Sivan vs State of Kerala

J.B. Koshy, J.—Appellant/accused was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000 for offence punishable u/s 302 of the Indian Penal Code. He was also sentenced to undergo rigorous imprisonment for two years u/s 201 of the Indian Penal Code. Appeal was filed from that judgment and since he was unable to appoint an advocate of his choice, Court appointed a legal aid counsel at state expense. Allegation against him was that he killed one Sosi, an unmarried man aged 45 years, as he was suspected to have illicit relationship with wife of the accused. It is the case of the prosecution that on 2-6-1998 night the accused purchased and supplied liquor to the victim from the house of P.W. 2 and subsequently they both together left that place. At 11 p.m. in the night, in the Sholayur-Chavadiyur Panchayath road, the accused inflicted fatal injuries on the head and other parts of Sosi by using stones and intentionally caused his death. After committing murder, the accused dragged the dead body of Sosi at a distance of one kilometre and partially buried the dead body in a pit in the bushy area of the property of one Muthu-Mudaliyar (not examined). The accused also set fire to the bloodstained clothes of the deceased so as to destroy the evidence and thus the accused caused disappearance of evidence.

There is no eye-witness in this case and prosecution relied on circumstantial evidence. It is settled principle of law that the circumstances relied upon by the prosecution must be fully established, and the chain of evidence furnished by those circumstances should be fully complete so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence not only various links of evidence should clearly establish guilt of the accused, but also it must be such as to rule out a reasonable likelihood of the innocence of the accused. The Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, described five principles for convicting an accused on the basis of circumstantial evidence which are as follows:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established, as distinguished from ''may be'' 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;

(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.

It is well-settled principle that unlike direct evidence, indirect circumstances which throw light, should lead from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction. Trial Court relied on four circumstances:

(1) Motive;

(2) Last seen together;

(3) Recovery of material objects at the instance of the accused; and

(4) Statement of the accused before the doctor.

Since conviction is based on circumstantial evidence, we are considering the evidence adduced by the witnesses to find out whether the above circumstances were proved and proved circumstances would lead only to the hypothesis that accused is guilty and nobody else.

P.W. 11 gave the First Information Statement. On 3-6-1998 morning, blood was found in the panchayath road by P.W. 11, he, P.W. 1 and Ors. on further search saw the dead body in the pit. The dead body was found buried partially in the pit with the head downwards. On the basis of the information (Ext.P-9) furnished by P.W. 11, F.I.R was registered and thereafter on 5-6-1998 report was filed making accusation against the accused. P.W. 5 Assistant Professor of Forensic Medicine, Medical College, Thrissur conducted autopsy and issued Ext.P-4 post-mortem certificate. The ante-mortem injuries noted are as follows:

B. Injuries (Ante-mortem)

Abraded contusion 10 x 6cm x muscle deep over the front of forehead and right temple.

Lacerated wound 3.5 x 1 cm x muscle deep, vertical over the left side of front of head; its front end 6 cm above eyebrow and 4cm outer to midline.

Two skin deep superficial lacerated wounds 2 x 0.6 and 2.4 x 0.5 cm placed over the left side of head obliquely and separated by a distance of 1cm and 6.7cm above the tragus of ear in the 11 O'' clock position.

Superficial lacerated wound 1.2 x 0.4cm over the left side of forehead 1.2cm outer to injury number (3).

Lacerated wound 4.5 x 2.2cm horizontal bone deep over the left eyebrow and parallel to it with fracture of supercilliary ridge.

Lacerated wound 5 x 0.7 x bone deep over the right malar eminence with bruising 6 x 4 x 1cm around.

Fracture fragmentation of nasal bones.

Lacerated wound 1.5 x 0.8 x bone deep over the right malar eminence with bruising 6 x 4 x 1cm around.

Lacerated wound 3 x 2.7 x 0.5cm over the mucosal aspect of upper lip corresponding to left lateral incisor and canine and the latter was missing with its socket filled with clotted blood.

