Mohammed Ashraf @ Ashraf vs State Of Kerala

Raja Vijayaraghavan, J.

The above appeal is directed against the judgment dated 31.10.2018 in S.C. No. 71 of 2015 on the files of II Additional Sessions Judge, Manjeri, as per which, the appellant, who was charged for having committed offences punishable under Section 302 of the IPC was found guilty and was sentenced to undergo imprisonment for life.

The prosecution case:

The accused, Mohammed Ashraf @ Ashraf, is one of the sons of Muhammed, the deceased in the instant case. Muhammed had four children with his wife, Khadeeja (PW21), out of which two were sons. The accused was the eldest. While so, Muhammed expressed his intent to marry Fousiya (PW6) during the subsistence of his marriage with Khadeeja. This decision was met with strong opposition from the family members, who found it revolting. Despite their objections, Muhammed remained adamant about proceeding with the alliance and, for this purpose, flew down to India on 03.09.2014. On the date of his arrival, his daughters, Ummukulsu (CW4) and Hajara (CW5), reached the family home. On 04.09.2014, after lunch, Khadeeja left the house to drop her daughters at their respective matrimonial homes. At that time, the deceased, the accused, PW20, and her minor child were present in the house. At about 3-3:30 p.m, PW20, along with her child, went to the neighbouring house of Khadeeja (PW4). While she was at the neighbour's house, the accused was seen leaving the premises. At approximately 5:00 p.m., PW21 returned home, only to be shocked by the sight of her husband lying on the bed with multiple cut injuries on his neck and other parts of the body. Panicked, she rushed out and informed Ashique (PW1), who resided nearby.

Registration of the Crime and it’s aftermath:

PW1 (Ashique), a neighbour, immediately rushed to the Police Station and lodged Ext.P1 First Information Statement, based on which the crime was registered. PW23, the Circle Inspector of Police took over the investigation on 05.09.2014. He visited the crime scene and prepared Ext.P2 inquest report. In the course of the investigation, he seized MO1 (chopper), MO7 (Lungi) worn by the deceased and MO6 (bedsheet). A Scientific Expert was summoned to obtain trace evidence, if any. On 06.09.2014, the accused was arrested and Ext. P16 report was submitted to the Court, detailing his name and address. The investigation was later taken over by PW24, Inspector of Police, Tanur, who examined additional witnesses. After completing the investigation, the final report was laid before the jurisdictional Magistrate.

Committal proceedings were initiated in accordance with the law and the case was committed to the Court of Session, Manjeri. After hearing the prosecution and the accused, charges under Section 302 of the IPC were framed and when the same was read over, he pleaded not guilty and claimed that he be tried in accordance with law.

Evidence Tendered:

To prove the case of the prosecution, 24 witnesses were examined as PWs 1 to 24 and through them, Exts.P1 to P17 were exhibited and marked. MOs 1 to 7 were produced and identified. After the close of prosecution evidence, the incriminating materials arising from the prosecution evidence were put to the accused under Section 313 of the Cr.P.C. The accused denied the incriminating circumstances and maintained that he was innocent. On the side of the defence, the learned Judicial Magistrate, who recorded the 164 statements of eyewitnesses, was examined as DW1 and those statements were marked as Exts.D1 to D6.

The findings of the learned Sessions Judge:

The learned Sessions Judge, after evaluating the entire evidence, came to the conclusion that only circumstantial evidence was available to prove the guilt of the accused. The main circumstances relied on by the learned Sessions Judge are:

a) The accused had a strong motive to murder his father.

b) The theory of “last seen” was applied to hold that the accused was last seen in the company of the deceased.

c) The presence of blood of unknown origin in the banyan of the accused seized at the time of his arrest on 6.09.2014.

d) The purchase of the murder weapon by the accused from PW8, 20 days prior to the incident.

d)  The extrajudicial confession by the accused to Abdul Samad (PW7) that he had murdered his father.

e) The abscondance of the accused from the house after the incident.

