Kerala High Court
Basant vs Unknown on 11 January, 2012
Bench: R.Basant, P.Q.Barkath Ali
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE R.BASANT
&
THE HONOURABLE MR.JUSTICE P.Q.BARKATH ALI
WEDNESDAY, THE 11TH DAY OF JANUARY 2012/21ST POUSHA 1933
CRA.No. 1775 of 2007 ( )
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SC.517/2006 of ADDITIONAL DISTRICT COURT (ADHOC), THODUPUZHA.
ACCUSED(S)/ACCUSED
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VIDYALAKSHMI @ VIDYA, D/O.SANTHANAM,
H.NO.9
GOKULAM HOUSE
BALAJI STREET
V.O.C.NAGAR
PAMMAL
CHENNAI-75
TAMIL NADU.
BY ADV.SRI.J.JOSE
SRI.S.RAJEEV
COMPLAINANT(S)/COMPLAINANT
==========================
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA
ERNAKULAM (CRIME NO.183 OF 2006 OF MUNNAR
POLICE STATION).
BY PUBLIC PROSECUTOR SRI.ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
11-01-2012 , ALONG WITH CRA. 2453/2007, CRA. 628/2009, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
R. BASANT &
P.Q. BARKATH ALI, JJ.
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Crl. Appeal Nos.1775 & 2453 of 2007 and
628 of 2009
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Dated this the 11th day of January, 2012
JUDGMENT
Basant,J.
(i) Is the chain of circumstances complete and convincing to prove the guilt of the appellants?
(ii) Are the accused/appellants or any of them entitled to the benefit of doubt?
(iii) Does the impugned verdict of guilty, conviction and sentence call for appellate interference?
2. These broad questions are raised for our consideration by the learned counsel for the appellants in these appeals. Appellants 1 and 3 have been found guilty, convicted and Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 2 :- sentenced under Sec.120B IPC. Accused 1 and 2 have been found guilty, convicted and sentenced under Sec.302 read with Sec.34 IPC. Accused No.3 has been found guilty, convicted and sentenced under Sec.302 read with Sec.114 IPC. Accused 1 and 2 have further been found guilty, convicted and sentenced under Sec.379 read with Sec.34 IPC.
3. The prosecution version unfolds a very sad and unfortunate tale of events. The prosecution alleges that accused 1 and 3 - young persons aged 26 and 24 years respectively, were in love from their school days. They had allegedly tasted the forbidden fruit and were having sexual relationship for a long period of time. It is even alleged that A3 - a young woman, was obliged to get her pregnancies aborted on a couple of times on account her physical relationship with A1. They belong to different communities and strata in society and they could not hence get married to each other in accordance with their wishes. In these circumstances, the marriage between deceased Anandaraman and A3 was solemnized - as arranged by their families on 7/6/2006. According to the prosecution, A1 and A3 continued their relationship even thereafter. The deceased Anandaraman wanted to take his wife - A3 for a honeymoon trip Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 3 :- to Kerala. A3 allegedly passed on this information to her lover - A1. There was allegedly a conspiracy between A1 and A3 to do away with Aanandarman. A1 attempted to enlist the support of a friend of his for due execution of the conspiracy. He did not succeed in his attempts to enlist the support of P.W.19. He therefore allegedly procured the services of A2 later. A1 and A2 allegedly started along with the appellants and A3 from Chennai in the same train. A1 and A2 followed A3 and the deceased during their entire trip - according to the prosecution, seeking an opportune moment to implement the decision of the conspirators. They reached Guruvayoor where A1 and A2 allegedly seized the opportunity to have interactions with A3 alone to the exclusion of the deceased. Thereafter, they proceeded separately to Munnar, the next destination in the itinerary of the deceased and A3. They had started from Chennai on the 16th of June, 2006. They reached Guruvayoor on 17/6/06. They both allegedly reached Munnar on the evening of 17/6/06, after A3 and the deceased offered prayers at Guruvayoor temple.
4. At Munnar it is the case of the prosecution that A1 and A2 wanted to get themselves accommodated at Sterling Resorts where A3 and the deceased were to stay in accordance with their Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 4 :- itinerary. They could not and they accommodated themselves at Hotel Arafa in Munnar. It is the case of the prosecution that A1 and A3 were in contact with each other during the entire trip. A3 and the deceased in P.W.1's car and A1 and A2 in PW.2's autorikshaw allegedly proceeded to the tourist spot of Kundala dam on 18/6/06. There, it is the case of the prosecution that the deceased was led by A3 to an isolated place which afforded opportunity for implementation of the scheme of the conspirators. According to the prosecution, A1 and A2 who had reached there found the opportunity and caused the death of the deceased by ligature strangulation with M.O.7 (camera strap) and smothering. A3 was a willing conspirator who was present and facilitated the commission of the crime. She afforded opportunity for A1 and A2 to retreat from the scene of the crime and thereafter - after ensuring that they are at a safe distance came, running from the scene of the occurrence and complained to P.W.1 and others that two miscreants had caused the death of her husband and had decamped with valuable properties/cash belonging to them. The local persons swallowed that version. A complaint was lodged before the police by P.W.1, the driver of the vehicle in which A3 and the deceased had traveleled. The Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 5 :- police commenced investigation.
5. According to the prosecution, A1 and A2 had panicked thereafter. On seeing a police van proceeding to Kundala dam - the scene of the crime, they became panicky. They came to know that word had gone around that a crime had been committed and the police were looking for 2 persons who had allegedly committed that crime. They somehow wanted to leave Munnar to some other place. They made enquiries with P.W.2 and others as to how they could could hurriedly leave Munnar. Their conduct allegedly aroused suspicion in the mind of P.W.2 and his friends. They ensured that A1 and A2 did not escape and informed the police about the suspicious activities of A1 and A2. Thereupon A1 and A2 were taken to the Police Station.
6. Interrogation commenced. A3 was also available at the Police Station at that time as the complainant/victim of the alleged crime. The police found that the clothes worn by A1, A2 and A3 were stained with human blood. They further found that the nail clippings of A1 and A2 had blood marks on them. They allegedly recovered M.O.6 tour programme of A3 and the deceased in the handwriting of A3 from the possession of A1. Interrogation allegedly led to confession and in the course of Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 6 :- such confession, appellants 1 and 2 revealed information about the concealment of watch, camera and cash of the deceased and the gold chain of A3 which, according to A3, was taken away from her by force by the unknown miscreants. They were recovered on the basis of the statements which are sought to be admitted under Sec.27 of the Indian Evidence Act. The deceased, at the scene of the crime, had some scalp hairs of the miscreants within his fingers. They were seized by the police while preparing the inquest report. Those hairs were found to be similar to that of A1.
7. The Investigating Officer - P.W.40, who had commenced investigation on the basis of the complaint lodged by P.W.1, filed charge sheet against the accused (A1 to A3) raising allegations against them under Secs.120B, 302 and 392 IPC.
8. The learned Magistrate, before whom the final report was filed, after observing all legal formalities, committed the case to the Court of Session. The learned Additional Sessions Judge took cognizance of the offences alleged against the appellants. The appellants/accused denied the charges framed against them by the learned Sessions Judge. Thereupon, the prosecution was directed to adduce evidence in support of its Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 7 :- case.
9. The prosecution examined P.Ws.1 to 40 and proved Exts.P1 to P80. M.Os.1 to 51 series were also marked by the prosecution. The accused were directed to enter upon defence. They did not adduce any evidence at the stage of defence. However, Ext.D1 was marked by A2 when P.W.29 was examined.
