Jose @ Pappachan S/o Joseph v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 21ST DAY OF NOVEMBER 2012/30TH KARTHIKA 1934 CRL.A.No. 668 of 2008 ( ) ------------------------(SC.44/2006 of IInd ADDL. SESSIONS COURT, KOZHIKODE) APPELLANT(S)/I[st] ACCUSED: ------------ JOSE @ PAPPACHAN S/O. JOSEPH, EDATTANKUZHIYIL HOUSE KOORACHUND AMSOM DESOM, KALLANODE, 27TH MILE KOZHIKODE. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENT(S)/COMPLAINANT & STATE: -------------- 1. THE SUB INSPECTOR OF POLICE KOYILANDY, KOORACHUNDU POLICE STATION. 2. STATE OF KERALA REPRESENTED BY - PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADDL. DGP TOM JOSE PADINJAREKKARA, THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **M.SASIDHARAN NAMBIAR & C.T.RAVIKUMAR, JJ.** ---------------------------------------Crl.A.No.668 of 2008 ---------------------------------------Dated this the 21[st] day of November, 2012 ## **JUDGMENT** ## **Sasidharan Nambiar, J.** Appellant, the first accused in S.C.No.44 of 2006, was convicted by II Additional Sessions Judge, Kozhikode for the offence under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and a fine of Rs.10,000/-. The second accused was found not guilty of the offence and was acquitted. Appeal is filed challenging the conviction and the sentence. 2. Appellant was earlier a Police Constable. After a service of 13 years, he resigned and went abroad and was at Jiddah for about three years. Appellant married deceased Neena on 19.6.1986. Two children including DW1 Akhil, were born in that wedlock. Though appellant was originally residing in police quarters, later he constructed a house of his own. When he left India, his wife and children were residing in that house at Edattamkuzhi, 27[th] Mile. The Tharawad house of the appellant is situated near to that house. Appellant returned back from Jiddah on 22.8.2000. He took deceased Neena to `Potta Divine Retreat Centre' for one week's _Dyanam_ on 16.9.2000 and abruptly Crl.A.No.668/2008 2 returned on 19.9.2000. He got down from the bus at about 7 p.m. at the 27[th] Mile bus stop and along with the wife reached their house. Prosecution would allege that nobody had seen Neena alive thereafter. PW6 Mathan is having a tea shop near to the house of the appellant. After 9 p.m. appellant came to the shop of PW6, enquired whether he has closed the shop and walked towards his house. On the way, appellant raised voice stating that two persons were found coming from his house and they pushed him down. With the help of PW6 and others a search was conducted for them, which was in vain. The second accused, the brother of the appellant, also was one among the persons who participated the search. While so second accused felt pain on his chest. He was taken to the shop of PW6 and given hot water. Appellant sent PW6 to get medicine from his house. Appellant called PW7 Joy, who is having a jeep, to take second accused to the hospital. By the time PW7 reached the shop of PW6, PW6 had gone for getting the medicine. After PW6 returned with medicine, appellant asked him to get the prescription from his house so as to take the second accused to Medical College Hospital. PW6 along with PW7 went to the house of the appellant. The house was found kept opened and there was a kerosene lamp lighted. They could not find Neena, the wife of the appellant inside the house. They went towards the kitchen and found the deceased hanging in a saree in the work area. They came back to the Crl.A.No.668/2008 3 shop of PW6 and informed the appellant and others. By that time, a car came through that road. Appellant got it stopped and sent the second accused along with two others to the Medical College Hospital and thereafter came to his house along with PWs6 and 7. The appellant cut the saree, used as the ligature from the hook and untied the saree from the neck and took Neena in the jeep of PW7 to Medical College Hospital, Kozhikode where she was declared dead. The body was kept in the mortuary. As instructed by the appellant, PW1, his cousin brother, who accompanied them to the hospital and who was also present along with PWs 6 and 7 when deceased Neena was untied, reached Koorachund Police Station and furnished Ext.P1 F.I. Statement. It was recorded by PW21, the Head Constable who registered the crime, preparing Ext.P1(a) F.I.R, under Section 174 of the Code of Criminal Procedure being a case of unnatural death on 20.9.2000 at 9.30 a.m.. PW22, the Sub Inspector of Police, who took over the investigation, reached the Medical College Hospital and prepared Ext.P10 inquest report in the presence of PW19. He seized MOs 12 to 14, dresses found on the body at that time. He reached the house of the appellant and prepared Ext.P4 scene mahazar and seized MOs 5 to 7 pieces of saree found at the scene of occurrence, which was used as the ligature and was cut by the appellant and kept at the scene of occurrence. MO4 plastic rope found in the dining room was also seized. So also, MO1 series of Crl.A.No.668/2008 4 broken pieces of glass bangles and the traces of blood found on the wall and MOs 8 to 11 were seized. On the requisition of PW22, PW20 Dr.Hithesh Sankar, attached to the Department of Forensic Medicine, Medical College, Kozhikode, conducted the autopsy and prepared Ext.P11 postmortem certificate that the postmortem findings are consistent with death due to strangulation, followed by hanging and facial injuries are suggestive of attempted smothering. PW23, the Circle Inspector of Police, took over the investigation on 21.9.2000. He inspected the scene