1. Appellant (A-1) was charged u/s 302 of the Indian Penal Code for having caused the death of Thomaskutty by stabbing him with M.O. 2 knife during the night of 21st April 1986 (at about 12.15 a.m. on 22nd April 1986). Second accused was charged u/s 201 read with Section 34 of the I.P.C. A-2 was found not guilty and he was acquitted. A-1 was found guilty u/s 302 and he was convicted and sentenced to undergo imprisonment for life.
2. A-1 and A-2 are cousins. A-1 (hereafter referred to as ''accused'') was an employee of Thomaskutty (deceased) who was the owner of Apsara Theatre, Calicut. In May, 1985 accused left the service of Thomaskutty on his own accord. Prosecution case is that while accused was working as a gatekeeper in Apsara Theatre he was a troublemaker to the management, that after leaving the service under Thomaskutty he tried his luck in several ventures unsuccessfully and that he was under impecunious circumstances. On 21st April 1986 Thomaskutty returned to his house after his work. P.W. 1 a maidservant in the house went to bed in the upstair portion of the building at about 10.30 p.m. Thomaskutty slept in the bedroom in the downstair portion of the building along with his wife, a mental patient. P.W. 1 heard the call bell twice followed by an alarm accompanied by the thud of something falling down. P.W. 1 came down and found the light on and someone groaning from near the entrance door of the house. P.W. 1 found Thomaskutty lying on the Courtyard with his face downwards. She woke up the wife of Thomaskutty. Both of them went near Thomaskutty and found him in a pool of blood. They helped Thomaskutty to lie with face up. P.W. 1 found injuries on his chest and back: By the time he was dead P.W. 1 and wife of the deceased cried. Both of them proceeded to the adjacent house of Appunni Menon (P.W. 2) and informed him about the incident. P.W. 2 came to the place of occurrence along with P.W. 1 and Mrs. Thomaskutty. P.W. 2 realised that Thomaskutty was no more. P.W. 2 told P.W. 3, Anr. neighbour to inform the Police Control Room over telephone. P.W. 2 took P.W. 1 and Mrs. Thomaskutty to his house. He informed Thomaskutty''s father and daughters who were residing in a house at Mavoor Road. Within fifteen to twenty minutes police party came there. P.W. 1, P.W. 2 and Mrs. Thomaskutty came to the Courtyard where the dead body was lying. P.W. 1 lodged first information statement Ext. P-1 to P.W. 19 Sub Inspector of Medical College Police Station. P.W. 25 Circle Inspector held the inquest over the dead body. Ext. P-31 is the inquest report. P.W. 26 Assistant Commissioner of Police, Calicut North Subdivision conducted investigation and laid the charge before the Court.
3. There is only circumstantial evidence in the case. The circumstances relied on by the prosecution are:
(1) Motive for the accused to commit the crime;
(2) Evidence of P.Ws. 10 and 12 that the accused was seen near the place of occurrence at an untimely hour;
(3) Test identification parade in which accused was identified by P.W. 10;
(4) Fingerprint found on the door handle of the house of the deceased; and
(5) The bloodstained pants and underwear of the accused.
4. The learned Public Prosecutor pointed out that the evidence of P.W. 7 would show that the accused was not satisfied with the work and as the accused had a feeling that he was harassed by the management with several complaints he decided to wreak vengeance by liquidating his employer. The learned Counsel for the accused pointed out that in view of the fact that the accused resigned from service having obtained the amount legally due to him and as he was thereafter engaged in other avocations and as there is no evidence to hold that the accused was nursing a grudge against his erstwhile employer the motive suggested by the prosecution has not been proved at all in the case. Counsel for the accused further pointed out that in a case where the prosecution has alleged a motive and was failed to establish it adverse inference has to be drawn against the prosecution. Counsel pointed out that the evidence is far from sufficient to hold that the accused had a motive to commit the crime and as the evidence in fact shows that he cannot have any grievance against the deceased it is highly far-fetched to hold that the accused was responsible for the crime.
5. Motive set up by the prosecution has not been established in the case. In reality there is total lack of motive on the part of the accused to commit the horrendous crime. In Ext. P-32 remand report dated 24th April 1986 the case set up by the prosecution is that the accused was dismissed from service by the deceased and this motivated the accused to commit the crime. It is stated in Ext. P-32 that the accused was an employee under the deceased, that he was dismissed from service, that there was an attempt to implicate him in a theft case and that on account of it the accused harboured enmity towards deceased and to wreak vengeance committed the murder. Evidence in the case does not reveal dismissal of the accused by the deceased. In fact the evidence would only show that the accused left the service of the deceased on his own volition. Therefore, by no stretch of imagination it is possible to come to a conclusion that the accused perpetrated the crime out of vengeance. Evidence of P.Ws. 4, 6 and 7 and Ext. P-5 series would clearly rule out any motive for the accused to commit the crime.
