Madras High Court
Kumar vs State Rep. By on 23 April, 2008
Author: P.D.Dinakaran
Bench: P.D.Dinakaran, R.Regupathi
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.4.2008
CORAM
THE HONOURABLE MR.JUSTICE P.D.DINAKARAN
AND
THE HONOURABLE MR.JUSTICE R.REGUPATHI
Criminal Appeal No.792 of 2007
Kumar .. Appellant
Vs.
State rep. by
Superintendent of Police
Salem District
Salem. .. Respondent
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Appeal against the judgment dated 31.3.2004 made in S.C.No.56 of 2004 on the file of learned I Additional Sessions Judge, Salem.
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For Appellant : Mr.K.V.Sridharan
For Respondent : Mr.N.R.Elango
Addl. Public Prosecutor
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J U D G M E N T
P.D.DINAKARAN,J.
I Prologue Seldom, criminal trials bring before us persons, who are accused of acts of quivering barbarity. One such act is the offence of rape, which was more in tune with tribal society, and is in existence even now and calls for stringent punishment. This case is even more dreadful as the offence of rape was committed by the accused on his own sister-in-law, and the situation became much more worse, as the sister-in-law of the accused as well as her tiny tot, a thirteen months old girl baby were charred.
II Charge
2. The above-said ghastly incident was said to have taken place on 15.8.2003 within the jurisdiction of Yercaud Police Station. This horrifying issue, stimulated the Superintendent of Police, Salem District, P.W.31 to undertake investigation by himself and to register an FIR in Crime No.350 of 2003, initially for an offence punishable under Section 304-B, IPC, which was subsequently altered, pursuant to which the appellant was tried and thereafter, convicted and sentenced to undergo (i) seven years rigorous imprisonment with fine of Rs.5,000/-, in default, on year rigorous imprisonment for having committed the offence of rape on the deceased mother under Section 376, IPC; (ii) life imprisonment with fine of Rs.10,000/-, in default, one year rigorous imprisonment for having murdered the deceased mother and 13 months old girl baby under Section 302 (2 counts) IPC; (iii) two years imprisonment with fine of Rs.1,000/-, in default, one month rigorous imprisonment for having poured kerosene on the mother and 13 months old baby and set them on fire in order to screen the offence under Section 302 read with 201 (2 counts), IPC; and (iv) seven years rigorous imprisonment with fine of Rs.2,000/- in default, one year rigorous imprisonment for having caused criminal intimidation to P.W.2 under Section 506(2), IPC.
III The case of the prosecution
3. The prosecution case, as unfolded from the evidence, runs thus:
3.1. P.W.1, Chandrabose is the brother of the deceased. He deposed that the deceased was married to one Thiruselvam and she was living with her in-laws and brother-in-law as a joint family; after one year, the deceased gave birth to a female child; she was tortured to bring money from her parents to take care of her baby; after five/six months, she was tortured to bring money to redeem her jewels which were kept by them for the house expenses and therefore, she went to another brother's house at Yercaud and stayed there for 15 days; the father-in-law took her back assuring that it would not happen in future; two months prior to the date of occurrence, she called him over phone and stated that she was asked by her husband to bring Rs.10,000/- to live separately; she was repeatedly asking for the money since he could not arrange it immediately; on the date of occurrence, at about 2 pm, she called him over phone and enquired about him and asked him to bring money immediately; since she disconnected the phone immediately, he tried to contact her, but he could not; at once, he tried his elder brother and spoke to his sister-in-law P.W.3; he informed P.W.3 about the call by the deceased and asked P.W.3 to visit the place of the deceased and to inform him; at about 3.30 pm, his elder brother called him and informed that the deceased and her baby died due to burn injuries; he went to Yercaud at about 7 pm; he went and lodged a complaint Ex.P1 at Yercaud Police Station; after one week, it was published in the newspaper that the deceased had not committed suicide, but it was a murder; at that time, he was informed by P.W.3 that the deceased had stated to P.W.3 that the conduct of the accused towards her was not good and asked her not to inform her brothers to avoid consequences; his elder brother slapped P.W.3 for not informing him about the accused; on seeing the news article, he got a doubt as to why the deceased disconnected the call immediately on the date of occurrence; he informed the same to P.Ws.30 and 31 and also gave a copy of the telephone bill issued in the name of his owner, Ex.P2.
3.2. P.W.2, Selvi, Noon Meal Assistant, is a neighbour of the deceased. According to her, on the date of occurrence, she returned from the school at about 1.15 pm and was having lunch; around 1.30 pm, the accused called her and asked for little kerosene to clean the machine; since she was having lunch, she gave a 10 litres can containing 6/7 litres of kerosene; after ten minutes, the accused, who was standing at the back side of his house, called her; thinking that he would be returning the kerosene can, she went to his house; she was called inside the house where she noticed the deceased and her child were lying unconscious in the kitchen; when she asked the accused, he informed her that when he embraced the deceased, she did not accept and therefore, he hit on her head with conventional roti roller (for brevity, "poori kattai"), M.O.11 and hence, she fell unconscious and thereafter, he quenched his thirst by having intercourse with her; he wanted to create a scene as if the deceased committed suicide; then, he fisted the child, who was playing, on her face; he laid down the child near her mother; he caught hold of her neck and threatened her not to reveal to anybody, otherwise he would do away with her; he asked her to make call to P.W.1 and to talk like the deceased; he dialled the number and asked her to put her saree pallu on the mouth piece of the receiver; as tutored by the accused, she spoke to P.W.1 like the deceased and enquired him; she stated that she had been tortured for money and asked him to come within one hour, otherwise she would die; thereafter, she immediately disconnected the call; she was again threatened by the accused not to reveal the occurrence to anybody or otherwise, she would be done away in the same manner and her children would become orphans and asked her to leave the place; later, she left the place and returned to the house of the accused around 4pm, when she noticed the deceased and her child burnt and lying in the hall; she was shocked on seeing the deceased and the child burnt by the accused using the kerosene given by her; she was fearing that she may also be done to death in the same manner, she did not reveal anything about the occurrence to Revenue Divisional Officer, P.W.17; however, on 17.8.2003, when P.W.30 enquired, she informed everything; she also informed P.W.31 about the occurrence on 19.8.2003; she gave a statement, Ex.P14 under Section 164, Cr.P.C. before the Magistrate, P.W.15 on 25.8.2003.
3.3. As per the deposition of Mariyayee, P.W.3, sister-in-law of the deceased, there was a dowry demand by the family members of the deceased; after the deceased gave birth to a female child, she was tortured to bring money from her parents to take care of her baby; after five/six months, she was tortured to bring money to redeem her jewels which were kept by them for the house expenses and therefore, she went to another brother's house at Yercaud and stayed there for 15 days; the father-in-law took her back assuring that it would not happen in future; three months thereafter, she came to her house and stated that she was asked by her husband to bring Rs.10,000/- to live separately; the deceased was sent stating that they would arrange money after sometime; 15 days prior to the date of occurrence, the deceased came to her house and informed about the ill-behaviour of the accused towards her and asked her not to reveal the same to her brother; on the date of occurrence, at about 2.30 pm, P.W.1 called from Mettupalayam and informed her that the deceased called him and her family members were torturing her to bring money and asked him to bring money within one hour, otherwise, she would die along with her child; P.W.1 asked her to go to the place of the deceased and to bring her; when she tried the telephone number of the deceased, she was informed that the deceased and her child were dead; immediately on arrival of her husband, she informed him, who, in turn informed P.W.1; P.W.1 informed his brother not to take any action till his arrival; P.W.1 arrived at about 7 pm and thereafter, a complaint was lodged on the file of Yercaud Police Station; two weeks after the date of occurrence, she came to know from the newspaper that the deceased had not committed suicide, but it was a murder; two months thereafter, when she was enquired, she had stated all the details, including the ill-behaviour of the accused with the deceased; at that time only, she informed about the conduct of the accused towards the deceased to the members of the family; she was slapped by her husband for not telling the same earlier, who stated that he would have saved the deceased; that time, P.W.1 raised a doubt as to the voice of the deceased when she called on the date of occurrence.
3.4. The Councillor of Yercaud Town Panchayat, John Jakku, was examined as P.W.4. He deposed that he went to the house of the accused at about 1/1.15 pm and asked him to lay the pipeline, which the accused refused stating he had some other work. He then went to Block Development Office and on his return on the next day, he heard the death news of the deceased and her child.
3.5. Jayaprakash, a building contractor, examined as P.W.5, deposed that on 15.8.2003, at about 2/2.10 pm, when he went along with his brother Dhanapal for ordering Jalli, he saw the accused opening the gate and coming out of his house.
3.6. P.W.6, Sathish, who was running Coffee Works at Yercaud, stated that on the date of occurrence, at about 2.10 pm, the accused came to his shop and asked him to drop him at Electrical shop to purchase electrical goods. Accordingly, he dropped the accused at Krishna Electricals. After purchasing some goods, the accused asked him to drop him at Sister Convent. While going, the accused asked him to drive fast. When he enquired as to the urgency, the accused told him that he committed a small mistake and he would tell the same later and he got down at Sister Convent.
3.7. Shanmugam was examined as P.W.7. He was working at Krishna Electricals. He stated that on the date of occurrence, the accused, along with another person, came in a motor cycle between 1.15 and 2.30 pm and purchased three electrical goods for Rs.608/- on credit and left immediately. The carbon copy of the bill with regard to the electrical goods purchased by the accused is marked as Ex.P3. Later he came to know that the accused had murdered his sister-in-law and her child.
3.8. P.W.8, Vigneshwaran, was working as Supervisor in St. Annis Convent. On the date of occurrence, at about 9.30 am, both the accused and Thiruselvam came to work. At about 12.45 pm, he asked another Supervisor that he required some electrical goods and left the School. Later, the accused came around 2.45/3.00 pm with electrical goods. After some time, four people came in two wheeler and asked him to send the accused and Thiruselvam.
3.9. P.W.9, Banumathi, Scientific Officer, Forensic Science Department, Chennai deposed that as per the requisition made by the Court, Ex.P4, she examined M.Os.1 and 4 to 9 and it was detected that the said M.Os. contained Kerosene. The report of the Scientific Officer is Ex.P5.
3.10. P.W.10, Sivakumar, Scientific Officer issued a report Ex.P6, stating that M.O.10, Kerosene Pump Stove, was not in usable condition.
3.11. As per Ex.P7, requisition sent by the Court, P.W.11, Kamalatchi Krishnamoorthy, Scientific Officer, examined M.O.15, brief, and detected semen in it as per Ex.P8, Chemical Report and sent the sample blood and salavai to Serological Department. Ex.P9 is the Serologist's Report stating that the sample sent was of human origin.
3.12. P.W.12, Ravi, an LIC Agent, deposed that when he returned home on 15.8.2003, the wife of one Sekar asked him to inform about the death of the deceased and her child to Thiruselvam. As he does not know as to where Thiruselvam was working, he enquired P.W.6 and thereafter went to Annis Convent and brought Thiruselvam and the accused, around 3/3.30 pm. 3.13. P.W.13 Selvam, a resident of North Street, Periyapudhur, deposed that he, along with one Palanisamy, was present at the time when the accused was giving confession statement to P.W.31, Superintendent of Police to the effect that he would hand over the poori kattai, brief and telephone note book to the police and the admissible portion of his confession statement is Ex.P10.
3.14. As requested by the Judicial Magistrate V, Salem, in Ex.P.11, to give a computer print-out relating to telephone No.222612 of Yercaud Telephone Exchange for the month of August 2003, P.W.15, Selladurai, an employee of Yercaud Telephone Exchange, had issued Ex.P.12 report stating that the said telephone belongs to Thiruselvam and the same was working in a good condition between 5.8.2003 and 31.8.2003. Ex.P13 is the computerised bill for the telephone No.222612 of Yercaud Telephone Exchange.
3.15. As directed by the Chief Judicial Magistrate, Salem, P.W.15, Judicial Magistrate II, Salem, recorded a statement under Section 164 Cr.P.C. as deposed by P.W.2 on 25.8.2003. The said statement is marked as Ex.P.14.
