IN THE HIGH COURT OF KERALA AT ERNAKULAM

R. BASANT & V. CHITAMBARESH, JJ.

Crl. A. No. 356 of 2007

Dated this the 22^nd day of November, 2011

Head Note:-

Indian Penal Code, 1860 - Sections 302, 376 and 201 – Rape and murder - Circumstantial evidence - the circumstances established by the prosecution do point safely and in all human probability to the conclusion that the deceased had suffered the injuries which led to her death at the hands of the appellant. The totality of circumstances must lead any prudent mind to that conclusion. There is no competing alternative theory which can arouse any reasonable doubt in the mind of the Court. The only alternative theory that because of great sensation created by the gruesome murder, the Investigating Officer and the witnesses are speaking utter falsehood against the accused, is not probable and does not in the circumstances generate any dissalutations against the prosecution case.

For Appellant:

• T.K. AJITH KUMAR
• SUSHANTH J
• P. VINODKUMAR 

For Respondent:-

• TOM JOSE PADINJAREKKARA
  

J U D G M E N T

R. Basant, J.

1. Is the chain of circumstances complete? Is a safe inference of guilt of the appellant possible from the totality of circumstances? These are the questions that arise before us in this appeal in which the appellant assails the verdict of guilty, conviction and sentence imposed on him for offences punishable under Sec.302, Sec.376 and Sec.201 of the Indian Penal Code.

2. The crux or the gravamen of the charge against the appellant is that on 08-09-2004 he caused the death of 12 year old Khairunissa, a student of the 7th Standard, after he committed rape and unnatural offence on her. He allegedly caused the evidence to disappear. He has already been found not guilty and acquitted of the charge under Sec.377 IPC. That acquittal has now become final without challenge.

3. Investigation commenced with Ext. P1 First Information Statement lodged by P.W. 1, the father of the deceased minor girl. Investigation was completed and final report was lodged by P.W. 44, the Investigating Police Officer. After complying with all statutory formalities, the case was committed to the Court of Session by the learned Magistrate. The Sessions Court thereupon took cognizance of the offence. Charges framed by the learned Sessions Judge were denied and a plea of not guilty was advanced by the appellant / accused. Thereupon the prosecution examined PWs 1 to 44 and proved Exts. P1 to P53. M.O.s 1 to 33 were also marked.

4. When examined under Sec.313 CrPC, the accused denied all circumstances which appeared in evidence and which were put to him. On his side, he examined DWs 1 and 2 and proved Exts. D1 to D7 series.

5. The learned Sessions Judge, before whom the trial was conducted, proceeded to pass the judgment dated 22-01-2007. The appellant / accused was found guilty, convicted and sentenced for offences punishable under Sec.302, Sec.376 and Sec.201 IPC. Sentence of death was imposed on him. By a common judgment dated 24-08-2006 in DSR No. 6/05 and Crl. Appeal No. 2051/05, another Bench of this Court set aside the verdict of guilty, conviction and sentence and sent the matter back to the Trial Court for fresh disposal in accordance with law. Specific directions were also issued.

6. When the matter thus reached the learned Sessions Judge for fresh disposal, the learned Sessions Judge framed charges afresh. The accused repeated his plea of not guilty. The accused did not avail of the opportunity to further cross - examine witnesses examined by the prosecution. As directed by the Division Bench in the earlier judgment dated 24-08-2006, the appellant was examined afresh under Sec.313 CrPC. The appellant did not adduce any further defence evidence. Counsel were heard. Thereupon, the learned Sessions Judge proceeded to pass the impugned judgment. The appellant was acquitted of the offence under Sec.377 IPC. He was found guilty, convicted and sentenced for the offences under Sec.302, Sec.376 and Sec.201 IPC.

7. Before us, the learned counsel for the appellant Sri. T. K. Ajith Kumar and the learned Additional Director General of Prosecutions Sri. Tom Jose Padinjarekkara have advanced their arguments.

8. An appellate judgment is and must essentially be read as continuation of the judgment of the Trial Court. The Trial Court in the impugned judgment has adverted in detail to all the relevant, oral and documentary evidence adduced by either side. We do not, in these circumstances, think it necessary to resort to the unnecessary exercise of re - narration of the oral and documentary evidence placed before the Trial Court. Suffice it to say that we have been taken in detail through the oral evidence of PWs 1 to 44, DWs 1 and 2 as also the documentary evidence Exts. P1 to P33 and Exts. D1 to D7 series. We have also been taken through the other documents in the case including the charges framed after remand by the learned Sessions Judge and Sec.313 examination of the accused. All these documents have been read before us in detail by the counsel.

9. It will be apposite at the very outset to note that in the course of the trial, several inadmissible material had found its way into the evidence before the Trial Court. The learned Judges who disposed of the earlier appeal and the DSR by judgment dated 24-08-2006 have adverted to those aspects in detail. We do note that when the matter was disposed of afresh by the learned Sessions Judge, very great care has been employed by the learned Sessions Judge to eschew and not advert to such inadmissible material that has been permitted to come on record. We shall not advert to such inadmissible evidence. Rightly the learned Sessions Judge by the impugned judgment has carefully avoided any reference to such inadmissible material. In these circumstances, though dissatisfied with the admission of inadmissible materials by the learned Sessions Judge who conducted the trial, we are satisfied that the interests of justice shall be served eminently by careful avoidance of any reference to such inadmissible material. Such inadmissible material shall not in any way be permitted to influence us in the disposal of this appeal.

10. The case rests entirely on circumstantial evidence. The prosecution has built up its case on the strength of circumstances. We think it apposite straightaway to refer to the circumstances relied on by the prosecution now. We emphasis the word ‘now’ because we find that certain materials which are improperly found their way into the evidence of the case is carefully avoided by the prosecution and no reliance is placed on such materials. We now attempt to narrate the circumstances relied on by the prosecution in seriatim:

1) The deceased Khairunissa left her house to proceed to her school to write her Onam terminal science examination at 9.30 am on 08-09-2004. She was found missing thereafter and did not reach the school or return to her house on 08-09-2004. 

2) From her house, she had to proceed to her school on foot. There was a short cut which ran by the side of two residential buildings under construction referred to hereafter as ‘Beerankoya’s house’ and ‘Abdul Latheeff’s house’. 

3) The dead body of the child was located ultimately in one of these two houses (Abdul Latheeff’s house) on 11-09-2004. 

4) The deceased was raped and murdered shortly after she left her house at 9.30 am on 08-09-2004, as seen from the medical evidence. 

5) Pubic hair which did not belong to the child were found in the vagina of the child in the course of post - mortem examination by the Medical Officer. 

6) The accused was a worker involved in the construction of the Beerankoya’s house and he was expected to work on that morning in that house. 

7) The accused was seen in that locality on that morning - both before and after the probable time when the death of the child must have taken place. 

8) After the body was found in that house on 11-09-2004 the police wanted the contractor to produce all the workers engaged by him in connection with the work in that house (Beerankoya’s house). All others appeared before the police; but the accused was not available. 

9) The accused was found absconding thereafter and was not available to be contacted till 16-09-2004 on which day he was eventually arrested. 

10) As suspicion was aroused consequent to the abscondance of the accused, the house of the accused was searched even before his arrest and this led to recovery of personal belongings of the deceased from the house of the accused. 

11) The accused was arrested on 16-09-2004 and when he was so arrested, he had injuries on his person for which he has not offered any specific explanation. 

12) Pubic hair sample taken from the accused were similar to the pubic hair sample recovered from the vagina of the child during post - mortem examination. 

