Santhosh, S/O. Shanmughan Achari, C. ... vs State Of Kerala on 16 January, 2025

[Cites 9, Cited by 0]

Kerala High Court

Santhosh, S/O. Shanmughan Achari, C. ... vs State Of Kerala on 16 January, 2025

The sole accused in S.C.No.769 of 2013 on the files of the Court of the Additional Sessions Judge - I, Kollam is the appellant in the appeal. He stands convicted and sentenced for the offences punishable under Sections 449, 302 and 201 of the Indian Penal Code (IPC).

2. The victim was a boy aged 9 years. He was the maternal nephew of the appellant. At the time of occurrence, the victim, his parents and his younger sibling were residing in a building adjacent to the family house of the appellant where the appellant was residing with his parents, namely the maternal grandparents of the victim. The mother of the victim Crl.A. No.979 of 2018 2025:KER:2870 -: 3 :- used to work under the Rural Employment Guarantee Scheme of the Government. On 23.06.2012, when the mother of the victim left for work, the victim was playing with the appellant in the courtyard of the house of the latter. At about noon on that day, the grandfather of the victim went to a nearby shop and when he returned after about 1½ hours, it was noticed that the victim who was playing with the appellant in their house, was not seen. The grandfather then informed the matter to the neighbours and one among them who started searching for the victim found the victim in his own house standing still on a cot with his neck tied to a shawl when she peered through the window of the said house. Having seen the victim in that position, the said person screamed and on hearing the scream, people in the neighbourhood gathered there. When one among them entered the house of the victim after breaking open the door, it was noticed that the other end of the shawl tied on the neck of the victim was tied to a metal pipe affixed to the roof of the building and that the victim had passed away.

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3. On coming to know of the occurrence, a case was registered by Kottarakkara Police under Section 174 of the Code of Criminal Procedure (the Code) on the basis of the information furnished by the grandfather of the victim. Later, when it was revealed that the death is a homicide, the provision under which the case was registered was altered to Sections 377 and 302 IPC. In the investigation conducted in the case thereupon, it was revealed that it was the appellant who caused the death of the victim. A final report was accordingly filed in the case. The allegation against the accused in the final report is that when the victim resisted the attempt made by the appellant to indulge in carnal intercourse against the order of the nature with him, the appellant strangulated him to death, indulged in sexual intercourse with him and thereupon tied his body with a shawl to the metal pipe, in order to cause disappearance of the evidence of the crime.

4. On the appellant being committed to trial, the Court of Session framed charges against him under Sections 449, 302, 377 and 201 IPC to which he pleaded not guilty. The Crl.A. No.979 of 2018 2025:KER:2870 -: 5 :- evidence let in by the prosecution thereupon consists of the oral evidence of 14 witnesses examined as PWs 1 to 14 and 19 documents proved through the witnesses namely, Exts.P1 to P19. Exts.D1 to D5 are the case diary statements of the witnesses examined as PWs 1 and 2. MO1 series are the material objects identified by the witnesses in the case. Inasmuch as the Court of Session did not find the case to be one fit for acquittal under Section 232 of the Code, the appellant was called upon to enter on his defence. The appellant himself gave evidence at that stage as DW1 and examined another person on his side as DW2. Thereupon, on an appreciation of the matters, the Court of Session found the appellant guilty of offences punishable under Sections 449, 302 and 201 IPC and sentenced him, among others, to imprisonment for life. The appellant was, however, found not guilty of the offence punishable under Section 377 IPC. The appellant is deeply aggrieved by his conviction and sentence, hence this appeal.

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5. Heard the learned counsel for the appellant as also the learned Public Prosecutor.

6. The point that arises for consideration is whether the conviction of the appellant and the sentence passed against him are sustainable in law.

