Kerala High Court
Sreeju T.V vs State Of Kerala on 9 August, 2024
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
CRL.A NO. 1273 OF 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
FRIDAY, THE 9TH DAY OF AUGUST 2024 / 18TH SRAVANA, 1946
CRL.A NO. 1273 OF 2016
Cr.No.430/2014 OF Pulpally Police Station, Wayanad
ARISING OUT OF THE JUDGMENT DATED 07.10.2016 IN SC
NO.293 OF 2014 OF SESSIONS COURT, KALPETTA
APPELLANT/ACCUSED:
SREEJU T.V
S/O. VISHNU, NARIVAYAL HOUSE,
PAKKAM, PULPALLY AMSOM.
BY ADVS.
SRI.RENJITH B.MARAR
SMT.LAKSHMI.N.KAIMAL
SHRI.ARUN POOMULLI
SMT.SURABHI SANTHOSH
SHRI.MEERA M.
SHRI.BIJU VIGNESWAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN 682031.
ALEN M.THOMBRA, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
03.07.2024, THE COURT ON 09.08.2024 DELIVERED THE
FOLLOWING:
CRL.A NO. 1273 OF 2016
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JUDGMENT
Dated this the 09th day of August, 2024 Syamkumar V.M., J.
This Criminal Appeal has been filed by the appellant who was the accused in S.C.No.293 of 2014 of the Sessions Court, Kalpetta, Wayanad (arising out of Crime No.430 of 2014 of Pulpally Police Station) challenging his conviction and sentence for the offences punishable under Sections 302 & 201 of the Indian Penal Code (hereinafter referred to as the IPC), Regulation 12 & 19(3) of Central Electricity Authority (Measures Relating to Safety and Electricity Supply) Regulation 2010 and Section 135(a)(e) of the Electricity Act, 2003.
The Prosecution case:
2. The prosecution case is that, on 07.08.2014, at 2:30 A.M. at Pakkam in Pulpally amsom, the appellant murdered his seven month pregnant lover, Ambika by electrocuting her. The appellant, it is alleged, had applied high voltage electric current from an LT 3phase 4 wire line, after twisting an aluminium wire around the leg of the deceased. He had thereafter buried her body in the adjacent Narivayal forest. Prosecution case was that the appellant had thus committed the offences under Sections 302 & 201 of IPC, Regulation 12 & 19(3) of Central Electricity Authority (Measures Relating to CRL.A NO. 1273 OF 2016 3 2024:KER:60836 Safety and Electricity Supply) Regulation 2010 and Section 135(a)(e) of the Electricity Act, 2003.
Proceedings before the trial court :
3. On appearance of the appellant, after hearing both sides under Section 227 of the Code of Criminal Procedure (hereinafter referred to as the "Cr.P.C."), charges were framed against him.
When the charges were read over and explained to him, appellant pleaded not guilty. Thereafter, the prosecution examined PW1 to PW51 and marked Exts.P1 to P109. MO1 to MO28 were identified. After closing the prosecution evidence, the appellant was examined under Section 313 of the Cr.P.C. He denied the incriminating evidence against him and submitted a separate statement denying the prosecution case. He stated that he and the deceased were in a romantic relationship and that on August 4, 2014, they visited the Parassinikadavu temple in Kannur and stayed overnight. The next day, August 5, 2014, they returned and the victim went back to her home. He never saw her again, alive or dead. On August 6, 2014, he never travelled by KSRTC bus from Mananthavady to Pakkam. He had gone to Kannur for work and was taken into custody from there. He was made accused solely because of his relationship with the deceased. Thereafter, the case was heard under Section 232 Cr.P.C. and the Court held that the case is not fit for discharge under Section 232 Cr.P.C. Therefore, the case was posted for evidence on CRL.A NO. 1273 OF 2016 4 2024:KER:60836 the side of the appellant. DW1 and DW2 were examined and Exts.D1 to D6 were marked on the defence side.
4. At the conclusion of the trial, the appellant was sentenced to imprisonment for life and to pay a fine of Rs.25,000/- for the offence punishable under Section 302 of the IPC, in default of payment of fine, to undergo rigorous imprisonment of six months ; rigorous imprisonment for a period of four years and to pay a fine of Rs.15,000/- for the offence punishable under Section 201 of the IPC, in default of payment of fine to undergo rigorous imprisonment for a period of three months; rigorous imprisonment for a period of three years for the offence under Regulation 12, 19(3) of Central Electricity Authority (Measures Relating to Safety and Electricity Supply) Regulation 2010 and Section 135(a)(e) of the Electricity Act, 2003.
Appeal before us :
5. We have heard, Sri.Ranjit Marar, learned counsel appearing on behalf of the appellant and Sri.Alex Thombra, learned Public Prosecutor representing the State.
6. Contentions put forth by the learned counsel for the appellant can be summarised as follows:
● Prosecution has failed to prove any motive on the appellant to murder the deceased. Purported motive put forth, viz., that the appellant wanted to do away with the deceased since he came CRL.A NO. 1273 OF 2016 5 2024:KER:60836 to know belatedly, about her advanced pregnancy through him has not been proved or substantiated.
● Evidence tendered by PW3 mother, PW4 sister and PW1 mother's sister of the deceased contradicts the prosecution case and reveals that appellant and the deceased were in an open living relationship which was not a taboo in the community.
● Evidence tendered by PWs 3, 4 and 1 reveals that the appellant and the deceased were in a very cordial relationship. That appellant and the deceased were eagerly looking forward to the birth of their child and had even started preparing for it by visiting the Parassinikadavu temple seeking blessings is also revealed in evidence.
● Prosecution attempt, to substantiate motive solely based on Ext.P74 forensic report-DNA, is unsustainable. Mere matching of the DNA profile of the foetus with that of the appellant, cannot lead to a conclusion regarding motive. ● Evidence put forth by the prosecution through the depositions of PWs 1, 3 and 4 to prove that the appellant and the deceased were together from 03.08.2014 to 06.08.2014 is not reliable in law. None of the said witnesses had seen them together and their statements would only constitute a hearsay and thus CRL.A NO. 1273 OF 2016 6 2024:KER:60836 inadmissible. Substantiation attempted in the form of deposition of PW28 (custodian of CCTV camera in the Parassinikadavu temple) and MO26 pen drive containing CCTV footage copied by PW29 (CPO), are also unreliable as they do not comply with the mandates of law.
● The 'last seen together' theory put forth to implicate the appellant has not been substantiated to a level where it could be treated as reliable. PW2 who was examined to state that the appellant and the deceased were seen together in a 'kaavalpura' in the night of 06.08.2014 had turned hostile. ● The 'last seen' theory flounders further since the reliance placed on the deposition of PW50 (KSRTC Bus conductor) to substantiate that the deceased was last seen with the appellant in the KSRTC bus at 8.40 P.M. on 06.08.2014 is fraught with vagueness and inconsistencies. The purported identification by PW50 of the appellant is legally unreliable due to inherent improbability and also for the lack of identification parade. Ext.P17 (trip sheet), Ext.P6 (bus ticket) and Ext.P58 (photograph of the ticket) put forth to substantiate the 'last seen' theory are, by their very form, nature and content unreliable.
● Since the likeness of the appellant had already been known to PW50, the identification of appellant in the court by PW50 is CRL.A NO. 1273 OF 2016 7 2024:KER:60836 valueless. Reliance is placed on the dictum in Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700] and in Laxmipat Choraria v. State of Maharashtra (1968 KHC 635), Ravindra alias Ravi Bansi Gohar v. State of Maharashtra and others [(1998) 6 SCC 609]; and Suresh v. State (2003 KHC 216).
● Prosecution reliance on Ext.P3 letter to implicate the appellant by alleging it as his creation to cover up and mislead the family of the deceased, is concocted and does not even have a logical sustainability.
● Contention that appellant had after causing the murder of the deceased, written Ext.P3 letter and had posted it to PW3 (mother of the deceased) from Kozhikode to make her believe that the same was written by the deceased and that she was happily residing in Kozhikode, flounders due to the contradictions in the statements of PW17 (postman), PW5 (step father of the deceased), PW16 (postmaster) and PW18 (librarian).
● Reliance placed on MO27 notebook seized from the house of the appellant to prove his hand writing in Ext.P3 letter is legally unreliable as the mandates of Sec.311 Cr.P.C. have not been complied with [Sukhvinder Singh and others v. State of Punjab [(1994) 5 SCC 152] ; Sonvir @ Somvir v. State CRL.A NO. 1273 OF 2016 8 2024:KER:60836 (NCT of Delhi) [(2018) 8 SCC 24] are relied on]. ● Attempt of the prosecution based on depositions of PWs 35 and 36 to substantiate the charges against the appellant by proving that he was in constant touch with the deceased over phone and that they were both together at the same place at the same time by pointing to the same tower location of their mobile phones (MO9 and MO28 phones) and with CDR details from MO23 series SIM cards have failed to put forth any reliable evidence incriminating the appellant. ● Reliance placed on a bed sheet (MO22) seized at the time of Ext. P5 inquest, texture and style of which match with that of MO21 pillow cover purportedly seized from the appellant's house is unsustainable. PW12, who was the witness to its seizure has stated that he has not seen the actual seizure of the pillow cover from appellant's house and further, MO22 bed sheet is not produced before the court and even the forwarding note for sending the same for FSL analysis has not been marked. Further the FSL report (Ext.P47) only says that MO22 and MO21 have fibres of 'similar nature' which by itself does not implicate the appellant [Fr. George Cherian v. State of Kerala (1989 KHC 663); Sahbuddin v. The State (NCT of Delhi) ILR (2001) II Delhi 845; Muhammed Yousaf @ Sajid and another v. State of Kerala (2022 KHC Online 136) and CRL.A NO. 1273 OF 2016 9 2024:KER:60836 Biju Kumar v. State of Kerala (2022 (1) KHC 463) are relied upon.].
