The appellant was accused in S. C. No. 191 of 1986 on the file Court of Session, Salem.
2. He was found guilty for offences under Sections 302, 316, 201 and 404, IPC., convicted thereunder and sentenced to imprisonment for life under Section 302, I.P.C., rigorous imprisonment for three years under Section 316, I.P.C., rigorous imprisonment for three years under Section 201, I.P.C. and rigorous imprisonment for two years under Section 404, I.P.C., with a direction that all the sentences are to run concurrently.
3. Brief facts are :-
(a) The accused is a resident of Kuchipalayam, situate within the limits of Paramathi Velur Police, Station. His wife was one Lakshmi (since deceased). The spouses were blessed with a female child, by name Vaidhegi. At or about the time of occurrence, which event happened on 1st June, 1985, his wife the deceased was in advanced stage of pregnancy. The accused suspected the fidelity of his wife. Consequently, there was want of cordial atmosphere prevailing between the spouses in the matrimonial abode. P.Ws. 3 and 4 are respectively the father and mother of the accused. The accused had a brother by name Thangavel and his wife is P.W. 5., P.Ws. 3 and 4 lived in the downstairs portion of the house, while the accused and his wife the deceased, along with their minor daughter, Vaidhegi lived in the upstairs portion. Likewise, his brother Thangavel and his wife, P.W. 5 also lived in another portion of the downstairs.
(b) P.W. 1 is the brother of the deceased. He is residing in the adjancent village, going by the name Ranganathampettai. Since his sister the deceased was in the advanced stage of pregnancy, she was to be taken to her parents house on the first of June, 1985. P.W. 2, the sister's son of P.W. 1 a resident of Ranganathampettai, who had been to Kuchipalayam, in connection with the Mariamman festival there, happened to visit the house of the accused on 31st May, 1985. On the morning of 1-6-1985, P.W. 2 happened to see a lot of crowd in the house of the accused and he was able to understand the mysterious missing of the deceased, accused and their daughter from the house. He returned to the village and informed the same to P.W. 1.
(c) On the night of 31-5-1985, as usual, P.Ws. 3 and 4 took their bed in the downstairs portion, while the accused, the deceased and their daughter took their bed in the upstairs portion. Likewise, P.W. 5 and her husband were also available in their portion of the house. Since daughter of the accused Vaidhegi complained of pain in the ear, the accused was stated to have taken her to the downstairs and entrusted her to the custody of his mother. P.W. 4. At about 2.30 a.m. (on 1-6-1985), the said child cried, obviously unable to bear the pain in the ear. Consequently, P.W. 4 was stated to have gone to the upstairs, obviously to seek help from the accused and the deceased and in such process, she was able to find that both the accused and the deceased were not available. At about the early hours of the morning, the accused returned to the house with a spade on his shoulder wearing wet clothes. Showing the signs of taking bath. After return, the accused took his daughter Vaidhegi and left the house. On his way, P.W. 9 met him. The accused is stated to have told him that he was taking his daughter to hospital for treatment to her fever.
(d) P.W. 8 is the sister of the accused. She had been residing in the village, going by the name, Manapalli. Eight days after the occurrence, the accused, along with his daughter, visited the house of his sister P.W. 8. daunted by the curiosity of the absence of the deceased, appeared to have enquired about the whereabouts of the deceased. To such a query, the accused was stated to have divulged to her that he, in fact, murdered her.
(e) In the meantime, since P.W. 1 was unable to trace his sister the deceased, he went to Paramathivelur police station on 1-6-1985 at 6.30 p.m. and presented a written complaint, Exhibit P1 expressing anguish about the missing of his sister - the deceased and also suspecting harm to her life at the hands of her husband. P.W. 18, then Sub-Inspector of Police in charge of the Police Station registered Exhibit P1 as a case in crime No. 227/85. Exhibit P. 24 is the first information report. At 6.45 p.m. he rushed and reached Kuchipalayam and after inspecting the house of the accused, he drew a rough sketch Exhibit P. 25. He also examined P.Ws. 1 to 5. On 10-6-1985, he examined P.W. 8.
(f) On 17-7-1985, the accused was stated to have sent a complaint dated 16-7-1985 addressed to P.W. 17, then Sub-Inspector of Police. Karungalpalayam Police Station, Erode, stating that his wife the deceased left the house on 25-5-1985 to go to her parents' house and he, in turn, went to outside stations for the purpose of doing cooly work and that when he returned to his house on 12-7-1985, his wife was not available, not only in his house, but also in his father-in-law's house. So saying, he made a request to find out the whereabouts of his wife. The said complaint is Exhibit P. 21. The same had been registered as a case in crime No. 500/85. Exhibit P. 22 is the first information report.
