Gopalram vs State by Inspector of Police

K.N. Basha, J.—The sole accused has come forward with this appeal challenging his conviction and sentence imposed by the learned

Principal Sessions Judge, Erode, by the judgment dated 26.8.2011 made in S.C. No. 12 of 2011 convicting him for the offence u/s 302 IPC and

sentencing him to undergo life imprisonment with a fine of Rs. 5000/- with a default sentence of rigorous imprisonment for six months. The factual

background of the case is narrated as hereunder:

(i) The accused is none else than the husband of the deceased Yogapriya. Both of them got married in the year 2005. P.W. 1 is the father of the

deceased. P.W. 2 is the mother of the deceased. P.W. 3 is the mother of the accused. P.Ws. 4 and 5 are also related to the accused. The accused

was a Marine Engineer and used to go to work frequently in the ship and he used to take his wife all along during his work. Both of them were

living happily as per the version of P.Ws. 1 and 2.

(ii) On the fateful date of occurrence, on 2.4.2010, while P.W. 1 was in his house, he received a phone call from P.W. 4/neighbour of the accused

at 7.30 a.m. and asked him to come to the house of the accused immediately. P.W. 1 went to the house along with his wife/P.W. 2 at 8.30 am.

There, he found his daughter deceased lying in a pool of blood on the floor. Immediately, he informed his relatives and friends. P.W. 14/Sub-

Inspector of Police, attached to Vellore police station received a phone call from P.W. 1 informing him that his daughter was murdered and lying

dead in a pool of blood. He has recorded the said message in his case diary and gave the message to the Inspector of Police over phone at 11.30

a.m. P.W. 14 went to the scene of occurrence. At that time, P.W. 1 was writing a report. P.W. 15 also, on receipt of the telephonic message

reached the scene of occurrence at 12 noon and received the report/Exhibit P-1 from P.W. 1 at the scene.

(iii) P.W. 15/Inspector of Police on his return to the police station registered the case at 12.15 noon on 2.4.2010 in Cr. No. 57 of 2010 for the

offence u/s 302 IPC. Exhibit P-19 is the Express FIR and he has sent the same to the Court. He has send messages to forensic expert and also

sent message for summoning sniffer dog including the photographer to come to the scene.

(iv) P.W. 15/Inspector of Police in continuation of his investigation went to the scene of occurrence once again at 1.15 p.m. He has prepared

Observation Mahazar-Exhibit P-2, Rough Sketch-Exhibit P-20 in the presence of witnesses. He recovered M.O. 1/blood stained mat, M.O.

2/blood stained pillow, M.O. 3/blood stained saree piece, M.O. 4/blood stained cement pieces, M.O. 5/sample cement pieces under Exhibit P-3

in the presence of witnesses. He has taken photographs with the help of photographer. He also examined photographer and received photographs.

M.O. 6 series are the photographs. He sent the material objects for chemical examination through Court. He held inquest on the dead body of the

deceased. Exhibit P-21 is the Inquest Report. He sent the body for post-mortem through the constable.

(v) Doctor/P.W. 9 attached to the Government Hospital, Erode conducted post-mortem on 3.4.2010 as per the requisition/Exhibit P-7. Exhibit P-

8 is the post-mortem certificate. He found the following injuries:

External Injuries:

(1) Lacerated injury left side eye-brow mark measuring 6 cm x 4 cm x 2 cm bone deep exposing bone.

(2) Nasal bone fracture bleed present.

(3) Lacerated injury right parietal and occipital region.

(4) Lacerated injury left cheek 4 x 2 x 1 cm.

(5) Lacerated injury right frontal bone 4 x 3 x 1

He has issued Exhibit P-9-final opinion opining that the deceased would have appeared to have died of head injury and due to shock and

hemorrhage.

(vi) On 15.4.2010, the accused surrendered before the Judicial Magistrate No. II Erode. P.W. 15 has preferred a petition for police custody of

the accused and taken the custody on 23.4.2010. In pursuance of the admissible portion of the confession recorded from the accused, he

recovered M.O. 8/Iron hammer, M.O. 9/Permudas and M.O. 11/Santro car bearing No. TN-01 -Q-7815 in the presence of Village

Administrative Officer/P.W. 8 under Exhibit P-5 and Exhibit P-6- Mahazars. He has sent the material objects for chemical examination through

Court and produced the accused before the Magistrate for judicial remand. He has received post-mortem certificate-Exhibit P-8 and final opinion

Exhibit P-9 and he has also received the chemical examination report-Exhibit P-12, serology report-Exhibit P-13 and viscera report-Exhibit P-16.

After completion of investigation, he filed final report against the accused on 6.8.2010 for the offence u/s 302 IPC.

