K. V. Jayakumar, J.

1. This appeal is preferred by the sole accused in S.C. No.258/2013 of the Additional Sessions Court-I (Special Court), Pathanamthitta. The appellant stood for trial for the offences punishable under Sections 449, 394, 397, 376, 201 and 302 of the Indian Penal Code.

2. The learned Sessions Judge found the accused guilty of the offences punishable under Sections 449, 394, 397, 201 and 302 of the Indian Penal Code, convicted and sentenced him in the following manner:

                  1.       Imprisonment for life and to pay a fine of Rs. 50,000/- with a default clause under Section 302 IPC.

                  2.       Rigorous imprisonment for a period of five years and to pay a fine of Rs. 5,000/- with a default clause under Sections 449 and 394 of IPC each.

                  3.       Rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/- with a default clause under Section 397 of IPC.

                  4.       Rigorous imprisonment for a period of three years and to pay a fine of Rs. 3,000/- with a default clause under Section 201 of IPC.

                  However, he was acquitted of the offence punishable under Section 376 IPC. It is further directed that the substantive sentences of imprisonment shall run concurrently.

The Prosecution case

3. The prosecution case is that on 01.05.2010 at about 8.45 p.m., the accused, with the intention of committing robbery, trespassed into the house of Rachel Samuel (deceased) and attacked her with a stick. When she became unconscious, the accused committed theft of a gold chain weighing one sovereign, ear studs weighing 3.5 grams, a gold chain weighing 4 1⁄2 sovereigns, a gold cross weighing 8.5 grams, and a gold bracelet weighing 16 grams, all of which were kept inside a cupboard. The prosecution further alleges that he stole a sum of ₹2,000/- that had been kept under the cot. After committing the robbery, the accused carried Rachel Samuel to the backyard of the residence and, after laying her on the ground, committed rape and thereafter committed her murder by strangulating her with a towel. Thereafter, the accused, in order to destroy the evidence, had thrown away the emergency lamp, keys, kitchenware, etc., taken from the residence of Rachel Samuel and the towel used for strangulation into the well situated in the courtyard.

4. PW1 (K. G. Yohannan), lodged Ext. P1 FIS on 04.05.2010 before the Pulikeezhu Police Station. On the basis of Ext. P1 FIS, PW24 (K.S. Vijayan), Sub-Inspector of Police, Pulikeezhu Police Station, registered Ext.P22 FIR. Thereafter, PW22 (R. Jayaraj), Circle Inspector, Thiruvalla, took up the investigation on the same day itself. He visited the place of occurrence, conducted the inquest, and prepared Ext. P2 Inquest Report. As per Ext.P2, he seized the clothes, hair, turkey towel, etc., from the place of occurrence.

5. Thereafter, PW22 had examined the house wherein the incident occurred. He had seized a lady's watch, spectacles, and the cover of a medicine, namely Atorlip, which were found on the table. He has further seized a yellow plastic rope from the bathroom, food particles, Malayala Manorama daily of 01.05.2010, 03.05.2010 and 04.05.2010 found in the hall. A shield, key of the front door, a key of the Maruti 800 Car, RC Book of the car, Title deed, Passport of Rachel Samuel (the deceased), the Passbook of Treasury Saving Account and State Bank of Travancore, Election Identity card, Passport of Gee Varghese Samuel and pillow from the house were also seized as per the seizure mahazar.

6. PW22 has produced those articles before the Jurisdictional Court through Ext.P16 property list. The well situated on the western side of the place of occurrence was drained and examined. A steel vessel (MO5), an emergency lamp (MO2) and a towel were recovered from the well. Those articles were seized under Ext. P7 mahazar. He identified the Thookkupathram (steel vessel) as MO-5. According to PW22, his investigation revealed that a chain, vatta chain, bracelet, bangle and a pair of earrings were robbed from the house of the deceased.

7. The further investigation of this case was conducted by PW26 (D. Rajagopal), DYSP, Crime Branch, as per the order of DGP D1/7728/CR/2010 dated 02.07.2010. PW26 took up the investigation on 08.07.2010. The place of occurrence was examined with the aid of Dr.Vinod Kumar (PW15), Scientific Assistant, on 27.10.2010 and a blood-stained lid of a carton was seized as per Ext.P3 Seizure Mahazar. As per Ext.P27, seizure mahazar, he seized the application submitted by Rachel Samuel, the deceased, for pledging the ornaments in a bank. The saree worn by the deceased was seized as per Ext.P29 mahazar and forwarded to the Court through Ext. P30 property list.

