Madras High Court
Shanthi vs State By on 21 November, 2017
Author: M.Sathyanarayanan
Bench: M.Sathyanarayanan, N.Seshasayee
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.11.2017 CORAM: THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN AND THE HONOURABLE MR. JUSTICE N.SESHASAYEE Criminal Appeal No.230 of 2017 Shanthi .. Appellant / Accused No.2 Vs. State by The Inspector of Police Kullanchavadi Police Station, Cuddalore District. (In Crime No.204 of 2013) .. Respondent Appeal filed under section 374[2] of Code of Criminal Procedure, to call for the records and set aside the judgment and conviction imposed by the District and Sessions Judge, Mahila Court, Cuddalore, in S.C.No.27 of 2014 dated 21.05.2015. For Appellant : Mr.P.Palanikumar For Respondent : Mr.R.Ravichandran, GA[Crl.Side] JUDGMENT
[Judgment of the Court was delivered by M.SATHYANARAYANAN, J.,] The appellant is the 2nd accused in SC.No.27/2014 on the file of the learned Sessions Judge, Mahila Court, Cuddalore. The 1st accused namely Viji @ Vijayakandh, is her husband. Both accused were charged for the commission of the offence under sections 302 and 397 of IPC. The Trial Court vide impugned Judgment dated 21.05.2015, had convicted both of them for the above said offences and imposed a sentence of Rigorous Imprisonment for life to each of them for commission of offence under section 302 of IPC and to pay a fine of Rs.1,000/- each, with a default sentence of simple imprisonment for commission of offence under Section 302 IPC and sentenced them to undergo ten years rigorous imprisonment. The Trial Court ordered the sentences of imprisonment to run concurrently and they are also entitled to set-off under Section 428 of Cr.P.C.
2 The Accused No.2 who is the wife of accused No.1, challenging the legality of the conviction and sentence awarded by the Trial Cout vide Judgment dated 21.05.2015, has filed this criminal appeal.
3 The facts leading to the filing of this Criminal Appeal and which are necessary for the disposal of this appeal, briefly narrated, are as follows:
3.1 The Accused No.1 and 2 are husband and wife and they are related to one Samatha who was aged about 64 years, residing at Veeran Koil Street, Periyan Colony, Anukampattu. Samatha is the mother of Rajamani (PW1) and about a month prior to the date of occurrence on 25.08.2013, the son of Rajamani (PW1) namely Kumaresan died and in connection with the death ceremony, both the accused went there and stayed in the house of Malar (PW4) who is the elder sister of Rajamani.
3.2 On 25.08.2013, in the early morning hours at about 3.30 a.m., when samatha was sleeping in the house of her daughter Malar (PW4), both the accused with the motive of stealing 4 gms of Mangalasuthra and 2gms of gold balls (Thalli weighing 2 gms attached to Mangalasuthra) went near Samatha and A1 said to have strangled her neck from the rear side and also smothered her mouth with an hand and also kicker her on the left side of the head with legs and the appellant / A2, pressed her leg and at that time, her husband/A1 took the nylon rope (MO4) and put it around the neck of Samatha, strangled her and as a consequence, she died on the spot.
3.3 PW1, daughter of the deceased, lodged a complaint under Ex.P1 to PW12, Sub-Inspector of Police of Kullanchavadi Police Station and would state among other things, that her mother in connection with the death of his son, came to her house and she and her husband went out in connection with their work and at that time, they handed over 2 gms ring, 2 chains weighing 4 gms, Mangalasuthra of his Daughter-in-law weighing 5 gms, 2 small gold balls attached to the Thali (weighing 1 gms each) and 2 gold coins (1 gms each) totally 17 gms and also a sum of Rs.10,000/- by putting in a small pouch to her mother Samatha (deceased) and at that time, A1 and A2 were present at the time of handing over the jeweleries and at about 9.00 p.m. on 24.08.2013, her elder sister Malar (PW4) went out of town and P.W.1 provided food to her mother [deceased] and A1 and A2 and thereafter, she went to sleep and at about 3.30 a.m. on 25.08.2013 and when she went to answer the nature's call, she heard some mourning sound and when she raised the query about the said sound, A1- Viji @ Vijayakanth who was staying with her mother in the house of PW4 had stated that Samatha is blabbering something in her sleep and sometime thereafter at about 4.00 a.m., A1 and A2/appellant went out urgently and PW1 asked her as to where they are going and A1 had stated that his wife [appellant/A2] is going to answer the nature's call and that he is accompanying her and sometime thereafter, both PW1 and her husband left to carryout the work of sugarcane cutting and at about 10.00 a.m. on the same day Aishwarya (Daughter-in-law of PW1)/PW3, telephonically informed that her grandmother/mother of P.W.1, was lying dead and immediately PW1 and her husband went to the house and saw the body and nearby the body, MO4-rope was found and it was used for drying cloths.