3.16. P.W.16, Ettiyappan, Scientific Officer, has deposed that he inspected the scene of occurrence on 16.8.2003 at 7 am. He saw the burnt bodies of the deceased and her child in the hall.
3.17. P.W.17, Revenue Divisional Officer, on receipt of FIR, conducted inquest over the dead bodies and submitted his report Ex.P17. He sent the body for post mortem through P.W.25, Head Constable. He also sent a report, Ex.P16 to the Judicial Magistrate stating that the death of the deceased and her child was not due to dowry harassment and for further action.
3.18. The Village Administrative Officer, P.W.18, on hearing that the house of Krishnan caught fire, at about 2.15 pm, went along with one Duraisamy, Village Assistant to the place of occurrence. He peeped inside through the glass window, which seems to be broken due to the heat, and saw the room with full smoke. When he touched the front side door to go inside the house, it opened immediately since it was not latched inside. In the middle portion of the house, he saw two dead bodies in burnt condition and he smelt kerosene odour through out the house. He informed about the occurrence to his higher officials. In his presence, P.W.30, Deputy Superintendent of Police, prepared observation mahazar, rough sketch and recovery mahazar and he had attested his signature in those documents. He also issued Ex.P21 Nativity Certificate with regard to the deceased family.
3.19. P.W.19, Dr.Ravi Shankar, attached to Mohan Kumaramangalam Medical College, Salem deposed that he examined the hyoid bone of the deceased and found no fracture. Ex.P.22 is the report given by him.
3.20. As per requisition Ex.P23 made by P.W.31, P.W.20, Dr.Vallinayagam, attached to Government Mohan Kumaramangalam Medical College, examined the accused, found a lacerated injury on the left collar bone 0.5 cm and issued Ex.P25, wound certificate. In his evidence, he deposed that the said injury might be caused due to finger nail scratch. As per requisition Ex.P24 made by the Judicial Magistrate V, Salem, he examined the accused and opined that there is nothing to suggest that he is impotent and issued Ex.P26.
3.21. P.W.21, Magisterial Clerk, speaks about the receipt of material objects and sending the same for chemical analysis. Ex.P27 is the covering letter of the Court and Ex.P28 is the chemical analysis report.
3.22. P.W.22 is the Judicial Magistrate V, Salem, who remanded the accused to judicial custody on the requisition made by P.W.31.
3.23. As per the requisition Ex.P30 made by P.W.31 through the Chief Judicial Magistrate, Salem, P.W.23, Judicial Magistrate VI, Salem recorded statements of P.Ws.3, 5, 6, 7 and 8 and others under Section 164 Cr.P.C. Exs.P31 to P43 are the said statements.
3.24. The Doctor, P.W.24, on receipt of requisitions, Exs.P44 and P45, by P.W.17 for post mortem of the bodies of the deceased and her child, conducted post mortem and issued certificates Exs.P46 and P47 opining that the deceased appears to have died of shock following head injury and shock following burns and her child appears to have died of burns shock.
3.25. P.W.25, Head Constable, deposed that he took the bodies for post mortem to Government Hospital, Yercaud and entrusted the bodies to their relatives after autopsy.
3.26. As directed by P.W.31, P.W.26, Photographer, took photos at the scene of occurrence. Exs.P48 series are photos and Ex.P49 series are their negatives.
3.27. P.W.27, Sub Inspector of Police, on receipt of information, went to the place of occurrence at 3 pm. He saw the burnt bodies of the deceased and her child, surrounded by lot of people. Around 8 pm, P.W.1 gave a written complaint, Ex.P1 and registered the FIR, Ex.P50, in Crime No.350 of 2003 for the offence under Sections 304-B and 498-A, IPC. F.I.R. was sent to the Revenue Divisional Officer, P.W.17, as well as to the Deputy Superintendent of Police, P.W.30, for further action, since the occurrence took place within two years from the date of marriage of the deceased.
3.28. As per Ex.P51, requisition made by P.W.31, P.W.28, District Revenue Officer, examined the accused and recorded Ex.P52 confession statement in video through P.W.29 Police Videographer. Ex.P57 is the video cassette.
3.29. The Videographer, who was examined as P.W.29, deposed that on instructions from P.W.31, he took video at the time of enquiry and took photo of the accused, before recording the video. Ex.P55 is the photo of the accused. Ex.P56 is the negative. Ex.P57 is the video cassette. Print of Ex.P57 is Ex.P58.
3.30. P.W.30, the Deputy Superintendent of Police, deposed that on receipt of Ex.P50, F.I.R, he went to the place of occurrence, along with Scientific Officer, P.W.16 and obtained his opinion. He prepared an Observation Mahazar, Ex.P18 and a Rough Sketch, Ex.P59. He caused photographs of the dead bodies, Ex.P55 series, through P.W.26, photographer. He recovered M.Os.1, 4 to 10 under Mahazar, Ex.P19, in the presence of P.W.18, Village Administrative Officer and his menial. He also examined the witnesses and recorded their statements. After getting opinion from the doctors who conducted autopsy, he altered the charges under Section 302 and 376, IPC and sent the altered FIR, Ex.P60, to the Judicial Magistrate.
3.31. P.W.31, the Superintendent of Police, Salem, in his evidence, narrated the investigation undertook by him. According to him, he went to the scene of occurrence and examined P.Ws.2 and 4 and the relatives of the deceased orally. On 20.8.2003 at about 12.30 p.m. the Inspector of Police arrested the accused and produced him before P.W.31 at 1.30 p.m. P.W.31 examined the accused and found a finger nail scratch on the left side of his collar-bone, for which, he got medico legal opinion through P.W.20. He recorded the confession statement given by the accused in the presence of Sellam and Palanisamy in writing and through P.W.29, Police Videographer. On 21.8.2003, at 7.00 a.m. he recovered the wood used for preparing rotis along with poori kattai, M.O.11, full hand white colour shirt, pant and brief on being produced by the accused from kitchen in the presence of witnesses. He also seized indane gas cylinder, regulator, gas tube and double door in the presence of Selvam and Palanisamy. He remanded the accused to police custody. On 22.8.2003, he examined Sukumar, Inspector and recorded his statement. On 23.8.2003, he examined P.W.3 and recorded her statement. On 24.8.2003, he examined P.Ws.6,7, 8 and 12 and others and recorded their statements. On 25.8.2003, he examined the prisoners viz., Krishnan @ Venkatachalam, Sellammal and Thiruselvam, who are father, mother and brother of the accused respectively, and recorded their confession statements. He examined P.W.18 and got residential proof of the deceased family. He examined father, mother and brother of P.W.3 Selvi and recorded their statements. He also examined P.W.2 and recorded her statement through video. On 1.9.2003, he sent the accused to judicial custody. On 2.9.2003, he examined P.W.22, Judicial Magistrate and recorded his statement. On 10.9.2003, he examined P.W.20, Dr.Vallinayagam and recorded his statement. He sent M.O.15 brief to the Court for chemical examination through Ex.P.61 requisition. Thereafter, he sent Ex.P30 requisition for recording statements of the witnesses under Section 164 Cr.P.C. On 18.9.2003, he sent the material objects to the Court for subjecting the same to chemical analysis. On 16.10.2003, he examined post-mortem doctors and recorded their statements. He also enquired P.W.14, Telephone Subdivisional Engineer with regard to the working condition of the telephone No.222612. He also examined P.W.1, Thangavel, brother of P.W.1 and P.W.3 and recorded their statements. He also examined P.W.7 Shanmugam in respect of the electrical goods sold to the accused and seized the credit bill and recorded his statement. He also recovered the telephone bill for the month of September for Telephone No.222032. After completing the investigation, he filed a charge sheet against the accused under Sections 506(i), 376 and 302 read with 201 (2 counts) IPC and also filed a separate charge sheet against Thiruselvam, accused, Krishnan @ Venkatachalam and Selvam under Section 498(A) I.P.C.
3.32. The case was committed to the Court of Sessions and charges were framed and since the accused denied his complicity in the offence, the case was taken up for trial. In order to substantiate the charges levelled against the accused, the prosecution examined P.Ws.1 to 31, filed exhibits P1 to P66 and marked material objects M.Os.1 to 20.
3.33. On completion of the examination of the prosecution witnesses, the accused was questioned under Section 313, Cr.P.C. on the incriminating materials for which the accused denied any complicity in the offence committed and claimed innocence. On the side of defence, D.Ws.1 to 4 were examined and Exs.D1 to D11 were filed.
3.34. D.W.1 is a Court Clerk who stated that the F.I.R. in the case was received by the court on 18.08.2003.
3.35. D.W.2, sister of the accused, deposed that the deceased called her on 13.3.2008 and stated that when she went to her brother's house for asking Rs.10,000/-, her brother and her sister-in-law refused to give money and sent her out of their house forcibly. She further stated that at about 9 am on the date of occurrence, the deceased called her over phone and stated that she does not like to live due to the distress caused by the scolding of her brother and sister-in-law.
3.35. D.W.3, Manger of Indian Bank, Mechery Branch, deposed that the accused came to the bank on 20.8.2003, the accused came to the Bank between 10 am to 2pm and redeemed the jewels pledged in the Bank.
3.36. D.W.4, who was working as the Sub Divisional Engineer (Legal), BSNL, deposed that no outgoing STD call was made from telephone No.222032 in August, 2003, as per the magnetic tape maintained by the Exchange for registering all the STD outgoing.
3.37. The Court examined one Francis as C.W.1, who deposed that on hearing noise from the house of the deceased, he saw the smoke emanating from the house of the deceased. He went to the house of the deceased and saw the window glass broken due to the heat and since some people were standing in front of the house, he climbed up the roof of the house and removed the tiles in order to enter into the house and saw the bodies of the deceased and her child in the hall.
IV VERDICT of the Trial Court
4. The learned I Additional Sessions Judge, Salem, upon appreciation of the evidence and hearing both sides, convicted and sentenced the accused as aforementioned. Hence, the above appeal.
V Contentions of the appellant
5. Mr.K.V.Sreedharan, learned counsel for the appellant, challenges the order of conviction and sentence as follows:
(a) The statement of P.W.2 made to the Deputy Superintendent of Police, P.W.30, when she was examined on 17.8.2003, about the extra judicial confession made to her by the appellant, threatening her and making her to call to the brother of the deceased, P.W.1, cannot be relied, as, she had not disclosed the same to P.W.17, Revenue Divisional Officer, when she was examined initially on 16.8.2003 and her statement was recorded as Ex.D7.
(b) The case of the prosecution rests upon the complaint Ex.P1 given by P.W.1. In the said complaint, P.W.1 had not uttered anything about the conduct of the accused towards the deceased. But, P.W.1 had chosen to come with a new case that the accused had ill-intention towards the deceased and the same was complained by the deceased to her sister-in-law, P.W.3. Therefore, the subsequent stand taken by P.W.1 is not sustainable.
(c) Similarly, P.W.3, when she was examined on 16.8.2003 by P.W.17, Revenue Divisional Officer, had not stated anything about the conduct of the accused. But, when she was enquired after two months, she had stated that on seeing the article in the newspaper that the death of the deceased is not suicide, but homicide, recalled the statement made by the deceased to her 15 days prior to the date of occurrence. Therefore, the said delay of two months would make the evidence of P.W.3 also, unreliable.
(d) Further, P.Ws.4 to 8, who spoke about the movement of the accused on the date of occurrence, are not reliable witnesses, as they were examined after a period of 10/15 days.
(e) The carbon particles found deposited more in the kitchen, than in the hall, would prove that the deceased had committed suicide along with her child, as it is supported with the fact that the tiles in the kitchen alone were removed and also by the evidence of P.W.1 who had stated that the deceased called him and stated that she would commit suicide if he did not reach her place within one hour with money. Therefore, there is a possibility that the people who entered the house, after gaining the entry, would have removed the body to the hall, and accordingly, the deceased had committed suicide only and the offence under Section 302, IPC is not made out.
(f) From the statement of D.W.2, sister of the accused, that two days prior to the date of occurrence, the deceased called her over phone and informed that her brother refused to give money and scolded her and on the morning of the date of occurrence, she informed that she was very much dejected and she did not want to live, it can be clearly elucidated that the deceased had only committed suicide.