13) In the course of interrogation after arrest, the accused made statements which led to the recovery of personal belongings of the deceased under Sec.27 of the Evidence Act. 

14) The accused led the police to the alleged venue of the crime (Beerankoya’s house) and pointed out the room and certain articles which were recovered by the Investigating Officer in pursuance of such conduct of the accused. 

15) There were black oil in Beerankoya’s house as also in the clothes which the accused and the deceased were wearing on the relevant date. 

16) Blood was found on the clothes of the accused and the deceased as also on the articles pointed out by the accused when he was taken to the venue of the crime (Beerankoya’s house); 

17) Spermatozoa was found present in the clothes of the accused and the deceased.

11. While the learned counsel for the appellant / accused contends that these circumstances have not been satisfactorily established and that the proved circumstances do not point clinchingly and unerringly to the guilt of the accused, the learned Additional Director General of Prosecution contends that all these circumstances have been established satisfactorily and the circumstances established do lead to an unerring inference about the guilt of the accused -- to the exclusion of every reasonable hypothesis of innocence of the accused.

12. We shall now proceed to consider the various circumstances extracted above. We shall initially consider whether those circumstances have been proved. We shall later consider whether the circumstances are sufficient to lead a prudent mind to a safe inference of guilt of the accused - to the exclusion of every reasonable hypothesis of innocence of the accused.

13. To the law relating to appreciation of evidence in a case resting on circumstantial evidence now. The law is too well settled to require or to persuade us to attempt any reference to precedents. It is trite that in a case of circumstantial evidence, every circumstance must be proved satisfactorily. The circumstances must form strong links of a chain and the links must together constitute a strong chain pointing unerringly to the guilt of the accused excluding every reasonable hypothesis of innocence of the accused.

14. It will be apposite straight away to note that each circumstance may be capable of several other interpretations. The Court has to consider whether each such circumstance has been established satisfactorily and if those circumstances / links are part of a chain pointing to the guilt of the accused, the question of benefit of doubt to the accused is to be considered at the end to ascertain whether the links together point unerringly to the guilt of the accused. At that final stage it has to be considered whether any reasonable doubt survives. Undoubtedly each circumstance has to be firmly established. The circumstances together should not leave behind any trace of reasonable doubt about the complicity of the accused.

15. Having so attempted to understand the law, we shall now proceed to consider the 17 circumstances specifically relied on by the prosecution. In respect of circumstances which are not seriously disputed, we may not refer to the whole gamut of evidence that has been placed before the Court. In respect of such circumstances we shall only broadly refer to the materials that are placed.

Circumstance No. 1

16. We have the oral evidence of PWs 1 and 2 on this aspect. We have Ext. P1 FI statement lodged by P.W. 1 on the very night on which the child was found missing. We have also the evidence of P.W.s 3 and 5 - Headmaster and class teacher of the child. We find that virtually there is no dispute regarding this circumstance. The prosecution has clearly established that the child had gone to the school at 9.30 am on 08-09-2004. The child did not reach the school. The child did not return to her house. The first circumstance is thus eminently established by the prosecution. There is virtually no dispute on this circumstance.

Circumstance No. 2

17. The second circumstance relied on by the prosecution suggests that the child, who wants to proceed to her school could have taken a circuitous route along the main road, but she had shorter access - a short cut, to reach her school. That shorter route used to be taken by her usually. For this, she had to proceed along a short cut which lies by the side of two residential buildings namely Beerankoya’s house and the Abdul Latheef’s house referred to earlier. We find no dispute on this aspect. We readily agree that circumstance No. 2 has been satisfactorily established.

Circumstance Nos. 3 and 4

18. According to the prosecution though the child was missing from 08-09-2004 and a crime has been registered by the police, the whereabouts of the child could not be traced by the police or the relatives of the child in spite of their best efforts till 11-09-2004. On that day, P.W. 9, a neighbour felt that foul smell was emanating from the Abdul Latheef’s house. The information was passed on to the police. The police came to the scene of occurrence. They found the dead body of the child in the loft of the bathroom on the first floor of Abdul Latheef’s house. The child was near naked at the time when the body was found. She had only M.O. 3 skirt on her. She, who had left her house fully dressed, was found lying dead with only M.O. 3 skirt on her person. It is unnecessary to refer to the inquest report and the other details. We have the oral evidence of P.W. 39 doctor, who conducted the post - mortem examination and Ext. P36 post - mortem certificate issued by P.W. 39 to throw light on the cause of death. The evidence of P.W. 39 and Ext. P36 will have to be read along with Ext. P37 report of the local Forensic Science Laboratory which confirmed that there was nothing abnormal in the viscera and that Spermatozoa was not detected in the vaginal swab. According to the prosecution, the child was raped and her death was caused by ligature strangulation. The totality of circumstances available in the case convincingly prove that the death of the child was homicidal. It is also established from evidence that there was attempt to commit rape on her. The last trace of doubt if any on this aspect is laid to rest by a reference to injuries 1 and 2 described in Ext. P36 post - mortem examination, which we extract below:

“1. Pressure abrasion band 3-3.5 cm broad over the left side of upper part of neck ascending to left mastoid region from front and back, front portion extending from angle of jaw to mastoid (4 cm) and back portion from the back of neck to mastoid (3 cm). 

2. Vaginal tear 3 cm long from right labia minora (inner lip of vagina) along its length vertically. At the depth of the vagina a few black curly long hairs were present. The pubic hair of the child were downs (fine soft short hairs).”

19. We are not at this juncture making detailed reference to the other injuries, i.e. injuries 3 to 9 seen on the dead body as they only indicate associated violence that must have taken place.

20. It will not be inapposite in this context straightaway to refer to the fact that spermatozoa was found on M.O. 16 petticoat (shemmis) worn by the deceased. Virtually there is no serious dispute raised about the cause of death of the deceased, the dispute being only about the responsibility of the appellant for the alleged crimes committed against the deceased. We have adverted to the main pieces of evidence in support of circumstance No. 3. We come to the conclusion that it is absolutely safe from the totality of inputs available in the case - particularly the ones referred above to conclude that deceased Khairunissa was raped and murdered. The time of death may in this context be of some relevance. We have evidence of P.W. 2 about the food consumed by the deceased on that morning. The undigested green gram particles found in the stomach at the time of post - mortem examination eloquently confirm the case of the prosecution that her death must have taken place at some time after 9.30 am – before the child could have reached her school. Circumstances 3 and 4 are thus established satisfactorily by the prosecution.

Circumstance No. 5

21. The 5th circumstance relied on by the prosecution is significant. According to the prosecution during post - mortem examination, P.W. 39 had found foreign hairs deep in the vagina of the deceased child. He got it out during post - mortem examination. The fact of availability of such hairs is mentioned in Ext. P36 post - mortem certificate. P.W. 39 had opined that these were not hairs of the child and this had aroused suspicion and inquisitiveness in P.W. 39.

22. The appellant challenges this evidence stoutly. First of all it is contended that P.W. 39, a police surgeon, is not speaking truth. He is obliging the police by permitting them to create such a circumstance against the appellant. It is for this purpose that such a theory of availability of foreign hair, deep in the vagina of the child is pressed into service by P.W. 39 with the help of the police, contends counsel.

