Raj v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR & THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 17TH DAY OF OCTOBER 2012/25TH ASWINA 1934 CRL.A.No. 851 of 2008 (B) ------------------------SC.221/2006 of 1ST ADL.SESSIONS COURT,THODUPUZHA CP.20/2006 of J.M.F.C.,NEDUMKANDOM APPELLANT(S): ------------ RAJ,C.NO.2443, CENTRAL PRISON, TRIVANDRUM. BY ADV. SMT.SANGEETHA LAKSHMANA RESPONDENT(S): -------------- STATE OF KERALA,REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.SASIDHARAN NAMBIAR** & **C.T. RAVIKUMAR, JJ. ========================== CRL.APPEAL. No.851 OF 2008 ==========================** Dated this the 17[th] day of October, 2012 ## **JUDGMENT** ## **Ravikumar, J.** Appellant, the sole accused in S.C No.221 of 2006 was convicted and sentenced to undergo imprisonment for life and a fine of Rs.10,000/- and in default, rigorous imprisonment for six months for the offence under section 302 of the Indian Penal Code, by the Court of the 1[st] Additional Sessions Judge, Thodupuzha. This appeal is against the said conviction and sentence. 2. The deceased Mini was epileptic and divulging the said disease, she was given in marriage to the appellant on 13.9.2004. After staying together for a couple of months, appellant left the deceased in her parental home and went to Madras. PW1 Jayan and **Crl.A.851/08** 2 the parental uncle of the deceased went to Madras and brought him back, a week prior to the death of Mini. The prosecution is case is that the appellant, his wife Mini and her parents were residing at Kochukudiyil house. On 7.1.2005 morning, when the appellant and the deceased were alone in that house, they engaged in an altercation in regard to the appellant's insistence for going back to Madras sans her company and the demand to the deceased for money or gold ornaments for arranging the fare for journey to Madras. On that day, Mini's father, who was a toddy tapper, went for his job in the early morning and PW3, the mother of Mini, went for plucking cardamom in the property belonging to PW5. PW2, the son of PW5 heard the cry inextremis of the deceased from her house at about 10 a.m. and thereupon, he went to the place where his parents along with PW3 were plucking cardamom and informed them about the fact. All of a sudden, PW3 went to the house and on her way, she heard cry of the deceased from the well. Thereupon, she made a hue and cry and then, PW5, his wife, PW2 and some others rushed to the spot. Some or how Mini was rescued from the well and in the meanwhile, PW1, the **Crl.A.851/08** 3 brother of Mini who was informed of the same also rushed to the spot and took Mini to the Primary Health Centre, Puttady. However, she was declared dead and her body was kept there in the mortuary. Thereupon, PW1 went to the Police Station, Vandenmedu and lodged Ext.P1 FI Statement which was recorded by PW15 the Sub Inspector of Police, Vandanmedu police station and on its basis, PW15 registered Ext.P12 FIR with crime No.11 of 2005 under section 174 of the Code of Criminal Procedure under the caption 'unnatural death'. PW15 prepared Ext.P2 scene mahazar and seized MO1 hairs found on the parapet of the well and also made requisition to the Tahsildar for conducting the inquest. The Additional Tahsildar, Udumbanchola conducted the inquest and prepared Ext.P4 inquest report on 7.1.2005 at 3.30 p.m. PW15, then, made the requisition for conducting autopsy and the body was forwarded for autopsy to Medical College Hospital, Kottayam. PW12 Dr.S.R.Saritha, the Lecturer in Forensic Medicine conducted the autopsy on the body of Mini on 8.1.2005 at 10 a.m and issued Ext.P8 postmortem certificate opining that Mini died due to the blunt injuries sustained on her neck and head. **Crl.A.851/08** 4 Thereupon, PW15 sent a report to the court for deleting the offence of 'unnatural death' and for adding section 302 of Indian Penal Code. PW15 arrested the appellant on 12.1.2005 at 6.30 p.m. The investigation was, thereafter, taken over by PW16 the Circle Inspector, Nedumkandom as Circle Inspector, Kattappana was then on Sabarimala duty. PW16 questioned the witnesses and recovered MO2 Lungi and MO3 shirt, the dresses worn by the appellant under Ext.P3. PW16 prepared Ext.P5 scene mahazar of the house and its surroundings. He prepared a forwarding note and sent it to the court for getting the material objects examined by the Chemical Examiner. Thereafter, the investigation was continued by PW17, the Circle Inspector of Kattappana. He questioned the witnesses and sent a letter to the BSNL authorities for obtaining the call particulars of the