Jose @ Pappachan vs Sub Inspector Of Police, Koyilandy & Anr

2. At the trial, he along with his brother Benny Joseph, were indicted under Sections 498A/Section 302 IPC read with Section 34 IPC for having murdered his wife Neena. The Trial Court however acquitted both of them of the charge under Section 498A IPC. The co-accused was also acquitted of the other charge. To reiterate, the conviction of the appellant under Section 302 IPC having been sustained by the High Court, he seeks panacean intervention in the instant appeal.

4. To appropriately outline the factual premise, apt it would be at the threshold to present the fascicule of the rival projections.

5. The appellant was a police constable at the time of marriage with the deceased on 19.6.1986 as per their customary rites whereafter they set up their matrimonial home to start with at their family house and thereafter at the places of his postings in service. Allegedly, he developed an extra-marital relationship with one lady named Darly for which he used to ill-treat and harass his wife both physically and mentally whenever she used to express her reservations and objections to such alliance. According to the prosecution, under the influence of the said lady, the appellant even resigned from his job and proceeded for Jeddah in the year 1997 where he and the said Darly lived as husband and wife. It is alleged that in order to legalise the relationship, the appellant plotted to eliminate the deceased and with that end in view, returned to India on 22.8.2000. He thereafter accompanied Neena, the deceased, for a spiritual retreat to “Potta Divine Retreat Centre” but abruptly cut short their stay thereat and returned home on 19.9.2000. The accusation is that after their return on that date, sometime in between 6.30 to 8.30 p.m., the appellant smothered the deceased inside the room of his house, strangulated her by using a plastic rope and then hanged her from a hook of the roof of the work area of the house by using a saree and thus brutally murdered her. The prosecution has imputed that in this heinous act, the co-accused his brother, who since has been acquitted, had assisted him.

6. The information of this incident was lodged by Mr. Cheriyan @ Papputy with the Koonachundu Police Station whereafter the the appellant and the co-accused, his brother were arrested on 21.9.2000 and 15.11.2000 respectively. On the closure of the investigation, charge-sheet was laid against both the accused persons under Sections 498A/ 302 read with Section 34 IPC and eventually, the case was committed for trial to the Sessions Court, Kozhikod.

7. The accused persons denied the charge and claimed to be tried, whereafter the prosecution examined 25 witnesses including the doctor, who performed the post-mortem examination on the dead body as well as the investigating officer. Several documents were also proved and exhibited. The accused persons were examined under Section 313 Cr.P.C. They stood by their denial and refuted the correctness of the incriminating circumstances with which they were confronted. They also examined three witnesses in defence.

8. The Trial Court, to reiterate, on a scrutiny of the evidence of the record and after analysing the rival contentions, acquitted both of them of the charge under Section 498A but held the appellant guilty of the offence of murder of his wife Neena and convicted him under Section 302 IPC and sentenced him as above. The co-accused was exonerated of the charge under Section 302 IPC as well. The appellant failed to secure his acquittal before the High Court, which by the verdict impugned, has sustained the determination of the Trial Court.

11. According to him, they alighted from the bus from Potta at their destination at about 7.30 pm. when they saw their elder son going for purchase of house hold articles. He then sent the deceased home with his son and he went in search for labourers to work on his property on the next day. He mentioned that in the process, he met Mullakkara Kunhumon, Sainaba, Jameela and Palliparambil Thankan and finalised with them for such work. According to him, he thereafter with Thankan went to the house of Edattankuzhi Jose and Cheriyan @ Papputty but found that Jose was away for a meeting. He thereafter proceeded towards his house and on the way was pushed down by two persons hurriedly coming from the opposite direction. On his hue and cry, persons from the locality rushed to the place and searched for these two persons, but in vain. As in the process, the co-accused, his brother suffered chest pain, the appellant requested Joy (PW7) and Cheriyan @ Papputty (PW1) to bring the necessary medical documents from his wife.

12. These two persons after reaching the house of the appellant, raised alarm and on hearing the cry, he (appellant) along with Anikkal Babu and Thankan, who were present there, rushed to his (appellant) house whereupon they saw Neena in a hanging posture from a hook in the roof of the work area of the house and that Joy and Cheriyan @ Papputty were holding her legs to lift the body upwards. The appellant thereafter took a knife (koduval) from his kitchen and brought down the body by snapping the saree by which the body was hanging. They then rushed Neena to the Medical College Hospital where she was declared to be dead. The appellant while insisting that he was innocent, laid the blame on the relations of the deceased to have foisted a false case against him.

