Kerala High Court
Shamini @ Dally vs State Of Kerala on 2 August, 2021
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
CRL.A NO.1000 OF 2017
AGAINST THE JUDGMENT IN SESSIONS CASE NO.1548 OF 2010
DATED 30.10.2017 OF THE COURT OF THE ADDL. DISTRICT &
SESSIONS JUDGE-VI, THIRUVANANTHAPURAM.
[C.P.NO.63/2010 OF JUDICIAL FIRST CLASS MAGISTRATE-I
ATTINGAL, IN
CRIME NO.111/2007 OF KADINAMKULAM POLICE STATION,
CRIME NO.97/CR/TVM/08 CBCID, HHW1, HO, TVPM]
----------
APPELLANT/ ACCUSED NO.5:
SNAGAPPAN, S/O. ARULAPPAN,
SMILES LAND, MARYANAD DESOM,
KADINAMKULAM VILLAGE.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SRI.T.ANIL KUMAR
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.THOMAS ABRAHAM NILACKAPPILLIL
SRI.E.VIJIN KARTHIK
RESPONDENT/ COMPLAINANT:
STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI-682031.
BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.07.2021, ALONG WITH CRL.A.1034/2017, THE COURT ON
02.08.2021 DELIVERED THE FOLLOWING:
Crl.A.Nos.1000/2017 & - 2 -
1034/2017
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
CRL.A NO.1034 OF 2017
AGAINST THE JUDGMENT IN SESSIONS CASE NO.1548 OF 2010
DATED 30.10.2017 OF THE COURT OF THE ADDL. DISTRICT &
SESSIONS JUDGE-VI, THIRUVANANTHAPURAM.
[C.P.NO.63/2010 OF JUDICIAL FIRST CLASS MAGISTRATE-I ATTINGAL,
IN
CRIME NO.111/2007 OF KADINAMKULAM POLICE STATION,
CRIME NO.97/CR/TVM/08 CBCID, HHW1, HO, TVPM]
----------
APPELLANTS/ACCUSED NOS.1&2:
1 SHAMINI @ DALLY, AGED YEARS, D/O.DOMINIC,
SHAMINI COTTAGE, MARYANAD DESOM,
KADINAMKULAM VILLAGE.
2 BIJIL ROKKY, S/O. ROKKY DISELVA,
TAIVILAKOM HOUSE, VALIYATHURA,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.P.M.RAFIQ
SRI.M.REVIKRISHNAN
SRI.C.JAYAKIRAN
SMT.MITHA SUDHINDRAN
SRI.VIPIN NARAYAN
SRI.AJEESH K.SASI
SRI.V.C.SARATH
SMT.POOJA PANKAJ
SRUTHY N. BHAT
SHRI.ABEL TOM BENNY
SMT.KIRAN ANTONY.
Crl.A.Nos.1000/2017 & - 3 -
1034/2017
RESPONDENT/ COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM - 682 031.
BY SENIOR PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.07.2021, ALONG WITH CRL.A.1000/2017, THE COURT ON
02.08.2021 DELIVERED THE FOLLOWING:
Crl.A.Nos.1000/2017 & - 4 -
1034/2017
K. Vinod Chandran & Ziyad Rahman A.A., JJ.
-------------------------------------------
Crl.A.Nos.1000/2017 & 1034/2017
------------------------------------------
Dated this the 02nd August 2021
JUDGMENT
Vinod Chandran, J.
Murder, suicide or accidental death is the most
vexing question that arises in this case, where the body
was exhumed on complaints made by the relatives of the
deceased, against the children of the deceased and his
wife's relative. The issue was compounded by the fact
that the relative of the wife, who assisted the children
throughout, had political affiliations which led to
public protest. This is another case where the police
succumbed to public pressure.
2. The charge is under Sec.302 read with Sec.34
of Indian Penal Code [for brevity 'the IPC'] as against
A1 to A4. The crime alleged is one of patricide by the
daughter (A1), the son-in-law (A2) and the son (A3),
actively aided by the friend of the son (A4). A5 is a
close relative, on the maternal side of A1 & A2, who has
been charged under Sec.201 IPC. The prosecution case is
that on 06.08.2007, at midnight, A1 to A4 entered the
bedroom of the deceased, the father of A1 & A3, to
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question him concerning the life interest reserved for
himself in Ext.P33 document. A1 to A4 together banged the
head of the deceased on the wall of the room and later
tried to make out a case of suicide, with the help of A5.
The relatives and neighbours were summoned in the morning
and they saw the deceased lying on the floor with a dhoti
hanging from the ceiling fan. Some tried resuscitation
and having failed; the victim was rushed to the hospital
in a taxi. At first, he was taken to the clinic of PW13,
who asked him to be taken to a higher centre. The victim
was then taken to the Public Health Centre and since no
Doctor was available, he was taken to another clinic
owned by PW14. PW14 is an Ayurvedic Doctor, who examined
the victim and advised that he be taken to the Medical
College Hospital. Death having been confirmed, he was
brought back to his residence and given a burial as per
the custom. Much later, on 23.08.2007, PW1, the sister of
the deceased, made a complaint raising suspicion about
the death of her brother. The body was exhumed on
09.10.2007 and a postmortem conducted. Two injuries were
noted on the back of the head, which was the cause of
death. An investigation was conducted and A1 to A4 were
booked for murder, while A5 was roped in under S.201 IPC.
