Kerala High Court
Binu K.C @ Koshy vs State Of Kerala on 19 July, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MRS. JUSTICE M.B. SNEHALATHA
FRIDAY, THE 19TH DAY OF JULY 2024 / 28TH ASHADHA, 1946
CRL.A NO. 936 OF 2019
CRIME NO.730/2017 OF Ranni Police Station, Pathanamthitta
AGAINST THE JUDGMENT DATED 07.03.2019 IN SC NO.363 OF 2017
OF ADDITIONAL SESSIONS COURT - III, PATHANAMTHITTA
APPELLANT/ACCUSED:
BINU K.C @ KOSHY, AGED 43 YEARS
S/O CHACKO THOMAS, C.NO.3348, CENTRAL PRISON AND
CORRECTIONAL HOME, POOJAPPURA, THIRUVANANTHAPURAM,
AND RESIDED AT KUNNATHARA VEEDU, NAITHADOM,
KUMARAMPEROOR THEKKEKKARA, VADASSERIKKARA.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
2 THE INSPECTOR OF POLICE
RANNI POLICE STATION.
BY SMT.AMBIKA DEVI-SPL.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON
28.6.2024, THE COURT ON 19.7.2024 DELIVERED THE FOLLOWING:
Crl.Appeal No.936 of 2019 2
P.B.SURESH KUMAR & M.B.SNEHALATHA, JJ.
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Crl.Appeal No.936 of 2019
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Dated, this the 19th July, 2024
JUDGMENT
M.B.Snehalatha, J This appeal under Section 374(2) of Cr.P.C by the sole accused in S.C.No.363/2017 of Court of Sessions, Pathanamthitta has been filed through the Superintendent of Central Prison, Thiruvananthapuram under Section 383 of Cr.P.C challenging the conviction entered and sentence passed against him for the offence punishable under Section 302 of the Indian Penal Code [IPC].
2. In brief, the prosecution case is as follows:- Sobhana and accused were living together, although they were not legally married, at the residence of the accused at Neythadam, Kumaramperoor. On 26.04.2017 at a time prior to 9.30 pm, the accused murdered victim Sobhana by brutally assaulting her. It is the prosecution case that accused with intent to commit murder caused fatal injuries to the victim by manhandling her and also by Crl.Appeal No.936 of 2019 3 striking her head on the floor and thus committed murder. The motive according to the prosecution is the enmity of the accused towards the victim for not bringing share from her family property.
3. PW1 Reji, who is the brother of the victim laid Ext.P1 First Information Statement based on which PW15, the Sub Inspector of Ranni Police Station registered Ext.P6 FIR. PW17 the Inspector of Police, Chittar Police Station conducted inquest of the dead body and prepared Ext.P2 Inquest Report. He seized the articles found at the scene of occurrence. PW13 the Scientific Officer examined the scene of occurrence, collected the blood stains, hair, etc from the scene of occurrence and prepared Ext.P4 Report. PW17 arrested the accused on 27.04.2017. PW16, the Junior Consultant in Forensic Medicine and Assistant Police Surgeon, General Hospital Pathanamthitta, collected samples of blood of the accused for DNA, nail clippings of the accused, dried blood stains from the face and both hands of the accused, collected scalp and pubic hair in sealed covers and entrusted the same to the Ranni Police. PW18 the Inspector of Police, Ranni filed Ext.P13 forwarding note before the Court for sending the samples to the Forensic Science Laboratory. He completed the investigation Crl.Appeal No.936 of 2019 4 and filed final report against the accused before the jurisdictional Magistrate Court. Upon committal, the learned Sessions Judge framed charge against the accused for the offence punishable under Section 302 IPC. The accused abjured the guilt, alleged false implication, and claimed to be tried.
4. To prove the guilt of the accused, the prosecution examined PWs1 to 18; marked Exts.P1 to P15. MOs 1 to 6 are the material objects. After the closure of prosecution evidence, accused was examined under Section 313(1)(b) Cr.P.C regarding the incriminating circumstances appearing against him in the evidence of the prosecution. Accused denied all such circumstances and maintained that he is innocent. No oral or documentary evidence was produced by the accused.
