THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HONOURABLE MR.JUSTICE N.AUTHINATHAN Criminal Appeal No.854 of 2016 Krishnasamy .. Appellant Vs The State by Inspector of Police, Annur Police Station, Coimbatore District, Crime No.109 of 2013 .. Respondent Prayer:- Criminal Appeal filed under Section 374(2) Cr.P.C., by the appellant/sole accused against the judgment dated 10.06.2016 in S.C.No.40 of 2014 on the file of the learned Sessions Judge, Mahila Court, Coimbatore.
For Appellant : Mr.N.Manokaran 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.40/2014 on the file of the learned Sessions Judge, Mahila Court, Coimbatore. He stood charged for offence under Section 302 I.P.C. By judgment dated 10.06.2016, the trial Court convicted him for offence under Section 302 I.P.C., and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for three months. 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.Neelamani @ Neelavathy. P.W.1 is the husband of the deceased. P.W.2 is the brother of the deceased. The deceased was living along with P.W.1 as husband and wife in Karuvalur, Upilipalayam. The deceased was working in a power loom godown in Muruga mpalayam. The accused was working in the said hand loom as a coolie. In due course of time, the accused developed illicit intimacy with the deceased. They used to meet in a nearby forest belonging to one Texmo-karar Farm, Kumaran Kadu Village to have sex. After some time, the accused had developed doubt that the deceased had illicit intimacy with one Mr.Rajendran also. The accused questioned the deceased in this regard. This resulted in misunderstanding between them. However, they continued their illicit relationship.
3. On 09.03.2013, as usual, the accused and the deceased went to the usual place for their meeting, in the forest, near Kumaran Kadu. It is alleged that the accused persuaded the deceased not to have any relationship with Mr.Rajendran. This resulted in a quarrel. In the said quarrel, it is alleged that the accused strangulated the deceased by using the saree of the deceased as a ligature and killed her. Abandoning the dead body, it is alleged that the accused fled away from the scene of occurrence. The occurrence was not thus seen by anyone.
4. P.W.1, the husband of the deceased having noticed that the deceased did not return home, after her work, informed P.W.2 and both of them went in search of the deceased. On the next day morning, around 6.30 am, they came to know that the dead body of the deceased was lying at the place of occurrence. Thereafter, P.W.1, went to Annur Police Station at 10.00 am on 09.03.2013 and made a complaint. On the said complaint, a case was registered in Crime No.109/2013 for offence under Section 174 Cr.P.C., (suspicious death) by P.W.8, the then Sub Inspector of Police. Ex.P.1 is the Complaint and Ex.P.4 is the F.I.R. He forwarded both the documents to Court which were received by the learned Judicial Magistrate concerned at 10.30 am on 13.03.2013.
5. The case was investigated by P.W.11, the then Inspector of Police. He went to the place of occurrence, prepared an observation mahazar and rough sketch in the presence of witnesses. He also conducted inquest on the dead body of the deceased and forwarded the same for post mortem. He recovered a wire basket, tiffen box, cell phone charger and a cell phone without sim card, havai chappels from the place of occurrence.
6.P.W.10 – Dr.Jayasingh, conducted autopsy on the body of the deceased and found the following injuries:-
“1.A faint ligature mark 28x2cm noted on the front and both sides of neck 2.Reddish contusion 3x2cm noted over left check and 3x1cm noted over left to angle of mouth.
On bloodless dissection of neck:- The base of the ligature mark is soft and intermittently contused. Reddish contusion 3x2cm noted on the posterior aspect of right side larynx. A vertical fracture noted on the middle of thyroid cartilage with surrounding tissue found contused reddish in colour. Fracture and dislocation noted on the lower end of greater cornu of hyoid bone with surrounding tissue found contused reddish in colour.
On dissection of scalp, skull and dura: Sub scalpal contusion reddish in colour 6x4 cm noted over right temporal region. Brain found liquefied, blood tinches noted over surface of the menings.”
Ex.P.9 is the post mortem certificate. P.W.10 has opined that the death of the deceased was due to ligature strangulation. Based on the same, P.W.11 altered the case into one under Section 302 I.P.C.
7. When the investigation was in progress, it is alleged that on 13.03.2013, the accused surrendered before the Village Administrative Officer (P.W.9) and wanted to make a voluntary confession. He told P.W.9 that he killed the deceased. Then P.W.9 took the accused along with the statement of the accused and produced him before P.W.11. P.W.11 then arrested the accused at 5.30 pm on 13.03.2013. While in custody, he made a voluntary confession in which, he disclosed the place where he had thrown a passi malai (M.O.6) belonging to the deceased. In pursuance of the same, he took the Police and witnesses to the place of hide out and produced M.O.6. The same was recovered by P.W.11 under a mahazar. On completing investigation, he laid charge sheet against the accused.
