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KATHTHAMMAL versus THE STATE REPRESENTED BY

High Court of Madras

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Kaththammal v. The State represented by - Criminal Appeal No.825 of 1998 [2007] RD-TN 275 (23 January 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 23/01/2007

CORAM:

THE HONOURABLE MR.JUSTICE D.MURUGESAN

AND

THE HONOURABLE MR.JUSTICE G.RAJASURIA

Criminal Appeal No.825 of 1998

Criminal Appeal No.1125 of 1998

Kaththammal ... Appellant in Crl.A.No.825 of 1998/Accused No.2

Pandian ... Appellant in Crl.A.No.1125 of 1998/Accused No.1

Vs

The State represented by

The Inspector of Police,

Thiruvarambur,

Trichy.

Cr.No.701 of 1996 ... Respondent in both the appeals

Prayer

Appeals filed under Section 374 of the Code of Criminal Procedure, against the conviction and sentence passed by the learned I Additional Sessions Judge - cum - Chief Judicial Magistrate, Trichy, in S.C.No.111 of 1998 dated 11.09.1998.

For Appellants ... Mr.T.A.Omprakash for A2 in Crl.A.No.825 of 1998 Mr.C.V.Ilangovan for A1 in Crl.A.No.1125 of 1998 For Respondent ... Mr.P.N.Pandithurai,

Additional Public Prosecutor :COMMON JUDGMENT



G.RAJASURIA, J

Crl.A.No.825 of 1998 is directed as against the conviction and sentence passed by the learned I Additional Sessions Judge - cum - Chief Judicial Magistrate, Trichy, in S.C.No.111 of 1998 dated 11.09.1998, whereby the appellant/A.2 was convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for one year under Section 302 read with Section 34 I.P.C and further convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for three months under Section 302 read with Section 201 I.P.C and the sentences are ordered to run concurrently.

2. Crl.A.No.1125 of 1998 is directed as against the conviction and sentence passed by the learned I Additional Sessions Judge - cum - Chief Judicial Magistrate, Trichy, in S.C.No.111 of 1998 dated 11.09.1998, whereby the appellant/A.1 was convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for one year under Section 302 read with Section 34 I.P.C and further convicted and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for three months under Section 302 read with Section 201 I.P.C and the sentences are ordered to run concurrently.

3. The nitty gritty, the warp and woof of the case of the prosecution as stood exposited from the records could be portrayed thus: (i) Annanagar, in North Kattoor within Thiruvarambur Police Station limits, had the dubious distinction of an unfaithful wife namely A.2 Kaththammal living with her husband the deceased Rajendran. A.1 Pandian who had been working as a servant under the deceased Rajendran in his 'Murukku' business was terminated from service in view of he having been suspected to be in illicit intimacy with the deceased's wife, A.2 a few days anterior to the date of occurrence.

(ii) No doubt, the deceased Rajendran even though proved himself a man with self-respect by taking exception to A.1 having illicit intimacy with A.2, yet he unfortunately did have had excess drinking habit which attracted him the name sot or drunkard which proved itself an additional aiding factor for A.1 and A.2 to murder him so as to get rid of him from the terrestrial world, on the fond hope that no more he would interfere with the nasty illicit relationship between A.1 and A.2. The deceased also indulged in wife battering during his life time. It so happened that A.1 and A.2 harbouring in their hearts antipathy and abomination, aversion and abhorrence, dislike and detest as against the deceased, entered into a cahoot with each other so as to make short work of the deceased Rajendran during the intervening night between 16th and 17th July, 1996, A.1 made the deceased to consume liquor excessively in their house, at the aforesaid address wherein along with them the deceased Rajendran's pregnant younger sister was staying with her father. A.2 managed to take the deceased with the help of A.1 who was waiting outside her house at the backyard, to a dilapidated tannery premises and managed to put him inside a cement tank (thotti) and poured kerosene on him and set him ablaze and consequently, the deceased died the death at the hands of his own wife and his wife's paramour and on 18.07.1996, the Village Administrative Officer of that locality came to know of it and set the criminal law in motion.

(iii) Thereupon, the police registered the case in Cr.No.701 of 1996 under Section 302 I.P.C and took up investigation. The police visited the scene of occurrence and prepared observation mahazar and collected the materials from the spot, in addition to having conducted inquest on the dead body of the deceased Rajendran. At the initial stage, the police was not aware of the identity of the deceased. Subsequently, they got the dead body identified and the entire murder incident came to lime light on examination of the witnesses. Both the accused were arrested and in pursuance of their confessions, the material objects were recovered. The police also sent the skull, of the deceased for Superimposition Test and got positive report establishing the identity of the deceased as Rajendran The viscera was also sent to the experts through Court which resulted in experts identifying alcohol in various parts of the body of the deceased Rajendran and ultimately, the police laid the police report as against both the accused before the Magistrate concerned, who committed the case to the Court of Sessions, which framed the charge as against the accused under Section 302 read with Section 34 I.P.C and under Section 302 read with 201 I.P.C. The plea of the accused was one of total denial.

4. During trial, on the side of the prosecution, P.W.1 to P.W.14 were examined and Exs.P.1 to P.28 were marked along with M.Os.1 to 22. No oral or documentary evidence was adduced on the side of the defence.

5. The trial Court ultimately found both the accused guilty of the offences with which they were charged and imposed sentences as set out supra.

6. Being aggrieved by the said judgment of the trial Court, A.1 and A.2 filed separately the aforesaid respective appeals almost on similar grounds as under:

(i) The trial Court failed to take into consideration the vital contradiction in the deposition of the witnesses. In the absence of the testimony of independent witnesses but on the basis of interested witness, the trial Court recorded conviction as against A.1 and A.2. (ii) The trial Court was not justified in convicting the accused. (iii) The circumstantial evidence relied on by the prosecution got fizzle out.

(iv) P.W.6, P.W.9 and P.W.10 whom the prosecution relied on turned hostile. (v) The trial Court wrongly relied on the evidence of P.W.3 and P.W.4 and decided the case. (vi) The medical evidence did not tally with the time of death as put forth by the prosecution. The deceased Rajendran could not have been put into the box M.O.13 while he was alive and taken to the place of occurrence for setting him ablaze. (vii) P.W.4's husband, one Pandian who died subsequently was falsely claimed to have been examined on 22.02.1997 by the Investigating Officer even though at the relevant time of he having allegedly seen a part of the process of the occurrence, was in jail. (viii) Accordingly, they prayed for setting aside the conviction and sentence passed by the trial Court.

7. Points for consideration are: (i) Whether the prosecution has proved the motive for the crime? (ii) Whether the prosecution adduced reliable evidence for recording conviction as against both the accused relating to the murder of the deceased Rajendran?

(iii) Whether there is any infirmity in the judgment of the trial Court? Point No:(i)

8. Trait, the proposition of law is that motive though need not be proved for driving home the guilt of the accused, yet when the case rests on circumstantial evidence, it is imperative on the part of the prosecution to prove the motive for the crime.

9. P.W.3, Jeya @ Jeyalakshmi, the younger sister of the deceased Rajendran who was staying in the house of the deceased Rajendran in connection with her first delivery at the relevant time, in her deposition would detail and delineate the facts that the deceased was doing business in 'Murukku'; A.1 was working under the deceased for the purpose of taking the goods and suppling it to various shops; While so, A.1 and A.2 had illicit intimacy with each other despite A.2 was having two female children and two male children; even though P.W.3 took exception for A.2 having illicit intimacy with A.1, she did not heed to the advice of P.W.3, but stone-walled it; the deceased Rajendran was in the habit of consuming liquor; in fact, P.W.3 herself saw A.1 and A.2 sharing the bed together and the said fact was informed to the deceased Rajendran by P.W.3. Thereupon, problem arose in the family and consequently, A.1 was terminated from service by the deceased Rajendran; despite that termination, A.2 started having connection with A.1 under one pretext or other and that was known to all persons in that street where their house situated. The deceased Rajendran scolded A.2 for her unwanted conduct and that in that circumstances and back drop only, the occurrence took place.

10. P.W.3 was cross-examined extensively on behalf of A.1 and A.2 separately, but nothing has been elucidated out to discard her testimony. During cross-examination, she would clearly state that ten or fifteen days only anterior to the murder incident, she came to know about the illicit intimacy between A.1 and A.2, even though P.W.3, started staying in the house of the deceased in connection with her first delivery three months anterior to the murder incident. She also clarified during cross-examination that two or three times, she saw A.1 and A.2 having been together in illicit intimacy with each other. As such P.W.3 cogently and copiously narrated about the illicit intimacy between A.1 and A.2 and also about the fact of the deceased having taken exception to it and scolded A.2.

11. P.W.4, Mallika, the neighbour of the deceased Rajendran also corroborated the testimony of P.W.3 relating to the illicit intimacy that existed between A.1 and A.2.

12. The learned Counsel for the appellants by their arguments would try to torpedo the evidence of P.W.3 and P.W.4 on the ground that P.W.3 was inimically predisposed towards A.2 and that P.W.4 is an illicit arrack dealer at the mercy of the police.

13. It is therefore, just and necessary to analyse the evidence in the light of the arguments as advanced on the side of the appellants so as to find out whether there is any iota of truth in it.

14. P.W.3, Jeya @ Jeyalakshmi, indubitably and incontrovertibly, is the younger sister of the deceased Rajendran who was staying in the house of the deceased at the relevant time in connection with her first delivery. In fact, on behalf of A.2 while cross-examining P.W.3, it was suggested to her as follows:

"vd; tPl;Lf;fhuUld; kdf;f\;lk; fhuzkhf buhk;g ehl;fshf ,q;nf ,Ue;njd; vd;W brhd;dhy; rhpay;y. vd; mz;zpf;F brhe;jkhd bghUs;fis vLj;Jf; bfhz;l fhuzj;jpdhy; ehd; bgha;ahf ,g;nghJ rhl;rp brhy;fpnwd; vd;W brhd;dhy; rhpay;;y."

15. From such a suggestion, it could rightly be inferred and understood, appreciated and visualised that on the accused's side itself, her presence at the relevant time in that house was admitted and in such a case, due weightage can rightly be given to her evidence. It is not the case of the accused that P.W.3 was not at all present in the house at the relevant time. There is nothing on record to show that P.W.3 was inimically predisposed towards A.2. If really P.W.3 and A.2 were at logger heads or vowed war to the knife, or could not see eye to eye, then P.W.3 might not have been allowed to stay in that house at all and for that matter, P.W.3 also might not have preferred to be in that house. P.W.3 in her deposition would highlight the fact that since three months anterior to the murder of her brother, she had been living in that house and such a statement was not in any way controverted.

16. In fact, the aforesaid suggestion from the defence side would strengthen her claim that she had been staying in the deceased's house for a pretty long time and in such a case, P.W.3 had the opportunity of knowing about the family background of the deceased Rajendran including the conduct and character of A.2 in regard to her relationship with A.1. The common sense approach would also further strengthen the prosecution case. P.W.3 had no motive at all to go to the extent of implicating or helping the police falsely to rope in A.2 concerning the murder of the deceased Rajendran, leaving the real culprit. In this connection, the decision of the Honourable Apex Court in Kartik Malhar v. State of Bihar reported in (1996) 1 Supreme Court Cases 614 could fruitfully be referred to and an excerpt from it would run thus: "18. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p.366, para 25)

"25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan' (AIR at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."

In this case, this Court further observed as under:

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

17. There is no clarity as to which property of A.2 was grabbed by P.W.3. Such suggestions put to P.W.3 by the defence are vague and superficial and the evidence of P.W.3 which is free from embellishment or artificiality, cannot be thrown away. While evaluating and analysing the evidence of a witness, the natural flow of narration should not be lost sight of. P.W.3's evidence is a' naturel and there is nothing to doubt her testimony.

18. P.W.4 even though labelled as an illicit arrack dealer, yet during cross-examination, her answer would highlight that she was not at the mercy of the police. The police even after citing her as a witness in this case, booked a case as against her relating to illicit sale of arrack and that is evident from her deposition during cross-examination as follows: "ePjpkd;wj;jpy; ,Uf;fpd;w v];. rutzd; vd; kPJ tp\ rhuha tHf;F jw;nghJ nghl;Ls;shh;."

[emphasis supplied]

19. In such a case, it is not known as to how P.W.4 by any stretch of imagination could be suspected as a witness who had bent upon uttering out falsehood by dancing to the tune of the police. In fact, P.W.4's evidence is trustworthy for the reason that already she faced several cases at the instance of the police and despite that, she being the neighbour of the deceased has come forward with truth. It is not as though P.W.4 is a police informer or living at the mercy of the police, but on the other hand, she is not in good terms with the police. It is therefore crystal clear that her evidence need not be looked askance at.

