Ramakrishna Pillai, J. This death reference and the criminal appeal arise out of the judgment of the Session's Court, Palakkad in S.C No.114 of 2009 in which, the appellant herein was tried, found guilty, convicted and sentenced to undergo death sentence (he was directed to be hanged by neck until he dies) for offence punishable under Section 302 IPC, to undergo rigorous imprisonment for ten years and to pay a fine of ₹1,000/- and in default of payment of fine, to undergo rigorous imprisonment for one month for offence punishable under Sections 376 IPC and also to undergo rigorous imprisonment for seven years and to pay a fine of ₹1,000/- and in default of payment of fine, to undergo rigorous imprisonment for one month for offence punishable under Section 201 IPC. The substantive sentences of imprisonment were directed to run concurrently. Though the appellant was tried for the offence punishable under Section 297 IPC also, he was found not guilty under the aforesaid sections.
2. The allegation against the appellant is that, he intentionally caused the death of his wife Lissy and daughters by names Amalu, aged 12 years, Amalya, aged 9 years, Amanya, aged 3 years and son Amal, aged 10 years in succession on different dates from 8.7.2008. According to the prosecution, Lissy was murdered at 11.30 p.m. on 8.7.2008, Amanya and Amal were murdered at 4 a.m. on 13.07.2008 and Amalu and Amalya were murdered at 4 a.m on 23.7.2008. The prosecution further alleges that the appellant had committed rape on Amalu at about 00.30 hours on 23.7.2008 i.e., before murder. The scene of occurrence according to the prosecution is the bedroom of House No.1/81 of Amayur, within the local limits of Pattambi Grama Panchayat in Palakkad District. The appellant and victims were residing in that house. The body of Lissy was concealed in a septic tank on the northern side of the house and the bodies of Amal and Amanya were seen discarded in a property nearby. All the three dead bodies were in a decomposed stage. The bodies of other two children Amalu and Amalya were seen in the bedroom of the house.
3. The prosecution case is unfolded through the oral testimonies of PWs.1 to 44 and Exts.P1 to P72 and MOs.1 to 36 as follows.
The appellant, who was hailing from Pala in Kottayam District, was employed by PW1 for agricultural work in his property on a monthly salary of ₹7,000/-. In connection with the aforesaid employment, the appellant was staying in a house taken on rent from PW6, who is a close relative of PW1. PW2 is the wife of PW1. Amalu and Amalya were studying in St. Josephs U. P. School at Vellilapalli, Ramapuram at Pala and they were staying in Sneha Bhavan, run for helping orphans and other financially disabled persons.
At the relevant time, the appellant, his wife Lissy and the other two children, Amanya and Amal were residing in the aforesaid rented house. It is the case of the prosecution that the appellant developed illicit intimacy with PW24, a woman labourer, working with him. Lissy was found missing from 9.7.2008 onwards. On enquiry by PW1 and others, appellant told them that she had gone to Pala. On 11.7.2008, he took Amal and Amanya from the house making others to believe that he would come back with his wife and children. However, till 13.7.2008, none of them were seen by PWs.1 and 2. When the appellant was asked about that, he told that they would come along with Anto (PW10), who is the uncle of Lissy, on 17.7.2008. However, they were not seen till 20.7.2008.
On 20.7.2008 the appellant left for Kottayam informing PW1 and others that he would come with his wife and children in the evening. PW2, the wife of PW1, made enquiries with PW1 about the appellant, his wife and children. She noticed that the house was locked from outside on 21.7.2008 and 22.7.2008.
However, on 23.7.2008, she noticed that the house was locked from inside. Believing that somebody would be there in the house, she knocked at the door. However, there was no response at all. Therefore, she informed the matter to PW1. He also came and knocked at the door and called the appellant. As there was no response, he removed the tiles of the roof of the front room and entered the said room. However, the door from that room to the corridor was seen locked from corridor. Therefore, he could not enter the corridor or the other rooms. He came out and took a ladder from the neighbouring house. He informed the matter to PW6 and his brother. After removing the tiles of the corridor, PW1 opened the door and took his brother and PW6 inside. Thus all the three entered a bedroom where they could see the bodies of Amalu and Amalya lying on the floor facing downwards. Finding them dead, PW1 informed the Pattambi Police. It was at 9.30 a.m on the same day.
After recording Ext.P1 First Information Statement of PW1, PW43-the then Additional Sub Inspector of Police, Pattambi Police Station, registered the crime under Ext.P53 First Information Report. PW40, the then Circle Inspector of Police, Pattambi, prepared Ext.P7 scene mahazar in the presence of PW5, a witness from the locality. Inquest over the dead bodies of Amalya and Amalu were conducted and Exts.P4 and P5 reports were prepared in the presence of PW4, another witness from the locality. Under Ext.P4 inquest report, he recovered MOs.25, 27, 28, 29 and 30 from the body of Amalya and under Ext.P5, he recovered MOs.14 and 16 from the body of Amalu. The bodies were sent for postmortem examination to the Medical College, Thrissur. PW31 conducted autopsy on the body of Amalu and issued Ext.P32 report. PW32 conducted autopsy on the body of Amalya and prepared Ext.P35 report. The Police could not trace out the whereabouts of Lissy and other two children. However, it was revealed that they did not reach the house of the relatives of PW10.
On 25.7.2008, foul smell emanated from the septic tank attached to the house where the appellant and the victims were residing. While opening the septic tank, the body of Lissy was found in a decomposed stage. Enquiry made by the Police revealed that the bodies of Amal and Amanya were discarded in an adjacent property. These bodies were also in a decomposed stage. Inquest over the body of Lissy was conducted and Ext.P12 report was prepared in the presence of PW11, who is a witness from the locality. MOs.1 and 31 to 34 were recovered from the body of Lissy under inquest report. As directed by PW37, the then Sub Inspector of Chalisseri Police Station, conducted inquest over the dead body of Amal and prepared Ext.P13 report in the presence of PW12 who is a witness. Under Ext.P13, MOs.22, 23 and 24 were recovered. As directed by PW40, PW38, the then Sub Inspector of Thrithala Police Station, conducted the inquest over the dead body of Amanya on 25.7.2008 and prepared Ext.P3 report to which PW4 is a witness. Under Ext.P3 inquest report, MOs.6 to 13 and 26 were recovered from the body. The postmortem of all these three bodies were conducted at the spot by PW33, the then District Police Surgeon, Palakkad.