3.4 PW1 ad PW2 checked her mother and found a ligature mark on the neck and when she checked up the pouch, they found jewels and cash were missing. PW1 wept and came out and she was informed by one Prabhu (PW5) and PW6 (Jayasundar) and Muthulakshmi (Wife of Jayasundar) that they saw A1 and A2 went on the early morning at about 4am along with the child urgently. P.W.1 further stated in the complaint marked as Ex.P1 that A1 and A2, apprehending with stealing of jewels and cash from samatha would be disclosed, had strangled and murdered her.
3.5 P.W.12 after receipt of Ex.P1 compliant, has registered the FIR in Crime 204 of 2013 at about 17.00 hours on 25.08.2013 for the commission of offences under Section 380 and 302 of IPC and forwarded the original complaint and FIR to the concerned Judicial Magistrate. The printed FIR was marked as Ex.P7.
3.6 PW13 at the relevant point of time, was the Station House Officer of Kulanchavadi Police Station and on receipt of the FIR registered by PW12, took up the investigation and went to the scene of occurrence and in the presence of Boopalan and PW7/Senthil, prepared the observation Mahazar marked as Ex.P2 and in the Rough Sketch (Ex.P8) and in the presence of the same witness, has recovered MO4 - an orange colour nylon rope measuring 11 feet and 6cm and MO5-saffron colour with gold outlined pouch and yet another white colour small pouch-MO6 under the cover of Mahazar [Ex.P.3] and obtained their signatures.
3.7 PW13 recorded the submissions of PW1, PW2, PW3, Boopalan and PW7 under Section 161[3] of Cr.PC and on 26.08.2013, PW13 went to Mundiyanpakkam Government Hospital and in the presence of panchayatars, conducted the inquest and the Inquest Report was marked as Ex.P9 and thereafter, made a requisition for conducting the postmortem.
3.8 PW11 on receipt of the body along with the requisition at about 1.00 pm on 26.08.2013, had commenced the post postmortem at about 1.30 pm on the same day and noted the following features :
I.External Examination :-
1.All finger nails cyanised. Face congested and swollen. Patchy peeling of enticles over chest and abdomen. Tongue protuding between the teeth to a length of 3cm. Marbling present over (n.c) of both shoulders.
2. Transverse ligature mark of length 18 cm, breadth 1-1.5cm seen over front & left side of neck upper border is 8cm below chin, Lower border 7cm above supra sternal notch. 3. Contusions seen over (1) above medical end of right eyebrow -0.5cm x 0.5cm x 0.5cm (b) Right cheek 1cm x 1cm x 1cm (c) above left eyebrow lateral end 2 in number end 0.5cm x 0.5cm x 0.5cm (e) left cheek 0.5cm x 0.5cm x 0.5cm (F) Left side of mouth (1) angle of the mouth 0.5cm x 0.5cm x 0.5cm (2) above upper lip 3cm x 1cmx 1cm (3) below angle of the mouth 2cm x 1cm x 1cm(g) angle of left mandible 3cm x 1cmx1cm(h) front of nect, middle 1/3cm x 2cm x 1cm x 1cm right side (i) back of neck 3cm x 0.5cm x0.5cm (j) Left front temporal region of head 10cm x 9cm x 2cm.
