Kerala High Court
G. Rajammal vs State Of Kerala on 12 April, 2019
          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

                             &

            THE HONOURABLE MR. JUSTICE A.M.BABU

  FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941

                   CRL.A.No. 103 of 2014

   AGAINST THE JUDGMENT IN SC 897/2013 of SESSIONS COURT,
                  KOLLAM DATED 24-01-2014

     CP 96/2013 of JUDICIAL MAGISTRATE OF FIRST CLASS-
                      I,KOTTARAKKARA

 CRIME NO. 153/2006 OF Kottarakkara Police Station, Kollam




APPELLANT/2ND ACCUSED:

            G. RAJAMMAL
            W/O. K.A.RADHAKRISHNAN, RAJAM VILLA, NEAR
            KULAKKADA VHSS, ERATHKULAKKADA MURI,
            KALAYAPURAM VILLAGE.

            BY ADVS.
            SRI.P.VIJAYA BHANU (SR.)
            SRI.MALLENATHAN.M.
            SRI.M.REVIKRISHNAN
            SRI.VIPIN NARAYAN
 Crl.Appeal Nos.103 & 200/14

                               -:2:-

RESPONDENT/COMPLAINANT:
            STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM.

               BY ADV.SMT.S.AMBIKADEVI, SPL.PP FOR ATTROCITIES
               AGAINST WOMEN AND CHILDREN

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
26.02.2019, ALONG WITH CRL.A.200/2014, THE COURT ON THE
12.04.2019 DELIVERED THE FOLLOWING:
 Crl.Appeal Nos.103 & 200/14

                                -:3:-

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

             THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

                                   &

               THE HONOURABLE MR. JUSTICE A.M.BABU

  FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941

                        CRL.A.No. 200 of 2014

        AGAINST THE JUDGMENT IN SC 897/2013 of SESSIONS
                 COURT,KOLLAM DATED 24-01-2014

       CP 96/2013 of JUDICIAL MAGISTRATE OF FIRST CLASS
                       -I,KOTTARAKKARA

 CRIME NO. 153/2006 OF Kottarakkara Police Station, Kollam



APPELLANT/1ST ACCUSED:


               BIJU RADHAKRISHNAN ALIAS K.R.BIJU
               S/O.RADHAKRISHNAN, RAJAM VILLA, (NEAR KULAKKADA
               V.H.S.S), ENATHUKULAKKADA MURI, KALAYAPURAM
               VILLAGE KOTTARAKKARA, KOLLAM.

               BY ADVS.
               SMT.NISHA K.PETER
               SRI.ALEX JOSEPH

RESPONDENT/COMPLAINANT:
            STATE OF KERALA
            REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH
            COURT OF KERALA, ERNAKULAM-682031.

            BY ADVS.
            SMT.AMBIKA DEVI S, SPL.PP ATROCITIES AGAINST
            WOMEN & CHILDREN
     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD         ON
26.02.2019, ALONG WITH CRL.A.103/2014, THE COURT            ON
12.04.2019 DELIVERED THE FOLLOWING:
 Crl.Appeal Nos.103 & 200/14

                                 -:4:-




                              JUDGMENT

Shaffique, J.

Crl.Appeal No.200/14 is filed by the first accused and Crl.Appeal No.103/2014 is filed by the second accused in SC No.897/2013. The first accused has been found guilty and sentenced to undergo imprisonment for life and to pay a fine of `1 lakh with default sentence of rigorous imprisonment for 3 years for offence u/s 302 of I.P.C; rigorous imprisonment for one year and to pay a fine of `1,000/- with default sentence of rigorous imprisonment for 3 months for offence u/s 323 I.P.C. and rigorous imprisonment for 5 years and to pay a fine of `50,000/- in default of payment of fine to undergo rigorous imprisonment for one year for offence u/s 201 I.P.C. Accused 1 and 2 are sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of `50,000/- in default of which to undergo rigorous imprisonment for 6 months each for offence u/s 498A of I.P.C. Second accused is acquitted for the offence punishable u/s 201 of I.P.C.

2. The short facts of the case are as under:-

Reshmi, wife of the first accused, was declared dead on Crl.Appeal Nos.103 & 200/144/2/2006. The 2nd accused is the mother of first accused. The prosecution allege that, on the night of 3/2/2006, the first accused picked up a quarrel with the victim, hit her on her head and thereafter administered Ethyl Alcohol to her, and while she was in an inebriated condition, he suffocated her with her dress and caused death. To mislead the neighbours and make them believe that the victim died due to cerebral hemorrhage, they dragged her to the bathroom, made her to sit on the toilet, removed the bathroom latch so as to make it appear that the door was broken out from outside. They called some of the neighbours and it was propagated that she died of hemorrhage. The accused had also destroyed the Ethyl Alcohol bottle. While the first accused was charged for offence under Sections 302, 323 and 201 and 498A of I.P.C., the 2 nd accused was charged for offence u/s 498A and 201 of I.P.C.

3. The history of the case as narrated by the prosecution would indicate that Reshmi was residing in the house of the accused at Kulakkada as a paying guest in the year 2001 while she was studying for the B.Ed course. Knowing that she comes from an aristocratic and affluent family of Kollam, first accused lured her and entered into a marriage agreement with Reshmi Crl.Appeal Nos.103 & 200/14 and registered the same on 21/7/2001 at the office of Adoor Sub Registrar. According to the prosecution, they undertook a ritual of marriage in a temple, as well. The relationship was not approved by Reshmi’s family and they took her back discontinuing the education. However, Reshmi continued the relationship and from January 2002 onwards, first accused and Reshmi started living together as husband and wife. Two children were born in the wedlock. According to the prosecution, when the accused realised that no wealth was coming from the side of his wife, he started physically and mentally harassing her. She even attempted to commit suicide. During 2005, first accused developed an intimacy with PW14 which created a strained relationship between the couple. Since Reshmi felt that the marriage with the first accused was not legally valid, she was insisting for conducting a proper customary marriage. When such a demand was made, accused felt that he should do away with Reshmi in order to marry PW14, and it is pursuant to the aforesaid idea that he had done away with Reshmi, is the case.

4. In order to prove the case, prosecution relied upon the oral testimony of PW1 to PW43, Exts.P1 to P60, MO1 to MO9 and Exts.X1 to X5 documents were also marked. DW1 to DW3 were Crl.Appeal Nos.103 & 200/14 examined on behalf of the accused and Exts.D1 to D18 were marked.

5. The learned counsel for the appellant Sri.Alex Joseph appearing for the first accused argued that the prosecution has relied upon several circumstances to prove the case and none of the said circumstances has been established beyond reasonable doubt. He argued that initially the prosecution had no idea about the cause of death. The post-mortem was conducted by PW37. Ext.P30 is the post-mortem report submitted by her. In her report, she stated that the cause of death is reserved pending laboratory investigation of chemical analysis. Ext.P21 is the chemical analysis report in which it was revealed regarding the presence of Ethyl Alcohol in the viscera and blood. Ext.P28 is the pathology report in which it was reported that there was no evidence of any significant pathological reasons to account for the death from natural causes. In her final opinion Ext.P31, she has stated that a definite opinion as to the cause of death cannot be stated. However, she further opined that, “possibility of death from Ethyl Alcohol poisoning cannot be excluded”. Learned counsel submits that Ext.P31 report was submitted on 7/8/2006. Subsequently, when PW41 started investigating the case, he filed Crl.Appeal Nos.103 & 200/14 a report incorporating S.498A of I.P.C. By Ext.P26 dated 29/6/2010, the State Forensic Science Lab had given a report of polygraph test conducted on the accused. The test was conducted on 27/3/2007. Certain crime related questions were asked. The test result did not yield any result and still the prosecution had no clue regarding the cause of death, other than what has been stated in Ext.P31. PW43 took over investigation in the case from 21/5/2013 to 31/8/2013. On 25/5/2013, he had come to know that the accused had violated bail conditions on 28/4/2010, in yet another case. He filed a report to cancel the bail of the accused and having come to know that he had committed offence u/s 302 of I.P.C., he filed a report Ext.P44 dated 25.05.2013 to incorporate the offence u/s 302 of I.P.C. The accused was arrested on 17/6/2013. It is argued that only after PW43 started investigation, a theory was brought in by the prosecution alleging that death of the deceased was caused due to smothering and Reshmi died due to asphyxia. Prosecution alleged that the accused had suffocated her by using her shawl which resulted in her death. The argument is that, initially, the possibility of the cause of death was due to consumption of Ethyl Alcohol and after several years, a new theory had been brought Crl.Appeal Nos.103 & 200/14 out stating that it is an asphyxial death, for which there is absolutely no material and the evidence of PW37 and PW38 to that extent cannot be relied upon to convict the first accused u/s 302 of I.P.C. As far as extra-judicial confession is concerned learned counsel argued that the prosecution relied upon the evidence of PW11 and PW14. First of all, it is not an extra-judicial confession which can be relied upon to convict the accused. Secondly, the so called extra-judicial confessions were taken 7 years after the alleged incident and it is not a statement allegedly given by the said witnesses immediately having known about it. The extra-judicial confession allegedly made to PW11 was immediately after the incident. But a statement was recorded by the investigating officer only after 7 years. Similarly PW14 has two different versions. Learned counsel submits that the prosecution has a case that the first accused had administered alcohol to the victim and the chemical analysis report indicates presence of alcohol. But no material had been collected from the house to prove that the accused had brought alcohol and its source had not been investigated. As far as the alleged dying declaration is concerned, the prosecution has yet another case that before death, the deceased had complained about the Crl.Appeal Nos.103 & 200/14 alleged cruelty by her husband. But there is absolutely no evidence whatsoever to indicate that the victim was leading an unhappy life. If as a matter of fact, first accused was physically committing any act of cruelty, some wound or injury would have been seen on the victim. Ext.P38 does not indicate any such wound or injury on the victim. Learned counsel also points out that the motive alleged by the prosecution is absolutely baseless. The marriage between the couple was registered before the Sub Registrar Office and a ritual marriage had already been conducted. Prosecution alleged that Reshmi wanted to have a customary marriage which the accused had promised, but he had no such intention due to the intervention of PW14 and therefore the accused entertained an idea to do away with Reshmi. Accused wanted to marry PW14, which is the motive for doing away Reshmi. It is argued that there is absolutely nothing to prove that such a motive had been entertained by the accused at any point of time, especially when marriage has already been registered and customary marriage had taken place as evident from the oral testimony of PW22 and PW17. He also argued that there is fabrication of material objects. MO1 to MO3 which were taken on 4/2/2006 were sent for chemical examination only after Crl.Appeal Nos.103 & 200/14 7 years as evident from Ext.P11. Ext.P59 report dated 6/9/13 indicates that five of the items which were seized cannot be traced out. He also argued that there was no attempt on the part of accused to conceal any evidence. Immediately on noticing that she was lying in the bathroom, neighbours were called and she was taken to Pranav hospital initially and thereafter shifted to the Government Hospital from where she was reported dead. It is also argued that the principle of last seen theory does not apply as there is nothing incriminating brought out to indicate that the accused has committed his wife’s murder. It is further argued that the prosecution had placed reliance on the testimony of the child witness to prove that the first accused had assaulted his mother. It is argued that the child was 3½ years of age at the relevant time when the incident occurred and though the investigating officer had questioned the child, he was unable to say anything. When he is questioned after 7½ years, that is at the age of 11, he gives a deposition to PW43 regarding the said incident, which according to the learned counsel, is not believable. Therefore, it is argued that the prosecution had utterly failed to prove the case against the accused beyond reasonable doubt. That apart, there is absolutely no evidence to invoke S.498A of I.P.C. Crl.Appeal Nos.103 & 200/14

6. Learned Senior counsel Sri.P.Vijayabhanu appearing on behalf of the 2nd accused also contended that the only evidence available is that there was some normal bickerings between the mother-in-law and daughter-in-law. Second accused has not committed any such act as alleged by the prosecution and there is no evidence for the same. Therefore, the offence u/s 498A is not made out against the 2nd accused.

