Madras High Court
Pappannan @ Pachiannan @ Duraian @ ... vs State Of Tamil Nadu, Rep. By Inspector Of ... on 13 September, 2004
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam, S.R. Singharavelu
JUDGMENT M. Karpagavinayagam, J.
1. Pappannan @ Pachiannan @ Duraian @ Duraisamy, the appellant herein was convicted for the offences under Sections 302 and 201 IPC and sentenced to undergo life imprisonment and three years rigorous imprisonment respectively. The sentences imposed on the appellant/accused were ordered to run concurrently. Challenging the said judgment of conviction, this appeal has been filed.
2. The facts in brief leading to conviction are as follows:
(a) The deceased Selvi got married as second wife to her husband. She was able to live with him only for eight days. As he deserted her, she came and settled at her parents' house at Sellipalayam. The accused is a resident of Kosanam village, which is nearby.
(b) In course of time, the accused developed illicit intimacy with the deceased. Since the deceased Selvi was not allowed to stay in her parents' house, as she developed illicit intimacy with the accused, the deceased came and joined her junior paternal uncle, namely P.W.6 K.Palanisamy and stayed there.
(c) In the meantime, she became pregnant. Therefore, both the deceased and accused left the Sellipalayam village in order to consult a Doctor to have abortion. They went and approached P.W.8 Thangamuthu, a Lab-Technician. He advised them to go to a private Doctor.
(d) Accordingly, both of them came to P.W.3 Dr.Lakshmanan and requested him to cause abortion. On testing, P.W.3 found out that the deceased was seven months' pregnant and therefore, he advised that she should not be subjected to abortion.
(e) Then, they came to the house of P.W.7 Padmavathi, a friend of the deceased. The deceased only was allowed to stay for one day in the house. After leaving the deceased in the house of P.W.7, the accused left.
(f) On 27.12.1999 at about 7.00 a.m., P.W.2 K.N.Palanisamy, a resident of Malaiyadipudur village, went for answering nature's call. At that time, he smelt a bad smell from the Well and on peeping into the Well, he found a woman body floating. Immediately, he informed the same to P.W.1 Palanisamy, the Village Administrative Officer. P.W.1 V.A.O. came to the Well and saw the dead body floating. Then, he went to Sathyamangalam Police Station and lodged Ex.P-1 complaint.
(g) P.W.17 Head Constable registered a case under Section 174 Cr.P.C. for suspicious death. On 27.12.1999, P.W.18 Sub-Inspector of Police obtained the copy of the F.I.R. and went to the scene. He prepared observation mahazar and rough sketch and conducted inquest. During the couse of inquest, he entertained a suspicion that either the deceased would have died of suicide or somebody would have committed the murder.
(h) On the very same day, P.W.14 Doctor came to the spot as per the requisition and conducted post-mortem. Ex.P-9 is the post-mortem certificate. P.W.19 Inspector of Police, on getting the case diary, sent the altered F.I.R. for the offence under Section 302 IPC.
(i) On 29.12.1999, P.W.19 Inspector of Police arrested the accused and recovered the polythene bag containing poison and also examined the witnesses who identified the accused. He also recovered M.O.5 gold chain from P.W.9 Karnan @ Karunakaran, with whom the said chain was pledged by the accused.
(j) P.W.20, the successor of P.W.19, after examining the other witnesses, filed the charge sheet against the accused for the offences under Sections 302 and 201 IPC.
(k) During the course of trial, P.Ws.1 to 20 were examined, Exs.P-1 to P-24 were filed and M.Os.1 to 12 were marked.
(l) Ex.D-1, the signature of P.W.9 was marked on the side of the defence.
(m) When the accused was questioned under Section 313 Cr.P.C., he pleaded innocence.
(n) After analysing the materials available on record, the trial Court accepted the case of the prosecution and convicted the accused for the offences under Sections 302 and 201 IPC and sentenced him as stated above. Hence, this appeal.
3. Mr.K.Soundara Rajan, learned counsel for the appellant would take us through the entire evidence and contend that the circumstantial evidence available in this case would not connect the accused with the crime and as such, they are insufficient to hold that the accused was guilty and consequently, the accused is entitled to be acquitted on 'benefit of doubt'.
4. We have heard Mr.E.Raja, learned Additional Public Prosecutor in regard to the submissions made by learned counsel for the appellant.
5. We have given our thoughtful consideration to the submissions made by learned counsel for the parties.
6. Admittedly, there is no eye-witness. The entire case would hinge upon the circumstantial evidence.
7. According to the prosecution, the accused developed illicit intimacy with the deceased, due to which, the deceased conceived. In order to abort the pregnancy, she was taken by the accused to a Doctor, who refused to cause abortion on the reason that the foetus in the womb was seven months old. Thereafter, the accused wanted to get rid of the deceased once for all and therefore, he compelled her to consume poison and when she tried to escape, the accused chased her and strangulated her to death and thereafter, the dead body was thrown into the Well after tying her legs with cloth.
