Jagadeesh v. State of Kerala

## **THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA THURSDAY, THE 7[TH] DAY OF SEPTEMBER 2023 / 16TH BHADRA,** **1945** **CRL.A NO. 929 OF 2017** **AGAINST THE JUDGMENT DATED 18.12.2014 IN SC 42/2014 OF ADDITIONAL SESSIONS COURT, PALA** ## **APPELLANT/ACCUSED:** **JAGADEESH, AGED 21 YEARS, S/O. JAWAHAR, OZHUNGALIL HOUSE, ARAKULAM BHAGOM, ARAKULAM VILLAGE, IDUKKI DISTRICT.** **BY ADVS. SRI.C.M.TOMY SRI.BALU TOM SRI.MATHEW SKARIA SRI.MANU TOM** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI.E.C.BINEESH PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl. Appeal No.929 of 2017 ## P.B.SURESH KUMAR & C.S.SUDHA, JJ. ----------------------------------------------- ## Crl.Appeal No.929 of 2017 ----------------------------------------------- Dated this the 7[th] day of September, 2023. ## J U D G M E N T ## P.B.Suresh Kumar, J. The sole accused in S.C.No.42 of 2014 on the files of the Additional Sessions Court, Pala who stands convicted and sentenced for the offence punishable under Section 302 of the Indian Penal Code (IPC) is the appellant in this appeal instituted challenging his conviction and sentence in the said case. 2. The case relates to the death of one Appu. Appu was a daily labourer married to one Bindu. Appu had two children. Bindu is a native of Arakkulam. The accused, another daily labourer was a close friend of Appu. On 14.05.2013, Appu along with his wife and children shifted their residence to a portion of the building taken by them on rent at a place called Neeloor. The remaining portion of the building was used by the building owner to keep rubber sheets. The accused was also 3 Crl. Appeal No.929 of 2017 residing with the family of the deceased in the said rented house. The impression Bindu gave to the neighbours at that time was that the accused is her brother. On 06.09.2013, Bindu and her children went to their native place, Arakkulam. The accusation in the case is that Bindu had an extra-marital affair with the accused; that the accused desired to marry Bindu; that with the aforesaid desire in mind, the accused came to the rented house of the deceased with a bottle of liquor, had liquor with the deceased and at about 4.30 p.m., while the deceased was sitting on a chair in a state of intoxication, the accused strangulated him to death using a plastic rope. 3. A case was registered on the succeeding day at about 5.45 p.m. by Melukavu Police based on the information furnished by Bindu and after investigation, the police laid final report against the accused alleging commission of the offence punishable under Section 302 IPC. On committing the accused for trial to the Court of Session, as the accused pleaded non-guilty of the charge framed against him, the prosecution examined 17 witnesses as PW1 to PW17 and proved through them 28 documents as Exts.P1 to P28. MOs 1 4 Crl. Appeal No.929 of 2017 to 7 are the material objects in the case. 4. After the prosecution tendered its evidence, when the accused was questioned under Section 313 of the Code of Criminal Procedure (the Code), he denied the incriminating circumstances brought out in the evidence and maintained that he is innocent. Since the Court of Session did not consider the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter on his defence. The accused, however, chose not to adduce any evidence. The Court of Session, in the circumstances, on an appraisal of the materials on record, found the accused guilty of the offence punishable under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.50,000/-. The accused is aggrieved by the said decision of the Court of Session and hence, this appeal. 5. Heard the learned counsel for the appellant as also the learned Public Prosecutor. 6. There were no eyewitnesses to the occurrence. The prosecution relied on a few circumstances to prove the guilt of the accused. The main contention advanced by the Crl. Appeal No.929 of 2017 5 learned counsel for the accused is that the evidence let in by the prosecution would indicate that the death of the victim was not at the time as alleged by the prosecution in the final report and that the death occurred on the succeeding day while the deceased was being taken to the hospital, and if the death occurred while the deceased was being taken to the hospital, the accused is liable to be acquitted on that sole ground. The point canvassed by the learned counsel in this regard is that in a case where the prosecution leads two sets of evidence, each one of which contradicts the other, the accused cannot be convicted. The learned counsel relied on the decision of the Apex Court in Harchand Singh v. State of Haryana , (1974) 3 SCC 397, in support of the said argument. Per contra, the learned Public Prosecutor contended that there is no inconsistency in the facts established by the prosecution, and the circumstances proved by the prosecution would not only establish the guilt of the accused beyond reasonable doubt, but would also rule out any other possibility as to the cause of the death of the deceased. The learned Public Prosecutor narrated in detail the various circumstances established by the 6 Crl. Appeal No.929 of 2017 prosecution. We are not referring to the said circumstances here as we propose to deal with the same elaborately in the latter part of this judgment. The upshot of the arguments of the learned Public Prosecutor is that the impugned judgment is in order and does not warrant interference by this Court in exercise of the appellate jurisdiction. 