The evidence of the eye-witnesses when considered in
conjunction with the testimony of the doctor does not link the
appellant directly or indirectly with the actual act leading to the
unnatural death of the deceased. In absence of any persuasive
evidence to hold that at the relevant time the appellant was
present in the house, it would also be impermissible to cast any
burden on him as contemplated under Section 106 of the
Evidence Act. The consistent testimony of the appellant and his
son to the effect that after alighting from the bus on their return
from Pota, the deceased was made to accompany DW1 back
home while the appellant did go in search of labourers for works
in his compound on the next day and that thereafter till the time
DW1 had departed for his ancestral house, the appellant did not
return home, consolidates the defence plea of innocence of the
appellant.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 919 OF 2013
JOSE @ PAPPACHAN
V
THE SUB-INSPECTOR OF POLICE,
KOYILANDY & ANOTHER
Dated:OCTOBER 3, 2016.
Citation: (2016) 10 SCC 519
The appellant stands sequentially convicted by the both
the Courts below under Section 302 of the Indian Penal code
(for short, hereinafter to be referred to as “IPC”) and resultantly
sentenced to suffer imprisonment for life and also to pay fine of
Rs. 10000/-.
2. At the trial, he along with his brother Benny Joseph,
were indicted under Sections 498A/Section 302 IPC read with
Section 34 IPC for having murdered his wife Neena. The Trial
Court however acquitted both of them of the charge under
Section 498A IPC. The co-accused was also acquitted of the
other charge. To reiterate, the conviction of the appellant under
Section 302 IPC having been sustained by the High Court, he
seeks panacean intervention in the instant appeal.
3. We have heard Mr. Basant R., learned senior counsel
for the appellant and Mr. G. Prakash, learned counsel for the
respondents.
4. To appropriately outline the factual premise, apt it
would be at the threshold to present the fascicule of the rival
projections.
5. The appellant was a police constable at the time of
marriage with the deceased on 19.6.1986 as per their customary
rites whereafter they set up their matrimonial home to start with
at their family house and thereafter at the places of his postings
in service. Allegedly, he developed an extra-marital relationship
with one lady named Darly for which he used to ill-treat and
harass his wife both physically and mentally whenever she used
to express her reservations and objections to such alliance.
According to the prosecution, under the influence of the said
lady, the appellant even resigned from his job and proceeded for
Jeddah in the year 1997 where he and the said Darly lived as
husband and wife. It is alleged that in order to legalise the
relationship, the appellant plotted to eliminate the deceased
and with that end in view, returned to India on 22.8.2000. He
thereafter accompanied Neena, the deceased, for a spiritual
retreat to “Potta Divine Retreat Centre” but abruptly cut short
their stay thereat and returned home on 19.9.2000. The
accusation is that after their return on that date, sometime in
between 6.30 to 8.30 p.m., the appellant smothered the
deceased inside the room of his house, strangulated her by
using a plastic rope and then hanged her from a hook of the
roof of the work area of the house by using a saree and thus
brutally murdered her. The prosecution has imputed that in
this heinous act, the co-accused his brother, who since has been
acquitted, had assisted him.
6. The information of this incident was lodged by Mr.
Cheriyan @ Papputy with the Koonachundu Police Station
whereafter the the appellant and the co-accused, his brother
were arrested on 21.9.2000 and 15.11.2000 respectively. On
the closure of the investigation, charge-sheet was laid against
both the accused persons under Sections 498A/ 302 read with
Section 34 IPC and eventually, the case was committed for trial
to the Sessions Court, Kozhikod.
7. The accused persons denied the charge and claimed to
be tried, whereafter the prosecution examined 25 witnesses
including the doctor, who performed the post-mortemPage 4
4
examination on the dead body as well as the investigating
officer. Several documents were also proved and exhibited. The
accused persons were examined under Section 313 Cr.P.C.
They stood by their denial and refuted the correctness of the
incriminating circumstances with which they were confronted.
They also examined three witnesses in defence.
8. The Trial Court, to reiterate, on a scrutiny of the
evidence of the record and after analysing the rival contentions,
acquitted both of them of the charge under Section 498A but
held the appellant guilty of the offence of murder of his wife
Neena and convicted him under Section 302 IPC and sentenced
him as above. The co-accused was exonerated of the charge
under Section 302 IPC as well. The appellant failed to secure
his acquittal before the High Court, which by the verdict
impugned, has sustained the determination of the Trial Court.
9. Before adverting to the evidence adduced, it would be
expedient to notice the defence plea for a purposeful
appreciation thereof.
10. It is the assertion of the appellant that being
compelled by financial distress and with the consent and
approval of the deceased, he had gone to Saudi Arabia onPage 5
5
12.9.1997 in search of better pastures, after resigning from his
service from the State Police Department. He claimed that his
relationship with his wife had always remained very fond and
affectionate and that out of the wedlock, they had two sons. To
endorse this contention, he referred amongst others to the
letters written by the deceased in particular to him while he was
abroad. He maintained that he used to remit finances for the
sustenance of the deceased and the children and that on his
return to the country, he on the request of the deceased had
accompanied to a divine retreat on 16.9.2000 to Potta,
wherefrom they returned on 19.9.2000.
11. According to him, they alighted from the bus from
Potta at their destination at about 7.30 pm. when they saw their
elder son going for purchase of house hold articles. He then sent
the deceased home with his son and he went in search for
labourers to work on his property on the next day. He
mentioned that in the process, he met Mullakkara Kunhumon,
Sainaba, Jameela and Palliparambil Thankan and finalised with
them for such work. According to him, he thereafter with
Thankan went to the house of Edattankuzhi Jose and Cheriyan
@ Papputty but found that Jose was away for a meeting. HePage 6
6
thereafter proceeded towards his house and on the way was
pushed down by two persons hurriedly coming from the opposite
direction. On his hue and cry, persons from the locality rushed
to the place and searched for these two persons, but in vain. As
in the process, the co-accused, his brother suffered chest pain,
the appellant requested Joy (PW7) and Cheriyan @ Papputty
(PW1) to bring the necessary medical documents from his wife.
12. These two persons after reaching the house of the
appellant, raised alarm and on hearing the cry, he (appellant)
along with Anikkal Babu and Thankan, who were present there,
rushed to his (appellant) house whereupon they saw Neena in a
hanging posture from a hook in the roof of the work area of the
house and that Joy and Cheriyan @ Papputty were holding her
legs to lift the body upwards. The appellant thereafter took a
knife (koduval) from his kitchen and brought down the body by
snapping the saree by which the body was hanging. They then
rushed Neena to the Medical College Hospital where she was
declared to be dead. The appellant while insisting that he was
innocent, laid the blame on the relations of the deceased to
have foisted a false case against him.
13. As referred to hereinabove, the First InformationPage 7
7
Report was lodged by Cheriyan @ Papputty at 9.30 a.m. on the
next day i.e. 20.9.2000, his version being that about 10 P.M. on
19.9.2000, while Benny (co-accused and brother of the
appellant) was sitting in the tea shop of Pulluparambil Mathew
(PW6), he suffered an epileptic attack for which he along with
Mathew, on being requested by the appellant, went to his house
to secure the medical papers from Neena. It was mentioned that
when they reached the house, they found the door open with a
lantern lit inside. As on their calls, the deceased Neena did not
respond, they entered the house and found her in a hanging
position from the hook on the ceiling at the work area at the rear
side of the house and that she was struggling for life. They
having raised alarm by that sight, the appellant and his
neighbourers including Kunjumon, Regi and Thankan arrived at
the spot, whereafter the appellant cut the saree by which Neena
was hanging and took her in a jeep to a Medical College Hospital
where she was declared dead.
14. In course of the investigation, the police conducted the
inquest of the dead body and in the process also recorded the
statement of PW6 Mathew who was present. His statement, as
recorded on the date of the inquest i.e. 20.9.2000, is to thePage 8
8
effect that on 19.9.2000 at about 9 p.m., while he was preparing
to sleep, the appellant loudly called him as well as his brother
Benny to come hurriedly. When the witness reached the place
from where the appellant had shouted, he found the appellant
asking somebody to stop and also abusing someone. When
enquired, the appellant, stated to have seen two persons who
had pushed him down and had ran away. They thereafter
engaged themselves in search of the persons refereed to by the
appellant but in vain. According to the witness, the appellant’s
brother Benny started feeling sick for which Kunjumon, who
was present, was asked by the appellant to call a jeep to take
him to the hospital. The appellant simultaneously asked the
witness to go to his house and fetch the medical prescription
from his wife Neena. The witness along with PW1 Cheriyan @
Papputty then went to the house of the appellant and when
Neena did not respond to their calls, they open the door which
was not bolted and on reaching the kitchen area, they found the
deceased in a hanging position from a hook atop the kitchen
veranda by a saree, but was gasping for breath. On seeing this,
both of them loudly raised alarm and raised Neena upwards by
holding her legs. The witness further stated that by that time,Page 9
9
the appellant and others came running by hearing their cries
and the appellant brought a knife from the kitchen, cut the
saree, brought down the body and then they took Neena
thereafter in a jeep to Thalayada Hospital where the nurse there
recommended that she be taken to the Medical College Hospital,
They did so, but the doctor there declared her to be dead.
15. The version in the FIR and the version of the
informant,PW1 Cheriyan @ Papputty and PW6 Mathew, made at
the earliest point of time after the incident, to start with, appear
to be substantially consistent.
16. PW1 Cheriyan @ Papputty testified that at 9.30 p.m.
on 19.9.2000, he had gone to sleep after dinner, when he was
awakened by PW7 Joy to be told that Neena had committed
suicide. PW7, according to the witness, then was accompanied
by the appellant and PW6 Mathew. He confirmed that prior to
the date, the appellant and Neena had gone together for retreat
at Potta, leaving their children at their ancestral house. On
being questioned, the appellant divulged that they had returned
the same evening as Neena was adamant to come back.
