While demonstrating zero tolerance for the long detention of under trial prisoners, the Kerala High Court has in an extremely laudable, landmark, latest and learned judgment titled Jahir Hussain vs State of Kerala & Anr. in Crl. Appeal No. 237 of 2020 and cited in 2022 LiveLaw (Ker) 469 that was pronounced as recently as on August 23, 2022 while reversing the order of the trial court acquitted a murder convict and highlighted the need for a speedy trial and proper assistance to the prisoners for filing appeals to avoid the long periods of incarceration.

Most laudably, the Division Bench of Kerala High Court consisting of Justice K Vinod Chandran and Justice C Jayachandran while pointing out the distressing aspect of the continued incarceration of under-trial prisoners and the delay occasioned in conducting trials opined that High Court could issue directions to Trial Courts to take up matter based on the date of incarceration of convicts.

I would in my personal capacity even suggest that the Trial Courts must strictly without any discretionary power take up matter only and only based on the date of incarceration of convicts so that those who have been in jail for a longer time are released at the earliest on a priority basis without any discrimination whatsoever! It goes without saying that this will definitely ensure that an innocent under trial does not rot in jail for decades as we see in so many cases most unfortunately!

At the outset, this brief, brilliant, bold and balanced judgment authored by Justice K Vinod Chandran for a Division Bench of the Kerala High Court comprising of himself and Justice C Jayachandran sets the ball rolling by first and foremost putting forth in para 1 that:
House trespass, robbery and murder are the charges on which the appellant was convicted, based only on circumstantial evidence, that too mainly on the recoveries made of the various articles which were alleged to have been stolen from the house and sold to various persons or kept in secure places. There were two accused, one of whom was convicted in an earlier trial, since the cases were split up on the present appellant absconding after the Sessions Court had taken the case on file. Later, arrest of the appellant led to the present trial in which he was convicted under Ss.449, 392, 394 & 302. Life imprisonment and fine under S.302 and various terms of imprisonment under the other provisions, with appropriate fine and also default sentences, in the event of failure to pay fines, were imposed.

To put things in perspective, the Division Bench then envisages in para 2 that, Adv. Sruthy K.K., learned State Brief, appeared for the appellant and Sri. Renjith, learned Public Prosecutor appeared for the State. Learned counsel for the appellant argued that there is no single circumstance connecting the accused with the crime, leave alone an unbroken chain of such circumstances. There is absolutely no evidence obtained regarding the murder, either scientific or circumstantial. The motive spoken of is frivolous to say the least and there is no clear ascertainment of ownership or identity of the stolen goods from the house.

The recovered goods, the MOs, were not properly identified and the proceedings sheet shows that they were missing from the court and there is no whisper as to how they were traced out. Apart from there being no proper identification of the recovered goods, even the alleged owner does not have a definite case as to the quantity of the goods stolen or its value. The fact that the goods were insured for a huge amount should normally raise a suspicion against the owner of the goods himself.

The recoveries have also not been properly witnessed and many of the crucial witnesses were not examined. Neither does the investigating officer (I.O) identify the goods, as recovered on the basis of the separate recovery mahazars, nor do the attestors or persons from whose possession it was recovered. The owner of the goods does not produce a license to run the business, a stock register or even the purchase bills of the alleged stolen goods. The goods allegedly recovered from the possession of the accused and those to whom allegedly sale was made by the accused, are not ascertainable or identifiable. There is no question of the accused being found guilty for even the charge of robbery, leave alone the house trespass and murder. The learned Counsel placed heavy reliance on Tulsiram Kanu v. State AIR 1954 SC 1.

Be it noted, the Division Bench pointed out in para 18 that:
As we noticed, the recoveries are not convincing enough, for reason of the recovered items not having been specifically identified as those recovered from the separate locations. MO1, MO2 & MO65 were identified by PW4 and PW5, only by the mark on them respectively of ‘Reebok’ ‘OSCAR’ and ‘Rebook’. MO1 is said to have been owned by PW4 and MO2 by another employee, Salim, who was at the time of the trial, employed abroad and MO65 by PW5. MO65 was recovered at the instance of Jerook and the recovery of MO1 & 2 as we already found is on a sticky premise and wholly unreliable. Be that as it may, the identifiable marks spoken of by the witnesses were the emblem/legend of the manufacturers and there were no distinguishing features spoken of by the witnesses to identify the said bags as those owned by them. It is trite that the recovery of objects which are easily available in the market, not identifiable by the owners on a specific description, cannot be an incriminating material in a criminal trial.

