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IN THE HIGH COURT OF KERALA
P. JANAKI AMMA, S.K. KADER, JJ.
THOMACHAN - Appellant
Vs.
STATE OF KERALA - Respondent
Crl. A. No.108 of 1976
Decided On : 13-07-1977
Criminal Law - Murder - Indian Penal Code, Section 302 - Circumstantial evidence, recovery of evidence, and absence of specific charge - The court acquitted the appellant of the charge of murder under Section 302 of the Indian Penal Code based on circumstantial evidence and absence of a specific charge for robbery or theft. The recovery of evidence was not sufficient to establish the appellant's guilt beyond reasonable doubt.
Fact of the Case:
The appellant was convicted for an offence punishable under Section 302 of the Indian Penal Code for the murder of Thomas. The case relied on circumstantial evidence, including the recovery of evidence and the appellant's financial circumstances.
Finding of the Court:
The court found that the circumstantial evidence, including the recovery of evidence, was not sufficient to establish the appellant's guilt beyond reasonable doubt. The absence of a specific charge for robbery or theft also led to the acquittal of the appellant.
Issues: The issues revolved around the sufficiency of circumstantial evidence, the absence of a specific charge for robbery or theft, and the applicability of Sections 221 and 222 of the Code of Criminal Procedure.
Ratio Decidendi: The court held that the recovery of evidence and the absence of a specific charge for robbery or theft were crucial in determining the appellant's guilt. The court also discussed the applicability of Sections 221 and 222 of the Code of Criminal Procedure in relation to the case.
Final Decision: The court acquitted the appellant, set aside the conviction and sentence, and allowed the appeal, leading to the appellant's immediate release.
S.K. Kader, J.
The appellant has been convicted by the Court of Session, Kozhikode, for an offence punishable under S.302 of the Indian Penal Code and sentenced to imprisonment for life.
2. The incident was on the night of November, 23, 1975 sometime between 8 p.m and 9 p.m., at a place, on the northern corner of the property of one Thomas, within the limits of Kuttiadi Police Station. Thomas, the deceased in this case, aged 50, was a farmer residing with his wife Rosa (Pw. 3), and son Jose (Pw. 2) in Maruthonkara in Badagara Taluk. Pocken (Pw. 1) Luis (Pw 4). Kuttappan alias Chacko (Pw. 5) and the appellant herein are said to be neighbours of the deceased residing in the same locality. Luis was running a provision shop at Mullankunnu Bazar. On the date of occurrence at about 7-30 p.m. Pw. 4, Pw. 5, Thomas (the deceased) and the appellant had been to a nearby arrack shop and all of them consumed arrack. All the four then together left the arrack shop and were returning to their respective houses. On reaching near his house, Pw. 4 parted their company and went to his house pw. 5, the deceased and the appellant proceeded further till they reached near the house of the appellant, when the appellant took leave of pw. 5 and the deceased and went to his house. Thereafter pw. 5 alone was in the company of the deceased. After covering some distance and when they reached near a lane proceeding in the direction of the house of pw. 5, Pw. 5 went to his house while the deceased proceeded along the pathway northwards. pw. 1 with a lighted country torch in his hand was going in search of his son who did not return from the place of bis work even after 8 pm. On the way, he saw the body of Thomas lying on the bank of a small canal (thodu known as Cheedithode) at about 9 p.m. on the same night After conveying information of this to the paternal uncle of the. deceased, pw. 1 went to Kuttiadi Police Station on the same night and laid the first information statement (Ext. P-1) before pw. 12, Head Constable, who registered a case on that basis. The next day, the Sub Inspector of Police visited the place of occurrence, held inquest over the dead body, prepared inquest report (Ext. P-14) and questioned witnesses. pw. 6, doctor, Tutor in Forensic Medicine, Medical College, Calicut, held autopsy over the dead body and issued the post-mortem certificate (Ext. P4). The appellant was arrested by pw. 14, Detective Inspector (C.B.I., C.I.D.) and on the basis of the information given by the appellant, pw. 14 recovered M.O. 1 purse with M.O. 7 (series) currency notes to the value of Rs. 1000 under mahazar, Ext.P-9, attested by pw. 9 Raman Nair and pw. 10, Village Assistant
3. The plea of the appellant was one of complete denial.
4. The learned Sessions Judge relying on the recovery of M.O. 1 and the currency notes convicted and sentenced the appellant as aforesaid.
5. The conviction and sentence passed against the appellant are strongly assailed by the counsel appearing for the appellant. It was contended that the evidence regarding the recovery of M.O. 1 and M O.7 series is quite unsatisfactory and that there is no evidence to connect the appellant with the alleged commission of the offence of murder.
6. There are no eye-witnesses to the occurrence and the case entirely depends upon circumstantial evidence. The factum of the death of Thomas as a result of certain injuries sustained by him on the night of occurrence due to strangulation is not disputed. This fact has also been conclusively proved by the medical evidence in the case. pw. 6, doctor who held autopsy over the dead body is of the opinion that Thomas died due to asphyxia as a result of strangulation.
7. The following are the circumstances relied on by the prosecution to sustain the conviction and sentence passed against the appellant :
(1) The medical evidence showing that Thomas died of asphyxia due to strangulation.
(2) The appellant was financially in very strained circumstances.
(3) He was one
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