Kerala High Court
State Of Kerala vs Sudarsanan on 27 June, 2014
Author: P.B.Suresh Kumar
Bench: Thottathil B.Radhakrishnan, P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 27TH DAY OF JUNE 2014/6TH ASHADHA, 1936`
CRL.A.No. 1217 of 2009 ( )
---------------------------
SC 717/1999 of ADDITIONAL SESSIONS COURT, FAST TRACK (ADHOC)-II,
THIRUVANANTHAPURAM
APPELLANT/COMPLAINANT :
---------------------------
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,
HIOGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. ROY THOMAS.
RESPONDENTS/ACCUSED :
-----------------------
1. SUDARSANAN,
S/O. THANGAPPAN, KALLASHIZIL VEEDU,
MUNDA DESOM, MUNDA VARKALA VILLAGE
2. NAZARKHAN, S/O. ABDUL HAMEED,
CHARUVILA - PUTHAN VEEDU,
NEAR CHERUKUNNAM MANDUVADA,
CHERUKUNNAM DESOM, VARKALA VILLAGE
3. BROOZ @ NIZAMUDEEN, S/O. SAHID,
CHARUVILAKOCHU VEEDU, NEAR MADAN NADU,
CHERUKUNNAM DESOM, VARKALA VILLAGE
CRL.A.No. 1217 of 2009
4. JAFARKHAN, S/O. HABEEDULLY, OLIPUVILA VEEDU,
NEAR CHERUKUNNAM MADAN NADA,
CHERUKUNNAM DESOM, VARKALA VILLAGE
R1 TO R2 BY ADVS.SRI.R.T.PRADEEP
SRI.V.VIJULAL
R3 & R4 BY ADVS.SRI.R.BINDU (SASTHAMANGALAM)
SRI.R.JAYAKRISHNAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.06.2014, THE
COURT ON 27.06.2014 DELIVERED THE FOLLOWING:
smv
C.R.
THOTTATHIL B.RADHAKRISHNAN
&
P.B.SURESH KUMAR, JJ.
-----------------------------------------------
Crl. Appeal No.1217 of 2009
-----------------------------------------------
Dated 27th June, 2014.
J U D G M E N T
P.B.Suresh Kumar, J.
This appeal by the State is directed against the order of acquittal in S.C.No.717 of 1999 on the file of the Additional Sessions Court, Fast Track (Adhoc) No.II, Thiruvananthapuram.
2. The accused in the said case were charged with the offence punishable under Section 302, read with Section 34, of the Indian Penal Code, alleging that the father of PW1, Krishnapillai has been spreading a scandal that PW2, the wife of the accused No.1, is maintaining illicit relationships with accused Nos.2 to 4 and that on 9.6.1998, at about 7.35 p.m., when Krishnapillai came to the house of PW2 to pay the cost of the cow dung purchased by him from her, the accused, on a Crl.A.No.1217/09 2 misunderstanding that he came there to lure PW2 for sexual intercourse, assaulted and strangulated him on the veranda of the house of PW2 and when he fell unconscious, the accused in furtherance of their common intention to cause his death, removed him from the veranda and put him in the well, within the property of PW2 and thereby caused his death.
3. On the same day itself, based on the information furnished by PW1, the son of the deceased, a case was registered. The body of the deceased was later removed from the well and the inquest and post mortem examination were conducted. In the meanwhile, PW24 took over the investigation of the case. In the course of the investigation, PW24 recovered the material objects found in the premises of the house of PW2. He had also caused the forensic experts to collect the material objects required for forensic examination. He had also arrested the accused. After the arrest, based on a disclosure statement given by accused No.1, PW24 recovered a few clothes worn by the accused at the time of the alleged occurrence. Later, on completion of the investigation, PW24 submitted the final report.
4. The learned Magistrate before whom the final report was submitted, after completing the procedural formalities, Crl.A.No.1217/09 3 committed the accused to trial. Thereupon, the learned Sessions Judge framed charge against the accused. When the charge was read over and explained, the accused pleaded not guilty. The prosecution, therefore, examined Pws.1 to 24, marked Exts.P1 to P24 documents and identified Mos.1 to 28, to establish the guilt of the accused.
