V.PERIYA KARUPPIAH, J.)
This appeal is directed against the judgment of the learned Additional Sessions Judge, Dharmapuri made in S.C. 339 of 2004 dated 30.03.2005. By the above said judgment the appellant who was the sole accused in Sessions Case was found guilty of offence under Sections 302 and 404 of IPC, convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for three months for the offence under Section 302 of IPC and to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for three months for offence under Section 404 of IPC
2. The brief case of the prosecution as put forth before the trial court is as follows:- P.W.2 is the grand daughter of the deceased Periyakka. The deceased was living in the house of one Raji Gounder at Thonganur Village separately. On 05.05.2004, at about 12.00 noon, P.W.2 visited the house of Periyakka and as she could not find her at the house and the door was locked, she with the help of P.W.4 removed two tiles from the roof and found the deceased Periyakkal lying dead and her body was in a decomposed state. She found that the studs with links and chain from the person of the deceased were missing. P.W.2 informed P.W.1 about the fact. P.W.1 in turn rushed to Morappur Police Station along with P.W.2. On a complaint from P.W.2 along with the report Ex.P.2 of P.W.1, the Village Administrative Officer, P.W.19, the Inspector of Police, Morapur Police Station registered a case in Cr.No. 136 of 2004 under Section 174 of Cr.P.C. He prepared the printed FIR Ex.P.23. On the next day at about 6.00 a.m. He visited the scene of occurrence, prepared the observation mahazar Ex.P.11, drew rough sketch Ex.P.26, recovered lock M.O.3, which was hanging on the latches of the door under the cover of the seizure mahazar Ex.P.3 in the presence of the attesting witnesses. Thereafter, he held inquest on the body of the deceased , prepared the inquest report Ex.P.24. Then, he sent the body of Periyakkal for post-mortem through the Head Constable along with a request Ex.P.15. The Doctor, P.W.17 upon identification and at the request of the Inspector of Police performed autopsy on the body of the deceased. At the time of post-mortem the body was highly decomposed, blebs were present all over the body, skin peeled off, hairs fallen and maggots were present. The doctor found the following features on the body of the deceased:- Internal examination:-
on opening of thorax fracture ribs present 3, 4, 5 and 6th on right side and fracture 3, 4 , 5 and 6th at left side. Heart semisolid, lungs right semisolid, cut section congested 400 grams and left semisolid and cut section congested. Liver semisolid 1500 grams and cut section congested. Kidney semisolid right, left 100 grams congested. Stomach empty. Hyoid bone fractured. He preserved the viscera for chemical analysis. Ex.P.15 is the Post-mortem Certificate. On receipt of experts' opinion on viscera and hyoid bone , he opined that the deceased would appear to have died of asphyxia due to strangulation and fracture of hyoid bones, 4 to 5 days prior to the autopsy. He issued the final opinion, Ex.16 to the above effect. After the post-mortem was over at the instance of the Head Constable P.W.15, a blouse M.O7 and a saree M.O.8 were recovered. In continuation of his investigation , P.W.19 based on the medical evidence altered the case offence to one under Sec.302 and 380 of IPC. He sent an express alteration report to the concerned Judicial Magistrate. On 07.05.2004 at about 11.00 a.m., the accused himself surrendered before P.W.19 at the police station and confessed to have murdered the deceased Periyakkal. P.W.19 recorded the voluntary confession of the accused in the presence of P.W.7, the Village Administrative Officer and another. Pursuant to the admissible portion of the confession of the accused he recovered a sum of Rs.2,020/-under Form-95 and thereafter rushed to the house of the deceased and recovered a key M.O.4 from a nearby water tank and also silk wire, M.O.5 from the pot in which it was concealed under the cover of mahazars Ex.P.4 and and Ex.P5 respectively. Thereafter, at the instance of the accused, he recovered gold chain M.O.1 and studs with links, M.O.2 under the cover of the mahazars Ex.P.6 and Ex.P.7 respectively from P.Ws.8 and 9. Ex.P.21 is the viscera report. Ex.P.22 is the report on hyoid bone. P.W.19 after following all other formalities and upon completion of his investigation on 06.08.2004 laid the final report under Sections 302 and 404 of IPC against the appellant/accused
3. In order to substantiate the charges, prosecution has examined 19 witnesses and marked 26 exhibits and produced 8 material objects.
