IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 CRL.A.No. 732 of 2006() ----------------------- SC.584/2003 of ADDL.SESSIONS COURT, THALASSERY .................... APPELLANT : ACCUSED: ---------------------- VALOTHIL JOSE, S/O. VARKEY, MEMALA, ADAKKATHODE, KELAKAM. BY ADV. SRI.GRASHIOUS KURIAKOSE SRI.K.C.SANTHOSHKUMAR RESPONDENT : COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTORS SRI.NOBLE MATHEW & SRI.MOHAMMED ANZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. ************************* Crl.Appeal No.732 of 2006 ****************************** Dated this the 20th day of January 2010 JUDGMENT BASANT, J. Is absolute perfection in proof to be insisted to record/ uphold a verdict of guilty and conviction? Is there any distinction between the “belief” in the existence of a fact by a Court and its satisfaction “that a prudent person ought to proceed on the supposition that such fact exists”? Is such “belief” invariably to be insisted in all criminal cases? In the wake of the same definition for the expression `proved' in Civil and Criminal trials under Section 3 of the Evidence Act, how can the traditional insistence on a superior probative satisfaction in a criminal trial - that of proof beyond the shadow of a reasonable doubt, be justified? 2. These thoughts are aroused in our mind incidentally in this case, where the appellant challenges the verdict of guilty, conviction and sentence in an indictment for uxoricide under Section 302 IPC. 3. The prosecution alleged that the appellant herein has caused the death of his wife Jessy @ Jessamma, who was nine Crl.Appeal No.732 of 2006 2 months' pregnant, on 30.4.2002 at about 1.30 a.m. by inflicting multiple injuries on her by stabbing her with a sharp knife – MO11. The prosecution alleged that such injuries were inflicted by the accused on his wife on account of suspicion regarding her chastity. 4. A crime was registered on the basis of Exhibit P1 First Information Statement lodged by PW1, a neighbour at 11 a.m. on 30.4.2002, the offence having been committed earlier at 1.30 a.m. on that day. Exhibit P1(a) FIR was registered and PW17 after completion of investigation filed the charge sheet (final report) against the accused. 5. In all, the prosecution had relied on the oral evidence of PWs 1 to 17, Exts.P1 to P20 and M.Os 1 to 11. The accused had adduced the evidence of DW1 as a defence witness. The prosecution relied on 8 circumstances, which we shall narrate later, to drive home its case against the accused. 6. Though the prosecution expected to place before court evidence in support of the said eight circumstances and examined PWs 1 to 17, in support of its case, the major chunk of the so called independent witnesses turned hostile to the prosecution leaving the prosecution in a helpless situation. The Crl.Appeal No.732 of 2006 3 prosecution was constrained to contend that though the evidence that they had expected to adduce could not be adduced, sufficient evidence has been adduced of circumstances which clearly show that the offence alleged against the accused has been proved. 7. PW1, the neighbour who lodged Exhibit P1 First Information Statement turned hostile to the prosecution with impunity. He tendered evidence against his own version in Exhibit P1 as also the crucial portions of the case diary statement which he had allegedly given before the Investigating Officer. PW1 was not an eye witness. He was a neighbour, who was allegedly informed about the incident by PW14, the son of the accused. He then had allegedly rushed to the house of the accused and there the accused allegedly stated that the deceased had inflicted the injuries on herself. This version was completely disowned by PW1 and he was declared hostile and cross-examined. 8. PWs 2, 3 and 5 supported the prosecution case. They are the witnesses examined by the prosecution to show that the accused had a motive to do away with his wife. In short, the motive is that the accused had suspected the chastity of his Crl.Appeal No.732 of 2006 4 pregnant wife-the deceased. His suspicion was that PW5 was having an illicit relationship with her. 9. PW4, a neighbour, was examined by the prosecution with a view to prove its case that he had come to the scene immediately after the occurrence and the accused had advanced a version that the deceased had inflicted injuries on herself. This witness also did not support the prosecution case and he was declared hostile. 10. PW6 is an attestor to the inquest report Ext.P2. M.Os 1 to 3, the articles found on the dead body, were seized under Ext.P2. 11. PWs 14 and 15 are children of the deceased and the accused. As stated earlier, the prosecution wanted to examine them in support of its case that when they, who were sleeping in the adjacent room, woke up hearing the cries of the deceased, they had seen the accused and the deceased in the bed room grappling with each other. They (accused and the deceased) had injuries on them. Both PWs 14 and 15 turned hostile to the prosecution completely and did not support the case of the prosecution. In Court they advanced a totally different version. They were declared hostile and cross examined by the Prosecutor. Crl.Appeal No.732 of 2006 5 12. PW10 had conducted postmortem examination on the body of the deceased and had issued Ext.P5. The prosecution examined PW10 to prove that the deceased had the injuries described in Ext.P5 on her, that the injuries except injury No.21 could all be inflicted with M.O 11 and that injury No.21 can be the result of contact with a hard and rough surface. PW10 further asserted that the fatal injuries, ie. injury Nos.2 and 9 described in Ext.P5 are sufficient in the ordinary course of nature to cause death. 