● Purported recovery of MO12 (cable wire), MO19 (bamboo stick), and MO20 (aluminum wire) as per Ext.P7 recovery mahazar based on the disclosure statement of the appellant in Ext.P15 recovery mahazar does not comply with the mandates of Section 27 of the Evidence Act. The investigating officer has not marked the portions of the disclosure statement that has led the Police to the place of recovery making the recovery inadmissible as against the appellant [Subramanya v. State of Karnataka [(2022) SCC OnLine SC 1400] is relied on]. ● No evidence has been put forth to substantiate the alleged electrocution of the deceased by the appellant. It defies common logic that electrocution could have been carried out by the appellant as alleged, while the deceased was asleep in the verandah of the kaavalpura that too by employing a cumbersome process of drawing an electric line from the overhead LT 3 phase cable and extending it to electrocute the deceased through a cable bound around her feet without waking her up and her not putting up any resistance whatsoever.
● The Postmortem Certificate (Ext.P13) does not reveal any other injury other than an electric burn wound and the injury CRL.A NO. 1273 OF 2016 10 2024:KER:60836 noted does not support the prosecution case of electrocution by rendering a high voltage electric shock from overhead 3 phase power line.
● The chain of circumstances thus attempted to be put up by the prosecution has numerous missing links making the prosecution evidence unreliable and insufficient to convict the appellant [Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] is relied on].
● Let alone the exact time of death, even a reasonable approximation regarding the time of death is not available from the evidence put forth by the prosecution. A huge gap of at least three days exist, even as per prosecution case, between the time the deceased was purportedly last seen alive and the time of exhumation of the body. The time of death thus remains uncertain and even an attempt has not been made by the prosecution to put forth any reliable evidence in the said respect [Gambhir v. State of Maharashtra [(1982) 2 SCC
351)] and Jabir and others v. State of Uttarakhand (2023 SCC online SC 32) are relied on].
Thus the learned counsel for the appellant submits that the conviction and sentence imposed on the appellant by the learned Sessions Judge is erroneous and improper. He seeks setting aside of the same and prays that the appellant be acquitted. CRL.A NO. 1273 OF 2016 11 2024:KER:60836
7. Per contra, defence put forth by the learned Public Prosecutor can be summarised as follows:
● Prosecution has successfully forged a chain of circumstances which convincingly concludes that in all human probability, the crime has been committed by the appellant. ● Depositions of PW1, PW3 and PW4 evidence that the appellant had a relationship with the deceased and that the deceased was pregnant with appellant's child at the time of her murder. Ext.P74 [Forensic report (DNA)] marked through PW49 vouchsafe that the deceased was 9 months pregnant with the appellant's child. Motive of the appellant to get rid of the deceased, whom he had not married and whose advanced pregnancy came to his note belatedly, thus stands reliably proved.
● That prior to the deceased going missing on 06.08.2014, she was seen with the appellant from 03.08.2014 to 06.08.2014. This fact is reliably proved through the depositions of PW 26 (Manager of Tourist home), PW28 (Custodian of CCTV, Parassinikadavu temple), PW29 (CPO, Cyber cell, Wyanad) and from Ext.P19 (rent-register) and Ext.P50 (a) (CD) marked through them respectively.
● Deceased was last seen with the appellant on 06.08.2014 by CRL.A NO. 1273 OF 2016 12 2024:KER:60836 PW50 (KSRTC Conductor) while travelling in a KSRTC Bus which had started from Mananthavady at 8.40 P.M. Both had deboarded at Pakkam PHC and the body of the deceased was found buried along the forest line not far from Pakkam on 10.08.2014. The statement of PW50 has been corroborated by the log sheet, Way bill and ticket wise details of the KSRTC and the deposition of PW31 (CPO) who was a witness to the seizure of the same vide Ext.P18 mahazar. Thus requirements to meet the 'last seen theory' stands satisfied by tenable evidence.
● Legally tenable evidence in the form of deposition and call details exist to demonstrate that between 03.08.2014 to 06.08.2014 appellant and the deceased were in regular contact with each other and that on 06.08.2014 they were together under the same tower. This is substantiated by the evidence recovered from the mobile phones (MO9 and MO28) used by the appellant and the deceased and SIM cards (MO23). This is corroborated by the testimony of PW35 and PW36 and Ext.P43 and Ext.P65 (Call Detail Reports).
● PW2 had deposed that on 06.08.2014, at 10.00 P.M., he had seen the deceased and the appellant together at the kaavalpura, around 30 m from where the body of the deceased was found buried on 10.08.2014. Though he had turned hostile, part of his statement marked as Ext.P2 with which he was CRL.A NO. 1273 OF 2016 13 2024:KER:60836 contradicted in the further cross examination and his reply are reliable. Deposition of PW2 thus clearly points to the appellant's culpability.
● MO21 series (pillow covers) and MO22 (bed sheet) recovered with the body of the deceased clearly incriminate the appellant in the crime. MO22 bed sheet seized at the time of Ext.P5 inquest has the similar pattern and design as that of MO21 series pillow covers, subsequently seized from the appellant's house. Deposition of PW38 and Exts.P47 and P48 Forensic reports marked through him reveal that the fibres of MO21 series and MO20 are similar in nature.
● Based on the disclosure statement of the appellant, the contraption put together by the appellant to electrocute the deceased had been validly and reliably recovered. MO19 (bamboo pole) and MO20 aluminium wire were recovered and marked by the prosecution. PW8 (mahazar witness) and PW31 (CPO) had been examined and Exts.P15 and P7 recovery mahazars were marked through the said witnesses. ● The modus of electrocution followed by the appellant and the sufficiency of the materials (MOs 12, 19 and 20) used by him to electrocute the deceased have been reliably explained by PW 43 (Deputy Electrical Inspector) in Ext.P59 report. CRL.A NO. 1273 OF 2016 14 2024:KER:60836 ● PW43 has deposed that MO12 (cable wire), MO20 (aluminium wires) MO19 (bamboo pole) can be used in such a way that electric power could be extracted from the over head low tension 3 phase 4 wire electric lines passing within 10 meters from the kaavalpura applied to MO20 aluminium wire wound on the leg of the deceased sleeping in the verandah of the kaavalpura resulting in an electric shock could kill any human being. This deposition of PW43, supported by the materials, have not been assailed or contradicted.
● Death by electrocution has been confirmed by Ext.P13 Postmortem report issued by PW21 (Doctor and Professor of Forensic Medicine) and he has specifically stated that in his opinion, the cause of death is suggestive of death due to electric shock and that injury No.3 is an injury caused by electric shock. He had also deposed that the said injury is fatal in nature and sufficient to cause death in ordinary course. ● Based on the disclosure statement by the appellant, Sec. 27 recovery of three spades (MOs 13, 14 and 15 series) used by the appellant to bury the body of the deceased had been effected and the recovery was validly and tenable proved through Ext.P11 mahazar to which PW14 was a witness. ● Prosecution evidence has proved that the appellant had CRL.A NO. 1273 OF 2016 15 2024:KER:60836 fabricated Ext.P3 letter to mislead the mother and relatives of the deceased to believe that she was alive and safe in Kozhikode. Ext.P3 letter was reliably proved through PW 16 (Postmaster) and PW17 (Postman). Contents of the letter written in the kattu naika tongue scripted in Malayalam had been read and deciphered by PW18. The handwriting in Ext.P3 letter had been proved to be that of the appellant through the depositions of PW31 (CPO) who had seized MO27 notebook from the house of the appellant and had drawn samples of the handwriting of the appellant (S1 to S5, SA1 to SA 5 & SA 6 to SA 10) which had been examined by PW 37 (Asst. Director, Regional Forensic Science Laboratory, Kannur) who had compared the manner of hand writings in the original document and the samples before issuing Ext.P45 report stating that they are written by one and the same person viz., the appellant.
● The chain of circumstances incontrovertibly pointing to the guilt of the appellant have been unerringly completed. No other hypotheses possible other than the guilt of the accused is capable. Last seen together theory has been validly substantiated. Hence the appeal is only to be dismissed confirming the conviction and sentence of the appellant. CRL.A NO. 1273 OF 2016 16 2024:KER:60836 Discussion and Conclusion:
8. Since the prosecution case hinges on circumstantial evidence which in turn is based on the 'last seen' theory as well as on the recoveries based on disclosure statements of the appellant, we deem it relevant to examine the law pertaining to the same before proceeding to examine the appreciation of evidence by the trial court.
'Last seen' theory:
9. 'Last seen' theory is a presumption based on common logic. It proposes that if a person is last seen with the victim before a crime and he has no credible explanation to offer, then there is a strong presumption that the person could be responsible for the crime committed upon the victim. The proposition of 'last seen' is thus essentially based on circumstantial evidence.