4. When the accused was questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against him, he totally denied them as false. On the side of the defence no one was examined and no document was marked. However, learned trial Judge found the accused guilty of the offences, convicted and sentenced him as stated earlier.
5. Mr.N.Sudharsan, learned counsel appearing for the appellant/accused would submit in his argument that the conviction and sentenced based on the circumstantial evidence is against law. The date of occurrence as spoken to by P.W.2, the grand daughter of the deceased Periyakka is contrary to the evidence of other witnesses and she did not speak about the fact that the deceased Periyakka used to wear gold jewels on her person. In fact, P.W.2 has admitted in her evidence that she did not mention anything about the missing jewels in the complaint when spoken to P.W.1, the Village Administrate Officer. The other witnesses who spoke about the wearing of jewels by the deceased were not clinchingly spoken to about the jewellery worn by the deceased. Therefore, he would submit that the crime committed by some other person has wrongly been prosecuted by the police against the accused and the appellant/ accused is innocent.
6. The learned counsel would further submit that the last seen theory as spoken to by P.W.2 and to other witnesses are contrary to each other and therefore, circumstances relied upon by the trial court cannot be sustained. The learned counsel would further submit that as far as the recovery is concerned, the Investigating Officer, P.W.19 would categorically admit that the premises in which the deceased was living did not have any water tank and as the testimony of attesting witness to the seizure mahazar would go a long way to show that the accused had discovered the key at the premises from the water tank and handed it over to the investigating Officer. This would lead a major contradiction to disbelieve the case of the prosecution. Further, the evidence as to the recovery said to have been done from P.W.8 and P.W.9 who are pawn brokers, with whom the accused had allegedly pledged the stolen jewellery are not reliable since, they did not speak about the identity of the accused and the pledging of the articles by the accused. Further, there is no connecting evidence that the deceased was lastly seen wearing those jewels. Therefore, he would submit that the alleged recovery of jewels at the instance of the accused cannot also be relied upon. Further, the production of the receipt by the pawn broker, P.W.8 himself is not in accordance with law. Normally the original receipt could be available only with the person who allegedly pledged the articles. Strangely, such receipt was produced by the pawn broker by himself during the course of investigation. Similarly, the evidence of the other pawn broker namely P.W.9 as to the recovery of M.o.2 is also unbelievable in view of the fact that he only produced xerox copy of a pawn ticket.
7. The learned counsel would further submit that there is a delay in reaching the FIR in court which creates a suspicion over the registering of the FIR and therefore, the benefit of doubt should be given infavour of the appellant/accused. He would further submit that the Doctor who conducted postmortem had stated that the death would have occurred 4 -5 days prior to the post-mortem and the same did not correlate with the evidence of other witnesses. Apart from that brown wire as found by the Doctor, who conducted post-mortem were not explained by the prosecution witnesses and the absence of any injury found by the Doctor around the neck of the dead body of Periyakkal would also room large to the fact that the injuries were not inflicted around the neck of the deceased as put forth by the prosecution.
8. The learned counsel would therefore, submit that none of the circumstances put forth by the prosecution has been proved beyond any reasonable doubt and as such the conviction and sentenced passed by the trial judge believing the circumstances put forth by the prosecution cannot be sustained. Ultimately, he stressed that the appellant/accused is entitled to the benefit of doubt and consequently for acquittal.
