Aneesh @ Anu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 10TH DAY OF JUNE 2019 / 20TH JYAISHTA, 1941** **CRL.A.No. 1021 of 2015** **CP 54/2013 of JUDICIAL MAGISTRATE OF FIRST CLASS ,VAIKOM** **AGAINST THE JUDGMENT IN SC 294/2013 of ADDITIONAL DISTRICT SESSIONS COURT - V, KOTTAYAM DATED 10-10-2014** **CRIME NO. 497/2013 OF THALAYOLAPARAMBU POLICE STATION Kottayam** ## **APPELLANT/ACCUSED:** **ANEESH @ ANU AGED 34 YEARS S/O. SASIDHARAN, THAMARASSERI HOUSE, VARIKKAMKUNNU KARA, VELLOOR VILLAGE, KOTTAYAM DISTRICT.** **BY ADV. SRI.P.K.VARGHESE** ## **RESPONDENTS/COMPLAINANT/STATE:** **STATE OF KERALA, RERESENTED BY THE LEARNED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. SR.P.P.SRI.S.U.NAZAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.05.2019, THE COURT ON 10.06.2019 DELIVERED THE FOLLOWING:** Crl.Appeal No.1021/15 ## -:2:- ## **J U D G M E N T** ## _**Shaffique, J.**_ This appeal has been preferred by the appellant challenging the judgment of conviction and order of sentence passed by the 5[th] Additional District and Sessions Judge, Kottayam in S.C. No. 294 of 2013 dated 10/10/2014 arising out of Crime No.497 of 2013 by which he was found guilty for offence under Section 302 of the Indian Penal Code, 1860 (for short 'IPC') and was sentenced to suffer imprisonment for life and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand only) in default of which to undergo imprisonment for a period of one year. 2. Prosecution has projected the following case against the appellant: The appellant/accused is the son of the deceased Sasidharan. Both of them were residing together in the house situated at Varikkamkunnu kara. The wife of the deceased and his elder son were residing separately in a rented house. Earlier, they all were Crl.Appeal No.1021/15 -:3:- residing together. Due to the bad behaviour and habitual drunkenness of the deceased, they left him. The appellant was residing at his wife's house in Perumbalam. He left the house of his wife six months prior to the incident and started to stay with the deceased. Due to the enmity owing to misbehaviour of the deceased after consuming alcohol, on 09/07/2013 at 04.30 p.m., with an intention to commit murder of the deceased, the appellant/accused herein manhandled the victim and hit him with a hammer at their house situated in Ward No.XIV of Velloor Grama Panchayath in Velloor Village and voluntarily caused grievous hurt to his head above the left ear. The victim succumbed to the injuries. 3. Prosecution examined PW1 to PW11 as witnesses, marked documents Exts.P1 to P10 and identified MO1 to MO3 as material objects. After the closure of prosecution evidence, the appellant was questioned under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). He denied all incriminating circumstances against him. 4. Evidence adduced by the prosecution, for short, are as under: Crl.Appeal No.1021/15 -:4:- To prove the case against the appellant, prosecution mainly relied on the evidence of PW1 to PW3 and PW5. PW1 is a neighbour of the deceased. PW2 is also a neighbour. PW3 is the mother of PW1. PW4 is an attestor to Ext.P2 inquest report. PW5 is the elder brother of the appellant who was then residing with his mother in a rented house in the very same locality. PW6 is an attestor to Ext.P3 scene mahazar. PW7 is the Doctor who conducted autopsy on the body of the deceased. Ext.P4 is the post-mortem certificate issued by him. PW8 is the Village Officer who prepared Ext.P5 site plan on the basis of Ext.P3 scene mahazar. PW9 is the Scientific Assistant who collected various samples from the place of occurrence and he handed them over to PW11, the Investigating Officer. PW10 is the S.I. of Police, Thalayolaparambu who recorded Ext.P1 FIS of PW1 on 10/07/2013 based on which Ext.P1(a) FIR was registered. PW11 is the then C.I. of Police, Vaikom who conducted the investigation. He prepared Ext.P2 inquest report as per which MO1 hammer and MO3 blood-stained saffron dhothi were seized from the place of occurrence. Ext.P3 is the scene mahazar prepared by him. He arrested the appellant on 15/07/2013 from private bus stand at Trippunithura. Ext.P6 is the Crl.Appeal No.1021/15 -:5:- arrest memo and Ext.P7 is the inspection memo. Injuries were noted on the body of the accused/appellant. Ext.P8 is the report furnishing the name and address of the accused. Ext.P9 is the FSL report and Ext.P10 is the property list by which MO1 to MO3 were produced before Court. He completed the investigation and laid the charge-sheet. 