(Judgment of the Court delivered by N.SESHASAYEE, J) Of the two accused convicted and sentenced in S.C. 380/2014 on the file of II Additional Sessions Judge, Salem, that arose from Crime No.285 of 2013 of Pallpatti P.S., A-1 has come forward with this appeal. The Charge against him was murdering one Shanthi along with A-2 and decamping thereafter with her valuables. The details of the Charge and the sentence imposed on him are hereunder:
2. A summary of the prosecution's line of narrative may commence with A-1, who had earlier acquaintance with one Shanthi, had visited her at latter's apartment at about one o'clock in the afternoon on 26-03-2013. Prosecution projects Shanthi as pander of sort through who A-1 used to arrange women for his carnal gratification on consideration. The visit that he made on 26-02-2013 was for the same purpose. This was pursuant to a cell-phonic conversation between A-1 and Shanthi and the latter inviting him. A-1, however, took his friend A-2 with him but Shanthi appeared unprepared for two guests that afternoon, and this sparked an altercation between them and it culminated in A-2 holding Shanthi and A1/appellant stabbing her with a kitchen knife that he picked up from Shanthi's apartment. After the occurrence A1 and A2 had decamped with Shanthi's jewelleries and a cell phone. Shanthi's son (P.W.1) along with his step father (P.W.2), the second husband of Shanthi went to the police station and preferred Ext.P-1 complaint based on which Ext.P-16 FIR was registered.
3. P.W.20 was the Investigation Officer (hereinafter would be referred to as IO) in charge of the police station on that day, began his investigation. He visited the scene of occurrence (SOC for short), prepared observation magazar and rough sketch of the SOC, conducted inquest on the body of the dead, and organised to shift the body for postmortem. P.W.19 conducted autopsy and his report are Exts.P-18 & P-19. At SOC, P.W.20 seized blood stained spectacles and a blood stained kitchen knife under Ext.P-4 seizure magazar. He also collected chipped portion of floor titles with and without blood stain under a separate magazar from SOC. P.W.9, the VAO and his assistant Madhappan were the witnesses to Ext.P-3 observation magazar, and Exts.P-4 & P-5 seizure magazars. P.W.23 thereafter continued the investigation and based on a tip-off he zeroed in on the two accused involved in the crime and arrested both of them on 01-04-2013 in the presence of P.W.10 Sheik Iqbal and one Ganapathi. Thereafter, based on a information-statement that A-1 tendered IO recovered Rs.460/- and a cell phone that are marked during trial as M.O.7 and M.O.8. The said information also led to the discovery from the house of one Venkatraman in Tiruppur from where few items of gold-covering jewelleries (M.O.10 to 15), a samsung cell phone (M.O.16) as well as blood stained dress material (M.O.17 to 19). They were seized under Ext.P-9 magazar. The information provided by A-1 also led P.W.23 to seize M.O.2 gold chain from P.W.8, a staff of M/s.Muthoot Finance's branch at Sooramangalam under Ext.P-11 magazar.
He thereafter altered the offence from one under Sec.302 IPC to Sec. 302 r/w Sec.380 IPC. He produced both the material objects that he had collected and also both the accused persons before the concerned Magistrate's Court. Later select items of material objects that contained blood stains were sent to forensic scientific department. P.W.21 is the forensic scientific assistant who has analysed the same and has made available Ext.P-25 and P-26 reports. In the course of investigation P.W.23 also organised to obtain call details of deceased Shanthi, A-1 and Shanthi's husband P.W.2. These call details are obtained through P.W.22 and were marked as Exts. P-29 to P-31.
4. After due completion of investigation, final report of the investigating agency was laid under Sec.302 r/w Sec.34 and Sec.404 IPC., and the case was committed to Sessions. The II Additional Sessions Judge to whom the case was made over framed necessary charges.
5. During trial the prosecution attempted to prove the Charges through 23 witnesses, 35 documents that are marked as Ex.P-1 to P-35 and M.O.1 to M.O.21. The defence has marked Ex.D-1, which is a seizure magazar that P.W.23 had occasion to prepare in the course of investigation. Weighing the evidence before him the learned Sessions Judge had held that the charges framed against both the accused have been proved and accordingly convicted and sentenced both the accused.
6. It may be stated now that A-2 had filed a separate appeal in C.A.No.379/2016, and that appeal was allowed Vide judgment dated 18- 11-2016 and A-2 was acquitted.
