Radhakrishnan vs State Of Kerala

P.G.Ajithkumar, J.

The appellant is the sole accused in S.C.No.195 of 2013 before the III Additional Sessions Judge, Palakkad. He stands convicted and sentenced for the offences punishable under Sections 302 and 201 of the Indian Penal Code, 1860 (IPC). Challenging his conviction and sentence, he has filed this appeal under Section 374(2) of the Code of Criminal Procedure, 1973.

The Circle Inspector of Police, Hemambika Nagar, Palakkad, has filed the final report in Crime No.348 of 2012 of Kongad Police Station alleging commission of the said offences by the appellant. The crime was registered based on the statement given by PW12 on 27.06.2012 that his brother Sri.Joseph @ Jose was found dead and his body was seen mutilated at the paddy field belonging to one Leelamma. PW18 had registered the crime. PW19 had conducted the investigation and submitted the final report.

The allegations set forth by the prosecution against the appellant are the following:

At or about 4.00 a.m. on 27.06.2012 at the courtyard of the house of the appellant bearing door No.3/45 of Keralassery Panchayat, the appellant and the deceased, Sri. Joseph @ Jose indulged into an altercation, following which the appellant struck the deceased using a reaper at his neck. When he fell down, the appellant pressed his neck using that reaper and fisted at his nose and chest. As a consequence Sri.Jose died. The appellant dragged the dead body to the paddy field 100 meters away from the house and chopped the body into two pieces using a chopper. He covered the body by plants and bushes with a view to disappear evidence.

On committal of the case by the Judicial Magistrate of the First Class-II, Palakkad, the Sessions Court took cognizance and made over the case to the Additional Sessions Judge-III for trial. When a charge under Sections 302 and 201 of the IPC was framed and read over, it was denied by the appellant. At the trial, PWs.1 to 19 were examined and Exts.P1 to P22 were marked. MOs.1 to 5 were identified. All the incriminating circumstances appeared in evidence were put to the appellant. He denied all such circumstances and stated that he was innocent. On holding that the appellant was not entitled for an acquittal under Section 232 of the Code, he was asked to enter on his defence. No defence evidence was let in. The Sessions Court held the appellant guilty accepting the case of the prosecution to be true. The appellant calls in question the findings leading to his conviction and the sentence.

Heard the learned counsel appearing for the appellant and the learned Senior Public Prosecutor.

The points arise for consideration are,-

i) Was the death of Sri.Joseph @ Jose a homicide?

ii) Did the appellant intentionally cause the death of Sri.Joseph @ Jose and thereby commit the offence of murder?

iii) Did the appellant cause disappearance of the evidence of the murder?

Point No. (i)

The dead body of Sri.Joseph @ Jose was first seen by PW7, Sri.Balakrishnan at about 7.00 a.m. on 27.06.2012 when he went to the field where he planted ginger. The field belongs to his sister, Leelamma. At the paddy field, he saw two legs among the marshy vegetation there. He realised that the legs were cut off and the trunk was lying some distance away. He could identify the deceased as Sri.Jose and he informed the matter to one Sri.Sreenivasan. Knowing the incident people started thronging in and someone informed the matter to PW12, the brother of the deceased, and also to the police. On the basis of the statement of PW12, Ext.P9 a crime was registered. Ext.P11 is the FIR in crime No.348 of 2012 registered by PW18.

The body of Sri.Jose was immediately removed to the Medical College Hospital, Thrissur. An autopsy on his body was conducted by PW1, Dr.Rajendraprasad, who was an Assistant Surgeon and Deputy Police Surgeon. After the autopsy, he issued Ext.P1 certificate in which both antemortem and postmortem injuries are noted. Ante mortem injuries alone are relevant for the purpose of deciding this point, which are the following:-

Multiple obliquely placed abraded confusions, entering into the depth of the underlying muscles, over an area 22x5-6cm extending from the left side of front of neck 5cm below the left angle of jaw and 7cm away from the midline front, to the front of right shoulder 2cm above the anterior axillary fold. Flap dissection of the neck was done under bloodless field. All the underlying neck muscles were contused. The thyroid cartilage, thyroid gland, cricoid cartilage and the upper tracheal ring showed multiple fractures. The hyoid bone, carotid artery, jugular vein and vagus nerve were intact.

Abraded muscle deep contusion of the following dimensions were noted:- multiple spotted ones over the forehead, face, nose, mucosal aspect of the upper and lower lips; 5x1.5cm transverse over the front of left side of chest 2cm below the nipple; 1x1cm and 2x2cm over the back of right forearm - 7cm and 10cm respectively above the wrist, 2x2cm over the right anterior superior iliac spine; 4x1.5cm transverse over the outer aspect of left hip; another one of the same dimension 6cm above the previous one; 2x2cm over the right shin-17cm below knee.

