Kerala High Court
Nirmala vs State Of Kerala on 13 January, 2006
Equivalent citations: 2006(1)KLT761
Author: V. Ramkumar
Bench: J.B. Koshy, V. Ramkumar
JUDGMENT V. Ramkumar, J.
1. The appellants in these appeals are accused Nos. 2 and 1 respectively in S.C. No. 217/1998 on the file of the Sessions Court, Manjeri. Nirmala (A1), a woman then aged 44 years and her husband's assistant Manoj Kumar (A2), then aged 30 years were charge-sheeted by the Circle Inspector of Police, Malappuram for offences punishable under Sections 302 and 201 read with Section 34 I.P.C.
The case of the Police
2. The case of the prosecution as narrated in the police report (charge-sheet) can be summarised as follows:--
On 10-12-1995 at or about 2 p.m. inside the 2nd room from the north (bearing Room No.IX/199 of Vengara Panchayath) of the line building used as residential quarters and standing in the ownership of Nallattuthodika Moideen Haji @ Poochi Haji and situated on the north of the Malappuram-Kooriyad public road passing through the Vengara bazaar and situated on the west of the Vengara Post Office, the two accused persons out of their enmity towards Abdul Latheef who persistently insisted on return of the money which the accused owed towards him and in furtherance of their common intention to assassinate 23 year old Latheef, intentionally and knowingly caused his death by strangulating his neck using M.O.6 plastic rope while Latheef was sitting on a chair. Thereafter the accused with the intention of making it appear that Latheef had committed suicide, tied the plastic rope on the hook on the ceiling and then left the place after locking the room. The accused have thereby committed offences punishable under Sections 302 and 201 read with Section 34 I.P.C.
The Trial
3. On the accused pleading not guilty to the charge framed against them by the Sessions Court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 18 witnesses as PWs 1 to 18 and got marked 14 documents as Exts. P1 to P14 and 17 material objects as MOs 1 to 17.
4. After the close of the prosecution evidence the accused were questioned under Section 3l3(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. In the separate written statement filed by the first accused she inter-alia stated as follows:--
This accused, her husband and two children are residing in the northern most room of the line building at Vengara and belonging to one Poochi Haji. Even though the room immediately to the south of the above quarters is also in the possession of her husband that room was not used by them except for the purpose of storing old books of the children and old clothes. As a friend of the husband of this accused, Latheef was frequently coming to their quarters. Very often he used to take rest in the southern room. Since no valuables were kept in that room, Latheef used to keep the key near the grill of the window while going out after locking the room. He used to enter that room using the key and take rest in that room even on occasions when this accused and her family members were not there. 15-12-1994 was a Sunday and she had gone to Saint Vincent Convent Hostel at Kozhikode along with the children to visit two of her other children who were inmates in the hostel. Thereafter she dropped in at her house at Kozhikode and returned during the night. At about 8 p.m. when they alighted the bus at Kooriyad junction near Vengara, the local people told them that Abdul Latheef had committed suicide inside the quarters belonging to Poochi Haji and it was not safe to go there. Accordingly, they did not go there. Several people had enmity towards her husband Dharmadas. Latheef had committed suicide. He had been undergoing treatment for mental illness. She was falsely implicated in the case on account of the suspicion as well as hostility nurtured by P.W. 1. There had been communal intervention and influence also. This case has been falsely foisted against this accused who is innocent.
5. The 2nd accused stated that he was falsely implicated in the case on account of the enmity towards Dharmadas and that Latheef had committed suicide and that he is innocent.
Trial Court's Conviction and Sentence
6. The learned Sessions Judge after trial, as per judgment dated 15-1-2004 found both the appellants not guilty of the offence punishable under Section 201 I.P.C. but convicted them for the offence of murder punishable under Section 302 read with Section 34 I.P.C. For the conviction under Section 302 I.P.C. they were both sentenced to imprisonment for life and to pay a sum of Rs.25,000/- each by way of compensation under Section 357 (3) Cr.P.C. and on default to pay the compensation they were both directed to undergo rigorous imprisonment for three years each. Set off under Section 428 Cr.P.C. was allowed on the appropriate authority passing orders under Section 433 Cr.P.C. It is the said judgment which is assailed in these appeals.
This Appeal
7. We heard Advocate Sri. P. Vijayabhanu the learned Counsel for the appellant (A1) in Crl.A.567/04 and Adv. Sri. K.B. Sajeesh on behalf of Adv. Sri.P.S0. Sreedharan Pillai, the learned Counsel appearing for the appellant (A2) in Crl.A. 507/04 and Adv. Sri. Sujith Mathew Jose, the learned Public Prosecutor who defended the State.
