P.N. Prakash, J.@mdashKannan, the sole accused who was convicted and sentenced on 02.02.2012 in S.C. No. 399/2008, by the Sessions Court [Mahalir Neethimandram] Chennai, is the appellant before us. He was charged, convicted and sentenced as follows:
It is the case of the prosecution that the appellant is the younger brother of Ramkumar [P.W. 6]. Ramkumar [P.W. 6] married the deceased Jayashree on 17.06.2007. After marriage, Ramkumar [P.W. 6] and Jayashree became the tenant of Viola [P.W. 1] at No. 32, Teachers Colony 3rd street, Kodungayur, Chennai. The couple occupied the first floor of the house and Viola [P.W. 1] lived with her family in the ground floor. The deceased Jayashree was on the family way. The appellant who was not married, also joined his brother Ramkumar [P.W. 6] and stayed with him in his house. It is alleged by the prosecution that the appellant set lecherous eye on his sister-in-law Jayashree. On 18.02.2008, Viola [P.W. 1] went to the first floor and found Jayashree lying on the floor with a knife bludgeoned into her abdomen. She also saw the appellant there. At this juncture, we do not want to discuss as to what transpired between them there, for we intend discussing about it in the body of the judgment. Suffice to continue with the narration of the prosecution version of the case.
[a]Viola [P.W. 1] went to the Police Station and lodged a written complaint [Ex. P1] at 7.45 a.m. on 18.02.2008, which was received by Ramaiah [P.W. 16] the Sub Inspector of Police, who registered a case in Kodungayur Police Station Cr. No. 111/2008 under Sections 316, 376 r/w 511, 380 and 302 IPC and prepared a printed FIR [Ex. P18]. The complaint in original and a copy of the printed FIR were sent to the jurisdictional Magistrate, who received the same at 12.50 p.m. on 18.02.2008.
[b]Investigation in this case was taken over by Stephen [P.W. 17] the Inspector of Police, who went to the place of occurrence around 8.30 a.m. and prepared the Observation Mahazar [Ex. P2] and Rough Sketch [Ex. P19] in the presence of witnesses Anthony Raj [P.W. 8] and Ansar Basha [not examined]. He called Vijayendran [P.W. 12], the police photographer who came to the place of occurrence and took photographs which were marked as M.O.6. He requisitioned the services of Mrs. Lakshmi Balasubramanian [P.W. 13], the Scientific Expert, from the Tamil Nadu Forensic Sciences Department, for collecting clue materials from the place of occurrence. From the place of occurrence, he collected mosaic chips with and without blood stains, a few strands of hair that was found entangled in the right hand of the deceased and a few strands of hair found strewn on the floor, under the cover of Mahazar [Ex. P3]. In the presence of Panchayatdaras he conducted inquest over the body of the deceased between 9.30 and 11.00 a.m. and the Inquest Report was marked as Ex. P20. Thereafter, the body was despatched through Devaraj [P.W. 9] Head Constable, to Government Stanley Hospital, where Dr. Santhakumar [P.W. 10] performed the autopsy over the body. Dr. Santhakumar [P.W. 10] in his evidence before the Court as well in the Post-mortem certificate [Ex. P4] has stated as follows:
"Appearances found at the Post-Mortem : Moderately nourished female body. Clothes:
1)Red colour Kameez
2)Red, brown and green colour striped Salwar with floral designs with 5 cm oblique tear on the middle part of the front side at the region of the abdomen, with surrounding patchy areas of blood stains.
3) Black colour bracier.
4) Blue colour panties
Injuries:
1) Reddish brown irregular abrasions:
a) 0.6x0.4 cm on the front of middle third of right leg; b) 1.5x0.6 cm on the inner aspect of back of lower part of right elbow; c) 1x0.5 cm on the back of outer aspect of right elbow; d) 1x0.6 cm on the outer aspect of back of left elbow; e) 1x0.3 cm on the left lateral aspect of the neck, along the plane of the left ear lobe and 7 cm below the lower end of the left ear lobe; f) 0.5x0.3 cm on the left lateral aspect of the neck, along the plane of the left ear lobe and 4.5 cm below the lower end of the left ear lobe; g) 1x0.1 cm oblique scratch abrasion on the right lateral aspect of the chest, along the plane of the right ear lobe and 6 cm below the right ear lobe.
2) Red bruising 3.5 x 2 x 0.2-0.1 cm on the inner aspect of middle part of right breast, abutting the areola of the right breast.
3) Red bruising 7x3-1x 0.6-0.1 cm on the upper part of centre of the chest on the Manubrium sterni region.
4) Oblique stab wound 2.5x0.5-0.1 cm x cavity deep on the left side of the central part of the abdomen; the lower acute inner end was 1 cm left lateral to the midline of the abdomen, 1 cm below the umbilicus; the upper outer end was obtuse; On dissection: the wound had entered into the abdominal cavity through the anterior abdominal wall; 1.5 x 0.2 x 0.1 cm incised wound on the upper pat of the fundus of the enlarged uterus; 2.5 x 0.3 x 0.3 incised wound on the antemesentric border of the underlying Illegal part of the small intestine; 2x0.3 cm oblique tear on the intestinal mesentery .