(g) Alternatively, since the death of the deceased and her child was due to burn injuries and the accused has no motive to commit the murder of the deceased and her child, it can be assumed that the accused wanted only to screen the offence. Therefore, the offence under Section 302, IPC is not made out.
(h) Finally, the offence under Sections 376, 302 (2 counts) and 302 read with 201, IPC has not been proved with medical evidence and beyond any reasonable doubt and therefore, conviction and sentence have to be set aside.
VI Resistance by the State
6. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor, rebutting the contentions of the learned counsel for the appellant, submits as under:
(a) P.W.2 was examined by P.W.17, Revenue Divisional Officer on 16.8.2003. But, in her statement made to P.W.30, Deputy Superintendent of Police, she had stated about the extra judicial confession made to her by the accused and the threat caused by the accused that he would do away with her in the same manner like the deceased if she reveals the same to anyone and also made her to impersonate as the deceased over phone to P.W.1. The above fact would make it clear that due to the fear by the threatening of the accused, P.W.2 would not have informed P.W.17 on the earlier day. Therefore, the same would not make her evidence unreliable, as she is the only witness who saw the deceased and her child in the kitchen before they were burnt and in the hall after they were burnt.
(b) P.W.1 was informed by P.W.3 about the conduct of the accused towards the deceased only after the publication of article in the newspaper that the death of the deceased is not by suicide, but homicide. Had P.W.1 known the fact before itself, he would have stated it in his complaint Ex.P1 itself. Further, since he received a call at about 2.00 pm on the date of occurrence from P.W.2, who impersonated as the deceased, P.W.1 had the suspicion that she would have committed suicide due to dowry harassment. After coming to know about the conduct of the accused, P.W.1 stated the same to P.W.31, Superintendent of Police. Therefore, the evidence of P.W.1 cannot be stated as untrustworthy.
(c) P.W.3 was of the opinion that the death of the deceased and her child was due to dowry harassment and she had no doubt that it was homicide. On seeing the article in the newspaper that the death was homicide, she recalled about the statement made by the deceased with regard to the conduct of the accused 15 days prior to the date of the occurrence. The same, however, would not render the evidence of P.W.3 undependable on the ground that it was given after two months.
(d) P.Ws.4 to 8 speak about the movement of the accused just prior to the occurrence and immediately after the occurrence and at the place of the occurrence. The delay in obtaining their evidence was due to the fact that the case was initially registered for the offence under Section 304-B and 498-A, IPC and only later, it was registered for the offence under Sections 376, 302, 302 read with 201, IPC. Moreover, they are not eye witnesses to the occurrence. Further, the Investigation Officer was not cross examined with respect to the delay in examining those witnesses. Therefore, the delay in examining P.Ws.4 to 8 would not make their evidence unbelievable.
(e) As per the evidence of C.W.1, who removed the tiles of the house of the deceased, the bodies of the deceased and her child were found in the hall only. This is strengthened with the statement of P.W.2, who witnessed the bodies in the kitchen before they were burnt and in the hall, after they were burnt. Even though the carbon particles were found deposited in the kitchen, the same would not change the nature of offence, because, P.W.16, Scientific Officer and P.W.24, Doctor, who conducted autopsy, were of the opinion that it was not suicide since the hair in the crown and back of the head, back side of the body and soles were not burnt. Therefore, the offence under Section 302, IPC is made out.
(f) If the statement of D.W.2 is true that the deceased informed her that she was very much depressed on the morning of 15.8.2003, viz. date of occurrence and therefore, she did not want to live, naturally D.W.2 should have informed the same to her brother and parents. Failure to do the same would make it clear that D.W.2 would have also joined along with her brother in demanding money and therefore, the contention that the deceased had committed suicide has to be rejected.
(g) P.W.2 had deposed about the extra judicial confession made by the accused that he had an eye over the accused and since the deceased refused to heed his wish, he hit the deceased on her head and when the deceased fell unconscious, the accused committed the offence under Section 376, IPC. P.W.2 also witnessed the deceased and her child lying in the kitchen before being burnt and in the hall after they were burnt. This would prove the motive of the accused and clearly establishes the offence under Section 302, IPC.
(h) The offence under Section 376, IPC is proved by the evidence of P.W.2 wherein she had stated about the extra judicial confession made by the accused, which corroborates with Ex.P25, the certificate issued by P.W.20, Doctor who examined the accused and certified that there was a simple injury which might be due to a finger nail scratch and the evidence of P.W.11, Kamalatchi Krishnamoorthy, Scientific Officer, who examined M.O.15, brief, and detected semen in it as per Ex.P8, Chemical Report.
(h) In support of his contention that the evidence of P.W.3 with regard to the statement made by the deceased to her about the conduct of the accused is admissible, the learned Additional Public Prosecutor places reliance on the following decisions:
(i) Narayana Swami v. Emperor [AIR 1939 P.C. 47]; and
(ii) Sharad Birdhichand Sarda v. State of Maharashtra, 1984 SCC (Cri) 487].
VII (A) - Consideration 7.1. We have given careful consideration to the submissions of both sides. We have also perused the entire materials on record.
7.2. Before proceeding further, it is apt to refer the law laid down and the tests to be adopted for placing reliance on the extra judicial confession and the circumstantial evidence.
VII (B) Law on the reliability of extra judicial confession 8.1. The prosecution mainly depends on the extra judicial confession of the accused made to by P.W.2, neighbour and P.W.28, District Revenue Officer. The law is well settled as to what extent extra judicial confession can be relied on.
8.2. An extra-judicial confession can be relied upon by the court, if the same is voluntary and true and made in a fit state of mind. However, the confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility, vide State of Rajasthan v. Raja Ram [2003 SCC Crl. 1965].
8.3. Accordingly, we shall examine whether the extra judicial confession of the accused satisfies the three tests, viz.
(i) to whom the said extra judicial confession is made?;
(ii) whether the evidence of the person to whom the extra judicial confession is made inspires the confidence of the Court?; and
(iii)whether the extra judicial confession is consistent to the prosecution case?
8.4. In the case on hand,
(i) The extra judicial confession was made by the accused to P.W.2, neighbour and P.W.28, District Revenue Officer.
(ii) The accused had taken kerosene from P.W.2, neighbour stating that it was required for cleaning the machine. Thereafter, when P.W.2 came out of her house, she was called by the accused to his house, where she witnessed the deceased and her child lying unconscious in the kitchen. When she questioned the accused, he confessed to her about the occurrence and thereafter, made her to speak to P.W.1 impersonating the deceased, by threatening her. She is the only witness who saw the deceased and her child in the kitchen before being burnt and in the hall, after they were burnt. Moreover, the accused has confessed to her about his commission of offence under Section 376, IPC immediately and wanted to simulate as if the deceased committed suicide. The evidence of P.W.2 is natural and inspires the confidence of the Court, since the same is exactly in consonance with the confession made by the accused to P.W.28, District Revenue Officer. Therefore, we are convinced with the credibility of the evidence and accordingly, the extra judicial confession merits acceptance.
(iii) The extra judicial confession made by the accused, as spoken to by P.W.2 which is in consonance with the confession made by the accused to P.W.28, is consistent with the case of the prosecution.
8.5. We are, therefore, satisfied that the evidence of P.W.2 has been convincing, consistent and plausible and stands to the three tests cited above and hence, there is no room to doubt the said extra judicial confession.
VII (C) Law on Circumstantial Evidence 9.1. On the circumstantial evidence, the Apex Court in Liyakat v. State of Uttaranchal [2008 AIR SCW 1678] held as under:
"13. Before analysing the factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
14. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, 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. (See Hukam Singh v. State of Rajasthan (1977)2 SCC 99), Eradu v. State of Hyderabad (AIR 1956 SC 316), Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330], State of U.P. v. Sukhbasi [AIR 1985 SC 1224], Balwinder Singh v. State of Punjab[AIR 1987 SC 350] and Ashok Kumar Chatterjee v. State of M.P. [AIR 1989 SC 1890]. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab [AIR 1954 SC 621] it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
15. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. [1996 (10) SCC 193] wherein it has been observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
16. In Padala Veera Reddy v. State of A.P. [AIR 1990 SC 79] it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10):
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
17. In State of U.P. v. Ashok Kumar Srivastavaii [1992(2) SCC 86] it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
18. Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence:
"(1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits;
(4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
19. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
20. In Hanumant Govind Nargundkar v. State of M.P. [AIR 1952 SC 343] it was observed thus: (AIR pp. 345-46, para 10) "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 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."
21. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622]. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(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.
22. The above position was highlighted in State of Rajasthan v. Raja Ram [2003(8) SCC 180].
(emphasis supplied) 9.2. We shall, therefore, deal with various circumstances relied upon by the prosecution, in the light of the above principles.
VII (D) - Circumstances 10.1. The case of the prosecution, of course, is not based on the evidence of eye-witness, but on the circumstantial evidence. While P.Ws.1 to 3 speak about the motive, P.Ws.4 and 5 speak about the movement of the accused near the scene of occurrence and P.Ws.6 to 8 speak about the absence of the accused in the school where he was working, at the relevant time.
10.2. The chain and the links, which constitute the circumstances to bring home the guilt of the accused, are as under:
(i) the accused had an ill-intention to commit rape on the deceased;
(ii) he had chosen the time when the deceased was alone in the residence and left the school and came to the residence;
(iii) he hit the deceased with poori kattai, M.O.11 and when the deceased fell unconscious, he committed the offence under Section 376, IPC;
(iv) he fisted the child on her face and on her becoming unconscious, laid her near the deceased;
(v) he threatened P.W.2 with dire consequences and made her to speak to P.W.1, impersonating the deceased, in order to make the death of the deceased and her child as a suicide;
(vi) in order to screen the offence, he took kerosene from P.W.2 and poured the same on the deceased and her child and thereafter, set them on fire;
(vii) he was seen in the place of occurrence by P.W.4 at about 1/1.15 pm, viz. before the time of occurrence;
(viii) his leaving the scene of occurrence by opening the gate of his house, around 2/2.10 pm, was witnessed by P.W.5 and his brother;
(ix) at about 2.10 pm, after purchasing electrical goods, he had stated to P.W.6 that he had committed a small mistake and would tell the same later and thereafter, went to Sister Convent;
(x) his presence and purchase of electrical goods at Krishna Electricals is spoken to by P.W.7 ; and
(xi) his absence in the School, where he was working, from 12.45 pm to 2.45/3 pm was spoken to by P.W.8.
VII (E) - Offence under Section 376, IPC 11.1. It is true that P.W.2, neighbour, was examined by P.W.17, Revenue Divisional Officer on 16.8.2003 and at that time, she had not stated anything about the extra judicial confession or threat by the accused. But, in her statement made to P.W.30, Deputy Superintendent of Police, she had stated about the extra judicial confession made to her by the accused that when he embraced the deceased, she did not accept and therefore, he hit on her head with poori kattai, M.O.11 and when she fell unconscious, he quenched his thirst by having committed the offence under Section 376, IPC and since he wanted to simulate as if the deceased committed suicide, he fisted the child, who was playing, on her face and laid her near her mother. Further, the accused caught hold of her neck and threatened her not to reveal to anybody, and otherwise he would do away with her in the same manner like the deceased and he also asked her to call P.W.1, brother of the deceased and to impersonate like the deceased by putting her saree pallu on the mouth piece of the receiver. P.W.2 spoke to P.W.1, as tutored by the accused, that she had been tortured for money and asked him to come within one hour, or otherwise she would commit suicide. Since the accused threatened her, fearing danger to her life, P.W.2 would not have informed P.W.17 on the earlier day. The conduct of P.W.2 is quite natural and is that of a normal prudent person. Therefore, there is no reason to reject her evidence as unreliable.
