P. Sunoj vs State Of Kerala

P.B.Suresh Kumar, J.

The sole accused in S.C.No.225 of 2012 on the files of the Additional Sessions Court-III, Thalassery who stands convicted and sentenced for the offence punishable under Section 302 of the Indian Penal Code (IPC) has preferred this appeal invoking Section 374(2) of the Code of Criminal Procedure (the Code) challenging his conviction and sentence in the said case.

The dead body of one Sajin was found in a pool of blood by about 11.30 p.m. on 28.06.2010 in the backyard of the structure called 'Kazhakappura' attached to a sacred grove near his residence known as Nedumkottukavu. Sajin left his house on that day by about 7.00 p.m. and as he had not returned, his friends and relatives went in search of him and it was while so, his dead body was found within the precincts of Nedumkottukavu. The matter was informed to the police, and on the basis of the information furnished by the paternal uncle of Sajin, a case was registered as Crime No.884 of 2010 by Thalassery Police. The investigation of the said case was commenced by the then Circle Inspector of Police, Thalassery and concluded by his successor by filing the final report against the accused alleging commission of the offence punishable under Section 302 IPC. The case of the prosecution as set out in the final report is that on 28.06.2010 at about 8.30 p.m., at the backyard of the Kazhakappura, on account of personal enmity, the accused caused the death of the victim by striking on his head and other parts of his body with a crowbar and thereby committed the offence.

As the accused denied the charge framed and read over to him by the Court of Session when committed for trial, the prosecution examined 32 witnesses as PWs 1 to 32 and proved through them Exts.P1 to P25 documents. MOs 1 to 17 are the material objects identified by the witnesses. Exts.D1 to D6 are the documents proved by the accused through the prosecution witnesses. As the Court of Session did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence and adduce evidence in support thereof. The accused did not, however, adduce any evidence. The Court of Session, thereupon, on an appraisal of the materials on record, found the accused guilty of the offence alleged and consequently, convicted him and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,00,000/-. As noted, the accused is aggrieved by his conviction and sentence in the case.

Heard the learned counsel for the accused as also the learned Public Prosecutor.

There is no eye witness to the occurrence. The prosecution has relied on various circumstances to prove the guilt of the accused. As the arguments advanced by the learned counsel for the accused relate to the acceptability of the evidence let in by the prosecution to prove the circumstances and the sufficiency of the circumstances established to prove the guilt of the accused, it is only appropriate that we outline the evidence let in by the prosecution before referring to the arguments advanced by the learned counsel for the accused.

PW1 is the paternal uncle of the deceased. It is PW1 who lodged Ext.P1 First Information Statement. PW1 deposed that at about 8.45 p.m. on 28.06.2010, he received a telephone call from the mother of Sajin informing him that Sajin is not picking up her calls. It was deposed by PW1 that there was no response from Sajin on his calls either and he, therefore, proceeded to the house of Sajin. By the time PW1 reached the house of Sajin, a friend of Sajin named Prajith had also arrived there and while they were making efforts to trace Sajin, somebody told them that a screaming sound was heard from the backyard of the Kazhakappura, and when they proceeded to that place, they found PW2, a friend of both Sajin and the accused, the accused, and another friend of Sajin there. It was deposed by PW1 that by about 11.30 p.m. when he went behind Kazhakappura along with others, he found the body of Sajin with bleeding injuries. The evidence tendered by PW1 was corroborated by the evidence tendered by PW10, the mother of the deceased.

The evidence tendered by PW2 was that on the date of occurrence, the deceased was with him from about 6.30 p.m. onwards; that by about 7.00 p.m. the accused also joined them; that they were chatting on the stage of Nedumkottukavu and that PW2 left the company of the accused and the deceased about 30-45 minutes thereafter. It was also the version of PW2 that by about 11.20 p.m., Prajith came there and informed him that Sajin is missing and upon receiving the said information, both of them proceeded to Nedumkottukavu and from there, they informed the matter to the accused and the accused reached at that place within no time. It was also the version of PW2 that even though they dispersed from Nedumkottukavu after sometime, when he reached home, by about 11.20 p.m., PW4, a friend of PW2 informed him that PW3, the mother of PW4 heard a screaming sound from the surroundings of Kazhakappura. It was also the version of PW2 that he then proceeded along with the accused to the backyard of Kazhakappura and found the dead body of Sajin. It was also the version of PW2 that by the time they reached the scene, PW1 and Prajith also came to the scene.

