Full Judgment Text
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CASE NO.:
Appeal (crl.) 5-76 2000
PETITIONER:
K.V. CHACKO @ KUNJU
Vs.
RESPONDENT:
STATE OF KERALA
DATE OF JUDGMENT: 07/12/2000
BENCH:
S.N.Hegde, M.B.Shah
JUDGMENT:
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J U D G M E N T
SANTOSH HEGDE, J.
The appellant has preferred these appeals against the
judgment of the High Court of Kerala at Ernakulam dated 28th
March, 2000 delivered in Criminal Appeal Nos.105/98 and
642/98. Criminal Appeal No.105/98 was filed by the
appellant against the conviction and sentence imposed on him
by the learned Sessions Judge, Kottayam Division, Kerala in
Sessions Case No.60 of 1993 dated 29.12.1997 wherein he was
found guilty of offences punishable under Sections 449, 302,
397 and 201 IPC and was sentenced to undergo imprisonment
for various terms including imprisonment for life under
Section 302 IPC. Criminal Appeal No.642/98 was preferred by
the State of Kerala against the said judgment of the
Sessions Court for not awarding capital punishment to the
accused in the said case. The High Court heard both the
appeals together and as per its impugned judgment dismissed
the appeal of the appellant and allowed the State appeal by
coming to the conclusion that the offence committed by the
appellant deserved nothing short of capital punishment to
meet the ends of justice. Accordingly, it enhanced the
sentence from life imprisonment to death sentence. The
appellant has preferred the abovesaid appeals against the
said judgment from jail. Mr. Kh. Nobin Singh, learned
Advocate, has appeared as an amicus curiae while the State
is represented by Mr. A.S. Nambiar, learned senior counsel
and Mr. Gracious Kuriakose, learned advocate. The
prosecution case as presented before the trial court is that
on 6.8.1988 at about 3.20 a.m. the appellant entered the
house of Johnny, a resident of Thadiyampadu in Idukki
District by making an opening near the kitchen door of the
house where deceased Johnny was sleeping with his family
members, namely, his wife Mariakutty, daughter Rani aged 15
years, daughter Honey aged 9 years, and son Sony aged 7
years. It is stated that the appellant immobilised the said
victims by hitting them on their heads by using an axe
(MO-12) and removed the jewellery worn by the female
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victims, so also a revolver (MO- 13) and cartridges (MO-14)
belonging to Johnny along with currency notes worth Rs.60/-
which were inside the drawer of a table in the house and
thereafter with a view to destroy the evidence of the crime,
poured diesel oil which was kept by Johnny in a can in his
house, set fire to the house and decamped with the booty so
collected. It is the further case of the prosecution that
Beeran (PW-17), who happened to pass by the house of Johnny
at about that time, came to notice the flames of fire
emanating from the said house, hence, ran to a nearby night
shop situated at Thadiyampadu junction and informed Ismail
(PW-1) and some other head-load workers who were with PW- 1
and brought them to the house of Johnny. It is further
stated that on breaking open the front door by these people,
they noticed a young girl who was later identified as Rani,
lying and moaning but before any help could be rendered to
her, the roof of the house fell on her and their efforts to
save her failed. It is further stated that when PW-7
Muralidharan S.I. of police arrived at the spot, the house
was completely burnt and he with the help of the people
present including the fire force personnel, extricated the
completely charred bodies of the abovesaid 5 victims from
the burnt debris. PW-7 then recorded the statement of PW-1
which is marked as Ex. P-1, the first information. Based
on the said information, Crime No.151/88 was registered at
Idukki Police Station vide Ex. P-7. It is stated that
PW-13, Thulasidas conducted the further investigation and
held inquest on the dead bodies as per Ex. MO-11 as also
the spot Mahazar. On his request a team of doctors led by
the District Medical Officer arrived at the scene and
conducted the post mortem. The report of the said post
mortem signed by one Dr. Dias was marked as Ex. P-9
series. As per the said report the doctor gave a
provisional opinion that the cause of death was due to
burning and reserved his final opinion till after the
receipt of the report of Chemical Examiner to whom the
viscera were sent for examination. The said PW-13 is stated
to have examined 116 witnesses and gave his report to the
Superintendent of Police on 6.9.1988 to the effect that the
death of these victims was due to fire accident. Based on
his report the case was closed as deaths due to accident.
