IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL.A.No. 1465 of 2006()
1. SIVAN, S/O. PONNAYYAN, AGED 29 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY PUBLIC
... Respondent
For Petitioner :SRI.A.T.ANILKUMAR
For Respondent : No Appearance
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :31/03/2010
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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Crl.Appeal No.1465 of 2006
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Dated this the 31st day of March, 2010
JUDGMENT
BASANT, J.
i) Is the circumstance leading to the allegation
of patricide against the appellant established by
satisfactory evidence?
ii) Can the circumstances established lead a
prudent mind to a safe conclusion of guilt against
the appellant?
iii) Is the appellant entitled to the benefit of doubt?
iv) Did the court below commit the error of
importing extraneous information, which was
not legally placed before the court in the course
of trial, while attempting to adjudicate the
guilt of the appellant?
These are the questions raised by Ms.V.Shylaja, learned
counsel for the appellant in her attempt to assail the impugned
verdict of guilt, conviction and sentence against the appellant.
Crl.Appeal No.1465 of 2006 2
2. The appellant was the sole accused who faced
indictment. The crux of the charge against him is that the
accused on the night of 4/9/2002 at about 10.45 p.m.caused the
death of his father by ligature strangulation with MO.2 towel in
the workshop where PW3 was working as a mechanic. The
alleged motive is the desperate yearning of the appellant to
somehow get his marriage, which was scheduled to take place on
8/9/2002, postponed.
3. The investigation into this crime commenced on the basis
of Ext.P1(a)F.I.R. registered on the basis of Ext.P1 F.I.S. lodged
by PW1, another son of the deceased, at 7.15 a.m. on 5/9/2002.
The crime was registered under the caption “unnatural death”
under Section 174 Cr.P.C. After completing the investigation, it
was PW13, who filed the final report/charge sheet against the
appellant alleging the commission of the offence punishable
under Section 302 I.P.C.
4. Consequent to committal of the case to the Sessions
Court, cognizance was taken by the Sessions Court. The
accused denied the offence alleged against him and thereupon
the prosecution examined PWs. 1 to 15 and proved Exts.P1 to
P12. MOs.1 to 17 were also marked. The accused took up a
Crl.Appeal No.1465 of 2006 3
defence of total denial. According to him, he had nothing to do
with the unfortunate death of his father. No defence evidence
was adduced – oral or documentary.
5. The learned Sessions Judge, on an anxious consideration
of all the relevant inputs, came to the conclusion that the
prosecution has succeeded in establishing all ingredients of the
offence punishable under Section 302 I.P.C. against the
appellant. Accordingly, the learned Judge proceeded to pass the
impugned verdict of guilty, conviction and sentence. The
sentence of imprisonment for life was imposed on the appellant.
6. Before us, the learned counsel for the appellant
Ms.V.Shylaja and the learned Public Prosecutor Mr.Noble
Mathew have advanced their arguments.
7. The learned counsel for the appellant assails the
impugned verdict of guilt, conviction and sentence on the four
grounds referred to already in paragraph 1 of this judgment.
8. An appellate judgment is and must be read in
continuation of the judgment of the trial court. The trial court
has adverted to all the relevant pieces of oral and documentary
evidence in the impugned judgment. In the impugned judgment,
the trial court has also referred to all matters including charge
Crl.Appeal No.1465 of 2006 4
levelled against the accused as also the examination of the
accused under Section 313 Cr.P.C. It is not necessary, in these
circumstances, for us to attempt to re-narrate such pieces of
evidence and matters that were placed before the court below.
Suffice it to say that the learned counsel for the appellant and
the learned Public Prosecutor have taken us meticulously
through the oral evidence of PWs.1 to 15 and the documentary
evidence, Exts.P1 to P12. Reference to Mos.1 to 17 have also
been made. Our attention has also been drawn to the final
report filed by the police, the charge framed by the court as also
the answers given by the accused in the course of 313
examination .
9. We must at the outset note that this is a case where the
indictment rests solely on circumstantial evidence. The
prosecution has not been able to adduce any direct evidence to
implicate the appellant herein in the trial. They chose to rely on
certain circumstances, which according to them reveal the
complicity of the appellant.
