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CASE NO.:

Appeal (crl.) 270 of 1996

PETITIONER:

Babu s/o Raveendran

RESPONDENT:

Babu s/o Bahuleyan & Anr.

DATE OF JUDGMENT: 11/08/2003

BENCH:

DORAISWAMY RAJU & H.K. SEMA.

JUDGMENT:

J U D G M E N T

WITH

CRIMINAL APPEAL NO. 271/1996

Sema, J.

These two appeals arise out of a common judgment and order of the

High Court dated 29.11.1994 passed in Criminal Appeal No. 626 of 1994

and R.T.No.2 of 1994 and are being disposed of by this common judgment.

Criminal Appeal No. 270 is preferred by the defacto complainant (PW-1),

the brother of the deceased. Criminal Appeal No. 271 is preferred by the

State of Kerala.

The facts of this case as unfolded by the prosecution are brief but

horrendous, which shock human conscience. The marriage of the deceased -

Sujatha with accused Babu was solemnised on 2.2.1993. Thereafter, the

couple stayed together in the parental house of the bridegroom. The

deceased seems to have elicited information from PW-3 Lekha, wife of the

younger brother of the accused, that the accused had a pre-marital affair with

one Omana @ Vavachi (PW-2). The deceased could not tolerate the

information so elicited about the extra marital connection of her husband

with Omana. She became repulsive and adopted an unresponsive attitude

towards the overture approach made by the accused and she succeeded by

keeping him at bay on the bridal night. It appears that the deceased had

adopted the same stiff attitude towards the accused on the second night also

i.e. 3.2.1993, which had enraged the accused. On being unable to sustain the

lust for sex, persistently prevented by the deceased, the accused decided to

end the life of the deceased, strangulated her and killed her. Thereafter, the

body of the deceased was lifted and taken to an unused well, situated about

17 metres away from the house of the accused and dumped. It is also

alleged that at about 2.30 a.m., the accused had woken up the inmates of the

house and disclosed to them that his wife was missing and in a hectic search

that followed, the body of the deceased was spotted inside the well and was

brought out from the well. First Information Report was lodged by PW-1,

the brother of the deceased and it was registered as a case of unnatural death.

After the receipt of result of the autopsy, it was confirmed that Sujatha died

due to strangulation. The FIR was, accordingly, converted into a case of

murder.

In this case the prosecution has examined as many as 15 witnesses.

None of the DWs were examined on behalf of the accused. PW-2 Omana is

a lady who was alleged to have had extra marital relation with the accused

was declared hostile. PW-3, Lekha is the wife of the accused's elder

brother. PW-4 Sasidharan is the husband of PW-3 and elder brother of the

accused who was declared hostile. PW-5 Rathesh Kumar was also declared

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hostile. PW-6 Bahulayan is the father of the accused.

After the trial, the learned Trial Judge, held the accused guilty under

Section 302 IPC and imposed the extreme penalty of death sentence.

On appeal, the High Court set-aside the conviction and sentence and

acquitted him. The High Court has also dismissed R.T.No.2 of 1994. Both

the Courts below concurrently held that the death is homicidal and not

suicidal. This question, therefore, need not detain us any longer.

Parties are heard at length. Mr. John Mathew learned counsel for the

appellant â\200\223 State in Crl. A. No. 271 of 1996 and Mr. EMS Anam, learned

counsel for the appellant in Crl. A. No. 270 of 1996, contended that the

circumstantial evidence well proved unerringly point to the guilt of the

accused beyond reasonable doubt. He further contended that the High Court

was in error in holding that the testimony of PW-6 was a mistake. Per

contra Mr. MP Vinod, learned counsel for the respondents contended that

circumstantial evidence do not led to the guilt of the accused. It is his

further contention that there is no direct evidence and the acquittal recorded

by the High Court may not be disturbed.

The case of the prosecution entirely rests on circumstantial evidence.

The High Court has considered the following circumstances appearing

against the accused:-

(1) Sujatha died of murder and the dead body was in a well

situated about 17 metres away from the house.

(2) The appellant and deceased were closeted in a bedroom

at about 8.30 p.m. on the fateful day.

