KANNAN @ NACHIMUTHU v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943** **CRL.A NO. 1150 OF 2017** **AGAINST THE JUDGMENT IN SC 41/2016 OF DISTRICT COURT & SESSIONS** **COURT, PALAKKAD, PALAKKAD** ## **APPELLANT:** **KANNAN @ NACHIMUTHU, C.NO.550/17 S/O.PAZHANISWAMI, AGED 35/15, SELVAPURAM COLONY,AYYANKOVIL, SOMANNOOR, TAMIL NADU, (NOW IN CENTRAL PRISON & CORRECTIONAL HOME, KANNUR, KERALA, CONVICT NO.550/2017.** **BY ADV.A.S.FARIDIN (STATE BRIEF)** ## **RESPONDENT:** **STATE OF KERALA (REPRESENTED BY THE INSPECTOR OF POLICE, AGALI,CR.NO.188/2015 OF SHOLAYAR POLICE STATION,PALAGHAT.** ## **OTHER PRESENT:** **SPECIAL GOVERNMENT PLEADER FOR ATROCITIES AGAINST WOMEN AND CHILDREN SMT.AMBIKA DEVI.S** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04.08.2021, THE COURT ON 06.08.2021 DELIVERED THE FOLLOWING:** **Crl.A.No.1150 of 2017 2** **K.VINOD CHANDRAN & ZIYAD RAHMAN A.A, JJ - - - - - – - - - - - - - - - - - - - - Crl.A. No.1150 of 2017 - - - - - – - - - - - - - - - - - - - - Dated this the 06[th] August 2021** **K.VINOD CHANDRAN, J** **Alcohol drowns sorrows, but in the rich and poor alike, it let loose demons, often with dire consequences to women, who are sadly always at the receiving end. We have before us the story of an impecunious existence carried on with odd jobs, pockmarked with drunken revelry and discords, one of which instance culminated in the male partner beating up his female partner brutally, leading to her sad death.** **2. The prosecution case is that the accused and the deceased were living as husband and wife in a house owned by PW9. In the present and the earlier residence, there were allegations of constant quarrel between the pair. The accused used to remain away for construction work, for which he travelled to the neighbouring Malappuram District. On 17.06.2018, the accused in a drunken state approached the nearby shop of PW2 and purchased two sweets, in the course of which** **Crl.A.No.1150 of 2017 3** **he told PW2 that he had killed his wife, in the vernacular Tamil. Later, PW3 the son of PW2 also told her that he saw the accused, on his way, who told him the same thing. PW2 contacted PW1, who was an employee of the house owner and along with him went to the house rented out by the accused, where the deceased was found lying naked and dead, in a pool of blood.** **3. The case is built on circumstantial evidence and there is no ocular witness to the murder which happened in the closed confines of the rented house in which the accused and the deceased were living. Before the trial Court, the prosecution examined twenty-one witnesses, marked twenty-four exhibits and twenty-three material objects. The trial Court convicted the accused under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.1,00,000/-(Rupees One lakh only) with default sentence.** **4. We heard Sri.A.S Faridin, learned State Brief appearing for the appellant and Smt. Ambika Devi S, Special Govt. Pleader (Atrocities against women and children). The learned Counsel for the appellant** **Crl.A.No.1150 of 2017 4** **submits that PW1 who made the FIS, did it on mere hearsay and there was a delay in making it. PW2 says that she heard about the murder from the accused at around 6.30 but she makes no attempt to inform anybody till 7.30. Even after detecting the crime there was further delay in making the FIS before the Police Station, which was nearby. PWs 1 and 2 are not credible witnesses. The appellant has an alibi insofar as PW19 having deposed before Court that he had seen the accused going to Anaikatty. There is no blood detected on the brick pieces and there is no definite opinion given by the Doctor who conducted the postmortem as to how the death was caused. There is no complete chain of circumstances linking the accused to the crime and there is absolutely no motive projected other than frequent quarrels between the couple, which is natural in any relationship. The accused cannot be convicted on such skimpy evidence. In the context of there being no eyewitnesses, the appellant is entitled to benefit of doubt.