JUDGMENT
Rengasamy, J.
1. These appeals arise from the judgment of the learned Principal Sessions Judge, Madurai, in S.C. No. 164 of 1993, convicting the appellants in C.A. No. 145 of 1994, for the offence under Section 302 read with 34, I.P.C., to undergo life imprisonment, while the appellants in other two appeals have been convicted for the offence under Section 201, I.P.C. to undergo rigorous imprisonment for three years. The first appellant in C.A. No. 145 of 1994, also has been convicted under Section 201, I.P.C., to undergo R.I. for three years, and the sentence is directed to run concurrently. The alleged occurrence took place in Thiru-Nagar of Madurai, in Kumaran Street, within the jurisdiction of Thiru-Nagar Police, on 29-12-1990.
2. The case of the prosecution can be stated briefly as follows :-
(i) The 1st accused (first appellant in C.A. No. 130 of 1994) is the father of the accused Nos. 2 and 4 (1st appellant in C.A. No. 145 of 1994 and 2nd Appellant in C.A. No. 130 of 1994), 3rd accused (2nd appellant in C.A. No. 145 of 1994) is the wife of the 2nd accused. The 5th accused, who is the sole appellant in C.A. No. 131 of 1994, is the family friend of the other accused. The deceased Valli, daughter of P.W. 8 was sent to the house of the A-1 about three years prior to the occurrence, as her elder sister Selvi was married to A-1 (first appellant in C.A. No. 130 of 1994) P.W. 6 is residing behind the neighbour of A-1 to A-4.
(ii) On 29-12-1990, by about 12.00 noon, P.W. 6 heard the screaming voice from the house of A-1, and when he came to the house of A-1, he saw the deceased Valli being burnt by fire P.W. 6 and A-2 poured water to put out the fire. The 2nd accused told P.W. 6 that he would look after the rest, so that P.W. 6 could go home.
(iii) P.W. 7 was a maid-servant working in the house of A-1, and on 29-12-1990, she came to attend the work after finishing her lunch, by about 2’o clock, when she entered the house, she found the deceased Valli dead with burn injuries and her boy was near the door. A-2, A-3 and A-4 were sitting inside the house and she also saw inside the house the deposit of soot and smoke on the walls and doors. When she questioned as to how it had happened, the 2nd accused asked her to mind her business. She took A-3 and her children to the father’s house of A-3 in Dindigul and leaving them there, she returned back to Madurai on the next day. The 2nd accused asked her to wash the entire house and she swept the house and also washed it.
(iv) A-4 is a friend of P.W. 13, and on 20-12-90 A-4 was in the xerox shop of P.W. 13, from the morning, and they finished their lunch by about 10’O clock. P.W. 10 who was working inice land (sic), situate in Kalaivani Theatre, received a phone message from A-2, requesting P.W. 10, to convey to A-4, come home. P.W. 10 conveyed this to A-4 and A-4 immediately left for his home.
(v) On the same day at about 6.00 p.m., A-4 went to the shop of P.W. 11 and purchased a fibre cord (Vernacular matter omitted) on the same night at about 10.00 p.m., when P.W. 5, was standing in Thiru nagar 6th bus stop with one Mayathevar, they saw the 4th accused going in a motor-cycle with a gunny bag in the pillion towards west. A-2 was following that motor-cycle in another motor-cycle.
(vi) On the next day morning, P.W. 2, who is a village menial (Thalayari) of Keelaorappanur village, heard that a gunny bag was lying in a place known as ‘Otha-Alasu’ in Orappanur lake. P.W. 2 immediately proceeded there, and finding the gunny bag lying in Otha-Alasu, he united the cord and found another bag inside and when that also was united, he saw a body of a woman partly burnt.
(vii) Immediately, he went to Thirumangalam and conveyed this to P.W. 1, the village Administrative Officer, who along with P.W. 2, came to the place, where the gunny bag was lying, and he also on verifying the correctness of the statement made by P.W. 2, returned back, and prepared a report Ex. P. 1. He went to Thirumangalam Police Station, and handed over the report Ex. P. 1 to the police, and the police officer-in-charge of the station registered the same in Cr. No. 978 of 1990, for the offence under Section 302, I.P.C.
