Kerala High Court
M.Padmavathy vs State Of Kerala on 9 December, 2024
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
Crl. Appeal Nos.1193 of 2017 & 755 of 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 9TH DAY OF DECEMBER 2024 / 18TH AGRAHAYANA, 1946
CRL.A NO. 1193 OF 2017
CRIME NO.61/2010 OF Payyannur Police Station, Kannur
CP NO.5 OF 2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
PAYYANNUR
SC NO.4 OF 2011 OF SPECIAL COURT FOR THE TRIAL OF OFFENCES
AGAINST WOMEN AND CHILDREN, THALASSERY
APPELLANT/1ST ACCUSED
M.SHAMMYKUMAR, S/O NARAYANAN, AGED 43 YEARS, PULIKKAL
HOUSE, PALUTTUKAVU, AZHIKKAL AMSOM/POST, KANNUR
DISTRICT. 670009
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.THOMAS SABU VADAKEKUT
SMT.S.LAKSHMI SANKAR
RESPONDENT/STATE
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM - 682031
BY SMT.S.AMBIKA DEVI - SPL.PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.11.2024,
ALONG WITH CRL.A.755/2017, THE COURT ON 9.12.2024 DELIVERED THE
FOLLOWING:
Crl. Appeal Nos.1193 of 2017 & 755 of 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
MONDAY, THE 9TH DAY OF DECEMBER 2024 / 18TH AGRAHAYANA, 1946
CRL.A NO. 755 OF 2017
CRIME NO.61/2010 OF Payyannur Police Station, Kannur
CP NO.5 OF 2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
PAYYANNUR
SC NO.4 OF 2011 OF SPECIAL COURT FOR THE TRIAL OF OFFENCES
AGAINST WOMEN AND CHILDREN, THALASSERY
APPELLANT/3RD ACCUSED
M.PADMAVATHY, W/O.NARAYANAN, AGED 72 YEARS, PULIKKAL
HOUSE, PALUTTUKAVU, AZHIKKAL AMSOM/POST, KANNUR
DISTRICT-670009.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.R.ANIL
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.THOMAS SABU VADAKEKUT
RESPONDENT/STATE
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM
BY SMT.S.AMBIKA DEVI - SPL.PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.11.2024,
ALONG WITH CRL.A.1193/2017, THE COURT ON 09.12.2024 DELIVERED THE
FOLLOWING:
Crl. Appeal Nos.1193 of 2017 & 755 of 2017
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C.R.
JUDGMENT
Dated this the 9th day of December, 2024
C. Pratheep Kumar, J
‘Suspicion’ is a disease. If it is not treated, one becomes blind and the
consequence will be disastrous.
These appeals are filed by accused persons 1 and 3 respectively, in
Sessions Case No.4 of 2011 on the file of the Special Court for the trial of
Offences against Women and Children, Thalassery, against the judgment dated
29.7.2017, finding the 1st accused guilty of the offences under Section 498A,
302 and 201 IPC and the 3rd accused guilty of the offence punishable under
Section 498A IPC.
2. The 1st accused is the husband of deceased Remya. The 2 nd accused is
the brother of 1st accused and the 3rd accused is the mother of the 1st accused.
The trial court acquitted the 2nd accused, while convicted accused persons 1 and
3, as stated above.
3. BACKGROUND: The background of the prosecution case is that, on
22.1. 2010 at about 1 p.m., CW1, namely the manager at Everest Lodge,
Payyannur Central Bazaar, found that the bolt of the door in room No.204 of
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the lodge was locked from outside. When he opened the door, he found that
a lady aged about 26 years was found hanging from the hook of a fan. It was
on 20.1.2010, she along with a male person and a child of about 2 years took
the said room and they were staying in the said room. However, on 22.1.2010 at
1 p.m. when he opened the door, the male person and the child were absent in
the room. He immediately reported the matter to the GD charge of Payyannur
Police Station and on the basis of the above first information statement (Ext.
P29), a crime was registered as Crime No.61/2010 under Section 174 Cr.P.C.
PW28, the Sub Inspector, Payyannur Police Station who had conducted the
initial investigation, at first, found that it is a case involving Section 498-A IPC
against the accused persons 1 to 3. Accordingly, the section was altered to 498-
A IPC against the accused persons 1 to 3 and he filed a report to that effect, on
1.2.2010. Thereafter, when the investigation progressed, the offence under
Section 302 IPC was also revealed and accordingly, another report was filed on
20.2.2010, incorporating the offence under Section 302 IPC also. Thereafter,
the investigation of the case was taken over by the DySP, Thaliparamba,
namely PW39. After the incident, the 1st accused was absconding and
therefore, PW39 filed final report stating that the 1 st accused was absconding.
Subsequently, the 1st accused was extradited from Dubai and thereafter further
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investigation was conducted by PW40 and a further report was also filed by
him. The investigation revealed that the offence under Section 302, 201, 498A
of IPC were committed by the 1st accused and the offence under section 498-A
IPC was committed by accused persons 2 and 3 and accordingly, they were
tried for the aforesaid offences.
4. PROSECUTION CASE: The prosecution case is that, the 1 st accused
married Smt. Remya, the deceased on 2.6.2002 and while they were living
together as husband and wife in the residence of the 1st accused, he along with
the accused persons 2 and 3, suspecting her chastity spread false allegations
against her and subjected her to cruelty demanding more dowry. In that respect,
Remya filed a complaint against accused persons before the Circle Inspector,
Women’s Cell, Kannur. Due to that enmity, the 1 st accused with the intention to
murder Remya, secretly came home on 15.1.2010 from his place of work in
UAE. On 16.1.2010, at about 5.45 p.m. he secretly took Remya and their
younger daughter aged 1½ year, from her house, and finally reached Everest
Lodge, Payyannur Central Bazaar, on 20.1.2010 and stayed in room No.204
therein. While staying in that room, he murdered Remya by hanging her from a
hook in the sealing of that room by tying a shawl around her neck. Thereafter,
with the intention to destroy evidence, locked the door of the room from
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outside using the bolt, stealthily dropped the younger child Keerthana at the
courtyard of the house of PW1, the father of Remya, at about 12.30 a.m. on
21.1.2010. Then he telephoned PW1, enquired about Remya and thereby
deliberately suppressed the factum of murder of Remya.
5. EVIDENCE: The evidence in the case consists of the oral testimonies
of PWs 1 to 40 and documentary evidence Exhibits P1 to P70 and P70(a) on the
side of the prosecution. MOs 1 to 34 were also identified. On the side of the
accused persons, Exhibits D1 to D6 were marked. Exhibit C1 was marked as a
court exhibit. After evaluating the available evidence, the trial court found the
1st accused guilty of the offences under Sections 302, 201 and 498-A IPC and
convicted him inter alia, for imprisonment for life and fine, the 3 rd accused was
found guilty under Section 498 A of IPC, while the 2nd accused was acquitted of
the charge. Being aggrieved by the above judgment of the learned Sessions
Judge, the 1st accused preferred Crl. Appeal No.1193 of 2017 and 3 rd accused
preferred Crl. Appeal No.755 of 2017.
6. POINTS: Now, the points that arise for consideration are the
following:
1) Whether the accused 1 and 3 subjected deceased Remya to
cruelty and thereby committed the offence punishable under
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Section 498-A IPC?
2) Whether the prosecution has succeeded in proving that the 1 st
accused has committed the murder of Remya, as alleged?
3) Whether the 1st accused has committed the offence punishable
under Section 201 of IPC?
4) Whether the impugned judgment of conviction and sentence
passed by the trial court calls for any interference, in the light of
the grounds raised in the appeal?
7. Heard the learned Senior Advocate Sri. B.Ramanpillai, on behalf of
the appellants and Smt. S. Ambika Devi, learned Special Public Prosecutor on
behalf of the State.
8. POINT NO.1:- In this case, there is no direct evidence to prove the
charges levelled against the accused persons and therefore, the prosecution has
solely relied upon circumstantial evidence, including the presumptions under
section 106 of the Evidence Act and last seen theory. The learned Senior
Counsel would argue that in this case, the prosecution has miserably failed in
proving the charges against the appellants beyond reasonable doubt, on several
grounds. One of the arguments advanced by the learned Senior Counsel is that
161 Cr.P.C statements of PWs 1 to 4, 10 and 13 recorded by PW28, the Sub
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Inspector, Payyannur Police Station who had conducted the initial investigation
of this case, was neither supplied to the accused nor produced along with the
final report and as such, prejudice was caused to the accused persons. Another
argument was that, though the finger print expert found out certain chance
prints from a glass as well as liquor bottle from the lodge room, it was not
pursued and hence the involvement of somebody else in the commission of
offence was not ruled out. It was argued that the 1st accused was not in India,
during the relevant period. Another argument raised by him is that the
prosecution has not succeeded in proving the actual cause of death, as
according to him, the medical evidence available in this case has not ruled out
the possibility of suicide. Another argument advanced by him is that according
to PW20, the Professor, Forensic Medicine and the Police Surgeon, Medical
College Hospital Pariyaram, who had conducted the postmortem examination
on the body of the deceased, only if the victim became intoxicated or
unconscious, a person could hang her from a hook in the ceiling, as alleged in
this case. It was also argued that, in this case, there is no evidence to prove that
the victim became intoxicated or unconscious before the commission of the
offence. According to the learned senior counsel, even if the victim became
unconscious, it is not at all possible for a man to hang such a lady from the
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hook in the ceiling, as alleged by the prosecution. Another argument raised by
him is that the prosecution has not succeeded in proving that it was the 1 st
accused who has taken room No.204 in Everest Lodge, as the name and address
shown in Exhibit P13 Register is not that of the 1 st accused. He would also
argue that, the car allegedly used for taking the victim to the lodge was not
traced out. Another contention raised by him is that the call details of the phone
allegedly used by the accused and deceased for contacting PWs1,3 and 4 were
not produced in evidence. He has raised another contention that in this case
there is absolutely no evidence to prove that the accused persons had subjected
the deceased to cruelty as alleged. In the light of the above grounds, he would
argue that the accused persons are entitled to get an order of acquittal.
9. On the other hand, the learned Special Public prosecutor would
argue that in this case, there is sufficient circumstantial evidence to prove the
guilt of the accused persons beyond reasonable doubt and therefore, she prayed
for dismissing the appeals.
10. CHARGE OF CRUELTY: The fact that the 1st accused is the
husband of deceased Remya, is not in dispute. Admittedly, the marriage
between them was solemnized on 2.6.2002. It is also admitted that three
children were born in that wedlock. The first child is a male, while the other
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two are girl children. It is also admitted that the 1 st accused was employed in
UAE, during the relevant time. The case of the prosecution is that the 1 st
accused was suspicious of the chastity of his wife and disputed the paternity of
the elder child. It is also alleged that he along with the other accused persons
subjected her to cruelty demanding more dowry. In order to prove the cruelty,
they have produced Exhibit P1 complaint given by Remya to PW17, the Circle
Inspector, Women’s Cell, Kannur. However, at the time of evidence, the
prosecution witnesses PWs1 to3 mainly focused on the suspicion of the 1 st
accused on the chastity of Remya and in the paternity of the elder son.
