FAISAL S/O MUHAMMED Vs. STATE OF KERALA

JUDGEMENT

(1.) THE accused was prosecuted for the offences punishable under Section 302 and 201 of Indian Penal Code. He was found guilty on both counts. He was convicted and sentenced to undergo imprisonment for life for the offence under Section 302 IPC and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of six months. For the offences under Section 201 of Indian Penal Code, he was sentenced to undergo rigorous imprisonment for three years. The term of substantive sentence were to run concurrently. Set off for the period of remand was allowed.

(2.) THE incident which gave rise to this case is alleged to have occurred on 19.6.2008 at about 10.30 pm. On the next day, on 20.6.2008, PW2 who owned a building in which rooms were let out for casual labourers including the accused was informed about still body of the deceased in the room in the first floor of the building. PW2 came to the place and found the deceased Palaniswami lying dead in a pool of blood. He informed the police. Police came to the spot. PW2 thereafter laid Ext.P5 F.I.Statement which was recorded by PW12, who registered crime as per Ext.P17 F.I.R. PW13 took over the investigation. He conducted the inquest and prepared Ext.P12 Inquest Report. He seized articles found at the place of incident and also sought assistance of the Scientific Assistant, PW7 to collect materials from the place. The body was thereafter sent for autopsy. PW6, Doctor conducted autopsy and prepared Ext.P13 Post Mortem Certificate. PW13 recorded the statement of the witnesses and the articles seized during investigation were sent for chemical analysis and after completing investigation, charge was laid before court.

(3.) THE learned counsel appearing for the appellant contended that the court below has erred both on facts and in law in coming to the conclusion that the accused has committed the offence. According to the learned counsel, there is absolutely no legal evidence to connect the accused with the crime alleged by the prosecution. Learned counsel drew the attention of this court to the fact that court below ought not have placed reliance on the evidence of PW3 and come to the conclusion that accused was seen standing near the place of incident with Mo1 pickaxe in his hand. Learned counsel pointed out that the evidence of PW3 has to be read as a whole and on reading the evidence of PW3, it is clear that he is not speaking the truth and no reliance could be placed on his evidence at all. If one is to eschew the evidence of PW3, there are only certain circumstances relied on by the court below to come to the conclusion that the offence has been committed by the accused. Learned counsel went on to point out that the first circumstance is regarding the incident alleged to have taken place at 4 pm. Prosecution case according to the learned counsel is that the accused and the deceased Palaniswami picked up quarrel at about 4 pm and deceased had toppled a bucket containing water in the room of the accused which has annoyed the accused. Learned counsel pointed out that there is absolutely no evidence to establish the said incident and no witness speaks about having seen the said incident at all. Learned counsel went on to point out that the further circumstances relied on by the prosecution do not show that the accused had anything to do with the incident. It is pointed out that the evidence of PW3 would at best show that he had intervened during the talk between PW1 and accused about the deceased and nothing more than that. There is nothing to show that the accused had gone to the room of the deceased as alleged by the prosecution on the date on which the incident is said to have occured as contended by the prosecution. Learned counsel went on to point out that considerable reliance has been placed by the court below on the false explanation offered regarding the injury said to have been sustained by the accused on his finger. According to learned counsel, first of all, there is no evidence to show that any injury was sustained by the accused in his finger. He was not subjected to any medical examination nor was he questioned as to how he had sustained the injury. Even assuming there is such injury, that could not have been relied on as a circumstance to hold against the accused. The next circumstance relied on by the court below according to the learned counsel is that ashes were recovered from the room of the accused which according to the prosecution was as a result of burning of blood stained shirt of the accused and plastic paper used for wiping of the blood. There is absolutely no evidence according to the learned counsel to show that the shirt worn by the accused was burnt or that he had wiped the blood with a plastic paper and had burned it. Ashes collected from the alleged room of the accused were not subjected to chemical analysis and no chemical tests were conducted to arrive at a finding that ashes so recovered from the room were that of burned plastic paper used for wiping off the blood and the shirt alleged to contain blood stains. Learned counsel then went on to point out that the next circumstance relied on by the prosecution is that accused has made himself scarce since the incident and was arrested only on 30.6.2008. Learned counsel went on to point out that there is absolutely no evidence to show that accused was not present in the place. May be he was arrested only on 30.6.2008, but there is no legal evidence at all to show that the accused had concealed himself and had kept himself away from law. Another circumstance relied on, according to the learned counsel, is the presence of blood stains in the lungi said to have been worn by the accused at the relevant time. Apart from challenging the evidence regarding the seizure of the lungi, it was also pointed out that even assuming it was the lungi of the accused it only shows that it had blood stains but its origin was not determined at all.