Madhu vs State Of Kerala

2. The Sessions Judge, Alappuzha convicted the accused and sentenced them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.25,000/- under Section 392 of the Indian Penal Code. The accused were sentenced to imprisonment for life under Section 302 of the Indian Penal Code. 2 The Sessions Judge directed that the aforesaid sentences would be suffered successively, i.e., one after the other. In case of default of payment of fine, the accused were to undergo further rigorous imprisonment for a period of three years. The Sessions Judge also directed that the accused would be entitled to set off equivalent to the period of their detention during the course of trial, under Section 428 of the Criminal Procedure Code.

4. The conviction of the accused at the hands of the Sessions Judge as also the High Court was based on circumstantial evidence. Principally, the conviction was ordered as a consequence of recovery of ornaments worn by the deceased, pursuant to the information furnished by the accused. Based on the aforesaid recovery, the High Court, relying on Section 114 of the Indian Evidence Act inferred that the accused had committed the murder of Padmini Devi, and thereupon, robbed her off the ornaments worn by her. The only other material evidence taken into consideration by the courts below, to return the conviction of the appellant herein (as also his co-accused Sibi) was the factum of their having been sighted close to the place of occurrence at or around the time of occurrence.

6. The prosecution case as is revealed from the charge-sheet, notices that the accused with the deliberate intention of committing the murder of Padmini Devi with the motive of robbing her of the ornaments worn by her, proceeded to Kalathil House where the deceased was residing. Padmini Devi was found alone, sitting on the ghat (place leading into water) steps leading to the paddy field, washing utensils. The ghat was situated at about 3 meters (2 meters and 75 cms.) from the last door step of the kitchen's eastern door of Padmini Devi's house (Kalathil House). It is alleged that Madhu - accused no.1, caught hold of 4 the plated hair and neck of Padmini Devi and Sibi-accused no.2, held her by her feet, and the two together forcibly dragged her into the water. Thereupon, they suffocated her. The act of drowning of Padmini Devi is alleged to have been committed by the accused at a place 29 meters from the south-east of the steps of the ghat. The accused are stated to have dragged Padmini Devi to the spot from where her body was eventually recovered, at a distance of 7 meters north- west of the foundation of the Snake God Shrine, which is to the south of the paddy field in question. Madhu-accused no.1, is alleged to have removed six gold bangles worn by Padmini Devi (on her left arm), whereas, Sibi-accused no.2, is alleged to have removed a gold chain worn by Padmini Devi (around her neck). The accused were thus alleged to have committed the murder of Padmini Devi, and the theft of her ornaments jointly.

7. The son of the deceased Asuthosh PW3 is stated to have received a phone call from his sister Ambily PW4 at 9.45 p.m. on 8.5.1998. Since Ashutosh's sister Ambily informed him that she would like to speak to her mother Padmini Devi, Ashutosh PW3 who was sleeping at the time when the call was received, got up to call his mother. He found his mother missing. He accordingly, approached his relations and neighbours. A joint search was carried out. The husband of the deceased, i.e., Ayyappa Kurup PW2 who, at that point of time, was attending to his night duty in the Telephone Exchange at Changanacherry was summoned. Ayyappa Kurup PW2 reached Kalathil House at around 11.30 p.m. The body of the deceased was found at about 11.45 p.m., from under the water in the field on the eastern side of Kalathil House. Ayyappa 5 Kurup PW2 asked Purushottama Kurup PW1 to make a complaint to the police. This decision was in fact, that the death of Padmini Devi was shrouded in suspicious circumstances. The aforesaid suspicion emerged on account of absence of her golden necklace (worn by the deceased on her neck), as also, six bangles (worn by the deceased around her left arm) when her body was recovered. Accordingly, Purushothama Kurup PW1 reported the matter to the police, disclosing the aforesaid factual position on the following morning i.e. on 9.5.1998 at 8.30 a.m..

