The above-captioned appeal has been preferred by the appellant/accused in S.C. No. 845 of 2020 on the file of the Additional Sessions Judge-II, Kollam. In the said case, the appellant was charged for having committed offences punishable under Sections 302, 364, 404, 201 and 297 of the Indian Penal Code.
2. By the impugned judgment, the appellant was convicted and sentenced to undergo:
a) imprisonment for life and to pay a fine of ₹1,00,000/- for the offence punishable under Section 302 IPC, with a default sentence to undergo rigorous imprisonment for a further period of 1 year;
b) rigorous imprisonment for seven years and to pay a fine of ₹50,000/- for the offence under Section 364 IPC, with a default sentence to undergo rigorous imprisonment for a further period of 3 months;
c) rigorous imprisonment for three years and a fine of ₹50,000/- for the offence under Section 404 IPC, with a default sentence to undergo rigorous imprisonment for a further period of 3 months;
c) rigorous imprisonment for three years and a fine of ₹50,000/- for the offence under Section 201 IPC, with a default sentence to undergo rigorous imprisonment for a further period of 3 months; and
e) rigorous imprisonment for one year for the offence punishable under Section 297 IPC.
II. The Prosecution Case:
3. The prosecution case, as borne out from the records, can be summarized as follows:
a) The deceased, Sujithra Pillai, was employed as a tutor and Administrative Officer at “Le Boutique Academy”, Pallimukku, Kollam. She resided with her parents, Vijayalekshmi (PW1) and CW2. Anupam Das @ Kannan (PW3) is her cousin and resides nearby. Jayakumari (PW2) is the paternal aunt of the deceased and the mother of PW3. Anilkumar (PW5) is a neighbour and family friend. The appellant was married to Aarathi (CW5) and had an infant son. Chithra Pillai (PW4) is the mother of Aarathi.
b) The deceased had married twice and both marriages had ended in divorce. The appellant was working as a music instructor. Though married to Aarathi (CW5) and having an infant son, he developed a relationship with the deceased and kept in touch with her through internet messaging and phone calls. He also received money from her on several occasions. The deceased wished to have a child, which fact she had confided to him.
c) As per the charge, on 17.03.2020 at about 5.00 p.m., the appellant abducted Sujithra Pillai from the margin of the Kollam–Kavanadu Bypass Road at Kallumthazham in his car and took her to a building known as "Vignesh House", situated near Sreeragam Nagar Junction, Manali, in Palakkad Village. The appellant and the deceased remained there until 20.03.2020. The projected case of the prosecution is that on 20.03.2020, at about 6.30 p.m., while the deceased was lying on a bed, the appellant allegedly assaulted her by repeatedly striking her head against the floor, exerting blunt force on her chest with his knees and fracturing her rib. It is further alleged that he strangulated her using the cable of an emergency lamp and caused her death.
d) In the charge it is further alleged that, after the murder, the appellantdishonestly misappropriated the gold ornaments worn by the deceased by removing her chain, bangles and ring. Thereafter, he mutilated the corpse by amputating both legs below the knees and both feet, and buried the body in a marshy area outside the western compound wall of Vignesh House. He then attempted to destroy the evidence by pouring petrol over the body and setting it on fire. It is further alleged that, knowing that he had committed an offence punishable with death and with the intention of screening himself from legal punishment, the appellant caused the disappearance of evidence by switching off the mobile phone of the deceased. The phone was later switched on near Mannuthy, Thrissur, and both the handset and the SIM card were destroyed. He is also alleged to have concealed the blood-stained bed sheet and covered the burial site with cement blocks and stones. The appellant is stated to have repeatedly washed and mopped the floor of the house to remove blood stains. He is also stated to have burnt the personal belongings of the deceased including her clothes, vanity bag, spectacles, the emergency lamp cable and the clothes used for mopping and disposed of her make-up articles near Karikarapully. The prosecution further alleges that the appellant discarded the petrol can near a canal at Thottupalam Junction, concealed the spade used for digging behind bushes near an Anganwadi close to Vignesh House, and threw the knife and chopper allegedly used in the commission of the offence into a marshy area. On these allegations, the appellant was charged with offences punishable under Sections 302, 364, 404, 201 and 297 of the IPC.
4. The prosecution case further reveals that the deceased had informed her mother that she was proceeding to Ernakulam to attend a training programme and left Kollam on 17.03.2020. On 20.03.2020, PW1 contacted Sujithra at about 9.30 a.m., after which there was no further communication. On 21.03.2020, when PW1 wanted to lodge a complaint before the Police, the Janata Curfew was imposed in the State to prevent the spread of the COVID Pandemic. On the following day, she approached the police, who requested her to wait for one more day. Accordingly, on 23.03.2020, PW32, the Sub Inspector of Police, Kottiyam Police Station, recorded the statement of PW1, and Crime No. 259 of 2020 was registered under Section 57 of the Kerala Police Act as a "man missing" case. On 24.03.2020, the nationwide COVID-19 lockdown came into force, which affected the progress of the investigation.
5. PW32 continued the investigation from 23.03.2020 to 27.04.2020. During this period, he collected the SIM details, Call Detail Records (CDRs) and tower location details of the deceased. The investigation revealed that the mobile phone of the deceased last functioned at Manali, Palakkad. The CDRs also disclosed frequent
communication between the appellant and the deceased. The tower dump analysis indicated that both had travelled from Kollam to Manali on 17.03.2020. On perusing the account details of the deceased at the Kannanallur Branch of the State Bank of India, revealed that there were money transfers between the appellant and the deceased. When the appellant was called for interrogation, he furnished a statement (Exhibit P72).
6. The investigation was handed over to the Kollam City Crime Branch on 27.04.2020 and B. Gopakumar (PW42), Assistant Commissioner of Police, Kollam City Crime Branch took charge of the same. On 28.04.2020, the appellant was arrested as evidenced by Ext. P106 series. According to the prosecution, the arrest followed an examination of his Google search history and Facebook account. Section
302 of the IPC was thereafter incorporated through Ext. P107 report, and the appellant's mobile phone (MO31) was seized under Ext. P108 mahazar.
7. On 29.04.2020, acting upon the disclosure statement allegedly made by the appellant, the investigating team proceeded to the marshy land situated along the western boundary of House No. 96/12 and exhumed the dead body under Ext. P25 mahazar. The inquest was conducted by PW17, and PW19 performed the post-mortem examination on the same day at about 3.00 p.m. Pursuant to further disclosure statements allegedly made by the appellant, MO15 emergency lamp, MO16 spectacle frame, a bed sheet and other articles were recovered under Exts. P23, P24 and P27 mahazars. Scientific evidence was also collected under Ext. P109 mahazar. Subsequently, on 04.05.2020, police custody of the appellant was obtained. On 05.05.2020, based on his alleged disclosure statement, MO18 spade was recovered under Ext. P31 mahazar. On the same day, MOs 7 to 9, being the gold ornaments allegedly worn by the deceased, were recovered from a hole in a compound wall as per Ext.P32 mahazar. On 09.05.2020, the partially burnt emergency lamp cable (MO21) and MOs 1 to 6, comprising the deceased's make-up articles, were recovered near Saradapeedam Temple, Chandranagar, under Ext. P35 mahazar. On the same day, PW34 searched the appellant's residence at Changanoth, Kozhikode, and seized a laptop, three pen drives, three memory cards and three mobile phones under Ext. P75 mahazar. On 07.05.2020, PW31 reactivated the Gmail, Facebook and WhatsApp accounts of the deceased using a duplicate SIM card and extracted Exts. P68 series and P69 data. PW15 also collected the blood samples from the parents of the deceased. After completion of the investigation, the final report was laid before the Judicial First Class Magistrate-II, Kollam.
III. The trial and the judgment under Appeal:
8. Committal proceedings were initiated by the learned Magistrate and the case was committed to the Court of Session. The case was then made over to the Additional Sessions Court-II, Kollam. When the charges were read over, the appellant pleaded not guilty and claimed to be tried. On the side of the prosecution, 42 witnesses were examined as PW1 to PW42 and through them Exts.P1 to P139 were exhibited and marked. MOs 1 to 31 were produced and identified. On the side of the defence, DW1 was examined. Ext.C1 and C2 series were marked as court exhibits.
9. After the prosecution evidence was closed, the incriminating circumstances appearing against the appellant were put to him under Section 313 of the Code of Criminal Procedure. He denied all the incriminating circumstances. He also filed a detailed statement wherein it was stated as follows :
● He stated that he was in a close relationship with the deceased and that none of her relatives were aware of the said relationship. According to him, he was working as a music teacher and had a strong desire to purchase a piano. However, as he did not have sufficient financial means to purchase the instrument, the deceased, on coming to know of his desire, advanced him a sum of ₹2,50,000 as a loan. The appellant stated that, when he was summoned by the police attached to the Kottiyam Police Station in connection with the disappearance of the deceased, he disclosed to them that he had been maintaining a close relationship with her and that he had borrowed ₹2,50,000 from her. According to him, once this information became known, the relatives of the deceased took the stand that it was he who had caused harm to her. The appellant specifically denied that he had taken the deceased, Sujithra Pillai, in his car to Palakkad on 17.03.2020 or that she had stayed at his house. He asserted that she had never travelled with him in his car on that day. According to him, the statements of the prosecution witnesses to the effect that the deceased travelled with him in his car, as well as the alleged extra judicial confessions attributed to him before the relatives of the deceased, are entirely false, fabricated, and concocted.
● He further stated that on 02.04.2020, he met the mother of the deceased and her relatives within the precincts of the Kottiyam Police Station. On that occasion, he informed them that the deceased had telephoned him and had advanced him a sum of ₹2,50,000 as a loan. He also stated that, when the deceased had called him on one occasion, he was unable to speak to her as he was inside a shop.
● The appellant asserted that whenever he was summoned by the police, he appeared before them and furnished truthful statements. According to him, the police obtained his signatures on blank sheets of paper after threatening that, if he refused to sign, he would be implicated as an accused in the case. He further stated that the officers attached to the Kottiyam Police Station had visited his residence at Palakkad on several occasions and conducted extensive searches of the premises but were unable to recover anything incriminating. According to him, on 18.04.2020, the police again came to his house at Palakkad and took him to the Kottiyam Police Station. He alleged that the members of his wife's family were summoned to the police station and they were told that the appellant should be made to stay compulsorily at their residence. He further stated that he was directed not to leave Kollam and return to Palakkad. The appellant also stated that the police had taken possession of his mobile phone. According to him, the prosecution case that the mobile phone was seized only on 29.04.2020 is false. He alleged that the contents of the mobile phone were subsequently edited and manipulated by the police with the assistance of technical experts. He categorically denied all the recoveries allegedly effected at his instance and asserted that every one of the material objects claimed to have been recovered pursuant to his disclosure statements had been fabricated and manipulated by the police.
● The appellant further stated that the cash recovered by the police from his house represented the amount of ₹2,50,000 advanced to him by the deceased as a loan and that he had kept the money in his house with the intention of returning it to her. According to him, he had never utilised any part of the said amount. Referring to the message allegedly sent by him to PW-3, Kannan, on 12.04.2020, the appellant stated that he had sent the message because he felt guilty about maintaining a close relationship with the deceased, who was related to PW-3, and also because he had borrowed ₹2,50,000 from her. He maintained that, even thereafter, he continued to have a cordial relationship with PW-3. The appellant stated that PW-6 was his neighbour. According to him, the police had threatened PW-6 that he too would be implicated in the case, and it was only on account of such intimidation that PW-6 gave a false statement to the police. The appellant further stated that he had undergone surgeries on his hand and leg and, on account of those physical ailments, he was unable to perform strenuous physical work or undertake activities requiring substantial use of his limbs. According to him, despite these limitations, he used to go to a gymnasium only because his doctor had advised him to perform light exercises as part of his rehabilitation. Finally, the appellant reiterated that he had maintained a close relationship with the deceased and that they frequently communicated over the telephone. According to him, the deceased often behaved in a strange manner and used to speak to him about her mental issues. He further stated that he had realised that the deceased was suffering from both mental and physical problems. He also asserted that the deceased had several other friends. The appellant denied having committed any of the offences alleged by the prosecution and maintained that he had been falsely implicated in the case.”
10. Since the learned Sessions Judge found that there was no scope for an acquittal under Section 232 Cr.P.C, he was called upon to enter his defence. The defence examined DW1, a neighbour of the appellant at Palakkad.
11. The learned Sessions Judge observed that there was no direct eyewitness to the occurrence. Applying the principles laid down in Padala Veera Reddy v. State of Andhra Pradesh ([(1989) Supp (2) SCC 706]) and State of Rajasthan v. Kashi Ram ( [AIR 2007 SC 144]) , the learned Judge framed eleven points for determination and concluded that the prosecution had successfully established eighteen incriminating circumstances which formed a complete chain leading only to the hypothesis of the appellant's guilt.
12. The trial court relied upon Ext. P92 DNA report together with the testimonies of PWs 2, 3 and 5 to conclude that the mutilated body exhumed from the marshy land outside the western compound wall of “Vignesh House” was that of Sujithra Pillai. On the strength of Ext. P37 post-mortem certificate and the scientific evidence, the court held that the deceased died a homicidal death due to ligature strangulation and that the body was subsequently mutilated and partially burnt.
13. The court further relied upon the oral evidence, Ext.P94 series WhatsApp chats and Ext. P68 series Facebook Messenger chats to conclude that an illicit relationship existed between the appellant and the deceased. On the basis of Exts. P20, being the bank account records of the deceased, the court found that the appellant had received approximately Rs.3,00,000/- from the deceased through bank transfers.
14. The learned Sessions Judge further relied on the evidence of PW8 and PW41 to conclude that the appellant and the deceased had secretly travelled together from Kollam to Palakkad on 17.03.2020. The court also relied upon Ext. P94 series chats and the oral evidence to infer that the deceased desired to have a child with the appellant. Considerable reliance was also placed on the appellant's internet search history relating to artificial insemination and a news report concerning a religious guru who had murdered his wife.
