IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 CRL.A.No. 908 of 2004() ----------------------- SC.242/2001 of SESSIONS COURT, THRISSUR .................... APPELLANT/COMPLAINANT: ----------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.S.U.NAZAR & SRI.JAI GEORGE. RESPONDENT/ACCUSED: ------------- BABU S/O. DEVASSY, PLACKAL HOUSE, PERUVANKULAM DESOM, ELAKKUNNI VILLAGE, OLLUR, THRISSUR DISTRICT. BY SRI.P.VIJAYA BHANU SRI.PRASUN.S THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14/07/2008, ALONG WITH CRRP NO. 171 OF 2004 THE COURT ON 05/08/2008 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- CRL.APPEAL NO. 908/2004 & CRL.R.P.NO.171/2004 ----------------------------------------- Dated 5th August, 2008. JUDGMENT Balakrishnan Nair, J. Crl.Appeal No.908/2004: This is an appeal filed by the State, feeling aggrieved by the acquittal of the respondent, who was the accused in S.C. No.242/2001 of the Sessions Court, Thrissur. The accused/respondent was charge-sheeted for murdering his wife, giving her sodium cyanide masquerading it as ayurvedic contraceptive powder. But, the trial court disbelieved the case of the prosecution and took the view that it may be a case of suicide. 2. The brief facts of the case are the following: Ms. Sweety was a beautiful young girl aged about 19 years. Her marriage with Mr.Babu, the accused took place on 15.5.2000. The accused was a post-graduate and was an employee of Alukkas Jewellery. At the relevant time, he was working in one of the showrooms of the said Jewellery in the Gulf. The deceased was CRL.A NO.908/04 & CRL.RP.171/04 2 the eldest of the three daughters of PW1, who was working as a Welder in the Cochin Shipyard. PW9, the mother of the deceased was a house wife. The accused was not having any residential house of his own. So, the couple after the marriage on 15.5.2000, stayed in the bridegroom's brother's house at Ollur. In connection with the marriage, there was a reception in the house of the deceased on 17.5.2000. They stayed there for two days. Later, on 19.5.2000, they went to Kozhikode and stayed in the house of PW10 Benny, who was a close friend of the accused, up to 21.5.2000 and returned to the house of the deceased on 22.5.2000. Benny's marriage with Seethal was scheduled to be held on 31.5.2000. To attend the same, they went to Kozhikode again on 30.5.2000. It was a civil marriage and after attending the marriage, they returned to the house of the deceased at Chalakudy at 4 p.m on 1.6.2000. Leaving Sweety in her house, the accused went away, allegedly for taking his sister to Amala Hospital, where his mother underwent an operation for cancer and was convalescing. He returned to Sweety's house by about 10.30 p.m on the said date. Sweety was found lying unconscious in her room, which was locked from inside. The door was opened by using force and she was taken to the Government Hospital, Chalakudy, where she was declared dead by the doctor. PW1, the father of the deceased lodged the information regarding her unnatural death CRL.A NO.908/04 & CRL.RP.171/04 3 at 7 a.m on 2.6.2000. The S.I of Police registered Crime No.242/2000 of Chalakudy Police Station. The inquest was conducted on the very same day. The post-mortem examination was held on 3.6.2000 and thereafter the deceased was buried in the afternoon on the said date. 3. Initially, everyone thought that it was a case of suicide and everyone viewed the accused with suspicion, as the person responsible for her committing suicide. The accused and the relatives of the deceased were questioned by the police. The S.I of Police was in charge of the investigation up to 4.6.2000. Since there was a public outcry regarding the investigation of the crime, PW21, the Dy. Superintendent of Police took over the investigation of the case. Later, during the investigation, information was received by the police that the accused attempted to procure cyanide. Thereafter the accused was arrested on 26.6.2000. He confessed to his guilt and based on his confession statement, the police along with the accused came to the shop of PW7, who was dealing in sodium cyanide also. As per the statement of PW7, the accused procured one kilogram of sodium cyanide from his shop, between 25.5.2000 and 27.5.2000. The post-mortem report showed that the deceased died of cyanide poison. From the statement of PW9, it was found that poison was given to the deceased under the cover of giving ayurvedic contraceptive CRL.A NO.908/04 & CRL.RP.171/04 4 medicine. So, the accused was charge-sheeted for the offence under Section 302 of the I.P.C. It was PW21, who questioned the witnesses, completed the investigation and laid the charge before the Judicial First Class Magistrate, Chalakudy. The learned Magistrate as per the committal proceedings No.37/2001, committed the case for trial by the Sessions Court. 