7. In order to adjudicate the point, it is necessary to refer to the evidence in the case. PW1 is the grandfather of the victim on whose information the case was registered. It was deposed by PW1 that on 23.06.2012 at about 12 p.m., the victim was seen playing with the appellant in the courtyard of their house; that he went to a nearby shop thereupon and that when he returned to his house, it was noticed that the appellant was sleeping. It was deposed by PW1 that since the victim was not seen around then, he enquired in the neighbourhood and one among the neighbours namely, Vidya when peered into the house of the victim, noticed that the victim was standing still on a cot and that the house was locked from outside. It was deposed by PW1 that the husband of Vidya who came there then broke open the door and when Crl.A. No.979 of 2018 2025:KER:2870 -: 7 :- one of the neighbours namely, Karunakaran Pillai entered the house thereupon, it was noticed that the victim was hanging from the iron pipe affixed to the roof of the building, with a shawl tied around his neck. It was deposed by PW1 that the appellant then entered inside the house, brought down the victim by untying the shawl and placed the victim on the cot. It was deposed by PW1 that thereupon, the appellant also laid along with the victim. It was deposed by PW1 that it was he who handed over to the police the lock and padlock which were removed from the house of the victim. MO1 series are the lock and padlock. In cross-examination, it was clarified by PW1 that he does not know whether someone else had come to the house before he returned from the shop.

8. PW2 is Vidya who first found the victim inside his house. PW2 deposed the said fact in her evidence. In addition, it was stated by PW2 that it was her husband who broke open the door of the house and it was Karunakaran Pillai who entered inside the house and informed her husband that the victim is no more. PW3 is Karunakaran Pillai. PW3 gave Crl.A. No.979 of 2018 2025:KER:2870 -: 8 :- evidence in tune with the evidence given by PW2. It was clarified by PW3 that when he entered the building, he found the victim hanging from the iron pipe. When PW3 was asked in chief-examination as to whether the leg of the victim was touching the cot then, he stated that he did not notice that fact. It was also clarified by PW3 that, it was thereafter that the appellant reached the house of the victim, untied the shawl and placed the victim on the cot. It was deposed by PW3 that the appellant thereupon closed the door and sat on the side of the victim without allowing anyone to enter inside the room. PW6 is the mother of the victim and the sister of the appellant. PW6 deposed that the victim was very close to the appellant and that she left home for work on the relevant day after entrusting her children to PW1 and the appellant.

9. PW11 was the doctor who conducted the postmortem examination on the body of the victim and issued Ext.P7 postmortem certificate. Injuries 1 and 2 noticed by PW11 at the time of postmortem examination, as deposed by her, are the following:

Crl.A. No.979 of 2018

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2. Abrasion 17cm long on the front and sides of neck being 6cm below tip of right mastoid process (2.5cm broad) 5.5cm below chin in midline (2.5cm broad) over and above thyroid cartilage and 6cm below tip of left mastoid process (2.5cm broad).

Flap dissection of neck done under bloodless field. Subcutaneous tissue underneath the injuries were pale. Hyoid bone, muscles, vessels, cartilages and other structures of neck were normal and intact."

It was opined by PW11 that the death was due to constriction force on neck and that injury 2 on the neck is one capable of producing death. It was deposed by PW11 that the ligature material was brought along with the body of the deceased and the knot seen in the ligature material was complicated. It was also opined by PW11 that the possibility of a nine year old boy applying the knot found on the ligature material is highly remote. In cross-examination, it was stated by PW11 that the cause of death of the victim was due to injury 2.

10. As noted, the appellant gave evidence in the case as DW1. It was admitted by the appellant in his evidence that it was by about 11.30 a.m. on the relevant day that his father left to the shop and that he was playing with the victim Crl.A. No.979 of 2018 2025:KER:2870 -: 10 :- at the relevant time. It was also his version that after sometime, one of his cousin sisters namely, Shalini came in search of the victim and took him along with her for tuition. According to the appellant, he then went to the junction in search of a job and he saw his father returning home while he was on the way to the junction. It was deposed by the appellant that he returned home only by about 2.30 p.m., and at that time, there was a crowd gathered. It was deposed by the appellant in his evidence that the house of the victim was locked with the lock which he brought from Lakshadweep. In cross-examination, it was clarified by the appellant that it was not possible for the victim to tie the shawl to the iron pipe by standing on the cot. DW2 is Shalini referred to by the appellant in his evidence. DW2 deposed that even though she used to conduct tuition for children, she did not provide tuition to the victim.

