Naushad vs State Of Kerala

NAUSHAD ..... APPELLANT

VERSUS

STATE OF KERALA ..... RESPONDENT

O R D E R

1. This appeal is directed against the judgment of

the High Court of Kerala whereby the appellant has been

convicted under Section 302 of the Indian Penal Code and

sentenced to imprisonment for life for having committed

the murder of one Ashraf. There were four other

accused as well who were tried for offences punishable

under Sections 201 and 212 of the Indian Penal Code and

they were acquitted by the trial court. The trial court

as well as the High Court have noted that the entire

prosecution story was based on circumstantial evidence

and had found seven circumstances against the appellant;

Crl.A. No. 1691 of 2005 2

they being the animosity between the deceased and the

appellant which was supported not only by oral evidence

but even documentary evidence inasmuch as that two

representations had been filed in the police station

interse them; secondly, the extra judicial confession

made over phone to P.W. 7 who was the President of the

Local Panchayat; thirdly, the evidence of last seen

before the incident by P.W. 8 the wife of the deceased

who had seen the deceased and the accused together at

about 6:00p.m. and the murder had been committed between

7:30p.m. and 8:00p.m. that evening, the Chemical

Examiner's report that blood of the blood group of the

deceased had been found on the clothes MO/4 and on the

murder weapon Exhibit MO/3 and finally the suspicious

conduct of the appellant as he allegedly absconded from

the date of the murder i.e. 26th April, 1999 to 29th

April, 1999, the date on which he was finally arrested.

2. Mr. Feroze Ahmed, the learned Amicus for the

appellant has pointed out that these circumstances taken

as a whole did not lead to the only conclusion that the

appellant was guilty of the offence of murder. He has

urged that the observtions of the courts below that the

deceased and the appellant had been seen together before

the alleged time and murder was not borne out by the

Crl.A. No. 1691 of 2005 3

evidence more particularly as semi-digested food had

been found in the stomach of the deceased which

indicated that the murder would have taken place much

before 7:30 or 8:00p.m. He has further submitted that

the story of the extra judicial confession allegedly

made to P.W. 7 could not be believed as P.W. 7 in his

cross examination stated that he had not been able to

completely identify the person who had talked to him.

He has further pointed that the recovery of the blood

stained clothes Exhibit MO/4 had not found favour with

the High Court. He has, accordingly, pleaded that the

several links in the chain of circumstances which could

lead to the only conclusion that the appellant was

guilty of murder, were missing. Mr. G. Prakash,

learned counsel appearing for the State of Kerala has,

however, supported the judgment of the courts below.

3. We have considered the arguments of the learned

counsel for the parties very carefully.

4. Every case of circumstantial evidence is based on

various links in a chain. It is not only the number of

circumstances that are important but the quality of the

evidence which comes about. We are of the opinion that

in the present case there are a large number of

Crl.A. No. 1691 of 2005 4

circumstances which are proved by cogent evidence. The

first circumstance is the documentary and oral evidence

with regard to the strained relationship between the

appellant and the deceased which is borne out by the

fact that even the police had been called in. Likewise,

the evidence of last seen referred to by P.W. 8 the wife

of the deceased is also of great importance. It is

true, as contended by Mr. Feroze Ahmed, that the

presence of semi-digested food in the stomach of the

deceased would indicate that the deceased would have had

his food about 3 or 4 hours before his death which

would bring it to about 3:00/4:00 p.m. and as such the

murder could not have been committed at 7:00p.m. There

is, however, no evidence to indicate as to when the

last meal had been taken. We also find absolutely no

reason to doubt the deposition of P.W. 7 to whom the

appellant had made an extrajudicial confession. The

fact that the telephone call had indeed been made is

supported not only by P.W. 7 but also the note book

entry maintained in the telephone booth which indicates

that such a call had been made to the telephone number

of P.W. 7. In this view of the matter, the attempt of

P.W. 7 to help the appellant by giving a stray statement

in his cross-examination that he had not been able to

identify the voice of the appellant, is to no avail.

Crl.A. No. 1691 of 2005 5

Both courts have considered this fact in detail and

opined that it could not be held for certain that it was

the appellant who had made the call although there were

very strong indications that it was he who had done so.

5. We, accordingly find no merit in the appeal which

is, accordingly, dismissed.

6. The learned Amicus Curiae will have his fee of

`7,000/-.

..............................J [HARJIT SINGH BEDI]

..............................J [CHANDRAMAULI KR. PRASAD]

NEW DELHI MARCH 29, 2011.