Madras High Court
Sudalaiyandi vs State Represented By on 27 September, 2006
Author: K.N.Basha
Bench: K.N.Basha
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27/09/2006 CORAM: THE HON'BLE MR. JUSTICE AR. RAMALINGAM and THE HON'BLE MR. JUSTICE K.N.BASHA Criminal Appeal No.147 of 2005 Sudalaiyandi .. Appellant /Accused. versus State represented by the Inspector of Police, Kurumbur. Crime No.132 /2003, Tuticorin District. .. Respondent Criminal Appeal filed under Section 374(2) Cr.P.C. against the judgment passed by the Principal Sessions Judge, Tuticorin, in S.C.No.261 of 2004 dated 14.3.2005. !For appellant .. Mr.S.Ashok Kumar, Senior Counsel, for M/s.R.Rajasekaran and S.Velpandian. ^For respondent .. Mr.N.Senthurpandian, Addl. Public Prosecutor. :JUDGMENT
(Judgment of the Court was delivered by K.N.Basha,J.) The first accused, Sudalaiyandi, who is the appellant has come forward with this appeal challenging his conviction and sentence passed by the learned Principal Sessions Judge, Tuticorin, in S.C.No.261 of 2004 dated 14.03.2005 convicting him to suffer life imprisonment and also imposing a fine of Rs.1,000/-, in default to undergo Rigorous Imprisonment for a period of one year for the offence under Section 302 I.P.C. and also convicting under Section 201 I.P.C. and sentencing him to undergo one year Rigorous Imprisonment and imposing a fine of Rs.500/- in default to undergo three months Rigorous Imprisonment and the learned Trial Judge ordered the sentences to run concurrently.
2. There are four accused in this case and four charges were framed against them.
(i) The first charge is against A-1 to A-4 for conspiracy to commit the murder of the deceased, Parvathi under Section 120 (b) I.P.C.
(ii) The second charge is against A-1 with the intention to kill the deceased Parvathi and strangulated her neck with rope and caused her death punishable under Section 302 I.P.C.
(iii) The third charge is against A-2 to A-4 as A-4 said to have taken the rope and handed over to A-1 and at that time A-2 and A-3 accompanied with A-1 and A-4 and as such punishable under Section 302 r/w 34 I.P.C.
(iv) The fourth charge is against A-1 to A-4 that A-1 to A-4 knowing that the deceased was murdered, in order to escape from the punishment spread the news that the deceased died due to suicide by hanging herself on 27.09.2003 at 10.00 a.m. and as such punishable under Section 201 I.P.C.
3. On 15.02.2005 A-4 Sankaranarayanan, reported dead and therefore, the charges against him abated. The learned trial Judge found A-1 to A-3 not guilty under the first charge of conspiracy under Section 120 (b) I.P.C. The first accused was found guilty under Section 302 I.P.C., as per the second charge. A-2 and A-3 found not guilty under Section 302 r/w 34 I.P.C. In respect of the third charge. The first accused was found guilty under Section 201 I.P.C., as per the fourth charge and the second and third accused found not guilty under that charge. The learned trial Judge convicted the first accused/the appellant herein and sentenced him, as stated above.
4. The brief facts of the case as projected by the prosecution for the purpose of disposal of the appeal, are as follows:
(a) The deceased, Parvathi is the sister of P.W.1. The second accused is the husband of the deceased. The first accused is the father of the second accused. The third accused is the mother of the second accused. The fourth accused is the uncle of the second accused. The second accused is also the cousin of the husband of P.W.1.
(b) This case stands on the circumstantial evidence. P.W.1 who is the sister of the deceased stated that she was married to one Sankar alias Sankaralingam, seven years prior to the date of occurrence and his husband was doing business in milk. The deceased was married 3-1/2 years prior to the date of occurrence with the second accused. The deceased was living in the joint family along with A-1 to A-3 and the house of the deceased is situated six houses away from the house of P.W.1.
