Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 2286 (KER)

Sajitha W/o Paul Varghese v. State of Kerala

2025-08-25

A.K.JAYASANKARAN NAMBIAR, JOBIN SEBASTIAN

body2025
JUDGMENT : JOBIN SEBASTIAN, J. 1. Crl.Appeal No.491/2019 and Crl.Appeal No.716/2020 arise out of the judgment in Sessions Case No. 413/2014 on the file of the Additional Sessions Court, North Paravur. Out of the said appeals, Crl.Appeal No.491/2019 is one filed by the 1st accused in the above-said Sessions case, challenging the judgment of conviction and order of sentence passed against her for an offence punishable under Section 302 of the Indian Penal Code , whereas, Crl.Appeal No. 716/2020 is an appeal filed by the State under Section 378 (1)(b) of the Code of Criminal Procedure , challenging the order of acquittal of the 2nd accused in the said Sessions case. 2. The prosecution case in brief is as follows:- The 1st accused, who is the wife of the deceased Paul Varghese @ Kuttan, was maintaining an illicit relationship with the 2nd accused. Believing that the husband of the 1st accused would be a hindrance to continue the said relationship, both the accused together hatched a criminal conspiracy to murder Paul Varghese. In pursuance of the said conspiracy, the 2nd accused came to the house of the 1st accused and concealed himself in one of the rooms of the said house as arranged by the 1st accused. Thereafter, at around 10 p.m., when Paul Varghese returned home, the 1st accused mixed powdered sleeping pills in the food and served the same to him. However, realising that the overdose of the sleeping pills might not be sufficient to cause death of Paul Varghese, in the early morning of of 23.12.2011 at 2.00 a.m., while Paul Varghese was in deep sleep, the 1st accused wrapped a towel around his neck and the 2nd accused tightened the said towel forcefully and in the meantime, the 2nd accused pressed a pillow on his face and caused suffocation and thereby committed murder of Paul Varghese. Thus, the accused are alleged to have committed the offences punishable under Sections 120B and 302 of the Indian Penal Code . 3. On completion of the investigation of this case, the final report was submitted before the Judicial First Class Magistrate Court-I, Aluva. Being satisfied that the case was one triable exclusively by the Court of Session, the learned Magistrate, after complying with all the necessary formalities, committed the case to the Court of Session, Ernakulam, under Section 209 of the Criminal Procedure Code. Being satisfied that the case was one triable exclusively by the Court of Session, the learned Magistrate, after complying with all the necessary formalities, committed the case to the Court of Session, Ernakulam, under Section 209 of the Criminal Procedure Code. The learned Sessions Judge, having taken cognizance of the offences, made over the case for trial and disposal to the Additional Sessions Court, North Paravur. On appearance of the accused before the trial court, the learned Additional Sessions Judge, after hearing both sides under Section 227 of Cr.P.C. and upon a perusal of the records, framed a written charge against the accused for offences punishable under Sections 120 B and 302 r/w 34 of IPC. When the charge was read over and explained to the accused, both of them pleaded not guilty and claimed to be tried. 4. During the trial, from the side of the prosecution, PW1 to PW27 were examined and marked Exts.P1 to P21. MO1 series to MO15 were exhibited and identified. After the completion of the prosecution evidence, the accused were questioned under Section 313 of Cr.P.C., during which both of them denied all the incriminating materials brought out in evidence against them. Thereafter, both sides were heard under Section 232 of Cr.P.C., and as it was not a fit case to acquit under the said provision, the accused were directed to enter on their defence and to adduce any evidence that they may have in support thereof. However, no evidence whatsoever has been produced from the side of the accused. Thereafter, both sides were heard in detail, and finally, the learned Additional Sessions Judge found the 2nd accused not guilty of the offences punishable under Sections 120B and 302 of IPC, and he was acquitted under Section 235 (1) of Cr.P.C. The 1st accused was also found not guilty of the offence punishable under Section 120B of IPC and she was acquitted on the said charge. However, the 1st accused was found guilty of the offence punishable under Section 302 IPC, and she was convicted and sentenced to undergo imprisonment for life. Aggrieved by the said finding of guilt, conviction, and the order of sentence passed, the 1st accused has come up with Crl. Appeal No. 491/2019. Similarly, challenging the order of acquittal passed in favour of the 2nd accused, the State has preferred Crl.Appeal No.716/2020. 5. Aggrieved by the said finding of guilt, conviction, and the order of sentence passed, the 1st accused has come up with Crl. Appeal No. 491/2019. Similarly, challenging the order of acquittal passed in favour of the 2nd accused, the State has preferred Crl.Appeal No.716/2020. 5. We heard G. Priyadarsan Thampi, the learned counsel for the appellant in Crl.Appeal No.491/2019 and Sri. Renjith, the learned Senior Public Prosecutor, who appeared for the respondent in the said Crl.Appeal as well as for the appellant in Crl.Appeal No.716/2020. We also heard Sri. K.V. Jayadeep Menon, the State Brief for the respondent in Crl.Appeal No.716/2020. 6. This is a case where a wife, along with her paramour, allegedly murdered her husband to eliminate the obstacle to their illicit relationship. As evident from the records, this case was originally registered under Section 174 of the Cr.P.C. as an unnatural death. Subsequently, following the leads received in the investigation, offences under Sections 120B and 302 r/w 34 IPC were incorporated in this case after deleting Section 174 of the Cr. P.C. As this case lacks direct evidence, the prosecution hinges on circumstantial evidence to prove the charges levelled against the accused. 