II. On opening of the Head :
Scalp : Contused in the under surface over left fronto temporal parietal region.
Vault : Tissue fracture of length 8cm over left temporal bone Membranes intact.
Brain : Normal in size subdural haemorrhage seen over left fronto temporal area cut section congested.
Base : Intact.
III. On opening of the Thorax :
Rib cage intact. Heart normal size.
Soft cut section : great vessels, valves coronaries intact.
Chambers :empty Both lungs soft multiple (n.c) haemorrhages seen over the (n.c) Tissues. Cut sections congested.
IV. On opening of the Abdomen:
Stomach : About 500 gm yellow coloured cooked free particles partially digested mucosa intact.
Liver, Spleen and both kidneys : Normal in size, soft.
Cut section congested. Bladder : empty. Uters 6cm x 4cm x 2cm. Cut section : cavity empty.
V.Pelvis and Spinal Column : intact VI. On opening of the Neck : Contusion of middle 1/3rd of left sterno muscle. Hyoid bone & thyroid cartilage intact. Mucosa congested.
3.9 PW.11 reserved the opinion as to the cause of death and given the opinion that the death would have occurred about 36 to 48 hours prior to autopsy. She had given the final opinion stating that deceased would appeared to have been died due to combined effects of ligature strangulation and head injuries sustained.
3.10 PW13, continued with the investigation and on receipt of secret information, he went to Cuddalore Bus stand on 29.08.2013 at about 6.00 a.m. and effected the arrest of A1 and A2 and A1-Viji @ Vijayakanth voluntarily came forward to give the confession statement and it was recorded in the presence Narayan [PW8] and Devaraj [PW9] and as per the admissible portion of the confession statement, marked as Ex.P.10, A1 identified the shop in which the stolen jewels were sold. On 29.08.2013 along with the accused, PW13 went to Villupuram and A1 identified the shop under the name and style of Krishna Jewellery and the investigating officer examined one Soganlal (PW10), owner of Krishna Jewellery and one Subash, and they have stated that on 29.08.2013 at about 9.30 a.m., the accused came along with their child and told them that they are not having any money to buy milk for their child and therefore, produced the Mangalasuthra weighing 4 gms and 2 small gold balls and sold the same and received a sum of Rs.5,700/- and for that, PW10 has not issued any receipt. The said two articles were recovered under the cover of Mahazar under Ex.P4 and marked as MO1 and MO2 and both articles were sent under Form 95 to the Judicial Magistrate.
3.11 PW13 has examined PW10, Subash and Constable Balaraman, Head Constable Murugan and PW11 and Geethanjali, the doctor who conducted autopsy and recorded their statements and after obtaining the Postmortem Certificate, he completed the investigation and filed the final report / charge sheet, charging A1 for the commission of the offences under sections 392, 302 of IPC and charging A2 for the commission of the offences under section 342, 392, 302 read with 34 of IPC, before the Committal Court.
3.12 The Court of Judicial Magistrate III, Cuddalore, took the charge sheet on file in PRC No.30 of 2013 and issued summons to both the accused and on their appearance, furnished them with the copies of documents under Section 207 of Cr.P.C and having found that the case is exclusively tried by the Court of Sessions, committed the same to the Principal Sessions Judge, who in turn, made over the case to the Mahila Court, Cuddalore.
3.13 The Trial Court on appearance of the accused had framed charges against A1 and A2 under Section 302 as well as 397 of IPC and questioned them u/s.313[1][b] Cr.P.C. with regard to the incriminating circumstances made out against them in the evidences rendered by the prosecution and both the accused pleaded not guilty to the charges framed against them and on behalf of both accused, no oral and documentary evidence let in.
3.14 The prosecution in order to sustain their case, examined P.Ws.1 to 13 and marked Exs.P.1 to 10 as well as M.Os.1 to 6.
3.15 The Trial Court, on consideration and appreciation of oral and documentary evidences and other materials, had convicted both the accused for the commission of the offences u/s.397 and 302 IPC and sentenced them as stated above and challenging the legality of the said conviction and sentence, A2 has preferred this appeal.
