(Prayer: This Criminal Appeal is filed under Section 374(2) of Cr.P.C to set aside the Judgment passed by the II Additional District and Sessions Judge, Thanjavur in S.C.No.50 of 2012 dated 28.04.2015 and acquit the appellant from the charges.)
M.V. Muralidaran, J.
1. The appellant is the sole accused in S.C.No.50 of 2012 on the file of the II Additional District and Sessions Judge, Thanjavur. The Trial Court framed charges under Sections 302 and 397 IPC against this appellant/accused.
2. The Trial Court, by Judgment, dated 28.04.2015 convicted the appellant/accused under Section 302 IPC for life imprisonment and to pay a fine of Rs.1,000/- in default to under go Simple Imprisonment for 3 months and convicted for offence under Section 379 IPC for one year Rigorous Imprisonment and the appellant/accused shall undergone the above sentences concurrently. Challenging the said conviction and sentence passed against him, the present criminal appeal has been filed by the appellant/accused.
3. The case of the prosecution is that the accused Balamurugan S/o Govindan, residing at South Street, Olapaddy village, has murdered one Sathya, who is the wife of one Thirunavukkarasu of Ullikadai Village, they got married on 31.08.2009. The appellant/accused is belonging to Olapaddy Village of Kunnam Taluk, Perambalur District and is working as Lorry Driver at Ariyalur, MRS Lorry Transport. His friend one Packiaraj became the friend of deceased Sathiya. Through the said Packiaraj, the accused Balamurugan has contacted Sathiya's husband and developed thick contact with Sathiya. Then he purchased a Vodafone Sim Card bearing No.7939410898 along with G Five Company phone and handed over the same to Sathiya. Thereafter, they became very close for the past 6 months.
4. After developing friendship, the accused Balamurugan along with Sathiya stayed at a Lodge at Ariyalur and had intercourse. The accused demanded Sathiya to marry and live with him, for which, the deceased Sathiya refused. On 26.10.2010, the accused with the intention to marry her, brought the said Sathiya to Ariyalur and stayed therein in Jeyanthi Lodge. Then on the next day, he proposed to bring her to his village, for which, the said Sathiya refused. Hence, on 27.10.2010 at about 5.00 p.m., the accused Balamurugan tried to bring her to Olapaddy Village by a TATA Sumo Car bearing registration No.TN 32 D 6541. However, the said Sathiya refused and was adamant to return to her husband's house. The abovesaid car belong to one Sengamalam and was driven by Sengamalam himself. While they were travelling in the Thanjavur Thiruvaiyaru Road near Manakkarambai at about 7.00 p.m., the said Sathiya got down out of Car and sat on the channel at Palakkattai village. The said Sathiya started walking on the bund of the channel, thereupon, the accused with an intention to kill her that she refused to live with him and with an intention to disallow her to live with any other person, the accused knocked down the said Sathiya in the channel, with her saree around her neck and strangulated her. Then he dipped the head of the Sathiya into the channel that was filled in with water and mud. Then, he tied Sathiya's hands and legs and then murdered her. After the death of the said Sathiya, the accused taken away the Thali, ear stead and cell phone of said Sathiya. Hence, the accused has been charged under Section 302 and 397 of IPC.
5. After filing of the charge sheet before the learned Judicial Magistrate, Thiruvaiyaru in PRC No.21 of 2011, the case was transferred to the learned II Additional District and Sessions Judge, Thanjavur and the same was numbered in S.C.No.50 of 2012. In this case, 27 witnesses were examined as prosecution side witnesses and 31 exhibits were marked on the side of the prosecution and 7 material objects were produced before the Trial Court. There was no witness and exhibit filed on the side of the accused.
6. In this case, P.W.1 Jeyanthi, Village Administrative Officer of Manakkarambai Village has deposed that on 28.10.2010 at 7.45 a.m., while she was in her office, her Village Assistant one Chakkaravathi informed her that a dead body of a female is found within the jurisdiction of their village. Thereafter, she went to the spot along with said Chakkaravarthi and saw a dead body, therein, then, she retaining the said Chakkaravarthi near the dead body, she went to the Naducauvery police station and gave a written complaint Ex.P.1. On receipt of the complaint, the police came to the spot, the body was taken for postmortem. P.W.2 Kailasam, who is the President of the Manakkarambai Village and P.W.3 Arokiadass, P.W.4 Mahendran, P.W.5 Raja, P.W.6 Anbazhagan, P.W.7 Jeyabal deposed in their evidence that they saw the dead body in the Manakkarambai village. Out of the said witnesses P.W.4 Mahendran P.W.5 Raja are the attesting witnesses in the Observation Mahazar and Seizure Mahazar.