17. The witness stated that on getting the news, he along
with those present, including the appellant, ran to his housePage 10
10
and on the way, the appellant stopped a car that was passing
and sent in it, the co-accused Benny, his brother. The appellant
thereafter sent Joy to bring a jeep. When they reached the work
area of the back of the house of the appellant, they found Neena
hanging from the hook attached to the ceiling by a saree. The
appellant brought a knife from the kitchen, cut the saree and
brought the body down with the help of others. The witness
stated that in the meantime, Joy had come with the Jeep. They
all carried Neena firstly to a private hospital where a nurse, on
being told that it was a case of suicide, advised that the patient
be taken to the Medical College Hospital. When they reached
the hospital, the doctor on examining the Neena declared her to
be brought dead.
18. The witness mentioned about the injuries above the
nose and side of the eyebrow and also swelling on the forehead
of the Neena. When the witness asked about the injuries, the
appellant told him that those might have been caused in the
process of cutting the saree to bring the body down. The
information about the incident was lodged on the next day by
him and he proved the same as Ex. P-1. The witness also
confirmed that the appellant had later married one lady namedPage 11
11
Darly and that he had been living with her thereafter.
19. In the cross-examination, this witness disclosed that
about 3/1/2 years before the incident, the appellant had
resigned from his service in the police department and had gone
to the Gulf leaving behind Neena and children in the house
built by him. He also mentioned about the ancestral house of
the father of the appellant about 200 meters away from his
house. The witness admitted as well that the co-accused Benny,
brother of the appellant, had been then suffering from epilepsy
and on the date of the incident as well, he had a bout of attack
thereof.
20. In the course of the cross-examination, this witness
was sought to be discredited by referring to his earlier
statements made in the course of the investigation. This was, as
imputed by the defence as the principal witnesses PW1
Cheriyan, PW6 Mathew and PW7 Joy had been examined twice
by the police, the last being on 22.1.2004 on the eve of
submission of the charge-sheet, with an endeavour to highlight
that the earlier statements had been tailored as desired and
suggested by the appellant. Noticeably, the time lag between the
date of the incident and that of the second recording of thePage 12
12
statement of these witnesses on 22.1.2004, is nearly four years.
21. PW6 Mathew deposed on oath that at the relevant
time, he was running a tea shop in the locality which was very
near the house where the appellant and the deceased used to
reside. According to this witness, on the date of the incident at
about 7 p.m., he had closed his shop to attend a meeting from
where he returned at about 8.30 p.m. He found present at the
shop, Jose, (nephew of the appellant) along with others. After
some time they dispersed therefrom.
22. According to the witness, later in the evening, when he
had gone to sleep, the appellant came to his house at about 9
p.m. and called him. He also called his brother Benny and
seemed to shout abuses at someone. The witness along with
Jose ran towards the appellant and by that time, they reached
the place, they found others gathered as well. The appellant
disclosed to him that while he was returning to his house, he
was pushed down by two persons on the way. The group
assembled there, then tried to search for these persons but
could not trace them. At that time, Benny, the brother of the
appellant developed chest pain and he was taken to the shop of
the witness. The appellant then requested the witness to go toPage 13
13
his ancestral house to fetch tablets for Benny whereupon he
along with Jackson did so. While passing by the front of the
house of appellant, they noticed that the lantern inside was lit
but the door was open. They did not see any movement in the
house. The witness stated that when he returned with the
tablets, the appellant enquired about the admit card and
prescription for extending treatment to Benny. On the request
of the appellant thereafter, the witness along with Joy PW7 went
to the house of the appellant and when they reached there, they
called out for Neena, but she did not respond. On this, they
entered the house and found Neena hanging from hook in the
roof of the work area at the rear end of the house. He and Joy
thereafter ran back to the shop to inform about the incident,
whereupon the appellant and PW1 accompanied them back to
the house. The appellant asked Joy PW7 to bring a jeep to take
Neena to the hospital. They then retrieved the body and took
Neena to the hospital where she was declared dead. The witness
mentioned that he had given the earlier statement as per the
instructions of the appellant and that when he was interrogated
by the Investigating Officer for the second time, he stated the
correct facts. Page 14
14
23. In the cross-examination, the witness was confronted
with the earlier statement that when he and PW6 had first seen
Neena hanging, she was struggling and that they raised her
upward and raised alarm on listening which the appellant and
others had come running. He however denied the suggestion
that he had departed from the earlier statement on being
influenced by the family members of the Neena.
24. PW7 Joy was a taxi driver at the relevant time and
had a jeep. This witness stated as well that at about 10 p.m. in
the fateful night, while he was sleeping in his house, two
persons namely; Kunjumon and Palliparambil called him and
on being asked, requested him to come with his jeep as Benny,
brother of the appellant was unwell. On this, the witness
reached the shop by PW6 Mathew with his jeep and found
Benny sitting on the bench with the support on the desk. He
met the appellant who told him that Jackson and Mathew had
gone to fetch tablets for Benny and on their return, he (Benny)
would be taken for medical treatment. The witness further
stated that when Jackson and Mathew returned with the
medicines, the appellant enquired of them about the admit card
and prescription which they stated had not been brought. OnPage 15
15
this, the appellant requested them to get those papers from his
house, whereupon the witness and PW6 proceeded towards the
house of the appellant. This witness stated that on reaching
the house of the appellant, they saw the front door thereof to be
half open but the kerosene lantern inside was alight. As Neena
did not respond to their calls, the witness and PW6 entered the
house and eventually found Neena hanging from the roof of the
service area with a saree. The witness stated that they ran back,
by seeing this to the shop of Mathew where they informed the
appellant about the incident. On hearing this, the witness, PW1
and PW6 rushed to the house of the appellant. On the way, the
appellant stopped a car and sent Benny together with Jackson
and others to the Medical College Hospital. The witness stated
that at that point of time, the appellant asked him to bring the
jeep to his house whereafter PW1, the appellant and others took
Neena in his jeep to the hospital where she was declared dead.
This witness admitted that the Investigating Officer had
recorded his statement twice. He conceded that in the earlier
statement, he disclosed that it was PW1 who had first seen
Neena in a hanging position. He added that such a statement
was made on the instruction of the appellant. Page 16
16
25. In cross-examination, this witness stated that his
first statement was recorded on 22/23.9.2000 at the Police
Station and by then the appellant had been arrested on
21.9.2000. This witness too was confronted with his earlier
statements.
26. PW20 Dr. Hitesh Sankar had conducted the
post-mortem examination on the dead body and recorded
swelling on the left side of the forehead together with dried blood
stains on the upper part of the nose. Apart from pressure
abrasion on the neck and fracture of the greater horn of hyoid
bone of the left side, he deposed about contusions and
abrasions on the forehead, eye brow, nose and jaw. He
mentioned about scalp contusions as internal injuries.
27. In his opinion, as expressed in his examination in
chief, the findings in the post mortem were consistent with
death due to strangulation followed by hanging and further that
the facial injuries were suggestive of attempted smothering. He
thereafter answered in the affirmative to various leading
questions to indicate amongst others that the linear abrasion
under the neck could be caused by applying a plastic rope as per
the material exhibit shown to him. He also responded to one ofPage 17
17
the leading queries that the fracture of thyroid bone could be
due to strangulation.
28. In his cross-examination, the witness however in
categorical terms conceded that he could not say as to whether
it was a case of suicidal or homicidal hanging. The witness
conceded that he had not noticed any blood stain on the
material exhibit i.e. plastic rope or any stretch mark thereon.
He also admitted of not noticing any fibre particle on the rope or
on the neck of the deceased. He conceded as well that there was
no contusion/laceration on the inner aspect of the lips which are
normal feature in the case of smothering. He also negatived the
presence of other attendant signs in case of death due to
asphyxia preceded by smothering. He however affirmed that the
ligature mark or the abrasion found on the neck was suggestive
of hanging. He admitted as well that hyoid and thyroid fracture
could be caused due to pull up of heightened noose moving up
during hanging. He admitted of not having mentioned any
injury of nail mark in the post-mortem certificate.
29. Apart from the fact that the nylon rope Ex.MO4 and
the broken pieces of glass bangles had been recovered and
seized from under a cot in the dining room, away from the sitePage 18
18
of hanging, the report of the chemical examiner Ex.P20 did not
disclose any blood stain on the plastic rope. Though was
indicated presence of hairs of human origin on the said rope, it
was clarified that no definite opinion could be given as to
whether the hairs belonged to a male or a female. To reiterate,
the doctor, PW20 also had affirmed that he did not notice any
blood stain on the nylon rope and instead added that neither
was there any stretch mark thereon nor did he notice any fibre
particle thereof on the neck of the deceased.
30. Though the prosecution had examined several other
witnesses, their testimony being not of any decisive relevance
would not be dilated upon. The Investigating Officer of the case,
however, in his evidence amongst others admitted that the nylon
rope and the bangle pieces were recovered from the dining room.
This also finds support from the seizure list Ex. P-4.
31. The appellant in his statement under Section 313
Cr.P.C., in reply to the incriminating circumstances laid before
him, stated that he had resigned from police service as per the
wishes of Neena and due to financial stringency and had gone
to Saudi Arabia on 12.9.1997 and had returned on 21.8.2000.
According to him, there was an abiding and affectionatePage 19
19
relationship between the couple and that they had two sons
Akhil and Nikhil. He referred to the letters written by Neena to
him while he was abroad, amongst others to demonstrate the
veracity of his statement about the warm relationship which he
shared with Neena. He also asserted to have sent money to
Neena and the children for their sustenance and also referred to
the relevant documents in endorsement thereof. He mentioned
about their visit to Potta on 16.9.2000 and their return on
19.9.2000. He narrated the defence version as adverted to
herienabove and claimed that death of Neena had occurred due
to suicide committed by her and denied the charge levelled
against him and his brother Benny. He however admitted that
after six years of the incident, on the insistence of his parents,
he had married with one lady named Anna. He alleged that the
prosecution had been launched by her in-laws who were hostile
towards him.
