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Tuesday, November 6, 2012

On 08.04.2000, between 6-7 a.m., Jayanthi (A-1) along with other accused persons assembled at the backside of the Temple and started beating Leelavathi causing grievous injuries to her and Jayanthi strangulated her neck which resulted into her death. In the case of circumstantial evidence, motive also assumes significance for the reason that the absence of motive would put the court on its guard and cause it to scrutinize each piece of evidence closely in order to ensure that suspicion, omission or conjecture do not take the place of proof. In the case on hand, the prosecution has demonstrated that initially, the deceased entered the Ashram in order to assist the devotees and subsequently became one of the Trustees of the Trust and slowly developed grudge with the appellants. PWs 35 and 36, sister and brother of the deceased Leelavathi deposed that since then she became a Trustee, there was a dispute with regard to the Management of the said Trust. 32) From the above materials, we noted the following circumstances relied on by the prosecution, accepted by the trial Court and the High Court : (i) The deceased was a member of the Trust. (ii) On 08.04.2000, the date of incident, there was some kind of commotion in the Ashram. (iii) The death occurred in the Ashram. (iv) In the complaint to police (Exh. P-1), it was stated that there was distress cry of the deceased. (v) PW-4 heard a commotion in the Ashram. (vi) A-2 approached PW-6 (Doctor) stating that a lady was lying unconscious. (vii) PW-7 (another Doctor) was requested to attend a lady lying unconscious. (viii) The accused failed to take the deceased to the hospital rather they preferred to treat her in the Ashram itself with the help of known doctors (PWs 6 & 7). (ix) PW-7 visited the Ashram and found a body lying beneath the Sofa. (x) The dead body was covered with a Saree and, therefore, PW-7 could not have seen any external injury. (xi) The accused have chosen not to conduct post mortem hence, the real cause of the death was completely suppressed. (xii) PW-8 was told not to report for work in the afternoon. (xiii) The accused have failed to inform any of the relatives of the deceased (PWs 35 & 36) though they lived in the same town. (xiv) A-2 visited PW-15’s place for arranging for the cremation. (xv) PWs 15 & 16 asked about the availability of relatives and the accused answered in the negative. (xvi) PWs 15 to 18 identified A-3 as being present at the time of cremation. (xvii) The time of cremation of the deceased was late in the evening, though the death occurred in the forenoon itself. (xviii)The accused had voluntarily lied to the persons who were cremating the body (vettiyan) that the deceased was an orphan and has no relatives. Conclusion: 33) The above analysis clearly shows that though there is no direct evidence about the cause of death, various circumstances projected by the prosecution complete the chain of link and established that, in all probability, the act must have been done by the appellants. All the circumstances have been clearly discussed by the trial Court and it rightly convicted and awarded appropriate sentence. The High Court, as an appellate Court, once again marshaled all the materials leading to the death of the deceased Leelavathi and confirmed the same. We fully concur with the said conclusion. Consequently, the appeals fail and are accordingly dismissed.


                                     REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                     1 CRIMINAL APPEAL NO. 1539 OF 2008




Sathya Narayanan                                  .... Appellant(s)

            Versus

State Rep. by
Inspector of Police                                     .... Respondent(s)


                                    WITH

                      CRIMINAL APPEAL NO. 1573 OF 2009


                                      2



                               J U D G M E N T




P.Sathasivam,J.

