IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28/10/2002
CORAM
THE HONOURABLE MR.JUSTICE N.DHINAKAR
AND
THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA
Criminal Appeal No.855 of 1997
N.J.Suraj .. Appellant
-vs-
State rep. by Inpsector
of Police,Kattoor Police
Station, Coimbatore. .. Respondent
Appeal against the judgment of the learned Principal Sessions Judge,
Coimbatore, made in S.C.No.180 of 1996 dated 16.10.1997.
!For Appellant : Mr.V.Gopinath, S.C.,
for Mr.K.Selvarangan
^For Respondent : Mr.V.M.R.Rajendran
Addl. Public Prosecutor.
:J U D G M E N T
(Judgment of the Court was delivered by N.DHINAKAR, J.)
The sole appellant, who, in the judgment, will be referred to
as ‘the accused’, was tried before the learned Principal Sessions Judge, in
Sessions Case No.180 of 1996, on a charge of murder on an allegation that at
about 2.00 or 2.30 a.m. on 23.3.94, he caused the death of Shali, his wife,
by smothering and by causing asphyxia. He was also charged under Section 201
I.P.C. on an allegation that after causing the murder of Shali, he attempted
to screen the offence by leaving a suicide note at the scene, as if, it was
written by the deceased Shali. The learned trial judge convicted and
sentenced him to two years rigorous imprisonment for the said offence under
Section 201 I.P.C. while convicting and sentencing him to imprisonment for
life for the offence of murder. Hence, the appeal.
2. Shorn of unnecessary details, the facts necessary to
dispose of the appeal can be briefly summarised as follows:-
The deceased is the daughter of P.W.7. The accused was
running a printing press under the name and style of Prompt Printers at
Tirussur in Kerala. The deceased was staying with her father at Paliseri
Village near Tirussur and was employed in the printing press of the accused.
P.W.7 was a tailor by profession. The deceased studied up to 1 0th standard.
She fell in love with the accused and wanted to marry him. Accordingly, on
19.3.94, she married him and the marriage was registered at the Office of the
Sub Registrar, Tirussur. Ex.P.6 is the certificate issued by the Sub
Registrar, showing the marriage between the accused and the deceased. The
said fact was not known to the parents of the deceased and the parents of the
accused were against the marriage and therefore, wanted the said marriage to
be annulled. It is the further case of the prosecution that on 22.3.94,
Ex.P.7 was registered at the same office annulling the said marriage, though
the said deed was not signed nor was it presented for registration by the
deceased and it was presented on behalf of the accused. On 22.3.9 4, the
deceased left her house, carrying with her a tiffin box, M.O.1 1, after
informing her father that she is going to Prompt Printers for her job. She
was not seen alive thereafter by P.W.7. At about 6.3 0 p.m. on 22.3.94, the
deceased and the accused went to Chitra Lodge at Coimbatore, where P.Ws.1 and
4 were working as receptionist and room boy respectively and asked for a
double bed room after intimating P.W.1 that he and the deceased are husband
and wife. The accused has stated that his wife had to attend an interview on
the next day and therefore, they had to stay in the lodge for the night.
P.W.1 obtained Rs.120/- from the accused and allotted room No.59. The accused
made entries in the Check-in register, Ex.P.1 and the said entries are Ex.P.2.
He wrote his name as Joshy, C.A., Chalayil House, Trivandrum and has also
mentioned in the said register that the purpose of visit is to attend an
interview. A receipt was also issued for the receipt of Rs.120/- and the said
receipt stands marked as Ex.P.4. and the receipt book is Ex.P.3. P.W.4, the
room boy, took the accused and the deceased to room No.59 and after getting
tea for them, left the room. P.W.1 also saw the accused and the deceased
leaving the room and returning at about 8.30 p.m. On return, they entered the
room and locked it from inside. P.W.4 went away in connection with his other
duties. At about 9.00 or 9.30 p.m. on 22.3.94, P.W.4 went home after handing
over charge to P.W.1 and returned on the morning of 23.3.94. He found room
No.59 locked from outside and when questioned, P.W.1 told him that the
persons, who were occupying the room, would have gone out. P.W.4 did not
bother to verify. On 24.3.94, as usual, he came and joined duty and purchased
coffee and tea for the occupants in the lodge. At about 8.30 a.m., he went to
the annexe building, where room No.59 was situate and found the room locked
from outside. He noticed a foul smell emanating from the said room and
therefore, informed P.W.1 and at that time, P.W.3, the Assistant Manager of
the lodge, was also present. They went near the room and felt the foul smell
and therefore, sent information to Venkatachalam, the owner of the lodge.
After the arrival of the owner Venkatachalam, a complaint, Ex.P.5 , was
drafted by P.W.3 and the same was taken to the police station at Kattoor,
where it was handed over to P.W.16, the Sub-Inspector. P.W.16, on receipt of
the complaint, Ex.P.5, registered a case in Crime No.828 of 1994 under Section
174 Cr.P.C. by preparing express reports. Ex.P.44 is a copy of the printed
first information report. The express reports were sent to the Court as well
as to the higher officials. On receipt of the intimation, P.W.18, the
Inspector of Police, reached the police station, where he obtained a copy of
the printed first information report. He left for the scene of occurrence
after requisitioning the services of the sniffer dog, the finger print experts
and others. On reaching the scene of occurrence with his police party, he
found the room locked from outside and therefore, broke open the door and
entered the room and inside the room, he found a girl lying dead on the cot
and a hand bag was seen by the side. There were also a tiffin box, M.O.11 and
an yellow polythene bag, M.O.27. In the presence of witnesses, he prepared an
observation mahazar, Ex.P.19 . He also drew a rough sketch, Ex.P.45. The
scene of occurrence was caused to be photographed and M.O.46 series are the
photographs and M.O.47 series are the negatives. He searched the place. In
the hand bag, he found a certificate issued by the University and other
certificates. He also found a purse containing the name of Puthur Jewellery.
A sum of Rs.111/- and coins to the tune of Rs.8.55 were also seen in the bag
and the officer, from the certificates, came to know that the girl, who is
lying dead, hails from Tirussur. He asked P.W.17, the Sub-Inspector, to go
over to Tirussur to make enquiries. Thereafter, P.W.18 conducted inquest over
the dead body of the girl between noon and 3.45 p.m. in the presence of
panchayatdars and at the time of inquest, he examined P.Ws.1 to 4 and others.
Ex.P.46 is the inquest report. He seized the jewellery, which were on the
body of the deceased, under a mahazar, Ex.P.20, attested by witnesses. After
the inquest, a requisition, Ex.P.15, was sent to the doctor for conducting
autopsy.
3. On receipt of the requisition, P.W.11, the Tutor in
Forensic Medicine, Coimbatore Medical College Hospital, Coimbatore, conducted
autopsy on the body of the female aged about 23 years and found the
following:-
“Body bloated. Post-mortem blebs seen on the front of the chest, abdomen &
right upper limb. Face bloated. Tongue & eye balls protruded. Cornea
collapsed. There was petecheal haemorrhages in the sclera of both eyes.
Scalp hair easily peelable. Post-mortem peeling of the skin noticed in the
whole of left upper limb and was discoloured. Face blackened. Skin over the
rest of the body was easily peelable. Marbling was present in both thighs.
Finger nails bluish. Blood stained frothy decomposition fluid seen
discharging from the nostrils & vagina.
1. Diffuse contusion with black discolouration of the skin noticed over the
back of middle of the trunk 10 x 12 cm. C/s. revealed subcutaneous bruising.
2. Contusion 9 x 6 cm. in the midline of the back of the abdomen in the
region of both loins. C/s. revealed subcutaneous bruising.
3. There was an oblique incomplete abrasion seen around the upper part of the
neck over an area 28 x 1.5 cm. encircling the neck, and it resembles a
ligature mark. The point of suspension is made out in the region behind &
below the right ear. The skin was adherent to the subcutaneous plane and was
not easily peelable. It was parchment like c/s was pale. Bloodless
dissection of the neck revealed nul injury to the soft tissues underneath the
ligature mark. Hyoid bone and larynx were intact. Trachea, mucus shows
evidence of post-mortem staining. Trachea contained blood stained frothy
fluid.
4. Circular abrasion 6 x 4 cm. surrounded by contusion seen on the left
cheek. It was reddish black in colour. Injuries are ante-mortem. Hypostatic
post-mortem lividity seen along the left lateral aspect of chest, abdomen &
left thigh & left upper limbs. Left upper discoloured & was blackish red in
colour.”
The doctor issued Ex.P.16, the post-mortem certificate and Ex.P.18, the final
opinion, opining that the post-mortem findings are not inconsistent with death
due to asphyxia as a result of hanging.
4. In the meantime, P.W.17, who was deputed to Tirussur for
the purpose of investigation by P.W.18, went to the house of the deceased and
the hand book maintained by the deceased containing her hand writing and
signature was seized under a mahazar, Ex.P.10, after it was produced by P.W.7.
He also seized M.Os.24 and 26, the two group photographs under the said
mahazar. He seized some documents from Prompt Printers. He questioned
witnesses and recorded their statements. He went to the Office of the Sub
Registrar on 25.3.94 and after giving a requisition, obtained a copy of the
certificate showing the registration of the marriage of the deceased with the
accused on 19.3.94. The Registrar issued Ex.P.6, the copy and on perusing the
same, he found that the annulment of the marriage was also registered under
Ex.P.7. He questioned the Sub Registrar and recorded his statement. At
Tirussur bus stand, he questioned some witnesses, where he was given a
passport size photograph of the accused. After completing his investigation
at Tirussur, he returned to Kattoor police station on 26.3.94 and handed over
all the documents to P.W.18. In the meantime, P.W.18 , continuing with his
investigation, seized M.Os.1, 7 to 23, 25, 27, 28, 33 to 40, which were lying
at the scene of occurrence, under a mahazar Ex.P.21 attested by witnesses. He
questioned witnesses and recorded their statements. At 8.30 a.m. on 25.3.94,
he went to Coimbatore Medical College Hospital, where he found P.W.7, the
father of the deceased and others. P.W.7 identified the dead body as the body
of his daughter. He questioned Jose, who was present along with P.W.7 and
recorded his statement. He perused all the statements of the witnesses
recorded by P.W.17 and also the certificates and other documents seized by
him. He questioned witnesses and recorded their statements. He also made
arrangements to obtain the finger prints of the employees of the lodge. On
29.3.94, the post-mortem certificate was received by the officer and on
receipt of the same, he came to know that Shali has suffered injuries due to
violence. He, thereafter, altered the crime to one under Section 302 I.P.C.
by preparing express reports. Ex.P.47 is the express report. He searched for
the accused and sent a police constable to Tiruvananthapuram, who returned
later and informed him that the accused is not available. All the documents
were sent to Court. The material objects seized from the scene of occurrence
were sent to Court with a request to forward them for analysis. Ex.P.2, the
entries in the Check-in Register, Ex.P.1, were sent to the hand writing
expert, who gave Ex.P.43, his opinion, stating that it is not possible to
offer any reliable opinion by comparing the admitted signatures and
handwritings of the accused with the disputed hand writing and signature found
in Ex.P.2. P.W.18, on account of his illness, was admitted as in-patient and
was at K.G.Hospital between 28.4.94 and 7.5.94 and after his discharge, he
searched for the accused and came to know that the accused has surrendered
before the Judicial Magistrate No.2, Kovai, on 3.5.94. He gave a requisition
to the Court to take the accused into custody for the purpose of questioning
him. He also gave a requisition to the Court for conducting the Test
Identification Parade. On receipt of the requisition, P.W.10, the Judicial
Magistrate conducted Test Identification Parade on 17.5.94 and at the Parade,
P.Ws.1, 4, 6 and another witness correctly identified the accused. Ex.P.14
are the proceedings drafted by the said Magistrate regarding the Test
Identification Parade conducted by him. On the orders of the Court, the
accused was handed over to the police and at 5.00 p.m. on 17.5.94, he was
brought to the police station and was questioned in the presence of witnesses.
He gave a statement and the admissible portion is Ex.P.22. In pursuance of
the admissible portion, Ex.P.22, the accused took the police party to the
motor pump shed room at the lodge and on the way to the second floor, pointed
the switch board for motor starter, from where M.O.41, the key, was recovered
under a mahazar, Ex.P.23, attested by P.W.13. The accused, thereafter, took
the police party and pointed the shop of P.W.6, whose statement was recorded.
He also pointed P.W.9 and the officer questioned him and recorded his
statement. When P.W.6 was questioned, he produced a bill book, Ex.P.8, which
was seized under a mahazar. On 29.7.94, P.W.18 was promoted and therefore,
further investigation was taken up by his successor, P.W.19. P.W.19, on
taking up investigation, sent some of the documents to the hand writing expert
to compare them with the admitted hand writing of the accused and after
obtaining the reports, filed the final report against the accused on 13.12.94
under Sections 302 and 201 I.P.C.
5. The accused was questioned under Section 313 Cr.P.C. on
the incriminating circumstances appearing against him and he denied all the
circumstances and examined D.W.1 on his side.