(3) A lungi was recovered from the appellant's room as

produced by him.

(4) The appellant's father when examined as P.W.6 said that

the appellant had told him at 2.30 a.m. that the deceased

was dead.

(5) When the appellant was questioned by the Sessions

Judge under Section 313 Cr.P.C. he had stated that there

was no attempt on his part to have sexual relationship

with Sujatha, but conceded later by saying that he had

sexual inter-course with her.

Dr.Sujathan was examined as P.W.13. She stated that she had

conducted autopsy and found the following ante-mortem injuries:-

(i) Pressure abrasion, 11 cm. long, horizontal, on the front and right

side of neck, inner end in the midline, over thyroid cartilage, 9

cm. behind the chin (1.5 cm broad), and outer end 7 cm. below

and 3 cm behind the right ear (1.8 cm. broad).

(ii) Pressure abrasion, 9.5 cm. long, oblique, on the front and left

side of neck, inner lower end being 1.5 cm below thyroid

cartilage and in the midline (1.4 cm. broad) and outer upper end

being 6 cm. below and 2.5 cm. behind the left ear (1.5 cm broad)

(iii) Linear abrasions, 1.3 cm. and 0.8 cm. oblique, parallel to each

other 0.5 cm. apart, on the front of middle of neck, 0.5 cm.

below injury No.2.

PW.13 also found that hymen showed a tear in the 5'o clock position whose

margins were reddish. Doctor opined that the deceased had died of

constriction force around the neck. Doctor further opined that injury nos. 1

and 2 could be caused by applying force on the neck by tying a Kayali

(Lungi) on the neck. In the opinion of doctor, injury nos. 1 and 2 are

sufficient in the ordinary course of nature to cause the death. Doctor further

opined that injury No.3 is possible to be caused by that portion coming into

contact with the top of a nail.

PW-13 further stated that there were signs of attempted sexual

intercourse but as to whether there was sexual intercourse can be ascertained

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only by examination of the vaginal swab and smear. She has further stated

that vaginal swab and smear had been collected and preserved at the time of

autopsy, and the same had been forwarded to the Chief Chemical

Examiner's Laboratory at Thiruvanthapuram for chemical examination. She

also stated that she had received the report of chemical examination marked

Exhibit P-15 and the report showed the vaginal smear and swab when

examined did not show the presence of semen and spermatozoa. In cross-

examination PW-13 denied the suggestion that if the body of the deceased is

immersed in water for a long time viz. for a few hours and even if the body

has been subjected to movements, it will not wash away the semen and

spermatozoa.

The High Court was of the view that since in the opinion of doctor the

hymen showed a tear in the 5'o clock position whose margins were reddish

and therefore the couple had sexual consummation either on the first night or

on the succeeding night and the allegation against the accused that he

became revengeful on account of his failure to accomplish copulation with

his wife is bound to shatter. The High Court seems to have been carried

away by the fact that there was a tear of hymen in the 5'o clock position

shows the couple had sexual consummation. This finding, in our view, is

not based on totality of appreciation of evidence of PW-13. As noticed

above, PW-13 had clearly stated that there were signs of an attempted sexual

intercourse but as to whether there was sexual intercourse could be

ascertained only by examination of the vaginal swab and smear, which had

been preserved. PW-13 also stated that the report of chemical examination

Exhibit P-15 showed that vaginal smear and swap did not show the presence

of semen and spermatozoa. Absence of semen and spermatozoa in the

vaginal smear and swap is indicative of the absence of consummation.

Consummation has been defined in Black's Law Dictionary Sixth Edition, as

"the completion of a thing; the completion of a marriage by cohabitation (i.e.

sexual intercourse) between spouses."

In the facts of the present case, the sign of attempted sexual

intercourse means that the accused was making an attempt to have sexual

intercourse with the deceased and the deceased was resisting the attempt.

The tearing of hymen in the 5'0 clock position could have occurred in the

process of resistance. The report of chemical examination that vaginal

smear and swab did not show the presence of semen and spermatozoa

confirmed the absence of complete sexual intercourse.