Contentions of the appellant:

Sri. Mohamed Jameel, the learned counsel appearing for the appellant, raised the following contentions:

a) None of the circumstances relied on by the learned Special Judge/Additional Sessions Judge-II to arrive at the finding of guilt could be considered as reliable enough to point unerringly towards the guilt of the appellant. He referred to the observations in State of Gujarat v. S.D Soni [AIR 1991 SC 917], and it is urged that the circumstances established were not consistent with the hypothesis of the guilt of the accused.

b) The evidence of PWs 20 to 23, as well as that of PW2, the brother-in-law of the deceased, clearly revealed that all the children, including the daughters, and the wife of the deceased, were vehemently opposed to his proposed marriage with PW6.

c) The testimony of PW6 establishes that the deceased had informed her on the day of his arrival that his daughters had confined him in his room and manhandled him. In that view of the matter, the finding that only the accused had the motive to murder Muhammed is baseless.

d) The Doctor who conducted the postmortem noted that the stomach of the deceased was full of undigested rice. If that be the case, the murder would have been committed immediately after lunch and not after 4:30 p.m., as alleged by the prosecution. At that time, PWs 20 to 22 were present at home. It is urged that the learned Sessions Judge erroneously applied the doctrine of "last seen" in this case.

e) None of the witnesses stated that the accused was wearing MO2 to MO4 on 04.09.2014 or that he was wearing the same attire when he was arrested on 06.09.2014. Not even a drop of blood was detected on his shirt (MO2) and pants (MO3). Although blood was detected on the banyan, its origin remain undetermined. It is incomprehensible that there would be blood on the banyan without any corresponding traces on the shirt, particularly considering the multiple cut injuries found on the body of the deceased.

f) The failure of the prosecution to take the blood sample of the accused to ascertain whether the blood found on the banyan was, in fact, his own.

g) No reliance ought to have been placed on the evidence of PW8 Alavikutty to conclude that the weapon was procured by the appellant. No evidence was let in to substantiate the said fact. Even if it is taken that the weapon was procured by the appellant, it could have been used by anyone else, as everyone in the household harboured animosity towards the deceased.

h) No reliance could have been placed on the extra-judicial confession allegedly made by the accused to PW7, particularly when it was brought out that PW7 never disclosed the furnishing of any such statement when initially questioned by the police.

i) None of the family members had stated that the accused absconded from the place of occurrence. PW7 had not even mentioned the day on which the accused allegedly met him. In other words, there was no evidence to conclude that the accused had absconded.

Submissions of the learned Public Prosecutor:

Sri. Renjith T.R., the learned Public Prosecutor, submitted that the learned Sessions Judge has evaluated the evidence of the witnesses and has correctly arrived at the finding of guilt. It is submitted that the witnesses have stated that it was the appellant who had purchased the chopper, which was used for murdering his father. The appellant was seen going out of the house immediately after the incident, by PW3, an autorickshaw driver, and PW20, his sister-in-law. Finally, it is submitted that the presence of blood, though of unknown origin, in the banyan of the accused is an additional circumstance linking him with the offence.

We have considered the submissions advanced and have perused the records.

Cause of Death

The first question that is to be determined is whether the death of Muhammed was homicidal. PW21 is the wife of the deceased. In her evidence, she stated that when she returned after dropping her daughter at her in-law’s house, she found Muhammed lying on his bed with injuries on his neck and other parts of his body. The postmortem of the deceased was conducted by PW12, the Assistant Professor and the Police Surgeon. In his evidence, he stated that he had conducted the autopsy of Muhammed on 05.09.2014 and had issued Ext.P3 postmortem report. He has noted six incised wounds on the body of the deceased. According to him, the deceased died due to chop-cut injuries inflicted on the neck. Since there is no dispute with regard to the above fact, it can be concluded that the death of Muhammed was homicidal.

Evaluation of the evidence of the witnesses:

Now, we shall evaluate the evidence adduced by the prosecution to determine whether the proven circumstances are consistent with the hypothesis of the guilt of the accused.

PW21 is the wife of the deceased Muhammed. She stated that Muhammed had come from Saudi Arabia on the previous day of the incident, i.e., on 03.09.2014 at 9:00 a.m. Within half an hour, there occurred a wordy altercation between the father and the son. She stated that on 4.09.2014, PW20, the accused, the deceased, CW4 (Ummukulsu), and PW22 (Hajara) were present in the house along with her. At about 1:00 p.m., she took Hajara to her husband’s house and dropped her there. Thereafter, she gave food to her husband. After that, she took CW4 to her husband’s house. When she left the house, the accused, PW20 , and her husband were present in the house. At about 5-5:15 p.m., she returned to the house and found the front door to be closed. She entered the house through the kitchen door and found her husband lying with bleeding injuries on the bed. The accused was not found anywhere. She enquired with PW20 Fousiya as to what had happened to Muhammed. She stated that earlier in the day MO1 chopper was found in the possession of the accused. While she was cross-examined, she stated that, before marrying her, Muhammed had married once. According to her, Muhammed used to beat her and used to fight with her brother. Muhammed used to pick up fights with Hamsa, an immediate neighbour, and on the day he landed, there was an altercation between Muhammed and Hamsa. She stated that the entire family including herself were against Muhammed getting married. All that has come out from the evidence of PW21 is that there occurred a wordy altercation between father and son and when she left the house, PW20 was also there in the house along with the deceased and the accused.

