Shaji @ Babu @ Japan Shaji vs State Of Kerala

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K. Vinod Chandran, J.       Â",,,,,

Apathy on all fronts conspires to derail the investigation and prosecution when the victim is unattached, unconnected and unaligned. An indigent",,,,,

spinster was smothered to death, tied in a sack and thrown into the backwaters. An equally unattached, unconnected and unaligned person was",,,,,

booked for the crime and thrown behind bars as a result of an indifferent investigation and inefficient prosecution. No ripples caused, no publicity, no",,,,,

public trial, no twilight vigil and no protest at all. A poor soul is choked to death and another sent to prison to assuage whatever feelings of",,,,,

whomsoever.,,,,,

2.  The case set up by the prosecution is entirely based on circumstantial evidence. A corpse was found floating in the backwaters, which was",,,,,

identified and investigation commenced. The prosecution case was that the deceased lady was living with the accused in a rented room in one OK,,,,,

Hall Complex and that on 13.11.2014, at around 7.45 p.m, they had a quarrel concerning the proceeds of the sale of lotteries, which business they",,,,,

were engaged in together. The deceased is said to have slapped the accused on the face and in a rage he smothered her. The corpse was then,,,,,

bundled into a sack, tied with a cloth (torn from a dhoti), and thrown into the backwaters. PW1, a Security Guard, gave the FIS (Ext.P1) on seeing the",,,,,

corpse floating. The body, retrieved with the help of PW2 was, partly decomposed, wearing earrings (MO2), clad in a two-piece green chudidar",,,,,

(MO3 & 4) and its hands and feet were tied with a shawl (MO1). The sack was marked as MO5.,,,,,

3.  Investigation was conducted and a charge-sheet laid against the accused under S.302 of the Indian Penal Code. Before the trial Court, PWs.1",,,,,

to 38 were examined and Exts.P1 to P47 were marked. Material objects were marked as MO1 to MO27. The accused was convicted and sentenced,,,,,

to undergo imprisonment for life and pay a fine of Rs.1 lakh, with a default sentence of rigorous imprisonment for six months.",,,,,

4.  Sri. P.K. Varghese, appearing for the appellant-accused, contended that there was absolutely no evidence to convict the accused under S.302",,,,,

and this is a classic case, where there has been a travesty of justice. It is pointed out that none of the witnesses identified the accused in Court, as is",,,,,

required under the law. There is not even one circumstance connecting the accused with the crime, leave alone a chain of circumstances with",,,,,

unbroken links. The scientific evidence does not provide any link to the accused as claimed, even if the recovery is proved. The prosecution has not",,,,,

produced or marked the property list, by which MO27, the cloth piece used to tie the sack with the corpse and MO20, the dhoti were produced before",,,,,

Court. PW4, though was close with the deceased, had absolutely no prior acquaintance with the accused. There is nothing to show that the accused",,,,,

and deceased were living together or at least seen together just before the time of death, as has come out in medical evidence. There is no valid proof",,,,,

as to the accused having taken out a room on rent and there is far less proof as to both the accused and deceased staying in that room. The,,,,,

Investigating Officer [I.O.] was not confronted with many of the material objects by the prosecution and even when the seizure mahazars were,,,,,

proved, the exact date of seizure has not been disclosed. The call details produced by the prosecution in evidence do not connect the accused,",,,,,

deceased and PW4. The trial Court had misdirected itself completely and has relied on very sketchy evidence to convict the accused and sentence,,,,,

him to life imprisonment. The so-called extrajudicial confession cannot at all be relied on.,,,,,

5.  Sri.S.U. Nazar, learned Senior Public Prosecutor, on behalf of the State, argues that there are 19 circumstances listed out by the trial Court,",,,,,

which clearly proves the death having been caused by the accused and that too, by smothering. The learned PP relies on [AIR 1984 SC 1622 (Sarad",,,,,

Birdhi Chand Sarda v. State of Maharashtra)] ,[1973 2 SCC 793 (Shivaji Sahebrao Bobade v. State of Maharashtra)], [AIR 2009 SC 2364 (Gamparai",,,,,

Hrudayaraju v. State of Andhra Pradesh)] and [AIR 1952 SC 343 (Hanuman Govind Nargundkar v. State of Madhya Pradesh)].,,,,,

6.  On the identity of the deceased and as to how the death was caused, there is no dispute for either side. The deceased was identified primarily",,,,,

by her friend, PW4, who came forward on seeing the report in a Newspaper about an unidentified corpse, which was wearing a 'palakka' earring.",,,,,

PW4 identified MO3 earrings as one purchased from Lakshmi Jewellery at Paravur. PW4 also identified the body from the nail polish on the feet;,,,,,

which we do not rely on. PW11 is the Manager of Lakshmi Jewellery, who deposed that the deceased had joined a scheme having a duration of 18",,,,,

months for the purchase of gold. Ext.P8 is the application form, which was seized as per Ext.P9 mahazar and Ext.P8 also contained a copy of the",,,,,