10. In the course of cross-examination and when examined under Sec.313 Cr.P.C., the accused had taken up the defence of total denial. A1 and A3 did not dispute and did admit their relationship. But according to them, the relationship had been put an end to in 2004. Thereafter, A3 had willingly entered matrimony with the deceased. They denied any contact between them after 2004. A1 and A3 did not dispute the fact that A1 and A2 were present at Guruvayoor and there were interactions between A1 and A3 at Guruvayoor. A1 and A3 denied all other circumstances which were appearing in evidence against them. A3 vaguely suggests that A1 was vexing and harassing her even after her marriage. Police had falsely implicated her as she did not oblige them by falsely identifying A1 and A2 as the miscreants.
11. A2 did not admit that he was present at Guruvayoor Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 8 :- along with A1. He took the stand that he had accidentally met A1 at Ernakulam on 17/6/06. He was on his way to Munnar and A1 also happened to be proceeding to Munnar. Both allegedly proceeded to Munnar as tourists; but together from Ernakulam. They took the stand that they were taken into custody by police unnecessarily as there was a dispute between them and P.W.2 about the autorikshaw charges that were payable.
12. All the three accused took the stand that they were not in any way responsible for the murder of deceased Anandaraman and that they were falsely implicated by the police without proper verification of details in their anxiety to somehow resolve the crime relating to the murder of Anandaraman.
13. The learned Sessions Judge, on an anxious evaluation of all the relevant inputs, came to the conclusion that the prosecution has successfully established the offence of criminal conspiracy punishable under Sec.120B IPC between A1 and A3. The learned Sessions Judge came to the conclusion that there is no sufficient evidence to come to a conclusion that A2 was one of the conspirators. The learned Sessions Judge further found that the murder of deceased Anandaraman was caused by A1 and A2 in the presence of A3 at the scene of the crime at Kundala dam Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 9 :- using M.O.7 camera strap. The death of the deceased was caused by the ligature strangulation. There was also an attempt to smother the deceased, it was further held. The learned Sessions Judge further came to the conclusion that attempts were made deliberately to mislead others by making it appear that it was the case of some unknown miscreants attempting to commit theft/robbery of valuable articles which the deceased and A3 were having with them. Either for unjust enrichment or to mislead others, valuable articles/cash M.O.10 gold chain, M.O.8 camera, M.O.9 watch and Rs.13,000/- ( M.O.46) were taken away by A1 and A2, it was further held. Accordingly, the learned Sessions Judge proceeded to pass the impugned verdict of guilty, conviction and sentence.
14. Before us, the learned counsel for appellants 1 to 3 and the learned Public Prosecutor have advanced their arguments. An appellate judgment, we assert at the risk of repetition, must be reckoned as and read in continuation of the judgment of the trial court. In that view of the matter, we do not deem it necessary to re-narrate the oral and documentary evidence relied on by the parties in this case. Suffice it to say that the learned counsel have taken us in detail through the oral evidence of Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 10 :- P.Ws.1 to 40 and the contents of Exts.P1 to P80 and Ext.D1. We have also been taken through the charges framed by the learned Sessions Judge against the appellants as also the statements given by the appellants in the course of examination under Sec.313 Cr.P.C. We shall advert to the relevant materials specifically wherever necessary in the course of our discussions.
15. The case rests entirely on circumstantial evidence. We do not think it necessary to advert to precedents to ascertain the nature of the burden on the prosecution and the court while considering a case resting solely on circumstantial evidence. We think it sufficient to remind ourselves of the law correctly. The guilt of the accused has got to be proved beyond doubt by the prosecution in a case resting on circumstantial evidence also. Each circumstance has to be fully and firmly established beyond doubt. The circumstances must form strong links in a chain of circumstances. It has often been said that the strength of the chain is the strength of the weakest link in the chain. The links must hence be strong in order to constitute a strong chain of circumstances. The chain of circumstances must necessarily, clinchingly and unerringly point to the guilt and the guilt of the indictee alone. The circumstances must effectively exclude any Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 11 :- reasonable hypothesis of innocence of the indictees. Having thus reminded ourselves about the Panchsheel principles in appreciation of evidence resting on circumstantial evidence in a criminal trial, we shall now proceed to consider whether the conclusions of the court below can be supported or they do warrant interference in these appeals.
16. The court below has enumerated the 33 circumstances relied on by it in paragraph-58 of the impugned judgment. We have considered the same. We deem it appropriate initially to refer to the circumstances as re-stated by us below. We note that there are altogether 28 relevant circumstances. This definitely includes the circumstances relied on by the learned Sessions Judge. We are choosing to re-narrate the same to facilitate a focused discussion of the circumstances.
17. We shall initially narrate the 28 circumstances. We shall then proceed to consider whether these circumstances have been established. We shall further consider whether the proved circumstances do convincingly establish the indictment against the appellants.
18. The 28 relevant circumstances are narrated by us below:
Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 12 :- (1) A1 and A3 were in love from their school days. (2) They belong to different communities and different social strata and they could not get married in accordance with their wishes. (3) Marriage between the deceased and A3 took place on 7-6-2006. This was a marriage arranged by the families.
(4) A1 and A3 continued their contacts even after A3's marriage with the deceased was fixed and even after the marriage was solemnized. (5) Deceased and A3 started on their honeymoon trip to Guruvayoor, Munnar, etc. They chalked out an itinerary.
(6) The information about the detailed itinerary was furnished by A3 to A1 in her handwriting (MO6).
(7) They - deceased and A3 together and A1 and A2 together, separately travelled by the same train from Chennai to Thrissur (started on 16-6-2006 and reached on 17-6-2006).
Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 13 :- (8) A1 and A2 met A3 at Guruvayoor and had interactions in the absence of the deceased on 17-6-2006.
(9) A1 and A2 were together thereafter until they were taken to the police station on 18-6-2006 at Munnar under a cloud of suspicion.
(10) A1 and A2 after reaching Munnar on 17-6- 2006 wanted to go to Sterling Resort where A3 and deceased were staying in accordance with their itinerary. A1 and A2 had to stay at Arafa Lodge at Munnar on 17-6-2006.
(11) Telephonic contact between A1 and A3 continued on 17-6-2006 and 18-6-2006 until the deceased met with his death on 18-6-2006 and for some time thereafter. Such contacts were between the telephone of A1 and the deceased initially. Later, such contacts continued using the telephone of PW2 when it was found that there was no coverage for A1's phone.
(12) Deceased and A3 went to Kundala Dam in the car of PW1 on the morning of 18-6-2006.
Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 14 :- (13) A1 and A2 also reached Kundala Dam in the auto-rickshaw of PW2 on the morning of 18-6- 2006.
(14) Deceased and A3 terminated their boat ride prematurely and all of them ie., A1 to A3 and deceased were at about the scene of crime near boat jetty at the time when the deceased must have met with his death there.
(15) Deceased suffered death by ligature strangulation and smothering at that place where the dead body was found lying.
(16) Some hairs were found on the hands of the deceased when he was found lying dead at the scene.
(17) A1 and A2 returned from the Kundala Dam to Arafa Lodge - evidently after the death of the deceased before A3 complained about the same to PW1 and others. Complaint was made by A3 after ensuring that A1 and A2 had escaped from the scene.
Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 15 :- (18) Camera (MO8), watch (MO9), gold chain of A3 (MO10) and an amount of Rs.13,000/- were missing, when the deceased was found lying dead and A3 complained that two miscreants had caused the death of the deceased and had gone away with the missing articles.
(19) A3 advanced a different version to the relatives of Anandaraman about the manner in which the incident took place.