11. As noted, there is no direct evidence to prove the overt acts attributed to the appellant. The prosecution, in the circumstances, attempted to prove the overt acts by Crl.A. No.979 of 2018 2025:KER:2870 -: 11 :- circumstantial evidence. The essence of the arguments advanced by the learned counsel for the appellant is that no circumstances which have a definite tendency of implicating the appellant in the crime, has been proved in the case. It was also argued by the learned counsel that inasmuch as it is alleged by the prosecution that the appellant committed murder of the victim, it was obligatory for the prosecution to prove in what manner the appellant committed murder of the victim. According to the learned counsel, there is no evidence in the case to establish the manner in which the appellant allegedly caused the death of the victim. The only evidence let in by the prosecution is the opinion evidence of PW11 namely, the doctor who conducted the postmortem examination on the body of the victim, that the death was due to constriction force applied on the neck of the victim. According to the learned counsel, in the absence of any evidence as to the manner in which the death of the victim was caused, the appellant cannot be convicted for the offence of murder punishable under Section 302 IPC. It was also argued by the learned counsel that Crl.A. No.979 of 2018 2025:KER:2870 -: 12 :- the possibility of this case being a case of suicide cannot be ruled out for, injury 2 noted by PW11 is one that could be caused in the case of suicidal hanging also. It was argued by the learned counsel that inasmuch the appellant was acquitted of the charge under Section 377 IPC, even the Court of Session held that the prosecution failed to prove the motive attributed to the appellant for committing the crime. According to the learned counsel, in a case of this nature, the motive has a significant role and in the absence of any evidence for the motive, it cannot be said that the prosecution has established the guilt of the appellant beyond reasonable doubt. It was pointed out by the learned counsel that the only circumstance that was established in the case is the fact that the victim was found playing with the appellant a few hours before he was found dead and it is only on the ground that the appellant is obliged to explain as to how the death occurred and that he has not offered any explanation as to how the same occurred, that he was convicted, applying the last seen together theory. It was vehemently argued by the learned counsel that the last Crl.A. No.979 of 2018 2025:KER:2870 -: 13 :- seen together theory is not independently sufficient to lead to a finding of guilt and that the same would only establish a link in the chain of circumstances, in a case on circumstantial evidence. It was also argued by the learned counsel that the said theory, at any rate, cannot be applied on the facts of the present case inasmuch as the place of occurrence is a house adjoining the residential house of the appellant himself.

12. Per contra, the learned Public Prosecutor supported the impugned judgment pointing out that inasmuch as the fact that the appellant was in the company of the victim a few hours before he was found dead, is not disputed by the appellant, he is obliged under law to offer an explanation as to how the death of the victim occurred. According to the learned Public Prosecutor, in the case on hand, the appellant failed to offer any explanation as to how the death of the victim occurred and that therefore, the Court of Session is justified in arriving at the impugned decision. That apart, it was also argued by the learned Public Prosecutor that inasmuch as it is found that the stand taken by the appellant that the victim was Crl.A. No.979 of 2018 2025:KER:2870 -: 14 :- taken for tuition by DW2 was found to be false, the same would form an additional link in the chain of circumstances. Similarly, it was argued by the learned Public Prosecutor that the fact that the lock used to lock the house of the victim from outside was a lock in the possession of the appellant, the conduct of the appellant in lying down with the victim after placing the body of the victim on the cot and also the conduct of the appellant in not allowing anyone to remain in the room, are also circumstances which would form additional links in the chain of circumstances.

13. We have examined the arguments advanced by the learned counsel for the parties on either side.

14. Inasmuch as the appellant was found not guilty of the charge framed under Section 377 IPC, the question to be examined is as to whether the finding of the Court of Session that it was the appellant who committed the murder of the victim, is sustainable in law. As pointed out by the learned counsel for the appellant, the charge framed against the appellant does not indicate the manner in which Crl.A. No.979 of 2018 2025:KER:2870 -: 15 :- the assailant caused the death of the victim. The suggestion made by the Public Prosecutor during cross-examination of DW1, namely the appellant, however, was that the victim was hung after he became unconscious when he was strangulated by the appellant. The relevant suggestion reads thus:

അചവ ആയ പകതവരദ ല ഗ ക ബനതൽ ഏർപ ടതനശ ഷ അചവപ കഴതൽ ട ച പ#രകശബ%ധ ഇല%ത%യശ)%ൾ പകട തകയതശല. (Q) The primary issue is whether the death was a homicide. As pointed out by the learned counsel for the appellant, the medical evidence let in by the prosecution in the case would only show that the death occurred on account of constriction force applied on the neck of the victim. The argument advanced by the learned counsel for the appellant in this regard is that merely on account of the fact that the death occurred on account of constriction force applied on the neck, it cannot be held that the death was a homicide, for, according to him, such deaths include suicides as well. We find force in this argument. Needless to say, from the opinion given by PW11 alone, the chance of a suicide also cannot be ruled out. Crl.A. No.979 of 2018

