Kerala High Court
Noufal Aseez vs State Of Kerala on 24 June, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:45246
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
TUESDAY, THE 24TH DAY OF JUNE 2025 / 3RD ASHADHA, 1947
CRL.A NO. 1327 OF 2023
AGAINST THE ORDER/JUDGMENT DATED 29.09.2020 IN SC
NO.657 OF 2019 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE
APPELLANT/1ST ACCUSED:
NOUFAL ASEEZ
AGED 31 YEARS
S/O ABDUL ASEEZ, AGED 31 YEARS,
RESIDING AT VADAKKETHADATHIL HOUSE,
PARAKANDY, MUNNA MANZIL, NALLALAM.P.O,
ARIKODU, KOZHIKODE DISTRICT,
NOW RESIDING CONVICT NO: C- 283/20, CENTRAL PRISON AND
CORRECTIONAL HOME, KANNUR DISTRICT, PIN - 673027
BY ADV SRI.V.A.AJIVAS
RESPONDENT/STATE & COMPLAINANT:
STATE OF KERALA
REPRESENTED THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR HEARING
17.06.2025, THE COURT ON 24.06.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The judgment of conviction and the order of sentence passed
against the 1st accused in S.C. No.657/2019 on the file of Additional
Sessions Court-II, Kozhikode, for offences punishable under Sections 302
and 201 of the Indian Penal Code are under challenge in this appeal. By
the impugned judgment, the 2nd accused, who faced trial along with the
1st accused, was acquitted.
2. The facts of the case in brief are as follows:
Due to an animosity that Sudheer Babu @ Cheruthu Sudheer, the
deceased in this case, had attempted to engage in unnatural sex with the
1st accused and on another occassion Sudheer Babu had beat on the face
of the 2nd accused at a place called Mahe, the accused Nos.1 and 2 in
furtherance of their common intention, on 05.11.2018 at some time
between 8 a.m. and 9 a.m., inside the room of an abandoned railway
quarters bearing No.CLT 96B, situated on the eastern side of the railway
station, Kozhikode, assaulted Sudheer Babu by kicking and murdered him
by hitting on his head with a brick. After committing murder of Sudheer
Babu, the accused with an intention to cause the disappearance of
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evidence, took the dead body of Sudheer Babu to a bushy area near the
compound wall of the said railway quarters and covered the same with an
asbestos sheet. Hence, the accused are alleged to have committed the
offences punishable under Sections 302, 201 r/w 34 IPC.
3. On completion of the investigation, the final report was
submitted before the Judicial First Class Magistrate Court-I, Kozhikode.
Being satisfied that the case was one triable exclusively by the Court of
Session, the learned Magistrate, after complying with all the necessary
formalities, committed the case to the Court of Session, Kozhikode, under
Section 209 of the Criminal Procedure Code. After taking cognizance, the
learned Sessions Judge referred the case for trial and disposal to the
Additional Sessions Court-II, Kozhikode.
4. On production of the accused before the trial court, the
learned Sessions Judge, after hearing both sides under Section 227 of the
Cr.P.C., and perusal of records, framed a written charge against the
accused for the offences punishable under Sections 302, 201 r/w 34 of the
Indian Penal Code. When the charge was read over and explained to the
accused, both of them pleaded not guilty and claimed to be tried.
5. The prosecution, in its bid to prove the charges levelled
against the accused, has altogether examined 41 witnesses as PW1 to
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PW41, and marked Exts.P1 to P36 and MO1 and MO12(a). After
completion of prosecution evidence, when the accused were questioned
under Section 313 of the Cr.P.C., both of them denied all the incriminating
materials brought out against them in evidence. On finding that the
accused could not be acquitted under Section 232 of the Cr.P.C., they were
called upon to enter their defence and adduce any evidence they may
have in support thereof. However, from the side of the accused, no
evidence whatsoever has been produced.
6. After trial, the 2nd accused was found not guilty of the
charges levelled against him and he was acquitted under Section 235(1) of
Cr.P.C. However, the 1st accused was found guilty of offences punishable
under Sections 302 and 201 IPC, and he was convicted and sentenced to
undergo rigorous imprisonment for life and to pay a fine of Rs. 50,000/-
(Rupees fifty thousand only) for the offence punishable under Section 302
of the IPC. In default of payment of fine, the accused was ordered to
undergo rigorous imprisonment for six months. For offence punishable
under Section 201 IPC, the 1st accused was sentenced to undergo
rigorous imprisonment for five years and to pay a fine of Rs. 10,000/-
(Rupees ten thousand only) with a default clause to undergo rigorous
imprisonment for three months. Aggrieved by the said judgment of
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conviction and order of sentence passed against the 1st accused, this
appeal has been preferred.