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3. The motive alleged by the prosecution was the
animosity of A1 to A3 against the father for reserving
life interest in Ext.P33 document while settling 10 cents
of his property in the name of his daughter and
son-in-law; which belonged to himself and his wife. The
motive is spoken of by the witnesses, who are the
relatives of the deceased. On the background facts, the
wife of the deceased died in a motor accident in the year
2005. On 01.08.2007 A1 married A2. The property, in which
the deceased along with his children were residing,
belonged jointly to the deceased and his wife. After the
death of his wife, the deceased held the property along
with the legal heirs of his wife, being the two children
and their maternal grandmother. On 03.08.2007, just two
days after the marriage, the children and their maternal
grandmother executed Ext.P32 deed releasing their
interest in the property in the name of the deceased.
Immediately afterwards, on the same date, Ext.P33 deed
was executed by the deceased in the name of his son and
daughter, reserving life interest in the property.
4. Sri.B. Raman Pillai learned Senior Counsel,
instructed by Sri.R.Anil, appeared for A5 and
Sri.P.Vijayabhanu, learned Senior Counsel, instructed by
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Smt.Pooja Pankaj appeared for A1 and A2. Sri.Alex
M.Thombra, learned Senior Public Prosecutor, appeared for
the State.
5. Sri.Raman Pillai read the charge-sheet to
point out that there is no allegation against A5 as would
attract Sec.201 IPC. The worst accusation against A5 can
only be that he supported the children insofar as
resisting a postmortem. Even if the crime is found as
against A1 to A4, there is nothing to indicate that A5
knew about the crime. There is nothing brought out as to
A5 having caused the disappearance of evidence or giving
false information to screen the offenders. It is pointed
out from the contradictions of PW2 that it was he, who
summoned A5. Being a close relative of the wife of the
deceased, A5 assisted the children by attempting to
provide medical care to the deceased. PW13, the Doctor to
whom the victim was first taken, does not speak of any
visible injury on the victim. PW14, the Doctor who
confirmed the death, also does not speak of any suspicion
regarding death. A5 has been unnecessarily booked for the
crime, for reason only of his political affiliation. The
death occurred on 06.08.2007 and it was on 25.08.2008,
almost one year after the exhumation of the body, that
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the crime registered under Sec.174 of Cr.P.C. for
unnatural death was changed to Sec.302 IPC. Again, after
four months, on 26.12.2008, Sec.120B & 201 were added as
against A1 to A4. Still two months later, on 28.02.2009
A5 was drawn into the net; obviously to appease the
protesting public, instigated by his political rivals.
A5, the learned Senior Counsel asserts, has to be
acquitted. Sri.Raman Pillai relies on Dinesh Kumar
Kalidas Patel v. State of Gujarat [2018 KHC 6098 = (2018)
3 SCC 313], Suleman Rahiman Mulani v. State of
Maharashtra [1968 KHC 616 = AIR 1968 SC 829] and
Sou.Vijaya Alias Baby v. State of Maharashtra [2003 KHC
1606 = (2003) 8 SCC 296].
6. Sri.P.Vijayabhanu points out that there is no
evidence, either circumstantial or scientific, to
establish the crime having been committed by A1 to A4.
What is discernible is only petty squabbles between
families, which surfaced with venom on the death. The
relatives of the deceased had an eye on his property,
which prompted them to raise allegations of murder
against A1 to A3. A4 is a friend of A3 and both are
juveniles, who have not been tried by the Sessions Court.
Sec.313 statement of A1 is specifically pointed out and
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read over in its entirety. A plausible explanation has
been offered by the accused and there is nothing concrete
to prove that there was a murder committed and that the
children were involved in the crime. None of the Doctors,
including the Doctor who conducted the postmortem, spoke
of a bleeding injury. The body was washed by the local
residents and none of the witnesses spoke of any bleeding
from the body. The persons who gathered there, including
the residents of the house, were under the impression
that the deceased had suffered a heart-attack; hence they
attempted to resuscitate the fallen man by pressing on
his chest. The last seen theory has no legs to stand
since admittedly the accused were residing along with the
deceased in the house. That the deceased did not keep
close ties with his extended family is very clear from
the evidence led. The son of PW1 (PW15) spoke against
what PW1 said. The various motives alleged were not
spoken of when the initial complaint was raised. Later
embellishments were made in an attempt to make more
credible, the cooked up motive. A1 & A2 were newly
married and the deceased had given them the property in
which he was residing. Except for the interested
testimony of the relatives of the deceased, there is no
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evidence of any rancour between the deceased and his
children. The life interest reserved was with the
knowledge of the beneficiaries and there is no reason for
the daughter to demand that the father quit his house
just five days after her marriage and two days after the
deed was registered with their knowledge. The prosecution
has miserably failed to establish the offence and in any
event, it has not been proved beyond all reasonable
doubt. The learned Senior Counsel relies on State of
Odisha v. Banabihari Mohapatra [2021 SCC OnLine SC 121],
Shivaji Chintappa Patil v. State of Maharashtra [2021 SCC
OnLine SC 158] and Gargi v. State of Haryana [(2019) 9
SCC 738].