Ration Card, in which the name of the deceased is also shown. PW11 identified MO3 earrings and specifically spoke about the hallmark on the",,,,,

earring, which identifies it as one purchased from his jewellery. Though there is a discrepancy concerning the description of the mark as stated to the",,,,,

Police; on which a contradiction was marked as Ext.P1, the trial Court rightly found after looking at the object itself that the error was clerical and",,,,,

occurred while taking down the statement.,,,,,

7.  In addition to the above evidence, the fingerprint of the dead body was compared with the thumb impression found in Ext.P5 Deed, the original",,,,,

of which was seized from the possession of PW35, the brother of the deceased. Ext.P34 report of the fingerprint expert proved by PW38, I.O, opines",,,,,

that the 'left thumb impression of the unidentified dead-body (marked as 'Q1') is identical with the finger impression taken from the rear side of,,,,,

Original Deed No.4063 of 2003 of SRO, Chavara, (marked as 'S1'), found against the name of the deceased since they possess identical ridge",,,,,

characteristics in their nature and relative positions'. The blood sample of PW35, brother of the deceased, was taken and the DNA extracts were",,,,,

compared with that taken from the sternum bone of the deceased. The DNA Analysis Report marked as Ext.P46 confirmed the DNA profile of the,,,,,

sternum bone to be of female origin and found the biological relationship of siblings existing between the sources from which such extracts were,,,,,

taken. The identity hence has been proved without any room for doubt.,,,,,

8.  The post-mortem examination was carried out by PW36 and the report was marked as Ext.P30. There were three injuries noticed, which",,,,,

were abrasions over the right side of the chin at its lower end, another parallel to that injury and the third on the under aspect of the right side of chin",,,,,

with its upper end outer to the midline at the lower jaw margin. The body was found to be decomposed and the opinion as to death was reserved,,,,,

pending the chemical examiner's report; which was marked as Ext.P32. Based on both these reports, it was opined that death was due to drowning",,,,,

and the possibility of attempted smothering cannot be ruled out, as seen from Ext.P31 post-mortem Certificate. The post-mortem findings that the",,,,,

death was caused by drowning, the possibility of smothering as also the fact that the corpse had its hands and feet tied and was bundled into a sack",,,,,

unequivocally establish homicide and rules out suicide. Now the question is as to who was responsible and whether the evidence is sufficient to,,,,,

connect the accused with the crime and establish the guilt unerringly on him with a chain of circumstances.,,,,,

9.  The relationship between the accused and the deceased is first spoken of by PW4. PW4 is a close acquaintance of the deceased and they,,,,,

maintained contact. She speaks of the deceased having been employed with a home nursing firm and then commenced the sale of lotteries. She also,,,,,

says that the deceased had been residing with one Shaji, a native of Kayamkulam. To start the lottery business, the deceased had taken a loan from",,,,,

PW4, which was promised to be repaid on 14th November 2014. On 13th November, the deceased had called PW4 to confirm repayment on the next",,,,,

day. Later, one Shaji had called her, from the same phone and told her about unnecessary ruckus created by the deceased. It is also stated that Shaji",,,,,

said he was beaten on the head by the deceased and asked her whether PW4 could intervene to separate them. Shaji, according to PW4, also said",,,,,

that even if the deceased is killed and thrown into the backwaters, there will be none to ask after her. It is to prove this conversation between PW4",,,,,

and the accused that the prosecution produced call details.,,,,,

10.  The call details were produced by PW28. Exts.P21 & P22 are application forms for two mobile connections, one taken out in the name of",,,,,

Thankamma and the other in the name of Shaji. The number '8547556569' belongs to Thankamma and the telephone number '9447957862' belongs to,,,,,

Shaji, the accused; the service provider of both is BSNL. PW28 produced the call details of subscriber number '8547556569' which was marked as",,,,,

Ext.P20. Ext.P24 is the call details of '9447957862'. Ext.P33 is the Election ID Card of Thankamma, who has been examined as PW37, who deposed",,,,,

that she took the number for the accused. PW28 says that from the first number, on 13.11.2014 there were nine outgoing calls to 9947257885; the",,,,,

subscriber of which is not traced out. PW4 does not reveal her mobile phone number in her deposition, nor does the prosecution produce any proof.",,,,,

The evidence of PW28 also indicates that both the aforesaid numbers were in the Kodungallur tower area and moved to Muvattupuzha, Kuravilangad,",,,,,

Ettumanoor, Kattappana. Hence, the evidence is that the two numbers one in the name of Thankamma and the other in the name of the accused,",,,,,

were with the very same person and the prosecution case is that both the aforesaid numbers were used by the accused.,,,,,

