Kerala High Court · 2007

DSR.1/2007 and Crl.A.Nos.1062and1119/200632nd accused, who brought it to the rented house of PW2 at Mundakkalto administer it to her husband. By about 8 p.m. on 15.4.2000, the 2ndaccused made Vidhukumaran Thampi to consume Phenobarbitonepowder in over-dose telling him that it is a medicine for esnophilia .Since the deceased did not die and remained in a semi-consciousstage, the 2nd accused invited the 1st accused to their house to kill theformer. Accused 1 and 2 again administered the deceased with thepoisonous tablet powder at 9.30 p.m. and as they could not get theexpected death of the deceased, the 1st accused tried to kill him bystrangulation holding around his neck. When the deceased criedaloud exclamating he may be killed, the 2nd accused tried to close hismouth using her right hand. The deceased bit and injured the middlefinger of the right hand of the 2nd accused and when neighbours werecollected outside the house, the accused took him to the house atKumarapuram in the car of CW5 at about 12.45 p.m. Thereafternobody has seen the deceased alive. On 16.4.2000, the deceased wasgiven Phenobarbitone poison repeatedly in different food items. It isalso alleged that on 17.4.2000 the first accused purchased Furidonfrom CW40 (PW52), dissolved the same in water and injected it intothe body of the deceased using the syringe and needle purchasedfrom CW38(PW33). The deceased died on 18.4.2000. The accused 1and 2 packed the naked dead body of Vidhukumaran Thampi in a DSR.1/2007 and Crl.A.Nos.1062and1119/20064plastic mat using plastic rope and coir and enclosed the same in abed-holder, carried it in the dickey of the taxi car bearing registrationNo.KL-4A-6595 driven by PW3 and threw the dead body into a valleyat the 6th hair-pin curve in the Ootty-Mettupalayam road at about 1.30a.m. on 19.4.2000. Hence, they have committed the offencespunishable under Sections 120B, 201, 364 and 302 read with Section34 of the Indian Penal Code.3. Counsel for the first appellant at the outset submittedthat despite the cruel nature of the crime, the court should not bebiased by emotional consideration and appreciation of evidenceshould be in a dispassionate judicial consideration and in a cooldetached manner. We agree with the above submission as it issettled law as held by the Supreme Court in Balwinder Singh v.State of Punjab (AIR 1996 SC 607) and Mundrika Mahto andothers v. State of Bihar (2002 AIR SCW 2093). It was pointed outthat there were many defects in the charges framed by the court andalso in the investigation. We are of the view that criminal justice isconcerned with finding of the truth by considering the admissibleevidence adduced in the court. Our effort is not to find out thedefects in the investigation with a microscope or to decide the case onhyper- technicalities. Apex Court in State of Karnataka v. DSR.1/2007 and Crl.A.Nos.1062and1119/20065K.Yarappa Reddy (AIR 2000 SC 185) held that criminal justiceshould not be made the casualty of the wrongs done by theInvestigating Officers. It has been consistently held by the SupremeCourt that on the basis of admissible evidence if the court comes tothe conclusion that prosecution was not able to prove the case, theaccused has to be acquitted. It is the duty of the prosecution to provethe case, either by direct evidence or by circumstantial evidence,beyond reasonable doubt and benefit of reasonable doubt should begiven to the accused as no innocent person can be punished. At thesame time, it is the duty of the court to see that if there are enoughmaterials to show that the accused is guilty, he should not go un-punished as it will result in failure of justice. Irregularity or illegalityin investigation is of no consequence when there is clear evidenceotherwise as held by the Apex Court in Bikau Pandey and others v.State of Bihar (AIR 2004 SC 997) and State of Rajasthan v.Kishore (AIR 1996 SC 3035). Even if the reasoning of the trial courtin certain points are not acceptable, the appellate court has got all thepowers of the trial court and our endeavor in this case is to gothrough the evidence, take the admissible part only and find out thegrain leaving the chaff and also to consider whether there areadmissible evidence to justify the conviction entered by the trial court.Therefore, instead of searching out the investigation defects, we are DSR.1/2007 and Crl.A.Nos.1062and1119/20066considering the only question whether on the basis of legallyadmissible evidence, there are materials to come to the conclusionthat the accused are guilty beyond reasonable doubt or not.4. PW1, brother of the deceased gave first informationstatement. He is a Head Constable of Police by profession and he wasworking in the Crime Branch during the relevant time. He deposedbefore the court that the 2nd accused is the wife of the deceased and1st accused is her paramour. He stated that on 21.4.2000 when hewas on duty in Poojappura Police Station, PW2 telephoned and statedthat PW1's brother and wife had some talk and brother is not seenand he should come immediately. When he went there, he learnt thatthe discorded talk (കശപ(cid:4)ശ സ(cid:7)സ(cid:8)ര(cid:7)) was on 15.4.2000 and thereafterhis brother was missing. Hence, Ext.P1 F.I. Statement was given. Healso stated that the deceased, his wife and their daughter werestaying at Mundakkal, Kollam. Earlier his brother was staying nearPangode Military Camp. He married the 2nd accused without theconsent of the relatives. Thereafter, they were staying in the rentedhouse at Pangode and an illicit relationship was developed by the 1staccused with the 2nd accused. To escape from that, the deceased tookthe rented house at Kollam and that is why his brother and wifestarted residing at Kollam. He further stated that he got the DSR.1/2007 and Crl.A.Nos.1062and1119/20067telephone call on 21.4.2000 stating that on 15.4.2000 there weresome discorded talk between the deceased and the 2nd accused andthereafter the deceased was not seen. It was stated by PW1 that hegot information from the neighbours that on 15.4.2000 accused 1 and2 together took his brother in a car. Thereafter on 23.4.2000 heidentified his brother's body in a green bed-roll at the 6th hair pincurve on the route to Ooty. It was also stated that while the 1staccused was taken to the place of incident, PW1 was also taken thereby the police and body was found at the place pointed out by the firstaccused. He identified the dead body. His statement was also takenat the time of inquest. He also produced Ext.P2 series complaintswritten to the police by the deceased against the 1st accused. He alsoclarified that when PW2 telephoned him, it was stated that the talkbetween the deceased and his wife was not cordial (കശപ(cid:4)ശ സ(cid:7)സ(cid:8)ര(cid:7)).In cross examination he stated that he is not aware whether accused 1and 2 lived as husband and wife. He also stated that even though hedid not like the marriage between the deceased and 2nd accused, theirrelationship was not inimical.5. PW2 is a crucial witness. It is her house that thedeceased and 2nd accused took on rent and were residing there. She,PW10 (her son) and her husband were living in that house. She stated DSR.1/2007 and Crl.A.Nos.1062and1119/20068that the 2nd accused, her husband Vinod and their daughter (PW9)started to live in their house from 16.1.2000 onwards and there wereno serious disputes in their life. They were not co-operative with theneighbours. After one week the deceased who took the house on rentin the name of Vinod stated that he was called Thampi by all people.He also stated to her that he was a Supervisor in PWD and he has gota transfer to Kollam. PW2 also stated that it is the 2nd accused whotold her that the name of her husband is Vinod. The stamp paper waspurchased in the name of Vinod. According to her, the 2nd accusedasked her to change the rent deed in her name. On April 9th Sundaywhen she was about to go to the church, the 2nd accused and herdaughter told her that they were going to their house at Attingal. Theycame back only on 12th. On 12th when