Kumar v. State

Telephone Exchange for the month of August 2003, P.W.15, Selladurai, anemployee of Yercaud Telephone Exchange, had issued Ex.P.12 reportstating that the said telephone belongs to Thiruselvam and the same wasworking in a good condition between 5.8.2003 and 31.8.2003. Ex.P13 isthe computerised bill for the telephone No.222612 of Yercaud TelephoneExchange.3.15. As directed by the Chief Judicial Magistrate, Salem, P.W.15,Judicial Magistrate II, Salem, recorded a statement under Section 164Cr.P.C. as deposed by P.W.2 on 25.8.2003. The said statement is markedas Ex.P.14.3.16. P.W.16, Ettiyappan, Scientific Officer, has deposed that heinspected the scene of occurrence on 16.8.2003 at 7 am. He saw theburnt bodies of the deceased and her child in the hall. 3.17. P.W.17, Revenue Divisional Officer, on receipt of FIR,conducted inquest over the dead bodies and submitted his report Ex.P17.He sent the body for post mortem through P.W.25, Head Constable. Healso sent a report, Ex.P16 to the Judicial Magistrate stating that thedeath of the deceased and her child was not due to dowry harassment andfor further action.3.18. The Village Administrative Officer, P.W.18, on hearing thatthe house of Krishnan caught fire, at about 2.15 pm, went along with oneDuraisamy, Village Assistant to the place of occurrence. He peepedinside through the glass window, which seems to be broken due to theheat, and saw the room with full smoke. When he touched the front sidedoor to go inside the house, it opened immediately since it was notlatched inside. In the middle portion of the house, he saw two deadbodies in burnt condition and he smelt kerosene odour through out thehouse. He informed about the occurrence to his higher officials. Inhis presence, P.W.30, Deputy Superintendent of Police, preparedobservation mahazar, rough sketch and recovery mahazar and he hadattested his signature in those documents. He also issued Ex.P21Nativity Certificate with regard to the deceased family.3.19. P.W.19, Dr.Ravi Shankar, attached to Mohan KumaramangalamMedical College, Salem deposed that he examined the hyoid bone of thedeceased and found no fracture. Ex.P.22 is the report given by him.3.20. As per requisition Ex.P23 made by P.W.31, P.W.20,Dr.Vallinayagam, attached to Government Mohan Kumaramangalam MedicalCollege, examined the accused, found a lacerated injury on the leftcollar bone 0.5 cm and issued Ex.P25, wound certificate. In hisevidence, he deposed that the said injury might be caused due to fingernail scratch. As per requisition Ex.P24 made by the Judicial MagistrateV, Salem, he examined the accused and opined that there is nothing to https://hcservices.ecourts.gov.in/hcservices/ suggest that he is impotent and issued Ex.P26.3.21. P.W.21, Magisterial Clerk, speaks about the receipt ofmaterial objects and sending the same for chemical analysis. Ex.P27 isthe covering letter of the Court and Ex.P28 is the chemical analysisreport.3.22. P.W.22 is the Judicial Magistrate V, Salem, who remanded theaccused to judicial custody on the requisition made by P.W.31.3.23. As per the requisition Ex.P30 made by P.W.31 through theChief Judicial Magistrate, Salem, P.W.23, Judicial Magistrate VI, Salemrecorded statements of P.Ws.3, 5, 6, 7 and 8 and others under Section164 Cr.P.C. Exs.P31 to P43 are the said statements. 3.24. The Doctor, P.W.24, on receipt of requisitions, Exs.P44 andP45, by P.W.17 for post mortem of the bodies of the deceased and herchild, conducted post mortem and issued certificates Exs.P46 and P47opining that the deceased appears to have died of shock following headinjury and shock following burns and her child appears to have died ofburns shock.3.25. P.W.25, Head Constable, deposed that he took the bodies forpost mortem to Government Hospital, Yercaud and entrusted the bodies totheir relatives after autopsy. 3.26. As directed by P.W.31, P.W.26, Photographer, took photos atthe scene of occurrence. Exs.P48 series are photos and Ex.P49 seriesare their negatives.3.27. P.W.27, Sub Inspector of Police, on receipt of information,went to the place of occurrence at 3 pm. He saw the burnt bodies of thedeceased and her child, surrounded by lot of people. Around 8 pm, P.W.1gave a written complaint, Ex.P1 and registered the FIR, Ex.P50, in CrimeNo.350 of 2003 for the offence under Sections 304-B and 498-A, IPC.F.I.R. was sent to the Revenue Divisional Officer, P.W.17, as well as tothe Deputy Superintendent of Police, P.W.30, for further action, sincethe occurrence took place within two years from the date of marriage ofthe deceased.3.28. As per Ex.P51, requisition made by P.W.31, P.W.28, DistrictRevenue Officer, examined the accused and recorded Ex.P52 confessionstatement in video through P.W.29 Police Videographer. Ex.P57 is thevideo cassette.3.29. The Videographer, who was examined as P.W.29, deposed that oninstructions from P.W.31, he took video at the time of enquiry and tookphoto of the accused, before recording the video. Ex.P55 is the photoof the accused. Ex.P56 is the negative. Ex.P57 is the video cassette. https://hcservices.ecourts.gov.in/hcservices/ Print of Ex.P57 is Ex.P58.3.30. P.W.30, the Deputy Superintendent of Police, deposed that onreceipt of Ex.P50, F.I.R, he went to the place of occurrence, along withScientific Officer, P.W.16 and obtained his opinion. He prepared anObservation Mahazar, Ex.P18 and a Rough Sketch, Ex.P59. He causedphotographs of the dead bodies, Ex.P55 series, through P.W.26,photographer. He recovered M.Os.1, 4 to 10 under Mahazar, Ex.P19, inthe presence of P.W.18, Village Administrative Officer and his menial.He also examined the witnesses and recorded their statements. Aftergetting opinion from the doctors who conducted autopsy, he altered thecharges under Section 302 and 376, IPC and sent the altered FIR, Ex.P60,to the Judicial Magistrate.3.31. P.W.31, the Superintendent of Police, Salem, in his evidence,narrated the investigation undertook by him. According to him, he wentto the scene of occurrence and examined P.Ws.2 and 4 and the relativesof the deceased orally. On 20.8.2003 at about 12.30 p.m. the Inspectorof Police arrested the accused and produced him before P.W.31 at 1.30p.m. P.W.31 examined the accused and found a finger nail scratch on theleft side of his collar-bone, for which, he got medico legal opinionthrough P.W.20. He recorded the confession statement given by theaccused in the presence of Sellam and Palanisamy in writing and throughP.W.29, Police Videographer. On 21.8.2003, at 7.00 a.m. he recoveredthe wood used for preparing rotis along with poori kattai, M.O.11, fullhand white colour shirt, pant and brief on being produced by the accusedfrom kitchen in the presence of witnesses. He also seized indane gascylinder, regulator, gas tube and double door in the presence of Selvamand Palanisamy. He remanded the accused to police custody. On22.8.2003, he examined Sukumar, Inspector and recorded his statement.On 23.8.2003, he examined P.W.3 and recorded her statement. On24.8.2003, he examined P.Ws.6,7, 8 and 12 and others and recorded theirstatements. On 25.8.2003, he examined the prisoners viz., Krishnan @Venkatachalam, Sellammal and Thiruselvam, who are father, mother andbrother of the accused respectively, and recorded their confessionstatements. He examined P.W.18 and got residential proof of thedeceased family. He examined father, mother and brother of P.W.3 Selviand recorded their statements. He also examined P.W.2 and recorded herstatement through video. On 1.9.2003, he sent the accused to judicialcustody. On 2.9.2003, he examined P.W.22, Judicial Magistrate andrecorded his statement. On 10.9.2003, he examined P.W.20,Dr.Vallinayagam and recorded his statement. He sent M.O.15 brief to theCourt for chemical examination through Ex.P.61 requisition. Thereafter,he sent Ex.P30 requisition for recording statements of the witnessesunder Section 164 Cr.P.C. On 18.9.2003, he sent the material objects tothe Court for subjecting the same to chemical analysis. On 16.10.2003,he examined post-mortem doctors and recorded their statements. He alsoenquired P.W.14, Telephone Subdivisional Engineer with regard to theworking condition of the telephone No.222612. He also examined P.W.1, https://hcservices.ecourts.gov.in/hcservices/ Thangavel, brother of P.W.1 and P.W.3 and recorded their statements. Healso examined P.W.7 Shanmugam in respect of the electrical goods sold tothe accused and seized the credit bill and recorded his statement. Healso recovered the telephone bill for the month of September forTelephone No.222032. After completing the investigation, he filed acharge sheet against the accused under Sections 506(i), 376 and 302 readwith 201 (2 counts) IPC and also filed a separate charge sheet againstThiruselvam, accused, Krishnan @ Venkatachalam and Selvam under Section498(A) I.P.C.3.32. The case was committed to the Court of Sessions and chargeswere framed and since the accused denied his complicity in the offence,the case was taken up for trial. In order to substantiate the chargeslevelled against the accused, the prosecution examined P.Ws.1 to 31,filed exhibits P1 to P66 and marked material objects M.Os.1 to 20. 3.33. On completion of the examination of the prosecution witnesses,the accused was questioned under Section 313, Cr.P.C. on theincriminating materials for which the accused denied any complicity inthe offence committed and claimed innocence. On the side of defence,D.Ws.1 to 4 were examined and Exs.D1 to D11 were filed.3.34. D.W.1 is a Court Clerk who stated that the F.I.R. in the casewas received by the court on 18.08.2003. 3.35. D.W.2, sister of the accused, deposed that the deceasedcalled her on 13.3.2008 and stated that when she went to her brother'shouse for asking Rs.10,000/-, her brother and her sister-in-law refusedto give money and sent her out of their house forcibly. She furtherstated that at about 9 am on the date of occurrence, the deceased calledher over phone and stated that she does not like to live due to thedistress caused by the scolding of her brother and sister-in-law. 3.35. D.W.3, Manger of Indian Bank, Mechery Branch, deposed thatthe accused came to the bank on 20.8.2003, the accused came to the Bankbetween 10 am to 2pm and redeemed the jewels pledged in the Bank.3.36. D.W.4, who was working as the Sub Divisional Engineer (Legal),BSNL, deposed that no outgoing STD call was made from telephoneNo.222032 in August, 2003, as per the magnetic tape maintained by theExchange for registering all the STD outgoing. 3.37. The Court examined one Francis as C.W.1, who deposed that onhearing noise from the house of the deceased, he saw the smoke emanatingfrom the house of the deceased. He went to the house of the deceasedand saw the window glass broken due to the heat and since some peoplewere standing in front of the house, he climbed up the roof of the house https://hcservices.ecourts.gov.in/hcservices/ and removed the tiles in order to enter into the house and saw thebodies of the deceased and her child in the hall. IV – VERDICT OF THE TRIAL COURT4. The learned I Additional Sessions Judge, Salem, upon appreciationof the evidence and hearing both sides, convicted and sentenced theaccused as aforementioned. Hence, the above appeal.V – CONTENTIONS OF THE APPELLANT5. Mr.K.V.Sreedharan, learned counsel for the appellant,challenges the order of conviction and sentence as follows:(a) The statement of P.W.2 made to the DeputySuperintendent of Police, P.W.30, when she was examined on17.8.2003, about the extra judicial confession made to herby the appellant, threatening her and making her to call tothe brother of the deceased, P.W.1, cannot be relied, as,she had not disclosed the same to P.W.17, RevenueDivisional Officer, when she was examined initially on16.8.2003 and her statement was recorded as Ex.D7.(b) The case of the prosecution rests upon the complaintEx.P1 given by P.W.1. In the said complaint, P.W.1 had notuttered anything about the conduct of the accused towardsthe deceased. But, P.W.1 had chosen to come with a newcase that the accused had ill-intention towards thedeceased and the same was complained by the deceased to hersister-in-law, P.W.3. Therefore, the subsequent standtaken by P.W.1 is not sustainable. (c) Similarly, P.W.3, when she was examined on 16.8.2003 byP.W.17, Revenue Divisional Officer, had not stated anythingabout the conduct of the accused. But, when she wasenquired after two months, she had stated that on seeingthe article in the newspaper that the death of the deceasedis not suicide, but homicide, recalled the statement madeby the deceased to her 15 days prior to the date ofoccurrence. Therefore, the said delay of two months wouldmake the evidence of P.W.3 also, unreliable.(d) Further, P.Ws.4 to 8, who spoke about the movement ofthe accused on the date of occurrence, are not reliablewitnesses, as they were examined after a period of 10/15days. https://hcservices.ecourts.gov.in/hcservices/ (e) The carbon particles found deposited more in thekitchen, than in the hall, would prove that the deceasedhad committed suicide along with her child, as it issupported with the fact that the tiles in the kitchen alonewere removed and also by the evidence of P.W.1 who hadstated that the deceased called him and stated that shewould commit suicide if he did not reach her place withinone hour with money. Therefore, there is a possibilitythat the people who entered the house, after gaining theentry, would have removed the body to the hall, andaccordingly, the deceased had committed suicide only andthe offence under Section 302, IPC is not made out. (f) From the statement of D.W.2, sister of the accused,that two days prior to the date of occurrence, the deceasedcalled her over phone and informed that her brother refusedto give money and scolded her and on the morning of thedate of occurrence, she informed that she was very muchdejected and she did not want to live, it can be clearlyelucidated that the deceased had only committed suicide. (g) Alternatively, since the death of the deceased and herchild was due to burn injuries and the accused has nomotive to commit the murder of the deceased and her child,it can be assumed that the accused wanted only to screenthe offence. Therefore, the offence under Section 302, IPCis not made out.(h) Finally, the offence under Sections 376, 302 (2 counts)and 302 read with 201, IPC has not been proved with medicalevidence and beyond any reasonable doubt and therefore,conviction and sentence have to be set aside.VI – RESISTANCE BY THE STATE6. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor,rebutting the contentions of the learned counsel for the appellant,submits as under:(a) P.W.2 was examined by P.W.17, Revenue DivisionalOfficer on 16.8.2003. But, in her statement made toP.W.30, Deputy Superintendent of Police, she had statedabout the extra judicial confession made to her by theaccused and the threat caused by the accused that he woulddo away with her in the same manner like the deceased ifshe reveals the same to anyone and also made her toimpersonate as the deceased over phone to P.W.1. The abovefact would make it clear that due to the fear by the https://hcservices.ecourts.gov.in/hcservices/ threatening of the accused, P.W.2 would not have informedP.W.17 on the earlier day. Therefore, the same would notmake her evidence unreliable, as she is the only witnesswho saw the deceased and her child in the kitchen beforethey were burnt and in the hall after they were burnt.(b) P.W.1 was informed by P.W.3 about the conduct of theaccused towards the deceased only after the publication ofarticle in the newspaper that the death of the deceased isnot by suicide, but homicide. Had P.W.1 known the factbefore itself, he would have stated it in his complaintEx.P1 itself. Further, since he received a call at about2.00 pm on the date of occurrence from P.W.2, whoimpersonated as the deceased, P.W.1 had the suspicion thatshe would have committed suicide due to dowry harassment.After coming to know about the conduct of the accused,P.W.1 stated the same to P.W.31, Superintendent of Police.Therefore, the evidence of P.W.1 cannot be stated asuntrustworthy. (c) P.W.3 was of the opinion that the death of the deceasedand her child was due to dowry harassment and she had nodoubt that it was homicide. On seeing the article in thenewspaper that the death was homicide, she recalled aboutthe statement made by the deceased with regard to theconduct of the accused 15 days prior to the date of theoccurrence. The same, however, would not render theevidence of P.W.3 undependable on the ground that it wasgiven after two months.(d) P.Ws.4 to 8 speak about the movement of the accusedjust prior to the occurrence and immediately after theoccurrence and at the place of the occurrence. The delayin obtaining their evidence was due to the fact that thecase was initially registered for the offence under Section304-B and 498-A, IPC and only later, it was registered forthe offence under Sections 376, 302, 302 read with 201,IPC. Moreover, they are not eye witnesses to theoccurrence. Further, the Investigation Officer was notcross examined with respect to the delay in examining thosewitnesses. Therefore, the delay in examining P.Ws.4 to 8would not make their evidence unbelievable. (e) As per the evidence of C.W.1, who removed the tiles ofthe house of the deceased, the bodies of the deceased andher child were found in the hall only. This isstrengthened with the statement of P.W.2, who witnessed thebodies in the kitchen before they were burnt and in the https://hcservices.ecourts.gov.in/hcservices/ hall, after they were burnt. Even though the carbonparticles were found deposited in the kitchen, the samewould not change the nature of offence, because, P.W.16,Scientific Officer and P.W.24, Doctor, who conductedautopsy, were of the opinion that it was not suicide sincethe hair in the crown and back of the head, back side ofthe body and soles were not burnt. Therefore, the offenceunder Section 302, IPC is made out.(f) If the statement of D.W.2 is true that the deceasedinformed her that she was very much depressed on themorning of 15.8.2003, viz. date of occurrence andtherefore, she did not want to live, naturally D.W.2 shouldhave informed the same to her brother and parents. Failureto do the same would make it clear that D.W.2 would havealso joined along with her brother in demanding money andtherefore, the contention that the deceased had committedsuicide has to be rejected.(g) P.W.2 had deposed about the extra judicial confessionmade by the accused that he had an eye over the accused andsince the deceased refused to heed his wish, he hit thedeceased on her head and when the deceased fellunconscious, the accused committed the offence underSection 376, IPC. P.W.2 also witnessed the deceased andher child lying in the kitchen before being burnt and inthe hall after they were burnt. This would prove themotive of the accused and clearly establishes the offenceunder Section 302, IPC. (h) The offence under Section 376, IPC is proved by theevidence of P.W.2 wherein she had stated about the extrajudicial confession made by the accused, which corroborateswith Ex.P25, the certificate issued by P.W.20, Doctor whoexamined the accused and certified that there was a simpleinjury which might be due to a finger nail scratch and theevidence of P.W.11, Kamalatchi Krishnamoorthy, ScientificOfficer, who examined M.O.15, brief, and detected semen init as per Ex.P8, Chemical Report. (h) In support of his contention that the evidence ofP.W.3 with regard to the statement made by the deceased toher about the conduct of the accused is admissible, thelearned Additional Public Prosecutor places reliance on thefollowing decisions:(i) Narayana Swami v. Emperor [AIR 1939 P.C. 47]; and https://hcservices.ecourts.gov.in/hcservices/ (ii)Sharad Birdhichand Sarda v. State of Maharashtra,1984 SCC (Cri) 487].VII (A) - CONSIDERATION7.1. We have given careful consideration to the submissions of bothsides. We have also perused the entire materials on record.7.2. Before proceeding further, it is apt to refer the law laiddown and the tests to be adopted for placing reliance on the extrajudicial confession and the circumstantial evidence.VII (B) – LAW ON THE RELIABILITYOF EXTRA JUDICIAL CONFESSION8.1. The prosecution mainly depends on the extra judicial confessionof the accused made to by P.W.2, neighbour and P.W.28, District RevenueOfficer. The law is well settled as to what extent extra judicialconfession can be relied on.8.2. An extra-judicial confession can be relied upon by the court,if the same is voluntary and true and made in a fit state of mind.However, the confession will have to be proved like any other fact. Thevalue of the evidence as to confession, like any other evidence, dependsupon the veracity of the witness to whom it has been made. The value ofthe evidence as to the confession depends on the reliability of thewitness who gives the evidence. It is not open to any court to startwith a presumption that extra-judicial confession is a weak type ofevidence. It would depend on the nature of the circumstances, the timewhen the confession was made and the credibility of the witnesses whospeak to such a confession. Such a confession can be relied upon andconviction can be founded thereon if the evidence about the confessioncomes from the mouth of witnesses who appear to be unbiased, not evenremotely inimical to the accused, and in respect of whom nothing isbrought out which may tend to indicate that he may have a motive ofattributing an untruthful statement to the accused, the words spoken toby the witness are clear, unambiguous and unmistakably convey that theaccused is the perpetrator of the crime and nothing is omitted by thewitness which may militate against it. After subjecting the evidence ofthe witness to a rigorous test on the touchstone of credibility, theextra-judicial confession can be accepted and can be the basis of aconviction if it passes the test of credibility, vide State of Rajasthanv. Raja Ram [2003 SCC Crl. 1965].8.3. Accordingly, we shall examine whether the extra judicialconfession of the accused satisfies the three tests, viz. (i) to whom the said extra judicial confession is made?; https://hcservices.ecourts.gov.in/hcservices/ (ii) whether the evidence of the person to whom the extrajudicial confession is made inspires the confidence of theCourt?; and (iii)whether the extra judicial confession is consistent tothe prosecution case? 8.4. In the case on hand, (i) The extra judicial confession was made by the accusedto P.W.2, neighbour and P.W.28, District Revenue Officer.(ii) The accused had taken kerosene from P.W.2, neighbourstating that it was required for cleaning the machine.Thereafter, when P.W.2 came out of her house, she wascalled by the accused to his house, where she witnessed thedeceased and her child lying unconscious in the kitchen.When she questioned the accused, he confessed to her aboutthe occurrence and thereafter, made her to speak to P.W.1impersonating the deceased, by threatening her. She is theonly witness who saw the deceased and her child in thekitchen before being burnt and in the hall, after they wereburnt. Moreover, the accused has confessed to her abouthis commission of offence under Section 376, IPCimmediately and wanted to simulate as if the deceasedcommitted suicide. The evidence of P.W.2 is natural andinspires the confidence of the Court, since the same isexactly in consonance with the confession made by theaccused to P.W.28, District Revenue Officer. Therefore,we are convinced with the credibility of the evidence andaccordingly, the extra judicial confession meritsacceptance.(iii) The extra judicial confession made by the accused, asspoken to by P.W.2 which is in consonance with theconfession made by the accused to P.W.28, is consistentwith the case of the prosecution. 8.5. We are, therefore, satisfied that the evidence of P.W.2 has been convincing, consistent and plausible and stands to thethree tests cited above and hence, there is no room to doubt the saidextra judicial confession.VII (C) – LAW ON CIRCUMSTANTIAL EVIDENCE9.1. On the circumstantial evidence, the Apex Court in Liyakat v.State of Uttaranchal [2008 AIR SCW 1678] held as under: https://hcservices.ecourts.gov.in/hcservices/ "13. Before analysing the factual aspects it may be statedthat for a crime to be proved it is not necessary that thecrime must be seen to have been committed and must, in allcircumstances be proved by direct ocular evidence byexamining before the court those persons who had seen itscommission. The offence can be proved by circumstantialevidence also. The principal fact or factum probandum maybe proved indirectly by means of certain inferences drawnfrom factum probans, that is, the evidentiary facts. To putit differently, circumstantial evidence is not direct tothe point in issue but consists of evidence of variousother facts which are so closely associated with the factin issue that taken together they form a chain ofcircumstances from which the existence of the principalfact can be legally inferred or presumed. 14. It has been consistently laid down by this Court thatwhere a case rests squarely on circumstantial evidence, theinference of guilt can be justified only when all theincriminating facts and circumstances are found to beincompatible with the innocence of the accused or the guiltof any other person. (See Hukam Singh v. State of Rajasthan(1977)2 SCC 99), Eradu v. State of Hyderabad (AIR 1956 SC316), Earabhadrappa v. State of Karnataka [(1983) 2 SCC330], State of U.P. v. Sukhbasi [AIR 1985 SC 1224],Balwinder Singh v. State of Punjab[AIR 1987 SC 350] andAshok Kumar Chatterjee v. State of M.P. [AIR 1989 SC 1890].The circumstances from which an inference as to the guiltof the accused is drawn have to be proved beyond reasonabledoubt and have to be shown to be closely connected with theprincipal fact sought to be inferred from thosecircumstances. In Bhagat Ram v. State of Punjab [AIR 1954SC 621] it was laid down that where the case depends uponthe conclusion drawn from circumstances the cumulativeeffect of the circumstances must be as to negative theinnocence of the accused and bring the offences home beyondany reasonable doubt. 15. We may also make a reference to a decision of thisCourt in C. Chenga Reddy v. State of A.P. [1996 (10) SCC193] wherein it has been observed thus: (SCC pp. 206-07,para 21) "21. In a case based on circumstantial evidence, thesettled law is that the circumstances from which theconclusion of guilt is drawn should be fully proved andsuch circumstances must be conclusive in nature. https://hcservices.ecourts.gov.in/hcservices/ Moreover, all the circumstances should be complete andthere should be no gap left in the chain of evidence.Further, the proved circumstances must be consistentonly with the hypothesis of the guilt of the accusedand totally inconsistent with his innocence." 16. In Padala Veera Reddy v. State of A.P. [AIR 1990 SC 79]it was laid down that when a case rests upon circumstantialevidence, such evidence must satisfy the following tests:(SCC pp. 710-11, para 10): "(1) the circumstances from which an inference of guiltis sought to be drawn, must be cogently and firmlyestablished; (2) those circumstances should be of a definitetendency unerringly pointing towards guilt of theaccused; (3) the circumstances, taken cumulatively, should forma chain so complete that there is no escape from theconclusion that within all human probability the crimewas committed by the accused and none else; and (4) the circumstantial evidence in order to sustainconviction 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." 17. In State of U.P. v. Ashok Kumar Srivastavaii [1992(2)SCC 86] it was pointed out that great care must be taken inevaluating circumstantial evidence and if the evidencerelied on is reasonably capable of two inferences, the onein favour of the accused must be accepted. It was alsopointed out that the circumstances relied upon must befound to have been fully established and the cumulativeeffect of all the facts so established must be consistentonly with the hypothesis of guilt. 