20. The learned Additional Public Prosecutor also would highlight correctly that the evidence of P.W.4 is free from embellishment or artificiality for the reason that while narrating what she had seen, she simply stated that at the intervening night of 16th and 17th July 1996, she had seen A.1 and A.2 rolling a cycle by having a wooden box and she never stated that she saw the deceased Rajendran having been kept inside the wooden box, etc.

21. Hence, for all these reasons, the evidence of P.W.4 is also admissible and reliable.

22. Inasmuch as P.W.4 also had the opportunity of knowing about the illicit intimacy between A.1 and A.2, her evidence is reliable and more so and a fortiori, it could be held that in such areas where people in the lower stratum of life, this sort of things of illicit intimacy would readily been known to the neighbours and discussed among them also. Hence, in this view of the matter, based on the evidence of P.W.3 and P.W.4 relating to the motive of the crime, it could rightly be held that motive has been proved beyond all reasonable doubts. Accordingly, the point No.(i) is decided as against the accused. Point No:(ii)

23. The argument as advanced by the learned Counsel for the appellants is that out of various witnesses relied on by the prosecution, P.W.6, P.W.9 and P.W.10 turned hostile and that P.W.3 and P.W.4 alone deposed about the circumstances and that too unconvincingly to drive home the guilt of the accused. Relating to the reliability of evidence of P.W.3 and P.W.4, the reasons adverted to supra for placing reliance on their evidence shall also be applicable for believing their evidence concerning the actual circumstances constituting the prelude to the commission of the crime. It was spoken to clinchingly and crisply by P.W.3 that on the fateful intervening night at 09.00 p.m., she saw A.2 serving brandy to the deceased Rajendran; A.2 was witnessing the television programme by raising the volume despite P.W.3 asked her to reduce it. In fact, A.2 had quipped as though the deceased was also witnessing a good film televised in the television. Thereupon, P.W.3 and her father were sleeping outside the house, the front door of which was latched from inside; at about 01.00 a.m., during the same fateful night, when P.W.3 knocked the front door of that house for getting some water to drink, the door was not opened. However, she gained ingress to the house through the back door which was kept open. P.W.3 after gaining ingress through the back entrance, found the children of the deceased Rajendran alone sleeping there. But, both the deceased Rajendran and A.2 were found missing. The wooden box and cycle which were used for distributing 'Murukku' were also found missing. Presumably after day break when she asked A.2 about the deceased Rajendran, the latter replied as though she had gone to Tanjore and that thereafter A.2 absented from her house by taking her youngest child with her. P.W.3 also would proceed to narrate that there was a massive search for her missing brother, the deceased Rajendran, but in vain. However, according to her, two days later, she heard that a dead body was traced from a cement tank in the tannery nearby Annanagar and thereupon, she went to the hospital and identified the dead body as that of her brother which was kept there.

25. P.W.3 was subjected to cross-examination separately on behalf of A.1 and A.2. But, her answers during cross-examination instead of discrediting her testimony, added additional strength to it. No material contradiction was elicited out during her cross-examination. As such her testimony is a most reliable piece of evidence in this case. During the fateful night, the absence of A.2 is of utmost importance and over and above that A.2's answer to the query of P.W.3 as to where she had been without being in the house at that night, when she wanted to have some water that P.W.3's brother had gone to Tanjore exposes her guilty conscience. P.W.3 would also highlight that after the incident, A.2 absented herself by taking her youngest child with her, which would further speak about her conduct. The illustration (h) to Section 8 of the Indian Evidence Act, would come to play as against her conduct as spoken to by P.W.3 after the occurrence.

26. P.W.4 in her deposition without any artificiality or giving room for any reasonable doubt, would narrate that on the fateful night, she heard her cow and calf making sound at the backyard of the house and she saw by standing from her backyard, A.1 and A.2 rolling a cycle with a wooden box on the carrier of that cycle. During cross-examination, she stressed the fact that she actually saw A.1 and A.2 at that time in the aforesaid manner. She never blindly for the purpose of supporting the prosecution case stated anything as though she saw the deceased being carried on the cycle in any manner. As such by peering the evidence of P.W.3 and P.W.4, the Court could have a clear and reliable picture as to how the deceased was taken from his house to the place of occurrence so to say to the cement tank of a dilapidated tannery which was one k.m., away from the house of the deceased.

