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2003 DIGILAW 340 (KER)

Arunachalam v. State of Kerala

2003-05-27

K.A.ABDUL GAFOOR, N.KRISHNAN NAIR

body2003
Judgment :- Krishnan Nair, J. This appeal is directed against the order of conviction and sentence passed by the Addl. Sessions Judge, Kozhikode in S.C.No.65/1999. The appellant was charged with the offence punishable under Sections 302 and 201 of the IPC. After the trial the learned Addl. Sessions Judge found the appellant guilty of the offences and convicted him. He was sentenced to undergo imprisonment for life under Sec. 302 IPC. No separate sentence was awarded under Sec. 201 of the IPC. The order of conviction and sentence passed against the appellant is seriously challenged in this appeal. 2. The prosecution story runs in the following lines: The deceased Uthiranam was the wife of the accused Arunachalam. They were residing together in a shed located on the south of the compound wall of the X-ray shed attached to the T.P. Hospital in Cheruvannur. There were frequent skirmishes between the two. On the date of the occurrence i.e. on 04-10-1997 at about 10.15 p.m. there ensured a wordy alteration between the accused and the deceased. In the course of the alteration, the accused hit the deceased with a hammer inflicting injuries on her face, neck and head. The deceased succumbed to the injuries. Thereafter the accused dragged the dead body to a nearby well and dumped it into the well. 3. On the basis of Ext.P2 statement given by PW3, the Sub inspector of Police, Nallala Police Station (PW13) registered the crime under the caption unnatural death. The Post Mortem examination on the dead body was performed by PW7 who issued Ext.P8 Post Mortem Certificate. After getting the Chemical Analysis Report, PW7 had given his final opinion as to the cause of death of the deceased. The doctor opined that the death was due to the injuries sustained by the deceased on her neck and face. Thereupon PW 13, the Sub Inspector sent Ext. P18 report to the court to change the caption unnatural death and incorporated Sec. 302 and 201 IPC. Pw16, the then Circle Inspector of Police, Nallala took up the investigation in the case. He arrested the accused on 7-10-1997 and on the basis of the information furnished by the accused M.O. 14 hammer was recovered. PW16 also seized M.O.1 to M.O.3 from the southern corner of the shed under Ext.P17 mahazar. He questioned the witnessed and recovered their statements. Pw14 held the charge before the court. 4. He arrested the accused on 7-10-1997 and on the basis of the information furnished by the accused M.O. 14 hammer was recovered. PW16 also seized M.O.1 to M.O.3 from the southern corner of the shed under Ext.P17 mahazar. He questioned the witnessed and recovered their statements. Pw14 held the charge before the court. 4. The accused denied the charge. In order to prove the guilt of the accused, prosecution examined PWs.1 to 16, marked Exts. P1 to P18 and identified M.O.1 to M.O.14. After the close of the prosecution evidence the accused was examined under Sec. 313 of the Cr.P.C. He denied the prosecution evidence and pleaded that he is innocent. No defence evidence was adduced. 5. On a consideration of the evidence brought on record, the learned Addl. Sessions Judge found the accused guilty of the offences, convicted him and sentenced him as stated earlier. 6. The learned counsel for the appellant strongly contended that the order of conviction and sentence passed by the lower court is clearly illegal and cannot be sustained either in law or on facts. According to the learned counsel, from the circumstantial evidence proved in this case, no irresistible conclusion can be reached regarding the guilt of the accused. He further contended that the court below has misunderstood and misappreciated the evidence in the case. On the other hand, the learned Public Prosecutor supported the impugned judgment and urged that there is no ground for interference. 7. It is not seriously disputed that the deceased had a homicidal death on account of the injures sustained by her on the date of the occurrence. Pw.7 has deposed before the court that the conducted autopsy on the dead body of the deceased and issued Ext.P8 Post mortem Certificate. At the time of the Post Mortem, blood and viscera were collected and sent for chemical analysis. On the strength of Chemical Analysis Report. Pw.7 had given Ext.P9 opinion as to the cause of the death of the deceased. Pw.7 has stated in his evidence that the deceased died on account of the Injuries on her face and neck. There is no reason to discard the evidence of PW.7 and Ext.P9. We fully agree with the finding of the court below that the deceased had a homicidal death on the date of the occurrence on account of the injuries sustained by her as alleged by the prosecution. 8. There is no reason to discard the evidence of PW.7 and Ext.P9. We fully agree with the finding of the court below that the deceased had a homicidal death on the date of the occurrence on account of the injuries sustained by her as alleged by the prosecution. 