of occurrence and finding some omissions in Ext.P4 scene mahazar, prepared Ext.P9 observation mahazar. On questioning the witnesses, finding that an offence under Section 498A was committed, Ext.P12 report was submitted incorporating that offence and requesting to transfer the F.I.R and the records from the court of Executive Magistrate, Koyilandy to Judicial First Class Magistrate, Perambra. On 21.9.2000 at 7 p.m. PW23 arrested the appellant. As injuries were found on his forearm, he was got examined by PW16 Assistant Surgeon, who prepared Ext.P6 wound certificate. PW22 continued the investigation and submitted Ext.P18 report incorporating the offence under Section 302 IPC also. He arrested the second accused on 15.11.2000 and got him examined by PW16, who prepared Ext.P7 wound certificate. After the transfer of PW23, PW24, the successor Circle Inspector, took over the investigation. After obtaining Crl.A.No.668/2008 5 Ext.P20 certificate of chemical analysis, PW24 laid the final report before Judicial First Class Magistrate-I, Perambra, who committed the case to Sessions Court, Kozhikode. The learned Sessions Judge made over the case for trial to II Additional Sessions Court, Kozhikode. Both the accused were defended by counsel of their choice. 3. When charge for the offence under Section 302 read with Section 34 and Section 498A read with Section 34 were framed and read over, the accused pleaded not guilty. Prosecution examined 25 witnesses and marked 21 exhibits. MOs 1 to 14 were identified. While cross examining PWs7 and 12 Exts.D1 and D2 portions of their statements recorded under Section 161 Cr.P.C. were confronted and marked. After closing the prosecution evidence the accused were questioned under Section 313 Cr.P.C. The accused denied the incriminating evidence put to them. Appellant, in addition, filed a written statement contending that his relationship with his wife was very cordial till her death and while he was abroad he used to send money for the expenditure of his wife and children and the wife used to write letters and as there was no sufficient opportunity for prayers at Gulf, at the instance of the wife appellant took her to `Potta Divine Retreat Centre' on 16.9.2000 for one week and returned back on 19.9.2000. He along with the wife got down from the bus at 27[th] Mile Crl.A.No.668/2008 6 bus stop at 7.30 p.m.. Their eldest son Akhil, who was later examined as DW1, was there purchasing articles in the nearby shop. Finding the son, appellant sent the wife along with him to the house and with the intention to arrange workers in the rubber plantation, had gone to engage the workers for the next day. He met Mullakkara Kunjumon, Sainaba, Jameela and Palliparambil Thankan and engaged them for work on the next day. Thereafter, to engage Edattankuzhi Jose, appellant along with Thankan went to his house. When they reached there, it was informed that Jose had gone for a meeting and will return only by 9 p.m. The appellant waited there till 9 p.m. and thereafter returned to the house. On the way to his house, two persons came from the side of his house and they pushed him down and ran away. When the appellant raised hue and cry, people gathered there. Though appellant with their help searched for the two persons, search was in vain. By that time, his brother, second accused Benny, sustained chest pain. As second accused is to be taken to a hospital, appellant sent PW6 Mathan, PW7 Joy and PW1 Papputty to his house to get the prescription kept at the house. Hearing their cry, appellant along with Anikkal Babu and Thankan rushed to the house. On reaching the house they found PW7 and PW1, standing near Neena, catching her legs and Neena was found hanging in a saree. To save her appellant took a knife and cut the saree. She was taken in the jeep first to Thalayad hospital and Crl.A.No.668/2008 7 thereafter to Medical College Hospital, Kozhikode. On examination, the doctor at Medical College Hospital declared her dead. The body was cremated on the next day. Because of the immoral life of PW5 Bindu, the sister of Neena, the relationship of the appellant with the family of Neena was not cordial. It is due to that enmity, people on inimical terms to the appellant formed an action committee. They influenced the police and foisted a case against the appellant. Appellant has nothing to do with the death of his wife. After six years of the death of the wife, at the insistence of his parents, to protect and safeguard the children, appellant married one Vattappallil Anna of Paithotur and she is now looking after the appellant and the two children. 4. The learned Additional Sessions Judge finding that the accused cannot be acquitted under Section 232 Cr.P.C., in the light of the evidence on record, called upon them to enter on their defence and adduce evidence. Appellant then examined his elder son as DW1 and got himself examined as DW2 and also examined Babu who participated in the alleged search as DW3. Exts.D3 to D6 were also got marked. The learned Additional Sessions Judge, on the evidence, found no material connecting the second accused with the offences and therefore, acquitted the second accused. The learned Additional Sessions Judge also found that there is no evidence to prove the Crl.A.No.668/2008 8 offence under Section 498A IPC and appellant was therefore acquitted of the said offence. But, relying on the circumstantial evidence it was found that appellant caused the murder of his wife Neena, by strangulation and smothering and hanging and thereby committed the offence under Section 302 IPC. He was convicted and sentenced as stated earlier. It is challenged in the appeal. 