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PETITIONER: MUJEEB & ANR.

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       29/11/1999

BENCH: G.B.Pattanaik, M.Srinivasan

JUDGMENT:

     PHUKAN, J

     This appeal is directed against the Judgment and Order dated  24.01.97  passed  by  the High  Court  of  Kerala  in Criminal  Appeal  No.  485/93.  The High Court  allowed  the appeal  filed by the State by setting aside the judgment  of the  Sessions  Judge, Kozhikode Division dated  26th  March, 1993 in Sessions Case No.  9/92.  The learned Sessions Judge acquitted  accused Mujeeb @ Mujeeb Rahman (A1),  Johnson(A2) and Akbar (A3) who were charged under Sections 302, 392, 201 and  120-B IPC read with Section 34 IPC.  The High Court  as stated  above  allowed  the appeal filed by  the  State  and convicted  all  the three accused under the above  Sections. The present appeal has been filed only by two accused namely A1  and A3.  A2 is not before us.  The prosecution case  was that  on  30.03.91 at about 11.30 a.m A1  reached  Koyilandy Taxi  Stand, hired the Tourist Taxi (Ambassador Car)  driven by  Balan of Thazha Valappil.  A1 went in that car to  Ashar lodge  in Koyilandy where the other accused were staying and all  of  them proceeded in the car to Wynad and  spent  some time  in Pookode lake.  Thereafter, they visited  Thirunelli Temple  and  Mananthavadi.   While they  were  returning  to Thamarasserry,  it was alleged by the prosecution that  soft drink  Fruitymixed  with sleeping pills was given  to  the driver   Balan   and  also   intoxicating   liquor.    After immobilizing  and  removing him from the drivers  seat,  A1 drove  the  car to Thamarassery and Eangampuzha.   At  about 11.30  p.m.   they  strangulated  the driver  Balan  with  a thorthu  and proceeded to Puthuppadi .  They also took  away the  purse  and  watch  from deceased  Balan  and  with  the intention  to cause disappearance of evidence of murder  and robbery  they  threw  the  dead  body  of  deceased  at  one kilometer  west  of 9th point curve at Wynad  Ghat  Section. The accused took the car to Mysore and Bangalore and altered the  registration  number and also sold the watch  and  some other  things  of the deceased at Mysore and  stayed  there. They  returned  to Sultans Battery and on 04.04.91  in  the evening  they entrusted the car for service in an automobile workshop  informing that they would take the car on the next day morning.  The owner of the workshop found that there was alteration  of  registration number of the car  and  getting suspicious he informed the sub-inspector of police, Sultans Battery.  In the morning of 05.04.91 the sub-Inspector along with  other  police personnel came to the workshop in  mufti and  when  the  accused  came  to  the  workshop  they  were apprehended  and taken to the police station.  We have heard

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the  learned counsel for the parties.  In absence of  direct evidence  prosecution  tried  to   prove  the  case  through circumstantial    evidence.    When   a   case   rests    on circumstantial  evidence, such evidence must be cogently and firmly established.  These circumstances should form a chain pointing  towards  the  guilt of the accused  and  the  same should  be  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.  If any link in the chain  is  missing  the  guilt  of  the  accused  cannot  be established.

     In  Mohan Lal Pangasa Versus The State of U.P AIR 1974 SC  1144, this Court held that it is trite law that when the evidence  against an accused person, particularly when he is charged  with a grave offence like murder, if it consists of only  circumstances and not direct oral evidence, it must be qualitatively  such that on every reasonable hypothesis  the conclusion  must  be  that  the   accused  is  guilty;   not fantastic  possibilities  nor freak inferences but  rational deductions  which  reasonable minds make from the  probative force of facts and circumstances.

     In Umedbhai Jadavbhai Versus State of Gujarat AIR 1978 SC  424  = SCR 1978 (2) 471 this Court held that it is  well settled  that  in a case resting on circumstantial  evidence all  the circumstances brought out by the prosecution,  must inevitably and exclusively point to the guilt of the accused and  there should be no circumstance which may reasonably be considered consistent with the innocence of the accused.  It was  further  held that in case of circumstantial  evidence, the court will have to bear in mind the cumulative effect of all  the circumstances in a given case and weigh them as  an integrated  whole.   Any  missing link may be fatal  to  the prosecution case.