7. P.W.8 Thirunavukkarasu, the husband of the deceased Sathiya has deposed that the marriage between him and deceased Sathya was solemnised on 31.08.2009. One year after their marriage, she wants to go to her parents house. After consciously for two days, he contacted her mother-in-law's house over mobile phone, but he could not receive the message, as it was out of coverage. Immediately for searching his wife, he went to his father-in-law's house. Thereafter, they have decided to gave a complaint to the police. At that time, his mother-in-law show a newspaper, in which, the murdered women photograph was published and it appeared to be the wife of P.W.8 On seeing the same, they went to the Thiruvaiyaru Police Station. Then they went to the Thanjavur Medical College hospital and identified the dead body of his wife. P.W.8, Thirunavukkarasu also deposed that while his wife was going to her parents house she was wearing gold Thali with two gundus, mango kasu, two ear stead and was having one cell phone G5 branded with black and red colour. While he was examined in the said case, he identified the abovesaid cell phone and jewels in the Court.
8. P.W.9 Mahalakshmi, who is the mother of the deceased Sathiya, has stated that the accused and the deceased Sathiya having contact and the accused used to talk with Sathiya through mobile phone and the said Mahalakshmi identified the accused in the Court. She further stated that two days before her death, the deceased proposed to come to her village. P.W.9 informed the Court that she came to know about the death of her daughter through newspaper.
9. P.W.10 Rajendran, father of the deceased Sathiya has stated that while his son-in-law P.W.8 Thirunavukkarasu came to his house in search of P.W.10's daughter, they all together searched her and was unable to find her. Later, they came to know about the death news through newspaper.
10. P.W.11 Seetha, who is the sister of the deceased Sathiya, has stated that her sister Sathiya told her that she proposed to come to Vilangudi and while she was standing at Ariyalur bus stand, the accused Balamurugan called Sathiya and taken her along with him. Out of fear she could not disclose the same about to her parents and she came to know about the death of her sister through newspaper.
11. P.W.12 Packiaraj, has stated that he was working as a Lorry Driver and the accused was working along with him. But while he was examined, he turned hostile. P.W.13 Rajarajan, Village Administrative Officer of Thiruvaiyaru West, has stated that on 02.11.2010, the Sub-Inspector of Police Thiruvaiyaru informed him about the whereabouts of the accused Balamurugan and asked him to come to bus stand. The witness Rajarajan along with his Village Assistant went to the Thiruvaiyaru Bus Stand and the Sub-Inspector arrested the accused Balamurugan therein and after the arrest, while on enquiry, the accused confessed and the same was recorded, in which, the witness Rajarajan attested as a witness. Thereafter, P.W.13 Rajarajan along with police, went to Ariyalur and enquired at Jeyanthi Lodge and obtained a signature in the Observation Mahazar. In other aspect, he turned hostile. P.W.14 Jeyaseelan has stated that he was called by Naducauvery Police Inspector and as per his instruction took a photograph of the dead body and has given to the police station. P.W.16 Manoharan has stated that he is a money lender at Thittakudi conducting the business in the name of Arun Bankers. He deposed that the Naducauvery police on showing a pledged receipt and asked to return the pledged gold ornaments mentioned in the receipt. Accordingly, he returned those jewels. P.W.16 identified the M.Os. 1 to 5 in the Court. P.W.17 Sengamalam was examined on the side of the prosecution for the purpose of proving that the deceased Sathiya along with accused was travelling in P.W.17's car. But in the Court, while he was examined, he completely turned hostile.
12. P.W.18 Umapathy, who is the Sub-Inspector of Police, has stated that he sent the dead body of a female to Thiruvaiyaru Hospital and handed over the same to the mortuary of Thanjavur Medical College Hospital. P.W.19 Palaniammal, Sub-Inspector of Police has stated that while she was working as a Sub-Inspector of Police at Naducauvery police station on 28.05.2010, Manakkarambai Village Administrative Officer Jeyanthi gave a written complaint to her and was registered in First Information Report in Crime No.210 of 2010 under Section 302 IPC. P.W.20 Rengasamy has stated that while he was working at Thirukattupalli Police Station and in charge of Naducauvery police station, he took the crime No.210 of 2010 for investigation and seized in the presence of same a pair black of rubber chapel. Thereafter, he examined Jeyanthi, Village Administrative Officer, Chakkaravarthi, Village Assistant, Kailasam, Arokiadass. Thereafter, he seized the jacket, in skirt, saree through Form-95. Thereafter, the dead body was handed over to the Head Constable Beevi for postmortem. P.W.21 Neelakanda Pillai, who is the Assistant Director of Regional Forensic Sciences Laboratory at Madurai, has returned the documents, since no admitted signatures was sent. P.W.22 Anbalagan, who was working as an Office boy in Airyalur Jeyanthi lodge has stated that in the year 2010, the accused came to the lodge and asked for a room and a lady was accompanying him describing herself as wife. P.W.22 assigned a room however, the next day when the accused vacated, he was not on duty. Thereafter, P.W.22 came to know about the death of that lady through police and he identified the dead body in the photograph was the lady accompanied the accused while taking room. P.W.23 Gomathi, who is the expert witness, has stated about the signature comparison made by her along with the signature obtained from the accused. P.W.24 Ramalingam, Judicial Magistrate has deposed about the identification parade conducted by him and about his report. P.W.25 Tamilselvi has stated that she was working in the Arun Bankers from September 2010 to December 2010. In the abovesaid Arun Bankers, on 28.10.2010 at about 11.00 a.m, the accused pledged thali, gundu, ear stead, mango kasu weighing about one sovereign and they gave Rs.8,000/-, for which, they issued receipt after obtaining signature, after 5 or 6 days Naducauvery police along with said Balamurugan came and enquired and asked to return the jewels. Hence, they were retuned viz., M.Os.1 to 5. P.W.15 Dr.Ravindran, who conducted postmortem of the dead body of the deceased Sathiya and gave an opinion that the deceased Sathiya died due to strangulation and further deposed that body both the internal and external injuries were found.
13. P.W.26 Subash Chandra Bose, Investigating Officer, has stated that on 28.10.2010 he took the investigation in Crime No.212 of 2010 and investigated about the dead person and enquired in the nearby villages by showing the photo of the deceased Sathiya at that time while enquiry of Anbalagan and Jeyabal belongs to Kandiyur village stated that on 27.10.2010 at about 7.15 p.m, the deceased and 25 years old male were sitting on the channel and they quarrelled each other. Then, he examined the abovesaid witnesses. Thereafter, P.W.26 made arrangements for the publication of the dead body photograph in the newspaper. On 30.10.2010 on seeing the photograph in the newspaper the husband of the deceased Sathiya, namely, Thirunavukkarasu and her father Rajendran and mother Mahalakshmi, sister Geetha and relatives Mahalingam came to Naducauvery police station and they identified as their daughter.
14. P.W.26 after investigation, collected all the call details of the cell phone number of the deceased Sathiya and the accused. When P.W.26 enquired the cell number 9843752489, one Packiaraj, who is lorry driver, informed the P.W.26 about the cell number 7639726829 belong to his friend Balamurugan and disclosed about the illegal relationship between the accused Balamurugan and deceased Sathiya and also disclosed about the murder committed by the accused Balamurugan. On 02.11.2010 on secret information the accused came to Thiruvaiyaru bus stand and in the presence of Village Administrative Officer and his Assistant Rajendran, Ravichandran respectively, arrested the accused and on enquiry, he gave confession and it was also recorded in the presence of the abovesaid witnesses.
15. On the evidence taken by the Trial Court, namely, II Additional District and Sessions Judge, Thanjavur, the learned Judge came to the conclusion that there is no direct evidence on the death of the Sathiya and held that every fact came to light from the accused's confession. So his confession leads to recovery of Ex.P.25 to Ex.P.31.
16. The learned Judge pointed out that the admitted portion of confession of the accused is clearly admissible under Section 27 of the Indian Evidence Act. The accused had stayed with said Sathiya at Ariyalur Jeyanthi Lodge and the room was provided by P.W.22 and he has also identified the accused. Thereafter, P.W.16 Manoharan, who is the owner of the Pawn Brokers shop at Thittakudy, handed over the pledged ornaments to the police. P.W.24 has conducted identification parade for the witnesses, namely, P.W.8, Thirunavukkarasu, P.W.22 Anbazhagan, P.W.11 Seetha, P.W.16 Manoharan and all the above 4 witnesses have identified the accused in the Test Identification Parade.
17. In the abovesaid circumstances, though there was no direct eyewitness, the learned Trial Judge convicted the appellant/accused for the offences under Sections 302 and 397 IPC. Against the said conviction, the present appeal has been filed.
18. We heard Mr.M.Karunanidhi, the learned counsel for the appellant/accused and Mr.K.S.Duraipandian, the learned Assistant Public Prosecutor appearing for the respondent and also perused the materials carefully.
19. The learned Judge, convicted the appellant on the evidence given by P.W.1 to P.W.27 and the Exhibits in Ex.P.1 to Ex.P.31 and material objects in M.Os.1 to 7 and oral and documentary by stating that the charges under Sections 302 and 379 IPC against the accused are proved beyond reasonable doubt and convicted the accused. The learned Trial Judge has considered the prosecution case as it was found alleged to be proved by the prosecution through the abovesaid witnesses and oral and documentary evidences. The appellant/accused stated that regarding written complaint is concerned, the legal flaw pointed out by the defence side already discussed and the entire prosecution story based upon the circumstantial evidences and there is no direct eyewitness for the crime while relying upon the circumstantial evidences, how the circumstantial evidence have to be appreciated is narrated in the following citation referred by the prosecution side which is reported in 2006(2) MWN (Cr.) 81 (DB) (State vs. R.Vinod Kumar @ Vinod and others). The relevant portion of the said Judgment is extracted hereunder:-
5. It is well settled 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.
6. 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.
20. The learned Judge failed to consider that the alleged confession given by the accused to the police officer is inadmissible in evidence but the learned Judge has gone to believe the alleged confession and has incorporated in the judgment. It is totally against the order of this Court and the Hon'ble Apex Court. The learned Judge failed to consider that the last seen theory has not been proved by the prosecution through P.W.6 Anbalagan and P.W.7 Jayabal. The learned Judge failed to consider that the said theory of the prosecution that the accused was introduced to the deceased by P.W.8 Thirunavukarasu but the prosecution has not at all been proved through the evidence of P.W.8 of any other witnesses.
21. We have also seen that the learned Judge miserably failed to consider that P.W.1 Jayanthi, Village Administrative Officer has lodged a complaint without registering it under Section 174 Cr.P.C., straightaway registered under Section 302 of IPC. Further, major point urged by the appellant/accused is that the said Chakaravarthi, Village Assistant cited as L.W.2 has not at all been examined. Since the prosecution puts up a case that only this witness saw the dead body first and informed to P,W.1, the Village Administrative Officer, the non-examination of this witness is fatal to the prosecution.
22. The next point urged by the appellant/accused in this case is that the theory of prosecution that the accused and the deceased were travelling by a TATA Sumo belonging to P.W.17 Sengamalam but there is no reference to the place of occurrence and it has not been proved through P.W.17. The learned Judge also not considered that the alleged adultery between the accused and deceased is being unproved through any of the witnesses especially through P.W.8 or P.W.9, P.W.10 and P.W.11.
23. The other point note worthy in this case is that for conducting identification parade by the Magistrate, summons were being issued through police. Normally the Investigating Officer never go to serve summons. But in this case, the Investigation Officer has directly served summons for identification parade.
24. The appellant/accused also raised a ground stating that in this case, there is no eyewitness for the occurrence and relied circumstantial evidence, there is no motive for the accused to kill the deceased and motive not proved and chain of circumstances is also not proved, but the learned Judge says that with regard to motive is concerned, the accused himself narrated for the same. In support of said contention, the appellant/accused has produced a Judgment in (2014) ACR 885 (Sangili vs. State of Tamil Nadu).
25. The learned Judge also failed to consider that P.W.24 has not followed the procedure for taking 164 statement or for conducting identification parade and the said 164 statement and identification parade has not been proved through any of the prosecution witnesses in support of the evidence of P.W.24 and the prosecution has established the motive for the occurrence that the accused wanted to marry the deceased. Apart from this, the confession statement given by the appellant/accused has not at all proved by the police officer, which is admitted in the evidence. The prosecution has failed to note that in strangulation case, the preliminary duty of the Investigating Officer to lift the finger prints of the accused, which were affixed around the neck of the deceased. In this case, the prosecution has not lift the finger prints of the accused on the body of the deceased. So it is fatal to the case of the prosecution. In support of his argument, the learned counsel for the appellant/accused has produced a judgment reported in2006 CRI.L.R 1825 (State of Karnataka vs. Murulasiddaiha). The relevant portion of the said Judgment is extracted hereunder:-
Homicidal death by strangulation - Finger prints or marks found on neck of deceased can be strong circumstantial evidence available for prosecution No finger print expert was available Therefore, I.O could not get finger prints or marks found on neck of deceased developed Government recommended to tone up investigating agency by applying and developing forensic science in filed of investigation and crime detention.
26. As per above Judgment, it is very clear that lifting of finger prints in strangulation case is a strong circumstantial evidence available for the prosecution. But in this case, the Investigation Officer failed to do so and depends upon the oral evidence of the relatives.
27. In the result, the Criminal Appeal is allowed by setting aside the judgment and conviction and sentence passed against the appellant by the Trial Court. The fine amount if any paid shall be refunded to the appellant/accused.