7. The law was set in motion in this case on the strength of the FIS given by a close relative and neighbour of the deceased, Paul Varghese @ Kuttan, to the Police. When the first informant was examined as PW1, he deposed that the deceased in this case is his paternal cousin. According to him, in the early morning of 23.12.2011, the 1st accused, who is the wife of the deceased, contacted him over the phone and informed him that Kuttan, the deceased in this case, was not responding to her calls. She also asked him to come quickly. Then he, along with his wife, rushed to the house of Kuttan. Upon arrival, he found Kuttan lying on a bed, covered with a blanket. Though he removed the blanket and called Kuttan, he remained motionless. Immediately, he contacted the brother-in-law of the deceased, who arrived with a vehicle. Thereafter, he, along with the brother-in-law of Kuttan, took Paul Varghese to Samaritan Hospital, Pazhanganad. After examining Kuttan, the Doctor declared Kuttan's death. The Doctor further informed that a ligature mark was found on the neck of the deceased, and therefore, the dead body would not be released soon. Thereafter, he, along with the brother-in-law of Kuttan, took Paul Varghese to Samaritan Hospital, Pazhanganad. After examining Kuttan, the Doctor declared Kuttan's death. The Doctor further informed that a ligature mark was found on the neck of the deceased, and therefore, the dead body would not be released soon. Consequently, he returned to the house of Kuttan and asked the 1st accused about the mark found on the deceased’s neck. In response, she stated that it was caused by a helmet. Thereafter, he went to the Police Station and lodged Ext.P1 statement based on which the initial investigation commenced. Apart from the deceased, his mother, his wife (1st accused), and his two children were residing in the house of the deceased. However, on the alleged date of the incident, the mother of the deceased was not present in the home. After receiving the phone call from the wife of the deceased, when he reached the house of the deceased, the 1st accused alone was in the said house. Both the children of the deceased were asleep at that time. 8. Another neighbour of the deceased was examined as PW2. He deposed that on 23.12.2011 at 3.00 a.m. PW1, his neighbour, contacted him over the phone and told him that Paul Varghese, the deceased in this case, was lying motionless. Upon hearing this, he, along with his son, rushed to the house and found Paul Varghese lying motionless in his house. There was no pulse when he checked. Thereafter, he, along with others, took Paul Varghese to the hospital. 9. When the brother-in-law of the deceased was examined as PW3, he deposed that the deceased Kuttan was his wife’s brother. On the date of the incident, apart from the deceased, his wife and two children were in the house. The mother of the deceased, who is his wife’s mother, was also in his house. On 23.12.2011, the wife of PW1 telephoned and informed him that Kuttan was lying motionless and not responding to her call. Hence, he, along with his wife, rushed to the house of Kuttan in his friend’s vehicle. On arrival, he found the wife of Kuttan, the 1st accused, sitting on a stool inside the kitchen. Kuttan was found lying in the bedroom. Though he called Kuttan, he did not respond. Hence, he, along with others, took Kuttan to the hospital in the vehicle in which he came. On arrival, he found the wife of Kuttan, the 1st accused, sitting on a stool inside the kitchen. Kuttan was found lying in the bedroom. Though he called Kuttan, he did not respond. Hence, he, along with others, took Kuttan to the hospital in the vehicle in which he came. PW3 also stated that on the previous night of the incident, at 10.00 p.m., Kuttan had visited his house to deliver medicine for his mother, and returned by 10.30 p.m. PW3 further deposed that when he found Kuttan lying motionless in the house and suggested taking him to the hospital, the 1st accused told that there was no purpose in taking Kuttan to the hospital. According to PW3, after examining Kuttan at the hospital, the Doctor noted a ligature mark on the neck of Kuttan and expressed a suspicion that it could be a case of murder. However, during the cross-examination, PW3 admitted that he did not tell the Police that when he suggested taking the deceased to the hospital, the accused responded that there was no purpose in taking Kuttan to the hospital. 10. When the wife of PW3, who had accompanied PW3 to the house of the deceased, was examined as PW4, she also deposed in a similar line as spoken by PW3. Notably, in the chief examination, she deposed that when she enquired with the 1st accused about the ligature mark noted by the Doctor, the first accused said that the injury was sustained by the strap of a helmet. Moreover, PW4 further deposed that the mother of the 1st accused, who came to the house after the incident told her that the 1st accused had stated that the deceased was found hanging in the window and that she had cut the rope with which the deceased was hanging, laid him on a cot, covered him with a blanket and thereafter, burned the rope. However, during cross-examination, PW4 admitted that at the time when she had given statement to the Police, she did not state to the Police that the mark found on the neck of the deceased was caused by the strap of a helmet. However, during cross-examination, PW4 admitted that at the time when she had given statement to the Police, she did not state to the Police that the mark found on the neck of the deceased was caused by the strap of a helmet. Similarly, PW4 deposed that she had not stated to the Police that the mother of the 1st accused had told her that the deceased was found hanging in the window of the house, and that the 1st accused had cut the rope and laid the deceased on a cot. 11. PW6 is a crucial witness examined by the prosecution. On examination before the court, PW6 deposed that the deceased is her uncle and the 1st accused is her uncle’s wife. During the period of the incident in this case, PW6 was working at Co- operative Hospital, Kakkanad. In the month of October 2011, the 1st accused asked her to arrange a SIM card. Accordingly, PW6 procured an Idea mobile SIM card in her name and handed it over to the 1st accused. The number of the said SIM card was 9562560946. Though the said SIM card was subscribed in her name, the same was used by the 1st accused. 