Kerala High Court
A.P.Mohandas @ Mohan vs State Of Kerala on 28 April, 2009
Author: T.R. Ramachandran Nair
Bench: T.R. Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE T.R. RAMACHANDRAN NAIR
&
THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
WEDNESDAY, THE 13TH DAY OF FEBRUARY 2013/24TH MAGHA 1934
CRL.A.No. 831 of 2009 ( )
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AGAINST THE JUDGMENT IN SC.477/2005 of ADDL.DISTRICT COURT (ADHOC)-II,
PALAKKAD DATED 28-04-2009
AGAINST THE ORDER/JUDGMENT IN CP.90/2003 of J.M.F.C.- I, OTTAPPALAM
DATED 00-00-0000
APPELLANT(S)/ACCUSED:
----------------------------------------
A.P.MOHANDAS @ MOHAN
S/O.CHAMI, ATHANIPARAMBIL VEEDU, CHUNANGAD
OTTAPALAM TALUK.
BY ADV. ADV.RAJESH K.RAJU[STATE BRIEF]
RESPONDENT(S)/COMPLAINANT:
----------------------------------------------------
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
REPRESENTING THE C.I OF POLICE, OTTAPALAM.
R1 BY ADV. PUBLIC PROSECUTOR SHRI K.K. RAJEEV
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 5-02-2013,
THE COURT ON 13/2/2013 DELIVERED THE FOLLOWING:
APPENDIX
COPY OF THE JUDGMENT OF THE ADDL. SESSIONS JUDGE (FAST TRACK II),
PALAKKADD IN S.C. NO.477/2005 DATED 28.4.2009
// TRUE COPY //
P.S. TO JUDGE
T.R.RAMACHANDRAN NAIR &
A.V. RAMAKRISHNA PILLAI, JJ.
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Crl.Appeal No. 831 of 2009
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DATED THIS THE 13th DAY OF FEBRUARY, 2013
JUDGMENT
Ramachandran Nair, J.
The sole accused in S.C. No.477/2005 on the file of the Additional Sessions Judge (Fast Track Court No.II), Palakkad is the appellant herein. The offences alleged against the accused are punishable under Sections 305, 306 and 376 I.P.C. The prosecution case, in a nutshell, is that the appellant committed rape of a 13 year old girl Kumari Saritha and she became pregnant out of the same. She along with her father Bharathan and mother Saraswathy committed suicide on 17.3.2003 between 10 a.m. and 5 p.m. It is alleged that the accused is responsible for the commission of suicide by them. The prosecution examined Pws.1 to 18 and Exts.P1 to P22 and Mos. 1 to 4 have been marked in evidence. The case diary contradiction in the testimony of PW.2 was marked as Ext.D1.
2. The accused was found guilty by the learned Sessions Judge of all the offences and he was sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- and in default, to undergo rigorous imprisonment Crl.A.No.831/2009 -2- for one year; for offence punishable under Section 305 I.P.C., to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year; for the offence under Section 306 I.P.C., to undergo rigorous imprisonment for eight years and to pay a fine of Rs.15,000/- and in default of payment of fine, to undergo rigorous imprisonment for two years for the offence under Section 376 I.P.C., the sentences to run concurrently.
3. The prosecution case is entirely depended upon circumstantial evidence. The appellant appeared through State Brief, learned counsel Shri Rajesh K. Raju and learned Public Prosecutor Shri K.K. Rajiv appeard for the State.
4. Learned counsel for the appellant submitted that the prosecution has failed miserably to establish the required proof to connect the accused in respect of the offence under Section 376 as well as under Sections 305 and 306 I.P.C. Learned counsel submitted that there is no reliable oral or medical evidence to support the allegation that the accused had committed rape on the deceased Kumari Saritha. It is submitted that even though it was found that she was pregnant more than 9 months, the prosecution failed Crl.A.No.831/2009 -3- to conduct DNA test to establish that the accused had any connection in the matter, especially with the parentage and the absence of the same will strike at the root of the prosecution case. It is submitted that the witnesses examined had no direct knowledge to support the allegation of rape. They are having only hearsay information with regard to the alleged pregnancy and nobody has spoken about any interaction between them at any point of time as well as any access leading to any sexual assault on the deceased Kumari Saritha. It is also submitted that Ext.P2 which is produced by the prosecution and relied upon as a suicide note of Kumari Saritha does not reveal that the accused was responsible for the impregnation. It is therefore submitted that it will not be safe to rely upon the same to convict the accused for such a serious charge. With regard to the offences under Sections 305 and 306 I.P.C. also, it is submitted that the evidence is so scanty and there is no evidence of any overt or otherwise exhortation, urge or intentional act on the part of the accused to show any abetment. It is therefore submitted that unless and until the prosecution is able to establish the elements required to constitute abetment within the meaning of Section 107 I.P.C., there cannot be any conviction under Sections 305 and 306 I.P.C. At any rate, the learned counsel submitted that the appellant is Crl.A.No.831/2009 -4- entitled for benefit of doubt. Lastly, it is submitted that he has already undergone about four years of imprisonment and even if this Court finds the complicity of the appellant, the sentence may be reduced to that already undergone by him.
