Kerala High Court
Viswanathan vs State Of Kerala on 12 March, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:20537
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 12TH DAY OF MARCH 2025 / 21ST PHALGUNA,
1946
CRL.A NO. 1119 OF 2019
AGAINST THE JUDGMENT DATED 21.08.2015 IN SC NO.367 OF
2009 OF ADDITIONAL SESSIONS COURT - III, MAVELIKKARA
APPELLANT/ACCUSED:
VISWANATHAN, AGED 62 YEARS,
S/O. KUNJU NAIR, VARUN NIVAS,
THRIPPERUMTHURA, ORIPRAM MURI, CHENNITHALA,
ALAPPUZHA DISTRICT.
BY ADVS.
SRI.C.RAJENDRAN
SMT.R.S.SREEVIDYA
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM PIN 682031.
BY SMT.AMBIKA DEVI S, SPL.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
24.02.2025, THE COURT ON 12.03.2025 DELIVERED THE
FOLLOWING:
Crl.A. No.1119 of 2019
2025:KER:20537
-: 2 :-
C.R.
P.B.SURESH KUMAR & JOBIN SEBASTIAN, JJ.
-----------------------------------------------
Crl.Appeal No.1119 of 2019
-----------------------------------------------
Dated this the 12th day of March, 2025
JUDGMENT
P.B.Suresh Kumar, J.
The sole accused in S.C.No.367 of 2009 on the files
of the Court of the Additional Sessions Judge-III, Mavelikara is
the appellant in the appeal. He stands convicted and
sentenced for having committed the murder of his wife,
Remadevi.
2. The accused was a tailor by profession. He was
residing with his wife and younger son, Varun. The elder son of
the appellant, Vipin was residing with one of his maternal aunts
for the convenience of his education. Remadevi was not
present in the house when Varun woke up on 10.09.2005.
When Varun enquired with the accused, the latter informed
2025:KER:20537
him that she had gone for a wedding. Remadevi did not return
home on 10.09.2005. The accused also did not return home
after his work on the said day. The disappearance of Remadevi
raised suspicion among her relatives, and on a search made by
them, her body was found in an unused septic tank in the
courtyard of her house itself.
3. On the basis of the information furnished by the
brother of the deceased, Rajeev Kumar, Mannar Police
registered a crime on 11.09.2005 in connection with the death
of Remadevi. The investigation in the case revealed that the
accused, on account of his suspicion on the chastity of
Remadevi, struck on the back of her head with an iron rod
while she was sitting on a chair and thereupon pushed her
body into an unused septic tank in their house which is filled
with water and thereby caused her death. The final report was
accordingly filed in the case against the accused alleging
commission of the offences punishable under Sections 302 and
201 of the Indian Penal Code (IPC).
2025:KER:20537
4. On the appellant being committed to trial, the
Court of Session framed charges against him in terms of the
final report to which he pleaded not guilty. The evidence in the
case consists of the oral evidence of PWs 1 to 28 and Exts.P1
to P22 proved through them. MO1 to MO12 are the material
objects identified by the witnesses. Exts.D1 to D6 series are
the case diary statements of some of the witnesses examined
on the side of the prosecution. The accused was thereupon
questioned under Section 313 of the Code of Criminal
Procedure (the Code) as regards the incriminating evidence
brought out by the prosecution. The accused denied the same.
The explanation offered by him at that stage was that
Remadevi left for attending a wedding at Kayamkulam on
10.09.2005 and that he has not seen her thereafter. It was also
his explanation that he was arrested by the police when he
went to his house on coming to know of the death of his wife.
As the Court of Session did not find the case to be one fit for
acquittal under Section 232 of the Code, the accused was
called upon to enter on his defence. The accused examined a
2025:KER:20537
witness on his side at that stage as DW1. Thereafter, on an
appreciation of the evidence, the Court of Session found the
accused guilty of the charges and sentenced him, among
others, to imprisonment for life. The accused is aggrieved by
his conviction and sentence, hence this appeal.
5. Heard the learned counsel for the appellant as
also the learned Special Public Prosecutor.
6. The issue that arises for consideration in the
appeal is whether the conviction and sentence passed against
the appellant, are sustainable in law.
7. As there is no direct evidence to the
occurrence alleged by the prosecution, the attempt of the
prosecution was to prove the same through circumstantial
evidence. One of the contentions seriously pressed into service
by the learned counsel for the appellant at the time of hearing
was that the circumstances proved in the case do not establish
the guilt of the accused beyond reasonable doubt. In the light
of the said contention, it is necessary to delve deep into the
evidence let in by the prosecution.