It is in the evidence of PW-3 that Sujatha (deceased) was a girl of

good character. It is a matter of common knowledge that a girl of self-

respect would refuse to cohabit even with her own husband, if it is found

that her husband was having pre-marital sex with another woman. There are

varied reasons for this. Apart from morality, she would run the risk of

contacting sexually communicable disease and she would resist cohabiting

even with her own husband. It is but quite natural, therefore, that on the

bridal night she had succeeded in refusing to cohabit with her husband and

she was determined to do the same thing on the next night, which would

have enraged the husband being not satisfied with lust for sex, decided to do

away with her finally after making an aborted attempt. Having regard to

the background and circumstances of this case as well as the very wavering

stand of the accused as to whether he did not have sexual inter-course with

the deceased prior to her death and medical opinion as to the absence of

semen and spermatozoa and the fact that if it really was, it would not have

got washed in the circumstances found in this case, there is every possibility

that the accused was pressing the throat of the deceased and at the same time

was trying to have sexual intercourse with her and in the process the tearing

of hymen in the 5'o clock position could have occurred but without

consummation.

The three injuries on the neck of the accused found by the doctor as

noticed above, there is every possibility that the accused applied pressure on

the neck of the deceased in an excess of sadism to frighten or torment the

deceased or to overcome resistance, can not be ruled out.

The second important circumstantial evidence against the accused is

that the accused and the deceased were last seen together. To put it tersely

both of them slept together by retiring to the room that night. Last seen

together in legal parlance ordinarily refers to the last seen together in the

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street, at a public place, or at any place frequented by the public. But here,

the last seen together is much more than that. The last seen together here is

sleeping together inside the bolted room. It is in the evidence of PW-3 and

PW-6 that they had dined together and the accused and the deceased were

closeted in a room at about 8.30 p.m. Therefore, on the fateful day the

accused and the deceased were closeted in a bedroom at about 8.30 p.m. is

undisputed and it is for the accused alone to explain as to what happened and

how his wife died and that too on account of strangulation.

The third circumstantial evidence against the accused is the recovery

of lungi produced by the accused. The High Court was of the view that

mere recovery of lungi from the bedroom of the accused is of no

consequence, as lungi is commonly worn in domestic life and it is not a

strange commodity in a bedroom of any person. The High Court seems to

have failed to notice that in the evidence of PW-3 she had stated that her

husband saw the lungi in the well on the eastern side of the house and they

saw Sujatha was lying dead in that. It is also in the evidence of PW-11, KR

Gopikuttan Nair, that he took into custody the underskirt, one pink blouse,

white brassieres worn by the dead body, the lungi which was lying in the

well in which the body was lying and these material objects were taken and

marked as M.Os 2 to 5. This would show that there was more than one

lungi in the house, one was thrown with the body and the other worn by the

accused, which was recovered from the house.

The fourth circumstance, even from the view of the High Court, if

found believable, certainly a decisive point to the guilt of the accused, is the

statement of PW-6, the father of the accused. PW-6 in his statement under

Sections 161 and 164 Cr.P.C. had stated that his son, the accused had told

him at about 2.30 a.m. that the deceased Sujatha was missing from the room.

However, in his examination in Court, PW-6 stated that the accused told him

at 2.30 a.m. that Sujatha had died. It could not have been a slip of tongue

since at two places and in two different contexts he has stated about the

accused having told that Sujatha had died. The High Court was of the view

that since PW-6 in his statement under Sections 161 and 164 Cr.P.C. had

stated that the accused had told him at about 2.30 a.m. that his wife was not

seen in the room, there is no reason why PW-6 would have said in Court that

the accused had said that Sujatha had died. There is no justification or scope

for any assumption, by any one. The High Court was of the view that this

was a mistake committed by PW-6. In our opinion, the view taken by the

High Court was clearly erroneous. As already noticed, in his examination

under Sections 161 and 164 Cr.P.C. he had stated that the accused told him

at about 2.30 a.m. that Sujatha was missing from inside the room. In his

examination in the Court he, however, stated that at about 2.30 a.m. the

accused informed him about the death of Sujatha. PW-6 is no other than the

father of the accused. It is but quite natural that he would try to save his son

from punishment. It must be grasped that the truthness of witness is always

tested in the court, because his statement is subjected to scrutiny. Truthness

of witness is elicited from the cross-examination. This witness was

declared hostile and was subjected to cross-examination by the Public

Prosecutor as well as by the accused. In his cross examination the witness

stated as under: -

"I came to know about the daughter-in-law at 2 O'clock in the

night. That information was given by the Accused himself. It

was after telling me about the death of Sujatha that the Accused

himself banged on the room of my elder son Sasidharan and his

wife (PW4 and PW3) woke them and told them. At the time

when the Accused told me about the death of Sujatha, PW4 and

PW3 had not woken up."

