Kamal Shah vs State State Vs Padmavathi Shah

A.S. Venkatachalamoorthy, J.—There are two Appellants/accused who are son and mother respectively. They were tried by the learned Principal Sessions Judge, Pondicherry for various charges for their alleged complicity in the crime viz., the brutal murder of one Parvathi Shah on the night of 14/15-07-99 at No. 47, St. Louis Street, Pondicherry.

Learned Sessions Judge found the first accused guilty u/s 302 IPC, 375 IPC, 201 read with 34 IPC, 203 IPC, and 309 IPC. For the offence of murder of the deceased Parvathi Shah, the Sessions Court sentenced him [the first accused] to death and directed that he be hanged by neck till his death and various sentences are awarded with reference to conviction for other offences.

A-2 was found guilty u/s 201 read with 34 IPC, and sentenced to undergo rigorous imprisonment for two years.

The above appeals Viz., C.A, Nos. 1012 and 779/2000 have been filed by A-1 and A-2 respectively, questioning the correctness of the judgment by the lower court for various offences.

The Union Territory of Pondicherry represented by the Inspector of Police, Grand Bazaar Police Station, Pondicherry, through the Special Prosecutor for Pondicherry, High Court, Madras, filed an appeal in Criminal Appeal No. 137/2001 against A2, questioning the correctness of the judgment of the lower court in so far as acquitting the 2nd accused u/s 302 read with 34 IPC.

The prosecution in order to bring home the guilt of the accused examined 24 witnesses, filed Exs.P-1 to P-95 and produced MOs-1 to 29.

The case of the prosecution as revealed from the evidence of the prosecution witnesses can be stated as under:

A-2 Padmavathi Shah is the wife of Premchand Shah. They have two sons by name Ravi Shah and Kamal Shah. They own a house viz., bearing Door No. 47, St. Louis Street, Pondicherry, The family was doing business at Pondicherry.

PW-1 is the brother of the deceased. He lives in a place called Venkata Nagar in Pondicherry.

The marriage of Ravi Shall and Parvathy Shah was celebrated on 20/4/1997 Since then, Parvathy Shah moved to the house of her inlaws and she was living with them in the house bearing Door No. 47, St. Louis Street, Pondicherry.

Premchand Shall took ill and roughly from March, 1999 he was taking treatment. In fact, he was hospitalised in the month of July, About a few months prior to the occurrence, PW-14, the friend''s wife of PW- 1. who is a highly qualified teacher in Tamil happened to pass through St. Louis Street when she found the deceased standing in front of her house. PW-14 and the deceased were talking for some time, and in the course of conversation, the deceased expressed her desire to learn Tamil language. However, as her father-in-law was not well, she told PW-14 that classes could be started after a month. However, PW-14 did not contact the deceased for about a month, but on 14/7/1999 that was on the French Republic Day, when she was going with her husband to a Temple known as Manakkula Vinayagar Temple, on the way she called on the deceased and that was at about 9 p.m. PW-14 went to the first floor of the house of the deceased, asking her husband to wait outside, and that inside the house she met the deceased. The deceased introduced PW-14 to the first accused and 2nd accused, who were watching Television at that time, and there was none in the house. The deceased told PW-14 that since her father-in-law had not recovered from the illness, the commencement of classes could be only after some time.

PW-2 is a resident of Pondicherry and a house-worker by profession. She worked in the house of the accused as a servant-maid and the nature of work she did was to clean the house, vessels, washing clothes, dry them up, collect them after drying and put them in the respective places. She worked in the house of the accused for a period of one month i.e., roughly from the 2nd week of June to the 2nd week of July, and she ceased to be in their service since four days prior to the occurrence. She used to work between 8 a.m. and 11.30 a.m. and from 3 pm. to 5.30 p.m. and because of her working there for considerable days i.e., for a month, she could identify the articles which she had found during the time when she was working as servant-maid in that house. She had seen in the house MO-1 knife; MO-2 wooden club; MO-3 white colour nighty; MO-4 white nighty; MO-5 white colour body pavadai of the deceassed MO-6 white colour half trouser of A-1 MO-7 white colour jatti of the deceased. MO-8 panty of the deceased.

PW-4 is a servant maid, who was working in the house of PW-1 and she attended the accused''s residence whenever PW-2 failed to turn up for work in the house of the accused. PW-1 used to depute PW-4 to do the household works in the house of the accused. One such occasion was about 3 days prior to the date of occurrence. On those occasions, she used to sweep the house, clean the vessels, dry the clothes and after drying, collect them and put them in the respective places. She could identify MOs-1 to 9.

PW-7 is me Assistant Sub Inspector of Police and he was in charge of Police Control Room, Pondicherry at the relevant point of time. On 14/7/1999, at about 11.55 p.m., he received a phone call from one Ashram person, who did not disclose the name. That person asked PW-7 as to whether he was a policewala. When PW-7 replied that it is the Police Control room and asked him to tell the matter, mere was no reply. However, PW-7 could hear one lady voice in an alarming manner for few seconds and he also could hear some shouting between me telephone caller and the lady was going on. PW-7 said "Hello, Hello" repeatedly, but after some time, the telephone got disconnected.

PW-12 resides at Door No. 20, St Louis Street, Pondicherry and he is working as a Physical Instructor in Sri Aurobindo Ashram, Pondicherry and looking after the playground and gymnasium since 1970. On the night of 14/15-7-99, Vishwa Bandu came to him, woke him up and told that A-1 Kamal Shah rang up to him and told him that his house was under attack. PW-12 asked Vishwa Bandu to call Vishveswar, who is also staying a few metres away from the house of PW-12. Accordingly, Vishwa Bandu informed Vishweswar. PW-12 and Vishwabandu left in the Fiai Car in which Vishwa Bandu came to the house of PW-12 and they proceeded to the house of the accused. Immediately after PW-12 and Vishwa Bandu left, Vishweswar also left by a two wheeler.

Vishweswar straight went to the house of PW-13 Pura (a), Purushothaman at No. 8, Marina Street, Pondicherry and informed him that an accident of stabbing in Kamal Shah''s house had taken place and asked PW-13 to inform the police. PW-13 rang up to Grand Bazaar Police Station and informed them that such an accident had taken place. PW-12 and Vishwa Bandu reached the house of the accused and they found me door of the house opened and the lights were on. On entering the house, they noticed bloodstains on the floor. They heard some shouting in the first floor and Vishwa Bandu went to the first floor. Vishwabandu immediately came back-within few minutes and told that the condition of the deceased was very bad. Vishwa Bandu then left in his car saying that he would go to bring Dr. Dilip Datta. The first accused after telephonically informing Vishwabandu as referred to earlier, even before Vishwa Bandu and PW-12 could arrive there, left by a two- wheeler to the Ashram.

PW-9 is the security in the Aurobindo Ashram Nursing Home, Pondicherry. On the night of 14/7/1999, according to him, A-1 Kamal Shah came and pressed the calling bell, whereupon he went near the door and looked through the gap and when enquired him. A-1 told that an emergency-patient had come and asked him to bring the wheel chair. PW-9 went to the first floor, informed to the staff nurse viz., PW-8 and others, collected the key from them, took a wheel chair, went to the entrance gate and opened the gate. Only Kamal Shah was there and no patient was brought and A-1 Kamal Shah went straight to the upstairs. PW-8 staff nurse also noticed this. Kamal Shall, who went up came down with his brother Ravi Shah and both of them were discussing between themselves. When Kamal Shah was asked as to what happened, he replied that an emergency case would come. Both Kamal Shah and Ravi Shah left the Nursing Home in two separate two wheelers. However, no patient, much less an emergency patient, was brought thereafter by the first accused.

After Vishwa Bandu left to bring Dr. Dilip Datta, PW-12 and Vishweswar alone were there in the house, Shortly thereafter, the first accused who had left earlier, after contacting PW-12 to bring Ravi Shall, came back with Ravi Shah and both of them went up. Then PW-12 went to a neighbour''s house viz. one Mr. Bokul to seek some help and by that time he came back, he could see Dr. Datta and everybody arrived there.

PW-6 was the Sub Inspector of Police attached to Grand Bazaar Police Station at the relevant point of time. He was on duty on the night of 14/15-7-99. He received a phone call from PW-13 at about 00-45 hours, who conveyed the message that the deceased and the accused were admitted in Government Hospital, Pondicherry for sustaining injuries due to an assault. After making necessary entries of that information in the General Diary, he proceeded to the Hospital along with two constables. When he reached there, there was no such person as Kamal Shah and Parvathy Shah. He then directed the two constables to go and verify at Door No. 47, St Louis Street, Pondicherry.

On the night of 14/15-07-1999 at about 00-45 hours, a phone call was received by PW-1''s mother and she informed PW-1 that Ravi Shah rang up and said that someone had assaulted the first accused and the deceased and caused injuries with knife and that the said information may not be published. PW-1 along with his brothers went to the house of the first accused and outside the house he saw one constable standing. At the footsteps A-1, Kamal Shah and Ravi Shah were standing and PW-1 went straight to the bedroom of the deceased in the first floor. While PW-1 was going to the bedroom of the deceased he found blood stains and blood stained foot steps on the steps and verandah, which appeared to have been washed. Apart from the first accused, Ravi Shall and a number of ashramites were there. PW-1 found the deceased placed on a woolen carpet in a lying posture, legs and hands being exposed. PW-1 also noticed that the head and face of the deceased were wet and appeared to have been washed and that the deceased had severe injuries on the head. PW-1 also notice that all the articles in the room were in tact. The 2nd accused was sitting near the deceased and PW-1 questioned her as to what happened. She did not reply but only wept Near the deceased, PW-1 noticed a wooden club MO-2, a blue colour blood stained trouser MO-6 and a pen knife MO-1 with green handle. Blood stained clothes in one corner of the room were also noticed by him and the room also appeared to have been washed.

Within few minutes, the Sub-Inspector of Police also proceeded to the said house after constables left and when he went there he saw PW- 12. PW-13, Dr. Datta, Vishwa Bandu and two others [all ashramites] and when he questioned PW-13, he did not give proper reply. The deceased was then brought from the first floor to the ground floor in a carpet and among those who brought her were Ravi Shall and A-1 Kamal Shall. The Sub Inspector noticed A2 sitting weeping. At that time, an ambulance came in which the deceased was taken to the General Hospital, Pondicherry, including Ravi Shah and Kamal Shall. PW-6 followed them to the General Hospital and before so leaving, he directed the two police constables to remain at the scene of occurrence. PW-18 was working as Casualty Medical Officer at the relevant time i.e. on 15/7/1999 at about 1.15 a.m., when Ravi Shah and A-1 Kamal Shah brought the deceased. When the Doctor saw the deceased, she was unconscious and gasping. A-1 informed the Doctor that she sustained injuries due to stabbing and hit with heavy objects by unknown people at about 00.45 hours. Shortly thereafter, i.e., at 1.25 a.m., Parvathy Shah died.

To PW-18, A-1 told that he was stabbed by unknown persons in the mid night at about 12.45. The Doctor on examination noticed two stab injuries and EX.P-14 is the wound certificate issued by the Doctor. In the said certificate, the injuries have been described as under:

a] Stab wounds on the 2.4 cm, abdomen with omentum prolaping.

b] Stab wound over the right lateral 4 cm. aspect, neck with haemorrhage.

The Doctor has opined that the injury on abdoman was grievous and the injury on the neck was simple in nature. A-1 was admitted as in patient and ultimately, he was discharged on 20/7/1999. The Doctor has opined that the injuries on A-1 are fresh and that they could have been inflicted one hour earlier and that the same could have been caused by a weapon like MO-9. He has further opined that the said injuries could have been self-inflicted. A-1 Kamal Shah was taken to the Emergency ward and PW-6, the Sub-Inspector of Police also went there and asked Kamal Shah as to what had happened. A-1 wanted a paper from PW-6 and the same was given to him. He wrote out the complaint and gave it before PW-6 and Ex.P-1 is the complaint. In the complaint, A-1 had stated that at about 00-15 hours on 15/7/1999 he heard some screaming sound from his brother''s room. Immediately, he rushed mere and saw one stranger covering his face and head, with a knife in his hand and also saw his sister-in-law lying with bleeding injuries on her face and head and when he tried to catch the intruder, he also assaulted him [A-1] with knife and caused stab injuries on the stomach and neck and escaped from the place. PW-6 thereafter returned to the police station and registered a case in Cr. No. 266/99 u/s 302 IPC, at 02.30 hours. Ex.P-2 is the printed FIR prepared by him and Ex.P-3 is the entry made by him at 00-45 hours in the General Diary, the message received from PW-13 Puru (a) Purushothaman.

PW-24, the Inspector of Police was the Circle Inspector in charge of the Grand Bazaar Police Circle police Station, Pondicherry. He received a telephonic information from PW-6 about the registration of Cr. No 266 of 1999 u/s 302 IPC, and immediately, he rushed to the police station. After receiving a copy of the Express FIR, he perused the same and took over the investigation. PW-24 along with PW-6 and other subordinates left Grand Bazaar Police Station for investigation of the case, after leaving information to S.P. (North) Finger Print Expert, Police Dog Squad and police photographer with video camera. He directed PW-6 to go to the scene of crime and to preserve everything. PW-24 then went to the Government Hospital, where he examined A-1 and recorded his statement. Thereafter, he proceeded to the scene of crime and found all have arrived. The police photographer (PW-22) took photographs and videograph of the entire scene of crime, including its proximity. PW-23, the Finger Print Expert searched for finger prints and no chance of prints could be traced. PW-24 observed the scene of crime between 07-00 hours and 08-00 hours in the presence of PW-11 Karunanithi and one Subramani and prepared rough sketch of the scene and Crime Details Form. Ex.P-6 is the rough sketch attested by PW-11 and another. Property Search and Seizure Form Ex.P-7 was prepared for seizure of articles from the scene of crime. Form the bed room of the deceased a green flowered nighty MO-3, yellow flowered nighty MO-4, blood stained wooden club MO2, plastic handled knife MO-1, bed cover MO-13, two pillows MO-11, broken brick from near the bathroom MO-12 and from the balcony, one White petticoat MO5, one half trouser MO-6, near the ground floor main door a carpet MO-10, blood stains from the bed room of the deceased MO-14, blood stains from the balcony MO-15, blood stains from the stair case MO-16, blood stains from Internet premier Service Room MO- 17, blood stains from the bedroom of A-2 MO-18 and blood stains from the inside entrance of Internet premier Service room MO-19 were seized. The Inspector also obtained the video camera print Ex.P-49 from the police photographer at 8 O'' clock under property Search and Seizure Form Ex.P-83 attested by PW-11 Karunaithi and Subramani. The Inspector then visited the General Hospital, Pondicherry and gave requisition to the Medical Officer for issuance of the wound certificate of A-1. He received the Ex.P-13 death intimation of Parvathy Shah and injured intimation of A-1 Kamal Shah. Then he proceeded to the mortuary and took finger prints and foot prints of the deceased Parvathy Shah. Inquest was held between 8.30 and 11.30 a.m. and Ex.P-84 is the inquest report. During inquest, he examined P.W.1 Ramakrishnan and recorded his statement. PW-24 seized the nighty of the deceased MO-20 produced by PW-16 Ganesan under Form Ex.P-10. He also seized one sealed cover containing blood taken in a blotting paper from PW-19 Dr. Balaraman. Ex.P-85 is the property Search and Seizure Form for seizure of blood soaked blotting paper MO-28. A requisition was sent to the Telecom District Manager to furnish details of telephone calls made from the telephone of the house of the deceased.

