IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 CRL.A.No. 639 of 2005() ----------------------- SC.197/1999 of ADDL.SESSIONS COURT, PARAVUR .................... APPELLANT(S)/ACCUSED: ------------------------------------ RADHAKRISHNAN,S/O.KESAVAN, PUTHOORUPARAMPIL VEEDU,POOYAPPILLY KARA, VADAKEKKARA VILLAGE,ERNAKULAM DIST. BY ADV. SRI.A.X.VARGHESE SRI.A.V.JOJO SRI.SAJEEV.T.P. SRI.A.V.JOJO RESPONDENT(S)/COMPLAINANT & STATE. ------------------------------------------------------------ 1. CIRCLE INSPECTOR OF POLICE, THRIKKAKARA POLICE STATION, THRIKKAKARA,ERNAKULAM DT. 2. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. AADDL. R3 IMPLEADED. 3. THARUNKUMAR. V.R., S/O. V. RAJAPPAN, AGED 37, VEERAMATTUPARAMBIL HOUSE, KEDAMANGALAM, NORTH PARUR. ADDL. R3 IMPLEADED AS PER ORDER DATED 4.3.2009 IN CRL.M.P.4758/2005 ADV. SRI.K.S.MADHUSOODANAN FOR ADDL.R3 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19/02/2009, THE COURT ON 04/03/2009 DELIVERED THE FOLLOWING: A.K. BASHEER & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. Appeal No.639 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of March, 2009. JUDGMENT Bhavadasan, J, Appellant was prosecuted for the offences of uxoricide, Infanticide and also for causing disappearance of evidence. He was found guilty on all counts. Therefore he was convicted for those offences and sentenced to undergo life imprisonment for the offence punishable under Section 302 Indian Penal Code and rigorous imprisonment for one year for the offence punishable under Section 201 Indian Penal Code. Sentences were directed to run concurrently. 2. The accused, his deceased wife and the child were staying together. The accused married deceased Latha about four years ago. At the time of the incident deceased Latha was carrying. Accused suspected that his wife was infidel to him. Prosecution case is that the accused due to his suspicious nature and inferiority complex and since his wife could not satisfy his sexual urge, decided to do away with her. The accused runs business in jewellery. According to the prosecution, the accused had schemed to kill his wife. As part of the scheme he was in search of a house situate in a place far away from the main stream. Crl.A.639/2005. 2 He located the house, in which the couple along with the child were staying at the time of the incident. That is a short distance away from the main road. The allegation is that on 17.5.1997 the accused came to his house in the noon, stabbed his wife Latha to death and smothered his child also to death. The further allegation is that the accused caused disappearance of the evidence by throwing away the jewellery of Latha into a river. 3. C.W.1 laid Ext.P11 first information report before Thrikkakara Police Station. P.W.35, the then Sub Inspector of Thrikkakara Police Station reduced Ext.P11 into writing and thereafter registered Crime No.96 of 1997 as per Ext.P11(a) FIR. He informed the matter to his superior officers. P.W.36 took over investigation. As the case was one of unnatural death, the RDO conducted the inquest. The RDO concerned conducted inquest over the body of Latha and the child Radhul Krishnan and drew up Exts. P1 and P2 inquest reports respectively. Thereafter the body was sent for autopsy. P.W.19 the Forensic Surgeon conducted autopsy over the body of the lady and the child. He issued Ext.P9 autopsy report relating to Latha and Ext.P10 autopsy report relating to Radhul Krishnan. Ext.P9 indicated that Latha died due to the injuries sustained on the neck and as per Ext.P10 it is seen that the child had been smothered to death. P.W.36 recorded statements of witnesses and he produced the articles Crl.A.639/2005. 3 seized during inquest before court. He seized M.O.16 as per Ext.P15 mahazar. As per Ext.P16 mahazar he seized the treatment records relating to the accused from Susrusha Nursing Home, Cochin showing the treatment undergone by the accused and marked as Ext.P4. He also seized the case sheet of Central Hospital, Cochin as per Ext.P6 mahazar. On search of premises, where Diana Jewellery was run by the accused, he was able to seize M.O.17 as per Ext.P17 search list. According to prosecution, M.O.1 knife was recovered as per Ext.P18 mahazar. He filed Ext.P19 report seeking to have Section 302 IPC and Section 201 IPC incorporated in the charge. He had got the plan prepared and obtained other documents and completed the investigation. He laid charge before court. 