7. In the light of the submissions made by the learned counsel for the parties on either side, the only point that arises for consideration in the appeal is whether the conviction and sentence of the accused is sustainable in law. 8. The first and foremost aspect to be considered to deal with the point is whether the death is a homicide. PW10 is the doctor who conducted the post-mortem examination on the body of the deceased and issued Ext.P8 post-mortem certificate. The post-mortem examination was conducted between 11.30 a.m. and 12.30 p.m. on 08.09.2013. PW10 deposed that he found a faint pressure abrasion of 23 cm on the front and sides of the neck, with a discontinuity of 12.5 cm on the back of the neck. In addition, PW10 also deposed that he found an abrasion on the left side of the neck as also on the Crl. Appeal No.929 of 2017 7 ## right side of the neck. The description of the said three antemortem injuries found by PW10 as deposed in court reads thus: “1. A faint pressure abrasion 23cm was present on the front and sides of the neck, with a discontinuity of 12.5cm on the back of neck. It was placed over and above the thyroid cartilage, 5cm below the chin in midline, 1.5cm broad; 2.5cm below the right ear, 1.5cm broad and 3.5cm below the left ear, 2cm broad. On flap dissection of neck in a blood less field, the subcutaneous tissue underneath the pressure abrasion was dry. All other soft tissues bones, cartilages and carotids were intact and normal. 2. Abrasion 0.2x0.2cm on the left side of neck 4cm below the ear. 3. Abrasion0.5x0.5cm on the right side of front of neck, 1.5cm outer to midline and 1cm below the pressure abrasion (Injury No. 1)”. Ext.P9 series are the photographs of the body of the deceased taken at the time of the post-mortem examination. On the strength of Ext.P9 series photographs, PW10 also deposed that ligature marks were visible on the body of the deceased; that the death might have occurred 18 to 48 hours prior to the postmortem examination and that the faint pressure abrasion noted by him on the neck of the deceased could be caused by the use of MO1 plastic rope. The opinion as to the cause of death 8 Crl. Appeal No.929 of 2017 deposed by PW10 was that “post-mortem findings are consistent with death due to constriction force around the neck”. A reading of the cross-examination of PW10 would indicate that the attempt of the counsel for the accused was to establish that the death of the victim was within 24 hours of the post-mortem. The only question put to PW10 by the learned counsel in order to challenge the evidence given by PW10 as to the cause of death is the suggestion that injury No.1 is possible by a fall from a higher level to a lower level, and the said suggestion was emphatically denied by PW10. Needless to say, it has been established by the prosecution beyond reasonable doubt that the death of Appu is a homicide. 9. The next aspect to be examined is whether the circumstances brought out in evidence by the prosecution would establish that it is the accused who caused the death of the victim beyond reasonable doubt. It is necessary to examine meticulously the evidence let in by the prosecution for the said purpose. Before we proceed to do so, we deem it appropriate to keep in mind the requirements of law as regards the appreciation of evidence in a case on circumstantial evidence. 9 Crl. Appeal No.929 of 2017 It is trite that in a case on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn shall be of conclusive nature; that the circumstances shall be fully established; that the circumstances so established shall be consistent with the hypothesis of the guilt of the accused, that is to say, they shall not be explainable on any other hypothesis and that there shall 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 shall also show that in all human probability, the death must have been caused by the accused. 10. Let us now appreciate the evidence let in by the prosecution. PW1 is Bindu, the wife of the deceased. Ext.P1 is the First Information Statement of PW1. PW1 deposed that on 07.09.2013, her house owner called and informed her that her husband is not to be seen in the house; that rubber sheets kept in the house are missing and that if she does not turn up, he will inform the matter to the police. PW1 deposed that she reached home along with the accused in the light of the said telephone call at about 1.30 p.m.; that as there was no 10 Crl. Appeal No.929 of 2017 response when she called out her husband, they opened the door of the house and then they found the deceased lying on the floor. PW1 deposed that though she called her husband, he did not respond; that she then called one Sabu who, in turn, informed the matter to the house owner and with the help of the house owner, they took her husband to the hospital. PW1 admitted in her evidence that the accused was residing in her house and that she used to tell others that