SIVANKUTTY Vs. JOHAN THOMAS

JUDGEMENT

(1.) First accused in S.C.No.125 of 2009 on the file of Additional Sessions Court, Ernakulam is challenging his conviction and sentence for the offence under Section 302 of IPC in this appeal. Appellant, along with 8 other accused, was tried for the offences under Section 143, 147, 148 and 302 of IPC read with Section 149 of IPC for the murder of Shahul Hameed, the husband of PW11, Fathima. PW1 Hussain is the brother of PW11. They are residing in nearby houses. Prosecution case is that on 26.6.2006 at about 1 pm, the deceased had an altercation with second accused, Shameer and to wreck vengeance, the second accused, along with other ten accused, the last one being a juvenile, formed an unlawful assembly with the common object of murdering Shahul Hameed and in furtherance of the common object, appellant inflicted the fatal injury on his chest with Mo1 iron needle on 26.2.2006 at about 9 pm in the varandah of a shop building and caused his death. Prosecution case is that the incident was witnessed by Pws 3 to 6 and 12 and PW12 informed it to PW1, who lodged Ext.P1 FI Statement. Prosecution has a case that before inflicting the injury on the deceased, in furtherance of the common object, accused 1 to 4 searched the deceased and threatened him that if they could not find the deceased, his family will not be left behind and accused 1 to 4 and 7 had gone to the house of PW11 and searched for the deceased and threatened that Shahul Hameed will be done away with and Shahul Hameed was murdered in furtherance of the common object. Prosecution though examined the eye witnesses Pws 3 to 6 and 12, all of them turned hostile and deposed that they did not witness the incident. PW1 and PW11 supported the prosecution case. PW1 deposed from the box that accused 1 and 4 had approached him on the night of 26.6.2006 and threatened him that if they did not find Shahul Hameed, the family of PW1 will be done away with. PW11 deposed that accused 1 to 4 and 7 came to her house and threatened that Shahul Hameed will be done away with. They have no case that they had witnessed the incident. PW12 denied the case that he informed the incident to PW1, as deposed by PW1.

(2.) The specific question was framed whether the death of Shahul Hameed was caused by appellant as a member of unlawful assembly and the other accused were members who participated in the incident, we find no finding on that question. Accused 2 to 9 were acquitted finding that there is no evidence against accused 5, 6, 8 and 9 and "the chain of evidence as against accused 2 to 4 and 7 has been broken ". Appellant was convicted based on the circumstantial evidence. According to learned Additional Sessions Judge, the circumstantial evidence pointing out the guilt of the appellant are the threats made by the appellant as deposed by PW1 and PW11 and the recovery of Mo1 weapon under Ext.P7 recovery mahazar, proved by the evidence of PW16 Investigating Oficer and PW7 and PW8 the witnesses to Ext.P7 recovery mahazar. Learned Additional Sessions Judge relied on the information furnished by the appellant, marked as Ext.P7(a) in Ext.P7 recovery mahazar, to hold that recovery of Mo1 was made at the instance of the appellant. These are the only circumstances relied on by the learned Additional Sessions Judge.

(3.) Learned counsel appearing for the appellant pointed out that the circumstances relied on by the learned Additional Sessions Judge do not establish that appellant inflicted the injury on the deceased and therefore his conviction is unsustainable. Learned counsel pointed out that Mo1, though alleged to be the weapon with which the injury was inflicted on the appellant, was not proved to be the weapon used for inflicting the injury. It was also pointed out that Ext.P26, the report of the Director of Forensic Science Laboratory, who examined Mo1 at the laboratory establish that the blood found in Mo1 was not sufficient to prove whether it is of human origin, much less that of the deceased and therefore, there is no evidence to prove that Mo1 was the weapon used for inflicting the injury on the deceased. It was also pointed out that no other witness had given evidence that the injury was inflicted with Mo1. Learned counsel also argued that Ext.P7(a), portion of the alleged confession statement of the appellant does not disclose that appellant had kept the knife at the place from where it was recovered and at best, it would only show that appellant was aware of the place where the weapon was kept and based on that fact, it cannot be found that appellant committed the offence. It was also pointed out that evidence of PW1 and PW11 even if accepted, would only show that appellant, along with accused 2 to 4 and 7, approached PW1 and PW11 and made a threat and based on that fact, appellant cannot be found guilty and as none of the circumstances relied on by the court establish that the offence was committed by the appellant, the conviction is not sustainable.