     Before  we consider the other circumstances sought  to be proved by the prosecution we may at the out set take note of  the  fact  that  both trial court  and  the  High  Court rejected  the  prosecution  version of the  story  that  the accused gave soft drink Fruity mixed with sleeping tablets and  also intoxicating liquor in view of the evidence of the doctor and Chemical analysis report (Exh.  P-45).  Moreover, no  evidence was on record to prove that intoxicating liquor was given to the deceased.

     According  to the prosecution on 29.03.91 A1 wanted to hire  a  taxi  from the taxi stand to go to  Wayand  and  he talked  to PW12 who was the driver of a tourist taxi and  as A1  wanted to visit places at Wayaned and then return,  PW12 did not agree to undertake the trip.  Thereafter the car was handed  over to deceased by PW12 on 30.03.91.  On that  date it  was  alleged  by the prosecution that A1 talked  to  the deceased and hired the taxi and drove away.  The trial court as  well  as  High Court disbelieved the  above  version  of prosecution story that A1 approached PW12 on 29.03.91 and on the  next  day PW3 saw A1 talking to the deceased Balan  for hiring  the taxi.  Both the Courts below also did not accept the  identification  of  A1  by PW12  in  the  belated  test identification  parade conducted by PW35 and the evidence of PW3  that  he saw A1 talking to deceased at 11.30  a.m.   on 30.03.91   as  PW3  did  not   disclose  this  fact  to  the Investigating  Officer.  We are of the opinion that both the

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courts  below  rightly  discarded the above version  of  the prosecution story.  According to the prosecution the accused took  the car driven by the deceased first to Pookod lake in Wayanad  for boating.  PW31 was examined to prove this  fact but  he  turned hostile.  From the lake they went to  temple and  PWs4 and 29 who had gone to the temple saw the deceased and  the  car near the temple.  The High Court took note  of the fact that PWs 4 and 29 did not disclose this fact to the investigating  officer  and did not claim to have  seen  the accused.   However, according to the High Court it was quite probable  that  the car went to the temple.  But nobody  saw the accused in the car or in the temple and therefore in our opinion  this fact would not link the accused to the alleged crime.  Both the courts below also did not believe the story of  the prosecution that the deceased along with the accused went to the shop of PW33 for repair of dynamo of the car who could  not  set it right and thereafter it was taken  to  an auto-electrician - PW32.  According to the courts below both PWs32  and  33 could not have identified the accused.   More over PW32 became hostile witness.  The car was taken to PW40 who  was  the  owner  of Excel  autos  in  Mananthawady  for purchasing   diesel.    According  to   the   courts   below prosecution  also  could not prove this fact as PW40  turned hostile.   Regarding  the  death  by  strangulation  of  the deceased  while  they were going from  Mananthawady  towards Thamarassery  the trial court did not accept this version of story of the prosecution in view of medical evidence.  It is true  that  at the time of conducting autopsy the dead  body was  decomposed.  PW42 who conducted autopsy clearly  stated that  during  post-mortem  he  did  not  find  any  positive evidence  of ligature strangulation.  This witness gave  the opinion  that  possibility of death resulting from  ligature strangulation  as per police history can be ruled out.   The High  Court  held  as follows:  It is here  the  theory  of strangulation  with  MO-  14 found on the  dead-body  became relevant and acceptable particularly in the context that the medical  evidence did not totally rule it out as the case of death.