5. By the impugned judgment, the learned Sessions Judge found the accused guilty of the offence punishable under Section 302 IPC and he was sentenced to undergo imprisonment for life and to pay a fine of ₹50,000/-, in default of payment of fine to undergo rigorous imprisonment for three years.
6. Aggrieved by the conviction and sentence passed against the accused, this appeal has been preferred by the accused challenging the legality and propriety of the finding of Crl.Appeal No.936 of 2019 5 conviction and sentence. The learned counsel for the accused contended that the trial court went wrong in appreciating the evidence; that it is a case which purely rests on circumstantial evidence, the circumstances do not link with each other and there are snaps in the chain. The learned counsel for the accused contended that in a case based on circumstantial evidence prosecution must establish all the circumstances by independent evidence and the circumstances so established must form a complete chain in proof of guilt of the accused beyond all reasonable doubt. But in the case on hand prosecution has failed to establish all the circumstances by independent evidence as required under law, contends the counsel for the accused.
7. Per contra, the learned Public Prosecutor contended that the evidence adduced in this case would clearly show that accused murdered Shobhana, who was residing with him at his residence. The learned Public Prosecutor contended that prosecution has succeeded in establishing the culpability of the accused in the commission of the crime beyond any reasonable doubt and the circumstances are fully established and it is conclusive in nature, which is consistent only with the hypothesis of the guilt of the accused.
Crl.Appeal No.936 of 2019 6
8. The point that arises for consideration is whether the conviction entered and the sentence passed against the accused by the trial court is sustainable or not.
9. There is no direct evidence in this case. The case rests upon circumstantial evidence. Now let us have a look at the evidence tendered in this case.
10. PW1 is the brother of the victim. PW4 is the wife of PW1. Their version is to the effect that on 26.04.2017 at 9.30 p.m while they were at the natal home of PW4 at Vadasserikkara, one Elsy who is a cousin of PW4 informed them that Sobhana and accused are on quarreling terms. After a short while, the said Elsy told them that she received a phone call that Sobhana is dead. On hearing the said news, PW1 felt uneasiness. After sometime, he informed the matter to his brothers residing at Idukki. His brothers reached at 4 am on the next day and all of them together went to the house of the accused. On reaching there, they could see Sobhana lying dead on the floor with bleeding injuries on her forehead. Blood was seen in the floor also. Her torso was seen covered upto knee with an underskirt. According to PW1, at the time when they reached there, Police officials were present there. He further testified that on seeing the dead body they could Crl.Appeal No.936 of 2019 7 gather that it was a murder and accordingly he laid Ext.P1 First Information Statement to the Police. PWs1 and 4 have further testified that the accused is a relative of PW4; and that victim Sobhana was living with the accused from one month prior to the incident on the promise of marriage made by the accused.
11. PW4 has testified that when she met Sobhana, the latter had told her that accused had quarreled with Sobhana demanding share from her family property. According to PW4 accused Binu had also talked to her about his demand for share from the family property of Sobhana. PW1 has testified that his wife namely PW4 had told him about the demand made by the accused for the share of Sobhana in her family property.
12. PW2 Biji who is a neighbour of the accused testified that on 26.04.2017 at 9 p.m accused called him by saying that Sobhana is lying dead and requested him to come with light as there was no light in the house of the accused. Though PW2 tried to contact one relative of the accused, the said relative was not in station. Thereafter, when PW2 along with his wife were standing in their courtyard, accused came to the courtyard of PW2 and told them that Sobhana is lying dead and requested them to bring light to his house. Then PW2 contacted his brother-in-law Raveendran Crl.Appeal No.936 of 2019 8 over phone and asked the latter to reach with the ward member. Accordingly, the said Raveendran came with the ward member viz.PW3 and they together went to the house of the accused. When they flashed the torchlight, they could see victim Sobhana lying on the floor of the house of the accused. The ward member intimated the matter to the police. PW2 has further testified that Sobhana started to live with the accused in the said house prior to one month of the date of incident. He has further testified that accused used to quarrel with Sobhana after consuming alcohol. PW6 who is the wife of Biji also testified in tune with PW2.