27. It is therefore clear that the false answer given by A.2 to P.W.3 and P.W.4's testimony that she saw A.2 in the company of A.1 in rolling the cycle by having a wooden box, leaves no doubt in the mind of the Court that A.2 conspired with A.1 and both A.1 and A.2 murdered the deceased Rajendran.

28. Over and above that on the prosecution side, a very clinching piece of evidence was adduced. A.2's torn piece of saree was found at the place of occurrence near the dead body of the deceased Rajendran as evidenced by the mahazar and after arresting A.2, the police recovered the remaining part of the saree of A.2 in pursuance of the confession made by her. The experts in Forensic Department to whom the torn piece of saree found near the dead body and that remaining part of the saree, compared both and they gave the opinion as per Ex.P.21 to the effect that those pieces belonged to one and the same saree. It is therefore crystal clear that A.2 was present at the scene of crime and actually, it fastens her with criminal liability. The relevant portion of Ex.P.21 could rightly be extracted hereunder for ready reference: "The following items were received here on 26.08.1996 through PC.Cr.I.No.3006, Tr.M.Veeramani, under unbroken seals which corresponded with the sample sent viz:-

Item 1: Pieces of cement and chunam plaster on which were dark brown stains.

Item 2: Pieces of cement and chunam plaster Item 3: Earth mixed with stones and vegetable matter on which were dark brown stains.

Item 4: An used beedi labelled, "....h" Item 5: Pieces of partly burnt lungi with black and grey cross stripes. Item 6: A torn piece of violet coloured silken cloth with blue pink and green designs stitched along one end.

Item 7: Two used beedies each labelled "fhh" Item 8: A torn piece of lungi with blue, violet and yellow bands and violet designs

Item 9: Two pieces of violet coloured silken sari stitched together with blue, pink and green designs, stitched along one end Item 10: An orange coloured blouse

Item 11: A torn faded pink brassiere

Items were numbered in this laboratory

REPORT:- Detected blood on each of items 1 and 3 but not on any of items 2 or 4 to 11 (both inclusive)

Serology report will be sent to you separately Item 1(iv) and 1(viii) of Inspector's requisition have been forwarded to Chemistry division of this lab as such and the report will be sent to you separately along with the items.

Did not detect saliva on items 4 or 7.

Lungi pieces in items 5 and 8 were found to be dissimilar. Sari piece in item 6 form part of item 9."

29. The evidence of P.W.3 and P.W.4 if viewed in the wake of aforesaid scientific evidence, there could be no hesitation on our part to arrive at the firm conclusion that A.1 and A.2 only committed the murder of the deceased Rajendran and none else.

30. On the side of the appellants, the decision of the Honourable Apex Court in Narendra Singh and Anr. vs. State of M.P reported in 2005(2) Acquittal 128 [Supreme Court of India] has been cited to the effect that suspicion however strong, will not take up the place of proof. Adhering to the aforesaid decision only, the materials on record have been discussed and found that the prosecution in this case proved the relevant circumstances pointing towards the guilt of the accused.

31. Ex.P.2 is the observation mahazar which refers to M.O.11 the torn piece of saree. M.O.18 is the remaining part of the saree of A.2. It is the expert who compared M.O.11 and M.O.18 and arrived at the conclusion that both formed parts of one saree. M.O.18, in fact, was recovered by the police in pursuance of Ex.P.7, the relevant portion of the confession given by A.2. Ex.P.8 is the recovery mahazar which would show that M.O.18 was recovered from her house. P.W.1, the Village Administrative Officer, spoke about Ex.P.7 and the consequent recovery under Ex.P.8. The Investigating Officer P.W.13, spoke about it in detail and there is nothing to doubt his testimony relating to the voluntary confession given by A.2 and the consequent recovery.

