AMBILI v. STATE OF KERALA
Case at a glance
Outcome
Dismissed
This Criminal Appeal is dismissed
Provisions considered
- Indian Penal Code, 1860 s. 302
- Code of Criminal Procedure, 1973 ss. 161, 313, 428, 432, 433
Key paragraphs
- Para 88. PW6 has a case that on that night he met the appellantand the appellant made an extra judicial confession that heapplied force on the neck of the deceased and she was lyingmotionless. On appreciation of the evidence of PW6, we find itnot safe to…
- Para 1212. A mere suspicion however strong, is not sufficient toprove the guilt. The honourable Supreme Court in Sharad's caseobserved:- This indicates the cardinal principle of criminaljurisprudence that a case can be said to be proved onlywhen there is certain and explicit evidence and no personcan…
Judgment
Crl. Appeal No. 2201 of 20092not answering when called. PW4 informed it to PW2. PW2along with PW3 went to the house and found that body of Girijawas lying on a mat and she is not responding to their enquiry.PWs.2 and 3 carried Girija to take her to a hospital. Before theyreached the road, Mohan another neighbour came there andexamined the body of Girija and disclosed that Girija is no more. The body of Girija was therefore taken to the house of PW2, themother. PW1 went to Venjaramoodu Police Station andfurnished Ext.P1, First Information Statement at 11 am on11.10.2007. PW11, the A.S.I recorded Ext.P1 and preparedExt.P1(a) FIR and registered the case. PW14, the Sub Inspector, as the Circle Inspector is away, took over the investigation. Hewent to the scene of occurrence, prepared Ext.P11 InquestReport and sent the body to the Medical College Hospital, Thiruvananthapuram for postmortem examination. PW8,Dr.Sreekumari the then Asst. Professor of Forensic Medicineconducted autopsy and prepared Ext.P10 postmortem certificate, certifying that Girija died due to the constriction force applied onher neck. PW12, the Sub Inspector of Police prepared Ext.P4-Scene Mahazar. He arrested the appellant on 19.10.2007 from Crl. Appeal No. 2201 of 20093the private bus stand Attingal. PW14, the Circle Inspector of Police took over the investigation and questioned the witnessesand submitted the final report. The learned Magistratecommitted the case to the Sessions Court.
The learned Additional Sessions Judge, when the casewas made over to him, framed charge for the offence under Section 302 of the Indian Penal Code. As the accused was incustody and did not engage a counsel, a defence counsel wasappointed to defend the appellant at the expense of the State. The appellant pleaded not guilty. Prosecution then examined 14witnesses and marked 15 Exhibits. After closing the prosecutionevidence, when the appellant was questioned under Section 313of the Criminal Procedure Code, he denied the prosecution caseand contended that he was not in the house on that night andhad gone for cable work to Adoor and he was arrested fromthere and was kept on illegal detention for 10 days before hisproduction before the Magistrate. Though appellant was calledupon to enter on his defence and adduce evidence, if any, he didnot adduce any evidence.
The learned Sessions Judge, on the evidence found the Crl. Appeal No. 2201 of 20094appellant guilty. He was convicted and sentenced toimprisonment for life and a fine of `10,000/-(Rupees tenthousand only) and in default rigorous imprisonment for threemonths. Aggrieved by the conviction and sentence, the appeal isfiled.
The learned Senior Counsel appearing for the appellantand the learned Public Prosecutor were heard. Argument of thelearned Senior Counsel is that, if the evidence of PW2, PW5 andPW6 is accepted, they had seen the appellant leaving the houseby about 1 am on that midnight and when the evidence of PW8prove that death of Girija should have been after 9 pm on10.10.2007 and before 9 am on 11.10.2007 and if Girija haddied before 1 am, PWs.2 and 3 would have easily found out that Girija is not alive due to the onset of rigor mortis and if so theywould not have taken Girija to the Hospital and as they wereunaware that Girija died, her death would have been onlysubsequent to 1 am and if that be so, the appellant could nothave been there at the scene of occurrence when the death wascaused. The learned counsel would argue that the evidence ofPW2 that she had seen the appellant on that night, as well as Crl.