he is her brother, denying any relationship with him. 11. PW3 is the rubber tapper of the house owner. PW3 deposed that on 06.09.2013, he saw the deceased consuming liquor in the company of the accused and that they shared liquor with him also. PW3 deposed that he then went to the house of Sabu, the immediate neighbour of the deceased for purchasing eggs and that when Sabu, who overheard the conversation of PW3, asked him as to the persons with whom he was talking, he told Sabu that he was talking with the accused and the deceased. PW3 deposed that on the morning of the following day, when he reached the house where the deceased was residing to verify the rubber sheets kept therein, 11 Crl. Appeal No.929 of 2017 the deceased did not respond, though he called him. PW3 deposed that his employer then telephoned the deceased and after sometime, when he went inside the house along with the accused, he found the body of the deceased lying on the floor. PW4 is Sabu from whom PW3 purchased eggs on 06.09.2013 after drinking liquor with the accused and the deceased. PW4 deposed that he was in his house at about 2 p.m. on 06.09.2013; that PW3 came to his house at that time for purchasing eggs after his tapping work and that since he heard PW3 talking to somebody else, he asked PW3 as regards the persons with whom he was talking and PW3 told him that it was the accused and the deceased. PW4 deposed that at about 4.30 p.m. on the same day, when he was standing near his house, he saw the accused coming out of the rented building of the deceased in a hurried manner without talking to anyone. PW4 deposed that on the afternoon of the following day by about 1.30 p.m., PW1 called him to her house and when he went there, he found the deceased lying on the floor. PW4 deposed that he then informed the matter to the house owner and on his arrival, with his help, he along with PW1 took the 12 Crl. Appeal No.929 of 2017 deceased to the hospital. PW4 deposed that when they reached the hospital, they realised that the victim is no more. PW3 and PW4 have also deposed that after a few days, the police brought the accused to the rented house of the deceased and they saw the accused taking out MO1 rope from a plastic sheet ceiling in the attic of the building. Both PW3 and PW4 are attestors to Ext.P5 mahazar prepared in connection with the seizure of MO1 rope. 12. PW5 is an attestor to the rent deed executed between the deceased and the house owner. Ext.P7 is the rent deed. PW5 deposed that on 06.09.2013, while he was returning to his house with a person named Zen, he saw the accused coming from the opposite direction near Neeloor Parish Church. PW5 deposed that though the accused used to talk to him, the accused evaded him on that day. PW5 deposed that on the succeeding day, he went to the house of the deceased and took the deceased to the hospital along with PW1 and PW4. PW6 is the house owner of the deceased. PW6 deposed that on 06.09.2013, when he called the deceased while searching for the missing rubber sheets, the deceased did not respond. PW6 13 Crl. Appeal No.929 of 2017 deposed that he then called the accused and asked him to come to the house and after sometime, PW4 called him to the rented house and when he went there, he found the deceased lying on the floor. PW6 deposed that he made arrangements for PW1 and others to take the deceased to the hospital. PW6 deposed that he was following PW1 in another vehicle when PW1 took the deceased to the hospital and on his way, he was informed that the victim is no more. PW6 deposed that later on 11.09.2013, the accused came to his house and stated that he committed a blunder and asked him whether he would help him. PW6 deposed that when he asked the accused as to what is the matter, he told him that he would reveal the same later. 13. PW16 is the Sub Inspector of police who recorded Ext.P1 First Information Statement from PW1 and registered Ext.P13 First Information Report. PW16 is the police officer who conducted the initial investigation in the case. PW16 deposed that he arrested the accused on 13.09.2013. PW16 deposed that even though he conducted a thorough search in the house of the deceased, he did not see MO1 plastic rope. 14 Crl. Appeal No.929 of 2017 14. PW17 is the investigation officer in the case. PW17 deposed that during interrogation, the accused informed him that he had concealed a plastic rope at a place in the rented house of the deceased and that he can hand over the same if he is taken to the said place. Ext.P18 is the disclosure statement made by the accused. PW17 deposed that on the basis of the said information, he took the accused to the rented house of the deceased and the accused took out MO1 rope from the plastic sheet ceiling in the attic of the building. PW17 deposed that it is on that basis that he seized MO1 plastic rope as per Ext.P5 mahazar. 