Kerala High Court
Chellappan vs State Of Kerala on 13 September, 2012
Bench: M.Sasidharan Nambiar, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 13TH DAY OF SEPTEMBER 2012/22ND BHADRA 1934
CRL.A.No. 760 of 2009 (D)
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SC.25/2008 of DISTRICT & SESSIONS COURT,THRISSUR
CP.12/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT,VADAKKANCHERRY
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APPELLANT(S)/ACCUSED:
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CHELLAPPAN
POOVANTHINGAL HOUSE,
ADAKKODE, ARYAN CHOLA
PULAKKODE VILLAGE,
TALAPPILLY TALUK
THRISSUR DISTRICT.
BY ADVS.SRI.P.VIJAYA BHANU
SRI.M.REVIKRISHNAN
SRI.K.JAYACHANDRAN (MADATHIL)
RESPONDENT(S)/COMPLAINANT:
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STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. ROY THOMAS
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
07.08.2012, THE COURT ON THE 13.09.2012 DELIVERED THE
FOLLOWING:
DCS
M. SASIDHARAN NAMBIAR &
P.BHAVADASAN, JJ.
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CRL.APPEAL No.760 of 2009
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Dated this the 13th day of September, 2012.
JUDGMENT
Bhavadasan, J.
The accused in this case, who was prosecuted for the offences punishable under Section 511 of Section 376, 394, 397 and 302 Indian Penal Code, was found guilty of the offence punishable under Sections 394, 397 and 302 I.P.C. He was therefore convicted and sentenced to suffer imprisonment for life for the offence under Section 302 IPC and to pay a fine of Rs.10,000/-, in default of payment of which to undergo simple imprisonment for a further period of six months. He was also sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.5,000/-, in default of payment of which to suffer simple imprisonment for a further period of Crl.Appeal.760/2009. 2 two months for the offence under Section 394 IPC read with Section 397 IPC.
2. Minimol, the victim, was little aware of what the fate had in store for her when she set out for work as usual on 6.9.2002. She was working as a Nurse at Santhi Hospital Pazhayannur. Minimol, her brother P.W.1, their mother and P.W.2, wife of P.W.1 with their children were residing together at a place called Adakkode in Pulakkode Village. Accused was their neighbour. Minimol, in order to reach her place of employment used to start from her house at 6.30 a.m. In order to catch the bus to reach her place of employment, she had to pass through a pathway in the forest area. Of course there was an alternate way available to her, but that was a circuitous one and she had to pay a huge amount as bus fare by taking that route which she could ill-afford. The accused, who was employed in a rubber nursery run by P.W.10, had also to take the same route as the victim. They were familiar to each other. On 6.9.2002 also, it Crl.Appeal.760/2009. 3 is alleged by the prosecution, the accused took the same way soon after Minimol had left her house. The further allegation is that the accused with ill-motive followed the victim. He dragged her from the pathway into the forest and attempted to ravish her. Strong resistance from the victim made his attempt unsuccessful. Prosecution would allege that in order to conceal his misdeeds, the accused did away with the victim using M.O.1 weapon and robbed her ornaments.
3. P.W.6 with her sister and daughters used to go to the forest to collect forest wood. As usual, on 6.9.2003, they went to the forest. No sooner than they had entered the forest, one of the daughters of P.W.6 said " "
(something is lying there) to P.W.6. P.W.6 informed the local people and they gathered at the place to find Mimimol lying dead. Soon thereafter a person by name Kannan informed P.W.1 about the mishap. P.W.1 reached the site of the incident Crl.Appeal.760/2009. 4 and found his sister lying dead. He went to Chelakkara Police Station and at 11 a.m. laid Ext.P1 First Information Statement which was recorded by P.W.23, who registered crime as per Ext.P1(a) FIR. P.W.26 took over investigation and he conducted inquest over the body and prepared Ext.P2 inquest report. He procured the assistance of the Scientific Assistant and had blood samples collected and also the samples of soil and blood collected from the spot. Scientific Assistant collected M.O.17 partial denture from the site and P.W.26 recovered M.Os. 1, 4, 10, 25 to 44 from the site. He had M.Os. 17 to 24 handed over to him by P.W.21 seized as per Ext.P20 mahazar. As per the instructions from P.W.26, P.W.28 prepared Ext.P3 scene mahazar. After inquest, the body was sent for autopsy. P.W.20 conducted necropsy over the body of late Minimol and furnished Ext.P14 report.
The articles and the samples collected by P.W.20 during postmortem were handed over to P.W.26.
P.W.26 seized M.Os. 5, 6, 7, 8, 45, 64 and 67 Crl.Appeal.760/2009. 5 recovered as per Ext.P21 mahazar. He filed Ext.P22 report incorporating Section 302 I.P.C.
Investigation was thereafter taken over by P.W.27.
He had the statements of witnesses recorded. As per the order of this Court, the investigation was entrusted to C.B.C.I.D.. P.W.29 Detective Inspector of C.B.C.I.D. took over investigation on 18.7.2005. P.W.29 had M.O.17 taken to P.W.16 and examined whether it would suit P.W.1 or the accused. After examination, P.W.16 issued Exts. P8 and P9 certificates indicating that the partial denture, M.O.17, did not suit either to P.W.1 or to the accused. P.W.29 then approached P.W.24 on 8.6.2006 for expert opinion regarding M.O.17 partial denture. P.W.24 along with C.W.1 (examined before this court as court witness) conducted the necessary examination and followed the routine procedures in such cases and furnished Ext.P15 report. Ext.P15 revealed that M.O.17 partial denture could have been used by the accused. P.W.29 continued his investigation and Crl.Appeal.760/2009. 6 recorded the statements of witnesses. Meanwhile on the basis of Ext.P15 report, P.W.29 arrested the accused on 10.6.2006 at 10 a.m. as per Ext.P24 arrest memo. On the basis of Ext.P4(a) confession statement said to have been furnished by the accused M.O.16 ingot was recovered from P.W.8 as per Ext.P4 mahazar. He had the materials collected during investigation sent for chemical examination by the Forensic Science Laboratory and obtained Ext.P29 report. He filed Ext.P27 report adding Section 511 of Section 376 and Section 397 I.P.C.
His successor P.W.30 completed the investigation and laid charge before court.
4. JFCM, Wadakkanchery, before whom the final charge was laid, took cognizance of the offence. The said court finding that the offence is one exclusively triable by a court of Sessions, committed the case to Sessions Court, Thrissur. Sessions Court, Thrissur framed charges for the offences under Section 511 of Section 376, 394, 397 and 302 I.P.C.. The accused pleaded not guilty to Crl.Appeal.760/2009. 7 the charge. Prosecution therefore had P.Ws. 1 to 32 examined and Exts. P1 to P29 marked. They had also identified M.Os. 1 to 48 and got them marked. During the cross-examination of the witnesses of the prosecution, the defence had Exts.D1 to D5 marked. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he has been falsely implicated and he is innocent. In his statement, it was pointed out that he is an agriculturist and he stays with his wife and three children and the family is dependent on his income. Except that he knew that Minimol was a resident of the locality, he had no connection with the said lady. He says that he used to go to his place of work by the bus at 6 a.m. He would also say that during investigation police had questioned him on several occasions after the incident and after some days of the incident he was examined by a doctor named Crl.Appeal.760/2009. 8 Rajendran. He pointed out that one of his teeth was extracted 20 years back and he had never used any artificial denture. He had nothing to do with the incident which caused the death of Minimol and also maintained that he had neither sold any gold ornaments nor had shown the shop where the ornaments were sold to the police as alleged by the prosecution. He was taken to the doctor at Kozhikode by the police and his teeth was changed. He had maintained that he is totally innocent in the case. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused had D.W.1 examined. On an appreciation of the evidence in the case, the court below came to the conclusion that the prosecution had succeeded in establishing the case against the accused and accordingly convicted and sentenced him as already mentioned. The said conviction and sentence are assailed in this appeal.
