Judgment:
(Prayer: Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment passed by the learned II Additional District and Sessions Judge, Poonamallee, Thiruvallur district in S.C.No.108 of 2012 dated 20.09.2013.)
S. Nagamuthu, J.
1. The appellants are the accused 1 to 3 in S.C.No.108 of 2012 on the file of the learned II Additional District and Sessions Judge, Thiruvallur at Poonamallee. They stood charged for offences under Sections 302 and 120 (B) I.P.C. By judgment dated 20.09.2013, the trial Court convicted all the three accused under both the charges and sentenced them to undergo imprisonment for life and pay a fine of Rs.500 each in default to undergo rigorous imprisonment for one year for offence under Section 302 I.P.C. and to undergo rigorous imprisonment for two years and pay a fine of Rs.500 each in default to undergo simple imprisonment for six months for offence under Section 120(B) I.P.C. Challenging the said conviction and sentence, the appellants are before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
2.1. The deceased in this case was one Mr.Royappan. The first accused is his wife. The marriage between them was celebrated 15 years before the occurrence. Out of the said wedlock, they had a male and a female child. Later, the first accused came to know that the deceased was already married and his first wife was alive. The first accused, tolerated the same and she did not question. However the deceased became a drunkard and in drunken state, he on many occasions, both physically and sexually harassed her. The first accused tolerated these harassments also.
2.2. Again, the deceased, married yet another woman from Madurai and brought her to Chennai to the house where the first accused was living with her children. The first accused was helpless. The deceased made the third wife also to live in the same house. Even then, he did not stop harassing the first accused. He started harassing both the first accused as well as his third wife, both physically and sexually. Unable to bear this torture, the first accused came out of the house and went to a different place and started living. To maintain the children, the first accused chose to beg in the bus stand as well as in the temple. Life in this way was going on for sometime.
2.3. The sister of the deceased was living in Tiruverkad. The deceased came to know that the first accused was begging in Tiruverkad, he came there, found the first accused and wanted her to go back home at Chennai and continue her married life. But the first accused refused. The deceased pretended as though he had consumed poison and the first accused took him to the hospital and saved him. Thereafter, he lived with the first accused in his house for sometime. Again, he started harassing her both sexually and physically in drunken state. Therefore, the first accused made a complaint to the police and in the talk in the police station, they got separated.
2.4. On one occasion, the daughter of the first accused went to Koyambedu bus stand along with her friend where, the deceased came and cut the friend of his daughter. In connection with the same, a case was registered. The deceased thereafter went to Kerala to escape from the clutches of law. The first accused went to Mangadu where she started living with her children. This time, since the children had grown up, she gave up begging and instead she was selling flowers and from out of the said meager income she was maintaining the family.
2.5. The deceased returned from Kerala. In the meanwhile, the first accused had developed intimacy with the second accused and thus the second accused started living with the first accused at her house. The deceased, who returned from Kerala came to know about the same. Therefore, he went to the third accused the sister of the first accused, who was residing at Tiruverkad. He insisted that the third accused should agree for sexual life with him because her sister viz., the first accused had started living with the second accused. Since the third accused refused, he started harassing the third accused also. The third accused informed the same to the first accused. Since the harassment became intolerable, according to the case of the prosecution, all the three accused decided to do away with the deceased.
2.6. On 06.12.2011, in the evening, the deceased came fully drunk to the house of the third accused. Within a short while, due to over drinking, he fell asleep and the third accused informed the same to the first accused. The accused 1 and 2 immediately rushed to the house of the third accused. All the three accused attacked the deceased with wooden logs and killed him. This is the crux of the case of the prosecution.
2.7. P.W.1 the Village Assistant of Tiruverkad, came to know that the dead body of the deceased was lying at the house of the third accused, he made a complaint to Tiruverkad Police Station on 06.12.2011 at 10.45 p.m. On the said complaint, P.W.14 the then Inspector of Police registered a case in Crime No.552 of 2011 under Section 302 I.P.C. Since the assailants were not known, it was so mentioned in the F.I.R. Ex.P1 is the complaint and Ex.P18 is the F.I.R. He forwarded both the documents to the Court, which was received by the learned Magistrate at 11.40 a.m. on 07.12.2011.
