(Prayer: Criminal Appeal filed under Section 372 r/w 401(5) Cr.P.C. against the judgment dated 28.06.2012 passed in S.C.No.214 of 2010 on the file of the II Additional District and Sessions Court, Ranipet, Vellore District.)
M. Jothiraman, J.
1. Challenging the judgment of acquittal dated 28.06.2012 passed in S.C.No.214 of 2010 on the file of the II Additional District and Sessions Court, Ranipet, Vellore District, the appellant/de facto complainant/PW1 has preferred the above appeal.
2. The brief case of the prosecution is as follows:
2.1 PW1—Dayanidhi, who is the brother of the deceased Dinakaran, deposed that his brother Dinakaran loved A1 and married her five years prior to the occurrence; A1 was already married and begot a female child through her first husband, but, she did not beget any issues through Dinakaran; Dinakaran was working as a lorry cleaner and used to go outstations and return to the house once in ten days; likewise, on 13.09.2008 at 7.00 a.m. when Dinakaran visited his house, he (PW1) demanded Rs.10,000, which he gave him by borrowing the same from third parties, in turn, Dinakaran informed him that he would return the money by collecting from A1 and left his house around 1.30 p.m.; PW1 awaited till 19.09.2008 for the arrival of Dinakaran; since Dinakaran did not return, PW1 went to A1’s house and enquired about him; A1 and A2 informed that Dinakaran left on the same day; since he (PW1) could not find out his brother Dinakaran even after searching him in several places, he (PW1) lodged the complaint (Ex.P1).
2.2 PW2—Malliga, who is the mother of Dinakaran, deposed similar to the version of PW1.
2.3 PW3—Chinnaiyan and PW4—Karthik, deposed that they knew Dinakaran and heard about his death.
2.4 PW5—Amudha, deposed that she knew A1 and A2; on 13.09.2008 around 6.30 p.m., when she was in her aunt’s house, she saw that Dinakaran was talking with A1 and A2; thereafter, she saw the wordy quarrel took place between A1 and A2 and Dinakaran and also saw A1 assaulting Dinakaran; after some time, she heard the sound of an auto richshaw; fearing for her life, she did not go out of the house; she narrated the same to her aunt at 11.00 pm., for which, her aunt informed her that not to disclose the same to anyone, since the accused persons are rowdy people.
2.5 PW6—Prema, neighbour of A1 and A2, deposed that she heard the sound of the auto richshaw in the nights hours.
2.6 Similarly, PW7—Selvi, deposed that she was an auto richshaw standing in front of A1’s house at 18.00 hours on 13.09.2008.
2.7 PW20—Udayakumar, Head Constable, deposed that on 14.09.2008 at 11.15 hours, he received information from the Railway Officials that a male dead body was found in the railway track between Thalangai and Walajapet, pursuant to which, he registered a case in Crime No.318 of 2008, prepared the FIR and forwarded the same to Tahsildar, Walajapet.
2.8 PW21—Elangovan, Constable Grade-I, deposed that as per the instructions of the Inspector of Police, he recovered the body and sent the same to Government Hospital and kept for three days; since the body was not claimed by anyone, the body was buried with the help of municipality scavengers; before the burial, postmortem was conducted at the Government Hospital by PW18.
2.9 PW18—Dr.Brindha, who conducted autopsy on the body of Dinakaran, issued the postmortem certificate (Ex.P10), wherein, it has been stated as follows:
“Body of a male moderately built in supine posture.
External injuries:
Lower abdomen is avulsed and opened and isterstines are herniated out. Both lower limbs in the lower hip is separated off from the rest of the lower limp. There is a fracture of the upper 1/3rd of left lower limb. Multiple blisters are seen over the upper chest arm.
Internal examination:
Hyoid bone – Intact
Right lung and left lung in the process of decomposition.
Heart – empty
Intestines herniated out through the avulsed injury in the lower abdomen.
Liver lacerated; spleen lacerated.
Right and Left kidney – crushed.
Urinary bladder – crushed
Skull – fracture of right parietal bone with herniating brain tissue.” She (PW18) opined that the deceased would have died of polytraumic and haemorrhagic shock about 48-60 hours prior to the postmortem examination.