5. Learned counsel appearing for the appellant vehemently argued that the learned Additional Sessions Judge did not properly appreciate the evidence. It was argued that the prosecution did not establish that death of Neena, the wife of the appellant, was homicide and from the evidence of PW20 and Ext.P11 postmortem certificate, it is clear that it was not a case of homicide. The learned counsel also argued that from the nature of the ante-mortem injuries sustained, it is clear that it is not a case of homicide but suicide. The learned counsel also argued that even if it is a case of homicide, when there is no direct evidence and the prosecution is relying only on circumstantial evidence, unless every link in the chain of circumstances is fully established and the circumstances so established unerringly point out the guilt of the appellant, when the circumstances are not incompatible with the innocence of the appellant, the conviction is not sustainable. The learned counsel argued that the evidence of PW1 is contrary to his Crl.A.No.668/2008 9 version recorded in Ext.P1 and though contrary version was later recorded by the police four years after the incident, the evidence of PW1 to the contrary seen in Ext.P1, should not have been accepted. The learned counsel argued that it is the same case with the evidence of PWs 6 and 7. It was pointed out that the version of PW6 at the time of inquest as proved by the evidence of PW20, was contrary to his version given from the witness box and though the new version was in consonance with the statement recorded later after four years, on the evidence, the second version should not have been relied on. It was also argued that evidence of PW7 also show that his version in Exts.D1 to D1(b) portions of statements recorded under Section 161 Cr.P.C. are not in conformity with the evidence from the box and though PW1, PW6 and PW7 deposed that they believed the appellant and had given a version contrary to the true version, their evidence cannot be believed. The learned counsel argued that the evidence of DW1, the son of the deceased, establish that after the appellant and his wife got down from the bus, appellant sent the wife along with DW1 to the house and when DW1 left the house the mother alone was in the house and there is no evidence to prove that appellant reached the house thereafter, before the body was found. It is therefore, argued that the last seen theory cannot be applied in this case as by the evidence of DW1 it was DW1 who was last seen alive with deceased mother. The learned counsel Crl.A.No.668/2008 10 also argued that the evidence of PW3 corroborates the evidence of DW1 that they made search for the two persons who came along the way and pushed down the appellant and when the appellant was a loving husband, there is no reason to cause the murder of his wife and in any case when the circumstances do not conclusively establish the guilt of the appellant, he is entitled to get at least the benefit of reasonable doubt. The learned counsel also argued that in any case, as is clear from Ext.P11 postmortem certificate, the deceased was having 71 Kgs. and appellant alone cannot lift her and hang her in the saree and when the second accused has already been acquitted and there is no evidence to prove that with the help of the second accused, appellant had hanged her in the hook using the saree as a ligature, conviction of the appellant is not sustainable. 6. Learned Public Prosecutor on the other hand argued that the evidence was properly appreciated by the learned Additional Sessions Judge. It was pointed out that the evidence of PW20 with Ext.P11 postmortem certificate conclusively establish that it was not a case of suicide but only homicide. The presence of the injuries surrounding the nose and the face are indicative of smothering and with the injuries found on the forehead, it is a case of homicide and not suicide. The learned Public Prosecutor argued that the evidence of the Crl.A.No.668/2008 11 doctor conclusively prove that death was caused due to strangulation and smothering and hanging and when the appellant and his wife alone were there in the house, appellant has a duty to explain what happened to his wife. It was argued that Section 106 of Indian Evidence Act, castes a duty on the appellant to explain what happened to his deceased wife and though a false plea of alibi was set up, there is no evidence in support of the said plea. The learned Public Prosecutor also pointed out that the fact that appellant was having illicit relationship with one lady by name Darly, as alleged by the prosecution is proved by the evidence of PWs 2 to 5, and that is further established from the fact that appellant married that lady later, as proved by the evidence of PW25 and Ext.P21(a) entry of the marriage register. The learned Public Prosecutor argued that appellant resigned from his job as a Police Constable and went to Jiddah at the instance of that lady and he returned back to India with the intention to cause her murder and for that purpose, under the guise that the wife is being taken to `Potta Divine Retreat Centre' for seven days, took her to Potta on 16.9.2000 and got her back on 19.9.2000. It was pointed out that the evidence of PW12 that appellant along with the deceased wife got down at 27[th] Mile on that evening by about 7 p.m., was not challenged and was admitted at the time of his examination under Section 313 Cr.P.C. and also