18. Sir Alfred Wills in his admirable book Wills'Circumstantial Evidence (Chapter VI) lays down thefollowing rules specially to be observed in the case ofcircumstantial evidence: "(1) the facts alleged as the basis of any legal inferencemust be clearly proved and beyond reasonable doubtconnected with the factum probandum; https://hcservices.ecourts.gov.in/hcservices/ (2) the burden of proof is always on the party whoasserts the existence of any fact, which infers legalaccountability; (3) in all cases, whether of direct orcircumstantial evidence the best evidence must beadduced which the nature of the case admits; (4) in order to justify the inference of guilt, theinculpatory facts must be incompatible with theinnocence of the accused and incapable of explanation,upon any other reasonable hypothesis than that of hisguilt; and (5) if there be any reasonable doubt of the guilt ofthe accused, he is entitled as of right to beacquitted." 19. There is no doubt that conviction can be based solelyon circumstantial evidence but it should be tested on thetouchstone of law relating to circumstantial evidence laiddown by this Court as far back as in 1952. 20. In Hanumant Govind Nargundkar v. State of M.P. [AIR1952 SC 343] it was observed thus: (AIR pp. 345-46, para10) "It is well to remember that in cases where theevidence is of a circumstantial nature, thecircumstances from which the conclusion of guilt is tobe drawn should in the first instance be fullyestablished, and all the facts so established should beconsistent only with the hypothesis of the guilt of theaccused. Again, the circumstances should be of aconclusive nature and tendency and they should be suchas to exclude every hypothesis but the one proposed tobe proved. In other words, there must be a chain ofevidence so far complete as not to leave any reasonableground for a conclusion consistent with the innocenceof the accused and it must be such as to show thatwithin all human probability the act must have beendone by the accused." 21. A reference may be made to a later decision in SharadBirdhichand Sarda v. State of Maharashtra [AIR 1984 SC1622]. Therein, while dealing with circumstantial evidence,it has been held that the onus was on the prosecution toprove that the chain is complete and the infirmity oflacuna in prosecution cannot be cured by false defence orplea. The conditions precedent in the words of this Court, https://hcservices.ecourts.gov.in/hcservices/ before conviction could be based on circumstantialevidence, must be fully established. They are: (SCC p. 185,para 153) (1) the circumstances from which the conclusion ofguilt is to be drawn should be fully established. Thecircumstances concerned must or should and not may beestablished; (2) the facts so established should be consistent onlywith the hypothesis of the guilt of the accused, thatis to say, they should not be explainable on any otherhypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive natureand tendency; (4) they should exclude every possible hypothesisexcept the one to be proved; and(5) there must be a chain of evidence so complete asnot to leave any reasonable ground for the conclusionconsistent with the innocence of the accused and mustshow that in all human probability the act must havebeen done by the accused. 22. The above position was highlighted in State ofRajasthan v. Raja Ram [2003(8) SCC 180].(emphasis supplied)9.2. We shall, therefore, deal with various circumstances reliedupon by the prosecution, in the light of the above principles.VII (D) - CIRCUMSTANCES10.1. The case of the prosecution, of course, is not based on theevidence of eye-witness, but on the circumstantial evidence. WhileP.Ws.1 to 3 speak about the motive, P.Ws.4 and 5 speak about themovement of the accused near the scene of occurrence and P.Ws.6 to 8speak about the absence of the accused in the school where he wasworking, at the relevant time.10.2. The chain and the links, which constitute the circumstances tobring home the guilt of the accused, are as under:(i) the accused had an ill-intention to commit rape on thedeceased; https://hcservices.ecourts.gov.in/hcservices/ (ii) he had chosen the time when the deceased was alone inthe residence and left the school and came to the residence;(iii) he hit the deceased with poori kattai, M.O.11 andwhen the deceased fell unconscious, he committed theoffence under Section 376, IPC;(iv) he fisted the child on her face and on her becomingunconscious, laid her near the deceased;(v) he threatened P.W.2 with dire consequences and made herto speak to P.W.1, impersonating the deceased, in order tomake the death of the deceased and her child as a suicide;(vi) in order to screen the offence, he took kerosene fromP.W.2 and poured the same on the deceased and her child andthereafter, set them on fire;(vii) he was seen in the place of occurrence by P.W.4 atabout 1/1.15 pm, viz. before the time of occurrence;(viii) his leaving the scene of occurrence by opening thegate of his house, around 2/2.10 pm, was witnessed by P.W.5and his brother;(ix) at about 2.10 pm, after purchasing electrical goods,he had stated to P.W.6 that he had committed a smallmistake and would tell the same later and thereafter, wentto Sister Convent;(x) his presence and purchase of electrical goods atKrishna Electricals is spoken to by P.W.7 ; and(xi) his absence in the School, where he was working, from12.45 pm to 2.45/3 pm was spoken to by P.W.8.VII (E) - OFFENCE UNDER SECTION 376, IPC11.1. It is true that P.W.2, neighbour, was examined by P.W.17,Revenue Divisional Officer on 16.8.2003 and at that time, she had notstated anything about the extra judicial confession or threat by theaccused. But, in her statement made to P.W.30, Deputy Superintendent ofPolice, she had stated about the extra judicial confession made to herby the accused that when he embraced the deceased, she did not acceptand therefore, he hit on her head with poori kattai, M.O.11 and when shefell unconscious, he quenched his thirst by having committed the offenceunder Section 376, IPC and since he wanted to simulate as if thedeceased committed suicide, he fisted the child, who was playing, on her https://hcservices.ecourts.gov.in/hcservices/ face and laid her near her mother. Further, the accused caught hold ofher neck and threatened her not to reveal to anybody, and otherwise hewould do away with her in the same manner like the deceased and he alsoasked her to call P.W.1, brother of the deceased and to impersonate likethe deceased by putting her saree pallu on the mouth piece of thereceiver. P.W.2 spoke to P.W.1, as tutored by the accused, that she hadbeen tortured for money and asked him to come within one hour, orotherwise she would commit suicide. Since the accused threatened her,fearing danger to her life, P.W.2 would not have informed P.W.17 on theearlier day. The conduct of P.W.2 is quite natural and is that of anormal prudent person. Therefore, there is no reason to reject herevidence as unreliable.11.2. Further, in his evidence, P.W.1 had stated that the deceasedcalled him and asked him to come with money within one hour, otherwise,she would commit suicide. Immediately, P.W.1 called his brother'sresidence and spoke to his sister-in-law, P.W.3 about the telecon by thedeceased and asked her to visit the place of the deceased and to informhim. P.W.3 also, in her evidence, stated that P.W.1 called her andstated about the telecon of the deceased. Hence, the evidence of P.W.2is corroborated by the evidence of P.Ws.1 and 3 insofar as the call madeby P.W.2 impersonating the deceased is concerned. Therefore, theevidence of P.W.2 cannot be rejected.11.3. In the extra judicial confession made by the accused to P.W.2,he had stated that when he embraced the deceased, she did not accept andtherefore, he hit on her head with poori kattai, M.O.11 and when shefell unconscious, he quenched his thirst by committing the offence underSection 376, IPC. The above statement is corroborated by the woundcertificate Ex.P25 certifying that there was a simple injury and opiningthat it might be due to a finger nail scratch. The possibility thatfinger nail mark on the left clavicular region would have been caused onthe accused by the deceased only when the deceased tried to resist theaccused from committing the offence under Section 376, IPC cannot beruled out. Ex.P8, Chemical Report certifying that M.O.15, brief,contained semen also strengthens the offence under Section 376, IPC.The contention that no medical evidence was adduced to prove the offenceis not sustainable, because, the Doctor, P.W.24, who conducted autopsyhad stated that due to extensive second degree burns over the front onall the parts of the body, he could not trace out the symptoms for thecommission of offence under Section 376, IPC.11.4. Besides, the motive for commission of the offence underSection 376, IPC is also proved by the evidence of P.W.2, P.W.3 andP.W.1. P.W.2 deposed about the extra judicial confession made by theaccused that he had an eye over the deceased and since no body was inthe house on the date of occurrence and the deceased refused to heed hiswish, he committed the offence under Section 376, IPC, after hitting her https://hcservices.ecourts.gov.in/hcservices/ on her head. P.W.3, in her evidence, stated the deceased had complainedto her, 15 days prior to the date of the occurrence, about the conductof the accused towards her, which is corroborated by the evidence ofP.W.1, who also stated about the conduct of the accused. Therefore, wedo not see any merit in the contention that the evidence of P.W.3 andP.W.1 is unreliable.11.5. That apart, in Narayana Swami v. Emperor [AIR 1939 P.C. 47],it is held as under:""Circumstances of the transaction" is a phrase no doubtthat conveys some limitations. It is not as broad as theanalogous use in "circumstantial evidence" which includesevidence of all relevant facts. It is on the other handnarrower than "res gestae." Circumstances must have someproximate relation to the actual occurrence and must be ofthe transaction which resulted in the death of thedeclarant. It is not necessary that there should be aknown transaction other than that the death of thedeclarant has ultimately been caused, for the condition ofthe admissibility, of the evidence is that "the cause of(the declarant's) death comes into question". (emphasis supplied)11.6. At this juncture, it is relevant to take note of Section 32 ofthe Indian Evidence Act, 1872 which deals with cases in which statementof relevant fact by a person who is dead or cannot be found, etc. isrelevant. The general rule is that all oral evidence must be direct viz.if it refers to a fact which could be seen it must be the evidence ofthe witness who says he saw it, if it refers to a fact which could beheard, it must be the evidence of the witness who says he heard it, ifit refers to a fact which could be perceived by any other sense, it mustbe the evidence of the witness who says he perceived it by that sense.Similar is the case with opinion. The clauses of Section 32 areexceptions to the general rule against hearsay just stated.11.7. It is settled law that if the statement relates to the causeof death or exhibits circumstances leading to the death, the evidence ofhearsay is also admissible as per Section 32 of the Indian Evidence Act.But, the said statement, which is made before the cause of death hasarisen or before the deceased has any reason to anticipate being killedthe same, is admissible only if the circumstances have some proximaterelation to the actual occurrence. The evidence, which consists thestatements made by the deceased, relating to her death and reveal atell-tale story, cannot be ignored or made irrelevant due to thedistance of time. In exceptional circumstances, such evidence isadmissible if it raises a doubt about the guilt of the accused. It isnot necessary that it should prove the positive fact, vide Sharad https://hcservices.ecourts.gov.in/hcservices/ Birdhichand Sarda v. State of Maharashtra [1984 SCC (Cri) 487].11.8. In the light of the ratio laid down in the decisions citedsupra, we are convinced that the evidence of P.W.3, which iscorroborated by the evidence of P.W.1, with regard to the statement madeby the deceased about the conduct of the accused towards her isadmissible, even though it is made after two months from the date ofoccurrence. Hence, there is no good enough reason to reject thetestimony of P.W.3, since it proves the motive of the accused for thecommission of the offence under Section 376, IPC.11.9.1. Now, the question that arises for our consideration iswhether the prosecution has proved the link between the chain ofcircumstances referred to above or not, to substantiate the offencepunishable under Section 376, IPC, beyond all reasonable doubts?11.9.2. The evidence of P.Ws.1 and 3 is in one voice qua theconduct of the accused towards the deceased to quench the thirst of lustis concerned. In fact, the deceased herself had shared her worriesabout the ill-behaviour of the accused towards her to P.W.3, during herlast visit to the residence of P.W.3, and also requested P.W.3 not toinform to her brother, viz. husband of P.W.3, fearing futureconsequences. After the occurrence, when P.W.3 informed about thestatement of the deceased, her husband slapped her for not informing thesame earlier. With this back ground, the extra judicial confession madeby the accused, as spoken to by P.W.2, stands corroborated by theevidence of P.Ws.1 and 3 as to the motive for the commission of offenceunder Section 376, IPC. 11.9.3. To quench the thirst of lust, the accused had chosen thetime when the deceased was alone at the residence, left the school asspoken to by P.W.8, viz., the accused was absent from the School from12.45 pm to 2.45/3 pm. Apart from proving his absence in the School,the prosecution has also substantiated the presence of the accused inthe place of occurrence through the evidence of P.W.4, Councillor ofYercaud Town Panchayat who saw the accused in his house between 1 and1.15 pm. Substantiating the evidence of P.Ws.8 and 4, P.W.5, buildingcontractor, deposed that he saw the accused opening the gate and comingout of his house around 2/2.10 pm. Thereafter, the accused was found atthe shop of P.W.7, who deposed that the accused came along with P.W.6 topurchase electrical goods, which is strengthened with the copy of thebill, Ex.P3. P.W.6 deposed that the accused, after purchasingelectrical goods from the shop of P.W.7, stated that he committed asmall mistake. 11.9.4. If the accused left the School at 12.45 pm only to purchaseelectrical goods, he would have straight away gone to the shop of P.W.7and returned to the School, immediately after his purchase and in whichevent, P.Ws.4 and 5 would not have seen the accused at the place of https://hcservices.ecourts.gov.in/hcservices/ occurrence at about 1/1.15 pm and 2/2.10 pm respectively, nor P.W.6would have taken him to the shop of P.W.7, to whom the accused hadstated that he committed a small mistake. 11.9.5. The prosecution has, therefore, rightly proved the linksbetween the chain of circumstances that the accused had ill intentiontowards the deceased and chosen the convenient time for the commissionof offence under Section 376, IPC and accordingly, left the School at12.45 pm, went to the residence and since the deceased did not heed tohis desire, he hit on her head with poori kattai, M.O.11 and when shefell unconscious, he committed the offence, left the house by openingthe gate, which was seen by P.W.5 and went to the shop of P.W.7 alongwith P.W.6 and thereafter, returned to the School. 11.10. From the above discussion, we are satisfied that the offenceunder Section 376, IPC has been made out. VII (F) - OFFENCE UNDER SECTION 302, IPC12.1. The next question that arises is whether the prosecution hasproved or not the links between the next chain of circumstances, viz.fisting the child on her face and on her becoming unconscious, layingher near the deceased and thereafter, murdering them and threateningP.W.2 with dire consequences and making her to speak to P.W.1impersonating the deceased in order to make the death of the deceasedand her child as a suicide, to substantiate the offence under Section302, IPC beyond all reasonable doubts?12.2. According to P.W.2, the accused asked her some kerosene toclean the machine. Since P.W.2 was having lunch, she has given 10litres capacity can containing around 6/7 litres of kerosene to theaccused. After some time, the accused, who was standing at the backside of the house, called P.W.2. As soon as P.W.2 entered the house,she found the deceased and her child were lying unconscious in thekitchen. When she enquired the accused, he stated that when he embracedthe deceased, she did not accept and therefore, he hit on her head withpoori kattai, M.O.11 and when she fell unconscious, he quenched thethirst of lust by committing the offence under Section 376, IPC andsince he wanted to simulate the occurrence as if the deceased committedsuicide, he fisted the child, who was playing, on her face and laid hernear her mother. Thereafter, P.W.2, made call to P.W.1 impersonatingthe deceased, being threatened by the accused that he would do away withher in the same manner like the deceased if she tells to anybody aboutthe occurrence, and later left the scene of occurrence. Around 4 pm,when she came to know that the deceased and her child were burnt, shewent to the house of the deceased and witnessed the burnt bodies of thedeceased and her child in the kitchen. From the above, it can beelucidated that the accused had poured kerosene on the deceased and her https://hcservices.ecourts.gov.in/hcservices/ child, who were unconscious and set them on fire. Accordingly, theaccused had committed the offence under Section 302, IPC.12.3. P.W.2 is the only witness who saw the deceased and her childlying in the kitchen, when she was called by the accused and thereafter,found the burnt bodies of the deceased and her child in the hall. Thesaid portion of her evidence derives strength from the evidence of C.W.1who deposed that he removed the tiles of the house of the deceased andthereafter, when he entered the house after the public gained entry, hesaw the bodies of the deceased and her child in the hall only.Therefore, the contention that the deceased had only committed suicideand thereafter, the people who entered inside the house would havebrought the bodies to the hall, cannot be sustained, as the stove, gascylinder and other things in the kitchen were found intact. Moreover,the doors of the house were found to be unlocked. Thus, aftercommitting the offence under Section 376, IPC the accused would havebrought the deceased and her child to the hall and would have pouredkerosene and set them on fire. Hence, the contention that the carbonparticles were found deposited more in the kitchen than in the hall alsocannot be accepted, because, the house of the deceased was very smalland therefore, there is possibility for the deposit of carbon particlesin the kitchen. However, the deposit of carbon particles in the kitchenwould not change the nature of offence.12.4. That apart, as per the statement of P.W.6, at about 2.10 pm onthe date of occurrence, the accused, who came to his shop, asked him todrop him at Electrical shop to purchase electrical goods and afterpurchasing some goods, the accused asked him to drop him at SisterConvent. While going, since the accused asked him to drive fast, heenquired as to the urgency, and at that time, the accused told him thathe committed a small mistake and he would tell the same later and he gotdown at Sister Convent. The above statement supports the evidence ofP.W.2 to conclude that the accused has committed the offence underSection 302, IPC.12.5. Further, P.W.24, Doctor, who conducted post mortem had deposedthat the back side of the body, crown of the head and the soles were notburnt and therefore, there is no possibility of committing suicide. Asper Ex.P46, Post Mortem Certificate, extensive second degree burns werefound over the front on all the parts except over the back of the head,middle of the back, most of the buttocks and both soles. Assuming thedeceased had committed suicide, naturally she would have poured keroseneon her head which would have spread on all over her body and on settingfire, all parts of the body would have got burnt. But, as per the postmortem certificate, back of the head, middle of the back, most of thebuttocks and both soles were not burnt. Further, after setting fireon her and on her child, she would have moved here and there and raisedalarm, but would not have laid down as if she wanted to sleep. https://hcservices.ecourts.gov.in/hcservices/ Moreover, if the deceased had committed suicide, after pouring kerosene,she would have thrown the can containing kerosene in the house itself,but not outside the house. This would establish that the deceased hadnot committed suicide and she was done to death. 12.6. Even though an argument was raised on behalf of the appellantthat as per the evidence of D.W.2, the deceased would have onlycommitted suicide, we are unable to appreciate the same, since D.W.2,who is the sister of the accused, on being informed by the deceasedabout her frustration to live due to the scolding of her brother andrefusal to give money, is normally expected to inform the same to herbrother, husband of the deceased and tried to convince her. But, theaction of D.W.2 in not informing the same to her brother creates a doubtas to the veracity of her evidence. Therefore, the same is liable to berejected.12.7. We have already rendered our finding as to the trustworthinessof the evidence of P.Ws.1 and 3 and as to the discharge of burden by theprosecution to prove the links between the chain of circumstances. Now,in continuation of our earlier finding that the evidence of P.Ws.1 and 3is reliable, trustworthy and the prosecution has proved the linksbetween the chain of circumstances, we are satisfied that theprosecution has proved the chain of circumstances, viz. fisting thechild on her face and on her becoming unconscious, laying her near thedeceased and thereafter, murdering them and also threatening P.W.2 withdire consequences and making her to speak with P.W.1 impersonating thedeceased, to make the death of the deceased and her child as a suicide. 12.7. In view of the above, we have no hesitation to hold that thedeceased had not committed suicide, but it is a homicide by the accusedand accordingly, the offence under Section 302, IPC stands proved.VII (G) - OFFENCE UNDER SECTION 302 READ WITH 201, IPC13.1. What is left to be decided is whether the prosecution hasproved the link between the chain of circumstances with regard to thescreening of the offence by pouring kerosene on the deceased and herchild.13.2. The accused, in his extra judicial confession made to P.W.2,had stated that he had committed the offence under Section 376, IPC andto make it as a suicide, he asked P.W.2 to give kerosene and thereafter,he poured the kerosene on the unconscious deceased and her child and setthem on fire and screened the offence under Section 376, IPC. The abovestatement would make it clear that the accused had the intention toscreen the offence under Section 376, IPC. https://hcservices.ecourts.gov.in/hcservices/

13.3. That apart, as per Ex.P46, post mortem certificate, thesymptoms for the commission of offence under Section 376, IPC could notbe traced due to the extensive second degree burns over the front on allthe parts of the body of the deceased.13.4. We are, therefore, of the considered opinion, that at the timeof occurrence, the accused had the knowledge that he had committed themain offence and caused disappearance of evidence with regard to themain offence, and had the intention to screen the offence, by burningthe body of the deceased and her child and consequently, the ingredientswith respect to the screening of offence had been satisfied.Accordingly, the offence under Section 302 read with 201, IPC has alsobeen made out.13.5. Thus, the prosecution has satisfactorily discharged theironus of proving the link between the chain of circumstances to bringhome the guilt of the accused qua the screening of offence is concerned.VIII – FINDING14. In view of the above discussion, our appraisal and analysis ofthe evidence on record, we have no hesitation to hold that theprosecution has successfully established all the circumstances appearingin the evidence against the accused by clear, cogent and reliableevidence and the chain of the established circumstances cumulativelylead to the only irresistible conclusion that the accused alone is theperpetrator of the crime.IX – ENCOMIUM14. Before we part with the matter, we place on record ourappreciation for the prompt and meticulous investigation and theassiduous work undertaken by Mr.Ponn Manickavel, IPS, Superintendent ofPolice, Mr.K.Palanivel, Deputy Superintendent of Police andMr.P.Ettiyappan, Scientific Officer, along with his team to bring out aclear picture of the crime committed by the accused by their dedicatedand determined performance. X - UPSHOTThis appeal is dismissed confirming the conviction and sentenceimposed by the learned I Additional Sessions Judge, Salem. https://hcservices.ecourts.gov.in/hcservices/ Criminal Appeal No.792 of 2007R.REGUPATHI, J.While I respectfully agree with the Judgment proposed by mylearned brother P.D.DINAKARAN, J., I would like to project my own viewsby delivering a separate judgment.2. Wails and attempts of a young helpless woman, pleading formercy and for sparing her honour and life, did not deter the vulture-like culprit, who is none else than her brother-in-law, in committingthe most ghastliest crime of rape and murder to quench his wild thirstfor passion. The deceased was made unconscious by him with a severeblow on her head with a dough-roller (poorikattai) so that he coulddeflower her without any fray or resistance. The little drops ofhumanness which conjointly make humanity a cherished desire of mankindhad seemingly dried up, when he gave a deadly punch on the tender faceof his niece, a baby of just 13 months old, to make her inert so as tocomfortably burn her along with her mother, who was already madeunconscious by his brutal acts. Insolently, he invited a neighbour PW-2,showed her as to what he has committed, intimidated and threatened hernot to divulge his acts and by squeezing her neck, forced her, who wasalready under the grip of fear, to talk to the relatives of the firstdeceased over phone as if the deceased herself was talking in order tomake them believe that the first deceased was alive at that time.Charged in that regard for offences punishable under Sections 376, 302(2 counts), 302 read with 201 (2 counts) and 506 (2) IPC., theappellant/accused was found guilty by the trial court of all the chargesand sentenced to undergo R.I. for 7 years, life imprisonment (2 counts),R.I. for two years (2 counts) and R.I. for 7 years respectively, apartfrom imposition of fine amounts with default sentences. The sentenceswere ordered to run concurrently. 3. On 15.08.2003 between 1.15 and 2 P.M., while the firstdeceased Vijayalakshmi (referred in this Judgment as D1) was alone inthe residence with the second deceased, her tender female child by nameSrimathi (referred herein as D2), the accused, her brother-in-law,making use of the loneliness, made an attempt to rape her and as she wasnot amenable to his desire, he violently attacked on her head with adough-roller and on her becoming unconscious as a result of sustainingfracture in the scalp, forcibly committed rape on her; thereby, he wascharged for an offence punishable under Section 376 IPC. Thereafter,with a view to screen the offence and evidence, he poured kerosene onher and set her ablaze, resulting in her death; thereby, charge underSection 302 IPC. came to be framed. https://hcservices.ecourts.gov.in/hcservices/ In the same course of transaction, with a view to murder thefemale child of D-1, he gave a deadly fist on her face, as a resultthereof, she had lost her consciousness and thereafter, he set herablaze by pouring kerosene; thereby, charge under Section 302 IPC. (2ndcount) was framed against him. As he burnt both the deceased with an intention to screen theoffence, conceal the evidence and to make an impression as if D1committed suicide along with her child/D2, charge under Section 302 readwith 201 IPC. (2 counts) was framed. For intimidating and threatening PW-2, charge under Section 506(2) was framed.When the accused was initially questioned, he pleaded innocenceand therefore, trial of the case was taken up. The prosecution, in itsendeavour to bring home the guilt of the accused, examined PWs-1 to 31,marked Exs.P1 to P66 and produced MOs-1 to 20. On the side of thedefence, four witnesses were examined as DWs-1 to 4 and Exs.D1 to D11were marked. C.W.1 by name Francis was examined as a court witness. 