Kerala High Court
State Represented By The Public ... vs Binu@Binil Kumar on 28 February, 2025
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
2025:KER:24009
Crl.A. No. 1568 of 2019
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946
CRL.A NO. 1568 OF 2019
CRIME NO.1213/2013 OF Pudukkad Police Station, Thrissur
AGAINST THE ORDER/JUDGMENT DATED 09.12.2016 IN SC NO.13 OF 2014
OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA ARISING OUT OF THE
ORDER/JUDGMENT DATED IN CP NO.112 OF 2013 OF JUDICIAL MAGISTRATE OF
FIRST CLASS ,IRINJALAKUDA
APPELLANT/COMPLAINANT:
STATE REPRESENTED BY THE PUBLIC PROSECUTOR
BY SMT.AMBIKA DEVI S, SPL.G.P. (ATROCITIES AGAINST WOMEN
AND CHILDREN AND WELFARE OF W AND C)(GP-38)
RESPONDENT/ACCUSED:
BINU @ BINIL KUMAR
S/O.KOCHUNNI, KUNNATHUPARAMBIL HOUSE, CHITISSERRY DESOM,
NENMANIKKARA VILLAGE.
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 28.02.2025,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Crl.A. No. 1568 of 2019
2
JUDGMENT
P.M. Manoj, J.
Appeal is preferred against the acquittal of the accused in Crime
No.1213/2013 of Pudukkad Police Station under Section 302 IPC. The
appeal is preferred by the State against the judgment dated
09.12.2016 of the Additional Sessions Judge, Irinjalakkuda, in SC
No.13/2014, wherein the accused was acquitted of the offence charged
against him.
2. The appellant is the complainant/State and the accused is the
respondent.
3. The prosecution case is that the respondent and the deceased
are husband and wife. On account of a marital dispute, the respondent
killed his wife, Sobha, by strangulating her using a bath towel. The
incident is alleged to have occurred on 30.08.2013 at the house bearing
door No.XIII/63 of Nenmanikkara Panchayat where they lived along
with their children.
4. Charge was framed against the respondent under Section 302
IPC. Chargesheet was filed before the Judicial First Class Magistrate
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Court, Irinjalakkuda. After taking cognizance and scrutinising the
presence of the accused and after complying with the formalities under
Section 207 Cr.P.C, the learned Magistrate committed the case to the
Principal District and Sessions Court, Thrissur under Section 209 Cr.P.C
as it was triable exclusively by a court of Sessions. Later, it was made
over to the Additional Sessions Court, Irinjalakkuda.
5. The charge framed under Section 302 IPC was read over and
explained to the accused and he pleaded not guilty. Accordingly, the
matter was taken for trial. During the trial, the prosecution witnesses
1 to 15 were examined. Exts.P1 to P18 and MOs 1 to 13 were marked
from the side of the Prosecution. DW1 was examined and Ext.D1 was
marked from the side of the defence. A statement was recorded under
Section 313(1)(b) Cr.P.C. The respondent denied the charges and the
circumstances under which the crime was registered. Thereafter, the
counsel for the accused as well as the learned Public Prosecutor were
heard. On a finding that there is no ground for acquittal under Section
232, the accused was given an opportunity to give evidence. The
accused was examined as DW1 and marked Ext.D1.
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6. On considering the arguments advanced, three questions were
framed, which read as follows :
"1. Whether the prosecution has proved that the accused had
committed the murder of the deceased by strangulating her by MO6
bath towel ?
2. Whether the prosecution has proved that the accused
committed an offence punishable under Section 302 IPC ?
3. What is the proper punishment ?"
After detailed examination of the arguments, the depositions of
the both prosecution as well as defence witnesses and the exhibits
produced by both sides, it was held that the prosecution had failed to
prove that the accused had committed an offence punishable under
Section 302 IPC. Accordingly, the respondent was acquitted of the
charges under Section 302 IPC.
7. The primary consideration for the appellate court while
considering an appeal against acquittal should be compliance with the
formalities described hereunder.
8. The appellate court should not ordinarily set aside a judgment
of acquittal in a case where two views are possible, though the view of
the appellate court may be the more probable one. While dealing with
the judgment of acquittal, the appellate court must consider the entire
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evidence on record to arrive at a finding as to whether the view of the
trial court was perverse or otherwise unsustainable. The appellate court
is entitled to consider whether, in arriving at a finding of facts, the trial
court failed to take into consideration the admissible evidence and/or
had taken into consideration the evidence brought on record contrary
to law. Similarly, wrong placing of burden of proof may also be a subject
matter of scrutiny by the appellate court.