23. We have been taken through the cross - examination of P.W. 39. The broad circumstances have been referred to. We find not a semblance of doubt raised in our mind about the acceptability of the oral evidence of P.W. 39. P.W. 39 is a medical officer. True he is a police surgeon also. But absolutely nothing has been indicated in evidence which can justify an approach with elemental doubt, suspicion or distrust against the testimony of P.W. 39. Ext. P36 dated 12-09-2004 (i.e. long before the arrest of the accused) clearly indicates that P.W. 39 had recorded this finding in the post - mortem certificate.

24. The accused relies on a host of circumstances to contend that this evidence of P.W. 39 should not be relied on.

25. According to P.W. 39, after the post - mortem examination he had sent M.O. 1 ear ring and M.O. 3 skirt (found on the dead body) to P.W. 44, the Investigating Officer through P.W. 40, a police constable. They were recovered from the dead body. They were sent to the investigating officer. The investigating officer had seized the same under Ext. P26. P.W. 29 is an attestor to Ext. P26. It was the definite evidence of P.W. 39 that he had taken the foreign hair available in the vagina of the child, nail clippings of the child and the pubic hair of the child in the course of post - mortem examination and had forwarded the same to the Forensic Science Laboratory at Trivandrum for examination. He had also forwarded the viscera and the vaginal swab to the local expert for examination. The articles were handed over to P.W. 40 for carrying the same to the Forensic Science Laboratory, Trivandrum. The evidence of P.W. 40 shows that he had actually taken such articles to the Forensic Science Laboratory, Trivandrum. They were returned by the Foreign Science Laboratory for the reason that there was no covering letter accompanying the same. The articles came back to P.W. 44 and he re - sent the same with P.W. 43 with the requisite covering letter. According to P.W. 26, the Scientist from the Forensic Science Laboratory, it was received on 17-09-2004.

26. The appellant attempts to make much of these circumstances and contends that it must be concluded that no hair was recovered as alleged from the vagina of the child at the time of post - mortem examination and the story of recovery of hair from the vagina of the child is a consequent concoction. This theory is built on the circumstances that in Ext. P26 seizure mahazar only M.O.s 1 and 3 are seen seized and the cover sent to the Forensic Science Laboratory by P.W. 39 through P.W. 40 is not seized under Ext. P26 seizure mahazar.

27. We find not a semblance of substance in this contention. What was sent to the investigating officer by the doctor who conducted the post - mortem examination were seized under Ext. P26. The pubic hair of the child, the foreign hair present in the vagina and the nail clippings of the child were not intended to be handed over to the investigating officer. They were intended to be carried to the Forensic Science Laboratory. The fact that the investigating officer did not in Ext. P26 seizure mahazar refer to those articles which were to be carried to the Forensic Science Laboratory cannot succeed in generating any semblance of a dissatisfaction in the mind of the Court. The evidence of PWs 40 and 43 read along with the evidence of P.W. 39 and P.W. 26 do convincingly show that the evidence of P.W. 39, that he seized foreign hair from the vagina of the child and sent the same to the Forensic Science Laboratory where P.W. 26 received the same on 17-09-2004 can safely be accepted. Notwithstanding the laborious and the hard attempts made by the learned counsel for the appellant, the appellant has not succeeded in generating any dissatisfaction against this aspect of the prosecution case. We do, in these circumstances, come to the conclusion that the 5th circumstance - that foreign pubic hairs (not of the child) were recovered from the vagina of the child by P.W. 39 doctor who conducted the post - mortem examination, is strongly and firmly established by the prosecution.

Circumstance No. 6

28. That the accused had worked under P.W. 6 in connection with the construction of the Beerankoya’s house is not disputed by the accused / appellant. According to P.W. 6, the employer / contractor as also P.W. 7, a co - worker, the accused was also engaged along with other workmen in connection with the construction work of Beerankoya’s house by P.W. 6. We find no reason to approach the oral evidence of PWs 6 and 7 with any amount of reservation, doubt or suspicion. Their cross - examination does not reveal the possibility of existence of any motive for P.W.s 6 and 7 to speak incorrectly or falsely against the appellant. The evidence of P.W. 6 shows that by 05-09-2004, the work in Beerankoya’s house was substantially over. Thereafter the other workmen had no work in that house. The accused had to continue to work. Certain iron sheets used for the construction had to be applied with black oil. Certain nails had to be removed. It is for this purpose, according to P.W. 6, that the accused had to be engaged after 05-09-2004. He was supposed to report for work on 07-09-2004. He did not. On 08-09-2004 he had to continue that work. According to P.W. 6, he did not report for work at Kondotty as he was expected to.

29. The fact remains that the appellant was expected to work in Beerankoya’s house on 08-09-2004. Of course going by the version of P.W. 6, it would appear that the appellant was expected to report at Kondotty to P.W. 6 for work. But the work had to be performed in Beerankoya’s house only. This circumstance is thus established by the prosecution to the extent that the accused was expected to report for work in Beerankoya’s house on that morning, though going by the version of P.W. 6 it would appear that he was expected at Kondotty by P.W. 6 to report for work. Nothing prevented him from reporting directly at the place of work and doing his work. The 6th circumstance is thus clearly established.

Circumstance No. 7

30. The prosecution relied on the circumstance that the accused was found available in the locality on 08-09-2004, both before and after the probable time when death of the child could have taken place. The prosecution relied on the oral evidence of 3 witnesses in support of this theory. We make it clear that the attempt of the prosecution was only to prove that he was available at about the place of occurrence at about the time when the death of the deceased could have taken place. PWs 10, 11 and 38 were relied on by the prosecution. P.W. 10, a property broker, who allegedly saw the accused at about the scene of occurrence, was disbelieved by the Trial Court. That discretion exercised by the Trial Court does appear to us to be sound. No attempt is made by the learned A.D.G.P. to assail that conclusion. That leaves us with the evidence of P.W.s 11 and 38. P.W. 11 stated that he saw the accused near the scene of occurrence on that morning. He is said to be a marriage broker. He had come to know that the girl was missing. He came to know that the dead body of the child was seen in Abdul Latheef’s house on 11-09-2004. It occurred to him that he had seen the accused - at that time a person wearing a yellow shirt, and that somehow was recalled by P.W. 11. His suspicion was aroused. He revealed that information to some others. The police came to know of this and on 13-09-2004 he was questioned by the police. His statement was recorded. On 17-09-2004, when the accused after arrest was produced at the scene of the crime, P.W. 11 saw the accused and he confirmed that it was the same man whom he had seen in the locality on 08-09-2004. He was questioned by the police again on 17-09-2004. The prosecution relied on the evidence of P.W. 11 in the light of his earlier statements dated 13-09-2004 and 17-09-2004 before the police. He was cross - examined at length. No contradiction has been brought out. The learned Trial Judge felt that in the totality of circumstances, the oral evidence of P.W. 11 is worthy of acceptance. It is argued that P.W. 11 is a chance witness. He had no reason to observe the accused who was just another person when he met him on 08-09-2004, contends counsel. According to P.W. 11, he recalled his meeting the appellant on 08-09-2004 when he came to know that the child was missing and the body of the child was traced on 11-09-2004 at Abdul Latheef’s house. P.W. 11’s evidence has been subjected to close scrutiny by the learned Sessions Judge. We have also subjected the evidence of P.W. 11 to careful scrutiny. We do not find any reason to doubt or suspect the evidence of P.W. 11. The course adopted by the learned judge of choosing to place reliance on him, does not, at any rate, warrant or require appellate interference, according to us. P.W. 11 is not shown to have any questionable antecedents to generate any suspicion against his testimony.

