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CASE NO.: Appeal (crl.) 5-76 2000

PETITIONER: K.V.  CHACKO @ KUNJU

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       07/12/2000

BENCH: S.N.Hegde, M.B.Shah

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J       J U D G M E N T

     SANTOSH HEGDE, J.

     The  appellant has preferred these appeals against the judgment of the High Court of Kerala at Ernakulam dated 28th March,  2000  delivered  in Criminal Appeal  Nos.105/98  and 642/98.    Criminal  Appeal  No.105/98   was  filed  by  the appellant against the conviction and sentence imposed on him by  the learned Sessions Judge, Kottayam Division, Kerala in Sessions  Case No.60 of 1993 dated 29.12.1997 wherein he was found guilty of offences punishable under Sections 449, 302, 397  and  201 IPC and was sentenced to undergo  imprisonment for  various  terms  including imprisonment for  life  under Section 302 IPC.  Criminal Appeal No.642/98 was preferred by the  State  of  Kerala  against the  said  judgment  of  the Sessions  Court  for not awarding capital punishment to  the accused  in  the said case.  The High Court heard  both  the appeals  together and as per its impugned judgment dismissed the  appeal of the appellant and allowed the State appeal by coming  to the conclusion that the offence committed by  the appellant  deserved  nothing short of capital punishment  to meet  the  ends  of justice.  Accordingly, it  enhanced  the sentence  from  life  imprisonment to death  sentence.   The appellant  has  preferred the abovesaid appeals against  the said  judgment  from jail.  Mr.  Kh.  Nobin  Singh,  learned Advocate,  has appeared as an amicus curiae while the  State is represented by Mr.  A.S.  Nambiar, learned senior counsel and   Mr.   Gracious  Kuriakose,   learned  advocate.    The prosecution case as presented before the trial court is that on  6.8.1988  at about 3.20 a.m.  the appellant entered  the house  of  Johnny,  a  resident of  Thadiyampadu  in  Idukki District  by making an opening near the kitchen door of  the house  where  deceased Johnny was sleeping with  his  family members,  namely, his wife Mariakutty, daughter Rani aged 15 years,  daughter  Honey  aged 9 years, and son Sony  aged  7 years.  It is stated that the appellant immobilised the said victims  by  hitting  them on their heads by  using  an  axe (MO-12)  and  removed  the  jewellery  worn  by  the  female

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victims,  so also a revolver (MO- 13) and cartridges (MO-14) belonging  to Johnny along with currency notes worth Rs.60/- which  were  inside the drawer of a table in the  house  and thereafter with a view to destroy the evidence of the crime, poured  diesel oil which was kept by Johnny in a can in  his house,  set fire to the house and decamped with the booty so collected.   It is the further case of the prosecution  that Beeran  (PW-17), who happened to pass by the house of Johnny at  about  that  time,  came to notice the  flames  of  fire emanating  from the said house, hence, ran to a nearby night shop  situated at Thadiyampadu junction and informed  Ismail (PW-1)  and some other head-load workers who were with PW- 1 and  brought  them  to the house of Johnny.  It  is  further stated that on breaking open the front door by these people, they  noticed a young girl who was later identified as Rani, lying  and moaning but before any help could be rendered  to her,  the roof of the house fell on her and their efforts to save  her  failed.   It  is further stated  that  when  PW-7 Muralidharan  S.I.  of police arrived at the spot, the house was  completely  burnt  and he with the help of  the  people present  including the fire force personnel, extricated  the completely  charred  bodies of the abovesaid 5 victims  from the  burnt debris.  PW-7 then recorded the statement of PW-1 which  is marked as Ex.  P-1, the first information.   Based on  the said information, Crime No.151/88 was registered  at Idukki  Police  Station  vide Ex.  P-7.  It is  stated  that PW-13,  Thulasidas  conducted the further investigation  and held  inquest  on the dead bodies as per Ex.  MO-11 as  also the  spot Mahazar.  On his request a team of doctors led  by the  District  Medical  Officer  arrived at  the  scene  and conducted  the  post  mortem.  The report of the  said  post mortem  signed  by  one  Dr.  Dias was marked  as  Ex.   P-9 series.    As  per  the  said   report  the  doctor  gave  a provisional  opinion  that  the cause of death  was  due  to burning  and  reserved  his  final opinion  till  after  the receipt  of  the  report of Chemical Examiner  to  whom  the viscera were sent for examination.  The said PW-13 is stated to  have  examined 116 witnesses and gave his report to  the Superintendent  of Police on 6.9.1988 to the effect that the death  of these victims was due to fire accident.  Based  on his report the case was closed as deaths due to accident.