32. The appellant in his defence, examined his son Akhil
as DW1, who at the relevant time, had finished his studies and
was working in the production section at Fortune Hotel,
Kozhikode. He deposed on oath that during his academic years,
he resided with his mother and his younger brother namedPage 20
20
Nikhil. He stated that the appellant, his father was initially in
the police service from where he resigned and went to Gulf for
work in the year 1997 and had returned in August, 2000. He
deposed that during the time his father was away, he used to
stay with his mother and younger brother in their house at
Edattankuzhiyil. He confirmed that the relationship between
his mother and father was very cordial. He denied the
appellant's association with a lady named Darly and as a matter
of fact expressed ignorance about her. The witness admitted
that the appellant used to send money while he was away by
drafts and that he along with his mother used to go to the bank
for that purpose. He also affirmed that the appellant used to be
in touch with them through letters and phone calls. The witness
proved two letters marked Ex D4 & D4A which he admitted to
have been written by his mother to the appellant. He testified
that as well that even after the return of the appellant from the
Gulf, his dealings with the mother and vice versa were warm
and endearing.
33. This witness endorsed the fact as well that he met his
parents on 19.9.2000 at about 7.30 p.m. when they alighted
from the bus from Potta and were proceeding towards theirPage 21
21
house. He stated that at that point of time, he was also
returning home with some household articles and thus he
accompanied his mother back home while his father, the
appellant went in search of labourers for the next day work in
his compound. The witness stated that on their return, his
mother prepared snacks, whereafter she told her to carry some
articles to the ancestral house and accordingly he did so. The
witness however added that though he waited for his parents
to come to the ancestral house, they did not do so and he came
to learn about the death of his mother in the next morning.
34. In cross-examination, though this witness
categorically denied the suggestions put on behalf of the
prosecution to project him to be untruthful, he disclosed that
on the date of the incident, he found his mother to be under
some mental stress. He however, in definite terms, denied that
when he met the appellant and his mother together for the last
time, there did not appear to be any strained feelings between
them.
35. The testimony of the appellant on oath as DW2 is the
replication of the defence version as already outlined and does
not call for reiteration. He however proved the two letters datedPage 22
22
28.2.2000 and 7.6.2000 written by the deceased to him and
marked as Ex. D4 and D4A. He however mentioned that Neena
was not happy for the early return from the divine retreat and
repeated that having disembarked from the bus at 7.30 p.m., he
sent Neena with his elder son Akhil back home, while he went
in search of labourers for the next day's work. He stated that
while he was proceeding towards his house later in the evening,
two persons came from the opposite direction, whom he failed to
identify, pushed him down for which he suffered injuries on his
hand. He thereafter shouted to attract people so as to
apprehend these persons, but in vain. He referred to the illness
of his brother at that point of time and repeated the facts
pertaining to the events that occurred thereafter leading to the
discovery that Neena had hanged herself from the hook of the
ceiling of the work area of their house.
36. In cross-examination, amongst others, he admitted to
have brought down Neena by cutting the noose with the help of
other persons. He admitted as well his second marriage with
Anna @ Darly.
37. DW3 Babu stated about the search made in the
evening of the date of the incident of the persons, whoPage 23
23
according to the appellant, had pushed him down on his way to
his house. He also stated about the chest pain of Benny,
brother of the appellant while the search was in progress.
38. As the impugned judgement would disclose, the High
Court took note amongst others of the factum of second
marriage of the appellant with the lady Anna @ Darly as stated
to be proved by the evidence adduced. It also took note of the
fact that the couple had gone for the divine retreat for a week by
arranging the stay of the children at the ancestral house but
returned early. It disbelieved the testimony of DW1, the son of
the appellant, construing it to be partisan in favour of the
appellant in order to save him, in the circumstances. His
testimony was discarded as not of a prudent son otherwise
expected to be sensitive to the death of his mother. The High
Court denounced the DW1 to be untruthful, for having
expressing his ignorance about the second wife of the appellant
Anna @ Darly. It thus concluded that sans the evidence of DW1,
there is nothing on record to demonstrate that the appellant did
not accompany his wife to the house that evening, whereafter
she was not found alive.
39. Apart from the “last seen together” index, the HighPage 24
24
Court accepted the other perceived incriminating circumstances
against the appellant namely his illicit intimacy with Anna@
Darly, absence of explanation of his whereabouts after 7 P.M. till
his presence in the shop of PW6 Mathew, recovery of broken
bangles of the deceased from the dining room indicating a
struggle, nail mark found on the forehead of the appellant
suggesting resistance from the deceased and want of
satisfactory explanation as to under what circumstances the
deceased was found hanging in the house of the couple.
40. The High Court rejected the defence story of two
persons pushing the appellant down on his way to his house in
the evening and also commented on his conduct of not rushing
to the house as a prudent husband and instead arranging for
the conveyance of his brother to take him to the hospital even
after being told that his wife had been found hanging in the
house. On a consideration of the totality of the circumstances,
the High Court thus deduced that the death of Neena was
homicidal and affirmed the conviction of the appellant as
recorded by the Trial Court.
41. In this contentious backdrop, Mr. Basant has
emphatically urged that in the absence of any eye witness of thePage 25
25
occurrence and a convincing and complete chain of
circumstantial evidence unerringly attesting the guilt of the
appellant, his conviction for murder, in the teeth of the acquittal
of the co-accused Benny, his brother, is patently illegal.
Asserting that the evidence as a whole does unmistakably
demonstrate that the deceased had committed suicide, the
learned senior counsel has urged that the acquittal of the
appellant and his co-accused of the charge under Section 498A
IPC also belies the imputation of his extra-marital association
with the lady Darly as alleged by the prosecution. According to
him, the narration in the first information report authored by
PW1 and the statement of PW6 in the inquest report at the
earliest point of time though authenticate the correct state of
affairs, the attempt on the part of the investigating agency to
improve thereon by re-recording of the statements of these
witnesses along with that of PW7 was only to frame the
appellant in particular at the behest of his in-laws.
42. In any view of the matter, Mr. Basant has urged that
the interrogation of these witnesses after time lag of almost four
years and too on the eve of submission of the charge-sheet,
lays-bare the stratagem of the investigating agency to prosecutePage 26
26
him on otherwise unfounded allegations. The learned senior
counsel has insisted that not only the testimony of PW1, PW6,
PW7 and PW20, the doctor who had performed the post-mortem
examination is consistent with the innocence of the appellant,
it is apparent from the documentary evidence more particularly
the letters Ex. D4 and D4A written by the deceased to him that
there was a subsisting loving and affectionate relationship
between them till the demise of the former. He has argued that
the medical evidence having failed to convincingly prove that
the deceased had died of homicidal hanging, the seizure of the
nylon rope and broken pieces of bangles from under the cot of
the adjoining dining room pales into insignificance. It has been
urged that the evidence of the son of the appellant, who was a
major at the time of his deposition with the desired maturity of
understanding, overwhelmingly establishes his innocence, there
being no persuasive reason for the witness to lie in his favour
and against his mother.
43. According to Mr. Basant, the courts below grossly
erred in discarding his evidence being unworthy of credit,
branding him to be insensitive to the death of his mother and
pretentious in faking ignorance of the lady named Anna @ DarlyPage 27
27
and her alleged extra-marital relationship with the appellant.
The learned senior counsel has maintained that in absence of
any concrete evidence of the alleged illicit nexus between the
appellant and the lady named Anna @ Darly, his marriage with
her did not ipso facto establish the imputation. Mr. Basant has
urged that the circumstantial evidence relied upon by the
prosecution is incoherent and insufficient in form, continuity
and content and falls short of the legally prescribed standards
to return a finding of guilt on the basis thereof. Reliance has
been placed on the decisions of this Court in Sharad
Birdhichand Sarda vs. State of Maharashtra (1984)4 SCC
116 and R. Rajendran Nair vs. State of Kerala (1998) SCC
(Crl.) 254
44. In refutation, the learned counsel for the respondents
has maintained that the circumstantial evidence available on
the record does amply establish the complicity of the appellant
in the gruesome murder of the deceased, his wife by
strangulation with the aid of a nylon rope seized and then
suspending her from the roof of the work area by using a saree
as a ligature. The guilt of the appellant, according to the learned
state counsel, inter alia is unerringly deducible from hisPage 28
28
unusual conduct of not rushing back home even after being
informed of the incident and instead in arranging for a
conveyance for his brother to the hospital. Further, he did not
act as a prudent husband, even if his story of being pushed
down by two strangers is believed in not hurrying back to his
house to ensure the safety of his wife, the deceased. It has been
argued that deceased was seen alive last in the company of the
appellant when they alighted from the bus at 7.30 p.m. in the
same evening. According to the learned state counsel, the
testimony of DW1, the son of the appellant is wholly
untrustworthy, it being partisan and untruthful and in that
view of the matter, the mishap having occurred inside the house
in which the couple used to live, the appellant, in absence of any
explanation for the episode, has been rightly held to be guilty of
the offence charged by both the courts below. It has been
argued that the medical evidence fully substantiates the charge
of murder levelled against the appellant and the prosecution
having been able to prove that the motive therefor being to
eliminate the deceased in order to facilitate the consummation
of the otherwise illicit relationship of his with Anna @ Darly, no
interference with his conviction is warranted in the facts andPage 29
29
circumstances of the case. The fact that the appellant
eventually married the said lady, amply establishes the charge
as well, he urged.
45. The arguments exchanged have received our anxious
consideration cumulatively with the evidence on record.
Admittedly there is no eye-witness to the incident. The
endeavour of the prosecution, however has been to demonstrate
that after the couple had returned from Pota in the evening of
the date of the episode, they returned home and thereafter the
appellant had committed the murder of his wife Neena by first
strangulating her with the nylon rope that was recovered from
under the cot in the dining room and then had hanged her from
the hook of the roof of the service area by using a saree as a
ligature. This inference, according to the prosecution, is
inevitable from the attendant facts and circumstances. The
quality and the decisiveness of such evidence, therefore, would
be of determinative relevance.
46. Aside the aspect that PWs 1, 6 and 7 had been
examined twice by the investigating agency at the interval of
almost four years, we have been left unconvinced by the
peripheral variations in their statements so as to infer thePage 30
30
complicity of the appellant on the basis of their attempted
departure from their versions recorded at the earliest point of
time. Though these witnesses have been sought to be
discredited by the prosecution vis-a-vis their earlier statements
allegedly made at the behest of the appellant, the essence of
their testimony qua the incident and the attendant facts and
circumstances has remained the same barring a few
inconsequential inconsistencies. Noticeably, there is no reason
forthcoming for re-examining these witnesses after almost four
years and on the verge of the submission of the charge-sheet.
