T. Raja vs State of Kerala

Bhavadasan, J.—The accused in this case was prosecuted for the offences punishable u/s 302 and Section 397 IPC. He was found guilty and was accordingly convicted for both the offences and was sentenced to suffer imprisonment for life for the offence punishable u/s 302 IPC and to pay a fine of Rs. 5,000/- (Rupees Five Thousand only) on default of payment of which, he had to undergo rigorous imprisonment for a further period of one year. So far as the offence u/s 397 IPC is concerned, he was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/- on default of payment of which, he had to suffer simple imprisonment for one year. It was directed that the substantive sentences of imprisonment shall run concurrently. The case of the prosecution, in short, is as follows:

The deceased namely, Selvarani was staying with PW4. They were leading a family life, though not married. They had been residing so, for about three years prior to the incident. Both of them had children in their earlier marriage. On 07.10.2000, as usual, PW4 went for work. Selvarani, the victim was at home at that time. When PW4 returned by about 7 pm. after the work, he found the door of the house locked. Contrary to the usual practice, he came to know that Selvarani had not entrusted the key to the neighbour. He went in search of the victim and came to know that by about 4 pm. on that day, she was seen going to the market with an umbrella. Inspite of best efforts made by him, he was unable to locate his companion. It is alleged that at the time when she had gone out of the house, she was wearing gold ornaments.

PW4, on 8.10.2000, made a complaint before the Edavanna Police Station about the missing of Selvarani. Ext. P6 is the said F.I. Statement. Based on Ext. P6, which was recorded by PW16, Ext. P12 F.I.R. was registered. PW16 started investigation and on 09.10.2000, the body of Selvarani was found in Chaliyar River. He conducted inquest over the body and submitted Ext. P11 report. He recovered MOs 7 and 8 found on the body of the deceased and sent the body for postmortem. PW11, the Assistant Professor in Forensic Department, Medical College Hospital, Kozhikode conducted autopsy and prepared Ext. P8 postmortem report. The subsequent investigation was done by PW18 Dy. S.P. of Police. He would state that during the investigation, he came to know that the accused had a role in the missing of Selvarani and accordingly, he arrested him on 10.10.2000. Based on Ext. P17(a) confession statement, stated to have been given by the accused, MOs 2 to 5 were recovered as per Ext. P3 mahazar. Based on Ext. P17(b) confession statement, MO1 chappals were recovered as per Ext. P1 mahazar. He prepared Ext. P2 scene mahazar and recorded the statements of witnesses. He filed Ext. P18 report before the court, seeking to have Section 302 and 397 incorporated in the F.I.R. He obtained a site plan prepared by the Village Officer. Further investigation was conducted by the successor-in-office to PW18. He, after verification of the records, laid charge before the court.

The Judicial First Class Magistrate, Manjeri, before whom the final report was laid, took cognizance of the offence. On appearance of the accused before the said court, all legal formalities were complied with. The learned Magistrate found that the offences are exclusively triable by a court of sessions and accordingly, committed the case to the Sessions Court, Manjeri, as per Section 209 Cr.P.C. The Sessions Court made over the case to the Additional Sessions Fast Track Court No. 1(Ad hoc), Manjeri for trial and disposal.

The court below found that the accused was unable to engage a lawyer and therefore, the court appointed a State Brief to appear on behalf of the accused. After hearing both sides, the court framed charges for the offences punishable u/s 302 and 397 IPC. To the charges, the accused pleaded not guilty and claimed to be tried. The Prosecution, therefore, examined PW1 to PW18 and had Exts.P1 to P19 marked. MO1 to MO19 were identified and marked. After the close of the prosecution evidence, the accused was questioned u/s 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him. The accused maintained that he is innocent. According to him, he has been falsely implicated in the case. Presumably finding that he could not be acquitted u/s 232 Cr.P.C., he was asked to enter on his defence.

The accused chose to adduce no evidence, but he had already got Exts.D1 to D4 marked. On a consideration of the materials before it, the court below came to the conclusion that the Prosecution had succeeded in establishing the case against the accused. The conviction and sentence already mentioned, followed. The said conviction and sentence are assailed in this appeal.

That Selvarani is no more, is a question that is not in dispute. She was staying with PW4, at the relevant time. The Prosecution case, in brief is that she was done away by the accused. To be more precise, after depriving her of her ornaments, she was pushed into the river by the accused. She died of drowning.

