BAIL SLIP The Appellant / Accused was directed to be enlarged on bail as per order dated 06/2/2007 and made in Crl.MP 1/2007 in Crl.A 967/06 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17-06-2008 THE HON'BLE MR.JUSTICE P.D.DINAKARAN AND THE HON'BLE MR.JUSTICE K.N.BASHA CRIMINAL APPEAL NO: 967 OF 2006 Mahalingam .. Appellant Vs State rep.by Inspector of Police, Kannamangalam Police Station, Thiruvannamalai District. (Crime No.489 of 2003) .. Respondent Appeal filed under Section 374 Cr.P.C against the judgment dated 25.9.2006 made in S.C.No.3 of 2004 on the file of the learned District and Sessions Judge, Thiruvannamalai. For appellant : Mr.G.Sankaran For respondent : Mr.N.R.Elango, Addl.Public Prosecutor JUDGMENT (Judgement of the Court was delivered by P.D.DINAKARAN,J.,) This appeal has been preferred against the judgement made in S.C.No. 3 of 2004 on the file of the learned District and Sessions Judge, Thiruvannamalai. By the impugned judgement, the appellant was found guilty, convicted and sentenced under Section 302 IPC to undergo imprisonment for life and also to pay a fine of Rs.5000/-, in default to undergo rigorous imprisonment for one year. The said conviction and sentence is under challenge in the present appeal. https://hcservices.ecourts.gov.in/hcservices/ 2. The prosecution case, as per the charge is that the deceased had illicit intimacy with the wife of the accused and on 13.9.2003 at 10 a.m., at the cornfield, situate on the southern side of the Veera Kovil, both of them were seen together by the accused and when the accused tried to catch hold of them, both of them fled away and her search by the accused ended in vain and thereafter the wife of the accused did not return to the matrimonial home and therefore, the accused had vengeance to wreak against the deceased, four days later, on 18.9.2003 at 3.00 a.m., when the deceased, who is a milk vendor came with the milk can on the Padavedu-Kamandalapuram mud road, near the land belonging to Elumalai, the accused with an intention to kill him, took out Koduval and inflicted incised wounds on the front sides of upper part of neck, just below the chin; on his later side of mid left leg; later side of upper left leg; below right knee medial side; back of mid of right forearm and on the back of lower of left forearm and thereby caused the instantaneous death and thus, committed the offence punishable under Section 302 IPC. 3. The genesis of the prosecution version, as unfolded by the prosecution witnesses during the course of trial, are as follows:- (a) P.W.1 is the Village Administrative Officer. According to him, on 18.9.2003, at about 6.00 pm., when he was present in his office, the accused Mahalingam came and confessed that he has committed the murder of the deceased Mahalingam. His confession statement was reduced into writing which is Ex.P.1 complaint. The accused also produced the Koduval, M.O.1, which he has used for the commission of the crime and also stated that he has washed the same with pipe water after committing the offence. After following the procedures and after making an endorsement found in Ex.P.2, the VAO has produced the accused and M.O.1 Koduval before the Sub Inspector of Police, Santhavasal Police Station where M.Os.1 to 4, the bloodstained dress materials worn by the accused were recovered under Ex.P.4. (b) P.W.2 and P.W.3 who are eye witnesses, have turned hostile. P.W.4 who is the brother of the deceased has stated that for the past three years from the date of occurrence both the deceased and the wife of the accused had illicit relationship and on the date of occurrence, i.e., 18.9.2003 at about 6.00 pm., when he was waiting in the bus stop to board the bus along with his another brother Jagannathan, they have seen the accused washing the bloodstained Koduval in the street pipe water. At that time, the people assembled there were talking about the killing of the deceased by the accused and they all went to see the body of the deceased. P.W.4 along with his brother also went to the mud-street near the cornfield where he saw the dead body of his brother Mahalingam with injuries on the neck, forearm and leg. https://hcservices.ecourts.gov.in/hcservices/ (c) P.W.5 is an independent witness who has stated that between 3.00 a.m., and 4.00 a.m., the deceased used to come and get the milk from him and the deceased has purhased milk as usual on the date of occurrence. At about 7.00 a.m., he heard the news about