Kerala High Court
Sajitha vs State Of Kerala on 25 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:64376
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 25TH DAY OF AUGUST 2025 / 3RD BHADRA, 1947
CRL.A NO. 491 OF 2019
CRIME NO.2171/2011 OF Thrikkakara Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED 08.02.2019 IN SC
NO.413 OF 2014 OF ADDITIONAL DISTRICT COURT & MOTOR ACCIDENT
CLAIMS TRIBUNAL/RENT CONTROL APPELLATE AUTHORITY, NORTH
PARAVUR ARISING OUT OF THE ORDER/JUDGMENT DATED IN CP NO.33
OF 2013 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALUVA
APPELLANT:
SAJITHA, AGED 39 YEARS, W/O. PAUL VARGHESE,
KOCHERIYIL HOUSE, MANAKKAKADAVU BHAGOM, THENGOD
KARA, KAKKANAD VILLAGE, ERNAKULAM DISTRICT.
BY ADV SRI.G.PRIYADARSAN THAMPI
RESPONDENTS:
STATE OF KERALA REPRESENTING SUB INSPECTOR OF
POLICE, THRIKKAKARA POLICE STATION, ERNAKULAM
DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM 682 031.
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P.P; T.R RENJITH
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING
ON 11.08.2025, ALONG WITH CRL.A.716/2020, THE COURT ON
25.08.2025 DAY DELIVERED THE FOLLOWING:
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
MONDAY, THE 25TH DAY OF AUGUST 2025 / 3RD BHADRA, 1947
CRL.A NO. 716 OF 2020
CRIME NO.2171/2011 OF Thrikkakara Police Station,
Ernakulam
AGAINST THE ORDER/JUDGMENT DATED 08.02.2019 IN SC
NO.413 OF 2014 OF ADDITIONAL DISTRICT COURT & MOTOR
ACCIDENT CLAIMS TRIBUNAL/RENT CONTROL APPELLATE
AUTHORITY, NORTH PARAVUR ARISING OUT OF THE
ORDER/JUDGMENT DATED IN CP NO.33 OF 2013 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -I, ALUVA
APPELLANT:
STATE OF KERALA
REPRESENTED BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY PUBLIC PROSECUTOR SRI. T.R. RENJITH
RESPONDENTS:
1 SAJITHA, W/O. PAUL VARGHESE, AGED 41,
KOCHERIYIL HOUSE, MANAKKADAVU BHAGOM,
THENGOD KARA, KAKKANAD VILLAGE, ERNAKULAM
DISTRICT-682030.
2 TISSON KURUVILLA, D/O. ALIAS, AGED 40,
PAMBADY KANDATHIL HOUSE, PUTHENPURAM BHAGOM,
PAMBADI VILLAGE, KOTTAYAM-686502.
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BY ADV SRI.G.PRIYADARSAN THAMPI R1
ADV. SRI. K.V. JAYADEEP MENON STATE BRIEF R2
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 11.08.2025, ALONG WITH CRL.A.491/2019, THE COURT ON
25.08.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
Crl.Appeal No.491/2019 and Crl.Appeal No.716/2020 arise
out of the judgment in Sessions Case No. 413/2014 on the file of
the Additional Sessions Court, North Paravur. Out of the said
appeals, Crl.Appeal No.491/2019 is one filed by the 1st accused in
the above-said Sessions case, challenging the judgment of
conviction and order of sentence passed against her for an offence
punishable under Section 302 of the Indian Penal Code, whereas,
Crl.Appeal No. 716/2020 is an appeal filed by the State under
Section 378(1)(b) of the Code of Criminal Procedure, challenging
the order of acquittal of the 2nd accused in the said Sessions case.
2. The prosecution case in brief is as follows:-
The 1st accused, who is the wife of the deceased Paul
Varghese @ Kuttan, was maintaining an illicit relationship with the
2nd accused. Believing that the husband of the 1st accused would
be a hindrance to continue the said relationship, both the accused
together hatched a criminal conspiracy to murder Paul Varghese.
In pursuance of the said conspiracy, the 2nd accused came to the
house of the 1st accused and concealed himself in one of the rooms
of the said house as arranged by the 1st accused. Thereafter, at
around 10 p.m., when Paul Varghese returned home, the 1st
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accused mixed powdered sleeping pills in the food and served the
same to him. However, realising that the overdose of the sleeping
pills might not be sufficient to cause death of Paul Varghese, in the
early morning of of 23.12.2011 at 2.00 a.m., while Paul Varghese
was in deep sleep, the 1st accused wrapped a towel around his
neck and the 2nd accused tightened the said towel forcefully and in
the meantime, the 2nd accused pressed a pillow on his face and
caused suffocation and thereby committed murder of Paul
Varghese. Thus, the accused are alleged to have committed the
offences punishable under Sections 120B and 302 of the Indian
Penal Code.
3. On completion of the investigation of this case, the final
report was submitted before the Judicial First Class Magistrate
Court-I, Aluva. Being satisfied that the case was one triable
exclusively by the Court of Session, the learned Magistrate, after
complying with all the necessary formalities, committed the case to
the Court of Session, Ernakulam, under Section 209 of the Criminal
Procedure Code. The learned Sessions Judge, having taken
cognizance of the offences, made over the case for trial and
disposal to the Additional Sessions Court, North Paravur. On
appearance of the accused before the trial court, the learned
Additional Sessions Judge, after hearing both sides under section
227 of Cr.P.C. and upon a perusal of the records, framed a written
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charge against the accused for offences punishable under Sections
120 B and 302 r/w 34 of IPC. When the charge was read over and
explained to the accused, both of them pleaded not guilty and
claimed to be tried.