It is also worth noting that the Bench then hastens to add in para 19 that:
The medical evidence is clear and the death is by reason of smothering. The body had a number of ante mortem injuries, precisely twenty, which were lacerated wounds, abrasions and contusions. The death itself was stated to have occurred 6 to 8 hrs. prior to the commencement of postmortem examination. The postmortem, as per the report Ext.P18 was conducted at 1.50 p.m on 06.07.2004. Hence the death could have occurred any time between, noon of 05.07.2004 and the night, at which time, according to the testimonies, the cook was alone in the house. As per the usual practice, PW2 had come in the afternoon for taking food for the employees at the shop, when the cook was alive. PW2, then returned only at 8.30 in the night, when he saw the cook dead and his body trussed up. The death is a homicide and absolutely no evidence was received from the scene of occurrence to connect the accused with the crime. The body did not reveal anything worthwhile in scientific examination. The screwdriver and chisel found from the scene of occurrence also did not have any finger prints connecting the accused to the crime, nor was their source discovered.

Quite significantly, the Bench then points out in para 20 that:
The only circumstance insofar as the connection of the appellant to the crime are allegedly the recoveries made on confession statements under S.27. It is trite that there can be no conviction entered on the sole circumstance of a recovery under S.27, but when the crime of murder is accompanied with theft and the stolen articles are recovered on the confession statement, there could be more weight attached to the recovery so made, under S.114, Illustration (a) of the Evidence Act. In this context we have to refer to Ganesh Lal [supra] as quoted by the learned Prosecutor. Paragraphs 13 & 14 are herewith extracted:

13. In Baiju Vs. State of M.P., (1978) 1 SCC 588, Earabhadrappa Vs. State of Karnataka (1983) 2 SCC 330, Gulab Chand Vs. State of M.P. (1995) 3 SCC 574, Mukund @ Mishra & Anr. Vs. State of Madhya Pradesh - AIR 1997 SC 2622 and A. Devendran Vs. State of T.N., (1997) 11 SCC 720, para 20, murder and robbery were proved to have been integral parts of one and the same transaction and the presumption arising under illustration (a) to Section 114 of the Evidence Act was applied for holding the accused guilty of not only having committed robbery but also murder of the deceased. The presumption was founded on recovery of stolen property belonging to the deceased.

14. While raising such presumption the time factor between the date of the offence and recovery of stolen property from the possession of the accused would play a significant role. Precaution has to be taken that the presumption may not be so stretched as to permit suspicion taking the place of proof. No hard and fast rule can be laid down.

Hence when robbery and murder are proved to be integral parts of one and the same transaction, the presumption under Illustration (a) to S.114 arises, which is founded on the recovery of the stolen property belonging to the deceased, from the accused. However, precaution has to be taken that the presumption may not be so stretched as to permit suspicion, taking the place of proof. Keeping the above principle in mind, if we examine the recoveries, specifically on the question of the identity of the stolen goods, lack of identification of the recovered items, the delay occasioned in acting on the confession statements with respect to the last three recoveries and the infirmities pointed out by us regarding each of the recoveries as also the seizure made from the appellant, it is difficult, in the present case to even harbour a grave suspicion; leave alone proof beyond reasonable doubt.

It cannot be glossed over that the Bench then lays bare in para 21 stating that, Examining the seizure from the accused and the recoveries under S.27, we have to notice that even witnesses engaged in the business, could not identify the recovered goods confronted to them as the goods made on the specific recovery, especially since the items were mixed together, as recorded by the trial Court. PW32, who made the recovery from Jerooks house did not even attempt to identify them.

PW33, the I.O who arrested the accused and seized goods from him and made the other recoveries under S.27 merely narrated from the mahazar, without identifying the goods produced in Court. Except PW8 who identified MO69 as the items recovered from Jerooks house (incriminating only that accused), none of the other mahazar witnesses or the persons from whom the recoveries were made identified the specific goods recovered, which was also impossible. The testimony of PW25 has to be completely eschewed for reason of her presence itself, at the time of recovery, not being revealed from the mahazar.

