IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10-06-2008 THE HON'BLE MR.JUSTICE P.D.DINAKARAN AND THE HON'BLE MR.JUSTICE K.N.BASHA CRIMINAL APPEAL NO: 1098 OF 2007 Govindan .. Appellant vs State rep.by Inspector of Police, Jalakandapuram Police Station, Salem District (Crime No.402 of 2002) .. Respondent Appeal filed under Section 374 (2) Cr.P.C against the judgment dated 17.3.2005 made in S.C.No.61 of 2004 on the file of the learned I-Additional Sessions Judge, Salem. For appellant : Mr.V.Sairam For respondent : Mr.N.R.Elango, Addl.Public Prosecutor JUDGMENT
(Judgement of the Court was delivered by P.D.DINAKARAN,J.,)
The appellant was tried in S.C.No. 61 of 2004 on the file of the learned I-Additional Sessions Judge, Salem and was found guilty, convicted and sentenced to undergo imprisonment for life and also to pay a fine of Rs.500/-, in default to undergo rigorous imprisonment for six months for the offence under Section 302 IPC, and to undergo rigorous imprisonment for five years and also to pay a fine of Rs.250/-, in default to undergo rigorous imprisonment for two months for the offence under Section 201 IPC, ordered to run concurrently. Hence the appellant is before this Court with the present appeal.
2. The Inspector of Police, Jalakandapuram laid a charge sheet stating that on 18-19/10/2002 at about 1.00 a.m., at the house of the accused Govindan of Kottaimedu, Soorapalli Village, due to petty quarrel with his wife deceased Kannammal and also suspecting her fidelity, kicked her with his leg on her chest and face and also strangulated her neck with her Saree and caused fracture of hyoid bone and fracture of right side ribs and thereby the said Kannammal died of effects of multiple injuries and also caused the evidence of the commission of the said offence to disappear by digging a pit at the western side of the wall of his house and buried the dead body of his wife in the said pit and thus, committed the offence punishable under Section 302 and 201 IPC.
3. When the accused was initially questioned with regard to the charges levelled against him, the accused refuted them and asked for trial. On behalf of the prosecution P.Ws.1 to 14 were examined and Exs.P1 to P.12 were marked, besides M.Os.1 to 5.
4. The case of the prosecution as revealed from the prosecution witnesses is as follows:-
(a) P.W.1 Madhammal who is the mother of the deceased Kannammal is residing at Kottaimedu within the limits of Jalakandapuram Police Station. P.W.2 Rajendran is her son and he is residing with P.W.1. P.W.6 Raja @ Rajamani is residing at Kottaimedu with his wife P.W.5 Selvi, daughter of P.W.1 Mathammal, Witnesses Venkatachalam who is the son of P.W.1 Mathammal, P.W.7 Seerangammal are also residing at Kottaimedu. The accused who is the husband of Kannammal belongs to Chettipatti Village and after marriage he stayed at Kottaimedu and lived with his wife in a garden house near the house of P.W.1 Madhammal and other witnesses. There were frequent quarrels between the deceased Kannammal and the accused Govidnan and also the accused Govindan suspected the fidelity of his wife Kannammal, which was another reason for frequent quarrels between them. This is known to the witnesses residing nearby the garden house of the accused Govindan. One month prior to the occurrence, because of the quarrel, the deceased Kannammal came and resided with P.W.1 Madhammal for about a month. Then the accused came to the house of P.W.1 Madhammal and requested to send her along with him and P.W.1 Madhammal after giving due advice to her daughter Kannammal sent her back to the house of the accused Govindan and this happened on a Friday. On the next day, when P.W.1 Madhammal went along the house of the accused Govindan, she saw the accused Govindan sitting in the pial of the house and when asked about her daughter, he told her that she had gone for Jalakandapuram. Again when in the evening P.W.1 Madhammal went to see her daughter, she found the door locked and hence she returned to her house. Again in the morning of Sunday when she went to the house of her daughter, she found the door locked and the accused Govindan was also absent. Hence, she searched for her daughter on that day along with relatives and sons and could not know about the whereabouts of her daughter Kannammal.
(b) On the next day, i.e., on Monday morning with the use of a key which had been given to her by the daughter of the deceased, she opened the door and went inside the house and she sensed bad smell emanating and also found a new mud plaster near the western wall of the house and suspecting that her daughter would have been killed, she came out of the house and raised an alarm. On hearing the alarming sound, P.W.2 Rajendran came there and he also went into the house and found the symptoms seen and P.W.1 Madhammal prepared a written complaint Ex.P.1 and went to Jalakandapuram Police Station at about 10.30 a.m., and gave the same to the Sub Inspector of Police (P.W.12). On receipt of the complaint, he registered a case in Crime No:402/02 under Section 302 and 201 IPC against the accused and prepared printed form of FIR, Ex.P.10 and sent those records to the concerned authorities.
(c) P.W.13, Inspector of Police, who was then put in charge of Jalakandapuram Police Station commenced investigation after obtaining Ex.P.10 FIR and went to the scene of occurrence at about 11.00 a.m., and prepared rough sketch Ex.P.11. Since the body was under buried condition, he gave requisition letter Ex.P.9 to P.W.11, Tahsildar for conducting inquest. On receipt of Ex.P.9 requisition on 21.10.2002 at about 3.00 pm., P.W.11, Tahsildar went to the occurrence house at about 9.00 a.m., observed the surroundings and with the help of the Village Administrative Officer, exhumed the body buried near the south western wall of the house and the body of the lady was brought out. P.W.13, Inspector of Police prepared observation mahazar Ex.P.5 in the presence of P.W.3 Raja and witness Elango. He also caused taking of Photographs (Ex.P.6 and Ex.P.7 series) of the occurrence place and the body. P.W.1, Madhammal, P.W.2 Rajendran and others identified the body as that of Kannammal. P.W.11 Tahsildar conducted inquest and prepared Inquest Report Ex.P.8 and enquired witnesses and also prepared Exhumation Report Ex.P.9 and sent requisition to Dr.Vallinayagam (P.W.4) to come and conduct postmortem on the spot itself.
(d) P.W.4, Dr.Vallinayagam on receiving the requisition of the Tahsildar on 21.10.2002 at about 3.00 p.m., went to the spot on 22.10.2002 at about 9.00 a.m., and conducted autopsy on the exhumed body of a lady and after the post-mortem he issued Ex.P.4, Exhumation Report and Post-mortem certificate wherein he noted the following injuries:-
“1. Contusion on front and sides of neck 15 x 8 x 3 cm dark red.
2. Fracture of hyoid bone present.
3. Fracture of ribs on right side 2 to 9 present and left side 2 to 8 present.
4. Laceration of right lung 3 x 2 x 1 cm and left lung 4 x 2 x 1 cm. Right plural cavity contains 60 ml fluid blood and left side 50 ml.”
(e) In the meanwhile, the Inspector of Police enquired the witnesses and recorded their statements. On information at about 4.00 pm., on the Jalakandapuram-Nagavalli Road, near the Geetharamakrishna Mill Bus Stop, he arrested the accused and enquired him and recorded his statement in the presence of the VAO and Village Assistant and recorded his statement and on the basis of the confession statement Ex.P.12 given by the accused, he went to the occurrence house at about 5.00 p.m., and recovered the Spade (M.O.1) and Iron Crowbar (M.O.2) in the presence of the witnesses, which were alleged to have been used in connection with the crime. After post-mortem, P.W.10 Police Constable recovered M.Os 3 to 5 being Sari, Jacket and Pettycoat from the dead body and entrusted them to the Police Station. P.W.13 Inspector of Police, who had gone on leave and returned to duty and on perusal of records and investigation done by P.W.13, laid charge sheet against the accused under Sections 302 and 201 IPC.
5. After the conclusion of the prosecution evidence, the appellant was questioned under Section 313 Cr.P.C., with regard to the incriminating materials adduced by the prosecution against him, for which, the appellant denied complicity of the commission of the offence stating that he never lived with his wife Kannammal in the house where from her dead body was exhumed and he was not at all residing at Kottaimedu, the place of occurrence, during the relevant period as he was working in a quarry at Bangalore. Neither oral, nor documentary material has been produced on the side of the defence. The learned Sessions Judge after hearing the oral arguments of both sides, documentary evidence and material objects, convicted and sentenced the appellant as mentioned earlier. Aggrieved against the same, the present appeal is preferred.