2.10 PW24—Ramani, Sub-Inspector of Police, received the complaint (Ex.P1) from PW1 and registered a case in Crime No.1029 of 2008 under Section 174 Cr.P.C. as ‘man missing’ and prepared the printed First Information Report (FIR) (Ex.P12) and placed the copy of the FIR (Ex.P12) before PW25, Inspector of police.
2.11 PW25—Venkatakrishnan, Inspector of police, took up the investigation and gone to the scene of occurrence and enquired the witnesses and recorded their statements.
2.12 PW27—Seetharaman, on receiving the FIR in Katpadi Railway Police Station Crime No.318 of 2008, he took up the case for investigation and went to the place of occurrence, enquired the witnesses and recorded their statements; he prepared the observation mahazar (Ex.P5) and drawn rough sketch (Ex.P13) in the presence of PW12 and PW13; on 25.09.2008 at 9.00 a.m., while he was at the police station, PW8/ Village Administrative Officer brought A1 and A2 to the police station and handed over two separate statements (Exs.P2 and P3) gave by the accused persons, which was recorded by him along with the special report (Ex.P4); thereafter, he (PW27) altered the case from one under Section 174 Cr.P.C. to one under Sections 301 and 201 IPC under alteration report in (Ex.P14); thereafter, he arrested A1 and A2; on enquiry, A1 and A2 voluntarily gave confession statement and the same was recorded in the presence of PW8 and his Assistant Sengutuvan; he (PW27) gave requisition letter (Ex.P15) to PW22/Tahsildar for exhuming the body of Dinakaran and also for conducting inquest; he recorded the statements of PWs.8, 9 and 10; the admissible portion of the confession statement of A1 and A2 were marked as Exs.P16 and P17, respectively; in pursuance of the confession statement of A1 and A2, on 25.09.2008 at 18.30 hours, they went to the scene of occurrence, which belongs to Ammur Forest Department, where, on the identification by A1 and A2, he (PW27) seized thory wooden log (M.O.2), thorny wooden log (M.O.3), bloodstained green scrapings (M.O.4), green scrapings (M.O.5), bloodstained scrapings of the wall (M.O.6) and scrapings of the wall (M.O.7) under the seizure mahazar (Exs.P6 to P8); in continuation of his investigation, A2 took them to sugarcane field belonging to one Sabapathi, where, she identified and handed over bloodstained violet colour saree (M.O.8), bloodstained black colour lungi (M.O.9), bloodstained saree pieces (M.O.10) and white shirt (M.O.11) and the same were seized under the seizure mahazar (Ex.P9); thereafter, he (PW27) remanded the accused in judicial custody.
2.13 PW22—Rajkumar, Tahsildar, Walaja, deposed that on receipt of the requisition letter (Ex.P15) from PW27, he went to the burial ground with the medical team and police; PW25 identified the place of burial in the burial ground and the body was exhumed, which was in two pieces; he (PW22) conducted inquest over the body of the deceased in the presence of the witnesses and panchayathars; PW1 identified the body as Dinakaran.
2.14 PW19—Dr.Gowri Shankar, conducted postmortem on 25.09.2008 at 15.45 hours and he found the following appearances:
“Body decomposed lying supine in a bag. Its condition was decomposed. External injury: Fracture of right parietal and temporal region and linear fracture on temper frontal region. Body separated at hip level. Abdominal contents, liver, intestines, kidney, spleen decomposed. Fracture on right foot. Fracture both leg bones at lower 1/3rd.”
after completing the postmortem, the skull and bones of the deceased were collected and sent for examination and the body was again buried.
2.15 PW28—Thara, Scientific Assistant Grade-II, Anthropology Division, deposed that she examined the skull and issued skull report (Ex.P21).
2.16 PW29—Lakshmi Balasubramanian, Scientific Officer, conducted DNA test and issued the DNA reports (Exs.P22 and 23) stating that the bone pieces belong to a male individual.
2.17 PW30—Jagannathan, Scientific Officer, conducted biology test and issued biology report (Ex.P24).
2.18 PW31—Vimal Thiyagarajan, Scientific officer, conducted serology test on the material objects and issue serology report (Ex.P25.)
2.19 After receiving the reports, PW19—Dr.Gowri Shankar issued postmortem certificate (Ex.P11), wherein, he opined that the deceased would appear to have died of multiple fractures and injury to the important vital organs such as skull, including brain and long bones of both lower limbs about ten days prior to postmortem.
2.20 PW27—Seetharaman, further deposed that in continuation of the investigation on 26.09.2008 at 6.00 hours, he arrested A5 and A7 at Edapalayam Agrawaran koot road in the presence of PWs.14 and 15; he recorded the confession statement of A5; he seized Nokia mobile phone (M.O.14) under Ex.P20 and also seized the auto richshaw (M.O.1) under mahazar; A5 and A7 were remanded in judicial custody; on 26.09.2008 at 9.50 hours at Marudhalam koot road, he (PW27) arrested A3 and A4 in the presence of PWs.14 and 15; he seized Vodafone mobile phone (M.O.12) produced by A3 under the seizure mahazar (Ex.P19); he remanded A3 and A4 in judicial custody; he sent the requisition letter under (Ex.P18) for chemcial examinatioin of skull and right femur of the deceased.
2.21 PW32—Ravichandran, Inspector of Police, took the case for further investigation; he enquired PW16/owner of the auto richshaw and PW17 and recorded their statements; on 20.02.2009 at 16.00 hours at Narasingapuram bus stop, he arrested A6 and sent her to the judicial custody; he enquired the witnesses and recorded their statements.
2.23 After completing the investigation and based on the evidence collected, the Investigating Officer (PW32) filed a final report in P.R.C.No.31 of 2009 before the Judicial Magistrate No.II, Walajahpet, against the accused for the offences under Sections 302 r/w 34 and 201 IPC.
2.24 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.214 of 2010 and was made over to the II Additional District and Sessions Court, Ranipet, Vellore District, for trial.
2.25 The trial Court framed the following charges against the accused:
| Accused | Charges framed under Section |
| Dhanalakshmi (A1) | 302 r/w 34 and 201 IPC |
| Mallika (A2) | 302 r/w 34 and 201 IPC |
| Annamalai (A4) | 302 r/w 34 IPC |
2.26 To prove the guilt of the accused, the prosecution examined thirty two witnesses and marked twenty six exhibits and thirteen material objects.
2.27 After completion of prosecution side evidence, when the accused were questioned under Section 313 Cr.P.C. on the incriminating circumstances appearing against him, they denied the same. No witness was examined on the side of the defence and no document was marked.
2.28 Upon appreciation of the oral and documentary evidence and upon hearing either side, the trial Court, found that the prosecution has miserably failed to prove its case beyond all reasonable doubts and by judgment dated 28.06.2012 in S.C.No.214 of 2010, acquitted the accused of all the charges.
2.29 Aggrieved over the same, the appellant/de facto complainant/PW1, has preferred the above appeal.
3. The learned counsel appearing for the appellant would submit that the Court below has miserably failed to appreciate the eyewitness PW5 with regard to the occurrence. PW5 categorically deposed about the presence of A1 to A4, inasmuch as, the quarrel between A1 & A2 and Dinakaran, A1 & A2 assaulting Dinakaran and the subsequent movement of the auto richshaw (M.O.1) in the occurrence place. PW5, who is the neighbour of A1 & A2, has given direct evidence narrating the entire event occurred on that fateful evening. The evidence of PW5 is fully corroborated to the case of the prosecution. PWs.6 and 7 have also categorically deposed that they have seen the autorickshaw (M.O.1), which came to the house of A1 and A2 during night hours. The evidence of PW5 is quite sufficient as a direct evidence to prove the guilt of the accused. The recovery of wooden logs (M.O.2) used by the accused to attack Dinakaran and bloodstained clothes (M.Os.8 to 10) from the sugarcane field in pursuance of the confession statement of the accused shows that the recoveries were made only within the knowledge of the accused, who committed the crime, provides much valuable and unassailable evidence against the accused. The Court below is completely wrong in discarding the crucial witnesses on the premise that there is a slight improbability or minor contradictions, which, do not in any way shake the case of the prosecution. Taking a liberal view from the set of available facts and thereby, acquitting the accused is unsustainable in law.
4. Per contra, the learned counsel appearing for the respondents 1, 2 & 4/accused would submit that the entire case of the prosecution rests on the evidence of PW5, who is said to be the eyewitnesses to the alleged occurrence. PW5, in her chiefexamiantion, has stated that A1 alone had beaten Dinakaran, but, she had not stated on which part of the body of Dinakaran A1 had beaten. Being pitch dark at the time of occurrence, PW5 could not have seen the occurrence as to whether Dinakaran was drunk at that time. Further, PW5 did not reveal the occurrence to anyone and though she has stated that she (PW5) had informed the same to her aunt, the said aunt was not examined as a witness in this case. Therefore, the evidence of PW5 is unreliable and not trustworthy and unacceptable one. The prosecution has failed to prove the motive for the occurrence and not examined any witness to that effect. Upon appreciation of oral and documentary evidence, the Court below has rightly found that the prosecution has miserably failed to prove its case beyond a shadow of a doubt and the benefit of doubt must be extended to the accused. There is no reason warrants to interfere with the acquittal judgment passed by the Court below.
5. The learned Additional Public Prosecutor appearing for the fifth respondent/State would submit that the evidence of PW5, who was the eyewitness to the occurrence, is fully corroborated to the case of the prosecution. In pursuance of the confession statement given by the accused M.Os. 2 to 11 were seized. PW5, in her chiefexamination, has categorically stated that A1 had beaten Dinakaran with the wooden log. Later, she heard the sound of an auto-rickshaw, but, did not came out fearing for her life. The prosecution has also proved the motive for the occurrence that when A3 and A4, who were the customers of A1, when talking to A1 & A2, Dinakaran came there and questioned as to who were A3 and A4 and further asked that as to why they were talking with them and therefore, A3 and A4 caught hold of Dinakaran, A1 & A2 beaten Dinakaran with the wooden logs (M.Os.2 and 3) indiscriminately, during which, Dinakaran died. Further, the accused took the body of Dinakaran in the autorickshaw (M.O.1) to escape from the clutches of law. Thus, the prosecution has proved the case beyond all reasonable doubts.
6. We have considered the submissions made by the learned counsel on either side and perused the materials available on record.
7. In order to prove the guilt of the accused, the prosecution has relied upon the following circumstances:
(a)Motive
(b)Eyewitness
(c)Extrajudicial confession and Recovery
(d)Medical evidence
(a) Motive:
According to the prosecution, while Dinakaran, who was the husband of A1, came to the house of A1, A3 and A4, who were the customers of A1, talking to A2, and when the same was questioned by Dinakaran as to who were A3 and A4 by assaulting A1, enraged by which, A3 and A4 caught hold of Dinakaran and A1 & A2 beat Dinakaran with the wooden logs (M.Os.2 and 3). The prosecution has not examined any witness to prove that A3 and A4 were customers of A1 and A1 was leading an immoral life and there is no independent witness to substantiate such allegation. None of the neighbours or any other witness has spoken about A1’s alleged immoral character. Similarly, there is no material to show any previous enmity or animosity between Dinakaran and the accused persons, which could have been the motive for committing the crime. Further, according to the prosecution, Dinakaran, out of his own volition, has gone to the house of A1 to collect some amount, but, PW2, mother of Dinakaran, deposed that Dinakaran went to the house of A1, because, A1 called him requesting him to come and meet her on that day. There is a contradiction between the evidence of PWs.1 and 2. Thus, the prosecution has failed to establish the motive for the occurrence.
(b) Eyewitness:
(i) It is the case of the prosecution that PW5, who is the eyewitness, had seen the occurrence from her house. PW5, in her evidence, has stated that A1 and A2 were chatting with some two unknown male persons (A3 and A4) at their home. At that time, Dinakaran came there and shouted at them and also questioned A1 and A2 as to who were those persons, to whom, they were talking. While so, a wordy quarrel occurred between them. Further, PW5 stated that A1 assaulted the deceased with the wooden log. After some time, she heard the sound of the autorickshaw (M.O.1). In this regard, PW5, in her chief-examination, has stated that she knew A1 and A2 and she does not know as to who were A3 and A4. She is a resident of Ammur Anna Nagar and she used to come to her aunt Salama’s house. On 13.09.2008 at 6.30 p.m., she saw that A1 and A2 were chatting with two unknown male persons at A1's house. At that time, Dinakaran came there and shouted at them. Dinakaran questioned as to who were the persons, to whom, they were talking. Hence, there occurred a wordy quarrel between them, during which, Dinakaran pulled A1 by holding her tuft and beat her, in turn, A1 assaulted Dinakaran with the wooden log. From PW5's house, she had witnessed the occurrence. She also stated that later, she went inside her house and after some time, she heard the sound of the auto richshaw (M.O.1). Fearing for her life, PW5 did not disclose the same to anyone. At the time of occurrence, her aunt Salama was not at home and when the said Salama arrived to the house at 11.00 p.m., PW5 narrated the occurrence to her.
(ii) From the chief-examination of PW5, it is seen that A1 alone had beaten Dinakaran, but, PW5 did not state on which part of the body of Dinakaran A1 had beaten. Further, PW5 had not stated about the weapon used by A1. According to the prosecution, both A1 and A2 have beaten Dinakaran with the wooden logs (M.Os.2 and 3).
(iii) PW5, in her cross-examination, has categorically admitted that two male persons fled away from the scene of occurrence, when Dinakaran shouted as to who were them. PW5 also admitted that the occurrence was held in the night hours. Therefore, being pitch dark at the time of occurrence, she could not have observed as to whether Dinakaran was drunk at that time or not. PW5 further admitted that only on 24.09.2008 i.e. ten days after the occurrence, she was inquired by the police. She also admitted that she saw the occurrence, while she was walking in the street near A1’s house.
(iv) As per the evidence of PW5, for ten days, she did not disclose the occurrence to anyone, which creates doubt over the credibility of the witness. Further, the prosecution has not examined the said aunt Salama as witness. Hence, the evidence of PW5 is unreliable, untrustworthy and unacceptable one. If she really witnessed the occurrence, there would not be any contradiction in her evidence.
(c) Extrajudicial confession and Recovery:
(i) PW8, Village Administrative Officer deposed that A1 and A2 surrendered before him on 25.08.2009 at 7.00 a.m. and they gave confession statement and the same were recorded by the police and marked as Exs.P2 and P3. PW8 handed over A1 and A2 along with the special report (Ex.P4).
(ii) From the evidence of PW8, it is seen that Exs.P2 and P3 said to be an extrajudicial confession allegedly given by A1 and A2 before PW8, which came to be recorded by the police themselves and therefore, the same cannot be taken into account and the same cannot be considered as an extrajudicial confession, since Exs.P2 and P3 were prepared by the police. Therefore, Exs.P2 and P3 have no value and the same are inadmissible in law. It is well settled that the extrajudicial confession is a week piece of evidence and the same cannot be taken into consideration without strong corroborating evidence.
(iii) PW27, Investigating Officer, deposed that in pursuance of the confession statement given by A1 and A2, the material objects have been seized, but, the same have no significance in connecting the accused with the crime.
(d) Medical evidence:
In the case on hand, the body of deceased Dinakaran was found in two pieces by Katpadi Railway police in the railway track. As soon the body of deceased Dinakaran was recovered from the railway track, PW18, conducted autopsy and issued postmortem certificate (Ex.P10), in which, she did not mention as to whether the injuries found on the body of Dinakaran were antemortem or postmortem. In this case, the postmortem done on two occasions by two doctors viz. PW18 and PW19.
8. PW2 deposed that A1 had borrowed money from Women Self Help Group through Dinakaran and in order to get the money back, Dinakaran went to the house of A1 on 13.09.2008, but, he did not return thereafter. PWs.1 to 4, 6 & 7 are neither eyewitnesses nor they deposed anything incriminating against the accused. From the evidence of PW1 and 2, it is clear that they have just suspected that A1 and A2 might have murdered Dinakaran.
9. The prosecution has miserably failed to prove the case beyond all reasonable doubts. On a careful appreciation of the evidence on record, the Court below has rightly found that the prosecution has failed to prove its case beyond peradventure by projecting concrete evidence pointing out the guilt of the accused. We do not find any perversity in the findings arrived at by the trial Court warranting interference.
10. In the result, we find no reason, much less any good reason, to interfere with the judgment and order of acquittal that has been passed by the trial Court and consequently, this criminal appeal is dismissed by confirming the judgment dated 28.06.2012 passed in S.C.No.214 of 2010 on the file of the II Additional District and Sessions Court, Ranipet, Vellore District.