4. During the trial, from the side of the prosecution, PW1
to PW27 were examined and marked Exts.P1 to P21. MO1 series to
MO15 were exhibited and identified. After the completion of the
prosecution evidence, the accused were questioned under Section
313 of Cr.P.C., during which both of them denied all the
incriminating materials brought out in evidence against them.
Thereafter, both sides were heard under Section 232 of Cr.P.C., and
as it was not a fit case to acquit under the said provision, the
accused were directed to enter on their defence and to adduce any
evidence that they may have in support thereof. However, no
evidence whatsoever has been produced from the side of the
accused. Thereafter, both sides were heard in detail, and finally,
the learned Additional Sessions Judge found the 2nd accused not
guilty of the offences punishable under Sections 120B and 302 of
IPC, and he was acquitted under Section 235(1) of Cr.P.C. The 1st
accused was also found not guilty of the offence punishable under
Section 120B of IPC and she was acquitted on the said charge.
However, the 1st accused was found guilty of the offence
punishable under Section 302 IPC, and she was convicted and
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sentenced to undergo imprisonment for life. Aggrieved by the said
finding of guilt, conviction, and the order of sentence passed, the
1st accused has come up with Crl. Appeal No. 491/2019. Similarly,
challenging the order of acquittal passed in favour of the 2nd
accused, the State has preferred Crl.Appeal No.716/2020.
5. We heard G. Priyadarsan Thampi, the learned counsel for
the appellant in Crl.Appeal No.491/2019 and Sri. Renjith, the
learned Senior Public Prosecutor, who appeared for the respondent
in the said Crl.Appeal as well as for the appellant in Crl.Appeal
No.716/2020. We also heard Sri. K.V. Jayadeep Menon, the State
Brief for the respondent in Crl.Appeal No.716/2020.
6. This is a case where a wife, along with her paramour,
allegedly murdered her husband to eliminate the obstacle to their
illicit relationship. As evident from the records, this case was
originally registered under Section 174 of the Cr.P.C. as an
unnatural death. Subsequently, following the leads received in the
investigation, offences under Sections 120B and 302 r/w 34 IPC
were incorporated in this case after deleting Section 174 of the Cr.
P.C. As this case lacks direct evidence, the prosecution hinges on
circumstantial evidence to prove the charges levelled against the
accused.
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7. The law was set in motion in this case on the strength of
the FIS given by a close relative and neighbour of the deceased,
Paul Varghese @ Kuttan, to the Police. When the first informant
was examined as PW1, he deposed that the deceased in this case is
his paternal cousin. According to him, in the early morning of
23.12.2011, the 1st accused, who is the wife of the deceased,
contacted him over the phone and informed him that Kuttan, the
deceased in this case, was not responding to her calls. She also
asked him to come quickly. Then he, along with his wife, rushed to
the house of Kuttan. Upon arrival, he found Kuttan lying on a bed,
covered with a blanket. Though he removed the blanket and called
Kuttan, he remained motionless. Immediately, he contacted the
brother-in-law of the deceased, who arrived with a vehicle.
Thereafter, he, along with the brother-in-law of Kuttan, took Paul
Varghese to Samaritan Hospital, Pazhanganad. After examining
Kuttan, the Doctor declared Kuttan's death. The Doctor further
informed that a ligature mark was found on the neck of the
deceased, and therefore, the dead body would not be released
soon. Consequently, he returned to the house of Kuttan and asked
the 1st accused about the mark found on the deceased's neck. In
response, she stated that it was caused by a helmet. Thereafter, he
went to the Police Station and lodged Ext.P1 statement based on
which the initial investigation commenced. Apart from the
deceased, his mother, his wife (1st accused), and his two children
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were residing in the house of the deceased. However, on the
alleged date of the incident, the mother of the deceased was not
present in the home. After receiving the phone call from the wife of
the deceased, when he reached the house of the deceased, the 1st
accused alone was in the said house. Both the children of the
deceased were asleep at that time.
8. Another neighbour of the deceased was examined as
PW2. He deposed that on 23.12.2011 at 3.00 a.m. PW1, his
neighbour, contacted him over the phone and told him that Paul
Varghese, the deceased in this case, was lying motionless. Upon
hearing this, he, along with his son, rushed to the house and found
Paul Varghese lying motionless in his house. There was no pulse
when he checked. Thereafter, he, along with others, took Paul
Varghese to the hospital.
9. When the brother-in-law of the deceased was examined as
PW3, he deposed that the deceased Kuttan was his wife's brother.
On the date of the incident, apart from the deceased, his wife and
two children were in the house. The mother of the deceased, who
is his wife's mother, was also in his house. On 23.12.2011, the wife
of PW1 telephoned and informed him that Kuttan was lying
motionless and not responding to her call. Hence, he, along with
his wife, rushed to the house of Kuttan in his friend's vehicle. On
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arrival, he found the wife of Kuttan, the 1st accused, sitting on a
stool inside the kitchen. Kuttan was found lying in the bedroom.