when examined as DW2. It was pointed out that though appellant examined Crl.A.No.668/2008 12 DW1 to prove that the deceased was sent along with DW1, to the house and he did not accompany the wife, evidence of DW1 was rightly not believed by the learned Additional Sessions Judge. It was pointed out that the intention of DW1 to suppress facts and to give a false evidence in support of his father is evident from the fact that even though Ext.P21(a) entry establish that appellant had married Anna who is also having the name Darly, DW1 was not prepared to admit that fact, and it shows that he is not a trustworthy witness. It was also pointed out that the conduct of DW1, as disclosed from the box, is not that of an ordinary prudent son when his mother died as he does not enquire whether it is a homicide or suicide and his evidence shows that he was not concerned with that at all. It is therefore argued that the evidence of DW1 cannot be believed and if it is disbelieved, it can only be found that the appellant and the deceased alone were there in the house at that time, when the death occurred. The learned Public Prosecutor also argued that the conduct of the appellant, before and after the incident, further establish that it is the appellant and none else who committed the murder. It was pointed out that the evidence of PWs 1, 6 and 7 establish that even though appellant was aware of the death, he staged a drama by alleging that two persons pushed him down and sought their help and made search for them and later when a car came through that road, it was stopped and the second accused was sent to Crl.A.No.668/2008 13 the hospital along with two others, without trying to help the wife. It was pointed out that this conduct itself establish that appellant is the real culprit. It was also pointed out that appellant has no case that there was anybody else on inimical terms with the deceased who could have committed the murder and when the circumstances relied on by the learned Additional Sessions Judge conclusively establish that it is the appellant and none else committed the offence, there is no reason to interfere with the conviction. The learned Public Prosecutor also relied on the following decisions; **Sahadevan** v. **State rep. by Inspector of Police, Chennai (2003 KHC 774)** , **State of W.B.** v. **Mir Mohammad Omar and Others (2000 KHC 1735)** , **Haresh Mohandas Rajput** v. **State of Maharashtra (2011 KHC 4867)** , **State of Gujarat** v. **Anirudhsing and another (1997 KHC 983)** , **Nawal Prasad** v. **State (2010 KHC 7634)** and **State of Rajasthan** v. **Kashi Ram (2006 KHC 1587)** . 7. The fact that appellant married deceased Neena on 19.6.1986, as proved by Ext.P16 marriage certificate, was not disputed. Apart from DW1 another son was also born in that wedlock. Appellant was originally employed as a Police Constable. He resigned the job in 1997, after a service of 13 years, and left for Jiddah. While he was in Jiddah deceased Neena along with DW1 and the younger son were Crl.A.No.668/2008 14 residing in the house constructed by the appellant at Kallanode, 27[th] Mile. Appellant returned from Jiddah on 22.8.2000. He took Neena to `Potta Divine Retreat Centre', to attend “ _Dhyanam”_ for one week. While leaving the house appellant sent DW1 and his brother to the Tharwad house, disclosing that they will return only after one week. Appellant along with the deceased, did not complete the full course. He took her back on 19.9.2000. It is also admitted, at the time of questioning under Section 313 Cr.P.C. and examination of the appellant as DW2 and as deposed by PW12, that appellant and his wife got down from the bus at 27[th] Mile bus stop at about 7 p.m. on 19.9.2000. The fact that the body of Neena was found hanging in the work area of their house using saree as a ligature, when PWs 6 and 7 were sent by the appellant to that house to fetch the prescription relating to the treatment given to the second accused in order to take the second accused to the hospital was also admitted. The fact that appellant cut the saree used as the ligature in the presence of PWs 1, 6 and 7, removed the ligature and thereafter taken deceased Neena to Medical College Hospital from where she was declared dead was also not disputed. 8. The evidence of PW20 with Ext.P11 postmortem certificate establish that the following ante-mortem injuries were noted Crl.A.No.668/2008 15 at the time of autopsy: ## “ **B. NECK FINDINGS** **External** : Pressure abrasion brownish black 31cm long on upper part of neck 5cm below chin (2.5cm width) coursing transversely backwards to right side 7.5cm below ear (4cm width) and ends at back of neck 2cm outer to midline 6cm below occipital protuberance. On left side mark coursing obliquely upwards and backwards 3cm below ear (3cm width) and ends at mastoid process. There was another linear abrasion 4cm long on left side continuous with the mark on right side. There were multiple linear vertical abrasions directed upwards in between the linear abrasion and the mark on left side. Mark was absent for 9.5cm on left side of back of neck. Internal: Flap dissection of neck in bloodless field showed pale subcutaneous tissue underneath the pressure abrasion. There was infiltration of blood over an area 5x5x0.2cm on right sternothyroid muscle and 3x2x0.2cm on left sternothyroid muscle underneath the pressure abrasion. Greater horn of hyoid bone on left side fractured inward 1cm from its tip with infiltration of blood around. Superior horn of thyroid cartilage on both sides fractured with infiltration of blood around. ## **C. Other injuries - External** : 1. Contusion 1.5x1cm on right side of forehead 1.5cm outer to midline and 4cm above eyebrow. 