IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH TUESDAY, THE 6TH DECEMBER 2011 / 15TH AGRAHAYANA 1933 CRL.A.No. 1018 of 2007() ------------------------ SC.847/2005 of ADDL. SESSIONS COURT (FAST TRACK COURT -II (ADHOC), THRISSUR CP.98/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... APPELLANT(S): APPELLANT/ACCUSED ------------------------------- KRISHNAN, S/O PEEDIKAVALAPPIL GOVINDAN, VELLANCHIRA, AMBALLUR, MUKUNDAPURAM. BY ADV. SRI.PROMY KAPRAKKATT SRI.K.N.ABHILASH RESPONDENT(S): --------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SRI. GIKKU JACOB THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06/12/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & V. CHITAMBARESH, JJ -------------------------------------------- Crl. Appeal No. 1018 of 2007 ------------------------------------ Dated this the 6th day of December, 2011. JUDGMENT Basant, J. (i) Are the circumstances relied on by the prosecution sufficient to enter a safe and sure finding of guilt against the appellant? (ii) Do the circumstances generate any reasonable doubt in the mind of the court about the complicity of the appellant? 2. These are the questions raised for consideration by Advocate Sunil Nair, who assails the verdict of guilty, conviction and sentence imposed on the appellant under Section 302 IPC. 3. The appellant, a person aged about 66 years is alleged to have caused the death of his daughter, a young unmarried girl aged 21 years, by inflicting two injuries on her with MO1 knife inside their residence at about 3 p.m. on 06.06.2004. The alleged relationship between the deceased and PW6, an eligible bachelor of the locality is alleged to have 2 CRA. No. 1018/2007 operated as the motive for the murder. 4. Investigation commenced with Ext.P1 First Information statement lodged by PW1 before the police on the basis of which Ext.P8 First Information Report was registered by the police. Investigation was completed and final report was filed by PW14. The learned Magistrate after complying with all legal requirements committed the case to the court of Sessions. The appellant denied the charge framed against him by the learned Sessions Judge under Section 302 IPC. Thereupon the prosecution was directed to adduce evidence in support of its case. 5. The prosecution examined PWs 1 to 14 and proved Exts.P1 to P15. MOs 1 to 5 were also marked. PW1 as stated earlier is the informant. She, a neighbour had heard the cries and had gone to their house of the appellant. There she allegedly found the appellant with MO1 weapon and the deceased lying with injuries. She passed on the information to PW4 a neighbour and PW3 a relative of the deceased. They also came to the scene to see the deceased lying death with injuries and the accused available in the house with no 3 CRA. No. 1018/2007 explanation to offer as to how his daughter had suffered injuries. PW5 is the mother of the deceased and PW6 is allegedly her boy friend/fiance. PWs 2, 7 and 8 are attestors to documents prepared by the police in the course of investigation. PWs 9, 12, 13 and 14 are police officials who had various roles to play in the registration of the crime, investigation and the filing of the final report. PW10 Doctor, had conducted the postmortem examination. PW11, village officer had prepared the scene plan. 6. After the close of the prosecution evidence, the accused was examined under Section 313 Cr.Pc. The accused had taken up a fairly definite stand in the statement filed by him at the close of his examination under Section 313 Cr.PC. He admitted his presence in the house on that day. But according to him, he had left the house at 10 a.m. and had returned to the house later by about 3 p.m. only to see his daughter lying with injuries in his house/scene of the crime. According to him, there was no proper investigation and he was falsely implicated as an accused in the case. He did not examine any defence witnesses. He relied on Exts.D1 to D5 4 CRA. No. 1018/2007 photographs of the dead body taken which were available in the file. 7. The learned Sessions Judge came to the conclusion that the prosecution has satisfactorily established the offence under Section 302 IPC alleged against the appellant. Accordingly the learned Sessions Judge proceeded to pass the impugned judgment. 8. We have heard the learned counsel for the appellant, Sri. Sunil Nair Palakkat and the learned Public Prosecutor. The learned counsel for the appellant submits that the prosecution has not succeeded and establishing the circumstances relied on by the prosecution. At any rate, the circumstances proved in the case cannot justify a safe inference of guilt against the appellant. In any case, the benefit of doubt ought to have been conceded to the appellant, contends the counsel. 9. The learned Public Prosecutor on the contrary contends that the prosecution has established all the relevant circumstances beyond the semblance of any doubt. The irresistible conclusion flowing naturally from the proved 5 CRA. No. 1018/2007 circumstances is the complicity of the appellant. There is no scope for any benefit of doubt. The accused cannot claim the benefit of any such non existent doubt. In these circumstances, the appeal may be dismissed, argues the learned Public Prosecutor. 10. An appellate judgment is and ought to be read as a continuation of the judgment rendered by the trial court. In that view of the matter we deem it unnecessary to re-narrate the oral and documentary evidence in the case. We need only observe that the oral evidence of PWs 1 to 14 and the contents of Exts.P1 to P15 have been read over to us in detail. We have been taken through Exts. D1 to D5. Our attention has been drawn to the nature of MOs 1 to 5. The charge framed by the court, the answers given in the course of examination under section 313 Cr.PC. as also the contents of the statement filed by the appellant at the close of his 313 examination have been brought to our notice. We will advert to specific material wherever necessary in the course of discussions. 