5) Horizontal stab wound 4.8 x 0.5 cm x cavity deep with a single edged knife was present in situ on the centre of the abdomen, across the midline; a portion of the small intestinal coil along with adherent soft tissues were protruding through the stab wound; the upper irregular obtuse end was 3 cm left lateral to the midline of the abdomen; the lower acute end was 15 cm right lateral to the midline of the abdomen along the plane of the upper margin of the umbilicus; the upper margin of the stab wound was irregular with a skin tag 0.5x0.3 cm on the right side of the upper margin of the stab wound and with a skin tag 0.3x0.2 cm on the left side of the upper margin of the stab wound; the lower margin of the stab wound was abutting the upper margin of the umbilicus; On dissection: the wound had entered into the abdominal cavity through the anterior abdominal wall; 5 x 1.5 x 0.1 cm incised wound on the surface of the upper part of the funds of the enlarged uterus; 3 x 0.5 x 0.3 cm incised wound on the antemesentric border of the underlying Illegal part of the small intestine; 3x0.3 cm oblique tear on the intestinal mesentery ; abdominal cavity contained 680 ml of fluid and clotted blood.
Heart: Normal in size; C/S: All chambers empty; Valves: Normal; Coronaries: Patent;
Great Vessels: Normal
Lungs: Normal in size; C/S: Pale. Larynx & Trachea: Empty, normal.
Stomach: Contained 60 ml of yellowish brown thick partly digested food material; No definite smell;
Mucosa: Pale.
Liver, Spleen and Kidneys: Normal in size;
C/S: Pale
Intestine: Brown chyme present. Bladder:
Empty.
Uterus: Enlarged, 23 x 19 x 9 cm in size : C/S. Uterine cavity contained 36 cm dead male foetus
(7 months), placenta was attached on the posterior wall of the uterus; Ovaries:
Normal.
Brain: Normal in size; C/S: Pale. Pelvis & Spinal Column: Intact.
Opinion as to cause of death:
The deceased would appear to have died of shock and haemorrhage due to stab injuries to the abdomen."
[c]The Investigating Officer continued with the investigation by examining Viola [P.W. 1], Naveen [P.W. 2], Pitchumani [P.W. 5], Ramkumar [P.W. 6], Paramasivam [P.W. 7], Anthonyraj [P.W. 8], Ansar Basha [not examined] and other witnesses. On the same day at 5.00 p.m., he arrested the appellant near Door No. 39/40 Sembudas Street, PVC Pipe Company in Paris. He recorded the confession statement of the appellant in the presence of witnesses Babu and Mohan [P.W. 11]. The admissible portion of the confession statement was marked as Ex. P21. From his pant pocket, the appellant handed over to the police a gold chain weighing about 15 gms and other ornaments which were marked as M.O. 3 series. This was recovered in the presence of witnesses Babu and Mohan [P.W. 11] under the cover of Mahazar [Ex. P12] at 6.15 p.m. on 18.02.2008 at the very place of arrest. Thereafter, on the showing of the appellant, the police recovered light yellow colour shorts with blood stains and a blue colour underwear with semen stains [both were marked as M.O. 5] from a bush in a cemetery, in the presence of witnesses Babu and Mohan [P.W. 11] under the cover of Mahazar [Ex. P11] at 7.00 p.m. on 18.02.2008. The appellant was produced before the jurisdictional Magistrate for being sent to judicial custody.
[d]After the post-mortem, the body was handed over to the relatives of the deceased and the apparel, knife and ornaments on the body were collected by Devaraj [P.W. 9], Head Constable, from the post-mortem doctor and they were handed over to the Investigating Officer. The apparel, the knife and ornaments that came into the possession of the Investigating Officer were black colour brazier [M.O. 7], dark blue colour panties [M.O. 8], red colour lower pant [M.O. 9], white and yellow flowered top [M.O. 10] Dupatta [M.O. 11], ear studs [M.O. 12] and silver metti [M.O. 13] that is normally worn by married woman in their toe. The material objects were sent to the Court on 25.02.2008 with a requisition by the Investigating Officer to the Court, to send the same to the Tamil Nadu Forensic Sciences Laboratory for chemical analysis. On the orders of the Magistrate, the appellant was produced before Dr. Santhakumar [P.W. 10] on 22.02.2008, in order to test if he was potent and also to collect his blood, saliva, semen, pubic hair and scalp hair. Accordingly, Dr. Santhakumar [P.W. 10] examined the appellant and in his evidence and Certificate [Ex. P9], he has stated as follows:
"Moderately nourished male with normal genitalia and well developed secondary sexual characters; pubic hair - 5 cm, not matted; prepuce not circumcised; smegma absent on the glans penis; penis length 6 cm when flacid on erection the penis was 13 cm long; cremasteric reflex was normal; there were no injuries on the genitalia or any other parts of the body except the 1x0.5 cm healed abrasion with dark brown scab loosely adherent on the inner aspect of the right ankle.
