IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
FRIDAY, THE 29TH DAY OF JULY 2022 / 7TH SRAVANA, 1944
CRL.A NO. 340 OF 2016
AGAINST THE ORDER/JUDGMENTSC 310/2015 OF III ADDITIONAL DISTRICT
COURT, KOLLAM
CP 4/2012 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, PUNALUR
APPELLANT/ACCUSED:

RENJITH, C.NO.724, CENTRAL PRISON, TRIVANDRUM

BY ADV SHERLYMOL THOMAS, STATE BRIEF

RESPONDENT/COMPLAINANT

STATE OF KERALA REPRESENTED BY DGP, HIGH COURT OF

KERALA

SMT.S.AMBIKADEVI, SPECIAL GOVERNMENT PLEADER FOR

ATROCITIES AGAINST WOMAN AND CHILD

THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON

29.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl Appeal No.340 of 2016

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K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.

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Crl Appeal No.340 of 2016
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Dated, this the 29th day of July, 2022.

JUDGMENT

K.VINOD CHANDRAN, J

The prosecution case is one of uxoricide and the accused was convicted

and sentenced to life imprisonment. There is no clarity as to the motive,

which, in the charge framed by the court speaks of the accused having

doubted the parentage of the child, while the prosecution witnesses speak of a

quarrel just prior to the alleged crime, when the deceased wife accused the

husband of infidelity; specifically a mobile conversation with another girl.

The accused stood trial in which the prosecution arrayed twenty witnesses,

through whom were marked Ext.P1 to P21, including Ext. P14 series. The

prosecution also produced MO1 to MO17. The defense did not examine any

witness but marked two contradictions as Ext.D1 and D2, respectively from

the prior statements of PW7 and PW9.

2. Adv. Sherlymol Thomas, learned State Brief, argued for the appellant

and Smt. Ambika Devi S., learned Special Government Pleader (Attrocities

against Women and Children and Welfare of Women and Children) argued

for the respondent. According to the learned Counsel for the appellant, the
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prosecution has miserably failed to establish the crime. There is absolutely

no motive established and the FIR registered was of an unnatural death. The

wife had committed suicide by pouring kerosene over herself and lighting

herself ablaze. It was the accused husband who hollered out and attracted the

attention of the neighbors. The accused saved the child and brought it outside

the house and everybody gathered were convinced that it was a suicide. The

learned Counsel would accuse the police of having arrested the accused

immediately and tortured him in custody, falsely accusing him of uxoricide.

The mere fact that he was present in the house and that he had purchased

kerosene cannot solely bring home a conviction under Section 302. It is

evident that the ration card belongs to the mother in law, who was in inimical

terms with the accused and its recovery has not been proved. There is also

considerable suspicion regarding the arrest on 13.03.2011, as is projected by

Ext.P14 series. The accused had a valid explanation and it was his case that

the immediate relatives of his wife had not tended to her properly, during her

pregnancy, which resulted in her succumbing to depression, leading to the

eventual suicide. The learned Counsel relied on Satye Singh v. State of

Uttarakhand (2022) 5 SCC 438 to assail the reliance of the trial Court on

Section 106 of the Evidence Act. The accused has to be given the benefit of

doubt, asserts the learned Counsel for the appellant.

3. The learned Special Government Pleader however points out that a 23

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year old woman was killed by her own husband. There is proved, a history of

marital discord and the accused was a quarrelsome person. Immediately

prior to the crime, there was a quarrel between the husband and wife and

there is even premeditation discernible from the fact that the accused

purchased 5 ltrs of kerosene from the ration shop just prior to the crime. It

was also asserted that a mere glance at the postmortem examination report

would clearly show that the theory of suicide can be totally eschewed. There

was no burns on the lower half of both legs and feet. Obviously the woman

was lying down when kerosene was poured over her upper body and the

person set ablaze. The ration card by which the kerosene was purchased was

recovered from the crime scene and the ration dealer clearly spoke of the

purchase made by the accused. There is no satisfactory explanation by the

accused who was with the deceased in the house, the scene of crime. The

accused, after the crime, had absconded from the place. The conviction and

sentence are to be upheld.