31. We now come to the evidence of P.W. 38. He runs a hotel by name ‘Bismi’ hotel in the locality. It is his version that he knows the accused. He used to come to his shop for taking tea. According to him, on the date when the child was missing (08-09-2004), the accused had gone to his tea shop in the morning to have tea. Later in the afternoon he had again come to the teashop to have tea and a bite. According to P.W. 38, there was conversation also between him and the accused when he came later in the afternoon. Accused had stated that he had finished his work early on that day. P.W. 38 was cross - examined. Nothing has been brought out to generate any doubt or distrust against the testimony of P.W. 38. The Trial Court placed reliance on P.W. 38. The antecedents of P.W. 38 do not also generate any dissatisfaction or reservation. There is not even a semblance of suggestion as to why P.W. 38 should speak falsehood against the appellant except that he was also wanting to support the case of the prosecution.

32. According to the prosecution case, P.W. 11 had seen the appellant in the locality on that morning. P.W. 38 had seen him in the morning and in the afternoon. The prosecution relied on these circumstances to contend that the appellant was present in the locality and could have been responsible for the commission of the crime. This is the only purpose for which reliance is placed on the oral evidence of PWs 11 and 38. This circumstance is thus found to be well established by the prosecution.

Circumstance No. 8

33. According to the prosecution when the body was located in Abdul Latheef’s house on 11-09-2004, suspicions were aroused about the persons who were working in that house. P.W. 6, the contractor / employer was summoned by the police, who wanted to check the details of the persons employed by P.W. 6. At that time according to the prosecution, the work in Beerankoya’s house alone was being done. No work was going on in Abdul Latheef’s house. P.W. 6 as contractor / employer was getting the work done in Beerankoya’s house. When the police wanted all workmen who had worked there to be made available for examination by the police, all the others were made available, but in spite of word sent to the appellant / accused, he did not appear. According to the prosecution, this was the starting point when a vague doubt was initially raised against the involvement of the appellant. That explains why the conduct of the accused on the date of the occurrence and thereafter was brought under the scanner by the police. The evidence of PWs 6 and 7 clearly shows that P.W. 6 attempted to make available before police all the workers who were working for P.W. 6 in Beerankoya’s house. All others except the appellant / accused responded to the call of P.W. 6 and made themselves available for examination by the police. The accused did not. We have evidence of PWs 6, 7 and 44 on this aspect. P.W. 7 is a co - worker. P.W. 6 is the employer of the appellant. P.W. 44 investigating officer is also not shown to have , any animus against the accused. We find absolutely no reason to doubt or suspect this circumstance relied on by the prosecution which was accepted by the Trial Court. It is evident that the appellant was not available for examination by the police despite the request of the police to P.W. 6 to make all workers available. The 8th circumstance is thus clearly established.

Circumstance No. 9

34. The dead body of the deceased was traced on 11-09-2004, according to the prosecution, when attempts were made to locate the accused, he was not available. According to P.W. 6, he, who was expected to come for work on 07-09-2004, did not thereafter come for work. The prosecution contends that the accused was absconding and this conduct of his of abscondance is relied on as a circumstance by the police. The accused has a different version to advance. According to him when P.W. 6 informed him through his brother that he must report before P.W. 6, he went to P.W. 6 on 12-09-2004 and thereupon he was produced before the police by P.W. 6. From that day he continued in illegal custody of the police and his arrest was recorded only on 16-09-2004. This broadly is the case of the accused in answer to circumstances 8 and other connected circumstances relating to discovery of articles.

35. We recall the evidence of PWs 6 and 7 that the appellant was not available for interrogation. We take note of the evidence of P.W. 6 and 44 that attempts made by them could not procure the presence of the appellant. We have the oral evidence that P.W. 44 received information ultimately that the appellant was available at Mambram. P.W. 44 went to Mambram with P.W. 6 and according to P.W. 6 the appellant was arrested by P.W. 44 at Mambram in his presence by P.W. 44 on 16-09-2004. Here again the question is whether P.W. 6 and P.W. 44 can be believed on that question. The Trial Court believed him. We take note of the relationship between P.W. 6 and the appellant. We take note that there is not a semblance of suggestion in the cross - examination that P.W. 6 has any animus against his worker, the appellant. We take note of the evidence of P.W. 44. We are, in these circumstances, satisfied that the evidence of PWs 6 and 44 that the appellant could not be traced till 16-09-2004, on the evening of which day he was arrested from Mambram, can be safely accepted.

36. Attempt is made to pick holes against this circumstance relied on by the prosecution by placing reliance on the oral evidence of DWs 1 and 2 and Exts. D1 to D7 series. Exts. D1 to D7 series are news paper reports about this sensational crime in the Mathrubhumi daily. D.W. 1 is the reporter, who is alleged to have sent up his reports for publication and D.W. 2 is the editor, who received such reports and effected publication of the relevant news items in the daily on the relevant dates. D.W. 2 in his evidence clearly stated that he had only published the reports received from D.W. 1 and he has no responsibility for the contents of the reports and the publication. That leaves us with D.W. 1. Cross - examination of D.W. 1 also reveals that he is not in any way responsible for the authenticity of the contents of the reports sent by him and the publications effected in the daily. Arguments are built on the basis of the relevant news item in respect of this crime in the news paper to advance a contention that accused must have been arrested long prior to 16-09-2004, the date on which his arrest was formally recorded by the police. It is unnecessary to advert to specific precedents. A news paper report cannot be reckoned as synonymous for proof of the matters referred to in the report. It is well settled that the contents of such reports must be proved satisfactorily. D.W. 1 was examined by the accused to discharge that burden obviously. The evidence of D.W. 1 clearly shows that D.W. 1 cannot vouch the correctness of the contents of the report.

37. Media trial has been adversely commented upon in the impugned judgment. A perusal of Exts. D1 to D7 series must eloquently show the tentativeness and the want of authenticity in such reports / publications in the news papers. It is unnecessary to delve deeper into the details of the relevant reports. Suffice it to say that in the light of evidence of DWs 1 and 2 the Trial Court was eminently justified in not placing any reliance on Exts. D1 to D7 series. In any view of the matter, the oral evidence of PWs 6, 7 and 44 cannot be thrown overboard with the help of the evidence of DWs 1 and 2 and Exts. D1 to D7. Circumstance No. 9 is also thus firmly established.

Circumstance No. 10

38. We come to circumstance No. 10. Before the accused was arrested on the basis of suspicion generated against him from various inputs which were available before the Investigating Officer, the Investigating Officer P.W. 44 wanted the house of the accused to be searched. He prepared Ext. P43 search memo and conducted the search in the house of the accused. P.W. 12 is one of the attestors to the search list / seizure memo. It is crucially important to note that search list prepared on 14-09-2004 had reached the Court on 15-09-2004 itself. We have already noted that the accused was arrested only on 16-09-2004.

39. Primarily we have the evidence of P.W. 44. His evidence explains why he was persuaded to conduct a search of the premises of the appellant. The appellant was absconding. He was not available for questioning / verification of facts by the police. In these circumstances, if curiosity / suspicion of P.W. 44 were raised against the involvement of the appellant and if he wanted the premises of the accused to be searched, we find absolutely nothing abnormal, unnatural, unreasonable or artificial in that. Under Ext. P9, M.O.s 4 to 12 were recovered. PWs 1 and 2 had identified M.O.s 4 to 12 as articles belonging to the deceased. They were articles allegedly carried by the deceased when she started for her school to write the examination on 08-09-2004.

40. This circumstance, if proved, is indeed a formidable circumstance against the accused. The accused has vehemently challenged and contested the theory of prosecution that M.O.s 4 to 12 were seized from his house under Ext. P9 by P.W. 44.