On 15/7/1999, the Inspector examined PWs-1, 10, 11, 12, 13 and others and recorded their statements. He also recorded the statement of A-2 Padmavathi Shah and Ravi Shah. On the same day, he inspected the scene of crime and found all the articles such as godrej almirahs, chairs, cupboards etc. in tact and not tempered with in any manner. He could not see or notice any sign of any third party of intruder meddling with any household articles in the scene of crime. He found two telephones one in the bedroom of A-2 Padmavathi Shah, and the other in the premier Service Internet Room in the ground floor. A close observation of the house and the scene of crime would reveal that there was no possibility of any intruder making any ingress and engross into or from the house. He also observed that the glass pieces imbedded over the southern wall of the scene house have not been tampered with. The latches on the main door lock remained intact. No foreign material was found at the scene of crime to probabilise entry by an intruder. In the bed room of A-1 Kamal Shah, he found the bed, mosquito net and the bed sheet in normal folded condition.

PW-19 is Dr. Balaraman, who conducted autopsy on the body of the deceased at about 11-50 a.m. On 15/7/1999, Ex.P-16 is the medico legal post mortem examination report dated 15/7/1999. The Doctor has noted the following in the said report:

EXTERNAL INJURIES [ANTE MORTEM]:

''V'' shaped lacerated injury each limb measuring 5 cms x 1 cm. x bone deep and 6 cms. x 1 cms. x 1 cm. present over middle of forehead.

Lecerated injury 4 x 1 cm. x bone deep over right fronto parietal region of scalp.

Lecerated injury 2 cms. x 0.5 cm. x bone deep over right parietal region scalp.

Lacerated injury 4 cms. x 1 cm. x bone deep over right occipital region of scalp.

Lecerated injury 1 cm. x 0.5 cm. x bone deep over mid occipital region of scalp.

Lecerated injury 3 cms. x 1 cm. x bone deep over left parietal region of scalp.

Abrasion 0.5 cm. x over right upper eye lid.

Bluish discolourisation of both upper eye lids.

Abrasion 1 cm. x 0.5 cm. over upper lip right side.

INTERNAL EXAMNATION:

Head: [Scalp, skull, brain, menigs, and blood vessels]

Scalp: Extensive contusion all over scalp.

Skull: Fracture separation 18 cms. of coronal suture present.

Brain: Sub araxhnoid Haemorrhage all over brain 7 cms. Fracture over anterior Cranial foss aright side and 10 cms. over posterior cranial fossa left side present over base of skull.

Neck Structures [skin, muscles, hyoid, thyroid] Hyoid - intac., Neck muscles: NAD.

Carulage, Larynx, trachea bronchi, etc.

a. Chest wall:

b. Pleural cavity:

c. Oesophagus: NAD

d. bronchi:

e. Lungs-Right Left Pals

f. Heart and pericardium: Normal size few drope of blood blood present.

g. Blood Vessels:

h. Diaphragm:

ABDOMEN AND PELVIS:

a. Abdoman Wall:

b. Peritoneum:

c. Stomach and contents: Coffee ground fluid [Altered blood] with places of onion, carrot and green vagetables present with no specific smell.

d. Small intestine:

e. Large intestine:

f. Liver and Gall Bladder:

g. Spleen: Pale.

h. Pancreas:

i. Kidneys, Ureters and Adrenals:

j. Urinary Bladder:

k. Genital Organs: Linear abrasion 0.5 cm. over the posterior vagina wall present. Uterus Normal size, Cavity empty, Endometrium not in menstrual phase.

Muscles and Bones

15 Spine: NAD

Viscera preserved for chemical analysis:

a. Stomach and contents and one foot of small intestine and contents.

b. Half kg. of liver and one half of each kidney.

c. Stained filter papers:

d. Sample of preservative used: [Saturated solution of sodium chloride/Rectifide spirt]

The Doctor has opined that the deceased died of shock and haemorrhage due to head injuries. Subsequently, on 7/8/1999, the Doctor gave final opinion on the post mortem certificate as:

With reference to the above, the Final Opinion as to the cause of the death of the deceased Parvathi was due to shock and haemorrhage due to head injuries. Evidence of sexual assault present, Time of death is two to four hours after her last food.

Before Court, the Doctor opined that the injuries noted in Column Nos. 7.8.9 and 12[k] are suggestive of or indicate that the symptoms or appearance or injury would have been caused when a male is forcibly thrusting his penis in the vagina of the female [deceased] during forcible sexual intercourse.

A requisition was sent on 16/7/1999, to the Resident Medical Officer, General Hospital, Pondicherry, requesting him to take samples of blood, saliva and urine from A-1 Kamal Shah. On 17/7/1999, PW-24 examined PWs-5 and 6 including A-1''s sister Hema, her husband Harshavardhana and her father-in-law, on 19/7/1999, he altered the offence from 302 IPC, into 376, 511, 354, 302, 201 and 193 read with 34 of the Indian Penal Code. Ex.P-8 7 is the alteration report. PW-24 then gave requisition to the R.M.O., Government Hospital, Pondicherry to conduct virility test for A-1 Kamal Shah and took steps to produce all the recovered properties to the Court of JFCM., Pondicherry, A-1 was discharged from the Hospital. On 20/7/1999 at 8 a.m., he arrested A-1 in front of Government Hospital. Pondicherry, and brought him to Grand Bazaar Police Station, and interrogated him in the presence of witnesses PW-20 and another. A. 1 made a confession statement in English voluntarily and the same was typed by one of the subordinates. In the said statement, A-1 had stated that he had kept Ashram telephone directory in the office room of Internet Xerox in his house and that he had thrown the knife MO-9 on the building of new museum and that the remaining piece of brick is in the open terrace of his house and that the photographs, two panties along with some Ashram papers were kept in a folder and that the same had been hidden in his bed room. He had stated that the place where he threw the knife was known only to him and that he was keeping secretly pornographic materials in his room and that if he is taken to the above said place, he shall point out the places where he had concealed those articles. The admissible portion of the statement of A-2 has been marked as Ex.P-20. The said statement has been attested by PW-20 and another.

PW-24 then proceeded to the house of the accused along with a woman Sub Inspector and others and he directed the Woman S.I. to bring A-2 Parvathy Shah. She was brought to the police station and was arrested at 10.00 a.m. She too gave a voluntary confession statement in Tamil in the presence of PW-20 and another. She admitted having concealed the blood stained panty by throwing the same by the side of the wall and if she is taken there, she would point-out the place of concealment of panties and produce the same. Ex.P-21 is the admissible portion of the confession statement of A-2 and the said statement had been attested by PW-20 and another. Thereafter, PW-24 proceeded to the house of the accused and before so doing, he requested PW-22 the police Photographer and PW-23 Finger Print Expert to be present at the house of the accused. The 1st accused took the Inspector of Police PW-24 and the two witnesses PW-20 and Lakshminarayanan to his house and he took them to the open terrace of the scene house and pointed out the pieces of brick MO-29 and the same was seized. Then A-1 took them to the first floor and produced MO-20 containing one white colour laced panty MO-8, red colour panty with "sungu" MO-21, rose colour hand kerchief of deceased one condom packet MO-24, three photographs of deceased Parvathy Shah MO-23 and one sex book titled "Ultimate Passion" MO-25. Then A-1 took them to the computer office room from where he produced essential phone directory with blood stains on the first and second pages MO-27. The above articles were seized by PW-24 under Property Search and Seizure Form Ex.P22 at 13.30 hours and the same was attested by PW-20 and Lakshminarayanan. A-2 took them to the back side of Pondicherry Museum through the entrance gate in Compagne Street, just in front of Children''s Library and then to a place in between Door No. 47 and northern side of the museum. She pointed out the blood stained white panty MO-7 hanging from cement jolly works in the garage wall which was seized at 14-00 hours under Ex.P-24 mahazar attested by the same witnesses. Thereafter, A-1 took them to the closed window of the museum wall and pointed out the knife MO-9 which was found struck. The same was recovered at 2.30 p.m. under Ex.P-23 attested by the same witnesses. PW-24 examined PW-20 Sankar and Lakshminarayanan and recorded their statements. On the same day, both the accused were sent to court and were remanded to judicial custody.

On 22/7/1999, the Inspector examined PWs-4 and 7 and also recorded further statement of PW-2 Lakshmi, the servant-maid. The recovered case properties were produced before the Judicial First Class Magistrate, on 22/7/1999. On 23/7/1999, PW-3 Nandita Shah of Quiet Healing Centre was examined and her statement was recorded. PW-23 produced a copy of the letter Ex.P-74 along with fax message dated 22/7/1999 received by him from Ravi Shah, the husband of the deceased and the same was seized under property search and seizure form at 4.30 pm, Viz., Ex.P-88.

On 24/7/1999, he sent a letter to PW-23 the Finger print Expert, enclosing the finger and palm print of the deceased. A-1 and that of A-2 taken in his presence for comparison with the chance finger prints developed from MO-9 knife. On the same day, he examined PWs-8, 9 and two others of the Ashram Nursing Home and recorded their statements. On 25/7/1999, he examined the inquest panchayatdars and recorded their statements and also the further statements of A-1''s father Premchand Shall. A requisition was sent to Judicial First Class Magistrate to send the seized articles to CFSL, Hyderabed. On 27/7/1999 along with Dr. Balaraman, he went to Central Jail, Pondicherry where PW-19 took samples of blood, urine and saliva of A-1. The same were seized under Ex.P-91. Ex.P-76 is the opinion received from the Finger print Expert PW-23. On 28/07/1999 one Krishnamoorthy, brother of the deceased appeared in the office of PW-24 and produced an audio-cassette and the same was seized under property Search and Seizure From Ex.P-92 and recorded his further statement, PW-24 prepared transcription of the telephonic conversation in that cassette and sent it to the court. Ex.P-17 is the Chemical Examiners Report received on 7/8/1999. Ex.P-18 is the final opinion given by Dr. Balaraman on the same day. Subsequently, on various dates PW-24 examined the other witnesses.

On 16/9/1999, he gave a requisition before the SDJM, Pondicherry to conduct Test Identification parade for the case properties in the case, in respect of witnesses PW-2 Lakshmi and PW-4 Jayalakshmi. From PW-23, he received a letter through Crime Record Bureau dated 18/9/1999 which is Ex.P-94. On 21/9/1999, he gave requisition to PW-15 for a report as to whether phone numbers 334978 and 223672 of Door No. 47, St. Louis Street, Pondicherry were in working condition and were in order during the period from 13/7/1999 to 15/7/1999. On the same day, he gave requisition for production of General Diary maintained at police Central Control Room for the dates 14/7/1999 and 15/7/1999. PW- 7 the Assistant Sub Inspector produced the General Diary containing EXS.P-4 and P-5 and PW-24 seized the same under property Search and Seizure From Ex.P-95. PW-24 proceeded with the investigation and recorded statements of the witnesses. After completing the investigation, he filed the report on 11/10/1999. As Ravi Shah, the husband of the deceased has been missing, he has not been arrayed as an accused in this case.

When A-1 was questioned u/s 313 of Code of Criminal Procedure, he denied having committed any offence. For the question as to whether he would like to say anything, he came out saying as to what happened at the time of occurrence. In brief, he had stated that on the mid-night of 14/7/1999 [00-45 a.m. of 15/7/1999], he woke up on hearing some screaming noise from his brother''s room and he rushed there and saw deceased lying on the floor with injuries in a pool of blood. He has stated that an intruder who was there stabbed him on his stomach and neck and that intruder thereafter escaped. According to him, not minding the wound he had sustained, he rushed to his mother''s room, woke her up, narrated to her what had happened and both of them rushed to the room, where the deceased was lying. A-1 had further narrated that A-2 took the head of the deceased and kept it on her lap and asked A-1 to call the Doctor. He [A-1] immediately came down to get the telephone number and rang up to one Vishwabandu, who is close to Dr. Dilip Dutta and who could also get an ambulance. After mat, he tried to contact his brother Ravi Shah in the Ashram. As he could not get him, he took a two-wheeler, went to the hospital and brought his brother. In the meantime, all the Ashram people were there including Dr. Datta and as the condition of the deceased was bad, they brought her down in a carpet and she was taken in an ambulance to the Hospital. In the Hospital, the deceased was declared dead within ten minutes after arrival in the Hospital. The Inspector questioned him as to how the occurrence took place and further asked the first Accused to give in writing. The first accused wrote down what all happened and signed it and handed over to him. A-1 was operated and on 20/7/1999, in the morning S.S.P. Anand Mohan took him out and he was taken to the Grand Bazaar police Station and within an hour thereafter A-2 was also brought to the police station. A-1 pleaded innocence and further mentioned that he had a very good and smooth relationship with the deceased and the case has been foisted due to pressure.

A-2 was also similarly questioned. She also denied her complicity in the crime.

This being a case of circumstantial evidence, this Court has to advert to the legal position with reference to various Rulings of the Supreme Court and keep in mind as to what is the nature and extent of burden of proof, which the prosecution has to discharge and what are the safeguards which the Court must take in dealing with such cases. One of the leading decision on this point rendered by the Supreme Court way back in the year is the one reported in Hanumant Vs. The State of Madhya Pradesh, wherein, the Apex Court has ruled thus:

In dealing with circumstantial evidence, there is always the danger that conjecture of suspicion may take the place of legal proof. It is therefore right to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all "the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

Mahajan, J. as he then was has also aptly referred to a passage containing the warning addressed by Baron Alderson to the jury in Reg v. Hodge (1832) 2 Lew 227 which is stated as under:

The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.

In Dharm Das Wadhwani Vs. The State of Uttar Pradesh, , the Supreme Court has held thus:

unlike direct evidence the indirect light circumstance may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction.

In Kishore Chand Vs. State of Himachal Pradesh, , the Apex court pointed out the question of proof necessary in a case of circumstantial evidence and what are the cautions to be taken by Courts in dealing with such matters. In para Nos. 4 to 6, the Supreme Court observed as follows:

The question there, is whether the prosecution proved guilt of the Appellant beyond all reasonable doubt. In a case of circumstantial evidence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established. All the facts so established should be consistent only with the hypothesis of the guilt of the accused. The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing to wards the guilt of the accused. They should be such as to exclude every hypothesis but the one proposed to be proved. The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to be accused beyond all reasonable doubt. It is not necessary that each circumstance by itself be conclusive but cumulatively must from unbroken chain of, events leading to the proof of the guilt of the accused. If those circumstances or some of them can be explained by any of the reasonable hypothesis the accused must have the benefit of that hypothesis.

