The prosecution failed to establish all elements of culpability based on circumstantial evidence, leading to the quashing of the death sentence.

JUDGMENT

Dated this the 03^rd day of July, 2024 Syam Kumar V.M., J.

This appeal is filed by the sole accused in SC No.353 of 2015 challenging the judgment dated 05.07.2018 of Additional Sessions Judge IV - Kollam, convicting and sentencing him to death under Section 302 of the IPC . The learned Additional Sessions Judge IV - Kollam has on the other hand forwarded the case records in SC No.353 of 2015 to this Court for confirmation of the death sentence as provided in Section 366 (1) of the Code of Criminal Procedure, 1973 . We proceed to consider both the appeal and the reference together.

Prosecution case:

2. Prosecution case is that on 11.06.2013, at 3.00 P.M., the appellant had trespassed into the house of Alice Varghese @ Ponnamma, aged 57 years, with the intention to commit rape and robbery and that after committing those crimes, caused her gruesome death and decamped with articles worth Rs.6,00,000/-.

The investigation:

3. Based on the FI statement of PW1, who is a nephew of the deceased, Crime No.1230 of 2013 was registered at Kundara Police Station at 11.00 A.M., on 13.06.2013. Preliminary investigation and inquest were conducted by PW16 (S.I. of Police) and MOs 11 to 32 were recovered. Investigation was then taken over by PW19, C.I. of Police, Kundara Police Station. He arrested the accused on 25.06.2013 and seized MOs 1 to 10. Subsequently PW21, Dy.S.P., Kundara completed the investigation and laid the final charge.

Proceedings before the Trial Court:

4. After the submission of the final report before the Judicial First Class Magistrate Court-I, Kottarakkara, the case was committed to the Sessions Court, Kollam, under Section 209 Cr.P.C . and then made over to the First Additional Sessions Court, Kollam, for trial. Since the accused was not defended by a lawyer, a counsel to defend him was appointed through the concerned Legal Services Authority. Though a crime punishable under Section 376 IPC was alleged, the appellant was not charged under the said Section.

5. Prosecution examined witnesses PW1 to PW23. Exts.P1 to P36 were marked and MOs 1 to 32 were identified. Accused was examined under Section 313 (1)(b) of Cr.P.C . He denied the charges levelled against him and submitted that he had no connection whatsoever with the crime and that he had been falsely implicated by the police. No defence evidence was adduced from the side of the accused.

Judgment of the Trial Court:

6. The trial court found the accused guilty under Sections 449 , 461, 394 and 302 of the IPC . He was sentenced to death under section 302 and to undergo imprisonment for life for the offence under Section 449 , to rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- and in default, undergo simple imprisonment for six months under Section 394 of the , as well as rigorous imprisonment for one year under Section 461 of . In compliance with Section 366 Cr.P.C ., the records were directed to be forwarded to this Court for confirmation of death sentence.

Appeal before us:

7. We have heard Sri.M. Rajesh, the learned counsel appearing on behalf of the appellant and Smt.Ambika Devi, learned Public Prosecutor appearing for the respondent/State.

8. The submissions of the learned counsel for the appellant are summarised as follows:

# Prosecution has not succeeded in putting forth any evidence to connect the appellant to the alleged crime. No incriminating material has been recovered from the scene of occurrence pointing to the involvement of the appellant.

# No witnesses have been examined or any evidence tendered to prove the presence of the accused at the place of occurrence or anywhere in the vicinity at the relevant time or even prior to the same.

# There is no reliable evidence to show that, MOs 1 and 2 viz., the chain and bangle, which were purportedly recovered from the jewellery shop based on the disclosure statement of the appellant, belonged to the deceased.

# Recovery of MO10 SIM cards from the jeans/ pants of the appellant from a barbershop