The court below found that the evidence of PW3, PW5, PW6, PW7, PW8 etc., taken along with the recovery of MO1 to MO4, based on the alleged confession statement stated to have been given by the accused are sufficient enough to fasten the liability on the accused.

The State Brief appearing for the appellant before this Court, pointed out that the court below was not justified in blindly accepting the evidence of recovery against the accused. Though a few witnesses said that they had occasion to see the accused and the victim together for some time, on 7.10.2000, the same is not a ground to come to a conclusion that the accused was responsible for causing the death of the victim. The Prosecution has miserably failed to show that there was any attempt from the part of the accused to forcibly remove her ornaments. There were no injuries found on the body of the victim and the postmortem certificate showed that she died of drowning. The court below was not justified in invoking the "last seen" theory in this case. It is also submitted that on a close scrutiny of the evidence, it can be seen that Ext. P6 cannot be the F.I. statement. Long before the preparation of Ext. P6, it is clear from the evidence that the police were given detailed information about the incident. The evidence of PW5 would clearly show that the police had information about the missing of Selvarani, in the night of 7.10.2000. It is very clear, according to the learned Counsel that the F.I. statement had been drawn up to suit the convenience of the prosecution. The learned Counsel pointed out that the evidence available on records is totally insufficient to warrant a conviction.

Per contra, the learned Public Prosecutor contended that the court below has been careful enough to take into consideration all items of evidence available before it. The Court below could not have omitted to take note of the recoveries made on the basis of the confession statement stated to have been made by the accused, which were clinching items of evidence. There is also ample evidence to show that in the evening of 7.10.2000, the victim was seen in the company of the accused and if that be so, it is for him to explain, what had happened to the victim, thereafter. It is also clear from the evidence that the victim and the accused had taken fancy for each other. Summing up, the learned Public Prosecutor pointed out that no grounds are made out to interfere with the judgment under appeal.

Before going into the evidence in this case, it may be noticed that the Prosecution relies on circumstantial evidence, to prove the case against the accused. There are several decisions of the Apex Court regarding the principles to be applied in cases, built under circumstantial evidence. It is unnecessary to refer to all of them. After referring to a number of decisions, the Apex Court, in State of Goa Vs. Pandurang Mohite, held as follows:

A reference may be made to a later decision in Sharad Birdhichand Sarda Vs. State of Maharashtra, . Therein, while dealing with circumstantial evidence, it has been held that onus as on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must'' or ''should'' and not ''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 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 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.

PW1 and PW2 are witnesses to the recovery of MO1 and MO2 to 4 respectively. Their evidence shall be dealt with in detail, a little later.

PW3 would say that the victim was staying along with PW4 and that the victim used to wear gold ornaments. She identified MO2 to MO5 as the ornaments belonging to Selvarani. PW5 says that he resides in the same quarters occupied by PW4 and the victim. Selvarani, the victim was found missing on 7.10.2000. He would depose that on that day, he returned after work and went to sleep. He was woken up by PW4, who told her that Selvarani was missing and also that he had suspicion about a person. This witness claims to have asked the accused as to where Selvarani was. It is alleged that the accused replied that she had alighted a bus to Vazhikkadavu. According to PW5, when he further asked the accused, the accused told him that he had gone to Nilambur along with Selvarani to see a movie. Since they did not get tickets for the movie, they returned by bus and got down at Kurisinpadi. They went to a nearby river to wash their face. This witness says that the accused told him that Selvarani slipped into water and he could not save her, inspite of his best efforts. This witness would also say that at that time, the accused was seen, wearing wet clothes. PW6 claims to have seen the victim at about 3 pm on the date of the incident. He claims to have asked Selvarani, where she was going and she replied that she was going to make a telephone call. He also says that he saw the accused following Selvarani.

PW7 is another witness, who claims to have seen the accused in the company of the victim at about 5.10 pm on 7.10.2000. He also claimed that the accused was accompanying her at the relevant time. PW8 claims to have seen the accused and the victim together at about 4.15 pm. He says that on several occasions, he has noticed the victim, wearing a gold chain and ear studs. PW10 is the person, to whom Selvarani was actually married to. His evidence would show that leaving him and the children, Selvarani went with PW4. He is the person, who received the dead body of Selvarani.

