brushed aside.
We would first look at the decisions so placed before us. Mathew [supra] was a case in which the conviction and sentence awarded by the
Sessions Court under Section 302 IPC was upheld. Out of the five occurrence witnesses, four, fully supported the prosecution case and their evidence
tallied with the medical evidence. The murder occurred pursuant to a wordy duel outside a toddy shop, when the accused caught hold of the deceased
from the back and stabbed him with a dagger, which weapon was discovered, on confession made. One of the grounds raised by the accused was
that the recovery was unacceptable since the mahazar witnesses turned hostile. It was held that if the I.O's evidence, regarding the confession
statement and recovery, is blemish free, it can certainly be accepted. Similar was the finding of the Hon'ble Supreme Court in Mohammed Aslam
wherein on the strength of the information supplied by A1, a semi-automatic US carbine magazine along with 113 cartridges were recovered from his
house. The two panch witnesses who signed the recovery mahazar turned hostile on the basis of which the accused challenged the acceptability of
recovery. Therein relying on the evidence of the I.O, it was found that while recovery was effected from the house of the accused, none residing in
the house were examined by the accused, for the purpose of denying the recovery. Modan Singh was again a similar case in which it was found that if
the evidence of the I.O, who made the recovery, is convincing, the evidence as to recovery cannot be rejected merely on the ground that the seizure
witnesses turned hostile. But despite the recovery being accepted the accused was acquitted as the last seen together theory was not established.
Hence there could be no conviction based on the solitary evidence of recovery and it could only form a link in the chain of circumstances.
Mani v. State of TamilNadu [(2009) 17 SCC 273] was a case in which the weapon and the bloodstained clothes were discovered on the
confession statement made by the accused. The witnesses to the seizure turned hostile. The discovery admittedly was made from 300 feet away from
where the dead body was found. The Hon'ble Supreme Court disbelieved the recovery, finding that it was impossible to believe that the Police had not
searched the nearby spots and that the discovered objects remained in the open for more than 10 days. It was held so in paragraph 26:
The discovery is a weak kind of evidence and cannot be wholly relied upon and conviction in such a serious matter cannot be based upon the
discovery. Once the discovery fails, there would be literally nothing which would support the prosecution case. We have already held that the
prosecution has failed to prove that the house where alleged bloodstains were found belonged exclusively or was possessed exclusively by the
appellant, we have further pointed out that the discovery was absolutely farcical. There is one other very relevant factor ignored by both the courts
that the prosecution never made any attempts to prove that the clothes belonged to the appellants. There is literally no evidence to suggest anything to
that effect. Therefore, even if we accept the discovery, it does not take us anywhere near the crime. Both the courts below have ignored this very
important aspect. Once these two important circumstances are disbelieved, there is nothing which would remain to support the prosecution theory.
From a reading of the aforesaid decisions we find that the recovery made could be accepted only if there were other compelling circumstances
connecting the accused to the crime. Even if, for the moment, we accept the I.O's evidence with respect to the recovery having been effected on the
basis of the confession made by the accused; there can be no conviction on the basis of such recovery alone.
The accused is said to have further confessed to having purchased the weapon from PW15 blacksmith as per the confession statement marked as
Ext.P19(a) in P19 seizure mahazar. Likewise, the I.O. speaks of the accused also having confessed to have purchased biscuits and soda from the
shop of PW7. To bring the above confessions under Section 27 of the Evidence Act, a sample metal seal as found in the blade of MO14 weapon was
seized as MO13 from PW15. Similarly, by Ext.P5 seizure mahazar sample biscuit packets, as found at the scene of occurrence, was seized by P5
seizure mahazar, again in an attempt to bring it under Section 27. The metal seal recovered from PW15 and the sample biscuit packet recovered from
PW7's shop were not objects concealed by the accused. The presence of the said objects in the place from which they were seized was not within the
exclusive knowledge of the accused, which knowledge alone comes under Section 27 as a confession acceptable in evidence.
Pulukuri Kottaya considered the construction of Section 27 and held that it does not nullify the ban imposed by Section 26. It was held: “... it is
fallacious to treat the “fact discovered†within the section as equivalent to the object produced; the fact discovered embraces the place from
which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to
past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered.(sic para 10)â€. The murder,
tried in that case, arose from factional fights and the statements admitted in evidence under Section 27 though related to the weapons used also
contained confessions regarding overt acts, all of which; except the information which led to the discovery of the object, were held to be inadmissible.
The matter was remanded to the trial Court to consider whether, after discarding the evidence improperly admitted, there was sufficient evidence to
justify the conviction. It was held: “Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence
charged, it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the
chain of proof, and the other links must be forged in manner allowed by lawâ€.