Thampi came to her house forreading newspaper, he stated that he was not vacating the house. But,according to her, the 2nd accused told her that they were going toAttingal for getting a transfer to Vinod. PW2 further stated that the2nd accused asked her whether there are ceiling for all rooms and shefelt suspicion in that question. On 14th April rent was sent throughher daughter PW9 and PW2 went towards their room. When she wasstanding outside, the 2nd accused told her that 'this is the last rent.'When she asked about that, the 2nd accused stated that no more rent( ഇന(cid:4) ഒര(cid:13) വ(cid:8)ടക ഇല). The 2nd accused did not invite her to the house. DSR.1/2007 and Crl.A.Nos.1062and1119/20069The witness also added that the 2nd accused did not take anybodyinside the house. They used to close the doors and windows. Whenshe asked whether they will vacate the house next day, A2 stated thatThampi went to know regarding transfer and most probably they willvacate on the next day. On the next day she saw Thampi drawingwater from the well. At 2.30 p.m. the 2nd accused came to the room ofPW2 to have a call from her telephone. She dialled a local numberand started conversation introducing her as wife of Vinod and askedfor getting Vinod. After getting him she stated that come only at 6.30-7 p.m. When PW2 asked to whom she was speaking, A2 stated thatshe was talking to Vinod (her husband) regarding the question oftransfer. She also stated that in the night brother will come for takingthe household articles. At that time, the bike driven by Thampi wasthere and, therefore, PW2 asked whether Thampi has gone in thebike. Then the 2nd accused stated that he went in another vehicle.PW2 started suspicion on seeing the bike. Then the 2nd accused statedthat she was having head-ache and PW2 replied that it may bemigrane which is caused due to tension. At 4-4.30 p.m. PW2 heardmurmurs and groaning from their room and it was that of Thampi.Then the radio started playing loudly in their room. She told her sonthat Thampi was in the room. At night 8.30 p.m. 2nd accused came totheir house for making a telephone call. She was in a perplexed DSR.1/2007 and Crl.A.Nos.1062and1119/200610condition. She telephoned to a mobile number saying that why somuch delay (എന(cid:8) ഇത(cid:20)യ(cid:13)(cid:7) (cid:20)(cid:8)മസ(cid:4)ക(cid:13)ന(cid:20)(cid:25)). She was in a difficult moodand PW2 thought that it might be due to migrane. PW2 also wentoutside along with her, but, she closed the door. Then through theopening panel of the window PW2 asked when the advance is to bereturned. That was replied stating that Monday she will telephoneher. At 9.30 p.m. PW2 found an ambassador car coming in thereverse direction and it was parked very close to the room of the 2ndaccused. Husband of PW2 and her their children were seeing theT.V. Serial `Jai Hanuman'. Then a man who got down from the carwithout showing the face immediately got into the room of 2ndaccused. There was a driver also in the car. The cooling glass of thecar was closed. Immediately, the person who got down from the carentered the house. All the lights were switched off, but, T.V. andradio were playing loudly. When PW2 went to her kitchen, she hearda screaming sound that `I am to be killed' `who is catching me'(“എനന നക(cid:8)ല(cid:13)നന ആര(cid:8) എനന പ(cid:4)ട(cid:4)ക(cid:13)ന(cid:20)(cid:25)”). The above sound washeard from the room of the 2nd accused. She felt that some push andpull were taking place in that room and they were frightened. Sheunderstood that the above sound was from Thampi. Again she hearda cry stating that “I am being killed” (“എനന നക(cid:8)ല(cid:13)നന “). PW2 went DSR.1/2007 and Crl.A.Nos.1062and1119/200611near their kitchen side, but, it was dark and daughter of the 2ndaccused was calling her `anti anti' and she was crying. When shewent there, CW3, her husband, and PW10, her son were present.Neighbours also gathered. Then the room of A2 was opened andthe person who got down from the car was coming to the car. PW2asked him what happened. Then he replied showing signs that thedeceased has become mentally ill “(cid:20)ലയ(cid:25)ക(cid:13) നല സ(cid:13)ഖമ(cid:4)ല”. Thinkingthat somebody got shock, her son (PW10) switched off the mainswitch. When PW2 was going to the room of A2 she also saw thatdeceased Thampi who was trying to go outside was forcibly takeninside the room by A2. When A2 pushed Thampi inside, PW2 camenear to the car. Then her son switched on the main switch. By thattime, the person who came in the car was standing there. She askedhim who is he. He stated that nobody (ആര(cid:13)മല). When PW2 statedthat A2 told her that her brother will come, he replied that he is herbrother. She asked what happened to the deceased, then it wasanswered that he was lying after consuming liquor. He was in aperplexed mood. PW2 asked A2 to open the room, but, light was notswitched on inside the room. When she compelled, one panel of thedoor was opened by A2 and she stated that next day an operation hadto be conducted to Thampi as there was something wrong with his DSR.1/2007 and Crl.A.Nos.1062and1119/200612nerve, that Thampi was frightened for operation and that is why hewas crying aloud. Later when she peeped through the panel of thedoor, she saw Thampi sitting near the door and asking A2 `whotouched him'. Then A2 told him that next day he had to go for anoperation. According to the witness, she was only acting to be heardby her. She also stated that Thampi has got `genny' (a type of highfever) and he bite her finger and injured. At 10 O' Clock A2 and theperson who stated to be the brother took Thampi forcibly into the carand told PW2 that they were going to see the doctor. A2, herdaughter and the deceased Thampi sat in the back seat. The personwho stated to be the brother took the front seat. At the time when thevehicle started, A2 told her after lowering the glass little that next dayshe will call her. According to PW2, it was a white ambassador carbearing registration No.KL-2 E-5286. After half an hour, the personwho was stated to be the brother and daughter of A2 came in anautorickshaw. Autorickshaw was stopped on the road side. WhenPW2 asked about Thampi, he replied that Thampi was taken to theGeneral Hospital, Kollam. After 15 minutes they came out and theywere having a bottle with water and a bag. He also told to the peoplestanding outside that Thampi was in an unconscious stage. After theywent back in the autorickshaw, PW2 telephoned to the DistrictHospital, Kollam and learned that nobody by name `Thampi' or DSR.1/2007 and Crl.A.Nos.1062and1119/200613`Vinod' was admitted in the hospital. On 17.4.2000 A2 telephoned herand stated that she was calling from her house at Attingal, she willcome on Saturday for taking the household articles and advance rentshould be returned on that day. Then PW2 asked her why she did notstate that Thampi was in the house on 15.4.2000, she stated thatwhen Thampi came back, PW2 was praying. She further stated thatThampi had an accident three months ago and there was bleedingthrough the ear. Since A2 was talking contrary versions, PW2 askedher to give the phone to Thampi. At that time, she stated that doctorhas given sedation to him and he is taking rest. PW2 also informedher that advance money can be given only if Thampi comes as she hasgot some doubts and if necessary cheque can be given. Then thetelephone was cut. On 21.4.2000 she telephoned PW1 at PoojappuraPolice Station that from 15.4.2000 onwards Thampi was not seen andimmediately to come there. On 22.4.2000 the person who stated to bethe brother and A2 came in a mini lorry for taking the householdarticles. PW9 (daughter of A2) was also with them. When she askedabout Thampi, A2 stated that he was not well. A2 told that his handscannot be moved and there will be an operation. When PW2 told thatshe will telephone to police, A2 replied that why should police beinformed and whether PW2 will compensate her if she is ashamed bythe people and she wanted to go from there without taking back the DSR.1/2007 and Crl.A.Nos.1062and1119/200614advance and articles stating that she did not want the advance orhousehold articles. But, they did not permit it and police was called.Police came there and questioned A2 and the person whoaccompanied her as brother . They also learned that the name of thatperson was Raju, he was in the Army and the real name of the personwho was residing with A2 was Vidhukumaran Thampi. Police tookthem to the police station. It was stated by PW2 that Rs.5,000/= wasgiven as advance and Rs.850/= was the monthly rent. It was alsostated that on one side of her house there was a visiting room, bedroom and kitchen and those three rooms were given on rent. Throughthe same courtyard one has to enter in the visiting room. Sheidentified A1 as the person who came there as brother and tookThampi in the car. She got suspicion over them relating to missing ofThampi. She was separately cross examined on behalf of A1 and A2even though A1 and A2 were represented by the same advocatesbefore the trial court. Evidence of PW2 is fully supported by PW10,son of PW2. PW5 and PW15 are neighbours living very close to thehouse of PW2. They also identified A1 and A2 and they also statedthat those persons came there for taking out household articles.Nothing came out from the cross examination of PW2. The evidenceof PW5 and PW15 neighbours fully supported the evidence of PW2.Even though another neighbour (PW6) became hostile, he did not DSR.1/2007 and Crl.A.Nos.1062and1119/200615support the prosecution. His evidence was not helpful to the defencealso.6. PW5 was residing very close to the house of PW2. Hedeposed that A2 and deceased lived in the house of PW2 on rent. On15.4.2000 at about 9.30 p.m. while seeing T.V., he heard a sound.When he entered the courtyard, he saw deceased was taken in a carby A1 and A2 together. Later he saw them when they came togetherto take articles from the house. Only when he saw the newspaper heunderstood that A1 was the paramour of A2. PW15 is also a closeneighbour of PW2. He also deposed that A2, deceased and theirdaughter were living in the house of PW2 on rent. One day while hewas watching T.V. he heard a sound “അന (cid:8)”. When he looked, hesaw an ambassador car came in reverse and parked near the house ofPW2 and he saw A1 and A2 together taking the husband of A2 in theambassador car telling that Thampi is not well. He identified A1.PW2 told him that A2 introduced to her A1 as her brother. He statedthat it was on 15.4.2000, he was not sure about the date. On22.4.2000, accused together came with a lorry to take away thearticles in the rented house and to demand advance from PW2. PW2stated that unless husband of A2 came she will not return theadvance. As advised by PW15, she also called broker. PW2 called DSR.1/2007 and Crl.A.Nos.1062and1119/200616police and police has taken the accused to the police station. He alsostated that he saw A1 and A2 together taking the deceased in theambassador car. PW10, son of PW2, deposed in terms of deposition ofPW2. Evidence of PW2 is fully corroborated by evidence of PWs 5, 10and 15 and their evidence was not shattered in cross examination.We see no ground to disbelieve the evidence of PW2 corroborated byevidence of PWs 5, 10 and 15.7. PW3 is another star witness. He was declared hostile.According to the prosecution, it is PW3 who was alleged to have takenthe dead body to Ooty in the taxi car bearing registration No.KL-4A-6595. In the chief examination he stated that he is a lorry driver andduring 2000 he was driving a trucker. He stated that he never drivenan ambassador car and he was very positive that he never drove thecar bearing registration No.KL-4A-6595. He also stated that on18.4.2000 morning he did not go to the house of A1 in the rentedhouse at Kumarapuram. He was very positive that he never travelledwith the accused or their daughter to Ooty and he has not statedanything to the police. After declaring hostile public prosecutor waspermitted to put questions in cross examination. In cross examinationalso he was very positive that he never went to Ooty and the entire161 statement recorded by the police were denied by him. It has DSR.1/2007 and Crl.A.Nos.1062and1119/200617come out in record that PW3 was prosecuted for perjury in M.C.No.35of 2006 in S.C.No.998 of 2004 and he was sentenced to undergorigorous imprisonment for three months and to pay a fine of Rs.500/=under Section 344 Cr.P.C. In that case, he admitted that he wasforced to depose like that in view of the pressure of A1. Anyway, weare not concerned with the evidence in the perjury case and we arenot considering the same while appreciating the evidence in this case.In this connection, we refer to the evidence of PW11, the owner ofthe Car KL-4A-6595. PW11 stated that he was the owner of the abovecar. He also stated that the above car was driven by Pradeep (PW3)during 2000 and his services were terminated because he has taken adead body to Ooty. This car was taken into custody by the police andhe took the car on bond. It is also stated that after returning fromOoty he gave the amount for the trip to Ooty. The car was having AllIndia permit. The way bill given by Pradeep was entrusted with thepolice. Police has taken the car into custody on the 2nd day afterreturning from Ooty. PWs 13, 54 and 55 also support the case thatthis car KL-4A-6595 was taken to Ooty on those days. In thesecircumstances, we disbelieve the evidence of PW3 and on the basis ofevidence of PW11, 13, 31, 32, 54 and 55 we find that PW3 was thedriver of the car KL-4A-6595 owned by PW11. PW13 deposed that A1came to Ooty with an ambassador car for repairs on 19.4.2000. PW48 DSR.1/2007 and Crl.A.Nos.1062and1119/200618Panchayat Secretary deposed that KL-4A-6595 owned by PW11 wasdriven by PW3 during the relevant period. PW3 was living fourhouses away from his house. On his request, PW3 was given the jobof driver by PW11. When police came, he showed the house of PW3 topolice. When he was examined again, he deposed that in MO VII(a)(1)photograph which was taken on the side of a lake, photo of PW3 isalso seen. PW54 who is conducting lodge in Coonoor near Ootydeposed that A1 took two rooms on 19.4.2000 and he has identifiedphotos marked as MO VII(a) series as taken in Ooty near lake etc.PW55 also deposed regarding the photos. Exts.P11, P11(a) and (b)proved by PW31 shows that Tourist Taxi KL-4A-6595 owned by PW11passed through Chavady check post (Tamil Nadu) and witness provedtax receipts Exts.P11(a) and P11(b) which are receipts kept in theordinary course of business. Evidence of PW32 shows that KL-4A-6595 was seized by the police by Ext.P12 mahazar on 22.4.2000. 8. Now, we will come to the evidence of PW4. He statedthat he was a tempo driver and he denied his 161 statement that hehas taken the deceased Thampi, his daughter and accused 1 and 2 inthe car on 15.4.2000 to the house at Kumarapuram from the house ofPW2. He was declared hostile, but, prosecution was permitted tocross-examine. He stated that he is not aware who is the owner of the DSR.1/2007 and Crl.A.Nos.1062and1119/200619car bearing registration No.KL-2 E-5286, but, when asked pointedlyhe stated that he cannot deny that he has never driven KL-2 E-5286.He stated that he is not remembering. Later he denied it. He wascompletely hostile to the prosecution. PW27, owner of the car, statedthat the car belongs to his daughter and he is managing the same. Hewas declared hostile and he has denied his 161 statement and statedthat at that time the vehicle was looked after by the father-in-law ofhis daughter and he cannot say anything whether it was used as taxiat that time etc. His evidence was not helpful to the prosecution aswell as to the accused.9. PW7 deposed that he was working as Manager ofAramath Madom Lodge in Karunagappally. According to him, theaccused were known to him and they stayed in a room in the abovelodge ( തപ(cid:20)(cid:4)കന! അറ(cid:4)യ(cid:8)(cid:7). ഇവര ട(cid:4) നല(cid:8)ഡ(cid:25)&(cid:4)ല റ((cid:7) എട(cid:13)ത(cid:25) (cid:20)(cid:8)മസ(cid:4)ച(cid:4)ര(cid:13)ന(cid:13).). Itwas room No.204 which was taken on 11.4.2000 and it was taken inthe