5. Learned counsel appearing for and on behalf of the appellant Smt.Sanjana Rachel Jose argued that there is no evidence on record to connect the appellant with the crime. The case is based on circumstantial evidence as there is no eyewitness to the incident. Prosecution failed to adduce even a single piece of evidence to prove the motive for the crime. Admittedly, the appellant and the deceased are son and father and they were residing together. PW1, PW2, PW3 and PW5 are not trustworthy witnesses. It can be seen that there is no evidence to indicate that the appellant and the deceased were found together on the fateful day. Last seen together theory is not proved. The case of the prosecution is improved by witnesses as leading questions were even put to the witnesses to elicit crucial circumstances. Ext.P4 or evidence of PW7 did not reveal Crl.Appeal No.1021/15 -:6:- even the exact time of death. Court below committed grave error in convicting the appellant. She pleaded to acquit the appellant. 6. On the other hand, learned Senior Public Prosecutor Sri.S.U.Nazar argued that the case against the appellant is proved beyond reasonable doubt. PW1 to PW3 and PW5 deposed the circumstances that resulted in the death of the victim. Medical evidence corroborated the circumstances proved by the prosecution. The appellant was last seen together with the deceased on the fateful day and thereafter the dead body of the victim is seen. Circumstances proved by the prosecution when seen together forms a chain so connected that it unerringly points to the guilt of the appellant herein. Trial Court is fully justified in convicting the appellant. He pleaded to dismiss the appeal. 7. We heard both counsel in detail and perused the evidence on record. Two questions are to be decided in this case primarily. Firstly, whether the death of Sasidharan is a homicide as alleged by the prosecution. Secondly, whether sufficient evidence is available to hold that the appellant herein caused the death of the victim as alleged by the prosecution. Crl.Appeal No.1021/15 -:7:- 8. PW4 is an attestor to Ext.P2 inquest report prepared by PW11. Ext.P4 is the post-mortem report prepared by PW7 who conducted the autopsy of the victim on 11/07/2013 at 10.45 a.m. He deposed that he had noted the following ante-mortem injuries on the corpse of the deceased: _“1. Lacerated wound 2x0.2x1 cm horizontal on left side of forehead 7.5 cm outer to midline, and 1.3 cm above the eye brow._ _2. Lacerated wound 1.5x0.5x1 cm horizontal on left side of forehead 7 cm outer to midline, 0.5 cm above the eye brow._ _3. Contusion 5x1.5x0.5 cm vertical on left side of forehead 3 cm outer to midline and 6 cm above the eye brow._ _4. Lacerated wound 2x0.5x0.5 cm oblique on left side of head, 3.5 cm above top of the ear with abrasion 3x2.5 cm around. On dissection there was a contusion 12x10x0.5 cm beneath and left temporalis muscle showed contusion. Left temporal bone showed a depressed fracture 6x5 cm, 3 cm above top of the ear which was extended to left side of anterior cranial fossa and left middle cranial fossa. Dura was intact and more tense on left side. Subdural haemorrhage seen on undersurface of brain. Whole brain covered with a thin film of subarachnoid haemorrhage more over temporal lobes. Left fronto-temporal lobe showed a contusion 9x5x4 cm. Left basal ganglia showed multiple haemorrhagic contusions. Left lateral ventricle filled with blood clots. Brain (1300 gm) was oedematous_ Crl.Appeal No.1021/15 -:8:- _and showed features of intracranial tension._ _5. Lacerated wound 2x0.2x1 cm vertical on outer aspect of left elbow. Abraded contusion 4x3 cm around._ _6. Contusion 7x5x0.8 cm vertical on inner aspect of right forearm 8.5 cm above wrist._ _7. Abraded contusion 3.5x3 cm on right side of hip, 7.5 cm below top of hip bone._ _8. Abrasion 8.5x1 cm horizontal on right of hip 16 cm below top of hip bone._ _9. Abraded contusion 6.5x4 cm vertical on front of right knee._ _10. Abrasion 2x1.5 cm on front of top of right knee._ _11. Abrasion 2.3x1.2 cm oblique on top of left big toe, 2 cm above its tip._ _12. Abrasion 0.5x0.5 cm on top of left foot 1 cm above root of big toe._ _13. Abrasion 5x1.5 cm oblique on front of left knee._ _14. Abrasion 1.5x1.5 cm on lower inner aspect of left knee.”