IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 05.03.2008 Coram:- The Hon'ble Mr. Justice P.D.DINAKARAN and The Hon'ble Mr. Justice R.REGUPATHI Criminal Appeal No.417 of 2006 P. Thangavelu ... Appellant/Accused vs. State rep. by the Inspector of Police, R.K. Pet Police Station, Thiruthani Taluk, Thiruvallur District. (Crime No.232/2000) ... Respondent/Complainant Appeal against the Judgment of the Additional District & Sessions Judge, Fast Track Court No.5, Chengalpattu at Tiruvallur, in Sessions Case No.72 of 2001, dated 12.4.2004. For Appellant : Mr. T.S.N.Prabakaran For Respondent : Mr. N.R.Elango, Addl. Public Prosecutor. J U D G M E N T R.Regupathi, J. The appellant herein was tried by learned Additional District Sessions Judge, Fast Track Court No.5, Chengalpattu at Tiruvallur, in Sessions Case No.72 of 2001, for charges under Sections-302 and 201 IPC. The learned trial Judge found the appellant/accused guilty as charged and sentenced him to undergo life imprisonment for the conviction under Section 302 IPC. and to pay a fine of Rs.2,000/-, in default, to undergo imprisonment for six months; and three years R.I. for the offence under Section 201 IPC. and a fine of Rs.1,000/-, in default, to undergo imprisonment for three months. The sentences imposed were ordered to run concurrently. Aggrieved by the order of conviction and sentence passed by the trial court, the accused has preferred the present Criminal Appeal before this Court. https://hcservices.ecourts.gov.in/hcservices/ 2. On 19.04.2000, at 2.30 A.M., the accused, who was residing in a hut at Edapattarai @ Padmanabhapuram Village which falls within the jurisdiction of R.K. Pettai Police Station, called his wife for sex and on her refusal, with an intention to cause death, assaulted her on the right cheek below the right ear by giving a violent fist and as a result thereof, she became unconscious. Thereafter, he strangled her by tying a rope around the neck and thereby caused death to her; hence, the trial Judge framed the first charge for an offence punishable under Section 302 IPC. After committing the murder of the deceased, the accused carried the dead body to a nearby brook adjacent to the sand-quarry and buried the body with an intention to screen the offence committed by him; thus, the second charge under Section 201 IPC. was framed, and the case was taken up for trial. 3. The case of the prosecution, as unfurled by its witnesses, is as follows:- a) PW-1 is the Village Administrative Officer of Padmanabhapuram Village. On 03.05.2000, at about 9 A.M., the accused came to him and gave a statement under Ex.P1 to the effect that his wife/deceased refused his call for sexual intercourse, whereupon, he assaulted her below her cheek and after she had become unconscious, he tied rope around her neck and shifted the dead body to a nearby brook and buried her there. Thereafter, PW-1 took the accused to the police station accompanied by PWs-2 and 3, V.A.Os. of neighbouring Villages, who were standing at the Bus-Stand. b) PW-16 is the Sub Inspector of Police, who, on receipt of the report given by PW-1 under Ex.P2, attested by PWs-2 and 3, along with the statement of the accused, registered a case in Crime No.232 of 2000 for the offence punishable under Section 302 IPC. He prepared Express F.I.R. and despatched the same to his superior officers and the Revenue Divisional Officer. Ex.P8 is the Printed F.I.R. c) PW-17, the Inspector of Police, on receipt of the Express Report, took up investigation and he was assisted by PW-16, the Sub Inspector of Police. He examined the accused and recorded his statement in the presence of witnesses. As the accused stated that he would show the place where he concealed the body of the deceased, PW- 17 took him along with PW-1 and other witnesses to the scene of occurrence and the accused pointed out the place where he had buried the dead body. PW-17 instructed PW-13 and Village Thalayari (Village Head) to guard the place where the body was buried and returned back to the police Station. He gave a requisition to the Revenue Divisional Officer, Tiruttani, for exhumation of the dead body and a copy of such requisition was sent to PW-10 Tahsildar. He also made requisition to the Medical Officer, Chennai Medical College, for conducting post mortem over the dead body of the deceased at the https://hcservices.ecourts.gov.in/hcservices/ site, where the dead body was buried. On 04.05.2000, PW-10 Tahsildar conducted enquiry, during which time, PW-17 was present and assisted him. PW-17 prepared observation Mahazar Ex.P5 and rough sketch under Exs.P-9 & P-10. He caused photographs of that place to be taken through a Photographer and MO-13 series are the photographs. d) On 05.05.2000, at about 4 P.M., PW-12, the Medical Officer reached the scene of occurrence and the body of the deceased was disinterred. The body was in a highly decomposed condition and the neck was found to be tied with a rope. Autopsy was conducted at the site and the post-mortem certificate issued is marked as Ex.P-6, wherein, the following has been noticed:- " Body lies on back with flexion of right leg, flexion and abduction of left leg, right forearm protruding outside the soil. The body was covered with red sari with multiple coloured flowers (from head to foot). There was a rope (160 cm. X 1.5 cm. breadth) around the neck in three rounds. Both ears have studded. Right nose has nose-screw. No metti seen on her toes. Left palm is missing. Right forearm missing. Both legs