7. On the other hand, learned Public Prosecutor Smt.Ambika Devi argued that though Ext.P1 was registered u/s 174 of Cr.P.C. Later report was filed incorporating Section 498A of I.P.C. and thereafter Sections 302 and 201 of IPC. She argued that the evidence of PW11 clearly indicates that the accused had agreed to conduct a customary marriage on 4/2/2006 at Kadakkal Devi temple between 10.30 and 3.30. As a Panchayat member, she was asked to arrange the marriage and on hearing the said news, Reshmi was very happy. PW1, son of accused and Reshmi was only 3½ years at the relevant time. He had clearly narrated the incident which happened on 4/2/2006. He had stated that his mother was assaulted and she was forced to drink a brown coloured liquid. It is argued by her that evidence of PW37 and the opinion of PW38 establishes the fact that death of the victim was Crl.Appeal Nos.103 & 200/14 on account of soft smothering. It is argued that when a person is in an inebriated condition, if the victim is smothered by soft cloth, there won’t be any visible signs and the victim dies of asphyxia. It was pointed out that there was no other reason for the victim to die and therefore the only reason is death due to asphyxia. The accused had a clear motive to do away with her and he had committed the same in his own house. He had also confessed the murder to PW11 and PW14. It is argued that the oral testimony of PW1 to PW6, PW8, PW9, PW10, PW11 and PW12 would clearly prove the complicity of the accused. Further, the evidence of PW11, PW14, PW18 and PW19 would prove the motive as well, and Ext.P4 amounts to dying declaration of the deceased. Learned Public Prosecutor argued that in so far as there is no evidence to show that she committed suicide or she died on account of any natural causes, it can only be a homicide and that too with a soft cloth. She also argued that the conduct of the accused was also relevant. He knew about the death even while she was taken in the jeep to the Hospital. But when she was taken to Pranavam hospital, the Doctor advised her to be taken to Taluk hospital. At that time, first accused asked the driver to take a longer route so that even if she is not dead, she would die Crl.Appeal Nos.103 & 200/14enroute and finally when they reached the Taluk hospital, the Doctor declared her as dead. That apart, immediately after knowing about the death from the hospital, accused 1 and 2 left the place. Children were at home and they were taken to the place of Reshmi’s parents by the neighbours. The accused fled and was absconding. It is therefore argued that all the circumstances which had been relied upon by the prosecution had been proved beyond all reasonable doubt and therefore the conviction against the accused has to be sustained.

8. Learned counsel on either side had placed reliance upon various judgments which we shall refer to, in the course of the judgment.

9. This is a case in which there is no direct evidence to prove the commission of murder. Prosecution relies upon circumstantial evidence. It is settled law and as held by the Apex Court in Ganpat Singh v. State of M.P., [(2017) 16 SCC 353], if there are no eyewitnesses to the crime and the case rests on circumstantial evidence, the law postulates a twofold requirement. “First, every link in the chain of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt. Crl.Appeal Nos.103 & 200/14 Second, all the circumstances must be consistent only with the guilt of the accused.” In Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], it was held as under:

“The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence.”

10. The prosecution places much reliance on the testimony of PW1, the minor child in order to prove the fact that the accused had assaulted his mother and forced her to drink some form of liquid. Court below had also placed much reliance on the said evidence. At the relevant time, when the incident occurred, the child was only 3½ years old. When he was examined before Court, he was 11 years old. After observing that he is capable of testifying, he was examined in chief and he stated that he remembers the day on which he has last seen his mother. When he was asked regarding the incident that Crl.Appeal Nos.103 & 200/14 happened, he stated that one day by about noon, one aunty came to their house and gave sweets. His brother consumed the sweet and the aunty went away after talking to their mother. By evening, his brother had fever. PW1 was asked to remain at the neighbour’s house. Brother was taken to hospital. Later leaving his brother at their house, mother had come to call him at the neighbour’s house. Neighbour gave them payasam. After that, mother took him and went home. After some time, the 1 st accused came and asked his mother why she had taken Achu (younger brother) to hospital without his permission. His mother was beaten up. Mother cried. After crying for sometime, she went to have a bath. Accused was sitting in the hall. When mother came from the bathroom, he manhandled her mother and she fell down near the wall. He forcibly opened the mouth of his mother and a brown coloured liquid was given to her. His mother fell unconscious. When he was watching the incident, he was asked to go and lie down and he was also beaten. He cried and went away. After hearing the sound, afraid of the same, his brother went under the cot. After some time, when he woke up to tell his mother that he wants to go to bathroom, mother was lying across bathroom and bedroom. Blood was oozing from her nose. He got Crl.Appeal Nos.103 & 200/14 afraid and again went to the bed. He woke up in the morning. Neighbours were there. Mother was not seen. Thereafter, along with his neighbours, he was taken to the place where he is now residing. He further deposed that, on the said day, mother and the accused alone were there and there was a person who was residing on rent. When he was asked whether he had mentioned about all this to any person, he stated that he had mentioned that to Suresh Kumar uncle (PW43) and in his house he had stated some matters. In cross-examination, he stated that he does not know the name of aunty and after mother’s demise, he is residing with his grand parents. He further stated that even before his mother had come to take him back, accused had come and they quarreled and he had beaten her and mother cried. He further states that at that time, mother of the accused (A2) was not there. He does not remember which dress mother was wearing when she came after the bath. In further cross- examination he stated that he saw his mother lying across the bathroom and bedroom and to another question as to whether blood had oozed immediately from the nose, he said blood came after the liquid was given to her. In further cross-examination he stated that when the police had come and questioned him Crl.Appeal Nos.103 & 200/14 initially, he had only stated a few matters. Suggestion was that he was tutored by the grand parents and the police which he denied.

11. The defence case was that evidence of the child witness cannot be believed for more than one reason. One is that his statement was recorded after 7 years and by the time he was in a position to give any tutored version before Court at the instance of his grand parents and Police. PW1’s statement was not recorded initially by the Police. It is also argued that at best, his evidence would only show that his father had beaten his mother and she was forced to consume a liquid. The chemical examination report would show that there was Ethyl Alcohol in her body. But the cause of death was not on account of consumption of Ethyl Alcohol and therefore even assuming that Ethyl Alcohol was administered, it was not the reason for her death and an offence u/s 302 of I.P.C. cannot be made out. Learned counsel for the appellant placed reliance on the judgment in Jagjit Singh v. State of Punjab [(2005) 3 SCC 689]. In the above case, the Apex Court was considering a question regarding the admissibility of the evidence of a child witness. The statement of the child witness u/s 161 Cr.P.C was Crl.Appeal Nos.103 & 200/14 taken 3 days after the incident. The Apex Court did not believe the version of child witness when she said after 5 years from the date of occurrence that she knew the appellant because he happened to be the son of Amar Singh and in none of the earlier statements made by her, she had given the name of Amar Singh. That was a case in which Court was concerned with the identity of the accused who committed the crime and on this finding, the appeal was allowed acquitting the accused.

12. On the other hand, learned Public Prosecutor submitted that the evidence of PW1 has to be believed. The fact that the statement was taken several years after the incident will not affect the prosecution case in any manner especially when his evidence is corroborated by the testimony of other witnesses who had been examined in the case. She relied on the testimony of PW9, Mercy who deposed that, on the previous day of the death of Reshmi, she had taken the child to hospital. Her elder son was at her house and he was playing. Reshmi came about 8.30-9.00 p.m. At that time, Reshmi’s son after consuming payasam, was sleeping. When Reshmi came, she was also given payasam. Thereafter she went to her house. It is argued that when the child speaks about the facts that happened on the Crl.Appeal Nos.103 & 200/14 previous day, that he had gone to Mercy aunty’s house, and had payasam, it proves the incident which happened on the previous day and therefore there is no reason to doubt the memorising capacity of PW1, though he was only 3½ years of age at the relevant time. She relied upon the judgment in State of U.P. v. Satish (2005 KHC 734), wherein the Apex Court held that: “As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion.”

13. In State of Maharashtra v. Bharat Fakira Dhiwar (2002 KHC 1109), the Apex Court held that it cannot be said that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child, his Crl.Appeal Nos.103 & 200/14evidence shall be rejected, even if it is found reliable. The evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and thus a child witness is an easy prey to tutoring. If the evidence is shown to have stood the test of cross-examination and there is no infirmity in the evidence, then a conviction can be based upon such testimony alone. It is held that corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. In Satish and Another v. State of Haryana (2017 KHC 4097), the Apex Court has believed the version of a 12 year old boy. It is held that it is not an invariable rule of criminal jurisprudence that without corroboration the evidence of child witness could not be accepted.

14. Evidence of PW43, who was the investigating officer would show that he had taken over investigation on 25/1/2013. He deposed that to assess the evidence of PW1, he requested for the services of a Child Psychiatrist. He gave a request to the Medical College Hospital Superintendent on 23/7/2013. On Crl.Appeal Nos.103 & 200/14 1/8/2013, in the presence of PW36 Dr.Anil Kumar, PW1 was questioned and his statement was recorded. The said statement was video-graphed by PW27. The DVD is produced as MO7. Therefore, this is a case in which though the child witness was available even during the relevant time for being questioned, statement was ultimately taken only on 1/8/2013 with reference to an incident which happened on 4/2/2006.

15. Initial investigation in the case was conducted by PW34, Sri.T.James. At the relevant time, he was the Dy.S.P., Punalur. He conducted investigation from 4/2/2006 to 31/7/2006. He deposed that on the basis of information received by him from the Sub Inspector of Police, he started investigation. He prepared the scene mahazar, examined PW1, PW2, PW4 and PW6 and he recorded their statements. He had questioned PW1, who was in a frightened mood. He only asked four preliminary questions. He understood that the first accused used to assault PW1 and Reshmi. He thought of questioning PW1 later, after he gets accustomed to the situation and therefore he did not ask further questions. During the relevant time, he did not get the chemical analysis report. Later he was transferred. Since the accused were absconding, he could not question him. Exts.D1 and D2 Crl.Appeal Nos.103 & 200/14 statements of PW4 and PW6 respectively were marked through him. In further cross-examination, he stated that he only asked four questions to PW1, but he did not record anywhere, that PW1 was not in a mental capacity to give a statement. He thought that PW1 can be questioned later and his statement was incomplete. He suspected that it was a planned murder, but all the materials were not available. He further stated that he could not file a report since the cause of death was not known, and not that the offence was not made out. He had given a statement to the present investigating officer on 3/8/2013. The suggestion of the defence was that he is giving evidence that PW1 was in a frightened mood at the relevant time, at the instance of the present Investigating Officer and to help the department.