5. Learned Public Prosecutor opposed the arguments of the learned counsel for the appellant, by submitting that all the offences have been proved in evidence. It is submitted that the proved circumstances form a chain and therefore it is not a case where there is a break in the chain of circumstances, entitling the appellant for the benefit of doubt. It is submitted that the oral evidence adduced in the case will show that the accused was seen by some of the witnesses in the house of the deceased on certain occasions and coupled with the same, the suicide note will pin down the appellant's complicity in the matter. Learned Public Prosecutor, after referring to the deposition of various witnesses, submitted that this is a case where the family had to commit suicide because of the commission of offences including rape by the accused alone. Learned Public Prosecutor heavily relied upon the fact that the access to the house of the deceased which the appellant was having, as spoken to by certain witnesses will be sufficient to attract the offence under Section 376 I.P.C. as none else is Crl.A.No.831/2009 -5- responsible for the impregnation of the deceased Kumari Saritha. It is submitted that some of the witnesses are near relatives and are having knowledge in the matter and therefore the culpability of the accused has clearly been established. It is submitted that there is clear evidence to show the instigation on the part of the appellant for abetment of suicide and therefore the elements under Section 107 I.P.C. have been proved and consequently it attracts offences under Sections 305 and 306 I.P.C. It is submitted by the learned Public Prosecutor that the absence of a DNA test is not fatal.,
6. All the three were found dead on 17.3.2003 and the cause of death, going by Exts.P10, P13 and P14 postmortem reports, is that they died of Carbofuran poisoning. It is the toxic ingredient of the insecticide sold under the trade name 'furadan'. P.W.5, the brother of the deceased Kumari Saritha, when came back from the school, found that the doors of the house are closed and her footware was remaining outside. Nobody was responding to his calls. He alerted P.W.2, who also made efforts, but without any success. Thereafter, they went to P.W.1, brother of deceased Bharathan who came along with them apart from P.W.3, another brother of deceased Bharathan and another 20 people collected there. After making Crl.A.No.831/2009 -6- efforts to open the doors, they could see through the hole that the three were lying there and three glasses and one bottle were placed near them. Later, the Police came and on their verification three glasses, one pepsi bottle and one packet of furadan were found near the dead bodies. This is the manner in which they had described the scene.
7. We will now discuss the oral evidence of the important witnesses, viz. Pws.1 to 5 and 11, which the prosecution is relying on. The First Information Statement is given by the brother of the deceased Bharathan who has been examined as P.W.1. He was alerted by P.W.5 Sangeeth who is the only remaining member in the family, viz. the son of deceased Bharathan and brother of deceased Kumari Saritha. P.W.1 was informed about the incident when P.W.5 and P.W.2 Jayaprakash came together to his house on 17.3.2003 at 6 p.m. He is residing = km. away from the house of his brother Bharathan. He along with them and others went to the house, and saw, after pushing the closed door that all the three are lying dead. After the Police came, he could obtain a full glimpse of them. His version before the court as regards the complicity of the accused is the following:
According to him, the death was caused by the accused and the reason for it is that deceased Kumari Saritha became pregnant through the accused. Crl.A.No.831/2009 -7- This fact came to the knowledge of P.W.1, 3 or 4 days before the death as per the talk among the people in the locality. The deceased Bharathan was working in a quarry and the accused was having sale of arrack. He also identifies the handwriting of deceased Kumari Saritha in Ext.P2 series, viz. the suicide note and another letter. In the cross examination he deposed that deceased Kumari Saritha was studying in the 7th standard in school. He has also deposed that he instructed his younger brother (deceased Bharathan) not to allow the accused to enter his house due to his wayward character, but his brother replied that no such complaint is there as regards the accused. It is stated that this happened 3 or 4 days before the date of death. He does not remember the identity among the woman folk in the locality who gave information regarding the pregnancy of Kumari Saritha. He also stated that the accused was seen there occasionally, but he is unable to confirm the dates.
8. P.W.2 is the immediate neighbour of the family of the deceased, who has been residing in the nearby residential building. He was alerted by P.W.5, after he returned from the school that nobody is seen in the house but the footware of his sister is seen outside and both of them went there to check up. Nobody was responding to their calls, and the door was seen Crl.A.No.831/2009 -8- locked from inside. Thereafter he describes the further details, as spoken to by P.W.1, of the efforts taken to open the house. Finally, they found all the three lying dead after consuming poison. The crucial evidence relied upon by the learned Public Prosecutor with regard to his information regarding the complicity of the accused, as deposed in the chief examination, is that according to him, on the previous day of the death, he heard a loud talk while he was brushing his teeth. It was a quarrel between the deceased Bharathan and accused Mohanan and deceased Bharathan was seen telling the accused that a decision should be taken on that day itself with regard to Kumari Saritha, if not, they will commit suicide on the next day. The accused immediately came out and went away. With regard to the complicity of the accused, it is deposed that he had occasion to see the accused in the house of deceased Bharathan several times, viz. while deceased Bharathan was there and on occasions when Bharathan was absent and even while the girl was alone. With regard to the crucial information regarding the impregnation of Kumari Saritha, his version is that he heard it from others that the accused was responsible for the impregnation and also for commission of suicide by them. In the cross examination, he stated that the accused is residing approximately 1 km Crl.A.No.831/2009 -9- away from the house of deceased Bharathan and he has been residing along with his wife and children. The other residential buildings, apart from the residential house of P.W.2 and deceased Bharathan, are situated about 200 metres away. In the cross examination, he further stated that his information that Kumari Saritha was pregnant, is hearsay. He denied the suggestion that the accused is not responsible for it.
9. P.W.3 is another brother of deceased Bharathan. In chief examination he states that he knew the accused and he had seen him in the residential house of deceased Bharathan. He also stated that he knew from nearby people that the accused has been visiting the house of deceased Bharathan while Bharathan was not there. He had occasion to instruct the deceased Bharathan not to permit it, and the accused was also instructed by him not to go to the house of Bharathan when Bharathan was not there. It is further deposed by him that deceased Bharathan had told the accused that the accused is responsible for the pregnancy and he should remedy it, but the reply was that he cannot do anything and it is open to Bharathan to do whatever he thinks and therefore the accused is responsible for causing the death by suicide. He explained in the cross-examination towards the end that the above is a hearsay information. In the cross examination he also Crl.A.No.831/2009 -10- stated that the accused is residing 1 km. away from the house of deceased Bharathan and that deceased Bharathan alone was going for work and his wife deceased Saraswathy would be always in the house. He does not remember the date, month or year in which he had told the deceased Bharathan about the matter concerning the accused. According to him, he has seen the accused sitting in the house of deceased Bharathan once. The reason for committing suicide is that the family could not face the public after the news about the pregnancy was spread. The fact that Kumari Saritha was pregnant came to his knowledge only after the death as told by the local people. He also deposed that with regard to the matter concerning the pregnancy of Kumari Saritha, he had no occasion to talk to deceased Bharathan. The details of the talk between deceased Bharathan and the accused on the previous day of the death was also told by others. Till their death Bharathan or his wife had not made any accusation or complaint about the accused.
