Kerala High Court
Soman.K.D vs The State Of Kerala on 16 January, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 16TH DAY OF JANUARY 2025 / 26TH POUSHA, 1946
CRL.A NO. 811 OF 2020
CRIME NO.171/2016 OF Chittarikal Police Station, Kasargod
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.537 OF 2016
COURT OF SESSIONS, KASARAGOD
APPELLANT:
SOMAN.K.D., AGED 63 YEARS, S/O.DAMODHARAN,
KOCHUKUDIYIL HOUSE, KUPPADI, SULTHAN BATHERI,
WAYANAD-673 592.
BY ADVS.
THAREEQ ANVER K.
SRI.ARUN CHAND
SHRI.ANISH ANTONY ANATHAZHATH
KUM.K.SALMA JENNATH
SHRI.ABHIJITH S.R.
RESPONDENT:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031.
SRI. ALEX M THOMBRA, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
18.12.2024, THE COURT ON 16.01.2025 DELIVERED THE
FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The judgment of conviction and order of sentence passed against
the sole accused in S.C. No.537/2016 on the file of Sessions Court,
Kasargod, for offence punishable under Section 302 of the Indian Penal
Code is under challenge in this appeal.
2. The prosecution case, in brief, is as follows:
On 19.04.2016, at 9.45 p.m., inside a temporary bus waiting shed,
situated on the side of Kollada-Kadumeni Panchayat road, at Kamballur
Kara, the accused, due to animosity that the deceased in this case refused
to give liquor, entered into a wordly altercation with the deceased and
there occurred a scuffle between them. The accused then hit on the head
and face of the deceased using laterite stone and when the deceased fell
down, the accused put another laterite stone on the head of the deceased
and murdered him. Hence the accused is alleged to have committed the
offence punishable under Section 302 of the Indian Penal Code.
3. On completion of the investigation, the final report was
submitted before the Judicial First Class Magistrate Court-II, Hosdurg. As
the case was one triable exclusively by the Court of Session, the learned
Magistrate after complying with all the necessary formalities committed
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Crl. A. No.811 of 2020 3the case to the Court of Session, Kasargod. The learned Sessions Judge
took cognizance of the offence and proceeded to trial.
4. The prosecution, in its bid to prove the charge levelled against
the accused, examined 34 witnesses as PW1 to PW34. Exts.P1 to P33
were exhibited and marked. MO1 to MO42(a) were produced and
identified. Contradictions in the previous statement of a prosecution
witness were marked as Exts.D1 and D2 from the side of the defence.
After completion of prosecution evidence when the accused was
questioned under Section 313 of the Cr.P.C., he denied all the incriminating
materials brought out against him in evidence. On finding that the
accused could not be acquitted under Section 232 of the Cr.P.C., he was
called upon to enter his evidence. But no evidence was adduced from the
side of the accused.
5. After trial, the accused was found guilty of offence punishable
under Section 302 of the IPC and convicted and sentenced to undergo
rigorous imprisonment for life and to pay a fine of Rs.50,000/- (Rupees
Fifty Thousand only) with a default clause to undergo rigorous
imprisonment for one year. The said judgment of conviction and order of
sentence is under challenge in this appeal.
6. This is a case in which there is no direct evidence to prove the
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occurrence and the prosecution is relying on circumstantial evidence to
prove the guilt of the accused. The law was set in motion in this case on
the strength of the FIS given by one Jithesh C.P. When he was examined
as PW1, he deposed as follows:-
He is a taxi driver, residing at a place called Kamballur. He had
acquaintance with the deceased as well as the accused in this case. On
19.04.2016, while he was about to sleep, one of his friends, named
Sreenivasan, contacted him over the phone and informed him that one
person is lying injured inside a waiting shed situated near Kamballur
Bhagavathy Temple. He immediately rushed to the spot on his bike.
When he reached there, one Sreenivasan, Sreedharan, Mohanan and
Santhosh Kumar were also present there. The incident was occurred
inside a waiting shed, near to the house of Mohanan. Mohanan told him
that he arrived at the scene on hearing a noise from the waiting shed.
