Kerala High Court
Kesavan Nambudiri @ Moni vs State Of Kerala on 18 March, 2011
Bench: Pius C.Kuriakose, N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 346 of 2007()
1. KESAVAN NAMBUDIRI @ MONI,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE CIRCLE INSPECTOR OF POLICE,
For Petitioner :SRI.K.RAMAKUMAR (SR.)
For Respondent : No Appearance
The Hon'ble MR. Justice PIUS C.KURIAKOSE
The Hon'ble MR. Justice N.K.BALAKRISHNAN
Dated :18/03/2011
O R D E R
PIUS C.KURIAKOSE & N.K.BALAKRISHNAN, JJ.
----------------------------------------------------
Crl. Appeal No.346 of 2007
---------------------------------------------------- Dated this the 18th day of March, 2011 Judgment Balakrishnan, J.
The appellant was found guilty of fratricide. He was hence convicted for the offence under Section 302 IPC and was sentenced to undergo imprisonment for life. This appeal is directed against the said conviction and sentence passed against him.
2. The gist of the prosecution case is stated thus:
Neelakandan Nambudri-the deceased is the elder brother of the accused-appellant. The accused, his wife and their son aged about 11 years and also deceased Neelakandan Nambudri and his wife Subhadra Devi (P.W.4) were residing in the same house 'illathumadom'. That house was allotted to the accused as per Ext.P15 partition deed with a stipulation that deceased Neelakandan Nambudri can reside in that house for 10 years from the date of Ext.P15. That period expired in 1994. He did not vacate the house as per the stipulations contained in Ext.P15. He was in Air Force. Thereafter, he went abroad. After returning from gulf country also, he did not vacate the house. Therefore, the accused demanded the deceased to vacate the Crl.A.No.346/07 2 house. On 16.7.2002 the accused gave an ultimatum to P.W.4, the wife of the deceased Neelakandan Nambudri to vacate the house and if not, they would be forcibly evicted. On 17.7.2002 also, the accused demanded the deceased to leave the house. The deceased agreed to leave the house within two months. The accused nodded his head reluctantly. Accused decided to somehow or other finish his brother off. All the five members were staying in the very same house 'illathumadom'. In the early morning of 18.7.2002 at about 5.30 AM, P.W.4, wife of deceased Neelakandan Nambudri woke up and went out as usual to attend her daily routine domestic work. While going out she took her chappels which were kept in the room where her husband was sleeping and she closed the door when she went out. She went to the cow shed and removed the cow dung. When she was returning, she saw the door of the bedroom of the deceased lying open. Out of curiosity she went there. Then she saw her husband lying on the cot with deep injuries on the back of his head. She suddenly came out and made hue and cry. She could then see the accused standing in the adjacent room. Near to him, there was a blood stained axe kept slanting on the wall. On hearing her hue and cry, the neighbours reached there. P.W.1- Crl.A.No.346/07 3 Chellappan, a neighbour, after getting information regarding the incident went to Perumpetty Police Station and lodged Ext.P1, the first information statement to the Sub Inspector who registered Ext.P22 FIR at 8 AM. The Circle Inspector ( P.W.18) took up investigation, proceeded to the scene of occurrence and prepared Ext.P23 inquest. Thereafter the dead body of Neelakandan Nambudri was sent to the Medical College Hospital, Kottayam for postmortem examination. P.W.18 continued the investigation. The accused was arrested by him at 5.45 PM on 19.7.2002 from the tharawad house of the accused situated in Sasthamkoikkal. After completing investigation, charge sheet was laid against the accused by P.W.19.
3. After hearing, the charge was framed against the accused to which he pleaded not guilty. P.W.1 to P.W.19 were examined and Exts.P1 to P31 were marked. M.O.1 to M.O.6 were also identified. When accused was examined under Section 313 Cr.P.C. he contended that the prosecution case is not true. No evidence was adduced on the side of the defence. A portion of the statement of P.W.4 occurring as contradiction was marked as Ext.D1. After hearing both sides and after analysing the evidence, the learned Sessions Judge found the appellant guilty, convicted Crl.A.No.346/07 4 and sentenced as mentioned earlier.
