Case: Joseph Vs. State of Kerala

the deceased when she left the Convent on the evening of the fateful day with him. As noticed earlier, the deceased was last seen alive only with the appellant and thereafter she neither returned to the Convent nor her home, alive and not found anywhere else also by any one, outside the company of the appellant. 13. Taking advantage of the discrepancies pointed out by the Sessions Judge, the learned counsel for the appellant also tried to contend that the evidence of PWs-11 to 14 is not trustworthy. It is not that every discrepancy or contradiction that matters much in the matter of assessing the reliability and credibility of a witness or the truthfulness of his version. Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straightaway condemned and their evidence discarded in its entirety. On going through the entire evidence of PWs-11 to 14, we are unable to come to the conclusion that they are not speaking the truth or that they cannot inspire confidence in the mind of any reasonable person or authority to adjudge disputed questions of fact, so as to eschew entirely their evidence from consideration, whatsoever. 14. The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313, Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood self-condemned. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else they being personally and exclusively within his knowledge. Of late, Courts have, from the falsity of the defence plea and false answers given to Court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra v. Suresh, 2000(1) SCC 471). That missing link to connect the appellant-accused, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. For all the reasons stated supra, we have no hesitation to agree with the findings of the Division Bench of the High Court holding the appellant guilty of offences under Section 302 for committing the murder of Gracy and for robbing her of her jewellery worn by her - MOs 1 to 3, under Section 392. The deceased meekly went with the accused from the Convent on account of the misrepresentation made that her mother was seriously ill and hospitalised apparently reposing faith and confidence in him in view of his close relationship - being the husband of her own sister, but the appellant seems to have not only betrayed the confidence reposed in him but also took advantage of the loneliness of the hapless women. The quantum of punishment imposed is commensurate with the gravity of the charges held proved and calls for no interference in our hands, despite the fact that we are not agreeing with the High Court in respect of the findings relating to the charge under Section 376. 15. The charge under Section 376, IPC, is mainly fastened upon the appellant on the `last seen together theory. The factum of rape of the deceased is sought to be proved from Ex. P-20, a report on examination of vaginal smear collected and said to confirm the presence of semen and spermatozoa, indicating that she should (might ?) have had sexual intercourse before her death. Ex. P-21, chemical report, also showed that semen was detected in one of the under skirts found on the body of the deceased. Ex. P-8, certificate issued by PW-15, the doctor, also showed that the accused-appellant was potent. But in the Report, Ex. P-21, it was specifically stated that the dhoti of the appellant, subjected to chemical examination, contained no stains of blood or semen. If there had been any forcible sexual intercourse, the victim must have made some strong resistance being a grownup lady and in the process, some injuries would have been found on the vaginaprivate parts of the body or some other parts indicative of any such use of force and it would be too much to assume that there would have been no injuries whatsoever on the body, on this account. Though injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse, this aspect of the matter cannot be completely lost sight of. The deceased was stated to be of about 26 years age, when she died and she is the sister of the wife of the appellant. It is not as though they were shown earlier to be on inimical terms. Anything possible might have happened and the facts found proved do not irresistibly lead to the only conclusion of the guilt of the appellant in respect of an offence under Section 376, IPC. Consequently, we are prepared to give the benefit of doubt to the appellant and acquit him of the offence under Section 376, IPC, and the conviction recorded and sentence imposed by the High Court upon the appellant on this account is set aside.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. So far as the case on hand is concerned, there is direct evidence of the Sisters of the Convent where the deceased was working,5 and 6 to prove beyond reasonable doubt that it was the appellant who had taken the appellant from the Convent at about 5.30 p.m., on 16.9.94 on the pretext that her mother was seriously ill and hospitalised. Even the trial Court which returned a verdict of acquittal was very much convinced of this fact against the appellant and satisfied with the evidence of5 to 8. They had nothing against the accused and no reason to speak falsely to implicate the appellant, and despite searching and severen made nothing could be brought out to discredit their evidence., the brother of the accused, and, the member of the Panchayat, also confirmed that5 and 6 had identified the appellant as the person who had taken away Gracy on 16.9.94 when they went to enquire about the deceased, accompanied by the accused also. The learned Judges of the High Court also were got convinced with the conclusions of the trial Court in this connection and accepted the same to be correct on the basis of the evidence of9 