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 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941
CRL.A.No. 103 of 2014
AGAINST THE JUDGMENT IN SC 897/2013 of SESSIONS COURT,
KOLLAM DATED 24-01-2014
CP 96/2013 of JUDICIAL MAGISTRATE OF FIRST CLASS-
I,KOTTARAKKARA
CRIME NO. 153/2006 OF Kottarakkara Police Station, Kollam
APPELLANT/2ND ACCUSED:
G. RAJAMMAL
W/O. K.A.RADHAKRISHNAN, RAJAM VILLA, NEAR
KULAKKADA VHSS, ERATHKULAKKADA MURI,
KALAYAPURAM VILLAGE.
BY ADVS.
SRI.P.VIJAYA BHANU (SR.)
SRI.MALLENATHAN.M.
SRI.M.REVIKRISHNAN
SRI.VIPIN NARAYAN
Crl.Appeal Nos.103 200/14
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RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV.SMT.S.AMBIKADEVI, SPL.PP FOR ATTROCITIES
AGAINST WOMEN AND CHILDREN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.02.2019, ALONG WITH CRL.A.200/2014, THE COURT ON THE
12.04.2019 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.103 200/14
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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 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941
CRL.A.No. 200 of 2014
AGAINST THE JUDGMENT IN SC 897/2013 of SESSIONS
COURT,KOLLAM DATED 24-01-2014
CP 96/2013 of JUDICIAL MAGISTRATE OF FIRST CLASS
-I,KOTTARAKKARA
CRIME NO. 153/2006 OF Kottarakkara Police Station, Kollam
APPELLANT/1ST ACCUSED:
BIJU RADHAKRISHNAN ALIAS K.R.BIJU
S/O.RADHAKRISHNAN, RAJAM VILLA, (NEAR KULAKKADA
V.H.S.S), ENATHUKULAKKADA MURI, KALAYAPURAM
VILLAGE KOTTARAKKARA, KOLLAM.
BY ADVS.
SMT.NISHA K.PETER
SRI.ALEX JOSEPH
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM-682031.
BY ADVS.
SMT.AMBIKA DEVI S, SPL.PP ATROCITIES AGAINST
WOMEN CHILDREN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.02.2019, ALONG WITH CRL.A.103/2014, THE COURT ON
12.04.2019 DELIVERED THE FOLLOWING:
Crl.Appeal Nos.103 200/14
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JUDGMENT
Shaffique, J.
Crl.Appeal No.200/14 is filed by the first accused and
Crl.Appeal No.103/2014 is filed by the second accused in SC
No.897/2013. The first accused has been found guilty and
sentenced to undergo imprisonment for life and to pay a fine of
`1 lakh with default sentence of rigorous imprisonment for 3
years for offence u/s 302 of I.P.C; rigorous imprisonment for one
year and to pay a fine of `1,000/- with default sentence of
rigorous imprisonment for 3 months for offence u/s 323 I.P.C. and
rigorous imprisonment for 5 years and to pay a fine of `50,000/-
in default of payment of fine to undergo rigorous imprisonment
for one year for offence u/s 201 I.P.C. Accused 1 and 2 are
sentenced to undergo rigorous imprisonment for 3 years and to
pay a fine of `50,000/- in default of which to undergo rigorous
imprisonment for 6 months each for offence u/s 498A of I.P.C.
Second accused is acquitted for the offence punishable u/s 201 of
I.P.C.
2. The short facts of the case are as under:-
Reshmi, wife of the first accused, was declared dead on
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4/2/2006. The 2nd accused is the mother of first accused. The
prosecution allege that, on the night of 3/2/2006, the first
accused picked up a quarrel with the victim, hit her on her head
and thereafter administered Ethyl Alcohol to her, and while she
was in an inebriated condition, he suffocated her with her dress
and caused death. To mislead the neighbours and make them
believe that the victim died due to cerebral hemorrhage, they
dragged her to the bathroom, made her to sit on the toilet,
removed the bathroom latch so as to make it appear that the
door was broken out from outside. They called some of the
neighbours and it was propagated that she died of hemorrhage.
The accused had also destroyed the Ethyl Alcohol bottle. While
the first accused was charged for offence under Sections 302,
323 and 201 and 498A of I.P.C., the 2 nd accused was charged for
offence u/s 498A and 201 of I.P.C.
3. The history of the case as narrated by the prosecution
would indicate that Reshmi was residing in the house of the
accused at Kulakkada as a paying guest in the year 2001 while
she was studying for the B.Ed course. Knowing that she comes
from an aristocratic and affluent family of Kollam, first accused
lured her and entered into a marriage agreement with Reshmi
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and registered the same on 21/7/2001 at the office of Adoor Sub
Registrar. According to the prosecution, they undertook a ritual of
marriage in a temple, as well. The relationship was not approved
by Reshmi’s family and they took her back discontinuing the
education. However, Reshmi continued the relationship and from
January 2002 onwards, first accused and Reshmi started living
together as husband and wife. Two children were born in the
wedlock. According to the prosecution, when the accused realised
that no wealth was coming from the side of his wife, he started
physically and mentally harassing her. She even attempted to
commit suicide. During 2005, first accused developed an
intimacy with PW14 which created a strained relationship
between the couple. Since Reshmi felt that the marriage with the
first accused was not legally valid, she was insisting for
conducting a proper customary marriage. When such a demand
was made, accused felt that he should do away with Reshmi in
order to marry PW14, and it is pursuant to the aforesaid idea that
he had done away with Reshmi, is the case.
4. In order to prove the case, prosecution relied upon the
oral testimony of PW1 to PW43, Exts.P1 to P60, MO1 to MO9 and
Exts.X1 to X5 documents were also marked. DW1 to DW3 were
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examined on behalf of the accused and Exts.D1 to D18 were
marked.
5. The learned counsel for the appellant Sri.Alex Joseph
appearing for the first accused argued that the prosecution has
relied upon several circumstances to prove the case and none of
the said circumstances has been established beyond reasonable
doubt. He argued that initially the prosecution had no idea about
the cause of death. The post-mortem was conducted by PW37.
Ext.P30 is the post-mortem report submitted by her. In her
report, she stated that the cause of death is reserved pending
laboratory investigation of chemical analysis. Ext.P21 is the
chemical analysis report in which it was revealed regarding the
presence of Ethyl Alcohol in the viscera and blood. Ext.P28 is the
pathology report in which it was reported that there was no
evidence of any significant pathological reasons to account for
the death from natural causes. In her final opinion Ext.P31, she
has stated that a definite opinion as to the cause of death cannot
be stated. However, she further opined that, “possibility of death
from Ethyl Alcohol poisoning cannot be excluded”. Learned
counsel submits that Ext.P31 report was submitted on 7/8/2006.
Subsequently, when PW41 started investigating the case, he filed
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a report incorporating S.498A of I.P.C. By Ext.P26 dated
29/6/2010, the State Forensic Science Lab had given a report of
polygraph test conducted on the accused. The test was
conducted on 27/3/2007. Certain crime related questions were
asked. The test result did not yield any result and still the
prosecution had no clue regarding the cause of death, other than
what has been stated in Ext.P31. PW43 took over investigation in
the case from 21/5/2013 to 31/8/2013. On 25/5/2013, he had
come to know that the accused had violated bail conditions on
28/4/2010, in yet another case. He filed a report to cancel the bail
of the accused and having come to know that he had committed
offence u/s 302 of I.P.C., he filed a report Ext.P44 dated
25.05.2013 to incorporate the offence u/s 302 of I.P.C. The
accused was arrested on 17/6/2013. It is argued that only after
PW43 started investigation, a theory was brought in by the
prosecution alleging that death of the deceased was caused due
to smothering and Reshmi died due to asphyxia. Prosecution
alleged that the accused had suffocated her by using her shawl
which resulted in her death. The argument is that, initially, the
possibility of the cause of death was due to consumption of Ethyl
Alcohol and after several years, a new theory had been brought
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out stating that it is an asphyxial death, for which there is
absolutely no material and the evidence of PW37 and PW38 to
that extent cannot be relied upon to convict the first accused u/s
302 of I.P.C. As far as extra-judicial confession is concerned
learned counsel argued that the prosecution relied upon the
evidence of PW11 and PW14. First of all, it is not an extra-judicial
confession which can be relied upon to convict the accused.
Secondly, the so called extra-judicial confessions were taken 7
years after the alleged incident and it is not a statement allegedly
given by the said witnesses immediately having known about it.
The extra-judicial confession allegedly made to PW11 was
immediately after the incident. But a statement was recorded by
the investigating officer only after 7 years. Similarly PW14 has
two different versions. Learned counsel submits that the
prosecution has a case that the first accused had administered
alcohol to the victim and the chemical analysis report indicates
presence of alcohol. But no material had been collected from the
house to prove that the accused had brought alcohol and its
source had not been investigated. As far as the alleged dying
declaration is concerned, the prosecution has yet another case
that before death, the deceased had complained about the
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alleged cruelty by her husband. But there is absolutely no
evidence whatsoever to indicate that the victim was leading an
unhappy life. If as a matter of fact, first accused was physically
committing any act of cruelty, some wound or injury would have
been seen on the victim. Ext.P38 does not indicate any such
wound or injury on the victim. Learned counsel also points out
that the motive alleged by the prosecution is absolutely baseless.
The marriage between the couple was registered before the Sub
Registrar Office and a ritual marriage had already been
conducted. Prosecution alleged that Reshmi wanted to have a
customary marriage which the accused had promised, but he had
no such intention due to the intervention of PW14 and therefore
the accused entertained an idea to do away with Reshmi.
Accused wanted to marry PW14, which is the motive for doing
away Reshmi. It is argued that there is absolutely nothing to
prove that such a motive had been entertained by the accused at
any point of time, especially when marriage has already been
registered and customary marriage had taken place as evident
from the oral testimony of PW22 and PW17. He also argued that
there is fabrication of material objects. MO1 to MO3 which were
taken on 4/2/2006 were sent for chemical examination only after
Crl.Appeal Nos.103 200/14
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7 years as evident from Ext.P11. Ext.P59 report dated 6/9/13
indicates that five of the items which were seized cannot be
traced out. He also argued that there was no attempt on the part
of accused to conceal any evidence. Immediately on noticing that
she was lying in the bathroom, neighbours were called and she
was taken to Pranav hospital initially and thereafter shifted to the
Government Hospital from where she was reported dead. It is
also argued that the principle of last seen theory does not apply
as there is nothing incriminating brought out to indicate that the
accused has committed his wife’s murder. It is further argued that
the prosecution had placed reliance on the testimony of the child
witness to prove that the first accused had assaulted his mother.
It is argued that the child was 3½ years of age at the relevant
time when the incident occurred and though the investigating
officer had questioned the child, he was unable to say anything.
When he is questioned after 7½ years, that is at the age of 11,
he gives a deposition to PW43 regarding the said incident, which
according to the learned counsel, is not believable. Therefore, it
is argued that the prosecution had utterly failed to prove the case
against the accused beyond reasonable doubt. That apart, there
is absolutely no evidence to invoke S.498A of I.P.C.
Crl.Appeal Nos.103 200/14
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6. Learned Senior counsel Sri.P.Vijayabhanu appearing on
behalf of the 2nd accused also contended that the only evidence
available is that there was some normal bickerings between the
mother-in-law and daughter-in-law. Second accused has not
committed any such act as alleged by the prosecution and there
is no evidence for the same. Therefore, the offence u/s 498A is
not made out against the 2nd accused.