Blood, Saliva, Semen, pubic hair and scalp hair were collected and sent for forensic analysis.
Opinion:
There is nothing to suggest that the individual is not capable of performing sexual intercourse."
The items were also sent to the Forensic Science Laboratory for the purpose of chemical analysis and comparison.
[e] Mrs. Vimali Thyagarajan [P.W. 15] the Serologist in Tamil Nadu Forensic Science Laboratory, examined the Mosaic tile piece [M.O. 1], knife [M.O. 14], Salwar [M.O. 10] Kameez [M.O. 9] and found that it contained blood group ''B''. She also found the presence of human blood ''B'' in the shorts [M.O. 5]. Her report was marked as Ex. P15. The clothes of the deceased and the accused were examined by Vijaya [P.W. 14], Assistant Chemical Examiner to the Government, who in her evidence and in the report dated 31.03.2008 [Ex. P14] would state that no semen was detected in any of them. Vijaya [P.W. 14] also subjected the hair that was recovered from the place of occurrence and from the hand of the deceased with the strands of hair that was collected by Dr. Santhakumar [P.W. 10] from his private parts and scalp and by her report dated 31.03.2008 [Ex. P13] she has given the following opinion:
"REPORT : Did not detect semen on item 1
The hair pieces in item 2 above were compared with the hair pieces in items 3 and 4 of reference 2 cited above and they were found to be similar to one another.
NOTE : The above hair pieces were used up during examination."
[f] The Investigating Officer examined the experts, the post-mortem doctor and other experts and collected the various reports from them. He completed the investigation and filed a final report against the appellant alleging offence under Sections 376 r/w 511, 302, 316 and 392 r/w 397 IPC before the 10th Metropolitan Magistrate, Chennai, who took the same on file as PRC No. 98/2008.
2. When the accused appeared, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Sessions and later it was made over to the Sessions Court [Mahila Court], where the following charges were framed against the appellant.
"[1]U/s 376 r/w 511 IPC for attempting to rape the deceased.
[2]For committing the murder of Jayashree by stabbing her with a knife punishable u/s. 302 IPC.
[3]For causing the death of the foetus in her womb punishable u/s. 316 IPC
[4]For robbing her 9 sovereign jewellery punishable u/s. 392 r/w 397 IPC."
3. When the appellant was questioned, he denied the charges and the prosecution examined 17 witnesses, marked 23 Exhibits and 13 Material Objects. After hearing both sides and after considering the evidence adduced by the prosecution, the trial Court convicted and sentenced the appellant as stated above and hence, this appeal.
4. We heard Mr. A. Ramesh, the learned Senior Counsel on behalf of the counsel on record for the appellant and Mr. V.M.R. Rajendran, the learned Additional Public Prosecutor for the State.
5. During the course of hearing we observed that, the knife which was found embedded in the abdomen of the deceased was not marked in the trial Court. We also found that the prosecution had not adduced evidence with regard to examining of the accused by Dr. Santhakumar [P.W. 10] on 22.02.2008. The Examination Report [Ex. P9] was furnished to the appellant under Section 207 Cr.P.C. and it was marked in the trial Court but strangely, the trial Court Public Prosecutor had failed to elicit oral evidence of Dr. Santhakumar [P.W. 10] on this aspect. We called for the material objects from the trial Court and they were sent in a sealed box to this Court. On opening the box in the open Court, we found the knife in the box, from which it was obvious that, the knife has been all along been before the Committal Court as well before the Sessions Court. Strangely, the trial Court Public Prosecutor appears to have failed to mark the knife either through Viola [P.W. 1], Naveen [P.W. 2] or the post mortem doctor, who removed the knife from the body and handed over the same to the police along with the clothes of the deceased. Therefore, by order dated 10.02.2014, we invoked Section 391 Cr.P.C. and summoned Dr. Santhakumar [P.W. 10] and Mr. Stephen [P.W. 17] the Inspector of Police, for the purpose of taking additional evidence before us.
6. Dr. Santhakumar [P.W. 10] was examined in the open Court in the presence of the appellant and his counsel on 07.03.2014 and he was cross examined on the same day. From the post-mortem records, Dr. Santhakumar [P.W. 10] was able to depose that he had handed over the apparel and knife to S. Devaraj, Head Constable 1061 [P.W. 9,] after the post-mortem. But he very frankly told the Court that he was not able to recollect whether the weapon shown to him was the one he had found in the abdomen of the deceased. He also gave evidence about the taking of blood, saliva, semen, pubic hair and scalp hair from the accused and sending the same for chemical analysis. Mr. Stephen [P.W. 17], the Investigating Officer was examined in the open Court on 25.07.2014 in the presence of the appellant and his counsel, and in his evidence he identified the knife as the one that was found embedded in the abdomen of the deceased when he took over the investigation, which subsequently was handed over to him after post-mortem by Devaraj, Head Constable [P.W. 9]. The knife was marked as M.O. 14. He was subjected to lengthy cross examination by the learned Senior Counsel for the appellant and this Court also put several questions to him, about which we will discuss in the latter part of the judgment. Since the additional evidence was taken in the appellate Court, the appellant was questioned by this Court under Section 313 Cr.P.C. and the answers given by him were duly recorded.
