Kerala High Court
K.G.Raveendran vs State Of Kerala on 9 July, 2012
Author: Sasidharan Nambiar
Bench: M.Sasidharan Nambiar, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
MONDAY, THE 9TH DAY OF JULY 2012/18TH ASHADHA 1934
CRL.A.No. 507 of 2009 (C)
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SC.69/2004 of ADDL. DISTRICT COURT (ADHOC)-I, KALPETTA
APPELLANT(S)/IST ACCUSED:
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K.G.RAVEENDRAN
S/O.GOPALAN, APPAPARA, WAYANAD DISTRICT.
BY ADVS.SRI.P.K.RAMKUMAR
SMT.ANITHA MENON
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA
THROUGH C.I. OF POLICE, MANANTHAVADY, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR SRI.K.K.RAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-07-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
M.SASIDHARAN NAMBIAR & P.BHAVADASAN, JJ.
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CRL.A.NO.507 OF 2009
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Dated 9th July, 2012
JUDGMENT
Sasidharan Nambiar,J.
Appellant, the first accused in S.C.69/2004 on the file of Additional Sessions Court-I, Kalpetta filed this appeal challenging his conviction and sentence for the offences under Sections 302 and 201 of Indian Penal Code. He was convicted and sentenced to imprisonment for life and a fine of Rs.25,000/- and in default simple imprisonment for one year for the offence under Section 302 and rigorous imprisonment for two years and to pay fine of Rs.5,000/- and in default simple imprisonment for two months for the offence under Section 201. Second accused was acquitted. The prosecution case is that on the night of 26/1/2003 at 11.30 p.m appellant in CRA 507/09 2 furtherance of common intention with second accused, with whom he is having illicit relationship, strangulated Susheela, his wife and thereafter set fire on her body after placing on the stock of firewood and thereby committed the offences. PW1, Subramanian, brother of the accused lodged Ext.P1 FI statement on 27/1/2003 at 8.30 a.m reporting that his sister-in-law Susheela died due to burns sustained on the midnight of 26/1/2003. Appellant, deceased Susheela and Haritha their six year old daughter were residing in that house during that period. PW2 Hani, the elder daughter was residing in the house of her uncle at that time. Pws.4 to 7 and 18, the neighbours, reached the scene of occurrence on hearing the cry of the appellant. They found the entire firewood stocked near to the house of the appellant was burning. Though Pws.4 to 7 CRA 507/09 3 and 18 attempted to put out the fire, appellant did not join them and he vanished from the scene. While extinguishing the fire, the burnt body of Susheela fell down. PW.21 Sub Inspector who recorded Ext.P1 statement, reached the scene of occurrence and prepared Ext.P13 inquest report and seized Mos.2 to 6 from the scene. PW21 seized Ext.P7 diary maintained by deceased Susheela, from her house at that time. PW21 sent the body of Susheela to Medical College, Kozhikode for postmortem examination. PW12, Dr.Thomas Mathew, Assistant Professor, Forensic Medicine conducted the autopsy on 27/1/2003 and prepared Ext.P17 postmortem certificate certifying that she died due to the burns. PW19 Circle Inspector took over the investigation on 29/1/2003. He prepared Ext.P16 scene mahazar. He arrested the second accused on that day at 4 p.m. PW21 CRA 507/09 4 Sub Inspector arrested the appellant on 29/1/2003. PW13 Dr.N.Sajesh, examined the appellant and prepared Ext.P18 wound certificate, as appellant had sustained injuries in his attempt to escape at the time of arrest. PW19 the successor investigating officer got PW11 Judicial First Class Magistrate to record statements of witnesses under Section 164 of Code of Criminal Procedure. After completing the investigation the charge was laid before the learned Magistrate, who committed the case to the Sessions Court. Learned Sessions Judge made over the case to Additional Sessions Judge for trial.
