IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.06.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.1003 of 2007 Shanthi .. Appellant/Accused No.2 Vs. State rep. by The Inspector of Police, Maduravoil Police Station, Cr.No.1883 of 2006 .. Respondent/Complainant * * * Prayer : Criminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure against the Judgment of conviction passed by the learned Additional District and Sessions Judge, Fast Track Court No.IV, Poonamallee, Thiruvallur, in S.C.No.36 of 2007 dated 31.10.2007. * * * For Appellant : Mr.N.Duraisami for M/s. S.Sinthana Devi For Respondent : Mr.N.R.Elango, Additional Public Prosecutor J U D G M E N T (Judgment of the court was delivered by K.N.BASHA, J.) The second accused, Shanthi, has preferred this appeal questioning the legality of the judgment passed by the learned Additional District and Sessions Judge, Fast Track Court No.IV, Poonamallee, Thiruvallur, in S.C.No.36 of 2007 dated 31.10.2007 convicting the appellant for the offence under Sections 302 r/w 34 IPC and sentencing her to undergo life imprisonment and convicting her under Section 201 IPC and sentencing her to undergo 7 years rigorous imprisonment. Both the sentences were ordered to run concurrently. 2. There are two accused in this case, namely, A-1 and A-2. After framing the charges, A-1 said to have committed suicide and therefore, the charges stand abated in respect of A-1. https://hcservices.ecourts.gov.in/hcservices/ 3. The appellant, A-2, is none else than the wife of the deceased, Elumalai. A-1 is said to be the Paramour of A-2 as A-2 was having illicit intimacy with A-1. The charge against the accused/appellant is that she along with A-1, due to illicit intimacy between them, planned to murder the deceased, Elumalai, as he objected such intimacy and accordingly, between 13.10.2006 and 14.10.2006 night, pushed down the deceased from his cot and pressed the face of the deceased with pillow and beat the deceased with hands and legs on his neck and chest and also dashed the head of the deceased against the wall which resulted in the death of the deceased and thereby said to have committed the offence under Sections 302 r/w 34 IPC and thereafter, to screen the offence threw the body of the deceased from the staircase to show that the deceased died due to accidental fall and thereby said to have committed the offence under Section 201 IPC. 4. The prosecution, in order to substantiate its case, examined P.Ws.1 to 14, filed Exs.P.1 to P.22 besides marking M.Os.1 to 10. 5. The prosecution version, in a nutshell, is as follows : (i) P.W.1 is the brother of the deceased ; P.W.6 is the father of the deceased. P.Ws.7 and 8 are the daughter and son of the deceased and A-2, the appellant herein. (ii) P.W.1, P.W.2 and P.W.3 have spoken about the alleged motive put forward by the prosecution. P.W.2 stated that the deceased informed him that his wife A-2 was having intimacy with A-1, who is an auto-driver and as such he was not having peace of mind. P.W.3 stated that few days before the occurrence, he was informed by the deceased that his wife, A-2, was having intimacy with one auto-driver and as such he was not having peace of mind. It is also stated by him that the deceased told him that there was a threat to his life. P.W.4, yet another witness, stated that the deceased informed him that his wife, A-2, was having illicit intimacy with one auto-driver and as such he was not having peace of mind and there were frequent quarrels in the house between himself and A-2, his wife. P.W.4 also stated that the deceased told him that there was a threat to his life. P.Ws.7 and 8, the daughter and son of the deceased and A-2, also stated that there were frequent quarrels between the deceased and A-2 as A-2 was having illicit intimacy with A-1. Therefore, there were strained feelings between A-1, A-2 and the deceased. (iii) On the fateful date of occurrence, i.e., on 14.10.2006 at 5.00 a.m., P.W.3 received a phone call from A-2 stating that the deceased, her husband, died as he fell down from the staircase. P.W.3, in turn, informed his friend, P.W.4, and requested him to convey the message to P.W.1, brother of the deceased. Thereafter, P.W.4 went to the house of the deceased and found the deceased lying dead on an Ammikkal. A-2 was weeping at that time. While P.W.4 enquired A-2 https://hcservices.ecourts.gov.in/hcservices/ whether she informed her relatives, she requested him to inform P.W.1, brother of the deceased. Thereafter, P.W.4 went and brought P.W.1/brother of the deceased. P.W.1 found a cut injury on the head of the deceased. He also found a contusion on his cheek and also nail marks and scratches on the face and neck of the deceased. There was also pool of blood near the body. P.W.1 got suspicion about the death of the deceased as already the deceased informed him on 04.10.2006 that his wife, A-2, was having illicit intimacy that A-1 and as a result, there were quarrels between them and he gave a complaint to Maduravayil Police Station and A-2 also insisted P.W.1 to perform the last rites