(Prayer: Criminal appeal filed under Section 374(2) of Cr.P.C., to call for the records relating to the judgment dated 23.05.2024 in S.C.No.76 of 2018 on the file of the learned Sessions Judge, Fast Track Mahila Court, Virudhunagar District at Srivilliputhur and set aside the conviction and sentence imposed against the appellant/accused and allow the appeal by acquitting the accused.)
G.K. Ilanthiraiyan, J.
1. Challenging the conviction and sentence rendered by the learned Sessions Judge, Fast Track Mahila Court, Virudhunagar District at Srivilliputhur dated 23.05.2024 in S.C.No.76 of 2018, the present criminal appeal has been filed by the accused.
2. The trial Court has convicted the accused as follows:
| Penal Provisions | Sentence of Imprisonment | Fine Amount |
| 302 of IPC | Life Imprisonment | Rs.10,000/- i/d to undergo one year rigorous imprisonment |
4. Further on 05.09.2017, the accused had called his brotherin- law and told him that he had assaulted the deceased. In turn the brother-in-law of the accused called one Muthuram and through him the complainant was informed about the incident. Immediately the defacto complainant rushed to the house of the deceased at Madha Nagar and she found that the house was under lock and key. Once again on 06.09.2017 she visited the house of the deceased but the house was still locked. The complainant found these circumstances fishy and went to the house of the deceased along with others and they had seen the deceased through window where she was found lying on the cot without any movement. It was informed to the police and with the help of carpenter the door was broke open and thereafter they entered into the house. Later they found that the deceased was murdered by the accused by strangulating her neck with a thread. Due to the same she had vomitted blood and had eventually died.
5. On the complaint lodged by the defacto complainantm the respondent police registered First Information Report in Crime No.565 of 2017 for the offence under Section 302 IPC.
6. After completion of the investigation, the respondent police laid the charge sheet before the learned Judicial Magistrate No.II, Srivilliputhur and the same was taken on file as P.R.C. No. 12 of 2017.
7. On the appearance of the accused, the provisions of Section 207 of Cr.P.C. was complied with, and the case was committed to the Court of Sessions, where it was taken on file in S.C.No. 76 of 2018 and was made over to the learned Sessions Judge, Fast Track Mahila Court, Virudhunagar District at Srivilliputhur for trial under Section 209(A) of Cr.P.C. The trial Court framed charges against the accused for the offences punishable under Section 302 of IPC.
8. In order to substantiate the case of the prosecution, the prosecution examined 17 witnesses as P.W.1 to P.W.17, and 18 exhibits were marked as Ex.P.1 to Ex.P.18 and six material objects were marked as M.O.1 to M.O.8.
9. After examination of the prosecution witnesses, when the accused was questioned under Section 313 of the Code of Criminal Procedure on the incriminating circumstances appearing against him, he denied the same as false. No witness was examined on the side of the accused and no document was marked.
10. The trial Court, after considering the evidence on record and hearing both sides, by judgment dated 23.05.2024, convicted the accused and sentenced him as detailed in Paragraph No.2 supra. Challenging the above-said conviction and sentence, the present appeal has been filed.
11. The learned counsel appearing for the accused would submit that though there is no eyewitness in the case on hand, only on presumption under Section 106 of Indian Evidence Act, the trial Court convicted the appellant. There are several contradictions in the prosecution witnessed and those contradictions are fatal to the case of prosecution and the prosecution failed to prove the charges beyond any reasonable doubt. He also pointed out so many contradictions in the evidence of P.W.1. It is a case of circumstantial evidence and the prosecution ought to have proved the chain of circumstances to connect the accused with the crime. However the prosecution failed to connect the link between the crime and the accused. Even according to P.W.1, she had lastly seen the accused and the deceased together on 03.09.2017. Thereafter, only on alleged phone call of the accused, on 05.09.2017 the occurrence was informed to the complainant through one Muthuram. However the prosecution failed to produce any call details records to prove the same. Further prosecution failed to make out prima facie case for presumption under Section 106 of Indian Evidence Act. The trial Court ought not to have convicted the accused for the offences under Section 302 of IPC.
12. The prosecution also failed to prove the motive behind the crime. Even in the confession statement recorded from the accused, he did not whisper about the illegal intimacy with another woman. The prosecution mainly projected the motive as if the accused had illegal intimacy with another woman and it was questioned by the deceased, but the was not proved by the prosecution. According to the case of prosecution, the accused had illegal intimacy with another lady for the past several months. Even then he did not inform about the same to the complainant. P.W.5 deposed that the door of the house was broke open. However the investigation officer had deposed that the lock of the house was opened by alternate key by the carpenter. The time of opening the house door also differs from the evidence of the complainant and other witnesses.
13. The prosecution also failed to prove the last seen theory and no one had deposed that the accused and the deceased were seen together immediately before the occurrence. No prudent woman would be quiet for two days after the receipt of a call stating that her daughter was assaulted by her husband.that the deceased was assaulted by the accused for two days. According to the complainant she was informed about the occurrence by her son through one Muthuram. Even then P.W.1 did not lodge any compliant or did not take any steps to search for the deceased. It shows that after seeing the body of the deceased, the prosecution cooked up a case with the motive as if the accused had murdered his wife as was having an illegal intimacy with another woman and the same was questioned by her and her mother (defacto complainant). The prosecution also did not mark inquest report and the same raises doubt on the case of prosecution. Further, and the reason for death of the deceased as per post mortem report is Hypoxia. As per the post mortem report there is no external injuries on the body of the deceased and her hyoid bone was also intact. Further the prosecution failed to prove the arrest, confession and statement of the accused and infact after recording of confession statement, the accused was not taken to the scene of crime. The prosecution also failed to prove the recovery. According to P.W.1, the material object which was allegedly used for the commission of offence was recovered from the house of the deceased but as per the investigation officer, the material object which was marked as M.O.1 was recovered from some other place and not from the house of the deceased. Further the prosecution also failed to mark the serology report to prove the blood stains found that of the deceased.
14. Per contra, the learned Additional Public Prosecutor would submit that admittedly the deceased and the accused visited the house of P.W.1 on 03.09.2017 at about 12.00 pm., and thereafter they stayed together in their house. He murdered the deceased on 05.09.2017 and informed about the same to his brother-in-law who inturn informed the same to P.W.1. The body was found after a period of two days in a decomposed stage. During the enquiry conducted by the Revenue Divisional Officer, the accused had informed them that he had murdered the deceased and advised them to go away from his residence. Thereafter they had gone to Madurai and stayed there. Therefore the prosecution clearly proved the prima facie case that due to pressure caused by the deceased with regard to his affair the accused had murdered his wife(deceased). Through the presumption under Section 106 of Indian Evidence Actm the trial Court has rightly convicted the accused and the judgment of the trial Court does not warrant any interference of this Court.
15. We have considered the submissions of the learned Counsel for the appellant and the learned Additional Public Prosecutor for the State, and have consciously gone through the evidence and materials on record.
16. It is a case of circumstantial evidence. The accused and the deceased fell in love and got married and thereafter they settled at Ernakulam in the State of Kerala. The accused has also another house at Srivilliputhur and whenever he visits Srivilliputhur along with the deceased, they used to stay there. While being so, the accused had developed illegal intimacy with another lady during his visits to Srivilliputhur. It came to the knowledge of the deceased and when the deceased questioned him about the same, the accused had insisted her to give divorce, since there was no possibility of them living together. Hence there was a quarrel between them and the accused had decided to do away with the life of the deceased. While being so, on 03.09.2017 at about 12.00 pm., they visited Srivilliputhur and they stayed at Madha Nagar. On 04.09.2017 at about 10.00 a.m., the accused and the deceased went to the deceased's parents' house. At that time, the deceased informed about the illegal intimacy of the accused and his intention to divorce her. Thereafter they returned to their house. While being so, on 05.09.2017, the accused called his brother-in-law (the brother of the deceased) and informed that he assaulted the deceased and directed to inform the same to her parents. Accordingly, it was informed that it was informed to the defacto complainant through one Muthuram. Thereafter P.W.1 visited the house of the deceased and found it under lock and key. Once again she visited their house on 06.09.2017 and she found the house was under lock and key. Since the phone of the deceased was switched off, with the help of neighbours P.W.1 came to the house of the deceased and found the deceased to be lying on the bed. When P.W.1 tried to wake her up, was no response and thereafter immediately the same was informed to the police and with the help of a carpenter, the door was broke open it was found that the deceased was murdered by the accused. Therefore, the prosecution projected the motive behind the crime to be the accused's illegal intimacy with the another lady whenever he visited Srivilliputhur while staying in their house situated at Madha Nagar, Srivilliputhur.
17. In order to prove the motive, the prosecution has examined P.W.1. P.W.1 deposed that, on 04.09.2017 at about 10.00 a.m. both the accused and the deceased came to her house and the deceased informed about the illegal intimacy of the accused with another lady, thereafter the accused scolded the deceased and also threatened her with dire consequences. While being so, on 05.09.2017 the accused himself informed about the occurrence to his brother-in-law who in turn informed the same to P.W.1. Since P.W.1 could not be reached by the accused, it was informed through one Muthuram. The confession statement of the accused was marked as Ex.P.13. In the confession statement of the accused, there is no whisper about his illegal intimacy with another lady.
18. The motive was projected by the prosecution as if the said information was disclosed to P.W.1 and as such the accused had intended to do away with the life of the deceased. Therefore the motive is not clear to do away the life of the deceased. Since it was informed to P.W.1 only on 04.09.2017 just one day before the date of alleged occurrence, the prosecution projected the motive as if the deceased had knowledge about illegal intimacy of the accused with another lady long time back and even then it was informed to PW1 only one day before the date of alleged occurrence. Further P.W.1 visited the house of the accused on 05.09.2017, however she did not take any further steps as the door was under lock and key. She received phone call from her son as if the deceased was murdered by the accused. No prudent person would keep quite when her own daughter was murdered. Infact after visiting the house of the accused, P.W.1 went for her work. After finishing her work on 05.09.2017 at about 5.00pm., she once again visited the house and she again found the house of the accused under lock and key and only then she informed to the police about the occurrence. She categorically deposed that the rope which was used for committing the murder which was marked as M.O.1 was recovered from the scene of occurrence. After recording his confession statement, the admitted portion of the confession statement was marked as Ex.P.13. M.O.1 along with shirt which was shown by the accused had hidden the M.O 1 and M.O. 6 to the investigation officer and the same were recovered from the accused. It is small contradiction since the very recovery itself is not proved by the prosecution. Both the material objects were recovered from the Revathy theatre.
19. The specific case of the prosecution is that the M.O.1 was recovered from the scene of occurrence and it was very much present near the body of the deceased in the scene of occurrence. That apart there are contradictions between the evidences of P.W. 1 to P.W.5. Though P.W.2 reiterated the evidence of P.W.1, she deposed that on 05.09.2017 at about 8.30a.m., her husband was informed by the accused that he had murdered the deceased. Since P.W.1's phone was found to be switched off the deceased's brother informed the said news through one Muthuram to P.W.1. Even after coming to know the knowledge about the murder, P.W.2 who is none other than the sister-in-law of the deceased along with P.W.1 did not take any steps to find out the deceased from her house,
20. In so far as the recovery of M.O.1 is concerned, in the presence of P.W.10 it was recovered by the investigation officer. According to P.W.10, M.O1 and M.O.6 were recovered from the Revathy Theatre in his presence. Therefore, it is completely contradictory to the evidence of P.W.1. According to P.W.1, M.O.1 to M.O.6 were recovered from the scene of occurrence. Therefore the prosecution failed to prove the recovery of M.O.1 and M.O.6.
21. One of the main witnesses who had received the phone call from the accused was not examined by the prosecution, who is none other than the brother of the deceased. According to the prosecution, the brother of the deceased was informed about the murder of the deceased by the accused. He only informed through one Muthuram who had informed the same to P.W. 1/mother of the deceased. In order to substantiate the same the prosecution failed to examine the brother of the deceased, therefore the visit of the accused along with the deceased to the house of P.W.1 itself is doubtful. Though P.W.1 and P.W.2 deposed that the accused and the deceased had visited their house on 04.09.2017 at about 10. 00 p.m., there is no piece of evidence to show that they had visited the house as stated supra. No prudent person that too a parent would keep quiet after coming to the knowledge that her had been murdered by her husband. P.W.1 came to knowledge about the occurrence as early as on 05.09.2017 at about 8.30 itself. The occurrence took place on 05.09.2017 but the body was found only on 06.09.2017
22. It is a case of circumstantial evidence and as such the prosecution ought to have proved the chain of link to connect the accused with the crime. Except P.W.1 and P.W.2 no witnesses had spoken that the accused and the deceased visited their house at Madha Nagar Srivilliputhur. Further P.W.1 and P.W.2, informed that they were not informed by the brother of the deceased about the alleged occurrence rather they were informed by one Muthuram. The brother of the deceased was not examined by the prosecution. Further P.W.1 and P.W.2 did not even whisper about the name of the brother of the deceased. The prosecution has falsely fabricated that the brother of the deceased was informed by the accused that he murdered the deceased, in turn the brother of the deceased informed P.W.1 through one Muthuraman/P.W.4. Though the prosecution has examined Muthuraman as P.W.4 he had only mentioned that he received the said information from the brother of the deceased. But that person, though wuld have been a substantial witness was not examined by the prosecution to substantiate the case. Therefore the prosecution failed to prove the chain of link to connect the accused with the crime.
23. In the case of circumstantial evidence, the Court has to examine the evidence in entirety and ensure that the only inference that can be drawn from the evidence is the guilt of the accused. In the case on hand, the prosecution failed to prove the recovery of M.O.1 and M.O.6 which were allegedly used for committing the murder of the deceased and the prosecution also failed to prove the motive behind the crime, thereby failing to establishing the guilt of the accused on the basis of circumstantial evidence. For establishing the guilt on the basis of circumstantial evidence the circumstances must be fairly established and the chain of circumstances must be completed from the facts. The chain of circumstantial evidence cannot be concluded in any manner sought to be urged by the prosecution.
24. Further the prosecution mainly relied upon the presumption as contemplated under Section 106 of Indian Evidence Act, wherein the burden of proof shifts on the accused,since the accused and the deceased had stayed together in their house at Madha Nagar at Srivilliputhur and thereafter the deceased was found murdered by the accused. It is relevant to extract the provisions of Section 106 of Indian Evidence Act.
106. Burden of proving fact especially within knowledge.
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustrations
(a)When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.
(b)A is charged with travelling in a railway without a ticket. The burden of proving that he had a ticket is on him
25. In view of the provision, there is a corresponding burden on the inmates accused to give a cogent explanation about the manner of the commission of the crime, but the initial burden is upon the prosecution to first prima facie establish the guilt of the accused and then only the burden shifts upon the accused to explain the circumstances as contemplated under Section 106 of the Evidence Act. The principles of law governing the applicability of Section 106 of the Evidence Act has held that the Court should apply Section 106 of the Evidence Act in criminal cases with care and caution. The ordinary rule which applies to criminal trials that places the onus on the prosecution to prove the guilt of the accused, does not, in any way, stand modified by the provisions contained under Section 106 of the Evidence Act. The said provision cannot be invoked to make up the inability of the prosecution to produce the evidence of circumstances pointing to the guilt of the accused. The said provision cannot be used to support a conviction unless the prosecution has discharged the onus by proving all elements necessary to establish the offence.
26. Further, though the prosecution projected the case as if the brother of the deceased received phone call from the accused about the murder, the brother was not examined by the prosecution. Call detail records were not recovered by the prosecution to substantiate the same. Further, the cause of death of the deceased was reported to be hypoxia. No external injuries were found on the body of the deceased. Even after the arrest of the accused and recording of the confession statement of the accused, he was not taken to the scene of occurrence by the prosecution. That apart the accused was very much available near the scene of occurrence and if at all he had committed the murder, he would have fled away from the scene of occurrence. Further, it is highly unbelievable that a person who committed a murder of his wife would called her brother and informed to him instead of absconding. Therefore this Court is not inclined to believe the entire case of proseucution.
27. From the overall circumstances the prosecution failed to prove the motive, recovery of M.O.1 and M.O.6, circumstantial evidence and last seen theory to fix the accused. Except the accused being the husband of the deceased, no other circumstances has been proved by the prosecution for invoking presumption under Section 106 of Indian Evidence Act. In view of the same, the conviction and sentence imposed by the trial Court is liable to be set aside.
28. In the result the criminal appeal stands allowed. The conviction and sentence passed in S.C.No.76 of 2018 on the file of the learned Sessions Judge, Fast Track Mahila Court, Virudhunagar District at Srivilliputhur is set aside and the appellant is acquitted of all charges. Bail bond if any executed by the appellant shall stand cancelled. Fine amount if any paid shall be refunded.