STATE OF KERALA Vs. KUTTAPPAN

JUDGEMENT

(1.) THIS is an appeal filed by the State against acquittal of the accused in S.C.No.78 of 1999 on the file of the Additional Sessions Judge, Kottayam. The prosecution case as narrated in the appeal memorandum is as follows:

(2.) THERE is no eye -witness to the incident and prosecution relied on circumstantial evidence. To convict an accused on the basis of circumstantial evidence, the chain of circumstances must be so complete without any missing link or reasonable doubt. Prem Thakur v. State of Punjab, AIR 1983 SC 61. Motive is the first circumstance relied on by the prosecution. When there is no direct evidence and case is based on circumstantial evidence, the motive for committing crime on part of the accused assumes greater importance as held by the Apex Court in Tarseem Kumar v. The Delhi Administration, 1995 Crl.L.J. 470 (SC). P.W.2 was living with the deceased as his wife even though there was no legal marriage. According to the prosecution, when the deceased was earlier arrested in connection with an N.D.P.S. case, P.W.2 got the help of the accused in releasing him and thereafter the accused was also living with them. Accused asked the deceased to return the amount spent for releasing him from the custody and that is the motive. P.W.2 denied all these allegations. P.W.2 also stated that the accused was not living with them and she alone was living with the deceased. No other evidence was adduced to prove motive. In the above circumstances, the learned Sessions Judge correctly found that motive is not proved. We agree with the above finding.

(3.) THE last circumstance relied on by the prosecution is the Section 27 recovery. When P.W.2 was examined, during cross -examination she stated that a blue kaily was taken from her house along with a knife. The blue kaily (M.O.1) was shown to her and she identified the same as the one taken from her house. It is true that, according to the Investigating Officer, on the basis of the confession a kaily was recovered from the courtyard of Devasia near the place of incident and recovery was also attested by P.W.8 Panchayat Member. We are unable to accept the same as P.W.2 deposed that M.O.1 was recovered from her house by the police and that part of the evidence is unchallenged. M.O.1 and M.O.8 were recovered under the same mahazar. Veracity of the recovery is doubtful as M.0. 1 was recovered early by the police from the house of P.W.2. M.O.9 label and M.O.21 stone were taken from the open place. No mahazar witnesses were examined for the recovery of M.O.22 chisel (cobbler's knife), M.O.6 watch and strap. It is stated that they were recovered on the confession of the accused from a wooden box kept beside a footpath near Thirunakkara. There is no evidence to show that who owns the box. The mahazar witnesses were not examined. In the alleged confession statement proved by the Investigating Officer authorship of the concealment is not mentioned. With regard to recovery of M.O.21, it was stated by the accused to the Investigating Officer as follows: With regard to M.O.6 (series) watch and strap and M.O.22 chisel it is stated as follows: