(Prayer: This Criminal Appeal is filed under Section 374(2) of Code of Criminal Procedure, 1973, to set aside the fine imposed on the appellant in S.C.No.177 of 2012, on the file of the II Additional Sessions Judge, Thoothukudi, by the Judgment dated 31.01.2013.)
1. The appellant is the sole accused in S.C.No.177/2012 on the file of the learned II Additional District Judge, Thoothukudi. The Trial Court framed charges under Section 342, 376 and 302 of I.P.C. against this Appellant/Accused.
2. The Trial Court by Judgment dated 31.01.2013 convicted the appellant under Section 302 of I.P.C. for life imprisonment and to pay a fine of Rs.500/- in default further undergo simple imprisonment for one year and convicted, and undergo Rigorous imprisonment for 7 years and to pay a fine of Rs.500/- in default to undergo simple imprisonment for 6 months for the offence under Section 376 of I.P.C. and is convicted and undergo simple imprisonment for 3 months. The set off was allowed under Section 428 of Cr.P.C. Challenging the said conviction and sentence passed against him, the present appeal has been filed by the appellant/accused.
3. The case of the prosecution is that the accused Madasamy S/o. Subramanian residing at Kumarigiri @ Kayaloorani Village has wrongfully confined and then raped and murdered one Rubika on 18.12.2010. The deceased Rubika aged about 19 years residing at Kumarigiri @ Kayaloorani Village with her father was studying B.Com 2nd Year. The accused is also a resident of the same village and was working as scavenger at L and T Company near south Veerapandiyapuram Village. It is usual for deceased Rubika to go to their Punja land and a nearby water pool for dispose of the wastages and for call of nature every day. On 18.12.2010 at about 5.30 p.m. as usual when she went to their Punja field, the accused followed her and suddenly caught hold her.
4. When Rubika alarmed and attempted to redeem her from the accused, the accused closed her mouth by his hand and out of which she fell down, the accused tore her clothes and raped her and then when the deceased try to escape from the place, the accused thought that if she is let alive, she will disclose the occurrence and therefore he pushed her into the water pool with an intention to kill her and strangulating her neck has pushed under water till she died. Hence, the accused has been charged under Section 342, 376 and 302 of I.P.C.
5. After filing the charge sheet before the learned Judicial Magistrate No.1, Kovilpatti in P.R.C.No.22 of 2012, the case was made over to the learned II Additional Sessions Judge, Thoothukudi and the same was numbered as S.C.No.177 of 2012. In this case, 22 witnesses were examined as prosecution side witnesses and 29 Exhibits were marked on the side of prosecution and there are 9 material objects produced before the Trial Court. But, there was no witness and exhibits on the side of the accused.
6. In this case, PW-1 Ramasubbu, the father of the victim Rubika deposed that Rubika is her 2nd daughter and it is usual for his daughter Rubika to go to their punja land that is situated near water pool for dispose of wastages and for call of nature at 5.00 or 5.30 p.m. every day. On the date of occurrence i.e., on 18.02.2010 PW-1 leaving his daughter in home, he left home for his work. After finishing his work he went to their punja land and found that his daughter is not there. On his return to home, he found house locked and therefore he searched her daughter all around and also searched her elder daughter Teepika. Thereafter, along with one Ramesh, who was standing nearby went and search his daughter with the help of torch light. Some villagers were also in search of PW-1's daughter due to the intimation made by Ramesh. But, as they did not find her till 07.00 p.m., he went to SIPCOT Police Station and gave Ex.P1-complaint. Thereupon, Police also came to punja land and searched the victim Rubika. They were unable to find out Rubika over their search made on the entire night. Being so, on 19.12.2010 the next day, when they were going nearby the water pool, they saw that two legs were found above the water and a body was found under the water. The same was intimated to the SIPCOT Police Station and the Police officials and forensic experts came to the spot and the body was pulled out from water. PW-1 identified his daughter Rubika in a dead condition. Her nighty was found in torn stage and abrasions were found on her hand, injuries were also found on her face and mud on her full head. Hence, he again lodged Ex.P2-complaint, the Police arrived and recovered the M.O.1-Gold chain, M.O.2-White colour flowered nighty, M.O.3-Inskirt, M.O.4-White colour Jimmies, M.O.5-bodies, M.O.6-Jetty, M.O.7-Rose colour hair clip, M.O.8-one pair of Rubber Chappal belonging to the deceased was recovered from the spot. Further, PW-1 deposed that on his return his home, he was informed that the accused was the person, who followed his daughter at that evening and there was no body except the accused.