10. Last seen theory obtains its statutory backing from Section 7 of the Indian Evidence Act, which lays down that any fact related to the occasion, cause, or effect of the thing that occurred or that provided an opportunity for its occurrence will be relevant if it contributed to the circumstances in which that thing occurred. This doctrine is also intricately linked to Section 106 of the Indian Evidence Act, which mandates that "when any fact is especially within the knowledge of any person, the burden of proving that fact lies upon him". Similarly, the presumption of fact that follows from CRL.A NO. 1273 OF 2016 17 2024:KER:60836 the last seen theory can also be located in Section 114 of the Indian Evidence Act, which allows the court to assume the existence of certain facts in matters involving natural occurrences, human behaviour, and public and private business if the existence of other facts is established.
11. Doctrine of 'last seen' has been subjected to extensive scrutiny by the higher courts in India. The nature of proof with respect to the last sighting of the victim and the accused together, the time interval between such sighting and the revelation of the commission of the crime, the nature of the explanation offered by the accused, deductions to be drawn from the behaviour of the accused during and after such sighting, his fleeing or absconding etc. have been emphasised as ingredients which have crucial relevance when it comes to the reliability of the last seen together theory [R.Sreenivasa v. State of Karnataka [2023 SCC OnLine SC 1132], Jabir and others v. State of Uttarakhand [2023 SCC Online SC 32], Ram Gopal S/o Mansharam v. State of Madhya Pradesh (2023 SCC Online SC 158), Shankar v. State of Maharashtra [2023 SCC Online SC 268]; Boby V. State of Kerala (2023 SCC Online SC50) ; Chotkau v. State of Uttar Pradesh, [(2023) 6 SCC 742]; Surajdeo Mahto and another v. State of Bihar [2021 SCC Online SC 542], Digamber Vaishnav and another v. State of Chhattisgarh [2019 SCC Online SC 316], Satpal v. State of CRL.A NO. 1273 OF 2016 18 2024:KER:60836 Haryana [(2018) 6 SCC 610], Nizam and another v. State of Rajasthan [(2016) 1 SCC 550], Rambraksh alias Jalim v. State of Chhattisgarh [(2016) 12 SCC 251], Krishnan alias Ramasamy and others v. State of Tamil Nadu [(2014) SCC Online SC 509], Kanhaiya Lal v State of Rajasthan [(2014) 4 SCC 715], Jaswant Gir vs. State of Punjab [2005 (12) SCC 438], Bodhraj alias Bodha and others v. State of Jammu and Kashmir [2003 SCC (Cri) 201] and Arjun Marik and others v. State of Bihar [1994 SCC (Cri.)1551])
12. The broad principles governing 'last seen' theory, as deducible from the above said precedents are as follows:
● It is generally presumed to possess the nature of a secondary evidence.
● In absence of primary or direct evidence and eyewitnesses, its application could be tested subject to the facts and circumstances of the case.
● Merely because a circumstance exists to employ this theory, does not by itself lead to an inference that it is the accused who has committed the crime.
● 'Last seen' theory can be invoked only when the same stands proved beyond reasonable doubt. The burden on the accused would kick in, only when the 'last seen theory' is established. CRL.A NO. 1273 OF 2016 19 2024:KER:60836 ● 'De recenti' or 'recently', meaning the interval between the time when the deceased and the accused were last seen alive and in company and the time when the former is found dead, must be so short that the chance of any person except the accused being the initiator of the crime, becomes impossible. ● When the time gap between the time when the deceased was seen last with the accused and the time of murder, is wide, then application of theory has to be with circumspection. ● Once the burden shifts and the accused is not able to put forth a credible explanation or fails to place any explanation, that would then provide an additional link in the chain of circumstances.
● In the absence of any other links in the chain of circumstantial evidence, it is not possible to convict the accused solely on the basis of the "last-seen" evidence, even if the version of the witness in this regard is believed.
● The last seen theory should be applied taking into account the case of the prosecution in its entirety. The factum of last seen must not be considered in isolation. The circumstances that preceded and followed from the point of the deceased being so last seen in the presence of the accused must also be taken note of.
CRL.A NO. 1273 OF 2016 20 2024:KER:60836 ● Once a reasonable inference can be drawn against the accused, then the onus shifts on to him to discharge the burden as envisaged in Sec. 106 of the Evidence Act, 1872. ● If the accused then offers no explanation, or furnishes a wrong explanation, absconds, motive is established, and there is corroborative evidence available inter alia in the form of recovery or otherwise forming a chain of circumstances leading to the only inference for guilt of the accused, incompatible with any possible hypothesis of innocence, then conviction can be based on the same.
● Each case will have to be examined on its own facts for invocation of the doctrine of 'last seen'. ● It is a theory nested in circumstantial evidence. If there be any doubt or break in the link of the chain of circumstances, the benefit of doubt must go to the accused. Thus as reiterated by the Supreme Court in the cases referred to above, "last seen" principle is a weak form of evidence that should be used with great circumspection and care. It cannot be the sole basis for conviction unless supplemented by other substantial evidence against the accused.
Proof by circumstantial evidence:
13. The essential conditions that must be fulfilled before an CRL.A NO. 1273 OF 2016 21 2024:KER:60836 accused can be convicted in a case revolving around circumstantial evidence has been elaborated by the Supreme Court in the landmark case of Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] as follows:
"153. A close analysis of this decision would show that 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 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 [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the 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 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."
The Panchsheel principles in Sarda have been approvingly reiterated by the Supreme Court later in Pradeep Kumar v. State of Chhattisgarh [2023) 5 SCC 350] and in Ramanand @ Nandlal Bharti v. State of Uttar Pradesh [(2022) SCC OnLine SC 1396]. CRL.A NO. 1273 OF 2016 22 2024:KER:60836
14. The above precedents reveal that just as with 'last seen' theory, care and circumspection should be exhibited while proceeding to convict solely based on circumstantial evidence and compliance of the mandates as evolved in the cases discussed above, should be scrupulously confirmed. Thus when circumstantial evidence forms the basis of conviction, such evidence must consist of proof of collateral facts and circumstances from which existence of the main fact may be inferred according to reason and common experience.
Discoveries based on Disclosure statements:
15. While Sections 25 and 26 of the Evidence Act, 1872 impose a full embargo on the reception of confessional statements, Section 27 envisages a partial relaxation of the said ban. Section 27 reads as follows:
"27. How much of information received from the accused may be proved. -- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
The following elucidation of the scope of Sec. 27, made by the Privy Council in Pulukuri Kottayya and others v. King Emperor [AIR 1947 PC 67] still holds ground:
"Clearly the extent of the information admissible must depend on the exact nature of the fact discovered" and the information must distinctly relate to that fact.
CRL.A NO. 1273 OF 2016 23 2024:KER:60836
16. Section 27 is thus founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer is tainted, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted in so far it distinctly relates to a fact thereby discovered. The statement which is thus admissible under Section 27 is the one which is the information leading to discovery.
17. In Ravishankar Tandon v. State of Chhattisgarh [(2024) SCC Online SC 526)] the Supreme Court has reiterated the dictum as laid down in State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru [(2005) 11 SCC 600] which succinctly laid down the law on the point as follows:
"121. The first requisite condition for utilising Section 27 in support of the prosecution case is that the investigating police officer should depose that he discovered a fact in consequence of the information received from an accused person in police custody. Thus, there must be a discovery of fact not within the knowledge of police officer as a consequence of information received. Of course, it is axiomatic that the information or disclosure should be free from any element of compulsion. The next component of Section 27 relates to the nature and extent of information that can be proved. It is only so much of the information as relates distinctly to the fact thereby discovered that can be proved and nothing more. It is explicitly clarified in the section that there is no taboo against receiving such information in evidence merely because it amounts to a confession. At the same time, the last clause makes it clear that it is not the confessional part that is admissible but it is only such information or part of it, which relates distinctly to the fact discovered by means of the information furnished. Thus, the information conveyed in the statement to the CRL.A NO. 1273 OF 2016 24 2024:KER:60836 police ought to be dissected if necessary so as to admit only the information of the nature mentioned in the section. The rationale behind this provision is that, if a fact is actually discovered in consequence of the information supplied, it affords some guarantee that the information is true and can therefore be safely allowed to be admitted in evidence as an incriminating factor against the accused. As pointed out by the Privy Council in Kottaya case [AIR 1947 PC 67] It has thus been laid down by the Supreme Court in Tandon's case (supra) that :
"As such, for bringing the case under Section 27 of the Evidence Act, it will be necessary for the prosecution to establish that, based on the information given by the accused while in police custody, it had led to the discovery of the fact, which was distinctly within the knowledge of the maker of the said statement. It is only so much of the information as relates distinctly to the fact thereby discovered would be admissible."
18. The Supreme Court has also elucidated on the process, stages and procedure to be complied with while recording disclosure statements as well as the manner as to how it should be placed before a court by the prosecution in Subramanya v. State of Karnataka (supra). Principle behind the Section thus reiterated as follows ;
"77. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.
78. If, it is the say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the CRL.A NO. 1273 OF 2016 25 2024:KER:60836 investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch- witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."
19. In Ramanand @ Nandlal Bharti Vs. State of Uttar Pradesh (supra), the Supreme Court discussing the reliability of recovery based on disclosure statements under Section 27 of the Evidence Act has reiterated the above principles.
20. The Supreme Court in Babu Sahebagouda Rudragoudar and others v. State of Karnataka [2024 SCC OnLine SC 561] has further elaborated on the manner holding that CRL.A NO. 1273 OF 2016 26 2024:KER:60836 the Investigating Officer should give a description of the conversation which had transpired between himself and the accused which was recorded in the disclosure statements. It was held that the disclosure statements cannot be read in evidence and if that is all what has been done by the prosecution, then the recoveries made in furtherance thereof are non est in the eyes of law. When the Investigating Officer steps into the witness box for proving such a disclosure statement, he would be required to narrate what the accused stated to him. The Investigating Officer essentially testifies about the conversation held between himself and the accused which has been taken down in writing leading to the discovery of incriminating fact(s).