PW14 is an important witness. He says that he, PW3 and the accused, stayed together. Selvarani and PW4 were staying in the ground floor. He claimed that he and the accused go together for work. On the date, on which Selvarani was found missing, this witness would say that the accused had not come for work. He had gone with PW14 in the morning, but after reaching the place of work, the Supervisor instructed the accused to go elsewhere for work. He claims that on 7.10.2000, when he and others returned after work, they were told that Selvarani was missing. When they had gone in search of her, all those witnesses would say that they were given to understand that she was seen going with an umbrella at about 4 pm. Later, they met another person, who deposed that he had seen Selvarani and she told him that she was going to make a telephone call. This witness claims that PW7 told them that he had occasion to see the victim and the accused together at about 5 pm., near a theatre at Nilambur. PW14 asserted that he, along with PW4 and another person, went to Nilambur. They returned at 9 pm. unable to locate the lady. They opened the door and searched the room. Everything was in place, but Selvarani was missing. According to this witness, they found the accused standing near the bathroom. He asked the accused whether he had occasion to see Selvarani. Initially, though he pretended ignorance, later, he told that she went to her native place by a bus. By that time, a few people gathered there and they began to question the accused. When they found that the accused was unable to answer them, this witness says that they took the accused to the Police Station. PW17, who is a vendor in flowers, would say that Selvarani had bought flowers from him and she was accompanied by the accused.

PW1 claims to have seen the accused handing over MO1 series chapels to the police from a nearby bush. According to the prosecution, the said pair of chapels belonged to Selvarani. PW2 claims to have seen the accused handing over MOs 2 to 5 to the police, by the accused. They are the gold ornaments which were worn by the victim. PW18 speaks about the confession statement stated to have been given by the accused. But, one cannot omit to note that the postmortem report furnished by PW11 shows that the death was due to drowning. Except for a small contusion on the right side of the chest, no other injuries were noticed on the body of the victim. A scrutiny of the evidence of PWs 6, 7 and 8 would indicate that they have all seen Selvarani, leaving her house between 3.15 and 5.15 pm. One may now refer to the evidence of PW5. He says that while he was asleep in the evening of 7.10.2000, PW3 and 4 approached him and PW4 told him that Selvarani was missing and that he had suspicion about a person with regard to the same. He claims that they asked the accused where Selvarani had gone and he replied that she alighted a bus to go to her native place. One should remember that all these had happened before Ext. P6 F.I. statement was laid.

If one goes by the evidence of PW14, it is very clear that in the night of 7.10.2000 itself, the accused was taken to the Police Station. It is very clear from the evidence of the witnesses that the complaint was laid on the same night itself. The evidence of various witnesses have been referred to in detail earlier. With that in mind, if one looks at Ext. P6, it can be seen that the same could not have been the F.I. statement as claimed by the prosecution. Ext. P6 contains none of the details spoken to, by the various witnesses and it merely mentions that Selvarani was found missing. Of course, it was mentioned that she was wearing gold ornaments.

There is absolutely no evidence regarding any attempt by the accused to cause the death of Selvarani. One may recollect that her body was found floating , two days after she was found missing, in the Chaliyar river. Medical opinion is that she died of drowning.

Except for a contusion, as already stated, there are no other injuries found on her body. There is absolutely no evidence to show that after 5.15 pm on 7.10.2000, anybody had seen the accused in the company of the victim. There is absolutely no evidence to show that they had gone together near the river.

Under the above circumstances, it is extremely doubtful whether the "last seen" theory can be invoked in the facts and circumstances of this case. The said theory has been explained in several decisions. It is unnecessary to refer to all of them. In the decision reported in Malleshappa Vs. State of Karnataka, , it was held as follows:

In the present case also, there is no proximity of time and place. We have already noted that the dead body, even if it is to be accepted, was that of the deceased Yankanna, had been recovered after 10 days after the date on which the deceased was last seen in the company of the appellant. This singular piece of circumstantial evidence available against the appellant, even if the version of PW10 is to be accepted, is not enough. It is fairly well settled that the circumstantial evidence in order to sustain the conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. It is true as has been held by this Court in Lakshmi and Others Vs. State of U.P., that it is not an inflexible rule that the identification of the body, cause of death and recovery of weapon with which the injury may have been inflicted on the deceased though, are factors to be established by the prosecution but it cannot be held as a general rule and broad proposition of law that where these aspects are not established, it would be fatal to the case of the prosecution and in all eventualities, it ought to result in acquittal of those who may be charged with the offence of murder provided the charges against the accused otherwise can be established on the basis of the other reliable and trustworthy evidence.