are seen. Injuries: 1)Abrasion and ecchymosis 5 x 3 cm. on right cheek in front of ear 2) On removal of rope the underlying skin and rest of the skin on the neck is decomposed. Soft tissues and neck muscles are seen contused. Thyroid cartilage is not seen. Both the horns of hyoid bone are seen fracture with contusion at the fracture site. Larynx and trachea are seen bruised. HEART: Early autolytic changes seen LUNGS: Cut section: Decomposed STOMACH:Empty Mucosa-decomposed KIDNEYS: Decomposed oBLADDER: Empty UTERUS: Uterine cavity empty. Ovaries pale 6x5x2.5 cm. size BRAIN: Autolysed. OPINION: "DIED OF ASPHYXIA DUE TO STRANGULATION' " e) After post mortem, the Inspector of Police seized the dress materials, jewels and skull of the deceased and forwarded the same to the Magistrate Court through a Constable with a requisition to send those items for chemical examination, whereupon, the Judicial Magistrate forwarded those materials to the Forensic Laboratory accompanied by his letter Ex.P11. f) During the course of investigation, PW-17 examined PWs-4 to 6, https://hcservices.ecourts.gov.in/hcservices/ who are workers in the quarry where the accused was working. It is their evidence that both the accused and the deceased were living nearby the quarry in a hut and on the previous day, the accused, after completing his work, returned back to his residence and both the accused and the deceased were staying together at that time. On the next day, the accused complained to them that her wife was found missing and in search of her, he went to the village of PW-7, who is the father of the deceased, taking his child with him accompanied by PW-4 and her husband. g) PW-7, the father of the deceased, after receiving the intimation about the missing of the deceased, searched for her in the nearby places; thereafter, on coming to know that her daughter was done to death by the accused, he came to the spot where post mortem was conducted and identified the deceased as his daughter. h) PWs-8 and 9 are brothers of the deceased, who corroborated the evidence of PW-7, their father. They were also present at the time of post mortem and after seeing the nose-screw, ear-stud and dress materials of the deceased and looking at the face of the corpse, they identified the deceased as that of their sister. i) PW-10, the Tahsildar, who conducted enquiry and made arrangements for exhumation of the body, on conclusion of the autopsy, handed over the dead body of the deceased to her relatives. The report, dated 06.07.2000, sent by him to the Police in that regard is Ex.P3. In his evidence, he has stated that the body of the deceased was identified by her relatives PWs-7 to 9 by looking at the dress materials and jewels on the body as well as the face of the deceased. j) PW-11 is the mahazar witness for recovery of ear-stud MO-1, nose-screw MO-2, saree MO-3, petticoat MO4, blouse MO5 and rope MO-6, and he attested recovery mahazar Ex.P4 and Observation Mahazar Ex.P5. k) PW-13 is the Police Constable, who, on the direction of the Investigating Officer, guarded the place of occurrence till the arrival of Tahsildar and Medical Officer for exhumation and conducting autopsy over the dead body. l) PW-14 is the Head Constable through whom the Material Objects recovered from the body of the deceased and scene of occurrence were despatched to Court with Ex.P12, requisition of the Investigating Officer. He obtained the letter of the Magistrate Ex.P11 and handed over the material objects at the Forensic Laboratory. Ex.P14 is the report of the Serologist. m)PW-15 is the Scientific Assistant. She deposed that, on 17.5.2000, she received a photograph of the deceased along with a skull in two parts accompanied by Ex.P13, letter of the Magistrate https://hcservices.ecourts.gov.in/hcservices/ and conducted superimposition test with the aid of the Photograph. MOs.9 to 12 are the test photographs of the skull and that of the deceased. PW-15 opined that the skull fits in with the person found in the photograph. Ex.P7 is the report given by her in that regard. n) PW-17, the Inspector of Police, after collecting all relevant materials including medical and forensic reports, filed final report on 04.08.2000 for offences punishable under Sections 302 and 201 IPC. 4. The prosecution, in its endeavour to bring home the guilt of the accused, examined PWs-1 to 17, marked Exs.P.1 to P-14 and produced MOs-1 to 13. 5. On conclusion of the trial, the accused was questioned under Section 313 Cr.P.C. with regard to the incriminating materials/circumstances adduced by the prosecution. The accused denied commission of the offence and pleaded innocence. No oral and documentary evidence was adduced by the defence. The learned trial Judge found the accused guilty and convicted and sentenced him as aforementioned. Hence, the present Appeal. 