It is the further case of the prosecution that on
7.8.1988 PW-28 K.S.Augustine arrested the appellant in an
unrelated case and seized a country-made revolver (MO-13)
and under a Mahazar Ex. P-18, the accused was prosecuted
for the offences of resisting arrest and illegal possession
of arms under Sections 332, 324, 506 IPC and 25(1)(a) of the
Indian Arms Act before the JFCM Court, Adimali.
While the incident of 6.8.1988 involving the death of
Johnny and his family lay closed as an accidental death, in
the year 1992 PW-43 M.V. Thomas came to know through
reliable sources that the appellant was involved in the said
case of death of Johnny and his family, and having come to
know that this appellant was in custody in some other cases,
he filed an affidavit and a report before the JFCM Court,
Chalakkudy to obtain custody of the appellant to interrogate
him. The said custody was ordered by the Magistrate on
4.5.1992 and the appellant was handed over to the custody of
PW-43 from 4.5.1992 to 11.5.1992. It is also stated that
the accused was interrogated by PW-43 and Superintendent of
Police, Crime Branch, by name K.I. Michael, PW-45, and
during the course of questioning on 11.5.1992 the appellant
admitted before these persons that he had committed the
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murder of Johnny and his family and he was also involved in
4 other crimes, namely, SC No.77/93, SC No.26/93, SC
No.29/93 and SC No.47/93. Since the appellant was required
for further investigation in view of the said confession,
PW-45 filed another report and an affidavit for the further
custody of this appellant which was granted till 25.5.1992.
The prosecution further states that on the statement made by
the appellant which was marked as Ex. 13-A, he was taken to
the house of Johnny at Thadiyampadu at 10.30 a.m. on
25.5.1992 and on being pointed to the well by the appellant,
PW-45 requisitioned the help of one George to recover the
axe (MO-12) said to have been thrown by the accused into the
said well. The prosecution also relied on the evidence of
PW-16 Mathew and PW-18 Kunhu Achari to show that the
appellant was in Thadiyampadu the night preceding the
incident i.e. on 5.8.1988. They also relied on the
evidence of PW-27 Elikutty, aunt of the accused to show that
a few days before and after the incident, the appellant, who
was her nephew, was visiting her and stayed with her.
Prosecution also relied on the evidence of PW-20 Thomas, the
taxi driver, to establish the activities and whereabouts of
the appellant on 7.8.1988. PW-15 Annamma who was a
neighbour of Johnny being the occupant of a house situated
hardly 50 meters away from Johnnys house, identified MO-13,
the axe, as belonging to her and which was found missing a
couple of days after the incident in question. The
prosecution has not examined Dr. Dias who conducted the
first post mortem on the bodies of the victims since he was
not available but has marked his report as Ex. P-9 series
through the evidence of PW-9 Dr. M.N.Vijayan. It is stated
by the prosecution that on being satisfied that the death of
Johnny and his family members was due to homicidal act,
PW-45 requisitioned the services of PW-39, Dr. C.
Radhakrishnan to give his opinion as to the cause of death
of these victims and, accordingly, with the permission of
the authorities concerned the bodies of the victims were
exhumed on 1.6.1992 and during the forensic examination of
the bodies, the said doctor noticed in the skull of Johnny a
fissured fracture involving the right parietal bone which
was extending to the floor of the right middle cranial
fossa. Similar fractures were also noticed in the skull of
Mariakutty. The said doctor also opined that the fractures
noticed by him could have been caused by use of a blunt edge
of weapon like MO-12. He also stated that Dr. Dias who
conducted the previous post mortem had committed many errors
and did not do a proper professional job. He opined that
the deceased Johnny and his family members suffered a
homicidal death. It is based on the evidence collected
during the investigation conducted for the second time under
PW-46 that the appellant was sent up for trial and both the
courts below having noticed that the prosecution case is
based on purely circumstantial evidence, proceeded to accept
the prosecution case and convicted the appellant as
aforesaid and the appellant is now before us in these
appeals.
