Shanthi vs The State

M. Chockalingam, J.—This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No. I, Tuticorin, dated 09.12.2009, made in S.C. No. 104 of 2009, whereby the appellant/sole accused, who stood charged under Sections 449 and 302 IPC, on trial, found guilty of both the charges, convicted thereunder and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 1,00,000/-, in default to undergo 24 months simple imprisonment for the offence punishable u/s 449 IPC and life imprisonment and also to pay a fine of Rs. 2,00,000/-, in default to undergo 19 months simple imprisonment for the charge of murder u/s 302 IPC and both the sentences were ordered to run concurrently.

Short facts necessary for the disposal of the appeal can be stated as follows:

(a) P.W.1 Lalitha Sounthirapandi owned a row of houses, known as ''Soundar Compound'', in which the deceased Kannan @ Krishnarajan, along with his family members, was living in a house while the appellant/accused, who is distantly related to the deceased, was also living in a house. The appellant/accused lost her husband. P.W.13 is the daughter of the appellant and she was working as a Lecturer in a College at Erode. The deceased was leading a wayward life and he was a drunkard. P.W.16 is the brother and P.W.17 is the wife of the deceased. P.W.20 is the mother-in-law of the deceased. The accused and the deceased used to quarrel with each other over some money dispute. P.Ws.2 to 4, 10, 12 and 19 were all residents in the same Soundar Compound where the accused and the deceased were living.

(b) On the noon hours of 11.10.2008, which was the date of occurrence, P.W.20, the mother-in-law of the deceased, took along with her P.W.17 and her children to Chennai. At about 9.00 p.m., the appellant/accused entered into the house of the deceased and there was a wordy altercation between the deceased and the appellant. The above witnesses, who were residing in Soundar Compound, not only found the accused in the company of the deceased but also they witnessed the wordy altercation between them. On the next day morning, P.W.1 saw the deceased lying inside house with blood oozing from his nose and immediately she gave information to the police.

(c) P.W.16, the brother of the deceased, who was living in Thoothukudi, at 3.00 p.m. on 12.10.2008, received information from P.W.1 that his brother, the deceased, was found dead with bleeding injuries. He proceeded to Soundar Compound where the deceased was residing and found the dead body of his brother in the house. Then P.W.16 proceeded to the respondent Police and gave Ex.P-9, the Complaint.

(d) P.W.23, the Sub-Inspector of Police attached to the respondent Police Station, on receipt of Ex.P-9 Complaint from P.W.1 at about 6.30 a.m. on 12.10.2008, registered a case in Crime No. 160/2008 u/s 302 IPC and prepared Ex.P-12, the First Information Report. He sent the Express FIR to the Court through P.W.21, the Police Constable, and despatched copies to the higher police officers for further action.

(e) P.W.24, the Inspector of Police, on receipt of copy of FIR at 7.15 a.m. on 12.10.2008, took up the investigation, proceeded to the place of occurrence, made an observation in the presence of P.W.5 and another and prepared Ex.P-1, the observation mahazar and also drew Ex.P-13, the rough sketch. He recovered M.O.1 - the bloodstained cement mortar pieces and M.O.2 - sample cement mortar pieces under Ex.P-2 Mahazar attested by the same witnesses. He conducted inquest on the body of the deceased in the presence of panchayatdars and witnesses between 8.15 p.m. and 10.15 p.m. and prpared Ex.P-14, the inquest report. P.W.24 examined the witnesses and recorded their statements.

(f) P.W.18, the doctor attached to the Sathankulam Government Hospital, on receipt of Ex.P-10 Requisition from the Investigator conducted autopsy on the body of the deceased and on completion of postmortem he gave Ex.P-11, the postmortem certificate, opining that the deceased would have died of Asphyxia due to compression of larynx and respiratory passage caused by the injuries sustained by him. After postmortem, P.W.22, the Police Constable, recovered M.O.3 - bloodstained shirt and M.O.4 -bloodstained Lungi, from the body of the deceased and handed them over to the Inspector of Police.

(g) Pending investigation, On 14.10.2008 at about 6.00 a.m., P.W.24 arrested the accused in the presence of P.Ws.6 and 7 and when enquired the accused came forward to give a voluntary confessional statement, admissible portion of the same is marked as Ex.P-15, pursuant to which the accused took and produced M.O.5 - rope and the same was recovered under Ex.P-16 Mahazar attested by P.Ws.6 and 7. Thereafter P.W.24 sent the accused to judicial remand. He examined the witnesses and recorded their statements. P.W.24 gave Ex.P-17, the requisition, to the Court for sending the material objects for chemical analysis and accordingly they were sent to Forensic Lab under Ex.P-18, the letter of the Court, which resulted in two reports, namely Ex.P-19, the Chemical Analysis Report and Ex.P-20, the Serology Report. On 09.12.2008 the accused took and produced M.O.6 - Table Fan in the presence of P.Ws.8 and 9 and the same was recovered under Ex.P-21 Mahazar attested by the same witnesses. P.W.24, the Inspector of Police, examined the witnesses and recorded their statements. On completion of investigation, P.W.24 filed final report against the accused.

