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G. Rajammal vs State Of Kerala on 12 April, 2019

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

-:3:-

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

-:4:-

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
Crl.Appeal Nos.103 200/14

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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
Crl.Appeal Nos.103 200/14

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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
Crl.Appeal Nos.103 200/14

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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
Crl.Appeal Nos.103 200/14

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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
Crl.Appeal Nos.103 200/14

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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
Crl.Appeal Nos.103 200/14

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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
Crl.Appeal Nos.103 200/14

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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
Crl.Appeal Nos.103 200/14

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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.
Crl.Appeal Nos.103 200/14

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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
Crl.Appeal Nos.103 200/14

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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
Crl.Appeal Nos.103 200/14

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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
Crl.Appeal Nos.103 200/14

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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
Crl.Appeal Nos.103 200/14

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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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-:26:-

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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-:27:-

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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-:28:-

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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-:29:-

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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-:30:-

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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-:31:-

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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-:32:-

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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-:33:-

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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-:34:-

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

-:35:-

(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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-:36:-

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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-:37:-

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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-:38:-

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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-:39:-

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

-:40:-

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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-:41:-

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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-:42:-

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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-:43:-

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
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-:44:-

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
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-:45:-

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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-:46:-

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.
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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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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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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
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-: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
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-: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
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-: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
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-: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
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-: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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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,
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-: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
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-: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
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-: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
Crl.Appeal Nos.103 200/14

-:71:-

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.

Crl.Appeal Nos.103 200/14

-:72:-

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
Crl.Appeal Nos.103 200/14

-:73:-

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
Crl.Appeal Nos.103 200/14

-:74:-

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
Crl.Appeal Nos.103 200/14

-:75:-

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
Crl.Appeal Nos.103 200/14

-:76:-

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
Crl.Appeal Nos.103 200/14

-:77:-

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
Crl.Appeal Nos.103 200/14

-:78:-

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
Crl.Appeal Nos.103 200/14

-:79:-

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
Crl.Appeal Nos.103 200/14

-:80:-

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

-:81:-

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
Crl.Appeal Nos.103 200/14

-:82:-

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
Crl.Appeal Nos.103 200/14

-:83:-

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
Crl.Appeal Nos.103 200/14

-:84:-

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
Crl.Appeal Nos.103 200/14

-:85:-

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

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