Kerala High Court
Anil Kumar vs State Of Kerala on 9 April, 2019
Bench: A.M.Shaffique, Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
TUESDAY, THE 09TH DAY OF APRIL 2019 / 19TH CHAITHRA, 1941
CRL.A.No. 1112 of 2014
AGAINST THE JUDGMENT IN SC 1230/2007 of II ADDITIONAL
SESSIONS COURT, THIRUVANANTHAPURAM DATED 15-12-2010
AGAINST CP 40/2007 of JUDICIAL MAGISTRATE OF FIRST CLASS
-II,ATTINGAL
CRIME NO. 642/2005 OF Mangalapuram Police Station,
Thiruvananthapuram
APPELLANT/ACCUSED:
ANIL KUMAR
S/O.CHELLAPPAN PILLAI,EDAVILAKATHU
VEEDU,MANGATTOKONAM,ALENARA WARD,AYROORPPARA
VILLAGE,THIRUVANANTHAPURAM.
BY ADVS.
SRI.A.ABDUL HAKKIM
SMT.S.S.LOVE LIN SITHARA
SRI.A.CHANDRA BABU
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA,ERNAKULAM-682031.
BY ADVS.
SMT.AMBIKA DEVI S, SPL.PP ATROCITIES AGAINST
WOMEN & CHILDREN
SR.PP.K.B. UDAYAKUMAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.03.2019, THE COURT ON 9.4.2019 DELIVERED THE FOLLOWING:
Crl.Appeal No.1112/2014
-:2:-
JUDGMENT
Shaffique, J.
This appeal has been preferred by the appellant Anil Kumar challenging the verdict of the 2nd Additional Sessions Court, Thiruvananthapuram in S.C. No. 1230 of 2007 arising out of Crime No. 642 of 2005 by which he was found guilty for offence under Section 302 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to undergo imprisonment for life and to pay a fine of `50,000/- (Rupees Fifty Thousand only) with a default stipulation of rigorous imprisonment for one year.
2. Prosecution allegation is as follows:
The deceased Komala Amma was the mother of the appellant. PW11 Chellappan Pillai was the husband of the deceased and father of the appellant. Komala Amma and Chellappan Pillai begot three children - the appellant Anil Kumar, PW12 Suresh Kumar and PW7 Sindhu. All three children were residing separately during the relevant time. PW11 and the Crl.Appeal No.1112/2014 -:3:- deceased were residing in the house bearing No. KP XIII 88, Idavilakathu veedu, Mangattukonam, Alenera ward, Ayirupara Village, Thiruvananthapuram. Due to difference of opinion between the appellant and the deceased over property, the appellant along with his wife shifted to a rented house at Mangalapuram. PW11 was working as a security guard and every day he used to go for job at 04.00 P.M. leaving the deceased alone in the house and come back only by 07.00 A.M. next day. The property in which the above-mentioned house was situated extended up to 10 cents and it originally belonged to PW11. At the instance of the deceased, the said property was gifted to PW7, their daughter. Since then, the appellant began to create problems at home and he was in the habit of picking up quarrels and beating the deceased, PW11, PW12 and PW8 who is the husband of PW7. On 25/08/2005 in the evening, while the deceased was alone in the house, the appellant came to the house and quarrelled with the deceased. He attempted to beat his mother using MO1 scrapper. Following the same, the Crl.Appeal No.1112/2014 -:4:- deceased ran away and took shelter at the house of PW1, a neighbour. On that night, Komala Amma slept in the house of PW1. On the next day at 05.00 A.M., she left the house of PW1 and went to her house and sat in a chair placed in the cow shed situated on the rear side of the house. By 06.45 A.M., the appellant came to the cow shed and kicked at her lower abdomen with an intention and knowledge to kill the deceased. When the deceased fell down, the appellant tied her neck with one end of MO4(a) rope and tied the other end of the rope on the roof of the cow shed and strangulated her to death.