2. Three linear abrasions over an area 1.5x1cm on right side of forehead 0.5cm outer to midline and 1.5cm above eyebrow. 3. Abrasion 0.5x0.3cm on right side of upper part of nose 1.2cm below root and 0.8cm outer to midline with contusion over an area 2x2cm around. Crl.A.No.668/2008 16 4. Abrasion 0.3x0.2cm on right side of nose 0.4cm below root and 0.1cm outer to midline. 5. Abrasion 0.3x0.3cm on midline of nose 3.5cm above tip. 6. Abrasion 0.5x0.4cm on left side of nose in parallel with injury No.5 and 0.2cm outer to midline. 7. Abrasion 0.3x0.3cm on right side of face 4cm outer to midline and 2.3cm above jaw margin. ## **Internal** 1. Scalp contusion 1x 0.5cm on right side of front of head, underneath the external injury No.1. 2. Scalp contusion 5x5cm on left side of front of head.” Based on the findings, PW20 recorded that the findings are consistent with death due to strangulation followed by hanging and the facial injuries are suggestive of attempted smothering. The argument of the learned counsel appearing for the appellant is that PW20 deposed that he cannot definitely say whether it is suicide or homicide and the findings in Ext.P11 are not consistent with the case of homicide and in any case the possibility of suicide cannot be ruled out. As rightly argued by the learned Public Prosecutor, the linear abrasions found on the upper part of the nose below the root of the nose and on the tip of the nose indicate the attempt to smother the deceased and they are not at all consistent with the theory of suicide. The evidence of PW20 Crl.A.No.668/2008 17 establish that the findings are consistent only with the theory of homicide and not suicide. Though it was argued that as ligature mark was not found encircling the neck and there was a gap on the ligature mark on the back side of the neck and therefore the finding that death was caused due to strangulation using MO4 rope cannot be correct, on the evidence, we cannot agree. In a case of strangulation presence of ligature mark encircling the whole neck is not mandatory. On appreciating the evidence of PW20 with the findings in Ext.P11, we have no hesitation to uphold the findings of learned Additional Sessions Judge that death of Neena was homicide and not suicide. 9. The question then is who is responsible for the homicide? There is no direct evidence. Prosecution is relying on the circumstantial evidence. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Those circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. Circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused Crl.A.No.668/2008 18 and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence. The conditions to be established for a successful conviction based on circumstantial evidence are laid down in **Sharad Birdhichand Sarda** v. **State of Maharashtra (1984 4 SCC 116)** as follows: - “(1) the circumstances from which the conclusion of guilt is to be drawn should be established. It may be noted here that this Court indicated that the circumstances concerned `must or should' and not `may be' established. There is not only a grammatical but a legal distinction between `may be proved' and “must be or should be proved” as was held by this Court in _**Shivaji Sahabrao Bobade**_ v. _**State of Maharashtra**_ **((1973) 2 SCC 793)** where the following observations were made: Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between `may be' and `must be' is long and divides vague conjectures from sure conclusions. - (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty. - (3) the circumstances should be of a conclusive nature and tendency. - (4) they should exclude every possible hypothesis except the one to be proved, and - (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the Crl.A.No.668/2008 19 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.” This dictum was followed in all the subsequent decisions and therefore, it is not necessary to multiply the authorities. 10. The evidence and the sufficiency of the circumstances relied on by the prosecution are to be appreciated in the light of the settled position. Before considering the evidence, certain aspects are to be borne in mind. Appellant was a Police Constable having an experience of 13 years. As DW2, he even claimed good service entry, while serving as a Police Constable. Appellant resigned and went abroad in 1997. Though appellant had denied the prosecution case that he was having illicit connection with a lady by name Darly while he was working as a Police Constable and on that account his relationship with his wife was not cordial, the fact that subsequently in 2006 appellant married Anna @ Darly, as proved by the evidence of PW25 and Ext.P21(a) entry of the marriage register, was not disputed. When PW25 was examined he deposed that he knew the appellant personally and it was the appellant who married Darly as seen in Ext.P21(a) entry. Appellant when questioned under Section 313 Cr.P.C. and the Crl.A.No.668/2008 20 incriminating evidence was put to him, admitted that there was a marriage as seen in Ext.P21(a) but, claimed that Jose mentioned therein is not himself. At the same time, when PW25 identified appellant as the bridegroom seen in Ext.P21(a), that fact was not challenged in cross examination. It is therefore absolutely clear that it was the appellant who married Anna @ Darly as seen in Ext.P21(a) entry. When DW1 was examined he admitted that the appellant is now living with that lady. As DW2, the appellant also admitted it at the time of the defence evidence. Though appellant had a case that, that Anna @ Darly is not the same Darly deposed by PWs 2 to 5, on the evidence, the learned Additional Sessions Judge rightly found that it is the same Darly, the second wife of the appellant. 