K. Bhaskaran, J.
1. Sri Mohammed Dwara Rawther Ismail, the accused in Sessions Case No. 35 of 1981, on the file of the Sessions Court, Trivandrum, is the appellant in this criminal appeal. He was prosecuted for offences punishable under Ss 302 and 201 of the I. P. C alleging that he had committed murder in respect of his wife Safia between 9 p. m. and 10.30 p. m. on 17-9-1930 from the house in which they resided in Kilimanoor, and that he attempted to destroy the evidence concerning the offence. The trial court found him guilty under Sections 302 and 201 I.P.C. convicted him thereunder and sentenced him to undergo imprisonment for life under Section 302 I.P.C. and rigorous imprisonment for one year under Section 201 I.P.C. the sentences to run concurrently. Aggrieved by this conviction and sentence this appeal has been preferred.
2. The prosecution case was that the accused and Safia, whom he had married on 23-7-1978, were living in a house in Kilimanoor with their son Feroz who was aged about 2 years, Safia, a double graduate, was employed as a teacher in a Government school in Kilimanoor the accused was an overseer in the Kerala State Electricity Board. Till about one month prior to the date of occurrence the accused was in Kasara-god, occasionally paying visit to Kilimanoor to see his wife and son. He got a transfer to Kilimanoor just about a month prior to the date of occurrence and thereafter they had been staying together. On 14-9-1980 the accused left for Pathanamthitta, the place from where he hails, telling Safia that he would return the same day. However, he returned only the next morning and on that account there were wordy quarrels between the husband and wife ending in the husband beating the wife. Thereafter till the evening of the 17th there had been exchange of words, beating by the husband, the husband refusing to take food from the house etc., and the next important event is his coming back from office at about 9 p. m. on 17-9-1980.
The prosecution case is that the accused beat Safia, pushed her towards the southern wall of the bedroom, her head hit the wall, she fell down, and later on spinning a cord with one end of a sari he strangled her with the aid of that cord and further, to make it appear that it, was a case of death by suicide bv hanging with the other end of the sari passing over the beam of the room, he tied the other end of the sari in such a posture as to make the appearance of Safia kneeling as in prayers. Thereafter he closed the room from outside after so manipulating the screws of the tower bolt of the door as to give way as soon as least force was applied. He then went to pw. 3 Alima Beevi, a thirteen year aged girl who is the niece of PW. 1, father of Safia, sleeping in another room, awakened her and asked her to knock at the door of the bedroom and call out the name of Safia to enable the accused to take some pills which he was urgently wanting. Though PW. 3 attempted to do so, there was no response: and this was followed by the accused kicking open the door. At that time PW. 3 saw Safia in the hanging position. Though PW. 3 was asked to untie the knot, she refused to do so and the accused himself did it. Later on he went to the house of PW. 2. about 40 metres away from his house, and told the inmates that Safia was found in an unconscious condition and that he would like to have a taxi. They came to the house and saw Safia lying on a cot. With PW. 2's sister and PW. 3 who brought a taxi, Safia was taken by the accused to Sarala Hospital where PW. 7 Dr. M. Mandekures examined her and declared that she was already dead. Though PW. 7 advised the accused to take her to government hospital, as probably post-mortem might be necessary, the accused went to a friend of his by name Hameed and after returning from him, took the dead body in the same car to his house. Later, information was conveyed to the relatives of the accused and deceased Safia.