4. JFCM-I, Aluva took cognizance of the offences. On appearance of the accused before the said court all formalities were completed. The learned Magistrate found that the case is one exclusively triable by a Sessions court and therefore committed the case to Sessions Court, Ernakulam under Section 209 of Criminal Procedure Code. The Sessions Court on getting records, made over the case to Sessions Court North Parur for trial and disposal. 5. On receipt of the records, the Sessions Court, North Parur issued summons to the accused. In the meanwhile, it is worthwhile to Crl.A.639/2005. 4 mention that as per directions given by the court, re-investigation was conducted by P.W.37. The Sessions Court thereafter, after preliminary hearing, framed the charges under Sections 302 and 201 of Indian Penal Code against the accused. The charge was read over to him. He pleaded not guilty and claimed to be tried. Therefore, the prosecution examined P.Ws.1 to 37 and Exts.P1 to P22 marked. They also had M.Os.1 to 20 identified and marked. After the closure of the prosecution evidence, the accused was questioned under Section 313 of Criminal Procedure Code enabling him to offer his explanation to the incriminating circumstances brought out in evidence against him. He denied all circumstances and maintained that he is innocent. He went on to say that on the date of the incident he closed his shop at 9.30 p.m.. According to him, while he was on his way to drop an employee of his, he found that there was a light on the rear portion of the house. He knocked at the door and called out his wife. According to him there was no response. He would say that soon thereafter the two persons who had come along with him also entered the house along with the accused. According to the accused, in the light available, he found his wife lying on the floor in a pool of blood. He switched on the light. He did not see the child near its mother. Later he found his child dead on the bed. Hearing his wails, the neighbours rushed to the place. He was asked Crl.A.639/2005. 5 to inform the police. He did so. He also informed the family of his wife. Police had come on the same night itself. He says that he overheard a conversation that Ganesh, a close friend of his had come to his house on the same day. He also stated that he came to know that Ganesh was leaving by 11'o clock train on the same date. Even though he along with the police officers reached the Railway station, the train had left. According to him, he was illegally detained for a long period and he filed a petition before the High Court. Then he was arrested and remanded to custody. He would say that he is innocent and had been falsely implicated. 6. The court below on hearing both sides found that the accused could not be acquitted under Section 232 of Cr.P.C. Therefore, the court directed the accused to enter on defence. The accused produced no evidence. Exts.D1 and D2 were marked on his side. On hearing both sides, the court below found that the prosecution has succeeded in establishing the case against the accused. He was therefore convicted and sentenced as already mentioned. 7. The question is whether any interference is called for with the finding of the court below. Heard learned counsel for the appellant, learned Public Prosecutor and also Sri.K.S. Madhusoodanan, who appeared on behalf of the petitioner in I.A. 4758 of 2005, which was allowed by this Crl.A.639/2005. 6 court. The following points arise for consideration: I) What is the cause of death of Latha and her child Radhul Krishnan? II) Has the prosecution established that it was the accused, who had inflicted fatal injuries on his wife and smothered his child to death? III) What, if any, are the offences committed by the accused? IV) What is the proper order as to sentence? 8. Point No. I) That Latha and Radhul Krishnan are not alive is the fact not in dispute. They met with the untimely death on 17.5.1997. There is also no dispute regarding the fact that Latha died due to stab injury received by her and the child was smothered to death. There is also no dispute regarding the fact that Latha and her child were living along with the accused. It is to be noticed that at the time of the incident Latha was carrying. The house they were residing was taken on rent by the accused. 9. Exts.P1 and P2 are the inquest reports drawn up by the RDO, who conducted inquest over the body of Latha and Radhul Krishnan respectively. Exts.P9 and P10 are the postmortem certificates of Latha and the child respectively. The inquest reports disclose the injuries found on the body of the respective persons. On a perusal of Ext.P9 the following injuries are seen: Crl.A.639/2005. 