Santosh Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 17TH DAY OF JULY, 2019 / 26TH ASHADHA, 1941** ## **CRL.A.No.352 of 2015** **[AGAINST THE JUDGMENT IN SC 358/2014 of I ADDITIONAL SESSIONS COURT, PALAKKAD DATED 13-02-2015** **AGAINST THE ORDER IN CP 28/2014 of JUDICIAL MAGISTRATE OF FIRST CLASS,CHITTUR** **CRIME NO.930/2013 OF Kollengode Police Station, Palakkad]** ## **APPELLANT:** **SANTHOSH KUMAR, C NO.115/2015, CENTRAL PRISON, KANNUR. [S/O.RAJAPPAN, PUTHEN VEEDU, H.NO.VII/45,PANANGATTIRI,ELAVANCHERRY, CHITTUR]** **BY ADV. SRI.ANANDAN PILLAI (STATE BRIEF)** ## **RESPONDENT:** **STATE OF KERALA [INSPECTOR OF POLICE ,KOLLENGODE]** ## **OTHER PRESENT:** **SR.PP. SRI.ALEX.M.THOMBRA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON** **04.07.2019, THE COURT ON 17.07.2019 DELIVERED THE FOLLOWING:** Crl.A.No.352 of 2015 :-2-: ## **JUDGMENT** ## **N.ANIL KUMAR,J:** In this appeal preferred from the Central Prison, Kannur, the appellant, who is the accused in S.C.No.358/2014 on the file of the Court of Session, Palakkad Division, challenges the conviction entered and sentence passed against him under Section 302 of the Indian Penal Code, 1860 (hereinafter referred to for short as 'IPC'). 2. The prosecution case, in brief, is that on 29.6.2013 at about 8.30 p.m. the accused, knowingly and intentionally murdered his father, namely Rajappan by strangulating his neck with MO1 dhothi at the residential house owned by the deceased bearing door No. VII/45 of Elavancherry Grama Panchayath and the accused has thereby committed an offence of murder punishable under Section 302 of IPC. Ext.P1 First Information Statement was given by PW1 Unnikrishnan, who is none other than the brother's son of the deceased, to PW9 the Additional Sub Inspector of Police, Kollengode Police Station on 29.6.2013 at 11.45 p.m. On the strength of Ext.P1, PW9 registered Ext.P1(a) First Information Report as Crime No.930/2013 for the offence punishable under Section 302 of IPC. PW12 the Circle Inspector of Police, Kollengode commenced the investigation on 29.6.2013. On that day, he conducted inquest over the deadbody of the deceased at the residence of the deceased in the Crl.A.No.352 of 2015 :-3-: presence of relatives and local body authorities. PW12 collected fibers from ligature mark around the neck of the deceased by using cellophane tapes and same was compared with the fibers taken from MO1 dhothi and produced before the court by Ext.P8 property list. In the inquest report, PW12 recorded the statements of the witnesses. While so, PW12 received reliable information that the accused was available in front of the Govt.U.P.School at Vattekkad and then PW12 and party proceeded to the spot and arrested the accused at 9.30 p.m. by Ext.P9 arrest memo. On 1.7.2013, PW12 inspected the scene of occurrence and prepared Ext.P3 Scene Mahazar in which PW6 is a signatory. Consequent to the arrest, the accused was produced before the jurisdictional Magistrate. The accused was remanded to judicial custody. Ever since then, he has been in judicial custody. His remand was being extended from time to time. After completing the investigation, PW12 laid the final report before the learned Magistrate, who took cognizance of the offence. After complying with the usual formalities, the learned magistrate committed the case as CP NO.28/2014 to the Court of Session, Palakkad. 3. During trial, the Sessions Court appointed an Advocate through the Taluk Legal Services Committee to defend the accused, who had no means to engage an Advocate of his own choice. On 26.8.2014, charge was framed against the accused for the offence punishable under Section 302 of IPC. He pleaded not guilty to the charge whereupon the Crl.A.No.352 of 2015 :-4-: ## prosecution was permitted to adduce evidence in support of its case. 4. Evidence commenced on 24.11.2014. The prosecution examined PWs.1 to 12 and got marked 13 documents as Exts.P1 to P13 and MO1 dhothi. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied all the incriminating circumstances appearing against him in the evidence. His defence is one of total denial. 5. The learned Sessions Judge did not consider this as a fit case for recording an acquittal under Section 232 of Cr.P.C. The accused was, therefore, called upon to enter on his defence and to adduce evidence which he might have in support thereof. However, no defence evidence was adduced. After conclusion of the trial, the learned Sessions Judge vide Judgment dated 13.2.2015 convicted the accused for the offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life and to pay fine of `25,000/-, in default to undergo rigorous imprisonment for a period of two months more. 6. Considering the facts and circumstances of the case, the following points arise for consideration in this appeal. 1. Has the prosecution proved that Rajappan, who was the father of the accused, died as a result of homicidal injuries on 29.6.2013 at about 8.30 p.m. as alleged? Crl.A.No.352 of 2015 :-5-: 2. Has the prosecution proved that the accused intentionally and knowingly caused the death of Rajappan by strangulating his neck with MO1 dhothi? 3. Are the conviction entered and sentence passed against the appellant sustained? 