(Judgment of the Court was delivered by M.CHOCKALILNGAM, J.) Challenge is made to a judgment of the Principal Sessions Division, Thiruvallur, made in S.C.No.275 of 2008 whereby the sole accused/appellant stood charged under Sec.302 of IPC (3 counts), tried, found guilty as per the charges and awarded life imprisonment (3 counts) along with a fine of Rs.1000/- and default sentence, which were ordered to run concurrently.
2.Short facts necessary for the disposal of this appeal can be stated as follows:
(a) The appellant is the husband of the first deceased (D1) Suguna, and both the second deceased (D2) Mohan, a boy aged 7, and the third deceased (D3) Swetha, a girl aged 6, were their children. The appellant married Suguna in the year 1999 following the love affair. Suguna belonged to Adi-Thravidar community. This was the second marriage arranged since he already married one Uma who also belonged to the said community. He developed intimacy with Suguna, and due to the circumstances, he was to marry her as the second wife.
(b) On 2.2.2008 during night hours, when Suguna was speaking over a cellphone to somebody, he suspected the same and asked her to whom she was speaking. She refused to give answer. Immediately, he entertaining suspicion over her and following the quarrel, strangulated her and caused her death. Not satisfied, he caused the death of both the children by strangulation.
(c) The information reached P.W.1, the Village Administrative Officer (VAO) of Thiruthani, at about 5.45 A.M. On receipt of the information, he was about to go to the scene of occurrence, and at that time, the appellant/accused appeared before him and gave an extra-judicial confession narrating the entire incident. The same was recorded by P.W.1, which is marked as Ex.P1. He also prepared his report, Ex.P2. Then P.W.1 took the accused and produced him before the respondent police station along with Ex.P1, the statement of the accused, and Ex.P2, his report. On the strength of the same, a case came to be registered by P.W.8, the Inspector of Police of the respondent police station, in Crime No.255 of 2008 under Sec.302 of IPC. The printed FIR, Ex.P11, was despatched to the Court. He caused arrest of the accused and sent him for judicial remand.
(d) P.W.8 after registration of the case, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3, and also a rough sketch, Ex.P15. He also recovered from the place of occurrence M.O.1 series, cell phones, under a cover of mahazar. He examined the witnesses and recorded their statements. Then, he conducted inquest on the dead bodies of Suguna, Mohan and Swetha in the presence of witnesses and panchayatdars and prepared inquest reports, Exs.P12, P13 and P14 respectively. The dead bodies were sent to the Government Hospital along with requisitions for the purpose of autopsy.
(e) P.W.4, the Assistant Surgeon, attached to the Government Hospital, Thiruthani, on receipt of the said requisitions, conducted autopsy on the dead bodies of Suguna, Mohan and Swetha respectively and has issued postmortem certificates, Exs.P5, P6 and P7 respectively, with her opinion that all the three deceased would appear to have died of Asphyxia.
(f) On completion of investigation, the Investigating Officer filed the final report.
3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 8 witnesses and also relied on 15 exhibits and 1 material object. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found the appellant guilty on the charge of murder (3 counts) and awarded life imprisonment (3 counts) and ordered the same to run concurrently. Hence this appeal at the instance of the appellant.
4.Advancing arguments on behalf of the appellant, the learned Counsel Mr.V.Balu put forth the following submissions:
(i) The occurrence, according to the prosecution, has taken place at about 12.30 A.M. on 3.2.2008. The prosecution had no direct evidence to offer. It relied upon the circumstantial evidence. The main evidence relied on by the prosecution was the extra-judicial confession alleged to have been given by the accused to P.W.1, the VAO, at about 5.45 A.M. on 3.2.2008. P.W.1 would claim that after hearing the information as to the incident, he was about to go to the occurrence spot; that at that time, the accused intervened and gave the extra-judicial confession; that the same was recorded by him; that it was Ex.P1; that he also prepared his report, Ex.P2, and then he took the accused and produced him before P.W.8, the Inspector of Police, along with the documents, Exs.P1 and P2, on the strength of which a case came to be registered by the Inspector of Police, P.W.8, attached to the respondent police station.
(ii) The prosecution has miserably failed to prove its case since the evidence produced by the prosecution was shrouded with all suspicious circumstances. Even P.Ws.2 and 3 have categorically deposed that they have got the information as to the death of Suguna, Mohan and Swetha at about 4.00 A.M.; and that they rushed to the spot at about 5.15 A.M. where the police officials were also present. Thus it would be quite clear that the claim of the Investigator, P.W.8, that only after the information was passed on to him through P.W.1, the VAO, he came to know about the same and registered the case cannot but be false.
