(Prayer: Appeals are filed under Section 374(2) of the Code of Criminal Procedure against the Judgment and conviction dated 20.02.2015, made in S.C.No.77 of 2014, on the file of the learned Third Additional District and Sessions Judge, Tiruchirappalli, Tiruchirappalli District.)
S. Nagamuthu, J.
1. The appellant in Crl.A.(MD).No.305 of 2015 and the appellants in Crl.A.(MD).No.281 of 2015 are the accused Nos.1 to 3 in S.C.No.77 of 2014, on the file of the learned Third Additional District and Sessions Judge, Tiruchirappalli, Tiruchirappalli District. The Trial Court framed as many as five charges against the accused, as detailed below.
|1||1 to 3||120-B IPC|
|3||1 to 3||302 IPC|
|4||1 to 3||392 r/w 397 IPC|
|5||1 to 3||201 IPC|
|Accused||Section of Law||Sentence||Fine amount|
|1 to 3||302 IPC||To undergo imprisonment for life.||Rs.5,000/- in default to undergo rigorous imprisonment for one year.|
|1 to 3||392 r/w 397 IPC||To undergo rigorous imprisonment for seven years.||Rs.5,000/- in default to undergo rigorous imprisonment for six months.|
|1 to 3||201 IPC||To undergo rigorous imprisonment for three years.||No fine.|
3.The case of the prosecution, in brief, is as follows:-
The deceased, in this case, was one Mrs.Tamil Selvi. PW-1 is her husband. The marriage between them was celebrated in the year 1996 and they have got two children, out of the wedlock. All of them were residing at Aattukara Street, Palakkarai, Tiruchirappalli District. The deceased was suffering from frequent stomach pain. She told that prayer to the God almighty would cure all her problems. She frequently used to go to Saibaba Temple at Mekkudi in Trichirapplli District.
3.1.On 02.07.2013, around 07.00 PM, as usual, the deceased left the house for the said temple. At that time, she was wearing gold jewels and silver anklets and covering jewels. [MO-1 to MO-8 and MO-10 to MO-12]. But, she did not return home. PW-2 and PW-3, the sons of the deceased, went in search of the deceased. They went to various places, but they could not find the deceased at all. But, neither PW-1 nor PW-2 and PW-3 made any complaint to the police immediately. They continued to search for the deceased.
3.2. While so, on 05.07.2013, around 04.00 PM, the dead body of the deceased was found floating in a Well belonging to one Mr.Veerappan at Mekkudi Village. PW-1, immediately, rushed to the spot along with PW-2 and PW-3. They found the dead body of the deceased floating in water. Immediately, he went to the Manikandam Police Station and made a complaint at 05.00 PM, on 05.07.2013. In the said complaint, he told that the deceased would have died by jumping into the Well and committed suicide, since she was suffering from abdominal acute pain. He did not mention anything about the jewels and other personal belongings of the deceased.
3.3. On receipt of the said complaint, PW-18, the then Sub-Inspector of Police, registered a case in Crime No.104 of 2013, under Section 174 of the Code of Criminal Procedure. EX-P1 is the complaint and EX-P20 is the First Information Report. Then, he forwarded both the documents to the Court.
3.4. Taking up the case for investigation, at 06.00 PM on 05.07.2013, PW-18 proceeded to the place of occurrence, prepared an Observation Mahazer and a Rough Sketch, showing the place of occurrence in the presence of the witnesses. Then, he recovered the dead body from the Well and conducted inquest on the dead body. EX-P22 is the inquest report. Then, he forwarded the dead body for postmortem.
3.5. PW-16 - Dr.R.V.S.Renugadevi conducted autopsy on the body of the deceased at 11.00 AM, on 06.07.2013. EX-P17 is the postmortem certificate. She found the dead body in a highly decomposed condition. The internal organs of the deceased were sent for chemical examination. The report revealed that there was neither poison nor alcohol. PW-16 was unable to find the cause of death of the deceased, since the dead body was found in a highly decomposed condition.
3.6.The case, at that stage, was taken up for investigation by PW-19, the then Inspector of Police, on the orders of the Assistant Superintendent of Police. He examined PW-1 to PW-3, few more witnesses and recorded their statements. PW-19 came to know that the deceased was using two mobile numbers, namely, 97895 99415 and 83447 25628. From the call details of these two mobile numbers, he found that the first accused had frequently talked to her. Therefore, suspecting the first accused, PW-19 went in search of him. He, accordingly, arrested the first accused, on 22.07.2013 at 02.00 PM.
3.7. On such arrest, the first accused gave a voluntary confession, in which he disclosed the place, where he had hidden a Nokia Cellphone. In pursuance of the same, the accused took the police and the witnesses to the hide out and produced the White and Black Colour Nokia Cellphone [MO-9]. PW-19 recovered the same under a mahazer in the presence of the witnesses. Then, he disclosed that he had pledged gold thali balls, numbering four and a gold ear stud [MO-8] at Kruthi Finance Company, which is a Pawn Broker Shop. In pursuance of the same, the first accused took the police and the witnesses and identified the said shop. In the said statement, he had further disclosed the place, where he had pledged some more jewels with M/s.Kajamalai Sivam Finance Company. In pursuance of the same, the first accused took the police and the witnesses to the said shop, from where five items of gold jewels, namely, MO-1 to MO-5 were recovered. Then, he took the police and the witnesses and identified the accused Nos.2 and 3. At 06.00 PM, on the same day, PW-19 arrested the accused Nos.2 and 3. On such arrest, both of them made extra judicial confessions.
3.8. In his confession, the second accused disclosed that he will identify the place, where he had hidden a pair of silver anklets. In pursuance of the same, he took PW-19 and the witnesses to the place of hide out and produced MO-6, silver anklets. In the same statement, he further disclosed the place, where he had hidden a Nokia Cellphone. Accordingly, the a Grey Colour Cellphone [MO-13] was recovered. Then, in the same statement, he had further disclosed the place, where he had hidden a pair of gold simikki and a gold mottal. In pursuance of the same, he took the police and the witnesses to Kruthi Corporation, a Pawn Broker Shop, from where MO-10 and MO-11 were recovered.
3.9. The third accused, in his confession, disclosed the place, where he had hidden a TVS Star City Motorcycle bearing Registration No.TN-48-D-1407, a lungi and a covering chain. Accordingly, he took the police and the witnesses and produced MO-12 and MO-14 and the Motorcycle. PW-19 recovered the same under separate mahazers. Then, he forwarded all the accused to the Court for judicial remand and handed over the material objects also to the Court. On completing the investigation, he laid charge sheet against the accused.
3.10. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused were questioned in respect of the charges, they pleaded innocence. In order to prove the charges, on the side of the prosecution, 19 witnesses were examined, 32 documents and 14 material objects were marked.
3.11. Out of the said 19 witnesses, PW-1 to PW-3, the husband and two sons respectively of the deceased, have stated that the deceased was found missing from 02.07.2013 onwards. They have further stated that lastly, the deceased told that she was going to Saibaba Temple at Mekkudi and thereafter, she did not return back. PW-1 has identified MO-1 to MO-13 as the personal belongings of the deceased. PW-2 and PW-3 have not identified MO-1 to MO-13. They have only stated that they found the dead body in the Well. PW-4 has spoken about the preparation of Observation Mahazer and the Rough Sketch and the recovery of material objects from the place of occurrence.
3.12. PW-5 has spoken about the arrest of all the three accused and their confession statements and the recovery of MO-1 to MO-13 from the respective accused. PW-6, PW-8 to PW-13 and PW-15 have turned hostile and they have not supported the case of the prosecution in any manner. PW-7, the proprietor of Kruthi Finance Company, has spoken about the pledging of the jewels and the recoveries made from him. PW-14, a Scientific Officer, has stated that the diadem test proved negative. PW-16, Dr.R.V.S.Renugadevi, has spoken about the autopsy conducted by her and her final opinion regarding the cause of death. PW-17, the then Sub-Inspector of Police has stated that he collected the call details of the Cellphone used by the deceased. PW-18, has spoken about the registration of the case, on the complaint made by PW-1 and the initial investigation conducted by him. PW-19 has spoken about the further investigation conducted by him and the filing of final report.
3.13. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against them, they denied the same as false. However, they did not choose to examine any witness nor to exhibit any document. Having considered all the above materials, the Trial Court convicted the appellants, as detailed in the first paragraph of this Judgment and punished them accordingly. That is how, the appellants are now before this Court with this Criminal Appeal.
4. We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.
5. From the evidences of PW-1 to PW-3, the prosecution has, of course, succeeded in establishing that the deceased had lastly gone out of her home, at 07.00 PM, on 02.07.2013, informing that she was going to Saibaba Temple at Mekkudi Village. From their evidences, the prosecution has, however, established that the deceased did not return home. Neither PW-1 nor his sons had chosen to make any complaint to the police immediately. The dead body was found floating in a Well, at 02.00 PM, on 05.07.2013. The dead body was found in a highly decomposed condition. At the earliest point of time, when PW-1 made a complaint to the police, he told that since the deceased was suffering from unbearable stomach pain, she would have jumped into the Well and committed suicide. This is the earliest statement of PW-1 in EX-P1.
6. In this context, now, we have to look into the evidence of PW-16, Dr.R.V.S.Renuga Devi. During postmortem conducted by her, she found the dead body in a highly decomposed condition. Even the internal organs were all found in a highly decomposed condition. There was no external injury found on the body of the deceased. Thus, PW-16 could not give definite opinion regarding the cause of death.
7. In a case of this nature, where the prosecution relies on the circumstantial evidence, it is necessary to prove the cause of death and rule out the alternative theory that the death of the deceased was due to either accidental fall or suicidal jump into the Well. Here, in this case, in the earliest statement, PW-1 told that the deceased would have jumped into the Well and committed suicide, as she was suffering from acute stomach pain. Thus, the prosecution is obliged to rule out the possibility that the death was due to either accidental fall or suicidal jump into the Well. This has not been ruled out by the prosecution at all. In the absence of any positive evidence regarding the cause of death, it is difficult to hold that the death of the deceased was a homicide.It would have been possible to hold that the deceased had been done to death, if at least, the jewels and other personal belongings of the deceased were found in the possession of the accused soon after the missing of the same from her.
8. Here, in this case, PW-1, at the earliest point of time, when he made a complaint to the police did not inform that the jewels and other personal belongings were found missing. As an afterthought, belatedly, now a story has been introduced as though the jewels as well as two Cellphones used by the deceased were found missing. Though it is stated that the call details of those two Cellphones were collected by PW-19, the same have not been proved in evidence, as required under Section 65(b) of the Indian Evidence Act, 1872. There is no evidence at all that these two Cellphones and the Mobile Numbers were registered in the name of the deceased. Thus, the prosecution has failed to establish that MO-9 to MO-13 belonged to the deceased, which were used by her. Though it is stated by the prosecution that lastly the deceased has spoken to the first accused, to prove the same, the call details have not been proved in accordance with law.
9. So far as the jewels are concerned, as we have already pointed out, had it been true that the jewels were found missing, PW-1 would not have omitted to mention the same in EX-P1. The very fact that he had not mentioned about the missing of the jewels in EX-P1 and the very fact that PW-2 and PW-3 have not stated that MO-1 to MO-13 belonged to the deceased would create a doubt about their allegations that these jewels and the Cellphones were stolen away.
10. Now, turning to the recovery of the jewels, it is stated that some of the jewels were pledged with Kruthi Pawn Broker Shop, under two receipts, namely, EX-P13 and EX-P14. According to PW-19, Under EX-P13, on 04.07.2013, four thali balls and one ear stud were pledged. Under EX-P14, on 08.07.2013, the second accused pledged a gold simikki and a gold mottal. However, the Register maintained by the said Pawn Broker Shop have not been seized, produced and proved in evidence. EX-P13 and EX-P14 are the original receipts, according to the case of the prosecution. PW-7 has admitted that the original receipts would have been in the hands of the pledger. There is no evidence as to where from EX-P13 and EX-P14 were recovered by PW-19. It is not known as to how EX-P13 and EX-P14 were retained by PW-7. This also creates doubt in the case of the prosecution. At any rate, since there is a doubt regarding the missing of the gold jewels and since there is a doubt regarding the pledging of the jewels, it is difficult to hold that these accused had removed the personal belongings of the deceased. Thus, absolutely there is no acceptable evidence on which these accused could be convicted.
11.Article 21 of the Constitution of India, which is considered to be the heart and soul of the Constitution, guarantees the protection of life and personal liberty of any person. The deprivation of such liberty could be made only by following the procedure established by law. The procedure enshrined in Article 21 of the Constitution of India must not only be established by law but that must be just, fair and reasonable. In other words, the life and liberty of an individual cannot be deprived of on mere surmises and suspicion. In the instant case, since the circumstances projected by the prosecution have not been proved beyond reasonable doubts, we are unable to sustain the conviction imposed on these accused.
12. In the result, theseCriminal Appeals are allowed; the conviction and sentence imposed on the appellants, by Judgment dated 20.02.2015, made in S.C.No.77 of 2014, on the file of the learned Third Additional District and Sessions Judge, Tiruchirappalli, Tiruchirappalli District, is set aside and the appellants are acquitted. Fine amount, if any, paid by the appellants shall be refunded to them. Bail bond executed by the appellants and the sureties shall stand terminated.