the death of the deceased and along with the public, he also went and saw his dead body. (d) P.W.6 is the mahazar witness for the observation mahazar Ex.P.5 and for the seizure of M.Os.2,4,5,6,7 to 13 under Ex.P.6. P.W.7, who is mahazar witness for M.Os.2 to 4 turned hostile. P.W.8, another mahazar witness for seizure of M.Os.2 to 4 under Ex.P.8 supported the prosecution case. (e) P.W.11 is the Sub Inspector of Police. According to him, on 18.9.2003 at about 6.45 a.m., the VAO produced the accused with the complaint Ex.P.1 and based on the complaint, he has registered a case in Crime No:489 of 2003 under Section 302 IPC and prepared FIR which is Ex.P.11 and sent copies to the Judicial Magistrate, Polur and to the concerned authorities. He has recovered the Koduval, M.O.1 from the accused under a cover of mahazar Ex.P.3 and also the dresses, M.Os.2 to 4 under Ex.P.8. (f) P.W.12 is the Investigating Officer. He has deposed that on receipt of the FIR copy at 8.00 a.m., on 18.9.2003, visited the scene of occurrence by 8.30 a.m., and prepared the observation mahazar Ex.P.5 and drawn a rough sketch Ex.P.12 in the presence of witnesses. Recovered M.Os.5 to 13 being sample earth, bloodstained earth and milk cans, measurement cups, torch light, lactometer, bicycle under Ex.P.6 in the presence of Panchayatdars. Thereafter he conducted an inquest on the body of the deceased, which report is Ex.P.13. Through P.W.10, Head Constable, sent the body of the deceased with a requisition to the Government Hospital, Polur for conducting postmortem. (g) P.W.9, Doctor who performed the autopsy on the dead body, found the following external injuries:- Antemortem External Injuries: 1. A horizontal incised wound with clean edges over the front of sides of upper part of neck just below chin. Size: 16cm x 6 cm x 6cm exposing cut ends f larynx, oesophagus, muscles, blood vessels, nerves and cervical vertebra. Red. 2. A horizontal incised wound with clean edges, red, lateral side of mid 1/3 rd of left leg size 8 cm x 5 cm x 5 cm exposing muscles, blood vessels and both bones cut ends. 3. A horizontal incised wound with clean eges, lateral side of upper 1/3rd of left leg, red, 5 cm x 3 cm x 3 cm. https://hcservices.ecourts.gov.in/hcservices/ 4. A horizontal incised wound with clean edges, below right knee medial side 4 cm x 2 cm x 2 cm. 5. An oblique incised wound with clean edges, red, back of mid 1/3rd of right forearm, size 6 cm x 3 cm x 3 cm. 6. An oblique incised wound with clean edges, red, back of lower 1/3rd of left forearm, size 4 cm x 2 cm x 2 cm. (h) The Doctor also opined that the deceased would appear to have died of shock and haemorrhage due to injuries sustained 11 to 12 hours prior to commencement of autopsy. (i) Continuing his investigation, P.W.12, examined and obtained statements from the witnesses. Also requested the Judicial Magistrate, Polur to send the material objects for chemical analysis. The Chemical Analysis Report and Serological Report are Exs.P.14 and P.15. He obtained statement from the Doctor who conducted the post- mortem on 20.11.2003 as well as from the Chemical Analyst. After completing his investigation, laid the charge sheet on 9.12.2003 for the offence punishable under Section 302 IPC. 4. After filing of the final report, the case was committed to the Court of Sessions, which was taken up in Sessions Case No:3 of 2004 by the learned Principal District and Sessions Judge, Thiruvannamalai and charge was framed by the learned Sessions Judge against the accused, for which, the accused denied his complicity with the crime and therefore the trial of the case was taken up. In order to substantiate its case before the Sessions court, the prosecution relied on the ocular versions of P.Ws.1 to 12 and marked Exs.P.1 to P.15 and also produced M.Os.1 to 16. 5. On conclusion of the examination of the prosecution witnesses as referred to above, when the accused was questioned under Section 313(1)(b) of the Criminal Procedure Code with regard to the incriminating materials appearing against him in the evidence of the prosecution witnesses, he denied each and every incriminating material as false and pleaded not guilty. However, no witness was examined and no document was marked on the side of the defence. 