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PETITIONER: JOSEPH S/O KOOVELI POULO

       Vs.

RESPONDENT: STATE OF KERALA

DATE OF JUDGMENT:       27/04/2000

BENCH: S.N.Variava, K.T.Thomas, Doraiswami

JUDGMENT:

     J  U D G M E N T Raju, J.  The appellant, who was ableto  escape from the long arm of  law due to his acquittal  by the  trial court was soon made to realise that the sword  in the  hands  of  justice never fails to vindicate  itself  in preserving  ultimately law and order in the society when  he was  indicted for offences under Sections 376, 392 and  302, IPC,  and imposed with punishments of imprisonment for  life under  Section 302, IPC, and rigorous imprisonment for seven years  each  on the other counts, to run concurrently.   The case  of  the prosecution is that on 16.09.94 at about  5.30 p.m.,  the appellant, representing himself to be the husband of  one  of  the sisters of Gracy the deceased went  to  St. Marys  Convent, Vandoor, where she was employed as  Kitchen maiden  and  on  a  false pretext that her  mother  was  ill seriously  and had been admitted to Medical Trust  Hospital, Ernakulam,  took  her away with the permission of PW-5,  the Sister  incharge  of the Convent at the relevant time.   The further  case is that the appellant after taking the  victim out  of the Convent, had her walk along with him by the side of  the Railway Line in Koratty and thereafter at a desolate place  not  only raped and robbed her of her ornaments,  but laid  her  on the Rail track to be run over by  the  passing train.  On 17.09.94, PW-2, the key man attached to Karukutty Railway  Station, found the dead body of a female on the  up track  railway  line and informed PW-1, the Station  Master, who,  in  turn, brought it to the notice of  Koratty  Police Station  as  per Ex.P1, on which PW-28, the Head  Constable, registered  an  FIR in Crime No.166/1994 under  the  caption unnatural  death.  An inquest was held over the dead  body and  along with the findings in the inquest report, a  brown blouse,  a white brassier, a brown polyester sari with  blue and  green  design and two under skirts, one blue in  colour and  the  other  green  were  also  seized,  besides  taking photographs  of  the  dead body.  The autopsy  was  done  by PW-10,  the  Lecturer  and Police Surgeon  attached  to  the Forensic Department of Medical College, Trichur, on 20.09.94 and he submitted his report under Ex.P4.  While matter stood thus, it appears that PW-7, the mother superior and incharge of the Convent, was informed on 18.09.94 over telephone by a person  claiming to be one Joseph that Gracy would return to the  Convent  in a few days since her mother had  recovered. Finding  that  she  did  not so return  on  05.10.94,  PW-8, another  Sister and inmate of the Convent, went to the house of  the  victim  and  learnt that the mother  of  Gracy  was neither  ill  nor was admitted in any Hospital and that  she did not at all return home thereafter.  PW-9, the brother of deceased, went and made enquiries in the Convent and when he