Though he called Kuttan, he did not respond. Hence, he, along with
others, took Kuttan to the hospital in the vehicle in which he came.
PW3 also stated that on the previous night of the incident, at 10.00
p.m., Kuttan had visited his house to deliver medicine for his
mother, and returned by 10.30 p.m. PW3 further deposed that
when he found Kuttan lying motionless in the house and suggested
taking him to the hospital, the 1st accused told that there was no
purpose in taking Kuttan to the hospital. According to PW3, after
examining Kuttan at the hospital, the Doctor noted a ligature mark
on the neck of Kuttan and expressed a suspicion that it could be a
case of murder. However, during the cross-examination, PW3
admitted that he did not tell the Police that when he suggested
taking the deceased to the hospital, the accused responded that
there was no purpose in taking Kuttan to the hospital.
10. When the wife of PW3, who had accompanied PW3 to
the house of the deceased, was examined as PW4, she also deposed
in a similar line as spoken by PW3. Notably, in the chief
examination, she deposed that when she enquired with the 1st
accused about the ligature mark noted by the Doctor, the first
accused said that the injury was sustained by the strap of a helmet.
Moreover, PW4 further deposed that the mother of the 1st accused,
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who came to the house after the incident told her that the 1st
accused had stated that the deceased was found hanging in the
window and that she had cut the rope with which the deceased was
hanging, laid him on a cot, covered him with a blanket and
thereafter, burned the rope. However, during cross-examination,
PW4 admitted that at the time when she had given statement to the
Police, she did not state to the Police that the mark found on the
neck of the deceased was caused by the strap of a helmet.
Similarly, PW4 deposed that she had not stated to the Police that
the mother of the 1st accused had told her that the deceased was
found hanging in the window of the house, and that the 1st accused
had cut the rope and laid the deceased on a cot.
11. PW6 is a crucial witness examined by the prosecution.
On examination before the court, PW6 deposed that the deceased
is her uncle and the 1st accused is her uncle's wife. During the
period of the incident in this case, PW6 was working at Co-
operative Hospital, Kakkanad. In the month of October 2011, the
1st accused asked her to arrange a SIM card. Accordingly, PW6
procured an Idea mobile SIM card in her name and handed it over
to the 1st accused. The number of the said SIM card was
9562560946. Though the said SIM card was subscribed in her
name, the same was used by the 1st accused.
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12. Another crucial witness examined by the prosecution is
PW10. He deposed that he is a Taxi driver by profession and
resides at Pambadi near Kottayam. He has acquaintance with the
2nd accused, who is a friend of his friend Renjith. The 2nd accused
used to hire his vehicles for trips. On two occasions, the 2nd
accused hired his vehicle and, as directed by the accused, he took
the 2nd accused near a Panchayat well located near Vegaland road
in his vehicle. From there, as told by the 2nd accused, he took him
near a paddy field. When reaching there, the accused left on foot,
stating that he needed to go to a location that was inaccessible by
vehicle and asking PW10 to wait there after having tea from any
nearby tea shop. On both the said occasions, the 2nd accused came
back after a while and got into the car, and PW10 dropped him
back as directed. While so, on 19.12.2011, the 2nd accused
contacted over the phone and told him that he, along with his
family, was planning a trip to Velankanni and accordingly asked
PW10 to come with his car at Kaloor on 22.12.2011 at 3.00 a.m. On
22.12.2011, on the evening, the 2nd accused again contacted him
and asked him to come near the Kakkanad signal. Accordingly,
when he was proceeding to Kakkanad signal, at around 2.30 a.m.,
the 2nd accused asked him to reach a bus stop near Vegaland
Road. As asked by the 2nd accused when he reached Vegaland
Road, the 2nd accused was present there holding a plastic cover in
his hand. Thereafter, the 2nd accused entered the car. When the
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car reached near Vettikkad Mukku, the accused took a towel and
put it on the dashboard of the car. Subsequently, on reaching the
Vettikkadu bridge, the 2nd accused took the towel from the
dashboard and threw it into the river. When he asked about this
act, the 2nd accused said that, as he had been at Velankanni for the
last two days, the towel had become dirty and that is why he
disposed of it. Thereafter, he dropped the 2nd accused at his house
at Pampadi. On 24.12.2011, the accused again contacted him over
the phone and asked him to come with his vehicle to attend a
funeral ceremony at Kakkanad. The accused also asked him to
purchase a wreath on the way. Hence, PW10 reached the 2nd
accused's house with a wreath, after which the 2nd accused and
his mother entered the vehicle, and he dropped both of them in the
compound of a church on Vegaland Road to attend a funeral
function. Thereafter, 2nd accused placed the wreath on the dead
body.
13. As already stated, this is a case in which there is no
direct evidence to prove the occurrence; instead, the prosecution
relies on circumstantial evidence to establish the accused's guilt.
Before delving into the details of the circumstantial evidence
presented in this case, it is essential to examine the principles and
guidelines governing the evaluation of such evidence.
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14. In Sarad Birdhichand Sarda v. State of Maharashtra [AIR
1984 SC 1622], the Apex Court discussed the nature, character,
and essential proof required in a criminal case which rests on
circumstantial evidence alone and held as under:
(i) The circumstances from which the conclusion of guilt is to be
drawn should be fully established;
(ii) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty;
(iii) The circumstances should be of a conclusive nature and
tendency;
(iv) They should exclude every possible hypothesis except the
one to be proved; and
(v) 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.