2025:KER:20537
8. PW1 is the brother of Remadevi who lodged
the First Information Statement. PW1 was a Police Constable at
the relevant time. According to PW1, at about 10.30 a.m. on
11.09.2005, he was informed by his elder brother, Surendran
that Remadevi who left for a wedding on 10.09.2005 had not
returned home and when he went to her house on the basis of
the said information, the house was seen locked. It was
deposed by PW1 that when he made enquiries with Latha, a
neighbour of Remadevi, in whose house Varun was present,
Latha informed PW1 that at about 5.00 p.m. on 10.09.2005,
the appellant called her over telephone and informed her that
he is going to Coimbatore with Remadevi to arrange a job for
her. It was deposed by PW1 that he then left the house of
Remadevi along with Varun and went to the shop of the
appellant at Thriperunthura and he was informed by a person
who was found near the shop then that the appellant had
closed the shop and left the place at about 3.00 p.m. on
10.09.2005. PW1 deposed that thereupon, he went to the
house of Remadevi again with some of his relatives and on a
2025:KER:20537
search, they found her body in the septic tank. It was his
version that the body was removed from the septic tank on
12.09.2005 at about 9.00 a.m. and the funeral was conducted
in his house at Kayamkulam after the inquest and postmortem
examination on the said day. It was specifically deposed by
PW1 that the appellant did not attend the funeral. PW1
acknowledged the fact that it was he who lodged Ext.P1 First
Information Statement and identified MO1 as the dress worn by
Remadevi at the time when her body was found in the septic
tank.
9. PW2 is Varun. PW2 gave evidence consistent
with the evidence given by PW1. In addition, it was deposed by
PW2 that he heard a sound on the night of 09.09.2005 and
when he switched on the light on hearing the same, the
appellant came there and required him to sleep and lay with
him on the bed. It was deposed by PW2 that when he enquired
with the appellant about his mother on the morning of the
following day, the appellant informed him that she had gone
for a wedding in Thiruvalla. It was deposed by PW2 that after
2025:KER:20537
returning home from a movie in the afternoon, he went to the
house of Latha to watch television and she informed him that
his father had called and informed her that he is going to
Coimbatore with his mother to arrange a job for the latter. It
was the version of PW2 that after watching television for
sometime, he came back to his house and slept. It was
deposed by PW2 that when he woke up on the following day, it
was found that the ornaments and clothes usually worn by his
mother were still at home. In the evidence tendered by PW2, it
was mentioned by him that there were frequent quarrels
between his parents and that the appellant used to beat her
also at times. PW2 identified MO1 as the dress of Remadevi
and MO7 as the iron rod retained in their house. PW9 is the
elder son. PW9 also deposed that there used to be frequent
quarrels in his house between his parents and that the
appellant did not like his mother talking to others or going to
houses in the neighbourhood. PW9 also deposed that the
appellant used to assault his mother on account of his
suspicion on her.
2025:KER:20537
10. PW4 is Latha referred to by PWs 1 and 2 in their
evidence. PW4 gave evidence consistent with the evidence
tendered by PWs 1 and 2. In addition, she deposed that she
saw Remadevi at about 6 p.m. on 09.09.2005; that Remadevi
informed her then that she would be attending a marriage on
10.09.2005; that she would come back before the meeting of
the "Kudumbasree Unit" scheduled on that day and that
Remadevi did not turn up for the said meeting. It was the
version of PW4 that by about 5 p.m. on 10.09.2005, she
received a call on her number 0479-2311118 from the
appellant informing her that he is calling from Thiruvalla; that
Remadevi is with him and that they are going to Coimbatore to
arrange a job for Remadevi. In cross-examination, when PW4
was questioned as to how she realised that the person who
telephoned her was the appellant, her answer was that she is
well-acquainted with his sound.
11. PW5 is another neighbour of Remadevi. PW5
deposed that she used to occasionally hear the quarrels
between the appellant and Remadevi. PW6 is also another
2025:KER:20537
neighbour. PW6 deposed that Remadevi came to her house at
about 6.30 p.m. on 09.09.2005 and in the conversation they
had on that day, Remadevi informed her that she would be
attending a wedding on the following day. PW6 also deposed
that the appellant used to suspect Remadevi whenever she
spoke to anyone. PW7 is another neighbour. The version of
PW7 was that Remadevi used to tell her about the quarrels that
occur in their house on account of the suspicion the appellant
had on her. PW10 is the husband of one of the elder sisters of
Remadevi. It was with PW10 that PW9, the elder son of
Remadevi was residing. PW10 also deposed that the appellant
used to assault Remadevi often and that PW10 and his wife
had to intervene on several such occasions to resolve the
issues between them. PW21 is the wife of PW10. She gave
evidence more or less on similar lines as the evidence
tendered by PW10.
12. PW11 was a lady who was engaged in the
operation of a telephone booth at Thiruvalla during 2005.
PW11 identified Ext.P3 as the book maintained by her in her
2025:KER:20537
handwriting at the said booth to record calls. It was deposed by
PW11 that an entry was made by her in Ext.P3 in relation to a
call made to the number - 0479-2311118 and she collected a
sum of Rs.3.50 from the caller towards the charges. In cross-
examination, it was however admitted by PW11 that the date
on which the call was made is not recorded in Ext.P3. Similarly
it was admitted by PW11 that the time at which the call was
made is also not recorded in Ext.P3. Likewise, it was admitted
by PW11 in her evidence that even though police had shown to
her a person, to ascertain whether he was the one who made
the above call, she informed the police that she could not
recognise him. PW19 was the Assistant Director of the Forensic
Science Laboratory, Thiruvananthapuram who issued Ext.P10
report. It was deposed by PW19 that item No.1 in Ext.P10
report is one metallic rod with a ring at one end having a
maximum length of 65.5 cms and that it contained blood,
although its origin could not be determined.
