Bail Slip The Appellant, namely Kumaravel (28 years) S/o Manickam are directed to released on bail by the order of this Court dated 12.7.2006 made in Crl.MP.No.1 of 2006 and Crl.App.No.567/2006 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.06.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.567 of 2006 Kumaravel .. Appellant vs. The State represented by the Inspector of Police Morappur Police Station Morappur, Harur Taluk Dharmapuri District (Crime No.404/2002). .. Respondent Criminal Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment of the learned Additional Sessions Judge, (Fast Track Court), Dharmapuri, dated 01.06.2006, in Sessions Case No.29 of 2005. ----- For Appellant : Mr.R.John Sathyan for M/s.V.Nicholas For Respondent : Mr.N.R.Elango Addl. Public Prosecutor ----- https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Delivered by P.D.DINAKARAN,J) Totally two persons were tried in S.C.No.29 of 2005 on the file of Additional Court of Sessions (Fast Track Court) Dharmapuri under Sections 302 and 201 I.P.C. A.2 was acquitted by the learned Trial Judge for the charge under Section 201 I.P.C. However A.1 was convicted under Sections 302 and 201 I.P.C., for which he stands sentenced to undergo imprisonment for life together with a fine of Rs.1,000/- carrying a default sentence for the offence of murder and for causing disappearance of evidence of offence, he stands sentenced to undergo two years rigorous imprisonment with a fine of Rs.1,000/- in default to undergo three months simple imprisonment. Therefore A.1 alone is before this court in this appeal. The State has not challenged the acquittal of A.2 till date. 2. A.1 and A.2 are the husband and mother-in-law of the deceased Valarmathi respectively. The charge against the accused is that on 25.9.2002 at about 9.00 p.m. at the matrimonial home at Kottrapatti Kottai, A.1, suspecting the fidelity of his wife Valarmathi, cut her with M.O.4 aruvamanai over the left side of her neck and caused her death instantaneously and thereafter, in order to cause disappearance of evidence of offence, both the accused placed the body of the deceased in a gunny bag, took it in a bicycle and placed it on the railway track nearby Chinthalpadi periapalam near Thonganoor railway station, thereby A.1 committed the offences punishable under Sections 302 and 201, I.P.C. and A.2 committed the offence punishable under Section 201 I.P.C. 3. The case of the prosecution, as discerned from the evidence of prosecution witnesses, is as follows. (i) A.1 and A.2 are the husband and mother-in-law of the deceased respectively. P.W.3 Mooka Gounder and P.W.4 Adhimoolam are the father and brother of the deceased respectively. (ii) P.W.1 Shaji, who is the Assistant Station Master, Morappur, had deposed that on 26.9.2002 at about 9.15 a.m., P.W.2 Kaveri, who is working as Gang Mestri, had informed him that a female dead body was found on the railway track near Sinthalpadi periapalam and that he lodged a complaint to the railway police. (iii) P.W.14 Vijayakumar, Head Constable, Morappur Outpost Police Station, on receipt of written complaint from P.W.1, registered a case in Salem Railway Police Crime No.285 of 2002 https://hcservices.ecourts.gov.in/hcservices/ under Section 174 Cr.P.C., prepared Ex.P6 First Information Report and sent the same to the Tahsildar, Aroor and to the higher officials. He took up the case for investigation and went to the scene of accident along with with P.W.13, Alagesan, Constable, and as nobody claimed the body, he sent the same to the mortuary at Salem Government Hospital. However, on 27.9.2002, P.W.3 informed him that the deceased is his daughter Valarmathi. (iv) P.W.3, father of the deceased, had deposed that the marriage between A1 and the deceased took place ten months prior to the occurrence and both of them lived in their matrimonial home along with A.2, that the deceased complained that A.1 neglected the family and spent his earnings for alcohol, that on one day prior to the date of occurrence, the deceased came to her parental house and after doing agricultural work, she went home at about 8.30 a.m. on the next day stating that she had to go to her field for weeding, that on 26.9.2002 at about 7.00 p.m., the first accused came to his house and asked whether the deceased had come to their house and he replied that she had not come, that thereafter, he along with P.W.4 went in search of the deceased at various places and that on coming to know that a dead body was seen near Thonganoor and