4. The fact situation of this case as unfurled by theprosecution witnesses is briefly stated here-under. i) PW-1 is the brother of D-1 and he speaks about the dowrydemand and the phone call received by him from her sister's residence at2 P.M. on the fateful day. Since the phone call was cut off on the sideof his sister, he immediately tried to contact her but in vain andtherefore, he contacted his brother over phone in that regard. By 3.30P.M., he received a telephonic message from his brother to the effectthat their sister/D1 and her child/D2 were no more. He startedimmediately, reached the scene house at 7 P.M. and thereafter lodged awritten complaint Ex.P1 with the police and Ex.P2 is the Telephone Bill.ii) PW-2 is a neighbour of the accused. According to her, on15.08.2003 at 1.30 P.M., the accused asked for kerosene to clean amachine and, as she was having food at that time, she gave him the Cancontaining about 6 to 7 litres of kerosene. When PW-2 came out of herresidence, the accused signalled her to come to his residence andthinking that he called her to return back the kerosene Can, she wentthere and at the kitchen room found both the deceased lying inert on thefloor. She scolded the accused and shrieked, whereupon, the accusedtold that he hugged her sister-in-law/D1 with a view to rape her andwhen she resisted, he attacked her with a dough-roller on head, makingher unconscious and thereafter raped her and further, took her babyplaying nearby, gave a punch on her face and threw it alongside D1. By https://hcservices.ecourts.gov.in/hcservices/ threatening PW-2 that she would also be finished off if she does not acton his words, the accused asked her to talk over phone to the brother ofD1 posing herself as D1 and state that unless they bring money within anhour, herself and D2 would not be seen alive. Accordingly, afterstating so, she immediately cut the line even without answering thereply from the other end. It is her specific evidence that she wasunder the grip of panic and fear and was not able to do her works onthat day. iii) PW-3 is the sister-in-law of D1. Her evidence is thatearlier, D-1 told her about the misbehaviour of the accused andrequested her not to reveal the same to his brother. According to PW-3,she did not inform the said fact immediately after the occurrence asthey came to know that it was a case of murder only later on. iv) PW-4 deposed that he saw the accused at his residence atabout 1.15 p.m. and called him to attend a plumbing job, for which, hedeclined stating that he had some other work. He speaks to the presenceof the accused at the vicinity of the occurrence place at the relevantpoint of time. v) PW-5, a building contractor, who knows the accused as aplumber, while going in a motorcycle along with his brother, saw theaccused coming out of his residence/scene place between 2 and 2.10 p.m.vi) PW-6 states that at about 2.10 pm., the accused came to hisshop and requested him to drop him at the electrical shop and hisspecific statement is that while travelling so, the accused asked him todrive fast and when questioned as to what happened, he replied that hehad committed a mistake. PW-6 further states that only after knowingabout the incident, he could understand the meaning of what has beenstated by the accused as mistake. vii) PW-7 is the worker in the electrical shop where theaccused purchased the electrical goods after being dropped by PW-6. Hisevidence is that he saw the accused unusually disturbed and in a stateof hurry. Copy of the counterfoil of bill for the purchase ofelectrical goods by the accused is marked as Ex.P3.viii) PW-8 was working as a Supervisor at St.Anne's Convent,where the accused and his brother viz., the husband of D1, were engagedfor electrical works. His evidence is that on 15.08.2003, the accusedleft the working place by 12.45 P.M. to purchase some electrical goods,however, he returned back only by 3 P.M. ix) PW-9 is the Scientific Officer, who, on receipt of Ex.P4,letter sent by the Court along with materials recovered at the scene of https://hcservices.ecourts.gov.in/hcservices/ occurrence viz., empty cylinder, plastic can, piece of burnt mat withstain, wire bag , stove etc., conducted chemical examination and thereport submitted in that regard is Ex.P5. PW-10 is the scientificofficer who issued Ex.P6 report with reference to chemical examinationof a pump stove sent as item No.7. PW-11 is the Scientific Officer, whoon receipt of Ex.P7/letter from the court of the Magistrate, subjectedthe underwear of the accused and the semen found therein to chemicalanalysis and also sent sample blood and salvai to the GovernmentHospital for examination. Ex.P8 is the Chemical Report and Ex.P9 is theSerologist's Report. x) PW-12, on coming to know about the incident, went in searchof the husband of D-1 so as to inform him about the death of his wifeand child. At about 3.30 P.M., he found both the accused and thehusband of D1 at a bungalow. He took the husband of D1 along with himin his motorcycle without informing him of the incident. He saw theaccused leaving that place in another vehicle. xi) PW-13 was summoned to the police station for enquiry and inhis presence, the accused made a confession statement and the admissibleportion thereof is Ex.P10.xii) PW-14 is the Sub Divisional Engineer of BSNL, Yercaud, andhe has been examined to speak about the working condition of thetelephone viz., Telephone connection No.222612, in the house where theoffence was committed. xiii) PW-15 is the Judicial Magistrate, who recorded thestatement of PW-2 under Section 164 Cr.P.C. on 25.08.2003 and the saidstatement is marked as Ex.P14.xiv) PW-16 is the Scientific Officer. After making observationand examination of the scene of occurrence, the articles availabletherein, and the posture and location of the burnt bodies, he forwardedhis report under Ex.P15 to the effect that the cause of death is not dueto suicidal burning. xv) PW-17 is the Revenue Divisional Officer. As the death of D-1 was within three years of marriage, he conducted enquiry and in thatcourse, held inquest over the bodies of the deceased and the inquestreport is Ex.P17. His enquiry report is marked as Ex.P16, wherein, itis concluded that the death was not a result of dowry harassment andthat it is a suspicious death. xvi) PW-18 is the village Administrative Officer. On https://hcservices.ecourts.gov.in/hcservices/ information, he along with his Assistant reached the scene of occurrenceand found the front door unbolted from inside and it got opened just byplacing hands thereon. PW-16 and his Assistant attestedEx.P18/Observation mahazar, prepared by the Investigating Officer. xvii) PW-19 is the Medical Officer, who has issued theCertificate under Ex.P22 to the effect that there was no fracture in thehyoid bone of D1. xviii) PW-20 is the Doctor, who, on receipt of Ex.P23requisition from the Investigating Officer and Ex.P24 from the court,examined the accused for the injury found at his neck and for virility.As regards the abrasion found on the neck of the accused, he opined thatsuch injury is possible due to a finger-nail scratch. Ex.P25 is thewound certificate and Ex.P-26 is the virility certificate. xix) PW-21 is the court clerk who forwarded the materialobjects to the forensic lab for chemical examination.xx) PW-22 is the Judicial Magistrate, who passed remand orderEx.P29 against the accused. He has stated that the police did not fileany petition to record the confession of the accused and that theaccused voluntarily stated that he committed the offence, however, hedid not record the same in the remand order. xxi) PW-23 is the Judicial Magistrate, who recorded thestatements under Section 164 Cr.P.C. of the witnesses including PW3 andthose statements have been marked as Ex.P31 to 43.xxii) PW-24 is the Doctor, who conducted autopsy over the deadbodies on receipt of Exs.P44 and 45 requisition from the police. Asregards D-1, he issued post mortem certificate under Ex.P46, wherein,the following has been noticed:-" External Appearances: Face : Hair burnt on the front ofscalp upto the back of the parietal bones, both eye lidsburnt on both sides and closed.Blood present on the nostrils. Tongue protruded andclenched between the teeth. External Injuries:-1) Extensive 2 (degree) burns over the front on all the https://hcservices.ecourts.gov.in/hcservices/ parts and over the back on all parts except over the back ofthe head, middle of the back most of the buttocks and bothsole of feet. The extent of the total burnt area is 85% andthe unburnt area is 15% approximately.2) There is a depression on the 4 side of the head 4"above the left ear.Internal Examination:- .....Skull: Depressed fracture on the parietal bone 4" abovethe left ear measuring about 2" x 1" x ½ cm. size. No bloodin the calvarium. Brain tissue immediately below the fractured area islacerated measuring 2" x 1" x ½" cm. size.Neck: Hyoid bone normal. ....." As to the cause of death, it is opined that D-1 would appear to havedied of shock due to head injury and burn injuries. Ex.P47 is the post mortem certificate issued in respect of D2 and inthe said certificate, it is opined that D-2 would appear to have died ofshock due to burn injuries. By referring to his noting in the post-mortem certificate thattongue was protruding and teeth clenched, the Doctor, while deposingbefore court, stated that the deceased would have been alive at the timewhen the accused lighted them. xxiii) PW-25 is the Head Constable, who took the dead bodies tothe hospital for the purpose of autopsy. PW-26 is the PolicePhotographer who took photographs of the scene of occurrence in 11angles. Ex.P48 series are the photographs and Ex.P49 series are thenegatives thereof. xxiv) PW-27 is the Sub Inspector of Police, who on receipt ofthe complaint from PW-1, registered a case in Crime No.350/03, preparedFIR under Ex.P50 and forwarded copies thereof to his superior officers. xxv) PW-28 is the Revenue Divisional Officer to whom, theaccused gave a confession statement and the same was recorded underEx.P52. https://hcservices.ecourts.gov.in/hcservices/ xxvi) PW-29 is the police photographer who photographed andvideographed the crime scene and the statement of the accused. Ex.P55is the photo of the accused, Ex.P56 is the negative thereof, Ex.P57 isthe video cassette and Ex.P58 is its VCD print.xxvii) PW-30 is the Deputy Superintendent of Police, whoinvestigated the case from 15.08.2003 to 18.08.2003. While proceedingwith the investigation, on 18.08.2003, after getting the opinion of theDoctor by preparing medico legal questionnaire and recording thestatements of witnesses, he altered the provisions of offence as theones under Sections 302 and 376 IPC. and sent the altered report Ex.P-60to the Judicial Magistrate. On 19.08.2003, he handed over theinvestigation to PW-31 the Superintendent of Police, Salem, and wasassisting him in further investigating the matter. On 23.08.2003 at 7A.M., PW-30 arrested the parents of the accused.xxviii) PW-31 is the Chief Investigating Officer/Superintendentof Police, who after taking over the investigation from PW-30, proceededfurther. On 19.08.2003, he went to the scene of occurrence and recordedthe statement of PW-2 and that of other witnesses. The abscondingaccused was produced before him by the Inspector of Police on 20.08.2003at 1.30 P.M. He sent him to the Hospital for obtaining medical opinion.After complying with the legal formalities, he recorded the statement ofthe accused. He produced the accused with a report before the D.R.O.,Salem, to record his statement in writing and through video. Theaccused took him to the scene of occurrence and produced the dough-roller, shirt, pant and underwear from the kitchen and also a phoneregister and the same were seized under mahazar in the presence ofwitnesses. He examined the witnesses on different dates and thestatement of PW-2 Selvi as regards the occurrence was recorded throughvideo. On 01.9.2003, he sent the accused to judicial custody. Between19.08.2003 and 14.11.2003, he examined 56 witnesses including Doctors,R.D.O. & V.A.O., and recorded their statements. After collecting allmaterials, he laid charge sheet against the accused before theMagistrate for the offences punishable under Sections 506 (1), 376 and302 read with 201 (2 counts) IPC. He also laid a separate charge sheetagainst the husband of D1 and other relatives for the offence underSection 498-A IPC. 5. When the accused was questioned under Section 313 Cr.P.C.with reference to the incriminating materials put forth against him bythe prosecution, he denied his complicity in the commission of theoffence and filed a statement, wherein, he has stated that D-1 wasagonised on account of the attitude of her brothers, who were nothelping her; that on 15.08.2003, he went to work along with his brotherand only at 3.30 P.M., through PW-12 Ravi, they came to know that D-1self-immolated her along with the child; that the Investigating Officer https://hcservices.ecourts.gov.in/hcservices/ tortured him to give a confession statement to the effect that he hadmurdered D1 after committing rape on her and torched her along with D2;that he is an innocent; that he never produced any material object asalleged by the police; that the confession before the D.R.O. was alsoobtained under coercion and threat and that a false case has beenfoisted against him.5-A. DW-1 has stated that the F.I.R. in the case was receivedby the court on 18.08.2003. DW-2, the sister of the accused, has deposed that on 13.3.2008,D1 phoned her stating that her brother and his wife have forcibly senther out of their house when she went to them, asking for a loan ofRs.10,000/- and that on 15.08.2003 at 9 A.M., she again received a phonecall from D1 stating that she was very upset as her brother and his wifehave scolded her and therefore, she does not like to live. DW-3 is the Branch Manger of Indian Bank, Mechery Branch, andhe has stated that on 20.08.2003, the accused came to the Bank andredeemed the jewel pledged with the Bank between 10 A.M. and 2 P.M. DW4 is the Sub Divisional Engineer (Legal), BSNL. He hasstated that all STD outgoing calls are registered from each telephone inthe magnetic tape maintained by the Exchange and that there was nooutgoing STD calls from telephone No.222032 in August, 2003. During re-examination, he has stated that billing facility is available only foroutgoing calls and not for incoming calls. As referred to earlier, Exs.D1 to D11, viz., photo of oneDhanapal, carbon copy of the bill dated 15.02.2004, statements given bywitnesses during inquest, telegram, jewel loan register and thesignature of the accused found therein, have been marked as defence sidedocuments. 