7. The prosecution case rests on circumstantial evidence. The prosecution has put forward the following circumstances, each of which were vehemently assailed and in some instances successfully too by Mr. A. Ramesh, the learned Senior Counsel for the appellant.
I. MOTIVE
8. It is the case of the prosecution that the accused was eyeing his sister-in-law, the deceased. The prosecution relies upon the evidence of Vijayakumari [P.W. 3], the mother of the deceased, Gnanasekar [P.W. 4], the father of the deceased and Pitchumani [P.W. 5], the paternal uncle of the deceased. These witnesses say that Jayashree is a BCA degree holder and they performed her marriage with Ramkumar [P.W. 6] on 17.06.2007. It was an arranged marriage. After marriage, the couple lived in Vellore for some time and thereafter, they shifted to Chennai, because Ramkumar [P.W. 6] had got a job there. They took the first floor portion on rent from Viola [P.W. 1] and were living there. Jayashree became pregnant. They further said in their evidence that the appellant also stayed with them in Chennai. Vijayakumari [P.W. 3] in her evidence stated that, her daughter had complained to her about the mischievous conduct of the appellant, namely, that he peeped into the bathroom when she was having bath and while she was changing dress also he had peeped into the room. At that time, Ramkumar [P.W. 6] was not in the house and so, when the deceased told the appellant that she would tell her husband, the appellant pleaded with her not to tell this to his brother, by falling at her feet. These complaints were lodged by the deceased to her mother and they are relevant under Section 8 of the Evidence Act. Vijayakumari [P.W. 3] advised her daughter not to make an issue of this till delivery and thereafter, her husband can be persuaded to keep the appellant away from the house. Gnanasekar''s [P.W. 4] evidence does not throw much light on these aspects, because he admitted in the cross examination that his daughter did not tell him anything about this and that he learnt about all this only from his wife [P.W. 3]. Similarly we are not able to place much reliance on the evidence of Pitchumani [P.W. 5] the paternal uncle of the deceased, who in his evidence stated that the deceased had told him about the deviant behaviour of the appellant, because his evidence on this aspect does not inspire much confidence, as he had not told about this to the police when he was examined. Further when the deceased had not confided anything to her own father P.W. 4, it sounds strange to us that she would have said all these personal things to her paternal uncle [father''s brother]. At the same time, we are unable to reject the evidence of Vijayakumari [P.W. 3], which is very natural and convincing. We also have the evidence of Viola [P.W. 1], which will throw some light on the motive aspect. Viola [P.W. 1] in her evidence stated that she is living with her husband, son and daughter-in-law in the ground floor portion of their own house and they had rented the first floor portion to Ramkumar [P.W. 6] and Jayashree on a monthly rent of Rs. 3,000/-. In her evidence she stated that the deceased Jayashree was a very calm and sober person and Viola [P.W. 1] knew that she was pregnant. 17.02.2008 was a Sunday. Viola [P.W. 1] in her evidence stated that around 10.30 in the night on Sunday, she heard noise from the first floor and so when she went to Jayashree''s portion to enquire, she found Jayashree in a bewildered state. She found the appellant there and asked him whether he caused any disturbance to her, for which the appellant told her, he was only playing the fool and did nothing serious. At that time, Ramkumar [P.W. 6] was not in the house and so Viola [P.W. 1] asked Jayashree, if she would come down and stay in her portion, for which Jayashree seems to have told her that, she would stay there itself.
[a] From a careful reading of the evidence of Vijayakumari [P.W. 3] and Viola [P.W. 1], we are satisfied that all was not well with the appellant and his motives were insidious. Mr. A. Ramesh, learned Senior Counsel for the appellant submitted that, if really Jayashree had confided in her mother, she would not have brushed it under the carpet, but would have made an issue of it by bringing it to the notice of Ramkumar [P.W. 6].
[b] Mr. A. Ramesh, learned Senior Counsel also contended that the Investigating Officer admitted in the cross examination that he had not even asked Ramkumar [P.W. 6] whether anyone had given complaint about the venality of the appellant. We are not able to outrightly reject the evidence of Vijayakumari [P.W. 3] on the ground that she had failed to alert her son-in-law about the conduct of his brother, because human reactions are not always predictable. Inscrutable are the ways of human behaviour. The marriage between Ramkumar [P.W. 6] and Jayashree was solemnized only on 17.06.2007 and immediately thereafter, she became pregnant and all these factors would have weighed in the mind of P.W. 3 not to make a hue and cry of this matter and instead place it in the back burner for the time being. Hence, we do not find any infirmity in the conduct of Vijayakumari [P.W. 3] as contended by Mr. A. Ramesh, learned Senior Counsel for the appellant.
