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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 919 OF 2013

JOSE @ PAPPACHAN …APPELLANT

VERSUS

THE SUB-INSPECTOR OF POLICE,

KOYILANDY & ANOTHER …RESPONDENTS

J U D G M E N T

AMITAVA ROY, J.

The appellant stands sequentially convicted by the both

the Courts below under Section 302 of the Indian Penal code

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

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

Rs. 10000/-.

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

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

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

Court however acquitted both of them of the charge under

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

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

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

seeks panacean intervention in the instant appeal.

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

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

respondents.

4. To appropriately outline the factual premise, apt it

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

projections.

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

marriage with the deceased on 19.6.1986 as per their customary

rites whereafter they set up their matrimonial home to start with

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

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

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

harass his wife both physically and mentally whenever she used

to express her reservations and objections to such alliance.

According to the prosecution, under the influence of the said

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

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

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

relationship, the appellant plotted to eliminate the deceased

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

thereafter accompanied Neena, the deceased, for a spiritual

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

their stay thereat and returned home on 19.9.2000. The

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

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

deceased inside the room of his house, strangulated her by

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

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

brutally murdered her. The prosecution has imputed that in

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

acquitted, had assisted him.

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

Cheriyan @ Papputy with the Koonachundu Police Station

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

were arrested on 21.9.2000 and 15.11.2000 respectively. On

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

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

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

to the Sessions Court, Kozhikod.

7. The accused persons denied the charge and claimed to

be tried, whereafter the prosecution examined 25 witnesses

including the doctor, who performed the post-mortem

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examination on the dead body as well as the investigating

officer. Several documents were also proved and exhibited. The

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

They stood by their denial and refuted the correctness of the

incriminating circumstances with which they were confronted.

They also examined three witnesses in defence.

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

evidence of the record and after analysing the rival contentions,

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

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

Neena and convicted him under Section 302 IPC and sentenced

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

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

his acquittal before the High Court, which by the verdict

impugned, has sustained the determination of the Trial Court.

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

expedient to notice the defence plea for a purposeful

appreciation thereof.

10. It is the assertion of the appellant that being

compelled by financial distress and with the consent and

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

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12.9.1997 in search of better pastures, after resigning from his

service from the State Police Department. He claimed that his

relationship with his wife had always remained very fond and

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

endorse this contention, he referred amongst others to the

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

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

sustenance of the deceased and the children and that on his

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

accompanied to a divine retreat on 16.9.2000 to Potta,

wherefrom they returned on 19.9.2000.

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

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

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

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

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

mentioned that in the process, he met Mullakkara Kunhumon,

Sainaba, Jameela and Palliparambil Thankan and finalised with

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

Thankan went to the house of Edattankuzhi Jose and Cheriyan

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

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thereafter proceeded towards his house and on the way was

pushed down by two persons hurriedly coming from the opposite

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

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

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

the appellant requested Joy (PW7) and Cheriyan @ Papputty

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

12. These two persons after reaching the house of the

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

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

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

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

house and that Joy and Cheriyan @ Papputty were holding her

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

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

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

rushed Neena to the Medical College Hospital where she was

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

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

have foisted a false case against him.

13. As referred to hereinabove, the First Information

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

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

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

appellant) was sitting in the tea shop of Pulluparambil Mathew

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

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

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

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

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

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

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

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

having raised alarm by that sight, the appellant and his

neighbourers including Kunjumon, Regi and Thankan arrived at

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

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

where she was declared dead.

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

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

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

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

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

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

Benny to come hurriedly. When the witness reached the place

from where the appellant had shouted, he found the appellant

asking somebody to stop and also abusing someone. When

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

had pushed him down and had ran away. They thereafter

engaged themselves in search of the persons refereed to by the

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

brother Benny started feeling sick for which Kunjumon, who

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

him to the hospital. The appellant simultaneously asked the

witness to go to his house and fetch the medical prescription

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

Papputty then went to the house of the appellant and when

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

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

deceased in a hanging position from a hook atop the kitchen

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

both of them loudly raised alarm and raised Neena upwards by

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

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the appellant and others came running by hearing their cries

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

saree, brought down the body and then they took Neena

thereafter in a jeep to Thalayada Hospital where the nurse there

recommended that she be taken to the Medical College Hospital,

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

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

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

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

to be substantially consistent.

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

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

awakened by PW7 Joy to be told that Neena had committed

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

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

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

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

being questioned, the appellant divulged that they had returned

the same evening as Neena was adamant to come back.

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

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

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

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

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

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

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

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

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

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

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

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

be taken to the Medical College Hospital. When they reached

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

be brought dead.

