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REPORTABLE  IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

        CRIMINAL APPEAL NO. 919 OF 2013

JOSE @ PAPPACHAN …APPELLANT

VERSUS

THE SUB-INSPECTOR OF POLICE, KOYILANDY & ANOTHER               …RESPONDENTS

J U D G M E N T

AMITAVA ROY, J.

The appellant stands sequentially  convicted by the both

the Courts below  under Section 302 of the Indian Penal code

(for short, hereinafter to be referred to as “IPC”) and  resultantly

sentenced to suffer imprisonment for life  and also to pay fine of

Rs. 10000/-.   

2. At the trial, he along with his brother Benny Joseph,

were indicted  under Sections 498A/Section 302 IPC read with

Section 34 IPC for having murdered his wife Neena.  The Trial

Court  however  acquitted  both  of  them  of  the  charge  under

Section 498A IPC.   The co-accused was also acquitted of  the

other charge. To reiterate, the conviction of the appellant under

Section 302 IPC having been sustained  by the High Court, he

seeks  panacean  intervention in the instant appeal.

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3. We have heard Mr. Basant R., learned senior counsel

for the appellant and Mr. G. Prakash, learned counsel for the

respondents.  

4. To  appropriately  outline  the  factual  premise,  apt  it

would be at the threshold to present the fascicule of the rival

projections.  

5. The appellant  was a police constable at  the time of

marriage with the deceased on 19.6.1986 as per their customary

rites whereafter they set up their matrimonial home to start with

at their family house and thereafter at the places of his postings

in service.  Allegedly, he developed an extra-marital relationship

with one lady named Darly for which he used to ill-treat and

harass his wife both physically and mentally whenever she used

to  express  her  reservations  and  objections  to  such  alliance.

According to the prosecution,  under  the influence of  the said

lady, the appellant even resigned from his job and proceeded for

Jeddah in the year 1997 where he and the said Darly lived as

husband and wife.   It  is  alleged that  in  order  to  legalise  the

relationship, the appellant plotted  to eliminate  the deceased

and with that end in view, returned to India on 22.8.2000. He

thereafter  accompanied  Neena,  the  deceased,   for  a  spiritual

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retreat to “Potta Divine Retreat Centre”  but abruptly cut short

their  stay  thereat  and  returned  home  on  19.9.2000.   The

accusation is that after their return on that date, sometime in

between  6.30  to  8.30  p.m.,  the  appellant  smothered  the

deceased  inside  the  room  of  his  house,  strangulated  her  by

using a plastic rope  and then hanged her from a hook of the

roof of the work area of the house by using a saree and thus

brutally  murdered her.   The prosecution has imputed that  in

this heinous act, the co-accused his brother, who since has been

acquitted, had assisted him.     

6. The  information  of  this  incident  was  lodged  by  Mr.

Cheriyan  @  Papputy   with  the  Koonachundu   Police  Station

whereafter  the  the  appellant  and  the  co-accused,  his  brother

were arrested on 21.9.2000  and 15.11.2000 respectively.  On

the closure of  the investigation, charge-sheet was laid against

both the accused persons under Sections 498A/ 302 read with

Section 34 IPC and eventually, the case was committed for trial

to the Sessions Court, Kozhikod.

7. The accused persons denied the charge and claimed to

be  tried,  whereafter  the  prosecution  examined  25  witnesses

including  the  doctor,  who  performed  the  post-mortem

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examination  on  the  dead  body  as  well  as  the  investigating

officer.  Several documents were also proved and exhibited. The

accused  persons  were  examined  under  Section  313  Cr.P.C.

They stood by their  denial  and refuted the correctness of  the

incriminating  circumstances with which they were confronted.

They also examined three witnesses in defence.   

8. The  Trial  Court,  to  reiterate,   on  a  scrutiny  of  the

evidence of the record  and after analysing the rival contentions,

acquitted both of them of the charge under Section 498A  but

held the appellant  guilty  of  the  offence of  murder  of  his  wife

Neena and convicted him under Section 302 IPC and sentenced

him as above.   The co-accused was exonerated of  the charge

under Section 302 IPC as well.  The appellant  failed to secure

his  acquittal  before  the  High  Court,  which  by  the  verdict

impugned, has sustained  the determination of the Trial Court.

9. Before adverting to  the evidence adduced, it would be

expedient  to  notice  the  defence  plea  for  a  purposeful

appreciation  thereof.  

10. It  is  the  assertion  of  the  appellant   that  being

compelled  by  financial  distress  and  with  the  consent  and

approval  of  the  deceased,   he  had  gone  to  Saudi  Arabia  on

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12.9.1997 in search of better pastures, after resigning from his

service from the State Police Department.  He claimed that his

relationship with his wife had always remained very fond and

affectionate and that out of the wedlock, they had two sons. To

endorse  this  contention,  he  referred  amongst  others  to  the

letters written by the deceased in particular to him while he was

abroad.   He maintained  that he used to remit finances for the

sustenance of  the deceased and the children and that on his

return to the country, he on the request of  the deceased had

accompanied  to  a  divine  retreat  on  16.9.2000  to  Potta,

wherefrom they returned on 19.9.2000.

11. According  to  him,  they  alighted  from the  bus  from

Potta  at their destination at about 7.30 pm. when they saw their

elder son going for purchase of house hold articles. He then sent

the deceased home  with his son and he  went in search for

labourers  to  work  on  his  property  on  the  next  day.   He

mentioned that in the process, he met Mullakkara Kunhumon,

Sainaba, Jameela and Palliparambil Thankan  and finalised with

them  for  such  work.  According  to  him,  he  thereafter  with

Thankan went to the house of  Edattankuzhi Jose  and Cheriyan

@ Papputty  but found that Jose was away for a meeting.  He

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thereafter  proceeded  towards  his  house  and  on  the  way  was

pushed down by two persons hurriedly coming from the opposite

direction. On his hue and cry, persons from the locality  rushed

to the place and searched for these two persons, but in vain.  As

in the process, the co-accused, his brother suffered chest pain,

the appellant requested Joy  (PW7) and Cheriyan @ Papputty

(PW1) to bring the necessary medical documents from   his wife.

