(Prayer: Criminal Appeal filed under Section 374(2) Cr.P.C., against the judgment of Additional District and Sessions Judge, FTC-IV, Chennai in S.C.No.205 of 2010 dated 13.03.2012.)
N. Sathish Kumar, J.
The appellant/defacto complainant, who is the husband of the deceased/Jayalakshmi has approached this Court challenging the judgment and decree of the learned Additional District and Sessions Judge, FTC-IV, Chennai in S.C.No.205/2010 dated 13.03.2012 vide which the Court had acquitted the accused on the grounds that the prosecution has failed to bring home the guilt of the accused and therefore, the accused are entitled for the benefits of doubt.
2. The case of the prosecution is as follows :
2.1. The deceased is the wife of P.W.1. PW1 and the deceased had three sons. Their sons were residing abroad. PW1 and the deceased were residing separately in 35/65, CIT Nagar, 3rd Main Road, Plot No.E3, Sri Devi Apartments, Nandanam, Chennai – 35. On the date of occurrence, 22.11.2009, PW1 left the house and went to Chennai Guindy Race. On his return at 5 pm, he found that the house was locked from the outside, he thought his wife would have gone to the neighbourers house, however, on enquiry he found that the deceased did not go to the neighbouring house and later, when he entered the house, he found his wife was lying with bleeding injuries and four bangles, one gold chain and one black beed chain were missing. Immediately on hearing the cry of PW1, one Daisy informed the police through phone and PW1 gave a complaint under Ex.P1 on the same day. Later, he had identified the accused as well as M.O.1 to M.O.4 at the police station on 27.11.2009. PW2 is the Scientific Officer rushed to the place of occurrence and collected the objects two blood stained socks, two pillow covers, blood stained spartek and also recovered the three hair strands found in the hands of the deceased.
2.2. One N.S.Kumar/PW12 took up the investigation and went to the place of occurrence and prepared observation mahazaar under Ex.P2 in the presence of PW4 and prepared rough sketch under Ex.P22 and conducted inquest on the dead body and prepared inquest report under Ex.P23 and sent the dead body for autopsy. He recovered the knife with wooden handle marked as M.O.8, the knife without handle is M.O.9. The slippers are M.O.10. The blood stained tiles are M.O.11 and the sample tiles are MO.12.
The recovery mahazar is Ex.P3. PW3, head constable handed over the dead body at Government Royapettah Hospital mortuary and collected dresses of the deceased in M.O.5 to M.O.7 and sent to the Court under Form 95. PW4 is the tea stall owner came to know that a lady was lying dead in the third floor of Devi Apartment. In the presence of PW5, A1 and A2 were arrested on 26.11.2009. The admitted portion in the confession statement of A1 is Ex.P6 and A2 is Ex.P7. In pursuance of Exs.P6 & P7, M.O.1 and M.O.2 were recovered from PW6/Ashok Kumar, Pawn Broker under seizure mahazar in Ex.P8. Later from the accused house, A3 handed over Rs.15000/- under Ex.P9 and a black beads gold chain and besides, A1 handed over Rs.16,500/- and M.O.13 and M.O.14 were handed over. The recovery mahazar from A3 is Ex.P10 and from A1 is Ex.P11. The recovery mahazar is Ex.P12. Rs.16,500/- is M.O.16, Rs.15,000/- is M.O.17 and Rs.5000/- is M.O.18. PW6 is owning a pawn shop, according to him, on 22.11.2009, A1 came to his shop and pledged 3 bangles and chain about 841/2 grams for Rs.92000/-. Later, police came along with A1 to his shop and recovered the jewels. The pledge slip is Ex.P13. PW7 is also a pawn shop owner, according to him, A2 pledged a 14 gram bangle on 22.11.2009 and the original receipt was given to Madhan and the same was recovered. The carbon copy of the receipt was given from book and is marked as Ex.P14.
2.3. PW10, casualty doctor stated that on 22.11.2009 at 9.20 pm, the head constable brought the dead body of the deceased. PW8, Assistant Director, Forensic Science Department examined items 1 to 15 and issued Serology Report opining that excepting item No.7, all contained blood and the item no.7, three hair strands of human were found and marked under Ex.P20 and also another Serology Report under Ex.P17 opining that it belongs to blood group 'A'. PW8, Assistant Director further examined the viscera and issued Toxicology Report under Ex.16 stating that there is no poison detected and also issued Serology Report under Ex.P17. PW9/Medical Officer attached to the Government Royapettah Hospital, Chennai conducted autopsy and found the following injuries and issued Postmortem certificate under Ex.P18:-
1) Oblique cut injury 3x0.5x1cm over right side of lower jaw.
The angles are acute and the margins are clean cut.
2) Transverse cut injury 11x1x2cms over mid and left side of undersurface of lower jaw 3cms below the chin.
3) Transverse gaping cut injury 12x1 to 3 cms x Cavity deep over front, adjacent right and Left side of neck at the level of lower part of thyroid cartilage exposing the several soft tissues including the Larynx blood vessels and Nerves.
