s/o Raveendran Vs. Babu s/o Bahuleyan & Anr  Insc 367 (11 August 2003)
Raju & H.K. Sema.
APPEAL NO. 271/1996 Sema, J.
two appeals arise out of a common judgment and order of the High Court dated
29.11.1994 passed in Criminal Appeal No. 626 of 1994 and R.T.No.2 of 1994 and
are being disposed of by this common judgment.
Appeal No. 270 is preferred by the defacto complainant (PW-1), the brother of
the deceased. Criminal Appeal No. 271 is preferred by the State of Kerala.
facts of this case as unfolded by the prosecution are brief but horrendous,
which shock human conscience. The marriage of the deceased - Sujatha with
accused Babu was solemnised on 2.2.1993. Thereafter, the couple stayed together
in the parental house of the bridegroom. The deceased seems to have elicited
information from PW-3 Lekha, wife of the younger brother of the accused, that
the accused had a pre-marital affair with one Omana @ Vavachi (PW-2). The
deceased could not tolerate the information so elicited about the extra marital
connection of her husband with Omana. She became repulsive and adopted an
unresponsive attitude towards the overture approach made by the accused and she
succeeded by keeping him at bay on the bridal night. It appears that the
deceased had adopted the same stiff attitude towards the accused on the second
night also i.e. 3.2.1993, which had enraged the accused. On being unable to
sustain the lust for sex, persistently prevented by the deceased, the accused
decided to end the life of the deceased, strangulated her and killed her.
Thereafter, the body of the deceased was lifted and taken to an unused well,
situated about 17 metres away from the house of the accused and dumped. It is
also alleged that at about 2.30 a.m., the
accused had woken up the inmates of the house and disclosed to them that his
wife was missing and in a hectic search that followed, the body of the deceased
was spotted inside the well and was brought out from the well. First
Information Report was lodged by PW-1, the brother of the deceased and it was
registered as a case of unnatural death.
the receipt of result of the autopsy, it was confirmed that Sujatha died due to
strangulation. The FIR was, accordingly, converted into a case of murder.
this case the prosecution has examined as many as 15 witnesses.
of the DWs were examined on behalf of the accused. PW-2 Omana is a lady who was
alleged to have had extra marital relation with the accused was declared
hostile. PW-3, Lekha is the wife of the accused's elder brother. PW-4 Sasidharan
is the husband of PW-3 and elder brother of the accused who was declared
hostile. PW-5 Rathesh Kumar was also declared hostile. PW-6 Bahulayan is the
father of the accused.
the trial, the learned Trial Judge, held the accused guilty under Section 302
IPC and imposed the extreme penalty of death sentence.
appeal, the High Court set-aside the conviction and sentence and acquitted him.
The High Court has also dismissed R.T.No.2 of 1994. Both the Courts below
concurrently held that the death is homicidal and not suicidal. This question,
therefore, need not detain us any longer.
are heard at length. Mr. John Mathew learned counsel for the appellant – State
in Crl. A. No. 271 of 1996 and Mr. EMS Anam, learned counsel for the appellant
in Crl. A. No. 270 of 1996, contended that the circumstantial evidence well
proved unerringly point to the guilt of the accused beyond reasonable doubt. He
further contended that the High Court was in error in holding that the
testimony of PW-6 was a mistake. Per contra Mr. MP Vinod, learned counsel for
the respondents contended that circumstantial evidence do not led to the guilt
of the accused. It is his further contention that there is no direct evidence
and the acquittal recorded by the High Court may not be disturbed.
case of the prosecution entirely rests on circumstantial evidence.
High Court has considered the following circumstances appearing against the
died of murder and the dead body was in a well situated about 17 metres away
from the house.
The appellant and deceased were closeted in a bedroom at about 8.30 p.m. on the fateful day.
(3) A lungi
was recovered from the appellant's room as produced by him.
appellant's father when examined as P.W.6 said that the appellant had told him
at 2.30 a.m. that the deceased was dead.