15. Before proceeding further, it is necessary to deal with the contention advanced by the learned counsel for the accused that the death of the victim occurred not at 4.30 p.m. on 06.09.2013 as alleged by the prosecution, but sometime after 1.30 p.m. on 07.09.2013 while the deceased was being taken to the hospital. The arguments raised by the learned counsel for the accused in support of the said contention is mainly that PW1 has stated in her deposition that when she found the deceased lying on the floor, the body was 15 Crl. Appeal No.929 of 2017 warm and it is on account of the said reason that she took the deceased to the hospital. According to the learned counsel, had this been a case where the death occurred on 06.09.2013, the body would not have been warm as claimed by PW1. Another argument raised by the learned counsel in support of the said contention is the deposition of PW6 that it was only while he was proceeding to the hospital, he was informed that the victim passed away. Yet another argument advanced by the learned counsel for the accused in support of the said contention is that the prosecution has not established as to when the death occurred and that the records of the hospital to which the deceased was taken, would have disclosed the fact whether the the victim was brought dead or otherwise and the prosecution has withheld the same for reasons best known to them. 16. There is absolutely no basis for the argument raised based on the evidence tendered by PW6, for what PW6 has stated in his deposition is only what was conveyed to him by the persons who took the deceased to the hospital. The said part of deposition is that “jeep മൻപ� പ��യ�. ഞങൾ ��ന�ല� എല� 16 Crl. Appeal No.929 of 2017 വണ�യ�ൽ പ��യ�. ഞങൾ ���� അടക�റ�യപ��ൾ അപ മര�ച എന� ഞങൾ അറ�ഞ.” PW6 did not say that the victim died on the way to the hospital. True, after death, the body commences to lose its animal heat and gradually attains the same temperature as that of its surroundings, but the rate of cooling of the body would certainly be influenced by causes such as age, condition of the body, manner of death and surroundings of the body. Similarly, middle-aged bodies cool slower than bodies of children and old people. Likewise, fat and well-nourished bodies retain heat much longer than lean and weakly bodies. Similarly, the cooling process of the body will be slow when death is resulted from asphyxia [See MODI A Textbook of Medical Jurisprudence and Toxicology, 25th edition (Chapter 15)]. In other words, merely for the reason that the body of the deceased was found warm, even if it is true, it cannot be said that the death had not taken place or that the death had taken place only within a few hours, especially since it has come out in evidence that the deceased is a moderately built and nourished middle-aged person. Be that as it may, as noted, PW10 doctor who conducted the post-mortem examination deposed that the 17 Crl. Appeal No.929 of 2017 death was due to constriction force applied on the neck. PW10 also deposed that the death might have occurred 18 to 48 hours prior to the post-mortem examination, and denied the suggestion that the death occurred within 24 hours. So long as the said evidence is not discredited, the learned counsel for the accused cannot be heard to contend that the death took place while the victim was being taken to the hospital. Therefore, if the death of the victim had not occurred while he was being taken to the hospital, the same is consistent with the other circumstances attempted to be proved by the prosecution. Of course, the prosecution could have made available the records of the hospital where the deceased was taken, to establish that he was brought dead there. But, merely for the reason that documents of the hospital were not produced, the case of the prosecution cannot be rejected. 17. As noticed, PWs 1 and 3 to 6 have not seen the occurrence. The prosecution has brought out only a few circumstances in their evidence. As far as PW1 is concerned, the Public Prosecutor has also put to her questions with the permission of the court which might be put in cross- 18 Crl. Appeal No.929 of 2017 examination by the adverse party. On a scrutiny of the evidence tendered by PWs 1 and 3 to 6, we do not find that the accused has brought out anything in their cross-examination to doubt the veracity of the evidence tendered by the said witnesses as referred to in the preceding paragraphs. The evidence of the said witnesses appeared to us to be real and natural. Even though a few questions were put to PW6 by the counsel for the accused in cross-examination on the premise that he did not state to the police that the accused had stated to him that he committed a blunder and sought his help on 11.09.2013, there was no attempt to prove the omission, if any, while cross-examining the investigating officer. The circumstances brought out by the prosecution in its evidence therefore are (1) that the accused was seen in the company of the deceased at 12.30 p.m. on 06.09.2013 by PW3; (2) that the evidence tendered by PW3 in this regard was corroborated by PW4; (3) that nobody saw the deceased live thereafter; (4) that PW4 saw the accused leaving the house of the deceased at about 4.30 p.m. on 06.09.2013 in a hurried manner; (5) that PW5 saw the accused at about 5 p.m. on 06.09.2013 without 19 Crl. Appeal No.929 of 2017 giving face to him which is not his usual conduct; (6) that the body of the deceased was found on the following day at about 1.30 p.m. exactly at the place where he was found in the company of the accused on the previous