5-B. CW-1 is the court witness and he is residing adjacent tothe house of the accused. According to him, while having lunch, heheard noise and on coming out, he found smoke emanating from the houseof the accused and few persons standing there and further, he climbed upand went to the roof top and removed four or five tiles and by thattime, persons standing outside the house entered and found both thedeceased dead with burn injuries.5-C. The trial court, after exhaustive consideration of theoral and documentary evidence adduced by both sides and of the argumentsadvanced on either side, found the appellant/accused guilty of all the https://hcservices.ecourts.gov.in/hcservices/ charges and passed the order of conviction and sentence asaforementioned. The said order is under challenge in this CriminalAppeal.6. Learned counsel for the appellant elaborately argued thematter, raising several grounds, in his endeavour to assail the orderpassed by the trial court.At the foremost, he submits that the emphatic case of thedefence is that D1, who was very upset and felt dejected as she wasabandoned by her brothers and not helped by them while her family was inadversity, took the extreme decision of self-immolating herself alongwith her child. The said aspect has been spoken to by DW-2. Further,the prosecution did not come forward immediately with the case of rapeand murder as the first F.I.R. registered was under Sections 498-A and304-B IPC. It is submitted that the persons, who entered the house onfinding smoke, would have poured water and might have placed the bodiesin a posture lying on the back and and that the soles of the deceasedwere not seen burnt and therefore, the said aspects are indicative ofself-immolation in a standing posture. That being so, by fabricating theincriminating materials to the extent possible, the prosecution draggedthe accused in its net by foisting a false case. This is a clear case ofsuicide and if such version of the defence is accepted, the case of theprosecution has no basis to stand. Next, by referring to Ex.D7, the statement made by PW-2 before theR.D.O at the time of inquest wherein she has stated that she came toknow that the death of the deceased was due to self-immolation, learnedcounsel would argue that such statement is quite contrary to what hasbeen deposed by PW-2 before court. For this simple reason, thetestimony of PW-2 before court should be thrown out and consequently,the extra-judicial confession said to have been made by the accused toPW-2 loses its sanctity. Further, in all probability, it is highlyimaginary that the accused, who is said to have committed a doublemurder, instead of leaving the place of occurrence, voluntarily callsa neighbour, confesses to her the act committed by him and threatensher. PW-2's attitude in coming up with different versions at differentstages creates doubt and therefore, her evidence should be eschewed fromconsideration.He pointed out that PW-1 initially came out with a version thatactually he spoke to her sister; thus, he did not doubt the voice, but,only after coming to know about the misconduct of the accused throughPW-3, who is said to have been informed of the same by D-1 on theearlier occasion before her death, and seeing the newspapers, he becamevigilant enough to doubt the voice. Therefore, the post-event conductof PW-1 in narrating the sequence of events gives a strong presumptionof embellishment particularly while contrasting his testimony with that https://hcservices.ecourts.gov.in/hcservices/ of PW-3. There are contradictions between the testimonies of PW-1 andPW-3 as regards the starting point of doubt pertaining to murder. Thereare inconsistencies in mentioning the time as to when the witnessesreceived the message of death. In such circumstances, it is not safe torely on their testimonies so as to hold against the accused/appellant.According to him, the medical evidence is rather rambling and fromthe testimonies of the Doctors and experts, a concrete conclusion couldnot be reached that the death was due to homicidal violence. Such being the actual state of affairs, the recoveries, confessions,videographs etc. would in no way help the prosecution case as it isclearly apparent that those materials are the 'hand-tailored materials'of the prosecution to falsely implicate the accused. According to him,in the light of the various aspects adverted to by the defence, thisCourt may set aside the order of conviction and sentence passed by thetrial court holding that this is a clear case of suicide.7. Per contra, learned Additional Prosecutor submitted that theprosecution has established its case beyond all reasonable doubtsthrough its witnesses as well as documentary evidence and on the face ofthe same, the case projected by the defence adducing their side ofevidence was rightly rejected by the trial court. First of all, a closeperusal of the evidence of DW-2 would indicate that her evidence isnothing but an afterthought to escape her brother, the accused, from theclutches of law and punishment. If really D-1 had stated to her thatshe was going to commit suicide due to her ill-treatment at the hands ofher brothers, DW-2's usual conduct would be to inform the same to herhusband and other relatives and take immediate steps to see that shegets such feelings effaced from her mind. Even the evidence of DW-2 andthe written statement filed by the accused would only give an impressionthat D1 had to move her brothers due to the pressure and stiff dowrydemand on the side of the family of the accused. That being so, DW-2'sevidence cannot overturn the case of the prosecution. At the initialstage, though case was registered under other provisions, duringinvestigation, it came to light that the accused was the culprit whocommitted the rape and murder of the deceased and in such circumstance,it is futile to argue that, at the initial stage, it was concluded to bea case of suicide/dowry death but later on, the prosecution, by makingembellishments and improvements, developed its story and foisted a falsecase against the accused. According to him, a detailed and deep study ofthe report submitted by the Scientific Officer PW-16 coupled with thepost-mortem certificates and the deposition of the Medical Officer wouldestablish beyond any iota of doubt that this is a clear case of murder.Though the defence took much pains to impeach the testimony of PW-2 bycontrasting her evidence with her statement/Ex.D7 before the R.D.O. atthe time of inquest, consideration of the said materials in the light of https://hcservices.ecourts.gov.in/hcservices/ the factual aspects involved would show that the testimony of PW-2 isvery much consistent and natural and the same can be safely acted upon.Moreover, in this case, the extra-judicial confession made to PW-2 hasbeen correctly accepted by the trial court as the same is within theparameters of law and withstood the test of reasonableness andcredibility. An overall assessment of the evidence of the prosecutionwitnesses would establish the strong circumstances against the accusedin a cogent manner. According to him, considering the brutal manner inwhich the accused committed the crime against a woman and a tenderfemale child, the lower court should have inflicted a higher punishmentthan what has been imposed.8. I have carefully considered the entire materials availableon record and the rival submissions advanced on either side.9. Before proceeding to deliberate upon the arguments made, itmay be pertinent to make some observations relevant to this case:- A. Crime is an event which adversely affects the society as awhole, and when it is committed against the weaker sections of thesociety viz., women and children, it would have adverse and harmfulimpacts. The Supreme Court, in its various decisions, has highlightedthat, while dealing with such crimes, the Judges, who are armed with thesword of justice, should unsheathe and use the same to the full possibleextent so as to ensure that such crimes are not recurring; of course,while arriving at the positive conclusion about the guilt of the accusedcharged with the commission of such crimes, the court has to judge theevidence by the yardstick of probabilities, its intrinsic worth and theanimus of witnesses. The hyper-technicalities or figment of feebleimagination should not be allowed either at the instance of theprosecution or the defence to divest the court of its responsibility ofsifting and weighing the evidence to arrive at a just conclusionregarding the existence or otherwise of a particular circumstancekeeping in view the peculiar facts of each case, the larger interestsof the society particularly the law and order problem and degradingvalues of life inherent in the prevalent system. The realities of lifehave to be kept in mind while analysing the evidence for arriving at aright conclusion. Courts are not bound to make efforts either to clingtowards the prosecution or loosely construe the law in favour of theaccused. The traditional dogmatic hypertechnical approach has to bereplaced by rational, realistic and genuine approach for administeringjustice in a criminal trial. Criminal jurisprudence cannot be consideredto be a utopian thought but should be considered as part and parcel ofthe human civilization and the realities of life. Similarly, Courtsshould also take a serious note of the erosion in values of life. Sucherosions cannot be given a bonus in favour of those who are guilty ofpolluting the society. https://hcservices.ecourts.gov.in/hcservices/ B. A murderer destroys the physical body of the victim while arapist degrades the very soul of the helpless female. In the presentcase, allegedly the accused did both crimes apart from ruthlesslykilling a blossoming child. while dealing with such a case involvingsexual molestation followed by murder, the testimony of the prosecutionwitnesses must be appreciated in the background of the entire case andthe court must be alive to its responsibility and be sensitive. Whilegauging the situation, it must be carefully seen that a doubt, asunderstood in criminal jurisprudence, has to be a reasonable doubt andnot an excuse for a finding in favour of acquittal. An unmeritedacquittal encourages wolves in the society being on the prowl for easyprey, more so when the victims of crime are helpless females andchildren. C. Where the inference of guilt of an accused person is to bedrawn from circumstantial evidence only, those circumstances must, atthe first instance, be cogently established. Further, thosecircumstances should be of a definite tendency pointing towards theguilt of the accused, and in their totality, must unerringly lead to theconclusion that within all human probability, the offence was committedby the accused and none else. There may be no direct evidence to provethe actual participation of an accused in committing the crime but ifthe circumstantial evidence available against the accused is definiteand conclusive in nature, without any hesitance, conviction may berecorded on the basis of such circumstantial evidence.10. Proceeding in that perspective, in the first place, twovital aspects of the matter viz., acceptability or otherwise of the testimony of PW-2 and the question relating to the nature/cause ofdeath i.e., as to whether the same is homicidal orsuicidal, have to be carefully analysed as the findings thereon would haveconsiderable effect on the potentiality of the circumstances relied onby the prosecution in establishing the guilt of the accused. 11. To begin with, though this is a case of circumstantialevidence, there is a witness viz., PW-2, who happened to see thedeceased lying unconscious on floor on being shown by the accused beforethe bodies were burnt by him. He made an extra-judicial confession toher as to the acts committed by him, squeezed her neck, threatened herthat her children would be orphaned if she divulges the same or does notact as per his instructions and ultimately directed her to talk to abrother of D1 over phone projecting her to be D1. While dealing with https://hcservices.ecourts.gov.in/hcservices/ the evidence of such witness and the criticism made to her testimony bycontrasting the same with that of her statement before R.D.O/policeauthorities, the surrounding circumstances covering such issue must betaken note of. First of all, the presence of PW-2 at the vicinitycannot be doubted she being a neighbour. Further, the mere fact thatshe is a working lady used to leave the residence by 7 am and returnsback at 7 pm cannot be taken as a ground to doubt her presence because,the date of occurrence viz., 15.08.2003, was a holiday on account ofIndependence Day and further she usually comes in the afternoon forhaving lunch and thereafter, goes for other works. It is seen that,being shocked at the grisly acts of the accused in murdering not only awoman but a tender child, who are none else than his sister-in-law andniece respectively, PW-2 was under an irretrievable grip of panic andfear as the accused had threatened her that she would also be finishedoff, if she utters the truth. That is why, she deposed rather in clearterms that in the afternoon, in the working place, she could not do herworks and in fact, did not say anything to the watchman and his wifeavailable there when they questioned on seeing her in a state ofanxiety. It is not the case of the defence that she was enquired by theR.D.O. after considerable period of time so as to suggest that withoutfear or panic, she could state all the details known to her.Admittedly, her statement during the inquest was recorded by the R.D.O.on the next day ie., on 16.08.2003. Moreover, at that time, theaccused was not arrested and the eye of the police did not turn towardshim. Therefore, it is quite natural for her to hide those particularsfearing danger to her life at the hands of the accused. Such being thecircumstances, only after the arrest of the accused, while givingstatement before the Magistrate under Section 164 Cr.P.C. on 25.08.2003and similarly while deposing before court, she put forth what all shehappened to witness and also the threat posed to her by the accused.Viewed in that background, the so-called vital contradictions advertedto by the counsel for the appellant by reading between the contents ofEx.D7 and the evidence of PW-2 in order to impeach her testimony doesnot merit acceptance. Her testimony appears to be natural, cogent andconvincing. It follows that there is no difficulty to hold that the extrajudicial confession available through PW-2 is reliable and the same canbe acted upon. Courts will act on extra-judicial confession havingregard to the circumstances under which the confession is made, themanner in which it is made and the person to whom it is made and alsokeeping in mind the two rules of caution viz., (a) whether the evidenceof confession is reliable and (b) whether it finds corroboration. Inthe light of the reasons given above and of the fact that PW-2'stestimony is sufficiently corroborated by other piece of evidence, whichaspect would be discussed at the later part of this Judgment, the extrajudicial confession available here is a strong piece of evidence asagainst the appellant. https://hcservices.ecourts.gov.in/hcservices/

12. Coming to the suicide theory projected on the side of theappellant, such theory is, on the face of it, so vague and faint tosurvive in the light of the scientific and medical evidence. In fact,the trial court has elaborately dealt with the said question andaccepted the prosecution version that it was a case of homicidalviolence. PW-16, the Scientific Expert, who observed and examined theplace of occurrence, had adverted to various relevant details,emphatically ruling out the possibility of suicide. First of all,black stains were found around the dead bodies and not all over thekitchen where the bodies were burnt. By noting the following viz.,actual position, posture and location of the deceased, dorsal side ofthe corpus delicti being un-burnt, piece of un-burnt cloth found betweenthe seat (buttocks) of D1 and the floor, kerosene smell found in thebodies and other materials but no kerosene container was found insidethe house, fire would not have been originated from any of the twostoves available in the scene place and the pad lock and screws of thewooden doors were found in tact, PW-16 positively opined that the causeof death is not due to suicidal burning. In the light of the same, theargument advanced to the effect that the soles were free from burninjuries and therefore, it is a case of suicide is not acceptable atall. As rightly pointed out, such possibility is very much available inhomicidal violence also. In fact, PW-16 was subjected to lengthy crossexamination and there is nothing to suggest that he had deposed falsely.Corroborating the evidence of PW-16, there is the evidence of PW-24, theDoctor who conducted autopsy. He has stated that D1 would have died ofhead injury and burn injuries and that the head injury could have beencaused by dough-roller and violent blow therewith on head would lead todeath. He further asserted that if a person pours kerosene and self-immolates himself/herself, from head to toe there would be burninjuries, whereas, in the present case, there was no burn injuries onthe back, scalp and back side of the head. He further clarified thatsuch burn injuries would be possible if the deceased were burnt afterbeing laid in a state of unconsciousness. He has specifically statedthat he could not find carbon stains on the oesophagus. According tohim, if it is a case of self-immolation, definitely, the deceased wouldhave run here and there and the burn injuries would be quite differentfrom the ones noticed by him. He further suggested that she would havebeen burnt after made to lie on floor unconscious. He also withstoodthe rigour of cross-examination and emphatically stated that it is acase of murder. It would not be possible for a person who has sustained deadlyhead injury, as could be seen from the medical evidence, to self-immolate herself and her child. If the evidence of PW-16 and that of theDoctor/PW-24 is carefully considered along with the testimony of PW-2and other witnesses, there would be no difficulty in accepting the caseof the prosecution that it is a case of homicidal violence. https://hcservices.ecourts.gov.in/hcservices/

13. Now, the incriminating circumstances available against theaccused may be dealt with. Though relying on the written statement ofthe accused before trial court, a plea of alibi was sought to beprojected, the prosecution clearly established the circumstance as tothe presence of the accused at the scene of occurrence from inception toend through PWs-4 to 8. All of them are independent witnesses and ofcourse, PW-6 seems to be a person known well to the accused and wasfriendly towards him. PW-4 has stated that he met the accused on theoccurrence day at his residence between 1 and 1.15 p.m. for the purposeof laying a pipe line, and the accused refused therefor stating that hehas some domestic works to do. PW-5 has stated that on the same day atabout 2 or 2.10 p.m., while proceeding along with his brother, he sawthe accused coming out from his residence. PW-6, who seems to be afriend of the accused, was approached by the accused at 2.10 P.M. with arequest to drop him at the electrical shop, whereupon, he took him inhis motor-cycle. He has specifically stated that while travelling inthe motor-cycle, the accused asked him to drive fast and therefore, heasked him as to what happened, for which, the accused answered that hehad done a mistake. According to PW-6, he could understand the meaningof what was said by the accused as 'mistake' only after seeing thenewspapers. PW-7 is the worker of the electrical shop where the accusedpurchased electrical goods after being dropped by PW-6. He has statedthat at about 2.30 pm. the accused came and purchased electrical goodsfrom the shop and at that time, he was seen disturbed. PW-8 is theSupervisor at the school where the accused and his brother were workingon the occurrence day. His emphatic evidence is that the accused leftthe working place for purchase of electrical goods by 12.45 p.m. andreturned back at 3 P.M. The time gap at which each of the witnesses sawthe accused at various places and the sequence arising therefrom, isquite natural and fortifies the case of prosecution that it was theaccused, who alone was present at the scene house while D-1 and D-2 werealone there, and indulged in the heinous crime. PW-2's evidence is thecrossroad which projects the whole version of the prosecution in aclinching and clear manner leaving no doubt for suspicion. 14. The motive part of the prosecution case has been wellspoken to by PW-2 by way of extra judicial confession made to her by theaccused and also through PW-3. As pointed out earlier, PW-2, in herstatement made before the Magistrate under Section 164 Cr.P.C. and whiledeposing before court, consistently stated that the accused had beenwaiting for a right opportunity to have sex with her sister-in-law andon the occurrence, he used the loneliness prevalent in the residence tosatiate his vicious desire. The conduct of PW-3 in coming out to divulgeabout the misconduct of the accused to her husband and PW-1 aftergetting inference from the further details that subsequently surfacedwith regard to the involvement of the accused in the crime would onlyshow the natural sequence in which the witnesses have reacted anddeposed. Much has been argued by the counsel for the appellant by https://hcservices.ecourts.gov.in/hcservices/ pointing out contradictions in the testimonies of the prosecutionwitnesses. According to him, the witnesses acted belatedly and theirpost-event conducts and versions going in line with the prosecution casewould only support the plea of the defence that there were improvementsand concoctions at the instance of the prosecuting agency to rope in theaccused. In the peculiar facts and circumstances of the case, it isclearly seen that the accused played a clever game to project theruthless murders as suicide and thereby attempted to divert the courseof investigation. Actually, he confessed to PW-2 not due to any pricklyfeeling or being ashamed of what he has done, but for his own benefitviz., to threaten and bring her under his control so that she would actas per his instructions and his face could be veiled from being exposedto truth. PW-2 was made to speak over phone as if D1 was speaking andtherefore, at the inception, a strong presumption of murder did noterupt since the situation was too fishy. That being so, the post-eventconduct of the witnesses could not be predicted on specified lines. Suchconduct would vary from person to person as different people reactdifferently under different situations. PW-3 had lost his sister-in-lawand the tender child in a ghastly crime committed by the accused.Following the phone call, PW-3 came to know that the deceased had self-immolated and therefore, the earlier information given to her by D-1about the misconduct of the accused could not prevail over her mind.That being so, the evidence of the aforesaid witnesses cannot bediscarded just because certain trifling inconsistencies have beenpointed out for the sake of argument. Through PW-2 and PW-3, the motiveaspect viz., the accused had a lustful eye towards her sister-in-law,has been proved beyond any scope for doubt. 15. It is seen that the injury on the neck of the accused wasnoticed at the very initial stage of the investigation. PW-20, theDoctor to whom the accused was referred, has stated that the said injurycould have been caused by nail scratch to avoid hugging. Thus, it wouldhave been caused by D-1 in an attempt to resist his advance and furnishcircumstantial support to the case against him. It is very clear that hemust have sustained the injury when he was facing the lady. This aspectalso probablise the case of the prosecution against the accused pointingthe guilt towards him.16. Later, subsequent to the arrest of the accused, confessionwas made by him before the Revenue Divisional Officer and before thejudicial magistrate, who remanded him to judicial custody, of course,the same has not been recorded in the remand order. Further,incriminating materials were seized at his instance. Though by pointingout some vague aspects and relying upon the written statement submittedby the accused, contrary submissions were made, the same do not meritacceptance in view of the clinching materials and strong and unbrokencircumstances available against the accused as pointed out above. https://hcservices.ecourts.gov.in/hcservices/

17. An argument was advanced that the F.I.R. belatedly reachedthe court. It is pertinent to point out that, of course, Section 157Cr.P.C. stipulates forwarding of an FIR to the court of the Magistrateforthwith so that it reaches the court promptly and without any unduedelay and the reason behind the same is to avoid any possibility ofimprovement in the prosecution story and to enable the Magistrate tohave a watch over the progress of the investigation. But invariably,such lacuna on the side of the prosecution would not serve as the solebasis for rejecting the prosecution case particularly where theprosecution produced reliable evidence to prove the guilt of the accusedperson. The Apex Court in umpteen cases has categorically held thatwhen the prosecution has led reliable and acceptable evidence, theveracity of the same is not dislodged by the delay in recording of theFIR and the delay in sending the same to the court. In the peculiarfacts and circumstances of the case, the delay in the F.I.R. reachingthe court would in no way affect the case of the prosecution. In fact,the altered F.I.R reached the court on the same day without any delay. 18. Similarly, referring to the evidence of DW-3, it is arguedthat inasmuch as the accused was present in the Bank on 20.08.2003 forredeeming the jewel pledged, the prosecution version that he wasarrested on the same day is unbelievable. The obscure evidence of DW-3that the accused came to the Bank between 10 A.M. and 2 P.M. seems to bestrange and does not infuse confidence. On the face of the same, if onelooks at the evidence of the Investigating Officer that the accused wasarrested on that day at 1.30 P.M., it would be clear that theprosecution version in that regard is quite acceptable. 19. From the foregoing discussion, the incriminatingcircumstances and materials made available by the prosecution to connectthe appellant with the crime can be categorised as follows:-(i) The appellant, an unmarried person aged about 29, is noneelse than the brother-in-law of D-1, living in the residence of hisbrother as a member of the joint family; under such circumstances, hewas having every access to move with D-1.(ii) As per the evidence of PW-3 and the extra-judicialconfession available through PW-2, the appellant was having a lustfuleye towards D-1 to have sex with her and with that motive, he earliermisbehaved with D-1. The motive assumes great significance inasmuch asits existence is an enlightening factor in a process of presumptivereasoning. https://hcservices.ecourts.gov.in/hcservices/ (iii) D-1 was a lone lady with her child D-2 available at theresidence at the time of occurrence and the appellant, who was lookingfor a right time to slake his lascivious cupidity, utilised suchopportunity and this has been established through the evidence of PW-2.(iv) The accused procured kerosene from PW-2 and utilised thesame for torching the bodies.