4 The learned counsel appearing for the appellant / A2 would submit that the case of the prosecution rests upon the circumstantial evidence and the appellant / A2 has been implicated merely on account of the fact that she happens to be the wife of A1 namely Viji @ Vijayakandh. It is a further submission of the learned counsel appearing for the appellant / A2 that even for the sake of arguments that both the accused were seen in the company of the deceased Samatha on the night hours on 25.08.2013, the prosecution miserably failed to prove that A2 had stolen the jewels and cash and she also played the vital role in commission of offence of murder. It is further contended by the learned counsel appearing for the appellant / A2 ever as per the version of the prosecution, her husband (A1) has been attributed with the fatal overt act and the role played by the appellant/A2 was that she caught hold of legs of the victim / deceased and the Postmortem Report marked as Ex.P6 coupled with the evidence of PW11 who conducted the autopsy, has not noted down any injury on contusion on the leg of the victim and as such, the implication of appellant /A2 for the commission of offence is per se unsustainable. It is also the primordial submission of the learned counsel appearing for the appellant / A2 that the prosecution has failed to prove as to the selling of stolen jewels to PW10/Pawn Broker and invited the attention to the testimonies and would submit that PW10 during the course of his evidence before the Court, has made very many improvements from that of the statement recorded under Section 161 (3) Cr.P.C. during investigation and the vital link as to the selling of the jewel to PW10 has not all been established by the prosecution. In sum and substance, it is the submission of the learned counsel appearing for the appellant / A2 that since the prosecution has miserably failed to prove the chain of circumstances linking her in the commission of the offence of murder and the Trial Court in any event, ought to have ordered benefit of doubt had acquitted her and hence prays for interference.
5 Per contra, Mr.R.Ravichandran, learned Government Advocate [Crl. Side] appearing for the State would submit the following circumstances projected by the prosecution:
(i) The staying of A1 and A2 with the deceased Samatha, on the date of occurrence on 25.08.2013 and fleeing away of A1 and A2 from the scene of occurrence on the early morning hours on 25.08.2013 after committing the offence.
(ii) PWs 1,2,5 and 6, saw both of them leaving the house in a hurried manner.
(iii) PW1 has spoken about the fact that when she heard the sound / mourn of the deceased and asked A1, he told her that the deceased was blabbering something in sleeping and this is also one of the circumstances to prove that he was with the deceased along with his wife.
(iv) The arrest and recovery of incriminating articles on the basis of the admissible portion of the confession statement of A1 (Ex.P10) and the selling of jewels by A1 and A2 to PW10 / Pawn Broker. It is the submission of the learned Government Advocate (Crl.Side), the prosecution through the evidence let in by it, had linked the chain of circumstances and it had led to the only inference that both the accused had committed heinous offence / crime for gain and the Trial Court on further appreciation of oral and documentary evidence and further materials, had rightly reached the conclusion of convicting and sentencing the appellant / A2 and prays for dismissal of this appeal.
6 This Court paid its best attention and anxious consideration to the rival submission and also perused the oral and documentary evidence and other materials as well as the original records.
7 The following questions raised for consideration in this appeal:
1.Whether the prosecution had proved all the circumstances leading to the commission of offences on the part of appellant / A2 along with her husband / A1?
2.Whether the reasons assigned by the Trial Court for convicting appellant / A2 are sustainable?