16. From the aforesaid evidence, it is apparent that PW34 did not even attempt to take a statement of PW1. At the relevant time, being a child, probably he would have been in a trauma and he would have been frightened, but it is the duty of the Investigating Officer to prove a case of homicide, if he had any suspicion, and the child ought to have been examined after complying with the requisite formalities. Before examining a child witness, he ought to have obtained the assistance of a Crl.Appeal Nos.103 & 200/14 Psychiatrist as has been done by PW43 and questioned the child as suggested by the Psychiatrist. He did not make any attempt to do that, though according to him, he suspected that it might be a case of homicide. This, attitude of PW34, the Investigating Officer, according to us, would amount to grave dereliction of duty and negligence in investigating a case. That apart, he says that accused could not be questioned as they were absconding. There is absolutely no material to indicate that any summons or notice had been issued to the accused to enable them to appear before the Investigating Officer. Therefore, this is a clear instance where there is gross negligence and lapse on the part of the concerned Investigating Officer during the relevant time, in conducting investigation. If there is delay in examining a child witness, there is every chance for the child witness to be tutored. In the case on hand, PW34 says that he knew that the victim and the child were being assaulted by the first accused. Still he did not feel it necessary to examine the child witness after complying with the procedural formalities. It could be further seen that the investigation was being handled by a few other persons from time to time. Some of them had been examined before Court. PW39 who was the Dy.S.P. CBCID Kollam from 18/8/2008 to Crl.Appeal Nos.103 & 200/14 8/11/2008 had recorded the statements of PW4, PW6, PW9, PW10, PW16, PW17, PW24 and PW37. He also seized records from Adoor Sub Registry Office to prove the marriage agreement between A1 and the deceased. During cross-examination, he proved Exts.D4 and D5 statements given by PW9 and Exts.D8, D9 and D10 statements given by PW10. He stated that on 8/11/2008, he had recorded in the CD, that the offence u/s 304-B I.P.C. was divulged, but he did not sent the report as he got transferred. PW41 has also conducted investigation from 10/12/2008. He had constituted a special team for examining the accused and had recorded the statement of witnesses. He thought that further investigation was necessary to find out the cause of death of the victim. In his investigation, it was found that there was a demand for dowry and harassment pursuant to the same. Accordingly, on 15/1/2010, he incorporated S.498A of I.P.C. and a report was filed as Ext.P33. A1 was made an accused and a report was filed as Ext.P34. The records produced before the Sub Divisional Magistrate Court was transmitted to the judicial Magistrate of First Class Court, on the basis of Ext.P35 application. He understood that the first accused was arrested in Crime No.910/2009 of Museum Police Station and accordingly Crl.Appeal Nos.103 & 200/14 application was filed before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram and JFCM Court, Kottarakkara. Based on Court orders, first accused was arrested on 01/02/2010 and he was taken on custody from 01/02/2010 to 5/2/2010. He understood that the bathroom door could be opened from outside also. Accused was willing to conduct polygraph test. Ext.P36 application was submitted to the Court and his written consent was obtained as Ext.P37. Ext.P38 is the order of the Magistrate. He had also filed a report Ext.P39 to make the first accused’s mother as 2 nd accused in the case. He retired on 31/3/2010. He had examined PW4, PW12 and PW15. He proved Ext.D12.

17. PW40 was the Dy.S.P who conducted investigation from 27/8/2010 to 17/3/2011. He had questioned PW37 and recorded the statement regarding the possibility of soft smothering. First accused was again questioned on the basis of the evidence. He deposed that he had recorded that further evidence should be collected and investigation should be proceeded by incorporating S.302 I.P.C. In cross-examination, the suggestion was that he did not report incorporation of S.302 of I.P.C. as he was not satisfied with the evidence, which he denied. Crl.Appeal Nos.103 & 200/14 According to him, he had recorded the same in his case diary. In cross-examination, he deposed that he asked the Doctor, if a female having a quantity of 120mg/100 ml of alcohol in her system is smothered with a soft material like pillow case, whether there is possibility for causing death without any struggle or resistance, the Doctor had given an opinion that it is possible and therefore he had arrived at a conclusion that it is a case of murder. In fact it was PW43, for the first time filed a report Ext.P44 dated 25/5/2013 inferring that it is a homicidal death. Until then, investigating officers had either not conducted any investigation or they were totally unaware of death being caused in the manner now stated and it was PW43, who for the first time took a statement from PW1. Of course, we are mindful of the fact that in Ram Bihari Yadav v. State of Bihar and Others [(1998) 4 SCC 517], the Apex Court held that in cases where there is omission on the part of the investigating officers, which are designedly committed to favour the accused, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials, otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party which would shake the Crl.Appeal Nos.103 & 200/14confidence of the people not merely in the law enforcing agency, but also in the administration of justice.

18. Before dealing the arguments of either side, it will be useful to narrate, in brief, the evidence adduced by the prosecution.

19. PW2 is the father of Reshmi who had lodged Ext.P1 FIS alleging unnatural death of his daughter. He deposed that Reshmi married the first accused on her own volition by registering the marriage. Later on, he received information that she was living in a pathetic condition and he offered to take her back after the marriage of his daughter. Reshmi and children were brought back to his house. He further stated that on the day when Reshmi died, he was at Bangalore. One Vijayakumar informed him that Reshmi and the first accused were conducting a customary legal marriage on 3/2/2006. On 4 th, he got information that his mother-in-law was not keeping well and he had to come back and when he reached at Kollam, he heard about the demise of his daughter. He further stated that the accused did not come for the cremation. People at Kulakkada had brought the children to his house. When he enquired with PW1, he was told that the accused used to assault them and their Crl.Appeal Nos.103 & 200/14 mother. Since no action was taken pursuant to Ext.P1, he submitted Ext.P2 to the Superintendent of Police. In chief examination, he was asked whether PW1 was told about the incident and whether he had understood anything, his answer was that he did not ask the children, as he did not want to hurt them and he wants to give proper education to the children.

20. PW3 is the sister of Reshmi who also spoke almost in line with what has spoken to by PW2. She also stated that Reshmi had told her about the torture and difficulties she suffered at the matrimonial home.

21. PW4 is the neighbour of the accused and Reshmi. She stated that on the date on which Reshmi died, at 6.00 a.m, 2 nd accused called her and she was told that Reshmi is inside the bathroom and she is not opening the door, and asked her to come and see. When she reached there, Reshmi was sitting in the European closet of the bathroom and A1 was sitting down. Reshmi was lying on the shoulder of A1. A1 took Reshmi to the room of A2. A2 brought a nighty as Reshmi was wearing only a top. Her mother sprinkled water on the face of Reshmi. She did not respond. People in the locality came and Reshmi was taken to the hospital in a jeep. Teacher (A2) came after several days to Crl.Appeal Nos.103 & 200/14 take the articles. People who assembled there, scolded her. A1 was brought for investigation purposes after a long time. She further stated that after the incident, Reshmi’s children were in their house and by evening they took them to Reshmi’s sister’s house. During cross-examination, she stated that she did not say that she saw Biju Annan (A1) holding Reshmi by her armpits and was taken to teacher’s room and she was laid there. According to her, she had seen Reshmi sitting in the closet and thereafter A1 took her. Ext.D1 is the contradiction in her evidence.

22. PW6 Beena Biju is a qualified nurse. She is another neighbour. She also stated that she came after being called by another neighbour stating that Reshmi was lying unconscious. She checked the pulse. She could not feel the pulse. She knew that Reshmi died, but she did not tell anybody, since she could not confirm. She only told her husband. She asked Reshmi to be taken to hospital. Thereafter she was taken to the hospital in a jeep.

23. PW7 is a person who is a tenant of A1 and A2. He resides in two rooms on the north-west direction of the house. He is a witness to the photographs being taken and the photographs are marked as Ext.P5 series. On the date of incident, he heard Crl.Appeal Nos.103 & 200/14 some sound. When he enquired, he was told that Reshmi fell in the bathroom. Reshmi was taken to the hospital. In cross- examination, he stated that, on the previous day, he heard Reshmi and Biju talking until 11.30 p.m.

24. PW8 Mariyamma Joseph, is yet another neighbour. She also deposed that after hearing the hue and cry, on the said day, at about 6.15 a.m., she saw Reshmi being taken to the hospital leaving the children alone in their house.

25. PW9 is Mercy, who is again a neighbour. She deposed what happened on the previous day when Reshmi had taken the 2nd child to hospital. She further stated that her husband had informed her about the death of Reshmi and that A2 had come to the house 10-15 days after the incident and A1 was seen 2-3 years after the incident. Children were taken to Reshmi’s house.

26. PW10 Anoop Kumar is another neighbour. He heard that Reshmi was not keeping well. When he reached there, about 10-70 persons were there. A jeep was parked. He took Reshmi and she was taken inside the jeep. Accused 1 and 2 sat behind the jeep along with Thankachayan. Chandran and Joseph, Dany himself and Prabhakaran Pillai also joined them. First, they went to Pranavam hospital. Dr.Ajayakumar on examining Reshmi said Crl.Appeal Nos.103 & 200/14 that she is serious and he asked them to take her to another hospital. Thereafter, she was taken to Taluk Hospital. On the way, teacher asked Thankachayan that she should save her son and Thankachan said, “let us save her, then, we will decide”. He thereafter came back and after changing his dress, took his bike and went to the Kottarakkara hospital. Two minutes after he reached, the jeep with Reshmi came. He asked Thankachayan why they were late. He said teacher told them to send the vehicle through Pallickal Perumkulam. Doctor came and after examining Reshmi, they were told that she was dead. At this time, A1 was sitting there in front of the hospital face down and he was crying. Doctor said that the body has to be shifted to the mortuary for post-mortem. Thankachayan had gone to have a tea along with him. After five minutes, they came back. They did not see A1 and A2. At the time of post-mortem, relatives of Reshmi had not come. Himself and Thankachayan proceeded to his house in the bike. In cross-examination, he stated that when they came back to Kulakkada, he alone got down. Ext.D9 has been marked wherein he stated that while they were returning, Thankachayan and himself got down and after changing their dress, they had proceeded to the Kottarakkara Hospital in his bike. He said he Crl.Appeal Nos.103 & 200/14 had not given such a statement. He also denied having given Ext.D10 statement which states that Biju insisted to take the jeep via Perumkulam. Jeep was proceeding in that direction. When they reached Perumkulam, Lalu and his relatives were standing on the road. As requested by Biju, Lalu and his brother came behind the jeep in an auto.