12. These  two  persons  after  reaching  the  house  of  the

appellant, raised alarm  and on hearing the cry, he (appellant)

along with Anikkal Babu and Thankan, who were present there,

rushed to his (appellant) house whereupon they saw Neena in a

hanging posture from a hook in the roof of the work area of the

house and that Joy and Cheriyan @ Papputty  were holding her

legs to lift  the body upwards. The appellant thereafter took a

knife (koduval) from his kitchen and brought down the body by

snapping the saree  by which the body was hanging.  They then

rushed Neena to the Medical  College Hospital  where she was

declared to be dead.  The appellant while insisting that he was

innocent,  laid the blame on the relations of  the deceased  to

have foisted a false case against him.  

13. As  referred  to  hereinabove,  the  First  Information

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Report was lodged by Cheriyan @ Papputty at 9.30 a.m. on the

next day i.e. 20.9.2000, his version being that about 10 P.M.  on

19.9.2000,  while  Benny  (co-accused  and  brother  of  the

appellant) was sitting in the tea shop of  Pulluparambil Mathew

(PW6), he suffered an epileptic attack for which he along with

Mathew, on being requested by the appellant, went to his house

to secure the medical papers from Neena.  It was mentioned that

when they reached the house, they found the door open with a

lantern lit inside.  As on their calls, the deceased Neena did not

respond, they entered the house and found  her in a hanging

position from the hook on the ceiling at the work area at the rear

side  of  the  house  and  that  she  was  struggling  for  life.  They

having  raised  alarm  by  that  sight,  the  appellant  and  his

neighbourers including Kunjumon, Regi and Thankan  arrived at

the spot, whereafter the appellant cut the saree by which Neena

was hanging and took her in a jeep to a Medical College Hospital

where she was declared dead.  

14. In course of the investigation, the police conducted the

inquest of the dead body and in the process also recorded the

statement of PW6 Mathew who was present. His statement, as

recorded on the date of  the inquest  i.e.  20.9.2000, is  to the

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effect that on 19.9.2000 at about 9 p.m., while he was preparing

to sleep, the appellant loudly called him as well as his brother

Benny  to come  hurriedly.  When the witness reached the place

from where the appellant had shouted, he found  the appellant

asking somebody to stop and also  abusing someone.   When

enquired, the appellant,  stated to have seen two persons who

had  pushed  him  down  and  had  ran  away.  They  thereafter

engaged themselves  in search of the persons  refereed to by the

appellant but in vain. According to the witness, the appellant’s

brother Benny  started feeling sick for which  Kunjumon, who

was present, was asked by the appellant to call a jeep to  take

him  to  the  hospital.  The  appellant  simultaneously  asked  the

witness to go to his house and fetch the medical prescription

from his wife Neena. The witness along with PW1  Cheriyan @

Papputty  then went  to  the  house  of  the  appellant  and when

Neena did not respond  to their calls, they open the door which

was not bolted  and on reaching the kitchen area, they found the

deceased in a hanging position from a hook atop the kitchen

veranda by a saree, but was gasping for breath. On seeing this,

both of them  loudly raised alarm and  raised Neena upwards by

holding her legs.  The witness further stated that by that time,

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the appellant and others came running by hearing their cries

and  the appellant  brought a knife from the kitchen, cut the

saree,  brought  down  the  body  and  then  they  took  Neena

thereafter in a jeep to Thalayada Hospital where  the nurse there

recommended that  she be taken to the Medical College Hospital,

They did so, but the doctor there declared her to be dead.   

15. The  version  in  the  FIR  and  the  version  of  the

informant,PW1 Cheriyan @ Papputty and PW6 Mathew, made at

the earliest point of time after the incident, to start with, appear

to be substantially consistent.   

16.  PW1  Cheriyan @ Papputty testified that at 9.30 p.m.

on 19.9.2000, he had gone to sleep after dinner, when he was

awakened by  PW7 Joy  to  be  told  that  Neena  had committed

suicide. PW7, according to the witness, then was accompanied

by the appellant and PW6 Mathew.  He confirmed that prior to

the date,  the appellant and Neena had gone together for retreat

at  Potta,  leaving  their  children at  their  ancestral  house.   On

being questioned, the appellant divulged that they had returned

the same evening as Neena  was adamant to come back.   

17. The witness stated that on getting the news, he along

with those present,  including the appellant,  ran to his  house

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and on the way, the appellant stopped a car that was passing

and sent in it, the co-accused Benny, his brother. The appellant

thereafter sent Joy to bring a jeep.  When they reached the work

area of the back of the house of the appellant, they found Neena

hanging from the hook attached to the ceiling by a saree.  The

appellant brought a knife from  the kitchen, cut the saree and

brought the body down with the help of  others.  The witness

stated that in the meantime, Joy had  come with the Jeep.  They

all carried Neena firstly to a private hospital where a nurse, on

being  told that it was a case of suicide, advised that  the patient

be taken to the  Medical College Hospital.  When they reached

the hospital, the doctor on examining the Neena  declared her to

be brought dead.

18. The witness mentioned about the injuries above the

nose and side of the eyebrow and also swelling on the forehead

of the Neena.  When the witness  asked about the injuries, the

appellant  told him that  those might have been caused in the

process  of  cutting  the  saree  to  bring  the   body  down.   The

information about the incident was lodged on the next day by

him  and  he  proved  the  same  as  Ex.  P-1.   The  witness  also

confirmed that the appellant had later married one lady named

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Darly and that he had been living with her thereafter.