2.8. P.W.14, took the case for investigation. He went to the place of occurrence, prepared an observation mahazar and a rough sketch. He conducted inquest on the body of the deceased and forwarded the same for postmortem.
2.9. P.W.9 conducted autopsy on the body of the deceased on 08.12.2011 at 11.45 a.m. He found the following injuries:
Injuries: Contusion 2x1cm x skin deep seen over the middle of right eyebrow. Laceration (1) 5x1 cm x scalp deep on the Rt side of forehead. Skin edges irregular and contused. (2) 6x0.5x1 cm x scalp deep on the middle of forehead. (3) 5 x 0.5 cm x skin deep above the left eyebrow with contusion of the upper eyelid.
Cut injuries: 20x0.5to 1.5 cm x cavity deep was seen on the front and sides of the neck. Skin edges and underlying tissues were clean cut it was situated 11 cm from the left mastiod process, 5 cm from the chin and 12 cm from the right mastoid process. It was superficial on the right side and deep in the front and left side of the neck. The superficial muscle layer, subcutaneous tissues and blood vessel above cut and contused. The deeper layer of muscles were cut. There was a 0.3x0.2 cm clear cut hole seen in the left juggler vein with oozing of dark fluid blood into the surrounding tissues. The major blood vessels and munder of the right side of neck were intact. The hyoid bone, lanyvgeal cartilages and trachea in the frontal neck were intact.
The head: Scalp contusion was seen on the left temporal, partial left temporal partial and vertex of the head. Multiple contusion, fractures were seen in the portena part of the skull. Dura was intact sub-dural hemorrhage was seen all over the brain surface. Brain matter was oedematous. O/S dark fluid blood was seen in the Lt and Rt lateral verticals of the brain. Intra cerebral hemorrhage with dark soft clotted blood was seen in the cerebrum in the medline of the brain above the lateral verticals and also in the cerebellum lobes in the back of the brain. Multiple comminuted fractures were seen in the left side of the base of the skull.
The Neck: Injuries as mentioned above. The Thorax: well forms. Heart appeared enlarged and softened c/s was empty. Both lungs were well expanded and softened c/s was pale with oozes of pale blood stained fluid. The abdomen: stomach contained 180 gms of partly digested flood particles with fermented odour c/s mucosa was odematous and pale. The liver and spleen c/s was pale. Kidney left was odematous c/s of both were pale. Blader was empty. Intestine were distended with gas. The pelvis/spinal column were intact.
Ex.P10 is the postmortem certificate. He gave opinion that the death of the deceased was due to the multiple injuries found on the body of the deceased.
2.10. P.W.14 had requested the services of the fingerprint expert. According to P.W.10, he came to the place of occurrence and on through examination, he found chance fingerprints. After the arrest of the accused, when the fingerprints of the three accused were compared, the fingerprint of the second accused tallied with the chance fingerprint. The police sniffer dog was brought to the place of occurrence, which did not yield any positive result.
2.11. When the investigation was in progress, it is stated that all the three accused went to the 15th Ward Councilor of Chennai Corporation, who in turn produced all the three accused before P.W.5 the then V.A.O. It is alleged that before P.W.5, the first accused gave a voluntary confession. P.W.5 reduced the same into writing. Ex.P2 is the said confession. P.W.5 produced all the three accused before P.W.14, on such production, the first accused gave a voluntary confession, in which she disclosed the place where she had hidden the knife. In pursuance of the same, M.O.1 knife was recovered. The second accused also gave a voluntary confession, in which, he disclosed the place where he had hidden a lungi and a saree. In pursuance of the same, they were recovered. He also produced a wooden log from the hideout. The third accused also made a voluntary confession, in which she has disclosed the place where she had hidden a saree and a jacket and they were also recovered.
2.12. On returning to the police station, P.W.14 forwarded the accused to Court for judicial remand and handed over the material objects also to the Court. On completing the investigation, P.W.14 laid chargesheet against all the accused.
2.13. Based on the above materials, the trial Court framed charges as detailed in the first paragraph of this judgment, which the accused denied. In order to prove the case, on the side of the prosecution, as many as 14 witnesses were examined, 21 documents and 16 material objects were marked.