8. In order to prove its case, the prosecution has adduced the following circumstantial pieces of evidence:
(i) P.W.8 Thangamuthu, the Lab-Technician saw the deceased in the company of the accused, who approached P.W.8 to help for causing abortion.
(ii) P.W.3 Dr.Lakshmaman would speak about the examination of the deceased. He found that she was pregnant having seven months old foetus in the womb and advised both the deceased and the accused not to cause abortion.
(iii) P.W.7 Padmavathi, the friend of the deceased, would speak about the deceased coming over to her house and the stay of the deceased for one day in her house.
(iv) After the occurrence, M.O.5 chain belonging to the deceased was pledged by the accused with P.W.9, who gave Rs.1,500/- and the same was also recovered from him by P.W.19 Inspector of Police.
On the abovesaid circumstances, the trial Court believed the prosecution case and convicted the accused as stated above.
9. On going through the entire evidence available on record, we are to conclude that these circumstances would not be sufficient to connect the accused with the crime in question.
10. At the outset, it shall be stated that P.W.14 Doctor who conducted post-mortem on the body of the deceased on 27.12.1999, was of clear opinion that the cause of death could not be given, as the body was in a decomposed state.
11. Though it is the case of the prosecution that the death was due to strangulation by the accused, Ex.P-15, the report containing the opinion about the hyoid bone, would show that there was no fracture in the hyoid bone. So, in the absence of the opinion of the Doctor with reference to the cause of death, we are unable to accept the case of the prosecution that the deceased was done to death only by strangulation by the accused.
12. It is also to be noticed that the identity of the deceased has not been clearly established in this case. According to the prosecution, on 27.12.1999, the body was removed from the Well and the clothes of the deceased were recovered and immediately thereafter, post-mortem was conducted and the body was disposed of. Only on 28.12.1999, P.W.6, the junior paternal uncle of the deceased came to the Police Station after seeing the newspaper and identified the apparels stating that they belonged to the deceased.
13. Admittedly, the body was not identified by P.W.6, since, in the meantime, the body was disposed of. Further, P.W.19 Inspector of Police would state that he received a photo of the deceased from P.W.6 and the brother of the deceased. But this statement is not supported by P.W.20, his successor, who would state that no photo was available in the case diary.
14. Admittedly, the super-imposition test has not been conducted. There is no reason as to why the body was disposed of even before P.W.6 comes to the Police Station to identify the dead body. In such circumstances, we are unable to come to the conclusion that the body of the deceased would belong to Selvi.
15. In this context, yet another aspect is to be noted. According to prosecution, M.O.5 gold chain belonged to the deceased. The evidence of P.W.19 Inspector of Police and P.W.6, the junior paternal uncle of the deceased, would show that when the deceased left the village, she was wearing M.O.5. Further, it is the case of the prosecution that M.O.5 was recovered from P.W.9 with whom it was pledged, at the instance of the accused. The prosecution wants to show the recovery as admissible under Section 27 of the Indian Evidence Act. In our view, this cannot be admitted under Section 27 of the Indian Evidence Act, because, M.O.5 had not been identified by the accused. As such, it cannot be held that it is the recovery in pursuance of his confession.
16. Though the accused identified the house of P.W.9, even according to the prosecution, when P.W.19 Inspector of Police along with the accused, went to the house of P.W.9, P.W.9 was not available. As a matter of fact, even before P.W.9 came to the Police Station for handing over M.O.5 chain, the accused was sent for remand. Therefore, there is no connecting link for the accused with the chain, as there is no acceptable material to show that M.O.5 was the chain belonging to the deceased and the said chain was pledged by the accused with P.W.9.
17. It is settled law that in a case of circumstantial evidence, the prosecution has to establish all the circumstances clearly and clinchingly, beyond reasonable doubt. Furthermore, the circumstances from which the inference of guilt is drawn, must form a complete chain and they must be such that they unerringly point to the guilt of the accused and the accused alone, without giving room for any hypothesis of the innocence of the accused.
18. As there are no links forming the complete chain in the abovesaid circumstantial evidence, we are not inclined to accept the case of the prosecution and consequently, we have to set aside the conviction and sentence imposed on the appellant/accused.
19. Hence, the appeal is allowed, setting aside the conviction and sentence imposed on the appellant/accused and he is acquitted of the charges. The appellant/accused is directed to be released forthwith, unless he is required in connection with any other case.