Govindan v. State rep by Inspector of Police, Jalakandapuram Police Station, Salem District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10-06-2008THE HON'BLE MR.JUSTICE P.D.DINAKARANANDTHE HON'BLE MR.JUSTICE K.N.BASHACRIMINAL APPEAL NO: 1098 OF 2007Govindan.. AppellantvsState rep.by Inspector of Police,Jalakandapuram Police Station,Salem District(Crime No.402 of 2002).. RespondentAppeal filed under Section 374 (2) Cr.P.C against the judgmentdated 17.3.2005 made in S.C.No.61 of 2004 on the file of the learnedI-Additional Sessions Judge, Salem.For appellant:Mr.V.Sairam For respondent :Mr.N.R.Elango,Addl.Public Prosecutor JUDGMENT(Judgement of the Court was delivered by P.D.DINAKARAN,J.,) The appellant was tried in S.C.No. 61 of 2004 on the file of thelearned I-Additional Sessions Judge, Salem and was found guilty,convicted and sentenced to undergo imprisonment for life and also topay a fine of Rs.500/-, in default to undergo rigorous imprisonmentfor six months for the offence under Section 302 IPC, and to undergorigorous imprisonment for five years and also to pay a fine ofRs.250/-, in default to undergo rigorous imprisonment for two monthsfor the offence under Section 201 IPC, ordered to run concurrently.Hence the appellant is before this Court with the present appeal.2. The Inspector of Police, Jalakandapuram laid a charge sheetstating that on 18-19/10/2002 at about 1.00 a.m., at the house of theaccused Govindan of Kottaimedu, Soorapalli Village, due to pettyquarrel with his wife deceased Kannammal and also suspecting herfidelity, kicked her with his leg on her chest and face and also https://hcservices.ecourts.gov.in/hcservices/ strangulated her neck with her Saree and caused fracture of hyoidbone and fracture of right side ribs and thereby the said Kannammaldied of effects of multiple injuries and also caused the evidence ofthe commission of the said offence to disappear by digging a pit atthe western side of the wall of his house and buried the dead body ofhis wife in the said pit and thus, committed the offence punishableunder Section 302 and 201 IPC.3. When the accused was initially questioned with regard to thecharges levelled against him, the accused refuted them and asked fortrial. On behalf of the prosecution P.Ws.1 to 14 were examined andExs.P1 to P.12 were marked, besides M.Os.1 to 5. 4. The case of the prosecution as revealed from the prosecutionwitnesses is as follows:-(a)P.W.1 Madhammal who is the mother of the deceased Kannammalis residing at Kottaimedu within the limits of Jalakandapuram PoliceStation. P.W.2 Rajendran is her son and he is residing with P.W.1.P.W.6 Raja @ Rajamani is residing at Kottaimedu with his wife P.W.5Selvi, daughter of P.W.1 Mathammal, Witnesses Venkatachalam who isthe son of P.W.1 Mathammal, P.W.7 Seerangammal are also residing atKottaimedu. The accused who is the husband of Kannammal belongs toChettipatti Village and after marriage he stayed at Kottaimedu andlived with his wife in a garden house near the house of P.W.1Madhammal and other witnesses. There were frequent quarrels betweenthe deceased Kannammal and the accused Govidnan and also the accusedGovindan suspected the fidelity of his wife Kannammal, which wasanother reason for frequent quarrels between them. This is known tothe witnesses residing nearby the garden house of the accusedGovindan. One month prior to the occurrence, because of the quarrel,the deceased Kannammal came and resided with P.W.1 Madhammal forabout a month. Then the accused came to the house of P.W.1 Madhammaland requested to send her along with him and P.W.1 Madhammal aftergiving due advice to her daughter Kannammal sent her back to thehouse of the accused Govindan and this happened on a Friday. On thenext day, when P.W.1 Madhammal went along the house of the accusedGovindan, she saw the accused Govindan sitting in the pial of thehouse and when asked about her daughter, he told her that she hadgone for Jalakandapuram. Again when in the evening P.W.1 Madhammalwent to see her daughter, she found the door locked and hence shereturned to her house. Again in the morning of Sunday when she wentto the house of her daughter, she found the door locked and theaccused Govindan was also absent. Hence, she searched for herdaughter on that day along with relatives and sons and could not knowabout the whereabouts of her daughter Kannammal. (b)On the next day, i.e., on Monday morning with the use of akey which had been given to her by the daughter of the deceased, sheopened the door and went inside the house and she sensed bad smell https://hcservices.ecourts.gov.in/hcservices/ emanating and also found a new mud plaster near the western wall ofthe house and suspecting that her daughter would have been killed,she came out of the house and raised an alarm. On hearing thealarming sound, P.W.2 Rajendran came there and he also went into thehouse and found the symptoms seen and P.W.1 Madhammal prepared awritten complaint Ex.P.1 and went to Jalakandapuram Police Station atabout 10.30 a.m., and gave the same to the Sub Inspector of Police(P.W.12). On receipt of the complaint, he registered a case in CrimeNo:402/02 under Section 302 and 201 IPC against the accused andprepared printed form of FIR, Ex.P.10 and sent those records to theconcerned authorities. (c) P.W.13, Inspector of Police, who was then put in charge ofJalakandapuram Police Station commenced investigation after obtainingEx.P.10 FIR and went to the scene of occurrence at about 11.00 a.m.,and prepared rough sketch Ex.P.11. Since the body was under buriedcondition, he gave requisition letter Ex.P.9 to P.W.11, Tahsildarfor conducting inquest. On receipt of Ex.P.9 requisition on21.10.2002 at about 3.00 pm., P.W.11, Tahsildar went to theoccurrence house at about 9.00 a.m., observed the surroundings andwith the help of the Village Administrative Officer, exhumed the bodyburied near the south western wall of the house and the body of thelady was brought out. P.W.13, Inspector of Police preparedobservation mahazar Ex.P.5 in the presence of P.W.3 Raja and witnessElango. He also caused taking of Photographs (Ex.P.6 and Ex.P.7series) of the occurrence place and the body. P.W.1, Madhammal, P.W.2Rajendran and others identified the body as that of Kannammal. P.W.11Tahsildar conducted inquest and prepared Inquest Report Ex.P.8 andenquired witnesses and also prepared Exhumation Report Ex.P.9 andsent requisition to Dr.Vallinayagam (P.W.4) to come and conductpostmortem on the spot itself. (d)P.W.4, Dr.Vallinayagam on receiving the requisition of theTahsildar on 21.10.2002 at about 3.00 p.m., went to the spot on22.10.2002 at about 9.00 a.m., and conducted autopsy on the exhumedbody of a lady and after the post-mortem he issued Ex.P.4,Exhumation Report and Post-mortem certificate wherein he noted thefollowing injuries:-"1.Contusion on front and sides of neck 15 x 8 x 3 cmdark red. 2.Fracture of hyoid bone present.3. Fracture of ribs on right side 2 to 9 present andleft side 2 to 8 present.4.Laceration of right lung 3 x 2 x 1 cm and left lung4 x 2 x 1 cm. Right plural cavity contains 60 ml fluidblood and left side 50 ml." (e)In the meanwhile, the Inspector of Police enquired thewitnesses and recorded their statements. On information at about 4.00 https://hcservices.ecourts.gov.in/hcservices/ pm., on the Jalakandapuram-Nagavalli Road, near the GeetharamakrishnaMill Bus Stop, he arrested the accused and enquired him and recordedhis statement in the presence of the VAO and Village Assistant andrecorded his statement and on the basis of the confession statementEx.P.12 given by the accused, he went to the occurrence house atabout 5.00 p.m., and recovered the Spade (M.O.1) and Iron Crowbar(M.O.2) in the presence of the witnesses, which were alleged to havebeen used in connection with the crime. After post-mortem, P.W.10Police Constable recovered M.Os 3 to 5 being Sari, Jacket andPettycoat from the dead body and entrusted them to the PoliceStation. P.W.13 Inspector of Police, who had gone on leave andreturned to duty and on perusal of records and investigation done byP.W.13, laid charge sheet against the accused under Sections 302 and201 IPC. 5. After the conclusion of the prosecution evidence, theappellant was questioned under Section 313 Cr.P.C., with regard tothe incriminating materials adduced by the prosecution against him,for which, the appellant denied complicity of the commission of theoffence stating that he never lived with his wife Kannammal in thehouse where from her dead body was exhumed and he was not at allresiding at Kottaimedu, the place of occurrence, during the relevantperiod as he was working in a quarry at Bangalore. Neither oral, nordocumentary material has been produced on the side of the defence.The learned Sessions Judge after hearing the oral arguments of bothsides, documentary evidence and material objects, convicted andsentenced the appellant as mentioned earlier. Aggrieved against thesame, the present appeal is preferred. 6. Learned counsel for the appellant contended that this casebeing purely based on circumstantial evidence alone, there is no linkto connect the circumstantial evidence and thus the prosecution hasfailed to prove its case beyond all reasonable doubts, particularlywhen the accused has offered sufficient explanation in support of hisdefence of alibi. 7. However, the learned Additional Public Prosecutor, contendedthat the motive as well as the commission of the offence by theaccused has been established beyond all reasonable doubts by theprosecution. He has placed reliance on the oral evidence of theprosecution witnesses and also the medical evidence.8. We have given our careful consideration to the materialevidence available on record and heard the rival submissions of thecounsel appearing on either side. 9. It is the medical evidence that the deceased was strangulatedand the hyoid bone had been found to be fractured, besides fractureof ribs on the right side 2 to 9 and left side ribs 2 to 8. Therewas also contusion on front and sides of neck 15x 8 x 3 cm of dark https://hcservices.ecourts.gov.in/hcservices/ red. P.W.4, the Doctor who conducted the post-mortem also opined thatthe deceased would have died of effects of multiple injuries. Thus,the external and internal injuries found on the body of the deceasedwould amply reveal that it is a homicidal death. 10. Now, the point that arises for consideration in this appealis whether the prosecution has brought home the guilt of the accusedbeyond all reasonable doubts?11. It is a case of uxoricide i.e., husband murdering his wife.The conviction is solely based on the circumstantial evidence. P.W.1is the mother of the deceased. P.W.2 is the brother of the deceased.P.W.6 is the cousin of both the deceased as well as the accused.P.W.7 is an independent witness who corroborates the evidence ofP.W.1. These witnesses speak about the motive. P.W.3 is the VillageAdministrative Officer who speaks about the arrest and recovery ofM.Os 1 and 2. P.W.5 is the Doctor who conducted the autopsy. P.W.8is the mahazar witness to Ex.A.5, Observation Mahazar. P.W.9 is thephotographer who took photographs in the occurrence place. P.W.11 isthe Tahsildar who speaks about the procedures followed while exhumingthe dead body. P.W.13 is the Investigating Officer. 12. The law on the circumstantial evidence is now well settledby the Apex Court in a number of judgments. In Sharad BirdhichandSarda v. State of Maharashtra (1984) 4 SCC 116, the Apex Court hasheld that "while dealing with circumstantial evidence, the onus wason the prosecution to prove that the chain is complete and theinfirmity or lacuna in prosecution cannot be cured by false defenceor plea".13. In Padala Veera Reddy v. State of Andhra Pradesh (1989 Supp(2) SCC 706), the Apex Court has laid down the following tests forconsideration in a case of circumstantial evidence:"(1) the circumstances from which an inference ofguilt is sought to be drawn, must be cogently andfirmly established;(2) those circumstances should be of a definitetendency unerringly pointing towards guilt of theaccused;(3) the circumstances, taken cumulatively, shouldform a chain so complete that there is no escape fromthe conclusion that within all human probability thecrime was committed by the accused and none else; and(4) the circumstantial evidence in order tosustain conviction must be complete and incapable ofexplanation of any other hypothesis than that of theguilt of the accused and such evidence should not onlybe consistent with the guilt of the accused but shouldbe inconsistent with his innocence." https://hcservices.ecourts.gov.in/hcservices/

14. The above judgments were quoted with approval by the ApexCourt in the judgment in Manjunath Chennabasapa Mudalli v. State ofKarnataka (2007) 3 SCC (Crl.) 101. That apart, the Apex Court hasalso held in Sudama Pandey v. State of Bihar (2002 SCC (Crl.) 239that the prosecution must establish its case without any missing link.15. Keeping the above law laid down by the Apex Court in mind,we will have to analyse the circumstances put against the accused inthe case on hand. 16. For every crime, there must be some motive and particularlywhen the case is based on circumstantial evidence, the motive aspectgets importance and the motive for the crime must be clearlyestablished by the prosecution. Though there is no reference in theFIR as to the suspicion of fidelity of the deceased wife by theaccused husband, P.W.1 Madhammal and P.W.2 Rajendran have clearlydeposed that there were frequent domestic quarrels between theaccused and the deceased and the deceased would used to report themthat the accused insisted her to give money for taking drinks andwhenever he consumes drinks he would beat her. P.W.6 alsocorroborates this version. That apart, P.W.1 has deposed in herevidence that her daughter was working in a coconut mundi and if shewould come late, the accused would suspect her fidelity and wouldquarrel with her. Further, on behalf of the accused it was suggestedto the prosecution witnesses that the deceased had illicit intimacywith one Arumugam, which itself goes to show that the motive part ofthe prosecution case has been accepted by the accused himself. 17.1 Secondly, to disprove the theory of alibi, we have to lookinto the evidence of the prosecution witnesses, particularly P.W.1,mother of the deceased, to decide whether the accused was present onthe date of occurrence. According to P.W.1 Madhammal, mother of thedeceased, after marriage, the accused and her daughter Kannammal wereresiding in Sedampatti which is the village of the accused Govindan,and some time later they came to Kottaimedu and her son Vankatachalamgave some place in his land for constructing a house for them and athatched house was constructed there in which they were residing. 