In Re: Sangappa Goundar and Others

Anantanarayanan, J.—This appeal is a very interesting instance of a situation that might arise in a case of murder, fortunately not very frequently, in which the Court is called upon to come to a conclusion upon the question of guilt, without the body of the victim ever having been recovered. Before proceeding to the facts, it might be of interest to notice the principles applicable to a situation of that kind, upon the law. In England, the early statement of the rule of law by Sir Mathew Hale in Pleas of the Crown, volume II, page 290, was to the effect that, at least, the body must have been found dead, before there could be any safe inference of guilt on a charge of murder. But, subsequently, this was departed from, and the law was stated differently; it may be briefly put in the form that where there is circumstantial or direct evidence, which otherwise establishes to the satisfaction of Court, both the fact of death by homicidal violence of the victim, and the guilt of the accused on the charge of murder, it is not strictly necessary that the dead body of the victim should have been recovered. But, of course, evidence of that kind must be of the strongest and clearest character, and must admit of no alternative hypothesis, either on the fact of death by homicidal violence or on the guilt of the accused.

The prior case law has been reviewed, at some length in Anant Chintaman Lagu Vs. The State of Bombay, . The leading English decision upon the subject is Regina v. Onufrejezyk (1955) 1 Q.B. 388 and Lord Goddard C.J., referred to the facts and headnote in Rex v. Horry (1952) N.Z.L.R. 111 and ultimately expressed the principle in the following form:

The headnote of that case, which he took as stating the law, is as follows: ''At the trial of a person charged with murder, the fact of death is provable by circumstantial evidence, notwithstanding that neither the body nor any trace of the body has been found and that the accused has made no confession of any participation in the crime. Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for. Speaking for myself, I entirely agree with that as a statement of the law except that I would not have used the words ''morally certain''; I would prefer ''such circumstances as render the commission of the crime certain''.

Another case of great interest upon this aspect, because it also relates to a trial for murder where the bodies of the victims were never recovered is Raghav Prapanna Tripathi v. State of Uttar Pradesh (1964) 3 S.C.R. 239. In that case, after detailing the circumstances of suspicion, both upon the fact of murder and upon the guilt of the concerned accused, which were indeed powerful, their Lordships came to the conclusion that they were not strong enough to warrant the sole conclusion that the accused committed the murder of his wife and son, for which he was tried.

The facts of the present case can first be stated by us, in a brief compass; for this purpose we are omitting reference to material which may not be strictly essential. The facts are that accused 1 who is tried for the murder of his wife Ramayee, was married to her about nine years previous to this offence, and that, recently prior to the offence, ill-feeling arose between the husband and wife. The record is clear that accused 1 married, or attempted to marry, a second wife, that Ramayee (deceased) preferred a criminal complaint against her husband and that accused 1 was acquitted at that trial. Even after this, accused 1 dallied with the idea of taking a second wife, and. P.Ws. 2, 3 and 10 deposed that accused 1 sought their help for a separation between himself and Ramayee, on his undertaking to pay her Rs. 2,000 or Rs. 3,000 towards maintenance. This attempt fell through, because Ramayee would not consent. But it does appear as if accused 1 was finding life with her intolerable and wanted freedom from the bonds of matrimony.

Wednesday, the 18th October 1961, was the last day on which Ramayee was seen alive. It is clear that previously she went to pay a visit of condolence at Veerappankattur. According to the consistent defence of accused 1, she never returned from this visit. But P.Ws. 2, 9 and 10, all residents of Mettukulam, where accused 1 lives, swear that they saw Ramayee that Wednesday, and that she was returning, or had returned to her husband''s house. She was not subsequently seen alive, and her body was never recovered. Upon the aspect of her death by homicidal violence, the prosecution advanced two different and inconsistent versions. They may be briefly set forth as follows.

The first version relates to the purchase of folidol poison by accused 1 sometime prior to this offence, and the death of Ramayee caused by administration of this poison in coffee, followed by strangulation. This version depends essentially upon the testimony of Periaswamy (P.W.1), examined as an approver in the case. It is not necessary to set forth the particulars here, but broadly stated the testimony of P.W. 1 is that Ramayee was given folidol poison in coffee, perhaps even by accident, and that later accused 1 assisted by his parents, accused 3 and 4, was seen by P.W. 1 holding the woman and strangulating her. In paragraph 33 of his judgment, the learned Sessions Judge has given clear reasons why he is totally unable to accept the evidence of P.W. 1. The learned Judge also points out that the evidence is such that purchase of folidol poison cannot be strictly considered against accused 1 on the charge of murder. We do not think it is necessary to analyse this aspect further. This particular version of the crime literally falls to pieces, when critically examined. The evidence of P.W. 1 certainly needs corroboration in material particulars, upon his account of the murder. The learned Public Prosecutor does not contend that any such corroboration, even of a quite incidental character, is forthcoming.

However, the death might have been caused, the prosecution claims that, the next day, the body of Ramayee was taken in a cart by accused 1 assisted by P.W. 1, and thrown into the Noyyal river. The body was never recovered, nor was the saree or any other article on the person of the victim recovered, in spite of diligent investigation. The cart was very carefully examined for blood-stains, but none were found. There was no local trace discovered either, of a body having been carried to the particular spot referred to in the evidence, and thrown into the river from there. The only conclusion possible, on this aspect of the case, is that this version of the murder and the disposal of the body, stand uncorroborated by evidence worth the name.