Ext.P37 is the postmortem certificate of Amanya. PW33, who collected viscera and other parts from the body of Amanya, sent the same for chemical analysis and obtained Ext.P37 report. Thereafter he issued Ext.P39 final postmortem certificate dated 4.5.2009. Ext.P40 is the postmortem certificate relating to the body of Amal and Ext.P44 is the report of the Chemical Analyst who subjected the viscera and other parts of the body of Amal for chemical examination. After obtaining the report, Ext.P42 final postmortem certificate of Amal was issued on 4.5.2009. After the autopsy of the dead body of Lissy Ext.P43 certificate was issued and after obtaining Ext.P44 chemical analysis report on examination of viscera and other parts from the body of Lissy, Ext.P45 final postmortem certificate dated 4.5.2009 was issued.
Ext.P2 scene mahazar was prepared by PW40 on 25.7.2008. Under that mahazar, MOs.35 and 36 were recovered. PW22, who was conducting a petty shop at Gandhi Nagar near Medical College Hospital, who happened to see the appellant in the bus stand on 27.7.2008, informed that to the Gandhi Nagar Police Station. The appellant was taken into custody on getting information from the Gandhi Nagar Police Station. PW40 arrested the appellant on the same day. He was produced before the Magistrate concerned and after getting police custody, he was questioned. On the basis of the information supplied by the appellant, certain incriminating materials were recovered.
4. The statements of witnesses were got recorded under Section 164 Cr.P.C. Thereafter, PW42, the Deputy Superintendent of Police, Shornur, undertook the investigation. It was PW44, who submitted the final report against the appellant under Sections 302, 376, 297 and 201 of IPC before the Judicial First Class Magistrate Court, Pattambi on 23.10.2008 after investigation. The learned Magistrate committed the case for trial to the Court of Sessions, Palakkad. The appellant, who was in judicial custody, was defended by State Brief, as he had no lawyer of his choice to defend his case.
5. After hearing the prosecution and the appellant, charge was framed by the trial court to which, the appellant pleaded not guilty. Thereafter the prosecution has chosen to examine PWs.1 to 44 and to mark Exts.P1 to P72 and identified MOs.1 to 36. After completion of the prosecution evidence, the appellant was questioned under Section 313(1)(b) Cr.P.C where he denied the incriminating circumstances and reiterated the plea of innocence. As the trial court felt that the appellant was not entitled to an acquittal under Section 232 of Cr.P.C he was called upon to enter on his defence. However, he did not adduce any defence evidence. The trial court after appreciating the evidence on record found the appellant guilty of offence, convicted him and imposed the sentence as stated in the opening paragraph by the impugned judgment.
6. As the death sentence was imposed subject to the confirmation of this Court, the proceedings of the case was forwarded to this Court resulting in the D.S.R. The D.S.R and the criminal appeal filed by the accused were taken up for hearing.
7. We heard Mr. T. K. Sandeep the learned counsel for the appellant, Sri.Tom Jose Padinjarekara, the learned Additional Director General of prosecution and the additional State Public Prosecutor quite in extenso.
8. According to the prosecution, the appellant caused the death of his wife Lissy by strangulation while she was in the bedroom during the night of 8.7.2008. It is the further case of the prosecution that the appellant caused the death of Amanya and Amal at about 4 a.m on 13.7.2008 and the death of Amalu and Amalya at 4 a.m on 23.7.2008 by strangulation. The further case is that the appellant at about 3 a.m. on 23.7.2008 committed rape on his daughter Amalu i.e. before causing death. According to the prosecution, the appellant has caused the death of all the five with the intention of causing death. There is yet another allegation that the appellant had shown dis- respect to the dead body of Amalu and he caused disappearance of evidence of murder by concealing the bodies of Lissy, Amal and Amanya.
9. To prove the case against the appellant, the prosecution relies on circumstantial evidence. It is well settled by the decisions of this Court as well as the Apex Court that circumstantial evidence can form the basis of conviction only if it satisfies three tests. Firstly the circumstances should be cogently and firmly established. Secondly, the circumstances should form a chain so complete, unerringly pointing to the guilt of the accused. Thirdly, the circumstances relied on by the prosecution should lead to an irresistible inference of guilt of the accused and these circumstances should be wholly inconsistent with his/her innocence. Therefore, our endeavour in this case is to consider whether all these tests have been satisfied.
10. There is no dispute with regard to the death of Lissy and the first three children. The appellant had disputed the death of the fourth child Amanya. The dead bodies of Amalu and Amalya were first seen and identified by PW1. Subsequently, these bodies were identified by PW10 also, who is a close relative of Lissy. The body of Amalya was subjected to autopsy by PW32, the then Professor of Forensic Medicine, Medical College Hospital, Thrissur who issued Ext.P35 certificate. PW32 has opined that Injury No.3 in Ext.P35 certificate is fatal and sufficient in the ordinary course of nature to cause death which would be caused by compression of neck, which according to PW32 could be caused by using a ligature. Injury No.3 is described as under:
“Four contused abrasions 0.5x0.1 cm each curved with concavity downwards on left side of front of neck (over an area 2x2 cm), 0.5 cm away from midline at the level of thyroid cartilage and 4 cm blow jaw margin. Inner 3 were placed one below other 0.5 cm apart. The fourth one was placed 0.3 cm to the left of the middle one. Neck was dissected in a bloodless field. There were blood infiltration over left lobe of thyroid gland (0.5x0.5x0.2 cm) and on the muscles below it (0.5x0.5.0.2cm). The cartilages, hyoid bone and vertebrae of the neck were intact. There were plenty of spotted bleeding areas in mucosa of larynx and vocal cords.”
11. PW31, who is the Associate Professor and Deputy Police Surgeon, Medical College Hospital, Thrissur, who conducted autopsy on Amalu and issued Ext.P32 certificate, opined that Injuries (3) and (4) found in the body of Amalu are sufficient to cause death in the ordinary course. Injuries 3 and 4 are described as under:
“Nail mark with infiltration of blood to the surrounding tissue 1.5x0.5 cm on the left side of upper part of neck 1 cm outer to midline and 1.5 cm below lower jaw.