10. It is unnecessary to refer to the specific precedents. It
is trite beyond controversy that in a case resting solely on
circumstantial evidence, the burden is heavy on the shoulders of
Crl.Appeal No.1465 of 2006 5
the prosecution to prove its case beyond reasonable doubt. In a
case of circumstantial evidence, the circumstances must be
established by cogent and satisfactory evidence. Such
circumstances must be strong links in the chain of
circumstances. Together the links must constitute a strong
chain which unerringly points to the guilt of the accused. Such
chain of circumstances must effectively rule out any possible
hypothesis of innocence of the accused. Then and only then can
an accused be found to be guilty of such indictment in a criminal
prosecution.
11. It is not the number of links that matters. It is the
conclusiveness of the inference on the basis of the links in the
chain, that is of crucial significance. Each of such links may
throw open several possibilities and probabilities but what the
court has to consider is the possibilities and probabilities thrown
open after the links form a strong chain. The question is
whether the links together – we mean, the chain, proves the
indictment against the accused or whether it leaves behind scope
for any reasonable doubt. Each link by itself may throw open
several possibilities and probabilities. Benefit of doubt is not to
be conceded on the basis of such possibilities and probabilities.
Crl.Appeal No.1465 of 2006 6
12. Having reminded ourselves of the law relating to
proof of an indictment on the basis of circumstantial evidence,
we shall now proceed to narrate the circumstances which,
according to the learned Prosecutor Shri Noble Mathew, are
made available before the court. We do include some of the
circumstances relied on by him, though there is no material to
assume that the prosecution had relied on any such
circumstances before the court below. Some of those
circumstances have not been accepted by the court below also.
The circumstances are :
1)Motive, which the appellant allegedly entertained
against his father.
2)The fact that the deceased – the father of the
appellant had died on account of ligature
strangulation on the night of 4/9/2002.
3)That the death of the deceased occurred in the
workshop where PW3 is a mechanic and the body of
the deceased was found near that workshop – a little
(100 – 150 metres.) away from the workshop.
Crl.Appeal No.1465 of 2006 7
4) That the appellant and the deceased – father and
son, were seen together by PW1 and PW14 at
about 5 p.m. on that day.
5)PW4, a Police Constable on night patrol duty had
allegedly seen the appellant at about 1.30 a.m. on
5/9/2002 on the public road under circumstances
which generated dissatisfaction in the mind of PW4.
6. There was grease (black) on the clothes, MO.1
series, which the accused was wearing on that
night.
7. The accused, the eldest son of the deceased, did
not participate enthusiastically in the last rites and
rituals which had to be performed consequent to the
death of the deceased, his father.
13. We shall now proceed to consider the seven
circumstances on which the prosecution now wants to place
reliance on. We shall initially consider whether these
circumstances have been established satisfactorily. We shall
later consider whether the proved circumstances are sufficient
Crl.Appeal No.1465 of 2006 8
to generate a safe satisfaction about the guilt of the appellant in
the mind of the court.
14. Coming to the first circumstance, the appellant is the
son of the deceased. The deceased was aged about 60 years.
The appellant was aged about 25 years. The mother of the
appellant, i.e. wife of the deceased had left the deceased and her
children and had allegedly gone away about 15 years back. PW1
is the younger brother of the appellant. The deceased had only
those two male children. PW1 had already got married. He
along with his wife, PW2 – they at the relevant time are aged
about 23 years and 20 years and were residing together in a
separate house. The younger brother appears to have married
earlier than the appellant herein. After the marriage of PWs.1
and 2, it appears that the deceased used to sleep in the house of
his sister and the appellant used to sleep in the shop where he
was working, leaving PWs. 1 and 2 in the house. The marriage
of the appellant had been fixed. It was to take place on
8/9/2002. The appellant along with the deceased was going
round to invite people for the wedding. Even on 4/9/2002, the
evidence of the prosecution witnesses and the very case of the
prosecution is that the appellant along with the deceased had
Crl.Appeal No.1465 of 2006 9
gone to invite the paternal grand-father of the appellant for the
wedding. There is practically no other or better evidence to
indicate or even remotely suggest any strain in the relationship
between the accused and the deceased. The prosecution sets up
a case that the appellant was hard pressed for money. He was
not able to find/raise requisite resources necessary for his
marriage, which was to take place on 8/9/2002. PWs.1 and 2
have broadly indicated the attempts of the appellant to raise
money for performance of his marriage. According to them, he
was hard pressed for money. They have no case that the
appellant had discussed the shortage of cash for the marriage
with them. They have no case that they were in any way
involved in the attempt to raise the amount for the marriage of
the appellant which was scheduled to take place on 8/9/2002.
