IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE V.CHITAMBARESH THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 CRL.A.No. 677 of 2007() ----------------------- SC.7/2005 of SESSIONS COURT, THALASSERY .................... APPELLANT(S): ACCUSED ---------------------- PULIYACHERI RAFEEK, S/O. HASSAN, PULIYACHERI HOUSE, KANDAMKUNNU AMSOM, MERUVAMBAI, KOOTHUPARAMBA. BY ADV. SRI.JOHN K.GEORGE SRI.P.K.VARGHESE RESPONDENT(S): COMPLAINANT --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.ROY THOMAS.P.P. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & V.CHITAMBARESH, JJ. ------------------------------- Crl.Appeal No.677 of 2007 ------------------------------- Dated this the 17th day of November, 2011 J U D G M E N T Basant, J. Can the theory of self strangulation by the deceased be accepted ? Is that theory sufficient to generate any reasonable doubt in the mind of this Court? These questions loom large in this appeal. 2. The appellant accused has been found guilty, convicted and sentenced in a prosecution under Section 302 IPC. The crux of the charge/allegation against him is that he on 25.05.2003 at some time prior to 11 a.m. committed the murder of his wife Shafeena aged about 19 years by strangulating her with MO2 shawl of her Churidar. 3. Investigation commenced on the basis of Ext.P1 First Information statement lodged by PW1, a neighbour and land-lord of the residential building occupied by the appellant and his wife. Ext. P1(a) First Information report was registered. Investigation was completed and final report was filed by PW19 before the Magistrate. Complying with all legal procedure the case was Crl.A.No.677 of 2007 2 committed by the learned Magistrate to the court of Sessions. The learned Sessions Judge took cognizance of the offence. Allegation/charge was denied by the accused. Thereupon the prosecution examined PWs 1 to 19 and proved Exts.P1 to P11. MOs 1 to 8 were also marked. 4. An appellate judgment is essentially the continuation of the judgment of the trial court. It must be read as such. We have not in these circumstances satisfied that it is necessary for us to be narrate the oral and documentary evidence adduced before the Sessions Court in detail. Suffice it to say that the oral and documentary evidence adduced by both sides as also all the relevant materials available including section 313 statement have been read over to us in detail by the counsel for the rival contestants. 5. The case rests entirely on circumstantial evidence. The appellant accused and his wife were a young married couple. The deceased was aged only 19 years. They were living together in a house taken on rent by them from PW1 who was residing close to the rented house. PWs 1 and 3 are the land Crl.A.No.677 of 2007 3 lord and his daughter. Pws 5 and 6 are relatives of the accused. PW4 is another neighbor. PW7 is the relative of the deceased and PW8 is a neighbor. PWs2 and 9 are only attesters to documents prepared by the investigating officer. PW10 took MO.7 photographs. PW11 only took the dead body for postmortem examination. PW12 a police official prepared. Exts.P6 and P7 seizure mahazars. PW13 examined the accused and issued Ext.P8 wound certificate. PW14, village officer prepared Ext.P9 plan. According to the prosecution, the accused surrendered before PW15 at 1 p.m. on the date of the commission of the crime, i.e., 25.05.2003. PW16 only proves the legal marriage between the accused and the deceased. PW17 Doctor conducted postmortem examination and issued Ext.P11 certificate. PW18 and 19 are police officials who had various roles to play in the investigation of crime. 6. The accused took up a defence of denial. He admitted that he along with his wife and the infant child were available in the house on the date of occurance. He admitted that he had gone out of his house with his infant child and that Crl.A.No.677 of 2007 4 he had handed over the child to PW5. He has no explanation as to how his wife suffered the fatal injuries. On his side, he examined DWs 1 to 5. DW1 is a Doctor who had examined the deceased two days prior to the occurrence and confirmed that she was pregnant. DW2 is the Homeo Doctor who had also treated the deceased. DWs 3 and 5 are Secretaries of the Mahal and they are examined only to say that all was well and fair in the relationship between the accused and the deceased. DW4 is the mother of the accused. She is examined to say that her daughter-in-law, the deceased, was badly sick on the previous date of the occurrence. Exts. D1 to D3 were also marked on the side of the accused. 7. The learned Sessions Judge on an anxious evaluation of all the relevant inputs came to the conclusion that the prosecution has succeeded in establishing all ingredients of the offence punishable under Section 302 IPC. Accordingly the learned Judge proceeded to pass the impugned verdict of guilty conviction and sentence. The accused was sentenced to undergo imprisonment for life. Crl.A.No.677 of 2007 5 8. We have heard the learned counsel for the appellant and the learned prosecutor. The case rests entirely on circumstantial evidence. The learned counsel for the appellant assails the impugned verdict of guilty, conviction and sentence on the short ground that the circumstances proved by the prosecution are totally insufficient to justify and support the impugned finding of guilt. No other contentions are raised. 