The law regarding basing a conviction by the courts on
circumstantial evidence is well settled. When a case rests
upon circumstantial evidence, such evidence must satisfy
three tests: (1) the circumstances from which an inference
of guilt is sought to be drawn, must be cogently and firmly
established; (2) those circumstances should be of a
definite tendency unerringly pointing towards guilt of the
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accused; (3) the circumstances, taken cumulatively, should
form a chain so complete that there is no escape from the
conclusion that within all human probability the crime was
committed by the accused and none else. The circumstantial
evidence in order to sustain conviction must also be
complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused. The
circumstantial evidence should not only be consistent with
the guilt of the accused but should be inconsistent with his
innocence. (See Gambhir v. State of Maharashtra {1982 2
SCC 351}). Bearing in mind the above principles, we will
examine the material on record to satisfy ourselves whether
the test laid down by this Court in Gambhirs case (supra)
has been properly applied or not by the courts below.
Having examined the prosecution case in these appeals in the
light of the above judgment of this Court, we are of the
opinion that if the prosecution is able to establish
successfully the recovery of Mos. 12 and 13 then it should
succeed in obtaining a conviction against the appellant,
should it fail then the prosecution cannot establish the
chain of circumstances against the appellant successfully.
Therefore, we will first take up for consideration the
alleged recovery of MO-13 from the appellant. It is the
prosecution case that pursuant to an arrest warrant issued
by the Magistrate, Mavuttupuzha in CC No.224/87 in an
unrelated case, PW-28 was entrusted with the job of
execution of this warrant. Pursuant to the same, he along
with Constable Mathew CW-42 were on the look out for the
appellant, and that on 7.8.1988 they saw the appellant at
about 10.30 p.m. in front of Rajeshwari Hotel in
Kunchithanni and when they tried to arrest him, he resisted
by threatening them with the revolver MO-13 which he pulled
out from a suitcase carried by him. The appellant was,
however, overpowered and arrested by said PW- 28 who
recovered MO-13 along with the suitcase containing some
clothes and Rs.1,500/- in currency notes. It is also stated
that during the course of his arrest the appellant bit said
Mathew causing injury on his chest, therefore, a case being
CC No.239/89 under Sections 332, 324, 506(ii) IPC read with
Section 25(1)(a) read with Section 3 of the Indian Arms Act
was filed by Vellathooval Police before the JFCM Court,
Adimali, in which case the appellant was acquitted. It is
the prosecution case that after the closure of that case,
MO-13 was kept in safe custody with A.R. Camp, Idukki and
after fresh investigation was started by PWs.43 and 45, they
came to know that MO-13 belonged to deceased Johnny and it
was stolen by the appellant after he committed crime. In
this regard, prosecution has relied on the evidence of
PWs.19 and 31 to prove the ownership of MO-13. The courts
below have accepted this case of the prosecution, as stated
above.
However, it should be seen that this very MO-13 and
its recovery from the appellant was the subject matter of CC
No.239/89 before JFCM Court, Adimali. The Magistrate in
that case while acquitting the appellant as per his judgment
Ex.X-11 framed the following points for consideration: 1.
Whether the accused voluntarily caused hurt to PW-3 Police
Constable for preventing him from discharging the official
duty as alleged by the prosecution. 2. Whether the accused
threatened PW-1 and PW-3 for preventing them from
discharging their official duty as alleged by the
prosecution. 3. Whether the accused possessed M.O.I.
revolver without any licence or authority as alleged by the
prosecution. 4. The offence if any committed by the
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accused and the sentence or order.