Mohanan further told that upon seeing a person lying in the waiting shed,
he informed about the same to Sreenivasan and Sreedharan. According to
PW1, the face of the deceased was disfigured due to head injuries. The
deceased was wearing a check-design shirt and an undergarment. MO1 is
the undergarment and MO2 is the shirt. Small pieces as well as a big
piece of a laterite stone were found at the crime scene. MO3 is the big
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laterite stone found and MO4 is the small piece of laterite stone found
there. On close inspection by him along with others who gathered there,
it was revealed that the deceased is none other than Satheeshan. One
packet of biscuits, a packet of sandal sticks, a visiting card, and a purse
were found near to the dead body. A pair of chappals and a single
chappal were found inside the waiting shed. The pair of chappals having a
marking “VKC Pride” were marked as MO6 and MO6(a) respectively. The
single chappal found at the scene of occurrence was marked as MO7. A
dhoti, as well as a towel, were found near to the dead body. MO11 is the
said dhoti. According to PW1, one saffron-colour dhoti was also found
near to the dead body and MO14 is the said dhoti. Thereafter, he gave a
statement to the police. Ext.P1 is the FIS given by him. According to
PW1, after the incident, one Praveen, who is running a shop near to the
waiting shed, told him that he saw the accused and the deceased sitting in
the waiting shed together at 9.15 p.m., when he went after closing the
shop.
7. Another independent witness when examined as PW2,
deposed that he is a teacher by profession and is residing in Kamballur.
There is a petty shop and a waiting shed on the north eastern side of his
house. On 19.04.2016, at about 9.45 p.m., while he was sitting in the
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sit-out of his house, he heard a sound resembling a heavy object falling.
Thereafter he heard a knocking sound from the shop of one Madhavan
(PW10). Then he came out of the house with a torch light and reached
the bus waiting shed. There he found one person lying in the waiting
shed with serious head injuries. Thereafter, he returned to his house and
informed Sreenivasan and Sreedharan about the same. After a short
while, together they went back to the waiting shed, where they found one
big laterite stone near to the dead body of the deceased. Another laterite
stone was also found lying there. PW2 identified MO3 and MO4 laterite
stones. The deceased was wearing a shirt and undergarment, at that time
and PW2 identified MO1 and MO2. Thereafter, one Jithesh (PW1)
identified the deceased as Satheeshan. After a short while, police arrived
there as informed over the phone. Then one Praveen (PW4), the owner of
another shop situated near the waiting shed, told that while closing his
shop, he found the deceased and the accused sitting in the waiting shed
talking to each other. One packet of biscuits, one packet of sandal sticks,
and a plastic cover were also found near to the place of occurrence. One
pair of chappals and a single chappal were also found there. According to
PW2, in the meantime, someone covered the dead body by using a saffron
dhoti.
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8. PW3, who allegedly reached the place of occurrence, upon
knowing about the incident also deposed in similar lines as spoken by PW1
and PW2.
9. The owner of the shop situated near the place of occurrence
was examined as PW4. On examination before the court, PW4 deposed
that he is residing at Kamballoor and is running a shop by the name
‘Kollamkunnel Traders’, near Kamballoor temple. The opening time of his
shop is 8.00 a.m. and closing time is between 9.15 and 9.30 p.m. Usually,
he closes the shop when the last bus arrives. He had acquaintance with
both the deceased and the accused in this case. On 19.04.2016 after
closing the shop and while proceeding to his house he saw Satheesan, the
deceased in this case, and Soman, the accused sitting in the waiting shed.
The waiting shed is situated on the south western corner of his shop.
Near to the waiting shed, there is a petty shop run by one
Madhavan(PW10). The said shop usually closes at 9.00 p.m. According to
PW4, he came to know about the incident in this case at 10.30 p.m., as
told by the son of Madhavan over the phone. Upon hearing about the
same, he reached at the place of occurrence in his vehicle and several
persons were found gathered there. Then he told them that he saw the
accused and the deceased sitting in the waiting shed together. Prior to the
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incident in this case, on the same day evening, the accused and the
deceased came to Kamballoor in an autorickshaw along with one
Damodaran. Thereafter, the accused and the Damodaran went to their
respective houses. The deceased then came to his shop and purchased
scissors and laddu. Thereafter, the deceased also went to his house. After
a short while, the deceased again came to his shop and purchased a
packet of sandal sticks, cucumber and banana. One packet of biscuits and
one packet of beedi were also purchased. By that time, the accused also
reached there. Thereafter, he saw the accused and the deceased talking
to each other. Then the deceased again purchased a cola bottle from his
shop. Thereafter, the deceased and the accused sat on the veranda of his
shop. Then he told both of them that he would not permit them to drink
liquor by sitting there. Then both of them went to the waiting shed and
sat there. The deceased was wearing a check-designed shirt and a
maroon-coloured dhoti. PW4 identified the said shirt and dhoti which
were marked MO2 and MO11 respectively. When he found the dead body
of the deceased, the dhoti was not in the body. But the MO2 shirt was
found on the body of the deceased. According to PW4, the items
purchased by the deceased from his shop were found lying near the body
of Satheeshan. A granite stone and three chappals were found near the
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dead body. According to PW4, the accused was wearing a
saffron-coloured dhoti and a coffee coloured shirt. PW4 identified the said
dhoti and shirt and the same were marked as MO15 and MO16
respectively.