     It  is  the  further case of the prosecution  that  on 7.8.1988  PW-28  K.S.Augustine arrested the appellant in  an unrelated  case  and seized a country-made revolver  (MO-13) and  under  a Mahazar Ex.  P-18, the accused was  prosecuted for  the offences of resisting arrest and illegal possession of arms under Sections 332, 324, 506 IPC and 25(1)(a) of the Indian Arms Act before the JFCM Court, Adimali.

     While  the incident of 6.8.1988 involving the death of Johnny  and his family lay closed as an accidental death, in the  year  1992  PW-43  M.V.  Thomas came  to  know  through reliable sources that the appellant was involved in the said case  of death of Johnny and his family, and having come  to know that this appellant was in custody in some other cases, he  filed  an affidavit and a report before the JFCM  Court, Chalakkudy to obtain custody of the appellant to interrogate him.   The  said  custody was ordered by the  Magistrate  on 4.5.1992 and the appellant was handed over to the custody of PW-43  from  4.5.1992 to 11.5.1992.  It is also stated  that the  accused was interrogated by PW-43 and Superintendent of Police,  Crime  Branch,  by name K.I.  Michael,  PW-45,  and during  the course of questioning on 11.5.1992 the appellant admitted  before  these  persons that he had  committed  the

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murder  of Johnny and his family and he was also involved in 4  other  crimes,  namely,  SC  No.77/93,  SC  No.26/93,  SC No.29/93  and SC No.47/93.  Since the appellant was required for  further  investigation in view of the said  confession, PW-45  filed another report and an affidavit for the further custody  of this appellant which was granted till 25.5.1992. The prosecution further states that on the statement made by the appellant which was marked as Ex.  13-A, he was taken to the  house  of  Johnny  at Thadiyampadu at  10.30  a.m.   on 25.5.1992 and on being pointed to the well by the appellant, PW-45  requisitioned  the help of one George to recover  the axe (MO-12) said to have been thrown by the accused into the said  well.  The prosecution also relied on the evidence  of PW-16  Mathew  and  PW-18  Kunhu Achari  to  show  that  the appellant  was  in  Thadiyampadu  the  night  preceding  the incident  i.e.   on  5.8.1988.   They  also  relied  on  the evidence of PW-27 Elikutty, aunt of the accused to show that a few days before and after the incident, the appellant, who was  her  nephew,  was  visiting her and  stayed  with  her. Prosecution also relied on the evidence of PW-20 Thomas, the taxi  driver, to establish the activities and whereabouts of the  appellant  on  7.8.1988.   PW-15   Annamma  who  was  a neighbour  of Johnny being the occupant of a house  situated hardly 50 meters away from Johnnys house, identified MO-13, the  axe, as belonging to her and which was found missing  a couple  of  days  after  the   incident  in  question.   The prosecution  has  not examined Dr.  Dias who  conducted  the first  post mortem on the bodies of the victims since he was not  available but has marked his report as Ex.  P-9  series through the evidence of PW-9 Dr.  M.N.Vijayan.  It is stated by the prosecution that on being satisfied that the death of Johnny  and  his  family members was due to  homicidal  act, PW-45   requisitioned  the  services  of  PW-39,   Dr.    C. Radhakrishnan  to give his opinion as to the cause of  death of  these  victims and, accordingly, with the permission  of the  authorities  concerned the bodies of the  victims  were exhumed  on 1.6.1992 and during the forensic examination  of the bodies, the said doctor noticed in the skull of Johnny a fissured  fracture  involving the right parietal bone  which was  extending  to  the floor of the  right  middle  cranial fossa.   Similar fractures were also noticed in the skull of Mariakutty.   The said doctor also opined that the fractures noticed by him could have been caused by use of a blunt edge of  weapon  like MO-12.  He also stated that Dr.   Dias  who conducted the previous post mortem had committed many errors and  did  not do a proper professional job.  He opined  that the  deceased  Johnny  and  his family  members  suffered  a homicidal  death.   It  is based on the  evidence  collected during the investigation conducted for the second time under PW-46  that the appellant was sent up for trial and both the courts  below  having noticed that the prosecution  case  is based on purely circumstantial evidence, proceeded to accept the   prosecution  case  and   convicted  the  appellant  as aforesaid  and  the  appellant  is now before  us  in  these appeals.