(20) While returning from Kundala Dam to Arafa Lodge A1 and A2 turned panicky when they saw a police jeep proceeding towards Kundala Dam.
(21) When word went around that two persons had committed murder of the deceased, A1 and A2 became panicky and wanted to leave Munner emergently some how on 18/6/06.
(22) PW2 became suspicious about the conduct of A1 and A2 and passed on the information to the police with the support of his friends.
Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 16 :- (23) A1 and A2 were taken to the police station on the evening of 18-6-2006.
(24) Interrogation of A1 and A2 led to the seizure of blood-stained clothes worn by A1 and A2.
A3's clothes were also blood-stained.
(25) Interrogation led to taking of nail clippings of A1 and A2 which were found to be blood-
stained.
(26) MO6 - tool itinerary in the handwriting of A3 was recovered from the possession of A1 by the police.
(27) Interrogation led to confession by A1 and A2 and in such statement they furnished information to the police about MOs. 8, 9, 10 and an amount of Rs.13,000/- (M.O.46) which were recovered from their place of concealment inside the room of Arafa Lodge occupied by A1 and A2.
(28) Scalp hairs found in the hands of deceased Anandaraman were found to be similar to the scalp hair of A1.
Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 17 :-
19. We shall undertake the discussions about these 28 circumstances by dividing them into three separate sets. Circumstance Nos.1 to 9 are the first set of circumstances which deal with the events prior to their arrival at Munnar. Circumstance Nos.10 to 23 are the circumstances that had taken place before A1 and A2 reached the Police Station on 18/6/06. Circumstance Nos.24 to 28 are events that transpired after A1 and A2 were arrested by the police.
20. Circumstance Nos.1 to 9 - the first set: According to the prosecution, A1 and A3 were in love from their school days. The prosecution relied upon various pieces of evidence in support of this contention. It is unnecessary to delve deeper into these circumstances as it is conceded now by A1 and A3 that they were in love from their school days. Most of the witnesses who were to tender evidence on this aspect had turned hostile. It is only natural to expect such hostility under the Indian conditions as such evidence would have jeopardized the interests of A1 and A3, close relatives of those witnesses. One need not hence be unduly perturbed about the hostility of such witnesses. We have the evidence of P.Ws.22 and 23 - the father and mother of A1 of the relationship between A1 and A3. We have also M.O.51 series Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 18 :- which are said to be love letters exchanged by A1 and A3. We do not think it necessary to delve deeper into this aspect as we find that A1 and A3 have admitted that they were in love from their school days. The evidence available convincingly point to the safe conclusion that A1 and A3 had shared a relationship of love and affection.
21. The learned counsel for A1 and A3 want this Court to accept that the relationship had come to an end in 2004. Evidently the love letters are not dated and this affords them the opportunity to advance such a contention. Be that as it may, we have satisfactory evidence about the telephonic contacts between A1 and A3 after the marriage with Anandarman was fixed - immediately before the marriage and after the marriage. M.O.16 is said to be the sim card of a telephone which A3 was making use of. Even though the prosecution attempted to examine P.W.27 to prove that M.O.16 sim card was sold by P.W.27 to A3, that attempt did not prove successful in view of the hostility of P.W.27. It is true that the prosecution had not produced better evidence to prove the person to whom M.O.16 was issued by the sim card dealer. Be that as it may, we have the evidence of P.Ws.12 and 10, the father and brother Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 19 :- respectively of the deceased. Their evidence throw crucial light on the owner of M.O.16 sim card. It is their evidence that after the death of the deceased, they had taken away the belongings of the deceased from their place of stay at Sterling Resorts, Chinnacanal, Munnar and that included M.O.16 sim card which did not belong to the deceased and which did belong to A3. It is true that better evidence was not impossible to prove the linkage between A3 and M.O.16. But that inadequacy notwithstanding the totality of inputs convincingly reveal that M.O.16 was the sim card used by A3 before and after her marriage. The call details record of the telephone of A1 has been produced and that clearly shows that there were interactions between A1 and A3 before and after the marriage of A3 with the deceased was fixed and was actually solemnized [see Ext.P46(a)]. We do also see that Ext.P57 and the oral evidence of P.W.38 does not convincingly show the mobile connection number of M.O.16 telephone; but not a semblance of doubt is left in our mind about the connection number of M.O.16 and that A1 and A3 were in regular contact with each other after the marriage was fixed and even after solemnization of marriage using those telephones. Absolute certainty and perfection is the Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 20 :- dream in a criminal trial though not humanly achievable in all circumstances. It is in this view of the matter that we do not attach undue significance to the absence of crisp, cogent and exact evidence to link the sale of M.O.16 to A3. The evidence produced along with the admission of the accused reveal that they were in love with each other. The telephone calls which went between them after the marriage of A3 was fixed with the deceased and even after solemnization of marriage do eloquently show that circumstances 1 and 2 have been established satisfactorily. Of course, we note that there is nothing to indicate that A3 had violently resisted the idea of her marriage to deceased Anandaraman. Probably she was convinced of the futility of demanding that she be married to A1 at that juncture. May be more mischievous ideas crept into her cranium and she may have thought that as a widow there may have been better chances of having a life with A1. Those probabilities are indicated. But the circumstances are certainly established - that even from their school days A1 and A3 were in love; that considering the social strata and position the marriage between them could not be performed; that A3 and the deceased had got married to each other in a marriage arranged by the families on Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 21 :- 7/6/06 and that notwithstanding the fixation of their marriage and solemnization of the same the lovers continued to be in contact with each other. Circumstance Nos. 1 to 4 are thus according to us established beyond the semblance of a doubt.
22. It is proved and admitted that the deceased and A3 started on their honeymoon trip to Guruvayoor, Munnar etc. on 16/6/06 from Chennai. They reached Guruvayoor on 17/6/06 where P.W.1 - a tourist taxi operator owning his taxi was present at the Trichur railway station to take them in their trip to Munnar via. Guruvayoor. The prosecution heavily relied on the availability of the entire tour itinerary of the honeymoon couple with A1 in the handing writing of A3 (M.O.6). We shall discuss this aspect of recovery of M.O.6 from the possession of A1 in greater detail when we discuss the third set of circumstances. The fact remains that A1 and A2 had come to Guruvayoor in the same train as A3 and the deceased. They were following/chasing A3 and the deceased evidently on the basis of prior information received which they had with them. There can be no dispute that A1 and A2 were available at Guruvayoor on the morning of 17/6/06. They had taken a room adjacent to the room which A3 and the deceased had taken. It is unnecessary to refer in Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 22 :- detail specifically to the evidence on this aspect. We have convincing evidence from P.Ws.14 and 15 that A1 and A2 had taken a room at Guruvayoor near Arunodayam Tourist Home where A3 and the deceased had taken rooms. A1 and A2 had been identified by P.Ws.14 and 15. We have also the evidence of P.Ws.3 and 4 that the deceased and A3 had occupied the room at Arunodayam Tourist Home at Guruvayoor. Their evidence further shows that A1 and A2 had stolen a moment and were seen discussing something with A3 as perceived by P.W.4. Though A2 particularly, and A1 generally disputed the evidence on this aspect, we get convincing assurance of the oral evidence of P.Ws.3, 4, 14 and 15 from the documents available and above all, from the admitted stand of A1 and A3 that they did have interactions with each other at Guruvayoor. It is only A2 who specifically disputes his presence at Guruvayoor on that day. The evidence of P.Ws.14 and 15 convincingly assure this Court that A2 was also present along with A1. A1 admits this specifically in reply to questions in the course of 313 examination.