7. An analysis of charges framed if sequentialised reflect the following:
(a) At about one O'clock in the afternoon A-1 had a cellphonic conversation with Shanthi and the latter had invited the former to her apartment; (b) A-1 and A-2 goes there; (c) an altercation brews and A-1 murders Shanthi with A-2 holding her; and (d) both A-1 and A-2 decamped with jewelleries and other belongings of Shanthi.
8. There are no eyewitnesses to the occurrence and the prosecution has spent its efforts in spinning a web of culpability around the accused on circumstantial evidence. The tenability and the believability of what it has provided is what occupies the consideration of this Court in this appeal.
9.1 Before delving on the crime per se, it may be useful to provide a brief sketch on Shanthi to the extent it could be gathered from the evidence and required for the purpose of this case. Shanthi appeared to have married twice and P.W.2 Balasubramanian was her second husband, P.W.1 Mani, is her only son and he is the step son of P.W.2. Shanthi was living in Flat No.101 in a certain Lakshmi Narayana Apartments as a tenant under one Sendrayan. P.W.3 is Sendrayan's son. P.W.4, Sathyapriya is Shanthi's neighbour in the apartment.
9.2 This apart, Shanthi is introduced by the prosecution as a woman given to lose morals and as engaged in not so dignified avocation. She either serve herself or other women to A-1. This is the backdrop.
10. The evidence opens with P.W.4. She is Shanthi's neighbour. She complained to her landlord Sendrayan on the morning of 27-03-2013 about the excessive and continuous noise of the TV from Shanthi's house right through the night of 26/27-03-2013. He in turn informed his son P.W.3. He arrived at Shanthi's apartment, pressed the buzzer, but did no receive any response. He without any loss of time called Shanthi's husband P.W.2 over cellphone and both arrived at the SOC and on opening the door they found Shanthi murdered in a pool of blood with cut injuries on her neck. P.W.2 in turn informed P.W.1, Shanthi's son and both of them went to the police station to lodge a complaint. Strictly speaking a conjoined reading of evidence of P.W.1 to P.W.4 only helps in understanding the circumstances in which criminal law was set in motion.
11. Prosecution in effect has provided proof of five independent sets of facts as constituting strong and unbreakable chain of facts to prove the guilt of the accused persons. They along with the allied facts that impact their proof or evidentiary value are enumerated briefly:
● First, is the evidence of P.W.5. He is a labourer in a workshop opposite to Lakshmi Narayana apartments, where Shanthi lived in Flat No.101 in the ground floor. He has deposed that on the date of occurrence at about 4 p.m. he had seen both the accused going inside the apartment in one of which Shanthi lived. His evidence discloses: (a) that he had no previous acquaintance or familiarity to any of the accused persons; and (b) that he did not see the accused going to Shanthi's apartment in particular. P.W.,23 the IO concedes that no test ID parade was conducted.
● The second in the chain is Ext.P-18 postmortem report. According to P.W.19, the doctor who conducted autopsy state that postmortem took place at 4.30 p.m. on 27-03-2013, some 24 hours after P.W.5 had stated to have spotted the accused entering the apartments, and he has given his opinion that the death might have occurred between 22 to 26 hours before autopsy.
● Thirdly comes M.O.2-gold chain said to be belonging to Shanthi. The prosecution line of the case linking this gold chain to Shanthi's murder and to A-1 as a circumstance that clinch the guilt of the accused is that this gold chain belonged Shanthi, that after murdering Shanthi A-1 had took it away with him, then approached P.W.7, Ezhilarasu, a friend of his to help him raise finances on the jewellery and accordingly P.W.7 pledged the same with Muthoot Finance Corporation Ltd., Suramangalam Branch. Admittedly M.O.2 was recovered not from A-1 but from a financier and even there only P.W.7 had pledged and not A-1. And, no witness has identified that the jewellery belonged to Shanthi including P.W.2 Shanthi's husband.
● Next its reliance is on forensic scientific reports on blood grouping.
M.O.18 and 19 are stated to be the blood stained dress materials that A-1 wore at the time of occurrence. Ext.P-26 serological report identifies that the blood sample drawn from these dress material as 'B' group human blood. But it was not matched with the blood sample of the victim of the crime. Indeed, P.W.19 had not chosen to preserve the blood sample when he conducted postmortem. P.W.2 had collected Ext.P-20 and P-21, both of which were blood stained dress material of the victim, but they were not sent to forensic lab for blood analysis to enable comparison of the same with that of the blood stain in the alleged dress material of A-1.
