Renjith 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 29[TH] DAY OF JULY 2022 / 7TH SRAVANA, 1944** **CRL.A NO. 340 OF 2016** **AGAINST THE ORDER/JUDGMENTSC 310/2015 OF III ADDITIONAL DISTRICT** **COURT, KOLLAM** **CP 4/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PUNALUR APPELLANT/ACCUSED:** RENJITH, C.NO.724, CENTRAL PRISON, TRIVANDRUM BY ADV SHERLYMOL THOMAS, STATE BRIEF ## **RESPONDENT/COMPLAINANT** STATE OF KERALA REPRESENTED BY DGP, HIGH COURT OF KERALA SMT.S.AMBIKADEVI, SPECIAL GOVERNMENT PLEADER FOR ATROCITIES AGAINST WOMAN AND CHILD THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl Appeal No.340 of 2016 -2- **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------Crl Appeal No.340 of 2016 --------------------------------------Dated, this the 29[th] day of July, 2022.** ## **JUDGMENT** ## **K.VINOD CHANDRAN, J** The prosecution case is one of uxoricide and the accused was convicted and sentenced to life imprisonment. There is no clarity as to the motive, which, in the charge framed by the court speaks of the accused having doubted the parentage of the child, while the prosecution witnesses speak of a quarrel just prior to the alleged crime, when the deceased wife accused the husband of infidelity; specifically a mobile conversation with another girl. The accused stood trial in which the prosecution arrayed twenty witnesses, through whom were marked Ext.P1 to P21, including Ext. P14 series. The prosecution also produced MO1 to MO17. The defense did not examine any witness but marked two contradictions as Ext.D1 and D2, respectively from the prior statements of PW7 and PW9. 2. Adv. Sherlymol Thomas, learned State Brief, argued for the appellant and Smt. Ambika Devi S., learned Special Government Pleader (Attrocities against Women and Children and Welfare of Women and Children) argued for the respondent. According to the learned Counsel for the appellant, the Crl Appeal No.340 of 2016 -3- prosecution has miserably failed to establish the crime. There is absolutely no motive established and the FIR registered was of an unnatural death. The wife had committed suicide by pouring kerosene over herself and lighting herself ablaze. It was the accused husband who hollered out and attracted the attention of the neighbors. The accused saved the child and brought it outside the house and everybody gathered were convinced that it was a suicide. The learned Counsel would accuse the police of having arrested the accused immediately and tortured him in custody, falsely accusing him of uxoricide. The mere fact that he was present in the house and that he had purchased kerosene cannot solely bring home a conviction under Section 302. It is evident that the ration card belongs to the mother in law, who was in inimical terms with the accused and its recovery has not been proved. There is also considerable suspicion regarding the arrest on 13.03.2011, as is projected by Ext.P14 series. The accused had a valid explanation and it was his case that the immediate relatives of his wife had not tended to her properly, during her pregnancy, which resulted in her succumbing to depression, leading to the eventual suicide. The learned Counsel relied on _Satye Singh v. State of Uttarakhand (2022) 5 SCC 438_ to assail the reliance of the trial Court on Section 106 of the Evidence Act. The accused has to be given the benefit of doubt, asserts the learned Counsel for the appellant. 3. The learned Special Government Pleader however points out that a 23 Crl Appeal No.340 of 2016 -4- year old woman was killed by her own husband. There is proved, a history of marital discord and the accused was a quarrelsome person. Immediately prior to the crime, there was a quarrel between the husband and wife and there is even premeditation discernible from the fact that the accused purchased 5 ltrs of kerosene from the ration shop just prior to the crime. It was also asserted that a mere glance at the postmortem examination report would clearly show that the theory of suicide can be totally eschewed. There was no burns on the lower half of both legs and feet. Obviously the woman was lying down when kerosene was poured over her upper body and the person set ablaze. The ration card by which the kerosene was purchased was recovered from the crime scene and the ration dealer clearly spoke of the purchase made by the accused. There is no satisfactory explanation by the accused who was with the deceased in the house, the scene of crime. The accused, after the crime, had absconded from the place. The conviction and sentence are to be upheld. 4. Admittedly the poor woman met her death on the night of the crucial day and the cause of death, as deposed by PW15, based on the postmortem examination, certified by Ext.P7, was due to burns involved in approximately 85% of body surface. The testimony of PW15 was that the antemortem injuries where, dermoepidermal burns involving whole body, sparing lower half of both legs and feet. Despite the doctor having testified that the death Crl Appeal No.340 of 2016 was due to burns, she specifically stated in cross examination that she cannot say how the injury was occasioned. Despite the assertion of the State that the fact of no burns having been suffered on the lower half of both legs and feet would commend any court to eschew the theory of suicide; no query was put to the expert doctor who was examined in court. We are unable to find from the testimony of the doctor or the postmortem examination certificate that the death was even a homicide. That alone would not absolve the accused from the crime, since, the death could either be a suicide or homicide and we have to look at the other circumstances proved by the prosecution. If such circumstances together form a complete chain, with every link in place, enabling a finding that accused is the perpetrator of the crime; despite the doubt arising from the medical evidence, there could be a conviction as against the accused. 