Appeal No. 2201 of 20095the evidence of PW5 and PW6 that they had seen him returningfrom the house on that night cannot be believed. The argumentis that if PW2 had seen the deceased when he woke up and hadtaken the child for urination, she would not have disclosed to the Investigation Authority that she saw the appellant for the lasttime at 6 pm and she would have definitely disclosed that shehad seen the appellant on that midnight and hence the evidenceof PW2 cannot be believed. It was also argued that, if PW5 andPW6 had seen the deceased on that night as claimed by themand appellant had made an extra judicial confession to PW6,when the dead body of Girija was found in the house on the nextday morning, they would have definitely disclosed it and as theydid not disclose it, it is clear that their evidence is not true. Thelearned Senior Counsel also argued that when the prosecutionhas created false evidence by making PWs.5 and 6 deposefalsehood, it is clear that there was an attempt to fabricateevidence and in such circumstance the entire prosecution case isto be disbelieved.
The learned Senior counsel argued that evenif it is taken that appellant was there in the house on that night itwould only create a strong suspicion and that suspicion is not a Crl. Appeal No. 2201 of 20096substitute for proof of the ingredients of the offence andtherefore the appellant cannot be convicted. Relying on thedecision of the Supreme Court in Vikramjit Singh v. State of Punjab (2006(12) SCC 306, it was argued that when the broadprobabilities of the case are considered, at the worst it could bestated that there is a strong suspicion against the appellant. Butthat suspicion is not a substitute of proof and in the absence oflegal evidence, to prove the guilt, the conviction is notsustainable. Relying on the decision in Sharad v.State of Maharashtra (AIR 1984 SC 1622), the learned Senior Counselargued that when the proved circumstance do not conclusivelyestablish that it was the appellant who committed the murderand the established facts show that the appellant had left thehouse by about 1 am and as the death could have been causedsubsequent to 1 am, the proved circumstances are not sufficientto rule out the hypothesis of the innocence of the appellant andin such circumstances, the conviction is unsustainable.
The learned Public Prosecutor submitted thatprosecution established the circumstances which unerringlypoint out the guilt of the appellant and rule out the possibility Crl. Appeal No. 2201 of 20097of the innocence of the appellant. It was argued that theappellant admittedly the husband of the deceased was living withthe deceased. Evidence establish that the appellant used toreturn to the house every night, even if it was late and the factthat such an accused did not come back to the house, even afterthe postmortem examination of the deceased and also the factthat he did not participate in the funeral further establish thatappellant was responsible for the death of his wife Girija. Thelearned Public Prosecutor pointed out that the evidence of PWs.2and 3 that the appellant used to ill treat Girija and evenphysically manhandle her on the allegation of unchastity, wasnot even challenged in cross-examination and on the evidence itis clear that appellant was treating the wife cruelly and wasmanhandling her. It was also pointed out that there is no reasonto disbelieve the evidence of PW2 that she had seen the accusedduring midnight, when she had woken up and that evidence ofPW2 was corroborated by the evidence of PW4. The learnedPublic Prosecutor also argued that the evidence of PW5 and PW6also establish that appellant was there in the house on that nightwhen the deceased was strangulated and murdered and the fact Crl. Appeal No. 2201 of 20098that he left the house on that night and did not return even forthe funeral conclusively establish that the appellant was theculprit. The learned Public Prosecutor argued that whenappellant was the person who was last seen together with thedeceased, he has a duty to explain what transpired on that nightand instead of explaining what transpired on that night hepleaded alibi, which was not even attempted to be proved and insuch circumstances the conviction is perfectly legal.