3. By 08.00 A.M., PW1 heard a cry from the house of the deceased and as she reached there, she found Komala Amma dead in the cow shed. PW3 also reached the spot. They found marks on the neck of the deceased and MO4(a) rope near her. PW7, PW8, PW11 and PW12 also reached the spot. PW1 gave Ext.P1 FIS to Police. Ext.P1(a) is the FIR registered by PW9 under Section 174 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.').
Crl.Appeal No.1112/2014-:5:-
4. Prosecution examined PW1 to PW13 as witnesses, marked documents Exts.P1 to P12 and identified MO1 to MO8 objects. On 313 examination, the appellant denied all incriminating circumstances levelled against him. He pleaded that he is totally innocent and that he was falsely implicated by the police at the instance of his family members who were on inimical terms with him.
5. Learned counsel appearing for the appellant Sri.Nemom Chandrababu argued that there is no evidence to connect the appellant with the crime. Prosecution failed to prove the case and they could not bring the real culprit before law. The appellant was falsely implicated. The cause of death is suspicious. Doctor who conducted the autopsy did not rule out the possibility of death by hanging. Admittedly, there is no direct evidence. The circumstances relied on by the trial Court cannot even be treated as legal evidence. It can be seen that there is no mark of any scuffle at the alleged place of occurrence. Prosecution did not adduce even a single piece of evidence to Crl.Appeal No.1112/2014 -:6:- show that the appellant and the deceased were last seen together at the relevant time. There is no investigation about the possible involvement of one Sundaran who used to come everyday around 05.00 A.M. at the house in which the incident took place. Nothing is available in evidence to show that the appellant herein strangulated his mother. The allegation is so serious but evidence is so meagre. The trial Court erred in its conclusion. He pleaded for an acquittal extending benefit of doubt to the appellant.
6. On the other hand, learned Senior Public Prosecutor Sri.K.B.Udayakumar argued that prosecution proved the case against the appellant beyond the shadow of reasonable doubt. Court below is justified in convicting the appellant herein. Motive is clearly established by the prosecution. Even on the previous day of the incident, the appellant tried to assault his mother and she took shelter in PW1's house. It is also in evidence that the victim had gone back to her house by next day 05.00 A.M. There is evidence to show that the appellant was seen near the place of Crl.Appeal No.1112/2014 -:7:- occurrence by 07.00 A.M. Evidence on record including medical and other scientific evidence clearly establishes the involvement of the appellant in the crime. He prayed to dismiss the appeal holding it as one which lacks merit.
7. We heard both counsel in detail and perused the evidence on record. The questions to be decided by us are:
(i) Whether the death of Komala Amma was a homicide as found by the trial Court.
(ii) Whether the appellant herein caused the death of Komala Amma, his mother, as alleged by the prosecution and found true by the trial Court.
8. Evidence adduced by the prosecution, in brief, are as follows: PW11 is the husband of the deceased and father of the appellant. He turned hostile to the prosecution. PW7 is the sister of the appellant and PW12 is his brother. PW8 is the son-in-law of the victim and he is an attestor to Ext.P4 scene mahazar. PW1 is the neighbour in whose house the victim had slept the previous night of the incident, fearing the assault of the appellant. PW3 is Crl.Appeal No.1112/2014 -:8:- another neighbour who reached the spot immediately after the corpse was found in the cow shed of the victim's house. PW4 is an attestor to Ext.P2 inquest report. PW5 is a neighbour who had seen the appellant going in haste from the house of the victim through the rear side of his house in the morning at 07.00 A.M. PW6 is the Village Officer who prepared Ext.P3 site plan. PW9 is the then Head Constable of Mangalapuram Police Station who was on G.D. charge on 26/08/2005. Based on Ext.P1 information, he registered Ext.P1(a) FIR under Section 174 of Cr.P.C. PW10 is the Doctor who conducted the autopsy of the deceased and Ext.P7 is the post-mortem certificate issued by her. PW13 is the C.I. of Police, Kazhakkoottam. He took over the investigation on 28/08/2005. Inquest was conducted by CW15 on 26/08/2005 and Ext.P2 is the report. MO1 scrapper, MO2 cloth, MO3 slippers, MO5 dresses, MO6 ear rings and MO7 chain of the deceased and MO4 series ropes allegedly used for strangulation and MO8 cellophane tape pressings on the neck of the deceased were seized at the time of inquest by CW15. PW13 the Circle Inspector of Police Crl.Appeal No.1112/2014 -:9:- prepared Ext.P4 scene mahazar, sent material objects to Court through Ext.P11 151-A form, sent MO4 series objects for chemical examination through Court as per Ext.P9 for which Ext.P12 is the report, arrested the appellant on 30/08/2005 at 06.00 P.M. for which Ext.P6 is the arrest intimation and through Ext.P10 report, offence under Section 302 was incorporated. He completed the investigation and laid the charge-sheet against the appellant.