(v) He subdued and silenced PW-2 under threat and, with herhelp, created a make-believe story that it was a case of suicide. (vi) It is the brother of D-1/PW-1, who set the law in motion bypreferring a written complaint with the police and the allegation wasthat the husband of D-1 along with his family members demanded dowry andill-treated her, due to which, she committed suicide. The evidence ofPW-1 is that D-1 spoke to him over phone at 2 P.M. cautioning that thedemand must be met with instantly. On a careful perusal of thematerials, it appears that the husband of D-1 was not at all present atthat time in the residence and the immediate provocation for D-1 tocontact PW-1 at the instance of her husband is totally absent. PW-8speaks about the absence of the accused from the working place, wherethe husband of the D-1 and his brother the accused were working; in suchcircumstances, the presence of the husband at the relevant time at thescene house is excluded.(vii) Though PW-1 was also made to believe that only due todowry harassment meted out to D-1, she committed suicide, subsequently,during the course of investigation, he came to know the actual state ofaffairs and he vividly clarified the said aspects in his evidence beforecourt.(viii) By examination of CW-1, it has been substantiated thatthe door of the house was not locked from inside and just by placinghands, the door got opened.(ix) The movements and availability of the accused at the scenehouse during the time span at which the offence was committed have beenspoken to in a clear and cogent manner by PWs-4 to 8 and in particularPW-2. The intervals at which the witnesses saw the accused is spoken toby them in a natural manner thereby, the theory of alibi projected hasno legs to stand. Further, PW-8 has specifically stated that the accusedwas absent at the place of work between 12.45 p.m. and 3 P.M. Tosubstantiate the plea of alibi, it is the accused, who has to prove thesame by production of substantive materials, oral and documentary,however, no effort has been taken in that regard at the instance of thedefence. https://hcservices.ecourts.gov.in/hcservices/ (x) The accused was found in a disturbed mental conditionimmediately after the commission of offence and such aspect has beenspoken to by PWs-6 and 7. (xi) The Scientific Assistant PW-16, on a careful scanning ofthe scene of occurrence, has given a positive opinion that the death ofthe deceased was not on account of suicide but due to homicidalviolence. (xii) The injury found on the head of D-1 would clearlycorroborate the prosecution version about the initial part of theoccurrence took place and the medical evidence is quite clear that suchinjury could have been caused by MO-1/Dough Roller; thereby, putting anend to the suicide theory discovered by the defence.(xiii) There was no reason whatsoever for D-1 to commit suicideat the relevant time since there was no immediate provocation for her tocommit such act. Further, the LPG cylinder and kerosene stove found atthe kitchen were in-tact and there is no scope to suggest that D1 setfire to herself or to introduce a case of accident due to explosion.(xiv) Though the oral testimony of the witnesses may givecontradictory versions, of course trivial in nature, things as suchfound at the scene of occurrence, as could be seen from the observationmahazar prepared, and the posture in which the dead bodies were lying,would defeat the plea of self-immolation. Abundant materials have beenadduced to substantiate that the deceased were laid first after beingdriven to a state of unconsciousness and only thereafter, set fire to.Post-mortem certificate corroborated the other materials to arrive at adefinite conclusion that the death of the deceased was due to homicidalviolence.(xv) The injury due to nail scratch found at the neck of theaccused soon after the arrest also affirms the participation of theaccused and no sufficient explanation forthcoming from the defence sidefor such injury. Further, incriminating weapon of offence viz., MO-1,and personal clothing of the accused were recovered pursuant to thestatement made by him. The aforesaid strong circumstances, unerringly and accurately pointingtowards the guilt of the accused, would lead to an irresistibleconclusion that it is the appellant/accused, who alone has committed theghastly crimes. https://hcservices.ecourts.gov.in/hcservices/

20. Coming to the argument advanced on behalf of the State thatthe sentence imposed is not proportionate to the ghastliness of thecrime committed, the following may be added. The object of punishment has been clearly stated in Halsbury'sLaws of England (4th Edn., Vol.II, para 482) as follows:-" 482. Object of punishment.-- The aims ofpunishment are now considered to be retribution, justicedeterrence, reformation and protection and modernsentencing policy reflects a combination of several orall of these aims. The retributive element is intendedto show public revulsion to the offence and to punishthe offender for his wrong conduct. The concept ofjustice as an aim of punishment means both that thepunishment should fit the offence and also that likeoffences should receive similar punishments. Anincreasingly important aspect of punishment isdeterrence and sentences are aimed at deterring not onlythe actual offender from further offences but alsopotential offenders from breaking the law. Theimportance of reformation of the offender is shown bythe growing emphasis laid upon it by much modernlegislation, but judicial opinion towards thisparticular aim is varied and rehabilitation will notusually be accorded precedence over deterrence. Themain aim of punishment in judicial thought, however, isstill the protection of society and the other objectsfrequently receive only secondary consideration whensentences are being decided." In justice-delivery system, courts are conscious and mindful of theproportion between the rigour of offence committed and the penaltyimposed as also its impact on society in general and the victim of thecrime in particular. Penal laws, by and large, adhere to the doctrineof proportionality in prescribing sentences according to culpability ofcriminal conduct. It is the degree of deliberation shown by theoffender in committing a crime which is material. Further, socialimpact of the crime, particularly where it relates to offences againstwomen, cannot be lost sight of and per se requires exemplary treatment.Any liberal attitude of imposition of meagre sentence or too sympatheticview may be counterproductive in the long run and against socialinterest which needs to be cared for, protected and strengthened bystring of deterrence inbuilt in the sentencing system. Publicabhorrence of the crime needs reflection through imposition ofappropriate sentence by the court. In cases where the accused isdirected to undergo life imprisonment, on completion of 14 years of https://hcservices.ecourts.gov.in/hcservices/ sentence, while commuting the sentence and granting remission, weightyreasons must be available and only on satisfaction that the appellanthas completely repented and reformed, he can be sent back to thesociety. But, such remission or commutation is not an universalapplication in cases of all lifers. In this case, keeping in mind thecadaverousness of the crime, the trial court imposed life imprisonment(2 counts) on the accused and such sentence should be looked at in termsof the rigour with which it would operate, for, the Supreme Court hastime and again held in umpteen number of its Judgments that in such acase, where an imprisonment for life is ordered, it would mean that itis for life and the accused must be in custody for the whole of hislife. Accordingly, it is clarified that the appellant/accused wouldserve the sentence until he breathes his last. 21. The trial court elaborately and exhaustively consideredall relevant aspects and reached at a right conclusion to hold againstthe accused/appellant. There is no valid ground for interfering withthe order of conviction and sentence passed by the trial court;consequently, the appeal fails and the same stands dismissed.22. It must be appreciatively mentioned that bothMr.K.V.Sridharan, learned counsel for the petitioner, and Mr.N.R.Elango,learned Additional Public Prosecutor, eruditely strengthened their ownspectrum of submissions, succinctly meeting point by point with juristicnicety and persuasive precision. 22-A. Before parting, I intend to place on record this Court'sappreciation for Thiru.P.Ettiyappan, the Scientific Officer, examined asPW-16 in this case, but for whom, the offence committed by the accusedcould not have been brought to light. Only on the basis of the definiteopinion given by him after a wide-awake scrutiny of the scene ofoccurrence, scanning of the materials found thereat, posture of the deadbodies etc., the Investigating Agency could proceed in a right direction. This Court's appreciation also goes to the Investigating Team, inparticular, Thiru.K.Palanivel (Deputy Superintendent of Police/PW-30),who commenced investigation from 15.08.2003 and Thiru.A.G.PonnManickavel (Superintendent of Police/PW-31), who took up furtherinvestigation on 19.08.2003. Under normal circumstances, aSuperintendent of Police, though vested with the authority ofsupervising the investigation, will not himself take up theinvestigation; but, in the case on hand, the Officer, assessing theseriousness of the offence committed, himself took up the task andconducted further investigation of the case. The offence had takenplace within a short span of about about one hour and the accusedmeticulously planned to screen the offence and set up things to projectas if it was a case of suicide. But for the perspicacity and strenuous https://hcservices.ecourts.gov.in/hcservices/ efforts of the Investigating Officers in unearthing the truth, a guileand cunning person like the appellant would have definitely slipped thenet. With the clue of intelligence available, these efficient Officers,vested with all skills of investigation and commitment to the jobentrusted with, succeeded in chasing and catching the real culprit. Evenif there was a minor lapse or deviation or side-tracking in the courseof investigation, due to the cunningness of the accused, the crimecommitted by him would have gone unnoticed. It is only because of thewakeful investigation by the D.S.P. and the S.P., the truth came tosurface. Hence, they deserve all appreciation in this regard.23. Finally, certain vital aspects for necessary follow-upaction may be ciphered up here-under. Crime is an act of warfare against community touching newdepths of lawlessness. Abrupt increase of crime rates in the country hasseriously to be taken note of. Investigation is the hub of criminaljurisprudence but unfortunately adequate attention has not been paid toit. It is during investigation that the basic facts relating to a crimeare enquired into, and the particulars gathered during the investigationare placed before court. Unless there is an efficient, prompt and fairinvestigation, justice in criminal cases cannot be ensured. Even incases where the accused is nabbed early, full facts about the crime canonly be ascertained by effective police investigation. The mostimportant factor in preventing and deterring crime is the frequency withwhich those who commit crimes are arrested, prosecuted, convicted andpunished. For achieving the said purpose, it is imperative that changesare effected in the investigative processes. Scientific investigationshould substitute the conventional ones. Arduous efforts should be madeto improve the system in order to increase the certainty of convictionand punishment for the most serious offenders and repeaters. For thebetter administration of criminal justice, recidivists, career criminalsand violent offenders need to be prosecuted expeditiously in a selectivemanner because these offenders pose a serious threat to the society. It is heartening to note that the alarming proportion betweenthe crime rate and conviction rate is quite disturbing. In spite of thescientific advancement and its impact in the field of crimeinvestigation, the rate of conviction is abruptly decreasing. Naturally,the reasons attributed would be faulty investigation, non-production ofsufficient materials before court or callousness on the part of theinvestigating agency. The Station House Officers, amongst various otherassignments, also entrusted with the job of investigation of crimes. Itis unfortunate to note that, in most of the cases, the concernedofficer, shirks the responsibility and shift the same to the shouldersof his subordinates being unmindful of the adverse consequences thatwould erupt. When investigation of serious crimes is entrusted to https://hcservices.ecourts.gov.in/hcservices/ subordinate officials including constables, acquittal becomes inevitablein spite of catching the actual culprit and producing him before court.Unless an officer is hand and foot assigned for conducting investigationof a case in a full-fledged manner and pursuing the same in a court oflaw, it would be impossible to occlude the resultant failures in theadministration of criminal justice, leading to wrong acquittals. In such circumstances, suggestion is made to the Government toestablish a separate "Crime Investigation Wing" exclusively forinvestigation, prosecution and to take necessary follow-up action, asfound in the developed countries in order to attain the avowedobjectives of the criminal justice and administration system.Registry is directed to communicate copy of this Judgement tothe Secretary to Government, Government of Tamil Nadu, and the DirectorGeneral of Police, Tamil Nadu.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.JI.To1. The Chief Secretary to Govt., Govt. of Tamil Nadu, Fort St. George, Chennai.2. The Director General of Police, Tamil Nadu.3. I Additional Sessions Judge, Salem.4. Do thro' The Principal Sessions Judge, Salem.5. The Secretary, Home Department, Secretariate, Chennai. https://hcservices.ecourts.gov.in/hcservices/

6. The Superintendent, Central Prison, Coimbatore.7. The Superintendent of Police, Salem District, Salem.8. The District Collector, Salem.9. The Public prosecutor, High Court, Madras.+ one cc to Mr. K.V. Sridharan, Advocate, SR.23550CMP(CO)RP 30.04.08 Crl.A. No.792/2007.