(Prayer: Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, 1973, against the judgment and order, dated 25.09.2019 in S.C.No.105 of 2013 passed by the learned Sessions Judge, Mahalir Fast Track Court, Theni.)
J. Nisha Banu, J. & N. Anand Venkatesh, J.
1. The appellants, aggrieved by the judgment and order of the learned Session Judge, Mahalir Fast Track Court, Theni, made in S.C.No.105 of 2013, dated 25.09.2019, convicting each of the appellants for offence under Sections 302 and 201 IPC and sentencing them to undergo Life Imprisonment and fine of Rs.10,000/-, in default, to undergo 2 months Rigorous Imprisonment for offence under Section 302 IPC and to undergo 7 years Rigorous Imprisonment and fine of Rs.10,000/- in default, to undergo 2 months Rigorous Imprisonment for offence under Section 201 IPC, have filed this Criminal Appeal.
2. The case of the prosecution is that the appellants had a property dispute with P.W-5, who is the brother of A1. Four or five days prior to the date of occurrence, the accused persons wanted to remove their agricultural produce and hence, sought for the permission of P.W-5 to take it through their pathway and P.W-5 and his wife Anuthiammal (deceased) refused to grant the permission. According to the prosecution, this incident resulted in the accused persons deciding to do away with Anuthiammal and pursuant to the same, on 28.12.2012, at about 11.00 a.m., when Anuthiammal was alone in her house, the accused persons lured her to their house which was near the house of the deceased and on the deceased coming to their house, poured kerosene on the deceased and lit her on fire. Thereafter, they are said to have immersed the head of the deceased in an open water tub and as a result, the deceased suffocated and died. The accused persons, thereafter, are alleged to have taken the deceased to her house and created a scene as if the deceased hung from the ceiling with the help of her saree and thereby attempted to cause disappearance of the evidence of the offence. In view of the same, charges were framed against each of the appellant for offence under Sections 302 and 201 IPC.
3. The prosecution examined P.W-1 to P.W-25 and marked Ex.P1 to Ex.P14 and material objects were identified and marked as M.O.1 to M.O.12.
4.The Trial Court questioned the appellants under Section 313 (1) (b) Cr.P.C. by putting the incriminating materials that were collected in the course of Trial. The accused persons denied the same as false.
5.The Trial Court, on considering the facts and circumstances of the case and on appreciating the evidence available on record, came to a conclusion that the prosecution has proved the case beyond reasonable doubts and thereby, convicted and sentenced the accused persons in the manner mentioned supra. Aggrieved by the same, the accused persons have filed this appeal.
6. Heard Mr.M.Jegadeesh Pandian, learned counsel appearing for the appellants and Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor appearing for the respondent.
7.This Court has carefully considered the materials available on record and the submissions made on either side.
8. The case of the prosecution hinges upon circumstantial evidence. The circumstantial evidence that was relied upon by the prosecution are:
9. It is now a well settled law that in a case of circumstantial evidence, every circumstance must be fully proved and the circumstances must form a chain of evidence so complete as to exclude every hypothesis other than the guilt of the accused.
* The demise of the deceased was homicidal and the same was established by examining the postmortem Doctor (P.W-22) and by marking the postmortem certificate (Ex.P8).
* The motive for the occurrence has been sought to be established through the evidence of P.W-1, P.W-2, P.W-5 and P.W-7.
* The accused persons were last seen with the deceased and the same was sought to be established through the evidence of P.W-3.
* The recovery of M.O.2 to M.O.7 through the evidence of P.W-10 through Ex.P2 and Ex.P3.
* The non-explanation of the burn injury sustained by A2 immediately after the incident, even when a relevant question was put to A2 under Section 313 (1) (b) of Cr.P.C.
* The Observation Mahazar and the Rough Sketch marked as Ex.P2 and Ex.P12, which shows the location of the house of the accused persons and the deceased and the fact that no one else was living there.