and 26. We see no infirmity whatsoever either in the manner of appreciation of their evidence or the reasons assigned in support of the same and, therefore, this finding of fact appears to be well justified on the materials on record. The same does not also call for interference in this appeal10. As for the homicidal fact is concerned, there is only circumstantial evidence. It is often said that though witnesses may lie, circumstances will not, but at the same time it must cautiously be scrutinised to see that the incriminating circumstances are such as to lead only to an hypothesis of guilt and reasonably exclude every possibility of innocence of the accused. There can also be no hard and fast rule as to the appreciation of evidence in a case and being always an exercise pertaining to arriving at a finding of fact the same has to be in the manner necessitated or warranted by the peculiar facts and circumstances of each case. The whole effort and endeavour in this case should be to find out whether the crime was committed by the appellant and the circumstances proved form themselves into a complete chain unerringly pointing to the guilt of the appellant. The formidable incriminating circumstances against the appellant, as far as we could see, are that the deceased was taken away from the Convent by the appellant under a false pretext and she was last seen alive only in his company and that it is on the information furnished by the appellant in the course of investigation that the jewels of the deceased, which were sold to1 by the appellant, were seized under Ex.5 and 6 were categorical in their evidence that those jewels were worn by the deceased at the time when she left the Convent with the appellant, who conducted the post mortem, noted about 20 injuries in detail in his Report, Ex.. Though the learned counsel for the appellant attempted to substantiate that some of the injuries taken together with height of the deceased and the width of the railway track could not have possibly resulted by laying the victim on the track and, therefore, it should be reasonably presumed that the deceased committed suicide by jumping before the moving train, we are unable to persuade ourselves to agree with the said line of thinking since it would require too manyl assumptions to be made to believe such suggestions. Having regard to the categorical and positive medical opinion that persons who commit suicide usually do not lay in such posture and the further evidence of0 that though he could not state that the victim was strangulated before she was laid on the railway track, he was at any rate definite in his opinion that the nature and type of injuries sustained by the victim is suggestive of only a case of homicide. Though the nature of all such injuries could not rationally be explained, they could very well be inflicted when the body got twisted and pushed away from its original position due to the reaction ofe in the body the moment it first got into contact with the moving train and also on account of being thrown away due to the impact of the fast moving train. There is nothing on record to suggest or even surmise a plausible reason of her own on that evening for the victim to commit suicide. Consequently, the theory of suicide suggested to save the appellant seem to be more a matter (of) invention based on imagination than even a remote possibility warranted or could reasonably be justified on the proved facts5 to 8 are the inmates of the Convent holding different positions therein and all of them identified MOs 1 to 3 as the ornaments belonging to the deceased Gracy and which she was wearing when she left the Convent with the accused., the brother of the victim, also identified the jewels. They have also spoken in unison to the other details relevant, which when cumulatively taken up for consideration reasonably as well as with great certainty establish the various incriminating factors against the appellant involving with the crime, which, if at all, could be properly and reasonably be explained only by him. But they remain totally undeciphered and unexplained by the attitude of total denial of everything by the appellant.1 was working as Manager in the Jewellery Shop in question at Angamaly where the appellant was said to have taken MOs 1 to 3, and sold them for Rs.. Before actual sale, the jewellery was weighed and the slip, Ex., seized from the diary of the appellant, was said to have been prepared and given to him at that time. The worker in the shop,, who prepared the slip after weighing the MOs 1 to 3, has also identified the jewels and the slip.2 is the gold plater having his shop adjacent to the jewellery shop in question. Their evidence, though certain discrepancies not so material as to effect (affect ?) their truthfulness are attempted to be pointed out, positively prove that only the accused sold those jewels representing to be that of his wife and money was urgently required to meet some hospital expenses. There is no reason for them to either falsely implicate or depose against the appellant and we see no relevant or valid reason to disbelieve them. The adverse comments made by the trial judge against their evidence merely on account of certain minor discrepancies are neither justified nor those discrepancies could themselves be said to be enough to detract from the truthfulness or genuineness of their deposition., a former employee of the accused in his quarry, was shown to have been paid Rs. 2,500by the accused and though the prosecution would attempt to connect the same with the sale proceeds of the jewellery of the deceased,7 could not specifically remember the actual date of the said payment. The appellant could not explain how he came into possession