IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 CRL.A.No. 1380 of 2006 C --------------------------------------------- AGAINST THE JUDGMENT IN SC.312/2005 DATED 7.7.2006 OF THE SESSIONS COURT (ADHOC)-II, THODUPUZHA. (CP.4/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, ADIMALI) .................... APPELLANT(S): ACCUSED ------------------------------------- SHAFI, S/O.MOIDEEN,THANIKUNNEL VEEDU, MANNAMKANDAM VILLAGE. BY ADV. SRI.SHAIJAN C.GEORGE SRI.JOHN VIPIN SMT.S.A.SHERLY SMT.SAJITHA GEORGE RESPONDENT(S): COMPLAINANT ------------------------------------------------ STATE OF KERALA, REPRESENTED BY CIRCLE INSPECTOR OF POLICE, ADIMALY THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI S. U. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.1.2011, THE COURT ON 29.3.2011 DELIVERED THE FOLLOWING: K.M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. ----------------------------------------- CRL.APPEAL NO. 1380 OF 2006 C ------------------------------------------ Dated this the 29th March, 2011 JUDGMENT K.M. Joseph, J. Appellant is the accused in SC.No.312/05 on the file of the Additional Sessions Court (Adhoc)II, Thodupuzha. He stands convicted for the offence punishable under Section 302 of the Indian Penal Code. He has been sentenced to imprisonment for life and also to pay a fine of Rs.50,000/= with default sentence. 2. Briefly put, the prosecution case is that at 11 A.M. On 9.11.1996, the appellant with the intention of doing away with his wife Nazeera, beat her on her cheek in his house and when she fell unconscious on the bed, the appellant put potassium cyanide into her mouth, causing her death. Crime No.243/96 of Adimaly Police Station was registered on the basis of the information given by PW1. After investigation was completed, a charge was laid before CRL.APPEAL.1380 OF 2006 C 2 the Judicial First Class Magistrate Court, Adimaly and the case was committed by it to the Court of Session, Thodupuzha. Before the court below, the prosecution examined Pws.1 to 20 and marked Exts.P1 to P18 on the side of the prosecution. Mos. 1 and 2 were also marked. There is no oral testimony adduced on the side of the appellant. He has marked Exts.D1 and D2. 3. The trial court after appreciation of the evidence, reasoned that Nazeera died due to cyanide poison. The trial court has ruled out the possibility of suicide. The learned Sessions Judge also ruled out homicide being committed by any other person, as in their house besides the appellant, apart from the deceased, there was only their 1½ year old child. The court below proceeded to find that the prosecution has succeeded in proving that it was the appellant who caused the death of his wife by administering cyanide. 4. We heard Shri Shaijan C. George, learned counsel for the appellant and Shri S. U. Nazar, the learned Public Prosecutor. CRL.APPEAL.1380 OF 2006 C 3 Learned counsel for the appellant would submit that there is no legal evidence available on record for the court to enter the verdict of guilt against the appellant. He would submit that the case of the prosecution was that potassium cyanide was procured by the appellant and he administered it to his wife. MO2 is allegedly the poison which was recovered on the basis of a statement given by the appellant to the Police Officer under Section 27 of the Evidence Act. It was sent for chemical analysis. Contrary to the case of the prosecution, it turns out that it is sodium cyanide and not potassium cyanide. He would further submit that there is no motive for the appellant to do away with his wife. He would further submit that there is no basis to apply the last scene together theory in the facts of this case. He would further submit that in a case of death by poisoning, the prosecution must establish the following circumstances: (1) There must be a clear motive for the accused to administer poison to the deceased. CRL.APPEAL.1380 OF 2006 C 4 (2) The deceased died of the poison said to have been administered. (3) The accused had the poison in his possession. (4) Accused had the opportunity to administer the poison to the deceased. (See Sharad Birdhichand Sarda v. State of Maharashtra - AIR 1984 sc 1622) Of the above circumstances, he would submit that while it may be open to the court to conclude that the appellant had the opportunity to administer poison, the other circumstances are not proved by the prosecution. As regards the procurement of potassium cyanide, the prosecution, though it attempted to prove the case of the appellant having procured the poison through PW8, it is pointed out that the said witness has not toed the prosecution line. The other circumstance which was pressed by the prosecution was extra- judicial confession made to PW7 by the accused. It is submitted that in this regard, apart from the fact that PW7 was declared CRL.APPEAL.1380 OF 2006 C 5 hostile, inherently the case of extra judicial confession made by the accused to PW7 is incredible. He would submit that the prosecution case based on recovery