and the cremation immediately. (iv) Thereafter, P.W.1 went to Maduravayil Police Station on 14.10.2006 at 8.30 a.m. and gave a report, Ex.P.1. P.W.14, the Inspector of Police, registered a case in Crime No.1883 of 2006 under Section 174 Cr.P.C. for suspicious death. Ex.P.13 is the First Information Report. (v) P.W.14, took up investigation and went to the scene of occurrence and prepared the Observation Mahazar, Ex.P.3 and rough sketch, Ex.P.14. He held inquest on the dead body of the deceased. Ex.P.15 is the inquest report. He arrested A-2 on 14.10.2006 at 5.30 p.m. and arrested A-1 on the same day at 8.00 p.m. In pursuance of the admissible portion of the confession of the accused, P.W.14, he altered the offence to one under Section 302 IPC. Ex.P.16 is the altered First Information Report. He examined the witnesses. He also recovered the bloodstained white granite piece, M.O.3, sample white granite piece, M.O.4, bloodstained cement stone, M.O.5, sample cement piece, M.O.6, under Form 95 under Exs.P.17 and P.18. He sent the body for post- mortem with requisition, Ex.P.19. (vi) The Doctor, P.W.12, conducted post-mortem on the dead body of the deceased. He found the following injuries on the deceased : (1)Irregular brown colour abrasions seen ; over – right frontal region 2 X 1 cm – Mid forehead 2 X 2 cms – Back of left shoulder 3 X 1 cm – Punctured abrasions over left side of neck 1 X 1 cm, 1 X 0.5 cm, 1 X 1.5 cm (2)Lacerated wound seen over middle of chin 3 X 1 X 1 cm (3)Reddish subscalp contusion seen over bifrontal region (Hence black eye), left parietal and left occipital region. (4)Reddish contusion seen over both sides of neck (Parapharyngeal) and retrosternal region. (5)Fracture of 2-3 segments of sternums and 7-9 ribs at midaxillary line on right side https://hcservices.ecourts.gov.in/hcservices/ (6)Reddish subdural and subarachnoid haemorrhage seen over both fronto temporal lobes on both sides. All the above injuries are ante-mortem in nature. The Doctor, P.W.12, opined that the deceased would appear to have died of traumatic brain injuries. Ex.P.5 is the Post-Mortem Certificate. (vii) P.W.14, in continuation of his investigation, sent the material objects for chemical examination through the Court. He also examined the witnesses and recorded their statements, earlier during inquest, and after the inquest and received the Post-Mortem Certificate, Ex.P.5, Viscera report, Ex.P.6, Serologist report, Ex.P.21 and Biology report, Ex.P.22. After completing the investigation, P.W.14 filed the charge sheet against A-1 and A-2 for the offence under Section 302 IPC and under Section 201 IPC on 15.12.2006. 6. When the accused (A-2) was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against her through the evidence adduced by the prosecution, A-2, the appellant, has denied each and every circumstance as contrary to the facts and stated that she has been falsely implicated in the case and she has not chosen to examine any witness or marked any document on her side. 7. Mr.N.Doraisamy, learned counsel appearing for the appellant vehemently contended that the prosecution has not proved its case by adducing clear and cogent evidence. It is submitted that there is no eyewitnesses to the occurrence and the entire prosecution case rests on the circumstantial evidence. The learned counsel further submitted that the prosecution has not put forward any clinching circumstances to implicate the appellant herein. It is contended that A-2 was present all along at the house and she was not absconding and her conduct shows her innocence. It is further submitted that the motive and last seen theory itself are not sufficient, in view of missing links in the chain of circumstances, without any further materials to connect A-2 for causing the death of the deceased. It is contended that the prosecution version is also not corroborated by the medical evidence. It is contended that the Doctor, P.W.12, admitted in his cross- examination that the deceased could have sustained injury on his head due to a fall from the staircase. Therefore, it is contended that the prosecution has not proved its case. 8. Per contra, Mr.N.R.Elango, leaned Additional Public Prosecutor, contended that the prosecution adduced clinching circumstances implicating the accused. It is submitted that as far as motive is concerned, there is clear and consistent version through the evidence of P.Ws.2 to 4, 7 and 8. It is submitted that P.Ws.7 and 8 are none else than the daughter and son of the deceased and the appellant, A-2. It is further pointed out that P.Ws.7 and 8 went to the extent of stating that their mother, the accused, assaulted the deceased several times. It is also pointed out that on an earlier occasion the deceased https://hcservices.ecourts.gov.in/hcservices/ said to have informed P.Ws.3 and 4 about the illicit intimacy of A-2 with A-1 and further expressed that there was a threat to his life at the instance of A-1 and A-2. It is contended that the occurrence took place inside the house of the accused (A-2) and deceased and the appellant (A-2) has