(g) P.W. 19 was the then Inspector of Police, Paramathivelur Circle limits. On a direction from the superintendent of Police, he took up further investigation in the case in Crime No. 227/85 on 24-7-1985. He verified the earlier investigation done by P.W. 18. He did not record any further statements from the witnesses, already examined by him. On 5-8-1985 at 4-30 a.m., he arrested the accused at the Four Cross Roads junction of Paramathivelur in the presence of P.W. 14. On interrogation, the accused was stated to have voluntarily given a confessional statement under S. 27 of the Evidence Act. Exhibits P. 17 and P. 26 are the admissible portions therein. The accused took out and produced from his person M.O. 2, one jimikki, which was seized under Exhibit P. 18 mahazar. The time was then 6-15 a.m. Exhibits P. 17 and P. 18 were attested by P.W. 14. At 6-45 a.m., he returned to his office, along with the accused. He then altered the case into one under S. 302 read with S. 201, IPC. He prepared express FIR and sent the same to the concerned officials. Exhibit P. 27 is the express FIR sent to the Judicial Magistrate's Court, Paramathivelur. Then the accused was stated to have taken P.Ws. 14 and 19 to the place, where the corpse was buried and then to his house and produced M.O. 10 spade therefrom, which was seized under Exhibit P. 19 mahazar. The time was then 2-00 p.m. Exhibit P. 19 had been attested by P.W. 14. He returned to the Station, along with the accused and put him in the lock-up. He sent Exhibit P. 10 requisition to the Tahsildhar, Namakkal to exhume the body. On 6-8-1985, the accused had been remanded to judicial custody.
(h) P.W. 7 was the then Tahsildhar, Namakkal. He went to the office of P.W. 19 at 8-00 a.m. on 6-8-1985. He then went to the survey field No. 207/2 at Kuchipalayam. After inspecting the survey field, he drew an observation mahazar, Exhibit P. 11, which had been attested by P.W. 14. He also drew a rough sketch of the said survey field, Exhibit P. 12. The place where a dead body was stated to have been buried was shown in Exhibit P. 12. The said place was dug out by his menials Thangavel, Kuppan and Krishnan. After digging the place for about two feet, four pieces of cloth, M.O. 7 series were found. Digging the place to a further depth of 2 1/2 feet, a corpse was available in a highly putrified state. There was M.O. 6 jacket covering the body. In the process of excavating the earth from the pit, a single jimikki, M.O. 3 as also traced. M.Os. 3 and 7 series were recovered under Exhibit P. 13 mahazar. The body was lifted and placed on the ground. Between 11-00 a.m. and 1-00 p.m., he held inquest over the corpse. Exhibit P. 14 is the inquest report. He also sent Exhibit P. 2 requisition to P.W. 6, Medical Officer, Government Hospital Paramathivelur through constable P.W. 16 for the purpose of autopsy over the corpse. Exhibit P. 15 is the exhumation proceedings sent to the Judicial II Class Magistrate, (as he then was) Paramathivelur.
(i) P.W. 6, on receipt of Exhibit P2 requisition went to the spot and conducted autopsy over the corpse. Exhibit P3 is the post-mortem certificate. Since the body was in a highly putrified state and certain parts of the body were found missing, he was not able to give any opinion as respects the age, sex and cause of death of the corpse, over which he had performed autopsy. On requisition from the Judicial II Class Magistrate Paramathivelur, he preserved the skeletal parts of the body of the corpse and facial bones and subsequently the same had been despatched to the chemical examiner for the purpose of finding out the details as to whether it is relatable to human, sex, age and superimposition and cause of death.
(j) On 6-8-1985 P.W. 19 examined P.Ws. 14 and 16. On 7-8-85, he despatched the documents and other material objects entrusted to him by P.W. 7 to court. On 9-8-1985, he seized M.O. 1 gold thali chain (without thali) from P.W. 11, pursuant to the information furnished by P.W. 10, under the cover of mahazar Ex. P. 16 attested by P.W. 12 He also examined P.W. 10 and 11. On 14-8-1985, he seized from one A. Sathiyaseelan a group photo M.O. 5 under mahazar Ex. P. 28 and in the said group photo the wife of the accused Lakshmi figures and sent the same to court. On 26-8-85, he sent Ex. P. 20 requisition to Judicial II Class Magistrate, Paramathivelur requiring him to send the skeletal parts of the corpse, as well as other bones, for chemical examination, besides superimposition test to be performed by comparing the skull and M.O. P5 photograph, in which Lakshmi the wife of the accused figures. He also gave a requisition to the Judicial II Class Magistrate, Paramathivelur praying for police custody of the accused. The prayer made appeared to have been granted and consequently on 30-8-1985, the accused had been taken to and reached Madras on 31-8-1985 on which date, at 11-30 a.m. the accused took him to the shop of Krishna Jewellers, located at Subhash Chandra Bose Road, Madras and from the said shop, two bangles M.O. 4 series had been recovered, as produced by P.W. 13, a clerk in the said jewellery shop. M.O. 4 series had been seized under Ex. P. 29 attested by P.W. 13. On 1-9-1985, the accused had been remanded to judicial custody.
