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PETITIONER:

MUJEEB & ANR.

Vs.

RESPONDENT:

STATE OF KERALA

DATE OF JUDGMENT: 29/11/1999

BENCH:

G.B.Pattanaik, M.Srinivasan

JUDGMENT:

PHUKAN, J

This appeal is directed against the Judgment and Order

dated 24.01.97 passed by the High Court of Kerala in

Criminal Appeal No. 485/93. The High Court allowed the

appeal filed by the State by setting aside the judgment of

the Sessions Judge, Kozhikode Division dated 26th March,

1993 in Sessions Case No. 9/92. The learned Sessions Judge

acquitted accused Mujeeb @ Mujeeb Rahman (A1), Johnson(A2)

and Akbar (A3) who were charged under Sections 302, 392, 201

and 120-B IPC read with Section 34 IPC. The High Court as

stated above allowed the appeal filed by the State and

convicted all the three accused under the above Sections.

The present appeal has been filed only by two accused namely

A1 and A3. A2 is not before us. The prosecution case was

that on 30.03.91 at about 11.30 a.m A1 reached Koyilandy

Taxi Stand, hired the Tourist Taxi (Ambassador Car) driven

by Balan of Thazha Valappil. A1 went in that car to Ashar

lodge in Koyilandy where the other accused were staying and

all of them proceeded in the car to Wynad and spent some

time in Pookode lake. Thereafter, they visited Thirunelli

Temple and Mananthavadi. While they were returning to

Thamarasserry, it was alleged by the prosecution that soft

drink Fruitymixed with sleeping pills was given to the

driver Balan and also intoxicating liquor. After

immobilizing and removing him from the drivers seat, A1

drove the car to Thamarassery and Eangampuzha. At about

11.30 p.m. they strangulated the driver Balan with a

thorthu and proceeded to Puthuppadi . They also took away

the purse and watch from deceased Balan and with the

intention to cause disappearance of evidence of murder and

robbery they threw the dead body of deceased at one

kilometer west of 9th point curve at Wynad Ghat Section.

The accused took the car to Mysore and Bangalore and altered

the registration number and also sold the watch and some

other things of the deceased at Mysore and stayed there.

They returned to Sultans Battery and on 04.04.91 in the

evening they entrusted the car for service in an automobile

workshop informing that they would take the car on the next

day morning. The owner of the workshop found that there was

alteration of registration number of the car and getting

suspicious he informed the sub-inspector of police, Sultans

Battery. In the morning of 05.04.91 the sub-Inspector along

with other police personnel came to the workshop in mufti

and when the accused came to the workshop they were

apprehended and taken to the police station. We have heard

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the learned counsel for the parties. In absence of direct

evidence prosecution tried to prove the case through

circumstantial evidence. When a case rests on

circumstantial evidence, such evidence must be cogently and

firmly established. These circumstances should form a chain

pointing towards the guilt of the accused and the same

should be 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. If any link in the

chain is missing the guilt of the accused cannot be

established.

In Mohan Lal Pangasa Versus The State of U.P AIR 1974

SC 1144, this Court held that it is trite law that when the

evidence against an accused person, particularly when he is

charged with a grave offence like murder, if it consists of

only circumstances and not direct oral evidence, it must be

qualitatively such that on every reasonable hypothesis the

conclusion must be that the accused is guilty; not

fantastic possibilities nor freak inferences but rational

deductions which reasonable minds make from the probative

force of facts and circumstances.

In Umedbhai Jadavbhai Versus State of Gujarat AIR 1978

SC 424 = SCR 1978 (2) 471 this Court held that it is well

settled that in a case resting on circumstantial evidence

all the circumstances brought out by the prosecution, must

inevitably and exclusively point to the guilt of the accused

and there should be no circumstance which may reasonably be

considered consistent with the innocence of the accused. It

was further held that in case of circumstantial evidence,

the court will have to bear in mind the cumulative effect of

all the circumstances in a given case and weigh them as an

integrated whole. Any missing link may be fatal to the

prosecution case.

Before we consider the other circumstances sought to

be proved by the prosecution we may at the out set take note

of the fact that both trial court and the High Court

rejected the prosecution version of the story that the

accused gave soft drink Fruity mixed with sleeping tablets

and also intoxicating liquor in view of the evidence of the

doctor and Chemical analysis report (Exh. P-45). Moreover,

no evidence was on record to prove that intoxicating liquor

was given to the deceased.

According to the prosecution on 29.03.91 A1 wanted to

hire a taxi from the taxi stand to go to Wayand and he

talked to PW12 who was the driver of a tourist taxi and as

A1 wanted to visit places at Wayaned and then return, PW12

did not agree to undertake the trip. Thereafter the car was

handed over to deceased by PW12 on 30.03.91. On that date

it was alleged by the prosecution that A1 talked to the

deceased and hired the taxi and drove away. The trial court

as well as High Court disbelieved the above version of

prosecution story that A1 approached PW12 on 29.03.91 and on

the next day PW3 saw A1 talking to the deceased Balan for

hiring the taxi. Both the Courts below also did not accept

the identification of A1 by PW12 in the belated test

identification parade conducted by PW35 and the evidence of

PW3 that he saw A1 talking to deceased at 11.30 a.m. on

30.03.91 as PW3 did not disclose this fact to the

Investigating Officer. We are of the opinion that both the

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courts below rightly discarded the above version of the