7. Sri.Alex M.Thombra, on the contrary, would
assert the motive. The evidence of the prosecution
witnesses establishes that the deceased was not happy
with the conduct of A1 & A2. PW1, PW7 & PW12 specifically
speak of the presence of A1 to A4 along with the deceased
in his house on the crucial day. The accused owe an
explanation to the Court as to what transpired, which
they also have to establish by cogent evidence. Though a
written statement has been submitted under Sec.313, there
is no proof offered. There is a burden cast under Sec.106
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of the Indian Evidence Act on the accused to explain the
death caused in a house where their presence was
established. There were bloodstains recovered from the
room in which the crime occurred, as can be seen from the
evidence of PW27 & PW28. The medical evidence also
clinches the guilt of the accused. The learned Prosecutor
seeks for dismissal of the appeals.
8. PW1 is the sister of the deceased, who gave
Ext.P1 FIS. The FIS was registered on 23.08.2007 and it
spoke of the deceased having come to her residence early
morning on 06.08.2007. He informed PW1 that, his wife's
relative, A5, asked him not to enter the house of the
deceased. PW1 then asked the deceased why he should be
ejected from his house since he had settled the property
on his children; to be enjoyed only after his death.
However, he apprehended that he was duped and though the
reservation was there in the draft read over to him, it
has not figured in the deed registered. PW1 asked her
brother to return to his house and assured him that she
will look-after him even if his children throw him out.
The deceased remained with PW1 till around 6.30 in the
evening and later she was informed that the deceased was
taken home by his son from the Church ground at around
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10.30 p.m. On 07.08.2007, at 7 a.m., Jose (PW2) her
nephew informed her about Dominic having committed
suicide by hanging. She immediately rushed to her
brother's residence and reached there by around
7.30 a.m., when the deceased was brought dead in a car by
A5 and another person. She says that she was not able to
enquire as to what happened and later, in the evening,
her brother was buried in the Church cemetery.
Subsequently, she called A3 on 10.08.2007 and asked him
as to what transpired after he took his father back from
the Church ground on 06.08.2007. He told her that, after
food all of them had retired for the night to their
respective rooms and then, disconnected the call. This
raised suspicion in her mind and she made the complaint
on 23.08.2007.
9. The medical evidence, according to the trial
Court, establishes the death to be one of homicide. The
body was exhumed after two months and was in a decomposed
state. There was a dispute raised as to proper
identification having not been made. The Doctor, PW19 who
conducted the postmortem, in the cross-examination by A5,
denied that the body was in an unidentifiable state. The
brother of the deceased, PW3, identified the body. The
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body was also exhumed from the spot where the deceased
was buried in the presence of the local people. We find
no reason to doubt the identification. The postmortem
report shows two ante-mortem injuries:
"1. Contusion of scalp 9x7x0.3 cm on the back of
head overlying the left parietal eminence.
2. Contusion of scalp 3x3x0.3 cm on the back of
head in the midline 2 cm above occiput."
10. PW19 Doctor opined that death was due to
head injury and that the injuries could not have been
caused voluntarily by the deceased. The prosecution case
that the injuries were caused by the accused, by banging
the victims head on the wall was opined to be a probable
cause. It was also opined that there was no sign of
hanging in the body; especially since the Hyoid bone,
Thyroid cartilages and the tracheal rings were intact.
Though it was admitted that in all cases of hanging,
these structures need not be fractured, it was also
stated that there was no internal evidence of hanging.
We think that death by hanging can be ruled out and it is
fairly clear that the death was caused because of the
injuries on the back of the head, which could not be
caused voluntarily. Still, the question remains whether
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it was a homicide or an accidental death. In the
cross-examination for A1 & A2, to a specific question,
PW19 Doctor answered that the injuries could occur if the
person fell first on the table and then onto the floor;
with his head hitting on both surfaces. We cannot, hence,
conclusively from the medical evidence, come to a finding
that the death was a homicide. It could very well have
been an accident.
11. PW1, the sister of the deceased, in her
deposition, spoke in tandem with Ext.P1 FIS as to what
transpired on 06.08.2007 and the early morning of
07.08.2007. She additionally spoke of seeing a dhoti
hanging from the ceiling fan when she entered the house
of the deceased. She also spoke of A5 having assured the
other inmates of the house that he will take care of the
Police if they turn up. According to her two policemen
came to the spot, on her son Jerry insisting for a
postmortem. However, no post-mortem was conducted since
the relatives of A5 resisted the same and created a
fracas, upon which the Police returned. She specifically
spoke of the deceased having told her that the
reservation made for life interest in the Settlement Deed
executed by him was read over to him from a white paper.
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He was made to sign a stamp paper, which did not contain
the reservation. However, we see from Ext.P33 Settlement
Deed executed in favour of A1 & A2 that the reservation
of life interest of the executant is very much available
in the recitals.
12. In a deviation from what was stated in the
FIS, PW1 deposed that in the evening of 06.08.2007, when
she went out for some purchases, the deceased had left
his money, chappals and watch with PW1's daughter and
gone to take a bath. On the deceased not returning, PW1
had called A1 to speak about the Settlement Deed and
threatened her that they would seek to set aside the deed
executed by the deceased. A1 then assured her that she
would send her brother to bring back her father.
