IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE [ENTITY] & THE HONOURABLE MR.JUSTICE [ENTITY] TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941 [CASE NUMBER] CP 3/2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS, MANNARKAD AGAINST THE JUDGMENT IN [CASE NUMBER] DATED 01-10-2014 OF ADDITIONAL DISTRICT & SESSIONS COURT - IV, PALAKKAD CRIME No.227/2012 OF Sholayar Police Station, Palakkad APPELLANT: CHANDRAN, C.No.3299, CENTRAL PRISON, KANNUR. BY [ENTITY] (STATE BRIEF) RESPONDENT: STATE OF KERALA SMT.S.AMBIKADEVI, SPECIAL PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-10-2019, THE COURT ON 15-10-2019 DELIVERED THE FOLLOWING: [CASE NUMBER] 2 JUDGMENT
[ENTITY], J.
The appellant [ENTITY], S/o.[ENTITY] has been charged under [SECTION] of [ACT] for murder of his wife- [ENTITY] by beating her with wooden stick. He was convicted by the learned Sessions Judge, Palakkad under [SECTION] of [ACT] in [CASE NUMBER] arising out of FIR No.227/2012 registered with Sholayar Police Station and sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- in default to undergo further rigorous imprisonment for one year more.
2. The factual scenario emerging from the records of this case is that on the night intervening between 25.8.2012 and 26.8.2012 at some time between 11 pm. and 7 am. alleging that the 'curry' prepared by the deceased was not up to the mark, the accused beat her with wooden stick, a dangerous weapon, on several times inflicting grievous injuries and by smothering her to death. [CASE NUMBER] 3
3. A large number of witnesses (22 in all) had been examined by the prosecution in support of its case and over 35 documents were exhibited. MOs.1 to 11 were marked as material objects.
4. In a brief outline of the material aspects, it may be noticed that in the present case, the appellant was charged with imputation that he killed his wife by beating and smothering. The matter rested on circumstantial evidence where, according to the prosecution, the relationships of the husband and wife were too strained; due to which the appellant had been ill-treating his wife for a considerable long time and murdered his wife on the fateful night.
5. For the incident in question, Ext.P2 First Information Statement was lodged by PW2 [ENTITY] who is the brother-in-law of the accused and the brother of the deceased. On being informed, he reached the occurrence [CASE NUMBER] 4
place at 12 noon on the next date of occurrence and saw the dead body of his sister when peeping through the window. PW20 the Sub Inspector of Police, Sholayar recorded Ext.P2 statement of PW2 and registered Ext.P22 FIR on 26.8.2012 at 12 noon. Thereafter, PW20 prepared Ext.P7 inquest report. As part of the inquest, PW20 noted the fatal injuries on the body of the deceased. Column No.11 is pertaining to the apparent cause of death. PW20 noted that the deceased died as a result of inflicting injuries with material objects. As part of inquest, PW20 removed the clothes of the deceased and seized MOs.4 to
6. MO4 nighty had blood stains.
6. PW21 the Circle Inspector of Police, Agali took over the investigation on 27.8.2012 and reached the spot at 9.15 pm. The accused was arrested in accordance with law. On being questioned while in custody, PW21 recorded Ext.[SECTION] confession statement of the accused and [CASE NUMBER] 5
as led by the accused on 28.8.2012 at 11.30 am. MO3 wooden stick having 85 cm. length with hair entangled over it was recovered as per Ext.P8 seizure mahazar from the compound of the house bearing No.IX/430 of Sholayar Panchayat. Further, as per Ext.[SECTION] confession statement of the accused that he had kept his shirt and lungi at his house, PW20 recovered MO1 blood stained 'mundu' and MO2 half-sleeve blood stained shirt in the presence of PW8. PW21 collected the material evidence for the prosecution, questioned the witnesses, recorded their statements and filed the final report before court.
7. Having regard to the subject matter of this appeal and the questions involved, it would be advantageous to take note of the relevant aspects emerging from the statements of material witnesses in requisite details.