(c) Two months prior to the date of occurrence, there were misunderstandings between the in-laws of P.W.1 and the in-laws of the deceased and as such P.W.1 and her husband were not in talking terms with the family of the accused and as such P.W.1 is not visiting the matrimonial house of the deceased and the deceased also not visiting the house of P.W.1. P.W.1's husband borrowed a loan from the Kurumbur Co-operative Bank and he was unable to settle the loan amount. Three days prior to the date of occurrence, the Co-operative Bank had taken action to attach the property and at that time P.W.1's husband was not at the house. Bank officials insisted to pay the loan amount immediately. Thereafter, P.W.1 by pledging her gold chain settled the dues towards the loan obtained by her husband from the Co-operative Bank. On the return of her husband, P.W.1 informed him and asked him why he left her alone when the bank officials came for attachment which resulted in a wordy quarrel and she was also beaten by her husband on that date.
(d) The deceased having heard about the above said incident, a day prior to the date of occurrence said to have come to the house of P.W.1 and took her to the house of another sister one Velammal's house and from there the deceased left for her house. This incident happened on 26.9.2003. On 27.9.2003 at 10.30 a.m., P.W.1 heard that her sister deceased committed suicide by hanging herself and immediately went to the house of the deceased and the deceased was found lying in the hall. At that time P.W.1 found only A.1, father-in-law of the deceased, in the house and other accused were not present. Thereafter, A.3
- mother-in-law of the deceased, A.2 - husband of the deceased and other relatives came to the house. A.4 also arrived at the scene house. When P.W.1 questioned A.1, A.1 informed that he had been to the shop and on his return he found the deceased hanging. P.W.1 requested the accused to take the deceased to the hospital and they brought the doctor P.W.7 to their house. P.W.7 examined the deceased and he declared that the deceased died. P.W.1 also further claimed that she found some injuries on the thigh and chest of the deceased and also a burn injury on the neck and as such she was under the impression that the deceased could not have committed suicide.
(e) P.W.1 also claimed that she was informed by the neighbours of the deceased viz., P.Ws.2 and 3 that since the deceased visited the house of P.W.1 on the previous day, A-1 to A-3 quarrelled with her. Thereafter, the parents and brother of the deceased arrived at the scene of occurrence and they also found the deceased lying dead.
(f) P.W.1 thereafter, went to Kurumbur Police station on 27.09.2003 at 4.30 p.m. along with her brother Lakshmanan and gave a report Ex.P.1 to P.W.11, Sub-Inspector of Police. P.W.11 registered the case in Crime No.132/2003 under Section 174 Cr.P.C. Express First Information Report is Ex.P.9. Since the deceased died within 4-1/2 years from the date of marriage, P.W.11 sent the reports Ex.P.1 and Ex.P.9 to Tiruchendur R.D.O. - P.W.12 for conducting inquest and he has also sent the reports to the higher officials.
(g) P.W.12, R.D.O, conducted inquest on 27.9.2003 in the presence of witnesses. During the inquest P.W.12 also examined the parents and sister (P.W.1) of the deceased and the accused 1 to 3. He recorded their statements independently and obtained their signatures. It is also further specifically mentioned by the parents of the deceased to P.W.12 that their daughter, the deceased, was not subjected to dowry harassment and cruelty and further they are not aware about the reason for the death of the deceased. It is also specifically stated by the parents of the deceased before P.W.12, R.D.O., that A-1, A-2 and A-3, father-in-law, husband and mother-in-law of the deceased are not responsible for the death of their daughter. A-1, father-in-law of the deceased, specifically stated to P.W.12 that on the date of occurrence he left the home for the purchase of vegetables at 10.15 a.m. and on his return after 20 minutes he found that the front door of the house was locked and he heard the crying of the child and thereafter he went to the back side and even that door was also found locked and as a result he broke open the door and went inside and found the deceased hanging. Ex.P.10 is the inquest report submitted by P.W.12, R.D.O. on 27.09.2003. In that report, P.W.12, R.D.O., stated that the parents of the deceased stated that there is no dowry harassment and any cruel treatment from the accused 1 to 3 against their daughter and further they have stated that they are not suspecting anyone in respect of the death of the deceased. P.W.12 stated that the reason for the death was not known. On 28.09.2003, P.W.12 submitted another inquest report, Ex.P.12. The very same report, Ex.P.10 dated 27.09.2003 with additional finding signed on 28.09.2003 under Ex.P.12 was submitted by the R.D.O., P.W.12. In that report, it is stated by P.W.12 that the dowry harassment is not the reason for the death of the deceased and the deceased might have been assaulted by her father-in-law(A-1), mother-in-law (A-
3) and A-4, the maternal uncle of A-2, husband of the deceased and thereafter she might have been hanged and as a result there is a suspicion. Thereafter, P.W.12 sent the body of the deceased for post-mortem with a requisition Ex.P.11.