While discussing the above points, the learned
Magistrate observed : If actually the accused was
possessing a revolver and threatened the police officials by
using it the local witnesses also would have witnessed the
same. It is also worth mentioning here that the alleged
incident took place in a town and even according to the
prosecution many local persons witnessed the incident. In
the light of the above discussion I find that the interested
versions of PWs 1 and 3 cannot be relied on safely. Even if
there might have happened some incident before the arrest of
the accused that need not be as alleged by the prosecution.
There is no sufficient evidence before the court to show
that the accused was possessing M.O.I. revolver or the
police recovered the same from the accused. Hence I find
that the prosecution has not proved the case against the
accused. (emphasis supplied) Based on this finding of the
Magistrate, it was argued on behalf of the appellant before
the courts below that in view of this finding of the
Magistrate the recovery of MO-13 from the appellant on 7th
of August, 1988 cannot be believed. Both the courts below
have rejected this argument. The High Court especially
while doing so held that the point involved in the said
judgment was not the same as is involved in the present
case. The High Court even went to the extent of observing
that in the present case the accused is not being prosecuted
for either possessing or using MO-13 as a weapon of offence.
By this observation, in our opinion, the High Court totally
misdirected itself as to the relevancy of the finding of the
Magistrate because the very question whether MO-13 was in
fact seized from the appellant on 7th of August, 1988 was an
issue before the Magistrate in that case and the same is
also an issue in this case. In the judgment as per Ex.X-11,
the learned Magistrate disbelieved the evidence of PW-28
who, in that case, was examined as PW-1. The Court in that
case also disbelieved the recovery of MO-13 in specific
terms from the appellant. Therefore, the said finding of
the Magistrate is a relevant fact in deciding whether MO-13
was recovered from the appellant immediately after the crime
so as to implicate the accused in this case. This finding
of the Magistrate ought to have been given due weightage,
hence the courts below committed a grave error in rejecting
the findings of the Magistrate as irrelevant. If this very
evidence of PW-28 as to the recovery of MO-13 is rejected as
unreliable in that case, in our opinion, the prosecution
should establish convincingly why the very same evidence
should be believed in this case. This having not been done,
the evidence of PW-28 remains to be doubtful. This apart,
there are certain other probabilities which should be
noticed when we consider the prosecution case as to the
recovery of MO-13. It is in evidence that immediately after
the death of Johnny on 6.8.1988 all the neighbouring police
stations were informed of the said crime and PW-28 admits as
also having received such information. PW-43 at that point
of time was a Circle Inspector at Adimali Police Station
which had the jurisdiction over Rajakkad Police Station,
hence we can reasonably presume that he too had this
information. It is also in evidence that PW-20 the taxi
driver with his friends was also arrested on 7.8.1988 for
having taken the appellant to various places in his taxi on
the said date. This witness had told the police that he had
taken the appellant to the house of Elikutty PW 27 at
Chelachuvadu near about the house where Johnny and his
family were murdered. He also stated that the appellant had
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picked up the suitcase from that house on the evening of 7th
August, 1988 and it is the case of the prosecution as stated
by PW 28 that when he tried to arrest the appellant he
pulled out the revolver MO-13 from the said suitcase. PW-28
had also the knowledge that the appellant was a notorious
criminal having been involved in many a serious crime like
robbery and dacoity and was registered as K.D in Rajakkad
Police Station. Therefore, it is surprising that either PW
28 or his superiors did not suspect that MO-13 could have
been stolen, and did not think it fit to investigate as to
the origin and ownership of this revolver. This admitted
failure on the part of PW 28 and his superiors at that point
of time creates a serious doubt in our minds as to the truth
of recovery of MO 13 from the appellant and its ownership.
Defence has suggested to both PWs.43 and 45 that MO-13 is a
weapon which was with Police having seized the same in some
other case and which was planted on the appellant to obtain
a more severe conviction against him for having assaulted a
Police official in CC No.224/87 and having failed there, the
same revolver is now being used to implicate the appellant
in this case. This suggestion is, of course, denied. But
the fact remains that in the background of the facts
narrated by us, the recovery of MO-13 from the appellant
remains to be doubtful.