QUESTION NO.1:-
8 PW1 is the daughter of the deceased Samatha and wife of PW2 and as per her testimony, a month prior to the occurrence on the date of 25.08.2013, his son viz., Kumarakuru died and in connection with the death ceremony, both accused came to the house of her elder sister viz., Malar (PW4) and when PW1 asked the accused as to why they are staying in the house of P.W.4, they told her that since their house is not in a habitual condition, they came there to stay. PW1 further state that she and her husband were eking out their likelihood by cutting sugarcane and since they want to go out for the purpose of job, she handed over the cash of Rs.10,000/- along with some jewels by putting it in a pouch and handed over the same to her mother and at that time A1 and A2 were also present and her mother / deceased told A1 that he should also earn like that. PW1 would further depose that at about 9.00 p.m., she prepared and served food for her mother as well as for both the accused and went to sleep and at about 3.00 a.m. on the next day, she heard the mourning sound and when she asked A1, he told her that Samatha (Deceased) was blabbering something. PW1 came outside the house at about between 3.30 am and 3.45 am and she saw A1 was carrying his child and was going out of the rear entrance of the house of her elder sister (PW4) and A2 was preceding him. When PW1 asked A1 as to why he is leaving at this odd hour, he replied it by saying that A2 is going to answer the nature's call and he is accompanying her by way of protection. PW1 after completing the work went along with her husband for sugarcane cutting job. At about 10.00 am she was informed by her daughter-in-law (PW3) about the death of her mother and she and her husband rushed back and found that the pouch was empty and the jewels and cash given, was also stolen. PW1 made enquiry and she was informed by Prabhu (PW5), Jayasundar (PW6) and Muthulakshmi about seeing both the accused leaving the house at early morning.
9 PW1 also identified the jewels in the pouch. The testimony of PW1 has been corroborated by the evidence of her husband (PW2), PW5 and PW6. According to the prosecution, after stealing the jewels, both the accused approached PW10/Pawn Broker who was carrying on the business of running the jewel shop and both of them had represented that for procuring milk for their child, they don't have money and therefore, sold Mangalsutra and other jewels attached to it and they received a sum of Rs.5,700/-. PW10 has also identified A1 and A2 in the Court. PW13 / Investigating Officer in his evidence, has spoken about the investigation and as regards selling of jewels to PW10 and he would depose in the chief examination that A1 and A2 were taken to the Shop of PW10 on 29.08.2013 and they examined PW10 and one Subash and they told PW10 that they did not have money to procure milk for their child and accordingly sold jewels for which a sum of Rs.5700/- has been paid.
10 PW8 who was examined to speak about the arrest and recovery of MO.4 / Nylon Rope pursuant to the admissible portion of the confession statement of A1 marked as Ex.P10, has turned hostile. PW9 was also a witness to the arrest and recovery and in the chief examination, he has spoken to the said fact and in the cross examination admitted that he is related to the deceased Samatha.
11 PW10 / Jewellery Shop owner in his chief examination has spoken about the coming of A1 and A2 to his shop and attempting to sell the jewels and the receipt of Rs.5,700/- on the pretext of not having money to buy milk for their child. PW10 would further depose in the chief examination that on 29.08.2013, Police came to the shop and seized Mangalsutra and small 2 Golden Balls attached to the Thali under the cover of Mahazar [Ex.P4] and he along with his son had signed the same and he has also identified A1 and A2 in the Court. PW10 in the cross examination would state that before subscribing his signature in the Mahazar, the police has already written something and would admit that for pawning the jewels or selling the jewels, and for effecting recovery of the said jewels from his possession and custody, the police did not handover any receipt and during the course of investigation, in his statement, he did not specifically state as to which accused has handed over the jewels.
12 The Investigating Officer [P.W.13] was cross examined and in his cross examination, he would depose that A1 in his confession statement had stated that he sold 6 gms of jewels and however having stated that for the purpose of getting milk for his child he did not have money and only for that purpose, he sold the jewels. PW13 would further depose that he has not filed any document to show that PW10 was the owner of the Krishna Jewellery and denied the suggestion that PW10 did not procure any bill. PW13 also made crucial admission that he has not filed any documents to show that A1 and A2 went to the shop of PW10 and sold the jewels and that was due to the reason that PW10 told him that for selling jewels, he did not prepare any bill.
13 The prosecution through the testimonies of Pws.1,2,5 and 6 was able to prove that both the accused stayed with the Samatha (Deceased) and that on the early morning hours on the date of occurrence, have left the place hurriedly along with the child.
14 PW9 has also spoken about the arrest and recovery of the jewels in pursuant to the admissible portion of the confession statement given by A1 and the said jewels were also identified by PW1 during the course of evidence.