8. PW11-the Doctor, who conducted autopsy on [CASE NUMBER] 6
the body of the deceased, had issued Ext.P14 postmortem certificate in which as many as 58 antemortem injuries were noted. On going through the verbatim reproduction of Ext.P14 postmortem certificate in para 33 of the judgment, there are several abrasions, lacerations, contusions and nail marks on the body of the deceased. According to PW11, there were nail marks around the mouth and nostrils and laceration under the lips. However on going through Ext.P14 postmortem certificate, we find that there are several lacerations, contusions and abrasions all over the body of the deceased. Injury No.31 would show that contusion 33x9.5 cm. muscle deep on the upper aspect of right upper arm, forearm and wrist 12 cm. below shoulder. PW11 opined that there was fracture of both bones of right forearm just above wrist joint. According to PW11, fracture ulna and radius could be caused due to striking with blunt object such as MO3. [CASE NUMBER] 7
PW11 concluded that [ENTITY] died due to smothering.
9. PW11 in his evidence had also explained that the injuries found on the face is sufficient to indicate that the deceased died due to smothering. There are other parts of the postmortem report and the evidence of PW11 which would also require a specific notice in so far as the offence under [SECTION] of [ACT] is concerned.
10. The prosecution mainly relies upon the evidence of PWs.3, 5, 6 and 12 to prove the offence. PW3 [ENTITY] is none other than the mother of the accused. She was residing with the accused and his deceased wife. The deceased had four children born out of the wedlock with the accused. PW3's husband is PW5 [ENTITY]. [ENTITY] was residing separately. PWs.3 and 5 stated that their son, daughter-in-law and four children were residing together. They testified that the accused used to consume liquor and pick up quarrel with his wife. According to [CASE NUMBER] 8
PW3, when the accused came home on the date of occurrence he asked his wife as to what was the 'curry' cooked by her for him. When her daughter-in-law said that it was tomato curry, there was an altercation between the two. Considering the tensed situation, she took the children and proceeded towards the residence of her daughter [ENTITY] and all of them went into the forest. She stated that they had spent the night in the thick forest. On the next day she met PW12 [ENTITY] who is the son of her husband's brother. She had returned home with PW12 [ENTITY] who told her that her daughter-in-law had died. As indicated earlier, [ENTITY] lodged Ext.P2 First Information Statement before Police.
11. In cross-examination PW3 stated that she did not witness the occurrence. According to her, she did not return home on the date of occurrence. PW5 [ENTITY] who is the husband of PW3 also stated that though he [CASE NUMBER] 9
heard hue and cry from the house of the accused he did not think it fit to go and enquire the details on the date of occurrence. He also turned hostile to the prosecution. However, he stated that on several occasions the accused had assaulted the deceased for which complaints were filed before the police.
12. PW6 is the sister of the accused. She reiterated the version of PWs.3 and 5 that accused and his wife used to consume liquor and pick up quarrel with each other. She admitted that on the date of occurrence her mother came there with the children of the accused and all of them went into the forest. She also turned hostile to the prosecution by denying the occurrence.
13. PW12 [ENTITY] supported the case advanced by PW3 in certain aspects. According to him, on the date of occurrence around 9.30 am. PW3 came to his residence and told him that on the previous night the accused had [CASE NUMBER] 10
picked up quarrel with his wife after consuming liquor. She also told him that she along with the children of the deceased had left the house and gone to the forest. PW12 added that as requested by PW3, he along with PW3, [ENTITY] (PW6) and two children went to the house of the accused and reached there around 10 am. When he peeped through the window he could see [ENTITY] lying on the floor of the kitchen and the accused was sleeping nearby. Both the accused and [ENTITY] were lying on a mat at the same place. All of them called the accused and he woke up immediately. The subsequent conduct of the accused is relevant in this context. PW12 stated that the accused called his wife but there was no response from her. Thereafter the accused sat nearby. According to PW12, it appeared that [ENTITY] had passed away. He could see injuries on the head of [ENTITY].
14. PW12, [ENTITY] admitted in cross-examination [CASE NUMBER] 11
that there is a distance of 3 kms. between his house and the house of the accused. PW5 [ENTITY] who is the father of the accused is staying separately. PW6 [ENTITY], the sister of the accused and PW3 the mother of the accused did not witness the occurrence.
15. The learned trial Judge relied upon the following incriminating circumstances against the appellant which established his guilt and accordingly the accused was convicted and sentenced as aforesaid.
(i) The accused was sharing the very same bed with the deceased on the date of occurrence.
(ii) The accused was a drunkard and was in the habit of beating his wife.
(iii) The accused had consumed liquor on the date of occurrence.
(iv) The accused picked up quarrel with the deceased on the date of occurrence which compelled PW3 to leave the [CASE NUMBER] 12
house along with the children to the residence of PW6 and from where to the forest.