** **5. The State seeks to uphold the conviction and sentence passed by the trial Court. It is argued that** **Crl.A.No.1150 of 2017 5** **PW1 made the FIS on the information supplied by PW2, after ensuring the veracity of what was stated by the accused to PW2. The accused made an extra-judicial confession to both PWs 2 and 3. Though a weak piece of evidence, PWs 2 and 3 had absolutely no axe to grind against the accused and it is one link in the chain of circumstances, which is complete and proves the intention very clearly. There is no alibi worth noticing since PW19 only says, when he saw the accused the accused told him that he was going to Anaikatty. This cannot lead to a presumption that the accused in fact proceeded to Anaikatty and was not present in his house, in the evening when the crime was committed. The accused has merely denied the incriminating materials put to him under S.313 and there is no explanation offered. As husband and wife residing in the building, he ought to have explained at least concerning his whereabouts on that day and proved it by worthy evidence.** **6. PW1 in the FIS itself spoke of PW2 having told him that, at around 6.30 in the evening of 17.06.2015 the accused purchased two sweets from her** **Crl.A.No.1150 of 2017 6** **shop, during the course of which he told PW2 that he has done away with Sarasa(the deceased). PW1 repeated the same before Court when he was examined. He also identified the wooden stick recovered from the scene of occurrence. He is an employee of the house owner from whom the accused had rented out the premises. There is a difference in the words said to have been used, as spoken of by PW1 in Ext.P1 and before Court; both essentially meaning 'took the life'. As has been argued by the learned Counsel for the appellant the statement in the FIS that the accused spoke of killing his wife is hearsay. Even according to him he heard it from PW2 and after ascertaining the veracity he had given the FIS using the very word spoken of by PW2. We find that PW2 in her evidence used the exact word seen in the FIS. PW1 hence would have committed a mistake when he recollected what was told to him and conveyed to the Police, but, the word used before Court essentially has the same meaning as that used in the FIS. In the immediate statement made before the police after the offence was detected he recited, as it was told to him by PW2. We find the mistake to be of no consequence.** **Crl.A.No.1150 of 2017 7** **7. PW2 is having a small shop attached to her house. She spoke of the accused coming to her shop and purchasing two sweets in the course of which he made the statement of having done away with his wife. PW2 also deposed that when the accused came to her shop and made the statement he was in a very intoxicated state. Later PW3, her son, also came and told her that the accused had told him that he killed his wife. She also spoke of the meaning of the term used by the accused. From the deposition of PW2, it is clear that she did not respond immediately to the statement made by the accused, presumably because he was in a drunken state. But, when her son-PW3 also informed her that the accused told him the same thing, she would have approached PW1 who was the employee of the house owner. PW1 in his cross-examination has also stated that he lives about ¾[th] of a kilometre from the scene of occurrence. PW2 in cross-examination deposed that the accused came to her shop at around 6.30 and PW1 said that he was informed of the crime by PW2 at around 7 - 7.30 and they together confirmed it within half-anhour, ie, around 7.30-8.00 in the night. Because PW2** **Crl.A.No.1150 of 2017 8** **was residing adjacent to the scene of occurrence and PW1 ¾[th ] of a kilometre away, as also the circumstance of PW2 being first informed by the accused himself and then by PW3, we do not see any inconsistency in the depositions of PWs 1 and 2 so as to disbelieve them. There is also no material available to merely label PWs 1 and 2 as not credible witnesses.** **8. PW3 corroborated the evidence of PW2, to** **the hilt. He was confronted by the accused near the shop of PW2. PW3 who was travelling on a bike was attempted to be stopped by the accused. When he refused to stop, the accused then told him that he killed Sarasa, using the identical word as spoken of by PW2. From the evidence of PWs 1 to 3 it has been established that the accused was in the vicinity of his rented accommodation and he had told both PWs 2 and 3 that he had killed his wife. PW2 in cross-examination marked Ext.D1 contradiction. As indicated in Ext.D1 she told the police that she had not gone to the house to see what happened on that day. This is not a material contradiction though before Court she stated that she looked through the window and saw the deceased sprawled** **Crl.A.No.1150 of 2017 9** **on the floor. It does not affect her version as to what was spoken by the accused or the information passed on to PW1. Ext.D1 contradiction by itself does not commend us to discard the evidence of PW2 in its entirety. That the victim was killed inside her house is not disputed at all.