8. Then the question for consideration is whether the accused was responsible for the injuries sustained by the deceased which resulted in her death. There is no eye witness to the occurrence. The prosecution case rests upon circumstantial evidence. The law which is fairly settled about circumstantial evidence is that it would be such us to point out only to the guilt of the accused and the evidence should exclude all other hypothesis except the guilt of the accused. In this connection it is relevant to note the following observations of the Supreme Court in Joseph v. State of Kerala (2000 SCC Crl.926). “It is often said that though witnesses may lie, circumstances will not but at the same time it must cautiously be scrutinized to see that the incriminating circumstances are such as to lead only to a hypothesis of guilt and reasonably exclude every possibility of innocence of the accused.” Keeping in mind the above principles of law we shall consider the circumstances protected by the prosecution against the accused and relied on by the learned Sessions Judge to convict the accused. 9. The first circumstance relied on by the prosecution is that the accused and the deceased alone were residing in a shed where the murder is alleged to have taken place and the deceased was last seen in the company of the accused in the shed. There is reliable evidence on record to show that the accused and the deceased were residing in a shed owned by PW6 located near the X-ray shed attached to the T.P. Hospital in Cheruvannoor PW2 is residing near the T.P. Hospital and he is working as Asst. Manager of the Feroke Ply wood. He has deposed before the court that the deceased and the accused were residing in the shed located near the house PW3 is the son-in-law of the deceased it is also gatherable from his evidence that the deceased and the accused were residing in the shed where the deceased was murdered. Manager of the Feroke Ply wood. He has deposed before the court that the deceased and the accused were residing in the shed located near the house PW3 is the son-in-law of the deceased it is also gatherable from his evidence that the deceased and the accused were residing in the shed where the deceased was murdered. He would further say that he was also residing in the shed for some time immediately after his marriage and there were frequent quarrels between the accused and the deceased. Relying on the decision of the Supreme Court Dhana Jaya Reddy v. State of Karnataka ( 2001(4)SCC 9) the learned counsel for the appellant contended that the circumstance that the accused and the deceased were residing together in the shed where the murder took place cannot lead to the irresistible inference of his being guilty of the crime. In that case, the first accused, the wife of the deceased was convicted mainly on the ground of her being last seen with the deceased and her involvement in the commission of the crime on the basis of the confessional statement made by the 4th accused. The Supreme Court held that the first accused being the legally wedded wife of the deceased she was supposed to be with him in the house where the crime was committed and therefore that circumstance can be used against her only if there is any other circumstantial evidence connecting her with the crime. No doubt in this case the prosecution has a case that sometime prior to the occurrence there was a wordy altercation between the accused and deceased and during the altercation the accused threatened to kill his wife. The prosecution mainly relies on the evidence of PW11. PW11 claims to have heard the accused shouting and the deceased calling PW11 had not seen accused and the deceased on the night of occurrence. But according to him, he identified the accused by voice. The learned Public Prosecutor contended that identification of the person by the evidence of identification by voice can be relied upon. On the other hand, the learned counsel for the appellant strongly relied on the decision of this court in Joseph @ Avuthakunhi v. State of Kerala (1963 KLJ 369) and contended that identification of person by voice is risky. The learned Public Prosecutor contended that identification of the person by the evidence of identification by voice can be relied upon. On the other hand, the learned counsel for the appellant strongly relied on the decision of this court in Joseph @ Avuthakunhi v. State of Kerala (1963 KLJ 369) and contended that identification of person by voice is risky. According to the learned Public Prosecutor, the decision reported in Joseph’s case (1963 KLJ 369) was not followed by a Division Bench of this court in Samuel V. Sate of Kerala (1991(2) KLT 807). It was held in that case that if the court is satisfied about the identification of persons by evidence of identification of voice alone, no rule of law prevent its acceptance as the sole basis for conviction. But in the very same decision, it has been held by the Division bench that the proposition that conviction based on identification of voice alone may not be safe always depending on facts because mistakes are possible. We are of the view that the evidence of identification by voice should be accepted only with care and caution. While considering such evidence the court should look for correction by way of caution and prudence on a careful scrutiny of the evidence of PW11 we are not inclined to place absolutely reliance on his evidence. According to PW11, the conversation between the accused and the deceased was in Malayalam. Admittedly the accused and the deceased are Tamilians. In the normal course, they would have talked in their mother tongue. Therefore, the version of the witness that he heard the conversion between the accused and the deceased prior to the occurrence of assault could be accepted only with a pinch of salt. Another circumstance relied on the prosecution is that there were frequent quarrels between the accused and the deceased. No doubt, there is reliable evidence on record to show that the accused used to quarrel with his wife while they were living together as husband and wife. The evidence of PW2 in this regard is confirmed and corroborated by the evidence of PW3 also. But according to us, this cannot be projected as a circumstance against the accused. It is not unusual that a husband and wife may quarrel for one thing or other. This cannot be taken as a motive for committing the murder. 