Pulukuri Kottaya was referred to in Himachal Pradesh Administration v. Shri.Om Prakash [(1972) 1 SCC 249]. It was a similar circumstance of
the recovery of dagger used, based on a confession and a further confession made by the accused leading the Police to PW11 from whom the dagger
was purchased. The further confession as to the purchase made was found to be admissible only under Section 8 of the Evidence Act. Paragraph 14
is extracted here under:
In the Full Bench Judgment of Seven Judges in Sukhan v. Crown8 which was approved by the Privy Council in Pulukuri Kotayya case, Shadi Lal,
C.J., as he then was speaking for the majority pointed out that the expression “fact†as defined by Section 3 of the Evidence Act includes not only
the physical fact which can be perceived by the senses but also the psychological fact or mental condition of which any person is conscious and that it
is in the former sense that the word used by the Legislature refers to a material and not to a mental fact. It is clear therefore that what should be
discovered is the material fact and the information that is admissible is that which has caused that discovery so as to connect the information and the
fact with each other as the “cause and effectâ€. That information which does not distinctly connect with the fact discovered or that portion of the
information which merely explains the material thing discovered is not admissible under Section 27 and cannot be proved. As explained by this Court
as well as by the Privy Council, normally Section 27 is brought into operation where a person in police custody produces from some place of
concealment some object said to be connected with the crime of which the informant is the accused. The concealment of the fact which is not known
to the police is what is discovered by the information and lends assurance that the information was true. No witness with whom some material fact,
such as the weapon of murder, stolen property or other incriminating article is not hidden, sold or kept and which is unknown to the Police can be said
to be discovered as a consequence of the information furnished by the accused. These examples however are only by way of illustration and are not
exhaustive. What makes the information leading to the discovery of the witness admissible is the discovery from him of the thing sold to him or hidden
or kept with him which the police did not know until the information was furnished to them by the accused. A witness cannot be said to be discovered
if nothing is to be found or recovered from him as a consequence of the information furnished by the accused and the information which disclosed the
identity of the witness will not be admissible. But even apart from the admissibility of the information under Section 27, the evidence of the
Investigating Officer and the panchas that the accused had taken them to PW 11 and pointed him out and as corroborated by PW 11 himself would be
admissible under Section 8 of the Evidence Act as conduct of the accused.
The recoveries made on the basis of the confessions hence has absolutely no relevance. The purchase of the weapon as also the biscuits and
soda, if proved could constitute very strong links connecting the accused to the crime itself. It could reveal his prior conduct in preparation of the crime
and as evidence of the two being last seen together, respectively. The blacksmith [PW15] identified the weapon as one manufactured by him
immediately prior to the incident. The seal affixed on the blade of the weapon was similar to MO13 metal seal affixed by the blacksmith in all objects
manufactured by him. Ext.P20 Bill Book and Ext.P20(a) carbon copy of the bill issued by PW15 with respect to MO14 weapon was proved. In Court
PW15 said that he had manufactured the weapon for one Shinoj, however in Ext.P21, Section 164 statement the name spoken of was of Vijesh; both
brought out in cross-examination which he admitted to be a mistake. We verified the carbon copy of the bill [P28(a)], which does not clearly reveal
the name of the purchaser. But, PW15 spoke of the purchaser having approached him thrice. He vividly remembers the purchaser having brought a
'leaf' [the reference obviously is to the 'leaf spring' of a vehicle] of a bus which could not have been used for making the weapon. It is PW15's
evidence that the 'leaf' brought by the purchaser was retained in the shop and the weapon was made from the 'leaf' of a jeep. The blacksmith, despite
his vivid memory, did not identify the accused as the person who purchased the weapon from him. PW7 also failed to identify the accused and denied
the prosecution version of the accused along with the victim, having purchased biscuits and soda from his shop. This demolishes the circumstance
regarding the prior conduct of preparation for the crime by purchase of a weapon and the two having been last seen together. The witnesses, in the
context of they having turned hostile, cannot form the basis of the prosecution case of prior conduct of the accused or the last seen together theory
under Section 8 of the Evidence Act.