13. PW23 was the doctor who conducted the
postmortem examination on the body of the deceased on
2025:KER:20537
12.09.2005 and issued Exts.P14 and P15 postmortem
certificates. The ante-mortem injuries noted by PW23 at the
time of post-mortem examination as deposed by PW23 are the
following :
1. Lacerated wound 6x2cm bone deep on the left side of the back
of head 4cm behind upper border of the left ear. Underneath
depressed fracture of skull 4.5x3cm on the occipital bone. Brain
showed subdural haemorrhage bilaterally and decomposition
changes.
2. Contused abrasion 7x2.5cm oblique on the upper part of back
of neck 7cm below external occipital protuberance.
It was opined by PW23 that the time of death at any rate was 2
to 3 days prior to the post-mortem examination. It was also
opined by PW23 that injury No.1 is one that could be caused
with MO7 iron rod and that the death was due to the combined
effect of the head injury and drowning.
14. PW22 was the police officer who recorded
Ext.P1 First Information Statement from PW1 and registered
the case. PW22 deposed that it was he who arrested the
appellant at about 12 p.m. on 12.09.2005. In cross-
examination, PW22 clarified that he went to the scene of
occurrence within half an hour on receipt of the information
regarding the commission of the crime and he remained there
2025:KER:20537
till 9.00 p.m. on that day. It was also stated by him in cross-
examination that he deputed a police constable named Shaji to
guard the scene. PW25 was the police officer who conducted
the initial investigation in the case. Among others, it was
deposed by him that it was he who held the inquest and issued
Ext.P2 inquest report. It was also deposed by PW25 that during
interrogation, it was disclosed to him by the appellant that he
has kept an iron rod, iron bar and a torch, in the iron shelf kept
in one of the bedrooms of his house and when the appellant
was taken to that place as guided by him, he took out those
articles and the same were seized as per Ext.P8 mahazar.
PW25 identified those articles as MO7, MO8 and MO9
respectively. Ext.P8(a), according to PW25 is the relevant
portion of the disclosure which led to the recovery of MO7,
MO8 and MO9.
15. PW16 is one of the neighbours of the
deceased. PW16 was a witness to Ext.P8 mahazar. It was
deposed by PW16 that the appellant was present in the house
at the time of preparation of Ext.P8 mahazar and he saw the
2025:KER:20537
police seizing MO7 iron rod, MO8 iron bar and MO9 torch from
the house of the appellant. In cross-examination, PW16
admitted that when he arrived at the house of the appellant on
the relevant day, there was police both inside and outside; that
PW16 remained outside the house and that he affixed his
signature in Ext.P8 mahazar while remaining outside the
house.
16. DW1 is the witness examined by the appellant
on his side. The evidence of DW1 was that he had
acquaintance with the appellant and the deceased; that he
saw the deceased at about 6.30 a.m. on 10.9.2005 at the place
called Puthuvilapadi junction; that when he enquired with her
where she was proceeding then, the deceased informed him
that she was going to attend a wedding at Kayamkulam and
that after sometime, he saw her boarding a bus which was
proceeding towards south.
17. It is based on the evidence discussed in the
preceding paragraphs that the Court of Session came to the
conclusion that the prosecution has proved the guilt of the
2025:KER:20537
accused, beyond reasonable doubt. The first and foremost
contention raised by the learned counsel for the appellant is
that it is a case where corpus delicti has not been established
by the prosecution and the appellant is entitled to acquittal on
that sole ground. Alternatively, it was also contended by the
learned counsel that no circumstances pointing towards the
guilt of the appellant has been proved in the case. It was
argued, even assuming that any circumstances have been
proved in the case, the same are not sufficient to establish the
guilt of the accused beyond reasonable doubt. It was also
argued by the learned counsel that at any rate, inasmuch as
the cause of death was not solely on account of the injury
suffered by the deceased on her head, the appellant cannot be
convicted for the offence punishable under Section 302 of the
IPC and that at the most, the appellant could be convicted only
for the offence punishable under Section 307 IPC.
18. Let us first deal with the contention of the
appellant that the prosecution failed to establish the corpus
delicti. Before doing so, it is worth referring to the
2025:KER:20537
observations made by the Apex Court in Sevaka Perumal v.