1)    These appeals are  directed  against  the  judgment  and  order  dated
17.04.2008 passed by the Madurai Bench of the Madras High Court in  Criminal
Appeal No.1108 of  2000  whereby  the  Division  Bench  of  the  High  Court
dismissed the appeal filed by the appellants herein and confirmed the  order
of conviction and sentence dated 14.11.2000 passed  by  the  Ist  Additional
Sessions  Judge-cum-Chief  Judicial  Magistrate,  Trichy  in  Sessions  Case
No.139/2000.
2)    Brief facts:
(a)   Jayanthi (A-1) (Appellant No.1 herein in Criminal Appeal No.  1573  of
2009) was married to one Rajendran (PW-34) and they were residing at  Trichy
along with their children.  After the  death  of  their  daughter,  Jayanthi
intended to lead a spiritual life and Rajendran  started  living  separately
whereas their son Sathya Narayanan (A-4) was living with her.
(b)   Jayanthi (A-1) was actually running an Ashram in the name of Sri  Devi
Maha Sannathi at Govardhan Garden, K.K. Nagar, Trichy.   The  other  accused
persons, viz., A-2 to A-11 therein were assisting her in the affairs of  the
Ashram whereas A-12 was working as a Watchman in the said Ashram.
(c)   One Sriputhra (A-2) used to visit the said Ashram and became a  Member
and stayed there along with his son  Sathya  Narayanan  (A-3)  and  daughter
Sadhana (A-7) leaving his wife.  According to the  prosecution,  during  the
course of time, A-1 and A-2  developed  illicit  intimacy.   One  Leelavathi
(since deceased), who was originally taking tuition for the children of  A-1
and A-2, has also became a Member and she was looking after the accounts  of
the said Ashram.  During her continuation in the Ashram, A-2 and  Leelavathi
also developed illicit intimacy with each other.
(d)   On account of the above, there was a quarrel  between  Jayanthi  (A-1)
and Leelavathi (deceased) and  Leelavathi  threatened  her  that  she  would
disclose about her illicit intimacy with A-2 to  the  outside  public  which
would cause disgrace and shame to her and that she should be given  a  share
in the property of the Ashram.
(e)   On 08.04.2000, between 6-7  a.m.,  Jayanthi  (A-1)  along  with  other
accused persons assembled at the backside of the Temple and started  beating
Leelavathi causing grievous injuries to her and  Jayanthi  strangulated  her
neck which resulted into her death.  Sivasanmugam (PW-1), who  was  residing
in the house situated nearby the Temple, heard the cries of  Leelavathi  and
after two days, he came to know that Leelavathi was beaten to death and  the
dead body was burnt in the burial ground.
(f)    On 17.04.2000, PW-1 lodged a complaint at K.K. Nagar Police  Station,
Trichy which came to be registered as C.S. No. 78  of  2000  mentioning  the
suspicion over the death of Leelavathi.  After investigation, the  case  was
committed to the Court of Sessions and numbered as Sessions Case No. 139  of
2000 and the  charges  were  framed  against  12  accused  persons  for  the
offences punishable under Sections 147, 302 read with 149  and  201  of  the
Indian Penal Code, 1860 (in short ‘IPC’).
(g)   By judgment dated 14.11.2000, the trial Court while acquitting A-6  to
A-11, convicted A-1 to A-5 under Sections 302 read with Section 149 and  201
of IPC and sentenced them to undergo rigorous  imprisonment  (RI)  for  life
along with a fine of Rs. 2,000/- each, in default,  to  further  undergo  RI
for 6 months  for  the  offence  punishable  under  Section  302.  A-12  was
convicted under Section 201 of IPC and sentenced to undergo RI for  4  years
along with a fine of Rs.1,000/-, in default, to further  undergo  RI  for  3
months.
(h)   Challenging the said judgment, A-1 to A-5 and  A-12  filed  an  appeal
being Criminal Appeal No. 1108 of 2000  before  the  Madurai  Bench  of  the
Madras High Court.  During the  pendency  of  the  appeal  before  the  High
Court, A-2 and A-12 died and appeal against them  stood  abated.   The  High
Court, by impugned judgment  dated  17.04.2008,  dismissed  the  appeal  and
confirmed their conviction and sentence.
(i)   Aggrieved by the said judgment, Sathya Narayanan (A-3) filed  Criminal
appeal No. 1539 of 2008 and Jayanthi (A-1), Chinna  Sathya  Narayanan  (A-4)
and Dinakaran (A-5) filed Criminal Appeal  No.  1573  of  2009  before  this
Court.
3)    Heard Mr.  R.  Balasubramanian,  learned  senior  counsel  for  A-3  –
appellant in Crl. A. No. 1539 of 2008, Mr. V. Giri, learned  senior  counsel
for A-1, A-4 and A-5 appellants in Crl. A.No. 1573  of  2009  and  Mr.  Guru
Krishnakumar, learned Additional Advocate General for  the  State  of  Tamil
Nadu.
4)    The case of the prosecution is that Jayanthi (A-1) and  Sriputhra  (A-
2) were staying at No.11, Govardhan Garden, K.K. Nagar leaving  the  company
of their spouses.  Sathya Narayananan (A-4) – son of A-1 and  Sadhana  (A-7)
– daughter of  A-2  were  also  living  with  them  at  the  above-mentioned
address.  Before coming  to  Govardhan  Garden,  A-1  was  living  with  her
husband  Rajendran  (PW-34)  at  Kalla  Street,  Trichy  along  with   their
children.  In the year 1987, after the death of  her  daughter-Sridevi,  she
completely devoted herself to spirituality which  resulted  into  separation
with her husband.   It is the case of the defence  that  as  the  place  was
very small, A-1 shifted to the above-mentioned address at K.K.  Nagar  along
with Sriputhra (A-2) for the purpose of continuing the spiritual works.
5)    Further, it is the case  of  the  prosecution  that  while  leading  a
spiritual life, A-1 came into contact with A-2 who used to visit the  Temple
and they developed illicit intimacy which resulted  into  desertion  of  the
husband and wife of A-1 and A-2 respectively whereas it is the claim of  the
defence that A-1 and A-2 deserted their  spouses  for  the  sole  object  of
attaining spirituality.  While  so,  on  08.04.2000  between  6  to  7  a.m.
Jayanthi (A-1) along with other accused persons assembled at the  back  side
of the Temple and beat Leelavathi causing grievous injuires to her  and  A-1
strangulated her neck which resulted into her death.

