JUDGMENT P.A. Manoharan, J.
1. Accused is the appellant. He was charged under Section 302, IPC for having caused the death of his pregnant wife, Gouri and the foetus at about 10.30 p.m. on 13-2-1989 near the burial ground at West Yakkara. Learned Sessions Judge, Palakkad Division found him guilty of the offence, convicted and sentenced him to undergo imprisonment for life. Accused challenges the finding, conviction and sentence in this appeal.
2. Accused, a native of Yakkara in Palakkad District while was working in a work-shop at Perintalmanna, married Gouri, a resident of Pathakkara in Perintalmanna on 27-6-1988. After the marriage, they resided in one of the residential units in a row quarters known as 'KPR Quarters' situated in Anamangad in Perintalmanna. One Gopalakrishnan alias Gopu-Gopal was their neighbour. On suspicion that Gouri had illicit intimacy with the said Gopalakrishnan accused used to pick-up quarrel with her and manhandle her. In January '89 Gouri was in advanced stage of pregnancy and on 18-1-1989 Gouri was taken to her paternal house at Pathakkara. Accused also shifted his residence to that house. On 12-2-1989 Gouri's mother (PW-5) went to her tarwad house at Mankada, later Gouri and the accused joined her at Mankada. In the early morning of 13-2-1989 accused left saying that he was going to his work-shop at Perintalmanna; but instead of going to the workshop accused went to the shop of PW-10 and purchased M.O. 27 knife with M.O. 26 sheath, concealed it and returned. Accused and Gouri returned to Pathakkara. Accused said that he has to visit his sister and children who have arrived at Yakkara from Madras and then at about 3 p.m. on 13-2-1989 he along with Gouri left Perintalmanna to Palakkad by bus. On their way from the bus stand at Palakkad to his family house at Yakkara accused purchased half a bottle of rum from a road side liquor shop. At about 10.30 p.m. when they reached near the burial ground at West Yakkara, he consumed the rum, and then took out M.O. 27 knife and stabbed Gouri on her abdomen, through the opening created by the stab, intestine and foetus came out. Gouri succumbed to the injuries at the scene. According to the prosecution, accused thereafter went to the house of PW-14, a lawyer at about 11 p.m. in the same night and left for Madras.
3. In the early morning of 14-2-1989 on getting information of a dead-body of a lady and a child lying near the burial ground, PW-2 informed PW-1. They together went to the scene, saw the dead-bodies and then PW-1 went to the Palakkad Town South Police Station and tendered Ext.P1 F.I. statement before PW-17, Sub-Inspector of Police. He registered Ext.P1(a) F.I.R. under Section 302, I.P.C. PW-17 held Ext.P 3 inquest on the dead-body of the foetus and PW-19, Circle Inspector of Police held Ext.P2 inquest on the dead-body of the lady. Then the identity of the dead-body was not known.
4. PW-13 took the dead-bodies to the hospital where PW-12 conducted the autopsy on the dead-bodies of Gouri and the child. He issued Ext.P 8 post-mortem certificate concerning Gouri and Ext.P 9 post-mortem certificate concerning the child.
5. On 14-2-1989 at about 5 p.m. PW-16, Inspector of Police at C2 Elephant Gate Police Station, Tamil Nadu, while was on his usual evening round found the accused in a suspicious circumstance at Waltex Road in front of Lakshmi Bhavan Lodge. He questioned him, arrested him and took him to the police station. Thereafter, he informed the Palakkad Town Police Station as to the arrest of the accused and the information he collected from him. He registered Ext.P 10 F.I.R. under Section 41(1)(a) of the Cr.P.C. as Crime No. 226 of 1989 and produced the accused before the 8th Metropolitan Magistrate, Madras with Ext.P 11 remand report.
6. On receipt of the message from the Madras Police, PW-18, Assistant Sub-Inspector of Police was deputed to Madras and PW-4, father of Gouri was required at about 8p.m. on 14-2-1989 to go over to Palakkad. He identified the dead-body at the mortuary of the hospital. PW-18 filed Ext. P 13 report for the custody of the accused. The court directed the accused to be produced before the Judicial Magistrate in Kerala. On receipt of the message from PW-18 from Madras that the accused has left the knife and cloth near the scene of occurrence, PW-19 made a search. On 17-2-1989 PW-19 recovered M.O. 23 shirt, M O. 24 pants, M.O. 25 jetty and M.O. 26 sheath under Ext.P 6 from the canal near the Palattu Hospital in Palakkad. After getting custody of the accused on 19-2-1989 and as per the information received from the accused PW-19 recovered M.O. 27 under Ext.P 7 from the bund of the paddy field belonging to Krishnan situated near the burial ground.