(viii) P.W. 19, the Inspector of Police, received the copy of the F.I.R., and proceeded to the scene. In the presence of P.W. 4 and another he prepared the observation mahazar Ex. P-2, and also rough sketch Ex. 19. He seized the gunny bag M.O. 1, containing the body and the covering gunny bag – M.O. 2, and also the burnt bits of skirt-M.Os. 3 and 4, and also the fibre cords M.Os. 5 to 7. There was also a partly burnt plastic can – M.O. 8. They were seized under Ex. P. 3 Mahazar by P.W. 19 in the presence of P.W. 4 and another. He held inquest in the presence of P.W. 4 and another. He held inquest in the presence of the Panchayatars, between 2.15 p.m., and 6.15 p.m. Ex. P. 20 is the inquest report. He handed over the body of the deceased to P.W. 16 for being handed over to the Doctor with a requisition Ex. P. 14 for doing the Post-mortem.
(ix) P.W. 3 who is a resident of Thiru-Nagar, heard that the girl Valli, who was employed in the house of A-1 was done to death and therefore, by about 12.30 p.m. he came to the house of A-1. The 1st accused was in the house and when he questioned A-1, as to the information he received, A-1 replied that he did not know anything about it. As he suspected some foul-play in the house of the A-1, he went to Thiru-Nagar Police Station, on the same night at 8.30 p.m. and gave a petition Ex. P. 21, to the Inspector of Police, P.W. 20. At the time P.W. 20 received a wire-less message from Thirumangalam Police Station, as to the body of a girl kept in a gunny bag. P.W. 20, immediately proceeded to the Thirumangalam Police Station, along with P.W. 3, and taking P.W. 19 also with them, they proceeded to the Government Hospital, Thirumangalam, where the body of the deceased was kept. P.W. 3, identified the body as that of Valli.
(x) P.W. 20 informed P.W. 19, as to the place of occurrence and thereafter, the F.I.R., registered in Thirumangalam Police Station was transferred to Thiru-Nagar Police Station and P.W. 20 registered the same in Cr. No. 708 of 1990, under Section 302, I.P.C. Ex. P. 22 is the express report sent by P.W. 20 to the Court and other police officers. He also sent a police constable to Semmanur village, to bring P.W. 8, the father of the deceased, P.W. 8, who came to Thirumangalam had identified the deceased, as that of his daughter Valli, in mortuary.
(xi) P.W. 20, proceeded to the house of A-1, and he found the same kept locked. He received the key from P.W. 7, and opened the house in the presence P.W. 5. He seized the smoke deposited hurricane light – M.O. 9, and match box M.O. 10 under Ex. P. 4. He also seized the charcoal – M.O. 11, partly burnt broom stick – M.O. 13, burnt skirt pieces – M.O. 14, and burnt wooden pieces – M.O. 16 under Ex. P. 5. The soot deposited earth – M.O. 12 and partly burnt wooden pieces-Ex. P. 15 were seized under Ex. P. 6. He also prepared an observation mahazar Ex. P. 23 and rough sketch Ex. P. 24 in the presence of the witnesses, in respect of the house of A-1.
(xii) P.W. 17, who was working as Medical Officer in Thirumangalam Hospital, conducted the postmortem on 31-12-1990 at 3.30 p.m. on the body of the deceased girl and he found the charred burns involving all the sides of neck, trunk, all the four limps, chest, back of the chest except the intercapular region with the bones intact and exposed heat splits present in front of the left side abdomen, wrist joint both sides and both heels. He found superficial burns present in the face, left side of scalp intrascapular region. There was peeling of the skin. The base of the superficial burns was red in colour in the intrascapular region. Through the heat split area in the left lower part of the abdomen in the front side (size 20 cms. x 4 cms.) loops of intestines were seen protruding out. There was no bleeding in the wound. Vagina found charred. Hymen was red in colour. Old tears present. Inguinal region was completely burnt. Tongue seen protruding out in the mouth. Singeing of hair present in the scalp, arm pits, and pubic area. On internal examination, no fracture and no blood in the thoracic cavity. The lungs found in the decomposition stage and the cut section was congested. There was congestion frothy fluid in the trachea and larynx. The other organs were normal. Ex. P. 18 is the post-mortem certificate. The stomach and its contents, intestines and contents, sample of liver, kidney were preserved in saline solution. Blood, hair from the scalp, skin uterine contents, skull bone and vaginal smear, also were taken for preservation. These materials were sent to the forensic laboratory and the report Ex. P. 15, was received by the medical officer along with Ex. P. 16. After considering the viscera report and the injuries found on the body of the deceased, he was of the opinion, that the death was due to extensive ante-mortem burn injuries. Ex. P. 17 is the final report given by P.W. 17.