18. The witness mentioned about the injuries above the

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

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

appellant told him that those might have been caused in the

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

information about the incident was lodged on the next day by

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

confirmed that the appellant had later married one lady named

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Darly and that he had been living with her thereafter.

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

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

resigned from his service in the police department and had gone

to the Gulf leaving behind Neena and children in the house

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

the father of the appellant about 200 meters away from his

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

brother of the appellant, had been then suffering from epilepsy

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

thereof.

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

was sought to be discredited by referring to his earlier

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

imputed by the defence as the principal witnesses PW1

Cheriyan, PW6 Mathew and PW7 Joy had been examined twice

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

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

that the earlier statements had been tailored as desired and

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

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

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

21. PW6 Mathew deposed on oath that at the relevant

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

near the house where the appellant and the deceased used to

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

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

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

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

some time they dispersed therefrom.

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

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

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

seemed to shout abuses at someone. The witness along with

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

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

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

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

assembled there, then tried to search for these persons but

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

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

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

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his ancestral house to fetch tablets for Benny whereupon he

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

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

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

house. The witness stated that when he returned with the

tablets, the appellant enquired about the admit card and

prescription for extending treatment to Benny. On the request

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

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

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

entered the house and found Neena hanging from hook in the

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

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

whereupon the appellant and PW1 accompanied them back to

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

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

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

mentioned that he had given the earlier statement as per the

instructions of the appellant and that when he was interrogated

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

correct facts.

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

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

Neena hanging, she was struggling and that they raised her

upward and raised alarm on listening which the appellant and

others had come running. He however denied the suggestion

that he had departed from the earlier statement on being

influenced by the family members of the Neena.

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

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

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

persons namely; Kunjumon and Palliparambil called him and

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

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

reached the shop by PW6 Mathew with his jeep and found

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

met the appellant who told him that Jackson and Mathew had

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

would be taken for medical treatment. The witness further

stated that when Jackson and Mathew returned with the

medicines, the appellant enquired of them about the admit card

and prescription which they stated had not been brought. On

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

house, whereupon the witness and PW6 proceeded towards the

house of the appellant. This witness stated that on reaching

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

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

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

house and eventually found Neena hanging from the roof of the

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

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

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

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

appellant stopped a car and sent Benny together with Jackson

and others to the Medical College Hospital. The witness stated

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

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

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

This witness admitted that the Investigating Officer had

recorded his statement twice. He conceded that in the earlier

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

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

was made on the instruction of the appellant.

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

first statement was recorded on 22/23.9.2000 at the Police

Station and by then the appellant had been arrested on

21.9.2000. This witness too was confronted with his earlier

statements.

26. PW20 Dr. Hitesh Sankar had conducted the

post-mortem examination on the dead body and recorded

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

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

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

bone of the left side, he deposed about contusions and

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

mentioned about scalp contusions as internal injuries.

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

chief, the findings in the post mortem were consistent with

death due to strangulation followed by hanging and further that

the facial injuries were suggestive of attempted smothering. He

thereafter answered in the affirmative to various leading

questions to indicate amongst others that the linear abrasion

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

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

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the leading queries that the fracture of thyroid bone could be

due to strangulation.

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

categorical terms conceded that he could not say as to whether

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

conceded that he had not noticed any blood stain on the

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

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

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

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

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

presence of other attendant signs in case of death due to

asphyxia preceded by smothering. He however affirmed that the

ligature mark or the abrasion found on the neck was suggestive

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

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

during hanging. He admitted of not having mentioned any

injury of nail mark in the post-mortem certificate.

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

the broken pieces of glass bangles had been recovered and

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

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

disclose any blood stain on the plastic rope. Though was

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

was clarified that no definite opinion could be given as to

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

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

blood stain on the nylon rope and instead added that neither

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

particle thereof on the neck of the deceased.

30. Though the prosecution had examined several other

witnesses, their testimony being not of any decisive relevance

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

however, in his evidence amongst others admitted that the nylon

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

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

31. The appellant in his statement under Section 313

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

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

wishes of Neena and due to financial stringency and had gone

to Saudi Arabia on 12.9.1997 and had returned on 21.8.2000.

According to him, there was an abiding and affectionate

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relationship between the couple and that they had two sons

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

him while he was abroad, amongst others to demonstrate the

veracity of his statement about the warm relationship which he

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

Neena and the children for their sustenance and also referred to

the relevant documents in endorsement thereof. He mentioned

about their visit to Potta on 16.9.2000 and their return on

19.9.2000. He narrated the defence version as adverted to

herienabove and claimed that death of Neena had occurred due

to suicide committed by her and denied the charge levelled

against him and his brother Benny. He however admitted that

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

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

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

towards him.