The fact that the appellant and his wife Girija wereliving together in house No.PP3/2004, situated near to thehouse of PWs.1 to 3,5 and 6 is not disputed. The evidence ofPWs.2 and 3 that they reached the house on the morning of11.10.2007, as children informed that Girija is lying inside thehouse and is not answering to the enquires. Their evidenceprove that they together reached the house of the appellant andfound the body of Girija lying on a mat. This fact was notdisputed when they were cross-examined. The fact that PWs.2and 3 were unaware of the death of Girija and tried to take herbody to a hospital and before they reached the road Mohananother neighbour found that Girija had already breathed her Crl. Appeal No. 2201 of 20099last and therefore the body was taken to the house of PW2 andPW1 furnished Ext.P1 First Information Statement, recorded byPW11, the Assistant Sub Inspector were also not disputed.PW11, after conducting the inquest sent the body to the MedicalCollege Hospital for postmortem examination. The evidence ofPW8, Dr.Sreekumari, with Ext.P10 postmortem certificateconclusively establish that the death of Girija was due to theconstriction force applied on her neck. The existence of thecresentic abrasion on the right side of the jaw, 4 cm outer to themidline and 0.5cm above the jaw margin, in addition to theabrasions on the right side of the front of neck, further establishthat death was caused due to the constriction force applied onthe neck. That evidence of PW8 was also not challenged. Theevidence therefore exclusively establish that the death of Girijawas homicide.
The only question is whether the homicide was causedby the appellant. When the appellant is the husband and thedeceased is his wife and they were living together, if appellantwas there in the house on that night, he has definitely a duty toexplain what transpired on that night. True, Section 106 of the Crl. Appeal No. 2201 of 200910Evidence Act is not intended to relieve the prosecution of itsburden of proof beyond reasonable doubt. But the Section wouldapply to cases where prosecution succeeded in proving facts, from which a reasonable inference can be drawn regarding theexistence of certain other facts. If the accused by virtue of hisspecial knowledge regarding such facts fails to offer anyexplanation, which might drive the court to draw a differentconclusion, inference is to be drawn against the accused. Theevidence of PW1,PW2,PW4,PW5 and PW6 establish that theappellant was there in that house along with the deceased, onthat night.
PW1 deposed that he heard appellant and thedeceased talking from their house till he slept at about 8 pmon that night. That evidence of PW1 was not challenged. Evidence of PW2 is also that the accused was there in the houseon that day. The evidence of PW2 further shows that at aboutmidnight she woke up and while she opened the door, totake the child out of the house for urination, she found theappellant walking. She talked to him while he was walking. Herevidence is that after sometime she had seen PW4 walkingtowards the house of PW1. Then she enquired PW4 whether he Crl. Appeal No. 2201 of 200911had seen the appellant. PW4 replied that he had seen theappellant going towards the road. Evidence of PW2 that shefound PW4 and enquired about the appellant was fullycorroborated by the evidence of PW4. Evidence of PW4 establishthat he was staying with PW1 during that period and on thatnight, PW4 had gone to see a film at Thiruvananthapuram city.
He returned back by 1 am. Then he had seen the appellantgoing along the road from his house. That evidence of PW4corroborates the evidence of PW2. Though the learned Seniorcounsel argued that as PW2 admitted that she had given astatement to the Police that she had seen the appellant for thelast time at 6pm on the previous night, her subsequent evidencethat she found him during midnight cannot be true. We findthat PW7 was not asked whether she had disclosed the factum ofseeing the appellant during midnight. Such a question was noteven put to the Investigating Officer to establish anycontradiction. In such circumstances, on the evidence it cannotbe stated that PW2 have no case when her statement wasrecorded under Section 161 Cr.P.C that she had seen theappellant on the midnight. When the evidence of PW2 on that Crl. Appeal No. 2201 of 200912aspect is fully corroborated by evidence of PW4, we have nohesitation to hold that the evidence of PW2 that she had seen theappellant going from the house during midnight and PW4 hadseen him walking along the road is trustworthy and reliable.