However, it was the general impression of PWs.1 and 2 that the
gold ornaments have not been purchased and necessary funds
have not been raised for the solemnisation of marriage of the
appellant.
15. From these circumstances, the prosecution wants the
court to assume that there was motive for the appellant to do
away with his father and the ingenious explanation is that the
Crl.Appeal No.1465 of 2006 10
appellant, who had not obtained sufficient money to conduct his
marriage on 8/9/2002, wanted a postponement of his marriage.
To facilitate that – such postponement, the only method which he
could devise was to do away with his father so that the death of
his father would afford sufficient reason/justification for the
postponement of the marriage.
16. To say the least, the theory is bizarre. The learned
counsel for the appellant submits that the imagination of the
investigator is running wild. There is absolutely no evidence
even to remotely indicate that the appellant, whose younger
brother had already got married, had made any attempt to get
the marriage postponed. There is no case for any witness that
the appellant had entertained such a secret desire. At any rate,
the desire, if any, had not been manifested and no one has a case
that there was any indication of such desire of the appellant to
get his own marriage postponed. The court below appears to
have thought that the working of a human mind may be
inscrutable and that if really the accused was hard pressed for
money and he faced the prospect of humiliation before his
prospective bride and people of the locality he may have
Crl.Appeal No.1465 of 2006 11
entertained the desire to do away with his father to enable him
to make use of that circumstance to get his marriage postponed.
17. Except surmises and conjectures, we find absolutely
no tangible evidence which can suggest that the appellant did
entertain such a motive or desire. The appellant is the son of
the deceased. Going by all available indications, there is
nothing to even remotely indicate that he entertained any
motive/animus against his father or that he was planning to get
his marriage postponed for some reason. The theory that he was
waiting to invent reasons to justify postponement of his marriage
and he found that death of his father would be a convincing
reason to postpone his marriage, though suggested by the
prosecution,has no legs to stand on. Even though, this
circumstance has been heavily relied on by the prosecution and
accepted by the learned Judge to a certain extent, we are of the
opinion that this circumstance has not been proved satisfactorily.
There is not a semblance of evidence from relative witnesses,
PWs.1 and 2 or any other to suggest that the accused did want to
get his marriage postponed to any later date to facilitate raising
of money to meet expenses of his marriage. The accused, it
appears, had taken a stand in the course of trial that his
Crl.Appeal No.1465 of 2006 12
marriage had not been fixed also. The evidence of PWs.1 and 2
is sufficient to conclude that the marriage of the appellant was
to take place on 8/9/2002. But we hold that there is absolutely
nothing to indicate that the appellant wanted his marriage to be
postponed and did ever entertain a desire to (and contemplate)
do away his father to facilitate postponement of the marriage.
This circumstance is not proved satisfactorily at all.
18. The second circumstance stands established
convincingly. The inquest report prepared by PW15 to which
PW5 is an attester as also the evidence of PW11, the Doctor who
conducted postmortem examination and issued Ext.P6 and
Ext.P8 postmortem certificates as also the oral evidence of PW12
and Ext.P7 report on the basis of which PW11 issued Ext.P8 do
all clearly show that the deceased had died on account of
ligature strangulation on the night of 4/9/2002. Not a semblance
of doubt is left in our mind about this circumstance. We reckon
this circumstance as proved satisfactorily.
