JUDGMENT
A.S. Venkatachalamorthy, J.
1. The appellant/accused has been convicted by the learned Principal Sessions Judge, Kanyakumari at Nagercoil under Section 302 and 448 I.P.C. in S.C. No. 174 of 1998 for causing the murder of one Meenubai at about 11 a.m./12 noon on 16.12.1991 at her residence and was sentenced to undergo life imprisonment and six months R.I. respectively. The present appeal has been filed by the appellant questioning the correctness of the same.
2. The prosecution, to bring home the guilt of the accused, examined Pws.1 to 18, marked Exs.P-1 to P-21 and produced Mos.1 to 25.
3. The case of the prosecution can be set out in nutshell as under.
(a) PW-1 Thangappan is the husband of the deceased Meenubai, while PW-2 Selvi.Sheeja is their daughter. They resided in a place called Nattalam. The accused is related to the deceased and resides in Pootetri, which is about 11 kms. away from the scene of occurrence. At the relevant time, PW-2 Selvi.Sheeja was studying 7th standard.
(b) PW-1 was at the relevant time working as a coolie in a textile shop at Marthandam. He used to go to his job at 7.00 a.m and return back at 10.00 p.m. On the fateful day also he went to the shop as usual. PW-1 is the uncle of PW-3. PW-3 resides closeby to the house of PW-1 and she is related to PW-1.
(c) On 16.12.1991 at about 10.00 a.m. PW-3 was standing on the west of her house, when she heard somebody shouting, “Inah mg;gh vd;id bfhy;Yfpwhnd”. Ten minutes thereafter, the accused came out of the house from the northern side entrance and he was wearing sandalwood colour shirt. She also noticed blood stains in the shirt.
(d) PW-4 Saroja resides just north of PW-3’s house and she was also standing outside her house at the relevant time. PW-3 drew the attention of PW-4 and asked her whether she could recognise who that person was. PW-4 replied saying that he is Gangadaran, son of Dharmakari. Thereafter, Pw-3 went away. PW-4 asked the accused as to why he came there, for which he replied that he intends to go to Sabarimalai and that he came there to inform the deceased. PW-4 asked the accused whether he informed the same to the deceased, for which, he replied in the affirmative. Thereafter, the accused proceeded towards east.
(e) After sometime, at about 12.00 noon or so, PW-2 returned from her school. She went inside the house and saw her mother lying dead. She cried aloud and hearing that, Pws.3 and 4 went to the house of the deceased. They could see that the deceased lying dead on the floor in the dining hall. Thereafter PW-3 asked PW-12 to inform PW-1 in this regard. PW-12 then proceeded to the shop where PW-1 works and informed him. PW-1 immediately came back to his house and reached there by about 1.30 p.m. He saw the deceased lying dead. When he asked PW-3, she replied that at about 10.30/11.00 a.m. she heard the noise, “Inah mg;gh vd;id bfhy;Yfpwhnd” and thereafter she saw the accused going out of the house. Thereafter, PW-1 went to the police station to give complaint.
(f) PW-15 is the Sub-Inspector of Police at Kuzhithurai Police Station at the relevant time. At about 3.30 p.m. on 16.12.1991, PW-1 appeared before PW-15 and gave a statement and the same was reduced to writing, which is marked as Ex.P-1. On the basis of the said statement, PW-15 registered crime No. 1296 of 1991 under Section 302 I.P.C. and prepared express F.I.R. Ex.P-18. Thereafter, he sent Ex.P-18 along with Ex.P-1 complaint to the Judicial Magistrate and copies to his superiors.