2. When the charge for the offence under Sections 302 and 201 read with Section 34 of Indian Penal Code was framed, appellant and the second accused pleaded not guilty. The CRA 507/09 5 prosecution examined 21 witnesses and marked 35 exhibits and identified 9 material objects. After closing the prosecution evidence, when the appellant was questioned under Section 313 of Code of Criminal Procedure, he did not offer any explanation and only denied the version of the prosecution witnesses. As it is not a case for acquittal under Section 232 of Code of Criminal Procedure, learned Sessions Judge called the appellant to enter on his defence and adduce evidence. The accused did not adduce any evidence. Learned Sessions Judge on the evidence, acquitted the second accused of all the offences and convicted the appellant and sentenced him as stated earlier. It is challenged in this appeal.
3. Learned counsel appearing for the appellant vehemently argued that there is no substantive evidence to prove the guilt of the CRA 507/09 6 appellant. It was argued that though prosecution has a case that deceased Susheela was strangulated by the appellant along with second accused by exerting pressure after placing MO.9 pillow over her face, there is no evidence to establish the alleged strangulation and the evidence of PW12 disprove the case of strangulation. It was argued that when prosecution failed to prove that deceased Susheela was strangulated and thereafter appellant carried her to the scene of occurrence where fire woods were stocked and placed her body on the fire wood and set fire to it, his conviction is unsustainable. Learned counsel argued that though Haritha, six year old daughter of the deceased was available in the house on that night and her evidence is material, prosecution did not examine her and the non examination is fatal. Learned counsel CRA 507/09 7 argued that none of the prosecution witnesses had given evidence, to prove that appellant either strangulated deceased Susheela or carried her to the scene of occurrence and set fire and learned Sessions Judge should not have relied on Ext.P7 diary, which is not a diary but only a story. It was argued that though Ext.P7 was proved through Mohandas, PW3, the brother of the deceased, contents of Ext.P7 was not proved and therefore, learned Sessions Judge without proof of the contents of Ext.P7 diary, should not have placed any reliance on it. Learned counsel relied on the decision of the Apex Court in Ramji Dayawala & sons (P) Ltd. v. Invest Import (AIR 1981 SC 2084) in support of the said arguments. Learned counsel relying on the decision in Sharad Virdhichand Sarda v. State of Maharashtra (AIR CRA 507/09 8 1984 SC 1622) argued that as there is no eye witness to the incident and the prosecution is based only on circumstantial evidence, each link in the chain of circumstantial evidence should be conclusively proved and the circumstance so proved should unerringly point out the guilt of the appellant and shall also prove that the said circumstances are incompatible with the innocence of the appellant. The argument is that when prosecution case that deceased was strangulated by placing a pillow on her face is not proved, that link in the chain was broken and when one link of the chain of circumstantial evidence is broken, based on the circumstantial evidence, appellant cannot be convicted. Learned counsel also argued that Ext.P17 postmortem certificate with the evidence of PW12 show that internal parts of the abdomen were normal, which rules CRA 507/09 9 out possibility of strangulation and if deceased was not strangulated, she could not be carried from the house to the scene of occurrence or place her on the fire wood to enable the appellant to lit the fire and it therefore, rules out the case of homicide. It was argued that as father and one of the brothers of the deceased admittedly committed suicide and hence death of Susheela could only be suicide and in any event when on the evidence, possibility of a suicide cannot be ruled out and the main link in the chain of circumstance was broken, the circumstances are insufficient to prove conclusively the guilt of the accused, at least the appellant is entitled to the benefit of doubt and therefore, the conviction is to be set aside.