8. PW26 further stated that the accused (Sabeer) made a confession to Pulikeezhu Police on 16.02.2011, while he was questioned in connection with another crime, ie., Crime No. 68/2011, and admitted that he had committed the crime which was being investigated by PW26. The Circle Inspector, Thiruvalla (PW25), has forwarded Ext.P23 report to him. Thereafter, he filed Ext.P32 report showing the name and address of the accused. The accused, who was in judicial custody in crime No. 68/2011, was produced before the Jurisdictional Magistrate on a production warrant, and his custody was obtained on 25.02.2011.

9. While in police custody, the accused made a confession that the big chain, the cross locket, the bangle, the earrings and the bracelet were sold to one Settu of Chalakuzhi Bazar, Thiruvalla. On the basis of the disclosure statement of the accused and as led by him, those gold ornaments were seized by PW26 on 25.02.2011 at 5.15 p.m. from the shop of PW9 (Sukumar Sopan) as per Ext.P4 mahazar.

10. Thereafter, the accused was arrested as per Ext.P33 Arrest Memo. The accused further confessed that the small chain was given to his wife for her use.  Thereafter, it was taken back from her and sold in a financial institution. On the basis of the said disclosure statement, the small chain was recovered from Capital Bankers, Pooppara, as per Ext.P5 seizure mahazar.

11. On the basis of his disclosure, a black handbag (MO16) was recovered from the compound of Pamba College as per Ext.P6 seizure mahazar. He identified those articles. After completing the investigation, he laid the charge sheet before the jurisdictional court.

The proceedings before the trial court

12. The jurisdictional Magistrate, after completing the initial proceedings, committed the case to the Court of Sessions, Pathanamthitta. The Sessions Court made over the case to the Additional Sessions Court-I (Special Court), for trial and disposal.

13. The learned Sessions Judge, after hearing both sides, framed the charge under Sections 449, 394, 397, 376, 201 and 302 of IPC. The charge was read over and explained to him. The accused denied the charge and claimed to be tried.

14. Before the trial court, PWs. 1 to 26 were examined, and Exts.P1 to P45 were exhibited and marked. MOs. 1 to 16 were identified and marked. After a full-fledged trial, the learned sessions judge convicted the accused as aforesaid. No evidence was adduced on the side of the defence.

The submissions of the learned counsel for the appellant

15. Adv. Sherlymol Thomas, the learned counsel who had been appearing for the appellant, relinquished her vakalath. Thereafter, Adv. Sri.Dheeraj Rajan was appointed by this Court as Legal Aid Counsel. He argued the matter before us with clarity, diligence, and commendable felicity.

16. Sri. Dheeraj Rajan submitted that the trial court convicted the appellant without properly appreciating the evidence. The prosecution has failed to allege and prove the charge against the appellant beyond a reasonable doubt. The chain of circumstantial evidence is incomplete, and there are several missing links. The prosecution has failed to allege and prove the motive for the commission of the crime.

17. The recovery effected on the basis of the disclosure statement of the accused is not legal and proper. The learned counsel further pointed out that the investigation of this case is faulty and there are several lapses in the investigation. The learned counsel pointed out that the scientific evidence adduced by the prosecution to connect the accused/appellant to the crime cannot be used against him to fasten penal liability on him.

The submissions of the learned Public Prosecutor

18. Smt. Neema T.V., the learned Public Prosecutor, would submit that the prosecution has proved the charge against the appellant beyond a reasonable doubt. The chain of circumstances leading to the murder is fully established and would unerringly point out the guilt of the accused. The trial court evaluated the evidence in the correct perspective, and no interference is warranted in this matter. The learned Public Prosecutor pointed out that the prosecution has succeeded in establishing that the accused has committed the murder of Rachel Samuel for robbing the gold ornaments. The recovery of gold ornaments at the instance of the accused from the shop and the financial institution would convincingly prove his involvement in the crime.