8. On the registration of the FIR, PJ Thomas PW21, Circle Inspector of Police, reached the place of occurrence, and prepared the inquest report (Exhibit P-3). As per the inquest report. the deceased Padmini Devi alias Omana was aged 47 years. She was found by Karthikeyan Nair PW16, a neighbour and a resident of Thundiyil House in Ward No.IV, Veliyanad Village at 11.45 p.m. from the paddy field on the eastern side of his house. As per the inquest report, Padmini Devi was last seen alive at her residence by her son Aushutosh at 9.15 p.m. on 8.5.1998. As per the inquest report, apart from the dress worn by her she was wearing a gold chain around her neck of "thara" fashion weighing about 5-1/2 sovereigns, besides 4-5 golden bangles in her left hand and golden earrings in her ears, when Aushutosh saw her for the last time. The inquest report further depicts, that blood and water was oozing out from her nostrils on both sides, and her tongue was protruding out by = inch, with the mouth slightly open. Water weeds were found sticking to her hair. Ears had earrings of "claver" design. The stomach was found to be slightly bloated. The inquest report 6 records, that at a distance of 2 meter 27 cm. of the first foot-step of the kitchen door, there is a ghat (place leading into water) with three steps. The lower step of the ghat is immersed in water. At a distance of 50 cms., from the lowest foot- step the water is 75 cms. deep. The spot in the field from where the dead body of Padmini Devi was recovered, was 29 meters from the lowest foot-step. The depth of the water at the place from where the dead body was recovered is stated to be 82 cms. deep (32.28 inches, i.e., about 3 feet). The inquest report also noted, that ornaments worn around the neck and in the left arm by Padmini Devi were missing. According to the statement of Aushutosh PW3, his mother must have gone to the ghat, fallen into the water and somehow died. Yet, consequent upon the discovery of the missing golden ornaments, those present at the spot at the time of preparation of the inquest report, expressed doubts about the death of Padmini Devi. Accordingly, even though at Serial no.XI of the inquest report, it stands recorded that Padmini Devi alias Omana had died due to drowning, at Serial no.XVI it was mentioned that since the ornaments worn by her were missing, the persons present had unanimously raised a doubt about the cause of her death.

9. The contents of the First Information Report, as also, the Inquest Report constituted the first factual depiction of an occurrence. These are of utmost importance. The evidence produced by the prosecution during the course of trial, will accordingly have to be evaluated along with the aforesaid reports conjointly to substantiate the credibility of the charges levelled against the accused. During the course of hearing, some salient facts which constituted the foundation for 7 establishing the prosecution version emerged. The first and the foremost in the sequence of events, is the fact that Padmini Devi is alleged to have gone to the steps of the ghat after having taken supper, for washing utensils. The second important feature of the prosecution story is the absence of a gold necklace from around the neck of Padmini Devi, and six gold bangles worn by her on her left arm. Gold earrings worn by the deceased Padmini Devi were found intact on her ears. The third facet is the factum of the state of body of deceased Padmini Devi. The prosecution version is that Padmini Devi was first smothered and thereafter drowned. Thereby inferring murder, as against death by accidental drowning. The fourth component of the prosecution case was the presence of Madhu-accused no.1 and Sibi-accused no.2 in the vicinity of the place of occurrence at or around the time of occurrence on the fateful day i.e., on 8.5.1998. The final and the clinching basis for establishing the guilt of the accused were the confessional statements made by Madhu-accused no.1, i.e., the appellant herein, on 13.5.1998 (Exhibit P-10) to P.J. Thomas PW21, Circle Inspector of Police that he had wrapped six gold bangles belonging to Padmini Devi, in an old plastic paper, and had hidden them under the earth near the field on the southern side of his house. He offered that if he was taken to his house, he could produce the bangles. Likewise, is the confessional statement of Sibi- accused no.2 (Exhibit P-9) recorded on 13.5.1998 by PJ Thomas PW21, Circle Inspector of Police, that he had wrapped the gold chain of Padmini Devi, in a plastic paper, and had kept the same inside a "chadjan leaf" of a coconut tree, standing on the eastern side of his house. He further stated, that he could show the coconut tree and produce the chain. Consequent upon the aforesaid 8 confessional statements, (Exhibits P-10 and P-9 respectively), the police recovered the gold chain as also the six gold bangles on 13.5.1998 at the instance of the accused. These ornaments came to be identified as the necklace and bangles worn by the deceased Padmini Devi.

11. Since the prosecution endeavoured to establish the crime on the basis of circumstantial evidence, it shall be necessary for us to record a bird's eye view of the statements of witnesses produced by the prosecution. 9 First and foremost the prosecution produced Purushothama Kurup as PW1. Purushothama Kurup, deposed that he had recorded the First Information Report. He also asserted, that he had called the husband of the deceased Ayyappa Kurup (PW2) on telephone, to inform him that Padmini Devi was missing. Purushothama Kurup PW1 also deposed, that on being informed that Padmini Devi was missing, he had reached the house of the deceased and participated in her search. PW1 in his cross-examination deposed, that he had seen utensils, some of which were washed, and some were unwashed, at the upper step leading to the field, even though it was acknowledged, that he had not made any statement to the aforesaid effect to the police. Purushothama Kurup PW1 in his deposition also narrated the fact, that a gold chain of "thara" fashion weighing about 5-1/2 sovereigns and six gold bangles were missing when the dead body of Padamini Devi was recovered. In his cross-examination he affirmed that he had made the aforesaid assertion, on the basis of the statement made by the deceased's husband Ayyappa Kurup (PW2), after the dead body of the deceased was recovered.