Crl.Appeal.760/2009. 9
5. Learned counsel for the appellant and the Public Prosecutor were heard in detail.
6. Learned counsel appearing for the appellant pointed out that the case rests on circumstantial evidence and the principles regarding a case resting on circumstantial evidence are well settled. Referring to the various circumstances relied on by the court below, learned counsel for the appellant pointed out that most of the circumstances had nothing to do or have any connection with the accused and are mere statements of facts. There is nothing to show that the accused was seen last in the company of the deceased. Except for a vague assertion by P.W.7 that he had occasion to see the accused entering the forest pathway at about 6.30 a.m. - 7 a.m. on the date of the incident, there is nothing to show that he had either gone along with Minimol or Minimol had gone ahead of him through the same way. A casual statement by P.W.7 to the effect that he had occasion to see the accused entering the forest Crl.Appeal.760/2009. 10 pathway at about 7.00 a.m. is totally insufficient to show that he was following the victim. According to the learned counsel, one of the main items of evidence relied on by the lower court is the evidence of P.W.24 and Ext.P15 certificate said to have been issued by P.W.24 and his colleague. The court below, according to the learned counsel, was totally unjustified in coming to the conclusion that M.O.17, the partial denture was one used by the accused without any convincing evidence in that regard at all. There is nothing to show that the maxillary right central incisor of the accused was extracted from the dental clinic at Chelakkara since there is no document to that effect produced by the prosecution. The court below was not justified, according to learned counsel, in coming to the conclusion that the partial denture was made at the dental clinic run by Narayanan Nair at Shornur. No records in that regard were seized from the said clinic nor was any person conversant with the fixing of partial denture was examined in Crl.Appeal.760/2009. 11 the case. Learned counsel drew the attention of this court to the fact that P.W.29 had visited both the clinics, but he was shy to seek any records or to take statements of any of the employees from either of the clinics to say that either the maxillary right incisor of the accused was extracted from the dental clinic at Chelakkara or the partial denture was made and implanted by Dr.Narayanan Nair at his clinic at Shornur. Learned counsel drew the attention of this court to the fact that even assuming that Forensic Odontology had progressed a lot and it may be possible to identify whether the partial denture is either of the dead or the accused, the identification is usually made with reference to the previous dental records. No such records are available in the case on hand and it will be hazardous and precarious to enter a finding that it was the accused who had committed the offence merely based on the evidence of P.W.24 and Ext.P15. Reference was made to the evidence of P.W.16 who Crl.Appeal.760/2009. 12 had been consulted by P.W.29 at the first instance. Learned counsel went on to contend that Exts.P8 and P9 certificates issued by P.W.16 would clearly show that as on 13.8.2004 when those certificates were issued, the artificial denture, namely M.O.17, was not found suitable either to P.W.1 or to the accused. Soon after the denture was recovered, it was pointed out by the learned counsel that the service of D.W.1 was summoned to ascertain whether M.O.17 would suit the accused. His conclusion was that it will not. Learned counsel went on to point out that the prosecution deliberately withheld his evidence in order to conceal the true facts and necessarily an adverse inference will have to be drawn. It is unfortunate, according to the learned counsel, that P.W.16 changed his stand to suit the convenience of the prosecution and the investigating agency and has issued Ext.P10 certificate. A reading of Ext.P10 certificate, according to learned counsel, will leave one in no doubt that it was issued under compulsion and Crl.Appeal.760/2009. 13 threat. Learned counsel went on to point out that M.O.17 had changed hands several times even before the production before court and thereafter also and there was no guarantee that M.O.17 produced in court is the artificial denture recovered from the site. According to the learned counsel, even assuming the evidence of P.W.24 and C.W.1 examined as court witness before this court and Exts.P10 and P15 certificates could be considered, that has to be evaluated in the light of the evidence furnished by P.W.16 and D.W.1 and if it is found that the evidence of P.W.24 with the aid of Ext.P15 is not fully reliable and conclusive, the benefit of doubt should go to the accused. It was also contended that at any rate, the evidence of P.W.24, C.W.1 and Ext.P15 are only opinion evidence and cannot form substantive evidence at all. It could at best be treated as corroborative item of evidence and in the absence of any other evidence, the evidence of P.W.24 and Ext.P15 by themselves would be insufficient to fasten culpability on the accused. Crl.Appeal.760/2009. 14 In support of his contention that expert opinion cannot be the sole basis for conviction, learned counsel relied on the decisions reported in Mani Ram v. State of Rajasthan (1993 Suppl. (3) SCC 18) and Magan Bihari Lal v. State of Punjab ((1977) 2 SCC 210).
7. Learned counsel appearing for the appellant pointed out that reliance placed on by the lower court on the recovery of M.O.16 ingot has no support of law. According to the learned counsel, nowhere from the prosecution records the description of the ornaments said to have been worn or carried by deceased Minimol at the time of the incident is available. There is nothing to show in the evidence of P.W.8 from whom M.O.16 ingot was recovered, to show the description of the gold ornaments said to have been purchased from the accused. Referring to the evidence of P.W.8 it was contended that going by his version he keeps records of every purchase he makes and then he says Crl.Appeal.760/2009. 15 that the purchase made from the accused is not reflected in his records. No reason is given for this omission. Learned counsel also pointed out that the evidence of P.W.8 shows that his records will not show that he had handed over the ingot to the police. Further, the evidence of P.W.8 is only to the effect that in early 2003 the accused had brought a gold chain and pair of ear studs for sale and he had purchased the same. At any rate, according to learned counsel, there is nothing to indicate that the accused was in recent possession of the stolen articles so as to draw the presumption that he was the perpetrator of the crime. Attention was also drawn to the fact that the so-called sale to P.W.8 was in April, 2003 while the recovery of M.O.16 ingot was in June, 2006. According to the learned counsel, one fails to understand as to how P.W.8 could convincingly say that the ingot which he handed over to the police is the ingot he made after melting the gold ornaments sold by the accused.
Crl.Appeal.760/2009. 16
8. Learned counsel for the appellant went on to point out that the conclusion drawn by the court below that the accused and the deceased together used to pass through the forest pathway is without any basis at all. At worst, as far as the accused is concerned, the evidence is only to the effect that the accused too used the same pathway as did the victim. But that is far from saying that they used to go together. There is no evidence adduced by the prosecution to show that any witness had seen them going through the forest pathway on any day. Learned counsel referred to circumstances 1, 2, 3, 5, 6, 8, 9, 10, 11, 12, 13, 15, 22, 23, 24, 25, 26, 30, 31, 32, 33, 34 and 35 and contended that in no way these circumstances connect the accused to the incident.
9. According to the learned counsel for the appellant, the prosecution has the bounden duty to establish each of the circumstances relied on by the prosecution, and the circumstances so established should form a complete chain to lead Crl.Appeal.760/2009. 17 to the irresistible conclusion that it was the accused and the accused alone who had committed the crime. In the case on hand, according to learned counsel, except for creating some suspicion regarding the involvement of the accused, there is no cogent and convincing evidence to show that it was the accused who had committed the ghastly act. At any rate, according to the learned counsel, the solitary item of evidence, even if it could be said so, is the evidence of P.W.24 taken along with Ext.P15 and that, according to the learned counsel, is totally insufficient to come to the conclusion that it was the accused who had committed the murder of Minimol.
