Aneeshkumar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 23RD DAY OF JANUARY 2020 / 3RD MAGHA, 1941** **CRL.A.No.1372 OF 2015** **AGAINST THE JUDGMENT IN SC 25/2009 DATED 03-07-2014 OF ADDITIONAL SESSIONS COURT - V, PALAKKAD** **CRIME NO.73/2004 OF Ottapalam Police Station, Palakkad** **APPELLANT/ACCUSED:** **ANEESHKUMAR AGED 52 YEARS S/O.LATE SREEDHARAN NAIR, THANUVELIL HOUSE, THARUVAKKONAM ANANGANADI, OTTAPALAM TALUK, PALAKKAD DISTRICT.** **BY ADV. SRI.V.BINOY RAM** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN - 682 031.** ## **SMT.S.AMBIKADEVI, SPL.PP FOR ATTROCITIES AGAINST WOMEN AND CHILDREN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-082019, THE COURT ON 23-01-2020 DELIVERED THE FOLLOWING:** Crl.Appeal No.1372/2015 -:2:- ## **J U D G M E N T** Dated this the 23[rd] day of January, 2020 ## _**Shaffique, J.**_ This appeal has been preferred by the accused challenging the judgment dated 3/7/2014, of the Additional Sessions Judge-V Palakkad, by which he was convicted and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of `5,000/- for the offence u/s 201 of I.P.C. and life imprisonment and a fine of `10,000/- for offence u/s 302 of I.P.C., with default sentence. 2. Case of the prosecution is as follows: The accused is known under different names, such as Ani @ Anilesh @ Anilkumar @ Aneesh. He married Tharakshi, sister of PW1 at Mangalapuram on 23/1/1998. He also married PW7 Sreedevi on 9/2/1998 and made a marriage proposal to CW9. On account of matrimonial issues with Tharakshi, he wanted to do away with her. With the intention of murdering her, he took her to a shed situated at Tharuvakkonam in Ananganadi Village in Crl.Appeal No.1372/2015 -:3:- Ottappalam Taluk. Their 5 year old daughter Gourisree was also taken along with them. He mixed a poisonous substance furadan in Pepsi and gave it to Tharakshi and thereby murdered her. With a view to destroy the evidence, he removed her ' _karimani_ ' chain and ' _thali_ ', took the body into a rock crevice at a distance of 30 metres from the shed and dumped the dead body along with the 'Pepsi' bottle containing the remaining poison, glass tumbler used for mixing the poison given to her and mat. He set it ablaze using coconut husk and black oil and thereby attempted to destroy evidence. He was charged with offences punishable under Sections 302 and 201 of I.P.C. 3. To prove the said allegation, prosecution examined PW1 to PW28 as witnesses, marked Exts.P1 to P23(a) documents and identified MO1 to MO18 as material objects. Defence examined DW1 to DW4 and marked Exts.D1 to D12. After the closure of the prosecution evidence, the appellant herein was questioned under Section 313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to give him an opportunity to explain the incriminating circumstances appeared in evidence against him. He pleaded innocence. Crl.Appeal No.1372/2015 -:4:- 4. The aforesaid case came to light when FIR came to be lodged before the Ottappalam Police Station on 16/2/2004 at 9.00 p.m. FI statement was given by PW4 Sasidhar Naik, brother of deceased Tharakshi. In the FI statement, he stated that his sister Tharakshi had married a person named Aneesh on 23/1/1998. She had called him on 5/12/2003 stating that she was coming to Mangalapuram. She and her 5 year old daughter Gourisree did not reach there. He called the neighbour of the house in which she was residing, who stated that they do not know about their whereabouts. On 13/2/2004, he reached the place of their residence and they could not be located. He went to the school at Anamangad and enquired with Aneesh about the whereabouts of his sister and child and he was told that Tharakshi and child had gone to Bangalore and he does not know the place. He was informed that it was on 11/1/2004 that Aneesh had sent Tharakshi and the child to Bangalore in a train. Pursuant to the aforesaid statement, a man missing case came to be registered by the Sub Inspector of Police, Ottappalam Police Station. Ext.P15 is the FIR registered by PW24. 