PW3 is a person residing close to the Kazhakappura outside the precincts of Nedumkottukavu. She deposed that she heard a screaming sound at about 8.30 p.m. on the date of occurrence from the backyard of Kazhakappura and also a sound of some objects falling into the pond near Kazhakappura. PW3 also deposed that she contacted PW14, the person in charge of Kazhakappura over telephone and informed him about the sounds and it is she who informed about the same to PW4. PW4 and PW14 corroborated the evidence tendered by PW3. PW14 also deposed that he did not take the said information seriously, as such sounds of people who drink liquor there are usual.

PW5 is the witness to Ext.P2 inquest report. PW5 deposed that while preparing the inquest report, the investigating officer seized MO1 arecanut splinter. PW8 is a lady running a grocery shop near Nedumkottukavu. PW8 deposed that on 28.06.2010, at about 7.00 p.m., the accused came to the shop along with the deceased as also PW2 and purchased a packet of cigarettes and went towards Nedumkottukavu. PW9 who runs a tea shop at Vadiyilpeedika deposed that on the date of the occurrence, the father of the accused kept a packet in his tea shop and at about 8.15 p.m., the accused along with the deceased came to his shop to take the packet kept by the father of the accused.

PW7  is  also  a  friend  of  the  accused.  PW7 deposed that he along with his friends used to assemble in the work site of a building near 'Mulloor Mukku' and on 28.06.2010, when they were sitting there, by about 9.15 p.m., the accused came there and as he expressed desire to have drinks, the accused along with his brother Saneesh went to the house of one Ravi to secure liquor after which they had liquor together and all of them dispersed from that place by about 10.15 p.m. PW13 is a lady residing on the northern side of Nedumkottukavu. PW13 deposed that by about 8.40 p.m. on the date of occurrence, while she was standing in the sit out of her house, she saw the accused coming from Nedumkottukavu in a disturbed mood.

PW11 is also a friend of both the accused and the deceased. PW11 was examined by the prosecution to prove the motive of the accused. PW11 deposed that during April, 2009, on the festival day of Nedumkottukavu, while he was going to Nedumkottukavu along with PW12, a cousin brother of the deceased, the accused came there and beat on the face of PW12 stating that PW12 used to tell others that the accused always carries weapons with him. PW11 deposed that he intervened and dissuaded the accused from assaulting PW12 further. It was also deposed by PW11 that later that night, when the deceased and his friends including the accused assembled in a building near the residence of the accused, PW11 informed the deceased about the occurrence and the deceased then warned the accused that he shall not assault his family members. It was deposed by PW11 that on getting provoked by the said statement made by the deceased, the accused caught hold of the collar of the shirt of the deceased and pressed a lit cigarette on his chest. PW11 deposed that he dissuaded both the accused and the deceased from aggravating the situation further and the deceased and his friends including the accused dispersed from that place after sometime. PW11 also deposed that the accused and the deceased were not on talking terms thereafter. PW11 also deposed that the accused used to tell him thereafter that he wants to take revenge on the deceased. PW12 corroborated the evidence tendered by PW11.

PW16 and PW17 are attestors to Ext.P4 mahazar prepared by the investigating officer while effecting seizure of MO7 crowbar from the well in the property of PW25. PW18 is an attestor to Ext.P5 mahazar prepared by the investigating officer while effecting seizure of MO8 single dhoti from the house of the accused.

PW19 is the doctor who conducted the autopsy on the body of the deceased. Ext.P6 is the autopsy certificate issued by PW19. Ante-mortem injuries 1 to 9 deposed to have been noted by PW19 on the body of the deceased at the time of autopsy are the following:

“1. Lacerated wound 9x1.5cm obliquely placed on the right side of top of head, the lower outer end being 8cm above the right ear. Underneath, there was a depressed comminuted fracture in the right parietal bone (6x3x1cm).

Lacerated wound 4.5x1cm, horizontal, on the left side of head, 7cm above the ear.

Lacerated wound 4x1.5cm, horizontal, just behind the upper end of left ear.

Lacerated wound 3x0.5cm involving the pinna of left ear (from the middle of outer border, which was brocken into two, towards the ear lobule).