The plea of false implication at the instance of the inimical
members of the family of the deceased in this context thus
assumes significance.
47. Suffice it to recount that the testimony of PWs 1, 6
and 7 would evince that when the persons sent by the appellant
had reached the house of the appellant to fetch the medical
records of his brother Benny, they found the door open and
when the deceased did not respond to their call, they entered
through the door and found her in a hanging posture with
movements, whereupon they raised alarm for which the
appellant and others rushed to the place and the body of the
deceased was brought down by cutting the saree. Though the
conduct and the movements of the appellant prior thereto had
been somewhat unusual and disoriented, the same per se in our
estimate does not irrefutably establish his culpability.
48. The medical evidence as elaborated hereinabove also
does not decisively establish the case to be of homicidal hanging.
The unchallenged expositions of the doctor performing the postmortem
examination highlighting the absence of the
characteristic attributes attendant on death due to homicidal
hanging following strangulation further reinforce the possibility
of suicide. The absence of definite medical opinion about the
homicidal death of the deceased in our comprehension is a
serious set back to the prosecution.
49. The evidence of the eye-witnesses when considered in
conjunction with the testimony of the doctor does not link the
appellant directly or indirectly with the actual act leading to the
unnatural death of the deceased. In absence of any persuasive
evidence to hold that at the relevant time the appellant was
present in the house, it would also be impermissible to cast any
burden on him as contemplated under Section 106 of the
Evidence Act. The consistent testimony of the appellant and his
son to the effect that after alighting from the bus on their return
from Pota, the deceased was made to accompany DW1 back
home while the appellant did go in search of labourers for works
in his compound on the next day and that thereafter till the time
DW1 had departed for his ancestral house, the appellant did not
return home, consolidates the defence plea of innocence of the
appellant.
50. This version of the appellant and his son is in accord
with the statement made by the appellant under Section 313
Cr.P.C. as well. Though the courts below have dismissed the
testimony of DW1 as untrustworthy, he having feigned ignorance
about the lady Darly with whom his father allegedly had extra
marital affairs and was construed to be partisan towards the
appellant and insensitive to the death of his mother, we are
unable to lend our concurrence to these reasonings. This
witness at the time of his deposition was a major with the
required maturity in the life's perspectives, and in our
assessment expectedly would not have lied for the appellant, his
father, only to see him through, though knowing him to be the
real perpetrator of the crime. This is more so when the deceased
was his own mother.
51. The prosecution plea that the appellant had resigned
from the service in the police department to move out to
Jeddah/Saudi Arabia with the intention to perpetuate his illicit
association with the lady Darly thereat and that in a way he had
deserted the deceased and the children, is also not borne out
definitively by the materials on record. On the other hand, a
plain perusal of the letters Ex. D4 and Ex.D4A written by the
deceased to the appellant while he was abroad, do not reveal
anguished outbursts of a wife otherwise expected in such a
situation or any fervent insistence for early return. Instead the
contents thereof reveal narration of mundane happenings of day
to day life, emphasis on the need for his required stay thereat
for enhanced savings together with somewhat intimate feelings
expected of a married couple physically estranged by
compulsion of circumstances. The letters for the least, do not
suggest any bitterness, disappointment, frustration and
seething indignation of the deceased for the appellant being
away at Jeddah/Saudi Arabia and allegedly with the lady,
Darly. Instead there are traces of cheer for his expected return
in near future. The authenticity of these letters and also of the
records relied upon by the defence to demonstrate that the
appellant while abroad used to remit money for the sustenance
of the family, has not been impeached.
52. On an overall consideration of the evidence available
on record, it would be, in our view, wholly unsafe to hold the
appellant guilty of the charge of murder of his wife by
strangulating her with the nylon rope as seized and then
hanging her from the roof with the saree to complete the act.
The circumstantial evidence adduced by the prosecution in our
assessment falls short of the requirement in law to return a
finding of guilt against the appellant without any element of
doubt whatsoever. The fact that both the accused persons had
been exonerated of the charge of cruelty under Section 498A
IPC and that the co-accused, who allegedly had assisted the
appellant in the perpetration of the crime had been fully
acquitted by the courts below of all the charges also takes
away the wind from the sails of the prosecution.
53. It is a trite proposition of law, that suspicion however
grave, it cannot take the place of proof and that the prosecution
in order to succeed on a criminal charge cannot afford to lodge
its case in the realm of “may be true” but has to essentially
elevate it to the grade of “must be true”. In a criminal
prosecution, the court has a duty to ensure that mere
conjectures or suspicion do not take the place of legal proof and
in a situation where a reasonable doubt is entertained in the
backdrop of the evidence available, to prevent miscarriage of
justice, benefit of doubt is to be extended to the accused. Such
a doubt essentially has to be reasonable and not imaginary,
fanciful, intangible or non-existent but as entertainable by an
impartial, prudent and analytical mind, judged on the touch
stone of reason and common sense. It is also a primary
postulation in criminal jurisprudence that if two views are
possible on the evidence available, one pointing to the guilt of
the accused and the other to his innocence, the one favourable
to the accused ought to be adopted.
54. The facts as obtained in the present case present a
jigsaw puzzle in which several frames are missing to permit an
unreserved opinion of the complicity of the appellant.
55. The inalienable interface of presumption of innocence
and the burden of proof in a criminal case on the prosecution
has been succinctly expounded in the following passage from the
treatise “The Law of Evidence” fifth edition by Ian Dennis at
page 445:
“The presumption of innocence states that a person
is presumed to be innocent until proven guilty. In
one sense this simply restates in different language
the rule that the burden of proof in a criminal case is
on the prosecution to prove the defendant's guilt. As
explained above, the burden of proof rule has a
number of functions, one of which is to provide a rule
of decision for the factfinder in a situation of
uncertainty. Another function is to allocate the risk
of misdecision in criminal trials. Because the
outcome of wrongful conviction is regarded as a
significantly worse harm than wrongful acquittal the
rule is constructed so as to minimise the risk of the
former. The burden of overcoming a presumption
that the defendant is innocent therefore requires the
state to prove the defendant's guilt.”
56. The above quote thus seemingly concede a
preference to wrongful acquittal compared to the risk of
wrongful conviction. Such is the abiding jurisprudential
concern to eschew even the remotest possibility of unmerited
conviction.
57. This applies with full force particularly in fact
situations where the charge is the sought to be established by
circumstantial evidence. These enunciations are so well
entrenched that we do not wish to burden the present narration
by referring to the decisions of this Court in this regard.
58. Addressing this aspect, however, is the following
extract also from the same treatise “The Law of Evidence” fifth
edition by Ian Dennis at page 483:
“Where the case against the accused depends wholly
or partly on inferences from circumstantial evidence,
factfinders cannot logically convict unless they are
sure that inferences of guilt are the only ones that can
reasonably be drawn. If they think that there are
possible innocent explanations for circumstantial
evidence that are not “merely fanciful”, it must follow
that there is a reasonable doubt about guilt. There is
no rule, however, that judges must direct juries in
terms not to convict unless they are sure that the
evidence bears no other explanation than guilt. It is
sufficient to direct simply that the burden on the
prosecution is to satisfy the jury beyond reasonable
doubt, or so that they are sure.
The very high standard of proof required in criminal
cases minimises the risk of a wrongful conviction. It
means that someone whom, on the evidence, the
factfinder believes is “probably” guilty, or “likely” to
be guilty will be acquitted, since these judgements of
probability necessarily admit that the factfinder is
not “sure”. It is generally accepted that some at least
of these acquittals will be of persons who are in fact
guilty of the offences charged, and who would be
convicted if the standard of proof were the lower civil
standard of the balance of probabilities. Such
acquittals are the price paid for the safeguard
provided by the “beyond reasonable doubt” standard
against wrongful conviction.” Page 38
38
59. A reference in the passing however to the of quoted
decision in Sharad Birdhichand Sarda (supra) construed to be
locus classicus on the relevance and decisiveness of
circumstantial evidence as a proof of the charge of a criminal
offence would not be out of place. The relevant excerpts from
paragraph 153 of the decision is extracted herein below.
“153.(2) The facts so established should be
consistent only with the hypothesis of the guilt of the
accused...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.
* * *
(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.”
60. As recent as in Sujit Biswas vs. State of Assam
(2013) 12 SCC 406, this Court also in the contextual facts
constituting circumstantial evidence ruled that in judging the
culpability of an accused, the circumstances adduced when
collectively considered must lead to the only irresistible
conclusion that the accused alone is the perpetrator of a crime in
question and the circumstances established must be of a
conclusive nature consistent only with the hypothesis of the guilt
of the accused.
61. In Dhan Raj @ Dhand vs. State of Haryana (2014)
6 SCC 745, one of us (Hon. Ghose,J.) while dwelling on the
imperatives of circumstantial evidence ruled that the same has
to be of highest order to satisfy the test of proof in a criminal
prosecution. It was underlined that such circumstantial
evidence should establish a complete unbroken chain of events
so that only one inference of guilt of the accused would ensue by
excluding all possible hypothesis of his innocence. It was held
further that in case of circumstantial evidence, each
circumstance must be proved beyond reasonable doubt by
independent evidence excluding any chance of surmise or
conjecture.
62. Judged on the above parameters, we are of the
unhesitant opinion that the evidence adduced by the prosecution
constituting circumstantial evidence in support of the charge
does not furnish an unassailable basis to hold the appellant
guilty of the charge of murder levelled against him. The facts and
circumstances admit of a reasonable doubt in his favour.
63. The circumstances brought forth by the prosecution
do not rule out in absolute terms the hypothesis of the innocence
of the appellant. We thus consider it to be wholly unsafe to
maintain his conviction as recorded by the courts below. We are
therefore inclined to extend benefit of doubt to him. The
conclusions drawn by the courts below are not tenable on the
basis of the evidence available. The appeal is thus allowed and
the conviction and sentence recorded by the courts below is
hereby set aside. The appellant be released from the jail
forthwith if he is not required in any other case.
…….....……………………..….J.
(PINAKI CHANDRA GHOSE)
……....……………………..….J.