17.2. P.W.1 further deposed that her daughter Kannammal went tococonut Mundi for cooly work but the accused Govindan did not go forany work, that there were frequent quarrels between them and herdaughter used to complain that the accused was insisting her to givemoney for drinks and after taking drinks he would beat her, that onemonth prior to the occurrence her daughter Kannammal came to herhouse and stayed along with them and at the end of the month theaccused came and wanted to take his wife Kannammal and she advisedthem to live without any quarrel and the accused took Kannammal alongwith him on a Friday and on that day itself she saw the accusedpicking up quarrel with the deceased in a drunken mood, and hence she https://hcservices.ecourts.gov.in/hcservices/ reprimanded him saying that inspite of her advice to live happilythey were picking up quarrel and she pacified them.17.3. She further deposed that on the next day i.e., on Saturdaywhen she came near the house of the daughter Kannammal the accusedwas sitting in the pial and when she asked about her daughter hetold her that she had gone for Jalakandapuram and when in theevening she again went she saw the house locked and she returned backand on the next day also she saw the house of her daughter locked andthen she searched for her daughter along with her relatives, and itis usual for her to take meals sometime in the house of her daughterand hence she was having one key of the house along with her and onMonday morning she using that key, opened the door of the house andwhen she went inside the house, she smelt bad odour and near the endof the western wall, she saw newly pasted mud with some cracks on itand on entertaining doubt she came out and shouted and hearing hersound P.W.2 and other came there and later she gave the complaint.17.4. P.Ws.2, 5 and 6 have corroborated the evidence of P.W.1,Madhammal that the accused Govindan and the deceased Kannammal livedin a thatched house and there were frequent quarrels between them. Noulterior motive could be attributed to them. P.W.7, a nearbyresident, who is an independent witness has also deposed in supportof the prosecution case. Hence it is clear that at the time ofoccurrence the accused was living with his wife Kannammal in theabove mentioned house. 17.5 It is well settled law that mere explanation is notsufficient and it must be proved by preponderance of probabilities byleading evidence. Therefore, the defence of alibi has been rightlynegatived by the trial court itself holding that the prosecutionwitnesses speak about the presence of the accused along with his wifein his house at the time of occurrence and further the accused didnot make any attempt to examine any witness to support the defence ofalibi, except offering an explanation. 17.6 Therefore the explanation offered by the accused is foundto be wrong, as the burden is still heavy on the accused to provethat he was not involved in the offence. Our above view is fortifiedby the judgment of the Supreme Court in Trimukh Maroti Kirkan v.State of Maharashtra (2007) 1 SCC (Crl.) 80), wherein it has beenheld by the Supreme Court that if the accused fails to offer anycogent explanation or offers an explanation which is untrue, then itcan be treated as an additional link in the chain of circumstanceagainst the accused to make it complete. Again in State of Rajasthanv. Kashi Ram (2007) 1 SCC (Crl.) 688), the Supreme Court has heldthat the failure of the accused to give satisfactory explanation toan incriminating circumstance which was within his special knowledgeamounts to failure to discharge the onus which lies on accused andthat itself provides an additional link in the chain of circumstances https://hcservices.ecourts.gov.in/hcservices/ proved against the accused.17.7 It is the evidence of P.W.13, Inspector of Police that onreceipt of information on 22.10.2002 at about 4.00 pm., nearGeetharamakrishna Mill Bus Stop in Jalakandapuram-Nangavalli Road, hearrested the accused in the presence of VAO and one Sithayyan andenquired and recorded his statement and based on his confession, herecovered the crowbar and spade at about 5.15 pm., which were usedfor burying the dead body, under Ex.P.2 seizure mahazar. P.W.3 VAOhas deposed that the body of the deceased which was buried in herhouse was exhumed by the Tahsildar, the Police Officials andwitnesses. There is no necessity for the VAO to falsely implicatethe accused and to support the case of the prosecution. 