13. PW3 who was the ward member of Vadasserikkara Panchayat testified that accused and victim were known to her; that on 26.4.2017 at around 9.15 pm., one Raveendran and Suja informed her that Sobhana, the wife of the accused Binu is lying dead at the residence of the accused and requested her to reach at the house of the accused. Accordingly, she along with Raveendran and Suja reached there with a torch. She further testified that it was a rainy day and there was no power supply in that locality. When she asked the accused to open the door, accused opened the door by saying " എൻ്റ റ ച മര ച ടക ന ." When PW3 flashed the torchlight, accused Binu was standing there Crl.Appeal No.936 of 2019 9 by wearing an underwear alone and the victim Sobhana was found lying dead on the floor in a pool of blood. She immediately informed the matter to the police. She would further say that at the time when the police conducted inquest of the dead body, she was present and signed as a witness to Ext.P2 inquest report. She has also testified that Sobhana had started to live with accused one month prior to the incident; that Sobhana used to draw water from the house of PW3 and in one occasion, she had advised Sobhana that the accused is an alcoholic and he is dangerous fellow while on intoxication. PW3 has identified MO1 to MO4 as the dress and MO5 as the weapon seized by the police from the scene of occurrence.
14. PW5 Shaji is another neighbour of the accused. According to him, on 26.4.2017 at around 7-7.30 pm. while he was at home, accused called PW2 and told him that the wife of accused is lying dead. According to PW5, he reached the spot only when the ward member reached there; that Sobhana was found lying there dead. He would further say that there were injuries on her body. Further he would say that Sobhana started to reside with the accused just prior to one month of the date of incident. Crl.Appeal No.936 of 2019 10
15. PW7 testified that he is running a shop at Edatharamukku; that on the date on which Sobhana died, accused had come to his shop in the noon and had purchased some articles.
16. PW8 and PW9 testified that accused is known to them; that on 26.4.2017 they along with the accused and one Santhosh had engaged in the coolie works entrusted by PW10; that their work was over by noon ie by 12-12.30, that after finishing the work they took a bath from the nearby stream and thereafter they purchased liquor and consumed the liquor together. According to PW8, even before emptying the liquor bottle, accused left the place. According to PW9, after consuming alcohol, he felt sick and therefore he along with Suresh and Santhosh had gone to a hospital and returned from the hospital at 8.45 pm on that day. It was only thereafter he came to know about the death of the wife of the accused. PW9 has further testified that he is residing 20 meter away from the house of the accused; that he used to hear the frequent quarrels between the accused and victim Sobhana.
17. PW10 testified that on 26.4.2017 accused along with three others had engaged in the Coolie work in his house and the work was over by noon.
Crl.Appeal No.936 of 2019 11
18. It is the prosecution case that on 26.04.2017 at a time prior to 9.30 p.m accused brutally assaulted his wife Sobhana and hit her head against the floor, caused fatal injuries and thus intentionally murdered her. To substantiate the prosecution case that Sobhana met with a homicidal death, the prosecution would rely on Ext.P5 postmortem certificate and the evidence of PW14 doctor, Assistant Professor, Medical College Hospital, Kottayam who conducted postmortem of the dead body of the deceased Sobhana. Ext.P5 reads as follows:
1. Contusion 4 x 4 x 0.5 cm on right side of face, overlying jaw bone, 5 cm outer to midline.
2. Contusion 5 x 3 x 0.5 cm on left side of face just above jaw bone and 9 cm outer to midline.
3. Contusion 3.5 x5 x 0.5 cm on right cheek prominence.
4. Contusion 3 x 2 x 0.5 cm on left cheek prominence.
5. Contusion 5 x 4 x 0.5 cm on right side of face and adjacent part of neck just below ear.
6. Contusion 4 x 3 x 0.3cm on front of right ear 2 cm below top of ear.
7. Contusion 5 x 4 x 0.8cm on right side of forehead just above eyebrow and 2.5 cm outer to midline.
Overlying skin and soft tissue showed an area of depression 4x3x0.3 cm.
8. Contusion 5x3x0.5 cm on left side of forehead just above eyebrow and 3.5cm outer to midline. Overlying skin and soft issue showed an area of depression 3x1.5x0.3 cm.
