Crl.A. No. 1691 of 2005 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1691 of 2005

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;

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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.

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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.