11.  Pertinently there is no substantiation of the testimony of PW4 about the telephone call made by the deceased or the accused to her. The,,,,,

prosecution specifically asked PW4 about the number of the deceased and the accused, to which she feigned ignorance in the chief examination. But,",,,,,

in re-examination PW4 says that the number 8547556569 was that of the deceased; which is in the name of Thankamma. There was not even a query,,,,,

made as to the mobile number of PW4 and we fail to understand how the call details of the numbers of the accused alone, could establish a contact",,,,,

between the accused or the deceased with PW4. As is alertly pointed out by the learned Counsel for the accused, Ext.P8 produced in proof of identity",,,,,

of the deceased, by the prosecution, indicates clearly the address and phone number of the deceased; which is not that stated by PW4. When the",,,,,

death occurred in November 2014, the said application made by the deceased was in June 2014. No inquiry has been made either at the residential",,,,,

address of the deceased shown in Ext.P8 application form or the mobile number indicated therein. PW4, who was made nominee in Ext.P8",,,,,

application, as a friend and who helped her to join the gold scheme was also not asked any question about the residential address shown therein or the",,,,,

phone number. Though PW4 identified the deceased, we are not prepared to believe the testimony concerning the statements allegedly made by the",,,,,

accused to her, especially since PW4 has no prior acquaintance with the accused. Further, when call details of both the telephone numbers used by",,,,,

the accused were available, there should have been an investigation into the numbers, which had contact with the aforesaid mobile numbers. No such",,,,,

attempt was made by the investigating team and the prosecution too failed in eliciting the number to which PW4 received calls, as stated by her in",,,,,

Court, from the deceased and the accused on the 13th and 14th of November, 2014.",,,,,

12.  The learned Sessions Judge has discussed the incriminating circumstance provided by the call details in paragraphs 27 & 28. Mobile,,,,,

Nos.'8547556569' & '9447257885' were both found to be used by the accused, based on the evidence of PW37, PW5 & Ext.P22 application, a gross",,,,,

error. PW5 spoke of the number of the accused as '8547556569' and '9447917862' and not '9447257885'. Ext.P22 application form is also concerning,,,,,

'9447917862'. While recording such an erroneous finding concerning Mobile No.'9947257885', immediately in paragraph 28 it is stated that the call",,,,,

details of Mobile No.'8547556569' shows ten outgoing calls to the number of PW4 '9947257885'; which is stated to be that of the accused in the,,,,,

earlier paragraph. The prosecution case is that the mobile numbers used by the accused are '8547556569' & '9447917862' and that of PW4 is,,,,,

'9947257885'. The call details of '8547556569' also reveal ten calls from that to mobile No.'9947257885'. The learned Sessions Judge then found that,,,,,

PW38 deposed that the mobile number of PW4 is '9947257885'; which we see to be correct from his deposition. But for the bland statement made by,,,,,

the I.O, PW38, there is no evidence to prove the mobile number of PW4. PW4 also did not state her mobile number. There is not even a question put",,,,,

in chief-examination or re-examination as to the mobile number of PW4. When the lack of documentary proof was pointed out by the defense, the",,,,,

learned Sessions Judge refused to accept the contention on the ground that the oral evidence of PW4 indicated that she was called, by the accused",,,,,

and deceased from the mobile number '8547556569'. There is no such statement by PW4, that we see from her deposition. And anyway this does not",,,,,

indicate the number in which PW4 received the call. We fail to understand how the statement regarding the number from which the calls were made,",,,,,

can get over the lacuna of no documentary proof having been put forth of the receiving number or its subscriber.,,,,,

13.  The learned Counsel for the accused has also seriously challenged the assumption of the prosecution that the accused and deceased were,,,,,

living together. PW5 is a vehicle broker, who was entrusted with a scooter by the accused for sale. Nothing revolves around such entrustment. PW5",,,,,

also speaks of having been acquainted with the deceased, who was engaged in selling lotteries at North Paravur. There is only a laconic statement",,,,,

that he has seen the accused and deceased talking to each other on the road. PW8 is the owner of the room in OK Hall Complex and the rent,,,,,

agreement is marked as Ext.P6 and the recital of surrender is marked as Ext.P7. In cross-examination, PW8 has stated that Ext.P6 specifies the",,,,,

number of the room given on rent and the duration was two months. We looked at Exts.P6 & P7, which the learned Counsel asserts, are cooked-up",,,,,

documents. Ext.P6 is stated to be entered on 27.10.2014. The recital is of taking the room on rent for three months, as against the clear statement of",,,,,