7. PW-19 questioned the witnesses, completed the investigation and laid the charge before court. Prosecution examined PWs 1 to 19, produced Exts.P 1 to P 16 and identified M.Os. 1 to 28. On the side of the defence DW-1, the brother-in-law of the accused was examined.
8. When the accused was questioned under Section 313, Cr.P.C. he said that he is innocent and that he was arrested from the house of his brother-in-law at Madras. He said on the date of occurrence on the way to Palakkad he along with his wife Gouri went to the house of his brother-in-law at Mankurissi. From there all the three went to Palakkad from there they went to Yakkara, and that on reaching there they learnt that his sister who was residing at Madras did not reach Yakkara. Since he wanted to go to Madras to meet his sister who was ailing, he told Gouri, if she wanted she could stay at Yakkara; but Gouri wanted to go back to her house at Perintalmanna. So he took Gouri to the Palakkad bus stand and put her in the bus bound for Perintalmanna. After that he along with his brother-in-law (DW-1) went to Madras and while he was in the house of his brother-in-law at Madras, the Madras Police arrested him.
9. Learned Counsel for the accused/ appellant contended that circumstances relied on by the prosecution are not only not proved, the same are incapable to bring home the guilt of the accused. It was argued by the learned Counsel that the injuries found on the dead-bodies were not ante-mortem and that there is grave doubt as to the very cause of death. It was maintained by him, the indications are to the effect that death took place elsewhere and the injuries were inflicted later to mislead the investigation. On the other hand learned Director General of Prosecution maintained that, the circumstance having been convincingly proved, it is merely the vain attempt of the accused to save himself from the offences to contend that, death took place somewhere else. According to the learned Director General of Prosecution, the evidence would prove beyond doubt that death was culpable homicide amounting to murder and the same took place at the scene alleged by the prosecution.
10. In the circumstance, we may first deal with the cause of death and also whether death took place at the scene alleged by the prosecution. PW-19 held Ext.P2 inquest on the dead-body of Gouri and PW-17 held Ext.P3 inquest on the dead-body of the foetus. PW-3 is an attester to Exts.P2 and P 3. He said that the stomach of the lady was seen torn by the injuries and the foetus was lying outside along with the intestine of the lady. He said that Gouri was wearing M.Os. 5 and 6 gold jimikkie with ear stud. He also said that Gouri was wearing M.O. 7 blouse and M.O. 8 under skirt. He added that the dead-body was found lying in a pit containing water. He further said that there were M.O. 3 rexin bag and M.O. 4 empty brandy bottle. M.O. 3 bag contained M.Os. 11 to 14. The bag had a sweet inside and also coins. There was also "padasaram". He said that M.O. 10 gold necklace was lying near the dead-body of Gouri and the foetus's dead-body was also seen immersed in the water. Ext.P 2 inquest also mentions that the dead-bodies were lying in the water and the water was reddish in colour. It also gives the dimension of the pit in which the dead-bodies were found.
11. PW-12, the doctor who conducted the post-mortem issued Exts.P8 and P9 certificates. He said, the foetus was of 28 weeks' gestation. In his evidence as well as Ext.P 8 concerning Gouri, the doctor said, he noted two external injuries :
(1) Incised penetrating wound 3 cm x 1 cm and entering into the abdominal cavity through which portion of small intestine is protruding.
(2) Large incised gaping wound 18 cm x 10 cm entering into the abdominal cavity through which portion of placenta, dead foetus and small intestine have come out.
In Ext.P 9 concerning the foetus the doctor noted the following injury:
Incised wound 10 cm x 4 cm on the (R) hypochondrium through which portion of liver large and small intestines are seen protruding.