5. PW24 deposed that, after examining the witnesses, the Crl.Appeal No.1372/2015 -:5:- accused was arrested on 17/2/2004. On the basis of the confession statement of the accused that he would show the place where the body was burnt and the balance of pesticide in the pepsi can and the chain, he proceeded to Thiruvakkonam. They reached at 10.00 p.m. Police guard was arranged. The burnt remains were in a crevice in between two rocks, in a property of the accused. He gave a report for changing the charging sections as per Ext.P17 and further investigation was conducted by Circle Inspector of Police, Muhammed Ali. 6. PW27 was the Circle Inspector of Police, who conducted major portion of the investigation. He deposed that on the basis of the report of the Sub Inspector, he undertook investigation. Revenue Divisional Officer was requested to conduct the inquest. He sought the assistance of the Scientific Assistant and also the police surgeon for conducting post-mortem. Sealed covers received from Scientific Assistant and the Police Surgeon were sent for chemical analysis. Scene of occurrence was verified and a mahazar Ext.P3 was prepared. The remnants of the materials available from the site were collected. MO13 is portion of the burnt coconut shell and MO14 that of the coconut husk. He also Crl.Appeal No.1372/2015 -:6:- collected other material objects from the scene as per Ext.P2 mahazar. The sealed packet is MO15 and the mud contained in the ash was collected as MO16. Based on the information that the _karimani_ chain and the broken _thali_ were available in the house of the second wife of accused, they conducted search and Ext.P11 is the search list. They collected the _karimani_ chain and the _thali_ with broken hook and also found Gourisree, the daughter of accused and the deceased from the house of PW7. The child was entrusted to PW7 and the other materials MO1 and MO2 were produced before Court. He also searched the shed in the property where the remains of the body were located and Ext.P19 is the search memo. They located plastic bag containing 50 ml violet coloured liquid which could hold 250 ml, cream coloured plastic bag having 100 grams of violet coloured crystals, loose plastic packet containing light coloured crystals weighing nearly 100 grams, 100 ml plastic bottle, a bottle containing 25 ml violet solution, 5 litre plastic can with furnace oil, another can having small portion of furnace oil, pieces of mat, long hair, etc., Ext.P20 is the search list. MO17 is the long hair which was taken from the said place. Material objects were sent for chemical analysis as Crl.Appeal No.1372/2015 -:7:- per Ext.P22 forwarding note. 7. In order to prove the case, prosecution had relied upon circumstantial evidence alone. The main evidence is based on the confession statement of the accused where he had shown the place where the body had been burnt, whereas while being examined during 313 examination, he denies the aforesaid facts. The defence has also examined a few witnesses in order to prove his innocence. 8. Learned counsel appearing for the appellant Sri.Binoy Ram would argue that the prosecution was unable to prove any of the circumstances involved in the case. The trial Court has placed reliance upon the last seen theory which cannot be made applicable to the facts of the case. He relied upon judgments of the Apex Court in _**Ravi and another v. State of Karnataka**_ (AIR 2018 SC 2744) and also _**Ramreddy Rajeshkhanna Reddy v. State of Andhra Pradesh**_ (AIR 2006 SC 1656). In _**Ravi's case**_ (supra), the Apex Court held that the time lag between the occurrence of death and when the accused was last seen in the company of the deceased has to be reasonably close to permit an inference of guilt to be drawn. In _**Ram Reddy's case**_ (supra), it Crl.Appeal No.1372/2015 -:8:- was held that if the prosecution was unable to establish all the pieces of incriminating circumstances by reliable and clinching evidence and if there is no corroboration for the last seen together theory, the accused is entitled for the benefit of doubt. 9. On the other hand, learned Public Prosecutor Smt.Ambika Devi argued that after the couple was seen together by PW1, none of them has seen the deceased. PW1 was told that they were going to the place of accused. That apart, the accused had in his confession statement showed the place where the body was burnt. Other material objects collected from the scene and from the nearby shed unerringly points out that the accused alone had committed murder of the deceased. She also placed reliance on the judgment of the Apex Court in _**Suresh Chandra Bahri v. State of Bihar**_ (AIR 1994 SC 2420). Paragraphs 71 and 72 are relevant, which reads as under:- _**“71** . The two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence, and (2) he must also be in police custody. In the present case it cannot be disputed that although these essential requirements existed on the date when Gurbachan Singh led PW 59 and others to the hillock_ Crl.Appeal No.1372/2015 -:9:- _where according to him be bad thrown the dead body of Urshia but instead of the dead body the articles by which her body was wrapped were found. The provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about