9. As stated earlier, the case rests entirely on circumstantial evidence. The principles applicable when the Court considers a case resting on circumstantial evidence are all too well established to require reiteration by this court. To summarise, the law simply is this: All the circumstances relied on by the prosecution must be proved satisfactorily. Each such circumstance must constitute a strong link and all the links together must form a strong chain. Such chain must convincingly point to the guilt of the accused – to the exclusion of every reasonable theory about the innocence of the accused. A Number of precednets can be pressed into service in support of this. We do not think it necessary to advert to any. Crl.A.No.677 of 2007 6 10. What are the circumstances relied on by the prosecution, to drive home the charge of murder against the appellant. We find that the following circumstances are relied upon by the prosecution. 1. The accused, the deceased and their infant child alone were residing and available in the house where the incident took place which was taken on rent from PW1, an immediate neighbour to such house. 2. Neighbours/relatives perceived some strain in the relationship between the spouses. This evidently was not animosity but only strain in the relationship between them. 3. The deceased was last seen along with the accused in their residential house by PW3 on that morning. 4. The accused went away with his child from that house where the deceased was the only other person available. 5. No other person had come to the house after the time that the accused left the house. Crl.A.No.677 of 2007 7 6. He went to PW5, a relative of his and left the child there. He went away thereafter from the house of PW5 without offering any explanation. 7. He allegedly made an extra judicial confession to PW6 over the telephone that he had caused the death of his wife. 8. Queries are made by PW5 over the telephone to PW3 to ascertain the conditions of the deceased -- to verify whether she was still breathing. 9. When PW3, in response to the query from PW6, went to the house of the accused, the deceased was found lying on the bed. 10. When PW5 repeated the request, PW3 proceeded to the house of the accused along with PW1 and they found the deceased dead. 11. Broken bangles were available on the floor of the room. 12. The death according to the prosecution was by homicidal strangulation. Crl.A.No.677 of 2007 8 13. The accused surrendered before the Kannavam police on the same day by about 1 p.m. 14. He had defensive injuries – nail marks on his person when he was examined by the Doctor. 15. No explanation is offered for the death of his wife by the accused – of course in the course of trial, the possibility of suicidal self strangulation is suggested. 16. The accused has not offered any explanation for his conduct of leaving his wife at their house and proceeding to the Kannavam police station to surrender. 11. The Learned counsel for the appellant submits that these 16 circumstances have not been established satisfactorily and the established circumstances if any are not sufficient to persuade a court to draw a safe and satisfactory inference about the guilt of the accused. It is in this context that we reconsider all the 16 circumstances again. 12. On the first circumstance, there is no serious dispute. The accused and deceased and their child were Crl.A.No.677 of 2007 9 residing in that house where the body was found. This house is adjacent to the house of PW1. The house was taken on lease by the accused and his wife from Pw1. This circumstance is admitted and proved beyond controversy. 13. We now come to the second circumstance that neighbours and relatives did perceive some strain in their relationship. Pws.1 and 3, it does not require the wisdom of solemn to recognize, did not deliberately choose to entirely support the case of the prosecution on this aspect. A reading of Ext.P1, admittedly lodged by PW.1 before the police throws a lot of light on this aspect. The evidence of PW.1 and PW.3, though not declared hostile, does not support this circumstance. At any rate, the evidence of PW.7 a relative of the deceased and PW.8, a neighbour convincingly show that there was some strain in the relationship between the husband and the wife. Even the evidence of PW.3 shows that when she visited the accused and the deceased at their house on that morning, the deceased was having some sickness and the accused was behaving in a very grave and serious manner ( ). It has got to be seen Crl.A.No.677 of 2007 10 that the husband and wife were living together with the child under the same roof. She was pregnant also. The case of the prosecution is only that there was a strain in the relationship between the spouses. It is unnecessary to delve deeper into the causes of the strain . The evidence available clinchingly shows that all was not well and fair in the relationship between the husband and the wife. Of course, there is nothing to show that there was such animosity between them which could have operated as an immediate motive for murder. The fact remains that strain in the relationship between the spouses is established satisfactorily and thus the second circumstance is proved. 14. The third circumstance is that the deceased was last seen with the accused at their house by PW.3. The accused and the deceased were residing in the neighbouring house. They had no telephone. The relatives evidently used to contact the accused and the deceased at the telephone in the house of PW.1. On that morning, first of all a call came for the deceased. Information was passed on and the deceased had gone to the Crl.A.No.677 of 2007 11 house of PW.1 to attend the call. After that call was attended and the deceased returned to her house, PW.3 perceived some sickness for the deceased. She went to the house of the accused. She found the accused and the deceased there. There was some prominent strain between them at that time. PW.3 asked the accused, what was wrong with the deceased. The deceased in a grave manner stated, “what can I say about that”. This is the last occasion that the deceased was found living by any other person. At that point of time, under the roof of their residential building, the deceased and the accused were together, of course along with the infant child aged less than 2 years. Definitely therefor, the deceased was found last in the company of the accused at his residential house. This third circumstance is also thus proved. 