(h) P.W.8 - Doctor attached to Srivaikundam Government Hospital conducted postmoretm on the body of the deceased on 28.9.2003 at 1.00 a.m. and he found the following injuries on her.
"(1) A ligature mark of width 2 c.m. running transversely at the level of lower end of thyroid cartilage, completely encircling the neck. (2) Another ligature mark of same width starts below the left angle of jaw, running parallel to the first ligature mark ending below 2 behind the right ear lobe.
(3) A bruise of 3 X 2" in the inner aspect of right thigh.
On dissection of the ligature mark 2 bruise there is extravasation of blood in the subcutaneous tissue.
P.W.8 - Doctor has stated in Ex.P.4, postmortem certificate that the deceased would appear to have died of 36 to 48 hours prior to the postmortem and he also reserved his opinion pending report of chemical analysis as the viscera was sent for chemical examination. The same doctor on receipt of the chemical examination report issued postmortem report Ex.P.6 by giving final opinion that the deceased would appear to have died of asphyxia due to strangulation.
(i) P.W.13, Deputy Superintendent of Police received First Information Report in this case on 27.9.2003 at 5.30 p.m. and took up investigation. He went to the scene of occurrence at 6.00 p.m. and examined P.W.6 and Thoondilmuthu. He prepared observation Mahazar, Ex.P.2, and rough sketch, Ex.P.13 in the presence of witnesses and recovered M.Os. 1 and 2 rope and wooden door piece under Ex.P.3. Thereafter, he examined P.Ws.1 and 2, one Lakshmanan, one Amirtharajan and one Ariyanayagam and recorded their statements on 27.9.2003. He received the report of the R.D.O. Ex.P.12 and on receipt of Ex.P.12, P.W.13 came to know that the death is not due to dowry demand and therefore, sent the case for further investigation to the Inspector of Police.
(j) P.W.14, Inspector of Police, took up investigation on 30.9.2003. He altered the case under Section 174 Cr.P.C. to one under Section 302 I.P.C. on 4.10.2003. Ex.P.14 is Express F.I.R. and he sent the same to the Judicial Magistrate Court, Srivaikundam. He also sent the R.D.O.'s reports, Ex.P.10 and Ex.P.12 and the statement recorded by him to the Magistrate's Court. He arrested A.2 on the same day at Nalloor bus stop at 7.00 a.m. in the presence of P.W.6 and another. He has recorded his confession in the presence of witnesses. At 8.30 a.m. he arrested A.1, A.3 and A.4 and he also recorded the confession of A.1 and thereafter remanded all the accused to judicial custody. He also examined Marimuthu, P.Ws.2 and 3, one Karunakaran, one Thoondilmuthu, P.W.6 and the constable, P.W.11 and recorded their statements. On 5.10.2003, he examined P.Ws.4 and 5 and recorded their statements. On 6.10.2003 he examined one Sankar and recorded his statement. On 2.12.2003 he examined the doctor P.W.8 and recorded his statement. He received the post-mortem certificates Ex.P.4 and Ex.P.6 and also examined other doctors and recorded their statements. He also examined P.W.11 and one Kaliappan and recorded their statements. After completion of the investigation he filed the charge sheet against the accused 1 to 4 under Sections 120(B), 302, 201 read with Section 34 I.P.C. on 8.12.2003.
5. The prosecution in order to bring home the charges against the accused, examined P.Ws.1 to 14, filed Exs.P.1 to 14 and marked M.Os. 1 to 14.
6. The accused 1 to 4 were examined under Section 313 Cr.P.C. in respect of the incriminating materials made against them through the evidence adduced by the prosecution witnesses. The accused 1 to 4 denied each and every circumstances put to them and they have stated that they have been falsely implicated in this case.
7. Mr.S.Ashok Kumar, learned Senior counsel appearing for the appellant while assailing the judgment of conviction of the learned Trial Judge submitted that the prosecution has miserably failed to establish the circumstances by clear and cogent evidence and there are several missing links. The learned Senior counsel taken us through the entire materials available on record meticulously and made the following submissions :
(1)The learned Trial Judge having acquitted A-2 and A-3 disbelieving the prosecution case has erred in convicting the appellant/A-1 by mainly placing reliance on the presence of A-1 at the time of occurrence at the scene house. (2)A-1 has given explanation for his absence in the scene house at the time of the occurrence even at the earliest point of time of his examination by the R.D.O., P.W.12. It is stated by A-1 to P.W.12, R.D.O. that on the date of occurrence at 10.15 a.m. he left the home for buying vegetables and on his return he found the front door of the house was locked and having heard the crying of the child he went to the back side and found that door also locked and thereafter he broke open the door and entered inside and found the deceased hanging. This earliest version of A-1 is also probabilised by the admission of the Investigating Officer, P.W.14 that during his visit to the scene of occurrence he found the back door of the house was broken and he was informed by the witnesses present at that time that A-1 by breaking open the door went inside the house and attempted to save the deceased, his daughter-in-law. (3)The non-examination of the witnesses who have informed the Investigating Officer, P.W.14 regarding the conduct of A-1 by breaking open the back door and thereafter attempting to save the deceased is fatal to the prosecution case. (4)Even assuming and if not admitting, the presence of A-1 at the time of the alleged occurrence at the scene house itself is not sufficient to establish the guilt in the absence of further evidence regarding the actual commission of the crime.
(5)There is absolutely no motive for A-1 or the other accused to commit the murder of the deceased. As per the inquest report, ExP.12, the parents and sister (PW.1) of the deceased categorically stated that there is no dowry harassment or any cruel treatment meted out by the deceased at the hands of the accused.
(6)The attempt made by the prosecution to put forward the motive against the accused viz., that on the previous day of the occurrence, the deceased went to the house of P.W.1 was disliked by the accused 1 to 3 as the in-laws of P.W.1 and the in-laws of the deceased were not in talking terms is not proved. The further allegation that P.W.1 was informed by P.Ws.2 and 3 that A-1 to A-3 quarrelled with the deceased questioning her conduct of visiting the house of P.W.1 is also not supported by the evidence of P.Ws.2 and 3. P.W.2 merely stated that on the previous day she heard the shouting from the house of A-1 and A-2 and the deceased were shouting each other whereas P.W.3 simply stated that she heard the shouting on the previous day and she has not whispered anything about the alleged quarrel between the accused and the deceased. (7)Even P.W.1 categorically stated before the R.D.O., P.W.12 as disclosed through the reports, Ex.P.10 and Ex.P.12 that the deceased committed suicide due to depression on the ground that she was abused by her mother-in-law (A-3) and her husband, A-2.
(8)The parents of the deceased categorically stated before the R.D.O., P.W.12, during their examination that there is absolutely no demand of dowry or any cruel treatment meted out by the deceased at the hands of the accused and A-1 to A-3 are not at all responsible for the death of their daughter, the deceased. (9)The medical evidence has not conclusively established the charge that the death of the deceased is due to strangulation. In the first report, Ex.P.4, the Doctor simply stated that the deceased died 36 to 48 hours prior to the post-
mortem and he has not given any opinion regarding the cause of death. In the second report, Ex.P.6, the Doctor, opined that the deceased would appear to have died of asphyxia due to strangulation. The post-mortem certificate disclosed that hyoid bone is intact and there is no symptoms of strangulation.
8. Per contra, the learned Additional Public Prosecutor submitted that the prosecution has come forward with the clear and cogent version. It is contended that there is no missing links in the circumstances put forward by the prosecution. The learned Additional Public Prosecutor further submitted that the presence of A-1 at the time of the occurrence is proved by the prosecution and except A-1 no one was present and as such the learned Trial Judge has rightly convicted A-1. It is further contended by the learned Additional Public Prosecutor that regarding the motive, the prosecution has proved through the evidence of P.W.1 and P.Ws.2 and 3 as both P.Ws.2 and 3 heard the shouting from the house of the accused on the previous day. The learned Additional Public Prosecutor contended that the defence theory of suicide is not probabilised by any materials and on the other hand the prosecution version of the deceased died due to strangulation at the hands of A-1 is supported by the medical evidence through the Doctor, P.W.8.
9. We have given our careful and anxious consideration to the rival contentions put forward by either side as well as perused the entire materials available on record.