9. Admittedly, there is no direct evidence in this case. Prosecution relies on circumstantial evidence to prove the case. Court below found that the death of Komala Amma was a homicide and that the appellant herein committed the same. To arrive at the said conclusion, Court below believed and relied on the following circumstances put forth by the prosecution against the appellant:
a) Deceased and her husband, PW11, were only persons occupying the house in front of the cow shed in which the deceased was found dead. PW2 is a security guard who leaves home for job on every day including the fateful day, at 4 p.m and comes back only on the next day at 7 a.m. leaving the deceased alone in the night at the house.Crl.Appeal No.1112/2014
-:10:-
b) On the previous day, i.e., on 25/8/2005 at 8 p.m, the accused came to the house of the deceased and had quarrel with her and beat and kicked her and when she ran the accused chased her with MO1 scrapper.
c) After escaping from the attempt of attack by the accused, the deceased took shelter at the house of PW1 and she slept there in that night.
d) The accused slept at the house of the deceased.
e) On the date of incident at 5 a.m the deceased left the house of PW1 and went to her own house.
f) The accused was found going away from the house of the deceased in a hurry and in a perplexed manner by PW5 at about the time when the offence must have been committed.
g) A little later PW1 and PW2 heard a cry from the house of the deceased and when they rushed to the house they could find the deceased dead in the cow shed.
h) Marks were found on the neck of the deceased and MO4 series was found near the body of the deceased.
i) There was a dispute with regard to the property and bitter enmity between the accused and the deceased regarding the assignment of 10 cents of land that belonged to PW11 in favour of the sister of the accused namely Sindhu, PW7 at the instigation of the deceased.
j) That the accused was quarrelsome in nature and used to manhandle Crl.Appeal No.1112/2014 -:11:- the deceased, PW7, PW11, PW12.
k) The recovery of MO1 from the property in front of the house of PW3.
l) The accused absconded immediately after the incident and he did not participate in the funeral ceremonies and he could be arrested only after 5 days.
m) The accused has no other explanation for the death of his mother.
10. Coming to the nature of death, it can be seen that originally the case was registered under Section 174 of Cr.P.C. Later Section 302 was added through Ext.P10 report. Ext.P2 is the inquest report prepared on 26/08/2005 by CW15. PW10 is the Doctor who conducted the autopsy of the victim. She issued Ext.P7 post-mortem certificate. She deposed that she noted the following ante-mortem injuries on the corpse of the victim:
1. Contusion of scalp 2.5x2.5x0.5 cm, overlying the left parietal eminence.
2. Contusion 20cm long encircling the whole circumference and involving the whole thickness of small intestine 148 cm. Proximal to ileo caecal junction.
3. Contusion 13cm long encircling the whole circumference and thickness of small intestines 45 cm proximal to injury No.2.