The prosecution, in order to prove its case, examined P.Ws. 1 to 15, filed Exhibits P-1 to P-24 and marked M. Os. 1 to 14.

When the accused was questioned u/s 313 of Cr.P.C. in respect of incriminating materials appearing against him through the evidence adduced

by the prosecution, he has come forward with the version of total denial and he has not chosen to examine any witness and marked Exhibit D-1 on

his side.

The learned trial Judge on consideration and appreciation of the evidence adduced by the prosecution, has found the accused guilty for the

offence u/s 302 IPC and sentenced him as stated above. Hence the appeal.

Mr. S. Ashok Kumar, learned senior counsel appearing for the appellant, while assailing the impugned judgment of conviction, would put

forward the following contentions:

(i) The entire prosecution case rests on circumstantial evidence and the prosecution miserably failed to put forward clear and consistent

incriminating circumstances unerringly pointing out the guilt of the accused.

(ii) The prosecution has also failed to prove any motive against the accused, as the motive assumes importance in a case of circumstantial evidence.

(iii) The recovery of the Hammer, M.O. 8, at the instance of the accused is also doubtful as the Investigating Officer, P.W. 15 has summoned

P.W. 8, Village Administrative Officer, only for the specific purpose of arrest and recovery and he has not summoned any independent witnesses

who are available at the scene, as per the admission of the Village Administrative Officer, P.W. 8.

(iv) The learned Trial Judge erred in placing reliance on the alleged abscondance of the accused, as none of the witnesses spoken about the

abscondance of the accused.

Per contra, Mr. V.M.R. Rajendran, the learned Additional Public Prosecutor would contend that though there is no eyewitness to the

occurrence, the prosecution heavily placed reliance on the recovery of the Hammer/M.O. 8 at the instance of the accused. It is pointed out that the

Hammer/M.O. 8 is also found to have been stained with human blood containing the blood group of the deceased. It is further contended that the

prosecution version is also corroborated by the medical evidence through the Doctor/P.W. 9, who has conducted the postmortem. It is also

contended that the accused was the only person residing along with the deceased and he has not offered any probable explanation for the death of

the deceased and he had absconded after the occurrence and surrendered before the Magistrate Court only on l5.4.2010 i.e., 13 days after the

occurrence and there is no explanation for such abscondance by the accused.

We have given our careful and anxious consideration to the rival contentions put forward by either side and perused the entire evidence available

on record including the impugned judgment of conviction.

The fact remains that the entire prosecution case rests on circumstantial evidence and the prosecution placed reliance on the following

circumstances, viz.,

(i) Motive;

(ii) The occurrence said to have taken place inside the house of the accused and no explanation from the accused for the death of the deceased;

(iii) The recovery of the Hammer, M.O. 8, alleged to have been used by the accused for causing the death of the deceased; and

(iv) Abscondance of the accused after the occurrence.

Before proceeding to consider the above said circumstances, it is relevant to highlight the principles laid down by the Hon''ble Apex Court. In

Krishnan Vs. State represented by Inspector of Police, , the Hon''ble Apex Court held as hereunder:

This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the

following tests:

(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;

(iii) 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 none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of

the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

It is equally well settled by the Hon''ble Apex Court in Gade Lakshmi Mangraju @ Ramesh Vs. State of Andhra Pradesh, that,

In a case based on circumstantial evidence one circumstance by itself may not unerringly point to the guilt of the accused. It is the cumulative result

of all circumstances, which could matter. Hence, it is not proper for the Court to cull out one circumstance from the rest for the purpose of giving a

different meaning to it.

By keeping the above said principles in our mind, let us assess and analyze the circumstances relied by the prosecution one by one.

I. Motive

The first circumstance relied by the prosecution is the motive. It is pertinent to note that the only motive alleged against the accused was found

in the charge framed by the Trial Court and there is absolutely no evidence whatsoever available against the accused. In the charge, it is stated that

the accused called the deceased for intercourse and the deceased refused, which resulted in wordy quarrel and due to provocation, the accused

inflicted injuries on the deceased with the Hammer, M.O. 8, resulting her death. For establishing motive, the prosecution has examined P.Ws. 4

and 5, but both of them have given a total go-by to their earlier version and turned hostile. The learned Trial Judge has presumed motive on the

ground that only the deceased and the accused were residing in the house and what had happened between them, the accused alone was aware

about it. It is needless to state that motive, being a double-edged weapon, could cut both ways, helping or harming both the prosecution and the

defence. It is also relevant to state that in circumstantial evidence, motive assumes importance and failure to establish the same would certainly

raises serious doubt about the prosecution case, in the absence of clear and clinching circumstance put forward by the prosecution. As far as the

instant case is concerned, we have already pointed out that the prosecution miserably failed to prove the motive.