(xiii) After the post mortem, P.W. 16, recovered the bangles – M.O. 22, brass-ear-ring – M.O. 23, the brass chain with pendant – M.O. 24, the brass-nose-screw – M.O. 25 and the cord used for tying the body – M.O. 26, jacket – M.O. 27 under form No. 91, and handed over the same in the police station.
(xiv) P.W. 20 continued the investigation, and was searching for the accused. On 2-1-1991, at about 5.00 p.m. he arrested the 1st accused, opposite to Thirumangalam bus stand, and when A-1 was interrogated in the presence of P.W. 14, and one Mayadi Thevar he gave a statement, the admissible portion of which is marked as Ex. P. 10. A-1 took the police officer and the witnesses to his house and produced M.O. 19 – dhoti and M.O. 20 – towel containing bloodstains and deposit of soot. The Inspector of Police seized them under Ex. P. 11 mahazar.
(xv) On the same night at about 10.00 p.m., the Inspector of Police arrested A-3 also in her father’s house in Dindigul. On 3-1-1991, at about 10.00 a.m., he arrested A-2, in Thiru Nagar 8th bus stop and when he was questioned, he also made a statement, the admissible portion of which is marked as Ex. P. 7. A-2 took the police officer to his house and took out M.O. 17 blood-stained dhoti and a cobweb stick – M.O. 18. They were seized under Ex. P. 8 in the presence of P.W. 9 and another. On 5-1-1991, at 7.00 p.m. P.W. 20 arrested A-4 when he was coming in a motor-cycle (M.O. 21) bearing registration No. 59-6585 towards Thiru-Nagar, in the presence of P.W. 15. When he was interrogated, he gave a statement, the admissible portion of which is marked as Ex. P. 12. In the silencer portion of the motor-cycle, they found blood stains, and the same was scraped and seized under Ex. P. 13.
(xvi) A-5 surrendered before Judicial Magistrate No. 2, Madurai, on 2-1-1991, and the Inspector of Police, obtaining permission from the Judicial Magistrate, examined A-5 in the jail. He collected a group photograph from Selvi, the wife of A-1, as that photograph contained the deceased Valli also.
(xvii) On 11-1-1991, P.W. 20, sent a requisition Ex. P. 25, to Judicial Magistrate No. 7, Madurai, for causing the articles seized by him to be sent to forensic laboratory for chemical examination, Ex. P. 26 is the covering letter of the Judicial Magistrate, for sending the articles. He received the reports Exs. P. 27, P. 28, and P. 29, from the forensic laboratory and Ex. P. 30 is the serologist’s report.
(xviii) On 16-2-1991, P.W. 20 seized the motor cycle TN-59-2916, in the house of one Ramamoorthi father in law of A-5 under Ex. P. 9 in the presence of P.W. 12. While the investigation was almost completed, P.W. 20 was transferred and his successor, examined the Medical Officer and other witnesses, and filed the charge-sheet on 3-2-1993.
3. After the committal of the case by the Judicial Magistrate to the Court of Sessions, the learned Principal Sessions Judge, Madurai, framed charges against A-2 and A-3 for the offence under Section 302 read with 34, I.P.C., and against the accused 1, 2, 4 and 5 for the offence under Section 201, I.P.C. These accused/appellants pleaded not guilty and wanted trial of the case.
4. The prosecution examined 20 witnesses to support the case of the prosecution, of whom P.W.’s 6, 7, 10 and 12 turned hostile. After the evidence on the side of the prosecution, the accused/appellants were questioned under Section 313, Cr.P.C. to explain the incriminating circumstances found against them. They totally denied their complicity in the crime and produced the deposition copies of P.W. 5, to show that he had deposed in seven criminal cases. No witness was examined on the side of the accused.
5. The learned Principal Sessions Judge, Madurai, after considering the oral evidence, the documents and also the circumstances found against these appellants, has found that the prosecution has established the offence under Section 302 read with 34, I.P.C. against A-2 and A-3 and as against the A-1, A-2, A-4 and A-5, under Section 201, I.P.C. Therefore, he inflicted the sentences in the manner stated above in the opening paragraph. Aggrieved by this conviction and sentence imposed upon these appellants, they have come forward with these three appeals separately.
6. The prosecution solely relies upon the circumstantial evidence to prove it’s case. The learned senior counsel Mr. N. T. Vanamamalai, appearing for the appellants in C.A. No. 145 of 1994, would contend that in this case, the evidence has not even made out an offence, to connect the accused with the alleged crime, viz., under Section 302 or Section 201, I.P.C., and the lower Court has found the accused Nos. 2 and 3 (Appellants in C.A. No. 145 of 1994) guilty of the offence under section 302, I.P.C. without assigning any reason, but on mere conjecture, when there is nil evidence for such a heinous crime of murder alleged against these appellants. He also would contend that the findings of the lower Court are totally erroneous, contrary to law and without any basis or reasons.
7. On the other hand, the contention of the learned Additional Public Prosecutor is that there are materials from the circumstantial evidence, available, from the evidence of P.Ws. 5 and 7, apart from the conduct of the accused Nos. 1 to 4, to prove that the offences alleged have been committed by them. However, the learned Additional Public Prosecutor, concedes that there is no evidence to prove the offence against the A-5, who is the appellant in CA. No. 131 of 1994, and he might be acquitted.
8. We went through the evidence and from the evidence of P.W. 8, we are able to see that the deceased Valli was sent to the house of A-1, to assist her sister Selvi, who was married to A-1 (first appellant in C.A. No. 130 of 1994) in her domestic works, about three years ago. For nearly three years, she was staying in her sister’s house.
9. On 30-12-1990, P.W. 2, the village Menial of Orappanur Village came to know that a gunny bag was kept in Orappanur big lake and he came to the place, where the gunny bag was kept, and when he untied the gunny bag, he found a body of a young woman, kept inside the gunny bag. Immediately, he reported the same to the Village Administrative Officer – P.W. 1, who also verified the information given by P.W. 2, and thereafter, he went to Thirumangalam Police Station and lodged the complaint Ex. P. 1, which was registered in Cr. No. 978 of 1990.
10. P.W. 19, the Inspector of Police, took up the investigation, and at that time, he was not able to ascertain the identity of the deceased. However, he seized the articles viz., the gunny bags – M.O.’s 1 and 2, the burnt bits of the skirt – M.Os. 3 and 4, the fibre cords (M.Os. 5 to 7) used for tying the gunny bag, the body of the deceased, half burnt plastic can – M.O. 9 under Ex. P. 3 mahazar in the presence of P.W. 4. On 30-12-1990; P.W. 3, who claimed to be a social worker, on hearing that one Valli, the deceased in this case, in the house of A-1 was killed, came to A-1 and when he made enquiries about the allegations relating, to the death of Valli, the A-1 denied knowledge. Therefore, P.W. 3, went to Thiru-Nagar Police Station and gave a petition Ex. P. 21, about the death Valli, by violence in the house of A-1, P.W. 20, the Inspector of Police, though received that complaint against A-1, did not register a case. However, he received a wireless message, that a body of a young girl was seized from the Orappanur lake, and therefore, he along with P. W. 3, went to the Thirumangalam Police Station and along with P.W. 19 they proceeded to Thirumangalam Govt. Hospital, where the body was kept for post-mortem, and according to P.Ws. 19 and 20, the Inspector of Police, the body was identified by P.W. 3, as that of Valli. The F.I.R. from Thirumangalam Police Station was transferred to Thiru-Nagar Police Station where Ex. P. 22 F.I.R. was registered. Even though, P.Ws. 19 and 20, would say that P.W. 3 identified the body of the deceased, as Valli, P.W. 3 would say that others said that the body was that of Valli. Somehow, from the F.I.R. it appears, that the indetity of the body was ascertained as that of Valli, and therefore, in the F.I.R. Ex. P. 22, itself, it is mentioned that the body was that of Valli, as identified by P.W. 3.
11. P.W. 3 would admit that the A-1 was not known to him previously. Therefore, there was no possibility for P.W. 3 to identify the deceased Valli, from the body. P.W. 3 also would rightly admit that others said that the body was that of Valli. Anyhow, as mentioned above, the F.I.R. itself reads that the body was identified as Valli. Therefore, somehow the identify of the deceased was fixed as Valli, even when the F.I.R. was issued. But the identify of the deceased was later confirmed, soon after the arrival of P.W. 8, the father of the deceased. P.W. 8 was sent for on the night of 30-12-1990, and it appears that he reached the Hospital at Thirumangalam, on 31-12-1990.
12. P.W. 8 in his evidence would say that he went to the Government Hospital, along with the police constable who brought him, and he found the body of his daughter Valli, and as the face was so clear, he was able to easily identify his daughter.