12. Another crucial witness examined by the prosecution is PW10. He deposed that he is a Taxi driver by profession and resides at Pambadi near Kottayam. He has acquaintance with the 2nd accused, who is a friend of his friend Renjith. The 2nd accused used to hire his vehicles for trips. On two occasions, the 2nd accused hired his vehicle and, as directed by the accused, he took the 2nd accused near a Panchayat well located near Vegaland road in his vehicle. From there, as told by the 2nd accused, he took him near a paddy field. When reaching there, the accused left on foot, stating that he needed to go to a location that was inaccessible by vehicle and asking PW10 to wait there after having tea from any nearby tea shop. On both the said occasions, the 2nd accused came back after a while and got into the car, and PW10 dropped him back as directed. On both the said occasions, the 2nd accused came back after a while and got into the car, and PW10 dropped him back as directed. While so, on 19.12.2011, the 2nd accused contacted over the phone and told him that he, along with his family, was planning a trip to Velankanni and accordingly asked PW10 to come with his car at Kaloor on 22.12.2011 at 3.00 a.m. On 22.12.2011, on the evening, the 2nd accused again contacted him and asked him to come near the Kakkanad signal. Accordingly, when he was proceeding to Kakkanad signal, at around 2.30 a.m., the 2nd accused asked him to reach a bus stop near Vegaland Road. As asked by the 2nd accused when he reached Vegaland Road, the 2nd accused was present there holding a plastic cover in his hand. Thereafter, the 2nd accused entered the car. When the car reached near Vettikkad Mukku, the accused took a towel and put it on the dashboard of the car. Subsequently, on reaching the Vettikkadu bridge, the 2nd accused took the towel from the dashboard and threw it into the river. When he asked about this act, the 2nd accused said that, as he had been at Velankanni for the last two days, the towel had become dirty and that is why he disposed of it. Thereafter, he dropped the 2nd accused at his house at Pampadi. On 24.12.2011, the accused again contacted him over the phone and asked him to come with his vehicle to attend a funeral ceremony at Kakkanad. The accused also asked him to purchase a wreath on the way. Hence, PW10 reached the 2nd accused’s house with a wreath, after which the 2nd accused and his mother entered the vehicle, and he dropped both of them in the compound of a church on Vegaland Road to attend a funeral function. Thereafter, 2nd accused placed the wreath on the dead body. 13. As already stated, this is a case in which there is no direct evidence to prove the occurrence; instead, the prosecution relies on circumstantial evidence to establish the accused’s guilt. Before delving into the details of the circumstantial evidence presented in this case, it is essential to examine the principles and guidelines governing the evaluation of such evidence. 14. 13. As already stated, this is a case in which there is no direct evidence to prove the occurrence; instead, the prosecution relies on circumstantial evidence to establish the accused’s guilt. Before delving into the details of the circumstantial evidence presented in this case, it is essential to examine the principles and guidelines governing the evaluation of such evidence. 14. In Sarad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 , the Apex Court discussed the nature, character, and essential proof required in a criminal case which rests on circumstantial evidence alone and held as under: (i) The circumstances from which the conclusion of guilt is to be drawn should be fully established; (ii) 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; (iii) The circumstances should be of a conclusive nature and tendency; (iv) They should exclude every possible hypothesis except the one to be proved; and (v) 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. 15. A similar view has been reiterated by the Apex Court in Bodh Raj alias Bodha v. State of Jammu and Kashmir, AIR 2002 SC 3164 , State of Uttarpradesh v. Satish, AIR 2005 SC 1000 and Subramaniam v. State of Tamil Nadu, (2009) 14 SCC 415 . 16. In cases built upon circumstantial evidence, a complete and unbroken chain of evidence is a requisite. This chain must inevitably lead to the conclusion that the accused, and none other than, could have committed the offence. In other words, to sustain a conviction, circumstantial evidence must be comprehensive and incapable of explanation of any hypothesis other than the guilt of the accused. Thus, such evidence must not only be consistent with the accused’s guilt but also inconsistent with his innocence. 17. Keeping in mind the above principles, the crucial question in the case at hand is whether the prosecution has fully and exhaustively established the circumstances relied upon to prove the charge levelled against the accused. Thus, such evidence must not only be consistent with the accused’s guilt but also inconsistent with his innocence. 17. Keeping in mind the above principles, the crucial question in the case at hand is whether the prosecution has fully and exhaustively established the circumstances relied upon to prove the charge levelled against the accused. Furthermore, it must be ascertained whether these circumstances lead unmistakably to the conclusion of the accused’s guilt, to the exclusion of any other plausible explanation, including innocence. In deciding the said question, the primary aspect that needs to be considered is what is the nature of the death of the deceased. Only if it is a homicidal one, there is a purpose in entering into other discussions, especially when the offence alleged in this case is under Section 302 of the IPC. 18. The evidence of PW1 and other prosecution witnesses who allegedly rushed to the house of the 1st accused upon knowing about the incident reveals that, upon arrival, they found the deceased lying motionless in a cot inside the bedroom of the said house. Their evidence collectively shows that, after reaching the said house, they took the deceased to Samaritan Hospital, Pazhanganad. The Doctor at the said hospital who examined the deceased and declared him dead was examined as PW23. The evidence of PW23 reveals that it was on 23.12.2011 at 3.20 a.m., the deceased was brought dead to the hospital. On unequivocal terms, PW23 deposed that on examination, he noted a mark on the neck of the deceased and noted that the face appeared bluish. Hence, he felt some suspicion regarding the cause of death and accordingly intimated the matter to the Police. However, he admitted that the records with respect to the examination of the deceased were prepared by another Doctor, and he is now out of station. The said record is marked as Ext.X1. 