not given any explanation for the death of the deceased and on the other hand, A-2 has given a false explanation to the effect that the deceased died due to the accidental fall from the staircase. It is pointed that there is absolutely no material available on record to probabilise such explanation of A-2. The learned Additional Public Prosecutor further contended that the injuries found as per the Post-Mortem Certificate, Ex.P.5, and the opinion of the Doctor, P.W.12, rule out the possibility of the deceased sustaining injury due to the fall from the staircase. The learned Additional Public Prosecutor further contended that A-2 has not informed P.W.1, who is none else than the brother of the deceased, and on the other hand, she has informed P.W.3 over the phone. Therefore, it is submitted that the conduct of A-2 also clearly shows that she is responsible for causing the death of the deceased with A-1 and as such it is submitted that the prosecution has proved its case in all aspects against the accused. 9. We have given our careful and anxious consideration to the rival contentions put forward by either side and thoroughly scrutinized the materials available on record and also perused the impugned Judgment of conviction. 10. The entire prosecution case rests on the circumstantial evidence. The Hon’ble Apex Court has held in BODH RAJ ALIAS BODHA AND OTHERS v. STATE OF JAMMU AND KASHMIR reported in AIR 2002 (SC) 3164 as follows: "Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The conditions precedent before conviction could be based on circumstantial evidence must be fully established. They are: (a) the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established ; (b) 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 ; (c) the circumstances should be of a conclusive nature and tendency ; (d) they should exclude every possible hypothesis except the one to be proved ; and (e) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion https://hcservices.ecourts.gov.in/hcservices/ consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused". 11. In yet another decision in Balwinder Singh Vs. State of Punjab (AIR 1996 SC 607) the Hon'ble Apex Court has held as follows : "In a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstance must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof." 12. Let us now scrutinize the circumstances available on record in the light of the principle of law laid down by the Hon’ble Apex Court in the decisions cited supra. 13. The first and foremost circumstance available on record is the motive alleged against A-1 and A-2. In a case of circumstantial evidence, the motive aspect assumes importance. There are overwhelming materials available on record to establish the motive put forward by the prosecution to the effect that A-2 was having illicit intimacy with A-1 through the evidence of P.Ws.1 to 4, 6, 7 and 8. All these witnesses have categorically stated about the illicit intimacy of A-2 with A-1 and there is absolutely no inconsistency in their evidence. It is pertinent to be noted that P.Ws.7 and 8, who are the daughter and son of the deceased and A-2, have also implicated A-2 for the alleged motive put forward by the prosecution. Though it is seen from the evidence of P.Ws.7 and 8 that they have not stated to the police during their examination about A-2 assaulting the deceased, the fact remains as far as the continuous alleged intimacy between A-1 and A-2 is concerned, their evidence is quite clear and natural and in conformity with the other evidence available on record through P.Ws.1 to 4 and 6. 14. Added to this clear and consistent version of P.Ws.1 to 4 and 6 to 8, it is relevant to note that both P.Ws.3 and 4, who are the independent witnesses, have categorically stated that the deceased informed them about the illicit intimacy of A-2 with A-1 and on that ground, he was not having peace of mind and there were frequent quarrels between A-2 and himself and also expressed apprehension of threat to his life at the instance of A-1 and A-2. Therefore, we have no hesitation to hold that the prosecution has proved the motive https://hcservices.ecourts.gov.in/hcservices/ alleged against A-2. 15. The next clinching and incriminating circumstance is to the effect that the occurrence took place inside the house of the deceased and A-2. It is pertinent to be noted that the occurrence took place during night time between 13.10.2006 and 14.10.2006. P.W.1, brother of the deceased, P.Ws.3 and 4, who are all the independent witnesses soon after receiving the message about the death of the deceased, reached the house of the deceased and A-2 and they found A-2 was present at the house. It is further pertinent to be noted that P.W.2 has seen A-1 was also coming out of the house of the deceased and A-2 on 14.10.2006 at 5.00 a.m. This particular categorical statement of P.W.2 is not at all challenged by the defence during the course of cross-examination. The defence elicited an answer in the cross-examination only to the effect that after seeing A-1 coming out of the house