41. The first contention raised is that there is nothing to show that this was the house of the accused. P.W. 44 stated about this aspect. There was virtually no cross - examination of P.W. 44 on this aspect. Ext. P9 shows that the mother of the appellant was present when the search list was prepared. There is no contention or dispute that, that person is not the mother of the appellant. In short, this contention that the house has not been proved to be that of the accused does not commend itself for acceptance. Of course as observed by the Trial Court, better evidence could have been produced. Criminal trial cannot always get reduced to a mere exercise of ascertaining the competence or efficiency of the investigating police officer. More important mission / purpose is there for every criminal trial. Though it is very evident that better evidence that the house belongs to the accused was not impossible, the absence of such evidence cannot generate any amount of dissatisfaction in a prudent mind in the circumstances of the case.

42. We now come to the actual recoveries. Some of the articles were recovered from the house. Some others from the premises. The argument is strenuously advanced that some of these could have been falsely planted in the house of the accused. Less said about this contention, the better. There is absolutely nothing to indicate even the remote possibility of an attempt to falsely implicate the accused at that stage. Some of these items recovered cannot be described to be the personal belongings of the deceased, it is contended. It is particularly pointed out that one note book and a text book do not belong to the deceased and they belong to the daughter of P.W. 2, another child in the same house. There is nothing improbable if such articles in the house were available with the deceased. At any rate, we note that M.O.s 5, 6 and 8 - a Science text book, a note book and an answer paper of the previous Science examination, are clinchingly shown to be that of the deceased. PWs 1 and 2 as also P.W. 25 teacher have tendered clinching evidence to show that these books / belongings are exclusively that of the deceased. We are, in these circumstances, convinced that circumstance No. 10 is convincingly established by the prosecution.

Circumstance No. 11

43. As circumstance No. 11 the prosecution relies on the fact that the accused, when he was arrested on 16-09-2004, had personal injuries on him. P.W. 15 doctor had examined the accused on 17-09-2004 after his arrest. Ext. P11 - potency certificate, Ext. P12 - wound certificate and Ext. P13 seizure mahazar are proved through P.W. 15. For the moment, we take note of the circumstance that P.W. 15 had issued Ext. P12 wound certificate. Ext. P12 wound certificate reveals that the appellant had 2 injuries on him. They are described in Ext. P12 to be 2X2 cm healing abrasions on the right wrist and the right knee. The accused when he was examined under Sec.313 CrPC resorts to omnibus, general and vague denial of these injuries. We find no reason not to accept the evidence of P.W. 15. The evidence of P.W. 15 read along with Ext. P12 clearly shows that there were 2 healing injuries on the accused when he was examined on 17-09-2004. The incident had taken place on 08-09-2004. Of course there is no convincing evidence to suggest that the accused had suffered any injuries in the incident which had taken place on 08-09-2004. But the probability that he could have suffered some injuries loom large in the proved circumstances. It is also true that the evidence of P.W. 15 only shows that there were 2 healing abrasions. The extent of healing and the details are not furnished for the Court to come to a specific conclusion that those injuries found must have been suffered on 08-09-2004. Be that as it may, what is relevant is only that he had 2 healing injuries when he was arrested and examined by the doctor after his arrest on 17-09-2004. He denies such injuries and does not offer any explanation for those injuries. Circumstance No. 11 is thus convincingly established that the accused at the time of his arrest had 2 healing abrasions on his person, for which no explanation is offered by him.

Circumstance No. 12

44. According to the prosecution after the accused was arrested, specimen hair samples of the accused were drawn by P.W. 15. Ext. P13 is the seizure mahazar. M.O. 19 is the pubic hair. M.O. 20 is the scalp hair and M.O. 21 is the mustache hair, which P.W. 15 obtained from the appellant. M.O. 22 is the box in which these samples were kept and forwarded to the Forensic Science Laboratory. Ext. P24 report submitted by P.W. 26, the Director of the Forensic Science Laboratory shows that the hair (pubic hair) recovered from the vagina of the deceased and the specimen pubic hair taken from the accused by P.W. 15 (M.O. 19), which were sent to him differently, were similar. The prosecution hence contends that this circumstance is a crucial circumstance in favour of the prosecution in its attempt to establish the guilt of the appellant.

45. Attempt is made to challenge this circumstance from various angles. First of all it is contended that the evidence is inconclusive. Relying on the various precedents and commentaries in scientific texts, it is argued that similarity of hair can help the prosecution only to exclude and not to fasten culpable liability of any individual. The opinion tendered by P.W. 26 in Ext. P24 is only that the “questioned hair (recovered from the vagina of the child) and the specimen hair of the accused are similar”. Reliance is placed on the decision in Fr.George Cherian v. State of Kerala, ILR 1989 (2) Kerala 95 to contend that the science of hair identification, unlike the science of finger prints and DNA test cannot help the Court to fasten culpable liability on an individual. At best it can only be held that the evidence would help the Court as a circumstance consistent with the case of the prosecution - nay, to be exact, not inconsistent with the case of the prosecution. It cannot help the prosecution to individualise and place responsibility on the shoulders of the accused particularly, argues counsel.

46. In Fr.George Cherian (supra), we get a detailed discussion on this aspect in paragraphs 53 and 54. It is unnecessary for us to specifically advert to subsequent advancement in the science and technology relating to hair identification. Suffice it to say that the evidence tendered by P.W. 26 in this case read along with his report Ext. P24 only opines that the questioned hair and the specimen hair were only similar. His evidence does not at all help us to state with authenticity that the questioned hair must necessarily have come from the appellant / accused in this case. The pubic hairs - questioned and specimen, were similar in nature and this circumstance can help the Court only to reckon the same as a circumstance consistent (not inconsistent) with the guilt of the accused. If P.W. 26 were able to state with greater authenticity that the questioned hair and the specimen hair came from the same source we may have been obliged to consider whether such expert evidence tendered is scientifically acceptable or not. In the facts and circumstances of this case in the absence of a specific assertion to that effect by P.W. 26 on oath and in Ext. P26, it is unnecessary to delve deeper into that aspect.

47. The learned A.D.G.P. points out relying on the precedents of the Supreme Court in Maghar Singh v. State of Punjab, (1975) 4 SCC 234 and Royson v. State of Kerala, 1990 (2) KLJ 47 that the evidence of the expert regarding similarity of hair is certainly admissible. We find no reason not to accept the expert evidence tendered by P.W. 26 which is available in Ext. P24. The questioned hair and the specimen hair are similar in nature and that conclusion appears to be absolutely safe. To what use the said conclusion can be put to in the ultimate adjudication of guilt of the accused, we shall consider later. Suffice it to say now that the evidence that the hairs are similar does not help to individualise and hold authentically that both hairs came from the very same source.

48. In this context the contention is repeated that the evidence of P.W. 39 about the availability of the questioned hair in the vagina of the deceased cannot be accepted. It is argued that the Investigating Officer had manipulated evidence. After P.W. 15 took the sample specimen hair from the appellant, documents were manipulated and a portion of the specimen hair taken by P.W. 15 on 17-09-2004 was itself forwarded to the Forensic Science Laboratory as the questioned hair also, it is contended. We find no merit whatsoever in this contention. P.W. 15 had taken the sample hair on 17-09-2004. The questioned hair, we have already noted, had reached the Forensic Science Laboratory on 17-09-2004. More over the theory of attempt to manipulate evidence and falsely implicate the appellant is found to be so totally unacceptable in the broad facts and circumstances of this case.