27. PW11 is a social worker. She was the General Secretary of Kerala Congress (M), Women’s Wing during 2006. She knew the first accused, second accused and Reshmi. On one day, she had seen A1 assaulting Reshmi. She interfered. Reshmi was not in a position to cope up with the second accused. She further stated that she had gone to file complaint on behalf of Reshmi. One day morning, she had come to her house with a boy named Lalu. Teacher has closed their house. She is unable to boil water for the children and she wants to give a complaint and for that she required her help. She asked Reshmi to prepare a complaint in a paper. Reshmi wrote a complaint. They took an auto and proceeded to Kottarakkara Circle Office and gave a complaint and complaint was also given in Kottarakkara Police Station. She identified Ext.P4 as the photocopy of the said complaint. According to her, a copy was retained by her. One Crl.Appeal Nos.103 & 200/14 complaint was given to the Crime Branch Office, Punalur and to the Dy.S.P.’s office. Ext.P4 was given ten days’ before the incident. Reshmi was having fear of life which is reflected in Ext.P4 and the same was informed to her also. She saw Reshmi on the previous day of her death. Reshmi had called and she had gone to their house. When she went there, the accused was also there. Reshmi was in a happy mood. A1 has not married Reshmi and Reshmi told her that A1 had agreed to marry her. That might be the reason for the happiness. A1 also told her about the same and the marriage was to be solemnized at Kadakkal Devi Temple on the next day and they had also decided to register the marriage at Kadakkal Panchayat Office. She called the Panchayat President and informed the same to him. Next day, she heard somebody knocking on her gate at 7-7.30 a.m. When she opened the door, she saw the first accused along with the boy named Lalu. They came into her house. When she asked why he had come, A1 asked for water. She gave water. A1 was panicking. She asked what happened. Then he said “അവൾ പ യ” (she has gone). എനകക കകയബദദ റ പ യ (I committed a mistake). Then she asked him കക പന ബജ (Biju, did you kill her), he answered ” റ പ യ” (It happened). He further stated that “കക ലകർ എകന കക ലദ, രകകണദ” Crl.Appeal Nos.103 & 200/14 (People from Kollam will kill me, please save). She asked A1 to sit there. When she looked back, she did not see Lalu. She called the Block President and told him about the said case and asked him what she should do. The President told her that he had come after killing, leaving at hospital. She got perturbed. She closed the front door and proceeded to the back side and called the Dy.S.P. He was in a conference and asked her to be careful. He further asked her to ensure that A1 remains in the same place and that he will come by evening and take a decision. She took A1 to her family house. She called Dy.S.P about 12 times. He took the phone about 6-7 times and was telling that the conference was not over. Thereafter, he did not pick up the phone. She therefore contacted a lawyer at Punalur and entrusted A1 to him. She came back home. Next day, morning, the Advocate called her and told that A1 had left the place and she was asked to pay `1,500/- as hotel bill, which she paid. In cross-examination, she stated that she had entrusted Ext.P4 to the police and a mahazar was prepared, but she does not remember whether she had signed the same. She further stated that based on Ext.P4, Police interfered and she came to know that the door was opened. No further investigation was conducted. If Crl.Appeal Nos.103 & 200/14 so, she would not have died. During cross-examination, she stated that she had informed the police on all occasions that A1 had told her that he had committed a mistake. However, she does not know why such statement is not recorded in her statement taken in the year 2013. She denied having given Ext.D11 statement in which she has stated that Biju told her that Reshmi was lying in the bath room unconscious and she was taken to the hospital and Doctors told him that she had died.

28. PW12 is another neighbour. He also stated that he heard a noise by around 5.30 in the morning and that when he ran to A1’s house, A1 asked him “uncle, please help Reshmi”. Reshmi was lying in the bed. A1 told him that Reshmi had become unconscious. He asked them to take her to hospital. Vehicle was called. He also accompanied them in the jeep. Thankachan, A1, A2, Ramachandran, Rajan and Anoop also came in the jeep to Pranavam Hospital. Doctor came near the jeep and examined. He asked to take the victim to Government Hospital immediately. On the way, Anoop got down at Kulakkada near his house. Others had gone via Puthoormukku. The accused asked them to go via Pallickal to collect some money. When they were about to reach Pallickal, a person came and handed over some Crl.Appeal Nos.103 & 200/14 money to A1 and they proceeded to Kottarakkara Government Hospital. Reshmi was taken to Doctor’s room. Doctor examined and found her dead. He told the matter to A1. They did not know what to do next. Doctor came and said that she has to be shifted to mortuary and when he looked for A1, he did not see him. He enquired with A2. They removed the body to the mortuary. When they came back, A2 was also not seen. After some time, they called the Panchayat member. The matter was informed to him. 5-6 persons were there. Since they had to go for work, they came back. He had not seen A1 thereafter. A2 was seen after a week. Ext.D12 contradiction was marked, which he denied. He had given a previous statement that while coming back to Kottarakkara, Anoop and Thankachan got down at Kulakkada. He stated that he had not given Ext.D12 statement.

29. PW13 Rajendran Pillai knew Reshmi and heard about the accused. He is a social worker and presently DCC Member of Congress party. He knew PW11. One day morning, she called and informed him that Reshmi is no more and that her husband was waiting in her house. She doubted that he had committed murder of Reshmi. He was asked to do the necessary to help. He told her that A1 was a cheater and not to interfere and not to call him. He Crl.Appeal Nos.103 & 200/14 disconnected the phone. Ext.D13 is the contradiction which was marked through him.

30. PW14 is a person who knew Reshmi and the accused. She saw Reshmi for the first time while she was residing at Thiruvananthapuram. She called her to give a complaint against A1. She knew A1 long back. They have worked together in the Kerala Housing Finance Limited. At the relevant time, she was living separately from her husband. A1 told her that he is going to start another company and that she would be given employment. Later on, she got confidence in A1 and she used to talk about all her personal matters. She further deposed that A1 had told her that his wife Reshmi is having suspicion against him and therefore she was not called for the inauguration of the company. Later, she resigned from his company since he suspected that she was having extra-marital relationship with another person. Thereafter, he started threatening her over telephone and making malicious allegations against her. She narrated the relationship she had with A1 over a period of time and the business deals they were having. A question was asked as to what A1 had told her about Reshmi’s death, her answer was that Reshmi had gone to take a bath stating that she wants to go to Crl.Appeal Nos.103 & 200/14 temple. When she did not come back, he forcefully opened the bath room. Reshmi was sitting in the closet nude. She was unconscious. He called the people in the locality. She was told by first accused that the cause of death was cerebral hemorrhage.

31. PW15 was the husband of PW14. They got divorced in November 2006. He deposed that it was on account of the relationship PW14 had with first accused. He deposed that while he was in Saudi Arabia, Reshmi had called him over telephone and asked him to settle the matter with PW14 so that she will get back her husband (A1). Reshmi called on several occasions and she even said that if PW14 does not keep away, for her, he may even kill her. Reshmi had called him two days before her death. PW14 called him in the morning at 6 a.m and told that Reshmi died on account of brain tumour. In cross-examination, he deposed that he was seeing first accused for the first time in Court and he had filed the divorce petition on account of PW14’s illicit relationship with Vijayan and she was not living in a decent manner, while she has gone for her studies at Ernakulam.

32. PW16 is a PWD contractor. He was examined to prove the financial transaction he had with first accused and later he found that the idea was to cheat him.

Crl.Appeal Nos.103 & 200/14

33. PW17 is a ‘Santhi’ at Mahadevan Kavil temple. He deposed that first accused and Reshmi had contacted him for their marriage. The temple was closed. Outside the temple, they garlanded each other and got married. It was not a marriage in accordance with the custom by giving ‘pudava’. He had not maintained any register. Photo was taken. Ext.P8 series was identified by him.

34. PW18 was the Chief Reporter of a fortnightly periodical by name Crime. She had given news in the magazine about Reshmi. She knew Reshmi personally. Through Reshmi she got acquainted with first accused. She was enquiring whether the concern of the first accused was intended to cheat people. Reshmi had come to know that A1 and PW14 were planning to live together. She had interfered in the matter and had requested first accused to avoid PW14. She understood that Reshmi and children were not given money and they were in poverty. Reshmi had gone to a flat at Trivandrum where PW14 was residing and there was a quarrel between them. First accused shifted to another hotel after the said incident. A1 and PW14 continued their relationship. Knowing about the same, Reshmi had come to her office and they had gone to Cantonment Crl.Appeal Nos.103 & 200/14 Police Station and the matter was reported. Hotel was raided and they were caught. A1 had assaulted Reshmi and Reshmi called her over phone and said that she would be killed and she requested for help. PW18 asked her to contact the Chief Editor and in November, 2005, Reshmi met the Chief Editor and told him that she was having fear for her life. PW18 informed the matter to the father and mother of Reshmi and after her efforts, he had come to take Reshmi to their house. After sometime, he had come to the house of first accused. First accused confided that he would not do any harm to her and they decided to have a peaceful life. Next day at 10 a.m, PW14 called her and informed that Reshmi died on account of cerebral hemorrhage.

35. PW19 is the Chief Editor of Crime Story. He also deposed in the manner spoken to by PW18.

36. PW20 was the Assistant Director (Chemistry) at the State Forensic Science Lab, Trivandrum. Ext.P11 is her report. She had examined MO1 to MO5. Ethyl Alcohol was detected in MO1, MO2 and MO3. MO1 is a salwar top, MO2 is a maxie and MO3 is a kaili. Ethyl Alcohol could not be detected in MO4 churidar top and MO5 churidar. Poison could not be detected in item Nos. 1 to 5. Ext.P12 is the serological report. Blood was not Crl.Appeal Nos.103 & 200/14 detected in any of those items.

37. PW21 is a dancer and film actress. She runs Jaykerala School of Performing Arts. She is examined only to prove that she knew the first accused. She identified Exts.P13, P14 and P15 series documents.

38. PW22 was the Sub Registrar of Adoor Sub Registry Office on 21/10/2008. He produced copy of Ext.P16 and proved Ext.P17 mahazar and identified Ext.P18 kaichit.

39. PW23 was the Standing Committee member of Kulakkada Panchayat during 2006. He knew the accused and Reshmi. Two weeks before Reshmi died, A2 called him to their house to have a mediation with Reshmi. A1 was not there. A2 was telling that Reshmi does not comply with whatever she says. Reshmi was telling that marriage with A1 was not legal and therefore a legal marriage is to be conducted. A2 was complaining against her and that her son became like this on account of Reshmi and that A1 was in financial trouble. He is a witness to Ext.P19 inquest report.

40. PW24 was the Doctor who examined Reshmi on 4/2/2006 at 7.05 a.m and issued Ext.P20 certificate. He stated that the patient was brought by Biju Radhakrishnan, her husband Crl.Appeal Nos.103 & 200/14 and she was brought dead. She was shifted to the mortuary and police was informed.

