IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 CRL.A.No. 1705 of 2005() ------------------------ SC.1/2005 of SESSIONS COURT, ERNAKULAM CP.18/2004 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... APPELLANT/ACCUSED: -------------- SURESH, S/O. KRISHNAN, CONVICT NO.2088, CENTRAL PRISON, KANNUR. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT: --------------- STATE OF KERALA. PUBLIC PROSECUTOR, SRI.NOBLE MATHEW THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. --------------------------------------- Crl.Appeal No.1705 OF 2005 ---------------------------------------- Dated this the 18th day of September, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant was the accused in Sessions Case No.1/2005 on the files of the Court of Sessions Judge, Ernakulam. 2. The case of the prosecution in brief is as follows: The appellant was the husband of deceased Beena. He is a coconut climber by profession. They were staying together, in a portion of the building owned by PW1, as tenants. A one year old girl born in the wedlock was also with them. The gold given to Smt.Beena by her parents at the time of marriage was taken back by her brother owing to financial difficulties. Though, initially, their marriage life was stated to be happy, dispute arose concerning the return of the gold ornaments. The appellant used to drink regularly and always quarrelled with his wife. One of the grounds for quarrel was non-return of the gold ornaments by Beena's family. 26.11.2003 was the birthday of Crl.A.No.1705/2005 2 their child. So, Beena's family members including her brother attended the function. It appears, they did not give any gold ornaments to the child. That was also a cause of quarrel between them. On 30.11.2003, Smt.Beena went to her house and returned in the evening. By that time, the appellant was there in the house. As usual, there was quarrel on that day and it continued till PW1 and her family members went to sleep. On 1.12.2003, at about 7.30.a.m, as usual, the appellant went out for work. By about 8.30 a.m. Smt.Beena's child started crying incessantly. When PW2 entered the portion of the house, where the appellant and Beena were residing, it was found that Smt.Beena was lying motionless on the floor. PW2 informed of it to her brother, who in turn informed the appellant and his brother-in-law. Immediately, Smt.Beena was taken to the nearby Sangeetha Nursing Home. The doctor, PW4, who examined her, pronounced her dead. The matter was intimated to the local Police Station and a crime was registered by PW8 Sub Inspector of Police for the offence under Section 498 A of the I.P.C. The inquest was conducted by PW5 Tahsildar. The postmortem examination was conducted by PW7, Police Surgeon. He gave Crl.A.No.1705/2005 3 opinion that it was a case of homicide and Smt.Beena died of ligature strangulation and applying force on her neck. Thereupon, report was filed before the Magistrate's Court including the offence under Section 302 of the I.P.C.. PW9, the Assistant Commissioner of Police took over the investigation and the accused was arrested on 3.12.2003. The said officer completed the investigation, which was already started by the Sub Inspector of Police, and laid the charge before the Judicial First Class Magistrate's Court-I, Kochi. Since the offences alleged were exclusively triable by a Court of Session, the case was committed to the Sessions Court, Ernakulam. 3. The appellant pleaded not guilty to the charges framed by the trial court against him under Sections 498 A and 302 of the I.P.C. The prosecution to prove its case examined PWs 1 to 9 and marked Exts.P1 to P12 documents. Material Objects MOs 1 to 13 were also produced before the trial court. The learned Sessions Judge, after hearing both sides, found the appellant guilty of the offences under Sections 302 and 498 A of the I.P.C. After hearing the appellant on sentence, he was sentenced to Crl.A.No.1705/2005 4 undergo imprisonment for life for the offence under Section 302 of the I.P.C. No separate punishment was awarded for the offence under Section 498 A of the I.P.C. 4. We heard Sri.Grashious Kuriakose , learned counsel for the appellant and Sri.Noble Mathew, learned Public Prosecutor for the respondent State. The learned counsel for the appellant took us through the deposition of the witnesses and referred to us the relevant portions of the documents marked in this case. It is evident that on 1.12.2003, the appellant went out of his house by 7.30 a.m. Thereafter, his wife Smt.Beena was found lying unconscious by PW2 and so, she was taken to the hospital. The case of the prosecution that death took place before the appellant left the house at 7.30 a.m. is not proved by reliable evidence. If his wife died at about 5.a.m., as suggested by the prosecution, her body would have been cold and PW2 and her family members could have realised that Smt.Beena was dead and therefore, would not have asked her husband or bother to take her to