10. Learned Public Prosecutor on the other hand contended that the court below has analysed the evidence in considerable detail and has discussed each of the circumstances which go against the accused. The court below has found that each of the circumstances so considered has been fully established and the circumstances so Crl.Appeal.760/2009. 18 established would lead to the irresistible conclusion that the perpetrator of the crime must be the accused. The evidence of P.W.7 shows that the accused was seen going on the ill-fated day through the forest pathway by about 6.30 a.m. at about the time Minimol usually used to pass through the way. The evidence of P.Ws.1 and 2 would clearly show that Minimol had left for work as usual early in the morning on the ill-fated day also. Learned Public Prosecutor pointed out that there can be no dispute regarding the fact that the accused and the deceased were familiar to each other. If that be the state of affairs, the court below was justified in taking note of the fact that even after coming to know of the death of Minimol, the accused had neither chosen to visit the house of the deceased nor had attended her funeral. It is in the above circumstances, according to learned Public Prosecutor, one has to take note of the fact that the accused did not participate in any of the action council meetings raising cry for a proper Crl.Appeal.760/2009. 19 investigation into the murder of Minimol. The evidence of P.W.10 shows that after 6.9.2002 the accused had not reported for work at the nursery. The accused had no explanation for the same. The court below has taken note of the casual reply furnished by the accused to P.W.10 when he brought to the notice of the accused the murder of Minimol. The recovery of M.O.16 ingot, according to learned Public Prosecutor, is the strong item of evidence against the accused. He had no explanation as to how he had come into possession of the gold ornaments belonging to the deceased and the evidence of P.W.8 is sufficient to show that a gold chain and a pair of gold ear studs were sold by the accused to him in early 2003. His possession of the gold ornaments of Minimol soon after her death goes a long way showing his culpability in the incident. According to the learned Public Prosecutor, the most clinching and convincing item of evidence against the accused is the testimony of P.W.24 and C.W.1 examined before this court as Crl.Appeal.760/2009. 20 court witness and Ext.P15 certificate. P.W.24 had in detail testified before court as to how the mold cast of the teeth of the accused was prepared and experiment was carried out to see whether M.O.17 was infact used by the accused. Ext.P15 is the certificate jointly issued by P.W.24 and C.W.1. Drawing attention to Ext.P15 and the evidence of P.W.24, learned Public Prosecutor pointed out that the certificate gives reasons for the finding and the evidence of P.W.24 and C.W.1 being scientific evidence, it is conclusive in nature and that alone can form the basis for conviction. The contention of learned counsel for the appellant, according to learned Public Prosecutor, that expert opinion cannot by itself form the basis for conviction and cannot be treated as substantive evidence is not correct. In support of his contention, learned Public Prosecutor relied on the decision reported in Murarilal v. State of M.P. (AIR 1980 SC 531), State of Kerala v. Vijayan @ Rajan (1992(2) K.L.T. Crl.Appeal.760/2009. 21
878) and Gopal Mohan K. v. S. Govindan Nair (2011 (2) KHC 920). Based on the principle laid down in the above decisions, it was pointed out by the learned Public Prosecutor that even assuming that the evidence of P.W.24 and C.W.1 taken along with Ext.P15, falls under Section 45 of the Indian Evidence Act, is much more than mere opinion evidence and can be accepted for entering a conviction if found to be convincing and creditworthy even without corroboration. Learned Public Prosecutor went on to point out that the various circumstances relied on by the prosecution have been convincingly and cogently established and the circumstances so established form a complete chain which points the finger only at the accused and noneelse. According to the learned Public Prosecutor, the court below was fully justified in coming to the conclusion that the circumstances proved, establish beyond reasonable doubt that it was the accused and the accused alone who was the perpetrator of the crime. It is therefore Crl.Appeal.760/2009. 22 contended that no grounds are made out to interfere with the conviction and sentence passed by the court below.
11. That Minimol, a maiden, died on 6.9.2002 is a fact which cannot be disputed. She as usual left for work on the ill-fated day also. She took the normal route to her place of employment. The evidence discloses that she used to carry M.O.1 with her to chop off the weeds and to ward off animals that may come on the way. P.W.6 Devaky who had gone to the forest to collect fire wood with her daughters and sister happened to see something lying in the forest. She informed the local people and they came and found Minimol lying dead in the forest. P.W.1, the brother of the deceased, was informed and he laid first information statement. P.W.26, who initially took up investigation prepared Ext.P2 inquest report. Ext.P2 inquest report shows the injuries on the body of Minimol. P.W.20, the Forensic Surgeon conducted necropsy on the body of Minimol and Crl.Appeal.760/2009. 23 Ext.P14 is the report. It shows the following injuries:
"Injuries (Ante-mortem):-
1. Lacerated wound 6.5x2.8 cm on the right side of forehead and front of head obliquely placed bone deep with its medial end crossed the midline for a lenth 1 cm and 5 cm above the root of nose.
2. Lacerated wound 4.5x1.3 cm bone deep vertically placed on the forehead in midline with its lower end touching the midline.
On dissection under the injuries No.1 and 2 there was scalp contusion 12x7 cm on the front of head. There was comminuted fracture 7x5 cm on the frontal bone. There was subarachanoid haemorrhage x5 cm on the right frontal lobe. There was subarachanoid haemorrhage 8x7 cm on the occipital lobes and cerebellum.
3. Lacerated wound 3x1xbone deep obliquely placed on the outer aspect of right eyebrow.
4. Lacerated wound 1.9x1cm muscle deep on the front of upper part of right side of head 1.4 cm back to injury No.1.
Crl.Appeal.760/2009. 24
5. Lacerated wound 1.6x0.5 muscle deep on the right side of head 0.6 cm below injury No.4.
6. Multiple abrasions over an area 5x4 cm on the right temple.
7. Abrasion 4x2 cm on the right side of face 0.2 cm below right lower eyelid.
8. Lacerated wound 1.7x0.9 cm on the right side of upper lip 2 cm outer to midline injury was through and through.
9. Abrasion 3x2.5 cm on the right side of front of nose.
10. Abrasion 1.5x0.8 cm on the left side of face just outer to the left ala of nose.
11. Abrasion 2.5x0.6 cm on the left side of face 0.5 cm outer to and parallel to the injury No.10.
12. Abrasion 1x0.3 cm cresentic shape on the left side of face 0.3 cm outer to and parallel to the injury No.11.
13. Abrasion 1.2x0.4 cm on the left side of face 0.5 cm outer to and parallel to the injury No.12.
14. Abrasion 0.5x0.1 cm crescentic on the left side of face 4.5 cm outer to injury No.13.
Crl.Appeal.760/2009. 25
15. Abrasion 2x0.6 cm on the left side of chin 2cm outer to the left angle of mouth.
16. Abrasion 0.8x0.3 cm on the left side of chin 1.3 cm below injury No.15.
17. Abrasion 2.6x0.5 cm on the left side of chin 1 cm outer to midline.
18. Abrasion crescentic shape 0.8x0.1cm on the under aspect of chin in midline.
19. Abrasion 5x2cm on the riht side of chin 2.8 cm outer to midline.
20. Multiple abrasions over an area 6.5x4 cm on the upper part of right side of neck.
21. Incised gaping wound 10x4.5x4cm on the front and sides of neck horizontally placed with its left end 6 cm below left ear and right end 6.5 cm below right ear and 6 cm outer to midline. The wound had cut all the strap muscles of the neck underneath. The thyroid gland was cleanly cut. The trachea was cut at the level of cricoid cartilage completely. The oesophagus was cleanly cut. The internal jugular yeins, carotid arteries, vagus nerves on both sides were cleanly severed.
The body of 6th cervical vertebra was
found out for a dept of 0.4 cm. The
Crl.Appeal.760/2009. 26
transverse process of 6th cervical vertebra on left side was found cut. The vertebral artery on left side was cleanly severed.
22. Abrasion 1/5x1 cm on the back of left side of head 1.5 cm back to left ear.
23. Incised wound muscle deep 4.5x2 cm on the left side of root of neck 1.8 cm below the left end of injury No.21.
24. Skin deep incised wound 12x0.8 cm on the front of lower part of neck and left shoulder 0.9 cm below lower margin of injury No.21 in midline. The wound was horizontally placed.
25. Skin deep incised wound 7.1x0.8 cm horizontally placed on the lower part of front of neck and over the left collar bone 0.7 cm below injury No.24 in midline.
26. Abrasion 0.5 x0.3 cm on the dorsum of left hand 2 cm below wrist.
27. Abraded contusion 1x0.8 cm on the dorsum of left hand 1.6 cm lateral to injury No.26.
28. Abrasion 0.5xo.2 cm on the dorsum of root of left thumb 0.9 cm lateral to injury No.27.
29. Lacerated wound 0.7x0.5 cm on the lateral aspect of left little finger 1.6 Crl.Appeal.760/2009. 27 cm above its tip.
30. Abrasion 0.3x0.2 cm on the back of left right finger 1cm below its root.
31. Abrasion 0.8xp.4 cm on the lateral aspect of left ankle.
32. Abrasion 1.5x1cm on the back of left side of chest 13 cm below shoulder and 5 cm outer to midline.
33. Abrasion 2.5x1.5 cm on the back of right side of chest 24 cm below shoulder and 2.5 cm outer to midline."
The opinion as to the cause of death was that deceased died due to the incised wound sustained to neck. The evidence of P.W.20, who conducted necropsy shows that injury Nos. 1 to 5 could have been caused by the use of M.O.14 stone. Injury Nos. 8 to 20 could have been caused, according to P.W.20, in an attempt to smother and those injuries are suggestive of the victim having been attempted to be smothered to death. According to P.W.20, injury Nos.21, 23, 24 and 25 could be caused by the use of M.O.1 weapon. Injury No.21 is the injury which caused the death of Minimol and that, Crl.Appeal.760/2009. 28 according to the Forensic surgeon, is sufficient in the ordinary course of nature to cause the death of the victim. Injury No.21, which is on the neck is deep and serious one. The jugular vein is seen cut and so also the carotid arteries and oesophagus, The evidence is clinching enough to show that Minimol was done to death and the death of Minimol is homicidal.