6. Learned counsel for the appellant contended that this case being purely based on circumstantial evidence alone, there is no link to connect the circumstantial evidence and thus the prosecution has failed to prove its case beyond all reasonable doubts, particularly when the accused has offered sufficient explanation in support of his defence of alibi.
7. However, the learned Additional Public Prosecutor, contended that the motive as well as the commission of the offence by the accused has been established beyond all reasonable doubts by the prosecution. He has placed reliance on the oral evidence of the prosecution witnesses and also the medical evidence.
8. We have given our careful consideration to the material evidence available on record and heard the rival submissions of the counsel appearing on either side.
9. It is the medical evidence that the deceased was strangulated and the hyoid bone had been found to be fractured, besides fracture of ribs on the right side 2 to 9 and left side ribs 2 to 8. There was also contusion on front and sides of neck 15x 8 x 3 cm of dark red. P.W.4, the Doctor who conducted the post-mortem also opined that the deceased would have died of effects of multiple injuries. Thus, the external and internal injuries found on the body of the deceased would amply reveal that it is a homicidal death.
10. Now, the point that arises for consideration in this appeal is whether the prosecution has brought home the guilt of the accused beyond all reasonable doubts?
11. It is a case of uxoricide i.e., husband murdering his wife. The conviction is solely based on the circumstantial evidence. P.W.1 is the mother of the deceased. P.W.2 is the brother of the deceased. P.W.6 is the cousin of both the deceased as well as the accused. P.W.7 is an independent witness who corroborates the evidence of P.W.1. These witnesses speak about the motive. P.W.3 is the Village Administrative Officer who speaks about the arrest and recovery of M.Os 1 and 2. P.W.5 is the Doctor who conducted the autopsy. P.W.8 is the mahazar witness to Ex.A.5, Observation Mahazar. P.W.9 is the photographer who took photographs in the occurrence place. P.W.11 is the Tahsildar who speaks about the procedures followed while exhuming the dead body. P.W.13 is the Investigating Officer.
12. The law on the circumstantial evidence is now well settled by the Apex Court in a number of judgments. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, the Apex Court has held that “while dealing with circumstantial evidence, the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea”.
13. In Padala Veera Reddy v. State of Andhra Pradesh (1989 Supp (2) SCC 706), the Apex Court has laid down the following tests for consideration in a case of circumstantial evidence:
“(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.”
14. The above judgments were quoted with approval by the Apex Court in the judgment in Manjunath Chennabasapa Mudalli v. State of Karnataka (2007) 3 SCC (Crl.) 101. That apart, the Apex Court has also held in Sudama Pandey v. State of Bihar (2002 SCC (Crl.) 239 that the prosecution must establish its case without any missing link.
15. Keeping the above law laid down by the Apex Court in mind, we will have to analyse the circumstances put against the accused in the case on hand.
16. For every crime, there must be some motive and particularly when the case is based on circumstantial evidence, the motive aspect gets importance and the motive for the crime must be clearly established by the prosecution. Though there is no reference in the FIR as to the suspicion of fidelity of the deceased wife by the accused husband, P.W.1 Madhammal and P.W.2 Rajendran have clearly deposed that there were frequent domestic quarrels between the accused and the deceased and the deceased would used to report them that the accused insisted her to give money for taking drinks and whenever he consumes drinks he would beat her. P.W.6 also corroborates this version. That apart, P.W.1 has deposed in her evidence that her daughter was working in a coconut mundi and if she would come late, the accused would suspect her fidelity and would quarrel with her. Further, on behalf of the accused it was suggested to the prosecution witnesses that the deceased had illicit intimacy with one Arumugam, which itself goes to show that the motive part of the prosecution case has been accepted by the accused himself.
17.1 Secondly, to disprove the theory of alibi, we have to look into the evidence of the prosecution witnesses, particularly P.W.1, mother of the deceased, to decide whether the accused was present on the date of occurrence. According to P.W.1 Madhammal, mother of the deceased, after marriage, the accused and her daughter Kannammal were residing in Sedampatti which is the village of the accused Govindan, and some time later they came to Kottaimedu and her son Vankatachalam gave some place in his land for constructing a house for them and a thatched house was constructed there in which they were residing.