_ 14 ante-mortem injuries were noted out of which injury number 4 was fatal. Injury nos. 5 and 6 would be defensive wounds. Injury no.4 is a lacerated wound 2x0.5x0.05c.m. Obliquely placed on left side of head 3.5 c.m. above top of the ear. There was an abrasion 3x2.5 c.m. around the laceration. On dissection, there was a contusion 12x10x0.05 c.m beneath and the left temporal muscle showed contusion. Left temporal bone showed a depressed fracture 6x5 c.m. placed 3 c.m. above the top of the Crl.Appeal No.1021/15 -:9:- left ear which was extended to left side of anterior cranial fossa and to the left middle cranial fossa. Dura was in tact and more tense on left side subdural haemorrhage seen under the surface of brain. Whole brain was covered with a thin film of sub arachnoid haemorrhage. According to him, the deceased died due to blunt injury sustained to head (injury no.4). Injury no.4 is sufficient in the ordinary course of nature to cause death. The said injury and other injuries could be caused using MO1 hammer as weapon of offence. The evidence of these witnesses clearly establish that the deceased herein was Sasidharan and that his death was a homicide. 9. Coming to the next question, it is essential to look into the evidence of witnesses especially that of PW1, PW2, PW3 and PW5. 10. PW1 Ranjith deposed that the deceased Sasi was his neighbour and the appellant herein is the son of Sasi. On 09/07/2013 at 04.30 p.m., the incident took place. On 10/07/2013 by 12.00 p.m., the appellant came to his house and told him that on the previous day he had beaten his father. (“അചന തല�ന� Crl.Appeal No.1021/15 -:10:- രണ�ണ� ണ��ടത). The appellant sat at their house. PW1 was engaged in tying the calf in the compound. It is his version that Sasi was in the habit of going to the junction through the front of their house. On that day, Sasi was not seen outside. PW1 went to the house of Sasi. At that time, he saw Sasi on his knees with his head on the cot, without wearing dress. Blood clotted on his forehead. There was blood on the cot also. PW1 went out and told the matter to CW4 Anoop, CW5 Anil and CW6 Vipin. They came and inspected. There was nobody else in the house of Sasi. The wife and other family members of Sasi left the house six months back and started staying in a rented house owing to the quarrelsome attitude of Sasi. The appellant and Sasi alone were staying in the said house. The wife of the appellant was staying at their house at Perumbalam. The appellant was also staying there. He came to the house of Sasi following quarrel six months back. On examination, they understood that Sasi was dead. PW1 went back to his house but he did not find the appellant there. On 10/07/2013 at about 02.30 p.m., he went to Thalayolaparambu Police Station and gave Ext.P1 FIS. He further stated that there were frequent quarrel between the appellant and the deceased. Crl.Appeal No.1021/15 -:11:- They did not interfere in the matter. During cross-examination, he admitted that he has not stated before police that the appellant came to his house and watched T.V. It is also brought out that he did not tell the police that the appellant toldo him that he (the appellant) had hit his father on the previous day of the incident. He pleaded ignorance as to with whom all Sasi made quarrel on that particular day. He also stated that he could not say who all had come to the house of Sasi on the date of incident. 11. PW2 Kanakamma stated that the house of Sasi is opposite to her house. The appellant is the second son of the deceased. The incident happened on 09/07/2013 at 04.30 p.m. she was standing at her courtyard. Then she heard hue and cry from the house of Sasi. Wife and elder son and daughter-in-law of Sasi was staying away in a rented house because of the quarrelsome nature of Sasi. To a leading question put by the learned Public Prosecutor, she replied that she had seen the appellant walking out from the house of Sasi. She also stated that at the relevant time, the appellant and Sasi were staying at that house. During cross-examination, PW2 admitted that Sasi was a drunkard and he was not in the habit of going for any job. The Crl.Appeal No.1021/15 -:12:- appellant and Sasi quarrels with each other and used foul language and hence PW2 had not gone there. She stated that she does not know who all visited the house of Sasi on that particular day. There was no door for the front door of the house of Sasi. 12. PW3 Radhamani stated that PW1 is her son. She is a neighbour of deceased Sasi. The appellant is the younger son of Sasi. The incident happened on 09/7/2013. On 10/07/2013 at 12.00 p.m., the appellant came to their house. At that time, besides PW2, PW1 and his wife were there. The appellant told her that he was on his way from Perumbalam. The appellant sat there and watched T.V. After some time, he left. The appellant did not say anything to her. Three leading questions