10. When another independent witness was examined as PW5, he
deposed that on hearing about the incident from one Sreedharan, he
reached the waiting shed at 10.00 p.m., and found the victim lying dead
there. One granite stone was found near to the dead body and the face of
the deceased was found disfigured due to the severe injury. PW5 further
deposed that a petty shop run by Madhavan (PW10) and another shop run
by Praveen (PW4) are situated near to the waiting shed.
11. When Madhavan who is running a petty shop near to the
waiting shed, was examined as PW10 he deposed as follows: He is
residing at Kampalloor and has a petty shop near to the waiting shed,
where the incident in this case occurred. He had acquaintance with both
the deceased and the accused. He used to open his petty shop by 7 a.m.
and closes it usually before 9 p.m. He came to know about the incident in
this case on 19.04.2016 at 10.20 p.m. as told by one Sreedharan. On
knowing about the incident, he reached the place of occurrence and found
the dead body of the Satheesan inside the waiting shed. Prior to the
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incident on 19.04.2016 at 6 p.m., he saw the deceased, the accused, and
one Soman coming to Kampalloor junction in an autorickshaw. According
to PW10 while he closed his shop he saw Satheesan, the deceased in this
case, in the shop of Praveen (PW4). During cross-examination, PW10
asserted that when he closed his shop, the accused and the deceased in
this case were in the shop of Praveen.
12. When the Circle Inspector of Police, Vellarikund who
conducted the investigation in this case was examined as PW34, he
deposed that he took over the investigation in this case on 20.04.2016. As
part of the investigation, he prepared Ext.P3 inquest report after
examining the dead body of the deceased. He also identified the thondi
article recovered from the scene of occurrence after describing it in Ext.P3
inquest report. He visited the crime scene along with a Scientific Assistant
and the items collected by the Scientific Assistant from the crime scene
were also taken into custody by describing it in Ext.P16 seizure mahazar.
The items recovered from the crime scene were produced before the court
after entering them in Exts.P21 and 22 property lists along with a
forwarding note. Thereafter, he forwarded the dead body for postmortem
examination. On 21.04.2016, at 8.30 a.m., he arrested the accused after
complying with all legal formalities. On interrogation, the accused had
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given a disclosure statement and on the strength of the said disclosure
statement and as led by the accused, he reached at the house of the
accused and the accused took a shirt and a dhoti from a covered area on
the southeastern side of the veranda of the said house and handed over
the same to PW34. The said shirt and dhoti were seized as per Ext.P6
recovery mahazar. PW34 identified the said dhoti and shirt as MO15 and
MO16 respectively. The relevant portion in the confession statement of
the accused which led to the recovery of MO15 and MO16 was marked as
Ext.P27. Moreover, in the disclosure statement given, the accused further
stated that he had thrown away his left leg slipper and if he is taken, he
would point out the place where the said slipper was abandoned. Hence,
on the strength of the said statement he effected the recovery of a single
slipper, and the said slipper which is identified by PW34 is marked as
MO17. The mahazar by which the MO17 slipper was seized was marked
as Ext.P7. According to PW34, thereafter, the accused pointed out the
place from where he collected the laterite stone used in the commission of
the offence, and an observation mahazar was prepared in the presence of
independent witness. Ext.P2 is the said observation mahazar. It was
PW34 who completed the investigation in this case and laid the final report
before the court.