7. On the other hand, learned Public Prosecutor
Smt.Ambika Devi argued that though Ext.P1 was registered u/s
174 of Cr.P.C. Later report was filed incorporating Section 498A of
I.P.C. and thereafter Sections 302 and 201 of IPC. She argued that
the evidence of PW11 clearly indicates that the accused had
agreed to conduct a customary marriage on 4/2/2006 at Kadakkal
Devi temple between 10.30 and 3.30. As a Panchayat member,
she was asked to arrange the marriage and on hearing the said
news, Reshmi was very happy. PW1, son of accused and Reshmi
was only 3½ years at the relevant time. He had clearly narrated
the incident which happened on 4/2/2006. He had stated that his
mother was assaulted and she was forced to drink a brown
coloured liquid. It is argued by her that evidence of PW37 and the
opinion of PW38 establishes the fact that death of the victim was
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on account of soft smothering. It is argued that when a person is
in an inebriated condition, if the victim is smothered by soft
cloth, there won’t be any visible signs and the victim dies of
asphyxia. It was pointed out that there was no other reason for
the victim to die and therefore the only reason is death due to
asphyxia. The accused had a clear motive to do away with her
and he had committed the same in his own house. He had also
confessed the murder to PW11 and PW14. It is argued that the
oral testimony of PW1 to PW6, PW8, PW9, PW10, PW11 and PW12
would clearly prove the complicity of the accused. Further, the
evidence of PW11, PW14, PW18 and PW19 would prove the
motive as well, and Ext.P4 amounts to dying declaration of the
deceased. Learned Public Prosecutor argued that in so far as
there is no evidence to show that she committed suicide or she
died on account of any natural causes, it can only be a homicide
and that too with a soft cloth. She also argued that the conduct of
the accused was also relevant. He knew about the death even
while she was taken in the jeep to the Hospital. But when she was
taken to Pranavam hospital, the Doctor advised her to be taken to
Taluk hospital. At that time, first accused asked the driver to take
a longer route so that even if she is not dead, she would die
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enroute and finally when they reached the Taluk hospital, the
Doctor declared her as dead. That apart, immediately after
knowing about the death from the hospital, accused 1 and 2 left
the place. Children were at home and they were taken to the
place of Reshmi’s parents by the neighbours. The accused fled
and was absconding. It is therefore argued that all the
circumstances which had been relied upon by the prosecution
had been proved beyond all reasonable doubt and therefore the
conviction against the accused has to be sustained.
8. Learned counsel on either side had placed reliance
upon various judgments which we shall refer to, in the course of
the judgment.
9. This is a case in which there is no direct evidence to
prove the commission of murder. Prosecution relies upon
circumstantial evidence. It is settled law and as held by the Apex
Court in Ganpat Singh v. State of M.P., [(2017) 16 SCC 353], if
there are no eyewitnesses to the crime and the case rests on
circumstantial evidence, the law postulates a twofold
requirement. “First, every link in the chain of circumstances
necessary to establish the guilt of the accused must be
established by the prosecution beyond reasonable doubt.
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Second, all the circumstances must be consistent only with the
guilt of the accused.” In Sharad Birdhichand Sarda v. State
of Maharashtra [(1984) 4 SCC 116], it was held as under:
“The normal principle in a case based on circumstantial
evidence is that the circumstances from which an
inference of guilt is sought to be drawn must be
cogently and firmly established; that those
circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused;
that the circumstances taken cumulatively should form
a chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and they should be
incapable of explanation on any hypothesis other than
that of the guilt of the accused and inconsistent with his
innocence.”
10. The prosecution places much reliance on the
testimony of PW1, the minor child in order to prove the fact that
the accused had assaulted his mother and forced her to drink
some form of liquid. Court below had also placed much reliance
on the said evidence. At the relevant time, when the incident
occurred, the child was only 3½ years old. When he was
examined before Court, he was 11 years old. After observing that
he is capable of testifying, he was examined in chief and he
stated that he remembers the day on which he has last seen his
mother. When he was asked regarding the incident that
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happened, he stated that one day by about noon, one aunty
came to their house and gave sweets. His brother consumed the
sweet and the aunty went away after talking to their mother. By
evening, his brother had fever. PW1 was asked to remain at the
neighbour’s house. Brother was taken to hospital. Later leaving
his brother at their house, mother had come to call him at the
neighbour’s house. Neighbour gave them payasam. After that,
mother took him and went home. After some time, the 1 st
accused came and asked his mother why she had taken Achu
(younger brother) to hospital without his permission. His mother
was beaten up. Mother cried. After crying for sometime, she went
to have a bath. Accused was sitting in the hall. When mother
came from the bathroom, he manhandled her mother and she fell
down near the wall. He forcibly opened the mouth of his mother
and a brown coloured liquid was given to her. His mother fell
unconscious. When he was watching the incident, he was asked
to go and lie down and he was also beaten. He cried and went
away. After hearing the sound, afraid of the same, his brother
went under the cot. After some time, when he woke up to tell his
mother that he wants to go to bathroom, mother was lying across
bathroom and bedroom. Blood was oozing from her nose. He got
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afraid and again went to the bed. He woke up in the morning.
Neighbours were there. Mother was not seen. Thereafter, along
with his neighbours, he was taken to the place where he is now
residing. He further deposed that, on the said day, mother and
the accused alone were there and there was a person who was
residing on rent. When he was asked whether he had mentioned
about all this to any person, he stated that he had mentioned
that to Suresh Kumar uncle (PW43) and in his house he had
stated some matters. In cross-examination, he stated that he
does not know the name of aunty and after mother’s demise, he
is residing with his grand parents. He further stated that even
before his mother had come to take him back, accused had come
and they quarreled and he had beaten her and mother cried. He
further states that at that time, mother of the accused (A2) was
not there. He does not remember which dress mother was
wearing when she came after the bath. In further cross-
examination he stated that he saw his mother lying across the
bathroom and bedroom and to another question as to whether
blood had oozed immediately from the nose, he said blood came
after the liquid was given to her. In further cross-examination he
stated that when the police had come and questioned him
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initially, he had only stated a few matters. Suggestion was that
he was tutored by the grand parents and the police which he
denied.
11. The defence case was that evidence of the child
witness cannot be believed for more than one reason. One is that
his statement was recorded after 7 years and by the time he was
in a position to give any tutored version before Court at the
instance of his grand parents and Police. PW1’s statement was
not recorded initially by the Police. It is also argued that at best,
his evidence would only show that his father had beaten his
mother and she was forced to consume a liquid. The chemical
examination report would show that there was Ethyl Alcohol in
her body. But the cause of death was not on account of
consumption of Ethyl Alcohol and therefore even assuming that
Ethyl Alcohol was administered, it was not the reason for her
death and an offence u/s 302 of I.P.C. cannot be made out.
Learned counsel for the appellant placed reliance on the
judgment in Jagjit Singh v. State of Punjab [(2005) 3 SCC
689]. In the above case, the Apex Court was considering a
question regarding the admissibility of the evidence of a child
witness. The statement of the child witness u/s 161 Cr.P.C was
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taken 3 days after the incident. The Apex Court did not believe
the version of child witness when she said after 5 years from the
date of occurrence that she knew the appellant because he
happened to be the son of Amar Singh and in none of the earlier
statements made by her, she had given the name of Amar Singh.
That was a case in which Court was concerned with the identity
of the accused who committed the crime and on this finding, the
appeal was allowed acquitting the accused.
12. On the other hand, learned Public Prosecutor
submitted that the evidence of PW1 has to be believed. The fact
that the statement was taken several years after the incident will
not affect the prosecution case in any manner especially when
his evidence is corroborated by the testimony of other witnesses
who had been examined in the case. She relied on the testimony
of PW9, Mercy who deposed that, on the previous day of the
death of Reshmi, she had taken the child to hospital. Her elder
son was at her house and he was playing. Reshmi came about
8.30-9.00 p.m. At that time, Reshmi’s son after consuming
payasam, was sleeping. When Reshmi came, she was also given
payasam. Thereafter she went to her house. It is argued that
when the child speaks about the facts that happened on the
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previous day, that he had gone to Mercy aunty’s house, and had
payasam, it proves the incident which happened on the previous
day and therefore there is no reason to doubt the memorising
capacity of PW1, though he was only 3½ years of age at the
relevant time. She relied upon the judgment in State of U.P. v.
Satish (2005 KHC 734), wherein the Apex Court held that: “As
regards delayed examination of certain witnesses, this Court in
several decisions has held that unless the investigating officer is
categorically asked as to why there was delay in examination of
the witnesses the defence cannot gain any advantage therefrom.
It cannot be laid down as a rule of universal application that if
there is any delay in examination of a particular witness the
prosecution version becomes suspect. It would depend upon
several factors. If the explanation offered for the delayed
examination is plausible and acceptable and the court accepts
the same as plausible, there is no reason to interfere with the
conclusion.”
13. In State of Maharashtra v. Bharat Fakira Dhiwar
(2002 KHC 1109), the Apex Court held that it cannot be said that
the evidence of a child witness would always stand irretrievably
stigmatized. It is not the law that if a witness is a child, his
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evidence shall be rejected, even if it is found reliable. The
evidence of a child witness must be evaluated more carefully and
with greater circumspection because a child is susceptible to be
swayed by what others tell him and thus a child witness is an
easy prey to tutoring. If the evidence is shown to have stood the
test of cross-examination and there is no infirmity in the
evidence, then a conviction can be based upon such testimony
alone. It is held that corroboration of the testimony of a child
witness is not a rule but a measure of caution and prudence.
Some discrepancies in the statement of a child witness cannot be
made the basis for discarding the testimony. In Satish and
Another v. State of Haryana (2017 KHC 4097), the Apex Court
has believed the version of a 12 year old boy. It is held that it is
not an invariable rule of criminal jurisprudence that without
corroboration the evidence of child witness could not be
accepted.
14. Evidence of PW43, who was the investigating officer
would show that he had taken over investigation on 25/1/2013.
He deposed that to assess the evidence of PW1, he requested for
the services of a Child Psychiatrist. He gave a request to the
Medical College Hospital Superintendent on 23/7/2013. On
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1/8/2013, in the presence of PW36 Dr.Anil Kumar, PW1 was
questioned and his statement was recorded. The said statement
was video-graphed by PW27. The DVD is produced as MO7.
Therefore, this is a case in which though the child witness was
available even during the relevant time for being questioned,
statement was ultimately taken only on 1/8/2013 with reference
to an incident which happened on 4/2/2006.
15. Initial investigation in the case was conducted by
PW34, Sri.T.James. At the relevant time, he was the Dy.S.P.,
Punalur. He conducted investigation from 4/2/2006 to 31/7/2006.
He deposed that on the basis of information received by him from
the Sub Inspector of Police, he started investigation. He prepared
the scene mahazar, examined PW1, PW2, PW4 and PW6 and he
recorded their statements. He had questioned PW1, who was in a
frightened mood. He only asked four preliminary questions. He
understood that the first accused used to assault PW1 and
Reshmi. He thought of questioning PW1 later, after he gets
accustomed to the situation and therefore he did not ask further
questions. During the relevant time, he did not get the chemical
analysis report. Later he was transferred. Since the accused were
absconding, he could not question him. Exts.D1 and D2
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statements of PW4 and PW6 respectively were marked through
him. In further cross-examination, he stated that he only asked
four questions to PW1, but he did not record anywhere, that PW1
was not in a mental capacity to give a statement. He thought that
PW1 can be questioned later and his statement was incomplete.
