Judgment

THOMAS, J.

( 1 ) A young enceinte housewife fell from the top of a four-storeyed building down on the pavement of a street at Madras during the odd hours on the night of 9-6-1987, and died in a trice with her skull and the bones extensively broken into pieces. Initially it was taken by the neighbours and the police as a case of suicide, but eventually it became a case of gruesome murder. Her husband, a flourshing businessman at Madras (now Chennai) and his brother (another businessman) and two of their employees were put on trial in the Sessions Court for criminal conspiracy, rape and murder. One of the culprits was made an approval and he gave evidence in support of the prosecution case. The Sessions Court acquitted the husband of the deceased, but convicted the other two persons of murder and rape and sentenced both of them to death.

( 2 ) A Division Bench of the High Court of Madras heard the reference which was made under Section 366 of the Code of Criminal Procedure on the sentence of death, along with the appeals preferred by the convicted persons as well as the appeal preferred by the State in challenge of the acquittal. The Division Bench confirmed the acquittal and set aside the conviction and sentence passed by the Sessions Court. Hence the present appeals by special leave.

( 3 ) FIRST accused Ramesh Kumar and his younger brother Suresh Kumar (A2) hailed from Rajasthan, and they have settled down in Madras. Each of them acquired separate business establishments. Ramesh Kumar, the eldest, had married Kamla Devi (the deceased) who was then only 19 and belonged to a less affluent family in Rajasthan, about four years before her death. Thereafter the couple lived on the top floor apartment of a multi-storeyed building situated on Thulasinga Mudali Street at Madras. Second accused Suresh Kumar got married to a girl from Rajasthan a few months before the occurrence but he did not bring his wife to Madras from Rajasthan. He too was residing with his eldest brother Ramesh Kumar on the 4th floor of the building. Kamla Devi (deceased) had a little child (Sandeep) who was only 4 years old when she died.

( 4 ) AS the business of first accused expanded he started entertaining a feeling that if he had married from a rich family he would have got a handsome dowry. This led to some estrangement between the spouses. Second accused Suresh Kumar did not see eye to eye with Kamla Devi (deceased) for certain reasons of his own, one among them alone has come to the forefront in evidence that he believed that Kamla Devi was injecting hatred in the mind of his brother that A. 2 was becoming a habitual drunkard.

( 5 ) IN the above backdrop, the synopsis of the prosecution case having an eerie profile, can be narrated as follows :a couple of days prior to the death of Kamla Devi her husband Ramesh had gone abroad (Singapore) in connection with his business and before he left India he and the other three culprits had entered into a criminal conspiracy to finish Kamla Devi off during his absence. After he left, second accused informed the remaining culprits that the best way to achieve the target was to drop her down from the top floor of the building so that it would appear to the rest of the world that she had committed suicide.

( 6 ) ON the midnight of 9-6-1987 when everybody else was asleep the three culprits (A2-Suresh, A3-Kuman Singh and PW1-Bhoparam) moved from the room on the 4th floor where they were to sleep and entered the room where deceased was sleeping with her little child Sandeep. They first gagged her mouth with a cloth but then she woke up and instinctively resisted the onslaughts of the assailants. But she was overpowered and the third accused pressed her neck and mouth on the direction of the second accused who was holding her in his grip while she was struggling to squirm out of the lethal grip. In that melee the bangles on her hand broke down. PW-1 caught hold of her legs and the second accused sexually molested her