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

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

was working in the production section at Fortune Hotel,

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

he resided with his mother and his younger brother named

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

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

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

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

stay with his mother and younger brother in their house at

Edattankuzhiyil. He confirmed that the relationship between

his mother and father was very cordial. He denied the

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

of fact expressed ignorance about her. The witness admitted

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

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

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

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

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

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

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

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

and endearing.

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

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

from the bus from Potta and were proceeding towards their

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

returning home with some household articles and thus he

accompanied his mother back home while his father, the

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

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

mother prepared snacks, whereafter she told her to carry some

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

witness however added that though he waited for his parents

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

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

34. In cross-examination, though this witness

categorically denied the suggestions put on behalf of the

prosecution to project him to be untruthful, he disclosed that

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

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

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

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

them.

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

replication of the defence version as already outlined and does

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

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28.2.2000 and 7.6.2000 written by the deceased to him and

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

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

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

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

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

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

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

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

hand. He thereafter shouted to attract people so as to

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

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

pertaining to the events that occurred thereafter leading to the

discovery that Neena had hanged herself from the hook of the

ceiling of the work area of their house.

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

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

other persons. He admitted as well his second marriage with

Anna @ Darly.

37. DW3 Babu stated about the search made in the

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

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

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

brother of the appellant while the search was in progress.

38. As the impugned judgement would disclose, the High

Court took note amongst others of the factum of second

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

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

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

arranging the stay of the children at the ancestral house but

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

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

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

testimony was discarded as not of a prudent son otherwise

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

Court denounced the DW1 to be untruthful, for having

expressing his ignorance about the second wife of the appellant

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

there is nothing on record to demonstrate that the appellant did

not accompany his wife to the house that evening, whereafter

she was not found alive.

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

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Court accepted the other perceived incriminating circumstances

against the appellant namely his illicit intimacy with Anna@

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

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

bangles of the deceased from the dining room indicating a

struggle, nail mark found on the forehead of the appellant

suggesting resistance from the deceased and want of

satisfactory explanation as to under what circumstances the

deceased was found hanging in the house of the couple.

40. The High Court rejected the defence story of two

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

the evening and also commented on his conduct of not rushing

to the house as a prudent husband and instead arranging for

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

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

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

the High Court thus deduced that the death of Neena was

homicidal and affirmed the conviction of the appellant as

recorded by the Trial Court.

41. In this contentious backdrop, Mr. Basant has

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

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occurrence and a convincing and complete chain of

circumstantial evidence unerringly attesting the guilt of the

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

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

Asserting that the evidence as a whole does unmistakably

demonstrate that the deceased had committed suicide, the

learned senior counsel has urged that the acquittal of the

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

IPC also belies the imputation of his extra-marital association

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

him, the narration in the first information report authored by

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

earliest point of time though authenticate the correct state of

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

improve thereon by re-recording of the statements of these

witnesses along with that of PW7 was only to frame the

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

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

the interrogation of these witnesses after time lag of almost four

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

lays-bare the stratagem of the investigating agency to prosecute

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him on otherwise unfounded allegations. The learned senior

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

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

examination is consistent with the innocence of the appellant,

it is apparent from the documentary evidence more particularly

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

there was a subsisting loving and affectionate relationship

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

the medical evidence having failed to convincingly prove that

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

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

the adjoining dining room pales into insignificance. It has been

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

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

understanding, overwhelmingly establishes his innocence, there

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

and against his mother.

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

erred in discarding his evidence being unworthy of credit,

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

pretentious in faking ignorance of the lady named Anna @ Darly

Page 27 27

and her alleged extra-marital relationship with the appellant.

The learned senior counsel has maintained that in absence of

any concrete evidence of the alleged illicit nexus between the

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

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

urged that the circumstantial evidence relied upon by the

prosecution is incoherent and insufficient in form, continuity

and content and falls short of the legally prescribed standards

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

been placed on the decisions of this Court in Sharad

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

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

(Crl.) 254

44. In refutation, the learned counsel for the respondents

has maintained that the circumstantial evidence available on

the record does amply establish the complicity of the appellant

in the gruesome murder of the deceased, his wife by

strangulation with the aid of a nylon rope seized and then

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

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

state counsel, inter alia is unerringly deducible from his

Page 28 28

unusual conduct of not rushing back home even after being

informed of the incident and instead in arranging for a

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

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

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

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

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

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

same evening. According to the learned state counsel, the

testimony of DW1, the son of the appellant is wholly

untrustworthy, it being partisan and untruthful and in that

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

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

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

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

argued that the medical evidence fully substantiates the charge

of murder levelled against the appellant and the prosecution

having been able to prove that the motive therefor being to

eliminate the deceased in order to facilitate the consummation

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

interference with his conviction is warranted in the facts and

Page 29 29

circumstances of the case. The fact that the appellant

eventually married the said lady, amply establishes the charge

as well, he urged.