49. The learned counsel for the appellant submits that P.W. 15 had only obtained sample pubic hair by using scissors and the hair has not been plucked out. He relied on texts to contend that for authentic results, such course is to be followed by P.W. 15. It is of course true that P.W. 15 could have followed such better and more authentic course for drawing sample of specimen pubic hair. But at any rate the fact that he did not follow that procedure does not in any way militate against the acceptability or efficacy of the opinion tendered by P.W. 26 in Ext. P24 that the questioned hair and the specimen sample hair were similar in nature. To that extent we hold that this circumstance, i.e. circumstance No. 12 has also been satisfactorily established.

Circumstance No. 13

50. According to the prosecution after the appellant was arrested, he was interrogated and he gave a confession statement. Confession statement of an accused, it is trite, cannot be admitted in evidence unless it falls within the four walls of Sec.27 of the Evidence Act. We have already noted that the Trial Court had unfortunately admitted inadmissible evidence. We are carefully eschewing such inadmissible evidence. We come to the admissible evidence relied on by the prosecution of recoveries under Sec.27 of the Evidence Act.

51. The prosecution relies primarily on three sets of recoveries claiming the same to be admissible under Sec.27 of the Evidence Act. Under this circumstance No. 13, we shall consider only such circumstances which, the learned A.D.G.P. now contends, are perfectly admissible under Sec.27 of the Evidence Act.

52. The learned A.D.G.P. first relies on the recovery of M.O. 17 under Ext. P30 by P.W. 44 in the presence of P.W. 32 an attesting witness. Under that mahazar, some other articles are also recovered. But for the moment, we shall confine ourselves to the recovery of M.O. 17 under Ext. P30. M.O. 17 is proved to be the chappals / footwear worn by the deceased when she left the house on 08-09-2004. PWs 1 and 2 have given evidence in support of this. We find no reason not to accept the oral evidence of PWs 1 and 2 that M.O. 17 are slippers worn by the deceased when she left the house on 08-09-2004. The evidence of P.W. 44 and P.W. 32 in the light of P30 clearly establishes that the accused gave a confession statement that the slippers are concealed by him in a room in Beerankoya’s house. The appellant led P.W. 44 to the place where M.O. 17 was concealed. He removed earth and showed M.O. 17 chappals which were seized by P.W. 44 under Ext. P30 mahazar. We find absolutely no reason to approach the evidence of PWs 44 and 32 regarding this discovery with suspicion. It falls classically within the four contours of Sec.27 of the Evidence Act. Contents of Ext. P30 eminently support the oral evidence of P.W. 44 and 32 on this aspect. We are of the opinion that the evidence of recovery on M.O. 17 on the basis of the confession statement given by the appellant can in these circumstances be safely accepted.

53. Attempt is made to pick holes in this theory of recovery of M.O. 17 again with the help of the oral evidence of DWs 1 and 2 and Exts. D1 to D7 series. We have already dealt with the evidence of DWs 1 and 2 and reports which appeared in the news papers. We attach no significance or importance to such reports. We find no reason to discard the oral evidence of P.W. 32 or P.W. 44 on the basis of the oral evidence of DWs 1 and 2 and Exts. D1 to D7 series. In this context we do again note that a lot of hearsay finds its way into the print media as supposedly authentic version. A careful perusal of Exts. D1 to D7 would clearly show how unsafe it would be to place reliance on such reports appearing in the press. Certainly it must have been known to close relatives that the deceased was wearing the slippers. A story invented by the fertile imagination of D.W. 1 or any other who furnished information to him about the recovery of M.O. 17 prior to 17-09-2004, cannot at all weigh with this Court while considering the acceptability of the evidence of recovery of M.O. 17 under Ext. P30.

54. The next recovery relied on under this circumstance is the recovery of M.O.s 14 to 16 and M.O. 26A & B under Ext. P31 by P.W. 44 with P.W. 33 as an attestor. That M.O.s 14 to 16 belong to the deceased and she was wearing these clothes when she left her house are proved convincingly by the oral evidence of PWs 1 and 2. When the dead body was found on 11-09-2004, these items of clothing were not available on the dead body. Someone must have removed them. Anyone who has information about the concealment of these pieces of clothing of the deceased will certainly have to explain how he had knowledge about the concealment of these articles. It is in this context that this recovery becomes relevant and important. Along with M.O.s 14 to 16, M.O.s 26A and B, which are only parts of M.O. 16, were also recovered under Ext. P31.

55. Challenge is raised against the recovery of M.O.s 14 to 16 and M.O.s 26 A and B under Ext. P31 by P.W. 44 in the presence of P.W. 33.

56. The first contention raised is that the recovery is from an open place. The confession statement as well as the evidence of PWs 44 and 33 clearly reveal that these articles were concealed in a cover and that was discovered on the basis of the confession statement of the appellant. The evidence of PWs 33 and 44 read along with Ext. P31 knock the bottom out of this theory that the recovery was from an open place. The evidence clearly indicates that the appellant had lead P.W. 44 to a place under the bridge and had shown the place where these articles were kept concealed. In these circumstances, the contention that the recovery under Ext. P31 cannot be accepted for the reason that it was recovered from a public place cannot obviously stand. It is now trite that the simple fact that another person on thorough search of the place of recovery could possibly have recovered the concealed articles, even without information furnished by the accused cannot affect the admissibility or efficacy of the evidence of discovery or of the information lending to the recovery.

57. The next article discovered is M.O. 13 series, 3 pieces of a writing pad which the deceased allegedly carried with her, when she left her home for proceeding to the school to write the examination. M.O. 13 series (writing pad) has the name of Shadiya, the daughter of P.W. 2 written on it. The evidence clearly indicates that though the writing pad bore the name of Shadiya, the daughter of P.W. 2, it was carried by the deceased when she went for the examination. The fact that the name of the daughter of P.W. 2 was written on M.O. 13 is not in these circumstances of any relevance. That it have the name of Shadiya does not at all indicate or suggest that it could not have been carried by the deceased when she left her home for her school on that morning. The evidence clearly indicates that M.O. 13 which was broken into three was found concealed under a bush and the same was recovered by P.W. 44 under Ext. P34 in the presence of P.W. 36. That discovery is also seen proved satisfactorily.

58. The other recoveries effected under Ext. P30 and Ext. P35 shall be discussed, by us later. Under this circumstance No. 12, we take note of the recovery of M.O. 17, M.O.s 14 to 16, M.O.s 26(a) and (b) and M.O. 13 series. All these are articles which the deceased was carrying or wearing at the time when she left the house of P.W. 1 for the school on the morning of 08-09-2004. We find no reason to disbelieve this evidence of recovery. We do in these circumstances come to the conclusion that Circumstance No. 13 stands firmly established to the extent indicated above.

Circumstance No. 14

59. The prosecution has a case that when the accused was interrogated, he furnished other relevant information in the confession statement given by him. Omnibus admission of confession statement unless the same is permitted under Sec.27 of the Evidence Act is taboo and cannot be accepted and acted upon. But all the same, the learned Additional Director General of Prosecution contends that certain pieces of conduct of the appellant are relevant and the same can be taken into consideration by the Court under Sec.8 of the Evidence Act. The conduct which is sought to be brought to the notice of the Court is the conduct of the accused leading the investigating officer to the alleged scene of the crime, i.e., the house of Beerankoya. On this aspect, we have the evidence of P.W. 44. The evidence of P.W. 44 shows that the accused had brought him to the house of Beerankoya. If material circumstances were revealed from such conduct of the appellant, it can certainly be reckoned as relevant material.