41. PW25 was the Assistant Chemical Examiner at Chemical Examiner’s Lab, Thiruvananthapuram. The sealed bottle which received by her contained the viscera of Reshmi. She prepared Ext.P21 report. Ethyl alcohol was detected in item nos. 1, 2 and 3. Item no.3 blood sample contained 120.75 mg of Ethyl Alcohol in 100 ml of blood. No other poison was detected in the samples.

42. PW26 is the Village Officer who prepared Ext.P22 scene plan. PW27 is the photographer who had taken the videograph in a DVD which is marked as MO6. The videograph was relating to the recording of the evidence of PW1 while examined by the investigating officer.

43. PW28 was the Revenue Divisional Officer. He had conducted the inquest which is marked as Ext.P19. PW29 is Dr.R.Vinod Kumar. He was working as Scientific Assistant on 4/2/2006. He had examined the scene of occurrence in connection with the crime. He stated that the bathroom had a tin sheet shutter in the wooden frame. He conducted benzidine examination of the floor and walls of the bathroom for detecting Crl.Appeal Nos.103 & 200/14the presence of blood or any trace evidence. But no trace evidence was detected and he did not find any incriminating articles.

44. PW30 is a witness to Ext.P23 seizure mahazar and Ext.P24 diary. Exts.P24 (a) and (b) are the entries in the diary. He was the Dy.S.P. on 4/9/2007. PW31 was the Crime Branch Sub Inspector on 21/10/2008. He had prepared Ext.P17 mahazar. He also identified Exts.P16 and P18. PW32 was the Assistant Director Polygraph at Forensic Science Lab. He conducted polygraph examination of A1 on 27/3/2010.

45. PW33 was the Sub Inspector of Police at Kottarakkara on 4/2/2006. He had recorded Ext.P1 FIS. He had prepared Ext.P27 mahazar in the presence of Scientific Assistant. A broken piece of ear ring was found in the bathroom which is marked as MO8 and an iron hook was also seen. Black churidar top, pant which were hanging on the bathroom door were taken as MO4 and MO5. Diary in the bedroom was taken as Ext.P3.

46. PW35 is Dr.A.Sarath Kumar, is the Additional Professor of Pathology, who during the relevant time was working as Assistant Professor in the department of Pathology, Medical College. He prepared Ext.P28 report which is the pathology report Crl.Appeal Nos.103 & 200/14 of Reshmi. One question had been asked to him by the defence which reads as under:-

“Is it correct that in certain situation, bronchitic asthma may lead to sudden death ?

It depends on clinical situations (A)”.

He also stated that he found two pathological issues focal emphysematous change and pulmonary edema in the lung tissues. He also stated that in liver there is macrovascular fatty changes. He also submitted that fatty tissues can be noted in those who usually consume alcohol. In re-examination, he further stated that focal dilations of emphysematous change can occur when a person tries to exceed against an obstruction and there was no pathological lesions in the lungs.

47. PW36 during cross-examination stated that a child can remember events that takes place when he is 3 years old. He was confronted with a question that British Book of Psychology states that age of memory retention is 3½ years, his answer was that he had not seen the said book. He further stated that he examined PW1 on 1/8/2013 and he could state the mental capacity of the child only at that time. He also states that suggestibility and tutoring cannot be ruled out.

48. PW37 had conducted post-mortem. In her evidence, she Crl.Appeal Nos.103 & 200/14stated that no injuries were found on the body. Flap dissection of neck revealed normal and intact neck structures. Air passages contained frothy mucus. Lungs congested and edematous, stomach contained yellowish viscid material having no unusual smell. Viscera and blood were preserved and sent for chemical analysis. Vital parts of the tissues were preserved for histopathological examination. Ext.P21 is the chemical analysis report which revealed Ethyl Alcohol in the viscera and blood. Blood contained 120.75 mg of Ehtyl Alcohol per 100 ml of blood. Ext.P28 is the pathology report and there was no evidence of significant pathological lesions to account for death from natural causes. In the final opinion, she stated that a definite reason as to cause of death cannot be stated. She further mentioned that the possibility of death from Ethyl Alcohol poison cannot be excluded. She further deposed that presence of non specific findings present on the body has to be co-related with the circumstances at the time of death, whereby certain unnatural causes cannot be ruled out, even if the autopsy findings are negative and the possibility of Ethyl Alcohol poison was not excluded at that time. The opinion had been furnished due to lack of information regarding the circumstances of death from any other cause. Crl.Appeal Nos.103 & 200/14 According to her, literature available would indicate that in some cases, alcohol can predispose the heart muscles to asphyxia and an intoxicated person during a struggle can become irresponsive and develop cardiopulmonary arrest and die with no anatomical cause found during autopsy. Prosecutor, thereafter asked whether the post-mortem finding was consistent with smothering with a soft material after administration of alcohol and her answer was that, a person under the influence of alcohol can be smothered with a soft material like pillow or bed clothing using less than moderate force without producing any injury, thereby presenting the findings as seen in this case. Prosecutor further asked regarding the findings consistent with the history of mechanical asphyxia by smothering and she answered that specific findings of smothering can be absent when soft materials are used. Non specific findings like congestive, blue finger nails, protrusion of tongue, dilation of pupils and congestion of brain and edema of brain and lungs and from examination and focal emphysematus changes seen on a microscopic examination can be seen. She further stated that blood alcohol in the body was found to be relatively high and can render a person under its influence depending on her physical condition, habitation etc. Such Crl.Appeal Nos.103 & 200/14 quantity of alcohol can cause muscular incordination and nausea and vomiting if one is not habituated to it. She further opined that in this case, smothering is sufficient in ordinary course of nature to cause death. She also stated that there is no evidence to prove any suicide attempt and the approximate time was 6 to 18 hours prior to 3.30 pm on 4/2/2006. In cross-examination, she admitted that there were no external injuries and nasal septum and nostrils appeared to be normal. There is no injury on lips, gums etc., but the tip of the tongue alone had protruded. When she was asked what were the signs of asphyxial death, she answered that cyanosis can occur when hemoglobin contents fall below 5 gm percentage. She also narrated the common external finding of asphyxial death. According to her, though such findings can be seen in asphyxial death, it is not necessary in every case as they depend on the mode of mechanical interference with respiration, the speed with which asphyxia is achieved and the fatal period. In death that has been instantaneous, no changes need be seen. During further cross-examination, she stated that, in asphyxial death, there could be specific as well as non specific signs. The non specific signs are signs which can be seen in other types of death as well. She further stated that in the absence of Crl.Appeal Nos.103 & 200/14 a specific history, circumstantial evidence as well as physical findings and with the knowledge that same condition and death can be achieved without any obvious findings, and it would be scientifically wrong to rule out the possibility suggested by any side. The suggestion of the defence was that she has given an opinion as suggested by the Investigating Officer, which she denied.

49. PW38 is Dr.B.Umadethan. The Investigating Officer, PW43 had approached him to verify whether the accused had telephoned him a few years back regarding the death of a women due to Ethyl Alcohol poisoning. He however stated that he does not remember whether it was the accused. The caller had identified himself as an Advocate. He asked him to discuss the case in person with the documents. The Investigating Officer had showed him the postmortem certificate Ext.P30 and Exts.P21 and P28. He was asked to given an opinion about the probable cause of death of the victim. His opinion is that “the salient feature of post-mortem certificate are those of asphyxia such as congestion of conjunctiva, protrusion of the tongue, blue finger nails congestion and edema of brain, frothy mucus in the air passages, congestion and edema of lungs, congestion of all the other Crl.Appeal Nos.103 & 200/14 internal organs etc. He further opined that the noteworthy point in the pathological report is the presence of focal emphysematous changes in the lungs. Those findings supports the post-mortem finding of asphyxia. He deposed that emphysema means dialation of the air sacks of the lungs at places. This is confirmative of the fact that the deceased had suffered asphyxia and that could be the cause of death. A question was asked as to whether the history of smothering with a soft material after administration of Ethyl Alcohol is consistent with the post-mortem findings, his answer was in the affirmative. During cross-examination, he stated that he had authored books on forensic science in which he had indicated death by asphyxia. He was asked as to what were the classical features of asphyxial death and his answer was “cynosis, petechial hemorrhage and tardieus spots, increased capillary permeability, persistent fluidity of blood, cardiac dialation etc. He said that the classic features develop when obstruction of breathing is maintained for about 3 minutes and not for 30 seconds as suggested by the defence. According to him, the colour of blood will be be dark due to lack of oxygenation. During further examination, he stated that abrasion on mouth and nostrils need not be present in case of Crl.Appeal Nos.103 & 200/14smothering if a smooth object is used for the act. The victim can struggle in case of smothering. He further deposed that 120.75 mg of alcohol in 100 ml of blood means that the person may show signs of intoxication if he is not habituated to alcohol. According to him, the person must have approximately consumed 180 ml of 43% of alcohol which can produce 120.75 mg of alcohol in 100 ml of blood. He also stated that 120.75 mg of alcohol in 100 ml of blood may not result in the person becoming unconscious. In order to cause unconsciousness, the alcohol level must be 300 to 400 mg per 100 ml. He further stated that if the mouth is opened forcibly, there may be injuries to the internal mucosa of the mouth and lips and gums even without applying sufficient force the mouth can be opened provided the nostrils are closed. He further opined that absorption of alcohol in blood takes 5 to 60 minutes for 60 ml of alcohol depending upon various factors such as food in the stomach, dilution of alcohol etc. He also stated that in dead body, pupils will always be dilated and it is not correct to say that he was expressing his opinion on the compulsion of the Investigating Officer. In re- examination, he stated that all the classical signs of asphyxia need not be present in every case and he also stated that 120 Crl.Appeal Nos.103 & 200/14 mg of alcohol in 100ml of blood in a person who is not habituated to alcohol can render that person incapacitated and unable to offer any struggle. He also stated that nasal bleeding can occur in a case of death by asphyxia.

50. PW39, PW40, PW41 and PW43 were the investigating officers. PW42 is the person who had executed the non-bailable warrant against the first accused. The accused was arrested on 17/6/2013. Ext.P40 is the non-bailable warrant and the report is Ext.P41.

51. The defence had examined three witnesses. DW1 is an autorickshaw driver who knew the accused as well as Reshmi. He had given evidence stating that he had dropped Reshmi to the house in Pallikkal once and when she came out, 1½ hours later, he found her behaviour very strange and he had informed the matter to the accused. He was cross-examined and later recalled and further examined. On verification of his license, passport etc it was found that whatever he had stated was wrong and that he had obtained a driving licence for running auto only on 8/7/2012. He had apologized to the Court and stated that he had testified at the instance of first accused and DW2.

52. DW2 had given evidence stating that 2 nd accused had Crl.Appeal Nos.103 & 200/14complained that Reshmi used to go out from the house in the morning to meet a lady at Pallikkal and returned late at night after consuming alcohol. On the date of death, he got information from the 2nd accused that Reshmi was lying unconscious in the bathroom. By the time he reached their house, she was taken to the hospital. He had gone to the hospital and took the 2nd accused to the Police Station at Kottarakkara. Since she was found to be not keeping well, she was taken to Pranavam hospital as advised by the police.

