Lakshmi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN** **FRIDAY, THE 12[TH] DAY OF NOVEMBER 2021 / 21ST KARTHIKA, 1943** **CRA(V) NO.1266 OF 2016** **AGAINST THE JUDGMENT IN S.C.NO.1168/2012 DATED 30.06.2016 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE-I, KASARAGOD.** **[C.P.NO.85/2012 DATED 03.09.2012 OF JUDICIAL FIRST CLASS MAGISTRATE-II, HOSDRUG] [CRIME NO.186/2012 OF BEKAL POLICE STATION, KASARAGOD]** ## **APPELLANT/ PW7/VICTIM & WIFE OF DECEASED:** **LAKSHMI, W/O.LATE BALAKRISHNAN NAIR, AGED 42 YEARS, R/AT ARIKKADI KUNNIL HOUSE, PANAYAL VILLAGE, KUMBLA, KASARAGOD.** **BY ADV SRI.KODOTH SREEDHARAN.** ## **RESPONDENTS/ COMPLIANANT & ACCUSED:** - **1 STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, HOSDURG, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 BALAKRISHNAN NAMBIAR, AGED 56 YEARS,** - **R/AT KUNHITHOTTI HOUSE, THOOVAL, CHIRAKKAL, PANAYAL VILLAGE, KASARAGOD. R1 BY PUBLIC PROSECUTOR SRI.ALEX.M.THOMBRA.** - **R2 BY ADVS.SRI.T.MADHU SMT.C.R.SARADAMANI.** **THIS CRIMIAL APPEAL BY DEFACTO COMPLAINANT/VICTIM HAVING BEEN FINALLY HEARD ON 12.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 2 -** **Crl.A(V) No.1266 of 2016** **K. Vinod Chandran & C.Jayachandran, JJ -------------------------------------Crl.A.(V)1266 of 2016 -------------------------------------Dated, this the 12[th] November, 2021** ## **JUDGMENT** ## **Vinod Chandran, J.** _**Chandrappa and others v. State of Karnataka (2007 (4)**_ _**SCC 415)**_ **restated the principles regarding the scope of the power of appellate Court to re-appreciate, review or reconsider evidence and interfere with an acquittal. The general principles were encapsulated in the following manner:** **42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:** **(** _**1**_ **) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.** **(** _**2**_ **) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.** **(** _**3**_ **) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.** **- 3 -** **Crl.A(V) No.1266 of 2016** **(** _**4**_ **) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused.** _**Firstly**_ **, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.** _**Secondly**_ **, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.** **(** _**5**_ **) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court”.** **2. The above appeal arises from an acquittal by the trial Judge. The appellant is the wife of the deceased. The offence is one under Sec.302; according to the prosecution a premeditated one, carried out in the dark, brutally and repeatedly hitting the face of the deceased with a hammer, by the accused who had prior enmity against the deceased and was last seen together with the deceased. We heard Sri.Kodoth Sreedharan for the appellant, Sri.Madhu.T for the 2[nd] respondent and the learned Public Prosecutor Sri.Alex M Thombra.** ## **3. Sri.Kodoth Sreedharan submits that the** **learned trial Judge has egregiously erred in acquitting the accused on mere surmises and conjectures. There is clear evidence as to the enmity, the last seen theory and there was no cause to find the accused not guilty. The recoveries under** **- 4 -** **Crl.A(V) No.1266 of 2016** **Sec.27 also was another circumstance in the chain of circumstances; in this case where there is no ocular witness. The trend of cross-examination and the responses under S.313 Cr.PC indicates a total denial. This is a classic case of last seen together and the accused has a duty to explain what happened to the deceased, failing which an adverse inference can be drawn as held by the Hon'ble Supreme Court in** _**Prahlad v. State of Rajasthan [(2019) 14 SCC 438]**_ **. The learned Counsel also relies on the following decisions:** _**Sunil Clifford Daniel v. State of Punjab [(2012) 11 SCC 205]**_ **,** _**Madhu Alias Madhuranatha and another v. State of Karnataka [(2014) 12 SCC 419].**_ **4. Sri.Madhu.T., the learned Counsel appearing for the 2[nd] respondent, would point out that all the witnesses are interested witnesses especially since they are related to the deceased. For the inquest and the recovery, though there were a number of locals gathered, the Police picked out the relatives of the deceased to be the witnesses. The recovery under Sec.27 cannot be believed since the recoveries were made from the immediate vicinity of the scene of occurrence and admittedly the Police had thoroughly combed the area on the previous day, also with the help of a police dog. It is unbelievable that the hammer used for the crime and newspaper** **- 5 -** **Crl.A(V) No.1266 of 2016** **on which the accused is alleged to have wiped his blood stained hands would not have been sniffed out by a trained police dog. The learned Counsel submits that even if the surmises made by the trial Judge are completely eschewed there is sufficient justification for the acquittal.