● Lastly comes the call details of cell phone of A1, Shanthi and P.W.2, Balasubramanian. These are provided in Ext.P-29, Ext.P-30, Ext.P-31 & Ex.P-28 respectively. They were collected on the request of IO to P.W.22 the Inspector (I.S) who in turn collected them from the respective service providers. First, none of these call details can be admitted in evidence as they were not accompanied by a certificate of the service provider as required under Sec. 65(B) of the Evidence Act and held mandatory as per the ratio declared in Anvar Vs P.K.Basheer & Others [(2014)10 SCC 743]. This apart, even if these documents are perused they only give the incoming and outgoing call details and not any transcription of conversation much less incriminating conversation between the accused and their victim.
12. Where is the proof that law demands? Any proof of a crime founded on circumstantial evidence requires a set of tightly held sequence of facts, each of which should have been proved in the manner that law requires and should relate themselves to each other in a manner that the guilt of the accused should flow out as the only resulting inference. Here prosecution appears to have simplified its efforts with bits and pieces attempts but sans the professionalism required of it. Let the believability and the reliability of the evidence that it has made available be tested:
● It first wants the Court to believe that Shanthi was a woman of easy virtues, but did not consider it necessary to prove it through anyone. But for this, A-1 need not have visited her that fateful evening.
● Even if this is ignored, it is its case that A-1 had visited his victim on her invitation, but beyond providing a bunch of call details in Exts.P-29 to P-31 it has provided nothing. As earlier indicated these documents were not proved in the manner indicated in Sec.65-B of the Evidence Act. This apart, a list of call details at the best would be relevant to show as to who all have made calls but throws little information on the nature and quality of information shared between the maker and the receiver of a call.
● Next it introduced one Senthilkumar (P.W.5) as someone working in a workshop opposite to the Lakshmi Narayana apartment complex where the murder took place. He says that he had seen A-1 and A-2 as entering the apartment but also admits that they were not acquainted to him earlier. Nor has he spotted the accused persons entering the particular flat where Shanthi lived. The IO too did not believe in conducting a test ID parade to reassure himself that P.W.5 had actually seen what he speaks to. The worse aspect is still to come. The IO has recorded his statement under Sec.161 Cr.P.C. on 27-03-2013, but has dispatched it with a delay of about nine months as the Magistrate has received the same only on 04-12-2013. What kind of evidentiary value could be assigned to this evidence?
● Shanthi's body was found in her apartment. After murder, it appeared to have been locked from inside, for P.W.3 says he pressed the buzzer before informing P.W.2. If so, who has opened it? There is no evidence. Nor does Ext.P-3 observation magazar refers anything about the door.
● The next in the sequence is the recovery of M.O.2, a gold chain, allegedly belonging to Shanthi, based on the information that A-1 had made in the course of investigation. Admittedly in its physical form it was recovered only from P.W.8, a staff of the financier to whom P.W.7, said to be A-1's friend, had pledged. And, none, including P.W.2, the husband of the victim has identified it as belonging to Shanthi.
● The shocker is that prosecution has not even attempted to match the blood group in the dress materials of A-1 with that of those recovered from the body of the dead even when both are available.
13. The only fact that remains proved is that on 26-03-2013, Shanthi's body was found inside her apartment in a pool of blood with a cut injury on her neck. Going by the opinion of P.W.19 the doctor who conducted postmortem her death might have occurred between 2 p.m. and 4 p.m. on 26-03-2013. Barely on these two facts the prosecution scores a point in its favour, but they do not take the prosecution anywhere. On the vital question of involvement of appellant in the offence, the evidence it made available is a non starter and it continued so till the end. They instead of providing a chain of proved facts consistent to uphold the guilt of the accused persons, look disjunctively scattered without any degree of cogency and appear inconsistent with the guilt of the appellant. In the end it is a lost opportunity and wasted efforts for the prosecution, both of which were well within the power of the investigating agency to avoid.
14. To conclude, this Court finds no merit in the case of the prosecution and hence it allows this appeal. The conviction and sentence imposed on the appellant/A1 by the learned II Additional District Judge, Salem in S.C.No.380 of 2014 dated 24.03.2016 are set aside. The appellant/A1 is acquitted from the charges. Since the appellant is in jail, he is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. The fine amount, if any paid, shall be refunded to him.
(S.N.,J) (N.S.S.,J.) 14.02.2017 ds S.NAGAMUTHU,J AND N.SESHASAYEE, J.
ds To:
1. The II Additional Sessions Judge, Salem.
2. The Inspector of Police, Pallapatty Police Station, Salem District.
3. The Public Prosecutor High Court, Madras.
Crl.A.No.845 of 2016 14.02.2017 http://www.judis.nic.in