name of Vinod. The room was vacated on 15.4.2000 at about 8p.m. and at that time he was in the reception duty. On the day whenthe room was vacated, a telephone call came asking for Vinod and heheard Vinod stating that whether medicine was administered as toldby him, whether he was sleeping and whether should he come. (“ഞ(cid:8)നപറഞ(cid:20)(cid:13)നപ(cid:8)നല മര(cid:13)ന(cid:13) നക(cid:8)ട(cid:13)നത(cid:8)ഉറങ(cid:4)നയ(cid:8)ഞ(cid:8)ന വരന0എന(cid:8)ണ(cid:25)? ? '' DSR.1/2007 and Crl.A.Nos.1062and1119/200620വ(cid:4)നന(cid:8)ദ(cid:25) ന3(cid:8)ണ(cid:4)ല സ(cid:7)സ(cid:8)ര(cid:4)ച(cid:20)(cid:25).) Immediately after the telephone call,he vacated the room. PW7 also identified both accused as personswho stayed in the lodge together, but, in cross examination he statedthat he is not aware to whom he talked over the phone. According tothe prosecution, this supports the evidence of PW2 regarding thetelephone call made at about 8.30 p.m. on that day to one Vinod by A2and later A1 arrived in an ambassador car by 9.30 p.m. A2introduced A1 as her brother. According to the prosecution, itproved the charge of conspiracy also. Since the second accused wasliving with her husband in the house of PW2 which was taken on rentin the name of Vinod and the room in the lodge was taken by A1 inthe very same name, it will show that there was a previous plan andit was as per that plan A1 asked A2 whether medicine wasadministered, whether the deceased started sleeping etc. This willprove the offence of criminal conspiracy. In this connection, we shallalso consider the evidence of PW30. He was also working as theManager of Karunagappally Amarathumadom tourist home. He statedthat as per the inmate register, Room No.204 was taken by one Vinod.T.A.I., V.S.S.C., Peroorkada, Thiruvananthapuram on 11.4.2000 at10.30 p.m. and it was vacated at 8 p.m. on 15.4.2000 and PW7 wasdoing duty at that time. That part of his evidence corroborates theevidence of PW7. He also stated that police has shown him the person DSR.1/2007 and Crl.A.Nos.1062and1119/200621who took the room and he has identified him, but he cannot positivelyidentify A1 as the person who took the room as thereafter he has notseen him again and he cannot remember clearly. He further statedthat Room No.204 is a double room. Exts.P10 and P10(a) weremarked. During cross examination by A1 it is stated that as perExt.P10 register it was taken for the stay of a person. He also statedthat on all days same person need not be the Manager. PW36attested the mahazar when the police seized Ext.P10 registers fromthe lodge.10. PW8 stated that she knew A1. She has rented out herhouse at Kumarapuram to him after getting Rs.10,000/= as advance.Rs.1,500/= was the monthly rent. But, the rent deed was given in thename of one Santhosh Kumar. A1 told her that he has a wife and achild. When he gave the advance, he stated that wife and child weresitting in the autorickshaw. Only from the newspapers she came toknow that actually Santhosh Kumar who took the house on rent wasthe first accused Raju. She also stated that one or two times Rajucame to the house of her sister for giving rent and she has seen him.So evidence of PW8 shows that A1 has taken out the house atKumarapuram on 12.10.1999, but, he has taken the house in the nameof Santhosh Kumar. DSR.1/2007 and Crl.A.Nos.1062and1119/20062211. Now, we will come to the evidence of PW9, child of the2nd accused and deceased. She was examined in court on 15.4.2005after five years of the incident. She was only nine years and wasstudying in the 4th Standard at the time of incident. Deposition showsthat she was tutored as she stated in the beginning that `I do notknow' (എന(cid:4)കറ(cid:4)യത(cid:4)ല). It is recorded by the trial Judge that whenshe was asked questions, she started saying `I don't know', evenwithout taking any time, but, she stated that one Asha was sittingnear her in the school and she was not aware whether she got moremarks than Asha or not. She also stated that she got `A' grade in theschool and progress report is being signed by her mother. But, sheanswered questions of general knowledge correctly. After puttingcertain questions trial court entered an opinion as follows:“The witness is very active, intelligent andcapable of answering questions. But she showssome sort of ready hesitation to answer pastevents and questions relating to years within hermemory.”She stated that she is not remembering any incident on 15.4.2000 andshe is not aware whether mother has conducted a business in a shop.Sine she has completely denied 161 statement, she was allowed to be DSR.1/2007 and Crl.A.Nos.1062and1119/200623cross examined by public prosecutor. She was recalled on 27.6.2005as photos were developed from the camera seized from the house ofA1 as ordered by the Sessions Judge. Some photos were shown to herand she stated that she identified photo of A1 as the person who wasstanding in the box, but, she cannot say whether the woman in thephoto was her mother or not as she has not seen her mother in aphoto. (ന(cid:8)!(cid:4)(cid:20)(cid:13)വനര ഞ(cid:8)ന അമനയ ന3(cid:8)ന0(cid:8)യ(cid:4)ല കണ(cid:4)0(cid:4)ല.) When she hasshown her own photo, she stated that she cannot say whether it is herphoto or not. Then she has shown a photo of a child sitting on ahorse and she stated that she cannot say whether it is her photo, but,among the photos, in 11 photos she admitted that A1 was present andthe only difference was that in the photo there was no beard, but, theperson in the box was having beard and she admitted that in fivephotos A1 was seen embracing her. She further stated that thewoman standing near A1 was her mother and in the four photos A1has put hands on her mother's shoulder, but, she cannot identifywhether it was taken in a garden. In four photos a lake can be seenand out of the above in two photos her mother and A1 were there. Itis recorded as follows:എനന ഇന6(cid:8)ള ക(cid:8)ണ(cid:4)ച ന3(cid:8)ന0(cid:8)ക!(cid:4)ല “11 എണത(cid:4)ലതപ(cid:20)(cid:4)ക(0(cid:4)ല ന(cid:4)ലക(cid:13)ന അങ(cid:4)ള ഉണ(cid:25). ന3(cid:8)ന0(cid:8)യ(cid:4)ലക(cid:8)ണ(cid:13)ന അങ(cid:4)!(cid:4)ന(cid:13) (cid:20)(cid:8)ട(cid:4) ഇല. ഇന6(cid:8)ള ക(0(cid:4)ല ന(cid:4)ലക(cid:13)ന DSR.1/2007 and Crl.A.Nos.1062and1119/200624അങ(cid:4)!(cid:4)ന(cid:25) (cid:20)(cid:8)ട(cid:4) ഉണ(cid:25). എനന ഇന6(cid:8)ള ക(cid:8)ണ(cid:4)ച 5ന3(cid:8)ന0(cid:8)ക!(cid:4)ല ഈ അങ(cid:4)ള ക(cid:13)0(cid:4)നയ നക0(cid:4)6(cid:4)ട(cid:4)ച(cid:13)നക(cid:8)ണ(cid:25)ന(cid:4)ലക(cid:13)ന(cid:20)(cid:8)യ(cid:4)0(cid:8)ണ(cid:25)ക(cid:8)ണ(cid:13)ന(cid:20)(cid:25). ഈ ന3(cid:8)ന0(cid:8)ക!(cid:4)ലഅങ(cid:4)!(cid:4)നനറ ക(നട ന(cid:4)ലക(cid:13)ന സ(cid:25)ത(cid:20);യ(cid:8)ണ(cid:25) ഇന6(cid:8)ളതപ(cid:20)(cid:4)ക(0(cid:4)ല ഈ അങ(cid:4)!(cid:4)നനറ അട(cid:13)ത(cid:25) ന(cid:4)ലക(cid:13)ന(cid:20)(cid:25) എന(cid:13)പറയ(cid:13)ന(cid:20)(cid:25) ശര(cid:4)യ(cid:8)ണ(cid:25). ഈ ന3(cid:8)ന0(cid:8)യ(cid:4)ല ക(cid:8)ണ(cid:13)ന സത(cid:20);എനനറ അമയ(cid:8)ണ(cid:25) എന(cid:13) പറയ(cid:13)ന(cid:20)(cid:25) ശര(cid:4)യ(cid:8)ണ(cid:25).അങ(cid:4)ള അമയ(cid:13)നട ന(cid:20)(cid:8)!(cid:4)ല ക (cid:4)0(cid:13) നക0(cid:4)6(cid:4)ട(cid:4)ച(cid:13)ന(cid:4)ലക(cid:13)ന(cid:20)(cid:8)യ(cid:4) എനന ഇന6(cid:8)ള ക(cid:8)ണ(cid:4)ച 4 ന3(cid:8)ന0(cid:8)ക!(cid:4)ലക(cid:8)ണ(cid:13)ന(cid:13). ഈ ന3(cid:8)ന0(cid:8)ക!(cid:4)ല (cid:20)ട(cid:8)ക(cid:7) ഉള സല(cid:7)ക(cid:8)ണ(cid:13)ന(cid:13). പ(നന(cid:8)0മ(cid:8)നണ(cid:8) എനന ഇന6(cid:8)ള ക(cid:8)ണ(cid:4)ചന3(cid:8)ന0(cid:8)യ(cid:4)നല സല(cid:7) എനറ(cid:4)യ(cid:4)ല. എനന ഇന6(cid:8)ള ക(cid:8)ണ(cid:4)ച4 ന3(cid:8)ന0(cid:8)ക!(cid:4)ല (cid:20)ട(cid:8)ക(cid:7) ക(cid:8)ണ(cid:13)ന(cid:13)ണ(cid:25). അവയ(cid:4)ലരനണണത(cid:4)ല തപ(cid:20)(cid:4)ക(0(cid:4)ല ന(cid:4)ലക(cid:13)ന അങ(cid:4)!