9. The Apex Court has summarised the issue to the effect that in
exceptional cases, where there are compelling circumstances and the
judgment under appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The appellate court should bear
in mind the presumption of innocence of the accused and that the trial
court's acquittal bolsters the presumption of his innocence.
Interference in a routine manner where the other view is possible
should be avoided, unless there are good reasons for interference. The
aforementioned guidelines are issued in Babu v. State of Kerala
[(2010) 9 SCC 189]. This position has been reiterated in S.R.Tewari
v. Union of India and another [(2013) 6 SCC 602].
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10. Thereby it can be presumed that the High Court can interfere
with the order of acquittal by the trial court when the finding of facts
recorded by the court can be held to be perverse. For treating a finding
as perverse, it is to be examined, whether such findings have been
arrived at by ignoring or excluding relevant materials or by taking into
consideration irrelevant/inadmissible materials. Such findings may
also be said to be perverse, if they are against the weight of the
evidence or if the findings so outrageously defies logic as to suffer from
the vice of irrationality. This position has been clarified in Kuldeep
Singh v. Commissioner of Police [(1999) 2 SCC 10] wherein it was
held that if a decision is arrived on the basis of no evidence or
thoroughly unreliable evidence, no reasonable person would act upon
it, the order would be perverse. But, if there is some evidence on
record that is acceptable and that could be relied upon, the conviction
could not be treated as perverse, and the findings would not be
interfered with. This position has been adopted in S.R.Tewari supra
and Babu supra also.
11. In the case on hand, the law was set in motion on the
complaint lodged by PW1, the mother of the deceased, who is the
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person who found the body for the first time. On hearing her alas, PW4
and PW5 came to the scene. Their words reveal that the
respondent/accused left the premises on 30.08.2013 at 2 p.m. on a
motorcycle and that the respondent had a quarrel with the deceased
on the same day. From the words of PW1, she was not available in the
scene as she had left the house on 28.08.2013 for her work. After
work, she came to the house of the couple on 31.08.2013 around
5.30.p.m. When she reached home, she found that the house was
locked from outside. She opened the house using a key kept in her
possession. When entering the house, on examination, it was found
the food items prepared the day before were not consumed. Later, on
a further search, it was found that the body of the deceased was lying
beneath the cot. This testimony of PW1 was supported by the evidence
of PWs 4 and 5. However, no material evidence is brought by any of
these prosecution witnesses to show that the respondent has
committed the offence under Section 302 IPC. There is no eyewitness
to the alleged offence. Though PW4, the mother of PW5, deposed that
on 30.08.2013, she heard some noise from the couple's house, on a
presumption that it was only a family dispute, she did not interfere.
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By 2 p.m. she saw the respondent leaving on a bike. Only on hearing
the cry of PW1, she came to the scene and found that the deceased
was lying beneath the cot. PW5 deposed that she neither witnessed
nor heard the quarrel between the accused and the deceased. She did
not even witness the accused leaving the house. But she also rushed
to the spot on hearing PW1's cry.
12. On the other hand, PW3, the daughter of the respondent and
the deceased, who is studying in 10th standard, deposed that on the
date of the incident, the respondent came to her school at 1.30 p.m.
and informed her that her mother had a quarrel with him and she left
to Tamil Nadu. The respondent also asked her to communicate the said
fact to her brother. Thereafter, the respondent took her and her brother
to his father's house at Choondal. On the next day, they went to
Pollachi. She also deposed that their parents used to quarrel with each
other regularly. She also deposed that her mother was under the
hallucination that some evil spirit had entered her body.
13. As there is no direct evidence of the respondent's involvement
in the deceased's death and contradictions between the time deposed
by PW4 and PW3, the time stated by PW4 cannot be taken to apply to
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the last seen theory or the circumstantial evidence.
14. This position is considered by the Apex Court in Nizam and
Another v. State of Rajasthan [(2016) 1 SCC 550]
"The courts below convicted the appellants on the evidence of PWs 1 and 2
that the deceased was last seen alive with the appellants on 23-1-2001.