10. As already stated that the entire case rests on the circumstantial evidence. It is well settled by a catena of decisions of the Hon'ble Supreme Court that in a case of circumstantial evidence, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established and there should be a completion of chain of circumstances. The Hon'ble Supreme Court has held in BODH RAJ ALIAS BODHA AND OTHERS v. STATE OF JAMMU AND KASHMIR reported in AIR 2002 (SC) 3164 that, "Where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. The conditions precedent before conviction could be based on circumstantial evidence must be fully established. They are: (a) the circumstances from which the conclusion of the guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established ; (b) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty ; (c) the circumstances should be of a conclusive nature and tendency ; (d) they should exclude every possible hypothesis except the one to be proved ; and (e) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused". Therefore, this Court has to keep in mind the above said settled principle of law laid down by the Apex court in respect of a case of circumstantial evidence before proceeding to consider the circumstances relied by the prosecution in this case.
11. Before proceeding to consider the circumstances relied by the prosecution, this Court is of the view that it is necessary to highlight the relationship between the deceased and her husband/A-2 and her in-laws viz., A-1 and A-3. The entire perusal of records makes it crystal clear that the deceased was leading a happy married life with her husband/A-2 and both of them were living in a joint family along with A-1 and A-3, in-laws of the deceased and there is absolutely no demand of dowry or any ill-treatment meted out by the deceased at the hands of the accused. It is also admitted by P.W.1 who is none else than the sister of the deceased that there were no quarrels at any point of time between the second accused and his wife, the deceased. Two children also born to them out of their wedlock. Even in Ex.P.1, the report said to have been given by P.W.1, there is no whisper about any ill-treatment or demand of dowry against any of the accused.
12. The parents of the deceased categorically stated to P.W.12, R.D.O., during inquest that there is absolutely no demand of dowry and their daughter also not subjected to cruel treatment by any one of the accused. It is also categorically stated by them that A-1 to A-3 are not responsible for the death of their daughter, the deceased and they are also not suspecting anyone. Even P.W.1 in her earliest statement viz., the report, Ex.P.1, categorically stated that the deceased died due to suicide.
13. Now, let us consider the circumstances relied by the prosecution. The prosecution placed reliance on the following circumstances :
(1). Motive : The motive, according to the prosecution, is that P.W.1 who is the sister of the deceased married one Sankar (a) Sankaralingam and her husband borrowed some loan from the Kurumbur Co-operative Bank and as he has not cleared the loan the bank officials attached the properties and came to the house of P.W.1 and at that time her husband was not at home. P.W.1 was compelled to clear the dues by pledging her jewellery. Thereafter on the return of her husband P.W.1 informed him and asked him why he left her when the bank officials came for attachment which resulted in a wordy quarrel between P.W.1 and her husband and she was beaten by her husband. On hearing about this episode, the deceased said to have come to the house of P.W.1 on the previous day of the occurrence and took P.W.1 to her another sister one Velammal's house and after leaving P.W.1 in her sister's house the deceased returned to her matrimonial house. It is also stated by P.W.1 that P.W.1's in-laws and the accused family were not in talking terms and as such P.W.1 and her husband were not visiting the matrimonial house of the deceased. Thereafter, the accused said to have questioned the conduct of the deceased and as a result the accused said to have committed the offence of murder.
(2). Injuries found on the deceased : P.W.1 claimed that she has found certain injuries on the right thigh and chest on the deceased and also found injury encircling the neck therefore she suspected that her sister could not have committed suicide on her own.
(3). Evidence of P.Ws.2 and 3 : The evidence of the neighbours of the house of the deceased, P.Ws.2 and 3, is to the effect that they heard shouting from the house of the deceased on the previous day of the occurrence viz., on 26.09.2003. (4). The report of R.D.O., P.W.12, under Exs.P.10 and 12 :
Ex.P.10, the report is dated 27.09.2003 and also singed by P.W.12 on the same day. This report contains the statements of the parents of the deceased, P.W.1, sister of the deceased and as well as A-1 to A-3. The parents and sister (P.W.1) of the deceased categorically stated that there is no demand of dowry or the deceased was not subjected to ill treatment by any one of the accused. The next day i.e. on 28.09.2003, P.W.12 incorporating the very same statements of parents of the deceased including P.W1, sister of the deceased and A-1 to A-3 and added further that the deceased could not have committed suicide by hanging and she might have been assaulted and murdered by someone. It is also further stated by P.W.12 that there is a suspicion that the deceased could have been murdered by A-1 and A-3 and A-2's uncle, A-4.