7. The allegation is that the accused, who is none other than the son of the deceased committed patricide. Dictionarywise and popular parlance wise, patricide is the act of killing one's father. The fact that Rajappan, the father of the accused, died as a result of homicidal injuries sustained by him on 29.6.2013 at about 8.30 p.m. by strangulating his neck with MO1 dhothi, does not admit of any doubt or controversy. PW11 was a Senior Assistant Professor, Department of Forensic Medicine, Medical College Thrissur on 30.6.2013. He conducted postmortem on the body of Rajappan involved in Crime No.930/2013 of Kollengode Police Station and issued Ext.P7 Postmortem certificate noting the following injuries. ## “B.INJURIES(ANTEMORTEM). 1. Continuous non grooved, transverse, pressure abrasion 8xlcm long seen extending over the left side of neck between the left ear lobe and midline back and neck. It was placed 3.5cm below the left ear lobe 3cm below left mastoid process and 5cm below occiput. Multiple linear, crisscross abrasions seen over the front of left side of neck below the level of adam's apple. Flap dissection of neck was done under bloodless field. The subcutaneous tissues were normal. Contusion seen within the left sternocleidomastoid muscle. Inward fracture of superior bone of the thyroid cartilage on both sides at their junction with its body with surrounding infiltration of blood. Fracture greater cornua of the hyoid bone at the junction with its body with surrounding infiltration of blood. Crl.A.No.352 of 2015 :-6-: 2. A muscle deep contusion 2x2cm brown over the front aspect of upper half of left arm. A similar contusion seen over the front of upper 1/3[rd] of right arm.” 8. PW11 has opined in Ext.P7 Postmortem Certificate that the death was due to ligature strangulation. He stated that the strangulation is consistent with the history given in the K.P.A.102 that the deceased was strangled by his son inside their house using MO1 dhothi. 9. PW1 Unnikrishnan is the brother's son of the deceased. He is residing near to the residence of the deceased. According to him, on the date of occurrence around 8.30 p.m., he heard a commotion from the house of the deceased. On hearing the sound, he went to the residence of the deceased. While so, he saw that the accused and deceased were engaged in push and pull. On seeing PW1, according to PW1, the accused made an attempt to beat him. He did not like the conduct of the accused. Considering the close relationship between the parties, he took up a stick to beat the accused and retorted back. Thereafter, he went back to his house. He further stated that after a shortwhile, he again went to the house of the deceased where the victim was found dead inside the house with MO1 round his neck. When he went to the house during the second time, the accused was conspicuously absent at the scene of occurrence. Nobody else was there. He also stated that PW4, the mother of the accused had already left the house apprehending danger to her life consequent to free fight between the deceased and the accused. PW1 Crl.A.No.352 of 2015 :-7-: further stated that the deceased and the accused used to make quarrel each other after consuming alcohol. 10. PW4 is the mother of the accused. She and her husband Rajappan alone were residing in the house where the occurrence took place. All her children except the accused are residing separately. According to her, the accused used to come and reside with her frequently for somedays. The accused was a lorry driver. Whenever he came to the house, according to PW4, he used to quarrel with his father and used to manhandle him. She stated that on the date of occurrence, her husband and the accused went outside in an autorickshaw to Kollengode for consuming liquor. They purchased liquor from Kollengode after selling an _'uruli'_ and consumed the liquor. Intoxicated by the alcoholic effect, on that day, both of them had engaged in the quarrel. When she went to light the lamp around 6 p.m., the accused forcibly pushed her aside and attempted to beat her uttering that she need not light the lamp there. Apprehending danger, she had escaped from there and went to the residence of PW1. On coming to know of the occurrence, PW4 went to her house and found the deceased with MO1 dhothi round his neck. 11. PW3 is a neighbour of the accused. According to him, on the date of occurrence, the accused came to his house around 8.45 pm and told him that if he had done anything wrong, he might be pardoned. He stated that the accused was drunk on that day and he sent him away Crl.A.No.352 of 2015 :-8-: asking to come on another day. He further added that around 8.30 p.m., he heard a sound from Rajappan's house where he could find PW1 and accused engaged in push and pull. Thereafter, PW1 went to his house and switched off the light there. Still, the accused followed him and since he could not see anything, he had returned. Around 10 p.m., he again heard a sound from the house of the accused whereupon he went to the house of the deceased along with his neighbours. When he went to the house, the front door was locked from inside and the back door remained opened. There was no light inside the house. Hence, after lighting the lamp, they entered the house where they found the dead body of Rajappan lying on the ground with MO1 dhothi round his neck. He stated that at the time of occurrence, accused and deceased alone were there at their residence and the mother of the accused was at the residence of PW1. He further stated that the deceased and the accused engaged in petty quarrel frequently after consuming alcohol. 