Lacerated wound 7 x 3 x 0.1cm involving the whole lower lip. The mandible was found fractured in between the central incisors of both sides vertically.

Lacerated wound 4.5 x 2cm horizontal over the under surface of chin with fracture fragmentation of mandible. Beneath injuiy numbers (1) to (8) frontal bone and anterior cranial fossa were fractured and fragmented. The dura was intact. The brain showed thick film of subarachanoid bleeding and the brain showed signs of raised intracranial tension as flattening of gyrl and obliteration of sulci.

Fracture fragmentation of manubrium sterni, fracture of sternum at the level of II costal cartilage horizontal and fracture of I to IX ribs close to sternal attachments. Chest cavity did not contain any fluid blood. The pericardial sac was lacerated and the pericardial cavity contained 100 ml of fluid blood. No injury to heart.

Post-mortem certificate shows that stomach contained altered blood mixed with unidentifiable material with a spirituous smell. Apart from that, there was no evidence in the post-mortem report that the deceased had consumed alcohol immediately before the death.

P.W. 1 stated that he and P.W. 11 while going through Sholayur-Chavadiyur Panchayat Road, found out bloodstains and on searching, the dead body was found at a distance of half a kilometre away from the panchayat road. M.O.1 belt, M.O.2 series chappals and M.O.3 stone were also found from the scene of occurrence. According to P.W. 1, accused has once told him that the deceased had illicit relationship with his wife. This is the motive attributed to the accused for committing the murder. There is no other evidence to support the motive. Alleged motive is not proved and even if it is proved, mere existence of motive is not enough for convicting a person. At the most it may be one of the links in the chain of circumstantial evidence. He also deposed that an empty brandy bottle, a cigarette packet, two chappals (M.O.2) and a green belt (M.O.1) were seen in the place of occurrence. A big stone (M.0.3) was there in the canal. In cross-examination he stated that usually two persons are required for lifting M.O.3 stone. (M.O.3 . He also stated that he has not noted any special identification mark in the stone.

P.W.2 was selling illicit arrack. He deposed that the deceased and accused came together to his house for drinking arrack and have consumed liquor. They left together by 8.30 p.m. He further deposed that he was an accused in a crime for assaulting father of the accused and that enmity continues. The suggestion in the cross-examination was that the accused gave information regarding the illicit liquor and, therefore, there was a raid in the house of P.W.2 and he was inimical towards the accused. In any event, at the maximum, evidence of P.W.2 will show that the accused and deceased came to his house for drinking arrack and left the place at 8.30 p.m. It is not stated by P.W.2 that they were talking in inimical terms. They came together and drank liquor and later left. It is submitted by the counsel for the accused that a person who is doing sale of illicit liquor is telling lies to help the police. In any event, admittedly he is inimical towards the accused. Even if he is believed, it is very difficult to state that on the basis that they were seen up to 8.30 p.m. alone conviction can be entered on the accused on the facts of the case. The exact time of death is not ascertained. The last seen theory comes into play where the time gap between the possibility of time when the accused and deceased were seen together alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime became impossible. Here, such a possibility is not established. See para 12 of State of P.P. v. Satish AIR 2005 S.C.W. 905. The mere feet that the accused and the deceased were seen together prior to the occurrence does not by itself lead to the irresistible conclusion that the accused must have murdered the deceased as held by the Apex Court in Lakhanpal v. State of M.P. AIR 1979 S.C. 1620. P.W.2 is also an attestor to Exts.P-1 and P-2 mahazars whereby the shirt of the accused and the ashes stated to have been obtained by burning the clothes of the deceased were seized. Even though he admitted signature in Exts.P-1 and P-2, he stated that he has not seen the shirt (M.O.6) or ashes (M.O.7) and he has not seen the recovery of the same by the accused. He was not declared hostile. Therefore, the unchallenged evidence of prosecution witnesses was that shirt was not recovered as per the Mahazar. He also stated that he has signed many papers when the R.D.O. visited the place as well as when he was taken to the police station. Apart from that, there is no authorship of concealment. Even though there was bloodstains in the shirt, no human blood was detected from the dress recovered. Therefore, recovery of M.O.6 and M.O.7 are not admissible u/s 27 of the Evidence Act.