4. Learned Public Prosecutor submitted that learned Sessions Judge rightly relied on CRA 507/09 10 the evidence of PW3 and the entries in Ext.P7 diary. It was argued that evidence of PW3, the brother of Susheela, who is competent to identify the handwriting of the deceased, establish that Ext.P7 diary was written by the deceased Susheela and therefore, the entries in Ext.P7 could definitely be relied on and the entries conclusively establish that the deceased would not have committed suicide. Learned Public Prosecutor also argued that failure of the appellant to explain his absence from the scene of occurrence, after calling Pws.4 to 7 and 18, is a strong link in the chain of circumstance to prove that it could only be the appellant who is responsible for the death of Susheela by setting fire, after placing her on the fire wood stocked near the house. Learned Public Prosecutor also argued that, when the appellant and deceased, apart CRA 507/09 11 from their six year old daughter, alone were in the house, appellant has a duty to explain what really transpired and when the appellant failed to unveil the real facts, as provided under Section 106 of Indian Evidence Act, necessary inference is to be drawn against the appellant that it was he who caused the death of Susheela. It was therefore, argued that there is no reason to interfere with the conviction or sentence.
5. Fact that appellant married deceased Susheela, twelve years prior to the date of incident on 26/1/2003, and PW2 Honey and Haritha aged twelve years and six years respectively at that time, were the two daughters born in that wedlock. It is also not disputed that on 26/1/2003, only the deceased, appellant and Haritha were residing in that house. Evidence of Pws.4 to 7 and 18 that they CRA 507/09 12 are the neighbours and they reached the scene of occurrence on the mid night of 26/1/2003 and they reached there as called by the appellant or hearing his cry and he was present when they reached there and they poured water and put out the fire were not disputed and their evidence on these aspects was not challenged.
6. Evidence of PW1, brother of the appellant establish that he reached the spot on hearing the news on the morning of 27/1/2003 and furnished Ext.P1 FI statement recorded by PW21. PW21 reached there on the morning of 27/1/2003 and sent the body of Susheela for postmortem examination to the Medical College, Kozhikode was also not disputed. Evidence of PW12 with Ext.P17 postmortem certificate establish that PW12 conducted the autopsy between 9.30 am and 10.45 am on 27/1/2003 at Medical College Hospital and found the CRA 507/09 13 following antemortem injuries.
"There was charring of skin and tissues of the top of head and part of both parietal, temporal and occipital areas. Entire face, the whole neck and trunk and both lower limbs upto just above the ankles showed burns and charring which were more over the front aspect. The ankles and feet showed superficial burns with erythema. Both soles partly spared. There were charred blisters seen over both legs, buttocks, back of trunk top of shoulders, neck and face. There was peeling of skin at multiple places over both hands. Due to intense charring, there were multiple heat ruptures over the front of right thigh and back of right arm and elbow, exposing the muscles in these areas which showed a cooked appearance. Multiple areas of heat ruptures CRA 507/09 14 were also seen over front and sides of abdomen, groin, left elbow and left thigh."
Evidence of PW12 with Ext.P17 conclusively establish that Susheela died due to the burns sustained.
7. The question is whether it was suicide, homicide or accidental. At the outset, there is no case even for the appellant that it was an accidental fire. Though it was argued by the learned counsel appearing for the appellant that it is not a case of homicide but suicide, on going through the entire evidence, we cannot accept the submission. Learned Sessions Judge relied on Ext.P7 diary maintained by the deceased, and found that Susheela would not have committed suicide. There is sufficient material in Ext.P7 to indicate that deceased would not have committed suicide leaving behind CRA 507/09 15 the two daughters and that too, the youngest aged only six years. Ext.P7 establish that though her relationship with the appellant her husband was strained, due to his extra marital relationship with the second accused, she asserted that for the sake of her children she has to live and will not abandon her life. Such a woman will not commit suicide. There is thus intrinsic evidence in Ext.P7 to rule out the possibility of suicide. Ext.P13 inquest report prepared by PW21 also establish that it cannot be suicide. At the scene of occurrence, PW21 could find three coconut shells containing kerosene, placed at three different corners of the stock of firewood, which cannot be the work of an individual, if she is committing suicide by setting fire to the woods stocked.