6)    On the side  of  the  prosecution,  46  witnesses  were  examined  and
documents (Exh. No. P-1 to Exh. No. P-48) and the material object Nos. 1  to
4 were marked.  It is not in dispute  that  all  the  prosecution  witnesses
except police officers turned hostile.  The evidence of PWs  1  and  2  were
disbelieved to  a  certain  extent.   The  trial  Judge,  based  on  various
circumstances, which clinchingly proved the prosecution case, convicted  the
appellants which was affirmed by the High Court.
Contentions:
7)    Mr. R. Balasubramanian, learned  senior  counsel  for  A-3,  submitted
that in the absence of any evidence in support of the prosecution and  delay
in lodging  of  the  complaint,  conviction  solely  on  the  basis  of  the
circumstantial evidence cannot be sustained.  In  any  event,  according  to
him, absolutely there is no discussion by the High Court about  the  alleged
role of A-3, hence, prayed for setting aside the conviction and sentence.

8)    Mr. V. Giri, learned senior counsel for A-1,  A-4  and  A-5  submitted
that the High Court having disbelieved  all  the  witnesses  ought  to  have
acquitted the appellants only on the basis of presumption of certain  facts.
 He further contended that the High Court has also grossly erred  in  partly
believing the evidence of PWs 1 &  2  for  the  purpose  of  convicting  the
appellants.  The conduct of the appellants, who brought the  doctor  to  the
place where the deceased was lying instead of taking her to the hospital  as
the same was essential for the safety and  the  physical  condition  of  the
deceased, cannot form any link in the chain of  circumstances.   He  further
submitted that the High Court ought not to have  convicted  the  appellants-
accused only on the basis of  the  doubts  arose  without  there  being  any
continuity of incriminating  circumstances.   According  to  him,  the  High
Court ought to  have  seen  that  to  convict  a  person  on  the  basis  of
circumstantial evidence, the circumstances must form a  complete  chain  and
all the circumstances should point out that the accused is the  only  person
who  committed  the  offence  and  further  exclude  the  entire  reasonable
hypothesis that the accused is innocent.  According to him, the High  Court,
having disbelieved the case of the prosecution to the extent that there  was
illicit relationship between  A-1  and  A-2  and  also  that  there  was  no
evidence that  A-2  was  having  illicit  relationship  with  the  deceased,
confirmed the conviction merely on the surmises.   He  further  pointed  out
that there was no eye witness to the  occurrence  and  the  case  is  purely
based  on  circumstantial  evidence.   Further,   learned   senior   counsel
contended that the date of occurrence was 08.04.2000  at  about  10.30  a.m.
and the FIR authored by PW-1 was lodged on 17.04.2000,  after  a  gap  of  9
days which itself is sufficient to reject the story of the prosecution.
9)    Mr. Guru Krishnakumar, learned Additional  Advocate  General  for  the
State of Tamil Nadu while supporting the decision of  the  trial  Court  and
the High Court  submitted  that  various  circumstances  relied  on  by  the
prosecution are acceptable and, in fact, both the courts  rightly  convicted
the appellants and prayed for confirmation of the same.

10)   It is not in dispute that the basis of conviction  is  solely  on  the
circumstances relied on by the prosecution.  In view  of  the  same,  it  is
relevant  to  understand  the  nature  and  various  aspects   relating   to
circumstantial evidence.
11)   In Hanumant vs. State of Madhya Pradesh, 1952  SCR  1091  the  nature,
character and essential proof required in a  criminal  case  that  rests  on
circumstantial evidence alone has been  laid  down.    This  case  has  been
uniformly followed and applied by this Court in  a  large  number  of  later
decisions up to this date.
12)   In Sharad Birdhichand Sarda vs. State of  Maharashtra,  (1984)  4  SCC
116, a Bench of   three  Judges  of  this  Court,  after  analyzing  various
aspects, laid down certain cardinal principles for conviction on  the  basis
of circumstantial evidence.  This Court laid down the  following  conditions
must be fulfilled before a case against an accused can be said to  be  fully
established:

        “153…..(1) the circumstances from which the conclusion of guilt  is
        to be drawn should be fully established. …. …
         (2) the facts so established should be consistent  only  with  the
        hypothesis of the guilt of the accused, that is to say, they should
        not be explainable on any other hypothesis except that the  accused
        is guilty,
        (3)  the  circumstances  should  be  of  a  conclusive  nature  and
        tendency,
        (4) they should exclude every possible hypothesis except the one to
        be proved, and
        (5) there must be a chain of evidence so complete as not  to  leave
        any reasonable  ground  for  the  conclusion  consistent  with  the
        innocence  of  the  accused  and  must  show  that  in  all   human
        probability the act must have been done by the accused.
        154. These five golden principles, if we may say so, constitute the
        panchsheel  of  the  proof  of  a  case  based  on   circumstantial
        evidence.”

