AI Structured Summary
Not yet generated for this judgment
Judgment
N. Dhinakar, J.—Criminal appeal No. 54 is by the second accused, Criminal Appeal No. 472 of 1990 is by the first accused, and Criminal Appeal No. 698 of 1991 is by the third accused in Sessions Case No. 239 of 1987 on the file of the learned Principal Sessions Judge, Tirunelveli, and in the judgment, the appellants in the above appeals will be referred to as A2, A1, and A3 respectively as and when the context arises.
Before the trial court, A1 to A3 along with another accused (A4) were charged under charge No. 1 framed u/s 302 r/w 34 IPC on an allegation that on the night of 25.3.1987, they caused the death of Pappa, the deceased in the case, the daughter of Muthian Thevan, by strangling her neck. Under charge No. 2, they were charged u/s 392 IPC for committing robbery of the gold and silver articles of the deceased. Under charge No. 3, A1 to A3 as well as the other accused were also charged u/s 201 IPC on an allegation that after they committed the offence of murder and robbery, they buried the body of the said Pappa in order to screen themselves from the offences. The learned Sessions Judge, on the evidence adduced, acquitted A4, but convicted the appellants A1 to A3 and sentenced each of them to suffer imprisonment for life under charge No. 1 framed u/s 302 r/w 34 IPC. Though they were also convicted under charges No. 2 and 3 framed under Sections 392 and 201 respectively, no separate sentence was awarded. Hence, the above appeals by A1 to A3.
The facts, which led to the charge and ultimate conviction, can be briefly summarised as follows:
The deceased Pappa is the younger sister of P.W.1. P.W.2 is an elder brother of the deceased and P.W.7 is her another elder brother. P.W.1 and the deceased were living in a house at Thevarkulam and P.W.2 an elder brother of the deceased, was residing in the same village but in a different house. Another elder brother of the deceased, P.W.7, was residing at Quilon in Kerala State. Three months prior to the date of incident, the deceased married one Vedamani, but on account of misunderstandings between herself and her husband Vedamani, she left her matrimonial home and divorce was also obtained. After the divorce, she was eking out her livelihood by bringing clothes from a co-operative society situated in Palayamkottai and stitching them for charges. The deceased was also working in a match factory where P.W.3 was her co-employee. In the said match factory, A3 was also working. Friendship developed between the deceased and A3, who is said to be the concubine of A1, while they were working in the match factory. The deceased was in the habit of lending loans to A2 and A1. A3 borrowed a sum of Rs. 400/-from the deceased, which she did not repay. The deceased was asking A3 to return the money and unable to repay it. A3 left Thevarkulam and took up her residence at Sankarankovil. A1 used to visit A3 since they were in intimacy with each other. After coming to know that A3 had taken up residence at Sankarankovil, P.W.1 and the deceased went to the house of A3 and asked for the return of money. A3 told them that she has no money and asked the deceased to come on 25.3.1987 to collect the same. P.W.1 and the deceased returned. This was 15 days prior to the date of incident.
On 25.3 1987 at about 11.00 am., the deceased left the house after telling P.W. 1 that she will go to the house of A3 to collect money and thereafter to the co-operative society to obtain clothes for stitching. P.W.1 saw the deceased boarding a bus for Sankarankovil. At the time when the deceased left, she was wearing M.O.1- a gold chain, M.O.2 series - a pair of gold ear-studs, M.O.3 a wrist watch, M.O.4 - a gold ring, M.O.5 series - a pair of silver anklets. She was also wearing M.O.6, a blouse, and M.O.7, a nylex saree. At about 10.30 a.m, P.W.3 also saw the deceased at the bus-stand. The deceased requested P.W.3 to obtain a token at the co-operative society after telling her that she will go to the house of A3 at Sankarankovil and then go over to Palayamkottai to collect clothes at the society. The deceased was not seen alive thereafter either by P.W.1 or P.W.3. Since the deceased did not return home that night, P.W.1 asked P.W.3 as to the whereabouts of the deceased. P.W.3 informed P.W. 1 that the deceased did not go over to the co-operative society on that day. P. Ws. 1 and 2 searched for the deceased, but could not find her. A telegram was also sent to P.W.7, who was at Quilon, to find out whether the deceased had gone there. P.W.7 informed P. Ws.1 and 2 that the deceased did not go over to his house. This information that the deceased did not go to the house of P.W.7 was conveyed to P. Ws. 1 and 2 on 29.3.1987.
