Jeya @ Jayaguru vs The State

S. Nagamuthu, J.—The appellants are the accused in S.C.No.304 of 2000 on the file of the learned Additional Sessions Judge, (Fast Track Court No. II) Tuticorin. The appellant in Crl. A.(MD) No.1329 of 2000 is the first accused, the appellant in Crl. A.(MD) No.1241 of 2000 is the second accused and the appellant in Crl. A.(MD) No.1534 of 2000 is the third accused in the said case. The first accused stands convicted for offences under Sections 120(b), 364, 302 read with Section 34 and 201 IPC. The second accused stands convicted for offences under Sections 120(b) and 302 read with 109 IPC. The third accused stands convicted for offences under Sections 364, 201 and 302 IPC. For the offences under Sections 120(b), 364 and 201 IPC, the first appellant has been sentenced to undergo Rigorous imprisonment for three years for each offence and for offences u/s 302 read with 34 IPC, he has been sentenced to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to undergo rigorous imprisonment for two months. The second appellant has been sentenced to undergo rigorous imprisonment for three years for offences u/s 120(b) IPC and to undergo imprisonment for life and to pay a fine of Rs.500/-in default to undergo rigorous imprisonment for two months for offences under Sections 302 read with 109 IPC. The third accused has been sentenced to undergo rigorous imprisonment for three years each for offences under Sections 364 and 201 IPC and to undergo imprisonment for life and to pay a fine of Rs.500/-in default to undergo two months rigorous imprisonment for the offence u/s 302 IPC. The sentences have been ordered to run concurrently. Challenging the said conviction and sentences, the appellants are before this Court with these appeals.

The case of the prosecution is as follows:

The second accused is the wife of the deceased. She had developed illicit intimacy with the first accused. The third accused was the friend of the first accused. Since the deceased was a hindrance for their illicit intimacy, the accused 1 and 2 decided to do away with the deceased. They sought the help of the third accused. As a result, on 28.06.1999, all the three accused conspired near the shop of one Mages Kumar at Subramaniapuram, to kill the deceased and to dispose of the body. In the said conspiracy, A1 and A3 agreed to kill the deceased. Accordingly, on the same day at 10.15 p.m., in the presence of the first accused, the third accused stabbed the deceased with knife on the stomach, neck, back of chest and other parts of the body. The said occurrence took place near attrupathai at Vilathikulam. The first accused assisted the third accused by catching hold the deceased. The deceased died instantaneously. Thereafter the accused 1 and 3, with a view to escape from the clutches of law, took the dead body to a nearby small pond and immersed the body into the water and then they left the place of occurrence.

Subsequently, as though she did not know anything about the occurrence, the second accused preferred a complaint to the respondent police on 19.07.1999 alleging that her husband, namely, the deceased was found missing from 07.07.1999 onwards. On the said complaint, a case in Crime No.550 of 1999 for man missing was registered on 19.07.1999 itself. Even after the registration of the case, no progress could be made to find out the deceased.

Thereafter, the dead body of the deceased was found at about 6.00 a.m. on 10.07.1999 by the Village Assistant. On an information passed on by him, P.W.1, the then Village Administrative Officer of Vembar Village went to the place of occurrence and found the dead body at 6.30 a.m. At that time, the body was highly decomposed beyond recognition. At 7.30 a.m., he proceeded to Vilathikulam Police Station and preferred a complaint in this regard under Ex.A1. P.W.22, the then Inspector of Police of Vilathikulam Police Station, registered a case on the said complaint in Crime No.135 of 1999 under Sections 302 IPC. (Ex.P25) Then, he forwarded Exs.P1 and P25 to the jurisdictional Magistrate. P.W.22, thereafter, proceeded to the place of occurrence. P.W.1 and the other witnesses were there. P.W.22 prepared an observation mahazar at 8.15 a.m. in the presence of P.W.1 and another witness. He also prepared a rough sketch under Ex.P26. Then, between 9.30 a.m. to 12 noon, he conducted inquest on the body of the deceased and he prepared Ex.P27 -inquest report. Since the body was in highly decomposed condition, he made a request to the Doctor to conduct autopsy on the body of the deceased on the spot itself. Accordingly, he gave a request through Grade I Constable No.1269 to the Doctor. P.W.14, a Medical Officer at Kovilpatti Government Hospital, proceeded to the place of occurrence and conducted autopsy on the body of the deceased on 10.07.1999. He found the following injuries:

External injuries:

An elliptical stab injury of 2 cm x 1 cm horizontally placed is seen, just lateral to trachea on the left side of neck, 4 cm below chin, on further exposive the injury is seen piercing the carotid sheeth and cutting the carotid vessels.

