(1.) This appeal has been preferred against the judgment and order dated 10.12.2009 delivered by the Kerala High Court at Ernakulam in Criminal Appeal No. 86 of 2006, by way of which it has affirmed the judgment and order of the Sessions Court, Kottayam dated 3.1.2006, passed in Sessions Case No. 145 of 2005.
(2.) Facts and circumstances giving rise to this appeal are:
(3.) Shri S. Gopakumaran Nair, learned senior counsel appearing for the appellant, has submitted that there was no motive for the appellant to cause death of Praveen. It is a case of circumstantial evidence as there is no eye-witness to the actual incident of killing. The chain of circumstances is not complete. Haridas (PW.14), an auto- rickshaw driver had seen the appellant and others only for a fleeting moment. Though the appellant and Vinu (A-2) were arrested, no Test Identification Parade was conducted. The statements of witnesses were recorded under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.') by a Magistrate who did not even mention the date of recording such statements, such statements were not exhibited before the court for the purpose of corroboration and confrontation. Jose (PW.8), Shanavas (PW.12), and Mohamamed Sherif @ Monai (PW.13), identified Praveen (deceased), by seeing only his passport sized photograph. This is not enough as Shanavas (PW.12), had seen the appellant and others including Praveen (deceased), only for a brief moment and thus, was unable to identify them in court after the lapse of a period of several months, during the course of the trial. Different parts of the body were found, and the identification of the dead body, merely on the basis of a mole on the leg of the body cannot be held to be proper identification by the father, as the dead body was recovered after a lapse of 3/4 days. Different parts of the body were recovered on different dates and by such time the skin would have dis-integrated entirely. Neither Vijayamma nor Radhamma were examined. Aji, who had disclosed information pertaining to the illicit relationship of Praveen with the appellant's wife, was also not examined. A DNA test was conducted on the dead body to determine whether the same was in fact, the body of Praveen (deceased). However, the FSL report disclosed that in respect of the chopper used for the purpose of dismembering the parts of the body, no blood group could be detected. The whole case of the prosecution hence, becomes unbelievable, and the conviction of the appellant is liable, to be set aside.
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