10. P.W.4 is the wife of one of the brothers of deceased Bharathan. She is only having hearsay information from others about the impregnation of Kumari Saritha, going by the details in the chief examination and she identifies the handwriting of Kumari Saritha Saritha in Ext.P2 series. Crl.A.No.831/2009 -11-
11. P.W.5 is the brother of deceased Kumari Saritha who was studying in Xth standard at the time of examination in court. Therein, he speaks about the events on the date of death and he further identifies the handwriting of his sister in Ext.P2 series. When he came back from the school, nobody was seen outside and the door was found locked from inside. He sought the help of P.W.2 and later they went to P.W.1. While peeping through the hole, all of them were found lying inside. In the cross examination he has stated that both of them used to go to the school together and were coming back together and the father alone was going for work and mother would always be in the house. He has not spoken anything about the complicity of the accused in the entire matter, including the pregnancy as well as suicide.
12. The other witness who has been examined to support the prosecution case is P.W.11 who is stated to be a neighbour of deceased Bharathan. According to him, the accused Mohanan was seen often in the house of the deceased while the deceased Bharathan was available there and even in his absence. He has also stated that there was a talk in the locality that the accused was responsible for the impregnation. In cross examination, he stated that his residential house is situated 250 - 350 Crl.A.No.831/2009 -12- metres away from the house of deceased Bharathan. Deceased Bharathan's house cannot be seen directly from his house and that Bharathan's wife Saraswathy was not going for any work, doing any job and would be there in the house. He does not remember the date, month or year in which the accused was seen in the residence of Bharathan but he has seen him during day time on several occasions. He also deposed that the information about the pregnancy is hearsay.
13. P.W.17 was working as Sub Inspector of Police at the relevant time. He deposed that the case was registered based on the statement given by P.W.1, as Crime No.93/2003 of Ottappalam Police Station under 'un- natural death' and Ext.P1(a) is the F.I.R. The inquest was conducted at 10 a.m. in the morning on 18.3.2003. Ext.P7 series are the reports. On 18.3.2003 a report was submitted to the court adding offences under Sections 305 and 306 I.P.C. which is marked as Ext.P16. On 23.3.2003 a further report was submitted as per Ext.P17 adding the offence under Section 376 I.P.C. and the accused was arrested at 4 p.m. on the said date.
14. The prosecution case is entirely depended upon circumstantial evidence. It is the contention of the learned counsel appearing for the appellant that the circumstances relied upon by the prosecution are totally Crl.A.No.831/2009 -13- insufficient to connect the accused. According to the learned counsel, the circumstances should lead to the only hypothesis, i.e. to the guilt of the accused which is absent here and the chain of evidence is not complete. He elaborated the arguments by referring to the missing links in the evidence adduced in the matter.
15. The first submission was that the offence under Section 376 has not been proved as against the accused. Learned Public Prosecutor relied upon the evidence of P.Ws.1, 2, 3, 4 and 11 in this context which according to him, will support the allegation that the deceased Kumari Saritha was impregnated by the accused.
16. We have considered the rival arguments. To prove the offence under Section 376, there is no direct evidence either oral or medical. The oral evidence of the witnesses are relied upon to show that the accused was seen in the house of the deceased occasionally. As rightly pointed out by the learned counsel for the appellant, there is no evidence worth to show the access, if any, the accused was having with the deceased Kumari Saritha; any interaction between them or any evidence regarding any sexual assault or even an allegation to that effect. None of the witnesses speak about these matters and about the previous instances, if any, to prove Crl.A.No.831/2009 -14- the intimacy developed between the accused and the deceased Kumari Saritha Saritha, leading to her pregnancy. Therefore, the absence of evidence regarding these aspects is clear. Then the question is whether the testimony of the witnesses relied upon by the prosecution is sufficient.
17. In fact, while sifting through the evidence of Pws.1, 2, 3 4 and 11 it can be seen that the information obtained by them regarding the impregnation of deceased Kumari Saritha through the accused is totally hearsay. The information reached them only few days prior to the date of commission of suicide (within 3 or 4 days prior to the same) as revealed from the people in the locality and they have deposed that the talk in the locality was that the accused was responsible for the pregnancy. They have not spoken in clear terms about any of the details which led them to the only conclusion that the accused alone is responsible for the impregnation. The deposition of P.W.1 will only show that he knew about the fact that the deceased Kumari Saritha was pregnant 3 or 4 days prior to the death as told by the people in the locality. According to him, he had seen the accused in the house of deceased Bharathan. He is unable to recollect the date. This alone is the evidence of P.W.1 with regard to the said aspect. In fact, learned counsel for the appellant submitted that Crl.A.No.831/2009 -15- P.W.1's version about the reaction of the deceased Bharathan, when he told him that the accused is of a loose character and he should not be allowed any entry in the house, was that no such defect is seen in him. The above is heavily relied upon to contend that the prosecution story about the accusation against the accused, has no legs to stand.