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13. The doctor who conducted the autopsy examination on the
body of the deceased was examined as PW24. On examination before the
Court, PW24 deposed that on 20.04.2016, while he was working as a
Professor of Forensic Medicine at Pariyaram Medical College Hospital,
Kannur, he conducted the postmortem examination on the body of the
deceased in this case. The post-mortem certificate issued by PW24 is
marked as Ext.P14. Referring to Ext.P14 postmortem certificate PW24
deposed of having noted 11 antemortem injuries in the autopsy
examination on the body of the deceased. Referring to the injuries noted
in the postmortem certificate, PW24 deposed that underneath the above
injuries, the skull was found fractured and fragmented. Similarly, the brain
was completely crushed. Referring to the injuries, PW24 opined that the
death was due to the crush injury caused on the head with a heavy blunt
weapon. When confronted with MO3 and MO4 stones, he deposed that
the injuries noted in the postmortem examination would be inflicted by
using weapons like MO3 and MO4 stones. A conjoint reading of PW24 and
the postmortem certificate issued by him, unequivocally shows that the
death of the deceased was a homicidal one.
14. We have already stated that this is a case in which there is no
direct evidence to prove the occurrence, instead, the prosecution relies on
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circumstantial evidence to establish the accused’s guilt. Before delving into
the details of the circumstantial evidence presented in this case by the
prosecution, it is essential to examine the principles and guidelines
governing the evaluation of such evidence.
15. 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
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
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16. A similar view has been reiterated by the Apex Court in Bodh
Raj alias Bodha v. State of Jammu and Kashmir [AIR 2002 SC
3164], State of Uttarpradesh v. Satish [AIR 2005 SC 1000] and
Subramaniam v. State of Tamilnadu [(2009) 14 SCC 415].
17. In cases built upon circumstantial evidence a complete and
unbroken chain of evidence is a requisite. This chain must inevitably lead
to the conclusion that the accused, and none other than, could have
committed the offence. In other words, to sustain a conviction,
circumstantial evidence must be comprehensive and incapable of
explanation of any hypothesis other than the guilt of the accused. Thus,
such evidence must not only be consistent with the accused’s guilt but also
inconsistent with his innocence.
18. Keeping in mind the above principles, the crucial question in
the case on hand is whether the prosecution has fully and exhaustively
established the circumstances relied upon to prove the charge levelled
against the accused. Furthermore, it must be ascertained whether these
circumstances lead unmistakably to the conclusion of the accused’s guilt,
to the exclusion of any other plausible explanation including innocence.
19. The primary circumstance relied upon by the prosecution to
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establish the accused’s guilt is, that it was in the accused’s company the
deceased was last seen alive. Therefore, the first question to be
considered is whether the prosecution had fully succeeded in establishing
the said circumstance. The evidence that the prosecution relies on to
prove that, the deceased was found last seen alive in the company of the
accused is the evidence of PW4. The evidence of PW4 reveals that he is
running a shop near to the place of occurrence in this case and the
opening time of his shop is 8.00 a.m. and closing time is between 9.15
and 9.30 p.m. The evidence of PW4 in the above regard is well
corroborated by the oral evidence of the other independent witnesses who
are the local inhabitants in that area. Notably, the accused is not disputing
the fact that PW4 is running a shop near the place of occurrence.
Furthermore, the accused does not have a case that PW4 has any
animosity or grudge towards him that would motivate PW4 to provide false
testimony.
20. PW4 asserted that, on 19.04.2016 between 9.15 and 9.30
p.m., while he was returning to his house after closing his shop he saw the
accused and the deceased sitting together inside the waiting shed, the
scene of occurrence in this case. The evidence of PW4 further shows he
had prior acquaintance with both the deceased and the accused and he
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had seen them sitting inside the waiting shed in the headlight of his
vehicle. Additionally, PW4 stated that prior to seeing the accused and the
deceased in the waiting shed, they had visited his shop and when they
prepared to drink liquor by sitting on the verandah of his shop he objected
to the same and told them that he would not permit it. According to PW4,
it was then the deceased and the accused proceeded towards the waiting
shed. As a natural witness, PW4’s evidence carries significant weight.
21. In Ramanand v. State of Himachal Pradesh [1981 (1)
SCC 511], the Hon’ble Supreme Court observed as follows:
“perfect proof is seldom to be had in this imperfect
world and absolute certainty is a myth.”
The concept of circumstantial evidence arises because in some cases
direct evidence would be lacking and so the court has to rely on
circumstantial evidence for deciding upon the matter. The last seen
theory is also based on the same line as in some criminal cases when
there is no direct or tangible evidence regarding how the offence has
been committed or who committed the offence then the last resort for
deciding the case is this theory based on circumstances of the case.
According to this theory, if a person is last seen with the deceased just
before his death or within a reasonable period of his death and no other
person could have intervened between them then the presumption which
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could be taken is that the person who was last seen in the company of
the deceased, is the author of the crime and thus the burden of proof
shifts on him to negate the said presumption.