Underneath injuries 2 to 4. the temporal bone was fractured and fragmented. A fissured fracture was seen running from the fractured site to the sagittal suture.

Lacerated wound 4x1cm, obliquely placed on the left side of back of head, the lower inner end being at the occiput. A horizontal fissured fracture was seen extending side to side, just above the occiput.

Lacerated wound 0.5x0.3cm on the outer end of left eyebrow.

Lacerated wound 0.6x0.3cm on the left end of left upper eyelid.

Lacerated wound 2.3x0.7x1cm, oblique on the left side of face, 1cm below injury No.6.

Lacerated wound 0.5x0.2cm on the cheek, 2.5cm below left eye.”

PW19 opined in his evidence that the victim died of blunt violence sustained to the head. PW19 also deposed that ante-mortem injuries 1 to 5 could be caused by MO7 crowbar and that the ante-mortem injuries 1 to 9 combined together are sufficient to cause death in the ordinary course of nature. In cross-examination, PW19 deposed that injuries 10 to 12 could not have been caused using MO7 and the possibility of the assailant using two types of weapons cannot be ruled out. It was also deposed by PW19 in cross-examination that the possibility of injury No.13 being caused using a punching block also cannot be ruled out.

PW20, the doctor who collected the hair samples of the accused for forensic examination, deposed that she collected the same on 07.07.2010 and handed over the same to the police. PW32 is the police officer who conducted the investigation in the case and PW31, the successor in office of PW32 has only submitted the final report, after completing the remaining formalities. PW32 deposed that at the time of holding inquest, he collected the hair samples found on the clothes worn by the deceased and also from the blood stains found on the walls of the bathroom near the scene of occurrence, for forensic examination. PW32 also deposed that the accused was arrested at 4.35 p.m. on the following day and during the interrogation thereafter, the accused informed him that he threw a crowbar in a well and that he can hand over the same, if he is taken to that place. Similarly, PW32 deposed that during interrogation, the accused informed him that he kept a single dhoti in his house and that if he is taken to his house, he can hand over the same also. PW32 deposed that based on the said information, the accused was taken to the well in the property of PW25 near Nedumkottukavu as guided by him and MO7 crowbar was lifted from the said well using a magnet. As already noticed, Ext.P4 is the mahazar prepared by the investigating officer in this regard and Ext.P4(a) is the disclosure statement. Similarly, it was deposed by PW32 that as informed by the accused, he was taken to his house and from there, he handed over MO8 single dhoti kept in a clothesline there and the same was seized as per Ext.P5 mahazar. Ext.P5(a) is the disclosure statement which led to the discovery. PW32 also deposed that prior to the production of the accused before the Jurisdictional Magistrate, MO9 shirt worn by him was also seized as per Ext.P15 mahazar. Ext.P20 series are the property lists prepared by the investigating officer while forwarding the seized objects to the Jurisdictional Magistrate and Ext.P21 is the forwarding note prepared by him for forwarding the objects for forensic examination.

Ext.P22 is the report received from the Serology Division of the Forensic Science Laboratory. Item No.13 in Ext.P22 report is MO1 arecanut splinter seized from the scene of occurrence at the time of inquest, item No.14 therein is MO8 single dhoti discovered and seized from the house of the accused based on the information furnished by the accused, item No.15 therein is MO9 shirt seized from the accused after his arrest and item No.16 therein is MO7 crowbar discovered and seized from the well in the property of PW25 based on the information furnished by the accused. In Ext.P22, it is reported that the blood found on item No.13 is of human origin. It is also reported in Ext.P22 that though blood was found on items 14 to 16, the same was insufficient to determine its origin. Ext.P23 is the report received from the Biology Division of the Forensic Science Laboratory. Even though the learned counsel for the accused raised very many arguments on the assumption that the materials brought out in the said report in respect of the hairs collected from the body of the deceased and the body of the accused is incriminatory, on a close reading of the same, we found that nothing was brought out in the said report against the accused inasmuch as the results made mention of therein is the result of comparison of the hairs collected at the time of autopsy and inquest.

Based on the aforesaid evidence, the Court of Session found that the prosecution has established beyond reasonable doubt the following circumstances:

(i) That the accused had the motive sufficient to cause the death of the victim, even though he pretended outside that he is a friend of the deceased and was moving along with him.

