Full Judgment
(Prayer:Criminal Appeal filed under Section 374 of Cr.P.C. against the judgment, dated 27.06.2012, made in S.C.No.399 of 2011, by the learned VI Additional District Judge, Madurai.)
S. Nagamuthu, J.
The appellant is the sole accused in S.C.No.399 of 2011 on the file of the learned VI Additional District Judge, Madurai. She stood charged for the offence under Sections 302 and 404 IPC. By judgment dated 27.06.2012, the trial Court convicted her under both the charges and sentenced her to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default to undergo rigorous imprisonment for one year for the offence under Section 302 IPC and to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for six months for the offence under Section 404 IPC. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
2. The case of the prosecution in brief is as follows;
(a) The deceased in this case was one Mrs.Saratha Ammal. She had been residing at Door No.16, Ayyanar Koil 4th Street, Noorzahan Compound, Sellur, Madurai, as tenant for about 50 years. The father of the accused is the landlord. The deceased had fallen in huge arrears of rent. In Noorzahan Compound, there were number of houses in a row which all belong to the father of the accused. The accused, on behalf of her father, used to visit the said compound to collect rent from all the tenants.
(b) on 26.02.2011 at about 7.30 p.m., it is alleged that the deceased was alone in her house and watching TV. The accused came to her house for the purpose of collecting rent. It is the further case of the prosecution that when she demanded the arrears of rent, the deceased refused to pay and she was evasive. Provoked by the act of the deceased, it is alleged that the accused dragged the deceased by her hands. This resulted in a scuffle between them. In that scuffle, it is stated the accused dashed the deceased against the wall. The deceased fell down breaking her head. The accused left an yellow colour bag in which she had a lock and key. After having ascertained that the deceased had breathed her lost, she removed a gold chain from the neck of the deceased, weighing seven sovereigns and fled away from the scene of occurrence.
(c) PW1 is the son of the deceased. He was residing in a neighbouring street. The deceased used to come to his house every day night for stay as she found it difficult to stay at her house alone during night hours. On 26.02.2011, since till 9.30 p.m., the deceased had not come to his house for stay, PW1 wanted her son to go to the house of the deceased and to fetch her. PW2 is his son. He, immediately, went to the house of the deceased, returned back and informed him that the deceased was lying dead inside the house and an yellow colour cloth bag was found on the face of the deceased. Immediately, PW1 rushed to the house of the deceased and found the deceased dead. On hearing his alarm, the people from the neighbouring house came to the place of occurrence. Then, he gave intimation to the Police.
(d) PW19 is the then Inspector of Police, Sellur Police Station. At 10.30 p.m. on 26.02.2011, PW1 appeared before him at the Police Station and presented a complaint under Ex.P1. He registered a case in Crime No.520 of 2011 under Sections 396 and 302 IPC. Ex.P15 is the FIR. He forwarded both the documents to the Court and then, he proceeded to the place of occurrence and prepared an observation mahazar and a rough sketch in the presence of PW9 and PW20. Then, he recovered bloodstained earth and sample earth from the place of occurrence under a mahazar. He conducted inquest on the body of the deceased and then, forwarded the same for postmortem.
(e) PW13 “ Dr. Alaudin conducted autopsy on the body of the deceased on 27.02.2011 at 01.30 a.m. He found the following injuries:
1) Laceration 3 cm x 1 cm x Bone deep noted on right occipital region.
2) Contusion 3 cm x 1 cm noted on right lower lip.
3) Contusion 2 cm x 1 cm noted on outer aspect of left eye.
4) Contusion 8 cm x 5 cm noted on left cheek.
5) Antemortem disarticulation of teeth noted in the right upper and lower quadrant and alveolar sockets found contused, and contains blood clots.
On dissection of scalp, skull and Dura:
Contusion scalp 10 cm x 7 cm noted on the left fronto parietal region and 6 cm x 4 cm noted on right occipital region. Diffused subdural haemorrhage and subarachnoid haemorrhage noted over the both cerebral hemispheres. Laceration 4 cm x 2 cm x 1 cm noted on mid occipital lobe of brain. ?
Ex.P8 is the Postmortem Certificate. He gave opinion that the deceased would appear to have died of head injury, 16 to 20 hours prior to autopsy.