15. A similar view has been reiterated by the Apex Court in
Bodh Raj alias Bodha v. State of Jammu and Kashmir [AIR 2002 SC
3164], State of Uttarpradesh v. Satish [AIR 2005 SC 1000], and
Subramaniam v. State of Tamilnadu [(2009) 14 SCC 415].
16. In cases built upon circumstantial evidence, a complete
and unbroken chain of evidence is a requisite. This chain must
inevitably lead to the conclusion that the accused, and none other
than, could have committed the offence. In other words, to sustain
a conviction, circumstantial evidence must be comprehensive and
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incapable of explanation of any hypothesis other than the guilt of
the accused. Thus, such evidence must not only be consistent with
the accused's guilt but also inconsistent with his innocence.
17. Keeping in mind the above principles, the crucial question
in the case at hand is whether the prosecution has fully and
exhaustively established the circumstances relied upon to prove
the charge levelled against the accused. Furthermore, it must be
ascertained whether these circumstances lead unmistakably to the
conclusion of the accused's guilt, to the exclusion of any other
plausible explanation, including innocence. In deciding the said
question, the primary aspect that needs to be considered is what is
the nature of the death of the deceased. Only if it is a homicidal
one, there is a purpose in entering into other discussions,
especially when the offence alleged in this case is under Section
302 of the IPC.
18. The evidence of PW1 and other prosecution witnesses
who allegedly rushed to the house of the 1st accused upon knowing
about the incident reveals that, upon arrival, they found the
deceased lying motionless in a cot inside the bedroom of the said
house. Their evidence collectively shows that, after reaching the
said house, they took the deceased to Samaritan Hospital,
Pazhanganad. The Doctor at the said hospital who examined the
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deceased and declared him dead was examined as PW23. The
evidence of PW23 reveals that it was on 23.12.2011 at 3.20 a.m.,
the deceased was brought dead to the hospital. On unequivocal
terms, PW23 deposed that on examination, he noted a mark on the
neck of the deceased and noted that the face appeared bluish.
Hence, he felt some suspicion regarding the cause of death and
accordingly intimated the matter to the Police. However, he
admitted that the records with respect to the examination of the
deceased were prepared by another Doctor, and he is now out of
station. The said record is marked as Ext.X1.
19. Moreover, when the Sub Inspector of Police, Thrikkakkara
Police Station, who conducted the inquest and prepared Ext.P3
inquest report, was examined as PW21, he deposed that upon
examining the dead body, he noted a ligature mark on the neck of
the deceased. PW8, an attestor to the said inquest report, also
testified about such a mark on the neck of the deceased. He further
stated that blood and watery fluid were oozing from the ear of the
deceased. Of course, the evidence of these witnesses taken
together strongly supports the conclusion that the death of the
deceased was homicidal in nature.
20. Likewise, it is equally important to consider the evidence
of the Doctor who conducted the autopsy. PW19, the Doctor who
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conducted the postmortem examination, deposed that it was on
23.12.2011 at 11.40 a.m., he conducted the said examination. The
postmortem certificate prepared by him was marked as Ext.P12.
Referring to Ext.P12, the Doctor deposed that he noted the
following antemortem injuries in the postmortem examination;
1. Contused abrasion 13 cm long (2-2.5 cm wide) on the front and right
side of neck. It was 2.5 cm outer to midline below adams apple on
right side and 4 cm above sternal notch and 7.5 cm below right jaw
bone middle and terminating 5 cm below angle of jaw bone right side.
The injury was not prominent for an area 2 cm on front of neck and
1.5 cm on right side. The above areas showed multiple spotted
abrasions.
2. Contusion 1.5x2 cm on front of neck right side 3 cm outer to midline
and 0.5 cm below injury no. 1.
3. Abrasion 1x0.5 cm over adam apple.
4. Contusion 7x2 cm on root of neck left side,8 cm below angle of jaw
5. Multiple contusions on both upper eyelids
6. Contusion 3x2 cm on the right malar eminence
7. Contusion 1x1 cm on bridge of nose and Contusion 2x2 cm on left
malar eminence.
21. The Doctor opined that the death was caused due to the
constrictive force applied to the neck and by smothering. He
further clarified that the deceased died due to the combined effect
of these two factors. When the Doctor was confronted with the
MO14 towel, he further stated that the constrictive force can be
caused by using a towel like MO14. Likewise, he further opined
that smothering can be caused by using a pillow like MO8. A
conjoint reading of the evidence of the Doctor and Ext.P12
postmortem certificate unerringly shows that the death of Paul
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Varghese, the deceased in this case, was homicidal in nature.
22. Now, reverting to the circumstances relied upon by the
prosecution to prove the guilt of the accused, it is to be noted that
the first circumstance pressed into service in the case at hand is
that both the accused had a strong motive to kill the deceased.