NEW DELHI; (AMITAVA ROY)
OCTOBER 3, 2016.
conjunction with the testimony of the doctor does not link the
appellant directly or indirectly with the actual act leading to the
unnatural death of the deceased. In absence of any persuasive
evidence to hold that at the relevant time the appellant was
present in the house, it would also be impermissible to cast any
burden on him as contemplated under Section 106 of the
Evidence Act. The consistent testimony of the appellant and his
son to the effect that after alighting from the bus on their return
from Pota, the deceased was made to accompany DW1 back
home while the appellant did go in search of labourers for works
in his compound on the next day and that thereafter till the time
DW1 had departed for his ancestral house, the appellant did not
return home, consolidates the defence plea of innocence of the
appellant.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 919 OF 2013
JOSE @ PAPPACHAN
V
THE SUB-INSPECTOR OF POLICE,
KOYILANDY & ANOTHER
Dated:OCTOBER 3, 2016.
Citation: (2016) 10 SCC 519
The appellant stands sequentially convicted by the both
the Courts below under Section 302 of the Indian Penal code
(for short, hereinafter to be referred to as “IPC”) and resultantly
sentenced to suffer imprisonment for life and also to pay fine of
Rs. 10000/-.
2. At the trial, he along with his brother Benny Joseph,
were indicted under Sections 498A/Section 302 IPC read with
Section 34 IPC for having murdered his wife Neena. The Trial
Court however acquitted both of them of the charge under
Section 498A IPC. The co-accused was also acquitted of the
other charge. To reiterate, the conviction of the appellant under
Section 302 IPC having been sustained by the High Court, he
seeks panacean intervention in the instant appeal.
3. We have heard Mr. Basant R., learned senior counsel
for the appellant and Mr. G. Prakash, learned counsel for the
respondents.
4. To appropriately outline the factual premise, apt it
would be at the threshold to present the fascicule of the rival
projections.
5. The appellant was a police constable at the time of
marriage with the deceased on 19.6.1986 as per their customary
rites whereafter they set up their matrimonial home to start with
at their family house and thereafter at the places of his postings
in service. Allegedly, he developed an extra-marital relationship
with one lady named Darly for which he used to ill-treat and
harass his wife both physically and mentally whenever she used
to express her reservations and objections to such alliance.
According to the prosecution, under the influence of the said
lady, the appellant even resigned from his job and proceeded for
Jeddah in the year 1997 where he and the said Darly lived as
husband and wife. It is alleged that in order to legalise the
relationship, the appellant plotted to eliminate the deceased
and with that end in view, returned to India on 22.8.2000. He
thereafter accompanied Neena, the deceased, for a spiritual
retreat to “Potta Divine Retreat Centre” but abruptly cut short
their stay thereat and returned home on 19.9.2000. The
accusation is that after their return on that date, sometime in
between 6.30 to 8.30 p.m., the appellant smothered the
deceased inside the room of his house, strangulated her by
using a plastic rope and then hanged her from a hook of the
roof of the work area of the house by using a saree and thus
brutally murdered her. The prosecution has imputed that in
this heinous act, the co-accused his brother, who since has been
acquitted, had assisted him.
6. The information of this incident was lodged by Mr.
Cheriyan @ Papputy with the Koonachundu Police Station
whereafter the the appellant and the co-accused, his brother
were arrested on 21.9.2000 and 15.11.2000 respectively. On
the closure of the investigation, charge-sheet was laid against
both the accused persons under Sections 498A/ 302 read with
Section 34 IPC and eventually, the case was committed for trial
to the Sessions Court, Kozhikod.
7. The accused persons denied the charge and claimed to
be tried, whereafter the prosecution examined 25 witnesses
including the doctor, who performed the post-mortemPage 4
4
examination on the dead body as well as the investigating
officer. Several documents were also proved and exhibited. The
accused persons were examined under Section 313 Cr.P.C.
They stood by their denial and refuted the correctness of the
incriminating circumstances with which they were confronted.
They also examined three witnesses in defence.
8. The Trial Court, to reiterate, on a scrutiny of the
evidence of the record and after analysing the rival contentions,
acquitted both of them of the charge under Section 498A but
held the appellant guilty of the offence of murder of his wife
Neena and convicted him under Section 302 IPC and sentenced
him as above. The co-accused was exonerated of the charge
under Section 302 IPC as well. The appellant failed to secure
his acquittal before the High Court, which by the verdict
impugned, has sustained the determination of the Trial Court.
9. Before adverting to the evidence adduced, it would be
expedient to notice the defence plea for a purposeful
appreciation thereof.
10. It is the assertion of the appellant that being
compelled by financial distress and with the consent and
approval of the deceased, he had gone to Saudi Arabia onPage 5
5
12.9.1997 in search of better pastures, after resigning from his
service from the State Police Department. He claimed that his
relationship with his wife had always remained very fond and
affectionate and that out of the wedlock, they had two sons. To
endorse this contention, he referred amongst others to the
letters written by the deceased in particular to him while he was
abroad. He maintained that he used to remit finances for the
sustenance of the deceased and the children and that on his
return to the country, he on the request of the deceased had
accompanied to a divine retreat on 16.9.2000 to Potta,
wherefrom they returned on 19.9.2000.
11. According to him, they alighted from the bus from
Potta at their destination at about 7.30 pm. when they saw their
elder son going for purchase of house hold articles. He then sent
the deceased home with his son and he went in search for
labourers to work on his property on the next day. He
mentioned that in the process, he met Mullakkara Kunhumon,
Sainaba, Jameela and Palliparambil Thankan and finalised with
them for such work. According to him, he thereafter with
Thankan went to the house of Edattankuzhi Jose and Cheriyan
@ Papputty but found that Jose was away for a meeting. HePage 6
6
thereafter proceeded towards his house and on the way was
pushed down by two persons hurriedly coming from the opposite
direction. On his hue and cry, persons from the locality rushed
to the place and searched for these two persons, but in vain. As
in the process, the co-accused, his brother suffered chest pain,
the appellant requested Joy (PW7) and Cheriyan @ Papputty
(PW1) to bring the necessary medical documents from his wife.
12. These two persons after reaching the house of the
appellant, raised alarm and on hearing the cry, he (appellant)
along with Anikkal Babu and Thankan, who were present there,
rushed to his (appellant) house whereupon they saw Neena in a
hanging posture from a hook in the roof of the work area of the
house and that Joy and Cheriyan @ Papputty were holding her
legs to lift the body upwards. The appellant thereafter took a
knife (koduval) from his kitchen and brought down the body by
snapping the saree by which the body was hanging. They then
rushed Neena to the Medical College Hospital where she was
declared to be dead. The appellant while insisting that he was
innocent, laid the blame on the relations of the deceased to
have foisted a false case against him.
13. As referred to hereinabove, the First InformationPage 7
7
Report was lodged by Cheriyan @ Papputty at 9.30 a.m. on the
next day i.e. 20.9.2000, his version being that about 10 P.M. on
19.9.2000, while Benny (co-accused and brother of the
appellant) was sitting in the tea shop of Pulluparambil Mathew
(PW6), he suffered an epileptic attack for which he along with
Mathew, on being requested by the appellant, went to his house
to secure the medical papers from Neena. It was mentioned that
when they reached the house, they found the door open with a
lantern lit inside. As on their calls, the deceased Neena did not
respond, they entered the house and found her in a hanging
position from the hook on the ceiling at the work area at the rear
side of the house and that she was struggling for life. They
having raised alarm by that sight, the appellant and his
neighbourers including Kunjumon, Regi and Thankan arrived at
the spot, whereafter the appellant cut the saree by which Neena
was hanging and took her in a jeep to a Medical College Hospital
where she was declared dead.
14. In course of the investigation, the police conducted the
inquest of the dead body and in the process also recorded the
statement of PW6 Mathew who was present. His statement, as
recorded on the date of the inquest i.e. 20.9.2000, is to thePage 8
8
effect that on 19.9.2000 at about 9 p.m., while he was preparing
to sleep, the appellant loudly called him as well as his brother
Benny to come hurriedly. When the witness reached the place
from where the appellant had shouted, he found the appellant
asking somebody to stop and also abusing someone. When
enquired, the appellant, stated to have seen two persons who
had pushed him down and had ran away. They thereafter
engaged themselves in search of the persons refereed to by the
appellant but in vain. According to the witness, the appellant’s
brother Benny started feeling sick for which Kunjumon, who
was present, was asked by the appellant to call a jeep to take
him to the hospital. The appellant simultaneously asked the
witness to go to his house and fetch the medical prescription
from his wife Neena. The witness along with PW1 Cheriyan @
Papputty then went to the house of the appellant and when
Neena did not respond to their calls, they open the door which
was not bolted and on reaching the kitchen area, they found the
deceased in a hanging position from a hook atop the kitchen
veranda by a saree, but was gasping for breath. On seeing this,
both of them loudly raised alarm and raised Neena upwards by
holding her legs. The witness further stated that by that time,Page 9
9
the appellant and others came running by hearing their cries
and the appellant brought a knife from the kitchen, cut the
saree, brought down the body and then they took Neena
thereafter in a jeep to Thalayada Hospital where the nurse there
recommended that she be taken to the Medical College Hospital,
They did so, but the doctor there declared her to be dead.
15. The version in the FIR and the version of the
informant,PW1 Cheriyan @ Papputty and PW6 Mathew, made at
the earliest point of time after the incident, to start with, appear
to be substantially consistent.
16. PW1 Cheriyan @ Papputty testified that at 9.30 p.m.
on 19.9.2000, he had gone to sleep after dinner, when he was
awakened by PW7 Joy to be told that Neena had committed
suicide. PW7, according to the witness, then was accompanied
by the appellant and PW6 Mathew. He confirmed that prior to
the date, the appellant and Neena had gone together for retreat
at Potta, leaving their children at their ancestral house. On
being questioned, the appellant divulged that they had returned
the same evening as Neena was adamant to come back.