6. The Learned Sessions Judge after perusal of the materials on record and after hearing the arguments made by both the parties, convicted and sentenced the appellant as mentioned above and aggrieved against the conviction and sentence, the present appeal is preferred. https://hcservices.ecourts.gov.in/hcservices/ 7. Learned counsel for the appellant contended that P.Ws 2 and 3, who are direct eye witnesses did not support the case of the prosecution and turned hostile, the case solely rests on the evidence of P.W.1, Village Administrative Officer, before whom, it is alleged that the accused gave extra judicial confession, and that of the evidence of P.W.5, Milk Vendor from whom the deceased had purchased milk just few hours before his death. It is submitted that considering the circumstantial evidence, the offence under Section 302 is not proved, and at the most, it has to be brought under the First Exception of Section 300 and the accused can be convicted for sustained provocation in view of the inadmissible portion of the confession made by the accused. 8. On the other hand, the learned Additional Public Prosecutor, arguing to sustain the conviction and sentence, submitted that no case has been made out for sustained provocation as there was a huge time gap between the incident in which the accused saw the deceased and his wife together which infuriated him to wreak vengeance, and the time of occurrence, which had taken place 4 days thereafter, and therefore there is enough time for the accused to cool down. According to the learned Additional Public Prosecutor, this is a deliberate murder with premeditation as the accused had intention to kill the deceased and he had taken with him the Koduval, waiting and was hiding behind a tree in the early morning on the date of occurrence and when the deceased came near him in the road, he intercepted and inflicted the injuries. The learned Additional Public Prosecutor has placed reliance on the oral evidence of the prosecution witnesses and also the medical evidence. 9. We have given our careful and anxious consideration to the rival contentions put forward by either side and also perused the entire materials available on record and considered each and every circumstance put forward by the prosecution. 10. A perusal of Ex.P.9, Post-mortem Certificate would show that the deceased had four incised wounds and two oblique sized incised wounds in his front sides of upper part of neck, just below the chin, on his later side of mid left leg, later side of upper left leg, below right knee medial side, back of mid of right forearm and on the back of lower of left forearm. P.W.9, the Doctor who conducted the post-mortem also opined that the deceased would have died due to shock and hammorrhage because of the multiple injuries caused by M.O.1 Koduval. Thus, the external injuries found on the body of the deceased would lead to the definite conclusion that it is a homicidal death. 11. Now, the point that arises for consideration in this appeal is whether the prosecution has brought home the guilt of the accused beyond all reasonable doubts? https://hcservices.ecourts.gov.in/hcservices/ 12. It is true that the two eye witnesses viz., P.Ws.2 and 3 have turned hostile and we are only left with the circumstantial evidence. In such a situation, lack of positive evidence by the prosecution would not result in throwing out the entire prosecution case, if the other circumstantial evidence clearly point out the guilt of the accused thereby establishing the link between the chain of circumstances. Further, in such cases, the court should not insist upon the evidence regarding the exact manner in which the death was caused. 13. The law on the circumstantial evidence is now well settled by the Apex Court in a number of judgments. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, the Apex Court has held that "while dealing with circumstantial evidence, 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". 14. In Padala Veera Reddy v. State of Andhra Pradesh (1989 Supp (2) SCC 706), the Apex Court has laid down the following tests for consideration in a case of circumstantial evidence: "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (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." 15. Thus, it is well settled by the decisions of the Hon'ble Supreme Court that the circumstances from which the conclusion of guilt has to be drawn should be fully proved and circumstances must be conclusive in nature to connect the accused with the crime. 