land phone installed at the house of the deceased. PW18 who was the successor of PW17 took over the investigation. He seized Ext.P6, the call list showing the phone call from the mobile phone with No.9846002640 under Ext.P7 mahazar and Ext.P14 call list showing the call details from the land phone with No.277633. After **Crl.A.851/08** 5 completing the investigation, PW18 laid the final report before the Judicial First Class Magistrate, Nedumkandom. The learned Magistrate committed the case to the learned Sessions Judge, Thodupuzha who made it over to the First Additional Sessions Judge, Thodupuzha for trial and disposal. After preliminary hearing, charge under section 302 was framed against the appellant and it was read over and explained to him. The appellant pleaded not guilty. 3. To prove the charge, the prosecution had examined PWs 1 to 8, marked Exts.P1 to P14 and identified MOs 1 to 3. After closing the prosecution evidence, the appellant was examined under section 313 Cr.P.C. All the incriminating circumstances were put to the appellant and he denied all such circumstances. The appellant filed a statement under section 313 Cr.P.C stating that at 8.30 a.m, while himself and deceased Mini were alone in the house, Mini had an epileptic attack. After about 10 minutes, she recovered from the attack and then he asked her to take rest and went to Puttady junction at about 9.30 a.m. While he was there, he heard that Mini was taken **Crl.A.851/08** 6 to hospital and immediately, he rushed to the hospital and found her dead. PW10 accursed the appellant and accused him attributing responsibility for Mini's death besides threatening him that he would be done away with in case he stayed there any further. It is further stated therein that it was in the circumstances that he left the place. On finding that it is not a case fit for acquittal under section 232 of Cr.P.C, the appellant/accused was asked to enter on his evidence. However, the appellant did not adduce any evidence either oral or documentary. After appreciating the evidence, the learned Additional Sessions Judge found the appellant guilty under section 302 IPC and sentenced him as aforesaid. This appeal is against the said conviction and sentence. Though the appeal was sent from prison, subsequently, the appellant himself engaged Advocate Sangeetha Lakshmana as his counsel. 4. We have heard the learned counsel appearing for the appellant and also the learned Public Prosecutor. The learned counsel appearing for the appellant contended that there is no conclusive **Crl.A.851/08** 7 evidence to find the appellant guilty under section 302 IPC. It is contended that the death of the deceased was not homicide and in fact, it was suicide. It is further contended that Ext.P8 postmortem certificate would reveal that the hyoid bone was found intact and the same is suggestive of suicide and not homicide by throttling. It is also contended that the prosecution had relied on circumstantial evidence to establish the charge against the appellant and in fact, there is no completed chain of circumstances to justify the finding of guilt. The learned Public Prosecutor, on the other hand, contended that the evidence of PW12 with Ext.P8 postmortem certificate would conclusively establish the fact that the death of Mini was a case of homicide and not at all a case of suicide. Relying on the evidence of PW3, it is contended that when she left for work to the property of PW5, the deceased and the appellant were alone in the house and therefore, it is a fit case for applying the theory of last seen together and that it was rightly applied by the Additional Sessions Judge. The evidence of PW3, PW2 and PW5 along with the absence of satisfactory explanation from the appellant as to what had happened **Crl.A.851/08** 8 after himself and the deceased were seen together lastly by PW3 would unerringly point to the guilt of the appellant, it is contended. 5. Firstly, we will consider the question whether the death of Mini was homicide as contended by the prosecution or suicide as contended by the appellant. PW12 Dr.Saritha conducted the autopsy on the body of Mini and issued Ext.P8 postmortem certificate. Evidence of PW12 would show that she had issued Ext.P8 under her signature. Instead of marking the postmortem certificate issued by her under her signature, the learned Additional Sessions Judge mistakenly marked the true copy of the postmortem certificate which did not carry the signature of PW12 as Ext.P8. In Ext.P8 postmortem certificate, the following antemortem injuries were noted. 