** **5. Ext.P1 is the FIS made by PW1, a relative of the deceased. He was informed by the son of the deceased about the death. PW1 had spoken to the deceased near the shop of PW2 on the previous night. The deceased having not returned home, his son went in search and found the deceased lying on the foundation of the house under construction; at a little height from their present residence. The body was first seen at around 7.15 a.m and on PW1 reaching the spot, he saw the deceased lying on his back with wounds on his face and clotted blood. He also stated that the deceased used to regularly drink liquor and even yesterday the deceased was inebriated. PW1 before Court spoke in tandem with the FIS. However there was some embellishment to the effect that, when he saw the deceased on the night of 8[th] , the accused was also present there and there was a wordy altercation between the accused and the deceased; the reason of which he could not clearly make out. He spoke of having witnessed the recovery of MO8 bloodstained newspaper, but, neither was the** **- 6 -** **Crl.A(V) No.1266 of 2016** **mahazar marked through him nor the Material Object identified. In cross-examination he admitted that CWs.2 & 3 (PWs.2 and 3) were related to him. He also said in cross-examination that the statement in Ext.P1 that he talked to the deceased on the previous night was an inadvertent mistake. It was also reiterated that the deceased had a drinking problem and that he was in inimical terms with many in the locality.** **6. PW2 is again a close relative of the deceased. He heard about the death when he was opening his shop and immediately he reached the spot. He deposed that the deceased was in his shop till about 8 to 9 p.m on the previous day. There was a wordy altercation between the accused and the deceased and the deceased hurled abuses at the accused. When the accused got up from his seat, PW2 asked the deceased to leave the premises. It was also deposed that the deceased was slightly inebriated. The accused was also asked to leave the premises. When the deceased left for home, the accused told him 'kandolam', a threat, which transliterated means 'will see you'. It is also stated that on the day on which the death was detected, the accused came to his shop for a soda.** **- 7 -** **Crl.A(V) No.1266 of 2016** **7. PW3 was the witness to the scene mahazar, PW4 and PW12 are witnesses to the inquest report and spoke of the seizure of Mos.1 to 5, belongings of the deceased. PW5 witnessed Ext.P4 mahazar by which the newspaper with bloodstains (MO8), pointed out by the accused was recovered. He also said that MO8 was recovered from the property of the accused. PW6 spoke of having witnessed a scuffle between the accused and the deceased earlier, at the time of a festival. PW7, the wife of the deceased, also spoke about the skirmish between her husband and the accused on the festival day; but, she did not witness it. PW8 witnessed the arrest of the accused and proved Exts.P5 and P6, the arrest memo and seizure mahazar of the vehicle in which the accused came to the spot. PW9 saw the recovery of MO9 hammer. PW10 attested Ext.P8 mahazar, by which MO10 dothi worn by the accused was recovered. PW11 is the sister-in-law of the accused and she speaks of having informed the accused about the death, to which he was nonchalant. PW13 produced the body before PW15 for post-mortem and PW14 took the photographs of the body. PW16 produced the possession certificate at Ext.P11, of the wife of the deceased, of the property in which dead body was seen. PW17 prepared the eye sketch and PW18 is the Sub Inspector who recorded the FIS and registered the FIR. PWs.19** **- 8 -** **Crl.A(V) No.1266 of 2016** **and 20 are the investigating officers. PW19 conducted the initial investigation and admitted in cross-examination that a dog squad came to the scene of occurrence on the day when the body was detected and they combed the nearby areas except the land at a height from the scene of occurrence.