PW. 1 the father of Safia, with his wife reached the house by about 5.30 a, m. on 18-9-1980. First information statement in this case was given by PW. 1 at Kilimanoor police Station at 7.30 a. m. and that was recorded. Ext. P-1 is that statement and Ex. P. 1 (a) is the F.I.R. Investigation proceeded inquest was conducted by PW. 23, the Circle Inspector of police, between 3 and 6 p. p.m M. Os. 1 to 6 wearing apparels found on the body of Safia and M. Os. 9 to 11 gold ornaments found on the person were also recovered at that time. Ext, p-5 is the inquest report. The body was sent for post-mortem. PW. 16 Dr. Ramankutty conducted the autopsy over the body of Safia. Ext. p-10 is the post-mortem certificate issued by PW. 16. At the inquest some witnesses were questioned. Investigation was in the hands of PW. 23 till 9-10-1980 on which date investigation was taken over by PW. 24, Circle Inspector of Crime Branch under instructions from supe-riors, On 14-10-1980 he questioned PWs. 2, 7 and 11; on 16-10-1980 he went to the place of occurrence and recorded the statements of PW. 1 and the accused. M. Os. 1 to 8 (a) were taken back from court (M.O. 7 is the screw driver and M. Os. 8 and 8 (a) are the socket of the tower bolt and 2 screws on the door of the bedroom of the house of the accused). Thereafter PW. 16 Dr. Raman-kutty and PW. 18, Dr. Jayapalan, were brought to the scene of occurrence as per a requisition sent through police officers. They questioned the accused and asked him to demonstrate the manner in which the body of Safia was seen hanging. PW. 15, the Director of Forensic. Laboratory, Trivandrum, also examined the doors with particular reference to M. Os. 7, 8 and 8 (a) as to whether it would have been possible for the accused to kick open the door unless it was tampered with earlier and so manipulated as to give way easily. On 19-10-1980 the accused was asked to be present on the scene. It would appear that he was there by 7 a. m. and P. Ws. 16 and 18 also reached the scene. That day PW. 18 questioned the accused, and during the course of that questioning the accused made a confession that it was he who caused the death of Safia by strangulation. This in brief is the factual basis with which the prosecution went to the court.
3. At the trial PWs. 1 to 24 were examined and Exts. p-1 to p-21 were marked on the side of the prosecution. On the side of the accused no witness was examined, but Exts. D-1 to D-20 were marked. At the close of the trial the accused was questioned under Section 313 of the Criminal p. c. The plea of the accused was one of total denial of the offence. The learned Sessions Judge, believing the prosecution case and rejecting the plea of the accused, found him guilty under Sections 302 and 201 I.P.C After hearing the accused on the question of sentence, to. be awarded, to him, the punishments of imprisonment for life under Section 302 I.P.C. and rigorous imprisonment for one year under Section 201 I.P.C. to be run concurrently, were awarded.
4. This is a case of circumstantial evidence, there being no eye witness to speak about the occurrence. The material evidence relied on by the prosecution and accepted by the trial court are: Ext. p-10 post-mortem certificate and the oral evidence of PWs. 2,4,5,8,15,16 and 18.
5. The prosecution story as far as the incident that took place on the fateful day, namely on the night of 17-9-1980, is sought to be unfolded through the evidence of PW. 3 who alone, apart from Safia and her child Feroz, was in the house at that time, barring the accused. Even PW. 3 did not claim to have witnessed the actual occurrence; she would only speak to the estrangement between the accused and Safia from 15-9-1980 till his return from office at about 9 p. m. on 17-9-1980. What she would speak about thereafter is the position in which she saw the body of Safia in a semi suspended position, hanging on the sari which was put over the beam and was found in a kneeling position as though she was in prayer. The chance of the prosecution to succeed in regard to the circumstantial evidence relied on necessarily has to depend upon to a large extent the credibility of PW. 3. Her evidence in court has been stated by the trial court in paras 37 to 40 of the judgment and it is not necessary to repeat here. It has to be noticed that PW. 3 was aged 13, she had studied up to 6th standard, she was related to Safia, being the niece of PW. 1. She had deposed that previously she had given a different version as tutored by the accused when she was questioned by the police earlier, she also stated at one stage that PW. 23 had not questioned her, but PW. 23 is positive that she was questioned among others, and her statement was recorded and it was read out to her. He also has deposed that PW 3 had stated as found in Exts. D-7 to D-7 (f) which are the contradictions marked. Though PW. 23 was sought to be treated as hostile by the prosecution, the trial court did not accede to that request. The position, therefore, is tnat the evidence of PW. 23 also is prosecution evidence. May be that the court is entitled to scan the evidence, and find out whether what was spoken to by PW. 23 is acceptable or not. In this case PW. 3 herself having stated in court that she had given a version earlier as tutored by the accused, it would be unsafe to rely on her evidence in court as the possibility of her deposition in court being at the behest of P. W. 1, her uncle, could not be ruled out. Moreover, it is difficult to believe her evidence in court that on 18-9-1980 neither P. W. 1 nor his wife asked her anything about the incident which conduct on the part of P. W. 1 is most improbable. The evidence is that P. W. 1 had reached the scene house as early as about 5.30 a. m. in the morning, and it was onlv at 7.30 a. m. he went to the police station. The sole person who could have given some information regarding the incident that preceded the death of Safia being P. W. 3, his niece, it is most unlikely that P. W. 1 would have omittted to ask P. W. 3 as to what really happened. It would, therefore, be unsafe to give total credence to the evidence of P. W. 3. In fact the trial court itself did not give much weight to the evidence of p. W. 3. Practically for all purposes her evidence has been rejected.