under Section 27 is highly vulnerable. The attesting witness to the recovery mahazar, though has admitted his signature, he has not deposed in favour of the prosecution otherwise. Besides, it is submitted that the recovery is allegedly effected from a shelf from the open verandah of the house of the accused. The recovery was on 11.11.1996. He would point out that the Police Officer was expected to conduct a thorough search of the premises and prepare a scene mahazar. A scene mahazar, in fact, was prepared a day before the alleged recovery. He poses the question as to how if the Officer had conducted such a search, he could have possibly overlooked the alleged package containing sodium cyanide. In this context, he would point out that the Officer in fact did suspect death by poisoning as he has seized the shaddy of the deceased. He would submit that whether it is potassium cyanide as was the prosecution CRL.APPEAL.1380 OF 2006 C 6 case, or it was poisoning by sodium cyanide as is sought to be proved through MO2 and the Report of the Chemical Examiner, there is a dichotomy. He would submit that whether it is potassium cyanide or sodium cyanide, when a persons consumes it, it will mix with hydrochloric acid present in the stomach and form hydrocyanic acid. He would submit, however, that if only proper investigation had been done and tests undertaken, the exact salt could have been identified and the matter could have been established as to whether it was a case indeed of death by poisoning by using potassium cyanide or sodium cyanide. He would also fault the prosecution for the fact that at the Medical College Hospital, Histo Pathological tests were not undertaken. He would further submit that after the matter was remanded by this Court, the evidence on record would show that the deceased was pregnant. He would submit that evidence on record would show that the prosecution was aware of this fact and it was suppressed. He would suggest that it is possible that the deceased may have CRL.APPEAL.1380 OF 2006 C 7 committed suicide, if there may have been affair and a woman who is having an affair would know whether she has become pregnant and this could provide a sufficient reason for a woman to put an end to her life, to escape from the future ignominy. He would also submit that the evidence of the sister of the deceased who had allegedly come to stay with the deceased, a week prior to the date of occurrence and who stayed on till a few days prior to the fateful day, was to the effect that the deceased was in a melancholy mood. He would submit that if indeed it was a case of death by cyanide poisoning, there would be the smell of bitter almond. He would point out that the postmortem report would reveal that there was no such unusual smell noted. 5. Learned counsel for the appellant relied on the Judgment of the Apex Court in Hanumant Govind Nargundkar and another v. State of Madhya Pradesh (AIR 1952 SC 343), wherein the Apex Court pointed out the danger that conjecture or suspicion may take the place of legal proof. In a case of circumstantial evidence, it CRL.APPEAL.1380 OF 2006 C 8 was held that they must be fully established and all the facts so established must be consistent only with the hypothesis of guilt of the accused. There must be a chain of evidence so complete as to leave no reasonable ground for conclusion, consistent with innocence of the accused and it must be such as to show that with all human possibility, the act must have been done by the accused and the circumstances should be such as to exclude every hypothesis, but the one proposed to be proved. In Palvinder Kaur v. The State of Punjab (AIR 1952 SC 354), again the Court warned against suspicion however strong they may be, taking the place of proof by evidence. He would also submit that it is the law that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakenessof the defence, and that only when various links in a chain are complete, a false plea or false defence may be used to assure the Court. The infirmity or lacuna in the prosecution case cannot be cured by a false defence or a plea which is not accepted by the Court (See Sharad Birdhichand Sarda CRL.APPEAL.1380 OF 2006 C 9 v. State of Maharashtra - AIR 1984 SC 1622). Learned counsel for the appellant would submit that the decision of the Apex Court in Trimukh Maroti Kirkan v. State of Maharashtra (2006 (4) KLT 638 (SC)) cannot assist the prosecution. 6. Shri S. U. Nazar, learned Public Prosecutor would not seriously dispute that there were some laches in the investigation. But, he would submit that the prosecution had succeeded otherwise in proving the case and he supported the Judgment. He also relied on the Judgment of the Apex Court in Trimukh Maroti Kirkan v. State of Maharashtra (2006 (4) KLT 638 SC). Therein, the Apex Court proceeded to hold as follows: "If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge CRL.APPEAL.1380 OF 2006 C 10 does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here, it is necessary to keep in mind S. 