11. Appellant had gone to Jiddah in 1997 and returned back on 22.8.2000. On 16.9.2000 appellant took Neena, his deceased wife along with him to attend prayers in the Divine Retreat Centre, Potta for one week. These facts are admitted. Fact that appellant had gone there with Neena to attend the prayers for a week is admitted by him when examined as DW2. DW1, the son deposed that he and his brother were sent to the Tharwad house by the appellant stating that the appellant will return only after a week from Potta. But, appellant did not remain in the Divine Retreat Centre for seven days. Instead he took Crl.A.No.668/2008 21 the wife and returned on the afternoon of 19.9.2000. He got down from the bus at 7 p.m. The evidence of PW12, the conductor of that bus, establish that fact. Appellant has a case that he did not go to the house along with Neena and instead he sent her along with DW1, who was found in a shop near to the bus stop at that time. The learned counsel vehemently argued that there is no reason to disbelieve the evidence of DW1 especially when the deceased is his own mother. We have scrutinized the evidence of DW1. True, a defence witness is entitled to an equal treatment, as that of the prosecution witness. That does not mean that the credibility of the witness and his trustworthiness is not to be weighed. The credibility and trustworthiness of the defence witness is to be tested on same crucible. The question is whether DW1 is a trustworthy witness. True, the deceased is his mother. But, appellant is his own father. He had already lost the mother and is only having his father. His eagerness to help the father in such circumstances could be appreciated. But, that does not mean that whatever DW1 deposed is to be swallowed. If we are to believe the evidence of DW1, he is insensitive to the death of his mother, which is not a probable and reasonable conduct of an ordinary prudent son. In spite of Ext.P21(a) which conclusively establish that the second wife of the appellant is Anna @ Darly, DW1 was not prepared to admit it and denied it. That itself establish that DW1 is not a trustworthy witness Crl.A.No.668/2008 22 and he is doing his part to save the appellant. DW1 deposed that he did not even enquire what happened to the mother. Proper appreciation of the evidence of DW1 establish that he is not a trustworthy witness. If the evidence of DW1 cannot be relied on, there is no other evidence to support the case of the appellant that he did not accompany the wife to their house. The evidence on the other hand establish that appellant after getting down at 27[th] Mile bus stop, went to the house with the wife. Nobody else had seen his wife alive thereafter. 12. As rightly argued by the learned Public Prosecutor, if the appellant was the person who was last seen with the deceased and nobody had seen the deceased alive thereafter, as provided under Section 106 of the Indian Evidence Act, appellant has a duty to explain what happened to his wife thereafter. The Supreme Court in **Joseph S/o.Kooveli Poulo** v. **State of Kerala ((200) 5 SCC 197)** in an identical case relying on the earlier decision in **State of Maharashtra** v. **Suresh (JT 1999 (9) SC 513)** held that Section 106 of the Indian Evidence Act is to be applied, and the absence of an explanation, is an additional link in the chain of circumstances. The Supreme Court in **State of Rajasthan** v. **Kashi Ram (2006 KHC 1587)** , analysing the earlier decisions on the point summarised the position as follows: Crl.A.No.668/2008 23 “24. It is not necessary to multiply with authorities. The principle is well settled. The provisions of S.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 S.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. S.106 does not shift the burden or proof in a criminal trial, which s 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 complete the chain. The principle has been succinctly stated in _**Re.Naina Mohd.**_ **(AIR 1960 Madras 218)** .” 13. The learned Additional Sessions Judge had taken the following circumstances pointing out the guilt of the appellant: - (1) Illegal intimacy of the appellant with Darly. - (2) Appellant with deceased Neena attended the prayers at Potta Divine Retreat Centre from 16.9.2000 till 19.9.2000 Crl.A.No.668/2008 24 and got down at 27[th] Mile at about 7 p.m.. Thereafter, deceased was not seen alive. It was the appellant who was last found alive with the deceased. - (3) Appellant had sent the children to the family house stating that they will return only after one week. But, appellant returned with the wife within two days. - (4) The whereabouts of the appellant after 7 p.m. till the presence of the appellant in the shop of PW6 was not explained. - (5) The appellant had not offered any satisfactory explanation as to how the deceased happened to be found hanging. The learned Public Prosecutor pointed out that there are additional circumstances indicating the guilt of the appellant. According to the learned Public Prosecutor, those circumstances are; the conduct of the appellant before and after the incident, the broken bangles found in the dining room indicating a struggle, the nail marks found on the forearm of the appellant indicating the resistance offered by the deceased and the plea of false alibi. 