SURESH BABU v. STATE OF KERALA

3. P.W.1 laid Ext.P2 First Information Statement before the Nemom Police Station on the same day. P.W.13 recorded the First Information Statement furnished by P.W.1 and registered Ext.P12 F.I.R. P.W.12, the Sub Inspector of Police, Nemom Police Station, questioned the witnesses and recorded the statement of P.W.7. Investigation was taken over by P.W.15. He conducted inquest on the body of Mini Crl.Appeal.333/2009. 4 and prepared Ext.P14 report. He seized the articles found on the body of the deceased and also took cellophane tape print from various parts of the body. He prepared Ext.P9 scene mahazar and had seized certain articles found at the site of the incident. He recorded the statements of witnesses. Since he was convinced that offence under Sections 498A and 306 had been committed, he sent Ext.P16 report to the SDM Court for return of the records since initially the crime was registered for unnatural offence under Section 174 Cr.P.C. He states about the various acts done by him during investigation and specifically about cellophane tape prints taken by him from the rafter from which the sari was stated to have seen hung and also from the limbs of the deceased. Further investigation was done by P.W.14. During his investigation it was revealed that the offence under Section 302 I.P.C. has been committed and Crl.Appeal.333/2009. 5 therefore he submitted Ext.P13 report to the court seeking to delete Sections 498A and 306 I.P.C. and to incorporate Section 302 and 201 I.P.C.. He completed the investigation and laid charge before court.

4. Judicial First Class Magistrate, Neyyattinkara, before whom final report was laid, took cognizance of the offence. On appearance of the accused before court, all formalities were completed. Finding that the case is exclusively triable by a Court of Sessions, the learned Magistrate committed the case to Sessions Court, Thiruvananthapuram. The said court made over the case to the II Additional Sessions Court for trial and disposal.

5. Charge was framed by the said court for offences under Sections 302 and 201 I.P.C., to which the accused pleaded not guilty and claimed to be tried. The prosecution examined P.Ws.1 to 16 and had Exts.P1 to P18 Crl.Appeal.333/2009. 6 marked. M.Os. 1 to 10 were identified and marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. On an evaluation of the evidence, the trial court came to the conclusion that the accused was guilty of the offence and convicted and sentenced him.

6. Learned counsel appearing for the appellant challenged the finding of the trial court regarding the guilt of the accused. It was pointed out that there was no evidence to show that the death was a homicidal one and in the absence of any specific finding in that regard, the accused could not be held guilty of the offence charged against him. It was pointed out that the charge against the accused was that he had committed the murder of his wife by Crl.Appeal.333/2009. 7 strangulating her with a ligature. Surprisingly enough, the ligature was not identified nor was it shown to the Doctor, who conducted the postmortem, to ascertain whether the said ligature was used to commit the offence. According to the learned counsel, the finding of guilt has been based on surmises and conjectures and there was absolutely no evidence at all in this case to show that it was the accused who had committed the offence. The lower court has mainly relied on the last seen theory and also on the fact that the accused had not offered any explanation in his defence which would go a long way, according to the lower court, in finding his complicity in the crime. This, according to the learned counsel, was quite unwarranted since as long as the prosecution has not shown that the death was a homicidal one, the accused was not bound to offer any explanation. Learned counsel went on to say that the lower court had Crl.Appeal.333/2009. 8 gone wrong in relying on the evidence of P.Ws.2 and 3, which, according to the learned counsel, did not support the prosecution case at all. Learned counsel also drew the attention of this court to the medical evidence and pointed out that P.W.6, the doctor who conducted the postmortem was not definite as to the cause of death except that it was done to constriction force on the neck and it is clear from her evidence that no ligature was shown to her which could have been used to commit the offence. According to the learned counsel, there is a reasonable doubt as to the cause of death and if that be so, the benefit should go to the accused.

7. Learned Public Prosecutor on the other hand chose to support the finding of the trial court on the ground that going by the evidence on record, the accused was last seen in the company of the deceased and he therefore owes an explanation as to what had transpired which Crl.Appeal.333/2009. 9 resulted in the death of his wife Mini. He offered no explanation and that is sufficient to show his guilt. Learned Public Prosecutor also went on to point out that the conduct of the accused after the incident would also reveal that he was involved in the incident. He did not take part in the funeral of his wife which is quite unnatural and unusual unless he was guilty. The postmortem report showed that force has been applied on the neck and that is the cause of death. Going by the evidence in the case, it is clear that the accused and the deceased were alone in the house when the incident occurred and under those circumstances going by the decision relied on by the lower court the accused owes a duty to offer an explanation as to how the death had occurred. In the absence of any satisfactory explanation, the court below was justified in coming to the conclusion that the deceased met with death at the hands of the accused. Crl.Appeal.333/2009. 10

8. The trial court seems to have been impressed by the following facts: (i) The evidence of P.Ws.2 and 3 are in consonance with the prosecution story. (ii) The accused was last seen in the company of the deceased. (iii) The accused prevented P.W.5 from accompanying him to the hospital. (iv) The accused did not take part in the funeral of his wife. (v) The accused offered no explanation as to the cause of death of his wife.