18. P.W.2 who is an immediate neighbour, has also not spoken anything about the access or intimacy and other circumstances between the parties to pinpoint the fact that the accused alone is responsible for the pregnancy. Only deposition before the court is that he has seen the accused coming to Bharathan's house on several occasions, while Bharathan was there and even while he is absent and even while the deceased Kumari Saritha was alone. He is also having only hearsay information about the complicity of the accused regarding the same. He has also spoken that he has seen the other relatives of Bharathan often visiting the house. He is a close neighbour and it is evident from his deposition that the nearby residential houses other than that of P.W.2 are at a distance of 200 metres away. P.W.3 is only having hearsay information about the pregnancy.
19. We have already discussed the evidence of P.W.11. The learned Public Prosecutor heavily relied upon the evidence of P.W.11 to sustain the Crl.A.No.831/2009 -16- charge under Section 376 I.P.C. The evidence of P.W.11 will also show that his information regarding the impregnation of deceased Kumari Saritha is only hearsay, viz. a talk in the locality. He has only spoken to the fact that he had occasion to see the accused coming to the house of deceased Bharathan. In the cross examination he has clearly stated that his house is about 250 - 350 metres away that of deceased Bharathan and Bharathan's house cannot be directly seen from his house. He does not know the date, month or year on which he saw the accused in Bharathan's house. The learned Public Prosecutor submitted that the family, when faced with a situation like this, will only conceal the matters and hence the evidence adduced is sufficient. But when the case is set up only on circumstantial evidence, the chain of circumstances should be complete and should lead only to the conclusion of guilt of the accused.
20. After going through the above oral evidence relied upon by the prosecution, we are of the view that the same is not sufficient to establish the offence under Section 376 I.P.C. The only evidence is that the witnesses have seen the accused coming to the house of deceased Bharathan on stray occasions. Beyond that, they have not spoken anything leading to the commission of sexual assault on her by the appellant. The Crl.A.No.831/2009 -17- information regarding pregnancy came to them just prior to the commission of suicide, that too as a talk in the locality. All of them have only hearsay information about the pregnancy of deceased Kumari Saritha also. Such hearsay information cannot at all be relied upon. Her postmortem examination and the evidence of P.W.6 will show that the foetus was 36 weeks old. The alleged rape was therefore committed at least 9 months prior, for which no evidence is there. Therefore, there is no clear, cogent and convincing oral evidence regarding the complicity of the accused with regard to the pregnancy of deceased Kumari Saritha. The only witness from the family, viz. P.W.5 who is the brother of deceased Kumarti Saritha, has not spoken anything about the acquaintance, if any, she was having with the accused. He was aged 13 years at the time of examination in the court. Nothing is spoken by him against the accused. The prosecution has not attempted to elicit anything with regard to this crucial aspect from him. Therefore, the cumulative effect of the oral evidence is only that he was seen on stray occasions in the house of deceased Bharathan. He was engaged in sale of arrack, according to P.Ws.1 to 3.
21. The next aspect is regarding the non-availability of medical evidence to connect the accused. Herein, learned counsel for the appellant Crl.A.No.831/2009 -18- submitted that the foetus was more than 9 months old at the time of postmortem examination which is clear from the postmortem report concerning deceased Saritha, but no attempt was made to ascertain the paternity. The Doctor has been examined as P.W.6. Ext.P3 is the postmortem report. It will show that the foetus was 36 weeks old, i.e. more than 9 months. With regard to DNA analysis, in cross examination he has stated the following:
"No sample was taken for DNA analysis of foetus since it was not requested. When a foetus is seen in the dead body of a female the foetus will be examined to ascertain for its intra utrine age and also to the extent that whether that pregnancy has caused or contributed to the death of mother. If the DNA analysis of the foetus is done whether that will enable to decide on the paternity of the child? (Q) As the death of the foetus has occurred more than 18 hours prior to the commencement of autopsy the inability of tissues for preservation for DNA test can be of no use. Further DNA analysis of foetus for estimating for paternity the tissues of blood of alleged father has to be available for the test. There was no request by the police to conduct DNA test in this case."
It will show that there was no request by the Police to conduct DNA test in this case. Learned Public Prosecutor argued that the death of foetus Crl.A.No.831/2009 -19- occurred more than 18 hours prior to the autopsy and therefore it was impossible to conduct the DNA test. But significantly, even though there are indications that the investigation revealed that she was pregnant after the body was found, no request was made by the Police to conduct DNA test at the right point of time. The evidence of P.W.17 is also crucial in this regard. He was the Sub Inspector of Police who had investigated the case initially. He was cross examined about the matter and he replied that after the conduct of postmortem, it was revealed that deceased Saritha was pregnant and there is no specific reason for not seeking DNA test. To a question from court, he answered that for conducting DNA test lot of expenses are involved and the question is whether who will remit the same. He repeats that when the doctor who conducted postmortem was questioned, it was revealed that deceased Saritha was pregnant and by that time the body had already been cremated. In the postmortem report it is stated that she was pregnant. To a specific question whether foetus was sought to be preserved, the answer was that the postmortem report was received after that part of the investigation conducted by him and he had conducted the investigation only for one week. It is also stated that the inquest report of deceased Saritha was not prepared by him. Crl.A.No.831/2009 -20-
22. Even though learned Public Prosecutor submitted that the DNA test could not be conducted in the light of the above circumstances, it can be seen that the fact that she was pregnant, has been revealed by P.W.1 while giving the first information statement. It was recorded at 3 a.m. on 18.3.2003. The inquest report dated 18.3.2003 shows that Shri Devarajan who has been examined as P.W.11 in court was questioned at that time and had given a statement that there was a talk in the locality that deceased Saritha was pregnant.
23. In fact, we notice that the consistent case of P.Ws.1, 2, and 3 is that after they found the inner door locked, somebody informed the Police and the Police came within one hour. According to P.W.2, somebody from the party office informed the Police. All of them are unanimous in deposing that after the Police came, the scene was examined and the suicide note, Ext.P2 was also found from the body of deceased Bharathan. In cross examination, P.W.2 stated that the Police came at about 6 p.m. on 17.3.2003. But in the deposition of P.W.17, the investigating officer, he has stated that after the F.I. Statement was recorded at 3 a.m. on 18.3.2003 alone, the Police reached the scene. They came at 5 a.m. and a Guard was posted and they did not enter the house at that time.