11.2. Further, in his evidence, P.W.1 had stated that the deceased called him and asked him to come with money within one hour, otherwise, she would commit suicide. Immediately, P.W.1 called his brother's residence and spoke to his sister-in-law, P.W.3 about the telecon by the deceased and asked her to visit the place of the deceased and to inform him. P.W.3 also, in her evidence, stated that P.W.1 called her and stated about the telecon of the deceased. Hence, the evidence of P.W.2 is corroborated by the evidence of P.Ws.1 and 3 insofar as the call made by P.W.2 impersonating the deceased is concerned. Therefore, the evidence of P.W.2 cannot be rejected.
11.3. In the extra judicial confession made by the accused to P.W.2, he had stated that when he embraced the deceased, she did not accept and therefore, he hit on her head with poori kattai, M.O.11 and when she fell unconscious, he quenched his thirst by committing the offence under Section 376, IPC. The above statement is corroborated by the wound certificate Ex.P25 certifying that there was a simple injury and opining that it might be due to a finger nail scratch. The possibility that finger nail mark on the left clavicular region would have been caused on the accused by the deceased only when the deceased tried to resist the accused from committing the offence under Section 376, IPC cannot be ruled out. Ex.P8, Chemical Report certifying that M.O.15, brief, contained semen also strengthens the offence under Section 376, IPC. The contention that no medical evidence was adduced to prove the offence is not sustainable, because, the Doctor, P.W.24, who conducted autopsy had stated that due to extensive second degree burns over the front on all the parts of the body, he could not trace out the symptoms for the commission of offence under Section 376, IPC.
11.4. Besides, the motive for commission of the offence under Section 376, IPC is also proved by the evidence of P.W.2, P.W.3 and P.W.1. P.W.2 deposed about the extra judicial confession made by the accused that he had an eye over the deceased and since no body was in the house on the date of occurrence and the deceased refused to heed his wish, he committed the offence under Section 376, IPC, after hitting her on her head. P.W.3, in her evidence, stated the deceased had complained to her, 15 days prior to the date of the occurrence, about the conduct of the accused towards her, which is corroborated by the evidence of P.W.1, who also stated about the conduct of the accused. Therefore, we do not see any merit in the contention that the evidence of P.W.3 and P.W.1 is unreliable.
11.5. That apart, in Narayana Swami v. Emperor [AIR 1939 P.C. 47], it is held as under:
""Circumstances of the transaction" is a phrase no doubt that conveys some limitations. It is not as broad as the analogous use in "circumstantial evidence" which includes evidence of all relevant facts. It is on the other hand narrower than "res gestae." Circumstances must have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant. It is not necessary that there should be a known transaction other than that the death of the declarant has ultimately been caused, for the condition of the admissibility, of the evidence is that "the cause of (the declarant's) death comes into question".
(emphasis supplied) 11.6. At this juncture, it is relevant to take note of Section 32 of the Indian Evidence Act, 1872 which deals with cases in which statement of relevant fact by a person who is dead or cannot be found, etc. is relevant. The general rule is that all oral evidence must be direct viz. if it refers to a fact which could be seen it must be the evidence of the witness who says he saw it, if it refers to a fact which could be heard, it must be the evidence of the witness who says he heard it, if it refers to a fact which could be perceived by any other sense, it must be the evidence of the witness who says he perceived it by that sense. Similar is the case with opinion. The clauses of Section 32 are exceptions to the general rule against hearsay just stated.
11.7. It is settled law that if the statement relates to the cause of death or exhibits circumstances leading to the death, the evidence of hearsay is also admissible as per Section 32 of the Indian Evidence Act. But, the said statement, which is made before the cause of death has arisen or before the deceased has any reason to anticipate being killed the same, is admissible only if the circumstances have some proximate relation to the actual occurrence. The evidence, which consists the statements made by the deceased, relating to her death and reveal a tell-tale story, cannot be ignored or made irrelevant due to the distance of time. In exceptional circumstances, such evidence is admissible if it raises a doubt about the guilt of the accused. It is not necessary that it should prove the positive fact, vide Sharad Birdhichand Sarda v. State of Maharashtra [1984 SCC (Cri) 487].
11.8. In the light of the ratio laid down in the decisions cited supra, we are convinced that the evidence of P.W.3, which is corroborated by the evidence of P.W.1, with regard to the statement made by the deceased about the conduct of the accused towards her is admissible, even though it is made after two months from the date of occurrence. Hence, there is no good enough reason to reject the testimony of P.W.3, since it proves the motive of the accused for the commission of the offence under Section 376, IPC.
11.9.1. Now, the question that arises for our consideration is whether the prosecution has proved the link between the chain of circumstances referred to above or not, to substantiate the offence punishable under Section 376, IPC, beyond all reasonable doubts?
11.9.2. The evidence of P.Ws.1 and 3 is in one voice qua the conduct of the accused towards the deceased to quench the thirst of lust is concerned. In fact, the deceased herself had shared her worries about the ill-behaviour of the accused towards her to P.W.3, during her last visit to the residence of P.W.3, and also requested P.W.3 not to inform to her brother, viz. husband of P.W.3, fearing future consequences. After the occurrence, when P.W.3 informed about the statement of the deceased, her husband slapped her for not informing the same earlier. With this back ground, the extra judicial confession made by the accused, as spoken to by P.W.2, stands corroborated by the evidence of P.Ws.1 and 3 as to the motive for the commission of offence under Section 376, IPC.
11.9.3. To quench the thirst of lust, the accused had chosen the time when the deceased was alone at the residence, left the school as spoken to by P.W.8, viz., the accused was absent from the School from 12.45 pm to 2.45/3 pm. Apart from proving his absence in the School, the prosecution has also substantiated the presence of the accused in the place of occurrence through the evidence of P.W.4, Councillor of Yercaud Town Panchayat who saw the accused in his house between 1 and 1.15 pm. Substantiating the evidence of P.Ws.8 and 4, P.W.5, building contractor, deposed that he saw the accused opening the gate and coming out of his house around 2/2.10 pm. Thereafter, the accused was found at the shop of P.W.7, who deposed that the accused came along with P.W.6 to purchase electrical goods, which is strengthened with the copy of the bill, Ex.P3. P.W.6 deposed that the accused, after purchasing electrical goods from the shop of P.W.7, stated that he committed a small mistake.
11.9.4. If the accused left the School at 12.45 pm only to purchase electrical goods, he would have straight away gone to the shop of P.W.7 and returned to the School, immediately after his purchase and in which event, P.Ws.4 and 5 would not have seen the accused at the place of occurrence at about 1/1.15 pm and 2/2.10 pm respectively, nor P.W.6 would have taken him to the shop of P.W.7, to whom the accused had stated that he committed a small mistake.
11.9.5. The prosecution has, therefore, rightly proved the links between the chain of circumstances that the accused had ill intention towards the deceased and chosen the convenient time for the commission of offence under Section 376, IPC and accordingly, left the School at 12.45 pm, went to the residence and since the deceased did not heed to his desire, he hit on her head with poori kattai, M.O.11 and when she fell unconscious, he committed the offence, left the house by opening the gate, which was seen by P.W.5 and went to the shop of P.W.7 along with P.W.6 and thereafter, returned to the School.
11.10. From the above discussion, we are satisfied that the offence under Section 376, IPC has been made out.
VII (F) - Offence under Section 302, IPC 12.1. The next question that arises is whether the prosecution has proved or not the links between the next chain of circumstances, viz. fisting the child on her face and on her becoming unconscious, laying her near the deceased and thereafter, murdering them and threatening P.W.2 with dire consequences and making her to speak to P.W.1 impersonating the deceased in order to make the death of the deceased and her child as a suicide, to substantiate the offence under Section 302, IPC beyond all reasonable doubts?
12.2. According to P.W.2, the accused asked her some kerosene to clean the machine. Since P.W.2 was having lunch, she has given 10 litres capacity can containing around 6/7 litres of kerosene to the accused. After some time, the accused, who was standing at the back side of the house, called P.W.2. As soon as P.W.2 entered the house, she found the deceased and her child were lying unconscious in the kitchen. When she enquired the accused, he stated that when he embraced the deceased, she did not accept and therefore, he hit on her head with poori kattai, M.O.11 and when she fell unconscious, he quenched the thirst of lust by committing the offence under Section 376, IPC and since he wanted to simulate the occurrence as if the deceased committed suicide, he fisted the child, who was playing, on her face and laid her near her mother. Thereafter, P.W.2, made call to P.W.1 impersonating the deceased, being threatened by the accused that he would do away with her in the same manner like the deceased if she tells to anybody about the occurrence, and later left the scene of occurrence. Around 4 pm, when she came to know that the deceased and her child were burnt, she went to the house of the deceased and witnessed the burnt bodies of the deceased and her child in the kitchen. From the above, it can be elucidated that the accused had poured kerosene on the deceased and her child, who were unconscious and set them on fire. Accordingly, the accused had committed the offence under Section 302, IPC.
12.3. P.W.2 is the only witness who saw the deceased and her child lying in the kitchen, when she was called by the accused and thereafter, found the burnt bodies of the deceased and her child in the hall. The said portion of her evidence derives strength from the evidence of C.W.1 who deposed that he removed the tiles of the house of the deceased and thereafter, when he entered the house after the public gained entry, he saw the bodies of the deceased and her child in the hall only. Therefore, the contention that the deceased had only committed suicide and thereafter, the people who entered inside the house would have brought the bodies to the hall, cannot be sustained, as the stove, gas cylinder and other things in the kitchen were found intact. Moreover, the doors of the house were found to be unlocked. Thus, after committing the offence under Section 376, IPC the accused would have brought the deceased and her child to the hall and would have poured kerosene and set them on fire. Hence, the contention that the carbon particles were found deposited more in the kitchen than in the hall also cannot be accepted, because, the house of the deceased was very small and therefore, there is possibility for the deposit of carbon particles in the kitchen. However, the deposit of carbon particles in the kitchen would not change the nature of offence.
12.4. That apart, as per the statement of P.W.6, at about 2.10 pm on the date of occurrence, the accused, who came to his shop, asked him to drop him at Electrical shop to purchase electrical goods and after purchasing some goods, the accused asked him to drop him at Sister Convent. While going, since the accused asked him to drive fast, he enquired as to the urgency, and at that time, the accused told him that he committed a small mistake and he would tell the same later and he got down at Sister Convent. The above statement supports the evidence of P.W.2 to conclude that the accused has committed the offence under Section 302, IPC.
12.5. Further, P.W.24, Doctor, who conducted post mortem had deposed that the back side of the body, crown of the head and the soles were not burnt and therefore, there is no possibility of committing suicide. As per Ex.P46, Post Mortem Certificate, extensive second degree burns were found over the front on all the parts except over the back of the head, middle of the back, most of the buttocks and both soles. Assuming the deceased had committed suicide, naturally she would have poured kerosene on her head which would have spread on all over her body and on setting fire, all parts of the body would have got burnt. But, as per the post mortem certificate, back of the head, middle of the back, most of the buttocks and both soles were not burnt. Further, after setting fire on her and on her child, she would have moved here and there and raised alarm, but would not have laid down as if she wanted to sleep. Moreover, if the deceased had committed suicide, after pouring kerosene, she would have thrown the can containing kerosene in the house itself, but not outside the house. This would establish that the deceased had not committed suicide and she was done to death.
12.6. Even though an argument was raised on behalf of the appellant that as per the evidence of D.W.2, the deceased would have only committed suicide, we are unable to appreciate the same, since D.W.2, who is the sister of the accused, on being informed by the deceased about her frustration to live due to the scolding of her brother and refusal to give money, is normally expected to inform the same to her brother, husband of the deceased and tried to convince her. But, the action of D.W.2 in not informing the same to her brother creates a doubt as to the veracity of her evidence. Therefore, the same is liable to be rejected.
12.7. We have already rendered our finding as to the trustworthiness of the evidence of P.Ws.1 and 3 and as to the discharge of burden by the prosecution to prove the links between the chain of circumstances. Now, in continuation of our earlier finding that the evidence of P.Ws.1 and 3 is reliable, trustworthy and the prosecution has proved the links between the chain of circumstances, we are satisfied that the prosecution has proved the chain of circumstances, viz. fisting the child on her face and on her becoming unconscious, laying her near the deceased and thereafter, murdering them and also threatening P.W.2 with dire consequences and making her to speak with P.W.1 impersonating the deceased, to make the death of the deceased and her child as a suicide.