     We are of the opinion that the High Court erred in law in not giving the clear finding inasmuch as medical evidence is  clear.  The evidence of doctor that possibility of death resulting  from ligature strangulation as per police history could  not be ruled out, is not a positive medical  evidence to  come  to  the  conclusion   that  death  was  caused  by strangulation.   We find from the impugned judgment that the High  Court  laid too much stress on the subsequent  alleged conduct  of  the  accused.  According to  prosecution  after dropping  the dead body accused went to Mysore and Bangalore in  the  same car and they stayed there till  03.04.91.   At Bangalore  they  stayed at Manjunatha Lodge which  fact  was sought  to be proved by prosecution by examining PW15.   The prosecution  has led evidence to prove disposal of  articles belonging  to the deceased by the accused.  We find from the evidence of the Investigating Officer PW13 that accused were taken  to  various places for alleged recovery of the  above articles.   Though  according to Investigating  Officer  the recovery  was made on the basis of statement of the  accused but  we find from the evidence that actual words in verbatim leading  to recovery were not recorded by the  Investigating Officer.   For example in case of one recovery PW 49 deposed in the following words:  Thereafter, based on the statement of  the  same  accused that he knows the person who  runs  a blade company and provision shop at Ambalavayal with whom he had pledged the gold bangles and that he could show the same

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place  as  led by the accused we reached the same place  and questioned the witness and recorded his evidence."

     In our opinion such a statement by the accused can not be  treated as statement of the accused leading to recovery. More  over  witnesses to the recoveries were  co-drivers  of deceased  residing  far  away at the distance of  about  100 k.ms.    Therefore,   such  recoveries   are   not   legally acceptable.   According to the prosecution on 4.4.91 in  the evening  accused  entrusted  the  car  for  service  in  the automobile  workshop  informing that they would take car  on the next day and while trying to do so they were apprehended by  the sub-Inspector of police Sultans Battery on  5.4.91. From  the evidence of PW47 the sub-inspector who apprehended the accused persons we find that this witness did not record the  information given by the owner of the workshop and  the fact that he apprehended the accused in the general diary of the  police  station.   According to PW47 these  facts  were       recorded in his pocket note book which was not proved. We  are  unable to accept the above version of the story  of the prosecution, accepting it.  and therefore, hold that the High  Court  erred  in  law in  On  the  following  material circumstances  the  prosecution  tried  to  bring  home  the charges  against  the  accused  namely:  (i)  A1  hired  the tourist taxi driven by deceased Balan;  (ii) all the accused went  in the car driven by deceased Balan to Wynad and spent some  time  in  Pookad  Lake  and  thereafter  they  visited Thirunelli  temple  and  Mananthavadi;    and  (iii)   while returning  to Thamarasserry accused gave soft drink Fruity mixed  with  sleeping  pills  to deceased  Balan  and  after immobilizing  and  removing him from drivers seat A1  drove the  car and accused strangulated the driver Balan to  death and  thereafter  proceeded to Puthuppadi.  Both  the  courts below did not accept the above circumstances except the fact that the High Court did not rule out possibility of death of deceased Balan by strangulation which finding is not tenable in  law as stated above.  The High Court giving considerable importance  to  the  subsequent events of  recovery  of  the vehicle from the service station, taking into custody of the accused  by  the sub-Inspector of police, Sultan  Batterys, recovery  of articles belonging to the deceased and parts of the  car, found the appellants guilty.  We have already held that  the  prosecution  has  failed   to  prove  the   above circumstances.   We hold that the High Court erred in law in not  considering whether the circumstances proved, formed  a complete  chain.   In this chain of circumstances  following links  are  missing  namely- hiring of taxi  driven  by  the deceased  by A1, visiting lake and temple by the accused  in the  taxi  driven by the deceased, giving soft  drink  mixed with  sleeping tablets, intoxicating liquor and death of the deceased due to strangulation.  In view of the above missing links  in  the  chain  of circumstances  we  hold  that  the prosecution has failed to establish the guilt of the accused cogently  and  firmly.  A reasonable person on the facts  of this  case  cannot come to the conclusion that  the  accused were  guilty.  Taking into account the cumulative effect  of all  these circumstances and weighing them as an  integrated whole  we have no hesitation to come to the finding that the accused  were  not guilty.  For the reasons stated above  we find  merit in the present appeal and accordingly allow  the same by setting aside the impugned judgment and order of the High  Court.   Both the appellants shall be set  at  liberty forthwith  if  not  required in connection  with  any  other offence.

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