13. As referred to hereinabove, the First Information Report was lodged by Cheriyan @ Papputty at 9.30 a.m. on the next day i.e. 20.9.2000, his version being that about 10 P.M. on 19.9.2000, while Benny (co-accused and brother of the appellant) was sitting in the tea shop of Pulluparambil Mathew (PW6), he suffered an epileptic attack for which he along with Mathew, on being requested by the appellant, went to his house to secure the medical papers from Neena. It was mentioned that when they reached the house, they found the door open with a lantern lit inside. As on their calls, the deceased Neena did not respond, they entered the house and found her in a hanging position from the hook on the ceiling at the work area at the rear side of the house and that she was struggling for life. They having raised alarm by that sight, the appellant and his neighbourers including Kunjumon, Regi and Thankan arrived at the spot, whereafter the appellant cut the saree by which Neena was hanging and took her in a jeep to a Medical College Hospital where she was declared dead.

14. In course of the investigation, the police conducted the inquest of the dead body and in the process also recorded the statement of PW6 Mathew who was present. His statement, as recorded on the date of the inquest i.e. 20.9.2000, is to the effect that on 19.9.2000 at about 9 p.m., while he was preparing to sleep, the appellant loudly called him as well as his brother Benny to come hurriedly. When the witness reached the place from where the appellant had shouted, he found the appellant asking somebody to stop and also abusing someone. When enquired, the appellant, stated to have seen two persons who had pushed him down and had ran away. They thereafter engaged themselves in search of the persons refereed to by the appellant but in vain. According to the witness, the appellant’s brother Benny started feeling sick for which Kunjumon, who was present, was asked by the appellant to call a jeep to take him to the hospital. The appellant simultaneously asked the witness to go to his house and fetch the medical prescription from his wife Neena. The witness along with PW1 Cheriyan @ Papputty then went to the house of the appellant and when Neena did not respond to their calls, they open the door which was not bolted and on reaching the kitchen area, they found the deceased in a hanging position from a hook atop the kitchen veranda by a saree, but was gasping for breath. On seeing this, both of them loudly raised alarm and raised Neena upwards by holding her legs. The witness further stated that by that time, the appellant and others came running by hearing their cries and the appellant brought a knife from the kitchen, cut the saree, brought down the body and then they took Neena thereafter in a jeep to Thalayada Hospital where the nurse there recommended that she be taken to the Medical College Hospital, They did so, but the doctor there declared her to be dead.

15. The version in the FIR and the version of the informant,PW1 Cheriyan @ Papputty and PW6 Mathew, made at the earliest point of time after the incident, to start with, appear to be substantially consistent.

17. The witness stated that on getting the news, he along with those present, including the appellant, ran to his house and on the way, the appellant stopped a car that was passing and sent in it, the co-accused Benny, his brother. The appellant thereafter sent Joy to bring a jeep. When they reached the work area of the back of the house of the appellant, they found Neena hanging from the hook attached to the ceiling by a saree. The appellant brought a knife from the kitchen, cut the saree and brought the body down with the help of others. The witness stated that in the meantime, Joy had come with the Jeep. They all carried Neena firstly to a private hospital where a nurse, on being told that it was a case of suicide, advised that the patient be taken to the Medical College Hospital. When they reached the hospital, the doctor on examining the Neena declared her to be brought dead.

19. In the cross-examination, this witness disclosed that about 3/1/2 years before the incident, the appellant had resigned from his service in the police department and had gone to the Gulf leaving behind Neena and children in the house built by him. He also mentioned about the ancestral house of the father of the appellant about 200 meters away from his house. The witness admitted as well that the co-accused Benny, brother of the appellant, had been then suffering from epilepsy and on the date of the incident as well, he had a bout of attack thereof.

21. PW6 Mathew deposed on oath that at the relevant time, he was running a tea shop in the locality which was very near the house where the appellant and the deceased used to reside. According to this witness, on the date of the incident at about 7 p.m., he had closed his shop to attend a meeting from where he returned at about 8.30 p.m. He found present at the shop, Jose, (nephew of the appellant) along with others. After some time they dispersed therefrom.