21. Having thus reminded ourselves regarding the legal tenets relevant to the case at hand, we now proceed to examine the appreciation of evidence as well as the sustainability of the conviction and sentence arrived at by the learned Sessions Judge. Motive and its relevance:
22. As per the prosecution, motive that led the appellant to commit the crime was his realisation that the deceased was in an advanced stage of pregnancy (7 months) with his child and that he had no option, but to marry her. Appellant who was a graduate and a member of a community having higher social status was reluctant to marry the deceased as she was an illiterate, already married with a CRL.A NO. 1273 OF 2016 27 2024:KER:60836 child and belonged to a community perceived to occupy a lower social standing than that of the appellant. As per the prosecution, the appellant thus decided to get rid of the deceased and had hatched a plan to electrocute her. Evidence tendered to substantiate such a motive, includes the testimony of the mother, sister and aunt of the deceased who were examined as PW3, PW4 and PW1 respectively.
23. PW1, the aunt of the deceased, had deposed that the appellant belonged to 'Mullukuruma' community and that the deceased was from 'Naikan' community. She deposed that the appellant and the deceased were in love and that the appellant used to come to her house along with the deceased. That the family of the deceased was aware of her pregnancy through the appellant is deposed by the said witness. She has also testified that there is no possibility for the deceased committing suicide and according to her 'someone' would have caused harm to the deceased. She further deposed that the appellant had told her that they were about to get married. PW1 has testified that she had no information regarding any issues between the deceased and the appellant and that they were on very good terms.
24. PW3 is the mother of the deceased. She had deposed that the deceased was earlier married to one Mathan and a male child was born in the said relationship. Mathan later divorced the deceased and since then she had been living with PW3 with her son. CRL.A NO. 1273 OF 2016 28 2024:KER:60836 Appellant was the neighbour of PW3 and the deceased was in love with him. Deceased was pregnant through the appellant and PW 3 stated that the appellant used to beat the deceased when she showed reluctance to travel to far off places. Though the deceased had studied up till the 7th standard, that she could not write was deposed by PW3.
25. PW4, who is the sister of the deceased, has testified that the deceased was in love with the appellant and they were on very good terms.
26. PW5, who is the stepfather of the deceased, has stated that the deceased as well as the appellant were in love since long, and that they had a very close relationship.
27. Thus factum of the deceased and the appellant being in a relationship and the deceased being in an advanced stage of pregnancy through the appellant have been deposed by all the said witnesses. Social and educational disparity that existed between the appellant and the deceased have also been brought forth by the deposition of the said witnesses who are close relatives. Their testimony has not been impeached or contradicted. However it is relevant to note that PW3, PW4 and PW1 have not in their respective testimony imputed any specific motive as against the appellant to murder the deceased.
28. Factual evidence being so, it now assumes relevance to CRL.A NO. 1273 OF 2016 29 2024:KER:60836 examine the imperativeness of proof of motive in a criminal trial. The legal position in this respect has been succinctly explained by the Supreme Court after a survey of the precedents on the point, in Sheo Shankar Singh v. State of Jharkhand and another [(2011) 3 SCC 654] as follows:
15. The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of decisions of this Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye witnesses on the other.
In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eye-witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely even if prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye-witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye-witness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eye-witnesses. (See Shivaji Genu Mohite v. The State of Maharashtra, (1973) 3 SCC 219, Hari Shanker v. State of U.P. (1996) 9 SCC 40 and State of Uttar Pradesh v.
Kishanpal and Ors. (2008) 16 SCC 73.)
29. As per Section 8 of the Indian Evidence Act, motive is a relevant fact. It is one of the circumstances that would complete the CRL.A NO. 1273 OF 2016 30 2024:KER:60836 chain of circumstances. However, it is trite law that the prosecution is not always bound to prove motive. In Perumal Raja @ Perumal v. State represented by Inspector of Police (2024 SCC OnLine SC
12), Supreme Court has held as follows:
"It is a settled principle of criminal jurisprudence that in a case based on circumstantial evidence, motive for committing the crime on the part of the accused assumes greater importance. This Court in various decisions has laid down the principles holding that motive for commission of offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of offence is available. It is equally true that failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. However, it is also well settled and it is trite in law that absence of motive could be a missing link of incriminating circumstances, but once the prosecution has established the other incriminating circumstances to its entirety, absence of motive will not give any benefit to the accused."
30. In the light of the above settled legal position, the testimonies of PWs 1, 3, 4 and 5 do not per se assist the prosecution in proving that a motive existed in the appellant. It thus assumes relevance to examine whether the prosecution has established the other incriminating circumstances to its entirety, so as to lead to a premise where absence of motive would augur well for the appellant. If other incriminating circumstances stand proved entirely, then, mere absence of proof of motive may not be of any consequence. Evidence to support the 'last seen theory':
31. Prosecution evidence to substantiate the 'last seen' theory heavily relies on the testimonies of PW4, PW2 and PW50 and CRL.A NO. 1273 OF 2016 31 2024:KER:60836 the exhibits marked and MOs identified through them. The crux of the said statements is that the appellant and the deceased were last seen together at around 8.40 PM on 06.08.2014 travelling in a KSRTC bus from Manathavady and that they had together got down at Pakkam PHC. Thereafter the deceased was not seen by any one who would have normally seen her and her body was exhumed from a ditch on 10.08.2014 not far away from the Pakkam PHC. Before proceeding to scrutinise the evidence to corroborate the same and the conclusions that could be legally derived therefrom, it would be relevant to examine a prelude to the said events, as put forth by the prosecution which is a visit by the appellant and the deceased to Parassinikadavu temple on 04.08.2014 ie., just two days prior to the 'last seen' episode.
32. It is the case of the prosecution that the deceased had, immediately prior to her death, travelled along with the appellant to Parassinikadavu temple on 04.08.2014 and that they had stayed together in a lodge by name Nakshathra Tourist Home at Parassinikadavu on 04.08.2014. The said travel to Parassinikavadu temple and the stay in lodge are corroborated by the prosecution through the deposition of PW 1, PW 26, PW 27, PW 28, PW 29 and PW 30 and through Exts.P19 and P19 (a) to P22.
33. PW1, who is the mother's sister of the deceased, had deposed that the deceased had come to her house at Iruppur Naikka CRL.A NO. 1273 OF 2016 32 2024:KER:60836 Colony on 03.08.2014. Deceased had stayed back and the appellant had left. Next day ie., on 04.08.2014 at 10.00 A.M., PW1 took the deceased to Pulpalli. Appellant had contacted the deceased over phone and suggested going to Parassinikadavu temple. Accordingly, PW1 returned home and the deceased waited in the bus for the appellant to arrive so as to proceed to Parassinikadavu. That night at 10.00 PM PW1 had talked with the appellant over phone who informed her that he and the deceased had checked into a lodge at Parassinikadavu and was staying there overnight. On the next day, the appellant had called PW1 over telephone and told her that the deceased was missing. PW1 has deposed that the deceased was wearing a yellow churidar top and black shawl when she last saw her in the bus. The stay of the appellant and the deceased together at Nakshathra Tourist Home at Parassinikadavu on 04.08.2014 is testified by its Manager- PW 26. The Room Rent Register is marked as Ext.P19 and it bears the name and address of the appellant. Though some inconsistencies in entries in Ext.P19 register are pointed out, the handwriting of the appellant in Ext.P19 is confirmed by PW37 (Asst. Director, Forensic Lab). PW27 is the witness to the seizure of Ext.P19 and he has not been controverted or cross examined. That the appellant and the deceased had together visited Parassinikadavu temple is deposed by PW28 who is a member of the Parassinikadavu Madappurakkal Family that administers the temple. CRL.A NO. 1273 OF 2016 33 2024:KER:60836 He is in charge of the CCTV apparatus in the temple compound and has deposed that visuals from the CCTV hard drive had been copied to a Pen drive. This was done by PW 29, who is a police officer from the District Cyber Cell. PW 28 identified the appellant as the person seen on the CCTV visuals with the lady who has the likeness of the deceased. Ext.P21 photograph and Ext.P50 (a) CD visuals were identified by him.
34. The above evidence tendered with respect to the visit of the appellant and the deceased to Parassinikadavu on 04.08.2014 at 4.49 PM and their subsequent stay at Nakshathra Tourist Home are reliable and well corroborated. PW3, mother of the deceased, has deposed that the deceased and the appellant used to travel together and stay together overnight, with the knowledge and permission of their family members. We now proceed to examine the evidence put forth by the prosecution to substantiate the last seen theory which, as stated above, relies heavily on the depositions of PW4, PW2 and PW50.
35. PW4, the younger sister of the deceased, had deposed that she and her elder sister had seen off the deceased at 'Kadukka maram' bus stop in the evening of 06.08.2014 from where the deceased had boarded a bus to Mananthavady. She deposed that the deceased had thus gone to Mananthavady as per the call received from the appellant.