4. The accused pleaded not guilty to the charge of murder framed against him by the learned Sessions Judge. From the side of the prosecution P.Ws. 1 to 21 were examined and Exts.P1 to P32 were marked. Material objects 1 to 11 were produced. During the cross-examination of the witnesses, Exts.D1 to D8 were marked, which were the contradictions in the depositions of P.Ws.3, 9 and 10 with reference to their statements recorded under Section 161 of the Cr.P.C. The accused was questioned under Section 313 of the Cr.P.C. No witness was examined from the side of the defence. The learned Sessions Judge disbelieved the case of the prosecution and found the accused not guilty and acquitted him. Aggrieved by the same, the State has come up in appeal. The father of the deceased (PW1) has also filed Crl.R.P.No.171/2004, challenging the judgment of the learned Sessions Judge. 5. We heard Sri.Jai George, learned Public Prosecutor for the appellant/State. We have also had the benefit of hearing CRL.A NO.908/04 & CRL.RP.171/04 5 Sri.N.K.Unnikrishnan, learned counsel who appeared for the petitioner in the connected revision petition. The learned Public Prosecutor pointed out that the appreciation of the evidence made by the learned Sessions Judge is vitiated by many illegalities. On some points, the conclusions of the trial court are perverse and therefore, this Court may re-appreciate the entire evidence on record and come to its own conclusions. The learned Public Prosecutor also pointed out that going by the circumstances proved in this case, the possibility of suicide has to be ruled out. By medical evidence, it is proved beyond doubt that the deceased died of cyanide poison. It is impossible for the newlywed bride, who was in the company of her husband after the marriage, to procure cyanide poison. The evidence on record would show that the accused had tried to procure cyanide and finally he succeeded in getting it from PW7. The appreciation of evidence on this point made by the learned Sessions Judge was perverse and there was no reason to disbelieve the versions of the witnesses, spoken to on the above point. The accused was unhappy with the deceased for her non-co- operation for carnal intercourse. This is proved by the evidence of PW10 and his evidence has been disbelieved by the learned Sessions Judge without any justification. The deceased was made to take the poison along with the ayurvedic contraceptive powder given by him. This is clear from CRL.A NO.908/04 & CRL.RP.171/04 6 the evidence of PW9, the mother of the deceased. On the fateful day, the accused telephoned his wife thrice to enquire whether she has taken the medicine given by him. Her evidence has also been disbelieved on flimsy grounds, it is submitted. Therefore, all the circumstances necessary to enter the finding of guilt against the accused have been proved by the prosecution. So, the learned Public Prosecutor prayed for reversing the judgment of the learned Sessions Judge and to convict the accused. He relied on the decision of the Apex Court in Pulicherla Nagaraju v. State of A.P. [(2006)11 SCC 444] and brought to our notice the principles governing appeal against acquittal. The learned Public Prosecutor also relied on the decision in Saji v. State of Kerala [2007(3) KLT 151], concerning the adequacy of circumstantial evidence for sustaining a conviction. On the question of proof of motive, the learned Public Prosecutor supported his arguments, relying on the decisions reported in State of Himachal Pradesh v. Jeet Singh [1999 Cri.L.J. 2025], State of Karnataka v. M.N.Ramdas [2003 SCC (Cri.) 134] and Sathyanesan v. State of Kerala [1984 KLT 774]. To support the argument that recovery under Section 27 of the Evidence Act can be not only of material objects, but also mental fact, the learned Public Prosecutor relied on the decision in CRL.A NO.908/04 & CRL.RP.171/04 7 Amitsingh Bhikamsingh Thakur v. State of Maharashtra [(2007)2 SCC 310]. He also pointed out that under Section 313 of the Cr.P.C., the accused has given a statement, which is inherently improbable. The same will act as a link in the case of the prosecution against the accused. The learned counsel Sri. N.K.Unnikrishnan supported the above submissions of the learned Public Prosecutor. 