(5) Medical Evidence : As per the post-mortem Doctor, P.W.8, the deceased could not have sustained injuries due to self-hanging and the deceased died due to asphyxia due to strangulation.
(6) The presence of the first accused along with the body of the deceased :
P.W.1 stated that while she went to the matrimonial house of the deceased she found only A-1 along with the body of the deceased which was lying on the floor.
14. In respect of the first circumstance viz., motive, it is the case of the prosecution that the accused said to have questioned the conduct of the deceased visiting the house of P.W.1 on the previous day of the occurrence as the in-laws of P.W.1 and the accused family were not in talking terms. In respect of this version of prosecution there is absolutely no direct evidence. The evidence of P.Ws.2 and 3, the neighbours is to the effect that they simply heard some shouting from the scene house on the previous day of occurrence. Though it is claimed by P.W.1 that A-1 to A.3 quarrelled with the deceased about her conduct of visiting P.W.1's house on the previous day of the occurrence, P.Ws.2 and 3 not whispered a word about it except stating that they have heard some shouting from the house of the accused on the previous day. P.W.1 merely stated in the report, Ex.P.1 that the in-laws of the deceased quarrelled with the deceased questioning her conduct of visiting P.W.1's house and as a result the deceased committed suicide due to depression. But she has not stated anything more as to how she came to know about the quarrel of the accused and the deceased on the previous day and further there is absolutely no material available on record to substantiate the version of P.W.1 in her report, Ex.P.1. It is also relevant to note that the earliest version of P.W.1 before P.W.12, R.D.O., during inquest is that the deceased committed suicide due to abuse of her mother-in-law, A-3 and her husband, A-2. It is relevant to note that the earliest statement of the parents of the deceased to the R.D.O., P.W.12, as already stated, there is absolutely no demand of dowry or any cruel treatment meted out by the deceased at the hands of the accused 1 to 3 and further they have categorically stated that A-1 to A-3 are not responsible for the death of the deceased. Therefore, in our considered view that the prosecution has miserably failed to prove the motive in this case.
15. The second circumstance relied by the prosecution is the injuries said to have been found on the deceased, as per the evidence of P.W.1. It is relevant to be noted that P.W.1 has not whispered a word about the injuries said to have been sustained by the deceased in the earliest report, Ex.P.1 though she has claimed that she has seen the injuries on the deceased even before giving the report, Ex.P.1. The R.D.O., P.W.12 has not stated anything about the external injuries on the deceased in his report, Ex.P.10 and Ex.P.12 except a ligature mark said to have been found by him on the neck of the deceased. It is further relevant to be noted that the Post-mortem Doctor, P.W.8, as per the Post-Mortem report, Ex.P.4, found three injuries on the deceased. First two injuries are the ligature marks found on the neck and the third injury is a bruise on the right thigh. The Doctor has not found any injury, as claimed by P.W.1, on the neck of the deceased. It is admitted by the Doctor, P.W.8 that the R.D.O., P.W.12, has not mentioned anything about the third injury in his report. It is further relevant to note that the Doctor, P.W.8, is not able to say about the age of the third injury. Therefore, even on the basis of the third injury said to have been found on the right thigh, it cannot be stated that such injury was caused by some persons much less the accused in this case. Therefore, even this piece of circumstance is not helpful to advance the case of the prosecution.
16. The third circumstantial evidence is the evidence of the neighbours, P.Ws.2 and 3. It is claimed by P.W.1 that P.Ws.2 and 3, the neighbours, of the deceased informed her that on the date of occurrence, the accused 1 to 3 quarrelled with the deceased questioning her conduct about her visiting to the house of P.W.1. But the undisputed fact remains that neither P.W.2 nor P.W.3 whispered a word about any quarrel between the accused and the deceased regarding the visit of the deceased to the house of P.W.1. It is stated by P.W.2 that on the previous day of the occurrence at 9.30 a.m., she heard shouting from the house of A-1. It is further stated by her that she heard shouting of the deceased and her husband, A-2. It is admitted by P.W.2 even this statement was not given by her during her examination by the police. Further, P.W.3 also simply stated that she heard the shouting from the house of the accused on the previous day of the occurrence i.e. on 26.09.2003 at 9.00 a.m. She has not stated anything about the reason for the shouting. She has stated that she was examined by the police three days after the occurrence. Therefore, the evidence of P.Ws.2 and 3 is also not helpful to the case of the prosecution.