12. The next question that arises for consideration is whether the prosecution has succeeded in establishing that it was the accused who caused the death of Minimol. The prosecution builds its case on circumstantial evidence. There is no direct evidence regarding the act said to have been committed by the accused. It is well settled that in a case resting on circumstantial evidence, the prosecution has to fully establish each of the circumstances and the circumstances so established should form a complete chain, cumulative effect of which should lead to the irresistible conclusion that it was the accused Crl.Appeal.760/2009. 29 and the accused alone who was the perpetrator of the crime.
13. While appreciating the case based on circumstantial evidence, the court has to adopt a cautious approach. All chains should be complete and the completed chain should point to the guilt of the accused. The circumstances relevant must be established. But this is not to say that the prosecution must meet any and every hypothesis put forward by the accused however far fetched and fanciful it might be. Nor does it mean that the prosecution evidence must be rejected on the slightest doubt because law permits rejection if the doubt is a reasonable one and not otherwise.
14. The principles governing circumstantial evidence were laid down in the decision reported in Shivaji v. State of Maharashtra (AIR 1973 SC 2622). But the oft quoted decision is the one reported in Sharad v. State of Maharashtra (AIR 1984 SC 1622) wherein panchsheel Crl.Appeal.760/2009. 30 principle was laid down and the relevant portion reads as follows:
"152. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established :
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the following observations were made :
"certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."Crl.Appeal.760/2009. 31
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
15. In the decision reported in Shaikh sattar v. State of Maharashtra (AIR 2010 SC 3320), after referring to the decision reported in G. Crl.Appeal.760/2009. 32 Parshwanath v. State of Karnataka (AIR 2010 SC 2914) it was held as follows:
"We are unable to accept any of the submissions made by the learned counsel for the appellant. Undoubtedly, in this case there is no direct evidence of the crime. The prosecution case hinges on circumstantial evidence. It is an accepted proposition of law that even in cases where no direct evidence is available in the shape of eye-witnesses etc. a conviction can be based on circumstantial evidence alone. The hypothesis on which a conviction can be based purely on circumstantial evidence, was stated by this Court in the case of Hanumant Govind Nargundkar v. State of M.P., 1952 SCR 1091 : (AIR 1952 SC343). In the aforesaid judgment, Mahajan, J. speaking for the Court stated the principle which reads thus :-
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully Crl.Appeal.760/2009. 33 established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. The aforesaid proposition of law was restated in the case of Naseem Ahmed v. Delhi Admn., (1974) 3 SCC 668 : (AIR 1974 SC691) by Chandrachud J. as follows :
"This is a case of circumstantial evidence and it is therefore necessary to find whether the circumstances on which prosecution relies are capable of supporting the sole inference that the appellant is guilty of the crime of which he is charged. The circumstances, in the first place, have to be established by the prosecution by clear and cogent evidence Crl.Appeal.760/2009. 34 and those circumstances must not be consistent with the innocence of the accused. For determining whether the circumstances established on the evidence raise but one inference consistent with the guilt of the accused, regard must be had to the totality of the circumstances. Individual circumstances considered in isolation and divorced from the context of the over-all picture emerging from a consideration of the diverse circumstances and their conjoint effect may by themselves appear innocuous. It is only when the various circumstances are considered conjointly that it becomes possible to understand and appreciate their true effect."
16. In the decision reported in Brajendrasingh v. State of Madhya Pradesh (2012) 4 SCC 289 it was held as follows:
"27. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has Crl.Appeal.760/2009. 35 to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution.
There must be a chain of events so
complete so as not to leave any
substantial doubt in the mind of the
court. Irresistibly, the evidence should
lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.Crl.Appeal.760/2009. 36
28. Furthermore, the rule which needs to be observed by the court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial.
29. It is settled rule of law that in a case based on circumstantial evidence, the prosecution must establish the chain of events leading to the incident and the facts forming part of that chain should be proved beyond reasonable doubt. They have to be of definite character and cannot be a mere possibility."Crl.Appeal.760/2009. 37
17. As to what constitutes reasonable doubt, it will be useful to refer to the decision reported in State of Punjab v. Sukhchain Singh (AIR 2009 SC 1542). After referring to the decisions reported in State of Goa v. Pandurang Mohite (AIR 2009 SC 1066), it was held as follows:
"38. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another, a learned author says [See "The Mathematics of Proof II":
Glanville Williams, Criminal Law Review, 1979, by Sweet and Maxwell, p. 340 (342)] :
"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent Crl.Appeal.760/2009. 38 when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions, and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."
39. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an overemotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A Crl.Appeal.760/2009. 39 reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
18. As regards the standard of proof required, it will be appropriate to refer to the decision reported in Paramjeet singh v. State of Uttarakhand ((2010) 10 SCC 439) wherein it was held as follows:
"10. A criminal trial is not a fairy tale wherein one is free to give flight to one's imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that "human nature is too willing, Crl.Appeal.760/2009. 40 when faced with brutal crimes, to spin stories out of strong suspicions." Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. "The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence." In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induce an instinctive reaction against dispassionate judicial scrutiny of the facts and law.Crl.Appeal.760/2009. 41
11. In Sarwan Singh Rattan Singh v. State of Punjab, AIR 1957 SC 637, this Court observed (Para 12) :
"12.Considered as a whole the prosecution story may be true; but between 'may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence [before an accused can be convicted]."
12. Thus, the law on the point may be summarised to the effect that in a criminal trial involving a serious offence of a brutal nature, the court should be wary of the fact that it is human instinct to react adversely to the commission of the offence and make an effort to see that such an instinctive reaction does not prejudice the accused in any way. In a case where the offence alleged to have been committed is a serious one, the prosecution must provide greater assurance to the court that its case has been proved beyond reasonable doubt."
Crl.Appeal.760/2009. 42
19. Bearing the above principles in mind, an attempt shall now be made to ascertain whether the prosecution has established the circumstances from which a conclusion can be drawn that it was the accused and the accused alone who was the perpetrator of the crime. Efforts will be taken to see whether each of the circumstances is established and also that the established circumstances meet the standard of proof required by law.
20. The lower court has enumerated as many as 35 circumstances which according to the said court are confirmed and cogently established as against the accused. After having gone through the evidence and having heard the learned Senior Counsel for the appellant and the learned Public Prosecutor, we feel that the circumstances which really merits consideration are only three. They are (i) accused was seen going to the forest at about 6.30 a.m. as spoken to by P.W.7 on the date of the incident, (ii) recovery of M.O.16 ingot and Crl.Appeal.760/2009. 43
(iii) evidence of P.W.24 and C.W.1 taken along with Ext.P15 certificate and M.O.17 partial denture which is said to have been used by the accused.
21. The fact that Minimol used to go through the pathway in the forest or M.O.17 was found near the body of the deceased etc., are of little significance so far as the culpability of the accused is concerned. For, those aspects, as rightly pointed out by the learned counsel for the appellant, have no direct bearing on the involvement of the accused. Equally shallow seems to be the reliance placed on the so-called proved circumstances that the accused has not participated in the funeral, not gone to the house of the deceased and the accused not attended the meetings of action council etc. There is nothing to show that the accused had absconded or made himself scarce. There is want of evidence to show that the family of the accused and the deceased were so close to each other so that it would have been inconceivable that the accused would not have gone Crl.Appeal.760/2009. 44 to the house of the deceased on coming to know of the death of the victim.
22. But if the circumstances already mentioned are fully established, then that will lead to the irresistible conclusion that it was the accused and the accused alone who was the perpetrator of the crime. The issue as to whether each of the circumstances individually established is a different question altogether.
23. Evidence in the case is to the effect that the deceased, the accused and several others in the locality used to tread the pathway through the forest as a means of access to the nearest bus stop. The evidence of P.Ws.1 and 2 are to the effect that there is another way which is circuitous and it would involve higher expense for Minimol to reach her place of employment which she could ill-afford. The evidence of P.Ws.1, 2 and others are sufficient to show that Minimol had taken the usual pathway on the ill-fated day also. Crl.Appeal.760/2009. 45
24. One fact needs to be noticed at this juncture. The body was not found on the way through the forest. It was found slightly away from the pathway in the forest indicating that the victim was forced into the forest. However, there is no evidence to suggest that the victim was dragged to the place of incident.
25. It has already been noticed that Minimol went as usual to her place of employment treading the usual pathway on the date of the incident also. The evidence of P.W.7 is to the effect that his house is very near to the way running through the forest and if any person had to take the said pathway, had to pass through in front of his house. P.W.7 has stated that the accused used to go through the front portion of his house to take the pathway through the forest. His evidence is also to the effect that the accused used to go by about 6.30 a.m. through the front of his house on the day on which he goes for employment. The evidence of this witness is clear Crl.Appeal.760/2009. 46 to the effect that on the date of the incident also at about 6.30 a.m. the accused was seen taking the same pathway. Even though he was cross examined at length, nothing was brought out to show that he is not speaking the truth or that his evidence cannot be accepted.