14. The argument of the learned counsel appearing for the appellant is that when PWs1, 6 and 7 had originally disclosed a different Crl.A.No.668/2008 25 version than the version given at the time of their examination in court, the trial court should not have relied on their evidence. The learned counsel relying on the decision of the Supreme Court in **A.Shankar** v. **State of Karnataka ((2011) 6 SCC 279)** argued that court has to form its opinion about the credibility of the witness and record a finding as to whether his evidence inspires confidence and though the marginal variations in the statements of a witness cannot be called as improvements and therefore that evidence cannot be relied on, the material contradictions cannot be ignored and when the evidence of PWs 1, 6 and 7 is put in a crucible to test the credibility, their evidence can never be accepted. True, the version of PW1 from the box is different from the version seen in Ext.P1. What was disclosed in Ext.P1 was that at about 10 p.m. on 19.9.2000 while sitting in the tea shop of PW6 at 27[th] Mile, the second accused had a chest pain and therefore to get the prescription so as to take him to the hospital, PW1 along with PW6 went to the house of the appellant. They found the doors of the house kept opened and Neena missing inside the house. On search she was found hanging in a saree on a hook in the work area. They cried and appellant along with Kunjumon, Reji and Thankan reached there. The ligature was cut and she was taken to Medical College Hospital. In Ext.P1 it was disclosed that PW1 had gone to the house along with PW6 to get the prescription of the second accused and then the body was Crl.A.No.668/2008 26 found hanging. That was the case deposed from the witness box also. Ext.P1 does not disclose that PW1 was sitting in the tea shop at the time when second accused developed chest pain. True, it was also not disclosed, when PW1 reached there. The evidence of PW1 from the box was that he was sleeping in his house and while so PW7 knocked the window and PW1 opened the door and found the appellant and PW7 and they disclosed that Neena is found hanging in the house and they went to the shop of PW6. Then a car came along that way and it was stopped and appellant sent the second accused along with two others to Medical College Hospital. Appellant along with PW1, PW6 and PW7 went to the house of the appellant. Reaching there, appellant cut the saree which was used as the ligature and thereafter took Neena in the jeep of PW7 to Medical College Hospital where Neena was declared dead. The evidence of PW1 shows that subsequent to Ext.P1 F.I. Statement, he had given a statement to the Investigating Officer in consonance with his version from the witness box. The evidence of PW1 is that after returning from the Medical College Hospital appellant wanted PW7 to inform the police. But, PW7 was not prepared for the same and therefore, appellant asked PW1 to inform the police as stated by him in Ext.P1 and it was as stated by the appellant, he had furnished Ext.P1 F.I. Statement. The evidence of PWs 6 and 7 also corroborate the evidence of PW1 that the version given by PW1 in Ext.P1 as well as the Crl.A.No.668/2008 27 first versions given by PWs 6 and 7 to the police were as instructed by the appellant. Their evidence establish that they were directed by the appellant that five persons should go Medical College Hospital on the next day to be present at the time of inquest. It is thus clear that appellant, who has the experience as a Police Constable, had taken all precautions to get his story disclosed at the time of inquest so as to avoid proper investigation. We have carefully gone through the evidence of PWs 1, 6 and 7. We find no reason to disbelieve their evidence. The evidence of PW6 prove that appellant came to the shop of PW6 and thereafter went towards his house and immediately returned stating that two persons had pushed him down and ran away and they came from his house and they are to be found out. That fact is further strengthened from the written statement of the appellant filed at the time of his examination under Section 313 Cr.P.C. as well as his version when he was examined as DW2. The said evidence establish that appellant represented to PWs 1, 6, 7 as well as others that, while he was going to the house two persons came from the side of his house and they pushed him down and they are strangers and they are to be apprehended and search was conducted. When the search was in vain and the second accused developed chest pain, they took him to the shop of PW6. The evidence of appellant as DW2 also corroborates the evidence of PW6 and PW7 that appellant sent PW6 to take medicine and Crl.A.No.668/2008 28 when he returned with the medicine, appellant sent PWs 6 and 7 to his house to get the prescription stating that the prescription is with Neena. Their evidence also show that appellant got the presence of PW7 procured to take the second accused to the hospital and PW6 was sent along with PW7 to get the prescription. PWs 6 and 7 reached the house of the appellant and found the body of Neena hanging on a saree in the work area. Evidence of PWs 6 and 7 establish that they informed the appellant. But the appellant instead of rushing to the house to find out what happened to his wife, sent the second accused in a car, which came along that way at that time, and then only proceeded to the house. This conduct of the appellant is not expected on an ordinary prudent husband if he was informed that his wife is found hanging. It is more so, if appellant had earlier seen two strangers near his house as stated by him to PW6 and others. The evidence of PW6 and PW7 is definitely a strong circumstance indicating the complicity of the appellant. 