PW-12 said that the death of Gouri was due to haemorrhage and shock on account of the injuries to the abdominal iorta and uterus. He also said that the said injuries could be caused with a weapon like M.O. 27, that the death could be instantaneous, that the female foetus was about 28 weeks' gestational age lying attached to the mother through the umbilical cord and that the foetus also died as a result of the haemorrhage and shock due to the injury to the abdominal wall, intestine and injury to placenta. He added, the injury on the foetus could be the corresponding injury No. 2 in Ext.P 8; that is, the child in the womb also sustained injury on account of the stab inflicted on the abdomen of the mother. In the cross-examination he said, he did not note water having entered the abdominal cavity of the foetus; but saw 50 ml. of fluid blood in the peritonial cavity of the foetus. He also said that he noticed blood stains at the site of the injury. At the edges of the wound sustained by Gouri he found clotted blood. He added that, when an injury to iorta is caused, there is likelihood of the blood spurting out. He further said that the said injuries were ante-mortem.
12. As noticed the contention of the learned Counsel for the appellant is that the injuries cannot be said to have been ante-mortem and that the symptoms could show that the death was due to asphyxia. The point urged by the learned Counsel is, since the heart chamber and cavities did not contain blood it should be inferred that the blood did not clot; consequently it should have been in a liquid form. So, according to him, that is a symptom of death due to asphyxia. He maintained that in as much as there is no acceptable evidence to the effect that the injuries were ante-mortem, with the said symptom it has to be inferred that the injuries were inflicted subsequent to the death as a result of asphyxia. The argument is not only far fetched but is the result of wild imagination. The argument assumes things which are not in evidence. PW-12 was not asked whether the said symptoms would indicate death by asphyxia; not even a suggestion is made in that regard. Though Ext.P 8 does not mention that the injuries were ante-mortem, it was brought out in the cross-examination itself that those injuries were ante-mortem. It should be noted that PW-12 noted clotted blood at the edge of the injuries. It is not of little importance in this connection to note that the dead-bodies were found lying in water which was stained red. This would show that there was flow of blood and that explains as to why blood was not noticed in any other part of the scene. The doctor's opinion that these injuries were ante-mortem and that the same could be caused with M.O. 27 has to be accepted unless it is shown that the same is vitiated.
13. In the decision in Mafabhai Nagarbhai Raval v. State of Gujarat, AIR 1992 SC 2186 : (1992 Cri LJ 3710), the Supreme Court held that unless there is something inherently defective, the court cannot substitute its opinion in the place of doctor's opinion. Learned Counsel relied on the decision in Mayur Panabhai Shah v. State of Gujarat, 1982 SCC (Cri) 442 : (1982 Cri LJ 1972), to contend that the doctor's evidence must be appreciated just like the evidence of any other witness. Here, as noticed, the fact that the injuries are ante-mortem is brought out in the cross-examination itself. The characteristics of the injuries are also given by the doctor. Learned Counsel relied on page 286 of the Medical Jurisprudence and Toxicology by Modi 21st Edition wherein the author states that when the victim dies immediately from severe fatal injury and shock effused blood would be forced into the tissue and would be found infiltrated in the cellular and muscular tissues, and that there would be consequent staining of the edges of the wounds and the neighbouring tissues which cannot be removed by washing, to contend that since the said characteristics are not stated to have been noticed, the injuries were post-mortem injuries.
14. As noticed, the doctor has stated that at the edges of the injuries he found clotted blood. The said view of the author (Modi) was not put to the doctor. Apart from the same, there is nothing inconsistent in the evidence of PW-12 against what is stated therein. With due regard to the decision in Mafabhai Nagarbhai Raval's case, AIR 1992 SC 2186 : (1992 Cri LJ 3710), there is no reason to disagree with the opinion of the doctor that the injuries were antemortem. As noticed, the far fetched argument of the learned Counsel to the effect that the death was due to asphyxia has to be rejected as the same is not supported by any data whatever. On the other hand the doctor has stated that the death was due to haemorrhage and shock due to the injuries to the abdominal iorta and uterus. We do not see anything to doubt the evidence of PW-12 in this regard. With due regard to the nature and seat of the injuries and the opinion of the doctor that the death could have been instantaneous, it is clear that the assailant had the intention to cause the death and therefore, the death is culpable homicide amounting to murder.
15. The evidence of PW-3, the attestor to Exts.P2 and P3 along with the evidence of PWs 17 and 19 reveals the features obtained at the scene. The very material objects found scattered at the scene, the place where the dead-bodies were found, particularly the fact that the water in the pit was stained red would unerringly show that the death took place where the dead-bodies were found. And the assailant struck ferociously with paralysing suddenness.
16. There is no occurrence witnesses. Therefore, the prosecution relies on circumstances to bring home the guilt of the accused, the circumstances relied on are:
(1) Accused has motive to do away with Gouri.