Now we come to the recovery of blood-stained MO16 to MO19, the shoes and dress, the accused is alleged to have worn after the commission of
the crime. Even according to the I.O., the accused was arrested on 24.04.2006, when he is said to have made the confession. One regarding the
weapon and gloves, allegedly used for commission of the crime, hidden near the crime scene. Then, as to the dress and shoes he wore back to
Kozhikode, which were hid at Kozhikkode. Before we look at the later recovery we notice that Ext.P21 owner of the shop, from which the accused is
said to have purchased a pair of gloves, recovered along with the weapon, failed to identify the accused as the one who purchased the gloves from his
shop. Even the I.O does not have a case of the accused having pointed out the shop from where the gloves were purchased. However PW21, the
Manager of the shop, deposed that some days after the murder a police party came to the shop accompanied by a person, whom he could not identify.
The purchase of the gloves hence has not been proved.
The recovery of the shoes and dress has been proved by the I.O and stands corroborated by the Mahazar witnesses. It is also seen from the FSL
report that the blood stains found in the shoes and shirt were identified to be of human origin and group-B. The FSL report at Ext.P73 also specifically
spoke of the blood available in all the materials including the dress of the victim as also MO8 shirt recovered from the crime scene to be of group-B
and of human origin. However, the fact remains that the said recovery was made after 10 days. As we noticed, the I.O arrested the accused on
25.04.2006, on which date he made the confessions (Exts.P68 and 69) above referred. The weapon and pair of gloves were recovered on the same
day. Presumably the accused was produced before the Magistrate and remanded to judicial custody. The I.O also stated that the accused was taken
into Police custody then on 04.05.2006 and the recovery as per the confession statement was carried out on 05.05.2006. Ext.P68 & 69 confessions
leading to the recovery of the dress from near Calicut Tourist Home, are recorded on 25.04.2006. It specifically speaks of the dress having been
concealed at Kozhikode. By that time the police definitely would have come to know of the deputation of the accused, who was a Government
employee. The delay in making the recovery makes it unreliable.
We again refer to Shri Om Prakash, wherein the delay of 24 hours in making the recovery was found to be fatal; making the recovery
unacceptable. We extract paragraph 15 of the said decision:
We then come to the recovery of the Second February of pant, the account books and the vouchers. These, however, cannot in our view be relied
upon because PW 28 had information relating to them which had been furnished by the accused more than 24 hours before and the description given
by him was such that they could have been discovered. At any rate the long delay does not lend assurance to the discovery. It appears from the
application made on February 2, to the Magistrate that the accused was arrested on February 1, 1967, and at his instance and from his possession one
sweater, one coat and one blanket blood stained, have been recovered and in addition one blood stained warm pant, one duster, one bag containing 5
registers are still to be recovered on the pointing out of the accused but the remand of the accused is due to expire at 1 p.m. and accordingly it was
requested that a further remand for 7 days be given and the accused made over to the police and orders be passed. The accused is alleged to have
given the information that he had hid them under the stone slab near Krishna Nagar Ganda Nala which he had thrown away in the sewage and which
he said will point out and get them recovered. The recovery itself is under Ext. P-7, to which PW 2, PW 13 and Manohar Lal, PW 14 who was picked
up on the “rasta†when he was summoned by the constables are witnesses. According to PW 14 the Thanedar was going ahead and went down
to the Nala, when the constable summoned him and he went there. He further says that the Thanedar sent a constable down. The accused had a talk
with Thanedar. The constable took out from below a stone slab five registers in a bag, the accused was standing on a stone. At this stage the
prosecutor sought permission to cross-examine the witness and it was given. In the cross-examination he denied having signed the Memo at the spot
and said that he had signed it at the Thana. He also said it was incorrect to suggest that the Memo was read over to him and he signed it. Whether the
articles recovered were planted at the place from where they were alleged to be recovered or not as suggested by the learned Advocate for the
accused, the evidence referred to certainly goes against the prosecution version that the account books, vouchers and the pant were recovered at the
instance of the accused. The police appears to have known the place from where these articles were alleged to have been recovered and therefore it
cannot be said that they were discovered as a consequence of the information furnished by the accused.
The learned Counsel for the accused specifically argued that the delay puts to peril the acceptability of the recovery under Section 27, since the
Police had sufficient time and opportunity to plant the evidence, which we find to be a reasonable argument. The prosecution did not choose to explain
the delay nor was the I.O questioned on the delay, in cross-examination. There is no mandate that unless the delay is questioned in cross-examination,
it cannot be raised at the time of argument or in appeal. The prosecution having not explained the delay, the accused need not put a suggestion and
enable a clarification by the I.O. We have examined the full shirt, which also bears the tailoring mark 'Friends', Nettoor. There is no attempt to identify
the shirt through PW18 tailor or to establish that they in fact belong to the accused or that at least they fit the accused.