12. Ext.P12 report issued by the Assistant Director (Biology), Regional Forensic Science Laboratory, Thrissur discloses that while cotton fibers found in the cellophane pressings in item No.2 are similar to the white cotton fibers in item No.1, i.e. two pieces of white coloured lungi collected by the investigating officer. 13. The trial court found that the motive, place and time of the murder of the deceased, presence of the accused at the residence of the Crl.A.No.352 of 2015 :-9-: deceased at the time of occurrence, conduct of the accused before and after the occurrence, recovery of MO1 from the spot and nature of ligature injuries found upon the person of the deceased are all evidences to prove the offence under Section 302 of the IPC. PWs.1 and 4 adduced evidence in this case to show that the accused was present at the time of occurrence. 14. Learned counsel for the appellant Sri.Anandan Pillai, who was appointed as State Brief engagement, submits that there was no direct witness, who had seen the accused committing the crime. The learned counsel further submits that where the case is entirely on circumstantial evidences, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. According to the learned counsel for the appellant, the evidence let in by PW11, the Assistant Professor of Forensic, Medical College,Thrissur does not say that the death was homicide or suicidal strangulation. Learned counsel further submits that though the FIR was registered on 29.6.2013, the same was received in the court only on 1.7.2013. It is further contended that the accused had no intention to murder his father. According to the learned counsel for the appellant, the prosecution failed to prove the motive behind the murder. 15. Per contra, the learned Public Prosecutor appearing for the State submits that the impugned judgment and order on sentence do not Crl.A.No.352 of 2015 :-10-: call for any interference as the trial court has properly considered the materials on record and has rightly convicted and sentenced the appellant. The learned Public Prosecutor further submits that the prosecution has proved the motive as well as the last seen circumstance and therefore, the circumstances proved by the prosecution clearly establish the guilt of the appellant. Learned Public Prosecutor further submits that as per the Postmortem Report, the ligature injuries sustained to the deceased were ante mortem in nature and the cause of death was opined by the doctor as a result of ante mortem strangulation with MO1, which was sufficient to cause death in the ordinary course of nature. 16. We have heard the learned counsel for the parties and also examined the judgment in detail rendered by the trial court. In the present case, the prosecution has relied on chain of circumstances to bring to the fore that the accused committed the murder of the deceased. In our view, when the prosecution case rests upon circumstantial evidence, the circumstances should be conclusively proved and point to the guilt of the accused. Further, the circumstances so proved should not be compatible to any other hypothesis except the guilt of accused. 17. Undoubtedly, in a case of circumstantial evidence, it is the duty of the prosecution to show that all the links in the chain of circumstances must be complete and should be proved through cogent evidence. Resultantly, there is no escape from the conclusion that within all human Crl.A.No.352 of 2015 :-11-: probability, the crime was committed by the accused and none else. 18. Before considering the merits of the case, we think, it is just and proper to determine whether the trial court was justified in convicting the appellant for the offence punishable under Section 302 of IPC. For the said purpose, we would analyse the medical evidence adduced by PW11. PW11 opined that the death was due to ligature strangulation with MO1 and that the strangulation is consistent with the prosecution case. 19. PWs.1 and 4 testified that the accused was present along with the deceased on the date of occurrence. PW4 is none other than the mother of the accused. Nothing is brought out in evidence to discredit the oral evidence of PWs.1 and 4 regarding the presence of the accused at the residence of the deceased at the time of occurrence. Once it is proved that the accused was present at the time of occurrence and his father suffered a homicidal death, the burden was heavy on the part of the accused to show how his father suffered a homicidal death. Section 106 of the Evidence Act requires that a person having special knowledge of the fact to explain the same as laid down by the Apex Court in **C.S.D.Swamy** v. **The State** [AIR 1960 SC 7], **P.N.Krishna Lal and others** v. **Govt. of Kerala and another** [1995 Supp.(2) SCC 187] , **Sidhartha Vasisht @ Manu Sharma** v. **State (NCT of Delhi)** [AIR 2010 SC 2352] and **State of Rajasthan** v. **Parthu** [(2007)12 SCC 754, this legal position is clarified. The accused was admittedly present at the Crl.A.No.352 of 2015 :-12-: residence of the deceased at the time of occurrence. This is clear from the evidence of PWs.1 to 4. Under the circumstances, it was for the accused to explain as to how the deceased died of ligature strangulation. Yet another circumstance, which points a finger of doubt on the accused is that though he was fully aware that the condition of the deceased was critical and was struggling for life on account of strangulation sustained on him, he somehow opted to escape from the occurrence place. 