Hostility Shown By Independent Witnesses To Recovery Mahazar Not Always Fatal To Prosecution If Investigating Officer's Evidence Is Reliable: Kerala High Court

The appeal before the High Court was filed by the sole accused.

The Division Bench of Justice A.K. Jayasankaran Nambiar and Justice Jobin Sebastian stated, “We are aware that the hostility shown by independent witnesses to a recovery mahazar is not always fatal to the prosecution if the evidence of the investigating officer regarding the recovery is convincing and reliable. In the present case, however, PW20, the fingerprint expert who allegedly collected chance prints from MO1 shock absorber, deposed that he collected the chance prints from the police station. No explanation has been offered by the prosecution as to why no attempt was made by the investigating officer to ensure the collection of chance prints from the place of recovery itself. Viewed in this background, we find no reason to disbelieve the evidence of PW9 that he affixed his signature on the seizure mahazar relating to the recovery of MO1 shock absorber at the police station.”

Advocate S.Shanavas Khan represented the Appellant while Sr. Public Prosecutor T.R.Renjith represented the Respondent.

Factual Background

It was the case of the prosecution that the accused, who was on bad terms with the deceased, Danesh @ Kannan, trespassed into the courtyard of his house and assaulted him with a shock absorber. Danesh, although taken to the Hospital, was declared dead. The FIR was registered, and the final report was laid before the Judicial First Class Magistrate Court. The Sessions Court took cognisance of the matter. The trial court proceeded to convict the accused for the offence under Section 302 of the Indian Penal Code [IPC].

The accused was, however, found not guilty of the offence punishable under Section 447 IPC and acquitted in relation to that offence. The accused was sentenced to undergo life imprisonment and pay a fine of Rs 50,000 in default to undergo simple imprisonment for three months. The fine amount, if realised, was directed to be paid to the wife of the deceased, as compensation under Section 357(1)(c) Cr.P.C. The accused was also given the benefit of a set-off in the event of an order being passed under Section 433A Cr.P.C by the competent authority.

Reasoning

On a perusal of the evidence of the doctor who conducted the postmortem of the body, the Bench noted that the death was caused by multiple blunt injuries sustained to the head. “It is evident therefore that the death of the deceased was a clear case of homicide, and when taken together with the nature of the injuries and the parts of the body on which they were inflicted, it is a clear case of culpable homicide amounting to murder”, it noted.

The Bench also took note of the fact that in the present case, there was no direct evidence with regard to the incident that occurred and the evidence was entirely circumstantial in nature. The Bench thus explained, “It is trite that in a case where circumstantial evidence is used to enter a finding of conviction for murder against an accused, the evidence must satisfy the following tests, namely, (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulative, 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; and (iv) the circumstantial evidence must be complete and incapable of explanation on any other hypothesis other than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should also be inconsistent with his innocence.”

The Bench noticed that the prosecution had built its case against the accused, based largely on the statements recorded from the first witness who gave the statement based on hearsay knowledge. As per the Bench, being witnesses bearing close relationship to the accused, they may or may not be trying to protect the accused. “We cannot, however, speculate on that aspect. The fact is that there is no valid evidence let in through them that would implicate the accused in the crime that was committed”, it added.

“When read with the deposition of Sreekumar, who stated that his signature on Ext.P3 mahazar was put at the police station, the testimony of PW13 whose deposition regarding her presence at the time of recovery, does not inspire confidence in us, does not appear to be worthy of credence, particularly when she is not a signatory to the seizure mahazar”, it stated.

As per the Bench, the prosecution had not been able to discharge its burden of proving a complete chain of circumstances that would point unerringly to the guilt of the appellant/accused and which excludes all other hypotheses other than that of the guilt of the appellant/accused. “This burden of the prosecution not having been discharged, we have no other option but to set aside the conviction of the appellant/accused as entered by the trial court and acquit the appellant/accused of the offence punishable under Section 302 IPC”, it added.

Allowing the appeal, the Bench directed that the appellant/accused be set at liberty.

Cause Title: Ratheesh v. The State of Kerala (Neutral Citation: 2026:KER:21248)

Appearance

Petitioner: Advocates S. Shanavas Khan, S. Indu, Govind H. Nair

Respondent: Sr. Public Prosecutor T.R.Renjith

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