17.8 It has been clearly established that the accused Govindanand the deceased Kannammal were residing in the occurrence house atthe time when the occurrence took place. They had no children. It isnot the case of the prosecution or the defence that some third personwas living with them. So only they two were living in the house. Thedead body of the deceased Kannammal was found buried inside the housewhere the accused and deceased Kannammal were residing there. P.W.1has last seen the deceased in the company of the accused on Fridayi.e., two days prior to the exhumation of the body. After exhumingthe body in the presence of witnesses, P.W.1 mother of the deceasedidentified the body as that of her daughter Kannammal. In such acircumstance, it is for the accused to explain as to how the body ofKannammal was buried inside the house where only they two wereliving. Ordinarily, if the wife was found missing, the husband wouldsearch for her. However, in this case, the husband absconded till hisarrest by the police. Therefore, it is for the husband to offerexplanation as to how the dead body of his wife came to be buried inhis locked house. Lack of such explanation on the part of theappellant itself would be a circumstantial evidence against him.Since no explanation being offered in this regard, it is a strongcircumstance against the accused by drawing adverse inference againsthim and in favour of the prosecution case. Therefore, the totaldenial by the accused of his involvement in the commission of offenceis not sustainable. 18. Ultimately, Learned counsel for the appellant, whilereferring to the cross examination of P.W.4, Doctor, who conductedthe post-mortem, would submit that even before exhuming the body,the name of the deceased as Kannammal has been mentioned in Ex.P.3autopsy requisition letter sent to him by the Tahsildar. But aperusal of Ex.P.3 would show that the name of Kannammal does not finda place and it has been mentioned only as "exhumation of the deadfemale murdered and buried". However, the name of Kannammal finds aplace in the requisition sent by the Inspector of Police to theTahsildar. Even then, taking into consideration the factualbackground of the case viz., frequent quarrels between the accused https://hcservices.ecourts.gov.in/hcservices/ and the deceased over demand of money and on suspicion of herfidelity; both the accused and the deceased were last seen by P.W.1;subsequent missing of the deceased for two days; and on the thirdday, when she opened the locked door in search of her, found freshmud paste and sensed bad smell; are all sufficient for P.W.1, motherof the deceased, to suspect that it is her daughter who might havebeen killed and buried in that place by the accused. That is why shehas mentioned even in her complaint about the murder and burial ofher daughter by the accused. After exhuming the female dead body, sheidentified the body as that of her daughter. Therefore the mentioningof the name in the requisition letter even before exhumation of thedead body cannot be found fault with in the present case. Therefore,this argument of the learned counsel for the appellant cannot besustained. 19. Therefore, we are of the opinion that the prosecution hasestablished beyond all reasonable doubts that the accused and thedeceased were living together on the date of occurrence, there werefrequent quarrels between them, which is spoken to by the neighboursand prosecution witnesses; P.W.1, mother of the deceased has lastseen the deceased in the company of the accused; thereafter she wasnot seen and missing for two days; after making hectic efforts insearch of her daughter on the previous day with the help of herrelatives, on 21.10.2002 when P.W.1 went inside the house afterunlocking the door, found new mud paste with cracks and sensed foulsmell; then on suspicion gave complaint; after exhuming the body inthe presence of Tahsildar and Police officials, P.W.1identified asthat of her daughter; the next day the accused was arrested and basedon the confession statement, the Spade and Crowbar used for buryingthe dead body were recorded. Therefore, the prosecution has provedeach and every link in a complete manner so as to complete the chainof circumstance. Thus, all the circumstances narrated above, puttogether, would lead to the inference that the it is only the accusedwho committed the offence without giving room to any otherhypothesis. Therefore, we have no reason to differ with the findingsof the learned Trial Judge. 20. We, therefore, are of the opinion that no case has been madeout for interference with the impugned judgment. Considering theheinous nature of the crime, we are not inclined to reduce thesentence. The appeal fails and is dismissed accordingly. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ gkvTo1. The I Additional Sessions Judge, Salem.2. -do- thru' the Principal Sessions Judge, Salem.3. The Judicial Magistrate No.II, Mettur Dam.4. -do- thru' the Chief Judicial Magistrate, Salem.5. The Superintendent, Central Prison, Coimbatore. 6. The Public Prosecutor, High Court, Madras7. The District Collector, Salem8. The Director General of Police, Chennai9.The Inspector of Police, Jalakandapuram Police Station.1 CC To Mr.V.Sairam , Advocate, SR NO.27875 Judgment in Crl.A.No.1098 of 2007ssv(co)pmk/3.7.08