6. D.W.1, in his evidence, stated that Josie is a friend of
the deceased Shali and Josie hails from Trivandrum. He has further stated
that the said Josie was introduced to him by Shali and according to him, the
accused and the deceased registered their marriage on 19.3.94 at the Office of
the Sub Registrar, Tirussur. He has further stated that on 22.3.94, he
produced a document before the Sub Registrar indicating the annulment of the
marriage and that he has signed as one of the witnesses. He has marked
Ex.P.7, the registered marriage annulment certificate issued by the Sub
Registrar. According to him that after the marriage was annulled and when he
was about to leave the Office of the Sub Registrar, Shali informed him that
she intends visiting Coimbatore, Ooty and other places along with her friend
Josie and that she was very much disappointed with the annulment of the
marriage and that she needs peace of mind. In short, the accused has examined
D.W.1 to show that the deceased left Tirussur in the company of Josie on
account of the annulment of the marriage and it is for Josie to explain the
circumstances under which Shali met her end.
7. The prosecution, to establish that the accused has
murdered Shali, relied upon circumstantial evidence since the occurrence was
not witnessed by any one. It is the settled principle of law that where there
is no eye-witness to the murder and the case against the accused depends
entirely on circumstantial evidence, the standard of proof required to convict
the accused on such evidence is that the circumstances relied upon must be
fully established and the chain of evidence furnished by these circumstances
should be so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and it is true that in
a case of circumstantial evidence not only should the various links in the
chain of evidence be clearly established, but the completed chain must be such
as to rule out a reasonable likelihood of the innocence of the accused. But
in a case where the various links have been satisfactorily made out and the
circumstances point to the accused as the probable assailant, with reasonable
definiteness and in proximity to the deceased as regards time and situation
and he offers no explanation, which if accepted, though not proved, would
afford a reasonable basis for a conclusion on the entire case consistent with
his innocence, such absence of explanation or false explanation would itself
be an additional link which completes the chain vide DEONANDAN MISHRA -vs-
STATE OF BIHAR ( A.I.R. 1955 S.C. 801).
8. Keeping the above principle in mind, we will now analyse
the evidence to find out whether the prosecution has succeeded in establishing
all the links in the chain of circumstances.
9. It is not in dispute that the dead body that was found in
room No.59 of Chitra Lodge at Coimbatore is the body of the deceased Shali.
P.W.7, the father of the deceased, in his evidence, stated that on the morning
of 22.3.94, Shali left the house for her job at Prompt Printers and that when
she left the house, she had M.O.11, a tiffin box and other articles. She did
not return home and finding that his daughter has not returned home, he went
to Prompt Printers, where he came to know that Shali did not come to the press
on that day. The said information was given to him by the brother of the
accused. Thereafter, he and his sister’s son, Rose went to the house of the
accused and made enquiries. The parents of the accused, who were present,
informed him that if Suresh, the friend of the accused, is enquired, they will
be able to get the information as to the whereabouts of the accused and the
deceased and therefore, P.W.7 went to the house of Suresh, which was at a
distance of 2 kms. from the house of the accused. When P.W.7 questioned
Suresh, he informed that the accused and the deceased have married each other
and the marriage was also registered at the Office of the Sub Registrar on
19.3.94 and that the accused and the deceased have left Tirussur at about
11.00 a.m. in a bus for Shoranur after informing him that they are going to
Bangalore via Shoranur. On getting this information, P.W.7 made arrangements
to contact his son Sandosi, who was at Bangalore and wanted him to detain the
deceased and the accused as soon as they alight at the railway station. He
also left for Bangalore accompanied by the father of the accused and Rose and
reached Bangalore at about 9.00 a.m. on 23.3.94. At Bangalore, they searched
for the accused and the deceased and the son of P.W.7 informed him that the
accused and the deceased did not come to Bangalore by train. According to
P.W.7, they could not trace either the accused or the deceased and therefore,
returned to Tirussur at about 11.00 a.m. on 24.3.94 and at 6.00 p.m., the
police officers from Coimbatore came to him and gave him the information about
the death of his daughter at the lodge in Coimbatore. The evidence of P.W.7,
therefore, shows that the deceased, who left the house on the morning of
22.3.94, was not seen alive thereafter by P.W.7 and her dead body was found on
the morning of 24.3.94 after P.W.18, the investigating officer, went and broke
open the door. P.W.7, on reaching the lodge and after looking at the dead
body, which was kept in the mortuary, identified the body as that of his
daughter not only from the physical features, but also from the clothes and
the other jewellery, which the deceased was wearing. Therefore, there can be
no doubt in the mind of the Court that the dead body, which was found in room
No.59 at Chitra lodge is that of Shali and the said fact is also not disputed
by the defence.