According to PW1 at around 9.30 p.m. A3 & A4 came to her
residence enquiring after the deceased and went off. Then
later A4 alone came back to take back the things left by
the deceased. She also made several allegations against
A5, which have no bearing on the crime proper. PW1 also
deposed before Court that, the deceased had planned to
marry again, the children were inimical towards him for
that reason and the reason of the compensation awarded
for the death of the mother in an accident being
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appropriated by him. None of these was stated to the
police at the time of FIS or when a statement under S.161
was recorded. The I.O, PW33, also deposed that PW1 had
not stated to the police that (i) the deceased had
entrusted certain things with her daughter and gone to
take a bath or (ii) someone having demanded a postmortem,
before the burial. More importantly, Ext.D1 statement of
PW1 before the Police was to the effect that, only on the
next day she was told that the police were not informed
and the burial was without a postmortem. This is quite in
contradiction to her deposition that she and her family
raised the issue of postmortem. PW20 is the Head
Constable, who took down Ext.P1 FIS. He denied PW1 having
spoken of any enmity in the family of the deceased,
setting aside of the Deed executed by the deceased, the
proposal of the deceased to enter into a second marriage
and the issue of insurance claims on behalf of the wife
of the deceased.
13. PW2 is the nephew of the deceased and PW1;
who informed PW1 about the death. When he reached the
house of the deceased, he saw the deceased lying on the
cot in his room. On the neighbour's suggestion, he and
one Shibu tried to resuscitate the deceased by pressing
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on his chest. At that point, A5 came there and PW2, along
with A2 & A5 as also the aforementioned Shibu, carried
the deceased to the car. He did not accompany the
deceased to the hospital and after half an hour the
deceased was brought back. He also spoke of A5 having
told the inmates of the house that he will take care of
the Police. It is stated that PW1 and her children,
Antony and Jerin (Jerry), insisted on a postmortem, which
was opposed by A5 and his relatives. He also says that
the relatives of the wife of the deceased picked up a
quarrel with PW1 and her children. When the Police turned
up, A5 talked to them and sent them back. Ext.D2 was the
161 statement of PW2 that he called up A5 and informed
him about what has happened in the house of the deceased
and also requested him to bring a car. He admitted that
he told the Police as per Ext.D3 that when he reached the
house of the deceased, he was informed that the deceased
was taken to hospital. Ext.D4 contradiction is the
statement of PW2 that after the death of his wife the
deceased was depressed and probably that is why he
committed suicide by hanging.
14. PW3 is the brother of the deceased, who was
in Qatar at the time of his brother's death. According to
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PW3, PW1 told him that the death occurred by hanging and
when A1 went to the room of the deceased in the morning,
she saw him hanging from the fan. He spoke of his brother
having told him that he intends to give 10 cents of
property to A1 after her marriage. In cross-examination,
PW3 admitted that PW1 was upset with the deceased for
always consulting only with his wife's relatives. He also
said that PW1 did not participate in every function in
connection with the marriage of A1 & A2, since she was
not invited. As far as the animosity of A1 regarding the
life interest created in Ext.P33, he did not have direct
knowledge and he had heard of it from PW1. PW5 is the
sister-in-law of the deceased. PW5 also stated that A5
resisted a postmortem and she added that there was a
physical altercation between A5 and the children of PW1,
Antony and Jerin (Jerry). She also spoke of the deceased
being depressed for reason of the Settlement Deed in
favour of A1 & A2. According to her, the deceased
expressed a wish to set aside the Deed. PW6 is another
sister-in-law of the deceased [wife of PW3]. The deceased
told her that the relatives of his wife cheated him and
and that he would not attend a function in connection
with his daughter's marriage. Eventually, PW6 persuaded
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him to go for the function, which is the deposition. She
also spoke of the quarrel between PW1's children and A5
concerning the postmortem, which however was not stated
to the Police.
15. PWs.1 to 3, 5 & 6 are the relatives of the
deceased, who spoke for the prosecution before the Court.
A reading of their evidence would indicate some
inconsistencies. PW1, though stated that her son Jerin
(Jerry) brought policemen to the house of the deceased,
she did not speak of any quarrel. PWs.2, 5 & 6, however,
spoke of there being an altercation between A5 and the
children of PW1. Here we notice the specific deposition
of the policemen, who went to the spot before the funeral
took place, PWs.21 & 22. PW21 is an Assistant Sub
Inspector of Police, who was informed by the Officer in
charge of the General Diary [G.D.] that there was a
hanging. He was deputed to visit the spot, along with two
policemen, one of whom is PW22. When they reached the
spot, the last rites were going on and the body was
placed inside a coffin. On being asked why the police
were there, he informed A5 about the information received
at the Police Station. A5 told him that the death
occurred naturally and that the deceased had heart
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ailments. When he requested statements to be taken from
the children of the deceased, A5 told him that the
daughter's marriage had occurred only a few days back.
Both A1 & A3, the children of the deceased, told him that
it was a natural death. The police team did not want to
create any interference and left the scene. PW22
corroborated the version of PW21 but added that when the
police suggested postmortem, the people gathered there
became agitated and hence, the police team returned. PW22
also stated that if there is a chance of a law and order
problem arising in the locality, the Police do not ignore
it, since the locality is so volatile that often when a
problem erupts, it ends in firing.