Crl.Appeal No.936 of 2019 12
9. Contusion of scalp 6x5x0.5 cm on right side of head just above ear. Temporalis muscle seen contused underneath.
10. Contusion of scalp 8x4x0.5 cm on left side of back of head 3cm outer to midline and 14 cm above root of neck.
11. Contusion of scalp 7x5x0.5 cm on right side of back of head 3 cm outer to midline and 14 cm above root of neck.
Skull showed multiple fissured fractures on occipital bone. Brain showed subdural haemorrhage on left occipito tempero parietal area and right occipital area and subarachnoid haemorrhage on right tempero parietal area with narrowing of sulci and flattening of gyri.
12. Contusion 1.5x1x0.3 cm on right side of front of neck 4 cm below jaw bone and 2.5 cm outer to midline.
13. Contusion 3 x 3 x 0.5 cm on right side of front of neck 5 cm above root of neck and 9 cm outer to midline.
14. Contusion 3x3x0.5 cm on left side of front of neck, 1 cm above collar bone and 5 cm outer to midline.
On flap dissection of neck bones, cartilages and muscles of neck were normal and intact.
15 Contusion 2 x 2 x 0.3 cm neck on top of right
shoulder 10 cm outer to root of neck.
16. Contusion 2 x 1.5 x 0.2 cm on top of right
shoulder 7.5 cm outer to root of neck.
17. Contusion 5x4x1cm on outer aspect of right arm 14 cm below tip of shoulder.
18. Contusion 6x5x0.5 cm on front of right arm, 3 cm above elbow.
19. Contusion 2 x 0.5 x 0.2 cm horizontal on front of right thigh 6.5 cm below inguinal crease.
20. Contusion 1 x 0.5 x 0.2 cm on front of right thigh 0.5 cm below injury no. 19.
Crl.Appeal No.936 of 2019 13
21. Lacerated wound 16 x 0.2 x 0.1 cm, obliquely placed on inner aspect of right leg, more towards the front, its lower front end 15 cm below knee.
22. Contusion 6x3x0.5 cm on back of right leg 7 cm below knee.
23. Abrasion 1x1 cm on outer aspect of right ankle.
24. Lacerated wound 4x3x0.5 cm on outer aspect of left leg, 8 cm above ankle.
25. Contusion 3 x 2 x 0.5 cm on front of left thigh 3 cm above knee.
26. Contusion 7 x 6 x 0.3 cm on outer aspect of left thigh 12 cm above knee.
27. Contusion 2.5 x 2 x 0.2 cm on front of left thigh 6 cm below inguinal crease.
28. Abraded contusion 7 x 6 x 0.5 cm on back of left elbow.
29. Contusion 3 x 2 x 0.5 cm on outer aspect of left arm 8 cm above elbow.
30. Contusion 3 x 2 x 0.3 cm on right side of front of chest 13 cm outer to midline and 19 cm below top of shoulder.
31. Contusion 3 x 2 x 0.5 cm on lower outer quadrant of left breast.
32. Multiple small horizontal abrasions over an area 2 x 1.5 cm on left side of front of abdomen 11 cm above top of hip bone and 5.5 cm outer to midline covered by reddish brown adherent scab.
33. Multiple small contusion ranging in sizes from 1 x 1 x 0.3 cm to 2 x 2 x 0.5 cm over an area 7 x 4 cm on left side of back of chest 13 cm below top of shoulder and 5 cm outer to midline.
34. Contusion 3 x 2 x 0.5 cm top of hip bone and 8 cm outer to midline.
19. In Ext.P5 postmortem certificate PW14 doctor has opined that victim died due to the blunt injuries sustained to the Crl.Appeal No.936 of 2019 14 head. While examined before the court PW14 doctor has categorically testified that death was due to blunt injuries sustained to the head.
20. There is no challenge over the fact that victim had a homicidal death. From the injuries sustained by the victim noted in Ext.P5 postmortem certificate, coupled with the evidence of PW14 doctor, it stands established that victim Sobhana had a homicidal death. There is also no dispute over the fact that she was found lying dead at the residence of the accused. From the scene of occurrence depicted in Ext.P3 scene plan prepared by PW11 Village Officer and from Ext.P4 report of the examination of the scene of occurrence prepared by the Scientific Officer, Department of Police, DCRG, Pathanamthitta, it stands established that scene of occurrence is a room in the house bearing door No.12/175 of Vadasserikkara Grama Panchayat wherein accused and the victim were living together.