The prosecution alleges that the 1st accused, who is the wife of the
deceased, was maintaining an illicit relationship with the 2nd
accused, and, believing that the husband of the 1st accused would
be a hindrance to continuing their illicit relationship, both the
accused conspired to commit murder of the deceased and
accordingly executed it. While considering the question whether
the prosecution succeeded in proving a motive, it is to be noted
that although several witnesses were examined from the side of the
prosecution, including neighbours and relatives, none of them
deposed that they were aware of such a relationship between both
the accused. We are not oblivious that such illicit relationships are
developed and maintained in secrecy, and hence, it is not always
prudent to look for convincing evidence regarding such
relationships. However, when a motive is alleged, the prosecution
bears the burden of proving it. This obligation cannot be excused
or sidestepped by claiming that the secretive nature of the alleged
relationship makes evidence difficult to obtain.
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23. One of the evidence which the prosecution relies on to
prove the alleged motive is the testimony of PW10, a taxi driver
who allegedly took the 2nd accused to the house of the 1st accused
on two occasions prior to the incident in this case. However, during
the examination before the court, what PW10 deposed is that on
the said two occasions, the 2nd accused hired his car and, as
directed by him, he took the 2nd accused in his car near a
panchayat well located at Veegaland Road. From there, as
instructed by the 2nd accused, he took him near a paddy field, and
on reaching there, the 2nd accused alighted from the car and left
on foot, stating that he needed to go to a place that was
inaccessible by vehicle. However, PW10 in his deposition did not
state that it was to the house of the 1st accused, the 2nd accused
went on the said two occasions. More pertinently, no attempt was
made from the side of the prosecution to establish that the paddy
field where the 2nd accused was dropped by PW10 is situated near
or around the house of the 1st accused. Therefore, the said feeble
evidence of PW10 will in no way help the prosecution to
substantiate the allegation that the 2nd accused maintained an
illicit relationship with the 1st accused. Moreover, it is an
undisputed fact that during the period of occurrence in this case,
the mother of the deceased, as well as the children of the 1st
accused were residing together in the same house with the 1st
accused. However, no attempt, whatsoever, was made from the side
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of the prosecution to examine either the mother of the deceased or
his children to prove that the 2nd accused was a frequent visitor in
the said house.
24. In order to prove the alleged relationship, the prosecution
made an attempt to establish that there were frequent phone calls
between the 1st and the 2nd accused. It is alleged that during the
relevant period, the 1st accused was using mobile phone nos.
9562560946 and 9747888776, while the 2nd accused was using
the mobile number 9747883662. In order to prove the alleged
frequent phone calls, the call data records of these mobile phones
were produced and marked in evidence as Ext.P15 series. The
Nodal Officer, who originally issued the call data records along
with a certification under Section 65B of the Indian Evidence Act,
was not examined as a witness in this case. However, in his stead,
another Nodal Officer, Idea Mobile Company, Kerala Circle, was
examined as PW24. During examination, PW24 deposed that the
Nodal Officer who originally retrieved the call data and issued
Ext.P15 series is one C.Ramachandran, and he is presently working
in Delhi. According to PW24, he had an acquaintance with the
signature of said Ramachandran and identified his signature in
Ext.P15. As Ext.P15 series are documents issued in discharge of
official duty, there is nothing wrong in placing reliance on the
same, particularly in view of Section 32(2) of the Indian Evidence
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Act.
25. However, whether the said call data records, as well as
the customer application details will help the prosecution to
connect the accused with the above-said phone number is a matter
of evidence. From the materials, it is revealed that out of the two
phone numbers allegedly used by the 1st accused, the mobile
phone No.9562560946 is admittedly subscribed in the name of
PW6, the niece of the deceased. During examination before the
court, PW6, the subscriber of the said phone number, deposed that
it was at the request of the 1st accused that she had taken a SIM
card with that number in her name and handed it over to the 1st
accused, and the 1st accused was using it thereafter. At this
juncture, it is pertinent to note that the said SIM card is not seized
in this case. Moreover, no explanation has been offered by the
prosecution for its non-seizure. Similarly, the mobile phone handset
allegedly used by the 1st accused during the relevant period is also
not recovered in this case, and no plausible explanation whatsoever
has been offered for the non-recovery of the same. The non-
recovery of the mobile handset as well as the SIM card from the
possession of the 1st accused creates a serious dent in the
evidence regarding the call records adduced in this case,
particularly when the alleged SIM card was registered in the name
of PW6.
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26. Another phone number allegedly used by the 1st accused
is 9747888776. According to the prosecution, although the said
number was subscribed in the name of the 2nd accused, he had
handed it over to the 1st accused to facilitate the communication
between them. The call detail reports of the said mobile phone
number, as well as mobile phone number 9747883662, the phone
number allegedly used by the 2nd accused, reveal that phone calls
were made between these two phone numbers recurrently.
However, the fact that the mobile phone No. 9747888776 is not
subscribed in the name of the 1st accused stands fully established.
Although the prosecution alleged that the said SIM card was
procured by the 2nd accused and handed over to the 1st accused,
the said SIM card was not recovered from the 1st accused. As
already stated, the handset of the 1st accused was also not seized
in this case. Therefore, we found that the allegation that mobile
phone No.9747888776 was used by the 1st accused, though it was
subscribed in the name of the 2nd accused, still remains as a mere
allegation. In short, we have no hesitation in holding that the
prosecution miserably failed in proving the motive. Undisputedly, if
the motive was proved, the same would have certainly formed a
link in the chain of circumstances in a case like this that rests on
circumstantial evidence. However, it cannot be said that proof of
motive is sine qua non in the case built upon circumstantial
evidence, particularly if there are other telling and strong
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circumstances to prove the guilt of the accused.