1. Contused abrasion 5x3x1cms involving the front and right side of the neck horizontally placed with its inner and 4cms behind the chin and just outer to the midline. 2. Contused abrasion 6x4x1 cms horizontally placed on left side of the neck, its inner and 6cms behind the chin and just outer to the midline. - On Flap dissection of the neck, corresponding to the above injuries the subcutaneous tissues, muscles and other soft tissues were bruised. Hyoid bone, cartilages and cervical vertebrae of the neck were intact. **Crl.A.851/08** 9 3. Lacerated wound 7x2.5cms bone deep on the left side of back of head just outer to the midline at the level of occiput. The scalp tissues around showed contusion over an area 10x8x0.5cms. 4. Contusion scalp 6x5x0.4 cms on front of head 5cms above the eyebrow and 3cms outer to midline. The skull bone was normal. The subdural and subarachnoid space showed diffuse haemorrhage. The sulci of brain was narrowed and gyri flattened. 5. Abrasion 1x0.5 cms on inner aspect of right ear lobe. 6. Multiple small abrasions 7x4cms on right side of back of trunk 15cms below the top of shoulder and 10cms outer to midline. 7. Linear abrasion 10x0.2cms obliquely placed on right side of back of trunk 8cm below the top of shoulder and 1cm outer to midline. 8. Multiple linear abrasions obliquely placed over an area 20x14cms on the left side of back of trunk 10cms below the shoulder with its inner and touching the midline. 9. Contused abrasion 6x2cms on the right side of back of trunk 15cms above the top of hipbone and 10cms outer to the midline. - 10.Multiple contused abrasions over an area 20x10cms on the back of trunk 5cms above the sacram in the midline. - 11.Multiple small abrasions on the back of right buttock 10cms below the top of hipbone. - The right kidney was contused at its back with perirenal haematoma measuring 6x2.5x1cms. The peritoneal cavity contained 150 ml of blood. - 12.Contused abrasion 2.5x0.5cms on the outer aspect of right upper arm 10cms below the tip of shoulder. - 13.Linear abrasion 2x0.5cms on outer aspect of right arm 2cms above the elbow. - 14.Multiple contused abrasions over an area 12x8cms on the outer aspect of left thigh 8cms above the knee. - 15.Multiple contused abrasions over an area 12x2.5 cms in **Crl.A.851/08** 10 front of right knee and adjoining part of leg. - 16.Contused abrasion 5x1cm on the inner aspect of right knee. - 17.Multiple contused abrasions over an area 10x5cms on the front of left knee. - 18.Contused abrasion 4x1x0.2cms in front of right leg 8cms above the ankle. Flap dissection of the neck was also conducted by PW12. With respect to that it is stated in Ext.P8 as hereunder:- “On flap dissection of the neck, corresponding to the above injuries the subcutaneous tissues, muscles and other soft tissues were bruised. Hyoid bone, cartilages and cervical vertebrae of the neck were intact.” 6. PW12 deposed that injuries Nos.1 and 2 are possible by applying pressure on the neck by hand by a third person. It is further deposed that usually, during fall into a well, injury could be seen on one side of the neck and the adjoining areas of face and trunk. These were not challenged in the cross examination. In fact, the cross examination was also made virtually conceding to the fact that injuries 1 and 2 were occurred not on account of fall into the well. The learned counsel appearing for the appellant contended that the factum that the hyoid bone was intact as recorded in Ext.P8 **Crl.A.851/08** 11 postmortem certificate would only show that the death of Mini was not homicide by throttling. Evidently, the said submission is founded on the concept that in all cases of strangulation, hyoid bone must sustain fracture. Strangulation can be defined as the compression of the neck by a force other than hanging and therefore, it must take 'throttling' within its fold. To contend that absence of injury of fracture of hyoid bone found in postmortem examination would go to show that the death of Mini was not due to throttling, the appellant relies on the decision of the Hon'ble Supreme Court in **Vaduguchanti Babu v. State of A.P** reported in **2002 KHC 1726** . A scanning of **Vaduguchanti Babu's** case (supra) would undoubtedly show that the said decision did not lay down any such preposition as contended by the appellant viz., absence of injury of fracture of hyoid bone would always rule out homicidal death. A careful reading of the decision would reveal that their Lordship's found that in that case, the learned Sessions Judge relied upon the stray statement of the doctor in his cross examination to