8. Though relying on the decision in Ramji Dayawala's case (supra) learned counsel CRA 507/09 16 argued that by proving only the handwriting in Ext.P7, without proving the contents, the entries in Ext.P7 cannot be relied on, we cannot agree. Honourable Supreme Court in that case was considering the evidentiary value of the contents of a letter, when only the handwriting of the letter was proved and its author was not examined. Relying on the decision of Judah v. Isolyne Bose (AIR 1945 PC
174) question of admissibility of the contents of the letter was considered by their Lordships. In Judah's case decided by the Privy Council, the question considered was whether in the absence of any independent evidence about the testamentary capacity of the testatrix, contents of a letter written by a nurse, could be used to prove want of testamentary capacity of the testatrix. The Privy Council observed that, "the fact that a CRA 507/09 17 letter and two telegrams were sent by itself would not prove the truth of the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence". Relying on the decision of the Privy Council, Honourable Supreme Court held that mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. It was held, "If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can CRA 507/09 18 vouchsafe for the truth of the facts in issue. But in this case Bhikhubhai Gourishankar Joshi who filed an affidavit on behalf of the, appellant has referred to the averments in the letter and the cable. He is a principal officer and constituted attorney of the appellant company. Once the receipt of the letter and the cable are admitted or proved coupled with the fact that even after the dispute arose and before the suit was filed, in the correspondence that ensued between the parties, the respondent did not make any overt or covert reference to the arbitration agreement and utter failure of the respondent to reply to the letter and the cable controverting the averments made therein would unmistakably establish the truth of the averments made in the letter. What is the effect of CRA 507/09 19 averments is a different question altogether but the averments contained in the letter and the cable are satisfactorily proved." That decision is to be appreciated in the light of the facts therein. A letter was relied upon in that case to prove that the arbitration clause was subsisting, though it was later deleted. Their Lordships found that respondent in that case is a petty labour contractor and would not have agreed for arbitration by a foreign arbitral tribunal stationed in Paris, because it was beyond his reach to seek the relief by arbitration in a foreign country. It was found that though a letter was relied on, the author of the letter was not examined and therefore, contents of that letter cannot be relied on. That observation cannot be made applicable to the proof of contents of a diary CRA 507/09 20 written by the deceased. Contents of such a diary can only be proved by the proof of handwriting of the said diary.
9. Evidence of PW3 that Ext.P7 is in the handwriting of his sister Susheela was not challenged. Evidence of PW3 that he had received several letters from the deceased Susheela was also not in dispute. In such circumstances, brother of the deceased, who is competent to prove the handwriting of Susheela, has proved the handwriting in Ext.P7. In such circumstances, when the author of the diary is no more, the contents of Ext.P7 could definitely be relied on to prove as to how the deceased felt on the subject dealt in the diary, Ext.P7 shows that it was written by the deceased narrating the events in her life, including the events which had taken place prior to the marriage, while the deceased was CRA 507/09 21 in love with the appellant, before the marriage, the days when they jointly led a happy marital life and how the relationship got strained and also the attempt of the deceased to reconcile with conduct of the appellant when she found his illicit relationship with the second accused. It also reveals her determination to live for the sake of her children in spite of the betrayal exhibited by the appellant. In such circumstances, Ext.P7 is sufficiently valuable evidence, on the circumstances which lead to her death.