27. Another circumstance relied upon by the prosecution to
prove the complicity of the 1st and 2nd accused in this crime is
that immediately after the commission of the offence, the 2nd
accused contacted PW10 from the land phone of the deceased.
Relying on the said post-offence phone call, the prosecution
contended that the same would certainly reveal the fact that the
2nd accused was in the house of the deceased at the time of the
commission of the offence, along with the 1st accused. In order to
prove the same, the prosecution is mainly relying on the evidence
of PW10, who allegedly received the said phone call. It is true that
during the examination before the court, PW10 deposed that on the
evening of 22.12.2011, the 2nd accused called him over the phone
and asked him to reach Kakkanad signal. Subsequently, in the early
morning of 23.12.2011, when he was proceeding to Kakkanad
signal, at around 2.30 a.m., the 2nd accused contacted him over
the phone and asked him to reach a bus stop near Veegaland Road.
According to the prosecution, the second call was made by the 2nd
accused from the land phone number of the deceased.
28. When the Deputy General Manager of BSNL was
examined as PW17, he deposed that, as per the requisition given by
the investigating officer in this case, he had issued the call records
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of landline number 0484-2425675. The call detail records given by
him pertaining to the said landline number are marked as Ext.P11
series. From a perusal of Ext.P11 series, it is evident that a phone
call was made on 23.12.2011 at 2.15 a.m. from the said landline
number to a mobile number 9744604622, which is established to
be the number of PW10. However, referring to Ext.P11 series,
PW17 deposed that the said land phone connection was in the
name of one Benny K. Varkey, Kocheriyal House bearing
No.VIII/589. Notably, the said land phone connection is neither in
the name of the 1st accused nor in the name of her husband or his
mother, rather, it is in the name of one Benny K.Varkey. Even then,
no attempt is seen to be made by the prosecution to examine the
said Benny K. Varkey as a witness in this case. More curiously in
Ext.P2 scene mahazar, it is mentioned that the house in which the
incident in this case occurred is bearing No.VI/1141 of Thrikkakara
Gramapanchayath. However, what PW17 deposed is that the above-
said land phone connection was given in House No.VIII/589. We are
not oblivious that in the final report, it is stated that the place of
occurrence is House No.VI/1141 of Thrikkakara Panchayat, which
corresponds to House No.VIII/589 of Thrikkakara Municipality.
However, the said statement in the final report is not evidence.
Moreover, the prosecution has not examined any responsible
officer from the local authority to show that the new House
No.VIII/589 corresponding to the old House No. VI/1141, and both
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the numbers pertain to the same house. As already stated, the non-
examination of the subscriber of the said land phone number is
fatal to the prosecution in this case. Therefore, we have no
hesitation in holding that the evidence adduced by the prosecution
is not sufficient to conclude that it was from the land phone
connection allotted to the house of the deceased, the 2nd accused,
contacted PW10 after the commission of the alleged offence.
29. Another material relied on by the prosecution to prove
the complicity of the 2nd accused in the commission of the offence
is the recovery of the towel, which was allegedly used in the
commission of the offence, on the strength of the alleged disclosure
statement given by the 2nd accused. When the Circle Inspector of
Police who conducted the major chunk of the investigation in this
case was examined as PW25, he deposed that during the course of
the investigation it was revealed that immediately after the
commission of the offence, a phone call was made from the landline
number of the house where the incident in this case occurred to
the mobile number of PW10. The said phone call was at 2.15 a.m.
Later, on the investigation proceeded based on the said phone call,
it was revealed that the 1st and the 2nd accused were the
perpetrators of this crime, and both of them were arrested on
01.01.2012. According to PW25, on interrogation, the 2nd accused
made a confession statement, and in the said statement, he
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disclosed that "തോർത്തുമുണ്ട് വീട്ടിലേക്കു പോകുന്ന വഴി ഞാൻ ഒരു
പാലത്തിൽനിന്നു താഴേക്ക് എറിഞ്ഞിട്ടുണ്ട്. എന്നെ കൊണ്ടുപോയാൽ
തോർത്തുമുണ്ടെറിഞ്ഞ സ്ഥലം ഞാൻ കാണിച്ചു തരാം. ". (While going
to my house, on the way, I had thrown the towel from a bridge
towards a river, and if I am taken, I will show you the place where I
threw the towel.)
30. According to PW25, on the basis of the said disclosure
statement given by the 2nd accused and as led by him, PW25
reached the banks of the Moovattupuzha River near
Vettikkattumukku bridge. Then the 2nd accused took a towel from
a bushy area on the banks of the said river and handed it over to
PW25. According to PW25, he took the said towel into custody
after describing in Ext.P6 seizure mahazar. The relevant portion of
the disclosure statement made by the accused, recorded in Ext.P6
mahazar and proved through PW25, is marked as Ext.P6(a). During
the examination before the court, PW25 identified the said towel
and marked as MO14. However, it is pertinent to note that there is
nothing to show that MO14 is the towel used by the accused to
strangulate the deceased. The FSL report pertaining to the result
of the examination of material objects, in this case, was marked as
Ext.P21 through PW27, the Circle Inspector of Police, Kalamassery.