     The law regarding basing a conviction by the courts on circumstantial  evidence is well settled.  When a case rests upon  circumstantial  evidence, such evidence  must  satisfy three  tests:  (1) the circumstances from which an inference of  guilt is sought to be drawn, must be cogently and firmly established;   (2)  those  circumstances   should  be  of  a definite  tendency unerringly pointing towards guilt of  the

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accused;   (3) the circumstances, taken cumulatively, should form  a  chain 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.  The circumstantial evidence  in  order  to  sustain  conviction  must  also  be complete   and  incapable  of   explanation  of  any   other hypothesis  than  that  of the guilt of  the  accused.   The circumstantial  evidence should not only be consistent  with the guilt of the accused but should be inconsistent with his innocence.   (See  Gambhir v.  State of Maharashtra {1982  2 SCC  351}).   Bearing in mind the above principles, we  will examine  the material on record to satisfy ourselves whether the  test laid down by this Court in Gambhirs case  (supra) has  been  properly  applied  or not by  the  courts  below. Having examined the prosecution case in these appeals in the light  of  the above judgment of this Court, we are  of  the opinion  that  if  the  prosecution  is  able  to  establish successfully  the recovery of Mos.  12 and 13 then it should succeed  in  obtaining a conviction against  the  appellant, should  it  fail then the prosecution cannot  establish  the chain  of circumstances against the appellant  successfully. Therefore,  we  will  first take up  for  consideration  the alleged  recovery  of MO-13 from the appellant.  It  is  the prosecution  case that pursuant to an arrest warrant  issued by  the  Magistrate,  Mavuttupuzha  in CC  No.224/87  in  an unrelated  case,  PW-28  was  entrusted   with  the  job  of execution  of this warrant.  Pursuant to the same, he  along with  Constable  Mathew CW-42 were on the look out  for  the appellant,  and  that on 7.8.1988 they saw the appellant  at about   10.30  p.m.   in  front   of  Rajeshwari  Hotel   in Kunchithanni  and when they tried to arrest him, he resisted by  threatening them with the revolver MO-13 which he pulled out  from  a  suitcase carried by him.  The  appellant  was, however,  overpowered  and  arrested  by  said  PW-  28  who recovered  MO-13  along  with the suitcase  containing  some clothes and Rs.1,500/- in currency notes.  It is also stated that  during the course of his arrest the appellant bit said Mathew  causing injury on his chest, therefore, a case being CC  No.239/89 under Sections 332, 324, 506(ii) IPC read with Section  25(1)(a) read with Section 3 of the Indian Arms Act was  filed  by  Vellathooval Police before the  JFCM  Court, Adimali,  in which case the appellant was acquitted.  It  is the  prosecution  case that after the closure of that  case, MO-13  was kept in safe custody with A.R.  Camp, Idukki  and after fresh investigation was started by PWs.43 and 45, they came  to know that MO-13 belonged to deceased Johnny and  it was  stolen  by the appellant after he committed crime.   In this  regard,  prosecution  has relied on  the  evidence  of PWs.19  and 31 to prove the ownership of MO-13.  The  courts below  have accepted this case of the prosecution, as stated above.

     However,  it  should be seen that this very MO-13  and its recovery from the appellant was the subject matter of CC No.239/89  before  JFCM Court, Adimali.  The  Magistrate  in that case while acquitting the appellant as per his judgment Ex.X-11  framed the following points for consideration:   1. Whether  the accused voluntarily caused hurt to PW-3  Police Constable  for preventing him from discharging the  official duty as alleged by the prosecution.  2.  Whether the accused threatened   PW-1   and  PW-3   for  preventing  them   from discharging   their   official  duty  as  alleged   by   the prosecution.   3.   Whether  the  accused  possessed  M.O.I. revolver  without any licence or authority as alleged by the prosecution.   4.   The  offence  if any  committed  by  the

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accused and the sentence or order.