He suspected that it was a planned murder, but all the materials
were not available. He further stated that he could not file a
report since the cause of death was not known, and not that the
offence was not made out. He had given a statement to the
present investigating officer on 3/8/2013. The suggestion of the
defence was that he is giving evidence that PW1 was in a
frightened mood at the relevant time, at the instance of the
present Investigating Officer and to help the department.
16. From the aforesaid evidence, it is apparent that PW34
did not even attempt to take a statement of PW1. At the relevant
time, being a child, probably he would have been in a trauma and
he would have been frightened, but it is the duty of the
Investigating Officer to prove a case of homicide, if he had any
suspicion, and the child ought to have been examined after
complying with the requisite formalities. Before examining a child
witness, he ought to have obtained the assistance of a
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Psychiatrist as has been done by PW43 and questioned the child
as suggested by the Psychiatrist. He did not make any attempt to
do that, though according to him, he suspected that it might be a
case of homicide. This, attitude of PW34, the Investigating
Officer, according to us, would amount to grave dereliction of
duty and negligence in investigating a case. That apart, he says
that accused could not be questioned as they were absconding.
There is absolutely no material to indicate that any summons or
notice had been issued to the accused to enable them to appear
before the Investigating Officer. Therefore, this is a clear instance
where there is gross negligence and lapse on the part of the
concerned Investigating Officer during the relevant time, in
conducting investigation. If there is delay in examining a child
witness, there is every chance for the child witness to be tutored.
In the case on hand, PW34 says that he knew that the victim and
the child were being assaulted by the first accused. Still he did
not feel it necessary to examine the child witness after complying
with the procedural formalities. It could be further seen that the
investigation was being handled by a few other persons from
time to time. Some of them had been examined before Court.
PW39 who was the Dy.S.P. CBCID Kollam from 18/8/2008 to
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8/11/2008 had recorded the statements of PW4, PW6, PW9,
PW10, PW16, PW17, PW24 and PW37. He also seized records
from Adoor Sub Registry Office to prove the marriage agreement
between A1 and the deceased. During cross-examination, he
proved Exts.D4 and D5 statements given by PW9 and Exts.D8, D9
and D10 statements given by PW10. He stated that on 8/11/2008,
he had recorded in the CD, that the offence u/s 304-B I.P.C. was
divulged, but he did not sent the report as he got transferred.
PW41 has also conducted investigation from 10/12/2008. He had
constituted a special team for examining the accused and had
recorded the statement of witnesses. He thought that further
investigation was necessary to find out the cause of death of the
victim. In his investigation, it was found that there was a demand
for dowry and harassment pursuant to the same. Accordingly, on
15/1/2010, he incorporated S.498A of I.P.C. and a report was filed
as Ext.P33. A1 was made an accused and a report was filed as
Ext.P34. The records produced before the Sub Divisional
Magistrate Court was transmitted to the judicial Magistrate of
First Class Court, on the basis of Ext.P35 application. He
understood that the first accused was arrested in Crime
No.910/2009 of Museum Police Station and accordingly
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application was filed before the Additional Chief Judicial
Magistrate Court, Thiruvananthapuram and JFCM Court,
Kottarakkara. Based on Court orders, first accused was arrested
on 01/02/2010 and he was taken on custody from 01/02/2010 to
5/2/2010. He understood that the bathroom door could be
opened from outside also. Accused was willing to conduct
polygraph test. Ext.P36 application was submitted to the Court
and his written consent was obtained as Ext.P37. Ext.P38 is the
order of the Magistrate. He had also filed a report Ext.P39 to
make the first accused’s mother as 2 nd accused in the case. He
retired on 31/3/2010. He had examined PW4, PW12 and PW15.
He proved Ext.D12.
17. PW40 was the Dy.S.P who conducted investigation
from 27/8/2010 to 17/3/2011. He had questioned PW37 and
recorded the statement regarding the possibility of soft
smothering. First accused was again questioned on the basis of
the evidence. He deposed that he had recorded that further
evidence should be collected and investigation should be
proceeded by incorporating S.302 I.P.C. In cross-examination, the
suggestion was that he did not report incorporation of S.302 of
I.P.C. as he was not satisfied with the evidence, which he denied.
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According to him, he had recorded the same in his case diary. In
cross-examination, he deposed that he asked the Doctor, if a
female having a quantity of 120mg/100 ml of alcohol in her
system is smothered with a soft material like pillow case, whether
there is possibility for causing death without any struggle or
resistance, the Doctor had given an opinion that it is possible and
therefore he had arrived at a conclusion that it is a case of
murder. In fact it was PW43, for the first time filed a report
Ext.P44 dated 25/5/2013 inferring that it is a homicidal death.
Until then, investigating officers had either not conducted any
investigation or they were totally unaware of death being caused
in the manner now stated and it was PW43, who for the first time
took a statement from PW1. Of course, we are mindful of the fact
that in Ram Bihari Yadav v. State of Bihar and Others
[(1998) 4 SCC 517], the Apex Court held that in cases where
there is omission on the part of the investigating officers, which
are designedly committed to favour the accused, the story of the
prosecution will have to be examined de hors such omissions and
contaminated conduct of the officials, otherwise the mischief
which was deliberately done would be perpetuated and justice
would be denied to the complainant party which would shake the
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confidence of the people not merely in the law enforcing agency,
but also in the administration of justice.
18. Before dealing the arguments of either side, it will be
useful to narrate, in brief, the evidence adduced by the
prosecution.
19. PW2 is the father of Reshmi who had lodged Ext.P1 FIS
alleging unnatural death of his daughter. He deposed that
Reshmi married the first accused on her own volition by
registering the marriage. Later on, he received information that
she was living in a pathetic condition and he offered to take her
back after the marriage of his daughter. Reshmi and children
were brought back to his house. He further stated that on the
day when Reshmi died, he was at Bangalore. One Vijayakumar
informed him that Reshmi and the first accused were conducting
a customary legal marriage on 3/2/2006. On 4 th, he got
information that his mother-in-law was not keeping well and he
had to come back and when he reached at Kollam, he heard
about the demise of his daughter. He further stated that the
accused did not come for the cremation. People at Kulakkada
had brought the children to his house. When he enquired with
PW1, he was told that the accused used to assault them and their
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mother. Since no action was taken pursuant to Ext.P1, he
submitted Ext.P2 to the Superintendent of Police. In chief
examination, he was asked whether PW1 was told about the
incident and whether he had understood anything, his answer
was that he did not ask the children, as he did not want to hurt
them and he wants to give proper education to the children.
20. PW3 is the sister of Reshmi who also spoke almost in
line with what has spoken to by PW2. She also stated that Reshmi
had told her about the torture and difficulties she suffered at the
matrimonial home.
21. PW4 is the neighbour of the accused and Reshmi. She
stated that on the date on which Reshmi died, at 6.00 a.m, 2 nd
accused called her and she was told that Reshmi is inside the
bathroom and she is not opening the door, and asked her to
come and see. When she reached there, Reshmi was sitting in the
European closet of the bathroom and A1 was sitting down.
Reshmi was lying on the shoulder of A1. A1 took Reshmi to the
room of A2. A2 brought a nighty as Reshmi was wearing only a
top. Her mother sprinkled water on the face of Reshmi. She did
not respond. People in the locality came and Reshmi was taken
to the hospital in a jeep. Teacher (A2) came after several days to
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take the articles. People who assembled there, scolded her. A1
was brought for investigation purposes after a long time. She
further stated that after the incident, Reshmi’s children were in
their house and by evening they took them to Reshmi’s sister’s
house. During cross-examination, she stated that she did not say
that she saw Biju Annan (A1) holding Reshmi by her armpits and
was taken to teacher’s room and she was laid there. According to
her, she had seen Reshmi sitting in the closet and thereafter A1
took her. Ext.D1 is the contradiction in her evidence.
22. PW6 Beena Biju is a qualified nurse. She is another
neighbour. She also stated that she came after being called by
another neighbour stating that Reshmi was lying unconscious.
She checked the pulse. She could not feel the pulse. She knew
that Reshmi died, but she did not tell anybody, since she could
not confirm. She only told her husband. She asked Reshmi to be
taken to hospital. Thereafter she was taken to the hospital in a
jeep.
23. PW7 is a person who is a tenant of A1 and A2. He
resides in two rooms on the north-west direction of the house. He
is a witness to the photographs being taken and the photographs
are marked as Ext.P5 series. On the date of incident, he heard
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some sound. When he enquired, he was told that Reshmi fell in
the bathroom. Reshmi was taken to the hospital. In cross-
examination, he stated that, on the previous day, he heard
Reshmi and Biju talking until 11.30 p.m.
24. PW8 Mariyamma Joseph, is yet another neighbour.
She also deposed that after hearing the hue and cry, on the said
day, at about 6.15 a.m., she saw Reshmi being taken to the
hospital leaving the children alone in their house.
25. PW9 is Mercy, who is again a neighbour. She deposed
what happened on the previous day when Reshmi had taken the
2nd child to hospital. She further stated that her husband had
informed her about the death of Reshmi and that A2 had come to
the house 10-15 days after the incident and A1 was seen 2-3
years after the incident. Children were taken to Reshmi’s house.
26. PW10 Anoop Kumar is another neighbour. He heard
that Reshmi was not keeping well. When he reached there, about
10-70 persons were there. A jeep was parked. He took Reshmi
and she was taken inside the jeep. Accused 1 and 2 sat behind
the jeep along with Thankachayan. Chandran and Joseph, Dany
himself and Prabhakaran Pillai also joined them. First, they went
to Pranavam hospital. Dr.Ajayakumar on examining Reshmi said
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that she is serious and he asked them to take her to another
hospital. Thereafter, she was taken to Taluk Hospital. On the way,
teacher asked Thankachayan that she should save her son and
Thankachan said, “let us save her, then, we will decide”. He
thereafter came back and after changing his dress, took his bike
and went to the Kottarakkara hospital. Two minutes after he
reached, the jeep with Reshmi came. He asked Thankachayan
why they were late. He said teacher told them to send the vehicle
through Pallickal Perumkulam. Doctor came and after examining
Reshmi, they were told that she was dead. At this time, A1 was
sitting there in front of the hospital face down and he was crying.
Doctor said that the body has to be shifted to the mortuary for
post-mortem. Thankachayan had gone to have a tea along with
him. After five minutes, they came back. They did not see A1 and
A2. At the time of post-mortem, relatives of Reshmi had not
come. Himself and Thankachayan proceeded to his house in the
bike. In cross-examination, he stated that when they came back
to Kulakkada, he alone got down. Ext.D9 has been marked
wherein he stated that while they were returning, Thankachayan
and himself got down and after changing their dress, they had
proceeded to the Kottarakkara Hospital in his bike. He said he
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had not given such a statement. He also denied having given
Ext.D10 statement which states that Biju insisted to take the
jeep via Perumkulam. Jeep was proceeding in that direction.
When they reached Perumkulam, Lalu and his relatives were
standing on the road. As requested by Biju, Lalu and his brother
came behind the jeep in an auto.
27. PW11 is a social worker. She was the General
Secretary of Kerala Congress (M), Women’s Wing during 2006.