In assessing the evidence imaginary possibilities have no role to play. What is to be considered are ordinary human probabilities. In other words, when there is no direct witness to the commission of murder and the case rests entirely only circumstantial evidence, the circumstances relied on must be fully established. The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of continuity of the circumstances is broken, the accused is entitled to the benefit of the doubt.

In assessing the evidence to find these principles, it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other. In regard to the proof of basic or primary facts, the court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt. The court has to consider the evidence and decide whether the evidence proves a particular fact or not. Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt. There is a long distance between may be true and must be true. The prosecution has to travel all the way to establish fully all the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclusive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution. In other words, there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show what within all probability the act must have been done by the accused and the accused alone.

In the decision reported in Jaharlal Das Vs. State of Orissa, , the Supreme Court ruled that to rest a conviction on circumstantial evidence, it was to satisfy three conditions. The Supreme Court rules thus:

As already mentioned this cases rests purely on circumstantial evidence. It is well settled that the circumstantial evidence in order to sustain the conviction must satisfy three conditions; [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 the guilt of the accused; [iii] the circumstances taken cumulatively, should from 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 it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.

It may not be necessary to refer to other decision of this Court except to bear in mind a caution that in cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof. The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. Bearing these principles in mind we shall now consider the reasoning of the courts below in coming to the conclusion that the accused alone has committed the offence.

In the decision reported in 1994 I L.W. 9 Crl 186 (Varkey Joseph v. State of Kerala, rep. by the Circle Inspector of Police, Puthencruzm, Kerala), the Supreme Court laid stress on the fact that mere suspicion cannot be a substitute for proof and observed thus:

Suspicion is not the substitute for proof. There is a long distance between may be true and ''must be true'' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. We have already seen that the prosecution not only not proved its case but palpably produced false evidence and the prosecution has miserably failed to prove its case against the Appellant let alone beyond all reasonable doubt that the Appellant and he alone committed offence.

In the case reported in 1995 SCC (Cri) 883 (Akilesh Hajam v. State of Bihar) the supreme court ruled thus,

On going through the prosecution evidence though it appears in all probability the Appellant may be the culprit, but probabilities and moral convictions have no place or any role to play to convict a person in the absence of legal evidence. There is a long distance to be travelled between the expression "may be" and "must be". Howsoever strong the emotional considerations may be but the same cannot take the place of proof.

In the decision reported in Balwinder Singh Vs. State of Punjab, , the Supreme Court has pointed out that 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 consideration. To quote the exact wordings from the judgment:

In a case based on circumstantial evidence, it is now well settled that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances 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, however strong they may be, to take the place of proof. It is in the context of the above settled principles, that we shall analyse the evidence led by the prosecution.

Also refer: a) Shripad Shivram Kulkarni Vs. State of Maharashtra,

b) 1982 SCC (Crl) 431 (Gambhir v. State of Madhya Pradesh)

c) Ashok Kumar Chatterjee Vs. State of M.P.,

d) State U.P. Vs. Dr. Ravindra Prakash Mittal,

e) 2000 S.C.C. (Crl) 1392 (Ramdeo Chauhan v. State of Assam)

From the above Rulings, the following would emerge:

[i] In a case of circumstantial evidence, all the circumstances from which conclusion of guilt is to be drawn must be fully established.

[ii] All the facts so established should be consistent only with the hypothesis of the guilt of the accused.

[iii] The proved circumstances should be of a conclusive nature and definite tendency, unerringly pointing towards the guilt of the accused.

(iv) The circumstances must be satisfactorily established and the proved circumstances must bring home the guilt of the accused beyond all reasonable doubt.

(v) The cumulative effect of the proved circumstances must form unbroken chain of events leading to the proof of the guilt of the accused.

[vi] In assessing the evidence, imaginary possibilities have no role to play and the chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused.

[vi] 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.

Let us now proceed to consider me circumstances relied on by the prosecution one by one and examine whether those circumstances have been established satisfactorily and whether those established circumstances taken cumulatively, form a chain and lead to the only irresistable and inescapable conclusion that the accused are guilty or in other words, whether those circumstances unerringly point towards the guilt of the accused and that such evidence/circumstances are inconsistent with the innocence of the accused.

THE DECEASED, LAST SEEN ALIVE IN THE COMPANY OF ACCUSED 1&2:

The 2nd accused is the wife of one Premchand Shah. They have two sons by name Ravi Shan [since absconding] and Kamal Shah, the first accused herein.

The deceased Parvathi Shah is the wife of Ravi Shall and their marriage was celebrated on 20.04.1997. All of them [including the deceased - the deceased till her death] have been residing at Door No. 47, St. Louis Street, Pondicherry.

PW-14 is one Vijayalakshmi, residing at Door No. 263 Bharathiar Street. Pondi-cheery. She has deposed before the Court that she had studied M.A., M. Phil. [Tamil], and B.Ed. [Tamil] and that in July 1999, after going to beach, while she was coming along St. Louis Street saw Parvathi Shah standing near her house. She has deposed that in the course of conversation. Parvathi Shall expressed a desire to learn Tamil from PW-14 and enquired whether she could teach her Tamil Language. PW-14 expressed her willingness, but since the deceaseds father-in-law was not well, she requested PW-14 to contact her after a month. However, PW-14 did not contact the deceased for some time. According to PW-14, at about 9 p.m. on 14/7/1999, she was on her may to Manakula Vinayaka Temple along with her husband, when she thought that she could ascertain from the deceased as to when the classes for the deceased could be started. PW-14 asked her husband to wait outside the house of the deceased and went to the visitors room, where she saw the deceased, her mother-in-law [A2] and brother-in-law [A1] watching Television. According to PW-14, the deceased introduced her to A1 and A2. The deceased informed PW-14 that her father-in-law was not keeping good health and that she would let PW-14 know later the convenient date for starting classes.

It may be straight away mentioned here that this witness was not cross examined. The visit of PW-14 and her seeing A1, A2 and the deceased in the house on 14/07/1999 at about 9 p.m. was put to both the accused in the questioning u/s 313 Code of Criminal Procedure (Question No. 132), and born the accused admitted the correctness of the same.

In fact, the first accused has narrated as to what happened on the date of occurrence by way of answer to Question No. 244. In the said answer, the first accused has categorically stated that he went to the Ashram to bring his brother viz., Ravi Shall and that thereafter, both of them rushed back to their residence. He has also specifically mentioned that his father was fast asleep in the Ashram Hospital. Hence Ravi Shah and the father of the first accused were in the Ashram on the night of 14/15/7/1999.

From the above materials available on record, it is crystal clear that on the night of 14/15/07/1999, in the house belonging to the family of the accused, the inmates were only the Accused 1 and 2 and the deceased, at the time of occurrence.

In fact, we may also add that the aspect of the prosecution case is not seriously disputed. We have adverted to this evidence available on record so that this Court can point that it is for A-1 andA-2 to explain the circumstances leading to the death of Parvathi Shah. In this context, we refer to certain rulings of the Supreme Court reported in 1993 SCC (Criminal) 655 (Kundula Bala Subramnaniyam v. State of A.P.); 1933 SCC (Criminal) 435 (Ganeshlal v. State of Maharashtra); 1999 SCC (Crl) 17 (State of Rajasthan v. Mahavir) 2000 SCC 926 (Joseph v. State of Kerala).

MOTIVE FOR A-1: The case of the prosecution is that the first accused had a passionate sinful desire to rape his sister-in-law, the deceased herein and then to commit suicide and the whole occurrence took place in the first accused implementing such desire/cruel ambition.

The question is whether the prosecution has proved this circumstance, which in our opinion, is an important circumstance.

A-1 Kamal Shall, has a sister by name Hema, who resides in Mumbai. PW-3 is one Nanditha Shah, who is a Homeopathy Medical Practitioner. The said witness has deposed before the court that she is a Homeopathy Medical Practitioner and one of the branches she has been practising is giving treatment to the patients with mental depression. According to her, the first accused was brought to her clinic at Mumbai in the year 1998 by his sister by name Hema and by the 2nd accused, as A-1 was suffering periodical mental depression. According to her, she was consulted by them as the first accused had a mental turmoil as to whether he should become a "sanyasi" or to get into business. The witness has categorically deposed that she treated the first accused and prescribed medicines and thereafter, the first accused went back to Pondicherry. PW-3 later came down to Pondicherry and she was treating patients in the clinic known as "Quiet Healing Centre" in the Ashram. Her testimony is to the effect that within few days after her arrival at Pondicherry, the brother of the first accused viz., Ravi Shah called her over phone and informed her that the first accused used to keep himself inside the room alone bolting from inside and that he was not going outside the house and also not taking food. According to PW-3, the first accused, heeding to her advice and Ravi Shah, came and stayed in the "Quiet Healing Centre" where PW-3 treated him. PW-3 is positive that during the period of treatment in Quiet Healing Centre, A-1 expressed to her that he has a desire to rape his sister-in-law (i.e.,) the deceased and then to commit suicide, to end his misery. She has also stated that right from the beginning i.e., when she started seeing his case, the first accused was indulging in masturbation.

Learned Counsel for the Appellant contended that the evidence of PW-3 is, on the face of it. not worthy of acceptance for the following reasons:

[i] PW-3 Dr. Nanditha Shah told the Inspector of Police in the course of investigation that she is not a qualified Medical Officer to deal with mental sickness and hence, she is not an expert in treating such patients. Hence, even assuming A-1 had any such mental turmoil, PW-3 would not have been consulted for such complaint.

[ii] PW-3 was consulted at Mumbai. But, the complaint at that time was totally different viz., A-1 should become a "sanyasi" or a businessman.

[iii] PW-3 has not placed before Court any medical record such as case sheet etc., to support her contention.

[iv] If really the first accused had told P.W.3 about his lust, she would have certainly informed the same at least to the 2nd accused, the mother of the first accused and this conduct on the part of PW-3 would throw a very serious doubt and should persuade the Court to reject her testimony.

It is not in dispute that PW-3 is a Homeopathy Medical Practitioner and she has been treating patients with mental depression. She has categorically stated in the cross examination that the Homeopathy system has medicines to treat mentally ill persons. In the year 1998, PW-3 was consulted by the sister of A-1 and A-2 for the mental turmoil of the first accused as to whether A-1 should become a "sanyasi" or a businessman. At this juncture, it has to be pointed out that if PW-3 was not good enough in the opinion of A-2 and Hema (the sister of A-1), to treat mentally ill patients, they would not have taken the first accused to PW-3. On behalf of the Appellants, an attempt has been made to demonstrate before the Court that PW-3 is not a qualified Medical Officer to deal with mental illness, but however, it is clear from her evidence that she has been practising as a Homeopathy Doctor and she has been treating mentally ill persons as well. PW-3 thereafter came from Mumbai and she was in charge of Quiet Healing Centre in the Ashram, where the patients with mental depression etc., are being treated. According to PW-3, she was informed by the brother of A-1 that A-1 used to remain alone in the room and refused to take food and on the advice given by her and Ravi Shah, he came and stayed in Quiet Healing Centre and took treatment. A clear and pointed question was put to the first accused in the questioning u/s 313 Code of Criminal Procedure For clarity, we quote the question and answer herein;

Question: PW-3 has further stated that she was coming to Quite Healing Centre, Pondicherry and she knew that you A1-Kamal Shah was not well even before she arrived at Pondicherry and she said that she would see you A-1, as soon as she comes to Pondicherry. What do you say?

Answer: I met her at Pondicherry at Quiet. From this, it is very clear that A-1 met PW-3 at Quiet Healing Centre, a Clinic/Home, which is a wing of the Ashram, where mentally depressed patients are being treated.

The only suggestion put to the witness in the cross examination on behalf of the Appellant is that the family of the accused was not satisfied with the treatment given by PW-3 at Mumbai and that the accused told others in Pondicherry that she is not a good Doctor and being aggrieved by such propagation by the first accused, she invented incidents which never occurred and conversations which never ensued between her and A-1 and that she has deposed falsely at the instance of the police.

The defence as put forward from this suggestion, on the face of it, is liable to be turned down. If really the accuseds family was not satisfied with the treatment given by PW-3 at Mumbai, certainly they would not have approached PW-3 at Pondicherry and that too in Quiet Healing Centre. At the risk of repetition, we have to mention that A-1 has categorically stated having met PW-3 in the Quiet Healing Centre. There is no suggestion that A-1 met PW-3 at Quiet Healing Centre accidentally or as a courtesy call or for some other purpose.

With regard to the third contention that non-production of medical records such as case sheet etc. by PW-13 is concerned, we can straightway point out that in the cross examination, no questions were put to the witness. On behalf of the accused, PW-3 could have been cross examined as to whether she would be in a position to produce the medical record such as case sheet etc. That would only show that had such question been put to PW-3, she would have produced those documents or it may be that the accused knew that PW-3 had been in possession of the case records and that was why PW-3 was not cross examined on those lines.

Next it is contended that PW-3 did not reveal what A-1 told her at Mumbai viz., to rape his sister-in-law and then to commit suicide is concerned., it has to be pointed out that PW-3 has not stated anything about it either way as to whether she told the other members of the family viz., A2 and others or not. In the cross examination, no questions were put to PW-3, in this regard to find out the alleged reasons for the non-disclosure to A-2 and others. Having failed to put questions to PW-3 when she was in the witness box, it would not be open for the Appellants to come forward with such contention. Or in other words, we categorize this submission/defence purely as an after thought.

Learned Counsel for the Appellant also contended that while PW-3 has in her cross examination admitted that the Investigation Officer in this case met her several times. PW-24, the Inspector has deposed that he met the Doctor only once. According to the learned Counsel, this would show that the Investigating Officer rather persuaded PW-3 to depose falsely before Court to substantiate the case of the prosecution. We do not find any substance in this contention. Even assuming that the Investigating Officer met the Doctor more than once, there is nothing wrong in such Officer meeting the Doctor several times for the purpose of investigating a murder case of this nature. It is not as if PW-3 is a justice woman and she has readily subjected to the dictates of the police. PW-3 is admittedly a Doctor, who also practised in Mumbai and thereafter came down to Pondicheery some time before the occurrence and even at that time, she was aged 40 years.

The case of the prosecution is that A-1 Kamal Shah, who was admitted in the Hospital in the early hours was treated and discharged on 20/7/1999. PW-24 arrested him in front of the Government Hospital, Pondicherry and brought him to the Grand Bazaar Police Station. According to PW-24, the Investigating Officer, he interrogated A-1 in the presence of witnesses PW-20 and one Lakshminarayanan, when A-1 made a statement voluntarily in English which was typed by one of his subordinates in his presence. In the statement, he mentioned that he had a folder viz., MO-26 containing MOs-8 and 21 two jattis belonging to the deceased; three photographs of the deceased, out of which one is in swimming dress: one condom pocket and one book called "ultimate desire" and he had secretly kept it (the folder) in his room in a place exclusively known to him and that if he is taken there, he would produce the same Ex.P-20 is the admissible portion of the said voluntary statement of A-1. Later on, A-1 was taken and he produced the folder MO-26 and it was found that it contained all those articles. The material objects were seized under mahazar Ex.P-12 signed by PW-20 and one Lakshminarayanan. The prosecution case is that MO-8 jatti of the deceased has been identified by PWs-2 and 4, who worked in the house of the accused for some time. According to the prosecution, this recovery is very clinching and that the same is in the nature of corroboration of the passionate sinful desire of the first accused, which he expressed to Doctor PW-3 and which was the sole motive for the first accused to commit the crime.