the effect that generally in all cases of throttling marks of violence and injuries could not be found to drew an **Crl.A.851/08** 12 inference that in throttling case external injury is not a necessity and having found the said inference drawn by the courts below as unacceptable and unsustainable held that what was stated by the doctor in the cross examination was not a conclusive opinion but was only a possibility. It is to be noted that their Lordships found that there was no positive medical opinion favourable to the prosecution and apart from the aforesaid inference, no other material to show that the death in that case had occurred by throttling and consequently set aside the conviction and sentence imposed by the courts below. Before analysing the evidence in this case, we will consider the sustainability of the contention that non-fracture of the hyiod bone is a sure sign of suicide and would certainly rule out the possibility of homicidal death. The said question was considered by the Hon'ble Apex Court in **Ponnuswamy v. State of Tamilnadu** reported in **AIR 2008 SC 2110** . The relevant portions of the said judgment read thus:- “20-21. It is true that the autopsy surgeon, PW-17, did not find any fracture on the hyoid bone. Existence of such a fracture lead to a conclusive proof of strangulation but absence thereof does not prove contra. In Taylor's Principles and Practice of Medical Jurisprudence, Thirteenth Edition, pages 307-308, it is **Crl.A.851/08** 13 ## stated :- "The hyoid bone is 'U' shaped and composed of five parts : the body, two greater and two lesser horns. It is relatively protected, lying at the root of the tongue where the body is difficult to feel. The greater horn, which can be felt more easily, lies behind the front part of the strip-muscles (sternomastoid), 3 cm below the angle of the lower jaw and 1.5 cm from the midline. The bone ossifies from six centres, a pair for the body and one for each horn. The greater horns are, in early life, connected to the body by cartilage but after middle life they are usually united by bone. The lesser horns are situated close to the junction of the greater horns in the body. They are connected to the body of the bone by fibrous tissue and occasionally to the greater horns by synovial joints which usually persist throughout life but occasionally become ankylosed. Our own findings suggest that although the hardening of the bone is related to age there can be considerable variation and elderly people sometimes show only slight ossification. From the above consideration of the anatomy it will be appreciated that while injuries to the body are unlikely, a grip high up on the neck may readily produce fractures of the greater horns. Sometimes it would appear that the local pressure from the thumb causes a fracture on one side only. While the amount of force in manual strangulation would often appear to be greatly in excess of that required to cause death, the application of such force, as evidenced by extensive external and soft tissue injuries, make it unusual to find fractures of the hyoid bone in a person under the age of 40 years. As stated, even in older people in which ossification is incomplete, considerable violence may leave this bone intact. This view is confirmed by Green. He gives interesting figures : in 34 cases of manual strangulation the hyoid was fractured in 12 (35%) as compared with **Crl.A.851/08** 14 the classic paper of Gonzales who reported four fractures in 24 cases. The figures in strangulation by ligature show that the percentage of hyoid fractures was 13. Our own figures are similar to those of Green." 22. In 'Journal of Forensic Sciences' Volume 41 under the Title - Fracture of the Hyoid Bone in Strangulation : Comparison of Fractured and Unfractured Hyoids from Victims of Strangulation, it is stated :- "The hyoid is the U-shaped bone of the neck that is fractured in one-third of all homicides by strangulation. On this basis, post-mortem detection of hyoid fracture is relevant to the diagnosis of strangulation. However, since many cases lack a hyoid fracture, the absence of this finding does not exclude strangulation as a cause of death. The reasons why some hyoids fracture and others do not may relate to the nature and magnitude of force applied to the neck, age of the victim, nature of the instrument (ligature or hands) used to strangle, and intrinsic anatomic features of the hyoid bone. We compared the case profiles and xeroradiographic appearance of the hyoids of 20 victims of homicidal strangulation with and without hyoid fracture (n = 