She knew the first accused, second accused and Reshmi. On one
day, she had seen A1 assaulting Reshmi. She interfered. Reshmi
was not in a position to cope up with the second accused. She
further stated that she had gone to file complaint on behalf of
Reshmi. One day morning, she had come to her house with a boy
named Lalu. Teacher has closed their house. She is unable to boil
water for the children and she wants to give a complaint and for
that she required her help. She asked Reshmi to prepare a
complaint in a paper. Reshmi wrote a complaint. They took an
auto and proceeded to Kottarakkara Circle Office and gave a
complaint and complaint was also given in Kottarakkara Police
Station. She identified Ext.P4 as the photocopy of the said
complaint. According to her, a copy was retained by her. One
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complaint was given to the Crime Branch Office, Punalur and to
the Dy.S.P.’s office. Ext.P4 was given ten days’ before the
incident. Reshmi was having fear of life which is reflected in
Ext.P4 and the same was informed to her also. She saw Reshmi
on the previous day of her death. Reshmi had called and she had
gone to their house. When she went there, the accused was also
there. Reshmi was in a happy mood. A1 has not married Reshmi
and Reshmi told her that A1 had agreed to marry her. That might
be the reason for the happiness. A1 also told her about the same
and the marriage was to be solemnized at Kadakkal Devi Temple
on the next day and they had also decided to register the
marriage at Kadakkal Panchayat Office. She called the Panchayat
President and informed the same to him. Next day, she heard
somebody knocking on her gate at 7-7.30 a.m. When she opened
the door, she saw the first accused along with the boy named
Lalu. They came into her house. When she asked why he had
come, A1 asked for water. She gave water. A1 was panicking. She
asked what happened. Then he said “അവൾ പ യ” (she has gone).
എനകക കകയബദദ റ പ യ (I committed a mistake). Then she asked
him കക പന ബജ (Biju, did you kill her), he answered ” റ പ യ” (It
happened). He further stated that “കക ലകർ എകന കക ലദ, രകകണദ”
Crl.Appeal Nos.103 200/14
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(People from Kollam will kill me, please save). She asked A1 to sit
there. When she looked back, she did not see Lalu. She called
the Block President and told him about the said case and asked
him what she should do. The President told her that he had come
after killing, leaving at hospital. She got perturbed. She closed
the front door and proceeded to the back side and called the
Dy.S.P. He was in a conference and asked her to be careful. He
further asked her to ensure that A1 remains in the same place
and that he will come by evening and take a decision. She took
A1 to her family house. She called Dy.S.P about 12 times. He
took the phone about 6-7 times and was telling that the
conference was not over. Thereafter, he did not pick up the
phone. She therefore contacted a lawyer at Punalur and
entrusted A1 to him. She came back home. Next day, morning,
the Advocate called her and told that A1 had left the place and
she was asked to pay `1,500/- as hotel bill, which she paid. In
cross-examination, she stated that she had entrusted Ext.P4 to
the police and a mahazar was prepared, but she does not
remember whether she had signed the same. She further stated
that based on Ext.P4, Police interfered and she came to know that
the door was opened. No further investigation was conducted. If
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so, she would not have died. During cross-examination, she
stated that she had informed the police on all occasions that A1
had told her that he had committed a mistake. However, she
does not know why such statement is not recorded in her
statement taken in the year 2013. She denied having given
Ext.D11 statement in which she has stated that Biju told her that
Reshmi was lying in the bath room unconscious and she was
taken to the hospital and Doctors told him that she had died.
28. PW12 is another neighbour. He also stated that he
heard a noise by around 5.30 in the morning and that when he
ran to A1’s house, A1 asked him “uncle, please help Reshmi”.
Reshmi was lying in the bed. A1 told him that Reshmi had
become unconscious. He asked them to take her to hospital.
Vehicle was called. He also accompanied them in the jeep.
Thankachan, A1, A2, Ramachandran, Rajan and Anoop also came
in the jeep to Pranavam Hospital. Doctor came near the jeep and
examined. He asked to take the victim to Government Hospital
immediately. On the way, Anoop got down at Kulakkada near his
house. Others had gone via Puthoormukku. The accused asked
them to go via Pallickal to collect some money. When they were
about to reach Pallickal, a person came and handed over some
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money to A1 and they proceeded to Kottarakkara Government
Hospital. Reshmi was taken to Doctor’s room. Doctor examined
and found her dead. He told the matter to A1. They did not know
what to do next. Doctor came and said that she has to be shifted
to mortuary and when he looked for A1, he did not see him. He
enquired with A2. They removed the body to the mortuary. When
they came back, A2 was also not seen. After some time, they
called the Panchayat member. The matter was informed to him.
5-6 persons were there. Since they had to go for work, they came
back. He had not seen A1 thereafter. A2 was seen after a week.
Ext.D12 contradiction was marked, which he denied. He had
given a previous statement that while coming back to
Kottarakkara, Anoop and Thankachan got down at Kulakkada. He
stated that he had not given Ext.D12 statement.
29. PW13 Rajendran Pillai knew Reshmi and heard about
the accused. He is a social worker and presently DCC Member of
Congress party. He knew PW11. One day morning, she called and
informed him that Reshmi is no more and that her husband was
waiting in her house. She doubted that he had committed murder
of Reshmi. He was asked to do the necessary to help. He told her
that A1 was a cheater and not to interfere and not to call him. He
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disconnected the phone. Ext.D13 is the contradiction which was
marked through him.
30. PW14 is a person who knew Reshmi and the accused.
She saw Reshmi for the first time while she was residing at
Thiruvananthapuram. She called her to give a complaint against
A1. She knew A1 long back. They have worked together in the
Kerala Housing Finance Limited. At the relevant time, she was
living separately from her husband. A1 told her that he is going to
start another company and that she would be given employment.
Later on, she got confidence in A1 and she used to talk about all
her personal matters. She further deposed that A1 had told her
that his wife Reshmi is having suspicion against him and
therefore she was not called for the inauguration of the company.
Later, she resigned from his company since he suspected that
she was having extra-marital relationship with another person.
Thereafter, he started threatening her over telephone and
making malicious allegations against her. She narrated the
relationship she had with A1 over a period of time and the
business deals they were having. A question was asked as to
what A1 had told her about Reshmi’s death, her answer was that
Reshmi had gone to take a bath stating that she wants to go to
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temple. When she did not come back, he forcefully opened the
bath room. Reshmi was sitting in the closet nude. She was
unconscious. He called the people in the locality. She was told by
first accused that the cause of death was cerebral hemorrhage.
31. PW15 was the husband of PW14. They got divorced in
November 2006. He deposed that it was on account of the
relationship PW14 had with first accused. He deposed that while
he was in Saudi Arabia, Reshmi had called him over telephone
and asked him to settle the matter with PW14 so that she will get
back her husband (A1). Reshmi called on several occasions and
she even said that if PW14 does not keep away, for her, he may
even kill her. Reshmi had called him two days before her death.
PW14 called him in the morning at 6 a.m and told that Reshmi
died on account of brain tumour. In cross-examination, he
deposed that he was seeing first accused for the first time in
Court and he had filed the divorce petition on account of PW14’s
illicit relationship with Vijayan and she was not living in a decent
manner, while she has gone for her studies at Ernakulam.
32. PW16 is a PWD contractor. He was examined to prove
the financial transaction he had with first accused and later he
found that the idea was to cheat him.
Crl.Appeal Nos.103 200/14
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33. PW17 is a ‘Santhi’ at Mahadevan Kavil temple. He
deposed that first accused and Reshmi had contacted him for
their marriage. The temple was closed. Outside the temple, they
garlanded each other and got married. It was not a marriage in
accordance with the custom by giving ‘pudava’. He had not
maintained any register. Photo was taken. Ext.P8 series was
identified by him.
34. PW18 was the Chief Reporter of a fortnightly periodical
by name Crime. She had given news in the magazine about
Reshmi. She knew Reshmi personally. Through Reshmi she got
acquainted with first accused. She was enquiring whether the
concern of the first accused was intended to cheat people.
Reshmi had come to know that A1 and PW14 were planning to
live together. She had interfered in the matter and had
requested first accused to avoid PW14. She understood that
Reshmi and children were not given money and they were in
poverty. Reshmi had gone to a flat at Trivandrum where PW14
was residing and there was a quarrel between them. First
accused shifted to another hotel after the said incident. A1 and
PW14 continued their relationship. Knowing about the same,
Reshmi had come to her office and they had gone to Cantonment
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Police Station and the matter was reported. Hotel was raided and
they were caught. A1 had assaulted Reshmi and Reshmi called
her over phone and said that she would be killed and she
requested for help. PW18 asked her to contact the Chief Editor
and in November, 2005, Reshmi met the Chief Editor and told him
that she was having fear for her life. PW18 informed the matter to
the father and mother of Reshmi and after her efforts, he had
come to take Reshmi to their house. After sometime, he had
come to the house of first accused. First accused confided that he
would not do any harm to her and they decided to have a
peaceful life. Next day at 10 a.m, PW14 called her and informed
that Reshmi died on account of cerebral hemorrhage.
35. PW19 is the Chief Editor of Crime Story. He also
deposed in the manner spoken to by PW18.
36. PW20 was the Assistant Director (Chemistry) at the
State Forensic Science Lab, Trivandrum. Ext.P11 is her report.
She had examined MO1 to MO5. Ethyl Alcohol was detected in
MO1, MO2 and MO3. MO1 is a salwar top, MO2 is a maxie and
MO3 is a kaili. Ethyl Alcohol could not be detected in MO4
churidar top and MO5 churidar. Poison could not be detected in
item Nos. 1 to 5. Ext.P12 is the serological report. Blood was not
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detected in any of those items.
37. PW21 is a dancer and film actress. She runs Jaykerala
School of Performing Arts. She is examined only to prove that she
knew the first accused. She identified Exts.P13, P14 and P15
series documents.
38. PW22 was the Sub Registrar of Adoor Sub Registry
Office on 21/10/2008. He produced copy of Ext.P16 and proved
Ext.P17 mahazar and identified Ext.P18 kaichit.
39. PW23 was the Standing Committee member of
Kulakkada Panchayat during 2006. He knew the accused and
Reshmi. Two weeks before Reshmi died, A2 called him to their
house to have a mediation with Reshmi. A1 was not there. A2 was
telling that Reshmi does not comply with whatever she says.
Reshmi was telling that marriage with A1 was not legal and
therefore a legal marriage is to be conducted. A2 was
complaining against her and that her son became like this on
account of Reshmi and that A1 was in financial trouble. He is a
witness to Ext.P19 inquest report.
40. PW24 was the Doctor who examined Reshmi on
4/2/2006 at 7.05 a.m and issued Ext.P20 certificate. He stated
that the patient was brought by Biju Radhakrishnan, her husband
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and she was brought dead. She was shifted to the mortuary and
police was informed.
41. PW25 was the Assistant Chemical Examiner at
Chemical Examiner’s Lab, Thiruvananthapuram. The sealed
bottle which received by her contained the viscera of Reshmi. She
prepared Ext.P21 report. Ethyl alcohol was detected in item nos.
1, 2 and 3. Item no.3 blood sample contained 120.75 mg of Ethyl
Alcohol in 100 ml of blood. No other poison was detected in the
samples.
42. PW26 is the Village Officer who prepared Ext.P22
scene plan. PW27 is the photographer who had taken the
videograph in a DVD which is marked as MO6. The videograph
was relating to the recording of the evidence of PW1 while
examined by the investigating officer.