26. The evidence of this witness is criticized by the learned counsel for the appellant on the ground that at best his evidence would show that the accused had gone along the pathway as usual. But there is nothing to show that he happened to see Minimol taking the same way. If as a matter of fact anybody who had to tread the pathway through the forest had to pass in front of his house, he obviously would have seen Minimol also. The evidence does not show, according to learned counsel, that after the accused was seen going through the way leading to the forest pathway, no other person had gone along the same pathway through the forest.
Crl.Appeal.760/2009. 47
27. As already noticed, the evidence is to the effect that Minimol left for work as usual and must have taken the pathway through the forest to reach the bus stop to mount the bus to reach her place of employment. There is no reason to believe that she would have taken a different way. The evidence of P.W.7 is clear to the effect that he had occasion to see the accused going towards the pathway through the forest at about 6.30 in the morning. No convincing reasons are given as to why he should be disbelieved. There is no suggestion to P.W.7 that the accused never used to go through the said pathway. Infact the evidence would indicate that the accused also used to travel through the same pathway to reach his place of employment. P.W.10 has given evidence to the effect that after 6.9.2002 the accused had not reported for work. The first circumstance therefore stands clearly established.
28. The second circumstance on which heavy reliance is placed by the prosecution is Crl.Appeal.760/2009. 48 recovery of M.O.16 gold ingot. The prosecution relies on the evidence of P.W.8 and P.W.26 to prove the said factum of recovery. The lower court chose to accept the evidence of recovery and found that it was the accused who had robbed Minimol off her ornaments.
29. The evidence of P.W.26 is to the effect that based on Ext.P4(a) confession statement M.O.16 gold ingot was recovered from the shop of P.W.8 as per Ext.P4 mahazar. It will be only appropriate here to refer to the evidence of P.W.8.
30. The evidence of P.W.8 shows that he owns a jewellery shop at Chelakkara by name Aiswarya Jewellery. His evidence shows that the accused had come to his shop for selling gold ornaments. The accused had sold a gold chain with locket and a pair of ear studs to him. He says that if his memory is correct he purchased the same from the accused in early 2003 weighing 2 = sovereigns. He would say that he melted the said jewellery and made it into an ingot. He further Crl.Appeal.760/2009. 49 says that in 2006 the police had come to the shop saying that the accused had sold the gold ornaments to him. That was in June, 2006. He says that he handed over M.O.16 ingot to the police.
31. The recovery cannot be accepted for more than one reason. Nowhere we get the description of the gold ornaments which Minimol used to wear while she went to her place of employment. It is true that the evidence of P.Ws.1 and 2 disclosed that Minimol had gold ornaments weighing 2 = sovereigns. P.W.8 also did not describe the ornaments said to have been purchased by him. In cross-examination P.W.8 says that he keeps accounts for both purchase and sale of gold ornaments in his shop. He is definite that details of all the purchases made by him from various customers are reflected in his books. However, he says that the details of the purchase made from the accused are not reflected in his books. His evidence also shows that as soon as he purchases gold from individuals, he melts it down and keeps Crl.Appeal.760/2009. 50 it as ingot. The evidence is found wanting to show that the gold ornaments, even if it is accepted that it was so sold to P.W.8 by the accused, was the ornaments which belonged to Minimol. There is want of identity regarding the gold ornaments said to have been lost by Minimol and the gold ornaments said to have been purchased by P.W.8. Moreover, it escapes ones understanding as to how P.W.8 could have handed over the exact ingot which was made after melting the ornaments said to have been sold to him by the accused, after the lapse of nearly four years. The conclusion is obvious that simply a gold ingot was handed over to P.W.26 and that has been highlighted as recovery on the basis of the confession statement said to have been made by the accused. Even though the court below has chosen to accept this item of evidence, we find it difficult to confirm the same. The evidence is far from satisfactory to show that it was the accused who had sold the ornaments which belonged to the deceased to P.W.8.
Crl.Appeal.760/2009. 51
32. There is yet another aspect.
Admittedly Minimol was done to death on 6.9.2002. Going by the evidence of P.W.8, the sale of ornaments was made by the accused in early 2003. There is also no evidence to show that the accused was found to be in recent possession of the ornaments belonging to Minimol so as to lead to the presumption that it was the accused who had committed the murder of Minimol. This circumstance is not established at all.
33. Next is the circumstance connecting the partial denture M.O.17 to the accused. The prosecution has adduced evidence to show that M.O.17 is the partial denture used by the accused and which must have fallen off at the time of incident due to the resistance offered by the victim. The evidence of P.Ws.26 and 21 Scientific Assistant who had visited the scene of occurrence show that M.O.17 was recovered from near the body of the victim. If the prosecution is successful in establishing that M.O.17 partial denture was Crl.Appeal.760/2009. 52 the one used by the accused, it will be a substantive evidence to lead to the conclusion that it was the accused who had committed the crime.
34. In order to establish that M.O.17 is the partial denture used by the accused, the prosecution placed heavy reliance on the evidence of P.W.24 taken along with the certificate namely Ext.P15 issued by him and C.W.1. The evidence of P.W.16, Dr.Jayakumar, shows that P.W.29 had approached P.W.16 to ascertain whether M.O.17 would suit either the accused or P.W.1. P.W.16 has admitted that he had issued Ext.P8 and P9 certificates stating that the partial denture shown to him does not suit either the accused or P.W.1. He has also admitted that later he issued Ext.P10 certificate on the basis of the finding entered into by P.W.24 as reflected in Ext.P15 certificate. P.W.16 in his evidence has stated that he happened to issue Exts.P8 and P9 certificates without following the necessary procedures and only on oral examination. He in Ext.P10 certificate as well as Crl.Appeal.760/2009. 53 in his evidence says that he being only an Oral and Maxillofacial Surgeon did not have the expertise to ascertain whether the artificial denture shown to him could have been used by the accused. His evidence also would disclose that he did not have the necessary scientific facilities to carry out the necessary tests to ascertain whether infact M.O.17 was used by the accused. He concedes that an expert opinion in this regard could be provided only by a prosthodontist and that his finding in Exts.P8 and P9 are only tentative. In his evidence, P.W.16 has stated that the persons who carried out the necessary tests namely, P.W.24 and Sri.Mehul R. Mahesh (examined as C.W.1 before this court) are experienced in the said field and are Prosthodontists. His evidence would indicate that after going through Ext.P15 report he was convinced that the finding of P.W.24 that M.O.17 partial denture could have been used by the accused is proper and correct.
Crl.Appeal.760/2009. 54
35. The most significant evidence regarding this aspect is the one furnished by P.W.24. He happened to be consulted by P.W.29 and on 8.6.2006 when he undertook the examination, he was working as the Principal of Government Dental College, Kozhikode. He would say that one Chellappan was brought to him with a request to examine whether the artificial denture produced before him by the investigating agency would suit Chellappan. He then in detail speaks about the exercise undertaken by him and his collegue Dr.Mehul R. Mahesh (C.W.1) who was the Senior Lecturer in the department of Dentistry. C.W.1 was asked to take the impression of the teeth and adjoining structures. P.W.24 would say that after taking the impression they prepared the model of Chellappan's upper jaw. P.W.24 would say that then he and Sri.Mehul R. Mahesh, who is examined as C.W.1 before this court confirmed the features of artificial denture and the features of the cast and the following observations were made: Crl.Appeal.760/2009. 55
"1) The missing tooth of the patient's mouth is maxillary right central Incisor and the submitted partial Denture is also that of a replacd missing Right Central Incisor.
2) The Morphology of the artificial tooth of the Partial Denture coincides with the natural Maxillary Left Central Incisor of Mr.Chellapan's mouth.
3) There is a depression in the region of the edentulous space that extends across the ridge which corresponds to the projection as seen in the partial denture.
4) The cervical margin of the teeth of Mr. Chellapan in the region of the maxillary left Central and laternal incisors corresponds with the finish line of the partial denture in the same regions.
5) The partial Denture margin closely adapts with the cervical margin of the corresponding natural teeth.
6) The incisive papilla in the patient's mouth corresponds to the depression in the Artificial Partial denture.