15. The trial court further relied upon Ext. P85 series Call Detail Records, Ext. P91 tower dump analysis and Ext. P103 CDR analysis to hold that the deceased's mobile phone last functioned at Manali, Palakkad, on 20.03.2020 and thereafter became inactive. Relying on the evidence of PW4 and PW6, together with Ext. P66 WhatsApp chats exchanged between the appellant and his wife, Aarathi, the court inferred that the appellant feared the consequences of his extramarital relationship on his marriage and treated the same as the motive for the murder. The evidence of PW8 was relied upon to invoke the "last seen together" theory. The court also relied upon the alleged disclosure statement [Ext. P25(a)], pursuant to which the dead body was recovered, as well as the recoveries of the petrol can, the gold ornaments and the spade, to hold that the prosecution had established the appellant's guilt. Finally, the court treated the appellant's failure to discharge the burden under Section 106 of the Indian Evidence Act as an additional incriminating circumstance.
IV. The rival contentions:
16. Assailing the conviction and sentence, Sri. Ranjith Narayan, the learned counsel appearing for the appellant, contended that the prosecution case is wholly unbelievable. It was argued that the learned Sessions Judge gravely erred in placing reliance upon the testimony of PW8, the autorickshaw driver, who allegedly saw the appellant and the deceased together on 17.03.2020. The failure of the investigating agency to conduct a Test Identification Parade, despite PW8 claiming to identify both the appellant and MO14 car nearly two months after the incident, according to the learned counsel, seriously undermines the credibility of his testimony. It was further contended that the prosecution has failed to establish any credible motive for the alleged offence. According to the learned counsel, in a case resting entirely on circumstantial evidence, failure to prove motive is not a mere weakness but a substantial lacuna in the prosecution case.
17. The learned counsel also submitted that the electronic evidence relied upon by the prosecution was manipulated during the course of investigation. According to him, the appellant's mobile phone had been seized by Kottiyam Police on 18.04.2020, and the WhatsApp messages, Facebook Messenger chats and other digital data extracted thereafter were tampered with while the device remained in police custody. It was argued that the prosecution seeks to establish the alleged relationship, motive, planning and internet search history solely on the basis of such manipulated electronic records.
18. It was next contended that the Call Detail Records, tower location data and GPRS analysis do not establish that the appellant and the deceased travelled together. At the highest, the evidence merely indicates that the two mobile phones moved in the same direction, which does not justify the inference that the appellant and the deceased were travelling together.
19. The learned counsel further challenged the admissibility of the recoveries purportedly made under Section 27 of the Indian Evidence Act, 1872. According to him, the complete statement made by the appellant while in police custody was not produced before the Court. Instead, only selective extracts described as disclosure statements were marked through PW42. Such a procedure, it was submitted, is contrary to law and renders the alleged recoveries inadmissible.
20. It was also argued that Ext. P66 series WhatsApp chats exchanged between the appellant and his wife, Aarathi, who was not examined as a witness, are inadmissible in evidence in view of Section 122 of the Indian Evidence Act. Although a specific objection was raised at the time of marking the documents, the learned Sessions Judge erroneously overruled the objection, which according to the learned counsel cannot be sustained under law.
21. Finally, referring to Ext. C1 series outpatient records issued by Kasturba Hospital, Manipal, and Ext. C2 series X-ray films, the learned counsel submitted that the appellant was suffering from physical infirmities. In view of the same, it was highly improbable that he could have single-handedly overpowered and strangulated the deceased, severed both her legs and feet, dug a pit, carried the body and buried it in the manner alleged by the prosecution.
22. According to the learned Counsel, as the finding of guilt was based on circumstantial evidence, the trial Court was bound to follow the principles of law laid down in Shivaji Sahabrao Bobade v. State of Maharashtra ([(1973) 2 SCC 793]) , wherein, the “panchsheel” principles of the proof of a case based on circumstantial evidence was laid down.
23. In response, Sri.K.K.Rajeev, the learned Senior Public Prosecutor, has taken this Court through the entire evidence and the circumstances relied on by the learned Sessions Judge and it was argued that the Court has meticulously and painstakingly evaluated the evidence and has correctly arrived at the finding of guilt.
24. We have carefully considered the rival submissions and evaluated the evidence on record.
V. The law governing circumstantial evidence:
25. As is evident, the entire prosecution case rests solely on circumstantial evidence. In the case on hand, the circumstances comprise the relationship and its clandestine character, the flow of money from the deceased to the appellant, the planning of the secret journey, the last-seen account of PW-8, the call data and tower records, the recoveries effected at the instance of the appellant, and the forensic, DNA and other scientific material. Before analysing and appreciating the circumstances that have weighed with the Trial Court and the High Court, we consider it appropriate to refer to the principles laid down by the Apex Court governing the appreciation of cases founded on circumstantial evidence.
26. In Hanumant Govind Nargundkar v. State of M.P ([AIR 1952 SC 343]) , which is one of the earliest decisions on the subject, the Apex Court observed as under:
“10. … It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.”
27. In Padala Veera Reddy v. State of A.P (supra), the Apex Court held that when a case rests upon circumstantial evidence, the following tests must be satisfied:
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”
28. In Sharad Birdhichand Sarda v. State of Maharashtra ([(1984) 4 SCC 116]) , it was held by the Hon’ble Supreme Court that the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ‘must’ or ‘should’ and not ‘may be’ 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.
29. In Ramreddy Rajesh Khanna Reddy and Another v. State of A.P ([(2006) 10 SCC) 172] , the Apex Court, while reiterating the settled legal position, observed:
26. It is now well settled that with a view to base a conviction on circumstantial evidence, the prosecution must establish all the pieces of incriminating circumstances by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than one of guilt of the accused. The circumstances cannot be on any other hypothesis. It is also well settled that suspicion, however grave it may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence.”
VI. The Circumstances considered:
(i) Identity of the exhumed body:
30. On 29.04.2020, after the investigation was taken over by the Crime Branch on 27.04.2020 as per Ext. P105 report and the accused was arrested on 28.04.2020 as per Ext. P106 series arrest memo. Based on the disclosure statement of the appellant, mutilated pieces of a human body were exhumed from a marshy strip lying along the western compound wall of "Vignesh" House, the house taken on lease by the accused.
30.1. PW3 (Anupam Das @ Kannan), the cousin of the deceased, and CW7 (Anilkumar) were summoned by the police to Palakkad. PW3 deposed that he reached the house at about 10.30 a.m. and saw the accused alighting from the police jeep. According to him, the accused led the police party to the marshy land adjoining the compound wall and pointed out a particular spot. Workers removed the soil, cement pieces and stones covering the area. As the excavation progressed, a foul smell emanated from beneath the ground. After digging a bit, further parts of a mutilated body were exhumed. PW3 identified the body as that of Sujithra as he could identify MO10 nightie worn by her. He also deposed that the body was subsequently entrusted to him under Ext. P5 body receipt.
30.2. PW5 (Anilkumar), a neighbour of the deceased's family, accompanied PW3. He corroborated the testimony of PW3 in all material particulars. He stated that the accused pointed out the place where the body had been concealed and that, after removing the soil, stones were found tightly packed over the body. After removing the stones, the pieces of the body were recovered.
30.3. PW13 (Smithesh), the Ward Councillor of Ward XII, stated that he had stood as a witness to the exhumation process and attested Ext. P25 exhumation mahazar as well as Ext. P26 inquest report.
30.4 PW19, the Chief Police Surgeon who conducted the postmortem examination, preserved a portion of the sternum, the femur bone, and the skull along with the lower jaw and teeth from the exhumed body specifically for DNA profiling and superimposition studies. PW15 (Dr. Unnikrishnan), Chief Medical Officer, District Hospital, Kollam, collected the blood samples of PW1, the mother of the deceased and CW2, the father of the deceased. PW42 seized the postmortem materials under Ext. P120 mahazar and the blood samples of the parents under Ext. P121 mahazar.
30.5 PW39 (Priya Mary Chacko), the Scientific Officer, DNA Division, State Forensic Science Laboratory, deposed that on 14.07.2020 she received, through the Judicial First Class Magistrate Court-II, Kollam, a parcel containing 45 sealed packets. She found that all the seals were intact and tallied with the specimen seal impressions. After conducting DNA profiling, she issued Ext. P92 report. The report conclusively established that the biological profile obtained from the exhumed body was that of the biological daughter of PW1 and CW2. The records also reveal that the body was in the charge of Smt. Beena.V, a Police Officer who had identified and handed it over to the postmortem Surgeon.
30.6. In the light of the evidence tendered by PW2 and PW5, the unbroken chain of custody, and the conclusive scientific evidence in the form of DNA profiling, there cannot be any semblance of doubt that the body exhumed from the premises at Manali was that of Sujithra Pillai, the biological daughter of PW1 and CW2.
(ii) Homicidal death by ligature strangulation:
31. The prosecution examined Dr. P.B. Gujaral (PW19), the Chief Consultant in Forensic Medicine and Police Surgeon attached to the Health Services at the District Hospital, Palakkad who conducted the autopsy on the deceased. He deposed that on 29.04.2020, he conducted the postmortem examination on the exhumed body of a female, suspected to be that of Sujithra, and issued Ext. P37 Postmortem Certificate.
31.1. The Doctor noted six antemortem injuries on the body of the deceased. This included contusions on the outer aspect of the right chest wall with an underlying fracture of the seventh rib, contusions on the front of the left chest wall, on the back of the right chest, and on the right half of the back of the head. According to the Doctor, these injuries appeared fresh, subject to the limitations imposed by the stage of decomposition.
31.2. Insofar as the postmortem injuries are concerned, the Doctor noted extensive postmortem burns with loss of the dermis and subcutaneous tissues over the front and left side of the chest, including both breasts, the left half of the back of the abdomen, the outer and back aspects of the entire right upper limb, the front, outer and back aspects of the right thigh, the outer aspects of the left thigh, hip and buttock, and the front, outer and back aspects of the left shoulder and upper limb.
31.3. The Doctor further noted an incised amputation of the right leg at 27 cm below the groin, with chunks of soft tissue sliced off from the lower end of the thigh, exposing the lower end of the femur bone for a length of 12 cm. The ligamentous attachment to the upper border of the patella had been cut and separated, and the knee joint capsule had been incised to separate the leg at the joint. The lower end of the medial meniscus was also found to have been sliced out.
31.4. He also noted an incised amputation of the left leg at 29 cm below the groin, with chunks of soft tissue sliced off from the lower end of the thigh, exposing the lower end of the femur bone. The ligamentous attachment to the upper border of the patella had likewise been cut and separated, and the knee joint capsule had been incised to separate the leg at the joint.
31.5. The Doctor further recorded an incised amputation of the right foot at 3cm above the ankle, with the lower ends of the tibia and fibula cut and separated at the same level. The report also noted an incised amputation of the left foot at 9cm above the ankle, with the tibia cut at 11cm above the ankle and the fibula at 9cm above the ankle.
31.6. On the basis of the postmortem examination, the Doctor opined that the deceased had died due to ligature strangulation. He further found evidence of blunt force having been applied to the chest. The postmortem findings also clearly revealed evidence of postmortem mutilation and immolation of the body. According to the Doctor, the approximate time since death was more than one week but less than one year prior to the date of the postmortem examination.
(iii) The electronic evidence – link and retrieval:
32. The case projected by the prosecution is that the murder was committed in secrecy and that there is no eye witness to the occurrence. According to the prosecution, the appellant, acting on the basis of a carefully conceived plan and with a devious intent, abducted the deceased to his rented house at Manali, wrongfully confined her there from 17.03.2020 to 20.03.2020, and caused her death on the evening of 20.03.2020.
32.1. The prosecution seeks to establish this chain of events primarily through electronic evidence, which forms the backbone of its case. The chat transcripts assume considerable significance, as they reveal the nature of the relationship between the appellant and the deceased and disclose the prolonged course of communication through which the deceased was persuaded to accompany the appellant to his rented house. The prosecution has also placed substantial reliance on the Call Data Records and mobile tower location data to establish that the appellant and the deceased travelled together from the Kollam Bypass to Manali. These records are further relied upon to demonstrate the point of time at which the mobile phone used by the deceased became inactive, which, according to the prosecution, coincides with the commission of the crime.
32.2. The other significant piece of evidence relied upon is the Google search history retrieved from the appellant's device, which, according to the prosecution, throws light on his state of mind and the preparations allegedly made by him on the date of the incident. The prosecution has also produced portions of the WhatsApp conversations exchanged between the appellant and his wife in an attempt to establish that he deliberately concealed from her both his relationship with the deceased and the fact that he and the deceased had travelled together on 17.03.2020 and remained at his rented house until 20.03.2020.
32.3. Since the prosecution case rests to a substantial extent on this body of electronic evidence, it becomes necessary to examine it meticulously before turning to the remaining circumstances relied upon by the prosecution. It is therefore necessary to closely scrutinise the conversations between the appellant and the deceased as reflected in the chat records, the communications exchanged between the appellant and his wife, and the conversations between the appellant and PW-3 (Kannan) and PW-6. The evidentiary value of these records, their authenticity, and the inferences sought to be drawn from them assume considerable importance in assessing whether the prosecution has succeeded in establishing the chain of circumstances beyond reasonable doubt.
32.4. Before examining the contents of the electronic records, it is necessary to first determine whether the devices and mobile numbers relied upon by the prosecution have been satisfactorily identified and connected to the persons concerned. Unless the prosecution first establishes that the relevant mobile numbers and electronic devices belonged to, or were in the exclusive use of, the persons to whom they are attributed, the evidentiary value of the chats, call records, location data, and other electronic material cannot be relied upon.
32.5. It would be pertinent to note that PW1 had approached this Court by filing a writ petition seeking the issuance of a writ of habeas corpus to trace out the missing Sujithra. The appellant was arrayed as the 4th respondent in the said writ petition. The Police had, on 23.03.2020, registered Crime No. 259 of 2020 under the caption "Woman Missing" and had commenced an investigation into her disappearance. The evidence of PW1 and PW3 reveals that, during the course of the investigation to trace the whereabouts of Sujithra, the investigating agency examined her call detail records. It was then noticed that there had been frequent telephonic communication between Sujithra and the appellant. This led the Police to direct their attention towards the appellant and to closely examine his role in the events leading to the disappearance of Sujithra. The investigation ultimately culminated in the arrest of the appellant on 29.04.2020, as evidenced by Ext. P106 series arrest records. At the time of his arrest, a Redmi dual SIM mobile phone was found in his possession. The said device was seized under Ext. P108 seizure mahazar. The seized mobile phone was subjected to forensic analysis by PW31, an officer attached to the Cyber Wing of the Police, who was also a member of the Special Investigation Team constituted for the case.