13. PW16 conducted substantial portion of the investigation and PW17 filed the charge sheet after completing the investigation. The accused was initially kept under surveillance. He was arrested on 30.04.2002 at 10 p.m. He allegedly made a confession statement and on the basis of the confession statement Ext.P3(a), M.O 11 was recovered from its place of concealment in the latrine at the back of the house of the accused. PWs.7 and 8 are witnesses who had allegedly witnessed the seizure of M.O 11 under Ext.P3 and had signed as attestors to Ext.P3 seizure mahazar. Both PWs 7 and 8 did not support the case of the prosecution. They turned hostile to the prosecution. They were declared hostile and were cross Crl.Appeal No.732 of 2006 6 examined. They admitted their signatures in Ext.P3, but did not subscribe to the contents of Ext.P3. 14. PW13 is the Sub Inspector of Police, who had recorded Exts.P1 F.I statement and registered Ext.P1(a) F.I.R. He found that the accused had injuries on his person and had sent the accused to PW9 for medical examination. PW9 found that the accused had 2 injuries on his person - one incised wound on the left palm and an abrasion on the right shoulder. Ext.P4 is the wound certificate issued by PW9 after examining the accused. 15. PW12 had prepared Ext.P9 sketch of the scene of occurrence on the basis of the scene mahazar and PW11, a head constable, had seized articles under Exts.P6, P7 and P8. It is not necessary to refer in detail to the Material Objects so recovered. 16. The accused, in the course of cross examination of the prosecution witnesses, when examined later under 313 Cr.P.C and by examination of DW1 and also with the help of the hostile witnesses, attempted to advance a version that the incident had not taken place in the manner alleged by the prosecution at all. We may note that PWs 1 and 4 - neighbours, PWs 14 and 15 - the children of the accused as also DW1 - another neighbour, Crl.Appeal No.732 of 2006 7 extended complete support to the accused in advancing this version. The version of the accused can be summarised as follows: 17. He is a quarry worker. After the day's work, he was returning to his house. In the course of his day's work, he had suffered the injury on the left palm described in Ext.P4. He had asked his son PW14 to come to the local bazar. He met his son PW14 there and together, after purchase of articles, they were returning to their house. PW15, the younger child and the deceased alone were available in the house. As they approached the house, they heard the cries of the deceased from the house. They allegedly saw one person lighting his torch and running away from the house. The accused could not trace or stop that person. They went into the house. Some neighbours also came to the house. They all found that the deceased had suffered the injuries described in Ext.P5. The accused had told every one truthfully that he saw a person running away from the house with a torch light. M.O11 knife was available at the scene. In short, the contention is that the deceased suffered injuries not at the hands of the accused as alleged by the prosecution, but at the hands of that other person, who allegedly was seen running Crl.Appeal No.732 of 2006 8 away from the house when the accused and his son PW14 reached near the house. He admitted that the 2nd injury - abrasion on the shoulder was suffered by him in the house. According to him that injury was suffered accidentally when his shoulder came into contact with the wall in his house. 18. The court below on an anxious consideration of all the relevant inputs, came to the conclusion that the prosecution has succeeded in establishing that the injuries found on the deceased described in Ext.P5 were all inflicted on the deceased by the accused. Accordingly the court below proceeded to pass the impugned verdict of guilty, conviction and sentence. 19. Before us, the learned counsel for the appellant/accused and the learned Public Prosecutor for the State have advanced their arguments. The learned counsel for the appellant contends that the prosecution evidence has been shaken. The prosecution has not succeeded in proving the facts on which the prosecution initially proposed to rely on. Circumstances which have been adduced in evidence are not sufficient or satisfactory to come to a safe conclusion of guilt against the accused. At any rate, the version advanced by the accused competes in probabilities with the version advanced by Crl.Appeal No.732 of 2006 9 the prosecution and the benefit of doubt must, in these circumstances, be unhesitatingly conceded to the accused. In these circumstances, the appeal may be allowed and the accused may be acquitted, contends the learned counsel for the appellant. 20. The learned Public Prosecutor on the other hand contends that it is true that the prosecution has not been able to adduce evidence about all circumstances which they initially wanted to rely on. But all the same, the surviving evidence that is available is more than sufficient for a prudent person to come to a conclusion that the injuries described in Ext.P5 must have been inflicted by the accused on the deceased. The learned Public Prosecutor argues that sufficient materials have been placed to satisfy the expression “proved” as defined under Section 3 of the Evidence Act to persuade the Court to “believe” that the fact - that the fatal injuries were inflicted on the deceased by the accused, exists. At any rate, the totality of evidence must satisfy the Court that a prudent person, in the circumstances of the case, must proceed on the supposition that such fact exists - ie. the injuries were inflicted on the deceased by the accused. Crl.Appeal No.732 of 2006 10 21. The expression “proved” is defined in Section 3 of the Evidence Act. What we have to consider is whether the circumstances established before the Court by the prosecution is sufficient to justify the conclusion of the court below that the injuries described in Ext.P5 were inflicted on the deceased by the accused. 