Crl.A.No.831/2009 -21-
24. Learned counsel for the appellant relied upon the decision of the Apex Court in Vijayan v. State of Kerala {(2008) 14 SCC 763} in this context and submitted that the absence of a DNA test to ascertain the paternity as against the accused is fatal to the prosecution case, as no other evidence is there against him to prove the commission of rape. Therein, the prosecutrix was aged 17 years and was a neighbour of the appellant. The offence alleged was under Section 376 I.P.C. There was a delay of 7 months in lodging the complaint and at the time of filing the complaint she was carrying a child of seven months and after 8 months the prosecutrix delivered a child in the hospital. While examining various aspects including the impact of the delay in lodging the F.I.R., the Apex Court held as follows:
"If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR, it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant accused was responsible for the said incident of rape and that the appellant accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accused."
Crl.A.No.831/2009 -22-
Therefore, the absence of conduct of DNA test to find out whether the child was born out of the incident of rape, was also a circumstance found in favour of the accused.
25. Herein, thus, there is no medical evidence to connect the accused with the paternity regarding the matter. We have already considered the oral evidence and found that the same is insufficient to establish the charge under Section 376 I.P.C. against the appellant. Coupled with the same, the absence of a DNA test in a matter like this, is also crucial. Therefore, neither oral evidence nor medical evidence is there to prove the offence under Section 376 I.P.C.
26. The other offences against the appellant are under Sections 305 and 306 I.P.C. With regard to these, it can be seen that the allegation is one of facilitating the commission of suicide by the deceased Kumari Saritha as well as her parents. The evidence available and relied upon by the prosecution on this score, is the oral evidence contained in the deposition of P.Ws.2 and 3 as well as the suicide note Ext.P2 series. It was P.W.2 who deposed that on the date previous to the date on which they committed suicide, he heard an altercation between the appellant as well as the deceased Bharathan. He heard Bharathan telling the accused that if no Crl.A.No.831/2009 -23- decision is taken on the said day with regard to Kumari Saritha, they will commit suicide on the next day. It is also stated that the accused immediately went away. Learned counsel for the appellant points out that the said circumstance will show that it will not lead to the inference that he had instigated the commission of suicide. Thus, it is submitted that none of the elements of Section 107 I.P.C. are attracted.
27. Learned Public Prosecutor relied upon the two limbs of Section 107 I.P.C., viz. First as well as Thirdly. The Section reads as follows:
"107. Abetment of a thing.-- A person abets the doing of a thing, who--
First-- Instigates any person to do that thing; or Secondly-- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly-- Intentionally aids, by any act or illegal omission, the doing of that thing."
Explanation 2 reads as follows:
"Explanation 2-- Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act."
Crl.A.No.831/2009 -24-
28. We will now examine the decisions of the Apex Court and this Court which have explained the ingredients necessary to attract the offence under Section 107 I.P.C. In Sanju alias Sanjay Singh Sengar v. State of M.P.{(2002) 5 SCC 371} their Lordships considered the ingredients necessary to constitute "instigation" under the first limb. In para 6 it has been held as follows:
"6. Section 107 I.P.C. defines abetment to mean that a person abets the doing of a thing if he firstly, instigates any person to do that thing; or secondly, engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or thirdly, intentionally aids, by any act or illegal omission, the doing of that thing."
In fact, in the said case, the allegation was that the appellant had used abusive language and had reportedly told the deceased "to go and die". With regard to the said aspect, the Apex Court explained, in para 12, the legal position thus:
"Even if we accept the prosecution story that the appellant did tell the deceased "to go and die", that itself does not constitute the ingredient of "instigation". The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to Crl.A.No.831/2009 -25- stimulate or incite. Presence of mens rea, therefore, is the necessary concomitant of instigation. It is common knowledge that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea. It is in a fit of anger and emotion." (emphasis supplied by us) Thus, it is clear from the above dictum that there should be incitement or urging to do some drastic action and therefore the presence of mens rea is required. Significantly, it was held that the words uttered in a quarrel or on the spur of the moment cannot be taken to be uttered with mens rea.
29. In a similar case, viz. Cyriac v. S.I. of Police (2005 (3) KLT
673) where the accused asked the deceased "why can't you go and die"? this Court examined the necessary ingredients required for attracting Sections 107 and 306 I.P.C. and in paragraphs 8 to 11, the principles have been discussed which are reproduced below:
"8. It is clear from the above discussion that to constitute `instigation', a person who instigates another has to provoke, incite, urge or encourage doing of an act by the other, by goading or urging forward. Going by the dictionary meaning (vide Oxford Advanced Learners Dictionary, Sixth Edition) the word `goad ` means, `keep irritating or annoying somebody until he reacts.' So also, `urge' means ` to advise or try hard to Crl.A.No.831/2009 -26- persuade somebody to do something or to make a person to move more quickly in a particular direction especially by pushing or forcing' such person. `Urge forward' means in this context, `urge' a person `forward'. Thus, a person who instigates another has `to goad or urge forward' the latter, with intention to provoke, incite, urge or encourage doing of an act by the latter.
9. A close, combined reading of the meaning of the word `instigation' with the meaning of the terms `goad' and `urge' will reveal that `instigation' involves two things. One is a physical act or omission, while the other is a mental act. The physical act or omission involved in `instigation' is, `goading or urging forward' another. Such physical act of goading can be committed either by words or deed, as the meaning of the word suggests. `Goading' can be committed also by any other wilful conduct--may be, by even an adamant silence. Thus, by words, deeds wilful omission or wilful silence also, one can goad a person ie., keep irritating or annoying a person until he reacts.