The Points for Resolution
8. The following points arise for determination in these appeals:--
i) as the prosecution conclusively proved that Latheef died as a result of homicidal strangulation some time after 11.45 a,m. on 10-12-1995?
ii) Has the prosecution established beyond doubt that the appellants caused the death of Latheef by means of ligature strangulation using M.0.6 plastic rope?
iii) In the event of the conviction of the appellants being confirmed what is the proper sentence to be imposed on them?Point Nos. 1 to 3
9. For the sake of convenience these points can be considered together. What the Prosecution has Proved:
10. What is unfolded by the prosecution evidence is the following:--
P.W.1 (Alavikutty) who was aged only 48 years at the time of occurrence is the father of deceased Latheef who was aged only 23 years when he met with his death. P.W.1 is a resident of Irikkulangara in Parappur amsom of Tirur Angadi Taluk of Malappuram District. He has five children and Latheef was his second son. P.W.1 was at the relevant time employed in the Persian Gulf and had come down to native place, presumably, in connection with the marriage of his daughter which was scheduled to be held on 11 -12-1995. The occurrence took place on 10-12-1995 inside Room No. IX/199 at Vengara which is the second room from the north in a line building. There were altogether 10 families residing in adjacent quarters in that line building which lies north-south with the Malappuram-Kooriyad public road on the south of the line building. The said line building belongs to one Moosa Haji & Poochi Haji, the husband of the niece of P.W. 4 (Moideenkutty Haji). Since the owner of the line building was in the Gulf at the relevant time, P.W.4 was in-charge of the building. The northern most two rooms in that line building bearing Nos. IX/199 and IX/200 were taken on rent by Dharmadas, the husband of Al. The said Dharmadas along with A1 and A2 and the two younger children of Dharmadas were residing in the said rooms. The two elder children of Al and Dharmadas are boarders in a convent hostel at Kozhikode. Dharmadas is a tax consultant and A2 was assisting him in his employment. P.W.3 (Nafeesa) was the occupant of the 4th room from the north in the said line building. P.W.7 (Wilson) was the occupant of the 3rd room from the north. P.W.1, the father of the deceased and the deceased were owning a Jeep bearing Regn. No. KL-10-A/6757 and the deceased was driving the said Jeep which used to be parked at Vengara town. The accused and the husband of A1 used to hire the said Jeep for their personal requirements. They owed money to the deceased by way of hire charges and also towards a loan. A1 and her husband had availed a loan from M/s. Sisco Kuries and Loans Pvt. Ltd., Kunnamkulam of which P.W.17 is the Managing Director by offering the Jeep of the deceased as the security. The net amount which the 1st accused and her husband owed the deceased was about Rs. 25.000/-. Although they had promised the deceased to clear the dues on several occasions, they had not kept their word. The deceased was, however, a frequent visitor in the quarters of the accused. P.W.9, (Dasan) runs an automobile workshop at Vengara. The deceased used to entrust his Jeep for repairs in this workshop. 10-12-1995 was a Sunday. On that day at about 10 a.m. the deceased had gone to the workshop of P.W.9 to find out whether his Jeep which had been entrusted for repairs with P.W.9 was ready. At about 11 a.m. on that day accused Nos. 1 and 2 went to the of P.W.I enquiring about the deceased. When P.W. 1 asked them the reason they told him that they had come to request for one week's time to repay the money due to Latheef. P.W.1 told them that Latheef had gone to the workshop of P.W.9. At about 11.15 a.m. both the accused came to the workshop of P.W.9. P.W.9 had seen the accused taking the deceased with them. P.W.7 (Wilson) who is the resident of the 3rd room from the north in the aforesaid line building was doing business at Vengara bazaar at the relevant time. On 10-12-1995 at about 11.30 a.m. while returning to his work place after having breakfast from his quarters, P.W.7 saw accused Nos. 1 and 2 in the company of the deceased entering the adjacent quarters of A1. P.W.3 (Nafeesa) and her family are residing in the 4th room from the north of the said line building. She had seen Latheef going to the quarters of Al very often. P.W.2 (Aysha) resides to the north of the line building. Al had taken her ornaments worth Rs. 8,000/- from her and was evading payment for the same. On 10-12-1995 at about 12.30 p.m. she had been to the quarters of Al to claim the money due to her. When she reached the courtyard in front of the quarters of A1, she saw the deceased sitting on a chair and insisting that he should get his money on that day itself and A1 retorting with a serious face that she had already told him that there was no money available. Seeing P.W.2, A1 asked her to come at 5 p.m. that day and accordingly P.W.2 returned. This Witness is claimed