45. The arguments exchanged have received our anxious

consideration cumulatively with the evidence on record.

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

endeavour of the prosecution, however has been to demonstrate

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

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

appellant had committed the murder of his wife Neena by first

strangulating her with the nylon rope that was recovered from

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

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

ligature. This inference, according to the prosecution, is

inevitable from the attendant facts and circumstances. The

quality and the decisiveness of such evidence, therefore, would

be of determinative relevance.

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

examined twice by the investigating agency at the interval of

almost four years, we have been left unconvinced by the

peripheral variations in their statements so as to infer the

Page 30 30

complicity of the appellant on the basis of their attempted

departure from their versions recorded at the earliest point of

time. Though these witnesses have been sought to be

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

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

their testimony qua the incident and the attendant facts and

circumstances has remained the same barring a few

inconsequential inconsistencies. Noticeably, there is no reason

forthcoming for re-examining these witnesses after almost four

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

The plea of false implication at the instance of the inimical

members of the family of the deceased in this context thus

assumes significance.

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

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

had reached the house of the appellant to fetch the medical

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

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

through the door and found her in a hanging posture with

movements, whereupon they raised alarm for which the

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

Page 31 31

deceased was brought down by cutting the saree. Though the

conduct and the movements of the appellant prior thereto had

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

estimate does not irrefutably establish his culpability.

48. The medical evidence as elaborated hereinabove also

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

The unchallenged expositions of the doctor performing the post-

mortem examination highlighting the absence of the

characteristic attributes attendant on death due to homicidal

hanging following strangulation further reinforce the possibility

of suicide. The absence of definite medical opinion about the

homicidal death of the deceased in our comprehension is a

serious set back to the prosecution.

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

conjunction with the testimony of the doctor does not link the

appellant directly or indirectly with the actual act leading to the

unnatural death of the deceased. In absence of any persuasive

evidence to hold that at the relevant time the appellant was

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

burden on him as contemplated under Section 106 of the

Page 32 32

Evidence Act. The consistent testimony of the appellant and his

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

from Pota, the deceased was made to accompany DW1 back

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

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

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

return home, consolidates the defence plea of innocence of the

appellant.

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

with the statement made by the appellant under Section 313

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

testimony of DW1 as untrustworthy, he having feigned ignorance

about the lady Darly with whom his father allegedly had extra

marital affairs and was construed to be partisan towards the

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

unable to lend our concurrence to these reasonings. This

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

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

assessment expectedly would not have lied for the appellant, his

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

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

Page 33 33

was his own mother.

51. The prosecution plea that the appellant had resigned

from the service in the police department to move out to

Jeddah/Saudi Arabia with the intention to perpetuate his illicit

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

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

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

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

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

anguished outbursts of a wife otherwise expected in such a

situation or any fervent insistence for early return. Instead the

contents thereof reveal narration of mundane happenings of day

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

for enhanced savings together with somewhat intimate feelings

expected of a married couple physically estranged by

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

suggest any bitterness, disappointment, frustration and

seething indignation of the deceased for the appellant being

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

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

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

Page 34 34

records relied upon by the defence to demonstrate that the

appellant while abroad used to remit money for the sustenance

of the family, has not been impeached.

52. On an overall consideration of the evidence available

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

appellant guilty of the charge of murder of his wife by

strangulating her with the nylon rope as seized and then

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

The circumstantial evidence adduced by the prosecution in our

assessment falls short of the requirement in law to return a

finding of guilt against the appellant without any element of

doubt whatsoever. The fact that both the accused persons had

been exonerated of the charge of cruelty under Section 498A

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

appellant in the perpetration of the crime had been fully

acquitted by the courts below of all the charges also takes

away the wind from the sails of the prosecution.

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

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

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

Page 35 35

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

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

prosecution, the court has a duty to ensure that mere

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

in a situation where a reasonable doubt is entertained in the

backdrop of the evidence available, to prevent miscarriage of

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

a doubt essentially has to be reasonable and not imaginary,

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

impartial, prudent and analytical mind, judged on the touch

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

postulation in criminal jurisprudence that if two views are

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

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

to the accused ought to be adopted.