On 30.3.1987, at 4.30 p.m., P. Ws.1. and 2 left Thevarkulam and went to Sankarankovil to the house of A3 to find out the whereabouts of the deceased. When they went to the house of A3, it was found locked from outside. When they peeped through a window, they did not find anything. When questioned, the neighbours informed that the accused have left the house after packing everything. When they went around the house, they saw a place enclosed on all three sides with cudjen leaves. P.W. 1 looked at the place and found that the earth was fresh and found the earth to be soft. P.W.1 pointed out the place to P.W.2. P.W.I then shifted the earth with her hands and on shifting she noticed a portion of a nylex saree, M.O.7. There was also foul smell emanating at the place. Immediately, P. Ws.1 and 2 suspected that her sister Pappa must have been murdered and he''r body must have been buried at the place. P.W. 1 then left for the police station at Sankarankovil where she gave a complaint, Ex.P-1, at about 7.00 a.m. on 31.3.1987 to Thangamani, the Circle Inspector of Police (After the investigation, the said officer died and the investigation conducted by him was spoken to by P.W. 18, the Grade I Police Constable, who assisted the said officer). In the said complaint, Ex.P-1, P.W.2 also attested. A case in Crime No. 155 of 1987 was registered by the said Circle Inspect of Police. Ex.P-22 is a copy of the printed First Information Report. A requisition was issued to P.W. 14, the Tahsildar of Sankarankovil Taluk, for exhuming the body and conducting autopsy.
On receipt of the requisition, P.W. 14 reached the scene of occurrence and in the presence of witnesses and with the assistance of P.W.6, P.W. 14 exhumed the body of Pappa. P. Ws. 1 and 2 identified the dead body as the body of their sister Pappa. They also noticed that the jewels worn by the deceased were seen missing on the body. He conducted inquest over the dead body of Pappa during which, he examined P. Ws.1, 2 and others. Ex.P-15 is the report of the Tahsildar regarding the inquest conducted by him. As the dead body was in a highly decomposed condition, a requisition was issued by the Circle Inspector of Police, requesting the doctor to go over to the scene of occurrence to conduct autopsy.
On receipt of the requisition, P.W.9, the Assistant Civil Surgeon attached to Government Hospital, Sankarankovil, reached the scene of occurrence and conducted autopsy on the body of Pappa at 12.10 p.m. on 31.3.1987 and found the following:-
A dead body of a female lies on right lateral position. /cuticle lost all over the body. Skin all over the body is soft.
Both hands are tied together with one end of a nylex saree at wrists level and kept on the front of the chest. The brought to the lower limbs and are tied together just above the ankles with three circles and are flexed at the (tightly) hips and knees. Then, the saree is brought through the left side of the neck and brought down through the right side of the neck. The last end of the saree is tied around the knees with a single circle.
The Hyoid bone is fractured at the junction of the left greater cornua and body, and at the centre of the right greater cornua. The distal fragments bend inwards.
The mandible is, fractured into two at the symphysis menti. The broken ends are irregular. The lower central two incisors are missing.
Internal organs: The heart is blackish, soft, empty. The lungs are soft and (N.C.) here and there. The stomach is empty.
The liver, spleen, kidneys and uterus are soft. The teeth are shaky. The Rectum and urinary bladder are empty. The brain is liquified.
He issued Ex.P-6, the postmortem certificate, reserving his opinion pending the report of chemical analysis. After the receipt of the chemical analysis report, he gave his final opinion by opining that the deceased would appear to have died of asphyxia due to strangulation.