53. DW3 was examined to prove that there was a valid marriage between the first accused and Reshmi. He also deposed regarding the financial problems in the company. He stated that first accused absconded because he had constant threat from the debtors. On knowing about the incident, he also had gone to the hospital. He along with Lalu accompanied the accused to the police station and the matter was reported. A2 became unconscious and she was taken to the hospital. Reshmi’s relatives came to the police station and created a scene. He along with his sister-in-law and Reshmi’s children went to Reshmi’s house for the funeral. He did not enter the house on account of the strained relationship with PW2. He also deposed that Reshmi was leading Crl.Appeal Nos.103 & 200/14 a happy life with the first accused.

54. After considering the relevant aspects, which had been highlighted by the prosecution especially the motive, cause of death which was found to be by soft smothering, the dying declaration, extra-judicial confession, the oral testimony of PW1, the conduct of the accused and the false explanation which was given by the accused when questioned u/s 313 of Cr.P.C, it was found by the Court below that both the accused were guilty for having committed the offences for which they were punished.

55. From the evidence placed on record, the attempt of the prosecution was to establish that the first accused is a notorious individual, a person who tortures and assaults mentally as well as physically his wife, a person who assaults his son, a person who has relationship with many woman, a person who had defrauded many people, and has several creditors. To a certain extent, the prosecution was able to establish the character of the first accused through oral testimony of PW1 to PW3, PW11, PW14, PW15, PW18 and PW19. However, the question to be considered in the case on hand is whether he had committed murder of his wife or whether he destroyed the evidence or that he along with his mother has committed any offence as contemplated u/s 498A Crl.Appeal Nos.103 & 200/14 of I.P.C.

56. The cause of death of Reshmi is the moot point. PW37 after having verified the chemical analysis report and pathological report opined that the death might be on account of ethyl alcohol poisoning or rather ethyl alcohol poisoning cannot be ruled out, but no poison had been detected in the chemical analysis report. There is evidence to prove presence of ethyl alcohol while the viscera of the victim was examined. How did she consume ethyl alcohol is the question to be answered. Defence has a case that she used to consume alcohol whereas prosecution case is that, on the previous date on which she died, first accused forcibly gave her a liquid which apparently is alcohol and the dress MO1, MO2 and MO3 showed the presence of ethyl alcohol. To prove the aforesaid fact, prosecution relies upon the oral testimony of PW1 alone, who is a child witness.

57. It is settled law that evidence of a child witness cannot be discarded merely for the reason that he/she is a child. If the child has given answers without any confusion and had withstood the cross-examination, there is nothing wrong in the Court placing reliance upon the evidence of the child witness. But, in this case, yet another factor assumes much relevance. The child Crl.Appeal Nos.103 & 200/14 was 3½ years of age at the time when the incident happened. The investigating officer who had questioned the child did not attempt to record the statement of the child immediately. During his evidence, PW34 has stated that he had only put a few questions and since the child was not in a mental state to give answers, he thought of questioning the child later. It is relevant to note that the said child was not questioned for another 7 years and only when PW43 came into the picture, that the child was examined and a statement was recorded. Until such time, the child was remaining with the grandparents of Reshmi and there is every chance that the child had been tutored to state such things which he had spoken before Court.

58. In K.Venkateshwarlu v. State of Andhra Pradesh (AIR 2012 SC 2955), the Apex Court while placing reliance on the evidence of a child witness held that it is safe and prudent to look for corroboration for evidence of a child witness from the other evidence on record because while giving evidence, a child may give scope to his imagination and exaggerate his version or may develop cold feet and not tell the truth or may repeat what he has been asked to say, not knowing the consequences of his deposition in Court. Careful evaluation of the evidence of a child Crl.Appeal Nos.103 & 200/14 witness in the background and context of other evidence on record is a must before the Court to rely on it.

59. Of course, the learned Public Prosecutor has a case that the child’s deposition had been corroborated by the evidence of PW9. who is a neighbour. Child apparently stated that on the previous day, he was with PW9 who had given her payasam and later mother had come and had taken him back home. In fact, PW9 was questioned by PW39 between 10/8/2008 and 8/11/2008 and her statement was very much available while questioning PW1.

60. It is settled law that the investigating officer must record the statement of eyewitnesses to the occurrence at the earliest opportunity after registration of the case. If there is failure to record the statements for a considerably long period, the evidentiary value of such statements may be diminished. Whether delay in recording such statements are fatal to the prosecution depends on the facts and circumstances of each case. In Ganesh Bhavan Patel v. State of Maharashtra (AIR 1979 SC 135), the Apex Court observed as under:-

“Normally in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such Crl.Appeal Nos.103 & 200/14 witnesses precedence over the evidence of other witnesses.”

61. However, during investigation process, it is always necessary that the statement of witnesses are to be recorded at the earliest. Delay in recording such statements may result in embellishments or additions or manipulation to the prosecution case.

62. PW1 deposed that the liquid was administered forcibly by A1, and his mother was beaten up. In which event, definitely there will be some injuries seen on the body of the victim. According to PW1, he had shown the manner in which mouth of his mother was opened forcibly by A1 and the liquid was poured into her mouth. Definitely she would have struggled, she would have objected to it, but, on the next day while conducting post- mortem, PW37 could not find any internal or external injury on the deceased. That apart, PW1 in his evidence also stated that he saw his mother bleeding from her nose in which there could have been some internal injury which also was not seen during autopsy. No trace of blood was identified in any of her dresses or even in the scene of occurrence. In the light of the aforesaid facts, it is not safe to rely upon the oral testimony of PW1 to prove that the accused had administered alcohol to Reshmi.

63. Even assuming that alcohol was administered to Crl.Appeal Nos.103 & 200/14 Reshmi by the first accused, apparently the cause of death is not on account of alcohol content in her body. No poison was detected in her body by the forensic/chemical examiners. According to the prosecution, she died due to soft smothering by a cloth, a pillow case or a soft substance. In order to prove the theory of smothering, PW37 and PW38 were examined. Both of them opined that if the victim is in an inebriated condition, death could be caused by soft smothering and the victim dies due to asphyxia. It could be seen that asphyxial death is a theory, that the prosecution has brought in finally when they were at dark regarding the cause of death. The accused was arrested in a cheating case and later he had violated the conditions of bail. The investigating Officer, PW43, sought for cancellation of bail and the accused was arrested. A polygraph test was conducted which did not yield much result. Death by asphyxia due to soft smothering was approved by an expert PW38 Dr.Umadethan. They have arrived at such a conclusion due to the fact that there was no other ailments or conditions by which death could occur due to natural causes. If death is not caused due to natural causes, it could only be on account of asphyxia and certain symptoms of asphyxia was also found. In fact, according to Crl.Appeal Nos.103 & 200/14 PW40, during his investigation from 27/8/2010 to 17/3/2011, PW37 had opined that death could be due to asphyxia. PW38 is an expert who had not witnessed the post-mortem, but he had given opinion based on the documents made available to him. During evidence of PW37 and PW38, they were asked regarding the classic symptoms of asphyxial death which they had narrated. But admittedly none of the classic symptoms of asphyxial death were present in the victim and the only reason to arrive at such a conclusion is on account of the fact that no other natural causes were found.

64. The learned counsel for the appellant placed reliance upon the judgment of the Apex Court in Subramaniam v. State of Tamil Nadu [(2009) 14 SCC 415] wherein the Apex Court had occasion to consider a case of asphyxial death. Specific reference is made to Modi’s Medical Juisprudence and Toxicology 23rd Edition and it is held at paragraphs 15, 17, 18 and 23 as under:-

“15. In the author’s opinion, to come to a definite conclusion it is very essential to look for evidences of violence in the shape of external marks surrounding the mouth and nostrils or on inside the mucosal surface, or on the chest. According to the learned author, circumstantial evidence should always be taken into Crl.Appeal Nos.103 & 200/14 consideration to establish the proof of death from suffocation.”

“17. We wish the expert would have been forthright in her view in regard to the cause of death. A different conclusion was required to be arrived at keeping in view the fact that a large number of symptoms were absent which ordinarily point out to the cause of death of asphyxia by smothering. Most of the symptoms noticed by Modi should have remained present. There was frothy fluid discharge of blood from mouth and nose. However, no frothy fluid blood was found on the pillow. It may not be imperative but that could have been a lead to a fairly definite opinion. It is in the aforementioned situation, the learned Sessions Judge opined that death might not have been caused by asphyxia, stating:

“In the present case there is reasonable doubt in regard to the cause of death of the deceased and it is not safe to rely upon the evidence of PW 8 solely for the purpose of coming to the conclusion that the deceased’s death is proved by the prosecution to be homicidal. While viewing on that basis, PW 10, the medical officer in her evidence had mentioned as detailed below: Generally during the time of asphyxia the eyes will be open and the tongue will be protruding outside. Further the right side of the heart might be full of blood and the left side being empty. Further at the time of asphyxia, the kidneys also should be found distended and likewise the brain. Generally on account of asphyxia and death is being caused Tardieu’s spot should be in the eyes.

Further at the time of asphyxia there should be hybakia should be found. (Hybakia means the oxygen particles Crl.Appeal Nos.103 & 200/14 will be lesser in number in the blood.) Further the face and head will be found distended. Synochiam with numerous petichia should be found. Further there should be mucus in the mouth and throat. Further generally during the time of asphyxia, there should be alviovis and idimafluid in the lungs. Further there should be camaris with collappus with intersavin enpiceomia. But the aforesaid signs were not found in the dead body and therefore there was no opportunity for the deceased to die on account of asphyxia.

18. The learned Judge noticed that PW 10 was specific in her statement that paleness in the brain could not have been noticed as it had liquefied by that time. It was also found that PW 10 had deviated from her earlier opinion and stated that it was not correct to say that no opinion of cerebral anoxia could be given or arrived at in the case of liquefaction of the brain. No saliva, blood and tissue cells were found on the pillow; no scratches, distinct nail marks, or laceration of the soft parts of the victim’s face was noticed. It was not brought to notice that pillow was a soft one or not. No bruising or laceration was found in the lips, gums and tongue.” “23. So far as the circumstance that they had been living together is concerned, indisputably, the entirety of the situation should be taken into consideration. Ordinarily when the husband and wife remained within the four walls of a house and a death by homicide takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in the absence of any evidence of violence on Crl.Appeal Nos.103 & 200/14 the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and the husband alone was responsible therefor.”