13)   It is clear that even  in  the  absence  of  eye-witness,  if  various
circumstances relied on by the prosecution relating to the guilt  are  fully
established beyond doubt, the Court is free to award  conviction.   Further,
the chain of events must be complete in order to sustain the  conviction  on
the basis of circumstantial evidence.
Delay in filing the complaint:
14)   Both the learned senior  counsel  for  the  appellants  commented  the
delay in filing the  complaint  which,  according  to  them,  has  not  been
properly explained by  the  prosecution.   It  is  true  that  the  incident
occurred on 08.04.2000 between 6-7 a.m., and a formal complaint  was  lodged
by PW-1 on 17.04.2000, that is, after nine days of the  occurrence.   Though
the High Court has disbelieved the  version  of  PW-1  on  certain  aspects,
particularly, the claim of illegal intimacy with A-1 and  A-2  and  A-2  and
the deceased, other aspects of his evidence cannot be  rejected.   Since  it
was PW-1 who filed the complaint, in his evidence, he explained  the  reason
for the delay.  According to him, at the relevant time, he was  residing  at
15, Govardhan Garden, 9, K.K. Nagar for the last 15  years  along  with  his
wife S. Balambal (PW-2).  He stated that the Temple run by  A-1  is  located
behind his house.  He further deposed that he is well  acquainted  with  all
the accused persons because he along with his wife used to visit the  Temple
regularly. In his evidence, he  described  about  the  details  of  all  the
accused persons.  According to him, Leelavathi-  the  deceased  was  looking
after  the  Accounts  and  Postal  Transactions  of  the  Temple.   She  was
appointed as a Member in the Educational Trust of  the  temple.   Around  20
days before  the  incident,  when  PW-1  was  going  along  with  his  wife,
Leelavathi stopped them and apprised about the ill-treatment  meted  out  to
her by A-1 and A-2.  He further deposed that on 08.04.2000, about 6-7  a.m.,
when he was in his house, he heard the shoutings  of  Leelavathi  as  “don’t
beat, don’t beat” and also heard the voice of A-1 saying  “beat,  beat”  and
also saying “will you go out”.  According to PW-1, after  some  time,  there
was no noise.  In the same morning, at around 9 a.m.,  again  he  heard  the
cries of Leelavathi.  On hearing the same, he along  with  his  wife  (PW-2)
came out of their house and noticed that Leelavathi was running out  of  the
house.  They also heard the voice of A-2 asking others  “catch  her”  “catch
her”. They further noticed A-1 asking Sasikala (A-10) to  bring  a  wood  in
order to beat her.  A-10 handed it over to Dinakaran  (A-5)  who,  in  turn,
assaulted Leelavathi in the back side of  her  head  using  that  wood.   On
seeing their presence, the accused persons dragged  her  inside  the  house.
After two days, when he went to the nearby chicken shop, the  owner  of  the
shop told him that Leelavathi was beaten to death and she was burnt  in  the
burial ground.  According to him, the chicken shop owner came  to  know  all
these details through Karuppaiah (A-12).  After enquiring  about  the  death
from several persons, PW-1 deposed that he came to know about the truth  and
then he gave a complaint to the Police on 17.04.2000 which Exh.  P/1.   PW-1
gave the same reasoning in regard  to  an  answer  to  a  specific  question
relating to delay in filing of the  complaint  for  the  incident  that  had
happened on 08.04.2000.  It is pertinent to mention here that the very  same
facts mentioned above have been narrated by PW-2  in  her  deposition  dated
16.10.2000.  In cross-examination, he denied the suggestion  that  A-2,  A-5
and A-9 were behind the termination of his and his wife’s job  and  that  he
made a false complaint against them.  As mentioned earlier, though the  High
Court disbelieved his version as to the illegal intimacy between A-1 and  A-
2 and A-2 and the deceased, the reasons furnished by him for  the  delay  in
lodging the complaint after 9 days are acceptable.  Inasmuch as  the  entire
episode has taken place within the Ashram, PW-1 who worked in the  Ashram  9
months ago along with his wife and was  residing  at  the  backside  of  the
Temple, after getting full information about the incident, made a  complaint
to the police.   In  such  circumstance,  the  prosecution  case  cannot  be
rejected merely on the ground of delay  since  the  complainant  (PW-1)  has
reasonably explained the reasons for the delay.  Accordingly, we reject  the
argument of the learned senior counsel for the appellants.
Reliance on the hostile witness:
15)   It is the contention of Mr. Giri, learned senior counsel that in  view
of the fact that all the prosecution witnesses turned hostile and  even  the
evidence of PWs 1 and 2 are not acceptable in toto, the conviction based  on
certain statements cannot be accepted.  In this regard, it  is  relevant  to
refer a decision of this Court  in  Mrinal  Das  and  Others  vs.  State  of
Tripura, (2011) 9 SCC 479.  In  the  said  decision,  the  main  prosecution
witnesses, viz., PWs 2, 9, 10 and 12 were  declared  as  hostile  witnesses.
While reiterating that corroborated part  of  evidence  of  hostile  witness
regarding commission of offence is admissible, this Court held:
      “67. It is settled law that corroborated part of evidence  of  hostile
      witness regarding commission of offence is admissible. The  fact  that
      the witness was  declared  hostile  at  the  instance  of  the  Public
      Prosecutor and he was allowed to cross-examine the  witness  furnishes
      no justification for rejecting en bloc the evidence  of  the  witness.
      However, the court has to be very careful, as prima facie,  a  witness
      who makes different statements at different times, has no  regard  for
      the truth. His evidence has to be read and considered as a whole  with
      a view to find out whether any weight should be attached  to  it.  The
      court should be slow to act  on  the  testimony  of  such  a  witness,
      normally, it should  look  for  corroboration  with  other  witnesses.
      Merely because a witness deviates from his statement made in the  FIR,
      his evidence cannot be held to be totally unreliable. To make it clear
      that evidence of hostile witness can be relied upon at least up to the
      extent, he supported the case of the prosecution. The  evidence  of  a
      person does not become effaced from the record merely because  he  has
      turned hostile and his deposition must be examined more cautiously  to
      find out  as  to  what  extent  he  has  supported  the  case  of  the
      prosecution.”