7) At present the partial denture cannot be inserted to the patient's mouth due to the mesial migration of the natural teeth Crl.Appeal.760/2009. 56 to the space of the missing Right Central Incisor."
On the basis of the above conclusion, according to this witness, they came to the conclusion that artificial denture examined by them was infact used by Chellappan. He would say that Ext.P15 is the certificate issued by him. The digital photographs taken at the time of examination of Chellappan were marked as M.O.22 series, six in number. M.O.23 is the model of the teeth prepared ion plaster of pars. The cast prepared is produced as M.O.24. In cross-examination P.W.24 has stated that even though the morphology of central incisors of all human beings are almost similar, they are not identical. He would depose in cross-examination that there was evidence of long usage of artificial denture since they found hard deposits on the same. What is crucial is the answer given by the witness in cross-examination to the effect "In this particular case there was a loss of bone while extracting the tooth and there is a depression in Crl.Appeal.760/2009. 57 the patient's mouth as well as the cast. This depression is seen as an elevated area in the denture. Similar depression and projection will never ever see in another person." P.W.24 would say that being a Forensic Odontologist having an experience of more than 20 years in identifying artificial and natural teeth being produced by the Chemical Examiner's Laboratories and Forensic Departments in the State of Kerala, he was consulted. He however admitted that in Ext.P15 he has not stated the loss of the portion of the bone at the extracted site of the accused as he was not asked to give such a certificate. To a suggestion that without inserting the lost tooth at the edentulous space the expert cannot say that the particular teeth was one lost by a particular person, according to P.W.24 the suggestion is not correct. According to the witness, there will be other features in the mouth and by correlating them, a definite conclusion can be reached whether the lost denture was that of a particular person. Crl.Appeal.760/2009. 58 He adds that without inserting the artificial denture, it can be said if the cervical margin closely adapts the denture margin.
36. The court below has chosen to accept the evidence of this witness and has come to a definite conclusion that the findings are acceptable and the partial denture recovered from the site of the offence is the one used by the accused.
37. Considerable arguments were addressed before this court regarding the acceptability of the evidence of this witness and also on the ground that since the definite opinion can be given only by a Prosthodontist, the non-examination of Dr.Mehul R. Mahesh is fatal. It was also contended that even assuming that the evidence of P.W.24 is acceptable, that by itself is insufficient to come to the conclusion that the accused was the perpetrator of the crime. The question as to whether expert opinion is sufficient to arrive at a conclusion regarding the guilt of the accused Crl.Appeal.760/2009. 59 will be considered a little later.
38. In order to ensure the veracity of Ext.P15 certificate, we thought it fit to have Dr.Mehul R. Mahesh, the Prosthodontist examined before this court in order to be certain that the findings arrived in Ext.P15 are acceptable and conclusive. He was examined as C.W.1 before this court as court witness. When examined as C.W.1, Shri. Mehul R. Mahesh would say that at the relevant time he was undergoing his post graduation. He deposed that Ext.P15 is the report prepared by himself and P.W.24 Dr.Iype Varghese. He then describes the procedures followed by them in coming to the conclusion that partial denture M.O.17 is the one used by Chellappan. He also admitted that they could not insert M.O.17 in the mouth of the accused due to mesial migration of the adjacent teeth. This court put a definite question in the following terms:
"Is it possible to have a similar depression in the region of edentulous Crl.Appeal.760/2009. 60 space that extends across the ridge in two human beings? (Q) No (A).
In cross-examination by the accused, to a question as to whether if such bone breakage is there in the extraction of another person's tooth, then also there is chance for similar depression in the edentulous space, the witness gave the following answer:
"A depression may occur in such
extractions. However, the depression will
vary from person to person. It can never
be similar."
He stated in cross-examination that P.W.24 Dr.Ipe Varghese is an Oral Pathologist. However, Forensic Odontology in India as per the guidelines of Dental Council of India is taught under Oral Pathology Department in Dental Colleges. To a suggestion that Forensic Odontology is in it's infant stage even now, C.W.1 deposed that Forensic Odontology has been used for quite number of decades for identification of victims as well as accused in Crl.Appeal.760/2009. 61 various cases. He also stated that there are numerable cases in literature as well as medico legal journals regarding this aspect. He also stated that he was not aware of the identification of accused based on artificial denture earlier. But in mass calamities, people's dentures were used for identification of the victims. But that is based on the records of earlier examination of the victim. He also deposed that they did not have the medical records of the earlier examination of the accused apart from M.O.17.
39. In cross-examination by the Public Prosecutor, C.W.1 stated that the procedure adopted by them, i.e., C.W.1 and P.W.24, is the proper procedure to be followed to find out whether the artificial denture is used by a person especially when the artificial denture cannot be inserted in the mouth. He also stated that they have noted a depression in the edentulous space of the missing tooth in the mouth of the accused. The corresponding ridge on the under surface, i.e., on Crl.Appeal.760/2009. 62 the tissue touching the surface of the denture corresponds to this depression.
40. We notice from a perusal of the judgment of the lower court that P.W.24 had demonstrated the method adopted by them in arriving at the conclusion contained in Ext.P15. The court below chose to accept the same.
41. The acceptability of an expert's opinion has been the subject matter of considerable debate in legal circles. Normally opinion of a third person is generally inadmissible. Witnesses are supposed to state regarding what they had seen, heard or perceived by their senses. It is the function of the Judge to draw conclusions from the facts before him. Situations may arise when the court finds it difficult to make the correct evaluation or judgment without the help of a person specially skilled or experienced or knowledge on a particular subject. In such circumstances, the court has to look up to experts in that particular field. The normal rule of Crl.Appeal.760/2009. 63 evidence is relevant in such cases. The rule of admissibility of expert opinion is one founded on necessity.
42. It is by virtue of Section 45 of the Indian Evidence Act that the opinion of an expert skilled in foreign law, science or art becomes relevant. The term expert has been broadly defined as a person specially skilled. The term expert seems to imply both special knowledge and practical experience in the art or profession. He is a person who has acquired special knowledge in any science, art, trade or profession. The skill so acquired may be by practice, observation, research or careful study. Expert's evidence is normally an exception to the general rule that opinion of ordinary witnesses are irrelevant. Regarding the test of admissibility of such evidence, Phipson on Evidence - 16th Edn. Note No.33-46 at page 1014 observed as follows:
"The classic statement as to the test of admissibility which has been followed Crl.Appeal.760/2009. 64 in England, is that of the South Australian Supreme Court in R.v Bonython, where it is said that there are two questions for the judge to decide:
"The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This... may be divided into two parts:(a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and
(b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion or assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his Crl.Appeal.760/2009. 65 opinion of value in resolving the issues before the court."
The author further observes "Though the expert must be "skilled", by special study or experience, the fact that he has not acquired his knowledge professionally goes merely to weight and not to admissibility. Likewise the fact that the proponent of a particular form of expertise adopts an approach which would be unacceptable to the majority of experts in that field does not mean that he is incapable of giving expert evidence about the topic, provided he can demonstrate that his approach is based on rational considerations, backed up by adequate intelligence, study and relevant formal qualifications. Equally, one can acquire expert knowledge in a particular sphere through repeated contact with it in the course of one's work, notwithstanding that the expertise is derived from experience and not from formal training. Police officers habitually give evidence relating to matters about which they have acquired in depth knowledge in the course of their Crl.Appeal.760/2009. 66 duties, such as the values of prohibited drugs and the paraphernalia associated with using or with dealing with drugs. And one can be so involved with a particular transaction that expertise is acquired in relation to it, as where a policeman studied a video tape about 40 times, examining it frame by frame and replaying it as often as he needed to do so for the purpose of giving evidence to the jury that the persons seen on the video were those accused of the offences recorded there."
43. It is true that quite often the testimony of experts is considered to be of slight value. It has always been looked upon with suspicion. With the progress of science and technology, the court needs to adopt a pragmatic approach to such items of evidence. The court needs to shed its shyness in accepting scientific evidence. The pedantic approach made by the court needs to be replaced by a more rational and practical approach. With the advancement of science and technology commission of crime has Crl.Appeal.760/2009. 67 become so ingenuous that unless the court prepares itself to accept and adopt scientific evaluation and reasoning of the evidence produced before it based on expert opinion or expert evidence, it may lead to disastrous consequences and would act as boost to criminalisation. This is not to say that the court should blindly adopt an expert's evidence. We need to remind ourselves where an opinion is given by an expert on a particular fact, it needs to be seriously considered and can be rejected only on justifiable grounds. The approach that after all it is only an opinion evidence which does not merit consideration must give way to necessity and requirement in the present context to view such evidence judiciously. We feel that if such evidence is found to be reliable and convincing, there is no reason as to why it should not be accepted.