the confession made as to the articles of crime cannot be false. In the present case as discussed above the confessional statement of the disclosure made by the appellant Gurbachan Singh is confirmed by the recovery of the incriminating articles as said above and, therefore, there is reason to believe that the disclosure statement was true and the evidence led in that behalf is also worthy of credence._ _**72** . In the light of the facts stated above we are afraid the two decisions mentioned above and relied on by the learned counsel for the appellants have no application to the facts of the present case and do not advance the case of the appellants challenging the discovery and seizure of the incriminating articles discussed above. In Nari Santa (AIR 1945 Patna 161) (supra) the accused of that case was charged for the theft and it is said that in the course of investigation the accused produced certain articles and thereafter made a confessional statement and it was in these facts and circumstances_ Crl.Appeal No.1372/2015 ## -:10:- _it was held that there was no disclosure statement within the meaning of Section 27 as the confessional statement was made only when the articles were already discovered having been produced by the accused. Similarly the decision rendered in Abdul Sattar (AIR 1986 SC 1438) (supra) also does not help the appellants in the present case. In the case of Abdul Sattar (supra) recovery of wearing apparels of the deceased is said to have been made at the instance of the accused of that case more than three weeks after the occurrence from a public place accessible to the people of the locality and, therefore, no reliance was placed on the disclosure statement and recovery of the wearing apparels of the deceased. But in the present case it was soon after the arrest of appellant Gurbachan Singh that he took the Police Officer while in custody to the place where according to him he had thrown the dead body of Urshia wrapped by the incriminating articles. Those articles were not found lying on the surface of the ground but they were found after unearthing Khudgraha dumping ground under the hillock. Those articles were neither visible nor accessible to the people but were hidden under the ground. They were discovered only after the place was pointed out and it was unearthed by the labourers. No fault therefore could be found with regard to the discovery and seizure of the incriminating articles.”_ 10. The argument is that if the accused had not pointed out the place of occurrence, it would not have been possible for Crl.Appeal No.1372/2015 -:11:- the police to ensure that the deceased was murdered. Reference is also made to the judgment of the Apex Court in _**Prithipal Singh and others v. State of Punjab**_ [(2012) 1 SCC 10]. Paragraphs 51 to 53 are relevant, which reads as under:- ## _**“Corpus delicti — Recovery of**_ _**51.** In Mani Kumar Thapa v. State of Sikkim [(2002) 7 SCC 157 : 2002 SCC (Cri) 1637 : AIR 2002 SC 2920] this Court held (SCC p. 163, para 4) that in a trial for murder, it is “neither an absolute necessity nor an essential ingredient to establish corpus delicti”. The fact of the death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered. There are a number of possibilities where a dead body could be disposed of without any trace, therefore, if the recovery of the dead body is to be held to be mandatory to convict an accused, in many a case, the accused would manage to see that the dead body is destroyed to such an extent which would afford the accused complete immunity from being held guilty or from being punished. What is, therefore, required in law to base a conviction for an offence of murder is that there should be reliable and plausible evidence that the offence of murder like any other factum of death was committed and it must be proved by direct or circumstantial evidence albeit the dead body may not be traced. (See also Ram Chandra v. State of U.P. [AIR 1957 SC 381 :_ Crl.Appeal No.1372/2015 -:12:- _1957 Cri LJ 559] , Ashok Laxman Sohoni v. State of Maharashtra [(1977) 2 SCC 103 : 1977 SCC (Cri) 243 : AIR 1977 SC 1319] and Rama Nand v. State of H.P. [(1981) 1 SCC 511 : 1981 SCC (Cri) 197 : AIR 1981 SC 738] )_ _**52.** Therefore, in a murder case, it is not necessary that the dead body of the victim should be found and identified i.e. conviction for the offence of murder does not necessarily depend upon corpus delicti being found. The corpus delicti in a murder case has two components — death as result, and criminal agency of another as the means. Where there is a direct proof of one, the other may be established by circumstantial evidence._ ## _**Burden of proof under Section 106**_ _**53.