23. It will not be inapposite in this context to refer to the artificial story offered for consumption by A2 that he accidentally Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 23 :- ran into A1 a person from his native place at Ernakulam and continued to be with him until A1 and A2 were taken to the Police Station on the evening of 18/6/06. That improbable version advanced by A2 does also go a long way to persuade the Court to accept the oral evidence of P.Ws.3, 4, 14 and 15 (duly supported by documents) and further assured by the stand of A1 and A3 that they did meet each other at Guruvayoor.
24. A lot of dispute is raised as to whether A1 and A2 have been proved to travel along with A3 and the deceased from Chennai to Thrissur by the same train. The prosecution relies on the evidence of P.Ws.25 and 26 - railway officials. That A3 and the deceased travelled by that train is not in dispute. However, the case that A1 and A2 travelled in the train is not specifically proved by the ocular account of any one. But as stated earlier, their presence at Guruvayoor on the morning of 17/6/06 is convincingly established as indicated above. We have railway documents - Exts.P38 and P39 and the oral evidence of P.Ws.25 and 26 that two wait-listed tickets were booked in the name of A1 and P.W.19. P.W.19 turned hostile. According to the prosecution, P.W.19 was the first accomplice enlisted by A1. He backed out at the last moment and A2 was a substitute who came Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 24 :- in the place of P.W.19. Exts.P38 and 39 reveal that the wait- listed tickets in the name of A1 and P.W.19 was booked for the journey from Chennai to Thrissur in the same train in which A3 and the deceased were travelling. A prudent man is, in these circumstances, not left with any doubt that A1 and A2 were following the deceased from Channai in accordance with itinerary planned by the deceased for his honeymoon trip. The interactions between A1 and A2 with A3 at Guruvayoor in the Arunodayam Tourist Home removes the last trace of doubt, if any, that A1 to A3 were travelling on the basis of prior design/agreement. So far as the allegation that A1 and A2 were together after Guruvayoor is concerned, it is not disputed that they were together from the afternoon of 17/6/06 till they were taken into custody by the police on 18/6/06.
25. We are, in these circumstances, satisfied that the first set of circumstances is clearly proved. We entertain not a trace of doubt on the acceptability of the prosecution case that A1 and A3 were in love from their school days; that they continued their relationship even after marriage of A3 with the deceased was fixed and solemnized; that A1 and A2 were following A3 and the deceased on their honeymoon trip; that A1 and A2 stole an Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 25 :- opportunity for interaction with A3 in the absence of the deceased at the hotel in Guruvayoor; that A1 and A2 continued to follow A3 and the deceased from Guruvayoor to Munnar and that A1 and A2 were together thereafter till they were taken into custody by the police on the evening of 18/6/06. The first set of 9 circumstances are thus established convincingly by the prosecution.
26. Circumstance Nos.10 to 23: The next set of 14 circumstances deal with the events at Munnar on 17/6/06 and 18/6/06. A3 and the deceased had reached Munnar and had checked into the Sterling Resorts on the evening of 17/6/06 as per their itinerary. A1 and A2 evidently reached Munnar by bus later on that evening of 17/6/06. It is the case of the prosecution that they knew that A3 and the deceased were at Sterling Resorts and they wanted to be accommodated at or near that Resort. We have the evidence of P.W.2 - an autorikshaw driver, that A1 and A2 wanted them to be taken to the Sterling Resorts on night of 17/6/06. That could not be done and that led to A1 and A2 being accommodated in a cheaper local lodge by name 'Aarafa Lodge' at Munnar on 17/6/06. That A1 and A2 made attempts to reach Sterling Resorts where A3 and the deceased were lodged Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 26 :- in accordance with their itinerary is certainly a very relevant and crucial circumstance when we consider the acceptability of the prosecution version that A1 and A2 were following/chasing A3 and the deceased.
27. On this trip from Chennai to Munnar it is the case of the prosecution that A1 and A3 were in contact with each other over the telephone. The telephone of A1 (M.O.11) with connection No.9382126912 was being used by A3. A3 was using the telephone of the deceased i.e., M.O.2 having connection No.9444794181. The call detail records marked in the case of the telephone of the deceased clearly show that there were frequent and continuous telephone contacts and SMS contacts between the telephone of A1 and the telephone of the deceased. There is no dispute on this specific aspect though a suggestion is raised that this could be evidence of contact between A1 and the deceased. The less said about this theory, the better. No one has a specific case in the course of trial that the deceased and A1 shared any intimate relationship or that there were contacts between A1 and the deceased. That theory can be dismissed straightaway as one which is preposterous and one which cannot generate any reasonable doubt in the mind of any prudent Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 27 :- person. Even A1 does not have a case that he had contacted the deceased over telephone for any purpose. A contention is very strenuously advanced that A3 could not have used the telephone of the deceased without knowledge of the deceased while they were proceeding throughout together. This contention also does not generate any doubt or reservation in our mind as it is evident that a resourceful wife during honeymoon could easily have misled the unsuspecting and gullible husband about the calls that she was making/receiving using his telephone. In the total absence of even a remote possibility that these contacts may be evidence of contact between A1 and the deceased, we find no merit whatsoever in the contention that the call detail record of the telephone of the deceased does not prove the contact between A3 and A1 on 17.06.2006 and 18.06.2006.
28. But problems arose on 18.06.06 when the telephone of A1 did not have the requisite signals at Kundala. We have the evidence of PW2 that A1 wanted him to offer his telephone to him to enable him to contact someone. The evidence of PW2 clearly shows that his telephone MO.1 (connection No.9446933491) was handed over to A1 to facilitate use by him. We now have Exts.P46 and P53(a) call details record of these telephones to Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 28 :- suggest that there were calls between these two numbers on 18.06.06. There were 5 contacts prior to 1 p.m and 4 contacts after 1 p.m. This is clearly borne out by Ext.P53(a) and Ext.P53
(b) proved by PW37. In respect of these calls also the only other possible suggestion is that the contacts may be between A1 and the deceased. We have already taken note of the improbability - nay, impossibility of such contacts between A1 and the deceased on the basis of the tangible materials available in this case.
29. Evidence clearly shows that the deceased and A3 went in the car of PW1 to Kundala dam on 18.06.06. Evidence is also available to show that A1 and A2 went in the autorickshaw of PW2 and reached Kundala dam on the morning of 18.06.06. It is unnecessary to discuss the specific evidence in support of these as it is not disputed and it is virtually accepted that A3 and the deceased as also A1 and A2 were all at Kundala dam on the morning of 18.06.06. There is convincing evidence in support of this. We deem it unnecessary to refer specifically to the evidence in the total absence of any dispute of these facts.
30. The deceased and A3, who went for a boat ride at the Kundala dam terminated their trip prematurely and returned to the boat jetty. This is evident from the oral evidence of PW9 - the Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 29 :- security personnel posted for boat riders. The evidence of PW13 , a local shop keeper, also clearly shows that A1 and A2 brought by PW2 and A3 and the deceased brought by PW1 were available near the boat jetty - the scene of the crime at the relevant time. The availability of A1 and A2 as also the deceased and A3 at about the scene of the crime at the relevant time is thus indicated convincingly by the totality of circumstances proved by the prosecution.
31. That the deceased died on account of ligature strangulation applied with MO.7 and smothering at the place where his dead body was found is again proved convincingly and not seriously disputed. The evidence of PW33 doctor and Ext.P49 postmortem certificate issued by him and the evidence of PW36 and Ext.P52 report submitted by him about the breaking strength of MO.7 camera strap reveal convincingly that the deceased met with his death when he was attempted to be murdered by ligature strangulation with MO.7 and smothering. On that aspect of the matter, no doubt/reservation exists at all. No dispute is raised before us on that aspect also.