9. Per contra Mr.V.R.Balasubramanian, learned Additional Public Prosecutor in his argument would submit that the evidence of the prosecution witnesses had completely proved the fact of the murder of Periyakkal by the accused and the other circumstances would further go a long way to show that conviction and sentence passed by the learned trial Judge is justifiable and the same is not required any interference. He would also draw our attention to the evidence of P.W.2, the grand daughter of the deceased to the fact that she has explained that she had lastly seen her grand mother Periyakkal on last Sunday prior to the occurrence and therefore, she has explained that she had seen her grand mother on 2.5.2004 which falls on Sunday and not on 04.05.2005 as spoken by her in her chief examination which is purely a mistake on the part of P.W.2. The evidence of the other prosecution witnesses would also go a long way to show that the deceased Periyakkal was lastly seen by the witnesses only on Sunday i.e., on 2.5.2004. Therefore, the evidence as spoken by P.W.2 to the effect that she had seen her grand mother only on 04.05.2004 is purely a mistake. Even though P.W.1 was treated as hostile witness, his evidence is in favour of the prosecution and his evidence has been corroborated by the evidence of P.Ws.2 to 4 to the effect that the house of the deceased Periyakkal was found locked for 3 days and when they opened the tiles on roof, they felt foul smell emanating from the house and thereafter, they opened the door to see the decomposed body of Periyakkal and immediately complaint was given by P.W.2 to P.W.1, the Village Administrative Officer, who in turn filed the same before the police in Ex.P.1. It is also spoken by P.W.1 that his report was also submitted at the time of giving Ex.P.1 complaint which is Ex.P.2 and all these circumstances would show that there is no discrepancy at all in the evidence of P.Ws.1 to 5 in finding the dead body of the deceased Periyakkal after the lapse of 3 days from the date of the occurrence and giving the complaint to the police. The medical evidence as spoken by P.W.17, the Doctor who conducted post-mortem would go a long way to show that the death of Periyakkal would have taken place 4 days prior to the date of post-mortem which is corroborated by the evidence of the prosecution witness P.W.1 to the effect that the occurrence had taken place on 2.5.2004. Non-finding of the injury around the neck of the deceased was explained by the Doctor that it could not be found due to the decomposition of the body.
10. The learned Additional Public Prosecutor would further submit that the prosecution witnesses viz., P.Ws.2 and 3 explained about the non-mentioning of the jewels worn by the deceased at the time of death in their evidence and the non mentioning of the particulars in the FIR is not fatal to the case of the prosecution. The evidence let in by the prosecution through P.W.7, the Village Administrative Officer who was present at the time of arrest of the accused and confession given by the accused would prove Ex.P.9 confession leading to recovery which would go a long way to show that the seizure of M.O.1 and M.O.2 were possible only on his confession. The seizure of the Key, M.O.4 was done at the premises of Periyakkal through mahazar, Ex.P.4 and also silk wire, M.O.5 used for tightening the neck of of Periyakkal through mahazar, Ex.P.5. The evidence of P.W.1 is in support of the evidence of P.Ws. 8 and 9, pawn brokers who had given jewellery M.Os.1 and 2 pledged by the accused to the Investigating Officer. Therefore, the nexus of the accused with the crime has been established by the recoveries made through the confession leading to recovery of M.Os.1 to 5 and the evidence of P.W.7 cannot be doubted. In support of his argument, the learned Additional Public Prosecutor placed reliance on the judgment reported in 1980 Cri. L.J. 1207 = AIR 1980 SC 1753. The attesting witnesses to the observation mahazar had also spoken about the place of occurrence where the dead body was found and the location of the place of occurrence. Therefore, the learned Additional Public Prosecutor would submit that the trial judge was right in passing conviction on the basis of the circumstances proved by the prosecution and the same do not warrant any interference from this court.
11. We have given our anxious consideration to the arguments advanced on either side. The occurrence is alleged to have taken place between 2.5.2004 and 5.5.2004 at the house of one Raji Gounder where the deceased Periyakkal was living. P.W.2 was the first person who saw the dead body when she had gone to the house of the deceased Periyakkal to see her on 05.05.2004 in order to give some temple prasadam. Since the house was found locked, she was in search of the deceased around the premises and she suspected over the locking of the doors. When P.W.2 had taken out two of the roof tiles with the help of her brother, she found the dead body of Periyakkal which was then in a decomposed state. She has also spoken to the effect that she could not find the chain and studs on the person of periyakkal and suspected that she would have been murdered. Thereafter, she brought P.W.1 for giving complaint Ex.P.1.
12. The case of the prosecution is that the deceased Periyakkal was murdered for gain. At the out set it is to be pointed out that there is no eye witness for the occurrence and the present case is depends on circumstantial evidence. The trial court has mainly relied upon the recoveries made at the instance of the accused pursuant to his confession.
13. Therefore, it is to be firstly seen that whether the jewellery alleged to have been recovered at the instance of the accused viz., chain and studs with links, had been stolen away at the time of the commission of offence of the murder. Even though P.Ws.2 and 3 would offer explanation about non mentioning of jewels worn by the deceased at the time of death in the first information, we could see that it has not also been mentioned in the statement given by P.W.2 to P.W.1, the Village Administrative officer. The explanation offered by P.Ws.2 and 3 as to the effect that they could not mention the same at that time as they were very much perturbed. Whether the explanation offered by them could be accepted or not is to be seen with the evidence of other witnesses.