22. According to the witness, later in the evening, when he had gone to sleep, the appellant came to his house at about 9 p.m. and called him. He also called his brother Benny and seemed to shout abuses at someone. The witness along with Jose ran towards the appellant and by that time, they reached the place, they found others gathered as well. The appellant disclosed to him that while he was returning to his house, he was pushed down by two persons on the way. The group assembled there, then tried to search for these persons but could not trace them. At that time, Benny, the brother of the appellant developed chest pain and he was taken to the shop of the witness. The appellant then requested the witness to go to his ancestral house to fetch tablets for Benny whereupon he along with Jackson did so. While passing by the front of the house of appellant, they noticed that the lantern inside was lit but the door was open. They did not see any movement in the house. The witness stated that when he returned with the tablets, the appellant enquired about the admit card and prescription for extending treatment to Benny. On the request of the appellant thereafter, the witness along with Joy PW7 went to the house of the appellant and when they reached there, they called out for Neena, but she did not respond. On this, they entered the house and found Neena hanging from hook in the roof of the work area at the rear end of the house. He and Joy thereafter ran back to the shop to inform about the incident, whereupon the appellant and PW1 accompanied them back to the house. The appellant asked Joy PW7 to bring a jeep to take Neena to the hospital. They then retrieved the body and took Neena to the hospital where she was declared dead. The witness mentioned that he had given the earlier statement as per the instructions of the appellant and that when he was interrogated by the Investigating Officer for the second time, he stated the correct facts.

24. PW7 Joy was a taxi driver at the relevant time and had a jeep. This witness stated as well that at about 10 p.m. in the fateful night, while he was sleeping in his house, two persons namely; Kunjumon and Palliparambil called him and on being asked, requested him to come with his jeep as Benny, brother of the appellant was unwell. On this, the witness reached the shop by PW6 Mathew with his jeep and found Benny sitting on the bench with the support on the desk. He met the appellant who told him that Jackson and Mathew had gone to fetch tablets for Benny and on their return, he (Benny) would be taken for medical treatment. The witness further stated that when Jackson and Mathew returned with the medicines, the appellant enquired of them about the admit card and prescription which they stated had not been brought. On this, the appellant requested them to get those papers from his house, whereupon the witness and PW6 proceeded towards the house of the appellant. This witness stated that on reaching the house of the appellant, they saw the front door thereof to be half open but the kerosene lantern inside was alight. As Neena did not respond to their calls, the witness and PW6 entered the house and eventually found Neena hanging from the roof of the service area with a saree. The witness stated that they ran back, by seeing this to the shop of Mathew where they informed the appellant about the incident. On hearing this, the witness, PW1 and PW6 rushed to the house of the appellant. On the way, the appellant stopped a car and sent Benny together with Jackson and others to the Medical College Hospital. The witness stated that at that point of time, the appellant asked him to bring the jeep to his house whereafter PW1, the appellant and others took Neena in his jeep to the hospital where she was declared dead. This witness admitted that the Investigating Officer had recorded his statement twice. He conceded that in the earlier statement, he disclosed that it was PW1 who had first seen Neena in a hanging position. He added that such a statement was made on the instruction of the appellant.

33. This witness endorsed the fact as well that he met his parents on 19.9.2000 at about 7.30 p.m. when they alighted from the bus from Potta and were proceeding towards their house. He stated that at that point of time, he was also returning home with some household articles and thus he accompanied his mother back home while his father, the appellant went in search of labourers for the next day work in his compound. The witness stated that on their return, his mother prepared snacks, whereafter she told her to carry some articles to the ancestral house and accordingly he did so. The witness however added that though he waited for his parents to come to the ancestral house, they did not do so and he came to learn about the death of his mother in the next morning.

54. The facts as obtained in the present case present a jigsaw puzzle in which several frames are missing to permit an unreserved opinion of the complicity of the appellant.

56. The above quote thus seemingly concede a preference to wrongful acquittal compared to the risk of wrongful conviction. Such is the abiding jurisprudential concern to eschew even the remotest possibility of unmerited conviction.

“153.(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused...they should not be explainable on any other hypothesis except that the accused is guilty.

* * * (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.”

62. Judged on the above parameters, we are of the unhesitant opinion that the evidence adduced by the prosecution constituting circumstantial evidence in support of the charge does not furnish an unassailable basis to hold the appellant guilty of the charge of murder levelled against him. The facts and circumstances admit of a reasonable doubt in his favour.

63. The circumstances brought forth by the prosecution do not rule out in absolute terms the hypothesis of the innocence of the appellant. We thus consider it to be wholly unsafe to maintain his conviction as recorded by the courts below. We are therefore inclined to extend benefit of doubt to him. The conclusions drawn by the courts below are not tenable on the basis of the evidence available. The appeal is thus allowed and the conviction and sentence recorded by the courts below is hereby set aside. The appellant be released from the jail forthwith if he is not required in any other case.