6. Sri. P.Vijaya Bhanu, who appeared for the respondent/accused, fully supported the reasons and conclusions of the learned Sessions Judge. He pointed out that the trial court has rightly disbelieved the versions of Pws.4, 5, 7 and 12, concerning the procurement of cyanide poison by the accused. According to the learned counsel, the accused could have collected cyanide, if he wanted, from the workshop of Alukkas Jewellery. The learned counsel also pointed out that from the room where the deceased was found unconscious, no ayurvedic powder was detected. The accused, according to the prosecution, purchased one kilogram of cyanide. But, the balance cyanide purchased by him is not detected. The computer details of the public telephone were not produced, to show that calls from that booth were made by the accused to the telephone in the house of the deceased. The computer details were withheld,as they would have been adverse to the prosecution. The learned counsel for the respondent finally pointed out that CRL.A NO.908/04 & CRL.RP.171/04 8 going by the principles laid down by the Apex Court regarding appeal against acquittal, this is not a fit case for interference by this Court, in exercise of its appellate power. 7. Going by the judgment under appeal, we feel that the appreciation of evidence made by the learned Sessions Judge on many points was perverse and therefore, this is a fit case where we should re-appreciate the entire evidence on record and draw our own conclusions on them. We will give the reasons for taking such a view later, while dealing with the relevant points. 8. PW1 is the father of the deceased. He has deposed that he is working as a Welder in the Cochin Shipyard. The marriage of his daughter was solemnized on 15.5.2000 in Koodappuzha Church. At that time, Sweety was a second year student of B.Com. The bridegroom was not having any residential house of his own. Therefore, he was residing with his elder brother and also in the house of the bride, after the marriage. As per the information given by his wife PW9, the accused along with the deceased returned from Kozhikode on 1.6.2000 by 4 p.m. He, after the work in the Shipyard, reached the house at 10.30 p.m on the said date. His wife and children were there, when he returned from work. After 15 minutes, the accused came there. His wife PW9 prepared a tea for the accused. Since it CRL.A NO.908/04 & CRL.RP.171/04 9 was raining, the accused closed the door and windows of the sit-out. He gave chocolate sweets to the younger daughters. At that time, Sweety was in her room. Since she did not come out, PW9 went and called her by knocking at the door of the room in which Sweety was sleeping. Since there was no response, the window pane on the southern side of the room was broken and it was found that Sweety was lying on the floor near the cot. He poured some water (on her) through the window. The same had no effect on Sweety. PW9 pushed open the door using a lever. Though Sweety was shaken by her, she did not respond. So, water was sprinkled on her face. It was found that vomitus was lying on the floor. PW1 went out and brought an autorickshaw. The younger daughter Sini tried to massage on the chest of Sweety and give artificial respiration to her. But, the accused restrained her. Sweety was taken in the autorickshaw to the hospital by PW1. The accused also accompanied him. While going to the Government Hospital, Chalakudy, the accused advised to take her to Thrissur. The doctor who examined her in the hospital pronounced that she was dead. When the accused was informed of the same, he did not show any special emotion. The body was kept in the mortuary and PW1 returned along with the accused to his house. While returning, he asked the accused what happened to Sweety. The accused replied that she was unhappy with the CRL.A NO.908/04 & CRL.RP.171/04 10 accused for meeting the hospital expenses of his mother. At that time, the mother of the accused was undergoing treatment in the Amala Hospital. On returning to the house, some liquid was found in a glass, which appeared to be poison. PW1 informed the police regarding the unnatural death of Sweety and Ext.P1 F.I. Statement was given by him. He has deposed on the details of the room in which Sweety was found lying. He identified M.O.1 bottom portion of the churidar worn by the deceased and M.O.2 towel, which was taken by him from the house while Sweety was being taken to the hospital. He was subjected to extensive cross-examination. A suggestion was made that Ext.P1 was subsequently given and it was pre- dated. He denied that suggestion. He was also questioned as to why all the details spoken to by him in court were not given in Ext.P1. It was also suggested that Sweety was suffering from mental illness. The same was also denied by the witness. Other suggestions were also made, which may act as apparent reasons for commission of suicide by the deceased. All those suggestions were denied by PW1. In the cross-examination, nothing was brought out to disbelieve the version of PW1. 