4. Smt.Saritha Chunkath, learned counsel for the accused- appellant contends that the learned Sessions Judge did not consider certain important aspects which would prove the innocence of the accused. The fact that there was no eye witness to the incident and the case was based purely on circumstantial evidence and so the burden was entirely on the prosecution to prove each link in the chain of circumstances was omitted to be considered by the court below. The conduct of the appellant in not attempting to escape from the scene of occurrence and the further fact that even according to the prosecution, the accused was taken to the police station on 18.7.2002 itself were also not properly considered by the learned Sessions Judge. All independent witnesses turned hostile. That also should have been taken into account to doubt the prosecution case. The learned Public Prosecutor Sri.Nazar resisted the argument and supported the impugned judgment. The following points arise for consideration:
1) What was the cause of death?
2) Was the motive proved?
3) Whether the presence of the accused in the room adjacent to Crl.A.No.346/07 5 the scene room would prove a link in the chain of the prosecution case?
4) Whether recovery of blood stained M.O.1 axe from the adjacent room immediately after the incident would connect the accused?
5) Could the prosecution prove all the links in the chain of circumstances to prove the complicity of the accused?
6) Whether the conviction and sentence passed against the appellant are unsustainable on any of the grounds urged by the appellant?
Point No.1
5. P.W.11, the Assistant Professor of Forensic Medicine, Medical College Hospital, Kottayam has deposed that the postmortem on the body of the deceased was conducted by him at 2.15 PM on 18.7.2002. The following ante mortem injuries were found on the body of the deceased Neelakandan Nambudri.
1. Incised wounds with contused margins 5 x 1 cm horizontal on the right side of head 10 cm above right ear. Skull bone underneath showed cut and fractures.
2. Partly incised and partly lacerated wound 11 x 6 cm on the right side of head 4 cm above and behind right ear. Bone Crl.A.No.346/07 6 underneath showed cut and fractures.
Underneath injuries Nos. 1 and 2, brain was lacerated and showed subdural and sub-archnoid haemorrhage bilaterally.
3. Incised wound 7 x 2.5 cm skin deep with bevelling backwards 9 cm behind the right ear.
4. Incised would with contused margins 5 x 2 cm muscle deep oblique on the top of shoulder 5 cm inner to the top oint of the shoulder.
5. Incised would with contused margins 4 x 2 cm muscle deep oblique on the top of left shoulder 9 cm inner to top point of shoulder.
6. Incised would 5 x 1 cm skin deep oblique on the top of left shoulder 6 cm inner to top point of shoulder.
7. Multiple contused abrasions 18 x 14 cm on the right side of back of trunk 5 cm below the top of shoulder. Right ribs 2 to 6 fractured on the back.
It was testified by P.W.11 that the injury Nos.1 and 2 mentioned above are fatal in nature and that they are independently sufficient in the ordinary course of nature to cause the death of the victim. It was also stated by him that injuries 1 to 3 could be caused by M.O.1 axe and stated further that all the ante Crl.A.No.346/07 7 mortem injuries mentioned above could be caused by hitting or striking with M.O.1- axe. As requested by the police officer, the scalp hair of the deceased was taken separately and was handed over to the police. In the light of the evidence given by P.W.11 and the injuries noted in Ext.P17, there can be no doubt that Neelakandan Nambudri had a homicidal death. It is also found that those injuries could be caused by M.O.1 axe. The point is found accordingly.
Points 2 to 4:
6. It was contended by the prosecution that because the deceased declined to vacate the house, the accused finished off his brother. It is vehemently argued by the learned counsel for the appellant that even P.W.4, the only witness who supported part of the prosecution version did not state that there was any quarrel or altercation between the deceased and the accused so as to contend that there was strong motive for the accused to cause the death of his elder brother. The learned Public Prosecutor would point out the statement given by P.W.4 that just two days prior to the incident the accused had given to her an ultimatum. It is put in her own words:
Crl.A.No.346/07 8
Learned counsel for the appellant would argue that even according to P.W.4 the deceased had assured that he would vacate the house within two months and so it cannot be imagined that the accused would have murdered his elder brother who was staying in the very same house for a quite long time. One cannot normally see into the mind of another. What is the emotion which impels another to do a particular act is not expected to be known by another. It is possible that such impelling factors would remain undiscoverable. How the mind of the accused works in a particular situation, something which is within the exclusive knwoledge of the accused, cannot be expected to be proved.
7. Motive is an important circumstance in the prosecution which is based on circumstantial evidence. However, we do not see any such strong motive on the part of the appellant in this case and therefore we reject the argument that there was a strong motive on the part of the appellant so as to commit the murder of the deceased (See also the decision of the Supreme Crl.A.No.346/07 9 Court in Niranjan Panja v. State of West Bengal [ (2010) 6 SCC 525]. Even if it is held that the motive alleged by the prosecution is not so strong, if there are clinching items of evidence pointing to the guilt of the accused, the mere fact that the prosecution has not been able to prove the motive may not by itself be fatal. Similarly, the mere existence of motive is not enough to find the accused guilty since motive alone cannot take the place of proof.