4. Pressure abrasion 29 cm long, obliquely placed on the Crl.Appeal No.1112/2014 -:12:- front, left side and back of neck with a discontinuity of 5 cm on the right side of front of neck. The right front end was placed 5.5 cm to the right of midline and 1 cm below the lower border of jaw bone (0.7 cm broad), 5 cm below chin (0.5 cm broad), 6 cm below left ear (0.6 cm broad) and 10 cm below occiput, 0.7 cm broad and the right back end was 2 cm behind and 1 cm below right ear lobule (0.7 cm broad). Flap dissection of neck was done under a bloodless field. The subcutaneous tissue, underneath appeared normal. The other neck structures including muscles, vessels, hyoid bone and cartilages appeared intact and normal.
According to her, the findings are consistent with death due to constriction force on the neck. Death might have occurred approximately 18 hours prior to post-mortem examination. Injury no.1 could be caused by a blunt force. Injury nos. 2 and 3 could be caused by kicking or stamping and those injuries can independently make a person unconscious. It is her version that injury no.4 can be caused by a ligature material like MO4(a). She further opined that the possibility in this case, taking note of the contusion and pressure abrasion on the neck, is more towards homicidal death than suicidal death. The possibility of a normal person becoming unconscious after sustaining injury nos.2 and 3 Crl.Appeal No.1112/2014 -:13:- cannot be ruled out. During cross-examination, she stated that injury no.1 which is a simple injury could be caused by a fall also. Injury nos. 2 and 3 are fresh contusions. According to her, the last sentence in Ext.P7 in injury no.4 indicates that the pressure applied on neck was sustained one and not intermittent one. She stated that she cannot rule out the possibility of hanging. There were no other injuries around the neck. In order to cause injury no.2, the most appropriate position of the victim is lying down supine position.
11. As far as the circumstances enumerated in the trial Court judgment is concerned, whether they form a complete chain of circumstances which unerringly points to the guilt of the appellant needs to be looked into. There is no ambiguity about the fact that the death was due to constriction force applied to the neck. As is evident from medical evidence, the Doctor did not rule out the possibility of hanging also. If it is a case of hanging, the only question to be looked into is whether there is evidence to show that the appellant herein was the one who hanged her or Crl.Appeal No.1112/2014 -:14:- that she herself hanged. To decide these aspects, it is apt to look into the evidence of witnesses in detail.
12. Crucial circumstances were alleged to be deposed by PW1, PW2, PW3, PW5, PW6, PW7, PW8, PW11 and PW12. Their evidence are as follows:
PW1 deposed that she is a relative of the deceased and they were neighbours. Her house is about 100 metres away from the house of the deceased. It is possible to hear sound from the house of the deceased if it is louder. It is her version that the appellant, PW12 and PW7 are children of the deceased and PW11 and PW8 is their son-in-law. At the time of incident, all the children were living separately. The appellant married two months prior to the incident and was residing in a rented house. The appellant was in the habit of consuming alcohol and causing issues and due to the same, the neighbours and relatives were not pleased with the appellant. She deposed that, on 26/08/2005, the deceased was found dead. On 25/08/2005 at 08.00 P.M., there was a quarrel between the appellant and the deceased and the Crl.Appeal No.1112/2014 -:15:- appellant had beaten the deceased. The deceased came to her house at 09.00 P.M. She tried to contact her son Suresh from the phone of PW1's son but could not get. On the request of the deceased, she permitted her to sleep in her house. On the next day early morning, by 05.00 O'clock, she went back to her own house. By about 08.00 A.M., PW1 heard a cry from the house of the deceased. She went to the house of Komala Amma and saw the deceased lying on the coconut husk and leaves in the cowshed near to her house with her face upwards. PW1 understood that Komala Amma was dead. She noticed marks of rope being wound around the neck. Rope was also found there. She also deposed that PW11 is a security guard and he was in the habit of going for his job at 04.00 P.M. and comes back at 07.00 A.M. next day. She identified the appellant in Court. She further stated that the appellant had assaulted PW11, PW12 and PW8. She stated that she did not try to prevent the appellant from beating the victim as she was afraid of the appellant. According to her, the appellant attacked the victim because of his enmity Crl.Appeal No.1112/2014 -:16:- towards his mother for her role in causing PW11 to transfer 10 cents of property to their daughter PW7 as gift. According to her, on the previous day of the incident in question, PW11 went for his work and reached by 07.00 A.M. On 26/08/2005. She proved Ext.P1, FIS given by her before Police. During cross-examination, she stated that she had given Ext.P1 at the time when the dead body was lying in the cowshed. She also stated that the husband (PW11), children and son-in-law (PW8) of the victim were also there. There were a lot of people including the police officials.