12.7. In view of the above, we have no hesitation to hold that the deceased had not committed suicide, but it is a homicide by the accused and accordingly, the offence under Section 302, IPC stands proved.
VII (G) - Offence under Section 302 read with 201, IPC 13.1. What is left to be decided is whether the prosecution has proved the link between the chain of circumstances with regard to the screening of the offence by pouring kerosene on the deceased and her child.
13.2. The accused, in his extra judicial confession made to P.W.2, had stated that he had committed the offence under Section 376, IPC and to make it as a suicide, he asked P.W.2 to give kerosene and thereafter, he poured the kerosene on the unconscious deceased and her child and set them on fire and screened the offence under Section 376, IPC. The above statement would make it clear that the accused had the intention to screen the offence under Section 376, IPC.
13.3. That apart, as per Ex.P46, post mortem certificate, the symptoms for the commission of offence under Section 376, IPC could not be traced due to the extensive second degree burns over the front on all the parts of the body of the deceased.
13.4. We are, therefore, of the considered opinion, that at the time of occurrence, the accused had the knowledge that he had committed the main offence and caused disappearance of evidence with regard to the main offence, and had the intention to screen the offence, by burning the body of the deceased and her child and consequently, the ingredients with respect to the screening of offence had been satisfied. Accordingly, the offence under Section 302 read with 201, IPC has also been made out.
13.5. Thus, the prosecution has satisfactorily discharged their onus of proving the link between the chain of circumstances to bring home the guilt of the accused qua the screening of offence is concerned.
VIII Finding
14. In view of the above discussion, our appraisal and analysis of the evidence on record, we have no hesitation to hold that the prosecution has successfully established all the circumstances appearing in the evidence against the accused by clear, cogent and reliable evidence and the chain of the established circumstances cumulatively lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime.
IX Encomium
14. Before we part with the matter, we place on record our appreciation for the prompt and meticulous investigation and the assiduous work undertaken by Mr.Ponn Manickavel, IPS, Superintendent of Police, Mr.K.Palanivel, Deputy Superintendent of Police and Mr.P.Ettiyappan, Scientific Officer, along with his team to bring out a clear picture of the crime committed by the accused by their dedicated and determined performance.
X - UPSHOT This appeal is dismissed confirming the conviction and sentence imposed by the learned I Additional Sessions Judge, Salem.
kpl Note to Registry:
Mark a copy to the Secretary, Home Department, Secretariat, Chennai 600 009 for recognition of the services rendered by the officials which stands appreciated by this Court.
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R.REGUPATHI, J.
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While I respectfully agree with the Judgment proposed by my learned brother P.D.DINAKARAN, J., I would like to project my own views by delivering a separate judgment.
2. Wails and attempts of a young helpless woman, pleading for mercy and for sparing her honour and life, did not deter the vulture-like culprit, who is none else than her brother-in-law, in committing the most ghastliest crime of rape and murder to quench his wild thirst for passion. The deceased was made unconscious by him with a severe blow on her head with a dough-roller (poorikattai) so that he could deflower her without any fray or resistance. The little drops of humanness which conjointly make humanity a cherished desire of mankind had seemingly dried up, when he gave a deadly punch on the tender face of his niece, a baby of just 13 months old, to make her inert so as to comfortably burn her along with her mother, who was already made unconscious by his brutal acts. Insolently, he invited a neighbour PW-2, showed her as to what he has committed, intimidated and threatened her not to divulge his acts and by squeezing her neck, forced her, who was already under the grip of fear, to talk to the relatives of the first deceased over phone as if the deceased herself was talking in order to make them believe that the first deceased was alive at that time. Charged in that regard for offences punishable under Sections 376, 302 (2 counts), 302 read with 201 (2 counts) and 506 (2) IPC., the appellant/accused was found guilty by the trial court of all the charges and sentenced to undergo R.I. for 7 years, life imprisonment (2 counts), R.I. for two years (2 counts) and R.I. for 7 years respectively, apart from imposition of fine amounts with default sentences. The sentences were ordered to run concurrently.
3. On 15.08.2003 between 1.15 and 2 P.M., while the first deceased Vijayalakshmi (referred in this Judgment as D1) was alone in the residence with the second deceased, her tender female child by name Srimathi (referred herein as D2), the accused, her brother-in-law, making use of the loneliness, made an attempt to rape her and as she was not amenable to his desire, he violently attacked on her head with a dough-roller and on her becoming unconscious as a result of sustaining fracture in the scalp, forcibly committed rape on her; thereby, he was charged for an offence punishable under Section 376 IPC. Thereafter, with a view to screen the offence and evidence, he poured kerosene on her and set her ablaze, resulting in her death; thereby, charge under Section 302 IPC. came to be framed.
In the same course of transaction, with a view to murder the female child of D-1, he gave a deadly fist on her face, as a result thereof, she had lost her consciousness and thereafter, he set her ablaze by pouring kerosene; thereby, charge under Section 302 IPC. (2nd count) was framed against him.
As he burnt both the deceased with an intention to screen the offence, conceal the evidence and to make an impression as if D1 committed suicide along with her child/D2, charge under Section 302 read with 201 IPC. (2 counts) was framed.
For intimidating and threatening PW-2, charge under Section 506(2) was framed.
When the accused was initially questioned, he pleaded innocence and therefore, trial of the case was taken up. The prosecution, in its endeavour to bring home the guilt of the accused, examined PWs-1 to 31, marked Exs.P1 to P66 and produced MOs-1 to 20. On the side of the defence, four witnesses were examined as DWs-1 to 4 and Exs.D1 to D11 were marked. C.W.1 by name Francis was examined as a court witness.
4. The fact situation of this case as unfurled by the prosecution witnesses is briefly stated here-under.
i) PW-1 is the brother of D-1 and he speaks about the dowry demand and the phone call received by him from her sister's residence at 2 P.M. on the fateful day. Since the phone call was cut off on the side of his sister, he immediately tried to contact her but in vain and therefore, he contacted his brother over phone in that regard. By 3.30 P.M., he received a telephonic message from his brother to the effect that their sister/D1 and her child/D2 were no more. He started immediately, reached the scene house at 7 P.M. and thereafter lodged a written complaint Ex.P1 with the police and Ex.P2 is the Telephone Bill.
ii) PW-2 is a neighbour of the accused. According to her, on 15.08.2003 at 1.30 P.M., the accused asked for kerosene to clean a machine and, as she was having food at that time, she gave him the Can containing about 6 to 7 litres of kerosene. When PW-2 came out of her residence, the accused signalled her to come to his residence and thinking that he called her to return back the kerosene Can, she went there and at the kitchen room found both the deceased lying inert on the floor. She scolded the accused and shrieked, whereupon, the accused told that he hugged her sister-in-law/D1 with a view to rape her and when she resisted, he attacked her with a dough-roller on head, making her unconscious and thereafter raped her and further, took her baby playing nearby, gave a punch on her face and threw it alongside D1. By threatening PW-2 that she would also be finished off if she does not act on his words, the accused asked her to talk over phone to the brother of D1 posing herself as D1 and state that unless they bring money within an hour, herself and D2 would not be seen alive. Accordingly, after stating so, she immediately cut the line even without answering the reply from the other end. It is her specific evidence that she was under the grip of panic and fear and was not able to do her works on that day.
iii) PW-3 is the sister-in-law of D1. Her evidence is that earlier, D-1 told her about the misbehaviour of the accused and requested her not to reveal the same to his brother. According to PW-3, she did not inform the said fact immediately after the occurrence as they came to know that it was a case of murder only later on.
iv) PW-4 deposed that he saw the accused at his residence at about 1.15 p.m. and called him to attend a plumbing job, for which, he declined stating that he had some other work. He speaks to the presence of the accused at the vicinity of the occurrence place at the relevant point of time.
v) PW-5, a building contractor, who knows the accused as a plumber, while going in a motorcycle along with his brother, saw the accused coming out of his residence/scene place between 2 and 2.10 p.m.
vi) PW-6 states that at about 2.10 pm., the accused came to his shop and requested him to drop him at the electrical shop and his specific statement is that while travelling so, the accused asked him to drive fast and when questioned as to what happened, he replied that he had committed a mistake. PW-6 further states that only after knowing about the incident, he could understand the meaning of what has been stated by the accused as mistake.
vii) PW-7 is the worker in the electrical shop where the accused purchased the electrical goods after being dropped by PW-6. His evidence is that he saw the accused unusually disturbed and in a state of hurry. Copy of the counterfoil of bill for the purchase of electrical goods by the accused is marked as Ex.P3.
viii) PW-8 was working as a Supervisor at St.Anne's Convent, where the accused and his brother viz., the husband of D1, were engaged for electrical works. His evidence is that on 15.08.2003, the accused left the working place by 12.45 P.M. to purchase some electrical goods, however, he returned back only by 3 P.M.
ix) PW-9 is the Scientific Officer, who, on receipt of Ex.P4, letter sent by the Court along with materials recovered at the scene of occurrence viz., empty cylinder, plastic can, piece of burnt mat with stain, wire bag , stove etc., conducted chemical examination and the report submitted in that regard is Ex.P5. PW-10 is the scientific officer who issued Ex.P6 report with reference to chemical examination of a pump stove sent as item No.7. PW-11 is the Scientific Officer, who on receipt of Ex.P7/letter from the court of the Magistrate, subjected the underwear of the accused and the semen found therein to chemical analysis and also sent sample blood and salvai to the Government Hospital for examination. Ex.P8 is the Chemical Report and Ex.P9 is the Serologist's Report.
x) PW-12, on coming to know about the incident, went in search of the husband of D-1 so as to inform him about the death of his wife and child. At about 3.30 P.M., he found both the accused and the husband of D1 at a bungalow. He took the husband of D1 along with him in his motorcycle without informing him of the incident. He saw the accused leaving that place in another vehicle.
xi) PW-13 was summoned to the police station for enquiry and in his presence, the accused made a confession statement and the admissible portion thereof is Ex.P10.
xii) PW-14 is the Sub Divisional Engineer of BSNL, Yercaud, and he has been examined to speak about the working condition of the telephone viz., Telephone connection No.222612, in the house where the offence was committed.
xiii) PW-15 is the Judicial Magistrate, who recorded the statement of PW-2 under Section 164 Cr.P.C. on 25.08.2003 and the said statement is marked as Ex.P14.
xiv) PW-16 is the Scientific Officer. After making observation and examination of the scene of occurrence, the articles available therein, and the posture and location of the burnt bodies, he forwarded his report under Ex.P15 to the effect that the cause of death is not due to suicidal burning.
xv) PW-17 is the Revenue Divisional Officer. As the death of D-1 was within three years of marriage, he conducted enquiry and in that course, held inquest over the bodies of the deceased and the inquest report is Ex.P17. His enquiry report is marked as Ex.P16, wherein, it is concluded that the death was not a result of dowry harassment and that it is a suspicious death.
xvi) PW-18 is the village Administrative Officer. On information, he along with his Assistant reached the scene of occurrence and found the front door unbolted from inside and it got opened just by placing hands thereon. PW-16 and his Assistant attested Ex.P18/Observation mahazar, prepared by the Investigating Officer.
xvii) PW-19 is the Medical Officer, who has issued the Certificate under Ex.P22 to the effect that there was no fracture in the hyoid bone of D1.
xviii) PW-20 is the Doctor, who, on receipt of Ex.P23 requisition from the Investigating Officer and Ex.P24 from the court, examined the accused for the injury found at his neck and for virility. As regards the abrasion found on the neck of the accused, he opined that such injury is possible due to a finger-nail scratch. Ex.P25 is the wound certificate and Ex.P-26 is the virility certificate.
xix) PW-21 is the court clerk who forwarded the material objects to the forensic lab for chemical examination.
xx) PW-22 is the Judicial Magistrate, who passed remand order Ex.P29 against the accused. He has stated that the police did not file any petition to record the confession of the accused and that the accused voluntarily stated that he committed the offence, however, he did not record the same in the remand order.
xxi) PW-23 is the Judicial Magistrate, who recorded the statements under Section 164 Cr.P.C. of the witnesses including PW3 and those statements have been marked as Ex.P31 to 43.
xxii) PW-24 is the Doctor, who conducted autopsy over the dead bodies on receipt of Exs.P44 and 45 requisition from the police. As regards D-1, he issued post mortem certificate under Ex.P46, wherein, the following has been noticed:-
" External Appearances: Face : Hair burnt on the front of scalp upto the back of the parietal bones, both eye lids burnt on both sides and closed.