(v) The accused was alone with the deceased wife in the house on the date of occurrence.
(vi) There was no possibility of anyone else entering the room and committing the crime.
(vii) The deceased was found dead with injuries all over the body by PW3, PW6, PW12 and two children of the deceased.
(viii)There was no case of sexual assault upon the deceased.
(ix) The postmortem clearly brings out that the deceased was smothered to death and death was not accidental.
16. We have heard Sri.[ENTITY], State Brief appointed by this Court for the appellant and Smt.[ENTITY], learned Special Public Prosecutor for the respondent-State.
[CASE NUMBER] 13
17. The learned counsel for the appellant Sri.[ENTITY], submitted that the case of the prosecution mainly rests on the testimony of PWs.3, 5, 6 and 12 coupled with the recovery of MOs.1 to 3 by PW21 based on the confession made by the accused in accordance with [SECTION] of the [ACT]. It is a fact that prosecution witnesses had no occasion to witness the occurrence as alleged by the prosecution. All of them turned hostile to the prosecution. All the witnesses deposed that the appellant consumed liquor at the place of occurrence. However, no liquor bottle or glasses were recovered or seized during investigation. The learned counsel for the appellant submits that the prosecution failed to examine material witnesses including the children of the deceased. The case of the prosecution is that four children of the deceased were residing along with the accused and deceased. The learned counsel for the [CASE NUMBER] 14
appellant further submitted that chance prints were not lifted from the place of occurrence though criminal law was set in motion by PW12 immediately after the occurrence. Elaborating his submissions, the learned counsel pointed out that the accused was present at the place of occurrence and did not make any attempt to run away from the place. According to the learned counsel, he was totally unaware of the murder and he made an attempt to wake up his wife when he was alerted by PWs.3 and 12. It was further submitted that motive to commit the crime is not proved. Moreover, on the close of the prosecution evidence, while recording the statement of the accused under [SECTION] of [ACT], the accused stated that around 9.30 pm. he came home drunk. He also stated that his wife consumed liquor on that day and he could not remember what exactly happened thereafter. He further stated that he slept on the floor nearby his [CASE NUMBER] 15
wife. Ext.P11 scene mahazar irresistibly would lead to the inference that a chopper was located adjacent to the place where the dead body was found. However, the chopper was not recovered by the police. It is not the case of the prosecution that the appellant was armed with a weapon or he came to the house with premeditation of eliminating his wife or smothering her to death. The learned counsel for the appellant submitted that recovery of MO3 and the principles of last seen together are not sufficient to convict an accused for the offence under [SECTION] of [ACT].
18. Rebutting the submission of the learned counsel for the appellant, the learned Special Public Prosecutor Smt.[ENTITY], submitted that the deceased was last seen with the accused in the house and it was proved that the accused was the only person with the deceased in the house on the date of occurrence. Same was testified by PWs.3, 5 and 6 who are close relatives of the accused [CASE NUMBER] 16
which find corroboration from PW12. Ext.P1 was lodged at the earliest opportunity when there was no scope for any fabrication or manipulation. The learned Special Public Prosecutor submitted that the accused, deceased and prosecution witnesses are Tribals living in the forest and their evidence lends assurance to the prosecution case. The mere fact that PWs.3, 5 and 6 turned hostile to the prosecution, the same is not sufficient to discard the entire prosecution case and circumstances involved in the case. The accused had a motive to do away with the deceased which stands proved from the previous conduct of the accused towards the deceased which has been substantiated by the complaint filed by the deceased before the police and Ext.P20 undertaking by the accused that he would not ill-treat his wife in future. Ext.P20 would show that the accused was warned and let off by the police consequent to the complaint filed by the [CASE NUMBER] 17
deceased. It was further submitted that the disclosure statement made to the police as per Exts.[SECTION] and [SECTION] was admissible in evidence in view of [SECTION] of [ACT] and since recovery was effected pursuant to the same, it was admissible for all practical purposes. It was submitted that the judgment does not suffer from any infirmity which calls for interference.
19. We have considered the rival contentions of the learned counsel for the appellant and the learned Special Public Prosecutor and perused the materials placed on record.