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was  asked  to  come the next day, on 06.10.94  PW-9,  PW-26 (Member  of  the  Panchayat),  the  accused  and  two  other relatives  of  the deceased went and got other  details  and even  at  that  stage  the accused was  said  to  have  been identified  by  PW-5 as the person who took Gracy  from  the Convent.   PW-9  thereafter lodged a complaint,  Ext.   P18, with the Circle Inspector of Police, Pudukkad, and an FIR in Crime  No.281/94  was  registered  under  the  caption  man missing.   During  the course of investigation, PWs-5 to  7 and  9 were asked to meet PW-29, the Sub-Inspector,  Koratty Police  Station, when they seem to have also identified  the photographs  to be that of Gracy and that the clothes  shown also  belonged  to her.  Statements were also recorded  from them.   On 09.10.94, PW-30, the Circle Inspector of  Police, Chalakkudy,  took up the investigation, visited the scene of occurrence,  prepared  a Mahazar, Ex.P22, and  arrested  the accused  on  the  same  day.  As per the  statement  of  the accused,  PW-30 seized M04-diary and Ex.P7, a slip from  the accused  under  Ex.P6 Mahazar.  MOs 1 to 3 were also  seized thereafter  under  Ex.P5,  as per statement  Ex.P5(a).   The vaginal  swab  and  smear, collected during  the  course  of autopsy as also the clothes taken from the dead body and the dhoti recovered at the instance of the accused were all sent for  chemical examination and reports in Ex.P20 and 21  were obtained.   PW-30  questioned the witnesses, recorded  their statements  and  completed  the  investigation,  though  his successor   in  office  PW-31   verified  the  records   and ultimately  laid the charge sheet before Court.  The learned Magistrate,  who took cognisance of the case, on finding the offences  to  be  such, exclusively triable by  a  Court  of Sessions, committed the case to Sessions Court, Trissur, and thereby the case stood transferred to trial before the First Additional  Sessions  Judge.  After preliminary hearing  and framing of charges under Sections 376, 392 and 302, IPC, the accused  having pleaded not guilty and claimed to be  tried, the  prosecution  let in evidence by examining PWs-1 to  31, besides  marking  Ex.P1  to  P22 and MOs 1  to  4  were  got identified  and  also  marked.   Though there  was  no  oral evidence  let  in  for the defence, Exs.D1 to D13  -  marked portions  of  statement of some of the PWs, were marked  for the  defence.  The accused when questioned under Section 313 of  the  Criminal  Procedure Code, denied  bluntly  all  the incriminating  circumstances  brought  out against  him  and reiterated  about  he being innocent.  The learned  Sessions Judge,  on  the evidence on record, came to  the  conclusion that  the  body  found  on the railway  track  was  that  of deceased  Gracy,  who was working at St.  Marys Convent  at Vandoor,;   that she met her death as a result of being  run over  by a train;  that there is clinching evidence to  show that it was the accused who had taken Gracy at 5.30 p.m.  on 16.09.94  on  the pretext that her mother was seriously  ill and that the said circumstance stand fully established.  But at  the  same it was held that there is no evidence to  show that  the accused committed rape on Gracy, or that it is the accused  who  sold the ornaments of Gracy (MOs 1 to  3)  and could  not, therefore, be responsible in any manner for  the death of Gracy.  The prosecution was able to, in the view of the  Sessions  Judge, establish only a strong suspicion  and since  it  cannot take the place of proof, the  accused  was entitled  to the benefit of doubt and, therefore,  acquitted him  of  all the charges.  The State pursued the  matter  on appeal  before  the High Court and a Division Bench  of  the Kerala  High  Court, on re-appreciation of the  evidence  on record,  differed from the findings recorded by the Sessions Court on the guilt or innocence of the accused and found him