Abrasion 3x1.2cm on the front of left side of neck 0.5 cm outer to midline 5.4 cm above the left collarbone.”
12. PW31 opined that injury no.4 could be caused with a ligature like MO13. The viscera and blood from the body of Amalu as well as vaginal smear and swab taken from the body were subjected to chemical analysis. Ext.P34 chemical analysis report shows that semen and spermatozoa were detected in the vaginal swab. PW31 further opined that injuries 1 and 2 in Ext.P32 certificate would reveal that Amalu was subjected to sexual assault. The following were the injuries:
1. Contusion 1.5x1cm on the under aspect of right labia minora of vagina.
2. Lacerated wound 1x0.5x0.3 cm on the joining part of two labia minora of vagina. Hymen had old healed tears of 5 0' clock position, 6 0' clock position and 8 0' clock position.”
13. Postmortem certificates of the aforesaid two children coupled with the evidence of the Doctors who conducted the autopsy would reveal that the death of these children were not due to any poison. We say this because, there was an attempt on the part of the learned counsel for the appellant before us that there was reason to believe that the victims have consumed poison which caused their death. The medical evidence now before us would conclusively prove that the death of the aforesaid two children was due to the application of external force or pressure applied on their neck.
14. Coming to the allegation of sexual assault against Amalu, we notice that MO14 skirt and MO16 shimmy contained human spermatozoa as per Ext.P71 Chemical Examiner's report. Now the question is whether the biological fluid (semen) found in the vaginal swab as well as the skirt and underskirt of Amalu was that of the appellant. MOs.14 and 16 which were remnants of vaginal swab and smear obtained from chemical analysis laboratory, were forwarded to the Centre for D.N.A Finger Printing and Diagnostics, Hyderabad, along with long bones taken from the body of Lissy, Amal and Amanya and the blood samples of the father and mother of Lissy as well as the blood samples of the appellant. Ext.P70 is the copy of the forwarding note submitted by the Deputy Superintendent of Police, Shornur to the Judicial First Class Magistrate for forwarding the articles mentioned in Ext.P72 to the aforesaid institute.
15. PW14, who is the father of Lissy, gave evidence that he along with his wife had gone to the Laboratory at Hyderabad. As per Ext.P72 report, they have identified the bones of deceased Amal and Lissy. It was found that the biological fluid (semen) present in the vaginal swab of deceased Amalu and the cloth pieces which are marked as MOs.14 and 16 correspond to the blood sample of the appellant. It is a strong circumstance which stares against the appellant regarding the allegation of rape of the deceased Amalu.
16. We have also examined whether there is any further piece of evidence which would substantiate this case. PW9, who is the Headmaster of St. Joseph U.P. School, Vellilapilli, gave evidence that on 22.7.2008 at about 3 p.m, the appellant came to the school and wanted to take Amalu and Amalya who were studying there to his house under the pretext that they were being taken for the funeral of the mother of the appellant. PW9, he told the appellant that he had no objection in taking the children, but they could be taken only with the permission of Sneha Bhavan authorities. PW9 would further state that at about 3 p.m on the same day he saw the appellant leaving the Sneha Bhavan with Amalu and Amalya. We see no reason to distrust the testimony of PW9, who is an uninterested witness. The testimony of this witness would reveal that the children were taken by the appellant from Sneha Bhavan on 22.7.2008. It was on the next day, the dead body of Amalu and Amalya were seen by PW1 and others in the house where the appellant was residing. This is yet another circumstance to connect the appellant with the death of Amalu and Amalya.
17. Now, we will examine the cause of death of Lissy and two children by name Amal and Amanya. According to the prosecution, the death of Lissy was on 8.7.2008 and the death of Amal and Amanya were during the early hours of 13.7.2008. As already stated, the dead bodies of Lissy, Amal and Amanya were recovered only on 25.7.2008. The body of Lissy was concealed in a septic tank and it was in a decomposed stage. The body of Amal and Amanya were seen in a nearby property and they were also in a decomposed stage. The dead body of Lissy was identified on the basis of facial appearance as well as the dress found on the body by PW1. It was PW3, who conducted the autopsy on the dead body of Lissy. PW33 conducted the autopsy on the body of Amal and Amanya. Ext.P43 is the certificate relating to autopsy of Lissy, Ext.P37 is the postmortem certificate in relation to the dead body of Amanya and Ext.P40 is the postmortem certificate in relation to the dead body of Amal. No poison was detected in the viscera taken from any of these dead bodies. The Doctor opined that the injury on the neck of these three bodies were sufficient to cause death on the ordinary course of nature and all of them died due to the constriction force applied to the neck.
18. The material question now that has to be answered is how far the prosecution has succeeded in establishing that the appellant had caused the death of his wife and four children. The incident took place in the rented house occupied by the appellant and his family. This house belonged to the Tharwad of PW6 and was taken on rent by the appellant in connection with employment in the property of PW1. It is a two storeyed building with a tiled roof. A tarred road by name Amayur-Pattambi road is lying at a distance of 100 metres towards east from the said house. The house faces towards east and it has a front room called portico with two doors. One of the doors is on the southern wall and other door is on the western wall. The scene mahazar would reveal that the door on the south can be locked only from outside. On the northern side of the front room, there is a corridor which also has a door on the southern side opening towards the front room. This door can only be locked from inside. Further, north to the corridor there is a kitchen and work area. Just on the western side of the kitchen, there is a room used for keeping fire woods. On the north-western side of the kitchen, there is a bathroom and a latrine. Further, north to this, lies the septic tank.
19. There are three rooms on the western side of the corridor having opening to the corridor. South to these rooms, there is a stair case leading to the first floor. From the tarred road on the eastern side, a mud road leads towards west upto a distance of 55 metres through which vehicles could be taken. From there, there is a footpath further leading towards west and ending at the house where the appellant was residing. This footpath is having a length of 45 metres. The house of PW1 is 75 metres south to the house occupied by the appellant. The house of PWs.6 and 7 are just on the eastern side of the house of PW1. The house of the brother of PW6 is on the eastern side of the house of PW6. This is the picture of scene of occurrence which we could gather from the scene mahazar and the testimonies of the witnesses. The dead bodies of Amanya and Amal were seen in the property of one Janaki Amma which is about 125 metres away on the north-west.