The prosecution in this case has relied on the
evidence of PWs 19 and 31 to establish the ownership of
Johnny in respect of MO-13. It is seen that PW-19 Kamalan
stated that he had seen a revolver in the hands of Johnny
which he thought was a playing gun, and the said pistol was
similar to MO-13. In his cross examination, he stated that
he was shown MO-13 about two months prior to his evidence by
the Crime Branch Police in their office at Kottayam. He
also stated that the Crime Branch Police has specially asked
him whether any weapon was seen in the hands of Johnny and
then he remembered having seen the gun in his hands. He
further stated that even though he had mentioned this to the
police at the time he does not know why the same has not
been recorded, while PW-31 Omana who is a sister-in-law of
deceased Johnny stated that she had seen MO 13 revolver with
Johnny who used to keep the same in a drawer of a table in
his house. She admits that she has not told anybody about
Johnny having a revolver until the same was shown to her in
the court even though the police in fact first questioned
her about 2 to 3 days after the death of Johnny and his
family. In the background in which the prosecution has
produced its evidence in this case as to the ownership of
Johnny of MO-13, we find it difficult to accept these
evidence which has come on record for the first time after 4
years of the incident. Hence, we are reluctant to place any
reliance on the same and hold that the prosecution has not
established either MO-13 belonged to Johnny or the same was
recovered from the appellant.
We will now consider the prosecution case in regard to
the recovery of MO-12, the axe. It is the case of the
prosecution that when PWs.43 and 45 interrogated the
appellant on 11.5.1992, the appellant during the course of
his statement to the Police had stated that he had concealed
the axe MO-12 which was used in the commission of this crime
by throwing the same into a well in the compound of the
house of deceased Johnny and that he would show the place if
taken to the house of Johnny. This part of the statement
made to the Police is marked as Ex. 13-A. It is the
further case of the prosecution that PW-45 on 21.5.1992 took
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the appellant to the house of Johnny at Thadiyampadu and on
the appellant pointing at the well where he allegedly threw
the axe when PW-45 requisitioned the help of one George
(CW-37) to recover the said axe. Said George, it is
alleged, got into the well and recovered MO-12, the axe,
which was then completely rusted and covered with mud. This
recovery is evidenced by Mahazar P-13 to which PW-22 Jose is
the witness. To connect the use of MO-12 with the crime,
the prosecution has examined PW-15 Annamma who resided in a
house about 50 meters away from the house of Johnny and who
stated before the court that MO-12 belonged to her family
for a number of years and the same was being kept in the
open verandah of her house. She stated that she came to
know that the axe was missing 2 days after the murder of
Johnny but she did not tell anybody about the loss of this
axe. She admits that there is no specific identification
mark on MO- 13, and it is similar to other axes used by
other agriculturists. The High Court has accepted her
evidence by complimenting her power of keen observation and
memory without considering the fact that for four years the
witness had not stated to anyone that someone had taken away
her axe or that there was no reason to identify and say that
the said axe belonged to her. Then, the prosecution through
the evidence of PW-14, V.S. Parameswaran Nair, the then
Asstt. Director, Biology Division, Forensic Science
Laboratory, Thiruvananthapuram, tried to establish a
connection between the crime and MO-13. The said witness
stated that when he examined the axe though it was rusted,
he was able to trace some blood stains on it. He has denied
the suggestion of the defence that the detection or
existence of blood stains on the axe which was immersed in
water for 4 years is not possible, by giving certain
scientific explanation for the same. His evidence does not
establish beyond all reasonable doubt that this MO-12 was
used in assaulting Johnny and his family because he has not
been able to trace any human blood on MO-12. Even though he
found some blood, he was unable to analyse the said blood to
find out whether the same belonged to human beings or not.