It is the alternative cash of the prosecution which deserves more serious scrutiny. The evidence, on that aspect, is relatively simple. It consists mainly of the testimonies of P.Ws. 5, 6 and 3 corroborated subsequently by a statement furnished by accused 1 (exhibit P-3) before the village munsif (P.W.25). We think it is very likely that P.W. 5, the cousin of Ramayee, and P.W. 3, another close relative, followed by such persons as P.W. 6, did proceed to the house of accused 1 that day and did tax him with the dis appearance of the woman; that was eminently natural, and it is quite likely that these persons declined to accept the immediate and facile explanation of accused 1 that Ramayee had not returned from the condolence visit, and was not to be seen. P.W. 5 frankly concedes we threatened accused 1 to come out with the truth. These witnesses told the village munsif (P.W. 25) that they did intimidate accused 1. That they would not leave accused 1 so lightly. It was after this, that is, after pressure, inducement and coercion by these witnesses, that accused 1 came out with a statement concerning the occurrence, which is what he repeated to the village munsif (P.W. 25) and which has been recorded as exhibit P-3. We here set forth the statement in the form in which it was ultimately written down (exhibits P-3 and P-19):

On Wednesday, 12 days before from to-day, I gave a blow on the head of my wife Ramayee with hand stick. She fell down and died. I and Thekkukattu Periannan of Thamarapalayam, lifted and put her into the cart, and left her in Noyyal river. She was wearing black saree. She was having kammal. We left her like that.

The only other evidence against accused 1 is with regard to the disposal of the jewels of the woman by him (M.Os. 1, 2 series and 3), at the premises of a shroff (P.W. 18). This aspect of the case is not in doubt, because the counterfoil (exhibit P-12) has been produced by P.W. 18, the jewels themselves were recovered, and P.W. 19 also corroborates the sales. But, as Shri Mohan Kumaramangalam rightly, urges, the disposal of the jewels by the husband, some days after the woman''s disappearance, is of little significance per se. No doubt, Ramayee was wearing the jewels, and witnesses speak to that fact. But she might have delivered them to accused 1, either immediately on her return, or even on an earlier occasion. Finding that the woman had virtually disappeared, accused 1 might have disposed of the jewels on his own account. He might even be guilty of dishonest conversion of the jewels to his own use, by this act, but it does not prove or even probably an charge of murder. It is true that accused 1 has no satisfactory explanation for the disposal of the jewels by him, some days after Ramayee was last seen alive. According to the record, he attempted to give a different name, and to conceal the precise origin of the jewels. But that is capable of the very simple explanation that he did not want his wife, or her relatives, later to tax him with the sale of the jewels. The sale of the jewels is no indication, even remotely, that the woman met with her death by homicidal violence, and that accused 1 perpetrated the offence.

We shall assume for a moment, that the explanation of accused 1 is false that the woman did not return after the previous condolence visit to Veerappankattur. But that again does not take us far. Even if she returned to the village of her husband (Mettukulam) on that Wednesday, it is by no means certain that she returned to her house and was in the house on Wednesday night when the murder is said to have occurred. In other words, for proof of the actual fact of the murder, we have absolutely no material beyond the extra-judicial confession, which is both oral and embodied in a statement to P.W. 25 (exhibits P-3 and P-19). Learned Counsel for accused 1 stresses that the defence attempted to show that there were suspicious features about exhibits P-3 and P-19; these are supposed to lend colour to a suggestion that exhibit P-3 might have been written, not when accused 1 was taken before the village munsif, but subsequently at the police station in the presence of the Sub-Inspector (P.W. 26). Even assuming that this is not so, exhibit P-3 has no higher probative value than the oral confession to P.W. 5, etc. It is abundantly clear that that confession was extorted by threats and intimidation. It was not voluntarily made, and a man in mortal dread of a criminal trial on the gravest of charges might have confessed to a crime, which he did not commit. It is here pertinent to observe that accused 1 attempted to put forward the version that the murder was not pre-planned or deliberate, but was the unfortunate consequence of a blow given in anger. We do not think that we would be justified in accepting and acting upon the extra-judicial confession, whether oral or written. Once that is excluded; it is clear that the fact that accused 1 gave an explanation for the disappearance of his wife which may not be true, and the fact of the subsequent disposal of her jewels by him, would be of little material weight or significance. This is a case in which, not merely was the body of the victim never found, but the death of the victim by homicidal violence and the responsibility for the murderous assault, have not been established by evidence, which would exclude any other hypothesis.

It logically follows that accused 1 will have to be acquitted upon the charge of the murder of his wife. The charges against the parents (accused 3 and 4) of giving false information of the offence, with intent to screen the offender from legal punishment, upon which they have been convicted (Section 201, Indian Penal Code), are not supported by any evidence independent of the extrajudicial confession and the conduct of accused 1. We must point out that the evidence of the approver (P.W.1), is a different and uncorroborated version, and that P.W. 1 has not been believed. In this view, it is clear that accused 3 and 4 are also entitled to acquittal upon the conviction u/s 201, Indian Penal Code It further follows that accused 1 cannot be convicted u/s 201, Indian Penal Code, either (two counts), a conviction for which no sentence has been awarded at the trial. Hence we acquit accused 1 both u/s 302 and Section 201, Indian Penal Code (two counts), and equally acquit accused 3 and 4 u/s 201 , Indian Penal Code. The appeal is allowed, and the Appellants will now be set at liberty.