4. Admittedly the poor woman met her death on the night of the crucial

day and the cause of death, as deposed by PW15, based on the postmortem

examination, certified by Ext.P7, was due to burns involved in approximately

85% of body surface. The testimony of PW15 was that the antemortem

injuries where, dermoepidermal burns involving whole body, sparing lower

half of both legs and feet. Despite the doctor having testified that the death
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was due to burns, she specifically stated in cross examination that she cannot

say how the injury was occasioned. Despite the assertion of the State that the

fact of no burns having been suffered on the lower half of both legs and feet

would commend any court to eschew the theory of suicide; no query was put

to the expert doctor who was examined in court. We are unable to find from

the testimony of the doctor or the postmortem examination certificate that

the death was even a homicide. That alone would not absolve the accused

from the crime, since, the death could either be a suicide or homicide and we

have to look at the other circumstances proved by the prosecution. If such

circumstances together form a complete chain, with every link in place,

enabling a finding that accused is the perpetrator of the crime; despite the

doubt arising from the medical evidence, there could be a conviction as

against the accused.

5. PW 1 is the neighbor who was also the first informant. He spoke

differently from his First Information Statement, marked as Ext.P1.

According to him, at around 11-11.30, while he had retired for the night, he

heard a scream from the neighboring house wherein the accused and the

deceased were residing along with their infant child. He opened the front

door and enquired, when the accused answered and asked PW1 to come fast.

When he reached the neighboring house, he saw the infant child lying on the

eastern corner of the house. He attempted to take the child to his own house
Crl Appeal No.340 of 2016

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when a number of locals gathered there to whom he entrusted the child. This

was contrary to his statement in the FIS that first his daughter had proceeded

to the nearby house and then summoned him. In the FIS he also said that,

when he reached the house of the accused, he saw the infant child lying in a

cloth and accused was standing in front of the house creating a ruckus. He

saw smoke and fire coming from inside the house and he took the infant in his

arms and receded to the background. By the time the neighbors reached

there and the fire was doused, he also spoke of having seen the charred body

of the deceased. Before court, he denied that he saw any fire or smoke or the

body of the deceased. However, Ext.P1 was accepted by him and the

contradictions have no relevance as regards the crime proper.

6. The husband and wife were said to have been staying in the house of

PW5. PW2 was the father of PW5, PW3, her husband and PW4, her brother.

All of them spoke of a quarrel in the house of the accused by around 9-9.30.

PW5, her husband, brother and father spoke of having intervened and

requested the accused not to create unnecessary trouble. According to the

witnesses, the deceased had quarreled with the accused, accusing him of

having talked with another girl on the mobile phone. It is very pertinent to

notice that the charge framed by the court, which is in accordance with the

final report, spoke of the motive, of the husband having doubted the fidelity of

the wife as also the parentage of the infant child. There is a totally new story
Crl Appeal No.340 of 2016

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projected before court which was also attempted to be proved through PW10,

an Attender in a Children's Hospital. PW10 however, denied any contact with

the accused and asserted that she had absolutely no acquaintance with the

accused. She spoke of having received two or three mistaken calls, but with

absolutely no connection to the accused. The Investigating Officer also did not

conduct any investigation regarding the call details of the mobile phone of the

accused. We need not tarry further on this aspect and suffice it to observe that

there is absolutely no motive established by the prosecution. The quarrel

prior to the alleged crime could either have led to a suicide or a murder, but

again the latter is not a reasonable inference from the facts so far disclosed.

Before we leave the issue, we cannot but notice that though by Ext.P4

mahazar a rent deed between PW5 and accused is alleged to have been seized,

no such rent deed was produced or confronted to PW5.

