R. Mala, J.@mdashThis appeal arises out of the verdict of conviction in S.C. No. 139 of 2007 on the file of learned District Sessions Judge cum Mahila Court, Tiruchirappalli convicting the Appellant/Accused u/s 364, 302 and 201 IPC and sentencing him to undergo 10 years rigorous imprisonment, life imprisonment and 7 years rigorous imprisonment and also imposing fine.
2. Briefly stated case of prosecution is as follows:
P.W.1-Singaram and P.W.2-Lalitha are the parents of deceased Brinda. Deceased Brinda was working in Meter Box company at Erakudi. She usually comes to home at 5.00 P.M everyday. On 12.07.2004, deceased Brinda did not return home from her work. P.W.1 was searching her and on 22.09.2004, he came to know that deceased Brinda was in the house of sister of Accused Kannan. P.W.1 has gone there and enquired the accused. Accused told that deceased Brinda was left from him on the day of ''Adi perukku''. P.W.1 has not believed the words of accused, on 23.09.200, he went to Uppiliyapuram Police Station and gave a complaint Ex.P1.
3. On 23.09.2004, P.W.18-Jaffur Hussain, Sub-Inspector of Police received Ex.P1 Complaint and on the basis of Ex.P1-Complaint, PW18 registered the case in Cr. No. 426 of 2004 u/s 364 IPC. Ex.P20 is the FIR. On 23.09.2004, P.W.19-K. Muthusamy, Inspector of Police had taken up the investigation and examined the witnesses.
4. On 28.09.2004 at 7.30 A.M., the accused has voluntarily surrendered before P.W.3-Natarajan, Village Administrative Officer stating that on 01.08.2004, he murdered one Brinda, who refused to his sexual intercourse and buried her body on Kauveri''s bank. Then P.W.3 took the accused to Uppiliyapuram Police Station at 9.30 A.M. On being interrogated by P.W.19-Inspector of Police, the accused voluntarily gave confession statement in presence of P.W.3-Natarajan, VAO and one Palanivel. The admissible portion of confession statement is Ex.P.4. Then P.W.19 altered the section from Section 364 IPC to one u/s 302 IPC and sent a requisition to Tahsildar for exhume the body and to conduct postmortem. The alteration report is Ex.24. On the same day at 1.00 P.M., P.W.18 inspected the scene of occurrence and prepared Ex.Ps.2 and 3- Observation mahazars and Ex.P.21 and 22-Rough sketches.
5. On 28.09.2004 at 2.30 P.M., P.W.11-V. Arumugam, Tahsildar received the requisition Ex.P.30 from P.W.18 and he went to Kauveri''s bank along with police officials, V.A.O, parents of the deceased Brinda and accused Kannan and the accused Kannan identified the place, where he buried the body of deceased Brinda. Then, the body was exhumed and the same was identified by P.Ws.1 and 2, who are none other than the parents of deceased Brinda and they admitted that she is their daughter Brinda by way of identifying the clothes in the body of Brinda. Then P.W.11-R.D.O conducted inquest in presence of the witness and Ex.P5 is inquest report and he recorded the statement of P.Ws.1 and 2, parents of deceased Brinda i.e. Ex.P6. Then he sent Ex.P31- requisition for autopsy to K.A.P. Viswanathan Government Hospital, Trichirappalli. After inquest MO1-skirt, MO2-inskirt, MO3-Jatti, MO4-half saree and MO5-blouse were seized from the body of deceased Brinda. Ex.P7 is the final report of R.D.O.
6. On receipt of Ex.P31, requisition for autopsy from P.W.11-R.D.O., P.W.14-Dr. Karthikeyan reached the scene of occurrence along with his team. At 2.30 P.M., he conducted postmortem and noted the following aspects:
Signs of decomposition:
Decomposed, Disarticulation of axial skeleton and the upper limb joints. The pelvis and the lower limbs are intact.
Wounds:
Nil external wound could be made out, No bony would present.
Other findings:
The heart, uterus and a portion of intestine alone are present. All other thoraco-abdominal organs and the brain matter are missing.
Heart-decomposed, c/s - empty. Uterus-decomposed, c/s empty.
