VELLAN C.V. v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE P.SOMARAJAN FRIDAY, THE 6TH DAY OF OCTOBER 2017/14TH ASWINA, 1939 CRL.A.No. 2058 of 2011 (B ) ------------------------------------ AGAINST THE JUDGMENT IN SC 397/2010 of ADDL. DISTRICT AND SESSIONS COURT (ADHOC-III), KASARAGODE, DATED 09-08-2011 APPELLANT/ACCUSED :- ------------------------------------- VELLAN C.V., AGED 52 YEARS, S/o KANNAN, KALLUVALAPPU COLONY, ENNAPPARA, THAYANNUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SMT.T.SUDHAMANI RESPONDENT/COMPLAINANT : - ------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT.PRAICY JOSEPH, SPL. GOVERNMENT PLEADER BY ADV. SMT.AMBIKA DEVI S, SPL.GP (ATROCITIES AGAINST WOMEN & CHI) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.09.2017. THE COURT ON 06.10.2017 DELIVERED THE FOLLOWING: DMR/- ## **A.M.SHAFFIQUE & P. SOMARAJAN, JJ.** ------------------------------------------------ Crl. Appeal No.2058 of 2011 -----------------------------------------------Dated this the 06[th] day of October, 2017 ## J U D G M E N T ## **P. Somarajan, J.** Against the judgment of Additional District and Sessions Judge (Adhoc III), Kasaragod, dated 09.08.2011, in Sessions Case No.397/2010, the accused came up with this appeal. It is a case of alleged strangulation which resulted in the death of the victim. The ligature alleged to have been used are nylon ropes identified as MO5 series, two in numbers. 2. The deceased is one Santha, the wife of accused. They were residing in their dwelling house at Kalluvalappu Colony, Ennappara. The incident took place in and around 8.30 p.m. on 01.07.2009. The allegation is that the accused with an intention to cause death of his wife Santha strangulated her by using a plastic rope within the secrecy of their house and dragged her body out of the house and left the same on the courtyard. There is no eye witness to the alleged incident. PWs 1-4, 6 and 7 turned hostile to the prosecution. PW5 is the Doctor who conducted post-mortem examination on the body of the deceased. PW8 is the son of the deceased, Crl. Appeal No.2058 of 2011 2 who was admittedly not in the occurrence place, the house or the courtyard wherein the alleged incident took place, as he was residing far away from the said house. His younger sister was also not in the house at that time. PW9 is the photographer and PW10 is the Grama Panchayat Secretary, who was examined to prove the ownership of the building wherein the alleged incident took place. PW11 is the Village Officer who prepared the site plan. PWs 12 and 13 are the ASI and SI of Ambalathara Police Station and PW14 is the CI of Hosdurg who conducted the investigation. All the witnesses except the witness who conducted post-mortem examination, the witness who prepared the site plan and the witness who issued the certificate of ownership, turned hostile to the prosecution. The question whether the death is due to strangulation or by hanging and if it is by hanging, whether it is suicide or not, are not either discussed or adjudicated in the impugned judgment. It is not clear from the impugned judgment what are the circumstances taken up against the accused. The judgment is totally silent about the various links of circumstantial evidence pointing towards the guilt of the accused. Instead of tracing out the various links of Crl. Appeal No.2058 of 2011 3 circumstantial evidence, the Lower Court has given much importance to discuss the legal position settled by a number of decisions such as **State and others v. Ashok Kumar and Others** (1995 CRI.L.J.1789), **Emperor v. Remis Christian** (AIR 1947 Patna 152) and **Emperor v. Basangouda Yamanappa** (AIR 1941 Bom.139) without touching into the circumstantial evidence or its probative value and relevance. 3. It has come out in evidence through Exhibit P4 postmortem examination report and the oral evidence tendered by PW5 Doctor that the death was due to strangulation and not by hanging. Hyoid bone and thyroid cartilage were reported intact. The cause of death stated by the Doctor, PW5, is due to ligature strangulation. The post-mortem examination certificate, Exhibit P4, also reveals the same. Nothing was brought out to discredit the expert opinion given by PW5 Doctor regarding the cause of death - strangulation. There is no specific opinion regarding the nature of ligature used, whether it is the 'thorthu' (country shawl) or a 'nylon rope' alleged to have been recovered from a nearby place. The recovery of two pieces of nylon rope from the adjoining place of occurrence cannot be brought under Section 27 of the Crl. Appeal No.2058 of 2011 4 Indian Evidence Act mainly on two reasons; firstly on the reason that all the witnesses turned hostile to the prosecution including the witnesses to the alleged recovery of material object, two pieces of nylon rope, secondly on the reason that it was detected from the place lying adjoining to the occurrence place and it could be possible for the Investigating Officer to detect and recover it otherwise than through the accused. 4. Another incriminating circumstance brought to our notice is the factum of residence of accused and deceased alone in the dwelling house and that the incident happened within the secrecy of their house, which cast a duty upon the accused to speak what actually happened to the deceased at the time of alleged incident. The Apex Court in **Trimukh Maroti Kirkan v. State of Maharashtra** (2006 KHC 1469) settled the application of Section 106 of the Evidence Act and the circumstance which would attract its application. Paragraph 12 of the above said judgment is extracted below for reference: “12. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their Crl. Appeal No.2058 of 2011 5 choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirlahd v. Director of Public Prosecution (1944 AC 315) quoted with approval by Arijit Pasayat, J. in State of Punjab v. Karnail Singh 2003 (11) SCC 271. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: (b.) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him.” Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to Crl. Appeal No.2058 of 2011 6 establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of S.106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.” ## 5. The earlier decision rendered by the Apex Court in **State of West Bengal v. Mir Mohammad Omar and** **Others** [2000 (8) SCC 382] and the principles laid down in paragraphs 31 to 34 had taken note of by the Apex Court and extracted, which are as follows: “31. The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would Crl. Appeal No.2058 of 2011 7 be the casualty. 