to be the person who allegedly had last seen the deceased alive in the quarters of Al and A2 and quarrelling for the money which the accused owed him. At about 2,30 p.m. on 10-12-1995, when P.W.7 (Wilson) was in his quarters for taking lunch, he, had seen A1 and A2 and the two children of A1 going out of the adjacent quarters in a haste. P.W.6 (Saidalavi) is an autorickshaw driver at Vengara town. He knows both A1 and A2. On 10-12-1995 at about 2.30 p.m. A1 and A2 along with two kids had hired his autorickshaw from the vicinity of a nursing home near the line building. They had got down at Mambaram Mosque. While in the autorickshaw, P.W.6 had heard A1 and A2 talking in a muffled voice. Since the deceased who had gone out of his house at 10 a.m. to the workshop of P.W.9 did not reach home even after 8 p.m. on 10-12-1995, P.W.I went in search of him first in the workshop. From the workshop he learnt that the accused had taken the deceased with them at about 11.30 a.m. P.W.1 thereupon went to the quarters of A1. Seeing that there was no light, he went to the nearby Jeep stand and took with him two or three friends of the deceased including P.W.8 (who is another Jeep driver at Vengara town). They found one room locked and the adjacent room (No. 1/199) not locked. They opened the door of the adjacent room. It was then 8.45 p.m.. There was no light inside. When they lighted a match-stick they found Latheef lying motionless on a cot inside the room. Suspecting that he was dead they brought P.W.5 (Dr. Mohan Mammunni), the Assistant Surgeon at the Community Health Centre, Vengara. P.W.5 examined the deceased some time prior to 10 p.m. and confirmed his death. He found a ligature mark on the neck of the deceased.
Arguments of the Prosecutor
11. Advocate Sri. Sujith Mathew Jose, the learned Public Prosecutor made the following submissions before us in support of the impugned judgment:--
This is a case in which in preference to the testimony of D.W.2 (Dr. Sherly Vasu) who is Professor of Forensic Medicine Medical College, Kozhikode, the trial Judge has chosen to accept the testimony of P.W. 13 (Dr. Ramankutty) who conducted the autopsy of the deadbody of Latheef, to hold that the death of Latheef was by way of homicidal strangulation. In a case where the opinion of Medical witness is contradicted by another medical witness both of whom are equally competent to form an opinion, the opinion of that expert should be accepted which supports the direct evidence in the case. P.W.13 had the advantage of examining the deadbody of the deceased and conducting autopsy over the same. P.W.13 had also observed the nature of injuries on the body of the deceased. The opinion of P.W.13 is therefore, based on first hand knowledge and would be preferable to that of D.W.2 who did not have the advantage of seeing the deadbody or the injuries on the same but was giving evidence purely on the basis of the description of the injuries given by P.W.13 in Ext.P6 postmortem certificate. (Vide Piara Singh v. State of Punjab ). Once it is accepted that the death of Latheef was by homicidal strangulation, then the fact that he was last seen alive in the company of the accused, coupled with the absence of any explanation by the accused as to the whereabouts of the deceased and the other circumstances relied on by the trial court including the putting forward of an alibi by Al of having gone to St. Vincent Convent Hostel, Kozhikode, which is a false plea constituting an additional link in the chain of circumstantial evidence, unerringly prove that it was the accused and none else who had strangulated the deceased to death. No interference is, therefore, warranted with regard to the conviction and the sentence.
Judicial Resolution
12. We are afraid that we find ourselves unable to agree with the above submissions. The first aspect to be considered is as to whether the prosecution has conclusively established that the death of Abdul Latheef was by homicidal strangulation. This is a case in which there is no direct evidence regarding the occurrence. The prosecution is relying on circumstantial evidence to secure an inference of guilt against the accused. Ext.P6 is the post mortem certificate prepared by P.W.13 who conducted autopsy over the deadbody of deceased Abdul Latheef on 11-12-1995 between 3.20 and 5 p.m. The following are the external appearance and ante-mortem injuries and other findings recorded by P.W. 13 in Ext.P6:--
External Appearance:-- Body was that of a moderately nourished male of height 167 cm and weight 58 kg. Conjunctivae red; no evidence of sub-conjunctival hemorrhage; nails blue; cornea hazy. Blood stained mucinous discharge from mouth and nose. Dried blood stained streaks extending from left collar bone to a point 3 cm below left nipple (oblique - 3 numbers); salivary stain mixed with blood. Other natural orifices were normal. Penis cirumcised. Testes normal. Scrotum normal. Violet dark ink staining the finger bulbs.Nails grown beyond fingertips; (collected and handed over to the police).