16)   We reiterate that merely because the witness was declared as  hostile,
there is no need to reject his  evidence  in  toto.   In  other  words,  the
evidence of hostile witness can be relied upon at least to  the  extent,  it
supported the case of the  prosecution.   In  view  of  the  same,  reliance
placed on certain statements made by hostile witnesses by  the  trial  Court
and the High Court are acceptable.  Now, let us consider hereunder  how  far
those statements supported the case of the prosecution.
Evidence of PWs 1 and 2:
17)   We have already referred to the evidence of PW-1 at  length  and  PW-2
who is none else than wife of PW-1.  Admittedly, they were  residing  behind
the Temple and it was PW-1 who made a complaint (Exh.  P/1)  to  the  police
after enquiring about the incident from various  persons/sources.   Balambal
(PW-2) also explained the case of the prosecution similar to as narrated  by
PW-1.  She denied the suggestion that she came to  know  the  details  about
the death of Leelavathi on 10.04.2000.  She also denied the suggestion  that
even though she knew that Leelavathi had a  natural  death  because  of  the
chest pain and her husband in order to grab money from the  accused  persons
made a false complaint to the police.  Though both PWs 1 and 2 are  not  eye
witnesses to the occurrence, in view of the fact that  they  worked  in  the
Ashram for 9 months prior to the  incident  and  were  residing  behind  the
Temple, PW-1 lodged a complaint Ext.  P/1  about  the  death  of  Leelavathi
after getting all the details and  the  circumstances  highlighted  by  them
support the case of the prosecution.
Deceased was a Member of the Trust:
18)   It is not in dispute that Leelavathi (deceased) was originally  taking
tuition for the children of A-1 and A-2, who were  residing  in  the  Ashram
after leaving their spouses.  It is also not disputed  that  Leelavathi  has
also became a Member of the  Trust  of  the  Ashram  and  she  was  actually
staying in the Ashram.  Through  the  evidence  of  Subramanian  (PW-40),  a
xerox copy of the Trust Deed had been marked as Exh. P-27.   On  perusal  of
the same, it can be seen that Jayanthi (A-1) had established a Trust in  the
name of Sridevi Sewa Trust and Sriputhra (A-2), Peria Sathya Narayanan,  (A-
3), Chinna Sathya Narayanan (A-4), Sadhana (A-5) and  Leelavathi  (deceased)
were appointed as Trustees.  These aspects have been stated by  A-1  in  her
statement recorded under Section 313 of  the  Code  of  Criminal  Procedure,
1973 (in short ‘the Code’).  Though there is no acceptable  evidence  as  to
the fact that an attempt was made for her removal from the Trust,  the  fact
remains that Leelavathi (deceased) was a Member of the said Trust.
Death occurred in the Ashram:
19)   It is the definite case of the prosecution that Leelavathi  (deceased)
was a Trustee in the above said Trust, looking after  the  accounts  of  the
Ashram and was staying in the  Ashram.   Selvi  Mythili  (PW-35)  and  Thiru
Ananda  Padhmanaban  (PW-36),   sister   and   brother   of   the   deceased
respectively, had deposed in their evidence that Leelavathi was  staying  in
the Ashram itself leaving them and her parents and that she had  given  some
assignment there.   Both of them  deposed  that  since  then  she  became  a
Trustee, there was a dispute with regard  to  the  management  of  the  said
Trust.  The very same fact has also been stated in the evidence of PWs  1  &
2 that about 20 days prior to  the  occurrence,  Leelavathi  (deceased)  was
subjected to torture and harassment with regard  to  her  removal  from  the
said  Trust.   The  evidence  of  Dr.  Thirugnanasundaram  (PW-6)  and   Dr.
Sathyavenkatesh (PW-7) –the local doctors are also relevant as to the  death
of the deceased which occurred in the Ashram.  PW-6, in  his  evidence,  had
deposed that on 08.04.2000, at about 11 a.m., he received a phone call  from
a person from Sridevi Temple stating that one lady has  become  fainted  and
requested him to see her in the Ashram on which he replied in  the  negative
and advised the caller  to  take  her  to  his  Clinic.   After  5  minutes,
Sriputhra (A-2) came to his Clinic and again requested  him  to  attend  the
patient in the Ashram but he refused to accede to  his  request.   From  the
above, it is clear that PW-6 was requested to attend a lady patient  at  the
Ashram.
20)   Likewise, PW-7 was requested to attend a  lady  lying  unconscious  in
the Ashram.  In his evidence, he deposed that on 08.04.2000, at about  11.30
a.m. Sriputhra (A-2) came to  his  Clinic  and  stated  that  one  lady  was
fainted in the Ashram and requested him to attend her in the  Ashram.   PW-7
went to the Temple in order to see her in the car of A-2 and found one  lady
lying in the house adjacent to the said  Temple  beneath  the  sofa  in  the
front hall.  He further explained that after checking the  pulse  and  heart
beat, he declared her ‘dead’.
21)   From the evidence of Doctors and the statement of  A-2  made  to  them
regarding the condition of the lady, it is clear that the death occurred  in
the Ashram.
Failure of accused  to  give  satisfactory  explanation  to  an  incriminate
circumstance which was within their special knowledge