32. In this case, when the prosecution succeeded in establishing the afore narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this. 33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when S.114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case. 34. When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted Crl. Appeal No.2058 of 2011 8 reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if the accused would tell the court what else happened to Mahesh at least until he was in their custody.” 6. Earlier, this principle was approved and followed in **Balram Prasad Agrawal v. State of Bihar and Others** (AIR 1997 SC 1830). Then again in **Ram Gulam Chaudhary and Others v. State of Bihar** (2001 (8) SCC 311) this principle was applied and followed. 7. At the time of alleged incident, the accused and the deceased alone were residing in the said dwelling house. Though PW1 turned hostile, he had admitted that he is the elder brother of the accused and that the accused and the deceased alone were residing in that house at the time of alleged incident. It is supported by the oral evidence tendered by another witness PW2, the neighbour of accused, and PW3, the near relative of the victim, and also the oral evidence tendered by PW8, the son of the deceased. Though PWs 1, 2 and 3 turned hostile to the prosecution, they had admitted in their chief examination that the accused and deceased alone were residing in the said house during the time of alleged Crl. Appeal No.2058 of 2011 9 incident. The immediate presence of the accused was also spoken by PW1 even in his First Information Statement exhibited as Ext.P1. He had admitted during his chief examination that Exhibit P1 F.I.S. was given by him to the police in connection with the death of the deceased. The accused came to his house and informed him that his wife is lying in the courtyard of his house near the toilet. Thereon he along with his wife rushed to the place and found the deceased lying on the backside of the house near to the country toilet. He was declared hostile when he denied the suggestion put forward by the prosecution regarding the arrest of the accused and recovery of material objects. Though he was declared hostile, the part of evidence admitted by him regarding the First Information Statement before the police can be acted upon, especially when there is no inordinate delay, much less any delay in lodging the FIR. In short, the fact that the accused and the victim alone were residing in their house and the immediate presence of the accused in the dwelling house at the time of alleged incident and the cause of death as revealed through the medical evidence - death by strangulation - would cast a duty on the accused to speak Crl. Appeal No.2058 of 2011 10 what happened to his wife within the secrecy of their dwelling house in and around the time in which the incident was happened. The immediate presence of accused in the dwelling house and the fact that the incident took place within the secrecy of the dwelling house would be relevant under Section 106 of the Evidence Act. With regard to the matters within the special knowledge of the accused, as to what happened to the victim, as none else was there in the occurrence place, the dwelling place, at the time of alleged incident, no sufficient explanation, much less any explanation was forwarded by the accused. This would be an incriminating circumstance pointing towards the guilt of the accused which is sufficient enough to show his alleged involvement in the crime. 8. The subsequent conduct of the accused is also relevant as he had gone to the house of PW1 and informed him with respect to the lying of his wife on the backside of his house near the country toilet. Though PW1 made an enquiry as to what happened to his wife, he pleaded ignorance. All these are revealed by PW1 in the First Information Statement exhibited as P1. PW1 along with the accused came to the occurrence place and had seen the deceased lying on the Crl. Appeal No.2058 of 2011 11 backside of the house near the country toilet. Froth and saliva found oozing out of her mouth. The conduct of the accused that he had not attended the victim, though she was lying on the backside of the house exposed to rain, would be relevant under Section 8 of the Evidence Act and gives an additional link pointing towards the guilt of accused. 9. This is a case wherein there is no eye witness and the prosecution case is completely resting on the circumstantial evidence. One of the circumstances pointing towards the guilt of accused is the immediate presence of the accused in the occurrence place as the accused and the victim alone were residing in the said house and the incident was happened within the secrecy of their dwelling house and no explanation was forwarded by the accused what happened to his wife. She was found lying on the backside of the courtyard and exposed to rain. But, the accused did not attend her though she was lying exposed to rain in the courtyard of the said house. On the other hand, he came to the house of PW1 and informed him that the deceased is lying on the backside of the courtyard near to the toilet. This would show that he had something to conceal, by not attending the victim who was lying on the Crl. Appeal No.2058 of 2011 12 backside of the house exposed to rain. The conduct of accused by approaching PW1 just for informing him that his wife is lying on the backside of house unattended would also be relevant and admissible under Section 8 of the Evidence Act. Nobody else came to the occurrence place either at the time of alleged incident or in and around the time in which the incident had happened. So, the chain of circumstances pointing towards the guilt of accused are complete and no other hypothesis other than the guilt of accused is possible. Hence, we could not find any reason for interference to the finding of guilt of accused under Section 302 IPC and the conviction thereunder. Regarding the sentence awarded, only a lesser punishment of life imprisonment was awarded. As such, the same does not call for any interference by this Court. Hence, the appeal fails, deserves only dismissal and we do so. ## **A.M.SHAFFIQUE (JUDGE)** ## **P. SOMARAJAN (JUDGE)** DMR/-