13. It was argued for the appellants, that the body of the deceased has not been properly identified by the witnesses, that even before the arrival of P.W. 8, it was mentioned in F.I.R., that the body was that of Valli, and as the F.I.R., reads that the body was that of Valli, the investigation also subsequently proceeded on the assumption, that the deceased was Valli, and therefore, P.W. 8 also had to say that the deceased was his daughter. As a matter of fact, a superimposition test also has been conducted by the forensic department in this case, and the evidence of P.W. 20 is that a group photo with the deceased Valli was obtained from Selvi, the wife of A-1, and this photograph was examined along with the photograph of the body of the deceased and the forensic report Ex. 27 reads that the item No. 1, viz., the skull base vault and mandible sent to the forensic laboratory belong to the girl, who was standing on the extreme right of the photograph shown as item No. 2, in the forensic report. But, as rightly contended by the learned senior counsel for the appellants, no one has identified the girl in the photograph as Valli. The photograph used for superimposition test, was not shown to P.W. 8, to identify the girl in the photograph or the wife of the A-1, Selvi would have been examined, because the photograph is said to have been collected from her and she could have been asked to identify the young girl in the photograph. Therefore, without knowing the identify of the girl in the photograph, the super-imposition test also is of no value, to accept that the deceased was Valli.
14. However, we cannot ignore the evidence of P.W. 8 the father of the deceased. We also perused the photographs taken by P.W. 18, one of the photographs in M.O. 28 series clearly expose the face of the deceased. Even though there was burnt injuries all over the body the face was so clear, and therefore P.W. 8, the father of the girl could have easily identified the body, from the face, and therefore, his evidence, that he was able to identify the deceased on seeing the face is more acceptable and found to be true. Learned Public Prosecutor, appeared in the trial Court should have pointed out this photo also to P.W. 18, when he was in the box, to identify the body of the deceased by P.W. 8. Somehow it is an omission, on the part of the prosecution, while conducting the trial.
15. It was argued for the appellants, that P.Ws. 1 and 2 who spotted the body of the deceased, when the same was found in the lake, have mentioned in their evidence that the body was that of a woman, of 25 year old, and the Doctor who conducted the post-mortem P.W. 17 also his Post-mortem report, would say that the body was that of a woman around 25 years of old, but P.W. 8, the father of Valli, in his evidence would say that his daughter Valli, attained puberty about three years before 1990, when she was aged 15 years, and therefore, at the time of this occurrence in the year 1990, her age was only 16 years, and as there is marked difference between the age of Valli, who was only 16 years, whereas the body was that of a woman aged 25 years, the body cannot be that of Valli.
16. P.Ws. 1, 2 and 17, have been given only an approximate age from the appearance of the body. The body was burnt and it must have been bloated when the witnesses, including the Doctor examined the body. Therefore, it might have given a deceptive appearance as to the age, because of the changes in the body. Therefore, the evidence of P.Ws. 1, 2 and 17, with regard to the age, which they had estimated cannot be accurate, while the evidence of P.W. 8, who identified the body, from the identity of the face, is more acceptable. Therefore, in this case, the identity of the deceased is established, as that of Valli, the daughter of P.W. 8.
17. P.W. 17, the Doctor who did the post-mortem, has given in Ex. P. 18-post-mortem certificate, the injuries, viz., the burns all over the body of the deceased, and in his final report-Ex. P. 17, the Doctor would say that the death was due to extensive ante-mortem burns sustained by the deceased girl. As the death was due to the burn injuries, these burns could have been sustained either by accident, or homicide violence or even by suicide also.
18. As the prosecution relies upon only the circumstantial evidence in this case, the circumstances available in this case, must rule out all the possible hypothesis for the innocence of the accused. In Hanumant Govind Nargundkar v. State of Madhya Pradesh, , the Apex Court has laid down the dictum, observing that “Where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the built 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”.
19. In a recent decision of the Supreme Court, the same view has been expressed in Balwinder Singh v. State of Punjab, , repeating the dictum, that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence the Court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever, strong they may be to, take the place of proof”.
So, now let us proceed to consider the question, whether the evidence placed before the Court has the complete link to prove the offence alleged, and also the link of these accused-appellants with the crime alleged.
20. Even though P.W. 6 who is residing behind the neighbour of A-1, and P.W. 7, a maid servant had stated something against these appellants, at the time of investigation by P.W. 20, by stating that the accused had met with violence in the hands of A-1 and she was burning in the presence of A-2 and A-3, when these two witnesses came to the trial Court to give evidence, they did not support this version, though P.W. 7, the maid servant would support the prosecution case, to some extent only.