10. The next question that is to be decided by this Court is
whether Shali died a natural death or was murdered. Even at the outset we may
say that the materials placed before this Court do not indicate that Shali
died a natural death. It is the evidence of P.W.1, the receptionist at the
lodge and P.W.4, who was working as a room boy in the said lodge, that at 6.30
p.m. on 22.3.94, a male and a female came to the reception room and that the
male wanted a room to be allotted after intimating the receptionist, P.W.1,
that they had to stay overnight as his wife is to attend an interview on the
next day and P.W.1 , thereafter, allotted room No.59 to the two persons, who
told him that they are husband and wife. Ex.P.2 is the entry in Ex.P.1, the
check-in register and according to P.W.1, the said entry was made by the
accused in his presence and that the accused has also put his signature. A
perusal of Ex.P.2 shows that the accused had given his name and address as
Joshy, C.A., Chalayil House, Trivandrum and that the purpose of visit is for
the interview. It is the evidence of P.W.1 that he demanded a sum of Rs.120/-
from the accused and that the said amount was paid, for which a receipt was
also issued. The carbon copy of the said receipt is Ex.P.4. According to
P.W.4, the room boy, the accused and the deceased were taken to room No.59 and
after supplying them tea, he left the room. He has further stated that he saw
the accused and the deceased leaving the room and returning at about 8.30
p.m., who after entering the room, locked it from inside. P.W.4 has further
stated that on the next day, he found the room locked from outside and was
under the impression that the occupants of the room must have left on their
business and therefore, did not give any importance to the said fact. On
24.3.94, when he came for his duty, he found the room locked from outside and
noticed a foul smell emanating from the room. Therefore, he went and informed
P.W.1. P.W.1, thereafter, informed the owner, who, on arriving at the lodge,
advised P.W.3, who was also present, to lay a complaint and later, a
complaint, Ex. P.5, was drafted by P.W.3 and the same was handed over to
P.W.16, the Sub-Inspector, on which, the crime came to be registered. P.W.18,
on taking up investigation in the crime, reached the lodge and found the room
locked from outside and therefore, he had to break open the lock to enter into
the room. On entering the room, he found a girl lying dead on the cot and
also noticed several features in the said room. He prepared an observation
mahazar, Ex.P.19. He also found a suicide note lying by the side of the dead
body and the same stands marked as M.O.19. The officer also found M.O.20, a
letter alleged to have been written by Josie. Thereafter, the body was sent
for postmortem. P.W.11 conducted post-mortem on the dead body of Shali and
issued Ex.P.16, the post-mortem certificate as well as Ex.P.18, the final
opinion opining that the post-mortem findings are not inconsistent with death
due to asphyxia as a result of hanging. In the said postmortem certificate,
he has stated that the injuries are ante-mortem in nature and when examined in
Court, he has admitted in chief examination itself that he cannot deny that
the deceased would have been made unconscious by smothering and thereafter,
her body would have been hanged. He has also stated that he had given an
opinion to the effect that Shali would have been hanged to death. He has also
admitted that the injuries, which he noticed on the dead body, could have been
on account of some one smothering her for causing asphyxia and unconsciousness
and that thereafter, the body would have been hanged from the ceiling. He
went on to admit that injuries 1, 2 and 4 could have been on account of
violent beating of the deceased. Though in crossexamination he has stated
that he is not able to give any definite opinion as to the cause of death
because he did not find any internal injuries, this Court, from the physical
features noticed by the investigating officer and also from the injuries
noticed by the doctor and noted in the post-mortem certificate, Ex.P.16, can
safely come to the conclusion that Shali died not a natural death but met her
end on account of homicidal violence and this conclusion of ours is on the
basis of the materials collected and placed before the Court. It is the
evidence of P.W.4, the room boy, that on 24.3.94, when he returned for duty at
the lodge, he found room No.59 locked from outside. He noticed foul smell
emanating from the room and therefore, informed P.W.1 and a complaint came to
be laid thereafter. P.W.18, on taking up investigation, reached the lodge and
found the room locked from outside. This evidence of P.W.18 fully
corroborates the evidence of P.W.4 that the door was locked from outside. The
officer had to break open the door to gain entry. On entering the room after
breaking open the door, he found the dead body of Shali on a cot. He also
noticed M.O.1 9, a suicide note, and a saree, which was found hanging from the
ceiling. If it is a case of suicide, then it is impossible for the dead body
to have walked out of the room to lock it from outside and then get back to
lie on the bed. It is, of course, true that the suicide note, M.O.19, was not
sent for hand writing expert and from this alone, the prosecution case cannot
be rejected. If the suicide note was written by the deceased, then there is
no explanation as to how the room was found locked from outside. The evidence
of P.W.4 that on 22.3.94, the room was found locked and that even on 24.3.94,
when he returned duty, the room was locked from outside indicate that after
the deceased entered the room at about 8.30 p.m. along with the accused on
22.3.94, she was not seen alive thereafter by any one and her dead body was
seen inside the room, which was locked from outside. It is also not possible
for this Court to hold that the deceased committed suicide by hanging herself
with the help of th e saree. If the deceased had committed suicide by hanging
herself with the saree, then there is no explanation as to how the dead body
came to be seen on the cot when the investigating officer entered the room.