day; (7) that the accused sought the help of PW6 on 11.09.2013 in connection with a blunder committed by him, even though he did not disclose the particulars to him and (8) that the accused knew the place where MO1 plastic rope was kept in the house of the deceased with which it was possible to cause the injury noted by PW10 on the body of the deceased at the time of postmortem examination. It is relevant to note in this context that inasmuch as the evidence tendered by PW3 that he saw the accused consuming liquor in the company of the deceased on the previous day at the same place where the body was found on the succeeding day has not been discredited, it was obligatory for the learned counsel for the accused to offer an explanation as to when he left the company of the deceased and what was he doing till 1.30 p.m. on the following day when the deceased was found dead, for the same are facts which are exclusively within his domain of knowledge, and in terms of the 20 Crl. Appeal No.929 of 2017 provision contained in Section 106 of the Indian Evidence Act, the obligation to prove the said fact is on the accused and if he fails to offer a reasonable explanation in discharge of the burden placed on him, such failure by itself can provide an additional link in the chain of circumstances proved against him, although the circumstances of last seen together does not by itself necessarily lead to the inference that it is the accused who committed the crime [See Ram Gopal v. State of M.P. , (2023) 5 SCC 534 and Mohibur Rahman v. State of Assam , (2002) 6 SCC 715]. The accused however, did not offer any explanation in this regard when he was questioned under Section 313 of the Code. The circumstances aforesaid, coupled with the conduct of the accused in not offering any explanation as to when he left the company of the deceased and as to what he was doing until the deceased was found dead on the succeeding day, would establish beyond reasonable doubt that it is the accused who caused the death of the victim. 18. True, the motive of the accused in a case built on circumstantial evidence, is a matter of great importance. But, absence of the motive does not undermine the credibility 21 Crl. Appeal No.929 of 2017 of the prosecution case since the motive for committing a crime is something which is hidden in the mind of the accused. It is an onerous task for the prosecution to prove the motive to commit a crime and what could be done is only to point out the possible mens rea which could have been the cause for the crime and it is impossible to unravel the full dimension of the mental disposition of the offender towards the person whom he offended [See Praful Sudhakar Parab v. State of Maharashtra , (2016) 12 SCC 783 and Ravinder Kumar v. State of Punjab , (2001) 7 SCC 690]. It is therefore settled that if motive is proved in a case on circumstantial evidence, the same would supply an additional link in the chain of circumstantial evidence and the absence thereof, cannot be a ground to reject the prosecution case [See Paramjeet Singh v. State of Uttarakhand , (2010) 10 SCC 439]. Reverting to the facts of the case on hand, the motive attributed is that the wife of the deceased had an extra-marital affair with the accused. Although PW1 denied any such relationship with the accused, there are many things which would create a serious doubt as to the genuineness of the said statement made by PW1. First of all, there is absolutely 22 Crl. Appeal No.929 of 2017 no reason for PW1 to state incorrectly in Ext.P1 First Information Statement that the accused is her brother when she herself has admitted in her evidence that he is not her brother. Similarly, it has come out that the impression PW1 gave to her neighbours is also that the accused is her brother. Going by the evidence tendered by PW6, the fact that the deceased was found missing, was informed by PW6 only to the accused. But PW1 came to the rented house based on the said information received by the accused and took the stand that the matter was informed to her by the house owner. Even assuming that the matter was informed by the house owner to PW1 also, PW1 wanted the company of the accused as well to come to her rented house, as she admitted in her evidence that she in turn informed the matter to the accused. That apart, it has come out that PW1 was maintaining a strained relationship with the family of her husband and she returned home on the same day after the rituals in connection with the death of her husband, which is not consistent with the normal conduct of a widow in our society. The said circumstances, according to us, would point out a possible mental element of the accused 23 Crl. Appeal No.929 of 2017 which could have been the cause for the crime. Even if the said circumstances are held to be not sufficient to draw a possible mental element for commission of the crime, we are of the view that the circumstances established in the case are sufficient to prove the guilt of the accused beyond reasonable doubt. In the light of discussion aforesaid, we do not find any reason to interfere with the decision of the Court of Session. The appeal is accordingly, dismissed. Sd/- P.B.SURESH KUMAR, JUDGE. Sd/- C.S.SUDHA, JUDGE. Mn