32. The details of the telephone calls between the telephone of PW2 and the deceased suggest that at about that Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 30 :- time, calls were made from the telephone of the deceased to that of PW2. That telephone at that time is proved to be in the possession of A1. It is the case of the prosecution that A3, who was privy to the crime, had waited at the scene of the crime for sufficient time to ensure that A1 and A2 made good their escape from the scene and after ensuring that they had reached the zone of safety, she came down complaining that there was an attack by miscreants who murdered the deceased and took away valuable articles/cash. This circumstance is also established satisfactorily notwithstanding the hostility of PW1 on certain crucial aspects. The evidence of PW1 and the admitted Ext.P1 lodged by him is eloquent on this aspect. Indications galore to suggest that A3 came out with a complaint of attack by 2 unknown miscreants only after A1 and A2 had fled from the scene of the crime to some zone of safety. On this aspect we have satisfactory indications from the call details record evidencing the telephonic contacts between the telephone of PW2 (used by A1) and that of the deceased (used by A3).
33. A3 had advanced a complaint that MOs.8, 9 and 10 as also an amount of Rs.13,000/- were taken away by the miscreants who caused the death of the deceased. That she made such a Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 31 :- complaint is evidently clear from Ext.P1 lodged by PW1 notwithstanding his convenient hostility now. It is true that PW1 did not tender substantive evidence on that aspect; but that he had made such a statement to the police in Ext.P1 is evident from Ext.P1 and his admission of his signature in Ext.P1.
34. The prosecution further wanted to rely on the circumstance that A3 had advanced a different version to the relatives of the deceased about the manner in which the incident took place. The court below did not attach much significance to this circumstance. We deem it appropriate to mention that the statement of A3 that the deceased was killed by the driver of a car to PW10 brother of the deceased is also one circumstance adding to the list of other circumstances revealing the complicity of A3. We are at a loss to understand how such a different incorrect version could have emanated from her mouth at that juncture, but for her absolute confusion as to how the situation was to be handled by her at that time. Prevarication on such a crucial aspect indicates convincingly the falsity of the version advanced by A3 to various persons - PW1 and PW10 included.
35. We have evidence that some scalp hairs were found in the hands of the deceased, where he was found lying dead. The Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 32 :- prosecution relies on this to suggest that such hairs could have come from the person of the miscreants. We shall deal with this circumstance later in greater detail when we deal with the third set of circumstances. It need only be said now that according to the prosecution, some hairs were found on the hands of the deceased, where he was found lying dead. A1 and A2, who allegedly had passed on information to A3 that they had reached the zone of safety, had proceeded to Kundala dam in the autorickshaw of PW2. We have evidence of PW2 about that return trip. Notwithstanding the omission of PW21 Forest Guard to record the return trip of PW2's autorickshaw with A1 and A2 in the relevant records, we find it safe to accept the oral evidence of PW2 that he returned along with A1 and A2 from Kundala dam at a time when A3 had not revealed to the world information about the crime committed against the deceased. PW2's evidence on this aspect is found to be absolutely believable. While they were so returning, according to PW2, a police vehicle was proceeding in the opposite direction towards Kundala dam. Seeing this, A1 and A2 turned panicky and started asking questions about the purpose of the police proceeding towards Kundala dam. PW2 perceived panic in the conduct of A1 and A2 Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 33 :- and that is quite consistent with the version of the prosecution that A1 and A2 were fleeing from the scene of the crime after committing the crime.
36. The prosecution further relies on the panic reaction of A1 and A2 when they came to know that word had gone around that a person from Tamil Nadu was murdered and the police were looking for 2 persons (miscreants). According to the prosecution, as revealed from the evidence of PW2, A1 and A2 wanted some how to leave Munnar emergently on that eventing itself. They wanted PW2 to make arrangements to take them out of Munnar emergently. The prosecution relies on this circumstance also as reaction of panic on the part of the guilty A1 and A2.
37. We have the evidence of PW2 that when he came to know later on that evening of the crime that was committed against deceased at Kundala dam, his suspicion was aroused. Friends with whom he had occasion to discuss also confirmed the apprehension of PW2. PW2 and his friends alertly passed on the information to the police and it was thus that A1 and A2 were taken to the police station on the evening of 18.06.06 by the police. It is true that the police man who took A1 and A2 to the Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 34 :- police station from Arafa lodge on the basis of information furnished by PW2 has not been examined. That does not in any way militate against the truth or efficacy of the circumstance that A1 and A2 were taken to the police station consequent to doubts and apprehensions entertained by PW2 about the complicity of A1 and A2. The assessment of PW2 in the given circumstances is definitely a crucial and vital input which speaks volumes for the perception of the responses of A1 and A2 by PW2 on that day.
38. We are, in these circumstances, of the opinion that the 14 circumstances, ie. Circumstances 10 to 23, have been established satisfactorily by the prosecution. The prosecution has succeeded in proving that A1 and A2 had come after A3 and the deceased to Munnar. They made attempts to reach Sterling Resort, where A3 and deceased were residing true to their itinerary (MO.6). A1 and A2 could not reach the Sterling Resort. A1 continued his contact with A3 on 17.06.2006 and 18.06.06 and A1 and A2 reached Kundala dam after A3 and the deceased reached Kundala dam. Evidence clearly indicates that as per information received from A3, A1 and A2 were available at/near the place where the dead body of the deceased was found. After the death of the deceased, indications galore to suggest that A1 Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 35 :- and A2 had gone away from the scene of the crime. The reaction of A1 and A2 on seeing the police party proceeding to Kundala and later when they came to know that police were investigating into the crime against the deceased also afford crucial indications about the culpability of A1 and A2. The assessment and response of PW2, to crown all other circumstances, is eloquent about the manner in which A1 and A2 behaved and reacted on that crucial day. We are of the opinion that circumstances 10 to 23 have also been established satisfactorily.
39. Circumstances 24 to 28 These are perhaps the most crucial circumstances which afford the final assurance for the version of the prosecution and brings relevance and significance, confirmatory in nature to the other circumstances proved in the case. According to the prosecution, consequent to genuine doubts entertained by PW2, A1 and A2 were taken to the police station on the information furnished by PW2 and his friends. A1 and A2 at the police station were questioned. Doubts and suspicions were crystallised. The clothes worn by A1, A2 and A3 were found to be blood stained. The Investigating Officer seized these clothes. The clothes of A1 was found to be human blood stained. Clothes of A2 were found Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 36 :- to be stained with blood. Clothes of A3 were found to be stained with `O' group blood, which is the blood group of the deceased. It is crucial that A1, A2 and A3 do not offer any specific explanation for blood on their clothes. Laborious arguments are advanced that it is unlikely that A1 and A2 would have continued with the blood stained clothes if really they were guilty. They had ample time to change their clothes, it is argued. Evidently the blood marks on the clothes of A1 and A2 were not very prominent. PW2 has no case that he had perceived the blood marks on the clothes of A1 and A2. It is only when the clothes were subjected to closer scrutiny by the police officials who had reason to doubt or suspect the complicity of A1 and A2, that they realised that the clothes were stained with blood. The mere fat that PW2 or any other did not perceive the blood marks earlier, is found to be of no crucial relevance by us in these circumstances. The total absence of any explanation for A1 and A2 for the blood stained clothes seized from them is, according to us, vitally and crucially relevant. This circumstance cannot be wished away by assuming, as contended by the learned counsel for A1 and A2, that such presence of blood is attributable to blood from a mosquito killed or in some other manner. It would be puerile to Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 37 :- accept such explanations for the presence of blood on the clothes of A1 and A2. So far as A3 is concerned, the learned Sessions Judge did not attach any crucial significance to the presence of blood marks on the clothes of A3. The deceased was A3's husband and even if A3 had no contumacious role, the blood from the deceased could have come to the clothes of A3. The learned Judge did not, in these circumstances, reckon the presence of `O' group blood on the clothes of A3 to be of crucial relevance. We note that such presence is there though that circumstance is explainable even if A3 had no contumacious responsibility.