7. PW6 is the mother of the deceased. PW7, the brother and PW9, a

relative of the deceased. All of them spoke of the quarrelsome nature of the

accused, quite contrary to the testimonies of PWs 2 to 5, the immediate

neighbors of the accused. PW3 had employed the accused under him and was

quite satisfied with his character and conduct. PW6, 7 and 9 also spoke of an

instance when the accused had struck a blow on the mother in law. In any

event, the husband and wife had separated from the maternal home of the

wife and took up separate residence, where they were residing with their
Crl Appeal No.340 of 2016

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infant child. In this context we have to notice that the accused in his 313

statement, told the court that the immediate relatives of his wife refused to

properly tend to her during her pregnancy, which left her in depression.

According to him, even on the said night, his wife rued her fate and was

disappointed with the deplorable conduct of her people. The husband had

attempted to pacify her and they had retired for the night. Later he heard

some noise and woke up to see his wife ablaze, when he first took the child

outside, away from the blazing fire. He asserted that the wife committed

suicide.

8. PW8 is a Panchayat Member who witnessed the inquest, the report of

which was marked as Ext.P2. PW11 is the ration shop dealer from whom the

register and bill book of the ration shop was seized. Neither the original or the

copy of the said documents were confronted to the witness and he merely

marked Ext.P3 mahazar and deposed that the had taken back the register and

the bill book on a 3rd party mahazar, since the same was in regular use at the

ration shop, which mahazar was Ext.P3. According to him, both the accused

and his mother in law used to purchase ration articles from his shop. He also

deposed that since the card holder did not have power connection, there was

an allotment of 5 ltrs of kerosene. It was his specific statement that the

accused at around 7 p.m., on 9.3.2011, purchased kerosene in two jerrycans

and also told him that one of such jerrycans was for his mother in law. Here
Crl Appeal No.340 of 2016

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we have to notice the contention of the learned Special Government Pleader

that the ration card was recovered from the scene of crime. Ext.P8 is the scene

mahazar prepared by Pw19, Sub Inspector of Police. Ext.P8 speaks of the

ration card having number 1209040270 having been recovered from in

between the vessels kept on a wooden shelf inside the residential house of the

accused, which was a BPL Card. PW17 was a witness to Ext.P8 scene mahazar

which he confirmed to have signed. However none of the items seized as per

the scene mahazar, including the ration card was confronted to him or elicited

as having been recovered by PW19 from the scene of crime. The ration card, a

certified copy as verified from the original, was marked as Ext.P10 only

through PW19, the Sub Inspector of Police.

9. PW13 Village Officer prepared Ext.P5 scene plan and PW 14 Tahsildar

prepared Ext.P2 inquest report and seizure of MO4 to 6 from the dead body

by Ext.P6. PW16 is the scientific assistant who collected samples from the

scene of crime. PW18 is the Circle Inspector of Police who took over the

investigation on 11.3.2011. According to him, the ration card was seen from

the shop from which the accused purchased kerosene as described in Ext.P9

mahazar, contrary to the evidence of PW19. He also identified Ext.P4 rent

deed; which has to be noticed as only a mahazar seizing the rent deed. In this

context we have to also notice that the witness to Ext.P4 mahazar, PW12, or

PW5, the house owner who was the lessor, was not confronted with the rent
Crl Appeal No.340 of 2016

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deed. We also do not find the rent deed to be a document produced or

marked in the case. PW19 is the Sub Inspector of Police who conducted the

investigation on the basis of Ext.P12 FIR, registered under Section 174 Cr

P.C.; alleging just, an unnatural death. He identified the ration card as having

been seized by him from the scene of crime through Ext.P8 scene mahazar.

We already noticed that the said ration card was not put to the independent

witness to Ext.P8 scene mahazar, PW 17 or the seizure elicited from him.