20. Before dealing with the rival contentions of the parties, it is advantageous to have a glance of the various circumstances involved in this case. It was opined by PW11 that the cause of death was smothering. Ext.P30 photographs relating to the photos of place of incident and the deceased would inter alia show that no serious injuries [CASE NUMBER] 18
are not visible on the face of the deceased. However, the deceased sustained serious injuries all over her body. Ext.P7 inquest report is self-explanatory to show that no serious injuries were noted by PW20 on the face of the deceased immediately after the occurrence. In Ext.P7 it is stated that the deceased died of assault. Ext.P14 postmortem certificate does not show the exact time of the death of the deceased. One of the objects of conducting postmortem examination is to find out the time of the death of the deceased. However, the time of death is conspicuously absent in Ext.P14 certificate. The prosecution witnesses have no case that the deceased died of smothering.
21. From the evidence adduced by the prosecution the following circumstances are established:-
(i) The deceased was found dead on the date of occurrence.
[CASE NUMBER] 19
(ii) The accused was along with the deceased in the house where the occurrence took place.
(iii) As per the postmortem report, the cause of death was smothering.
(iv) MOs.1 to 3 were recovered by PW21 based on the confession statement of the accused.
22. It is not in dispute that the basis of conviction is solely on the circumstances relied on by the prosecution. In [PRECEDENT] a bench of three-Judge of the Supreme Court on the basis of circumstantial evidence laid down the following conditions which must be fulfilled before a case against an accused can be said to be fully established:-
"1. The circumstances from which the conclusion of guilt is to be drawn should be fully established; [163D]
2. The facts so established should be [CASE NUMBER] 20
consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; [163G]
3. The circumstances should be of a conclusive nature and tendency;[163G]
4. They should exclude every possible hypothesis except the one to be proved; and [163H]
5. There must be a 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. [164B] ".
These five golden principles followed in various decisions of the Supreme Court constitute the panchasheel of the proof of a case based on circumstantial evidence. Needless to say even in the absence of eye witnesses, if various circumstances relied on by the prosecution relating to the guilt of the accused is fully established beyond doubt, the court is at liberty to award conviction [CASE NUMBER] 21
based on circumstantial evidence.
23. The first and foremost evidence relied on by the prosecution is the evidence of PW3. PW3 was residing with the accused and deceased on the date of occurrence. She saw the accused and the deceased on the date of occurrence. As there was an altercation between the accused and the deceased she left the house along with the children to the house of PW6 and from where all of them left to the forest and spend a night in the forest. When she came back to the house along with PWs.6 and 12 in the next day she found the deceased murdered. When they peeped through the window, they saw the accused sleeping on the same mat where the dead body of the deceased was found. They called the accused and he woke up immediately. He made several attempts to call the deceased. The conduct of the accused would reveal that he was not aware of the entire incident which [CASE NUMBER] 22
took place in the previous day. He had offered an explanation on being questioned under [SECTION] [ACT] that he was not aware of the incident which took place inside his house. It is clear from Ext.P14 postmortem certificate that the deceased sustained several injuries all over her body including fracture to her hand. The prosecution has not offered any explanation as to how these injuries were sustained to the deceased. Though the prosecution has developed a case that the deceased succumbed to the injuries sustained by her, the postmortem report inter alia reveals that the deceased died of smothering. The case advanced by the prosecution is inconsistent. On a perusal of the width and length of MO3 alleged to have been used to inflict injuries on the deceased, it is disclosed that the corresponding width and length of the injuries found on the body of the deceased as noted by PW11 in Ext.P14 postmortem certificate. [CASE NUMBER] 23
Blood sample taken from the crime scene was not sent for examination. No reasons are stated by the prosecution as to how so many abrasions are sustained by the deceased in the occurrence. Injury Nos.49 to 56 are abrasions on the left side of the dead body. Injuries Nos.4, 6, 13 to 15, 18 to 20, 22 to 30, 48, 57 and 58 are nail marks. Though nail marks were present in the body of the deceased, prosecution did not make any attempt to conduct DNA examination to prove the occurrence. It is a fact that the accused was arrested immediately after the occurrence. Still no earnest attempt was made by the Investigating Officer to locate the skin trace of the deceased from the body of the accused particularly from the nails of the accused immediately after his arrest. PW12 stated that the accused was present when the police came to the scene of occurrence and the police prevented the accused from going away. This is the clear circumstance to show [CASE NUMBER] 24
that the accused was very much available on the spot.