16. It is very pertinent that PWs.21 & 22 does
not speak of any request having been made to them by
anyone in the locality for conducting a postmortem on the
body. PWs.4, 7, 8, 10, 11 & 15 turned hostile. PW4 is a
social worker, who has political affiliations. He turned
completely hostile and Exts.P4 to P11 contradictions were
marked from the Sec.161 statement. PW4 is also a close
relative of the deceased, who did not support the case
spoken of by the other relatives, whose evidence was
discussed herein above. PWs.7 & 8 were to speak on the
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presence of the deceased in the house and having seen A1
& A2 together on the previous night. Though they turned
hostile, it is of no consequence, since admittedly the
deceased, his children and his son-in-law were in the
house on the previous night. PW10, though turned hostile,
a reading of his evidence would indicate that he was the
person who took the deceased to the hospital and brought
him back to the house. This aspect has no connection with
the crime proper. PW11, another relative, denied visiting
the house of the deceased. PW15 is very relevant insofar
as he is the son of PW1, who, along with his brother,
insisted on postmortem and according to certain
witnesses, picked up a quarrel with A5 on that count. He
denied any quarrel having erupted in the house. He denied
Exts.P22 to P25 marked from Sec. 161 statement made to
the Police. He denied having insisted on a postmortem to
be conducted on the deceased. The evidence of PWs.21 & 22
policemen, independent witnesses, who visited the site
and that of PW15, the son of PW1 establishes that nobody
who was at the house of the deceased demanded a
postmortem. The other son of PW1, Jerin (Jerry) spoken of
by PW1 and some witnesses was not examined.
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17. The scientific evidence collected in the
above case is spoken of by PW.27 to PW30. PW27 examined
the scene of occurrence and collected MOs.2 to 6 on
26.07.2008. PW27 was accompanied by PW33 when such
seizure was effected. It is the evidence of PW33 that on
25.07.2008 he came to the scene of occurrence and
collected the ashes as per Ext.P14, which allegedly was
the remains of lungi and pillow cover used by the
deceased on the crucial day. There is no confession
statement recorded and nothing was discovered from the
ashes. He also examined the room where the deceased was
found dead and noticing brown stains on the wall, it was
sealed on that day and on the very next day PW27
collected MOs.2 to 6. PW28 produced Ext.P35 FSL report.
Human blood was detected in item Nos.2 & 3 and blood,
insufficient to identify the source, from item Nos.1, 5
& 9. Item Nos.2 & 3 are grey and light yellow powders,
which from the labels on the covers were the brown stains
found in the eastern and southern walls. Item No.1 is a
dhoti with a green border, item No.5, stains from the
door seen along the edges and the inside, and item No.9,
a green bed cover. The test result is insufficient to
find any crime committed in the room as alleged by the
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prosecution. More pertinent is the fact that the death
occurred on 06.08.2007 and the collection of samples was
after about a year on 26.07.2008. The house was inhabited
all this while and the sealing of the doors by PW33 on
26.07.2008, according to us, is farcical. We cannot also
ignore the fact that A1, in her statement under Sec.313,
specifically says that PW33 carried some packets into the
room and at the time of inspection nobody else were
allowed inside. Later he locked the room and came back
the next day with PW27.
18. PW29 examined MO1 dhoti and the report was
produced as Ext.P36. He stated before Court that there
was no evidence of stretching detected on any portion of
the dhoti. However, we do not find any such statement
having been recorded in the report. In any event, even
the accused do not have a case that the deceased was seen
hanging. The specific statement made by A1 & A2, who are
the inhabitants of the house, was that they saw the
deceased lying on the floor. No reliance can be placed on
the scientific evidence produced before the Court for
reason of nothing material having been detected. Also,
the delay in collection of samples restrains us from
linking the blood detected to the crime. We also notice
1034/2017
that PW24 specifically spoke of A1 having agreed to a
polygraph test and the same having been carried out.
However, PW34 does not speak of the result of the
polygraph test nor is the report produced. According to
the learned Counsel for the appellants, the factum of
such report having been suppressed from the Court stands
against the prosecution under Sec.114, illustration (g)
of the Indian Evidence Act.
19. The case is one on circumstantial evidence
and the principles though well-established needs
reiteration and we quote from Ashish Batham v. State of
M.P [(2002) 7 SCC 317]
"6. The principles, which should guide and weigh
with the courts administering criminal justice in
dealing with a case based on circumstantial
evidence, have been succinctly laid down as early
as in 1952 and candidly reiterated time and again,
but yet it has become necessary to advert to the
same, once again in this case having regard to the
turn of events and the manner of consideration
undertaken, in this case by the courts below. In
Hanumant Govind Nargundkar v. State of M.P. AIR
1952 SC 343 it has been held as follows: (AIR pp.
345-46, para 10)
"In dealing with circumstantial evidence the
rules especially applicable to such evidence
must be borne in mind. In such cases, there is
always the danger that conjecture or suspicion
may take the place of legal proof and therefore,
it is right to recall the warning addressed by
Baron Alderson to the jury in R. v. Hodge 168 ER
1136 where he said:
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'The mind was apt to take a pleasure in
adapting circumstances to one another, and
even in straining them a little, if need
be, to force them to form parts of one
connected whole; and the more ingenious
the mind of the individual, the more
likely was it, considering such matters,
to overreach and mislead itself, to supply
some little link that is wanting, to take
for granted some fact consistent with its
previous theories and necessary to render
them complete.'