It was the father of PW25, as revealed from Ext.P26, who identified the accused and gave him the keys to the almirah from which the beads & stones were recovered. Neither was he examined before Court nor any of the mahazar witnesses. The last three recoveries were also grossly delayed after the confession statements. None of these recoveries can incriminate the appellant/accused.

Here we have to pertinently notice that PW1, who was accompanying the police party, merely marked the material objects from MO15 to MO60. Obviously these were all alleged to be recovered on the confession statement of the accused or seized from the appellant/accused and the house of his co-accused. PW1 did not identify the separate items seized and recovered from the different locations nor did the I.Os who carried out the seizure and recoveries.

The items sold were all beads, stones and gems, which cannot be distinguished from that available in the market. We quite understand the practical difficulty of ensuring the identification of the goods, not distinguishable from those available in the market. But then, the benefit has to go to the accused and the prosecution's case based on the recoveries cannot lead to a conviction especially when PW1 failed to prove at least his purchase of similar goods.

We reiterate the principle stated in Ganesh Lal that the presumption based on Illustration (a) of S.114 can arise only if the theft is inextricably connected with the murder, and the items thieved are established to either belong to the deceased, or as in this case, belongs to the occupants of the house in which the deceased was staying and was found murdered.

Most significantly, the Division Bench then expounds in para 22 that, Pertinently, PW1, merely marked the various items confronted to him in Court as MO15 to MO60 even when there were no distinguishing features in the said items, from those available in the market; on which circumstance alone prosecution asserts ownership of the goods produced in Court, on PW1. It is also pertinent that PW1 did not produce a Stock Register to indicate the items stocked by him and its value, both at the shop and at the rented residential premises; despite the admission that the stock in trade was insured for an amount of Rs.12 lakhs.

Pertinent also is the fact that the immediate statement of PW1 to the police, on an assessment of the value and weight of the stolen goods, was that it would have been around 5 kgs, valued at Rs.1 lakh. Later, both these were enhanced to 75 kgs and more than Rs.4 lakhs; according to PW1, after verifying the accounts, which account books or ledgers were not produced before the Police or the Court. Hence, but for the fact that certain empty plastic containers were strewn over the floor of the rented residential premises, there is nothing to show that PW1 had in his possession or stocked in his residential building, crystal beads, stones, gems et al. PW1, according to PW9 was also involved in the manufacture or trade of empty plastic containers.

At the risk of repetition, there is absolutely no link, scientific, circumstantial, medical or under S.27 of the Evidence Act, connecting the accused with the crime of theft, much less the murder. Even according to the prosecution, other than the so called seizure and recoveries made there is nothing incriminating the accused. The seizure and recoveries made, as we already found, cannot be reckoned for the purpose of a conviction. There is also nothing to distinguish the items sold, from that available in the market, both the valuable goods and the bags in which the goods were alleged to have been carried. We find absolutely no reason to uphold the conviction and we set aside the same by reversing the judgment of the trial Court. We direct the accused to be released forthwith if he is not wanted in any other case. The Crl. Appeal is allowed.

Most distressingly, the Division Bench then laments in para 23 stating that, Before we leave the matter, we have to notice a very distressing aspect in the above case. The accused in the above case was arrested and arraigned before the Sessions Court in the year 2005, but he absconded. The case was split up and A2 was tried and convicted. The appellant, first accused, was arrested sometime in 2009 and he was an under-trial prisoner till 2017. We see from the proceedings sheet that the original documents were not available and there was a request made to the High Court for reconstructing the documents.

The matter was kept pending and communications were exchanged between the Sessions Court and the High Court and eventually as per the directions of the High Court, on 24.06.2013, the Public Prosecutor was directed to produce the photocopies of original records. The accused was produced and remand was extended periodically. On 12.03.2014 the charges were read over to the accused on being produced. However, the M.Os were not available. Again, the matter was kept pending for tracing out the material objects and then for verification of the said property, on tracing it out. Eventually, the trial commenced on 01.02.2017 with the examination of CW1 as PW1. The impugned judgment was passed on 14.06.2017, a little above four months. The distressing aspect is that from 2009 to 2017 the accused was an undertrial prisoner. Further, even after the conviction in 2017, the appeal was not filed. The present appeal, as a jail appeal, was filed in the year 2020, after three years.