(ii) That the accused was moving with the deceased till 8.15 p.m. on the date of occurrence and the deceased was not seen alive by anybody thereafter.

(iii) That the occurrence took place by about 8.30 p.m.

(iv) That the accused was seen immediately after the occurrence by about 8.40 p.m. in the vicinity of Nedungottkavu in a disturbed mood.

(v) That  MO7  crowbar  with  which  ante-mortem injury Nos.1 to 9 found on the body of the deceased could be caused was discovered and seized based on the information furnished by the accused.

(vi) That the accused has not offered any explanation as to his source of information about the concealment of MO7 crowbar in the well in the property of PW25.

(vii) That the accused has not offered any explanation for the presence of blood stains on MO7 crowbar discovered and seized based on the information furnished by him.

(viii) That the accused has not offered any explanation for the presence of blood stains on MO8 single dhoti discovered and seized from his house based on the information furnished by him.

The view taken by the Court of Session in the impugned judgment is that the aforesaid circumstances would establish the guilt of the accused beyond reasonable doubt.

Now let us consider the arguments advanced by the learned counsel for the accused. The first and foremost contention is that the materials on record would demonstrate the involvement of more than one person and the use of more than one weapon for the commission of the crime. This contention was attempted to be substantiated by the learned counsel placing reliance on Ext.P6 autopsy certificate and the evidence tendered by PW19, the doctor who conducted the autopsy. Injuries 10 to 13 deposed to have been noted by PW19 at the time of autopsy read thus:

“10. Lacerated wound 1.5x1cm at the left end of upper lip, on the inner aspect.

Lacerated wound 2x0.5cm at the left end of lower lip; surrounding area was contused.

Two small lacerations (1x1cm and 0.5x0.5cm respectively) nearby on the inner aspect of lower lip near its left end. The first one was through and through, and the exit wound was 1x0.5cm, on the outer aspect, just below the lip.

Corresponding to injuries 10-12, the incisor teeth in the upper left quadrant were missing with infiltration of blood in the sockets. Canine tooth and first premolar tooth were dislocated. A segment of the upper jaw bone containing the above teeth was found fractured and depressed.

Four small abrasions (0.2cm each) over the left side of front of chest (rectangular in shape, if joined together) the inner ends being 2cm below the inner end of collar bone, the horizontal limb of the rectangle measured 3cms and the vertical limb measured 2cms. Underneath, the chest muscles were contused over an area 7x5cm; intercostal muscles were ruptured (6cms) in the second intercostal space. There was a handful of blood in the left chest cavity.”

True, in cross-examination, PW19 deposed that injuries 10 to 12 could not have been caused using MO7 crowbar. It was also deposed by PW19 in cross-examination that the said injuries must have been caused by a heavy blunt weapon with a short striking surface, like a stone. It was also deposed by PW19 in cross-examination that there was a possibility of injury No.13 being caused by a punching block of that measurement. It was in the light of the said evidence that it was argued by the learned counsel that the involvement of more than one person and the use of more than one weapon have been established in the case. The argument is that if that be the situation, it has to be inferred that the occurrence is not as alleged by the prosecution. We have examined the evidence tendered by PW19 meticulously. We are unable to agree with the argument of the learned counsel for the accused. In re-examination, PW19 clarified that by hitting the face of the person towards the edge of a wall like window space, injuries 10 to 12 can be caused. In further cross-examination, it was also clarified by PW19 that injuries 10 to 12 can be caused by an accidental and forceful fall on the ground in such a way as to come into contact with the lips and mouth on a projected object on the ground. Needless to say, the argument that the use of another weapon is very much required to cause injuries 10 to 12 is only to be rejected. Similarly, merely for the reason that a weapon like a stone, if any, used to cause injury No.13 has not been recovered by the investigating agency, the same is not a reason to hold that the occurrence was not as alleged by the prosecution. We take this view also for the reason that the prosecution case is one framed on an inference made from the evidence collected by the investigating agency. Since the prosecution allegation is that the accused caused the death of the victim by striking on his head and other parts of his body with a crowbar, what is to be seen by the court is whether such an occurrence had taken place and if the court finds based on evidence that such an occurrence had taken place, merely for the reason that one among the several injuries sustained on the body of the deceased in such an occurrence has not been explained, the case of the prosecution cannot be rejected in toto.