22. In State of Goa v. Sanjay Thakran [2007 (3) SCC 755] the
Hon’ble Supreme Court observed that:
“the circumstance of last seen together would
normally be taken into consideration for finding the
accused guilty of the offence charged with when it is
established by the prosecution that the time gap between
the point of time when the accused and the deceased
were found together alive and when the deceased was
found dead is so small that possibility of any other person
being with the deceased could completely be ruled out.”
23. Considering the afore-mentioned principles, an examination of
the evidence in this case reveals that PW4’s testimony unequivocally
establishes that the deceased was last seen alive in the company of the
accused. Specifically between 9.15 p.m. and 9.30 p.m., on the alleged
date of the incident, the accused and the deceased were found sitting
together in the waiting shed. The evidence of PW1 to PW3, the
independent witnesses, reveals that the deceased was subsequently found
dead inside the waiting shed at approximately 9.45 p.m. The time gap
between the last seen stage and the occurrence of the death of the
deceased is remarkably short. As per the established legal principles when
an accused is last seen with the deceased, particularly in cases of this
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nature and there is immediate proximity between the time when the
deceased and the accused were last seen together and later when the
deceased was found dead, the accused must provide a plausible
explanation regarding the events surrounding the deceased’s death or
their separation. Section 106 of the Indian Evidence Act mandates that
when any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him. Therefore, it was imperative for
the accused to provide a convincing explanation regarding the events that
transpired after the deceased was last seen alive in his company. Despite
the overwhelming circumstances, the accused failed to offer any justifiable
or convincing explanation about when he parted ways with the deceased
or how the incident occurred. In light of this, we have no hesitation in
holding that the deceased was last seen alive in the company of the
accused is a compelling circumstance in proving the guilt of the accused.
24. The evidence of PW34, the investigating officer reveals that
after taking over the investigation in this case he visited the scene of
occurrence and prepared Ext.P3 inquest report. His evidence further
shows that he seized several items from the crime scene with the help of a
Scientific Assistant, as per Ext.P16 seizure mahazar. A conjoint reading of
the evidence of PW34 and Ext.P3 inquest report reveals that he had
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recovered four black colour buttons and three red colour buttons from the
crime scene. Out of the three red colour buttons one contained red colour
stitching thread. During examination before the court, the black colour
buttons were identified by PW34 and marked as MO23. The red colour
buttons were also identified and marked as MO24 through PW34.
25. The shirt worn by the deceased, seized at the time of inquest
was marked as MO2. The MO2 shirt was identified by PW1, PW2, PW3,
and PW4, the independent witnesses, as the shirt worn by the deceased at
the time when his dead body was found. The evidence of PW32, the
scientific officer, Physics Division, FSL, Kannur reveals that she had
examined the MO2 shirt, (the shirt worn by the deceased) which is shown
as item No.5 in the FSL report (Ext.P19) and four buttons were found
missing from the said shirt. The evidence of PW32 further reveals that
when she subjected MO23 (four black colour buttons recovered from the
crime scene), which is shown as item No.6 in Ext.P19 report, it was
revealed that the buttons contained in item No.6 (MO23) could have been
detached from item No.5 (MO2) shirt. Furthermore, in Ext.P19 FSL report,
it is specifically stated that the black colour buttons and the black colour
stitching thread contained in item No.5 were similar with those buttons
found in item No.6 (MO23).
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26. The evidence of PW34, the investigating officer, further
reveals that the shirt and dhoti worn by the accused at the time of the
commission of the offence were recovered by him on the strength of a
disclosure statement given by the accused. The said shirt and dhoti were
recovered from the house of the accused as the same was taken and
produced by the accused from a covered portion of the veranda of the
accused’s house, after describing it in Ext.P6 recovery mahazar. PW14, an
independent witness cited by the prosecution to prove the recovery of the
shirt (MO16) also supported the case of the prosecution regarding the
recovery of the said shirt. During examination before Court, PW14 also
identified MO16 as the shirt taken and handed over to the Police by the
accused. He deposed that when MO16 shirt was recovered, two or three
buttons were missing from the said shirt. Notably, PW4 identified MO16 as
the shirt worn by the accused when he saw the accused immediately prior
to the incident in this case.
