Muthu vs State

N. Dhinakar, J.—The appellant who hereinafter will be referred to as the first accused (Al) for the sake of convenience, was tried before the

learned Sessions Judge, Chengleput, in Sessions Case No. 99/1990 on a charge of murder with an allegation that at 10.00 p.m. on 19-1-1989, he

caused the death of his wife Devi alias Deivanayaki by smothering her. The other accused, who was tried along with Al in the said Sessions Case,

was acquitted by the learned Sessions Judge and in this Judgment he will be referred to as the second accused (A2) for the sake of convenience.

The learned Sessions Judge convicted Al and sentenced him to imprisonment for life. Hence, the present appeal.

Facts necessary to dispose of the appeal can be briefly summarised as follows: The deceased is the daughter of P.W. 7 and the second wife of

Al. Al married the deceased by misrepresenting to the mother of the deceased that he is a widower. The marriage was solemnissed at the office of

the Registrar of Marriages on 16-9-1988. The deceased on account of the wedlock conceived. Some time prior to Deepavali, Al left the house of

PW-7 where the deceased and Al were residing, by stating that he is leaving for his village. He promised to come back, but, he did not return. The

deceased left her mother''s house in search of her husband, Al in the case, and at that time she was wearing a blouse, MO-2, a saree, MO-3, and

a nose screw, M.O. 13. She was seen thereafter by PW-4 whom, she asked the route to reach Sirukaranai, the village of Al. PW-4 gave her the

directions and thereafter, the deceased took a cycle from a cycle-shop and went towards Sirukaranai. PW-3 a resident of Sirukaranai, had seen

the deceased and Al going together towards a casuarina ''thope'' and at that time, the deceased was seen wearing a blouse MO-2 and a saree with

the design of red flowers, MO-3. Thereafter the deceased was not seen alive.

On 21-1-1989, PW-2 the owner of the casuarina ''thope'' saw a dead body of a woman and informed the said fact to PW-1 the Village

Administrative Officer of Parukkal Village at 9.30 a.m. who on the basis of the information furnished to him by PW-2 went to the place and found

the dead body of a woman. He found a blouse, MO-2, and a saree MO-3 on the dead body. It had no jewels. MO-4 series, slippers were also

seen nearby. He also noticed broken bangles, MO-6 series. The two legs were seen tied with a rope, MO-7. PW-1 left the Talayari near the dead

body and thereafter left for the police station at Acharappakkam. At Acha-rappakkam Police Station, he gave a complaint, Ex. PW-1 to a Head

Constable, who is no more, and the said complaint was registered as a case in Crime No. 23 of 1989 u/s 302, IPC. Express reports were

prepared. Ex. P-19 is the copy of the printed First Information Report.

Investigation was taken up by PW-12, the Circle Inspector of Police, Acharappakkam Circle. On taking up the investigation, PW-12 reached

the scene of occurrence and conducted inquest over the dead body of Deivanayaki between 8.45 p.m. and 10.45 p.m. in the presence of

panchayatdars.

At the time of inquest, he questioned and recorded the statements of P.Ws. 1 and 4. Ex. P-23 is the inquest report. He issued a requisition, Ex. P-

24 to conduct autopsy.

On receipt of the requisition, Dr. Mahadevan attached to Government Hospital, Maduranthakam, conducted autopsy on the body of

Deivanayaki and found the following ante-mortem injuries.

A lacerated injury 3"" the length 1/2"" x 1/2"" running across the palmar aspect of the right wrist front.

A lacerated injury 1 �"" x �"" x �"" over the right forearm.

A lacerated injury 1"" x �"" x �"" over the left wrist joint.

A lacerated injury over the left palmar 1 � x �"" x �"" across the 1st Metacarpophalanxal joints exposing outside the surfaces of the joints.

Superficial abrasions over both the thighs, knees and legs on the anterior aspects.