Learned Counsel for the Appellant contended that

(a) the so called recovery by the police pursuant to the voluntary statement made by A-1 is completely false and it was only a make belief affair. According to the learned Counsel, the person alleged to have been present at the time of first accused giving voluntary statement as well as at the time of recovery is PW-20, who is indebted to PW-1''s family, and hence he is an interested witness and that is why he readily obliged PW-1 and the police.

[b] The Supreme Court has repeatedly held that whenever confession of the accused is recorded or any seizure or recovery is effected, the same should be witnessed and attested only by the witnesses of that locality. In this case, when admittedly PW-20 resides 3 kms, away and as his presence at that time near the police station was only by chance, no reliance should be placed on the alleged confession made by A-1 as well as the alleged recovery pursuant to that.

In this context, learned Counsel for the Appellants also pointed out that in the cross examination, PW-20 has admitted that he used to commence his work in the morning at 7.30 a.m., whereas, on the day in question i.e., on 20/07/1999, he would claim that he was returning from the market and at that time that was about 8.30 a.m.

[c] MO-8 jatti of the deceased has been identified by PWs-2 and 4. They are the witnesses secured by PW-1 and made to depose falsely before the court. According to the learned Counsel, their testimonies certainly do not infuse confidence and hence, they are liable to be rejected.

[d] Number of witnesses viz., PWs-1, 11, 22 and 24 have clearly deposed that the police made a thorough search of the house of the accused even on 15th and as many as 10 police personnels were there in that operation. That being so, the claim that they were not able to lay their hands on MO-26 folder, cannot be belived.

As already pointed out, A1, who was admitted in the Hospital was discharged on 20/7/1999 and he was arrested in front of the Hospital by PW-24 at 8 a.m. and was taken to Grand Bazaar Police Station. According to the Investigating Officer, the accused made a voluntary statement and he recorded the same in the presence of PW-20 and another. The question is as to whether really the first accused made any confession statement and pursuant to that the recovery was made. Apart from the evidence of PW-24, the Investigating Officer, we have the evidence of PW-20.

PW-20 is a Chartered Accountant by profession. On the date of examination he was aged 48 years and has been practising so since 1975. He has stated in his chief examination that he along with one Lakshminarayanan were returning from the market along Jawaharlal Nehru Street. Seeing a big crowd at Grand Bazaar Police Station they went and enquired and they were informed that A-1 had been brought to the Police Station and when he was standing in front of the police station, a police personnel came and asked them whether himself and Lakshminarayanan would be willing to be the witnesses while recording the statement of the first accused and for which, they agreed. They were witnesses not only when A1 gave the voluntary confession statement, but also at the time of recoveries made pursuant to the statement made by him.

True, this witness belongs to a place about 3 kms, away from the police station, as could be seen from the cross examination. But, that does not by itself disqualify him from being a witness. He has accounted as to how he came to be present there at that time. After all, he is a private practitioner and simply because he used to start his work normally by 7.30 am, it should not persuade this Court to reject his claim that he went to the market and returned via Jawaharlal Nehru Street at about 8.30 a.m. It is needless to mention that as a private practitioner, he has the advantage and liberty to change his working hours.

The next aspect to be noted is that the main ground of attack by the Appellants is that PW-20 and his brother-in-law Lakshminarayanan are obliged to the family of one Natarajan whose son is PW-1 in this case and that they have deposed falsely only because of their family endearment. In fact, the suggestion that was put to this witness in the cross examination was that through Natarajan i.e., PW-1''s father, he [PW-20] has established lot of business contacts and hence, he is beholden to the family. But, that has been categorically denied. As already pointed out, PW-20 appears to be a respectable witness, carrying on a dignified profession viz., a Chartered Accountant for more than two decades.

Learned Counsel for the Appellant drew the attention of this Court to a ruling of the Supreme Court reported in Kochu Maitheen Kannu Salim Vs. State of Kerala, and submitted that the apex Court has endorsed the correctness of the view taken by the High Court in that case that failure to associate the independent person of the locality even though there were number of houses near the place where the weapon was seized, would throw doubt.

As far as that ruling is concerned in that reported case, there was recovery of a knife [MO-3] pursuant to the confession statement made by the accused. This seizure was effected in the presence of a witness [PW-17 in that case] and another. The Supreme Court on examining the testimony of PW-16 in that case came to the conclusion on facts, that he [PW-16] was a man of the police and not an independent person. That being so. the said Ruling will not help the Appellant in any way.

It has to be remembered that it is not as if that the witness for recording a confession statement by the police or for recovery on the basis of said admissible portion of the statement has to be only in the presence of a witness of that locality. It is not as if the persons outside the locality, if attest, that has to be rejected in toto. In all these cases, it depends upon the facts and circumstances and ultimately the question is whether such attesting witness is a reliable witness and whether he speaks truth. In fact, the Supreme Court in a case reported in Mst. Dalbir Kaur and Others Vs. State of Punjab, has held that recovery by the Investigating Officers cannot be disbelieved mainly because the attesting witnesses were not examined.

In yet another decision reported in Ronny @ Ronald James Alwaris Etc. Vs. State Of Maharashtra, , the Supreme Court has held that on the ground that the attesting witness for recovery are not local witness it will not discredited the recovery once their evidence is trustwoorthy and acceptable. The Supreme Court in that case observed thus.

...It may be noted that the evidence of the witness of search was accepted notwithstanding the fact that he was not of the locality where the search took place and notwithstanding the fact that he was brought by the police along with them for the purpose of search. The evidence, however, can be rejected if it suffers from any serious infirmities or if there is any inherent inconsistency in the testimony. If there is intrinsic merit in the evidence of the witness of search the same cannot be rejected solely on the ground that witness is not from the locality of search or that he was brought by the police with it.

In a very recent case reported in Sanjay v. State [NCT of Delhi] AIR 2001 SCW 767. the Supreme Court has ruled as under:

The disclosure statements by the accused persons stand established by the testimony of Satish Khanna (P.W.22) and the Investigating Officer. The trial court was, therefore, justified in relying upon the circumstances of the disclosure statements of the accused persons and consequent recovery of stolen property, blood-stained shirt of Vinod Appellant besides weapon of offence. We find no substance in the submission of the learned defence counsel that as no independent witnesses were associated with the recoveries, a doubt is created in the prosecution version Satish Khanna [PW-22] is the natural witness being brother of the deceased to be present during the investigation when the accused are stated to have made the statements within the meaning off Section 27 of the Evidence Act. Otherwise also, there is no reasons to disbelieve the testimony of the IO Harbans Singh [PW-25].

(emphasis supplied)

We are of the considered view that the testimony of PW-20 is worthy of acceptance and consequently we accept the case of the prosecution that A-1 did make the statement (i.e.) Ex.P-20 and also the recovery under EX.P-22. MO-8 and MO-21 two jatties were kept in the folder MO-26 which in turn was produced by A-1. To establish that MO-8 belonged to the deceased, two witnesses have been examined viz., PWs.2 and 4.

PW-2 is one Lakshmi, a resident of Pondicherry. She has deposed before Court that she was working as servant-maid in the house of the accused for about a month till four days prior to the date of occurrence. She has further stated that she could identify the articles which she found/noticed during the time when she was working as a servant-maid in that house. Apart from the other articles, she has also identified MO-8 jatti of the deceased.

Learned Counsel for the Appellants contended that PW-2 has been pressed into service by PW-1 using his power and influence and that these articles were shown to the witnesses even prior and that she has given the evidence before Court as tutored by the police. The witness has categorically denied the suggestion put to her.

A careful examination of PW-2 would show that in the cross examination what was disputed by the accused was that it would not be possible for her to identify the Material Objects Viz., MO-8 etc. and not that her claim that she worked in the house of the accused. In this regard, the answers given by both the accused to the questions put to them u/s 313 Code of Criminal Procedure would be very relevant.

The first accused by way of answer to questions Nos. 33, 35 and 40 has categorically admitted that PW-2 was working in their house and that she used to dry the washed clothes in the washing machine. However, he would say that he did not remember as to when she stopped working. A-2 also gave similar answer to the question put to her Viz., Question No. 33 From the above materials, it is clear that PW-2 was working in the house of the accused for sometime before the occurrence and that she also used to dry the clothes of the inmates of that house and that being so, there should have been no difficulty for PW-2 to identify It has also to be remembered that in that house apart from A2, who was aged 52 years on the date of examination before Court, only the deceased was there, who was aged about 27 years on the date of death. Hence, there should be no difficulty for PW-2 to identify MO-8 jatti.

PW-4 is also a resident of Pondicherry, working in the house of PW-1. According to her, whenever servant maid working in the house of the accused went on leave, she used to be called for doing household works in the family of the accused and about three days before the occurrence, she went to the house of the accused as servant maid and she in fact worked till 14/7/1999. She has also deposed that MO-8 is that of the deceased. The suggestion that has been put to the witness is that she never worked in the house of the accused and that only at the instance of PW-1 and the police, she has been tutored to give false evidence.

We do not find any reason to reject the testimony of PW-4. In fact, we go one step further and observe that even if the testimony of PW-4 is eschewed, still we have the testimony of PW-2 which we have already held as trustworthy and acceptable.

To sum up, as far as this circumstance is concerned, we hold that the recoveries made pursuant to the statement of the accused (Ex.P.20) would be in the nature of corroboration to the case put forward by the prosecution through PW-3 as regards the motive for the first accused and the recoveries in particular, the jatties belonging to the deceased and the photographs of the deceased that A-1 had a passionate sinful desire to rape his sister-in-law and thereafter to commit suicide.

In this context, we may refer to the ruling in Kundula Subramanyam v. State of A.P. 1993 SCC (Crl) 655 the Supreme Court ruled thus.

In a case based on circumstantial evidence, motive assumes great significance as its existence is an enlightening factor in a process of presumptive reasoning.

CONDUCT OF THE ACCUSED.

As narrated earlier, admittedly, both the accused, deceased, brother and father of the accused were all residing in the house viz., Door No. 47, St. Louis Street, Pondicherry. It is also admitted that on the relevant date, the father of the accused was taking treatment in the Ashram Nursing Home and on the fateful night viz., 14/15.7.1999, the elder brother of the first accused by name Ravi Shall was with the father in the Nursing Home.

According to the first accused, shortly after midnight about 00.45 hours on 15.7.1999. he woke up by hearing some screaming noise and rushed to the deceased''s room from where the noise came and saw that out of the two doors of that room, one was found opened and he rushed inside and saw the deceased in the pool of blood and at that time, he was stabbed on his stomach and on bending forward he was again stabbed on his right neck by an unknown intruder, who was in the room then. The accused saw the deceased gasping for breath and immediately rushed to the room in which his mother was sleeping and woke her up and both rushed to the deceased''s room. While the second accused attended to the deceased, first accused came downstairs to his office room to find out the telephone number and from where he rang up to Vishvabandu to get the ambulance. As his attempts to get his brother over telephone failed, he changed his cloths and went to the Ashram hospital in his two wheeler not minding that he had sustained bleeding injuries. In the Ashram, according to the first accused, he rang the calling bell and when the watchman opened the door, he told the watchman that an emergency case would come. When the gate was opened, he rushed to see his brother Ravi Shah, to whom he narrated what all happened and thereafter both of them came back home. By that time, the Ashram people were there including Dr. Dilip Dutta. The deceased was taken in a carpet and brought down from the first floor and she was taken to the hospital in the ambulance which arrived by then. The first accused, Ravi Shall and others also went in that ambulance. The deceased died shortly about 10/15 minutes after arriving at the hospital and according to the first accused, after sometime. Inspector of Police Ramalingam came there and he was asked to write down about the intruder''s coming and attacking the deceased and himself. According to him, he was operated and discharged on 20.7.1999 and immediately thereafter he was arrested and taken to the police station. This is the case as spoken to by the first accused in his statement in the conclusion of questioning u/s 313 of Code of Criminal Procedure.

We have the evidence of PWs. 12 and 13 who are the Ashram activities (but not residing in the Ashram), the evidence of PW-8 staff nurse in the Ashram and PW-9, the security man in the Ashram to speak about the sequence of events following the telephone call from the first accused to Vishabandu. Vishvabandu received a telephone call on the night of 14/15.7.1999. Thereafter, he went to PW-12 Rajkumar Panda, the Physical Instructor in the Ashram, who resides at Door No. 20 in the same street where the accused has a house and where the occurrence took place i.e., St. Louis street, Pondicherry. Vishvabandu informed PW-12, his having received a telephone call from the first accused that his (A-1) house was under attack. PW-12 then asked Vishwabandu to call Vishveswaran, who stays a few meters away and informed him. Thereafter, PW-12 and Vishvabandu went by a car followed by Visveswaran in his two-wheeler.

PW-9 Jayaraman was the Security in the Aurobindo Ashram, Pondicheery. On the night of 14.7.1999, at about 1.00 am, A-1 Kamal Shall came and pressed the bell and PW-9 went near the door and saw through the gap that A-1 was standing outside (for the purpose of understanding it has to be stated that A-1 after talking to Vishvabandu over telephone from his residence, came over to Ashram Nursing Home). When PW-9 enquired, A-1 replied that an emergency patient had come and asked him to bring the wheel chair. PW-9 thereafter informed the staff nurse in the upstairs and took the gate key from the nurse and thereafter brought the wheel chair and opened the gate. A-1 straight went to the upstairs and met Ravi Shah and after sometime, they came back and both of them left in two separate two-wheelers. PW-8 has also spoken to the fact that at about 1.00 am on 14.7.1999, the calling bell was constantly ringing and that the watchman PW-9 came and told her and other staff members that a patient had come, whereupon they handed over the key to the watchman, but however only the first accused Kamal Shall came and he did not speak to them and he went to his father''s room and brought his brother Ravi Shah and they came down discussing something and thereafter both of them left by two two-wheelers. PW-9 also noticed blood stains on the banian of the first accused. When questioned as to what happened, the first accused said that an emergency case would come. They waited for the emergency case to come, but however, no patient was brought.

PW-12 Rajkumar Panda and Vishvabandu, who came to the house of the accused saw the door of the house was opened and noticed blood stains. Vishvabandu alone went upstairs and PW-12 remained in the ground floor. Vishvabandu came back from me first floor and informed him that me deceased was in a bad condition. Vishvabandu saying that he will go and bring Dr. Dutta, left by car and PW-12 was standing near me entrance door.