40. In the course of interrogation, the Investigating Officer wanted the nail clippings of A1 and A2 to be taken. A1 and A2 were sent to PW17. He took the nail clippings of A1 and A2 and the nail clippings were subjected to forensic chemical examination. It was revealed that the nail clippings of A1 and A2 were blood stained. This also is, according to us, a very crucial circumstance. Notwithstanding the absence of specific evidence that the blood in the nail clippings of A2 were human blood or human blood of `O' group origin, the significance of the circumstance is not lost. This circumstance is not explained by A1 and A2 satisfactorily. The theory that such blood may have Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 38 :- been accidentally present in the nail clippings of A1 and A2 is not, according to us, convincing or acceptable. This circumstance No.25 also is quite a formidable circumstance against A1 and A2.
41. The prosecution heavily relies on the presence of MO.6 tour itinerary of A3 and the deceased in the handwriting of A3 being available in the possession of A1. According to the prosecution, MO.6 was available in the personal possession of A1 when he was taken to the police station by the police on the tip off given by PW2. That MO.6 is in the handwriting of A3 is proved and is admitted also. If that tour itinerary is found to be present in the possession of A1 with no satisfactory explanation for the same, the same is certainly a crucial circumstance pointing to the culpability of both A1 and A3. A1 denies this recovery of MO.6 from his possession. Argument is advanced that the police who had taken A1 from his room in Arafa lodge had subjected his person to inspection and search before he was taken to the police station. It was only reasonable for the police to have done so. If that be so, it is idle to assume that the presence of MO.6 was not ascertained when A1 was taken from his room in Arafa lodge and the same was available with A1 at Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 39 :- the police station when he was taken there by the police. Non examination of constable Ibrahim, who allegedly took A1 and A2 to the police station, is attempted to be made use of in this context. We do not inherently find anything unacceptable in the version of the prosecution that MO.6 was found in the personal possession of A1 when he was at the police station. Ibrahim or any other who had taken A1 from the Arafa lodge may not have perceived the significance of MO.6. If the same was not immediately seized, we find absolutely no significance in that conduct. A1 and A2, we must remember, were taken to the police station not on the basis of any definite incriminating material, but only on suspicion perceived by PW2. As soon as A1 reached the police station also, it is idle to assume that anyone would have realised the significance of MO.6 in the possession of A1. The significance must have dawned only later when the same was subjected to closer scrutiny after interrogation of all the accused. In these circumstances, we do not find any reason to doubt the recovery of MO.6 from the possession of A1 for the reason that the same was not seized earlier at the room of A1 and A2 at Arafa lodge.
42. A3 has come out with a more ingenious explanation. Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 40 :- According to A3, she is in the habit of noting down details for `time pass'. It is her case that MO.6 was noted by her in that context and she had kept it in her personal belongings. According to her, that is being misused by the police to make false allegations against A1 and in that process to implicate her also. In the totality of circumstances in this case that explanation does not commend itself for acceptance at all. The availability of detailed itinerary of A3 and the deceased in the handwriting of A3 with A1 is, according to us, a very crucial and vital input when we consider the concerted action of the conspirators. That also explains the conduct of A1 and A2 chasing/following A3 and the deceased at all places where they proceeded in pursuance of the itinerary. Even the enquiry about Sterling Resort and the yearning to proceed to the Sterling resort on the evening of 17.06.06 by A1 and A2 as spoken to by PW2 is explained by the programme available in MO.6. We do not find any reason not to accept and act upon the availability of MO.6 in the possession of A1 seized by the Investigating Officer on 18.06.06. The mere fact that the mahazar for seizure of MO.6 is dated 19.06.06; whereas A1 was taken to the police station on the night of 18.06.06 is, according to us, too meagre and unsatisfactory an indication to Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 41 :- squander the vital material MO.6 recovered from the possession of A1.
43. The prosecution relies on the recovery of MOs.8, 9 and 10 and MO.46 (ie. an amount of Rs.13,000/-) from the Arafa lodge admittedly occupied by A1 and A2. MOs.8 to 10, without any dispute, are articles that belong to A3 and the deceased. They were missing at the place where the deceased was found lying dead. They could have been removed from the scene of the crime by persons (miscreants) who were present at the scene. If those articles are found to be in the possession of anyone, that can certainly constitute a very valid circumstance against such person/persons found to be in possession of such articles. We have convincing evidence to show that MOs.8 and 9 are the camera and the wrist watch of the deceased, which he was wearing/using at the relevant time. MO.10, we have convincing evidence to show, belonged to and was worn by A3 on her trip to Kundala. According to the prosecution, A1 was questioned and he furnished information about the concealment of MOs.8, 9 and 10 in the room occupied by him and A2 in Arafa lodge. MOs.8 to 10 were thus recovered by the police on the basis of information furnished by A1, which is admitted into evidence under Section Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 42 :- 27 of the Evidence Act. We have the evidence of PW40, the Investigating Officer, on this crucial aspect. His evidence is supported by the evidence of PW11, an attestor to the recovery mahazars Exts.P18 and P19. The relevant information is marked as Exts.P18(a) and P19(a). The version of PW40 and PW11 is further supported by the contents of the contemporaneous seizure mahazars also. To sum up, we have no hesitation whatsoever to concur with the court below that the recovery of MOs.8 to 10 on the basis of the confession statement of A1 have been proved. This circumstance goes a long way to offer assurance for the other circumstances in addition to this circumstance being crucial and vital.
44. We have also the evidence of PW40 and Ext.P22 mahazar for recovery of MO.46 - an amount of Rs.13,000/- concealed in the clothes of A2. This again is sought to be introduced in evidence under Section 27 of the Evidence Act. On this aspect, we have only the contents of Ext.P1, which shows that A3 had complained that an amount of Rs.13,000/- was taken away from the possession of the deceased. There is no direct evidence to establish the fact that this amount of Rs.13,000/- recovered was the amount lost from the possession of the Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 43 :- deceased. But the fact remains that an amount of Rs.13,000/- was recovered from the place of concealment by A2 on the basis of information furnished by A2. A2 does not offer any specific explanation for the availability of such a large amount of cash with him on 18.06.06. The significance of the circumstance of recovery is not lost altogether by the absence of specific linkage between the money allegedly lost by deceased Anantharaman and the amount of Rs.13,000/- recovered from A2 under Ext.P22. Recovery of Rs.13,000/- is thus certainly established though the said circumstance cannot be held to be as efficacious as the recovery of specific articles MOs.8, 9 and 10.