He issued Ex. P-18 the post-mortem certificate, with his opinion that the deceased would appear to have died of asphyxia due to smothering.

PW-12 continued his investigation and prepared an observation mahazar, Ex, P-20 and drew a rough sketch, Ex. P-21. He also questioned the

other witnesses in the case and seized M.Os. 1, 2, 7 and 14 produced by the police constable after postmortem. Further investigation was taken

by his successor-in-office, PW-13. PW-13 on taking up the investigation, searched for A1 and arrested him at 10.00 a.m. on 25-1-1989 in the

presence of witnesses. He questioned A1, who gave a statement, admissible portions of which are marked as Exs. P-2 and P-3. Al took the

police party to a place from where he took and produced M.Os. 8 and 9 which were seized under a mahazar. Al also took PW-13 to PW-8 and

on being pointed, PW-13 questioned PW-8 who then produced MO-13, a nose screw belonging to the deceased, which was seized under a

mahazar attested by witnesses. The Officer also arrested A2. After completing the investigation, the final report was filed by his successor-in-office

against A1 and A2 on 30-10-1989.

When questioned u/s 313, Cr. P.C. on the incriminating circumstances appearing against him, Al denied his complicity and pleaded innocence.

The case of the prosecution is that Deivanayaki died on account of asphyxia due to smothering at 10.00 p.m. on 19-1-1989 and that Al who is

the appellant herein, is responsible for that. To prove the said fact, the prosecution, before the trial Court, relied upon circumstantial evidence since

the occurrence was not witnessed by anyone. It is a 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. 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 defi-niteness 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. The State of Bihar, . The said view had been reiterated by the Supreme Court in State of Maharashtra Vs. Suresh, .

Keeping the above principles in mind, we will now have to find out whether the prosecution succeeded in proving all the links in the chain of

circumstances.

The fact that Deivanayaki died on account of asphyxia due to smothering is established through the evidence of the postmortem doctor who

conducted autopsy. Dr. Mahadevan attached to Government Hospital, Maduranthakam conducted autopsy on the body of Deivanayaki and gave

his opinion that she died on account of asphyxia due to smothering. As Dr. Mahadevan was on long leave, PW-11 who was familiar with the

signature and the handwriting of Dr. Mahadevan, was examined to prove Ex. P-18 the post-mortem certificate, issued by the said doctor. PW-ll

has in his evidence, stated that Dr. Mahadevan has opined on conducting autopsy, that Deivanayaki died on account of asphyxia due to

smothering. The said fact was not disputed by the defence. We, therefore, hold that Deivanayaki died on account of homicidal violence.

Though the occurrence was not witnessed by anyone, the prosecution, before the trial Court, let in evidence to prove the circumstances

pointing out the guilt of Al. The first circumstance is brought out through the evidence of PW-7 the mother of deceased. PW-7 has in her evidence

stated that A1 married her daughter, the deceased, at the office of the Registrar of Marriages on 16-9-1988 and Ex. P-ll is the certificate issued by

the Registrar of Marriages. Al also does not deny his marriage with the deceased. According to PW-7, A1 left the house after informing her and

his wife, the deceased that he is leaving for his native village Sirukaranai and will return before Deepavali, but, he did not return. It is her further

evidence that the deceased left the house in search of her husband and at that time, she was wearing a blouse, MO-2, and a saree MO-3, as well

as a nose screw, MO-13. Accordingly to her, the decaesed did not return and later, she came to know that a dead body was seen in a casuarina

''thope'' and that she went to the police station where, on seeing the photographs of the dead body, identified the dead body in the photographs as

that of her daughter. The evidence of PW-7 clearly shows that the dead body, that was seen in the casuarina ''thope'' by PW-2 on the morning of

21 -1 -1989 is the body of Deivanayaki. Further, when the body was seen by PW-2 who went and informed PW-1 the village Administrative

Officer of Parukkai Village, henoticed MsO-3.2 and 2, the clothes, which were worn by the deceased when she left the house of her mother.