Police had taken down her statement. By the time she reached the cowshed, there were 10 people and PW11 and the children of the deceased were not there at that time. The deceased never slept in her house earlier as she did on 25/08/2005. The deceased was in cordial relationship with other children and neighbours. The appellant was in the habit of picking up quarrel with the deceased. She admitted that she had not seen the appellant kicking and beating the deceased. She denied the suggestion that it was her son who had brought down the Crl.Appeal No.1112/2014 -:17:- deceased while she was found on the rope. She further stated that she participated in the marriage of the appellant and he has wife and two children of tender age.
13. PW2 Kumari is a neighbour of the deceased. She stated that the victim died on 26/08/2005. The deceased was residing with her husband (PW11) who was a security guard. On 25/08/2005 by 04.00 P.M., PW11 went for his work. By about 08.00 P.M., she heard quarrel from the house of the deceased. The appellant followed the victim with a scraper to hit her and she ran. PW2 did not go there because she feared that the appellant would beat her. She has seen Komala Amma by 09.00 P.M. Komala Amma went to the house of PW1 stating that she was going to make a phone call to her son. PW11 reached the house of victim on the next day at 07.00 A.M. PW2 went to the house of the victim and saw PW11. PW11 told her that Komala Amma is missing. PW11 told her that Komala Amma might have gone to the house of her son or daughter and he is going there. Sundaran who is a neighbour came there seeking PW11. PW2 Crl.Appeal No.1112/2014 -:18:- went to PW11's house. She saw the chappals of Komala Amma near the cowshed. She peeped through the cowshed and saw Komala Amma lying with her face upward. She noticed marks on the neck of Komala Amma. There was a rope near the body of Komala Amma. She cried aloud. She understood that Komala Amma is dead. People gathered there. She further deposed that her house is at a short distance from the house of Komala Amma, and that she could hear if any commotion takes place in Komala Amma's house. On the previous day of Komala Amma's death, throughout the night, loud conversation was heard. She heard sound of spitting and screaming. PW2 stated that the appellant entertained animosity towards the victim due to the gifting of 10 cents of property belonging to PW11 at the persuasion of the deceased to PW7 their daughter. The deceased slept on that night in the house of PW1. The appellant was in the habit of making quarrels. He attacked his brother and father earlier. She also stated that she is fearful of the appellant. During cross- examination, she deposed that she heard the voice of the Crl.Appeal No.1112/2014 -:19:- appellant after 09.00 P.M. also. She stated that she had seen the appellant in the house of the deceased on the previous day of the incident. She admitted that she did not have such a case earlier. The victim had told her that she was planning to go to her younger son's house. She had seen Sundaran in the house of the deceased in the morning on the date of incident. There was nobody else in the house of the deceased at the time when she had seen Sundaran. She stated that she had seen the earlier incidents of attack by the appellant on PW11, PW12 and PW8.
14. PW3 Kamalamani Amma also deposed in tune with the above witnesses. She added that the appellant had not participated in the cremation of the deceased. During cross- examination, she admitted that she had no case before the police that she had seen the appellant kicking the deceased on the previous day of the incident. The statement that she had seen the appellant inside the house of the deceased on the previous day was also brought out as omission. She stated that the appellant got married and that she also participated in the Crl.Appeal No.1112/2014 -:20:- marriage function. But PW7 and PW8 did not participate.