Rigor mortis absent. Postmortem staining at back, fixed. No sign of decomposition except gas collection in body cavities. (Body was not refrigerated).
A nylon rope (yellow), 3 strands, 3 cm in circumference. 110 cm long was brought separately, stated to have been found tied on a hook allegedly over the cot where the body was found.
A pressure abrasion, depressed (2-3 mm depth) obliquely placed almost horizontal on the front and sides of neck situated 6.7 cm below left ear (0.9cm broad) 4cm below left angle of jaw (0,9cm broad) 6cm below chin (0.8 cm broad) and 0.6cm below thyroid prominence) - 3cm below right angle of jaw (1 cm broad), 6 cm below right ear (0,9 cm broad), terminating at a level 4.9cm behind adjust below the level of ear attachment with a discontinuity of 14 cm at the back, hairy portion. The left side showed pattern of rope. Maximum pressure effect on the left side.
On bloodless field flap dissection, the neck structures were found to show venous congestion; the subcutaneous tissues beneath the mark was dry and pale. The thyroid cartilage, cricoid cartilage, tracheal rings and hyoid bone were intact and normal. The subcutaneous tissues beneath the mark was found dry and pale.
2. Abrasion 1.3 x 1cm on the inner aspect of left elbow (fresh).
There was no other injury on the body.
Brain was softened and congested. Air passages congested and contained blood stained secretions. Lungs were massive cogested and edematous. Heart walls, valves and chambers appeared normal, Coronaries patent. Stomach contained few pieces of crushed banana particles without any characteristic smell. Mucosa decomposed. Urinary bladder was empty. Testes were free of injuries. All other organs were found to be in a state of early decomposition otherwise normal.
13. In Ext.P6 postmortem certificate the opinion given by P.W. 13 regarding cause of death is as follows:
Postmortem findings are consistent with death from constriction force around the neck.
P. W. 13 has not given any indication in Ext.P6 postmortem certificate that the death of Abdul Latheef was as a result of homicidal strangulation. The cause of the constriction force around the neck is not even remotely suggested in Ext.P6 certificate. Constriction over the neck leading to asphyxia can be due to various reasons. It can be by manual strangulation or throttling or ligature strangulation or by hanging which also results in compression of the neck. Asphyxia is a very broad term that encompasses a large number of conditions that result in interference with the uptake of oxygen together with a failure to eliminate Carbondioxide. Hanging, strangulation (ligature and manual), suffocation, (smothering, aspiration) drowning and traumatic asphyxia are the common cause of asphyxial death. Hanging is that form of asphyxia which is caused by the suspension of the body by a ligature which encircles the neck and the constricting force is the weight of the body of the victim himself. Hanging can be suicidal hanging, homicidal hanging and hanging as part of judicial execution. Hanging can be total or partial depending on the constricting force provided by the complete or partial weight of the body. The location and direction of the ligature mark which is apressure abrasion depends on the manner of ligature application to the neck. If a loose loop with a fixed non-slipping knot is used, the mark might be an oblique non-continuous furrow. If a noose is employed and if it is drawn taut before suspension, it will not slip upwards, but will grip tightly at the level of application. In strangulation deaths, constriction of the throat is produced by means other than the weight of the body. The means used may be a ligature, the hand as in the case of throttling or some hard object like a billet of wood etc. The modes of death in strangulation are the same as in hanging but without a drop. Hence, the postmortem appearances also will be similar. In Modi's Medical Jurisprudence and Toxicology (22nd Edition) the difference between hanging and strangulation are given in a tabulated form at page 270.
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Hanging Srangulation
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1. Mostly suicidal 1. Mostly homicidal
2. Face-Usually pale and petechiae rare 2. Face-Congested, livid and marked
3. Saliva - Dribbling out of the mouth down with petechiae on the chin and chest 3. Saliva-No such dribbling
4. Neck - Stretched and elongated in fresh 4. Neck - Not so bodies
5. External signs of asphyxia, usually not 5. External signs of asphyxia, very well marked well marked (minimal if death due to vasovagal and caroti sinus effect)
6. Bleeding from the nose, mouth and ears 6. Bleeding from the nose, mouth very rare. and ears may be found.
7. Ligature mark-Oblique, non-continuous 7. Ligature mark-Horizontal or placed high up in the neck between the transverse continuous, round the chin and the larynx, the base of the neck, low down in the neck below groove or furrow being hard, yellow the thyroid, the base of the and parchment-like. groove or furrow being soft and reddish.