After the post-mortem was over, clothes of the deceased, M. Os.6 and 7 as well as M. Os.11 to 14 were seized by P.W. 16, the post-mortem constable, and were produced at the police station. An observation mahazar, Ex.P-4 was prepared by the investigating Officer in the presence of P.W.8. A rough sketch Ex.P-23, was also drawn by him. M.O.8 series, cudjen leaves, and M.O.9 series, sticks, which were used to cover the place, were seized under a mahazar Ex.P-4. The investigating Officer then examined P.W.s.1, 2 and 5 and recorded their statements, M.O.10 series, broken bangles, which were lying at the scene, were also seized. On 3.4.1989, the photographer and the post-mortem doctor were examined by the investigating officer, on 7.4.1987, A1 and A3 surrendered before the Judicial Magistrate, Thirumangalam. On 23.4.1987, the investigating officer filed a petition before the Magistrate and obtained police custody of A1 and A3. They were questioned in the presence of P.W.10 at about 8.00 a.m. A1 gave a statement and the admissible portion of the same is Ex.P.8. Similarly, A3 gave a statement, admissible portion of which stands marked as Ex.P-11 in the case. In pursuance of the said statements, A1 took the police party to the house where they were residing for rent and from the eastern side of the house, dug out earth, and produced a polythene bag in which M.O.4, a gold ring, and M.O.5 series, silver ankles, were found. The polythene bag is M.O.15. The above material objects were seized under a mahazar Ex.P-9 attested by the witnesses. Thereafter, A1 and A3 took the police party to the house of P.W. 11 and when questioned, P.W.11 produced M.O.1, a gold chain, which was recovered under a mahazar, Ex.P.10, attested by the witnesses. On the dollar attached to the gold chain, it was found that there was a "cross" in the front and a letter ''P'' on the rear side. Similarly, the silver anklets were also contained the letter ''P'' and the address ''N.R.V.K.P''. The accused were brought to the police station and were sent for remand.
On 26.4.1987at about 1.00p.m. A2 was arrested by the investigating officer in the presence of P.W. 12 and another and when questioned, he came out with a statement and the admissible portion of the same is Ex.P-12. In pursuance of the said statement, A2 took the police party to his house from where, he produced M.O.3, a wrist watch, belonging to the deceased, which was seized under a mahazar Ex.P. 13 attested by the witnesses. A2 then took the police party to the house of P.W. 13, who produced M.O.2. series, gold ear-studs, and they were seized under a mahazar Ex. P-14, attested by P. Ws. 12 and 13. A2 was brought to the police station and later sent for remand. The material objects seized were identified by P. Ws 1 and 2 on the night of 26.4.1987. A4 in the case, who was acquitted by the trial court, was also arrested at 3.00 p.m. on 26.4.1987 and later sent for remand. The material objects seized in the case were sent to the court with a request to forward them for analysis. The investigating officer, after completing the investigation, fded a final report against A1 to A4 under Sections 302 r/w 34,397, r/w 34 and 201 r/w34 IPC on 23.6.1987.
When questioned u/s 313 Cr.P.C., A1 and A2 have denied their complicity. A3 has stated that the deceased went to her house on 25.3.1987 and stayed in her house. According to her, at about 11.00 p.m., while she and the deceased were sleeping on a mat. P. Ws. 1 and 2 came in a bicycle and asked her whether food had been given to the deceased to which, she replied saying that the deceased took her meals. At about midnight, according to A3, A1 and A2 gagged her mouth and thereafter, forced the deceased to consume coffee. She further alleged that a grinding stone was dropped on the neck of the deceased and that A2 strangled the neck of the deceased. She stated that she could not raise her voice and further alleged that A1 and A2 strangled the deceased to death with the saree. According to her, after they committed the murder of Pappa, they removed all the gold ornaments as well as the silver anklets and later, buried the body in a pit which was dug earlier to plant a coconut tree. She further stated that she was threatened by A1 and A2 not to divulge anything. According to her, she was with A1 and A2 and later surrendered before the police.
The body that was exhumed near the house of A3 on the morning of 31.3.1987 is the body of Pappa is not disputed. P.W. 16, the post-mortem constable, also has stated that after the post-mortem, the body was handed over to the relatives of the deceased. This evidence of P.W. 16 remains unchallenged. The accused have also not stated anything in their statements recorded u/s 313 Cr.P.C. that the body that was exhumed by P.W. 14 is not the body of the deceased Pappa P. Ws.1 and 2 have, in their evidence, stated that they identified the body by seeing the saree, M.O.7, which the deceased was wearing on the day when she left for Sankarankovil to the house of A3. It is also not in dispute that Pappa died on account of homicidal violence. The post-mortem doctor, after conducting autopsy on the body of Pappa at the scene of occurrence and after obtaining the chemical analysis report, gave his final opinion, Ex.P-7 wherein he has opined that the deceased Pappa died on account of asphyxia due to strangulation. In view of the evidence of the post-mortem doctor and in the absence of any rebuttal by the accused, we hold that the body that was exhumed was the body of Pappa and that she died on account of homicidal violence.