PW6 has a case that on that night he met the appellantand the appellant made an extra judicial confession that heapplied force on the neck of the deceased and she was lyingmotionless. On appreciation of the evidence of PW6, we find itnot safe to rely on the evidence of PW6 that the appellant hadmade an extra judicial confession. But on that ground, wecannot agree with the submission that the evidence of PW2 and4 that they had seen the appellant on that night is to bedisbelieved.
Similar is the evidence of PW5. Though PW5 turnedhostile to the prosecution, her evidence also shows thatappellant used to quarrel with Girija and PW5 had seen Girija inthe evening of the previous day and at that time there was nomark on her face, which was found on the dead body by PW8, the Doctor as well as by PWs.1 to 4.
It is thus clear that appellant was there in the house Crl. Appeal No. 2201 of 200913along with the deceased on that night and he left the housebefore the morning, while the body of his wife was lying insidethe house. The appellant did not return to the house eitherbefore the body was taken for postmortem examination to the Medical College Hospital or thereafter. He did not participate inthe funeral. This conduct of the appellant is definitely a stronglink in the chain of circumstances. Similarly the case of theappellant when questioned under Section 313 of Code of Criminal Procedure and the stand taken while cross-examiningthe prosecution witnesses was that he was not there in the houseand had gone for cable work at Kundra. Though a plea of alibiwas taken, he did not even attempt to prove the case of alibi. Naturally he has to suffer the consequence. The false plea ofalibi is yet another link in the claim of circumstantial evidence.
The question is to whether these proved factsunerringly point out the guilt of the appellant are incompatiblewith the innocence of the appellant. The principles to befollowed in a case based on circumstantial evidence, are wellsettled. The golden principles constituting the Panchsheel ofproof of a case based on circumstantial evidence, as declared in Crl. Appeal No. 2201 of 200914Sharad's Case supra reads:-“ 1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that his Court indicated that thecircumstances concerned 'must or should' and not 'maybe' established. There is not only a grammatical but alegal distinction between 'may be proved' and must be orshould be proved' as was held by this Court in ShivajiSahebrao Bobade v. State of Maharashtra, (1973) 2 SCC793: AIR 1973 SC 2622) where the following observationswere made:
certainly, it is a primary principle that the accusedmust be and not merely may be guilty before a Court canconvict and the mental distance between 'may be' and'must be' long and divides vague conjectures from sureconclusions.
2) the facts so established should be consistentonly with the hypothesis of the guilt of the accusedthat is to say, they should not be explainable onany other hypothesis except that the accused isguilty. Crl. Appeal No. 2201 of 2009153) the circumstances should be of a conclusive natureand tendency.4) they should exclude every possible hypothesisexcept the one to be proved; and 5) there must be a chain of evidence so complete asnot to leave any reasonable ground for the conclusionconsistent with the innocence of the accused andmust show that in all human probability the act musthave been done by the accused. These five golden principles, if we may say soconstitute the panchsheel of the proof of a case based oncircumstantial evidence.”
A mere suspicion however strong, is not sufficient toprove the guilt. The honourable Supreme Court in Sharad's caseobserved:-
This indicates the cardinal principle of criminaljurisprudence that a case can be said to be proved onlywhen there is certain and explicit evidence and no personcan be convicted on pure moral conviction. Horry's case(supra)
was approved by this Court in Anant ChintamanLagu v. State of Bombay. (1960) 2 SCR 460: (AIR 1960 SC Crl. Appeal No. 2201 of 200916500). Lagu's case as also the principles enunciated by this Court in Hanumant's case (supra) have been uniformlyand consistently followed in all later decisions of this Courtwithout any single exception. To quote a few cases-Tufail's case (1969 (3)SCC 198) (supra), Ramgopal's case(AIR 1972 SC 656) (supra), Chandrakant Nyalchand Sethv. State of Bombay (Criminal Appeal No.120 of 1957decided on 19.2.1958). Dharambir Singh v.