43. PW28 was the Revenue Divisional Officer. He had
conducted the inquest which is marked as Ext.P19. PW29 is
Dr.R.Vinod Kumar. He was working as Scientific Assistant on
4/2/2006. He had examined the scene of occurrence in
connection with the crime. He stated that the bathroom had a tin
sheet shutter in the wooden frame. He conducted benzidine
examination of the floor and walls of the bathroom for detecting
Crl.Appeal Nos.103 200/14
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the presence of blood or any trace evidence. But no trace
evidence was detected and he did not find any incriminating
articles.
44. PW30 is a witness to Ext.P23 seizure mahazar and
Ext.P24 diary. Exts.P24 (a) and (b) are the entries in the diary. He
was the Dy.S.P. on 4/9/2007. PW31 was the Crime Branch Sub
Inspector on 21/10/2008. He had prepared Ext.P17 mahazar. He
also identified Exts.P16 and P18. PW32 was the Assistant Director
Polygraph at Forensic Science Lab. He conducted polygraph
examination of A1 on 27/3/2010.
45. PW33 was the Sub Inspector of Police at Kottarakkara
on 4/2/2006. He had recorded Ext.P1 FIS. He had prepared
Ext.P27 mahazar in the presence of Scientific Assistant. A broken
piece of ear ring was found in the bathroom which is marked as
MO8 and an iron hook was also seen. Black churidar top, pant
which were hanging on the bathroom door were taken as MO4
and MO5. Diary in the bedroom was taken as Ext.P3.
46. PW35 is Dr.A.Sarath Kumar, is the Additional Professor
of Pathology, who during the relevant time was working as
Assistant Professor in the department of Pathology, Medical
College. He prepared Ext.P28 report which is the pathology report
Crl.Appeal Nos.103 200/14
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of Reshmi. One question had been asked to him by the defence
which reads as under:-
“Is it correct that in certain situation, bronchitic asthma
may lead to sudden death ?
It depends on clinical situations (A)”.
He also stated that he found two pathological issues focal
emphysematous change and pulmonary edema in the lung
tissues. He also stated that in liver there is macrovascular fatty
changes. He also submitted that fatty tissues can be noted in
those who usually consume alcohol. In re-examination, he further
stated that focal dilations of emphysematous change can occur
when a person tries to exceed against an obstruction and there
was no pathological lesions in the lungs.
47. PW36 during cross-examination stated that a child can
remember events that takes place when he is 3 years old. He was
confronted with a question that British Book of Psychology states
that age of memory retention is 3½ years, his answer was that he
had not seen the said book. He further stated that he examined
PW1 on 1/8/2013 and he could state the mental capacity of the
child only at that time. He also states that suggestibility and
tutoring cannot be ruled out.
48. PW37 had conducted post-mortem. In her evidence, she
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stated that no injuries were found on the body. Flap dissection of
neck revealed normal and intact neck structures. Air passages
contained frothy mucus. Lungs congested and edematous,
stomach contained yellowish viscid material having no unusual
smell. Viscera and blood were preserved and sent for chemical
analysis. Vital parts of the tissues were preserved for
histopathological examination. Ext.P21 is the chemical analysis
report which revealed Ethyl Alcohol in the viscera and blood.
Blood contained 120.75 mg of Ehtyl Alcohol per 100 ml of blood.
Ext.P28 is the pathology report and there was no evidence of
significant pathological lesions to account for death from natural
causes. In the final opinion, she stated that a definite reason as to
cause of death cannot be stated. She further mentioned that the
possibility of death from Ethyl Alcohol poison cannot be excluded.
She further deposed that presence of non specific findings
present on the body has to be co-related with the circumstances
at the time of death, whereby certain unnatural causes cannot be
ruled out, even if the autopsy findings are negative and the
possibility of Ethyl Alcohol poison was not excluded at that time.
The opinion had been furnished due to lack of information
regarding the circumstances of death from any other cause.
Crl.Appeal Nos.103 200/14
-:47:-
According to her, literature available would indicate that in some
cases, alcohol can predispose the heart muscles to asphyxia and
an intoxicated person during a struggle can become irresponsive
and develop cardiopulmonary arrest and die with no anatomical
cause found during autopsy. Prosecutor, thereafter asked whether
the post-mortem finding was consistent with smothering with a
soft material after administration of alcohol and her answer was
that, a person under the influence of alcohol can be smothered
with a soft material like pillow or bed clothing using less than
moderate force without producing any injury, thereby presenting
the findings as seen in this case. Prosecutor further asked
regarding the findings consistent with the history of mechanical
asphyxia by smothering and she answered that specific findings
of smothering can be absent when soft materials are used. Non
specific findings like congestive, blue finger nails, protrusion of
tongue, dilation of pupils and congestion of brain and edema of
brain and lungs and from examination and focal emphysematus
changes seen on a microscopic examination can be seen. She
further stated that blood alcohol in the body was found to be
relatively high and can render a person under its influence
depending on her physical condition, habitation etc. Such
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-:48:-
quantity of alcohol can cause muscular incordination and nausea
and vomiting if one is not habituated to it. She further opined that
in this case, smothering is sufficient in ordinary course of nature
to cause death. She also stated that there is no evidence to
prove any suicide attempt and the approximate time was 6 to 18
hours prior to 3.30 pm on 4/2/2006. In cross-examination, she
admitted that there were no external injuries and nasal septum
and nostrils appeared to be normal. There is no injury on lips,
gums etc., but the tip of the tongue alone had protruded. When
she was asked what were the signs of asphyxial death, she
answered that cyanosis can occur when hemoglobin contents fall
below 5 gm percentage. She also narrated the common external
finding of asphyxial death. According to her, though such findings
can be seen in asphyxial death, it is not necessary in every case
as they depend on the mode of mechanical interference with
respiration, the speed with which asphyxia is achieved and the
fatal period. In death that has been instantaneous, no changes
need be seen. During further cross-examination, she stated that,
in asphyxial death, there could be specific as well as non specific
signs. The non specific signs are signs which can be seen in other
types of death as well. She further stated that in the absence of
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-:49:-
a specific history, circumstantial evidence as well as physical
findings and with the knowledge that same condition and death
can be achieved without any obvious findings, and it would be
scientifically wrong to rule out the possibility suggested by any
side. The suggestion of the defence was that she has given an
opinion as suggested by the Investigating Officer, which she
denied.
49. PW38 is Dr.B.Umadethan. The Investigating Officer,
PW43 had approached him to verify whether the accused had
telephoned him a few years back regarding the death of a women
due to Ethyl Alcohol poisoning. He however stated that he does
not remember whether it was the accused. The caller had
identified himself as an Advocate. He asked him to discuss the
case in person with the documents. The Investigating Officer had
showed him the postmortem certificate Ext.P30 and Exts.P21 and
P28. He was asked to given an opinion about the probable cause
of death of the victim. His opinion is that “the salient feature of
post-mortem certificate are those of asphyxia such as congestion
of conjunctiva, protrusion of the tongue, blue finger nails
congestion and edema of brain, frothy mucus in the air passages,
congestion and edema of lungs, congestion of all the other
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-:50:-
internal organs etc. He further opined that the noteworthy point
in the pathological report is the presence of focal
emphysematous changes in the lungs. Those findings supports
the post-mortem finding of asphyxia. He deposed that
emphysema means dialation of the air sacks of the lungs at
places. This is confirmative of the fact that the deceased had
suffered asphyxia and that could be the cause of death. A
question was asked as to whether the history of smothering with
a soft material after administration of Ethyl Alcohol is consistent
with the post-mortem findings, his answer was in the affirmative.
During cross-examination, he stated that he had authored books
on forensic science in which he had indicated death by asphyxia.
He was asked as to what were the classical features of asphyxial
death and his answer was “cynosis, petechial hemorrhage and
tardieus spots, increased capillary permeability, persistent fluidity
of blood, cardiac dialation etc. He said that the classic features
develop when obstruction of breathing is maintained for about 3
minutes and not for 30 seconds as suggested by the defence.
According to him, the colour of blood will be be dark due to lack
of oxygenation. During further examination, he stated that
abrasion on mouth and nostrils need not be present in case of
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-:51:-
smothering if a smooth object is used for the act. The victim can
struggle in case of smothering. He further deposed that 120.75
mg of alcohol in 100 ml of blood means that the person may
show signs of intoxication if he is not habituated to alcohol.
According to him, the person must have approximately consumed
180 ml of 43% of alcohol which can produce 120.75 mg of alcohol
in 100 ml of blood. He also stated that 120.75 mg of alcohol in
100 ml of blood may not result in the person becoming
unconscious. In order to cause unconsciousness, the alcohol level
must be 300 to 400 mg per 100 ml. He further stated that if the
mouth is opened forcibly, there may be injuries to the internal
mucosa of the mouth and lips and gums even without applying
sufficient force the mouth can be opened provided the nostrils
are closed. He further opined that absorption of alcohol in blood
takes 5 to 60 minutes for 60 ml of alcohol depending upon
various factors such as food in the stomach, dilution of alcohol
etc. He also stated that in dead body, pupils will always be
dilated and it is not correct to say that he was expressing his
opinion on the compulsion of the Investigating Officer. In re-
examination, he stated that all the classical signs of asphyxia
need not be present in every case and he also stated that 120
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-:52:-
mg of alcohol in 100ml of blood in a person who is not
habituated to alcohol can render that person incapacitated and
unable to offer any struggle. He also stated that nasal bleeding
can occur in a case of death by asphyxia.
50. PW39, PW40, PW41 and PW43 were the investigating
officers. PW42 is the person who had executed the non-bailable
warrant against the first accused. The accused was arrested on
17/6/2013. Ext.P40 is the non-bailable warrant and the report is
Ext.P41.
51. The defence had examined three witnesses. DW1 is an
autorickshaw driver who knew the accused as well as Reshmi. He
had given evidence stating that he had dropped Reshmi to the
house in Pallikkal once and when she came out, 1½ hours later,
he found her behaviour very strange and he had informed the
matter to the accused. He was cross-examined and later recalled
and further examined. On verification of his license, passport etc
it was found that whatever he had stated was wrong and that he
had obtained a driving licence for running auto only on 8/7/2012.
He had apologized to the Court and stated that he had testified at
the instance of first accused and DW2.
52. DW2 had given evidence stating that 2 nd accused had
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-:53:-
complained that Reshmi used to go out from the house in the
morning to meet a lady at Pallikkal and returned late at night
after consuming alcohol. On the date of death, he got
information from the 2nd accused that Reshmi was lying
unconscious in the bathroom. By the time he reached their
house, she was taken to the hospital. He had gone to the hospital
and took the 2nd accused to the Police Station at Kottarakkara.
Since she was found to be not keeping well, she was taken to
Pranavam hospital as advised by the police.
53. DW3 was examined to prove that there was a valid
marriage between the first accused and Reshmi. He also deposed
regarding the financial problems in the company. He stated that
first accused absconded because he had constant threat from the
debtors. On knowing about the incident, he also had gone to the
hospital. He along with Lalu accompanied the accused to the
police station and the matter was reported. A2 became
unconscious and she was taken to the hospital. Reshmi’s relatives
came to the police station and created a scene. He along with his
sister-in-law and Reshmi’s children went to Reshmi’s house for the
funeral. He did not enter the house on account of the strained
relationship with PW2. He also deposed that Reshmi was leading
Crl.Appeal Nos.103 200/14
-:54:-
a happy life with the first accused.