of the deceased, P.W.2 has not gone inside the house of the deceased to find out whether the deceased was available inside the house or not. Therefore, the undisputed fact remains that A-1 was coming out of the house of the deceased on 14.10.2006 early morning at 5.00 a.m. and it is not at all challenged by the defence. Therefore, the evidence of P.W.2 coupled with the evidence of P.Ws.1, 3 and 4 makes it crystal clear that the occurrence took place inside the house of the deceased and A-2 was very much present at that time and added to that A-1 was seen coming out of the house of the deceased at 5.00 a.m. on 14.10.2006. In view of such clinching material, we are of the considered view that the prosecution has established that the occurrence took place inside the house of the deceased and at that time A-1 and A-2 were very much present at the scene. 16. Yet another clinching and incriminating circumstance is to the effect that A-2 has not given any reasonable and probable explanation for the death of the deceased and on the other hand, she has informed P.Ws.3 and 4 that the deceased died due to the accidental fall from the staircase. It is relevant to note that she has not given any reason or explanation for the death of the deceased, when P.W.1, brother of the deceased, reached the house of the deceased after the occurrence. The explanation given by A-2 is not probabilised by the medical evidence. The Doctor, P.W.12, has categorically stated that the injuries sustained by the deceased are possible when a person is attacked with blunt weapon and similarly, if anyone pushes the other from a staircase the injuries are possible. The Doctor, P.W.12, has not at all stated in his evidence either in the chief or in the cross-examination that the injuries found on the deceased could have been caused due to the accidental fall from the staircase. It is the opinion of the Doctor that the deceased appeared to have died of traumatic brain injuries. A perusal of the injuries as per the Post-Mortem Certificate, Ex.P.5, clearly shows that the deceased could not have sustained injuries due to the accidental fall from the staircase. It is seen that apart from a lacerated wound on the middle of chin, a contusion on the left parietal and left occipital region, a reddish contusion also seen over both sides of neck, irregular brown colour abrasions seen over right https://hcservices.ecourts.gov.in/hcservices/ frontal region and punctured abrasions also found on the left side of neck. It is pertinent to be noted that there is no occasion for the deceased to fall down from the staircase during night time. Therefore, we are of the considered view that A-2 has not only not given any probable explanation but also given false explanation. 17. The Hon’ble Apex Court has held in Anthony D'Souza V. State of Karnataka reported in AIR 2003 SC 258 as follows : "16. In Swapan Patra V. State of West Bengal, (1999) 9 SCC 242, this Court said that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found not to be true then the same offers an additional link in the chain of circumstances to complete the chain. The same principle has been followed and reiterated in State of Maharashtra V. Suresh, (2000) 1 SCC 471, where it has been said that a false answer offered by the accused when his attention was drawn to a circumstance, renders that circumstance capable of inculpating him. This Court further pointed out that in such a situation false answer can also be counted as providing a missing link for completing the chain. The aforesaid principle has been again followed and reiterated in Kuldeep Singh and others V. State of Rajasthan (2000 (5) JT (SC) 161)." 18. The above well settled principle of law laid down by the Hon’ble Apex Court is squarely applicable to the facts of the instant case as in this case also, as stated above, A-2 has given a false explanation for the death of the deceased. Therefore, we have no hesitation to hold that such false explanation can also be counted as providing a missing link for completing the chain of circumstances. 19. Therefore, we are of the considered view that the chain of circumstances as recited above coupled with the law laid down by the Hon’ble Apex Court unerringly lead to one conclusion and that is the guilt of the accused. 20. For the aforesaid reasons, we are constrained to dismiss the appeal as devoid of merits and accordingly, the appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gg https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional District and Sessions Judge, Fast Track Court No.IV, Poonamallee, Thiruvallur District. 2. -do- thro" The Principal Sessions Judge, Thiruvallur District. 3. The Collector, Thiruvallur District. 4. The Director General of Police, Chennai. 5. The Superintendent, Central Prison - for Women III, Puzhal, Chennai. 6. The Inspector of Police, Maduravoil Police Station, Chennai. 7. The Public Prosecutor, Madras High Court, Madras. +1cc to M/s.S.Sinthana Devi,Advocate Sr 31519 SSN (CO) km/11.7. Crl.A.No.1003 of 2007 https://hcservices.ecourts.gov.in/hcservices/