(cid:13)(cid:7) അമയ(cid:13)(cid:7)ഉണ(cid:25). ”Thereafter it was recorded by the trial court that defence counselprompted and she stated that `I don't know'. Then she stated thatin one of the photos there is a person with turban and mother's fingerwas bandaged due to injuries and in the photo there was also ayoungster wearing pants. Evidence of PW9 shows that she, A1 and A2have seen in some of the photos shown to her and in one of thephotos, a man with a turban was also there.12. PW12 who was examined to show that A1 came in acar and took petrol from the petrol bunk at Ooty where he wasworking has not identified A1 and was declared hostile. PW13 whowas working as a car mechanic at Ooty identified A1. He stated that DSR.1/2007 and Crl.A.Nos.1062and1119/200625A1 came to his garage with an ambassador car for repairs on19.4.2000. One Sardarjee by name Gurdeep Singh brought him andthe said Sardarjee is related to his wife. Evidence of PW13 clearlyshows that A1 was in Ooty and he went to the workshop of PW13 forrepair of the car along with Gurdeep Singh. Gurdeep Singh wasexamined as PW55. He stated that he is residing in Ooty for the last30 years selling sweets. MO VII(a) series photos were shown to him.In (MO VII(a)(3) photo it is stated that he was embracing a smallchild. In another photo (MO VII(a)(4) he and another person werethere with the child. A small child, another man and a woman werethere in MO VII(a)(5). He has also shown a photo in which the samepersons were travelling in a boat and he stated that MO VII (a) series(25) photos were taken from botanical garden and MO VII (a)(b) wastaken from the lake in the botanical garden. He identified A1 as theperson who was in the photos. He also stated that earlier also heknew A1 when seven years ago his mother was treated in the Minitaryhospital. He further stated that PW13 workshop man was related tohim and he has taken A1 to the workshop for repair of the car. A1came to his house at about 2-3 p.m. and by 4-5 p.m. they returned.Even though he stated that he was not aware of the name of A2, heidentified A2 in the box as the person who was in the photo. Aftertaking the photos he was seeing the persons again first time in the DSR.1/2007 and Crl.A.Nos.1062and1119/200626box. In cross by A2 he stated that he was not aware whether A2 wasthe wife of the A1 and in cross by A1 also he stated that he was notaware who took the photo. With regard to the marking of photosthere were serious objections raised by the appellants. Immediatelyafter the body was found, there was a search in the house atKumarapuram. The search was conducted on 27.4.2000 and after thesearch Ext.P9 mahazar was prepared. Various items were recoveredfrom there by the police which included Factomphose, bonemeal,yellow flowers and many types of tablets and bottles and injections. Itwas specifically mentioned that they saw three strips containing 10tablets each of Phenobarbitone Tablet IP Gardinal-60, one strip of 10tablets of Phenogan-25, Digorin Tablets I.P.0.25mg., two strips of 10numbers each of Lenoxin Tablets, Insulin zine suspension I.P. Insulinlente I.P. Purified-40, Precision Gllde Needle-18G and another needleof 1 ½ TW (1.2x38mm) and a 2ml.B.D. plastic needle etc. were seized.They also saw some tablet powder in a paper. A watch, one Nokiacellular phone without charge and a Camera `Yashika-MD-35 F-MotorVind' etc. were also recovered from there. It is stated by the trialJudge that it is a culpable omission in not sending the camera andphone for examination by experts in appropriate time. At paragraph61 of the judgment, the following observations were made by theSessions Judge: DSR.1/2007 and Crl.A.Nos.1062and1119/200627 “61. xx xx xx1. There is a clear reference to the use of amobile phone by the 1st accused to conversatewith the 2nd accused during the relevantperiod. A mobile phone was seized from thehouse of occurrence at Kumarapuram as perExt.P9 scene mahazar dated 27.4.2000.M.O.VII camera was also seized from thathouse as per that mahazar on the very samedate. They both were produced before courtas per Ext.P-35(3) property list as item Nos.13and 14. No effort was made during theinvestigation either to scan the mobile phoneor to detect the presence of a used film in thecamera. After commencement of the trial thelearned Addl. Public Prosecutor filedCrl.M.P.No.2165/05 to sent M.O.VII camera tothe chief photographer, State PolicePhotographic Bureau, for developing the film ifany found loaded in it. The prayer wasallowed vide order dated 27.6.2005 onCrl.M.P.No.2165/05 was upheld by the Hon'bleHigh Court in Crl.M.C.No.1925/05, preferredfrom the defence side. In my view, theomission to examine the mobile phone andcamera by experts in appropriate time is aculpable omission on the part of theinvestigating officer and it is liable to beenquired into by higher police authorities.”It shows how the photos were developed. Accordingly, those 25photos were produced and marked as MO VII(a) series. Since photoswere developed after examination of witnesses, the witnesses whowere seen in the photographs were recalled and examined. It can beseen that even the child identified A1, A2, her mother, and herself DSR.1/2007 and Crl.A.Nos.1062and1119/200628along with a person with turban i.e., PW55 in the photos. PW55identified the photos. The court itself sent the camera taken from thehouse at Kumarapuram for development of photos and it is true that25 photographs were able to be developed from the unfinished filmroll inside the camera. It is argued by the counsel for the defencethat even if those photos were taken, it cannot be stated that thephotos were taken on 18.4.2000 or 19.4.2000. But, at least it willshow that there was intimate relationship between A1 and A2, thatphotos of A1, A2 and PW9, the daughter of A2, were taken in a lakeside and that in one photo picture of PW55 was also there and weneed not disbelieve the evidence of PW55.13. PW56 is the Investigating Officer. Inspection memosof A1 and A2 dated 22.4.2000 were produced and marked as Exts.P23and 23(a). In Ext.P23(a) inspection memo of A2, it is noted that thereis an injury on the middle finger of A2. It was treated by PW42 andExt.P16 is the wound certificate. Ext.P7(a) leave certificate showsthat A1 who was Military Hospital Nurse was on leave during thisperiod. PW56 Investigating Officer further deposed that A1 hasdisclosed in his confession statement on 22.4.2000 that the deadbody which was tied and covered in a bed roll was taken in the dickyof a car and dropped into the 6th hairpin on the way to Ooty and if he DSR.1/2007 and Crl.A.Nos.1062and1119/200629is taken there, he can show the place and dead body. He deposed asfollows:“22.4.2000(cid:20)(cid:4) (cid:20)(cid:4) 1- തപ(cid:20)(cid:4) പറഞ(cid:13)(cid:20)ന ക(cid:13)റ-സമ(cid:20)നമ(cid:8)ഴ(cid:4)യ(cid:4)ല “bed rol-ന(cid:13)ള(cid:4)ല നപ(cid:8)(cid:20)(cid:4)ഞ(cid:13)lplastic കയറ(cid:4)0(cid:13) നക0(cid:4)മ(cid:13)റ(cid:13)ക(cid:4)യ dead body ക(cid:8)റ(cid:4)നനറഡ(cid:4)ക(cid:4)യ(cid:4)ല കയററ(cid:4) ഊ0(cid:4)ക(cid:13) നപ(cid:8)ക(cid:13)ന വഴ(cid:4)യ(cid:4)നല6- നനര നCയരപ(cid:4)ന വ!വ(cid:4)നട(cid:13)ത(cid:13) നക(cid:8)കയ(cid:4)ലഇ0(cid:4)0(cid:13)ണ(cid:25) - എനന നക(cid:8)ണ(cid:13)നപ(cid:8)യ(cid:8)ല ആ സലവ(cid:13)(cid:7) deadbody-യ(cid:13)(cid:7) ക(cid:8)ണ(cid:4)ച(cid:13)(cid:20)ര(cid:8)(cid:7)” He also mentioned that the same confession as stated by A1 isrecorded in the inquest report (Ext.P14) also. The statement whichled to the recovery was repeated as such before the court by theInvestigating Officer. It is also stated that PW23 has taken thephotos of the dead body and the dead body was found out from theplace shown to them by the accused. The dead body was identified byPW1, brother of the deceased, PW17, brother-in-law of the deceased,PW21, first cousin of the deceased and PW49, father of the deceased,and inquest was prepared in the presence of PW50 and other persons.Photos were taken before untying the knots with plastic mat and afterremoving the plastic mat. It is further stated that the body wasstraightened and thereafter also photos were taken. The plastic coir,bedholder, plastic mat, coir etc. were taken into custody by Ext.P14.The evidence of PWs 1, 17, 18, 21 and 49 support the recovery of the DSR.1/2007 and Crl.A.Nos.1062and1119/200630dead body as pointed out by A1. They also stated that the police partycame along with the accused in Tata Sumo vehicle driven by PW18and it stopped at the place pointed out by A1 and recovery wasaccordingly made. It was argued that a dead body with rigor mortiscannot be straightened easily. The dead body was recovered afterfive days of the death and there was no rigor mortis at that time. Thefact fact body was straightened was deposed by more than threewitnesses and they were not cross examined on that aspect. Thephotos were also shown and marked. Those photos also show theoriginal position when it was tied and after the body was straightened.The postmortem certificate also shows that straightened body wassent for postmortem. 