5. Among the documents marked, Ext.P1 is the First Information statement, Ext.P1(a) is the First Information Report, Ext.P3 is the scene mahazar, Ext.P4 is the recovery mahazar of the material objects, Ext.P5 is the post mortem certificate, Ext.P6 is the scene examination report prepared by the forensic expert, Ext. P23 is the report of the Forensic Science Laboratory, Ext.P16 is the recovery mahazar of the clothes worn by the accused at the time of occurrence and Ext.P16(a) is the disclosure statement of accused No.1.
6. Among the witnesses examined, PW1 was the son of the deceased, who gave Ext.P1 F.I. statement. PW2 was the wife of accused No.1. PW3 was a neighbour of PW2. PW9 was the driver of the auto rickshaw, in which the accused Nos.1 and 3 allegedly travelled on the date of occurrence. PW11 was a contractor, who has engaged accused Nos.1 and 2 for a work. Crl.A.No.1217/09 4 PW13 was a co-worker of accused Nos.1 and 2.
7. After the prosecution evidence, when the incriminating circumstances appeared in the evidence were put to the accused, without offering any explanation, they took the stand that they are innocent.
8. The Sessions Court, on an evaluation of the evidence on record, found that the death of Krishnapillai was a homicide. Coming to the issue relating to the complicity of the accused, the court found that, there was no satisfactory evidence for the presence of the deceased at the scene of occurrence and there was no satisfactory evidence to indicate that the inmates in the house of PW2 were available in the house at the time of occurrence, and therefore, merely because a few of the belongings of the deceased were found at the scene, it cannot be said that the accused or any of them had caused the death of the deceased. On account of the aforesaid reasons, the court did not give much importance to the blood stains of the same blood group of the deceased, in the material objects recovered from the scene. The Court observed that the scene of occurrence being an open place, the possibility of somebody else coming to the scene cannot be ruled out. The Sessions Court though took note Crl.A.No.1217/09 5 of the fact that PW3 had given evidence to the effect that he had seen accused Nos. 1 and 2 going to the residence of PW2 on the date of occurrence, at about 6.30 p.m., it felt that his evidence is not worthy enough to be acted upon to establish the presence of accused Nos.1 and 2 at the scene of occurrence at the relevant time. As the recovery of MOs. 1, 4, 5, 6, 7, 9 and 14 to 19 were effected about two days after the occurrence from the veranda of the house of PW2, which is an open place, and as there are no convincing materials to hold that the scene was guarded till the recovery, the court did not give much importance to the said recovery also. The improbability of the accused keeping the personal belongings of the deceased and material objects having blood stains at the veranda of the house itself also created a strong suspicion in the mind of the court as to their complicity in the crime. The court found that the presence of the blood stains of the same blood group of the deceased in MO10 cloth, alleged to have been worn by the accused No.1, may not be of much relevance, as there is nothing on record to indicate as to the blood groups of the inmates in the house of PW2, including accused No.1. To sum up, the Sessions Court concluded that the circumstances established would only show possibilities and Crl.A.No.1217/09 6 probabilities against the accused and the same are not sufficient to establish their guilt.
9. We have heard the learned Public Prosecutor for the State, Adv.R.T.Pradeep for accused Nos.1 and 2 and Adv.Bindu Sasthamangalam for accused Nos.3 and 4.