** **9. PW4 was the witness in Ext.P3 Inquest Report and he attested the seizure of MO-1 wooden stick and MO-5 series which are two brick pieces found in the scene of occurrence near the dead body, at the time of inquest. PW5 is the son of the previous house owner of the accused and the deceased. He deposed that his father evicted the couple due to frequent drunken quarrels between them. He denied his statement before Police (Ext.P2) that he had heard his father saying that the accused often physically assaulted the deceased. PW6 is a relative of the deceased who deposed that the deceased used to visit his house on special occasions and the couple were on cordial terms. Admittedly, he is not residing nearby and is a relative who sees the couple only on special occasions. PW7 is the first husband of the deceased and PW8 is her son in** ## **Crl.A.No.1150 of 2017 10** **the first marriage. PW9 is the house owner who affirmed that the house was rented out but was not aware of the details since her estate and its affairs were looked after by her husband. PW10 is the Grama Panchayat Secretary who marked Ext.P4 ownership certificate which was in the name of PW9. PW11 is the Village Officer who prepared Ext.P5 scene plan which indicates that the house of PW2 is just adjacent to the scene of occurrence.** **10. PW12 is the Asst. Sub Inspector who took the FIS from PW1. He was informed of a murder that happened at Kottathara near the ration shop adjacent to Arogyamatha School. He reached the Police Station at around 11.45 p.m where PW1 gave his FIS. This explains the delay alleged, if at all any. Having ascertained the crime there is no warrant to assume that the locals would immediately rush to a Police Station. We have to especially notice that the persons involved are from the marginalized section of society who eke out their livelihood through odd jobs from the plantations, carrying on petty shops etc. Definitely, a furore would have been caused on the murder being detected.** ## **Crl.A.No.1150 of 2017 11** **Information was also passed on to the police over telephone, by PW19, as we will presently see. Upon which the person who was first summoned to the police station is PW1 who is the employee of the owner of the house in which the crime occurred; where the FIS was taken. The dead body having been first seen at around 7.30-8.00 p.m (PW1), on the same day at 11.45 p.m, FIS was given. We find no significant delay in making the FIS.** **11. PW19 is a neighbour of the accused and is an auto driver. He spoke of having seen the accused and the deceased at their house. In the afternoon he met the accused when he told him that he is proceeding to Anaikatty. Later at 7.00 p.m, he has informed by his wife that Saraswathy was lying dead in her house. He also says that he called on '100' to inform the police. We do not think there is any alibi as such proffered by PW19. The statement made by the accused does not necessarily indicate that he went to Anaikatty and was absent from the vicinity; whose presence is affirmed by PW2 and PW3.** **12. One other circumstance is the recovery** **Crl.A.No.1150 of 2017 12** **under S.27 of the Indian Evidence Act. As we noticed, the accused was arrested on 19.06.2015 at 13.00 hours from Kallakkara Ration Shop junction as is clear from Ext.P18 to P20; arrest memo, inspection memo and arrest intimation. The accused confessed as per Ext.P9(a). Having read the confession statement we do not agree with the learned Counsel for the appellant that without a translator being examined no credence can be placed on the recovery. The confession made is that 'I will take out the bedsheet and saree thrown away in a cover'. The statement is recorded in mixed Tamil and Malayalam. The locality of the scene of occurrence is populated by Tamil speaking people who have come there to work in the plantations. We specifically notice that many witnesses spoke in Tamil before Court and the deposition was recorded in Malayalam with the assistance of a Court staff who speaks both languages. The learned trial Judge has also recorded that the depositions were signed after it was translated in Tamil and read over to them. Though natives of Tamil Nadu, they are people settled down in Kerala and perforce their dialect would be influenced by the** **Crl.A.No.1150 of 2017 13** **vernacular Malayalam also. Accused is a person who is residing in Sholayur and often working at nearby Malappuram. He would have some knowledge of Malayalam and we find no reason to reject the recovery merely for the language employed in the confession statement.