Another argument advanced by the learned counsel for the accused to contend that the occurrence is not as alleged by the prosecution is the presence of human blood stains on MO1 arecanut splinter seized from the scene of occurrence. According to the learned counsel, there was no investigation as to how human blood stains appeared on MO1 arecanut splinter. Similarly, it was also argued by the learned counsel that PW3, the person who heard the sounds of screaming at about 8.30 p.m. from the place of occurrence as also of some objects falling into the pond near the scene, there was neither any investigation on that aspect nor any explanation from the prosecution as to the objects that fell into the pond as spoken to by PW3. We are not impressed by these arguments of the learned counsel as well. It has come out from the evidence of PW3 itself that such sounds were heard by her from the place of occurrence when coconuts from the nearby coconut trees fall into the pond. Similarly, as noted, MO1 is an arecanut splinter seized from the scene of occurrence itself at the time when the dead body was found there in a pool of blood. No explanation is therefore required for the presence of blood on an object seized from the scene of occurrence, especially when the nature of occurrence is as alleged by the prosecution.

The application of the last seen together theory projected by the prosecution has been seriously attacked by the learned counsel for the accused pointing out that PW2 was one of the prime suspects of the crime who was taken into custody by the police on the night of the date of occurrence itself and it is based on the evidence given by such a person and PW9 that the Court of Session came to the conclusion that the deceased was last seen together with the accused. As far as PW9 is concerned, it was argued by the learned counsel for the accused that PW9 is a person who runs a tea shop at Vadiyilpeedika and the evidence tendered by the said person was too artificial. It was pointed out by the learned counsel that what was spoken to by PW9 was that the father of the accused left a packet in the shop when he visited the shop earlier in the course of the day and it was when the accused came there to collect the said packet at about 8.15 p.m., the deceased was also with him. It was argued by the learned counsel that the prosecution has not examined the father of the accused to prove that he left any packet in the shop of PW9 so as to corroborate the evidence tendered by PW9. It was also argued by the learned counsel that being the father of the accused himself, he might have turned hostile to the prosecution, if examined, but nevertheless, it was obligatory for the prosecution to examine the father of the accused also as a witness in the case when the prosecution places reliance on the evidence of PW9 to prove the last seen together theory. Yet another argument advanced by the learned counsel questioning the reliability of the evidence tendered by PW9 is that he is not a person who was questioned by the police soon after the occurrence. Instead, it was pointed out that he was questioned by the police only about a week after the occurrence. We are not impressed by these arguments as well. The presence of the deceased in the company of PW2 was spoken to by several witnesses and it was therefore obligatory for the prosecution to examine PW2 as a witness and merely for the reason that he was a suspect, it cannot be contended that the evidence tendered by him is unacceptable, especially when it was found on investigation that he is innocent. Similar is the situation as regards the evidence tendered by PW9 as well. We are unable to accept the argument advanced by the learned counsel for the accused that merely for the reason that the father of the accused was not examined in the proceedings, the evidence tendered by PW9 cannot be relied on, on the facts of the present case. No doubt, at times, the time at which a witness was questioned by the police assumes relevance in the matter of considering the acceptability of evidence tendered by such a witness in court, but a decision on such questions is always taken only on the facts and circumstances of each case. On an appraisal of the totality of the facts and circumstances of this case, we are of view that the delay in questioning PW9 by the police does not deter us from accepting the evidence tendered by PW9.

Another argument forcefully pressed into service by the learned counsel for the accused is concerning the motive attributed by the prosecution of the accused to cause the death of the victim. According to the learned counsel, the motive attributed cannot be considered as a motive at all, and even if it is construed as a motive, the same is insignificant to cause a grave crime like the instant one. The learned counsel elaborated the said submission pointing out that the evidence tendered by PWs 11 and 12 in this regard is that about a year before the occurrence, the accused had assaulted PW12, the cousin brother of the deceased and when the deceased confronted the accused about the said occurrence, the accused attempted to assault the deceased as well. The learned counsel argued that the evidence tendered by PWs 11 and 12 in this regard is contrary to the evidence tendered by the other prosecution witnesses that the accused and deceased were close friends and were moving together as friends all throughout. It was also argued by the learned counsel that even if the evidence tendered by PWs 11 and 12 are accepted as true, the same cannot be considered as a motive for the accused to cause the death of the victim. There is force in the arguments advanced by the learned counsel in this regard. Motive in a case on circumstantial evidence plays a very important role, especially when the evidence by and large shows close friendship between the accused and the deceased. The motive alleged by the prosecution, even according to us, in a case of this nature, cannot be regarded as the real motive for the occurrence and we concur with the various arguments advanced by the learned counsel in this regard.

