Kaliyamurthy vs State

D. Murugesan, J.—The appellant is the sole accused who stands convicted for the offences under Sections 498A, 302, 316 and 210

I.P.C., and sentenced the appellant u/s 498A I.P.C., to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/-, in default, to

undergo rigorous imprisonment for three months, u/s 302 I.P.C., for imprisonment for life and to pay a fine of Rs. 1000/-, in default, to undergo

one year rigorous imprisonment and u/s 316 I.P.C., to undergo 10 years rigorous imprisonment and to pay fine of Rs. 1000/-, in default, to

undergo one year rigorous imprisonment and u/s 201 I.P.C., to undergo 5 years rigorous imprisonment and to pay fine of Rs. 500/-, in default, to

undergo 3 months rigorous imprisonment by the judgment of the learned Additional District Sessions Court, Fast Tract Court No. 1. Chengalpattu

dated 11.3.2004 made in S.C. No. 585/2002.

The appellant/accused was brought for trial by the prosecution on the following evidence:

(a) The accused and the deceased are married just six years prior to the date of occurrence. The accused is deaf and dumb. There was frequent

demands of dowry and as the deceased did not like to live with the accused, she left for her parents'' house just six months prior to the occurrence.

However, she was pacified and was sent back to the accused house.

(b) On 3.3.2002 at about 4.30 a.m., P.W.6 who is the neighbour of the accused came out of the house as her husband left for job. She smelt

burnt smoke from the house of the accused. As she was under the impression there was just burning and therefore she kept quiet. Again, at about

5.30 a.m., when she went outside, she saw the accused coming out of the house and leaving from his house. Thereafter, she saw P.Ws.4 and 7 the

brother of the accused as well as some other persons knocking the compound gate of the accused. She witnessed P.W.5 climbing the compound

and opening the gate from his side. She saw from inside the house and she returned to her house.

(c) P.W.4., the Milk Vendor came to the accused house around 7.30 a.m., and knocked the compound door. As there was no response she left

the place and returned back at about 9.00 a.m., and at that time she saw the brother of the accused by name Veerasamy knocking the compound

gate. She also saw P.W.5. She also saw that the doors of the house were open and inside the deceased was found dead with burnt injuries.

(d) P.W.18., the Mazan, under whom the accused was working came to the house of the accused to call him for work at about 5.00 a.m. Even

before he reached the house, he smelt the smoke and thereafter, he also knocked the compound gate and called the name of the accused. As there

was no response, he jumped over the compound wall and then found the accused running away from the house. He and the other one by name

Munusamy were under the impression that the accused had burnt his wife and was running away from his house. He also saw P.W.6 in front of her

house. Thereafter, he informed the local Panchayat Board President as to the occurrence. The version of P.W.18 is also spoken to by P.W.19.

(e) On intimation by P.W.3 at about 10.00 a.m., over the phone, P.W.1 came to the scene of occurrence at about 1 o''clock and lodged a

complaint-Ex.P.1 to P.W.20 who registered the case in Crime No. 51/02 for the offence u/s 304B I.P.C. He prepared the Express F.I.R. He

took up the investigation and inspected at the place of occurrence at about 3.15 a.m., and prepared the observation mahazar-Ex.P.2 in the

presence of P.W.7. He also draw rough sketch-Ex.P.13 and recovered M.Os.1 to 9 under observation Mahazar-Ex.P.3. He enquired and

recorded the statement of P.Ws.1, 2, 3, 6 and others. As the marriage between the accused and the deceased has taken place within 6 years from

the date of occurrence he requested an enquiry by the Revenue Divisional Officer, P.W.17 who conducted the inquest on the same evening. On

4.3.2002, he examined P.Ws.8, 9 and others and recorded their statements. He sent the material objects, Form 95 to the Court and thereafter, he

sent the Chemical Report-Ex.P.17. On 5.3.2002 he arrested the accused at about 2.00 p.m. and thereafter, the accused who was deaf and dumb

was sent to the Deaf and Dumb School, Santhome on the same day and thereafter, he made arrangement for the accused to be remanded.

(f) Thereafter, the investigation was taken out by P.W.21-Deputy Inspector of Police, Ennore Circle from 12.3.2002. He inspected the scene of

occurrence and recorded the statements of some of the witnesses and made enquiries. On 13.3.2002 he enquired and recorded the statement of

one Babu and he came to know that there is possibility of the accused who is said to have committed the murder of his wife. Therefore, he took

the accused for police custody. On 14.3.2002 and thereafter, he enquired and recorded the statements of P.W.1, 2 and 8. He came to know from

the post-mortem report-Ex.P.6, he altered the F.I.R. into one u/s 302 I.P.C., and sent the altered first information report to the Court under

Ex.P.18. On 15.3.2002, he enquired the accused in the Deaf and Dump school, Tambaram in the presence of P.W.12 and others and at the time

when the confession statement of the accused was given he came out of the room where the accused gave confession. Thereafter, P.W.22 had

taken up the further investigation On 18.3.2002 he enquired P.Ws.18, 19 and one Munusamy. On 24.3.2002 he examined, the post-mortem

doctor, P.W.16 and obtained Ex.P.6-Post-mortem report and filed a charge sheet against the accused on 23.5.2002 for the offences under

Sections 498A, 302, 316 and 401 I.P.C. The Revenue Divisional Officer held inquest and his report is Ex.P.8 and his final report is Ex.P.12.

In order substantiate the case, the prosecution had examined P.Ws.1 to 22, marked Exs.P.1 to P.19 and produced M.Os.1 to 11.

When the accused were questioned u/s 313 of the Cr.P.C. in respect of the incriminating materials appearing against him through the evidence

adduced by the prosecution the accused denied the total charges levelled against him and also stated that at 5.30 a.m., on 3.3.2002 he left the

house to answer the nature call.

Dr. Mr. Krishnamurthy, learned Counsel for the appellant submitted that the entire case of the prosecution rests only on circumstantial evidence.

(i) He would draw exclusively our attention to the evidence of P.W.6, 18 and 19 as to the vital contradictions. He would also submit that by their

conduct in having seen the accused leaving the house at 5.00 or 5.30 a.m., and also saw the deceased inside the house with burnt injuries it is quiet

unnatural for them not to inform anybody, much less, to the police till a message was given over phone by P.W.3 to P.W.1 at 10.00 a.m.

(ii) He would submit that except the above three witnesses, there is no other incriminating circumstances to implicate the accused for the offence.

He would also submit that the prosecution has miserably failed to explain as to the presence of one Veerasamy who is the brother of the accused

even at 7.30 a.m., on that day which throws serious doubt about the prosecution case. In fact, before the Revenue Divisional Officer, the mother

of the deceased had also specifically deposed that the said Veerasamy had tried to misbehave with her daughter. As the prosecution has not come

up with the true version of the case and has only falsely implicated the accused, the evidence of P.W.6, 18 and 19 are highly unreliable.

(iii) He would further submit that even according to the Investigating Officer P.W.21, the alleged involvement of the accused in the offence, came

to know only through one Babu. But, he has been withheld from the Court for the reasons best known to the prosecution. The non-examination of

the said Babu is not only fatal but also transpires the incriminating circumstances to implicate the accused. Hence, for all the above reasons, the

accused is entitled to the benefit of doubt and consequently, the appeal should be allowed.

(i) The learned Additional Public Prosecutor, on the other hand had submitted that the conduct of the accused is relevant in this case to establish

his involvement in the offence. Even according to the accused when he answered the questions u/s 313 Cr.P.C., he admitted that he left the house

at 5.30 a.m., on the fateful day. Admittedly, both the accused and the deceased alone were residing in the house. There was no third person in the

house on the fateful day.

(ii) He would also submit that the evidence of P.Ws.6, 18 and 19 are natural and they are not interested witnesses and there is no reason to

discard their evidence solely on some minor discrepancies.

(iii) He would further submit initially the case was registered only for the offence u/s 304B I.P.C. But, only on coming to know of the case of

murder on receipt of post-mortem report and that the further investigation over P.Ws.18 and 19, the involvement of the accused came to light.

(iv) The medical evidence supports the case of the prosecution and the doctor P.W.16 has opined that the deceased was first strangulated and

after she was set fire. The above incriminating circumstances would certainly establish the case against the accused/appellant.

Before we go into the rival contentions, we must state that it has been repeatedly held by the Apex Court that whenever circumstantial evidence

are considered for sustaining conviction and sentence, the Court must take great care and caution to scrutinise the evidence.

Again before we consider the incriminating circumstances as pointed out by the learned Additional Public Prosecutor against the accused,

namely, medical evidence, it would be appropriate to deal with the evidence of P.Ws.6, 18 and 19.

P.W.6 is a neighbour of the accused. According to her she came out of her house around at 4.30 a.m., to send of her husband who left for his

job. Even at that time she smelt burnt smell from the house of the accused. Unfortunately, she did not care even to verify the smell except by

explaining that she was under the impression that the smoke was due to the burning of the thrash. Again, she came out from the house at 5.30 a.m.,

for putting kolam. She saw the accused leaving his house. Again at 9.00 a.m., she also saw some persons including P.W.4, the brother of the

accused knocking the compound gate and P.W.5 climbing the compound wall and opening the compound gate and all of them went inside the

house. She also saw the dead body of the deceased burnt inside the house through the window and simply left the place.

A careful reading of the evidence of P.W.6 appears to us to be highly artificial. She claimed to be the neighbour of the accused as well as the

deceased. She smelt the burnt smell even at 4.30 a.m., and she did not care to inform when her husband came out who was leaving for his work.

Secondly, when she came out at 5.30 a.m., she saw the accused coming out of the house and she has not even asked as to the smoke from the

house and kept quiet. According to her only at 9.00 a.m., when she came out of her house she went inside the compound and saw the dead body

through window along with others. Even then she did not care to inform the other witnesses about the fact that she saw the accused leaving the

house at 5.30 a.m., on the same day. It is in the normal course a neighbour who has seen the woman dying with burnt injuries immediately

response to the same and inform her relatives or atleast to other neighbours. She had kept quiet till the police came to enquire her after the

complaint was lodged at 1.30 p.m., on the same day.

According to the evidence of P.W.18 he claims to be a Mason under whom the accused was working as his Assistant. Again on our careful

consideration of the evidence, it appears to be highly artificial. He came to the house of the accused at 5.00 a.m., on the fateful day and even

before he reached the house he smelt the burnt smell from the house and thereafter, he jumped over the compound wall along with P.W.19 and as

the door was opened, he saw the deceased lying with burnt injuries. Whether the presence of P.W.18 as spoken to by him is highly doubtful as

admittedly, the door was opened by P.W.5 only at about 9.00 a.m., as could be seen from the evidence of P.W.4. That means after P.W.18 had

jumped the compound wall and went inside the house, he should have come out of the premises again after jumping the compound. Without even

making an attempt to open the gate which was locked inside, it is not necessary to expect a person to come out after jumping the compound wall

when he could open the compound gate and come out. He would also state that he and the other one Munusamy had discussed as to the accused

committing murder by burning his wife but unfortunately, having come to know of such a brutal murder he kept quiet without informing the police

except by stating that he informed the Village President along with P.W.19 and strangely the prosecution has withheld the said person. It would

also be noted that P.Ws.18 and 19 were examined by the police only on 18.3.2002, that too, after the said Village President informed the police

about the occurrence. Further, the presence of P.Ws.18 and 19 at the time spoken to by the prosecution in the scene of occurrence is highly

artificial as there is no satisfactory explanation as to why on the very fateful day alone P.W.18 came to the house of the accused to take him to

work when there are no other evidence. It is the usual practice that he comes to the house of the accused daily to pick up him for the work.

Secondly, as spoken to by P.W.6 that he went to the house to pick up but unfortunately on seeing him, he did not care to take any attempt as to

verify the whereabouts of the accused.

The evidence of P.W.19 is also on the same line to that of the evidence of P.W.18. As we found that the evidence of P.W.18 is highly

artificial, for the same reason the evidence of P.W.19 is also one of highly artificial.

Except the evidence of P.Ws.6, 18 and 19, there is no other person to speak about the incriminating circumstances to implicate the accused as

we have found that their evidence is highly artificial and is not safe to place reliance. It would not be safe to place reliance to support the

prosecution case.

Coming to the submission of the learned Additional Public Prosecutor it is true that on the fateful day both the accused and the deceased were

alone in the house. This issue has been raised before the Apex Court and mere presence of them cannot be taken as the sole incriminating

circumstance to involve a person in the offence. In this context, it is useful to refer a decision reported in Mohd. Zahid Vs. State of Tamil Nadu,

wherein the Apex Court in paragraph 25 has held as follows:

Of course, the prosecution has established that the appellant was the only person in the company of Jabeena and her child at the relevant time on

the fateful day. But this again stops the prosecution case in the realm of suspicion, which by itself cannot be substituted for hard evidence.

As far as the submission of the learned Additional Public Prosecutor that it is a case of not a death by burning but it is a case of strangulation

and thereafter pouring kerosene and burnt the deceased. To substantiate the said cause of death, the prosecution had examined P.W.16 the post-

mortem doctor, who had opined that the death was due to strangulation and thereafter the body was burnt after pouring kerosene and set fire.

However, the fact remains that both P.W.4 as well as P.W.6 had spoken about the presence of one Veerasamy, the brother of the accused at

about 7.30 a.m., in the scene of occurrence. From their evidence it is seen he also went inside and saw the dead body and he has not cared to

inform the police immediately or the parents or relatives of the deceased. As admittedly, P.W.1, the brother of the deceased had received the

intimation at only 10.00 a.m., and the report has been given only at 1.15 p.m., we cannot refrain from mentioning one more factor as to the

presence of said Veerasamy. It is the specific case of the mother of the deceased before the enquiry conducted by the Revenue Divisional Officer,

P.W.17, that Veerasamy used to misbehave with the deceased. But the prosecution has failed to examine him as a witness. The withholding of the

said Veerasamy from deposition before the Court throws serious doubt on the prosecution case itself in implicating the accused.

For the said reasons, merely because the deceased was first strangulated and thereafter burnt into death, we cannot by any stretch of

imagination draw an inference that it was only due to the act of the deceased. As the prosecution has to stand on its own legs and as we have

disbelieved the evidence of P.Ws.6, 17 and 18, we are not inclined to attach importance as to the manner in which the death was occurred,

especially, when there was no recovery from the accused as well.

The accused is also being deaf and dumb and the Court cannot expect him to explain without the assistance of others, we are of the

considered opinion that the accused should be given the benefit of doubt.

For all the above reasons, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant is set aside. The bail bond

executed by the appellant shall stand cancelled. Fine amount if any paid by the appellant is directed to be refunded to the appellant.