22. We shall now consider whether the 8 circumstances, relied on by the prosecution enumerated below have been proved or not. We shall then consider whether the facts that have been proved is sufficient to justify the verdict of guilty and conviction. 23. The eight circumstances relied on by the prosecution are enunciated below: (i) Motive which the prosecution expected to prove through Pws 2 and 3 – sister and brother of the deceased and PW5, a former neighbour with whom the accused allegedly suspected that his wife was having illicit relationship. As a corollary the prosecution wants to rely on the circumstance that no other person has any motive or animosity against the deceased. Crl.Appeal No.732 of 2006 11 (ii) That the deceased suffered death by intentional infliction of injuries with a weapon like MO11 in the bed room of her house on the night of 29.4.2002. (iii) That the injuries (21 in all) suffered by the deceased were homicidal injuries which could not have been self-inflicted injuries. (iv) In her house on that night when she sustained the fatal injuries, there was no one other than the accused and their minor children, Pws 14 and 15. (v) That the children, who were sleeping in the adjacent room, woke up from their sleep on hearing the cries of their mother and found the accused and the deceased grappling on the floor of the bed room. (vi) That the accused offered an improbable and patently false explanation to those who came to the scene, that the deceased had inflicted the injuries on herself. (vii) When persons rushed to the scene on coming to know of the incident, the accused had two injuries – a bleeding injury on the left palm and an abrasion, on his person. Crl.Appeal No.732 of 2006 12 (viii) That MO11 knife was recovered from the place of its concealment by the police on the basis of the information furnished to the police by the accused in the confession statement which he allegedly made after his arrest. 24. The first circumstance relied on is the circumstance of existence of motive for the accused against the deceased. PWs 2, 3 and 5 have tendered evidence. We are left with not a semblance of doubt in our mind that evidence of motive spoken to by PWs 2, 3 and 5 which is relied on by the court below can safely be accepted. It has come out in evidence clearly from the evidence of PWs 2, 3 and 5 that the accused entertained suspicion about the chastity of his pregnant wife. Though it is urged that any one of the persons with whom the deceased was having illicit relationship (like PW5) may have entertained motive against her, this remains only a weird theoretical possibility and not a practical probability. The first circumstance relied on by the prosecution is thus established convincingly by the evidence on record. 25. That the deceased suffered injuries on the night of 29.04.2002 at the bed room in her house is established beyond Crl.Appeal No.732 of 2006 13 the shadow of a doubt. There is no serious challenge against this finding entered by the court below. That is the case of the accused also. In these circumstances, it is not necessary for us to delve deeper into that question. We agree that the second circumstance has been established satisfactorily. 26. The third circumstance relied on is that all these injuries are homicidal injuries and are not suicidal injuries. On this aspect also it is unnecessary to be detained any further. Both sides agree now and there is convincing evidence beyond doubt that the injuries described in Ext.P5 could not have been suffered otherwise than by the infliction of those injuries on the deceased by another. The court below has extracted the details of the injuries. We conclude that the third circumstance that these injuries are homicidal and are not suicidal injuries has also been established beyond doubt. 27. The fourth circumstance relied on by the prosecution is that the deceased was available in the house along with her husband-the accused. and 2 minor children at the time when the injuries were suffered by her. The learned Public Prosecutor would argue that if this circumstance is proved, in the wake of Section 106 of the Evidence Act, it will be up to the accused to Crl.Appeal No.732 of 2006 14 explain how the incident took place. In support of this proposition if precedents be necessary, the learned Public Prosecutor relies on Trimukh M.Kirkan v. State of Maharashtra [2006 (4) KLT 638 (SC)]. No precedent is necessary in support of that proposition. But the accused sets up a contention that the accused was not available in the house and that he along with PW14 was returning to the house. He also accepts that PW15 was available in the house. 28. We must agree that consequent to consistent and concerted hostility of PWs 1, 4, 14 and 15, there is no satisfactory evidence available before Court to conclude that the accused was present inside the house when the injuries were suffered by the deceased. We shall later proceed to consider whether the defence version can be accepted or not. At the moment, we need only note that though it is proved convincingly that the homicidal injuries were suffered by the deceased in the bed room of her house on the night of 29.04.2002, there is no direct evidence to conclude that the accused was available inside the house at that time. We do alertly note immediately that, going by his own version, the accused was available near the house along with PW14. Crl.Appeal No.732 of 2006 15 29. The fifth circumstance which the prosecution wanted to rely on was the statement of PW14 and 15 that when they woke up hearing the cries of the deceased, they had found the accused and the deceased grappling in the bed room both having suffered injuries. Consequent to the complete hostility of PWs 14 and 15, the prosecution has not been able to establish this fifth circumstance relied upon by them though it is established convincingly that PW15 was available in the house when the deceased suffered injuries and that PW14 was available at least near the house when the deceased suffered injuries. 