32. The deposition of P.W.1, the Village Administrative Officer, is cogent and convincing as he portrayed that on 18.07.1996 on the information given by the village assistant at about 07.30 p.m., about the dead body being found in the aforesaid tannery, P.W.1 visited the place where the dead body was found and gave his complaint to the police as per Ex.P.1. Thereupon, the police registered the case as found in Ex.P.24, the printed First Information Report. P.W.1 also spoke about Ex.P.20, the mahazar prepared in his presence and also about the recovery of M.Os.1 to 11. Clearly and cogently, the Village Administrative Officer has highlighted the facts which are free from creating any cloud of doubt in the mind of the Court.

33. P.W.1 also expressed and expatiated in his deposition about the arrest of A.1 and A.2 and the relevant confessions recorded as volunteered by them and also about the recovery. M.O.12 cycle, and M.O.13 wooden box, M.O.14 old gunny bag, were recovered under Ex.P.5, mahazar in pursuance of Ex.P.4, the admissible portion of the confession given by A.1 on 22.02.1996.

34. P.W.5, Pandian, the younger brother of the deceased Rajendran spoke about the fact of handing over of the photograph of the deceased Rajendran which was taken during his life time, to the police. Ex.P.13 is the negative of that photograph. P.W.5 also would state that he identified the dead body of his brother. There is nothing to doubt his testimony.

35. P.W.6, whom the prosecution relied on to speak about the fact of he having seen the deceased being carried on a cycle by A.1 and A.2, turned turtle.

36. P.W.7, the Security Personnel of that dilapidated tannery, on sensing the bad smell emanating from the cement tank, looked into it and found the dead body and thereupon he informed to the assistant attached to the Village Administrative Officer. As such his evidence is quite natural.

37. P.W.8, Kathirvelu, the Photographer, deposed about the fact of he at the request of the police having taken four photographs of the deceased i.e, M.O.22 and the negatives which were marked as Ex.P.14.

38. At this juncture, it is just and necessary to refer to one other important piece of evidence which was placed before the trial Court on the prosecution side, so to say, the result of the superimposition test. Ex.P.23, is the report submitted by Assistant Director, Forensic Sciences Department, Mylapore, Chennai - 600 004, which would show that the skull which was collected from the dead body and sent for superimposition test belonged to the deceased Rajendran. The relevant portion of Ex.P.23, could be extracted hereunder for ready reference:

"We have carefully examined the skull, item 3 and the photograph item 1 on the following aspects.

The cranioscopic characteristics of the skull, item 3 were studied in comparison with the cephaloscopic manifestations of the face of the male in item 1 and the following correlations were established.

i) The short facial height and broad ovoid facial outline in the skull- item 3 very well correlated with the short facial height and broad oval facial outline seen in the face of the male in item 1.

ii) The low gonial angle and the lower coronoid in relation to the condyle the conspicuously flaring gonial eversions and the wide base of the metal triangle in the skull-item 3 very well correlated with the broad ovoid lower face, the conspicuous postero lateral prominence and wide chin seen in the face of the male in item 1.

iii) The strong and orbital profile, the medially angular and laterally arched course of brow ridge and the oblique ectoconchion-endoconchion axes in the skull- item 3 very well correlated with the deep set eyes, the medially angular and laterally arched course of eye brows and the oblique palpebral fissure axes seen in the face of the male in item 1.

iv) The conspicuously prominent bony netch in the nasion, the concavity at the root level and the raise towards the apex in the nasal bone ridge, the broad piriform aperture and the slightly arched subnasale-supradentale profile in the skull, item 3 very well correlated with the conspicuity of the root of nose, the concavity at the root level and subsequnet prominence of the bridge, the broad alse of nose and the partly exposed nasal septum seen in the face of the male in item 1.

v) The prominence of the malarbone in the skull item 3 well correlated with the prominence of the cheek seen in the face of the male in item 1.

vi) The downwardly pointing tip of the mastoid process and the great prominence of the supramastoid crest with the feeble mastoid crest in the skull item 3 very well correlated with the attached ear lobe and the conspicuously protruding upper helix with relatively flat lower helix seen in the face of the male in item 1.