22)   Section 106 of the Indian Evidence Act, 1872 reads as under:
      “106. Burden of proving fact especially within  knowledge.-  When  any
      fact is especially within the knowledge of any person, the  burden  of
      proving that fact is upon him.


                             Illustrations
      a) When a person does an act with  some  intention  other  than  that
         which the character and circumstances  of  the  act  suggest,  the
         burden of proving that intention is upon him.
      b) A is charged with traveling on a railway without  a  ticket.   The
         burden of proving that he had a ticket is on him.”

The applicability of the above provision has been explained  by  this  Court
in State of Rajasthan vs. Kashi Ram, (2006) 12 SCC 254 which held as under:
        “23. ……………………The principle  is  well  settled.  The  provisions  of
      Section 106 of the Evidence Act itself are unambiguous  and  categoric
      in laying down that when any fact is especially within  the  knowledge
      of a person, the burden of proving that fact is upon him. Thus,  if  a
      person is last seen with the deceased, he must offer an explanation as
      to how and when he parted company.  He  must  furnish  an  explanation
      which appears to the court to be probable and satisfactory. If he does
      so he must be held to have discharged his burden. If he fails to offer
      an explanation on the basis of facts within his special knowledge,  he
      fails to discharge the burden cast upon him  by  Section  106  of  the
      Evidence Act. In a case resting  on  circumstantial  evidence  if  the
      accused fails to offer a reasonable explanation in  discharge  of  the
      burden placed on him, that itself provides an additional link  in  the
      chain of circumstances proved against him. Section 106 does not  shift
      the burden of proof in a criminal trial,  which  is  always  upon  the
      prosecution. It lays down the rule that  when  the  accused  does  not
      throw any light upon facts which are specially  within  his  knowledge
      and which could not support any theory or hypothesis  compatible  with
      his innocence, the court  can  consider  his  failure  to  adduce  any
      explanation, as an additional link  which  completes  the  chain.  The
      principle has been succinctly stated in Naina Mohd., Re. AIR 1960  Mad
      218.


        24. There is considerable force in the argument of counsel for  the
      State that in the facts of this case as well it should  be  held  that
      the respondent having been seen last with the deceased, the burden was
      upon him to prove what happened thereafter,  since  those  facts  were
      within his special knowledge. Since, the respondent failed to  do  so,
      it must be held that he failed to discharge the burden cast  upon  him
      by Section 106 of the  Evidence  Act.  This  circumstance,  therefore,
      provides the missing link in the chain of  circumstances  which  prove
      his guilt beyond reasonable doubt.”