** In State of W.B. v. Mir Mohammad Omar [(2000) 8 SCC 382 : 2000 SCC (Cri) 1516 : AIR 2000 SC 2988] this Court held that if fact is especially in the knowledge of any person, then burden of proving that fact is upon him. It is impossible for the prosecution to prove certain facts particularly within the knowledge of the accused. Section 106 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation_ Crl.Appeal No.1372/2015 -:13:- _which might drive the court to draw a different inference. Section 106 of the Evidence Act is designed to meet certain exceptional cases, in which, it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused._ _(See also Shambhu Nath Mehra v. State of Ajmer [AIR 1956 SC 404 : 1956 Cri LJ 794] , Sucha Singh v. State of Punjab [(2001) 4 SCC 375 : 2001 SCC (Cri) 717 : AIR 2001 SC 1436] and Sahadevan v. State [(2003) 1 SCC 534 : 2003 SCC (Cri) 382 : AIR 2003 SC 215] .)”_ 11. In _**Mani Kumar Thappa v. State of Sikkim**_ [(2002) 7 SCC 157] also, the Apex Court held that recovery of _corpus delicti_ is neither absolute necessity nor essential ingredient to establish murder. In _**Suresh and another v. State of Haryana**_ [(2015) 2 SCC 227], the Apex Court observed that when the recovery of dead body is from the covered gutters and personal belongings of the deceased from other places disclosed by the accused is fully established, it casts a duty on the accused as to how he alone had the information leading to recoveries, which was admissible u/s 27 of the Evidence Act. Failure to give such an explanation or giving a false explanation is an additional circumstance against the accused. Paragraph 9 is relevant, which reads as under:- Crl.Appeal No.1372/2015 ## -:14:- _**“9.** Apart from the above, this is a case where Section 106 of the Evidence Act is clearly attracted which requires the accused to explain the facts in their exclusive knowledge. No doubt, the burden of proof is on the prosecution and Section 106 is not meant to relieve it of that duty but the said provision is attracted when it is impossible or it is proportionately difficult for the prosecution to establish facts which are strictly within the knowledge of the accused. Recovery of dead bodies from covered gutters and personal belongings of the deceased from other places disclosed by the accused stood fully established. It casts a duty on the accused as to how they alone had the information leading to recoveries which was admissible under Section 27 of the Evidence Act. Failure of the accused to give an explanation or giving of false explanation is an additional circumstance against the accused as held in number of judgments, including State of Rajasthan v. Jaggu Ram [(2008) 12 SCC 51 : (2009) 1 SCC (Cri) 317]”_ 12. Before proceeding further, it will be useful to refer to the scientific evidence that had been adduced in the case. As already stated, police investigation revealed that the dead body was found in a ditch in a rocky area and according to the prosecution, that property belonged to the accused. 13. Post-mortem was conducted by PW21 Dr.P.B.Gujral. It Crl.Appeal No.1372/2015 -:15:- was conducted at site on the exhumed charred skeletal remains. The post-mortem commenced at 2.00 p.m on 18/2/2004 and concluded at 4.00 p.m. He deposed that skeletal remains were seen embedded in the ash about 10 to 15 cm below the surface of the ash bed. The plants and vegetation close to the site of cremation were charred and few showed sprouting of recent origin. Charred remains of a zip with metallic part, glass bangles and a hair clip used by female were recovered from the ash. The ash bed had abundant charred bits of fibrous covering part of coconut husk and hard coconut shell. The charred remnants of human bones were recovered and it was found to be of human origin. There was no reduplication of any bone. The bones were dry, charred and friable with easy fragmentation occurring on handling. He narrated in detail the manner in which post-mortem was conducted and finally he came to an opinion that the bones recovered were all of human origin and could belong to a single female of approximate age of about 30 years and of approximate height 152 cm (with an error factor of 4 cm). He reserved his opinion regarding cause of death pending chemical examiner's report. The chemical examination report is Ext.P13 and the post- Crl.Appeal No.1372/2015 -:16:- mortem certificate issued by him is Ext.P14. Final opinion is that the cause of death cannot be furnished due to the extensively charred state of human skeletal remains and the negative chemical examination report. He also opined that possibility of detecting poison on the bones is remote due to the fact that the bones were extensively charred. From the aforesaid evidence, it is rather clear that the remains were that of a female above the age of 30. 