IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 CRL.A.No. 1571 of 2005 ---------------------------------- SC.129/2005 of ADDLDISTRICT & .SESSIONS COURT, FAST TRACK (ADHOC) - II, KOTTAYAM .................... APPELLANT(S): ACCUSED: ---------------------- SYAMALA KUMARI, PANTHAKKAL HOUSE, KETTIDAMPARAMBU BHAGOM, CHENNAD KARA, POONJAR, THEKKEKARA. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SRI.SHUBHA ABRAHAM A. RESPONDENT(S): ---------------------- STATE OF KERALA REPRESENED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE CIRCLE INSPECTOR OF POLICE, ERATTUPETTA. BY PUBLIC PROSECUTOR SRI. NOBLE MATHEW. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ Crl.A.No. 1571 of 2005 ------------------------------ Dated this, the 9th day of September, 2009 JUDGMENT Balakrishnan Nair, J. The accused in Sessions Case No.129 of 2005 on the files of Additional District and Sessions Judge, Fast Track Court (Adhoc)-II, Kottayam, is the appellant. The case of the prosecution in brief is as follows: The appellant's husband deserted her. Thereafter, the appellant and the deceased Santhosh, were living as husband and wife, without any formal marriage. She had three children in the first wedlock and the eldest was a daughter. There were frequent quarrels between the appellant and the deceased. One of the reasons for the same was that, he started misbehaving towards her eldest daughter. On the night of 14th May, 2009, there was a quarrel between them, as he made indecent advances towards her daughter. Thereupon, she poured boiling water with rice in it on him and hit on his head using an iron rod ('thammarkambi'). This was done after Crl.A. No.1571 of 2005 - 2 - removing her three children to a neighbouring house. After the attack, before the sunrise she along with her children went to the house of PW.2 who was the member of the local Grama Panchayat. From there, she along with her three children went to her brother's house. According to the prosecution, the appellant had disclosed to PW.2 and her husband, PW.3 what happened to the deceased. They, in turn informed the appellant's neighbour, Soman. He went to the house and found that Santhosh was lying dead. PW.1, the elder brother of the deceased gave the F.I. Statement before the police. On the said information being lodged, the police registered Ext.P13 F.I.R.. After the inquest held by the police, the post mortem examination was conducted by PW.9, Dr.Zachariah Thomas. PW.14, the Circle Inspector of Police conducted the investigation, questioned the witnesses and laid the charge before the learned Magistrate. It was PW.15, the Sub Inspector of Police, who recorded the first information statement and registered the crime. The learned Magistrate committed the case to be tried by Sessions Court, which was made over to the Crl.A. No.1571 of 2005 - 3 - Additional District and Sessions Judge, Fast Track Court (Adhoc) II, Kottayam for trial. The appellant pleaded not guilty to the charges. The prosecution, to prove its case, examined PWs.1 to 15, marked Exts.P1 to P13 and produced the material objects, MOs. 1 to 3. The learned Sessions Judge after hearing both sides, found the appellant guilty of the offence under Section 302 of the Indian Penal Code and sentenced her to undergo imprisonment for life. Feeling aggrieved by the conviction and sentence imposed on her, she has preferred this Criminal Appeal. 2. We heard Sri.Philip T.Varghese, learned counsel for the appellant and Sri.Noble Mathew, learned Public Prosecutor for the State. The learned counsel for the appellant took us through the evidence on record and submitted that there is no iota of legally reliable evidence to support the conviction. In other words, the appellant has been convicted based on no evidence, it is submitted. In answer, the learned Public Prosecutor submitted that the appellant and the deceased Crl.A. No.1571 of 2005 - 4 - were living together as husband and wife. The deceased was found dead in the morning of 15.5.2004. So, it is for the appellant to explain what happened to him. She not only failed to give any explanation, but has given a false explanation. The blood group of the deceased was O+. The MO.2 nighty recovered from the appellant on 15.5.2004 also contained blood belonging to O+ group. So, the above circumstance would show that, it was the appellant, who was responsible for the death of Santhosh, the deceased, it is submitted. 3. We considered the rival submissions made at the Bar and also went through the materials and evidence on record. We find that almost all the witnesses have turned hostile and did not support the prosecution. There is no evidence on record, whatsoever, to connect the appellant with the crime. The presence of O+ blood on the nighty recovered from the appellant cannot be taken as an incriminating circumstance. It is not shown what is the blood group of the appellant. There are crores of people having O+ blood group. Crl.A. No.1571 of 2005 - 5 - The conviction made based on circumstantial evidence can be sustained, if only, all the circumstances unerringly point towards the guilt of the accused and no hypothesis is possible which is consistent with her innocence. In this case, we are not referring to the depositions of the witnesses, as it is a futile exercise. We find that none of the witnesses, has spoken to on material facts to connect the appellant with the crime. All of them have turned hostile. We agree with the appellant that the finding of guilt has been made against her based on no evidence. The findings of the learned Sessions Judge contained in the judgment under appeal are plainly untenable. The learned Sessions Judge in the judgment under appeal has held, since the appellant came for shelter to PWs.2 and 3 on the night between 14th and 15th of May, 2004, the same can be treated as a clinching circumstance against her. We find it very difficult to support that view. Secondly, it was held that, the accused has failed to explain the injury sustained by Santhosh. But, there was nothing on record to show that they were last seen together in the house. Yet another Crl.A. No.1571 of 2005 - 6 - circumstance taken by the learned Sessions Judge as clinching is the presence of O+ blood in the nighty of the appellant. The learned Sessions Judge has gone to the extent of stating that the blood of Santhosh was found on the nighty of the accused. We are of the view that the said finding is unsupportable in law. 4. In the result, the Criminal Appeal is allowed. The conviction and sentence on the appellant in Sessions Case No.129 of 2005 on the files of Additional District and Sessions Judge, Fast Track Court (Adhoc)-II, Kottayam [Crime No.149 of 2004 of Erattupetta Police Station] are set aside. The appellant shall be set at liberty forthwith, unless her detention is required in connection with any other case. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)