30. The sixth circumstance relied on by the prosecution is that the accused offered a false explanation to those who came to the scene including PW1 that the deceased had inflicted injuries on herself. This is borne out clearly by Ext.P1 F.I statement, the signature in which is admitted by PW1 though PW1 now chooses to eat his own words and has not subscribed to the contents of Ext.P1. The evidence of PW1 and PW13 read along with Ext.P1 clearly and convincingly show that Ext.P1 statement was given by PW1 to PW13 and on the basis of that the F.I.R was recorded on the same day later. We find no semblance of doubt on this Crl.Appeal No.732 of 2006 16 fact and on the genuineness of Ext.P1 notwithstanding the deliberate attempt of PW1 to deviate from that version on oath. 31. The seventh circumstance relied on by the prosecution was that the accused had injuries on his person described in Ext.P4. Two injuries are described in Ext.P4. These injuries, if proved to have been suffered by the accused at the scene when the deceased suffered injuries, would have gone a long way to help the prosecution to prove its case. But consequent to the hostility of PWs 1, 4, 14 and 15, we have no evidence to show that the accused had suffered the injuries in the course of the same incident. Though all the witnesses in unison had stated before the police that there was a bleeding injury on the left palm of the accused when they first saw the accused and the deceased with injuries, the accused now has set up a contention that the injury on the palm was suffered not at the scene, but earlier at the quarry where he worked. We shall for a moment ignore injury No.1. It will be crucial to note that injury No.2 has not been explained satisfactorily by the accused. That injury is consistent with the case of the prosecution, supported by the plurality of injuries described in Ext.P5, that before the deceased suffered the last of those injuries found on Crl.Appeal No.732 of 2006 17 her person, there must have been a grappling and push and pull between the deceased and the assailant. The incised injury is on the left palm of the accused. It is not proved that he is a left hander. The possibility of that injury being caused when he wielded the weapon to inflict injuries on the deceased is not convincingly indicated. Going by the prosecution case that injury must have been suffered by an accidental contact with M.O11 when the accused was engaged in infliction of the multiple injuries on the deceased. Ext.P4 does not give details of the second injury - ie. the dimensions. The first injury is a 6 c.m long skin deep incised injury. The evidence of PW9 does not help us to fix the time of the injury satisfactorily. Though the incised injury on the left palm is not proved convincingly to have been suffered in the course of the incident, the fact remains that the accused had on his person that injury which is congruent to the version of the prosecution as also an unexplained injury – injury No.2 described in Ext.P4 immediately after the occurrence. 32. The eighth and the last circumstance relied on by the prosecution is the statement admissible under Section 27 of the Evidence Act allegedly given by the accused in the course of his Crl.Appeal No.732 of 2006 18 confession statement that he had concealed M.O 11 knife above the wall in the latrine behind the house where the incident took place. We have substantive evidence of this statement from PW16, the Investigating Officer. The evidence of PW16 shows that Ext.P3(a) information was furnished by the accused in the confession statement and that had led to the recovery of M.O 11 knife from its place of concealment in the latrine of the accused, which weapon, going by the evidence of PW10 doctor, could be used for the infliction of the injuries described in Ext.P5. The prosecution wanted to examine PWs 7 and 8 to prove this recovery. But both PWs 7 and 8 turned hostile to the prosecution. The evidence of PW16 about recovery is convincingly corroborated by the contents of Ext.P3 seizure mahazar. It is further corroborated by the admission of hostile PWs 7 and 8 that they had signed as attestors in Ext.P3 mahazar, the contents of which convincingly support the version of PW16. In these circumstances, we are of the opinion that the hostility of PWs 7 and 8 cannot in any measure persuade us to reject the evidence of PW16 supported by Ext.P3 that the recovery of M.O 11 was made on the basis of Ext.P3(a) information furnished by the accused. A reading of the evidence of PWs 7 and 8 shows Crl.Appeal No.732 of 2006 19 unmistakably that they are not worthy of credence and their hostility cannot deliver any advantage to the accused. Though it is not specifically urged, we have considered the purported incongruity in the version of the prosecution regarding the concealment of M.O11 by the accused. The case of the prosecution is that the accused initially offered an explanation that the deceased had inflicted the injuries on herself. If that be the version, the weapon used for the commission must have been at the scene of the crime and could not have