If the evidence of P. W. 3 is left out about the occurrence on 17-9-1980, we are left with the evidence of P. Ws. 2, 4, 5 and 8. P. Ws. 2 and 8, sister and brother, are persons residing in a house about 40 metres away from the scene house. What P. W. 2 would say is that on the evening of 17-9-1980 Safia had been to their house, she had during the course of conversation mentioned that her husband was unhappy about her, she having become lean and weak and as she was not looking after the child properly. This, at best, would provide only a motive. In the absence of other evidence, circumstantial or direct, regardring, the commission of the offence, this motive would be of little significance. One other thing relevant is that this part of the evidence of P. Ws. 2 and 8 has been disbelieved by the trial court Leaving out that part of the evidence what might be relevant for the purpose of this case, the evidence of P, Ws. 2 and 8 is that soon after the incident the accused had been to them and had told them that Safia was unwell she was in an unconscious condition and that he required the assistance of P. W, 8 for getting a taxi to take her to the hospital. This part of the evidence has been sought to be demolished in the cross-examination by the defence. The case of the prosecution is that suppressing the fact that Safia was found in a hanging position or in a suspended position as found by P. W. 3, is indicative that the accused was having a guilty conscience and he was anxious to conceal the truth. For one thing, if we discard the evidence of P. W, 3 as untrustworthy, this argument based on the evidence of P. W. 3 cannot be accepted. For another thing, the anxiety of the accused at that time might have been to see whether the life of Safia could be saved by taking her to the hospital. He went to them not so much for narrating the story, as for seeking their assistance to take Safia to the hospital. In regard to the omission to mention the position in which the accused saw her, even assuming that he had seen her in the position as spoken to by P. W. 3, we do not think that it is a point inconsistent with the plea of innocence of the defence.
We have then the evidence of P. Ws. 4 and 5. They are, according to them, residing within 100 feet from the place of occurrence, but the mahazar would show that actually they are residing about 80 metres away from the scene of occurrence. They say that they had at about 9 O' clock or so in the night on 17-9-80 heard the shouting from the accused's house '(Matter in Malayalam omitted -Ed.)' and after they went to sleep they heard a cry '(Matter in Malayalam omitted - Ed.)'' which according to them, must' have been the cry of Safia, It is difficult to believe the evidence of P. Ws. 4 and 5 because they were not questioned at any time before 18-10-1980, i.e., full one month after the incident, even though they were available immediately after the occurrence in the vicinity. Secondly, it is doubtful whether they could have heard the cry to have awakened them when the cry did not succeed in awakening P. W. 3 who was sleeping in one of the rooms in the house, and thirdly, assuming that a wordy quarrel preceded between the husband and wife, the possibility of Safia committing suicide thereafter for the very reason could not be ruled out. We, therefore, find it difficult to accept the evidence of P. Ws. 4 and 5 as sufficient to hold that it was the accused who by strangulation caused the death of Safia, Though P. W. 6 also has deposed that he had heard a cry (Matter in Malayalam omitted - Ed.), the trial court has not chosen to act upon the strength of his evidence, and we find no reason to give better credence to the evidence of P, W. 6. The evidence of P. W. 9 is of no assistance to the prosecution, and rightly the trial court has not placed any reliance on that.