[c]As regards the failure of the Investigating Officer to ask this minimum question to Ramkumar [P.W. 6], we reserve our answer to be given subsequently while discussing the role of Stephen [P.W. 17], the investigating Officer.
[d]The learned Senior Counsel for the appellant submitted that Viola [P.W. 1] had not told the police that, on the previous day when she went up on hearing the noise, the accused told her that he was merely playing pranks. We do not consider this as a very serious omission. From a reading of the answer given by Viola [P.W. 1] in the cross examination and the answer given by the Investigating Officer in his cross examination we find that, Viola [P.W. 1] has not told the police that the accused told her that he was playing pranks. From the answers we are not able to conclude that Viola [P.W. 1] did not tell the police about the fact that she went up at 10.30 p.m. on the previous day, on hearing noise and saw the deceased in a state of shock and the accused there etc. The evidence of Viola [P.W. 1] that on 17.02.2008 around 10.30 in the night she heard some noise and went to Jayashree''s portion to enquire has been corroborated by Naveen [P.W. 2]
[e]In fact, when 162 Cr.P.C. contradiction is sought to be raised, the trial Judge and the Public Prosecutor should be very careful in seeing whether the omission to state a particular fact is indeed a contradiction or not. Every omission is not a contradiction. The police statement can be used only to establish contradictions and when a particular omission amounts to a contradiction, only then it should be brought on record. The trial Judge and the Public Prosecutor seem to be oblivious of this fundamental rule and have permitted this answer to go on record as if it were a contradiction. Therefore, we hold that the prosecution has established that the appellant was eyeing his sister-in-law, the deceased.
II LAST SEEN THEORY:
9. According to the prosecution, the deceased and the appellant were alone at home on 17.02.2008 - 18.02.2008. Ramkumar [P.W. 6] in his evidence stated that he got married to Jayashree on 17.06.2007 and stayed at Vellore for some time and thereafter, shifted to Kodungayur house in Chennai. In his evidence he clearly stated that, he was staying with his wife and brother in the house and that on the date of incident, he was in Bangalore on official work. Viola [P.W. 1] and her son Naveen [P.W. 2] in their evidence stated that, the first floor portion of the house was occupied by Ramkumar [P.W. 6], his wife Jayashree [deceased] and the appellant. When the accused was questioned under Section 313 Cr.P.C. on this innocuous aspect based on the evidence of Viola [P.W. 1], strangely he denied the same.
[a]The next important piece of evidence is that on the previous day, i.e. on Sunday [17.02.2008], the appellant and the deceased were alone in the house and they were last seen at 10.30 p.m. on 17.02.2008 by Viola [P.W. 1], whose evidence on this aspect has been extracted by us while discussing the motive aspect. To recapitulate, Viola [P.W. 1] in her evidence stated that on Sunday night around 10.30 p.m., she heard noise from the first floor and when she went there, saw the deceased in a state of shock and when she questioned the appellant he stated that, he had not disturbed her, but was only pranking. When this circumstance was put to the appellant under Section 313 Cr.P.C., he denied the same, but at the same time he has not stated as to where he was in that night. Therefore, we hold that the prosecution has established beyond any pale of doubt that the deceased and the appellant were together in the house in the night of 17.02.2008 and Ramkumar [P.W. 6] was not at home.
III FINAL CIRCUMSTANCE
10. On 18.02.2008, Viola [P.W. 1] received a phone call from Murali, one of the brothers of Ramkumar that, something had happened to his sister-in-law and therefore, she rushed to the first floor and found Jayashree on the floor with a knife stabbed into her abdomen and the accused sitting outside with his hands on his head. We would like to extract this portion of the evidence of P.W. 1 verbatim:
The English translation of the above extracted evidence would run thus:
"I got a call at about 7 a.m. on 18.02.2008. Ramkumar''s another brother by name Murali, rang up from Vellore and said that he was told by the accused that he does not know as to what has happened to his sister-in-law and that she was not getting up even on being woken up. I ran upstairs and saw. The accused was seated in the open portico upstairs. He was keeping both his hands on his head. The door was just closed. The accused was seated outside. When I opened the door and saw, in the space between the hall and kitchen, Jayashree was lying facing the roof. Knife was found stabbed in the stomach. I asked the accused as to what he did. The accused replied that when he woke up and saw, the doors were open, that someone had stabbed and cut the chain and gone. When I asked him as to why he did not say upto 7.30, the accused replied that he was tensed. I called the neighbours and they too came. They too asked the accused as to what happened. I said that complaint may be lodged with police. The accused said "Aunty, don''t be in a hurry, let mother come." After scolding him, I called police in ''100''. People had gathered at the entrance of my house. At that time, the accused came down from upstairs carrying a plastic cover. When asked as to what it was, he replied that it was garbage. Throwing it in the vacant plot behind our house, the accused went out."