9. PW2 Sini is the younger sister of the deceased. At the time of the death of Sweety, she was a student of Sacred Heart Convent School, Chalakudy. On the date of death of Sweety, PW2 reached her house from CRL.A NO.908/04 & CRL.RP.171/04 11 the school by 4.30 p.m. At that time, the elder sister Sweety alone was there. She was told by her elder sister that mother has gone to the market and the accused has gone out. Sweety also told her that for the marriage of Benny (PW10), his bride Seethal was wearing the sari of Sweety. Her husband Babu (accused) and Benny were wearing similar shirts. Sweety appeared to be very happy. After some time, the mother came back and still later, her younger sister Sibi came. Thereafter, Sweety started examining the items received as presents at the time of marriage. One portrait was among them. She took it and kept it in her room, saying that it should be taken while going to the Gulf. The stereo set (kept in the hall) was also taken and placed in the bed room. Normally, it was kept in the hall. Sweety talked to one Sobha (PW3) at 7.15 p.m. She appeared to be very happy during her conversation with Sobha. They talked for about 20-25 minutes. At about 8 p.m., a call was received from the accused. Sweety took the phone. The mother asked Sweety what was the matter and she replied that she was scolded for not taking bath. Thereafter, Sweety went for taking bath. Another call came from the accused after 10 minutes. This time, it was the mother who took the phone. When she told him that Sweety is taking bath, the accused disconnected the phone. Thereafter, Sweety came after bath. She started reading 'Vanitha' and 'Nana' magazines, lying in her CRL.A NO.908/04 & CRL.RP.171/04 12 bed. By about 9 O'clock the accused again telephoned. It was PW2, who took the phone. He wanted to get Sweety. She was asked to call Sweety, who was lying in her bed. Sweety came and took the phone. After the phone call was over, the mother asked her what was the matter. She replied that the accused asked her to take the medicine and sleep and when Babu came back, the mother might be asked to call her. Sweety murmured, why a sleeping person should be roused and again asked to go to sleep. When the accused came, why the mother should call her, when he himself could call her. After telling this, Sweety went to her room. By about 10.30 p.m., the father (PW1) came. After some time, the accused also came and he sat on the settee. The mother was asked to prepare a tea for him. While preparing the tea, she handed over a towel to him to wipe the water on his head, as the accused came wet from outside. After commenting about the cold climate, the accused closed the door and the windows. He also gave sweets to PW2 and her sister Sibi. Asking why Sweety did not get up, the mother knocked at the door of the room, in which, she was sleeping. But, the door was not opened. So, the father and others broke open the glass of a side window. At that time, the accused was standing in the sit-out. When the window- pane was broken, it was found that Sweety was lying on the floor. Though water was poured on her through the window, she did not get up. So, the CRL.A NO.908/04 & CRL.RP.171/04 13 mother, with a lever, opened the door using force. Though Sweety was shaken to rouse her, she did not wake up. The mother called the accused. He came and tried to lift her. But, she fell down from his hands. Thereupon, the father went out and came with an autorickshaw. PW2 tried to massage the chest of Sweety and tried to give artificial respiration. The accused prevented her from doing that. The father and the accused took Sweety to the hospital. Later, they came back and told that Sweety was dead. PW2 did not find any signs of sorrow on the face of the accused. She was subjected to extensive cross-examination by the defence. Her statement was recorded by the investigating officer on 20.8.2000. The witness also told that other policemen have questioned her earlier also. A suggestion was put to her to the effect that the said statement was made as directed by the Action Council (which was formed for proper investigation into the death of Sweety). She denied the same. She used to study sitting in the hall where the phone was kept. She did not hear what Sobha told her mother and elder sister. Sweety told about going to the Gulf on the strength of permanent visa. She also talked about taking books while going to the Gulf. She was smiling while talking to Sobha. That was why she said, Sweety was very happy. The accused was to go abroad within six days. She denied the suggestion made to her to the effect that her elder sister was a mental CRL.A NO.908/04 & CRL.RP.171/04 14 patient. 