The compendium of the prosecution case

19. PW1 (K.G. Yohannan) is the first informant. He lodged Ext.P1 FIS before the Pulikeezhu Police Station on 04.05.2010. He testified that he is a neighbour of the deceased Rachel Samuel. The local people used to call the deceased ‘Kochamma’. On 04.05.2010, PW2 (Molly George) called and told him that Kochamma had not been seen for the last 2-3 days. Thereafter, PW1 and PW2 went to the house of the deceased Rachel Samuel. The front door of the house was found to be locked. They have conducted a search of the surroundings in the compound and found the dead body of Rachel Samuel on the western side of the house near a tree. They informed the matter to the Police. At that time, the deceased wore a skirt and blouse. PW1 identified MO-1 coffee coloured blouse worn by the deceased.

20. PW2 (Molly George) is another neighbour of the deceased. She stated that the deceased was not seen for 2-3 days and therefore, she called PW1 and told him the matter. They went together to the house of the deceased and found the dead body of the deceased lying in the compound. She further testified that the deceased Rachel Samuel was residing alone in her house. She used to drive her car to go out and used to visit the church in the evening and return in her car. She identified MO-2 emergency lamp used by the deceased.

21. PW3 (George P. Samuel) is the son of the deceased. He testified that on 04.05.2010, he got information that his mother was dead. His mother had resided at Kadapra. He further testified that he was residing along with his family at Kuttapuzha, Thiruvalla. His mother was residing alone. He added that his business had shut down and, therefore, he was in financial constraints. He cleared a portion of his debts by pledging the gold ornaments of his mother in SBT, Mannar and settled the balance debts by selling some immovable property of his mother. On 08.02.2010, he along with his mother, went to SBT and retrieved some gold ornaments. They had taken back a gold chain weighing four and a half sovereigns, along with a gold locket and a bangle from the bank. Further, he stated that his mother used to wear another chain weighing one sovereign with a cross in it and a bracelet. His mother used to keep the gold ornaments in a black bag containing the name of the shop printed on it as ‘Parthas’. He identified MO-3 gold chain linked with a cross.

22. PW4 (N. Shailaj) is yet another neighbour of the deceased. He identified the deceased in the dock. He is the attestor to Ext.P2 inquest report. PW5 (Kochumariyamma Abe) testified that the deceased is known to her. She had last seen the deceased on 01.05.2010 at about 6.00 p.m. in the Church.  At that time, she wore a Thara design chain and a pair of earrings. On that day, she wore a saree and blouse. She identified the Blue colour saree worn by the deceased as MO-4.

23. PW6 (K.V. Vijayalakshmy) is the Secretary of Milk Producers Co-operative Society, Kadapra. According to her, the deceased used to bring milk to the society in a steel utensil with a label ‘R.S. Niranam’. She identified the steel utensil as MO-5. PW7 (Narayanan) is the attestor to Ext.P3 seizure mahazar, according to which the police recovered a carton. PW8 (Manikuttan T.V.) is the gold appraiser of SBT, Mannar Branch. He used to assess the purity of the gold ornaments brought by the customers.

24. PW9 (Sukumar Sopan) is conducting a shop manufacturing gold dies. He deposed that he used to purchase old gold. He testified that during the year 2011, the police came to the shop along with a person who sold gold ornaments to him. That person sold one chain, one bangle, one bracelet, a pair of earrings and a cross-shaped locket in his shop. He melted the ornaments except the cross locket. He identified the seller of the gold in the dock as the accused. He had also identified MO-3 cross locket and the gold ingot (MO-6). PW10 (Badarudheen K.) is the attestor of Ext.P4 mahazar, as per which the police seized the gold ornaments from the shop of PW9 (Sukumar).

25. Maria Jose (PW11) is the mother-in-law of the accused. She stated that the marriage of her daughter, Alphonsa, was solemnized about 12 years ago with the accused. After their marriage, the accused and her daughter, Alphonsa, resided in a rented house at Pooppara. She further stated that she along with the accused, went to the financial institution of one Babu and pledged a gold chain. The accused received the money and left the place. She identified the gold chain weighing about one sovereign as MO-3.

26. PW12 (K.V. Babu) is the proprietor of Capital Bankers at Pooppara. According to PW12, during the year 2011, the accused (Sabeer), along with his mother-in-law, Maria Joseph, came to his institution and pledged a gold chain weighing about one sovereign. Thereafter, the police came to his shop along with the accused Sabeer. He identified the ‘Thara’ model chain as MO-3.