6. The medical evidence as disclosed by the evidence of p. Ws. 16 and 18 and Ext. P-10 post-mortem certificate has to be considered. Injuries noted in Ext. p-10 post-mortem certificate read as follows:
(1) Contusion 8x6 cm, on the right cheek,
(2) Contusion 4x4 cm. on the front of middle of chest 3 cm. below the upper end of sternum.
(3) Contusion 4 x 3.5 cm. on the inner aspect of left lower lip and gum.
(4) Contusion 2x1 cm. on the inner aspect of left upper lip and gum.
(5) Contusion 11x9 cms. on the right side of head just above the ear.
(6) An abrasion (ligature mark) 13 x 2 cms, on the front of neck above the thyroid cartilage (horizontally placed). There was an extension of abrasion towards the chin 3.5 x 1 cms. oblique, from a point 5 cms. Inner to the left end of the former.
Air passages contained fine blood stain-ed froth. Lungs were congested. Stomach weight 250 gm. and contained 150 ml. partly digested rice without any characteristic smell. Its mucus was normal. All other organs were in a state of early decomposition, otherwise normal. The opinion as to the cause of death is stated as below:
Post-mortem findings are consistent with death due to constriction force around neck.
In para 21 of the judgment of the trial court it is said:
However, in view of the horizontal place of the ligature mark, as well as the absence of the ligature mark completely around the neck, the post-mortem findings can be said to be one favouring only a case of strangulation.
In para 22 the trial court has stated as follows:
The testimony of the doctor P. W. 16 who has conducted the autopsy does not conclusively show that death in this case was in one particular form.
This shows the inconsistency of the reasoning of the trial court. The finding of the trial court could not be accepted, because the absence of ligature mark completely around the neck is not a positive sign of death by strangulation, but more a sign of death by suicide by hanging. The ligature mark depends on the nature and position of the ligature used and the time of suspension of the body after death. The mark is usually situated above the thyroid cartilage between the larynx and the chin, and is directed obliquely upward following the line of the mandible (lower jaw). (Vide Modi's Medical Jurisprudence and Toxicology, Nineteenth Edition, page 144). In this case the ligature mark is seen to have been found on the front of the neck above the thyroid cartilage, though horizontally placed. This again is more an indication of a death by suicide than by homicide. Nevertheless. there may be cases where due to intervention of bushy hair on the back side and side of the neck there would be absence of ligature mark in that part of the neck, In this case what the real position was at, that time could not be spoken to by any witness because none had the advantage of seeing in what position the body of Safia was hanging and even if P. W. 3 had that advantage, she not having spoken about it and her evidence has not been found trustworthy, there is total lack of evidence on that point. It would therefore, be more correct to say that the post-mortem certificate Ext. P10 does not rule out the possibility of death having occurred by suicide. The evidence of P. W. 16 also is that the signs of constriction around the neck are consistent with the case of suicide as well as homicide.
7. One point urged in support of the prosecution case is the conduct of the accused. It is submitted by the Public Prosecutor that on the night, barring P. W. 3 and the child Feroz (whose presence could be ignored for this purpose) accused and Safia were left alone to themselves. Whatever might have happened that night could not have happened without the knowledge of the accused. He had not disclosed the true story to anyone, and it was he himself who untied the knot of the cord and laid the body of Safia on the cot. He did not accede to the suggestion of P. W. 7 that the dead body was to be taken to the Government Hospital, as probably, it might require post-mortem As far as the failure to take the dead body to the Government Hospital is concerned, we do not think that it is an unnatural conduct of a loving husband to take the body to his own house if he had a clean conscience about the whole thing, and to give intimation to the relatives of the accused and the deceased. That is what the accused did. Secondly, the act of untying the knot attributed to him is on the basis of the evidence of P. W. 3 which, for reasons already stated, we have not chosen to rely on. His failure to mention the incident to P. Ws. 2 and 8 in full also is not, as we have already noticed, a point against him. We do not, therefore find that the conduct of the accused is such as to lead to the irresistible conclusion that he was guilty of the offence of homicide, Even his failure to inform the police immediately is not a conclusive circumstance to hold that it was out of guilty conscience that he did not do so. Moreover, at 7.30 a. m. P. W. 1 had informed the police. The conduct of the accused might create suspicion, but that cannot be held to be conclusive evidence for holding that the accused had committed homicide in respect of Safia.