of the ornaments belonging to and worn by the deceased when she left the Convent on the evening of the fateful day with him. As noticed earlier, the deceased was last seen alive only with the appellant and thereafter she neither returned to the Convent nor her home, alive and not found anywhere else also by any one, outside the company of the appellant13. Taking advantage of the discrepancies pointed out by the Sessions Judge, the learned counsel for the appellant also tried to contend that the evidence of1 to 14 is not trustworthy. It is not that every discrepancy or contradiction that matters much in the matter of assessing the reliability and credibility of a witness or the truthfulness of his version. Unless the discrepancies and contradictions are so material and substantial and that too are in respect of vitally relevant aspects of the facts deposed, the witnesses cannot be straightaway condemned and their evidence discarded in its entirety. On going through the entire evidence of1 to 14, we are unable to come to the conclusion that they are not speaking the truth or that they cannot inspire confidence in the mind of any reasonable person or authority to adjudge disputed questions of fact, so as to eschew entirely their evidence from consideration, whatsoever14. The incriminating circumstances enumerated above unmistakably and inevitably lead to the guilt of the appellant and nothing has been highlighted or brought on record to make the facts proved or the circumstances established to be in any manner in consonance with the innocence at any rate of the appellant. During the time of questioning under Section 313, Cr.P.C., the appellant instead of making at least an attempt to explain or clarify the incriminating circumstances inculpating him, and connecting him with the crime by his adamant attitude of total denial of everything when those circumstances were brought to his notice by the Court not only lost the opportunity but stood. Such incriminating links of facts could, if at all, have been only explained by the appellant, and by nobody else they being personally and exclusively within his knowledge. Of late, Courts have, from the falsity of the defence plea and false answers given to Court, when questioned, found the missing links to be supplied by such answers for completing the chain of incriminating circumstances necessary to connect the person concerned with the crime committed (see State of Maharashtra v. Suresh, 2000(1) SCC 471). That missing link to connect the, we find in this case provided by the blunt and outright denial of every one and all the incriminating circumstances pointed out which, in our view, with sufficient and reasonable certainty on the facts proved, connect the accused with the death and the cause for the death of Gracy. For all the reasons stated supra, we have no hesitation to agree with the findings of the Division Bench of the High Court holding the appellant guilty of offences under Section 302 for committing the murder of Gracy and for robbing her of her jewellery worn by herMOs 1 to 3, under Section 392. The deceased meekly went with the accused from the Convent on account of the misrepresentation made that her mother was seriously ill and hospitalised apparently reposing faith and confidence in him in view of his close relationshipbeing the husband of her own sister, but the appellant seems to have not only betrayed the confidence reposed in him but also took advantage of the loneliness of the hapless women. The quantum of punishment imposed is commensurate with the gravity of the charges held proved and calls for no interference in our hands, despite the fact that we are not agreeing with the High Court in respect of the findings relating to the charge under Section 37615. The charge under Section 376, IPC, is mainly fastened upon the appellant on the `last seen together theory. The factum of rape of the deceased is sought to be proved from Ex., a report on examination of vaginal smear collected and said to confirm the presence of semen and spermatozoa, indicating that she should (might ?) have had sexual intercourse before her death. Ex., chemical report, also showed that semen was detected in one of the under skirts found on the body of the deceased. Ex., the doctor, also showed that thet was potent. But in the Report, Ex., it was specifically stated that the dhoti of the appellant, subjected to chemical examination, contained no stains of blood or semen. If there had been any forcible sexual intercourse, the victim must have made some strong resistance being a grownup lady and in the process, some injuries would have been found on the vaginaprivate parts of the body or some other parts indicative of any such use of force and it would be too much to assume that there would have been no injuries whatsoever on the body, on this account. Though injuries on the body is not always a must or sine qua non to prove a charge of rape, having regard to the case of the prosecution that the victim had been subjected to brutal rape and forced sexual intercourse, this aspect of the matter cannot be completely lost sight of. The deceased was stated to be of about 26 years age, when she died and she is the sister of the wife of the appellant. It is not as though they were shown earlier to be on inimical terms. Anything possible might have happened and the facts found proved do not irresistibly lead to the only conclusion of the guilt of the appellant in respect of an offence under Section 376, IPC. Consequently, we are prepared to give the benefit of doubt to the appellant and acquit him of the offence under Section 376, IPC, and the conviction recorded and sentence imposed by the High Court upon the appellant on this account is set aside.