20. One of the contentions taken by the accused is that the deceased died of suicidal strangulation. In Ext.P7 Postmortem Certificate, PW11 noted that the ante mortem injuries sustained to the deceased as continuous, non grooved, transverse, pressure abrasion 8x1cm long extending over the left side of neck between left ear lobe and midline back of neck and inward fracture of superior bone of thyroid cartilage. No doubt, these are symptoms seen in homicidal strangulation by ligature and conspicuously absent in suicidal strangulation by ligature. PWs.1 and 3 reached first at the house where the deadbody was found. They had occasion to see the deadbody in a lying position on the ground and not in a hanging position. In Ext.P3 scene mahazar, there is nothing to point out that there were indications in the house suggesting a possible suicide by the deceased. Followed by PWs.1 and 3, PW4 also came to the scene of occurrence. PW4 is a natural witness. She stated that on the date of occurrence, her husband went to the extent of selling one ' _uruli_ ' at a Crl.A.No.352 of 2015 :-13-: cheaper rate and her husband and her son consumed liquor and started quarreling each other. Apprehending danger, she left the home early and took shelter at the residence of PW1. Still, she did not support her son. She stood up by what she said before the Police. Her evidence tallies with the prosecution case. 21. Learned counsel for the appellant/accused contended that the prosecution had failed to establish the last seen theory before the trial court. On the other hand, the learned Public Prosecutor rebutted the submission made by the learned counsel for the appellant/accused with regard to the last seen theory and laid emphasis on the testimony of PWs.1 and 4, taking into account of the proximity of time between the deceased being last seen in the company of the accused and the death of the deceased. Going by the evidence of PWs.1 to 4, it is clear that the time gap is so small that the possibility of a third person being the offender is reasonably ruled out. In the case on hand,the place where the deceased and accused were last seen alive was at the residence of the deceased. In the very same residence, the deadbody of the deceased was also found. This is an important circumstance relating to the time and place while applying the last seen theory **.** The accused is none other than the son of the deceased. He was an occasional visitor to the residence of the deceased. The relationship of the deceased and the accused, the place where they were last seen together and the time when they were Crl.A.No.352 of 2015 :-14-: last seen together are also relevant facts while applying the last seen theory. ## 22. The legal principles with respect to the last seen theory are considered in various decisions of the Apex Court. In **State of Karnataka** v. **Chand Basha** [(2016) 1 SCC 501], the Apex Court held as follows:- “.........This Court had time and again laid down the ingredients to be made out by the prosecution to prove the 'last seen together' theory. The court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established................' ## 23. In **Mahavir Singh** v. **State of Haryana** [(2014) 6 SCC 716], the Apex Court observed as follows:- “Undoubtedly, it is settled legal proposition that last seen theory comes into play only in a case where the time gap between the point of time when the accused and the deceased were seen alive and when the deceased was found dead. Since the gap is very small, there may not be any possibility that any person other than the accused may be the author of the crime........” 24. We are aware of the fact that last seen evidence being circumstantial evidence, the court must peruse the evidence with great caution. However, if the evidence is clear, and is also corroborated by other evidence, there is no reason for the court to follow the principles of last seen theory. Evidence tendered by PWs.1 and 4 are reliable and they are natural witnesses to the occurrence. In the case at hand, the Crl.A.No.352 of 2015 :-15-: prosecution succeeds in leading evidence to show that shortly before the commission of the crime, the accused and the deceased were seen together at the residence of the deceased. The accused failed to offer any explanation how his father sustained a homicidal death. The accused did not offer any explanation. His defence was one of total denial. Thus, he has offered an explanation which is found to be false. No doubt, this is a strong circumstance to indicate that he was responsible for commission of the crime. It is further brought out that the accused alone was present with the deceased in the house and they started quarreling each other just before the death of the deceased. The deceased was strangulated to death with MO1 dhothi and the fact that both of them quarreling each other just before the death of the deceased in the absence of satisfactory explanation on the part of the accused is certainly a circumstance pointing to the guilt of the accused. The mere denial of the prosecution case coupled with absence of any explanation on the part of the accused is certainly inconsistent with the innocence of the accused and consistent