14. Ext.P13 is the postmortem certificate. PW37 doctorconducted postmortem. The doctor has stated that the body was in adecomposition stage. With regard to the appearance of the body it isstated as follows:“Appearances found at the post-mortem-Body lies on its back, found to be in a state ofdecomposition. There was fracture of Left maxilla,mandible, zygoma bones. The tongue protrudedoutside the mouth. Teeth found incomplete. Noexternal injuries, except the coir marks found onboth upper limbs, chest and neck.” DSR.1/2007 and Crl.A.Nos.1062and1119/200631It is further stated as follows:“The viscera was sent for chemical analysisthrough police and we received the report. Exceptthe preservative sodium chloride and soil aroundthe body, all the parts of the viscera showedphenobarbitone poisoning. After perusing thechemical analysis report I gave the final opinion asthe death could be due to phenobarbitonepoisoning. Shown to me is the certificate issued byme and it bears my signature and office seal-Marked as Ext.P-13. Fracture in the body couldhave been occurred at the time of throwing thebody after death. The body was found intact and itcould be identified by persons who know thedeceased previously.”In cross examination he was asked whether an injection mark was onthe body, it was stated that after three days of death such markscannot be noted. Postmortem report as well as chemical analysisreport show that the death was due to administration ofphenobarbitone poison. It is true that even though in the chargesheet it was mentioned that Furidan was also administered to him,there is no evidence of administration of furidan though furidan wasalso seized from the house of A1 at Kumarapuram. With regard to thepurchase of phenobarbitone, it is the case of the prosecution that itwas purchased from the shop of PW33 who was running `SarojaMedicals'. He denied having sold Syringe, Needle, Gardinal-60,Phenobarbitone tablets, phenergon tablets to the first accused. He DSR.1/2007 and Crl.A.Nos.1062and1119/200632was also declared hostile and public prosecutor was allowed to crossexamine him. Even though he has stated that he has no licence to sellphenobarbitone and he is not selling the same during crossexamination finally he stated that he is selling Gardinal i.e.,phenobarbitone. In this connection, we have also seen that the scenemahazar taken from the rented house of A1 at Kumarapuram alsoshows that strips of Gardinal phenobarbitone tablets were shownthere. The chemical analysis report of the powder found in a paperwas also found to be of phenobarbitone. So, availability ofphenobarbitone in the house of A1 cannot be denied. It is notexplained also. 15. PW20 is the father-in-law of A1. A1 married hisdaughter Raji. She died during 2nd delivery in the operation room.According to him, he has doubts about the death of his daughter.Stating that it is vitamin tablets, A1 gave two tablets to Raji and hemade complaints in this regard to the police as he has suspicionregarding the death. After the death of her daughter Raji, A1 nevercame to the house of PW20. Since he was told that A1 was stayingwith A2 at Krishnapuram, he went and enquired at the shop of thedeceased near Pangode Military Camp. It was seen closed. But, onhis enquiry he understood that what he heard was true. PW39 was DSR.1/2007 and Crl.A.Nos.1062and1119/200633the Sub Inspector during the relevant time at Kayamkulam PoliceStation. He received a complaint from the deceased by post. Thecomplaint is that his wife and daughter were abducted by A1 andwere keeping in a rented house at Krishnapuram. The complaint isExt.P6. On that basis, police called the parties to police station. But,finally, since the complaint was registered in another police station,case was not registered. In this connection, we also refer to Exts.P2and P2(a) complaints which are produced by PW1. Exts.P2 and P2(a)also show that deceased in Ext.P2 dated 2.7.199 complaint stated thathis wife and child were abducted by A1. In Ext.P2(a) complaint it isstated that he had business dealings with nine persons mentionedtherein including A1. Since he had differences with A1 regardingmany dealings they were separated and they were trying to kill himand his family members and he wanted police protection. 16. Now, we will come to the defence evidence. DW1deposed that he was residing at Krishnapuram and friendly withfamily members of A1. According to him, 1st accused was there on14th, 15th, 16th and 17th till 22nd of April, 2000 as he was on leave(leave certificate (P7(a)). He stated that on 22nd police came andtaken A1 at about 10 a.m. He also statd that before the matter wasdisclosed in court (19.12.2005) he never disclosed to anybody the DSR.1/2007 and Crl.A.Nos.1062and1119/200634fact that he has seen that A1 was taken by police on 22.4.2000. Healso stated that he has not seen the leave certificate of A1. He deniedthe suggestion that he is the son of father's brother of A1. DW2 wasexamined to show that A1 has married one Raji, daughter of PW20.A1 got a job for Raji after promising Rs.2,00,000/=. After her death,PW20 wanted that, that job should be given to his second daughterwhich was not accepted by A1. Therefore, they were inimical. DW3was examined to prove that A2 was legally married on 13.12.1986 toone K. Raju (not A1) as per Ext.D3 register. He was examined toshow that A2 has not married the deceased. DW4 is the brother ofA1. He deposed that daughter of PW20 was married by A1. After herdeath, PW20 tried to get him married to sister of Raji. Since he didnot agree PW20 was inimical to him. To a question he answered thatPW20 tried to get her younger daughter also to be married by A1.17. In 313 statement A1's case is that from his friendBoban deceased has borrowed Rs.1,00,000/=. To get the money backhe along with his friend had gone to the house of deceased at P.T.P.Nagar. But, house was closed. He also came to know that deceasedwas evicted by some other creditors. His friend Boban is now atAmerica. His wife Raji died due to bleeding in a cesarian operation DSR.1/2007 and Crl.A.Nos.1062and1119/200635on 26.1.98. PW20 wanted the job of Raji to be given to his 2nddaughter. Since that was not agreed, he was arrayed as accused.He denied all incriminating circumstances pointed out to him.18. A2 in her 313 statement stated that she married oneRaju from Attingal. He was in Gulf. Deceased was his friend. Shecame to Thiruvananthapuram for studying a course. She went for aninterview with the deceased to Ernakulam. Thereafter they wereliving together. Further they were staying together in PTP Nagar.Deceased was getting amounts from various parties, promising thathe will arrange big loans. Since that was not done, people who gavemoney demanded back their money. So he left the place. In 1999 hecame back and started a shop. When creditors went there also, heagain left the place. Thereafter she heard that deceased was livingwith another lady and after 1999 she has not seen him. But, whenshe was heard regarding punishment, she stated that her daughter(PW9) was born to her on deceased and his earlier statement that shewas born to her first husband is not correct.19. It was argued that there is no direct evidence andprosecution failed to prove by establishing the chain of circumstancesthat accused were guilty of the crime. In the absence of direct DSR.1/2007 and Crl.A.Nos.1062and1119/200636evidence, for convicting an accused on the basis of circumstantialevidence, it should be proved leaving no doubt that the onlyconclusion possible from circumstances proved is that accused aloneis guilty