the hospital. Further, the time of death shown in Ext.P12, the relevant extract of the Register maintained by Crl.A.No.1705/2005 5 Sangeetha hospital, is written subsequently at the instance of the police by the doctor, PW4. The doctor in his cross-examination has admitted that the time of death was not originally entered and it was entered by him only when the police questioned him. The learned counsel pointed out that from the evidence of PW9, it is clear that the questioning of witnesses continued up to 10.12.2003. Therefore, the time of death later added cannot be relied upon. The learned counsel also submitted that Ext.P12 was introduced in evidence after the closure of the prosecution evidence and questioning under Section 313 of the Cr.P.C. was over. So, on finding that there is a serious lacuna in the prosecution, to fill the same, evidence was cooked up and Ext.P12 was manufactured and produced in this case, it is submitted. According to the learned counsel, the possibility of the death taking place after 7.30 a.m., after the appellant left in the morning, cannot be ruled out. The learned counsel also submitted that the failure of the prosecution to take the nail clippings from the body of the deceased and examine the same is a serious lacuna in this case. The nail clippings would have contained the fibres of the cloth worn by the assailant or Crl.A.No.1705/2005 6 portions of his skin. The same would have showed whether it was the appellant who committed the crime. The learned counsel also pointed out that in the postmortem report nothing is mentioned about the urinary bladder. If it was filled with urine, it could have been safely assume that the death took place, before she passed urine, which ordinarily takes place, in the morning. If the bladder was empty, it could be assumed that she died after she woke up in the morning. The position of the urinary bladder would have given some indication regarding the time of death. Since the body was refrigerated, the Doctor who conducted the postmortem examination was not in a position to give the probable time of death. Based on the above facts, the learned counsel for the appellant pleaded for the benefit of doubt to the appellant. 5. The learned Public Prosecutor, on the other hand, submitted that having regard to the nature of the location of the portion of the house, where the appellant was residing, it was impossible for a third person to enter the place of residence and commit the crime and make his escape after 7.30 a.m., when the Crl.A.No.1705/2005 7 appellant left the place and before 8.30 a.m., when the body was detected. Further, in the cross-examination of the prosecution witnesses, the defence did not make any such suggestion. The defence taken was partial hanging as part of suicidal attempt. The prosecution has proved all the circumstances, which it could prove. It cannot be asked to prove the impossible. Going by the medical evidence, the death occurred before the appellant left his house at 7.30 a.m. If that be so, what happened inside his house was exclusively within the knowledge of the appellant. He has failed to explain, what actually happened to his wife, it is submitted. According to the learned Public Prosecutor, in view of the above facts of the case, it can be safely inferred that it was the appellant, who committed the crime. In support of his submission, the learned Public Prosecutor relied on the decision of the Apex Court in Trimukh Maroti Kirkan v. State of Maharashtra [2006(4)KLT 638]. Special reference was made to paragraphs 12, 13 and 14. Crl.A.No.1705/2005 8 6. Before considering the rival submissions made at the Bar, we will refer to the evidence of the material witnesses. PW1 is the land lady of the appellant. She submitted that the appellant and his wife Smt.Beena were living, as tenants, in a portion of her residential building, which was a very inconvenient place. Its ceiling was very low, making it difficult for persons with reasonable height to live there. There were frequent quarrels between the husband and wife. On 1.12.2003 at about 8.30 a.m. she heard the cries of daughter of Smt.Beena from the portion of the house, where they were staying. She sent PW2 to enquire what happened to the child. PW2 went inside the room, where they were staying, and found that Smt. Beena was lying flat on her back in the room motionless. Though PW1's daughter, PW2, tried to wake her up, she did not move or speak. Water was sprinkled on her face. Since the same also did not make any effect, PW1's son went out and brought back the appellant. She has seen the appellant going out for work at 7.30 a.m. The door of the portion, where the appellant stayed, was near to the door of the main building. Therefore, witness and her family members could see if anyone came there. The Crl.A.No.1705/2005 9 appellant and his brother-in-law took Smt.Beena to Sangeetha hospital. The said witness also stated that Smt.Beena used to come to her and tell about the ill-treatment of her husband and the cause of the same. She identified MO1 violet nighty worn by Smt.Beena while she was found lying motionless, MO2 red skirt, MO3 stud and MO4 bangles worn by her . Some torn dresses stated to be damaged by the appellant were taken into custody by the police. One of them was identified by the witness as MO5, which is a torn saree. She also identified a torn nighty as MO6. Though she was subjected to extensive cross-examination by the defence, nothing has been brought out to discredit her version summarised above. 