19. The third circumstance relied on by the prosecution is
that the death of the deceased must have taken place in the
workshop of PW3 and the body of the deceased must have been
removed from the workshop to the place where it was found
Crl.Appeal No.1465 of 2006 13
lying – at a distance of about 100-150 metres away from the
workshop by someone. We have evidence to indicate that some
incident had taken place at the workshop where PW3 was a
mechanic. PW3 was not available in the workshop during that
night. Evidence available from the scene mahazar(Ext.P4) as
also the inquest report(Ext.P3) suggest that the workshop was
not kept under lock and key during the night. It appears to be a
small workshop activity where three wheelers were repaired. It
was a thatched shed and the evidence unmistakably conveys that
access into that workshop was available for any one during the
night.
20. That a violent incident had taken place inside the said
workshop is eloquently revealed from the factual perceptions
made by the Investigating Officer at the scene of the crime.
Blood marks were there inside the workshop. The dead body
was found at a place near the workshop. Though there are no
significant external bleeding injuries on the person of the
deceased, there is evidence to show that death occurred due to
ligature strangulation. The possibility of the incident having
taken place inside the workshop is certainly indicated and
suggested by the presence of the blood marks at the scene. Of
Crl.Appeal No.1465 of 2006 14
course it is true that we are unable to find any specific
explanation as to why the body was carried by the miscreant
(whoever he be) from the workshop to a place outside the
workshop if as a matter of fact the murder had taken place inside
the workshop. The court below had adverted to that aspect. The
court was not able to find any positive circumstances to explain
the presence of the dead body at a place away from the
workshop within which indications suggest that the murder must
have taken place. The identification of the precise spot of
occurrence does not appear to be very crucial while considering
this third circumstance relied on by the prosecution. We are
satisfied that the conclusion is safe that the deceased must have
suffered death at or near the workshop. We are unable to
precisely locate whether the murder was caused inside the
workshop and whether the incident had commenced inside the
workshop, but had continued till the place where the dead body
was found. It is also impossible to precisely ascertain whether
the body was removed to the place where it was found by the
miscreants whoever he be from the workshop. Suffice it to say
that we are satisfied that the death of the deceased on account of
ligature strangulation must have taken place at/near the
Crl.Appeal No.1465 of 2006 15
workshop/the place where the dead body was found. This third
circumstance is answered in favour of the prosecution to the
above extent.
21. The fourth circumstance relied on by the prosecution
is that the appellant and the deceased were seen together. PWs
1 and 14 deposed that they had seen the appellant and the
deceased together at about 5 p.m on that evening. It is the
undisputed case that the deceased along with the appellant had
gone to the house of the grandfather of the appellant to extend
invitation for the wedding. There is nothing to show that the
grandfather is alive or that he had met the accused and the
deceased on that day. Seeing the father and son together at 5
p.m, when death must have taken place, according to the
prosecution, late in the night at about 10.45 p.m, cannot
certainly be reckoned as a very important or crucial
circumstance. Moreover the evidence shows that the deceased
and the appellant had returned from the house of the
grandfather and thereafter the appellant had gone to the house
of PW1 and PW2 at about 10 p.m as stated by PW1 and PW2. It
is the common case that the deceased sleeps at the house of his
sister and the appellant sleeps at his place of work. Even though
Crl.Appeal No.1465 of 2006 16
they were seen together at 5 p.m, at 10 p.m when PW1 and PW2
saw the appellant, the deceased was not available with him.
According to the prosecution the deceased was alive at that time.
Moreover, they were not residing together at any place and in
these circumstances the last seen theory cannot have any direct
application to the facts of this case. That the appellant and the
deceased were found together at about 5 p.m in the evening by
PWs 1 and 14 cannot, in any view of the matter, be reckoned as a
relevant incriminating circumstance, in the facts of this case
where death had taken place admittedly after 10 p.m. This
circumstance of PWs 1 and 14 having seen the appellant and the
deceased together at about 5 p.m is accepted. But we are of the
opinion that the value of this circumstance as an incriminating
circumstance against the accused is not much.