10. PW3 is Sobha, who was a friend of the deceased. She was also a family friend. She participated in the betrothal as well as the marriage of Sweety. She further deposed that Sweety was very happy with the marriage. On the date of death of Sweety, her mother came to her house with the photo album of the marriage. By 4 O'clock, Sweety telephoned her and asked her mother to come back with the key of the house. Immediately her mother went back. On that day at about 7.15 p.m., Sweety's mother telephoned her and they talked for some time and thereafter the phone was given to Sweety. They talked for some time and Sweety did not express any adverse opinion about her husband. Sweety talked about their trip to Kozhikode. She talked for some time about the album. She asked when the accused would be returning to the Gulf. She was told by Sweety that normally, he had to go abroad on 7.6.2000. But, he was intending to telephone to the employer to get extension up to 15.6.2000. She asked Sweety whether she would cry when her husband went to the Gulf. She replied, why she should cry, as she was also going to the Gulf within three months. She would be going on permanent visa. The books would be taken, so that she could prepare for the examination. The witness invited the couple to her house. But, since the accused had to return the next day, CRL.A NO.908/04 & CRL.RP.171/04 15 she said, she could not come. The witness further stated that the deceased was talking happily. Thereafter, at about 1.15 a.m in the night, a telephonic message came from Sweety's house that she was dead. She participated in the funeral. Though she looked for the accused, he was not seen. In the cross-examination, she has stated that she has spoken about the absence of the accused in the funeral only for the first time before the court. About thousand people participated in the funeral. She did not find any person in police uniform attending the funeral. The funeral was on 3.6.2000. She does not know Benny (PW10). Sweety was having good opinion about her husband and his family members. A few contradictions in her statement before the court with reference to her statement under Section 161 of the Cr.P.C were marked as Ext.D1 series by the defence. 11. PW4 was the witness who spoke about the efforts made by the accused to procure cyanide poison. His brother-in-law was running a shop in the name 'Fashion Gift Centre'. He and his brother-in-law were doing business from that shop. They manufactured gold ornaments and supplied the same to jewelleries, as per the orders placed by them. He knew the accused. He was introduced to the witness by Mr.Benny (PW10). After the first introduction, PW4 met the accused twice and talked to him. He was seen last by the witness in May 2000. One day at noon, the accused came to CRL.A NO.908/04 & CRL.RP.171/04 16 his shop and asked whether he could get some cyanide. The witness replied that there was no cyanide with him and enquired what was the purpose of procuring cyanide. The accused replied that the dog in his house was not well and to kill it, cyanide was required. PW4 said that cyanide would be available with those doing the colouring work of gold ornaments. Thereupon, the accused asked the witness to enquire with such persons doing colouring work. He replied that at present there was no one in the shop and when he would go out for lunch, he would enquire about the same. Thereupon, the accused went away, saying that he would come after some time. After about one hour, the accused came back. Thereupon, PW4 and the accused went in an autorickshaw, to an establishment called Seethal Colouring, near Puthenpally. At that time, Namdev (PW12), the brother of Shivji was there in the shop. PW4 asked him whether he could give some cyanide. He was asked what was the purpose. He told Namdev that it was for a friend of him. Thereupon, PW12 replied that even if it was for him, cyanide would not be given. Thereupon the witness came out from the said shop and told the accused that cyanide could not be procured. When they were returning, they saw one Mr.Davis, who was running