State of Tamil Nadu, (1991) 3 SCC 471 in the context of the
question whether it is necessary at all in every case to
establish corpus delicti. The observations read thus:
"5. Sri Raju Ramachandran contended that the dead body was
admittedly found in a highly decomposed condition. There is
no proper identification of the dead body to be of the
deceased. The mother PW 2 identified only with reference to
the photograph taken of the dead body. There is evidence that
the deceased wrote a letter of leaving for unknown
destination. Unless there is proof that the dead body belongs
to Hariramachandran, it is not safe to convict A-1 to a capital
punishment of death sentence. We find no force in the
contention. In a trial for murder it is not an absolute necessity
or an essential ingredient to establish corpus delicti. The fact
of death of the deceased must be established like any other
fact. Corpus delicti in some cases may not be possible to be
traced or recovered. Take for instance that a murder was
committed and the dead body was thrown into flowing tidal
river or stream or burnt out. It is unlikely that the dead body
may be recovered. If recovery of the dead body, therefore, is
an absolute necessity to convict an accused, in many a case
the accused would manage to see that the dead body is
destroyed etc. and would afford a complete immunity to the
guilty from being punished and would escape even when the
offence of murder is proved. What, therefore, is required to
base a conviction for an offence of murder is that there should
be reliable and acceptable evidence that the offence of
murder, like any other factum of death was committed and it
must be proved by direct or circumstantial evidence, although
the dead body may not be traced. In this case the evidence of
PWs 7 to 10 would establish that they have seen the dead
body of the deceased Hariramachandran in the well and
brought it out and the photograph was taken at the time of
inquest. It was identified to be that of the deceased by no
other than his mother, PW 2. Thus we have no hesitation to
hold that there is no doubt as regards the identity of the dead
body and that the medical evidence establishes that the
deceased died due to stabbing with sharp edged weapon like
knife." (Underline supplied)
2025:KER:20537
As noted, the deceased was found missing from her house
from the morning hours of 10.09.2005. The body of the
deceased was found on 11.09.2005 in the septic tank in the
courtyard of her house. The body was identified by her own
brothers as also neighbours based on the features of her lower
limbs and the dress worn by her at the relevant time, as the
body was in an upside-down position in the septic tank then.
The body was taken out from the septic tank on the morning of
12.09.2005 at the time of holding the inquest. As noted, Ext.P2
is the inquest report. The materials on record indicate that at
the time of holding the inquest, the body was recognised by
one of the younger brothers of the deceased namely, Suresh
Kumar. No doubt, it was deposed by PW23, that at the time of
postmortem examination, the face of the deceased was
bloated, eyes bulged and tongue protruded and to that extent,
the body was decomposed. Inasmuch as the body was found
within two days of the death, it cannot be said that on account
of the said changes, the close relatives would not be in a
position to recognise the body based on visible features. True,
2025:KER:20537
the brother of the deceased who recognised the body at the
time of holding the inquest was not examined in the case, but,
PW25, the police officer who held the inquest gave evidence
that the inquest was held on the body of the deceased and the
said part of the evidence was not challenged by the appellant
in cross-examination. That apart, PW1 deposed that he was
also present when the lid of the septic tank was removed and
whilst so, he saw the body of the deceased in an upside-down
position. The relevant evidence of PW1 reads thus:
"ഞങൾ എല വര കട ആ tank ന മ ൽമട റ. അമ ൾ എന സമ ദരയനട
ക ലകൾ മകളമ!ക ത!കതന& ഞ ൻ കണ. അത എന സമ ദര ആണ+ എന
എ&ക മ- ദ/ ആയ."
This part of the evidence tendered by PW1 has also not been
cross-examined by the counsel for the appellant. In the above
circumstances, we do not find any substance in the argument
that the prosecution failed to establish the corpus delicti in the
case.
19. Let us now consider the arguments advanced
by the learned counsel for the appellant as regards the
circumstances relied on by the prosecution. It is necessary in
2025:KER:20537
this context to keep in mind the principles governing
acceptance of evidence in a case of this nature. The principles
are:
(1) that the circumstances from which the conclusion of
guilt is drawn are fully established,
(2) that the facts so established are 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,
(3) that the circumstances are of a conclusive nature and
tendency,
(4) that they should exclude every possible hypothesis
except that the accused is guilty, and
(5) that 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.
There cannot be any doubt that the circumstances to be
proved to establish the guilt of the accused in a given case,
shall be of a conclusive nature and tendency and the same
shall be fully established, which means that the circumstances
shall unequivocally establish the truth of the facts, leaving no
reasonable doubt, or alternative explanation and the same
2025:KER:20537
should have a definite tendency of implicating the accused in
the crime.
