Rajendran @ Raju v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY ,THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941** **CRL.A.No. 232 of 2015** **AGAINST THE ORDER/JUDGMENT IN SC 834/2010 ON THE FILE OF THE COURT OF ADDITIONAL SESSIONS JUDGE-I, TRIVANDRUM** **DATED 31-01-2015** ## **APPELLANT/S:** **RAJENDRAN @ RAJU AGED 52 YEARS S/O. SUKUMARAN,ROADARIKATHU VEEDU, POTTANCHIRA KOTTAKKAKAM MURI, ARYANAD VILLAGE.** **BY ADVS. SRI.SHABU SREEDHARAN SRI.JOLLY GEORGE SRI.K.V.PREMSANKAR SRI.M.RAHUL SRI.P.R.VIBHU SRI.P.V.JEEVESH SRI.S.VIJAYAN SRI.V.PRINCE DEV** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **SPECIAL PUBLIC PROSECUTOR FOR ATROCITIES AGAINST WOMEN AND CHILDREN SMT.S. AMBIKA DEVI** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.1.2019, THE COURT ON 22.03.2019 PASSED THE FOLLOWING:** 2 **CRL.A.No. 232 of 2015** ## **JUDGMENT** ## **A.M.BABU,J.** The appeal is directed against the judgment of the court of session, Thiruvananthapuram division in SC 834/2010. The appellant was the accused therein. He was convicted and sentenced under Sec.302 of the Indian Penal Code (IPC) by the first additional sessions judge of the said court. 2. The prosecution case is as stated below: The appellant was on hostile terms with his mother, Sarada by name. The mother had executed a settlement deed in favour of the son in 1997 in respect of a property measuring one acre. The appellant and his wife were residing in the building situated in the said property. They persistently persecuted Sarada in different ways. Therefore she executed a deed of cancellation in 1998 to cancel the settlement deed she executed in favour of the appellant. She filed a suit for injunction against him in 1998. In 2000 she sold 50 cents out of the said property to her two grandsons. Sarada lodged a criminal complaint with the police as the appellant plucked coconuts from the trees stood in the residential compound on 31.7.2008. The station house officer asked all the parties to the dispute to attend the police station on 3.8.2007. At around 8 p.m on 2.8.2007 the appellant barged into the single room shed where stayed his old mother. He strangulated her to death with a bath towel. 3 **CRL.A.No. 232 of 2015** 3. FI statement was lodged. FIR was registered. Investigation was conducted. The appellant was arrested. The investigation culminated in filing of charge-sheet against the appellant. The learned magistrate took cognizance of the case and committed it to the court of session. The case was made over to the learned first additional sessions judge. 4. The learned trial judge, after hearing both sides, framed a charge against the appellant under Sec.302 of IPC. He denied the charge. He claimed to be tried. The prosecution examined PWs 1 to 29 and marked on its side Exts P1 to P52 and MOs 1 to 21. The appellant was examined under Sec.313 of the Code of Criminal Procedure (Cr.P.C). He denied the incriminating evidence and circumstances relied on by the prosecution. The trial court did not find it a fit case to acquit the appellant under Sec.232 of Cr.P.C. Hence he was called upon to enter on his defence and adduce evidence. He examined two witnesses as DWs 1 and 2. Exts D1 and D2 to D2(b) were marked on his side. Three documents summoned from the Kerala Women's Commission were marked as Exts X1, X1(a) and X1(b). 5. The learned trial judge found the appellant guilty of committing murder. He was therefore convicted under Sec.302 of IPC. He was sentenced to imprisonment for life and a fine of Rs 1,00,000/-. He was directed to undergo rigorous imprisonment for two years in the event of his default to remit the fine. 4 **CRL.A.No. 232 of 2015** 6. Heard Sri.Shabu Sreedharan, the learned counsel for the appellant and Smt.S.Ambika Devi, the learned special public prosecutor for cases involving atrocities against women and children. 7. Homicidal death of Sarada is a proved fact. It is more or less an admitted fact as well. For proof, we need only to read the evidence of PW25. She conducted autopsy. Ext P28 is her report. She opined that the post-mortem findings were consistent with death due to ligature strangulation. Her such opinion was not challenged in her cross-examination. She at the time of post-mortem examination saw and observed 42 injuries which were ante-mortem. She spoke in court to all those injuries. She described them in Ext P28 report. We do not propose to quote any of those injuries since they are extracted in the impugned judgment. PW25 deposed that (i) injury nos 1 and 2 could be caused with a bath towel, (ii) injury nos 4 and 5 could be caused by an attempt of manual strangulation, (iii) injury