were put to the witness and to all of them the witness said 'yes.' Accordingly, she agreed to the Prosecutor that she had asked the appellant why there was quarrel on the previous day. She also agreed with the Prosecutor that she had asked the appellant why his father was not seen outside. She also agreed with the suggestion that the appellant had told her that he had beaten his father. During cross-examination, she admitted that it was not possible to see from her house any thing that takes place in the house of the Crl.Appeal No.1021/15 -:13:- deceased. She stated that two times the appellant had come to her house on 10/07/2013 at around 12.30 p.m. She further stated that she had not given the statement to the police that she had seen the appellant before that. She agreed that if at all such a statement is seen written anywhere, it is false. 13. PW5 Rajesh deposed that deceased Sasi was his father and the appellant is his younger brother. On 10/07/2013 by 02.00 p.m., he came to know that his father is dead. On 09/07/2013 at about 07.00 p.m., the appellant had come to the rented house of PW5. It is the version of PW5 that the appellant had told him that he (the appellant) had quarrelled with father. PW5 added that it seems to him that the said statement was made referring to the date of incident in question. Quarrel took place at 04.00-04.30 p.m. The appellant had dinner from there and left in the morning. He stated that Sasi was a habitual drunkard and he was in the habit of picking up quarrel. Sasi and the appellant were staying together. When he saw the dead body, Sasi was naked and was bleeding. There was blood on the cot also. During crossexamination, PW5 stated that the appellant was frequently visiting his rented house to see his mother. He denied the Crl.Appeal No.1021/15 -:14:- suggestion that he was giving false evidence against the appellant with an eye to have the common property appropriated in his name. 14. The evidence of these witnesses when read together would not establish the crucial aspect that the deceased and the appellant were last seen together in the house of Sasi on the alleged date of incident. Though attempt was made to bring the same through leading questions, both PW1 and PW2 admitted that they did not give any such statement to the police. The version of witness that the appellant had told him that he had beaten his father is proved to be an omission which amounts to contradiction. PW2 did not have a case earlier that she had seen the appellant on the date of incident. Admittedly, according to PW5, the appellant was with them from 09/07/2013 07.00 p.m. to 10/07/2013 morning. PW5 himself stated that the appellant used to visit his mother who was staying with PW5 at their rented house. It can be seen that the actual time of death is not brought out in evidence by the prosecution. PW7 admitted that he had not noted the time of death in Ext.P4 certificate. This is a case which rests on circumstantial evidence. Hence, in the facts and Crl.Appeal No.1021/15 -:15:- circumstances of this case, the time of death also assumes relevance. None of the witnesses have a case that the appellant was last seen together with the deceased on the date of incident. They also stated that they could not say who all would have visited the deceased in his house on that day. The house in which Sasi was staying is one with no doors at the front. The alleged extra-judicial confession made by the appellant to PW1 is proved to be an omission which amounts to contradiction. Motive for the commission of the crime is not proved to the satisfaction of this Court. Even according to the prosecution, though the wife and elder son left the victim, the appellant herein was staying together with Sasi who was a habitual drunkard. Nothing is there to rule out the possibility of somebody else committing the crime. It casts serious doubt in the prosecution case. We are unable to agree with the finding of the learned Sessions Judge that the statement made by the appellant to PW1 that he had assaulted the deceased would come under Section 6 of the Indian Evidence Act, 1872 (for short 'Evidence Act'). As already elaborated, the said statement is found to be an omission. Also, the said statement allegedly made by the appellant to PW1 cannot be Crl.Appeal No.1021/15 -:16:- stated to be part of the same transaction. Law is clear in this point. A statement to be admissible under Section 6 of the Evidence Act, it should form part of the same transaction. 15. The Supreme Court in _**Gentela Vijayavardhan Rao**_ _**v. State of A.P.