[a] Viola [P.W. 1] was subjected to cross examination and the defence was not able to demolish the essence of her evidence in any manner and they were able to point out only certain stray contradictions in her evidence vis-�-vis her police statement. It was suggested to Viola [P.W. 1] that the appellant was not in the house on that day. Viola [P.W. 1] was corroborated by Naveen [P.W. 2] her son, who in his evidence stated that he went with his mother to Jayashree''s portion around 7 o''clock and he found the body of Jayashree with a knife stabbed in her abdomen and the accused sitting outside with his hands on his head.
[b]On a careful scrutiny of the evidence of Viola [P.W. 1] we find that she is a teacher by profession and is running a creche in her house itself. A complete reading of her evidence shows that she had reacted in the most natural manner on both the days, i.e. on 17.02.2008 and 18.02.2008. We find that the accused has given a false explanation to Viola [P.W. 1] that, when he got up in the morning he found the house doors opened and someone had stabbed Jayashree and had taken away her chain. If he had been sleeping when that incident had taken place, he would not have known that someone had taken away the chain. He would have told Viola [P.W. 1] that when he got up he found Jayashree murdered. On the contrary, he said that Jayashree was stabbed by someone who had taken away her chain. He did not raise any alarm or try to chase the offenders.
[c]Assuming for a moment that he was not aware as to who perpetrated the offence, the first reaction would have been to make a hue and cry by calling the landlady, who lives in the ground floor and others. On the contrary, he has telephoned his brother Murali, who in turn has telephoned Viola [P.W. 1] and only on that basis Viola [P.W. 1] had gone to the first floor along with her son Naveen [P.W. 2]. It is not known as to why the appellant did not call Ramkumar [P.W. 6]. He has not given any explanation in his 313 Cr.P.C. examination also. On the contrary he has denied everything in the 313 Cr.P.C. including the factum of Ramkumar''s marriage with Jayashree. Even if we assume that the appellant was shell shocked on seeing the body of his sister-in-law and did not know how to react, his conduct of telling Viola [P.W. 1] not to tell the police till mother comes is indeed astonishing.
11. Mr. A. Ramesh, learned Senior Counsel meticulously took us through the entire evidence in this case to drive home the point that Stephen [P.W. 17] the Investigating Officer has been misdirecting the investigation from the start and we have no two opinions about it.
[a]To begin with, we saw the written complaint [Ex. Pl] supposed to have been given by Viola [P.W. 1] to the police. The complaint runs to 2-1/2 pages written closely in Tamil language and is the miniature version of the final report. According to the police, Viola [P.W. 1] came to the police station at 7.45 and handed over the complaint. When Mr. Stephen [P.W. 17] the Inspector of Police was examined by us in the High Court, we asked him whether the police had reached that place on the telephonic information to " 100" given by Viola [P.W. 1]. The Inspector of Police accepted this and said that the police had gone to the place of occurrence on the telephonic information given by Viola [P.W. 1] and he explained it by saying that it was the patrol party which had gone there and had directed Viola [P.W. 1] to go to the police station and give a complaint.
[b]When we questioned him as to who was the scribe of the complaint, he told that it was not written by Viola, but by someone else, whom he does not know. When the police has gone to the place of occurrence on the telephonic information, they ought to have collected the complaint from Viola [P.W. 1] then and there and ought not to have made a lady to come over to the police station for giving a written complaint, in respect of an offence of murder that had taken place in the first floor of her own house. The most curious aspect is on receipt of the complaint, the police have registered a case under Sections 376 r/w 511 IPC and 380 IPC. One can understand Sections 302 and 316 IPC, but we are not able to gauge as to how from the averments in the complaint the police registered a case for attempt to rape, because the ingredients in the complaint shows that Viola came to know of the offence only when she went to Jayashree''s portion in the morning and saw Jayashree lying on the floor with a knife embedded in her abdomen. On seeing the photographs we found that Jayashree''s entire dress was intact, but still the police registered a case under Section 376 r/w 511 IPC, when Viola''s complaint has no ingredients for that.
[c] Viola [P.W. 1] being a truthful witness stated in her chief examination itself that she called ''100'' and informed the police which has been suppressed by Mr. Stephen the Investigating Officer.
[d]In the Observation Mahazar [Ex. P2], Mr. Stephen [P.W. 17] has noted the presence of semen in the lower pant [kameez] worn by the deceased, but the Chemical Examiner''s Report [Ex. P14] states that no semen was detected in it. This apart, in the Observation Mahazar [Ex. P2] he has noted the presence of a black colour brassier with Naidu Hall inscription on it lying next to the body, but whereas, this brassier [M.O. 7] was recovered by Dr. Santhakumar [P.W. 10] the post-mortem doctor at the time of autopsy and was handed over to Devaraj [P.W. 9] Head Constable, who in turn handed over the same to Mr. Stephen [P.W. 17], the Investigating Officer after the post-mortem on 19.02.2008. Therefore, how did Mr. Stephen [P.W. 17] note the presence of the brassier with Naidu Hall inscription on it [M.O. 7] in the Observation Mahazar?