7. It was on the strength of the complaint given by one
Muhammad Rafi that his brother Sudheer Babu went missing, an FIR was
registered at Panniyankara Police Station under Section 57 of the Kerala
Police Act for man missing. The said brother of the deceased was
examined as PW2. On examination before court, PW2 deposed in the
following lines: He and his deceased brother, Sudheer Babu, were residing
in the same house. On 05.11.2018, his brother went missing, and hence
on 17.11.2018, he lodged a complaint before the Police. His brother used
to come to his house occasionally, and that is the reason why there
occurred a delay in lodging the complaint. His brother was a regular
drinker but not quarrelsome. He is having acquaintance with the accused
as they used to visit his house along with his deceased brother. Both the
accused were friends of his deceased brother, and they used to visit Mahe
together. He was not aware of any issues or quarrels between the
accused and his brother. After a few days of lodging the complaint, the
police informed him that the dead body of his brother had been found.
The dead body of his brother was found around 7 km away from his
house. He reached the said place within 10 to 20 minutes of receiving the
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information from the Police. When he reached there, he saw the 1st
accused pointing out the dead body to the Police. According to PW2, the
belt, garments, and footwear found on the dead body were those of his
brother, and hence, he could identify the dead body. When a specific
suggestion was put to PW2 by the defence counsel that the accused had
no animosity or disputes with the deceased, PW2 admitted the said
suggestion. Similarly, PW2 admitted that the railway quarters that situated
near Kozhikode railway station, where the alleged incident in this case
occurred, is a place where the general public regularly passes through.
8. PW3 is another witness examined by the prosecution. She
deposed that the deceased and the 1st accused were her acquaintances.
According to her, on the day before Deepawali in 2018, during day
daytime, she drank liquor along with the deceased and the first accused
by standing near Apsara theatre, Kozhikode. Then the 2nd accused also
came there, but he did not drink liquor. Thereafter, she saw the deceased
and both the accused leaving together. Later, while she was having a
meal, the 1st accused returned alone, looking perplexed. When she asked
him what happened, he did not respond. Afterwards, she, along with the
1st accused, went to Kannur by train, where she met one Aneesha,
Musthafa, and Rafi at the railway station. According to PW3, she was
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unaware of any dispute or issues between the deceased and the accused
in this case. During cross-examination, PW3 asserted that when the
deceased left along with the accused in this case, all of them were in a
friendly mood. According to PW3, on that day, she was inebriated and she
could not say what happened thereafter.
9. Another important witness examined by the prosecution is
PW4. According to him, on 27.11.2018, PW2, the brother of the deceased,
called him over phone and asked him to come near to the railway
quarters. When he reached there, he saw the 1st accused standing inside
the railway quarters and describing to the Police on how to exit the railway
quarters. The 1st accused also pointed out a decomposed dead body,
which was found near the back side compound wall of the railway
quarters, covered with an asbestos sheet. PW2 then identified the dead
body as his brother’s and became distraught. Furthermore, PW4 deposed
that he saw the 1st accused telling the Police that he had hit on the head
of the deceased using a brick. According to PW4, he witnessed the police
taking the 1st accused inside the room of the said quarters. But PW4 did
not enter the said quarters and had not seen any brick. Thereafter, he
saw the Police preparing an inquest after examining the deceased’s body,
and he signed the inquest report.
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10. When the nephew of the deceased was examined as PW5 he
deposed that he is a signatory to Ext.P4 scene mahazar prepared by the
police. According to PW5, he saw the Police recovering a brick after
describing the same in the scene mahazar. At the time of effecting
recovery, he saw the 1st accused pointing out every matter to the Police.
PW5 identified the brick recovered in terms of Ext.P4 mahazar, and the
same was marked as MO4. During cross-examination, PW5 testified that
when he saw the accused and the Police, they were all near the dead
body.
11. The owner of a shop situated near the railway quarters,
Kozhikode was examined as PW9. According to him, on 27.11.2018, the
Police came to the railway quarters. He deposed that a foul smell had
been emanating from that area for several days, and he had assumed it
was due to a dead animal, like a dog or something like that. He told the
said fact to the investigating officer.
12. When another witness was examined as PW20, he deposed
that on 24.12.2018 at around 1 p.m., he saw the Police arriving near the
railway quarters, with the 2nd accused. Thereafter, he saw the 2nd
accused pointing out the premises. Thereafter, the 2nd accused took a
brick and handed it over the same to the police. The 2nd accused also
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pointed out a knife to the police. According to PW20, thereafter, the Police
prepared a mahazar and he also signed it. Ext.P18 is the said mahazar.