According to PW2, the sister of Remya, at the time of marriage, the 1 st accused
had not raised any demand for dowry. She also deposed that even after the
marriage, he had not raised any demand for dowry. PW3, the mother of Remya
also deposed that she never saw the 1st accused assaulting Remya.
11. According to PWs 1 to 4, when the 1st accused came from abroad,
on 16.1.2010, Remya took the younger child and went along with him, without
informing her parents as well as other family members. PW1, the father of
Remya would swear that Remya used to go along with 1 st accused even
ignoring their opposition. Therefore, even from the evidence of PWs 1 to 3, the
parents and sister of Remya, it can be seen that there is no merit in the
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prosecution case that the accused persons subjected Remya to cruelty, as
alleged. At the same time, when the Circle Inspector, Women’s Cell, Kannur
was examined as PW17, it was revealed that the deceased was very much fond
of her husband. In the above circumstances, we are constrained to hold that the
prosecution has not succeeded in proving that the accused persons subjected
Remya to cruelty, as alleged. In other words, the prosecution has failed to prove
the offence under Section 498-A IPC against the appellants. Point No.1
answered accordingly.
12. POINT NO.2:- The 1st accused stands charged for committing
murder of his wife by hanging her by a shawl from a hook placed at the ceiling
of room number 204 in Everest lodge, Payyannur. However, he has taken a
stand of total denial. According to him, on 20.1.2010, on the date when Remya
died, he was in his place of work in UAE and that, he did not come to India
during the said period.
13. PLEA OF ALIBI: When an accused pleads alibi, the burden is on
him to prove it under section 103 of the Evidence Act. (State of Haryana v.
Sher Singh and Others, (1981)2 SCC 300; Rajendra Singh v. State of U.P.
and Another, (2007) 7 SCC 378). However, in order to prove alibi, the 1 st
accused has not adduced any positive evidence. Rather, he has relied upon the
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weakness in the prosecution evidence, in his attempt to show that he was not in
India during the relevant period.
14. At the same time, the prosecution has relied upon the evidence of
PWs 34 and 35 to prove that on 20.1.2010, the date of death of Remya, the
accused was very much available in India. Further, the prosecution has relied
upon the evidence of PWs 10, 13, 14 and 15 to prove his presence in and
around the place of occurrence. Out of which, PW10 was a Security in Everest
Lodge, and PW13 was a helper engaged in house keeping in that lodge. PW14
was running a mechanical workshop at Thottada and PW15 is his brother.
PW34 is the Assistant Director, Bureau of Emigration, Ministry of Home
Affairs, International Airport, Manglore and PW35 is the Assistant Central
Intelligence Officer-II, Bureau of Emigration, Kozhikode. Since PW34 and 35
being officials in the Emigration department, and they were examined to prove
that the 1st accused arrived in India during the relevant period, we consider it
apposite to examine their evidence first.
15. PW34 would swear that Exhibit P48 and P49 are the travel details of
the 1st accused for the period from 1.1.2009 to 8.1.2014. Relying upon those
documents, PW34 would swear that, on 30.9.2009 the 1 st accused departed
from Karipur Airport, as per Flight IC597. Then, on 22.1.2010, he departed
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from Manglore Airport through Flight No.IX/811. Thereafter, on 17.8.2011, he
departed from Trivandrum Airport as per Flight No.TR 2613. He would further
swear that, as per Exhibit P49 arrival details of the 1 st accused, on 16.8.2009, he
arrived at Cochin International Airport as per flight IX/434. Thereafter on
15.1.2010, he arrived at Karipur Airport as per flight No.IX/344. Again on
8.1.2014, he arrived at Cochin Airport, as per Flight IX/434.
16. PW35 would swear that Exhibit P51(a) is the document produced by
him containing the travel details of the 1st accused from Kozhikode Airport
during the period from 1.1.2009 to 31.12.2010. As per the above document, on
30.9.2009, the 1st accused travelled from Karipur to Sharjah as per Flight No.
IC 597. Thereafter on 15.1.2010, he travelled from Dubai to Karipur as per
Flight IX/344. Therefore, from the evidence of PW34 and 35, it is revealed that
on 30.9.2009, the 1st accused went from Karipur to Sharjah and thereafter on
15.1.2010 he returned to Karipur and thereafter only on 22.1.2010 he departed
from India through the Manglore Airport. In short, from the evidence of PWs
34 and 35 and from Exts. P48 to 51, it is revealed that the 1 st accused was
available in India during the period from 15.1.2010 to 22.1.2010.
17. The admissibility of Exhibits P48, 49 and 51 documents were
seriously raised by the learned senior counsel at the time of arguments. Along
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with Exhibits P48, 49 and 51, PWs 34 and 35 have produced Section 65B
certificates also. It was argued by the learned Senior Counsel that PWs 34 and
35 are not competent persons to prove those documents. PW34 would swear
that Exhibits P48 and 49 are computer generated records from the Central
Server located at New Delhi. Section 65B certificate is signed by Sri. S.K.
Gupta, who is a colleague of PW34, whose signature he identified. PW34
would further swear that Mr. S.K. Gupta is the custodian of all the travel
records. He deposed that, the details of the travel of every person going outside
India will get automatically entered in the computer, from which these
statements were generated. During the cross examination, he clarified that there
is absolutely no human intervention in generating the aforesaid records. He
also deposed that the information in Exhibit P48 and 49 are regularly carried
out, maintained and fed in the computer in the normal and regular official
activity and that it cannot be accessed by anybody else. Since from the
evidence of PW34, it is revealed that the details of the travel of every person
going outside India will get automatically entered in the computer server
located at New Delhi and there is no human intervention in the uploading of
those data and Exhibits P48 and P49 were duly authenticated by the person in
custody of those documents, we do not find any grounds to disbelieve Exhibits
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P48 and P49.
18. A similar objection was raised as against the receipt of Exhibit P51
also. PW35 would swear that the main computer server from which the printout
was taken, is located at New Delhi and Exhibit P51 was the print out taken
from the computer situated at Karipur Airport in his own custody. He would
also swear that he is in charge of the computer systems located at Karipur
Airport and that he knew the user ID as well as the password of the above
computer system. By using the above user ID and password, which are
confidential, he has taken out the print out of Exhibit P51 and attested by him.
The main objection raised as against PW35 is that, the summons was addressed
to the Foreigners’ Regional Registration Officer and not to PW35. At the time
of evidence, PW35 deposed that he appeared before the court as authorized by
the Foreigners’ Regional Registration Officer. Since from the evidence of PW35
it is revealed that PW35 himself is the custodian of the computer system
located at Karipur Airport, that the main server of which is located at New
Delhi, that he himself had taken out the print out of the data available with the
main server located at New Delhi using the user ID and password available to
him in his official capacity and attested by himself, we do not find any merits in
the objection raised against the receipt of Exhibit P51 also.
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19. At this stage, the learned Senior Counsel raised another objection
that there is no guarantee that Exhibits P48, 49 and 51 relate to the 1 st accused.
As per the final report, the address of the 1 st accused is M. Shammikumar, s/o
Narayanan, Pulickal house, Polottukavu, Azhikode Amsam. In Exhibit P48, the
name of the passenger is shown as Shammikumar and Shammikumar
Madankara, while in Ext. P49 it is Shammikumar Madankara. Therefore, he
would argue that there is no guarantee that the passengers referred to in those
documents is the 1st accused involved in this case.
20. According to PWs 34 and 35, they have traced out the details
called for by the court, by looking at the passport number of the passenger and
not by looking at the name. As per Exhibit P51, the passport Number of M.
Shammikumar is, E7606699. Further as per Exhibit P51, the date of birth of
Shammikumar is, 31.5.1975. In Exhibit P48, out of three entries, in one entry,
the name of the passenger is shown as Shammikumar Madankara, while in the
other two entries the name shown is Shammikumar. However, the passport
Number shown against all the three entries is the same, E7606699. The date of
birth shown in Ext. P48 is also 31.5.1975. In Exhibit P49 also, the date of birth
of Shammikumar Madankara is shown as 31.5.1975. However, the passport
Number for the first two entries is shown as E 7606699, while for the third
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entry is L1217591.
21. Exhibit P42 series are the documents seized from the 1 st accused
when he was arrested and his body was searched by PW31. Exhibit P42 is the
copy of the Labour Card issued by the Ministry of Labour, UAE in favour of
Madankara Narayanan Pulickal Shammikumar. Exhibit P42(a) is the copy of
identity card issued in the name of Shammikumar Madankara Narayanan
Pulickal, from UAE. Exhibit P42(b) contains the copy of passport of
Shammikumar Madankara, with passport No. L1217591 valid for the period
from 28.5.2013 to 27.5.2023. It also contains copy of the residence permit
issued from Dubai, UAE valid for the period from 12.10.2011 to 11.10.2013, in
favour of Madankara Pulickal Shammikumar. In the above residence permit,
the passport number shown is E7606699.
22. The 1st accused has not challenged the seizure of Exhibit P42 series
from him, in the body search conducted by PW31. He also has no case that Ext.
P42 series documents were not issued in his favor, from UAE. Therefore, it can
be safely concluded that the names Shammikumar, Shammikumar Madankara,
Madankara Pulickal Shammikumar and Shammikumar Madankara Narayanan
Pulickal shown in Ext. P42, 42(a) and 42(b) represent the same person namely
the 1st accused. Since in the residence permit issued in the year 2011 in favour
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of Shammikumar, the passport number shown is, E 7606699 and in the new
passport issued in the year 2013, the passport number shown is L1217591, it
can be safely concluded that passport No. E7606699 is the old passport number
of Shammikumar and L1217591 is the number of his new passport issued on
28.5.2013. Presence of passport No. E7606699 and L1217591 in Exhibit P49
is to be appreciated in the above context. Since both the above passports belong
to the 1st accused, valid for two different periods, he cannot now contend that
Exhibit P49 could not be relied upon as it contain two different passport
numbers.
23. A1 NOT PRODUCED HIS PASSPORT: In this context, it is also
to be noted that the 1st accused has not produced the original or even a copy of
his passport, before the court, to prove that passport No. E7606699 and
L1217591 does not belong to him or that his passport number is a different one.