14. PW13 was working as Scientific Assistant on 18/2/2004. She examined the scene of occurrence in the aforesaid crime. She deposed that the ash remnants were found in a cleft between two rocks a few metres away from the house at the scene of occurrence. She collected the remnants of a zip, red bangles, a slade and a mat piece from the remains. Human skeleton parts were found in the deeper part of the ash. He had also examined the house. She obtained two plastic bottles with violet coloured solution, two packets of violet crystals similar to furadan and three bits of mat similar to the one which is found among the ashes. She collected two plastic bottles with violet Crl.Appeal No.1372/2015 -:17:- solution, two plastic containers with violet crystals, one oil can and three bits of mat which were handed over to the investigating officer. Ext.P4 is her report. The zip is identified by her as MO4 and the pieces of bangle as MO3 series. The soil collected from the rock which had oil in it was identified as MO6 and the charred mass as MO7. MO8 is the violet solution collected from the house. Yet another plastic bottle containing violet solution is identified as MO9 and MO10 is the container having violet crystals. The oil can is marked as MO11 and the plastic cover containing violet crystals is MO12. 15. PW14 Smt.Molly George was the Scientific Assistant. She received the material objects and they were examined. She opined that item 1 to 4 contained carbofuran which is a chemical name for furadan. Inflammable oil cannot be detected in item Nos. 7 and 8. Her report is Ext.P6. 16. From the materials collected from the house, which was in the property, nothing incriminating was available other than furadan. But whether furadan was administered to the victim or not, cannot be found. It can only be inferred. But in Crl.Appeal No.1372/2015 -:18:- order to draw such inference, there should be some material to indicate that the accused and the deceased were in the said house at the relevant point of time, for which also, there is no evidence. 17. The only evidence forthcoming is only with reference to the statement of PW1. PW1 has identified the accused as Aneesh Kumar. She deposed that Aneesh Kumar was residing near her house on rent along with his wife and three year old child which was prior to eight years. They resided there for three months in an adjacent house. There was always quarrel between the couple. Accused used to come once in three four days with two kilograms of rice. She used to hear her cry. Later she understood that accused was residing in a place at Tharuvakkonam. After they had gone from the said place, Tharakshi and her daughter had come on karthika day in the month of Vrishchikam. Accused also came on the same day at about 5.30 evening. She gave food to three of them. By about 7.00 p.m. they left her house. Accused told her that he had purchased a property and they were going there. The property is Crl.Appeal No.1372/2015 -:19:- a coconut garden at Tharuvakkonam. After some time, she heard that Tharakshi has been killed. 18. PW2 is Balakrishnan. He had given a building on rent to the accused at Vaniyamkulam which was about 6 years back. Accused along with his wife and child were residing there. They resided only for a period of four months. He got them vacated as the couple was a nuisance. His evidence was supported by PW3 Bindu. She deposed that PW2 had a house at Vaniyamkulam which was near to her house. It was given on rent to Anil, the accused. Along with him, resided his wife Tharakshi and the child. PW4 is the person who had given the FI statement and he is the brother of the deceased. PW5 Ali deposed that he had 3 acres and 6 cents of land at Tharuvakkonam mainly planted with coconut, and rubber and mango trees were also part of it. He had sold the plantation to the accused. During cross-examination, he stated that he had sold the property to a person by name Anil Kumar and he was told that he was a businessman. PW6 Kanakavalli is the sister of Sreedevi (PW7). She had been examined to prove that there was a marriage between accused Crl.Appeal No.1372/2015 -:20:- and Sreedevi on 9/12/1997. PW7 is Sreedevi. She was declared hostile. PW8 Parangodan has identified the accused. He deposed that he was the broker for a sale, by which the property of Ali was sold in favour of the accused and his name is Aneesh. He had