nos 6 to 8 could be caused by coming into contact with a blunt object or surface, (iv) injury nos 9 to 21 could be caused by an attempt of smothering process, (v) injury no.22 could be caused by the contact with a blunt object, (vi) injury no.23 could be caused by forcible contact with a blunt object by stamping and (vii) injury nos 24 to 38 and 40 to 42 could be caused by the contact with any hard surface or a blunt object or a blunt force. Her such evidence was also not challenged in cross-examination. All what the defence did at the trial was to put a suggestion to PW28, who 5 ## **CRL.A.No. 232 of 2015** investigated the case, that Sarada died in her attempt to hang herself. It was not a serious suggestion and PW28 denied it. Apart from the said suggestion put to the investigating officer, the appellant did not challenge the prosecution version that Sarada was murdered. We without any hesitation find that the death of Sarada was a homicide. 8. MO8 is a bath towel. It was seen on the neck of the dead body of Sarada when PWs 1, 2 and 4 saw the body in the house of Sarada. PW25 who conducted post-mortem examination on the dead body of Sarada saw MO8 towel loosely placed on the neck of the body. PW25 spoke that injury nos 1 and 2 could be caused with MO8. The scientific assistant who gave evidence as PW10 had taken among other things cellophane tape pressings from the neck of the corpse. The same were forwarded to the forensic science laboratory (FSL for short) at Thiruvananthapuram. MO8 bath towel was also forwarded to the same laboratory. The assistant director (biology), FSL, Thiruvananthapuram was examined as PW16. He deposed that the cellophane tapes marked by him in his Ext P20 report as item no.3(a) contained fibres similar to the bath towel (MO8) which he marked in his report as item no.11. MO8 is proved to be the material with which Sarada was strangulated to death. 9. Matricide is the allegation against the appellant. Of twenty nine witnesses examined by the prosecution, none was an eyewitness. The prosecution is without ocular proof as nobody witnessed 6 **CRL.A.No. 232 of 2015** commission of murder of Sarada. Necessarily the prosecution has to rely on circumstantial evidence. The trial court found that the prosecution proved the circumstances relied on by it. The learned trial judge stated that there were eleven circumstances to consider. The learned judge has listed those eleven 'circumstances' which we extract below as such: (1) The deceased lady Smt.Sarada executed Ext P3 settlement deed in the name of the accused on 1.1.1997 in respect of her one acre of property and a two storied residential building belonging to her at Pottanchira in Aryanad village. (2) Relation between mother, the deceased and the son, the accused became strained, bitter and incompatible because of his alleged rude and hideous behaviour, eventual to which she had cancelled Ext P3 deed of settlement by Ext P4 cancellation deed dated 25.5.1998. (3) The deceased in the year 2000 executed Ext P2 sale deed on 31.5.2000 in favour of her grandsons PW1 and CW2 namely, the children of her late son, Bhuvanendran, the elder brother of the accused. (4) Institution of O.S 602/1998 by the deceased against the accused before the Munsiff's Court, Nedumangad, proved by Exts P44, 45, viz., the copy of judgment and decree in the said suit and Exts P46 and P47, copy of execution petition and notice to the respondent/accused. (5) Petition filed against the accused by PW1 (Ext P6) and his brother before the S.N.D.P Shakha, Aryanad and its consequent settlement (Ext P7). (6) Lodging of complaint against the accused and his wife and children and the coconut climber before the Arayanad Police (Ext P5). (7) Direction given by Aryanad Police to the accused to appear before the Aryanad Police station on 3.8.2007 eventual to Ext P5 complaint. (8) Application submitted by the accused before the S.N.D.P Sakha on 2.8.2007 seeking copy of the compromise dated 4.7.2007. (9) The factum of filing of complaint by the deceased against the accused before the Kerala Women Commission for redressal of her 7 **CRL.A.No. 232 of 2015** grievance. (10) Similarity of the hair samples collected from the spot where the body of the deceased was found lying with the scalp hairs said to have been collected from the person of the accused proved by PW16 Mr Sreekumar, the Assistant Director, Biology, Forensic Science Laboratory, Thiruvananthapuram and Ext P20 report. (11) Complaint filed by the deceased against the accused before the Women Commission Thiruvananthapuram. Among the above, which are shown in the impugned judgment as circumstances, the 10[th] one may be a circumstance against the appellant, if proved. Some of the remaining ten (not all) are related to the motive which may be a circumstance if the other one, which is listed as 10 above, is proved. Thus, virtually, there are only two circumstances for the prosecution to rely on. They are (i) the hairs of the appellant were collected from the scene of occurrence and (ii) the motive. 