Similarly, if he has got a case that he has not arrived in India on 15.1.2010 and
not departed from India on 22.1.2010, the same also could have been proved by
producing his passport. Though it was argued that the 1 st accused lost his
passport, the stand taken by him during the cross-examination of PW31 is that
when Dubai police arrested him, his passport was seized and the same was
handed over to PW31, which he denied. The above suggestion put to PW31
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shows that there is no merit in the argument that he lost his passport. Though he
claims that he lost his passport, he has not disclosed the circumstance under
which he lost it. He also has not taken any steps to get a duplicate passport in
place of the one he allegedly lost, in spite of the fact that he was working
abroad. Absence of any such steps from his side is an indicator that he has
actually not lost his passport. Therefore, there is every reason to conclude that
the 1st accused deliberately suppressed his passport. In the above circumstance,
an adverse inference is liable to be drawn against him, under section 114(g) of
the Evidence Act, to the effect that, if it is produced, the same will be
unfavorable to him. In short, from the evidence of PWs 34 and 35 and from
Exhibits P42 series, 48, 49, 50 and 51, it can be safely concluded that the 1 st
accused came to India on 15.1.2010 and left India only on 22.1.2010, and that
too, from Manglore Airport. In other words, the 1st accused has failed in
proving the defence of alibi.
24. On 22.1.2010 the body of deceased Remya was found hanging by
a shawl from a hook on the ceiling in a room in Everest lodge, Payyannur and
the body was first seen by CW1, the Manager of the lodge. In the morning, on
22.1.2010, he saw the said room locked from outside, using a bolt. Since the
room was seen locked as above till the afternoon, out of curiosity, he opened
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the room and saw the dead body. In that respect, he had given Ext. P29, FI
statement also. The fact that Remya died of hanging is not disputed. The
dispute is whether it was a homicide or a suicide. If it was proved that the room
was locked from outside, the same would have helped the prosecution a lot, in
proving that it is a case of homicide. However, the prosecution could not
examine CW1 and prove the FIS.
25. EFFECT OF NON-EXAMINATION OF CW1:- In this case, the
prosecution could not examine CW1, the Manager of Everest lodge who had
given Ext. P29, FI statement to PW28, because, during the trial stage, he
became incapable of giving evidence. The above fact was proved by the
prosecution by examining PW19 as well as by producing the document, Ext.
C1. The evidence of PW19 and Ext. C1 showing that CW1 became incapable
of giving evidence, due to ailments, was not challenged by the accused. In the
above circumstances, the learned Special Public Prosecutor would argue that
the FI statement given by CW1 under Section 154 Cr.P.C (Ext. P29) and the
sworn statement given by him under Section 164 Cr.P.C (Ext. P46) are to be
admitted in evidence, in view of Section 32(1) of the Evidence Act. The above
prayer was seriously objected by the learned Senior counsel. It is true that in
case a witness becomes incapable of giving evidence, Section 32(1) of the
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Evidence Act will apply. However, the statements given by CW1 in the FI
statement and in the 164 Cr.P.C statement, that he had seen room No.204 bolted
from outside, will not come within the sweep of section 32(1) of the Evidence
Act. The law is well settled that, generally, the statements under Sections 154
and 164 can be used only for the purpose of corroboration and contradiction. In
this case, there is absolutely no substantive evidence to show that room No.204
was bolted from outside. In the absence of any substantive evidence in that
respect, Ext. P29, FI statement and Ext. P46, 164 Cr.P.C statement given by
CW1 are not sufficient to prove the fact that room No.204 of Everest lodge was
bolted from outside on 22.1.2010.
26. MEDICAL EVIDENCE: Medical evidence has much relevance in
this case, as the crucial question to be answered is, whether Remya’s death is a
homicide or suicide. In the above circumstance, the evidence of PW20, the
Police Surgeon, Pariyaram Medical College Hospital who had conducted the
postmortem examination on the body of deceased Remya and issued Exhibit
P22 Postmortem certificate is very crucial. The general findings arrived at by
PW20, after examining the dead body are the following:
“General: Body was that of a fair complexioned adult female of
height 168 cm; body was in an early state of decomposition. Dried
salivary dribble mark was seen extending obliquely from left corner of
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mouth, to the jaw. Blood stained discharge was coming out from the
vagina. Eyes were normal. Rigor mortis was retained in the lower
limbs only. Postmortem staining was seen on the lower parts of limbs;
fixed. Marbling was seen in the lower limbs, sides of abdomen, face
and shoulders. Postmortem bullae were seen on the inguinal region.
Cuticle was peeling off on the buttocks. Abdomen was distended with
foul smelling gases of decomposition. Body refrigerated. ”
27. Neck Findings, according to PW20 are the following:
“Neck Findings:- An orange coloured shawl was found tied
round the upper part of neck, with a slip knot on the right side. The
loop, short free end and long free end measured 35 cm, 34 cm and 98
cm respectively; the long tree end was found neatly cut at its distal end.
Underneath, there was a grooved pressure abrasion, completely
encircling the neck. It was situated 4 cm below the right ear (1 cm
broad), 4 cm below the chin (1.5 cm broad), 6 cm below the left ear (1.5
cm broad) and just below the hairline at the back (2.5 cm board). On
layer dissection under a bloodless field, the subcutaneous tissues were
dry and pale. Muscles, blood vessels, cartilages and hyoid bone were
intact.”
28. The other findings of PW20 are the following:
“Other findings: Scalp, skull and dura were intact. Brain showed
autolytic changes. Lungs showed decomposition. Heart and coronary
arteries were normal, except for the decomposition changes. Intima of
aorta was discolored red, due to decomposition. Stomach contained two
handfuls of vegetable food particles including cooked rice in a
semifluid medium, no unusual smell; mucosa decomposed. Uterus was
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normal in size, with its cavity empty; evidence of bilateral, old, tubal
sterilization seen. All other internal organs were normal except for the
varying stages of decomposition. Viscera and vaginal swab were
preserved.”
29. CAUSE OF DEATH: The opinion as to the cause of death,
according to PW20 is, Remya died of hanging. PW20 would further swear that
viscera and vaginal swab collected by him from the body was forwarded for
chemical examination. Exhibit P23 is prepared on the basis of chemical
examination result, which is to the effect that, alcohol was detected in the
viscera. It also states that semen and spermatozoa were not detected in the
vaginal swab and vaginal smear. He sent Exhibit P23 letter based on the report
received after chemical examination.
30. According to PW20, the hanging in this case is ante-mortem. The
body was kept in the refrigerator at 6.50 p.m. on 22.1.2010. So according to
PW20, there can be no change to the body after 6.50 p.m. on 22.1.2010.
According to him, the time of death would be 36 hours prior to 6.50 p.m. on
22.1.2010 and below 72 hours. Considering the contents of the stomach, he
deposed that the death was within a period of 6 hours after the last meal.
Assuming that the victim had her last meal at 7 p.m. on 20.1.2010, according to
PW20, she would have died before 1 a.m. on 21.1.2010.
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31. PW20 further states that the rigor mortis starts and disappears from
head downwards from 18 to 24 hours from the jaw muscles. According to him,
the last part of disappearance of rigor mortis would be in lower limbs by 24 to
36 hours. Marbling appears from 36 to 48 hours and postmortem bullae
appears from 36 to 72 hours after death, especially in the climatic conditions
prevailing in Kerala.
32. SYMPTOMS OF PARTIAL HANGING: According to PW20, he
had visited the scene of occurrence and saw the body position as seen in
Exhibit P9(b) photograph. It shows partial hanging with the right limb of the
body touching the cot and left one touching the ground. In partial suicide
hanging cases, according to him, the face will be bluish in colour. In some
cases, there would be hemorrhage to eyes. To a suggestion, he deposed that the
posture seen in Exhibit P9(b) photograph is possible, if the victim was pulled
up sufficiently high to a completely hanging posture for one or two minutes,
without her feet touching the ground and then due to some loosened tying, the
body comes down and touches the ground.
33. According to PW20, usually in partial hanging cases, the face will
turn blue. In the instant case, the face of the victim was pale. Therefore, he
clarified that partial hanging and pale face cannot go together. The above
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circumstance is another indicator that this is a case of ante-mortem hanging. In
other words, she might have died before her feet touched the ground.
34. SYMPTOMS OF SUICIDE ALSO: According to PW20, he
noticed the features of suicidal as well as homicidal hanging in this case.
According to him, most of the partial hangings are suicidal, especially in
females. They cannot climb up to more heights and jump down. So, according
to him, in such cases, some part of the body would touch the ground. Pw20
would further swear that, in this case, if the victim stands on the cot, the
suspension point can be accessed by her, as the roof of the room was at low
level and the victim was a tall girl. According to him, it was on the basis of
these two points that he has not ruled out the possibility of suicide. Further
according to him, there will be suicidal impulse for committing suicide and if
the mental status is not normal, then such impulse would give way and the
person can commit suicide.
35. NUDITY AND SUICIDE: PW20 is an experienced Police Surgeon
having more than 33 years experience in the field, at the time of examination.
He would swear that, normally Indian women hide their nudity, when they
commit suicide. In the instant case, except that there was a loin cloth, the
victim was nude. According to PW20, the place of occurrence being the heart
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of the town, with plenty of people going around, no girl would normally hang
herself in a nude state as seen in Exhibit P9(b) photograph. He further deposed
that even in an extremely depressed state, normally no female would suicide
being nude, unless she is mentally insane. During re-examination, PW20
deposed that he had 33 years of experience in the field and that he used to
attend at least 30 hanging cases in a month and also that he had never seen a
women who had committed suicide by being nude. During further cross
examination, he deposed that in Modi’s Book on Medical Jurisprudence, it is
stated that Indian women, while committing suicide, will not expose their
private parts and also that it does not state about existence of exceptions.
However, according to him, in modern books, there is no such statement.
36. In the decision in Kodali Puranchandra Rao & Anr vs The
Public Prosecutor, Andhra Pradesh, AIR 1975 SC 1925, the Hon’ble
Supreme Court also observed that, “Ordinarily, no Indian woman would
commit suicide by jumping into the sea by getting into such a near-nude
condition and thereby expose her body to the risk of post-mortem indignity.”
37. The fact that the deceased was found hanging in nude form is to be
evaluated in the above context. The above circumstance was strongly relied
upon by the learned Special Public Prosecutor to show that it is a case of
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homicide and not a case of suicide. We are in respectful agreement with the
statement of the learned Special Public Prosecutor as well as the evidence of
PW20 that no woman will chose to commit suicide in nudity. The fact that in
Ext. P9 series photographs, the deceased was found hanging nude, is a clear
indication against suicide and a sign of homicide.
38. NO SIGNS OF VIOLENCE: During the cross examination, PW20
deposed that in this case, there were no marks of violence, on the body of the
deceased. The only antemortem injury noticed by PW20 on the body of the
deceased was an abrasion 2×1 cm under the chin, more towards the right side.
At the place of occurrence also there was absolutely no signs of any kind of use
of force or violence.