CRL.A NO. 1273 OF 2016 34 2024:KER:60836
36. PW50 is the conductor of the KSRTC bus which plies between Mananthavady to Pulpally. As per the prosecution, appellant and the deceased had travelled in the said bus from Mananthavady to Pakkam PHC on 06.08.2014. PW50 had deposed that on 06.08.2014, he was working as conductor in the said KSRTC bus. The bus was on its last trip for the day and had started its journey from Mananthavady at 8.40 P.M. to reach Pulpally at 9.40. P.M. He deposed that he had seen the appellant and the deceased travelling together in the bus sharing the same seat and that they had together deboarded at Pakkam PHC, a place not far away from where the body of the deceased was subsequently unearthed. PW50 had deposed that no other persons except the appellant and the deceased had deboarded at Pakkam PHC stop on that day. It is his testimony that it was the deceased who paid for the ticket and that he had issued her a single ticket for Rs.30/- (for two persons at Rs.15/- each). PW50 recognized and identified the deceased from Ext.P55(b) photograph shown to him. He stated that she was on that day wearing a yellow coloured churidar and was evidently pregnant. PW50 also recognized and identified the appellant in court as the person whom he saw travelling along with the deceased on the bus on that day. Crucially, he identified the ticket issued by him (Ext.P6 and its photograph Ext.P58) which as per the prosecution, was recovered on 10.08.2014 from the ditch along with the body of the CRL.A NO. 1273 OF 2016 35 2024:KER:60836 deceased during the inquest. The print on Ext.P6 ticket tend to fade and was not readable during the time of recovery and while identifying in the court. Anticipating this, a photograph of the same (Ext.P58) had been retained and PW50 had identified the said photograph of the bus ticket which contained the printed details. Ticket wise details (Way Bill) of the said bus (Ext.P17) was shown to PW50 and he confirmed his name and other details of payment as contained in the Way bill. As regards the identification of the appellant, PW50 had in his deposition stated that he had remembered and identified the appellant as he had seen his face in the newspapers and on television on the day after the body of the deceased was recovered. PW50 had also deposed that he had been questioned by the police first and was then again questioned after four days at which time the police had shown him the appellant, whom he recognised.
37. PW2 examined by the prosecution is a resident of the locality. He resides near the kaavalpura in the verandah of which the deceased was allegedly electrocuted. PW2 was examined to state that he had seen the appellant and the deceased together at the 'kaavalpura' at night around 10.00 P.M. on 06.08.2014. However, when examined in court he deposed that he retracted from his statement to the police and stated that he had not seen the appellant and the deceased together on the said date or time at the CRL.A NO. 1273 OF 2016 36 2024:KER:60836 'kaavalpura'. PW2 was hence declared hostile and a portion of his statement recorded under Section 161 was marked as Ext.P2.
38. It is thus on the depositions of the above said witnesses viz., PW4, PW 2 and PW 50 that the 'last seen theory' put forth by the prosecution substantially rests.
39. As regards the evidentiary worth of the deposition of PW2 who turned hostile, Ext.P2 contradiction marked does not constitute substantive evidence and at the most it could only have been used to impeach his credit. Thus deposition of PW2 does not assist the prosecution to substantiate the doctrine of last seen.
40. As regards the deposition of PW4 younger sister of the deceased, the same is relevant, as she along with her elder sister had seen off the deceased to Mananthavady from the 'Kadukka maram' bus stop in the evening of 06.08.2014. Rest other statement that the deceased had gone to Mananthavady as per the instructions of the appellant over telephone is a mere hearsay and cannot be relied on.
41. Thus the deposition of PW50 assumes crucial relevance, in proving the last seen theory. He had identified the accused at the dock on 04.07.2016. He had identified the deceased from her photograph. He had also identified the ticket issued by him as well as its readable photograph, the contents of which fully tallies with statements made by him regarding the time, ticket fair details etc. CRL.A NO. 1273 OF 2016 37 2024:KER:60836 The issuance of the ticket also fully tallies substantially with the Way bill and trip sheet produced. However, the catch in his deposition is his admission that he had seen the appellant's photo in the newspapers and T.V. channels immediately after the body of the deceased was recovered. In his re-examination, he had admitted that he was questioned by the police after the recovery of the body of the deceased and that after four days of such questioning he was shown the appellant. His statement that he remembers the appellant since he had seen his face on T.V. channels and newspapers after the incident and that no test identification parade was carried out to identify the appellant through PW50 are two aspects relied on by the learned counsel for the appellant to contend that the testimony of PW50 is of no avail in proving the last seen theory. Hence the deposition of PW50 requires a closer scrutiny.
42. Deposition of PW50 has been consistent and cogent. Though cross examined in detail, nothing has been brought out to discredit the worth of his testimony. Except for his admission that he had seen the likeness of the appellant earlier on the news paper and T.V. channels subsequent to the recovery of the body of the deceased, his testimony remains unimpeached. Testimony of PW50 has been corroborated by Ext.P6 ticket and its photograph Ext.P58 recovered from the body of the deceased. Ext.P17 trip sheet (waybill) and the log book for the day also corroborate the CRL.A NO. 1273 OF 2016 38 2024:KER:60836 statements of PW50. The statement that the appellant and the deceased had travelled in the said bus on 06.08.2014 and that they had got down at Pakkam PHC not far away from where the body of the deceased was found buried has thus been reliably stated by PW50. The admission honestly made by him that he had seen the appellant's picture on the TV and in the newspapers cannot be a reason to discredit his otherwise clear and cogent testimony.
43. As regards the absence of a test identification parade as contended by the learned counsel for the appellant based on the precedents, it is trite law that test identification parade is not mandatory. Rajesh alias Sarkari and another v. State of Haryana [(2021) 1 SCC 118] ; Dana Yadav alias Dahu and Others v. State of Bihar [(2002) 7 SCC 295], Malkhan Singh and others v. State of Madhya Pradesh [(2003) 5 SCC 746], State of H.P. v. Lekh Raj and another [(2000) 1 SCC 247] and Rameshwar Singh v. State of Jammu and Kashmir [(1971) 2 SCC 715] are also appropriate in this context. The consequences of the prosecution's failure to conduct a test identification parade will vary depending on the circumstances of each case. The object of a test identification parade is to test and ascertain the trustworthiness of the evidence regarding the identification of the accused. Failure to hold Test of Identification Parade cannot be termed to be fatal in view of the facts and circumstances of the case at hand especially since as admitted CRL.A NO. 1273 OF 2016 39 2024:KER:60836 by PW50 the face of the appellant has already been published in the newspapers and TV channels immediately after the recovery of the body of the deceased. Thus the challenge put forth against the testimony of PW50 is not sustainable.
44. The close scrutiny of the depositions of PW4, PW2 and PW50, to ascertain the extent to which each of them furthers and substantiates the 'last seen' theory, reveal that while the deposition PW2 does not assist the prosecution, the testimony of PW4 that she and her sister had personally seen off the deceased from Kadukka maram' bus stop in the evening of 06.08.2014 to Mananthavady assumes crucial relevance in supporting the prosecution version. The same read together with the very detailed and credible evidence tendered by PW50 that he had seen the appellant and the deceased at 8.40 P.M. of 06.08.2014 travelling together and getting down at the Pakkam PHC stop takes the 'last seen' theory put forth by the prosecution to its legally reliable and logical conclusion. However, as discerned from the law and precedents on the doctrine of 'last seen' discussed above, it is not possible to convict the accused solely on the basis of the 'last-seen' evidence, even if the version of the witness in this regard is to be believed. Hence it assumes relevance to further examine in detail the other evidence put forth by the prosecution to substantiate the charges against the appellant, especially the one based on mobile phone data on which the learned CRL.A NO. 1273 OF 2016 40 2024:KER:60836 public prosecutor had heavily relied on.