5. PW 1 is the neighbor who was also the first informant. He spoke differently from his First Information Statement, marked as Ext.P1. According to him, at around 11-11.30, while he had retired for the night, he heard a scream from the neighboring house wherein the accused and the deceased were residing along with their infant child. He opened the front door and enquired, when the accused answered and asked PW1 to come fast. When he reached the neighboring house, he saw the infant child lying on the eastern corner of the house. He attempted to take the child to his own house Crl Appeal No.340 of 2016 -6- when a number of locals gathered there to whom he entrusted the child. This was contrary to his statement in the FIS that first his daughter had proceeded to the nearby house and then summoned him. In the FIS he also said that, when he reached the house of the accused, he saw the infant child lying in a cloth and accused was standing in front of the house creating a ruckus. He saw smoke and fire coming from inside the house and he took the infant in his arms and receded to the background. By the time the neighbors reached there and the fire was doused, he also spoke of having seen the charred body of the deceased. Before court, he denied that he saw any fire or smoke or the body of the deceased. However, Ext.P1 was accepted by him and the contradictions have no relevance as regards the crime proper. 6. The husband and wife were said to have been staying in the house of PW5. PW2 was the father of PW5, PW3, her husband and PW4, her brother. All of them spoke of a quarrel in the house of the accused by around 9-9.30. PW5, her husband, brother and father spoke of having intervened and requested the accused not to create unnecessary trouble. According to the witnesses, the deceased had quarreled with the accused, accusing him of having talked with another girl on the mobile phone. It is very pertinent to notice that the charge framed by the court, which is in accordance with the final report, spoke of the motive, of the husband having doubted the fidelity of the wife as also the parentage of the infant child. There is a totally new story Crl Appeal No.340 of 2016 -7- projected before court which was also attempted to be proved through PW10, an Attender in a Children's Hospital. PW10 however, denied any contact with the accused and asserted that she had absolutely no acquaintance with the accused. She spoke of having received two or three mistaken calls, but with absolutely no connection to the accused. The Investigating Officer also did not conduct any investigation regarding the call details of the mobile phone of the accused. We need not tarry further on this aspect and suffice it to observe that there is absolutely no motive established by the prosecution. The quarrel prior to the alleged crime could either have led to a suicide or a murder, but again the latter is not a reasonable inference from the facts so far disclosed. Before we leave the issue, we cannot but notice that though by Ext.P4 mahazar a rent deed between PW5 and accused is alleged to have been seized, no such rent deed was produced or confronted to PW5. 7. PW6 is the mother of the deceased. PW7, the brother and PW9, a relative of the deceased. All of them spoke of the quarrelsome nature of the accused, quite contrary to the testimonies of PWs 2 to 5, the immediate neighbors of the accused. PW3 had employed the accused under him and was quite satisfied with his character and conduct. PW6, 7 and 9 also spoke of an instance when the accused had struck a blow on the mother in law. In any event, the husband and wife had separated from the maternal home of the wife and took up separate residence, where they were residing with their Crl Appeal No.340 of 2016 -8- infant child. In this context we have to notice that the accused in his 313 statement, told the court that the immediate relatives of his wife refused to properly tend to her during her pregnancy, which left her in depression. According to him, even on the said night, his wife rued her fate and was disappointed with the deplorable conduct of her people. The husband had attempted to pacify her and they had retired for the night. Later he heard some noise and woke up to see his wife ablaze, when he first took the child outside, away from the blazing fire. He asserted that the wife committed suicide. 8. PW8 is a Panchayat Member who witnessed the inquest, the report of which was marked as Ext.P2. PW11 is the ration shop dealer from whom the register and bill book of the ration shop was seized. Neither the original or the copy of the said documents were confronted to the witness and he merely marked Ext.P3 mahazar and deposed that the had taken back the register and the bill book on a 3[rd] party mahazar, since the same was in regular use at the ration shop, which mahazar was Ext.P3. According to him, both the accused and his mother in law used to purchase ration articles from his shop. He also deposed that since the card holder did not have power connection, there was an allotment of 5 ltrs of kerosene. It was his specific statement that the accused at around 7 p.m., on 9.3.2011, purchased kerosene in two jerrycans and also told him that one of such jerrycans was for his mother in law. Here Crl Appeal No.340 of 2016 -9- we have to notice the contention of the learned Special Government Pleader that the ration card was recovered from the scene of crime. Ext.P8 is the scene mahazar prepared by Pw19, Sub Inspector of Police. Ext.P8 speaks of the ration card having number 1209040270 having been recovered from in between the vessels kept on a wooden shelf inside the residential house of the accused, which was a BPL Card. PW17 was a witness to Ext.P8 scene mahazar which he confirmed to have signed. However none of the items seized as per the scene mahazar, including the ration card was confronted to him or elicited as having been recovered by PW19 from the scene of crime. The ration card, a certified copy as verified from the original, was marked as Ext.P10 only through PW19, the Sub Inspector of Police. 