39. PW28 the Sub Inspector, Payyannur Police Station visited the place
of occurrence in room No.204 of Everest Lodge on 22.1.2010, examined the
body of Remya and prepared Exhibit P12 inquest report. In the said room, he
had noticed several articles including dress belonging to the deceased and her
child, food materials and also a pair of chappals and an undergarment of a male
person. PW28 identified those items as MOs 2 to 27, which are green Churidar
top (MO2), white churidar pant (MO3), churidar top (MO4), baby frock
(MO5), Maxi (MO4), white churidar shawl (MO7), Orange Churidar shawl
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(MO8), Orange churidar pant (MO9), lungi (MO10), 3 plastic bottles (MO11),
750 ml liquor bottle containing 100 ml. liquor (MO12), a glass (MO13),
chocolate envelope (MO14), a cover of dates (MO15), ladies chappal (MO16),
plastic cover containing porotta (MO17), brassiere MO(18), cotton towel
(MO19), ladies panties (MO20), a pair of socks (MO21), baby shaddy (MO22),
stayfree 2 numbers (MO23), gents underwear (MO24), Hawaii chappal
(MO25), towel (MO26), and cellotape 2 numbers (MO27).
40. PRESENCE OF A MAN INSIDE THE ROOM: The evidence of
PW10 and 13, the watcher and the helper of Everest Lodge that the deceased
came along with a male person and a child in a car and occupied room No.204
also remains unchallenged. In addition to the same, presence of gents
underwear (MO24) and Hawaii chappal (MO25), in the above room also points
to the fact that there was a male person also in the said room, along with the
deceased and her 1½ year old girl child. The contention taken by the appellants
is only to the effect that the person who accompanied the deceased and the
child to the above room is not the 1 st accused. From the evidence of PW13, it
can also be seen that, the male person who accompanied the deceased to
Everest Lodge has made Ext. P13(a) entry in Exhibit P13 register. In the said
register, the name, address and phone number given by him is, ‘Shyamkumar,
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Amban House, P.O. Kattampalli, Mob. No.9947519551′. In the said register, he
has also written that the number of inmates are three and that they belong to a
family. The time of arrival shown is 3.55 p.m. on 20.1.2010.
41. SUICIDE RULED OUT: PW20 did not rule out the possibility of
suicide on two grounds. One of the grounds is that the point of suspension is
accessible to the victim, provided, she stands on the cot. The other reason stated
by PW20 is that the victim in this case is tall. As per Ext. P22 postmortem
certificate, the height of the victim is 168 cm. As per Ext. P12 inquest report,
the height of the cot is 39 cm and the height of the bed placed over the cot is 10
cm. Therefore, the total height up to which the victim could access if she stands
on the top of the cot is 207 cm (168 + 39). Even if the height of the bed also is
taken into consideration, the total height that could be accessed by her is 217
cm (168 + 39 +10). In this context, it is to be noted that, since the bed is soft, a
person standing on the bed will not get access for the entire width of the bed.
Therefore, the accessible height, which a person having a height of 168 cm
standing on the cot with bed, will be around 210-212 cm.
42. As per the inquest report, the total height of the point of
suspension from the floor is 250 cm. Since the maximum accessible height of
the victim is 210-212 cm only, even if the cot and bed are placed just below the
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point of suspension, she has to cover a further 38-40 cm, by stretching her
hands, to reach the point of suspension. It appears that, PW20 came to the
conclusion that the point of suspension is accessible to the deceased, if she
stretches her hand fully, after climbing over the cot with bed, placed exactly
below the hook.
43. COTS ARE FOUND AWAY FROM THE POINT OF
SUSPENSION: It is very important to note that, in this case, the cots present in
the room are not positioned below the point of suspension. From Ext. P9 series
photographs it can be seen that the body of the deceased hangs at a place, while
both the cots are seen far away from the point of suspension. As per Ext. P12
inquest report, the body was found hanging from a hook in the ceiling on the
eastern side of the room. One of the cots situates on its north and the other one
is on its south. As per the inquest report, there is a distance of 137 cm between
the above two cots on the eastern side and 45 cm on the western end. Therefore,
it can be seen that, the cot on the northern side of the body situates 50 cm away
from the body, while the cot on the southern side of the body situates 87 cm
away from the body. There is no other accessible furniture also, below the point
of suspension. Since the body of the deceased stands suspended from the hook
which is placed near the wall on the eastern end of the room, where there is a
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distance of 137 cm between the two cots, it is evident that, from the top of
those cots, from the place the said cots are found, the point of suspension will
not be accessible to the deceased.
44. The explanation offered by the learned Senior counsel is that, the
victim might have climbed over the cot, after placing the cot below the hook
and that, after tying the knots on the hook as well as on the neck she might have
kicked the cot away, so that she could jump down for hanging. However, the
said argument does not appear to be sound or reasonable. A person while
standing on the cot will not be able to move it to such an extent. If she tries to
move the cot after jumping down for hanging, only her body will move away
from the cot and not vice versa. Therefore, the only possibility is, there was
intervention of somebody else in the hanging of the deceased. Since both the
cots are positioned far away from the point of suspension, and there are no
other articles present in the room to enable the deceased to have access to the
point of suspension, the contention that the victim might have climbed over the
cot to have access to the point of suspension cannot be believed. In the instant
case, since both the cots are positioned far away from the point of suspension,
the possibility of suicide can be ruled out.
45. WHETHER CONTENTS OF INQUEST REPORT RELIABLE?:
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The learned senior counsel would argue that the contents of Ext. P12 inquest
report cannot be relied upon, as the same was not reproduced in the deposition
of PW28, who prepared the same. It is true that when PW28 was examined, he
has only deposed that the report was prepared by him and that it bears his
signature. The contents of the report in respect of what he had personally seen
and perceived were not reproduced in his deposition, in detail. The learned
Special Public Prosecutor would argue that the portion of the inquest report
which relates to the record of what the investigating officer had seen with his
own eyes can be relied upon, even though, it was not repeated in his oral
evidence. In order to substantiate the above argument, the learned Public
Prosecutor has relied upon the decision of a Division Bench of this Court in
Pookunju v. State of Kerala, 1993 KHC 148 as well as the decision of the
Hon’ble Supreme Court in Rameshwar Dayal and Others v. State of U.P.,
(1978) 2 SCC 518.
46. In the decision in Rameshwar Dayal (supra), the Hon’ble
Supreme Court while rejecting the argument that the statements made in the
inquest report were inadmissible in evidence being hit by Section 162 Cr.P.C,
held in paragraph 35 that :
“……In the first place, the statement made by the Investigating
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Officer in Ex.Ka-10 is not a statement made by any witness before the
police during investigation but it is a record of what the Investigating
Officer himself observed and found. Such an evidence is the direct or
the primary evidence in the case and is in the eye of law the best
evidence. Unless the record is proved to be suspect and unreliable
perfunctory or dishonest, there is no reason to disbelieve such a
statement in the inquest report. ”
47. In the decision in Pookunju (supra) in paragraph 18, the Division
Bench held that :
“Inquest report would, in the ordinary course consist of three
types of recitals. First category consists of the statements made by
persons interrogated by the investigating officer during inquest.
Second category consists of the opinions of the persons in whose
presence the inquest was held. Third is the record of what the
investigating officer had seen with his own eyes. The first category
has no evidenciary value. Second category cannot be used as
evidence on account of more than one inhibition, main among them is
the bar contained in S.162 of the Code. But the third category is not
subject to any such legal disability. We have not come across any
legal hurdle against accepting them as admissible evidence. If the
inquest report is proved under law, the recitals falling under the third
category mentioned above are relevant under S.35 of the Evidence
Act and are admissible in evidence even if the officer fails to repeat
them in his oral evidence.
48. As per the above decision, even if the Officer who prepared the
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inquest report, fails to repeat the recitals falling under the third category, which
the Officer had seen with his own eyes, those recitals are relevant under Section
35 of the Evidence Act. In the above circumstance, there is nothing wrong in
relying upon that part of Ext. P12 which PW28 personally seen or observed,
while preparing the same.
49. IS IT POSSIBLE FOR ONE PERSON TO HANG ANOTHER?: It
is common knowledge that, one person could not easily hang another living
person, especially by suspending from a hook placed on the ceiling of a room,
as in this case. If the victim is capable of resisting, it will be more difficult for
the perpetrator to hang the victim. According to PW20, if the victim is
intoxicated or made unconscious, she can be suspended by another person.
Though it is revealed that the victim had consumed alcohol, he could not state
whether it was sufficient to intoxicate her. Since the body was decomposed,
blood sample was not available. Urine was also absent as her bladder was
empty. He clarified that for the same quantity and volume of alcohol, females
get intoxicated much earlier than males.
50. STAGE OF INTOXICATION: According to PW20, average
percentage for intoxication for a person is 150mg alcohol per 100 ml. of blood.
He also made it clear that, it may vary from person to person, from 80 mg. to
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200 mg. per 100 ml blood. A person who is not used to alcohol may get
intoxicated when the percentage of alcohol in his blood reaches 80 mg. But
persons who are used to alcohol, may require up to 200 mg per 100 ml blood.
According to him, for 1 ounce of brandy, there would be an increase of 25 mg
percentage of alcohol in the blood.
51. CHANCES OF REMYA GETTING INTOXICATED: In Ext. P52
chemical examiner’s report, the percentage of alcohol present in the blood of
the deceased was not quantified. At the same time, it is revealed that there was
smell of alcohol in the viscera of the deceased. In the above circumstances, the
learned counsel would argue that in this case there is no evidence to prove that
the deceased was in an intoxicated or unconscious state and therefore, the
allegation of hanging by the accused will not stand. It is true that in this case
there is no direct evidence to prove that the deceased was in intoxicated or
unconscious state, before she was hanged. Since death of Remya is a homicide
and she could have been hanged only if she was intoxicated or unconscious,
presence of liquor bottle in the room and ethyl alcohol in her viscera persuades
us to presume that she became intoxicated before she was hanged.
52. CHILD PRESENT IN THE ROOM WAS SECRETLY SENT TO
PW1: Along with the deceased, her 1½ year old daughter born to the 1st accused
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was also present in the room, at the time of the alleged incident. From the
room, food articles, liquor, sweets, dry fruits etc., were recovered. From those
articles, it can be seen that the deceased along with the child and the male
person who was present along with them, after occupying that room in the
evening on 20th January, 2010, had food and liquor, before the untoward
incident occurred. The fact that at about 12.30 a.m. on 21.1.2010, the 1½ year
old daughter of the deceased and the 1 st accused was safely sent back to her
parents by somebody, is not disputed. Nobody has seen anyone dropping the
child at the courtyard of the house of the parents of the deceased. From the
evidence of PWs1 to 3 it is revealed that at about 12.30 a.m. on 21.1.2010, the
child was found crying at their courtyard.