10. So also, the physical act of `urging forward' or `instigation' involves doing of an act by strongly advising, persuading to make a person do something or by pushing or forcing a person in order to make him move more quickly in a forward direction. Thus, both the physical acts in `goading or urging forward' can Crl.A.No.831/2009 -27- be committed by doing some act, either verbal or physical or even by a wilful omission or conduct.
11. But, apart from such physical act or omission, one more factor has to be established to constitute `instigation'. That is a mental act. While a person instigates another by the act of `goading or urging forward', such person must also have, the intention to provoke, incite, urge or encourage doing of an act by the other. Such intention to provoke, incite, urge or encourage doing of an act by the other is an essential factor in `instigation'. A person can be said to have instigated another, if such person, with intention to provoke, incite, urge or encourage the latter to do an act, has goaded or urged forward the other person."
It is evident therefore that there should be an intentional act which should lead to an instigation. On the facts of the said case, it was held that the offence is not attracted. In fact, in para 17 the learned Judge further held that it should be established that the accused intended by such acts consequence of a suicide and it is not enough if the acts of the accused cause persuasion in the mind of the deceased to commit suicide. The legal position was further explained in para 18 thus:
"18. An indirect influence or an oblique impact which the acts or Crl.A.No.831/2009 -28- utterances of the accused caused or created in the mind of the deceased and which drove him to suicide will not be sufficient to constitute offence of abetment of suicide. A fatal impulse or an ill- fated thought of the deceased, however unfortunate and touchy it may be, cannot unfortunately, touch the issue. Those cannot fray the fabric of the provision contained in S.306 IPC. In short, it is not what the deceased `felt', but what the accused `intended' by his act which is more important in this context. Of course, the deceased's frail psychology which forced him to the suicide also may become relevant, but it is only after establishing the requisite intention of accused."
The view taken thus is that it is not what the deceased felt but what the accused intended by his act which is more important in the context of Section 306 I.P.C. We agree with the same.
30. The Apex Court, in later decisions, has reiterated the said legal position in Sohan Raj Sharma v. State of Haryana (2008 (2) KLT 287 - SC) and M. Mohan v. State Represented by the Deputy Superintendent of Police {(2011) 3 SCC 626}. In the first of the decisions, the offence alleged was punishable under Section 306 I.P.C. There was a suicide note also. The relevant paragraphs containing the discussion, are paragraphs 8 Crl.A.No.831/2009 -29- and 10 which are reproduced below:
"8. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under S.306 of I.P.C.
10. S.107 I.P.C. defines abetment of a thing. The offence of abetment is a separate and distinct offence provided in the Act as an offence. A person, abets the doing of a thing when (1) he instigates any person to do that thing; or (2) engages with one or more other persons in any conspiracy for the doing of that thing; or (3) intentionally aids, by act or illegal omission, the doing of that thing. These things are essential to complete abetment as a crime. The word "instigate" literally means to provoke, incite, urge on or bring about by persuasion to do any thing. The abetment may be by instigation, conspiracy or intentional aid, as provided in the three clauses of S.107. S.109 provides that if the act abetted is committed in consequence of abetment and there is no provision for the punishment of such abetment, then the offender is to be punished with the punishment provided for the original offence. 'Abetted' in S.109 means the specific offence abetted. Therefore, the offence for the abetment of which a Crl.A.No.831/2009 -30- person is charged with the abetment is normally linked with the proved offence."
The meaning of the word "instigation" was explained in para 10 and finally in para 11 the requirement of necessary proof of direct or indirect acts of incitement to the commission of suicide, was specified in the following words:
"In cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. The mere fact that the husband treated the deceased-wife with cruelty is not enough. (See Mahinder Singh v. State of M.P. (1995 AIR SCW 4570)."
31. In the recent decision of the Apex Court in M. Mohan's case {(2011) 3 SCC 626}, after considering various decisions of the Apex Court, viz. Ramesh Kumar v. State of Chhattisgarh {(2001) 9 SCC 618}, State of W.B. v. Orial Jaiswal {(1994) 1 SCC 73} and Chiresh Kumar Chopra v. State (Govt. of NCT of Delhi) {(2009) 16 SCC 605}, the legal position was explained thus in paragraphs 44 and 45 which are extracted below:
"44. Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a Crl.A.No.831/2009 -31- positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained.
45. The intention of the legislature and the ratio of the cases decided by this Court are clear that in order to convict a person under Section 306 I.P.C. there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide."
Significantly, the Apex Court was of the view that without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained and that in order to convict a person under Section 306 IPC there has to be a clear mens rea to commit the offence. Therefore, there should be an active act or a direct act which led the deceased to commit suicide seeing no option.
32. Applying the above test to the limb 'Firstly' of Section 107 IPC, it can be seen that the evidence of PWs.2 and 3 cannot help the prosecution to establish that the accused had instigated the deceased to commit suicide. The words spoken to by the deceased Bharathan on that crucial day were that "if no decision is given on the said day, they will commit suicide on the next day" and going by the evidence of PW.2, there was an altercation at Crl.A.No.831/2009 -32- that point of time. But evidently, it can be seen that the accused was totally silent in the scene and he did not retort but simply went away. Such a conduct of the accused on the previous day cannot attract the elements required for satisfying the requirements of Section 107 I.P.C. in the light of the principles stated in the judgments referred to above. It cannot be said that the accused had provoked or incited or urged the deceased to commit suicide. The mental process required are totally absent. There is no direct or indirect act of incitement to the commission of suicide and there is no allegation to that effect. The element of mens rea is totally absent here and the silent manner in which he departed from the house, will not therefore satisfy the test laid down by the principles stated in the above decisions. A positive act on the part of the accused to instigate or aid in committing suicide is totally absent. Therefore, really the evidence is lacking on that aspect.