21. It is an uncontroverted fact that the victim Sobhana was residing along with the accused in his residence. Accused in his examination under Section 313(1)(b) Cr.P.C would admit that Sobhana was residing along with him and they were living together.
Crl.Appeal No.936 of 2019 15
22. The case rests on circumstantial evidence and there is no direct evidence. It is a well settled position of law that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and chain of evidence furnished must be complete as not to leave any reasonable doubt for a conclusion consistent with innocence of the accused and the circumstances are to be fully established and should be conclusive in nature to be consistent with the only hypothesis of guilt. All the circumstances cumulatively taken together should lead to the irresistible conclusion pointing only to the accused as perpetrator of the crime.
23. The law regarding nature and character of proof of circumstantial evidence has been settled by several authorities of the Hon'ble Apex court. The locus classicus of the decision is Hanumant vs The State Of Madhya Pradesh (AIR 1952 SC 343) wherein the five golden principles regarding circumstantial evidence has been enunciated by the Hon'ble Apex Court as follows :
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.Crl.Appeal No.936 of 2019 16
(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 tendency, (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."
24. In Sharad Birdhichand Sarda vs. State of Maharastra ((1984) 4 SCC 116) the Apex Court held as follows:
"The facts so established should be consistent only with the hypothesis of the guilt of the accused. There should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. 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."
25. In Ubaidu v. State of Kerala reported in 2016(1) KLD 214 (DB), the Hon'ble High Court of Kerala held as follows:
"When the prosecution relies on circumstantial evidence, all the circumstances from which the conclusion of guilt is to be drawn should be established. The fact so established should be Crl.Appeal No.936 of 2019 17 consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be conclusive and definite, unerringly pointing towards the guilt of the accused. The circumstances should be such as to exclude every hypothesis of innocence of the accused. It is also well settled that it is not necessary that each and every circumstance should be conclusively established but the circumstances should cumulatively form an unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis, then the accused must have the benefit of that hypothesis. However, in adducing the evidence, imaginary probabilities have no role to play.
26. In an umpteen number of decisions Hon'ble Apex Court has held that while appreciating circumstantial evidence, the Court must adopt a very cautious approach and should record a conviction only if all the links in the chain are completely pointing to the guilt of the accused and every hypothesis of innocence is capable of being negatived on evidence. Great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. The circumstance relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused Crl.Appeal No.936 of 2019 18 however far-fetched and fanciful it might be. Nor does it mean that prosecution evidence must be rejected on the slightest doubt because the law permits rejection if the doubt is reasonable and not otherwise.
27. The scrutiny of evidence on record discloses that the following circumstances put forth by the prosecution against the accused have been established by the prosecution.
i) That the victim Sobhana met with a homicidal death on 24.6.2017 at a time prior to 9.30 pm at the house bearing door No. 12/175 of Vadasserikkara Grama Panchayat.
ii) That the victim Sobhana and the accused were living together in the said house from one month prior to the incident.
iii) On 26.4.2017 accused had gone for coolie work and he was present at the workplace till noon and after the work he along with his co-workers viz. PWs 8 and 9 had consumed alcohol and left the place thereafter and he had visited the shop of PW7 on that day.
iv) That on 26.04.2017 at 9.30pm, he called his neighbour PW2 and told that his wife is lying dead at his Crl.Appeal No.936 of 2019 19 house and requested PW2 to come to his house with light as there was no light in his house due to power failure.
28. The learned Public Prosecutor took our attention to the scope of Section 106 of Evidence Act and contended that the victim being the person who was residing with the accused and since she was found murdered at his house in his room at a time when the accused alone was present in the house, there is a duty cast upon him to explain the circumstances under which she met with a homicidal death. It is contended by the prosecution that under Section 106 of Evidence Act accused has a duty to explain the circumstances under which Sobhana met with a homicidal death in their room.
29. Under Section 106 of the Evidence Act where any fact especially within the knowledge of any person, the burden of proving that fact lies on that person.
30. In Shambu Nath Mehra Vs. State of Ajmeer (AIR 1956 SC 404), the Hon'ble Apex Court held that Section 106 of Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish Crl.Appeal No.936 of 2019 20 certain facts which are particularly within the knowledge of the accused.