21. P.W. 6 has stated before the Investigating Officer that the deceased was being burnt with fire in the presence of A-2 and A-3. P.W. 7, in her statement under section 161, Cr.P.C., has stated that the body was lying with burn injuries on 29-12-1990 afternoon, when she went to attend her work, and when she asked as to what had happened, they asked her to mind her business, and thereafter, she was asked to take A-3 and her children to Dindigul, and on the next day i.e. on 30-12-1990, she was asked to wash and clean the house. But, now P.W. 6 would say that he did not state so as mentioned in 161 statement to the police. P.W. 7 would say that she found the deposits of soot in the walls of the house of A-1, and when she questioned as to how it had happened, they did not tell anything, but directed her to attend to her work. So, from the evidence of P.W. 7, the only material placed before the Court is that P.W. 7 was able to see the deposits of soot in the house of A-1, and this state of condition has been recorded by R.W. 20, in the observation mahazar-Ex. P. 23. No doubt, P.W. 7 has mentioned about the cleaning of the house, on the direction of the accused persons. P.W. 20 was able to see the remnant of the soot along the drainage pipe and also the deposit of the same in the store-room walls. In Ex. P. 23, there is a mention about the evidence for the smoke passing through the ventilator also. This evidence of P.W. 7, which is supported by the observation mahazar Ex. P. 23, is only with reference to the state of condition in the house of A-1.
22. But the question is whether this material is sufficient to hold that the crime of murder has been perpetrated in the house of A-1, by burning the deceased. At the most, the deposit of the soot and the remnants of the same along with the drainage pipe after cleaning in the house would only indicate that there was burning in the house. As mentioned above the burning could have been either accidental or suicidal also.
23. There is one important piece of circumstance brought out from the evidence of P.W. 6, even at the time, when he was examined by P.W. 20. P.W. 6 has stated to the Inspector of Police, that after hearing the screaming voice from the house of A-1 he rushed to the house of A-1, where he saw the deceased-Valli, who was actually in flames, when A-2 and A-3 were present in the house, and A-2 and himself (sic) brought the water from the bath-room and poured the same over the deceased to put out the fire. Therefore, a question will arise, whether the A-2 who is said to be the responsible, for the death of deceased, by setting fire would have attempted to put out the fire, by pouring water on the body of the deceased. The prosecution is not able to answer this question. Therefore, this circumstance, which relates to the conduct of A-2, for his fighting with fire to save the deceased-girl, goes against the prosecution theory, that he is the perpetrator of the crime of murder. Anyhow even though the evidence of P.W. 7, and the observation mahazar Ex. P. 23, show the sudden engulfing of fire in the house of A-1, somewhere on 29-12-1990, there is nothing to show that this fire was lit by A-2 and A-3 for the purpose of burning the deceased-Valli.
24. The next evidence available is from the mouth of P.W. 5, who would say that he saw A-4 going in a motor cycle with a gunny bag in the pillion, and A-2 following him in another motor-cycle, one or two days prior to 31-12-1990, on which day, the observation mahazar was prepared in his presence by P.W. 19. It was argued by learned Additional Public Prosecutor, that the body of the deceased-Valli was lifted from the house of A-1 and after being transported to Orappanur lake, where it was thrown, the evidence of P.W. 5 shows that A-4 and A-2 were actually engaged in transporting the body of the deceased in a gunny bag and, therefore, this is another important circumstance to connect these accused with the crime. But, P.W. 5 has not identified the gunny bags-M.Os. 1 and 2 to say that these gunny bags were found in the pillion of the motor cycle driven by A-4. Further, he has not even identified the vehicle, which was driven by A-4. For the reason, that a gunny bag was kept in the pillion of the motor-cycle, driven by A-4, can we presume that the gunny bag contained a dead body ? The law will not permit for such inference, in the absence of any evidence. Therefore, even if it is accepted that what P.W. 5 had seen is true, it will not establish that A-4 had carried the body of the deceased in his motor-cycle, followed by A-2.