     While  discussing  the  above   points,  the   learned Magistrate   observed  :   If   actually  the  accused  was possessing a revolver and threatened the police officials by using  it the local witnesses also would have witnessed  the same.   It  is also worth mentioning here that  the  alleged incident  took  place  in a town and even according  to  the prosecution  many local persons witnessed the incident.   In the light of the above discussion I find that the interested versions of PWs 1 and 3 cannot be relied on safely.  Even if there might have happened some incident before the arrest of the  accused that need not be as alleged by the prosecution. There  is  no sufficient evidence before the court  to  show that  the  accused  was possessing M.O.I.  revolver  or  the police  recovered  the same from the accused.  Hence I  find that  the  prosecution has not proved the case  against  the accused.  (emphasis supplied) Based on this finding of  the Magistrate,  it was argued on behalf of the appellant before the  courts  below  that  in view of  this  finding  of  the Magistrate  the recovery of MO-13 from the appellant on  7th of  August, 1988 cannot be believed.  Both the courts  below have  rejected  this  argument.  The High  Court  especially while  doing  so  held that the point involved in  the  said judgment  was  not  the same as is involved in  the  present case.   The High Court even went to the extent of  observing that in the present case the accused is not being prosecuted for either possessing or using MO-13 as a weapon of offence. By  this observation, in our opinion, the High Court totally misdirected itself as to the relevancy of the finding of the Magistrate  because  the very question whether MO-13 was  in fact seized from the appellant on 7th of August, 1988 was an issue  before  the Magistrate in that case and the  same  is also an issue in this case.  In the judgment as per Ex.X-11, the  learned  Magistrate disbelieved the evidence  of  PW-28 who,  in that case, was examined as PW-1.  The Court in that case  also  disbelieved  the recovery of MO-13  in  specific terms  from  the appellant.  Therefore, the said finding  of the  Magistrate is a relevant fact in deciding whether MO-13 was recovered from the appellant immediately after the crime so  as to implicate the accused in this case.  This  finding of  the  Magistrate ought to have been given due  weightage, hence  the courts below committed a grave error in rejecting the  findings of the Magistrate as irrelevant.  If this very evidence of PW-28 as to the recovery of MO-13 is rejected as unreliable  in  that case, in our opinion,  the  prosecution should  establish  convincingly why the very  same  evidence should be believed in this case.  This having not been done, the  evidence of PW-28 remains to be doubtful.  This  apart, there  are  certain  other  probabilities  which  should  be noticed  when  we  consider the prosecution case as  to  the recovery of MO-13.  It is in evidence that immediately after the  death of Johnny on 6.8.1988 all the neighbouring police stations were informed of the said crime and PW-28 admits as also  having received such information.  PW-43 at that point of  time  was a Circle Inspector at Adimali  Police  Station which  had  the jurisdiction over Rajakkad  Police  Station, hence  we  can  reasonably  presume that  he  too  had  this information.   It  is also in evidence that PW-20  the  taxi driver  with  his friends was also arrested on 7.8.1988  for having  taken the appellant to various places in his taxi on the said date.  This witness had told the police that he had taken  the  appellant  to  the house of Elikutty  PW  27  at Chelachuvadu  near  about  the house where  Johnny  and  his family were murdered.  He also stated that the appellant had

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picked up the suitcase from that house on the evening of 7th August, 1988 and it is the case of the prosecution as stated by  PW  28  that when he tried to arrest  the  appellant  he pulled out the revolver MO-13 from the said suitcase.  PW-28 had  also  the knowledge that the appellant was a  notorious criminal  having been involved in many a serious crime  like robbery  and  dacoity and was registered as K.D in  Rajakkad Police  Station.  Therefore, it is surprising that either PW 28  or  his superiors did not suspect that MO-13 could  have been  stolen, and did not think it fit to investigate as  to the  origin  and ownership of this revolver.  This  admitted failure on the part of PW 28 and his superiors at that point of time creates a serious doubt in our minds as to the truth of  recovery of MO 13 from the appellant and its  ownership. Defence  has suggested to both PWs.43 and 45 that MO-13 is a weapon  which was with Police having seized the same in some other  case and which was planted on the appellant to obtain a  more severe conviction against him for having assaulted a Police official in CC No.224/87 and having failed there, the same  revolver is now being used to implicate the  appellant in  this case.  This suggestion is, of course, denied.   But the  fact  remains  that  in the  background  of  the  facts narrated  by  us, the recovery of MO-13 from  the  appellant remains to be doubtful.