4) Oblique gaping cut injury 12x1 to 3x2 cms over root of left side of neck.The inner end of which is 2 cms above the inner end of left clavicle exposing the severed soft tissues of that region.
5) Transverse superficial cut injury 3x0.5x0.5cm over front of outer aspect of upper part of right side of neck. The inner end of which is 3cms below the clavicle.
6) Oblique superficial cut injury 4.5x0.5x0.5cm, 1 cm below the injury No 5.
7) Superficial cut injury 5x0.5x0.5cm over front of upper part of the right side of chest 4cms below injury No 6
8) Transverse cut injury 3.5x0.8x0.6cms over front of left shoulder and adjacent chest.
9) Transverse cut injury 7x1x0.5cm over front of upper part of left side of chest 7cms below middle third of left clavicle.
10) Transverse cut injury 19x1 to 2cmsx4.5cms over outer aspect, adjacent front and back of middle third of left thigh.
11) Vertical scratch abrasion 3x0.1 cm over inner aspect of right elbow and adjacent arm, 6cms above the previous injury No.11
12) Vertical scratch abrasion 2.5x0.1 cms over inner aspect of middle third of left arm, 6 cms above the previous injury No.11
The injuries are fresh and antemortem in nature ON DISSECTION
Bruising of scalp 8x5.5cms over top of head, 6x3.5cms over mid back of head and 5x3 cms over left side of head made out.
5x3cms over left side of head made out Cranial vault and meninges Intact Brain pale.
Hyoid bone Intact
Fracture of Thyroid cartilage made out along midline
Severing of Larynx seen at the level between Thyroid and cricoid cartilages corresponding to external injury No 3. Clotted blood seen over the mucosal surface or Trachea and Principle bronchi
Severing of major blood vessels of left side of neck seen corresponding to external injury No.3 and 4.
Thoraic cage Intact
Heart normal in size. Chamber contained scant fluid blood. Lungs. Pale
Stomach contained 450gms well discernible food material. Mucosa pale.
Liver, Spleen and Kidneys. Pale Intestines distended with gas Bladder empty
Uterus Empty
Pelvis and Spinal column Intact
and gave opinion opining that the deceased would appear to have died due to cut throat injuries. PW12 continued the investigation, Special Investigation Officer one Gurusamy arrested A1 and A2 in connection with the Cr.No.654 of 2009 under Sections 341, 397, 336, 427 & 506(ii) of IPC and pursuant to their confession, M.O.1 to M.O.4 were recovered from where they were pledged and also seized the shirts and pants from their house, besides cash and after examining the reports of the medical officer, scientific officer and other witnesses finally laid the final report against the accused 1 and 2 under Sections 450, 302 & 380 of IPC and the third accused under Section 302 read with 109 of IPC in P.R.C.No.21 of 2010 before the IX Metropolitan Magistrate, Saidapet.
2.4. On the appearance of A1 to A3, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Principal District Sessions Court. The Principal District Sessions Court had made over this case to the learned Additional District and Sessions Judge (Fast Track Court No.IV), Chennai in S.C.No.205 of 2010, for trial.
2.5. The trial Court framed the charges against the accused 1 and 2 for the offences under Sections 450, 302 & 380 of IPC and against the third accused for the offences under Sections 302 read with 109 of IPC. When questioned, the accused pleaded “not guilty”.
2.6. To prove the guilt of the accused, the prosecution examined P.W.1 to P.W.12, marked Exs.P1 to P23 and produced M.Os.1 to 18. When the accused were questioned under Section 313 Cr.P.C. about the incriminating circumstances appearing against them, they denied the same. On behalf of the accused, no witness was examined and no exhibit was marked.
2.7. The trial Court, after having considered the oral and documentary evidence, found that the prosecution had miserably failed to prove the charges, and as a result, the accused were acquitted and set at liberty. Assailing the said judgment and decree, the P.W.1/defacto complainant/husband of the deceased has preferred the instant Criminal Appeal.
3. The learned Legal Aid Counsel for the appellant submitted that the PW1 has clearly identified the material objects, particularly, M.O.1 to M.O.4s and those material objects belong to the deceased and the same has been recovered from the accused within a short span of period. Therefore, when the accused has not accounted for their possession, the Trial Court to have believed their recovery. Further, would submit that the Trial has not properly appreciated the entire evidence under Exs.P6 & P7, the admitted portion of confession of the accused 1 and 2 which led to the seizure has also been clearly established, therefore, would submit that the Trial Court has not properly appreciated the evidence and instead of acquitting the accused, ought to have convicted the accused. Hence, seeks for allowing this criminal appeal.
4. The learned Government Advocate (Crl.Side) would reiterate the contentions of the learned counsel for the appellant.
5. In light of the above, now, the following point arise for consideration in this appeal is as follows:-
(i) whether the prosecution has proved its case beyond all reasonable doubts?
(ii) Whether the Trial Court was right in acquitting the accused?
Points (i) & (ii)
6. The case is based on circumstantial evidences. In the case of circumstantial evidence, the chain of events needs to be so established that the court has no option but to come to one and only one conclusion i.e. the guilt of the accused person. If an iota of doubt creeps in at any stage in the sequence of events, the benefit thereof should flow to the accused. Mere suspicion alone, irrespective of the fact that it is very strong, cannot be a substitute for a proof. The chain of circumstances must be so complete that they lead to only one conclusion that is the guilt of the accused.
7. In the light of the above settled propositions, let us proceed with the findings rendered by the Trial Court. The following are the circumstances which are relied upon by the prosecution.
(a) the alleged loan said to have been availed by one of the accused from the deceased.
(b) seizure of M.O.1 to M.O.4 from the accused and
(c) the recovery of the blood stain dresses from the accused and also the place of occurrence.
8. When the entire evidences carefully analyzed, particularly, Ex.P1, when seen no doubt the complaint has been lodged on the same day by the PW1 who is the husband of the deceased. Unfortunately, the deceased had succumbed to injuries by violence. The complaint though has been filed immediately stating that 15 sovereign of jewels worn by the deceased including the four bangles and one chain were missing, the evidence of PW1 that he has identified only M.O.1 to M.O.4. Though the prosecution that these material objects have been recovered, it is relevant to note that, in fact, these accused were arrested in connection with some other crime, therefore, the alleged recovery appears to have been made from the accused. The prosecution has mainly relied upon the seizure said to have been made from PW6 and PW7, Exs.P13 and P14 alleged to have been recovered from PW6 and PW7, the prosecution has not even made any attempt examine the signatures found in these receipts with the aid of the handwriting expert. Further, Ex.P13 appears to be original. Normally, original receipt will be with the accused and only the copies would have been retained by the shop owner, in such case, seizing the original from the shop owner is highly improbable. Similarly, the receipt with regard to Ex.P14 is only a carbon copy and no attempts whatsoever made to prove the signature of the accused and further, it is also to be noted that in the carbon copy, the date is also corrected, in fact, it is made as if 22.11.2009 and that correction has been made separately not while issuing the original receipt. The alleged signatures of the accused found in Exs.P13 and P14 have not been established.
9. Further, there is no reference whatsoever either in the seizure mahazar prepared by the Investigating Officer about the Exs.P13 and P14 and absolutely, there is no whisper whatsoever made as to how these receipts came into the possession of the Investigating Officer. Further, PW6 in his evidence also never stated that how Ex.P13 seized from him. Similarly, PW7 though would submit that original receipt was given to one of the accused, absolutely, there is no whisper about the same by the Investigating Officer. Though normally presumption with regard to stolen properties will arise when it has not been accounted for the accused, but the fact remains that when the seizure itself is doubtful, the Court cannot apply presumption mechanically.
10. It is further to be noted that admittedly occurrence took place in the apartment in the year 2009, no attempts whatsoever made even to examine any of the neighbour, particularly, it is specific case of the prosecution that two of the accused have guarded outside particularly in the apartment. When a stranger comes to a apartment, it is the normal conduct of any owner to notice the same, but the same has not been noticed by any of the neighbourers, particularly, in an apartment. Even in the place of occurrence, two knives were seized by the Investigating Officer under Ex.P3 mahazar which is also marked as M.O.8 and M.O.9 and these two knives were also found with blood stains, besides three hair strands of human also seized from the hands of the deceased. No attempts whatsoever made by the Investigating Officer to find out the DNA from the hair samples collected from the place of occurrence. Further, no attempt whatsoever made to lift the fingerprints from the entire house despite the fact that two knives were very much left in the house and seized with blood stains, these facts also creates serious doubt about the entire prosecution.
11. Best evidence to connect the accused in this case would be the scientific evidence. Admittedly, the traces of human hair is very much found that too in the hands of the deceased and that itself clearly indicates that there was violence before she succumbed to injuries. In fact, she struggled with perpetrator, in that process only, the deceased hands came into the contact with the hair of the perpetrator. No attempts whatsoever made to take any blood sample from the accused to connect with the human hair collected from the place of occurrence. That apart, fingerprints have not been lifted even from the two knives, M.O.8 and M.O.9 which were said to have been collected from the place of occurrence. These are all the serious doubts existing and vital gap is very much present in the prosecution case. Therefore, merely on the basis that PW1 has identified the jewels stated to have been worn by the deceased and is said to have been recovered from the accused, we are of the view that one circumstance itself is not sufficient to presume the guilt of the accused.
12. When the case is based on the circumstantial evidence, each one of the circumstances has to be established, there should not be any gap among the circumstances. Even one of the chain gets snapped, prosecution will fail. The arrest of the accused are also doubtful, the Investigating Officer has not arrested the accused and they were allegedly handed over by the another Investigating Officer, who has allegedly arrested the accused in some other case. The person who arrested the accused was not examined. All these facts clearly indicate that the prosecution has not established any of the circumstances. In view thereof, we are of the opinion that the prosecution has failed to establish the guilt of the accused beyond all reasonable doubt and therefore, this Court does not find any merits in this appeal.
13. Accordingly, the Criminal Appeal No.499/2019 is dismissed. Consequently, the judgment of acquittal dated 13.03.2012 passed by the learned Additional District and Sessions Judge, Fast Track Court-IV, Chennai, in Sessions Case No.205/2010 is confirmed.