10. This being a case which rests on circumstantial evidence, the learned Public Prosecutor culled out a few circumstances from the materials on record and argued that those circumstances would establish the guilt of the accused beyond reasonable doubt. The circumstances pointed out by the learned Public Prosecutor were (i) that the dead body of the deceased was found in the well within the residential property of PW2, (ii) that accused No.1 is ordinarily residing in the house of PW2, (iii) that PW3 has seen accused Nos.1 and 2 moving towards the house of PW2 by about 6.30 p.m. and going back by about 8.30 p.m. on the date of occurrence, (iv) that PW9 has seen accused Nos.1 and 3 together on the date of occurrence at about 8 p.m. near Varkala Railway Station, (v) that blood stains of the blood group of the deceased were found in the material objects collected from the place of occurrence, (vi) that personal belongings of the deceased, including the torn off portion of the Crl.A.No.1217/09 7 shirt of the deceased were recovered from the scene of occurrence. (vii) that the blood stains contained in the cloth recovered from accused No.1, on the basis of Ext.P16(a) disclosure statement, were found to be of the blood group of the deceased and (viii) that accused No.1 did not offer any explanation for the recovery of the body of the deceased and his personal belongings from his residential premises. According to the Public Prosecutor, in view of the provision contained in Section 106 of the Evidence Act, the absence of any explanation from accused No.1 as to how the occurrence took place, enables the court to draw an inference that he caused the death of the deceased. The basis of this argument is that when a fact is especially within the knowledge of a person, the burden of proving that fact is upon him. To buttress this argument, he has relied on the judgments of the Apex Court in Prithipal Singh and others v. State of Punjab and another [(2012) 1 SCC 10] and Thulshiram Sahadu Suryawanshi and another v. State of Maharashtra [(2012) 10 SCC 373]. The learned Public Prosecutor has pointed out that Ext.P23 which certifies the presence of A+ve blood in Mos 2, 4, 6, 7, 9, 11, 17, 19 and 21, recovered from the scene and in MO10 cloth recovered from Crl.A.No.1217/09 8 accused No.1, is a very vital piece of evidence pointing towards the guilt of the accused and the same has been ignored by the Sessions Court. According to him, the same alone is sufficient for interference with the order acquittal. He has also relied on the decision of the Apex Court in Ghurey Lal v. State of U.P. [(2008) 10 SCC 450], dealing with the circumstances warranting interference by the High Court in an order of acquittal.
11. Per contra, the learned counsel for the accused submitted that in so far as the trial court acquitted the accused, the presumption of innocence in favour of the accused got reinforced and therefore, unless this court finds that non- interference with the decision of the trial court would result in miscarriage of justice, the acquittal shall not be interfered with. According to them, mere non-consideration of a material piece of evidence shall not automatically result in the reversal of an order of acquittal. On the merits, they pointed out that this is a case of no evidence and therefore, the trial court has rightly acquitted the accused.
12. It is beyond dispute that there was no direct evidence to establish the occurrence, and the prosecution was relying on circumstances to establish its case. It is settled law Crl.A.No.1217/09 9 that in a case based on circumstantial evidence, the circumstances from which the guilt is to be drawn should be fully established, the circumstances so established should be consistent only with the hypothesis of the guilt of the accused, the circumstances must be of a conclusive nature, which excludes every possible hypothesis except one to be proved, there must be a chain of circumstances so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and the circumstances must show that in human probability, the act must have been done by the accused. After referring to various earlier decisions, the Apex Court has reiterated the said principles in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] and the same are followed consistently in all the later decisions. The circumstances relied on by the learned Public Prosecutor to establish the guilt of the accused have to be considered, in the light of the said principles.
