(Prayer:Criminal Appeal has been filed under Section 374(2) of Cr.P.C. against the judgment, dated 26.03.2015, made in S.C.No.79 of 2013, by the Sessions cum Mahila Fast Track Court, Ramanathapuram.)
S. Nagamuthu, J.
1. The appellants are the accused Nos.1 to 3 in S.C.No.79 of 2013 on the file of the Sessions cum Fast Track Mahila Court, Ramanathapuram. The trial Court framed as many as 4 charges against the accused as under:
|Charge No.||Accused||Offence U/s.|
|1||A1 to A3||U/s.498-A IPC|
|3||A2 and A3||U/s.302 r/w 34 IPC|
|4||A1 to A3||U/s.201 IPC|
2. The case of the prosecution in brief is as follows;
(a) The accused 1 and 2 are the husband and wife respectively. The second accused is their son. They were all residing at Kaduguchandai Chathiram, Kadaladi Taluk, Ramanathapuram District. The deceased in this case was one Muthupriya. PWs.2 and 3 are the mother and father respectively of the deceased. PWs.2 and 3 were residing at Vadapathi Mangalam Village, Tiruvarur District and their native place is Enathi Village, Muthukulathoor Taluk. The deceased, at the time of occurrence, was hardly 14 years old. She was studying 9th standard and staying in a girls hostel.
(b) Few days before 12.04.2012, the second accused, aged about 21 years, had kidnaped the deceased from the hostel. The warden of the hostel informed PWs.2 and 3 about the same. PW2 immediately rushed to Muthukulathoor Police Station and made a complaint on 12.04.2012 and based on the same, a case was registered. During investigation, the deceased was rescued by the Police and produced before the jurisdiction Magistrate on 20.04.2012. Since the deceased expressed her desire to go with her parents, the learned Magistrate entrusted the deceased to the custody of PW2. PWs.2 and 3 took the deceased to Vadapathi Mangalam Village and kept her in their custody at their house.
(c) Within a weeks time, the second accused again kidnapped the deceased from the house of PWs.2 and 3 at Vadapathi Mangalam Village. On enquiry, PWs.2 and 3 came to know that the second accused was living with the deceased at Maravar Street, Muthukulathoor, in a rental house and in fact, they were living as husband and wife. PWs.2 and 3 came to Muthukulathoor and took the deceased to Vadapathi Mangalam and kept her in their custody. Thereafter, the 2nd accused came to Vadapathi Mangalam and met PWs.2 and 3 and wanted to take the deceased with him. PWs.2 and 3 told him that the deceased not even attained puppetry and therefore, it is not proper on his part to live with her. In the talks held, the second accused agreed to marry the deceased after she attaining the puppetry and gave an undertaking in writing in a stamp paper (Ex.P2) to that effect and then, with the consent of PWs.2 and 3, he took the deceased again to Muthukulathoor and lived with her at Maravar Street, Muthukulathoor, in the rental house.
(d) It is stated that after some time, the accused started demanding 10 sovereigns of gold and Rs.10,000/- cash as dowry from the deceased. The deceased informed PWs.2 and 3 over phone about the demand made by all the three accused. Thereafter, on 29.10.2012 at 8.00 p.m., according to the case of the prosecution, the 1st accused with the assistance of the accused 2 and 3 killed the deceased by strangulating her. The occurrence was not witnessed by any one. On 30.10.2012 at 6.30 a.m. PW1, the uncle of the deceased, on hearing about the occurrence, came down to the place of occurrence. According to him, from the neighbour, he came to know that it was the first accused, who killed the deceased by strangulating her with the help of the accused 2 and 3. Immediately, he made a complaint to the Police. On 30.10.2012 at 9.00 a.m. on the said complaint, a case was registered in Crime No.287 of 2012 under Section 174 Cr.P.C. (suspicious death).
(e) PW15, the then Inspector of Police, took up the case for investigation and went to the place of occurrence at 10.00 a.m., prepared an observation mahazar and a rough sketch, showing the place of occurrence. He recovered the saree that was used for ligature. He forwarded a copy of the FIR to the Executive Magistrate for holding inquest on the body of the deceased. Accordingly, PW12, the Revenue Divisional Officer, Paramakudi, held inquest on the dead body of the deceased. He forwarded the same for postmortem.