In the absence of any such finding, in our opinion, from the
evidence of PW-14, it is not possible to come to the
conclusion that the axe in question was really used in the
assault on Johnny and his family members. We may note at
this stage that there is no direct evidence to connect MO-12
with the death of Johnny and his family members. However,
to further connect this MO with the crime, the prosecution
has examined PW-6 Luckose who states that there were blood
clots in the head of Johnny which he had noticed at the time
of inquest. It is extremely difficult to accept this
version of PW-6 because either in the inquest Mahazar or in
the post mortem report no trace of blood was found in the
head of Johnny or other members of the family. This witness
though had given a complaint as per Ex. X-1 a few days
after the incident to the Chief Minister, did not mention
this fact in the said complaint nor has he stated before the
investigating agency in the first round of litigation as to
the existence of blood clots. That apart, as seen from the
post mortem report Ex. P-9 series, the doctor who conducted
the post mortem then did not notice any external head injury
much less any blood clots. For all these reasons we are not
in a position to place reliance on the evidence of PW-6.
The prosecution in this regard has also relied on the
evidence of PW-39 Dr. C. Radhakrishnan who in his evidence
has stated that the skulls examined by him had suffered
fractures and he was of the opinion that the said fractures
could be caused by the use of blunt edge of MO-12. In our
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opinion, this evidence also does not help the prosecution
because in the original post mortem no external injury to
the head was noticed nor was any blood clot or external
injuries were noticed in the inquest Panchnama of the
bodies. In the absence of any such recorded injuries, it is
difficult to accept the evidence of PW-6 or that of PW-39.
Both the courts below have placed strong reliance on the
evidence of PW-39 which only goes to show that the skulls
examined by the said witness contained fractures which in
his opinion were ante mortem. Per contra, Ex. P-9 series
which is the first post mortem report, does not refer to any
external head injury much less any bleeding injury. It is
the case of the prosecution that the doctor who conducted
the first post mortem did not do a professional job. But,
we cannot accept this explanation on the face of it. Dr.
Dias who signed the said post mortem report as per Ex. P-9
series, has not been examined by the prosecution on the
ground that he was not available for examination. Without
examining Dr. Dias, it will be unfair to come to the
conclusion that the contents of Ex. P-9 series do not
reflect the true state of affairs as it existed when the
first post mortem was conducted. Similarly, without such
examination of the said doctor, it will not be possible for
us to accept the evidence of PW-39 to come to the conclusion
that Dr. Dias did not do a proper professional job. The
benefit of doubt, which arises out of the two conflicting
post mortem reports, in our opinion, must go to the
appellant. Therefore, we are unable to accept the finding
of the courts below that the prosecution has established
beyond reasonable doubt that MO-12 was used by the appellant
in execution of the crime, as stated by the prosecution. We
will now examine the other circumstantial evidence adduced
by the prosecution in this case. To establish the presence
of the appellant in Thadiyampadu, the prosecution relies on
the evidence of PWs.16 and 18 - Mathew and Kunhu Achari
respectively. PW- 16 states that he was a friend of
deceased Johnny and used to meet him regularly to go to the
local arrack shop to take drinks. He stated that on
5.8.1988 also he went with the deceased to the arrack shop
and while they were consuming liquor he saw the appellant
coming in the company of PW-18 to consume liquor. He states
that at about 8 p.m. he and the deceased Johnny left the
arrack shop and at about the same time, he saw the appellant
and PW-18 also coming out of the said shop. He came to know
the next day that Johnny and his family had died in a fire
accident. PW-18 Kunhu Achari says that he knew the
appellant and was in friendly terms with him and he saw him
in the evening of 5.6.1988. He was invited by the appellant
to have drinks with him and they also went to the same
arrack shop where PW-16 and the deceased Johnny were
consuming liquor. This witness says that he saw the
deceased in the said shop and after some time the deceased
with PW-16 went away, and at about the same time, this
witness and the appellant also left the said shop and next
morning he came to know about the death of Johnny and his
family. From this the prosecution wants to establish the
presence of the appellant near Thadiyampadu in the night of
5th August, 1988. PW-27 is Elikutty, an aunt of the
appellant who has stated that the appellant had come to her
house two days before the incident, stayed with her and on
7th August, 1988 he had gone out and came back to collect
his suitcase. From this the prosecution wants to establish
that the appellant was near about Thadiyampadu on the day
after the incident. It is seen from the prosecution
evidence that the appellant was no stranger to this place.