**_ [(1996) 6 SCC 241], paragraph 15 held as under:- _**“15.** The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In R. v. Lillyman a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time_ Crl.Appeal No.1021/15 ## -:17:- _lapsing between the act of rape and the making of the statement. Privy Council while considering the extent up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in Teper v. R. thus:_ _“The rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement.”_ _The correct legal position stated above needs no further elucidation”._ ## 16. In _**State of Maharashtra v. Kamal Ahmed**_ ## _**Mohammed Vakil Ansari**_ [(2013) 12 SCC 17], the Supreme ## Court after referring to S.6 of the Evidence Act held as under:- _“In our considered view, the test to determine admissibility under the rule of “res gestae” is embodied in words “are so connected with a fact in issue as to form a part of the same transaction”. It is therefore, that for describing the concept of “res gestae”, one would need to examine whether the fact is such as can be described by use of words/phrases_ Crl.Appeal No.1021/15 ## -:18:- _such as, “contemporaneously arising out of the occurrence”, “actions having a live link to the fact”, “acts perceived as a part of the occurrence”, exclamations (of hurt, seeking help, of disbelief, of cautioning, and the like) arising out of the fact, spontaneous reactions to a fact, and the like. It is difficult for us to describe Illustration (a) under Section 6 of the Evidence Act, specially in conjunction with the words “are so connected with a fact in issue as to form a part of the same transaction”, in a manner differently from the approach characterised above.”_ When a statement is made after considerable lapse of time or is polluted by deliberation, the same would become inadmissible under Section 6 of the Evidence Act. Utterances just before, during or immediately after the incident which are spontaneous outbursts of assailant or victim or even bystanders are admissible as _res gestae._ In the case on hand, by no stretch of imagination, the statement allegedly made by the appellant herein to PW1 would come under the purview of this Section. 17. The learned Public Prosecutor further argued that the appellant has to explain the circumstances which are within his special knowledge since last seen theory is proved in the case. But we do not find any evidence to conclude that the appellant and his father were last seen together in the house as alleged. Crl.Appeal No.1021/15 -:19:- ## The position of law is fairly settled by the Apex Court in a catena of decisions. In _**State of Rajasthan v. Kashi Ram**_ (AIR 2007 SC 144) at paragraphs 19 and 23, it was held thus:- _**“19** . Before adverting to the decisions relied upon by the counsel for the State, we may observe that whether an inference ought to be drawn under Section 106 IPC is a question which must be determined by reference to proved. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts”._ _**“23** . It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal_ Crl.Appeal No.1021/15 ## -:20:- _trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras 218”._ 18. In _**Rameshbhai Chandubhai Rathod v. State of**_ _**Gujarat**_ (2009 AIR SCW 3391), the Apex Court had reiterated the same principle placing reliance on _**State of U.P. v. Satish**_ [2005 (3) SCC 114], _**Ramreddy Rajeshkhanna Reddy v. State of A.P.**_ [2006 (10) SCC 172] and other judgments. 19. Since last seen theory is not proved in this case, statutory burden of proof under Section 106 is also out of context. 20. No scientific evidence in the form of FSL report, blood group analysis or DNA test report is adduced to connect the appellant with the crime. 21. Evidence adduced in the case is insufficient to hold the appellant guilty. It is well settled that in a case based on circumstantial evidence it is the burden of the prosecution to Crl.Appeal No.1021/15 -:21:- prove each and every chain of event beyond reasonable doubt and it should form a complete chain of events unerringly points to the guilt of the accused. Court can act upon evidence alone, not on mere assumption or suspicion. In the result, the appeal is allowed. Conviction and sentence passed by the trial Court is hereby set aside. The appellant is acquitted of charge levelled against him by extending benefit of doubt. He shall be released forthwith, if his presence is not required in connection with any other case. **Sd/-** ## **A.M.SHAFFIQUE** **JUDGE Sd/N.ANIL KUMAR** Rp //True Copy// **JUDGE** PS to Judge