The statement of the husband of the deceased Ayyappa Kurup ( PW2) recorded before the Sessions Court reveals, that both the accused Madhu and Sibi were known to him as they were his neighbours. He affirmed that on 13.5.1998, P.J. Thomas PW21, Circle Inspector of Police, brought the accused to his residence at about 6 p.m. The police party showed him six gold bangles, five of which were hand-cut whereas one was machine made. The police also showed him the recovered gold necklace. Ayyappa Kurup PW2 identified the recovered gold ornaments, as the ones which were worn by the deceased Padmini Devi around 10 her neck and left arm. PW2 did not depose about the gold earrings worn by the deceased Padmini Devi, which were found on her ears at the time of recovery of her dead body. Ayyappa Kurup asserted during the course of his cross examination, that he had seen the utensils at the ghat, and that, the same had been taken and restored to the house, and were available at his residence. Aushutosh, son of the deceased Padmini Devi was examined as PW3. He asserted, that the accused Madhu and Sibi were known to him. He confirmed that utensils were found lying on the eastern ghat when the search for his mother Padmini Devi was carried out. Like his father, he also identified the recovered ornaments on 13.5.1998, when the police party produced the same along with the accused at their residence.

Ambily, the daughter of the deceased Padmini Devi deposed as PW4. She confirmed having spoken to her brother over the telephone, whereupon, her brother Aushuthosh PW3 who had been sleeping, went out in search of his mother Padmini Devi, and found her missing. PW4 asserted that she had reached her parents house, after she had received a call informing her that her mother was missing. She also asserted that as usual, her mother had gone to wash utensils at the field. She also deposed that her mother's gold chain and six bangles were missing when her dead body was recovered.

Vijayalakshmi was produced by the prosecution as PW5. Vijayalakshmi deposed that the deceased Padmini Devi, as also, both the accused Madhu and Sibi were known to her, as they were residing in her neighbourhood. Vijayalakshmi had joined the search party when Padmini Devi was found missing. In her statement she deposed that she had gone to the ghat on the fateful day, where she had 11 seen two/three utensils. She asserted that the utensils were lying on the steps of the ghat. She further asserted that some of the utensils were washed while some were still unwashed. She asserted that the deceased was her aunt, and that, the golden necklace and the golden bangles worn by her aunt were missing when her body was recovered. She however acknowledged, that her aunt was still wearing the golden earrings when her body was recovered. It would be relevant to indicate here, that all the aforesaid witnesses (PW1 to PW5) were primarily associated with the search and recovery of the body of deceased Padmini Devi as also, to support the prosecution version that Padmini Devi had gone out of the house to wash utensils at the ghat, on the fateful day. All these witnesses also deposed about the missing gold ornaments, namely, a gold chain and six gold bangles.

12. The next set of witnesses produced by the prosecution was to establish the presence of accused Madhu and Sibi close to the scene of occurrence at or around the time of occurrence on 8.5.1998, as well as, matters associated therewith.

The statement of Chacko PW15 reiterates the factual position recorded in the statements of other witnesses including Gopnathan PW13 and Ramesh PW14. During the course of their cross-examination they acknowledged that they had been the part of search team. They confirmed that at the ghat he had seen 20 utensils on the steps. They asserted in their cross-examination, that all the people in the locality had assembled in the courtyard of the house of Sibi- accused no.2 before the police arrived, as the police was expected to bring the accused to effect recovery of the stolen gold ornaments.

It is significant to notice, that the presence of utensils were not depicted in the inquest report. In consonance with his inquest report, when questioned about the presence of utensils at the place of occurrence, PW21 categorically asserted, that there were no utensils either at the ghat or at the steps to the paddy fields. On the issue of earrings on the person of the body of the deceased at the time of preparation of the inquest report his statement is of some interest, and is accordingly being reproduced hereunder:

25. For all the reasons recorded by us hereinabove, the appellant- accused/Madhu, is liable to be acquitted of the charges levelled against him. Ordered accordingly. He be released forthwith, unless he is required to continue in detention in some other case.

26. Resultantly, the instant appeal is allowed and the judgments rendered by the Trial Court, as also, by the High Court convicting the appellant-accused/ Madhu are hereby set aside.

In view of the ratio laid down in the two cases referred to above, we are satisfied, that to do complete justice, it would be just and appropriate to extend the same benefit as has been extended to the appellant-accused/Madhu, also to Sibi- accused no.2. Therefore, for exactly the same reasons as have weighed with us in the instant appeal, to determine the acquittal of the appellant-accused/Madhu, we hereby order the acquittal of Sibi-accused no.2 as well, even though he has not preferred an appeal so as to assail the impugned judgment whereby he stands convicted.

28. For the reasons recorded hereinabove, even Sibi-accused no.2 is hereby acquitted. He be released forthwith, unless he is required to continue in detention in some other case.

January 13, 2012.