10. Evidence of PW6 that he heard a cry on that fateful night and woke up and he went to the scene of occurrence along with PW7, as called by the appellant was not challenged in cross examination. It was not even suggested to PW6 that appellant did not call him or PW6 did not reach there as called by the appellant. CRA 507/09 22 Though learned counsel vehemently argued that in view of his answer in cross examination that he woke up hearing the cry, it is to be taken that appellant did not call PW6, on the evidence we cannot agree. If appellant had not called PW6 as argued by the learned counsel, his evidence on that fact should have been challenged or at least it should have been suggested to PW6 that appellant did not call him. His evidence in cross examination was only how he woke up on that night. His evidence is that he woke up hearing a cry, but he went to the scene of occurrence as appellant called him. That fact was not challenged. It was also admitted by the appellant, when this evidence was put to him during his questioning under Section 313 of Code of Criminal Procedure. Evidence of PW7 corroborates the evidence of PW6 that they together reached the scene of CRA 507/09 23 occurrence and appellant was present there at that time. They also deposed that appellant was not found thereafter. When the evidence of Pws.6 and 7 were put to the appellant at the time of his examination under Section 313 of Code of Criminal Procedure, he unambiguously admitted his presence. He denied only the evidence of Pws.6 and 7 that appellant was not found thereafter. Evidence of Pws.6 and 7 that appellant did not join their attempt to put out fire was also corroborated by the evidence of PW4 and PW18. Both deposed that appellant did not join them in the attempt to put out the fire and he was not found thereafter. This conduct of the appellant is definitely a strong and valuable link in the chain of circumstances to prove the guilt of the appellant in the murder of Susheela. If it was a case of suicide and appellant was not responsible for the burns CRA 507/09 24 sustained by the deceased Susheela, at least when the neighbours rushed there and attempted to put out fire, appellant would have joined them. In any case, he would not vanish from the scene of occurrence. If the appellant is not responsible for setting fire on Susheela, he would have been the first person to accompany the body of the deceased to Medical College Hospital or at least, he would have received the dead body, after autopsy, from the Medical College Hospital. Evidence of PW1, the brother of the appellant who had obtained the body of Susheela from the Medical College Hospital established that he obtained the body and appellant was not there even at the time of the funeral. It would not have been the case, if appellant was not responsible for the death of Susheela. It is conclusively proved that death of Susheela was neither accidental, nor CRA 507/09 25 suicidal but homicidal.
11. True, being a case solely based on circumstantial evidence, prosecution has to establish that the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis that of the guilt of the accused. The circumstances should be of conclusive nature and tendancy and they should be such as to exclude every hypothesis, but the one proposed to be proved. There must be a chain of evidence so far complete not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. The proved facts should unerringly point out the guilt of the accused and should be incompatible with the innocence of the appellant or involvement of any other person CRA 507/09 26 than the appellant. The position has been well settled in a catena of decisions. Honourable Supreme Court, in Sharad Virdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622) laid down the principles to be established in a case of circumstantial evidence, known as the panchsheela of circumstantial evidence as follows;
"The following conditions must be fulfilled before a case against an accused can be said to be fully established:
1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal CRA 507/09 27 distinction between 'may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the following observations were made:
[SCC para 19, p.807:SCC (Cri) p.1047] Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3) the circumstances should be of a conclusive nature and CRA 507/09 28 tedency.
4) they should exclude every possible hypothesis except the one to be proved, and
5) 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."
The position was reiterated in Padala Veera Reddy v. State of Andhra Pradesh [(1989) Supp (2) SCC 706] as shown in para 15 in page 216 of Sattatiya @ Satish Rajanna Kartalla v. State of Maharashtra (2008 (3) SCC 210).
12. Though learned counsel argued that failure of the prosecution to prove that Susheela was strangulated by the accused has resulted in breaking one of the main link in CRA 507/09 29 the chain of circumstantial evidence, on the facts we cannot agree. When only the appellant, the deceased and the daughter aged six years were available in that house and the appellant did not disclose what really transpired therein, the prosecution cannot prove what really transpired before setting fire to the firewood stocked, for that reason, it cannot be found that the main link in the chain of circumstantial evidence was broken. The conduct of the appellant and his failure to explain what really transpired on that night are strong links in the chain of circumstantial evidence.
13. Honourable Supreme Court relying on the decision in Collector of Customs v. D.Bhoormall (1974 (2) SCC 544), considered the effect of Section 106 of Indian Evidence Act, in a case where the offence took place inside the privacy of a house in Trimukh Maroti v. CRA 507/09 30 State of Maharashtra (2006 (10) SCC 681). It was held;
"Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies CRA 507/09 31 entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
14. The failure of an accused to offer any explanation, when the incriminatory evidence was put to him, in a case based on circumstantial evidence was also considered in Trimukh Maroti Kirkan's case (supra) and held.
"In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind.