7. PW-2 Ramesh, the cousin brother of PW-1 deposed that PW-1 came to him on 18.12.2010 at 06.15 p.m. and said that Rubika has not returned home from punja land and called upon PW-2 to search his daughter. Therefore, PW-1 and PW-2 along with some other villagers where in search of Rubika and they were unable to find her. Therefore, they returned home with an idea by search in the next morning. While in search of Rubika, they found her leg above in the nearby water pool and after intimation and arrival of the police officials, the dead body of Rubika was pulled out. She further deposed that the accused herein surrendered before the Village Administrative Officer and gave a statement regarding the occurrence.
8. PW-4 Devaraj @ Thiyagaraj, the father-in-law of PW-1's elder daughter deposed that he was also a a person in search along with other villagers on 18.12.2010. They were unable to find out her on the day of occurrence i.e., on 18.12.2010 and later on the next day on 19.12.2010, the body of the deceased Rubika was pulled out from the water.
9. PW-5 Tmt.Jeeva a nearby resident deposed that when herself and her neighbour were talking in the street, Rubika went to punja land for dispose of the waste and thereafter went missing and was found as a dead body on the next day.
10. PW-6 Thiru.Jeyadoss @ Doss deposed that he is a resident of the same village and he was also one of the persons went in search of victim Rubika on the date of occurrence i.e., on 18.12.2010. They were unable to found her on the said day, only on 19.12.2010 morning Rubika was found and recovered as a dead body from the nearby pool. There were some injuries and abrasions were found on the body.
11. PW-7 Marimuthu deposed that he was working as a driver in a nearby mineral water company and on 21.12.2010, the seizure of the materials i.e., Material Objects were made in his presence and therefore he attested Ex.P6 the Attachi.
12. PW-8 Ananthi, the Junior Scientific Officer, Forensic Scientific Laboratory deposed that on 21.12.2010 on receipt of Ex.P7, the material parts of the deceased were analyzed and there were no poison detected in the parts.
13. PW-9 Kajendravaradhan, the Assistant Director of Forensic Scientific Laboratory deposed that on receipt of Ex.P8, he subjected M.O.6-Jetty for seminal detection and during the analysis semen was detected and issued Ex.P9 chemical report. Thereafter, he forwarded the seminal stained samples to Madurai Regional Forensic Science Laboratory for grouping test. Wherein the grouping test was conducted and Ex.P-10 and Ex.P11 was reported. The reports and Ex.P10 and Ex.P11 resulted that the grouping test conducted is inconclusive and further it is found that Spermatozoa and Semen were not detected. He further deposed that for the possibility for the Semen in the body of the deceased to mix in the water since the body was found in the water.
14. PW-10 Mr.Tenson deposed that he is the building contrctor under whom the accused is working as a contract labour from the year 2010. The accused have habit of smoking of Beedi and taking liquor as and when he comes to receive salary. The accused would also come with refill pen and sign it by the pen, when receiving the salary on Saturday.
15. PW-11 Mr.Devados deposed that he is working as Seller in SIPCOT Tasmac Shop No.10047 and on 18.12.2010 at 3.00 p.m., the accused Madasamy came to his shop and drank quarter liquor and purchased half bottle liquor for Rs.500/- and left away.
16. PW-12 Mr.Uruthamadasamy deposed that he is the resident of the same village and employed as a building contract labour. Both the accused and Rubika were known to him. At about 5.00 p.m. on 18.12.2010, when he was working in his building contract labour work, he saw the accused Madasamy went towards Punja Land. On the next day, he came to that Rubika is murdered.
17. PW-13 Mr.Ravinathan deposed that the Village Administrative Officer of Therku Veerapandiyapuram deposed that the accused appeared before him and gave Ex.P12 confession statement and also produced the Jetty, Hair clip and a pair of Rubber Chappal. Thereafter, making endorsement in Ex.P12 and after preparation of Ex.P14, he along with the accused went to the SIPCOT Police Station and handed over the accused over the material objects.