State of Punjab (Criminal Appeal No.98 of 1958 decided on4.11.1958). There are a number of other cases wherealthough Hanumant's case has not been expressly noticedbut the same principles have been expounded andreiterated, as in Naseem Ahmed v. Delhi Administration,(1974)2 SCR 694(696): (AIR 1974 SC 691 at p.693).Mohan Lal Pangasa v. State of U.P., AIR 1974 SC 1144(1146), Shankarlal Gyarasilal Dixit v. State of Maharashtra, (1981)2 SCR 384 (390): (AIR 1981 SC 765 atp.767) and M.G.Agarwal v. State of Maharashtra, (1963) 2SCR 405(419): AIR 1963 SC 200 at p.206) a five JudgeBench decision.” The proved facts are to be appreciated in the light of thesettled principles. Crl. Appeal No. 2201 of 20091713. The evidence establish that appellant has doubt in thechastity of Girija and was ill treating her and even manhandlingher. Though the learned counsel vehemently argued that in viewof the evidence of PW8, Dr.Sreekumari, that death of Girijacould have been after 9 pm on 10.10.2007 and before 9 am on11.10.2007 and as the evidence of PWs.3 to 6 establish that theappellant left the house by 1 am, on that night , when the deathwas subsequent to 1 am, the appellant cannot be personresponsible for her death.
The argument is that as PWs.2 to 4did not realise that Girija had died earlier, her death would haveoccurred subsequent to 1 am and before 9 am. On the evidence, we cannot accept the submission. The evidence establish thatbefore 8 am, the children found the body of Girija inside thehouse. Though PW2 and PW3 could not realise that Girija hasalready breathed her last before they found her body, that is nota ground for holding that death was subsequent to 1 am. Theevidence of PW8 is only that the death could have been 6 to 18hours prior to 3 pm on 11.10.2007. The postmortemexamination was conducted at 3 pm on 11.10.2007. PW8 did notprovide any data to support her opinion on that aspect. Such a Crl. Appeal No. 2201 of 200918finding is not there in Ext.P10 certificate also. Hence, based onthat evidence, it cannot be found that death of Girija occuredsubsequent to 1 am as canvassed by the learned Senior Counsel.
Operative part
On appreciation of the entire proved circumstance of the case, itis absolutely clear that the proved circumstances, are consistentonly with the hypothesis of the guilt of the appellant. They areconclusive in nature and tendency and exclude every otherpossible hypothesis, except the one that the appellant committedthe murder. On the evidence we have no hesitation to hold thatthe appellant caused the death of Girija by applying constrictionforce on her neck on the night of 10.10.2007 and before themorning of 11.10.2007. None of the exemptions, provided under Section 300 is attracted. Hence, conviction of the appellant forthe offence under Section 302 of Indian Penal Code is perfectlylegal and correct. We confirm the conviction. The appellant wassentenced only to imprisonment for life and a fine of `10,000/-.We find no reason to interfere with the sentence. As the learnedSessions Judge omitted to grant set off, it is provided that theappellant is entitled to get set off, for the period he has been incustody in this case, as provided under Section 428 Cr.P.C Crl. Appeal No. 2201 of 200919subject to the orders of the appropriate authority under Section432/433 of the Code of Criminal Procedure. This Criminal Appeal is dismissed.M.Sasidharan Nambiar, JudgeP.Bhavadasan, Judge sj
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: This Criminal Appeal is dismissed
Which statutory provisions did this judgment involve?
Indian Penal Code, 1860 — s. 302; Code of Criminal Procedure, 1973 — ss. 161, 313, 428, 432, 433.
Which court decided this case, and when?
Kerala High Court, on 13 Jul 2012. The bench was P BHAVADASAN.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.