Value of the evidence based on mobile phone data:
45. Prosecution had attempted to corroborate its contentions against the appellant by relying on the evidence of PW39, the Assistant Director, Forensic Science Lab, who had examined the two mobile phones MO28 and MO9. MO28, is a mobile phone of Carbon make and had within it two SIM cards (IMEI 911380552303251 and IMEI 911380552403259). The said mobile phone is said to have been used by the appellant. MO9 mobile phone, which is a Nokia phone, had a SIM card bearing No.IMEI 325936027795797. The same is to have been given by the appellant to the deceased and was being used by her. MO9 Nokia phone used by the deceased had 9745760949 (Vodafone) as its number and the Carbon mobile phone which had two SIM cards, used by the appellant himself had the numbers 9544270118 (Vodafone) and 8129659768 (Bharathi Airtel). Both these mobile phones including their SIM cards were seized from the appellant as per Ext.P14 seizure mahazar on 13.08.2014 . PW35 is the Alternate Nodal Officer of Bharti Airtel and he was examined to identify the Enrollment form (Ext. P36), ID proof (Ext. P37) and the Call Data Records from 20.07.2014 to 10.08.2014 (Ext. P38) with respect to the mobile number 8129659768. He had deposed that as per the records, the relevant mobile number was allotted to the appellant and that it was activated on 20.07.2014. PW35 has also CRL.A NO. 1273 OF 2016 41 2024:KER:60836 deposed that the mobile phone bearing No. 8129659768 with SIM No. 89919500001108583723 was under tower with Cell ID 5900048753 on 09.08.2014 at 14.42 . This tower ID is deposed by PW51 to be the tower at Kozhikode City. The date 09.08.2014 assumes significance since as per the prosecution it was on the said date that Ext.P3 letter was posted by the appellant from Kozhikode City. PW36 is the Nodal Officer of Vodafone Cellular Ltd., who was examined to elicit evidence regarding use of the two mobile numbers viz., 9745760949 used by the deceased and 9544270118 used by the appellant. He has stated that there were multiple phone calls between these two numbers during 03.08.2014 and 06.08.2014. Call Detail Report (CDR) of both the phones from 01.08.2014 to 10.08.2014 were marked through the said witness as Ext.P43 and Ext.P62. The Customer application, ID proof details, IT certificate, Certificate under Section 65 B of the Information Technology Act etc.with respect to the said numbers have also been marked through him. PW36 had stated that as per Ext.P43 CDR there was a call from the Appellant's number to the deceased's number at 14.42.54 on 06.08.2014. That the two mobile phones viz., the one used by the deceased and the other by the appellant were together under the same tower on 06.08.2014 is also deposed by him. Though PW36 has stated that he could not decipher the tower code with the aid of the documents marked, he has specifically mentioned that he had passed CRL.A NO. 1273 OF 2016 42 2024:KER:60836 on the said information regarding the tower code and its location to the investigating officer. In his cross examination PW36 has stated that if the same person is having possession of both the phones, or if the same phone has a multi SIM slot it is possible that the same tower code would be revealed as against both the phones. He has further clarified that even in multi SIM devices, each number possesses a different unique IMEI number and that since incoming and outgoing calls were noted on both phones, it can only be understood to have been used by different persons. PW51 (Investigating Officer) has in his evidence mentioned about the deciphered tower locations with reference to the tower I.D. numbers. He has deposed that the numbers used by the deceased as well as the appellant were under the same mobile towers and were travelling along the same towers on 04.08.2014 and 05.08.2014 and that there had been a number of calls between the said numbers. On 05.08.2014, the number used by the appellant had moved from the Mananthavady tower in the evening towards Bathery and the number used by the deceased had moved towards Kurava Dweep. As regards the crucial day i.e., 06.08.2014, he has deposed that there were two calls between the said two numbers and that by evening, the said two numbers were under the same tower at Mananthavady and that they were switched off by around 8.30 P.M. on 06.08.2014. Both the numbers were switched on at 8.30 A.M. on 07.08.2014. CRL.A NO. 1273 OF 2016 43 2024:KER:60836 Subsequently, on 09.08.2014, one of the phones had been used from the tower near the Kozhikode Beach Hospital. Thus it could be seen that the Investigating Officer (PW51) had deposed with respect to the towers based on the information received from the nodal officer. Though PW36 could not identify or state the tower location he has specifically deposed that he had informed the relevant towers locations to the investigating officer based on the requests made in the said respect.
46. The evidence thus put forth by the prosecution based on the information gathered from the mobile phones have substantial relevance in supporting the prosecution case. The defence to this substantial evidence put forth by the prosecution was that both the phones could have been with the appellant himself and that the seizure effected of the phones vide Ext. P14 is not reliable and substantiated. Further objection put forth was that the nodal officers were not able to pinpoint the tower location from the tower codes and CDR details. The said objections of the defence has been reliably and cogently overcome by the prosecution evidence. PW3 mother of the deceased and PW4 sister have specifically deposed that the deceased had been using a mobile phone which was given to her by the appellant. There is nothing to disbelieve their said statements. That both the phones were seized from the appellant has been evidenced by Ext.P14 seizure mahazar. Though the seizure is CRL.A NO. 1273 OF 2016 44 2024:KER:60836 challenged stating that the deposition of PW22 through whom Ext.P14 seizure mahazar is sought to be proved does not state that he had seen the actual recovery of the mobile phones or SIM cards from the possession of the appellant, the said challenge does not hold much water as PW22 has specifically stated that he can identify the SIM cards and has proceeded to elaborate on their makes as two SIM cards of Vodafone and one SIM card of Airtel. Nothing valid or reliable has been put forth to disprove the seizure of the phones and SIM cards from the appellant or to challenge the evidence tendered by the nodal officers or the documents marked through them. The CDR details very clearly reveal that the appellant has been in contact with the deceased from 03.08.2014 to 06.08.2014 and that on 06.08.2014 at 14.42.54 there was a call from his mobile to the mobile of the deceased. It is also evidenced from the CDRs that subsequent thereto on 06.08.2014, the two mobile phones used by the appellant and the deceased were under the same tower at Mananthavady and that they were switched off by around 8.30 P.M. The CDR details matches with the deposition of PW4 sister of the deceased that the deceased had received a call on 06.08.2014 from the appellant to reach at Mananthavady and that pursuant to the same, she and her elder sister had seen off the deceased from the 'Kadukka maram' bus stop in the evening of 06.08.2014. The presence of the deceased along with the appellant at Mananthavady in the evening of CRL.A NO. 1273 OF 2016 45 2024:KER:60836 06.08.2014 is corroborated by the CDR details which state that the said two mobile phones used by them were under the same tower at Mananthavady and that they were switched off by around 8.30 P.M. on 06.08.2014. Their subsequent travel by KSRTC bus which started off from Mananthavady at 8.40 PM and deboarding at Pakkam PHC stop is reliably spoken of by PW 50. The cumulative reading of the above evidence thus satisfies the mandates required to meet the 'last seen' theory. Still since the 'last seen' has been termed as a rather weak form of evidence, further scrutiny of the prosecution evidence is necessary to ascertain the culpability of the appellant. Culpability inferred based on Ext.P3 letter:
47. Substantial reliance is placed by the prosecution on a letter which is marked as Ext.P3 said to have been received by PW3, mother of the deceased, on 11.08.2014 i.e., one day subsequent to the finding of the body of the deceased. The depositions of PWs 16, 17, 18 and 19 along with that of PW3 and PW5 assume relevance in this context. PW3 had stated that she had received Ext.P3 letter by post, the contents whereof, in brief, was that she was in Kozhikode and is doing fine. The letter was written in colloquial kattunaika language using Malayalam script. It was purportedly written by the deceased to her mother. The letter did not carry any date.
Transliterated to approximation, Ext.P3 letter reads as follows:
"I am in Kozhikode and I am doing fine. Read this letter to mother and I am not alone. I am with the person at Kozhikode whom elder uncle knows. I CRL.A NO. 1273 OF 2016 46 2024:KER:60836 met him when I went to Mullankolli for work. I am provided with another SIM card and I was taken to Vinod's new house. Send me my certificates when I ask for and take care of my child. I will send money whenever I can. Don't create altercations".
48. PW3 has deposed that her daughter even though she had studied up till 7th standard cannot write. The said letter, though attempted to be served on PW3 by the postman (PW17), he could not do that on 11.08.2014. Hence the letter was handed over to the brother of PW5, who in turn handed it over to PW3. It was PW5 who subsequently handed over the letter to the Police. The letter was seized on 14.08.2014 by Ext.P4 seizure mahazar and the letter reached the court on 19.08.2014. PW16, the postmaster, has deposed that the letter had reached the post office on 11.08.2014 and could not be delivered to the addressee on the same day since the last rites of the deceased were underway on that day. There exists some minor discrepancy in the depositions of PW17 and PW5 with respect to the handing over the letter to the addressee. PW17 has deposed that he had given it to PW3 on 12.08.2014. The letter was read out and translated by PW18, who is a librarian of the Government Engineering College and is acquainted with the language of Kattunaikar. The contents of the letter thus translated and the statement given by PW3 have some contradictions to the extent that translation does not state that she is staying in the room of a Muslim, as deposed by PW3. It has been brought out in evidence that CRL.A NO. 1273 OF 2016 47 2024:KER:60836 towards confirming that appellant is the author of the letter, his specimen handwriting was obtained. Further to cross check his hand writing it is contended that a notebook (MO27) containing his handwriting was seized vide Ext.P10 search list from his house to which Vishnu, father of the appellant (PW46) was a witness. PW46 turned hostile to the prosecution. He denounced the recovery of MO27 book from the house. This volte face by PW 46 has been relied on to challenge the validity of the evidence tendered by the prosecution based on Ext. P3 letter. It is contended that reliance on MO27 to compare the hand writing in Ext.P3 letter as that of appellant lacks valid substantiation since the seizure of MO27 is unreliable. PW37 is the Assistant Director of Forensic Lab, who was examined to prove the comparison of the handwriting in Ext.P3 letter and MO27. Ext.P45 forensic report was marked through him. He has deposed that he has conducted the comparison using zoom stereos microscope and video spectral comparison which are digital devices used for magnification. He has in his report noted 1 to 27 points in the manner of writing based on the individual writing habits and deposed regarding the similarities. Ext.P46 series of samples [P46
(a) and (b) to (i)] were also marked through him. He deposed that he had compared Ext.P3 as well as the sample handwritings viz., Q1 and Q2 with A1 and A2 substantiate Ext.P3 letter has been written by the appellant. A1 examined by him is MO27 note book and A2 is CRL.A NO. 1273 OF 2016 48 2024:KER:60836 Ext.P19 register of the hotel where the appellant and deceased had stayed. PW37 has deposed that he found the signatures as matching with that of the appellant.
49. On the basis of the above, the prosecution contends that the appellant had in order to mislead the family of the deceased forged a letter in the handwriting of the deceased and caused it to be issued to PW3 from Kozhikode in order to make her believe that the deceased was alive and was living in Kozhikode after acquiring a job. The post box from which the letter was posted from Kozhikode has been identified by the prosecution and his mobile number had been traced to the said locality on the relevant day on which the letter was posted. The prosecution thus seeks to buttress the allegations against the appellant based on Ext. P3 letter.
50. Here it assumes relevance to examine the impact of Sec. 8 of the Evidence Act to the extent it concerns subsequent conduct. Sec.8 stipulates that the conduct of any person, an offence against whom is the subject of any proceeding is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Illustration to Sec.8 of the Evidence Act reads as follows:
"A is accused of a crime.