17.2. P.W.1 further deposed that her daughter Kannammal went to coconut Mundi for cooly work but the accused Govindan did not go for any work, that there were frequent quarrels between them and her daughter used to complain that the accused was insisting her to give money for drinks and after taking drinks he would beat her, that one month prior to the occurrence her daughter Kannammal came to her house and stayed along with them and at the end of the month the accused came and wanted to take his wife Kannammal and she advised them to live without any quarrel and the accused took Kannammal along with him on a Friday and on that day itself she saw the accused picking up quarrel with the deceased in a drunken mood, and hence she reprimanded him saying that inspite of her advice to live happily they were picking up quarrel and she pacified them.
17.3. She further deposed that on the next day i.e., on Saturday when she came near the house of the daughter Kannammal the accused was sitting in the pial and when she asked about her daughter he told her that she had gone for Jalakandapuram and when in the evening she again went she saw the house locked and she returned back and on the next day also she saw the house of her daughter locked and then she searched for her daughter along with her relatives, and it is usual for her to take meals sometime in the house of her daughter and hence she was having one key of the house along with her and on Monday morning she using that key, opened the door of the house and when she went inside the house, she smelt bad odour and near the end of the western wall, she saw newly pasted mud with some cracks on it and on entertaining doubt she came out and shouted and hearing her sound P.W.2 and other came there and later she gave the complaint.
17.4. P.Ws.2, 5 and 6 have corroborated the evidence of P.W.1, Madhammal that the accused Govindan and the deceased Kannammal lived in a thatched house and there were frequent quarrels between them. No ulterior motive could be attributed to them. P.W.7, a nearby resident, who is an independent witness has also deposed in support of the prosecution case. Hence it is clear that at the time of occurrence the accused was living with his wife Kannammal in the above mentioned house.
17.5 It is well settled law that mere explanation is not sufficient and it must be proved by preponderance of probabilities by leading evidence. Therefore, the defence of alibi has been rightly negatived by the trial court itself holding that the prosecution witnesses speak about the presence of the accused along with his wife in his house at the time of occurrence and further the accused did not make any attempt to examine any witness to support the defence of alibi, except offering an explanation.
17.6 Therefore the explanation offered by the accused is found to be wrong, as the burden is still heavy on the accused to prove that he was not involved in the offence. Our above view is fortified by the judgment of the Supreme Court in Trimukh Maroti Kirkan v. State of Maharashtra (2007) 1 SCC (Crl.) 80), wherein it has been held by the Supreme Court that if the accused fails to offer any cogent explanation or offers an explanation which is untrue, then it can be treated as an additional link in the chain of circumstance against the accused to make it complete. Again in State of Rajasthan v. Kashi Ram (2007) 1 SCC (Crl.) 688), the Supreme Court has held that the failure of the accused to give satisfactory explanation to an incriminating circumstance which was within his special knowledge amounts to failure to discharge the onus which lies on accused and that itself provides an additional link in the chain of circumstances proved against the accused.
17.7 It is the evidence of P.W.13, Inspector of Police that on receipt of information on 22.10.2002 at about 4.00 pm., near Geetharamakrishna Mill Bus Stop in Jalakandapuram-Nangavalli Road, he arrested the accused in the presence of VAO and one Sithayyan and enquired and recorded his statement and based on his confession, he recovered the crowbar and spade at about 5.15 pm., which were used for burying the dead body, under Ex.P.2 seizure mahazar. P.W.3 VAO has deposed that the body of the deceased which was buried in her house was exhumed by the Tahsildar, the Police Officials and witnesses. There is no necessity for the VAO to falsely implicate the accused and to support the case of the prosecution.