(f) PW10, Dr.Velmurugan, conducted autopsy on the body of the deceased on 31.10.2012 at 12.00 p.m.. He found the following injuries:
External : Lying supine frothy, fluid blood oozing out from both nostrils. An antemortem ligature mark of about 03 c.m. Width commencing from the left side of neck. (at the perpendicular line of the external ear-auricle) encirculating the neck into the right side and ending at the midline of the posterior part of neck. No other external injuries. Public hair-adult type. Breast-well formed.
Internal : Skull no bone fracture. Brain and Membranes computed. Vertebral column no fracture.
No fracture of teeth.
Neck : Antemortem inward compression fracture of right greater corana of Hyoid bone (5 m.m.) with antemortem inward compression fracture of thyroid cartilage (full length) seen.
Thorax : Heart all 4 chambers filled with fluid blood.
Stomach : 100 ml of dark, odourless fluid present.
Abdomen : All organs congested. Uterus : (N.C) no products of conception found.
All 4 limbs : No fracture.
Vaginal Orifice : No evidence of semen by vision noted.
He gave opinion that the death of the deceased was due to strangulation. Ex.P10 is the Postmortem Certificate and Ex.P11 is his final opinion regarding the cause of death.
(g) The investigation was, thereafter, taken over by PW16, who succeeded PW15. Based on the above opinion of the Doctor, who conducted autopsy and the report of the RDO, he altered the case into one under Sections 498-A and 302 IPC and examined many more witnesses and recorded their statements. He arrested the accused 2 and 3 on 27.11.2016 at 4.00 p.m. On such arrest, the second accused gave a voluntary confession in which he disclosed the place where he had hidden a plastic chair. In pursuance of the same, he took the Police and witnesses to the place of hide out and produced the plastic chair. PW16 recovered the same under a Mahazar and forwarded the accused to the Court for judicial remand. At the request of PW16, PW14 recorded the statement of the witnesses under Section 164 Cr.P.C. On completing the investigation, he laid charge sheet against the accused.
(h) Based on the above materials, the trial Court framed charges against the accused, as detailed in the first paragraph of this Judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 17 witnesses were examined and 18 documents and 2 material objects were marked.
(i) Out of the said witnesses, PW1 to PW3, the uncle, the mother and the father respectively of the deceased have spoken about kidnapping of the deceased by the accused before 12.04.2012 and about the fact that the deceased was rescued by the Police. They have also stated about Ex.P2 the undertaking given by the accused. At last, they have stated that after some time, all the three accused demanded 10 sovereigns of gold and Rs.10,000/- as dowry. PW1 has further spoken about the complaint given by him. PW4 is a resident of Muthukulathoor. He has spoken about the preparation of the observation mahazar and rough sketch. He has further stated about recording of his statement under Section 164 of the Code of Criminal procedure. PW5 has stated that on 30.10.2012 at 4.00 a.m. he found all the three accused talking among themselves in their house.
(j) PW6 has spoken about the preparation of the observation mahazar and rough sketch. He has also spoken about the arrest of the accused and the recovery of the material objects in pursuance of the disclosure statement made by the second accused. PW7, a constable, has stated that he took the dead body of the deceased and handed over the same to the Doctor for postmortem, as directed by the investigating officer. PW8, yet another constable, has stated that he handed over the internal organ recovered from the dead body for chemical examination. PW9, the Headmaster of the school, where the deceased was studying, has spoken about the date of birth of the deceased. According to her, Ex.P8 is the Transfer Certificate of the deceased.
(k) PW10 has spoken about the postmortem conducted and his final opinion regarding the cause of death. PW11, an Assistant Director of Forensic Lab, has stated about the chemical examination conducted on the viscera organ of the deceased. According to him, there was neither poison nor alcohol in the same. PW12, the RDO, has spoken about the inquest conducted on the body of the deceased. PW13 has stated that he handed over the FIR to the learned Magistrate, as directed by the investigating officer. PW14, the then Judicial Magistrate of Kamuthi, has stated about the fact that he recorded the statement of witnesses under Section 164 Cr.P.C. PW15 and PW16 have spoken about the investigation done and final report filed. PW17, the Head Clerk of the Magistrate Court, has stated that he forwarded the material objects for chemical examination as directed by the learned Magistrate.
(l) When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., they denied the same as false. However, they did not choose to examine any witness nor to mark any document on their side. The defence of the accused was a total denial. Having considered all the above, the trial Court convicted them, as detailed in the first paragraph of this judgment. That is how they are before this Court with this appeal.
3. We have heard the learned senior counsel appearing for the appellants/A1 to A3 and the learned Additional Public Prosecutor appearing for the respondent and we have also perused the records carefully.
4. In this case, as we have already pointed out, there is no eyewitness to the occurrence. The allegation in the charge is that the first accused killed the deceased by strangulating her with the assistance of the accused 2 and 3. In order to prove this charge, we find that absolutely there is no evidence on record. As we have already stated, PWs.1 to 3 have stated only about the earlier occurrence in which the deceased was kidnaped by the accused. They were not eyewitnesses to the occurrence. They have further stated that all the three accused over phone demanded 10 sovereigns of gold jewels and Rs.10,000/- as cash. But, there is no evidence incriminating the accused. The trial Court has also convicted these accused out of surmise.
5. This is a case based on circumstantial evidence. In a case of this nature, it is absolutely necessary for the prosecution to prove the circumstances projected by it beyond reasonable doubts and such proved circumstances should form a complete chain so as to unerringly pointing the guilt of the accused and there should not be any alternative hypothesis which would be inconsistent of the guilt of the accused.
6. In this case, except the deceased was living with the accused 1 to 3 at their house, the prosecution has not proved any other circumstances. Even the cause of death as alleged by the prosecution that he was strangulated to death also has not been proved. The Doctor, who conducted autopsy on the body of the deceased, had found only a ligature mark around the neck of the deceased. There were on other marks of violence found on the body of the deceased. The hyoid bone was found fractured. From these appearances, the Doctor had given opinion that the death was due to asphyxia by strangulation. The Doctor has not at all stated that the said asphyxia would not have been due to hanging. It is not as though the ligature mark found around the neck of the deceased was a postmortem injury. Admittedly, it was an antemortem injury. It was the cause for the death.
7. Had it been true that the deceased was strangulated manually by the first accused, there would have been other marks of violence on the body of the deceased. But, no such mark of violence was found on the body of the deceased. From the opinion of the Doctor, the prosecution has not succeeded in proving beyond reasonable doubt that the death of the deceased was due to manual strangulation or due to ligature strangulation caused by some one. In other words, the prosecution has failed to rule out the possibility of death due to suicidal hanging.In view of the foregoing discussions, we hold that the prosecution has failed to prove that the death of the deceased was a homicide.
8. Now turning to the punishment under Section 498-A IPC. Admittedly, the second accused had fallen in love with the deceased and he kidnapped her. After she was rescued, the second accused went all the way to the house of the deceased, persuaded PWs.1 and 2 and took her back with him. While so doing, he executed Ex.P2, a letter of undertaking in Rs.50/- stamp paper, where he has stated that he would marry the deceased after she attained puppetry. He further gave undertaking that until then he would maintain her at his house. There is no indication in Ex.P1 complaint that the accused demanded dowry. It is also not the case that any of the accused made such a demand for dowry directly to PWs.1 to 3. In a vague manner, PWs.1 to 3 have stated that on one occasion, the deceased had spoken to them over phone and told that the accused were demanding Rs.10,000/- and 10 sovereigns of gold. We find it difficult to believe PWs.1 to 3 going by the other circumstances, which we have already discussed. Thus, in our considered view, the allegation that all the three accused demanded dowry from the deceased also is very difficult to believe. Thus, we hold that the prosecution has failed to prove the charge under Section 498-A IPC also.
9. Since the accused are entitled for acquittal from the charge under Sections 302, 302 r/w 34 and 498-A IPC, as a corollary, they are entitled for acquittal from the charge under Section 201 IPC also.
10. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed by the trial Court against the appellants in S.C.No.79 of 2013 are set aside and they are acquitted from all the charges. The bail bond, if any, executed by them shall stand terminated. The fine amount, if any, paid by the appellants shall be refunded to them.