When the appellant was questioned by the Sessions Judge under Section 313 Cr.P.C.
he had stated that there was no attempt on his part to have sexual relationship
with Sujatha, but conceded later by saying that he had sexual inter-course with
was examined as P.W.13. She stated that she had conducted autopsy and found the
following ante-mortem injuries:-
Pressure abrasion, 11 cm. long, horizontal, on the front and right side of
neck, inner end in the midline, over thyroid cartilage, 9 cm. behind the chin
(1.5 cm broad), and outer end 7 cm. below and 3 cm behind the right ear (1.8
Pressure abrasion, 9.5 cm. long, oblique, on the front and left side of neck,
inner lower end being 1.5 cm below thyroid cartilage and in the midline (1.4
cm. broad) and outer upper end being 6 cm. below and 2.5 cm. behind the left
ear (1.5 cm broad)
Linear abrasions, 1.3 cm. and 0.8 cm. oblique, parallel to each other 0.5 cm.
apart, on the front of middle of neck, 0.5 cm.
also found that hymen showed a tear in the 5'o clock position whose margins
were reddish. Doctor opined that the deceased had died of constriction force
around the neck. Doctor further opined that injury nos. 1 and 2 could be caused
by applying force on the neck by tying a Kayali (Lungi) on the neck. In the
opinion of doctor, injury nos. 1 and 2 are sufficient in the ordinary course of
nature to cause the death. Doctor further opined that injury No.3 is possible
to be caused by that portion coming into contact with the top of a nail.
further stated that there were signs of attempted sexual intercourse but as to
whether there was sexual intercourse can be ascertained only by examination of
the vaginal swab and smear. She has further stated that vaginal swab and smear
had been collected and preserved at the time of autopsy, and the same had been
forwarded to the Chief Chemical Examiner's Laboratory at Thiruvanthapuram for
chemical examination. She also stated that she had received the report of
chemical examination marked Exhibit P-15 and the report showed the vaginal
smear and swab when examined did not show the presence of semen and
spermatozoa. In cross- examination PW-13 denied the suggestion that if the body
of the deceased is immersed in water for a long time viz. for a few hours and
even if the body has been subjected to movements, it will not wash away the semen
High Court was of the view that since in the opinion of doctor the hymen showed
a tear in the 5'o clock position whose margins were reddish and therefore the
couple had sexual consummation either on the first night or on the succeeding
night and the allegation against the accused that he became revengeful on
account of his failure to accomplish copulation with his wife is bound to
shatter. The High Court seems to have been carried away by the fact that there
was a tear of hymen in the 5'o clock position shows the couple had sexual
consummation. This finding, in our view, is not based on totality of
appreciation of evidence of PW-13. As noticed above, PW-13 had clearly stated
that there were signs of an attempted sexual intercourse but as to whether
there was sexual intercourse could be ascertained only by examination of the
vaginal swab and smear, which had been preserved. PW-13 also stated that the
report of chemical examination Exhibit P-15 showed that vaginal smear and swap
did not show the presence of semen and spermatozoa. Absence of semen and
spermatozoa in the vaginal smear and swap is indicative of the absence of
has been defined in Black's Law Dictionary Sixth Edition, as "the
completion of a thing; the completion of a marriage by cohabitation (i.e.
sexual intercourse) between spouses." In the facts of the present case,
the sign of attempted sexual intercourse means that the accused was making an
attempt to have sexual intercourse with the deceased and the deceased was
resisting the attempt.
tearing of hymen in the 5'0 clock position could have occurred in the process
of resistance. The report of chemical examination that vaginal smear and swab
did not show the presence of semen and spermatozoa confirmed the absence of
complete sexual intercourse.
in the evidence of PW-3 that Sujatha (deceased) was a girl of good character.