15. Being a Police Constable, appellant is having the basic knowledge of investigation. It could be that with that knowledge appellant insisted PW1 to give a different version as is seen in Ext.P1 as proved by the evidence of PW1 and corroborated by the evidence of PWs 6 and 7. Though appellant examined DW3 to support his case that Crl.A.No.668/2008 29 he met the two persons who allegedly pushed the appellant down, the fact that appellant disclosed such a story to PW6 and others is even otherwise clear from the evidence of PWs 6 and 7. If that case of the appellant was true, and if he had found two persons coming from his house as disclosed to PW6, in the ordinary human conduct when his wife alone is in the house appellant instead of following those two persons, would immediately rush to the house to find out what happened. The case of the appellant is not that he rushed to the house. Instead he went in search of the two persons and did not go to the house at all. The evidence of DW3 contradicts the evidence of the appellant as DW2. According to DW3, he found the search for the two persons and he also joined them. DW3 has no case that appellant enquired whether DW3 had seen the two persons running along the road. The evidence of DW2 is that when the appellant could not find the two persons and the search was in vain, he called DW3 and asked him whether he had seen the two persons and DW3 disclosed that he had seen the two persons. If that fact is true, DW3 would not have deposed otherwise. The evidence of DW3, instead corroborates the evidence of PWs 6 and 7 that as narrated by the appellant PWs 1, 6 and 7 had gone to the house of the appellant to get the prescription. 16. Even though it was argued that the first accused by Crl.A.No.668/2008 30 himself cannot hang the deceased, we find that no material was brought out in support of that plea. If deceased Neena was strangulated and became unconscious, possibility of the appellant by himself hanging her, using the saree as a ligature in the work area is not an impossibility. 17. The evidence conclusively prove that appellant was having illicit relationship with Darly even before he left to Jiddah. The evidence also prove that appellant decided to live with the said Darly and to eliminate Neena his wife, which is an obstacle to the said relationship. Appellant reached India during the last week of August 2000 and persuaded Neena to accompany him to Potta to attend the prayers for one week at Divine Retreat Centre. They reached the Divine Retreat Centre on 16.9.2000. Appellant took Neena back on 19.9.2000. They got down at 27[th] Mile bus stop at about 7 p.m.. Appellant along with Neena reached their house. Neena was not seen alive thereafter. Appellant who is bound to show what transpired thereafter, in the house where he and Neena alone were present, did not disclose what happened or offered satisfactory explanation. The false story of two persons pushing him down and escaping and the search are additional links in the chain of circumstances. The conduct of the appellant in not rushing to the house when two persons allegedly Crl.A.No.668/2008 31 found coming from the house is another additional link. Neena was found hanging in the work area. The conduct of the appellant in not rushing to the house immediately and instead sending the second accused to the hospital is not the conduct of a husband placed in such a situation, if he was told that his wife is found hanging in his house. Death of Neena was homicide. Except appellant nobody else was present there round about that time of death. The stage managed drama of two persons pushing him down, sending PW6 first to take medicine and then PWs 6 and 7 to his house was an attempt to make it appear that Neena committed suicide. After Neena was murdered appellant married Darly and they are now living together as husband and wife. All these circumstances are satisfactorily established. 18. As rightly found by the learned Sessions Judge, the proved circumstances conclusively point out the guilt of the appellant. Those circumstances form a complete chain and unerringly point out the guilt of the appellant and are incompatible with the innocence of the appellant and rules out the possibility of any other person committing the murder. In such circumstances, we have no hesitation to confirm the finding of the learned Additional Sessions Judge that it was the appellant who committed the murder of his wife Neena by strangulation, smothering and hanging. The offence comes under Crl.A.No.668/2008 32 Section 300 IPC as it is proved that appellant with the intention to cause the death of Neena, in order to live with Darly, with whom he had an illicit relationship, committed the murder by smothering, strangulation and hanging and none of the exceptions to Section 300 IPC is attracted. The conviction of the appellant for the offence under Section 302 IPC is therefore perfectly correct and warrants no interference. Learned Additional Sessions Judge only awarded the lesser sentence for the offence and therefore the sentence also warrants no interference. Confirming the conviction and sentence the appeal is dismissed. Sd/- **M.SASIDHARAN NAMBIAR Judge** Sd/- **C.T.RAVIKUMAR Judge** TKS