PW14 opined that in view of negative autopsy findings and negative chemical analysis no definite opinion could be given regarding the cause of death and issued Ex.P.8-Postmortem Certificate and Ex.P9-opinion.
7. On 28.09.2004 at about 4.00 P.M., P.W19-K. Muthusamy proceeded with further investigation. In pursuance of Ex.P4, admissible portion of the confessions statement, M.O6-Spade was seized in the presence of P.W.3-V.A.O and Palanivel under Ex.P23, Mahazar and remanded the accused to judicial custody. He sent the seized material objects to Court through Form 95 under Exs.P25 and 27 and examined the witnesses. He got photos of deceased Brinda and sent the same for superimposition analysis under Ex.P26 Form 95. Since the place of occurrence comes under the jurisdiction of Musiri Police Station, P.W.19 handed over the file to P.W.20-Inspector of Police on 07.10.2004.
8. On 08.10.2004, P.W.20 received the file from Uppiliapuram Police Station and renumbered the case in Cr. No. 828 of 2004 of Musiri P.S. and taken up the investigation. Ex.P.28 is F.I.R. Express report is Ex.P29 He examined the witnesses and sent requisition for recording the statement of accused u/s 164 Cr.P.C. He also sent objects to D.N.A. Test. Since he was transferred to other Station, P.W.21-Ganesan, Inspector of Police taken the case for investigation. He received the forensic reports Exs.P15 to 18 and after examination of witnesses and on due investigation, PW21 filed final report u/s 364, 302 r/w 201 I.P.C against the accused.
9. To substantiate the Charges against the accused in the trial court, prosecution examined PWs.1 to 21. Exs.P1 to 31 and MOs.1 and 6 were marked. Accused was questioned u/s 313 Cr.P.C. about the incriminating evidence and circumstance. Accused denied all of them and stated that a false case is foisted against him.
10. The learned Sessions Judge cum Mahila Court, after considering the evidence of P.W.15, P.W.17 and confession statement given by accused, has come to the conclusion that on the basis of the confession, the accused identified the place, where the body of deceased Brinda has been buried, P.W.11-R.D.O. has ordered exhumation and spot autopsy has been done and P.Ws.1 and 2 have identified the belongings of deceased Brinda and body was also been identified by P.W.15 and P.W.17 by way of superimposition and D.N.A. Test and found guilty of the accused under Sections 364, 302 and 201 IPC and convicted him as aforesaid.
11. Challenging the verdict of sentence and conviction passed by the learned Sessions Judge/Mahila Court, the learned Counsel for the appellant would contend that the case is based on circumstantial evidence and motive has not been proved by the prosecution and on the basis of Section 27 of Evidence Act, recovery alone, the accused has been convicted and the death of the deceased Brinda has not been proved by the prosecution. He would also contend that no final opinion was given by P.W.14-Doctor, who conducted spot autopsy and most of the witnesses viz., P.Ws.8,9 and 13 were turned hostile and the trial Court has not considered all the aspects in a proper manner and hence the benefit of doubt is to be given in favour of the appellant and prayed for acquittal of the accused.
12. The learned Public Prosecutor appearing for the State would contend that on the basis of confession given by the appellant, he identified the place, where the body of deceased Brinda has been buried and after obtaining orders from P.W.11-R.D.O, spot autopsy has been conducted and belongings of the body have been identified by P.Ws.1 and 2, who are none other than the parents of deceased and motive has also been proved and the death of deceased was unnatural. He would further urge that P.Ws.15 and 17 have given a finding by way of superimposition and D.N.A. Test that the body exhumed in the place, identified by the appellant/accused is belonging to the daughter of P.Ws.1 and 2 and the prosecution had linked all the circumstances and the trial Judge has also considered all the aspects in a proper prospective and there is no infirmity and irregularity in the conviction and sentence passed and the same does not warrant any interference and prayed for dismissal of the appeal.