8. Based on the above materials, the trial Court framed a lone charge against the accused. In order to prove the case, on the side of the prosecution, as many as 11 witnesses were examined and 18 documents were exhibited besides 6 material objects.
9. Out of the said witnesses, P.Ws.1 and 2 are husband and brother respectively of the deceased. P.Ws.1 & 2 have stated that the deceased who went to her work place on 09.03.2013 did not return home and the dead body of the deceased was found in the forest on the next day morning. P.W.3 has stated that on 08.03.2013, around 9.30 pm, he found the accused and the deceased working in the godown. On 09.03.2013, according to him, at 3.00 am, the deceased left for her house. After some time, according to him, the accused enquired as to where the deceased had gone. Then, the accused also left the godown around 6.20 am. On the same day, 300 ft away from the godown, he found the accused and the deceased exchanging harsh words against each other. P.W.4, yet another employee in the same godown has also stated so. P.W.5 has stated that around 7.30 am on 09.03.2013, somewhere near the place of occurrence, he found the deceased and the accused together. P.W.6 has spoken about the preparation of observation mahazar and a rough sketch. P.W.7 has stated that he found the dead body of the deceased in the forest and informed the same to P.W.1. P.W.8 has spoken about the registration of the case. P.W.9, the then Village Administrative Officer has stated that on 13.03.2013 the accused appeared before him and wanted to confess his guilt. He recorded the same and produced the accused along with the said report to the Investigating Officer. He has further stated about the consequential recovery made out of the voluntary confession made by the accused. P.W.10 has spoken about the post mortem conducted by him and his final opinion regarding the cause of death. P.W.11 has spoken about the investigation done and the final report filed.
10. 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.
11. Having considered all the above materials, the trial Court convicted the appellant/accused for offence under Section 302 I.P.C., and sentenced him to undergo imprisonment for life. Challenging the same, the appellant/accused is before this Court with this Criminal Appeal.
12. We have heard the learned counsel appearing for the appellant/accused and the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
13. There is no controversy over the fact that the deceased had gone to her work place on 08.03.2011, where she was working along with the accused during night shift. The dead body of the deceased was found thereafter on 12.03.2013. According to the Doctor, the death was due to ligature strangulation. From these evidences, the prosecution has clearly established beyond any doubt that the deceased would have been done to death some time between 09.03.2013 and 12.03.2013 and the death was a homicide.
14. Now, the question is “Who was the perpetrator of the crime?”. In order to prove that it was this accused who caused the death of the deceased, the prosecution relies only on the evidences of P.Ws.3 to 6. P.W.3 has stated that the accused and the deceased were working during night shift and on the next day morning around 3.00 am, the deceased left for her house. The accused left thereafter. He has further stated that he found the accused and the deceased exchanging harsh words against each other 300 feet away from the godown. The next evidence is that, the accused and the deceased were found together around 7.30 am on 09.03.2013. Except this evidence, there is no other evidence against the accused. The accused disputed these evidences of P.Ws.3 to 6. Assuming that the evidences of P.Ws.3 to 6 could be believed it would only go to prove that the deceased and accused were found somewhere near the godown. This is not at all incriminating. After the night shift was over, the deceased had left first followed by the accused. Therefore, it cannot be said that there was something incriminating in the accused and the deceased talking together somewhere near the godown. Apart from that, there is no other evidence against the accused.
15. From this one single circumstance, in our considered view, it cannot be conclusively held that it was this accused who caused the death of the deceased. There is also no evidence that passi malai (M.O.6) allegedly recovered from the accused on the disclosure statement made by the accused was worn by the deceased lastly.
16. It is needless to point out that, in a case of this nature, the prosecution has to prove the circumstances projected by it, beyond reasonable doubts and all such proved circumstances, should form a complete chain, without any break, so as to unerringly point to the guilt of the accused and there should not be any other hypothesis which is inconsistent with the guilt of the accused. In other words, we hold that the only circumstance projected by the prosecution would not be sufficient to unerringly point out the guilt of the accused. The prosecution has failed to prove the case beyond reasonable doubts. Therefore, the appellant is entitled for acquittal.
17. 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 (Mahila Court), Coimbatore, in S.C.No.40 of 2014, dated 10.06.2016, 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.,) 10.02.2017 To
1. The Sessions Mahila Court, Coimbatore.
2. The Superintendent, Central Prison, Coimbatore.
3. The Public Prosecutor, High Court, Madras.
S.NAGAMUTHU.J.,
AND N.AUTHINATHAN.J.,
jbm
Crl.A.No.854 of 2016
10.02.2017 http://www.judis.nic.in