8. Abrasions and ecchymoses round about 8. Abrasions and ecchymoses round about the edges of the ligature mark, rare. the edges of the ligature mark, common.
9. Subcutaneous tissues under the 9. Subcutaneous tissues under the mark-White, hard and glistening. mark-Ecchymosed.
10.Injury to the muscles of the neck - 10. Injury to the muscles of the neck-
Rare. common. 11.Carotid arteries, internal coats 11. Carotid arteries, internal coat ruptured in violent cases of a long ordinarily ruptured. drop. 12.Fracture of the larynx and trachea- 12. Fracture of the larynx and Very rare and that too in judicial trachea-Often found also hyoid hanging bone.
13.Fracture-dislocation of the cervical 13. Fracture-dislocation of the vertebrae-Common injudicial hanging cervical vertebrae-Rare.
14.Scratches, abrasions and bruises on the 14. Scratches, abrasions fingernail marks face, neck and other parts of the body- and bruises on the face neck and Usually not present other parts of the body-Usually present.
15. No evidence of sexual assault. 15. Sometimes evidence of sexual assault.
16. Emphysematous bullae on the surface of the lungs - Not present. 16. Emphysematous bullae on the surface of the lungs - May be present.
At page 289 of the 22nd Edition (2003) of the Essentials of Forensic Medicine am Toxicology by Dr. K.S. Narayan Reddi a tabular form showing the difference between hanging and strangulation is given. It reads as under:
Trait Hanging Strangulation by ligature I. Ligature mark:
It is oblique, does not comple- tely encircle the neck; usually seen high up in the neck between the chin and larynx. The base is pale, hard and parchment-like.
It is transverse completely encircling the thyroid cartilage. The base is soft and reddish
2.
Abrasions & ecchymoses:
About the edges of ligature mark not common About the edges of the ligature mark are common
3. Bruising:
Of the neck muscles less common Of the neck muscles more common
4. Neck:
Stretched and elongated Not stretched or elongated
5.
Subcutaneous:
White, hard and glistening under the mark Ecchymosed under the mark
6. Hyoid bone:
Fracture may occur Fracture is uncommon
7.
Thyroid cartilage;
Fracture is less common Fracture is more common
8. Larynx and trachea:
Fracture rare Fracture may be found
9. Emphysematous bullae:
Not present on the surface of the lungs Very common on the surface of the lungs
10. Carotid arteries:
Damage may be seen Damage is rare
11. Face:
Usually pale and petechiae are not common Congested, livid and marked with petechiae 12, Signs of asphyxia:
External signs less marked External signs well marked
13.
Tongue:
Swelling and protrusion is less marked Swelling and protrusion is marked 14, Saliva:
Often runs out of the mouth Absent
15. Bleeding:
From the nose, mouth and ears not common From the nose, mouth and common
16. Involuntary discharge:
Of faeces and urine less common Of faeces and urine more common
17.
Seminal fluid.
At glans is more common At glans is less common Even though the ligature mark on the neck of the deceased described as pressure abrasion was stated to be obliquely placed, P.W.13 has also stated that it was almost horizontal on the front and size of the neck. But the measurements mentioned in Ext.P6 certificate will however indicate that the ligature mark could not have been horizontal. The following is the diagrammatic illustration showing the measurements noted by P.W.13 in Ext.P6.
14. We will presently examine the appearances on the body of the deceased Latheef to find out whether it predominantly presents the characteristic of suicidal hanging or homicidal strangulation. As mentioned earlier, P.W.13 has not given any indication in Ext.P6 postmortem certificate to conclude that the cause for the constriction force around the neck was either due to strangulation or hanging. The reasons which prompted P.W.13 to depose before Court that the probability was more in favour of strangulation are the following:
i) The ligature mark on the neck was almost horizontal but slightly oblique.
ii) In case of hanging, if the ligature mark is horizontal, then the mark will more or less encircle the entire neck. In this case there was discontinuity of the ligature mark for a length of 14 cms at the back. Therefore, producing such a mark by hanging using M.O.6 rope is highly remote.
iii) There was no impression of the mark of the knot such as we expect in a case of hanging.
iv) The presence of blood-stained streaks of mucinous discharge from the mouth and nose is more common in strangulation cases. Usually in hanging cases, we expect vertical streaks of salivary stains along the front of chest and it is not usually blood stained.