11. The case rest entirely on circumstantial evidence. The prosecution has not been able to trace any witness, who 6 CRA. No. 1018/2007 has witnessed the incident proper. It is unnecessary to advert to precedents about the manner in which evidence has to be appreciated and conclusions drawn in a case resting entirely on circumstantial evidence. We need only reiterate the well settled law on the point. 12. The burden is and does always rest on the shoulders of the prosecution to prove the case against the accused beyond reasonable doubt. In a case resting on circumstantial evidence, the burden is heavy on the prosecution to prove the circumstances relied on by the prosecution. Such circumstances must be firmly and safely established. Such circumstances must form strong links of a strong chain which unerringly and clinchingly points to the guilt of the indictee - to the exclusion of every reasonable hypothesis of innocence of the accused. We may hasten to observe that it is not been number of links that matter. The probative significance of the circumstances and the safe inferences that can be drawn from the proved circumstances will be most material and crucial. The question of benefit of doubt is to be considered only if the circumstances established 7 CRA. No. 1018/2007 satisfactorily can point to any other alternative theory consistent with the innocence of the accused. If even a reasonable doubt exists on the plausibility of the alternative theory advanced by the indictee consistent with the innocence of the accused, the benefit of doubt will have to be un reservedly conceded to the appellant. 13. Having thus reminded ourselves of the law relating to the burden on the prosecution in a case resting on circumstantial evidence, we shall now try to enumerate the various circumstances relied on by the prosecution. We shall then consider whether these circumstances have been established. We shall thereafter considered the safe inferences that can be deduced from the proved circumstances. At that juncture we will again ascertain whether there is any scope for reasonable doubt aroused in the mind of the court. 14. The prosecution relies on the following circumstances. 1. That the deceased met with homicidal death. 8 CRA. No. 1018/2007 2. Motive - strain in the relationship between the father and the daughter consequent to the alleged affection/intimacy/love between the deceased and PW6 who had proposed to marry the deceased. 3. The evidence of PW5, the mother of the deceased that when she went for work on that morning from her house only the deceased and the appellant were available in the house. 4. The oral evidence of PW1, a neighbour that she heard the cries of the deceased that she was being killed and that when she rushed to the house she found the accused with MO1 knife and the deceased with injuries - both of them inside the house. 5. When PW1 rushed to the scene, the appellant tried to send her away with the explanation that nothing untoward had taken 9 CRA. No. 1018/2007 place in the house. 6. The evidence of PWs 3 and 4 that when they reached the house of the appellant after getting information from PW1 they saw the appellant inside the house and the deceased with injuries. 7. Presence of human blood marks on MOs 4 and 5 cloths of the deceased, which she was wearing at the time of crime. 8. Absence of any explanation for the appellant for what transpired inside the house and about the circumstances under which the deceased had those injuries on her person. 15. We shall now proceed to consider whether these circumstances have been established satisfactorily. 16. Circumstance No. 1:- That the deceased had suffered fatal injuries and had succumbed to those injuries is established beyond doubt by the oral evidence of PW10 doctor who conducted postmortem examination on the body of the deceased. There were two serious/fatal injuries suffered by 10 CRA. No. 1018/2007 the deceased and the evidence of PW10 shows that those injuries could be inflicted with a weapon like MO1. The injuries suffered were sufficient in the ordinary course of nature to cause death, it is further opined by PW10. Not a semblance of doubt exist now about the cause of death of the deceased. It can safely be concluded that she suffered death on account of homicidal injuries suffered by her described in Ext.P4. This circumstance is thus clearly established. 17. Circumstance No. 2 :- According to the prosecution, the appellant was dissatisfied that his daughter the deceased was having a relationship of love/affection with PW6. PW6 did not specifically admit that there was any such love affair. But his evidence clearly shows that he wanted to marry the deceased. PW6 is a next door neighbour. The appellant did not relish the relationship. Obviously no motive sufficient ordinarily to cause death of the deceased is revealed. But it is evident that the appellant did not relish this relationship between the deceased and PW6 and the proposal made by PW6 to marry the deceased. To this extent the existence of strain/disagreement is indicated. Circumstance 11 CRA. No. 1018/2007 No. 2 is to that extent established. 