(f) Continuing the investigation, PW19 recovered the bloodstained cloth materials from the dead body of the deceased. Then, he handed over the Case Diary to his successor for continuation of the investigation. PW22 took up the case for investigation on 01.03.2011. On 07.03.2011 at 6.30 a.m., he arrested the accused in the presence of PWs.7 and 8. On such arrest, she gave a voluntary confession. Then, he took PW22 and PWs.7 and 8 to her house and produced MO.2 - gold chain and MO.9 “ an yellow colour cloth bag and MO.10 “ a white colour purdha. On returning to the Police Station, he forwarded the accused to the Court for judicial remand and also handed over the material objects to the Court. He made a request to the Court to forward the material objects for chemical examination. The report revealed that there was bloodstain on MOs.1, 3 to 10. On completing the investigation, he laid charge sheet against the accused.
(g) Based on the above materials, the trial Court framed two charges under Sections 302 and 404 IPC against the accused. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 22 witnesses were examined and 20 documents and 10 material objects were marked.
(h) Out of the said witnesses, PW1 is the son of the deceased, who has stated that he found the dead body of the deceased at 9.30 p.m. on 26.02.2011. He has further stated that the gold chain weighing 7 sovereigns was found missing from the neck of the deceased. He has identified MO.2 as the stolen property. PW2 is the son of PW1, who has stated that when he went to the house of the deceased at 9.30 p.m., he found the deceased dead. He has further stated that he informed the same to PW1. PW3 is yet another son of PW1. He has stated that he found the dead body at 9.30 p.m. at her house. PW4 is the wife of PW1. She has also stated that she found the dead body of the deceased at 9.30 p.m. on the day of the occurrence. PW5 is a resident of a different house in the same compound of which the father of the accused is the landlord. She has stated that on 26.02.2011 at about 7.00 p.m. the accused came to her house to collect rent and left. She has not stated anything incriminating against the accused. PW6 is yet another tenant of a different house and she has stated that she found the dead body. PWs.7 and 8 are the key witnesses for the prosecution, in whose presence the accused was arrested and MO.2 was recovered on the disclosure statement made by her. But, PWs.7 and 8 have turned hostile and they have not supported the case of the prosecution in any manner. PW9 has spoken about the preparation of the observation mahazar and rough sketch, and recovery of material objects from the place of occurrence. PW10 has turned hostile and he has not supported the case of the prosecution in any manner.
(i) PW11 is the Head Constable, who handed over the dead body to the hospital for postmortem. PW12 is the Head of Sniffer Dog Squad belonging to the Police department. According to him, on 26.02.2011, as per the request made by the investigating officer, he brought a Police sniffer dog to the place of occurrence, but the same did not give any clue. PW13 has spoken about the postmortem conducted by him and his final opinion regarding the cause of the death of the deceased. PW14 is the Forensic Expert, who visited the place of occurrence on 26.02.2011 at 11.00 p.m. On thorough examination, he found no chance finger print of the third party. PW15 has spoken about the photograph taken by him at the place of occurrence. PW16 is yet another Forensic Expert, who examined the body of the deceased and found that there were no scientific clues available to help the prosecution. PW17 is the Sub Inspector of Police, who has stated that he handed over the material objects to the Court as per the order of the Inspector of Police. PW18 is the Deputy Director of Forensic Lab at Madurai, who has stated that on examining the clothe materials and the bloodstained earth, he found human blood on the same. PW19 has spoken about the registration of the case on the complaint of PW1 and also about the investigation done by him. PW20 has spoken about the preparation of observation mahazar and rough sketch. He has also spoken about the recovery of the material objects. PW21 is the Head Constable, who has stated that he handed over the FIR to the learned Magistrate at 6.15 a.m. on 27.02.2011. PW22 has spoken about the investigation done by him.
(j) When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., she denied the same as false. However, she did not choose to examine any witness nor to mark any document on her side.
(k) Having considered all the above materials, the trial Court convicted the accused under both the charges and accordingly, punished her. That is how she is before this Court with this appeal.
3. We have heard the learned counsel appearing for the appellant and the learned Additional Public Pleader appearing for the State. We have also perused the records carefully.
4. This is a case based on circumstantial evidence. The deceased in this case was residing alone at her house. There is no evidence on record as to when she was lastly found alive in her house. There is only evidence to the effect that she was found dead at 9.30 p.m. on 26.02.2011. PWs.1 to 4 have stated that they found the dead body of the deceased at 9.30 p.m. on 26.02.2011. From their evidences, it is crystal clear that the deceased died some time before 9.30 p.m. on 26.02.2011. The medical evidence clearly establishes that the death was by means of homicide. Thus, the prosecution has succeeded in establishing the fact that the deceased was done to death by somebody, before 9.30 p.m. on 26.02.2011.