10. Ext P20 report and the evidence of PWs 10, 16 and 28 were considered by the trial court to find that the hairs of the appellant were found on the floor near the dead body of Sarada. Ext P20 is the report of PW16 who was the assistant director(biology), FSL, Thiruvananthapuram. He stated in his report and deposed in court that three of seven hairs shown as item no.4 in the report were human scalp hairs similar to the sample scalp hairs shown as item no.2 in the report. According to the prosecution, item no.4 hairs were collected from the scene of occurrence near the dead body and item no.2 hairs 8 ## **CRL.A.No. 232 of 2015** were the sample scalp hairs of the appellant. The prosecution relies on the evidence of PWs 10 and 28 in order to contend so. 11. PW10 at the relevant time was working as the assistant director (documents) at the FSL. She examined the scene of occurrence and collected a few materials. She spoke that she had taken seven hairs from the floor near the bath towel. She deposed that she labelled all those materials collected from the scene of occurrence and that she handed over those materials to the circle inspector (PW28). PW10 collected those materials for transmission to the FSL for scientific examination. She spoke so. She collected those materials not to enable PW28 to keep with him for any purpose during the investigation. Therefore, necessarily, PW10 should have not only labelled the packets in which the materials were collected, but she should have sealed those packets. She did not do so. She stated in cross-examination that she did not seal the packets in which the materials were collected. We in this appeal are only concerned with the seven hairs collected from the scene of incident. As the packet in which the hairs were collected was not sealed, any manipulation was possible at the hands of the investigating agency. The trial court did not take seriously the failure of PW10 to seal the said packet. The trial judge relied on the evidence of PW28, the investigating officer, that he sealed the packets containing the materials in the presence of PW10. His such evidence did not get any sort of corroboration from the 9 ## **CRL.A.No. 232 of 2015** evidence of PW10. She did not depose that it was in her presence the circle inspector sealed the materials she (PW10) collected from the scene of occurrence. Therefore the evidence of PW28 that he sealed the materials in the presence of PW10 cannot be given due weight. The hairs seen in the scene of occurrence were collected by PW10 and handed over to PW28 on 3.8.2007. But the same reached the magistrate only at 9.00 in the night on the next day, 4.8.2007 (vide the endorsement of the magistrate on Ext P30 property list). The delay cannot be simply explained away as short. PW28 had no business to keep with him the hair samples collected for the purpose of scientific examination. The trial court said that the seal on the packet was intact when it was received in the FSL as stated by PW16 and as shown in Ext P20. We do not think that the said fact is sufficient to remove the suspicion. What we have considered above shall be taken serious note of in a case where the prosecution relies on a single circumstance, besides motive. 12. The prosecution should establish that the sample scalp hairs examined at the FSL were those of the appellant. The prosecution should positively prove that scalp hairs of the appellant were collected. The only evidence relied on by the prosecution in this connection is the evidence of PW28 who investigated the case. His evidence was accepted by the learned trial judge to find that the hairs examined at the FSL were the scalp hairs of the appellant. PW28 10 **CRL.A.No. 232 of 2015** deposed that he forwarded the appellant to the primary health centre (PHC for short) at Aryanad for medical examination and collection of nail clippings and scalp hairs. PW28 spoke that the doctor at the PHC examined the appellant and produced the nail clippings and scalp hairs of the appellant in two covers. This much evidence is not sufficient to find that the scalp hairs examined at the FSL were definitely those of the appellant. PW28 did not claim to have seen the collection of scalp hairs