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On the contrary, he was a frequent visitor. He has an aunt
in Chelachuvadu which is a few kilometers from the place of
incident. The appellant was known to the local people.
Therefore, assuming the prosecution evidence led through
PWs.16, 18 and 27 is true, there is nothing exceptional
about the appellants presence in Thadiyampadu so as to draw
any inference adverse to the appellant, and this
circumstance by itself would not be sufficient to come to
the conclusion that the appellant was responsible for the
death of Johnny and his family members. The prosecution has
also relied upon the evidence of PW-12 Jose to establish
that Johnny had sold his mini lorry for which he had
received Rs.25,000/- as an advance and he was to get the
balance sum of Rs.22,000/- on 5.8.1988 but the same was not
paid to him on that day. PW-16 Mathew states that on the
day he went with the deceased to the local liquor shop,
Johnny was carrying a paper bundle containing biscuits for
his children. From this, the prosecution wants to draw an
inference that the appellant might have thought that Johnny
had received the balance consideration of Rs.22,000/- which
he was carrying in the paper packet and with a view to steal
that money he committed the murder of Johnny and his family.
From the evidence of PWs.12 and 16 and for that matter from
the other evidence led by the prosecution, there is no
material to arrive at the conclusion that the appellant had
the knowledge that Johnny had sold his mini lorry and he was
to get the balance consideration on 5.8.1988. In the
absence of any such material to infer that the appellant was
under an impression that Johnny had substantial cash in his
house, is wholly erroneous and baseless. Inference so drawn
must be held to be without foundation. Therefore, these two
circumstances of the appellants presence in Thadiyampadu
and Johnny having sold his mini lorry cannot be the
circumstances to conclude that the appellant committed the
murder of Johnny and his family.
The courts below have also failed to take into
consideration two important improbabilities in the
prosecution case. It is the case of the prosecution that
the appellant gained entry to the house of the deceased by
making a hole in the wall next to the kitchen door. It has
come in evidence that the walls of the house of Johnny were
constructed with bricks and were strong. If that be so, the
prosecution has not established how the appellant could have
made a hole in such a wall without noise and without waking
up the inmates of the house. This inference of ours
improbabilises the possibility of the victims being attacked
when they were asleep. The next improbability in the
prosecution version is that the crime was committed in the
manner alleged by the prosecution or that the appellant
alone could possibly have committed it in the manner alleged
because the house of Johnny is a two-room accommodation and
such an attack on one victim cannot go without awakening the
other inmates. If that be so, the victims who were yet to
be attacked, in all probability, would have cried for help
which would have certainly awakened the neighbour like
PW-15. The prosecution has not adduced any evidence to show
any such hue and cry were raised by the victims. A feeble
attempt was made through PW-15 to say that she did wake up
in the middle of the night that day after she was told by
her father that he had heard some noise outside but she
stated that after satisfying herself that there was no such
cause for noise, she went back to sleep. The fact that the
incident of assaulting five victims by a lone attacker has
gone unheard by anybody in the vicinity, also improbabilises
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the prosecution case as to how the crime in question was
committed.
Having carefully examined the evidence in this case,
we are of the opinion that the prosecution has failed to
establish the circumstances relied by it to establish the
guilt of the appellant.
For the reasons stated above, we allow these appeals.
The judgment and convictions of the courts below are set
aside. It is seen from the impugned judgment that the
appellant is already serving another life sentence in some
other case. Therefore, there shall be no order as to his
release. However, if the appellant is not required in any
other case or to serve any other sentence, he shall be
released from the custody forthwith.