[e]Mr. Stephen [P.W. 17] admitted that he first had the place of occurrence photographed by a police photographer [P.W. 12] and only thereafter, requisitioned the services of Mrs. Lakshmi Balasubramanian [P.W. 13], the Forensic Expert to come to the place of occurrence to help him in collecting the clue materials. On carefully seeing the photographs, there are no traces of hair strands in the right palm of the deceased Jayashree. This is obvious to naked eye. To a specific question put by the defence, the Investigating Officer stated, that he had not asked the photographer to zoom-in the palm so as to capture the presence of hair strands in the palm of Jayashree. Assuming for a moment that he had recovered some hair strands from the place of occurrence, he did not make a requisition for DNA profiling and comparison with the hair strands that were collected by Dr. Santhakumar [P.W. 10] from the appellant on 22.02.2008. Had the DNA profiling been done, it would have clinched the issue, but on the contrary, the Investigating Officer had merely requested the experts to do comparison of the hair, which is a very weak piece of evidence. When the Investigating Officer was questioned by us in the open Court, he was not able to give any specific explanation as to why he did not make requisition for DNA profiling. We were not able to order DNA profiling, because we find from the Chemical Examiner''s Report that the hair strands that were seized from the place of occurrence were completely used by them.
[f]The arrest of the accused smacks of absolute callousness. The accused was present when Viola telephoned ''100'' and the police came, but the Investigating Officer has the temerity to say that he arrested the accused at 5.00 p.m. near his work spot at Sembudas street. To a specific question put by this Court, the Investigating Officer said that the accused was working in INC PVC Pipe line Company at 39/40 Sembudas Street, Broadway, Chennai and that he was arrested on 18.02.2008 at 5.00 p.m. from Sembudas Street. He further stated that he did not go to the office of the appellant which is in the same street, from where he was arrested, to find out whether the accused had attended the office on that day.
[g]When we asked him specifically whether the appellant was present when the patrol police party came to the place of occurrence, he said that the appellant was not there. We do not know how he knew this fact when even according to him, the police patrol party came first to the place of occurrence and they directed Viola [P.W. 1] to go to the police station and only after registration of the FIR he had come to the place of occurrence. He has completely suppressed the fact that the police patrol came to the place of occurrence.
[h]Naveen [P.W. 2] in his cross examination stated that the appellant was taken by the police from their house in the morning when they came. Therefore, Stephen''s [P.W. 17] evidence that he arrested the appellant at 5.00 p.m. at Sembudas Street falls like a pack of cards.
[i] After the arrest of the appellant he did not subject the appellant to medical examination immediately, as required under Section 53-A of the Cr.P.C. and on the contrary, he had sent him for examination only on 22.02.2008. According to Stephen [P.W. 17], after arresting the appellant, he seized from his possession some gold ornaments [M.O. 3] under the cover of Mahazar [Ex. P12] in the presence of witness Mohan [P.W. 11]. This M.O. 3 series was not identified by any of the prosecution witnesses including parents [P.W. 3 and P.W. 4], paternal uncle [P.W. 5] and Ramkumar [P.W. 6] the husband of the deceased as belonging to the deceased. In the absence of this link evidence, we are not able to confirm the conviction and sentence for the offence under Section 392 IPC. This is a rank remiss in the conduct of prosecution before the trial Court.
[j] According to Mr. Stephen [P.W. 17] he conducted the inquest over the body of Jayashree at the place of occurrence from 9.30 to 11.00 in the morning. We perused the photographs [M.O. 6 series], from which it can be seen that she was wearing salwar and kameez. After post-mortem, her apparel, namely, the salwar with a tear in the abdomen part signifying the entry of the knife into her body, was handed over by Dr. Santhakumar [P.W. 10] to Devaraj [P.W. 9] Head Constable, along with the kameez, brassier and panties. Thus it is abundantly clear that, Jayashree was fully attired when the inquest was done. But in column 7 of the Inquest Report [Ex. P20] it is stated that, there are "bite marks on the right breast." We are unable to fathom as to how Mr. Stephen [P.W. 17] could see this and note it in the Inquest Report [Ex. P20], unless he is endowed with extraordinary vision to see through garments. When he was cross examined on this aspect, he was not able to give any satisfactory explanation. The Post-mortem Certificate [Ex. P4] refers to the following injury:
"2) Red bruising 3.5 x 2 x 0.2-0.1 cm on the inner aspect of middle part of right breast, abutting the areola of the right breast."