it was taken to the mortuary at Salem Government Hospital, he went to the hospital and identified the deceased as his daughter. (v) P.W.4, brother of the deceased, had deposed that since A.1 suspected the fidelity of the deceased, there were frequent quarrels between A.1 and the deceased and panchayat was also convened, that on 24.9.2002, he went and brought the deceased to his house and the deceased went home on the next day i.e. on 25.9.2002 at 8.30 a.m. after doing agricultural work, that there was quarrel between A.1 and the deceased on that night and that thereafter, he had not seen the deceased and then he along with P.W.3 searched for the deceased and identified the deceased only at the hospital. (vi) P.W.8 Sankar, nephew of P.W.3, had deposed that on 25.9.2002 at about 1.30 a.m. while he was coming from Kadathur, he saw the first accused was carrying a gunny bag in the cycle carrier and when he questioned the same, the first accused replied that the gunny bag has groundnuts meant for the market. He had also deposed that the first accused was wearing bloodstained shirt and lungi and when he enquired the same, he replied that it was because of plucking of groundnuts. He also added that two days thereafter, he heard that a female body was found at the railway track near Periapalam and A.1 murdered his wife. (vii) P.W.17 Nallusamy, Special Sub Inspector took up the case for further investigation. Since the deceased died within ten months from the date of marriage and as P.W.3, father of the https://hcservices.ecourts.gov.in/hcservices/ deceased, made a complaint suspecting the death of the deceased, he gave a requisition to the Revenue Divisional Officer for conducting inquest over the body of the deceased. (viii) On receipt of requisition from P.W.17, P.W.19, Revenue Divisional Officer, Salem, conducted inquest over the dead body in the presence of panchayatdars on 28.9.2002 and prepared Ex.P.14 inquest report and Ex.P.15 special report sent by him to the Judicial Magistrate No.III, Salem. He gave Ex.P.11 requisition for conducting post-mortem. (ix) P.W.16 Dr.Ravi Sankar attached to Government Hospital, Salem, on 29.9.2002 conducted autopsy over the dead body and found the following injuries: 1. Obliquely placed, widely gaping cut injury with sharp margins and acute ends over the left side of forehead from the inner end of left eyebrow extending upwards and outwards 3.5cms x 1cm bone deep. 2. Obliquely placed widely gaping cut injury with sharp margins and acute end over the left side of forehead from the outer end of left eye brow extending upwards inwards 3.5cms x 1cm bone deep. 3. Obliquely placed widely gaping cut injury with sharp margins and acute ends over the right side of chin 3 x 1cm – bone deep. 4. Obliquely placed widely gaping cut injury with sharp margins and acute ends over the left side of chin 3 x 1cm bone deep. 5. Transversely placed widely gaping deep cut injury with sharp margins over the upper part of right side of neck 1.5cms below the angle of lower jaw 3.5cms x 1cm, deeper at the back portion and with tailing at the front portion. 6. Transversely placed widely gaping deep cut injury with sharp margins over the upper part of left side of neck 1.5cms below the angle of lower jaw 3.5cms x 1cm, deeper at the back portion and with tailing at the front portion. 7. Obliquely placed, widely gaping cut injury with sharp margins over the front and inner aspect of right upper arm deeper at the front and with tailing at the inner side muscle deep. 8. Obliquely placed widely gaping cut injury with sharp margins and acute ends over the back of upper 1/3rd of left forearm. 5X2cms muscle deep. 9. Obliquely placed widely gaping cut injury with sharp margins 24x6cms – thoracic cavity deep over the front of chest on the right side, 2cms below the level of right nipple involving the right 4th intercostal https://hcservices.ecourts.gov.in/hcservices/ muscle. The wound deeper on the outer side and with tailing on the inner side. Corresponding to the above mentioned injury Nos.1 to 9. (a) Extraction of blood into the deep subcutaneous tissues and muscle over the whole of left half of frontal region of scalp. (b) The lower jaw was found cut through and through corresponding to the internal injuries with loosening of teeth and infiltration of blood into the surrounding muscles and soft tissues. (c) Over the upper part of both sides of neck the muscles were cut through and through, the common carotid artery, jugular vein were cut through and through and all other structures in that area were clean cut and there was evidence of massive haemorrhage from the cut major vessels and other statures. (d) The right 4th ic muscle was found cut through and correspondingly upper part of middle lobe and front aspect of right lung were found cut entirely with evidence of infiltration of blood into the surrounding tissues and massive drainal of blood from the right side of thoracic cavity out side. Thus indicating that injury nos. 1 to 9 were antemortem. 