17. The witness stated that on getting the news, he along
with those present, including the appellant, ran to his housePage 10
10
and on the way, the appellant stopped a car that was passing
and sent in it, the co-accused Benny, his brother. The appellant
thereafter sent Joy to bring a jeep. When they reached the work
area of the back of the house of the appellant, they found Neena
hanging from the hook attached to the ceiling by a saree. The
appellant brought a knife from the kitchen, cut the saree and
brought the body down with the help of others. The witness
stated that in the meantime, Joy had come with the Jeep. They
all carried Neena firstly to a private hospital where a nurse, on
being told that it was a case of suicide, advised that the patient
be taken to the Medical College Hospital. When they reached
the hospital, the doctor on examining the Neena declared her to
be brought dead.
18. The witness mentioned about the injuries above the
nose and side of the eyebrow and also swelling on the forehead
of the Neena. When the witness asked about the injuries, the
appellant told him that those might have been caused in the
process of cutting the saree to bring the body down. The
information about the incident was lodged on the next day by
him and he proved the same as Ex. P-1. The witness also
confirmed that the appellant had later married one lady namedPage 11
11
Darly and that he had been living with her thereafter.
19. In the cross-examination, this witness disclosed that
about 3/1/2 years before the incident, the appellant had
resigned from his service in the police department and had gone
to the Gulf leaving behind Neena and children in the house
built by him. He also mentioned about the ancestral house of
the father of the appellant about 200 meters away from his
house. The witness admitted as well that the co-accused Benny,
brother of the appellant, had been then suffering from epilepsy
and on the date of the incident as well, he had a bout of attack
thereof.
20. In the course of the cross-examination, this witness
was sought to be discredited by referring to his earlier
statements made in the course of the investigation. This was, as
imputed by the defence as the principal witnesses PW1
Cheriyan, PW6 Mathew and PW7 Joy had been examined twice
by the police, the last being on 22.1.2004 on the eve of
submission of the charge-sheet, with an endeavour to highlight
that the earlier statements had been tailored as desired and
suggested by the appellant. Noticeably, the time lag between the
date of the incident and that of the second recording of thePage 12
12
statement of these witnesses on 22.1.2004, is nearly four years.
21. PW6 Mathew deposed on oath that at the relevant
time, he was running a tea shop in the locality which was very
near the house where the appellant and the deceased used to
reside. According to this witness, on the date of the incident at
about 7 p.m., he had closed his shop to attend a meeting from
where he returned at about 8.30 p.m. He found present at the
shop, Jose, (nephew of the appellant) along with others. After
some time they dispersed therefrom.
22. According to the witness, later in the evening, when he
had gone to sleep, the appellant came to his house at about 9
p.m. and called him. He also called his brother Benny and
seemed to shout abuses at someone. The witness along with
Jose ran towards the appellant and by that time, they reached
the place, they found others gathered as well. The appellant
disclosed to him that while he was returning to his house, he
was pushed down by two persons on the way. The group
assembled there, then tried to search for these persons but
could not trace them. At that time, Benny, the brother of the
appellant developed chest pain and he was taken to the shop of
the witness. The appellant then requested the witness to go toPage 13
13
his ancestral house to fetch tablets for Benny whereupon he
along with Jackson did so. While passing by the front of the
house of appellant, they noticed that the lantern inside was lit
but the door was open. They did not see any movement in the
house. The witness stated that when he returned with the
tablets, the appellant enquired about the admit card and
prescription for extending treatment to Benny. On the request
of the appellant thereafter, the witness along with Joy PW7 went
to the house of the appellant and when they reached there, they
called out for Neena, but she did not respond. On this, they
entered the house and found Neena hanging from hook in the
roof of the work area at the rear end of the house. He and Joy
thereafter ran back to the shop to inform about the incident,
whereupon the appellant and PW1 accompanied them back to
the house. The appellant asked Joy PW7 to bring a jeep to take
Neena to the hospital. They then retrieved the body and took
Neena to the hospital where she was declared dead. The witness
mentioned that he had given the earlier statement as per the
instructions of the appellant and that when he was interrogated
by the Investigating Officer for the second time, he stated the
correct facts. Page 14
14
23. In the cross-examination, the witness was confronted
with the earlier statement that when he and PW6 had first seen
Neena hanging, she was struggling and that they raised her
upward and raised alarm on listening which the appellant and
others had come running. He however denied the suggestion
that he had departed from the earlier statement on being
influenced by the family members of the Neena.
24. PW7 Joy was a taxi driver at the relevant time and
had a jeep. This witness stated as well that at about 10 p.m. in
the fateful night, while he was sleeping in his house, two
persons namely; Kunjumon and Palliparambil called him and
on being asked, requested him to come with his jeep as Benny,
brother of the appellant was unwell. On this, the witness
reached the shop by PW6 Mathew with his jeep and found
Benny sitting on the bench with the support on the desk. He
met the appellant who told him that Jackson and Mathew had
gone to fetch tablets for Benny and on their return, he (Benny)
would be taken for medical treatment. The witness further
stated that when Jackson and Mathew returned with the
medicines, the appellant enquired of them about the admit card
and prescription which they stated had not been brought. OnPage 15
15
this, the appellant requested them to get those papers from his
house, whereupon the witness and PW6 proceeded towards the
house of the appellant. This witness stated that on reaching
the house of the appellant, they saw the front door thereof to be
half open but the kerosene lantern inside was alight. As Neena
did not respond to their calls, the witness and PW6 entered the
house and eventually found Neena hanging from the roof of the
service area with a saree. The witness stated that they ran back,
by seeing this to the shop of Mathew where they informed the
appellant about the incident. On hearing this, the witness, PW1
and PW6 rushed to the house of the appellant. On the way, the
appellant stopped a car and sent Benny together with Jackson
and others to the Medical College Hospital. The witness stated
that at that point of time, the appellant asked him to bring the
jeep to his house whereafter PW1, the appellant and others took
Neena in his jeep to the hospital where she was declared dead.
This witness admitted that the Investigating Officer had
recorded his statement twice. He conceded that in the earlier
statement, he disclosed that it was PW1 who had first seen
Neena in a hanging position. He added that such a statement
was made on the instruction of the appellant. Page 16
16
25. In cross-examination, this witness stated that his
first statement was recorded on 22/23.9.2000 at the Police
Station and by then the appellant had been arrested on
21.9.2000. This witness too was confronted with his earlier
statements.
26. PW20 Dr. Hitesh Sankar had conducted the
post-mortem examination on the dead body and recorded
swelling on the left side of the forehead together with dried blood
stains on the upper part of the nose. Apart from pressure
abrasion on the neck and fracture of the greater horn of hyoid
bone of the left side, he deposed about contusions and
abrasions on the forehead, eye brow, nose and jaw. He
mentioned about scalp contusions as internal injuries.
27. In his opinion, as expressed in his examination in
chief, the findings in the post mortem were consistent with
death due to strangulation followed by hanging and further that
the facial injuries were suggestive of attempted smothering. He
thereafter answered in the affirmative to various leading
questions to indicate amongst others that the linear abrasion
under the neck could be caused by applying a plastic rope as per
the material exhibit shown to him. He also responded to one ofPage 17
17
the leading queries that the fracture of thyroid bone could be
due to strangulation.
28. In his cross-examination, the witness however in
categorical terms conceded that he could not say as to whether
it was a case of suicidal or homicidal hanging. The witness
conceded that he had not noticed any blood stain on the
material exhibit i.e. plastic rope or any stretch mark thereon.
He also admitted of not noticing any fibre particle on the rope or
on the neck of the deceased. He conceded as well that there was
no contusion/laceration on the inner aspect of the lips which are
normal feature in the case of smothering. He also negatived the
presence of other attendant signs in case of death due to
asphyxia preceded by smothering. He however affirmed that the
ligature mark or the abrasion found on the neck was suggestive
of hanging. He admitted as well that hyoid and thyroid fracture
could be caused due to pull up of heightened noose moving up
during hanging. He admitted of not having mentioned any
injury of nail mark in the post-mortem certificate.
29. Apart from the fact that the nylon rope Ex.MO4 and
the broken pieces of glass bangles had been recovered and
seized from under a cot in the dining room, away from the sitePage 18
18
of hanging, the report of the chemical examiner Ex.P20 did not
disclose any blood stain on the plastic rope. Though was
indicated presence of hairs of human origin on the said rope, it
was clarified that no definite opinion could be given as to
whether the hairs belonged to a male or a female. To reiterate,
the doctor, PW20 also had affirmed that he did not notice any
blood stain on the nylon rope and instead added that neither
was there any stretch mark thereon nor did he notice any fibre
particle thereof on the neck of the deceased.
30. Though the prosecution had examined several other
witnesses, their testimony being not of any decisive relevance
would not be dilated upon. The Investigating Officer of the case,
however, in his evidence amongst others admitted that the nylon
rope and the bangle pieces were recovered from the dining room.
This also finds support from the seizure list Ex. P-4.
31. The appellant in his statement under Section 313
Cr.P.C., in reply to the incriminating circumstances laid before
him, stated that he had resigned from police service as per the
wishes of Neena and due to financial stringency and had gone
to Saudi Arabia on 12.9.1997 and had returned on 21.8.2000.
According to him, there was an abiding and affectionatePage 19
19
relationship between the couple and that they had two sons
Akhil and Nikhil. He referred to the letters written by Neena to
him while he was abroad, amongst others to demonstrate the
veracity of his statement about the warm relationship which he
shared with Neena. He also asserted to have sent money to
Neena and the children for their sustenance and also referred to
the relevant documents in endorsement thereof. He mentioned
about their visit to Potta on 16.9.2000 and their return on
19.9.2000. He narrated the defence version as adverted to
herienabove and claimed that death of Neena had occurred due
to suicide committed by her and denied the charge levelled
against him and his brother Benny. He however admitted that
after six years of the incident, on the insistence of his parents,
he had married with one lady named Anna. He alleged that the
prosecution had been launched by her in-laws who were hostile
towards him.