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guilty  of the charges levelled against him.  The High Court after  specifically noticing the several incriminating facts which inevitably and necessarily led to an hypothesis of the accused  being  guilty of the charges levelled  against  him convicted  him of the offences, charged with.  The manner of consideration  of  the evidence and the other  materials  on record,  as  also  the  method of analysis as  well  as  the ultimate  reasoning  and  conclusions   arrived  at  by  the Sessions  Court  were  held to be perverse and  resulted  in gross  miscarriage  of  justice.    Hence,  the  High  Court dislodged  some  of  the  findings of the  trial  court  and finally  the accused was held guilty of the charges levelled against  him  and  accordingly punished for the  same.   The learned  counsel  for  the   appellant  contended  that  the evidence  on record established sufficiently the case to  be one  of  suicide and not homicide and that at any  rate  the chain  of circumstances is not so complete as to lead to the hypothesis  of guilt of the accused.  It was also  contended that  the deceased had not been taken away from the  Convent by the accused as alleged and even if that be so, the nature of  injuries  found on the body, the probable time of  death and the other materials on record, if at all may only create a  suspicion  as  observed by the trial judge and  that  too based  upon surmises against the appellant, but those at any rate are not sufficient to prove the guilt beyond reasonable doubt.   The  learned  counsel   for  the   respondent-State submitted  that the trial court had not only over simplified the  cumulative effect of every vital circumstances  leading towards  the  guilt  of  the accused but  the  analysis  and consideration  of evidence proceeded on too technical  lines in  a superficial manner and, therefore, the High Court  was right  and justified in reversing the findings of the  trial court.   Argued  the  learned  counsel  for  the  respondent further  that  the failure on the part of the  appellant  to give  any acceptable explanation as to what happened to  the deceased  who was not only last seen alive together with the appellant but also not seen thereafter alive anywhere itself is  sufficient  to indict the appellant in this  case.   The High  Courts being a verdict of reversal of the  acquittal, the  learned counsel on either side also took us through the evidence  and  other  materials  on record,  at  length,  to substantiate  their respective stand.  So far as the case on hand  is concerned, there is direct evidence of the  Sisters of  the Convent where the deceased was working, PWs-5 and  6 to  prove beyond reasonable doubt that it was the  appellant who  had taken the appellant from the Convent at about  5.30 p.m.,  on  16.09.94  on  the pretext  that  her  mother  was seriously  ill and hospitalised.  Even the trial court which returned  a verdict of acquittal was very much convinced  of this  fact  against  the appellant and  satisfied  with  the evidence  of  PWs-5  to  8.  They had  nothing  against  the accused  and  no  reason to speak falsely to  implicate  the appellant,    and    despite      searching    and    severe cross-examination  made  nothing  could be  brought  out  to discredit  their  evidence.   PW-  9,  the  brother  of  the accused,  and  PW-26,  the  member of  the  Panchayat,  also confirmed  that PWs-5 and 6 had identified the appellant  as the  person  who had taken away Gracy on 16.09.94 when  they went  to  enquire  about the deceased,  accompanied  by  the accused  also.   The learned Judges of the High  Court  also were  got convinced with the conclusions of the trial  court in  this  connection and accepted the same to be correct  on the  basis of the evidence of PWs-5 and 6, and PWs-9 and 26. We  see  no  infirmity whatsoever either in  the  manner  of appreciation  of  their evidence or the reasons assigned  in

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support  of  the same and, therefore, this finding  of  fact appears  to  be well justified on the materials  on  record. The same does not also call for interference in this appeal. As  for  the  homicidal  fact is concerned,  there  is  only circumstantial  evidence.   It  is often  said  that  though witnesses  may lie, circumstances will not, but at the  same time  it  must  cautiously be scrutinised to  see  that  the incriminating  circumstances are such as to lead only to  an hypothesis of guilt and reasonably exclude every possibility of  innocence of the accused.  There can also be no hard and fast  rule as to the appreciation of evidence in a case  and being always an exercise pertaining to arriving at a finding of  fact  the same has to be in the manner  necessitated  or warranted  by  the peculiar facts and circumstances of  each case.  The whole effort and endeavour in this case should be to find out whether the crime was committed by the appellant and the circumstances proved form themselves into a complete chain  unerringly  pointing to the guilt of  the  appellant. The  formidable  incriminating   circumstances  against  the appellant, as far as we could see, are that the deceased was taken  away from the Convent by the appellant under a  false pretext  and she was last seen alive only in his company and that  it is on the information furnished by the appellant in the course of investigation that the jewels of the deceased, which were sold to PW-11 by the appellant, were seized under Ex.P5  duly  attested  by PW-12 and that PWs-5  and  6  were categorical in their evidence that those jewels were worn by the  deceased at the time when she left the Convent with the appellant.   PW-10,  who  conducted the post  mortem,  noted about  20  injuries in detail in his Report, Ex.P4.   Though the   learned  counsel  for   the  appellant  attempted   to substantiate  that some of the injuries taken together  with height  of  the deceased and the width of the railway  track could not have possibly resulted by laying the victim on the track  and, therefore, it should be reasonably presumed that the  deceased committed suicide by jumping before the moving train, we are unable to persuade ourselves to agree with the said  line  of  thinking  since it would  require  too  many hyper-technical  assumptions  to  be made  to  believe  such suggestions.   Having regard to the categorical and positive medical  opinion that persons who commit suicide usually  do not  lay  in such posture and the further evidence of  PW-10 that  though  he  could  not   state  that  the  victim  was strangulated  before  she was laid on the railway track,  he was  at any rate definite in his opinion that the nature and type  of  injuries sustained by the victim is suggestive  of only  a  case  of homicide.  Though the nature of  all  such injuries  could not rationally be explained, they could very well  be inflicted when the body got twisted and pushed away from its original position due to the reaction of life-force in  the  body the moment it first got into contact with  the moving train and also on account of being thrown away due to the  impact  of the fast moving train.  There is nothing  on record  to suggest or even surmise a plausible reason of her own  on  that  evening  for the victim  to  commit  suicide. Consequently,  the  theory of suicide suggested to save  the appellant  seem  to  be  more a matter  invention  based  on imagination  than  even  a remote possibility  warranted  or could reasonably be justified on the proved facts.  PWs-5 to 8 are the inmates of the Convent holding different positions therein  and  all  of  them identified MOs 1  to  3  as  the ornaments  belonging to the deceased Gracy and which she was wearing  when she left the Convent with the accused.   PW-9, the brother of the victim, also identified the jewels.  They have  also  spoken in unison to the other details  relevant,