From the discussion above we have to see whether the evidence regarding the circumstances proved conclusively, find the prosecution having
established the guilt of the accused, without even a modicum of doubt as to his innocence as declared in Sharad Birdhichand Sarda . With the above
caution in our mind we examine the circumstances to find whether the chain of circumstances is so complete as to find the guilt of the accused
conclusively, without any reasonable ground for any conclusion consistent with the innocence of the accused. As we already noticed the victim met
with homicidal death caused by injuries, most probably inflicted by a weapon similar to MO14 chopper. There is also a strong probability of the victim
having been subjected to sodomy before he was killed; which sexual act was also on consent. The said fact is an inference possible from the informed
opinion of the expert, the Doctor, based on the nature of the injuries caused in the anus. The friendship between the accused and the victim is fairly
well established but not the homosexual relationship. The love affair of the victim with PW22 and his relationship with PW31 are not relevant at all to
the crime, since there is nothing to show that there was any enmity arising in the mind of the accused for reason of the jealousy due to the above
affairs; especially when the homosexual relationship has not been proved. That the victim was searching for an employment outside the State again is
of no consequence.
The victim wrote the examination in the forenoon of 19.04.2006 and left the college by 12.30 p.m and was last seen by PW4. The accused a
Government employee was deputed for training at Kozhikode during the said period and was staying at a Tourist Home in Kozhikode. The accused
was absent from the venue of training as also the Tourist Home from the noon of 18.04.2006 to the evening of 19.04.2006. The accused also talked
with the victim on the evening of 18.04.2006. However, there is nothing to indicate that they planned a meeting on the next day. The victim was then
found dead in a desolate cashew plantation. These are the circumstances that are proved from the evidence led by the prosecution which does not
connect the accused to the actual murder.
The version of the prosecution that the accused and the victim were last seen together by PW7 from whose shop they purchased biscuits and soda
is not proved. Praful Sudhakar Parab is not applicable, since that was a case in which the deceased and accused were seen last together and
thereafter the former went missing and later his body was recovered.
Similarly PWs 9 and 10 who were said to have seen the accused going back from the scene of occurrence denied the said fact. MO8 shirt recovered
from the scene of occurrence, though stitched by PW18 is not unequivocally established to be that of the accused. The cloth piece found in Ext.P28(a)
entry in Ext.P28 register is only a cloth similar to that of MO8. Liyakat was a case in which a toddler left in the custody of neighbours went missing
and later his body was recovered, buried from inside the house of one of the neighbours. The Hon'ble Supreme Court in such circumstances found the
silence of the accused regarding the presence of the body of the toddler, who was in their custody, inside their house which was in their exclusive user
to be a very vital circumstance adding to the chain of circumstances. There is no circumstance in this case which makes the silence of the accused, so
telling.
The recovery of the weapon was attempted to be proved by the I.O but denied by the mahazar witnesses. The weapon was also seized from near
the crime scene. As the learned Counsel for the petitioner argued, on detection of the dead body on the very same day, Dog No.163 belonging to the
Police Dog Squad was brought to the crime scene as spoken of by PW25 Police Constable, who is a Dog Handler. The weapon and gloves were
recovered as per Ext.P13 mahazar from the alleged hiding place, which according to the seizure mahazar (Ext.P13), is only 15 meters to the west of
the crime scene. It has been noticed that in Mani the weapon was found 300 feet away while the weapon and the gloves in the present case was
found far near within 15 meters i.e, less than 50 feet from the scene of occurrence. The purchase of MO14 chopper and MO23 pair of gloves could
not be pinned on the accused. The recovery, of MOs 16 to 18 dress allegedly worn by the accused, was made on 05.05.2006 as per confession
statement of 25.04.2006, which makes the said recovery unacceptable as found in Shri Om Prakash.
The only circumstance proved is the threat leveled by the accused to dismember the victim in letters addressed to the father PW6, more than an
year back, after which the two continued as friends. Even if the I.O's proof as to recovery of the weapon is believed, that together with the absence
of the accused from the training venue on the crucial day and other benign circumstances proved cannot bring home the guilt of the accused
conclusively. They do not together form a chain of circumstances conclusively leading to the guilt of the accused; leaving no room for any other
hypothesis ie: a possibility of the accused being innocent. In the above circumstances we have to definitely give the benefit of doubt to the accused
and acquit him, the prosecution having failed to establish beyond reasonable doubt that the accused had perpetrated the crime.
The appeal is allowed giving the accused, the benefit of doubt, and the conviction and sentence passed in Sessions Case No. 444/2009 of the 4th
Additional Sessions Judge, Thalasseri is hereby set aside and the accused/appellant herein shall be released forthwith if he is not required in any other
crime.