22. The fifth circumstance relied on by the prosecution is
that PW4, a police constable on night patrol duty, had seen the
appellant on the public road at about 1.30 a.m on 05.09.2002
(the night of 04.09.2002). According to the prosecution by the
time PW4 saw the appellant at that odd hour, the murder of the
deceased must already have taken place. Except the oral
evidence of PW4, there is nothing tangible to support the version
Crl.Appeal No.1465 of 2006 17
of PW4. According to PW4, another police constable was also
available with him on duty when he intercepted the appellant on
suspicion. The other police constable has not been examined. No
test identification parade has been conducted. Though it is
asserted that PW4 had made a record (noting) of the details of
the appellant in a book/register maintained by him, such register
is not placed before court at all. In these circumstances, the
court below did not believe PW4 and did not choose to accept
and act upon his evidence. If this evidence were proved,
certainly that would have been a relevant circumstance though
the value to be attached to that circumstance as a circumstance
incriminating the appellant for the offence of murder will have to
be considered in depth. But the fact remains that the court
below chose not to accept and act upon the oral evidence of
PW4. The only question now is whether we must take a different
view on the question. We are also of the opinion that the trial
court, which had the advantage of seeing the witness (PW4)
perform in the witness stand, having chosen not to accept and
act upon his evidence, we need not also accept and act upon the
oral evidence of PW4. The uncorroborated testimony of PW4,
which could easily have been corroborated by ocular and
Crl.Appeal No.1465 of 2006 18
documentary evidence, cannot be accepted by us at this
appellate stage, the court below having chosen not to accept the
same. In any view of the matter, we are of the opinion that we
need not reverse this finding of the court below. This
circumstance thus must be held to be not established.
23. The prosecution relies on the sixth circumstance that
there was some black (grease) mark on the clothes M.O1 series
of the appellant. There was the evidence of PW4 also that when
he saw the appellant on that night at about 1.30 a.m, there were
some black marks on his pants. The evidence of PWs 1 and 2
suggest that at the time when the appellant went to the house of
PW1 after coming to know of the death of his father, he was
wearing M.O1 series and there were black (grease) marks on his
pants. Those were washed by PW2 and after washing, there is
no indication of any black (grease) marks on the pants worn by
the appellant, which is one of the items in M.O1 series.
According to PW2, these clothes were left by the appellant when
he went to the house of PW1 in connection with performance of
last rites of the deceased. At that point of time, it appears, the
needle of suspicion was not pointed at the appellant.
Crl.Appeal No.1465 of 2006 19
24. M.O1 series, when it was seized after the incident, did
not admittedly have any black (grease) marks on it. It was not
sent to the expert to ascertain whether there was any black
(grease) marks on it. It is the case of the prosecution that after
washing, there was no black (grease) marks on M.O1 series.
We can safely accept the evidence of PW2 to come to the
conclusion that there were black (grease) marks on the clothes
of the appellant before she washed them.
25. What is the importance of this circumstance? This has
now got to be considered. The scene of the crime is described in
detail in the scene mahazar and the inquest report. It is
significant to note that there is nothing to indicate that there
were any grease present/available at the workshop. Merely
because it was a workshop, significance cannot be attached to
the presence of black (grease) marks on the clothes of the
appellant. We have already noted that except that there were
black marks, there is nothing to authentically conclude that such
black marks were caused by grease. Moreover there is nothing
to indicate that such grease was available in the workshop.
26. It will not be inapposite in this context to note that
even the clothes of the deceased did not have any black (grease)
Crl.Appeal No.1465 of 2006 20
marks. If it is the case of the prosecution that black (grease)
marks happened to be present on the clothes of the accused,
because he was involved in an incident in the workshop, by the
same reason and logic the absence of black (grease) marks on
the clothes of the deceased is crucial. Admittedly there were no
black (grease) marks on the clothes (M.Os 14 and 15) worn by
the deceased which are described in the inquest report. In these
circumstances, even though we find no reason to disbelieve the
evidence of PW2 about the presence of black (grease) marks on
his clothes M.O1 series, we are unable to reckon the same as a
vital or crucial circumstance to suggest that the appellant was
involved in the incident which took place inside the workshop.