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15. It is seen that when the appellant was cross- examined by the Public Prosecutor, he was asked whether it was possible for the victim to tie one end of the shawl to the iron pipe by standing on the cot, he readily replied that it is not possible. The relevant portion of the deposition was that "അചവനന ഷ%ൾ പക%ണന കട ൽ നനന G.I ല )ശ കന പകട%ൻ റല." Be that as it may, the materials on record would indicate that the house of the victim was a one-room house, height of which is 235 cm. The height from the cot on which the victim was found standing, to the iron pipe fixed on the roof of the building is 159 cm. The materials on record would also indicate that the height of the victim boy was only 148 cm. In other words, even if the victim stands on the cot, there would still be a gap of about 30 cm. from the top of his head to the iron pipe. No doubt, age is no bar to suicidal hanging. Children are also known to have committed suicide by hanging from shame or grief. But, according to us, we do not think that in the case on hand, the victim boy was likely to have been able to tie the shawl in a way that could support his weight while hanging. Crl.A. No.979 of 2018

2025:KER:2870 -: 17 :- Even assuming that the boy could tie the shawl to the iron pipe as indicated above, he would still have to tie the other end of the shawl around his neck and then descend to a lower position so as to hang himself. As noted, the evidence tendered by PW2 is that when she peered through the window of the house, what she found was that the victim was standing on the cot. As noted, the evidence tendered by PW3 was that when he entered the house of the victim, PW3 found the victim hanging from the iron pipe, and when he was asked as to whether the legs of the victim was touching the cot then, the answer of PW3 was that he did not notice the said fact. From the evidence tendered by PWs 2 and 3, it is thus clear that the victim was found hanging from the iron pipe above the cot kept inside the building. Inasmuch as the victim was found hanging from the iron pipe above the cot, it remains a mystery as to how then the death was caused. In the above circumstances, in the absence of the possibility of the death occurring on account of an accident, we are inclined to hold that the death is a homicide.

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16. The next issue is as to whether the prosecution has established beyond reasonable doubt, that it was the appellant who caused the death of the victim. As noted, there is no direct evidence to establish the same. The circumstances relied on by the prosecution to establish the complicity of the appellant in the crime, are the following :

(i) the appellant being a person who was playing with the victim in his house a few hours before the victim was found dead is obliged under law to offer an explanation as to how the death occurred, and that the explanation offered by the appellant in this regard is false.

(ii) the lock with which the house of the victim was seen locked from outside was a lock bought from Lakshadweep by the appellant.

(iii) the conduct of the appellant in remaining with the body of the victim on the cot after requiring others to go out of the room;

It is trite that the following are the principles to be applied while considering the guilt of the accused in cases involving circumstantial evidence:

(i) that the circumstances from which the conclusion of guilt is drawn are fully established, Crl.A. No.979 of 2018 2025:KER:2870 -: 19 :-

(ii) that the circumstances shall be of a conclusive nature and tendency,

(iii) that the facts so established are 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,

(iv) that they should exclude every possible hypothesis except that the accused is guilty, and

(v) that 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.

As rightly argued by the learned counsel for the appellant, in a case on circumstantial evidence, the circumstances relied on shall be of a conclusive nature which has a definite tendency of implicating the assailant in the crime.

17. When one examines the circumstances relied on by the prosecution, in the light of the principle that the circumstances shall be of a conclusive nature which has a definite tendency of implicating the assailant as the accused in the crime, we do not think that the circumstance that the lock with which the house of the victim was locked was one in the Crl.A. No.979 of 2018 2025:KER:2870 -: 20 :- possession of the appellant, is a circumstance which could be relied on at all for, the possibility of the said lock being used in the house of the victim by others, cannot be ruled out. In other words, it need not have been the appellant who locked the house of the victim from outside with the said lock. Similarly, we do not think that the circumstance that the conduct of the appellant in remaining with the body of the victim on the cot in which he was placed, after requiring others to leave the room is also one that could be taken as a conclusive circumstance. We take this view, as we are unable to rule out the possibility of accepting such a conduct as a mode of affection expressed by the appellant towards the victim boy who was a close relative of him, especially since it has come out from the evidence of the mother of the victim that the victim was very close to the appellant. Even though the conduct of the appellant in requiring others to leave the house at that point of time appears to us to be a strange conduct, we are unable to infer from the said conduct, anything conclusive to connect the appellant with the crime.