23)   The appellants-accused having been seen last with  the  deceased,  the
burden of proof rests upon them to prove what had happened thereafter  since
those facts were within their special knowledge.   In  the  absence  of  any
explanation, it must be held that they failed to discharge the  burden  cast
upon them by Section 106 of the  Indian  Evidence  Act,  1872.   Admittedly,
none of the appellants explained what had happened to the deceased  even  in
their statements under Section 313 of the Code.
Distress cry of the deceased
24)   We have already stated that at the relevant time, PWs 1 & 2,  who  are
husband and wife, were residing at the back side of the Ashram.  It was  PW-
1, who after thorough enquiry, made a complaint to the police on  17.04.2000
(Exh. P/1).   In  the  complaint,  PW-1  has  specifically  stated  that  on
08.04.2000, around 6-7 a.m., while  he  was  in  his  house,  he  heard  the
shouting of Leelavathi saying “don’t beat, don’t beat” and  also  heard  A-1
saying “beat, beat”.  In Exh. P/1, PW-1 also stated that at that  time,  A-2
shouted by saying “catch her” “catch her”.  All these events,  particularly,
the distress cry of the deceased was heard by  PW-1  and  he  mentioned  the
same in his complaint (Exh. P/1).  It is also a relevant circumstance  which
supports the case of the prosecution.
Commotion in the Ashram
25)   Mohan (PW-4), whose house is situated next to Sridevi  Temple  in  the
eastern side stated that he is well acquainted with  A-1  to  A-4  and  A-7.
According to him, in April 2000, when he was studying in the  top  floor  of
his house, he heard a sound coming from Sridevi Temple.   Though  he  turned
hostile, in his chief examination, he stated that he heard  a  commotion  in
the Ashram at the relevant time and the date  of  the  occurrence  which  is
also another circumstance which supports the case of the prosecution.


The statements of Doctors - PW-6 and PW-7
26)   Dr. Thirugnanasundaram (PW-6), deposed  that  on  08.04.2000,  between
11.00 and 11.15 a.m., he received a phone call from Sridevi  Temple  stating
that one woman had fallen down on account of dizziness and requested him  to
come and see her.  He replied in the negative and advised them to  take  her
to his Clinic.  There was no response  from  the  other  end.    After  5-10
minutes, A-2 came to his Clinic in a  car  and  requested  him  to  see  the
patient in the Ashram but he did not  accede  to  his  request.  He  further
deposed that the distance between his Clinic and Sridevi Temple might be  of
3 furlong and he also admitted that he knows A-1 and A-2.
27)   Dr. Sathyavenkatesh, who was  examined  as  (PW-7),  deposed  that  on
08.04.2000, around 11.30 a.m., A-2 came to his Clinic and  informed  that  a
woman had become unconscious and requested him to come  to  the  Ashram  for
treatment and on his request, he went to see her in  his  car.   He  further
deposed that when he reached there, a woman was  found  lying  in  the  main
hall beneath the sofa.  He checked her pulse and heart beat and  found  that
the woman was dead.  He further stated that on  the  same  day,  after  8.00
p.m., A-2 came to his Clinic and  sought  for  the  Death  Certificate.   He
informed him that since he had not given any treatment to her, he could  not
issue the same.  Since A-2 compelled him to issue such  Certificate  on  the
ground that the deceased was a Member of  the  Trust  and  the  Auditor  has
sought the same, he issued a Death  Certificate.   The  Xerox  copy  of  the
Death Certificate is marked as Exh. P-2.  He also stated  that  he  had  not
seen any injury on the body.  He fairly admitted  that  without  doing  post
mortem, it would  not  be  possible  to  mention  the  cause  of  death  and
certificate cannot be issued.  He reiterated that only on the insistence  of
A-2, he issued a Death Certificate.
28)   The analysis of the evidence of PWs 6 and 7 shows that in the  morning
of 08.04.2000, both the Doctors, initially PW-6, was requested to  attend  a
lady lying unconscious in the Ashram and when PW-6 declined, PW-7 was  taken
to the Ashram.  It is further clear that on preliminary examination  by  PW-
7, the woman was found dead.  The statements of PWs 6 and 7 prove  that  the
deceased died in the Ashram on 08.04.2000.  It is also clear that though PW-
7 has stated that he did not notice any injury on the body of the  deceased,
he admitted that the whole body was covered with a blue  colour  saree.   He
issued the Death Certificate mentioning that the deceased  would  have  died
due to heart attack without any examination, particularly, when the  patient
did not come to him at any point of time that too at the insistence of  A-2,
there is no need to give importance to the same.  However, the  evidence  of
PWs 6 and 7 prove the death of the  deceased  occurred  on  the  morning  of
08.04.2000 in the Ashram which is also  one  of  the  reliable  circumstance
which supports the case of the prosecution.  It is also  relevant  to  point
out that the doctor, PW-7, admitted that when  he  visited  the  Ashram,  he
found a body lying beneath the sofa.  It also creates a suspicion about  the
cause of her death.
Sudha (PW-8) servant maid was told not to report for work in the afternoon:

29)   Though Sudha (PW-8) turned hostile, in her deposition, it  was  stated
that she was working in Sridevi Temple from January to March, 2000  and  was
distributing Saffron powder, turmeric and holy ashes to the devotees of  the
Temple.  She further deposed that in April, 2000, when she went for work  in
the morning and was returning to her house for lunch at about 1.00 p.m.,  A-
2 asked her not to come  for  work  in  the  afternoon,  therefore,  on  his
instruction, she did not go for work in the afternoon.  The fact that  PW-8,
who used to help the devotees all the time was asked not to  attend  in  the
afternoon in the month of April, 2000 is also one of the circumstance  which
supports the prosecution case.
PWs 35 and 36 brother and sister of the deceased  were  not  informed  about
the death of the deceased:

30)    Though  PWs  35  and  36,  brother  and  sister   of   the   deceased
respectively, were residing in the same town were  not  informed  about  the
death of Leelavathi by any person in the Ashram, particularly, A-1 and  A-2.
 As a matter of fact, PWs 15 and 16 (vettiyan) who were attending  the  work
of cremating the dead bodies,  before  commencement  of  their  work,  asked
about the relatives of the deceased.   A-2 informed them that  the  deceased
is an orphan and had no relatives. As rightly observed by both  the  Courts,
it would  indicate  that  the  appellants  were  not  only  responsible  for
committing murder but also screened the evidence.  The statements of PWs  15
and 16, persons in charge of cremation of dead bodies, answers given by  A-2
about their query relating to the relatives of the deceased and their  reply
that the deceased was an orphan are relevant circumstances which  prove  the
case of the prosecution.
Motive:
31)    In  the  case  of  circumstantial  evidence,  motive   also   assumes
significance for the reason that the absence of motive would put  the  court
on its guard and cause it to scrutinize each piece of  evidence  closely  in
order to ensure that suspicion, omission  or  conjecture  do  not  take  the
place of proof.  In the case on hand, the prosecution has demonstrated  that
initially, the deceased entered the Ashram in order to assist  the  devotees
and subsequently became  one  of  the  Trustees  of  the  Trust  and  slowly
developed grudge with the appellants.  PWs 35 and 36, sister and brother  of
the deceased Leelavathi deposed that since then she became a Trustee,  there
was a dispute with regard to the Management of the said Trust.
32)   From the above materials, we noted the following circumstances  relied
on by the prosecution, accepted by the trial Court and the High Court :
(i)   The deceased was a member of the Trust.
(ii)  On 08.04.2000, the date of incident, there was some kind of  commotion
      in the Ashram.
(iii) The death occurred in the Ashram.
(iv)  In the complaint to police (Exh. P-1), it was stated  that  there  was
      distress cry of the deceased.
(v)   PW-4 heard a commotion in the Ashram.
(vi)   A-2  approached  PW-6  (Doctor)  stating  that  a  lady   was   lying
      unconscious.
(vii)  PW-7  (another  Doctor)  was  requested  to  attend  a   lady   lying
      unconscious.
(viii)      The accused failed to take the deceased to the  hospital  rather
      they preferred to treat her in the Ashram  itself  with  the  help  of
      known doctors (PWs 6 & 7).
(ix)  PW-7 visited the Ashram and found a body lying beneath the Sofa.
(x)   The dead body was covered with a Saree and, therefore, PW-7 could  not
      have seen any external injury.
(xi)  The accused have chosen not to conduct post  mortem  hence,  the  real
      cause of the death was completely suppressed.
(xii) PW-8 was told not to report for work in the afternoon.
(xiii)      The accused have failed to inform any of the  relatives  of  the
      deceased (PWs 35 & 36) though they lived in the same town.
(xiv) A-2 visited PW-15’s place for arranging for the cremation.
(xv)  PWs 15 & 16 asked about the availability of relatives and the  accused
      answered in the negative.
(xvi)  PWs 15 to  18  identified  A-3  as  being  present  at  the  time  of
      cremation.
(xvii) The time of cremation of  the  deceased  was  late  in  the  evening,
      though the death occurred in the forenoon itself.
(xviii)The accused had voluntarily lied to the persons  who  were  cremating
      the body (vettiyan) that  the  deceased  was  an  orphan  and  has  no
      relatives.
Conclusion:
33)   The above analysis clearly  shows  that  though  there  is  no  direct
evidence about the cause of death, various circumstances  projected  by  the
prosecution complete  the  chain  of  link  and  established  that,  in  all
probability, the act must  have  been  done  by  the  appellants.   All  the
circumstances have been clearly discussed by the trial Court and it  rightly
convicted  and  awarded  appropriate  sentence.   The  High  Court,  as   an
appellate Court, once again marshaled  all  the  materials  leading  to  the
death of the deceased Leelavathi and confirmed the same.   We  fully  concur
with  the  said  conclusion.   Consequently,  the  appeals  fail   and   are
accordingly dismissed.










                                  ………….…………………………J.


                                       (P. SATHASIVAM)














                                    ………….…………………………J.


                                      (RANJAN GOGOI)
NEW DELHI;
NOVEMBER 2, 2012.

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