9. PW13 Village Officer prepared Ext.P5 scene plan and PW 14 Tahsildar prepared Ext.P2 inquest report and seizure of MO4 to 6 from the dead body by Ext.P6. PW16 is the scientific assistant who collected samples from the scene of crime. PW18 is the Circle Inspector of Police who took over the investigation on 11.3.2011. According to him, the ration card was seen from the shop from which the accused purchased kerosene as described in Ext.P9 mahazar, contrary to the evidence of PW19. He also identified Ext.P4 rent deed; which has to be noticed as only a mahazar seizing the rent deed. In this context we have to also notice that the witness to Ext.P4 mahazar, PW12, or PW5, the house owner who was the lessor, was not confronted with the rent Crl Appeal No.340 of 2016 -10- deed. We also do not find the rent deed to be a document produced or marked in the case. PW19 is the Sub Inspector of Police who conducted the investigation on the basis of Ext.P12 FIR, registered under Section 174 Cr P.C.; alleging just, an unnatural death. He identified the ration card as having been seized by him from the scene of crime through Ext.P8 scene mahazar. We already noticed that the said ration card was not put to the independent witness to Ext.P8 scene mahazar, PW 17 or the seizure elicited from him. 10. According to the learned trial judge on an analysis of the evidence, the prosecution has clearly proved, presumption (sic) of facts from which reasonable inference can be drawn as to the existence of other facts. The purchase of large quantity of kerosene and the quarrel between the accused and the deceased are specifically projected, which coupled with the lack of explanation according to the trial judge, drives the court to draw the only possible inference, regarding the culpability of the accused. The trial Court also relied on Section 106 of the Evidence Act to emphasise the absence of a valid explanation from the accused. We are unable to subscribe to the said findings of the trial judge. The ration card was not in the name of the accused or the deceased and was in the name of the mother in law, PW6. PW6 admittedly was in inimical terms with the accused, thus putting to suspicion, the possession of the ration card by the accused or the deceased. The name of the deceased is seen in Ext.P10, copy of the ration card, but that does not Crl Appeal No.340 of 2016 -11- prove the possession, since the ration card stands in the name of PW6 and the other family members of the deceased are also included therein. It is in this context that the recovery from the scene of crime assumes significance; which however has not been established by independent evidence. At the risk of repetition we notice that PW17, the witness to the scene mahazar was not confronted with the ration card or the recovery of the card, from the scene of crime, elicited in his testimony. More pertinent, is the fact that despite examination of PW6, the holder of the Ration Card, no question was put to her by the prosecution as to the possession of the ration card. 11. Even if we believe the testimonies of PW11, it only brings forth the fact that the accused had obtained five litres of kerosene in two jerrycans. Only one jerrycan was recovered from the scene of occurrence which contained ½ ltr of kerosene, which is marked as MO17. MO16 is a one litre plastic bottle containing 500 ml of kerosene. It has been established that the house of the accused did not have a power connection and the purchase of kerosene cannot be merely presumed to be for the purpose of committing the alleged murder. The quarrel we noticed earlier was a petty squabble between the couple which even the prosecution does not project as a motive. There is no sign of any altercation occurred in the scene of crime and the fire has not even singed the articles in the room. The motive projected by the prosecution, of doubts of infidelity nursed by the accused, is not even Crl Appeal No.340 of 2016 -12- attempted to be proved. 12. Now we come to the two circumstances of the accused having absconded from the locality and the absence of an explanation. As for lack of explanation, we cannot agree with the impugned judgment since there is a possible explanation, in the S.313 statement, as put forth by the accused. In any event, _Satye Singh (supra)_ reiterated that Section 106 does not relieve the prosecution of the burden to prove the case charged and it cannot lead to the startling conclusion that in a murder case, the accused has to prove that the crime was not committed by him. The burden, in a criminal case, never shifts from the prosecution and when the circumstances proved unerringly point to the guilt of the accused, the absence of a valid explanation becomes another link in the chain of circumstances. On the question of whether the accused absconded, the accused has a different version of being apprehended on the same day and tortured in custody. Even if we disbelieve that, the mere fact of the accused having absconded from the locality, soon after the crime, cannot be the sole ground to convict the accused. Here, we also have to observe that it was the accused who summoned the neighbors to his house between 11 and 11.30 p.m. He also assisted the neighbors in dousing the fire which is not the normal conduct of a person who has just set ablaze his wife. We cannot find an unbroken chain of circumstances, linking the accused with the crime nor even solitary links connecting the accused to the crime. The Crl Appeal No.340 of 2016 -13- proof of presence of the accused in the house, the purchase of kerosene and the petty squabble that took place just prior, cannot by itself result in a conviction for murder. Having gone through the entire evidence, we are of the opinion that there is absolutely no evidence to establish the guilt of the accused. True, the accused was present in the house and had absconded from the locality after the death of his wife was detected. However, those circumstances alone cannot be a reason to convict the accused for the offence, under Section 302 of the Penal Code. We, acquit the accused, giving him the benefit of doubt. The gist of the judgment shall be sent to the prison, in which the accused is incarcerated, for immediate release of the accused, if he is not wanted in any other crime. Sd/- K.VINOD CHANDRAN, JUDGE Sd/- C.JAYACHANDRAN, JUDGE uu 29.07.2022