24. Further, Ext.P11 scene mahazar would show that there was a tussle on the date of occurrence. The inquest report would reveal that the deceased was assaulted and murdered. The prosecution had no case initially that the accused was smothered to death. However, the prosecution has improved the version based on Ext.P14 postmortem report that the accused died due to smothering. No question was asked to PW11 when he was examined before court touching the nature of injuries all over the body of the deceased particularly with reference to other injuries found on the deceased. It is practically impossible to sustain 38 injuries on the body of the deceased with MO3 stick. On a comparison of the width of the injuries in Ext.P14 postmortem certificate with that of MO3 wooden stick, all the injuries could not be inflicted with MO3. In view of the above circumstances, [CASE NUMBER] 25
we are of the view that the last seen theory is a weak kind of evidence by itself to convict the accused in this case.
25. It is true that, once it is proved by the prosecution that the accused was present at the time of occurrence and the wife suffered a homicidal death, the burden was heavy on the part of the appellant to show how his wife suffered a homicidal death. The prosecution case is that the wife died due to smothering. [SECTION] of the [ACT] requires a person having special knowledge of the fact to explain the same as laid down by the Apex Court in [PRECEDENT], [PRECEDENT], Sidhartha Vashisht@Manu Sharma v. State (NCT of Delhi) [AIR 2010 SC 2352] and [PRECEDENT], this legal position is clarified. In this case the facts are different. To sustain conviction on the [CASE NUMBER] 26
basis of circumstantial evidence, all links in the chain of circumstances should not be explainable away on any other hypothesis except that the accused is guilty. In this case the accused offered explanation that he was fully drunk on the date of occurrence and he was not aware of the actual occurrence. The alleged weapon recovered and the injuries found on the body of the deceased do not tally each other. The prosecution failed to adduce scientific evidence to prove the occurrence. There is no scientific evidence to connect the accused with the crime. The manner of injuries sustained by the deceased are not explained in full. The accused was very much present at the spot. He did not make any attempt to run away from the spot. He had furnished an explanation when he was questioned under 313 statement. It could not be termed as a wrong explanation. Merely because the accused and the deceased were not on good terms, the same could not [CASE NUMBER] 27
be a reason to do away with her. The motive was not established in full. The corroborative evidence available in the form of recovery is not sufficient to convict the accused for the offence of murder. The chain of circumstance leading to the inference for the guilt of the accused is broken. Under the circumstance, we are of the view that the benefit of doubt must go to the accused.
26. In [PRECEDENT] in para 6 the Supreme Court held as follows:-
"6. We have considered the respective submissions and the evidence on record. There is no eye witness to the occurrence but only circumstances coupled with the fact of the deceased having been last seen with the appellant. Criminal jurisprudence and plethora of judicial precedents leave little room for reconsideration of the basic principles for invocation of the last seen theory as a facet of circumstantial evidence. Succinctly stated, it may be a weak kind of evidence by itself to found conviction upon the same singularly. But when it is coupled with other [CASE NUMBER] 28
circumstances such as the time when the deceased was last seen with the accused, and the recovery of the corpse being in very close proximity of time, the accused owes an explanation under [SECTION] of the [ACT] with regard to the circumstances under which death may have taken place. If the accused offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, conviction can be based on the same. If there be any doubt or break in the link of chain of circumstances, the benefit of doubt must go to the accused. Each case will therefore have to be examined on its own facts for invocation of the doctrine."
27. On a consideration of the entire facts and circumstances relating to the time, the place of occurrence, relationship of the accused and deceased, the nature of injuries sustained by the deceased all over the body, the place where they were last seen together and [CASE NUMBER] 29
the time when they were last seen together, we are of the view that the relationship of the accused with that of the deceased and the place of the crime and the surrounding circumstances would unhesitatingly create suspicion in our mind. The theory of last seen evidence and the recovery effected would not be sufficient to sustain a conviction for the offence under [SECTION] of [ACT]. In our opinion, the judgment and order of conviction passed by the trial court is not based on proper appreciation of evidence and circumstance from which the conclusion of guilt is to be drawn based on circumstantial evidence.
28. Consequently, the appeal is allowed. The impugned judgment and order convicting and sentencing the appellant for the offence under [SECTION] of [ACT] are set aside. The appellant is extended the benefit of doubt and is, accordingly, acquitted. He is set at liberty forthwith, if he is not required in connection with any [CASE NUMBER] 30
other case.
Before parting, it is felt that we must express appreciation for the sincere dedication, legal acumen and the manner in which Sri.[ENTITY], State Brief for the appellant, conducted the case.
[ENTITY], JUDGE Sd/-
[ENTITY], JUDGE skj