Undoubtedly, the "last seen theory" is an important link in the chain of
circumstances that would point towards the guilt of the accused with some
certainty. The "last seen theory" holds the courts to shift the burden of proof
to the accused and the accused to offer a reasonable explanation as to the cause
of death of the deceased. It is well settled by this Court that it is not prudent to
base the conviction solely on "last seen theory". "Last seen theory" should be
applied taking into consideration the case of the prosecution in its entirety and
keeping in mind the circumstances that precede and follow the point of being
so last seen."
15. Similarly, the last seen theory is not applicable in cases where
it was quite natural for the deceased to be with the accused at the
material time. Other possibilities must be excluded before an adverse
inference can be drawn. This position is clarified by the Supreme Court
in Sarad Birdhichand Sarda v. State of Maharashtra [(1984) 4
SCC 116]. This circumstance is squarely applicable in this case
because the respondent and the deceased are husband and wife. The
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last seen theory cannot be applied straight away as it is quite natural
for the deceased to be with the accused/respondent being husband and
wife.
16. The last seen theory is already considered and examined by
the trial court on the basis of reported decisions Rambrakash @ Jalim
v. State of Chathisgarh [ AIE 2016 SC 2381] Krishnan v. State of
Tamil Nadu [(2014) 12 SCC 279], Arjun Marik v. State of Bihar
[1994 Supp (2) SCC 372], Jaswant Gir v. State of Punjab [(2005)
12 SCC 438] and Kanhaiya Lal v. State of Rajasthan [(2014) 4 SCC
415] and came to a conclusion that conviction cannot be based only on
the circumstance of last seen together and also considered the time
gap between the point of time when the accused and the deceased
were last seen together on the basis of the evidence given by the
prosecution witnesses, PWs 4 and 3, since PW3 stated that the
respondent reached her school by 1.30 p.m. On the other hand, PW4
found the respondent leaving the premises by 2 p.m. Then the trial
court considered the scientific report of the time of death. The body
was found dead on 31.08.2013 by 5.30. p.m. and the postmortem
report by PW14 revealed that the death occurred between 36 to 42
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hours prior to the postmortem. The postmortem was conducted
between 2.30 p.m. to 5 p.m. on 01.09.2013. Thereby the time of death
cannot be corroborated with the alleged time of last seen together
theory.
17. Regarding the scientific evidence with respect to the cause of
death of the deceased, the trial court examined it based on
authoritative text as well as expert opinion. Thereafter the trial court
considered the veracity of such evidence at length. Though it is
concluded that the deceased died on account of ligature strangulation,
the role of the accused in the above act could not be proved beyond
reasonable doubt. There is no direct evidence in this regard. The
prosecution relied heavily on the circumstantial evidence. They tried
to establish that the relationship between the deceased and the
respondent was not cordial.
18. Further, the prosecution tried to establish that the
respondent killed his wife for money. For that, they rely on the
recovery of certain material objects like MO1 and MO9, in which MO9
is a lamp and MO1 and 2 are studs and nose ring. For that purpose,
they examined PWs 10 and 11 in order to prove that the respondent
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had sold the articles to these persons. However, they could not
establish the reason, if it were for money, why the gold chain encircling
the deceased's neck was not taken away by the respondent. Moreover,
PW1 the first person who found the body never deposed that, the stud
and nose rings were missing. Finally, the trial court entered into a
finding that those were concocted stories.
19. This court considered the depositions of the prosecution
witnesses along with the Section 313 statements. The explanation
given by the accused cannot appear to be a contradictory one. It is
trite law that in a case based on circumstantial evidence, the chain of
circumstance should be complete. Here, the prosecution cannot
adduce corroborative evidence to show that the chain of circumstance
is complete up to the cause of death of the deceased. There is no
corroborative evidence which shows that the accused has a direct role
in the murder of the deceased Sobha, his wife.
20. From the above analysis, it can be presumed that the findings
the trial court arrived at are not by ignoring or excluding the relevant
material or by taking into consideration irrelevant or inadmissible
materials. On weighing the evidence as well, it cannot be said that the
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findings of the trial court are perverse, and it outrageously defies logic
to suffer from the vice of irrationality. The findings of the trial court
are purely on the basis of reliable evidence which a reasonable person
would act upon. Therefore, we do not find any reason to conclude that
the findings of the trial court are perverse. Therefore, we are of the
considered opinion that the prosecution cannot make out a case that
warrants interference by this Court on the aforementioned
circumstances. The Appeal fails and is dismissed.
Sd/-
RAJA VIJAYARAGHAVAN V
JUDGE
Sd/-
P.M. MANOJ
JUDGE
ttb