with the guilt of the accused. The medical evidence disclosed that the deceased died of strangulation on the date of occurrence. The defence of the accused that the deceased had committed suicide by hanging and that the accused was not at home is not proved in evidence. As we have narrated above, there are certain facts pertaining to the crime that can only be known to the accused or are virtually impossible for the Crl.A.No.352 of 2015 :-16-: prosecution to prove. In this case, the prosecution has succeeded in proving that shortly before the commission of the crime, the deceased was in the company of the accused in his house where he occasionally resided. The accused had not offered any explanation for the death of the deceased. This is a strong circumstance which indicates that the appellant is primarily responsible for the crime. Added to this, PW4, who is none other than the mother of the deceased, would never depose against her own son in a court of law, though she was totally unhappy with her husband in her life. After all, mother is a mother. It is a fact. Nobody can deny it. We are of the view that the evidence tendered by PW4 is reliable and trustworthy. 25. The attack on prosecution case on the ground of delay in lodging the FIR is urged in this case as usual. It is a common feature in most of the criminal cases that there would be some delay in furnishing the First Information to the Police. In the case on hand, the occurrence is around 8.30 pm on 29.6.2013. However the FIR was lodged before the Police on 29.6.2013 at 11.45 pm. Hence, Ext.P1 FIS is not a delayed one. Of course, prompt and immediate filing of the FIR before the jurisdictional Magistrate is ideal as that would give the prosecution to expel the opportunity for any possible concoction of a false version. Going by Ext.P1(a) FIR, it was received by the Judicial First Class Magistrate on 1st July, 2013. In fact, there is no delay in registering the FIR and forwarding Crl.A.No.352 of 2015 :-17-: the same. 26. The learned counsel for the appellant/accused contended that the prosecution has failed to prove the motive for commission of the crime. It is true that in a case of circumstantial evidence, motive has an important role. However, it is also well settled that there are other circumstances, which would lead to the only conclusion that it was the accused alone and none else, who committed the murder and then the motive becomes immaterial. When facts are clear and unambiguous, it is immaterial that no motive has been proved. However, the prosecution has succeeded in proving that just before the death of the deceased, both the accused and deceased were quarreling each other. It has also come out in evidence that both of them consumed alcohol on that day. It is a matter of common experience that even a small or trifle incident has a different reaction on different persons. The deceased died of strangulation out of the dispute between the accused and the deceased on the date of occurrence. 27. The contention next raised is that the accused had no intention to cause death because he did not intend to cause injuries to any vital part of the body of the deceased. The principal question arising for consideration is as to whether the facts and circumstances established by the prosecution against the accused is murder or culpable homicide not amounting to murder. In the case at hand, the prosecution has proved that the deceased died of strangulation. The nature of the injury was very Crl.A.No.352 of 2015 :-18-: serious. Since it is a case of strangulation at the residence of the deceased, it could not be termed as accidental or unintentional or that the accused did not intend to strangulate the deceased or that the accused intended to inflict some other kind of injury. We are of the view that over and above the three elements set out above, the prosecution has further succeeded in proving that the ligature strangulation sustained to the deceased was sufficient to cause death in the ordinary course of nature. Once these four elements are satisfied, the offence is murder. Under such circumstances, it does not matter that there was no intention even to cause any injury of any kind that is sufficient to cause death in the ordinary course of nature. It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. 28. In **Virsa Singh** v. **State of Punjab** [AIR 1958 SC 465], the Apex Court ruled that even if the intention of the accused was limited to the infliction of bodily injury sufficient to cause death in the ordinary course of nature, and did not extend to the intention of causing death, the offence would be of murder. On a consideration of the acts, utterances and circumstances involved in the case, we are of the view that there are no valid grounds to alter the conviction of the accused from one under Section 302 to that under Section 304 Part II of IPC. In our view, the judgment and order on conviction passed by the trial court are based upon proper appreciation of evidence and the circumstances involved in the Crl.A.No.352 of 2015 :-19-: case. Resultantly, we uphold the judgment of conviction and order on sentence passed by the court below for the several reasons set out above. The appeal is dismissed. The appellant will suffer the remaining sentence imposed by the court below. Sd/- ## **A.M.SHAFFIQUE, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/