19. In the cross-examination, this witness disclosed that

about  3/1/2  years  before  the  incident,  the  appellant   had

resigned from his service in the police department and had gone

to the Gulf   leaving behind Neena and children in the house

built by him.  He also mentioned about the ancestral house of

the  father  of  the  appellant  about  200  meters  away  from his

house. The witness admitted as well  that the co-accused Benny,

brother of the appellant, had been then suffering from epilepsy

and on the date of the incident as well, he had a bout of attack

thereof.

20. In the course of the cross-examination, this witness

was  sought  to  be  discredited   by  referring  to  his  earlier

statements made in the course of the investigation. This was, as

imputed  by  the  defence  as  the  principal  witnesses  PW1

Cheriyan, PW6 Mathew and PW7 Joy had been examined  twice

by  the  police,  the  last  being  on  22.1.2004  on  the  eve  of

submission of the charge-sheet,  with an endeavour to highlight

that  the  earlier  statements  had  been  tailored  as  desired  and

suggested by the appellant. Noticeably, the time lag between the

date  of  the  incident  and that  of  the  second  recording  of  the

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statement of these witnesses on 22.1.2004, is nearly four years.

21. PW6 Mathew  deposed on oath that at  the relevant

time, he was running a tea shop in the locality which was very

near the house where the appellant and the deceased used to

reside.   According to this witness, on the date of the incident at

about 7 p.m., he had closed  his shop to attend a meeting  from

where he returned at about 8.30 p.m.  He found present at the

shop, Jose, (nephew  of the appellant)  along with others.  After

some time they dispersed therefrom.

22. According to the witness, later in the evening, when he

had gone  to sleep, the appellant came to his house at about 9

p.m.  and called  him.   He  also  called  his  brother  Benny  and

seemed to shout abuses at someone.  The witness along with

Jose ran towards the appellant  and by that time, they reached

the place,  they found others gathered as well.   The appellant

disclosed to him that while he was returning to his house, he

was  pushed  down  by  two  persons  on  the  way.   The  group

assembled there,   then tried  to  search for  these  persons  but

could not trace them.  At that time, Benny, the brother of the

appellant developed chest pain and he was taken to the shop of

the witness.  The appellant then requested the witness to  go to

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his  ancestral  house to  fetch tablets  for  Benny whereupon he

along with Jackson did so.   While passing by the front of the

house of appellant, they noticed that the lantern inside was lit

but the door was open.  They did not see any movement in the

house.   The witness stated that when  he returned with the

tablets,  the  appellant  enquired  about  the  admit  card  and

prescription for extending treatment to Benny.  On the request

of the appellant thereafter, the witness  along with Joy PW7 went

to the house of  the appellant and when they reached there, they

called out for Neena, but she did not respond.  On this,  they

entered the house and found Neena hanging from hook in the

roof of the work area at the rear end of the house.  He and Joy

thereafter ran back to the shop to inform about the incident,

whereupon  the appellant and PW1 accompanied them back to

the house.  The appellant asked Joy PW7 to bring a jeep to  take

Neena to the hospital.  They then retrieved  the body and took

Neena to the hospital where she was declared dead.  The witness

mentioned that he had given the earlier statement as per the

instructions of the appellant and  that when he was interrogated

by the Investigating Officer for the second time, he stated the

correct facts.

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23. In the cross-examination, the witness was confronted

with the earlier statement that  when he and PW6 had first seen

Neena hanging,  she was struggling and that   they raised her

upward and raised alarm on listening which the appellant and

others had come running.  He however denied the suggestion

that  he  had  departed  from  the  earlier  statement  on  being

influenced by the family members of the Neena.

24. PW7 Joy was a taxi driver at  the relevant time and

had a jeep.  This witness stated as well that at about 10 p.m. in

the  fateful  night,  while  he  was  sleeping  in  his  house,  two

persons  namely; Kunjumon and Palliparambil called him and

on being asked, requested him to come with his jeep as Benny,

brother  of  the  appellant  was  unwell.    On  this,  the  witness

reached the  shop  by  PW6 Mathew  with  his  jeep  and  found

Benny sitting on the bench with the support on the desk.  He

met the appellant who told him that Jackson and Mathew had

gone to fetch  tablets for Benny and on their return,  he (Benny)

would  be  taken  for  medical  treatment.   The  witness  further

stated  that  when  Jackson  and  Mathew  returned  with  the

medicines, the appellant enquired of them about the admit card

and prescription which they stated  had not been brought.  On

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this,  the appellant requested them to get those papers from his

house, whereupon the witness and PW6 proceeded towards the

house of the appellant.   This witness stated that on reaching

the house of the appellant, they saw the front door thereof to be

half open but the kerosene lantern inside was alight.  As Neena

did not respond  to their calls, the witness and PW6  entered the

house and eventually found Neena hanging from the roof  of the

service area with a saree.  The witness stated that they ran back,

by seeing this to the shop of Mathew where they informed the

appellant about the incident.  On hearing this, the witness, PW1

and PW6 rushed to the house of the appellant.  On the way, the

appellant stopped a car and  sent Benny together with Jackson

and others to the Medical College Hospital.  The witness stated

that at that point of time, the appellant asked him to bring the

jeep to his house whereafter PW1, the appellant and others took

Neena in his jeep to the hospital where she was declared dead.

This  witness  admitted  that  the  Investigating  Officer   had

recorded his statement twice. He conceded that  in the earlier

statement,  he  disclosed  that  it  was  PW1 who  had  first  seen

Neena  in a hanging position.  He added that  such a statement

was made on the instruction of the appellant.