10, each). The fractured hyoids occurred in older victims of strangulation (39 ±14 years) when compared to the victims with unfractured hyoids (30 ± 10 years). The agedependency of hyoid fracture correlated with the degree of ossification or fusion of the hyoid synchondroses. The hyoid was fused in older victims of strangulation (41 ± 12 years) whereas the unfused hyoids were found in the younger victims (28 ±10 years). In addition, the hyoid bone was ossified or fused in 70% of all fractured hyoids, but, only 30% of the unfractured hyoids were fused. The shape of the hyoid bone was also found to differentiate fractured and unfractured hyoids. Fractured byoids were longer in the anterior-posterior plane and were more steeply sloping when compared with unfractured hyoids. These data indicate that hyoids of **Crl.A.851/08** 15 strangulation victims, with and without fracture, are distinguished by various indices of shape and rigidity. On this basis, it may be possible to explain why some victims of strangulation do not have fractured hyoid bones." 24. A bare perusal of the opinion of the learned Author by itself does not lead to the conclusion that fracture of hyoid bone, is a must in all the cases.” 7. In view of the decision in **Ponnuswamy's** case (supra), the contention of the appellant based on the absence of fracture on the hyoid bone, that the deceased did not die of throttling cannot be upheld. 8. Now, we will consider the evidence in the case on hand. We have already adverted to the ante mortem injuries noted by PW12 who conducted the postmortem on the body of Mini, in Ext.P8 postmortem certificate. PW12 deposed that contusions in the neck are produced by rupture of blood vessels in the subcutaneous tissues. It is further deposed that injuries 1 and 2 found on the neck of Mini, mentioned above, are possible by applying pressure on the neck by a **Crl.A.851/08** 16 third person. Unlike the case in **Vaduguchanti Babu** (supra), in this case, based on the injuries noted in Ext.P8, PW12 firmly opined that the death of Mini was due to the blunt injuries sustained by her on the head and neck. That apart, it is not disputed that the body of Mini was found in the waterless well situated in her property. Going by the normal human behaviour, it cannot be expected that one would jump into a waterless well to commit suicide. MO1 hair seized from the parapet of the said well would again suggest only of homicidal death. The aforesaid circumstances together with the evidence of PW12 with Ext.P8 postmortem certificate would clearly establish that the death of Mini was homicide. 9. The next question to be considered is who is the culprit? The prosecution relied on circumstantial evidence to prove the same. The evidence of PW3, the mother of the deceased would show that in the early morning, her husband went for rubber tapping and thereafter, she went to the property of PW5 for plucking cardamom at 8 a.m. on 7.1.2005. When she left the house for the said work, the accused and **Crl.A.851/08** 17 the deceased were alone in the house. The said fact that they were alone in the house, at the relevant point of time, was virtually admitted by the appellant in his statement filed under section 313 Cr.P.C. In the said statement under section 313, he stated thus:- “അന� ദ�വസ� ര�വ�ല� 8.30 സമയത� മ�ന�ക� അപസ�മ�രത�ല� അസ�ഖ� ഉണ�യ�. ട� സമയത� ഞ�ന�� മ�ന�യ�� മ�ത!നമ വ"ട�ല ഉണ�യ�ര���ള�. (On that day at 8.30 a.m., Mini had epileptic attack. At that time, myself and Mini were alone in the house).” (emphasis added) 10. In such circumstances, it is for the appellant to prove or offer satisfactory explanation as to what had happened after they were lastly seen together by PW3 and how Mini had received the injuries. Appellant in the statement under section 313 Cr.P.C stated that after epileptic attack at 8.30 a.m., she recovered from it within ten minutes and he gave her water and asked her to take rest and thereafter, at 9.30 a.m, he went to Puttady junction and it was while standing there he came to know about the fact that Mini was taken to the hospital. The evidence of PW5 Sivadas would show that the appellant was there in **Crl.A.851/08** 18 his in-law's house immediately after the incident and when he went to take the rope and returning with the rope, the appellant was very much present in the premises of the house. That apart, in the statement given under section 313 Cr.P.C, the appellant specifically stated that while he was standing in Puttady junction, he came to know about the fact that Mini was taken to the hospital and when he went to the hospital PW1 