10. Abrasions seen over (a) outer aspect of upper 1/3rd of right thigh 4x3cms. (b) front of right knee 2x1cms and (c) front of left knee 3x2cms. The following injuries were seen with no evidence whatsoever of any vital tissue reaction with the involved tissues dry, pale and bitreless. 11. Head and face were found crushed from side to side with communicated fracture involving all the bones of vault and base of skull and facial bones. 12. Decapitation at the level of C6-C7 with crushing of all tissues, shattering of left collar bone crushing of left collor bone crushing of left shoulder joint, pulping of upper lobe of left lung total crushing of tissues and shattering of bone of upper half of theft upper arm, the rest hanging by means of crushed tages skin and subcutaneous tissues. The Doctor opined that the deceased would appear to have died of shock and haemorrhage due to multiple cut injuries. Ex.P12 is the post-mortem certificate issued by him. After completion of the post mortem, blood stained clothing of the deceased were recovered. (x) P.W.18, Inspector, Railway Police, Salem, on receipt of the case particulars from the Deputy Superintendent of Police, https://hcservices.ecourts.gov.in/hcservices/ Railway Police, Salem, altered the offence to one under Sections 302 and 201 I.P.C. and prepared Ex.P13 alteration report and sent the same to the Judicial Magistrate No.III, Salem and handed over the case records for further investigation to P.W.20. (xi) P.W.20, Inspector of Police, Morappur Police Station, on 6.11.2002 received the case in Crime No.285 of 2002 from the Superintendent of Police, Dharmapuri and registered a case in Crime No.404 of 2002 under Sections 302 and 201 I.P.C. and prepared Ex.P16 First Information Report. He took up the case for further investigation, went to the place where the body of the deceased was found, examined P.Ws.1 and 2 and others and recorded their statements and seized Ex.P17 Rough Sketch which had already been prepared by railway police. Thereafter, he went to the matrimonial home of the deceased at 12.30 p.m. and prepared Ex.P18 Observation Mahazar and Ex.P19 Rough Sketch in the presence of P.W.6 Rajendran and P.W.7 Kalvendran. At about 2.00 p.m., he seized M.O.8 bloodstained pillow cover, M.O.9 a piece of bloodstained cloth and M.O.10 sample cloth under Ex.P1 Mahazar in the presence of the same witnesses and Exs.P2 and P3 are the signatures of P.Ws.6 and 7 in Ex.P1 Mahazar. On the same day, he examined P.Ws.3, 4, 5, 6 and 7 and recorded their statements. On 7.11.2002 at 6.00 a.m., he arrested A1 and recorded his voluntary confession in the presence of P.W.12 Thanikachalam, Village Administrative Officer and another. Ex.P4 is the admissible portion of the confession statement. Pursuant to the confession, A1 took P.W.20 and witnesses to his house and produced M.O.4 aruvamanai, M.O.5 bloodstained shirt, M.O.6 bloodstained lungi and M.O.7 cycle and the same were recovered under Ex.P5 mahazar. On the same day, he had also arrested the second accused. On 25.11.2002, he gave Ex.P7 requisition to the Judicial Magistrate's Court to send the case properties for chemical examination. (xii) P.W.15 is the Court Clerk, who received the material objects from P.W.20 and on the direction of the learned Magistrate, sent the same to the Forensic Lab for chemical examination. Exs.P9 and P10 are the Chemical Analysis Report and Serology report respectively. (xiii) P.W.20 completed the investigation and after following all the legal formalities, filed the final report in the court against the accused under Sections 302 and 201, IPC on 31.12.2002. 