and nobody else is guilty. Mere suspicious circumstancesalone is not enough to convict a person under section 302 IPC. It istrue that commission of offence can be proved by circumstantialevidence. But as held by the Apex Court in Balwinder Singh v.State of Punjab (AIR 1996 SC 607) that in a case based oncircumstantial evidence the court has to be on its guard to avoid thedanger of being swayed by emotional considerations. For convictingthe accused generally on the basis of circumstantial evidence, courtshould be satisfied that all the links in the chain are complete and theonly hypothesis possible on the basis of the evidence adduced is thataccused and the accused alone is guilty of the offence. (SeeC.K.Raveendran v. State of Kerala (JT 1999 (9) SC 408) andJaswant Singh v. State (Delhi Admn) (AIR 1979 SC 190).Circumstantial evidence should not only be consistent with the guiltof the accused but should also be inconsistent with his innocence asheld by the Apex Court in Mangaleshwari v. State of Bihar (AIR1954 SC 715). It has been repeatedly held by the Supreme Courtthat the distinction between 'may be true' and 'must be true' is longand divides vague conjectures from sure consideration and each link DSR.1/2007 and Crl.A.Nos.1062and1119/200637must be established by clear and unobjecting circumstances. InState of Kerala v. Ramachandran (1999 (3) KLT 512), Chief JusticeArijit Pasayat (as he then was) observed for the Bench as follows:It is settled principle of law that thecircumstances relied upon by the prosecutionmust be fully established, and the chain ofevidence furnished by those circumstancesshould be fully complete so as not to leave anyreasonable ground for a conclusion consistentwith the innocence of the accused. In a case ofcircumstantial evidence not only various links ofevidence should clearly establish guilt of theaccused, but also it must be such as to rule outa reasonable likelihood of the innocence of theaccused.”The Apex Court in Sharad v. State of Maharashtra (AIR 1984 SC1622) prescribed five principles for convicting an accused on the basisof circumstantial evidence which are as follows:1. the circumstances from which theconclusion of guilt is to be drawn should befully established, as distinguished from 'maybe' established.2. the facts so established should beconsistent only with the hypothesis of the guiltof the accused, that is to say, they should notbe explainable on any other hypothesis exceptthat the accused is guilty; DSR.1/2007 and Crl.A.Nos.1062and1119/2006383. the circumstances should be of aconclusive nature.4. they should exclude every possiblehypothesis except the one to be proved; and 5. there must be a chain of evidence socomplete as not to leave any reasonable groundfor the conclusion consistent with theinnocence of the accused and must show thatin all human probability the act must have beendone by the accused.It is well settled principle that unlike direct evidence, circumstanceswhich throw light, should lead from suspicion to certitude and caremust be taken to avoid subjective pitfalls of exaggerating a conjectureinto a conviction. As far as this case is concerned, we are of theopinion that the totality of evidence adduced in this case would clearlylead to the conclusion that A1 and A2 planned together to kill thehusband of A2 and as a result of the plan and conspiracy he wasmurdered by administering phenobarbitone. On a reading of theevidence together, we are of the opinion that chain of circumstancesis complete. We shall now enumerate some of the circumstancesproved in this case: (1) Motive suggested by the prosecution was illicit relation of A2, wife DSR.1/2007 and Crl.A.Nos.1062and1119/200639of the deceased, with A1. It was proved by Exts.P2, P2(a) and P6letters written by the deceased to the police. To prove the motive ofavoiding the deceased who happened to be an obstacle in therelationship between A1 and A2, prosecution marked Exts.P2, P2(a)and P6 complaints, wherein specific allegations have been madeagainst the first accused. Ext.P6 complaint was registered as petitionNo.367/99 of Kayamkulam Police Station. The first accused is therespondent in the said petition. All the parties were summoned to thepolice station. On enquiry it was clarified that an investigation isalready going on, in Vattiyoorkavu police station in respect of a verysame complaint. So no follow up action was taken by the police.Ext.P4 rent deed would show that A1 took a house at Kumarapuram,A1 and A2 were living at Kumarapuram as husband and wife andhouse was taken on rent by A1 in the name of Santhosh Kumar asdeposed by PW8. A2 developed illicit relationship with A1 is alsoproved by depositions of PWs 1, 16, 22, 25, 46, 49 and 55. It wascorroborated by evidence of PW9 daughter of the deceased thatMOVII (a) photos contain photos of A1, A2 and herself. PW21 alsodeposed that A1 and A2 behaved as husband and wife when thedeceased going out of the shop in Pangode. He also deposed thatThampi stated to him that matters are compromised and planning tostay away somewhere to escape from A1. DSR.1/2007 and Crl.A.Nos.1062and1119/200640 (2) Since dispute with A1 was compromised, deceased decided to stayaway from Pangode. A2 and deceased were living in the house ofPW2 on rent as husband and wife from January, 2000 (rent deedExt.P3) and house was taken in the name of Vinod, but, Vinod wascalled as Thampi. They were living with their daughter PW9. This isevident from the evidence of PW2, landlady, her son PW10, PWs 5, 6and 15 close neighbours.(3) On 15.4.2000, A1 and A2 forcibly took deceased in an ambassadorcar as seen by PWs 2, 5, 10 and 15.(4) PWs 2, 5, 10 and 15 heard cries of the deceased from the housebefore he was taken away from the house. Even PW6 who wasdeclared hostile heard sounds and and loud cries of a man. By 9 O'clock he also saw an ambassador car coming in reverse to the houserented out by PW2 to A2.(5) As per Ext.P17 scene mahazar which was prepared when thehouse belonging to PW2 where A2 and deceased were staying on rentwas searched, driving licence of Vidhukumaran Thampi, ration cardwith name R.V.Thampi etc. were seized and in the ration card head of DSR.1/2007 and Crl.A.Nos.1062and1119/200641the family was mentioned as R.Vidhukumaran Thampi. Blood stainsalso seen on the door of the hall to the courtyard. This shows that A2,deceased and PW9 were residing together in the house of PW2 andblood stains were seen on the door. (6) Evidence of PW2 shows that A2 has stated that deceased bite herfinger. Arrest (Inspection) memo Ext.P23(a) shows that when A2 wasarrested, she had wound on right finger. Ext.P16 wound certificateshows the same. In MOVII(a) series photos also A2 is seen withinjured finger. (7) After taking away of deceased by A1 and A2 nobody has seen thedeceased. Even A2, who was living with the deceased, has noexplanation what happened to her husband though she admitted thatPW9 was born out of deceased. Even though it was stated by A2 thathe is being taken for test in District Hospital, when PW2 enquired,deceased was not admitted in the hospital. (8) Incident as narrated by PW2 and corroborated by her son PW10and neighbours PW5 etc., A1, A2 and PW9 came back on the sameday to take articles from the rented house. DSR.1/2007 and Crl.A.Nos.1062and1119/200642(9) It was proved by evidence of PWs 2, 5, 15 etc. that A1 and A2came back to take away the household articles through a lorry. Infact A1 and A2 were arrested by the police on the information givenby PW2 at that time. (10) A1 and A2 lived together in the rented house at Kumarapuram.PW8 is the landlady of the house occupied by A1 and A2 on the basisof the rent deed in Kumarapuram. She has stated that A1 hasexecuted Ext.P4 rent deed in respect of the above referred building.The name was shown as Santhosh Kumar. First accused who wasidentified by PW8 in the court represented that “ഭ(cid:8)രEയ(cid:13)(cid:7) ക(cid:13)ഞ(cid:13)(cid:7)ഓന0(cid:8)യ(cid:4)ല ഇര(cid:4)6(cid:13)ണ(cid:25).” (11) Even though PW3, driver of the ambassador car which allegedlytook the dead body and threw the same on the way to Ooty, wasdeclared hostile, the car owner's (PW11) evidence shows that heengaged PW3 as the driver during the relevant time and trip sheetshows that the car KL-4A-6595 was taken to Ooty. This is furtherproved by check post documents like Exts.P11(a) and P11(b). (12) Presence of phenobarbitone tablets and powderedphenobarbitone tablets in the house of A1 taken on rent at DSR.1/2007 and Crl.A.Nos.1062and1119/200643Kumarapuram from PW8 coupled with Ext.P15 chemical analysisreport show that death was due to administration of phenobarbitonewhich also support the case of the prosecution.