8. It is a case where P.Ws.1 to 3, 5 to 9 and 13 betrayed the prosecution. Out of them, P.Ws.1 to 3 and 7 were examined by the prosecution to prove the fact that the accused who was seen in the house when they reached the scene told or confessed to them that he had given 3 or 4 blows to the deceased. But since those witnesses resiled from their statements, the prosecution is deprived of that extra-judicial confession which the prosecution wanted to make use of.
9. The learned Public Prosecutor would submit that P.W.1, the neighbour who lodged Ext.P1 statement immediately within one or two hours; namely, at 8 AM on the day of occurrence also has chosen to unscrupulously deny the version given by him in Ext.P1. On going through the evidence of P.W.1, we have no Crl.A.No.346/07 10 hesitation to hold that he actually perjured before court. It was admitted by him that he had gone to the police station and a statement was given by him and his signature was obtained. But he wanted to contend that such a statement was obtained by the police at about 1 PM. That contention is fallacious in view of the fact that the FIR was registered by P.W.17, the S.I. of Police at 8 AM. Learned counsel for the accused would submit that Ext.P1 did not come into existence at 8 AM. For that purpose she would submit that the FIR reached the court only at 6 PM on 19.7.002.
It is further submitted by the learned counsel that no explanation was offered by P.Ws.17 or 18 as to why that much delay was caused. However, in this case, the fact that there was delay in the FIR reaching the court may not be of that much relevance or significance since immediately after registration of the FIR P.W.18 proceeded to the scene and conducted the inquest. Ext.P23, the inquest report prepared by P.W.18 would show that the inquest was started at 10 AM and concluded at 12.30 PM. On going through Ext.P18, there can be no doubt that the crime was registered prior to the starting of the inquest and that it was based on the FIR, P.W.18 rushed to the place of incident.
10. It is also pointed out by the learned Public Prosecutor Crl.A.No.346/07 11 that even in Ext.P18 the statements of the some of the neighbours and panchayatdars were recorded, which would leave no room for suspicion that it was immediately after the registration of the FIR P.W.18 went to the scene-house. It is also submitted by the learned Public Prosecutor that even at the time of inquest it was stated that it was the accused who caused the murder of deceased Neelakandan Nambudri. But the learned counsel for the accused has rightly submitted that the statements of the witnesses contained in Ext.P18 cannot be used at all by the prosecution and that whatever was found by the investigating officer at the time of preparation of the inquest alone can be gone into. But the learned Public Prosecutor would submit that Ext.P23 has been relied upon only to show that the FIR was not ante-timed. The circumstances obtained in this case would lead to the inevitable conclusion that Ext.P22 FIR was registered at 8 AM on 18.7.2002 itself.
11. In Ext.P23, the detailed description of the scene of occurrence has also been noted. Illathumadom house consists of ten rooms including three bedrooms. Deceased Neelakandan Nambudri as usual slept in the eastern room of the northern part (It is the north-eastern room). P.W.4 has stated that as the Crl.A.No.346/07 12 accused was having back pain, she did not sleep in that room, but slept in the adjacent room. Exts.P18 Scene mahazar and P23 inquest report would show that there is a door on the southern wall of the aforesaid bedroom where deceased Neelakandan Nambudri slept. But that room was locked from inside and therefore there was no possibility of anybody entering through that door. It was stated by P.W.4 that on the previous night she slept in the southern room. A slight confusion is there with regard to the actual room where P.W.4 slept on the previous night. The relevancy arises since she says that it was in that room the blood stained axe was found. In Ext.P23 it was stated that the room immediate to the west of the scene room is a store room. There is a door leading to that store room. It was lying open. The store room was a very tiny room. It was mentioned that near to the corner of the store room, besides a few articles like spade, broom-stick etc., M.O.1 axe was also seen kept. It was specifically noted:
P.W.18 was fully satisfied that it was with that axe the fatal blows Crl.A.No.346/07 13 were given to the deceased. In Ext.P23, it was also noted:
The description of the axe and other factors would make it indubitably clear that it was with M.O.1 the fatal blows were given to the deceased. It has come out in evidence that blood stains and brain matters, and the scalp hair found on M.O.1 were taken out separately in a plastic cover for the purpose of sending it for chemical examination. P.W.11, the doctor who conducted postmortem has deposed that the scalp hair with blood of the deceased was collected and handed over to the police in a sealed condition.