Lacerated wound 3x0.5cm, bone deep, transverse, over the left side of chin. All the above-mentioned injuries were fresh.

PW1 opined that Sri. Jose died due to the asphyxial effects of the compressive crush injuries. PW1 answered that injury No.1, which was the reason for asphyxia, could not be inflicted using a chopper, which is marked as MO4. He, however, stated that such an injury is possible with a wooden reaper. The allegation of the prosecution is that injury at the neck of the deceased was inflicted using MO1 reaper. The fact that the dead body of Sri.Jose was found in the paddy field in a mutilated state is not under challenge. The evidence of PW1, which is corroborated by Ext.P1 does not suffer from any infirmity. The only possible conclusion from the above evidence is that Sri. Jose died of injury No.1, which undoubtedly was inflicted by another person/s. We, therefore, find that the death of Sri.Joseph @ Jose is a homicide.

Point No. (ii) and (iii)

The appellant was residing in house bearing No.3/45 of Keralassery Grama Panchayat. Ext.P2 is a certificate issued by PW2, Secretary of Keralassery Panchayat to the effect that the said building was assessed in the name of Smt.Vellachi, w/o Kolavan. It is stated by PWs.8 and 10 that the appellant was residing in that house. That fact is not in dispute. The prosecution rests on the circumstantial evidence to establish that it was the appellant, who caused the death of Sri.Jose at the said house. From the evidence brought on record, the circumstances attempted to be established to prove the guilt can be summarized as follows:-

i) The deceased and the appellant were last seen together in the evening of 26.06.2012;

ii) Blood stains were found at the house of the appellant;

iii) The dead body of the deceased was found in a mutilated state at the field about 100 metres away from the house of the appellant on the next morning;

iv) There were indications of dragging the dead body of Sri.Jose from the house of the appellant to the place where the body was found;

v) MO4 chopper and MO5 dhoti were recovered on the basis of the information received from the appellant, which is relevant under Section 27 of the Indian Evidence Act; and

vi) Blood of Sri. Jose was detected on MO1 reaper, MO4 chopper and MO5 dhoti.

The prosecution has adduced evidence to prove each of such circumstances. Let us consider first whether such circumstances are proved, and then consider whether such circumstances  constitute  a  complete  chain  leading  to  an unmistakable conclusion that the appellant is the culprit.

PWs.7, 8, 10 and 11 are the witnesses examined by the prosecution to prove that the appellant and the deceased were seen together between 6.00 p.m. and 7.00 p.m. on 26.06.2012. PW7 Balakrishnan deposed that at about 6.30 p.m. on the 26th (he did not state the month and year) saw the appellant and the deceased together on the rock some distance away from the house of the appellant. The said property belonged to Smt. Leelamma, who is his sister. PW8 is an autorickshaw driver. He stated that he while driving his autorickshaw at 6.30 p.m. on 26.06.2012 saw both the appellant and the accused coming from near the rock. After a short while, he came back and at that time he saw both of them in front of the house of the appellant. PW10 deposed that at or about 6.00 p.m. on 26th (month and year are not stated) while he was driving his autorickshaw, saw both the appellant and the deceased on the rock and when he came back at about 7.00 p.m. saw both of them in front of the house of the appellant. Similarly, PW11 Rajesh, who is a neighbor of the appellant saw him in the company of the deceased on the rock at about 6.30 p.m. on 26.06.2012. At that time, both of them were coming from near the rock towards the road. He further stated that at about 7.00 p.m. he saw the appellant clearing garden plants and vegetation in front of his house. The deceased was also there in front of the house at that time. These witnesses were cross-examined, but nothing to discredit their credibility has come out. Only inconsistency brought out is that PW8 denied having informed the brother of Sri. Jose about detection of the dead body, which goes contrary to the statement he has given in police. In the light of the cogent and consistent evidence tendered by PWs.7, 8, 10 and 11, the said inconsistency cannot have the effect of discrediting his veracity or discarding the evidence of other witnesses in that regard. Therefore, we find that the prosecution has succeeded in proving that the deceased and the appellant were seen together between 6.00 p.m. and 7.00 p.m. on 26.06.2012.

As stated above, it was PW7, Balakrishnan, who saw the dead body first at 7.00 a.m. on 27.6.2012 on the field. The field was about 50 metres away from his house. PW7 going there on that morning is quite natural; since it was the field where he had cultivated ginger. He went there to see how the ginger plants were. He noticed two legs first and on his curious search, which certainly is a natural human instinct, saw the trunk of the dead body, which he identified as that of Sri. Jose. PW7 knew Jose earlier. Knowing this fact, PWs.8, 10 and 11 among other local people reached there. All of them stated that the body of Sri.Jose was in a mutilated state. The case of the prosecution is that after the murder, the appellant dragged the body from his house to the field, where the body was found mutilated and left covered with bushes. Knowing the incident, police personnel also came there. They removed the body to the hospital. The version of these witnesses regarding finding of the dead body at the field belonging to Smt.Leelamma is convincing.