7. PW2 is the daughter of PW1. Since her husband was in the gulf she was staying with her mother and brother. She gave evidence in tune with what her mother PW1 stated. She has specifically stated that she saw the appellant going out for work at 7.30 a.m. She has also stated that they could see if anybody is coming and going from that portion of the house, where the appellant and his wife were staying. She stated that there was frequent quarrel between the appellant and his wife. Crl.A.No.1705/2005 10 She also stated, the reason for the same, as told by Smt.Beena, the deceased, to her. On 1.12.2003, it was she who found the deceased lying motionless and on the basis of the information given by her, Beena was taken to the hospital. She was also subjected to cross-examination by the defence, extensively. But, nothing was elicited to discredit her version. 8. PW3 is the sister of the deceased, who stated about the reason for the quarrel between her sister and the appellant. The gold given to the deceased at the time of marriage was taken by her brother. He could not return the same in time. Because of that, there was frequent quarrel between the husband and wife. PW4 is the doctor of Sangeetha hospital, who examined the deceased at about 9.15 a.m. on 1.12.2003 and pronounced that she was dead. He also stated that death occurred 4 to 5 hours before she was brought there. Through him, Ext.P1, which is the intimation given by him to the police and Ext.P12 the relevant portion of the register maintained in the hospital regarding the admission of patients were marked. In cross- examination, he admitted that initially, the time of death was not Crl.A.No.1705/2005 11 noticed. He entered the same, when he was questioned by the police. He denied the suggestion that he has made the entry regarding the time of death falsely, at the instance of the police, when the document was produced before the Court. PW5 is the Tahsildar, who conducted the inquest and prepared Ext.P2 report. PW6 is the Secretary of an organisation of the community to which the appellant and deceased belonged. He produced Ext.P3, marriage certificate, showing the date of marriage of the appellant and the deceased. PW7 is the Police Surgeon, who conducted the autopsy and issued Ext.P4 postmortem certificate. The cause of death, according to the said witness, was due to strangulation. He denied the suggestion that the injuries found on the dead body could be caused by partial hanging and while attempting to save her. PW8 is the sub Inspector of Police, who registered the Crime and forwarded the First Information Report. PW9 is the Assistant Commissioner of Police, who completed the investigation, including the questioning of witnesses etc., and laid the charge. In cross-examination, he has deposed that Material Objects were produced on 10.12.2003 and reason for the delay was time taken for questioning the doctor and other witness. Crl.A.No.1705/2005 12 9. Going by the evidence of PW7, the Police Surgeon, and Ext.P4 postmortem report, it is clear that Smt.Beena died of strangulation, that is, the death was homicidal. The next point to be considered is, who is the person, who committed the crime. From the evidence on record the following facts are proved: 10. The appellant and Been were husband and wife. They were staying together in a portion of the house owned by PW1. On 1.12.2003 at 7.30 a.m. the appellant went out of his house for work. At about 8.30 a.m. Beena was found lying motionless in their room. The medical evidence in this case proved that, at that time itself she was dead. The evidence of PWs 1 and 2 would show that on the previous night they were together in the room and sounds of quarelling between them were heard by PWs 1 and 2 till they went to bed. In other words, the appellant and the deceased were proved to be together in the house on the night between 30.11.2003 and 1.12.2003. As mentioned earlier, she was found dead one hour after the appellant left the room. Going by the medical evidence in this case, the death took place before 7.30 a.m. If the above facts are taken to be proved, then Crl.A.No.1705/2005 13 no doubt, it was the appellant who committed the crime. But, the defence would point out that the evidence regarding the time of death is not reliable. Though before the trial court the defence of partial handing was urged, the learned counsel for the appellant suggested before