60. That takes us to the question as to what are the materials on which reliance was placed. According to the prosecution, the accused led P.W. 44 to the scene of the crime and pointed out M.O. 23 and M.O. 23(a) to (e). These are pieces of coir. They are not shown to have any nexus with the crime directly or specifically. Even though there is a case for the prosecution that these coir pieces were used by the accused in connection with the commission of the crime, no direct nexus has been established. In these circumstances, the fact that the conduct of the accused revealed that M.O. 23 and M.O. 23 series (a to e) were available in the house of Beerankoya cannot by itself be reckoned as a crucially relevant circumstance.

61. The prosecution has a case that in the house of Beerankoya, M.O. 24 red towel and M.O. 25 white towel were also available. Though no specific evidence has been adduced by the prosecution, it appears that the prosecution has a case that M.O. 24 and M.O. 25 were used to silence the deceased and also as ligature for strangulation which eventually lead to the death of the accused. But M.O.s 24 and 25 have not been specifically connected to the incident. There is no legal evidence to conclude that M.O.s 24 and 25 were used by the offender to commit the crime. In these circumstances, though the evidence reveals that M.O. 23 series, M.O. 24 and M.O. 25 were traced by the investigating officer when the accused led them to the house of Beerankoya, the same cannot be reckoned as conduct vitally relevant to the incident in this case. Similarly, though the accused had led P.W. 44 to the scene of occurrence and though the accused had allegedly shown M.O.s 23, 24 and 25 to the investigating officer, nothing has been recovered from the scene of the crime which is proved to have a nexus with the commission of the crime. In these circumstances though totality of the inputs available generates some serious doubts as to whether the incident had taken place in the house of Beerankoya, nothing specific or tangible has been discovered or proved to establish that the incident had taken place in the house of Beerankoya. It remains in the realm of a reasonable hypothesis or assumption that the incident may have taken place in the house of Beerankoya. But we are unable to attach crucial significance to this circumstance while considering the guilt of the accused. In these circumstances, even though the evidence adduced suggests that the accused indulged in the conduct of pointing out M.O. 23 series, M.O. 24 and M.O. 25, the conclusion appears to be inevitable that direct linkage between the incidence and these objects have not been legally proved. To that extent, this circumstance cannot be said to be of any crucial relevance.

Circumstance No. 15

62. Black oil was found present in the house of Beerankoya where the accused was expected to work on that day. The prosecution relied on the fact that some of the clothes of the accused, some of the clothes of the deceased as also some pieces of cloth like M.O.s 24 and 25 found at the scene of the occurrence had black oil on it. The prosecution has a case that while the accused was working in the house of Beerankoya, black oil must have got smeared on his hands. According to the prosecution, it is at that juncture that opportunity presented itself and the accused indulged in the alleged crime. The prosecution in these circumstances alleges that the presence of black oil in some of the clothes of the accused, some of clothes of the deceased and the articles found at the scene is a circumstance favourable to the prosecution. According to us, this circumstance cannot be said to have any crucial nexus with the incident in this crime though on broad probabilities, it could be said that it leads to the suspicion that the hands of the accused must have been smeared with black oil at the time of the occurrence and it is this that led to the presence of black oil in these pieces of clothes / towels available at the scene of the crime. We do not attach crucial significance to these, though broadly they support the probability that the accused who was dealing with black oil might have been responsible for the presence of black oil in all these clothings.

Circumstance No. 16

63. The prosecution relies on the fact that blood was seen on the clothings of the deceased also. M.O.s 14, 15, 16 and 26(a) and (b) are shown to be blood stained. The prosecution also relies on the circumstance that M.O. 24 and 25 were also blood stained. The deceased had suffered injuries as can be seen from Ext. P36. The injuries on her clothes are consistent with the case of the prosecution that she suffered injuries in the course of the incident. To this extent, the presence of blood on the clothes of the deceased assumes relevance and significance. But the presence of blood on the clothes of the deceased does not offer any pointer to the complicity of the accused.

64. However, the prosecution relies on the recovery of M.O.s 27 to 29 under Ext. P25 by P.W. 44 in the presence of P.W. 41. Those recoveries are made from the house of the accused after the arrest of the accused. According to the prosecution, M.O.s 27 and 28 - Dhoti and underwear were worn by the accused at the time of the occurrence and he continued to wear the same till he was arrested on 16-09-2004. M.O. 29 shirt, according to the prosecution, is the yellow shirt which the accused was wearing at the time of the occurrence. These were found to be blood stained. The learned Additional Director General of Prosecution contends that the unexplained presence of blood stain in M.O.s 27 to 29 is a circumstance in favour of the prosecution. The prosecution has not been able to prove that the blood stain found on M.O.s 27 to 29 is the blood of the deceased. Direct linkage is thus not established. But the fact remains that accused has not offered any explanation for the presence of blood stains on M.O.s 27, 28 and 29. This circumstance is therefore certainly, in the absence of any explanation by the accused, relevant while adjudicating on the guilt of the accused. We need only note that M.O.s 27 to 29 belonging to the accused which were seized under Ext. P35 seizure mahazar after his arrest were found to be blood stained and no explanation was offered by the accused for the presence of such blood stains in his clothings. We find no reason to disbelieve the evidence of PWs 44 and 41 about the recovery of M.O.s 27 to 29 and the contents of Ext. P35 which corroborate the version of PWs 41 and 44. In these circumstances, the presence of blood stains in the clothing of the deceased and the accused is found to be relevant and this circumstance is seen established satisfactorily.

Circumstance No. 17

65. Spermatozoa were found present in M.O. 16 petty coat worn by the deceased. No DNA test was conducted and specific evidence is not available to trace the identity of the person from whom Spermatozoa may have come to the clothes of the deceased. The presence of Spermatozoa on M.O. 16 is certainly vitally relevant when we consider the circumstance as to whether the deceased was subjected to sexual assault in the course of the incident. The presence of Spermatozoa in M.O. 16 is consistent with the case of the prosecution, but it does not specifically link the accused with the crime.

66. We now come to the presence of Spermatozoa detected in M.O. 28, the underwear of the accused. The accused is a young man aged 24 years. The presence of Spermatozoa in the underwear of the accused though consistent with the theory of the prosecution cannot be held out as a circumstance crucially relevant or vital in the adjudication of guilt against the appellant. We do take note of that circumstance which is consistent with, and not inconsistent with the theory of the prosecution. But beyond that, that circumstance has no vital relevance. Thus, we come to the conclusion that Circumstance No. 17 has also been established.

67. We have now discussed all the circumstances relied on by the prosecution. The question that remains to be considered is whether these circumstances together are sufficient to satisfactorily and unerringly point to the guilt of the accused. That is final question that has to be considered.

68. The learned counsel for the appellant raises several questions. First of all, he argues that if the accused had chosen to dispose of the dead body at the scene of the crime itself, why should the accused have carried the personal belongings of the deceased from the scene of the crime, when he allegedly went away from the scene of the crime. That conduct is improbable and artificial. No reasonable and prudent person can lightly assume that the accused would have indulged in such conduct, argues the learned counsel for the appellant.