54. After considering the relevant aspects, which had been
highlighted by the prosecution especially the motive, cause of
death which was found to be by soft smothering, the dying
declaration, extra-judicial confession, the oral testimony of PW1,
the conduct of the accused and the false explanation which was
given by the accused when questioned u/s 313 of Cr.P.C, it was
found by the Court below that both the accused were guilty for
having committed the offences for which they were punished.
55. From the evidence placed on record, the attempt of
the prosecution was to establish that the first accused is a
notorious individual, a person who tortures and assaults mentally
as well as physically his wife, a person who assaults his son, a
person who has relationship with many woman, a person who had
defrauded many people, and has several creditors. To a certain
extent, the prosecution was able to establish the character of the
first accused through oral testimony of PW1 to PW3, PW11, PW14,
PW15, PW18 and PW19. However, the question to be considered
in the case on hand is whether he had committed murder of his
wife or whether he destroyed the evidence or that he along with
his mother has committed any offence as contemplated u/s 498A
Crl.Appeal Nos.103 200/14
-:55:-
of I.P.C.
56. The cause of death of Reshmi is the moot point. PW37
after having verified the chemical analysis report and
pathological report opined that the death might be on account of
ethyl alcohol poisoning or rather ethyl alcohol poisoning cannot
be ruled out, but no poison had been detected in the chemical
analysis report. There is evidence to prove presence of ethyl
alcohol while the viscera of the victim was examined. How did
she consume ethyl alcohol is the question to be answered.
Defence has a case that she used to consume alcohol whereas
prosecution case is that, on the previous date on which she died,
first accused forcibly gave her a liquid which apparently is alcohol
and the dress MO1, MO2 and MO3 showed the presence of ethyl
alcohol. To prove the aforesaid fact, prosecution relies upon the
oral testimony of PW1 alone, who is a child witness.
57. It is settled law that evidence of a child witness cannot
be discarded merely for the reason that he/she is a child. If the
child has given answers without any confusion and had withstood
the cross-examination, there is nothing wrong in the Court
placing reliance upon the evidence of the child witness. But, in
this case, yet another factor assumes much relevance. The child
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-:56:-
was 3½ years of age at the time when the incident happened.
The investigating officer who had questioned the child did not
attempt to record the statement of the child immediately. During
his evidence, PW34 has stated that he had only put a few
questions and since the child was not in a mental state to give
answers, he thought of questioning the child later. It is relevant to
note that the said child was not questioned for another 7 years
and only when PW43 came into the picture, that the child was
examined and a statement was recorded. Until such time, the
child was remaining with the grandparents of Reshmi and there is
every chance that the child had been tutored to state such things
which he had spoken before Court.
58. In K.Venkateshwarlu v. State of Andhra Pradesh
(AIR 2012 SC 2955), the Apex Court while placing reliance on the
evidence of a child witness held that it is safe and prudent to
look for corroboration for evidence of a child witness from the
other evidence on record because while giving evidence, a child
may give scope to his imagination and exaggerate his version or
may develop cold feet and not tell the truth or may repeat what
he has been asked to say, not knowing the consequences of his
deposition in Court. Careful evaluation of the evidence of a child
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-:57:-
witness in the background and context of other evidence on
record is a must before the Court to rely on it.
59. Of course, the learned Public Prosecutor has a case
that the child’s deposition had been corroborated by the evidence
of PW9. who is a neighbour. Child apparently stated that on the
previous day, he was with PW9 who had given her payasam and
later mother had come and had taken him back home. In fact,
PW9 was questioned by PW39 between 10/8/2008 and 8/11/2008
and her statement was very much available while questioning
PW1.
60. It is settled law that the investigating officer must
record the statement of eyewitnesses to the occurrence at the
earliest opportunity after registration of the case. If there is
failure to record the statements for a considerably long period,
the evidentiary value of such statements may be diminished.
Whether delay in recording such statements are fatal to the
prosecution depends on the facts and circumstances of each
case. In Ganesh Bhavan Patel v. State of Maharashtra (AIR
1979 SC 135), the Apex Court observed as under:-
“Normally in a case where the commission of the crime is
alleged to have been seen by witnesses who are easily available,
a prudent investigator would give to the examination of such
Crl.Appeal Nos.103 200/14-:58:-
witnesses precedence over the evidence of other witnesses.”
61. However, during investigation process, it is always
necessary that the statement of witnesses are to be recorded at
the earliest. Delay in recording such statements may result in
embellishments or additions or manipulation to the prosecution
case.
62. PW1 deposed that the liquid was administered forcibly
by A1, and his mother was beaten up. In which event, definitely
there will be some injuries seen on the body of the victim.
According to PW1, he had shown the manner in which mouth of
his mother was opened forcibly by A1 and the liquid was poured
into her mouth. Definitely she would have struggled, she would
have objected to it, but, on the next day while conducting post-
mortem, PW37 could not find any internal or external injury on
the deceased. That apart, PW1 in his evidence also stated that he
saw his mother bleeding from her nose in which there could have
been some internal injury which also was not seen during
autopsy. No trace of blood was identified in any of her dresses or
even in the scene of occurrence. In the light of the aforesaid
facts, it is not safe to rely upon the oral testimony of PW1 to
prove that the accused had administered alcohol to Reshmi.
63. Even assuming that alcohol was administered to
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-:59:-
Reshmi by the first accused, apparently the cause of death is not
on account of alcohol content in her body. No poison was
detected in her body by the forensic/chemical examiners.
According to the prosecution, she died due to soft smothering by
a cloth, a pillow case or a soft substance. In order to prove the
theory of smothering, PW37 and PW38 were examined. Both of
them opined that if the victim is in an inebriated condition, death
could be caused by soft smothering and the victim dies due to
asphyxia. It could be seen that asphyxial death is a theory, that
the prosecution has brought in finally when they were at dark
regarding the cause of death. The accused was arrested in a
cheating case and later he had violated the conditions of bail. The
investigating Officer, PW43, sought for cancellation of bail and
the accused was arrested. A polygraph test was conducted which
did not yield much result. Death by asphyxia due to soft
smothering was approved by an expert PW38 Dr.Umadethan.
They have arrived at such a conclusion due to the fact that there
was no other ailments or conditions by which death could occur
due to natural causes. If death is not caused due to natural
causes, it could only be on account of asphyxia and certain
symptoms of asphyxia was also found. In fact, according to
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-:60:-
PW40, during his investigation from 27/8/2010 to 17/3/2011,
PW37 had opined that death could be due to asphyxia. PW38 is
an expert who had not witnessed the post-mortem, but he had
given opinion based on the documents made available to him.
During evidence of PW37 and PW38, they were asked regarding
the classic symptoms of asphyxial death which they had
narrated. But admittedly none of the classic symptoms of
asphyxial death were present in the victim and the only reason to
arrive at such a conclusion is on account of the fact that no other
natural causes were found.
64. The learned counsel for the appellant placed reliance
upon the judgment of the Apex Court in Subramaniam v. State
of Tamil Nadu [(2009) 14 SCC 415] wherein the Apex Court had
occasion to consider a case of asphyxial death. Specific
reference is made to Modi’s Medical Juisprudence and Toxicology
23rd Edition and it is held at paragraphs 15, 17, 18 and 23 as
under:-
“15. In the author’s opinion, to come to a definite
conclusion it is very essential to look for evidences of
violence in the shape of external marks surrounding the
mouth and nostrils or on inside the mucosal surface, or
on the chest. According to the learned author,
circumstantial evidence should always be taken into
Crl.Appeal Nos.103 200/14-:61:-
consideration to establish the proof of death from
suffocation.”
“17. We wish the expert would have been forthright in
her view in regard to the cause of death. A different
conclusion was required to be arrived at keeping in view
the fact that a large number of symptoms were absent
which ordinarily point out to the cause of death of
asphyxia by smothering. Most of the symptoms noticed
by Modi should have remained present. There was
frothy fluid discharge of blood from mouth and nose.
However, no frothy fluid blood was found on the pillow.
It may not be imperative but that could have been a
lead to a fairly definite opinion. It is in the
aforementioned situation, the learned Sessions Judge
opined that death might not have been caused by
asphyxia, stating:
“In the present case there is reasonable doubt in regard
to the cause of death of the deceased and it is not safe
to rely upon the evidence of PW 8 solely for the purpose
of coming to the conclusion that the deceased’s death is
proved by the prosecution to be homicidal. While
viewing on that basis, PW 10, the medical officer in her
evidence had mentioned as detailed below:
Generally during the time of asphyxia the eyes will be
open and the tongue will be protruding outside. Further
the right side of the heart might be full of blood and the
left side being empty. Further at the time of asphyxia,
the kidneys also should be found distended and likewise
the brain. Generally on account of asphyxia and death is
being caused Tardieu’s spot should be in the eyes.
Further at the time of asphyxia there should be hybakia
should be found. (Hybakia means the oxygen particles
Crl.Appeal Nos.103 200/14
-:62:-
will be lesser in number in the blood.) Further the face
and head will be found distended. Synochiam with
numerous petichia should be found. Further there
should be mucus in the mouth and throat. Further
generally during the time of asphyxia, there should be
alviovis and idimafluid in the lungs. Further there should
be camaris with collappus with intersavin enpiceomia.
But the aforesaid signs were not found in the dead body
and therefore there was no opportunity for the
deceased to die on account of asphyxia.
18. The learned Judge noticed that PW 10 was specific
in her statement that paleness in the brain could not
have been noticed as it had liquefied by that time. It
was also found that PW 10 had deviated from her earlier
opinion and stated that it was not correct to say that no
opinion of cerebral anoxia could be given or arrived at in
the case of liquefaction of the brain. No saliva, blood
and tissue cells were found on the pillow; no scratches,
distinct nail marks, or laceration of the soft parts of the
victim’s face was noticed. It was not brought to notice
that pillow was a soft one or not. No bruising or
laceration was found in the lips, gums and tongue.”
“23. So far as the circumstance that they had been
living together is concerned, indisputably, the entirety of
the situation should be taken into consideration.
Ordinarily when the husband and wife remained within
the four walls of a house and a death by homicide takes
place it will be for the husband to explain the
circumstances in which she might have died. However,
we cannot lose sight of the fact that although the same
may be considered to be a strong circumstance but that
by alone in the absence of any evidence of violence on
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-:63:-
the deceased cannot be held to be conclusive. It may be
difficult to arrive at a conclusion that the husband and
the husband alone was responsible therefor.”
65. The symptoms which had been noticed by PW37 are
also symptoms which could be seen in other instances as well.
That is the reason why the symptoms are classified differently in
case of sure asphyxial death and symptoms which are common in
most of the cases of death. Soft smothering in asphyxial death is
a theory which can normally happen. But in the case of an adult,
there will be certain specific symptoms when force is being
applied to cause death. PW37 and PW38 were of the opinion that
since the victim was under the influence of alcohol, a soft
smothering would have been enough to ensure her death. But
this is only a theory and cannot be taken for granted for arriving
at such a conclusion. The learned Public Prosecutor while
placing reliance upon the judgment in Anant Chintaman Lagu
v. State of Bombay (AIR 1960 SC 500) submitted that in a case
where the allegation was that death was caused due to poisoning
and in the medical evidence it is not found so, the accused could
still be convicted for murder. But that was a case where the
accused himself was a medical man. He brought the deceased to
the hospital. He gave a misleading name to cover her identity,
Crl.Appeal Nos.103 200/14
-:64:-
that he gave a wrong age and history for her treatment, that he
wrote a letter suggesting that she had a brother in Calcutta who
did not exist and finally he abandoned the corpse to be dealt with
by the hospital as an unclaimed body. The said case cannot be
equated to the factual circumstances available in this case. In
this case, various circumstances that had been projected by the
prosecution could not be proved.