13. At this point, it is apposite to refer to a few facts concerning the complicity of accused Nos 2 to 4 in the crime. The main evidence relied on by the prosecution to connect the alleged occurrence with accused No.2, is the evidence of PW3, Crl.A.No.1217/09 10 who has deposed that he has seen accused Nos. 1 and 2 going to the residence of accused No.1 at about 6.30 p.m. and coming back at about 8.30 p.m., on the relevant day. The prosecution has also relied on the evidence of PW11 and PW13 to establish the complicity of accused No.2 with the crime. As far as accused No.3 is concerned, the only evidence relied on by the prosecution to connect him with the alleged occurrence is the evidence of PW.9, the auto rickshaw driver, who has deposed that he has seen accused Nos. 2 and 3 together at about 8 p.m. on the date of occurrence. The learned Public Prosecutor fairly conceded that there is nothing on record to connect accused No.4 with the occurrence. As far as the evidence of PW3 is concerned, the learned Sessions Judge who had the opportunity to observe the demeanour of the said witness found, for reasons stated in the judgment, that it is not safe to rely on the solitary statement made by PW3 that he has seen accused No.1 and 2, moving to the house of accused No.1 at about 6.30 p.m., to connect the accused with the crime. PW11 is a contractor who has engaged accused No.1 and 2, who are masons by profession, for a work and he only deposed the said fact in court. PW13 has only deposed that he had worked along with accused Nos.1 and 2. Crl.A.No.1217/09 11 The evidence of PW11 and PW13 would only show that the accused Nos. 1 and 2 knew each other. We have meticulously examined the version given by PW.9, the auto rickshaw driver. His version was only that on the date of occurrence, he has seen accused Nos.1 and 3 together in his auto rickshaw at about 8.00 p.m. The evidence tendered by PW9 is not consistent with the evidence tendered by PW3. What PW3 said was that he saw accused Nos.1 and 2 going to the house of PW2 at about 6.30 p.m. and coming back at about 8.30 p.m. The evidence of PW9 is that he saw accused Nos. 1 and 3 at about 8 p.m., near Varkala Railway Station. Further, PW9 has admitted that he had no prior acquaintance with accused Nos.1 and 2. He is only an auto rickshaw driver. In the common course of human conduct, there is no chance at all for PW9, an auto rickshaw driver, to identify all the passengers in his auto rickshaw. As far as accused No.3 is concerned, this is the sole evidence to connect him with the occurrence. We do not think that the evidence of PW9 is sufficient to connect accused No.3 with the occurrence. It is thus clear that as far as accused Nos.2 to 4 are concerned, there is no credible evidence to connect them with the occurrence.
14. Coming to the complicity of accused No.1, as Crl.A.No.1217/09 12 stated above, the circumstances relied on by the prosecution are that he is ordinarily residing in the house of PW2, the dead body of the deceased was found in the well within the said house, the blood stains contained in the material objects recovered from the premises of the house of PW2 matched with the blood group of the deceased, blood stains contained in the cloth recovered from accused No.1 matched with the blood of the deceased and that no explanation whatsoever was offered by accused No.1 for the recovery of the dead body, personal belongings of the deceased and other material objects containing blood stains from from his house. The place of occurrence is the open veranda of the house of PW2. There is nothing on record to indicate that nobody could enter the premises of the house of PW2, without the permission of the inmates. There is nothing on record to indicate that the inmates in the house of PW2 were there in the house on the relevant day between 6.30 p.m. and 10 p.m. As rightly observed by the learned Sessions Judge, the possibility of somebody else assaulting the deceased and causing his death at the place of occurrence or somewhere near the place of occurrence, cannot be ruled out. It is all the more so, as all the material objects were recovered from the veranda of the house and not from inside the Crl.A.No.1217/09 13 house. Further, all the material objects containing blood stains were available as it is, till the police came to the scene. There is no reason why the material objects containing the blood stains, the torn off shirt of the deceased, the cloth worn by accused No.1 containing the blood stains etc. are not removed from the scene by the accused, if accused No 1 is involved in the crime. All these circumstances create a reasonable doubt as to the complicity of accused No.1 in the crime. Coming to the recovery of the clothes pursuant to Ext.P16(a) disclosure statement, the incriminating part is about the blood stains contained in MO.10 cloth. As observed by the learned Sessions Judge, there is nothing on record to indicate as to the blood groups of the inmates of the house. In the absence of any material as to the blood groups of the inmates in the house, the guilt of accused No.1 cannot be found solely on the basis of recovery made as per Ext.P16. In these fact situation, the circumstances relied on are not consistent only with the hypothesis of the guilt of the accused. On the other hand, the circumstances relied on are explainable on other hypothesis as well.
15. It is true that the learned Sessions Judge has not specifically dealt with Ext.P23 report of the Forensic Science Crl.A.No.1217/09 14 Laboratory. However, the discussion of the evidence by the learned Judge indicates that contents of the same have been dealt with by the learned Judge. There is specific reference to MO.10 cloth which is item No.28 in Ext.P23 report, in the impugned judgment. The learned Judge, did not give much emphasis to the said piece of evidence as the same would not point towards the guilt of accused No.1, so that an inference against the guilt of accused No.1 can be drawn based on the said document.