18. Circumstance No. 3 :- Evidence reveals that the appellant along with his wife PW5 and their daughter the deceased were residing in the house inside which the incident took place. PW5, the mother of the deceased was herself employed. The appellant was employed at Thrissur and he used to come only on a couple of days every week to his residence. On the date in question, he was available at the house. PW5 says so and the appellant does not dispute that circumstance. According to the appellant also he and his deceased daughter were available in the house after PW5 left the house. The evidence of PW5 shows that when she left in the morning from her house there was only the appellant and the deceased in the house. This circumstance is thus established convincingly by the prosecution. In the absence of any specific dispute, it is unnecessary to advert in greater detail to the proof of this circumstance. 19. Circumstance Nos. 4 and 5 :- The accused takes up a contention that he left the house that morning at about 10 a.m. and returned only by about 3 p.m. According to him, at 12 CRA. No. 1018/2007 that point when he returned, he found his daughter the deceased lying with fatal injuries inside the house. 20. As against this version of the appellant, we have the evidence of PW1 that she heard the cries from the house of the appellant and she rushed to that house. There she had allegedly seen the accused with MO1 knife and the deceased lying with injuries. It is the further case of PW1 that when the appellant saw her rushing to the house, he tried to deter her by telling her that there was nothing untoward and that she should go away. 21. If the evidence of PW1 is believed, It does constitute a formidable circumstance against the appellant. That can be made use to distinguish between the case of the prosecution and the fairly specific stand taken up by the defence. It is argued that PW1is not worthy of acceptance. We have gone through the cross-examination of PW1. We have evaluated the broad probabilities. There is nothing in evidence to even remotely suggest that the version of PW1 deserves to be approached without suspicion or distrust. The evidence of PW1 is supported by the oral evidence of PWs 3 13 CRA. No. 1018/2007 and 4. Her evidence is further supported by the contents of Ext.P1 FI statement. Her evidence is further supported by the description of the scene mahazar and the availability of MO1 knife in the premises. Suffice it to say that we find no reason not to accept and act upon the oral evidence of PW1. 22. The learned counsel for the appellant submits that the house of PW1 is situated to the east of the house of the appellant. Eventhough it is stated by witnesses (and also the scene mahazar) that the house faces east. A contention is raised with the help of Ext.P9 scene mahazar and Ext.P7 plan that there is no opening to the east of the house. Less said about this contention, the better. We refer to this contention only because of the vehemence with which this argument is raised by the learned counsel for the appellant. The evidence clearly indicates that the house of the appellant faces east. An opening towards east is not described in Ext.P9 scene mahazar or marked in Ext.P7 plan. But this is too inadequate an excuse for any prudent mind to reject the evidence of PW1 and the totality of other inputs available that the house of the appellant faces eastwards. It obviously is an omission to show 14 CRA. No. 1018/2007 an opening to room No. 2 of the house described in Ext.P7 plan. If we accept the contention of learned counsel for the appellant we will have to assume in a most un reasonable and perverse manner that there is no entrance to room No. 2 and it is walled on all four sides. This argument does not at all impress us. 23. The learned counsel for the appellant relies on various circumstances - of inadequacies on the part of the investigating officer we shall advert to those circumstances later, after we deal with the circumstances - when we consider the conclusions that can be drawn from the proved circumstances. Suffice it to say that it is trite that inadequacies in the conduct of the investigation cannot ipso facto persuade a court to concede the benefit of any non existent doubt to the indictee. Criminal trial cannot get reduced to an endevour without substance of assessing and evaluating the efficiency and competence of the investigating police officer. If the inadequacy/defect in the investigation gives rise any reasonable doubt, the benefit of such doubt, we may reiterate will have to be conceded to the accused without 15 CRA. No. 1018/2007 any reservation. Suffice it to say now that we find no reason to disbelieve the evidence of PW1. 24. The evidence of PW1, supported specifically by the contents of Ext.P1 suggests that when PW1 came to the house, the appellant attempted to deter her away from the house with the plea that nothing untoward had happened in the house. The presence of the appellant in the house when PW1 suffered injuries (which is in direct conflict with the version advanced by the accused in his written statement of defence) is crucial when we consider the complicity of the accused. His attempt to deter PW1 from the scene with the statement that there was nothing untoward eloquently declares and points to his contumaciousness. These circumstances are thus satisfactorily established. 25. Circumstance No. 6:- PW1, rushed to the house of PW4, a neighbour and as advised by PW4, PW1 rushed to the house of PW3, a relative of the deceased to pass on the information to them. They along with PW1 came to the scene. They saw the deceased lying dead with injuries and the appellant available inside the house. PW3 sought the 16 CRA. No. 1018/2007 explanation of the appellant. He did not offer any explanation but only lamented that everything was over. We have been taken through the cross-examination of PWs 3 and 4. Though at later stages, after the appellant was found guilty, the appellant advanced the version that PW3 is the real villain of the piece, it is significant that when PW3 was in the witness stand there was no semblance of a suggestion that PW3 had any contumacious role in the commission of the crime. The evidence of PWs 3 and 4 is thus found to be absolutely trustworthy. Their evidence is in tandem with the evidence of PW1. Their evidence clearly shows the presence of the appellant in the house and his failure to offer any explanation as to how the incident had taken place. He had clearly stated that everything was over and more importantly he was not making any attempt to refer to the culpable or contumacious responsibility of any other for the injuries suffered by the deceased. The 6th circumstance is also satisfactorily established. 