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18. Now, let us deal with the main circumstance. A close reading of the impugned judgment would indicate that it is based on a finding that the appellant who was found playing with the victim a few hours before the victim was found dead, is obliged under law to offer an explanation as to how the death occurred, and that since the explanation offered by the appellant in this regard is found to be false, the Court of Session came to the conclusion that it was the appellant who caused the death of the victim. The Court of Session relied on the "last seen together" theory in support of the conclusion. Before considering the question whether the said circumstance is suffice in a case of this nature to establish the guilt of the accused beyond reasonable doubt, it is necessary to mention that in a case on circumstantial evidence, motive of the accused plays a significant role. No doubt, if the circumstances established in a case unerringly point towards the guilt of the accused, then even in the absence of proof of motive, the court would be justified in finding the accused guilty. But, in cases where the circumstances established do not unerringly point Crl.A. No.979 of 2018 2025:KER:2870 -: 22 :- towards the guilt of the accused, the motive of the accused would play a vital role. The last seen together theory comes in to play only where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead, is so small but the possibility of any person other than the accused being the author of the crime, becomes impossible [See Bodhraj v. State of J&K, (2002) 8 SCC 45]. But, it is now trite that the "last seen together" theory cannot by itself form the basis of a conviction and there must be something more to establish the connectivity between the accused and the crime for, non- explanation or false explanation on the part of the accused would not by itself exclude the possibility of anyone else being the perpetrator of the crime [See Kanhaiya Lal v. State of Rajasthan, 2014 (4) SCC 715 and Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372]. As noticed, in a case on circumstantial evidence, 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. No Crl.A. No.979 of 2018 2025:KER:2870 -: 23 :- doubt, when an accused offers an explanation and when such explanation is found to be untrue, then the same offers an additional link in the chain of circumstances to complete the chain, if the chain is otherwise complete.

19. Reverting to the facts, it is placing reliance on the evidence tendered by PW1 that the Court of Session found that the appellant was playing with the victim a few hours prior to his death. The evidence of PW1 is to the effect that he saw the victim playing with the appellant in the house of the latter, when he left to the nearby shop at about 12 p.m. In other words, the evidence is that the victim was present with the appellant in the house of the latter, where he would have otherwise usually been present with the appellant. In the absence of the parents of the victim in his house, the evidence indicates that the house of the appellant was a place where the victim was usually likely to be in. The pointed question is whether such presence of the victim and the appellant together could be considered for applying the last seen together theory. We are of the view that such presence cannot Crl.A. No.979 of 2018 2025:KER:2870 -: 24 :- be considered for applying the last seen together theory in the facts and circumstances of this case. Inasmuch as the last seen together theory is one derived from the principle in Section 106 of the Indian Evidence Act, according to us, it is only in situations where the accused alone will be in a position to explain as to how the death of the victim occurred, the theory could appied. In the case on hand, admittedly, the grandmother of the victim, was very much present in the house along with the appellant and the victim. No one had seen the appellant going to the house of the victim. As noted, the specific case of the prosecution is that the appellant was present in his house, when PW1 returned home. If that be so, the reason as to why the appellant had closed the door of the house of the victim from outside and not fled from the scene, remains to be a mystery. That apart, Ext.P6 scene plan prepared to scale indicates that there are a few houses also around the place of occurrence in its close vicinity. In other words, the possibility of anybody else committing the crime cannot be ruled out. In the above circumstances, according to Crl.A. No.979 of 2018 2025:KER:2870 -: 25 :- us, it is unsafe to apply the "last seen together" theory to hold the appellant guilty in a case of this nature. Needless to say, the prosecution has failed to establish the guilt of the accused beyond reasonable doubt. The appellant, therefore, is entitled to the benefit of doubt.

In the result, the criminal appeal is allowed, the impugned judgment is set aside and the appellant is acquitted. The appellant shall be set at liberty forthwith from the prison concerned, if his continued detention is not required in connection with any other case. Registry shall communicate this judgment forthwith to the prison concerned, where the appellant is undergoing incarceration.

Sd/-

P.B.SURESH KUMAR, JUDGE.

Sd/-

JOBIN SEBASTIAN, JUDGE.

ds 08.01.2025

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