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which   when  cumulatively  taken   up   for   consideration reasonably  as  well as with great certainty  establish  the various   incriminating   factors   against  the   appellant involving  with  the  crime,  which, if  at  all,  could  be properly  and reasonably be explained only by him.  But they remain  totally undeciphered and unexplained by the attitude of  total denial of everything by the appellant.  PW-11  was working  as  Manager  in the Jewellery Shop in  question  at Angamaly where the appellant was said to have taken MOs 1 to 3,  and  sold them for Rs.5,103/-.  Before actual sale,  the jewellery  was weighed and the slip, Ex.P7, seized from  the diary  of the appellant, was said to have been prepared  and given  to him at that time.  The worker in the Shop,  PW-14, who  prepared  the slip after weighing the MOs 1 to  3,  has also  identified the jewels and the slip.  PW-12 is the gold platter  having  his Shop adjacent to the Jewellery Shop  in question.   Their evidence, though certain discrepancies not so material as to effect their truthfulness are attempted to be  pointed out, positively prove that only the accused sold those  jewels representing to be that of his wife and  money was urgently required to meet some hospital expenses.  There is  no reason for them to either falsely implicate or depose against the appellant and we see no relevant or valid reason to  disbelieve them.  The adverse comments made by the trial judge  against  their evidence merely on account of  certain minor   discrepancies  are  neither   justified  nor   those discrepancies  could  themselves  be said to  be  enough  to detract  from  the  truthfulness  or  genuineness  of  their deposition.   PW-17, a former employee of the accused in his quarry,  was  shown  to  have been paid  Rs.2,500/-  by  the accused  and though the prosecution would attempt to connect the  same  with  the sale proceeds of the jewellery  of  the deceased,  PW-17 could not specifically remember the  actual date  of the said payment.  The appellant could not  explain how  he  came into possession of the ornaments belonging  to and  worn  by the deceased when she left the Convent on  the evening  of  the fateful day with him.  As noticed  earlier, the deceased was last seen alive only with the appellant and thereafter she neither returned to the Convent nor her home, alive  and not found anywhere else also by any one,  outside the  company  of  the appellant.  Taking  advantage  of  the discrepancies pointed out by the Sessions Judge, the learned counsel  for  the appellant also tried to contend  that  the evidence of PWs-11 to 14 is not trustworthy.  It is not that every  discrepancy or contradiction that matters much in the matter  of  assessing the reliability and credibility  of  a witness  or  the  truthfulness of his version.   Unless  the discrepancies  and  contradictions  are   so  material   and substantial  and that too are in respect of vitally relevant aspects  of  the  facts  deposed, the  witnesses  cannot  be straightaway  condemned and their evidence discarded in  its entirety.  On going through the entire evidence of PWs-11 to 14,  we  are unable to come to the conclusion that they  are not  speaking  the  truth  or   that  they  cannot   inspire confidence in the mind of any reasonable person or authority to  adjudge  disputed  questions of fact, so  as  to  eschew entirely their evidence from consideration, whatsoever.  The incriminating  circumstances  enumerated above  unmistakably and  inevitably  lead  to  the guilt of  the  appellant  and nothing  has  been highlighted or brought on record to  make the  facts proved or the circumstances established to be  in any  manner in consonance with the innocence at any rate  of the appellant.  During the time of questioning under Section 313,  Cr.P.C.,  the appellant instead of making at least  an attempt   to   explain   or    clarify   the   incriminating

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circumstances  inculpating him, and connecting him with  the crime  by his adamant attitude of total denial of everything when  those circumstances were brought to his notice by  the Court  not  only  lost  the   opportunity  but  stood   self condemned.   Such incriminating links of facts could, if  at all,  have  been  only explained by the  appellant,  and  by nobody else they being personally and exclusively within his knowledge.   Of  late, Courts have, from the falsity of  the defence  plea  and  false  answers   given  to  Court,  when questioned,  found the missing links to be supplied by  such answers   for   completing  the   chain   of   incriminating circumstances necessary to connect the person concerned with the  crime committed (see State of Maharashtra Vs.  Suresh - 2000(1)  SCC  471).   That  missing   link  to  connect  the appellant-accused,  we  find  in this case provided  by  the blunt  and  outright  denial  of   every  one  and  all  the incriminating  circumstances pointed out which, in our view, with  sufficient  and  reasonable  certainty  on  the  facts proved, connect the accused with the death and the cause for the  death  of Gracy.  For all the reasons stated supra,  we have  no  hesitation  to  agree with  the  findings  of  the Division  Bench  of  the High Court  holding  the  appellant guilty  of  offences  under Section 302 for  committing  the murder of Gracy and for robbing her of her jewellery worn by her  -  MOs 1 to 3, under Section 392.  The deceased  meekly went  with  the accused from the Convent on account  of  the misrepresentation made that her mother was seriously ill and hospitalised apparently reposing faith and confidence in him in view of his close relationship - being the husband of her own  sister,  but  the  appellant seems  to  have  not  only betrayed  the  confidence  reposed  in  him  but  also  took advantage  of  the  loneliness of the  hapless  women.   The quantum  of  punishment  imposed is  commensurate  with  the gravity  of  the  charges  held  proved  and  calls  for  no interference  in our hands, despite the fact that we are not agreeing  with  the  High Court in respect of  the  findings relating  to the charge under Section 376.  The charge under Section  376, IPC, is mainly fastened upon the appellant  on the  ‘last seen together theory.  The factum of rape of the deceased  is  sought to be proved from Ex.P20, a  report  on examination  of vaginal smear collected and said to  confirm the  presence of semen and spermatozoa, indicating that  she should  have  had  sexual   intercourse  before  her  death. Ex.P21, chemical report, also showed that semen was detected in  one  of  the  under  skirts found on  the  body  of  the deceased.   Ex.P8, certificate issued by PW-15, the  doctor, also  showed that the accused appellant was potent.  But  in the  Report,  Ex.P21,  it was specifically stated  that  the dhoti  of the appellant, subjected to chemical  examination, contained  no  stains of blood or semen.  If there had  been any  forcible sexual intercourse, the victim must have  made some  strong  resistance  being a grownup lady  and  in  the process,  some  injuries  would  have   been  found  on  the vagina/private  parts  of  the  body  or  some  other  parts indicative of any such use of force and it would be too much to  assume that there would have been no injuries whatsoever on  the body, on this account.  Though injuries on the  body is  not  always a must or sine qua non to prove a charge  of rape,  having regard to the case of the prosecution that the victim  had been subjected to brutal rape and forced  sexual intercourse,  this aspect of the matter cannot be completely lost  sight  of.  The deceased was stated to be of about  26 years  age, when she died and she is the sister of the  wife of  the  appellant.   It is not as though  they  were  shown earlier  to  be on inimical terms.  Anything possible  might

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have happened and the facts found proved do not irresistibly lead to the only conclusion of the guilt of the appellant in respect of an offence under Section 376, IPC.  Consequently, we  are  prepared  to  give  the benefit  of  doubt  to  the appellant  and acquit him of the offence under Section  376, IPC, and the conviction recorded and sentence imposed by the High  Court upon the appellant on this account is set aside. For  the  reasons stated above, except for the  modification made in respect of the charge under Section 376, IPC, we see no  reason to interfere with the judgment of the High Court, in  other respects pertaining to the charges under  Sections 302  and  392, IPC, and the appeal relating to the  same  is dismissed.