(Prayer: This Criminal appeal has been filed under Section 374(2) Cr.P.C. against the judgment dated 04.03.2019 in S.C.No.58 of 2018 passed by the learned Additional District and Sessions Judge (FTC), Vellore convicting the appellant/accused under section 302 of IPC and sentencing to undergo life imprisonment and to pay Rs.2000/- in default to undergo simple imprisonment for one year.)

N. Sathish Kumar, J.

1. The learned counsel appearing for the appellant has not appeared before this court when the matter was called. This criminal appeal has been pending from the year 2019. Therefore, this court appoints Mr.L.Aswin, learned counsel, as legal aid counsel, to argue this criminal appeal for the appellant / accused.

2. Aggrieved over the judgment of conviction and sentence, dated 04.03.2019 made in S.C.No.58 of 2018 by the learned Additional District and Sessions Judge (FTC), Vellore, the lone accused has filed this criminal appeal. By the abovesaid order, the accused was convicted under section 302 of IPC and was sentenced to undergo life imprisonment and to pay a fine of Rs.2000/-, in default to undergo one year simple imprisonment.

3. The brief facts of the prosecution case is as follows:

                     3.1.P.W.1 Nagaveni’s husband Murugesan died 20 years before. Thereafter, P.W.1 remarried the accused. Through the first husband, P.W.1 had two daughtes, namely Ammu and Meenatchi and through the accused, P.W.1 had one daughter, namely Sandhya. P.W.1’s grand daughter, by name Suji was born to her daughter Ammu. As both parents died, Suji was residing with P.W.1 and the accused. The accused also married one Kasthuri and through her, the accused had three sons, namely Karthik, Surender and Vijayasarathy. The accused insisted Suji to be given in marriage to his younger son Vijayasarathy, for which Suji was not willing as she wanted to do higher studies. The accused threatened her. On 13.11.2016, the deceased was in the house. P.W.1 went to agricultural field. At that time, accused and Suji were in the house. Later, at about 8.30 a.m., the accused rushed to P.W.1 and informed her that the deceased Suji committed suicide by hanging. P.W.1 rushed to the house and found the deceased Suji in the next room with her neck tied and there was injury on her cheek. Immediately on seeing her, P.W.1 also attempted to commit suicide. However, the accused prevented the same. Later P.W.1 gave Ex.P.1 complaint to the police.

                     3.2.P.W.7, Inspector of Police, after the receipt of Ex.P.1 complaint, registered Crime No.723 of 2016 under section 302 IPC. Ex.P.11 is the first information report. Thereafter, he went to the place of occurrence, prepared observation mahazar Ex.P.13 and rough sketch Ex.P.12 in the presence of P.W.2 and one Vijayan. He has also conducted inquest with the help of torch light and prepared inquest report Ex.P.14. Thereafter, he has sent the dead body to the government hospital with the request to the medical officer to conduct the postmortem. Further, according to P.W.7, the accused was produced by one Mohanraj, VAO of Nellurpettai with his confession. Thereafter, he recorded the confession statement of the accused, the admissible portion of the confession was marked as Ex.P.10. Pursuant to the same, the accused took P.W.7 to the place of occurrence and has shown the place where the cloths were destroyed by fire. Thereafter, the accused was sent for judicial custody. After completing the investigation, he laid the final report.

                     3.3.P.W.5, medical officer attached to Gudiyatham Government hospital has conducted autopsy and found 6 cm injury around the neck and also found finger mark on both side of the cheek of the deceased and gave his opinion that the deceased died due to asphyxia prior to 18 to 24 hours of the postmortem. He has issued Ex.P.6, postmortem report and has issued final opinion under Ex.P.7.

                     3.4.P.W.4, who was the head constable has collected M.Os.1 to 4 from the dead body of the deceased and handed over the same to the Inspector of Police and then sent them to Court. P.W.6, who was the VAO at the relevant point of time, received a call from the Sub Inspector of Police of Gudiyatham town police station on 14.11.2016 at about 10.30 a.m., asking him to come to the police station. At the time when he went to the police station, he saw the accused in the police station and he was enquired by the police. The accused has given confession statement. Pursuant to the same, the police have collected M.O.5 ashes from the place identified by the accused which was recovered under a cover of mahazar. Ex.P.8 is the signature of P.W.6 in the confession given by the accused and Ex.P.9 is the signature of the assistant of P.W.6.

                     3.5.After the filing of the final report by the investigating officer, on appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C.No.58 of 2018 and was made over to the Additional District and Sessions Judge, Vellore for trial.

                     3.6.The accused was charged under section 302 IPC. To prove the case, the prosecution has examined seven witnesses, namely P.W.1 to P.W.7 and marked 16 documents, namely Ex.P.1 to Ex.P.16 and produced 5 material objects, namely M.O.1 to M.O.5.

                     3.7.On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C. as to the incriminating circumstances found against him in the evidence adduced by the prosecution witnesses. He denied all the incriminating circumstances as false. On the side of the defence, no evidence was recorded and no documents were marked.

4. The trial Court, after appreciating the oral and documentary evidence and materials on record, by judgment dated 04.03.2019, found the accused guilty of the offence and he was convicted and sentenced to undergo life imprisonment and to pay a find of Rs.2000/- in default to undergo simple imprisonment for one year. Challenging the same, the present criminal appeal has been preferred.

5. The learned counsel for the appellant would submit that there is no evidence whatsoever to show that the accused has committed the crime. The trial court on mere inference and presumption convicted the accused / appellant. The learned counsel submitted that it is a case of suicide and the deceased has committed suicide. The evidence of the medical officer clearly shows that the death of the deceased has occurred due to asphyxia and that the injury around the neck clearly shows that the deceased has committed suicide. Further, P.W.1 has also attempted to commit suicide. This clearly shows that it is nothing but a clear case of suicide. Further, it was the accused who has only informed to P.W.1 about the occurrence and it was he who had prevented the P.W.1 from committing suicide. Therefore, the conduct of the accused is normal. His conduct clearly indicate that he has been dragged on the offence later. At any event, absolutely, there is no evidence whatsoever to connect the accused with the crime.

6. The learned Government Advocate (Criminal side) would submit that the evidence of the medical officer clearly shows that the deceased died due to asphyxia and that apart, it is submitted that the accused and the deceased were in the house at the time of occurrence and the P.W.1 has left the house for the agricultural field. Therefore, it is for the accused to explain as to what has transpired in the house at the time of occurrence. There is no sufficient and satisfactory explanation from the accused. The trial court has properly appreciated the evidence and found the accused guilty and convicted him.

7. This court has considered the submissions made by both learned counsel and perused the materials available on record. The entire case is based on circumstantial evidence. It is the evidence of P.W.1 that P.W.1 and the accused were residing together. P.W.1 had two daughters through her first husband. Her grand daughter Suji was born to Ammu who was the daughter of P.W.1. P.W.1 had also a daughter through the accused. The accused had also three sons through his first wife.

8. The motive for the occurrence as alleged by the prosecution is that the accused insisted the deceased, namely the grand daughter of P.W.1 to marry his younger son Vijayasarathy. However, the deceased declined the said offer and therefore, the accused had also threatened her. To prove such a motive, absolutely there is no material whatsoever. It is the case of P.W.1 that on the date of occurrence, she left the house for doing agricultural works in the field. It is the deposition of P.W.1 that the accused had rushed to the field and informed her that her grand daughter has committed suicide. Later, P.W.1 also rushed to the spot and found the deceased in the next room. When the evidence of P.W.1 is carefully seen, it is clear that on receiving the information from the accused, PW.1 rushed to the spot and found her grand daughter in another room. The deposition of P.W.2 is to the effect that he was doing some centering work in that locality and when he was going on the main road, he saw the crowd and he heard that the deceased had committed suicide. No other witnesses were examined to prove the motive aspect for the accused committing such heinous crime of murder. The prosecution has miserably failed to prove the motive.

9. The deposition of the medical officer P.W.5 would clearly show that the deceased died due to asphyxia and he found 6 cm injury around her neck. It is relevant to note that if there is any manual strangulation and forcible strangulation, there is possibility of fracture in the hyoid bone, but in this case, the hyoid bone is intact. Further, the very conduct of P.W.1 on seeing the deceased body is that she has attempted to commit suicide. This would clearly indicate that she could not withstand the death of her grand daughter by committing suicide. In fact, it was the accused who had prevented P.W.1 from committing suicide. This aspect very clearly shows that the conduct of the accused is normal. If really, there was any strangulation by the accused as alleged by the prosecution, the very normal conduct of the accused would be that he would flee away from the place of occurrence, but admittedly, in the case on hand, the normal conduct of the accused is that he had only informed PW.1 about the death of the deceased and further he had prevented the P.W.1 from committing suicide as she could not tolerate the death of her grand daughter and had attempted to commit suicide.

10. Further, it is to be noted that the evidence of P.W.1 would clearly show that her grand daughter was in love affair with one Vinod. Further, her evidence would show that earlier there was some dispute between the two families and in fact, the phone of the deceased was snatched away by the sister of Vinod. Further, when the occurrence took place, the deceased was aged about 16 years and she had admittedly love affair with one Vinod and her contacts with Vinod has been snapped and her phone was also snatched away. All would indicate that there is a clear possibility of her committing suicide due to the above happenings. Therefore, there is no evidence to connect the accused with the crime. Merely because the accused was in the house at the relevant point of time, it cannot be inferred that it was a homicidal death. The trial court has mechanically passed an order of conviction without proper appreciation of evidence and materials.

11. Further, the evidence of P.W.1 would clearly indicate that on the same day also, the accused was taken to the police station. But the evidence of the investigating officer was to the effect that there was extra judicial confession before the Village Administrative Officer and the accused was later produced, which is highly unbelievable. Further, to support the so-called extra judicial confession, none of the witnesses were examined. Further P.W.6 VAO was examined but he has not whispered anything about the alleged extra judicial confession. The above shows that there is clear contradictory statement by P.W.1 and the investigating officer about the arrest of the accused and therefore, it clearly raised doubt on the prosecution case.

12. Therefore, an overall appreciation of the evidence, this court is of the view that the prosecution has failed to establish the motive for the alleged occurrence. Further, the conduct of the accused is normal and he has prevented the P.W.1 from committing suicide and he has not absconded from the place of occurrence and therefore, his behaviour after the incident is normal. Further, the alleged extra judicial confession is unbelievable and no evidence has been recorded on this aspect. All these aspects creates a serious doubt on the case of the prosecution. We are of the view that the prosecution has not proved the guilt of the accused beyond all reasonable doubt. Therefore, we are inclined to extend the benefit of doubt to the accused.

13. In the light of the above, this criminal appeal is allowed and the judgment of the trial Court dated 04.03.2019 made in S.C.No.58 of 2018 is set aside and the accused is acquitted of the charges levelled against him. Fine amount, if any, paid by the appellant, shall be refunded to him. Bail bond executed by the appellant shall stand discharged. There shall be no order as to costs.