There is no reliable and trustworthy evidence in the present case. The High Court in the present case took the view that as to what happened to the deceased- Yankanna was within the knowledge of the appellant and he having failed to explain and mutilated body of Yankanna having been found, having shown that Yankanna had been murdered, the only conclusion one can arrive at, is that the appellant with the help of some others committed the murder of Yankanna, cut off head and some part of the body and threw the body in Ghataprabha river. Too many surmises and conjectures ! it is highly dangerous to convict any accused on the basis of which the High Court has chosen to do so.

In the decision reported in State of Goa v. Pandurang Mohite (supra), it was held as follows:

So far as the last seen aspect is concerned, it is necessary to take note of two decisions of this Court. In State of U.P. Vs. Satish, it was noted as follows:

The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last 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 becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case, there is positive evidence that the deceased and the accused were seen together by witnesses PWs 3 and 5, in addition to the evidence of PW2.

In Ramreddy Rajeshkhanna Reddy and Another Vs. State of Andhra Pradesh, , it was noted as follows;

The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case, the courts should look for some corroboration.

Going by the principles laid down in the above decisions, the "last seen" theory can be invoked only if the time lag between the point of time when the accused and the deceased were last seen alive and the time when the deceased was found dead, is so small that the possibility of any other person than the accused, being the author of the crime, becomes impossible. As noticed earlier, there is absolutely no evidence at all in this case to show as to what has happened after 5 pm on 7.10.2000. It is here that the absence of evidence regarding the time of death of Selvarani assumes significance. Merely because the accused was seen in the company of Selvarani some time before she was found missing, it does not automatically leads to the conclusion that he is the perpetrator of the crime.

One may recall here that the prosecution has a case that the accused wanted to deprive the victim of her ornaments and in that process, the accused caused her death by pushing her into the river. If that be so, there would have been use of force by the accused to remove the ornaments of Selvarani and she would have certainly resisted. There is no evidence at all on any such resistance and it is too much to believe that she would have voluntarily given all her ornaments to the accused. It was suggested at the time of hearing that it can be after the death of Selvarani, that the ornaments could have been removed. The prosecution case is that after having deprived Selvarani of all her ornaments, she was pushed into the river. At the time of evidence, there was shift in the stand. The case was that Selvarani had gone to the river to wash her face and hands. While doing so, Selvarani slipped and fell into the river. If that be so, the ornaments could have been removed only after the victim was dead. It is too much to believe that after Selvarani drowned in the river, the accused brought the body to the bank of the river, removed the ornaments and threw her body back into the river. Then, the recovery of MO1 assumes importance. Even according to the prosecution, that is said to be the chappals worn by Selvarani. It is rather inconceivable that a person, who wanted to cause the death of Selvarani and keep it as a secret, would have retained her chappals as a memento. If he could push Selvarani into the river, he would have easily thrown the chappals as well into the river. The recovery of MO1 slippers, therefore, does not inspire confidence in the mind of this Court.

Ext. P17(a) and (b) are the confession statements, stated to have been furnished by the accused, which led to the recovery of MO1 slippers, MO2 to MO5 gold ornaments and MO9 series dress, which is said to have been worn by the accused. The relevant portion of the confession statement reads as follows:

It must at once be noticed that none of the above statements contains authorship of concealment. PW18 in his evidence also, does not speak about the accused mentioning about authorship of concealment. If the statements given by the accused, which led to the recovery of the material objects, do not contain the authorship of concealment, they cannot fall u/s 27 of the Indian Evidence Act. In this context, it will be useful to refer to the relevant decisions. In the decision reported in George v. State 2005 (3) KLJ 593, a Division Bench of this Court has held as follows:

A reading of the confession alleged to have been made by the appellant shows that he had not stated anything about the concealment of those articles. He only stated that if he was taken to the place, he will show the articles. One of the primary requisites to make recovery in pursuance of the confession made by the accused u/s 27 of the Evidence Act, the authorship of the concealment of articles must be proved. Unless the authorship of concealment is established, the recovery in pursuance of the information stated to have been furnished by the accused will not fall under discovery as envisaged u/s 27 of the Indian Evidence Act.