15. The fourth circumstance relied on by the prosecution is that the accused from that house went away taking the child. The prosecution examined PW.4 to prove this. He turned hostile. Ext.P3 is the contradiction marked. PW.4 stated that though he did not identify the accused and the child, Crl.A.No.677 of 2007 12 he had seen one person walking with the child from the direction of the house of the accused to the river side (away). It is unnecessary to probe further into the acceptability of the evidence of PW.4 and its conclusive nature. We have the statement by the accused that he went along with the child from his house on that morning. The 4th circumstance is thus satisfactorily established. 16. The prosecution has a case that no other person had gone to the house of the accused thereafter. This is the fifth circumstance relied on by the prosecution. Pws. 1 and 3 have not stated that they saw any one going to the house of the accused on that morning after PW.3 saw the accused and the deceased together, though a specific assertion is not made by PW.1 and 3 that no other person had gone to the house. Pws.1 and 3 had also not seen the accused passing away with the child from the house. This circumstance is thus established only in part. Suffice it to say that there is no evidence what so ever (or even the semblance of a suggestion) that any other person had gone or could have gone to the house of the accused on that Crl.A.No.677 of 2007 13 morning after PW.3 saw the accused and the deceased together and after the accused went away from the house taking the child with him. 17. We now come to the 6th circumstance. We have the admitted evidence of PW.5, a relative of the accused, that the accused along with the child went to her house. The accused allegedly handed over the child to PW.5 and went away without saying anything further to PW.5. PW.5 passed on this information to PW.6 – another relative of the accused. Here again, it must be alertly perceived that Pws. 5 and 6 are close relatives of the accused. If they do not reveal the entire truth against the accused, there is nothing abnormal or artificial in that. The evidence reveals convincingly that the deceased had gone to the house of PW.5 and had left the child there. Thereafter, he had gone away from the house of PW.5 without leaving any specific information to PW.5 as to where he was going and as to why he was leaving the child with PW.5 at that juncture on that morning. The 6th circumstance is also thus established convincingly. Crl.A.No.677 of 2007 14 18. As the 7th circumstance, the prosecution wanted to rely on an extra judicial confession allegedly made by the accused to PW.6 over the telephone. PW.6 did not support this version. Ext.P4 contradiction was marked by the prosecution to declare PW. 6 hostile and to discredit her. There is thus absolutely no evidence presently available about the alleged extra judicial confession made over the telephone by the accused to PW.6. This 7th circumstance is not convincingly established. It will be puerile for this Court not to perceive the probability of such an extra judicial confession made by the accused to PW.6. That question shall be considered again when we deal with circumstance No.8 below. 19. As the 8th circumstance, the prosecution relies on the telephone calls which came from the house of PW.6 to the house of PW.1. Altogether there were three calls on that morning. When the first call received, the deceased was informed, the deceased came to the house of PW.1 and she attended the call. Thereafter, the second call came from PW.6. PW.3 was asked to verify whether the deceased was alright. Crl.A.No.677 of 2007 15 She went to the house of the deceased, but the deceased did not respond. According to her, there was a smell of vicks coming out. She thought that the deceased was lying down and taking rest. She did not meet the deceased. She passed on that information to PW.6 over telephone. 20. According to the prosecution, PW.6 who by them had got the information from the accused that his wife has been done away with ( as per the extra judicial confession) called again and wanted PW.3 to verify whether the deceased was still breathing. The evidence of Pws.3 and 6 convincingly establish that such calls were made by PW.6 to PW.3. Of course, PW.6 would now suggest that she made those calls only because she wanted to know the condition of the deceased who was sick earlier. Be that as it may, the 8th circumstance is established satisfactorily that two calls came from PW.6 to the telephone of PW.1 wanting to ascertain the condition of the deceased – to be specific, whether she was continuing to live. 21. As the 9th circumstance, the prosecution relies on the fact that when PW.3 went to the house of the deceased on Crl.A.No.677 of 2007 16 getting the second call, there was no movement what so ever and it appeared to her that the deceased was lying down because of her illness. That circumstance is also eminently established by the prosecution. 22. As the 10th circumstance, the prosecution relies on the fact that when Pws.1 and 3 went to the house of the accused on receiving the third call of the day – with specific request to verify whether the deceased was still breathing, they found the deceased dead. She was lying on the bed in the cot. There was a ligature applied around her neck. This 10th circumstance is also established very satisfactorily by the prosecution. 