10. According to the learned trial judge on an analysis of the evidence,

the prosecution has clearly proved, presumption (sic) of facts from which

reasonable inference can be drawn as to the existence of other facts. The

purchase of large quantity of kerosene and the quarrel between the accused

and the deceased are specifically projected, which coupled with the lack of

explanation according to the trial judge, drives the court to draw the only

possible inference, regarding the culpability of the accused. The trial Court

also relied on Section 106 of the Evidence Act to emphasise the absence of a

valid explanation from the accused. We are unable to subscribe to the said

findings of the trial judge. The ration card was not in the name of the accused

or the deceased and was in the name of the mother in law, PW6. PW6

admittedly was in inimical terms with the accused, thus putting to suspicion,

the possession of the ration card by the accused or the deceased. The name of

the deceased is seen in Ext.P10, copy of the ration card, but that does not
Crl Appeal No.340 of 2016

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prove the possession, since the ration card stands in the name of PW6 and the

other family members of the deceased are also included therein. It is in this

context that the recovery from the scene of crime assumes significance; which

however has not been established by independent evidence. At the risk of

repetition we notice that PW17, the witness to the scene mahazar was not

confronted with the ration card or the recovery of the card, from the scene of

crime, elicited in his testimony. More pertinent, is the fact that despite

examination of PW6, the holder of the Ration Card, no question was put to

her by the prosecution as to the possession of the ration card.

11. Even if we believe the testimonies of PW11, it only brings forth the

fact that the accused had obtained five litres of kerosene in two jerrycans.

Only one jerrycan was recovered from the scene of occurrence which

contained ½ ltr of kerosene, which is marked as MO17. MO16 is a one litre

plastic bottle containing 500 ml of kerosene. It has been established that the

house of the accused did not have a power connection and the purchase of

kerosene cannot be merely presumed to be for the purpose of committing the

alleged murder. The quarrel we noticed earlier was a petty squabble between

the couple which even the prosecution does not project as a motive. There is

no sign of any altercation occurred in the scene of crime and the fire has not

even singed the articles in the room. The motive projected by the

prosecution, of doubts of infidelity nursed by the accused, is not even

Crl Appeal No.340 of 2016

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attempted to be proved.

12. Now we come to the two circumstances of the accused having

absconded from the locality and the absence of an explanation. As for lack of

explanation, we cannot agree with the impugned judgment since there is a

possible explanation, in the S.313 statement, as put forth by the accused. In

any event, Satye Singh (supra) reiterated that Section 106 does not relieve

the prosecution of the burden to prove the case charged and it cannot lead to

the startling conclusion that in a murder case, the accused has to prove that

the crime was not committed by him. The burden, in a criminal case, never

shifts from the prosecution and when the circumstances proved unerringly

point to the guilt of the accused, the absence of a valid explanation becomes

another link in the chain of circumstances. On the question of whether the

accused absconded, the accused has a different version of being apprehended

on the same day and tortured in custody. Even if we disbelieve that, the mere

fact of the accused having absconded from the locality, soon after the crime,

cannot be the sole ground to convict the accused. Here, we also have to

observe that it was the accused who summoned the neighbors to his house

between 11 and 11.30 p.m. He also assisted the neighbors in dousing the fire

which is not the normal conduct of a person who has just set ablaze his wife.

We cannot find an unbroken chain of circumstances, linking the accused with

the crime nor even solitary links connecting the accused to the crime. The
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proof of presence of the accused in the house, the purchase of kerosene and

the petty squabble that took place just prior, cannot by itself result in a

conviction for murder.

Having gone through the entire evidence, we are of the opinion that

there is absolutely no evidence to establish the guilt of the accused. True, the

accused was present in the house and had absconded from the locality after

the death of his wife was detected. However, those circumstances alone

cannot be a reason to convict the accused for the offence, under Section 302

of the Penal Code. We, acquit the accused, giving him the benefit of doubt.

The gist of the judgment shall be sent to the prison, in which the accused is

incarcerated, for immediate release of the accused, if he is not wanted in any

other crime.

Sd/-

K.VINOD CHANDRAN, JUDGE

Sd/-

C.JAYACHANDRAN, JUDGE

uu
29.07.2022