19. Moreover, when the Sub Inspector of Police, Thrikkakkara Police Station, who conducted the inquest and prepared Ext.P3 inquest report, was examined as PW21, he deposed that upon examining the dead body, he noted a ligature mark on the neck of the deceased. PW8, an attestor to the said inquest report, also testified about such a mark on the neck of the deceased. He further stated that blood and watery fluid were oozing from the ear of the deceased. PW8, an attestor to the said inquest report, also testified about such a mark on the neck of the deceased. He further stated that blood and watery fluid were oozing from the ear of the deceased. Of course, the evidence of these witnesses taken together strongly supports the conclusion that the death of the deceased was homicidal in nature. 20. Likewise, it is equally important to consider the evidence of the Doctor who conducted the autopsy. PW19, the Doctor who conducted the postmortem examination, deposed that it was on 23.12.2011 at 11.40 a.m., he conducted the said examination. The postmortem certificate prepared by him was marked as Ext.P12. Referring to Ext.P12, the Doctor deposed that he noted the following antemortem injuries in the postmortem examination: 1. Contused abrasion 13 cm long (2-2.5 cm wide) on the front and right side of neck. It was 2.5 cm outer to midline below adams apple on right side and 4 cm above sternal notch and 7.5 cm below right jaw bone middle and terminating 5 cm below angle of jaw bone right side. The injury was not prominent for an area 2 cm on front of neck and 1.5 cm on right side. The above areas showed multiple spotted abrasions. 2. Contusion 1.5x2 cm on front of neck right side 3 cm outer to midline and 0.5 cm below injury no. 1. 3. Abrasion 1x0.5 cm over adam apple. 4. Contusion 7x2 cm on root of neck left side,8 cm below angle of jaw 5. Multiple contusions on both upper eyelids 6. Contusion 3x2 cm on the right malar eminence 7. Contusion 1x1 cm on bridge of nose and Contusion 2x2 cm on left malar eminence. 21. The Doctor opined that the death was caused due to the constrictive force applied to the neck and by smothering. He further clarified that the deceased died due to the combined effect of these two factors. When the Doctor was confronted with the MO14 towel, he further stated that the constrictive force can be caused by using a towel like MO14. Likewise, he further opined that smothering can be caused by using a pillow like MO8. A conjoint reading of the evidence of the Doctor and Ext.P12 postmortem certificate unerringly shows that the death of Paul Varghese, the deceased in this case, was homicidal in nature. 22. Likewise, he further opined that smothering can be caused by using a pillow like MO8. A conjoint reading of the evidence of the Doctor and Ext.P12 postmortem certificate unerringly shows that the death of Paul Varghese, the deceased in this case, was homicidal in nature. 22. Now, reverting to the circumstances relied upon by the prosecution to prove the guilt of the accused, it is to be noted that the first circumstance pressed into service in the case at hand is that both the accused had a strong motive to kill the deceased. The prosecution alleges that the 1st accused, who is the wife of the deceased, was maintaining an illicit relationship with the 2nd accused, and, believing that the husband of the 1st accused would be a hindrance to continuing their illicit relationship, both the accused conspired to commit murder of the deceased and accordingly executed it. While considering the question whether the prosecution succeeded in proving a motive, it is to be noted that although several witnesses were examined from the side of the prosecution, including neighbours and relatives, none of them deposed that they were aware of such a relationship between both the accused. We are not oblivious that such illicit relationships are developed and maintained in secrecy, and hence, it is not always prudent to look for convincing evidence regarding such relationships. However, when a motive is alleged, the prosecution bears the burden of proving it. This obligation cannot be excused or sidestepped by claiming that the secretive nature of the alleged relationship makes evidence difficult to obtain. 23. One of the evidence which the prosecution relies on to prove the alleged motive is the testimony of PW10, a taxi driver who allegedly took the 2nd accused to the house of the 1st accused on two occasions prior to the incident in this case. However, during the examination before the court, what PW10 deposed is that on the said two occasions, the 2nd accused hired his car and, as directed by him, he took the 2nd accused in his car near a panchayat well located at Veegaland Road. From there, as instructed by the 2nd accused, he took him near a paddy field, and on reaching there, the 2nd accused alighted from the car and left on foot, stating that he needed to go to a place that was inaccessible by vehicle. From there, as instructed by the 2nd accused, he took him near a paddy field, and on reaching there, the 2nd accused alighted from the car and left on foot, stating that he needed to go to a place that was inaccessible by vehicle. However, PW10 in his deposition did not state that it was to the house of the 1st accused, the 2nd accused went on the said two occasions. More pertinently, no attempt was made from the side of the prosecution to establish that the paddy field where the 2nd accused was dropped by PW10 is situated near or around the house of the 1st accused. Therefore, the said feeble evidence of PW10 will in no way help the prosecution to substantiate the allegation that the 2nd accused maintained an illicit relationship with the 1st accused. Moreover, it is an undisputed fact that during the period of occurrence in this case, the mother of the deceased, as well as the children of the 1st accused were residing together in the same house with the 1st accused. However, no attempt, whatsoever, was made from the side of the prosecution to examine either the mother of the deceased or his children to prove that the 2nd accused was a frequent visitor in the said house. 