23. As the 11th circumstance, the prosecution relies on the fact that broken bangles were available on the floor of the room where the deceased was found lying dead. This is proved satisfactorily by the evidence of the investigating officer, PW.18, who prepared Ext.P5 inquest report. Ext.P2 scene mahazar prepared by the investigating officer also confirms this fact. The prosecution alleges that the broken bangles are Crl.A.No.677 of 2007 17 indicative of a struggle on some sort inside the room on that day. The 11th circumstance is also satisfactorily established. 24. As the 12th circumstance, the prosecution relies on the fact that it was a case of homicidal strangulation by application of the ligature. The prosecution heavily relies in this context on the expert evidence of PW.17, the doctor and Ext.P11 post mortem certificate issued by her. The evidence of the expert shows that on the neck of the deceased, there was tell tale indications of application of manual physical pressure. There was also indication of application of pressure around the neck by ligature. M.O.2 shawl of the Churidar was seen tied around the neck of the deceased. That the death was by strangulation – by application of physical force and ligature on/around the neck is thus established convincingly. The 12th circumstance is also thus established. 25. As the 13th circumstance, the prosecution relies on the conduct of the accused surrendering before PW.15, the Assistant Sub Inspector of Police of Kannavam Police Station. According to the prosecution, the accused had realised the Crl.A.No.677 of 2007 18 futility of avoiding responsibility for the crime. He had handed over the child to his relative (PW.5) and he had gone and surrendered before the police. The prosecution primarily relies on the oral evidence of PW.15. We have been taken through the oral evidence of PW.15. There is not a trace of challenge in the cross examination of PW.15 to suggest that PW.15 is not speaking the truth. We are satisfied that this 13th circumstance relied on by the prosecution can also be safely accepted. It is the very definite case of PW.19 that thereafter the accused was sent to the investigating officer who effected the arrest at 8 p.m. on the same night. The 13th circumstance is thus established convincingly. 26. The prosecution relies on the 14th circumstance that there were injuries found on the person of the accused. This is proved by the oral evidence of PW.13 doctor and Ext.P8 wound certificate issued by the doctor. According to the doctor, these injuries could be the result of nail marks. They are in the nature of defensive injuries. The obvious suggestion is that in the course of the incident in which the deceased was murdered Crl.A.No.677 of 2007 19 by strangulation - ligature application, she in defence had caused these injuries on the accused. In section 313 examination, the accused denies having suffered such injuries. The evidence available convincingly establishes that he had such injuries on his person, when he was examined by PW.13. 27. As circumstances 15 and 16, the prosecution relies on want of explanation on the part of the accused. He has no explanation to offer for the death of his wife. Though he did not take up such a specific case in the course of cross examination or when examined under section 313, the attempt now is to suggest that his wife was ill and sick as confirmed by PW.3 on that morning. He thereafter had left the child with PW.5 and had gone away to ensure that medical aid is made available to deceased. It is suggested that the death could have been by suicidal self strangulation by the deceased. Towards the close of the arguments before us, the learned counsel for the appellant argues that the possibility of some other person coming to the house after the accused left the house and such person being responsible for homicidal strangulation of the Crl.A.No.677 of 2007 20 deceased cannot also be ruled out. It remains that other than the theory of suicidal self strangulation by the deceased and the possibility of homicidal strangulation at the hands of some others, no other explanation is offered. It is also not even suggested that the accused was caught by the police on his way to the medical officer/doctor to make such aid available to his ailing wife. It is significant that he had left the house without even informing Pws. 1 and 3 that his sick wife was being left at the house and he was proceeding to secure the services of a doctor for her. Circumstances 15 and 16 are also thus established. 28. The above discussions clinchingly shows that except the circumstance of extra judicial confession, all the other circumstances are proved by the prosecution. The short question is whether these circumstances can lead to a safe inference of guilt of the appellant and whether there is any room for a reasonable doubt - hypothesis of innocence, in favour of the accused. 29. Appreciation of circumstances in a case resting Crl.A.No.677 of 2007 21 on circumstantial evidence has to be undertaken carefully. Each circumstance taken by itself may be capable of many other explanations. The crucial question is whether all the circumstances reckoned as a whole leaves behind the possibility of any reasonable hypothesis of innocence of the accused. It is for this purpose that the cumulative effect of all the circumstances has to be considered. 30. The deceased was found living on that morning by PW.3 in the house where she lived along with the accused. The accused was also present there. The accused goes away with the child after some time. This is not a case where the accused has no burden to explain. Definitely he must explain the circumstances under which he was obliged to leave the house. His conduct