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25.  In cross-examination,  this witness stated that   his

first  statement  was  recorded  on  22/23.9.2000  at  the   Police

Station  and  by  then  the  appellant  had  been  arrested   on

21.9.2000.  This witness too  was confronted with his earlier

statements.   

26. PW20  Dr.  Hitesh  Sankar  had  conducted  the

post-mortem  examination  on  the  dead  body  and  recorded

swelling on the left side of the forehead together with dried blood

stains   on the  upper  part  of  the  nose.   Apart  from pressure

abrasion on the neck and fracture of the greater horn of hyoid

bone   of  the  left  side,  he  deposed  about  contusions  and

abrasions  on  the  forehead,  eye  brow,  nose  and  jaw.   He

mentioned about scalp contusions as internal injuries.

27. In  his  opinion,  as  expressed  in  his  examination  in

chief,  the  findings  in  the  post  mortem  were  consistent  with

death due to strangulation followed by hanging and further that

the facial injuries  were  suggestive of attempted smothering. He

thereafter   answered  in  the  affirmative  to  various  leading

questions to indicate  amongst others that  the linear abrasion

under the neck could be caused by applying a plastic rope as per

the material exhibit shown to him.  He also  responded to one of

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the leading queries that the fracture of  thyroid bone could be

due to strangulation.

28. In  his  cross-examination,  the  witness  however  in

categorical terms conceded that he could not say as to whether

it  was a  case  of  suicidal  or  homicidal  hanging.   The witness

conceded  that  he  had  not  noticed  any  blood  stain  on  the

material  exhibit i.e.  plastic rope or any stretch mark thereon.

He also admitted of not noticing any fibre particle on the rope or

on the neck of the deceased.  He conceded as well that there was

no contusion/laceration on the inner aspect of the lips which are

normal feature in the case of smothering. He also negatived the

presence  of  other  attendant  signs  in  case  of  death  due  to

asphyxia preceded by smothering.  He however affirmed that the

ligature mark or the abrasion found on the neck was suggestive

of hanging.  He admitted  as well that hyoid and thyroid fracture

could be caused due to pull up of heightened noose moving up

during  hanging.   He  admitted  of  not  having  mentioned  any

injury of nail mark in the post-mortem certificate.

29. Apart from the fact that the nylon rope Ex.MO4 and

the  broken  pieces  of   glass  bangles  had  been  recovered  and

seized from under a cot  in the dining room, away from the site

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of hanging, the report of the chemical examiner Ex.P20 did not

disclose  any  blood  stain  on  the  plastic  rope.  Though  was

indicated presence of  hairs of human origin on the said rope, it

was  clarified  that  no  definite  opinion  could  be  given  as  to

whether the hairs belonged to a male or a female.  To reiterate,

the  doctor, PW20 also had affirmed that he did not notice any

blood stain on the nylon rope and instead added that neither

was there any stretch mark thereon nor did he notice any fibre

particle thereof on the neck of the deceased.

30. Though the prosecution had examined several  other

witnesses, their testimony  being not of any decisive relevance

would not be dilated upon.  The Investigating Officer of the case,

however, in his evidence amongst others admitted that the nylon

rope and the bangle pieces were recovered from the dining room.

This also finds support from the seizure list Ex. P-4.

31. The  appellant  in  his  statement  under  Section  313

Cr.P.C., in reply to the incriminating circumstances laid before

him, stated  that he had resigned from police service as per the

wishes of Neena and due to financial stringency  and had gone

to Saudi Arabia on 12.9.1997 and had returned on 21.8.2000.

According  to  him,  there  was  an  abiding  and  affectionate

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relationship  between  the  couple  and  that  they  had  two  sons

Akhil and Nikhil.  He referred to the letters written by Neena to

him while he was abroad, amongst others to demonstrate the

veracity of his statement about the warm relationship which he

shared with Neena.   He also  asserted to  have sent  money to

Neena  and the children for their sustenance and also referred to

the relevant documents in endorsement thereof.   He mentioned

about  their  visit  to  Potta  on  16.9.2000  and  their  return  on

19.9.2000.   He  narrated  the  defence  version  as  adverted  to

herienabove and claimed that death of Neena had occurred due

to  suicide  committed  by  her  and  denied  the  charge  levelled

against him and his brother Benny.  He however admitted that

after six years of the incident, on the insistence of his parents,

he had married with one lady named Anna.  He alleged that the

prosecution had been launched  by her in-laws who were hostile

towards him.    

32. The appellant in his defence, examined his son Akhil

as DW1, who at the relevant time, had finished his studies and

was  working  in  the  production  section  at  Fortune  Hotel,

Kozhikode.  He deposed on oath that during his academic years,

he  resided  with  his  mother  and  his  younger  brother  named

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Nikhil.  He stated that  the appellant, his father was initially in

the police service from where he  resigned and went to Gulf for

work in the year 1997 and  had returned in August, 2000.  He

deposed that during the time his father was away, he used to

stay  with  his  mother  and  younger  brother  in  their  house  at

Edattankuzhiyil.   He  confirmed that  the  relationship  between

his  mother  and  father  was  very  cordial.   He  denied  the

appellant's association with a lady named Darly and as a matter

of  fact expressed ignorance about her.   The witness admitted

that the appellant used to send money while he was away by

drafts and that  he along with his mother used to go to the bank

for that purpose. He also affirmed that the appellant used to be

in touch with them through letters and phone calls.  The witness

proved two letters marked Ex D4 & D4A which  he admitted to

have been written by his mother to the appellant.  He testified

that as well  that even after the return of the appellant from the

Gulf, his dealings with the mother  and vice versa were warm

and endearing.