20. The employment of the appellant by PW1 is spoken to by PWs.1, 2 and 6. PW1 is having 11 acres of land. Out of this, 7 acres is adjacent to his house and balance 4 acres is at Kizhakkekara, which is about 2 kilometres away from his residence. Lissy was last seen by PWs.1 and 2 on 8.7.2008. On that day, PWs.1 and 2 had seen her working in the property of PW1 along with the appellant. It is stated by PWs.1 and 2 that the appellant and his wife returned to their house on the aforesaid day after the work. Thereafter they have not seen Lissy. These witnesses would further add that Amal and Amanya were not seen after 11.7.2008. The appellant was alone in the house and the house was seen locked from outside on 21.7.2008 and 22.7.2008. This fact was spoken to by PW2. PW2 noticed on 23.7.2008 that the front room was locked from inside and even though she knocked at the door, there was no response. Thereafter she informed her husband PW1. It was PW1 who entered the house after removing the tiles of the front door. He found the bodies of Amalu and Amalya in the bed room. It is further proved through the testimony of PW1 that the bodies of Lissy, Amal and Amanya were traced out on 25.7.2008.
21. One of the circumstances relied on by the prosecution is the motive of the appellant to commit the crime. Where there is direct evidence, motive generally becomes irrelevant. However, if motive is pointed out as one of the links of the chain leading to the guilt of the accused, the prosecution is duty bound to establish the same. It is relevant to note that motive being a mental element, the same can be established only from the attending circumstances. The motive alleged by the prosecution in this case is that the appellant had developed illicit intimacy with PW24, who was his co-worker and he wanted to have a life with her. For that he wanted to annihilate the whole family; so states the prosecution. PW13, who is another worker under PW1 has stated that PW24 was also working for PW1. He had occasion to see the appellant and PW24 moving closely. PW13 deposed that the appellant had even told him that he would like to marry PW24. PW1 would depose that he saw the appellant talking to PW24 and he had even warned him. The learned counsel for the appellant would submit that it is usual among co-workers to move freely without any inhibition and the same cannot be branded as an act of illicit relationship.
22. Here, we have the testimony of PW24, who herself would say that she and the appellant were moving very close and they had telephonic conversations frequently. She was residing about 2 kilometres away from the place of occurrence. Her husband is a Security Personnel. During most of the days he used to stay away. She has a son aged 13 years. What could be discerned from the testimony of PW24 is that the appellant was very affectionate towards her and she also liked him. MO20 is the mobile phone kept by her. She had service connection with Tata Service, her number being 9288173334. It has come out in evidence that the appellant used to make telephone calls to her. MO21 mobile phone was also owned by her. She would depose that on 14.7.2008, the appellant gave a Sim Card of Idea mobile to her which she had used it in MO21 mobile phone. Ext.P26 is the call details of the Tata mobile phone owned by PW24 for the period from 1.2.2008 to 31.7.2008 which contain the details of mobile phone numbers of the appellant. His call details were proved by PW26.
23. Exts.P27 and P28 are the call details of mobile phone used by the appellant. These call details would indicate that there were frequent telephone calls between PW24 and the appellant which shows the close intimacy of appellant with PW24. Although it was argued by the learned counsel for the appellant that those connections and call details in the absence of applications for telephone connections and identification cards by itself will not prove that those telephone calls were made by the appellant, we are of the view that the evidence given by PW27 and PW28 coupled with Exts.P26 to P28 are sufficient to hold that there were frequent contacts between PW24 and the appellant, as alleged by the prosecution. The oral testimony of PW24 further reveals that they had sexual relationship also. PW24 has admitted that when her husband was away, they used to meet during night time at her house. She had given a description of the dates of their meeting and the last meeting was on 19.7.2008. On that day also they performed the act of sex. She would further add that on 8.7.2008, she gave a missed call to the appellant and PW24. At 11.53 p.m on the same day she got a call from the appellant. During that night also the appellant had sex with her. It is crucial to note that the allegation of prosecution is that Lissy was murdered by the appellant on 8.7.2008. The evidence adduced by the prosecution would reveal that on 8.7.2008 Lissy contacted PW24 over telephone and she abused her for giving a missed call to her husband. This would take us to the conclusion that the relationship between the appellant and his wife Lissy ran into rough weather on account of the illicit relationship between the appellant and PW24.
24. PW24 has further stated that the appellant has an allegation that the younger daughter Amanya was not born to him. The appellant told her that on account of this, he abstained from any bodily relationship with his wife for five years preceding to the incident. This was pointed out as the reason to develop the illicit intimacy with PW24. This is a strong circumstance relied on by the prosecution to show that the appellant had the real motive to finish off Lissy and the four children.
25. The next circumstance relied on by the prosecution is the last seen together theory. The learned Additional Director General of Prosecution would submit that this is a strong circumstance to show that the appellant was the real perpetrator of the crime. While dealing with the alleged rape on Amalu we have found that it was the appellant who took the Amalu and Amalya from Sneha Bhavan on 22.7.2008 as revealed through the testimony of PW9, who is the Headmaster of St. Joseph U.P School, Vellilapilli. His evidence shows that at about 3 p.m on 22.7.2009 the appellant took Amalu and Amalya from Sneha Bhavan under the pretext of taking them for his mother's funeral. The fact that the appellant was at Kottayam on 20.7.2008 and on 21.7.2008 is proved through the testimonies of PWs.17 and 18. PW17 is the Manager of Bino Lodge which is very close to Kottayam Railway Station. Ext.P17 is the register kept in the lodge. Ext.P17 reveals that on 20.7.2008, the appellant took a room in that lodge. PW17 saw the appellant on 20.7.2008 also in that lodge. His testimony is corroborated by PW18, who is a room boy. He was a witness to Ext.P18 mahazar for the recovery of Ext.P17 register. The aforesaid evidence is sufficient to conclude that the appellant went to Kottayam on 20.7.2008 and he went to Sneha Bhavan on 22.7.2008 and took the two daughters. On 23.7.2008 morning, the dead bodies were seen in the bedroom of the house which was in the exclusive possession of the appellant. No satisfactory explanation is forthcoming from the appellant as to how the murder of these children could happen otherwise.