(2) The deceased was seen last in the company of the accused.
(3) The conduct of the accused before and after the occurrence.
(4) The circumstances under which the offence was committed.
(5) The recovery of M.O. 27 knife at the instance of the accused.
(6) The purchase of the knife by the accused.
(7) Recovery of the blood-stained shirt of the accused.
17. According to the prosecution the accused had sufficient motive to do away with Gouri on account of his belief that Gouri had illicit intimacy with their neighbour Gopala-krishnan who was cited as CW-21. But CW-21 could not be examined as the summonses issued to him were returned with the endorsement that his whereabouts are not known. As regards this aspect there is the evidence of PWs 4 and 5, the father and mother of Gouri. PW-4, the father of Gouri deposed, when Gouri visited them, she complained that the accused used to quarrel with her. PW-5 was more specific; she said that, Gouri complained that the accused used to pick-up quarrel with her suspecting her fidelity. It is only probable that, a daughter reveals such matters to the mother for consolation and guidance. The evidence of PW-5 in the circumstance gains enough probative force as it is only natural that a daughter harassed by the husband reveals it to her mother in an attempt to relieve her pain and agony. In such circumstance, the ready source for sympathy, understanding and consolation is the mother.
18. Learned Counsel for the appellant/ accused contended that neither PW-4 nor PW-5 heard the accused and deceased quarrel even though they admitted to their having visited the accused and deceased at their residence and they resided with them for some time. According to the learned Counsel that being the position the evidence of PWs-4 and 5 in this regard cannot be accepted. We are unable to agree with the learned Counsel; a daughter and son-in-law would naturally avoid to create a scene in the presence of their parents, and a son-in-law will not openly dare to air his feeling against his wife alleging infidelity. Of course, the learned Sessions Judge observed that merely on that ground a husband may not think of doing away with the wife. We are of the view that the learned Sessions Judge erred in generalising that such a suspicion of the husband as to fidelity of the wife would not constitute motive for murder. It would vary with persons, some may condone it; but a jealous and possessive husband would feel to his having been let down and cheated by her whipping up passion to destroy her.
19. Learned Counsel for the appellant relied on the decision of a Division Bench of the Patna High Court in Ajodhya Singh v. State of Bihar, 1988 (1) Crimes 749, in support of his argument that absence of motive though, is not fatal, once motive is introduced, prosecution should satisfy conscience of court in that regard. It is not a case where the learned Sessions Judge disbelieved PWs 4 and 5. According to the learned Sessions Judge that could not constitute sufficient motive for the offence. As noticed, we are unable to agree with the said view of the learned Sessions Judge. With due regard to the principles laid down in the decision in Brathi v. State of Punjab, AIR 1991 SC 318 : (1991 Cri LJ 402), there is nothing to prevent the appellate court in expressing its view on a correct appreciation of the evidence even though an adverse finding was made by the lower court. As indicated, the evidence of PWs 4 and 5 certainly would establish motive for the offence.
20. The evidence of PWs 4 and 5 would show that at the relevant period Gouri was in an advanced stage of pregnancy. She was taken to her paternal home at Pathakkara on 18-1-1989. The evidence of PW-5 would show that on 12-2-1989 PW-5 went to her tarwad house at Mankada, and Gouri and accused later joined her at Mankada. She said that at about 8 a.m. accused went out saying that he was going to Perintalmanna for work, that he returned by about 1 p.m. and said that his sister and children from Madras have arrived at Yakkara and hence they have to go to Yakkara. According to PW-5 they reached Perintalmanna bus stand at about 3 p.m. and accused and Gouri left for Palakkad by bus. PW-6, the brother of the accused though was declared hostile said, on 13-2-1989 at about 7 p.m. Gouri and accused came to his house. On 14-2-1989 at about 9 a.m. PW-1 informed PW-2 as to dead-bodies of a woman and a child were lying near the burial ground in Yakkara and both went there and found the dead-bodies. The evidence thus would show that Gouri was seen last in the company of the accused at about 7 p.m. on 13-2-1989, and her dead-body was found in the early morning of 14-2-1989 in a burial ground with fatal injuries.