     The  prosecution  in  this  case  has  relied  on  the evidence  of  PWs  19 and 31 to establish the  ownership  of Johnny  in respect of MO-13.  It is seen that PW-19  Kamalan stated  that  he had seen a revolver in the hands of  Johnny which  he thought was a playing gun, and the said pistol was similar  to MO-13.  In his cross examination, he stated that he was shown MO-13 about two months prior to his evidence by the  Crime  Branch Police in their office at  Kottayam.   He also stated that the Crime Branch Police has specially asked him  whether any weapon was seen in the hands of Johnny  and then  he  remembered having seen the gun in his  hands.   He further stated that even though he had mentioned this to the police  at  the time he does not know why the same  has  not been  recorded, while PW-31 Omana who is a sister-in-law  of deceased Johnny stated that she had seen MO 13 revolver with Johnny  who used to keep the same in a drawer of a table  in his  house.  She admits that she has not told anybody  about Johnny  having a revolver until the same was shown to her in the  court  even though the police in fact first  questioned her  about  2  to 3 days after the death of Johnny  and  his family.   In  the  background in which the  prosecution  has produced  its  evidence in this case as to the ownership  of Johnny  of  MO-13,  we  find it difficult  to  accept  these evidence which has come on record for the first time after 4 years of the incident.  Hence, we are reluctant to place any reliance  on the same and hold that the prosecution has  not established  either MO-13 belonged to Johnny or the same was recovered from the appellant.

     We will now consider the prosecution case in regard to the  recovery  of  MO-12, the axe.  It is the  case  of  the prosecution  that  when  PWs.43   and  45  interrogated  the appellant  on 11.5.1992, the appellant during the course  of his statement to the Police had stated that he had concealed the axe MO-12 which was used in the commission of this crime by  throwing  the  same into a well in the compound  of  the house of deceased Johnny and that he would show the place if taken  to  the house of Johnny.  This part of the  statement made  to  the  Police  is marked as Ex.  13-A.   It  is  the further case of the prosecution that PW-45 on 21.5.1992 took

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the  appellant to the house of Johnny at Thadiyampadu and on the  appellant pointing at the well where he allegedly threw the  axe  when  PW-45 requisitioned the help of  one  George (CW-37)  to  recover  the  said axe.   Said  George,  it  is alleged,  got  into the well and recovered MO-12,  the  axe, which was then completely rusted and covered with mud.  This recovery is evidenced by Mahazar P-13 to which PW-22 Jose is the  witness.   To connect the use of MO-12 with the  crime, the  prosecution has examined PW-15 Annamma who resided in a house  about 50 meters away from the house of Johnny and who stated  before  the court that MO-12 belonged to her  family for  a  number of years and the same was being kept  in  the open  verandah  of her house.  She stated that she  came  to know  that  the axe was missing 2 days after the  murder  of Johnny  but she did not tell anybody about the loss of  this axe.   She  admits that there is no specific  identification mark  on  MO-  13, and it is similar to other axes  used  by other  agriculturists.   The  High Court  has  accepted  her evidence  by complimenting her power of keen observation and memory  without considering the fact that for four years the witness had not stated to anyone that someone had taken away her axe or that there was no reason to identify and say that the said axe belonged to her.  Then, the prosecution through the  evidence  of PW-14, V.S.  Parameswaran Nair,  the  then Asstt.    Director,  Biology   Division,  Forensic   Science Laboratory,   Thiruvananthapuram,  tried  to   establish   a connection  between  the crime and MO-13.  The said  witness stated  that when he examined the axe though it was  rusted, he was able to trace some blood stains on it.  He has denied the  suggestion  of  the  defence   that  the  detection  or existence  of blood stains on the axe which was immersed  in water  for  4  years  is not  possible,  by  giving  certain scientific  explanation for the same.  His evidence does not establish  beyond  all reasonable doubt that this MO-12  was used  in assaulting Johnny and his family because he has not been able to trace any human blood on MO-12.  Even though he found some blood, he was unable to analyse the said blood to find  out whether the same belonged to human beings or  not. In the absence of any such finding, in our opinion, from the evidence  of  PW-14,  it  is not possible  to  come  to  the conclusion  that the axe in question was really used in  the assault  on  Johnny and his family members.  We may note  at this stage that there is no direct evidence to connect MO-12 with  the death of Johnny and his family members.   However, to  further connect this MO with the crime, the  prosecution has  examined PW-6 Luckose who states that there were  blood clots in the head of Johnny which he had noticed at the time of  inquest.   It  is  extremely difficult  to  accept  this version  of PW-6 because either in the inquest Mahazar or in the  post  mortem report no trace of blood was found in  the head of Johnny or other members of the family.  This witness though  had  given  a complaint as per Ex.  X-1 a  few  days after  the  incident to the Chief Minister, did not  mention this fact in the said complaint nor has he stated before the investigating  agency in the first round of litigation as to the  existence of blood clots.  That apart, as seen from the post mortem report Ex.  P-9 series, the doctor who conducted the post mortem then did not notice any external head injury much less any blood clots.  For all these reasons we are not in  a  position to place reliance on the evidence  of  PW-6. The  prosecution  in  this  regard has also  relied  on  the evidence of PW-39 Dr.  C.  Radhakrishnan who in his evidence has  stated  that  the skulls examined by him  had  suffered fractures  and he was of the opinion that the said fractures could  be caused by the use of blunt edge of MO-12.  In  our