Vishveswaran, who left his house straightway went to PW-13''s house and asked him to inform me police. Accordingly PW-13 informed me Police of Grand Bazaar Police Station by telephone. At me residence of the accused, PW-12 and Visveswaran were present when Dr. Dutta arrived with Vishvabandu. Even before Dr. Dutta was brought to the house of the accused Accused 1 and 2 had arrived there. Finding that the police had not come, PW-12 went to the house of PW-10, who resides at No. 43, Saint Louis Street, Pondicheery and rang up to the Police.

The learned Counsel for the Appellant contended that the first accused, who on hearing the screaming noise went to the room of the deceased, where he was attacked by the intruders with a deadly weapon and that he sustained bleeding injuries. According to the learned Counsel, first accused on seeing that the deceased was gasping without minding the bleeding injuries inflicted on him, rushed to the room of the second accused, woke her up and after asking her to attend the deceased, went to the ground floor Computer room to get the ambulance. The contention of the Appellant is that the first accused had to go to ground floor in spite of the fact-that a telephone is available in the room of second accused is, since he had to find out the telephone number of Visvabandu from the telephone book maintained by him, which was in the Computer room. It is further argued that the first accused who was anxious to do the best to the deceased, thought it fit to inform his elder brother Ravi Shah, being the husband of the deceased and whom he thought should be informed immediately. As his attemps to get Ravi Shah over telephone failed, not minding the serious injuries he sustained, went to the Ashram Nursing Home to meet his brother after changing his clothes. As soon as the ambulance came, the deceased was taken to the hospital and both the first accused and his brother also went along with the deceased to the hospital along with the other Ashram people. To sum up, the learned Counsel for the Appellant contended that the first accused did everything, which he thought necessary to save the deceased and one should not forget that the first accused who was seriously injured at that time was acting under great tension. The conduct of the first accused should not be compared with the conduct of a normal person, who acts in a cool and calm atmosphere. That apart, as to how a person will act in a given circumstance, nothing can be said with certainty and that it depends upon each and every individual. In support of his contention, the learned Counsel for the Appellant placed reliance on the ruling reported in Tanviben Pankaj Kumar Divetia Vs. State of Gujarat, .

Per contra, the learned Special Public Prosecutor with reference to the materials available on record, pointed out various aspects about the conduct of the first accused in his endeavour to persuade this Court to demonstrate that the conduct of the first accused would speak for itself and the same would be in the nature of one of the chain/important circumstance which would point towards the guilty of the accused, which we enumerate hereunder:

(a) The family of the accused was carrying on a business in Pondicheery and they own a house viz., Door No. 47, Saint Louis Street. Pondicherry. As per the evidence of PW-15, a person working in telephone department, there are two telephones, one in the ground floor and the another in the first floor and the telephone numbers being 334978 and 223672. There is no dispute that the family owned a Flat Car and two two-wheelers. The first accused even on the date of occurrence was in possession of a valid driving licence. The above facts have been categorically admitted by the accused, when he was questioned u/s 313 Code of Criminal Procedure (Question No. 26). It is not as if that the said Fiat Car was not in running condition. That being so, if really the first accused wanted to give immediate medical attention to the deceased, he could have instead of himself going in a scooter to the Ashram, with the assistance of the second accused, taken the deceased to the Government Hospital or even to the Ashram Nursing Home assuming for a moment that there is proper and enough medical facility.

(b) Admittedly, the Government Hospital is about 500 metres away from the house of the accused and the Police Station is about 700 metres away. It is not known as to why the first accused failed to take the deceased to the Government Hospital.

(c) According to the accused, though there is a telephone in the room of the second accused in the first floor, he came down to the ground floor for getting the telephone number of Vishvabandu who was close to Dr. Dutta and would get ambulance. MO-27 is the telephone book recovered from the computer room in the first floor under Ex. P-22. In fact, the telephone book was also blood stained. The learned Public Prosecutor pointed out that in the telephone book, the telephone numbers of Dr. Dutta, Superintendent of Police and Police station are very much available. Leaving all these, the conduct on the part of the first accused to contact Visvabandu who admittedly was not there in the Ashram Nursing Home and who was only in his house, would point out that his conduct was not normal. Instead of contacting Visvabandu, who according to the first accused is close to Dr. Dutta, he could have, in an emergency like that, directly contacted Dr. Dutta.

(d) According to the first accused, when he reached the room of the deceased, he saw her lying down in a pool of blood and attacked by the intrudes. It is surprising he did not raise any alaram. It cannot be said that he was so badly hurt that he could not even cry for help as very shortly thereafter even according to him, he himself drove the scooter to go to Ashram Nurisng Home.

(e) Yet another conduct on the part of the first accused would also reflect his mala fides. PW-1 is brother of the deceased. He resides in me same town. As the closest relative of the deceased, the first accused should have informed him as well.

(f) According to PW-9, the security man in the Ashram, on the night of 14/15/7/1999, on hearing the calling bell noise he went near the gate and saw A-1 standing outside and when he asked him, A-1 replied that an emergency patient had come and asked him to bring the wheel chair. This information PW-9 conveyed to the staff nurse PW-8, who was in the first floor at that time along with other staff members and from whom he got the key of the gate. Both these witnesses PWs.8 and 9 speak to that effect and they have also deposed that when the gate was opened only A-1 came and there was no patient. This circumstance by itself arise serious doubt and the only reason as to why A-1 uttered falsehood should be that he did not want to disclose the true facts as otherwise he could have plainly told them that the deceased and himself were attacked by an intruder. Further only to persuade the Security man PW-9 to open the door the first accused had told PW-9 that a patient had come.

(g) Again, A-1 when he went to the Ashram did not make any attempt to contact the Doctors available there and take them to his house. Above all, he could have at least taken some nurse (i.e.,) PW-8 or others, who were readily available at least to give first aid or to do whatever possible. The first accused and his brother cannot be heard to say that it did not strike them. Further more, both these witness PWs.8 and 9 deposed that A-1 and his brother were discussing while coming from the 1st floor and simply said that an emergency case would come. One, very important aspect to be noted is PWs.8 and 9 have not been cross examined by the accused on any of the aspects spoken by them.

(h) As could be seen from the evidence of PW-9, there is Police Booth with 24 hours service very close to the Ashram. A-1 not only did not contact the police from his residence but also even after coming all the way to the Ashram, did not taken any step to inform the Police. The whole case of A-1 is that he contacted Visvabandu and asked him to bring the ambulance. But reading of the evidence of PW-12 would clearly show that Visvabandu came to his house in a Fiat car and both of them proceeded to the house of the accused. In the statement given by the accused while questioning u/s 313 of Code of Criminal Procedure he stated that he contacted Visvabandu and he was close to Dr. Dutta. Even assuming that Statement is true, it would only imply that Visvabandu would bring Dr. Dutta to attend the deceased. But as could be seen from the evidence of PW-12, only he along with Visvabandu went to the house of the deceased and Dr. Dutta came much later.

We do see considerable force in the submissions of the learned Public Prosecutor. We also note the following:

(a) At home, MOs.3 and 4 Nighties of the deceased and second accused respectively and MO-5 Petty coat of the deceased (all blood stained) were found lying in the room of the first accused. This would show that only the accused 1 and 2 who were present at the house should have removed the blood stained clothes of the deceased viz., MOs.3 and 5 and put on the deceased different clothes. This change of clothes by A-1 and A2 for the deceased is yet another aspect which the Court has to take note of in the given facts and circumstances.

(b) PW-l is the brother of the deceased while PW-11 is the attestor with regard to the seizure on 15.7.1999 and also to Ex.P6 observation mahazar. Both these witnesses have categorically stated that they were able to observe that the place appeared to have been washed. The learned Counsel for the Appellant contended that this part of the prosecution case, on the face of it is false because in the observation mahazar Ex.P6 nothing has been noted to that effect. According to him, PW-1 is none else than the brother of the deceased and in fact the other prosecution witnesses have not spoken to about the presence of PW-1 at the house on 15.7.1999. As far as PW-11 is concerned, according to the Appellant he deposed falsely as he is working as manager in PW-1''s brother''s concern and naturally he had to oblige PW-1.

(c) The learned Counsel appearing for the State contended that even eschewing for a moment the evidence of PW-1 in this regard, the evidence of PW-11 is worthy of acceptance. We have carefully examined the evidence of PW-11 and we are of the view that he has deposed only what he observed on 15-7-1999. There is nothing in the cross-examination which would persuade this Court to come to the conclusion that he has deposed to the dictate of the Police and to oblige PW-1.

(d) The learned Special Public Prosecutor contended that even assuming that this fact was not told by this witness when their statements were recorded. Court should not come to the conclusion that the witnesses are deposing falsely and that further the Police Officers while investigating the case generally record summary of statement which appear to them relevant. On that date, the case that was projected by the accused was that the deceased himself was attacked by the intruders. That being so, the Investigating Officer would not have thought that washing the floor would be an aspect which he should have noted down in the observation maliazar. The learned Counsel at this juncture drew the attention of this Court of the ruling reported in Tahsildar Singh and Another Vs. The State of Uttar Pradesh, wherein the Supreme Court in paragraph 16 ruled as under:

The object of the main section as the history of its legislation shows and the decided case indicate is to impose a general bar against the use of statement made before the police and the enacting clause in clear terms says that no statement made by any person to a police officer or any record thereof, or any part of such statement or record be used for any purpose. The words are clear and unambiguous. The proviso engrafts an exception on the general prohibition and that is, the said statement in writing may be used to contradict a witness in the manner provided by Section145 of the Evidence Act. We have already noticed from the history of the section that the enacting clause was mainly intended to protect the interests of accused. At the state of investigation, statements of witnesses are taken in a haphazard manner. The Police-Officer in the course of his investigation finds himself more often in the midst of an excited crowd and babel of voices raised all round. In such an atmosphere, unlike that in a Court of law, he is expected to hear the statements of witnesses and record separately the statement of each one of them. Generally he records only a summary of the statements which appear to him to be relevant. These statements are, therefore, only a summary of what a witness says and very often perfunctory. Indeed, in view of the aforesaid facts, there is a statutory prohibition against police officers taking the signature of the person making the statement, indicating thereby that the statement is not intended to be binding on the witness or an assurance by him that it is a correct statement.

(emphasis supplied)

(e) PW-7 is the Assistant Sub-Inspector of Police, in-charge of Police control room, Pondicherry during the relevant time. He has deposed, at 23.55 hours, a telephone call came from one Ashram person, name not told, and he asked whether he is a policewala. But however, he did not speak further and was holding the receiver and the said witness PW-7 could hear a lady''s voice in an alarming manner for few minutes. Immediately thereafter, the telephone was disconnected. Ex.P-4 is the relevant entry in the general diary maintained by the police Control room on 14.7.1999.

The learned Counsel for the Appellant contended that the said document Ex.P-4 has been created for the purpose of this case and really if the police control room entertained any doubt about the call, they should have informed the Investigating officer, whom they have been meeting almost daily and Ex.P-4 saw the light of the day only after several days. Above all, even according to Ex.P-4, the caller did not identify himself and hence it necessarily need not be A-1. The learned Counsel appearing for the State contended that if really the police authorities wanted to create such a record, nothing would have prevented them from noting something more to strengthen the case of the prosecution. We do not see any reason as to why the police authorities should indulge in creating records/evidence.

Two rulings of the Supreme Court can be referred to at this juncture:

In Mangat Rai Vs. State of Punjab, , the Supreme Court held that the conduct of the accused in not immediately informing the relation of the deceased about the death of the deceased is a clinching circumstance pointing an accusing finger to the accused.

In Kundula Bala Subramanyam v. State of A.P. 1993 SCC (Crl) 655 the Supreme Court was considering a case where the inmates kept quiet without doing anything when the deceased was in flames and observed thus.

None of the two Appellants or the father-in-law made any attempt whatsoever to extinguish the fire and save the deceased. They raised no alarm.

(Emphasis supplied)

After due consideration, we are of the opinion that the conduct of the accused as discussed above at the relevant time would form a link in the chain and go a long way against the accused.

RECOVERIES PURSUANT TO THE STATEMENTS MADE BY THE ACCUSED.

The case of the prosecution is that the first accused when interrogated on 20.7.1999 after his arrest, gave a voluntary confession statement in the presence of PW-20 P.V. Sankaran and one Lakshminarayanan. The admissible portion of the said statement has been marked as Ex.P-20. In the said statement he had stated that he had kept the Ashram Telephone Directory in his office room in his house along with the records which he only knew; the knife he used for stabbing the deceased which he had thrown in the building of museum next to his house; remaining pieces of brick used by him to attack the deceased; photographs of the deceased Parvathi Shah; her two jatties along with some Ashram papers kept in a folder and hidden in his room and exclusively known to him and had also kept secretly pornographic materials in his room and that if he is taken to the above places, he will point out where all those material objects exclusively known to him have been concealed. This statement had been attested by PW-20 and another.

PW-24 Inspector of police went to the house of the accused and arrested the second accused and she was taken to the Grand Bazaar police station at about 10.00 a.m. The second accused gave a voluntary confession statement in the presence of PW-20 and another and the same was recorded and the admissible portion of the said statement is marked as Ex.P-21. In Ex.P-21, A-2 has stated that she has concealed the blood stained panty MO-7 of the deceased by throwing it by the side of the wall and if she is taken, she would point out the place of concealment of panties and produce the same. PW-24 then summoned for PW-22 photographer and PW-23 Finger print Expert to be present at the residence of the accused and thereafter he proceeded to the house of the accused along with the accused and two witnesses PW-20 and Lakshminarayanan.

According to PW-24, at the residence, A-1 took him and the witnesses to the terrace of the house and pointed out the broken brick MO-29, which was seized. A-1 then took them to the computer room and produced one folder MO-20 containing one white colour panty MO-8, red colour panty with ''sungu'' MO-21, rose colour handkerchief MO-22, one condom packet MO-24, three photographs of the deceased Parvathy Shall MO-23, one sex book titled ''Ultimate Passion'' MO-25. At the ground floor A-1 produced essential phone directory with blood stains on the first and second pages MO-27. All these articles were seized under property search and seizure from Ex.P-22 attested by PW-20 and Lakshminarayanan.

A-2 took the prosecution parry and also the witnesses to the place in between door No. 47 and new museum northern side and pointed out the blood stained white panty MO-7 hanging from cement jolly works in the garage wall and the same was seized under mahazar Ex.P-24 attested by the witnesses.

Thereafter. A-1 took them to the closed window of the museum wall and pointed out the knife MO-9, which was found struck. The same was recovered under EX.P-23 mahazar in which the same witnesses attested. During the seizure, photos were also taken by PW-22 photographer.

The learned Counsel for the Appellant contended that the claim of the prosecution that accused 1 and 2 made voluntary confession statements and pursuant to that they took the police party and the witnesses and produced the material objects from the house of the accused and nearby is nothing but a make belief story and the so called recoveries cannot be accepted for the following reasons.

(a) Even according to PW-24, A-1 Kanial Shall signed the statement and thereafter PW-20 and Lakshminarayanan countersigned. But whereas, the one produced before the court has not been signed by Kanial Shah.