The principle is that when an
incriminating circumstance is
put to the accused and the said
accused either offers no
explanation or offers an
explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been CRA 507/09 32 taken in a catena of decisions of this Court (See State of T.N. v. Rajendran (1999(8) SCC 679 para 6); State of U.P v.
Dr.Ravindra Prakadh Mittal (1992 (3) SCC 300 para 39); State of Maharashtra v. Suresh (2000 (1) SCC 471 para 27); Ganesh Lal v.
State of Rajasthan (2002 (1) SCC 731 para 15); and Gulab Chand v.
State of M.P (1995 (3) SCC 574 para 4)."
15. That exactly is the case herein. Appellant, deceased and six year old daughter Haritha alone were there in the house. True, Haritha was not examined. But PW2 the elder daughter when examined turned hostile to the prosecution and even denied the illicit relationship of the appellant with second accused, establishing that daughter is not prepared to depose against father. One could CRA 507/09 33 understand the eagerness of the daughters when they lost their mother and are left behind only by the father. In such circumstances, failure of the prosecution to examine Haritha, the child witness, who was only six years at the time of incident, is not fatal. The proved circumstance establish that even though the neighbours tried to save the deceased by pouring water on the fire, appellant did not join them and vanished from the scene after the neighbours gathered there. That is not the conduct of a husband if he was not responsible for her death. The fact that appellant was not even present at the time of funeral, much less had not gone to the hospital at least to receive the dead body after autopsy show the conduct of the appellant and establish his guilt. When the entire evidence is appreciated in the proper perspective, it is absolutely CRA 507/09 34 clear that deceased Susheela was set fire to by her husband, the appellant, though how exactly the deceased was taken to the scene of occurrence and was placed her over fire wood and whether the deceased was strangulated or was made to fall unconscious was not proved by the prosecution, when it is established that it was not suicide and it was the appellant who set fire on the deceased after placing the body over the firewood stocked, it can only be found that appellant intentionally caused her death by setting fire on her. Though learned counsel vehemently argued that appellant is to be granted the benefit of doubt, a reasonable doubt is not an imaginary, trivial or a mere possible doubt. It must be fair and based upon reason and commonsense. Honourable Supreme Court State of Punjab v. Karnail Singh (2003 (11) SCC 271).
CRA 507/09 35
"Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See :
Gurbachan Singh v. Satpal Singh and others, (AIR 1990 SC 209)). Prosecution is not required to meet any and every hypothesis put forward by the accused. (See State of U.P. v. Ashok Kumar Srivastava, (AIR 1992 SC 840)). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is CRA 507/09 36 argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh and another v. State Delhi Admn.), (AIR 1978 SC 1091). Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315)) CRA 507/09 37 quoted in State of U.P. v. Anil Singh, (AIR 1988 SC 1998).
Doubts would be called reasonable if they are free from a zest for abstract speculation.
Law cannot afford any favourite other than truth. (See : Shivaji Sahabrao Bobade and another v.
State of Maharashtra, (1974 (1) SCR 489)) , State of U.P. v.
Krishna Gopal and another, (AIR 1988 SC 2154) and Gangadhar Behera and others v. State of Orissa, (2002 (7) Supreme 276)". In such circumstances, conviction of the appellant for the offence under Section 302 and 201 of Indian Penal Code can only be confirmed. Learned Sessions Judge only awarded imprisonment for life in addition to the fine of Rs.25,000/- for the offence under Section 302 of Indian Penal Code and rigorous imprisonment for two years for the offence CRA 507/09 38 under Section 201 of Indian Penal Code, which was directed to be run concurrently. In such circumstances, sentence also does not warrant interference.
Appeal is dismissed. The conviction and sentence are confirmed. As learned Sessions Judge omitted to grant set off, appellant is entitled to the set off, as provided under Section 428 of Code of Criminal Procedure for the period he has been in custody in this case, subject to the orders passed by appropriate authority under Section 432/433 of Code of Criminal Procedure.
M.SASIDHARAN NAMBIAR, (Judge).
P.BHAVADASAN, (Judge).
uj.