15. We are afraid that from the postmortem manifestations in this case, the above reasons stated by P.W. 13 cannot be conclusively accepted to hold that death of Abdul Latheef was due to homicidal strangulation. It has already been seen that going by the measurements given in Ext.P6 regarding the location of the ligature mark it cannot be said to be horizontal. Even P.W.13 admitted that in a case of hanging, depending on the tightness of the ligature used, the ligature mark could be horizontal also. The discontinuity in the ligature marks for a length of 14 cms. noted by P.W. 13 was at the back of the neck at the hairy portion. It may be the presence of hair at that site which might have interfered with the continuity of the ligature mark at that portion. The presence of three dried salivary stains mixed with blood extending from the left collar bone to a point 3 cms. below the left nipple noted in Ext.P6 postmortem certificate does not militate against the possibility that death of Abdul Latheef was of hanging. P.W.13 has also confessed that the possibility of blood stained streaks of salivary stains in hanging cases cannot be ruled out.
16. Another important aspect which needs particular reference in this case is the condition of the thyrohyoid complex in the neck of the deceased. A comparison of the tabular form extracted earlier will show that fracture of the thyroid cartilage, larynx, trachea etc. is more common in strangulation cases. The above structures are components of the thyrohyoid complex, a graphic illustration of which is as shown below:
Ext.P6 postmortem certificate and the evidence of P.W.13, (the autopsy surgeon) indicates that the thyroid cartilage, cricoid cartilage, tracheal rings and the hyoid bones were all found intact and normal without any injury or fracture on any of them. P.W.13 did not also notice any fracture on the larynx. These are important feature which go a long way to explode the prosecution theory of homicidal strangulation. Similarly, the subcutaneous tissues under the ligature mark were not found ecchymosed, but, instead, were seen pale which again is a characteristic of hanging. No abrasion was noted at the edges of the ligature mark. P.W. 13 did not notice any injury to the neck muscles. He also did not notice any petechial spots on the face. Failure to note any swelling or protrusion of the tongue is also suggestive of the death being one due to hanging. Ext.P8 inquest report does not show signs of any involuntary discharge of faeces or urine in the room where the deadbody was found. It is in the backdrop of these circumstances that the evidence of D.W.2 (Dr. Sherly Vasu), Professor and Head of Department of Forensic Medicine, Medical College, Kozhikode, assumes importance. D.W.2 has after meticulously studying Ext.P6 postmortem certificate deposed as follows:-
The pressure abrasion has been described in Ext.P6 in a very objective manner, but there is a subjective error. After mentioning the mark "as obliquely" he has gone on to state that the mark is "almost horizontal" but then objectively rules out the 2nd statement by precise measurements. The statement "almost horizontal" in Ext.P6 is only a subjective error. The description is of an oblique ligature mark. If the mark were horizontal from being 6 cms., below right ear, the mark would not disappear at the hairy portion as mentioned in Ext.P6 where it is definitely stated that the mark terminated at a level 4.9 cms behind and just below the level of ear attachment. In fact, if it were horizontal we would find the terminating point 6 cms. below the one which is noted in Ext.P6. So it was definitely oblique and not horizontal. In Ext,P6 it is mentioned that the left side showed pattern of rope and maximum pressure effect. That is consistent with the mark being oblique and placed higher-up on the right side with the head tilted to the left and saliva trickling down from the left corner of the mouth which is described in the external appearance portion in Ext.P6 and very much suggestive of hanging rather than ligature strangulation. In fact, multiple streaks of salivary trickling mark on the front chest wall, clothing or the floor beneath a suspended body is again a very common feature which is associated with hanging and not seen in ligature strangulation. In fact, the mechanism is, the suspension cause the laryngeal structures to move up and mechanical squeeze the sub-mandibular salivary glands to cause profuse salivary trickle down on the chest oil the side opposite to the knot. The mechanism of ligature strangulation is different. It nevercauses the laryngeal structures to move up and this phenomenon is never seen in ligature strangulation because the myelo-hyoid muscle is never squeezed in strangulation xxx xxx xxx Ext.P6 is of a typical case of hanging with the ligature material being cut and removed a quarter hour after hanging as evidence by the dryness and pallour of tissues underneath. No features suggestive of ligature strangulation is recorded in Ext.P6. The opinion has been given in Ext.P6 as constriction force around the neck as the cause of death in a broad unclassified manner but the objective way of reporting the finding very clearly helps to make this remark by me.