According to P.W. 3, M.O.1 belt belongs to the accused. But, he stated that he has not noticed any special identification marks on the belt. He also identified M.O.2 series chappals as that of the deceased. Merely because P.W. 1 stated that he was informed earlier by the deceased (date and time not mentioned) that the accused suspected illicit relationship between his wife and deceased, it cannot be stated that the accused is guilty and accused alone is guilty because motive is proved. It is true that motive is an important factor when prosecution relied on circumstantial evidence. But, if motive is put forward as a major circumstance, it must be fully established like any other circumstantial evidence as held by the Apex Court in Ram Gopal Vs. State of Maharashtra, . If the above evidence is correct, at the maximum it can be said that there is motive. But, mere establishment of motive is not sufficient to connect a person to a crime. Proof of motive is not necessary to satisfy a conviction when Court is satisfied about accused being assailant of victim as held by the Apex Court in Narayan Nathu Naik Vs. The State of Maharashtra, . Even in cases based on circumstantial evidence, failure to prove motive by itself is not fatal to the prosecution when there are otherwise possible circumstances which conclusively establish the guilt However, if motive is proved, that itself supply a chain of link, but, absence of the above is not a ground to reject the entire prosecution case as held by the Supreme Court in State of Gujarat Vs. Anirudh singhh and another, . But, motive cannot by itself sustain a criminal charge although proof of motive may add credence to other evidence adduced in the case. As held by the Apex Court in State of Madhya Pradesh and Others Vs. Paltan Mallah and Others etc., motive by itself is not sufficient to prove the guilt. Here, alleged motive was not proved. We have already seen that recovery cannot be believed and the alleged recovery of M.O.6 shirt or M.O.7 series of ashes will not connect accused with the crime. Prosecution was also not able to prove that deceased was seen alive last with the accused within a proximal time by a credible witness.

The only other evidence relied on by the prosecution is Ext.P-5 certificate issued by P.W.6 doctor after examining the accused when he was in police custody. When police produced the accused before P.W.6 doctor, it is recorded that the injury was caused due to the assault made by Sosy, the deceased at 11.p.m. on 6-2-1998. According to prosecution, that evidence alone prove the case of the prosecution and accused cannot deny his presence at the time of incident and during the scuffle accused got injury due to assault by the deceased. But, the doctor was not able to see any injury on the accused. It is true that such statements though made in police custody to the doctor, even if incriminating, not being a confession, is not excluded by Section 26 of the Evidence Act Kanda Padayachi alias Kandaswamy Vs. State of Tamil Nadu, . But, it is very difficult to believe that he went voluntarily to the doctor to make such a statement, as he has not sustained any injuries. It is only an artificial evidence created by the prosecution for the purpose of the case. In Ext.P-5, it is not stated that the alleged history and cause of injury were given by the accused himself or by the police who brought him to the doctor. Prosecution story as such becomes more difficult to believe because, M.O.3 alleged to be used to commit the crime is so big that according to prosecution witness itself, ordinarily it cannot be lifted by one person alone. Even though the doctor who conducted post-mortem stated that death was caused either of all the injuries, it is not stated that in the ordinary course it would cause death. Nature of injuries also suggest a death after fight. Bloodstains were found in Sholayar road. Dead body was found at a distance of half a kilometre. There is no evidence of dragging of a dead body to all those distance that too by a single accused. All this creates doubts on the prosecution story. In any event, at the maximum prosecution was able to create a doubt that accused might have been taken part in this murder, but, there is no evidence to prove the guilt of the accused positively.

After considering the totality of oral and documentary evidence, we are of the view that the prosecution failed to prove conclusively that accused is guilty and accused alone is guilty and nobody else. In any event, Appellant/accused is entitled to benefit of reasonable doubt. Hence, his conviction kid sentence are set aside. The accused is acquitted. The Appellant/accused should be set free forthwith if he is not required in any other case. The appeal is allowed.