(b) Even according to the prosecution witnesses, a thorough search of the house of the accused was made by the police personnel numbering more than 10 and that being so, it would be rather totally unacceptable that they failed to spot the material objects, in particular MOs. 7, 8, 9, 21 to 26, 27 and 29, that too when they were recovered after five days.

(c) The claim of the prosecution that MO-9 was recovered pursuant to the voluntary confession statement made by A-1 since according to A-1 he threw MO-9 and he would not, have known where exactly the knife landed. To say that the knife got struck in between the window door and wall, cannot at all be believed.

(d) The claim that the prosecution in spite of their search did not recover MO-7 viz. Jatty belonging to the deceased which was hanging in the cement joliy work in the garage wall on the face of it looks strange and improbable.

(e) Similarly, the recovery of MO-29 pursuant to A-1 pointing out, is not beyond doubt.

(f) Even assuming MO-7, 9 and 29 were recovered, inasmuch as public had access to it, the same cannot be said to have been discovered pursuant to the statement made by the accused.

The first accused was discharged from the hospital on 20.7.1999 and when he came out of the hospital, he was arrested by PW-24 at about 8.00 a.m. He was then brought to the Grand Bazaar Police Station. PW-24 interrogated him in the presence of PW-20 and one Lakshminarayanan. The first accused made a confession statement voluntarily in English and the said statement had been attested by the above two witnesses viz., PW-20 and Lakshminarayanan. We have already in the earlier part of this judgment considered and held that PW-20 is a reliable witness and his testimony is worthy of acceptance. We have also pointed out that there was no reason for him to depose falsely before the Court. We have also accepted the reason given by the prosecution as to how he came to be present before the police station at that time.

The second accused was arrested on the same day viz., on 20.7.1999 at about 10.00 a.m. at her house and she was brought to the Police Station. She also gave a voluntary confession statement. This statement viz., Ex.P-21 again has been attested by PW-20 and Lakshminarayanan.

We are of the view that the plea of the defence that both these accused did not make any such voluntary statement is far from truth.

PW-20, in his evidence before the Court deposed that the statement of the first accused was typed by police personnel and after such recording A-1 Kamal Shall was asked to go through the contents and he signed therein and thereafter himself and Lakshminarayanan attested the same. According to the learned Counsel for the Appellant the present statement of A-1 produced before the Court does not contain the signature of A-1 and in view of that the Court has to reject the said document and in rum Ex.P-20 viz., the admissible portion one thing has to be remembered very clearly (i.e.,) that first accused has not stated anywhere having signed any statement in the police station or elsewhere. When the first accused was questioned u/s 313 Code of Criminal Procedure a specific question was put to him whether he would like to say anything about the case. He has given a lengthy statement running to three pages, but he has not mentioned therein that he had signed any statement or he was compelled to sign any statement either in the police station or anywhere. There is no doubt that PW-20 has wrongly stated before the Court that the confession statement was signed by A-1, which we feel was made because of some forgetfulness. The defence cannot take advantage of the same. But inasmuch as A-1 has not pleaded anywhere or suggested to anyone that a statement was prepared in which he also signed, simply because PW-20 has made such statement which can only be by a bona fide mistake, the case of the prosecution would not fail.

MOs.8, 27 and 29 were recovered pursuant to the statement made by the first accused under mahazar Ex.P-22 and MO-9 under mahazar Ex.P-24. Likewise, MO-7 was recovered pursuant to the statement made by A-2 under Ex.P-23. The learned Counsel for the Appellant contended that according to the prosecution witnesses viz. PWs. 1, 11, 22 and 24, the house was searched thoroughly and that being so, virtually after five days after the occurrence, the above referred material objects were not noticed and seized and only pursuant to the confession statement of A-1 and A-2 the same were seized, cannot be believed. MO-9 is the knife which was recovered under Ex.P-24 from the museum premises i.e. it was found embedded in between the door frame and the window. Or in other words, it was found struck in between the window door and the window.

The contention of the Appellant is three fold. According to the confession statement of the first accused that he threw the knife and that being so he himself would not have been aware as to where exactly the knife landed. Secondly, when the police personnel searched thoroughly in and around the house of the accused, they would have certainly located the same had the knife was really there in that place as claimed by PW-24.

As far as the first submission is concerned, it has to be remembered that it was the accused who threw the knife and hence he only knew as to where exactly he was standing when he threw the knife and in which direction. Very relevant also the factors such as the force with which he threw (i.e.) whether he threw casually or with great force. Even though A-1 might not have known as to where exactly the knife landed, certainly without much difficulty he should be the best person to locate the same as he knew the direction in which and the force with which he threw the knife. By accident, it has landed and got embedded between the door frame and window and first accused located that within no time, which was not visible for others. That being so, we do not find anything improbable and unnatural in that.

The second accused took the police party and the witnesses and in between Door No. 47 and new museum pointed out the jatty hanging from the cement jolly work in the garage wall and the same was seized at 14.00 hours under Ex.P23 attested by the witnesses. It might be that when the search was made, this would not have been noticed and detected.

MO-29 piece of brick was recovered from the terrace of the residence of the accused. Though the Police personnel might have inspected the house including the terrace, they would not have noticed and known that the accused would have used the said material object for the purpose of commission of the crime as initially the accused put forward a case of intruder causing injuries to the deceased and first accused.

MO-26 Folder containing MOs.8. 21 to 25, MO-27 is the telephone directory were also recovered and about which we have already referred to in the earlier part of the judgment. All these material objects were secretly kept in his room and computer room respectively. There is no surprise that these were not noticed by the Police officials. That being so. to say that Police officials already made thorough search, the case of the prosecution about recovery is totally unacceptable cannot be sustained.

It has to be pointed out that there is no suggestion to PW-22 Photographer and PW-23 Finger Print Expert that the places from where MO-7 and 9 were recovered were ordinarily visible.

With regard to recovery of MO-9 knife pursuant to the confession statement made by A-1 and MO-7 pursuant to the confession statement made by A-2, an argument has been advanced to the effect that the respective places from where they were recovered, were very much accessible to the public and it may not be said that the same were discovered pursuant to the statement of the accused.

According to the prosecution, on the first accused pointing out MO-9 knife which was found to be embedded in between the door frame of the window in the Museum premises, the same was recovered.

Similarly, on A-2 pointing out MO-7 blood stained panty of the deceased, the same was recovered from the cement jolly works in the garage wall.

On examination of the materials available on record, though it can be said that they were recovered from the places accessible to others, it cannot be said that it was ordinarily visible to others. That being so, we do not find any substance in this submission and in this regard, we point out the Ruling of the Supreme Court reported in 1999 SCC (Cri) 539 [State of H.P. v. Jeet Singh], wherein the Supreme Court has ruled thus:

There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence u/s 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not then it is immaterial that the concealed place is accessible to others.

It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it Plukuri Kottaya v. Emperor AIR 1947 PC 65. The said ratio has received unreserved approval of this Court in successive decisions. Jaffar Hussain Dastagir Vs. State of Maharashtra, , K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, , Earabhadrappa v. State of Karnataka 1983 [2] SCC 330, Shamshul Kanwar Vs. State of U.P., , State of Rajasthan Vs. Bhup Singh, .

Consequently we hold that the prosecution has proved the recovery of material objects as detailed above pursuant to the confession statements made by both the accused.

FINGER PRINTS ON MO-9 KNIFE

The case of the prosecution is that the first accused who was discharged from the hospital was arrested by PW-24 at about 8.00 a.m. on 20.7.1999 in front of the General Hospital, Pondicheery and brought to Grand Bazaar Police Station. He was interrogated by the Inspector of Police PW-24 in the presence of PW-20 and one Lakshminarayanan. The first accused made a statement voluntarily and wherein he stated that he had thrown the knife MO-9 on the building of the new Museum. He also made some more admissible statements, about which we are not presently concerned under this heading. The admissible portion of the statement has been marked as Ex.P-20. According to the prosecution, A-1 took the prosecution party to the closed window wall of the Museum and pointed out the MO-9 knife which was struck and the same was recovered by the Inspector under Ex.P-23 mahazaf. PW-23 the Finger Print Expert, designated as Director of Finger Print Bureau, Pondicherry was also present when the first accused pointed out MO-9 knife which was inserted between the window door and the wall. When PW-23 took out the knife and examined for finger print clues, he traced and developed two chance prints on the knife handle and the same were marked as ''R'' and ''R1'' and were photographed.

The finger and plam prints of the deceased, first accused and second accused were taken for comparison with the chance finger prints developed from MO-9 knife. Ex.P-80 is the legative of the specimen right palm print of A-1 Kamal Shall. On comparison, it was found that the chance prints found on MO-9 knife was identical (inter-digital area) with the finger prints of A-1 Kamal Shall. PW-23 sent a report Ex.P-76 to the Chief Judicial Magistrate through the Director. Crime Records Bureau, Pondicherry. On 18.9.1999, PW-23 prepared a certificate of Finger Print Examination in respect of the identification along with photographed enlargements, marking the points of identity and the same was submitted to the Chief Judicial Magistrate. Ex.P-78 is the certificate of Finger Print Examination while Ex.P-79 is the photo enlargments marking the points of identity. Ex.P-80 is the negative of specimen right palm print of A-1 while Ex.P-81 is the corresponding positive prints of Ex.P-80. According to PW-23, the 10-ridge characteristics which are seen in the questioned print ''R'' (Ex.P-70) are also seen, in the specimen print ''S'' (Ex.P82) in their identical sequence. PW-23 also stated that the chance prints are developed with while powder and hence the ridges will appear as white line, whereas the specimen print was taken with black thumb impression ink and hence the ridges will appear as black. He has marked the 10 points of identity in the photograph enlargement marked as Ex.P-79 and P-81.

According to the prosecution, the first accused after committing the offence of rape and murder on the deceased Parvathy Shah, stabbed himself with the said knife viz., MO-9 and he threw it to cancel the same.

The learned Counsel for the Appellant advanced the following arguments in his endeavour to convince this Court that the testimonies of PWs.23 and 24 and other exhibits marked touching this aspect of this case, are not acceptable.

(a) The finger and palm prints were admittedly not taken before the Magistrate or under the orders, of Magistrate in accordance with Section 5 of the Identification of Prisoners Act and as such this part of the prosecution case has to be rejected.

(b) In Ex.P-82 (Specimen right palm and finger print of A-1 Kamal Shah marked through PW-23), there is no mention as to whether the same was taken in the presence of the investigating officer and according to the noting in Ex.P-82, it was only the Head Constable who had taken them.

(c) Even though the Head Constable Danapal was cited as witness No. 54 in the charge sheet, he had not been examined in the Court.

The reading of the provisions of the Identification of Prisoners Act viz., Sections 4 and 5 would clearly show that there is no bar as such to take Finger Prints and Palm prints to be sent for comparison. The provisions are not to the effect that the same are not admissible. At best, it can only be said that if the finger and palm prints are taken in the presence of Magistrate or pursuant to the orders'' of the Magistrate, there would be no scope for the accused to question the genuineness of the same or at best, there was irregularity in taking palm print or finger print.

Now let us proceed to refer to the two rulings relied on by the learned Counsel for the Appellant.

(i) In Mahmood Vs. State of U.P., , the Supreme Court was considering a case of circumstantial evidence and in that case, the solitary piece of circumstantial evidence of which the prosecution had staked their case was the finger prints of the accused that were found on the handle of the Gandasa, which was found lying near the dead body at the scene of occurrence. In that case, the Complainant as PW-1 himself had admitted that when he first saw the Gandasa lying near the dead body, its wooden handle was dirty on 5.1.1967, but later on when this weapon was shown to the witness in the court, the wooden part of the handle was clean and rest dirty and from that an inference can certainly be drawn that the wooden portion could have been cleaned and got the finger prints of the accused on it. Only in those circumstances, the Supreme Court observed as under.

Furthermore, the specimen finger-prints of the Appellant were not taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. This is another suspicious feature of the conduct of investigation....

(ii) In the other ruling reported in Mohd. Aman, Babu Khan and another Vs. State of Rajasthan, , the Court was considering both the finger print evidence as well as foot print evidence. As far as the finger print evidence is concerned, the Court observed thus,

...Even though the specimen finger-prints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that u/s 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate....

(Emphasis supplied)

It cannot be said that the above rulings would help the Appellants in any way. From the extracted portion of the judgments of the Supreme Court, it is clear, the legal position appears to be that it is not as if that the investigating officer is barred from taking the finger prints and palm prints and it is not as if the same are not admissible.

From the perusal of Ex.P-82, of course it would show that the finger-print and palm-prints were taken by the Head Constable Danapal and he had not been examined before the Court. PW-24 has categorically stated in his evidence that the same was taken in his presence though that had not been mentioned in the said document. At this juncture, we would like to refer to one question put to the first accused when he was examined u/s 313 Code of Criminal Procedure which read thus,

PW-24 has further deposed that on 24.7.99, he sent a letter to PW-23 enclosing the finger and palm print of deceased Parvati Shah and you A-1 Kamal Shan and A-2 Padmavathi Shah taken in his presence, for comparison with the chance finger prints developed from the knife MO-9. What do you say?

Answer: It is false. He has never taken any finger prints/palm prints nor was it taken in his presence. It was taken in the Police Station. I.G., S.S.P., were there. PW-23 was not there.

From the clear admission by the accused it is clear, his finger prints and palm prints were taken in the presence on high police officials. Of course, in me said answer first accused has stated that PW-23 was not there. When the finger prints and palm prints were taken in the presence of such high police officials, this Court does not propose to entertain any doubt on the ground that the, same was not obtained in the presence of the Magistrate or pursuant to the order of the Magistrate.

In this context, we would like to point out that it is not the case of the first accused that the finger prints and palm prints were taken on two occasion one is the presence of I.G. and S.S.P. and another by the Head Constable. Danapal.

With regard to the next contention that serious doubt would arise because of non-examination of Head Constable Danapal, we are only inclined to reject the same as already pointed out, finger and palm prints were taken only once and that too in the presence of high police officials.

To sum up, we are clearly of the opinion that there is no doubt that MO-9 had palm prints of the first accused Kamal Shah.

INTRUDER THEORY

The house of the accused is at Door No. 47, St. Louis Road, Pondicherry. The adjoining houses bear Door Nos. 43 and 45.

Learned Counsel drew the attention of this Court and to the testimony of PWs. 10, 11, 22 and 24 in his endeavour to give a clear picture to this Court about the topography.

In substance, learned Counsel for the Appellants contented that it was not necessary that the intruder should have gained entry only through the Door in the ground floor but he could have gained it from the terrace. According to the learned Counsel, the evidence of PW-24, the Inspector of Police would show that there was only a wall dividing the terraces of the two houses at Door No. 43 and 45 and an intruder of the two houses at Nos. 43 and 45 and an intruder who reached terrace of Door No. 43 could have very well crossed the parapet wall and reached the terrace of Door No. 45. According to him, there are no materials whatsoever placed before court to show that at the relevant time i.e., in the night of 14/15/07/1999, the terrace door was closed from inside.