26. As already stated Lissy was found missing from 9.7.2008. When PWs.1 and 2 had asked the appellant about this, he told them that Lissy went to meet her uncle Anto (PW10). At that time the youngest child Amanya was a breast feeding child. Though PW2 asked about this child, the appellant told her that Lissy would come in the evening as she could not take the child since the buses were over crowded. When PW2 asked about Lissy on 11.7.2008 appellant told her that he would go to Kottayam along with Amal and Amanya and would come back with Lissy. On 11.7.2008 this witness had gone to her paternal house and she returned only on 14.7.2008. On that day also she asked the appellant about Lissy. He told her that Lissy would come with her children on 17.7.2008.
27. On 17.7.2008 they did not come as promised by the appellant. When PW2 asked the appellant on 18.7.2008 about the children, the appellant told her that Amal was admitted to a school at Pala and he would come along with the other two children who are studying there. PW2 further states that on 20.7.2008 the appellant had gone to Pala. At that time she was told that he would come back with his wife and small child. The net conclusion is that from 9.7.2008 onwards Lissy was found missing and the appellant had no explanation about this. At the time of missing, she was residing with the appellant. The postmortem report revealed that the death of Lissy might have occurred more than one week and within one month of the postmortem examination i.e. on 25.7.2008.
28. On 10.7.2008, PWs.1 and 2 have taken Amal and Amanya for attending a 'Nikah' along with them. On the next day, they saw the appellant leaving the house with the two children. The appellant told them that he was going to Kottayam to bring back Lissy. Thereafter PWs.1 and 2 have not seen those children. At about 8 p.m on 12.7.2008, PW7, who is residing near the house of PW6, saw an autorickshaw stopped near her house. She saw the appellant along with Amal and Amanya getting down from the vehicle and she identified them under the headlight of the autorickshaw.
29. One of the main arguments advanced by the learned counsel for the appellant was that the autorickshaw could be taken up to the house where the appellant was residing and therefore, there was no necessity for the appellant and the children to get down near the house of PW7. However, as rightly pointed out by the trial court, the appellant having an evil motive to finish off the children, might have thought it fit to get down near the house of PW7 so that PW1 and PW2 may not see him. According to PW7, at that point of time, she came out of the house just to ascertain whether it was her husband who came by the autorickshaw. We see no valid reason to discard the testimony of PW7.
30. The prosecution alleges that the appellant brought Amal and Amanya from Kottayam to Pattambi by the evening of 12.7.2008. To prove the travel of the appellant from Kottayam to Pattambi, Ext.P48 was proved through PW35, who is the Superintendent of the K.S.R.T.C bus station at Perinthalmanna. Ext.P48 contains the details of the tickets issued on 9.7.2008, 12.7.2008 and 23.7.2008. As per Ext.P48, on 12.7.2008, one ticket was issued from Kottayam to Pattambi. The fact that the only one ticket was issued was pointed out as a circumstance by the learned counsel for the appellant to hold that the two children were not there with the appellant. Here, we would like to point out that ticket less travel of children below 10 years by public conveyance is not uncommon in the State. Therefore, we are of the view that the aforesaid piece of evidence cannot be discarded. It is evident that during that time, there was only one K.S.R.T.C bus plying between from Kottayam and Perinthalmanna via Pattambi. Ext.P48 would indicate that on 12.7.2008 the appellant was available at Pattambi. Even if we discard the entry in Ext.P48 regarding the issue of ticket on 12.7.2008, we have the eloquent testimony of PW7, which would show that the two children named Amal and Amanya were seen along with the appellant at about 8 p.m. on 12.7.2008. Thereafter, nobody has seen the children. The Doctor who conducted autopsy on the body of the children would state that the death of the children might have taken place by more than one week and within one month of the postmortem examination held by him on 25.7.2008.
31. There is clinching evidence to show that Amal and Amanya were in the company of the appellant during the night of 12.7.2008. One of the main arguments put forward by the learned counsel for the appellant was that the witnesses who claimed to have seen these children last along with the appellant have not disclosed the said fact to anyone and, therefore, their evidence is unbelievable. But the testimonies of PWs.1 and 2 would reveal that they believed the words of the appellant till they saw the dead bodies of Amalu and Amalya on 23.7.2008. It is true that merely for the reason that the appellant and the deceased were seen together at a time very proximate to the death, a conviction on the basis of the 'last seen together' is not possible. Here, it has come out in evidence that the wife was murdered while she was residing in the same house. So also, the dead bodies of the two children were seen in the bedroom of the house where the appellant also was staying. Though the appellant has the duty to explain as to how this could happen, no satisfactory explanation was forthcoming from the side of the appellant.
32. To connect the appellant with the crime, the prosecution relied on the recovery of certain material objects by Police. MO1 and MOs.3 to 34 were the material objects recovered by PW40, the Investigating Officer, from the body of Lissy under Ext.P12 inquest in the presence of PW11. These material objects include the dress worn by Lissy and other articles found on her body.
33. PW42, who subsequently investigated the case, recovered MOs.2, 3 and 17 under Ext.P8 mahazar from the room where the body of Amalu and Amalya were found, in the presence of PW6. MOs.14 and 16 were recovered by PW40 under Ext.P5 from the body of Amalu and MO15 was recovered from the body of Amalya under Ext.P14 mahazar. PW4 witnessed these recoveries. As already stated, the bodies of Amal and Amanya were seen discarded in the property of Janaki Amma as could be seen from the testimony of PW36, the Village Officer, and Ext.P52 certificate issued by him. These bodies were found in the same compound at two different places and they were covered in a sack and bed sheet. MOs.6 to 13 and 26 were recovered from the body of Amanya under Ext.P3 by PW38 and MOs.22 to 25 were recovered by PW37 under Ext.P13. PWs.4 and 12 respectively were witnesses to these recovery mahazars. From the body of Amalya, MOs.27 to 30 were recovered by PW40 as per the inquest report. PW40 further recovered MOs.35 and 36 under Ext.P2 mahazar. As rightly observed by the trial court, the material recovery is the recovery of MO14 skirt and MO16 shimmies found on the body of Amalu. These material objects contained human semen as evident from Ext.P71chemical analyst report. All the material objects marked as MOs.1, 13 to 19, 22 to 25 and 30 to 33 contained human blood.