33. Learned Public Prosecutor by relying upon the decision of this Court in Purushothaman v. State of Kerala (1989 (1) KLT 521) submitted that the clause 'thirdly' of Section 107 I.P.C. coupled with Explanation 2 is clearly applicable here. But we notice that for application of the clause 'Thirdly', one should intentionally aid by any act or illegal Crl.A.No.831/2009 -33- omission, the doing of that thing itself. The argument is that the accused had facilitated the commission of the act. Here also, the legal position as explained by this Court, will not help to advance the argument. In para 16, the whole gamut of the principles covering the area have been discussed. The said paragraph is reproduced below for easy reference:
"16 . S.107 of the IPC which contains the definition of abetment has three clauses, and if an act of a person falls within the purview of any of them it would amount to abetment. The first and second clauses are not germane in this, context and hence the third clause is reproduced here. "A person abets the doing of a thing who intentionally aids, by any act or illegal omission, the doing of that thing". The scope of the word "aids" has been clarified in Explanation-2 which reads thus: "Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act". The said explanation does not say what would or would not amount to "intentionally aids". It only explains what is meant by aiding simpliciter. This means that an act which merely amounts to aiding the commission of an offence is not abetment. The aiding must snow-ball into "intentionally aiding" the doing of a thing. When can you say that a person has intentionally aided the commission of an offence? The commission of the act must be the Crl.A.No.831/2009 -34- dominant intention of the person who aids it. Then only it can be said that he "intentionally" aided it. If there is community of interest between the aiding person and the one who commits the offence, there is possibility to draw the inference that the dominant intention was to aid the doing of that particular act. If the person only knows or has only the reason to believe that his act would facilitate the commission of offence, it cannot be said that his dominant intention was that. Eg:- A tells his brother B who is to undergo a surgery that the surgeon concerned (C) is a greedy person and hence the surgeon must be paid some amount in advance to have the surgery properly done. B pays the amount to C. If the acceptance of the money would amount to an offence, the act done by A in telling his brother is doing something in order to facilitate the commission of the offence. But the intention of A is to have his brother's surgery performed properly although A knows that acceptance of the money by the surgeon is an offence. Here A's suggestion cannot be said to be an act which intentionally aids the commission of the offence. Mukerji, J. has observed in Emperor v. Ram Nath (ILR 1925 Vol.XLVII Allahabad 268) "The intention should be to aid the commission of a crime. A mere giving of an aid will not make the act an abetment of the offence............". The observation made by Batty, J. in Bhagwant Appaji v. Kedar Kashinath (ILR 1901 Vol.XXV 202) is considered to be "one of the best expositions of the meaning of the word intent as used in the Indian Penal Code". The learned Crl.A.No.831/2009 -35- Judge has stated thus (at page 226): "The word intent by its etymology seems to have metaphorical allusion to archery and implies aim and thus connotes not a casual or merely possible result foreseen perhaps as a not improbable incident, but not desired but rather connotes the one object for which the effort is made and thus has reference to what has been called the dominant motive without which the action would not have been taken". This was followed in Phul Kumari v. Sheodahin (AIR 1965 Patna 507). While dealing with the expression "with intent" in S.441 of the IPC the Supreme Court has said that it means the dominant intention. (Vide Mathri v. State of Punjab AIR 1964 SC. 986). The same interpretation can be imported to the similar expression employed in S.107 of the IPC."
It was held that there should be intentionally aiding for doing of a thing and that the commission of the act must be the dominant intention of the person who aids it. It was held that the meaning of the word 'intent' as explained in Bhagwant Appaji v. Kedar Kashinath (ILR 1901 Vol.XXV
202) will squarely apply for the interpretation of Section 107 I.P.C. Therefore, there should be a dominant intention to do the act.
34. Herein, the learned Public Prosecutor argued is that even after the deceased Bharathan told the accused that if he does not do anything, Crl.A.No.831/2009 -36- they may commit suicide, he did not do anything to avoid it. But as we have already discussed, such is not the test laid down by the decisions referred to above which should lead to the applicability of the clause 'Thirdly' of Section 107 I.P.C. We could not gauge anything by way of an intention on the part of the accused for facilitating suicide by any illegal omission also. Therefore the clause 'Thirdly' and Explanation 2 will not apply herein.
35. What remains is the suicide note of the deceased Saritha and the content of the same which is also heavily relied upon by the prosecution. Ext.P2 series are the two letters addressed to the elder brother of deceased Bharathan and written in Malayalam. In the second letter, the translation of the Malayalam version of the crucial sentence will be the following:
"Mohanan is the reason for our death. We are departing".
36. In both letters nothing is stated to the effect that he is responsible for the pregnancy and no further allegations are also there against him. Therefore, we will have to analyse whether the crucial sentence that "Mohanan is the reason for our death" can lead to proof regarding commission of an offence under Sections 305 and 306 I.P.C. In the decision reported in Sohan Raj Sharma's case (2008 (2) KLT 287 - SC) there was a suicide note by the deceased alleging torture on the part of her Crl.A.No.831/2009 -37- husband. The offences alleged were under Sections 107 and 306 I.P.C. The significant part of the letter has been extracted in para 13 which is reproduced below:
"I desired to kill you along with us but no, if you have any sense of shame you will die as a result of the sequence of events. But it do not make any difference for shameless person because these abuses will sound as correct if you realize your capacity. You have not spent even eight days in a period of eight years in peace with me. You yourself are responsible for death of these children. Flowers had been prayed for from the deities of your family regarding whom you disclosed "they are not mine they are with me from my friend (girl friend) on, you, the condemned the day children will be born as a result of co-habitation of a woman with woman, a woman will stop giving birth to man like you."