Learned Counsel in this context would point out the ruling of the Supreme Court reported in AIR 1987 SC 2193 (Tanviben Pankajkumar Divetia v. State of Gujarat), where the Supreme Court took note of the fact about the absence of materials to show that the door leading to the terrace was locked from inside and in fact acquitted the accused in that case.

True, that the terrace of the house bearing Door Nos. 43 and 45, according to the evidence of PW-24, the Investigating Officer, was separated only by a parapet wall.

The Investigating Officer has categorically stated that the parapet wall which separates the terrace of the house of the accused and Door No. 43 is 4 ft. in height and that the terrace of the house of the Door No. 43 is lower than the terrace of Door No. 45-47 by 4 feet and that from the terrace of Door No. 43, the top of parapet wall of the accused house is by about 8 ft. or in other words, for an intruder to reach the terrace of Door No. 43, he should climb 8 ft. to reach the parapet wall in Door No. 45.

The Investigating Officer in his evidence, has categorically stated that while he inspected the scene of occurrence on 15/7/1999, he found all the articles viz., two Godrej almirahs, chairs, cupboard, air-conditioner, bedroom door and toilet door to be intact and not tampered with in any manner and that further he could not see any sign of am third party or intruder meddling with any household articles in the scene of occurrence It has to be noted that on this the said officer has not been cross examined. The latches of the doors (i.e.) one in the ground floor leading to the street and the other to the terrace were found to be intact as spoken to by PW-24, the Inspector of Police. No valuables were missing from the house of the accused There can be no presumption that the door leading to the terrace should have been left open during that night.

The other aspect to be pointed out is that it is not as if the inmates in the house of the accused used to go to the terrace of the building for some reason or other and that there was a possibility that they could have by over sight failed to lock the door leading to the terrace from inside

In fact, eventhough the first accused has given a detailed statement running to three pages, no reference has been made as to how the intruder could have gained entry. Learned Counsel for the Appellant relied on the ruling of the Supreme Court reported in Tanviben Pankaj Kumar Divetia Vs. State of Gujarat, . The said ruling would not in any way help the case of the Appellants since in that case, an aged inmate, a lady, was an asthma patient and that she used to go to terrace in the evening to get good and pure air. In fact, in that case, the accused was not acquitted on that ground. But, because the Supreme Court entertained a serious doubt with regard to the injuries sustained by the accused and the infant child. The Apex Court took the view that a lady could not have sustained those injuries by self-infliction and certainly would not have harmed her own child that too an infant child.

Ex.P-3 is the complaint received by me Grand Bazaar Police Station at 00.45 hours on 15/7/1999. The Station Officer has noted down the contents of the telephone call from PW-13. He has noted down the contents of the message received as under:

Received phone call from one Punt (a) Purushothaman of Sree Aurobindo Ashram stating that one Parvathy Shan and one Kamal Shah were admitted in G.H. Pondicherry by sustaining injuries due to assault at No. 47. St. Louis Street. Poudicherry.

PW-13 Puru (a) Purushothaman in his evidence has stated that he was woken up by Vishveswar and informed that an incident of stabbing in A-1''s house had taken place and asked him to telephone. Ultimately what is to be noticed is from whom the message originated and certainly it was the first accused. It has to be noted that such stabbing was by an intruder was not mentioned.

The case of the first accused as put forward in his statement given by him u/s 313 Code of Criminal Procedure is that he was stabbed by one person. A1 admits having gone to the Hospital along with his brother, when the deceased was taken in the ambulance. He has also admitted that he was treated by a Doctor at the Hospital. It is not the case of the first accused that at that time he was semiconscious or mentally not alert. In fact, he has stated that he could not feel the pain much, though there was bleeding. PW-18 is the Doctor, who treated him in the Hospital. He has categorically deposed that A1 told him that he was stabbed by unknown persons at 00.45 hours on 15/7/1999. In fact, P-14 is the original copy of the wound certificate, wherein, at Column No. 7, the Doctor has noted that he was told that A-1 was stabbed by unknown persons. It is significant that the Doctor has not been cross examined on this aspect.

One other aspect also to be noted is that it is not as if the deceased had enemies and no valuables were missing from the house.

In fine, we only endeavour to point out that though he told to the Doctor that he was attacked by more than one person, now in the course of trial, the case projected by the first accused is that he was attacked by one person.

While in Ex.P-1 the first accused had mentioned that he tried to catch the intruder, in his statement given u/s 313 Code of Criminal Procedure he has not mentioned about his trying to catch the intruder.

The above reasons pointed out by us would clearly belie the plea of the defence that the deceased and first accused were attacked by an intruder We reject the INTRUDER THEORY projected by the Appellants.

Once we come to the conclusion that the accused has put forward a false plea, then it will also form an additional link to connect the accused with the crime.

In Kuldeep Singh and Ors. v. State of Rajasthan 2000 SC (Crl) 865, the Supreme Court held thus.

In the case of Swapan Patra v. State of West Bengal, (1999) 9 SCC 242 it has been held that it is a well-settled principle, that in a case of circumstantial evidence, when the accused offers an explanation and that explanation is found to be untrue then the same offers an additional link in the chain of circumstances to complete the chain. The same principle is reiterated in the case of State of Maharashtra v. Suresh (2000) SCC 471. In this case it has been held that a false answer offered by the accused when his attention was drawn to a circumstance renders that circumstance capable of inculpating him. It is held that in a situation like this a false answer can also be counted as providing "a missing link" for completing the chain.

The false answer given by Appellant 4 denying that she had left the Ramleela programme provides the additional link or a missing link in completing the chain of circumstances.

Also refer, (1) 1998 SCC (Crl) 1590 (Md. Mahiruddin v. State of Bihar); (2) 1999 SCC (Crl) 1153 (Swapan Patra v. State of W.B.); (3) 2000 SCC (Crl) 962 (Joseph v. State of Kerala); (4) 2001 SCC (Crl) 49 (State of U.P v. Hari Mohan and Ors.); (5) Tanviben Pankaj Kumar Divetia Vs. State of Gujarat, .

CHARGE u/s 376 IPC. PW-19 Dr. R. Balaraman in the Government Hospital, Pondicherry, conducted post mortem on the body of the deceased at 11.50 a.m. on 15.7.1999. Ex.P-16 is the post mortem certificate issued by him. The Doctor noted nine injuries. For the present discussion injury Nos. 7, 8 and 9 are relevant. The injuries are described by the Doctor as under:

Abrasion 0.5 cms over right upper eve-lid.

Bluish discolourisation of both upper eye-lids.

Abrasion 1 cm x 0.5 cm over upper lip right side.

In the post mortem certificate, as against the column 13(k), it is noted by the Doctor as under:

Genital Organs: Linear abrasion 0.5 cm over the posterior vaginal wall present. Uterus Normal size, Cavity empty Endometrium not in menstrual phase.

The Doctor when he was in the witness box was put a specific question for which the Doctor also answered We hereunder extract the question and answer.

Question by Special P.P:

The above mentioned injuries in Col.7, 8, 9 and 12(k) are suggestive of or indicate that the symptoms or appearance or injury would have been caused when a male is forcibly thrusting his penis in the vagina of the female (deceased) during forcible sexual intercourse?

Answer by witness:

It is possible

(Emphasis supplied)

(Note: Question refers to column 12(k) in post mortem certificate. In fact it should only be 13(k).

The learned Counsel for the Appellant pointing out the post mortem certificate issued on 15.7.1999 argued that on that day the Doctor only opined that the deceased died of shock and haemorrhage due to head injury, but however, on subsequent date without any new materials whatsoever in his final opinion dated 7.8.1999 had mentioned that evidence of sexual assault present. According to the learned Counsel, the Doctor has stated so only to oblige the Police.

The contention of the learned Counsel for the Appellant is that the presence of sperm or spermatozoa was not found on the vaginal swab and that completely falsifies the case of the prosecution. For the purpose of fully examining the charge, certain circumstances and also the conclusion arrived at by us hitherto has to be kept in mind. They are, (1) the first accused had a passionate sinful desire to rape the deceased as spoken to by PW3. The lust is evident from the folder-MO-26 recovered from his bed room, which contained two jatties of the deceased, three photographs of the deceased (in one photograph, the deceased was in swimming dress). (2) The recovery of MO-9, which contained the palm and finger prints of the first accused. (3) Falsity of the intruder theory. (4) No valuable articles in the house was missing and it is not the case of the defence that the deceased had enemies. (5) Admittedly no other male member was in the house on the fateful day. (6) Change of deceased''s dress and washing of the blood in the house. (7) The body of the deceased was also washed.

Let us take up the first contention. The post mortem certificate is Ex.P-16 dated 15.7.1999. The Doctor has also noted that the vicera, vacinal swab, blood soaked filter paper were sent for analysis. The Doctor received the analysis report dated 3.8.1999 and thereafter on 7.8.1999 gave his final report wherein he has mentioned that the evidence of sexual assault present. It is not as if, if the Doctor has not stated in his first report, he cannot say so in his second report even without new material. What is required is that the Doctor must base his opinion on some materials. Here the Doctor has clearly opined that the injuries noted by him viz., injuries 7, 8 and 9 when considered along with the fact that the deceased suffered linear abrasion 0.5 cm over the posterior vacinal wall would clearly indicate that such injuries could have been sustained when a male forcibly push his penis during forcible sexual intercourse. In fact, in a ruling reported in Ronny @ Ronald James Alwaris Etc. Vs. State Of Maharashtra, , a similar question arose and Supreme Court while considering that ruled as under:

It is submitted that this part of the evidence of PW-74 could not be given any weight as in the post-mortem certificate (Exh.278), he did not express any opinion about the sexual assault and that it was only in the statement given in Court that he spoke about the sexual assault. We are afraid, we cannot accede to this submission. This contention was not accepted by the trial Court as well as by the High Court. It is true that in Exh.278 no opinion is expressed about sexual attack but what the doctor had stated in Court was on the basis of the notes of post-mortem and the injuries already noted in Exh.278 (post-mortem certificate). So this cannot be said to be an afterthought.

Coming back to the present case, in fact, here the prosecution case is still stronger that the Doctor even before deposing in the Court, gave his opinion. Hence mere is no substance in the first submission made by the learned Counsel for the Appellant.

As far as the second submission i.e., absence of Spermatozoa or semen in the vaginal swab, it has to be pointed out that we have already held that the deceased''s clothes were changed and the body of the deceased was washed, and hence naturally the presence of spermatozoa or semen would not be found. In fact, the Supreme Court in the ruling reported in 1998 SCC (Crl) 751 (State of Tamil Nadu v. Suresh) held that the absence of spermatozoa or semen in the vaginal swab is no ground to reject the theory of case of rape.

We hold that the evidence available on record would clearly show that the 1st accused committed rape on the deceased.

INJURIES ON THE FIRST ACCUSED We have already referred to in detail the desire that the first accused had to rape the deceased and then to commit suicide. We have held that the Intruder theory put forward by the accused is false. The palm print and finger print of the first accused had been noticed in MO-9 knife. The said knife was recovered pursuant to the confessional statement made by the first accused. In this background, we have to examine the nature of the injuries sustained by the first accused.

PW-18 Dr. Senthamizhan Rene is the Doctor, who examined the first accused and treated him. Ex.P-15 is the wound certificate issued for A-1 by PW-18. He noticed the following injuries:

Stab wound abdomen 2.5. x 1.5 cm omentum protruding (margins clean cut).

Incised wound 2 x 1 cm right side of neck margins clean cut.

Duration of the injury fresh cause of the injury, where possible as concluded by examination of the patient by the medical Officer - Injury with sharp weapon.

The Doctor has opined that the injury is grievous in nature. PW-18 has categorically stated before the Court that the injuries of A-1 could have been self-inflicted. Though the Doctor has stated that he cannot say that the injuries cannot be both self-inflicted or homicidal, if we examine the case in the light of various conclusions we have already arrived at, the only conclusion can be that the injuries on the first accused are self-inflicted. The first accused had attempted to commit suicide.

We hold that the first accused is guilty u/s 309 I.P.C.

EXTRA JUDICIAL CONFESSION OF A-1 TO PW-5: The settled legal position is that an extrajudicial confession is a weak piece of evidence. Only if it is proved that it has passed the rigorous test on the touch stone of credibility by means of acceptable evidence with reference to its truthfulness and genuineness, it can be accepted safely relied and acted upon. So many aspects have to be carefully examined such as the circumstances under which confession is given, the person to whom it is given, the conduct of the accused thereafter and the conduct of the person to whom such confession was given. There can be no hard and fast rule as to how a person who has committed a brutal murder would act. But, any culprit would try to conceal it and that will be his normal conduct.

As far as the present case is concerned, according to the prosecution, A-1 made the extra judicial confession to PW-5. As could be seen from the evidence, PW-5 is a computer programmer. According to him, through PW-1 he came to know the first accused and Ravi Shall and he used to contact them and get small works done by them. On the date of funeral, according to PW-5, PW-1 told him that he suspected A-1 Kamal Shah in the commission of the crime PW-5 would depose that on 16/7/1999, he went to the General Hospital to meet A-1 but however he could not meet him as he was in the post-operative ward. However, on the next day, when A-1 was in the surgical ward, he was able to meet A-1 and to whom according to PW-5. A-1 wept and made a confession having committed the murder of the deceased.

Now, the question is as to whether the version as spoken to by PW-5 is true and can be safely relied on.

Learned Counsel for the accused pointed out that according to PW-5 he came out of the Male Surgical Ward after seeing A-1 and at that time two policemen who were present there caught hold of him and enquired him and one of them wrote down what all he had stated to them and obtained his signature. According to PW-5, he mentioned the same to the Police Officer at the Grand Bazaar Police Station on 17/7/1999. The prosecution has not produced the said statement signed by PW-5. That apart, the conduct of PW-5 in not informing this vital matter to his close friend PW-1 and his family is quite unnatural and hence it would not be safe to rely on his evidence. The statement of PW-5 which was recorded on 17/7/1999 was sent to court only on 2/8/1999. Learned Counsel also pointed out that the Investigating Officer had neither sent the statement of PW-5 to the Court immediately nor he had mentioned about it in application dated 20/7/1999, seeking remand or in the Alteration Report under Ex.P-87. The further contention raised by the learned Counsel for the Appellant is that in fact PW-24 also admitted in the cross-examination that he had not arrested A-1 Kamal Shah on 17/7/1999 itself on the basis of the statement of PW-5 and that he had not made any specific reference with reference to PW-5s statement pertaining to the extra judicial confession in his remand extension petition filed on 20/7/1999 or in Ex.P-87. A submission is also made that if in fact, PW-1 told PW-5 on the funeral day that he entertained suspicion on A-1 Kamal Shah it would only be natural for PW-5 to inform PW-1 about the extrajudicial confession of A-1 on the very same day i.e., on 17/7/1999. In fact, PW5 has admitted that he had not mentioned to PW-1 about it though he met him on 17/7/1999 and on 19th July 1999.