PW20 is the daughter-in-law of the deceased. She is married to Abdulla, the brother of the accused. She stated that she, along with her husband, were residing in the same house. According to her, it was on 03.09.2014 that the deceased had come from the Gulf. Her sisters-in-law had all come down to meet their father. The accused was working in Bangalore and two days prior to the incident, he had come from his place of employment. The accused told her that when his father comes, only sons need to be at home. However, her father insisted that she also be there. On the date of the incident, her husband had gone for work. In the morning, when the deceased attempted to go to the bank, the accused prevented the deceased from going out of the house. He had a chopper in his hand. The daughters of the deceased persuaded Muhammed to stay at home to prevent any untoward occurrence. Muhammed insisted that whatever happened, he would get married. She also stated that the entire family was against Muhammed getting married again. She had seen the accused sharpening the chopper and this action being questioned by his sisters. After giving lunch to Muhammed, PW21 went to drop Ummukulsu at her matrimonial home. At that time, PW20, her child, the accused and the deceased were at home. The deceased went to take a nap and at that time, the accused was sitting in the dining hall and watching television. At about 3-3:30 p.m, PW20 went to the neighbouring house of PW4 (Khadeeja) with her child. After some time, she saw the accused going to the market. At about 5:00 p.m., the mother returned. She entered the house through the kitchen door and it was she who found the deceased lying on the bed bleeding with cut injuries. She identified MO1 weapon. During cross-examination, she stated that she was not on good terms with her husband after the incident. According to her, her statement was recorded after ten days. Her 164 statement was also recorded by the learned Magistrate. It was brought out in cross-examination that neither in her 161 statement nor in her 164 statement, she has stated that the sisters-in-law were brought to the house, or that the accused told her that only the sons need be at home when the father comes, or that her father had insisted that she stay in the house, or that when the father attempted to go to the bank, the accused obstructed him and threatened him with injuries. In other words, most of the incriminating aspects in her evidence were brought out as embellishments from her earlier statements to the police and the Magistrate. It was brought out that she had not witnessed the accused sharpening the chopper. It was also brought out that she had not stated to the police in her earlier statement that the accused was at home and was watching television after the mother had left. She stated that all the family members were against Muhammed marrying again. She stated that she has animosity towards the accused as he used to help and support her husband.

PW22 is Hajara, the sister of the accused. According to her, on 03.09.2014, her father-in-law, Nasar, had brought her to her parental home. On 04.09.2014, when Muhammed was about to go to the bank, the accused obstructed him with a weapon and prevented him from going out. CW4 intervened and persuaded the father to go inside the house. She stated that when she was leaving, PWs 20, 21, deceased and CW4 were at home and the accused was found sharpening the chopper. In cross-examination, she stated that her statements had been recorded by the police as well as the Magistrate. It was brought out that in her previous statements, she did not mention that the accused was carrying a weapon with him or that he obstructed or threatened the father. Thus all the incriminating facts stated by the witness in the chief examination were brought out as embellishments from her previous statements. She also admitted that none of the children liked their father getting married to PW6.

PW2 is the brother of PW21. He stated that he was informed about the death of the deceased by PW21. He stated that the children as well as the sister were against the deceased getting married. He had told the accused not to pick up a fight with his father. In cross-examination, he stated that there used to be disputes between his sister and the deceased and that the deceased used to physically manhandle his sister.

PW3 is an autorickshaw driver. He stated that the accused was his friend and sometime in September 2014, at about 4:45-5 p.m., he saw the accused coming from his house and walking towards the main road.

PW4 is Khadeeja, a neighbour. She stated that when the deceased attempted to go out in the morning, the accused obstructed him. However, in cross-examination, it was revealed that in her previous statement, she had not mentioned this fact.

PW5 is Asmabi. She is also a neighbour. She stated that one day, she saw the accused standing with a chopper in his hand near the well. She stated that after lunch, PW21 took her daughters to their matrimonial homes. At about 4:00 p.m, PW20 came to her house with her child. The accused was found walking outside the house. After some time, the accused was found leaving the house. Thereafter, she heard a loud cry. In cross-examination, it was brought out that the police had recorded her statement after 1 ½ months. It was brought out that in her earlier statement, she had not mentioned that Ashraf was walking outside the house, had gone out, or that PW21 had stated that Ashraf had done away with his father.