PW7 stated that there were indications of dragging the body along the side of the road. It is his version that he noticed blood stains along the roadside and grass there. PW19, the investigating officer, inspected the house of the deceased and also the place where the body was found. He had prepared Ext.P7 scene mahazar relating to the house and the road. He also prepared Ext.P8 mahazar, which is with regard to the place where the body was found. PW8 is an attestor to Ext.P7 and PW9 is an attestor to Ext.P8. Both of them deposed that they saw the police inspecting the respective places and preparing mahazar. In Ext.P7 the indications of dragging the dead body are described. PW19 arrived at such an inference since he noticed blood stains on the leaned grass and vegetation in a linear direction. From the said evidence, it can certainly have such an inference. But, whether the stains seen on the grass and other plants were human blood having origin from the body of the deceased was not ascertained. No report in order to ascertain that the stains found on the grass and leaves have origin from the body of the deceased was obtained. That leaves us in a reasonable doubt about the case of the prosecution that the above are the result of dragging the body of Sri. Jose.

The prosecution places reliance on the evidence of PWs.4, 5 and 19 together with Ext.P4 report of chemical analysis to prove that human blood was found in the house of the appellant. PW19 inspected that house at 11.00 a.m. on 27.06.2012. PW4, a Scientific Assistant from the Police Academy, Thrissur was also present at that time. PW4 collected samples from the house, which include cotton swabs on red stains found at the front side of the house. Those swabs and other articles were seized as per Ext. P5. PW5, a Civil Police Officer on duty has attested Ext.P5.

The appellant on suspicion was detained in the Kunnathunad Police Station. He was arrested by PW18 from there on 28.06.2012 and brought to Kongad Police Station. PW19 deposed that on the basis of the statement given by the appellant while in his custody which is marked as Ext.P15, MO.4 chopper and MO5 saffron coloured dhoti were seized. Ext.P10 is the mahazar prepared by PW19 in that regard. PW13 is a witness in it, who deposed in court subscribing to that fact. MO1 reaper was recovered by PW19 from beneath the cot in the house of the appellant. It was seized under Ext.P7 scene mahazar when the investigating officer inspected that house.

MOs.1, 4 and 5 among other articles including the cotton swab collected by PW4 from the house of the appellant, were sent for scientific examination as per Ext.P21 forwarding note submitted by PW19. Ext.P4 is the report. PW4 deposed that he had examined the articles and issued Ext.P4. From Ext.P4, it is seen that the cotton swab and MO5 saffron coloured dhoti were stained with human blood; whereas, MO1 reaper and MO4 chopper contained blood, but its origin could not be traced. Therefore, it was not possible to say whether the reaper and the chopper, which were said to have been used by the appellant to commit the crime, were stained with human blood. From that evidence, it is possible to have an inference that the stains found in the house of the appellant was human blood, but its origin cannot be related to the deceased. No attempt to have a D.N.A. profiling to ascertain whether the blood so found was from the body of Sri.Jose was made. Hence, we find that the prosecution failed to prove that blood of Sri. Jose was detected in the house of the appellant, and also on MO1 reaper, MO4 chopper and MO5 dhoti.

The next circumstance projected is that immediately after the incident, the appellant absconded, which is certainly a fact relevant under Section 8 of the Evidence Act. PWs.14, 15, 16 and 17 were examined to prove that fact. PW14 Shaji is a sales man in a toddy shop. He deposed that he knew the appellant earlier and on a day at 6.45 in the morning, the appellant reached his toddy shop and had one litre of toddy and left. He had a packet with him. Although a few questions regarding selling of toddy even before the scheduled time were put to him, nothing to discredit his veracity has come out. PW15 deposed that at 9.15 a.m. on 27th (month and year are not stated) the appellant boarded his autorickshaw from Thakarippuram Stand and travelled to Companypady and from there to Pathiripala. Being an acquaintance, the charges were not soon paid by the appellant and he left assuring to pay the charges in the evening.

PW16 deposed that the appellant is his friend and on a day afternoon the appellant reached his home and they together went to a bar to have drinks. It is his further version that when he along with another friend Babu went inside the bar, the appellant left with his mobile phone, which the appellant obtained on the pretext of making a call using his own SIM. Although enquired, PW16 could not locate the appellant and later on only he knew about involvement of the appellant in this crime from the newspaper. PW17, who is a conductor in Marva Super Bus, deposed that on 27.06.2012 the appellant boarded his bus from Pathiripala at about 7.12 a.m. and travelled in the bus to Thakaripuram, where he alighted. Both PWs.16 and 17 deposed that the appellant had with him a cover. The versions of PWs.14 to 17 do not have any inherent infirmity. They are reliable witnesses. Nothing to doubt their credibility has been brought out in the cross-examination. That evidence would prove that the appellant left his house on the morning of 27.06.2012 and travelled by means of autorickshaw and bus. PW18, the Sub Inspector of Police, Kongad Police Station, stated that on getting information from Kunnathunad Police Station regarding detaining of the appellant, PW18 reached there and took him into custody. From the said evidence, it can be concluded that the accused left his house on the morning following the night during which Sri.Jose was murdered.