27. PW13 (George Xavier) was an employee of Capital Finance, Pooppara and an attestor to Ext.P5 seizure mahazar. PW14 (Kutty Baby) is the Security staff of Pamba Devaswom Board College, Parumala. He was an attestor to Ext.P6 seizure mahazar as per which the police seized a bag from a pit at the instance of the accused. But he could not identify the bag.

28. PW15 (Dr. R. Vinod Kumar) is the Scientific Assistant. He examined the scene of occurrence along with the police officials. The scene of occurrence is the house bearing No. 12/180 of Kadapra Grama Panchayat. He found a partially decomposed body of a lady in a supine position beneath a Coco plant. Near the dead body, he found a blue coloured underwear and a turkey towel. He has collected two loose hairs from the body of the deceased; one from the blouse and the other from the underskirt. Those hairs were packed and marked as item No.1. He has also collected food particles, ash coloured bed sheet, an olive green bed sheet, cotton from the floor and cotton rubbings. He has also collected loose hairs from the southern room of the house with traces of blood on them. Those loose hairs were packed as item No.2.

29. PW16 (Aniyan) testified that he had drained the well in the property of Rachel Samuel and found a steel vessel, a set of keys, an emergency light and an old towel. The Police seized those articles as per Ext.P7 mahazar.

30. PW17 (Kala K.S.) was the Chief Manager of the State Bank of Travancore, Mannar Branch. She testified that the Police had seized Ext.P9, Gold Loan Application submitted by Rachel Samuel. As per Ext.P9, the deceased had pledged one bangle and one chain with a locket. She had taken back the ornaments on 08.02.2010. Ext.P10 is the photocopy of page No.20 of the Gold Release Register containing the details of the said transaction.

31. PW18 (Dr. Zachariah Thomas) is the Assistant Professor of Forensic Medicine, Government Medical College Hospital, Kottayam. On 04.05.2010, he conducted the autopsy of Rachel Samuel, aged 75 years, in Crime No. 209/10 of Pulikeezhu police station and issued Ext.P11 post mortem certificate. He has noted the following antemortem injuries:

                  1.       Contusion 9x5x0.5cm involving left temperoparietal region of head 7cm outer to midline and 4cm above orpital margin.

                  2.       Contusion 9x4x0.5cm involving right parieto occipital region of scalp its upper extent 3cm outer to midline and 10cm above root of neck skull. Dura was intact. Brain was softened and partially liquefied with uniform red colour suggestive intracranial haemorrhage.

                  3.       Contusion 6x3x0.5cm, across the forehead.

                  4.       Contusion 7x4cm, muscle deep involving right side of lower jaw.

                  5.       Contusion 4x1x0.5cm on the inner aspect of lower lip, 2cm outer to midline, corresponding to lower lateral incisor carine and Ist premolar tooth.

                  6.       Contusion 1.5x1cmx0.5cm involving left ala of nose 1cm outer to midline.

                  7.       Contusion 8x7.5cm, muscle deep on left side of face, its lower extent 2cm above jaw bone and 5cm outer to midline.

                  8.       Contusion 7x4cm muscle deep involving right side of face 3cm below malar prominence.

                  9.       Contusion 2x1, muscle deep involving outer border of right side of tongue, 6cm behind its tip.

                  10.     Contusion 3x2cm, muscle deep across tip of tongue.

                  11.     Contusion 1.5x1cm, muscle deep involving the left border of tongue, 4cm behind its tip and 2cm outer to midline.

                  12.     Contusion 18cm long (with central pale area) obliquely placed on the neck below thyroid cartilage. It was placed 7cm behind chin (2.5cm broad) 6cm below angle of left side of jaw bone (2cm broad) 4cm below angle of right side jawbone (2cm broad). Flap dissection of neck was done under blood less field. Subcutaneous tissue was pale, upper part of right sternomastoid muscle was contused 3x1cm, involving its full thickness. The submaudi bular gland on right side, muscles of floor of mouth were contused involving its full thickness. Thyroid gland was seen enlarged, with multiple nodules. The epiglottis glottis and aryepiglottic folds were haemorrhagic Hyoid bone, appeared normal.

                  13.     Contusion 2x1cm, muscle deep on outer aspect of left wrist 5cm above root of thumb. The wrist joint was seen partially dislocated.

                  14.     Contusion 4x2x1cm involving front of left wrist.

32. Dr. Zacharia Thomas opined that injury Nos. 4 to 11 could be caused by blunt force. Injury Nos. 1 to 3 could be caused by a metallic portion of a walking stick.