Blood present on the nostrils. Tongue protruded and clenched between the teeth.
External Injuries:-
1) Extensive 2 (degree) burns over the front on all the parts and over the back on all parts except over the back of the head, middle of the back most of the buttocks and both sole of feet. The extent of the total burnt area is 85% and the unburnt area is 15% approximately.
2) There is a depression on the 4 side of the head 4" above the left ear.
Internal Examination:- .....
Skull: Depressed fracture on the parietal bone 4" above the left ear measuring about 2" x 1" x = cm. size. No blood in the calvarium.
Brain tissue immediately below the fractured area is lacerated measuring 2" x 1" x =" cm. size.
Neck: Hyoid bone normal. ....."
As to the cause of death, it is opined that D-1 would appear to have died of shock due to head injury and burn injuries.
Ex.P47 is the post mortem certificate issued in respect of D2 and in the said certificate, it is opined that D-2 would appear to have died of shock due to burn injuries.
By referring to his noting in the post-mortem certificate that tongue was protruding and teeth clenched, the Doctor, while deposing before court, stated that the deceased would have been alive at the time when the accused lighted them.
xxiii) PW-25 is the Head Constable, who took the dead bodies to the hospital for the purpose of autopsy. PW-26 is the Police Photographer who took photographs of the scene of occurrence in 11 angles. Ex.P48 series are the photographs and Ex.P49 series are the negatives thereof.
xxiv) PW-27 is the Sub Inspector of Police, who on receipt of the complaint from PW-1, registered a case in Crime No.350/03, prepared FIR under Ex.P50 and forwarded copies thereof to his superior officers.
xxv) PW-28 is the Revenue Divisional Officer to whom, the accused gave a confession statement and the same was recorded under Ex.P52.
xxvi) PW-29 is the police photographer who photographed and videographed the crime scene and the statement of the accused. Ex.P55 is the photo of the accused, Ex.P56 is the negative thereof, Ex.P57 is the video cassette and Ex.P58 is its VCD print.
xxvii) PW-30 is the Deputy Superintendent of Police, who investigated the case from 15.08.2003 to 18.08.2003. While proceeding with the investigation, on 18.08.2003, after getting the opinion of the Doctor by preparing medico legal questionnaire and recording the statements of witnesses, he altered the provisions of offence as the ones under Sections 302 and 376 IPC. and sent the altered report Ex.P-60 to the Judicial Magistrate. On 19.08.2003, he handed over the investigation to PW-31 the Superintendent of Police, Salem, and was assisting him in further investigating the matter. On 23.08.2003 at 7 A.M., PW-30 arrested the parents of the accused.
xxviii) PW-31 is the Chief Investigating Officer/Superintendent of Police, who after taking over the investigation from PW-30, proceeded further. On 19.08.2003, he went to the scene of occurrence and recorded the statement of PW-2 and that of other witnesses. The absconding accused was produced before him by the Inspector of Police on 20.08.2003 at 1.30 P.M. He sent him to the Hospital for obtaining medical opinion. After complying with the legal formalities, he recorded the statement of the accused. He produced the accused with a report before the D.R.O., Salem, to record his statement in writing and through video. The accused took him to the scene of occurrence and produced the dough-roller, shirt, pant and underwear from the kitchen and also a phone register and the same were seized under mahazar in the presence of witnesses. He examined the witnesses on different dates and the statement of PW-2 Selvi as regards the occurrence was recorded through video. On 01.9.2003, he sent the accused to judicial custody. Between 19.08.2003 and 14.11.2003, he examined 56 witnesses including Doctors, R.D.O. & V.A.O., and recorded their statements. After collecting all materials, he laid charge sheet against the accused before the Magistrate for the offences punishable under Sections 506 (1), 376 and 302 read with 201 (2 counts) IPC. He also laid a separate charge sheet against the husband of D1 and other relatives for the offence under Section 498-A IPC.
5. When the accused was questioned under Section 313 Cr.P.C. with reference to the incriminating materials put forth against him by the prosecution, he denied his complicity in the commission of the offence and filed a statement, wherein, he has stated that D-1 was agonised on account of the attitude of her brothers, who were not helping her; that on 15.08.2003, he went to work along with his brother and only at 3.30 P.M., through PW-12 Ravi, they came to know that D-1 self-immolated her along with the child; that the Investigating Officer tortured him to give a confession statement to the effect that he had murdered D1 after committing rape on her and torched her along with D2; that he is an innocent; that he never produced any material object as alleged by the police; that the confession before the D.R.O. was also obtained under coercion and threat and that a false case has been foisted against him.
5-A. DW-1 has stated that the F.I.R. in the case was received by the court on 18.08.2003.
DW-2, the sister of the accused, has deposed that on 13.3.2008, D1 phoned her stating that her brother and his wife have forcibly sent her out of their house when she went to them, asking for a loan of Rs.10,000/- and that on 15.08.2003 at 9 A.M., she again received a phone call from D1 stating that she was very upset as her brother and his wife have scolded her and therefore, she does not like to live.
DW-3 is the Branch Manger of Indian Bank, Mechery Branch, and he has stated that on 20.08.2003, the accused came to the Bank and redeemed the jewel pledged with the Bank between 10 A.M. and 2 P.M. DW4 is the Sub Divisional Engineer (Legal), BSNL. He has stated that all STD outgoing calls are registered from each telephone in the magnetic tape maintained by the Exchange and that there was no outgoing STD calls from telephone No.222032 in August, 2003. During re-examination, he has stated that billing facility is available only for outgoing calls and not for incoming calls.
As referred to earlier, Exs.D1 to D11, viz., photo of one Dhanapal, carbon copy of the bill dated 15.02.2004, statements given by witnesses during inquest, telegram, jewel loan register and the signature of the accused found therein, have been marked as defence side documents.
5-B. CW-1 is the court witness and he is residing adjacent to the house of the accused. According to him, while having lunch, he heard noise and on coming out, he found smoke emanating from the house of the accused and few persons standing there and further, he climbed up and went to the roof top and removed four or five tiles and by that time, persons standing outside the house entered and found both the deceased dead with burn injuries.
5-C. The trial court, after exhaustive consideration of the oral and documentary evidence adduced by both sides and of the arguments advanced on either side, found the appellant/accused guilty of all the charges and passed the order of conviction and sentence as aforementioned. The said order is under challenge in this Criminal Appeal.
6. Learned counsel for the appellant elaborately argued the matter, raising several grounds, in his endeavour to assail the order passed by the trial court.
At the foremost, he submits that the emphatic case of the defence is that D1, who was very upset and felt dejected as she was abandoned by her brothers and not helped by them while her family was in adversity, took the extreme decision of self-immolating herself along with her child. The said aspect has been spoken to by DW-2. Further, the prosecution did not come forward immediately with the case of rape and murder as the first F.I.R. registered was under Sections 498-A and 304-B IPC. It is submitted that the persons, who entered the house on finding smoke, would have poured water and might have placed the bodies in a posture lying on the back and and that the soles of the deceased were not seen burnt and therefore, the said aspects are indicative of self-immolation in a standing posture. That being so, by fabricating the incriminating materials to the extent possible, the prosecution dragged the accused in its net by foisting a false case. This is a clear case of suicide and if such version of the defence is accepted, the case of the prosecution has no basis to stand.
Next, by referring to Ex.D7, the statement made by PW-2 before the R.D.O at the time of inquest wherein she has stated that she came to know that the death of the deceased was due to self-immolation, learned counsel would argue that such statement is quite contrary to what has been deposed by PW-2 before court. For this simple reason, the testimony of PW-2 before court should be thrown out and consequently, the extra-judicial confession said to have been made by the accused to PW-2 loses its sanctity. Further, in all probability, it is highly imaginary that the accused, who is said to have committed a double murder, instead of leaving the place of occurrence, voluntarily calls a neighbour, confesses to her the act committed by him and threatens her. PW-2's attitude in coming up with different versions at different stages creates doubt and therefore, her evidence should be eschewed from consideration.
He pointed out that PW-1 initially came out with a version that actually he spoke to her sister; thus, he did not doubt the voice, but, only after coming to know about the misconduct of the accused through PW-3, who is said to have been informed of the same by D-1 on the earlier occasion before her death, and seeing the newspapers, he became vigilant enough to doubt the voice. Therefore, the post-event conduct of PW-1 in narrating the sequence of events gives a strong presumption of embellishment particularly while contrasting his testimony with that of PW-3. There are contradictions between the testimonies of PW-1 and PW-3 as regards the starting point of doubt pertaining to murder. There are inconsistencies in mentioning the time as to when the witnesses received the message of death. In such circumstances, it is not safe to rely on their testimonies so as to hold against the accused/appellant.
According to him, the medical evidence is rather rambling and from the testimonies of the Doctors and experts, a concrete conclusion could not be reached that the death was due to homicidal violence.
Such being the actual state of affairs, the recoveries, confessions, videographs etc. would in no way help the prosecution case as it is clearly apparent that those materials are the 'hand-tailored materials' of the prosecution to falsely implicate the accused. According to him, in the light of the various aspects adverted to by the defence, this Court may set aside the order of conviction and sentence passed by the trial court holding that this is a clear case of suicide.
7. Per contra, learned Additional Prosecutor submitted that the prosecution has established its case beyond all reasonable doubts through its witnesses as well as documentary evidence and on the face of the same, the case projected by the defence adducing their side of evidence was rightly rejected by the trial court. First of all, a close perusal of the evidence of DW-2 would indicate that her evidence is nothing but an afterthought to escape her brother, the accused, from the clutches of law and punishment. If really D-1 had stated to her that she was going to commit suicide due to her ill-treatment at the hands of her brothers, DW-2's usual conduct would be to inform the same to her husband and other relatives and take immediate steps to see that she gets such feelings effaced from her mind. Even the evidence of DW-2 and the written statement filed by the accused would only give an impression that D1 had to move her brothers due to the pressure and stiff dowry demand on the side of the family of the accused. That being so, DW-2's evidence cannot overturn the case of the prosecution. At the initial stage, though case was registered under other provisions, during investigation, it came to light that the accused was the culprit who committed the rape and murder of the deceased and in such circumstance, it is futile to argue that, at the initial stage, it was concluded to be a case of suicide/dowry death but later on, the prosecution, by making embellishments and improvements, developed its story and foisted a false case against the accused. According to him, a detailed and deep study of the report submitted by the Scientific Officer PW-16 coupled with the post-mortem certificates and the deposition of the Medical Officer would establish beyond any iota of doubt that this is a clear case of murder. Though the defence took much pains to impeach the testimony of PW-2 by contrasting her evidence with her statement/Ex.D7 before the R.D.O. at the time of inquest, consideration of the said materials in the light of the factual aspects involved would show that the testimony of PW-2 is very much consistent and natural and the same can be safely acted upon. Moreover, in this case, the extra-judicial confession made to PW-2 has been correctly accepted by the trial court as the same is within the parameters of law and withstood the test of reasonableness and credibility. An overall assessment of the evidence of the prosecution witnesses would establish the strong circumstances against the accused in a cogent manner. According to him, considering the brutal manner in which the accused committed the crime against a woman and a tender female child, the lower court should have inflicted a higher punishment than what has been imposed.
8. I have carefully considered the entire materials available on record and the rival submissions advanced on either side.