In Sankara Narayanan Vs. State of Kerala, , a Division Bench of this Court has held as follows:

We would have examined the respective contentions of the learned Counsel based upon the two decisions as mentioned above in greater details, but there may be no necessity to do so as a Division Bench of this Court in George @ Kunju v. State in Cri. Appeal No. 15 of 2003 decided on 8th September, 2005 has dealt with this controversy and observed as follows:

The decision rendered in Suresh''s case (supra) was followed in David Rozario''s case (supra) also. But the decisions in Suresh''s case and David Rozario''s case were rendered by a Bench consisting of two judges. In Jaffer Hussain Dastgir''s case (supra) and Mahabir Biswas'' case (supra) the decisions were rendered by a Bench consisting of three Judges. We respectfully follow the decisions rendered by the Larger Bench and hold that unless the authorship of concealment is established, the recovery in pursuance of the information stated to have been furnished by the accused will not fall under ''discovery'' as envisaged u/s 27 of the Indian Evidence Act.

Before arriving at the conclusion as reproduced above, the Division Bench of this Court relied upon a number of Supreme Court decisions in Jaffar Hussain Dastagir Vs. State of Maharashtra, , Mohmed Inayatullah Vs. The State of Maharashtra, , Bahadul alias Ghanshyam Padhan Vs. State of Orissa, , Pohalya Motya Valvi Vs. State of Maharashtra, , Dudh Nath Pandey Vs. State of Uttar Pradesh, , Fr. George Cherian v. State of Kerala ILR 1989 Ker 95, Mahabir Biswas v. State of W.B. (1995) 2 SCC 250 and Prem Prakash Mundra Vs. State of Rajasthan and Another, . We are in respectful agreement with the view expressed by the Division Bench as quoted above and thus hold that the admissible part of the statement made by A1 pursuant to which the alleged crime gun was recovered, only proves that he knew that the gun was recovered only proves that he knew that the gun was concerned from where it was taken at his instance, but on such knowledge, no interference of committing the murder can be drawn. One of the primary requisites to make a recovery u/s 27 of the Evidence Act is that the authorship of concealment of articles must be proved.

Going by the principles laid down in the above decisions, it follows that the statement leading to the recovery of the material objects cannot fall u/s 27 of the Evidence Act. However, as noticed in the decisions reported above, even assuming Section 27 of the Indian Evidence Act cannot be taken aid of, the act of recovery based on the conduct of the accused becomes relevant u/s 8 of the Indian Evidence Act.

The only item of evidence therefore, is the recovery of MO2 to MO5 at the behest of the accused. It has also to be noticed that the recovery of the slippers cannot be accepted. The conduct of the accused which becomes relevant u/s 8 of the Indian Evidence Act, by itself is insufficient to fasten the liability on him. The evidence of PW4 would clearly show that the accused was taken to the police station on 7.10.2000 itself and the police were appraised of the entire facts and circumstances. It is surprising to note that the next day, i.e., on 8.10.2000, when PW4 gave a statement, it is recorded as the first information statement. The assertions of PW16 and PW18 that they had no information about the incident, before Ext. P6 was lodged, cannot be obviously true. This creates considerable doubt regarding the prosecution case. The case of the prosecution that the accused was arrested on 10.10.2009 cannot be readily accepted. One must remember that the body of Selvakumari was found floating in the river on 09.10.2000. The result is that:

The last seen theory cannot be accepted for reasons already mentioned.

The recovery of MO1 slippers is most unconvincing.

There is no evidence at all to show as to how the accused came into the possession of MO2 to MO5.

The ornaments are stated to have been belonging to Selvarani. No injuries were found on the body of the victim, corresponding to any force that would have been exerted by the accused to remove the ornaments. Nobody has a case that the victim voluntarily handed over the ornaments to the accused.

There is absolutely no evidence to show that the death of Selvarani occurred within a short while, after she and the accused were seen together so as to draw the conclusion that no one else could have been intervened and caused the death of Selvarani. Since there is suspicion in the recording of F.I. statement, it is unsafe to rely on the evidence of PW16 and PW18. We are, therefore, unable to accept the findings of the court below that the prosecution has succeeded in establishing the case against the accused. It may be that the prosecution had been able to show that it might have been the accused, who had caused the death of Selvakumari. That is far from saying that he must have done it. Unfortunately for the prosecution, the test is that he must have done it.

In the result, the appeal is allowed. The conviction and the sentence imposed by the court below are set aside. The accused stands acquitted for the offences punishable u/s 302 and 397 IPC. He shall be set at liberty unless his presence is required in any other case. Any payment made by him towards fine, shall be refunded to him.