20. One of the circumstances relied on by the
prosecution is the recovery of MO7 iron rod allegedly based on
the information furnished by the appellant. No doubt, it is
proved that MO7 is an iron rod that was retained in the house
of the appellant. It has come out from the evidence of PW22,
the police officer who registered the crime that he went to the
scene of occurrence within half an hour on receipt of the
information regarding the commission of the crime and that he
also deputed a police constable to guard the scene of
occurrence on the same day. In other words, the scene of
occurrence which is the house of the appellant was very much
under the control of the police from the evening hours of
11.09.2005. As already noticed, the inquest was held by PW25
on 12.09.2005 at about 9.00 a.m. in the courtyard of the house
of the appellant itself. Going by the evidence tendered by
PW22, it was thereafter at about 12.00 p.m. that the appellant
was arrested from a place called Koyikkal Junction. What was
2025:KER:20537
deposed by PW25 is that it is in the interrogation conducted
thereupon, that the appellant made Ext.P8(a) disclosure and
MO7 was recovered based on the said disclosure. Ext.P8(a)
disclosure reads thus:
"കമവടയ എ!വ ങ മട ർച ഞ ൻ എന വ5ടന വടക+ പടഞ മ9 കടപ
മ9യൽ നതകവശ ഭതമയ ട+ മ=ർന+ 5 തടകമള ട കടയത , ഉമBശ
6 അടമയ ള നപ ക വരനത യ ഇരമ നEൽഫന മകള!നത തടൽ ഒളച
വചടണ+. ഞ ൻ അനതടത+ ജര ക ."
As noted, the disclosure is that the articles referred to therein
are kept by the appellant in one of the iron shelves in the
almirah placed in one of the rooms in his house. The evidence
tendered by PW25 is that the appellant took out MO7 and other
articles when he was taken to his house which was under the
control of the police from the previous evening. Inasmuch as
the said material object is stated to have been recovered from
the house which was under the control of the police, according
to us, it may not be safe to place reliance on the evidence
tendered by PW25 in this regard. Another reason for us to think
on the said lines is that even though PW16, one of the
witnesses to the recovery mahazar namely, Ext.P8 admitted
his signature in the mahazar, what was deposed by him was
2025:KER:20537
only that the appellant was present when MO7 and other
articles were recovered by the police. PW16 has not stated in
his evidence that he saw the appellant taking out or handing
over MO7 to the police. That apart, the prosecution connects
MO7 with the crime by reason of the presence of blood therein
though its origin could not be determined. MO7 is described in
Ext.P8 mahazar thus:
"കമവട മ& കയതൽ ഇത&+ 96 cm ന തതൽ &5ള ക ണന. ഇതന
ഒരവശ ഹക+ ആകതയയ , റവശ 9Pണല യ ക ണന. ഇത&+ 4.2 cm
ചറളവ+ ക ണന."
Ext.P16 is the forwarding note in terms of which MO7 was
forwarded by the Jurisdictional Magistrate to the Forensic
Science Laboratory, Thiruvananthapuram for examination. The
description of MO7 in Ext.P16 is as follows:
"ഉമBശ 96cm (ഹക വളയവ ഉൾന നട) &5ള ഉളത 4.2cm ചറളവളത
ഒരവശ , ഹക+ ആകതയല റവശ 9Pണ+ ആകതയലമള കമവട ഒന+."
But the description of MO7 which is item No.1 in Ext.P10 report
is not consistent with its description in Ext.P8 mahazar and
Ext.P16 forwarding note. MO7 is described in Ext.P10 thus:
"One metallic rod with a ring at one end and had a maximum
length of 65.5 cms. The other end was found bent. The bent
portion had a maximum length of 16.5 cm. Rust was found on
it."
2025:KER:20537
Even though PW19 who issued Ext.P10 was examined in the
case, MO7 was not shown to him, nor was the discrepancy
clarified. As such, even assuming that the prosecution has
established that the recovery of MO7 is one that would fall
within the ambit of Section 27 of the Indian Evidence Act, the
same may not connect the accused with the crime. Needless to
say, the evidence tendered by PW25 as regards the recovery of
MO7, cannot be accepted as a circumstance connecting the
accused with the crime.
21. Another circumstance relied on by the
prosecution is the evidence tendered by PW4 that the
appellant had telephoned her at about 5.00 p.m. on
10.09.2005 and informed her that he is going to Coimbatore
along with the deceased to arrange a job for her. It was
contended that call records have not been made available to
corroborate the evidence tendered by PW4. Instead, the
prosecution examined PW11, the person who was operating
the telephone booth from which the call was allegedly made.
PW11 has only deposed that someone made a call to the
2025:KER:20537
number of PW4 between 09.09.2005 and 12.09.2005. She has
not deposed that it was the appellant who made the said call.
There is no dispute to all these facts. But, at the same time, on
a close reading of the evidence of PW4, we do not find any
reason to disbelieve the evidence tendered by PW4 in this
regard. The reason is that the said part of the evidence
tendered by PW4 is consistent with the evidence tendered by
PW1 that even before the death of Remadevi came to light,
PW4 informed Surendran, his elder brother that the appellant
had made a call to her at about 5 p.m. on 10.09.2005 and
informed her that he is going to Coimbatore along with the
deceased to arrange a job for her, which is consistent with
Ext.P1 First Information Statement given by him also.