10. The prosecution wanted to establish the motive by projecting the property dispute between A1 and P.W-5, who are brothers. For this purpose, the prosecution examined P.W-13, who turned hostile. Through this witness, the prosecution wanted to establish the property dispute and also about the said witness seeing the deceased hanging with burn injuries and informing the same to P.W-1 through phone. There are two sources of information for P.W-1, who is the brother of the deceased, who gave the complaint (Ex.P1). The first source of information is P.W-13 and since this witness turned hostile, the so called information from P.W-13 is not established. The other source of information is P.W-4, who is a relative of A2. This witness in his evidence clearly states that he came to know of the incident only through persons who spoke about the same in the locality and he went to the scene of occurrence only around 2.00 to 3.00 p.m. on 28.12.2012. In view of the same, there is no possibility of P.W-4 informing P.W-1 about the incident. If both these sources cannot be relied upon, it is not known as to how P.W-1 explained about this incident through the complaint marked as Ex.P1.
11.According to the prosecution, the motive behind the crime is the property dispute. It is stated that A1 was asking P.W-5 to lease his portion of the property and the same was refused by P.W-5. However, Ex.D1 which was marked through P.W-5, shows that P.W-5 had already leased his portion of the property to A1 as early as in the year 2010 itself. This is further substantiated by the evidence of P.W-7, who also talks about P.W-5 already giving on lease his property to A1 and he acknowledges the existence of Ex.D1.
12. In the above circumstances, the motive as projected by the prosecution stands in a very weak wicket, since, even as per the charge framed against the accused persons, P.W-5 refused to give his portion of the property on lease and pursuant to the same, the accused persons were prevented to bring the produce through the pathway by P.W-5 and the deceased and the same resulted in the deceased being done to death by the accused persons. It is an admitted case of the prosecution that P.W-5 already had a dispute with the deceased and he was not involved in the so called incident where the accused persons were refused to be given the permission to use the pathway. Hence, the property dispute and the so called incident that took place four or five days prior to the date of occurrence, has not been substantially proved by the prosecution.
13. This Court has already questioned the source of information of P.W-1 as to how he came to know about the incident and gave the complaint. The inquest report (Ex.P13) reads as if P.W-5 was the first person, who had seen the deceased hanging with burn injuries. This statement made in the inquest report runs contrary to the evidence of P.W-5. The inquest report was prepared by P.W-25 on 28.12.2012. In the inquest report, a finding has been given as if A1 and A2 poured kerosene on the deceased and set her on fire and thereafter, suffocated her by forcing her head into an open water tub and thereafter, took the deceased to her house and created a scene as if she hung and committed suicide. All this information could not have been ascertained by P.W-25 even before the arrest of A1 on 29.12.2012 and the arrest of A2 on 30.12.2012. When P.W-25 was cross-examined and was specifically questioned as to how he had written the findings in the inquest report, he has stated that he collected information from P.W-1, P.W-2 and P.W-5. Insofar as P.W-1 and P.W-2 are concerned, their source of information has already been doubted since P.W-13 and P.W-4 do not talk about providing the information to P.W-1. That apart, P.W-5 was not even present in the scene of occurrence. Hence, the inculpatory statements made in the inquest report by P.W-25 becomes questionable. In the present case, even as per the evidence of P.W-1 and P.W-5, there is a long standing dispute between P.W-5 and the deceased. Dowry complaints were given against P.W-5 and his brothers and P.W-5 was not in good terms with the deceased. There was no effective investigation on the side of the police on the cause of death qua P.W-5. It is quite curious that P.W-5 was absent before and after the occurrence and according to him, he came to the house at about 4.30 p.m. and at that point of time, he found the police and the V.A.O. in his house. This witness falls under the category of a wholly unreliable witness.
14. Insofar as recovery is concerned, the evidence of P.W-10 has been relied upon by the prosecution, through whom Ex.P2 and Ex.P3 were marked. This witness was present along with 10-20 persons belonging to the locality and he was asked to sign by the police and he signed. Hence, the so called recovery of M.O.2 to M.O.7 through this witness does not enhance the credibility of the case of the prosecution.
15. The learned Additional Public Prosecutor was placing a lot of thrust on the last seen theory and the non-explanation of injuries by A2. Insofar as the last seen theory is concerned, the learned Additional Public Prosecutor relied upon Ex.A2-Observation Mahazar and Ex.P12-Rough Sketch. According to the learned Additional Public Prosecutor, these two documents clearly show that it was only the accused persons and the deceased, who were living in the nearby houses and P.W-3 has spoken about A2 coming out of the house and informing about the deceased setting herself on fire and attempting to grab her as a result of which, she sustained injuries.