21. The decision in State of Karnataka v. Khaja Hussain, 1983 SCC (Cri) 82, held that the fact that the deceased was last seen alive with the accused is a highly incriminating circumstance in the presence of supporting circumstance. That would make out a prima facie case against the accused for the charge of murder and it would be for the accused then to explain how death ensued and also the incriminating circumstances. As is held in the decision in Inderjit Singh v. State of Punjab, AIR 1991 SC 1674 : (1991 Cri LJ 2191), the sole circumstance that the deceased was last seen in the company of the accused by itself is not sufficient to bring home the guilt of the accused. In the presence of other circumstance the fact that the deceased was last seen in the company of the accused would become incriminatory necessitating the accused to explain as to how the death ensued and also the other incriminating circumstance. In view of the above, it is now necessary to see whether there are supporting circumstances in this regard.
22. According to the prosecution the occurrence was at about 10.30 p.m. on 13-2-1989 and the scene was the burial ground at Yakkara. It is an admitted case that the sister of the accused never came to Yakkara from Madras. Unless there is evidence to the contrary, that would lead to the conclusion, particularly in the context of the motive, that it was a pretext by the accused to isolate Gouri to a lonely place that he told her and PW-5 on 13-2-1989 at about 3 p.m. that they are going to Yakkara to meet his sister and children who had arrived there from Madras. In this context, it is necessary to advert to the nature of the injuries sustained by Gouri and the foetus, and also the features obtained at the scene of occurrence. The very scene of occurrence is familiar to the accused as he was hailing from Yakkara whereas Gouri was a native of Perintalmanna. Since Gouri was seen alive in the company of the accused at about 7 p.m. on 13-2-1989 and her dead-body was found on the next morning, it is certain that the death took place in the night of 13-2-1989. The cause of death was the injuries sustained by her at the burial ground. A young woman who is in advanced stage of pregnancy will not dare to visit a desolate place like a burial ground unless she was led and guided to that place by a person in whom she has confidence and faith. Evidently she could not have known that she was being led to a burial ground.
23. PW-3 the attestor to Exts.P 2 and P 3 said, he saw the jewels worn by Gouri there. Some were worn by her, some were scattered there. What is significant to be noticed is the jewels worn by Gouri were not removed. There is nothing on record to show that, there was any attempt to molest her. This would show that, the motive for the crime was neither robbery nor rape. The nature of the injuries would show that the death was not suicide. These circumstances would focus to the conclusion that Gouri was taken to that burial ground in the night and was murdered by a person who had the motive to do away with her. Now the very location and nature of the injuries are relevant in appreciating the case of the prosecution. Both the injuries were on the abdomen and the second injury was a large incised gaping wound 18 cm x 10 cm which entered the abdominal cavity through which portion of placenta, dead foetus and the small intestine came out. The fierce hatred of the assailant to the child in the womb and the woman who was carrying is eloquent by the seat and nature of the injuries. With ferocious wickedness and malice the injuries were inflicted on the abdomen itself which brought out the foetus; the foetus too sustained injury due to the strike on the mother. The ghastly attack at a place like burial ground in the cover of darkness is a relevant factor to be understood in the context of the motive spoken to by PWs 4 and 5. The features certainly would point the accusing finger towards the accused.
24. Accused was arrested by PW-16 at about 5 p.m. on 14-2-1989 at Waltex Road in front of Lakshmi Bhavan Lodge, Madras as he was found in suspicious circumstance. PW-16 said that on seeing the police the accused took to his heels. PW-16 took him to the police station and registered Ext.P 10 F.I.R. of the C2 Elephant Gate Police Station under Section 41(1)(a) of the Cr.P.C. and produced the accused before the Magistrate with Ext.P-11 remand report. PW-16 said that when he questioned the accused, he came to know of his involvement in a crime in Palakkad and therefore, through Wireless he informed the police at Palakkad about the arrest. It was thereafter, PW-18, Assistant Sub-Inspector of Police, Palakkad went to Madras and filed Ext.P-13 report before the VIII Metropolitan Magistrate who directed to produce the accused before the Magistrate at Palakkad. At this juncture it would be enough to note that, the accused was found at Madras at about 5 p.m. on 14-2-1989, he was arrested by PW-16 and was produced before the Magistrate with Ext.P-11 remand report. On the 13th the accused was in Palakkad and on the 14th at 5 p.m. he was in Madras. PW-14 a practicing lawyer at Palakkad said that, he is residing at West Yakkara about half a kilometer away from the burial ground and that on 13-2-1989 at about 11 p.m. the accused came to his house; he was not cross-examined. At about 7 p.m. on 13-2-1989 the deceased was seen in the company of the accused, at about 11 p.m. on the same day the accused came to the house of PW-14 alone, the dead-body of Gouri was found in the burial ground in the early morning of 14-2-1989, and at about 5 p.m. on 14-2-1989 the accused was found in suspicious circumstance by PW-16, Inspector of Police attached to the C2 Elephant Gate Police Station, Madras. If this piece of evidence is accepted, the same brings out a highly incriminating circumstance against the accused inasmuch as the same would show that the accused absconded after the occurrence.