scolded him and driven him away from there stating that he was responsible for the death of his sister and he would be done away with if seen in the locality any further. Ext.P1 FI Statement was given by PW1 after his return from the said hospital and it would reveal that PW1 stated before PW15 that he got no suspicion on the death of his sister Mini. If such an incident as alleged by the appellant had occurred at the hospital definitely PW1 would not have given such a statement in Ext.P1 F.I.S going by the normal human conduct. As noticed earlier, PW5 had deposed about the presence of the appellant in the premises of Kochukudiyil house and evidently, this was not seriously challenged by the appellant. PW2 deposed that he heard the cry inextremis of Mini from Kochukudiyil house at about 10 a.m. on **Crl.A.851/08** 19 7.1.2005 and thereupon, he rushed to the place where his parents as well as PW3, the mother of the deceased were plucking the cardamom. On being informed about the same, PW3 rushed to her house and on her way, she found Mini at the bottom of the well crying “ അന& അന& , ”. Thereupon, she made hue and cry and PW5, his wife, PW2 and certain others gathered there. This version of PW3 is corroborated by the oral testimonies of PWs 2 and 5. The queerly behaviour of the appellant is also worthy to be noted. It is in evidence that he was very much present in Kochukudiyil house immediately after the incident but, he had not participated in the rescue operations as also had not taken any step to take Mini to any hospital. Moreover, the appellant had not taken part in her obsequies. In view of his queer behaviour, as aforenoted, and in the absence of explanation as to how the deceased received the antemortem injuries as noted in Ext.P8 as also the false explanation given in his statement given under section 313 Cr.P.C, the decisions of the Hon'ble Apex Court in **Ponnuswamy's** case (supra) and in **Trimukh Maroti Kirkan v. State of Maharashtra** reported in **(2006) 10 SCC 681** assume **Crl.A.851/08** 20 ## relevance. In **Ponnuswamy's** case (supra), it was observed:- “18. We have to consider the factual background of the present case in the light of the relationship between the parties. If his wife was found missing, ordinarily, the husband would search for her. If she has died in an unnatural situation when she was in his company, he is expected to offer an explanation therefor. Lack of such explanation on the part of the appellant itself would be a circumstantial evidence against him.” ## In **Trimukh Maroti Kirkan's** case (supra), it was observed:- “15. Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation. 21. In a case based on circumstantial evidence where no eye witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this **Crl.A.851/08** 21 Court. (See **State of T.N.** v. **Rajendran** ((1999) 8 SCC 679 para6); **State of U.P.** v. **Dr.Ravindra Prakash Mittal** ((1992) 3 SCC 300 para 39 : AIR para 40); **State of Maharashtra** v. **Suresh** ((2000) 1 SCC 471 para 27); **Ganesh Lal** v. **State of Rajasthan** ((2002) 1 SCC 731 para 15) and **Gulab Chand** v. **State of M.P.** ((1995) 3 SCC 574 para 4).” 22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. In _**Nika Ram**_ v. _**State of H.P.**_ ((1972) 2 SCC 80) it was observed that the fact that the accused alone was with his wife in the house when she was murdered there with “khukhri” and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt. In _**Ganeshlal**_ v. _**State of Maharashtra**_ ((1992) 3 SCC 106) the appellant was prosecuted for the murder of his wife which took place inside his house. It was observed that when the death had occurred in his custody, the appellant is under an obligation to give a plausible explanation for the cause of her death in his statement under Section 313 CrPC. The mere denial of the prosecution case coupled with absence of any explanation was held to be inconsistent with the innocence of the accused, but consistent with the hypothesis that the appellant is a prime accused in the commission of murder of his wife. In _**State of U.P.**_ v. _**Dr.Ravindra Prakash Mittal**_ ((1992) 3 SCC 300) the **Crl.A.851/08** 22 medical evidence disclosed that the wife died of strangulation during late night hours or early morning and her body was set on fire after sprinkling kerosene. The defence of the husband was that the wife had committed suicide by burning herself and that he was not at home at that time. The letters written by the wife to her relatives showed that the husband ill-treated her and their relations were strained and further the evidence showed that both of them were in one room in the night. It was held that the chain of circumstances was complete and it was the husband who committed the murder of his wife by strangulation and accordingly this Court reversed the judgment of the High Court acquitting the accused and convicted him under Section 302 IPC. In _**State of T.N.