(Emphasis supplied)
17. A specific question put to PW. 13, the autopsy surgeon and his answers elicited are as follows:--
On both occasions (when he was questioned by the police) is it correct that you could not confirm whether it is a question of strangulation or hanging ? (Q.) Yes. I came to the opinion of death due to constriction force around the neck since a confirmative opinion as to whether it was a case of strangulation or hanging cannot be arrived at based on postmortem findings alone, but the probability was more in favour of strangulation. Further Investigation into the cause of death by the police was required.(A) If it was not possible to conclude either way from the postmortem findings alone without further investigation into the cause of death, then it is not known as to how P.W. 13 could, without any further material, depose in favour of strangulation.
18. It is true that where the opinion of a medical witness is contradicted by another medical witness both of whom are equally competent to form an opinion, court should generally accept the opinion of that expert which supports direct evidence in the case. But this is a case where there is no direct evidence regarding the occurrence. It is also true that as between medical experts, courts will ordinarily give more credence to the opinion of that expert who had the advantage of actually seeing the body and assessing the nature of injuries. Hence, sufficient weightage will ordinarily be given to the evidence of the doctor who conducted the postmortem examination. But that does not mean that each and every statement made by such a medical witness should be accepted as the last word especially when his testimony is self contradictory. (See Mohd. Zahib v. State of T.N. ). In the case on hand there is intrinsic material besides the testimony of D.W.2 to strengthen the conclusion that the cause of death of Abdul Latheef was hanging rather than homicidal strangulation. This conclusion is fortified by another important piece of evidence. At the time of holding inquest over the dead body of Abdul Latheef, the Investigating Officer had obtained M.O.14 prescription from the pocket of the pants worn by him. M.O.14 is issued in the letter-pad of one Dr. K.S. Mohan, M.B.B.B.S. D.P.M., (Nimhans), Consultant in Psychiatry, Calicut Medical College and Kuthiravattom Mental Hospital, Consultant in Psychiatry Institute of Mental Heath and Neuro Sciences. The said prescription has been issued to Abdul Latheef on 18-10-1995, that is, about 1 1/2 months prior to his death. The medicines prescribed are Flude can (Injection 1 ampule of 1 mg every two weeks), Espazine (5mg) to be consumed one in the morning, 1 in the afternoon and two at bed-time and two tables of Tranchler (200 mg) to be consumed at bed-time and two tablets of Pacitane to be consumed in the morning and afternoon each. Fludecan produces calmness and reduction of aggressive behaviour and is commonly prescribed for schizophrenic patients and patients having psychosis and mania. Espazine and Tranchler are also administered for the very same indications and Tranchler is usually prescribed for paranoid states. Pacitane is given to control the extra-pyramidal side effects of the above drugs. M.O.14 prescription is suggestive of the fact that Abdul Latheef was suffering from some sort of mental morbidity requiring strong dozes of the above drugs. During cross-examination P.W.13 was specifically asked as follows:--
Did you notice any drugging of the deceased ? (Q). I can say that only after perusal of the chemical examination report ? (A).
At the time of autopsy, P.W.13 had preserved the viscera, blood and nail clippings of the deceased for chemical examination as per the request of the investigating officer but for reasons best known to the prosecution no chemical examination report was produced before court. Eventhough P.W.1, the father of the deceased denied the suggestion put to him during cross-examination that Latheef was a mental patient, he had to confess that his son had been admitted in the mental hospital at Mattummal for four days in October 1995. He also admitted that one of his daughters by name Ramla had been treated for mental disease in Santhi Clinic at Kozhikode during 1993-94 period. The above evidence lends support to a reasonable suspicion that the inability expressed by the accused to return the money to the deceased who desperately wanted it for his sister's marriage on the next day, might have triggered off a stimulus in Abdul Latheef to put an end to his life. No one can predict the reactions of a schizophrenic in such a situation. It is significant to note that on the basis of Ext.Pl F.I. Statement of P.W.1 the case that was originally registered as per Ext.P7 F.I.R. was for "unnatural death".