6. P.W. 4, a gate-keeper of Apsara Theatre deposed that the accused left the service receiving all benefits due to him from the management. P.W. 4 stated that in 1984 the employees of Apsara Theatre struck work for 36 days and that accused was the leader of the strike. It is also stated by him that there was theft of toffees, biscuits and cigarettes from the canteen of the Theatre and management suspected the accused. A domestic enquiry followed. According to P.W. 4, Rs. 13,000 was lost from the safe of the theatre and during the course of investigation police had taken the accused to different places. In cross-examination P.W. 4 stated that the strike was not confined to Apsara Theatre alone but it was a strike involving all theatres at Calicut. He admitted in cross-examination that accused resigned the job with the expectation to go abroad for a better job.
7. P.W. 6, Canteen Manager of the Apsara Theatre deposed that he had filed a complaint against the accused with regard to theft of cigarettes, toffees etc., from the canteen in 1983, that there was domestic enquiry, that Rs. 13,000 was stolen from the office, that police questioned all the employees and that there was suspicion against the accused and sometime later accused quit the service. P.W. 7, Manager of the Theatre stated that accused was the leader of the strike which continued for 36 days in 1984, that five to eight employees were associated with the accused during the strike, that during the service of the accused in the theatre there were complaints against him and that Assistant Manager of the theatre had preferred a complaint against him on 31st May 1983 and as he pleaded guilty and tendered apology the file was closed. P.W. 7 deposed that P.W. 6 filed Ext. P-5 (b) complaint against the accused, that domestic enquiry was conducted by P.W. 16 advocate and that in the domestic enquiry accused was found guilty but the employer (deceased) condoned it. P.W. 7 admitted that accused and his four companions resigned their job.
8. Evidence of P.Ws. 4, 6 and 7 does not throw any light as regards dismissal of accused from service. Prosecution could not establish any evidence to the effect that accused was dismissed from service and he was disgruntled on account of it. On the other hand, evidence in the case would show that accused left the service of the deceased on his own accord. His resignation letter is Ext. P-5 (f) which is dated 28th May 1985. It is in evidence that the accused was paid Rs. 17,525 when he resigned his job. Though accused was found guilty in the domestic enquiry by P.W. 16 as evidenced by Ext. P-5 report, the evidence of P.W. 7 is unequivocal that the deceased pardoned him and he continued in the service for some time more. It was much thereafter that he resigned from the job and so it is not a case of dismissal of the accused from his job. Evidence in the case is thus far from sufficient to hold that the accused harboured enmity towards the deceased as he was chucked out of service.
9. In a case depending upon circumstantial evidence motive assumes importance unlike in a case where there is direct evidence against the accused. Absence of motive in a case depending upon circumstantial evidence may be a telling circumstance in a given situation. In
Absence of motive may not be relevant in a case where the evidence is overwhelming but it is a plus-point for the accused in a case where the evidence against him is only circumstantial.
Even in a case of circumstantial evidence if the circumstances unerringly point out the guilt of the accused prosecution''s failure to prove motive by itself may not be sufficient to throw out its case. But in a case where the circumstantial evidence without motive does not inspire confidence the failure to establish motive would be a significant factor to the advantage of the accused. As already pointed out, the evidence in the case would not establish that the accused on account of his dismissal from service was bent upon wreaking vengeance against his employer. As the evidence is that the accused quit the service on his own accord receiving financial benefits to the tune of Rs. 17,525 and as there is no other evidence of any lingering hostility between the accused and the deceased, on mere surmises it would not be possible to hold that accused entertained the motive to perpetrate the crime.
10. Evidence of P.W. 10 that he saw the accused near the house of the deceased cannot be believed in view of the infirmities in his evidence. P.W. 10 stated that while he was taking exercise at about 11.45 p.m. he heard his dog barking and running outside the gate. P.W. 10 proceeded to the gate to catch the dog. He saw a person riding a scooter and coming from the west. It was a brown scooter with K.R.V. registration. Scooter did not have any stepney or the red light. P.W. 10 stated that the person who came on the scooter tried to take the vehicle towards Thomaskutty''s house, that on seeing him that person proceeded towards east and that two minutes after he went towards west and then came to the east. P.W. 10 deposed that he had occasion to meet that person on prior occasions, but he did not have personal acquaintance.