It is a matter of common knowledge that a girl of self- respect would refuse to
cohabit even with her own husband, if it is found that her husband was having
pre-marital sex with another woman. There are varied reasons for this. Apart
from morality, she would run the risk of contacting sexually communicable
disease and she would resist cohabiting even with her own husband. It is but
quite natural, therefore, that on the bridal night she had succeeded in
refusing to cohabit with her husband and she was determined to do the same
thing on the next night, which would have enraged the husband being not
satisfied with lust for sex, decided to do away with her finally after making
an aborted attempt. Having regard to the background and circumstances of this
case as well as the very wavering stand of the accused as to whether he did not
have sexual inter-course with the deceased prior to her death and medical
opinion as to the absence of semen and spermatozoa and the fact that if it
really was, it would not have got washed in the circumstances found in this
case, there is every possibility that the accused was pressing the throat of the
deceased and at the same time was trying to have sexual intercourse with her
and in the process the tearing of hymen in the 5'o clock position could have
occurred but without consummation.
three injuries on the neck of the accused found by the doctor as noticed above,
there is every possibility that the accused applied pressure on the neck of the
deceased in an excess of sadism to frighten or torment the deceased or to
overcome resistance, can not be ruled out.
second important circumstantial evidence against the accused is that the
accused and the deceased were last seen together. To put it tersely both of
them slept together by retiring to the room that night. Last seen together in
legal parlance ordinarily refers to the last seen together in the street, at a
public place, or at any place frequented by the public. But here, the last seen
together is much more than that. The last seen together here is sleeping
together inside the bolted room. It is in the evidence of PW-3 and PW-6 that
they had dined together and the accused and the deceased were closeted in a
room at about 8.30 p.m. Therefore, on the fateful day the
accused and the deceased were closeted in a bedroom at about 8.30 p.m. is
undisputed and it is for the accused alone to explain as to what happened and
how his wife died and that too on account of strangulation.
third circumstantial evidence against the accused is the recovery of lungi
produced by the accused. The High Court was of the view that mere recovery of lungi
from the bedroom of the accused is of no consequence, as lungi is commonly worn
in domestic life and it is not a strange commodity in a bedroom of any person.
The High Court seems to have failed to notice that in the evidence of PW-3 she
had stated that her husband saw the lungi in the well on the eastern side of
the house and they saw Sujatha was lying dead in that. It is also in the
evidence of PW-11, KR Gopikuttan Nair, that he took into custody the
underskirt, one pink blouse, white brassieres worn by the dead body, the lungi
which was lying in the well in which the body was lying and these material
objects were taken and marked as M.Os 2 to 5. This would show that there was
more than one lungi in the house, one was thrown with the body and the other
worn by the accused, which was recovered from the house.
fourth circumstance, even from the view of the High Court, if found believable,
certainly a decisive point to the guilt of the accused, is the statement of
PW-6, the father of the accused. PW-6 in his statement under Sections 161 and
164 Cr.P.C. had stated that his son, the accused had told him at about 2.30 a.m. that the deceased Sujatha was missing from the room.