9. Relying on the decision reported in Thirumukh Marotti Kirkan v. State of Maharashtra (JT 2006 (9) SC 50), the lower court came to the conclusion that the circumstantial evidence adduced by the prosecution is Crl.Appeal.333/2009. 11 sufficient to show that the accused was the person responsible for the death of his wife.

10. It is true that P.W.1 has stated that while she and her husband had left for job on the date of the incident and the grandchildren had gone to the school, the accused and the deceased were alone at home. She further says about the information she received about the sickness of her daughter. When she came home, she had been informed that her daughter had been removed to the hospital. She further says that by 7'o clock when no information was received, she along with her grandchild hired an auto and went to the hospital and on the way they met Vishnu, who told them that the daughter of P.W.1 is no more. In court, she deposed that she did not know the reason or the cause of the death of her daughter. In court, she did not support the prosecution case at all. Crl.Appeal.333/2009. 12

11. The evidence of P.W.2 is to the effect that when he went to school in the morning, his parents were alone in the house. He returned by 4.30 p.m. in the evening and then his parents were at home. At that time, his mother was engaged in cooking and he after having food went for tuition. At that time, his father, who was sleeping woke up and asked P.W.2 when he had returned home. After answering his father, P.W.2 went for his tuition. This witness would say that when he did not study properly, there used to be quarrel between his father and mother. When he returned home by 6.30 in the evening, his parents were not at home and his grandmother told him that since his mother had fallen ill, she had been taken to the hospital. He would further say that by about 7.30 p.m. he along with P.W.1 went to the hospital and on the way they met a person who was residing nearby and he asked them to return home. This is Crl.Appeal.333/2009. 13 all this witness says about the case. He does not say anything else in his evidence.

12. P.W.3 is the daughter of the deceased and the accused. She says that when she returned along with her sister at about 4.30 p.m., they found their mother lying on the ground and their father sprinkling water on her face. Her mother did not regain conscience. She then disowned many of her statements to the police.

13. P.W.10 is the father of the deceased. Going by his evidence he went for his job in the morning on the date of the incident and returned only by night. When he went for his job, he says that his daughter and the accused were at home. He does not know the cause of the death of his daughter. He does not deny that there used to be quarrel between the accused and the deceased. Crl.Appeal.333/2009. 14

14. A reading of the above evidence do not indicate that there was any frequent quarrel between the deceased and the accused as sought to be projected by the prosecution. Of course, P.W.2 says that when he was not very keen about his studies, there used to be quarrel between his parents. But there is nothing in the evidence of P.Ws.1, 2, 3 and 10 to show that the accused, after having come home drunk used to pick up quarrels with his wife or to ill-treat her. It is true that all the above witnesses say that when they left the house, the accused and the deceased were alone at home.

15. However, the evidence of P.Ws.2 and 3 do not go together. According to P.W.2 when he returned home at about 4.30 p.m. his mother was seen cooking and his father was sleeping. According to P.W.3 when she and her sister returned home at about 4 p.m. their mother was seen lying Crl.Appeal.333/2009. 15 on the road and her father sprinkling water on her face. There are contradictions and inconsistencies in the evidence of P.Ws.2 and 3.

16. Even though the trial court has raised an issue regarding the cause of death, it had not answered the same in the proper manner. In the context of the case, the medical evidence adduced by the prosecution assumes considerable importance for the simple reason that one of the main contentions taken by the appellant is that there is no legal proof or evidence to show that the death of the daughter of P.W.1 was homicidal.

17. At the outset itself, it may be stated that there is no definite finding by the court below whether the death is homicidal or suicidal. Ext.P7 is the postmortem certificate. It shows two injuries as follows: Crl.Appeal.333/2009. 16 “Injuries (Antemortem):

1. Contusion 1x1x0.3 cm, on the top of head 9 cm above the rook of right ear.

2. Abrasion 17.5x3 to 7 cm broad, on the front, tapering towards the left side, horizontally placed on the left side of neck, the inner end in the midline, 5 cm below chin (6.5 cm broad) 5 cm below left ear (3cm broad). Flap dissection of neck was done under a bloodless field. The subcutaneous tissue underneath appeared normal. Contusion 6x0.5x0.5cm on the outer aspect of clavicular head of left sternomastoid. Infiltration seen on the lower attachment of clavicular head of left sternomastoid. Fracture of thyroid cartilage 0.6cm long, vertical