15 It is to be remembered at this juncture that the case of the prosecution rest upon the circumstantial evidence. The Honourable Supreme Court of India in the decision in Hanumanth Vs. State of Madhya Pradesh reported in 1952 SCR 1091 : AIR 1952 SC 343 has held that:
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposes to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. and the said decision has been uniformly followed by Apex Court in all its subsequent decisions.
16 The following conditions have to be fulfilled before the case against an accused can be said to be fully established:
(1) The circumstances form which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this court indicated that the circumstances concerned must or should and not may be established. There is not only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p.807:SCC (Cri) p.1047] certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions.
(2) 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, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) 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. 17 This Court keeping in mind the time tested legal principles regarding circumstantial evidence, carefully analysed the oral and documentary evidences and other materials.
18 The motive for the commission of murder according to the prosecution on the part of A1 and A2 is to steal the jewels and cash which were in the custody of Samatha (Deceased) / mother of PW1 and therefore, the crucial aspect is in respect of the recovery of jewels. It is also to be remembered at this juncture that as per the case of the prosecution, it was A1 / Viji @ Vijaykandh, has been attributed with fatal overt act and appellant / A2, his wife held both the legs of the deceased. It is also to be noted at this juncture, the Postmortem report marked as Ex.P6 coupled with the evidence of PW11, did not reveal anything as to any contusion or other wound found on the legs of the deceased and it is also the case of the prosecution that A1 murdered by smothering the mouth of the deceased and kicked her and thereafter, by using MO.s 3 and 4, strangled her neck and as a consequence, she died of asphyxia and there should have been a struggle on the part of the deceased to escape from the same and in order to prevent the same, A2 must have strongly held the legs and curiously \, no injuries or marks have been noted.
19 The testimony of PW10 assumes great significance and importance and it is to be remembered at this juncture that PW10 was a stranger to A1 and A2.
20 On a careful analysis of the evidence of the PW10 would disclose that both the accused came to the shop on 29.08.2013 and at about 9.00 am under the pretext of not having money to procure milk for their daughter, sold the jewels and received a sum of Rs.5,700/- towards sale consideration and he also identified both the accused in the Court. It is the settled position of law that the identification even in the Test Identification Parade is not a substantial piece of the evidence. PW10 has also identified the jewels at the time of his chief examination and in the cross examination would depose that before he has subscribed his signature in the Mahazar, the Police has written something and the Police at the time of seizing the jewels, did not seek any record as to the pawning of the jewels or selling of the jewels and not issued any receipt for seizing the jewels. PW10 also made a crucial admission that he did state anything as to which accused had handed over the jewels to him during the course of investigation. The said contradiction elicited through PW10, was put to PW13 / Investigation Officer. PW13 in the cross examination would admit that A1 in the confession statement recorded the presence of PW9, that he did not state anything about the reasons assigned for selling of jewels that is non availability of money to procure milk for their child. PW13 also made a crucial admission that both the accused went to the shop of PW10 on 29.08.2013 and sold the jewels, and for that, he did not produce any documents and however, the owner of Pawn Shop / PW10 told him that he did not prepare the bill for buying the said jewel and whereas, P.W.10 did not state anything with regard to non-preparation of the bill.
21 The circumstantial evidence let in by the prosecution mainly revolves around the role played by A1. It is the submission of the learned Government Advocate (Criminal Side) that A2 had actively participated in the commission of offence with A1 and non-signing of the recovery mahazar by PW10 cannot be taken as a fatal one to the case projected by the prosecution. As already pointed out, PW10 made a vital improvement from that of the submission recorded during investigation with regard to the purpose for which the jewels were sold and he did not specifically said as to which accused handover the jewels to him for the purpose of selling. PW13/Investigating Officer would admit that he did not seize any records as to the sale effected by the accused to PW10 and the explanation offered was that when PW10 was questioned, he told him that he did not prepare the bill for the said sale. However PW10 either in the chief examination or in the cross examination did not specifically stated that he has not prepared the bill for selling the jewels and that apart, PW13 did not seize any record as to the occupation of PW10.