32.6. The prosecution has also adduced evidence to establish that, during the relevant period, the appellant was using two mobile phone connections. The first was a BSNL connection bearing mobile number 8281966587, the Customer Application Form relating to which has been marked as Ext. P78. The second was an Airtel connection bearing mobile number 7994558400, the Customer Application Form for which has been marked as Ext. P51. Ext. P51 shows that the said connection stood in the name of Prasanth T. These records are relied upon by the prosecution to establish the connection of the mobile numbers to the appellant. This laid the foundation for the admissibility and evidentiary value of the electronic records generated from those connections.
32.7. Arathy, the wife of the accused (CW5), was using mobile number 8281027522. The investigating officer seized the mobile phone of CW5 Arathy, as per Ext.P135 mahazar. Ext.P134 is the whatsapp chat history analysis report prepared by PW42 based on the chat retrieved from the mobile phone of the wife of the accused (CW5), which was seized as per Ext. P135 mahasar on 02.05.2020. We will deal with the contention of the appellant that this chat history is not admissible in evidence under Section 122 of the Indian Evidence Act, 1872 at a later stage.
32.8. The deceased, Sujithra Pillai, was using mobile number 7559926749, which was a Vodafone connection. Although the Customer Application Form (Ext. P84) stood in the name of Anupam Das @ Kannan (PW3), evidence was let in to establish that the number was being used by the deceased. PW1, the mother of the deceased deposed that her daughter was using the Vodafone SIM obtained in the name of Kannan bearing mobile number 7559926749.
32.9. PW3, Anupam Das (Kannan), was the registered subscriber of the deceased's Vodafone connection bearing number 7559926749. He was also the registered subscriber of another Vodafone number 9656860637, supported by CAF Ext. P81 and Call Detail Records Ext. P82, as well as Airtel number 7994808209. This was established by Ext. P61 series is the Customer Relationship Form (CRF) of the mobile number 7994808209 which was issued the name of Anupam Das and Ext.P62 is the call details records of the said number from 01.03.2020 to 30.04.2020.
32.10. The prosecution has let in evidence to establish that mobile number 9895682528, belong to PW1 Vijayalakshmi (Airtel), and mobile bearing no 9544514231, belong to PW2 Jayakumari (Vodafone), mobile bearing no 9562193363, was used by PW5 Anilkumar, though the connection stood in the name of his wife, Sreekala. Evidence was also let in to establish that an Airtel mobile connection bearing No. ‘7356481319’, stood in the name of R. Sivadasan Pillai.
32.11. PW29, Vasudevan, was the Nodal Officer of Bharti Airtel. He deposed that, pursuant to a requisition issued by the District Police Chief, Kollam, he furnished the Customer Application Forms (CAF), Call Detail Records (CDRs), GPRS data, and other subscriber details relating to various Airtel mobile numbers, along with the requisite certificate under Section 65B of the Indian Evidence Act. He identified Ext. P51 as the Customer Application Form relating to mobile number 7994558400, which stood in the name of Prasanth.T, and Ext. P52 as the corresponding Call Detail Records for the period from 01.01.2020 to 28.04.2020. Ext. P53 is the Customer Application Form relating to mobile number 7356481319 standing in the name of R. Sivadasan Pillai, and Ext. P54 contains the corresponding Call Detail Records. Ext. P55 is the Customer Application Form relating to mobile number 9895682528, standing in the name of Vijayalakshmi, while Ext. P56 contains the corresponding Call Detail Records and Ext. P56(a) contains the call details specifically relating to the period from 17.03.2020 to 20.03.2020. PW29 stated that all the above records were furnished together with Ext. P57, the certificate issued under Section 65B of the Indian Evidence Act, and Ext. P58 covering letter.
32.12. PW29 gave evidence that Ext. P59 is the GPRS data pertaining to mobile number 7994558400 for the period from 17.03.2020 to 21.03.2020. Ext. P60, is the certificate issued under Section 65B. He also identified Ext. P61 series as the Customer Application Form and identity proof relating to mobile number 7994808209, standing in the name of Anupam Das @ Kannan (PW3). Ext. P62 is corresponding Call Detail Records for the period from 01.03.2020 to 30.04.2020. He further stated that he decoded the Cell IDs reflected in the Call Detail Records and issued Ext. P64, the tower location chart indicating the geographical location of the respective cell towers. According to PW29, Ext. P51(a), the Aadhaar Card accompanying the Customer Application Form relating to mobile number 7994558400, constituted the identity proof of the subscriber and required no further verification. Through the mobile number 7994558400 is attributed to the accused, the Customer Application Form, Ext. P51, stands in the name of Prasanth.T and not Prasanth.P. However from the evidence let in by the prosecution witnesses and the call details it is evident that the mobile number 7994558400 is actually used by the appellant.
32.13. PW-31, Niyas.A., deposed that he is the ASI (Grade) in the Kollam City Cyber Police Station and had been working in the Cyber Cell from 2017 onwards as per the order of the Higher Authority. He stated that he has passed the Computer Aptitude Test from C-DAC in 2016 in the Cyber Forensic Course and also completed a Cyber Course conducted by the Kerala Police. He is also a holder of a Certificate in CCNA International. He added that he was included in the investigating team in this case.
32.14. On 02/05/2020 he examined a mobile phone and a Whatsapp in account number 8281027522. The print-outs of the Whatsapp chats from this number to the Whatsapp numbers 8281966587, which is saved as 'Prasanth Ettan' and 7994558400 saved as 'Prasanthettan Airtel' have been taken with the official gadgets in the Kollam City Cyber Cell and submitted it into the investigating officer along with certification u/s Sec.65B of Evidence Act. The print-outs of Whatsapp chats identified as Ext.P66 series. On 07/05/2020 as per the instructions of the investigating officer he activated the G-mail Account 'sujithrachithu@gmail.com', facebook account and Whatsapp account in the phone number 7559926749 after inserting a duplicate SIM in the mobile phone handed over by the investigating officer. The print-outs of the messenger chats in this facebook account with the account of Prasanth and the Facebook Profile Information downloaded using the official gadgets in the Cyber Cell. The Ext.P68 series is the print-out of the messenger chats in this facebook account with the account of Prasanth. Ext.P69 is the print-outs of Facebook Profile Information. These print-outs were handed over along with Ext.P70 Certification. The original chats of the Ext.P-68 series are still available in these Facebook accounts.
32.15. PW37, Sajeev P.K., the Alternate Nodal Officer of BSNL Kerala Circle, stated when examined before Court that he had been functioning in that capacity from April 2020 onwards. He identified Ext. P78 as the Customer Application Form relating to BSNL mobile number 8281966587 and Ext. P79 series as the corresponding Call Detail Records covering the period from 01.01.2020 to 28.04.2020. Ext. P80, is the certificate issued under Section 65B of the Indian Evidence Act. Exhibit P78 would reveal that the same stands in the name of ‘Prasanth T’.
32.16. PW38, Augustin Joseph, was examined as the Alternate Nodal Officer of Vodafone Idea Kerala Circle. He deposed that during the relevant period, M.V. Rajesh was the Nodal Officer of the Circle and that he was personally familiar with Rajesh's handwriting and signature, as they routinely endorsed, signed, and received official documents in the course of their duties. On that basis, PW38 identified and proved the documents issued by Rajesh. PW38 identified Ext. P81 as the Customer Application Form relating to mobile number 9656860637, standing in the name of Anupam Das @ Kannan(PW3). Ext. P82 as the corresponding Call Detail Records, and Ext. P83 as the certificate issued under Section 65B of the Evidence Act. He further identified Ext. P84 as the Customer Application Form relating to mobile number 7559926749, standing in the name of Anupam Das, and Ext. P85 series as the corresponding Call Detail Records pertaining to the deceased, Sujithra Pillai. PW38 also proved Ext. P86, the Customer Application Form relating to mobile number 9544514231 standing in the name of Jayakumari, together with Ext. P87 series, the corresponding Call Detail Records. He identified Ext. P88, the Customer Application Form relating to mobile number 9562193363 standing in the name of Sreekala, wife of Anilkumar, together with Ext. P89 series, the corresponding Call Detail Records. Ext. P90, the certificate issued under Section 65B, was issued by Rajesh and was proved by PW38 through identification of Rajesh's signature. PW38 also identified Ext. P91, the Cell Tower Decode Chart. He further deposed that all the Call Detail Records and Customer Application Forms had been generated from the servers maintained by Vodafone Idea in the ordinary course of business. He also explained that Rajesh, who had issued Exts. P83 and P90, had by then been transferred to the Tamil Nadu Circle. Thus, insofar as the Vodafone records are concerned, the certificates under Section 65B, namely Exts.P83 and P90, were proved through PW38, who identified the handwriting and signature of Rajesh and explained the reason for his non-examination. The details were downloaded by Rajesh from the server and he has issued a certificate as contemplated under law. Since Rajesh was unavailable the certificate was marked through PW38 , who is a person working in the same establishment and is acquainted with the signature of Rajesh. From the evidence let in as above, the following conclusions can be reached with regard to the ownership and use of the mobile numbers:
32.17. The above being the details of the individuals and the respective mobile numbers associated with them, we shall now proceed to consider the forensic analysis reports and the electronic records retrieved from the respective devices and mobile connections. The evidentiary value of these reports and the conclusions sought to be drawn therefrom will have to be assessed in the light of the foundational facts that have now been established.
32.18. PW40 is Deepa A.S., Assistant Director of the State Forensic Science Laboratory, Thiruvananthapuram. She was the digital forensic examiner in the case. She deposed that, on 23.03.2021, she examined the material objects in Crime No. 259/2020. According to her, 13 sealed packets were received by the laboratory on 21.07.2020. She stated that the seals were intact and tallied with the specimen seal impression. The forensic examination was carried out over an extended period, from 24.08.2020 to 17.03.2021. After completion of the examination, she issued Ext. P-93, the forensic examination report. The soft copies of the retrieved digital data were stored in two pen drives enclosed as Annexures 5 and 6, which were marked as Exts. P-94 and P-95 respectively.
32.19. PW-40 identified each questioned item referred to in her report with the corresponding material object produced before the court. She deposed that Q-1 in the report corresponds to MO-31, the mobile phone attributed to the accused. Q-3 corresponds to MO-12, the handset carrying the duplicate SIM through which the deceased's WhatsApp account was displayed. She further identified the remaining questioned items as follows: Q-2 to MO-23, Q-5 to MO-24, Q-8 to MO-25, Q-10 to MO-26, Q-11 to MO-27 and Q-12 to MO-28. She explained that the purpose of the examination was to retrieve digital data from these material objects. She further stated that the examination was conducted using the Laboratory Forensic Work Station (FRED) together with the UFED Cellebrite 4PC Physical Analyzer, that all data extractions were performed using the UFED Cellebrite device, and that the remaining analytical procedures adopted during the examination are detailed in Ext. P-93.
32.20. Through the evidence of PW-40 and the report submitted by the officer, the prosecution strives to prove the Google search history recovered from the email account of the accused and the WhatsApp conversations exchanged between the accused and the deceased.
32.21. With regard to the search history, Annexure A-1 to Ext. P-93 relates to the email account prasanthnambiar009@gmail.com, accessed using the password ‘ prasanth@123 ’ . PW-40 deposed that she retrieved the activity history of this account for the period from 01.03.2020 to 20.04.2020. The hard copy of the retrieved data, comprising pages 1 to 85, was marked as Ext. P-93(a). Referring to specific entries in the document, she stated that page 7 records a Google search made on 20.03.2020 for "sadguru killed his wife". She further pointed out that page 8 records searches conducted on the same day between 5.00 p.m. and 6.00 p.m., including the search "how age matters for your fertility", followed immediately by a search for "extendfertility.com". The first two search entries were separately marked as Exts. P-93(a)(i) and P-93(a)(ii).
32.22. The second aspect concerns the WhatsApp chats exchanged between the accused and the deceased. PW-40 deposed that the contents of Ext. P-94 were exhibited in open court by playing the extracted data on a laptop connected to a display screen. Ext. P-94(a) comprises the WhatsApp chats extracted from MO-12, containing conversations with the WhatsApp number 8281966587. She stated that every communication carried its corresponding date and time stamp indicating when it was sent. The individual chat messages were marked as Exts. P-94(a)(i) to P-94(a)(xxv). The 110 images transmitted through the chats were collectively marked as Ext. P-94(b), and PW-40 identified on the display screen the date on which each image had been sent. Similarly, the 106 voice notes exchanged through the chats were stored in a separate audio folder and collectively marked as Ext. P-94(c).
32.23. The chat records reveal a gradual but unmistakable evolution in the relationship between the appellant and the deceased. On 05.02.2020 at 16:43:36, the appellant addressed the deceased affectionately as "ponnu" and enquired whether she wore a thali in her chain, further stating that he would provide her with one. At 16:46:19, the deceased responded by addressing him as "Kichaa." In the very next message sent at 16:46:20, she remarked that he was younger than her and questioned how she could wear a thali given by him. The appellant immediately replied by stating that he would replace the thali in her chain with a new one.
32.24. On 20.02.2020 at 16:58:06, the appellant expressed his eagerness to meet the deceased on the 25th. Thereafter, on 01.03.2020, the deceased conveyed her apprehension that the depth of his love might diminish after they became physically intimate. At 16:36:36 on the same day, she stated that she had no hesitation in doing anything for love, provided she was not neglected thereafter. The appellant responded by assuring her that he would remain with her forever.
32.25. On 02.03.2020 at 17:19:49, the deceased enquired as to what dress she should wear when she came to the appellant's house on the 18th. She suggested that wearing black would be convenient, as she could enter during the night without attracting attention. On 04.03.2020 at 22:39:22, the appellant wished her good night and informed her that he could not continue chatting on Facebook because someone had come near him. On 05.03.2020 at 15:40:22, the appellant instructed the deceased that they should enter his house before 4.30 a.m., as no one would notice them at that hour and even his friends were unaware of the location of his house. He further stated that they should leave before 4.00 a.m.
32.26. The sequence of these conversations is both revealing and significant. The chat history shows that the appellant first initiated contact with the deceased through Facebook Messenger in December 2019. Initially, the exchanges were casual in nature, with the appellant addressing the deceased as his sister. As time progressed, the frequency of communication increased, and the relationship gradually evolved from one of casual acquaintance to close friendship, eventually developing into an intimate relationship. The chats disclose that the appellant persistently cultivated the confidence of the deceased. Through continuous communication, repeated expressions of affection, and assurances that he would always care for and protect her, he succeeded in gaining her trust. The conversations extended to every aspect of his daily life, including his food habits, his visits to the gym, and his future aspirations. He also expressed his desire that they should enter into a physical relationship when they eventually met.