7 “(1) Contusion 2.5 x 0.5 cm. on the right side of neck 6 cm. Below right ear. (2) Contusion 2 x 0.5 cm. 1 cm. below injury No.1. (3) Stab wound 2.5 x 0.5 on the right side of neck 1.5 cm. below the right angle of lower jaw. Margins of the wound were regular and clearly cut. Back and lower end blunt and front and upper end sharply cut. The wound was directed upwards backwards and to left ending in the posterior wall of naso. Pharynx for a depth of 8 cms; cutting the underlay muscles and vessles. (4) Stab wound 1.5 x 0.5 cms on the left side of neck 2 cm. below the angle of left side of lower jaw.” The cause of death is shown as due to the injuries mentioned as 3 and 4. Post mortem certificate shows that there were stab wounds and other injuries. Ext.P10, the postmortem certificate relating to the child shows that the findings are consistent with death due to occlusion of air passage by odema. Doctor opined that even though no antemortum injuries were located, it could be concluded that the death was due to smothering. P.W.34 had conducted the postmortem over the body of late Latha and her child. He deposed that the cause of death of Latha was due to injuries 3 and 4 shown in the postmortem certificate. He is also of the opinion that those injuries could have been caused by the use of a weapon of the nature shown Crl.A.639/2005. 8 to him. According to the witness, injury Nos.3 and 4 are fatal and they caused the death of the victim. As already noticed, the evidence is clear to the fact that Radhul Krishnan was smothered to death. It is a clear case of homicide. 10. Point Nos.II & III) The next question that arises for consideration is whether the prosecution has succeeded in establishing that it was the accused who had caused the death of his wife and child. The case is built up on circumstantial evidence. The court below has relied on five circumstances for coming to the conclusion that the acts of the accused had been established. They are 1. enemity of the accused towards deceased Latha. 2. Frequent change of house for staying, which according to the lower court was part of the scheme of the accused. 3. At the time of the incident, the accused was at home. 4. Nobody else could have entered the house and stabbed Latha and smothered the child to death. 5. The accused had concealed M.O.1 knife and thrown away the jewelery of deceased Latha into a river. 11. The court below found that there was an ugly scar on the body of Latha, which causes aversion in the mind of the accused. The Crl.A.639/2005. 9 accused had a complaint that his wife, late Latha, was unable to satisfy his sexual urge. It is also stated by the court below that there is evidence to show that he had compelled Latha to get money from her house. The finding of the court below is that the accused had no liking for his wife and child. He also doubted the paternity of the child. The court below also came to the conclusion that the accused was at home at the relevant time. 12. The question that arises for consideration is whether the court below is justified in coming to the above conclusion. Before entering into a discussion of the evidence in the case, certain aspects may be noticed. 13. The case is built on circumstantial evidence. The courts have been cautioned that while appreciating circumstantial evidence, the court must adopt a very cautious approach and should record the conviction only if all the links in the chain are complete, pointing to the accused and every hypothesis of evidence is capable of being negatived on evidence. Great care must be taken in evaluating the circumstantial evidence and if the evidence relied on is reasonable to enable two inferences, one in favour of the accused must be accepted. The circumstantial evidence relied on must have been fully established and must be consistent only with the hypothesis of guilt. But, that is not to say that the prosecution has to meet any other hypothesis put forward by the prosecution to answer the far fetched and Crl.A.639/2005. 10 fanciful it might be, nor does it mean that the prosecution evidence must be rejected on the slightest doubt because law permits rejection, if the doubt is reasonable and not otherwise. It is not every lingering or fanciful doubt that can be regarded as a reasonable doubt. A doubt must be reasonable and it must be such that a reasonable person would entertain. Doubt of fleeting nature approximating to vague hunches cannot pass muster a reasonable doubt. Usually three tests are applied in such cases. They are, (1) The circumstances from which the inference of guilt is sought to be drawn, must be cogently and fully established. (2) Those circumstances should be of definite tendency unerringly pointing towards the guilt of the accused. (3) The circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else. 14. These aspects had been considered in a number of decisions. It is unnecessary to refer all of them. In the decision reported in Chattar Singh v. State of Haryana (AIR 2009 SC 378), the court held as follows: “It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the Crl.A.639/2005. 