8. Now we would deal with the evidence of P. W. 15 which was strongly relied on by the prosecution. P. W. 15, as already noticed, is the Director of Forensic Laboratory at Trivandrum. His services were obtained by P. W. 24 to see whether it was possible for the accused to kick open the door of the bed room, the scene of occurrence, unless there was manipulation earlier by tampering with the screws of the socket of the door. The argument based on his evidence also is on the basis of what P. W. 3 said. If we have to discard the evidence of P. W. 3, then there might not be much relevance to the evidence of P. W. 15. Moreover, the defence counsel argued that P. W. 15 himself had deposed that the force required for M.O. 8(a) screws to give way would depend upon the nature of the wood on which the screws were fastened. There is total lack of evidence on this point, and therefore the expert evidence given by P. W. 15 is not conclusive on the point.
9. Now we come to the evidence of extra judicial confession. It is the prosecution case that on 19-10-1980 the accused had made a confession to P. W, 18 Dr. Jayapalan, the Professor of Forensic Medicine and Police Surgeon of the Trivandrum Medical College, that he had quarrelled with Safia that night, that he had beat her on the face, had pushed her against the floor, had kicked her on the chest and legs when she had fallen down, had then made a cord by spinning one end of a sari and constricted her neck for a few minutes, her head hair remaining loose on the neck and sides of neck at that time, had suspended the dead body in a kneeling prayer position, then removed the bolt, of the door and closed the door from outside. We will assume that the accused had made a statement to P. W. 18 incriminating himself in the manner stated above. Even then, the question is whether that statement is admissible in evidence, whether that is a voluntary statement given and whether that represents the true version of the occurrence.
In this connection we have to bear in mind that on the prosecution's own showing the accused was at the police station for 3 or 4 days from 18-9-1980. soon after the crime was reported and registered. He was at the scene house on 16-10-1980 when P. W. 24 came there for further investigation with the aid of P. Ws. 15, 16 and 18, when the Superintendent of Police Sri Moidu. and another Dy. S.P. were also present. That day a sort of a demonstration showing the posture in which the body of Safia was seen, after her death, is stated to have been made by the accused before P. W. 18. It is not necessary to go into the details, but it has to be noticed that P. W. 16's evidence is that as he left the place on 16-10-1980 he had told P. W. 24 that the version given by the accused was not consistent with the post-mortem findings. The prosecution evidence is that it was thereafter P. W. 24 sent for P. Ws. 16 and 18 for verification of the 'different version given by the witness.' He had sent P.C. 1073 for securing the presence of the accused to the scene house. There is no denial that from about that time, namely, 7 a. m. the accused was present at the scene house. P. W. 24 also appears to have reached the scene by 8 a.m. Thereafter it is by about 11 a. m. that p, W,s. 16 and 18 came to the scene. The purpose of securing the presence of the accused at that time and getting P. Ws. 16 and 18 on the prosecution's own case was for verification of 'the different version given by the witness.' Of course, in so many words, it has not been stated as to who the witness was. In the context of things, and on a consideration of the evidence on record, it is not, however, difficult to make out that the reference to the witness was only to the accused who remained without being formally arrested till 3.35 p. m. that day. The presence of P. Ws. 16 and 18 would have been felt necessary by P. W. 24 only for questioning the accused. It is in the background of the sum total of all these facts and circumstances surrounding the confession statement stated to have been made by the accused to p. W. 18 that its admissibility in evidence, evidentiary value and the degree of veracity etc. have to be assessed.