During cross-examination, when PW20 was confronted with a knife, he
deposed that the same is the knife taken and handed over by the 2nd
accused to the Police, and the said knife is marked as MO10. Moreover,
PW20 identified MO4 as the brick recovered by the Police as per Ext.P18
mahazar.
13. PW21 is a witness to another recovery mahazar. On
examination before court, he deposed on 24.12.2018, while he was
working as a Police Constable in Town Police Station, Kozhikode, he saw
the investigating officer recovering a pair of chappal on the strength of the
disclosure statement given by the 2nd accused. According to PW21, the
said chappal was recovered in the presence of a scientific officer, and
when the same was recovered, blood stain was found on the said chappal.
According to PW21, he is also an attestor to Ext.P12 seizure mahazar in
terms of which the said chappal was recovered. PW21 identified MO8 as
the chappal so recovered.
14. The Police Constable attached to Panniyankara Police Station,
who registered this case, was examined as PW31. According to him, on
17.11.2018, while he was on GD charge duty, PW2 came with a complaint
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that his brother went missing, and Ext.P2 is the FIS given by PW2.
According to PW31, on the strength of the FIS given by PW2, he
registered this case by booking an FIR under Section 57 of the Kerala
Police Act, and the said FIR is marked as Ext.P22. During
cross-examination, PW31 admitted that what PW2 stated was that the
deceased went missing for the last two weeks.
15. A crucial witness examined by the prosecution is PW33.
According to him, he is having acquaintance with the deceased in this
case. Once, there occurred a dispute between one Shoukath and Sudheer.
In the said dispute, when he intervened, Sudheer inflicted injuries on his
left hand and neck with a blade. Three days after the said incident, he
reached Kozhikode, and from there he went to Mahe. It was in the month
of November, 2018 he went to Mahe. When went to Mahe by train, one
Aneesha, Noufal (A1), Ansar (A2) were also in the train. When they
reached Mahe, Noufal (A1) told him that “ചെറുത് സുധീറിൻ്റെ ശല്യം ഇനി
ഉണ്ടാകില്ല”. Thereafter, the 2nd accused told him that if he provided
liquor, he would disclose a happy news to him. Thereafter, he gave one
peg of liquor to the 2nd accused and he then told that “ചെറുത് സുധീറിനെ
ഞാനും നൗഫലും കൊന്നു പുതപ്പിച്ചു കിടത്തി”.
16. Another crucial witness examined by the prosecution is PW36.
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On examination before the court, PW36 deposed that he is having
acquaintance with the deceased and the 1st accused in this case.
According to him, it was in the month of November 2018, he saw the
deceased last. On that day, while he was drinking liquor along with one
Faisal by sitting in the railway quarters, the deceased, accompanied by
both the accused, came there. Thereafter, there occurred a wordy
altercation between the deceased and Faisal. Then he dispersed both of
them. Thereafter, he left the quarters. While leaving the quarters, when
he turned back, he saw Sudheer and Noufal (A1) entering the room of the
said quarters and closing the door. Then Ansar (A2) was roaming here
and there. After two days of the said incident, he was arrested in
connection with a petty case and he was remanded to judicial custody in
the District jail, Kozhikode. On the same day, the 1st accused was also
admitted in the said jail. When he asked, the 1st accused said that he was
remanded in connection with an Abkari case. After three or four days of
the incident, it was heard from the jail that the deceased had taken the
1st accused inside the room of the railway quarters to engage in unnatural
sex with the 1st accused. When he asked about the same to the 1st
accused, he admitted the same. During cross-examination, PW36 admitted
that, other than seeing the 1st accused and the deceased entering the
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room of the railway quarters, he did not see them closing the door.
17. The Circle Inspector of Police who conducted the major part
of the investigation in this case was examined as PW40. On examination
before court, PW40 deposed as follows: It was on 06.12.2018, he took
over the investigation in this case. As part of the investigation, he verified
the records of the previous investigation. Thereafter, while making efforts
to apprehend the 2nd accused, he got information that the 2nd accused
was found in and around Palakkad and Coimbatore. Subsequently, on
24.12.2018, the 2nd accused was found near Olavakkode railway station
and he was brought to the Police Station, and his arrest was recorded on
the same day at around 12.15. p.m. Ext.P17 is the arrest memo prepared.
According to PW40, during interrogation, the 2nd accused made a
statement that “അന്ന് ഉപയോഗിച്ച ചെരുപ്പ് തന്നെയാണ് ഇപ്പോഴും
ഉപയോഗിക്കുന്നത് എന്നും എൻ്റെ കൂടെ വന്നാൽ മാറ്റിയിട്ടു കട്ട കാണിച്ചു
തരാം എന്നും വലിച്ചെറിഞ്ഞ കത്തി കാണിച്ചു തരാം എന്നും പറഞ്ഞു “. The
relevant portion of the said disclosure statement given by the 2nd accused
was separately recorded and produced before the court. Ext.P30 is the
relevant portion of the disclosure statement separately recorded by him.