33. PW19 (N.R. Bushara Beegum) is the Scientific Assistant, Biology in FSL, Thiruvananthapuram. She received five sealed packets of samples collected in Crime No.209/2010 of Pulikeezhu Police Station. After the examination, she issued Ext.P12 report.

34. PW20 (Thomas P. Varghese) is an attestor to Ext. P13 and Ext.P14 seizure mahazars. Through Ext.P14, soil and dried leaves were collected from the scene of occurrence. PW21 (K. Radhadevi) is the Village Officer, Kadapra, who prepared Ext.P15 scene plan.

35. The learned Sessions Judge, believing the version of material witnesses, PWs. 1, 3, and 10, found the accused guilty of the offence punishable under Section 302 of the IPC.

Whether the death homicidal?

36. PW18 (Dr. Zacharia Thomas), Assistant Professor of Forensic Medicine, conducted the autopsy of the body of Rachel Samuel and issued Ext.P11 Postmortem certificate. He has noted as many as 12 antemortem injuries on the body of the deceased. There is no dispute as to the fact that the death of Rachel Samuel was a homicide. In view of the evidence of PW18 and PWs. 1 and 2, the neighbours who identified the body of the deceased, we find no good grounds to disagree with the conclusion of the learned Sessions Judge that the death of Rachel Samuel is homicidal.

Judicial Evaluation

37. Now, we shall proceed to evaluate the evidence on record in the light of the arguments advanced by the counsels.

38. The first submission by the learned counsel for the appellant is that the motive, which is a driving force of a crime, is not proved by the prosecution.

39. The alleged motive is that the accused trespassed into the house of the deceased for robbing the gold ornaments of the deceased (Rachel Samuel). The learned counsel would submit that the prosecution narrative as to the alleged motive is not satisfactorily proved by the prosecution.

40. In Pannayar v. State of Tamil Nadu,( (2009) 9 SCC 152) , the Hon’ble Apex Court held that the absence of motive in a case which is dependent on circumstantial evidence is more favourable to the defence.

41. In Suresh v. State of Haryana ((2018) KHC 6620) , the Hon’ble Apex Court, relying on Shivaji Genu Mohite v. State of Maharashtra ((1973) 3 SCC 219) , reiterated that motive is an important aspect in a circumstantial evidence case.

42. On going through the evidence of the material witnesses, we are of the view that the prosecution has failed to prove the alleged motive for the commission of the offence.

43. Sri. Dheeraj submitted that no evidence is forthcoming to prove that the accused had trespassed into the house of the deceased with an intention to commit robbery. Furthermore, no witness spoke about the presence of the accused in or around the scene of the occurrence. The alleged recovery of the ornaments was effected after the lapse of several months.

44. The next submission of the learned counsel for the appellant is that the chain of circumstances is not fully established by the prosecution. He has pointed out several missing links in the chain of circumstantial evidence.

45. At this juncture, it may be useful to refer to the law laid down by the Apex Court on this point.

46. In Sharad Birdhichand Sarda v. State of Maharashtra((1984) 4 SCC 116) , the Hon’ble Apex Court observed that the circumstances from which the conclusion of guilt is to be drawn should be fully established. The five golden principles of circumstantial evidence upheld by the Apex Court in Sharad Birdhichand Sarda (supra) are:

                  1.       The circumstances from which the conclusion of guilt is to be drawn should be fully established;

                  2.       The facts so established should be consistent only with the hypothesis of guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

                  3.       The circumstances should be of a conclusive nature and tendency;

                  4.       They should exclude every possible hypothesis except the one to be proved; and

                  5.       There must be chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

47. In M.G. Agarwal v. State of Maharashtra (AIR 1963 SC 20) , the Apex court held that it is a well-established rule in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt. If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt.

48. In Suresh (supra), the Supreme Court, relying on precedents such as Sharad Birdhichand Sarda (supra), Hanumant v. State of M.P ((1952) 2 SCC 71) , Deonandan Mishra v. State of Bihar ( (1955) 2 SCC 150)  and Charan Singh v. State of U.P. (1959 SCC OnLine SC 67)  held that circumstantial evidence must form a complete and unbroken chain, be fully established, consistent only with the guilt of the accused, and exclude every other hypothesis.