(g) PW-17 is the Inspector of Police in charge of Kuzhithurai Police Station at the relevant time and he was informed about the occurrence over wireless. On receipt of information, PW-17 proceeded to Kuzhithurai Police Station, obtained copy of F.I.R. and proceeded to the scene of occurrence. At 6.45 p.m. he reached to scene of occurrence, but he could not proceed with the investigation. On the next day, i.e, on 17.12.1991, at 6.00 a.m. he proceeded to the scene of occurrence and after inspecting, prepared Ex.P-2 observation mahazar and Ex.P-20 rough sketch in the presence of witnesses. Thereafter, he sought the assistance of photographer to take the photographs of the scene of occurrence and body of the deceased. An inquest over the body of the deceased was held between 7.25 a.m. and 9.45 a.m. in the presence of Panchayatdars and prepared Ex.P-21 inquest report. During inquest, he examined Pws.1, 3, 4 and others and recorded their statements. At 9.45 a.m. the Inspector sent the body of the deceased to the hospital to conduct post mortem along with a requisition. The blood stained mat MO-1, blood stained earth MO-7, ordinary earth MO-8, match box MO-11, one bra MO-4 and other material objects were seized under mahazar in the presence of witnesses. Thereafter the Inspector of Police proceeded to record the statements of witnesses.
(h) PW-10 is the Doctor attached to the Government Hospital at Kuzhithurai. On receipt of requisition Ex.P-8 from the Inspector of Police, the Doctor commenced post mortem at about 1.30 p.m. on 17.12.1991. Ex.P-9 is the post mortem certificate issued by the Doctor. In the said certificate, the Doctor has noted the following,
“A Moderately nourished, female body with purple colour of face and neck, black iris with black hair.
Injuries:
1. A horizontal abrasion of 3 x 2 cms size over upper part of front of neck, starting from the midline to the left.
2. A black coloured contusion of about 5 x 2 cms size over upper part of front of right side neck along the line of first injury. On opening the skin, ecymosis present underneath the skin of 1st and 2nd injury. Around the 1st and 2nd injury the neck was swollen and purple coloured. Right side cornua of hyoid bone broken.
3. A linear horizontal nail mark abrasion of 21/2 cm size over right cheek.
4. An abrasion of 21/2 x 1 cm size near the left eyebrow.
5. Right ear (N.C.) teared from the ear hole.
6. Face became oedematous and purple coloured.
7. Dried blood present over nose and mouth.
All the injuries were antemortem in nature. Rigor mortis present in lower limbs and slightly passed off in upper limbs.
Death would appear to have occurred about within 24 to 30 hours. Eyelids swollen and closed. Tongue inside. Mammory glands – no external injuries. Abdomen – normal. Generative organs – normal. Mucus discharge present over vulva. No marks of violence present. About 1 cm length (N.C.) pubic hairs stains with mucus present. On opening the abdomen and thorax all organs were normal. Heart – normal. Chambers empty. Lungs – normal. Section – slightly congested. Larynx – glottis, trachea were slightly congested. Stomach contains black coloured fluid, contains three round worms with no characteristic smell. Oesophagus – slightly congested. Liver, spleen and kidneys were normal, section – slightly congested. Uterus – normal. On opening the head ecymosis present underneath the 4th injury. No fracture skull. Brain – normal. No haematoma. Vaginal & cervical smear and pubic hair preserved. Dried blood and blood preserved.”
The Doctor in Ex.P-9 had opined that the deceased would appear to have died of asphyxia due to strangulation.
(i) On 17.12.1991 at about 5.00 p.m. the Inspector of Police arrested the accused in the Karungalil-Paloor road junction in the presence of witnesses. On arrest, the accused gave a voluntary confession statement and the admissible portion of the same is marked as Ex.P-4. The accused took the police party and the witnesses to the shop belonging to one Chellappansamy and from the roof of the said shop, took out and produced MO-14 shirt and the same was seized under mahazar. The Inspector of Police proceeded further with the investigation and examined witnesses on the following days. Ex.P-15 is the chemical analysis report and Exs.P-16 and P-17 are serologist’s report. The Inspector after completing the investigation, filed his final report.