25. There is one another circumstance to suspect the evidence of P.W. 5 himself, as it is stated that he is a police informant, always in Courts to give evidence in favour of the police. P.W. 5 was cross examined, with a suggestion that he had deposed in number of cases, in support of the police. But he denied it. When the accused had given their statements under S. 313. Cr.P.C. they have produced the deposition copies of P.W. 5. in seven cases, all in support of the Police. Even though now it was argued by learned Addl. Public Prosecutor, that as P.W. 5 happened to be a witness relating to those occurrences, on account of which he came to the Court to give evidence in those cases, had this explanation been given by P.W. 5. when he was in the witness box, certainly it can be appreciated, but he wanted to suppress the fact of giving evidence in several cases, and simply denied, when he was in the box, and therefore, now this explanation cannot be accepted. The documents produced before the Court. viz., the depositions of P.W. 5. in seven criminal cases, in support of the prosecution, would certainly discredit the testimony of P.W. 5. that he is a stooge of the police, always coming to the Court to support the prosecution cases. Therefore, we are not prepared to give any weight to the evidence of P.W. 5. who would say that he saw A-4 carrying a gunny bag in his motor-cycle, even though this evidence is also harmless, as it will not connect the A-4 with the crime alleged against him under S. 201, I.P.C.
26. Barring these two circumstances available from the evidence of P.W. 7 and P.W. 5, the other circumstance is the conduct of the A-1 to A-4, in not informing the death of Valli to her father P.W. 8. The learned Additional Public Prosecutor, would contend that if the death of Valli was due to any accidental fire, these accused would have sent word to P.W. 8 the father of the girl, but the body was disposed of secretly, and no intimation also was given to the father and this conduct of A-1 to A-4 would establish the truth that they were responsible for the death of Valli, and therefore, in order to suppress the crime, the body was disposed of, and intimation also was not given to the father of the girl. Once, if the death was unnatural, either by fire accident or by suicide, naturally the persons who were available at the time of occurrence, had to face all sorts of enquiry by the police, and some times in the name of enquiry or investigation, the persons or inmates of the house will be detained in the police station. They have to meet the harsh treatment and face lot of inconveniences, even if they were not responsible for such occurrence. Therefore, everyone will be afraid of revealing the truth, that he or she was present in the place of occurrence of an unnatural death. In this case, as the deceased was in the house of A-1, the inmates of the house cannot deny their presence in their house, when the fibre broke out. Therefore, there is every possibility for quick disposal of the body of the deceased, on account of the fear of hardships mentioned above. It is on account of this fear, the occurrence might have been completely concealed, even without informing the father of the girl. From the screening of the body or suppression of the occurrence, Courts cannot infer or presume that file crime had been committed against the deceased person, unless there are materials to implicate the persons in the crime alleged.
27. If the deceased had set fire to herself and committed suicide for any reasons, which we cannot rule out, naturally the inmates of the house viz., A-1 to A-4 were bound to explain to the police, as to the reason for her taking the extreme step to commit suicide and till the police was satisfied that the death was only on account of suicide, the inmates of the house had to face all the hardship, and detention also. Therefore, there was every apprehension for A-1 to A-4 to dispose of the body quickly, and suppress the death of the deceased even if the same had happened, not at their hands, but on the decision of the deceased herself. Therefore, the fear psycho may also cause such a conduct in the innocent persons to behave in such a manner, as had happened in this case, and from that conduct alone, we cannot presume that these appellants had committed the crime as alleged.
28. But the learned Additional Public Prosecutor would refer to the decisions of the Apex Court in Kuthuval Yadav v. State of Bihar, and Dr. V. K. Saxena v. State of Uttar Pradesh, wherein the Apex Court had accepted the guilt of the accused persons, from their conduct and behaviour. In the former case, the victim, a old woman in the custody of the accused person had a patch of ecchymosis, on the left side of the chest over the second and third intercostal space along with mammary line, and the injury also had caused a fracture of the third rib and the chest bone near it (sternum) attached to the third rib and the Doctor was of the opinion, that the anti-mortem injuries were caused either by blows with a hard and blunt substance or by applying heavy pressure on the chest. The defence of the accused was that the old woman died of natural death. As the injuries on the deceased should have been caused only by hard and blunt substance or by applying heavy pressure on the chest, there was no possibility for such injuries without the knowledge of the accused, who had obtained a document from her in his favour.
29. In the latter case, the accused was none-else than the husband of the deceased, who was arrested when he was attempting to dispose of the body of his wife, by packing the dead body in box and threw that from a running train into a river, by travelling some distance. He took up the defence that his wife had committed suicide by hanging. But on investigation, no rope was found in the house and the medical evidence showed a fracture of hyoid bone, and did not show the sign for suicide by hanging. The investigation revealed that the accused/husband used to harass and pressurize and assault his wife in the quarrel, as he had illicit affair with a nurse. As there was no sign for suicide by hanging, the Apex Court, in that case took the view that the death must have been only by homicidal violence.