49. We have evaluated the evidence guided by the dictum laid down in the above cases.

50. The definite case of the prosecution is that the accused trespassed into the house of the deceased on the night of 01.05.2010, attacked her with MO-8 walking stick and committed the robbery of gold ornaments and cash. Admittedly, there is no direct evidence for the commission of the crime.

51. The homicidal death of Rachel Samuel was unnoticed by the public for about three days. When PW2 (Molly George), a neighbour of the deceased, felt some doubts as to the absence of the deceased for 2-3 days, he contacted PW1 and proceeded to the scene of occurrence along with PW1. They conducted a search outside the house of the deceased and found her body on the western side of the house near a tree. PWs. 1 and 2 informed the police about the incident. According to PW3 (George P. Samuel), the son of the deceased, his mother was living alone in her house at Kadapra, Thiruvalla. He got information about the death of her mother only on 04.05.2010. According to PW3, his mother used to wear gold ornaments. He, along with his mother, got back MO3 gold chain with a cross from SBT on 08.02.2010.

52. According to PW9 (Sukumar Sopan), he is a dealer of old gold, and he purchased one chain, one bracelet, a pair of earrings and a cross locket from the accused about 8–9 months ago. He melted those ornaments, except the cross locket and converted them into a gold ingot (MO-6). PW12 (K.V. Babu), the proprietor of Capital Bankers, would say that the accused, along with his mother-in-law, PW11 (Maria Joseph), came to his institution and pledged MO-3 Thara model chain. He identified MO-3 chain.

53. PW13 (George Xavier) was an employee of Capital Bankers. He put his signature in Ext.P5 seizure mahazar, when the police seized MO-3 gold chain from the Capital Bankers.

54. On going through the evidence of PWs. 11, 12 and 13, it could be seen that the accused had pledged MO-3 chain in the Capital Bankers, Pooppara. The evidence of Sukumar Sopan (PW9) would also indicate that the accused sold some gold ornaments, which were converted into MO-6 gold ingot.

55. The learned Sessions Judge convicted and sentenced the accused mainly on the basis of scientific evidence and the evidence of the Investigating Officer with regard to the recovery of gold ornaments and gold ingot. PW15 (Dr. R. Vinod Kumar) is the Scientific Assistant who collected hairs from the floor at the scene of occurrence and sample hairs from the dead body. He had also collected two loose hairs found on the dead body, one from the blouse and the other from the underskirt. PW19 (N.R. Bushara Beegum) has conducted the forensic examination of the samples. The result of the forensic examination would reveal that the type-1 hair in Item No.8, which was found on the apparel of the dead body and item Nos. 9, 10 and 15 hairs are human scalp hairs and they are also similar. Therefore, the result would indicate that those are the hairs of the deceased. Type-2 hair mentioned as item No.8 is also found to be a human scalp hair similar to the sample hair of the accused in item No. 20. Hence, the learned Sessions Judge took the view that one of the hairs found on the apparel of the dead body and the scalp hair collected from the accused are found to be similar. It is on that basis that the trial court has arrived at a conclusion that the presence of the accused at the scene of occurrence is proved by the forensic analysis of the hairs.

56. On going through the evidence let in by the prosecution, we are unable to accept the findings of the learned Sessions Judge as to the guilt, conviction and sentence. Admittedly, there were no eyewitnesses to the incident. Even though the incident was on 01.05.2010, the factum of homicidal death was known to the public on 04.05.2010. No witnesses spoke about the presence of the accused at the place of occurrence during the alleged time of occurrence, prior to the incident or immediately after the incident.

57. Even though there are several houses located near the scene of occurrence, as per Ext.P15 Scene plan, no witnesses were examined to prove the ‘last seen together theory’. In order to prove the alleged trespass, robbery and murder, the prosecution has to establish by convincing evidence that the accused was present at the place of occurrence. No attempt was made to prove the presence of the accused at the place of occurrence during the relevant period.

58. It is well settled that the burden of proof in a murder case is always with the prosecution, and it never shifts. The onus of proof may shift during the course of appreciation of the evidence. The prosecution has to allege and prove the charge against the accused beyond a reasonable doubt, though not beyond a shadow of doubt.

59. The prosecution has the primary responsibility to prove the guilt of the accused beyond a reasonable doubt. Once the prosecution establishes a prima facie case, the burden may shift to the accused to explain certain facts, but the overarching principle remains that the prosecution must prove its case beyond a reasonable doubt, and suspicion alone cannot sustain a conviction.