The saree, which was seen hanging inside the room and the fact that the room
was locked from outside coupled with the suicide note seen at the place of
occurrence, therefore, indicate that the deceased Shali must have been hanged
after she was made unconscious due to smothering or otherwise, the room could
not have been found locked from outside and the suicide note, M.O.19, was left
at the scene of occurrence only to deflect the course of investigation and
make it appear, as if, it is a case of suicide. We, therefore, reject the
defence theory that the deceased committed suicide.
11. The next question that is to be decided by us is whether
the accused is responsible for the death of Shali and for this, the
prosecution relied upon the evidence of P.Ws.1 to 4, 6 and 9. As we stated
earlier, P.W.1 is the receptionist and according to him, at about 6.30 p.m.
on 22.3.94, the accused accompanied by the deceased came to his lodge and
asked for a room after telling him that they are husband and wife and that the
accused has also told him that his wife had to attend an interview on the next
day and thereafter, a room was allotted to them. It is the further evidence
of P.W.1 that the accused made an entry, Ex.P.2, in the check-in register,
Ex.P.1, by giving his name as Joshy, C.A. at Chalayil House, Trivandrum and
that he made those entries in his presence. P.W.2, who was present at the
lodge at that time, also corroborates the evidence of P.W.1 that the accused
along with the deceased entered the lodge and asked for a room. It is the
evidence of P.W.4, the room boy, that it was he, who took the accused and the
deceased to room No.59, where, after getting them tea, he went away. The
deceased was not seen alive by any one thereafter and her dead body was seen
by the investigating officer after the room was broken open. The prosecution
before the trial Court, to establish that the person, who checked in with the
deceased, is the accused, relied upon the evidence of P.W.1, who has stated
that on 27.3.94, a photograph was shown to him by the investigating officer
and that he identified the person in the photograph as the person, who checked
into the room with the deceased. The learned counsel appearing for the
appellant-accused strenuously contends that since the photograph of the
accused was shown to the witness, P.W.1, on 27.3.94, the subsequent
identification parade conducted by the Judicial Magistrate, P.W.10, has no
value and that the evidence of P.W.1 also cannot be safely accepted to hold
that the accused was in the company of the deceased when they entered the room
since the photograph that was shown to him was a photograph of an individual
and the witness had no chance of identifying a person from a group of persons
in a photograph. It is, of course, true that to P.W.1, the officer had shown
a photograph and the witness has identified the person in the photograph as
the person, who checked into the room along with the deceased. But this by
itself, in our view, will not affect the prosecution version. It is to be
remembered that the accused went to the lodge on 22.3.94 and within five days
thereafter, a photograph was shown to the witness and from the said
photograph, he informed the police officer that the person found in the
photograph is the person, who checked into the room along with the deceased.
Even if it is to be held that the subsequent identification parade may not
have much value in view of the admission of P.W.1 that a photograph was shown
to him earlier, the fact remains that on the fifth day, the investigating
officer was able to fix the identity of the accused and showed the photograph
to the witness and the witness was able to identify the person in the
photograph as the person, who checked into the room along with the deceased.
In this background, we have to consider the evidence of P.W.4, whose evidence
clinchingly establishes the complicity of the accused with the crime. He has
stated in his evidence that it was he, who took the deceased and the accused
and left them in the room and it was he, who purchased tea for them.