65. The symptoms which had been noticed by PW37 are also symptoms which could be seen in other instances as well. That is the reason why the symptoms are classified differently in case of sure asphyxial death and symptoms which are common in most of the cases of death. Soft smothering in asphyxial death is a theory which can normally happen. But in the case of an adult, there will be certain specific symptoms when force is being applied to cause death. PW37 and PW38 were of the opinion that since the victim was under the influence of alcohol, a soft smothering would have been enough to ensure her death. But this is only a theory and cannot be taken for granted for arriving at such a conclusion. The learned Public Prosecutor while placing reliance upon the judgment in Anant Chintaman Lagu v. State of Bombay (AIR 1960 SC 500) submitted that in a case where the allegation was that death was caused due to poisoning and in the medical evidence it is not found so, the accused could still be convicted for murder. But that was a case where the accused himself was a medical man. He brought the deceased to the hospital. He gave a misleading name to cover her identity, Crl.Appeal Nos.103 & 200/14 that he gave a wrong age and history for her treatment, that he wrote a letter suggesting that she had a brother in Calcutta who did not exist and finally he abandoned the corpse to be dealt with by the hospital as an unclaimed body. The said case cannot be equated to the factual circumstances available in this case. In this case, various circumstances that had been projected by the prosecution could not be proved.

66. Yet another circumstance which had been highlighted and argued by the Prosecutor was that the accused being present in the house at the relevant time, he is bound to explain the cause of death. Of course, this is a case in which the presence of accused in the morning hours is proved by the oral testimony of witnesses who are neighbours and it was the accused 1 and 2 along with others who had taken the victim to the hospital.

67. The learned Public Prosecutor had placed reliance on the judgment in Trimukh Maroti Kirkan v. State of Maharashtra [(2006) 10 SCC 681] in order to contend that when the accused was present in the house, what happened to the victim in his house is a matter to be explained by him in terms of S.106 of the Evidence Act. Trimukh Maroti Kirkan [supra], was a case in which the prosecution case was that the appellant’s Crl.Appeal Nos.103 & 200/14 wife died on 4/11/2006. There is evidence to show that she was being ill-treated and harassed for non-payment of money. She used to inform her family members regarding the ill-treatment and harassment. She was often beaten up and was not provided food. She was taken back home and was again taken to the appellant ‘s house and the in-laws were asked not to ill-treat her. A few months thereafter, he heard that she died due to snake bite. Case was registered u/s 174 Cr.P.C. Post-mortem examination conducted on the body of the victim revealed that she died due to asphyxia as a result of compression of neck. Thereafter the case was taken up and the accused was charge sheeted u/s 302 of I.P.C. Post-mortem also revealed certain other injuries on the body of the victim. There was no eyewitness to the incident and the case rested on circumstantial evidence alone. It was held that where an accused is alleged to have committed murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime, they were seen together or the offence took place in the dwelling home where the husband normally resides and he does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong Crl.Appeal Nos.103 & 200/14 circumstance which indicates that he is responsible for commission of the crime. It is also held that in a case based on circumstantial evidence, when an incriminating circumstance is put to the accused, and the accused either offers no explanation or offers an explanation, which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete.

68. On the other hand, the defence while placing reliance on the judgment in Joydeb Patra v. State of West Bengal [2013 Crl.L.J. 2729] wherein the Apex Court after relying upon the judgment in Sucha Singh. v. State of Punjab [(2001) 4 SCC 375] and Vikramjit Singh v. State of Punjab [(2006) 12 SCC 306] argued that S.106 of the Indian Evidence Act does not relieve the prosecution to prove its case beyond all reasonable doubt. Only when the case has been proved, the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same.

69. The Court below, in fact, accepted the principle of soft smothering and found that since in the dresses MO1 to MO3 of the deceased ethyl alcohol was detected, it is possible that soft smothering could have been done using either MO1, MO2 or MO3. Crl.Appeal Nos.103 & 200/14 In fact, the prosecution does not have a specific case as to how the soft smothering was done. That apart, the defence had also taken up a contention that MO1 to MO3 were sent for chemical analysis after 7 years and there is every possibility for having fabricated the same. Otherwise, there is no reason why presence of ethyl alcohol is detected even after such a considerably long period. Of course, during the evidence of PW20, he says that he received 5 sealed parcels on 10/9/2013 based on which he had prepared Ext.P11 report. While being examined, even in the chief examination itself, he stated that blood was not detected in any of the items as reported in Ext.P12. He further stated that the period of retention of ethyl alcohol molecules in items like MO1 to MO3 will depend upon various circumstances such as atmospheric temperature, humidity, whether it was exposed to direct sunlight and if the alcohol is mixed with water. In fine condition, ethyl alcohol could be detected even after years. The Prosecutor had also put questions to him as to how the ethyl alcohol is denatured, he stated that for denaturing the same, ethyl alcohol is added and coloured dye like methane blue and aniline blue is added. Sometimes, denature is done by adding benzodite. When asked what the colour of alcohol is if methane Crl.Appeal Nos.103 & 200/14 blue or aniline blue is added, he stated that the liquid would be blue.

70. PW29 has given evidence stating that he had examined the bathroom and conducted benzidine examination of the floors and wall of the bathroom, but he could not find any trace of blood or any incriminating articles. The presence of ethyl alcohol in the dresses MO1 to MO3 of the deceased would only prove that she had consumed alcohol but it does not prove the fact that alcohol was forcibly administered to her unless the version of PW1 is believed. PW1’s evidence is not supported by any forensic evidence as there is no physical injury on the victim, but for the fact that there is evidence to prove that ethyl alcohol in her system and that too a quantity required for inebriation.

71. In the light of the aforesaid discussion, we do not think that any materials had been brought out to infer a forcible administration of ethyl alcohol and the consequent soft smothering as alleged by the prosecution.

72. The prosecution further placed reliance upon the dying declaration in the form of Ext.P4 and the oral evidence of PW18 and PW19. The learned Public Prosecutor placed reliance onState of U.P. v. Ramesh Prasad Misra and Another [(1996) Crl.Appeal Nos.103 & 200/14 10 SCC 360], wherein the Apex Court held that S.32(1) of the Evidence Act is wide enough to include statements of deceased regarding the circumstances of the transaction which resulted in his death i.e., the motive behind the criminal act in question. It was further held that when the deceased had informed the witnesses of the ill treatment meted out to her, due to her inability to secure the articles, presumption could be raised u/s 113B of the Evidence Act. That was a case of dowry death where the appellant had committed murder of his wife. She was four to six weeks pregnant. She died due to asphyxia by strangulation as found by PW1 Doctor, who conducted autopsy. Thereafter, the dead body was burnt and the entire body was burnt except the feet. The facts of the said case has no application to the facts of the present case. Ext.P4 is a photostat copy of a complaint allegedly written by the victim and submitted to the police on 22/1/2006. In Ext.P4, there is reference that she married the first accused based on a love affair at a temple on 10/1/2002 without the consent of her parents. Though she had requested to register the marriage, accused 1 and 2 did not permit. She has two children. First accused is now residing with PW14 which was consented to by A2. A2 is trying to evict them from their house. Crl.Appeal Nos.103 & 200/14 When she goes from the house, all rooms are locked except one room and even the kitchen is closed. She is unable to give even a glass of hot water for her children. A1 was caught with PW14 in a hotel at Trivandrum. Both of them had collected lacks of rupees from various persons claiming to be for the purpose of a project. Therefore, she sought for a request that she should be permitted to live with her husband and she should not be forced away from her house. Apparently, there is nothing in Ext.P4 in the form of a dying declaration. Further, it is only a photocopy and there is no evidence to prove that the said complaint was filed before any police officer. PW11 says that in 2013, she had handed over copy of the said letter to PW43. Apparently, Ext.P4 only indicates about the difficulty she faced on account of A1 having relationship with PW14 and A2 forcing her to move out of the matrimonial home as she wants A1 to continue the relationship with PW14. Though much had been argued by the learned counsel for the appellant and the defence and the Court below had also placed reliance on Ext.P4, nothing turns out in Ext.P4 to indicate that Reshmi apprehended that she would be killed by her husband and therefore Ext.P4 has absolutely nothing to do in the matter. Relevancy of such statement would arise only when statement is Crl.Appeal Nos.103 & 200/14 made either regarding the cause of death or as to any circumstances of the transaction which resulted in her death. At best, Ext.P4 can be utilized for the purpose for saying that PW11 had interfered in the matter and a complaint was given to the police, but, as already stated, there is no record of any such complaint being filed before the police and therefore no reliance could be placed on Ext.P4 for any purpose whatsoever. The Court below itself has found that the declaration which she has made in terms of Ext.P4 or the testimony of PW18 and PW19 was not under circumstances where she was foreseeing her immediate death. She was only apprehending that something may happen to her under the circumstances in which she was living.

73. Yet another circumstance that has been highlighted by the prosecution is the extra-judicial confession allegedly made by the accused to PW11 and PW14.

74. The trial Court has believed the evidence of PW11 and PW14 to arrive at a conclusion that the statements given by them amount to extra-judicial confession. We do not think that on a perusal of the evidence of PW11 or PW14, any of the statement of the accused which they have stated would form an extra- judicial confession.

Crl.Appeal Nos.103 & 200/14

75. In Tejinder Singh v. State of Punjab [(2013) 12 SCC 503], the Apex Court held that if the disclosure of extra-judicial confession is not made within a reasonable time, and the delay in informing the police regarding the same has not been properly explained, it is not safe to rely upon the said extra-judicial confession. That was a case in which there was 16 days delay to disclose the extra-judicial confession.

76. In fact, in Crl.Appeal No.918/13 decided by this Court on 4/10/2018, in Arun and another v. State of Kerala, a Division Bench of this Court in which one among was a party, had occasion to consider the evidentiary value of extra-judicial confession. After referring to the Apex Court judgment in Narayan Singh v. State of Madhya Pradesh (AIR 1985 SC 1678), it was held that the evidentiary value of extra-judicial confession depends upon the nature of the circumstances, the time when the confession was made and the credibility of the witness who speaks to such confession.

77. In Podyami Sukada v. State of M.P. [(2010) 12 SCC 142], Apex Court held that the evidentiary value of extra-judicial confession depends upon the trustworthiness of the witness before whom the confession is made and that law does not Crl.Appeal Nos.103 & 200/14contemplate that the evidence of an extra-judicial confession in all cases should be corroborated.

78. In Gura Singh v. State of Rajasthan [(2001) 2 SCC 205], the Apex Court held that if the extra-judicial confession is made voluntary and it is not under coercion, inducement or promise of favour, the same can be the sole basis of conviction.

79. We have already narrated the evidence of PW11. While being cross-examined, she denied having given a statement as Ext.D11. Ext.D11 would show that she had given a statement that the accused had come to her and stated “she had gone”. Then she asked her “have you killed”. Thereafter when she asked for details, he said, “Early morning Reshmi fell in the bathroom and was lying unconscious. On seeing the same, she was taken to hospital and Doctor said that she is already dead”. But her version in the evidence was totally different from Ext.D11. In her evidence she states that the accused said “it so happened” and that he asked for her help. At any rate, it would not give any indication about an extra-judicial confession. Court below committed serious error in relying upon the same as extra-judicial confession.

80. In the evidence of PW14 also, there is absolutely Crl.Appeal Nos.103 & 200/14 nothing to indicate the alleged extra-judicial confession. In the evidence of PW14, she only stated that accused told him that Reshmi had gone to take a bath in the early morning stating that she was going to temple. For sometime, she did not open the door. A1 therefore kicked open the door. Reshmi was sitting in the closet nude. She was unconscious. He called the people nearby and she was taken to hospital. A1 told her that she died of cerebral hemorrhage. There is absolutely nothing in her statement to infer an extra-judicial confession.