** **13. As per Ext.P9 seizure mahazar, the accused led the Police to a partly constructed house adjacent to the house of PW19. The interior of the partly constructed house was overgrown with shrubs from which a cover was recovered in which there was a bedsheet of ash and rose colour with black and white dots and bloodstains and a maroon saree with yellow checks which was damp. They were respectively marked as MO-8 and MO-2. PW16 was witness to Ext.P9 seizure mahazar by which the recovery pursuant to the confession statement was made. The saree was identified as that of the deceased by PW6, a relative of the deceased and her son, PW8.** **14. PW13 is a CPO who attested the recovery of Ext.P6 seizure mahazar by which the Scientific Assistant of the RFSL had taken the blood samples from the scene of occurrence. PW17 is the Scientific** **Crl.A.No.1150 of 2017 14** **Assistant who collected the samples from the scene of occurrence. And PW21 is the Scientific Officer who conducted the analysis. Ext.P24 is the FSL report which was marked by the Investigating Officer, PW20 and proved by PW21. In Ext.P24, item numbers 1, 2, 9, 11 to 13, 15 and 18 to 21 showed the presence of blood. The bloodstains in 1,2,9,11,12 and 18 were found to be of human origin and belong to Group A. Item No.1 and 2 are cotton gauze containing dark brown stains recovered from the scene of occurrence as per Ext.P6 seizure mahazar by PW17. The FSL report clearly indicates that the blood group of the deceased is 'A'. Item No.19 is MO-2 saree in which blood was detected, but insufficient to determine the origin or group. We have to notice that the recovery mahazar indicates that the saree recovered was damp, presumably for the reason of it having been washed before being thrown away in a cover. More importantly item No. 18 is the bed sheet recovered by Ext. P9 based on P9(a) confession statement. This was identified by PW16, witness to the mahazar. As per the FSL report, the bloodstains found in that sheet are of human origin and Group 'A'.** **Crl.A.No.1150 of 2017 15** **15. PW18 is the Doctor who conducted the postmortem. There were 38 antemortem injuries on the body of the deceased. Injuries number 1 to 14 were on the head and face and injury No.15 is one produced by throttling. The organs were said to be pale indicating huge blood loss. Injuries No.1 to 15 were opined to be sufficient in the ordinary course to cause death. The other injuries also collectively contributed to the cause of death was the medical opinion. The injuries were said to be possible either by MO-1 stick or MO-5 brick pieces shown to the Doctor. The chemical examination report at Ext.P13 and P13(a) indicates the group of the blood of accused to be 'A'. The medical opinion is conclusive as to the death having been caused by homicide. There is no ambiguity in the opinion since the doctor said that the injuries could be caused either with MO-1 wooden stick or MO-5 brick pieces. MO-5 series did not reveal any blood as per Ext.P24. But MO-1 stick was Item No. 15 in Ext.P24-FSL Report, which showed brown stains, tested as bloodstains; insufficient to determine the origin and group.** **Crl.A.No.1150 of 2017 16** **16. That the accused and the deceased were living together as a couple in the house of PW9, rented out, is well established. The deposition of the witnesses also speaks of frequent quarrels between the couple on which alone we do not find any specific motive. Motive though relevant in the chain of circumstances, even in the absence of that, if the chain is so complete as to bring home the guilt of the accused beyond reasonable doubt and exclude any hypothesis pointing to his innocence then, there is no difficulty in entering a conviction. Motive, immediate or antecedent is not a compulsory circumstance in a case built on circumstantial evidence. It is one circumstance that necessarily helps the Court to arrive at a conclusion of guilt or otherwise and is one of the factors to be considered in excluding any and every reasonable hypothesis consistent with the innocence of the accused. The principles for evaluation of evidence in a case purely dependent on the immediate and surrounding circumstances, have been laid down by the Supreme Court time and again and reiterated in** _**Kishore Chand v. State of H.P. (AIR 1990 SC 2140).