IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.06.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.594 of 2006 Sekar .. Appellant vs. State of Tamil Nadu rep. By its Inspector of Police Uthiramerur Police Station Kancheepuram. Crime No.103/2004. .. Respondent Criminal Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment of the learned Additional Sessions Judge, (Fast Track Court-II), Kancheepuram, dated 30.01.2006, in Sessions Case No.92 of 2005. ----- For Appellant : Ms.Lakshmi Devi For Respondent : Mr.N.R.Elango Addl. Public Prosecutor ----- JUDGMENT
(Delivered by P.D.DINAKARAN,J)
The above appeal is directed against the judgment dated 30.01.2006 in S.C.No.92 of 2005 on the file of the learned Additional Sessions Judge (Fast Track Court-II), Kancheepuram, convicting and sentencing the appellant herein, to undergo life imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo rigorous imprisonment for six months for the offence punishable under Section 302 IPC and to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for three months for the offence punishable under Section 201 IPC.
2. The charge against the accused is that the accused was having illicit intimacy with one Karuppayyee, objecting to this there were frequent quarrels between the accused and the deceased/wife. On the fateful day, i.e. on 20.2.2004 at 3.00 p.m. when the accused returned home from the field and asked his wife to serve lunch, the deceased/wife refused to do the same and scolded him in smutty words, provoked by that and with intention to kill her, he assaulted her by his hands on her chest, back and neck and then strangulated her, due to which, she died, and thereafter, in order to screen the offence, the accused hanged the deceased on the hook of the fan to show as if she committed suicide, thereby the accused committed the offences punishable under Sections 302 and 201, I.P.C.
3.1. The case of the prosecution, as discerned from the evidence of prosecution witnesses, is as follows.
3.2. The accused and the deceased are husband and wife. P.W.1 Jayamary is the sister of the deceased and P.W.2 Mahimaidoss and P.W.11 Henry Lawrence are brothers of the deceased. P.W.3 Salamon is the brother’s son of the deceased. P.W.6 Kanagambal is the mother of the deceased. P.W.9 Moies Lawrence is the adopted son of the accused and the deceased.
3.3. The marriage between the accused and the deceased took place 25 years ago and they were living together under one roof at Vadathavour. As they had no issues out of their wedlock, there were frequent quarrels between them and the accused used to ill-treat the deceased and even the accused had attempted on the life of the deceased on two earlier occasions by burning her and by smothering her. P.W.1 used to reconcile the spouses whenever they fell out. The accused was having illicit intimacy with one Karuppayee of the same village, which was objected to by the deceased and there were frequent quarrels between the accused and the deceased and the accused used to send her out after assaulting her. On all these occasions, P.W.1 had reconciled them.
3.4. At 5.00 p.m. on one day during the month of February 2004, P.W.1 received a telephone call from P.W.3 saying that the deceased died. She went to the house of the deceased along with her husband and children. The body of the deceased was kept in front of the house. The persons who had assembled there reported that the deceased hanged herself and died. However, on careful scrutiny of the body of the deceased, P.W.1 could not find any trace for having hanged herself. One of the hands of the deceased was defunct and she could not raise the hand and even for combing her hair, somebody should help her. P.W.1 stayed there on that night and on the next day, the body was buried as per Christian rituals. Four days after P.W.1 had suspicion over the death of her sister and went to Uthiramerur Police Station and lodged Ex.P1 complaint. On her identifying the place of burial on 1.3.2004, the officials exhumed the body and conducted post-mortem.
3.5. P.Ws.2 and 11 – brothers of the deceased, P.W.6 – mother of the deceased, P.W.9 adopted son of the accused and the deceased supported the evidence of P.W.1 in entirety.
3.6. P.W.4 Mariyammal, P.W.5 Anandhan, P.W.7 Manavalan, P.W.8 Babu had been examined by the prosecution to prove the motive behind the accused, but they had turned hostile.
3.7. P.W.15, Sub Inspector of Police, on receipt of complaint from P.W.1 on 24.2.2004 at 8.15 p.m., registered a case in Crime No.103 of 2004 under Section 174 Cr.P.C. The printed copy of the FIR is Ex.P3. Thereafter, he proceeded to the scene of occurrence and prepared Ex.P4 Rough Sketch. He examined P.Ws.1, 3, 4 and 7, neighbours and the accused and recorded their statements. Since the body was already buried, he sent a requisition to the Tahsildar to exhume the body for conducting post-mortem. As P.W.15 was assigned with security job, P.W.16 Ramamoorthy, Sub Inspector of police, proceeded with the investigation.
3.8. On receipt of the requisition from P.W.15 for exhumation of the body, P.W.17 Sivakumar, Tahsildar, sent Ex.P7 letter dated 25.2.2004 to the Medical Officer, Government Hospital, Chengalpattu, for conducting post-mortem.
3.9. On 1.3.2004 at 12.00 noon, P.W.16, P.W.14 Head Constable, P.W.13 Amaravathi – Village Administrative Officer and P.W.17 went to the burial place. P.W.18 Dr.Murugesan, attached to Government Hospital, Chengalpattu, also along with his medical team came to the burial ground. P.W.1 identified the place of burial and P.W.12 Vemban exhumed the body from the burial ground. P.W.16 prepared Ex.P5 Observation Mahazar and Ex.P6 Rough Sketch in the presence of P.W.10 Gnanasekaran. P.W.17 conducted inquest over the dead body and prepared Ex.P8 inquest report.
3.10. P.W.18 conducted post-mortem and found the following injuries:
1. A reddish brown coloured abrasion 1×1 cm on the middle third of left side of neck 3cm from the front of mid line of the neck.
2. A reddish brown coloured abrasion 1×1 cm on the front of left side of the neck. 1cm below the injury no.1.
3. A reddish brown coloured abrasion 1×1 cm on the front of left side of the 1cm below injury no.2 and 2cm above the left clavicle.
4. A reddish brown coloured abrasion 2x1cm on the front of left knee joint.
5. A reddish brown coloured abrasion 2x1cm on the upper part of left leg.
6. A reddish brown coloured abrasion 2x1cm on the upper part of right leg.
7. 6x5x1 cm on the front of lower part of left side of chest.
8. 6x4x1 cm on the back of upper part of left side of chest.
9. 6x5x1 cm on the back of lower part of left side chest.
10. 5x2x1 cm on the upper part of right side chest.
11. 6x3x1 cm on the back of left loin.
12. 10x6x1 cm on the front and outer aspect of right thigh.
The Doctor found all the injuries were anti-mortem. He took the inner organs for forensic science examination and sent the same for toxicological examination. On receipt of Ex.P10 Toxicological Report to the effect that there was no poisonous substances in any of the organs, he opined that the deceased would appear to have died of effects of throttling with multiple injuries and issued Ex.P9 Post-mortem Certificate.
3.11. P.W.19 Velusamy, Inspector of Police, Uthiramerur Police Station took up the case for further investigation on 30.4.2004 and examined P.Ws.11, 17 and 18 and recorded their statements. Based on the final opinion given by P.W.18 Doctor on 9.6.2004, he altered the case into one under Sections 302, 201 and 176 I.P.C. and sent Ex.P11 altered report to the Magistrate’s Court. He arrested the accused on 11.6.2004 at 4.00 p.m. at Uthiramerur bus stand and recorded his voluntary confession in the presence of witnesses viz., Durairaj and Gnanasekar. Ex.P12 is the admissible portion of the confession statement. Thereafter, the accused took P.W.19 and the witnesses to the place where he hidden the nylon rope and the aruvamani and P.W.19 recovered M.O.1 series 3 nylon rope pieces and M.O.2 aruvamani under under Ex.P13 Mahazar in the presence of the same witnesses. He examined the witnesses and recorded their statements.
3.12. P.W.19 completed the investigation and after following all the legal formalities, filed the final report in the court against the accused under Sections 302 and 201, IPC on 8.7.2004.
4. After the case was committed to Court of Sessions, the accused was questioned and he denied his complicity. Hence, the trial commenced. To substantiate the charge against the appellant/accused, the prosecution examined 19 witnesses, marked 13 exhibits and produced 2 material objects. On completion of evidence on the side of prosecution, the accused was questioned under Section 313 Cr.P.C. on the incriminating materials, for which the accused made a total denial. Neither any witness was examined nor any document was marked on his side.
5. The trial Court, on scrutiny of materials placed and on hearing the arguments of both sides, found the appellant/accused guilty of the charges under Sections 302 and 201 I.P.C. and accordingly, convicted and sentenced him as referred to earlier. Hence, the present appeal.
6.1. Ms.Lakshmidevi, learned counsel for the appellant/accused, would contend that there is no eye witness to the occurrence and the circumstantial evidence relied on by the prosecution is not at all sufficient to prove the guilt of the accused and the chain of circumstances is also not complete to connect the accused with the crime. There is a possibility of reaching the hypothesis of innocence of the accused and if that is so, the conviction must be set aside.
6.2. Inviting our attention to the evidence of P.W.1 and P.W.15, the learned counsel has pointed out the contradiction with regard to the form of Ex.P1 complaint. P.W.1 in her cross examination had categorically stated that her husband had written Ex.P1 complaint at the residence itself and lodged the same to P.W.15, whereas P.W.15 had deposed that the complaint was computerised one and therefore, the original complaint as spoken to by P.W.1 was not placed before the Court for appreciation. The failure to place the original complaint is fatal to the case of the prosecution. In this regard, she places reliance on the decision of the Apex Court in Selvi v. State of Tamil Nadu (AIR 1981 SC 1230).
6.3. The learned counsel submits that there were contradictions in the evidence of P.Ws.1, 17 and 18 with regard to the injuries found on the body of the deceased. Even though P.W.1 was present at the time of washing the dead body, she had not stated anything about the injuries found on the dead body. Likewise, the Tahsildar, who conducted inquest over the dead body, had categorically stated that since the dead body was in a decomposed stage, he could not find any injuries on the body. But, on the other hand, P.W.18, who conducted post-mortem, had noted twelve injuries on the body of the deceased. The medical evidence is not supported by the evidence of P.Ws.1 and 17.
6.4. Finally, the learned counsel would contend that even assuming it is not a suicide, but homicide, there is no connecting link to bring home the guilt of the accused to establish that the accused alone had committed the offence, as none of the witnesses stated that the deceased was last seen with the company of the accused and therefore, the accused is entitled for acquittal.
7.1. Per contra, the learned Additional Public Prosecutor submits that the prosecution has proved its case beyond all reasonable doubts by a complete chain of circumstances, without any missing link, viz., the accused and the deceased were husband and wife and were living under one roof; as the deceased did not conceive a child, the accused used to ill-treat the deceased; the accused had attempted on the life of the deceased on two earlier occasions by burning and smothering her; the accused was having illicit intimacy with one Karuppayyee and objecting the same, there were frequent quarrels between the accused and the deceased; even when P.W.1 was reconciling the spouses, the accused used to say that he would ill-treat the deceased and nobody can question him; on the fateful day, when the deceased was questioning the accused about his contact with Karuppayyee, he got provoked, assaulted the deceased and hanged her as if she committed suicide and therefore, the motive for the crime has been proved by the prosecution.
7.2. Even though there is discrepancy in the evidence of P.W.1 and P.W.15 with regard to the form of Ex.P1 complaint, it is not fatal to the case of the prosecution as the contents alleged to have been adduced by P.W.1 in the complaint lodged by her and the complaint available in the Court are one and the same.
7.3. The evidence of P.W.18 that there were twelve injuries on the body of the deceased cannot be rejected on the ground that there is no corroboration by P.W.1 and P.W.17 Tahsildar, as he is the Medical Officer, who can speak about the injuries found on the body.