25. But the learned Counsel for the appellant attacked the evidence of PW-14 contending that the whole evidence is inadmissible as the same is priviledged under Section 126 of the Evidence Act. It was also contended by the learned Counsel for the appellant that the witness was examined without summons. The said argument does not appear to be correct. PW-14 is CW-10. The proceedings paper of the lower court shows that the learned Sessions Judge issued summons to witnesses inclusive of CW-10 to appear on 24-7-1990. On 24-7-1990 CW-10 was present, but was not examined. The case was then adjourned to 25-7-1990 and 26-7-1990. On those days CW-10 was not present, but on the next posting on 27-7-1990 CW-10 was present and he was examined as PW-14. On 27-7-1990 the counsel appearing for the accused filed Crl. M.P. 430 of 1990 objecting to the examination of PW-14. Learned Sessions Judge overruled the objection stating that the witnesses will not be permitted to disclose any professional communication made or advice tendered. As per Form No. 33 read with S.61 of the Cr.P.C. where a witness is summoned to appear on a particular day, he should not depart without leave of Court. Thus, CW-10 having been summoned, he was bound to be present until he is examined or permitted to leave. Therefore, his presence on 27-7-1990 can only be treated as pursuant to the summons issued to him; and it is not correct to say that the witness was examined without summons having been issued to him.
26. Now the contention of the learned Counsel is, the evidence of CW-10 would amount to a communication within the meaning of Section 126 of the Evidence Act and therefore, the same cannot be accepted. Reliance was made by the learned Counsel on the decision in Hakam v. Emperor, AIR 1934 Lahore 269 : (1935 (36) Cri LJ 31). In that decision it is held that, Section 126 of the Evidence Act is not restricted to oral communications only but extends to facts observed by the Pleader in the course of and for the purpose of his employment and that he is not bound to disclose them without the consent of the client. In that case a complaint under Section 498, IPC was filed on the allegation that one Mt. Wasai was enticed away by certain persons. While that complaint was pending, the said Mt. Wasai filed a suit in the Civil Court for cancellation of her marriage. The advocate who filed the civil suit was cited in the criminal case as a witness. To a question whether he has filed a civil suit, he answered in the affirmative. When he was asked whether the lady came to him alone or accompanied by some other person he said that she was accompanied by another man. But when he was further asked who that companion was, the Pleader refused to answer claiming privilege under Section 126 of the Evidence Act. It was in the said context the court held that, anything observed by the Pleader at the meeting was in the nature of a confidential communication which the Pleader cannot disclose without the consent of his client. The case is certainly distinguishable inasmuch as, there was no dispute that the lady in that case met the witness for professional purpose and she engaged him for filing a case. Thus, the occasion for the Pleader to observe the conduct was during the course of his professional employment. No such fact exists in this case. The very section would show that, the communication should have been made in the course and for the purpose of his employment as such barrister, pleader, attorney or vakkil on behalf of the client. The communication should have been while the relationship of attorney and client subsisted. Here, all that PW-14 said is, he is residing about half a kilometer away from the burial ground and that at about 11 p.m. on 13-2-1989 the accused came to his house. The witness was not cross-examined. We do not consider that the said piece of evidence will fall under Section 126 of the Evidence Act. When such is the situation, as noticed, the accused was near about the scene of occurrence at 11 p.m. on 13-2-1989 and he was alone, a circumstance which is incriminatory inasmuch as he was found near the scene of occurrence.
27. The next aspect to be noticed is at about 5 p.m. on 14-2-1989 he was found in a suspicious circumstance in Madras. The explanation by the accused is that he put Gouri in a bus bound for Perintalmanna as she was not willing to stay at Yakkara and that he along with DW-1, his brother-in-law left for Madras. DW-1 was not questioned by the police. DW-1 was not believed by the learned Sessions Judge. He simply appears as a person claiming to have accompanied the accused and Gouri to the house of PW-6 and on learning that their sister in Madras was laid-up, he along with the accused left for Madras.