33. This witness endorsed  the fact as well that he met his

parents  on 19.9.2000 at about 7.30 p.m. when they  alighted

from  the  bus  from  Potta  and  were  proceeding  towards  their

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house.   He  stated  that  at  that  point  of  time,  he  was  also

returning  home  with  some  household  articles  and  thus  he

accompanied  his  mother  back  home  while  his  father,  the

appellant went in search of labourers  for the next day work in

his  compound.   The  witness  stated  that  on  their  return,  his

mother prepared snacks, whereafter she told her to carry some

articles to the ancestral house and accordingly he did so.   The

witness however added  that though he  waited  for his parents

to come to the ancestral house, they did not do so and he came

to learn about the death of his mother in the next morning.   

34. In  cross-examination,  though  this  witness

categorically  denied  the  suggestions  put  on  behalf  of  the

prosecution to  project him to be untruthful, he  disclosed that

on the date of the incident, he  found his mother to be under

some mental stress.  He however, in definite terms, denied   that

when he met the appellant and his mother together for the last

time, there did not appear to be  any strained  feelings between

them.

35. The testimony of the appellant on oath as DW2 is the

replication of the defence version as already outlined and does

not call for reiteration.  He however proved the two letters dated

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28.2.2000 and 7.6.2000 written  by  the  deceased  to  him and

marked as Ex. D4 and D4A.  He however mentioned that Neena

was not happy for the early return from the divine retreat and

repeated that having disembarked from the bus at 7.30 p.m., he

sent Neena with his elder son Akhil back home, while he  went

in search of labourers for the next day's work.  He stated that

while he was proceeding towards his house later in the evening,

two persons came from the opposite direction, whom he failed to

identify, pushed him down for which he suffered injuries on his

hand.   He  thereafter  shouted  to  attract  people  so  as  to

apprehend these persons, but in vain.  He referred to the illness

of  his  brother  at  that  point  of  time  and  repeated  the  facts

pertaining to the events that occurred thereafter leading  to the

discovery  that Neena had  hanged herself from the hook of the

ceiling of the work area of their house.

36. In cross-examination, amongst others, he admitted to

have brought down Neena by cutting  the noose  with the help of

other persons.  He admitted as well his second marriage with

Anna @ Darly.

37. DW3  Babu stated   about  the  search  made  in  the

evening   of  the  date  of  the  incident   of  the  persons,  who

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according to the appellant, had pushed him down on his way to

his  house.   He  also  stated   about  the  chest  pain  of  Benny,

brother of the appellant while the search was in progress.

38. As the impugned judgement would disclose, the High

Court  took   note  amongst  others  of  the  factum  of  second

marriage of the appellant with the lady Anna @ Darly as stated

to be proved by the evidence adduced.  It also took note of the

fact that the couple had gone for the divine retreat for a week by

arranging the stay of  the children at the ancestral  house but

returned early.  It disbelieved the testimony of DW1, the son of

the  appellant,  construing  it  to  be  partisan   in  favour  of  the

appellant  in  order  to  save  him,  in  the  circumstances.   His

testimony  was  discarded  as  not  of  a  prudent  son  otherwise

expected to  be sensitive  to the death of his mother.  The High

Court   denounced  the  DW1  to  be  untruthful,  for  having

expressing his ignorance about the second wife of the appellant

Anna @ Darly.  It thus concluded that sans the evidence of DW1,

there is nothing on record to demonstrate that the appellant did

not accompany his wife to the house that evening, whereafter

she was not found alive.

39. Apart  from the  “last  seen together”  index,  the  High

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Court accepted the other perceived incriminating circumstances

against  the  appellant  namely  his  illicit  intimacy  with  Anna@

Darly, absence of explanation of his whereabouts after 7 P.M. till

his  presence in the shop of  PW6 Mathew,  recovery of  broken

bangles  of  the  deceased  from   the  dining  room  indicating  a

struggle,  nail   mark  found on the  forehead of  the  appellant

suggesting  resistance  from   the  deceased  and  want  of

satisfactory  explanation  as  to  under  what  circumstances  the

deceased was found hanging in the house of the couple.  

40. The  High  Court  rejected  the  defence  story  of  two

persons pushing the appellant down on his way to his house in

the evening and also commented on his conduct of not rushing

to the house as a prudent husband and instead arranging for

the conveyance of his brother to take him to the hospital even

after  being told that  his  wife  had been found hanging in  the

house.  On a consideration of the totality of the circumstances,

the  High Court  thus deduced that  the  death  of  Neena  was

homicidal  and  affirmed  the  conviction  of  the  appellant  as

recorded by the Trial Court.

41. In  this  contentious  backdrop,  Mr.  Basant  has

emphatically urged  that in the absence of any eye witness of the

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occurrence  and  a  convincing  and  complete  chain  of

circumstantial  evidence   unerringly  attesting  the  guilt  of  the

appellant, his conviction for murder, in the teeth of the acquittal

of  the  co-accused  Benny,  his  brother,   is  patently  illegal.

Asserting  that  the  evidence  as  a  whole  does  unmistakably

demonstrate  that  the  deceased  had  committed  suicide,  the

learned  senior  counsel  has  urged  that  the  acquittal  of  the

appellant and his co-accused of the charge under Section 498A

IPC also belies the imputation of his extra-marital  association

with the lady Darly as alleged by the prosecution.  According to

him, the  narration in the first information report  authored by

PW1 and  the  statement  of  PW6 in  the  inquest  report  at  the

earliest point of time  though authenticate the correct state of

affairs,  the attempt on the part of  the investigating agency to

improve  thereon  by  re-recording  of  the  statements  of  these

witnesses  along  with  that  of  PW7  was  only  to  frame   the

appellant in particular at the behest of his in-laws.