7.4. Assuming that the deceased had committed suicide, even then the accused should have given a complaint and his failure in not making any complaint to the police shows his conduct.
7.5. On perusal of the medical evidence, it is positively stated that the deceased would appear to have died of effects of throttling with multiple injuries and therefore, the offence under Sections 302 and 201 I.P.C. is substantiated and prayed for dismissal of the appeal.
8. We have perused the entire materials on record and heard the submission of both sides. The question that arises for our consideration in this appeal is whether the prosecution proved the guilt of the accused beyond all reasonable doubts.
9. It is not in dispute that the deceased Victoria died on account of homicidal violence through the evidence of the doctor, P.W.18 and Exs.P9 and P10, post-mortem certificate and toxicological report, which revealed that the deceased died on account of throttling, the prosecution established the fact of homicidal violence. Hence, we have no hesitation to hold that the death of the deceased was due to homicidal violence.
10.1. Admittedly there is no direct evidence to the occurrence proper. The prosecution therefore relies upon only circumstantial evidence to connect the accused with the crime. According to the prosecution, since the deceased could not conceive a child, the accused developed illicit intimacy with another lady, which was questioned by the deceased and that is the motive for the accused to do away with the deceased. The motive alleged by the prosecution was spoken to by P.Ws.1, 2, 6 and 9, who are sister, brother, mother and adopted son of the deceased, that the accused used to ill-treat the deceased for her non-conception of a child; there were frequent quarrels between the accused and the deceased for his illegal relationship with one Karuppayee; even when elders were reconciling the couples whenever dispute arose, the accused never took their advice. To corroborate the evidence of P.Ws.1, 2, 6 and 9, the prosecution had examined P.Ws.4, 5, 7 and 8, who are residing nearby the residence of the accused. According to P.W.4, while she was standing by the side of her house, she saw the accused going inside his house and immediately after entering into the house he shouted saying that his wife hanged herself and she turned hostile. Likewise, the P.Ws.5, 7 and 8 turned hostile. Therefore, the evidence of P.Ws.1, 2, 6 and 9, who are all relatives of the deceased, was not at all corroborated by the neighbours viz., P.Ws.4, 5, 7 and 8, who were examined by the prosecution to prove the motive as well as last seen theory. In the absence of corroboration, we cannot rely on the evidence of P.Ws.1, 2, 6 and 9 and therefore, the motive alleged by the prosecution is not proved. The mere quarrel between the accused and the deceased would not be a ground to hold that the accused alone had murdered the deceased.
10.2.1. Apropos the contradiction in the evidence of P.W.1 and P.W.15 with regard to the form of complaint, a reference to the decision of the Apex Court in Selvi v. State of Tamil Nadu (AIR 1981 SC 1230) relied upon by the learned counsel for the appellant would be apposite. In the said decision, it is held as under:
“… One of the disturbing features of the case is the strange conduct of PW 15 the Sub-Inspector of Police. According to him he was told by PW 10 on the telephone that there was some rioting at Kottaiyur and that some persons were stabbed. He made an entry in the general diary and proceeded to Kottaiyur taking with him the FIR book, the hospital memo book etc. This was indeed very extraordinary conduct on the part of the Sub-Inspector of Police. If he was not satisfied with the information given by PW 10 that any cognisable offence had been committed he was quite right in making an entry in the general diary and proceeding to the village to verify the information without registering any FIR. But, we have yet not come across any case where an officer in-charge of a police station has carried with him the FIR book. The first information report book is supposed to be at the Police Station House all the time. If the Sub-Inspector is not satisfied on the information received by him that a cognisable offence has been committed and wants to verify the information his duty is to make an entry in the general diary, proceed to the village and take a complaint at the village from someone who is in a position to give a report about the commission of a cognisable offence. Thereafter, the ordinary procedure is to send the report to the police station to be registered at the police station by the officer in-charge of the police station. But, indeed, we have never come across a case where the Station House Officer has taken the first information report book with him to the scene of occurrence. According to the suggestion of defence the original first information report which was registered was something altogether different from what has now been put forward as the first information report and that the present report is one which has been substituted in the place of another which was destroyed. To substantiate their suggestion the defence requested the Sessions Judge to direct the Sub-Inspector to produce the first information report book in the court so that the counterfoils might be examined. The Sub-Inspector was unable to produce the relevant FIR book in court notwithstanding the directions of the court. The FIR book, if produced, would have contained the necessary counterfoils corresponding to the FIR produced in court. The Sub-Inspector when questioned stated that he searched for the counterfoil book but was unable to find it, an explanation which we find impossible to accept. We cannot imagine how any FIR book can disappear from a police station. Though he claimed that relevant entries had been made in the general diary at the station the Sub-Inspector did not also produce the general diary in court. The production of the general diary would have certainly dispelled suspicion. In the circumstances we think that there is great force in the submission of the learned counsel for the accused that the original FIR has been suppressed and, in its place some other document has been substituted. If that is so, the entire prosecution case becomes suspect.”