5. The next circumstance relied on by the prosecution is that the gold chain measuring 7 sovereigns owned by the deceased was found missing. PW1 had mentioned the same even at the earliest opportunity in Ex.P1 itself. There is no denial of the fact that such a gold chain was found missing from the body of the deceased. PW1 has identified MO.2 as the one which was found missing. From these evidences, the prosecution has also established that MO.2 was stolen away, after committing the murder of the deceased. In other words, the prosecution has established that the murder of the deceased and theft of the gold chain took place in one and the same transaction and therefore, the person, who committed the theft, had committed the murder also.
6. Now, the question is who is the murderer?. In order to prove this fact, the prosecution relies only on the recovery of MO.2 from the house of the accused, as the same was produced by her, on the basis of her confession on 07.03.2011. According to the case of the prosecution, the accused was arrested at 6.30 a.m. on 07.03.2011 in front of the Bell Hotel in Madurai, in the presence of PWs.7 and 8. But, PWs.7 and 8 have turned hostile and they have not supported the case of the prosecution in any manner. Thus, in order to prove the arrest of the accused, confession made by her and the consequential recovery of MO.2., the prosecution has relied only on the evidence of PW22 - the Inspector of Police, who investigated the case. For a moment, we are not prepared to say that because PW22 happens to be a Police Officer and interested in the prosecution case, his evidence should be rejected. He, being the investigating officer, should have interest in the success of the prosecution case. Hence, he is quite naturally an interested witness. Therefore, his evidence requires close scrutiny. If his evidence passes the test of close scrutiny, then there is no impediment, either legally or factually, to rely on his evidence. But, here in this case, we find that the evidence of PW22 cannot be accepted for more than one reason.
7. Firstly, though it is stated that in the presence of PWs.7 and 8, the accused gave a confession voluntarily, which contains an information leading to the recovery of MO.2, PWs.7 and 8 have turned hostile and therefore, the said disclosure statement could not be proved through them. But, unfortunately, the said disclosure statement, which is otherwise admissible under Section 27 of the Indian Evidence Act, has not seen the light of the day and the same has not been proved in evidence at all. Even in the oral evidence of PW22, it is only stated that the accused gave a voluntary confession. What was the information given by the accused, which lead to the discovery of a relevant fact, has not been spoken to by PW22, even orally. Thus, absolutely, as of now, there is no evidence as to what was the confession made by the accused. But, the conduct of the accused in taking PW22 and the witnesses to her house and producing MO.2 is certainly relevant under Section 8 of the Indian Evidence Act. If it is held that the accused was found in possession of MO.2, soon after the commission of the theft, then, this Court may raise a presumption under Section 114 of the Indian Evidence Act that it was she who committed the theft of MO.2 But, in the absence of any corroboration from PWs.7 and 8 and in the absence of any proof with regard to the contents of the statement made by the accused and in view of the other inconsistencies, we find it difficult to act upon the evidence of PW22 that the accused produced MO.2 from her custody. It is a pure question of fact which we hold that the prosecution has failed to prove the case beyond reasonable doubts. If this part of the evidence is rejected, then, absolutely, there is no other evidence against the accused to sustain the conviction.
8. Above all, the proximate time of the occurrence also has not been proved by the prosecution. The deceased was found dead at 9.30 p.m., as spoken to by PWs.1 to 5. When she was found lastly alive is not known. There is no evidence to that effect. The accused was found in the compound at 7.00 p.m. by PW5. If the murder had taken place even before 7.00 p.m., the accused cannot be blamed for that. It is not known as to why no evidence was collected as to when the deceased was found alive in her house lastly, which also creates doubt in the case of the prosecution. It needs no mentioning that in a case based on circumstantial evidence, the prosecution should prove the circumstances pleaded beyond all reasonable doubts and all such proved circumstances should form a complete chain unerringly pointing to the guilt of the accused and there should not be any other hypothesis, which will be inconsistent with the guilt of the accused. Here, in this case, the prosecution has failed to prove the case beyond all reasonable doubts. Thus, the appellant/accused is entitled for acquittal.
9. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed by the trial Court in S.C.No.399 of 2011 is set aside and she is acquitted. The bail bond, if any, executed by her shall stand cancelled. The fine amount, if any, paid by her shall be refunded.