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Mohammed Faleel v. State rep. by Inspector of - Criminal Appeal No.762 of 1995  RD-TN 87 (21 February 2002)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE N.DHINAKAR
THE HONOURABLE MR.JUSTICE A.PACKIARAJ Criminal Appeal No.762 of 1995
Mohammed Faleel .. Appellant/Accused -vs-
State rep. by Inspector of
Station. .. Respondent
Appeal against the judgment of the learned Sessions
Division, Thanjavur in S.C.No.137 of 1994 dated 4.8.1995.
For Appellant : Mrs.J.Sundarakanchani
For Respondent : Mr.S.Jayakumar
Addl. Public Prosecutor.
J U D G M E N T
(Judgment of the Court was delivered by N.DHINAKAR, J.) The appellant stands convicted for offences under Section 364, 394 read with 397 and 302 I.P.C. and on being convicted, he was sentenced to rigorous imprisonment for a period of six years, rigorous imprisonment for a period of seven years and imprisonment for life respectively. The allegation against the appellant before the trial Court as could be seen from the charge is that at 9.00 a.m. on 26.10.92, he kidnapped a girl, Fathima Natchiya, aged about 12 years, with a view to commit theft of gold ornaments (M.O.8 silver anklets, M.O.9 a gold chain and M.O.10 ear rings) and after removing the said gold ornaments, caused her death by throwing her into a well. To prove the above allegation, the prosecution, before the trial Court, examined P. Ws.1 to 14 and marked Exs.1 to 15 as well as M.Os.1 to 12.
2. The case of the prosecution as could be discerned from the oral and documentary evidence can be briefly summarised as follows:- P.W.1 is the mother of the deceased Fathima Natchiya and that Fathima Natchiya was aged about 12 years. The husband of P.W.1 was working in an Arabian country. The deceased used to go to a Mosque to take her lessons in Scriptures and the accused was a teacher. He was living opposite to the house of P.W.1. 40 or 50 children used to attend the classes and P.W.7 is one of the classmates of the deceased. At about 7.00 a.m. on 26.10.92, the deceased left her house for the mosque to attend the classes and at that time, she was wearing a rose colour blouse and a rose colour skirt with a blue colour half-saree. She was also wearing a pair of gold bangles, a chain, gold ear rings and silver anklets as well as a small gold ear dots. As she did not return home at 8.30 a.m., which is the normal time, P.W.1 went to the mosque to find out the whereabouts of her daughter. She found the accused coming in the opposite direction and questioned him about her daughter. The accused told P.W.1 that the deceased will return home. P.W.1 went in search of her daughter. She enquired at the house of Jalakammal, P.W.2, who informed her that at about 8.00 or 9.00 a.m., the deceased left the bags in her house and went away and that she did not know the whereabouts of the deceased. The enquiries of P.W.1 revealed that the accused was seen taking the deceased. P.W.7, the classmate of the deceased, gave the said information to P.W.1. Therefore, P.W.1 went in search of the accused, but he could not be found. She requested the villagers to search for her daughter in the neighbouring villages, but could not succeed in tracing her daughter. Thereafter, at 5.15 p.m., she proceeded to Peravoorani Police Station and gave a complaint, which was reduced into writing by P.W.12, the head constable. The said complaint is Ex.P.1. P.W.12, on the basis of the complaint, Ex.P.1, registered a case in Crime NO.682 of 1992 under the caption 'Child Missing". Ex.P.11 is the copy of the printed first information report. Investigation was taken up by P.W.13, the Inspector of Police.
3. P.W.13, took up investigation in the crime and at 8.00 a.m. on 2 8.10.92, he was informed that a body of a child is floating in a well. P.W.13 proceeded to the place where the body was floating. He saw the body of a child floating in the well. He drew a rough sketch, Ex.P.12 and had the scene of occurrence caused to be photographed. He also prepared an observation mahazar, Ex.P.2, in the presence of P. W.8 and others. The body was brought out and an inquest was conducted over the body between 9.00 a.m. and 3.30 p.m. in the presence of Panchayatdars and at the time of inquest, P.Ws.1 to 6 were questioned and their statements were recorded. The crime was altered to one under Section 302 I.P.C. after the body was identified as the body of Fathima Natchiya by P.W.1. A requisition was issued for conducting autopsy.
4. P.W.10, the medical officer at Peravoorani Government Hospital, on receipt of the requisition, conducted autopsy on the body of Fathima Natchiya and found the following:-
"The condition then was, the body highly decomposed moving maggots seen, eyeball liquified peeled off; eyes liquified, scalp hair completely detected symentical R.M. passed away, tongue protruded between teeth, teeth - Upper 12, lower jaw 12 seen, abdomen distended.
Abdomen and thorax uniform heart weighs 600 grms. Empty dark decomposing lungs Rt.100 grms, left 80 gms. dark decomposed Hyoid bone intact, stomach empty decomposed 90 grms. Liver 200 grms dark decomposed Gail bladder. Empty spleen decomposed kidney Rt 40 grms Lt 50 grms. Decomposed dark intestine distended uterus infantile 3 cm. X 2 ½ cm. Brain liquified 820 grms."
He issued Ex.P.6, the post-mortem certificate and Ex.P.7, his final opinion, after the receipt of the report of the chemical analyst, opining that he cannot give the cause of death since the body was in a highly decomposed stage.
5. In the meantime, P.W.13, continuing with his investigation, arrested the accused at about 4.00 p.m. on 31.10.92 in the presence of P.W.9 and questioned him. The accused gave a statement and the admissible portion of the said statement is Ex.P.4. In pursuance of the said statement, the accused took the police party to the mosque and from behind a mirror, took M.Os.8 to 10 and produced them, which were seized under a mahazar Ex.P.5 attested by witnesses. The accused was brought to the police station and later, sent to Court for remand. After P.W.13 was transferred, further investigation was taken up by his successor, P.W.14, who issued a requisition to P.W.11 through his superior to give an opinion as to the cause of death. P.W.11, the Professor, Forensic Medicine, Thanjavur Medical College Hospital, on receipt of the requisition, perused Ex.P.6, the post-mortem certificate, Ex.P.8, the chemical analyst report and Ex.P.9, another report of the chemical analyst as regards the liquid taken from the private part of the deceased and after considering all factors came to the conclusion that Fathima Natchiya died on account of drowning. His opinion is marked as Ex.P.10. The material objects were sent to Court with a request to forward them for analysis. After completing investigation, the final report was filed against the accused on 1.7.94.
6. When questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him, the accused denied all the incriminating circumstances.
7. The case of the prosecution is that Fathima Natchiya died on account of homicidal violence. To prove the said fact, P.Ws.10 and 11 were examined. P.W.10 is the doctor, who conducted autopsy and who issued Ex.P.6, the post-mortem certificate and Ex.P.7, the final opinion. The doctor, who conducted autopsy, could not come to the conclusion as to the cause of death since the body was in a highly decomposed stage. The investigating officer, therefore, was constrained to seek expert opinion from P.W.11, who was the Professor in Forensic Medicine at Thanjavur Medical College Hospital. P.W.11 gave evidence before the Court and stated that the deceased must have died on account of drowning and also gave reasons, which he mentioned in Ex.P.10. It is of course true that the doctor, in cross-examination, has stated that he cannot say definitely whether the deceased would have fallen into the well accidentally or was deliberately thrown in. A perusal of Ex.P.2, the observation mahazar, shows that the deceased could not have fallen into the well accidentally since it had walls on all the four sides. We, therefore, rule out the possibility of the deceased falling into the well by accident and that she must have been pushed into the well by someone. Once we come to the conclusion that the deceased had been pushed into the well, then we cannot but hold that the deceased died on account of homicidal violence.
8. The prosecution before the trial Court relied upon circumstantial evidence to prove that the accused took the deceased to the well and after removing the gold ornaments, pushed her into it. It is the settled principle of law that when the prosecution relies upon circumstantial evidence, it should prove all the links in the chain of circumstances and that even if a single link is missing, the accused is entitled for the benefit of doubt. Keeping the above principles in mind, we will now analyse the evidence to find out whether the prosecution has succeeded in establishing all the links in the chain of circumstances.