Thereafter, the chappal worn by the accused was taken into custody after
being examined by a scientific officer, and on examination, the presence of
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blood was noticed in the chappal, and the said chappal was taken into
custody after describing in Ext.P12 seizure mahazar. MO8 series is the
said chappal. Thereafter, at about 2.05 p.m., as led by the accused, he
reached at an abandoned railway quarters, and the accused told that it
was inside the room of the said quarters that the murder was committed.
Thereafter, he prepared an observation mahazar, and Ext.P18 is the said
mahazar. The door pane used by the accused for concealing the dead
body was also seized after describing in Ext.P18 mahazar and thereafter
entrusted the said door pane with railway authorities as the same was the
property of the railway. Thereafter, the 2nd accused took and produced
some broken pieces of a brick from the south-eastern corner of the said
railway quarters. Moreover, the 2nd accused also took a knife from the
north eastern corner of the railway quarters from inside a bushy area and
handed over the same to PW40. According to PW40, the said knife was
the knife that was kept in the loin of the deceased at the time of the
occurrence of this case, and thrown away by the accused in this case.
PW40 identified the MO12 series piece of the brick and knife seized as per
Ext.P19 mahazar. PW40 identified MO11 as the door panel, which he had
recovered as per Ext.P19. The relevant portion of the confession
statement given by the accused and which led to the recovery of the knife
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and brick, and noted in Ext.P19 mahazar, is marked as Ext. P19(a).
According to PW40, thereafter, he submitted a report before the court
showing the correct name and address of the 2nd accused. Subsequently,
he interrogated the witnesses and recorded their statements. Thereafter,
he produced all the items seized in this case after describing in Ext.P33
property list. The forwarding note prepared by PW40 for sending the
thondi articles recovered in this case for FSL examination is marked as
Ext.P32. Thereafter, he produced the 2nd accused before the Court.
18. The Additional Sub Inspector of Police, Panniyankara Police
Station, who conducted a part of the investigation in this case, was
examined as PW39. On examination before the court, PW39 deposed that
he conducted a part of the investigation in this case as instructed by the
Sub Inspector of Police, Panniyankara police station. He further deposed
that during the course of his investigation, he got information that the 1st
accused, who was already remanded in the District Jail in connection with
another case, will be released on 27.11.2018. Accordingly, on 27.11.2018
at around 12 p.m., he waited at the premises of the District jail, Kozhikode
and when the accused came out of the jail, he took the 1st accused near a
transformer installed close to the main gate of the jail and interrogated
him. On interrogation, the 1st accused confessed the crime and hence, he
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effected the arrest of the accused, and Ext.P7 is the arrest memo. The
confession statement given by the accused was recorded on a laptop with
the help of Haris, a Senior Civil Police Officer, who was also with him.
Thereafter, the printout of the said confession statement was taken from
Kasaba Police Station. In the confession statement, the 1st accused
made a disclosure that “എന്നെ കൊണ്ടുപോയാൽ ബോഡി മൂടിവച്ച
സ്ഥലം കാണിച്ചുതരാം”. On the strength of the said statement given by
the accused and as led by the accused, PW39 reached in front of an
abandoned railway quarters situated near Kozhikode railway station. On
seeing the police, several local people gathered there. Thereafter, he
entered the railway quarters and, as led by the accused, subsequently
went to the backside of the said quarters. On the south-eastern corner of
the said quarters, a dead body was found concealed under an asbestos
sheet. The dead body was in a decomposed state. It was the accused
who pointed out the dead body to PW39. Immediately, he contacted the
defacto complainant in this case, who is none other than the brother of
the deceased, and asked him to reach there. Thereafter, he reported the
matter to his superior officer. In the meantime, the brother of the
deceased arrived and he identified the jeans, belt, and chappal found on
the dead body as those of his brother. Thereafter, he prepared an inquest,
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and Ext.P3 is the said inquest report. As the dead body was in a
decomposed state, the dress found on the dead body was not removed at
the time, but it was removed at the time of postmortem examination.
Thereafter, on the basis of the statement given by the 1st accused that
“എന്നെ കൊണ്ടുപോയാൽ സംഭവസ്ഥലവും കല്ലും കാണിച്ചുതരാം”. PW39
entered the room of the said quarters and prepared a scene mahazar.
Ext.P4 is the said scene mahazar. One brick, found at the crime scene,
was recovered after describing in Ext.P4 mahazar. MO4 is the said brick.