27. The evidence of PW32, the Scientific Officer, FSL Physics
Division reveals that out of the seven button positions found on MO16,
(the shirt worn by the accused) shown as item No.9 in Ext.P19 FSL report,
five buttons were found missing. In Ext.P19 report, it is mentioned that
two buttons found on item No.9 shirt were of different colours. According
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to PW32 on examination, it was revealed that the three red colour
buttons shown as item No.10 in Ext.P19 FSL report (MO24) could have
been detached from item No.9 (MO16), the shirt worn by the accused.
More pertinently, in Ext.P19 report, it is specifically stated that the reddish
brown colour button and the red colour stitching thread contained in item
No.9 (MO16 shirt) were found similar with those buttons contained in item
No.10 (MO24).
28. The scientific evidence that the loose buttons found at the
crime scene matched with the buttons found in the shirt worn by the
accused at the time of the commission of offence significantly strengthens
the prosecution’s case. This evidence lends substantial credibility to the
case of the prosecution that the accused was indeed present at the crime
scene. Furthermore, the scientific evidence showing that the loose black
colour buttons found at the crime scene matched with the buttons found
on the shirt recovered from the dead body of Satheesan supports the
prosecution case that a scuffle occurred between the deceased and the
accused.
29. As already stated a right leg chappal was recovered from the
crime scene by the investigating officer (PW34) at the time of preparing
the inquest report. The evidence of PW34, further shows that he had
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recovered a left leg slipper from a place located 25 meters away from the
crime scene after the arrest of the accused and as pointed out by the
accused. The said slipper was identified by PW34 and marked as MO17.
In Ext.P7 mahazar, it is specifically mentioned that the slipper was
recovered from a place that was pointed out by the accused. Moreover,
when an attestor to Ext.P7 mahazar was examined as PW15 he deposed
that he saw the accused pointing out a slipper to the police and the police
recovering the said slipper from the side of Kamballur-Kadumeni road after
preparing a mahazar. According to PW15, he is also a signatory to the
said mahazar and he identified his signature in Ext. P7 seizure mahazar.
More pertinently, in the FSL report which is marked as Ext. P33, it is
specifically mentioned that blood was detected in the single chappal which
was recovered from the crime scene (MO7) and also in the single chappal
which was recovered as pointed out by the accused (MO17), which are
shown as item Nos.2 and 4 respectively in Ext.P33 FSL report. Though in
the impugned judgment, it is mentioned that Ext.P33 report is marked
through PW34, the investigating officer, a perusal of his evidence shows
that the said document was not marked through him. However, the said
document, being a report under the hand of a scientific expert the same
will come under the realm of Section 293 of the Cr.P.C., and hence, there is
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Crl. A. No.811 of 2020 23
nothing wrong in using the same as evidence. In short, the conduct of the
accused in pointing out the place where MO17, the blood-stained chappal
that matches the single chappal found at the crime scene (MO7), was
abandoned is also relevant under Section 8 of the Indian Evidence Act,
implicating the accused in the commission of the offence.
30. As we have already discussed the compelling circumstance
that the deceased was found last seen alive in the company of the accused
is unequivocally established in this case. The time gap between the
deceased found alive in the company of the accused and later the
deceased found dead is remarkably short. The evidence of PW4 that the
deceased was last seen alive in the company of the accused is convincing
and reliable. Even then no plausible explanation has been provided by the
accused regarding the events surrounding the deceased’s death or their
separation. Therefore, the said circumstance will go a long way in proving
the accused’s guilt. Nevertheless, in the case on hand, there is sufficient
scientific evidence supporting the prosecution case. The accused’s conduct
in pointing out the blood-stained single chappal of left leg (MO17) to the
investigating officer which matches with the single chappal of right leg
found at the crime scene (MO7) also will lend some assurance to the case
of the prosecution. Additionally, the recovery of loose buttons from the
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Crl. A. No.811 of 2020 24
crime scene which is established to be similar to the remaining buttons of
the shirt found on the dead body of the deceased further strengthens the
case of the prosecution.
31. Therefore, we have no hesitation in holding that the
prosecution has fully succeeded in proving the commission of offence
punishable under 302 of the IPC by the accused. The sentence imposed
in this case also commensurate with the nature and gravity of the offence
committed.
Resultantly, we confirm the finding, conviction and sentence passed
by the learned Session Judge in S.C. No.537/2016 on the file of Sessions
Court, Kasargod, for offence punishable under Section 302 of the Indian
Penal Code and hence the appeal stands dismissed.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
DCS/ncd
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