32.27. The deceased, as is evident from the chat, sought reassurance regarding the appellant's affection and repeatedly questioned whether his feelings towards her were genuine. Each time, the appellant responded with emphatic assurances of his love and commitment and stated that he would protect and take good care of the deceased. These repeated assurances appear to have deepened the confidence reposed by the deceased in the appellant. It needs to be borne in mind that the deceased was about 41 years old, divorced twice and was lonely whereas the appellant was young though married and with a child.
32.28. The chat records retrieved from the accounts of both the appellant and the deceased further disclose a series of conversations relating to the transfer of money by the deceased to the appellant. On 06.02.2020, the appellant informed the deceased that he had identified a piano priced at ₹1,50,000. On the very same day, at 15:26:38, the deceased replied that she would arrange the required amount. Thereafter, on 16.02.2020 at 21:25:10, the appellant forwarded to the deceased his name and the particulars of his bank branch at Victoria College, Palakkad, evidently to facilitate the transfer of funds. On the following day, namely 17.02.2020 at 12:09:30, the appellant messaged the deceased confirming that he had received the amount. The chats further reveal that on 06.03.2020 at 13:01:16, the appellant informed the deceased that he had not paid the rent for his house. In response, the deceased assured him that he could ask her for money without any hesitation. On 07.03.2020 at 11:58:22, the deceased offered to give him a further sum of ₹10,000, to which the appellant responded that he would utilise the amount to purchase a small thali. On 11.03.2020, the appellant enquired whether the deceased had transferred the money. On the same day, at 18:37:31, the deceased replied that she had transferred ₹30,000. In the very next message, she clarified that the amount had been remitted in three separate transactions of ₹10,000 each. The above electronic chat extracts find corroboration from the oral evidence of PW2, PW3 and PW4. These witnesses deposed that the appellant had informed them that he had received a sum of ₹2,50,000 from Sujitra for the purchase of a piano and that the said amount continued to remain in his bank account. The appellant in his statement under Section 313(1)(b) of the Code of Criminal Procedure, also acknowledges that he received the said amount from the deceased for the purchase of a piano.
32.29. The cumulative effect of the electronic evidence, the oral testimony of PW2, PW3 and PW4, and the appellant's own statement under Section 313 establishes that the appellant had received a sum of ₹2,50,000 from the deceased. The prosecution has also succeeded in establishing that this financial transaction was deliberately kept concealed from the appellant's wife and other members of the family of the Appellant and that of the deceased.
32.30. The chats also indicate that, pursuant to the appellant's request, the deceased travelled to Ernakulam on an earlier occasion, where they met and shared physical intimacy. It was thereafter that the appellant persuaded the deceased to travel to Palakkad on 17.03.2020 and remain there with him until 22.03.2020. The entire progression of events, beginning with the initiation of contact, the development of the relationship, the financial transactions, and ultimately the arrangements for the deceased to travel and stay with the appellant, emerges clearly from the chat records relied upon by the prosecution.
32.31 Most importantly, the chat communications between the appellant and the deceased came to an abrupt end on 17.03.2020, the very day on which, according to the prosecution, they travelled together in the appellant's car to Manali. This circumstance assumes considerable significance when viewed in conjunction with the other evidence relied upon by the prosecution and forms an important link in the chain of circumstances sought to be established.
32.32. Thus, the intimate relationship between the accused and the deceased, as well as the secret financial support extended by the deceased to the accused, which the appellant later admitted during his examination under Section 313 of the Code of Criminal Procedure, were first established through the digital evidence retrieved and exhibited by PW-40. The WhatsApp messages extracted under Ext. P-94(a), particularly those dated 02.03.2020 and 05.03.2020, contain the instructions that the deceased should wear black clothing so that she would not be noticed at night, enter the house before 4.30 a.m., and leave before 4.00 a.m. These messages, recovered and exhibited through PW-40, established that the journey undertaken by the deceased on 17.03.2020 was not accidental or spontaneous but a carefully planned and secret visit.
(iv) The illicit and secret relationship:
33. To evaluate the said circumstance, it is necessary to consider the evidence of PW’s 1 to 5, Exhibit P94 series whatsapp chat transcripts between the appellant and the deceased, Exhibit P68 series Facebook Messenger chats, Exhibit P6 series whatsapp chats and Exhibit P93 report.
33.1. PW1, Vijayalakshmi, is the mother of the deceased. She deposed that though the deceased had married twice, due to personal reasons, both marriages ended in divorce. She stated that the deceased was not interested in getting married again. However, after reading an article in a magazine, she had expressed a desire to have a child through artificial insemination and had discussed the same with her. She stated that the deceased was employed as a Tutor and Administrative Officer at Le Boutique Academy. The deceased usually left her residence for work at 7.45 a.m. and returned home at about 6.30 p.m. She was drawing a monthly salary of Rs. 20,000. According to her, the deceased had attended a training programme in February 2020 and was required to attend another four day training programme commencing from 15.03.2020. She stated that the deceased informed her that she would proceed to the training directly after work on 17.03.2020.
33.2. On 17.03.2020, the deceased left home for work carrying a dark maroon bag packed with clothes, make-up items, other personal essentials, and a food packet. The said bag was delivered to the deceased at her workplace by PW5, Anilkumar, who was working as an auto driver. When she contacted the deceased at about 4.30 p.m., the deceased informed her that she would be leaving shortly. At about 9.00 p.m., the deceased told her that she had reached Ernakulam. PW1 further stated that she spoke to the deceased on 18.03.2020 and 19.03.2020. However, when she attempted to contact her at about 6.30 p.m. on 20.03.2020, the phone rang three times before the call got disconnected. When she called again, the phone had been switched off. She stated that PW5 had spoken to the deceased on the afternoon of 20.03.2020, and the deceased had informed him that she had booked a train ticket for 22.03.2020. PW1 stated that after speaking with her daughter on the morning of 20.03.2020, she had no further contact with her. According to her, when her daughter left home, the deceased was wearing a black pant, black top, and a black shawl. She was also wearing a Savitham fashioned gold chain weighing four sovereigns, a gold bangle weighing one sovereign, a gold ring weighing approximately three grams, and a pair of imitation earrings. She identified the accused in the dock and stated that he was a relative of the family. According to her on 15.03.2020, the accused and his family had visited their house after picking up the deceased from her workplace. She also deposed that the deceased had attended the weaning ceremony of the accused's child at Guruvayoor and had, on an earlier occasion, visited the rented house of the accused at Palakkad. PW1 stated that, when she did not receive any information regarding her daughter, she decided to approach the police on 21.03.2020. However, due to the announcement of the Covid lockdown and the Janatha Curfew, she was unable to lodge a complaint on that day. On the following day, when she approached the police station, she was advised to wait for one more day and to initiate legal proceedings if no information regarding her daughter was received by then. Consequently, Ext. P1 First Information Report was registered at 12.30 p.m. on 23.03.2020. She further deposed that on 25.03.2020, the police called her husband and enquired about the accused, Prasanth. On 02.04.2020, when she was called to the police station, she noticed the accused standing outside. On questioning him regarding the disappearance of the deceased, the accused told her that the deceased had reached Palakkad with another man, had telephoned him asking for directions to his house, but since he was at a shop, he could not enquire further. According to the accused, when he later called the deceased, her phone had been switched off. PW1 also stated that the accused informed her that the money borrowed from the deceased was intended for the purchase of a piano. On hearing this explanation, she realised that the accused had narrated an entirely different version of events to her sister in law.
33.3. PW1 further stated that on 15.04.2020, she submitted Ext. P2 written complaint. She also deposed that she had filed a Habeas Corpus Petition against the accused. According to her, Ext. P3 complaint submitted before the police was based on the information furnished by the accused that another person had been accompanying the deceased. She stated that on 29.04.2020, she was informed about the death of the deceased. According to her, the SIM card used by the deceased had been obtained in the name of Kannan and bore the mobile number 7559926749. She stated that her own mobile number was 9895682528. She also deposed that blood samples of her husband were collected at Kollam District Hospital for DNA analysis. She identified the make up items packed by her as MO1 to MO6 and the ornaments worn by the deceased as MO7 to MO9.
33.4. During cross examination, PW1 stated that the delay in reporting the disappearance was solely on account of the declaration of the Janatha Curfew and the ensuing lockdown. The copy of the Habeas Corpus Petition filed by her was marked as Ext. D1. In the said petition, the accused was arrayed as a respondent, and it was also mentioned that the deceased had gone to Ernakulam along with one of her colleagues. PW1 further stated that she began to suspect the accused when he narrated different and inconsistent versions regarding the disappearance of the deceased to her and to her sister in law. Ext. D3 is the divorce petition filed by the second husband of the deceased. Ext. D11 contradiction was marked in relation to her evidence concerning the allegation of alcoholism raised by the second husband as the reason for seeking divorce. During re-examination, she clarified that it was only on 27.04.2020 that she gave her detailed statement to the police.
33.5. PW2, Jayakumari, is the sister in law of PW1. She is a homemaker residing with her son, Kannan. She stated that the accused is the husband of her relative, Chithra. She stated that she along with her son and the deceased attended the weaning ceremony (choroonu) of the child of the appellant held at Guruvayoor. They travelled together with the accused and his wife, and while returning after the ceremony, they visited the house where the accused used to stay at Palakkad. PW2 further stated that she was aware that the deceased had gone to Ernakulam for a training programme commencing on 17.03.2020. She spoke to the deceased over the phone on 18.03.2020. On 20.03.2020, at about 8.30 p.m., when she attempted to contact the deceased, the phone was found switched off. She immediately informed PW1, who told her that when she had earlier called the deceased, the phone had rung three times before the call got disconnected. She was told that the phone had been switched off. PW2 stated that the disappearance of Sujithra was reported to the police on 23.03.2020 and that she informed PW4 about the same on 24.03.2020. When she enquired with the accused regarding the whereabouts of Sujithra, the accused informed her that Sujithra had travelled with him and that, after reaching Ernakulam, another person had joined them. According to the accused, Sujithra and the said person occupied the rear seat of the vehicle. He further told PW2 that they had initially intended to get down at Thrissur, but as it was very late at night, all three stayed at his residence at Manalil until 20.03.2020. The accused told her that, on the evening of 20.03.2020, he dropped Sujithra and the person who had joined them from Ernakulam at the Thrissur Bypass, after which they hired an auto. He also told PW2 that Sujithra had specifically instructed him not to contact her as she intended to keep her phone switched off and that she would return after a few days. She stated that she came to know about the death of Sujithra on 29.03.2020 and deposed that her mobile number is 9544514231.
33.6. During cross examination, PW2 stated that the information furnished by the accused had been conveyed by her to PW1 on the very same day, though the same was not communicated to the police. She further stated that the accused had informed her that the person who joined them from Ernakulam was a trainer.
33.7 PW3, Anupam Das, is the son of PW2 and the cousin of the deceased. He deposed that he had obtained a SIM card for his use and had handed over the same to the deceased. He identified the accused in the dock. According to him on 20.03.2020, PW1 contacted him and informed him that the phone of the deceased had been switched off and she was not in a position to reach her. He immediately attempted to contact the deceased several times, but the phone was found switched off. According to him he conducted a search for the institution where the deceased claimed to be undergoing training and he realised that no such academy existed. PW3 stated that on 24.03.2020, the police informed him that the phone of the deceased had last been switched off at Manalil, Palakkad. He conveyed this information only to his mother, believing that it would be inappropriate to cause further distress to the parents of the deceased. Thereafter, he messaged Arathy to ascertain the exact location of Manali, and it was only then that he came to know that she was residing there. When Arathy enquired about the reason for the query, he informed her that the deceased's phone had been switched off at Manali.
33.8. He deposed that on 25.03.2020, the Kottiyam Police contacted the father of the deceased and enquired about the accused. The police also informed them that there had been frequent telephonic communication between the deceased and the accused. PW3 then contacted the accused, who narrated substantially the same version that had earlier been told to PW2 and also referred to a person by name Ramdas. Since PW3 did not know anyone by that name, he searched the Facebook profile of the deceased and forwarded certain photographs to the accused to identify Ramdas. The accused, after seeing the pictures, stated that the physical features of Ramdas did not match the persons in the photographs. PW3 stated that on 02.04.2020, when the accused was present at the police station, he realised that the versions narrated by the accused to PW1 and PW2 were materially different. He also deposed that on 12.04.2020, the accused sent him the following WhatsApp message:
( I know that everyone is distressed because of me. I no longer feel like living. I seek forgiveness from each one of you a hundred times. Arathy will take good care of my son)
33.9. PW3 stated that on 29.04.2020, when he reached the residence of the accused, he witnessed the accused pointing out a specific location to the police. Thereafter, cement blocks, stones, and sand were removed from the marshy land near the accused's residence, and the body of the deceased was exhumed from the spot so identified by the accused. He is an attesting witness to Ext. P5 body receipt. The WhatsApp chats exchanged between PW3 and the accused were marked as Exts. P6 series, P7, P9, and P10.
33.10 PW4, Chithra Pillai, is the mother in law of the accused. She stated that the accused was working as a music teacher and was residing at Manali, Palakkad. According to her, the accused left her residence on 17.03.2020. She further stated that on 20.03.2020, the accused telephoned her in a disturbed state of mind and requested her to inform his wife that he was leaving for his classes. The witness did not support the prosecution, and Exts. P13 and P14 case diary contradictions were marked in her testimony.
33.11. During cross examination, PW4 stated that her daughter had filed a petition for divorce. According to her, the information she had furnished to the police was based only on what she had heard from others. During re-examination, she clarified that she had overheard certain conversations when her daughter had kept the phone on loudspeaker and further stated that the murder case registered against the accused was the reason for the matrimonial dispute and the subsequent divorce proceedings.
33.12. PW5, Anilkumar, is the neighbour of the deceased. He deposed that, on 17.03.2020, as per the instructions of PW1, he collected the bag belonging to the deceased and delivered it to her workplace at about 11.00 a.m. The deceased had informed him that she would return on 22.03.2020. PW5 stated that he witnessed the accused pointing out a specific place from where two workers removed soil and stones from the marshy land near the accused's residence, resulting in the exhumation of the body of the deceased. He stated that the mobile number used by him was 9562193363, though it stood in the name of his wife. During cross examination, PW5 stated that on 23.03.2020, he had accompanied PW1 to the police station when she submitted the written complaint regarding the disappearance of the deceased.