6. Learned counsel for the appellant submits that there is no eye witness for commission of the offence by the accused and, concededly, the occurrence took place during midnight at 02.30 A.M. inside the residence of the accused. Apart from the statement given by the accused to PW-1/VAO, there are no clinching materials whatsoever to connect the accused with the crime. Though there is a prohibition for recording confession statement by a Village Administrative Officer, in the case on hand, an erroneous procedure has been adopted and based on such statement, investigation has been taken up. Inasmuch as the F.I.R. is based on a statement recorded in deviation from the established procedure, the whole case of the prosecution, which rests on such statement that had come into existence through an improper channel, must be thrown out. The other limb of the argument is that even if the statement of the accused is accepted to be acted upon, the starting point of the tussle between the accused and the deceased, which ultimately led to the assault by the accused, should not be ignored. According to him, when the accused requested the deceased to accompany for sex, it is the deceased who refused and, on being provoked by that, the accused is said to have assaulted the deceased on her cheek, as a result of which, she became unconscious and died, and only thereafter, thinking that blood may ooze out from the body of the deceased, the accused tied rope around her neck; in such circumstances, the first assault alleged to have been caused by the accused is not a voluntary and intentional one and as it was the outcome of provocation by the act of the deceased, at any rate, the offence under Section 302 IPC. is not made out and hence, a lesser sentence may be imposed. https://hcservices.ecourts.gov.in/hcservices/ Learned counsel further submitted that though it is the positive case of the prosecution that dead body of the deceased is that of the wife of the accused, the procedure followed for establishing the identity of the deceased is not in consonance with the legal procedure prescribed. The occurrence took place on 19.04.2000 and the exhumation took place on 05.05.2000, ie., 16 days after the occurrence. As the dead body was in a highly decomposed condition, it would not have been possible for PWs-7 to 10 to confirm the identity of the deceased; that being so, as the identity of the deceased has not been established, the case of the prosecution falls to ground. He finally submitted that though photograph of the deceased is said to have been recovered and sent through the learned Magistrate along with MO-7 skull for conducting superimposition test by the Scientific Assistant, such photograph has not been received by the Investigating Agency in the manner known to law. If such photograph was already available, it is not made clear, from whom it has been recovered and for such recovery, there is no mahazar and witness to speak about; in such circumstances, the superimposition test, not being conclusive proof, becomes invalid and the case of the prosecution is not substantiated. 7. Per contra, learned Additional Public Prosecutor submits that the deceased is none else than the wife of the accused. The accused was last seen alive in the company of the deceased in their own residence. In the evening prior to the fateful night, PWs-4 to 6 have seen them together inside the residence/hut and on the next day, it is the evidence of those witnesses that the deceased was found missing and such information has been divulged only by the accused. The circumstance that the deceased was last seen alive in the company of the deceased assumes importance and the same has been clearly spoken to by PWs-4 to 6. After surrender, it is the accused, who has taken the V.A.O./PW-1 and the Inspector of Police/PW17 to the scene of occurrence and identified the place where the dead body was buried by him. Further, the identity of the deceased has been well established through PWs-7 to 9, who are none else than the father and brothers of the deceased. On a perusal of their evidence, it is clear that the face of the deceased was intact and they could identify that the dead body was that of deceased Jayanthi. PW-10 Tahsildar also, in his cross examination, has stated that the face of the corpse was visible. To rule out possibility of doubt as to the identity of the deceased, the expert was examined and the Scientific Evidence gives a lending support. After conducting super imposition test with the skull and the photograph, the identity of the deceased has been established beyond reasonable doubts. According to him, the case of the prosecution which has been established beyond reasonable doubts by reason of clear evidence and strong circumstances cannot be thrown out on flimsy and trivial grounds. He referred to the decision https://hcservices.ecourts.gov.in/hcservices/ reported in 2007 3 SCC 1 (Ram Singh v. Sonia), dealing with the procedure to be followed by courts in the case of circumstantial evidence. 8. We have perused the materials available on record and carefully considered the rival contentions advanced on either side. 9. The question is, whether the prosecution has proved its case beyond all reasonable doubts. 10. PW-12 is the Doctor, who conducted autopsy on the body of the deceased and issued Ex.P6 Post Mortem Certificate, wherein he noticed abrasion and ecchymosis on right cheek and also found soft tissues and neck muscles contused and fracture with contusion in the horns of hyoid bone. He has opined that the deceased died of asphyxia due to strangulation and reiterated his opinion before court while tendering evidence. Thus, the medical evidence would amply prove that the deceased died of homicidal violence. 