22 In the decision relied on by the learned Government Advocate (Crl.side) reported in 2010 8 SCC 593 [G.Parshwanath Vs. State of Karnataka], it was observed in paragraph No.22 that the circumstantial evidence is evidence of relevant facts from which, on can, by process of intuitive reasoning, infer about the existence of fact of factum probandum. The learned Government Advocate (Crl.side) by relying upon the said decision, would submit that the circumstances projected by the prosecution would lead only to the probability that both the accused had committed the heinous offence of murder purely for gain and the infirmities pointed out in the testimony of PW10 are trivial in nature and have not shaken the strong foundation laid down by the prosecution. In the above decision relied on by the learned Government Advocate (Crl.Side), the Honourable Supreme Court has culled out the legal position regarding the circumstances evidence and it is relevant to extract Paragraphs No.23 and 24:-
23. In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact sought to be relied upon must be proved individually. However, in applying this principle a distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to proof of primary facts, the Court has to judge the evidence and decide whether that evidence proves a particular fact and if that fact is proved, the question whether that facts leads to an inference of guilt of the accused person should be considered. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the Court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The Court hereafter has to consider the effect of proved facts.
24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the Court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever, extravagant and fanciful it might be. 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, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the Court.
23 Though it is vehemently contented by the learned Government Advocate (Crl.side) that selling of jewels projected by the prosecution, has to be inferred from the facts. In the considered opinion of the Court , selling of the jewels by A2 along with A1 has not at all been proved and as already pointed out PW10 made very many improvements from that of the statement recorded during investigation and it also appears that appellant / A2 has been implicated merely for the reason that she happens to be the wife of the prime accused namely A1/husband of A1 and the vital link of disposing of the jewels on the part of A2 to PW10 has not been proved by the prosecution.
24 If the case of the prosecution rests upon circumstantial evidence, then the circumstances proved by the prosecution should be of a conclusive nature and they do not exclude the possibility of any view which can be taken rationally and reasonably. The case of the circumstantial evidence have to be dealt with greater care and by microscopic examination of the documentary and oral evidence on record and then alone the Court will be in a position to arrive at a conclusion upon proper analysis of the evidence in relation to the ingredients of the offence. The said view has been taken by the Hon'ble Supreme Court of India in the decision in Mannu Sao Vs. State of Bihar reported in 2010 [7] Scale 138.
25 This Court on a careful scrutiny and analysis of the oral and documentary evidence is of the considered view that the chain of circumstances projected by the prosecution connecting the appellant / A2 for the commission of offences for which she has been charged and convicted, are not complete. Therefore, the benefit of doubt ends in her favour. Therefore, question No.1 is answered in affirmative in favour of A2.
QUESTION No.2:-
26 In the light of the discussions and reasons assigned above, the reasons assigned by the Trial Court for convicting appellant / A2, are unsustainable and warrant interference.
27 In the result, the criminal appeal is allowed and conviction and sentence recorded by the Trial Court against appellant / A2 for the commission of offences under Sections 302 and 397 of IPC are set aside and she is acquitted of all the charges levelled against her and fine amount, if any, paid by her shall be refunded.
28 It is reported that the appellant/A2 is in jail. The appellant/A2 is acquitted of all charges levelled against her and she is directed to be set at liberty forthwith unless her presence is required in connection with any other case.
[MSNJ] [NSSJ]
21.11.2017
Internet : Yes
sk/rka
To
1.The District and Sessions Judge
Mahila Court, Cuddalore.
2The Principal District Judge
Cuddalore.
3.The Judicial Magistrate No.3,
Cuddalore.
4.The Chief Judicial Magistrate
Cuddalore.
5.The Inspector of Police
Kullanchavadi Police Station,
Cuddalore District.
6.The Superintendent
Special Prison for Women
Central Prison, Vellore.
7.The Director General of Police
Mylapore, Chennai-4.
8.The District Collector,
Cuddalore District.
9.The Public Prosecutor
High Court, Madras.
M.SATHYANARAYANAN, J.,
AND
N.SESHASAYEE, J.,
rka/sk
Crl.A.No.230/2017
21.11.2017