60. In Paramjeet Singh @ Pamma v. State of Uttarakhand (2010 (10) SCC 439) case the Apex Court observed in paragraph 11 as follows:

                  11. Legal Issues

                  Standard of Proof: A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The Court must bear in mind that 'human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions.' Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the Court to punish the accused on the basis of a moral conviction or suspicion alone. 'The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.' In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law.

61. In Ashok v. State of Maharashtra ((2015) 4 SCC 3) , the Hon’ble Apex Court observed that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards the guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove the exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have the burden of proof as per Section 106 of the Evidence Act.

62. In Sabitri Samantaray v. State of Odisha ((2023) 11 SCC 813) , the Hon’ble Apex Court held that Section 106 of the erstwhile Indian Evidence Act is in no way aimed at relieving the prosecution from its burden to establish the guilt of an accused; it applies to cases where chain of events has been successfully established by the prosecution, from which a reasonable inference is made out against the accused.

63. In the case on hand, the prosecution has not propounded the theory of last seen together. In such circumstances, the onus of proof never shifts to the accused to explain the facts within his special knowledge under Section 106 of the erstwhile Indian Evidence Act.

64. At this juncture, Sri. Dheeraj pointed out that mere recovery of gold ornaments at the instance, and as led by the accused, by itself is insufficient to hold that the accused has committed the murder of the deceased. The recovery in the instant case was effected after a lapse of around nine months. Hence, the presumptive proof under Section 114(a) of the Indian Evidence Act has no relevance at all. We find much force in the said argument advanced by the Legal Aid Counsel.

65. In order to prove the presence of the accused at the scene of occurrence, the prosecution could have taken the chance fingerprint for comparison with the fingerprint of the accused. The prosecution has not carried out such an exercise in the instant case.

66. One of the material circumstances relied on by the learned Sessions Judge to prove the presence of the accused at the scene of occurrence is the forensic examination result, which indicates that the hair of the accused collected and that of the deceased are found to be similar. According to PW19, the hair of the accused and the hair of the deceased collected are similar but not identical.

67. It would be useful to refer to the meaning of the words ‘identical’ and ‘similar’. As per Chambers Dictionary, the meaning of those words is under:

                  “Identical - said of two different items: exactly similar in every respect.”

                  “Similar - having a close resemblance to something: being of the same kind, but not identical: alike.”

68. The learned Sessions Judge held that since the hair samples collected from the apparel of the deceased and the hair of the accused collected from the scene of occurrence are similar, the presence of the accused was satisfactorily proved by the prosecution. We are unable to accept the reasoning. The learned Sessions Judge construed the word ‘similar’ as ‘identical’.

69. This court has occasioned to consider the issue in Muhammed Yousaf @ Sajid and Another v. State of Kerala (2022 KHC OnLine 136) . In that case, this Court held that there is substantial difference between the words ‘identical’ and ‘similar’. It is further observed that it is not safe to rely on FSL report relating to the matching of hair samples when the result only shows that the hairs were ‘similar’ in nature.

Conclusion

70. After a careful and meticulous analysis, and upon weighing and testing the evidence on record, we are of the considered opinion that the prosecution has failed to establish the charge against the accused beyond a reasonable doubt. No evidence is forthcoming to prove the presence of the accused at the place of occurrence during the relevant time. Nobody has seen the accused and the deceased together immediately prior to the incident. The FSL report with regard to the comparison of hair samples would only show that the hairs are similar and not identical. The trial court, without noticing the several missing links in the chain of circumstantial evidence, held that the prosecution had successfully discharged its burden to prove the charge against the accused. While finding the guilt of the accused, the trial court has missed out and overlooked numerous circumstances referred to in the foregoing paragraphs. Consequently, we hold that the impugned judgment of the learned Sessions Judge cannot be sustained and warrants interference. Accordingly, the impugned judgment is set aside.

In the result,

                  1.       Criminal Appeal No.1184/2019 is allowed.

                  2.       The impugned judgment of the learned Additional Sessions Judge-I (Special Court), Pathanamthitta in S.C. No.258 of 2013 is set aside.

                  3.       The appellant/accused is acquitted, and he is set at liberty forthwith, if his continued incarceration is not required in any case.

                  4.       The bail bond, if any, executed by the accused stands cancelled.

                  5.       Fine, if any, paid by him shall be refunded.