9. The first circumstance is brought out through the evidence of P.W.1, who is none other than the mother of the deceased. According to her, the deceased left the house for mosque to attend scriptures classes. She has stated that the deceased, who left at about 7.00 a.m., did not return even by 8.30 a.m. and therefore, she went in search of her daughter. She found the accused coming in the opposite direction, who told her, when questioned, that the deceased will come back to the house. It is her further evidence that she searched for her daughter, but could not trace her and therefore, gave a complaint at the police station in the evening. She has also stated that on an earlier occasion, the accused has asked her daughter to wear a saree and come to the well where he will chant some mantras for improving her health. She has further deposed to the effect that during her search, she came across P.W.7, the classmate of her daughter, who told her that the deceased was seen by her only at 8.30 a.m. P.W.1 also stated in her evidence that when the deceased left, she was wearing M.Os.8 to 10. Later, after the body was removed from the well, it was identified by P.W.1 as the body of her daughter. Therefore, the first circumstance that the deceased left at about 7.00 a.m. on 26.10 92, was seen dead by her mother only on 28.10.92 at 8.00 a.m., after the body was removed from the well stands proved.
10. As we have already held that the death was on account of homicidal violence, the Court is to further find out whether the accused has committed the murder of Fathima Natchiya. P.Ws.3 and 4 are the two witnesses examined by the prosecution to say that the deceased was seen in the company of the accused at about 9.00 a.m. on 26.10.92. Both the witnesses have stated that they saw the accused going towards the well at about 9.30 a.m. They have deposed that they left the village on 26.10.92 and only on 28.10.92, they came to know that Fathima Natchiya is missing and therefore, went in search of the accused as they saw the deceased in his company; but the accused was not available. Therefore, the evidence of P.Ws.3 and 4 indicate that the deceased was last seen in the company of the accused after she left the house of P.W.2 where she left her bags and was seen alive by P.Ws.3 and 4 and thereafter, she was not seen alive by anyone, but only her dead body was taken out of the well. In spite of cross-examination, the defence did not succeed in eliciting any answer in favour of the accused for the Court to disbelive P.Ws.3 and 4. Once it is found that the deceased was in the company of the accused, then it is for the accused to explain as to how the deceased met her end. The accused had no explanation to offer.
11. In DEONANDAN MISHRA VERSUS STATE OF BIHAR (AIR 1955 SC 801), the Supreme Court has held that absence of explanation is an additional link in the chain of circumstances. As the accused had no explanation to offer as to how the deceased Fathima Natchiya met her end, it becomes an additional link in the chain of circumstances.
12. After the investigation was taken up, the body was removed from the well and at that time, M.Os.8 to 10 were found missing from the body by P.W.1. The accused was arrested on 28.10.92 by P.W.13 in the presence of witnesses. The accused gave a statement and in pursuance of the admissible portion of the statement, Ex.P.4, M.Os.8 to 10 were recovered by the officer after they were produced by the accused from behind a mirror in the mosque. The evidence of P.W.1 that the deceased went to the mosque wearing the jewels, M.Os.8 to 10 and their subsequent recovery after the arrest of the accused at his instance show that the accused was in possession of the jewels, which were in the custody of the deceased and it is for the accused to explain as to how he came into possession of the jewels; but he had no explanation to offer.
13. In STATE OF MAHARASHTRA VERSUS SURESH [2000 SCC (Cri) 263], the Supreme Court held that three possibilities are there, when an accused points out a place where a dead body or an incriminating material was concealed without stating that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. If the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by him and such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.
14. As stated earlier and at the risk of repetition, we have to say that the accused gave a statement and produced M.Os.8 to 10, which were kept concealed behind a mirror in the mosque, where he was working as a teacher. He did not offer an explanation for the possession of jewels and therefore, this Court is to presume that he concealed it. Once we come to the conclusion that the accused concealed the ornaments of the deceased, then it is for the accused to explain the circumstances under which the deceased met her end. As we have already said, the accused had no explanation to offer as to how the deceased met her end. The Supreme Court has held that if the circumstances indicate that murder and robbery forms part of the same transaction, the Court can raise a presumption under Section 114 (a) of the Evidence Act to hold that the murder was committed in order to commit theft of the jewels.
15. The circumstances, which we have pointed out, coupled with the recovery of the ornaments of the deceased at the instance of the accused, show that the accused committed the murder of Fathima Natchiya in order to commit theft of the jewels, M.Os.8 to 10. The trial Court was, therefore, justified in convicting and sentencing the accused and we find no reason to interfere with his conclusions. The appeal is, therefore, dismissed. (N.D.J.) (A.P.J.)
N.DHINAKAR, J. &
1. The Sessions Judge,
Thanjavur Division, Thanjavur.
2. The Public Prosecutor,
High Court, Madras.
3. The Inspector of Police,
4. The Superintendent,
Central Prison, Thanjavur.
Crl.A.No.762 of 1995
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