12. It was deposed by P.W.4, wife of deceased Neelakandan Nambudri that in the early morning on 18.7.2002 at about 5.30 AM, she woke up as usual and went outside to attend her daily routine domestic work. While going out she took her chappels from the bedroom where her husband was sleeping and she closed the door when she went out. Thereafter, she went to the cow shed and removed the cow dung and when she was returning she saw the door of the bedroom of the deceased which was closed by her, lying open. When she went there she saw her Crl.A.No.346/07 14 husband lying on the cot having sustained deep injuries on the back of his head. She suddenly came out and made hue and cry. She could then see the accused standing in the adjacent room. M.O.1 blood stained axe was near him. She immediately reacted, ...................................................... and then she came out of the room and cried for help. She immediately went to the neighbouring houses to inform the matter and sought their help to take the deceased to the hospital. According to her, P.W.1, the neighbour, on getting information, went to Perumpetty Police Station and lodged Ext.P1 first information statement. P.W.4 has further stated that at that time the accused was informing others over phone, ............................................ According to her, the accused inflicted the injuries on the head and other parts of the body of the deceased with M.O.1. P.W.4 did not then realise the fact that her husband had breathed his last. It is quite natural; she became fatigue, seeing the horrifying and shocking scene.
13. This is the main piece of evidence which is relied on by the prosecution to prove the guilt of the accused. Apart from this, the prosecution also wanted the court to rely upon the recovery of M.O.6 lungi. According to P.W.18, the accused was arrested Crl.A.No.346/07 15 from the tharavad house of the accused at Sasthamkoikkal at 5.45 PM on 19.7.2002. P.W.18 states that when questioned the accused give information regarding the place where he had kept the lungi which was worn by him at the time of the incident. As pointed out by the accused M.O.6 was seized, P.W.18 deposed.
14. Learned counsel for the appellant assails the evidence given by P.W.18. Even according to the prosecution, on hearing the hue and cry of P.W.4, so many persons had come to that house. In Ext.P23 inquest report detailed description of all rooms was given by P.W.18. The articles found in each of those rooms were also noted. Hence it is quite unlikely that M.O.6 which was there could have escaped the notice of P.W.18. It cannot be said that it was within the exclusive knowledge of the accused so as to 'discover' the same pursuant to the information given by the accused. The learned counsel would also draw our attention to the fact that even according to P.W.4 and other witnesses, the accused was taken to the police station in the morning of 18.7.2002 itself. That will belie the theory of P.W.18 that the accused was arrested on 19.7.2002 at 5.45 P.M. We agree with the learned counsel for the appellant that the evidence given by P.W.18 that the accused was arrested on 19.7.2002 at 5.45 PM Crl.A.No.346/07 16 cannot be true. If so, the case advanced by P.W.18 that the accused gave the information that M.O.6 was kept by him in the room adjacent to kitchen also cannot be accepted. Had M.O.6 been in that room near the kitchen, it could not have escaped the notice of P.W.4 and P.W.5 nor could it have been lost sight of by P.W.18 when he made a detailed report of the same room in Ext.P23.
15. Since P.W.18 had already seen and seized M.O.1 from the room adjacent to the scene of occurrence on 18.7.2002 itself, the information alleged to have been given by the accused pertaining to M.O.1 subsequent to the same cannot be admitted under Section 27 of the Evidence Act.
16. The next question is regarding the presence of blood on M.O.6. Learned counsel for the appellant would argue that if the accused had caused the fatal injuries with M.O.1 axe, certainly blood must have been found on all parts of the body of the accused. But, even according to the prosecution, blood was found only on the two sides and the lower portion of M.O.6. It was not specifically stated at how many places the blood was seen nor about the dimension of the blood stained portion. It is pertinent to note that P.W.18 did not request the expert to get the blood Crl.A.No.346/07 17 group matched to ascertain the blood group. The blood group of the deceased was proved to be B positive. If so, why P.W.18 did not make a request to ascertain the blood group of the blood stains found on M.O.6, is the pertinent question posed by the learned counsel, Smt.Saritha. As blood matching was not done, it could not be proved that M.O.6 contained the blood of the deceased. Learned counsel for the appellant would further submit that according to P.W.4 and other witnesses, the accused was taken into custody by the police in the morning of 18.7.2002 itself. Even if it is accepted that the accused had kept M.O.6 lungi in the room in his house illathumadom, and gone to the police station only after changing the dress, still there is no evidence to show that the accused had washed off his hands or other parts of the body. It is reasonable to infer that there was every chance of his hands and other parts of the body stained with blood, had he been the actual assailant. P.W.18 did not venture to ascertain whether the accused had washed his body before he was taken to the police station. Had the accused not washed his hands and other parts of the body, certainly the blood stains would have been on his body, and if so, there was no reason why the body mahazar of the accused was not prepared and why the blood Crl.A.No.346/07 18 stains were not taken from the body of the accused by using cotten or other materials. That, according to the learned counsel, would have been a clinching circumstance to connect the accused. Since that was not done, another link is missing in the chain of circumstances.