24. In order to prove the alleged relationship, the prosecution made an attempt to establish that there were frequent phone calls between the 1st and the 2nd accused. It is alleged that during the relevant period, the 1st accused was using mobile phone nos. 9562560946 and 9747888776, while the 2nd accused was using the mobile number 9747883662. In order to prove the alleged frequent phone calls, the call data records of these mobile phones were produced and marked in evidence as Ext.P15 series. The Nodal Officer, who originally issued the call data records along with a certification under Section 65B of the Indian Evidence Act, was not examined as a witness in this case. However, in his stead, another Nodal Officer, Idea Mobile Company, Kerala Circle, was examined as PW24. During examination, PW24 deposed that the Nodal Officer who originally retrieved the call data and issued Ext.P15 series is one C.Ramachandran, and he is presently working in Delhi. According to PW24, he had an acquaintance with the signature of said Ramachandran and identified his signature in Ext.P15. During examination, PW24 deposed that the Nodal Officer who originally retrieved the call data and issued Ext.P15 series is one C.Ramachandran, and he is presently working in Delhi. According to PW24, he had an acquaintance with the signature of said Ramachandran and identified his signature in Ext.P15. As Ext.P15 series are documents issued in discharge of official duty, there is nothing wrong in placing reliance on the same, particularly in view of Section 32(2) of the Indian Evidence Act. 25. However, whether the said call data records, as well as the customer application details will help the prosecution to connect the accused with the above-said phone number is a matter of evidence. From the materials, it is revealed that out of the two phone numbers allegedly used by the 1st accused, the mobile phone No.9562560946 is admittedly subscribed in the name of PW6, the niece of the deceased. During examination before the court, PW6, the subscriber of the said phone number, deposed that it was at the request of the 1st accused that she had taken a SIM card with that number in her name and handed it over to the 1st accused, and the 1st accused was using it thereafter. At this juncture, it is pertinent to note that the said SIM card is not seized in this case. Moreover, no explanation has been offered by the prosecution for its non-seizure. Similarly, the mobile phone handset allegedly used by the 1st accused during the relevant period is also not recovered in this case, and no plausible explanation whatsoever has been offered for the non-recovery of the same. The non- recovery of the mobile handset as well as the SIM card from the possession of the 1st accused creates a serious dent in the evidence regarding the call records adduced in this case, particularly when the alleged SIM card was registered in the name of PW6. 26. Another phone number allegedly used by the 1st accused is 9747888776. According to the prosecution, although the said number was subscribed in the name of the 2nd accused, he had handed it over to the 1st accused to facilitate the communication between them. The call detail reports of the said mobile phone number, as well as mobile phone number 9747883662, the phone number allegedly used by the 2nd accused, reveal that phone calls were made between these two phone numbers recurrently. The call detail reports of the said mobile phone number, as well as mobile phone number 9747883662, the phone number allegedly used by the 2nd accused, reveal that phone calls were made between these two phone numbers recurrently. However, the fact that the mobile phone No. 9747888776 is not subscribed in the name of the 1st accused stands fully established. Although the prosecution alleged that the said SIM card was procured by the 2nd accused and handed over to the 1st accused, the said SIM card was not recovered from the 1st accused. As already stated, the handset of the 1st accused was also not seized in this case. Therefore, we found that the allegation that mobile phone No.9747888776 was used by the 1st accused, though it was subscribed in the name of the 2nd accused, still remains as a mere allegation. In short, we have no hesitation in holding that the prosecution miserably failed in proving the motive. Undisputedly, if the motive was proved, the same would have certainly formed a link in the chain of circumstances in a case like this that rests on circumstantial evidence. However, it cannot be said that proof of motive is sine qua non in the case built upon circumstantial evidence, particularly if there are other telling and strong circumstances to prove the guilt of the accused. 27. Another circumstance relied upon by the prosecution to prove the complicity of the 1st and 2nd accused in this crime is that immediately after the commission of the offence, the 2nd accused contacted PW10 from the land phone of the deceased. Relying on the said post-offence phone call, the prosecution contended that the same would certainly reveal the fact that the 2nd accused was in the house of the deceased at the time of the commission of the offence, along with the 1st accused. In order to prove the same, the prosecution is mainly relying on the evidence of PW10, who allegedly received the said phone call. It is true that during the examination before the court, PW10 deposed that on the evening of 22.12.2011, the 2nd accused called him over the phone and asked him to reach Kakkanad signal. In order to prove the same, the prosecution is mainly relying on the evidence of PW10, who allegedly received the said phone call. It is true that during the examination before the court, PW10 deposed that on the evening of 22.12.2011, the 2nd accused called him over the phone and asked him to reach Kakkanad signal. Subsequently, in the early morning of 23.12.2011, when he was proceeding to Kakkanad signal, at around 2.30 a.m., the 2nd accused contacted him over the phone and asked him to reach a bus stop near Veegaland Road. According to the prosecution, the second call was made by the 2nd accused from the land phone number of the deceased. 