53. From the evidence of PWs10 and 13, it is revealed that a child was
also present along with the deceased in room No.204 when she came to the
lodge on 20.1.2010 along with the male person. There is no dispute that it was
the younger girl child of the deceased and 1 st accused. Since the said child who
was present in room No.204 was safely dropped by somebody at the parental
home of the deceased at about 12.30 in the same night, it is evident that the
male person who was present in room No.204 along with the deceased was one
who was very much concerned about the safety and well-being of the child. If
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the person who was present in room No.204 along with the deceased was a
stranger having no interest in the safety and well-being of the child, he would
never have dropped the child at the courtyard of the parental home of the
deceased. Therefore, as argued by the learned Special Public Prosecutor, it is a
circumstance leading to the conclusion that the person who was present along
with the deceased in room No.204 is the father of the child, namely the 1 st
accused.
54. ENQUIRY ABOUT THE CHILD: PWs1 and 3 deposed that a few
minutes after the younger child of the deceased was found in the courtyard of
their house, the 1st accused telephoned them in their land phone and asked
whether they received the child. From the above evidence of PWs1 and 3, it
can be seen that after dropping the child in the courtyard of the house of PW1
and 3, the 1st accused wanted to ensure that the child reached the safe hands of
PW1 and 3. The above evidence of PWs 1 and 3 to the effect that immediately
after the child was dropped at the courtyard of their house, the 1 st accused
contacted them over the land phone and asked whether they received the child,
was not challenged during the cross-examination. In the above circumstances,
the evidence of PWs1 and 3 that after the child was found at the courtyard of
their house, the 1st accused contacted them over land phone and enquired about
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the child, is liable to be accepted. The above evidence of PWs 1 and 3 is
another circumstance which substantiates the involvement of the 1 st accused in
the commission of the offence.
55. REMYA DIED BEFORE THE CHILD WAS SENT TO PW1:
According to PW20, if it is assumed that the last meal of Remya was at 7.00
p.m., the time of her death was around 1.00 a.m. on 21.1.2010. Since the child,
who was present in room number 204 of Everest lodge along with the deceased
and 1st accused during the night on 20.1.2010, was found at the courtyard of the
residence of PW1 at 12.30 a.m. on 21.1.2010, it is evident that it was the 1st
accused who had taken the child from Everest lodge and dropped her there. It
appears that, immediately thereafter, the 1 st accused called PW1 and ensured
that the child was taken care of by PW1. The reason why the 1 st accused sent
back the child alone to the residence of PW1 during that odd hours assumes
much significance. It can only be because, at the time when the 1 st accused
dropped the child at the residence of PW1, he was aware that Remya was no
more. The residence of PW1 is at Kattampally, whereas Everest lodge is at
Payyannur. Therefore, it can be further presumed that the 1 st accused left the
lodge, with the child, after the death of Remya. If so, Remya might have died a
little before 1 a.m., as opined by PW20. It is possible because, PW20 assumed
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that Remya had her last meal at 7 p.m. to arrive at the conclusion that the time
of death may be around 1 a.m. on 21.1.2010.
56. WRONG ADDRESS GIVEN BY A1 IN LODGE: Ext. P13 is the
register maintained by CW1 in the Everest lodge. According to PW13, he saw
the 1st accused making Ext. P13(a) entries relating to hiring room No.204, in
that register. Since Ext. P13(a) entry made by the 1 st accused in Ext. P13
register maintained by CW1 in the ordinary course of business, the said entry is
relevant in the light of Section 32 of the Evidence Act. In Ext. P13(a), the
address given by the 1st accused is Syamkumar, Amban House, Kattampalli,
Kannur. Admittedly, it is not the correct address of the 1 st accused. It was
argued by the learned Special Public Prosecutor that the 1 st accused has
deliberately given such a false address in the lodge, in order to hide his identity
and also that at the very beginning he had the intention to murder his wife. We
have already seen that the above room was occupied by the 1 st accused along
with the deceased and their minor child. There was absolutely no justification
for the 1st accused to give such a false address while taking room number 204 in
Everest lodge, especially when he was there along with his wife and minor
daughter. The above conduct of the 1st accused in giving false address in the
lodge can only be with the deliberate intention to hide his identity. It also brings
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to light the guilty mind of the 1st accused, which was in existence, even at the
time when he reached the lodge. The conduct of the 1 st accused in giving false
address in the lodge immediately before the commission of the offence is also
relevant, under section 8 of the Evidence Act.
57. ARREST OF A1 FROM DUBAI AND RECOVERY OF MO1:
PW31 was the Circle Inspector, Payyannur, who along with PW30 went to
Dubai airport on 7.1.2014 and arrested the 1st accused. He would swear that on
7.1.2014, he along with PW30 reached Dubai airport and at the airport, Dubai
police officer, Shaheed Shameer handed over the 1 st accused to him.
Accordingly, he arrested the 1st accused at the airport and searched his body and
prepared Ext. P39 seizure mahazar. At the time of search, MOs 28 to 34 items
were seized in addition to MO1 thali from his purse. PWs1 and 2 identified
MO1 as the Thali that belonged to the deceased Remya. We do not find any
grounds to disbelieve the evidence of PWs1 and 2 that MO1 was the Thali of
the deceased. The 1st accused has not offered any explanation for the presence
of MO1 thali in his purse, when his body was searched by PW31, on 7.1.2014.
58. EVIDENCE OF PW14 AND PW15: PW14 is a car mechanic who
is running a shop by name ‘S.Dot’ at Thottada, since the year 2006. Before
opening the above workshop, he was working as mechanic in ‘Shaji Motors’. He
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would swear that while he was working in ‘Shaji Motors’, the 1st accused used
to come in that workshop for repairing his car. According to him, the 1st accused
again came there and met him, once for consulting him for purchasing a car and
on another occasion for taking a car on ‘rent a car’ basis, saying that his car met
with an accident. He would further depose that three days before the news
regarding the death of the deceased came out, the 1 st accused came to his
workshop in an Alto car, along with a lady and a child, in search of a building
on rental basis. Since there was no such building within his reach, he contacted
his brother PW15, in the mobile phone of the 1st accused. Accordingly, PW15
came there and he along with the 1st accused discussed about taking a building
on rent. He further claimed that, at that time, the 1st accused introduced the lady
as well as the child present in the car as his wife and child.
59. PW15 also adduced evidence almost in tune with the evidence of
PW14. He also claimed that he had seen the lady and child in the Alto car in
which the 1st accused came in the workshop of PW14 and also that the 1 st
accused introduced that lady as his wife. However, in the 161 Cr.P.C statement
given by PWs 14 and 15, there is no statement to the effect that the 1 st accused
introduced the lady present inside the car as his wife. Similarly, in the evidence
of PW14, regarding the period in which he worked in Shaji Motors, there was
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an insignificant contradiction, which was marked as Ext. D5. However, with
respect to the reaming evidence of PWs14 and 15 that on 19.1.2010, the
accused came in an Alto car along with a lady and a child in the workshop of
PW14, remains unchallenged. Therefore, from the above evidence of PWs14
and 15 it can be safely concluded that on 19.1.2010 the 1 st accused travelled in
an Alto car, along with a lady and a child.
60. EVIDENCE OF PW10 AND PW13: Much reliance was placed by
the learned Special Public Prosecutor in the evidence of PWs 10 and 13 to
prove that it was the 1 st accused who stayed in room No.204 along with the
deceased as well as the child. PW10 is the Security of Everest lodge,
Payyannur. He would swear that on 20.1.2010 at about 3.30 p.m., the 1 st
accused came in a white car, with a lady and a child, in search of a room. He
asked whether any rooms are available in that lodge. He told the 1 st accused
that, in order to know about the vacancy of room he has to contact the Manager.
At that time, the 1st accused asked whether he could park his car in front of the
lodge. He told the 1st accused that he could park his car there only for ten
minutes and thereafter, it is to be parked in the nearby Gandhi park. After going
inside the lodge along with the lady and child, the 1 st accused came out, took
his car from there for parking it outside. On 22.1.2010 the body of the above
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lady was found hanging inside the above room. At the time of evidence, PW10
correctly identified the 1st accused as the person who came to Everest lodge and
stayed in room No.204 along with the deceased and the child.
61. During the cross-examination, PW10 clarified that he had no prior
acquaintance with the 1st accused. In the above circumstance, the learned Senior
counsel would argue that in the absence of any test identification parade, the
identification made by PW10 for the first time before the Court after the
incident in the year 2010 is not reliable and trustworthy. On the other hand, the
learned Special Public Prosecutor would argue that there was enough time for
PW10 to see and remember the 1st accused and hence, according to her, there is
no ground for discarding the identification made by PW10 before the court.
62. The law is well settled that, if the witnesses had sufficient
opportunity to see and know the features of the accused, failure of the
investigating agency in conducting test identification parade is not fatal
(Manikuttan @ Sajay and others v. State of Kerala, 2012 KHC 699). From
the evidence of PW10, it is revealed that he had sufficient opportunity to see
and know the features of the accused, and hence, in the facts of this case, failure
in conducting test identification parade is not fatal.
63. WHY NO T.I. PARADE?: When PW31 was asked as to why no
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test identification parade was conducted, he clarified that immediately after the
arrest of the 1st accused, his photographs appeared in dailies and it was in the
above context, no test identification parade was conducted. The above
explanation offered by PW31 for not conducting the test identification parade
of the 1st accused, is a reasonable and believable one.
64. During the cross-examination, PW10 deposed that after the
accused was arrested, the police brought the accused before him and at that
time he identified the 1st accused. He would also depose that, before bringing
the accused, the police showed him the photograph of the 1 st accused and got it
identified by him. According to him, the said photograph was shown to him by
the police about three years after the incident.
65. EFFECT OF SHOWING PHOTOGRAPH OF A1 TO
WITNESSES: An argument was advanced by the learned Senior counsel that
during the course of the investigation, the Investigating Officer has shown the
photograph of the 1st accused to PWs 10 and 13 and therefore, subsequent
identification of the 1st accused made by PWs13 and 14 before the Court,
cannot be relied upon. It is to be noted that the deceased was found hanging in
room No.204 of Everest lodge on 22.1.2010. On the very same day, the 1st
accused absconded to Dubai from Mangalore airport. Thereafter, the
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prosecution did not get the presence of the 1 st accused, till he was finally
extradited from Dubai and brought to India on 7.1.2014. In the meantime, he
was inaccessible to the prosecution. In the above circumstance, the only option
available to the prosecution was to show his photograph to the witnesses to
check whether the investigation is in the right direction. In the above
circumstances, we do not find anything wrong on the part of the investigating
agency in showing the photograph of the 1st accused to PWs10 and 13 to
ascertain whether he was the person who was staying along with the deceased
in room No.204 of Everest lodge on 20.1.2010.