A perusal of the Ext.P21 report reveals that the MO14 towel, which
is shown as item No.5 in the said report, was subjected to
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examination at the biological division of FSL. When the MO14
towel (item No.5) was subjected to the benzidine test, blood was
detected. At this juncture, it is pertinent to note that even the
origin of the blood detected on MO14 was not verified in the
examination and the grouping was also not done. There is
absolutely no material to suggest that the blood detected was
human in origin. Moreover, in the report, it is stated that foreign
tissues are not detected in item No.5. Likewise, Ext.P21 FSL report
further reveals that, although the cellophane impressions taken
from the neck and hands of the deceased were examined as item
No.4(a), 4(b), and 4(c) in the forensic laboratory, fibers similar to
item No.5 (MO14 towel) were not detected in 4(a), 4(b) and 4(c).
Therefore, it is liable to be held that there is absolutely no evidence
to show that the MO14 towel is the towel used by the accused to
strangulate the deceased.
31. Moreover, the evidence of PW25, the investigating officer,
clearly reveals that he got the lead regarding the involvement of
the accused in this case on verification of the call detail records of
certain phone numbers. According to PW25, on such verification, it
was revealed that immediately after the commission of the alleged
offence, that is on 23.12.2011 at 2.15 a.m., a call was made from
the landline number of the deceased to the mobile number of
PW10. Likewise, the evidence of PW25 shows that the investigation
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with respect to the said phone call established that it was in fact,
made by the 2nd accused to the mobile phone number of PW10.
That became a key factor in proving the involvement of the 2nd
accused in this crime, and accordingly, he was arrested. The
sequence of events in the investigation narrated by PW25 that
ultimately resulted in the arrest of the accused in this case clearly
shows that it was on the basis of the information gathered from
PW10, the complicity of the 2nd accused in the commission of the
offence was revealed.
32. At this juncture, it is pertinent to note that the 1st and the
2nd accused were arrested in this case only on 01.01.2012.
Likewise, the alleged recovery of the towel used in the commission
of the offence was effected on 03.01.2012. As the involvement of
the 2nd accused was revealed mainly on the basis of a call received
by PW10, certainly, PW10 might have been interrogated by the
police prior to the arrest of the 2nd accused. Significantly, when
PW10 was examined, he deposed that it was in his presence the
2nd accused threw the towel into the river. Therefore, nobody
could be blamed if it is found that the investigating officer got
information regarding the towel from PW10 prior to the arrest of
the 2nd accused. Notably, PW25, the investigating officer, did not
depose anything about the date on which he interrogated PW10.
Moreover, a perusal of the 161 statement of PW10 reveals that the
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date on which the said statement was recorded is conspicuously
absent in it. The non-mentioning of the date in the 161 statement
of PW10 assumes much importance, particularly when the 161
statements of the other witnesses contain the date on which those
statements were recorded. Therefore, it is not digestible to believe
that the recovery of the towel was made solely on the strength of
the disclosure statement made by the 2nd accused. As per Section
27 of the Indian Evidence Act, only when a fact is discovered in
consequence of information received from the accused, so much of
such information which leads to the said discovery can be proved
against the accused. In the case at hand, it cannot be conclusively
said that the recovery was effected solely on the strength of the
information given by the 2nd accused. Consequently, the alleged
recovery of the towel will not fall under Section 27 of the Indian
Evidence Act.
33. The primary circumstance relied upon by the prosecution
to establish the 1st accused's guilt is that the deceased was last
seen in her company at the time of his death. In other words, the
deceased was last seen alive in the company of the 1st accused. We
are conscious that there is no direct evidence to show that the
deceased was found last seen alive in the company of the 1st
accused. However, a conjoint reading of the evidence and
circumstances brought out in this case unerringly points to the
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conclusion that Paul Varghese, the deceased, died while he was in
the company of the 1st accused.
34. Subsequently, the evidence of PW3, who is none other
than the brother-in-law of the deceased, shows that the mother of
the deceased, who is his wife's mother, was staying at his house on
the date of the incident. His evidence further shows that on
22.12.2011 at around 10 p.m., the deceased had visited his house
to deliver medicine for his mother and returned by 10.30 p.m.
Thereafter, in the early morning of 23.12.2011, the 1st accused
contacted him over the phone and informed him that Paul
Varghese, her husband is lying motionless and not responding to
her call.
35. Upon receiving the said phone call, PW3 rushed to the
house of Paul Varghese and found him lying motionless in a cot
inside the bedroom, while the 1st accused was seen sitting on a
stool in the kitchen. The evidence of PW1 in the above regard
remains unchallenged in the cross-examination. More importantly,
even the 1st accused does not have a case that she was not in her
house when the incident in this case occurred. From the materials
on record, it is established that the incident in this case occurred
between 10.30 p.m. on 22.12.2011 and 2.15 a.m. on 23.12.2011.
Therefore, the presence of the 1st accused with her husband in her
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house during such late hours is natural. In short, there is no
dispute that Paul Varghese died while he was in the company of the
1st accused.
36. It has also been brought out in evidence that, apart from
the deceased, the 1st accused and their minor children were
present in the house at the relevant time, and the mother of the
deceased, who usually resided there, was at her daughter's house
on the alleged date of the incident. The evidence of PW3 to this
effect also remains unchallenged in the cross-examination. More
pertinently, even the 1st accused does not have a case that, apart
from her, the deceased, and their minor children, anyone else was
present in the house during the relevant time.