31. Section 101 of the Evidence Act provides that who ever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that though facts existence. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
32. Section 106 of the Evidence Act creates an exception to Section 101 of the Evidence Act and it comes into play only in a limited sense where the evidence is of a nature which is especially within the knowledge of that person and then the burden of proving that fact shift to that person.
33. The burden of proof is always on the prosecution. It is the prosecution which has to prove its case beyond reasonable doubt. Section 106 of the Evidence Act does not alter that position. It only places burden for disclosure of a fact on the establishment of certain circumstances. What has to be kept in mind is that Section 106 of the Evidence Act only comes into play when the other facts have been established by the prosecution. Crl.Appeal No.936 of 2019 21 In this case, prosecution failed to establish the circumstances pointing to the guilt of the accused beyond any reasonable doubt.
34. Though the prosecution would allege that the accused demanded share of Sobhana in her family property and used to quarrel with the Sobhana over the same, there is no acceptable evidence in respect of it. Prosecution failed to establish motive for the crime.
35. The circumstances established in this case are not sufficient enough to hold that it was the accused, who committed the murder of Sobhana. According to PW1 on 26.04.2017 at 9.30 pm one Elsy told him that accused and Sobhana were on quarelling terms and immediately thereafter, Elsy gave him the news regarding the death of Sobhana. But the said Elsy was neither cited as a witness by the prosecution nor examined by the prosecution. It is to be borne in mind that nobody has seen the presence of the accused at the scene of occurrence immediately prior to the death of Sobhana. Though the evidence tendered by PW16 would reveal that he had collected samples of blood of the accused for DNA, nail clippings of the accused, dried blood stains from the face and both hands of the accused and collected scalp and pubic hair, Ext.P15 FSL report would reveal that there is no Crl.Appeal No.936 of 2019 22 scientific evidence to connect the accused with the crime. During cross examination, the investigating officer has categorically testified that there is no scientific evidence to connect the accused with the crime. In Ext.P4 report prepared by PW13, she has mentioned about three bite marks seen on the body of the deceased. The investigating officer has not conducted any investigation in respect of the bite marks seen on her body. Bite mark analysis has not been done by the prosecution. There is no evidence which clinchingly prove that accused is the author of the crime. Nobody has seen the accused and victim together shortly before the alleged time of death of victim on the date of occurrence. There is no evidence that prior to the death of victim Sobhana, the accused had reached his home after work. The circumstances established in this case do not in any way prove the presence of the accused at the time of occurrence.
36. It is a well settled principle that Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. Section 106 of Evidence Act cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the Crl.Appeal No.936 of 2019 23 offence. Section 106 of the Evidence Act does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden of the accused to show that no crime was committed.
37. In the decision reported in Aneez v. State Govt. of NCT (2024 KHC Online 6256) the Hon'ble Apex Court held that Section 106 of the Evidence Act would apply to the cases that the prosecution could be said to have succeeded in proving facts from the a reasonable inference can be drawn regarding guilt of the accused.
38. In the case on hand, from the proved facts no such reasonable inference can be drawn regarding the guilt of the accused. It is not a case where all the links in the chain are completely pointing to the guilt of the accused and it is not a case where every hypothesis of innocence is capable of being negatived in evidence. It is trite that suspicion however strong does not take the place of proof. The possibility of any outsider committing the offence cannot be ruled out. The prosecution has not succeeded in establishing beyond any reasonable doubt that it was the accused who committed murder of victim Sobhana. Hence, Crl.Appeal No.936 of 2019 24 the accused is found not guilty for the offence punishable under Section 302 of IPC and he is acquitted under Section 235(1) Cr.P.C.
39. The Crl.Appeal stands allowed; the impugned judgment of conviction and sentence passed against the accused stands set aside and the accused is set at liberty. He shall be released forthwith unless his detention is wanted otherwise.
Registry is directed to communicate a copy of this judgment forthwith to the Superintendent of Jail, wherein the appellant/accused is undergoing incarceration.
Sd/-
P.B.SURESH KUMAR, JUDGE Sd/-
M.B.SNEHALATHA, JUDGE ab/sp