66. In the decision in Gopalakrishnan v. Sadanand Naik, 2004 KHC
1195, the Hon’ble Apex Court also held that showing photographs of the
accused by the investigating agency to the witnesses to ensure whether the
investigation is going on the correct direction, is permissible. At the same time
the Court further warns that, if the suspect is available for identification or for
video identification, the photograph shall never be shown to the witness in advance.
In paragraph 7, the Apex Court held as follows:-
“7. There are no statutory guidelines in the matter of
showing photographs to the witnesses during the stage of
investigation. But nevertheless, the police is entitled to show
photographs to confirm whether the investigation is going on in the
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right direction. But in the instant case, it appears that the
investigating officer procured the album containing the photographs
with the names written underneath and showed this album to the eye
witnesses and recorded their statements under S.161 Cr. P.C. The
procedure adopted by the police is not justified under law as it will
affect fair and proper investigation and may sometimes lead to a
situation where wrong persons are identified as assailants. During
the course of the investigation, if the witness had given the
identifying features of the assailants, the same could be confirmed
by the investigating officer by showing the photographs of the
suspect and the investigating officer shall not first show a single
photograph but should show more than one photograph of the same
person, if available. If the suspect is available for identification or
for video identification, the photograph shall never be shown to the
witness in advance.”
67. In the instant case, the 1 st accused absconded immediately after the
commission of the offence, to Dubai and he was not available for identification, till he
was extradited to India. Therefore, the conduct of the Investigating Officer in showing
his photograph to the witnesses to ensure that the investigation is going on in the right
direction cannot be found fault with.
68. PW13 was working as helper in Everest lodge. He would swear
that on 20.1.2010 at about 3.30 p.m. the 1st accused came there in search of a
room. At first, he wanted to see the room. Accordingly, he had taken the 1 st
accused to room No.204, and showed the said room to him. After keeping his
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wife at the reception, he went out for parking his car. Thereafter the 1 st accused
came back and made necessary entries in the ledger maintained in the office, as
Shyamkumar. He identified Ext. P13 as the above register and Ext. P13(a) as
the relevant entry made by the 1st accused in that register. During the cross-
examination PW13 admitted that at the time of writing he had not seen it’s
contents, as it was made in the presence of the Manager, CW1. However, he
had seen the 1st accused writing that entry and after the incident he verified its
contents. PW13 being only a helper, his evidence in that respect looks quite
natural and believable. Further according to PW13, thereafter the 1 st accused
along with the deceased and the child stayed in room No.204. Then, on
22.1.2010 the body of that lady was found hanging from a hook in the ceiling
of that room. Thereafter, the police came to the lodge and seized Ext. P13
register. He also admitted his signature in Ext. P14 mahazar prepared in that
respect as well as in Ext. P11 scene mahazar. Before the court, PW13 correctly
identified the 1st accused as the person who came along with the deceased and
resided in room No.204 in the said lodge.
69. During the cross-examination, PW13 clarified that two days after
the alleged incident, the police questioned him and showed the photograph of
the 1st accused and at that time, he identified the 1st accused by seeing the
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photograph. He also deposed that, thereafter the photograph of the 1st accused
came in newspapers also. It is true that during the cross-examination, PW13
deposed that he had no prior acquaintance with the 1 st accused and that for the
first time he was seeing him on 20.1.2010 when he came in search of a room in
that lodge. However, the evidence of PW13 that, two days after the incident,
PW28, the Sub Inspector came there and shown the photograph of the 1 st
accused to him and he identified the 1st accused in that photograph, remains
unchallenged. Since the 1st accused absconded immediately after the incident,
there was no other option for the police, to ensure that the investigation was
going on in the right direction. He also deposed that after the 1 st accused was
arrested, the Investigating Officer brought him to the lodge and at that time, he
again identified the 1st accused. In the above circumstances, the identification of
the 1st accused before the Court by PW13 could not be disbelieved. Since PW13
had seen the photograph of the 1st accused two days after the incident and
identified the 1st accused in that photograph and thereafter when the 1 st accused
was arrested and brought before the lodge, again he identified the 1 st accused,
the identification of the 1st accused by PW13 before the Court can only be
believed. Therefore, from the evidence of PW13, it can be safely concluded that
it was the 1st accused who stayed in room No.204 along with the deceased and
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her child on 20.1.2010.
70. FAILURE TO SUPPLY STATEMENTS RECORDED BY PW28:
The learned Senior counsel would argue that PW28, the Sub Inspector,
recorded the 161 Cr.P.C statement of PWs1 to 4 also, in addition to that of
PWs10 and 13 and that failure of the prosecution to supply the copies of those
statements, seriously prejudiced the appellant. Therefore, it was argued that, the
evidence of PWs10 and 13 could not be relied upon. He has relied upon the
decision of a Single Bench of this Court in State of Kerala v. Raghavan Alias
Maniyan, 1974 KHC 48 in support of the above argument.
71. In the above decision, the revision petitioners filed an application
before the trial court for issuing the copy of the statements recorded from one
of the witnesses by the Circle Inspector of police during the course of
investigation. The application was opposed by the State on the ground that the
prosecution did not propose to rely on that statements and contended that
therefore, the accused were not entitled to get a copy of the same. However, the
learned Sessions Judge allowed the application and the said order was upheld
by the learned Single Judge.
72. During the examination of PWs 28 and 39, it is revealed that
PW28 has recorded the statements of only PWs1, 3 and 4 and not that of PWs2,
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10 and 13. When the learned Senior counsel asserted that PW28 has recorded
the statements of PWs2, 10 and 13 also, we have decided to call for the case
diary (CD) and to peruse the same by invoking the power under Section 172
Cr.P.C. On perusal of the above CD, it is revealed that PW28 has recorded the
161 Cr.P.C statement of PWs1, 3 and 4 alone and not recorded the statements of
PWs2, 10 and 13.
73. It is true that the prosecution has not supplied the copy of the
statements of PWs1, 3 and 4 recorded by PW28, to the accused persons. The
explanation given by PWs28 and 39 for not furnishing copies of those
statements to the accused and for not producing the same along with the final
report is that the statement given by those witnesses to PW28 was similar to
that given to PW39.
74. On perusal of the statements given by those witnesses to PW28
along with that given by them to PW39, it is seen that the statement given by
them to PW39 is slightly different from the one given to PW28. As noticed
above, originally, the crime was registered under Section 174 Cr.P.C as a case
of unnatural death and only after the elapse of about one month, the offence
under Section 302 IPC was added in the crime. Thereafter, the investigation of
the case was taken over by PW39. As deposed by PWs28 and 39, the same
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statement given by PWs 1, 3 and 4 to PWs 28 was given to PW39 also.
However, there is one discrepancy in them. In the statement given by PW4 to
PW28, he claimed that at about 8 p.m. on 16.1.2010 the 1 st accused came in a
white car, went inside the house of Remya and about 15 minutes thereafter he
went along with Remya and child in that car and that, at about 10 p.m. when
PWs1 and 3 came, he told them as above. PWs1 and 3 in their statement given
to PW28 also stated that, PW4 told them that, the 1 st accused came in a car, and
took Remya and the child along with him in that car. In the statement given to
PW39, PW4 states only to the effect that he saw a slate colour car in front of his
house and not seen anybody in the car. In the statement given by PWs1 and 3
to PW39 also there was corresponding change. There are no other major
discrepancies in the statements given by PWs1,3 and 4 to PW28 and 39.
Therefore, it can be seen that it was PW4 who mislead PWs1 and 3 and that is
why there occurred such a change in the statement given by them to PW39. In
the above circumstance, we hold that the evidence of PW4 is not reliable.
However, for that reason alone, the remaining evidence of PWs1 and 3 could
not be disbelieved or discarded.
75. In the above circumstances, in the facts of this case we further hold
that the failure of the prosecution to produce the statements given by PWs1, 3
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and 4 to PW28 along with the final report and also failure to supply the copies
of those statements to the accused persons will not in any way cause prejudice
to them and as such, merely on that ground, the prosecution case could not be
thrown out.
76. When PW28 was examined before the Court, he denied the
suggestion that he has recorded the statements of PWs10 and 13. He admitted
that he had questioned PWs10 and 13, but he denied the suggestion that he had
recorded their statements. At the time of evidence, PWs10 and 13 also admitted
that they were questioned by PW28 but they have not stated that their
statements were recorded by PW28. In this context, it is also to be noted that, at
first PW28 has registered the crime under Section 174 Cr.P.C, as a case of
unnatural death only. Later on, the offence under Section 498-A IPC was
included against accused persons 1 to 3. It was about one month after the
incident, the offence under Section 302 IPC was included. Thereafter, the
investigation was taken over by PW39, the Circle Inspector Kunnamkulam, and
then he had recorded the statements of these witnesses. We have perused the
case diary and convinced that the statements of PW10 and 13 were not recorded
by PW28. Therefore, we believe the testimony of PW28 that he has not
recorded the statement of PWs10 and 13 and hold that there are no grounds to
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disbelieve the testimonies of PWs10 and 13.
77. The evidence of PW10 identifying the 1st accused as the person
who came in room No.204 and stayed there along with the deceased and the
child corroborates the evidence of PW13 in that respect. The evidence of
PWs14 and 15 that they have seen the accused along with a woman and child
on 19.1.2010 at the workshop of PW14 also corroborates the evidence of
PWs10 and 13 that it was the deceased and her child, who were travelling along
with the 1st accused in his car. In other words, from the evidence of PWs 10, 13,
14 and 15, it can be safely concluded that it was the 1 st accused who stayed
along with the deceased in room No.204 of Everest lodge on 20.1.2010. In
short, it is evident that Remya died inside room number 204 of Everest lodge,
when the 1st accused along with the child were also present in that room.
Therefore, the 1st accused owes an explanation as to how his wife died inside
the room in which he was also present.
78. NON-PRODUCTION OF CDR: As per the prosecution case, on
19th, 20th and as well as on 21st of January, 2010, the 1st accused as well as the
deceased contacted PWs1 and 3 over telephone. PW4 also deposed that when
such a call was made in the mobile phone of PW1, he came to his residence and
at that time the 1st accused introduced himself and talked about the deceased.
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However, the 1st accused stoutly denied having made any such telephone call to
PWs1 and 4. The prosecution could have proved those telephone calls by
producing the CDR of those phones. Without offering any satisfactory
explanation, the prosecution has not produced the call details of those phones.
Therefore, the evidence of PWs1, 3 and 4 regarding those telephone calls could
not be believed.
79. FINGER PRINT: At the time of evidence, it is revealed that in the
place of occurrence, there was a glass and a liquor bottle, from which a few
chance finger prints were detected by the finger print expert. It is true that those
chance prints were not sent for examination and no expert report was called for
in that respect. The above fact was highlighted by the learned Senior counsel as
a circumstance to disbelieve the prosecution case. It is true that the prosecution
has not given any satisfactory explanation for not examining those chance
finger prints with the help of a finger print expert. In a given factual situation,
the above circumstance may be relevant. However, in the instant case, from the
evidence of PWs10 and 13, the prosecution has succeeded in proving that it
was the 1st accused who stayed in room number 204 of Everest lodge along
with the deceased and their child during the night on 20.1.2010. In the above
circumstances, failure of the prosecution to examine the chance prints available
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in the glass as well as the liquor bottle seized from room No.204 is of no
consequence. Therefore, solely because of the above defective investigation,
the prosecution case could not be thrown away.