9. Before proceeding to deliberate upon the arguments made, it may be pertinent to make some observations relevant to this case:-
A. Crime is an event which adversely affects the society as a whole, and when it is committed against the weaker sections of the society viz., women and children, it would have adverse and harmful impacts. The Supreme Court, in its various decisions, has highlighted that, while dealing with such crimes, the Judges, who are armed with the sword of justice, should unsheathe and use the same to the full possible extent so as to ensure that such crimes are not recurring; of course, while arriving at the positive conclusion about the guilt of the accused charged with the commission of such crimes, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. The hyper-technicalities or figment of feeble imagination should not be allowed either at the instance of the prosecution or the defence to divest the court of its responsibility of sifting and weighing the evidence to arrive at a just conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the larger interests of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of life have to be kept in mind while analysing the evidence for arriving at a right conclusion. Courts are not bound to make efforts either to cling towards the prosecution or loosely construe the law in favour of the accused. The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial. Criminal jurisprudence cannot be considered to be a utopian thought but should be considered as part and parcel of the human civilization and the realities of life. Similarly, Courts should also take a serious note of the erosion in values of life. Such erosions cannot be given a bonus in favour of those who are guilty of polluting the society.
B. A murderer destroys the physical body of the victim while a rapist degrades the very soul of the helpless female. In the present case, allegedly the accused did both crimes apart from ruthlessly killing a blossoming child. while dealing with such a case involving sexual molestation followed by murder, the testimony of the prosecution witnesses must be appreciated in the background of the entire case and the court must be alive to its responsibility and be sensitive. While gauging the situation, it must be carefully seen that a doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females and children.
C. Where the inference of guilt of an accused person is to be drawn from circumstantial evidence only, those circumstances must, at the first instance, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused and none else. There may be no direct evidence to prove the actual participation of an accused in committing the crime but if the circumstantial evidence available against the accused is definite and conclusive in nature, without any hesitance, conviction may be recorded on the basis of such circumstantial evidence.
10. Proceeding in that perspective, in the first place, two vital aspects of the matter viz., acceptability or otherwise of the testimony of PW-2 and the question relating to the nature/cause of death i.e., as to whether the same is homicidal or suicidal, have to be carefully analysed as the findings thereon would have considerable effect on the potentiality of the circumstances relied on by the prosecution in establishing the guilt of the accused.
11. To begin with, though this is a case of circumstantial evidence, there is a witness viz., PW-2, who happened to see the deceased lying unconscious on floor on being shown by the accused before the bodies were burnt by him. He made an extra-judicial confession to her as to the acts committed by him, squeezed her neck, threatened her that her children would be orphaned if she divulges the same or does not act as per his instructions and ultimately directed her to talk to a brother of D1 over phone projecting her to be D1. While dealing with the evidence of such witness and the criticism made to her testimony by contrasting the same with that of her statement before R.D.O/police authorities, the surrounding circumstances covering such issue must be taken note of. First of all, the presence of PW-2 at the vicinity cannot be doubted she being a neighbour. Further, the mere fact that she is a working lady used to leave the residence by 7 am and returns back at 7 pm cannot be taken as a ground to doubt her presence because, the date of occurrence viz., 15.08.2003, was a holiday on account of Independence Day and further she usually comes in the afternoon for having lunch and thereafter, goes for other works. It is seen that, being shocked at the grisly acts of the accused in murdering not only a woman but a tender child, who are none else than his sister-in-law and niece respectively, PW-2 was under an irretrievable grip of panic and fear as the accused had threatened her that she would also be finished off, if she utters the truth. That is why, she deposed rather in clear terms that in the afternoon, in the working place, she could not do her works and in fact, did not say anything to the watchman and his wife available there when they questioned on seeing her in a state of anxiety. It is not the case of the defence that she was enquired by the R.D.O. after considerable period of time so as to suggest that without fear or panic, she could state all the details known to her. Admittedly, her statement during the inquest was recorded by the R.D.O. on the next day ie., on 16.08.2003. Moreover, at that time, the accused was not arrested and the eye of the police did not turn towards him. Therefore, it is quite natural for her to hide those particulars fearing danger to her life at the hands of the accused. Such being the circumstances, only after the arrest of the accused, while giving statement before the Magistrate under Section 164 Cr.P.C. on 25.08.2003 and similarly while deposing before court, she put forth what all she happened to witness and also the threat posed to her by the accused. Viewed in that background, the so-called vital contradictions adverted to by the counsel for the appellant by reading between the contents of Ex.D7 and the evidence of PW-2 in order to impeach her testimony does not merit acceptance. Her testimony appears to be natural, cogent and convincing.
It follows that there is no difficulty to hold that the extra judicial confession available through PW-2 is reliable and the same can be acted upon. Courts will act on extra-judicial confession having regard to the circumstances under which the confession is made, the manner in which it is made and the person to whom it is made and also keeping in mind the two rules of caution viz., (a) whether the evidence of confession is reliable and (b) whether it finds corroboration. In the light of the reasons given above and of the fact that PW-2's testimony is sufficiently corroborated by other piece of evidence, which aspect would be discussed at the later part of this Judgment, the extra judicial confession available here is a strong piece of evidence as against the appellant.
12. Coming to the suicide theory projected on the side of the appellant, such theory is, on the face of it, so vague and faint to survive in the light of the scientific and medical evidence. In fact, the trial court has elaborately dealt with the said question and accepted the prosecution version that it was a case of homicidal violence. PW-16, the Scientific Expert, who observed and examined the place of occurrence, had adverted to various relevant details, emphatically ruling out the possibility of suicide. First of all, black stains were found around the dead bodies and not all over the kitchen where the bodies were burnt. By noting the following viz., actual position, posture and location of the deceased, dorsal side of the corpus delicti being un-burnt, piece of un-burnt cloth found between the seat (buttocks) of D1 and the floor, kerosene smell found in the bodies and other materials but no kerosene container was found inside the house, fire would not have been originated from any of the two stoves available in the scene place and the pad lock and screws of the wooden doors were found in tact, PW-16 positively opined that the cause of death is not due to suicidal burning. In the light of the same, the argument advanced to the effect that the soles were free from burn injuries and therefore, it is a case of suicide is not acceptable at all. As rightly pointed out, such possibility is very much available in homicidal violence also. In fact, PW-16 was subjected to lengthy cross examination and there is nothing to suggest that he had deposed falsely. Corroborating the evidence of PW-16, there is the evidence of PW-24, the Doctor who conducted autopsy. He has stated that D1 would have died of head injury and burn injuries and that the head injury could have been caused by dough-roller and violent blow therewith on head would lead to death. He further asserted that if a person pours kerosene and self-immolates himself/herself, from head to toe there would be burn injuries, whereas, in the present case, there was no burn injuries on the back, scalp and back side of the head. He further clarified that such burn injuries would be possible if the deceased were burnt after being laid in a state of unconsciousness. He has specifically stated that he could not find carbon stains on the oesophagus. According to him, if it is a case of self-immolation, definitely, the deceased would have run here and there and the burn injuries would be quite different from the ones noticed by him. He further suggested that she would have been burnt after made to lie on floor unconscious. He also withstood the rigour of cross-examination and emphatically stated that it is a case of murder.
It would not be possible for a person who has sustained deadly head injury, as could be seen from the medical evidence, to self-immolate herself and her child. If the evidence of PW-16 and that of the Doctor/PW-24 is carefully considered along with the testimony of PW-2 and other witnesses, there would be no difficulty in accepting the case of the prosecution that it is a case of homicidal violence.
13. Now, the incriminating circumstances available against the accused may be dealt with. Though relying on the written statement of the accused before trial court, a plea of alibi was sought to be projected, the prosecution clearly established the circumstance as to the presence of the accused at the scene of occurrence from inception to end through PWs-4 to 8. All of them are independent witnesses and of course, PW-6 seems to be a person known well to the accused and was friendly towards him. PW-4 has stated that he met the accused on the occurrence day at his residence between 1 and 1.15 p.m. for the purpose of laying a pipe line, and the accused refused therefor stating that he has some domestic works to do. PW-5 has stated that on the same day at about 2 or 2.10 p.m., while proceeding along with his brother, he saw the accused coming out from his residence. PW-6, who seems to be a friend of the accused, was approached by the accused at 2.10 P.M. with a request to drop him at the electrical shop, whereupon, he took him in his motor-cycle. He has specifically stated that while travelling in the motor-cycle, the accused asked him to drive fast and therefore, he asked him as to what happened, for which, the accused answered that he had done a mistake. According to PW-6, he could understand the meaning of what was said by the accused as 'mistake' only after seeing the newspapers. PW-7 is the worker of the electrical shop where the accused purchased electrical goods after being dropped by PW-6. He has stated that at about 2.30 pm. the accused came and purchased electrical goods from the shop and at that time, he was seen disturbed. PW-8 is the Supervisor at the school where the accused and his brother were working on the occurrence day. His emphatic evidence is that the accused left the working place for purchase of electrical goods by 12.45 p.m. and returned back at 3 P.M. The time gap at which each of the witnesses saw the accused at various places and the sequence arising therefrom, is quite natural and fortifies the case of prosecution that it was the accused, who alone was present at the scene house while D-1 and D-2 were alone there, and indulged in the heinous crime. PW-2's evidence is the crossroad which projects the whole version of the prosecution in a clinching and clear manner leaving no doubt for suspicion.
14. The motive part of the prosecution case has been well spoken to by PW-2 by way of extra judicial confession made to her by the accused and also through PW-3. As pointed out earlier, PW-2, in her statement made before the Magistrate under Section 164 Cr.P.C. and while deposing before court, consistently stated that the accused had been waiting for a right opportunity to have sex with her sister-in-law and on the occurrence, he used the loneliness prevalent in the residence to satiate his vicious desire. The conduct of PW-3 in coming out to divulge about the misconduct of the accused to her husband and PW-1 after getting inference from the further details that subsequently surfaced with regard to the involvement of the accused in the crime would only show the natural sequence in which the witnesses have reacted and deposed. Much has been argued by the counsel for the appellant by pointing out contradictions in the testimonies of the prosecution witnesses. According to him, the witnesses acted belatedly and their post-event conducts and versions going in line with the prosecution case would only support the plea of the defence that there were improvements and concoctions at the instance of the prosecuting agency to rope in the accused. In the peculiar facts and circumstances of the case, it is clearly seen that the accused played a clever game to project the ruthless murders as suicide and thereby attempted to divert the course of investigation. Actually, he confessed to PW-2 not due to any prickly feeling or being ashamed of what he has done, but for his own benefit viz., to threaten and bring her under his control so that she would act as per his instructions and his face could be veiled from being exposed to truth. PW-2 was made to speak over phone as if D1 was speaking and therefore, at the inception, a strong presumption of murder did not erupt since the situation was too fishy. That being so, the post-event conduct of the witnesses could not be predicted on specified lines. Such conduct would vary from person to person as different people react differently under different situations. PW-3 had lost his sister-in-law and the tender child in a ghastly crime committed by the accused. Following the phone call, PW-3 came to know that the deceased had self-immolated and therefore, the earlier information given to her by D-1 about the misconduct of the accused could not prevail over her mind. That being so, the evidence of the aforesaid witnesses cannot be discarded just because certain trifling inconsistencies have been pointed out for the sake of argument. Through PW-2 and PW-3, the motive aspect viz., the accused had a lustful eye towards her sister-in-law, has been proved beyond any scope for doubt.
15. It is seen that the injury on the neck of the accused was noticed at the very initial stage of the investigation. PW-20, the Doctor to whom the accused was referred, has stated that the said injury could have been caused by nail scratch to avoid hugging. Thus, it would have been caused by D-1 in an attempt to resist his advance and furnish circumstantial support to the case against him. It is very clear that he must have sustained the injury when he was facing the lady. This aspect also probablise the case of the prosecution against the accused pointing the guilt towards him.
16. Later, subsequent to the arrest of the accused, confession was made by him before the Revenue Divisional Officer and before the judicial magistrate, who remanded him to judicial custody, of course, the same has not been recorded in the remand order. Further, incriminating materials were seized at his instance. Though by pointing out some vague aspects and relying upon the written statement submitted by the accused, contrary submissions were made, the same do not merit acceptance in view of the clinching materials and strong and unbroken circumstances available against the accused as pointed out above.
