The Criminal Appeal arises out of the judgment dated 26.2.2003 in S.C.No.192 of 2002 on the file of the Principal Sessions Court, Namakkal, whereby the appellant-A.1 was convicted for the offence under Section 324 IPC and sentenced to undergo rigorous imprisonment for three years. A.1 and A.2 were acquitted of the charges under Section 302 read with Section 34 IPC and Section 201 IPC.
2. The case of the prosecution is as follows:
(a) A.1 is the mother of A.2. They were residing at Adidravidar Colony, Unjanai, Tiruchengode. The deceased Babu alias Ilaikadai Babu, a notorious criminal involved in several criminal cases, wanted to marry P.W.8 Bhavani, the daughter of A.1 and he was forcing A.1 to give her daughter in marriage to him. Unable to bear the trouble caused by the deceased, A.1 left for Erode with her daughters and son. (b) Earlier, the deceased was convicted in a case and sent to Prison. Hence, one year later, A.1 came back to her house, as the deceased was in jail. 15 days prior to the date of occurrence, the deceased was released from jail. He often visited A.1 and compelled her to give her daughter in marriage to him, for which, A.1 did not agree. (c) On 17.3.202 at about 5 p.m., the deceased came to A.1's house in M.O.2 TVS-50 two-wheeler bearing Regn.No.TN-33-K.8938, belonging to P.W.6 Sekar, which was stolen from him. At that time, P.W.8 was not there. So, under the pretext of asking water, he caught hold of the hands of P.W.9 Parimala, the younger sister of P.W.8 and younger daughter of A.1. She escaped from the clutches and ran away, which resulted in wordy altercation between the accused and the deceased. (d) At about 6 p.m., A.1 took M.O.17 reaper and beat on the back of the head of the deceased, with force. He fell down facing the ground. When the deceased tried to get up, A.2 snatched M.O.17 reaper from A.1 and repeatedly hit on the head of the deceased, i.e. for two or three times. The deceased was unconscious. (e) A.1 and A.2 wanted to screen the evidence. At about 12 mid-night, they put the dead body of the deceased Babu inside M.O.5 gunny bag and tied the same with M.O.6 rope and transported it with M.O.2 TVS-50. They dropped the back near the bridge and left the TVS-50 and M.O.1 black cap there itself and they returned to their home. They also screened the evidence at the scene of occurrence by way of white-washing the walls and mopped the floor with cow-dung. (f) On 18.3.2002 when P.W.1 Sekaran, Village Assistant and P.W.22 Madhivanan, Village Administrative Officer, were proceeding for revenue collection to Unjanai, they witnessed the gunny bag near the bridge and saw the dead body inside the gunny bag in the sitting posture with injuries on the head. P.W.4 Sundaram, a road-worker, also saw it. (g) P.W.22 V.A.O. went to the Police Station and gave a report Ex.P-13 at 11 a.m.
(h) P.W.25 Inspector of Police registered a case in Cr.No.264 of 2002 for the offence under Section 302 IPC and prepared Ex.P-18 FIR. The investigating officer went to the place of occurrence at 11.30 a.m. He also prepared Ex.P-1 observation mahazar and Ex.P-19 rough sketch in the presence of P.Ws.1 and 22. (i) The factum of the death of the deceased has been informed to P.W.2. P.W.2 identified the dead body of Babu as his nephew. (j) P.W.25 investigating officer seized M.Os.1 to 7 under Ex.P-2 mahazar in the presence of P.Ws.1 and 22. He also took steps for taking photographs through P.W.20 and the photographs have been marked as M.O.11 series and negatives are M.O.12 series. (k) P.W.25 investigating officer conducted inquest in the presence of villagers and Panchayatdars and prepared the inquest report Ex.P-20. (l) Then, P.W.25 sent the dead body for autopsy with a requisition Ex.P-11 through P.W.24 Police Constable.
(m) P.W.21 Dr.Ramalingam received the requisition and conducted autopsy and gave Ex.P-12 post-mortem certificate, in which the following injuries are noted: "List of External Injuries:
1. Incised wound 3 cm x 1/2 cm x bone deep over left frontal area.
2. 2 incised wounds 3 cm x 1/2 cm x bone deep, 5 cm x 1/2 cm x bone deep over the centre of scalp.