Thereafter, the blood stains found near MO4 were also collected with the
help of a scientific assistant. Moreover, a small piece of brick and chappals
found at the place of occurrence were also taken into custody with the
help of the scientific assistant. Relevant portion of the confession
statement given by the accused, which led to the recovery of the brick,
and noted in Ext.P4 mahazar, and proved through PW39, is marked as Ext.
P4(a). The relevant portion of the confession statement of the 1st
accused, which led to the recovery of the dead body, and noted in Ext. P3
inquest is separately marked as Ext.P3(a). According to PW39, thereafter,
he produced the 1st accused before the court. The tear sample, tooth,
and membrane collected from the dead body were sealed in a box and
produced the same before the court, along with a forwarding note for DNA
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examination. As it was revealed that the incident in this case occurred
within the limits of the town police station, the records in this case were
sent to the town police Station, Kozhikode, for further steps.
19. The Doctor, who conducted autopsy examination of the
deceased, was examined as PW37. On examination before the court, she
deposed that on 28.11.2018, while she was working as an Assistant
Professor and Assistant Police Surgeon in the Forensic Department of
Government Medical College Hospital, Kozhikode, she conducted the
postmortem examination of the deceased in this case. According to her,
when the body was produced for postmortem examination, the history
stated was that “missing since 01.11.2018” and the body was partly
skeletal. The postmortem certificate issued by PW37 is marked as Ext.
P26. According to the doctor, she noted the following antemortem injuries
in the postmortem examination:
i) Displaced comminuted fracture on back of left
temporo parietal bones with multiple fissured
fracture extending from it – as fracture separation
into left fronto temporal region and into base of
skull;
ii) Fissured fracture on the squamous part of
temporal bone con right side into the right orbit
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through the floor of right orbital foss. There were
multiple linear fissured fractures with displacement
of fragments over both upper and lower margin of
orbital fossa, right maxillary bone.
iii)There was blood infiltration along the fracture
line over left temp:dro parietal bone and right
temporal bone. The soft tissues retained over the
right side of skull showed blood infiltration within.
Referring to the antimortem injuries noted in the postmortem
examination, the Doctor opined that the death was due to blunt injuries
sustained to the head. Moreover, the Doctor confirmed that the fracture
noted on the head was antemortem and the same could not be caused by
a single fall, as it was a multiple injury. When confronted with MO4 brick,
PW37 opined that the injuries noted on the head could be inflicted by an
object like MO4. During cross-examination to a definite question put by
the defence counsel, PW37 replied that the dead body was estimated to
be less than 30 days old. Moreover, the Doctor deposed that she could
not say the accurate time of death.
20. The entire episode in this case was unveiled following a
complaint lodged by PW2 at Panniyankara Police Station alleging that his
brother, named Sudheer, went missing. Evidently, the said complaint was
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filed on 17.11.2018. The oral evidence of PW2 and the documentary
evidence adduced in this case further reveal that, in the complaint, what
PW2 stated is that, from 05.11.2018 onwards, his brother went missing.
Therefore, it can be gathered that PW2 approached the police station with
a complaint 12 days after his brother went missing. Consequent to the
said complaint, the law was set in motion, and originally, the FIR was
registered under Section 57 of the Kerala Police Act for a missing person.
Thereupon, on the basis of some leads received, the police suspected the
involvement of the 1st and the 2nd accused in this case in the commission
of the offence, and thereafter, both of them were booked. Moreover, it is
alleged that the body of Sudheer was recovered exclusively based on the
disclosure statement provided by the 1st accused, from the compound of
an abandoned railway quarters.
21. Undisputedly, when the body was recovered, it was in a
decomposed state. The evidence of the Doctor who conducted the
postmortem examination reveals that it was partly skeletal. Notably, the
evidence adduced in this case reveals that immediately after the detection
of the dead body, the police contacted PW2, the brother of the deceased,
and, as informed by the Police, he also reached the railway quarters
compound where the dead body was located. PW2 identified the belt,
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garments, and footwear recovered from the dead body as belonging to his
brother, which led to the definitive identification of the deceased. For
further confirmation, the investigating officer arranged for a DNA
examination, the results of which confirmed the recovered body to be that
of Sudheer.
22. Now the crucial question that requires to be considered is
whether the death of Sudheer was an accidental, suicidal, or homicidal
one. While considering the said question, it is to be noted that this is a
case in which there is no direct evidence to prove the occurrence.