It is well to remember that in cases where the
evidence is of a circumstantial nature, the
circumstances from which the conclusion of
guilt is to be drawn should in the first
instance be fully established, and all the
facts so established should be consistent only
with the hypothesis of the guilt of the
accused. Again, the circumstances should be of
a conclusive nature and tendency and they
should be such as to exclude every hypothesis
but the one proposed to be proved. In other
words, there must be a chain of evidence so far
complete as not to leave any reasonable ground
for a conclusion consistent with the innocence
of the accused and it must be such as to show
that within all human probability the act must
have been done by the accused."
These principles were needed to be restated even as
late as in the decision reported in Sudama Pandey
v. State of Bihar (2002) 1 SCC 679 and Subhash
Chand v. State of Rajasthan (2002) 1 SCC 702".
Gargi (supra) quoted from several decisions and
succinctly stated:
"18.5. Thus, circumstantial evidence, in the
context of a crime, essentially means such facts
and surrounding factors which do point towards the
complicity of the charged accused; and then, chain
of circumstances means such unquestionable linking
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of the facts and the surrounding factors that they
establish only the guilt of the charged accused
beyond reasonable doubt, while ruling out any
other theory or possibility or hypothesis".
20. What is discernible from the evidence led is
that, on the morning of 07.08.2007 the inmates of the
house, A1 to A3 and A4, who slept over, found the
deceased lying on the floor unconscious. They immediately
informed the neighbours and relatives. Those who came to
the house of the deceased, seeing him lying supine, tried
to first revive him and on failing, took him to the
hospital. They went to a private clinic, where they were
advised to go to a higher centre and then went to the
PHC, where there was no Doctor. The deceased was then
taken to another clinic, from where he was directed to be
taken to the Medical College Hospital. Obviously, life
having passed, the body was brought back to the house.
The children of the deceased and the relatives did not
want a postmortem to be done, since according to them his
death was of natural causes. There was a dhoti found
hanging from the ceiling fan in the room where the
deceased was found, which indicate an attempt to hang.
The death is not a suicide since no telltale signs of
hanging by suicide was seen in the body by PW19 who
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carried out the postmortem. It is also pertinent that the
accused was examined by two doctors, PW13 & PW14, both of
whom did not see the wounds on the back of the head and
more relevant is the fact that they do not speak of any
bleeding from the body at the time of their examination.
21. The only motive spoken of before the Police
was the apprehension the deceased expressed to PW1 that
the recital of life interest was purposefully excluded
from Ext.P33 document. The other motive of the desire of
the deceased to get married again, appropriation of
insurance amount received after the death of his wife and
the decision to take steps to set aside Ext.P33 Deed were
not spoken of to the Police by any of the witnesses. PW1
herself in cross-examination said that the insurance
amounts were used by the deceased to build a house,
obviously, the one he was living in. We had looked at the
Settlement Deed produced as Ext.P33, which contains the
life interest reserved in favour of the executant, who is
the deceased. The motive stands disproved. PW1 obviously
was not on good terms with the deceased or his children.
Her own brother, PW3 spoke of her animosity towards the
deceased for the reason of always having consulted only
his wife's family.
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22. PW1 and the other witnesses asserted a
quarrel having erupted between the named children of PW1
and A5 and his family members concerning the postmortem
to be conducted on the body. PW15, the named son of PW1,
who is alleged to have raised the question of postmortem,
denied his having raised it and also denied any quarrel.
The testimony of PW15 corroborates that of PWs.21 & 22
Police officers, who came to the spot. They saw no
difference of opinion among the people gathered at the
house of the deceased. According to them, the local
people resisted a postmortem and so did the children of
the deceased. This prompted them to go back without any
interference to the last rites of the deceased, carried
on in his house. As has been held in Gargi (supra), the
implicating circumstances particularly the foundation of
motive of animosity of the children towards the father
has not been established by cogent evidence. The motive
spoken of by the witnesses is the attempt to evict the
deceased from his house for reason of no life interest
having been reserved in the Deed executed by him in
favour of his daughter and son-in-law. The evidence is
otherwise and Ext.P33 specifically recites the
reservation. There is no motive worthy of consideration
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nor is there any medical or scientific evidence to find
the death to be a homicide. Though suicide by hanging can
be ruled out, we cannot rule out the possibility of the
deceased having fallen on the table and then onto the
floor. There is also the possibility of the deceased
having fallen from the table, which he mounted to hang
himself and in the process, hit his head on the table and
then on the floor. The Doctor who conducted the
postmortem also agreed with such a possibility from the
nature of wounds found on the body; both on the back of
the head.
23. No witness, who saw the body in the room or
taken to the hospital or brought back and taken for
burial after last rites, spoke of any bleeding from the
body. We cannot rule out accidental death and in that
circumstances there lingers a reasonable doubt in our
minds. The prosecution has failed to prove any
circumstance to link the accused with the alleged murder
of the deceased. The 'last seen theory' has no legs to
stand since the daughter, son-in-law and son along with
the deceased-father were living in the same house. Gargi
& Shivaji Chintappa Patil (both supra) held, the last
seen theory is not conclusive when it is a husband and
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wife whose companionship does not give rise to any
presumption of guilt of one, for the murder of the other.