The reasons pointed out by the learned Counsel for the Appellant in his endeavour to persuade this Court to reject the theory of extra judicial confession are acceptable. Learned Counsel for the Appellant also relied on the rulings reported in 1999 SCC (Crl) 12 (Dwarkadas Gehanmal v. State of Gujarat), 1974 Crl.L.R.S.C. 472 (Jagta v. State of Haryana), 1993 [2] MWN [Crl.] 59 [Thiagarajan v. State] and 1999 SCC [Crl] 93 (Surendra Kaur v. State of Punjab). The said decisions would apply to the facts of this case. We have absolutely no hesitation to reject the case of the prosecution that extrajudicial confession was made by A-1 to A-5 when he met him in the Government Hospital on 17/7/1999.

CAUSING DISAPPEARANCE OF EVIDENCE OF OFFENCES:

As referred to earlier, briefly the case of me prosecution is that A-1 after causing vital injuries to the deceased and raping her, attempted to commit suicide by stabbing himself with MO-9 knife. A-1 thereafter along with his mother A-2 washed the blood in the scene of occurrence, washed the deceased and changed the clothes of the deceased and thus caused disappearance of the evidence. PW-1 is the brother of the deceased. After receiving phone call on the night of 14/15-7-99 at about 00.45 hours, he went to the house of the accused along with his brother. He has categorically deposed that outside the door, one constable was standing and at the foot steps. A-1 and Ravi Shall were standing. He went inside the house and found the blood stains and blood-stained foot steps on the steps and verandah. PW-1 further noticed that foot steps and verandah appeared to have been washed. He also testified before court that when he went inside the bed room of Parvathy Shah, he found Parvathy Shah placed on a woolen carpet in a lying posture. He deposed that he did not notice any blood stain and that the head and face were wet and appeared to have been washed and that all the furniture in the room were intact. The fact that the scene of occurrence was washed is also seen from the photographs Exs.P-38 to 43 and P-48 and the videograph Ex.P-49. As rightly pointed out by the lower court blood is thicker and sticky and it cannot flow throughout the house and only if it is washed with water and a person walks on that it can have the foot prints throughout the house.

That apart, the blood-stained nighty MO-4 of A-2 Padmavathy Shall was found in the scene of occurrence and A-2 also admitted in her examination u/s 313 Code of Criminal Procedure that MO-4 belongs to her. This would clearly prove her presence immediately in the scene of occurrence after the commission of the offence. From that, it follows that she was aware about the grievous injuries sustained by the deceased. MO-7, the blood stained panty of the deceased was recovered from the Museum wall jolly works at the instance of A-2. Though, A-2 denies the fact of having changed the clothes of the deceased, it is clear that the blood stained nighty MO-3 and petti-coat MO-5 of the deceased had been removed and found in the scene of occurrence. Changing of clothes of the deceased could not have been done without A-2''s assistance. The deceased was in fact clothed with another nighty MO-20 which was subsequently recovered at the mortuary. Thus, the evidence of PW-1 which we have no hesitation to accept and the recovery of MOs-3, 4, 5 and 7, the physical features in the scene house would all show that both the accused acted with common intention to made disappearance of evidence of rape and murder with an intention of screening A-1 Kamal Shah from legal punishment of the offence rape and murder.

GIVING FALSE INFORMATION:

The case of the first accused is that on the fateful night, on hearing some noise, he rushed to the room of the deceased, where he found the deceased lying on the floor in a pool of blood and an intruder was there, who later attacked him as well by a knife and that he sustain two injuries at his hands.

At the Hospital, the Inspector questioned A-1 as to how the accident took place, for which, he gave a note in writing, wherein he had stated as to what happened and that has been marked as Ex.P-1. However when he was examined u/s 313 Code of Criminal Procedure (Question No. 77) he disowned Ex.P-1 in the sense that he denied having wrote Ex.P-1 and also signed it. In this context, it has to be pointed out that no suggestion was put to him that Ex.P-1 is not in his hand writing and that he has not signed it. The only suggestion that has been put to his was that Ex.P-1 was prepared on the directions of the Inspector of Police for the purpose of the case. In fact, when PW-24 was in the witness box, he was not cross-examined with regard to this. If the stand taken by the accused while examination u/s 313 Code of Criminal Procedure is compared with Ex.P-2 it could be seen that in both, the contents are virtually the same. We have no reason to discredit the testimony of PW-6 and PW-24. In fact, by pressing into service Ex.P-1, the same would not be advancing the case of the prosecution. As already pointed out the case now put forward u/s 313 Code of Criminal Procedure by the first accused is also virtually the same. In these circumstances, we come to the conclusion that A-1 gave a false information to the police under Ex.P-1 and hence, he is guilty u/s 203 IPC.

We have dealt with and considered various circumstances pointed out by the prosecution and we have come to the conclusion that the prosecution has conclusively established the same except with regard to the extrajudicial confession alleged to have been made by A-1 to PW-5 Gopalakrishnan. The proved circumstances are specific and of a clinching nature and all of them irressitably lead to the only and inescapable conclusion that the first accused is guilty under various Sections viz., 302, 376, 201 read with 34, 203 and 309 IPC, and the 2nd accused is guilty u/s 201 read with 34 IPC. All these circumstances which have been conclusively established are consistent only with the hypothesis of the guilt of the Appellants [in C.A. Nos. 779 and 1012 of 2001] and are totally inconsistent with their innocence. We have also found that none of the witnesses had motive to falsely implicate them and no one had enmity with them. All the witnesses produced by the prosecution have withstood the test of cross examination well and their credit worthiness and reliability have not been demolished in any manner. All these circumstances established by the prosecution, as discussed above, are conclusive in nature and specific in details. They are consistent only with the hypothesis of the guilt of the accused/Appellants and totally inconsistent with their innocence.

We are. therefore, in complete agreement with the trial court that the prosecution has established the guilt of the Appellants/accused beyond reasonable doubt and therefore we uphold their conviction for the offences already detailed above in the earlier part of this paragraph.

Criminal Appeal No. 137 of 2001 has been filed by the Union Territory of Pondicherry as against the judgment in Sessions Case No. 61 of 1999 on the file of the principal Sessions Judge, Pondicherry, questioning the correctness of the judgment in so far as it relates to acquitting the 2nd accused for offences u/s 302 read with 34 and 203 read with 34 IPC.

Learned Public prosecutor appearing for the Appellant/state contended that it is for the inmates to explain as to how Parvathi Shah died and that from the conduct of the 2nd accused it is evidently clear that she shared the common intention with the first accused. Elaborating his submission, learned public prosecutor contended that if really the 2nd accused was innocent, she would have immediately secured the assistance of a Doctor to save the life of the deceased. Instead of doing that, both the first accused and the 2nd accused purposely delayed to secure the necessary medical assistance with the ulterior motive to see she should not recover. They also apprehended that by rendering immediate medical help she may recover consciousness and in which event, she may give a dying declaration implicating both the accused. That apart from the very fact that she did not raise an alarm and that she did not accompany the deceased to the Hospital would speak volumes about her involvement in the crime.

Learned Public prosecutor also contended that the 2nd accused not only shared the common intention with regard to murder of the deceased but also in giving false information in respect of the offence committed.

Learned Counsel appearing for the 2nd accused contended that the trial court has given cogent and convincing reasons for acquitting the 2nd accused for the charge u/s 302 read with 34 as well as 201 read with 34 IPC. Unless this Court is convinced that those reasons cannot be accepted in law or that they are perverse, this Court shall not interfere simply because the Respondent in this appeal viz., the 2nd accused can be held to be guilty for another set of reasons. Even that apart on merits, learned Counsel submitted that even according to the prosecution, there was no enmity or ill-feeling between the 2nd accused and the deceased or the relatives of the deceased and that apart even according to the prosecution, the motive for the first accused to commit the crime was that he had a passionate sinful desire to commit rape on the deceased and certainly, the mother of the accused would not be a party to it.

Learned Counsel for the accused also submitted that immediately the 2nd accused viz., the Respondent in this appeal took care of the deceased and that even according to the prosecution, the 2nd accused placed the head of the deceased on her lap and gave her water. With regard to not going to the Hospital, learned Counsel submitted that as she was completely shaken and totally sad and as Ravi Shall and the first accused accompanied the deceased, she did not accompany the deceased to the Hospital. According to the learned Counsel, there is absolutely no substance in the contentions of the State.

According to the prosecution, the occurrence took place on 14/15-7-1999. It is true that the inmates in the house at that time were only the two accused. Even according to the prosecution, the deceased and the accused had separate bed rooms. PW-1 has categorically admitted in the cross-examination that there is no dispute between both the families. The motive for A-1, according to the prosecution, as spoken to by PW-3 is that the first accused had a passionate sinful desire to rape the deceased and then to commit suicide. It is rather atrocious for the State to contend that the mother of the first accused shared the common intention of the First accused to commit murder of the deceased in the absence of any other material. It is not the case of the prosecution that the 2nd accused is a wicked lady and she will not hesitate to stoop to any level even to commit murder. Hence, it is abundantly clear that there is no motive, for the 2nd accused to share the common intention of the first accused to commit the murder of the deceased.

Even according to the prosecution, the 2nd accused was sitting near the deceased in her room and the head of the deceased was kept rested in the lap of the 2nd accused. The 2nd accused tried to give water to the deceased and was found in tears. Inasmuch as at that time, there was one male member viz., A-1, she might have thought that he would secure the medical assistance. In this context, it has to be pointed out that A-1 did not ring up for help from the first floor, but he came down to the computer room in the ground floor and from there he contacted the Ashram people. It is quite likely that A-2 might not have known as to whom all the first accused had contacted for medical assistance. She might have been under the impression that the first accused would have contacted proper persons to secure urgent medical assistance. It may also be pointed out that nothing seriously follows from the 2nd accused not accompanying the deceased to the Hospital. This is because the deceased was accompanied by the first accused, the husband of the deceased and Ashram people and in fact even before the ambulance left, police people also arrived and they also went to the Hospital. If one takes all these aspects into consideration, it cannot be said that the finding of the trial court is against law or perverse. The reasons given by the trial court for acquitting the re-spondent/2nd accused for offence u/s 302 read with 34 IPC, and 203 read with 34 IPC are cogent and convincing.

In this context, we deem it necessary to refer to the Ruling reported in AIR 1996 SC 2478 [Dhanna v. State of M.P.], wherein the Supreme Court has ruled as under:

Trial Court which relied on the evidence of Nanuram (PW-6) pointed out that the witness did not refer to any role played by Dhanna when he gave statement to the police during investigation and hence a conviction for the offence of murder cannot be passed against Dhana on the strength of improvement made at the trial. The said sound reasoning should not have been sidelined by the High Court without providing sufficient and convincing reasons. None has been given. We have scrutinized the evidence and we too are satisfied that PW-6 Pondicheery, Respondent in both the Criminal Appeals.

Consequently, we do not find any merit in this appeal filed by the State and the same is dismissed.

To sum up, we hold that A-1 is guilty under Sections 302 IPC, 376 IPC, 201 read with 34 IPC, 203 IPC, and 309 IPC.

A-2 is guilty u/s 201 read with 34 IPC.

As regards the sentence imposed on the first accused u/s 376 IPC. viz., Rigorous imprisonment for 10 years, 201 read with 34 IPC, viz., rigorous imprisonment for 2 years and 203 IPC, viz., rigorous imprisonment for 2 years, we do not find any reason to modify the same.

The question that remains for consideration is as to whether the trial court is justified in awarding the death sentence as against the first accused u/s 302 IPC. Or in other words, the question is whether this is one of the rarest of rare cases, where the extreme penalty is called for. To put it differently, what are the special reasons in tins case which would persuade this Court to award the maximum sentence.

To consider the same, the Court has to examine what are the mitigating and aggravating factors. True, this is an unfortunate incident, in which the first accused brutally murdered the deceased after raping her. The accused at the relevant time was aged about 25 years roughly. Even according to the prosecution, he was involved in Ashram activities. PW-3, the Doctor through whom the prosecution proved the motive for the first accused, has deposed that originally that the first accused was suffering from some sort of mental turmoil. When the accused was rather confused as to whether he should become a sanyasi or to do business. Later on, when PW-3 saw the first accused at Pondicherry, the first accused expressed to her that he had some sort of urge to commit rape on the deceased and then to end his life. According to P.W-3, A-1 was admitted as an inpatient in Quiet Healing Centre, a wing of the Ashram where the mentally disturbed persons are being treated. Or in other words, it is not as if the first accused was at the relevant time a normal person. It is not as if that he developed such a passionate sinful desire for many girls/ladies. In fact, one of the prosecution witnesses viz., P.W.-12, a Physical Instructor in Sri. Aurobindo Ashram, Pondicherry had deposed that A-1 Kamal Shall was officiated as a Coach in the gymnasium of the Sri Aurobindo International Physical Educational Centre and he was coaching both boys and girls in the age group of 15 to 17 years. Or in other words, it appears to be a case, where the first accused developed this kind of lust for his sister-in-law. Being a person, who had been associated with the Ashram for quite sometime, it cannot be said that he cannot be reformed. A balance sheet if drawn would show that the mitigating factors are more rather man the aggravating factors. Once we come to such a conclusion, then we have to necessarily hold that awarding extreme penalty is not called for. In fact, in a recent ruling, the Supreme Court has awarded only life sentence in a case where the assailant raped a female baby of one and half years and murdered the child as there were more mitigating factors. Refer 2000 (8) ST 333 (Mohd. Chamman v. State N.C.T. of Delhi).

In this view of the matter, we refuse to confirm the death sentence awarded by the trial court on the first accused. Instead, we sentence the first accused to life imprisonment for the offence u/s 302 IPC.

As far as the 2nd accused is concerned, learned Counsel for the 2nd accused contended that the award of rigorous imprisonment for two years for the offence u/s 201 read with 34 IPC, is too severe and considering the fact that she has undergone a sentence of 14 months, the sentence may be reduced to the period already undergone.

We are unable to agree with the submission made by the learned Counsel for the second accused. It cannot be said in the facts and circumstances that the sentence awarded by the trial court on the 2nd accused for the offence u/s 201 read with 34 IPC is severe or excessive.

In the result,

(a) we confirm the conviction and sentence passed by the trial court on A-1 for various offences under Sections 376, 201 read with 34, 203 and 309 IPC.

(b) For the offence u/s 302 IPC, we sentence the first accused to undergo life imprisonment. Or in other words, we refuse to confirm the death sentence awarded by the trial court.

(c) The conviction and sentence u/s 201 read with 34 IPC as against A-2 have been confirmed.

(d) The Referred Trial is answered accordingly.

(e) Criminal Appeal No. 1012 of 2000 is dismissed except to the extent of altering the sentence from death to one of life imprisonment u/s 302 IPC.

(f) Criminal Appeal No. 779 of 2000 is dismissed.

(g) Criminal Appeal No. 137 of 2001 filed by the Union Territory of Pondicherry is dismissed.

It is reported that the Appellant/2nd accused in Criminal Appeal No. 779 of 2000 is on bail. Hence, the learned Principal Sessions Judge, Pondicherry, shall take steps to commit her to jail to undergo the remaining period of sentence.