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

jigsaw puzzle in which several frames are missing to permit an

unreserved opinion of the complicity of the appellant.

55. The inalienable interface of presumption of innocence

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

Page 36 36

has been succinctly expounded in the following passage from the

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

page 445:

“The presumption of innocence states that a person

is presumed to be innocent until proven guilty. In

one sense this simply restates in different language

the rule that the burden of proof in a criminal case is

on the prosecution to prove the defendant's guilt. As

explained above, the burden of proof rule has a

number of functions, one of which is to provide a rule

of decision for the factfinder in a situation of

uncertainty. Another function is to allocate the risk

of misdecision in criminal trials. Because the

outcome of wrongful conviction is regarded as a

significantly worse harm than wrongful acquittal the

rule is constructed so as to minimise the risk of the

former. The burden of overcoming a presumption

that the defendant is innocent therefore requires the

state to prove the defendant's guilt.”

56. The above quote thus seemingly concede a

preference to wrongful acquittal compared to the risk of

wrongful conviction. Such is the abiding jurisprudential

concern to eschew even the remotest possibility of unmerited

conviction.

57. This applies with full force particularly in fact

situations where the charge is the sought to be established by

circumstantial evidence. These enunciations are so well

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entrenched that we do not wish to burden the present narration

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

58. Addressing this aspect, however, is the following

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

edition by Ian Dennis at page 483:

“ Where the case against the accused depends wholly

or partly on inferences from circumstantial evidence,

factfinders cannot logically convict unless they are

sure that inferences of guilt are the only ones that can

reasonably be drawn. If they think that there are

possible innocent explanations for circumstantial

evidence that are not “merely fanciful”, it must follow

that there is a reasonable doubt about guilt. There is

no rule, however, that judges must direct juries in

terms not to convict unless they are sure that the

evidence bears no other explanation than guilt. It is

sufficient to direct simply that the burden on the

prosecution is to satisfy the jury beyond reasonable

doubt, or so that they are sure.

The very high standard of proof required in criminal

cases minimises the risk of a wrongful conviction. It

means that someone whom, on the evidence, the

factfinder believes is “probably” guilty, or “likely” to

be guilty will be acquitted, since these judgements of

probability necessarily admit that the factfinder is

not “sure”. It is generally accepted that some at least

of these acquittals will be of persons who are in fact

guilty of the offences charged, and who would be

convicted if the standard of proof were the lower civil

standard of the balance of probabilities. Such

acquittals are the price paid for the safeguard

provided by the “beyond reasonable doubt” standard

against wrongful conviction.”

Page 38 38

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

decision in Sharad Birdhichand Sarda (supra) construed to be

locus classicus on the relevance and decisiveness of

circumstantial evidence as a proof of the charge of a criminal

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

paragraph 153 of the decision is extracted herein below.

“153.(2) The facts so established should be

consistent only with the hypothesis of the guilt of the

accused...they should not be explainable on any

other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive

nature and tendency.

* * *

(5) there must be a chain of evidence so complete as

not to leave any reasonable ground for the

conclusion consistent with the innocence of the

accused and must show that in all human probability

the act must have been done by the accused.”

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

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

constituting circumstantial evidence ruled that in judging the

culpability of an accused, the circumstances adduced when

collectively considered must lead to the only irresistible

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

Page 39 39

question and the circumstances established must be of a

conclusive nature consistent only with the hypothesis of the guilt

of the accused.

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

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

imperatives of circumstantial evidence ruled that the same has

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

prosecution. It was underlined that such circumstantial

evidence should establish a complete unbroken chain of events

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

excluding all possible hypothesis of his innocence. It was held

further that in case of circumstantial evidence, each

circumstance must be proved beyond reasonable doubt by

independent evidence excluding any chance of surmise or

conjecture.

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

unhesitant opinion that the evidence adduced by the prosecution

constituting circumstantial evidence in support of the charge

does not furnish an unassailable basis to hold the appellant

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

Page 40 40

circumstances admit of a reasonable doubt in his favour.

63. The circumstances brought forth by the prosecution

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

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

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

therefore inclined to extend benefit of doubt to him. The

conclusions drawn by the courts below are not tenable on the

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

the conviction and sentence recorded by the courts below is

hereby set aside. The appellant be released from the jail

forthwith if he is not required in any other case.

…….....……………………..….J.

(PINAKI CHANDRA GHOSE)

……....……………………..….J.

NEW DELHI; (AMITAVA ROY)

OCTOBER 3, 2016.