Further, the image of the skull, item 3 was superimposed on the image of the facial photograph of the male in item 1 using the Video Superimposition Device for demonstrating the fitness of the former in the latter. TECHNIQUE:

The biorbital breadth of the skull, item 3 was measured as 9.4 cms and was used in bringing out the life size enlargement of the face of the male in item 1. The flexion/extension factor (forward/backward tilt) and rotation factor were calculated from the life size enlargement and were used for proper orientation of the skull. The life size images of the skull and face of the male were brought out on the T.V.Screen and superimposed. During superimposition, the following observations were made. a) The anthroposcopic land marks on the face in item 1 and those on the skull, item 3 fitted fairly well.

b) The outline of the face in item 1 and the outline of skull, item 3 were found to be in fair congruence.

OPINION:

The skull, item 3 could very well have belonged to the male individual seen in the photograph item 1.

[emphasis supplied]

NOTE:

The black and white negative described as item 2 was found to be source negative of photograph described as item 1 and hence was not used during the examination."

39. As such the aforesaid extract in Ex.P.23, the expert opinion is self- explanatory and nothing has been highlighted during arguments as to why it should not be believed. Even though on the appellants/accused's side, the arguments were attempted to be advanced as though the identity was clear and the corpus delicti was not that of the deceased Rajendran; such an argument could not be pressed further in view of the clinching evidence of the experts coupled with the aforesaid photographs and negatives of the deceased. Over and above that, the answer given by A.2 during examination under Section 313 Cr.P.C., would show that according to her, she identified the dead body as the one that of her husband. In such a case, the identity of the deceased in this case is beyond doubt and P.W.9 whom the prosecution relied on to speak about the fact of plastic can which A.1 purchased for getting kerosene turned hostile.

40. P.W.10 Kandasamy, the Head Constable, would speak about the fact of he having taken the dead body to the hospital with the requisition of the Investigating Officer to the Doctor for performing post-mortem on the dead body and it is a formal piece of evidence. P.W.11, Sundaram, the translator of the Magistrate Court concerned with reference to Exs.P.15 to P.23 spoke about the fact of the Court he having sent the various material objects and documents to the experts concerned for obtaining the opinion and there is nothing to doubt his testimony. P.W.12, Senthur Pandian, whom the prosecution relied on to speak about the purchase of five litres of kerosene and some sugar from his shop turned hostile.

41. P.W.13, the Investigating Officer narrated about the investigation conducted by him.

42. On the appellants' side one discrepancy was highlighted in the evidence. P.W.4's husband namely Pandian was alleged to have been examined by P.W.14, the Investigating Officer who later took up the investigation. It transpired that the said Pandian died. However, P.W.14 the Investigating Officer who took up the investigation from P.W.13, the first Investigating Officer projected the case as though he recorded the evidence of Pandian on 22.02.1996. But, P.W.13 during cross-examination would state that on 16.07.1996 on which date, the said Pandian claimed to have witnessed A.1 and A.2 carrying the deceased Rajendran on the cycle, was in jail in connection with the case in CrlNo.677 of 1996 registered by P.W.13 relating to the offence of selling poisonous arrack. However, P.W.14 would deny the said fact. The fact remains that the said Pandian died and he was not examined as a witness. In the absence of any clinching evidence and documentary evidence relating to Pandian's detention, we cannot arrive at the conclusion that the Investigating Officer P.W.14 overstepped his function and fabricated false evidence by allegedly recording the evidence of Pandian.

43. In these circumstances, in view of our discussion supra, it is clear that the trial Court found both the accused guilty under Section 302 read with section 34 I.P.C and under Section 302 read with Section 201 I.P.C correctly and accordingly imposed the sentences. Accordingly, the point No.(ii) is also decided as against the accused.

Point No:(iii)

44. In view of the ratiocination and the reasons adhered to, for deciding the aforesaid points, we hold that there is no infirmity in the judgment of the trial Court. Accordingly, the point No.(iii) is also decided as against the accused.

45. In the result, absolutely there is no merit in these appeals and accordingly, the appeals are dismissed, confirming the convictions recorded and sentences imposed by the learned I Additional Sessions Judge - cum - Chief Judicial Magistrate, Trichy, in S.C.No.111 of 1998 dated 11.09.1998. It is found that the appellants/accused Nos.1 and 2 are on bail. Hence, the bail bonds executed by them shall stand cancelled. The Sessions Judge concerned is directed to take necessary steps to secure the presence of the accused Nos.1 and 2 and commit them to jail to undergo the remaining period of sentence. The sentence already undergone by them shall be given set off. 


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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