in his examination in Court, PW-6 stated that the accused told him at 2.30 a.m. that Sujatha had died. It could not have been a slip
of tongue since at two places and in two different contexts he has stated about
the accused having told that Sujatha had died. The High Court was of the view
that since PW-6 in his statement under Sections 161 and 164 Cr.P.C. had stated
that the accused had told him at about 2.30 a.m. that his wife was not seen in the room, there is no reason why PW-6
would have said in Court that the accused had said that Sujatha had died. There
is no justification or scope for any assumption, by any one. The High Court was
of the view that this was a mistake committed by PW-6. In our opinion, the view
taken by the High Court was clearly erroneous. As already noticed, in his
examination under Sections 161 and 164 Cr.P.C. he had stated that the accused
told him at about 2.30
a.m. that Sujatha was
missing from inside the room. In his examination in the Court he, however,
stated that at about 2.30
a.m. the accused
informed him about the death of Sujatha. PW-6 is no other than the father of
the accused. It is but quite natural that he would try to save his son from
punishment. It must be grasped that the truthness of witness is always tested
in the court, because his statement is subjected to scrutiny. Truthness of
witness is elicited from the cross-examination. This witness was declared
hostile and was subjected to cross-examination by the Public Prosecutor as well
as by the accused. In his cross examination the witness stated as under: -
"I came to know about the daughter-in-law at 2 O'clock in the night. That information was given by the Accused
himself. It was after telling me about the death of Sujatha that the Accused
himself banged on the room of my elder son Sasidharan and his wife (PW4 and
PW3) woke them and told them. At the time when the Accused told me about the
death of Sujatha, PW4 and PW3 had not woken up." It is difficult to accept
that PW-6 has committed a mistake in saying so. We are clearly of the view that
the statement of PW-6 in the Court that the accused had told him at about 2.30 a.m. that Sujatha had died is the true statement of
witness and not a mistake. Having regard to the background and circumstances of
this case as noticed above, the statement of PW-6 is too significant to be
ignored. We have already observed that being the father of the accused he would
try to save the accused in his statement under Sections 161 and 164 Cr.P.C. but
during the cross examination truth has been elicited from the mouth of PW-6.
the question remains to be considered is who is responsible. As already
noticed, the accused and the deceased were closeted inside the room.
is no evidence of intruder. In such a situation, the circumstances leading to
the death of the deceased are shifted to the accused. It is he who knows in
what manner and in what circumstances the deceased has met her end and as to
how the body with strangulation marks found its way into the nearby well. All
the aforesaid circumstances, taken together cumulatively lead and unerringly
point only to the guilt of the accused.
result, the order of the High Court acquitting the accused is hereby set-aside.
question that remains for consideration is with regard to sentence.
already noticed, the learned Trial Court awarded the maximum punishment of
death sentence for an offence under Section 302 IPC. While awarding capital
punishment, the learned trial judge, was of the view that the deceased, aged
about 21 years, was married to the accused reposing full faith that her life
would be secured in his hands and was expecting a matrimonial home with full
hopes to have a happy conjugal married life, has been ruthlessly nipped in the
bud of her life, falls within the ambit of rarest of rare cases.
Court in Bachan Singh VS. State of Punjab, (1980) 2 SCC 684 following two
questions that may be asked and answered as a test to determine the 'rarest of
rare' case in which death sentence can be inflicted:
there something uncommon about the crime which renders sentence of imprisonment
for life inadequate and calls for a death sentence?
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?
also formulated the following guidelines, which would have to be applied to the
facts of each individual case where the question of imposition of death
The extreme penalty of death need not be inflicted except in gravest cases of
Before opting for the death penalty the circumstances of the 'offender' also
require to be taken into consideration along with the circumstances of the
Life imprisonment is the rule and death sentence is an exception. Death
sentence must be imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the relevant circumstances of
the crime, and provided, and only provided, the option to impose sentence of
imprisonment for life cannot be conscientiously exercised having regard to the
nature and circumstances of the crime and all the relevant circumstances.
balance-sheet of aggravating and mitigating circumstances has to be drawn up
and in doing so the mitigating circumstances has to be accorded full weightage
and a just balance has to be struck between the aggravating and the mitigating
circumstances before the option is exercised.
present case, in our view, though the murder is gruesome, but taking the facts
and circumstances into consideration, the crime committed by the accused does
not satisfy the above tests and it is difficult to say that it falls within the
ambit of the 'rarest of rare' cases. In our view, therefore, the sentence of
life imprisonment for an offence under Section 302 would be adequate. The
accused is, accordingly, sentenced to rigorous imprisonment for life under
Section 302 IPC. With this modification in sentence the appeals are allowed.
accused is on bail. His bail bond stands cancelled. He is directed to be taken
into custody forthwith to serve out the remaining part of the sentence.