(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C to allow this appeal and set aside the judgment and conviction dated 03.09.2015 by the learned Principal Sessions Judge, Thoothukudi in S.C.No.76 of 2015 and acquit the appellant.)
M.V. Muralidaran, J.
1. The appellant is the sole accused in S.C.No.76 of 2015, on the Principal Sessions Judge, Thoothukudi. The trial Court framed charges under Section 302 of I.P.C against this Appellant/Accused.
2. The trial Court by Judgment dated 03.09.2015 convicted the appellant under Section 302 of I.P.C. for life imprisonment and to pay a fine of Rs.1000/- in default further undergo rigorous imprisonment for three months. The set off was allowed under Section 428 of Cr.P.C. Challenging the said conviction and sentence passed against her, the present appeal has been filed by the appellant/accused.
3. The case of the prosecution is that the accused Lakshmi is the wife of the deceased Veerapandi and they are residing at Kamarajar Nagar, Arumuganeri. The deceased Veerapandi is in the habit of consuming Alcohol and beaten up his wife, Lakshmi. PW-1, Thalaikan, the brother of the deceased intervened and compromised them. Due to the harassment and torture met out by the accused, on 03.07.2013 at about 10.00 p.m the deceased Veerapandi quarreled with his wife, which was compromised by their son Vijayakumar and after compromise, he left to his home for sleep. In the midnight of 1.45 a.m, on 04.07.2013, while the deceased Veerapandi was sleeping, his wife decided that the death of her husband only would save her life, put a Grinding stone on his head and in the result he died. On 4.7.13 at about 8.00 a.m. the said incident was informed to PW-1 over phone who is the brother of the deceased by his sister s son Mariyappan. After PW-1 came to the occurrence place, i.e., the house of his brother, on seeing the dead body of the deceased he was weeping and at that time, the respondent police came to the spot and he gave a complaint Ex-P1 to the respondent police. The respondent police has registered FIR in Crime No:244 of 13 and the accused has been charged under Section 302 of I.P.C.
4. After filing the charge sheet before the Learned Judicial Magistrate, Thiruchendur in P.R.C.No.01 of 2014, the case was made over to the Learned Principal District and Sessions Judge, Thoothukudi and the same was numbered as S.C.No.76 of 2015. In this case, 13 witnesses were examined as prosecution side witnesses and 15 Exhibits were marked on the side of prosecution and there are 7 material objects produced before the Trial court. But there was no witness and exhibits on the side of the accused.
5. In this case, PW-1 Thalaikan who is the brother of the deceased Veerapandi deposed that he is working in a hotel at Tiruchendur and he received phone call from PW-2 Mariyappan, who is the sister s son of PW-1 about the death of his brother deceased Veerapandi and he reached the occurrence place at 8.A.M on 04.07.2013 where he had seen his brother s dead body with head injury and also the wife of his deceased brother in an unconscious state of mind. PW-1 also noticed the blood stained Grinding stone near the dead body of his brother. After 15 minutes from the arrival of PW-1, the police had taken the accused to the hospital. He is not an eye witness.
6. PW-2 Mariyappan, the sister s son of the deceased informed his uncle PW-1 about the death of his elder uncle Veerapandi over phone. So he is also not an eye witness.
7. PW-3 Chitra is the daughter-in-law of the deceased and wife of Vijayakumar. She is residing nearby the house of the deceased. She turned as hostile witness.
8. PW-4 Kaalai @ Isakki Muthu is a Neighbour of the deceased deposed that he did not know how Veerapandi died. At the time of death of Veerapandi his wife was in the house. He came to know about the death at 7.00 a.m. on 04.07.2013.
9. PW-5 Smt. Lakshmi, Sister of the deceased Veerapandi deposed that she came to know about the death of her brother Veerapandi from the neighbours at 7.00 a.m. on 04.07.2013. She stated that her younger brother told her that frequently her deceased brother and his wife had quarrel with each other. She also further stated that her elder brother told her younger brother that his wife would murder him. As told, her brother was murdered by his wife. She also further deposed that her two brothers along with the Accused/Appellant herein used to consume alcohol. It was told to PW-5 by her brother that her deceased brother was harassed by his wife and for that no complaint was given to the police.
10. PW-13, the Investigating Officer deposed that in the arrest memo, it was not mentioned that the accused consumed sleeping tablets and she was unconscious. Further he deposed that the accused was sent to Government Hospital, Tiruchendur for treatment and after two days i.e., on 06.07.2013 only she was arrested in front of Government Hospital. The doctor who gave treatment to the accused was not examined by him. Further PW-13 has not obtained certificate for the treatment of the accused from the doctor. Though the son of the deceased namely Vijayakumar was shown in the list of witness, he was not examined.
11. On the evidence taken by the trial court namely Principal Sessions Judge, Thoothukudi came to the conclusion that the charges laid against the accused were proved by the circumstantial evidence led by the prosecution.
12. In the above said circumstances, though there is no direct eye witness, the learned Trial Judge convicted the accused for the offences under section 302 of I.P.C. Against the said conviction the present appeal has been filed.
13. We have heard Mr.R.John Sathyan, learned counsel appearing for the appellant and Mr.C.Ramesh, learned Assistant Public Prosecutor and we have also perused the records carefully.
14. In this case, going through the evidences and documents produced by the prosecution, the investigation conducted by the prosecution is not proper. First, we have to see the evidence of PW-1 who is the younger brother of the deceased Veerapandi. He stated that the police had taken the accused, who was in unconscious state of mind to the hospital. Further, he deposed that the accused stated to him that she will be peaceful if his brother is dead and she will murder him. Whereas, PW-12, the Sub Inspector of Police deposed that she had taken the accused to police station for changing her dress. Whereas PW-13, the Investigation Officer deposed that he had sent the accused to Hospital for treatment through his assistant viz. PW-12. There are three contra statements with regard to sending the accused to hospital.
15. Further on considering Ex-P1 Complainant, PW-1 has not stated that the accused told him that the death of his brother alone would give Peace to her and therefore she told that she would murder him.
16. A Perusal of PW-13, the Investigation Officer s evidence shows that he has not examined the doctor who treated the accused. There is no material evidence is produced to show that the accused was treated for consumption of sleeping tablet. Further PW-13 the Investigation Officer deposed that no certificate was obtained from the doctor who stated to have given treatment to the accused. The prosecution has not explained as to why the other two sons of the deceased were not examined.
17. It is a vital factor that no accident register was marked by the prosecution in order to prove the fact that the accused was sent to Government Hospital, Tiruchendur for treatment. The non-examination of doctor who treated the accused and non-production of accident register is a fatal to the prosecution case. Therefore the arrest of accused by PW-13 on 6.07.2013 in front of Government Hospital is doubtful. The prosecution has also failed to give explanation why the son of the deceased namely Vijayakumar was not examined as witness though his name was mentioned in the list of witness. The non examination of Vijayakumar by the prosecution creates doubt in the mind of the court, since the case of the accused is that her son Vijayakumar gave a complaint first and the same was not produced before the Court.
18. The learned Judge has convicted the accused on assumption by holding the accused guilty that there are possibilities to murder her husband deceased Veerapandi by using Grinding Stone, since the accused is in the same house and the same was proved by the evidence of PW-4. The other conclusion by the Learned Judge that the deceased is the husband of the accused and therefore there are possibilities to reside in the same house by both of them. The said finding is also erroneous one and the same is also an assumption and presumption.
19. In this case the conviction is based on circumstantial evidence, on surmises and conjectures. The prosecution failed to establish the circumstantial evidence beyond reasonable doubt.
20. As for 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 inference 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. Therefore the benefit of doubt is given to accused and the appellant / accused is acquitted from all the charges.
21. 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.
22. 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 if any by the appellant shall be refunded to him.