THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR.JUSTICE N.AUTHINATHAN Criminal Appeal No.486 of 2016 Jayakumar .. Appellant Vs State rep. By Inspector of Police, Gummudipoondi Police Station, Thiruvallur District, Crime No.795/2009 .. Respondent Prayer:- Criminal Appeal filed under Section 374(2) Cr.P.C., by the appellant/sole accused against the judgment dated 05.04.2016 passed in S.C.No.84/2012 on the file of the learned Sessions Judge, Magalir Neethimandram, Thiruvallur.
For Appellant : Mr.S.N.Arun Kumar For Respondent : Mr.P.Govindarajan, Additional Public Prosecutor
JUDGEMENT
(Judgment of the Court was delivered by S.Nagamuthu.J) The appellant is the sole accused in S.C.No.84/2012 on the file of the learned Sessions Judge, Magalir Neethimandram (Fast Track Mahila Court), Tiruvallur. He stood charged for offences under Sections 379 & 302 I.P.C. The trial Court by judgment dated 05.04.2016, convicted and sentenced the accused to undergo imprisonment for life and to pay a fine of Rs.3,000/- in default to undergo simple imprisonment for six months for the offence under Section 302 I.P.C., and to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/- in default to undergo simple imprisonment for two months for the offence under Section 379 I.P.C. Challenging the said conviction and sentence, the appellant is before this Court with this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:-
The deceased in this case was one Mrs.Murugammal. P.W.1 is her son. The deceased and P.W.1 were residing at Periyanatham Village in Tiruvallur District. The deceased used to go for grassing the cattle in a nearby field. Accordingly, on 04.12.2009, in the morning, she led the cattle to the nearby field at Thambureddypalayam Village. It was a mango grove. She was wearing gold nose stud with two koppus weighing about 1 ½ soverigns. Around 4.30 pm, when she was alone, it was alleged that the accused strangulated the deceased and killed her by using a rope as a ligature. Then he removed the above stated gold jewels and fled away from the scene of occurrence. The occurrence was not seen by anyone.
3. P.W.1, the son of the deceased was informed about the lying of the dead body at the place of occurrence. Thereafter, P.W.1 went to Gumudipoondi Police Station on 04.12.2009 at 6.00 pm and made a complaint (Ex.P.1). Based on the same, a case in Crime No.795/2009 was registered for offences under Sections 302 & 379 I.P.C.
4.P.W.17, the then Inspector of Police took up the case for investigation. He went to the place of occurrence, prepared an observation mahazar and rough sketch and then forwarded the dead body for post mortem.
5. One Dr.Thilagavathy (who was examined as C.W.1 by this Court) conducted autopsy on the body of the deceased and she has opined that the death was due to ligature strangulation. P.W.17 during the course of investigation, made an arrangement for a Police sniffer dog. Accordingly, the sniffer dog has brought to the place of occurrence. But, it did not bring out any clue. P.W.17 however, could not get any breakthrough. The investigation was taken over by his successor (P.W.18) on 16.12.2009.
6. On 04.12.2009, P.W.18 arrested the accused in the presence of witnesses. While in custody, he made a voluntary confession, in which, he disclosed the place where he had pledged the jewels of the deceased in the name of one Mr.Anandan. In pursuance of the same, he took the Police and witnesses to the shop of P.Ws.13 & 14 from where, the stolen properties were recovered.
7. On returning to the Police Station, P.W.18 forwarded the accused to Court for judicial remand and handed over the material objects to Court. On completing investigation, he laid charge sheet against the accused.
8. Based on the above materials, the trial Court framed charges as against the appellant as stated in the first paragraph of this judgment. The appellant/accused denied the same. In order to prove the case of the prosecution, on the side of the prosecution, as many as 18 witnesses were examined and 18 documents were exhibited, besides 6 Material Objects.