80. DEFECTIVE INVESTIGATION: The learned Special Public
Prosecutor would argue that defective investigation by itself is not a ground for
rejecting the prosecution case. In support of the above argument, the learned
Special Public Prosecutor has relied upon the decision of the Hon’ble Supreme
Court in State of Karnataka v. K.Yarappa Reddy, (1999) 8 SCC 715, and
State of W.B. v. Mir Mohammad Omar and Others, (2000) 8 SCC 382. In
Yarappa Reddy (supra) in paragraph 19, the Hon’ble Supreme Court held:
“The conclusion of the court in the case cannot be allowed
to depend solely on the probity of investigation. It is well nigh
settled that even if the investigation is illegal or even suspicious
the rest of evidence must be scrutinized independently of the
impact of it. Otherwise criminal trial will plummet to that level of
the investigating officers ruling the roost. The Court must have
predominance and pre-eminence in criminal trials over the action
taken by investigating officers. Criminal justice should not be
made the casually for the wrongs committed by the investigating
officers in the case. In other words, if the court is convinced that
the testimony of a witness to the occurrence is true the court is free
to act on it albeit investigating officer’s suspicious role in the case.
”
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81. In paragraph 41 of Mir Mohammad Omar (supra), the Apex
Court held that :-
“…..In our perception it is almost impossible to come across
a single case wherein the investigation was conducted completely
flawless or absolutely foolproof. The function of the criminal courts
should not be wasted in picking out the lapses in investigation and
by expressing unsavoury criticism against investigating officers. If
offenders are acquitted only on account of flaws or defects in
investigation, the cause of criminal justice becomes the victim.
Effort should be made by courts to see that criminal justice is
salvaged despite such defects in investigation. …”
82. From the evidence on record and from the materials found in room
number 204 in Everest lodge, it can be seen that, the 1 st accused after returning
from Dubai, took the deceased and the child in his car to various places and
thereafter, took them to room No.204 in Everest lodge in the evening on
20.1.2010. Thereafter, he brought food items like paratha, chocolate, dates etc.
and had food with his wife and child, like a responsible husband and father. He
also brought liquor and might have drank the same along with his wife. Nobody
heard any sound from that room during the night, and there was no violence,
use of force or even quarrel between the deceased and the 1st accused. Since the
child also has not made any noise, it is to be presumed that the child was
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sleeping during the night, when the untoward incident occurred. Since the
deceased was found naked, and her under garments and clothes were found
lying in the room, the only presumption that can be arrived at is that, after the
child slept, the 1st accused might have caused the deceased to drink liquor and
share some intimate moments with him. At the same time, since it is revealed
from the evidence of PW20 that human spermatozoa was not detected in the
vaginal swab and smear collected from the deceased, it is evident that there was
no physical relationship between them on that day.
83. MOTIVE: From the evidence of PWs1 to 3 it is revealed that the
1st accused had suspicion in the chastity of Remya and dispute in the paternity
of the elder son. When PW17, the Circle Inspector, Vanitha Cell, Kannur, was
examined, she deposed that on the basis of Ext. P1 complaint given by Remya,
notice was issued to the respondents who are the accused persons 1 to 3 in this
case to appear on 16.11.2009 and that on 16.11.2009 Remya as well as the
accused persons 2 and 3 appeared before her. After negotiations, they arrived at
Ext. P2(a) settlement whereby the accused persons 2 and 3 agreed to persuade
the 1st accused to pay monthly maintenance @ Rs.3000/- to Remya. As per Ext.
P2(a), the 3rd respondent therein (the 2nd accused) agreed to pay maintenance for
the current month by himself to Remya. PW17 would further swear that the
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accused persons have not complied Ext. P2(a) settlement and hence, Remya
again approached her. Accordingly, notice was again issued to the respondents
to appear before the Women’s Cell on 11.1.2010 and accordingly Remya as well
as the accused persons 2 and 3 again came to her office on 11.1.2010. Ext. P21
is the copy of the acknowledgement signed by the 3 rd accused in respect of the
notice for appearance on 11.1.2010. According to PW17, on that day,
respondents 2 and 3 disputed their liability on the ground that maintenance to
Remya is to be paid by her husband, namely the 1st accused.
84. PW17 would further swear that, when the attempt for amicable
settlement of the dispute failed, she suggested to Remya that in the above
circumstance, criminal case can be registered against the 1st accused. However,
the said suggestion was declined by Remya saying that she was very much fond
of her husband. According to PW17, thereafter, she had contacted the 1 st
accused, who was in Gulf, over telephone and at that time, he told her that he is
about to return home, that he has something to tell PW17 and also that Remya
is of bad character. In this context, it is to be noted that the above discussions
were held at the office of PW17 on 11.1.2010, while as per the evidence of
PWs34 and 35, the 1st accused returned home immediately thereafter, on
15.1.2010.
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85. EXPLANATION TO INCRIMINATING CIRCUMSTANCES:
Regarding the liability of the accused to explain the incriminating
circumstances put to him during the examination under Section 313 Cr.P.C, the
Hon’ble Supreme Court, in the decision in Dr. Sunil Clifford Daniel v. State of
Punjab, (2012 KHC 4501) held in paragraph 37 and 38 as follows:
“37. It is obligatory on the part of the accused while being
examined under S.313 Cr.P.C. to furnish some explanation with
respect to the incriminating circumstances associated with him, and
the Court must take note of such explanation even in a case of
circumstantial evidence, to decide as to whether or not, the chain of
circumstances is complete. The aforesaid judgment has been
approved and followed in Musheer Khan v. State of Madhya Pradesh,
2010 (2) SCC 748. (See also: The Transport Commissioner, A.P.,
Hyderabad & Anr. v. S. Sardar Ali and Others, AIR 1983 SC 1225).
39. This Court in State of Maharashtra v. Suresh, 2000 (1) SCC 471,
held that, when the attention of the accused is drawn to such
circumstances that inculpate him in relation to the commission of the
crime, and he fails to offer an appropriate explanation or gives a
false answer with respect to the same, the said act may be counted as
providing a missing link for completing the chain of circumstances.
We may hasten to add that we have referred to the said decision, only
to highlight the fact that the accused has not given any explanation
whatsoever, as regards the incriminating circumstances put to him
under S.313 Cr.P.C.”
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86. Though during the examination of the 1st accused under Section
313 Cr.P.C, he claimed that his date of birth is 27.6.1974 and in order to prove
the same, he had agreed to produce his SSLC book, no such certificate was
produced by him. The above conduct of the 1st accused will also go to show that
his date of birth is not 27.6.1974 as claimed, but 31.5.1975, as seen in Exts. P48
and 49 and that the answer given by him, during the examination under Section
313 Cr.P.C, to the contrary is false.
87. LAST SEEN TOGETHER: As we have already noted above, on
20.1.2010, the 1st accused along with the deceased and their minor, went to
Everest lodge, Payyannur and stayed in room number 204 therein. Thereafter,
on 22.1.2010, the deceased was found dead by hanging on a hook placed on the
ceiling and the accused as well as the child were absent in the room. Since the
deceased was found hanging from a hook inside the room where the 1 st accused
alone was present in addition to their minor child, it is the burden of the
accused to explain as to what happened to his wife and how she died. It is
something within the exclusive knowledge of the 1 st accused, which the
prosecution could not prove otherwise.
88. In the decision in Trimukh Maroti Kirkan v. State of
Maharashtra (2006 KHC 1469), regarding the application of the last seen
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theory, the Apex Court in paragraph 17 held as follows:
“Where an accused is alleged to have committed the murder of
his wife and the prosecution succeeds in leading evidence to show
that shortly before the commission of crime they were seen together
or the offence takes placed in the dwelling home where the husband
also normally resided, it has been consistently held that if the accused
does not offer any explanation how the wife received injuries or offers
an explanation which is found to be false, it is a strong circumstance
which indicates that he is responsible for commission of the crime.
…………… In Ganeshlal v. State of Maharashtra (1992) 3 SCC 106
the appellant was prosecuted for the murder of his wife which took
place inside his house. It was observed that when the death had
occurred in his custody, the appellant is under an obligation to give a
plausible explanation for the cause of her death in his statement
under Section 313 Cr.P.C. The mere denial of the prosecution case
coupled with absence of any explanation were held to be inconsistent
with the innocence of the accused, but consistent with the hypothesis
that the appellant is a prime accused in the commission of murder of
his wife. In State of U.P. v. Dr.Ravindra Prakash Mittal AIR 1992 SC
2045 the medical evidence disclosed that the wife died of
strangulation during late night hours or early morning and her body
was set on fire after sprinkling kerosene. The defence of the husband
was that wife had committed suicide by burning herself and that he
was not at home at that time. The letters written by the wife to her
relatives showed that the husband ill-treated her and their relations
were strained and further the evidence showed that both of them were
in one room in the night. It was held that the chain of circumstances
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was complete and it was the husband who committed the murder of
his wife by strangulation and accordingly this Court reversed the
judgment of the High Court acquitting the accused and convicted him
under Section 302 IPC….”
89. In the decision in Anees v. State Govt. of NCT, AIR 2024 SC
2297, with regard to the applicability of Section 106 of the Evidence Act, in
paragraph 36, the Hon’ble Supreme Court held that:
“S.106 of the Evidence Act referred to above provides that
when any fact is especially within the knowledge of any person, the
burden of proving that fact is upon him. The word “especially”
means facts that are pre-eminently or exceptionally within the
knowledge of the accused. The ordinary rule that applies to the
criminal trials that the onus lies on the prosecution to prove the guilt
of the accused is not in any way modified by the rule of facts
embodied in Section 106 of the Evidence Act. Section 106 of the
Evidence Act is an exception to Section 101 of the Evidence Act.
S.101 with its illustration (a) lays down the general rule that in a
criminal case the burden of proof is on the prosecution and S.106 is
certainly not intended to relieve it of that duty. On the contrary, it is
designed 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 and which, he can prove without difficulty
or inconvenience”.