(iii) P.W.1 would claim that he recorded Ex.P1, the extra-judicial confession, and also prepared Ex.P2, the report. But, nowhere he has mentioned at what place the same was recorded.
(iv) Added circumstance to doubt the prosecution case is the evidence of P.W.1. He has categorically admitted that the observation mahazar and also the recovery mahazar were all signed by him at the police station at about 2.30 P.M., and thus, it would clearly be indicative of the fact that these documents have not come into existence as claimed by the Investigator at about 7.30 A.M. at the scene of occurrence.
(v) Apart from the above, a glaring doubt which would pass in anybody's mind is the delay in the FIR reaching the Court. P.W.8 would claim that the case was registered at about 7.00 A.M. on 3.2.2008 immediately after P.W.1 produced the accused and Exs.P1 and P2 documents. From the evidence it is quite clear that the concerned Judicial Magistrate's Court is situated within 1 kilometer from the police station. But, the FIR has reached the Court at 7.00 P.M. Thus there was a delay of 12 hours. At that time, even the entire investigation was over. In such circumstances, the inordinate and unexplained delay would clearly indicate that all the documents have come into existence only in the afternoon of 3.2.2008, and P.W.1 was taken to service for the preparation of the entire documents, and thus Ex.P1 document cannot but be a fabricated one to suit the prosecution case since the Investigator was left with no evidence at all.
5.Added further the learned Counsel that the medical opinion did not serve the prosecution case for the simple reason that it did not speak about the time of death of any one of the three deceased persons; that apart from that, the Investigator would claim that he recovered M.O.1 series, cell phones, from the place of occurrence; that one Dhananchezhian was the Finger Print Expert from the police department; that he has actually collected the cellphones and also verified the finger prints; that he has given a report to the effect that the finger prints of Suguna alone were actually found therein and except her, nobody's finger print was found; that in such circumstances, the prosecution in its fairness should have examined the said Dhananchezhian, the Finger Print Expert; that neither he has been examined nor his report has been produced; that the Investigator has also not investigated on that though there was a cellphone number which, according to the prosecution, seems to be the motive that she was talking with a third party, and when the accused was questioning to whom she was talking, she refused to give answer, and immediately, entertaining suspicion, he strangulated her; that if to be so, the Investigator should have investigated from that point of view; but, he has not done so; that all would go to show that the documents before the trial Court were nothing but fabricated documents, and hence no reliance could be placed on those documents; but, the trial Court has been carried away that it was a triple murder and has found him guilty, and hence he is entitled for acquittal in the hands of this Court.
6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
7.It is not in controversy that one Suguna, the wife of the appellant, and two children Mohan and Swetha, aged 7 and 6 respectively, were done to death in an incident that had taken place during the night hours of 2.2.2008. All the dead bodies were subjected to postmortem by P.W.4, the Doctor, attached to the Government Hospital, and she has given her opinion in Exs.P5, P6 and P7 that they died out of asphyxia. The cause of death as put forth by the prosecution was never disputed by the appellant before the trial Court or before this Court. Hence no impediment is felt by the Court in recording that they died out of homicidal violence.
8.In order to substantiate the charges levelled against the appellant/accused, the prosecution had no direct evidence to offer. It mainly relied upon the circumstantial evidence. The main piece of evidence which was relied on by the prosecution, was the extra-judicial confession alleged to have been given by the accused to P.W.1, the VAO, at about 5.45 A.M. on 3.2.2008. This Court is not unmindful of the settled principles of law that in a given case like this, a single piece of evidence namely the extra-judicial confession, can be taken as basis to sustain a conviction, provided it inspires the confidence of the Court. Before accepting the extra-judicial confession, it has been already ruled that the Court has to apply two tests, firstly when and under what circumstances the extra-judicial confession was given by the accused, and secondly, whether the evidence of the person to whom the extra-judicial confession is alleged to have been made by the accused, inspired the confidence of the Court. In the case on hand, if the above tests are applied, this Court is afraid whether it can sustain the conviction recorded by the trial Court.