10.2.2. In the decision cited above, the Inspector of Police had taken the FIR to the place of occurrence, which is supposed to be at the Police Station House all the time. Further, when the Sub Inspector was asked by the Court to produce the FIR book in order to verify the counterfoil, he was unable to produce the same. Further, he could not produce the general diary also. Therefore, the Apex Court suspected the case of the prosecution.
10.2.3. In the case on hand, there is contradiction only with regard to the complaint given by P.W.1, which was in written form, since P.W.15 had deposed that the complaint was computerised one, but not with regard to the production of FIR book in the place of occurrence nor production of its counterfoil. Therefore, the decision cited supra is not applicable to the facts of the case.
10.3. The next circumstance relied on by the prosecution is the injuries found on the body of the deceased. According to P.W.1, she was very much present near the dead body throughout the night and also when the body was washed, but, she had not stated anything about the injuries found on the body either in the complaint or before the Court. Even the Tahsildar, who conducted inquest over the body, could not find out any external injuries on the body as the body was in a decomposed stage. However, the Doctor, who conducted post-mortem, had noted twelve injuries on the body, but in the cross examination, he had stated that those injuries would have been caused twenty days prior to the occurrence. Therefore, it is clear from the medical evidence that the injuries found on the body were not the cause for the death of the deceased.
10.4. In the absence of any evidence to show that the deceased was last seen in the company of the accused, it cannot be stated that the accused was responsible for the death of the deceased.
10.5. It is well settled that in order to base a conviction on circumstantial evidence, each and every piece of incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form such a chain of events as would permit no conclusion other than the one of guilt of the accused and the circumstances cannot be explained on any hypothesis other than the guilt of the accused. The court has to be cautious and avoid the risk of allowing mere suspicion, howsoever strong, to take the place of proof. A mere moral conviction or a suspicion howsoever grave it may be cannot take the place of proof.
10.6. We are satisfied that none of the circumstances found proved by the trial Court is an incriminating piece of circumstantial evidence so far as the accused-appellant is concerned and, therefore, the question of holding the accused-appellant guilty of murder or causing disappearance of evidence of offence etc. does not arise. We are unhesitatingly of the opinion that the finding is wholly unsustainable in law and hence deserves to be set aside.
10.7. The appeal is allowed. The conviction of the accused-appellant for offences under Section 302 and 201 I.P.C. and the sentences passed thereon are set aside. Since the appellant is on bail, the bail bond executed by him shall stand cancelled.
Index : yes (P.D.D.J) (K.N.B.J) Internet: yes 13.06.2008 ATR To 1. The Additional Sessions Judge (Fast Track Court-II), Kancheepuram. 2. The Inspector of Police Uthiramerur Police Station Kancheepuram (Crime No.103/2004). 3. The Public Prosecutor High Court, Madras. P.D.DINAKARAN,J, and K.N.BASHA,J. ATR Crl.A.No.594 of 2006 13.06.2008.