32. The appellant in his defence, examined his son Akhil
as DW1, who at the relevant time, had finished his studies and
was working in the production section at Fortune Hotel,
Kozhikode. He deposed on oath that during his academic years,
he resided with his mother and his younger brother namedPage 20
20
Nikhil. He stated that the appellant, his father was initially in
the police service from where he resigned and went to Gulf for
work in the year 1997 and had returned in August, 2000. He
deposed that during the time his father was away, he used to
stay with his mother and younger brother in their house at
Edattankuzhiyil. He confirmed that the relationship between
his mother and father was very cordial. He denied the
appellant's association with a lady named Darly and as a matter
of fact expressed ignorance about her. The witness admitted
that the appellant used to send money while he was away by
drafts and that he along with his mother used to go to the bank
for that purpose. He also affirmed that the appellant used to be
in touch with them through letters and phone calls. The witness
proved two letters marked Ex D4 & D4A which he admitted to
have been written by his mother to the appellant. He testified
that as well that even after the return of the appellant from the
Gulf, his dealings with the mother and vice versa were warm
and endearing.
33. This witness endorsed the fact as well that he met his
parents on 19.9.2000 at about 7.30 p.m. when they alighted
from the bus from Potta and were proceeding towards theirPage 21
21
house. He stated that at that point of time, he was also
returning home with some household articles and thus he
accompanied his mother back home while his father, the
appellant went in search of labourers for the next day work in
his compound. The witness stated that on their return, his
mother prepared snacks, whereafter she told her to carry some
articles to the ancestral house and accordingly he did so. The
witness however added that though he waited for his parents
to come to the ancestral house, they did not do so and he came
to learn about the death of his mother in the next morning.
34. In cross-examination, though this witness
categorically denied the suggestions put on behalf of the
prosecution to project him to be untruthful, he disclosed that
on the date of the incident, he found his mother to be under
some mental stress. He however, in definite terms, denied that
when he met the appellant and his mother together for the last
time, there did not appear to be any strained feelings between
them.
35. The testimony of the appellant on oath as DW2 is the
replication of the defence version as already outlined and does
not call for reiteration. He however proved the two letters datedPage 22
22
28.2.2000 and 7.6.2000 written by the deceased to him and
marked as Ex. D4 and D4A. He however mentioned that Neena
was not happy for the early return from the divine retreat and
repeated that having disembarked from the bus at 7.30 p.m., he
sent Neena with his elder son Akhil back home, while he went
in search of labourers for the next day's work. He stated that
while he was proceeding towards his house later in the evening,
two persons came from the opposite direction, whom he failed to
identify, pushed him down for which he suffered injuries on his
hand. He thereafter shouted to attract people so as to
apprehend these persons, but in vain. He referred to the illness
of his brother at that point of time and repeated the facts
pertaining to the events that occurred thereafter leading to the
discovery that Neena had hanged herself from the hook of the
ceiling of the work area of their house.
36. In cross-examination, amongst others, he admitted to
have brought down Neena by cutting the noose with the help of
other persons. He admitted as well his second marriage with
Anna @ Darly.
37. DW3 Babu stated about the search made in the
evening of the date of the incident of the persons, whoPage 23
23
according to the appellant, had pushed him down on his way to
his house. He also stated about the chest pain of Benny,
brother of the appellant while the search was in progress.
38. As the impugned judgement would disclose, the High
Court took note amongst others of the factum of second
marriage of the appellant with the lady Anna @ Darly as stated
to be proved by the evidence adduced. It also took note of the
fact that the couple had gone for the divine retreat for a week by
arranging the stay of the children at the ancestral house but
returned early. It disbelieved the testimony of DW1, the son of
the appellant, construing it to be partisan in favour of the
appellant in order to save him, in the circumstances. His
testimony was discarded as not of a prudent son otherwise
expected to be sensitive to the death of his mother. The High
Court denounced the DW1 to be untruthful, for having
expressing his ignorance about the second wife of the appellant
Anna @ Darly. It thus concluded that sans the evidence of DW1,
there is nothing on record to demonstrate that the appellant did
not accompany his wife to the house that evening, whereafter
she was not found alive.
39. Apart from the “last seen together” index, the HighPage 24
24
Court accepted the other perceived incriminating circumstances
against the appellant namely his illicit intimacy with Anna@
Darly, absence of explanation of his whereabouts after 7 P.M. till
his presence in the shop of PW6 Mathew, recovery of broken
bangles of the deceased from the dining room indicating a
struggle, nail mark found on the forehead of the appellant
suggesting resistance from the deceased and want of
satisfactory explanation as to under what circumstances the
deceased was found hanging in the house of the couple.
40. The High Court rejected the defence story of two
persons pushing the appellant down on his way to his house in
the evening and also commented on his conduct of not rushing
to the house as a prudent husband and instead arranging for
the conveyance of his brother to take him to the hospital even
after being told that his wife had been found hanging in the
house. On a consideration of the totality of the circumstances,
the High Court thus deduced that the death of Neena was
homicidal and affirmed the conviction of the appellant as
recorded by the Trial Court.
41. In this contentious backdrop, Mr. Basant has
emphatically urged that in the absence of any eye witness of thePage 25
25
occurrence and a convincing and complete chain of
circumstantial evidence unerringly attesting the guilt of the
appellant, his conviction for murder, in the teeth of the acquittal
of the co-accused Benny, his brother, is patently illegal.
Asserting that the evidence as a whole does unmistakably
demonstrate that the deceased had committed suicide, the
learned senior counsel has urged that the acquittal of the
appellant and his co-accused of the charge under Section 498A
IPC also belies the imputation of his extra-marital association
with the lady Darly as alleged by the prosecution. According to
him, the narration in the first information report authored by
PW1 and the statement of PW6 in the inquest report at the
earliest point of time though authenticate the correct state of
affairs, the attempt on the part of the investigating agency to
improve thereon by re-recording of the statements of these
witnesses along with that of PW7 was only to frame the
appellant in particular at the behest of his in-laws.
42. In any view of the matter, Mr. Basant has urged that
the interrogation of these witnesses after time lag of almost four
years and too on the eve of submission of the charge-sheet,
lays-bare the stratagem of the investigating agency to prosecutePage 26
26
him on otherwise unfounded allegations. The learned senior
counsel has insisted that not only the testimony of PW1, PW6,
PW7 and PW20, the doctor who had performed the post-mortem
examination is consistent with the innocence of the appellant,
it is apparent from the documentary evidence more particularly
the letters Ex. D4 and D4A written by the deceased to him that
there was a subsisting loving and affectionate relationship
between them till the demise of the former. He has argued that
the medical evidence having failed to convincingly prove that
the deceased had died of homicidal hanging, the seizure of the
nylon rope and broken pieces of bangles from under the cot of
the adjoining dining room pales into insignificance. It has been
urged that the evidence of the son of the appellant, who was a
major at the time of his deposition with the desired maturity of
understanding, overwhelmingly establishes his innocence, there
being no persuasive reason for the witness to lie in his favour
and against his mother.
43. According to Mr. Basant, the courts below grossly
erred in discarding his evidence being unworthy of credit,
branding him to be insensitive to the death of his mother and
pretentious in faking ignorance of the lady named Anna @ DarlyPage 27
27
and her alleged extra-marital relationship with the appellant.
The learned senior counsel has maintained that in absence of
any concrete evidence of the alleged illicit nexus between the
appellant and the lady named Anna @ Darly, his marriage with
her did not ipso facto establish the imputation. Mr. Basant has
urged that the circumstantial evidence relied upon by the
prosecution is incoherent and insufficient in form, continuity
and content and falls short of the legally prescribed standards
to return a finding of guilt on the basis thereof. Reliance has
been placed on the decisions of this Court in Sharad
Birdhichand Sarda vs. State of Maharashtra (1984)4 SCC
116 and R. Rajendran Nair vs. State of Kerala (1998) SCC
(Crl.) 254
44. In refutation, the learned counsel for the respondents
has maintained that the circumstantial evidence available on
the record does amply establish the complicity of the appellant
in the gruesome murder of the deceased, his wife by
strangulation with the aid of a nylon rope seized and then
suspending her from the roof of the work area by using a saree
as a ligature. The guilt of the appellant, according to the learned
state counsel, inter alia is unerringly deducible from hisPage 28
28
unusual conduct of not rushing back home even after being
informed of the incident and instead in arranging for a
conveyance for his brother to the hospital. Further, he did not
act as a prudent husband, even if his story of being pushed
down by two strangers is believed in not hurrying back to his
house to ensure the safety of his wife, the deceased. It has been
argued that deceased was seen alive last in the company of the
appellant when they alighted from the bus at 7.30 p.m. in the
same evening. According to the learned state counsel, the
testimony of DW1, the son of the appellant is wholly
untrustworthy, it being partisan and untruthful and in that
view of the matter, the mishap having occurred inside the house
in which the couple used to live, the appellant, in absence of any
explanation for the episode, has been rightly held to be guilty of
the offence charged by both the courts below. It has been
argued that the medical evidence fully substantiates the charge
of murder levelled against the appellant and the prosecution
having been able to prove that the motive therefor being to
eliminate the deceased in order to facilitate the consummation
of the otherwise illicit relationship of his with Anna @ Darly, no
interference with his conviction is warranted in the facts andPage 29
29
circumstances of the case. The fact that the appellant
eventually married the said lady, amply establishes the charge
as well, he urged.
45. The arguments exchanged have received our anxious
consideration cumulatively with the evidence on record.
Admittedly there is no eye-witness to the incident. The
endeavour of the prosecution, however has been to demonstrate
that after the couple had returned from Pota in the evening of
the date of the episode, they returned home and thereafter the
appellant had committed the murder of his wife Neena by first
strangulating her with the nylon rope that was recovered from
under the cot in the dining room and then had hanged her from
the hook of the roof of the service area by using a saree as a
ligature. This inference, according to the prosecution, is
inevitable from the attendant facts and circumstances. The
quality and the decisiveness of such evidence, therefore, would
be of determinative relevance.
46. Aside the aspect that PWs 1, 6 and 7 had been
examined twice by the investigating agency at the interval of
almost four years, we have been left unconvinced by the
peripheral variations in their statements so as to infer thePage 30
30
complicity of the appellant on the basis of their attempted
departure from their versions recorded at the earliest point of
time. Though these witnesses have been sought to be
discredited by the prosecution vis-a-vis their earlier statements
allegedly made at the behest of the appellant, the essence of
their testimony qua the incident and the attendant facts and
circumstances has remained the same barring a few
inconsequential inconsistencies. Noticeably, there is no reason
forthcoming for re-examining these witnesses after almost four
years and on the verge of the submission of the charge-sheet.