26. Circumstance No. 7 :- The prosecution it appears that relied on the evidence available about the presence of 17 CRA. No. 1018/2007 blood marks on MOs 4 and 5 clothes worn by the deceased. We attach no significance to this circumstance. We eschew that circumstance altogether as there are indications to suggest that the accused had also suffered injuries and the presence of these blood marks on his clothes could easily have come from such injuries indisputably suffered by the appellant. This circumstance is therefore not relied on at all by us. 27. Circumstance No. 8:- Going by the defence version the appellant who was not available in the house had returned to the house at 3 p.m. and he found his daughter with injuries. The proved conduct of the appellant after he allegedly found his daughter with injuries in the house is totally inconsistent with his attempted explanation now. The same is incongruent to the evidence adduced by the prosecution. This circumstance exposes the hollowness of the defence attempted to be set up in the statement of defence filed by the appellant. It also confirms and strengthens all the other circumstances relied on by the prosecution. 28. All that remains for us is to decide whether these 18 CRA. No. 1018/2007 circumstances with reasonable certainty point to the guilt of the accused - to the exclusion of every possible theory of innocence of the accused. 29. The learned counsel for the appellant has attempted to marshal various circumstances which according to him reveals inadequacies in investigation. He starts from the inadequate description of the scene of occurrence - as to which side the house of the appellant faces. He points out that in Exts.P7 and P9, the investigating officer does not appear to have adverted to the fact that there is no opening eastwards for the house of the appellant. We have already adverted to this aspect while considering the oral evidence of PW1. Suffice it to say that these inadequacies of the investigator does not generate any reasonable doubt in our mind. 30. The learned counsel relies on the alleged contradiction between the versions of PW1 as to where exactly the knife was when she saw the accused. The court below has adverted to this aspect. PW1 had rushed to this scene initially. According to her, the appellant was holding MO1 19 CRA. No. 1018/2007 knife when he saw him on the first occasion on that afternoon. Later, when she had returned along with PWs 3 and 4 evidently the weapon was not being held by the appellant in his hand. This description as to where the weapon was at two different points of time as perceived by PW1 cannot at all lead us to the conclusion that PW1's version cannot be believed or that the investigating officer is guilty of any indiscretion in the proper conduct of investigation. 31. The incident had taken place at about 3 p.m. on 06.06.2004. According to PW1, she had gone to the police station and had lodged the First Information statement at 6.30 p.m. on 06.06.2004. The evidence of PW12 suggests that he had reached the scene of the crime at about 5.30 p.m. on receipt of some information. The First Information Report was registered only at 6.30 p.m. An argument was laboriously advanced that Ext.P1 cannot be reckoned as the FI statement and Ext.P8 cannot be reckoned as the First Information Report in as much as PW12 has received some earlier information which had brought him to the scene of the crime at 5.30 p.m. PW12 had stated categorically that on receipt of 20 CRA. No. 1018/2007 information he had come to the scene of the occurrence. He does not have a case that any definite information about the incident was conveyed to him by any one. The oral evidence of PWs 1, 3 etc. reveal that word had gone around and it is quite possible that some non specific information may have been received by PW12 and PW12 may have come to the scene of the occurrence. In this context, the cross- examination of PW12 is of utmost importance. He has not been cross-examined with the help of the circumstance that he had already received tangible information about the crime and that such information ought to have been reckoned as the First Information statement. The evidence of PW12 shows that when he reached the scene he was informed that the eye witness (PW1 evidently) has already gone to the police station. He had hence returned to the police station immediately. The evidence of PW1 clearly shows that the statement Ext.P1 was recorded only at the police station. This is perhaps further confirmed by the fact that her statement was recorded and signature was obtained not on a different sheet of paper, but in the First Information Report book form itself. We have no 21 CRA. No. 1018/2007 reason to assume that an earlier FIR might have been registered or that PW12 and the investigating police officials are attempting to suppress any real FIR to black out the real truth. It is trite that the simple fact that the police on receipt of some non specific hasty information had reached the scene of the crime even before the FIR was registered is no reason to doubt or suspect the FIR. More so in a case like the instant one, when the evidence of PW1 inspires absolute confidence. The absence of any attempt to challenge evidence of PW12