Another argument advanced by the learned counsel is that even though the deceased and his close friends as also relatives had mobile phones, the prosecution has not placed on record the call details to prove the telephonic communication between them on the date of the occurrence. According to the learned counsel, the call details from their mobile phones would have been the best evidence to prove the fact that the accused was moving in the company of the deceased prior to and after the occurrence and it was, therefore, obligatory for the prosecution to make available the said evidence, and failure of the same is fatal to their case. We find force in the aforesaid argument also. This being a case on circumstantial evidence, we are of the considered view that the call details of the mobile phones used by the deceased and his close friends and relatives prior to and after the occurrence would have disclosed a true picture of their movements.

Yet another argument advanced by the learned counsel is regarding the discovery and seizure of MO7 crowbar. According to the learned counsel, the very presence of PW16, the Deputy Tahsildar attached to the Taluk Office, Thalassery to witness the discovery based on the information furnished by the accused, makes the discovery suspicious. It is all the more so since PW16 is shown as a witness only to Ext.P4 mahazar and not a witness to Ext.P5 mahazar prepared a few hours earlier in connection with the seizure of MO8 single dhoti. True, unlike the provisions contained in the Narcotic Drugs and Psychotropic Substances Act, 1985, it is not mandatory to have a person like PW16 to witness the recovery of an object in a case of this nature. But merely for the reason that such a person witnessed the recovery, it cannot be contended that the recovery is vitiated in any manner. The argument advanced by the learned counsel in this regard is liable to be rejected and we do so.

It was also argued by the learned counsel that even assuming that there has been discovery and seizure of a crowbar based on the information furnished by the accused, there was nothing to connect the discovered crowbar with the crime. The learned counsel elaborated the said submission pointing out that though it is stated in Ext.P22 report of the Serology Division of the Forensic Science Laboratory that the presence of blood stains was noticed on MO7 crowbar, the origin of the blood found has not been stated in the report. Identical arguments have been advanced by the learned counsel for the accused as regards the presence of blood stains on MO8 single dhoti and MO9 shirt also. No doubt, merely for the reason that the origin of the blood found on the objects discovered and seized based on the information furnished by the accused could not be detected by the Forensic Science Laboratory, the evidence tendered by the prosecution in this regard is not liable to be rejected. But, at the same time, the question whether the said fact should be regarded as an incriminating evidence against the accused is one to be decided on the totality of the facts and circumstances of the case.

Having seen the evidence let in by the prosecution and considered the arguments advanced by the learned counsel for the accused in the manner aforesaid, in our opinion, the following are the only incriminating circumstances established by the prosecution;

(i) That the accused was moving with the deceased till 8.15 p.m. in and around the locality of Nedumkottukavu on the date of occurrence and the deceased was not seen alive by anybody thereafter.

(ii) That the accused was seen by about 8.40 p.m. in the vicinity of Nedumkottukavu.

(iii) That MO7 crowbar with which ante-mortem injury Nos.1 to 9 found on the body of the deceased could be caused was discovered and seized based on the information furnished by the accused.

(iv) That the accused has not offered any explanation as to his source of information about the concealment of MO7 crowbar in the well in the property of PW25.

(v) That the accused has not offered any explanation for the presence of blood stains on MO7 crowbar discovered and seized based on the information furnished by him.

(vi) That  the  accused  has  not  offered  any explanation for the presence of blood stains on MO8 single dhoti discovered and seized based on the information furnished by him.

(vii) That the accused has not offered any explanation for the presence of blood stains on MO9 shirt seized from him after his arrest.