11 incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan (AIR 1977 SC 1963); Eradu and Ors. v. State of Hyderabad (AIR 1956 SC 316); Earabhadrappa v. State of Karnataka (AIR 1983 SC 446); State of U.P. v. Sukhbasi and Ors. (AIR 1985 SC 1224); Balwinder Singh v. State of Punjab (AIR 1987 SC 350); Ashok Kumar Chatterjee v. State of M.P. (AIR 1989 SC 1890). The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt. We may also make a reference to a decision of this Court in C.Chenga Reddy and Ors. v. State of A.P. ((1996) 10 SCC 193, wherein it has been observed thus: “In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain Crl.A.639/2005. 12 of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....” In Padala Veera Reddy v. State of A.P. And Ors. (AIR 1990 SC 79)l, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” In State of U.P. v. Ashok Kumar Srivastava, (1992 Crl. L.J 1104), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully Crl.A.639/2005. 13 established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. Sir Alfred Wills in his admirable book “Wills' Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order t justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and in capable of explanation, upon any other reasonable hypothesis that that of his guile, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.” 15. In the decision reported in Ujjagar Singh v. State of Punjab ((2009) 1 SCC (Cri) 272), it was held as follows: “We have considered their arguments very carefully. In Mahmood v. State of U.P., it has been observed that in a case dependent wholly on circumstantial evidence, the court must be satisfied- “(a) that the circumstances from which the inference of guilt is to be drawn, have been fully established by Crl.A.639/2005. 14 unimpeachable evidence beyond a shadow of doubt; (b) that the circumstances are of a determinative tendency unerringly pointing towards the guilt of the accused; and (c) that the circumstances, taken collectively, are incapable of explanation of any reasonable hypothesis save that of the guilt sought to be proved against him.” Int his case this court held that the omission of the prosecution, inter alia, to have the fingerprints found on the alleged murder weapon was fatal to the prosecution story. In sharad Birdhichand Sarda v. State of Maharashtra, this court discussed the ratio of the judgments in Hanumant Govind Nargundkar v. State of M.P., Tufail v. State of U.P., Ram Gopal v. State of Maharashtra and Shivaji Sahabrao Bobade v. State of Maharashtra and observed thus: “153. A close analysis of this decision would show that the following conditions 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. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be proved' and must be or should be proved' as was held by this court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made: “19...... Certainly, it is a primary principle that the Crl.A.639/2005. 15 accused must be and not merely may be guilty before a court can convict and the mental distance between “may be” and “must be” is long and divides vague conjectures from sure conclusions. (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (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.” Mr. Goburdhun has also cited Mahmood v. State of U.P., Shankarlal Gyarasilal Dixit v. State of Maharastra, Sharad Birdhichand Sarda v. State of Maharashtra, Omwati v. Mahendra Singh, Sudama Pandey v. State of Bihar and Ramreddy Rajesh Khanna Reddy v. State of A.P. In support of his plea relating to the evaluation of circumstantial evidence. These judgments have broadly followed the principles laid down in the judgments referred to above and need not therefore be dealt with by us in extenso. It must nonetheless be Crl.A.639/2005. 16 emphasised that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. It is in this background that we must examine the circumstances in the present case.” 15(a) In the decision reported in Vinay D. Nagar v. State of Rajasthan ((2008) 5 SCC 597) it was held as follows: “Further, in Padala Veera Reddy v. State of A.P. It was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: “10(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.” The principle of law is well established that where the Crl.A.639/2005. 17 evidence is of a circumstantial nature, circumstances from which