22. As noted, there is no dispute to the fact that
the appellant and the deceased were residing in the same
house and the evidence of PW2 would indicate that they were
together in the house on the night of 09.09.2005 when PW2
went to sleep. It has come out from the evidence of PW2 that
he heard a sound on the night of 09.09.2005 and when he
2025:KER:20537
woke up and switched on the light hearing the sound, the
appellant came to his room, asked him to sleep and lay with
him on the bed. It has also come out from the evidence of PW2
that the deceased was not present in the house on the
following morning. As noted, the body of the deceased was
found in the unused septic tank in the courtyard of the house
of the appellant itself and when the body was recovered, she
was wearing her night dress. In the light of the evidence
tendered by PW23, the doctor who conducted the post-mortem
examination that the death must have occurred 2 to 3 days
prior to the postmortem examination, it could certainly be
inferred that the death occurred on the night of 09.09.2005
itself. If that be so, the evidence let in on behalf of the
appellant is also one to be rejected. Since the appellant and
the deceased were last seen together by PW2 and since the
death occurred on the same day night itself, it is for the
appellant to explain as to how the death occurred for, no one
under the said circumstances could inflict an injury on the
deceased and put her body into the septic tank without the
2025:KER:20537
knowledge of the appellant. The appellant has no explanation
as to how the death occurred on the night of 09.09.2005.
Instead, when PW2 enquired with the appellant about the
deceased on the morning of 10.09.2005, the appellant made a
false representation to PW2 that the deceased had left for
Thiruvalla to attend a wedding. It has come out from the
evidence of PW1 that the appellant who left the house in the
morning of 10.09.2005 to his shop, had closed the shop and
left the place at 3.00 p.m. on the same day. There is no dispute
to the fact that the appellant who left the house as usual in the
morning hours of 10.09.2005 did not return home on that day.
Instead, in order to justify his absence from the house, he
informed PW4 falsely that the deceased is with him and that
they are going to Coimbatore to arrange a job for her. The said
circumstances together with the circumstances that the
relationship with the appellant and the deceased was not
cordial; that the appellant used to suspect the chastity of the
deceased; that there used to be frequent quarrels between
them and that the appellant used to assault the deceased at
2025:KER:20537
times, according to us, would form a chain of evidence so
complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the appellant and
would show that in all human probability it was the appellant
who caused the head injury on the deceased and thereafter
pushed her body into the unused septic tank in their house.
23. What crimes could be attributed to the
appellant, on the proved facts, is the next question. As noted,
even though the case of the prosecution is that the appellant
struck on the back of the head of the deceased with an iron rod
and thereupon pushed her body into an unused septic tank
filled with water and thereby caused her death, in the absence
of any direct evidence, what was established in the case is only
that it was the appellant who caused the head injury on the
deceased and thereafter pushed her into the unused septic
tank. It is relevant in this context to mention here that in the
absence of any direct evidence, we are unable to hold,
conclusively, that the weapon used by the appellant to inflict
the head injury on the deceased is MO7, even though PW23
2025:KER:20537
opined that the said injury is one possible with MO7, especially
since the origin of the blood found on MO7 could not be
determined. Be that as it may, there is no sufficient evidence
in the case to hold that the appellant intended to cause the
death of Remadevi. Merely for the reason that the relationship
between the appellant and the deceased were not cordial, it
cannot straight-away be inferred that the appellant intended to
cause her death. There are indications in the evidence that
there was some difference of opinion between the appellant
and the deceased over the decision of the latter in attending a
wedding scheduled at Thiruvalla on the following day. Viewed
in this background, especially in the light of the evidence in the
case that the appellant was a hard-working person who did not
have any vices, in all probability, the injury found on the body
of the deceased must have been one inflicted by the appellant
in the course of their conversation over the decision of the
deceased in attending a wedding at Thiruvalla. Unusually,
PW23 did not state in his evidence that injury 1 is either
sufficient in the ordinary course of nature to cause death or at
2025:KER:20537
least likely to cause death. What could be inferred from the
proved facts is only that the appellant intended to cause a
bodily injury to the deceased and inflicted the intended bodily
injury.
24. In the light of the evidence tendered by PW23
that the cause of death was due to the combined effect of
injury 1 and drowning, it is established that the bodily injury
inflicted on the deceased by the appellant did not result in her
death and the same occurred when the appellant pushed down
the deceased into the septic tank. Inasmuch as it was found
that the appellant is the person who put the body of the
deceased in the septic tank, it can certainly be inferred that
the deceased fell unconscious on account of the head injury, or
otherwise, it would be impossible, under normal
circumstances, for anyone to put the body of a grown up adult
into a septic tank, that too, after removing its concrete lid
without other residents or neighbours noticing the same. We
take this view in the light of the evidence tendered by PW2
that he heard a sound in the night and immediately thereupon,
2025:KER:20537
the appellant came to his room and lay down in the bed with
him. Two hypotheses can be drawn on the above facts. Either
this must be a case where the appellant was under the
impression when he put the body of the deceased into the
septic tank that she was lifeless and he did so to cause
disappearance of the evidence of the crime, or this must be a
case where the appellant was aware that she was alive and put
her body into the septic tank to cause her death.