90. In paragraph 45, the Apex Court further held that:
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“S.106 of the Evidence Act obviously refers to cases where the
guilt of the accused is established on the evidence produced by the
prosecution unless the accused is able to prove some other facts
especially within his knowledge, which would render the evidence of
the prosecution nugatory. If in such a situation, the accused offers an
explanation which may be reasonably true in the proved
circumstances, the accused gets the benefit of reasonable doubt
though he may not be able to prove beyond reasonable doubt the truth
of the explanation. But, if the accused in such a case does not give any
explanation at all or gives a false or unacceptable explanation, this by
itself is a circumstance which may well turn the scale against him…”
91. If the offence takes place inside the privacy of a house where the
assailant has all the opportunity to plan and commit the offence at the time and
circumstances of his choice, it will be extremely difficult for the prosecution to
lead evidence to establish the guilt of the accused, if the strict principle and
circumstantial evidence is insisted upon by the courts. The law does not enjoy
the duty on the prosecution to lead evidence of such character which is almost
impossible to be led or at any rate extremely difficult to be led. The duty of the
prosecution is to lead such evidence which is capable of leading, having regard
to the facts and circumstances of the case (see Trimukh Maroti Kirkan v.
State of Maharashtra (2006) 10 SCC 681).
92. In paragraph 17 in Trimukh Maroti Kirkan(supra), the Hon’ble
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Apex Court held that:
“Where an accused is alleged to have committed the murder of
his wife and the prosecution succeeds in leading evidence to show that
shortly before the commission of crime they were seen together or the
offence takes placed in the dwelling home where the husband also
normally resided, it has been consistently held that if the accused does
not offer any explanation how the wife received injuries or offers an
explanation which is found to be false, it is a strong circumstance
which indicates that he is responsible for commission of the crime.”
93. Here, the 1st accused has not only offered any explanation in that
respect, but he has even absconded from India. His stand was that he was not at
all present in India during the relevant period and that he was in UAE, which is
his place of employment, during the relevant period. As we have already noted
above, from the evidence of PWs34 and 35 and from Exts. P48 to 51, it is
revealed that the above contention taken by the 1 st accused is absolutely false.
On the other hand, from their evidence it is revealed that on 15.1.2010, the 1 st
accused arrived in India at Karipur airport and thereafter, he left India only on
22.1.2010 from Mangalore airport. He has not only suppressed his arrival in
India on 15.1.2010 and his departure from India on 22.1.2010 but also has not
even produced his passport before the Court. The reason why the 1 st accused
secretly arrived in India on 15.1.2010 and thereafter, all on a sudden, left India
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from Mangalore on 22.1.2010, the date on which the news about the death of
his wife came in public domain, assumes much significance in this context.
Since it is revealed that when the deceased breathed her last, the 1 st accused was
present along with her inside the room in Everest lodge, he is bound to explain
as to how his wife happened to die by hanging from a hook on the ceiling of
that room. We have already found that it is not a case of suicide but a homicide.
Since the accused has not offered any explanation for the death of his wife in
his presence inside room No.204, an adverse inference is liable to be drawn
against him.
94. The law of circumstantial evidence is well settled. The most
fundamental and basic decision relating to the nature, character and
essential proof required in a criminal case which rests on circumstantial
evidence alone is, Hanumant Govind, Nargundkar and Another v.
State of M.P., AIR 1952 SC 343. In the above decision, a three Judges
Bench of the Apex Court held in paragraph 10 thus:
“It is well to remember that in cases where the evidence is of a
circumstantial nature, the circumstances from which the conclusion of
guilt is to be drawn should in the first instance be fully established, and
all the facts so established should be consistent only with the hypothesis
of the guilt of the accused. Again, the circumstances should be of a
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conclusive nature and tendency and they should be such as to exclude
every hypothesis but the one proposed to be proved. In other words,
there must be a chain of evidence so far complete as not to leave any
reasonable ground for a conclusion consistent with the innocence of the
accused and it must be such as to show that within all human probability
the act must have been done by the accused.”
95. The five golden principles (styled as panchasheel) relating to
circumstantial evidence consistently followed in subsequent decisions is,
Sharad Birdhichand Sardar v. State of Maharashtra, 1984 (4) SCC
116. In the said decision, the Apex Court after analysing various decisions
including Hanumant Govind (supra), in paragraph 153 held that:
“A close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can be
said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn
should be fully established.
It may be noted here that this Court indicated that the circumstances
concerned ‘must or should’ and not ‘may be’ established. There is not
only a grammatical but a legal distinction between ‘may be proved’ and
‘must be or should be proved’ as was held by this Court in Shivaji
Sahabrao Bobade & Anr. v. State of Maharashtra where the following
observations were made:
“Certainly, it is a primary principle that the accused must be and
not merely may be guilty before a court can convict and the
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mental distance between ‘may be’ and ‘must be’ is long and
divides vague conjectures from sure conclusions.”
(2) The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say. they should not be
explainable on any other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature and
tendency.
(4) they should exclude every possible hypothesis except the one to
be proved, and
(5) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human probability
the act must have been done by the accused.”
96. From the above evidence, the prosecution has brought out the
following circumstances against the 1st accused.
a) He had suspicion in the chastity of his wife Remya and dispute in
the paternity of the elder son.
b) His matrimonial discord with Remya resulted in Ext. P1 complaint
before the Women Cell, Kannur, on 19.10.2009.
c) Ext. P2(a) settlement arrived at before the Women Cell was
violated by the accused on 11.1.2010.
d) On 15.1.2010, the 1st accused landed at Karipur airport, secretly.
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e) He picked Remya and the younger daughter from her house, in his
car, without the knowledge of her parents and other relatives.
f) In the evening on 20.1.2010, he took Remya and the child to
Everest lodge, Payyannur and stayed in room No.204.
g) In Everest lodge, he had given incorrect name and address.
h) In room No.204, Remya, had food, liquor etc., along with him.
i) On 22.1.2010, the body of Remya was found hanging from the
hook placed on the ceiling of room No.204.
j) Examination of the viscera proved presence of ethyl alcohol.
k) Remya’s body was nude, except that there was a loin cloth.
l) PW20 certified that it is a case of antemortem hanging.
m) At 12.30 a.m. on 21.1.2010, he secretly sent the child to PW1.
n) Thereafter, he called PW1 in land phone and ensured the safety of
the child.
o) On 22.1.2010, he secretly escaped to Dubai from Mangalore
Airport.
p) He deliberately suppressed his passport from being produced
before the Court.
q) His attempt to prove the defence of alibi failed.
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r) He has not offered any explanation with regard to the death of his
wife inside room No.204, in his presence.
s) On 7.1.2014, PW31 arrested him from Dubai, after extradition.
t) On his body search, MO1 thali, which was in the possession of
Remya, was seized by PW31.
u) Remya was last seen alive, along with the 1st accused.
97. The above circumstances, brought out in the evidence adduced by
the prosecution when taken together, forms a chain of evidence so complete as
not to leave any reasonable ground for the conclusion consistent with the
innocence of the accused and at the same time, beyond any reasonable doubt
shows that, in all human probability, the act of commission of the murder of his
wife Remya, must have been done by the 1st accused and not by anybody else.
98. The 1st accused hanged his loving wife to death due to suspicion,
using a shawl by suspending her from a hook on the ceiling of room No.204 in
Everest lodge. Therefore, it is evident that he had committed the aforesaid act
with the intention to cause her death, which is culpable homicide amounting to
murder punishable under Section 302 IPC. In the above circumstances, the trial
court was perfectly justified in finding the accused guilty of the offence
punishable under Sections 302 IPC and convicting him thereunder. Point No.2
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is answered accordingly.
99. POINT NO.3 – OFFENCE UNDER S.201 IPC:- In order to find
the 1st accused guilty of the offence under Section 201 IPC, the trial court has
considered the fact that room No.204 in Everest lodge was bolted from outside
and also that he had given wrong address in the lodge. It is true that in the FI
statement, CW1, the Manager of the lodge has stated that in the morning on
22.1.2010, when he walked through the verandah of the lodge, he saw that
room No.204 was locked from outside, using bolt. In the afternoon also the
room was seen bolted from outside. It was in the above context that, he
removed the bolt, opened the door and found the deceased hanging from a hook
in the ceiling. However, CW1 could not be examined in this case, as at the time
of evidence, he became incapable of giving evidence on account of his
ailments. In the above circumstance, Ext. P29 FI statement stands not proved.
The other witnesses namely PWs 10 and 13 have only hearsay knowledge in
that respect, from CW1. In short, in this case there is no reliable evidence to
prove that room No.204 in Everest lodge was locked from outside, after the
commission of the offence.
100. Section 201 of IPC relating to causing disappearance of evidence
of offence, or giving false information to screen offender states that:
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“Whoever, knowing or having reason to believe that an offence
has been committed, causes any evidence of the commission of that
offence to disappear, with the intention of screening the offender from
legal punishment, or with that intention gives any information
respecting the offence which he knows or believes to be false”
101. On a perusal of the above provision, it can be seen that in order to
attract the offence under Section 201 IPC, the prosecution has to prove that the
accused has caused disappearance of evidence of the commission of the
offence, with the intention of screening the offender from legal punishment or
with that intention gives any information respecting the offence which he
knows or believes to be false. In the instant case, it is true that in Ext. P13
register, the 1st accused had given wrong name, address and phone number.
However, the above information was furnished by the 1 st accused, before the
commission of the offence. In the above circumstances, it is to be held that
wrong information furnished by the 1st accused before CW1 will not amount to
causing disappearance of evidence with the intention of screening offender
from legal punishment or giving any information in respect of the offence
which he knows or believes to be false. In other words, in this case, the
prosecution could not succeed in proving the offence under Section 201 IPC
against the 1st accused. Therefore, the conviction of the 1 st accused under
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Section 201 IPC is liable to be set aside and he is liable to be acquitted of the
offence under Section 201. Point No.3 answered accordingly.
102. CONCLUSION: In the light of the above discussions, Crl.Appeal
755/2017 is liable to be allowed and the appellant therein namely, the 3 rd
accused is liable to be acquitted of the offence under Section 498-A IPC.
Crl.Appeal 1193/2017 is liable to be allowed in part and the appellant therein
namely, the 1st accused is liable to be acquitted of the offence under Sections
498-A and 201 IPC, while the conviction against him under Section 302 of IPC
is liable to be sustained. The trial court has granted only the minimum
punishment of imprisonment for life for the offence under Section 302 IPC in
addition to fine and as such, the punishment under Section 302 IPC is also
liable to be sustained. Point No. 4 answered accordingly.
103. In the result, Crl.Appeal 755/2017 is allowed. The appellant
therein, namely the 3rd accused is acquitted of the offence under Section 498-A
IPC, under Section 386(b)(i) of Cr.P.C. She is set at liberty, cancelling her bail
bond.
In the result, Crl.Appeal 1193/2017 is allowed in part as follows :
The conviction rendered and the sentence imposed on the appellant under
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Section 302 IPC is sustained. The appellant is acquitted of the offences under
Section 498-A and 201 IPC, under Section 386(b)(i) Cr.P.C.
Sd/-
P.B.Suresh Kumar, Judge
Sd/-
C.Pratheep Kumar, Judge
Mrcs/sou/22.11.