(13) The following articles were recovered vide Ext.P9 scene mahazarfrom the residence of A1 and A2 at Kumarapuram. MO4 MobilePhone, MO5 Furidan packet, MO6 two packets white powder, MO7Camera, MO8 Cotton, MO11 watch apart from tablets, syringe,medicine, one maxi, some quantity of phactomphose and manure(എല(cid:13)നപ(cid:8)ട(cid:4)). Therefore, the one dispovan syringe and needle wererecovered at the instance of confession made by A2 vide Ext.P30seizure mahazar. The plastic coir was recovered at the instance ofconfession made by A1 vide Ext.P31 seizure mahazar. The articlesabove referred were sent for analysis. Ext.P36 is the analysis report.Ext.P36 proves that phenobarbitone, a pshychotropic drug wasdetected in two strips of tablets and newspaper packet containinggranular materials. The maxi was found blood stained and the resultof chemical examination revealed that it contains human blood. (14) Arrest was made when PW2 informed the police when A1 andA2 came to take the household articles in lorry from the rented house. DSR.1/2007 and Crl.A.Nos.1062and1119/200644(15) Evidence of PW2, PW16 and PW21 supports the finding oncriminal conspiracy. PW2 proved that A2 made a telephone call at2.30 p.m. stating that “വ(cid:4)നന(cid:8)ദ(cid:4)നനറ ഭ(cid:8)രE ആണ(cid:25). വ(cid:4)നന(cid:8)ദ(cid:4)നന ക(cid:4)0ണ(cid:7).”After some time she continued “ആര(cid:25) അ(cid:20)(cid:13)നപ(cid:8)നലആര(cid:25). അങനന(cid:20)നന', ,ര(cid:8)ത(cid:20)(cid:4) ആറരഏഴ(cid:25) മണ(cid:4)നയ(cid:8)ട(cid:13)ക(ട(cid:4) വന(cid:8)ല മ(cid:20)(cid:4), ”. She heard some unusualsound from the residence of the second accused at 4 O' clock. “അവര(cid:20)(cid:8)മസ(cid:4)ക(cid:13)ന മ(cid:13)റ(cid:4)യ(cid:4)ല ഒര(cid:13) മ(!ല(cid:13)(cid:7) ഞരങല(cid:13)(cid:7) ശബ(cid:7) നക0(cid:13). ആ ശബ(cid:7)(cid:20)മ(cid:25)പ(cid:4)യ(cid:13)നട(cid:20)(cid:8)യ(cid:4)ര(cid:13)ന(cid:13) എന(cid:25) എന(cid:4)ക(cid:13) മനസ(cid:4)ല(cid:8)യ(cid:4).” A2 making anotherphone call at 8.30 p.m. She was found disturbed. Dialled a mobilenumber and asked “എന(cid:8) ഇത(cid:20)യ(cid:13)(cid:7) (cid:20)(cid:8)മസ(cid:4)ക(cid:13)ന(cid:20)(cid:25). She was foundfurious. PW7, Manager of the lodge, deposed that at about the sametime A1 was talking over telephone “ഞ(cid:8)ന പറഞ(cid:20)(cid:13)നപ(cid:8)നല മര(cid:13)ന(cid:13)നക(cid:8)ട(cid:13)നത(cid:8)ഉറങ(cid:4)നയ(cid:8)ഞ(cid:8)ന വരന0? ? ''. A1 vacated the room thereafter.At 9.30 p.m. A1 came in an Ambassafor Car “ക(cid:8)റ(cid:4)ല ന(cid:4)ന(cid:25) ഒര(cid:8)ള ഇറങ(cid:4)എന(cid:4)ക(cid:13) മ(cid:13)ഖ(cid:7) (cid:20)ര(cid:8)ന(cid:20) വ(cid:4)ന(cid:4)(cid:20)യ(cid:13)നട മ(cid:13)റ(cid:4)യ(cid:4)നലക(cid:25)നപ(cid:8)ക(cid:13)ന(cid:20)(cid:25) കണ(cid:13).” (IdentifiedA1 as the said person). Then she states that “ട(cid:4)യ(cid:8)ന വ(cid:4)ന(cid:4)(cid:20)യ(cid:13)നട മ(cid:13)റ(cid:4)യ(cid:4)ലകയറ(cid:4)യ(cid:20)(cid:13)(cid:7) ട(cid:4) വ;0(cid:4)നല ലലററ(cid:13)കള എല(cid:8)(cid:7) അണഞ(cid:13). “ Then she heard a noise“എനന നക(cid:8)ല(cid:13)നന. ആര(cid:8) എനന പ(cid:4)ട(cid:4)ക(cid:13)ന(cid:20)(cid:25).” The deceased was takeninto the car by A1 and A2. PW9 daughter also accompanied. A1 andPW9 came back in an autorickshaw. Took a bottle of water and a bag DSR.1/2007 and Crl.A.Nos.1062and1119/200645with them. PW5 corroborated the evidence of PW2. PW10 who is theson of PW2 has given an evidence that there was a sound എനനനക(cid:8)ല(cid:13)നന. All these evidence prove that deceased was killed on thebasis of criminal conspiracy. (16) Recovery of dead body at the place shown by A1 which isadmissible under Section 27 of the Evidence Act also corroborates theprosecution case.All these circumstances clearly prove that accused are guilty andnobody other than accused are guilty. 20. It was argued for the accused that even if evidence ofwitnesses like PW2 is believed, none of the witnesses stated that A1and A2 were seen in the locality of deceased after 15.4.2000 and hedied only much later as per prosecution story and last seen togethertheory cannot be applied in view of time gap. But, nobody has seendeceased after A1 and A2 took away him in the ambassador car atabout 9.30 p.m. A2 being the wife was bound to explain whathappened to her husband who was taken forcibly for treatment to thehospital. It is argued that there is no evidence that phenobarbitonewas administered in excess quantity and what was the quantity of the DSR.1/2007 and Crl.A.Nos.1062and1119/200646phenobarbitone administered by them. A1 was a Military hospital nurse. PW32 from whom phenobarbitone was alleged to bepurchased deposed that he has no licence to sell the same, but, laterhe admitted that he is selling phenobarbitone tablets like Gardinal.Phenobarbitone tablets and its powder in paper packet were foundfrom the house where deceased breathed his last (Ext.P9). Therefore,we are unable to accept the contention that there is no evidence toshow that phenobarbitone tablets were available to the accused.Postmortem report and chemical analysis report prove that deceaseddied by consuming phenobarbitone. All the four circumstancespointed out in Sarath Birdhichand Sarda v. State of Maharashtra((1984) 4 SCC 116) are proved in this case.(1) That there is a clear motive in accused to administer poison to the deceased.(2) that the deceased died of poison (phenobarbitone).(3) that the accused had poison in his possession and it was found in the house of A1 at Kumarapurajm.(4) He had an opportunity to administer the poison on the deceased.There is evidence (PWs 7 and 36) to show that A1 took a room atAttingal in the name of Vinod and A1 and A2 stayed there and A2 latertelephoned somebody calling one Vinod. 22. We have discussed the evidence adduced in this casein detail. Even if some of the circumstances relied on by the DSR.1/2007 and Crl.A.Nos.1062and1119/200647prosecution were not proved, the circumstances proved by admissibleevidence completes the chain pointing out the guilt on the accusedand the only hypothesis possible from the evidence adduced is that A1and A2 together committed the murder in furtherance of theircommon intention and common plan and, therefore, after analysingthe entire evidence, we are of the opinion that A1 and A2 are guilty ofoffence punishable under Section 302 read with Section 34 of theIndian Penal Code as well as other offences found by the trial court.With regard to the death sentence reference, we are of the opinionthat even though the murder was brutal, every brutal murder cannotbe termed as rarest of rare cases. 23. It was pointed out by the defence that even if theprosecution case is believed, A2 married one Raju who was employedabroad and deceased who was the friend of Raju finally started livingwith A2. The murder in case of illicit relationship though notjustifiable cannot be treated as rarest of rare cases. Considering thefacts of this case and mitigating and aggravating circumstancespointed out in Bachan Singh v. State of Punjab ((1980) 2 SCC 684)and Machhi Singh and others v. State of Punjab ((1983) 3 SCC470), we are of the opinion that it is not a rarest of rare cases.Therefore, death sentence is set aside and instead of death sentence, DSR.1/2007 and Crl.A.Nos.1062and1119/200648the lesser punishment of life imprisonment is imposed on A1 and A2for the offence punishable under Section 302 read with Section 34 ofthe Indian Penal Code. Conviction and sentence under sections 120B,201 and 364 IPC are also confirmed. However, in case sentence iscommuted, accused can undergo the sentences concurrently. J.B.KOSHY JUDGE K.HEMA JUDGEtks