16. In the light of the above well settled principle of law regarding the circumstantial evidence, let us now consider the circumstances put forward by the prosecution against the accused. https://hcservices.ecourts.gov.in/hcservices/ 17. In the case on hand, the prosecution placed reliance on the following circumstances: (a) The deceased is the paramour of the wife of the accused for several years. Four days prior to the occurrence, the deceased and the wife of the accused were seen together by the accused and on seeing the accused, both of them ran away, and when he tried to catch hold of them both of them escaped from the clutches of the accused and all the efforts in search of his wife ended in vain. His wife also did not return to his house till the date of occurrence. Therefore, the accused had developed animosity (to wreak vengeance) against the deceased who had illicit intimacy with his wife for the past three years which is also admitted by P.W.4, brother of the deceased; (b) the last seen theory spoken to by P.W.5 Milk Vendor from whom the deceased used to purchase milk at the early hours; and (c) extra judicial confession given by the accused himself to the VAO, an independent witness and subsequent recovery of weapon as well as dress materials. 18. According to P.W.2, an independent eye witness, the illicit relationship between the deceased and the wife of the accused existed for about 10 years prior to the date of occurrence, and 8 years before, the accused had caught both of them red-handed and warned and inspite of that, they continued the illicit intimacy and on the date of occurrence the accused told before P.W.2 that he had killed the deceased and while washing the Koduval P.W.4 and his brother Jagannathan had seen him. Thereafter, P.W.2 advised the accused to surrender before the VAO. However, P.W.2 has turned hostile. Like wise, P.W.3 an independent eye witness to the commission of the crime who turned hostile, speaks about the motive and intention. Even if we eschew the evidence of P.Ws.2 and 3 who have turned hostile, we can rely on the version of P.W.4, who is the brother of the deceased himself, who had admitted the illicit relationship between the deceased and the wife of the accused existed for three years. Therefore, it is well established that there is a strong motive and intention for the accused to commit the crime. 19. As regards the last seen theory, it is the evidence of P.W.5, the Milk Vendor that on 18.9.2003 between 3.00 a.m., and 4.00 a.m., i.e., few hours prior to the death, the deceased came to him https://hcservices.ecourts.gov.in/hcservices/ and purchased milk and went back in his usual route. Later, at 7.00 a.m., he came to know about the death of the deceased, killed by the accused and he also went and saw the dead body at the scene of occurrence with multiple injuries. So also, P.W.4, who is the brother of the deceased, deposed that when he was waiting for the bus in the bus-stop along with his another brother Jagannathan, they saw the accused washing the bloodstained Koduval M.O.1 in the street pipe water. Thereafter along with other public, they went to the place of occurrence and saw the dead body of their brother with multiple injuries. 20. As regards the extra judicial confession, it is the evidence of P.W.1, Village Administrative Officer, that on 18.9.2003, at about 6.00 pm., when he was present in his office, along with the Village Assistant, the accused Mahalingam came and confessed that he has committed the murder of the deceased Mahalingam. His confession statement was reduced into writing which is Ex.P.1 complaint. The accused also produced the Koduval, M.O.1, which he has used for the commission of the crime and also stated that he has washed the same after committing the offence. After making an endorsement under Ex.P.2, the VAO has produced the accused and M.O.1 Koduval before the Sub Inspector of Police, Santhavasal Police Station where M.Os.2 to 4, being the bloodstained dress material worn by the accused were recovered under Ex.P.4. P.W.8, who stood as a mahazar witness for the recovery of M.Os. 2 to 4 for the same corroborates the evidence of P.W.1. So also, P.W.6, another mahazar witness supports the prosecution case for the recovery of M.Os.5 to 16 under Ex.P.6. The Serological Report also is to the effect that M.Os.2,3,4,5,7,8 and 9 contain human blood of A group and there is no explanation offered by the accused for the presence of blood on his cloths. It is not established that the independent witnesses have any grudge to falsely implicate the accused. It is well settled law that a confession given to the Village Administrative Officer, who is not a Police Officer, is admissible in evidence. Therefore, the evidence of P.W.1, before whom the extra judicial confession has been given, and P.Ws.6 and 8 in whose presence the material objects were recovered and the medical evidence cannot be discarded. 