II. The occurrence said to have taken place inside the house of the accused and no explanation from the accused for the death of the deceased.

As far as the second circumstance is concerned, it is to be stated that merely because the accused being the husband of the deceased and he

happens to be with the deceased, he cannot be mulcted with the offences alleged against him in the absence of any other incriminating

circumstances adduced by the prosecution. It is well settled that suspicion, however strong, cannot be substituted for legal proof.

III. Recovery of the hammer, M.O. 8, alleged to have been used by the accused for causing the death of the deceased.

As far as this circumstance is concerned, the prosecution case rests on the evidence of the Village Administrative Officer, P.W. 8 and the

Investigating Officer, P.W. 15. It is pertinent to note that P.W. 8 admitted in his cross examination that he was summoned by the police only for

the specific purpose of being present at the time of recording the confession and the recovery. It is also admitted by P.W. 8 that the alleged

confession was recorded from the accused only at the police station and as such, it is crystal clear that the police has summoned only P.W. 8, an

official witness and no other independent witness summoned by the police at the time of recording the confession.

Yet another important factor to be borne in mind of this Court regarding recovery is that the Hammer, M.O. 8, was recovered pursuant to the

alleged admissible portion of the confession of the accused under Exhibit P-4. P.W. 8 also admitted that he has to maintain diary for recording

day-to-day events and he has no documents to show that he went to the police station or for recovery of articles. P.W. 8 has admitted that he

went to the police station and thereafter to the place where M.O. 8 was recovered. It is pertinent to note that he has admitted that he was not able

to state the exact location and he has also not aware about the village name. Though it is stated by P.W. 8 that the Hammer, M.O. 8, was

recovered near a temple, he has stated that he was not aware about the place where the temple was situated. P.W. 15, the Investigating Officer,

admitted that the police station was surrounded by number of houses and shops. Though he has stated that he has called someone as a witness but

the said witness refused, he has not recorded the same in the confession statement recorded from the accused. In view of the aforesaid infirmities,

we are of the considered view that it is unsafe to place reliance on the alleged recovery of the Hammer, M.O. 8, pursuant to the alleged admissible

portion of the confession given by the accused.

IV. Abscondance of the accused after the occurrence.

At the outset is to be stated that none of the witnesses examined by the prosecution, whispered a word about the alleged abscondance of the

accused. The Hon''ble Apex Court in S.K. Yusuf v. State of West Ben-gal (2012) 1 MLJ (Crl) 127 has held as hereunder:

25.... It is a settled legal proposition that in case a person is absconding after commission of offence of which he may not even be the author, such

a circumstance alone may not be enough to draw an adverse inference against him as it would go against the doctrine of innocence. It is quite

possible that he may be running away merely on being suspected, out of fear of police arrest and harassment. (Vide Matru alias Girish Chandra

Vs. The State of Uttar Pradesh, Paramjeet Singh @ Pamma Vs. State of Uttarakhand, and Rabindra Kumar Pal @ Dara Singh Vs. Republic of

India, Thus, in view of the law referred to hereinabove, mere abscondance of the appellant cannot be taken as a circumstance which gives rise to

draw an adverse inference against him,

The Hon''ble Apex Court has referred the above said decision in another latest decision in Dr. Sunil Clifford Daniel Vs. State of Punjab,

wherein it is held as hereunder:

This Court has considered this issue time and again and held that the mere act of absconding, on the part of the accused, alone does not

necessarily lead to a final conclusion regarding the guilt of the accused, as even an innocent person may become panic-stricken and try to evade

arrest, when suspected wrongly of committing a grave crime; such is the instinct of self preservation.

The principles laid down by the Hon''ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case, as we

have already pointed out that there is absolutely no evidence available on record to state that the accused was absconding except the fact that he

has surrendered before the Magistrate 13 days after the occurrence. Even assuming, if not admitting, that the accused has absconded, no adverse

inference could be drawn against him and on that score he cannot be mulcted with the liability of causing the death of the deceased.

In view of the aforesaid reasons, we are of the view that the impugned judgment of conviction is unsustainable in law. Accordingly, the appeal

is allowed and the conviction and sentence imposed on the appellant by the learned Sessions Judge, Erode, in S.C. No. 12 of 2011 dated

26.8.2011 is set aside. The appellant is acquitted of all the charges levelled against him. Fine amount paid, if any, is directed to be refunded to the

appellant. It is reported that the appellant is in jail. The Superintendent, Central Prison, Coimbatore is directed to release the appellant/accused

forthwith, unless his presence is required in connection with any other case.