28. The case of the accused that he saw Gouri board a bus bound for Perintalmmanna in the evening of 13-2-89 cannot be accepted with due regard to the circumstances discussed above. Thus, it is clear that after the occurrence the accused bolted from the scene and reached Madras by the evening of 14-2-1989. In the decision in Kartarey v. State of U.P., AIR 1976 SC 76 : (1976 Cri LJ 13) it is held:
To be an 'absconder', in the eye of law, it is not necessary that a person should have run away from his home, it is sufficient if he hides himself to evade, the process of law, even if the hiding place be his own home.
The circumstances discussed above certainly would show that the accused left to evade the process of law and hence it is evident that he absconded. In the context that also is a highly incriminating circumstance against the accused.
29. Learned Director General of Prosecution also relied on the recovery of MOs. 23, 24, 25 and 26 under Exts. P6 and also the recovery of MO-27 knife under Ext. P7. PW 8 is an attestor to Ext. P6 and PW 9 is an attestor to Ext. P7. MO-27 is the weapon with which the accused is alleged to have inflicted the injuries and MO-26 is alleged to the sheath of MO-27. MOs. 23 to 25 are alleged to be the dress worn by the accused at the time of occurrence; of these MO. 23 shirt had human blood stain as per Ext. P14 report from the Forensic Science Laboratory. It was maintained by the learned Director General of Prosecution that these recoveries were made pursuant to the information received from the accused and therefore the confessions made by the accused which led to the recovery of the said MOs. are admissible under S.27 of the Evidence Act. On the other hand, the learned Counsel for the appellant maintained that the said confessions since are not properly proved are not admissible in evidence. We may first take up the recovery of MO. 23 shirt, MO. 24 Pant, MO. 25 jetty and MO. 26 Sheath under Ext. P6.
30. PW 16, Inspector of Police at C2 Elephant Gate Police Station, Madras has sworn to the confession made by the accused. PW 15 claimed that he was present at the time of the arrest of the accused by PW 16 and that he translated into Tamil what the accused said in Malayalam. The recoveries were effected by PW 19, Circle Inspector of Police, Palakkad Town Police Station. As noticed according to the prosecution MO. 26 sheath is that of MO. 27 knife sold by PW 10 to the accused at about 9 a.m. on 13-2-1989. Ext. P6 recovery was effected on 17-2-1989. It was contended, that in view of the admission by PW 19 that remand report dated 17-2-1989 stated that the dress of the accused has to be recovered, the recovery cannot be relied on. But since the said recovery was on 17-2-1989, the said admission by PW 19 cannot affect the recovery. PW 8 is the attestor to Ext. P6. The evidence of PW 8 and PW 19 would show that the recovery was made from the well of a canal not far away from the scene of occurrence. That would show that they were concealed. But though the confession by the accused is sworn to by PW 16, neither the said confession in the words of the accused or its, translation is incorporated in Ext. P6 nor is the said part of the confession produced, before Court; and the confession attributed to the accused does not mention MO. 26. In such circumstances the confession cannot be admitted in evidence under S.27 of the Evidence Act. But the evidence of PWs. 8 and 19 would show, the said material objects were recovered from the well of the canal, as pointed out by the accused. Thus the said conduct of the accused in pointing out the said material objects from the place of concealment becomes relevant and is admissible under Section 8 of the Evidence Act. Though the confession is not admissible under Section 27 of the Evidence Act MO. 26 which was sold by PW 10 along with MO. 27 knife was seized from a canal is a relevant circumstances to be reckoned. PW 11, a tailor at Perintalmanna said that he stitched MO. 23 shirt for the accused, PW 11 said "Angel Dress Makers" inscribed in sticker of the shirt belongs to him and that he stitched the shirt for the accused. Ext. P14 Chemical Analyst's report found human bloodstain in MO. 23. With due regard to the evidence of PWs. 8, 10 and 11, it is clear that MOs. 23, 26 and 27 belong to the accused. Those were seized by the investigating authority.