44. It is true that the evidence of D.W.1 shows that he had occasion to examine the accused with reference to M.O.17. Even though he was cited Crl.Appeal.760/2009. 68 as a prosecution witness, the prosecution did not examine him and infact he was examined as a defence witness. He does say that there can be slight change by the long use of the artificial denture. He also would say that on his examination M.O.17 did not suit the accused. When he was asked whether M.O.17 was the same denture, he replied that he was not sure whether it was the same.
45. Based on the above statement of D.W.1, it is contended on behalf of the appellant that it is possible that there might have been a change of the partial denture so as to suit the prosecution case. To say the least, the suggestion seems too far fetched and preposterous. First of all, there was no suggestion either to P.W.24, C.W.1 or P.W.29 to the effect that they had manipulated the partial denture so as to suit the model obtained by them as spoken to by P.W.24 and C.W.1. Of course there have been laches on the part of the investigating agency in certain aspects. P.W.29 had gone to the clinic where the Crl.Appeal.760/2009. 69 accused claimed that he had got his tooth extracted. But for reasons best known to him, he did not choose to seize the records relating to the same. P.W.29 also went to the place where the partial denture was made, but from there also, he did not seek to have the records or any of the materials seized so as to ensure that partial denture seized was made from the said clinic itself. However, these laches in investigation need not defeat the prosecution case if the evidence of P.W.24 and C.W.1 taken along with Ext.15 is found to be cogent and convincing enough.
46. It will be only appropriate at this juncture to refer to the decisions relied on by both sides with regard to the acceptability or evidentiary value of expert opinion.
47. In the decision reported in Magan Bihari Lal v. State of Punjab (1977) 2 SCC 210) relied on by the learned counsel for the appellant, it was held as follows:
Crl.Appeal.760/2009. 70
"Expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. This type of evidence, being opinion evidence, is by its very nature, weak and infirm and cannot of itself form the basis for a conviction."
48. In the decision reported in Mani Ram v. State of Rajasthan (1993 Supp (3) SCC 18), while considering the question as to the time of death with reference to the food contents noticed at the time of postmorterm, it was observed as follows:
"The emphasis on this aspect of the case by the trial court, in our opinion, is misplaced not only because the medical evidence is only an evidence of opinion and is hardly decisive but also because when Dr.K.C. Mittal P.W.9 stated that digestion begins in 1 or 1 = hours, he did not Crl.Appeal.760/2009. 71 clarify as to what was the extent of the undigested food in the stomach of the deceased. The process of digestion depends upon the digestive power of an individual and varies from an individual to an individual. It also depends upon the type and amount of food taken. The period of digestion is different for different types of food. Some food articles like mutton, chicken etc, would take more time for being digested as compared to vegetarian food."
49. In the decision reported in Malay Kumar Ganguly v. Dr.Sukumar Mukherjee ((2009) 9 SCC
221) it was observed as follows:
"33. Section 45 of the Indian Evidence Act speaks of expert evidence. It reads as under :-
"45. Opinions of experts - When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger- impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts.Crl.Appeal.760/2009. 72
Such person called experts.
Illustrations
(a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.
(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, incapable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.
The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant.
(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinion of experts on the question whether the two documents were written by Crl.Appeal.760/2009. 73 the same person or by different persons are relevant."
A Court is not bound by the evidence of the experts which is to a large extent advisory in nature. The Court must derive its own conclusion upon considering the opinion of the experts which may be adduced by both sides, cautiously, and upon taking into consideration the authorities on the point on which he deposes.
34. Medical science is a difficult one. The court for the purpose of arriving at a decision on the basis of the opinions of experts must take into consideration the difference between an 'expert witness' and an 'ordinary witness'. The opinion must be based on a person having special skill or knowledge in medical science. It could be admitted or denied. Whether such an evidence could be admitted or how much weight should be given thereto, lies within the domain of the court. The evidence of an expert should, however, be interpreted like any other evidence. This Court in State of H.P. v. Jai Lal and others, [(1999) 7 SCC 280]; (1999 AIR SCW Crl.Appeal.760/2009. 74 3309) (Paras 17 to 19) held as under :
"17. Section 45 of the Evidence Act which makes opinion of experts admissible lays down that when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting, or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.
18.An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this Crl.Appeal.760/2009. 75 criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.
19.The report submitted by an expert does not go in evidence automatically. He is to be examined as a witness in court and has to face cross-examination. This Court in the case of Hazi Mohammad Ekramul Haq v. State of W.B., (AIR 1959 SC 488) concurred with the finding of the High Court in not placing any reliance upon the evidence of an expert witness on the ground that his evidence was merely an opinion unsupported by any reasons."
ADMISSIBILITY OF EXHIBITS 4, 5 AND 6
35. Kunal, before us, contended that the High Court committed a serious error in not placing reliance upon medical opinions i.e. Exts. 4, 5 and 6 on the Crl.Appeal.760/2009. 76 premise that no objection in that behalf was raised at any point of time. Kunal would argue that this Court having given him permission to examine the expert witnesses on Video Conferencing and he having deposed in terms thereof, Respondents could have asked for their cross-examination at any point of time and not having done so, it does not lie in their mouth to contend that the opinions of the said experts who are themselves authors on TEN and having done research on the disease TEN, are not admissible."
50. The question as to the evidentiary value to be given to the opinion of an expert was considered in detail in the decision reported in Muralilal v. State of M.P. (AIR 1980 SC 531). The facts of the case show that, there, the basis of conviction was on two grounds, recovery of a wrist watch and the evidence of handwriting expert. After considering the decision reported in Fakhruddin v. State of Madhya Pradesh (AIR 1967 SC 1326) and Magan Bihari Lal v. State of Punjab (AIR Crl.Appeal.760/2009. 77 1977 SC 1091)it was observed as follows:
"4. We will first consider the argument, a Stale argument often heard, particularly in criminal courts, that the opinion-evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with the observation that the expert is no accomplice. There is no justification for condemning his opinion evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the equality of credibility or incredibility being one which an expert shares with all other witness -, but because all human judgment is fallible and an expert may go Crl.Appeal.760/2009. 78 wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non- existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon sub-stantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty 'is to furnish the judge with the necessary scientific criteria for testing the Crl.Appeal.760/2009. 79 accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (Vide Lord President Cooper in Decie v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his Evidence).
5. xxxxxxxx xxxxxxxxx
6. Expert testimony is made relevant by S. 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' 'in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like Illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S. Crl.Appeal.760/2009. 80
3) tells us that 'a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we act on artificial standard of proof not warranted by the provisions of the Act. Further, under S. 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case.
It is also to be noticed that S. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinion of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need to Crl.Appeal.760/2009. 81 no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.
7. xxxxxxx xxxxxxxx
8. xxxxxxx xxxxxxxx
9. xxxxxxx xxxxxxxx
10. xxxxxxx xxxxxxxx
11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated Crl.Appeal.760/2009. 82 earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt. the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted."
51. The question regarding the value to be given to an expert's opinion and whether it could form the sole basis for conviction was considered in the decision reported in State of Kerala v. Vijayan @ Rajan (1992(1) K.L.T. 878). Relying on the decision reported in Muralilal v. Crl.Appeal.760/2009. 83 State of M.P. (AIR 1980 SC 531), it was observed as follows:
"Nothing in Ss.45 to 47 and 73 of the Evidence Act (which are provisions relating to handwriting and/or expert evidence) requires corroboration for expert's evidence as a rule. A fact is said to be proved when after considering the matter before it, the court either believes it to exist or considers its existence so probate that "a prudent man ought, under circumstances of a particular case" to act upon the supposition that it exists (vide S.3 of the Evidence Act). Perhaps a court would require corroboration on the facts of a particular case. That is different from saying that without corroborative evidence no expert evidence shall be relied on. But to say that corroboration is sine quo non for accepting or acting on the opinion of experts is to impose a restriction which law does not warrant. In Murali Lal v. State of M.P. (AIR 1980 SC 531), Chinnappa Reddy, J. has observed thus:
"There is no justification for condemning his opinion evidence to the Crl.Appeal.760/2009. 84 same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the equality of credibility or incredibility being one which an expert shares with all other witness -, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion."
Their Lordships, in that decision, made a survey through all the previous decisions of the Supreme Court on the subject and laid down the law in unmistakable language thus:
"We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion evidence of a Crl.Appeal.760/2009. 85 handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt. the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted."