According to him, the room was found locked for about two days and on the
morning on 24.3.94, he noticed a foul smell emanating and therefore, informed
P.W.1. According to him, on 27.3.94 during the course of investigation, the
officer showed him a group photograph and in the group photograph, he pointed
the person, who is the accused in the case, as the one who checked into the
room along with the deceased. P.W.4 was not shown the photograph of the
accused alone, but what was shown to him was M.O.26, a group photograph,
wherein along with other persons, the accused is also found. This photograph,
M.O.26, was seized from the house of the deceased and the authenticity of
M.O.26 was not questioned by the defence before the trial Court. The defence
was satisfied by making a simple suggestion to P.W.4 that M.O.26 was not shown
to him on 27.3.94 and except for the said suggestion, the defence did not
elicit any answer to show that on 27.3.94, a group photograph, M.O.26, wherein
the accused is also found, was not shown to P.W.4. The above evidence of
P.W.4, therefore, clearly establishes that on 27.3.94, a group photograph was
shown to him and that he was able to identify the accused, who was found in
the group, as the person, who checked into the room along with the deceased.
It is, of course, true that P.W.18, in his evidence, stated that he had also
shown a passport size photograph to P.Ws.1, 4, 6 and others on 27.3.94 and
that they were questioned and from this, it cannot be said that the said
photograph was shown for the purpose of identification. The evidence of P.W.4
read in the background of the evidence of P.W.18 clearly indicates that for
the purpose of identification, M.O.26 was shown to P.W.4 and he identified the
accused from the group photograph and he was also shown the other photograph
of the accused when he was questioned and therefore, it cannot be said that
the identification of the accused from the photograph is doubtful. The fact
remains, as we stated earlier, that the officer was able to fix the identity
of the accused even on 27.3.94, which was confirmed not only by P.W.1, but
also by P.W.4.
12. It is to be remembered at this stage that when P.W.7 went
to the printing press, he did not find the accused. He did not also find him
in his house; but on the contrary, his enquiries revealed that the deceased
left along with the accused to Bangalore and therefore, he made arrangements
through his son to detain the accused and the deceased at Bangalore. He also
went to Bangalore accompanied by the father of the accused, but could not find
either the accused or the deceased and perforce, had to return to Tirussur on
24.3.94. On the evening of 24.3.94, he came to know that his daughter is
lying dead in a lodge and therefore, went to Coimbatore and identified the
body at the hospital. Under the above circumstances, it is for the accused to
explain as to where he was during the said relevant period. He did not offer
any explanation; on the contrary, he had come out with a false explanation by
examining D.W.1 to make it appear as if that the deceased Shali went along
with Josie to Coimbatore, Ooty and other places. This defence was probably
taken by the accused in view of the letter, M.O.20, which was found at the
scene of occurrence. A perusal of the letter, M.O.20, clearly indicates that
the said letter could not have been written by a male; but on the contrary, it
must have been written only by a girl friend of the deceased since in the said
letter, the said Josie has made enquiries with the deceased as to whether she
is still wearing churidhars or whether she has changed her dress to saree.
She has stated in the said letter that she has started wearing sarees and she
is no longer wearing churidhar. She has also made enquiries about the other
girl friends of their group. If the letter was written by a male, then it
escapes one’s comprehension as to why the said Josie should wear sarees and
why he should make enquiries about the dress of the deceased. The recitals
found in M.O.20, therefore, clearly show that the said letter was written not
by a male, but by a girl friend of the deceased and the accused, misdirecting
himself on the recitals found in M.O.20, examined D.W.1 to make it appear that
Josie is a male and that the deceased left in his company. It is, of course,
true that the investigating officer has deputed a police constable to make
enquiries about Josie and according to the officer, a report was also
submitted by the said constable, but the said report was not produced in
Court. This Court, from the above nonproduction of the report of the police
constable, cannot come to the conclusion that the deceased left in the company
of Josie in view of the discussions, which we have made above. If there had
been a person by name Josie and the deceased has left in his company, then
nothing prevented the accused from marking the voters list to establish his
theory that the deceased left in the company of Josie and in our view, the
said defence was probably prompted in view of Ex.P.2, the entries in Ex.P.1,
the Check-in register and Ex.P.20. On the contrary, the evidence shows that
the entries in Ex.P.2 and the evidence of D.W.1 that the deceased left along
with Josie is a false statement and the false statement is an additional link
in the chain of circumstances against the accused as held by the Supreme Court
in DEONANDAN MISHRA -vs- STATE OF BIHAR ( A.I.R. 1955 S.C. 801). In JOSEPH
VERSUS STATE OF KERALA [2000 SCC (Cri) 926], the Supreme Court has held that
the accused, instead of making at least an attempt to explain or clarify the
incriminating circumstances inculpating him and connecting him with the crime,
by his adamant attitude of total denial of everything, when they were brought
to his notice by the Court, only produces the missing link to connect him with
the crime and the blunt and outright denial of every one and all of the
incriminating circumstances pointed out connect the accused with the death of
the deceased.