34. MO5, 19, 18 and 4 are material objects recovered on the basis of the confession statement made by the appellant, who was arrested on 22.7.2008. His custody was obtained by the Police on 30.7.2008. The appellant gave Ext.P60 statement in which he stated that he had kept the key of the kitchen, which could be locked from outside only, above the wall of the house. PW42 deposed that the appellant took MO5 bunch of key from there and the same was recovered as per Ext.P6 mahazar. This key was identified by PW6. It is crucial to note that the place where the key was concealed was within the personal knowledge of the appellant only.
35. On the basis of Ext.P61 confession statement given by the appellant, the recovery of MO19 scissors kept in MO7 plastic basket placed on the window of north-western bedroom of the house was also recovered under Ext.P8 mahazar. This is spoken to by PW42. Another confession statement given by the appellant is Ext.P62 on the basis of which MO18 thorthu was recovered from the place pointed out by him under Ext.P14 mahazar in the presence of PW12. Similarly MO4 mobile phone was recovered on the basis of Ext.P63 statement under P16 mahazar in the presence of PW14. This fact is also spoken to by PW43. PWs.4, 15, 12 and 14 are witnesses examined by the prosecution to prove the aforesaid recoveries and their testimonies fortified the case of the prosecution regarding the recoveries.
36. The learned Sessions Judge found that recovery of material objects under Exts.P60, P61 and P62 would not fall within the ambit of Section 27 of the Evidence Act because of the absence of authorship of concealment. As rightly noted by the learned Sessions Judge, the appellant has not stated that he has concealed MOs.5, 19 and 18 in places mentioned by him in Exts.P60, P61 and P62. However the learned Sessions Judge was of the view that the fact that appellant has pointed out the places from where those materials were recovered would be relevant under Section 8 of the Evidence Act, though the conduct by itself is not sufficient to fix the criminal liability.
37. One argument advanced by learned counsel for the appellant at this juncture is that all recoveries were from open places which were accessible to the public and, therefore, none of these recoveries are admissible in evidence. However, we are of the definite view that the material objects were not recovered from any public place. Only the appellant knew the place where those material objects were kept. These were recovered from the house in which the appellant was residing. Public had no access to that building. The key of door which could be locked from outside was concealed by the appellant who had taken out that key.
38. The Apex Court in State of H.P v. Jeet Singh (AIR 1999 SC 1293) has observed that the theory that recovery would be vitiated if the recovery of any incriminating article was made from a place which is open or accessible to others, is fallacious. As rightly pointed out by the learned Additional Director General of Prosecution, any object can be concealed in a place which is open or accessible to others. The crucial question is whether the materials which were concealed was ordinarily visible to others. If it is not, then it is immaterial that place of concealment is accessible to others. The records would show that immediately after getting information about the incident, Police personnel were deployed for guard duty. Therefore, it is impossible to believe that the scene of occurrence was tampered with by an outsider.
39. It is true that the recovery of MO1 and MO4 mobile phones by itself will not lead to any incriminating circumstances. However, the recovery of MO18 thorthu (towel) from the place pointed out by the appellant assumes relevance in the light of the testimony of PW33, the District Police Surgeon, who conducted the autopsy examination. He deposed that strangulation could be caused with a ligature like MO18. It has come out in evidence that the death of all the victims were due to strangulation. MO18 was recovered from a place pointed out by the appellant. Therefore, the conduct of the appellant in pointing out the place from where MO18 thorthu was recovered is relevant under Section 8 of the Evidence Act.
40. We thought it profitable to go through the instances which reveal the conduct of the appellant. As discussed in the preceding paragraphs, it has come out in evidence that Amalu and Amalya were taken by the appellant from Sneha Bhavan on 22.7.2008 under the pretext of taking them to attend the funeral of the mother of the appellant. The mother of the appellant was examined as PW25. She is staying with another son. Evidently, the appellant gave a false explanation to PWs.8 and 9 in taking the children from Sneha Bhavan. They were made to believe that Lissy and other two children were in his mother's house in connection with the funeral.
41. The appellant gave false statements against Lissy, Amalu and Amalya to PWs.1 and 2 when they asked about them.
The whole investigation in this case started on 23.7.2008. Consequent to the recovery of the bodies of Amalu and Amanya, search was made for Lissy and other two children. It appears that recovery of these bodies was reported in almost in all medias. However, the appellant did not turn up. He did not come to his house to see the dead bodies of his daughters, which according to us, is a very strange conduct and a strong circumstance which connects the accused with the crime.
42. It is in evidence that the appellant on 23.7.2008 had gone to Kottayam in the K.S.R.T.C bus mentioned by PW35. Ext.P48, which contains the details of tickets, shows that one ticket was issued in that bus from Pattambi to Kottyayam on the aforesaid date. PW23 was a passenger in that bus on that day, who boarded from Koppam. He testified that the appellant got into the bus from Pattambi. He could remember the appellant as there was some interaction between himself and the appellant. These pieces of evidence reveal that his travel from Pattambi to Kottayam was immediately after the death of Amalu and Amalya.
It is also in evidence that on the same day he made telephone calls to PW24 from Kottayam, as could be seen from the testimony of PW24 and through Ext.P27 call details. PW24 would state that the appellant wanted to see her. However, by that time, the news about the death of the two children had spread. This was was disclosed by PW24 to the appellant. But his response was cool. The appellant, who pleads innocence, did not care to come to the house and enquire about the alleged incident. This was pointed out as a strong circumstance by the prosecution pointing to the guilt of the accused. We cannot take a different view.
43. The prosecution relied on the medical and scientific evidences also to establish the guilt of the appellant. While considering the question of alleged rape on Amalu, we have discussed the scientific evidence relied on by the prosecution in relation to the alleged rape. The remnants of biological fluid collected from the body of Amalu on 24.7.2008 was forwarded to the Chemical Examination Laboratory and it was received in the Laboratory on 25.7.2008. After their examination those material objects were sent to C.D.F.D, Hyderabad. Ext.P68 is the forwarding note which contains the letter from the C.D.F.D to the Judicial First Class Magistrate, Pattambi dated 17.11.2008. It would reveal that the sample was forwarded to the Laboratory on 14.11.2009 and they received in on 17.11.2008. That would indicate that immediately after Ext.P34 report, the Investigating Officer has taken back the material objects from the Chemical Analyst Laboratory for being forwarded to the C.D.F.D through the Magistrate's Court for examination.