69. Continuing the very same argument, the learned counsel for the appellant submits that if the appellant had chosen to conceal M.O. 17 slippers at the scene of the crime itself, what is the probability of the accused carrying other personal belongings of the deceased from the scene of the crime. Still continuing the argument, the learned counsel for the appellant argues that if the accused had chosen to dispose of M.O.s 14 to 16 and M.O.s 26, 26(a) and (b) under the culvert, how can it be assumed that he would have further carried the other personal belongings to the house of the accused. The learned counsel in such circumstances continues the argument that the main circumstances (of recovery of personal belongings of the deceased) relied on by the prosecution against the accused are in these circumstances inherently fragile and unworthy of the acceptance. The theory rebels against logic, common sense and the natural and common course of events, contends counsel. The learned counsel further points out that the theory is improbable, that the incident must have taken place in the house of Beerankoya and the dead body in broad day light could have been carried by the appellant from the house of Beerankoya to the house of Latheef where it was found concealed. The learned counsel in these circumstances argued that the very theory of the prosecution cannot be accepted by a prudent mind. The counsel further points out that it is extremely improbable and artificial that one person, (whoever be the offender) could have committed the offence by himself, and to carry the dead body from the house of Beerankoya, the alleged scene of the crime, to the house of Latheef and lodge it concealed in the loft of the bathroom on the first floor. The offender must have required the assistance of some others. The theory that one person committed this crime is inherently improbable and not acceptable, argues the learned counsel.

70. We have considered all the relevant inputs. We find it absolutely safe to come to the conclusion that the deceased had left her house at 9.30 am in the morning to proceed to her school for writing the examination. We find it absolutely safe to come to the conclusion that she must have taken the short cut running by the side of the two houses - Beerankoya’s house and Latheef’s house. Not a trace of doubt is left in our mind that the deceased was raped and murdered and the dead body was left in the loft of the house of Latheef. As to where exactly the incident may have happened, in the total absence of any eyewitness, the prosecution can only make suggestions. The indications suggest that some incident may have taken place in the house of Beerankoya. But we do not think it necessary to come to any specific findings on the question as to where the incident should have taken place. It was possible that the incident took place in the house of Beerankoya as per the indications available. It is not possible to rule out that the incident did not take place in Latheef’s house. The conclusion appears to be very safe and inescapable that the deceased was raped and murdered at some place near the place where her body was ultimately placed by the offender, i.e., in the loft of the bathroom on the first floor of Latheef’s house.

71. The fact that she was raped and murdered is evident farther from the fact that her clothes were seen removed from the body, when the body was ultimately traced. The injuries described in Ext. P36 also convincingly support our conclusion. The presence of pubic hair in the vagina of the child is again another circumstance pointing conclusively to the theory of rape before murder. The laborious attempt made by the defence to make it appear that pubic hair were subsequently planted in the vagina by active collision between the investigating police officer and P.W. 39, the police surgeon must fall to the ground, and must be ruled out as nothing but a figment of imagination. No other possible competing theory emerges. It is easy to come to the conclusion that the deceased child who left her house at about 9.30 am on 08-09-2004 was raped and murdered within a short period of time after she left her house at some place near the place where the dead body was ultimately found.

72. The prosecution relied on circumstances which indicated that the accused was present at about or near the place of occurrence at the relevant time. Not a semblance of doubt is left in our mind that the accused was expected to work in Beerankoya’s house and that he was found available at or near that place of work on that day both before and after the probable time of death. The presence of the accused at about the place of occurrence at about the crucial time is again a formidable circumstance against the accused, in the totality of facts and circumstances available in this case.

73. The fact that the accused did not make himself available before the police as directed by the police and he could not be traced after the body was located on 11-09-2004 till 16-09-2004 when he was eventually arrested is again yet another circumstance consistent with the guilt of the accused. In addition to the relevance of these as a circumstance pointing to the guilt of the accused, this circumstance offers explanation as to why the investigating police officer thought it necessary to conduct a search in the house of the accused. The search revealed vital information. It is unnecessary to refer to the other materials recovered. M.O.s 5, 6 and 8, according to us, clinch the issue in favour of the prosecution. Recovery of articles which the deceased was having in her possession from the premises of the accused is certainly a very formidable circumstance in the chain of circumstances against the accused. Except a blanket denial, he has no explanation to offer for the availability of these articles in his house. The absence of an explanation on the part of the accused is one further circumstance adding to and strengthening the other circumstances that are available in evidence.

74. The question is asked to us as to why the accused should have carried those articles along with him. It would be puerile to look for rational explanation for all conduct of the accused in the given circumstances. The inability to dispose of all the articles satisfactorily at the scene of the crime may have prompted him to carry the articles from the scene of the crime. It is difficult to speculate on all the thought processes of the accused at the relevant time. The accused as a prudent person must have felt that leaving behind certain articles carried by the deceased at the scene of the crime may have been adverse to his interest. That can perfectly be the explanation, why the accused should dispose of the dead body on the loft and must have chosen to conceal M.O. 17 under earth at the alleged scene of crime and chose to carry the clothes of the deceased and the writing pad from the scene of the crime to a different place. Similarly, a query as to why accused should have disposed of M.O.s 14 to 16 and M.O.s 26(a) and (b) at one place and the writing pad (M.O. 13) at another is again one that cannot be answered by the prosecution. If the evidence of recovery is convincing, as it is in the instant case, the prosecution cannot be burdened with the responsibility of finding out answers for such questions. Inherently the circumstances relied on by the prosecution, including recovery do not arouse any serious doubt or suspicion. It is in this context that we take note of the recoveries effected before the arrest of the accused and after the arrest of the accused.

75. The presence of unexplained injuries on the accused is again another formidable circumstance in the chain of circumstances. We agree that there is no specific evidence that the accused did suffer any injuries in the course of the incident. It does not require the wisdom of Solomon to assume that the victim in her struggle for life must have attempted to save herself and the possibility of the assailant suffering injuries in the course of such incident is real and reasonable and cannot be ruled out. The fact remains that the deceased had injuries which injuries are consistent with the case of the prosecution and which injuries are not explained at all by the accused.

76. We finally come to the evidence about the similarity of the pubic hair of the accused and the hair recovered by P.W. 39 from the vagina of the deceased at the time of post - mortem examination. Argument is advanced that it is unlikely that even the course of a violent attempt to rape, pubic hair of the assailant will find its way into the vagina of the victim. P.W. 39’s evidence indicates the probability of such presence of pubic hair from the assailant in the vagina of the deceased. We are unable to rule out that possibility by any process of logic as reasoning. It does not appear to us to be improbable or impossible at all. The circumstance that pubic hair strands of the accused were similar to the hair found inside the vagina is in these circumstances one more circumstance strengthening the other circumstances and confirming the guilt of the accused.

77. The above discussions lead us to the conclusion that the circumstances established by the prosecution do point safely and in all human probability to the conclusion that the deceased had suffered the injuries which led to her death at the hands of the appellant. The totality of circumstances, we are of the opinion, must lead any prudent mind to that conclusion. There is no competing alternative theory which can arouse any reasonable doubt in the mind of the Court. The only alternative theory that because of great sensation created by the gruesome murder, the Investigating Officer and the witnesses are speaking utter falsehood against the accused, is not probable and does not in the circumstances generate any dissalutations in our mind against the prosecution case. We do not, in these circumstances, find any reason to interfere with the impugned verdict of guilty and conviction by the Trial Court.

78. No other contentions are raised. There is no plea that on the findings of fact, the conviction is not justified. We are satisfied, in these circumstances that this appeal only deserves to be dismissed.

79. We do, in these circumstances, dismiss the appeal. We think it appropriate to observe that the counsel had assisted us meticulously by taking us through all the relevant facts and minute details. Such endeavour on the part of the counsel deserves to be acknowledged with appreciation