15. PW5 Vinod Kumar is a neighbour of the deceased. He stated that Komala Amma died on 26/08/2005. It is his version that he had seen the appellant walking in pace near his house from the house of the deceased towards Mangattukonam by around 07.00 A.M. on 26/08/2005. PW5 was standing behind his house brushing his teeth at that time. He reiterated that the appellant was moving very fast. He identified MO1 scrapper. In cross-examination, he stated that there are other roads to reach the house of the deceased apart from his compound. Ext.D1 is marked through him. It is his version that the appellant was not present in the house of the deceased when he had gone there at 10.00 A.M. on the date of incident.
16. PW7 is the daughter of the deceased. She deposed the motive of the appellant for the commission of the crime. PW8 is the husband of PW7. PW11 is the husband of the deceased. He was declared hostile to the prosecution. Exts.P8 and P8(a) contradictions were marked through him. PW12 is the brother of Crl.Appeal No.1112/2014 -:21:- the appellant and son of the deceased and PW11. He also deposed regarding the motive for the commission of the offence. None of these witnesses has a case regarding what had happened on the previous day and in the morning hours of 26/08/2005.
17. On our anxious perusal of entire evidence on record, nothing is available to hold that the appellant was last seen with the deceased on 26/08/2005 between 05.00 A.M. and 07.00 A.M. Of course, there is evidence to show that there was a quarrel between the appellant and the deceased on 25/08/2005 at about 08.00 P.M. It is also in evidence that the victim took shelter in the house of PW1 and she had slept there that night. She left the house of PW1 by 05.00 A.M. What had happened between 05.00 A.M. and 08.00 A.M. on the fateful day is not fully established by the prosecution. It is in evidence that one Sundaran was seen by PW3 in the house of the deceased in the morning. It is also in evidence that PW11 reached the house by 07.00 A.M. But there is absolutely nothing to show that the appellant was present at the Crl.Appeal No.1112/2014 -:22:- house of the deceased or near the cowshed where the incident took place. No scientific evidence like finger prints or any material objects connecting the appellant with the crime is available in this case. Only evidence available is that the appellant was seen walking fast by PW5 near his house. But the appellant has a case he was present at the time when PW11 and other children of the deceased were present near the body of the victim. PW1 also stated that the children of the victim were present at the time when she had gone there. Prosecution did not specifically prove that the appellant was not among them. It probabilize the version of the appellant. Flaws in investigation is evident. No attempt is made by the investigating agency to collect scientific evidence. Even the cause of death is not proved to the satisfaction of the Court. When the medical evidence did not rule out the possibility of hanging, it is the burden of the prosecution to rule it out through other evidence and to prove their case of homicide. In the absence of the same, the benefit of doubt must go to the appellant. There is no evidence to show that Crl.Appeal No.1112/2014 -:23:- the appellant was present at the house of the deceased between 05.00 A.M. and 07.00 A.M. on 26/08/2005. Presence of the appellant near the place of occurrence creates suspicion which we also entertain. But it cannot go further. Of course, motive for the crime is proved by the prosecution. But prosecution did not rule out the possibility of third party involvement in the crime beyond reasonable doubt. We do not know for sure who had done it or how the death happened. In a case based on circumstantial evidence, it is the burden of the prosecution to prove the chain of circumstance which leads to only one hypothesis and that is the guilt of the accused. In the case at hand, even after the entire chain of events are placed one after the other, there are many missing links and some of them, as detailed above, are very material. Under such circumstances, we are of the view that the appellant must be extended with benefit of doubt.
In the result, the appeal is allowed. Conviction and sentence passed by the learned Sessions Judge is hereby set aside by extending benefit of doubt. The appellant is to be released Crl.Appeal No.1112/2014 -:24:- forthwith, if his presence is not required in connection with any other case.
Sd/-
A.M.SHAFFIQUE JUDGE Sd/-
ASHOK MENON
Rp //True Copy// JUDGE
PS to Judge