33.13. We have already dealt with the chats between the appellant and the deceased while discussing the 3rd circumstance. The evidence of PWs 1 to 5, that of PW40, Ext.P94 (a) whatsapp chats between the phone of the deceased (MO12) extracted through a duplicate SIM, and Ext.P68 series printouts of Facebook chats proven through PW31, clearly established that the appellant was maintaining a secret relationship with the deceased and he was concealing the same from his wife.
(v) Receipt of Rs. 2,50,000 in secrecy:
34. The next circumstance is with regard to the receipt of a sum of ₹2,50,000 from the deceased by the appellant in secrecy. In order to establish the said fact, the prosecution examined Sri Georgekutty (PW11), who is the father of Josie George, a friend of deceased Sujithra. In his evidence, he stated that the deceased was a close friend of his daughter. His daughter is presently working in the United Kingdom. In the year 2020, his daughter was employed in the United Arab Emirates. Sujithra Pillai approached him and told him that her house is under attachment and requested for money. As suggested by his daughter, he transferred a sum of ₹2,00,000 from the account maintained by him at the Federal Bank, Kannanaloor Branch and transferred the same to the account maintained by Sujithra in the SBI, Kannanallur Branch on 03.03.2020.
34.1. PW10 (Aneesh George) was the Manager of the Kannanaloor branch of SBI on 26.05.2020. He stated that as per the request of the investigating officer, he handed over Ext.P20 account details with certification under the Bankers' Book of Evidence Act. He stated that the account was that of Sujithra Pillai bearing number “20125540413”. He stated that as per the account details on 03.03.2020 a sum of ₹2,00,000 and on 06.03.2020 a sum of ₹1,00,000 was debited from the account of Sujithra Pillai. He also stated that on 07.03.2020, 10.03.2020, 11.03.2020, 12.03.2020, 13.03.2020, 14.03.2020 and 18.03.2020 the amounts were transferred through UPI. Ext.P133 is the statement of the account of the accused in the Kongad Branch of Federal Bank Ltd. which is opened in the name and address Prasanth T., Vignesh House, Palakkad. Ext.P133(a) is the certificate, evidencing the genuinity of Ext.P133. Ext.P133 would reveal that amounts have been credited from Sujithra’s account on 03.03.2020 and on 06.03.2020.
34.2. In the chats borne out from the account of the appellant as well as the deceased, it can be seen that on 06.02.2020 the appellant messaged that he had searched for a piano priced at ₹1,50,000 and on the same day at 15:26:38, the deceased offered to arrange the amount. On 16.02.2020 at 21:25:10, the appellant sent his name and the bank branch at Victoria College, Palakkad. On 17.02.2020 at 12:09:30, the appellant messaged that the amount had been received. On 06.03.2020 at 13:01:16, the appellant had messaged the deceased that his house rent had not been paid and she replied that he can ask her for money without hesitation. On 07.03.2020 at 11:58:22, the deceased offered ₹10,000 and the appellant responded that he would purchase a small tali. On 11.03.2020, the appellant enquired whether money had been transferred by her. On the same day, at 18:37:31, the deceased replied that she had transferred ₹ 30,000, clarifying in the next message that it was three transactions of ₹10,000 each. Furthermore, from the evidence of PW2, PW3 and PW4 it has come out that the appellant had informed them that he had received ₹2,50,000 from Sujithra for buying a piano and the amount was still lying in his account. The very same aspect has been stated by the accused in the 313 statement filed by him. From the above evidence, it can be seen that the case of the prosecution is that the appellant received a sum of ₹2,50,000 from the deceased and that it was kept concealed from his family members and wife.
(vi) Planning of a secret journey on 17.03.2020:
35. While tendering evidence, PW1 had deposed that on 25.02.2020, Sujithra left home saying that she wanted to attend a training at Ernakulam and returned back at night. The witness also stated that Sujiithra told her that she was to attend a 4 day training at Ernakulam which begins on 15.03.2020. The witness stated that on 17.03.2020, while leaving in the morning, Sujithra had informed PW1 that she would have to go to Ernakulam from the office after duty. PW1 deposed that she had packed the make-up items, food packets, 3 pairs of dress, 3 maxis, 2 towels, soap, paste, brush and hairband in a dark maroon bag and entrusted the same to Anilkumar for delivering it to Sujithra. PW1 deposed that Sujithra informed her by phone that she reached Ernakulam at 09.00 p.m. and Kolencherry at 10.00 p.m. In her evidence, PW4 (Chithra Pillai), the mother-in-law of the appellant, stated that the appellant had dropped his family members at a residence on March 17 and thereafter he had called back on 20th of March. In his evidence, PW3 (Kannan) deposed that he had searched the internet for an academy at Kolenchery of the kind Sujithra had described and he could not find any such academy.
35.1. From the chat messages of 02.03.2020 and 05.03.2020, it can be seen that the appellant informed the deceased that she better wear black dress so that she won't be noticed at night. He also informed the deceased that they will have to enter the house before 04.30 a.m. and depart before 04.00 a.m. This is because none of his friends knew the location of his house. Furthermore, Ext.P3 revealed that on 25.02.2020, the tower locations of Sujithra moved from Kollam to Aluva and those of the accused from Palakkad area to the Aluva area, which establishes that the earlier Ernakulam training was in fact a meeting between the deceased and the accused. Thus, it is evident that the accused and the deceased had planned in advance that they would meet on 25.02.2020 and they had also planned that they would go to the residence of the accused on 17.03.2020 and stay there till 22.03.2020.
35.2. These circumstances clearly establish that the appellant gained the confidence of the deceased through internet chats, voice calls and facebook messages and after gaining her confidence, persuaded her to travel to Palakkad on 17.3.2020 assuring the deceased that they would be able to spend some intimate time together without either the family of the deceased or the wife of the appellant knowing about the same.
(vii) The desire of the deceased to bear a child:
36. In her evidence, PW1 deposed that Sujithra was born in the year 1979 and she held B.Sc, BA and MBA qualifications. She also stated that Sujithra had married twice and had divorced both the times, and that she was not interested in getting married again. She deposed that Sujithra had a desire for a child and used to enquire about artificial insemination. She also stated that she had a discussion with PW1 about a feature in a magazine on the subject. PW7, who was working as an Inspector of Police, Kollam Vigilance Unit, was a classmate of the deceased. He, along with the deceased, had studied Pre-degree and Degree. In his evidence, he deposed that on 18.03.2020 he had spoken to her through phone at about 11.00 a.m., 03.00 p.m., 04.00 p.m. and 05.00 p.m. and that the last two calls were regarding artificial insemination and its legality. In cross-examination, he stated that he admitted have called Sujithra in the morning on 17.03.2020. He also stated that Sujithra had informed him that he had gone to the child weaning ceremony of Prasanth's child and that he was not aware of the legality of artificial insemination. From the evidence of PW7, it is evident that the deceased was alive on 18.03.2020 and the subject of artificial insemination was alive in her mind even when she was residing with the appellant in his house at Palakkad. The appellant had been given constant assurances to the deceased that he would be with her all through her life and provide all kinds of emotional and physical support.
(viii) The internet searches on 20.03.2020:
37. In order to establish the said fact, the prosecution has examined PW27 (Prathap. P), who was the ASI, City Cyber Cell, Kollam. He stated in his evidence that on 22.04.2020, the Investigating Officer had handed over the mobile phone of the accused in Crime No. 259 of 2020 of the Kottiyam Police Station. On examination, he found that the WhatsApp account connected to the said phone had been deleted and uninstalled. He also found that the Facebook account had also been deleted. He found that a new WhatsApp account had been commenced using the mobile number starting with ‘799’. Thereafter, he accessed the e-mail account of the accused, connected to the e-mail prasanthnambiar@gmail.com using the password furnished by the accused himself. On 22.04.2020, he downloaded the data. He found that on 20.03.2020, the appellant conducted a search on infertility and he had also searched with the phrases “Sadguru girl friend”, “Sadguru killed his wife” and “Nirbaya case”. He stated that on 27.04.2020, the Investigating Officer produced the accused before the Cyber Cell. The accused examined his Facebook account using the computer maintained at the Cyber Cell office itself. One account could not be opened. The data from the first Facebook account was downloaded, and the officer found that the name of the account was ‘Ramu K.’ and the registration date was 09.06.2014. On its basis, Ext.P49 report was submitted to the Investigating Officer. He also stated that the appellant had changed his Facebook account on numerous occasions. He also gave evidence that on 20.03.2020 at 09:33 a.m., the appellant changed the name of his Facebook account, and on 04.04.2020 the account was deleted. The witness stated that since 30 days had not crossed, after the deletion of the account, he was able to open the account. On 09.04.2020, the appellant opened a fresh account using phone number 8281966587. On 10.07.2020, the Investigating Officer produced before him PW6 Sudeesh Nair. Since the witness stated that he had recorded the audio transcript of the telephone conversations between Prasanth and himself, the same was copied into a write-protected CD. He identified MO13 CD and stated that Ext.P50 is a certificate issued under Section 65B of the Indian Evidence Act.
37.1. PW40, the Assistant Director, State Forensic Science Lab, has deposed that Annexure-A1 to Ext.P93 report relates to the e-mail ID prasanthnambiar 009@gmail.com with password prasanth@123. She stated that the activities of the mail ID from 01.03.2020 to 20.04.2020 were retrieved. The hard copy enclosed with the report bearing page numbers 1 to 85 were marked as Ext.P93(a). She stated that page number 7 of the report refers to a search on 20.03.2020 on “Sadguru killed his wife”. Page 8 refers to a search on 20.03.2020 between 05.00 p.m. and 06.00 p.m. on “how age matters for your fertility” followed on the same date by a search on ”extentfertility.com”. These were separately marked as Ext.P93(a)(i) and (ii). The significance of the search history is that, as per the prosecution allegation, the murder was committed at 06.30 p.m. on 20.03.2020. The search would therefore fall in the hour immediately prior to the killing.
37.2. The above search history would reveal that on 20.3.2020 the appellant had carried out searches on his computer relating to murder and infertility.
(ix) The phone of the deceased had last functioned at Manali:
38. PW1, the mother of Sujithra, stated that she spoke to her daughter on 17th, 18th and 19th of March, 2020. According to her, she last spoke to her daughter at 09.30 a.m. on 20.03.2020. She stated that she again called her daughter at 06.45 p.m. The phone rang thrice, and thereafter it went off. PW2 stated that she called at 08.30 p.m. on 20.03.2020 and found that the phone was switched off. PW5 stated that she spoke to the deceased at about 02.00 p.m. on 20.03.2020 and enquired about the phone number of a dentist. She stated the deceased had told her that she would return on 22.03.2020 as she had already booked a railway ticket. When PW5 called at night, he found that the phone was switched off. PW3 stated that he had called continuously on 21st and 22nd of March, but the phone was found switched off.
38.1. PW42, the Investigating Officer, stated that he had collected and seized the railway ticket as per Ext. P131 inventory. The said ticket reveals that the deceased had reserved a ticket for a return journey from Palakkad to Kollam on 22.03.2020. The said ticket reveals that Sujithra was at Palakkad. Furthermore, Ext.P85 series Call Data Records of Vodafone, phone bearing number ‘7559926749’ for 01.01.2020 to 28.04.2020 which was proved by PW38 with Ext.P90, Ext.P91 Tower Decode List and Ext.P103 Analysis established that until 18:54:29 on 20.03.2020, the tower location of Sujithra Pilla was at Manali, Palakkad. Thereafter, there was no activity on that phone. The records also reveal that there was no call from that phone after 07.00 p.m. on 20.03.2020. PW32, the Sub-Inspector of Police, Kottiyam Police Station deposed that the investigation conducted by him through the Call Data Records enquiry on the missing person FIR had also revealed that the phone of Sujithra Pillai was switched off at Manali, Palakkad. The aforesaid evidence tendered by PW1, PW42 and the call data records clearly establishes that the phone of Sujithra Pillai was switched off at Manali at about 06.54 p.m. on 20.03.2020.
(x) Motive: The fear of exposure:
39. The evidence of PW-4 (Chithra Pillai) establishes that the appellant was married to Arathy and had an infant son, that he was a music instructor of repute, and that his wife and child were staying at Kottiyam with PW-4. It is not in dispute that the deceased had married twice, that both marriages ended in divorce, and that she desired a child. The relationship between the appellant and the deceased was, on the evidence already discussed, conducted in secrecy.
39.1. The clandestine character of the relationship is borne out by the chats. The appellant messaged the deceased that a person came near him while he was messaging on Facebook, instructed her to wear black clothing, and stipulated that they should enter his house before 4.30 a.m. and leave before 4.00 a.m. so that no one would notice and because his friends did not know where he lived. The secrecy was thus not incidental but deliberate and sustained.
39.2. PW-6, the appellant's neighbour at Manali, corroborates two matters of significance. First, he deposed that on 18.03.2020 he saw a car standing at the appellant's house, which is consistent with the presence of the deceased there from the night of the 17th, as spoken to by the last-seen and telecom evidence. Second, he fixed the date of a later incident by reference to his Sabarimala vow. He removed the sacred Ayyappa Mala on 21.03.2020, and it was on that day, the day following the death of the deceased, that the appellant came to a gathering at his house. Though the appellant was not invited, he insisted on coming and despite being a teetotaller demanded liquor. PW-6 procured wine for him through a friend, which the appellant drank before leaving. The conduct of a non-drinking man, tense and pressing for drink on the day after the killing, is a circumstance the prosecution is entitled to rely upon. PW-6 also spoke to the recorded conversation with the appellant in his phone, which was proved with a certificate under Section 65B and played in open court. In cross-examination it was elicited that the appellant performs strenuous workouts in the gymnasium and lifts heavy weights. This is an aspect consistent with the physical capacity required to overpower the deceased and to deal with the body in the manner established.
39.3. Motive, in a case resting on circumstantial evidence, is a circumstance of corroborative value, and it is not to be equated with proof of the offence. Here the material discloses a sufficient and probable motive. The appellant, a married man of good repute with an infant child, was conducting a secret relationship with the deceased, who was pressing for a child with him. His concern, borne out by the studied secrecy of the relationship, was that its disclosure would imperil his matrimonial life. We are conscious that motive is but one link and derives its force from the circumstances with which it stands.
(xi) Last seen in the company of the appellant:
40. To establish this the prosecution relies principally on PW-8 Riyas, an autorickshaw driver of the Mulluvila stand, supported by the telecom evidence.