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of S. 106 of the Evidence Act, there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime CRL.APPEAL.1380 OF 2006 C 11 was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation...............The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent mana's estimate as to the probabilities of the case. Since it is exceedingly difficult, if not absolutely impossible for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden........In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an CRL.APPEAL.1380 OF 2006 C 12 explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete." He also relied on the decision of a Division Bench of this Court in State of Kerala v. Babu (2008 (3) ILR 527). We notice that the said Judgment has been set aside by the Apex Court by its Judgment in Babu v. State of Kerala ((2010) 9 SCC 189). 7. The incident took place on 9.11.1996. The appellant, his wife Nazeera and their child were residing in a small house at a place in Mannamkandam Village. According to the appellant, the deceased was found lying in the bed by the side of the child and when he called, she did not respond. The appellant in his statement under Section 313 Cr.P.C. Would further state that he alerted his neighbour and the deceased was taken by road, firstly in the jeep driven by PW11 who made them over to PW13, the driver of another jeep who, in turn, rushed them to the hospital at Kothamangalam. PW1 gave the first information and proved Ext.P1 FI Statement. He is the nephew of the appellant. He would CRL.APPEAL.1380 OF 2006 C 13 say as follows: He went to the Police Station at Adimali and gave information. When he was sitting in his house, towards Noon, his friend Shamsudeen came in a commander jeep. There were others also. He was told that the wifeof the accused has been takento the hospitaland she died. In the same jeep, he went to the hospital. He was told that information must be given to the police and then only the body will be released and he went and gave information to the police. He denies having seen the elder brother of the accused Sathar going to call for jeep. He says that when he later on went to his house, he was told by his mother that the deceased was not keeping well and Sathar had gone to call for the jeep. He states that it is after 1-1/2 hours after that, that Shamsuddeen came to him. He says that Shamsuddeen came to know of the death on the basis of phone call which came at the town. He says that his mother has not gone to the hospital. In Cross Examination, he would say as follows: CRL.APPEAL.1380 OF 2006 C 14 He says that he does not remember as to whether he told the police who all took Nazeera in the jeep. He does not remember whether he stated to the police that Jameela, Aabida and Mundakkal Kunjumon and others took to hospital. He did not see them taking to hospital. He did not see them taking to hospital. He does not have direct knowledge of who took and how to the hospital. He does not know who went to call for jeep. He says that he has not stated to the police about him seeing Sathar going to call for the jeep. The accused and the deceased were on good terms. He does not know of any problems. He does not know of any difference of opinion between them. He does not know how Nazeera died. There were many people when he went to the hospital. The accused was there. Neighbours were there. Nazeera knew tailoring. The accused had sold the property in which he was residing in and purchased another. The house where the deceased was residing in was purchased by the accused. He does not know whether the accused is doing any other business. CRL.APPEAL.1380 OF 2006 C 15 8. In Re Examination, he would say that he came to know later that the deceased had died of poisoning. When a statement in Ext.P1 starting with the words "today in the morning at 11/30" he says that since it is ten years, he is not able to remember whether he made such a statement. He says that he is not able to remember whether he had said that, in the jeep, mother and others went to the hospital. He also does not remember whether he stated that Nazeera used to go for tailoring. 9. PW2 is a witness to Ext.P2 Inquest Report. He states in answer to a question by court that there was froth coming from the mouth of the deceased. He states that there was no injury on her body. In cross-examination he would say that at the time of the inquest, the accused was present. PW3 is a neighbour of the accused. He was present at the time of inquest and signed the same. He states that the accused first went to the residence of PW5 and told him that the deceased was lying unconscious. PW5 called him. They went to the residence of the accused. There, the CRL.APPEAL.1380 OF 2006 C 16 accused and his 1½ year old child was present. The deceased was lying unconscious. When the accused was asked what had happened, he said that the deceased was lying unconscious. Thereupon, PW5 and PW3 called for a jeep and took her