18. PW-14 Mr.Mottaisamy deposed that he is the resident of the same village doing mason work. On 18.12.2010 at about 5.00 p.m., when he went to main road to have a tea, he saw Madasamy going towards village punja land. He further deposed that when he came to main road after completion of work at 06.15 p.m., he saw the accused/appellant returning from west with wet and mud dress. Thereafter, he came to know the occurrence.
19. PW-15 Mr.Wolson, the retired Sub-Inspector of Police deposed that when he was working as Special Sub-Inspector, SIPCOT Police Station, PW1 appeared before him on 18.12.2010 and gave Ex.P1 complaint. The same was registered in Cr.No.410 of 2010 under Missing of Women and Ex.P16 was sent to Court. He also assisted to recover the body from the pool.
20. PW-18 Dr.Manokaran, Professor at Thoothukudi Government Medical College deposed that he conducted the post-mortem of the deceased Rubika and found 18 injuries over the body. Ex.P17-Post-mortem Certificate stating that the deceased would appeared to have died of asphyxia due to combined effect of strangulations and drowning. The death would have occurred 12 to 22 hours prior to autopsy. No poison was detected from the body of the deceased. No Spermatozoa or Semen were detected in the specimen sent on 24.01.2010 when he was on same duty, he examined the accused Madasamy and during his examination, six abrasions were found. He further opined that the injuries on the body of the accused and the dead body of the deceased may acquired on the same period of time.
21. PW-19 Mr.Karuppasamy deposed that he was the photographer took photos in the occurrence place. He took photos of the deceased i.e. M.O.9 CD's and Photos.
22. PW-22 Mr.Rajakumar Nalaraj, the Inspector of Police, Thoothukudi District CBCID deposed that after taking up of the further investigation of the case, he visited the place of occurrence and after verifying observations and rough sketch as correct, has not prepared any other mahazar or rough sketch. He recorded statement under Section 161(3) of Cr.P.C. from the witness on 24.12.2011. He again visited the place of occurrence and seized the M.O.1-Gold Chain under Attachi and laid charge sheet after completing investigation on 30.05.2012 against the accused under Section 342, 376 and 302 of I.P.C.
23. On the evidence taken by the trial Court namely II Additional Sessions Judge, Thoothukudi came to the conclusion that the charge laid against the accused were proved by the circumstantial evidence led by the prosecution.
24. In the above said circumstances, though there is no direct eye witness, the learned trial Judge convicted the accused for the offences under Sections 302, 376 and 342 of I.P.C. Against the said conviction, the present appeal has been filed.
25. We have heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor and we have also perused the records carefully.
26. On taking into account of the evidence of PW-1, it is found that he is totally unaware of the whereabouts of his daughter Roobika on the day of occurrence i.e. on 18.12.2010. He has stated that it was only told to him on the next day by a third person that the victim Rubika has been followed by the accused. But, there is no such allegation in Ex.P2 by P.W.1 lodged on 19.12.2010 to that effect, further the prosecution failed to examine such informant to PW1 in the course of trial. At this point, P.W.1 can be treated only as hearsay evidence. Further, the key factor making the entire evidence of PW1 as inadmissible and unreliable is that he has deposed that in the place of occurrence there was a Ball point pen and a bundle of Beedi aside. However, on perusal of Ex.P2 dated 19.12.2010, the complaint lodged by PW1 later to the recovery body of the victim and from the Chief Examination of PW1 itself, there was no such alleged presence of the objects i.e. Ball point pen and bundle of Beedi stated by the P.W.1. The prosecution has also not seized of the alleged objects. At the same time, the PW2, the brother of the PW1, who said to have accompanied P.W.1 in search of his daughter, has not stated about the presence of such alleged objects nearby the place of occurrence. However, the trial Court in a circumstance that none of the objects were produced before it has chosen to hold the accused guilt on a coming to a conclusion that "PW1's suspect on Accused regarding beedi and ball point pen found near the place of occurrence is corroborated with evidence of P.W.10:". Whereas P.W.10, the contractor / Employer of the accused has merely stated that the accused used to sign his salary voucher with a ball point pen that accused always carry with him. But, no document or vouchers were produced before the Court so as to believe the statement of P.W.10 by the prosecution.
27. The learned counsel appearing for the appellant/accused argued that so far as the evidence of P.W.14 is concerned the Chief and Cross examination serve discrepant to each other. In chief examination, P.W.14 has deposed that he saw the accused while he proceeded and was in motion, whereas P.W.14 in Cross examination deposed that the accused was seen when he was halt/ standing at bus stand. The direction of movement of the accused as well as the place alleged of seen itself, remain discrepant to each. On taking into account of P.W.15's version, in Chief Examination, he deposed that the accused was seen proceeding towards the Punja, whereas in Cross examination stated the accused was seen standing in a Bus stand, thus it too discrepant. Therefore, the witnesses of PW1, PW2, PW5, PW11, PW12 and PW14 are inconsistent with the story of the prosecution and the same have not corroborated and the conviction of the accused by the learned trial Judge based on circumstantial evidence is fatal to the case of the prosecution. Therefore, we hold that they cannot be treated as circumstantial evidence sufficient to hold any person guilty.
28. We have also closely perused the record and we have noted that the learned trial Judge erred in coming to the conclusion that M.O.6-Jetty is produced by the accused to the Village Administrative Officer, PW-13 and gave confession statement Ex.P12. Whereas, PW1, the father of the deceased has deposed in his cross that when the police asked him to hand over the Jetty of the deceased, he has not handed over the same to the police. Under such circumstances, the production of M.O.6 creates doubt in the mind of the Court.
29. The learned Judge failed to consider that the alleged confession Ex.P12 given by the accused to the Village Administrative Officer, PW-13 is inadmissible in evidence as the same is extra-judicial and contrary to the Evidence Act. The learned Judge has gone to believe the alleged confession Ex.P-12 given before PW-13 Village Administrative Officer, which is against the order of this Court and the Hon'ble Apex Court.
30. As far as circumstantial evidence is concerned, it is well settled law that the prosecution has to establish each circumstance by independent evidence and the circumstances so established should for a complete chain without giving room to any other hypothesis and should be consistent with his guilt and inconsistent with his innocence. Circumstantial evidence should be strong, convicting, unassailable, leading to the only interference and conclusion that the crime should have been committed only by the accused and not give any chance even to doubt about the hands of third parties. In the present case, the prosecution has failed to establish the above said factors. Hence, the conviction by the trial Court on the basis of the circumstantial evidence must go. Further, in support of his arguments, the learned counsel for the Appellant/Accused has produced the Judgment of Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC 1622, wherein it was held that while dealing with circumstantial evidence, when two views are possible on the evidence on record, one pointing to the guilt of the accused and other to his innocence. The accused is entitled to have the benefit of doubt which is favourable to him. Further, it was held that:
(i) The Courts should borne in mind that the circumstances from which the conclusion of guilt is to be drawn it should be fully established. The Circumstances concerned 'Must or Should' and not may be established.
(ii) The facts should be consistent with the hypothesis of the guilt of the accused and it should not be explainable on any other hypothesis except that the accused is guilty.
(iii) The circumstances should exclude every possible hypothesis except the one should be proved.
(iv) There must be a chain of evidence so complete as not to leave any reasonable ground conclusion consistent in the innocent to the accused.
31. The next point argued by the learned counsel for the appellant/accused is that the evidence of PW-18 Dr.Manoharan, who conducted autopsy and issued Post-mortem Certificate Ex.P17, wherein it is stated that there is no spermatozoa / semen found in the body of the deceased. Further, he opined that the death would have been caused by several persons. But, the trial Court has not considered the evidence of PW-18 doctor. Further, in Ex.P9, the Chemical report submitted by the Forensic Department, which was marked by PW-9, it is found that on subjection of the M.O.6-Jetty to Chemical analysis, no semen and no blood was deducted from it. Again PW-9 deposed that on examination of M.O.6 for grouping, the result of grouping test was inconclusive with that of this accused.
32. The prosecution has thus failed to prove their case beyond reasonable doubt. Therefore, the benefit of doubt is given to accused and the appellant/accused is acquitted from all the charges.
33. In view of the above narration and discussion, we hold that the conviction of the appellant/accused on the basis of circumstantial evidence by the trial Court is by presumption and summaries, since the prosecution has not proved the same beyond all reasonable doubts. Therefore, the accused is acquitted from all the charges by giving benefit of doubt. Consequently, the conviction and sentences passed against the appellant herein must go.
34. In the result, the Criminal Appeal is allowed and conviction and sentence imposed on the appellant are hereby set aside and the appellant is acquitted and he is directed to be set at liberty forthwith unless his presence is required in connection with any other case. Fine amount paid by the appellant shall be refunded to him.