of the appellant by the doctor. It is not in evidence as to through whom the doctor at the PHC forwarded the scalp hairs and nail clippings to PW28. The only witness who was competent to speak to the collection of scalp hairs of the appellant was PW18. He was the doctor to whom the appellant was forwarded for medical examination. PW18 spoke that he examined the appellant on 4.8.2007 at the PHC at Aryanad. He issued a certificate which was marked as Ext P22. He stated therein that the appellant was healthy and had no injury. PW18 spoke to the collection of nail clippings of the appellant. PW18 deposed that he did not remember to have taken the scalp hairs of the appellant. The witness spoke so in his examination-in-chief itself. He repeated his same statement in his cross-examination. He did not choose to prepare any report on collection of scalp hairs and nail clippings. The prosecution failed to prove the collection of scalp hairs of the appellant by PW18 and thereby failed to establish that the hairs examined at the FSL were the scalp hairs of the appellant. 11 **CRL.A.No. 232 of 2015** 13. We find force in the submission of the learned counsel for the appellant that the alleged collection of hairs of the appellant from the scene of occurrence is not sufficient to prove his guilt. The appellant is the son of Sarada. The evidence of PW15 suggests that among the relatives of Sarada, the appellant and his children were the persons who came to the house of Sarada first. The evidence in the case suggests that the appellant entered the shed in which Sarada was found dead. The police constable (PW24) spoke that he was unaware whether anybody entered the shed before he started to guard the scene of occurrence. PW2 stated that when he came hearing the news, he saw the appellant and his wife and children standing near the dead body of Sarada. PW15 deposed that she was present when the appellant and his wife and children entered the shed. The victim Sarada's brother was examined on defence side as DW1. He spoke that when he entered the shed, what he saw was the appellant crying lifting the head of the corpse. DW1 was not cross-examined on this aspect. No single question was put to him to challenge his such evidence. Hence his such evidence can be taken as admitted and proved. In view of what we have stated above, the possibility of fall of the hairs of the appellant on the floor of the shed near the dead body after the entry of the appellant into the shed on 3.8.2007 cannot be ruled out. Therefore the collection of a few hairs of the appellant from the scene of occurrence cannot be treated as a strong circumstance 12 **CRL.A.No. 232 of 2015** against him to convict him. 14. The learned counsel for the appellant relied on the decision of this court in **Sudheer Babu vs State of Kerala (2013 (2) KLT 168).** The decision holds that it may not be proper to find an accused guilty on the sole basis of a report that the hair samples collected from the scene of crime have resemblance with the hair samples collected from him, though the same may have relevance for considering along with other incriminating circumstances against him. In the present case, apart from the motive, the prosecution is without any other circumstance to prove the guilt of the appellant. 15. The prosecution failed to prove its key circumstance against the appellant. What remains for the prosecution is the motive. Proof of motive is not, by itself, proof of guilt of an accused. However, we shall consider it since the learned trial judge wrote in the impugned judgment extensively on motive. 16. The prosecution alleges that the appellant was on hostile terms with his mother and that the reason for the hostility was a property dispute. The prosecution did not get much oral evidence to prove the alleged hostility. The only witness who spoke to it was PW1. We shall consider his evidence shortly. PW2, a hostile witness, denied having any knowledge for him about any quarrel between the appellant and his mother. The witness denied having given Ext P8 statement to the police suggesting witnessing of the quarrel between 13 ## **CRL.A.No. 232 of 2015** the son and the mother. PW3, a coconut climber, did not give any evidence in favour of the prosecution. He spoke that he was unaware of any property dispute. He stated in his cross-examination to the effect that he was being engaged to pluck coconuts from the property by the appellant and his mother. PW1, the appellant and Sarada were members of the SNDP. PW7 was the president of the Parangod-Aythi branch of the SNDP from 2006 to 2010. He spoke that Sarada never filed any complaint