40.1. PW-8 deposed that on 17.03.2020 between about 4.00 and 4.30 p.m., while his auto was at the Mulluvila stand, he took a lady to Supreme Bakery, Pallimukku. While he was turning the vehicle a second lady, in black pants and spectacles with a handbag on her left shoulder, hired him. On the way, before they had reached Ayathil signal, she attended a call . She was heard saying that she was reaching the place and that no one had noticed her. This tenor of conversation struck PW8 as unusual and made him attentive. At Kallumthazham junction she directed him about 300 metres further along the bypass and he found that a black Alto car with the registration number starting KL-51 parked on the left. The lady asked the witness to stop the vehicle in front of the car. He demanded Rs. 80 but the lady gave him Rs. 100 and did not demand the balance. She hurried to the car and entered by the front door. He looked at the driver who was a fair man with a beard. As the car moved forward the witness and the car driver exchanged a glance. About 40 to 45 days later he saw reports in the newspaper and on Facebook of a woman from Kollam whose body had been cut and charred at Palakkad, and identified from the photographs both the lady as his passenger and the man as the driver. Fearing interrogation he did not at first come forward, but on learning that the police were looking for the driver who had taken a lady from Supreme to Kallumthazham, he approached a social worker, Sajeevan, and went to the Crime Branch. In court, he identified the appellant in the dock, observing that he had a beard when seen on 17.03.2020 but not now. He identified Ext. P4 series as the photographs of the lady and Ext. P17 as the photograph of the man. He also identified MO-14, Alto car parked in the court compound, as the car into which the lady had got in.
40.2. The tracing of PW-8 was spoken to by PW-28, Sub Inspector, Kilikolloor. He stated that he was deputed to trace the autorickshaw and enquired during May and June 2020 at the Madan Nada, Pallimukku, Mulluvila and Pazhayattinkuzhy stands. He contacted drivers and Union office-bearers and left word for the driver to contact the Assistant Commissioner.
40.3. MO-14, the Alto bearing Reg. No. KL-51/B 4404, was seized from the appellant by PW-32 under Ext. P71 seizure mahazar and the same was produced in court. The car was examined by PW-42 in the presence of a Scientific Officer under Ext. P113 mahazar. Ext. P115 mahazar was prepared on the spot from which the appellant took the deceased, near the Bhadrakali Temple at Kallumthazham junction.
40.4. The ocular evidence is corroborated by the telecom records. Ext. P103 establishes two calls from the appellant's phone to that of the deceased on 17.03.2020, at 16:46:17 and at 16:59:03. At that time the tower of the deceased's phone was at the Ayathil bypass, the very stretch where PW-8 had set her down, and that of the appellant was nearby at Moonnamkutty. Both these places are close to each other. Thereafter, on the call details and the tower decode, both phones moved together in the same direction towards Manali, Palakkad, where the deceased's phone remained until it fell silent at 18:54:29 on 20.03.2020. This is supported by Ext. P59, the GPRS data of the appellant's number for the period 17.03.2020 to 21.03.2020, certified by Ext. P60, and by the tower decode lists Exts. P64 and P91. The remark overheard by PW8, that she was reaching and that no one had noticed her, corresponds to the appellant's instruction in the chats that she should come unnoticed, which lends further assurance that the woman PW-8 carried was the deceased proceeding to the appellant.
40.5. Furthermore, the circumstance under which the attention of PW8 was drawn to the passenger and the driver lends reliability to his evidence. His attention was evoked when he overheard the remark that no one had noticed her. He had also noticed the registration of the car starting from KL-51 series, and identified that it was not a local car. He had also noted the appearance of the driver and they exchanged glances. The evidence adduced by the prosecution stands corroborated by the Call data records and tower decode list as per which the two phones were placed together at the place of the drop, and by the recovery of MO-14 from the appellant.
(xii) Recoveries at the instance of the appellant.
41. On 29.04.2020, immediately after the arrest of the appellant and while being in police custody, the appellant is stated to have made a disclosure that he would point out the place where the dead body had been buried. Pursuant to the said disclosure statement, which was marked as Ext. P25(a), the appellant led the police party to the marshy property situated adjacent to the western side of the compound wall of the house. Acting on the information furnished by the appellant, the police removed the soil, bricks, and stones from the spot identified by him. As the excavation progressed, a strong smell of decomposition emanated from the pit, and the dead body was exhumed. Following the recovery of the body on the basis of the disclosure made by the appellant, the recovery and seizure were recorded under Ext. P-25 recovery mahazar.
41.1. PW-13 (Smithesh), the Councillor of Ward XII, deposed that he reached Sree Ram Colony after being informed by local residents. He saw the appellant alighting from a police vehicle and thereafter pointing out a specific spot behind the house. He further stated that, after the soil was removed from the place identified by the appellant, a dead body was recovered. He identified his signature in Ext. P-25 and also identified the appellant before the Court.
41.2. In Bodhraj Alias Bodha v. State of Jammu and Kashmir ([(2002) 8 SCC 45]) , the question as to whether evidence relating to recovery is sufficient to fasten guilt on the accused was examined at length. The Apex Court held that for evidence under Section 27 to be admissible, the information must emanate from an accused who is in police custody. The Hon’ble Court elucidated that the basic idea embedded in Section 27 is the doctrine of confirmation by subsequent events - when a fact is discovered on the strength of information obtained from a prisoner, such discovery serves as a guarantee of the truthfulness of the information supplied. The Hon’ble Court further observed that whether the information is confessional or non-inculpatory in nature, if it results in the discovery of a fact, it becomes reliable information. Significantly, it was held that the mere recovery of an object does not constitute the discovery of fact envisaged in the section. Relying on the Privy Council's decision in Pulukuri Kottayya v. King Emperor ([AIR 1947 PC 67]) , the Apex Court held that the “fact discovered” embraces not merely the object recovered, but the place from which the object was produced and the knowledge of the accused as to its existence, and that the information given must relate distinctly to that effect.
41.3. In State of Maharashtra v. Suresh ([(2000) 1 SCC 471]) , it was observed as follows:
“Three possibilities are there when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by him. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.”
41.4. In the present case, the information given by the appellant while in Police custody distinctly relates to the fact discovered, namely, recovery of the dead body of the deceased from the property lying adjacent to his residential home. This constitutes a “distinct fact” as contemplated under Section 27 of the Evidence Act, as the recovery of the body from that precise location could only have been made on the basis of information furnished by someone who had personal knowledge of its disposal. The recovery embodies the “doctrine of confirmation by subsequent events” as explained in Bodhraj (supra). The fact discovered embraces the place from where the object was recovered and the knowledge of the appellant as to its existence at that location. The above circumstance constitutes a formidable link in the chain pointing towards the culpability of the appellant. When this circumstance is read together with the DNA evidence identifying the exhumed body as that of the deceased and the postmortem findings establishing that the death was homicidal, it forms a strong incriminating circumstance connecting the appellant with the concealment and disposal of the dead body.
41.5. On the same day, during the course of interrogation, the appellant is stated to have made a further disclosure that he would identify the emergency lamp kept inside the house. Pursuant to the said disclosure statement, marked as Ext. P23(a), the appellant led the police party to the bedroom of the house. A scene mahazar was prepared, and the MO-15 emergency lamp was recovered and seized under Ext. P23.
41.6. PW-12 (Prabhakaran) an independent attesting witness, deposed that he knew the appellant as the tenant of the house belonging to his sister, Rekha. He stated that on 29.04.2020 he saw the police entering the house along with the appellant and, at the request of the police, accompanied them inside. He witnessed the seizure of the emergency lamp and identified it before the Court as MO-15.
41.7. The recovery of MO-15 assumes considerable significance in the prosecution case because its electrical cord is alleged to have been used as the ligature for strangulating the deceased. The evidentiary value of this recovery is strengthened by the testimony of PW-19, who identified the partly burnt cable, MO-21, recovered subsequently, as the cord belonging to this very emergency lamp and opined that it was capable of causing the ligature abrasion found on the neck of the deceased. Thus, the recovery of the emergency lamp directly links the alleged instrument of strangulation to an article recovered from the appellant's own bedroom, providing important corroboration to the prosecution case.
41.8. On the same day itself, at 4.00 pm, the appellant is stated to have disclosed that he would point out the place where the burnt remains of the belongings of the deceased had been concealed. The appellant is stated to have led the police party through a small gate situated behind the house to an adjoining property where charred remains were found. From among the burnt remains, a spectacle frame (MO-16) and certain buttons were recovered and seized under Ext.P24.
41.9. PW-12, the independent attesting witness, deposed that after the police party came out of the house, the appellant led them to the rear portion of the property and pointed out the burnt remains. He stated that a spectacle frame was recovered from the said place and seized as MO-16, and he identified the seizure mahazar as well as the recovered article before the Court.
41.10. The presence of burnt remains at the place led by the appellant supports the prosecution allegation that the belongings of the deceased were burnt in an attempt to destroy evidence. The recovery of the spectacle frame assumes importance in the light of the testimony of PW-8, who categorically deposed that the woman whom he dropped near the Alto car on the relevant day was wearing spectacles. It does not however appear that the spectacles were shown to either PW1, 3 or 5 and identified. We are of the view that in light of the recovery of the body, the recovery of the spectacle frame from the burnt remains at the instance of the appellant is consistent with the prosecution case. It has come out that the articles recovered formed part of the belongings of the deceased and corroborates the evidence relating to the last seen circumstance.
41.11. On 04.05.2020, an application was filed to get the appellant in police custody. On the next day, i.e., on 05.05.2020, the appellant is stated to have made a disclosure that he would point out the place where he had concealed the spade used for digging the pit. On the strength of Ext. P31(a) disclosure statement, the appellant led the police party to a plot situated adjacent to the Anganwadi. After the bushes covering the area were cleared, MO-18 spade, stated to have been used for digging the pit to bury the mutilated body, was recovered from the place shown by the appellant. Ext. P-31 seizure mahazar was prepared by PW42 evidencing the same. P.S. Varghese (PW-18), the Revenue Recovery Special Tahsildar, who had been deputed by the District Collector to witness the recoveries stated that he reached the scene at about 11.30 a.m. on the instructions of the District Collector. According to him, the appellant pointed out the place in the compound along the southern boundary where the spade had been concealed. The bushes were removed, the spade was recovered from the said place, and it was seized under Ext. P-31. He identified both MO-18 and his signature in the recovery mahazar before the Court. This recovery derives considerable corroborative value from the scientific evidence on record. The soil examination report, Ext. P-77, proved through PW-36, revealed that the soil adhering to the spade (Item No. 25, MO-30) was partially similar to the control soil collected from the burial site (Item No. 15, MO-29). The recovery, therefore, substantially corroborates the prosecution case that this was the implement used for digging the grave in which the body of the deceased was buried.
41.12. On 05.05.2020, at about 12.30 p.m., the appellant is stated to have made a further disclosure that he would point out the place where he had concealed the gold ornaments belonging to the deceased. On the strength of Ext. P-32(a), the appellant is stated to have led the police party to the western side of the wall separating the northern compound from the house compound. He pointed out a stone covering a small pit, removed the stone himself, and took out a plastic cover (MO-19) containing a gold chain, a bangle, and a ring (MO-7 to MO-9) and they were recovered and seized as per Ext. P-32 mahazar.
41.13. The recovery is spoken to by PW-18, P.S. Varghese, the independent attesting witness, who narrated the entire recovery in detail. He deposed that it was the appellant himself who lifted the stone covering the pit and took out the plastic cover containing the ornaments. He identified the recovery mahazar as well as the recovered articles before the Court. PW-1, the mother of the deceased, identified MO-7 (chain), MO-8 (bangle), and MO-9 (ring) as the very ornaments worn by her daughter for more than five years and stated that she had seen the deceased wearing them when she left home on 17.03.2020. This is one of the most incriminating recoveries in the prosecution case. The ornaments belonging to the deceased, which she was wearing when she left her house on 17.03.2020, were recovered from a concealed pit situated within the appellant's compound and were produced by the appellant himself pursuant to his disclosure statement. The recovery directly supports the prosecution allegation that, after causing the death of the deceased, the appellant dishonestly retained and concealed her valuables, thereby attracting the offence punishable under Section 404 IPC. The concealment of these ornaments, instead of their destruction or disposal, also explains why they remained available for recovery, unlike certain other articles such as the knife and the mobile phone, which could not be recovered despite subsequent searches.
41.14. On 5.5.2020 at 16.30 hours on the basis of P-34(a) disclosure statement furnished by the appellant, and as led by him the police reached Raghavendra Nagar, Thottupalam, situated about three kilometres away from the house where the appellant concealed the petrol can used to purchase petrol. The appellant is stated to have pointed out a can (MO-20), which was recovered and seized under Ext. P-34. When the can was opened at the scene, it emitted a strong smell of petrol.
41.15. P.S. Varghese (PW18), the independent attesting witness, stated that the appellant himself led the police party to the place where the can had been concealed and identified it. He further stated that, when the can was opened, a strong smell of petrol emanated from it. He identified the recovery mahazar as well as the seized article before the Court.
41.16. On 09.05.2020, while in police custody, the appellant is stated to have made a further disclosure that he would point out the place where he had discarded certain articles belonging to the deceased, including the ligature used in the commission of the offence. On the basis of Ext. P-35(a) disclosure statement, the appellant is stated to have led the police party to a canal running parallel to the Palakkad Chittoor Bypass, near Saradhapeedam Temple, Chandranagar. As pointed out by the appellant, the police recovered a partly burnt cable (MO-21), the make up articles (MO-1 to MO-6), and a hair band, from the said canal as per Ext. P-35.
41.17. P.S. Varghese (PW18), the independent witness, stated that the appellant led the police party to the canal and pointed out the place from where the articles were recovered. He identified the recovered articles as well as his signature in Ext. P-35. PW-1, the mother of the deceased, identified the make up articles (MO-1 to MO-6) and the hair band as those belonging to her daughter. She further deposed that these were the very articles she had packed in the maroon bag on 17.03.2020 before sending her daughter through PW-5.