9.P.W.1 has categorically claimed that he was the VAO of the said place; that at about 5.45 A.M., after hearing the information, he was just to proceed to the place of occurrence; that at that time, he was intercepted by the appellant/accused; that he came forward to give an extra- judicial confession; that the same was recorded as found in Ex.P1; that P.W.1 also prepared a report, Ex.P2; that he took the accused to the police station and produced him before P.W.8 along with Exs.P1 and P2 documents. The following circumstances are noticed which cast a reasonable doubt in the mind of the Court in respect of the above evidence given by P.W.1.
10.Firstly, the VAO has nowhere recorded at what place Ex.P1 the alleged extra-judicial confession, was recorded. He has categorically admitted that he went to the police station and signed Ex.P3, the observation mahazar, and also the recovery mahazar at about 2.30 P.M. at the police station. Further, the Investigator would claim that after the accused was produced before him, he caused arrest, and thereafter he went to the place of occurrence along with the VAO, P.W.1, and prepared the observation mahazar at about 7.30 A.M. and also recovered M.O.1 series. Now, at this juncture, it is pertinent to point out that had the VAO been present along with the Investigator at about 7.30 A.M. in the place of occurrence, there was no reason for the VAO going to the police station again and signing the documents at about 2.30 P.M. This would clearly be indicative of the fact that the VAO was not at all present in the morning hours as claimed by the Investigator.
11.Added further, P.W.2, the father of D1 Suguna, was living at a place 20 kilometers away from the place of occurrence. P.W.3 is the brother of D1. Both have categorically deposed that they had information as to the occurrence at about 4.00 A.M. by a cell phone from the police station, and they rushed to the spot at about 5.00 or 5.15 A.M., and when they went to the spot, the police officials were present. Thus, it would be quite clear that the police people had information as to the occurrence earlier, and they went to the place of occurrence where they found P.Ws.2 and 3 also. Hence the claim of the Investigator that he came to know about the occurrence only when the accused was produced before him by P.W.1 along with Exs.P1 and P2 documents, cannot but be false.
12.As far as the time of death is concerned, it is candidly admitted by the Medical Person that at the time when he gave the report, he has not mentioned the time of death.
13.The claim of the prosecution was that there was a quarrel at the night hours of 2.2.2008; that at that time, D1 Suguna was talking to a third party with the cellphone; that when he made a query about the same, she refused to answer, and thus he entertained suspicion; that immediately he strangulated her and caused her death; and that apart from that, he also strangulated both the children and caused the death. This seems to be the motive for the crime. Admittedly, one Dhananchezhian the Finger Print Expert, attached to the Police Department, was taken to the spot, and he has taken the finger prints available and in particular, the finger prints found in the cellphone. He has also given a report to the effect that the finger prints were only that of Suguna, D1, and no one else. But the prosecution has not examined him either, or produced the report before the trial Court. Added further, even the phone number recorded in the cellphone was not even investigated and equally so from whom she had a call that time. All would go to show that the prosecution has actually suppressed that part of the evidence in respect of the motive. It is true that in a given case, motive cannot have a vital role if the prosecution evidence in the other regard is acceptable by the Court.
14.One strong circumstance which would go to the root of the matter in the instant case is the delay in the FIR reaching the Court. Ordinarily mere delay in registration of a case or delay in the FIR reaching the Court can have a vital role to shake the truth of the prosecution case. But in the instant case, P.W.8, the Investigator, would claim that the case was registered at about 7.00 A.M. at the police station. The FIR has reached the Court at about 7.00 P.M., which is situated within 1 kilometer. Thus there was a delay of 12 hours. This inordinate delay which remained unexplained, coupled with all other earlier circumstances which are shrouded with doubts, would clearly indicate that the prosecution has not brought home the guilt of the appellant/accused. It is true that it was a case of triple murder. In such a situation, a massive duty is cast on the investigating agency to exercise more vigil to bring forth all the relevant materials before the Court in order to find out the truth. Even in a case where the suspicion is like Himalayas, it cannot be tantamount to proof. Therefore, in the absence of legal evidence, it would be highly unsafe to record a conviction against the appellant. Under the circumstances, the judgment of the trial Court has got to be made undone by upsetting the same.
15.In the result, this criminal appeal is allowed setting aside the judgment of the trial Court. The appellant is acquitted of the charges levelled against him. He is directed to be set at liberty forthwith unless his presence is required in connection with any other case. The fine amounts if any paid by him will be refunded to him.
nsv To:
1.The Principal Sessions Judge Thiruvallur
2.The Inspector of Police Thiruthanni Police Station Thiruvallur District (Cr.No.255/2008)
3.The Public Prosecutor High Court, Madras