to the SNDP against the appellant. The witness deposed that no case involving Sarada and the appellant had come up for consideration before the SNDP. It was also the evidence of PW7 that sometimes Sarada stayed in the shed and at times in the house of the appellant. The next door neighbour of Sarada was examined as PW15. She spoke that Sarada resided in the shed occasionally. The witness added that she was never told by Sarada that Sarada was on inimical terms with the appellant. It was also the evidence of PW15 that the appellant used to come to the shed. PW15 deposed that she never saw any quarrel between Sarada and the appellant. DW1, the defence witness, the brother of Sarada, testified in court that his sister never told him that she and the appellant were on bad terms. DW1 added that Sarada was in the habit of telling everything to the former. His such evidence was not challenged in cross-examination by the public prosecutor. In view of the evidence we have discussed above, we are unable to find that the prosecution could prove any hostility 14 **CRL.A.No. 232 of 2015** subsisting between the appellant and his mother on the date of the incident or shortly before. 17. The learned trial judge accepted the evidence of PW1 to find that Sarada was not on good terms with the appellant. PW1 is the person who gave the FI statement. He is the grandson of Sarada. The entire attempt in the cross-examination of PW1 was to elicit that the enmity was in fact between him and the appellant and not between the appellant and his mother. The defence was successful to some extent to bring its case from PW1. His evidence suggests that he and the appellant were on inimical terms. The witness deposed that there was a criminal case against him, his brother and father alleging that they physically attacked the appellant. PW1 lodged a complaint against the appellant alleging that the appellant trespassed into the property of the former and caused plucking of coconuts from the trees in the said property. It was in favour of PW1 Sarada executed a sale deed after executing a deed of cancellation cancelling the settlement deed executed in favour of the appellant. PW6 who was the secretary of the SNDP branch at Parangod-Aythi spoke that the complaint considered by the SNDP was the one filed by PW1 and his brother against the appellant. Ext P6 is the said complaint signed by PW1 and his brother. PW27, the sub-inspector of police, deposed that the complaint filed in the police station on the previous day of the incident against the appellant was signed by PW1 only. Ext P5 is the 15 ## **CRL.A.No. 232 of 2015** said complaint. The only person signed it was PW1. It was shown to be filed by Sarada as well, but she did not sign it. DW1's evidence also suggests the strained relationship between the appellant and PW1. The discussion of the evidence as above goes to a probable conclusion that PW1 was a person who had an axe to grind against the appellant. The evidence of such a person cannot be safely relied on to find any hostility between the appellant and his mother subsisting on or about the date of incident, eschewing the other evidence we have considered already. 18. The learned trial judge relied too much on three documents. They are Exts P2(a), P3(a) and P4(a). It was as per Ext P3(a) Sarada settled one acre of her property containing the residential house in favour of the appellant. Sarada executed Ext P4(a) deed of cancellation to cancel Ext P3(a). Thereafter Sarada executed Ext P2(a) sale deed in favour of PW1 and his brother. The learned trial judge quoted the recital in Ext P4(a) that the appellant and his wife harassed Sarada. The learned trial judge lost sight of the fact that Exts P3(a), P4(a) and P2(a) were executed in 1997, 1998 and 2000 respectively. Any dispute between the appellant and his mother in 1998 and the execution of Ext P4(a) in 1998 are not sufficient to find any existing dispute between them on or about the date of incident. The incident was in 2007. Any dispute between them once upon a time is not sufficient to find the motive alleged against the appellant, particularly 16 **CRL.A.No. 232 of 2015** when the evidence considered by us at paragraph 16 of this judgment is available in the case. 19. Whether Sarada was unfriendly to the appellant is not of much importance. What is important is whether the appellant had any grudge against his mother. Ext P3(a) settlement deed was executed in his favour by Sarada in 1997. Sarada executed Ext P4(a) cancellation deed in 1998. The appellant never challenged Ext P4(a). In 2000 Sarada executed Ext P2(a) in favour of PW1 and another. The