3. Incised wound 5 cm x 1/2 cm x bone deep over right tempero parietal area.
4. Incised wound 2 cm x 1/2 cm x 1/2 cm over the scalp behind the left ear.
5. Contusion 6 cm x 1 cm over left side of neck.
6. Contusion 4 cm x 2 cm over the front side of neck.
7. Abrasion 1 cm x 1/4 cm over the left upper arm.
8. Abrasion 6 cm x 1/2 cm over left forearm.
9. Abrasion 4 cm x 3 cm over right upper arm.
10. Contusion 5 cm x 3 cm over right upper arm below the previous injury.
11. Contusion 8 cm x 6 cm over right side of back.
12. Contusion 3 cm x 2 cm over right side of back below No.11.
13. Contusion 6 cm x 2-1/2 over right lower back.
14. Multiple contusions (five) over left back.
15. Incised wound 4 cm x 2 cm x 1/2 cm over the inner side of left foot.
Internal injuries:
Skull: fracture 31 cm over the middle of skull running transversely, starting from the front of left ear to the front of right ear. Subdural haematoma present about 50 ml. of clotted blood present. Brain 1500 gms pale.
Hyoid bone intact.
Ribs fracture of ribs 5, 6, 7 and 8 on the left side back and fracture 4, 5, 6 and 7th ribs on the right side over the back. 100 ml of clotted blood present in chest cavity. Lungs: 400 gms right, 375 gms left, 3 punctured wounds over right lung (2 x 2, 2 x 1, 2 x 3 cm) and two punctured wounds over left lung present (2 x 2, 2 x 1 cm). Heart: Pale 180 gms.
Stomach contains partially digested food about 100 gms.
Liver 1300 gms pale.
Kidney right 100 gms left 100 gms pale.
Spleen: 100 gms pale.
Bladder empty.
Opinion:
The deceased would appear to have died 24-36 hours prior to autopsy due to haemorrhage and shock."
(n) After autopsy, P.W.24 Head Constable handed over the dead body of the deceased to the relatives and collected the belongings of the deceased, namely M.Os.13 to 16 and handed over the same to P.W.25 investigating officer. He recovered the same under Form 95. (o) P.W.5, the mother of the deceased, also identified the dead body of the deceased at the hospital.
(p) A.2 surrendered before the Court. P.W.25 Inspector of Police took steps for the police custody of A.2 and he recorded the confession statement from A.2 and the admitted portion of the same is Ex.P-24. In pursuance of the same, he seized M.Os.9, 10 and 17 in the presence of P.W.1 and Murugan, under Ex.P-4 mahazar. (q) On 23.3.2002 at about 8.30 a.m., P.W.25 arrested A.1 and at that time, she has given confession and the admissible portion of the same is Ex.P-23. In pursuance of the same, he seized M.O.8 saree under Ex.P-3 mahazar in the presence of P.W.1 and P.W.16 Muthukumar. (r) On 23.3.2002, P.W.25 drew rough sketch Ex.P-22 in the place of occurrence and prepared observation mahazar Ex.P-23 in the presence of P.Ws.17 and 18. (s) P.W.25 gave a requisition to the Court for sending the material objects for chemical examination, which is Ex.P-14. In turn, the learned Judicial Magistrate has sent the letter Ex.P-15 to the Regional Forensic Sciences Laborator. The chemical report received was marked as Ex.P-16 and the serologist report Ex.P-17. (t) After investigation, P.W.25 Inspector of Police filed charge sheet against the accused for the offence under Section 302 read with 34 IPC.
3. After following the formalities, charges were framed against the accused and they denied the same and pleaded not guilty. After examination of the witnesses, the trial Court posed incriminating evidence against the accused under Section 313 Cr.P.C., to which, they denied. The trial Court, after considering the oral evidence of P.Ws.1 to 25 and the documentary evidence of Exs.P-1 to P-24 and M.Os.1 to 18, convicted and acquitted the accused as indicated above. As against the conviction of A.1, the present appeal has been filed.
4. Challenging the conviction and sentence, learned counsel for the appellant-A.1 would contend that the case is solely based on circumstantial evidence. In the trial Court, only motive, arrest and recovery have been proved and the other link/chain in the genesis of hypothesis regarding the circumstantial evidence, has not been proved, i.e. the last seen theory of the deceased in the company of the accused. The trial Court has not considered this aspect in proper perspective and considering the blood stains in the saree of A.1, even though the link in the genesis of hypothesis of circumstantial evidence, has been disconnected, the trial Court convicted the appellant/A.1 under Section 324 IPC, which is against law. Hence, he prayed for acquittal of the appellant/A.1.
