Murali vs State

Mr. P. Kalaiyarasan, J.—This Criminal Appeal is directed against the Judgment, dated 24.03.2016 passed by the learned II Additional District Judge, Salem in S.C.No.380 of 2014 convicting and sentencing the appellant/A2 to life imprisonment and RI for 10 years and 3 years for the offences under Section 302 r/w 34, 449 and 404 IPC respectively and also fine with default imprisonment.

The brief facts of the case are as follows :

(i) The appellant herein is the second accused in the case. The first accused having supplied can water in the area had acquaintance with the deceased Shanthi. About two years prior to the date of occurrence, he developed intimacy with her. 1� years prior to the occurrence, he had cohabitation with a girl who was with the deceased Shanthi by giving Rs.700/-. When he was taking liquor with the appellant/A2, 10 days prior to the occurrence told him about his relationship with Shanthi. At the request of the appellant/A2, on 26.03.2013, he spoke to the deceased over cellphone at about 1 pm. She told him that she alone was available and no other girls were available and if he wants he could come with money.

(ii) On the same day at 4 to 4.45 p.m, A1 along with the appellant/A2 trespassed into her house situate in Subramania Nagar, Salem. A1 informed that he has brought Rs.1,000/-. On seeing two persons, she abused with filthy language. A1 pushed her down. The appellant/A2 shut her mouth and caught hold of her. A1 brought the knife from the kitchen and cut her neck two or three times resulting her death. Accused 1 and 2 took the jewels, Rs.1800/- and two cellphones and went away.

(iii) P.W.4, Neighbour Mrs. Sathya Priya infomed the owner at 7.30 a.m on 27.03.2013 that TV in the opposite house had been put on with high volume from the morning itself and the child was not able to sleep. P.W.3, Mr. Hari Baskar, owner''s son came there and pressed the calling bell, but there was no response. Therefore, he informed P.W.2, the husband of the deceased over phone. P.W.2 along with P.W.3 came to the apartment at about 7.30 a.m and saw his wife lying dead on the floor with cut injuries on her neck. He informed P.W.1, the son of the deceased. P.W.1, Mani came there at about 8 a.m and then gave the complaint, Ex.P.1 to the police. P.W.18, Gunasekaran, Sub-Inspector of Police received the complaint and registered FIR, Ex.P.16.

(iv) P.W.20, Mr. P. Kamalesan, Inspector of Police took up the case for investigation at 10 a.m. He went to the scene of crime at 10.30 a.m on 27.03.2013 and prepared observation mahazar in the presence of P.W.9, Sepperumal, V.A.O and another witness. He also drew a rough sketch, Ex.P.20. He also recovered blood stained spectacles, knife under mahazar in the presence of the same witnesses. He also recovered blood stained mortar and sample mortar under mahazar. He conducted inquest over the dead body in the presence of panchayatdars and prepared Inquest Report, Ex.P.21. Then he sent the body to the Hospital for Postmortem.

(v) P.W.19, Dr. Kesavalingam conducted Autopsy over the dead body on 4.30 p.m on the same day and found the following injuries :

"External injuries :

Contusion over tip of nose M-1x0.5x0.5 cms

Contusion of inner aspect of upper lip M1x0x0.5 cms.

Contusion over inner aspect of lower lip M- 0.5x0.5x0.25 cms, Another M1x0.5x0.25 cms.

Cut injury over left hand between the thumb and the index finger measuring - 4x1xBone Deep.

Cut injury over right palmar aspect of middle of the middle finger measuring - 2x0.5xBone Deep.

Cut injury over right ring finger measuring 2x0.5xBone Deep.

Cut injury over right little finger M- 2x0.5xBone Deep.

Cut injury over right eyebrow M-3x5xBone Deep.

Cut injury over right Maxillarhy region measuring - 3x0.5xBone Deep.

Cut injury over right side of neck M-4x1x1 cms.

Cut injury over lower part of neck M- 4x1x0.25 cms.

Cut injury over lower part of neck measuring-7x0.5x1 cms and on right side M- 6x0.5x0.5 cms.

Cut injury over the upper part off front of neck measuring 13x3x2 cms.

Complete cut injury of Trachea, Oesophagus, Both sides of sterno mastoid muscles, Thyroid Cartilage, Blood vessels (Left side Jugular vains and left side common carotid artery).

Cut injury over chin M-2x2.5x Bone Deep. (All the above, injury are acute angles, share margins and anti-mortem in nature).

Internal Findings :

O/D Head : - Scalp normal Dura membrane - Intact Cranial Vault - intact, Brain Oedematous and C/s congested base of skull-intact.

O/D Neck : - Vide injury column Hyoid Bone - Intact.

O/D Thorax : - No Ribs fracture Heart-Normal in size chambers - Empty Valves and coronaries patent lungs C/s Pale.

O/D Abdomen : - Stomach 200 gms of partly digested cooked food particles with no specific smell mucosa-Pale, Liver, Spleen and Kidneys C/s Pale, Bladder-Empty, Pelvis and Spinal colum-Intact, Genitalia - Intact.

Viscera preserved and sent for chemical analysis report, Postmortem concluded at 5.30 pm.

After receiving the viscera report, the Doctor opined that the deceased would have died of shock and haemorrhage due to multiple cut injuries. The Post mortem certificate and final opinion of the Doctor are Ex.P.18 and Ex.P.19. The Investigating Officer also received the clothes recovered from the dead body.

(vi) P.W.22, Mr. S.Raja, Inspector of Police collected the cellphone particulars. P.W.23, Mr. P.K. Senthil Kumar, Inspector of Police took up further investigation and examined the witnesses. On 01.04.2013 on the information received, he arrested A1, Viay @ Vijayakumar and the appellant/A2, Murali and recorded their confession statement voluntarily given by them in the presence of P.W.10, Mr. Shak Iqbal, VAO (Rtd) and other witnesses.

(vii) From A1, cellphone and Rs.460/- were recovered in the presence of the same witnesses under mahazar Ex.P.6. The admissible portion of the confession statement of A2 is Ex.P.33. The cellphone was recovered from A2 under mahazar Ex.P.7 in the presence of same witnesses. Pursuant to the confession statement of A1, the jewels of the deceased, mobile phone, ladies hand bag, pants were recovered through A1 under mahazar, Ex.P.9 in the presence of Mr. Annadurai, VAO and other witness.

(viii) Pursuant to the confession statement of A2, he took the investigating Officer and the witnesses to Zakir Ammapalayam and took out the two wheeler, TN 30 AH 0393 near the house of left karthik and handed over to the Investigating Officer. He recovered the same in the presence of P.W.13, Mrs. Santhi, VAO and another witness under mahazar, Ex.P.10. Through A1, Investigating Officer recovered M.O.2, gold chain with dollar from Muthoot Finance in the presence of the above witnesses. He altered the section from 302 to 302 r/w 380 IPC and sent the alteration report, Ex.P.34 to the Judicial Magistrate Court. He gave requisition to the Court to send the properties for chemical examination.

(ix) P.W.21, Mr. R. Manickam, Chemical Examiner of Forensic Science Department examined and gave the report, Ex.P.23 and Ex.P.25. The Investigating Officer, after completing investigation laid the charge sheet.

The learned Judicial Magistrate No.II, Salem committed the case to the Court of Sessions, as the offences are triable by the Court of Sessions. The case was made over to the II Additional District Judge, by the Principal District Judge, Salem and the learned II Additional District Judge, Salem framed charges against the accused, read over and explained to them. When they were questioned, they pleaded innocence and therefore, they were put on trial. During trial, the prosecution examined 23 witnesses and marked 35 Exhibits, apart from 21 material objects. When the accused were questioned under Section 313 Cr.P.C as to the incriminating evidence, they denied as false. On the side of the accused, no witness was examined and marked one Exhibit.

The learned II Additional District Judge, Salem, after analysing the evidence found the accused guilty and convicted and sentenced both of them as mentioned in the Judgment including life imprisonment. The second accused is before this Court by preferring this appeal.

The learned counsel appearing for the appellant contends that there is absolutely no evidence to connect the appellant/A2 with the crime; that there is no motive for the crime; that the evidence of P.W.5 that he saw the appellant/A2 along with A1 near the apartment of the deceased on the date of occurrence is not reliable and that recovery of the vehicle from the accused is also false and therefore, the appellant is entitled for acquittal.

The learned Additional Public Prosecutor per contra contends that the prosecution has established the charges against the appellant/A2 through the recovery of the two wheeler, pursuant to his confession statement and the evidence of P.W.5 and the Doctor, P.W.14. P.W.5 saw the appellant/A2 with A1 coming in a two wheeler near the apartment on the date of occurrence. P.W.14, Doctor found injuries in the hands of A2 and he told the Doctor that he sustained injuries during the occurrence. Therefore, the learned Additional District Judge, after analysing the evidence has rightly found the appellant/A2 guilty for the offences.

There is no ocular evidence to the occurrence in this case. The prosecution mainly relies upon the circumstantial evidence. As far as this appellant/A2 is concerned, the prosecution relies on the following circumstances :

(1) The contact of A1 with the appellant/A2 over cellphone on the date of occurrence.

(2) Injuries found in the hands of the appellant/A2 by the Doctor.

(3) The appellant/A2 was found with A1 coming in the two wheeler near the apartment of the deceased on the date of occurrence.

(4) Seizure of two wheeler from the appellant/A2 pursuant to his confession statement.

P.W.5 says in his evidence that he was working in a Beuro workshop near Lakshmi Apartment and he saw A1 along with other person came in Bajaj Discover two wheeler at 4 p.m on 26.03.2013 and went into Lakshmi Apartment. He further says that they came out of the apartment after 45 minutes and went away. It is his specific evidence that he never saw them before and they are strangers to him. He further says during cross-examination that he saw A2 only in the Court when he was in the witness box after 2� years and he never saw the accused 1 and 2 in between. Test Identification parade was not conducted in this case. In the absence of Test Identification parade, it is highly unsafe to rely the evidence of P.W.5, who identified only A1 in the witness box after 2� years from the date of occurrence. It is also pertinent to note that the statement of P.W.5 recorded by the Investigating Officer reached the JM Court after about 9 months. Therefore, the evidence of P.W.5 is untrustworthy and cannot be relied upon.

As per the evidence of P.W.13, VAO and the Investigating Officer, P.W.23, Bajaj Discover two wheeler was recovered from A2 pursuant to his confession statement under mahazar, Ex.P.10. Since the evidence of P.W.5 has already been rejected as untrustworthy, there is no material to connect the vehicle with the occurrence.

The occurrence took place on 26.03.2013. A2 was arrested on 01.04.2013. He was taken to the Doctor on 02.04.2013. As per the evidence of P.W.14, Doctor he found injuries on the left pointing finger, right thumb and centre finger. The Doctor further says in his evidence that A2 stated before him that he sustained injuries during the occurrence. When A2 was in the custody of police, he was taken to the hospital for the injuries and therefore, the above evidence of the Doctor as to the statement of the accused before him cannot be accepted. The injuries found by the Doctor on the accused is not suffice to connect the appellant/A2 with the crime.

The call particulars of the cellphone of A2 has been marked as Ex.P.30. As per the call particulars, it is found that A1 and A2 had spoken each other on the date of occurrence. This contact between the appellant/A2 and the co-accused does not establish the complicity of the appellant/A2 with the crime.

It is pertinent to note that chemical examination report and serologist report relate to the objects recovered in the scene of crime and through A1, pursuant to his confession statement. The blood group of the deceased was detected in the material objects so recovered; but none of the objects was recovered from the appellant/A2.

For the aforesaid reasons, there is absolutely no evidence to connect the appellant/A2 with the crime and therefore, he is entitled to the benefit of doubts. Therefore, the conviction and sentence as against the appellant/A2 awarded by the Additional District Judge is liable to be set aside.

In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellant/A2 by the learned II Additional District Judge, Salem in S.C.No.380 of 2014 dated 24.03.2016 are set aside. The appellant/A2 is acquitted from the charges. Since the appellant is in jail, he is directed to be set at liberty forthwith, unless his detention is required in connection with any other case. The fine amount, if any paid, shall be refunded to him. Consequently, connected miscellaneous petition is closed.