17. As stated earlier, the story putforward by P.W.18 that the accused was arrested only on the next day at 5.45 PM, that too from another place, does not inspire confidence in the mind of the court especially when the evidence given by P.W.4 and other witnesses would show that the accused was taken into custody by the police in the morning of 18.7.2002 itself. There is one more aspect to be said with regard to M.O.6. No witness did say that they saw the accused wearing M.O.6 immediately after the incident (when they reached there on hearing the outcry). Nobody deposed that M.O.6 belonged to the accused or that the accused was seen wearing M.O.6. Therefore, there is no iota of evidence to show that M.O.6 was of the accused. That link is also lost, the prosecution now laments.
18. Yet another circumstance projected by the prosecution to prove the complicity of the accused in the commission of this crime is the alleged conduct of the accused. The evidence of Crl.A.No.346/07 19 P.W.4 is to the effect that after the incident when the neighbours reached there, on hearing her outcry, the accused was informing others over phone that he had finished off his brother. It was stated by P.W.4 that she heard the accused telling ................................................ But the learned counsel for the appellant would draw our attention to Ext.D1, a portion of the statement given by her to the police, which was to the effect that she did see the accused informing the relatives over phone regardng the death of his elder brother. In other words, the accused had only informed his relatives about the death of his elder brother and nothing more. The statement given by her in evidence, which has been quoted earlier, was not her statement to the police. Therefore, the learned counsel would submit that the statement now given by P.W.4 in court can only be an embellishment and that in the teeth of Ext.D1, the evidence given by P.W.4 to the effect that the accused had informed his relatives over phone that he had finished off his elder brother cannot be accepted. In this connection, it is also pointed out that though the case of the prosecution was that the accused had told his neighbours that he had given 4 or 5 blows to his elder brother, nobody deposed in that line. All of them chose to resile Crl.A.No.346/07 20 from the statement given to the police. Therefore, the prosecution could not connect the accused with the commission of crime with any of those circumstances. In the light of what has been stated above, the learned counsel for the appellant is justified in her submission that the present version of P.W.4 in court regarding the so-called confession made by the accused to others over phone should not persuade the court to believe the prosecution case as true.
19. It was also contended by the defence that P.W.4 was not consistent with regard to the room where she did see the accused after the incident immediately after she returned to the scene room. At one place it was stated by her that she saw the accused in her bedroom. It was stated by her that she had slept during the previous night, in the southern room. The room immediate to the south of the bedroom of the deceased was in a permanently locked condition. But the prosecution tried to explain stating that from the bedroom of the deceased, there is a small room lying immediate to its west and from that room there is an entry to the southern room which was used as a bedroom. So if P.W.4 had slept in that room, it can be said that it was the south-western room. To that effect, P.W.4 has also explained it Crl.A.No.346/07 21 at another place. But if that was the room where she had slept, then it would run counter to the case of the prosecution that the accused was seen by P.W.4 in that bedroom, the defence contends. Such minor inconsistencies cannot be projected to throw over board the evidence given by P.W.4. It was explained by her that the room which was used by her as bedroom was used as a store room also. As could be seen from Ext.P23 inquest report and Ext.P18 scene mahazar, M.O.1 axe was seen in the northern corner of the store room. Since the officer who prepared Ext.P23 could see sufficient blood stains at the place where M.O.1 axe was seen kept in a slanting position, there would be no difficulty to hold that it was at that place M.O.1 was kept. According to P.W.4, the accused was seen in that room near M.O.1 axe.