It is the case of the prosecution that the deceased was done to death by A1 to A3. To prove the said fact, the prosecution, before the trial court, relied upon circumstantial evidence since the occurrence was not Witnessed by anyone. In a case of circumstantial evidence where there is no eye-witness to the murder, the standard of proof to convict the accused on such evidence is that the circumstances relied upon must be fully established and the chain of evidence furnished by these circumstances should be so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused. In a case of circumstantial evidence, not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused and in a case, where the various links have been satisfactorily made out and the circumstances point to the accused as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which is accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain - vide Deonandan Mishra Vs. The State of Bihar, This view of the Supreme Court had been reiterated in the subsequent decision as could be seen from the judgment rendered in State of Maharashtra Vs. Suresh, , wherein the Supreme Court has held that a false answer can be counted as providing ''missing link" in completing the chain.
Keeping the above principles of law in mind, we will now analyse the evidence available on record to find out whether the accused have committed the offence as alleged by the prosecution. P.W.1 is the elder sister of the deceased. P.W.3 is co-worker of the deceased, who was working in a match factory. According to P.W.3, the deceased was in the habit of transacting money with A2 and A3. She has further stated that A3 has borrowed a sum of Rs. 400/- from the deceased. This aspect was also spoken to by P.W.1. It is their evidence that in spite of repeated demands, A3 did not repay the amount and 15 days prior to the date of occurrence, the deceased and P.W. 1 went to Sankarankovil where A3 had taken up a residence after leaving Thevarkulam and asked for the return of money. A3 requested the deceased to come back on 25.3.1987 promising her to pay the amount on that day. We have no reason to reject the evidence of P. Ws. 1 and 3. This circumstance establishes that A3 wanted the deceased to go over to her house on 25.3.1987.
The other circumstance is brought out through the evidence of P. Ws.1 and 3. According to P.W.1, the deceased left the house on the morning of 25.3.1987 after telling her that she intends visiting A3 to collect the money and then the co-operative society to collect clothes for stitching. She was also seen at the bus-stand boarding a bus by P.W. 1 and at that time, she was wearing gold ornaments and silver anklets. She was wearing M.O.7, a nylex saree. P.W.3, a co-employee of the. deceased, was also requested by the deceased at the bus-stand to collect a token for her at the co-operative society. At that time, the deceased told P.W.3 that she is leaving for Sankarankovil for meeting A3 to collect the amount and promised P.W.3 that she will reach Palayamkottai and collect the clothes. The evidence of P. Ws. 1 and 3 shows that the deceased left for the house of A3 and was not seen alive thereafter.
Since the deceased did not return home. P.W.1 asked P.W.3 on the evening of 25.3.1987 for which P.W.3 replied saying that the deceased did not go over to the co-operative society on that day. P. Ws. 1 and 2 searched for the deceased which proved futile. A telegram was also sent to P.W.7, an elder brother of the deceased, who was residing at Quilon, and he informed back on 29.3.1987 that the deceased did not reach his place. As the deceased did not reach home, P. Ws. 1 and 2 left Thevarkulam for the house of A3 on 30.3.1987 in search of the deceased since the deceased left for Sankarankovil on 25.3.1987 to meet A3 to collect the amount. On reaching the house of A3, it was found locked. When they questioned the neighbours, they were informed that A1 to A3 and the acquitted accused have vacated the house after packing all the materials. P.W. 1 peeped through one of the windows and finding nothing inside the house, she went around the house. While so searching, she found a place where the earth was soft and when she dug out the earth, a portion of a saree, M.O.7 was seen. Foul smell was also emanating at the spot. P. Ws.1 and 2 immediately suspected that her sister Pappa must have been murdered and her body buried at the place. Immediately thereafter, P.W.1 reached the police station at Sankarankovil and laid a complaint, Ex.P-1, with the investigating officer, which was registered as a crime.