13. P.W.1 and P.W.2 are the parents of deceased Brinda. They are hailing from Venkattammal Chathiram village. They are having two daughters and one son. Deceased Brinda is elder daughter. At the time of incident, she was working in a Meter Box company at Erakudi. Usually she goes to work at 8.00 A.M., and return home at 5.00 P.M. But, on 12.07.2004, she did not return home from her work. On due search, on 22.09.2004, P.W.1 came to know that the deceased has eloped with accused and stayed in the house of sister of accused at Paramathy, Karur. P.W.1 went there along with P.W.12-Ponnusamy and made an enquiry and the accused stated that on the day of ''Adi Peruku'', deceased Brinda left him. P.W.6 also deposed that on 15.08.2004, he witnessed the deceased at Kulithalai bus stand along with two male members. Then only, P.W.1 has given a complaint, Ex.P1 and the accused had voluntarily surrendered before P.W.3-Natarajan, V.A.O and on the basis of his extra judicial confession, P.W.3 produced the appellant/accused before P.W.19-Muthusamy, on 28.09.2004 at 9.30 A.M and on being interrogation, he gave a confession, on the basis of which he identified the place, where the body of deceased Brinda has been buried. Then P.W.19-Muthusamy gave letter Ex.P.30-requisition for inquest to P.W.11-R.D.O and P.W.11 ordered to exhume the body and conducted inquest. Thereafter, P.W.11-R.D.O gave a letter Ex.P.31 to P.W.14-Dr. Karthikeyan for conducting spot autopsy and the same has been done. So, it is clear that the case is based on circumstantial evidence.
14. It is well settled principle of law, in the cases based on circumstantial evidence, each and every hypothesis of genesis to be completed the chain. In this case, following circumstances are relied upon by the prosecution.
1. The accused was having love affairs with deceased Brinda.
2. The accused took the deceased to Kauveri bank and Deceased Brinda was last seen alive with the accused (evidence of P.Ws.10 and 5)
3. The death of Brinda is an unnatural death.
4. The accused identified the place, where the body of Brinda was buried.
Love affairs between the accused and deceased:
15. Evidence of P.W.4-Sundarraj, who is the third party, has deposed before the Court that the deceased and accused loved each other and he has witnessed the same and he advised the victim Brinda. But, there is no cross examination on that point. P.W.12-Ponnusamy also deposed that the accused had taken the deceased and both were stayed at his sister''s house for three days. P.W.10-Baskaran has deposed that on 12.07.2004 at 2.00 P.M., the accused and deceased boarded in Trichy bus at Thuraiyur bus stop. P.W.5-Ravi has deposed that on 01.08.2004, he witnessed the appellant with deceased, who has alighted from Karur bus near Kulithalai toll gate bus stop. So, the cumulative effect of evidence of P.Ws.4,5, 10 and 12 has clearly proved that the deceased and accused were loved each other.
Whether the accused identified the place, where the body of deceased has been buried:
16. P.W.1 came to know that his daughter/deceased Brinda has eloped with accused and stayed in the house of sister of accused at Paramathy, Karur. P.W.1 went there along with P.W.12-Ponnusamy and made an enquiry and the accused stated that on the day of ''Adi Peruku'', deceased Brinda left him. Since the accused had given inconsistent and contradictory statement, P.W.1 has given a complaint, Ex.P1, that has been corroborated by P.W.12-Ponnusamy. On the basis of confession statement given by the accused, he identified the place, where the body of deceased Brinda has been buried. P.W.20 Inspector of Police gave a letter Exs.P30 and 31 to P.W.11-R.D.O. to exhume the body of deceased Brinda and P.W.11 received the same and gave a requisition to P.W.14-Dr. Karthikeyen to conduct spot autopsy. Then they have gone to the place, where the body was buried by the accused and exhume the decomposed body and spot autopsy has been done. P.w.14 has skull, lower mandible, left femur and internal organs and the same were sent for chemical examination. In pursuance of the same, skull has been superimposed by P.W.15-Assistant Director of Forensic Lab, Chennai and he followed the superimposition procedure and took photographs Exs.P.11-14 and given a report Ex.P10 stating that the deceased is Brinda.