20. In this connection learned counsel for the accused would submit that there was no difficulty for the accused to escape from the scene if in fact murder was committed by him. According to the learned counsel, the normal conduct of an accused would be to leave the scene immediately lest he should be apprehended by others or by the police. But admittedly the accused was very much present in that house itself. Therefore, though the Crl.A.No.346/07 22 prosecution would try to project it as a strange conduct on the part of the accused, an equally strange conduct of the accused was putforwarded by the defence also. From the conduct of the accused alone, it is not possible to hold that it was so unusual or unnatural that in all probability the crime should have been committed only by the accused and none else.
21. It is contended by the defence that no finger print was taken from M.O.1, which could have thrown light as to the person who must have done the crime. Whether finger prints were able to be traced or not could have been ascertained only if such an attempt was made. Admittedly, no such attempt was made. Therefore, the argument advanced by the learned Public Prosecutor that considering the surface of M.O.1, it was not possible to trace out finger prints cannot carry much weight.
22. Graver the crime, greater should be the degree of proof required. Suspicion however strong is no substitute for proof. True, P.W.4 is to be treated as a truthful witness. But she is not an eye witness to the incident and as such the case purely rests on circumstantial evidence.
23. The learned counsel for the accused would submit that the accused is actually an inmate of that house. The house Crl.A.No.346/07 23 actually belongs to them. He and his wife and son are residing in the very same house. His wife, examined as P.W.5, did not support the prosecution. The reason is quite obvious. The fact that when P.W.4 reached the scene -room, she could see the accused in the adjacent room cannot lead to any inference that it was the accused who did the crime. The fact that near the place where he was seen standing, M.O.1 axe was also seen cannot make the case of the prosecution strong since even according to P.W.4, the accused was not seen holding or carrying M.O.1 axe in his hand. Learned counsel would submit that it can as well be a case where M.O.1 axe had been kept there by somebody earlier to the accused reaching that room and that on seeing the ghastly scene the accused must have become shocked and stunned and stood there without noticing the fact that M.O.1 axe was also there in that room. The fact that the accused could not tell anything to P.W.4 or that he did not make anyoutcry or alarm on seeing that scene also according to the learned counsel cannot lead to any inference that it was an unusual conduct on the part of the accused to fasten the criminal liability on him. In any event, that is no reason to hold that it was the accused who did the crime. It may, of course, give rise to a suspicion against the Crl.A.No.346/07 24 accused.
24. Learned counsel for the accused would also submit that Ext.P17 postmortem certificate or the evidence given by P.W.11- doctor does not show the exact or approximate time of death of the deceased. If the version of P.W.4 that she could see her husband alive at about 5.30 AM when she had been to his bedroom for taking her chappels is accepted, then there may not be any difficulty to hold that it was only in between 5.30 AM to 5.45 PM, the death of Neelakandan Nambudri could have occurred. But the learned counsel would submit that there is no evidence to show that when P.W.4 had been to the bedroom of the deceased, she had put on the light for taking her chappels. In all probability she would not have put on light lest she should disturb her husband's sleep. So, according to the learned counsel for the appellant, the death of Neelakandan Nambudri could have also happened prior to P.W.1's entry into the bedroom for the purpose mentioned above. If chappels were not exactly beneath the cot the possibility of the chappels getting blood stained would have been there. But there is no clear or precise evidence regarding that fact. The attempt made by the learned counsel for the accused is that an outsider also could have entered the Crl.A.No.346/07 25 building at some point of time and after inflicting the fatal blows, he could have gone out and while so leaving he must have forgotten to close the door.