9. Out of the said witnesses, P.W.1, the son of the deceased has stated that the deceased left for the mango grove taking the cattle for grassing on 04.12.2009, in the morning, but, she did not return. He has further stated about the missing of the gold jewels from the body of the deceased. He has stated about the complaint made by him to the Police. P.W.2 a Villager has also stated about the same facts as spoken by P.W.1. P.W.3 has spoken about the preparation of observation mahazar and rough sketch. P.Ws.4 & 5 have stated that they found the dead body at the place of occurrence when they went there on hearing about the occurrence. P.W.6 has spoken about the photographs taken by him at the place of occurrence. P.W.7, a Forensic Expert has stated that at request of Investigating Officer, on 05.12.2009, he visited the place of occurrence and examined the dead body. He has further stated that the ear studs were found missing from the deceased and that there was only a contusion on the neck of the deceased. P.W.8, who was expected to speak about the arrest, confession and recovery of the material objects has turned hostile and he has not supported the case of the prosecution in any manner. P.W.9 has stated about the preparation of observation mahazar and rough sketch. P.W.10, duaghter-in-law of the deceased has stated about the missing of gold jewels (M.Os.3 to 6) from the body of the deceased. P.W.11, the Head of Sniffer Dog squad has stated that his attempt turned futile. P.W.12 has turned hostile and he has not supported the case of the prosecution in any manner.
10.P.W.13 – a pawn broker is an important witness for the prosecution. According to him, on 06.12.2009, the accused pledged ear koppus numbering 2 for Rs.1,005/-. He has further stated that he issued bill bearing No.502 for the same. He has further stated the original bill was handed over to the Police on 09.01.2010 and the jewels were also handed over to the Police. P.W.14 has stated that he was running a pawn broker shop. According to him, on 08.12.2009, the accused pledged two nose screws for a sum of Rs.1,000/-. (P.Ws.13 & 14 have not identified the jewels in Court).
P.W.15 has spoken about the registration of the case. P.W.16 has spoken about the chemical examination conducted on the internal organs of the deceased. The report revealed that there was no poison. P.Ws.17 & 18 have spoken about the investigation done and the final report filed.
11. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not chose to examine any witness nor did he mark any documents on his side.
12. Having considered all the above materials, the trial Court convicted the appellant/accused as stated in the first paragraph of this judgment. Challenging the same, the appellant/accused is before this Court with this Criminal Appeal.
13. When this appeal came up for hearing before this Court, the learned counsel for the appellant contended that the Doctor who conducted autopsy on the body of the deceased had not been examined and the contents of the post mortem certificate had not been proved by the prosecution. Thus, according to the learned counsel, the cause of death of the deceased was not proved.
14. The learned Additional Public Prosecutor appearing for the State submitted that since, the Doctor who conducted autopsy was not then available, she was not examined. Having considered the rival submissions, this Court by invoking the power under Section 391 Cr.P.C., decided to examine the said Doctor Mrs.Thillaikarasi who conducted autopsy on the dead body of the deceased, as a Court witness. Hence, this Court passed an order to issue summons to the witness to be present before this Court. Accordingly, she made appearance on 18.01.2017. She was examined as Court Witness No.1 (C.W.1). In her evidence, she has stated that she conducted autopsy on the body of the deceased on 05.12.2009 at 10.50 am. She found a ligature mark on the right side of the neck 10 cm length from middle line of neck, breadth about 1.5 cm, black in colour and three small abrasion on the right side of the neck. She has also spoken about the corresponding internal injuries found on the neck. The Doctor further opined that the death was due to asphyxia and asphyxia was due to either manual strangulation or ligature strangulation or by both. Ex.P.18 is the post mortem certificate.
15. The accused was thereafter, questioned in respect of the incriminating materials found in the evidence of C.W.1, as required under Section 313 Cr.P.C. Accordingly, he was examined on 25.01.2017 before this Court and during such question, he said that he had nothing to say about the opinion of the Doctor.
16. Thereafter, we have heard the further arguments of the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
17. This is a case based on circumstantial evidence. There is no controversy over the fact that the deceased left for the mango grove taking the cattle for grassing on 04.12.2009 in the morning. In normal course, she would have return in the evening with the cattle. But, she did not return. Her dead body was found on the same day around 5.30 pm in the mango grove. According to the evidence of C.W.1, who conducted autopsy on the body of the deceased has opined that the death was not natural but, it was due to asphyxia due to either manual strangulation or ligature strangulation. Thus, the prosecution has established that the death of the deceased would have occurred some time before 5.30 pm on 04.12.2009 and the said death was a homicide.