30. In both the cases referred to above, it was made clear that the death could not have occurred, except by homicidal violence, and therefore, the persons with whom the deceased had the company in the last moment was prosecuted and their behaviour in disposing of the dead body had connected them with the crime. But, in this case, it cannot be concluded that the death of Valli must have been only by homicidal violence. Therefore, these decisions are not helpful to the prosecution, to fix the guilt of the accused, the behaviour and conduct of the accused.
31. A-1, A-2 and A-4 were arrested on different dates by P.W. 20, the Inspector of Police, and it is the case of the prosecution that on their confessions after arrest, certain articles viz., the dothis and towel were seized from them. It is also the case of the prosecution that the dothi – M.O. 17 and towel M.O. 18, recovered at the instance of A-1 contained bloodstains, and the dothi M.O. 17 also contained bloodstains and evidence has been let in to show that M.O. 21 motor cycle seized from A-2 had the bloodstains on its silencer part, and according to P.W. 20, the blood stains were scrapped and the forensic laboratory has found that the same was the stains of human blood. But, there is nothing to show that the bloodstains found in the dothis seized from A-1 and A-2 and the bloodstains found in the silencer part of the motor cycle M.O. 21 was that of the deceased. The blood group of the deceased has not been ascertained, and therefore, from the bloodstains alone, it cannot be concluded that these persons had link with the death of the deceased-Valli. It is common to have the bloodstains in the clothes, because sometimes one may scratch or scrape with nails’ when itches and there is possibility for blood coming out from the small bruise. The presence of bloodstains in the silencer of the motor-cycle is possible, if the vehicle had met with any accident. Anyhow when it is not established that the bloodstains found in the clothes and the motor-cycle was that of the deceased, it is not safe to hold that these accused persons were responsible for the death of the deceased.
32. Learned senior counsel Mr. N. T. Vanamamalai, Mr. K. S. Ramachandran and Mr. T. R. Ravi, learned counsel appearing for the appellants would contend that the recovery from A-1 cannot be true, in view of the reason that he was found in the police station, even on 31-12-1990, as stated by P.W. 8, and therefore, the alleged confession and recovery from A-1 cannot be true. They also would argue that as the evidence of P.W. 20 is that A-1 was arrested only on 2-1-1991. A-1 could have gone to the police station, on 31-12-1990 to inform to the police about the death of the deceased-Valli, and there is nothing for adverse comment, about the conduct of A-1. In view of the evidence of P.W. 8, who would say that he saw A-1 in the police station even on 31-12-1990, the alleged confession and the recovery of M.Os. 17 and 18, at the instance of A-1 also becomes suspicious.
33. In Ex. P. 28, forensic report, the comparison of the human hair is referred to. Even assuming that the burnt hair taken out from the scalp and the hair found in the dustpin placed outside the house of A-1 were that of the deceased-Valli, it is not going to support the prosecution case, because even if the death of Valli in the house of A-1 due to burn injuries is accepted, unless it is established that the death was due to the homicidal violence, no case is made out against these appellants. Therefore, the comparison of the hairs, as mentioned in Ex. P. 28 report is not helping the prosecution.
34. As discussed above, the evidence placed before the Court do not rule out the possibility of the death of Valli, by suicide of fire accident and when that possibility is not excluded, there cannot be any inference or conjecture for the offence under S. 302, I.P.C., against the accused Nos. 2 and 3, because the suspicion cannot take the place of legal proof, which is wanting in this case.
35. On a proper consideration of the entire evidence, we find that the prosecution has not fulfilled the test laid down by the law of this land to satisfy the conscience of the Court, that the deceased was put to death at the hands of A-2 and A-3. As the circumstantial evidence in this case is quite inadequate to prove the offences alleged against these appellants, the Court below has committed the error, in finding these appellants guilty of the offences under S. 302 and S. 201. I.P.C. The only offence alleged against A-1 and A-4 is the offence under S. 201. I.P.C. when the offence against A-2 and A-3 under S. 302. I.P.C., itself has not been established, the other accused cannot be convicted for the offence under S. 201, I.P.C.
36. Taking into consideration of all these aspects, we are of the firm view that the prosecution has not established the case against these appellants beyond all reasonable doubt, and therefore, they are entitled for acquittal. Accordingly, the convictions and sentences imposed upon these appellants are set aside, and the appellants are acquitted of all the charges. All the appeals are allowed. The accused Nos. 2 and 3/appellants in C.A. No. 145 of 1994, who are undergoing the sentences are set at liberty forthwith. The bail bonds of others are cancelled.
37. Appeals allowed.