44. To prove that the appellant is sexually potent, the prosecution relied on the testimony of PW34, who issued Ext.P46 potency certificate which shows that he was capable of performing sexual intercourse.
45. The external injuries 1 and 2 seen on the body of Amalu which were noted in Ext.P32 autopsy report (see para (12) above), the findings in Ext.P34 chemical analyst report that vaginal swab and smear contained human semen, the finding in Ext.P72 D.N.A report of the C.D.F.D which states that the biological fluid (semen) present in the vaginal swab as well as on MO14 and MO16 cloth pieces correspond with the blood sample of the appellant coupled with Ext.P46 potency test certificate duly approved through PW34 would take us to the irresistible inference that it was the appellant who committed rape on Amalu.
46. The testimony of PW19 and Exts.P19 to P22 show that the children were below 16 years. On 22.7.2008 the appellant had brought Amalu and Amalya from Sneha Bhavan in the evening. There is evidence to show that the appellant raped Amalu during the night of 22.7.2008. The evidence now on record would conclude that the rape and murder form part of the same transaction. On 23.7.2008, he left the house in the early morning locking the front room from inside and kitchen from outside. As already pointed out, he left for Kottayam in the morning itself. It is impossible to believe that any outsider had an occasion to enter the house and commit murder.
47. On 8.7.2008, Lissy was in her house along with the appellant. The statement of PW10, who is the uncle of Lissy, negatives the version of the appellant that the deceased had gone to Pala in the early morning of 9.7.2008. Ext.P48 produced by PW35 also shows that no ticket was issued to Kottayam from the KSRTC bus starting from Perinthalmanna via Pattambi on that day. Hence, the version of the appellant that Lissy had gone to Pala on 9.7.2008 is false. The appellant, Lissy, Amalu and Amanya were were alone in the house. The dead body of Lissy was seen in the septic tank on 25.7.2008. From 8.7.2008 till 20.7.2008 except during the night of 11.7.2008, the appellant was also in the house. There was absolutely no possibility for any other person entering the house for causing the death of Lissy.
48. Amal and Amanya were seen by PW.1 and PW.2 on 10.7.2008. They saw the appellant along with the children on 11.7.2008 also. PW7 saw the appellant and these children at 8 p.m on 12.7.2008 while they are getting down from the autorickshaw. Thereafter nobody have seen the children. Therefore, there need not be any hesitation to hold that the children were killed at a time during the night of 12.7.2008 (i.e. before the morning of 13.7.2008).
49. We notice from the records that the stand taken by the appellant while questioning him under Section 313(1) Cr.P.C was of total denial. In State of Maharastra v. Suresh [(2001) SCC 471] the Apex Court reckoned a blunt and outright denial of incriminating circumstance pointed out by the prosecution against the accused was sufficient to connect the accused with the death of the victim in that case. In our considered view, the incriminating circumstances enumerated above irresistibly lead to an inference of guilt of the appellant. As nothing has been brought on record to make the facts proved or the circumstances established to be in any manner inconsistent with the innocence of the appellant, the prosecution has succeeded in establishing the guilt of the appellant beyond any reasonable doubt through the circumstances described above. The investigating agency by not leaving any stone unturned during the course of investigation has done a commendable job. The prompt commencement of investigation itself has helped a long way in detecting the culprit.
50. The aforesaid conclusion now takes us to the question of legality of death sentence awarded to the appellant by the trial court. While the learned Additional Director General of Prosecution justified the sentence imposed, the learned counsel for the appellant would argue that the circumstances of the case does not warrant a death sentence. The learned counsel for the appellant would submit that the evidence in this case is so feeble that even the findings of the guilt of the appellant could not be legally sustained. We cannot countenance the said argument now as on a re-appreciation of the entire evidence, we have found that the findings of the guilt and conviction by the trial court are justifiable on the evidence now placed on record.
51. In support of the argument, the learned Additional Director General of Prosecution pointed out the following circumstances which warrants a death sentence.
(a) The appellant is a matured man, aged 40. He holds a bachelors degree in Chemistry and Post Graduate diploma in Computer Application.
(b) The appellant instead of protecting his family killed them in a preplanned cruel manner.
(c) He finished off his wife and children in succession on three different days and he was having no repentance.
(d) The murder committed by the appellant is brutal, diabolical and cruel and it was against helpless, innocent and unarmed children, aged 12,10, 9, and 3.
(e) The crime committed by the appellant has shocked the collective conscience of the society.
(f) Apart from committing the murder, the appellant also raped his own daughter.
(g) If the appellant is allowed to live that will send a wrong message to the society.
52. Before going into the legality and propriety of question of sentence imposed upon the appellant, it is profitable to have a look at the various decisions of the Apex Court in the matter. The decision in Bachan Singh v. State of Punjab [(1980) 2 Supreme Court Cases 684] pronounced by the Constitutional Bench of the Apex Court stands first among the class making a detailed discussion after the amendment of Cr.P.C in 1974. The constitutionality of death sentence under Section 302 IPC and the sentencing procedure under Section 354(3) of Cr.P.C were extensively discussed and decided in this case, after finding that the provisions of death penalty, constitutionally valid. Later, discussions were made on the special reasons of awarding death sentence.
53. The Apex Court made it clear that before awarding sentence of punishment, a balance sheet of aggravating and mitigating circumstances has to be drawn up. In doing so, the mitigating substance has to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances before the option be exercised to award one sentence or the other. This will lead to the next stage where the following cardinal questions are to be answered:
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.
If, after taking into account all these circumstances, it is felt that death sentence is warranted, the Court can proceed to do so.
54. Certain guidelines were also provided in paragraphs (202 and (206) which mentions about the aggravating and mitigating circumstances. The following are the mitigating circumstances laid down by the Apex Court:
(a) The age of the appellant. If the appellant is young or old, he shall not be sentenced to death.
(b) The probability that the appellant would not commit criminal acts of violence as would constitute a continuing threat to society.
(c) In the facts and circumstances of the case, the appellant believed that he was morally justified in committing the offence.