42. In any view of the matter, Mr. Basant has urged that

the interrogation of these witnesses after time lag of almost four

years  and  too  on  the  eve  of  submission  of  the  charge-sheet,

lays-bare  the stratagem of the investigating agency to prosecute

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him on  otherwise  unfounded allegations.   The  learned  senior

counsel has insisted that not only the testimony of PW1, PW6,

PW7 and PW20, the doctor who had performed the post-mortem

examination  is consistent with the innocence of the appellant,

it is apparent  from the documentary evidence more particularly

the letters Ex. D4 and D4A written by the deceased to him that

there  was  a  subsisting  loving  and  affectionate  relationship

between them till the demise of the former.  He has argued that

the medical evidence having failed to  convincingly prove that

the deceased had died of homicidal hanging, the seizure of the

nylon  rope and broken pieces of bangles from under the cot  of

the  adjoining dining room pales into insignificance.  It has been

urged that the evidence of the son of the appellant, who was a

major at the time of his deposition with the desired maturity of

understanding, overwhelmingly establishes his innocence, there

being no persuasive reason for the witness to lie in his favour

and against his mother.  

43. According  to  Mr.  Basant,  the  courts  below  grossly

erred  in  discarding  his  evidence  being  unworthy  of  credit,

branding him  to be insensitive to the death of his mother and

pretentious in faking ignorance of the lady named Anna @ Darly

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and  her  alleged  extra-marital  relationship  with  the  appellant.

The learned senior counsel has maintained that in absence of

any concrete evidence of  the alleged illicit  nexus between the

appellant and the lady named Anna @ Darly, his marriage with

her  did not ipso facto establish the imputation.  Mr. Basant has

urged  that  the  circumstantial  evidence  relied  upon  by  the

prosecution  is incoherent and insufficient in  form, continuity

and content and falls short of the legally prescribed  standards

to return a finding of guilt on the basis thereof.  Reliance has

been  placed  on  the  decisions  of  this  Court   in  Sharad

Birdhichand Sarda  vs. State of Maharashtra (1984)4 SCC

116   and R. Rajendran Nair vs. State of Kerala  (1998) SCC

(Crl.) 254  

44. In refutation, the learned counsel for the respondents

has maintained that the circumstantial evidence  available on

the record does amply establish the complicity of the appellant

in  the  gruesome  murder  of  the  deceased,  his  wife  by

strangulation  with  the  aid  of  a  nylon  rope  seized  and  then

suspending her from the roof of the work area by using a saree

as a ligature. The guilt of the appellant,  according to the learned

state  counsel,  inter  alia  is  unerringly  deducible   from  his

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unusual  conduct  of  not  rushing  back  home  even  after  being

informed  of  the  incident  and  instead  in  arranging  for  a

conveyance for his brother to the hospital.  Further, he did not

act  as a prudent husband,  even if  his  story of  being pushed

down by two strangers is believed in not hurrying back to his

house to ensure the safety of his wife, the deceased. It has been

argued that deceased was seen alive last in the company of the

appellant when they alighted from the bus at 7.30 p.m. in the

same  evening.   According  to  the  learned  state  counsel,  the

testimony  of  DW1,  the  son  of  the  appellant  is  wholly

untrustworthy,  it  being   partisan and untruthful  and in that

view of the matter, the mishap having occurred  inside the house

in which the couple used to live, the appellant, in absence of any

explanation  for the episode, has been rightly held to be guilty of

the  offence  charged  by  both  the  courts   below.   It  has  been

argued  that the medical evidence fully substantiates the charge

of  murder  levelled  against  the  appellant  and  the  prosecution

having  been  able  to  prove  that  the  motive  therefor  being  to

eliminate the deceased in order to facilitate the consummation

of the otherwise illicit relationship of his with Anna @ Darly, no

interference with his conviction is  warranted in the facts and

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circumstances  of  the  case.   The  fact  that  the  appellant

eventually married the said lady, amply establishes the charge

as well, he urged.     

45. The arguments exchanged have received our anxious

consideration  cumulatively  with  the  evidence  on  record.

Admittedly  there  is  no  eye-witness  to  the  incident.   The

endeavour of the prosecution, however has been to demonstrate

that after the couple had returned from Pota in the evening of

the date of the episode, they returned home and thereafter the

appellant had committed the murder of his wife Neena by first

strangulating her with the nylon rope that was recovered from

under the cot in the dining room and then had hanged her from

the hook of the roof of the service area by using a saree as a

ligature.   This  inference,  according  to  the  prosecution,  is

inevitable  from  the  attendant  facts  and  circumstances.   The

quality and  the decisiveness of such evidence, therefore, would

be of determinative relevance.

46. Aside  the  aspect  that  PWs  1,  6  and  7  had  been

examined twice  by  the  investigating  agency  at  the  interval  of

almost  four  years,  we  have  been  left  unconvinced  by  the

peripheral  variations   in  their  statements  so  as  to  infer  the

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complicity  of  the  appellant  on  the  basis  of  their  attempted

departure from their versions recorded at the earliest point of

time.   Though  these  witnesses  have  been  sought  to  be

discredited  by the prosecution vis-a-vis their earlier statements

allegedly  made at  the behest  of  the  appellant,  the  essence of

their  testimony qua the incident and the attendant facts  and

circumstances  has  remained  the  same  barring  a  few

inconsequential inconsistencies.  Noticeably, there is no reason

forthcoming for re-examining these witnesses after almost four

years and on the verge of the submission of the charge-sheet.

The  plea  of  false  implication  at  the  instance  of  the  inimical

members  of  the  family  of  the  deceased  in  this  context  thus

assumes significance.