**_ ## **Crl.A.No.1150 of 2017 17** _"In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis"._ **17. PWs2 and 3 had seen the accused in the vicinity of his house just before the discovery of the dead body. PWs 2 and 3 are not chance witnesses and their presence in the locality is natural for reason of their residence in that locality. The accused made** **Crl.A.No.1150 of 2017 18** **extra-judicial confession to both these persons probably in a drunken stupor, which is spoken of by PW2 and PW3. It was on the specific information passed on by the accused to PWs 2 and 3, that PW2 approached PW1, the employee of the house owner of the accused and the** **deceased.** _**Ishwari Lal Yadav v. State of Chhattisgarh, (2019) 10 SCC 437**_ **held so:** _21. The confessional statements made to the police by the appellants, cannot be the basis to prove the guilt of the accused but at the same time, there is no reason to discard the confessions made to the independent witnesses at the time when Chirag's body was found, prior to the arrival of police. It is true that - extra judicial confession, is a weak piece of evidence but at the same time if the same is corroborated by other evidence on record, such confession can be taken into consideration to prove the guilt of the accused. In the case on hand, the evidence from independent witnesses is in one voice and consistent. The medical evidence on record also substantiated the case of the prosecution. In addition to the same, PW 2 and PW 3, who are the parents of the deceased have identified the clothes, which the deceased child was wearing on the date of missing. It is also clear from the evidence that the skeletal remains were removed. They have also found the cloth pieces, attached to skeletal remains. The colour of such cloth pieces was tallied with the description in the missing report lodged by PW 2 earlier on 4-3-2010. As such it is clearly proved beyond any reasonable doubt that the appellants are responsible for the offence alleged against them._ _(underlining by us for emphasis)_ **Crl.A.No.1150 of 2017 19** **18. PW2 and 3 are independent witnesses, residents of the locality. The accused told them about the dastardly act committed by him in the identical words. The information conveyed by the accused led to the detection of the crime. The accused though present in the vicinity has no explanation as to how his wife met her death in a ghastly manner; beaten mercilessly and throttled. There is also the additional circumstance of a recovery having been made of a saree with bloodstains identified by the witnesses close to the deceased, as her own. And more importantly the bedsheet recovered under Section 27, revealed blood of the same group as the deceased. The recoveries under Section 27, pursuant to the confession statement made by the accused when in police custody as to the concealment of MO-2 & MO-8 and the scientific evidence from the FSL establish the culpability of the accused juxtaposed with the medical evidence as to cause of death.** **19. PW1 and PW2 first detected the crime and hearing about the same PW19 informed the police over the telephone. It was PW1 who went to the police** **Crl.A.No.1150 of 2017 20** **station late in the night and gave FIS at 11.45 p.m. PW1 being the employee of the house owner, PW9 and a resident of the locality was again a natural witness and the person best suited to give the FIS, being the person entrusted with the employer's affairs in the locality. From the circumstances proved by the prosecution, we are of the opinion that the murder of the wife is established to be at the hands of the husband. We have no hesitation to reject the appeal and affirm the conviction and sentence entered into by the trial Court.** **Ordered accordingly.** **Sd/K. Vinod Chandran Judge** **Sd/Ziyad Rahman A.A. Judge** ## **jma**