21. Failure to give any explanation by the accused to the incriminating circumstances put against him is also fatal to his defence. In Trimukh Maroti Kirkan Vs. State of Maharashtra, reported in (2006) 10 SCC 681, it was observed:- "21. In a case based on circumstantial evidence where no eyewitness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation https://hcservices.ecourts.gov.in/hcservices/ or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. 22. Admittedly, in the case on hand, when the accused was questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances appearing against him in the evidence of the prosecution witnesses, he has baldly denied them as falsehood and pleaded not guilty. Since no explanation was offered by the accused, it is a strong circumstance against the accused by drawing adverse inference against him and in favour of the prosecution case. 23. Therefore, we are of the firm opinion that the prosecution has established beyond any reasonable doubt that the accused had developed enmity with the deceased as he had illicit relationship with his wife which is admitted by P.W.4, who is none other than the brother of the deceased, four days prior to the date of occurrence the accused saw both his wife and the deceased together and on seeing him both of them ran away and his wife did not return to the house till the date of occurrence, enraged by that, the accused was nurturing sustained provocation and on the date of occurrence when the deceased was returning from P.W.5's house after purchasing milk, the accused with M.O.1 Koduval, inflicted several incised wounds, P.W.5 has last seen the deceased i.e., 3 to 5 hours prior to the time of occurrence, and at 7.00 a.m., P.Ws 4 and 5 have seen the deceased with injuries, P.W.4 seen the accused washing the bloodstained Koduval in the pipe water and before P.W.1 VAO, the accused himself gave extra judicial confession, based on which, M.Os.1 to 4 were recovered. P.Ws.6 and 8 are mahazar witnesses for the recovery of M.Os.2 to 16. A perusal of the postmortem report would show that there were 6 external injuries caused by the accused with M.O.1 Koduval. According to the doctor, the death was due to shock and hemorrhage and consequential severe bleeding. Thus, the prosecution has proved the motive, as well as the intention on the part of the accused. Therefore, we are of the opinion that the prosecution has proved each and every link in a complete manner so as to complete the chain of circumstance. Thus, all the circumstances narrated above, put together, would lead to the conclusion that it is only the accused who committed the offence without giving room to any other hypothesis. 24. The remaining issue to be decided is whether the accused is liable to be convicted under Section 302 of the Indian Penal Code. According to the learned counsel for the appellant the offence committed would fall under First Exception to Section 300 IPC. https://hcservices.ecourts.gov.in/hcservices/ 25. In a decision in K.M.NANAVATI VS. STATE OF MAHARASHTRA reported in A.I.R. 1962 S.C. 605, the Hon'ble Supreme Court of India has laid down the following principles regarding the Exception 1 to Section 300 I.P.C. : "1. The test of grave sudden provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in situation in which the accused was placed would be provoked as to lose his self-control. 2. In India, words and gestures may also, under certain circumstances, cause gave and sudden provocation to an accused so as to bring his act within the first Exception of Section 300 I.P.C. 3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. 4. The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion has cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation." 26. From the above decision, it is very clear that Exception 1 to Section 300 IPC could be invoked considering the mental background created by the previous act of the victim, coupled with the subsequent event. In the instant case, as already pointed out, there were overwhelming materials to show that the deceased was having illicit intimacy with the wife of the