After committal proceedings, the case was taken on file by the Sessions Court in S.C. No. 104/2009 and necessary charges were framed. To prove the charges against the accused, the prosecution examined 24 witnesses as P.Ws.1 to 24 and marked 21 documents as Exs.P-1 to P-21 and produced M.Os.1 to 6. On completion of the evidence on the side of the prosecution, when the accused was questioned u/s 313 of the Code of Criminal Procedure about the incriminating circumstances found in the evidence of prosecution witnesses, she flatly denied all of them as false. On the side of defence, neither oral evidence nor documentary was let in. The trial court, after hearing the parties, took the view that the prosecution has proved the charges against appellant/accused beyond reasonable doubt, found her guilty, convicted her thereunder and awarded punishments as referred to above. Hence this appeal at the instance of the accused.

Advancing arguments on behalf of the appellant/accused, Mr. A. Thiruvadikumar, learned Counsel, made the following submissions.

(a) In the instant case, the prosecution came with a specific case that the accused appellant, with an intention to murder the deceased, trespassed into the house of the deceased on the night hours on 11.10.2008, had a wordy altercation with the deceased and caused his death by strangulation. The prosecution, though examined a number of witnesses, neither proved the motive nor the incident at all and there was not even an iota of evidence. It is true that the prosecution has proved that the deceased died out of asphyxia due to strangulation but, there was nothing available in evidence to indicate nexus of the appellant/accused with the crime.

(b) P.W.16 is the brother of the deceased and he came to the spot only on information from P.W.1 and it was he who gave Ex.P-9 Complaint to P.W.23, the Sub-Inspector of Police but he has not spoken to that fact. Even the reading of Ex.P-9, did not reveal that there is a specific allegation made against the appellant/accused. Though a number of witnesses were examined, who were all neighbours, to speak about two facts, namely, the appellant/accused was in the company of the deceased and there was a wordy altercation between them, no one of the witnesses has spoken to the said facts and all have been treated as hostile witnesses and hence their evidence was not available.

(c) Insofar as P.Ws.6 to 9 are concerned, they were examined as witnesses for recording of confessional statement of the accused and recovery of M.O.5 - rope and M.O.6 - table fan from her, but they have also turned hostile. Under such circumstances, the prosecution had the evidence of only the medical person pointing to the cause of death of the deceased and also the Investigation Officer who has spoken about the investigation but, the trial judge has taken an erroneous view and has found the appellant/accused guilty of the charges levelled against her in a case where there was bereft of evidence. Under the circumstances, the judgment of the trial Court has got to be set aside and the appellant has got to be acquitted of the charges levelled against her.

The Court heard the learned Additional Public Prosecutor on all the submissions made by the learned Counsel for the appellant/accused and paid its anxious consideration to the submissions made on either side and also perused the materials available on record.

It is not in controversy that the dead body of Kannan @ Krishnarajan was found in the house where he was residing and owned by P.W.1. Following the information given as to the incident, P.W.23, the Sub-Inspector of Police attached to the respondent Police Station, registered a case directly u/s 302 IPC and handed over a copy of Ex.P-12 FIR to P.W.24, the Inspector of Police, who took up the investigation. Following the inquest made by the Investigation Officer and preparation of inquest report, the dead body was subjected to postmortem by P.W.18, the doctor, who has categorically opined as an evidence before the Court as well as through the contents in Ex.P-11, the postmortem certificate, that the deceased died out of asphyxia due to strangulation. Thus, the prosecution was successful enough in proving the fact that the deceased died out of homicidal violence and this fact was never disputed by the appellant either before the trial court or before this Court and hence there is no impediment in recording so.

Insofar as the incident of murder is concerned, the Court, after scrutiny of the materials, has no hesitation to set aside the judgment of the trial court. Admittedly, the prosecution had no direct evidence to offer. The prosecution examined a number of witnesses to speak about two circumstances, namely the appellant/accused was in the company of the deceased and there was a wordy altercation between them. It is not in controversy that in a row of houses owned by P.W.1, in one house the accused was living with her family and in another house the deceased was living with his family. On the date of occurrence, as could be seen from the evidence available, P.W.20, the mother-in-law of the deceased, took P.W.17 and her children to Chennai in the noon hours.

Insofar as the evidence of P.W.1, the owner of Soundar Compound and other witnesses who were residing in the said compound are concerned, not only P.W.1, the house owner, but also other inhabitants in the row of houses owned by P.W.1 have turned hostile and thus there is no evidence to prove the circumstances that the accused was in the company of the deceased and that there was a wordy altercation between them as no one of the witnesses has spoken about the same. It is true that the dead body was found in the house and following the inquest, the same was subjected to postmortem and the cause of death was out of asphyxia due to strangulation but, there is no corresponding evidence, either direct or circumstantial, to prove by whom it was done. Further, though the Investigation Officer would claim that pursuant to the confessional statement made by the appellant/accused M.O.5 - rope and M.O.6 - table fan were recovered from her at her instance, it is unfortunate for the prosecution that P.Ws.6 to 9, who were witnesses examined by the prosecution for the alleged arrest, confessional statement and recovery have also turned hostile and thus except the evidence of the Investigation Officer, nothing is available for the prosecution.

From the above, it is clear that it is not only a case where there is lack of evidence but there is no evidence at all. Under the circumstances, the trial judge should have rejected the case of the prosecution outright but has taken an erroneous view in founding the appellant/accused guilty and this Court has no hesitation to set aside the judgment of the trial court and accordingly set aside and the appellant is acquitted of the charges levelled against her.

In the result, the appeal is allowed and the judgment of the trial court dated 09.12.2009, made in S.C. No. 104/2009 is set aside and the appellant is acquitted of the charges levelled against her. The appellant is directed to be released forthwith, unless her presence, in accordance law, in connection with any other case is required. The fine amount, if any, paid by the appellant is directed to be refunded.