4. After the case was committed to Court of Sessions, the accused were questioned and they denied their complicity. Hence, the trial commenced. To substantiate the charge against the accused, the prosecution examined 20 witnesses, marked 20 exhibits and produced 10 material objects. On completion of evidence on the https://hcservices.ecourts.gov.in/hcservices/ side of prosecution, the accused were questioned under Section 313 Cr.P.C. on the incriminating materials, for which the accused made a total denial. Neither any witness was examined nor any document was marked on his side. 5. The trial Court, on scrutiny of materials placed and on hearing the arguments of both sides, found the appellant/first accused guilty of the charges under Sections 302 and 201 I.P.C. and accordingly, convicted and sentenced him as referred to earlier and acquitted the second accused of the charge under Section 201 I.P.C. Hence, the present appeal by the first accused. 6. Mr.John Sathyan, learned counsel for the appellant assailing the judgment of the trial Court, made the following submissions: (i) the entire prosecution case rests on the circumstantial evidence and the prosecution has not produced any clinching circumstance implicating the appellant in the crime and there are several missing links and as such, the chain of circumstances is not completed; (ii) the prosecution failed to establish the motive part of the occurrence, which is vital in the case of circumstantial evidence, as no independent witness was examined to speak about the frequent quarrel between the appellant and the deceased though the house of the appellant was surrounded by number of houses; (iii) there is absolutely no circumstance or any evidence available on record to show that both the accused and the deceased were seen together, as the evidence of P.Ws.3 and 4 only shows that the deceased left the house on 25.9.2002 morning to the field for weeding and the evidence of P.W.8 shows that he saw the accused with bloodstained shirt, but nobody had stated anything about the seeing of the accused with the deceased prior to the occurrence; (iv) if the occurrence took place as alleged by the prosecution, there would have been more blood on the floor of the house, but no blood was found as per the observation mahazar, except the seizure M.O.10, a small piece of bed sheet containing bloodstains and therefore the prosecution has miserably failed to prove the place of occurrence as that of the house of the appellant; (v) though the headless body and head of the deceased were found in different place, P.W.16, post- https://hcservices.ecourts.gov.in/hcservices/ mortem Doctor, had not conducted autopsy over the headless body and head separately and therefore, his evidence could not be relied upon to come to the conclusion that he has conducted autopsy on the body of the deceased; and (vi) the arrest and recovery of material objects were not substantiated through the acceptable evidence and therefore, the circumstances relied on by the prosecution are not at all sufficient to connect the appellant with the crime. 7. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor submits that the prosecution has put forward clinching and consistent circumstances to implicate the accused; that the motive put forward by the prosecution is proved through the evidence of P.Ws.3 and 4, who had categorically stated about the frequent quarrel between the appellant and the deceased and as per the evidence of P.W.4, the appellant suspected the fidelity of the deceased; the last seen theory is also proved through the evidence of P.Ws.3, 4 and 8, as P.Ws.3 and 4 had stated that the deceased left their house prior to the occurrence and on the next day, the appellant came to their house and enquired as to whether the deceased had come to their house and P.W.8 had stated that he saw the accused after the occurrence with the bloodstained cloth; that the recovery of M.O.10 bloodstained piece of bed from the house of the appellant clearly shows that the incident could have taken place inside the house; that the suspicious conduct of the appellant in not lodging any complaint to the police and in not seeing the body of the deceased at the hospital and absconding till his arrest; and that the prosecution has proved the arrest and recovery of weapon through the evidence of P.W.12, Village Administrative Officer and that therefore, the conviction and sentence are sustainable in law. 8. We have perused the entire materials available on record, heard the submission of both sides and considered each and every circumstance put forward by the prosecution. 