17.8 It has been clearly established that the accused Govindan and the deceased Kannammal were residing in the occurrence house at the time when the occurrence took place. They had no children. It is not the case of the prosecution or the defence that some third person was living with them. So only they two were living in the house. The dead body of the deceased Kannammal was found buried inside the house where the accused and deceased Kannammal were residing there. P.W.1 has last seen the deceased in the company of the accused on Friday i.e., two days prior to the exhumation of the body. After exhuming the body in the presence of witnesses, P.W.1 mother of the deceased identified the body as that of her daughter Kannammal. In such a circumstance, it is for the accused to explain as to how the body of Kannammal was buried inside the house where only they two were living. Ordinarily, if the wife was found missing, the husband would search for her. However, in this case, the husband absconded till his arrest by the police. Therefore, it is for the husband to offer explanation as to how the dead body of his wife came to be buried in his locked house. Lack of such explanation on the part of the appellant itself would be a circumstantial evidence against him. Since no explanation being offered in this regard, it is a strong circumstance against the accused by drawing adverse inference against him and in favour of the prosecution case. Therefore, the total denial by the accused of his involvement in the commission of offence is not sustainable.
18. Ultimately, Learned counsel for the appellant, while referring to the cross examination of P.W.4, Doctor, who conducted the post-mortem, would submit that even before exhuming the body, the name of the deceased as Kannammal has been mentioned in Ex.P.3 autopsy requisition letter sent to him by the Tahsildar. But a perusal of Ex.P.3 would show that the name of Kannammal does not find a place and it has been mentioned only as “exhumation of the dead female murdered and buried”. However, the name of Kannammal finds a place in the requisition sent by the Inspector of Police to the Tahsildar. Even then, taking into consideration the factual background of the case viz., frequent quarrels between the accused and the deceased over demand of money and on suspicion of her fidelity; both the accused and the deceased were last seen by P.W.1; subsequent missing of the deceased for two days; and on the third day, when she opened the locked door in search of her, found fresh mud paste and sensed bad smell; are all sufficient for P.W.1, mother of the deceased, to suspect that it is her daughter who might have been killed and buried in that place by the accused. That is why she has mentioned even in her complaint about the murder and burial of her daughter by the accused. After exhuming the female dead body, she identified the body as that of her daughter. Therefore the mentioning of the name in the requisition letter even before exhumation of the dead body cannot be found fault with in the present case. Therefore, this argument of the learned counsel for the appellant cannot be sustained.
19. Therefore, we are of the opinion that the prosecution has established beyond all reasonable doubts that the accused and the deceased were living together on the date of occurrence, there were frequent quarrels between them, which is spoken to by the neighbours and prosecution witnesses; P.W.1, mother of the deceased has last seen the deceased in the company of the accused; thereafter she was not seen and missing for two days; after making hectic efforts in search of her daughter on the previous day with the help of her relatives, on 21.10.2002 when P.W.1 went inside the house after unlocking the door, found new mud paste with cracks and sensed foul smell; then on suspicion gave complaint; after exhuming the body in the presence of Tahsildar and Police officials, P.W.1identified as that of her daughter; the next day the accused was arrested and based on the confession statement, the Spade and Crowbar used for burying the dead body were recorded. Therefore, the prosecution has proved each and every link in a complete manner so as to complete the chain of circumstance. Thus, all the circumstances narrated above, put together, would lead to the inference that the it is only the accused who committed the offence without giving room to any other hypothesis. Therefore, we have no reason to differ with the findings of the learned Trial Judge.
20. We, therefore, are of the opinion that no case has been made out for interference with the impugned judgment. Considering the heinous nature of the crime, we are not inclined to reduce the sentence. The appeal fails and is dismissed accordingly.
Index : yes (P.D.D.,J.) (K.N.B.,J.) Internet: yes 10.06.2008 gkv To 1. The I Additional Sessions Judge, Salem. 2. -do- thru' the Principal Sessions Judge, Salem. 3. The Judicial Magistrate No.II, Mettur Dam. 4. -do- thru' the Chief Judicial Magistrate, Salem. 5. The Superintendent, Central Prison, Coimbatore. 7. The Public Prosecutor, High Court, Madras 8. The District Collector, Salem 9. The Director General of Police, Chennai 10.The Inspector of Police, Jalakandapuram Police Station. P.D.DINAKARAN, J., and K.N.BASHA, J., Judgment in Crl.A.No.1098 of 2007 Dated 10.06.2008