This sixth circumstance, though established, cannot hence be
reckoned as a crucial or vital circumstance against the appellant.
27. The court below appears to have reckoned another
circumstance as important. The court below felt that this
circumstance would be admissible under Section 8 of the
Evidence Act. The court below came to the conclusion that the
appellant, the elder son of the deceased, had not taken part in
the funeral rites/rituals of the deceased. The court below came
to the conclusion that the appellant being the elder son must
Crl.Appeal No.1465 of 2006 21
normally have performed those rites. The court below also
appears to have concluded that the mother of the appellant did
not permit him to perform the last rites. The learned counsel for
the appellant argues that it is impossible to ascertain how and
where from, the court below gathered this information. We have
been taken through the entire evidence. We find that no witness
had spoken on this aspect at all. There is nothing in evidence to
show that the mother of the appellant, the estranged wife of the
deceased, had objected to the appellant, the elder son of the
deceased, to perform the last rites. We have also tried to scan
through the entire evidence. We have been taken through the
evidence of PWs 1 and 2 meticulously. The mother of the
appellant, ie. the estranged wife of the deceased has not been
examined as a witness before court. We are unable to locate the
precise source of this information for the court below. We
requested the learned Public Prosecutor to point out the
evidence if any on this aspect. The learned Public Prosecutor
has also not been able to locate any such evidence adduced in
this case about such conduct of the appellant’s mother.
28. Moreover, the evidence reveals that the appellant did,
in fact, take part in the funeral rites/rituals. The evidence of
Crl.Appeal No.1465 of 2006 22
PW2 clearly indicates that M.O1 series clothes were left at the
house of PWs 1 and 2 by the appellant when he went there to
perform the last rites. Of course the prosecution has a case that
the appellant was compelled to take part in the funeral rituals.
This is sought to be inferred from the evidence of PW1, who
stated that on his request the appellant, the elder son of the
deceased, had gone to perform the last rites. The reasons which
prompted the appellant to wait for PW1’s request to take part in
the funeral rites are not according to us so crucial as to draw any
serious adverse inference against the appellant/accused. A son
in grief could also have acted in the manner which the appellant
is alleged to have behaved. At any rate, we are unable to attach
any crucial significance to this seventh circumstance relied on by
the prosecution.
29. After ascertaining the existence/non existence of the
seven circumstances referred above, we shall now consider as to
whether the circumstances proved can in any way point to the
guilt of the accused/appellant safely. We have already adverted
to all the relevant circumstances. We are unable to agree that
there is any circumstance which can satisfactorily connect the
appellant with the crime in question. The totality of
Crl.Appeal No.1465 of 2006 23
circumstances cannot at all generate the requisite satisfaction
beyond doubt that the appellant was responsible for the death of
his father. The circumstances proved cannot lead a prudent
mind to such a conclusion. The challenge raised against the
impugned verdict of guilty, conviction and sentence must, in
these circumstances, succeed. Evidence shows that M.O2 towel
was available at the place where the dead body was found. The
prosecution suggests that M.O2 must have been used for
ligature strangulation. It is significant that there is nothing in
M.O2 to connect the same with the appellant. On M.O2 blood
marks were found and those blood marks were of the same
group as that of the deceased. M.O2 cannot offer any linkage to
connect the accused with the crime. In these circumstances,
that cannot even be reckoned as a relevant circumstance.
30. In the result:
a) This Criminal Appeal is allowed;
b) The impugned verdict of guilty, conviction and the
sentence of imprisonment for life imposed on the
appellant/accused under Section 302 I.P.C is hereby set aside;
Crl.Appeal No.1465 of 2006 24
c) If the appellant’s detention is not required in
connection with any other case, he shall forthwith be released
from custody.
31. The Registry shall forthwith communicate the
operative portion of this judgment to the prison authorities and
the court below for immediate necessary action.
(R.BASANT, JUDGE)
(M.C.HARI RANI, JUDGE)
rtr/