** **8. PWs.1 to 3 and 5 are close relatives of the deceased. As is trite, mere relation does not make them interested witnesses unless it is established they have an axe to grind against the accused. But, their testimony all the same has to be analysed carefully, to find out the guilt of the accused, especially in a case of circumstantial evidence; where there is no ocular testimony or direct evidence otherwise. The quality of evidence and the manner in which the crime has to be established is fairly settled and reiterated in** _**Sunil Clifford Daniel**_ **(supra) in the following manner:** _**“Thus, in a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance, by way of reliable and clinching evidence, and the circumstances so proved must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion, however grave it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the court must take utmost precaution whilst finding an accused guilty, solely on the basis of the circumstances proved before it”.**_ **- 9 -** **Crl.A(V) No.1266 of 2016** **9. PW1 though registered the FIS, does not speak of having seen the deceased and accused quarreling on the previous day; which he deposed in chief-examination. In cross-examination he denied having spoken to the deceased on the previous day when he met him at night; contrary to what he has stated in the FIS. PW2's testimony is relied on by the prosecution to prove the last seen together theory. PW2 runs a petty shop in the locality and he spoke of a wordy duel between the accused and the slightly inebriated deceased. According to him, he first asked the deceased to leave and while the deceased was proceeding home, he heard the accused speaking offensively to him in the premises of the shop itself. Later, he asked the accused also to leave. Obviously this does not result in a last seen theory. Both the accused and the deceased were seen together in the shop of PW2 and they left at different times; however short the interval be. They did not leave the premises in a congenial mood for them to proceed together. It can only be presumed that both went their respective ways especially when PW2 asserts that the deceased went home; presumably having seen him proceeding in that direction.** **10. We do not think** _**Prahlad**_ **(supra) would be applicable, wherein the accused had come to the house of the** **Crl.A(V) No.1266 of 2016 - 10 -** **minor victim and took her with him on the pretext of buying her chocolates. The minor victim was not seen thereafter and her body was recovered later, with signs of sexual molestation. This was the context in which the Hon'ble Supreme Court held that if no explanation is forthcoming from the accused as to when he parted the company of the victim; the silence leads to an adverse inference.** _**Sunil Clifford Daniel (supra)**_ **was concerned with the absence of explanation in Sec.313, to the inculpating circumstances established in evidence.** _**Madhu @ Madhuranantha (supra)**_ **likewise was with respect to an explanation established as false.** **11. In the present case what comes out from the testimony of PW2 is that the accused and deceased parted company at his shop. The deceased proceeded home and the accused went out. The deceased obviously did not reach home since it is stated by PW1 that the son of the deceased while informing him of the death, also told him that he did not return the previous night. The body of the deceased was found at the construction site of a new house, located at a height from the residence of the deceased. The accused was not seen together with the deceased after he left the shop of PW2; nor were they seen at the scene of occurrence, together. We do not find any last seen theory and hence there is no warrant** **- 11 -** **Crl.A(V) No.1266 of 2016** **to draw an adverse inference based on the total denial made by the accused in his Sec.313 statement. The accused owes an explanation only to the inculpating circumstance and when the last seen theory is not established there is no requirement for an explanation. The Hon'ble Supreme Court only declared that if there are circumstances inculpating the accused and he offers no explanation or a false one, then necessarily that is another link in the chain of circumstance. In fact,** _**Madhu @ Madhuranantha (supra)**_ **categorically held that the prosecution has to stand on its own legs and cannot derive any strength from the weakness of the defence set up by the accused.