13. In this background, we have to take into consideration
the evidence of P.W.6, the person from whom, according to the prosecution, the
accused and the deceased purchased nighties and lungi. P.W.6 was pointed by
the accused after his arrest. P.W.6 has, in his evidence, identified M.O.27,
the yellow polythene bag, and according to him, he used to give similar bags
to his customers. He has also identified Ex.P.9 as the counterfoil of the
bill issued by him indicating the sale of night clothes and the Court cannot
loose sight of the fact that M.O.27 was seized by P.W.18, after he entered the
sealed room. Though pointing out a person by the accused may not attract the
provisions of Section 27 of the Evidence Act, still it is admissible under
Section 8 of the Evidence Act as to the conduct of the accused. In Prakash
Chand vs. State (Delhi Admn.), (1979 M.L.J.(Cri) 419), the Supreme Court has
held as follows:-
” There is a clear distinction between the conduct of a person against whom an
offence is alleged, which is admissible under Section 8 of the Evidence Act,
if such conduct is influenced by any fact in issue or relevant fact and the
statement made to a Police Officer in the course of an investigation which is
hit by Section 162, Criminal Procedure Code. What is excluded by Section 162,
Criminal Procedure Code, is the statement made to a Police Officer in the
course of investigation and not the evidence relating to the conduct of an
accused person (not amounting to a statement) when confronted or questioned by
a Police Officer during the course of an investigation. For example, the
evidence of the circumstance, simpliciter, that an accused person led a Police
Officer and pointed out the place where stolen articles or weapons which might
have been used in the commission of the offence were found hidden, would be
admissible as conduct, under Section 8 of the Evidence Act, irrespective of
whether any statement by the accused contemporaneously with or antecedent to
such conduct falls within the purview of Section 27 of the Evidence Act (vide
Himachal Pradesh Administration v. Om Prakash [(1972) 1 S.C.J.691]).”
P.W.6 has also identified the accused in the Test Identification Parade. It
is, of course, true that the photograph was shown to him also on an earlier
occasion during the course of investigation. But, this, in our view, does not
affect the substratum of the prosecution version that the deceased was in the
company of the accused and was seen by P.W.6, who sold, certain clothes under
the bill, Ex.P.9, on 22.3.94. Similarly, P.W.9 was examined to say that a
rope was purchased by the accused on the night of 22.3.94 and though the
materials do not show that the rope was used to cause the death of the
deceased, the fact remains that the accused and the deceased were seen
together by P.W.9 on the night of 22.3.94 and under the above circumstances,
it is for the accused to explain as to what happened to the deceased. He has
no explanation; on the contrary, the dead body of Shali was found inside the
room, which was found locked from outside. We, at this stage, state that we
have not placed much reliance upon the recovery of M.O.41, the key, which,
according to the prosecution, was seized in view of the evidence of P.W.4 that
the keys maintained at the lodge will have an emblem of the lodge and also a
token and M.O.41 does not contain any of these. In any event, the place from
where M.O.41 was recovered is a place frequented by everyone as it was on the
way to the second floor of the lodge and near the motor pump switch room. But
that by itself will not be a reason for us to hold that the accused did not
commit the offence as alleged by the prosecution in view of the other
overwhelming evidence, which we discussed above.
14. On the materials, we find that the learned trial Judge
was justified in convicting and sentencing the appellant-accused and we find
no reason to interfere with the same. The appeal is, therefore, dismissed.
Index: Yes
Website: Yes
sra
To
1.The Principal Sessions Judge, Coimbatore
2.The Judicial Magistrate No.5, Coimbatore.
3.-do- Thro’ The Chief Judicial Magistrate, Coimbatore.
4.The Inspector of Police, Kattoor Police Station, Coimbatore.
5.The District Collector, Coimbatore District.
6.The Director of General of Police, Madras-4.
7.The Superintendent, Central Prison, Coimbatore.
8.The Public Prosecutor, High Court, Madras.