P.W. 14, the Tahsildar, on a requisition from the Circle Inspector of Police, reached the spot and the body was exhumed with the aid of P.W. 6. The body was identified by P. Ws. 1 and 2 as the body of the deceased. The circumstance of the exhumation of the body near the house of A3 is another link in the chain of circumstances. When the body was exhumed, P. Ws. 1 and 2 found the jewels which the deceased was wearing on the morning of 25.3.1987 missing on the body of the deceased. The said fact was also informed to the investigating officer. Investigation was taken up and later, A1 and A3 were taken into custody after they surrendered. When questioned, A1 and A3 came out with a statement each, which we have discussed in the earlier part of this judgment, and the same led to the recovery of a gold ring, M.O.4 and silver anklets. M.O.5 series, which were kept concealed in a polythene bag, M.O.15. The said polythene bag was buried near the house of A1 and it was produced by A1 after digging out earth. At the instance of A3, M.O.1, a gold chain, was recovered under a mahazar Ex.P-10 from P.W.11 and the dollar attached to the chain contained a ''cross" as well as a letter ''P'' probably indicating the name of Pappa. The accused have no explanation for the said recovery of these articles.
The learned counsel for the appellants strenuously contended that from the recovery the court cannot infer that the accused have committed the offence since M. Os.4 and 5 were recovered from a open space. We are unable to accept the said contention. It is the case of the prosecution that A1 not only took the police party, but also dug out earth and from a pit, took out and produced M.O.15. a polythene bag, in which M. Os.4 and 5 were kept concealed.
As held by the Supreme Court in State of Maharashtra v. Suresh (JT 1999(19) SC 513), three possibilities can be countenanced when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. According to the Supreme Court, the first possibility is that the accused himself would have concealed it, the second is that he would have seen somebody else concealing it, and the third is that he would have been told by another person that it was concealed there. The Supreme Court held that if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities, the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else, he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is well-justified course to be adopted by the criminal court that the concealment was made by himself. The Supreme Court held that such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.
When we apply the above principles, it is to be noted that the accused have no explanation for the concealment and it is to be inferred that the accused himself has concealed the articles. Similarly, at the instance of A3, as we stated earlier, the gold chain, M.O.1, was recovered from P.W. 11 and the dollar attached to the chain contained a ''cross'' on the front side as well as the letter ''P'' was found engraved on the rear side indicating the name of Pappa. The accused have no explanation for the said recovery. We accept the evidence of recovery made at the instance of A1 and A3. This is yet another circumstance against the accused. Similarly, A2 was arrested on 26.4.1987 at about 1.00 p.m. A2 also gave a statement which led to the recovery of the wrist watch, M.O.3, which was seized under a mahazar Ex.P-13. A2 took the police party to the house of P.W. 13 who produced gold ear-studs, M.O.2 series, which were seized under a mahazar Ex.P-14 attested by P. Ws. 12 and 13. Though P.W. 13 has turned hostile, P.W. 12 has supported the prosecution version. We see no reason as to why we should reject the evidence of recovery made at the instance of A3 by the investigating officer. Nothing is brought out in the evidence of these witnesses for us to reject the evidence of arrest and recovery. We accept their evidence. The material objects so seized were also identified by P. Ws. 1 and 2 as the ornaments worn by the deceased on the morning of 25.3.1987. The accused have no explanation to offer for the said recovery.
In Baiju alias Bharosa Vs. State of Madhya Pradesh, the Supreme Court held that whether the presumption should be drawn under Illustration (a) of Section 114 of the Evidence Act that the murder and robbery form part of the same transaction depends on the facts and circumstances of each case. The Supreme Court held that the nature of the stolen article, the manner of its acquisition by the accused, the nature of the evidence about its identification, the manner in which it was dealt with by the accused, the place and circumstances of its recovery, the length of the intervening period, the ability or otherwise of the accused to explain his possession, are factors which can be taken into consideration in arriving at a decision.
When we apply the above principles as enunciated by the Supreme Court, we could raise a presumption under Illustration (a) of Section 114 of the Evidence Act that the accused not only committed robbery, but also murder in order to commit robbery and that robbery and murder form part of the same transaction. The non-explanation for the possession of the jewels is also an additional link in the chain of circumstances as held by the Supreme Court in Deonandan Mishra v. State of Bihar (1955 SC 801).
The discussion made above indicates that the prosecution succeeded in proving all the links in the chain of circumstances and the trial Judge was justified in convicting and sentencing the appellant/A 1 to A3 as stated earlier. We see no reason to interfere with the order of conviction and sentence passed by the trial court. The appeals are, therefore, dismissed.
It is reported that A2 is on bail. Hence, the Sessions Court will take steps to commit him to jail to undergo the remaining period of sentence.