37. Notably, from the evidence it is established that it was on
receiving a phone call from the 1st accused, PW1, and other
witnesses rushed to the house of the deceased and found him lying
motionless in a bed covered with a blanket. Immediately thereafter,
the deceased was taken to a hospital, where, after examination, the
Doctor reported that the deceased was brought dead. The Doctor
noted a mark on the neck of the deceased and observed that the
face of the deceased was bluish, which aroused suspicion.
Consequently, the matter was reported to the Police. The Doctor
who conducted the postmortem and issued the postmortem
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certificate categorically deposed that the death was due to the
combined effect of the constriction of the neck and smothering.
Therefore, since the 1st accused was present in the house at the
relevant time when her husband's death occurred, and as the death
has been conclusively established to be homicidal in nature the
burden lies on the 1st accused to provide a credible explanation as
to how the death took place.
38. In Ramanand v. State of Himachal Pradesh [1981 (1)
SCC 511], the Supreme Court observed as follows:
"perfect proof is seldom to be had in this imperfect world and
absolute certainty is a myth."
The concept of circumstantial evidence arises because, in
some cases, direct evidence would be lacking, and so the court has
to rely on circumstantial evidence to decide upon the matter. The
last seen theory is also rooted in this principle, for in certain cases
of homicide, when there is no eyewitness account, the fact that the
deceased was last seen alive in the company of the accused
assumes much significance. According to this theory, if a person is
last seen with the deceased just before his death or within a
reasonable period prior thereto, and if the possibility of any other
person intervening is ruled out, then a presumption can be drawn
that the person who was last seen in the company of the deceased,
is the author of the crime and thus the burden of proof shifts on
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him to negate the said presumption.
39. In State of Goa v. Sanjay Thakran [2007 (3) SCC 755] the
Supreme Court observed that:
"the circumstance of last seen together would normally be
taken into consideration for finding the accused guilty of
the offence charged with when it is established by the
prosecution that the time gap between the point of time
when the accused and the deceased were found together
alive and when the deceased was found dead is so small
that possibility of any other person being with the
deceased could completely be ruled out."
We have already found that Paul Varghese died while he
was in the company of the 1st accused. Likewise, the incident in
this case occurred within the confines of a house in the wee hours.
It was in the early morning at 2.15 a.m., the deceased was found
dead inside his bedroom. The 1st accused, being the wife of the
deceased, who was very well present in the said house during that
time, is bound to explain what transpired in this case, particularly
when she is not having a case that she was not present in the said
house during the relevant time. There is immediate proximity
between the time when the deceased and the 1st accused were
together and later when the deceased was found dead. Therefore,
the 1st accused is burdened with a duty to provide a plausible
explanation regarding the events surrounding the deceased's death
or their separation. Section 106 of the Indian Evidence Act
mandates that when any fact is especially within the knowledge of
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any person, the burden of proving that fact is upon him. Therefore,
it was imperative for the 1st accused to provide a convincing
explanation regarding the events that transpired after the
deceased was last seen alive in her company. Despite the said
overwhelming circumstance, the 1st accused failed to offer any
justifiable or convincing explanation about the incident that
occurred inside the privacy of her bedroom in the wee hours.
Therefore, we have no hesitation in holding that the proved
circumstance that the deceased was alive last in the company of
the deceased and the 1st accused failed to offer any explanation
and to discharge the burden as spelt out under Section 106 of the
Indian Evidence Act clearly points towards the guilt of the 1st
accused. When the last seen circumstance is so convincing and
reliable, there is no illegality in sustaining a conviction on the said
circumstance alone.
40. However, reverting to the allegation against the 2nd
accused, it is to be noted that he has already been acquitted by the
trial court. Hence, the presumption of innocence, which is
generally available to an accused, stands strengthened by an order
of acquittal. It is equally pertinent to note that the legal yardsticks
applicable to an appeal against acquittal are distinct from those
applicable to an appeal against conviction. Ordinarily, an appellate
court would not interfere with a judgment of acquittal unless it is
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demonstrated that the trial court's view is perverse, manifestly
illegal, or grossly unjust, and that the only possible conclusion on
the basis of the evidence on record was that the accused was guilty
of the offence alleged. Through a catena of judicial
pronouncements, it is well settled that, if two views are reasonably
possible on the basis of the evidence, and the trial court has taken
one such view leading to acquittal, the appellate court would
generally refrain from substituting its own view merely because it
might have arrived at a different conclusion. However, this
principle does not mean that the appellate court cannot reverse an
erroneous acquittal. More specifically, when the appreciation of
evidence by the trial court is patently erroneous or perverse or
runs contrary to the settled principles of law, and when the
evidence on record clearly establishes the guilt of the accused,
leaving no room for any other plausible conclusion, the appellate
court is well within its power to reverse the finding of acquittal and
convict the accused. Keeping in mind the above, it cannot be said
that the view taken by the trial court in acquitting the 2nd accused
is either impossible or perverse. Hence, the order of acquittal
passed in favour of the 2nd accused warrants no interference.
41. However, in view of the discussions made above, we
confirm the finding of guilt, conviction, and sentence passed
against the 1st accused in S.C. No.413/2014 on the file of the
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Additional Sessions Court, North Paravur.
Resultantly, both the appeals fail and are accordingly
dismissed.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS/ncd