us that the death must have occurred between 7.30 a.m. And 8.30 a.m. But, we find it difficult to accept the above version. PWs 1 and 2 have categorically stated that no one else can come to the room, where the appellant and his family stayed, without being noticed by them. Their assertions about the said fact remain unshaken in the cross-examination. If no one is seen to have come to the room between 7.30 a.m. and 8.30 a.m, it can be safely presume that the death, which is homicidal, must have taken place before 7.30 a.m. If that be so, the assailant could have been the appellant only. Therefore, the dispute sought to be raised by the appellant regarding the exact time of death is totally irrelevant on the facts proved in this case. So, we have no hesitation to hold that the deceased breathed her last, at the hands of the appellant only. The facts proved in this case are sufficient to arrive at the above finding. The chain of events proved by the prosecution is complete and all the circumstances Crl.A.No.1705/2005 14 proved unerringly point to the guilt of the accused and no circumstances has been brought to our notice, which is consistent with the innocence of the appellant. In this case, it is apposite to quote the relevant portion of the decisions cited by the learned Public Prosecutor in Trimukh Maroti Kirkan v. State of Maharashtra [2006(4)KLT 638]. The Apex Court in the said decision has held as follows: “12. 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 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 (See Stirland v. Director of Public Prosecution (1994 AC 315)- quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh [2003 (11) SCC 271]. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led Crl.A.No.1705/2005 15 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. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: “(b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on 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 was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed Crl.A.No.1705/2005 16 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. 13. A somewhat similar question was examined by this Court in connection with Ss.167 and 178-A of the Sea Customs Act in Collector of Customs, Madra & Ors. v. D.Bhoormull (Air 1794 SC 859) and it will be apt to reproduce paras 30 to 32 of the reports which are as under: 30. It cannot be disputed that in proceedings for imposing penalties under Clause (8) of S.167 to which S.178-A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and as Prof.Brett felicitously puts it - “all exactness is a fake”. El Dorado of absolute proof being unattainable, the law, accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the Crl.A.No.1705/2005 17 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 prefect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case. 31. The other cardinal principle having an important bearing on the incidence of burden of proof is that sufficiency and weight of the evidence is to be considered - to use the words of Lord Mansfield in Blatch v.Archer (1774 1 Cowp.63 at p.65 “according to the proof which it was in the power of one side to prove, and in the power of the other to have contradicted”. 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. 32. Smuggling is clandestine conveying of goods to avoid legal duties. Secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying S.106, Evidence Act, the burden to establish those facts is cast on the person concerned; and if he falls to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial Crl.A.No.1705/2005 18 presumption of innocence in favour of that person, and in the result prove him guilty. As pointed out by Best in 'Law of Evidence'. (12th Edn.Article 320, page 291), the “presumption of innocence is, no doubt, presumptio juris; but every day's practice shows that it may be successfully encountered by the presumption of guilt arising from the recent (unexplained) possession of stolen properly”, though the latter is only a presumption of fact. Thus the burden on the prosecution or the Department may be considerably lightened even by such presumption of fact arising in their favour. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of proceedings some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice. (Emphasis supplied) The aforesaid principle has been approved and followed in Balram Prasad Agrawal v. State of Bihar & Ors. (AIR 1997 SC 1830) where a married woman had committed suicide on account of ill-treatment meted out to her by her husband and in-laws on account of demand of dowry and being issueless. 14. The question of burden of proof where some facts are within the personal knowledge of the accused was examined in State of West Bengal v. Mir Mohammad Omar & Ors. (2000) 8 SCC 382. In this case Crl.A.No.1705/2005 19 the assailants forcibly dragged the deceased Mahesh from the house where he was taking shelter on account of the fear of