However, to address the question regarding the nature of the death, the
evidence of the doctor who conducted the autopsy is highly significant. As
we have already discussed, three antemortem injuries were noted by the
Doctor in the postmortem examination, which include fractures of the skull
on both sides of the head. Referring to the injuries noted in the
postmortem certificate, the Doctor categorically opined that the death was
due to the blunt injury sustained to the head, and the injuries noted could
not have resulted from a fall. According to the doctor, the fractures were
antemortem injuries and could not have been caused by a single fall, as
they were multiple. Though subjected to severe cross-examination, the
doctor maintained her position that the injuries she noted, particularly
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those on both sides of the head, could not have been caused by a single
fall. A combined reading of the evidence from PW37, the doctor, and the
Ext.P26 postmortem report issued by her rules out the possibility of an
accidental or suicidal death. Instead, this evidence leads to the
unequivocal conclusion that the death of the deceased Sudheer was
homicidal.
23. Now, the crucial question that remains to be considered is
who caused the death of Sudheer. While addressing the said question, it
is to be noted that this is a case in which the prosecution is depending on
circumstantial evidence to bring home the guilt of the accused. In Sarad
Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622], the
Hon’ble Apex Court discussed the nature, character, and essential proof
required in a criminal case which rests on circumstantial evidence alone
and held as under:
(i) The circumstances from which the conclusion of guilt is to be
drawn should be fully established;
(ii) 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;
(iii) The circumstances should be of a conclusive nature and
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tendency;
(iv) They should exclude every possible hypothesis except the one
to be proved; and
(v) 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.
24. One of the crucial circumstances pressed into service by the
prosecution to prove the guilt of the accused is that both the accused had
a strong motive to commit the murder of the deceased. The motive
alleged by the prosecution is that prior to the incident the deceased
Sudheer attempted to engage in unnatural sex with the 1st accused and
on another occasion the deceased beat on the face of the 2nd accused at
Mahe and enraged by these incidents, both the accused in furtherance of
their common intention committed murder of the deceased. Though a
motive as stated above was alleged by the prosecution for the commission
of the offence, no convincing evidence whatsoever has been produced to
prove the incidents which allegedly motivated the accused to commit
murder of the deceased. We are not oblivious of the fact that an attempt
was made by the prosecution to prove the alleged motive by examining
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PW36. On examination before the court what PW36 deposed is that on a
day in the month of November, 2018, while he was drinking liquor by
sitting in an abandoned railway quarters along with one Faisal, the
deceased, accompanied by both the accused came there and thereafter
there occurred a wordy altercation between the deceased and Faisal.
According to PW36, upon seeing the same, he intervened and dispersed
both of them. Thereafter, he left the quarters. It is pertinent to note that
PW36 is having a case that while leaving the railway quarters, when he
turned back, he saw Sudheer and the 1st accused entering the room of
the said unoccupied quarters and closing the door. It is by relying on the
said evidence of PW36, the prosecution tried to establish that the
deceased attempted to engage in unnatural sex with the 1st accused, and
it was enraged by the same, the 1st accused committed the murder of the
deceased. However, we are at a loss to understand how the said feeble
evidence of PW36 will help the prosecution to prove the alleged motive.
Merely because of the reason that PW36 saw the deceased and the 1st
accused entering into a room and closing the said room, it could not be
said that it was for unnatural sex. Moreover, the evidence of PW36 itself
shows that the deceased and the 1st accused came to the quarters in a
very cordial mood, and they entered into a room and closed the door
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without any resistance on the part of either of them. Notably, during
cross-examination, PW36 admitted that he did not see anyone closing the
room. Consequently, it cannot reasonably be asserted that the first
accused fostered animosity toward the deceased on the basis of the
latter’s alleged attempt to engage in unnatural sex with him. Likewise, the
prosecution has failed to adduce any evidence whatsoever demonstrating
that on another occasion, the deceased assaulted the second accused,
thereby establishing that the second accused maintained an inimical
relation with the deceased. Moreover, the evidence of PW2, the brother of
the deceased, shows that the accused and his brother were friends, and
he was unaware of any issues or quarrels between them. Therefore, we
have no hesitation in holding that the prosecution failed to establish any
strong motive for the accused to commit the murder. We recognise that
proof of motive is not always essential to establish guilt. When there is
direct ocular evidence, proof of motive holds little significance. However, in
a case relying on circumstantial evidence, proof of motive will certainly
form an important link in the chain of circumstances. Anyhow, the
prosecution’s failure to prove motive alone is not sufficient to acquit an
accused if there are other compelling circumstances to prove his guilt.