16. Now, we shall deal with the submissions made by the learned Public Prosecutor on the basis of Section 106 of the Evidence Act. Presumption of fact is a rule of evidence, which enables the court to presume a doubtful fact from the proved facts. While making an inference of a fact from the proved facts, the court exercises a process of reasoning, having due regard to the common course of natural events, human conduct etc. Section 106 of the Evidence Act deals with one of the circumstances, from which the court can presume a fact. It enables the court to presume the existence of a fact, if it is proved that the said fact is especially within the knowledge of a person, when he fails to offer any explanation. It does not relieve Crl.A.No.1217/09 15 the prosecution of its burden to prove every element of the offences charged, from first to last, beyond reasonable doubt. The Madras High Court had occasion to consider the scope of the provisions contained in sections 106 and 114 of the Evidence Act, in, E.D.Smith v. Emperor (Indian Cases Vol.XLIII 1918 page No.605). It was held in the said case that accused is entitled to hold his tongue; but where the only alternative theory to his guilt is a remote possibility, which, if correct, he is in a position to explain, the absence of any explanation must be considered in determining whether the possibility should be disregarded or taken into account. Section 106 of the Evidence Act would apply only to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult for the prosecution to establish the facts which are "especially" within the knowledge of the accused. This is apparent from the illustration (a) to section 106 of the Evidence Act, which provides that when a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. Section 106 of the Evidence Act, therefore, applies only to cases where the prosecution has succeeded in proving the facts, from which a Crl.A.No.1217/09 16 reasonable inference can be drawn as to the existence of certain other facts, unless the accused on account of his special knowledge as to such facts, failed to offer any explanation, which might drive the court to draw a different inference. Any other interpretation would lead to a very startling conclusion that in a murder case, the burden would lie in the accused to prove that he did not commit the murder.
17. In Thulshiram Sahadu Suryawanshi and another v. State of Maharashtra (supra), the wife of accused No.3, who was residing with him and accused Nos.1 and 2, who are his parents, was found dead in the house where, the accused and the deceased were the only occupants. It was in that factual background, the court found that the lack of explanation by the accused, enables the court to draw an adverse inference. In Prathipal Singh's case(supra), the courts have found that the accused had abducted one Jaswant Singh Khalra and therefore, only they could explain as to what happened to him, and if he had died, in what manner and under what circumstances he died and why his corpus delicti could not be recovered. The fact as to what had happened to the victim after his abduction by the accused persons, being a fact which is within the special Crl.A.No.1217/09 17 knowledge of the accused persons, it was found in that case that the absence of any explanation from the accused, would enable the court to draw an adverse inference against the accused. Both the said cases, in the circumstances, are distinguishable on the facts.
18. Coming to the facts of the present case, the case of the prosecution is that the occurrence took place in the open veranda of the house of accused No.1, and not within a room under the lock and key of any of the inmates of the house. As stated above, there is nothing on record to indicate that anybody else could enter the premises of the house of PW2, without the permission of the inmates. There is also nothing on record to indicate that the inmates in the house of PW2 were there in the house on the relevant day between 6.30 p.m. and 10 p.m. Section 106 of the Evidence Act, in the circumstances, does not have any application at all to the facts of the present case.
19. In Ghurey Lal v. State of U.P. [(2008) 10 SCC 450] relied on by the Public Prosecutor, the Apex Court has clarified that interference with an order of acquittal is permissible only when the trial court's conclusion with regard to the facts is palpably wrong or when the decision is manifestly unjust and Crl.A.No.1217/09 18 unreasonable. The facts disclosed in this case do not show that the conclusion of the trial court is palpably wrong or manifestly unjust and unreasonable.
In these circumstances, there is no merit in the appeal and the same is accordingly, dismissed.
Sd/-
THOTTATHIL B.RADHAKRISHNAN, JUDGE.
Sd/-
P.B.SURESH KUMAR, JUDGE.
tgs/smv (true copy)