The next (sic) piece of evidence against A1 is the evidence of PW-4. PW-4 is a flower-vendor by profession. She was a resident of

Acharappakkam and was doing her business at Acharappakkam. According to PW-4 the deceased went to her and asked for directions to reach

Sirukaranai, the village of A1. PW-4 told her the directions and thereafter the deceased took a cycle from a cycle-shop and proceeded towards

Sirukaranai.

The next piece of evidence is brought out through the evidence of PW-3 who is a resident of Sirukaranai village. PW-3 has, in her evidence,

deposed that the deceased and A1 were seen proceeding towards a casuarina ''thope'' and at that time, the deceased was wearing MOs. 2 and 3.

Next day, she heard people talking that the dead body of a woman is lying in the casuarina ''thope''. This evidence of PW-3 establishes the fact

that the deceased was seen last alive in the company of Al and thereafter, was not seen by anybody and only her body was seen by PW-2, the

owner of the casuarina ''thope''.

The last and important piece of evidence is the arrest and recovery. PW-13 who took up investigation from PW-12 arrested Al at about

10.00 a.m. on 25-1-1989 and when qviestioned, Al gave a statement. Admissible portions of the statement are Exs. P-2 and P-3. In pursuance of

the said statement, A1 took the police party to PW-8 and on being pointed, PW-8 produced MO-13, a nose screw which was seized under a

mahazar attested by witnesses. It is, of course, true that A1 has married the deceased and he could have pledged the said nose screw after it was

handed over to him by the deceased. But, A1 has no such explanation to offer. When questioned on this circusmtance, he did not give any

explanation by stating that the said nose screw was handed over to him by his wife. The absence of any explanation is an additional link in the chain

of circumstances as held by the Supreme Court in Deonandan Mishra Vs. The State of Bihar, .

We are also aware that the statement of Al that he has sold MO-13 to PW-8 is hit by Section 162, Cr. P.C. and will not attract Section 27 of

the Evidence Act. The Supreme Court in Prakash Chand v. State (Delhi Administration) 1979 MLJ) (Cri) 419, held that there is a clear distinction

between the conduct of a person against whom an offence is alleged, which is admissible u/s 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, Cr. P.C.

What is excluded by Section 162, Cr. P.C. is the statement made to a Police Officer in the course of an 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. The evidence of the circumstance, simpliciter that an accused-person led a Police Officer and pointed out the place where stolen

artL-cles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct u/s 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. The above principles squarely apply to the facts of this case.

Further, the Supreme Court in State of Maharashtra Vs. Suresh, , held that when a accused-person points out the place where an incriminating

article is concealed, then there are three possibilities, and they are, (1) he himself would have concealed it, (2) he would have seen somebody else

concealing it, and (3) he would have been told by another person that it was concealed there. But, if the accused declines to tell the criminal Court

that his knowledge about the concealment was on account of one of the last two possibilities, the criminal Court can presume that it was concealed

by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such

concealment and if he chooses to refrain from telling the Courts as to how else he came to know of it, the presumption is a well-justified course to

be adopted; by the criminal Court that the concealment was made by him. Such an interpretation is not inconsistent with the principle embodied in

Section 27 of the Evidence Act.

In this case, though he was specifically asked about his selling MO-13, the nose screw, to PW-8, A1 had no explanation to offer. In fact,

when PW-8 was in the box, it was not even suggested to her that A1 did not sell MO-13 to her. A1 had no explanation to offer and the absence

of explanation is an additional link in the chain of circumstances, as we already held.

On the evidence, we are satisfied that the prosecution has successfully established all the links in the chain of circumstances. The appeal needs

no interference and is, therefore, dismissed.

It is reported that the appellant/A1 is on bail. Hence, the learned Sessions Judge shall take steps to commit him to jail to undergo the remaining

period of sentence.