told him that, after purchasing the property, he should contract a marriage. PW9 is Sister Alphonsa. She had identified the accused. She deposed that the accused had admitted his daughter to the orphanage and her name was Swathy. It was during 2004. He used to visit the child once in a while. PW10 is a witness to Ext.P1 inquest. PW11 was the Assistant Sub Inspector of Police who is a witness to Ext.P2 seizure mahazar. PW12 is a witness to Ext.P3 scene mahazar of the rock and the adjacent property. According to him, he knew the accused as he is the owner of the said property and he heard that his name was Anil and was a teacher. The accused while being examined during 313 had denied having any connection whatsoever with Tharakshi. But, from the evidence of PW1 and PW3, it is evident that the accused was residing along with Tharakshi in two different places. That apart, PW1 deposed that the accused along with the deceased and their child had come to her residence on Crl.Appeal No.1372/2015 -:21:- the Karthika day of Vrischika month and she gave them food and they left the place at around 7.00 p.m. stating that they are going to Tharuvakkonam where the accused had purchased certain property. But, according to the defence, she had not given any earlier statement before the police that after vacating the rented house, accused along with the deceased and child had come to her house on the Karthika day of Vrischika month. PW27 deposed that he examined PW1 on 25/2/2004. He admitted that while recording her statement u/s 161, she had not stated that the couple had come along with the child on Karthika day of Vrischika month. Apparently, the said evidence is an embellishment. However, there is no cross-examination about the fact that the accused along with Tharakshi and her child was her neighbour. Similarly, PW3 had given evidence that the couple along with the child were residing at Vaniyamkulam. Therefore, the association between the accused and the deceased and they had a child living with them cannot be disputed. That apart, PW4, her brother had stated that accused had married his sister Tharakshi on 23/1/1998. It is also in evidence that the accused had purchased land from PW5 at Tharuvakkonam. His evidence is supported by Crl.Appeal No.1372/2015 -:22:- PW8. Though the accused denies having any acquaintance with the purchase of the property, he had been identified by PW5 and PW8. Both of them had categorically stated that the property at Tharuvakkonam was purchased by the accused. The accused had produced Ext.D1 to prove his marriage with PW7. Ext.D2 is the information received by PW7 from the Devaswom Board High School, Erumely with reference to the school admission register of the accused Aneesh Kumar K.S. Ext.D3 is the certificate regarding the conduct of the accused issued by the school authorities. Ext.D4 is the employment certificate of the accused. He is appointed as a teacher in G.H.S.S. Anamangad. He joined service on 5/6/2000. Ext.D5 is the information received by PW7 from the Sub Registrar Office, Mangalore. She wanted information as to whether there was a marriage between Tharakshi and Anilesh Kumar, S/o Sridhar and the answer was that, there was no such material. Ext.D6 is the ration card of Sreedevi. It only shows that the card had been issued in the name of three persons viz. Sreedevi and two children. Ext.D7 is the licence of Kamalamma. Ext.D8 is a copy of the sale deed executed by Anil Kumar, S/o Kamalamma, assigning his property situated at Tharuvakkonam. Crl.Appeal No.1372/2015 -:23:- The property was purchased from Ali as per two separate sale deeds. Ext.D9 is the specimen handwriting of the accused. DW1 was the Headmistress of Devaswom Board High School. She had been examined to prove Exts.D2 and D3. DW2 was the Principal of Government Higher Secondary School. The document shown to him marked as Ext.D4 subject to proof on admissibility is the employment certificate. DW3 is Sri.K.P.Suleka. She was working as Assistant Director of Documents. She had examined Ext.D8 that is Ext.P23. She had examined the signatures and the report is Ext.D9. She opined that the questioned signature did not tally with that of the document signature. DW4 had been examined to prove Exts.D10 and D11 series. 