An elliptical stab injury of 2cmx1cm seen 2cm above left clavicle medial end, horizontally placed, on exposing it is seen cutting the underlying muscles and vessels.

An elliptical stab injury of 2 x 1 cm, just lateral to the previous one, horizontal, piercing the underlying muscles and vessels.

An elliptical stab injury of 2x1 cm, horizontal, just above the left mid clavicular point piercing the underlying muscle.

An elliptical stab injury of 2 x 1 cm just above the previous one, piercing the underlying muscle, horizontal.

An elliptical stab injury of 2 x 1 cm just lateral to previous one; horizontal.

An elliptical stab injury of 2 x 1 cm, oblique, 4 cms left lateral to spine at the nape of neck, 3cm deep cutting the underlying muscle.

He opined that the deceased would have appeared to have died of shock and hemorrhage due to multiple injuries sustained.

Coming back to the investigation done by P.W.22, he examined few more witnesses including P.W.1 and the family members of the deceased and recorded their statements. He also recovered the bloodstained earth near the place of occurrence at 12.15 p.m. in the presence of P.W.1 and another witness under Ex.P28. M.O.13 is the bloodstained earth and M.O.14 is the sample earth. He recovered a full hand shirt (M.O.5) from the body of the deceased. The tailor''s name, who stitched the said shirt, was found attached. The tailor''s name is SWITZER. The shirt was also recovered under Ex.P8. On hearing about the occurrence, P.W.2, the father of the deceased, came to the police station on 20.07.1999. From the properties recovered from the body of the deceased and the photograph taken on the body at the spot, P.W.2, identified that the said body was that of the deceased, namely, his son. Then, he collected the photographs of the deceased with negative. He forwarded all the material objects to the Court. Then, he made a request to the Court to send the bloodstained objects for chemical analysis. He has also requested the Court to forward the skull of the deceased for superimposition test to ensure the identity of the deceased.

5.1. Thereafter on 21.07.1999 at 03.00 p.m. near Nagalapuram Pallivasalpatti, he arrested accused 1 and 2. On such arrest, the first accused gave a confession in the presence of one Pitchai (PW1) and one Shanmugam. The first accused gave a voluntary confession orally and the same was reduced into writing by PW 22. In the said confession, he had disclosed that he had hidden a watch (M.O.6), a pair of leather chappals (M.O.7), and one rupee coin (M.O.8) and 50 paise coin (M.O.9)at the river bed as per the recovery mahazar. In pursuance of the said disclosure statement, the first accused took PW22, PW1 and another witness to the said spot and produced the articles from the hide out. PW22 recovered the same under a mahazar. Thereafter on 22.07.1999, P.W.22 examined few more witnesses. He collected the postmortem certificate and also obtained the final opinion of the Doctor.

5.2. Superimposition was conducted by PW21 and he had forwarded a report under Ex.P.24. According to the same, the dead body was that of the person found in the photograph. Undoubtedly, the photograph was that of the deceased. PW22, collected the above report. On 03.12.1999, the third accused surrendered before the learned Magistrate, NO.I. The accused 1 and 2 had already been sent to judicial remand on 21.07.1999 itself. After the surrender of A3, PW22 gave a request and got the custody of A3. While he was interrogated at the police station, he disclosed that he had hidden a knife on the west bank of the river. Ex.P29 is the said disclosure statement. Thereafter, he took PW12 and another witness to the said place and produced MO15, knife. PW22 forwarded the same to the Court. Then, he examined PW21 and recorded his statement. Finally, he laid charge sheet against all the three accused under Sections 120(b), 302, 201 read with 34 IPC.

Based on the above materials, the trial Court framed charges against all the accused. The first charge is u/s 120(b) IPC against the accused 1 and 2. The second charge is u/s 364 IPC against the accused 1 and 3. The third charge is u/s 302 against the third accused. The fourth charge is u/s 302 read with Section 34 against the first accused. The fifth charge is u/s 201 IPC against the accused 1 and 3. The sixth charge is u/s 302 read with 109 IPC as against the second accused. All the three accused denied the charges. Therefore, the trial Court proceeded with the trial of the case.

On the side of the prosecution as many as 22 witnesses were examined and 32 exhibits were marked. Besides 15 material objects were marked. When the Trial Court examined the accused u/s 313 of the Code of Criminal Procedure in respect of incriminating evidences available against the accused, they denied the same. However, they neither choose to examine any witnesses on their side nor to exhibit any document in their defence. Having considered the above materials, the Trial Court found them guilty under all the charges and accordingly, punished them. That is how, the appellants are now before this Court with these Criminal Appeals.

We have heard the learned counsel for the appellants and the learned Additional Public Prosecutor, Mr. Ramesh appearing for the State and we also perused the materials carefully.

Admittedly, the entire case of the prosecution is based on certain circumstances. The circumstances as could be culled out from the prosecution case are as follows:

(i) the second accused had developed illicit intimacy with the first accused, for which, the deceased, namely, the husband of A2 was opposing. Since the deceased was a hindrance for their illicit intimacy, A1 and A2 conspired to kill the deceased. A3 is the friend of A1;

(ii) the deceased was found lastly in the company of the accused 1 and 3 on the alleged date of occurrence by PW10;

(iii) the first accused gave a confession to PW22, the investigating officer, wherein, he had disclosed that he had hidden a watch, a pair of chappals and coins near the river bed. In pursuance of the said disclosure statement, they were all recovered. There was no explanation on the part of the first accused in respect of the possession of these articles belonging to the deceased;

(iv) the third accused, on arrest, gave a voluntary confession, out of which, the knife M.O.15 was recovered. According to the accused, this was the weapon, which was used for the purpose of stabbing the deceased by the third accused;

(v) the second accused gave a complaint as though her husband was found missing, though the fact remains that to her knowledge the deceased was done to death by A1 and A3.

The learned counsel for the appellants would submit that none of the above circumstances have been proved by the prosecution and therefore, the conviction recorded by the trial Court is not sustainable in law. In order to substantiate his contention, the learned counsel has taken us through the evidences relating to each circumstances to show that there is no satisfactory evidence to prove the said circumstances.

Per contra, the learned Additional Public Prosecutor would submit that the prosecution clearly established all the circumstances and such proved circumstances clearly form a complete chain pointing unerringly the guilt of the accused and there is no hypothesis, which is consistent with the innocence of the accused, and therefore, according to him, all the appeals deserve to be dismissed.

We have heard the above submissions of the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State and perused the materials available on record.

The first circumstance projected by the prosecution is the motive. In order to establish the same, the prosecution has examined P.Ws. 2 to 5, who are the family members of the deceased. According to their evidence, the deceased married the second accused out of love affair much against the wishes of the family members of the deceased. However, after one month of the marriage the family members of the deceased were pacified and thereafter they were brought back to their village. The deceased was working in a private company. The deceased and the second accused were living together as a separate family. It is also their evidence that in due course, the first accused, who was a friend of the deceased, had developed illicit intimacy with the second accused. It is the evidence of P.W.5 that on few occasions prior to the occurrence, the deceased came and told them that the second accused had illicit intimacy with the first accused, which he himself witnessed. The learned Additional Public Prosecutor would submit that from these witnesses, the prosecution has proved that there was motive for the accused 1 and 2 to do away with the deceased. In our considered opinion, from these evidences, the prosecution has established that the second accused had illicit intimacy with the first accused. Apart from that nothing has been proved to indicate that there was motive on the part of the accused 1 and 2 to do away with the deceased. Thus, in our considered opinion, the prosecution has not proved the first circumstance itself.

Secondly, according to the case of the prosecution, the deceased was found missing for quite some time prior to his death. According to the evidence of P.W.6, ten days prior to the death of the deceased, the first accused took the deceased from his house. The learned Additional Public Prosecutor would submit that from the evidence of P.W.6, the prosecution has proved that the first accused was found lastly in the company of the deceased. In our considered opinion, no implicit reliance could be had on this evidence, because the said evidence is very vague. In one line, P.W.6 has stated that 10 days prior to the demise of the deceased, the first accused took the deceased. There are no other details like, when, where and how the deceased was taken by the first accused. Therefore, from the above vague evidence of P.W.6, it may not be safely concluded that the deceased was lastly seen in the company of the first accused.

Thirdly, on arrest, the first accused gave a confession to the police in the presence of the Village Administrative Officer. The lower Court has relied on the entire confession unmindful of the bar contained in Section 25 of the Evidence Act. In our considered opinion the lower Court has committed a very serious illegality in relying upon the entire confession of first accused, which hit by Section 25 of the Evidence Act. It is needless to point out that the only portion of the confession statement, which has lead to the discovery of the relative facts alone is admissible in evidence. Therefore, the finding of the lower Court solely based on the entire confession of the accused cannot be sustained.

The next circumstance is regarding the discovery of the wrist watch (M.O.5), a pair of chappals (M.O.6) and the coins (M.O.7 and 8) at the instance of the first accused on his disclosure statement. But, the said material objects (M.O.5, M.O.6, M.O.7 and M.8) have not been proved to be belonged to the deceased or that they were in the possession of the deceased, when he was lastly seen. Therefore, in our considered opinion, though the material objects were discovered on the disclosure statements made by the first accused, since the relevancy between these objects and the crime has not been established, the said disclosure statement is not admissible in evidence. Thus, the fourth circumstance has also not been proved by the prosecution.

Then, comes of the confession statement said to have been made by the second accused. The second accused surrendered before the Court from where custody was sought for and obtained by PW22. In and out of the said confession statement, the knife was recovered. Even the said knife has got no relevancy to the facts of the present case. Since this being a case based on circumstantial evidence, the nexus between the weapon and the crime should have been established at least by the presence of the blood on the knife. But, unfortunately, the knife was not sent for chemical analysis. Thus, the connection between the weapon and the crime has not been established by the prosecution. Thus, the disclosure statement allegedly made by the second accused to the investigating officer is also not admissible in evidence. Thus, the fifth circumstance relied on by the prosecution has not been proved.

Lastly, the learned Additional Public Prosecutor would submit that the body has been identified to be that of the deceased. For this purpose, the learned Additional Public Prosecutor would rely on the superimposition test conducted by P.W.21 and his oral evidence. In this regard, we may not have any difficulty in accepting the evidence of P.W.21 and to hold that the dead body in question was that of the deceased. According to the Doctor, who conducted postmortem examination, there were several stab injuries on the body of the deceased and the death was due to the injuries. From this evidence, the prosecution has proved that the deceased was done to death by some one and the body, which was discovered was that of the deceased. Except these two aspects, the prosecution has not proved any connection between the accused and the death of the deceased. In our considered opinion, the prosecution has not proved any of the material circumstances projected.

It is needless to point out that it is the settled law that in a case based on circumstantial evidence, it is absolutely necessary for the prosecution to prove all the circumstances projected by it, beyond reasonable doubt and such proved circumstances should form a complete chain leading unerringly to the irresistible conclusion that the accused alone are the perpetrators of the crime and that there is no hypothesis, which is consistent with the innocence of the accused. In this case, as we have already concluded, the prosecution has not proved any of the circumstances against the accused and thus, the conviction of the appellants is not at all sustainable.

In the result, the appeals are allowed; the conviction and sentence imposed on the appellants in S.C.No. 304 of 2000, dated 22.07.2002, is set aside and the appellants are acquitted of all the charges. Fine amount, if any, paid shall be refunded. The bail bond, if any, shall stand discharged.