(d) That the appellant acted under the defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
55. Here the evidence on record would indicate that none of the aforesaid circumstances are present in this case.
56. The principle laid down by the Apex Court in Bachan Sing's case (supra) that taking of life through instrumentalities of law ought not to be done save in rarest of rare cases when the alternative option is unquestionably foreclosed has undergone reconsideration in the subsequent decisions. In Machhi Singh v. State of Punjab [(1983) 3 SCC 470], the Apex Court held that whether there is no provocation from the part of the victim for murder or murder was committed in a extremely brutal, diabolical and revolting manner which arouse, intense and extreme indignation of the community, the case can be brought within the purview of rarest of rare cases.
57. After Bachan Singh's case (supra) and Machhi Singh's case (supra), a three Judges Bench of the Apex Court re- examined the current trend in the death sentence cases. It was found in Swamy Shraddhananda v. State of Karnataka [(2008) 13 SCC 767] that Machhi Singh's case (supra) has broadened the scope of death sentence which was very much restricted by Bachan Singh's case (supra).
58. The Apex Court pointed out the necessity of a bifurcated hearing and recording of special reasons. The Apex Court was of the opinion that the courts are playing active role in collecting relevant information about the crime and criminal. It further says that an objective analysis of the probability that the appellant can be reformed and rehabilitated is to be looked into. It was further observed that “public opinion” is difficult to fit in the rarest of rare matrix and, therefore, “public opinion” dies not have any role to play.
59. Here, the evidence is conclusive enough to hold that the appellant had no repentance at all. After finishing off Amalu and Amalya the appellant left the place and after reaching Kottayam he telephonically expressed his desire to join PW24. The evidence would indicate that the intention of the appellant was to live with PW24 after annihilating his family. This is a strong indication which compels us to hold that the alternative option of rehabilitation is unquestionably foreclosed.
60. The appellant was educated and it has come out in evidence that during some time he had worked as an advocate's clerk. The socio economic background of the appellant not at all justifies any of this actions. Therefore, such a mitigating factor is absent in the present case. We have come to this conclusion after approaching the question of sentence from a broad sociological point of view.
61. The learned counsel for the appellant invited our attention to the decision of the Apex Court in Rajesh Kumar v. State through Government of NCT of Delhi [(2011) 13 SCC 706] and argued that it was a similar case where the death sentence of the accused was reduced to imprisonment for life. That was a case in which the appellant had murdered two children. A four and a half year old child was murdered by slitting his throat with a piece of glass and the other child who was infant of 8 months, was killed by holding his legs and hitting him on the floor. Despite the brutality of the crime, the death sentence awarded to the convict was reduced to life stating that he was not a continuing threat to the society and the State has not produced any evidence to show that he was incapable of reform and rehabilitation.
62. Here the facts of this case would reveal that the appellant planned the murder of his wife and four children and executed the same in succession, during a period of two weeks, which would indicate that it was a pre-calculated cold blooded murder.
63. It is crucial not note that after committing the murder of his wife, the appellant had sex with PW24 during the same night. The conduct of the appellant would shock the conscience of the society, and we are of the definite view that this case cannot be equated with that of Rajesh Kumar's case (supra).
64. In a relatively recent judgment of the Apex Court in Sangeet & Another v. State of Haryana [(2013) 2 SCC 452] which mentions about the new trend in the death sentence, it was observed that aggravating and mitigating circumstances pertaining to crime and criminal are completely distinct and different elements and cannot be compared each other. That case emphasis the principle that the circumstances of the criminal has to be given due weightage and the sentence of death can be granted only when the alternative option is unquestionably foreclosed. In that case, the appellant committed the murder of 4 members of a family, including a 3 year old boy and 2 ladies, out of which he raped a lady and burnt her below waist to destroy the evidence.
65. The present case stands on a different footing. The appellant, a middle aged educated man, finished off his own family, including the innocent child, in order to have a life with PW24. Even after committing this heinous crime, he has no repentance at all. This is an important circumstance which makes us to conclude that the the appellant is incognizable.
66. The learned counsel for the appellant invited our attention to a series of decisions of the Apex Court where the death reference has been reduced to life imprisonment. We notice that those decisions can be distinguished from the case in hand because of the peculiar fact situation.
67. In Shankar Kisanrao Khade v. State of Maharastra [(2013) 5 SCC 546] the Apex Court after discussing previous decisions on the question of death sentence applied a crime test as well as a criminal test and observed that it is necessary to ascertain whether the test of aggravating circumstances are satisfied to the fullest extend and then, the Court has to see whether there is any circumstance favouring the accused i.e. the 'criminal test'. Here the possibility of reformation, age of the accused, etc., become relevant. If both the tests are satisfied i.e. the aggravating circumstances to the fullest extent and there is no mitigating circumstances favouring the accused, the court will have to apply finally the 'rarest of rare case' test (R-R test) which depends upon the perception of the society that is “social- centric” and not “Judge-centric”. It was further observed that while applying the R-R test, the court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder. It was further observed that the courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges.
68. Viewed in that profile, we are of the definite and considered view that the crime committed by the appellant in this case satisfies the crime test fully whereas, it does not satisfy the criminal test at all. The nature of the offences and the manner in which offences have been committed do not help the tilting of balance in favour of the appellant. While carrying out this complex exercise, we cannot forget our obligation to see the impact of the offence on the society as a whole and its profound ramifications. Therefore, we are of the view that the sentence imposed by the trial court on the appellant does not call for an interference and the imposition of a the lesser alternative is unquestionably foreclosed for the reasons stated above.
In the result, we uphold the findings of guilt and conviction of the appellant under Sections 302, 376, and 201 of the Indian Penal Code and confirm the death sentence imposed upon the appellant by the trial court under Section 302 IPC in exercise of the powers conferred on this Court under Section 368 read with Section 366(1) Cr.P.C, as there is absolutely nothing to interfere with the order of sentence.
The Death Reference is answered accordingly.
We also confirm the sentence imposed upon the appellant under Section 376 and 201 IPC.
Consequently, the Criminal Appeal is dismissed.
A copy of this judgment under the seal of this Court attested by the concerned official, with signature, shall be sent to the court below, without delay as per the mandate of Section 371 Cr.P.C.
Sd/- T.R.RAMACHANDRAN NAIR JUDGE krj Sd/- A.V.RAMAKRISHNA PILLAI JUDGE /True Copy/ P.A to Judge