The absence of conclusive circumstantial evidence and inconsistencies in the prosecution's case warranted the acquittal of the accused.

JUDGMENT

K.Vinod Chandran, J.

The prosecution alleged a crime for gain, wherein the accused killed his room mate cum co- employee and disappeared with the ornaments and mobile of the deceased. The prosecution examined 28 witnesses, marked 46 documents and produced 20 material objects. The trial court convicted the accused under S.302 and S.394 of IPC and sentenced him to imprisonment for life and rigorous imprisonment for 5 years, respectively. Fine was imposed at Rs.50,000/- and Rs.5,000/- with default sentences and provision for compensation to the dependants of the deceased.

2. Learned Counsel Vinay.V appeared for the appellant/accused and argued for acquittal. The time at which the FIS was made is not clear and the time noted does not tally with what is stated by PW1. There is no clarity as to whether the accused was staying together with the deceased; which seriously puts to peril the last seen together theory, one of the trump cards of the prosecution. There were other occupants in the Hotel in which the murder occurred, none of whom were examined. There is no time recorded of death and hence the exit of the accused from the hotel at night, as seen from the C.C TV footage cannot be an incriminating material. The hard disk of the C.C.TV was not produced before Court nor the footage played over at the time of evidence. The evidence available of the technician and the Investigating Officer (I.O) is to the effect that they saw the footage, in which the accused and the deceased were seen coming in and going out of the hotel. There can be no reliance placed on such testimony without production of the hard disk and the footage being viewed by the Court, in the presence of the accused.

3. The recoveries as seen from Exts.P22, P23 and P36 are specious. Crucial witnesses have not been examined and the signatures of the witnesses to the mahazar differ. The recovery of an ornament is recorded in English, translated from the confession spoken of by the accused in Malayalam. The same is not permissible as has been found by a Division Bench of this Court in Sanjay Oraon v. State of Kerala 2021 (5) KHC 1. While the ornament and the mobile phone of the accused were recovered from the State of Telangana, one mahazar was recorded in English and the other in Malayalam. Despite the relatives and friend of the deceased having been examined they were not confronted with the recovered items and hence they are not identified as those belonging to the deceased. There is no seizure mahazar for MO1 knife and the same is marked through the shop owner who sold it. The Police Officer, who made the seizure from the scene of occurrence does not speak of it at all.

4. The medical evidence shows a weapon with two sharp edges having been used while MO1 is sharp only on one side and blunt at the other; which could only cause triangular shaped wounds on stabbing. The I.O or the C.C TV technician does not speak of the accused having moved out of the hotel for the purchase of the knife which is said to have been made from a near by shop at 7:00 p.m. Eighteen chance prints were taken from the room, when the knife was not examined for finger prints. Only one out of the 18 prints match with that taken from the accused, that too a print recovered from the door. Though the prosecution asserts that the accused was staying in the room in which the dead body was found, there is not even one print found inside the room. Ext.P21 handwriting does not tally with that in Exts.P3 and P3(a). As has been held in Yoosaf.S.K v. State of West Bengal [2011 (11) SCC 754], the mere fact of the accused having absconded cannot solely result in a conviction. The learned counsel reads out the version of the accused given at the time of Section 313 questioning, to emphasise the reasonable explanation offered by the accused. Even according to the prosecution, the accused was dropped by the Autorickshaw driver at the casualty of the Kottayam Medical College Hospital, where another co-em