28. When the Deputy General Manager of BSNL was examined as PW17, he deposed that, as per the requisition given by the investigating officer in this case, he had issued the call records of landline number 0484-2425675. The call detail records given by him pertaining to the said landline number are marked as Ext.P11 series. From a perusal of Ext.P11 series, it is evident that a phone call was made on 23.12.2011 at 2.15 a.m. from the said landline number to a mobile number 9744604622, which is established to be the number of PW10. However, referring to Ext.P11 series, PW17 deposed that the said land phone connection was in the name of one Benny K. Varkey, Kocheriyal House bearing No.VIII/589. Notably, the said land phone connection is neither in the name of the 1st accused nor in the name of her husband or his mother, rather, it is in the name of one Benny K.Varkey. Even then, no attempt is seen to be made by the prosecution to examine the said Benny K. Varkey as a witness in this case. More curiously in Ext.P2 scene mahazar, it is mentioned that the house in which the incident in this case occurred is bearing No.VI/1141 of Thrikkakara Gramapanchayath. However, what PW17 deposed is that the above-said land phone connection was given in House No.VIII/589. We are not oblivious that in the final report, it is stated that the place of occurrence is House No.VI/1141 of Thrikkakara Panchayat, which corresponds to House No.VIII/589 of Thrikkakara Municipality. However, the said statement in the final report is not evidence. However, what PW17 deposed is that the above-said land phone connection was given in House No.VIII/589. We are not oblivious that in the final report, it is stated that the place of occurrence is House No.VI/1141 of Thrikkakara Panchayat, which corresponds to House No.VIII/589 of Thrikkakara Municipality. However, the said statement in the final report is not evidence. Moreover, the prosecution has not examined any responsible officer from the local authority to show that the new House No.VIII/589 corresponding to the old House No.VI/1141, and both the numbers pertain to the same house. As already stated, the non- examination of the subscriber of the said land phone number is fatal to the prosecution in this case. Therefore, we have no hesitation in holding that the evidence adduced by the prosecution is not sufficient to conclude that it was from the land phone connection allotted to the house of the deceased, the 2nd accused, contacted PW10 after the commission of the alleged offence. 29. Another material relied on by the prosecution to prove the complicity of the 2nd accused in the commission of the offence is the recovery of the towel, which was allegedly used in the commission of the offence, on the strength of the alleged disclosure statement given by the 2nd accused. When the Circle Inspector of Police who conducted the major chunk of the investigation in this case was examined as PW25, he deposed that during the course of the investigation it was revealed that immediately after the commission of the offence, a phone call was made from the landline number of the house where the incident in this case occurred to the mobile number of PW10. The said phone call was at 2.15 a.m. Later, on the investigation proceeded based on the said phone call, it was revealed that the 1st and the 2nd accused were the perpetrators of this crime, and both of them were arrested on 01.01.2012. According to PW25, on interrogation, the 2nd accused made a confession statement, and in the said statement, he disclosed that: (While going to my house, on the way, I had thrown the towel from a bridge towards a river, and if I am taken, I will show you the place where I threw the towel) 30. According to PW25, on interrogation, the 2nd accused made a confession statement, and in the said statement, he disclosed that: (While going to my house, on the way, I had thrown the towel from a bridge towards a river, and if I am taken, I will show you the place where I threw the towel) 30. According to PW25, on the basis of the said disclosure statement given by the 2nd accused and as led by him, PW25 reached the banks of the Moovattupuzha River near Vettikkattumukku bridge. Then the 2nd accused took a towel from a bushy area on the banks of the said river and handed it over to PW25. According to PW25, he took the said towel into custody after describing in Ext.P6 seizure mahazar. The relevant portion of the disclosure statement made by the accused, recorded in Ext.P6 mahazar and proved through PW25, is marked as Ext.P6(a). During the examination before the court, PW25 identified the said towel and marked as MO14. However, it is pertinent to note that there is nothing to show that MO14 is the towel used by the accused to strangulate the deceased. The FSL report pertaining to the result of the examination of material objects, in this case, was marked as Ext.P21 through PW27, the Circle Inspector of Police, Kalamassery. A perusal of the Ext.P21 report reveals that the MO14 towel, which is shown as item No.5 in the said report, was subjected to examination at the biological division of FSL. When the MO14 towel (item No.5) was subjected to the benzidine test, blood was detected. At this juncture, it is pertinent to note that even the origin of the blood detected on MO14 was not verified in the examination and the grouping was also not done. There is absolutely no material to suggest that the blood detected was human in origin. Moreover, in the report, it is stated that foreign tissues are not detected in item No.5. Likewise, Ext.P21 FSL report further reveals that, although the cellophane impressions taken from the neck and hands of the deceased were examined as item No.4(a), 4(b), and 4(c) in the forensic laboratory, fibers similar to item No.5 (MO14 towel) were not detected in 4(a), 4(b) and 4(c). Likewise, Ext.P21 FSL report further reveals that, although the cellophane impressions taken from the neck and hands of the deceased were examined as item No.4(a), 4(b), and 4(c) in the forensic laboratory, fibers similar to item No.5 (MO14 towel) were not detected in 4(a), 4(b) and 4(c). Therefore, it is liable to be held that there is absolutely no evidence to show that the MO14 towel is the towel used by the accused to strangulate the deceased. 