0.5cm to the left of midline and just above the lower border. Contusion 1) 3.5x1.5x0.5cm, on the left side of neck, overlying the left border of lamina of thyroid car 2) 1x0.5x0.3cm left pyriform fossa 3) 1x0.5x0.5cm on the thyrohyoid muscle on the right Crl.Appeal.333/2009. 17 side. Infiltration of blood was seen along the back wall of left carotid artery. Brain congested and oedematous. Air passages congested and contained blood stained frothy fluid. Lungs congested and oedematous. Stomach contained soft rice and other unidentifiable food particles having no unusual smell, mucosa congested, submucosal haemorrhages present. Uterus and appendages were normal. Uterine cavity was empty. Distal ends of fallopian tubes missing. Urinary bladder was empty, its mucosa was normal. All other internal organs were congested, otherwise normal. Viscera, sample of blood, vaginal swab and smear preserved and sent for chemical analysis. Blood group was tested at the blood bank of Medical College Hospital, Thiruvananthapuram was found as 'AB' Rh positive.” The cause of death is shown as 'death due to constriction force on the neck.' Crl.Appeal.333/2009. 18

18. The prosecution case is that the accused had used a ligature to strangulate the deceased. One may now have a look at the evidence of P.W.6, the Doctor who conducted autopsy. After having narrated her findings which are disclosed in the postmortem certificate she deposed as follows: “Internal findings on the neck shows possibility of ligature strangulation. There is poor possibilities of death by ligature strangulation as well as strangulation by hanging. Internal findings were suggestive of a ligature strangulation rather than hanging.” In cross examination she would say that no ligature was shown to her by the investigating officer which could have been used to commit the crime. A reading of the evidence of P.W.6 does not lead to the conclusion that any ligature as Crl.Appeal.333/2009. 19 such has been used or any ligature as such is shown to her. In chief examination, she deposed that there is poor possibility of death by ligature strangulation or strangulation by hanging. At any rate, there is no case that the death was due to throttling.

19. Learned counsel appearing for the appellant referred to Medical Jurisprudence by Modi and pointed out that if it is a case of ligature strangulation, there will be typical symptoms which are conspicuously absent in this case. Learned counsel specifically referred to Modi's Medical Jurisprudence 23rd Edition at page 583 where the difference between hanging and strangulation are shown in tabulated form. Learned counsel also referred to page 577 wherein if a ligature is used the marks that could usually be seen on the neck is seen referred to. Crl.Appeal.333/2009. 20

20. HWV Cox in Medical Jurisprudence and Toxicology, 7th Edition in page 361 also tabulates the difference between hanging and strangulation. The author also deals with the nature of marks that could be seen in the case of strangulation by ligature. Prof. A.S.Deoskar in his Medical Jurisprudence, Toxicology and Forensic Science for Class Room, Investigation and Court Room with Case Laws. 1st Reprint at page 107 deals with ligature strangulation. The author pointed out that in ligature strangulation, the pressure on the neck is applied by a constricting band tightened by force other than body weight. The author then narrates the normal external findings and also the possible internal findings.

21. It is surprising to note that P.W.6 was not asked as to what sort of ligature could have been used to commit the offence. The only ligature recovered from the Crl.Appeal.333/2009. 21 site of the offence is M.O.2 Sari which was found on a Sofa when the investigating officer visited the scene of occurrence. The Forensic Science Laboratory report shows that the cellophane tape prints collected by the investigating officer showed no fibres also. The FSL report shows that holding of M.O.2 for about five minutes resulted in fibres being transmitted to the palms. The prosecution has no case that M.O.2 Sari was used to commit the offence.

22. Going by the medical literature, the symptoms in the case of strangulation by ligature like bleeding from the nose, mouth and ecchymoses and various other marks are conspicuously absent in Ext.P7 postmortem certificate. On the other hand there are indications in the postmortem certificate which would indicate the symptoms of hanging also. The marks shown, going by Ext.P7 and the evidence of P.W.6 do not tally with the marks found in ligature Crl.Appeal.333/2009. 22 strangulation as disclosed by the authors in various texts referred to. It is true that in Ext.P7 postmortem certificate it is mentioned that the death was due to constriction force applied on the neck. But surprisingly enough there is no suggestion or no attempt to extract from P.W.6 as to in what possible manner the force could have been applied. As already noticed, the evidence of P.W.6 is not conclusive with regard to the use of ligature for causing the death of the deceased. Moreover, in Ext.P7 itself it has been stated that no ligature was shown to the Doctor. P.W.6 confirms this in her evidence before court. The result is that the prosecution has not identified the ligature with which the death is alleged to have been caused by the accused.