PW8, that it is for two months. The room number is also not indicated in Ext.P6 as asserted by PW8. It is also pertinent that there is nothing produced",,,,,

to prove that PW8 owns a room in OK Hall Complex, which he also has the right to give on rent.",,,,,

14.  PW9 conducts a medical shop in the OK Hall Complex. He says that there are rooms in the said building given on rent for residential,,,,,

purposes also. PW9 arranged the room on rent for the accused and also signed as a witness in the rent agreement and the surrender recital. P6 is not,,,,,

a stamped document. The duration of the lease as stated in it; apart from being very improbable that anybody takes a residential room for such a short,,,,,

period and an agreement is reduced to writing for that short duration, differs from the period stated by the alleged owner before the Court. Further",,,,,

PW9 does not say anything about the deceased, which becomes relevant since he had close acquaintance with the accused and is also a person",,,,,

carrying on a business in a room in the building in which the accused was said to be residing. PW10 is another witness to the rent recital, who also",,,,,

says that he was the intermediary to the rent arrangement and that the duration of the rent agreement was two months. The said witness also, a",,,,,

person having a business in the building, does not speak about the deceased or her connection with the accused.",,,,,

15.  PW14 is the witness to Ext.P11 mahazar, when the police along with Scientific Assistant inspected the room in which allegedly the quarrel",,,,,

and smothering occurred. He is the Manager of OK Yogam; an entity which presumably has some proprietary interest in the building. He proved the,,,,,

recovery of an ID Card MO16 and a strand of hair, both allegedly of the deceased. He also marked MO17 medical bill, in the name of the accused,",,,,,

also recovered from the room. PW14 spoke of having seen a woman coming to the room of the accused and that the woman was the person in the ID,,,,,

card but there is no statement that they were living together. There was no question asked to him about the rental arrangement ie: the factum of PW8,,,,,

owning a room therein or anything touching upon the case of the prosecution that the accused and deceased were living together in the room in the,,,,,

said building. PW16 is a document writer having an office in OK Hall Complex and is the scribe of Ext.P6 document. PW16 submits that the room,,,,,

taken on rent by the accused was just above his office. He says that the accused was residing there and he saw ""one lady, on one day"" (sic), along",,,,,

with the accused; a very vague statement. In cross-examination, he also admitted that he did not tell the police about having seen a lady in the room of",,,,,

the accused.,,,,,

16.  PW18 has been arrayed as a witness to speak about the use of one mobile purchased from a mobile shop, which earlier was used by the",,,,,

accused. PW19 is the mobile shop owner, who speaks about the purchase of the used mobile from the accused. However, he does not specifically",,,,,

speak of a sale. He also does not remember the person to whom the mobile was sold. Despite the admission in cross-examination that the details of,,,,,

the persons not known to him are recorded by him, such record has not been shown to the police or produced in Court. In re-examination, the witness",,,,,

says that MO18 phone was purchased by the accused from him and returned within a month. Surprisingly, the Court allowed the said question when",,,,,

the prosecution did not have a case that MO18 phone was purchased by the accused from PW19 and no anomaly in that respect arise in cross-,,,,,

examination. In further cross-examination, the witness also stated that this fact was not told to the Police. No reliance can be placed on the evidence",,,,,

of PW19, especially when there is no evidence from the cellular company as to the specific SIM Card having been used in the mobile so recovered",,,,,

from PW18 by reference to the IMEI number of the instrument. The IMEI number of the instrument is also not proved before Court. More,,,,,

importantly, nothing revolves solely around the use of two mobile numbers by the accused so far as the mobile number of PW4 has not been proved.",,,,,

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out having not  been proved.,,,,,

27.  The circumstances proved are that there was a homicide by drowning and probably of smothering, deceased was identified and PW4, a",,,,,

friend did not receive any calls from the victim after the probable date of death. The accused was using two mobile phones, he had left Kodungallur",,,,,

speaking of a skirmish with a local leader and his scooter and a bag containing clothes were kept with PW13. These proven circumstances do not at,,,,,

all connect the accused to the crime.,,,,,

28.  We do not find any reason to uphold the conviction and sentence of the accused for the reason of the case of the prosecution having not been,,,,,

established beyond a reasonable doubt. An unidentified corpse was seen floating in a sack and the police deduced the circumstances, which after",,,,,

investigation, were sought to be established by the evidence led before the trial Court. The established circumstances fail to impress us in bringing",,,,,

home the guilt of the accused. The evidence as discussed by us does not at all indicate an unbroken chain of circumstances unerringly pointing to the,,,,,

guilt of the accused. As we noticed, the prosecution was inefficient and the Court too was a silent spectator. We allow the appeal acquitting the",,,,,

accused. We direct the judgment to be sent to the learned Sessions Judge, who conducted the trial for future reference and guidance. The appellant",,,,,

shall be released forthwith unless his continued detention is required in any other case.,,,,,