31. Moreover, the evidence of PW25, the investigating officer, clearly reveals that he got the lead regarding the involvement of the accused in this case on verification of the call detail records of certain phone numbers. According to PW25, on such verification, it was revealed that immediately after the commission of the alleged offence, that is on 23.12.2011 at 2.15 a.m., a call was made from the landline number of the deceased to the mobile number of PW10. Likewise, the evidence of PW25 shows that the investigation with respect to the said phone call established that it was in fact, made by the 2nd accused to the mobile phone number of PW10. That became a key factor in proving the involvement of the 2nd accused in this crime, and accordingly, he was arrested. The sequence of events in the investigation narrated by PW25 that ultimately resulted in the arrest of the accused in this case clearly shows that it was on the basis of the information gathered from PW10, the complicity of the 2nd accused in the commission of the offence was revealed. 32. At this juncture, it is pertinent to note that the 1st and the 2nd accused were arrested in this case only on 01.01.2012. Likewise, the alleged recovery of the towel used in the commission of the offence was effected on 03.01.2012. As the involvement of the 2nd accused was revealed mainly on the basis of a call received by PW10, certainly, PW10 might have been interrogated by the police prior to the arrest of the 2nd accused. Significantly, when PW10 was examined, he deposed that it was in his presence the 2nd accused threw the towel into the river. Therefore, nobody could be blamed if it is found that the investigating officer got information regarding the towel from PW10 prior to the arrest of the 2nd accused. Significantly, when PW10 was examined, he deposed that it was in his presence the 2nd accused threw the towel into the river. Therefore, nobody could be blamed if it is found that the investigating officer got information regarding the towel from PW10 prior to the arrest of the 2nd accused. Notably, PW25, the investigating officer, did not depose anything about the date on which he interrogated PW10. Moreover, a perusal of the 161 statement of PW10 reveals that the date on which the said statement was recorded is conspicuously absent in it. The non-mentioning of the date in the 161 statement of PW10 assumes much importance, particularly when the 161 statements of the other witnesses contain the date on which those statements were recorded. Therefore, it is not digestible to believe that the recovery of the towel was made solely on the strength of the disclosure statement made by the 2nd accused. As per Section 27 of the Indian Evidence Act, only when a fact is discovered in consequence of information received from the accused, so much of such information which leads to the said discovery can be proved against the accused. In the case at hand, it cannot be conclusively said that the recovery was effected solely on the strength of the information given by the 2nd accused. Consequently, the alleged recovery of the towel will not fall under Section 27 of the Indian Evidence Act. 33. The primary circumstance relied upon by the prosecution to establish the 1st accused’s guilt is that the deceased was last seen in her company at the time of his death. In other words, the deceased was last seen alive in the company of the 1st accused. We are conscious that there is no direct evidence to show that the deceased was found last seen alive in the company of the 1st accused. However, a conjoint reading of the evidence and circumstances brought out in this case unerringly points to the conclusion that Paul Varghese, the deceased, died while he was in the company of the 1st accused. 34. Subsequently, the evidence of PW3, who is none other than the brother-in-law of the deceased, shows that the mother of the deceased, who is his wife’s mother, was staying at his house on the date of the incident. 34. Subsequently, the evidence of PW3, who is none other than the brother-in-law of the deceased, shows that the mother of the deceased, who is his wife’s mother, was staying at his house on the date of the incident. His evidence further shows that on 22.12.2011 at around 10 p.m., the deceased had visited his house to deliver medicine for his mother and returned by 10.30 p.m. Thereafter, in the early morning of 23.12.2011, the 1st accused contacted him over the phone and informed him that Paul Varghese, her husband is lying motionless and not responding to her call. 35. Upon receiving the said phone call, PW3 rushed to the house of Paul Varghese and found him lying motionless in a cot inside the bedroom, while the 1st accused was seen sitting on a stool in the kitchen. The evidence of PW1 in the above regard remains unchallenged in the cross-examination. More importantly, even the 1st accused does not have a case that she was not in her house when the incident in this case occurred. From the materials on record, it is established that the incident in this case occurred between 10.30 p.m. on 22.12.2011 and 2.15 a.m. on 23.12.2011. Therefore, the presence of the 1st accused with her husband in her house during such late hours is natural. In short, there is no dispute that Paul Varghese died while he was in the company of the 1st accused. 36. It has also been brought out in evidence that, apart from the deceased, the 1st accused and their minor children were present in the house at the relevant time, and the mother of the deceased, who usually resided there, was at her daughter’s house on the alleged date of the incident. The evidence of PW3 to this effect also remains unchallenged in the cross-examination. More pertinently, even the 1st accused does not have a case that, apart from her, the deceased, and their minor children, anyone else was present in the house during the relevant time. 37. Notably, from the evidence it is established that it was on receiving a phone call from the 1st accused, PW1, and other witnesses rushed to the house of the deceased and found him lying motionless in a bed covered with a blanket. 