66. Yet another circumstance which had been highlighted
and argued by the Prosecutor was that the accused being present
in the house at the relevant time, he is bound to explain the
cause of death. Of course, this is a case in which the presence of
accused in the morning hours is proved by the oral testimony of
witnesses who are neighbours and it was the accused 1 and 2
along with others who had taken the victim to the hospital.
67. The learned Public Prosecutor had placed reliance on
the judgment in Trimukh Maroti Kirkan v. State of
Maharashtra [(2006) 10 SCC 681] in order to contend that when
the accused was present in the house, what happened to the
victim in his house is a matter to be explained by him in terms of
S.106 of the Evidence Act. Trimukh Maroti Kirkan [supra],
was a case in which the prosecution case was that the appellant’s
Crl.Appeal Nos.103 200/14
-:65:-
wife died on 4/11/2006. There is evidence to show that she was
being ill-treated and harassed for non-payment of money. She
used to inform her family members regarding the ill-treatment
and harassment. She was often beaten up and was not provided
food. She was taken back home and was again taken to the
appellant ‘s house and the in-laws were asked not to ill-treat her.
A few months thereafter, he heard that she died due to snake
bite. Case was registered u/s 174 Cr.P.C. Post-mortem
examination conducted on the body of the victim revealed that
she died due to asphyxia as a result of compression of neck.
Thereafter the case was taken up and the accused was charge
sheeted u/s 302 of I.P.C. Post-mortem also revealed certain other
injuries on the body of the victim. There was no eyewitness to
the incident and the case rested on circumstantial evidence
alone. It was held that where an accused is alleged to have
committed murder of his wife and the prosecution succeeds in
leading evidence to show that shortly before the commission of
crime, they were seen together or the offence took place in the
dwelling home where the husband normally resides and he does
not offer any explanation how the wife received injuries or offers
an explanation which is found to be false, it is a strong
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-:66:-
circumstance which indicates that he is responsible for
commission of the crime. It is also held that in a case based on
circumstantial evidence, when an incriminating circumstance is
put to the accused, and the accused either offers no explanation
or offers an explanation, which is found to be untrue, then the
same becomes an additional link in the chain of circumstances to
make it complete.
68. On the other hand, the defence while placing reliance
on the judgment in Joydeb Patra v. State of West Bengal
[2013 Crl.L.J. 2729] wherein the Apex Court after relying upon the
judgment in Sucha Singh. v. State of Punjab [(2001) 4 SCC
375] and Vikramjit Singh v. State of Punjab [(2006) 12 SCC
306] argued that S.106 of the Indian Evidence Act does not
relieve the prosecution to prove its case beyond all reasonable
doubt. Only when the case has been proved, the burden in regard
to such facts which was within the special knowledge of the
accused may be shifted to the accused for explaining the same.
69. The Court below, in fact, accepted the principle of soft
smothering and found that since in the dresses MO1 to MO3 of
the deceased ethyl alcohol was detected, it is possible that soft
smothering could have been done using either MO1, MO2 or MO3.
Crl.Appeal Nos.103 200/14
-:67:-
In fact, the prosecution does not have a specific case as to how
the soft smothering was done. That apart, the defence had also
taken up a contention that MO1 to MO3 were sent for chemical
analysis after 7 years and there is every possibility for having
fabricated the same. Otherwise, there is no reason why presence
of ethyl alcohol is detected even after such a considerably long
period. Of course, during the evidence of PW20, he says that he
received 5 sealed parcels on 10/9/2013 based on which he had
prepared Ext.P11 report. While being examined, even in the chief
examination itself, he stated that blood was not detected in any
of the items as reported in Ext.P12. He further stated that the
period of retention of ethyl alcohol molecules in items like MO1 to
MO3 will depend upon various circumstances such as
atmospheric temperature, humidity, whether it was exposed to
direct sunlight and if the alcohol is mixed with water. In fine
condition, ethyl alcohol could be detected even after years. The
Prosecutor had also put questions to him as to how the ethyl
alcohol is denatured, he stated that for denaturing the same,
ethyl alcohol is added and coloured dye like methane blue and
aniline blue is added. Sometimes, denature is done by adding
benzodite. When asked what the colour of alcohol is if methane
Crl.Appeal Nos.103 200/14
-:68:-
blue or aniline blue is added, he stated that the liquid would be
blue.
70. PW29 has given evidence stating that he had
examined the bathroom and conducted benzidine examination of
the floors and wall of the bathroom, but he could not find any
trace of blood or any incriminating articles. The presence of ethyl
alcohol in the dresses MO1 to MO3 of the deceased would only
prove that she had consumed alcohol but it does not prove the
fact that alcohol was forcibly administered to her unless the
version of PW1 is believed. PW1’s evidence is not supported by
any forensic evidence as there is no physical injury on the victim,
but for the fact that there is evidence to prove that ethyl alcohol
in her system and that too a quantity required for inebriation.
71. In the light of the aforesaid discussion, we do not think
that any materials had been brought out to infer a forcible
administration of ethyl alcohol and the consequent soft
smothering as alleged by the prosecution.
72. The prosecution further placed reliance upon the dying
declaration in the form of Ext.P4 and the oral evidence of PW18
and PW19. The learned Public Prosecutor placed reliance on
State of U.P. v. Ramesh Prasad Misra and Another [(1996)
Crl.Appeal Nos.103 200/14
-:69:-
10 SCC 360], wherein the Apex Court held that S.32(1) of the
Evidence Act is wide enough to include statements of deceased
regarding the circumstances of the transaction which resulted in
his death i.e., the motive behind the criminal act in question. It
was further held that when the deceased had informed the
witnesses of the ill treatment meted out to her, due to her
inability to secure the articles, presumption could be raised u/s
113B of the Evidence Act. That was a case of dowry death where
the appellant had committed murder of his wife. She was four to
six weeks pregnant. She died due to asphyxia by strangulation as
found by PW1 Doctor, who conducted autopsy. Thereafter, the
dead body was burnt and the entire body was burnt except the
feet. The facts of the said case has no application to the facts of
the present case. Ext.P4 is a photostat copy of a complaint
allegedly written by the victim and submitted to the police on
22/1/2006. In Ext.P4, there is reference that she married the first
accused based on a love affair at a temple on 10/1/2002 without
the consent of her parents. Though she had requested to register
the marriage, accused 1 and 2 did not permit. She has two
children. First accused is now residing with PW14 which was
consented to by A2. A2 is trying to evict them from their house.
Crl.Appeal Nos.103 200/14
-:70:-
When she goes from the house, all rooms are locked except one
room and even the kitchen is closed. She is unable to give even a
glass of hot water for her children. A1 was caught with PW14 in a
hotel at Trivandrum. Both of them had collected lacks of rupees
from various persons claiming to be for the purpose of a project.
Therefore, she sought for a request that she should be permitted
to live with her husband and she should not be forced away from
her house. Apparently, there is nothing in Ext.P4 in the form of a
dying declaration. Further, it is only a photocopy and there is no
evidence to prove that the said complaint was filed before any
police officer. PW11 says that in 2013, she had handed over copy
of the said letter to PW43. Apparently, Ext.P4 only indicates about
the difficulty she faced on account of A1 having relationship with
PW14 and A2 forcing her to move out of the matrimonial home as
she wants A1 to continue the relationship with PW14. Though
much had been argued by the learned counsel for the appellant
and the defence and the Court below had also placed reliance on
Ext.P4, nothing turns out in Ext.P4 to indicate that Reshmi
apprehended that she would be killed by her husband and
therefore Ext.P4 has absolutely nothing to do in the matter.
Relevancy of such statement would arise only when statement is
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made either regarding the cause of death or as to any
circumstances of the transaction which resulted in her death. At
best, Ext.P4 can be utilized for the purpose for saying that PW11
had interfered in the matter and a complaint was given to the
police, but, as already stated, there is no record of any such
complaint being filed before the police and therefore no reliance
could be placed on Ext.P4 for any purpose whatsoever. The Court
below itself has found that the declaration which she has made
in terms of Ext.P4 or the testimony of PW18 and PW19 was not
under circumstances where she was foreseeing her immediate
death. She was only apprehending that something may happen
to her under the circumstances in which she was living.
73. Yet another circumstance that has been highlighted by
the prosecution is the extra-judicial confession allegedly made by
the accused to PW11 and PW14.
74. The trial Court has believed the evidence of PW11 and
PW14 to arrive at a conclusion that the statements given by them
amount to extra-judicial confession. We do not think that on a
perusal of the evidence of PW11 or PW14, any of the statement
of the accused which they have stated would form an extra-
judicial confession.
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75. In Tejinder Singh v. State of Punjab [(2013) 12 SCC
503], the Apex Court held that if the disclosure of extra-judicial
confession is not made within a reasonable time, and the delay
in informing the police regarding the same has not been properly
explained, it is not safe to rely upon the said extra-judicial
confession. That was a case in which there was 16 days delay to
disclose the extra-judicial confession.
76. In fact, in Crl.Appeal No.918/13 decided by this Court
on 4/10/2018, in Arun and another v. State of Kerala, a
Division Bench of this Court in which one among was a party, had
occasion to consider the evidentiary value of extra-judicial
confession. After referring to the Apex Court judgment in
Narayan Singh v. State of Madhya Pradesh (AIR 1985 SC
1678), it was held that the evidentiary value of extra-judicial
confession depends upon the nature of the circumstances, the
time when the confession was made and the credibility of the
witness who speaks to such confession.
77. In Podyami Sukada v. State of M.P. [(2010) 12 SCC
142], Apex Court held that the evidentiary value of extra-judicial
confession depends upon the trustworthiness of the witness
before whom the confession is made and that law does not
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contemplate that the evidence of an extra-judicial confession in
all cases should be corroborated.
78. In Gura Singh v. State of Rajasthan [(2001) 2 SCC
205], the Apex Court held that if the extra-judicial confession is
made voluntary and it is not under coercion, inducement or
promise of favour, the same can be the sole basis of conviction.
79. We have already narrated the evidence of PW11. While
being cross-examined, she denied having given a statement as
Ext.D11. Ext.D11 would show that she had given a statement
that the accused had come to her and stated “she had gone”.
Then she asked her “have you killed”. Thereafter when she asked
for details, he said, “Early morning Reshmi fell in the bathroom
and was lying unconscious. On seeing the same, she was taken
to hospital and Doctor said that she is already dead”. But her
version in the evidence was totally different from Ext.D11. In her
evidence she states that the accused said “it so happened” and
that he asked for her help. At any rate, it would not give any
indication about an extra-judicial confession. Court below
committed serious error in relying upon the same as extra-judicial
confession.
80. In the evidence of PW14 also, there is absolutely
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nothing to indicate the alleged extra-judicial confession. In the
evidence of PW14, she only stated that accused told him that
Reshmi had gone to take a bath in the early morning stating that
she was going to temple. For sometime, she did not open the
door. A1 therefore kicked open the door. Reshmi was sitting in the
closet nude. She was unconscious. He called the people nearby
and she was taken to hospital. A1 told her that she died of
cerebral hemorrhage. There is absolutely nothing in her
statement to infer an extra-judicial confession.