18. P.W.1, the son of the deceased and P.W.10, the daughter-in- law of the deceased have stated that when the deceased left for the mango grove, she was wearing M.Os.3 to 6 which were gold jewels. Admittedly, these jewels were not found on the dead body of the deceased. Thus, the prosecution has proved that M.Os.3 to 6 were stolen away from the deceased in one and the same occurrence when she was killed. In other words, the person who killed the deceased had stolen away M.Os.3 to 6 from the possession of the deceased.
19. Now the question is “Who was the perpetrator of the crime?”
In order to prove the case, the prosecution has to rely only on the evidences of P.Ws.13, 14 & 18. P.W.13 has stated that on 06.12.2009, the accused pledged ear koppus numbering two for a sum of Rs.1,005/-. But, in Court, he has not identified the same. He has further stated that he handed over the original receipt bearing No.502 to the Inspector of Police but, the said receipt also has not seen the light of the day. Similarly, P.W.14 has stated that the accused pledged a pair of nose screws on 08.12.2009 for a sum of Rs.1,000/-. But, no record whatsoever was produced by the prosecution to prove that the gold jewels belonging to the deceased was pledged by the accused either through P.W.13 or P.W.14.
P.W.14 also did not identify the nose screws in Court. Thus, the evidences of P.Ws.13 & 14 would not in any manner go to advance the case of the prosecution. Now, turning to the evidence of P.W.18, the Investigating Officer, has stated that on the arrest of the accused, he made a voluntary confession and out of the said disclosure statement only the ear studs and koppus (M.Os.3 to 6) were recovered. M.Os. 3 & 4 were recovered from P.W.14 and M.Os.5 & 6 were recovered from P.W.13. But, as we have already pointed out, these two witnesses (P.Ws.13 & 14) have not been identified M.Os.3 to 6 in Court. During cross examination, P.W.18 has stated that the jewels belonging to the deceased had been pledged not in the name of the accused but in the name of one Mr.Anandan. It is the evidence of P.W.18 that the accused himself gave his name wrongly as Mr.Anandan instead of giving his original name in the receipts. In order to prove this fact, absolutely, there is no evidence. According to P.W.18, the receipts were recovered by him during the course of investigation carrying the name of Mr.Anandan, evidencing the pledging of jewels to P.Ws.13 & 14. But, the said receipts were not produced before the Court at all. During cross examination, P.W.18 had admitted that for no reason, he did not submit these receipts to the Court. If the receipts are available and had there been any investigation to the effect that the handwriting in the said receipts are that of the accused, then, we can attach some importance to the evidence of P.Ws.13 & 14. It is not known as to why the said receipts were not sent for comparison by an handwriting expert with the admitted handwriting of the accused. It is also not explained to the Court as to why those receipts standing in the name of Mr.Anandan, have not been produced before the Court.
20. Admittedly, the jewels were not pledged in the name of the accused either with P.W.13 or with P.W.14. P.Ws.13 & 14 have stated that the jewels were pledged by the accused. They have not stated that they were pledged in the name of Mr.Anandan. Thus, absolutely, there is no evidence that this accused pledged M.Os.3 to 6 with P.Ws.13 & 14. Further, absolutely there is no evidence that the jewels were pledged by this accused either in his name or in the name of Mr.Anandan. For that, no record whatsoever was produced. The suppression of the original receipts would speak volumes about the prosecution. Thus, there is no acceptable reasons to prove that the accused was found in possession of M.Os.3 to 6 soon after the commission of theft and murder. We find no other evidence against the accused so as to convict him. In view of the above, we hold that the prosecution has failed to prove the case beyond reasonable doubt and the appellant is entitled for acquittal.
21. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed on the accused/appellant by the learned Sessions Judge, Magalir Neethimandram (Fast Track Mahila Court), Tiruvallur, in S.C.No.84 of 2012, dated 05.04.2016, is set aside and the accused/appellant is acquitted. The fine amount, if any paid, shall be refunded to him. The bail bond, if any, executed by the accused/appellant, shall stand discharged.
jbm Index: Yes/No (S.N.J.,) (N.A.N.J.,) 09.02.2017 To
1. The Magalir Neethimandram, (Fast Track Mahila Court), Tiruvallur.
2. The Public Prosecutor, High Court, Madras.
S.NAGAMUTHU.J.,
AND N.AUTHINATHAN.J.,
jbm
Crl.A.No.486 of 2016
09.02.2017 http://www.judis.nic.in