17. Moreover, on receipt of Ex.P.19, requisition P.W.17-Vanaja conducted DNA test with the left femur collected in the place, where the accused identified, with the blood sample taken from P.Ws.1 and 2, parent of deceased Brinda and gave a report Ex.P18, and deposed before the Court that the bone was belonging to the daughter(deceased Brinda) of P.Ws.1 and 2. There was no cross examination on the point. Likewise P.W.16-Jeya conducted chemical examination with the material objects collected in the place, where the body has been exhumed and gave Ex.P15 report, wherein, it was stated that M.O.3 alone contains bloodstain, but grouping are inconclusive. Hence, we are of the opinion that the prosecution has proved that the decomposed body, exhumed from the place, where the appellant/accused identified is that of deceased Brinda.
Death of deceased Brinda is unnatural:
18. P.W.11-R.D.O has ordered for exhumation of body and gave a requisition to P.W.14-Dr. Karthikeyen for conducting spot autopsy. P.W.14 has also conducted spot autopsy and issued Ex.P8 postmortem certificate and he collected viscera and other particles for chemical examination and after receiving chemical report, he issued Ex.P9-final opinion stating that in view of negative autopsy findings and negative chemical analysis no definite opinion could be given regarding the cause of death and no poison has been detected in viscera. Because of the body was at the stage of decomposed, disarticulation of axial skeleton and the upper limb joints and the pelvis and the lower limbs are intact, no external wound could be made out and no body wound present and the heart uterus and a portion of intestine alone are present and all other thoraco-abdominal organs and the brain matter are missing. So, in the above such circumstances, we are of the considered view that the death of deceased Brinda is an unnatural one.
Last seen alive theory:
19. The learned Counsel for the appellant would contend that P.W.5-Sudhakar has witnessed the deceased Brinda with two male members on 15.08.2004 at Kulithalai toll gate bus stop. So, it is unsafe to convict the appellant/accused alleging that he had committed murder of deceased Brinda on 01.08.2004. But, the above argument does not merit acceptance. Because, in this case, P.W.10-Baskar, in his evidence stated that on 12.07.2004 at 2.-00 P.M., he witnessed the deceased along with accused boarded in Trichy bus and when P.W.1 made an enquiry on him, he intimated the fact that they boarded in Trichy bus. There is no evidence for discarding the evidence of P.W.10.
20. P.W.5 Ravi was also examined before the trial Court. While considering his chief and cross examination, nothing against him has been culled out. So, his evidence is trustworthy and reliable. In his evidence he deposed that on 01.08.2004 at 5.30 P.M., when he was at Kulithalai toll gate bus stop and taking tea along with his friend, he witnessed the deceased Brinda and accused were alighted from Karur bus and they were proceeding towards Musiri through Musiri-Kulithalai Kauveri Bridge. P.W.5 is the resident of Erakudi, where the accused is residing. In his cross examination also, he has stated that after two days from 01.08.2004, he intimated to P.W.1 that he witnessed her daughter and accused near Kauveri Bridge. That factum has also been corroborated by P.W.7 Karthick. In his evidence, he deposed that on 01.08.2004, when he was returning near Kulithalai Kauveri bridge after completing his work from Manapparai, he witnessed the accused with wet clothes and after witnessing paper only, he intimated the same to P.W.1. Against his evidence, one line cross examination has been done that the above said factum has not been disclosed to police. There is no reason assigned to give evidence against the appellant/accused. Hence, evidence of P.Ws.5,7 and 10 has clearly proved that the accused has lastly seen with the deceased on the date on 12.07.2004, when deceased Brinda was missing and on the date of 01.08.2004, alleging that the appellant/accused murdered her. In such circumstances, it is the duty of the appellant/accused to prove what happened to deceased Brinda, but no evidence adduced on the side of appellant/accused. In the absence of any such evidence on the side of appellant, we are of the considered view that the prosecution has proved the last seen theory.
Confession and recovery u/s 27 of Indian Evidence Act.
21. It is pertinent to note that the prosecution has proved that on the basis of the confession given by the accused/appellant, he identified the place, where he buried the body of deceased Brinda and the body of deceased has been exhumed and the skull and left femur of the deceased were recovered and the same was matched with the blood of P.Ws.1 and 2, who are the biological parent of deceased Brinda, through D.N.A. test and chemical analysis. Hence, the prosecution has proved the link that the decomposed body, exhumed from the place, where deceased Brinda was buried by the appellant/accused, is Brinda.