11. There are no eye witnesses to the occurrence and this is a case of circumstantial evidence. It is settled law that in a case based on circumstantial evidence, before the Court can record conviction, it must satisfy itself that circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully as to unerringly point only towards the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused. 12. It is on the basis of these principles that we shall proceed to examine the circumstantial evidence relied on by the prosecution in this case. 13. The relevant circumstances are as follows:- (I) The deceased was last seen alive in the company of the accused by PWs-4 to 6 in the evening prior to the fateful night. (II) The accused came voluntarily to PW-1/VAO and gave a statement under Ex.P1 narrating the sequence of events and admitting the offence committed by him. (III) The accused took the Investigating Officer to the place where he buried the deceased and exhumation of the dead body from the said place. (IV) Identification of the body as that of the deceased by PWs-7 to 9 and positive conclusion of the https://hcservices.ecourts.gov.in/hcservices/ scientific assistant who conducted the superimposition test. 14. In the light of the arguments advanced on either side, let us proceed to consider as to whether the prosecution has succeeded in establishing the above circumstances. 15. Circumstance No.I:- The deceased is none else than the wife of the accused. They were living together along with their tender child at their residence which is a hut nearer to the residence of PWs-4 to 6, who are independent witnesses and neighbours. They do not have any axe to grind against the accused. It is their positive evidence that both of them were staying inside the house during the night of the relevant day. In the morning, they came to know about the missing of the deceased only on the intimation of the accused. After searching for the deceased at various places, PW-4 and her husband accompanied the accused along with his child to the house of PW-7, father of the deceased. It is also the evidence of the prosecution witnesses that the marriage between the accused and the deceased took place three years ago and there were frequent quarrels between them. The uniform evidence of PWs-4 to 6, who were not subjected to cross-examination by the defence, is quite natural and we do not find any reason whatsoever to disbelieve their testimonies. Their evidence well established the 'last seen alive theory' beyond any iota of doubt. Further, the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased was found dead is not so wide so as to suggest possibility of any person other than the accused being the author/perpetrator of the crime. 16. Circumstance No.II:- PW-1, the Village Administrative Officer has deposed that, on 03.05.2000 at 9 am., the accused came to him and made a statement under Ex.P1 that he caused the death of his wife by giving a fierce blow on the cheek and tied a rope around her neck and thereafter buried her alongside the channel near his house. One important aspect to be noted in this regard is that the injury found on the dead body during the course of autopsy as well as the rope found around the neck of the deceased corroborates the statement made by the accused before PW-1 and weakens the rigour of argument advanced in that regard by the learned counsel for the appellant/accused. The accused specifically stated that he avoided divulging the fact out of fear that the police may beat him and that is why he came to PW-1 to inform as to what happened, whereupon, he was taken to the police station. Though there is some procedural irregularity in recording Ex.P1, simply on that ground, the case of the prosecution cannot be discarded as a whole. It is very clear from the evidence that the deceased came to PW-1 and voluntarily made a statement as to what he had committed and thereupon only, exhumation, identification, post-mortem etc. followed. The evidence of PW-1 the Village Administrative Officer was strictly corroborated by PWs-2 and https://hcservices.ecourts.gov.in/hcservices/ 3 and they have also accompanied PW-1 and attested the Report given by PW-1. It follows that the second circumstance is well established by the prosecution. 17. Circumstance No.III:- After surrender, the accused gave a statement under Section 27 of the Evidence Act to the Investigating Officer, subsequent to which, he took the police team to the place where he buried the body of the deceased. PW-1 and PW-10 have no grudge or animosity against the accused to depose falsely against him. It is the accused, who pointed out the place of concealment of the body and such conduct of the accused is of vital importance in cases of this nature. The evidence of the Investigating Officer, PWs- 1 and 10 to the effect that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 of the Act as to the conduct of the accused. In this regard, the observation made by the Supreme Court in the case law reported in 2005 SCC (Cri) 1938 (A.N.Venkatesh v. State of Karnataka) is quite appropriate and the relevant portion is extracted below:- " 9. By virtue of Section 8 of the Evidence At, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place, where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this court in Prakash Chand v. State (Delhi Admn) (1979 (3) SCC 90). Even if we hold that the disclosure statement made by the accused-appellant (Exts.P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and Pws1, 2, 7 and PW4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. ... " In another decision of the Supreme Court in State of Maharashtra v. Suresh (2000 SCC (Cri) 263), it has been held thus:- " Three possibilities are there when an https://hcservices.ecourts.gov.in/hcservices/ accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities, the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as