to the hospital. When they reached the hospital, the Doctor examined her and pronounced her death. He would state that it was about 10/10 when the accused called PW5. They reached the hospital at 1 PM. He would state that he was not aware that Nazeera was afflicted with any illness. In cross-examination he would state, inter alia, as follows: The police have not questioned. It is after PW5 called, he went to the house of the accused. The accused called out loud to PW5. The child of the accused was in his hands. There was nobody else. Jameela and Abida joined them on the way to the hospital. The accused and his wife were in good terms. They had no difference of opinion. He is not able to say whether it was a natural or unnatural death. He used to go to the house of the CRL.APPEAL.1380 OF 2006 C 17 accused and the accused and deceased used to visit them. The deceased knew tailoring and the accused used to do it jointly. By the time he went, Nazeera was not speaking anything. There was only some mumbling. He did not see anything in particular in her. There was only one door to the house. Accused was not present with them when the deceased was taken to the hospital. He went somewhere and he was not seen. The accused came after half an hour after reaching the hospital. At the hospital, there were eight or nine persons including the witness. In answer to a question as to whether the accused had gone to call for the jeep, he is unable to say. In answer to the court question, he says as follows: At the time when the person went to call for the jeep, the accused was not present. When the accused called, he entrusted Nazeera with them and left. He does not know whether it was to call the jeep. The jeep of one Udayan came after twenty minutes. He is not able to say whether the accused was there in the jeep, when they went to the hospital. The deceased did not become CRL.APPEAL.1380 OF 2006 C 18 unconscious before the incident. It was on a Monday. It was not a holiday, which is his memory. When the accused was asked what happened to Nazeera, he would say he did not know. The accused was not found tensed and did not appear sorrowful on her becoming unconscious. There is no particular emotion. The accused did not say that she must be taken to the hospital or that she should be taken to a particular hospital. He took the child also to the hospital. Rehim (CW9) is the friend of the accused. In re- examination, he would say that Nazeera used to go to the tailoring occasionally. In further cross with permission, it is stated by him as follows: When they went there, the accused was present. It was for taking Nazeera to the hospital and for other things that they were called. He did not observe any particular emotion by the accused. He does not know who met the expenses in the hospital. He would say that it was the accused who gave information to the Doctor. The father and uncle of the deceased were all there at the time of CRL.APPEAL.1380 OF 2006 C 19 post-mortem. The accused had been staying only for one year. The accused used to go for work regularly. He is not able to say whether the accused was doing real estate. He is not able to say who are his friends and enimies. He would say that he came to court along with the father of the deceased. He says that he is not on intimate terms with CW9 and that he is not contacted CW9. It is only his hearsay that the accused and CW9 were friends. Again, there was examination at the instance of the court and therein, it is stated by him that it is only after twenty minutes after he reached the hospital that the accused came there. He says that when Nazeera was taken to the hospital, the accused was not present. 10. PW4 is the father of the deceased. He would state, inter alia, as follows: Nazeera died on 9.11.1996 which was a Saturday. He would say that it was about 2 PM when he saw Nazeera in the hospital. He doubted that she died of poisoning. At the inquest, his evidence was recorded. He expressed his doubt. There was froth CRL.APPEAL.1380 OF 2006 C 20 from Nazeera's mouth. He used to go enquiring about his daughter every fifteen days. Nazeera did not have any illness. The accused did many businesses, but lost all the money. He was staying in a rented house. He demanded Rs.5,000/= which he gave. A house was purchased. It is after one year that his daughter died. The appellant was having financial difficulties when Nazeera died. There was oedema on the cheek of his daughter when he saw her. In cross-examination, he, inter alia, stated as follows: The appellant is remarried. The child was then and now with the appellant. He pointed out the swelling to the Tahsildar. He has nothing to say if it was not noted. The financial difficulties of the appellant are known to him only through hearsay. He does not remember the date on which he gave Rs.5,000/=. There is no document. It was returned after six months. He does not remember the exact date of the marriage of his daughter. There is a criminal case for his having taken the goods