11. P.W. 10''s evidence is strongly assailed by the defence Counsel on the ground that he has given an inconsistent version before the Magistrate who held the test identification parade. P.W. 10 told the Magistrate that he had no occasion to see accused on any previous occasion. Before the police as well as before the Court his version is that he had occasion to see the person who came on the scooter on previous occasions and therefore he would be in a position to identify him. P.W. 10 stated that he did not tell the Magistrate that he had no occasion to meet accused previously. The contradiction has been marked as Ext. D-4. His version in Ext. D-4 is totally contradictory to what he has stated before the Court. This is sufficient to view the solitary evidence of P.W. 10 with suspicion.
12. P.W. 10 identifying accused in the test identification parade is also challenged by the Counsel for the accused stating that no reliance can be placed on the same. Ext. P-12 is the proceedings in the test identification parade. In the report Magistrate has stated that accused had made a complaint to him before the commencement of the identification parade that when he was produced before the Court of the Judicial Magistrate of the Second Class, Kunnamangalam police showed him to a person having close hair-crop. As P.W. 10 admitted that he was having close hair-crop at that time, much weight cannot be attached to the test identification parade.
13. Though the scooter was seized only on 24th April 1986, P.W. 10 stated that the police showed him the scooter on 22nd April 1986. This also causes suspicion on his testimony. P.W. 22, landlord of A-1 and A-2 stated that M.O. 1 scooter was seized as per Ext. P-7 mahazar. That was on 24th April 1986. But P.W. 10 stated even in re-examination that when he was shown the scooter by the police on 22nd April 1986 his statement was not recorded. This also is a factor to view the evidence of P.W. 10 with much care and caution As the evidence of P.W. 10 does not inspire confidence, the resultant position is that no weight can be attached to the evidence of P.W. 12 as well.
14. Learned Public Prosecutor submitted that Ext. D-4 is inadmissible and so on the basis of it P.W. 10''s evidence cannot be rejected. According to him, the Magistrate was not justified in recording the statement of P.W. 10 as mentioned in Ext. D-4. He relied on State of Kerala v. Rajan 1985 KLT 65 and submitted that Ext. D-4 is inadmissible in evidence. What has been laid down in the above decision is that under the guise of conducting an identification parade it is not within the province of a Magistrate to record "other statements" ''which have a bearing to the guilt of the accused except u/s 164 of the Code of Criminal Procedure. Public Prosecutor submitted that Magistrate is not expected to interrogate a witness to elicit any answer which would have a bearing on the case and therefore Ext. D-4 is inadmissible. There is no basis for the said argument as the Magistrate questioned P.W. 10 as to whether he knew the person whom he wanted to identify in the identification parade and as he did not ask any other question with regard to the merits of the case it cannot be said that Ext. D-4 is not admissible in evidence. P.W. 10 has sworn before the Magistrate that on the date of occurrence he saw the accused and prior to that he had no occasion to see him or being acquainted with him. As the Magistrate did not ask any question to P.W. 10 concerning the case, it cannot be said that under the guise of conducting the identification parade he made any searching question to P.W. 10 to elicit any information about the case. Magistrate asked only the bare minimum question to P.W. 10 which was very necessary for the test identification parade, Therefore it is not possible to hold that Ext. D-4 is inadmissible in evidence. It is always open to a Magistrate to elicit answers from a witness who has come for identification parade whether he had prior occasion to see the person whom he wants to identify.
15. The next circumstance relied on by the prosecution is the detection of the finger print of the accused on the door-handle of the scene house. There were altogether six chance prints in the scene house. Even on the door-handle there were two chance prints. They are M-1 and M-2. M-1 compared very much favourably with finger print slip Ext. P-27. The Analyst''s report shows that there were similarities in the chance print and that of the finger print slip. The five chance finger prints were not examined. Out of the two finger prints found on the door-handle only one was identified and the finger print M-2 was not examined by the expert. Prosecution does not have a case that M-2 was smudged and so it could not be developed and examined. Even if one of the fingerprints found on the door-handle really belonged to the accused, it is not sufficient to lead to the conclusion that he was the assailant particularly in view of the lack of evidence with regard to the finger prints found inside the room. There was one finger print on the television in the room. As several finger prints were there, to whom other finger prints belonged ought to have been investigated.