From the discussions made above, the circumstances that Sri.Joseph @ Jose was murdered in the night of 26.06.2012, his dead body was found in a mutilated state in a field about 100 metres away from the house of the appellant, the deceased was found along with the appellant between 6.00 p.m. and 7.00 p.m. on the fateful day, blood stains were found at the house of the appellant, and also on MOs.1, 4 and 5, which were in the house of the appellant and the appellant absconded from the place soon after the incident are proved. The question is whether the said proved circumstances will lead to the only conclusion that it was the appellant, who murdered Sri.Jose.

It was held in Malleshappa v. State of Karnataka [(2007) 13 SCC 399] that the circumstance of last seen together does not by itself lead to an irrevocable conclusion that it is the accused who had committed the crime. The prosecution must come out with something more to establish the connectivity between the accused and the crime. If there is no close proximity between the circumstance of last seen together and the approximate time of death, the evidence of last seen becomes weak. Therefore, it is to be considered how far the other circumstances help the prosecution to establish a complete chain establishing the guilt of the accused.

The Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116] held that the following must be fulfilled before the case against an accused can be said to be fully established on circumstantial evidence:

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

(2) 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,

(3) the circumstances should be of a conclusive nature and tendency

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) 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."

A  three-Judge  Bench  of  the  Apex  Court  after referring to the earlier decisions on the point right from Hanumant Govind Nargundkar and another v. State of Madhya Pradesh [AIR 1952 SC 343] held in Munikrishna @ Krishna v. State by Ulsoor PS [2022 SCC OnLine SC 1449] that in a case where circumstantial evidence is relied on, the chain of evidence must be complete and the conclusion which is arrived after examining the chain of evidence must point towards the culpability of the accused and not to any other conclusion. It was also held that in a case of circumstantial evidence, the court has to scrutinize each and every circumstantial possibility, which is placed before it in the form of evidence and the evidence must point towards only one conclusion, which is the guilt of the accused. Therefore, the evidence on record should prove beyond doubt that the proven circumstances lead to the only inference that the appellant had committed the offence.

As pointed out above, the prosecution could not prove that the stains found in the house of the appellant was blood having origin from the body of the deceased. Similarly, the stains found on MO1 reaper and MO4 chopper are not proved to be the blood of the deceased. The stains on Mos.1 and 4 are not even proved to be human blood. The stains found on the leaves and grass on the roadside also are not proved to be the blood of the deceased. Therefore, the said circumstances are not confirmative and cannot be used to prove the guilt of the accused. Can then, the remaining circumstances would constitute a complete chain establishing the guilt of the accused.

The remaining proven circumstances, namely, the deceased and the appellant were last seen together on the evening of 26.06.2012, the appellant absconded from his house on the next morning, blood stains were found at the house of the appellant and the dead body of the deceased was found in a mutilated state at the field about 100 metres away from the house of the appellant create a strong presumption that the appellant would have caused the death of Sri.Joseph @ Jose. But a presumption, howsoever strong it be, cannot take the place of proof.

It may be noted that there is absolutely no evidence to prove the motive for the appellant to commit such a murder. After the death, the body of Sri.Jose was chopped into two separating lower limbs from the trunk. Considering the horrifying nature of the acts, it cannot be inferred that a sudden quarrel picked up between the deceased and the appellant would have led to such a murder and mutilation of the body. The prosecution failed to bring on record any evidence regarding the motive. It is true that if there is other evidence to establish commission of the crime, even if it is based on circumstantial evidence, proof regarding motive may not be that important. But in this case, the proven circumstances are insufficient to establish beyond doubt that the appellant had committed the crime. It is not able to rule out the possibility that someone else caused the death of Sri.Jose. In that view of the matter, lack of proof about the motive becomes fatal to the prosecution. We are therefore of the view that the evidence let in the prosecution is insufficient to prove beyond doubt the charge levelled against the appellant. The judgment of conviction and order of sentence rendered by the Sessions Court are liable to be set aside.

In the result, the appeal is allowed. The appellant is acquitted of the offences with which he is charged. He will be released from custody where he is imprisoned; provided his custody is not required in connection with any other case.

The Registry shall forthwith send a copy of this judgment to the Superintendent of the Jail where the appellant is imprisoned.