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opinion,  this  evidence also does not help the  prosecution because  in  the original post mortem no external injury  to the  head  was  noticed nor was any blood clot  or  external injuries  were  noticed  in  the inquest  Panchnama  of  the bodies.  In the absence of any such recorded injuries, it is difficult  to accept the evidence of PW-6 or that of  PW-39. Both  the  courts below have placed strong reliance  on  the evidence  of  PW-39 which only goes to show that the  skulls examined  by  the said witness contained fractures which  in his  opinion were ante mortem.  Per contra, Ex.  P-9  series which is the first post mortem report, does not refer to any external  head injury much less any bleeding injury.  It  is the  case  of the prosecution that the doctor who  conducted the  first post mortem did not do a professional job.   But, we  cannot  accept this explanation on the face of it.   Dr. Dias  who signed the said post mortem report as per Ex.  P-9 series,  has  not  been examined by the prosecution  on  the ground  that he was not available for examination.   Without examining  Dr.   Dias,  it  will be unfair to  come  to  the conclusion  that  the  contents of Ex.  P-9  series  do  not reflect  the  true state of affairs as it existed  when  the first  post  mortem was conducted.  Similarly, without  such examination  of the said doctor, it will not be possible for us to accept the evidence of PW-39 to come to the conclusion that  Dr.   Dias did not do a proper professional job.   The benefit  of  doubt, which arises out of the two  conflicting post  mortem  reports,  in  our  opinion,  must  go  to  the appellant.   Therefore, we are unable to accept the  finding of  the  courts below that the prosecution  has  established beyond reasonable doubt that MO-12 was used by the appellant in execution of the crime, as stated by the prosecution.  We will  now examine the other circumstantial evidence  adduced by  the prosecution in this case.  To establish the presence of  the appellant in Thadiyampadu, the prosecution relies on the  evidence  of  PWs.16 and 18 - Mathew and  Kunhu  Achari respectively.   PW-  16  states  that he  was  a  friend  of deceased  Johnny and used to meet him regularly to go to the local  arrack  shop  to  take drinks.   He  stated  that  on 5.8.1988  also he went with the deceased to the arrack  shop and  while  they were consuming liquor he saw the  appellant coming in the company of PW-18 to consume liquor.  He states that  at  about 8 p.m.  he and the deceased Johnny left  the arrack shop and at about the same time, he saw the appellant and PW-18 also coming out of the said shop.  He came to know the  next day that Johnny and his family had died in a  fire accident.   PW-18  Kunhu  Achari  says   that  he  knew  the appellant  and was in friendly terms with him and he saw him in the evening of 5.6.1988.  He was invited by the appellant to  have  drinks  with him and they also went  to  the  same arrack  shop  where  PW-16  and  the  deceased  Johnny  were consuming  liquor.   This  witness  says  that  he  saw  the deceased  in the said shop and after some time the  deceased with  PW-16  went  away, and at about the  same  time,  this witness  and the appellant also left the said shop and  next morning  he  came to know about the death of Johnny and  his family.   From  this the prosecution wants to establish  the presence  of the appellant near Thadiyampadu in the night of 5th  August,  1988.   PW-27  is Elikutty,  an  aunt  of  the appellant  who has stated that the appellant had come to her house  two days before the incident, stayed with her and  on 7th  August,  1988 he had gone out and came back to  collect his  suitcase.  From this the prosecution wants to establish that  the  appellant was near about Thadiyampadu on the  day after  the  incident.   It  is  seen  from  the  prosecution evidence  that the appellant was no stranger to this  place.