17. An argument was advanced that the F.I.R. belatedly reached the court. It is pertinent to point out that, of course, Section 157 Cr.P.C. stipulates forwarding of an FIR to the court of the Magistrate forthwith so that it reaches the court promptly and without any undue delay and the reason behind the same is to avoid any possibility of improvement in the prosecution story and to enable the Magistrate to have a watch over the progress of the investigation. But invariably, such lacuna on the side of the prosecution would not serve as the sole basis for rejecting the prosecution case particularly where the prosecution produced reliable evidence to prove the guilt of the accused person. The Apex Court in umpteen cases has categorically held that when the prosecution has led reliable and acceptable evidence, the veracity of the same is not dislodged by the delay in recording of the FIR and the delay in sending the same to the court. In the peculiar facts and circumstances of the case, the delay in the F.I.R. reaching the court would in no way affect the case of the prosecution. In fact, the altered F.I.R reached the court on the same day without any delay.
18. Similarly, referring to the evidence of DW-3, it is argued that inasmuch as the accused was present in the Bank on 20.08.2003 for redeeming the jewel pledged, the prosecution version that he was arrested on the same day is unbelievable. The obscure evidence of DW-3 that the accused came to the Bank between 10 A.M. and 2 P.M. seems to be strange and does not infuse confidence. On the face of the same, if one looks at the evidence of the Investigating Officer that the accused was arrested on that day at 1.30 P.M., it would be clear that the prosecution version in that regard is quite acceptable.
19. From the foregoing discussion, the incriminating circumstances and materials made available by the prosecution to connect the appellant with the crime can be categorised as follows:-
(i) The appellant, an unmarried person aged about 29, is none else than the brother-in-law of D-1, living in the residence of his brother as a member of the joint family; under such circumstances, he was having every access to move with D-1.
(ii) As per the evidence of PW-3 and the extra-judicial confession available through PW-2, the appellant was having a lustful eye towards D-1 to have sex with her and with that motive, he earlier misbehaved with D-1. The motive assumes great significance inasmuch as its existence is an enlightening factor in a process of presumptive reasoning.
(iii) D-1 was a lone lady with her child D-2 available at the residence at the time of occurrence and the appellant, who was looking for a right time to slake his lascivious cupidity, utilised such opportunity and this has been established through the evidence of PW-2.
(iv) The accused procured kerosene from PW-2 and utilised the same for torching the bodies.
(v) He subdued and silenced PW-2 under threat and, with her help, created a make-believe story that it was a case of suicide.
(vi) It is the brother of D-1/PW-1, who set the law in motion by preferring a written complaint with the police and the allegation was that the husband of D-1 along with his family members demanded dowry and ill-treated her, due to which, she committed suicide. The evidence of PW-1 is that D-1 spoke to him over phone at 2 P.M. cautioning that the demand must be met with instantly. On a careful perusal of the materials, it appears that the husband of D-1 was not at all present at that time in the residence and the immediate provocation for D-1 to contact PW-1 at the instance of her husband is totally absent. PW-8 speaks about the absence of the accused from the working place, where the husband of the D-1 and his brother the accused were working; in such circumstances, the presence of the husband at the relevant time at the scene house is excluded.
(vii) Though PW-1 was also made to believe that only due to dowry harassment meted out to D-1, she committed suicide, subsequently, during the course of investigation, he came to know the actual state of affairs and he vividly clarified the said aspects in his evidence before court.
(viii) By examination of CW-1, it has been substantiated that the door of the house was not locked from inside and just by placing hands, the door got opened.
(ix) The movements and availability of the accused at the scene house during the time span at which the offence was committed have been spoken to in a clear and cogent manner by PWs-4 to 8 and in particular PW-2. The intervals at which the witnesses saw the accused is spoken to by them in a natural manner thereby, the theory of alibi projected has no legs to stand. Further, PW-8 has specifically stated that the accused was absent at the place of work between 12.45 p.m. and 3 P.M. To substantiate the plea of alibi, it is the accused, who has to prove the same by production of substantive materials, oral and documentary, however, no effort has been taken in that regard at the instance of the defence.
(x) The accused was found in a disturbed mental condition immediately after the commission of offence and such aspect has been spoken to by PWs-6 and 7.
(xi) The Scientific Assistant PW-16, on a careful scanning of the scene of occurrence, has given a positive opinion that the death of the deceased was not on account of suicide but due to homicidal violence.
(xii) The injury found on the head of D-1 would clearly corroborate the prosecution version about the initial part of the occurrence took place and the medical evidence is quite clear that such injury could have been caused by MO-1/Dough Roller; thereby, putting an end to the suicide theory discovered by the defence.
(xiii) There was no reason whatsoever for D-1 to commit suicide at the relevant time since there was no immediate provocation for her to commit such act. Further, the LPG cylinder and kerosene stove found at the kitchen were in-tact and there is no scope to suggest that D1 set fire to herself or to introduce a case of accident due to explosion.
(xiv) Though the oral testimony of the witnesses may give contradictory versions, of course trivial in nature, things as such found at the scene of occurrence, as could be seen from the observation mahazar prepared, and the posture in which the dead bodies were lying, would defeat the plea of self-immolation. Abundant materials have been adduced to substantiate that the deceased were laid first after being driven to a state of unconsciousness and only thereafter, set fire to. Post-mortem certificate corroborated the other materials to arrive at a definite conclusion that the death of the deceased was due to homicidal violence.
(xv) The injury due to nail scratch found at the neck of the accused soon after the arrest also affirms the participation of the accused and no sufficient explanation forthcoming from the defence side for such injury. Further, incriminating weapon of offence viz., MO-1, and personal clothing of the accused were recovered pursuant to the statement made by him.
The aforesaid strong circumstances, unerringly and accurately pointing towards the guilt of the accused, would lead to an irresistible conclusion that it is the appellant/accused, who alone has committed the ghastly crimes.
20. Coming to the argument advanced on behalf of the State that the sentence imposed is not proportionate to the ghastliness of the crime committed, the following may be added.
The object of punishment has been clearly stated in Halsbury's Laws of England (4th Edn., Vol.II, para 482) as follows:-
" 482. Object of punishment.-- The aims of punishment are now considered to be retribution, justice deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided."
In justice-delivery system, courts are conscious and mindful of the proportion between the rigour of offence committed and the penalty imposed as also its impact on society in general and the victim of the crime in particular. Penal laws, by and large, adhere to the doctrine of proportionality in prescribing sentences according to culpability of criminal conduct. It is the degree of deliberation shown by the offender in committing a crime which is material. Further, social impact of the crime, particularly where it relates to offences against women, cannot be lost sight of and per se requires exemplary treatment. Any liberal attitude of imposition of meagre sentence or too sympathetic view may be counterproductive in the long run and against social interest which needs to be cared for, protected and strengthened by string of deterrence inbuilt in the sentencing system. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. In cases where the accused is directed to undergo life imprisonment, on completion of 14 years of sentence, while commuting the sentence and granting remission, weighty reasons must be available and only on satisfaction that the appellant has completely repented and reformed, he can be sent back to the society. But, such remission or commutation is not an universal application in cases of all lifers. In this case, keeping in mind the cadaverousness of the crime, the trial court imposed life imprisonment (2 counts) on the accused and such sentence should be looked at in terms of the rigour with which it would operate, for, the Supreme Court has time and again held in umpteen number of its Judgments that in such a case, where an imprisonment for life is ordered, it would mean that it is for life and the accused must be in custody for the whole of his life. Accordingly, it is clarified that the appellant/accused would serve the sentence until he breathes his last.
21. The trial court elaborately and exhaustively considered all relevant aspects and reached at a right conclusion to hold against the accused/appellant. There is no valid ground for interfering with the order of conviction and sentence passed by the trial court; consequently, the appeal fails and the same stands dismissed.
22. It must be appreciatively mentioned that both Mr.K.V.Sridharan, learned counsel for the petitioner, and Mr.N.R.Elango, learned Additional Public Prosecutor, eruditely strengthened their own spectrum of submissions, succinctly meeting point by point with juristic nicety and persuasive precision.
22-A. Before parting, I intend to place on record this Court's appreciation for Thiru.P.Ettiyappan, the Scientific Officer, examined as PW-16 in this case, but for whom, the offence committed by the accused could not have been brought to light. Only on the basis of the definite opinion given by him after a wide-awake scrutiny of the scene of occurrence, scanning of the materials found thereat, posture of the dead bodies etc., the Investigating Agency could proceed in a right direction.
This Court's appreciation also goes to the Investigating Team, in particular, Thiru.K.Palanivel (Deputy Superintendent of Police/PW-30), who commenced investigation from 15.08.2003 and Thiru.A.G.Ponn Manickavel (Superintendent of Police/PW-31), who took up further investigation on 19.08.2003. Under normal circumstances, a Superintendent of Police, though vested with the authority of supervising the investigation, will not himself take up the investigation; but, in the case on hand, the Officer, assessing the seriousness of the offence committed, himself took up the task and conducted further investigation of the case. The offence had taken place within a short span of about about one hour and the accused meticulously planned to screen the offence and set up things to project as if it was a case of suicide. But for the perspicacity and strenuous efforts of the Investigating Officers in unearthing the truth, a guile and cunning person like the appellant would have definitely slipped the net. With the clue of intelligence available, these efficient Officers, vested with all skills of investigation and commitment to the job entrusted with, succeeded in chasing and catching the real culprit. Even if there was a minor lapse or deviation or side-tracking in the course of investigation, due to the cunningness of the accused, the crime committed by him would have gone unnoticed. It is only because of the wakeful investigation by the D.S.P. and the S.P., the truth came to surface. Hence, they deserve all appreciation in this regard.
23. Finally, certain vital aspects for necessary follow-up action may be ciphered up here-under.
Crime is an act of warfare against community touching new depths of lawlessness. Abrupt increase of crime rates in the country has seriously to be taken note of. Investigation is the hub of criminal jurisprudence but unfortunately adequate attention has not been paid to it. It is during investigation that the basic facts relating to a crime are enquired into, and the particulars gathered during the investigation are placed before court. Unless there is an efficient, prompt and fair investigation, justice in criminal cases cannot be ensured. Even in cases where the accused is nabbed early, full facts about the crime can only be ascertained by effective police investigation. The most important factor in preventing and deterring crime is the frequency with which those who commit crimes are arrested, prosecuted, convicted and punished. For achieving the said purpose, it is imperative that changes are effected in the investigative processes. Scientific investigation should substitute the conventional ones. Arduous efforts should be made to improve the system in order to increase the certainty of conviction and punishment for the most serious offenders and repeaters. For the better administration of criminal justice, recidivists, career criminals and violent offenders need to be prosecuted expeditiously in a selective manner because these offenders pose a serious threat to the society.
It is heartening to note that the alarming proportion between the crime rate and conviction rate is quite disturbing. In spite of the scientific advancement and its impact in the field of crime investigation, the rate of conviction is abruptly decreasing. Naturally, the reasons attributed would be faulty investigation, non-production of sufficient materials before court or callousness on the part of the investigating agency. The Station House Officers, amongst various other assignments, also entrusted with the job of investigation of crimes. It is unfortunate to note that, in most of the cases, the concerned officer, shirks the responsibility and shift the same to the shoulders of his subordinates being unmindful of the adverse consequences that would erupt. When investigation of serious crimes is entrusted to subordinate officials including constables, acquittal becomes inevitable in spite of catching the actual culprit and producing him before court. Unless an officer is hand and foot assigned for conducting investigation of a case in a full-fledged manner and pursuing the same in a court of law, it would be impossible to occlude the resultant failures in the administration of criminal justice, leading to wrong acquittals.
In such circumstances, suggestion is made to the Government to establish a separate "Crime Investigation Wing" exclusively for investigation, prosecution and to take necessary follow-up action, as found in the developed countries in order to attain the avowed objectives of the criminal justice and administration system.
Registry is directed to communicate copy of this Judgement to the Secretary to Government, Government of Tamil Nadu, and the Director General of Police, Tamil Nadu.
JI.
To
1. The Chief Secretary to Govt., Govt. of Tamil Nadu, Fort St. George, Chennai.
2. The Director General of Police, Tamil Nadu.
3. I Additional Sessions Judge, Salem.