47. Suffice it  to recount that the testimony of PWs 1, 6

and 7 would evince that when the persons sent by the appellant

had  reached the  house  of  the  appellant  to  fetch the  medical

records  of  his  brother  Benny,  they  found the  door  open  and

when the deceased did not respond to their call,  they entered

through  the  door  and  found  her  in  a  hanging  posture  with

movements,  whereupon  they  raised  alarm  for  which  the

appellant and others rushed to the place and the body of the

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deceased was brought down by cutting the saree.  Though the

conduct and the movements of the appellant prior thereto had

been somewhat unusual and disoriented, the same per se in our

estimate does not irrefutably establish his culpability.

48. The medical evidence as elaborated hereinabove also

does not decisively establish the case to be of homicidal hanging.

The unchallenged expositions of the doctor performing the post-

mortem  examination  highlighting  the  absence  of  the

characteristic  attributes  attendant  on death due  to  homicidal

hanging following strangulation further reinforce the possibility

of  suicide.  The absence of  definite  medical  opinion about  the

homicidal  death  of  the  deceased  in  our  comprehension  is  a

serious set back to the prosecution.   

49. The evidence of the eye-witnesses when considered in

conjunction with the testimony of the doctor does not link the

appellant directly or indirectly with the actual act leading to the

unnatural death of the deceased.  In absence of any persuasive

evidence  to  hold  that  at  the  relevant  time  the  appellant  was

present in the house, it would also be impermissible to cast any

burden  on  him  as  contemplated  under  Section  106  of  the

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Evidence Act.  The consistent testimony of the appellant and his

son to the effect that after alighting from the bus on their return

from Pota,  the  deceased  was  made  to  accompany  DW1 back

home while the appellant did go in search of labourers for works

in his compound on the next day and that thereafter till the time

DW1 had departed for his ancestral house, the appellant did not

return home, consolidates the defence plea of innocence of the

appellant.   

50. This version of the appellant and his son is in accord

with the statement made by the appellant  under Section 313

Cr.P.C. as well.   Though the courts below have dismissed the

testimony of DW1 as untrustworthy, he having feigned ignorance

about the lady Darly  with whom his father allegedly had extra

marital  affairs and was construed to be partisan towards the

appellant  and  insensitive  to  the  death of  his  mother,  we  are

unable  to  lend  our  concurrence  to  these  reasonings.   This

witness  at  the  time  of  his  deposition  was  a  major  with  the

required  maturity  in  the  life's  perspectives,  and  in  our

assessment expectedly would not have lied for the appellant, his

father, only to see him through, though knowing him to be the

real perpetrator of the crime. This is more so when the deceased

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was his own mother.   

51. The prosecution plea that the appellant had resigned

from  the  service  in  the  police  department  to  move  out  to

Jeddah/Saudi Arabia  with the intention to perpetuate his illicit

association with the lady Darly thereat and that in a way he had

deserted the deceased and the children, is also not borne out

definitively by the materials on record.  On the other hand, a

plain perusal of the letters Ex. D4 and Ex.D4A written by the

deceased to the appellant while he was abroad, do not reveal

anguished  outbursts  of  a  wife  otherwise  expected  in  such  a

situation or any fervent insistence for early return.  Instead the

contents thereof reveal narration of mundane happenings of day

to day life, emphasis on the need for his required stay thereat

for enhanced savings together with somewhat intimate feelings

expected  of  a  married  couple  physically  estranged  by

compulsion of circumstances.  The letters for the least, do not

suggest  any  bitterness,  disappointment,  frustration  and

seething  indignation  of  the  deceased  for  the  appellant  being

away  at  Jeddah/Saudi  Arabia  and  allegedly  with  the  lady,

Darly.  Instead there are traces of cheer for his expected return

in near future.  The authenticity of these letters and also of the

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records  relied  upon  by  the  defence  to  demonstrate  that  the

appellant while abroad used to remit money for the sustenance

of the family, has not been impeached.   

52. On an overall consideration of the evidence available

on record, it would be, in our view, wholly unsafe to hold the

appellant  guilty  of  the  charge  of  murder  of  his  wife  by

strangulating  her  with  the  nylon  rope  as  seized  and  then

hanging her from the roof with the saree to complete the act.

The circumstantial evidence adduced by the prosecution in our

assessment falls  short of  the requirement in law to return a

finding of  guilt  against  the appellant  without  any element  of

doubt whatsoever.  The fact that both the accused persons had

been exonerated of the charge of cruelty under Section  498A

IPC and that  the co-accused,  who allegedly had assisted the

appellant  in  the  perpetration  of  the  crime  had  been fully

acquitted by the courts below of all  the charges  also  takes

away the wind from the sails of the prosecution.   

53. It is a trite proposition of law, that suspicion however

grave, it cannot take the  place of proof and that the prosecution

in order to succeed on a criminal charge cannot afford to lodge

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its  case in the realm of  “may be true”  but has to  essentially

elevate  it  to  the  grade  of  “must  be  true”.   In  a  criminal

prosecution,  the  court  has  a  duty  to  ensure  that  mere

conjectures or suspicion do not take the place of legal proof and

in a situation where a reasonable doubt is entertained in the

backdrop of the evidence available,   to prevent miscarriage of

justice, benefit of doubt is to be extended to the accused.  Such

a  doubt  essentially  has  to  be  reasonable  and  not  imaginary,

fanciful,  intangible or non-existent but as entertainable by an

impartial,  prudent  and  analytical  mind,  judged  on  the  touch

stone  of  reason  and  common  sense.   It  is  also  a  primary

postulation  in  criminal  jurisprudence  that  if  two  views  are

possible on the evidence available, one pointing to the guilt of

the accused and the other to his  innocence, the one favourable

to the accused ought to be adopted.

54. The facts as obtained  in the present case present a

jigsaw puzzle in which several frames are missing to permit an

unreserved opinion of  the complicity of the appellant.