22. It is true even though P.W.3-V.A.O Natarajan deposed in his evidence that on 28.09.2004 at 7.30 A.M., the appellant/accused has voluntarily appeared before him and gave an extra judicial confession and he produced him before the Inspector of Police and at that time, the appellant/accused had given confession and on the basis of confession statement, M.O6-Spade has been recovered and the admissible portion is marked as Ex.P4. But, in this case no extra judicial confession has been produced. On the basis of confession, recovery has been made u/s 27 of Indian Evidence Act. Hence, other averments in the confession statement need not be relevant.
MOTIVE
23. At this juncture, the learned Counsel for the appellant would contend that in the cases based on the circumstantial evidence, motive plays a vital role, but, here motive has not been proved by the prosecution and hence, benefit of doubt is to be given to the appellant/accused. But, the above argument does not merit acceptance. Because, this is a case based on circumstantial evidence that too screening of evidence. Of course, proof of motive satisfies the judicial mind as to the likelihood of commission of the offence. But motive for doing a criminal act is generally a difficult area for prosecution. Motive is generally locked up in the minds of the offender merely because the prosecution was not able to adduce evidence or suggest motive would not weaken the case of prosecution.
24. Here, in this case, there is evidence before the trial Court that the deceased was lastly seen along with the appellant/accused on 12.07.2004 at 2.00 P.M., at Thuraiyur bus stop, where they boarded in Trichy bus, which has been clearly proved by prosecution and also on 01.08.2004 at 5.30 P.M., P.W.5, Ravi has witnessed both the appellant/accused and deceased Brinda, where they were alighted from Karur bus at Kulithalai toll gate bus stop and on the same day P.W.7-Karthick had witnessed the appellant/accused near Kulithalai Kauveri Bridge with wet clothes. Then only P.W.1 has received the intimation that the deceased stayed with the accused in his sister''s house and he had gone there and questioned the accused, for which the appellant stated that the deceased left from him on the day of ''Adi Perukku''.
25. At this juncture, the learned Additional Public Prosecutor had relied upon the decision of this Court reported in (2008) 2 MLJ (Crl) 801 (P. Thangavelu v. State rep. by the Inspector of Police, P.K. Pet Police Station, Thiruthani Taluk, Thiruvallur District) and culled the following portion:
Thus, we find that the prosecution has relied on the circumstances viz., the deceased was last seen alive in the company of the accused; the accused voluntarily come forward to inform P.W.1 of the offence committed by him; it was the accused who showed the place where the body was concealed; the evidence of P.Ws.7 to 9 and the Superimposition Test established that the skull found was that of the deceased; and the same serve as formidable incriminating circumstances against the appellant/accused. We are of the considered view that these established circumstances lead to the one and only irresistible conclusion that it was only the accused, who caused the death of the deceased and subsequently buried the body in order to screen the offence committed by him.
In the above said circumstances, even though motive has not been proved by the prosecution, the prosecution has completed the chain that on the basis of confession statement given by the accused, the accused identified the place where he buried the body of Brinda and the same was exhumed and through scientific evidence, it was proved that the body which was exhumed is the daughter of P.Ws.1 and 2 by way of Superimposition and D.N.A. Test and the love affairs between the appellant/accused and deceased has also been proved by way of examining P.W.4-Sundarraj.
26. Cases based upon circumstantial evidence, in order to sustain conviction, proved circumstances 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.
27. Hence, we are of the considered view that the prosecution has proved the guilt of hypothesis of genesis without break the line in chain and the learned Sessions Judge/Mahila Court has considered all the aspects in a proper perspective and come to the conclusion that the accused/appellant is guilty under Sections 364, 302 and 201 IPC and there is no infirmity or irregularity in the order passed by the trial Judge and the same is liable to be confirmed.
28. In the result, the Criminal Appeal is dismissed. The conviction and sentence dated 21.04.2007 made in S.C. No. 139 of 2007 on the file of learned District Sessions Judge cum Mahila Court, Tiruchirappalli is hereby confirmed.
