Narasimhamoorthy v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 14TH DAY OF MARCH 2013/23RD PHALGUNA 1934 CRL.A.No. 2370 of 2008 ( ) --------------------------- SC.137/2007 of ADDL. DISTRICT & SESSIONS COURT (ADHOC)-II, MANJERI CP.6/2007 of J.F.M.C., PONNANI APPELLANT : ------------------- NARASIMHAMOORTHY, CONVICT NO.6176, CENTRAL PRISON, KANNUR. BY ADVS.SRI.SOJAN MICHEAL SMT.DHANYA P.ASHOKAN (STATE BRIEF) RESPONDENT : ------------------------ STATE OF KERALA. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-02-2013, THE COURT ON 14.3.2013 DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------Criminal Appeal No.2370 of 2008 ----------------------------------------------Dated 14[th] March, 2013 J U D G M E N T** ## **Joseph Francis, J.** This Jail Appeal is filed by the accused Narasimhamoorthy in S.C.No.137 of 2007 on the file of the Additional Sessions Court (Adhoc) No.II, Manjeri.The accused was charge sheeted by the Circle Inspector of Police, Ponnani under Section 302 of the Indian Penal Code. 2. The prosecution case is briefly as follows : The accused and his wife Pazhaniyamma were residing with CW1 Perumal and his family in a rented house at Chiyannoor near Alamkode Primary Health Centre. On 3.8.2006, they all decided to go for a cinema at 6 p.m. When CW1 and his family got ready, the accused backed out and he did not allow his wife Pazhaniyamma also to go for cinema. He was drunk also. There was some quarrel between the accused and his wife Pazhaniyamma. CW1 and his family along with neighbours went for cinema, leaving the accused and Pazhaniyamma in their house. The allegation is that at about 8 p.m, the accused committed murder of his wife Pazhaniyamma by kicking on her 2 Crl.Appeal No.2370 of 2008 abdomen and by throttling. 3. Before the Additional Sessions Court, on the prosecution side, PW1 to PW13 were examined and Exts.P1 to P24 were marked. No evidence was adduced from the defence side. The learned Additional Sessions Judge, on considering the evidence on record, found that the accused committed murder of his wife and he was convicted and sentenced to undergo imprisonment for life under Section 302 of the Indian Penal Code. Against that conviction and sentence, the accused filed this appeal. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. The learned counsel for the appellant submitted that the prosecution has miserably failed to prove beyond reasonable doubt that the appellant himself committed the murder of his wife. The learned Public Prosecutor supported the judgment of the court below. 6. In the present case, there is no eye witness to the actual occurrence. The prosecution case is mainly based on 3 Crl.Appeal No.2370 of 2008 ## circumstantial evidence. In the decision reported in **Earabhadrappa v. State of Karnataka** (AIR 1983 Supreme Court 446), it was held as follows : “In cases in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and the facts and circumstances should not only be consistent with the guilt of the accused but they must be in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence.” 7. CW1 Perumal, who gave Ext.P7 F.I. statement before the Police on on 3.8.2006 at 11 p.m. could not be examined before the court as he was no more at the time of trial. In Ext.P7, it is stated that CW1 and his family were residing in the quarters belonging to one Jayan. Near that quarters, one woman called Alamelu and her family members were residing in another quarters belonging to one Haridas. About six months back, the younger sister of Alamelu, viz., Pazhaniamma along with her husband(Arumughan) resided in 4 Crl.Appeal No.2370 of 2008 that house for about one month. About 15 days ago, Pazhaniamma along with the accused Narasimhamoorthy came to the house of CW1 Perumal and told him that Pazhaniamma divorced her first husband(Arumughan) and married Narasimhamoorthy three months back and that they intend to reside in the house of Perumal till they could find out another house. CW1 agreed and the accused and Pazhaniamma began to reside in the rented house of CW1. On 3.8.2006, at about 6 p.m., CW1, his wife, children, and his aunt and others residing nearby went to see a cinema. Pazhaniamma agreed to go with them for the cinema, but since accused Narasimhamoorthy was lying drunk, she told that they would come after some time. But, they did not go for the cinema. When CW1 and others came back after seeing the cinema at about 9.15 p.m., the accused Narasimhamoorthy was found sleeping and deceased Pazhaniamma was found lying on the floor and on her neck, a saree was found tied and when they tried to wake her up, they understood that she was dead. When they woke up accused Narasimhamoorthy, he told that he did not know as to what Crl.Appeal No.2370 of 2008 5 happened to Pazhaniamma. 8. PW1 Alamelu is the elder sister of deceased Pazhaniamma. At the time of occurrence, she was residing with her family in the quarters belonging to one Haridasan. PW1 deposed that Pazhaniamma was married to one Arumughan earlier and the accused kidnapped Pazhaniamma. PW1 has no direct knowledge regarding the occurrence, which led to the death of Pazhaniamma. In cross-examination, PW1 deposed that she does not know whether the first husband of Pazhaniamma came there at the time of occurrence. 