17. The fourth circumstance relied by the prosecution is the report of the R.D.O., P.W.12 under Ex.P.10 and Ex.P.12. It is relevant to be noted that the first report of the R.D.O., is dated 27.09.2003 and the second report is also dated 27.09.2003 which was signed by the R.D.O., P.W.12 on 28.09.2003. In the first report, Ex.P.10, the statements of the witnesses viz., the parents and sister (P.W.1) of the deceased and accused 1 to 3 and other statements of the witnesses incorporated. The parents of the deceased categorically stated that the deceased said to have committed suicide. It is also categorically stated by them that there is no demand of dowry or the deceased was subjected to any cruel treatment by the accused. They have also categorically stated that A- 1 to A-3 are not responsible for the death of the deceased and they are not suspecting anyone. Only in the second report, Ex.P.12, R.D.O., P.W.12 raised a suspicion that this is not a case of suicide and the deceased might have been murdered by some one by kicking and thereafter hanging her after the death. It is further stated by P.W.12 that there is a suspicion that A-1, father-in-law, A-3, mother-in-law of the deceased and the deceased sister's husband's maternal uncle, A-4 might have assaulted and caused the death of the deceased. There is absolutely no materials available on record to raise such suspicion in this case and this is only the product of the invention of the imagination of the R.D.O., P.W.12. However, it is well settled that the suspicion, however, grave cannot take the place of legal proof. Therefore, this circumstance also not helpful to the case of the prosecution to connect any of the accused much less A-1 with the alleged offence of murder.
18. The fifth circumstantial evidence relied by the prosecution is the medical evidence given by the Doctor, P.W.8, who has conducted post-mortem. It is relevant to be noted that P.W.8 has not able to give the opinion immediately after conducting the post-mortem. In the first report, Ex.P.4, the Doctor, P.W.8 simply stated that the deceased would appear to have died of 36 to 48 hours prior to post-mortem. The Doctor, P.W.8, reserved the final opinion pending report of the chemical analysis as he has sent the viscera for chemical analysis and after receiving the report of the chemical examination, the Doctor, P.W.8 has given the final opinion to the effect that the deceased died due to asphyxia due to strangulation. The chemical examination report, Ex.P.5 only ruled out the consumption of poison, as it is reported that in the examination of the items 1 to 5 viz., Stomach contents, intestine contents, liver, kidney and preservative (sodium chloride), poison has not deducted. It is further relevant to be noted that the Doctor, P.W.8, has not given any reason for arriving at the conclusion that this is a case of strangulation. The Post- Mortem Certificates, Ex.P.4 and Ex.P.6 disclose that the hyoid bone found to be intact and there is no other symptoms of strangulation said to have been found by the Doctor. The Hon'ble Supreme Court of India has held in MAIN PAL VS. STATE OF HARYANA reported in AIR 2004 SC 2158 that, "The opinion of the doctor cannot have any binding force and cannot be said to be the last word on what he deposes or meant for implicit acceptance. On the other hand, his evidence is liable to be sifted, analysed and tested". Therefore, the opinion of the Doctor, P.W.8 cannot considered to be the conclusive proof of strangulation as claimed by the prosecution in view of the overwhelming materials available on record to show that this is a case of suicide. As already pointed out, the parents of the deceased categorically stated that A-1 to A-3 are not responsible for the death of the deceased and further P.W.1, none else than the sister of the deceased stated in her earliest version before P.W.12, R.D.O., that her sister, the deceased, committed suicide. P.W.1 also re-iterated the same version even in her report, Ex.P.1 to the effect that the deceased has committed suicide. Even assuming and if not admitting that this is a case of strangulation and the deceased died due to homicidal violence, there is absolutely no materials available on record to show that the deceased died only at the hands of the accused much less at the hands of A-1/the appellant herein.