10. The evidence of PW2 in this regard is confirmed and corroborated by the evidence of PW3 also. But according to us, this cannot be projected as a circumstance against the accused. It is not unusual that a husband and wife may quarrel for one thing or other. This cannot be taken as a motive for committing the murder. 10. Another circumstance relied on by the prosecution is the recovery of M.O.14 hammer on the basis of the information furnished by the accused. PW16 the investigating officer has deposed that pursuant to the statement given by the accused M.O.14 was recovered under P4 Mahazar. Even if it is assumed that on the basis of the statement given by the accused M.O.14 was recovered. We are not inclined to give much reliance on the recovery of M.O.14 because in the statement pursuant to which the alleged weapon was recovered there is nothing to indicate that the accused was the author of concealment. In this connection it is relevant to note the decision of the Supreme Court in Dudh Nath Pande v State of Uttar Pradesh (1981 SCC CRL 379). It has been held that where the statement accompanying the discovery is vague as to who concealed the weapon, the pointing out of the weapon may only prove the accused’s knowledge as to where the weapon was kept. The learned Public Prosecutor relying on the decision of Supreme Court in State of Maharashtra v Suresh (2000(1) SCC CRL 263) contended that since the accused offer any explanation regarding his knowledge about concealment it has to be presumed that he was the person who concealed the weapon. It is true that in this case the accused has not offered any explanation. Even if it is assumed that the accused was the author of concealment the recovery of M.O.14 alone is not sufficient to connect it is relevant to note the decision of the Supreme Court in Bhupan v. State of M.P. 2002 SCC 556. In that case the Supreme Court held that the mere fact of the prosecution having recovered a sword at the instance of the appellant is not sufficient to best a conviction under Sec.302 of the IPC. 11. In that case the Supreme Court held that the mere fact of the prosecution having recovered a sword at the instance of the appellant is not sufficient to best a conviction under Sec.302 of the IPC. 11. The last circumstance relied on by the prosecution is that the blood stains found in the clothes worn by the accused at the time of the occurrence and that of the deceased are of the same group. It is in evidence that M.O.1 Mundu, M.O.2 shirt and M.O.3 thorthu were recovered from the scene of occurrence. It is also in evidence that at the time of inquest the clothes found on the dead body were taken into custody by the Sub Inspector who held the inquest. Ext.P15 chemical analysis report would show that the clothes contained human blood. It would further show that blood stains seen on the saree under skirt, blouse, jetty, mundu and thorthu were of ‘B’ Group. But there is no reliable evidence to show that M.O. belonged to the accused. It appears that the court below placed much reliance on the evidence of PW12 to hold M.O.1, M.O.2 and M.O.3 belonged the accused. No doubt, Pw12 has sworn before the court that he was working with the accused on the date of the occurrence during night and the accused was wearing M.O.1 mundu, M.O.2 shirt at that time. But on going through the evidence of PW12. We find it very difficult to accept his evidence. He had to admit in cross examination that he did not tell the police during investigation that M.Os 1, 2 and 3 belonged to the accused. If that be so, his version before the court cannot be accepted. 12. Thus, we have considered all the circumstances relied on by the lower court to convict the accused. From the circumstantial evidence proved in the case, no irresistible conclusion can be reached regarding the guilt of the accused. The circumstantial evidence proved in this case only points out a finger of suspicion towards the accused and nothing more. Suspicion, however strong it may be, cannot take the place of proof. For the reasons stated above, we are unable to sustain the order of conviction and sentence passed by the lower court against the appellant. We set aside the conviction and sentence and acquit the appellant. Suspicion, however strong it may be, cannot take the place of proof. For the reasons stated above, we are unable to sustain the order of conviction and sentence passed by the lower court against the appellant. We set aside the conviction and sentence and acquit the appellant. If the appellant is in custody he shall be released forthwith if he is not wanted in any other case.