PW6 is Fousiya. She stated that Muhammed had approached her and asked for her hand in marriage. This was about 2 years prior to his death. Muhammed used to call her over the phone regularly. In cross-examination, it was brought out that the elder daughter of Muhammed, one Jumaidya had called her over the phone and had threatened her that if she did not withdraw from the marriage, she would be cut into pieces. She stated that the deceased had called her in the morning and had informed her that his daughters had locked him up in the night on the previous day and had physically assaulted him.

PW7 is one Abdul Samad. He stated that the accused had a shop in Bangalore. He used to go to Kerala very often. One day, Ashraf came to his shop, borrowed his phone and made some calls. At about 10:00 a.m. in the morning, Ashraf left the shop. At about lunch, Kerala Police landed in his shop. He stated that the accused had called him up and told him that he had murdered his father and that he was going to surrender. In cross-examination, it was brought out that in his earlier statement, he had not mentioned that the accused had confessed to the murder of his father.

In the case on hand, the finding of guilt of the appellant is grounded entirely in circumstantial evidence. Before proceeding to analyze and assess the circumstances that have influenced the decisions of the learned Sessions Judge, it would only be appropriate to refer to the precedents that may provide guidance on the handling and evaluation of cases based on circumstantial evidence. In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], a Three-Judge Bench has laid down five golden principles which constitute the “panchsheel” in respect of a case based on circumstantial evidence. Referring to the decision in Shivaji Sahebrao Bobade v. State of Maharashtra [(1973) 2 SCC 793], it was opined that it is a primary principle that the accused “must be” and not merely “may be” guilty before a court can convict and the mental distance between “may be” and “must be” is long and divides vague conjectures from sure conclusions. Thereafter, the Bench proceeded to lay down that the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; that the circumstances should be of a conclusive nature and tendency; that they should exclude every possible hypothesis except the one to be proved; and that there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. The very same principles were reiterated in Padala Veera Reddy V. State of Andhra Pradesh [AIR 1990 SC 79].

In Balwinder Singh v. State of Punjab [1996 SCC (Cri) 59], it was observed as follows in paragraph No. 4 of the judgment:

“4. … the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof.”emphasis supplied)

In State of U.P. v. Ashok Kumar Srivastava [(1992) 2 SCC 86] 7 [AIR 2007 SC 1218], it was held that it is the duty of the court to take care while evaluating circumstantial evidence. If the evidence adduced by the prosecution is reasonably capable of two inferences, the one in favour of the accused must be accepted. That apart, the circumstances relied upon must be established and the cumulative effect of the established facts must lead to a singular hypothesis that the accused is guilty.

In Ram Singh v. Sonia [AIR 2007 SC 1218], while referring to the settled proof pertaining to circumstantial evidence, this Court reiterated the principles about the caution to be kept in mind by the court. It was observed as follows in paragraph No. 39 of the judgment:

“39. … in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts.”( emphasis supplied )

In the light of the principles above, we shall evaluate the circumstances relied on by the learned Sessions Judge to arrive at the finding of guilt.

The first circumstance relied on by the learned Sessions Judge is that the accused had a strong motive to do away with his father. The first informant, who is an immediate neighbour, stated that there used to be constant issues between Muhammed and his family members when Muhammed expressed his desire to marry. PW6, in her evidence, had stated that Muhammed had proposed to marry her about 2 years prior to the day on which he was murdered.

PW2, the brother-in-law of the deceased, had also stated that all the children as well as his wife opposed the decision of Muhammed. PWs 20, 21, and 22, the daughter-in-law, the wife and the daughter, had stated about their strong opposition to the decision of Muhammed to remarry. In view of the above evidence, there was no justification on the part of the learned Sessions Judge in holding that only the accused had a strong motive. Even otherwise, the mere existence of motive by itself is not an incriminating circumstance and it cannot give rise to an inference of guilt nor can it form the basis of conviction, unless either direct or circumstantial evidence is available to prove the guilt.