25. Therefore, now it is necessary to consider the other
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circumstances presented by the prosecution in this case. Another crucial
circumstance brought out by the prosecution and relied upon by the trial
court to record a conviction is the alleged extrajudicial confession given by
the accused. It was by relying upon the evidence of PW33, the
prosecution attempted to establish that both the accused had confessed to
the crime. According to PW33 in the month of November, the deceased in
this case entered into a quarrel with one Shoukath, and on seeing the
same, when he intervened, the deceased Sudheer inflicted an injury on his
hand and neck with a blade, and the said incident occurred in front of a
shop at Mahe. PW33 further deposed that after three days of the said
incident, he went to Kozhikode. Subsequently, he again went to Mahe
along with one Aneesha, Noufal (A1), and Ansar (A2) by train, and when
he reached Mahe, Noufal told him that “ചെറുത് സുധീറിന്റെ ശല്യം ഇനി
ഉണ്ടാകില്ല”. From the evidence, it is established that ‘Cheruth Sudheer’ is
the nickname of Sudheer, the deceased in this case. In essence, what
PW33 deposed is that the 1st accused told him that there will be no
further troubles from Sudheer, the deceased in this case. However, the
said vague statement allegedly made to PW33 cannot be treated as an
extrajudicial confession because in the statement, the 1st accused had not
admitted the commission of any offence by him. The said statement is not
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at all inculpatory. The statement made by an accused would amount to a
confession only when there is an admission of guilt, and the same must be
inculpatory in nature. Moreover, in order to treat a statement as an
extrajudicial confession, firstly, the said statement should be qualified as a
confession. Therefore, we hold that the statement relied on by the
prosecution, as one allegedly given by the 1st accused to PW33, cannot be
treated as an extrajudicial confession.
26. Notably, PW33 further deposed that on the same day, while
travelling in the train, the 2nd accused told him that if he provided liquor,
he would disclose a happy news to him. Thereafter, he gave one peg of
liquor to the 2nd accused, and then the 2nd accused told that “ചെറുത്
സുധീറിനെ ഞാനും നൗഫലും കൊന്നു പുതപ്പിച്ചു കിടത്തിയിട്ടുണ്ട്”. We do agree that
the statement will amount to an extrajudicial confession. However, it is
pertinent to note that the said extrajudicial confession was made by the
2nd accused, and he is already acquitted in this case. Generally, a
confession made by a co-accused is not binding on the other accused.
However, Section 30 of the Indian Evidence Act carves out an exception to
the said general rule. As per Section 30, when more persons than one are
being tried jointly for the same offence, and a confession made by one of
such persons affecting himself and some other of such persons is proved,
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the Court may take into consideration such confession as against such
other person as well as against the person who makes such confession.
27. No doubt, in the case at hand, both the accused were tried
jointly for the same offence. Moreover, the confession made by the 2nd
accused is of a nature which would certainly affect him as well as the 1st
accused. Therefore, the said confession assumes some significance as far
as the 1st accused is concerned, though it was made by the 2nd accused.
However, by a series of judicial pronouncements, it is well settled that the
confession of a co-accused is a weak piece of evidence. Secondly, the
reliability of an extrajudicial confession always depends upon the credibility
of the person to whom it is made. It is established in this case that the
2nd accused made the statement after he and PW33 had both consumed
liquor. We do agree that merely because of the reason that PW33 was
inebriated at the time when the confession was made is not a reason to
discard his evidence. However, in the absence of corroboration, it is unsafe
to believe his evidence. Moreover, during cross-examination, PW33
admitted that one Musthafa also heard the matter said by the 2nd accused
to him. Even then, no attempt is seen to be made from the side of the
prosecution to examine the said Musthafa as a witness. Therefore, we are
of the view that the alleged extrajudicial confession made by the 2nd
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accused, who has already been acquitted by the trial court, could not be
considered as a strong circumstance to prove the guilt of the 1st accused,
especially when the extrajudicial confession of a co-accused is a weak
piece of evidence.
28. Another crucial circumstance relied on by the prosecution to
connect the accused with the offence alleged in this case is that it was in
the company of the accused, the deceased was last seen alive, and the
accused failed to offer any plausible explanation as to what happened to
the deceased thereafter. It is by relying mainly on the evidence of PW3,
which we have discussed earlier, that the prosecution is trying to
establish that it was in the company of the accused that the deceased
was last seen alive. It is true that on examination before the court, PW3
deposed that she is having acquaintance with the deceased in this case
as well as with both the accused. According to her, on the previous day
of Deepawali in the year 2018, during the daytime, she drank liquor
along with the deceased and the first accused while standing near Apsara
theatre. Meanwhile, the 2nd accused also came there, but he did not
drink liquor. Thereafter, she saw the deceased and both accused leaving
somewhere together. While considering the reliability of the evidence
given by PW3 in the above regard, it is pertinent to note that PW3 is a
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witness declared hostile to the prosecution. However, there is no
proposition of law that the entire evidence of a hostile witness has to be
eschewed from consideration. By a series of judicial pronouncements, it
is well settled that the court can very well sift grain from chaff and can
act upon those portions of the evidence of the hostile witness which
appear to be convincing and reliable. Therefore, we are of the view that
there is nothing wrong in acting on the evidence of PW3 that on the
previous day of Deepawali in the year 2018, the deceased was found in
the company of the accused. The previous day of the Deepawali in the
year 2018 fell on 05.11.2018. Therefore, it is gatherable that it was on
05.11.2018, the deceased was last seen alive in the company of the
accused. Pertinently, the body of the deceased was recovered only on
27.11.2018. In essence, there is a time gap of 22 days between the date
of recovery of the dead body and the date on which the deceased was
last found alive in the company of the accused.