**_ v. _**Rajendran**_ ((1999) 8 SCC 679) the wife was found dead in a hut which had caught fire. The evidence showed that the accused and his wife were seen together in the hut at about 9.00 p.m. and the accused came out in the morning through the roof when the hut had caught fire. His explanation was that it was a case of accidental fire which resulted in the death of his wife and a daughter. The medical evidence showed that the wife died due to asphyxia as a result of strangulation and not on account of burn injuries. It was held that there cannot be any hesitation to come to the conclusion that it was the accused (husband) who was the perpetrator of the crime.” 11. Another circumstance established by the prosecution which is a link in the chain of circumstances is that the deceased had made a call to PW6 on 6.1.2005 in the mobile phone of PW4 and she was then crying. Deposition to that effect by PW4 was admitted as correct by the appellant himself during his 313 Cr.P.C. examination. **Crl.A.851/08** 23 The suggestion made as to the possible cause to PW12 in respect of the injuries sustained by the deceased except injury Nos.1 and 2 would undoubtedly show that the appellant was also not seriously disputing the fact that the deceased had sustained such injuries on account of the fall into the well. In this case, as already stated, in the statement filed under section 313 Cr.P.C, the appellant had made palpably false statements with regard to his non-availability at the time of the incident as also with regard to the behaviour of PW1. There is conspicuous absence of any explanation therein as to how the deceased received the injuries that caused her death and how scalp hairs happened to appear on the parapet. When the admitted case of the appellant that at 8.30 a.m., he and the deceased were alone in the house on 7.1.2005 and when the evidence of PW3 establish that appellant was last seen alive with the deceased at 8 a.m when she left for work, the appellant has to offer satisfactory explanation or to prove what had happened thereafter. The non-explanation/falseexplanation as aforesaid, is an additional link to the chain of circumstances to make it complete. All the aforesaid circumstances **Crl.A.851/08** 24 including the oral testimonies of PW1, PW2, PW3 and PW5 together with the absence of any satisfactory explanation from the appellant as to how the deceased received the injuries and the false explanation in his statement under section 313 Cr.P.C and the application of the theory of last seen together would unerringly point to the fact that it was the accused and none else who committed the murder of Mini. 12. On the evidence, we find no reason to differ from the finding of the learned Additional Sessions Judge that appellant had throttled Mini and thereafter dragged her and pushed her into the well with the intention to cause her death and had caused death. The fact that the appellant and the deceased had an altercation in the morning of 7.1.2005 regarding his proposal to go to Madras for employment was admitted by the appellant in his statement filed under section 313 Cr.P.C. The prosecution has succeeded in establishing the fact that it is the altercation on the said issue that ultimately led to the commission of the crime. None of the exceptions under section 300 IPC is attracted in the view of the facts and evidence in this case and **Crl.A.851/08** 25 therefore, the appellant is liable to be found guilty for the commission of offence under section 300 IPC. The conviction of the appellant under section 302 of IPC is, therefore, perfectly legal. The learned First Additional Sessions Judge, Thodupuzha is reasonable in imposing the sentence inasmuch as only the lesser sentence is imposed for the conviction under section 302 IPC. We find no reason to interfere with the sentence as well. In the result, the appeal is dismissed confirming conviction and sentence imposed by the First Additional Sessions Judge, Thodupuzha in S.C.No.221 of 2006, on the appellant. **M.SASIDHARAN NAMBIAR (JUDGE)** **C.T. RAVIKUMAR** **(JUDGE)** **spc/** **Crl.A.851/08** 26 **M.SASIDHARAN NAMBIAR & C.T. RAVIKUMAR, J.** **CRL.A.No.851/08** **JUDGMENT** **17[th] October, 2012** **Crl.A.851/08** 27