4. When questioned under Section 313 of Crl.P.C., the accused denied any involvement in the murder of the deceased. He pleaded that he has been falsely implicated in this case.
5. PW-10 is the Doctor attached to the Government Hospital, who conducted post mortem pursuant to the requisition Ex.P-8 made by the Inspector of Police. Ex.P-9 is the post mortem certificate. We have already referred to the post mortem certificate in detail and suffice to say that the Doctor therein had opined that the deceased would appear to have died of asphyxia due to strangulation. In fact, an attempt was made in the cross examination to disprove the opinion given by the Doctor by putting a suggestion to the effect that the injuries sustained could have also been caused by the person falling down. The Doctor has stoutly denied the same. That being so, the medical evidence is clear that the deceased died only of homicidal violence.
6. 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. 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.
7. Now the endeavour of the Court is to see what are the circumstances relied on by the prosecution and whether the prosecution has established those circumstances and the proved circumstances lead to the one and only irresistible conclusion that it was the accused who committed the murder.
8. The circumstances relied on by the prosecution are,
(1) PW-3 Rahini, neighbour of PW-1 and also younger brother’s wife of PW-1 seeing the accused coming out of the house through the northern entrance at about 10.00/11.00 a.m. on 16.12.1991.
(2) The evidence of PW-4 Saroja, who also saw the accused coming out of the house of the deceased and also had conversation with the accused and to whom the accused told that he met the deceased and informed her about his pilgrimage to Sabarimalai.
(3) The Extra-Judicial Confession made by the accused to PW-7 Pooradan on 17.12.1991 at 2.00 p.m.
(4) The recovery of MO-14 blood stained shirt of the accused.
(5) The Serologist’s report which would show that MO-14 stained with human blood, the group being that of the deceased.
Let us proceed to consider in detail each of the above circumstances one by one.
9. PW-3 is none else than the brother’s wife of PW-1. Ex.P-20 is the plan prepared by the Investigating Officer, which is not disputed. From the said plan, it could be seen that the distance between the house of PW-3 and that of PW-1 is just 100 feet. There are two entrances to the house of PW-1, one on the southern side and the other on the northern side. PW-1 used to go to his job early in the morning at 7.00 a.m. and return back at 10.00 p.m. The other inmate in the house is PW-2, daughter of PW-1 and the deceased and she used to go to school at 9.45 a.m. and return back at 12.30 p.m. PW-3 has categorically deposed that on 16.12.1991 at about 10.00 a.m., she was standing west of her house when she heard somebody shouting “Inah mg;gh vd;id bfhy;Yfpwhnd” from the house of PW-1. Shortly thereafter, the accused came out of the house of PW-1 through northern side entrance and proceeded. PW-4 resides about 30 feet north of PW-3’s house. At that time, PW-4 was also standing outside her house. PW-3 drew the attention of PW-4 and asked her as to whether she could recognise that person, for which PW-4 replied in the positive. After PW-2 came back from the school and entered the house, she saw her mother lying dead. She immediately raised alarm, which attracted Pws.3 and 4. PW-3 immediately sent a word to PW-1 through PW-12, who is none else than the brother’s son of PW-1. Thus, PW-1 arrived at the scene by 1.30 p.m. PW-1 after enquiring PW-3 as to what happened, went to the police station and gave complaint at 3.30 p.m. The express F.I.R. was prepared and the same was sent to Court, which reached the Court by 5.00 p.m. In the said complaint, PW-1 specifically mentioned about his enquiring PW-3 about the occurrence and her informing him about the crying noise she heard and accused coming out of the house from the northern entrance. From this it is clear that PW-3 should have heard the cry of the deceased and also saw the accused coming out of the house of PW-1 through northern entrance. We went through the cross examination of this witness and we do not find anything to discredit her testimony.