16. Insofar as the last seen theory is concerned, except P.W-3 relied upon by the prosecution, there is no other witness. P.W-3, during the course of cross-examination, has categorically admitted that he went to the scene of occurrence at around 11.00 a.m. and by 11.30 a.m., the police had come to the scene of occurrence. This witness does not talk about seeing A1 and A2 coming out of the scene of occurrence. This witness only speaks about A2 informing him about the occurrence and she sustaining burn injuries. There is absolutely nothing stated against A1 and there is not a single witness, who even saw A1 in the scene of occurrence or coming out of the scene of occurrence. The evidence of P.W-3 is not sufficient to establish the last seen theory in this case and the circumstance has not been fully proved.
17. Insofar as the burn injuries sustained by A2 and she not being able to give a satisfactory answer, the Investigation Officer- P.W-25 categorically admits that he did not investigate the injuries sustained by A2. The question that was put to A2 under Section 313 (1)(b) of Cr.P.C pertained to the evidence of P.W-3. This evidence was not directly on the issue as to how A2 sustained burn injuries. The Trial Court has relied upon the remand report where the injury was noted when A2 was remanded. Such reliance placed by the Trial Court is unsustainable since a specific question should be put to the accused person as to how she sustained burn injuries and a record which was not even put to the accused, cannot be relied upon to render a finding.
18. It is very clear from Ex.A2 and Ex.P12 that the accused persons and the deceased were living in separate houses. According to the case of the prosecution, the deceased was done to death in the house of the accused persons and thereafter, she was taken to her house and the accused persons created a scene as if the deceased hanged to death and thereby, attempted to conceal evidence on the offence committed. Nobody saw A1 and A2 coming out of the house of the deceased after the incident. Only if somebody had seen them, the last seen theory will come into play. In the absence of the same, the last seen theory as projected by the prosecution must fail. That apart, the burn injury sustained by A2 and she not being able to explain the same will not come within the scope of Section 106 of the Evidence Act, since, such a question was not directly put to A2. Section 106 will come into operation only if the prosecution establishes that the accused persons were in such a position that they could have special knowledge of the fact concerned. The prosecution having failed to establish last seen theory, cannot rely upon Section 106 of the Evidence Act only based on an injury sustained by A2. This is more so where there is not a scrap of evidence available against A1 and the actual property dispute wa s between A1 and P.W-5.
19. The evidence of the postmortem Doctor (P.W-22) and the postmortem report (Ex.P8) marked through him, does not in any way help the case of the prosecution. The report states that the cause of death was due to asphyxia due to the combined effects of drowning and ante-mortem burns of about 40%. When the prosecution has not established the involvement of the accused persons in the crime, the fact that it was a homicidal death, cannot be put against the accused persons on assumptions and surmises.
20. In the present case, P.W-17 has admittedly taken photographs of the scene of occurrence and it was stored in the compact disk. For reasons best known to the Investigation Officer, those photographs were not even marked as a document in this case through P.W-17. If the photographs had been marked and questions had been put to P.W-17, there would have been more clarity to the case of the prosecution.
21. It is very u
Please Login To View The Full Judgment!
nfortunate that A1 has been convicted in this case without any evidence against him and after thoroughly searching the entire papers, the only evidence that has been put against him is the arrest of A1 and recovery of M.O.8. Not one circumstance has been proved against A1 and he has been convicted and sentenced on mere assumptions and on the so called property dispute between him and P.W-5. 22. In the considered view of this Court, the prosecution miserably failed to prove the case through circumstantial evidence and the test applied by the Apex Court in Sharad Birdhich and Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has not been fulfilled. 23.In view of the above discussion, this Court has to necessarily interfere with the judgment of the Trial Court made in S.C.No.105 of 2013 dated 25.09.2019. 24. In the result, (i) This Criminal Appeal stands allowed. (ii) The conviction and sentence passed by the learned Sessions Judge, Mahalir Fast Track Court, Theni, against the appellants in S.C.No.105 of 2013 dated 25.09.2019, is hereby set aside. The appellants are acquitted from all the charges. (iii) Since the first appellant/A1 is in jail, he is directed to be released forthwith, if his custody is not required in any other case. (iv) The bail bond executed by the second appellant/A2 after the sentence was suspended by this Court through order dated 22.06.2021 shall stand cancelled. The fine amount, if any, paid by the second appellant shall be refunded to her.