41.18. This recovery furnishes important corroboration to the prosecution case. MO-21, the partly burnt cable, assumes considerable significance because PW-19 identified it as the ligature capable of causing the ligature abrasion found on the neck of the deceased. PW-19 further opined that MO-21 was the electrical cord of MO-15, the emergency lamp recovered earlier from the appellant's bedroom pursuant to Ext. P-23(a). The recovery of MO-21 from the place pointed out by the appellant, therefore, establishes a vital link between the ligature used in the commission of the offence and the emergency lamp recovered from inside the appellant's house. Equally significant is the recovery of the make up articles and the hair band. Their identification by PW-1 as the very articles packed by her for the deceased's journey on 17.03.2020 establishes that the personal belongings of the deceased ultimately came into the possession of the appellant and were thereafter discarded at a place disclosed exclusively by him. The recovery thus corroborates the prosecution case regarding the movements of the deceased after she left her house, the continuity of possession of her belongings with the appellant, and the subsequent attempt to destroy or dispose of those articles after the commission of the offence.
41.19 However, it is pertinent to note that the knife as well as the chopper stated to have been thrown by the accused to the nearby property could not be recovered despite an extensive search. The area was thoroughly searched after the bushes were cleared, with the assistance of a metal detector and a JCB, but no weapon was recovered. This fact is evident from Ext. P-36. PW-42 has also deposed regarding the unsuccessful search conducted at Nadathara, Thrissur, pursuant to the information furnished by the accused, as evidenced by Ext. P-117(a). We are of the view that such circumstance indicates that the prosecution has not selectively presented only successful recoveries while suppressing unsuccessful ones. Such disclosure lends a measure of credibility to the prosecution version.
(xiii) Forensic Corroboration of the recoveries:
42. PW-39, Priya Mary Chacko, Scientific Officer, DNA Division, State Forensic Science Laboratory, Thiruvananthapuram, deposed that on 14.07.2020 she received, through the Judicial First Class Magistrate Court-II, Kollam, a parcel containing 45 sealed packets through the court messenger, Thahakoya. She categorically stated that all the seals were intact and that they tallied with the specimen seal impressions forwarded along with the forwarding note. After conducting DNA analysis, she issued Ext. P-92 report.
42.1 She said that item No.10 in Exhibit P92 consisted of a portion of the sternum, Item No.11 the femur bone, and Item No.12 the skull with the lower jaw, all collected during Postmortem. Item No.41 was the blood sample of PW-1, Vijayalakshmi, the mother of the deceased. On DNA profiling, PW-39 concluded that Items 10, 11, and 12 originated from one and the same individual and that the said individual was the biological daughter of PW-1, Vijayalakshmi. This scientific evidence conclusively establishes that the body recovered from the burial pit at the instance of the appellant was that of the deceased.
42.2. In addition to identifying the body, Ext. P-92 also examined several articles recovered during the investigation. Item No.34 was the bed-sheet (MO-17) recovered pursuant to the disclosure statement Ext. P-27(a) and seized under Ext. P-27. Item No.37 corresponds to the gold chain (MO-7) and Item No.36 to the gold bangle (MO-8). Both these items were recovered pursuant to the disclosure statement Ext. P-32(a) from the concealed pit inside the appellant's compound. PW-39 further deposed that Items 35 and 36 in Exhibit P92 contained the cells and biological stains of the deceased. Thus, the biological material of the deceased was detected on the recovered articles examined by the laboratory. These analysis reports read along with the DNA evidence establishing the identity of the body, scientifically links the recovered articles with the deceased and thereby lends independent corroboration to the recoveries effected at the instance of the appellant.
42.3. PW-35 (Divya Prabha), Assistant Director, Chemistry Division, State Forensic Science Laboratory, deposed that she received the exhibits from the DNA Division with the seals intact and tallying with the specimen seal impressions. After chemical examination, she issued Ext. P-76 report. The report records that traces of petrol were detected in Items 2, 4, and 28. Item No.28 corresponds to the petrol can (MO-20) recovered pursuant to the disclosure statement Ext. P-34(a). Item No.4 was the cotton gauze swab collected from the chest of the deceased during the postmortem examination. Item No.2 was a piece of newspaper forwarded by the postmortem doctor for examination. The report further records the detection of carbon particles on Item No.5, namely the nighty (MO-10) worn by the deceased. The above scientific findings furnish strong corroboration to the prosecution case. The detection of petrol residues in the petrol can recovered at the instance of the appellant and simultaneously on the swab collected from the body establishes a direct forensic connection between the recovered can and the burning of the deceased. The presence of carbon particles on the nighty further confirms that the body had been subjected to burning.
42.4. PW-36, Jeesha K.S., Scientific Officer, stated that she received the exhibits through internal forwarding from the DNA Division on 08.02.2021. She deposed that the seals were intact and tallied with the specimen seal impressions before examination. After conducting soil analysis, she issued Ext. P-77 report. She stated that as per the report the soil contained in Items 13 and 14 was dissimilar to the control soil collected from the burial site. However, soil partially similar to the control sample (Item No.15) was detected on Item No.25, which represented the soil adhering to the spade (MO-18/MO-30) recovered pursuant to Ext. P-31(a) disclosure statement. Although the report records only a partial similarity and not an identical match, the finding assumes considerable significance because the spade itself was recovered solely on the basis of the disclosure made by the appellant. The scientific examination therefore lends independent corroboration to the prosecution case that the recovered spade was the implement used for digging the grave in which the body of the deceased was buried.
42.5 The recovery of the ornaments receives scientific corroboration from the DNA examination. It was stated by PW-39 in Ext. P-92 that Item No. 36, namely the gold bangle corresponding to MO-8, was found to contain cells and biological stains belonging to the deceased. The presence of the deceased's biological material on the bangle conclusively establishes that MO-8 had been worn by, or had come into direct contact with, the person of the deceased. This scientific evidence forges a vital link between the ornament recovered at the instance of the appellant from the concealed pit within the compound of his residence and the deceased.
42.6. The recoveries in the present case do not rest merely upon the disclosure statements of the appellant. They receive substantial and independent corroboration from scientific evidence. The DNA examination conclusively establishes that the exhumed body was that of the deceased and further detects the biological material of the deceased on the recovered articles examined by the laboratory. The chemical examination establishes the presence of petrol both in the recovered petrol can and on the body of the deceased, thereby connecting the recovered can with the burning of the body. The soil examination establishes a partial similarity between the soil adhering to the recovered spade and the control soil collected from the burial site, thereby connecting the recovered implement with the grave. Thus, each significant recovery effected pursuant to the disclosure is independently supported by objective scientific evidence. This convergence of disclosure evidence with DNA analysis, chemical examination, and soil comparison considerably strengthens the evidentiary value of the recoveries.
(xiv) The false explanation under Section 313
43. Before dealing with this circumstance, it would be apposite to understand the principles of law concerning the subject. In Trimukh Maroti Kirkan v. State Of Maharashtra ([2006 10 SCC 681]) , it was observed as under:
"In a case based on circumstantial evidence where no eyewitness 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 Court. [See State of T.N v. Rajendran (1999) 8 SCC 679 (SCC para 6)]"
43.1. Where the prosecution establishes that the accused and the deceased, who were in a close relationship, were last seen together, or that the deceased was taken to the dwelling house occupied by the accused, and the mutilated body of the deceased is thereafter recovered from the house or from property immediately adjoining or appurtenant to it, the law casts a corresponding burden on the accused to furnish a plausible explanation as to how the deceased met with her death or how the body came to be found at such a place. If the accused fails to offer any explanation, or if the explanation offered is found to be demonstrably false or inherently inconsistent with the proved circumstances, such conduct constitutes a highly incriminating circumstance. Though the falsity of the explanation cannot, by itself, take the place of proof, it provides an additional and important link in the chain of circumstantial evidence and strongly reinforces the prosecution case that it was the accused who committed the crime and thereafter attempted to conceal its evidence.
43.2. 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.
43.3. 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 was 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.
43.4. The explanation offered by the appellant under Section 313 Cr.P.C. does not merely consist of a bare denial of the prosecution case. On the contrary, he has put forward a positive and detailed version of events. It therefore becomes necessary to examine whether the explanation finds support from the evidence on record or whether it stands contradicted by the prosecution evidence, the documentary evidence, the scientific evidence, and even his own prior conduct.
43.5. The principal defence of the appellant is that the sum of ₹2,50,000 received from the deceased was only a loan advanced to enable him to purchase a piano. According to him, he had preserved the entire amount in cash with the intention of returning it to the deceased and had not utilised any portion thereof. This explanation, however, is not borne out by the evidence on record. The financial transactions proved through Exts. P-20 and P-133 reveal that the money was not transferred as a single payment towards a specific loan. On the contrary, the amount reached the appellant through several transactions spread over different dates. The evidence shows that ₹2,00,000 was transferred on 03.03.2020, ₹1,00,000 on 06.03.2020, followed by several UPI transfers on different dates during March.
43.6. The internet messages between the appellant and the deceased further reveal that, even after receiving substantial amounts, the appellant continued requesting additional money, including amounts towards house rent and other personal expenses. Such repeated requests are wholly inconsistent with the theory of a one time loan advanced solely for the purchase of a piano.
43.7. Equally difficult to accept is his assertion that he had preserved the entire amount with the intention of returning it. After having sought financial assistance from the deceased for meeting his rent and day to day expenses , it would be difficult to believe that he was keeping at home ₹2,50,000 in cash without utilising any part of it. The appellant has also described the transaction as a loan. The messages exchanged do not disclose any discussion regarding repayment, interest, or any terms ordinarily associated with a loan transaction. On the contrary, the communications disclose a continuing financial relationship in which the deceased repeatedly transferred money to the appellant on his requests.
43.8. The appellant denied that the deceased travelled with him to Palakkad on 17.03.2020, that she stayed in his house, or that he took her in his car at any point of time. This denial goes against the emphatic evidence let in by the prosecution. PW-8, an independent witness, identified the deceased as his passenger, identified the appellant as the bearded driver of the Alto car, and identified MO-14 as the vehicle in question. The call detail records contained in Ext. P-103 further establishes that the mobile phones of the appellant and the deceased moved together from Ayathil towards Manali on the relevant day, whereafter the deceased's mobile phone became inactive.
43.9. The appellant's denial is rendered still more untenable by his own earlier conduct. As already discussed while appreciating the evidence of PWs. 2, 4, and 9, the appellant had informed the relatives of the deceased that she had travelled with him to Palakkad, stayed at his house, and was subsequently dropped near the Thrissur Bypass along with one "Ramdas". This explanation was furnished when the investigation in connection with the “woman missing” case was going on. There was overwhelming evidence in the form of call data records and tower decode details and when the same was confronted to the appellant, he was forced to admit that they had travelled together, that the deceased had stayed in his house till 20.3.2020 with another man and left by asking him not to call her. As the deceased was a divorcee and as she had stated that she was going for a training to Ernakulam, the relatives believed his version. Only when more details in the form of chat extracts came out that the true nature of the relationship came out in the open. The explanation now offered under Section 313 Cr.P.C. is therefore inconsistent not merely with the prosecution evidence but with the appellant's own earlier version of events. Such a material contradiction substantially undermines the credibility of his defence.
43.10. The denial of the accused in his statement that the deceased had ever visited his house is wholly irreconcilable with the recovery of her dead body from the marshy land adjoining the compound of that very house. If, as now contended, the deceased had never travelled to Manali or entered his house, there is no plausible explanation as to how her body came to be buried within the compound pointed out by the appellant.
43.11. The appellant has further alleged that the police manipulated the contents of his mobile phone after taking it into custody. This allegation also does not withstand scrutiny. The prosecution case regarding the relationship between the appellant and the deceased, the financial transactions, and the movements of the deceased does not depend solely upon the appellant's handset. The WhatsApp conversations were extracted from the deceased's mobile phone, the Messenger conversations and Google account history were recovered from her cloud accounts, the conversations with PW-3 were obtained from PW-3's own mobile phone, and the call records were secured directly from the service providers. These independent electronic records remain unaffected by any allegation regarding the appellant's mobile phone.
43.12. The appellant has also denied every recovery allegedly effected pursuant to his disclosure statements, contending that all the material objects were planted by the police. This sweeping allegation is difficult to accept in the face of the evidence on record. The recoveries have been consistently spoken to by independent witnesses, namely PW-12, PW-13, and PW-18, and several of the recovered articles have received independent scientific corroboration. The DNA analysis established the presence of the deceased's biological material on the recovered articles. The chemical examination detected petrol residues both in the recovered petrol can and on the body of the deceased, and the soil examination linked the recovered spade with the burial site. These objective scientific findings substantially reinforce the prosecution version and render the allegation of wholesale fabrication highly improbable.
43.13. The appellant has also attempted to contend that, having undergone surgeries on his hand and leg, he was physically incapable of performing strenuous work. This plea is inconsistent with the medical evidence as well as the evidence elicited during trial. PW-16, who examined the appellant, found only old healed surgical scars and specifically stated that there was no impairment affecting the joints or surrounding muscles. Furthermore, during the cross examination of PW-6, the defence itself elicited that the appellant regularly attended a gymnasium and engaged in strenuous workouts involving heavy weights. The plea of physical incapacity is therefore not borne out by the evidence on record.
43.14. The appellant has also sought to suggest that the deceased suffered from mental and physical issues and maintained friendships with several other persons. These assertions find no support whatsoever from the evidence adduced during trial. No such suggestion was put to any material prosecution witness, nor is there any independent evidence substantiating these allegations.
43.15. Finally, while explaining the message sent by him to PW-3 on 12.04.2020, the appellant stated that he sent it because he felt guilty about maintaining a close relationship with the deceased and having borrowed money from her. This explanation is a clear admission of the close relationship and the financial dealings between the appellant and the deceased, which corroborates the case of the prosecution.
43.16. It is well settled that a false explanation offered by an accused cannot by itself substitute proof of the prosecution case. However, where the prosecution has independently established a complete chain of incriminating circumstances, a false explanation under Section 313 Cr.P.C. constitutes an additional link in the chain of circumstances. In the present case, the explanation offered by the appellant is not merely unsupported but is affirmatively contradicted by independent witnesses, documentary evidence, scientific reports, and, in certain respects, even by his own earlier conduct. These false and inconsistent explanations therefore furnish an additional circumstance reinforcing the prosecution case already established by the evidence on record.
VII Consideration of the contentions
(i) Alleged manipulation of the electronic evidence:
44. One of the contention advanced by the learned counsel appearing for the appellant is that the call data records, and internet chat messages have been manipulated. It is also contended that the chat conversations between the appellant and his wife was also brought in evidence though the same is protected under Section 122 of the Indian Evidence Act.