10. Extra judicial confession is normally said to be a weak piece of evidence. It could not be acted upon if it is found lacking in probability or if it does not inspire confidence. If a confession does (not) violate any one of the conditions operative under Sections 24 - 26 of the Evidence Act, it would be admissible in evidence even then, the court has a duty to consider whether it could be accepted as true. If it casts a doubt on the veracity or voluntariness, normal-ly the court would refuse to act upon the confession even if it is found to be admissible in evidence. One important question, in regard to which the court has to be satisfied with, is whether, when the accused made the confession, he was a free man or his movements were controlled by the police, either by themselves or through some other agency employed by them for the purpose of securing such a confession. Police custody in the real perspective commences from the time when the movements of the accused are restricted or controlled and he is kept in direct or indirect police surveillence it is not necessary that there should have been a formal arrest. It is not the presence of one particular person or officer or of any one of these circumstances that would by itself decide the question as to whether the accused was in police custody : it is, on the other hand, the concomitance of the various facts and circumstances, which are relevant and material, immediately preceding the making of the statement by the accused that has to be taken into account in making a proper assessment as to whether the statement alleged to have been made by the accused is not hit by the provisions of Section 26 of the Evidence Act. The paramount consideration of the Court should be to see that the statement is not hit by any of the provisions contained in Sections 24 - 26 of the Evidence Act or Section 162 of the Criminal P.C. that it was made voluntarily, was a true statement which could be acted upon even when found admissible in evidence.
Tested in the light of these broad principles, though in this case the accused is stated to have been formally arrested only at 3.35 P.M., on 19-10-1980, we find it difficult to hold that the statement was made by the accused to p. W. 18 voluntarily as a free agent and that it is not hit by the provisions of Section 26 of the Evidence Act for the application of which it makes little difference, whether the statement was made direct to the police officer or to any agency employed by the police for securing the confession. In the facts and circumstances of the case we are of the view that in this case it was at the instance of P. W. 24 that the questioning of the accused was made by P. W. 18 and that it would tantamount to a statement made by the accused while he was in custody of the police.
11. If the evidence of P. W. 18 could not be used for conviction of the accused, much less could the evidence of P. W. 16, who also is said to have been present when the accused made the statement to P. W. 18, be made use of for that purpose. The only other extia judicial confession said to have been made by the accused is the one to P. W. 10. The evidence of p. W. 10 does not inspire confidence at all. In fact the acquaintance of the accused with p. W. 10 is not such intimate or long as to warrant a reasonable inference that he would have reposed in him sufficient confidence to make a statement to implicate himself in a charge for murder. The prosecution case is that it was only about a month prior to the incident that the accused got his transfer to Killmanoor and began staying there with his wife. There is nothing on record to show that there was any contact between the two earlier. The position of P. W. 10 is in the nature of a chance witness. It is difficult to make out from his evidence as to whether the conversation between the accused and himself look place when he was attempting to get out of the car or to get into the car. He claims to have approached the accused in his capacity as the Member of the Panchayat. The confession appears to have been made in the presence of one Rajan who has not been examined. It is doubtful whether a confession implicating oneself in a murder charge would have been made by any sensible man in such casual way, on an accidental meeting of the persons in a public place in the manner spoken to by P. W. 10. We do not consider it safe to rely on the evidence of p. W. 10, who, admittedly was a stranger to the accused till one month prior to the date of occurrence. Though the evidence of P. W. 10 is seen to have been discussed in paragraph 56 of the judgment of the trial court, it does not appear to have placed any reliance on it for the purpose of holding the accused guilty.
12. It is most unfortunate that Safia a double graduate teacher, in the prime of her youth, has lost her life in the most tragic circumstances, leaving behind her two year old son, her parents, a large circle of teachers and wards, and well-wishers to mourn her death. The suddenness and the suspicious circumstances in which death snatched away her life seem to have even evoked public agitation. We are not free from doubt about the role, if any, the accused had in the death of Safia; All the same, suspicion, however grave, would not be a substitute for legal evidence to enter the conviction and to sustain the sentence. Having given oar very anxious and careful consideration to the entire evidence in this case, we are of the view that the prosecution has not succeeded in proving beyond reasonable doubt that the accused is guilty of the offence alleged against him. We therefore give the benefit of reasonable doubt to the accused. Probably the case would have taken a different shape and the result would have been different had the investigation at the earliest stage was not perfunctory.
13. For the foregoing reasons we allow the appeal, setting aside the convictions and sentences passed by the court below and acquitting the accused of both the charges. The appellant-accused will be set at liberty forthwith.