Of course, the learned counsel for the appellant contended that this witness could not have been present and that she has deposed falsely for various reasons. Firstly the learned counsel contended that she is not on talking terms with the accused and hence she should have come forward to utter falsehood. It is too difficult to accept that whenever a person is not on talking terms with another, he would implicate that person in a serious crime like this. The other submission made by the learned counsel is if really the shirt of the accused was stained with the blood, PW-3 should have noticed the same and deposed to that effect. She not having done so, it has to be presumed that she would not have noticed the accused coming out of the house of the deceased. The accused was at the relevant time wearing sandalwood colour shirt and because of that, may be she might have failed to notice the blood stains on the shirt of the accused. In fact, the Supreme Court in the decision reported in 2002 SCC (Crl) 897 (Jayawant Dattatraya Suryarao v. State of Maharashtra) has ruled that the power of perception varies from person to person. We are of the view that the prosecution has proved this circumstance.
10. The next circumstance relied on by the prosecution is the evidence of PW-4 who also saw the occurrence and also had a conversation with the accused. PW-4 has clearly deposed that she saw the accused and asked him about the reason for his visit, for which he replied that he had come to inform the deceased about his pilgrimage to Sabarimalai. Thereafter PW-4 put a question to the accused whether he had informed the deceased, for which he replied in the affirmative. This witness also deposed about PW-2 crying after seeing her mother lying dead and herself and PW-3 rushing to the house of the deceased. We have carefully perused the evidence of PW-4 and we are satisfied that this witness has spoken the truth before Court. Of course, the learned counsel contended that in Ex.P-1, the name of PW-2 does not find a place. It has to be remembered that the complaint was given by PW-1. He enquired only PW-3 about the occurrence before giving complaint. It is not as if PW-1 enquired each and everyone in that area. Secondly, this witness was examined at the time of inquest. The inquest report reached the Court on the very next day. Above all, this witness has no axe to grind against the accused. The only bald suggestion put to this witness was that she is a close friend of PW-3 and she obliged PW-3 by implicating the accused, who is not on talking terms with PW-3, in the crime. We do not think that for this reason this witness would go to the extent of implicating the accused in a very serious crime. We are satisfied that the prosecution has established the this circumstance also.
11. The next circumstance relied on by the prosecution is the extra judicial confession made by the accused to PW-7. PW-7 has deposed that the accused told him that he went to the house of the deceased to get some money and at that time he murdered her since she refused to have sexual affair with him. We examined the testimony of PW-7 and we straight away say that we are not prepared to believe the said evidence. This is because of various reasons. It is not as if PW-7 is a close friend or relative of the accused. We are of the view that the prosecution has not proved this circumstance.
12. The accused was arrested on 17.12.1991 at 5.00 p.m. in the junction of Karungalil-Paloor road and gave a confession statement and that he took the police party and witnesses to the shop of one third party and from the roof he took out and produced MO-14 shirt. According to the Serologist’s report, the shirt found to contain same blood group as that of the deceased.
The learned counsel for the appellant contended that the recovery cannot be believed for two reasons viz., (1) Such a blood stain was not noticed by PW-3, and (2) Witness, who attested the mahazar is a police witness being driver of the taxi. We do not find any substance in these objections. We have already mentioned that as far as PW-3 not mentioning about the blood stain would not in any way affect the prosecution case because it might be that she might not have observed it. As far as the mahazar witness is concerned, it cannot be said that every taxi driver would be obliging the police. Thus, we believe the recovery of MO-14, blood stained shirt of the accused.
13. Thus, we find the prosecution has established the circumstances 1, 2, 4 and 5 and in our considered opinion these circumstances lead to the one and only irresistible conclusion that it was the accused who caused the murder of the deceased.
14. There are no merits in the appeal and consequently the criminal appeal stands dismissed. The conviction and sentence imposed on the appellant/accused by the learned Principal Sessions Judge, Kanyakumari at Nagercoil by his Judgment dated 19.7.2000 in S.C.174 of 1998 are hereby confirmed.