23. On going through the decision relied on by the lower court, it can be noticed that in the said case a false reason was given for the death of the deceased. On a Crl.Appeal.333/2009. 23 reading of the decision reported in Thirumukh Marotti Kirkan v. State of Maharashtra (JT 2006 (9) SC 50) it can be seen that after having caused the death of his wife, the husband and inmates of the house represented that the deceased died due to snake bite. In paragraph 7 of the judgment the findings in the postmortem certificate are seen extracted. P.W.10, the doctor, who conducted postmortem in the said case in his evidence has stated that death was due to compression of neck. His evidence further showed that the injuries present on the neck of the deceased could be caused if the throat is pressed with a shoe with force and the victim is pulled at the opposite direction by holding her hands. The circumstances which went against the accused are narrated in paragraph 9 of the judgment. It was in the above context that the Apex court held that in the circumstances the accused owed a duty to offer an Crl.Appeal.333/2009. 24 explanation since he was seen last in the company of his wife before her death.

24. In the decision relied on by the lower court, it is true that Section 106 of the Evidence Act has been invoked. But on a reading of the decision referred to above, it is clear that in the facts and circumstances of the said case, the burden shifts to the accused to offer proper explanation. It is well settled that Section 106 does not relieve prosecution of its burden to prove the case against the accused beyond reasonable doubt. It is true that in cases where crimes are committed with closed doors, it is difficult for the prosecution to produce direct evidence regarding the nature of the act committed which might have caused the death of the victim concerned. In such circumstances the person who is last seen with the deceased has a duty to explain as to how the death had Crl.Appeal.333/2009. 25 occurred. But in all those cases where Section 106 was invoked, there was conclusive proof to show that the victim had been murdered and that just prior to the incident which might have caused the death of the deceased, the deceased is seen in the company of the accused.

25. In most of the cases where the death of the wife is caused by the husband, the husband was last seen in the company of his wife and there was evidence to show that there was discord between the husband and wife and there used to be frequent quarrel or there was a total dislike for the wife or there were other motives proved to commit the murder of the wife.

26. In the case on hand, except for the fact that there is some evidence to show that the accused was last seen in the company of his wife, there is nothing more. If one goes by the evidence of P.W.3 when she and her sister Crl.Appeal.333/2009. 26 returned home, her father was seen attending to her mother and she was taken to the hospital by the accused. It is surprising to note that there was no attempt from the side of the prosecution to show whether by that time the deceased and the accused reached the hospital where the deceased had died or what was the state of affairs when the deceased reached the hospital. No records from the hospital where the deceased was first taken were sought to be collected or produced before the court with the result that there is no evidence to show as to what actually was the state of affairs when the deceased reached the hospital.

27. As already noticed, there is a reasonable doubt created regarding the cause of death. Of course, one cannot dispute that it is due to the constriction force used on the neck that the death had occurred. But there is no proof regarding the manner in which the said force had been Crl.Appeal.333/2009. 27 applied. There was no attempt from the side of the prosecution either to produce any evidence or to extract necessary information from P.W.6 as to in what possible manner the force could have been used. The mere fact that the accused did not take part in the funeral or that he was last seen in the company of his wife may not by itself is sufficient to fasten culpability on him.

28. At the risk of repetition, one may notice that except for the fact that the accused was seen last in the company of the deceased, the prosecution received no help whatsoever from the evidence of P.Ws.1, 2, 3 and 10. It is also significant to notice that initially the offences charged against the accused were under Sections 498A and 306. The evidence of P.Ws.1, 2, 3 and 10 do not indicate that there used to be ill-treatment of the deceased by the accused and the life of the deceased with the accused was Crl.Appeal.333/2009. 28 unbearable or intolerable. Of course P.Ws.2 and 3 do speak about occasional quarrel between the couple. But they appear to be nothing more than ordinary domestic quarrels.

29. Since the prosecution has not been able to establish the manner in which the death had occurred and since there is a reasonable suspicion regarding that aspect, the benefit should go to the accused.

30. This court is therefore unable to accept the finding of the court below that the death of deceased Mini was caused by ligature strangulation by the accused beyond reasonable doubt. It is felt that the accused is entitled to benefit of doubt. In the result, this appeal is allowed, the conviction and sentence passed by the court below against the accused for the offence punishable under Sections 302 and 201 I.P.C. are set aside and he is held not guilty of the Crl.Appeal.333/2009. 29 offence alleged against him. He shall be released forthwith, if he is in custody unless wanted in any other case. M. SASIDHARAN NAMBIAR, JUDGE. P. BHAVADASAN, JUDGE. sb.