19. The last but not the least circumstance relied by the prosecution is the presence of the first accused at his house with the body of the deceased. The prosecution heavily placed reliance on this circumstance. It is pertinent to be noted that the second accused, husband of the deceased, has come forward with the version at the earliest point of time viz., during the inquest conducted by the R.D.O., P.W.12 that on the date of occurrence i.e. on 26.09.2003 at 10.15 a.m., he left for his business work and his father, A-1, also left at the same time for the purchase of vegetables. The first accused also categorically stated to the R.D.O., P.W.12, that on the date of occurrence, he left the house at 10.15 a.m. for the purchase of vegetables and on his return after 20 minutes he found the front door of the house was locked and he heard the crying of the child and thereafter went to the backside of the house and also found even that door was also locked and thereafter he broke open the door and found the deceased hanging and thereafter he has cut the rope and laid the deceased on the floor. It is further stated by A-1 that thereafter his son A-2 brought the Doctor, P.W.7 and the Doctor declared the deceased already died. This version of the first accused is very much evident from the perusal of the report, Ex.P.12 of the R.D.O., P.W.12. This version of A-1 is also probabilised by the categorical admission of the Investigating Officer, P.W.14 that while he went to the scene of occurrence, he found the back door of the house was broken and the witnesses informed him that it was broken only by A-1 with a view to save his daughter-in-law, who was hanging inside the house. But unfortunately, the prosecution has not chosen to examine the witnesses who have informed the Investigating Officer, P.W.14, as stated above, and this Court left with no other alternative except to draw adverse inference against the prosecution for withholding the material witnesses in this case under Section 114 (g) of the Evidence Act. Therefore, the first accused has come forward with reasonable and probable explanation in respect of his alleged presence at the time of the occurrence.
20. Even assuming and if not admitting that the first accused/appellant herein was present in the house at the time of the occurrence, it cannot be stated that the prosecution has proved its case against the first accused without any further supporting materials or circumstances unerringly point the guilt of the first accused.
21. It is well settled by a catena of decisions of the Hon'ble Supreme Court that mere presence of the accused at the scene and at the time of occurrence is itself not sufficient to prove the guilt.
22. The Hon'ble Supreme Court has held in R.RAJENDRAN NAIR VS. STATE OF KERALA reported in 1998 SCC (CRI.) 254 that, "In our considered view the most incriminating circumstances alleged against the appellant was that when the hanging took place the appellant was in his house and that nobody else was there. We searched in vain for the evidence in support thereof but found not an iota of it. The evidence on record only indicates that after assaulting the deceased - as a result of which she became unconscious - the appellant left the house along with his daughter at 8.00 pm.and came back home sometime later. While according to the prosecution the appellant came at a point of time when his wife was still alive, his version, as noticed earlier, was that when he came back he found her hanging. His further version was the he untied the knot of the saree which she used as the ligature and brought her down. In absence of any evidence to prove that the deceased was alive when the appellant came back his version cannot be rejected altogether. For an individual to hang a living person (who would certainly make all possible efforts to extricate himself) after lifting him to a certain height seems to be rather improbable. In absence of any evidence that the deceased continued to remain unconscious till she was allegedly strangulated we are unable to accept the prosecution story of hanging. As regards the story of electrocution falsely circulated by the appellant, we also find that there is no evidence. The other circumstances mentioned above do not, in our opinion, unmistakably point towards the guilt of the appellant".
23. In yet another decision, the Hon'ble Supreme Court in MOHD. ZAHID v. STATE OF T.N. reported in 1999 (6) S.C.C., 120 has held as follows:
"Assuming that the evidence of P.Ws.1 to 7 can be accepted by the courts, it would only conclude that the appellant had a motive to kill Jabeena, but then it could also give a reason for P.Ws.1 to 7 to depose falsely against the appellant, in view of the tragic death of a loved one. Motive being a double- edged weapon, could cut both ways - helping or harming both the prosecution and the defence. Hence, we are of the considered view that if we are unable to place reliance on the evidence of P.W.8, then the evidence of P.W.1 to 7 will not be sufficient to convict the appellant of the prosecution charge. 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."
Therefore, even this piece of circumstance relied by the prosecution is not helpful to advance the prosecution case. As stated above, the prosecution case suffers from serious infirmities and inherent improbabilities rendering the entire prosecution case as highly doubtful. The chain of circumstantial evidence in this case is not so complete as to be consistent with the hypothesis of the guilt of the appellant.
24. For the foregoing reasons, the appeal is allowed. The conviction and sentence imposed on the appellant/accused are set aside and the appellant/accused is ordered to be released forthwith unless and otherwise he is required in any other case. Bail bond if any executed, stands cancelled. Fine amount paid, if any, is directed to be refunded to the appellant.
Sai/gg