9. It is not in dispute that the deceased Valarmathi died on account of homicidal violence. A perusal of the evidence of the doctor, P.W.16 and Ex.P12, post-mortem certificate would reveal that the deceased died on account of shock and haemorrhage due to multiple cut injuries. The doctor has specifically stated in his evidence that 1 to 9 injuries could have been caused with M.O.4 aruvamanai. Therefore, we have no hesitation to hold that the death of the deceased was due to homicidal violence. https://hcservices.ecourts.gov.in/hcservices/ 10. The point for consideration in this appeal is whether the prosecution has brought home the guilt of the accused beyond all reasonable doubts? 11. The prosecution case hinges upon circumstantial evidence, as the occurrence was not witnessed by anyone. Before delving into the issue, it is apt to refer the ruling on the circumstantial evidence. 12.1. In Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622], it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established and they are: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 12.2. Again, in Padala Veera Reddy v. State of A.P. [AIR 1990 SC 709] it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; https://hcservices.ecourts.gov.in/hcservices/ (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) 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 (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence." 12.3. The above judgments were quoted with approval by the Apex Court in the judgment in Manjunath Chennabasapa Mudalli v. State of Karnataka (2007) 3 SCC (Crl.) 101. 12.4. It is, therefore, clear that the prosecution must prove all the circumstances connecting unbroken chain of links leading to only one inference that the accused committed the crime. 13.1. Now, let us analyse the circumstances put forward by the prosecution in the light of the settled principle of law laid down by the Apex Court in the decision cited supra. 13.2. In the case on hand, the prosecution placed reliance on the following circumstances: (i) Motive as spoken to by P.Ws.3 and 4, the father and brother of the deceased; (ii) Last seen theory as spoken to by P.Ws.3, 4 & 8; (iii) Recovery of bloodstained bed sheet from the house of the accused to establish that the occurrence took place inside the house; (iv) The arrest and recovery as spoken to by P.W.20 Investigating Officer as well as P.W.12 Village Administrative Officer; and (v) The conduct of the accused in not lodging any complaint to the police and in absconding till the date of his arrest i.e. on 7.11.2002. https://hcservices.ecourts.gov.in/hcservices/ 13.3. As regards motive, we have no hesitation to conclude that the prosecution has proved it through the evidence of P.Ws.3 and 4. P.W.3 had stated that the appellant neglected the family and used his income for alcohol and P.W.4 had specifically stated that the appellant suspected the fidelity of the deceased, due to which there were frequent quarrels between them and panchayat was also convened. Their evidence is not shattered by the defence during the course of cross examination in respect of the alleged motive of the appellant suspecting the fidelity of the deceased and the frequent quarrel between them. 13.4. The next incriminating circumstance viz., the last seen theory, is also proved by the prosecution beyond reasonable doubt through the evidence of P.Ws.3, 4 and 8. P.Ws.3 and 4 in their evidence have stated that the deceased left their house prior to the occurrence i.e. on 25.9.2002 morning and the occurrence is said to have taken place in the night at 9.00 p.m. It is their further evidence that on the next day i.e. on 26.9.2002 at 7.00 p.m., the appellant came to their house and asked him about the whereabouts of the deceased. The evidence of P.W.8 is also very vital to prove that he saw the appellant with the bloodstained cloth and for that no proper explanation was given by the appellant. Therefore, the contention of the learned counsel that the prosecution failed to establish the last seen theory is rejected. 13.5. Yet another clinching circumstance is to the effect that the occurrence took place in the house of the appellant for which prosecution has rightly placed reliance on the seizure of a piece of bloodstained bed sheet from the house of the appellant. Though it is stated by P.W.6 in the cross examination that he signed the mahazar only at the police station, the fact remains that his version of seizing the said bloodstained piece of bed sheet M.O.10 from the house of the appellant remains unchallenged by the defence. Therefore, it is quite clear that the occurrence could have taken place inside the house of the appellant and as such, it is for the appellant to give proper explanation for the death of the deceased. 13.6. The prosecution has convincingly proved