5. Per contra, learned Government Advocate (Crl. Side) appearing for the respondent-Police would contend that it is true that the case is based on circumstantial evidence. The motive has been proved by evidence stating that the deceased has demanded marriage of the daughter of A.1, i.e. P.W.8, but the deceased refused to give her in marriage to him since he is a notorious criminal. The deceased was earlier convicted and released from jail and even though he made some demand on the fateful day when he asked water, P.W.19, the younger daughter of A.1, was giving water and at that time, the deceased misbehaved with her and so, A.1 picked up quarrel and assaulted the deceased with M.O.1 reaper, which resulted in the instantaneous death. So, the motive has been proved by the prosecution. Learned Government Advocate submits that the arrest and recovery have also been proved by the prosecution, and so, the trial Court came to the correct conclusion and found the appellant-A.1 guilty of the offence under Section 324 IPC. Learned Government Advocate prayed for dismissing the appeal.
6. Since the case is based on circumstantial evidence, it is the duty of the prosecution to prove the genesis of the hypothesis by linking each and every chain of circumstances, without any delink.
7. The following are the genesis of hypotheses for proving the circumstantial evidence in this case:
(a) motive,
(b) death of the deceased is homicidal,
(c) last seen theory of the deceased in the company of the accused and
(d) arrest and recovery.
8. The death of the deceased is homicidal and the same is not disputed. As per the evidence of P.W.21 Doctor and Ex.P-12 post-mortem certificate, the death of the deceased is proved and that as per the opinion of the Doctor in Ex.P-12 post-mortem certificate, the deceased would appear to have died 24-36 hours prior to the autopsy due to haemorrhage and shock. The deceased has sustained head injuries. So, the death is homicidal, has been proved by the prosecution beyond reasonable doubt, which was accepted by the trial Court, and the same does not warrant any interference.
9. The next hypotheses is the motive. This Court has to consider as to whether the motive has been proved by the prosecution beyond reasonable doubt. Even though P.Ws.1 and 7 to 19 turned hostile, while perusing the evidence of the witnesses, no one has deposed about the motive for the appellant/A.1 to cause the murder of the deceased. In such circumstances, the genesis of hypotheses regarding motive is not proved by the prosecution beyond reasonable doubt.
10. Next, this Court has to decide as to whether the prosecution has proved the last seen theory of the deceased in the company of the accused. While perusing the evidence, no evidence is available to conclude that the deceased was lastly seen in the company of A.1 and A.2. Hence, the last seen theory is also not proved by the prosecution beyond reasonable doubt.
11. The next genesis of hypotheses is the arrest and recovery. It is true that A.2 surrendered before Court and during police custody, M.Os.9, 10 and 17 were seized from him under Ex.P-4 mahazar in the presence of P.W.1 and one Murugan. P.W.1 is the Village Assistant. A.1 was arrested on 23.3.2002 at about 8.30 a.m. and on the basis of her confession, Ex.P-21, in the presence of P.W.1 and P.W.16 Muthukumar and M.O.8 saree has been seized. Even though as per the chemical analysis report, the saree contains the human blood, but the grouping of the blood was inconclusive, as seen from serologist report. In such circumstances, it is unsafe to conclude that the appellant/A.1 involved in the occurrence.
12. As per Ex.P-17 serologist report, the deceased clothing contained 'A' Group Blood. But M.O.8 saree does not contain any Blood Group 'A'. Under those circumstances, even though the arrest and recovery have been proved, by way of examining P.W.1 Village Assistant and M.O.8 saree was recovered in the presence of P.W.16 Muthukumar, but the saree does not contain the blood group of the deceased. So, it is unsafe to link the appellant/A.1 in the commission of the offence.
13. As already stated, the prosecution has only proved that the death of the deceased is homicidal, but the other genesis of hypothesis has not been proved by the prosecution and the chain in the case of circumstantial evidence, has not been linked with each other genesis of hypotheses. In the circumstances, I am of the view that the trial Court has committed error in finding the appellant-A.1 guilty and convicting the accused for the offence under Section 324 IPC.
14. In the result,
(a) the Criminal Appeal is allowed.
(b) The conviction and sentence imposed on the appellant/A.1 for the offence under Section 324 IPC, are set aside. (c) The bail bonds, if any executed by the appellant/A.1 shall stand cancelled.