appellant kept quiet even thereafter. He did not challenge Ext P3(a) or Ext P2(a) in any court of law on the ground that a completed gift could not be cancelled. Sarada filed a suit for injunction in 1998 to restrain the appellant from trespassing into the property. Exts P44 and P45 are the judgment and decree in the said suit. The appellant did not go to court to contest the suit. He suffered an ex parte decree. Had there been any grudge for the appellant against his mother, in the normal course, the former would have certainly challenged Exts P2(a) and P4(a) documents and contested the suit for injunction. The evidence of DW1 suggesting that everything was engineered by PW1 should be given some weight. Reliable evidence is wanting for the prosecution to contend that at the relevant time the appellant had a grudge against his mother to end her life. 20. No document was exhibited to prove the filing of any complaint by Sarada against the appellant before any authority or 17 **CRL.A.No. 232 of 2015** anybody. The complaint to the police and the complaint to the SNDP were filed against the appellant not by Sarada, but by PW1. According to the prosecution, Sarada did file a complaint against the appellant before the Kerala Women's Commission. But no such complaint or its copy was produced by the prosecution or seized by PW28. PWs 5 and 26 were working in the office of the Kerala Women's Commission as superintendent and senior superintendent respectively during different periods. PW5 and PW28 (investigating officer) deposed that the latter seized from the former the case register in which the particulars of the complaint were entered. PW5 received back the register on Ext P10 bond. It is seen from the impugned judgment that summons was issued to the Women's Commission to produce the case register. But what it produced was a register called the destruction register in which destruction of records and registers was entered. PW26 spoke that the case register was destructed. The destruction register was marked as Ext X1. The relevant page in it in which the destruction of the case register is entered was marked as Ext X1(a). As is seen from Ext X1(a) and as is conceded by PW26, the destruction register does not show who filed what complaint against whom. The learned trial judge relied on Ext P38 to find that the complaint was filed by Sarada against the appellant. Ext P38 is the seizure mahazar relating to the seizure of the case register maintained by the Women's Commission. PW28 deposed that the contents of the complaint as entered in the case register were 18 ## **CRL.A.No. 232 of 2015** extracted by him in Ext P38 mahazar. The trial court read the said extract in Ext P38 to find that the appellant harassed his mother. But the contents of a complaint as entered in a register extracted in a mahazar is not admissible evidence. For, such extract is neither primary evidence under Sec.62 of the Indian Evidence Act nor secondary evidence under Sec.63 of the said Act. The trial court considered inadmissible evidence to find that Sarada filed a complaint against the appellant before the Women's Commission. It is not known what prevented the investigating officer from obtaining a certified copy of the complaint from the Women's Commission complaining about harassment. Above all, what the trial court highlighted was a complaint allegedly filed in 1998, almost a decade before the incident. We repeat, the prosecution failed in its attempt to prove the motive alleged by it against the appellant. 21. The learned special public prosecutor relied on three decisions, namely,(i) **Dharam Deo Yadav vs State of U.P [(2014) 5 SCC 509],** (ii) **Royson vs State of Kerala (1990 KHC 528) and** (iii) **Poonthala Aboobacker alias Babu vs State of Kerala (2012 (1) KLD 383)** . Those decisions are not helpful to the prosecution in a case where evidence to prove the complicity of the appellant is virtually nil. 22. The prosecution failed to prove the offence alleged against the appellant. The trial court did not consider the evidence in correct 19 **CRL.A.No. 232 of 2015** perspective. The appeal deserves to be allowed. 23. The appeal is allowed. The conviction and sentence impugned in the appeal are set aside. The appellant is acquitted of the charge under Sec.302 of IPC. He is set at liberty in this case. He shall be released from custody forthwith if his further detention is not required in connection with any other case. SD/- **A.M.Shaffique Judge** SD/- **A.M.Babu Judge** sks/15.3.2019 20 ## **CRL.A.No. 232 of 2015** ## **APPENDIX** APPELLANTS ANNEXURES A- TRUE COPY OF MEDICAL CERTIFICATE DATED 6.1.2016.