2.14. Out of the said witnesses, P.W.1 the Village Assistant, has stated that he found the dead body of the deceased in the house of the third accused and then he made a complaint to the police. P.W.2 a neighbour of the deceased has stated that he did not know about the occurrence at all. P.W.3 has turned hostile and she has not supported the case of the prosecution in any manner. P.W.4 has also stated that he did not know anything about the occurrence. P.W.5 has spoken about the extra judicial confession given by the first accused and the disclosure statement made by all the three accused before P.W.10 and consequential recoveries made.
2.15. P.W.6 has stated that on 06.12.2011, the three accused purchased a wooden log from her shop. P.W.7 an employee of TNEB has stated that there was no electricity failure at the place of occurrence on the crucial day. P.W.8 has stated that he took the dead body of the deceased from the place of occurrence and handed over the same to the doctor for postmortem as per the directions of P.W.14. P.W.9 has spoken about the postmortem conducted and his final opinion regarding the cause of death.
2.16. P.W.10 has spoken about the chance fingerprints lifted from the place of occurrence and his opinion that the fingerprint of the second accused tallied with the same. P.W.11 the head of the sniffer dog squad has stated that their efforts proved futile. P.W.12 has spoken about the preparation of the observation mahazar and a rough sketch at the place of occurrence. P.W.13 has spoken about the chemical analysis conducted on the material objects. P.W.14 has spoken about the investigation done and the final report filed.
3. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. However, they did not choose to examine any witness nor mark any document on their side. Having considered all the above, the trial Court convicted the accused as detailed in the first paragraph of this judgment and that is how, they are before this Court with this appeal.
4. When this appeal came up for final hearing on two occasions, the learned counsel on record did not make appearance. Therefore, we appointed Mr.Elayaraja Kandasamy as the Legal Aid Counsel to conduct the appeal on behalf of the appellants. Accordingly, he argued on behalf of all the appellants. We heard the learned Additional Public Prosecutor appearing for the State and also perused the records, carefully.
5. As we have narrated herein above, the prosecution relies only on the extra judicial confession said to have been given by the first accused to P.W.5 on 07.12.2011 at 08.00 a.m. But unfortunately, P.W.5 had not reduced the said extra judicial confession into writing, instead, he has prepared a brief report of the said extra judicial confession and the same has been marked as Ex.P2. It is not explained to the Court as to why the extra judicial confession said to have been made by the first accused was not verbatim reduced into writing. This creates initial doubt in the said extra judicial confession. It is further stated that the accused were produced before him by one Sathya Giri the 15th Ward Councilor of Chennai Corporation. He has also not been examined for the reasons best known to the prosecution. Above all, P.W.1 has admitted that on 07.12.2011, when he went to the police station to make the complaint, already the police had brought all the three accused to the police station and they were kept in the police custody. The F.I.R. reached the hands of the learned Magistrate at 11.40 a.m. on 07.12.2011. Before that, according to P.W.1 all the three accused were in the police station. When that be so, the evidence of P.W.5 that these three accused appeared before him on 07.12.2011 at 08.00 a.m. becomes doubtful. Thus, the so called extra judicial confession (oral confession) made by the first accused is shrouded with lot of doubts. It is the law that the extra judicial confession, if is doubtful, prudence requires that the Court should look for corroboration from independent sources. Here, in this case, absolutely there is no other evidence to corroborate the so called extra judicial confession of the first accused.
6. The learned Additional Public Prosecutor would submit that the chance fingerprints found at the place of occurrence tallied with the fingerprints of the second accused. In our considered view, this is not incriminating, as, after all the third accused is the sister of the first accused and the second accused was living with the first accused. It is in evidence that the accused 1 and 2 used to frequently visit the house of the third accused. Therefore, it is not incriminating that the fingerprints of the second accused were found in the house of the third accused. Thus, absolutely there is no evidence against these accused to conclusively hold that the death of the deceased was caused by these accused.
7. The trial Court has however placed reliance on the extra judicial confession to convict the accused, which in our considered view, is not sustainable. We hold that the prosecution has failed to prove the case beyond reasonable doubts and therefore the appellants are entitled for acquittal.
8. In the result,
(i) The appeal is allowed, the conviction and sentence imposed on the appellants by the learned II Additional District and Sessions Judge, Poonamallee, Thiruvallur district in S.C.No.108 of 2012 dated 20.09.2013 is set aside and they are acquitted.
(ii) The fine amount, if any paid, shall be refunded to them.
(iii) The bail bond, if any executed by them, shall stand discharged.