The plea of false implication at the instance of the inimical
members of the family of the deceased in this context thus
assumes significance.
47. Suffice it to recount that the testimony of PWs 1, 6
and 7 would evince that when the persons sent by the appellant
had reached the house of the appellant to fetch the medical
records of his brother Benny, they found the door open and
when the deceased did not respond to their call, they entered
through the door and found her in a hanging posture with
movements, whereupon they raised alarm for which the
appellant and others rushed to the place and the body of the
deceased was brought down by cutting the saree. Though the
conduct and the movements of the appellant prior thereto had
been somewhat unusual and disoriented, the same per se in our
estimate does not irrefutably establish his culpability.
48. The medical evidence as elaborated hereinabove also
does not decisively establish the case to be of homicidal hanging.
The unchallenged expositions of the doctor performing the postmortem
examination highlighting the absence of the
characteristic attributes attendant on death due to homicidal
hanging following strangulation further reinforce the possibility
of suicide. The absence of definite medical opinion about the
homicidal death of the deceased in our comprehension is a
serious set back to the prosecution.
49. The evidence of the eye-witnesses when considered in
conjunction with the testimony of the doctor does not link the
appellant directly or indirectly with the actual act leading to the
unnatural death of the deceased. In absence of any persuasive
evidence to hold that at the relevant time the appellant was
present in the house, it would also be impermissible to cast any
burden on him as contemplated under Section 106 of the
Evidence Act. The consistent testimony of the appellant and his
son to the effect that after alighting from the bus on their return
from Pota, the deceased was made to accompany DW1 back
home while the appellant did go in search of labourers for works
in his compound on the next day and that thereafter till the time
DW1 had departed for his ancestral house, the appellant did not
return home, consolidates the defence plea of innocence of the
appellant.
50. This version of the appellant and his son is in accord
with the statement made by the appellant under Section 313
Cr.P.C. as well. Though the courts below have dismissed the
testimony of DW1 as untrustworthy, he having feigned ignorance
about the lady Darly with whom his father allegedly had extra
marital affairs and was construed to be partisan towards the
appellant and insensitive to the death of his mother, we are
unable to lend our concurrence to these reasonings. This
witness at the time of his deposition was a major with the
required maturity in the life's perspectives, and in our
assessment expectedly would not have lied for the appellant, his
father, only to see him through, though knowing him to be the
real perpetrator of the crime. This is more so when the deceased
was his own mother.
51. The prosecution plea that the appellant had resigned
from the service in the police department to move out to
Jeddah/Saudi Arabia with the intention to perpetuate his illicit
association with the lady Darly thereat and that in a way he had
deserted the deceased and the children, is also not borne out
definitively by the materials on record. On the other hand, a
plain perusal of the letters Ex. D4 and Ex.D4A written by the
deceased to the appellant while he was abroad, do not reveal
anguished outbursts of a wife otherwise expected in such a
situation or any fervent insistence for early return. Instead the
contents thereof reveal narration of mundane happenings of day
to day life, emphasis on the need for his required stay thereat
for enhanced savings together with somewhat intimate feelings
expected of a married couple physically estranged by
compulsion of circumstances. The letters for the least, do not
suggest any bitterness, disappointment, frustration and
seething indignation of the deceased for the appellant being
away at Jeddah/Saudi Arabia and allegedly with the lady,
Darly. Instead there are traces of cheer for his expected return
in near future. The authenticity of these letters and also of the
records relied upon by the defence to demonstrate that the
appellant while abroad used to remit money for the sustenance
of the family, has not been impeached.
52. On an overall consideration of the evidence available
on record, it would be, in our view, wholly unsafe to hold the
appellant guilty of the charge of murder of his wife by
strangulating her with the nylon rope as seized and then
hanging her from the roof with the saree to complete the act.
The circumstantial evidence adduced by the prosecution in our
assessment falls short of the requirement in law to return a
finding of guilt against the appellant without any element of
doubt whatsoever. The fact that both the accused persons had
been exonerated of the charge of cruelty under Section 498A
IPC and that the co-accused, who allegedly had assisted the
appellant in the perpetration of the crime had been fully
acquitted by the courts below of all the charges also takes
away the wind from the sails of the prosecution.
53. It is a trite proposition of law, that suspicion however
grave, it cannot take the place of proof and that the prosecution
in order to succeed on a criminal charge cannot afford to lodge
its case in the realm of “may be true” but has to essentially
elevate it to the grade of “must be true”. In a criminal
prosecution, the court has a duty to ensure that mere
conjectures or suspicion do not take the place of legal proof and
in a situation where a reasonable doubt is entertained in the
backdrop of the evidence available, to prevent miscarriage of
justice, benefit of doubt is to be extended to the accused. Such
a doubt essentially has to be reasonable and not imaginary,
fanciful, intangible or non-existent but as entertainable by an
impartial, prudent and analytical mind, judged on the touch
stone of reason and common sense. It is also a primary
postulation in criminal jurisprudence that if two views are
possible on the evidence available, one pointing to the guilt of
the accused and the other to his innocence, the one favourable
to the accused ought to be adopted.
54. The facts as obtained in the present case present a
jigsaw puzzle in which several frames are missing to permit an
unreserved opinion of the complicity of the appellant.
55. The inalienable interface of presumption of innocence
and the burden of proof in a criminal case on the prosecution
has been succinctly expounded in the following passage from the
treatise “The Law of Evidence” fifth edition by Ian Dennis at
page 445:
“The presumption of innocence states that a person
is presumed to be innocent until proven guilty. In
one sense this simply restates in different language
the rule that the burden of proof in a criminal case is
on the prosecution to prove the defendant's guilt. As
explained above, the burden of proof rule has a
number of functions, one of which is to provide a rule
of decision for the factfinder in a situation of
uncertainty. Another function is to allocate the risk
of misdecision in criminal trials. Because the
outcome of wrongful conviction is regarded as a
significantly worse harm than wrongful acquittal the
rule is constructed so as to minimise the risk of the
former. The burden of overcoming a presumption
that the defendant is innocent therefore requires the
state to prove the defendant's guilt.”
56. The above quote thus seemingly concede a
preference to wrongful acquittal compared to the risk of
wrongful conviction. Such is the abiding jurisprudential
concern to eschew even the remotest possibility of unmerited
conviction.
57. This applies with full force particularly in fact
situations where the charge is the sought to be established by
circumstantial evidence. These enunciations are so well
entrenched that we do not wish to burden the present narration
by referring to the decisions of this Court in this regard.
58. Addressing this aspect, however, is the following
extract also from the same treatise “The Law of Evidence” fifth
edition by Ian Dennis at page 483:
“Where the case against the accused depends wholly
or partly on inferences from circumstantial evidence,
factfinders cannot logically convict unless they are
sure that inferences of guilt are the only ones that can
reasonably be drawn. If they think that there are
possible innocent explanations for circumstantial
evidence that are not “merely fanciful”, it must follow
that there is a reasonable doubt about guilt. There is
no rule, however, that judges must direct juries in
terms not to convict unless they are sure that the
evidence bears no other explanation than guilt. It is
sufficient to direct simply that the burden on the
prosecution is to satisfy the jury beyond reasonable
doubt, or so that they are sure.
The very high standard of proof required in criminal
cases minimises the risk of a wrongful conviction. It
means that someone whom, on the evidence, the
factfinder believes is “probably” guilty, or “likely” to
be guilty will be acquitted, since these judgements of
probability necessarily admit that the factfinder is
not “sure”. It is generally accepted that some at least
of these acquittals will be of persons who are in fact
guilty of the offences charged, and who would be
convicted if the standard of proof were the lower civil
standard of the balance of probabilities. Such
acquittals are the price paid for the safeguard
provided by the “beyond reasonable doubt” standard
against wrongful conviction.” Page 38
38
59. A reference in the passing however to the of quoted
decision in Sharad Birdhichand Sarda (supra) construed to be
locus classicus on the relevance and decisiveness of
circumstantial evidence as a proof of the charge of a criminal
offence would not be out of place. The relevant excerpts from
paragraph 153 of the decision is extracted herein below.
“153.(2) The facts so established should be
consistent only with the hypothesis of the guilt of the
accused...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.
* * *
(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.”
60. As recent as in Sujit Biswas vs. State of Assam
(2013) 12 SCC 406, this Court also in the contextual facts
constituting circumstantial evidence ruled that in judging the
culpability of an accused, the circumstances adduced when
collectively considered must lead to the only irresistible
conclusion that the accused alone is the perpetrator of a crime in
question and the circumstances established must be of a
conclusive nature consistent only with the hypothesis of the guilt
of the accused.
61. In Dhan Raj @ Dhand vs. State of Haryana (2014)
6 SCC 745, one of us (Hon. Ghose,J.) while dwelling on the
imperatives of circumstantial evidence ruled that the same has
to be of highest order to satisfy the test of proof in a criminal
prosecution. It was underlined that such circumstantial
evidence should establish a complete unbroken chain of events
so that only one inference of guilt of the accused would ensue by
excluding all possible hypothesis of his innocence. It was held
further that in case of circumstantial evidence, each
circumstance must be proved beyond reasonable doubt by
independent evidence excluding any chance of surmise or
conjecture.
62. Judged on the above parameters, we are of the
unhesitant opinion that the evidence adduced by the prosecution
constituting circumstantial evidence in support of the charge
does not furnish an unassailable basis to hold the appellant
guilty of the charge of murder levelled against him. The facts and
circumstances admit of a reasonable doubt in his favour.
63. The circumstances brought forth by the prosecution
do not rule out in absolute terms the hypothesis of the innocence
of the appellant. We thus consider it to be wholly unsafe to
maintain his conviction as recorded by the courts below. We are
therefore inclined to extend benefit of doubt to him. The
conclusions drawn by the courts below are not tenable on the
basis of the evidence available. The appeal is thus allowed and
the conviction and sentence recorded by the courts below is
hereby set aside. The appellant be released from the jail
forthwith if he is not required in any other case.
…….....……………………..….J.
(PINAKI CHANDRA GHOSE)
……....……………………..….J.
NEW DELHI; (AMITAVA ROY)
OCTOBER 3, 2016.
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