81. Yet another circumstance projected by the Court below was regarding the explanation given by the first accused to various persons about the death of Reshmi. We do not think that any such statements of the accused as spoken to by the witnesses have any bearing on the primary question as to whether he was responsible for her death. Even the Forensic Surgeons were unable to find out the cause of death and the investigating agency could arrive at a possible view only after several years. Therefore, even the accused may not know what exactly was the cause of death and taking into account his nature as projected by the prosecution, it is possible that he may give different versions as well. But none of such statements can be Crl.Appeal Nos.103 & 200/14 treated as a conduct which would lead to an inference that he is responsible for the death of Reshmi.

82. One of the main circumstances which the prosecution places reliance upon is the motive. The Court below points out that one of the main motive of the first accused was that he had an impression that he was trapped into getting married with Reshmi. After marriage, it was understood that Reshmi’s family did not have any assets. Court below placed reliance on the evidence of PW5, the husband of PW3. He deposed that he received a call from one Nair and was told that he had married from Poilakada family and they do not have any asset. According to him, from the voice he heard, it is that of the first accused. During cross-examination, he stated that he does not remember the date on which his statement was recorded. Suggestion of the defence was that his statement was recorded on 17/8/2013. He deposed that it might be a nearby date. He further deposed that he was seeing A1 for the first time in Court and according to him, he had heard his voice in television and therefore he had identified the same. It is a very curious answer. PW5 sees A1 only for the first time in Court and to say that he had identified his voice since he heard his voice in television cannot be Crl.Appeal Nos.103 & 200/14 believed. Even otherwise, he being the son-in-law of PW2, there is every reason for him to give such an evidence and apparently the said family was in loggerheads with A1.

83. Court below also finds that from the evidence of PW14, PW16 and PW21, it is clear that the first accused was longing for wealth. There cannot be any dispute about the said fact as the evidence indicates that he was trying all sorts of ventures to make money. It is further held that continuation of the relationship with PW14 is also a motive for committing the murder and finally that he had given an offer to Reshmi that he would conduct a customary marriage. It is stated that A1 had a liking to PW14, which is evident from the deposition of PW15 also, who is the husband of PW14. Hence, it was planned that Reshmi should be avoided and for that purpose, he had planned to kill his wife. He married her thinking that she comes from an affluent family and he thought that he may also get part of the wealth which his wife may get. But unfortunately, the parents of Reshmi did not support the marriage and they did not care to give much concern, after the couple got married. A1’s idea was to make money and he got the support from PW14 and in that relationship, he thought of doing away with Reshmi. PW15 also Crl.Appeal Nos.103 & 200/14 deposed that the reason for his separation with PW14 was the involvement of first accused. But when he was confronted with the pleading in the petition which he filed before Court for getting a divorce, his allegation was that PW14 was having relationship with another person by name Vijayan. The prosecution also has a case that the first accused promised to enter into a customary marriage with Reshmi and for that reason she was very much happy. PW11 deposes to the aforesaid fact and it was on the day when the marriage was to be solemnized that Reshmi died. According to the prosecution, the attempt of A1 in offering to enter into a customary marriage was only to pacify Reshmi, but, he never intended to do the same, and on the day, when she was ready to have a customary marriage, she was killed. According to the defence, already the marriage was registered by executing an agreement and a customary marriage was performed as evident from the testimony of PW17 and, therefore, there was no reason why another marriage had to be performed.

84. Even if the prosecution is able to establish that the first accused was having an intention to marry PW14, unless the prosecution is able to establish that death of Reshmi was caused at the hands of A1, the same cannot be treated as the motive Crl.Appeal Nos.103 & 200/14and that by itself may not be enough to implicate the accused for the crime. Therefore, while considering motive as well, the ultimate question would be whether Reshmi died at the hands of the first accused.

85. Yet another circumstance which was relied upon by the prosecution and found by the trial Court is regarding the conduct of the accused. According to the prosecution, the accused were playing a drama after having committed the murder of Reshmi by A1. He asked his mother to call the neighbours. At the time when PW4 came to the scene, who was the first to arrive there, Reshmi was sitting in the closet and the first accused was found holding her. The second accused, had in fact, told PW4 that Reshmi was in the bathroom and they are unable to open the bathroom. It is in evidence that the bathroom could be opened from either side. Therefore, the statement of A2 that the bathroom could not be opened is not believable. But, one aspect which has been highlighted by the defence was that when PW4 came to the scene, she did not see the deceased sitting in the closet and A1 holding her. In her previous statement to the police, she had stated that when she came to the house, A1 was taking Reshmi to the bedroom. Therefore, PW4 was made to improve her case Crl.Appeal Nos.103 & 200/14 during evidence and that part of the statement that she saw the accused holding Reshmi inside the bathroom while Reshmi was sitting in the closet is an embellishment and a material contradiction. Thereafter, Reshmi was taken to the bedroom and water was sprinkled on her face. Since there was no response, at the instance of the neighbours, she was taken to the hospital. In the meantime, PW6, a nurse by profession had checked the pulse of Reshmi and she could not locate pulse and she thought that Reshmi had already died, but she did not mention the same to any person. Reshmi was initially taken to a nearby hospital and the Doctor on examining her asked her to be taken to the Taluk Hospital. Prosecution has a case that while proceeding to the Taluk Hospital, the accused asked the driver of the vehicle to take a deviated route. PW10 was also a passenger in the said vehicle. He got down at a junction at Kulakkada. He went home, changed his dress and came in a motorbike. Eventhough he reached the hospital, the jeep reached only after 2 minutes, and he was told that at the instance of accused the jeep had come through another road. Learned Public Prosecutor argued that the whole intention of the accused was that even if Reshmi was not dead, if the vehicle is delayed, she may die enroute and that is the reason Crl.Appeal Nos.103 & 200/14 for taking such a longer route. But none of the witnesses examined in the case would say that the jeep had taken a longer route. This argument is based on PW10’s statement that jeep reached 2 minutes after he reached the place. But it could be seen that there were others also in the jeep who were all neighbours and if it was a longer route, they would not have permitted the same, and none of them has stated that it was a longer route.

86. Yet another circumstance which had been pointed out by the prosecution is that immediately after knowing about the death of Reshmi in the Taluk Hospital, A1 and A2 were not seen which itself indicates their involvement in the crime. A1 was absconding and A2 had come back to the house only after 10 days. In the meantime, the children were sent to their grandparents’ house by the neighbours. A1 and A2 also did not attend the cremation of Reshmi. It is true that the absence of A1 and A2 immediately after knowing that Reshmi was dead from the Taluk Hospital, is a circumstance against them. It is also pointed out that first accused was absconding. But from the records or from the material documents, we do not find that the police had in fact searched for the accused at any point of time. Crl.Appeal Nos.103 & 200/14 No summons or notice has been issued to him during the aforesaid period. Reshmi’s death was considered to be an unnatural death and other than examining a few witnesses by PW34, he did not do anything for 3 months while he was in office. In the meantime, the scientific evidence available did not indicate that death was a homicide. The explanation of PW37 that death might be on account of soft smothering had come only after about 4 years when PW40 examined PW37. In between, PW41 based on his investigation incorporated S.498A of I.P.C. But still, no attempt had been made to summon the accused or question him. If he was absconding, steps would have been taken to issue an arrest warrant against him, but no such steps were taken. Only at a late stage that the investigating agencies found that the death could be caused by soft smothering and that too by PW43 that they thought of the first accused. Of course, the conduct of the accused, his behaviour and the manner in which he had behaved subsequent to the incident are all incriminating factors, which may be an additional link to the chain of circumstances. But, as already mentioned, unless we are able to pinpoint the actual cause of death and whether the accused had any involvement in the same, a mere suspicion regarding his Crl.Appeal Nos.103 & 200/14previous or subsequent conduct by itself will not be enough to implicate him in an offence of murder.

87. In Jose v. Sub Inspector of Police, Koyilandy and Others (AIR 2016 SC 4581), the Apex Court held 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 its case in the realm of “may be true”, but has to essentially elevate it to the grade of “must be true”. Further, it was held that, 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.

88. Therefore, we are of the view that the accused is entitled for the benefit of doubt and he is entitled for acquittal for the offence u/s 302 of I.P.C.

89. The accused had also been convicted for the offence u/s 201 of I.P.C. Allegation of the prosecution was that he had destroyed the evidence in his house. Apparently, there is no such evidence other than an assumption that he had destroyed the Crl.Appeal Nos.103 & 200/14 evidence. Such an issue arises for consideration only if we find him guilty u/s 302 of I.P.C. There is absolutely no material to indicate that accused had destroyed any evidence. According to the prosecution, the bottle in which he had brought a liquid was not seen thereafter. If the contents of the liquid was in the dress of the deceased as spoken to by the prosecution witnesses, necessarily some liquid might have fallen to the ground as well. Even according to the prosecution, the accused did not attempt to destroy the dress of the deceased. That apart, if force had been used by the first accused to pour the liquid into the mouth of Reshmi, some visible marks would have been found in her body, which is also lacking. We have already discussed the evidence of PW1 and found that the said evidence cannot be admissible on account of various factors. Under such circumstances, we are of the view that the accused cannot be found guilty u/s 201 of I.P.C.

90. Both the accused had been convicted for offence u/s 498A of I.P.C. S.498A reads as under:-

” 498A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years Crl.Appeal Nos.103 & 200/14 and shall also be liable to fine.

Explanation.–For the purpose of this section, “cruelty” means–

(a any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

Though PW2, PW3, PW18 and PW19 has a case that the first accused had been subjecting Reshmi to cruelty, first of all, those are all information received by them from Reshmi and it is hearsay evidence which is not acceptable by a Court of law. But they have said that they have seen some marks in the body of the victim. PW3 says that she had seen some bruises in the body of the victim. But it is relevant to note that at the time of postmortem, no injuries were found on the body of the victim. That apart, none of the ingredients of S.498A had been brought out in evidence. The Court below had proceeded to arrive at a conclusion that an offence u/s 498A is made out on materials which are not admissible in evidence especially the hearsay information received by some witnesses from Reshmi. Therefore, we do not find any evidence to convict the accused u/s 498A as Crl.Appeal Nos.103 & 200/14 well. The accused are entitled for acquittal.

The appeals are allowed. The conviction and sentence passed by the learned Sessions Judge is hereby set aside. The first accused is acquitted of the charges u/s 302, 201 and 498A of I.P.C. and that of the second accused u/s 498A of IPC. The first accused/appellant in Crl.Appeal No.200/14 shall be released forthwith, if his presence is not required in connection with any other case. With reference to the 2nd accused/appellant in Crl.Appeal No.103/2014, she is already on bail and her bail bond shall stand cancelled.

Sd/-

A.M.SHAFFIQUE JUDGE Sd/-

                                                A.M.BABU

Rp               //True Copy//                   JUDGE

                  PS to Judge

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