This observation by the post-mortem doctor is understandable. But, such a reference in the Inquest Report [Ex. P20] makes us to infer that, the Inquest Report was prepared only after getting the Post-mortem Certificate [Ex. P4]. The Post-mortem Certificate [Ex. P4] is dated 19.02.2008 and the Inquest Report [Ex. P20] has also reached the Court only on 19.02.2008, as could be seen from the initial and date endorsed thereon by the Magistrate
[k]After arresting the accused, Stephen [P.W. 17] the Investigating Officer has recovered a shorts [M.O. 5 series] allegedly worn by the appellant at the time of occurrence, from a bush in graveyard, under the cover of Mahazar [Ex. P11]. In Ex. P11 it is clearly stated that a light yellow colour shorts with semen stain, but whereas the Chemical Examiner''s Report [Ex. P14] states that semen was not detected in it. We find that there is absolutely no evidence for convicting the appellant for the offence under Section 376 IPC r/w 511 IPC and therefore, we are acquitting him of this charge also. The prosecution has established that Jayashree was haying in her uterus a 36 cm dead male foetus of 7 months old and its death has been caused by the stab injury. We place on record our sincere appreciation to Dr. Lakshmi Balasubramanian [P.W. 13], Mrs. S. Vijaya [P.W. 14] and Mrs. Vimali Thyagarajan [P.W. 15], Experts from Tamil Nadu Forensic Sciences Laboratory, for their neutrality in keeping with the faith reposed on such experts by the Parliament via Sec 293 Cr.P.C.
12. Mr. A. Ramesh, the learned Senior Counsel for the appellant cited the following judgments:
"[1]
[2]
[3]
[4]
[7] CRL. A. NO. 1485/2008 State of Gujarat v. Kishanbhai"
We have no quarrel with the proposition laid down therein, wherein it is stated that in a case of circumstantial evidence, the prosecution should prove every circumstance beyond reasonable doubt and all these circumstances should cumulatively point only to the guilt of the accused. In this case, we have catalogued the three circumstances above, which clearly points down to the guilt of the appellant and in the absence of any explanation forthcoming from the appellant in his 313 Cr.P.C. examination and in the light of false explanation given by the appellant to Viola [P.W. 1] when she confronted him, we find that the prosecution has proved the incriminating circumstances beyond reasonable doubt.
13. Here we are constrained to invoke Section 106 of the Evidence Act which casts a burden on the accused to prove facts which were especially within his knowledge. It is not necessary that he has to prove it beyond reasonable doubt and that he could have proved by preponderance of probabilities, which in this case, the appellant had failed to do even that. We rely upon a recent judgment of this Court in
"36. In view of the above, the law on the issue can be summarised to the effect that statement under Section 313 Cr.P.C is recorded to meet the requirement of the principles of natural justice as it requires that an accused may be given an opportunity to furnish explanation of the incriminating material which had come against him in the trial. However, his statement cannot be made a basis for his conviction. His answers to the questions put to him under Section 313 Cr.P.C cannot be used to fill up the gaps left by the prosecution witnesses in their epositions. Thus, the statement of the accused is not a substantive piece of evidence and therefore, it can be used only for appreciating the evidence led by the prosecution, though it cannot be a substitute for the evidence of the prosecution. In case the prosecution''s evidence is not found sufficient to sustain conviction of the accused, the inculpatory part of his statement cannot be made the sole basis of his conviction. The statement under Section 313 Cr.P.C is not recorded after administering oath to the accused. Therefore, it cannot be treated as an evidence within the meaning of Section 3 of the Evidence Act, though the accused has a right if he chooses to be a witness, and once he makes that option, he can be administered oath and examined as a witness in defence as required under Section 315 Cr.P.C.
An adverse inference can be taken against the accused only if the incriminating material stood fully established and the accused is not able to furnish any explanation for the same. However, the accused has a right to remain silent as he cannot be forced to become witness against himself."
14. In this case, the prosecution has satisfactorily proved that:
"[a]The appellant had been stalking his sister-in-law with lascivious eye, that on 17.02.2008 at 10.30 in the night he had caused some disturbance to the deceased.
[b]The appellant and his sister-in-law were alone at home in the night on 17.02.2008.
[c]The appellant was there with the dead body of his sister-in-law when Viola [P.W. 1] and her son Naveen [P.W. 2] came to the place at 7.00 a.m. on 18.02.2008.
[d]He gave a false explanation to Viola [P.W. 1] that when he got up in the morning he saw Jayashree dead and that someone had taken away her gold ornaments.
[e]When Viola [P.W. 1] wanted to call the police he persuaded her not to call the police on the pretext that his mother should come.
[f]In his examination under Section 313 Cr.P.C. he gave a wholesale denial of every fact, however innocuous and non incriminating they were."
15. It is true that this is text book case to be showcased as a model to demonstrate how not to investigate a case. But, that will not entail an acquittal as held by the Supreme Court in Karon Singh v. State of Haryana [2013(3) MLJ (Crl) 103 SC]. In fine, the appeal is partly allowed. The conviction and sentence imposed upon the appellant for the offence under Sections 376 r/w 511 and 397 IPC are set aside and he is acquitted of those charges. The conviction and sentence imposed upon him for the offence under Section 302 IPC and 316 PC are confirmed.
Before parting, we are marking a copy of this judgment to the Director General of Police and the Commissioner of Police, Chennai to take departmental action against Mr. Stephen [P.W. 17] for gross dereliction of duty in the investigation of this case as directed by the Supreme Court in