25. Learned Public Prosecutor has vehemently argued based on the unusual conduct of the accused at that point of time. Even though the accused was present in the very same house at the relevant time, he did not make any alarm nor did he try to contact the neighbours or to get any vehicle to take his elder brother to the hospital to save his life. On the other hand, the accused was proceeding to the cow shed with a pot for milking. According to the learned Public Prosecutor, it can never be the conduct of a brother had his hands been not bloody. It is true that the conduct of the accused as aforesaid was seen to be not normal or usual. Being the brother he would hurry to the neighbouring houses or to get in touch with his friends or associates over phone or otherwise to see whether the life of his brother could be saved, but he did not tell anything to P.W.4 or anybody else with regard to the same. This, according to the prosecution, is a strong circumstance against the accused. In this context the evidence given by P.W.4 that the accused was in fact seen contacting his relatives and others over phone stating that Crl.A.No.346/07 26 his brother had been finished off by him assumes importance, the learned Public Prosecutor submits. The learned Public Prosecutor is also well justified in his submission that on going through the evidence given by P.W.4 it would leave no doubt that what P.W.4 deposed in court is the unvarnished truth. During cross examination, a suggestion was put to the effect that she or her associates had done this crime and that P.W.4 happened to enter the bedroom of the deceased again as she had forgotten to take her chappels. The suggestion as put by the defence, according to the prosecution, is actually the 'most unkindest' of all. If she had any intention to falsely implicate the accused, she would have stated that she had seen the accused inflicting the injuries or at least that she had seen the accused coming out with blood stained axe. She did not say so. She only deposed what she did see and nothing more. Therefore, there can be no difficulty to hold that what P.W.4 deposed in court is true and that her evidence can be accepted as true. But being a case based on circumstantial evidence, her evidence alone may not be sufficient to prove the complicity of the accused since P.W.4 did not see the accused inflicting the fatal blows nor did she see the accused coming out of the scene room holding or carrying M.O.1 axe. In Crl.A.No.346/07 27 the absence of such evidence, it was all the more imperative on the part of the prosecution to prove that all the links do form a complete chain. It was also pointed out by the learned counsel for the appellant that, if in fact, the accused had confessed or told others that he had given the fatal blows or finished his brother, that could have been proved by getting the telephone call details and questioning the persons to whom such calls were made at the relevant time. But it seems, though one or two near relatives who had been informed over phone relating to the death of the deceased were examined, they did not depose in court in support of the prosecution. In other words, they did not tell the court that the accused had confessed regarding the commission of the crime. Therefore, the prosecution could not prove that link also to make it a complete chain.
26. It is submitted by the learned counsel for the accused that from the descriptions given with regard to the scene room and the other rooms available in the house 'Illathumadom', it can be seen that the store room is lying immediate to the west of the scene room. Two bedrooms were lying to the south of the store room mentioned above. Immediate to the east of these two bedrooms, there is a hall. Still to the south of that hall, there is a Crl.A.No.346/07 28 leanto to the west of that room. No mention was made as to whether there is a door leading to the bedroom immediate to the south of the store room. Dining hall lies to the north of the leanto. The kitchen lies to the north of the dining room. It is seen that there is another leanto (room) on the northern part which was seen lying in east west direction. The total number of rooms in the whole building was shown as 10. It is pointed out by the learned counsel for the accused that it was not stated that there is a door from the store room leading to the bedroom lying immediate to the south or a door from that bedroom to the bedroom immediate to the south. Learned counsel is perfectly justified in commenting upon the total non-application of mind made by the Village Officer who prepared the plan though it was stated that the plan was prepared in accordance with the scene mahazar. Except showing the scene room, other particulars are not seen noted in the plan. The defence would submit that since the case is purely based on circumstantial evidence, it was the bounden duty of the prosecution to prove that it was not possible for an outsider to gain entry into that house. According to the defence, an outsider could have entered into any of those rooms and remained there hiding himself and later when he got an Crl.A.No.346/07 29 ideal time, he did the crime and left the scene leaving the axe in the adjoining room. That case, according to the learned counsel, cannot be ruled out. It is pointed out that there is a door leading to the eastern hall from the court yard on the east. It is contended that there is no acceptable evidence to show whether that exit door was locked from inside so as to exclude or rule out the possibility of an outsider gaining entry into that building. It was not stated in Ext.P23 whether there existed doors leading to the big hall from the two southern rooms mentioned above. It ought to have been specifically noted in order to arrive at a conclusion that it was not possible for any other person to have access to the scene bedroom or to the room just adjacent to the same.
27. It is also argued that it was not elicited through P.W.4 as to the door through which she had gone out in the early morning to attend the domestic work nor was it brought out in her evidence through which door she had entered the building. The description in Ext.P23 would show that there is a staircase leading to the attic or to the upstair portion. Whether there was possibility for any other person to gain access to any of the rooms in that building through any such doors also should have Crl.A.No.346/07 30 been enquired into. That was not done.
28. In this connection, it is also argued by the learned counsel for the accused that Ext.P23 and the evidence on record would show that the deceased was seen lying in a prone position and wearing a mundu upfolded and tucked. P.W.4 has stated that it was not the usual practice of the deceased to lie or sleep in that position. Since the incident took place in the month of July and house is situated almost in a hilly area, it would be a cool weather and so it cannot be said that one would lie in such a position; the lunki kept upfolded and tucked. If so, according to the defence, that also would give rise to some suspicion. How the deceased happened to lie or sleep in that position is beyond the comprehension of the prosecution also. In other words, the prosecution could not explain the same.