Unfortunately, we do not have any evidence to show that the
appellant had knowledge that Remadevi was alive at the time
when he put her body into the septic tank and in the absence
of any conclusive evidence to show that the appellant had
knowledge that Remadevi was alive at the time when he put
her body into the septic tank, the possibility of the appellant
putting the body of the deceased in the septic tank for the
purpose of causing disappearance of the evidence, cannot be
ruled out. As is well settled, the benefit of every doubt in
criminal adjudication shall go in favour of the accused.
Needless to say, we are constrained to hold that when the
2025:KER:20537
body of the deceased was put in the septic tank by the
appellant, he was under the impression that the body was
lifeless and he did so for the purpose of causing disappearance
of the evidence.
25. This takes us to the question whether, on the
specific facts and circumstances of the case, the act
performed by the appellant in putting the body of the
deceased which he believed to be lifeless, in the septic tank
for the purpose of causing disappearance of the evidence of
the crime, would attract the offence punishable under Section
299 IPC. Section 299 reads thus:
"299. Culpable homicide. Whoever causes death by doing
an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause
death, or with the knowledge that he is likely by such act to
cause death, commits the offence of culpable homicide.
As evident from the extracted definition, the offence
punishable under Section 299 IPC is attracted only when a
person does an act which causes death of another, either with
the intention of causing death or with the intention of causing
such bodily injury as is likely to cause death or with the
2025:KER:20537
knowledge that he is likely by such act to cause death. These
three are the species of mens rea as contemplated in the
provision, and unless it is conclusively established that the act
of the accused would fall under any of these three limbs, it
would not amount to an offence of culpable homicide
punishable under Section 299 IPC. Needless to say, if an act is
committed on a body which a person believed to be lifeless at
the time of commission of such act, the offence is not attracted
for, when the act was performed, the person concerned could
have neither had the intention of putting an end to the human
life nor had the intention of causing a bodily injury as is likely
to cause death nor had the knowledge that he is likely by such
act to cause death. In fact, the said proposition has been
clarified by a Full Bench of the Madras High Court in Palani
Goundan v. Emperor, 1919 SCC OnLine Mad 67. The facts
as found by the court in that case were that the accused struck
his wife with a blow on her head with a ploughshare, which
rendered her unconscious. He believed her to be dead and in
order to lay the foundation of a false defence of suicide by
2025:KER:20537
hanging, proceeded to hang her on a beam by a rope. The
blow was, however, not fatal and in fact she died as a result of
strangulation, which was also an act of the accused. It is in the
context of the said factual background, the proposition
aforesaid has been laid down. The relevant portion of the
judgment reads thus:
"It is not necessary that any intention should exist with
regard to the particular person whose death is caused, as in
the familiar example of a shot aimed at one person killing
another, or poison intended for one being taken by another.
"Causing death" may be paraphrased as putting an end to
human life; and thus all three intentions must be directed
either deliberately to putting an end to a human life or to
some act which to the knowledge of the accused is likely to
eventuate in the putting an end to human life. The knowledge
must have reference to the particular circumstances in which
the accused is placed. No doubt if a man outs the head off
from a human body, he does an act which he knows will put
an end to life, if it exists. But we think that, the intention
demanded by the section must stand in some relation to a
person who either is alive, or who is believed by the accused
to be alive. If a man kills another by shooting at what he
believes to be a third person whom he intends to kill, but
which is in fact the stump of a tree, it is clear that he would be
guilty of culpable homicide. This is because though he had no
criminal intention towards any human being actually in
existence, he had such an intention towards what he believed
2025:KER:20537
to be a living human being. The conclusion is irresistible that
the intention of the accused must be judged not in the light of
the actual circumstances, but in the light of what he supposed
to be the circumstances. It follows that a man is not guilty of
culpable homicide if his intention was directed only to what he
believed to be a lifeless body. Complications may arise when
it is arguable that the two acts of the accused should be
treated as being really one transaction as in Queen-Empress
v. Khandu [(1891) I.L.R., 15 Bom., 194.] or when the facts
suggest a doubt whether there may not be imputed to the
accused a reckless indifference and ignorance as to whether
the body he handled was alive or dead, as in Gour Gobindo's
Case [(1866) 6 W.R. (Cr. R.), 55.]. The facts as found here
eliminate both these possibilities, and are practically the
same as those found in The Emperor v. Dalu Sardar [(1914)
18 C.W.N. 1279.]. We agree with the decision of the learned
Judges in that case and with clear intimation of opinion by
SERGEANT, C.J., in Queen-Empress v. Khandu.
Though in our opinion, on the facts as found, the
accused cannot be convicted either of murder or culpable
homicide, be can of course be punished both for his original
assault on his wife and for his attempt to create false
evidence by hanging her. These, however, are matters for the
consideration and determination of the referring Bench."
(underline supplied)
As evident from the extracted passage, the view taken is that
the intention of the accused must be judged not in the light of
the factual circumstances, but in the light of what he supposed
to be the circumstances and that therefore, the accused
2025:KER:20537
cannot be found guilty of culpable homicide, if his intention
was directed only to what he believed to be a lifeless body.
We respectfully agree with the view taken by the Madras High
Court in the said case.