15. The prosecution has mainly relied upon the recovery of jewels from P.Ws.8 and 9 on the basis of the confession allegedly given by the accused. In a case of circumstantial evidence, the recovery plays vital role. P.W.8 and P.W9 are pawn brokers from whom the chain and studs with links, M.Os.1 and 2 respectively were recovered at the instance of the accused. According to the prosecution, the accused pointed out P.Ws.8 and 9 stating that he had pledged the jewels with them. However, the evidence of P.Ws.8 and 9 would go a long way to show that they could not identify the person who had pledged the jewels M.Os.1 and 2 with them. Moreover, the receipt produced by the prosecution in Ex.P.10 allegedly relating to pledging of M.O.1 with P.W.8 was produced by P.W.8 himself. Normally, the pledge receipt would be available only with the person who pledges the jewels and this should have been recovered at the time of investigation from the accused only and it should have been shown to the witness, with whom the jewel was pawned. Strangely, in the instant case such pawn ticket was said to have been recovered from P.W.8 himself. The failure on the part of the prosecution in producing the entire book maintained by the pawn broker maintained in the course of his business transaction would raise a strong suspicion as to the genuineness of Ex.P.10. Apart from that the pledge receipt given by P.W.9 as spoken by him was only a xerox copy and before the trial court also only a xerox copy of such pawn ticket was produced as evidence. Therefore, the case of the prosecution that the accused pledged the alleged stolen jewels with P.W.9 would also create a serious doubt. Apart from that the argument advanced by the learned counsel for the appellant to the effect that the observation mahazar, Ex.P.11 as spoken by P.W.10 did not contain any water mud pot from which the key of the house viz., M.O.4 and the silk wire, M.O.5 were recovered as spoken by other witness. Therefore, it is highly unbelievable that M.O.4 and M.O.5 were recovered from the house premises of the deceased Periyakkal on the alleged confession of the accused, particularly M.O.5 which is said to have been used for the commission of the murder. Insofar as the case of recovery of M.O.4 Key is concerned, it has been spoken by P.W.7 that the accused had taken out the key from the water tank whereas, P.W.10 had not spoken about the presence of the water tank in the premises as prescribed in Ex.P.11 mahazar. It is also pertinent to note that the lock was found in front of the door, whereas in the observation mahazar, Ex.P.11 it has been stated that the lock was found hanging in the latches of the door itself. Therefore, the recovery of M.O.3 Lock, M.O.4 Key and M.O.5 silk wire are highly doubtful. We have already found that the recoveries made from P.W.8 and P.W.9 at the instance of the accused are unbelievable. In such circumstances and in view of the discrepancies indicated above, the subsequent recoveries of M.O.3 to M.O.5 also create a strong suspicion on the prosecution case. As already stated supra, the recovery plays an important role in the case of circumstantial evidence. The failure on the part of the prosecution to prove the recovery any reasonable doubt would cause a snap in the chain of circumstances.
16. Further we could not see any support to the prosecution from the evidence of P.W.11 who is the owner of the wine shop. Though he has stated that he has given hand loan of Rs.3000/- about three months back to the accused and same was repaid by the accused on 05.05.2004, he has not produced any document to show that such loan was advanced to the accused and the same was repaid. The evidence of P.W.12, who is the brother of the accused also lacks credibility. Similarly, the recovery of a sum of Rs.2,020/- from the person of the accused is also doubtful for the same reasons for discrepancies crept in the evidence of prosecution as discussed above.
17. For all the above reasons, we are of the considered view that the prosecution has miserably failed to prove the circumstances relied upon by them without any missing link to point out the guilt of the accused beyond any reasonable doubt. Therefore, the accused is entitled for the benefit of doubt and consequently for acquittal.
18. Accordingly, the criminal appeal is allowed and the conviction and sentence dated 30.03.2005 passed by the learned Additional Sessions Judge, Dharmapuri in S.C.No. 339 of 2004 are set aside. The appellant/accused is acquitted from the charges under Sections 302 and 404 of IPC and he is set at liberty. Fine amount if any paid by the appellant/accused is ordered to be refunded to the appellant/accused. M.O.6 Cash of Rs.2,020/- is ordered to be returned to the appellant/accused after expiry of appeal time to the Supreme Court and the direction of the learned trial Judge in regard to other case properties shall remain unchanged.