55. The inalienable interface of presumption of innocence

and the burden of proof in a criminal case on the prosecution

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has been succinctly expounded in the following passage from the

treatise “The Law of Evidence”  fifth edition by Ian Dennis  at

page 445:

“The presumption of innocence states that a person is presumed to be innocent until  proven guilty.  In one sense this simply restates  in different language the rule that the burden of proof in a criminal case is on the prosecution to prove the defendant's guilt. As explained  above,  the  burden  of  proof  rule  has  a number of functions, one of which is to provide a rule of  decision  for  the  factfinder  in  a  situation  of uncertainty.  Another function is to allocate the risk of  misdecision  in  criminal  trials.   Because  the outcome   of  wrongful  conviction  is  regarded  as  a significantly worse  harm than wrongful  acquittal the rule  is constructed so as to minimise the risk of the former.   The burden of overcoming  a presumption that the defendant is innocent therefore requires the state to prove the defendant's guilt.”

56. The  above  quote   thus  seemingly   concede  a

preference  to  wrongful  acquittal  compared   to  the  risk  of

wrongful  conviction.   Such  is  the  abiding  jurisprudential

concern to eschew even the remotest  possibility of unmerited

conviction.  

57.   This  applies  with  full  force  particularly  in  fact

situations where the charge is the sought to be established by

circumstantial  evidence.  These  enunciations  are  so  well

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entrenched that we do not wish to burden the present narration

by referring to the decisions of this Court in this regard.   

58. Addressing  this  aspect,  however,  is  the  following

extract also from the same treatise “The Law of Evidence” fifth

edition by Ian Dennis at page 483:

“  Where the case against the accused  depends wholly or partly on inferences from circumstantial evidence, factfinders cannot logically   convict  unless they are sure that inferences of guilt are the only ones that can reasonably  be  drawn.   If  they  think  that  there  are possible  innocent  explanations  for  circumstantial evidence that are not “merely fanciful”, it must follow that there is a reasonable doubt  about guilt.  There is no rule, however, that  judges must direct juries in terms not to convict  unless they are sure that the evidence bears no other explanation than guilt.  It is sufficient  to  direct   simply  that  the  burden on the prosecution is to satisfy the jury beyond reasonable doubt, or so that they are sure.

The very high standard of proof required in criminal cases minimises the risk of a wrongful conviction.  It means  that  someone  whom,  on  the  evidence,  the factfinder believes is “probably” guilty, or “likely” to be guilty will be acquitted, since these judgements of probability  necessarily  admit that  the factfinder  is not “sure”.  It is generally accepted that some at least of these acquittals will be of persons who are in fact guilty  of  the  offences  charged,  and  who  would  be convicted if the standard of proof were the lower civil standard  of  the  balance  of  probabilities.   Such acquittals  are  the  price  paid  for  the  safeguard provided by the “beyond reasonable doubt” standard against wrongful conviction.”  

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59.    A reference in the passing however to the of quoted

decision in Sharad Birdhichand Sarda (supra) construed to be

locus  classicus  on  the  relevance  and  decisiveness  of

circumstantial evidence as a proof of the charge of a criminal

offence would not be out of place.  The relevant excerpts from

paragraph 153 of the decision is extracted herein below.  

“153.(2)  The  facts   so  established   should  be consistent only with the hypothesis of the guilt  of the accused...they  should  not  be  explainable   on  any other hypothesis except that the accused is guilty.

(3)  the  circumstances  should  be  of  a  conclusive nature and tendency.

*                  *                    * (5) 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.”

60. As recent as in  Sujit  Biswas vs. State of Assam

(2013)  12  SCC  406,  this  Court  also  in  the  contextual  facts

constituting  circumstantial  evidence  ruled  that  in  judging  the

culpability  of  an  accused,  the  circumstances  adduced  when

collectively  considered  must  lead  to  the  only  irresistible

conclusion that the accused alone is the perpetrator of a crime in

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question  and  the  circumstances  established  must  be  of  a

conclusive nature consistent only with the hypothesis of the guilt

of the accused.   

61. In  Dhan Raj @ Dhand vs. State of Haryana (2014)

6  SCC  745,  one  of  us  (Hon.  Ghose,J.)  while  dwelling  on  the

imperatives of  circumstantial evidence  ruled that the same has

to be  of highest order to satisfy the test of proof  in a criminal

prosecution.   It  was  underlined  that  such  circumstantial

evidence should establish a complete unbroken chain of events

so that only one inference  of guilt of the accused would ensue by

excluding all possible hypothesis  of his innocence.  It was held

further  that  in  case  of  circumstantial  evidence,  each

circumstance  must  be  proved   beyond  reasonable  doubt  by

independent  evidence   excluding  any  chance  of  surmise  or

conjecture.       

62. Judged  on  the  above  parameters,  we  are  of  the

unhesitant opinion that the evidence adduced by the prosecution

constituting  circumstantial  evidence in support  of  the charge

does  not  furnish  an  unassailable  basis  to  hold  the  appellant

guilty of the charge of murder levelled against him.  The facts and

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circumstances admit of a reasonable doubt in his favour.   

63. The circumstances brought forth by the prosecution

do not rule out in absolute terms the hypothesis of the innocence

of  the  appellant.   We thus consider  it  to  be wholly  unsafe  to

maintain his conviction as recorded by the courts below. We are

therefore  inclined  to  extend  benefit  of  doubt  to  him.  The

conclusions drawn by the courts below are not tenable on the

basis of the evidence available.    The appeal is thus allowed and

the  conviction  and  sentence  recorded  by  the  courts  below  is

hereby  set  aside.   The  appellant  be  released  from  the  jail

forthwith if he is not required in any other case.

 …….....……………………..….J.  (PINAKI CHANDRA GHOSE)

……....……………………..….J.  NEW DELHI; (AMITAVA ROY) OCTOBER 3, 2016.