Similarly here too admittedly the accused were residing
along with the deceased and their being in the same house
does not lead to any presumption of guilt. The cited
decision also held that Sec. 106 does not absolve the
prosecution from establishing the guilt of the accused
and the primary burden has to be discharged. There is an
explanation offered by the other inmates of the house
that they found him lying supine in the morning. There
cannot be any proof offered by the inmates of what
transpired in the room of the deceased. It cannot be
concluded merely for reason of no proof of the
explanation, that the death was the result of a murder.
At the risk of repetition, the Doctor agreed with the
possibility of an accidental death considering the nature
of the injuries to the head, which was the declared cause
of death.
24. Banabihari Mohapatra (supra) was a similar
case where the accused was found lying motionless in a
room held by one of the accused and a complaint of
murder was lodged accusing the holder of the room, on
mere suspicion. Except for the related witnesses, some
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turned hostile and the others did not say anything
incriminating the accused. The related witnesses stated
more or less what was stated in the FIS but there were
apparent inconsistencies, inaccuracies and inherent
improbabilities. We quote from Kali Ram v. State of
H.P., (1973) 2 SCC 808, at page 820 relied on in the
cited decision:
"25. Another golden thread which runs through
the web of the administration of justice in
criminal cases is that if two views are possible
on the evidence adduced in the case, one pointing
to the guilt of the accused and the other to his
innocence, the view which is favourable to the
accused should be adopted. This principle has a
special relevance in cases wherein the guilt of
the accused is sought to be established by
circumstantial evidence. Rule has accordingly
been laid down that unless the evidence adduced
in the case is consistent only with the
hypothesis of the guilt of the accused and is
inconsistent with that of his innocence, the
Court should refrain from recording a finding of
guilt of the accused. It is also an accepted rule
that in case the Court entertains reasonable
doubt regarding the guilt of the accused, the
accused must have the benefit of that doubt. Of
course, the doubt regarding the guilt of the
accused should be reasonable; it is not the doubt
of a mind which is either so vacillating that it
is incapable of reaching a firm conclusion or so
timid that is hesitant and afraid to take things
to their natural consequences. The rule regarding
the benefit of doubt also does not warrant
acquittal of the accused by resort to surmises,
conjectures or fanciful considerations. As
mentioned by us recently in the case of State of
Punjab v. Jagir Singh (1974) 3 SCC 227 = 1973 SCC
(Cri) 886 a criminal trial is not like a fairy
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tale wherein one is free to give flight to one's
imagination and fantasy. It concerns itself with
the question as to whether the accused arraigned
at the trial is guilty of the offence with which
he is charged. Crime is an event in real life and
is the product of interplay of different human
emotions. In arriving at the conclusion about the
guilt of the accused charged with the commission
of a crime, the Court has to judge the evidence
by the yardstick of probabilities, its intrinsic
worth and the animus of witnesses. Every case in
the final analysis would have to depend upon its
own facts. Although the benefit of every
reasonable doubt should be given to the accused,
the Courts should not at the same time reject
evidence which is ex facie trustworthy on grounds
which are fanciful or in the nature of
conjectures.
26. It needs all the same to be re-emphasised
that if a reasonable doubt arises regarding the
guilt of the accused, the benefit of that cannot
be withheld from the accused. The Courts would
not be justified in withholding that benefit
because the acquittal might have an impact upon
the law and order situation or create adverse
reaction in society or amongst those members of
the society who believe the accused to be guilty.
The guilt of the accused has to be adjudged not
by the fact that a vast number of people believe
him to be guilty but whether his guilt has been
established by the evidence brought on record.
Indeed, the Courts have hardly any other
yardstick or material to adjudge the guilt of the
person arraigned as accused. Reference is
sometimes made to the clash of public interest
and that of the individual accused. The conflict
in this respect, in our opinion, is more apparent
than real. As observed on p. 3 of the book
entitled The Accused by JA Coutts 1966 Edition,
"When once it is realised, however, that the
public interest is limited to the conviction, not
of the guilty, but of those proved guilty, so
that the function of the prosecutor is limited to
securing the conviction only of those who can
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legitimately be proved guilty, the clash of
interest is seen to operate only within a very
narrow limit, namely, where the evidence is such
that the guilt of the accused should be
established. In the case of an accused who is
innocent, or whose guilt cannot be proved, the
public interest and the interest of the accused
alike require an acquittal".
27. It is no doubt true that wrongful
acquittals are undesirable and shake the
confidence of the people in the judicial system,
much worse, however, is the wrongful conviction
of an innocent person. The consequences of the
conviction of an innocent person are far more
serious and its reverberations cannot but be felt
in a civilised society. Suppose an innocent
person is convicted of the offence of murder and
is hanged, nothing further can undo the mischief
for the wrong resulting from the unmerited
conviction is irretrievable. To take another
instance, if an innocent person is sent to jail
and undergoes the sentence, the scars left by the
miscarriage of justice cannot be erased by any
subsequent act of expiation. Not many persons
undergoing the pangs of wrongful conviction are
fortunate like Dreyfus to have an Emile Zola to
champion their cause and succeed in getting the
verdict of guilt annulled. All this highlights
the importance of ensuring, as far as possible,
that there should be no wrongful conviction of an
innocent person. Some risk of the conviction of
the innocent, of course, is always there in any
system of the administration of criminal justice.