While continuing in a similar vein, the Division Bench then expressing its deepest anguish over the pathetic state of affairs lamented in para 24 holding that:
We cannot but point out the distressing aspect of continued incarceration of under-trial prisoners and the delay occasioned in conducting trials. As per the statistics of the National Legal Services Authority, the ratio of under-trial prisoners to that of the total population in prisons in Kerala is 59% in the year 2020. We are of the opinion that the High Court could issue directions to the Trial Courts to take up matters based on the date of incarceration of convicts and also in fit cases to consider bail, if there is inordinate delay caused, for any reason not attributable to the accused; as in this case, due to the missing of original documents and then, the properties not being traced out. In the present case when we have acquitted the accused, it is appalling that he has completed 13 years in prison, almost the life term as per the Criminal Procedure Code; to enable commutation. We are also informed that the co-accused, who was convicted, has been released after 14 years of incarceration.

Most commendably, the Bench also then call upon in para 25 stating that:
In this context, we also have to call upon the District Legal Services Authorities [DLSA] to take up a more proactive role in the case of under-trial prisoners and also in cases like the present one and in the case of any convict, released after completing the sentence imposed, for rehabilitation; especially of first offenders. It is also for the State to formulate a scheme for such rehabilitation, which alone could realize the shift from the retributive and punitive theories of sentencing to the broader one intended of reformation. We also notice the long delay in filing appeals by indigent convicts, despite there being in existence Legal Aid Clinics at the Prisons, manned by Para Legal Volunteers of the Legal Services Authority. The Department of Prisons and Correctional Home shall also sensitize the Jail Authorities about the need to render assistance to the convicts in filing timely appeals before this Court and moving applications for suspending the sentence.

Adding more to it, the Bench then notes in para 26 that:
In the present case we see that the convict is incarcerated in the Central Prison, Thiruvananthapuram and is a native of Kayalpattanam. On his release, the Secretary, DLSA, Thiruvananthapuram shall, in co-ordination with the Secretary, DLSA having jurisdiction over Kayalpattanam or any other place where the accused intends to reside, provide assistance to enable effective rehabilitation. We hope the Tamil Nadu Legal Services Authority will also take a proactive role in rehabilitating the accused with the aid of the State Government.

Most remarkably, the Division Bench then directs in para 27 stating that:
A copy of this judgment shall be placed before the Hon’ble the Chief Justice, by the Registry, for the purpose of considering guidelines to be drawn up in prioritizing trials in criminal cases, with reference to the date of continued incarceration of the accused.

Furthermore, the Division Bench then directs in para 28 that:
We also direct the copy of the judgment to be transmitted to the Member Secretary, Kerala Legal Services Authority to address the concern expressed by us. The Member Secretary shall also transmit a copy of the same to the Secretary, Tamil Nadu Legal Services Authority.

Finally, the Division Bench then concludes by directing in para 29 that:
We direct the judgment to be placed before the Chief Secretary, State of Kerala to apprise the Government of the concern of this Court regarding the absence of a proper scheme for rehabilitation of prisoners and also the Director General of Police, Prisons and Correctional Services, for appropriate action. We keep the matter pending only to have an effective follow up on the rehabilitation of the acquitted person in this case. Post after two months for compliance.

In essence, we thus see that the bottom-line of this notable judgment is that the Kerala High Court has made it explicitly clear that trials ought to be heard based on the date of incarceration to avoid the long and endless detention of the under-trial prisoners. There should be no discrimination in this regard among them as this alone can ensure that under trial prisoners don’t keep rotting in jail for decades just because they don’t have the push and pull as also money power to hire a battery of lawyers to fight their cases because of their poor financial condition.

If this is ensured by all the courts only then will courts serve the true purpose of justice for all for which they are created of ensuring that no one is discriminated on any ground whatsoever! In addition, the Court also rightly called upon for providing proper legal aid to under trial prisoners so that their case could be solved in time with quality representation to argue before the Judge! It merits no reiteration that this must be sine qua non ensured by all the Courts in India so that the right to life and personal liberty which is a fundamental right under Article 21 of the Constitution is actually implemented in letter and spirit and not hijacked by rich elite only which alone will serve the true purpose of justice for which the courts are meant! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh.