S. Tamilvanan, J. - (1.) THE appeal is directed against the Judgment, dated 18.08.2003, made in S..C. No.1 of 2002 on the file of the Principal Sessions Judge, Dharmapuri at Krishnagiri.
(2.) THE appellant herein is the sole accused in the sessions case referred above, who was convicted for an offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life and also to pay a fine of Rs.5000/- with default sentence. As per the prosecution case, the appellant on suspicion that the deceased Noorsha had illicit intimacy with his wife, with the intention to kill him, took Noorsha to his garden land belongs to the appellant on 09.10.1998 and at about 5.30 p.m to 5.45 p.m, inflicted multiple injuries on the vital parts of the deceased by bill hook and caused his death, and thereby committed an offence of murder, punishable under Section 302 IPC. The following point was framed by the learned Sessions Judge : " Whether the charge for an offence under Section 302 IPC against the accused has been proved beyond reasonably doubt? Whether the accused is guilty of the above mentioned offence with which he stands charged? If so, what is the punishment that can be awarded to the accused ? " In order to establish the guilt against the accused, the prosecution has examined as many as 11 witnesses, apart from marking 13 Exhibits and 8 material objects to establish their case. Neither oral, nor any documentary evidence was let in, at the instance of the appellant herein. The brief facts and evidence of the prosecution case leading to the conviction are as follows : (i) The deceased Noorsha, brother of Kadher Basha, P.W.1, and Thimmarayappa, the appellant / accused were once friends and the appellant used to take the deceased Noorsha to his garden land, thereby the deceased Noorsha had developed intimacy with the wife of the appellant. On suspicion, the appellant did not speak with the deceased for some time, then they were in talking terms. On 09.10.1992, at about 4.00 pm, the appellant on the pretex of his elder brother wanted to meet the deceased for digging pits for planting coconut saplings, had taken the deceased Noorsha to his garden land from his house. At about 6.00 pm, P.W.2, rushed to the residence of P.W.1 and informed P.W.1, that his brother Noorsha was done to death , by inflicting multiple cut injuries and that the dead body was found in a pit of the garden land belongs to the appellant. Immediately, P.W.1, his parents and others went to the scene of crime and found the dead body of Noorsha in a pit with various cut injuries, then P.W.1 went to Shoolagiri Police Station and gave oral complaint, that was reduced into writing, wherein he affixed his thumb impression, the same was marked as Ex.P.1. The said complaint was registered by the Head Constable, who was in charge of the police station on 09.10.1998 at about 8.00 pm, in Cr.No.611/98, under Section 302 IPC. The Inspector, Shoolagiri Police station, P.W.10, after receiving the First Information Report, Ex.P.11, took up the investigation and proceeded to the scene of crime. (ii) Accordingly, on 10.10.1998 at about 2.00 am, the Investigating Officer, P.W.10, went to the scene of crime, as it was night time, he could not do anything, hence, again he went to the scene of crime at about 6.30 a.m. on the same day and prepared observation mahazar, Ex.P.2 in the presence of P.W.5 and one Riaz. The rough sketch prepared by the Inspector, P.W.10 was marked as Ex.P.12. He recovered a blood staind crow bar, M.O.5, blood stained spade, M.O.6, blood stained earth, M.O.7 and sample earth, M.O.8 from the scene of crime in the presence of the witnesses, under a mahazar. Between 7.30 a.m. and 10.30 a.m, he conducted inquest on the dead body of the deceased Noorsha in the presence of panchayatdars and witnesses. The inquest report prepared by him was marked as Ex.P.13. Then, the dead body of Noorsha was sent by the investigating officer for postmortem to the Government Hospital, Hosur, through the constable, P.W.7 with a requisition letter for conducting post-mortem. (iii) On the 10.10.1998, at about 3.30 p.m, P.W.10, the inspector on information went to Shoolarigiri-Hosur main road near Koneripalli bus stand and arrested the appellant in the presence of P.W.6 and one Ramesh. While he was enquired, the appellant voluntarily gave a confession statement. (iv) The confession statement given by the appellant was recorded by P.W.10, in the presence of the witnesses, P.W.6 and Ramesh. Pursuant to the confession given by the appellant, he was taken to a place on the southern side nearby a bridge on the Thirumalai Gouni Kotta - Koneripalli Road at about 5 p.m, where the appellant took out one blood stained bill hook (Motchu) M.O.1, which had been hidden in a nearby bush and handed over the same to Inspector, P.W.10, who recovered the same from the appellant, under the cover of a mahazar Ex.P.3, in the presence of the said witnesses. P.W.3 turned hostile. (v) The wife of the deceased who was examined as P.W.4, has deposed that the deceased and the accused were once close friends and subsequently, enmity arose between them due to money dealings and they were not in talking terms, on the date of occurrence at about 3 p.m, the accused came to her house and informed the deceased, that his elder brother, the president of the village panchayat asked him to bring the deceased. Accordingly, her husband Noorsha went along with the accused to Thimarayappa Garden. Subsequently, P.W.2 came and informed that Noorsha was done to death and that his body was found in a pit in the said garden with bleeding injuries. P.W.2, further informed that he had seen the appellant running away from the scene of crime. On hearing the news, P.W.4, fell unconscious and hence, she did not know anything about the complaint given by P.W.1. Only on the next day, she was enquired by the Police. (vi) P.W.5 is one of the witnesses to the observation mahazar, Ex.P.2. He signed as witness along with one Riaz. As per his evidence, he was brought to the scene of crime in a police jeep and that the observation mahazar, Ex.P.2 was prepared by P.W.10 in the presence of himself and the said Riaz. (vii) P.W.6 was one of the witnesses to Ex.P.4, the admissible portion of confession statement recorded by P.W.10, leading to the recovery of the blood stained bill hook (motchu), M.O.1. According to him, the appellant gave the confession statement before P.W.10 in the presence of himself and one Ramesh, the admissible portion of the confession statement was marked as Ex.P.4. Pursuant to the confession, when he was taken to the place stated by the appellant, he took out the bill hook (motchu), M.O.1, hidden in a bush and handed over the same, which was recovered by the Inspector, P.W.10, under Ex.P.3, in which he signed as witness along with the said Ramesh. (viii) P.W.7 was the Head Constable attached to Shoolagiri Police Station, who on the direction of the investigating officer, P.W.10, had taken the dead body of Noorsha to the Government Hospital, Hosur and entrusted the same to the duty Doctor along with a requisition letter for conducting postmortem. After postmortem, he recovered the apparels, namely, Jetti, Banian and Lungi, M.O.2 to M..O.4 recovered from the dead body and handed over the same to the investigating officer. (ix) P.W.8 was the Head Clerk attached to the Judicial Magistrate Court No.I, Hosur, who sent the material objects for chemical analysis on 24.03.2003, as directed by the Judicial Magistrate. Ex.P.5 is the letter given by the investigating officer requesting the court to send the case properties for chemical analysis, Ex.P.6 is the office copy of the covering letter of the Judicial Magistrate, No.I, Hosur, under which the case properties were sent to the Assistant Director, Regional Forensic Science Laboratory, Salem for chemical analysis. Ex.P.7 is the Chemical Examination Report and Ex.P.8 is the Serology Report received by the Judicial Magistrate, the same were marked through P.W.8. (x) The Doctor attached to the Government Hospital, Hosur, who conducted autopsy on the body of Noorsha was examined as P.W.9. The postmortem certificate issued by the Doctor was marked as Ex.P.10. The Doctor who conducted the postmortem has found the following symptoms on the dead body of Noorsha : External Injuries : (1) an incised wound on the back of right elbow measuring 4x3x bone deep (2) two incised wounds over the front of the right side shoulder each measuring 5x3x bone deep: (3) an incised wound on the right thigh measuring 3 x 1 x.1 (4) an incised wound on the left side of neck measuring 4x6x6 deep (5) an incised wound on the back of neck measuring 6x6x6 deep (6) two incised wound over both ears measuring 4x1/4 x 1 leaving only a part of pinna on both sides attached (7) two incised wounds over the front of the left side shoulder (8) an incised wound over the left upper back measuring 6x3x4 (9) an incised wound over the left forearm measuring 6x 3 and (10) an incised wound over the lower jaw measuring 3x2x1. Hyoid bone intact. Ribs no fracture, Heart - 250 gms, right chambers few of blood left empty. Lungs - right 400 gms, Left 375 gms, C/s pale, liver - 1400 gms, C/s - pale stomach contains 200 ml of semi-digested rice food particles. Spleen 90 gms, C/s Pale, Kidney - 80 gms each. C/s. Pale bladder - empty, skull no fracture membrane intact, Brain - 1000 gms, no haemorrahage, C/s - Pale, Bone of the skull normal. Post mortem concluded on 4.00 pm on 10.10.98. The Doctor, P.W.9 has opined that the deceased would appear to have died of shock and hemorrhage, due to multiple injuries sustained by him. (xi) P.W.11, is the successor to P.W.10, Inspector of Police, attached to the investigating police station. After taking up the investigation, P.W.11 examined P.W.9, the doctor who conducted postmortem on the body of the deceased and issued Ex.P.10, postmortem certificate and recorded his statement. P.W.7, who had handed over the dead body for postmortem was also examined as P.W.11. After completing the investigation, he laid the final report against the appellant / accused under Section 302 IPC. The incriminating circumstances that are available in the evidence of the prosecution witnesses against the appellant were put to him under Section 313 Cr.P.C, and while questioning about the same, the appellant denied each and every incriminating circumstance as false and contrary to facts. No witness was examined and no document was marked at the instance of the appellant.
(3.) CONSIDERING the oral and documentary evidence adduced in this case and the arguments advanced by both sides, the learned Sessions Judge held that the charge framed against the appellant / accused under Section 302 IPC has been proved beyond reasonable doubt and hence convicted him under Section 302 IPC and sentenced to undergo imprisonment for lift and to pay a fine of Rs.5,000/- and in default, to undergo for a further period of six months Rigorous Imprisonment. Aggrieved by which, this appeal has been preferred by the accused. The learned counsel Mr.S.Parthasarathi, appearing for the appellant herein contended that the entire case is based on circumstantial evidence, since there was no eye witness to speak about the occurrence. According to the learned counsel for the appellant, there was no motive for the appellant / accused to commit the grave offence and that the motive alleged by P.W.4, wife of the deceased is contrary to the motive alleged by the complainant, P.W.1 in the complaint marked as Ex.P.1. According to him, the prosecution has not established the guilt against the appellant beyond all reasonable doubts. It is not in dispute that the prosecution case is based on circumstantial evidence. The Honourable Supreme Court has held in Bibhachha v.State of Orissa reported in 2001 SCC (cri) 1132, that in a case solely based on circumstantial evidences, the guilt of the accused has to be established with the cumulative effect of all the circumstances, so as to undoubtedly indicate the guilt of the accused, excluding any other hypothesis. In the above referred case, the Honourable Apex Court has ruled thus : " We are of the view that the prosecution has proved that each one of the circumstances afore mentioned points to the guilt of the accused and the cumulative effect of all the circumstances too undoubtedly indicates guilt of the accused excluding any other hypothesis. More so, in this case, when the defence of the accused is one of the total denial. We have no good reason or valid ground to interfere with the impugned judgment." In the light of the decision, the chain of events of the circumstantial evidence adduced by prosecution has to be gone into. ;