There is one crucial sentence which is as follows: "You yourself are responsible for death of these children". We have already extracted paragraphs 8 and 10 of the above judgment whereby the principles regarding the meaning of the word "instigate" has been explained by the Apex Court. In para 14, it has been held that "it cannot be said that the ingredients of Section 306 IPC have been established". Like is the situation herein also.
Crl.A.No.831/2009 -38-
37. In Netai Dutta v. State of W.B. {(2005) 2 SCC 659} the Apex Court considered the requirement to constitute an offence under Section 306 IPC wherein also a suicide note and its importance was put by the prosecution against the accused. Therein also in the suicide note, apart from referring to the name of the appellant, no particular allegations were made against the appellant to have committed any wilful act aiding or instigating the deceased to commit suicide. In paragraphs 5 and 6 the legal position has been explained thus:
"5...........An offence under Section 306 IPC would stand only if there is an abetment for the commission of the crime. The parameters of "abetment" have been stated in Section 107 of the Indian Penal Code. Section 107 says that a person abets the doing of a thing, who instigates any person to do that thing; or engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, or the person should have intentionally aided any act or illegal omission. The Explanation to Section 107 says that any wilful misrepresentation or wilful concealment of a material fact which he is bound to disclose, may also come within the contours of "abetment".
6. In the suicide note, except referring to the name of the Crl.A.No.831/2009 -39- appellant at two places, there is no reference of any act or incidence whereby the appellant herein is alleged to have committed any wilful act or omission or intentionally aided or instigated the deceased Pranab Kumar Bag in committing the act of suicide. There is no case that the appellant has played any part or any role in any conspiracy, which ultimately instigated or resulted in the commission of suicide by deceased Pranab Kumar Nag."
Therefore, to attract the offence under Sections 305 and 306 IPC there should be clear abetment and that there should be an intentional act on the part of the accused directly or indirectly and that is not at all evident from the above evidence also. The suicide note also does not indicate, to any extend, any allegation against the accused. Therefore, it cannot be said that the contents of the suicide note make out an offence against the appellant.
38. Thus, a discussion of the evidence adduced by the prosecution will show that the required circumstances have not been cogently established. When a case is entirely depended upon circumstantial evidence, it is well settled that certain essential conditions must be established. The legal position is well settled by various decisions of the Apex Court and from the judgment relied upon by the learned Public Crl.A.No.831/2009 -40- Prosecutor, viz. Sharad Birdhichand Sarda v. State of Maharashtra (AIR 1984 SC 1622). The circumstances from which the conclusion of guilt must be drawn, should be fully established; the circumstances concerning 'must' or 'should' and not 'may be' established; 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; the circumstances should be of a conclusive nature and tendency and they should exclude every possible hypothesis except the one to be proved; and lastly, 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. In fact, in para 156 their Lordships have held further as follows:
"This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction."
Learned counsel for the appellant submitted that the appellant cannot therefore be convicted on pure moral conviction.
Crl.A.No.831/2009 -41-
39. In the light of the above principles also, we are satisfied that the chain of circumstances relied upon by the prosecution are so weak to connect the accused with the commission of the offences alleged. It cannot lead to the only hypothesis of the guilt of the accused. Going by the evidence, the foetus was more than 36 weeks old, viz. 9 months and more. Therefore, the alleged rape would have been committed 9 months prior to the death of deceased Bharathan, his wife and daughter. There is no evidence worth in support of the prosecution case regarding the rape committed at that point of time. As we have already discussed, the prosecution did not attempt any DNA test of the foetus with the blood samples of the accused. Therefore, no evidence worthwhile regarding that is available to connect the accused. When the ingredients under Section 107 are not made out and there is lack of evidence to prove the offence under Section 376 I.P.C., naturally the allegation of commission of offence under Sections 305 and 306 also falls to the ground. At any rate, it is well settled that even if two views are possible, the accused will be entitled to the benefit of doubt. Naturally, this is a case where the appellant is entitled for the benefit of doubt also.
40. The conviction and sentence against the appellant are accordingly Crl.A.No.831/2009 -42- set aside and he is acquitted of all the charges and will be set at liberty, if not wanted in connection with any other case.
41. Before parting with this case, we are constrained to observe certain inadequacies in the investigation on certain aspects. We notice that PW1 gave F.I. statement which was recorded at 3 a.m. on 18.3.2003. The deceased were found dead in their house by about 6 p.m. on the previous day. The witnesses, viz. Pws.1, and 2 have stated that Police had arrived during the evening on 17.3.2003, after being informed and they alone opened the door, recovered the suicide note, etc. In the F.I. statement itself it was stated there is a talk among people that deceased Saritha was pregnant through the accused and because of ill fame, they have committed suicide. The inquest was conducted at 10 a.m. on 18.3.2003 as evident from Ext.P7. One of the witnesses present was P.W.11, Shri Devarajan who also has spoken to the effect that the talk in locality was that deceased Saritha was pregnant and the accused is responsible for the same. The evidence of PW.17 will show that he had recorded the F.I. Statement of PW.1. As already noticed by us, the explanation for not making a request for conducting DNA test and not preserving the foetus is too feeble and the explanation appears to be that for conducting DNA test, so many expenses Crl.A.No.831/2009 -43- are there and who will bear it is another issue. If at all such a requirement was there, orders should have been sought from the higher authorities or from the Government and finally from the court itself. We are constrained to observe therefore that such positive steps should have been taken in this case during investigation. We express our consternation in that regard. It is upto the Government or the authorities concerned to verify these aspects. We have rested our conclusions on the merits of the case, after analysing the whole evidence and not on such inadequacies in the investigation.
The appeal is thus allowed. The Registry will forward a copy of the judgment to the Secretary to Government, Home Department. No costs.
(T.R.RAMACHANDRAN NAIR, JUDGE) (A.V. RAMAKRISHNA PILLAI, JUDGE) kav/