81. Yet another circumstance projected by the Court below
was regarding the explanation given by the first accused to
various persons about the death of Reshmi. We do not think that
any such statements of the accused as spoken to by the
witnesses have any bearing on the primary question as to
whether he was responsible for her death. Even the Forensic
Surgeons were unable to find out the cause of death and the
investigating agency could arrive at a possible view only after
several years. Therefore, even the accused may not know what
exactly was the cause of death and taking into account his nature
as projected by the prosecution, it is possible that he may give
different versions as well. But none of such statements can be
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treated as a conduct which would lead to an inference that he is
responsible for the death of Reshmi.
82. One of the main circumstances which the prosecution
places reliance upon is the motive. The Court below points out
that one of the main motive of the first accused was that he had
an impression that he was trapped into getting married with
Reshmi. After marriage, it was understood that Reshmi’s family
did not have any assets. Court below placed reliance on the
evidence of PW5, the husband of PW3. He deposed that he
received a call from one Nair and was told that he had married
from Poilakada family and they do not have any asset. According
to him, from the voice he heard, it is that of the first accused.
During cross-examination, he stated that he does not remember
the date on which his statement was recorded. Suggestion of the
defence was that his statement was recorded on 17/8/2013. He
deposed that it might be a nearby date. He further deposed that
he was seeing A1 for the first time in Court and according to him,
he had heard his voice in television and therefore he had
identified the same. It is a very curious answer. PW5 sees A1
only for the first time in Court and to say that he had identified
his voice since he heard his voice in television cannot be
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believed. Even otherwise, he being the son-in-law of PW2, there is
every reason for him to give such an evidence and apparently the
said family was in loggerheads with A1.
83. Court below also finds that from the evidence of PW14,
PW16 and PW21, it is clear that the first accused was longing for
wealth. There cannot be any dispute about the said fact as the
evidence indicates that he was trying all sorts of ventures to
make money. It is further held that continuation of the
relationship with PW14 is also a motive for committing the
murder and finally that he had given an offer to Reshmi that he
would conduct a customary marriage. It is stated that A1 had a
liking to PW14, which is evident from the deposition of PW15 also,
who is the husband of PW14. Hence, it was planned that Reshmi
should be avoided and for that purpose, he had planned to kill his
wife. He married her thinking that she comes from an affluent
family and he thought that he may also get part of the wealth
which his wife may get. But unfortunately, the parents of Reshmi
did not support the marriage and they did not care to give much
concern, after the couple got married. A1’s idea was to make
money and he got the support from PW14 and in that
relationship, he thought of doing away with Reshmi. PW15 also
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deposed that the reason for his separation with PW14 was the
involvement of first accused. But when he was confronted with
the pleading in the petition which he filed before Court for getting
a divorce, his allegation was that PW14 was having relationship
with another person by name Vijayan. The prosecution also has a
case that the first accused promised to enter into a customary
marriage with Reshmi and for that reason she was very much
happy. PW11 deposes to the aforesaid fact and it was on the day
when the marriage was to be solemnized that Reshmi died.
According to the prosecution, the attempt of A1 in offering to
enter into a customary marriage was only to pacify Reshmi, but,
he never intended to do the same, and on the day, when she was
ready to have a customary marriage, she was killed. According to
the defence, already the marriage was registered by executing an
agreement and a customary marriage was performed as evident
from the testimony of PW17 and, therefore, there was no reason
why another marriage had to be performed.
84. Even if the prosecution is able to establish that the
first accused was having an intention to marry PW14, unless the
prosecution is able to establish that death of Reshmi was caused
at the hands of A1, the same cannot be treated as the motive
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and that by itself may not be enough to implicate the accused for
the crime. Therefore, while considering motive as well, the
ultimate question would be whether Reshmi died at the hands of
the first accused.
85. Yet another circumstance which was relied upon by the
prosecution and found by the trial Court is regarding the conduct
of the accused. According to the prosecution, the accused were
playing a drama after having committed the murder of Reshmi by
A1. He asked his mother to call the neighbours. At the time when
PW4 came to the scene, who was the first to arrive there, Reshmi
was sitting in the closet and the first accused was found holding
her. The second accused, had in fact, told PW4 that Reshmi was
in the bathroom and they are unable to open the bathroom. It is
in evidence that the bathroom could be opened from either side.
Therefore, the statement of A2 that the bathroom could not be
opened is not believable. But, one aspect which has been
highlighted by the defence was that when PW4 came to the
scene, she did not see the deceased sitting in the closet and A1
holding her. In her previous statement to the police, she had
stated that when she came to the house, A1 was taking Reshmi
to the bedroom. Therefore, PW4 was made to improve her case
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during evidence and that part of the statement that she saw the
accused holding Reshmi inside the bathroom while Reshmi was
sitting in the closet is an embellishment and a material
contradiction. Thereafter, Reshmi was taken to the bedroom and
water was sprinkled on her face. Since there was no response, at
the instance of the neighbours, she was taken to the hospital. In
the meantime, PW6, a nurse by profession had checked the pulse
of Reshmi and she could not locate pulse and she thought that
Reshmi had already died, but she did not mention the same to
any person. Reshmi was initially taken to a nearby hospital and
the Doctor on examining her asked her to be taken to the Taluk
Hospital. Prosecution has a case that while proceeding to the
Taluk Hospital, the accused asked the driver of the vehicle to take
a deviated route. PW10 was also a passenger in the said vehicle.
He got down at a junction at Kulakkada. He went home, changed
his dress and came in a motorbike. Eventhough he reached the
hospital, the jeep reached only after 2 minutes, and he was told
that at the instance of accused the jeep had come through
another road. Learned Public Prosecutor argued that the whole
intention of the accused was that even if Reshmi was not dead, if
the vehicle is delayed, she may die enroute and that is the reason
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for taking such a longer route. But none of the witnesses
examined in the case would say that the jeep had taken a longer
route. This argument is based on PW10’s statement that jeep
reached 2 minutes after he reached the place. But it could be
seen that there were others also in the jeep who were all
neighbours and if it was a longer route, they would not have
permitted the same, and none of them has stated that it was a
longer route.
86. Yet another circumstance which had been pointed out
by the prosecution is that immediately after knowing about the
death of Reshmi in the Taluk Hospital, A1 and A2 were not seen
which itself indicates their involvement in the crime. A1 was
absconding and A2 had come back to the house only after 10
days. In the meantime, the children were sent to their
grandparents’ house by the neighbours. A1 and A2 also did not
attend the cremation of Reshmi. It is true that the absence of A1
and A2 immediately after knowing that Reshmi was dead from
the Taluk Hospital, is a circumstance against them. It is also
pointed out that first accused was absconding. But from the
records or from the material documents, we do not find that the
police had in fact searched for the accused at any point of time.
Crl.Appeal Nos.103 200/14
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No summons or notice has been issued to him during the
aforesaid period. Reshmi’s death was considered to be an
unnatural death and other than examining a few witnesses by
PW34, he did not do anything for 3 months while he was in
office. In the meantime, the scientific evidence available did not
indicate that death was a homicide. The explanation of PW37 that
death might be on account of soft smothering had come only
after about 4 years when PW40 examined PW37. In between,
PW41 based on his investigation incorporated S.498A of I.P.C. But
still, no attempt had been made to summon the accused or
question him. If he was absconding, steps would have been taken
to issue an arrest warrant against him, but no such steps were
taken. Only at a late stage that the investigating agencies found
that the death could be caused by soft smothering and that too
by PW43 that they thought of the first accused. Of course, the
conduct of the accused, his behaviour and the manner in which
he had behaved subsequent to the incident are all incriminating
factors, which may be an additional link to the chain of
circumstances. But, as already mentioned, unless we are able to
pinpoint the actual cause of death and whether the accused had
any involvement in the same, a mere suspicion regarding his
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previous or subsequent conduct by itself will not be enough to
implicate him in an offence of murder.
87. In Jose v. Sub Inspector of Police, Koyilandy and
Others (AIR 2016 SC 4581), the Apex Court held that suspicion
however grave, it cannot take the place of proof and that the
prosecution in order to succeed on a criminal charge cannot
afford to lodge its case in the realm of “may be true”, but has to
essentially elevate it to the grade of “must be true”. Further, it
was held that, in a criminal prosecution, the Court has a duty to
ensure that mere conjectures or suspicion do not take the place
of legal proof and in a situation where a reasonable doubt is
entertained in the backdrop of the evidence available, to prevent
miscarriage of justice, benefit of doubt is to be extended to the
accused.
88. Therefore, we are of the view that the accused is
entitled for the benefit of doubt and he is entitled for acquittal for
the offence u/s 302 of I.P.C.
89. The accused had also been convicted for the offence
u/s 201 of I.P.C. Allegation of the prosecution was that he had
destroyed the evidence in his house. Apparently, there is no such
evidence other than an assumption that he had destroyed the
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evidence. Such an issue arises for consideration only if we find
him guilty u/s 302 of I.P.C. There is absolutely no material to
indicate that accused had destroyed any evidence. According to
the prosecution, the bottle in which he had brought a liquid was
not seen thereafter. If the contents of the liquid was in the dress
of the deceased as spoken to by the prosecution witnesses,
necessarily some liquid might have fallen to the ground as well.
Even according to the prosecution, the accused did not attempt
to destroy the dress of the deceased. That apart, if force had
been used by the first accused to pour the liquid into the mouth
of Reshmi, some visible marks would have been found in her
body, which is also lacking. We have already discussed the
evidence of PW1 and found that the said evidence cannot be
admissible on account of various factors. Under such
circumstances, we are of the view that the accused cannot be
found guilty u/s 201 of I.P.C.
90. Both the accused had been convicted for offence u/s
498A of I.P.C. S.498A reads as under:-
” 498A. Husband or relative of husband of a woman
subjecting her to cruelty.–Whoever, being the
husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three years
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and shall also be liable to fine.
Explanation.–For the purpose of this section, “cruelty”
means–
(a any wilful conduct which is of such a nature as is likely
to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or
physical) of the woman; or
(b) harassment of the woman where such harassment is
with a view to coercing her or any person related to her
to meet any unlawful demand for any property or
valuable security or is on account of failure by her or any
person related to her to meet such demand.”
Though PW2, PW3, PW18 and PW19 has a case that the first
accused had been subjecting Reshmi to cruelty, first of all, those
are all information received by them from Reshmi and it is
hearsay evidence which is not acceptable by a Court of law. But
they have said that they have seen some marks in the body of
the victim. PW3 says that she had seen some bruises in the body
of the victim. But it is relevant to note that at the time of
postmortem, no injuries were found on the body of the victim.
That apart, none of the ingredients of S.498A had been brought
out in evidence. The Court below had proceeded to arrive at a
conclusion that an offence u/s 498A is made out on materials
which are not admissible in evidence especially the hearsay
information received by some witnesses from Reshmi. Therefore,
we do not find any evidence to convict the accused u/s 498A as
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well. The accused are entitled for acquittal.
The appeals are allowed. The conviction and sentence
passed by the learned Sessions Judge is hereby set aside. The
first accused is acquitted of the charges u/s 302, 201 and 498A
of I.P.C. and that of the second accused u/s 498A of IPC. The first
accused/appellant in Crl.Appeal No.200/14 shall be released
forthwith, if his presence is not required in connection with any
other case. With reference to the 2nd accused/appellant in
Crl.Appeal No.103/2014, she is already on bail and her bail bond
shall stand cancelled.
Sd/-
A.M.SHAFFIQUE
JUDGE
Sd/-
A.M.BABU
Rp //True Copy// JUDGE
PS to Judge