The issue considered in the above cases was the opinions given by a handwriting expert. Crl.Appeal.760/2009. 86
52. This court had occasion to consider the issue again in the decision reported in Gopal Mohan K. v. S. Govindan Nair (2011(2) KHC 920). In the said case also the subject matter involved was the opinion given by a handwriting expert. This court had occasion to observe as follows:
"Going by the evidence on record and the precedents referred, I find that rather than basing upon the conviction on the report of the expert it is the admissibility of the evidence that is much relevant. In the event the report of the expert is reliable and trustworthy, conviction can be based upon the report of the expert."
53. It is therefore not the law that expert opinion needs corroboration to form the basis of conviction in a case. If going by the principles laid down in the above decisions, on an appreciation of the evidence of the experts along with the certificate of opinion expressed by them are found to be creditworthy and reliable, there is Crl.Appeal.760/2009. 87 no reason as to why the same should not be accepted.
54. Taylor on Principles and Practice of Medical Jurisprudence - 13th Edn. at page 183 deals with Forensic Odontology. The author gives several instances where identification of victims in mass disasters were made by resorting to the examination of teeth. Of course, the author does say that if earlier dental chart was available, it would be more easy for the comparison. At page 189, the author observes as follows:
"The value of dental means of identification has become fully recognised since the end of the second world war and in the experience of any authorities has provided the most consistent and accurate single means of identification."
At page 193, the author deals with partial dentures. It is observed as follows:
"Partial dentures are specifically designed to fit and augment a particular individual natural dentition. The denture teeth replace the known missing teeth (by Crl.Appeal.760/2009. 88 extraction) as presented on the charting and records of a particular person. In common with full dentures the construction of the partial denture can be described with regard to the material used for the base, either metal or acrylic plastic, and the material used for the teeth, either porelain or acrylic plastic and of particular mould shape and shade. The metals used in the construction of partial dentures of skeletal design are chrome/cobalt alloys, gold alloys, and now less commonly dental plates of stainless steel, and will include the valuable identifying features of occlusal rests clasps and with modern technique, precision attachments. These latter features can be specifically related to individual teeth even if the partial denture is found separate from an intact unknown body or separate from a fragmented jaw in the circumstances of an air disaster. The plastic material used in the construction of a denture base and gumwork may be colourless, pink or stippled. Therefore the description of the partial denture taken in conjunction Crl.Appeal.760/2009. 89 with the dental charting of the restorative work provides an important means of establishing the identity of an individual."
55. HWV Cox on Medical Jurisprudence and Toxicology - 7th Edn. at page 249 observes as follows:
"This is a very large and rapidly growing subject, which needs the expert advice of a dentist who is interested and experienced in forensic work. It is a common misapprehension that any dentist is competent to examine teeth for purposes of identification, but this is not so, just as any doctor or pathologist is not competent to carry out detailed forensic examinations.
In many cases, no such expert dental advice is available and the medical examiner will have to carry out his own dental investigation. In such cases, it is essential to have a good reference book on forensic odontology, such as are listed in the bibliography at the end of this chapter.Crl.Appeal.760/2009. 90
The teeth may aid in identification both in the general and in the particular way. In other words, they may assist in the broad groupings of sex, race and age, but their particular value is in pinpointing the individual, but only if previous dental records are available when a match is trying to be established."
56. Modi on Medical Jurisprudence and Toxicology - 24th Edn. at page 232 observes as follows:
"Detailed dental records or the cast, which a dentist takes of his patient's jaw for fitting artificial teeth, or the presence of any peculiarities of the teeth, may sometimes be very valuable for the purposes of identification in the case of a missing or a dead person."
The author also observes that the teeth afford a useful means of identification, especially in the case of bodies, which have been destroyed by injury, fire, air crash or decomposition. The author makes mention of an interesting case where Crl.Appeal.760/2009. 91 a goldsmith was arrested for having in his possession several diamond crystals stolen from a jewellery shop in Lucknow on the basis of the tooth of the accused.
57. Dr. Umadethan on Principles and Practice of Forensic Medicine, in Chapter 32 refers to Forensic Odontology and its utility in identifying an individual on the basis of the dental structure.
58. It is therefore clear that Forensic Odontology has achieved giant strides in the field of identification of both victim and the accused. Instances are not rare as could be seen from the literature referred to above when the identification was made of an individual on the basis of remnants of teeth obtained from the site.
59. Viewed in the light of the above literature, there is no reason to disbelieve the opinion furnished by P.W.24, C.W.1 taken along with Ext.P15 or should be viewed with suspicion. Both P.W.24 and C.W.1 have spoken in detail as to the Crl.Appeal.760/2009. 92 procedure followed by them and the reasons for arriving at the conclusion that partial denture M.O.1 was the one used by the accused Chellappan.
60. It is significant to notice that the competency or the expertise of these two witnesses are not called in question at the time of their cross-examination. It is not suggested to them that they are incompetent to arrive at the conclusions as shown in Ext.P15. Both of them have spoken about their qualifications and experience in the field.
61. We find no justification or reason to discard the evidence of P.W.24 and C.W.1 taken along with Ext.P15 though we are of the view that a more sincere and effective investigation could have been made by the investigating officer, namely, P.W.29. But, such lapses in the investigation need not affect the prosecution case when it is found that the opinion of the expert is convincing, cogent and is acceptable. True, it is for the court to assess the value of the evidence given by Crl.Appeal.760/2009. 93 an expert. But unless there are reasons to suspect the opinion or there are other grounds to show that the expert's opinion cannot be accepted, it will not be proper for any court to sideline the expert's evidence as opinion evidence carrying little value. Phipson on Evidence - 16th Edn. at page 1020 observes as follows:
"At the same time, courts have become much more dependent on expert testimony, and the accelerating process of scientific and technological advance enhances this tendency. It is only by the readiness of the courts to receive expert evidence and their ability to grapple with it that an enormous proliferation of specialised tribunals has been avoided. All this has entailed that lawyers and judges have had to become proficient in weighing competing expert evidence. In general, the Court of Appeal will be unwilling to interfere with a finding by a trial judge whereby he preferred the evidence of one expert to another, notwithstanding that the demeanour of the expert witness is not so important for the purpose of assessing his Crl.Appeal.760/2009. 94 credibility as it is in the case of a witness of fact. Nonetheless the Court will be prepared to intervene if the judge has clearly erred, and may be more willing to do so when the expert testimony in question concerns foreign law."
62. In the case on hand, the court below has given convincing reasons as to why it chose to accept the evidence furnished by P.W.24 and the opinion expressed in Ext.P15. We have the evidence of C.W.1 also before us, who corroborates the evidence of P.W.24 as well as the finding in Ext.P15. There is no justification or reason as to why their evidence should be discarded or why that evidence should not form the basis of conviction when it is established that M.O.17 partial denture was infact used by the accused beyond reasonable doubt. We find the evidence of P.W.24, C.W.1 taken along with Ext.P15 convincing, cogent and supported by scientific reasoning in arriving at the conclusion that M.O.17 was used by the accused. In Crl.Appeal.760/2009. 95 the light of the above evidence, the fact that prosecution has not examined any witness nor any witness examined has spoken to the fact that soon after the incident, they had noticed that the tooth of the accused was missing is of little consequence. To conclude, there is overwhelming evidence to show that M.O.17 was infact used by the accused.
63. Thus the two telling circumstances, namely, that the accused was seen going to the forest area to take the route which was usually taken by Minimol to go to the place of employment at about 6.30 a.m. on the date of the incident also and the evidence furnished by P.W.24 and C.W.1 taken along with Ext.P15 clearly lead to the irresistible conclusion that it was the accused and the accused alone was the perpetrator of the crime.
64. We therefore find that the court below was fully justified in coming to the conclusion that the prosecution has succeeded in establishing that it was the accused who had Crl.Appeal.760/2009. 96 committed the murder of Minimol. From the nature of the injuries which led to the death of Minimol, it is clear that the act of the accused fall within the ambit atleast under Clause Thirdly of Section 300 I.P.C. and none of the exceptions stipulated in Section 300 is attracted to the facts of the case. He was rightly found guilty of both the offences under Section 302 and Section 394 read with Section 397 I.P.C. We find no grounds to interfere with the conviction and sentence passed by the court below on any count.
This appeal is without merits and it is accordingly dismissed confirming the conviction and sentence passed by the court below.
M. SASIDHARAN NAMBIAR, JUDGE.
P. BHAVADASAN, JUDGE.
sb.