26. The learned Special Public Prosecutor
submitted that the decision in Palani Goundan has not been
followed by the Madras High Court in Kaliappa Goundan and
another, 1933 SCC OnLine Mad 138 and contended that on
identical facts, it was held in that case that the accused can be
convicted for the offence of murder in the case on hand.
According to the learned Special Public Prosecutor, the acts
committed by the appellant namely the act of inflicting injury
on the head of the deceased and the act of putting her body
into the septic tank should be treated as one transaction and if
the acts are treated as one transaction, it could certainly be
inferred that the accused intended to cause the death of
Remadevi and in that event, there is absolutely no scope for
the argument that the said acts would not amount to murder.
2025:KER:20537
27. In Queen-Empress v. Khandu, (1892) ILR 15
Bom 194], under a similar circumstance, it was held by the
Bombay High Court that the acts of the accused would amount
to murder. In that case, it was found that the accused struck
the deceased with three blows on the head using a stick with
the intention of killing him. Thereupon, believing that he was
no more, he set fire to the hut in which the victim was lying
with a view to remove all evidence of the crime. As in the case
of Palani Goundan, the blows were not fatal and the person
died on account of burn injuries. On the said facts, one of the
learned Judges who constituted the Bench in Khandu, took the
view that the whole transaction, the blow and the burning,
must be treated as one and that therefore, the original
intention to cause death must be applied to the act of burning
which did cause the death. In Kaliappa Goundan, the case of
the prosecution was that the accused persons, two in number,
decoyed the wife of the first accused under the pretence of
taking her to see a sick relation, strangulated her on the way
and put her dead body on the railway line so that the train
2025:KER:20537
might run over the body and obliterate all the traces of the
crime. The train ran over the body resulting in decapitation.
The Court found that the accused made an attempt to
strangulate the deceased; that she was thereupon dragged
either in an unconscious or semi-conscious condition on to the
railway line and placed her in front of the train and that the
intention of the accused, throughout, was to cause her death.
It was also found by the court that the intention with which the
accused strangulated the deceased cannot be separated from
the intention with which they put her body across the railway
line; that the two acts were intimately connected with each
other and that the latter one followed immediately upon the
former and that both the acts of the accused must be treated
as being only one transaction, the transaction being to kill the
deceased. In Palani Goundan, the Court observed that
complications may arise when it is arguable that two acts of
the accused should be treated as being really one transaction
as in Khandu and proceeded to lay down the proposition on
the ground that the facts of Palani Goundan as found,
2025:KER:20537
eliminate the said possibility. It is seen that in the light of the
said observation, the learned Judges who decided Kaliappa
Goundan, took the view that if the facts of the case are as in
Khandu, the dictum in Palani Goundan does not apply and
decided the case on the facts found therein. It is incorrect,
therefore, to contend that the learned Judges in Kaliappa
Goundan did not follow the decision of the full bench in
Palani Goundan. The premise on which Kaliappa Goundan
was decided is that the dictum in Palani Goundan does not
apply to the facts of that case.
28. Reverting to the case on hand, we do not think
that it is possible to argue that the two acts of the appellant
could be treated as being parts of one transaction as in the
case of Khandu for, it is found that the appellant had not
intended to cause the death of Remadevi. Needless to say, the
argument advanced by the learned Special Public Prosecutor
based on the decision of the Madras High Court in Kaliappa
Goundan is only to be rejected and we do so.
2025:KER:20537
29. The finding that the appellant cannot be
convicted for culpable homicide not amounting to murder
under Section 299 or murder under Section 300, does not lead
to the inference that the appellant is entitled to be acquitted
on the facts of the case. As clarified by the Madras High Court
in Palani Goundan itself, in a case of this nature, the
appellant can certainly be convicted for the original act which
rendered Remadevi to an unconscious state and also for his
attempt to cause disappearance of the evidence. Inasmuch as
it is found that what could be inferred from the proved facts is
that the appellant intended only to cause a bodily injury to the
deceased and inflicted the intended bodily injury on her, the
appellant is liable to be convicted for grievous hurt under
Section 326 of IPC. Similarly, he is liable to be convicted for the
offence punishable under Section 201 IPC for causing
disappearance of the evidence.
30. Coming to the sentence, having regard to the
totality of the facts and circumstances of the case, especially
the nature of injury inflicted by the appellant on the deceased,
2025:KER:20537
we are of the view that ten years rigorous imprisonment would
be the appropriate sentence to be imposed on him for the
offence punishable under Section 326 IPC.
In the result, the appeal is allowed in part, the
conviction of the appellant is altered to Section 326 IPC and he
is sentenced to undergo rigorous imprisonment for a period of
ten years and to pay a fine of Rs.10,000/-, and in default of
payment of fine, to undergo simple imprisonment for a period
of six months. The sentences shall run concurrently as ordered
by the Court of Session. The conviction and sentence of the
appellant for the offence punishable under Section 201 IPC will
stand confirmed.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOBIN SEBASTIAN, JUDGE.
ds 24.02.2025