45. A3 does not also dispute or deny that MOs.8 to 10 did belong to her and the deceased. She has a very interesting explanation for recovery of MOs.8 to 10. According to her now, MOs.8 to 10 were not really lost. They were available at the scene of the crime and the police had falsely created documents to make it appear that MOs.8 to 10 were lost. The story of loss of Rs.13,000/- is also sought to be discounted by A3 with such an explanation. We find absolutely nothing to doubt the version in Ext.P1 that MOs.8 to 10 and MO.46 (Rs.13,000/-) were removed/lost/thieved/robbed from A3 and the deceased. That Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 44 :- explanation was offered at that juncture as A3 was obviously called upon to explain the death of her husband, which incident even now, according to her, she had actually witnessed. Suffice it to say that the prosecution has eminently succeeded in proving this circumstance that MOs.8 to 10 were recovered on the basis of information furnished by A1 to the police and that MO.46 (an amount of Rs.13,000/-) was recovered from the possession of A2 on the basis of information furnished by A2.
46. Some strands of hair were found in the hands of the deceased. This is evident from Ext.P16 inquest report. If such strands of hair were found on the hands of deceased Anantharaman, that can certainly be a crucial input to ascertain the responsibility for his murder. According to the prosecution, these strands of hair were recovered under Ext.P16 inquest report. Later after A1 and A2 were arrested, sample/specimen scalp hairs were obtained by them and the same were sent for forensic examination. Forensic examination revealed that the scalp hairs of A1 were similar to the scalp hairs found in the hands of deceased Anantharaman. In the absence of specific evidence that both hairs came from the same source, this circumstance by itself cannot be held to clinch the issue Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 45 :- certainly. However, the fact that the hair strands found in the hands of the deceased Anantharaman were found to be similar to the scalp hair of A1 certainly is a very crucial and relevant circumstance in the totality of circumstances in the attempt to ascertain the responsibility for the murder of the deceased.
47. The accused take up two fold defences against the similarity of the scalp hairs. Firstly it is contended that at best it can only show that the hairs are similar. There is no evidence to show that they are identical or to indicate that both strands of hair did come from the same specific common source. We accept that the evidence is insufficient to individualise and hold that the hairs in the hands of the deceased must be that of A1 and A1 alone. Science and technology is making great strides forward and the day may not be too far when such expert scientific and technological evidence may help the court to individualise and identify the source of such hairs. More advanced tests are not shown to have been conducted and the input now available is only that both strands of hair were similar. To this extent, the evidence cannot be held to be helpful to establish complicity on the basis of that circumstance alone. But certainly the evidence of this circumstance is a vitally relevant input. Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 46 :-
48. This evidence is sought to be assailed on another general criticism. It is contended that PW40 was too keen to somehow resolve the crime and take credit for the same. Therefore it is alleged that after the arrest of A1, scalp hairs of A1 must have been obtained by PW40 and he must have maliciously planted the same in the hands of the deceased. Ext.P16 must have been prepared only subsequently. In support of this contention, it is pointed out that Ext.P16 as per the seal of the court had reached the court only on 22.06.06. It is also pointed out that the statements of one of the witnesses recorded in Ext.P16 clearly suggest that Ext.P16 could not have been prepared on 18.06.06, the date on which PW40 claims that it was recorded. One of the witnesses - a social worker, is said to have stated that the incident had taken place on the previous day, ie. 18.06.06, suggesting thereby that Ext.P16 could not have been prepared on 18.06.06. That inadequacy is indeed unsatisfactory, but does not persuade us to even remotely entertain an apprehension that scalp hairs found on the hands of the deceased must have been placed there by PW40 subsequent to the arrest of A1 after extracting the same from A1. Except the delay in Ext.P16 reaching the court and the misstatement in Ext.P16 Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 47 :- referred earlier, there are no circumstances which can persuade the court to come to such a major and crucial adverse finding against the prosecution.
49. We are, in these circumstances, satisfied that circumstances 24 to 28 have also been successfully established by the prosecution beyond doubt.
50. What conclusions can safely be deduced from the totality of circumstances proved? This is the next question to be considered. The learned counsel for the appellants contend that even if these circumstances are held to have been proved convincingly, they are insufficient to drive home the charge against the appellants. We shall now take up the safe conclusions deducible from the above circumstances as against the 3 appellants/accused separately.
51. First we shall consider A1 and A2.
52. We have evidence to indicate that A1 and A2 were available at/near the scene of the crime at the relevant time. We have already adverted to the circumstances indicating that probability. If the articles lost/thieved/mischievously removed from the possession of A3/deceased are found to be in the possession of A1 and A2, that would certainly constitute a very Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 48 :- vital circumstance against A1 and A2. Read this along with the unexplained presence of blood marks on the clothes of A1 and A2 and their nail clippings, the same can constitute a formidable circumstance in the absence of explanation coming forth from them. So far as A1 is concerned, on the above circumstance alone, whether the crime was committed with the connivance of A3 or not culpability can safely be assumed/presumed. So far as A1 is concerned, we feel absolutely certain that his responsibility for the murder of the deceased and removal of articles has been established convincingly.
53. So far as A2 is concerned the argument is strenuously advanced that MOs.8 to 10 have not been recovered from his personal possession. Even though the amount of Rs.13,000/- (MO.46) is proved to be recovered from him, there is no definite and specific linkage of the cash recovered from the cash allegedly lost. In these circumstances, it is contended that the case of A2 must be treated separately and distinctly.
54. We are unable to agree. It is true that the recovery of MOs.8 to 10 was made on the basis of the specific statement of A1. But, it would be puerile for a prudent mind to ignore that the same was recovered from the room jointly occupied by A1 and Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 49 :- A2. It will be totally unrealistic to assume that A2 was not aware of and did not share the responsibility for the concealment of MOs.8 to 10 in the room occupied jointly by him and A1. That would be an artificial distinction drawn on the responsibility for the possession of these articles, though the recovery was admittedly at the instance of A1. We cannot afford to ignore the fact that the recovery was effected from the place jointly in the temporary possession of A1 and A2. Knowledge and intention of A2 to possess MOs.8 to 10 along with A1 is thus clearly established. We cannot afford to ignore the fact that MOs.8 to 10 must have been removed from the possession of the deceased and A3 from the scene of the crime where A1 & A2 were together. They must have been carried to the Arafa lodge by A1 & A2 while they were travelling in the autorickshaw of PW2. There are no circumstances to assume that MOs.8 to 10 were available in the room without the culpable knowledge and intention of A2. The mere fact that A1 furnished information about the availability of those articles cannot in any way obliterate or lessen the responsibility of A2 also for the availability of those articles in the room. We are, in these circumstances, satisfied that both A1 and A2 can safely be held Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 50 :- guilty of the offence of murder under Section 302 read with Section 34 I.P.C. It is true that the court below has not specifically declared that the conviction has been entered under Section 302 r/w 34 I.P.C. Even in the absence of such a specific statement, it is very evident that the conviction of both A1 and A2 are under Section 302 r/w 304.
55. The learned counsel for A2 advances a contention that it is quite possible that A2 may have been innocently present along with A1. It is pointed out that till 15.06.06, even going by the case of the prosecution, A1 had no intention to involve A2 in the culpable misadventure. Even on 15.06.2006 the train tickets were booked not in the name of A1 and A2, but in the name of A1 and PW19. The learned counsel for A2 wants further to rely on the fact that A2's mobile phone was not used by A1 for any of the objectionable purposes. Reliance is placed on Ext.D1. There is nothing to show that A2's mobile phone did not have requisite signals at Kundala, it is argued. The learned counsel for A2 attempts to build up an argument in these circumstances that A2 may have been blissfully ignorant about the murder of the deceased and the removal of MOs.8 to 10 by A1 from the scene of the crime.
Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 51 :-
56. According to us, criminal trial cannot merely be a flight of fantasy. In the totality of circumstances proved in this case, we shudder to think that any reasonable and prudent person can concede such a benefit of doubt to A2. The totality of inputs clearly suggest that A1 and A2 were acting in collusion. The totality of circumstances indicates that fact convincingly. The recovery of MOs.8 to 10 from the place in the joint possession of A1 and A2 though specifically at the instance of A1 cannot in any way lessen or obliterate the responsibility of A2 for the crime.