37. Notably, from the evidence it is established that it was on receiving a phone call from the 1st accused, PW1, and other witnesses rushed to the house of the deceased and found him lying motionless in a bed covered with a blanket. Immediately thereafter, the deceased was taken to a hospital, where, after examination, the Doctor reported that the deceased was brought dead. The Doctor noted a mark on the neck of the deceased and observed that the face of the deceased was bluish, which aroused suspicion. Consequently, the matter was reported to the Police. The Doctor who conducted the postmortem and issued the postmortem certificate categorically deposed that the death was due to the combined effect of the constriction of the neck and smothering. Therefore, since the 1st accused was present in the house at the relevant time when her husband’s death occurred, and as the death has been conclusively established to be homicidal in nature the burden lies on the 1st accused to provide a credible explanation as to how the death took place. 38. In Ramanand v. State of Himachal Pradesh, 1981 (1) SCC 511 , the Supreme Court observed as follows: “Perfect proof is seldom to be had in this imperfect world and absolute certainty is a myth.” The concept of circumstantial evidence arises because, in some cases, direct evidence would be lacking, and so the court has to rely on circumstantial evidence to decide upon the matter. The last seen theory is also rooted in this principle, for in certain cases of homicide, when there is no eyewitness account, the fact that the deceased was last seen alive in the company of the accused assumes much significance. According to this theory, if a person is last seen with the deceased just before his death or within a reasonable period prior thereto, and if the possibility of any other person intervening is ruled out, then a presumption can be drawn that the person who was last seen in the company of the deceased, is the author of the crime and thus the burden of proof shifts on him to negate the said presumption. 39. 39. In State of Goa v. Sanjay Thakran, 2007 (3) SCC 755 the Supreme Court observed that: “The circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out.” We have already found that Paul Varghese died while he was in the company of the 1st accused. Likewise, the incident in this case occurred within the confines of a house in the wee hours. It was in the early morning at 2.15 a.m., the deceased was found dead inside his bedroom. The 1st accused, being the wife of the deceased, who was very well present in the said house during that time, is bound to explain what transpired in this case, particularly when she is not having a case that she was not present in the said house during the relevant time. There is immediate proximity between the time when the deceased and the 1st accused were together and later when the deceased was found dead. Therefore, the 1st accused is burdened with a duty to provide a plausible explanation regarding the events surrounding the deceased’s death or their separation. Section 106 of the Indian Evidence Act mandates that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Therefore, it was imperative for the 1st accused to provide a convincing explanation regarding the events that transpired after the deceased was last seen alive in her company. Despite the said overwhelming circumstance, the 1st accused failed to offer any justifiable or convincing explanation about the incident that occurred inside the privacy of her bedroom in the wee hours. Therefore, we have no hesitation in holding that the proved circumstance that the deceased was alive last in the company of the deceased and the 1st accused failed to offer any explanation and to discharge the burden as spelt out under Section 106 of the Indian Evidence Act clearly points towards the guilt of the 1st accused. Therefore, we have no hesitation in holding that the proved circumstance that the deceased was alive last in the company of the deceased and the 1st accused failed to offer any explanation and to discharge the burden as spelt out under Section 106 of the Indian Evidence Act clearly points towards the guilt of the 1st accused. When the last seen circumstance is so convincing and reliable, there is no illegality in sustaining a conviction on the said circumstance alone. 40. However, reverting to the allegation against the 2nd accused, it is to be noted that he has already been acquitted by the trial court. Hence, the presumption of innocence, which is generally available to an accused, stands strengthened by an order of acquittal. It is equally pertinent to note that the legal yardsticks applicable to an appeal against acquittal are distinct from those applicable to an appeal against conviction. Ordinarily, an appellate court would not interfere with a judgment of acquittal unless it is demonstrated that the trial court’s view is perverse, manifestly illegal, or grossly unjust, and that the only possible conclusion on the basis of the evidence on record was that the accused was guilty of the offence alleged. Through a catena of judicial pronouncements, it is well settled that, if two views are reasonably possible on the basis of the evidence, and the trial court has taken one such view leading to acquittal, the appellate court would generally refrain from substituting its own view merely because it might have arrived at a different conclusion. However, this principle does not mean that the appellate court cannot reverse an erroneous acquittal. More specifically, when the appreciation of evidence by the trial court is patently erroneous or perverse or runs contrary to the settled principles of law, and when the evidence on record clearly establishes the guilt of the accused, leaving no room for any other plausible conclusion, the appellate court is well within its power to reverse the finding of acquittal and convict the accused. Keeping in mind the above, it cannot be said that the view taken by the trial court in acquitting the 2nd accused is either impossible or perverse. Hence, the order of acquittal passed in favour of the 2nd accused warrants no interference. 41. Keeping in mind the above, it cannot be said that the view taken by the trial court in acquitting the 2nd accused is either impossible or perverse. Hence, the order of acquittal passed in favour of the 2nd accused warrants no interference. 41. However, in view of the discussions made above, we confirm the finding of guilt, conviction, and sentence passed against the 1st accused in S.C. No.413/2014 on the file of the Additional Sessions Court, North Paravur. Resultantly, both the appeals fail and are accordingly dismissed.