The second circumstance is on the theory of “last seen”. The last seen theory comes into play when the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that the possibility of any person other than the accused being the author of the crime becomes virtually impossible. (See Mohd. Azad Alias Samin v. State Of West Bengal (2008) 15 SCC 449 and State v. Mahender Singh Dahiya (2011) 3 SCC 109). In the case on hand, none of the witnesses stated that the accused was the person who was last seen with his father. Though PW20 and PW5 stated that in the morning when Muhammed attempted to go out, the accused threatened him with a chopper, this was brought out as an embellishment. None of the witnesses had stated so either in the statement recorded by the police or by the learned Magistrate. None of the witnesses stated that the accused and the deceased were seen together prior to the wife finding him dead at about 5:30 p.m. Therefore, the circumstance that the deceased was last seen in the exclusive company of the accused has not been established beyond reasonable doubt.

The third circumstance is the presence of blood of unknown origin in the banyan of the accused. Ext.P17 is the chemical analysis report issued by the Regional Forensic Science Laboratory and marked through PW24, the Circle Inspector of Police, Tanur Police Station. Item No. 10 in Ext.P17 is a full sleeve shirt, Item No. 11 is the Jeans and Item No. 12 is an old white coloured sleeveless banyan, which were seized by the arresting officer when the accused was arrested at 7:00 p.m. on 06.09.2014. According to the prosecution, the accused was wearing the same clothes that he had worn at the time of the commission of the offence on 04.09.2014. Ext.P17 report would reveal that blood was not detected on item Nos.10, 11 and 13. Insofar as item No. 12 is concerned, it contained blood which was found to be insufficient for determining the origin and group. Going by Ext.P3 postmortem certificate, multiple incised wounds were inflicted on the neck and surrounding areas of the deceased. If such injuries were inflicted and the accused was in close quarters, necessarily, there would have been the presence of blood on his shirt. Furthermore, it is difficult to believe that there is total absence of blood in the outerwear, i.e., the shirt, but there was presence of blood in the innerwear. Furthermore, we find that the prosecution has not tested the blood of the accused so as to rule out the possibility of the blood found in the banyan being that of the accused himself. In view of the above discussion, we are of the view that the mere presence of blood of unknown origin on the banyan cannot be considered as an incriminating circumstance linking the accused with the crime.

The next circumstance relied on by the learned Sessions Judge is the extrajudicial confession by the accused to PW7 (Abdul Samad), his friend. It has to be immediately noticed that the fact that the accused had confessed to the murder of his father to the witness was stated only when he tendered evidence in court. The cross-examining counsel had brought out that the witness had not stated the above incriminating fact when he was questioned by the police. This omission cannot be categorised as a minor omission. As per the Explanation to Section 162(2) of the Code of Criminal Procedure, an omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs. Whether any omission amounts to a contradiction in the particular context shall be a question of fact. In the case on hand, the failure of the witness to speak about the confession to the police in his earlier statement is a significant omission. No reliance can be placed on the said evidence to hold that the accused had in fact made a confession to his friend. Even otherwise, it is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the court, upon the appreciation of the entire prosecution evidence, intends to base conviction on an extra-judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If however, the extra-judicial confession suffers material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration. In the facts and circumstances, we are not inclined to place any reliance on the alleged extra-judicial confession of the accused to PW7.

The last circumstance is the alleged abscondance of the appellant from his home. On an exhaustive evaluation of the evidence tendered by the witnesses and the investigating officer, we find that none of the witnesses had stated that the accused had absconded. All that has come out from the evidence is that the accused was arrested on 6.09.2014, while he was boarding a bus at Parappanangadi Junction about 1 km away from the Parappanangadi Police Station, where the crime was registered. From the FIR, it is evident that the place of occurrence is situated about 1 km away from the Police Station. If that be the case, the accused was very much available in the very same vicinity and it was without any evidence that the learned Sessions Judge had held that the accused had absconded to evade the arrest.

Conclusion:

In view of the foregoing discussion, we are satisfied that the prosecution has failed to prove the chain of circumstances, which can be considered as complete, cogent and coherent. An inference of guilt of the accused can be arrived only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused. The circumstances from which an inference of guilt of the accused is drawn have to be proved beyond a reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In the case on hand, it cannot be said that the chain of circumstances is so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused. It cannot be said that in all human probability, the act must have been done by the accused and him alone. We cannot allow suspicion to take the place of legal proof.

In the result, this appeal will stand allowed. The finding of guilt, conviction and sentence passed against the appellant in S.C.No. 71 of 2015 on the files of II Additional Sessions Judge, Manjeri, will stand set aside and the appellant/accused is acquitted of all charges. The appellant/accused be set at liberty forthwith if his continued incarceration is not required in connection with any other case.