(Prayer:Criminal Appeal filed under Section 374 of Cr.P.C. against the judgment, dated 23.04.2015, made in S.C.No.24 of 2012, by the learned Ist Additional District and Sessions Judge (PCR), Thanjavur District.)
S. Nagamuthu, J.
1. The appellant is the sole accused in S.C.No.24 of 2012 on the file of the learned Ist Additional District and Sessions Judge (PCR), Thanjavur. He stood charged for the offences under Sections 364 and 302 IPC. By judgment dated 23.04.2015, the trial Court acquitted the appellant/accused from the charge under Section 364 IPC, however, convicted him under the charge under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2,000/-, in default to undergo rigorous imprisonment for six months. Challenging the said conviction and sentence, the appellant/accused is before this Court with this appeal.
2. The case of the prosecution in brief is as follows;
(a) The deceased in this case was one Mrs.Devika, aged about 27 years. PW4 is the father and PW5 is the brother of the deceased. They were all residing at West Saidapet, in Chennai City. The deceased was working in a leather company at Saidapet during the year 2010. The accused also hails from the same area. He was doing Vegetable vending business in the same area. In that way, the deceased was known to the accused.
(b) It is alleged that the accused and the deceased had fallen in love with each other for about six months. The accused and the deceased eloped without the knowledge of the family members of the deceased on 14.09.2010. On 20.09.2010 they returned home. But, PW4 was not willing to take her back into his familyfold. Therefore, he took the deceased and left her at the house of the accused. It is further alleged that on 21.09.2010, the accused took the deceased to Kumbakonam and went to a lodge at Kumbakonam known as V.K.S. Residency. PWs.1 and 2 were the managers of the said lodge. During the day time on 21.09.2010, PW2 was on duty in the lodge. The accused and the deceased addressed smartly and they told PW2 that they are husband and wife and they had come to Kumbakonam in connection with a business. They want to take a room in the said lodge for stay. Believing these words, PW2 made entry in the lodge register and allotted Room No.101 for them. The accused paid a sum of Rs.500/- as advance. Immediately, they proceeded to the room No.101 and stayed there.
(c) On 23.09.2010, the accused and the deceased wanted to allot a big room for them. Accordingly, around 4.30 p.m. on 23.09.2010, PW2 allotted Room No.103. The accused and the deceased shifted to the said room and stayed there. On 24.09.2010, PW1 was on duty as the Manager of the lodge. Around 10.00 a.m., the accused told the Room Boy as well as PW1 that he was proceeding to a saloon for saving his beard. Within a short-while, Room Boy found that there was a foul smell emanated from Room No.103. He informed PW1. Then, PW1 informed the Proprietor of the lodge (PW22). He also returned. Then, all of them went to Room No.103 and opened the same. To their shock, they found the deceased lying on the cart. There was frothemanating through her nose. By the side, an empty container with a smell of pesticide was found. She was dead. On the instruction of the proprietor of the lodge viz., PW22, PW1 made a complaint to the Police. The accused did not return.
(d) On the said complaint, a case was registered in Crime No.952 of 2010 for suspicious death on 24.09.2010 at 11.00 a.m. PW24 took up the case for investigation and he proceeded to the place of occurrence and prepared an observation mahazar and a rough sketch in the presence of PW10 and another witness. He recovered the pillow, the empty container and other materials from the Room No.103. He conducted inquest on the body of the deceased. During inquest, the identity of the deceased was not made known. He arranged for a photographer, took out photographs and made wide publicity in the Newspapers, in an attempt to ascertain the identity of the dead body. The body was kept in mortuary of the Government Hospital at Kumbakonam. On seeing the photograph of the dead body of the deceased in the Newspaper, PWs.4 and 5 rushed to Kumbakonam. On 26.09.2010 they identified the dead body of the deceased. Thereafter, PW24 forwarded the body for postmortem.
(e) PW16 Dr.Maheswari along with one Dr.Balaji, conducted autopsy on the body of the deceased on 26.09.2010 at 11.00 a.m. She found the following injuries on the body of the deceased:
External injuries : Multiple nail marks seen on both sides of neck 2 on the right side and 1 on the left side. Contusion seen around the neck. On dissecting the area underneath the contusion, the tissue was pale and (NC) like.
Internal Examination : Larynx, floths Trachea, Hyoid bone intact.
Ex.P13 is the Postmortem Certificate. They preserved the viscera organ for chemical examination. The report revealed that there was monochrotophos (pesticide poison) in the internal organ. The smear taken from the dead body was sent for chemical examination which revealed that there was no spermatozoa. Finally, PW16 opined that the deceased would appear to have died due to the effects of poisoning.
(f) On 30.09.2010, the accused surrendered before the learned Metropolitan Magistrate No.IX at Saidapet, Chennai. PW24 took the Police custody of the accused. On 07.10.2010, while in custody, he gave a voluntary confession, in which he stated that he had thrown the cell phone cover and cell phone, but he could not remember the place. Similarly, he told that he had pledged a bracelet in a pawn broker shop, but he could not identify the shop also. He further disclosed the place where he had purchased a towel and pesticide. In pursuance of the same, a covering bracelet was recovered under Ex.P7 mahazar. At the request of PW24, the material objects, such as pillow cover, bedspread, etc., were sent for chemical examination, which revealed that there was monochrotophos stains in some of the materials. During the course of investigation, the accused was put up for test identification parade, in which PWs.1 to 3 and others participants identified the accused. On completing the investigation, he laid charge sheet against the accused.
(g) Based on the above materials, the trial Court framed charges as detailed in the first paragraph of this judgement. He denied the same. In order to prove the charges, on the side of the prosecution, as many as 24 witnesses were examined, 19 documents and 9 material objects were marked.
(h) Out of the said witnesses, PW2, the Manager of the lodge, has stated that the accused and the deceased came on 21.09.2010 and stayed in Room No.101. He further stated that on 23.09.2010 they were shifted to Room No.103 as allotted by PW2. PW1 has stated that on 24.09.2010 the accused went away from the lodge informing that he is going to a local saloon for saving his beard. He has further stated that sometime thereafter, they found the dead body of the deceased. PW1 has also spoken about the complaint made by him. PW3 has stated that when he was working in the lodge, he found the accused and the deceased quarrelled in Room No.101. PWs.4 and 5, the father and brother respectively of the deceased, have stated about the earlier elopement of the deceased with the accused. They have further stated that they have identified the dead body.
(i) PWs.6 and 7 were stated that they found the accused and the deceased entered into the lodge on 21.09.2010. PW8 has stated that on 23.09.2010 at 6.30 p.m. the accused came and purchased the medicine from the shop. PW9 has turned hostile and he has not stated anything about the occurrence. PW10 has spoken about the preparation of observation mahazar and rough sketch and recovery of material objects from the place of occurrence. PW11 has spoken about the alleged confession made by the accused on 07.10.2010 while in police custody. PW12 has spoken about the photographs taken at the place of occurrence, as directed by PW24. PW13 has stated that he signed in the confession statement which was already prepared by the Police. He has not stated anything about the confession made by the accused and the consequential recovery.
(j) PWs.14 and 15, Scientific Assistants in the Regional Forensic Lab, have spoken about the chemical examination conducted on the material objects and detection of monochrotophos in some of the material objects. PW16 has spoken about the postmortem conducted and her final opinion regarding the cause of the death. PW17 has stated that he took the dead body and handed over the same to the Doctor for postmortem as directed by PW24. PW18 has stated that he handed over the FIR to the learned Magistrate, but he has not stated about the time at which he handed over the same to the learned Magistrate. PW19 has stated that he forwarded the material objects to the Forensic Lab for chemical examination as directed by the learned Magistrate.
(k) PW20, the learned II-Additional District Munsif, Kumbakonam, has spoken about the test identification parade conducted. According to her, PWs.1 to 3 correctly identified the accused. She has further stated that the accused told her at that time that he had fallen in love with the deceased and they came together and stayed in the lodge. He has further stated that since there was stiff objection for their proposed marriage from the family members, they decided to commit suicide. He has further stated that when he was sleeping, without his knowledge, the deceased consumed poison on 24.09.2010. When he woke up, he found the deceased dead. Therefore, he went to Chennai and surrendered before the Court. PW21 has stated that on 15.09.2010, he registered a case on the complaint of PW4 in respect of the elopement of the deceased with the accused. PW22 is the proprietor of the lodge. He has stated that on 24.09.2010 PW1 informed him about the occurrence. PW23 has spoken about the registration of the present case. PW24 has spoken about the investigation done and the final report filed.
(l) When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., he denied the same as false. However, he did not choose to examine any witness nor to mark any document on his side. The defence of the accused was total denial. Having considered all the above, the trial Court convicted him, as detailed in the first paragraph of this judgment. That is how he is before this Court with this appeal.
3. We have heard the learned counsel for the appellant/accused and the learned Additional Public Prosecutor appearing for the respondent and we have also perused the records carefully.
4. 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. Keeping this broad principle in mind, let us now analyse the circumstances projected by the prosecution.
5. From the evidence of PWs.1 to 3, it has been proved that the deceased was staying in the lodge in question from 21.09.2010 onwards. The dead body of the deceased was found around 10.00 a.m. On 24.09.2010. The chemical examination conducted on the viscera organ has proved that there was poison in the internal organ. According to the medical examination, the death was due to the said poison viz., monochrotophos, which is a pesticide. There is no controversy over the said fact. From these evidences, it has been clearly established that the deceased died due to poisoning some time before 10.00 a.m. On 24.09.2010.
6. It is the case of the prosecution that the accused forced the deceased to consume poison. In other wards, according to the charge, the accused held the deceased, tied her legs and hands, and poured the poison into her mouth and made her to consume. Thus, it is the charge that the accused had caused the death by administering the poison. In order to prove the said fact, absolutely, there is no evidence. Had it been true that the hands and legs were tied by the accused. There would have been some marks of violence on the legs and hands. The deceased would have certainly resisted such conduct on the part of the accused, in which case there would have been at least some minor injuries on her lips. But, no such injury whatsoever was found either on her lips or on her hands or legs. There were, of-course, nail marks found on the neck. The possibility of the nail marks having been caused by herself while bathing, etc. cannot be ruled out. This would clearly go to prove that the deceased had taken poison on her own and it was not administered on her by any one.
7. The accused, at the time when he put up for test identification parade, has stated to the learned Magistrate that he took the deceased to Kumbakonam and stayed with her with a view to marry her. PWs.4 and 5, the father and brother respectively of the deceased have stated that the accused and the deceased eloped on 14.09.2010 and returned only on 20.09.2010. PWs.4 and 5 were not willing to take the deceased into family fold because of her conduct. Therefore, PW4 took her and left her at the house of the accused on 20.09.2010. It was only thereafter the accused had taken the deceased to Kumbakonam on 21.09.2010 and stayed in the lodge. There is no dispute over the said fact. The accused has further stated that while in the lodge, he and the deceased were highly depressed, because there was stiff objection from either family for their proposed marriage. He further told the learned Magistrate that because of the said depression both of them decided to commit suicide.
8. The accused has further stated to the learned Magistrate that he purchased the pesticide and kept it in the room with an idea to consume it later together with the deceased. But, when he was sleeping, without his knowledge, the deceased consumed poison. On 24.09.2010 in the morning when he woke up, he found the deceased lying dead having consumed poison. Out of fear, he left the lodge and went to Chennai and surrendered before the Court. This is the earliest explanation offered by the accused. There is no reason to doubt the veracity of the said explanation. Even PW1 has stated that the accused on 24.09.2010 in the morning, while leaving, told him that he is going to a saloon shop for saving his beard. Thus, the accused left the lodge only on 24.09.2010 which would further probabilise the defence that after knowing the death of the deceased, he left the place. The conduct of the accused in going over to Chennai and immediately surrendering before the Court would also support the said defence of the accused. Thus, the alternative theory probabilised by the accused that the deceased consumed poison in depression due to the stiff objection from the family members for their marriage and died due to poisoning cannot be ruled out.
9. As we have already pointed out, in the case of this nature, if an alternative theory which is consistent with the guilt of the accused is probable, then the accused is entitled for acquittal. It is stated that a bracelet was recovered at the instance of the accused, but the same has not been identified to be that of the deceased. Since the prosecution has failed to prove the circumstances beyond reasonable doubts, we are inclined to acquit the accused.
10. In the result, this Criminal Appeal is allowed and the conviction and sentence imposed on the appellant in S.C.No.24 of 2012 is set aside. He is acquitted from the charge. Fine amount, if any, paid by the appellant shall be refunded.