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On  the contrary, he was a frequent visitor.  He has an aunt in  Chelachuvadu which is a few kilometers from the place of incident.   The  appellant  was known to the  local  people. Therefore,  assuming  the prosecution evidence  led  through PWs.16,  18  and  27 is true, there is  nothing  exceptional about the appellants presence in Thadiyampadu so as to draw any   inference   adverse  to   the  appellant,   and   this circumstance  by  itself would not be sufficient to come  to the  conclusion  that the appellant was responsible for  the death of Johnny and his family members.  The prosecution has also  relied  upon the evidence of PW-12 Jose  to  establish that  Johnny  had  sold  his mini lorry  for  which  he  had received  Rs.25,000/-  as an advance and he was to  get  the balance  sum of Rs.22,000/- on 5.8.1988 but the same was not paid  to  him on that day.  PW-16 Mathew states that on  the day  he  went  with the deceased to the local  liquor  shop, Johnny  was carrying a paper bundle containing biscuits  for his  children.  From this, the prosecution wants to draw  an inference  that the appellant might have thought that Johnny had  received the balance consideration of Rs.22,000/- which he was carrying in the paper packet and with a view to steal that money he committed the murder of Johnny and his family. From  the evidence of PWs.12 and 16 and for that matter from the  other  evidence  led by the prosecution,  there  is  no material  to arrive at the conclusion that the appellant had the knowledge that Johnny had sold his mini lorry and he was to  get  the  balance  consideration on  5.8.1988.   In  the absence of any such material to infer that the appellant was under  an impression that Johnny had substantial cash in his house, is wholly erroneous and baseless.  Inference so drawn must be held to be without foundation.  Therefore, these two circumstances  of  the appellants presence in  Thadiyampadu and  Johnny  having  sold  his  mini  lorry  cannot  be  the circumstances  to conclude that the appellant committed  the murder of Johnny and his family.

     The  courts  below  have  also  failed  to  take  into consideration   two   important   improbabilities   in   the prosecution  case.   It is the case of the prosecution  that the  appellant gained entry to the house of the deceased  by making  a hole in the wall next to the kitchen door.  It has come  in evidence that the walls of the house of Johnny were constructed with bricks and were strong.  If that be so, the prosecution has not established how the appellant could have made  a hole in such a wall without noise and without waking up  the  inmates  of  the house.   This  inference  of  ours improbabilises the possibility of the victims being attacked when  they  were  asleep.   The next  improbability  in  the prosecution  version is that the crime was committed in  the manner  alleged  by  the prosecution or that  the  appellant alone could possibly have committed it in the manner alleged because  the house of Johnny is a two-room accommodation and such an attack on one victim cannot go without awakening the other  inmates.  If that be so, the victims who were yet  to be  attacked, in all probability, would have cried for  help which  would  have  certainly awakened  the  neighbour  like PW-15.  The prosecution has not adduced any evidence to show any  such hue and cry were raised by the victims.  A  feeble attempt  was made through PW-15 to say that she did wake  up in  the  middle of the night that day after she was told  by her  father  that  he had heard some noise outside  but  she stated  that after satisfying herself that there was no such cause  for noise, she went back to sleep.  The fact that the incident  of assaulting five victims by a lone attacker  has gone unheard by anybody in the vicinity, also improbabilises

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the  prosecution  case as to how the crime in  question  was committed.

     Having  carefully examined the evidence in this  case, we  are  of the opinion that the prosecution has  failed  to establish  the  circumstances relied by it to establish  the guilt of the appellant.

     For  the reasons stated above, we allow these appeals. The  judgment  and convictions of the courts below  are  set aside.   It  is  seen from the impugned  judgment  that  the appellant  is already serving another life sentence in  some other  case.   Therefore, there shall be no order as to  his release.   However, if the appellant is not required in  any other  case  or  to serve any other sentence,  he  shall  be released from the custody forthwith.