29. It is germane to note that this is a case in which there is no
exact evidence regarding the date and time of death of the deceased.
The Doctor who conducted the autopsy examination, when examined as
PW37, also gave a vague explanation that the death might have
happened within 30 days of the date of postmortem examination.
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Similarly, the evidence of PW2, the brother of the deceased, reveals that
from 05.11.2018 onwards, his brother was found missing. The time gap
of 22 days between the date on which the dead body was recovered and
the deceased was last seen alive in the company of the accused will
seriously affect the reliability of the last seen theory pressed into service
by the prosecution. In the case at hand, the time gap between the
deceased found alive in the company of the accused and later he was
found dead is remarkably long. Therefore, the possibility of any person
other than the accused being the perpetrator of the crime also cannot be
ruled out. There is no convincing evidence regarding the date and time
of death. Even the Doctor, who conducted the autopsy examination,
failed to give a convincing opinion regarding the date and time of the
death of the deceased. Therefore, the absence of evidence regarding the
time of death of the deceased is fatal to this case, rendering the “last
seen” circumstance advanced by the prosecution unreliable.
30. One of the main circumstances relied on by the prosecution to
prove the guilt of the 1st accused is that it was on the strength of the
disclosure statement given by the 1st accused that the dead body of the
deceased was recovered. Apart from the evidence of the investigating
officer, the prosecution is relying on the evidence of PW2 and PW4 to
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prove that the dead body was recovered, as pointed out by the accused.
Out of the two witnesses, PW2 is none other than the brother of the
accused, and PW4 is the friend of PW2. During examination before the
court, PW2 deposed that on 27.11.2018, the Police contacted him over
the phone and informed him that the dead body of his brother was
found. Accordingly, when he entered the compound of the railway
quarters, the 1st accused was there with the Police. He further added
that it was the 1st accused who pointed out the dead body to the police.
In the cross-examination, he admitted that when the Police contacted
him over the phone, the Police told him that the body of his brother had
been detected. A careful scrutiny of PW2’s evidence reveals that prior to
his arrival at the place from where the dead body was recovered, the
police had detected the dead body. Therefore, his evidence that when he
reached there, he saw the accused pointing out the dead body to the
police cannot be believed. Similarly, the evidence of PW4 also shows that
he reached the place of the occurrence as informed by PW2. Thus, it is
discernible that PW4 reached the place of recovery after the detection of
the dead body by the police. Consequently, the assertion by PW2 and
PW4 that they saw the first accused pointing out the dead body to the
police lacks credibility.
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31. Anyhow, we find no reason to suspect the evidence of the
investigating officer that it was on the strength of the disclosure
statement given by the 1st accused, and as pointed out by the said
accused, the dead body was recovered. The relevant portion of the
disclosure statement recorded in Ext.P3 inquest report and proved
through the investigating officer at the time of examination before the
court is marked in evidence as Ext.P3(a). In view of Section 27 of the
Indian Evidence Act, when a fact is discovered based on information
given by an accused, so much of that information as distinctly leads to
the discovery of the said fact can certainly be proved against him and
used as evidence against him. However, in the case at hand, we have
already stated that the prosecution failed to prove any other
circumstances to prove the complicity of the accused in the commission
of the offence. It is a settled legal proposition, evolved through a series
of judicial pronouncements, that the mere recovery of a fact under
Section 27 of the Indian Evidence Act, without corroborating evidence, is
inadequate to form the basis for a conviction.
32. The upshot of the above discussion is that, though the
prosecution had highlighted and attempted to bring several
circumstances to connect the accused with the offence alleged in this
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case, almost all the circumstances stand not proved. In other words, the
prosecution failed to prove a chain of circumstances without missing
links. It could not be said that the proved circumstances lead only to the
hypothesis of the guilt of the accused and are incompatible with his
innocence.
In the result, the appeal is allowed. The impugned judgment of
conviction and order of sentence in S.C. No.657/2019 on the file of the
Additional Sessions Court-II, Kozhikode, passed against the appellant are
set aside, and he is acquitted. He shall be set at liberty forthwith from the
prison concerned, if his continued detention is not required in connection
with any other case. The Registry shall communicate this judgment
forthwith to the Jail Superintendent concerned, where the appellant is
undergoing incarceration.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ncd/ANS