The facts that, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favourable to himself, or that he CRL.A NO. 1273 OF 2016 49 2024:KER:60836 destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or, suborned persons to give false evidence respecting it, are relevant."
Thus if the fabrication and transmission by post of Ext.P3 letter by the appellant and the effect that it could have had on the mother and family members of the deceased could be substantiated, then the contention based on Sec.8 [illustration (e)] that the appellant had through Ext.P3 letter attempted to create an appearance or evidence favourable to himself would have been a relevant fact, the proof of which could have acted as a link pointing towards the appellant.
51. The evidence put forth by the prosecution with respect to Ext.P3 letter relying on the testimonies and evidence tendered by PW 16 (Post master), PW17 (postman), PW18 (Librarian Govt Engineering College-translator) and PW37 (Asst. Director, Forensic Lab) reliably proves that appellant had created Ext.P3 letter and caused to issue the same vide post in Ext.P3 (a) (postal cover) from Kozhikode to influence the family of the deceased to believe that the deceased was alive and was living in Kozhikode. The evidence thus put forth by the prosecution incriminates the appellant revealing his conduct subsequent to the act of causing death of the deceased and is thus a relevant fact. Prosecution alleges that the death of the deceased was due to her willful electrocution by the appellant. Evidence of death by Electrocution:
52. As per the prosecution, electrocution and murder of the CRL.A NO. 1273 OF 2016 50 2024:KER:60836 deceased was carried out by the appellant in the verandah of a kaavalpura which is an isolated thatched hut situated along the forest line and next to a paddy field. The said kaavalpura is used only during harvest season and during the other times of the year, it remains vacant and unoccupied. The prosecution case is that the appellant had on 06.8.2014, after deboarding from the bus at Pakkam PHC, at around 9.30 P.M., while walking home, convinced the deceased to spend that night together in the verandah of the Kaavalpura and while she slept, the appellant had as planned in advance wound an aluminium cable/wire (MO20) on her left leg above the ankle and connected to it a long electric cable wire (MO12) which too he had kept ready for the purpose. Appellant then using MO19 bamboo pole which had a V shaped branch to facilitate looping, hooked the MO12 electric cable/wire on to the overhead 3 phase LT line passing around 10 m from the verandah of the Kaavalpura thus electrocuting the deceased. Death of the deceased upon such electrocution was instantaneous, contends the learned public prosecutor. As per the prosecution appellant had thereafter using MOs 13 to 15 series (spades) buried the body of the deceased along the forest line in a trench. As per Ext.P5 inquest report, the belongings of the deceased including her wearing apparel a yellow colour churidar top she was last seen by her sister PW4 as well as , MOs 1 to 11 and MO 22 bed sheet were recovered from the trench.
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53. The death of the deceased by electrocution is sought to be proved through the deposition of PW21 (Professor of Forensic Medicine) who had issued Ext.P13 Postmortem Report which, inter alia, stated that the cause of death was due to electric shock. Injury number 3 enumerated in P13 was an injury caused by electric shock. The report further stated that the said injury was fatal in nature capable of causing death in the ordinary course. Injury No.3 in Ext.P13 reads as follows:
"A depressed mark over an area 2.5x0.5x0.3 cm transverse with pale base and irregular edges and having firmly adherent blackened skin retained at teh edges and in the middle part of the base at inner aspect of lower part of left leg 2 cm above ankle. There was peeling of skin around the mark (suggestive of electric burn mark) xxx Opinion as to cause of death. Suggestive of death due to electric Shock."
In his cross examination PW21 has specifically answered to the question whether the burn injury should correspond to type of aluminium cable tightly wound upon any part of the human body, he has stated that burn injury depends on the contact area and size depends upon the total area which is in contact with the body and area of burns may be more than the size of the material. He termed his report as provisional subject to the chemical analysis report to rule out the possibility of presence of poison. The Chemical Analysis CRL.A NO. 1273 OF 2016 52 2024:KER:60836 report marked as Ext.P105 ruled out the presence of poison. Thus medical evidence put forth concerning the cause of death of the deceased reliably evidences that the death was caused due to electrocution.
54. The modus of electrocution has been sought to be proved and explained through the testimonies and evidence tendered by PWs 8, 12, 13, and 23, who were witnesses to the seizure of MOs 12 , 15, 19, 20, 21 and 23 as well as regarding the materials seized as per Ext.P10 search list. MOs 12, 19 and 20 were recovered on the basis of the disclosure statement of the appellant vide Exts.P7 and P15 recovery mahazars. PW43 Electrical inspector through whom Ext.P59 report was marked has stated that his inspection of the place of occurrence and the wires and materials alleged to have been used to cause electrocution has revealed to him that it is practically possible to use MOs 12, 19 and 20 and to electrocute the deceased sleeping at the verandah of Kaavalpura tapping current from the overhead electric line as put forth by the prosecution.
55. The prosecution case that the deceased was electrocuted to death has been contested on the ground that there is no evidence forthcoming as to whether the electrocution happened from the verandah (Kolayi) of the Kaavalpura or from inside the same. PW43 Electrical Engineer has deposed that the length of MO12 wire was sufficient enough to reach the overhead LT line from the verandah of CRL.A NO. 1273 OF 2016 53 2024:KER:60836 the kaavalpura. The body of the deceased was recovered from the place where it was buried which was within less than 100m of the Kaavalpura. The practical feasibility of electrocuting a person sleeping at the verandah of the Kaavalpura using MOs 12, 19 and 20 having thus been reliably substantiated by the prosecution through tenable evidence the question whether the electrocution had occurred inside the Kaavalpura or in its verandah outside is of no material relevance. Further, it has been specifically deposed by PW 6 owner of the Kaavalpura that there is a door from the verandah (kolayi) to enter the Kaavalpura. It follows that entry to the Kaaval pura stands restricted by the said door whereas the verandah is open and accessible. Hence the contention of the defence regarding lack of clarity regarding the place of occurrence is unsustainable.
56. Death by electrocution has been challenged also on the premise that the electrical conductivity of the surface of the verandah of the Kaaval pura and as to whether the verandah had a dry or wet surface has not been conclusively proved. This contention however is not sustainable in the light of the evidence tendered by the deposition of PW43 Deputy Electrical Inspector of Kalpetta Electrical Inspectorate who has unequivocally denied the same suggestion pointing out that if electricity passes through a human body, even if there is no earthing there would be a shock and that the place where the deceased was electrocuted was a hut along side a CRL.A NO. 1273 OF 2016 54 2024:KER:60836 paddy field with a pond nearby. therefore the earth would have been sufficiently wet to facilitate electrical conductivity. That lots of plants were around the hut had also been pointed out by PW43 as another factor to substantiate that the earth was wet. Thus the challenge on the ground of electrical conductivity of the surface of the verandah of the Kaavalpura stands negated by reliable evidence.
57. The seizure of MOs 12, 19 and 20 vide Ext.P7 and P15 seizure mahazars, based on the disclosure statements of the appellant, have been challenged as illegal and unsustainable. MO 19 (bamboo stick) and MO 20 (aluminium wire) were recovered from an open space behind the Kaaval pura. MO 12 (cable wire) was recovered based on the disclosure statement of the appellant from beneath a murukku tree. PW 8 and PW 23 were witnesses to the said seizure and they have deposed to the said effect. Their depositions are seen scrutinized by the trial Judge in paras 145 and 146 of the judgment and had validly arrived at a conclusion negating the challenges put forth to the recovery under Sec. 27 of the Indian Evidence Act. Valid and cogent reasons have been stated by the learned trial Judge in paras 147 to 152 of the judgment wherein it had been concluded that the material objects used for electrocuting the deceased were concealed by the appellant and that he had from his knowledge shown the relevant places where it had been concealed. When the Investigating Officer steps into the witness CRL.A NO. 1273 OF 2016 55 2024:KER:60836 box for proving such a disclosure statement, he would be required to narrate what the accused stated to him. The deposition of PW51 investigation officer reveals that the dictum in Babu Sahebagouda Rudragoudar (supra) that the Investigating Officer essentially testifies about the conversation held between himself and the accused which has been taken down into writing leading to the discovery of incriminating facts has been duly complied with. Hence the contentions put forth challenging Section 27 recovery are not sustainable.
Proximity of time and the 'last seen' theory:
58. The period of 'time gap' and its relevance in cases involving 'last seen' theory is well settled. It is trite that the time span between 'last seen' and death of the person - if it is very minimal and no other person's intervention is proved by the prosecution, then it could be reasonably concluded that the accused had a high chance to harm the victim. The burden is thus on the prosecution to explain the time gap which should also rule out the possibility of any interloper meddling in the matter during the relevant period in such a way that the involvement of the accused and him determining the course of events loses its significance.
59. Deceased was last seen with the appellant at around 8.40 P.M. on 06.08.2014 by PW50 when they deboarded from the bus together at Pakkam PHC. Thereafter, in the morning of 10.08.2014 CRL.A NO. 1273 OF 2016 56 2024:KER:60836 her body was exhumed from Narivayal forest not far away from Pakkam PHC. Thus there is a time gap of around four days between the time when the deceased was last seen with the appellant and the recovery of her decomposed body. Four days is a considerable period of time and cannot be termed as minimal. Hence it assumes relevance to closely scrutinise whether there is sufficient evidence put forth by the prosecution to substantiate that there is valid evidence to explain the said time period and that the appellant remains the last person who interacted with the deceased thus excluding all possibility of any interference from a third person till exhumation of the dead body.