19. The other links of circumstantial evidence, namely, the accused going to the house of P.W.1 in search of the deceased for asking time to repay the amount which they owed towards the deceased or the accused taking the deceased to their quarters or the talk or even quarrel between the accused and the deceased over the money which the accused owed to the deceased or the accused leaving the place at about 2.30 p.m. on 10-12-1995 in an autorikshaw or even the first accused putting forward a plea of alibi etc. may pale into insignificance if the cause of death of Latheef was not homicidal but suicidal. There might have been a fervent request by the deceased to the accused for return of his money and a refusal by the accused stating that there was no money available with them as spoken to by the prosecution witnesses. A person afflicted with such a mental condition as could be gathered from M.O.14 medical prescription, might very well have become despondent when he realised that he would not be getting the money from the accused for his sister's marriage which was to take place on the next day morning. In such a desperate moment it is quite possible that the deceased would have got into the adjacent room where he had the freedom and access to do so and would have in a weak moment decided to end his life. On a straight question put to P.W.13 as to whether one could hang with M.O.6 nylon rope, P.W. 13 had to confess in the affirmative.
20. Even if the evidence of P.W.2 could be pressed into service to contend that the deceased was last seen alive in the company of the accused, that was admittedly in Room No.IX/200 which was used as the residential quarters. This was around 12.30 p.m. on 10-12-1995. But the deadbody of Latheef was not found in Room No.IX/200 but in the adjacent room i.e. Room No.IX/199 and that too at about 8.45 p.m. on that day. Although the two rooms are adjacent rooms, it is in evidence that both rooms have separate access from the front verandah by means of independent doors and there is no inter-communicating door in between. Apart from the difference in the venue of the last meeting of the accused and the deceased and the place where the deadbody of the deceased was found, there is also the time-gap of about 8 hours between the two events. Nobody has seen the accused and the deceased together inside Room No. IX/199 where the dead body was found. There is also no medical evidence indicating the precise time of death. Under these circumstances, it may not be fair to assume that even after the accused and the deceased were found engaged in a conversation in room No. IX/200 at 12,30 p.m., the accused continued to be in the company of the deceased until his death which took place in room No. IX/199. Hence the "last seen together" theory cannot be profitably invoked by the prosecution to canvass for the position that the above circumstance unerringly points an accusing finger at A1 and A2 thereby casting an obligation on them to offer an explanation as to what happened to the deceased thereafter. The question as to whether the alibi put forward by Al of having gone to St. Vincent Convent Hostel at Kozhikode was a false plea constituting an additional link in the chain of circumstantial evidence, will become relevant only if the initial burden which lies on the prosecution has been discharged satisfactorily. The following observations of the apex court in Jayantibhai Bhenkarbhai v. State of Gujrat , is most apposite:--
The burden of proving commission of offence by the accused so as to fasten the liability of guilt on him remains on the prosecution and would not be lessened by the mere fact that the accused had adopted the defence of alibi. The plea of alibi taken by the accused needs to be considered only when the burden which lies on the prosecution has been discharged satisfactorily.
21. In the face of the above exculpatory circumstances, the prosecution wants the Court to hold that the accused chose broad daylight and selected their own residential quarters in a line building where ten families are residing and situated in the heart of Vengara town and that too on a Sunday afternoon to lure the deceased from an automobile workshop to their quarters without any attempt to conceal the same and executed their plan to murder him without rousing the attention of the inmates of the neighbouring quarters and then slipped out of that locality leaving no trace of suspicion or incriminating material like blood stained clothes etc. It must be remembered that two of the younger children of Al were also in the very same residential quarters, and, going by the testimony of P.W.3 those children were then aged 8 and 7 years respectively. The prosecution also wants the Court to believe that the 'operation ligature strangulation' was executed without any violence leaving no marks of struggle on the body of the deceased. According to us, the chances of a woman and a youth daring to commit such an act at such an hour in such a venue, are very remote. On the contrary, the circumstances adverted to above coupled with the paranoid symptoms of the deceased and the positive indications suggestive of death by suicidal hanging only weaken the prosecution version.
22. It is well settled that where an inference of guilt of an accused person is to be drawn only from circumstantial evidence, such evidence must be complete and incapable of any hypothesis other than the guilt of the accused. Such evidence should not only be consistent with the guilt of the accused but should also be incompatible with his innocence. On the evidence in this case, we are unable to hold that the prosecution has succeeded in proving the guilt of the accused beyond reasonable doubt. The accused are certainly entitled to the benefit of reasonable doubt arising from the evidence on record in this case.
The Final Conclusion We, therefore, hold that the conviction entered and the sentence passed against the appellants cannot be sustained. The appellants are, accordingly, found not guilty of the offence of murder punishable under Section 302 I.P.C. read with Section 34 I.P.C. and are acquitted of the same. They shall be set at liberty and released from the prison forthwith unless their continued detention is necessary in connection with any other case.
These appeals are accordingly allowed as above.