57. We have of course taken note of the contention of the learned counsel for A2 that the deceased is shown to be such a frail person of height 159 c.m and weight 42 kg and that it was not necessary for A1 to seek assistance of any other for the murder of the deceased. The counsel for A2 further relies on the circumstance that no weapons have been used by A1 to commit the offence. These, the counsel argue, are indicative of the probability of A2 not being able to decipher and understand the culpable motivations of A1 before the alleged crime was committed. The learned counsel for A2 further points out that it is not impossible in the circumstances of the case that A2 may Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 52 :- have been kept away from the crime and A1 may have indulged in the crime to the ignorance of A2. Except the indications of smothering available from Ext.P49 postmortem certificate and the evidence of PW33, there is nothing to suggest that more than one person must have been involved in the crime. If at all plurality of persons were needed, A1 and A3 could themselves have committed the crime without any involvement of A2, contends the learned counsel. We find no merit in this contention. That A1 & A2 came together from Chennai and were chasing/going after deceased and A3 is proved. That they were together at the scene of the crime is proved. That they fled from the scene of the crime together is proved. That MOs.8 to 10 must have been carried from the scene of the crime when they travelled together is proved. That they were recovered from the room which was jointly occupied by them is proved. That MO.46 (Rs.13,000/-) was recovered from the room jointly in their possession at the instance of A2 is proved. The fact that MO.13, a copy of MO.6 tour itinerary, was available with A2 in his personal possession which was recovered by PW40 under Ext.P20 is one further circumstance indicating convincingly the involvement of A2 in the scheme of things. Cumulatively these Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 53 :- circumstances point convincingly to the complicity of A2 beyond doubt.
58. It follows from the above discussions that both A1 and A2 can safely be held to be guilty of the offence punishable under Section 302 r/w 34 I.P.C.
59. We now come to the next aspect, ie. involvement of A3. A3 was certainly present at the scene of the crime. A1 was well known to her. She had interacted with A1 and A2 at Guruvayur on 17.06.2006. If they had committed the crime and A3 is trying now to conceal the involvement of A1 and A2, that is itself indicative of the involvement of A3 for the commission of crime. She was present at the scene of the crime. Indications galore to suggest that she had shared the common intention of A1 and A2 to commit the crime. It was done in her physical presence. Indications suggest that the deceased was led by A3 to the place of the crime which afforded secrecy. The totality of circumstances clearly and unmistakably suggest the involvement of A3. A3 has been found guilty of the offence punishable under Section 302 r/w 114 I.P.C. Whether with the help of Section 114 I.P.C or 34, we are satisfied that the culpable involvement of A3 is established satisfactorily.
Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 54 :-
60. The prosecution has a case that all the 3 accused had conspired together to commit the offences. The court below gave the benefit of doubt to A2 and held that A1 and A3 alone can be held to be guilty of conspiracy. No appeal has been preferred against that finding. According to us the mere fact that A2 had joined the conspiracy only at a later stage by itself is not a satisfactory reason to exonerate him from the allegations of conspiracy. Be that as it may, we have convincing indications to suggest that A1 and A3 had conspired together. The background materials proved in the case convincingly suggest that A1 and A3 had entered into a conspiracy and A1 along with A2 had followed A3 and the deceased wherever they went.
61. What was the need of a conspiracy to liquidate the deceased? If A3 did not want to get married, she, an educated, employed woman, could have asserted that she does not want to get married to the deceased. The theory that A3 agreed to get married to the deceased and later planned to liquidate him rebels against reason, logic and commonsense, argues the learned counsel for A3/appellant. The argument may sound impressive at the first blush, but it does not take into account the human realities and probabilities. In the situation in which A3 then was, Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 55 :- it is quite possible that she may not have been able to resist the proposal for marriage with the deceased. The prior love affair, the continuance of the love affair etc. have been proved satisfactorily. It is evident that A3 did not give up or forget the relationship with A1 after her marriage with the deceased. A3 may have had many other respectable methods to avoid a marriage with the deceased or even to subsequently terminate such marriage and get married to A1. But the availability of such options is insufficient for the court to jettison the weight of evidence contra available in this case. The availability of MO.6 with A1 and the course adopted by A1 of chasing the deceased along with A2 from Chennai to the scene of occurrence is convincingly indicative of the existence of a conspiracy between A1 and A3. The frequent contacts between the conspirators A1 and A3 using the telephones of A1 and A3 (MO.16) before they started on the trip, the contacts between A1 and A3 after they started on the trip using the telephones of A1 (and later PW2) and the deceased and the exchange of such telephone calls even after the probable time when the offence of murder took place do convincingly indicate the truth of the theory of conspiracy between A1 and A3. Attempt is made to generate confusion on Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 56 :- the basis of the precise timings of post 1 p.m calls that came from the telephone of the deceased to the telephone of PW2. It is argued that such calls could have been made from the telephone of the deceased to the telephone of PW2 not by A3 to A1, but by persons who came to A3 in an attempt to inform the relatives of A3 making use of the number of the last call (or one of the last calls) seen in the mobile phone memory. Such a specific possibility is not clearly indicated or suggested in the cross examination of PW2 or even in the examination under Section 313 Cr.P.C of A3.
62. What could have been the object of the conspirators? Can it be safely assumed that the conspirators had intended to do away with the deceased? These questions are raised with great vehemence by the learned counsel for the appellants. What happened subsequently indicates perhaps the purpose and the intention of the conspirators. There is nothing to assume that the intention of the conspirators could have been anything lesser than liquidation of the deceased. There is no possible indication of any such lesser intention on the part of the conspirators. It is evident that the conspirators and their associate A2 did not have a clear idea as to where the crime can be perpetrated. Kundala Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 57 :- dam offered the circumstances ideally and the scheme of the conspiracy was implemented there. We agree with the learned counsel for the appellants that the conspirators may not have identified the precise spot for commission of the crime when they entered into a conspiracy. The conspiracy could only have been to do away with and liquidate the deceased at a convenient place and time when the deceased was on the proposed itinerary leaked to A1 by A3. The fact that the indications do not suggest any conspiracy specifically to liquidate the deceased at the scene of the crime does not at all, according to us, militate against the theory of conspiracy advanced by the prosecution. We are satisfied that the totality of circumstances clearly indicate that there was a conspiracy between A1 and A3 at least, even assuming that the court below was correct in giving the benefit of doubt to A2 about his involvement in the conspiracy. The court below, we are satisfied, was, in these circumstances, eminently justified in entering a specific finding under Section 120B of I.P.C against A1 and A3.
63. Whether the intention in removing MOs.8 to 10 and MO.42 was to mislead others or to derive unjust enrichment for A1 and A2, the fact remains that MOs.8 to 10 and Rs.13,000/- (ie. Crl. Appeal Nos.1775 & 2453 of 2007 and 628 of 2009 -: 58 :- MO.46) were removed from the possession of the deceased. The court below, according to us, is eminently justified in coming to the conclusion that A1 and A2 are guilty of the offence under Section 379 r/w 34 I.P.C.
64. It follows from the above discussions that the impugned verdict of guilty, conviction and sentence do not call for interference. We are satisfied that no appellate interference is called for against the impugned judgment.
65. These appeals are, in these circumstances, dismissed.
(R.BASANT, JUDGE) (P.Q.BARKATHALI, JUDGE) Nan/rtr