prosecution story. According to the prosecution the accused

took the car driven by the deceased first to Pookod lake in

Wayanad for boating. PW31 was examined to prove this fact

but he turned hostile. From the lake they went to temple

and PWs4 and 29 who had gone to the temple saw the deceased

and the car near the temple. The High Court took note of

the fact that PWs 4 and 29 did not disclose this fact to the

investigating officer and did not claim to have seen the

accused. However, according to the High Court it was quite

probable that the car went to the temple. But nobody saw

the accused in the car or in the temple and therefore in our

opinion this fact would not link the accused to the alleged

crime. Both the courts below also did not believe the story

of the prosecution that the deceased along with the accused

went to the shop of PW33 for repair of dynamo of the car who

could not set it right and thereafter it was taken to an

auto-electrician - PW32. According to the courts below both

PWs32 and 33 could not have identified the accused. More

over PW32 became hostile witness. The car was taken to PW40

who was the owner of Excel autos in Mananthawady for

purchasing diesel. According to the courts below

prosecution also could not prove this fact as PW40 turned

hostile. Regarding the death by strangulation of the

deceased while they were going from Mananthawady towards

Thamarassery the trial court did not accept this version of

story of the prosecution in view of medical evidence. It is

true that at the time of conducting autopsy the dead body

was decomposed. PW42 who conducted autopsy clearly stated

that during post-mortem he did not find any positive

evidence of ligature strangulation. This witness gave the

opinion that possibility of death resulting from ligature

strangulation as per police history can be ruled out. The

High Court held as follows: It is here the theory of

strangulation with MO- 14 found on the dead-body became

relevant and acceptable particularly in the context that the

medical evidence did not totally rule it out as the case of

death.

We are of the opinion that the High Court erred in law

in not giving the clear finding inasmuch as medical evidence

is clear. The evidence of doctor that possibility of death

resulting from ligature strangulation as per police history

could not be ruled out, is not a positive medical evidence

to come to the conclusion that death was caused by

strangulation. We find from the impugned judgment that the

High Court laid too much stress on the subsequent alleged

conduct of the accused. According to prosecution after

dropping the dead body accused went to Mysore and Bangalore

in the same car and they stayed there till 03.04.91. At

Bangalore they stayed at Manjunatha Lodge which fact was

sought to be proved by prosecution by examining PW15. The

prosecution has led evidence to prove disposal of articles

belonging to the deceased by the accused. We find from the

evidence of the Investigating Officer PW13 that accused were

taken to various places for alleged recovery of the above

articles. Though according to Investigating Officer the

recovery was made on the basis of statement of the accused

but we find from the evidence that actual words in verbatim

leading to recovery were not recorded by the Investigating

Officer. For example in case of one recovery PW 49 deposed

in the following words: Thereafter, based on the statement

of the same accused that he knows the person who runs a

blade company and provision shop at Ambalavayal with whom he

had pledged the gold bangles and that he could show the same

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place as led by the accused we reached the same place and

questioned the witness and recorded his evidence."

In our opinion such a statement by the accused can not

be treated as statement of the accused leading to recovery.

More over witnesses to the recoveries were co-drivers of

deceased residing far away at the distance of about 100

k.ms. Therefore, such recoveries are not legally

acceptable. According to the prosecution on 4.4.91 in the

evening accused entrusted the car for service in the

automobile workshop informing that they would take car on

the next day and while trying to do so they were apprehended

by the sub-Inspector of police Sultans Battery on 5.4.91.

From the evidence of PW47 the sub-inspector who apprehended

the accused persons we find that this witness did not record

the information given by the owner of the workshop and the

fact that he apprehended the accused in the general diary of

the police station. According to PW47 these facts were

recorded in his pocket note book which was not proved.

We are unable to accept the above version of the story of

the prosecution, accepting it. and therefore, hold that the

High Court erred in law in On the following material

circumstances the prosecution tried to bring home the

charges against the accused namely: (i) A1 hired the

tourist taxi driven by deceased Balan; (ii) all the accused

went in the car driven by deceased Balan to Wynad and spent

some time in Pookad Lake and thereafter they visited

Thirunelli temple and Mananthavadi; and (iii) while

returning to Thamarasserry accused gave soft drink Fruity

mixed with sleeping pills to deceased Balan and after

immobilizing and removing him from drivers seat A1 drove

the car and accused strangulated the driver Balan to death

and thereafter proceeded to Puthuppadi. Both the courts

below did not accept the above circumstances except the fact

that the High Court did not rule out possibility of death of

deceased Balan by strangulation which finding is not tenable

in law as stated above. The High Court giving considerable

importance to the subsequent events of recovery of the

vehicle from the service station, taking into custody of the

accused by the sub-Inspector of police, Sultan Batterys,

recovery of articles belonging to the deceased and parts of

the car, found the appellants guilty. We have already held

that the prosecution has failed to prove the above

circumstances. We hold that the High Court erred in law in

not considering whether the circumstances proved, formed a

complete chain. In this chain of circumstances following

links are missing namely- hiring of taxi driven by the

deceased by A1, visiting lake and temple by the accused in

the taxi driven by the deceased, giving soft drink mixed

with sleeping tablets, intoxicating liquor and death of the

deceased due to strangulation. In view of the above missing

links in the chain of circumstances we hold that the

prosecution has failed to establish the guilt of the accused

cogently and firmly. A reasonable person on the facts of

this case cannot come to the conclusion that the accused

were guilty. Taking into account the cumulative effect of

all these circumstances and weighing them as an integrated

whole we have no hesitation to come to the finding that the

accused were not guilty. For the reasons stated above we

find merit in the present appeal and accordingly allow the

same by setting aside the impugned judgment and order of the

High Court. Both the appellants shall be set at liberty

forthwith if not required in connection with any other

offence.

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