9. PW2 is an attesting witness to Ext.P1 scene mahazar. PW3 is an attesting witness to Ext.P3 mahazar. PW4 is the doctor who conducted post mortem examination on the body of deceased Pazhaniamma. He was then working as Lecturer in Forensic Science, Medical College, Trichur. He conducted post mortem examination on 4.8.2006 and issued Ext.P4 post mortem certificate. PW4 noted the following ante mortem injuries in Ext.P4 : “1. Superficial lacerated wound 1 x 0.3 vertical on right side of 6 Crl.Appeal No.2370 of 2008 neck, with upper end 4 cm vertically below right ear and upper end continuing as a linear abrasion 4 x 0.1 cm. with upper end touching the lower end of root of ear. 2. Superficial lacerated wound 1.5 x 0.3 cm. on right side of neck, parallel and 0.9 cm. behind injury No.1 upper end 6 cm. below mastoid. 3. Abrasion 1 x 0.4 cm. on right side of face, over the jaw margin at the angle of mandible. 4. Multiple small abrasion (5 Nos) 0.1 x 0.1 cm to 0.2 x 0.2 cm over an area 1.5 x 0.5 cm. mucosal surface of left side of lower lip, inner end 1.5 cm. outer to midline. 5. On dissection perirenal haematoma seen on back aspect of right kidney. 6. Flap dissection of neck was done under bloodless field and showed contusion 1 x 0.5 cm and 2 x 1 cm. on upper part of left and right thyronyoid muscles. Infiltration of reddish brown blood on lower part of right sub mandibular gland (2 x 1 cm) and right sub mandibular lymph node and surrounding tissues (2 x 1 cm) contusion was seen over an area 8 x 3 cm. on root of tongue and adjacent part of pharynx.” According to PW4, the death was due to throttling. PW5 has no Crl.Appeal No.2370 of 2008 7 direct knowledge about the incident. PW6 is an attesting witness to Ext.P5 inquest report. PW7 is the Village Officer who prepared Ext.P6 sketch. PW8 was the Tahsildar, Ponnani who prepared Ext.P5 inquest report. PW9 was the Sub Inspector of Police, Changaramkulam Police Station, who recorded Ext.P7 F.I. statement given by CW1 Perumal. 10. PW10 (Kundukanni) was residing in the nearby house of CW1. PW10 deposed that she along with CW1 Perumal and family went to cinema and the accused and his wife did not come. PW10 deposed that when they returned back after seeing the cinema, she saw Pazhaniamma lying dead in the house of CW1 Perumal and the accused was found sleeping nearby. When they woke up the accused and asked him as to what happened to Pazhaniamma, the accused told that he does not know anything and he cried. PW10 deposed that the accused and Pazhaniamma loved each other. She deposed that she does now know whether the first husband of Pazhaniamma had any enmity towards Pazhaniamma. PW11 Unnamalai is the wife of CW1. She also gave more or less 8 Crl.Appeal No.2370 of 2008 similar version as given by CW1 in Ext.P7 F.I. statement. PW11 deposed that when they went out for seeing cinema, the accused was lying on the floor of the house after consuming alcohol and when they came back, the accused was found sleeping in the house. 11. When the accused was questioned under Section 313 of the Code of Criminal Procedure, he stated that he was innocent. When the accused was heard about the sentence also, he stated that he was innocent. 12. The learned Additional Sessions Judge found that the accused committed murder of Pazhaniamma, only on the principle of last seen theory. In the F.I. statement given by Perumal, nothing is stated regarding any suspicion against the accused in connection with the occurrence. There is ample evidence to prove that there was cordial relationship between the accused and the deceased. There is no evidence to show that there was any altercation between the accused and Pazhaniamma on the day of occurrence. It has come out in evidence that when CW1 and others went out of the house for 9 Crl.Appeal No.2370 of 2008 seeing cinema, the accused was lying in the house in a drunken state and when CW1 and others returned after seeing the cinema, the accused was having sound sleep and when they woke him up and asked about the incident, the accused cried and said that he does not know anything about the incident. It has also come out in evidence that when CW1 and others returned to the house after seeing the cinema, the front door of the house remained open. 13. Considering all these aspects of the matter, it is not possible to arrive at a conclusion that it was the accused who committed murder of his wife. The mere fact that the accused was last seen with the deceased does not lead to the irresistible inference that the accused committed murder, considering the facts and other circumstances of the case. Since the prosecution has failed to prove its case beyond reasonable doubt, we are of the view that the Additional Sessions Judge was not justified in convicting the accused. Accordingly, this Appeal is allowed. The conviction and sentence of the appellant/accused under Section 302 of 10 Crl.Appeal No.2370 of 2008 the Indian Penal Code is set aside and the appellant is found not guilty of that offence and he is acquitted and set at liberty, if his further detention is not required in connection with any other case. The Registry is directed to communicate the gist of this judgment to the Jail authorities concerned, forthwith. Sd/- ## **K.T.SANKARAN, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs (true copy)