It is now trite that the principles to be applied for deciding the guilt of the accused in a case of circumstantial evidence are (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established, (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as to not 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. As pointed out by the learned counsel for the accused, the evidence tendered by the witnesses examined on the side of the prosecution would establish beyond reasonable doubt that the accused is a close friend of the deceased, although there was an instance of altercation between them on a previous occasion. The said altercation is one that occurred almost a year prior to the occurrence. The fact that they were moving as close friends can also be inferred from the evidence tendered by PW2 that a few hours prior to the occurrence they were in the company of each other chatting about World Cup matches. That apart, it has come out from the evidence of PW2 that when he went in search of the deceased, the accused also joined him for the search and even though the accused left the company of PW2 after some time, he rejoined PW2 forthwith when the latter rushed to the precincts of Nedumkottukavu to search for the deceased near Kazhakappura. Nobody observed any difference in the facial expressions of the accused on those occasions and the same is not expected in the common course of natural events from a person who caused the death of another, if at all the accused is the culprit. True, motive to cause the death of a person is one which exists only in the mind of one who intends to cause death and it is not always possible to find out the same. At the same time, inasmuch as the prosecution has attributed a motive and inasmuch as we found on the facts of this case that the motive attributed against the accused is not the real motive, as it is trivial for such a grave crime, especially when the deceased is none other than one of the close friends of the accused, the failure on the part of the prosecution to establish the motive needs to be certainly taken note of, in the matter of arriving at a conclusion as to whether it is the accused who caused the death of the victim. If the motive attributed is not the real motive, then what is the motive for the accused to cause the death of the victim? The motive remains a mystery. Be that as it may, as already noticed, the accused was in the company of the deceased around 8:15 p.m., a few minutes prior to the occurrence. At that time, both the accused and deceased were in a jovial mood. If the accused is the real culprit, something must have transpired between them within the span of fifteen minutes after they met PW9 in his tea shop, and before the occurrence. If the accused is the real culprit, there is absolutely no clue as to what took place within the said time span for the accused to cause this grave crime. That apart, as noticed, this being a case on circumstantial evidence, the investigating agency should have placed on record, the call details of the phones of the deceased, the accused and their close friends as also relatives so as to corroborate the oral testimonies of the witnesses, and the same has not been done. The circumstances established in the case as referred to above need to be considered in the above background. True, there is no satisfactory explanation from the accused as to his source of information about the concealment of MO7 crowbar in the well in the property of PW25, as to the presence of blood stains on MO7 crowbar, MO8 single dhoti and MO9 shirt. No doubt, the aforesaid circumstances would create a serious suspicion against the accused, but suspicion, howsoever strong, cannot be a substitute for proof of the guilt of the accused beyond reasonable doubt. Merely on account of the presence of the accused in the surroundings of Nedumkottukavu, and merely for the reason that he did not offer any explanation for circumstances (iv) to (vii), we are unable to hold that it is the accused who caused the death of the victim. As far as the discovery of MO7 crow bar is concerned, there is nothing on record which would conclusively establish that MO7 was the weapon used by the assailant to inflict injury on the deceased. What is spoken to by PW19 is only a possibility. True, there were blood stains on MO7, but there is nothing on record to indicate that the blood stains were of human origin. In the absence of the origin of the blood stains, there are various other possibilities for the presence of blood on MO7. Similarly, there is nothing on record to indicate that the blood stains found on MO8 and MO9 clothes of the accused was of human origin. As in the case of the blood stains found on MO7, in the absence of the origin of the blood, there are various other possibilities for the presence of blood stains on MO8 and MO9 as well. Apart from the above, the only circumstance that is left is the presence of the accused in the surroundings of Nedumkottukavu. As noticed, the requirement of law is that the facts 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 and they should exclude every possible hypothesis except the one to be proved and there must be a chain of evidence so complete as to not 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. The facts and circumstances so established in the case on hand, according to us, do not satisfy the above requirements. We take this view also for the reason that in the nature of the occurrence alleged by the prosecution, there is every possibility for the accused to have sustained some injuries, but no injuries whatsoever were noted on his body when he was examined by PW20. In the circumstances, we are of the view that the accused is entitled to the benefit of doubt.

In the result, the criminal appeal is allowed, the impugned judgment is set aside and the appellant is acquitted. He shall be set at liberty forthwith from the concerned prison, if his continued detention is not required in connection with any other case. Registry shall communicate this judgment forthwith to the concerned prison, where the appellant is undergoing incarceration.