19. The defence was trying to establish that the accused was not the person who had any dealings with Tharakshi and he is Aneesh Kumar who had married PW7. It is to prove the said fact that he had produced defence exhibits to prove that it was Anil Kumar who purchased the property from PW5 who again sold it in the year 2006. Defence also had taken up a case that Anil Kumar and Aneesh Kumar were twins. But as already stated, the Crl.Appeal No.1372/2015 -:24:- witnesses have identified the accused as the person who purchased the property at Tharuvakkonam. Probably he purchased the property in the name of Anil Kumar and that is the reason why the property was sold by Anil Kumar. But if there is a twin brother, no attempt had been made by him to prove the said fact by examining his brother. Therefore, from the nature of evidence adduced in the case, an attempt had been made by the accused to make it appear that a person who looks like him had married Tharakshi. But the evidence in the case would indicate that accused was living with Tharakshi and the accused and Tharakshi had a child and they were living in a rented building adjacent to the house of PW1. From the evidence, it is rather clear that the accused had married Tharakshi and they had a child. Accused had also married PW7, which is an admitted fact. 20. The prosecution case is that when the accused married PW7, he wanted to do away with Tharakshi and therefore she was taken to the house at Tharuvakkonam plantation. She was given poison and she was buried there. The fact that there was some poisonous substance in the house was proved by the Crl.Appeal No.1372/2015 -:25:- prosecution. It is also proved by the prosecution that a lady aged more than 30 was burnt in the very same property at Tharuvakkonam. The question is regarding the involvement of the accused. The police had clue about the place of cremation of Tharakshi's body from the confession statement of the accused himself. This fact is spoken to by the accused when he was questioned by PW24. The remains of a lady was found in a crevice in between a rocky area, at the instance of the accused. The police was investigating a man missing complaint given by PW4 alleging that his sister who was married to the accused was missing since 5/12/2003. The version of the accused, according to PW4, was that she had gone to Bangalore along with the child. FIS was given on 16/2/2004 and the accused was arrested on the very next day and when questioned by PW24, he offered to show the place where the body was burnt. He also offered to show the place where the _thali_ chain of the deceased was kept and the place where poison was available. It is based on the aforesaid confession statement that the recovery of the charred skeletal remains were recovered. S.27 of the Evidence Act clearly applies to the fact situation. Of course, as rightly pointed out by the Crl.Appeal No.1372/2015 -:26:- learned counsel for the appellant, there is no evidence to prove the last seen theory principle. The fact that the accused married Tharakshi and that they had a child and were living together is proved by the oral testimony of PW1, PW3 and PW4. The fact that the accused had purchased the property at Tharuvakkonam, a coconut garden with rubber and mango trees is further proved by PW5 and PW8. Both of them had identified the accused before Court and there is no reason to doubt their evidence. The accused had confessed to police regarding the place where the dead body was burnt based on which the police had located the said place. The inquest report was prepared by the Tahsildar and autopsy was conducted by PW21. The charred remains indicated that it was the body of a female aged more than 30 years. Therefore, from the very fact that the accused had pointed out the place where the body was buried and when it is proved that the said property was purchased by him, it is for him to explain the presence of the burnt human body or how the said incident had taken place. S.106 of the Evidence Act would come into play, in similar situations. The judgment in _**Suresh**_ (supra) squarely applies to the fact situation. Crl.Appeal No.1372/2015 -:27:- 21. There are certain matters which are within the special knowledge of the accused. If there is a valid explanation forthcoming, the accused cannot be made responsible. But, if there is no explanation and if the explanation is found to be absolutely false, then it becomes an incriminating circumstance against the accused. This is a case in which the couple were residing together and the wife goes missing. Accused denies even to have married her or living together with him, which is proved otherwise by the prosecution. In the result, we are of the view that trial court was justified in finding the accused guilty. The punishment imposed on him is also commensurate with the offence and does not require any interference. Appeal is hence dismissed. ## **Sd/-** ## **A.M.SHAFFIQUE** ## **JUDGE** **Sd/-** ## **N.ANIL KUMAR** Rp True Copy PS to Judge **JUDGE**