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PETITIONER: R. RAJENDRAN NAIR

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       14/10/1997

BENCH: M.K. MUKHARJEE, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                THE 14TH DAT OF OCTOBER, 1997 Present:               Hon’ble Mr. Justice M.K. Mukherjee               Hon’ble Mr. Justice K.T. Thomas M.F. Vinod, Adv. for the appellant Ms. Malini  Poduval, Adv.  (G. Prakash)  Ad.  (NP)  for  the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered:                       J U D G M E N T MUKHERJEE.J.      Rajendran Nair, the appellant before us, along with his brother-in-law Krishnan  Nair was  placed on trial before an Additional Sessions  Judge of  Thiruvananthapuram to  answer charges under  Sections 302  and  201  I.P.C.  and  Sections 302/34 and  201/34  I.P.C.  respectively.  The  trial  Court convicted them  of both  the offences  and aggrieved thereby they preferred an appeal in the High Court. While acquitting Krishnan Nair,  the High Court upheld the convictions of the appellant. Hence this appeal at his instance. 2.   The appellant  married Lalithambika  (the deceased)  on October 26,  1984 and  a daughter  Remya was born to them on August 13, 1985. They used to reside in a small house on the northern side  of Kozhiyodu  Lane within  the limits  of the Thiruvananthapuram  Corporation.   Krishnan  Nair   and  the parents of the appellant lived in separate houses nearby. 3.   (a) According  to the  prosecution case on November 16, 1989 around  8.00 P.M. the appellant slapped the deceased on her cheek  and when  she sat  down on the floor he kicked on her chest,  as a result of which she became unconscious. The appellant then  went to  the house  of his  parents with his daughter and  leaving her behind came back to his house with Krishnan Nair.  With his  assistance he took his wife to the kitchen and  suspended her  from the  rafter on  the ceiling using her  saree as the ligature. Thereafter they closed the door and  went out  only to  return a little later. Reaching the house  they gave  an impression that the door was locked from inside  and, accordingly,  broke it  open.  They  then, brought the  deceased down  after untying the saree by which she was  hanging and  laid her  on a cot. Then the appellant

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along with  his mother  and brother  Prem Kumar (P.W.9) took the deceased  to the General Hospital where Dr. Sharaffuddin (P.W.14) examined her and declared her head. (b)  An information about the death of Lalithambika was sent to his  brother Prabhakaran (P.W.1) in that night. He became suspicious as to the manner of the death of his sister as he was told  that she  was electrocuted.  P.W.1 passed  on  the information  to   his  sister  Rajeshwari  Amma  (P.W.2)  at Thirumala and  then went  of the  house of the appellant. On the following  morning he  lodged a report at the Vanchiyoor police  station   where  a  case  of  suspicious  death  was registered. Shri  S. Sasikumaran  Nair (P.W.15),  Additional District Magistrate  of Thiruvananthapuram held inquest upon the dead  body and  thereafter sent  it to Forensic Medicine Department of  the  local  Medical  College  for  conducting autopsy. Dr. Sreekumari (P.W.16), and Assistant Professor of Forensic Medicine,  held autopsy  upon  the  dead  body  and submitted her  report. Later  on the investigation was taken over by  C.I.D. and  on completion  thereof charge-sheet was submitted. 4.   The appellant pleaded not guilty to the charges and his defence was  that his wife was not on cordial terms with her family as  she wanted  to dispose  of  her  share  in  their ancestral property  to which  objection was  raised  by  her brother  Prabhakaran   (P.W.1)  and  sister  Rajeswari  Amma (P.W.2). Because  of the  strained relationship with members of her  family she  was undergoing great mental tension even though she  had a  happy conjugal  life. It  was the further defence of  the appellant  that on  the date of the incident when he  returned from  the office in the afternoon he found her crying  and on  enquiry she  disclosed that  it was  the Pulakuli day  of her aunt. He then pacified her and took her to the temple. After returning home around 7.45 P.M. when he was watching  television Remya  said that  she  was  feeling hungry. He  then took  her to his parents’ house as food was not readily  available in  his house. After feeding her when he came  back home  he found  the  door  closed  and  lights switched off.  He knocked the door violently but did not get any response from his wife. With the help of neighbours when he broke  open he  found his wife hanging from the rafter of the kitchen.  By untying  the saree  he brought her down and laid on a cot. 5.   In absence  of any  eye-witness to  the  incident,  the prosecution rested its case upon circumstantial evidence. At the  outset  we  may  mention  that  P.W.16,  who  held  the postmortem  examination,   testified  that   he  could   not definitely  say  as  to  whether  the  death  was  suicidal, homicidal or accidental. In view of the above opinion of the doctor   the   prosecution   relied   upon   the   following circumstances to  hold the  appellant guilty  of the charges levelled against him:      (i)  the relation  between the  appellant and  his wife      was not  very cordial and in the morning of the fateful      day they had a quarrel;      (ii) Around 8.00 P.M. the appellant slapped his wife on      her face  and kicked  on her chest as a result of which      she became unconscious;      (iii) Immediately  thereafter the  appellant along with      his daughter  went to  his parents’  house but returned      alone;      (iv) Between  8.15 and 8.30 P.M. the hanging took place      inside the  house of  the appellant  and at  that  time      there was non except the appellant;      (v)   By the  time the  relatives of  the appellant and      neighbours reached  the house the body has been brought