60. PW21 examined by the prosecution is the Professor of Forensic Medicine, Medical College, Kozhikode, who had conducted the postmortem examination of the body of the deceased. In Ext. P13 Postmortem Certificate, he has stated that the body of the deceased was in a moderate degree of decomposition. Factors pointing to decomposition stated in the report are: Face was bloated. Tongue bitten and protruded. Scalp hair was peeling off easily. Rigor mortis had passed off from all joints. Post mortem bullae and peeling of superficial layers of skin present at multiple places on the body, more on trunk and upper limbs. Body was discoloured, yellow and greenish black at multiple places. There was "peeling of skin on back of upper part of chest and back of neck with pink mottled CRL.A NO. 1273 OF 2016 57 2024:KER:60836 discolouration". Brain had liquified and was grey in colour. Air passages were empty and lungs were congested. Heart had softened. Stomach was empty with decomposition smell. Liver, kidney and spleen were discoloured due to decomposition. Thus the post mortem report specifically records that body decomposition had set in. However, PW21 who has elaborated on the decomposition of the body has not stated the estimated time of death. This has been contended by the learned counsel for the appellant as fatal to the prosecution case.
61. The above contention that the omission of the doctor to estimate the time of death in the post mortem report negates the 'last seen' theory cannot be countenanced in view of the overwhelming evidence put forth by the prosecution which squarely points to the culpability of the appellant. It has been reliably proved by the prosecution that the deceased was last seen with the appellant at around 8.40 PM on 06.08.2014 and that thereafter her body was exhumed on 10.08.2014 from a place not far from where she was last seen with the appellant. No other person who would have in the natural course of events seen the deceased, including her mother PW3 and sister PW 4 or any other family member had seen the deceased after 06.08.2014. PW 21 doctor has in Ext. P13 Post Mortem Certificate elaborately stated regarding the partial decomposition of the body of the deceased which was lying buried in CRL.A NO. 1273 OF 2016 58 2024:KER:60836 a ditch till it was exhumed four days after the deceased was last seen alive. The decomposition of the body explained by the doctor sufficiently explains the time gap between the night of 06.08.2014 and the morning of 10.08.2014. The time gap mandate in the 'last seen' doctrine is not a straight jacket formula. The reasonableness of the time gap would vary based on the facts and circumstances of each case. The insistence that the time lapse between the commission of the crime and period when the accused and the victim were last seen together should be minimal is a mandate of prudence and is not to be seen as set in stone. The minimal time gap requirement has to be ascertained and fine tuned based on the facts and circumstances of each case. The reasonableness of the time period would depend on whether the prosecution has been able to reliably and cogently explain out the time gap with valid and tenable evidence. Based on the evidence established by the prosecution we conclude that the time lapse of 4 days from the date on which deceased was last seen alive till recovery of her dead body has been reliably and satisfactorily explained by the prosecution totally excluding any possibility of any interlopers or any other factors, intervening and/or influencing the course of the events. We find that the prosecution evidence discussed above effectively narrows down to confirm that the accused and only the accused as the person who had close proximity with the deceased at the last moment and CRL.A NO. 1273 OF 2016 59 2024:KER:60836 capable of decisively deciding the harm that had caused death of the deceased.
Sufficiency of compliance of Sarda and the shifting of burden:
62. The above discussion of the established prosecution evidence leads us to conclude that the prosecution has successfully established the circumstances from which the conclusion of guilt of the appellant could be validity drawn. The evidence put forth and established by the prosecution, is fully consistent with the hypothesis of the guilt of the appellant. In the light of the facts established by the prosecution, no other hypothesis than the guilt of the accused can be drawn. The circumstances established are conclusive in nature and exclude any other hypothesis than the guilt of the accused. Further, the chain of evidence put forth by the prosecution is complete and unerringly points to the guilt of the accused.
63. The continuous chain of circumstances validly established by evidence can be succinctly stated as follows: That the appellant had an intimate relationship with the deceased and that she was pregnant with his child is reliably proved. That social and educational disparity existed between the appellant and the deceased and that the appellant did not hesitate to physically admonish the deceased at times has also been brought out in evidence. That the appellant and the deceased were together from 03.08.2014 to 5.08.2014 and they had visited the Parassinikadavu CRL.A NO. 1273 OF 2016 60 2024:KER:60836 temple and stayed together for a night at Nakshathra Tourist Home is also validly and tenable established. That after return from Parassinikadavu, deceased had met her younger sister at the latter's house on 06.08.2014 and that she was seen off from the 'Kadukka maram' bus stop to Manathavady by her two sisters in the evening of 06.08.2014 to meet the appellant and that she was wearing a yellow churidar top is reliably proved. That the appellant and the deceased were together at Manathavady on 08.06.2014 is reliably proved by the CDR details of their mobile phones. That they had travelled by bus on the very same day at 8.40 pm and had alighted at Pakkam PHC are established by cogent evidence. That the appellant had caused Ext.P3 letter to be issued to the mother of the deceased to make her believe that the deceased was safe and well in Kozhikode has been tenably put forth. That the partially decomposed body of the deceased was exhumed from a pit on 10.08.2014 and that the postmortem report evidenced that she had died due to electrocution has been validly proved. That from the trench along with the body of the deceased, a bed sheet was recovered, the pillow covers of which were recovered from the house of the appellant. That based on the disclosure statements of the appellant recovery of improvised equipment used for electrocution was effected from the vicinity of near the Kaaval pura along which a 3 phase LT power head power lines were plying is also proved by the prosecution with cogent CRL.A NO. 1273 OF 2016 61 2024:KER:60836 evidence. The length and sufficiency of the equipments to electrocute the deceased in the verandah of the Kaavalpura has been reliably proved through expert witnesses. The injury and cause of death due to electrocution is reliably proved. The DNA samples of the foetus found in the womb of the deceased and that of the appellant reveal that the appellant is the father of the foetus. That appellant had after causing the death of the deceased absconded to Kannur and was apprehended from there is also validly proved by the prosecution through cogent evidence.
64. With the chain of circumstances complete as above, no reasonable ground to draw a conclusion of innocence of the appellant exists. It has thus been proved by the prosecution with incontrovertible evidence that the appellant has through his willful deliberate act of electrocution, caused the death of the deceased.
65. It is trite that once the last seen theory is proved coupled with other circumstances such as the time when the deceased was last seen with the accused, the accused owes an explanation under Section 106 of the Evidence Act with regard to the circumstances under which death might have taken place. If the accused offers no explanation or furnishes a wrong explanation, or absconds, motive is established and some other corroborative evidence forming a chain of circumstances is established, then conviction could be based on such evidence.
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66. In Perumal Raja @ Perumal v. State represented by Inspector of Police (supra) affirmatively relied on the decision in Deonandan Mishra v. State of Bihar [(1955) 2 SCR 570] wherein the following principle regarding circumstantial evidence and the failure of accused to adduce any explanation was laid down:
"It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence."
67. In Perumal Raja's case (supra) the accused had denied all accusations without furnishing any explanation regarding his knowledge of the places from which the dead body was recovered. In the said circumstance, the failure of the accused to present evidence on his behalf or to offer any cogent explanation regarding the recovery of the dead body by virtue of his special knowledge, was held by the Supreme Court to lead to a reasonable adverse inference, by application of the principle under Section 106 of the Evidence Act thus forming an additional link in the chain of circumstances. It was CRL.A NO. 1273 OF 2016 63 2024:KER:60836 held by the Supreme Court that the additional link further affirms the conclusion of guilt as indicated by the prosecution evidence.
68. The appreciation of evidence by us has revealed a chain of circumstances unerringly pointing towards the guilt of the accused. The said circumstances taken cumulatively forms a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellant. We note that the circumstances so revealed are incapable of any explanation or any hypothesis other than that of the guilt of the accused and are inconsistent with his innocence. Failure of the appellant to provide any explanation constitutes the additional link that completes the chain.
69. The appellant had been charged under Regulation 12 and 19(3) of Central Electricity Authority (Measures Relating to Safety and Electricity Supply) Regulation 2010 and Section 135(a)(e) of the Electricity Act, 2003. The learned Sessions Jude had after due appreciation of evidence convicted the appellant and sentenced him to undergo rigorous imprisonment for three years. We find the same valid and sustainable.
Conclusion:
70. From the above discussion, we conclude that the prosecution has established circumstantial evidence beyond a reasonable doubt. The circumstances from which an inference of CRL.A NO. 1273 OF 2016 64 2024:KER:60836 guilt is sought to be drawn has been conjointly and firmly established by the evidence tendered by the prosecution. The evidence put forth does unerringly point towards the guilt of the accused. Cumulatively taken, the circumstances put forth by the prosecution against the appellant forms a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the appellant and none else.
71. Since the circumstances proved and corroborated unerringly point to no other hypothesis than that of the guilt of the appellant and as the evidence adduced unequivocally points to the guilt of the appellant in the offence, we find no reason to interfere with the finding of conviction and sentence arrived at by the learned Sessions Judge. Consequently, the conviction and sentence of the appellant under Sections 201 and 302 of the IPC as well as under
Regulation 12, 19(3) of Central Electricity Authority (Measures Relating to Safety and Electricity Supply) Regulation 2010 and Section 135(a)(e) of the Electricity Act, 2003 are upheld.
Appeal dismissed.
Sd/-
DR.A.K.JAYASANKARAN NAMBIAR JUDGE Sd/-
SYAM KUMAR V.M. JUDGE csl