** **12. PW5 spoke of having seen the recovery of MO8 series of newspapers by Ext.P4 mahazar as per the confession statement of the accused. Ext.P4 is dated 10.04.2012. Likewise, PW9 witnessed MO9 hammer as per Ext.P7; again on the basis of the confession statement of the accused, which is also dated 10.04.2012. PW5 says that the recovery of the newspaper was made from the property belonging to the accused while the testimony of PW19 I.O is that the confession statement was that, the newspaper in which the hammer was covered and on which the accused wiped his hands off the bloodstains, was thrown in the property** **- 12 -** **Crl.A(V) No.1266 of 2016** **adjacent to the scene of occurrence. Pertinently accused does not say that the adjacent property was under his ownership nor does the prosecution have such a case. Moreover, PW19, I.O, has categorically stated that the scene of occurrence and the nearby areas were thoroughly combed on the previous day, i.e: 09.04.2012, by the dog squad. Definitely the bloodstained newspaper and the hammer used for the crime would have been detected. Further, it is the testimony of PW9 that there were 500 people gathered to see the dead body and he too spoke of the police having used a sniffer dog on detection of the body. We can find no reliance on the recoveries under Sec.27.** **13. We perfectly agree with the learned Counsel for the appellant that there are surmises and conjectures in the judgment of the learned Sessions Judge. The finding in the impugned judgment that, normally the person who created a problem would be asked to leave the premises, to discredit the testimony of PW2 regarding the altercation between the accused and the deceased and that in a village setting normally a shop-keeper would not open his shop on the day a relative died; are all fanciful. But that alone cannot result in our reversing the impugned judgment.** **Crl.A(V) No.1266 of 2016 - 13 -** **14. The cause of death has been found to be homicide which we also concur with. The death could have been caused by MO9 hammer or a similar object; but, crucially, the time of death has not been spoken of by the doctor PW15. PWs.1 and 2 have been doubted by the learned Sessions Judge, which we concur with for different reasons than that stated in the impugned judgment. PW1 at the first instance did not speak of his having witnessed a wordy altercation between the accused and the deceased on the previous day. In the FIS he has stated that he has spoken to the deceased in front of PW2's shop on the previous night, which he resiled from in the testimony before Court. PW2 though need not be disbelieved, but his testimony does not necessarily put forth a last seen together theory. The accused and the deceased who quarreled in the premises of his shop, parted company after PW2 asked them to leave. Though an early altercation has been spoken of between the deceased and the accused, no specific time period is mentioned by any of the witnesses. It has also come out in evidence that both were friends and had financial transactions which resulted in their relationship turning sour. There occurred a wordy duel on the previous night. Motive, it is trite, is something in the recesses of the human mind, which often the prosecution cannot ferret out.** **- 14 -** **Crl.A(V) No.1266 of 2016** **But, merely because there was a quarrel on the previous night, it cannot be said that one of the persons murdered the other without anything more. It is also trite that when the prosecution case is based on circumstantial evidence there should be an unbroken chain of circumstances unerringly pointing to the guilt of the accused. An imagined motive or the recovery of a weapon; from which no scientific evidence is obtained, cannot be relied on solely to sustain a conviction. The weapon (MO9) and the news papers (M08 series) contained blood as per the FSL Report at Ext.P26, but that does not connect the accused to the crime when we have disbelieved the recovery under Sec.27. MO10, the saffron coloured dhothi of the accused, did not contain any blood on FSL examination.** **15. The subsequent conduct of the accused is** **also above board. PW2 himself says that on the day on which the body was detected, at 8.30 a.m the accused came to his shop and drank a soda. PW11, the accused's sister-in-law, also speaks of she having informed the accused about the body having been detected, which he did not respond to. The arrest made, as spoken of by PW8, is on the accused coming to the police voluntarily in his bike. The accused obviously did not attempt to abscond or hide from the public on the next day.** **- 15 -** **Crl.A(V) No.1266 of 2016** **16. As we noticed, the learned Judge has definitely made certain surmises and conjectures which we frown upon. But all the same the acquittal is justified even if such surmises and conjectures are eschewed. We find no reason to reverse the judgment acquitting the accused; in this appeal and dismiss the appeal.** **Sd/K.Vinod Chandran, Judge** **Sd/C.Jayachandran, Judge** **jma/vku.**