31. Learned Director General of Prosecution argued that the confession which led to the recovery of MO. 27 knife is admissible because PW 16 has sworn to the confession and the recovery was made pursuant to the same. It was maintained by the learned Director General of Prosecution that it is not necessary that the same person to whom the confession was made should recover the material objects. Reliance was made by the Director General of Prosecution on the decision in Sekharan v. State of Kerala, 1979 KLT 337 : (1980 Cri LJ 31). It is true, for the purpose of the application of Section 27 of the Evidence Act, it is not necessary that the person who received the information and the person who made the recovery should be the same. But what Ext. P7 would state is that PW 19 questioned the accused after getting custody of the accused from the Sub Jail and he revealed to his having abandoned the knife near the scene of occurrence and if he is taken to that place, he would show the same. Thus Ext. P7 recovery purports to be on the basis of the confession made to PW 19 and not on the basis of the confession made to PW 16 at Madras. PW 19 does not swear to the confession made to him by the accused. He does not even mention the confession in his evidence. There is, thus, not even substantive compliance with Section 27 of the Evidence Act. The said confession mentioned in Ext. P7 also is not thus admissible.
32. The evidence of PW 9 along with that of PW 19 would show that the accused led the police to the paddy field near the burial ground and pointed out the knife which was seen lying abandoned on the bund of the paddy field and was seized under Ext. P7. Thus, M.O. 27 was recovered as pointed out by the accused. This has got enough corroboration from the evidence of PWs. 9 and 10. The evidence would show that the place from where M.O. 27 was recovered was near the burial ground. The very character and nature of the place is such that the same was not frequented by others. Though the confession of the accused is not admissible under Section 27 of the Evidence Act the very conduct of the accused in leading the police to the said place and pointing out the place of concealment of M.O. 27 is relevant and admissible under Section 8 of the Evidence Act. The Supreme Court in the decision in Prakash Chand v. State (Delhi Admn.), AIR 1979 SC 400 : (1979 Cri LJ 329) held that the evidence of the circumstance that the accused led to the police officer and pointed out the place where the weapon which might have been used in the commission of the offence were found hidden would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act. Thus the seizure of M.O. 23 shirt that belonged to the accused which had human blood stain, and M.Os. 26 and 27 sold to the accused by PW 10 are circumstances which would support the prosecution case.
33. In a case which rests on circumstantial evidence the circumstances should be cogently and firmly established, those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; 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 the said circumstances must be incapable of any hypothesis other than the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should also be inconsistent with his innocence. (Gambhir v. State of Maharashtra, 1982 SCC (Cri) 431 : (1982 Cri LJ 1243). In the decision in State of A.P. v. I.B.S.P. Rao, AIR 1970 SC 648 : (1970 Cri LJ 733) the Supreme Court held : "Further, it is not necessary that every one of the proved facts must in itself be decisive of the complicity of the accused or point conclusively to his guilt. It may be that a particular fact relied upon by the prosecution may not be decisive in itself, and yet if that fact, along with other facts which have been proved, tends to strengthen the conclusion of his guilt, it is relevant and has to be considered. In other words when deciding the question of sufficiency, what the Court has to consider is the total cumulative effect of all the proved facts each one of which reinforces the conclusion of guilt, and if the combined effect of all those facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that any one or more of those facts by itself is not decisive." In the decision in State of U.P. v. Ashok. Kumar Srivastava, 1992 (1) JT SC 340 : (1992 Cri LJ 1104) also it is held that in circumstantial evidence the cumulative effect of all the facts so established must be consistent with the hypothesis of guilt; it does not mean that prosecution evidence must be rejected on slightest doubt.
34. The evidence would show that the accused had the motive to do away with Gouri, on 13-2-1989 before he started from Parintalmanna with Gouri at 3 p.m. he purchased M.O. 27 knife with M.O. 26 sheath, Gouri was in his company till 7 p.m. on 13-2-1989, the accused was seen alone at 11 p.m. on 13-2-1989, he was arrested at 5p.m. on 14-2-1989 from Weltex Road in front of Lakshmi Bhavan Lodge, Madras, his Shirt M.O. 23 seized from a canal at Palakked was found to contain human blood stain, M.O. 27 knife was recovered as pointed out by the accused, and PW 12 who conducted the autopsy said that the injuries on Gouri as well as the foetus could be caused with M.O. 27. These circumstances are firmly and convincingly established the same cumulatively would form a complete chain, there is no escape from the conclusion that it was the accused who committed the crime; and the same are not capable of any hypothesis other than the guilt of the accused, the same are also inconsistent with the innocence of the accused. That being the position, we do not find any reason to interfere with the finding, conviction and sentence awarded by the learned Sessions Judge. The appeal is without merit and the same is liable to be dismissed which accordingly is hereby dismissed.