16. P.W. 24 stated that finger prints found on the door handle were clear. He stated that he found one suspect finger print tallied with the admitted finger print and so it was not necessary to analyse the other finger prints. He stated that there were 10 points of similarities in the finger print M-1. Exts. P-28 and P-29 are the enlarged photographs of the finger prints. Merely for the reason that one of the finger prints found on the door-handle favourably compared with that of the admitted finger print of the accused it cannot on that basis alone be used to fasten criminal liability upon him particularly in the absence of any other circumstantial evidence pointing to his guilt. As the evidence in the case shows two clear finger prints on the door-handle and as one alone has been examined and as the finger prints inside the room also have not been examined, involvement of some other person in the crime cannot be ruled out. At any rate accused is entitled to benefit of doubt especially in view of total lack of motive for the crime and also in view of any other circumstance unerringly pointing to his guilt.
17. Yet Anr. circumstance against the accused is the alleged, seizure of his bloodstained pants and underwear. Prosecution would have it that pursuant to the information given by the accused his pants and underwear were seized when produced by his wife P.W. 5. P.W. 5 did not support the prosecution and she was declared hostile to the prosecution. But she admitted having signed Ext. P-2 mahazar. As per Ext. P-2 mahazar, pants (M.O. 10) and underwear (M.O. 11) were seized. The Analyst''s report shows that they contained human blood. This is a circumstance relied on by the prosecution heavily against the accused. While accused was questioned u/s 313 Code of Criminal Procedure no specific question was asked to him as to what he has to say with regard to the bloodstains found on the pants and underwear. The Sessions Judge ought to have sought the explanation of the accused with regard to the above incriminating circumstance while he was questioned u/s 313 Code of Criminal Procedure. As the accused was not questioned about it, he has been denied of an opportunity to explain the incriminating circumstance.
18. The very foundation of Section 313 Code of Criminal Procedure is based on the principle that no person should be condemned unheard. Accused should be heard not merely on the evidence that is prima facie proved against him but he must be questioned with regard to all incriminating evidence that has surfaced during the trial including the report of the analyst. u/s 313 accused can be questioned at any stage of the trial or enquiry. Secondly when the prosecution evidence is over the accused has to be called upon to enter on his defence. At the second stage questioning of the accused by the Court is not optional. It is compulsory and on such questioning he must be asked to explain the incriminating circumstances that have emerged in the case against him.
19. When the prosecution relies upon an important piece of evidence against the accused, it is incumbent upon the Court to question him about it and seek his explanation. Prosecution cannot rely on such a piece of evidence which was not put to the accused. In other words, that piece of evidence which prosecution relies upon must be put to the accused while he is questioned u/s 313 Code of Criminal Procedure. In
20. As the accused was not asked to explain anything with regard to the bloodstains on his pants and underwear, that evidence and Ext. P-18 cannot be pressed into service against him. Though the accused is not bound to explain any incriminating circumstance against him or he can refuse to offer any explanation, it is still necessary to invite his attention to the incriminating circumstance against him. Counsel for the accused submitted that if the accused was really asked to explain about the presence of blood on the pants and underwear, assuming that it belonged to him, he could have given his explanation and as that has been denied the mere presence of blood on the dress cannot be considered to be a formidable circumstance against him. As Section 313 is meant to enable the accused to explain any circumstance appearing against him, his attention should have been invited to it and as that was not done no significance can be attached to the seizure of his pants and underwear alleged to have been found with bloodstains.
21. Accused while questioned u/s 313 stated that he and deceased were neighbours, that he was having cordial relationship with the deceased, that tp obtain a job abroad deceased had given him Rs. 17,500 in consideration of his lour years'' service under him, that he purchased an autorikshaw, that he sold the autorikshaw and started poultry business and that he had also gone to the scene house to see the dead body. There is evidence in the case that the accused was having autorikshaw and that later he switched on to poultry business. In the absence of any evidence to the contrary, statement of the accused that he was having cordial relationship with the deceased cannot be doubted. In
When an accused person oilers a reasonable explanation of his conduct, than, even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false.
22. As the prosecution failed to prove the motive and as there is no reliable evidence to fix the complicity of the accused in the crime, the fact that the finger print (M-1) found on the door-handle compared favourably with the admitted finger print of the accused cannot by itself be sufficient to saddle criminal liability upon him for the dastardly crime.
23. In a case depending upon circumstantial evidence, such evidence must satisfy three tests:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; and
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
On a consideration of the evidence, we hold that the circumstantial evidence in the case is not sufficient to sustain the conviction against the accused.
24. For the foregoing reasons, we hold that the prosecution has not established its case against the accused beyond reasonable doubt. Accused is found not guilty and is acquitted. The conviction and sentence entered against him by the learned Sessions Judges are set aside. Accused shall be set at liberty, if not wanted to be detained for any other cause.
The Criminal Appeal stands allowed.