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    down from the suspended position and laid on a cot;      (vi) A  story of  electrocution  was  attempted  to  be      spread; and      (vii) Neither  the appellant  nor  any  member  of  his      family attended the funeral of the deceased. 6.   Both the  trial Court and the appellate Court held that each of  the above  circumstances stood  conclusively proved and as, according to them, those circumstances considered cumulatively  unerringly   pointed  to   the  guilt  of  the appellant recorded their respective findings against him. 7.   Having carefully  gone through the impugned judgment in the light  of the  evidence on  record,  we  are  unable  to sustain  the  impugned  order  of  conviction  and  sentence notwithstanding the concurrent findings of the Courts below. In our  considered view  the most incriminating circumstance alleged against the appellant was that when the hanging took place the  appellant was  in his  house and that nobody else was there.  We searched  in vain for the evidence in support thereof but  found not an iota of it. The evidence on record only indicates  that after  assaulting the  deceased -  as a result of  which she became unconscious - the appellant left the house  along wit his daughter at 8.00 P.M. and came back home sometime  later. While according to the prosecution the appellant came  at a  point of  time when his wife was still alive, his  version, as  noticed earlier,  was that  when he came back he found her hanging. His further version was that he untied  the knot  of the  saree which  she  used  as  the ligature and brought her down. In absence of any evidence to prove that  the deceased  was alive  when the appellant came back his  version cannot  be  rejected  altogether.  For  an individual to hang a living person (who would certainly make all possible efforts to extricate himself) after lifting him to  a   certain  height   seems  to  be  rather  improbable. Presumably, in that context, the prosecution sought to prove that the  appellant took  the assistance of Krishnan Nair to accomplish  his   evil  design.   But  consequent  upon  his acquittal, the  High Court  was not  justified in convicting the appellant with a finding that he alone hanged her in the manner alleged  by the prosecution. In arriving at the above finding the  High Court  however took  note of the fact that the deceased had become unconscious owing to earlier assault by the  appellant and  observed that  it was  not physically impossible for  him to  hang her. This reasoning of the High Court cannot  also be  supported for  the nature  of assault could have  only resulted  in a momentary stupor. IN absence of any  evidence  that  the  deceased  continued  to  remain unconscious till  she  was  allegedly  strangulated  we  are unable to  accept  the  prosecution  story  of  hanging.  As regards the story of electrocution falsely circulated by the appellant, we also find that there is no evidence. The other circumstances  mentioned  above  do  not,  in  our  opinion, unmistakably point towards the guilt of the appellant. 8.   For the  foregoing discussion we allow this appeal, set aside the  convictions and  sentences of  the appellant  and acquit him  of both  the charges.  The appellant,  who is in jail, be released forthwith.