29. The learned Public Prosecutor would submit that when the accused was examined under Section 313 Cr.P.C. all the incriminating materials brought out in the prosecution case were put to him. When he was asked to state about the case he only stated that he was in the cow shed, milking the cow in the morning and on hearing the cry and alarm made by P.W.4 he reached the room. The accused did not specifically offer any Crl.A.No.346/07 31 explanation why he did not go in search of vehicles or try to contact his friends or neighbours to get a vehicle to take the deceased to the hospital; but only a statement was made that he happened to reach there on hearing the cry of P.W.4. According to the prosecution, how he happened to be seen in the room adjacent to the scene bedroom when P.W.4 reached there was not satisfactorily explained by him. It is true that in a case based on circumstantial evidence when the circumstances are put to the accused when examined under Section 313 Cr.P.C. he is bound to explain the circumstances appearing against him because those factors would be within the special knowledge of the accused.
30. But it is trite law that Section 106 of the Evidence Act does not relieve the prosecution of the duty to prove its case beyond all reasonable doubt. Section 106 would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference (see the decision in Vikramjith Singh v. State of Punjab [ (2006) 12 Crl.A.No.346/07 32 SCC 306]. Learned counsel for the appellant has also relied upon the decision of the Supreme Court in Sharad Birdichand Sardar v. State of Maharashtra (AIR 1984 SC 1622) wherein the character and essential proof required in a criminal case which rests on circumstantial evidence were stated. It was held:
"It is well settled that the prosecution's case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the Court where various links in the chain of circumstantial evidence are in themselves complete".
31. Smt. Saritha would submit that it is a case where the links are seen snapped and scattered and the circumstances relied upon by the prosecution do not make a complete chain. While appreciating the circumstantial evidence, the court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances (see the decision of the Supreme Court in Musheer Khan @ Badshah Khan v. State of Madhya Pradeh [ (2010) 2 SCC 748]. The circumstantial evidence has Crl.A.No.346/07 33 been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches." vide Musheer Khan's case.
32. Learned counsel for the accused submits that the evidence regarding the recovery of M.O.6 lunki is not of much relevance for the reason that the blood group found on the same was not attempted to be tested, to find out whether it was B positive which was the blood group of the deceased. It is also contended by the defence that since the accused was in the very same house after the deceased was seen with bleeding injuries, the possibility of the lunki getting blood stained from the scene of occurrence also cannot be ruled out. The fact that the accused did not offer any explanation how M.O.6 happened to be blood stained cannot be given that much importance to hold that he is guilty of offence, learned counsel for the accused submits. In any event, since it is not proved that the blood stains seen on M.O.6 was B positive, it cannot be said that M.O.6, even if it is proved, to be of the accused, would lead to any inference that it was the accused who committed the crime. In this connection, it is also pertinent to note that the prosecution did not venture to bring through P.W.4 or from any other witness that M.O.6 was the Crl.A.No.346/07 34 lunki worn by the accused at the time when he was seen in the room adjacent to the scene room or immediately thereafter. No attempt was made to get M.O.6 identified in that manner. Therefore, there is dearth of evidence to hold that M.O.6 was the lunki actually worn by the accused or that it belonged to him. In the absence of any such evidence, the recovery of M.O.6 from the room adjacent to the kitchen cannot in any way help the prosecution to prove the complicity of the accused. Therefore, what remains with regard to M.O.6 is that the same (M.O.6) was seized by P.W.18 from the room adjacent to kitchen of Illathumadom. There is no evidence to show that M.O.6 was kept by the accused at that place. There is also no evidence to show that M.O.6 was the lungi used by the accused at any time immediately after the incident. The blood stains found on M.O.6 was not proved to be B positive, the blood group of the deceased. Therefore, the recovery of M.O.6 also does not help the prosecution.
33. Now what remains is only the belief or suspicion entertained by P.W.4, that it might be the accused who committed the crime. That belief may be true. Suspicion, however strong, cannot take the place of proof. There is a long Crl.A.No.346/07 35 distance to travel from "may be true" to "must be true". The accused-appellant is entitled to the benefit of reasonable doubt. As such, the conviction and sentence passed against him are to be set aside.
34. In the result, this Criminal Appeal is allowed. The conviction and sentence passed against the appellant are set aside. He is acquitted of the offence charged against him. He is set at liberty. He shall be released from jail forthwith, if his detention is not required in connection with any other case.
PIUS C.KURIAKOSE, JUDGE.
N.K.BALAKRISHNAN, JUDGE.
srd Crl.A.No.346/07 36