44.1. The WhatsApp chats between the appellant and the deceased were extracted by PW-40 at the Forensic Science Laboratory from the counterpart handset using the Cellebrite forensic tool, and not from the appellant's phone at the police station. Likewise, the Facebook Messenger conversations and the deceased's Google account data were retrieved by PW-31 by reviving and accessing the deceased's own cloud accounts. The WhatsApp chats between the appellant and PW-3 were recovered from PW-3's own mobile phone, MO-11, which remained in his exclusive custody until he voluntarily surrendered it to the investigating agency. PW-3 himself certified the correctness of those chats under Ext. P-11. The call detail records and tower location data were obtained directly from the respective service providers through their nodal officers. Similarly, the banking transactions were proved through records produced by the concerned banks. In other words, every important circumstance, namely the relationship between the appellant and the deceased, the financial transactions, the planning preceding the occurrence, and the search history, stands established through multiple independent sources. Consequently, even if the appellant's seized mobile phone were to be completely excluded from consideration, the prosecution case would still remain fully supported by evidence that originated from sources entirely outside the control of the investigating agency and which never passed through the police station. An allegation of manipulation directed against one device cannot undermine evidence that has independent and mutually corroborative origins.
44.2. The WhatsApp conversations were not produced merely as a bundle of printouts. Ext. P94 pen drive was exhibited in open court by playing its contents on a laptop connected to a display screen. The WhatsApp chats were also displayed from MO-12 mobile handset itself. Every message was shown along with its date and time stamp, and all the 110 images and 106 voice notes were displayed with their respective dates of transmission. This constitutes a far stronger and more reliable mode of proof than the production of mere screenshots or printed copies. Even otherwise, if a chat thread had been manipulated, such manipulation could have been identified easily through the accompanying metadata, gaps in the conversation, wrong timestamps, broken message threading, or other visible anomalies. Since the chats were displayed from the device itself in open court, with all these details available for scrutiny, the defence had every opportunity to identify and demonstrate any such irregularity. No such anomaly or indication of manipulation was pointed out either before the learned Sessions Judge or before us.
44.3. We also find that the retrieval was carried out using an accredited forensic tool by a qualified expert, with an unbroken chain of custody. The extraction was carried out by PW40, Assistant Director of the Forensic Science Laboratory, using the Laboratory Forensic Work Station (FRED) and the UFED Cellebrite Physical Analyser, both of which are internationally recognised and widely accepted forensic tools for the extraction and analysis of digital evidence. The qualifications of PW40 and the methodology adopted during the examination are detailed in Ext. P93. PW40 further deposed that the devices were received at the laboratory in sealed packets. Before commencing the examination, she verified that the seals were intact and that they tallied with the specimen seal impressions accompanying the forwarding documents. This unbroken chain of custody effectively answers the allegation of physical tampering. Once it is established that the devices reached the laboratory in sealed covers with the seals intact, the suggestion that the contents were manipulated while they were in police custody becomes wholly untenable. The forensic tool merely extracted the data contained in the device that was produced before the laboratory.
44.4. The strongest assurance that the chats are genuine lies in the remarkable manner in which they connect with independent evidence originating from sources that the investigating agency could neither fabricate nor retrospectively alter. For instance, the WhatsApp conversations record that on 06.02.2020 money would be arranged for the purchase of a piano, and on 17.02.2020 the appellant acknowledged having received the amount. The bank records, obtained directly from the concerned banks, independently establish the corresponding debit entries from the deceased's account and the matching credit entries in the appellant's account on the relevant dates. Similarly, the chats contain discussions regarding the appellant's arrival on the night of 17.03.2020 dressed in black. PW-8, an independent autorickshaw driver with no connection to either party, deposed that he dropped a woman dressed in black near a waiting Alto car on the bypass on that very evening. The telecom tower records independently establish that the mobile phones of the appellant and the deceased thereafter moved together from that location.
44.5. In the same manner, the Google search history retrieved from the
deceased's cloud account records the searches conducted on 20.03.2020. The very same search history was independently noticed by PW-27 during his examination of the mobile phone. The consistency between these independently retrieved records further reinforces their authenticity.
44.6. It is virtually impossible to fabricate digital conversations that correspond with such precision to banking records maintained by financial institutions, the testimony of an independent witness, and location data preserved by telecom service providers. It is precisely this convergence of independent evidence that lends overwhelming assurance to the authenticity of the digital record. Furthermore, in his statement under Section 313 of the Code of Criminal Procedure, the appellant admitted the very facts that emerge from the digital evidence, namely, his relationship with the deceased and the receipt of Rs. 2,50,000 from her. The record reveals no meaningful cross examination of PW-40, PW-31 or PW-27 suggesting any specific instance of manipulation. No particular message was identified as having been altered, inserted or deleted. No challenge was raised regarding the forensic methodology, the extraction process or the integrity of the metadata. Nor did the defence produce any expert evidence to demonstrate that the electronic records had been modified in any manner. Once the prosecution has established an unbroken chain of custody, intact seals, recognised forensic methodology and multiple independent sources of corroboration, the burden shifts to the party alleging tampering to place before the Court some credible material supporting that allegation. In the complete absence of such evidence, the plea of manipulation cannot be accepted merely on conjecture or suspicion.
(ii) Spousal chats:
45. The next contention is with regard to the admissibility of Ext.P-66 series Whatsapp communications between the accused and his wife Arathy( CW5). Arathy’s phone was handed over to PW31 by the investigating officer and Ext.P-134 is the conversation analysis report based on the Ext.P-66(a). The contention of the appellant is that no reliance can be placed on the same. What the prosecution attempts to bring out through the chats is only that the appellant kept his relationship with the deceased a secret and even though he had travelled with the deceased on 17th, he did not disclose the same to his wife. Even when his wife disclosed to him that the deceased was missing, the appellant pleaded ignorance. When his wife came to know about the financial transactions and the calls in secrecy, the appellant apologised and said that he had taken the money from the deceased only because he was desirous of buying a Piano. He was also found assuring Arathy that the deceased would return and his stand that he had nothing to do with the deceased would then stand vindicated.
45.1. In the case on hand the wife of the accused was not examined in court. Section 122 of the Indian Evidence Act reads as under:
122. Communications during marriage.
No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married ; nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative-in-interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.
45.2. In M.C. Verghese vs. T.J. Ponnan(AIR 1970 SC 1876) , a three-Judge Bench of the Hon’ble Supreme Court, while dissecting the provision, held as follows:
"13. …The section consists of two branches - (1) that a married person shall not be compelled to disclose any communication made to him during marriage by his spouse; and (2) that the married person shall not except in two special classes of proceedings be permitted to disclose by giving evidence in Court the communication, unless the person who made it, or his representative in interest, consents thereto."
45.3. In Vibhor Garg v Neha (2025 INSC 829) , while referring to Verghese (supra), it was observed as under:
8.2 In the above case, this Court was dealing with a complaint of defamation by the appellant therein (Verghese). The appellant therein claimed that the respondent therein (Ponnan) had written some letters to his wife (Rathi), which contained defamatory material against the appellant. The appellant claimed to be in possession of those letters and sought to make a case of defamation based on those letters. The same was being objected to on the ground that the communication in the letters was barred under Section 122 of the Evidence Act. This Court, while ruling in favour of the appellant therein, observed as follows:
"14. A prima facie case was set up in the complaint by Verghese. That complaint has not been tried and we do not see how, without recording any evidence, the learned District Magistrate could pass any order discharging Ponnan. Section 122 of the Evidence Act only prevents disclosure in giving evidence in court of the communication made by the husband to the wife. If Rathi appears in the witness box to give evidence about the communications made to her husband, prima facie the communications may not be permitted to be deposed to or disclosed unless Ponnan consents. That does not, however, mean that no other evidence which is not barred under s. 122 of the Evidence Act or other provisions of the Act can be given.
15. In a recent judgment of the House of Lords Rumping v. Director of Public Prosecutions, (1962) All E.R. 256 Rumping the mate of a Dutch ship was tried for murder committed on board the ship. Part of the evidence for the prosecution admitted at the trial consisted of a letter that Rumping had written to his wife in Holland which amounted to a confession. Rumping had written the letter on the day of the killing, and had handed the letter in a closed envelope to a member of the crew requesting him to post it as soon as the ship arrived at the port outside England. After the appellant was arrested, the member of the crew handed the envelope to the captain of the ship who handed it over to the police. The member of the crew, the captain and the translator of the letter gave evidence at the trial, but the wife was not called as witness. It was held that the letter was admissible in evidence. Lord Reid, Lord Morris of Borth-Y-Gest, Lord Hodson and Lord Pearce were of the view that at common law there had never been a separate principle or rule that communications between a husband and wife during marriage were inadmissible in evidence on the ground of public policy. Accordingly except where the spouse to whom the communication is made is a witness and claims privilege from disclosure under the Criminal Evidence Act. 1898, (of which the terms are similar to S. 122 of the Indian Evidence Act though not identical), evidence as to communications between husband and wife during marriage is admissible in criminal proceedings.
45.4. In Appu v. State ([ AIR 1971 Mad 194]) the Madras High Court was dealing with a confession made by the appellant-accused therein to his wife which was in the presence of other witnesses. While the wife was not allowed to disclose that communication due to the bar under Section 122, it was allowed to be disclosed by the other witnesses present at the scene. The Madras High Court observed as follows:
“6. But, as observed in R. v. Donaghue [R. v. Donaghue, 1898 SCC OnLine Mad 5 : ILR (1899) 22 Mad 1] at p. 3, the communication between a husband and his wife is not protected if it can be proved without their assistance, for, in these communications there is no question of any compulsion or permission to the wife or the husband to disclose it. The section protects the individuals and not the communication of it. Viscount Radcliffe in Rumping v. Director of Public Prosecutions [Rumping v. Director of Public Prosecutions, 1964 AC 814 at p. 843] observed that such communications could be proved by some other form of testimony as that of a witness who had overheard their confidence or by the production of a letter which contained the confidence, but had passed into other hands. In other words, the law does not protect the communications as such, but only excludes the spouse from being a witness to prove it. Thus marital communications could be proved by the evidence of the over-hearers, even though the wife herself could not have been called to testify to them. The decision in R. v. Smithies [R. v. Smithies, (1832) 5 C & P 332 : 172 ER 999], R. v. Simons [R. v. Simons, (1834) 6 C & P 540 : 172 ER 1355] and R. v. Bartlett [R. v. Bartlett, (1837) 7 C & P 832 : 173 ER 362] are to this effect. In 1834-6 C and P 540, two over-hearers were allowed to prove at the trial what the husband, who was tried, had told his wife in confidence.
45.5. Going by the principles laid down above, the bar under Section 122 protects the spouse from being compelled or permitted to disclose a marital communication. It does not render the communication itself inadmissible, and it does not exclude proof of the communication by any means that does not employ the spouse as the witness. The section protects the individuals and not the communication. This is settled by M.C. Verghese (supra), which held that a marital communication may be proved by the document containing it in the hands of another. In Appu (supra), the Madras High Court, relying on the law laid down in Donaghue and of Viscount Radcliffe in Rumping (supra), held that such a communication may equally be proved by those who overheard it. In the instant case, Arathy(CW-5) was not examined, and she was neither compelled nor permitted to disclose anything. Ext. P-66 series was not obtained from her or at her instance. It was extracted by PW-31 from the device using the equipment of the Cyber Cell and proved with a certificate under Section 65B. Thus it is akin to the production of a document or letter containing the communication in the hands of another. In any event, the finding on motive does not rest on the Ext. P-66 series, being independently established by the communications between the appellant and the deceased, the banking transactions, and the evidence of PW-1, PW-4 and PW-7.
(iii) The alleged physical inability.
46. The appellant has attempted to contend that, owing to his prior surgeries, he was physically incapable of committing the acts attributed to him. PW-16, who examined him, noticed only two old, healed surgical scars and categorically deposed that there was no impairment of the joints or the surrounding muscles. The existence of old, healed scars cannot, by itself, be equated with an inability to perform strenuous physical activity.
46.1. Ext. C1, comprising the outpatient records of Kasturba Hospital, Manipal, and Ext. C2, the corresponding X-ray films, establish at best that the appellant had undergone surgery at an earlier point of time. They do not establish that, during the relevant period in March 2020, he was suffering from any physical disability that rendered him incapable of strenuous exertion. Furthermore, during the cross-examination of PW-6, the defence elicited that the appellant was a regular visitor to a gymnasium and engaged in strenuous workouts involving the lifting of heavy weights.
46.2. The prosecution has also established that the body of the deceased was recovered from within the appellant's compound, that the limbs had been severed, that a pit had been dug using the recovered spade whose soil scientifically matched the burial site, that the body had been transported and buried, and that the ornaments and personal items had been concealed and were subsequently recovered pursuant to the appellant's disclosure. These are acts requiring considerable physical effort. The chain of circumstances establishes that these acts were carried out by the appellant acting alone. Once the prosecution has established that these acts were in fact carried out, a bare assertion of incapacity, unsupported by any medical finding of functional impairment, cannot prevail.
VIII. Conclusion
47. We have tested each circumstance separately and then cumulatively. The identity of the exhumed body as that of the deceased is established beyond doubt by the DNA evidence of PW39. The homicidal nature of the death is established by the postmortem evidence of PW19. The relationship, the receipt of money and the last-seen account are established by the chats, the banking records, and the evidence of PW-8 read with the call data and tower decode. The recoveries of the body, the ornaments, the spade, the petrol can, the cable and the personal effects were made at the instance of the appellant and are corroborated by the independent attestors. They are also corroborated by the scientific findings which include the cells and stains of the deceased on the ornaments, the petrol on the can matching that on the body, and the soil on the spade matching the grave. Each of these circumstances stands fully established, and each points to the guilt of the accused. We are conscious that the falsity of the defence cannot supply a deficiency in the prosecution case, and we have therefore satisfied ourselves that the chain is complete on the prosecution's own evidence, independently of the explanation of the appellant furnished under Section 313(1)(b) of the Code. We have no doubt in our mind that the circumstances from which the conclusion of guilt is drawn have been fully established, are consistent only with the guilt of the appellant, and form a chain so complete as to leave no reasonable ground for any conclusion consistent with his innocence. Within all human probability, the act must have been done by the appellant and none else.
47.1. In view of the discussion above, we are of the view that the judgment rendered by the learned Sessions Judge, in S.C.No. 845 of 2020 on the file of the Additional Sessions Judge-II, Kollam, finding the appellant/accused guilty for the offence punishable under Sections 302, 364, 404, 201 and 297 of the IPC, does not warrant any interference.
This appeal will stand dismissed confirming the finding of guilt, conviction and sentence.