Such a risk can be minimised but not ruled out
altogether. It may in this connection be apposite
to refer to the following observations of Sir
Carleton Alien quoted on p. 157 of The Proof of
Guilt by Glanville Williams, 2nd Edn.:
"I dare say some sentimentalists would assent
to the proposition that it is better that a
thousand or even a million guilty persons
should escape than that one innocent person
should suffer; but no responsible and practical
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person would accept such a view. For it is
obvious that if our ratio is extended
indefinitely, there comes a point when the
whole system of justice has broken down and
society is in a state of chaos."
28. The fact that there has to be clear
evidence of the guilt of the accused and that in
the absence of that it is not possible to record a
finding of his guilt was stressed by this Court in
the case of Shivaji Sahabrao as is clear from the
following observations:-
"Certainly it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental
distinction between "may be" and "must be" is long
and divides vague conjectures from sure
conclusions."
We quoted copiously from the aforesaid judgment since the
principles apply squarely even after half a century.
These principles are to be hammered into our heads;
assimilated, imbibed and absorbed. We caution the trial
courts, for we see a tendency to convict on mere
preponderance of probabilities and not proof beyond a
reasonable doubt. In the present case, we see no
circumstance linking the accused to the crime except for
the fact that A1 to A3 are natural residents of the house
of their father, wherein he was found dead. A4's was a
chance presence for he just decided to sleep over in his
friend's house as there was a church festival going on.
We do not find any reason to uphold the conviction of A1
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& A2 and we acquit them of the charges framed against
them.
25. As has been found in Dinesh Kumar Kalidas
Patel v. State of Gujarat [2018 KHC 6098 = (2018) 3 SCC
313], a conviction under the main offence is not
necessary to convict the offender under Section 201.
However, it was held that it is imperative that two
things are established, that an offence was committed and
that the accused had knowledge or at least reason to
believe that an offence has been committed. We find it
pertinent to extract the charge as read over by the
learned Senior Counsel:
"That on 06.08.2007 in building bearing door
No. KP.XVIII/63 situated 60 metres south of
Kurishadi junction Maryanad, Kadinamkulam
of you along with Mariyadas and David jointly in
furtherance of your common intention committed
murder of Dominic, father of number one of you,
by hitting the head of Dominic on the wall with
the intention of causing his death and also
causing his head to hit on floor and you have
thereby committed the offence of murder
punishable u/s.302 of the IPC;
Then and there you had conspired to
destroy evidence and to make it appear that it
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was a case of suicide and had hung the body of
Dominic on the ceiling fan of the said room to
make it appear that it was only a case of suicide
and you have thereby caused disappearance of
evidence and gave false information regarding the
offence committed and thereby committed the
offence punishable u/s.201 of the IPC."
26. There is absolutely no charge against A5.
Even the prosecution does not have a case that A5
participated in the alleged murder or the alleged
hanging. A5 admittedly came to the house along with
others and he was not the first to reach there. There is
also no evidence led as to the body having been found
hanging. The evidence is to the contrary. There were no
signs of hanging on the body or even on the dhoti.
Sec.201 specifically speaks of the disappearance of
evidence of an offence or giving false information to
screen the offender. In the evidence led before Court,
there is nothing to indicate A5 having carried out any
disappearance of evidence of the offence. As far as false
information to screen an offender, the only allegation is
that A5 assisted the children in resisting a postmortem.
A5 was not summoned by the children nor is there any
evidence to show that he was aware of any offence having
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been committed concerning the death of the father of A1 &
A3. A5 came to the spot on information received, took the
deceased in a taxi in an attempt to give him medical care
and being convinced that he is dead, the body was brought
back home.
27. Of course, he actively resisted an attempt
to carry out a postmortem at the request of the children.
Considering the overall circumstances and also the stigma
attached to suicide, it was only natural that the
children resisted a postmortem. They wanted the public to
believe that their father had died of natural causes,
which cannot by itself raise a suspicion of their father
having been murdered by them. A5 admittedly is a person
with political affiliation and also some clout in the
locality, who would have normally assisted the children
of the deceased, his close relatives. The allegation of
two opinions surfacing about postmortem has not been
proved conclusively. The very person who is said to have
raised such a request turned hostile and denied having
raised any such dispute. A5 cannot be found to have any
knowledge about any crime having been committed against
the deceased. The fact that an unnatural death occurred
and A5, along with the children spoke against a
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postmortem alone cannot constitute an offence under
Section 201 as held in Dinesh Kumar Kalidas Patel &
Suleman Rahiman Mulani (supra). We find A5 also entitled
for an acquittal without any blemish.
We desist from making any comments on the
judgment under appeal but for saying that the conclusions
at every point are based on surmises and conjectures and
the words employed though exotic; often grossly out of
context. We direct the Registry to forward a copy of the
appellate judgment to the Officer, if still in service
for future guidance. The appeals are allowed and the
accused shall be released forthwith, if they are in
custody and if they are not wanted in any other case. We
are told that they are on parole. In such circumstances,
any security bond for their appearance before the
Superintendent of Prisons shall stand cancelled.
Sd/-
K.Vinod Chandran
Judge
Sd/-
Ziyad Rahman A.A.
Judge
vku/sp.