It is difficult to accept that PW-6 has committed a mistake in saying

so. We are clearly of the view that the statement of PW-6 in the Court that

the accused had told him at about 2.30 a.m. that Sujatha had died is the true

statement of witness and not a mistake. Having regard to the background and

circumstances of this case as noticed above, the statement of PW-6 is too

significant to be ignored. We have already observed that being the father of

the accused he would try to save the accused in his statement under Sections

161 and 164 Cr.P.C. but during the cross examination truth has been elicited

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from the mouth of PW-6.

Now the question remains to be considered is who is responsible. As

already noticed, the accused and the deceased were closeted inside the room.

There is no evidence of intruder. In such a situation, the circumstances

leading to the death of the deceased are shifted to the accused. It is he who

knows in what manner and in what circumstances the deceased has met her

end and as to how the body with strangulation marks found its way into the

nearby well. All the aforesaid circumstances, taken together cumulatively

lead and unerringly point only to the guilt of the accused.

In the result, the order of the High Court acquitting the accused is

hereby set-aside.

The question that remains for consideration is with regard to sentence.

As already noticed, the learned Trial Court awarded the maximum

punishment of death sentence for an offence under Section 302 IPC. While

awarding capital punishment, the learned trial judge, was of the view that the

deceased, aged about 21 years, was married to the accused reposing full faith

that her life would be secured in his hands and was expecting a matrimonial

home with full hopes to have a happy conjugal married life, has been

ruthlessly nipped in the bud of her life, falls within the ambit of rarest of rare

cases.

This Court in Bachan Singh VS. State of Punjab, (1980) 2 SCC 684

and Machhi Singh Vs. State of Punjab (1983) 3 SCC 470, formulated the

following two questions that may be asked and answered as a test to

determine the 'rarest of rare' case in which death sentence can be inflicted:

(a) Is there something uncommon about the crime which

renders sentence of imprisonment for life inadequate and

calls for a death sentence?

(b) Are the circumstances of the crime such that there is no

alternative but to impose death sentence even after

according maximum weightage to the mitigating

circumstances, which speak in favour of the offender?

This Court also formulated the following guidelines, which would have to

be applied to the facts of each individual case where the question of imposition

of death sentence arises:

(i) The extreme penalty of death need not be inflicted except in

gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the

'offender' also require to be taken into consideration along with

the circumstances of the 'crime'.

(iii) Life imprisonment is the rule and death sentence is an

exception. Death sentence must be imposed only when life

imprisonment appears to be an altogether inadequate

punishment having regard to the relevant circumstances of the

crime, and provided, and only provided, the option to impose

sentence of imprisonment for life cannot be conscientiously

exercised having regard to the nature and circumstances of the

crime and all the relevant circumstances.

(iv) A balance-sheet of aggravating and mitigating circumstances

has to be drawn up and in doing so the mitigating circumstances

has to be accorded full weightage and a just balance has to be

struck between the aggravating and the mitigating

circumstances before the option is exercised.

In the present case, in our view, though the murder is gruesome, but

taking the facts and circumstances into consideration, the crime committed

by the accused does not satisfy the above tests and it is difficult to say that it

falls within the ambit of the 'rarest of rare' cases. In our view, therefore, the

sentence of life imprisonment for an offence under Section 302 would be

adequate. The accused is, accordingly, sentenced to rigorous imprisonment

for life under Section 302 IPC. With this modification in sentence the

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appeals are allowed.

The accused is on bail. His bail bond stands cancelled. He is

directed to be taken into custody forthwith to serve out the remaining part of

the sentence.