(k) P.W. 15 was then Headclerk attached to Judicial II Class Magistrate, Paramathi Velur. On receipt of Ex. P20 requisition, pursuant to the orders of learned Magistrate, requisitions under the original of Exs. P4 and P5 had been sent to the chemical examiner, marking a copy to P.W. 6 for forwarding the skeletal parts of the body of the corpse, over which he had performed autopsy, facial bones, skull bones and other bones to the chemical examiner. The photograph M.O. 5 had also been sent to the chemical examiner for the purpose of conducting superimposition test. Exs. P6 to P8 are the reports of the Chemical Examiner.
(l) The Doctor P.W. 6, based upon Exs. P6 to P8 gave his final opinion Ex. P9 that the corpse, over which he had performed autopsy is of human origin, sex-female, age above 20 years and below 40 years. However, he was unable to give the cause of death with the available data. Likewise, he would opine that the foetus is relatable to a female, but its age could not be given.
(m) On 12-9-1985 P.W. 19 examined P.W. 6 and others, On 2-10-1985, he examined P.W. 17. After completion of investigation, he laid final report under S. 173(2), Cr.P.C. on 22-9-1986 before the Judicial II Class Magistrate, Paramathivelur against the accused for alleged offences under Ss. 302, 316, 201 and 404, IPC.
4. On committal, learned Sessions Judge, Salem framed charges under Ss. 302, 316, 201 and 404, IPC against the accused.
5. The accused, when questioned as respects the charges so framed, denied the same and claimed to be tried.
6. In proof of those charges, the prosecution examined P.Ws. 1 to 19, filed Exs. P1 to P29 and marked M.Os. 1 to 10.
7. The accused when questioned under S. 313, Cr.P.C. as respects the incriminating circumstances appearing in evidence against him, denied his complicity in the crime. He did not choose to examine any witness on his behalf.
8. Learned Sessions Judge, on consideration of the materials placed and after hearing the arguments of learned counsel for the appellant-accused and learned Public Prosecutor, however, rendered the verdict, as stated above,
9. From the submissions of Mr. R. M. Krishnarajan, learned counsel appearing for the appellant-accused and Mr. Raghupathy, learned Additional Public Prosecutor representing the prosecution, the only point that crops for consideration is as to whether the conviction and sentence, as had been imposed upon the appellant-accused by the court below on the facts and in the circumstances of the case are sustainable in law ?
10. The case of the prosecution solely rests upon the evidence, not direct but indirect viz. circumstantial evidence. The following pieces of circumstantial evidence had been relied upon by the prosecution, in proof of the guilt of the accused for various offences.
(i) The accused suspecting the fidelity of his wife, Lakshmi, serving as an igniting cause for her murder.
(ii) The accused being last seen in the company of his wife after taking bed along with her, in the upstairs portion of the house, on the fateful night in question.
(iii) The accused and his wife Lakshmi, at about 2-00 or 2-30 a.m. on the night in question, not being found in the house and the accused alone returning to the house at the early hours of the morning, with wet clothes on his person, besides carrying with him a spade.
(iv) The accused taking away from his parents, his child Vaidhegi and departing from the house, saying that he will go elsewhere and eke out his livelihood and not being subsequently found and the accused meeting his sister eight days after his disappearance from the house and leaving his child Vaidhegi there and when questioned by his sister as to the whereabouts of his wife, he having made a confession as to his committing the murder of his wife.
(v) The arrest, confession and consequent recoveries effected pursuant to confession and
(vi) Medical testimony available on record.
11. There is no manner of doubt whatever that the wife of the accused viz. Lakshmi was in advanced stage of pregnancy and she was to be taken to her parents house on 1-6-1985. Since then, she was not traceable. Her brother P.W. 1 suspected the accused to be having a hand in the mysterious absence of his wife Lakshmi from the matrimonial home. Consequently, he gave Ex. P1 complaint to P.W. 18. He entertained a suspicion that since the accused suspected the fidelity of his wife, possibly he could have meddled with her life. The investigation started with such a suspicion. The materials brought on record as to the infidelity of Lakshmi consisted of the testimony of P.W. 1, the brother of the deceased and P.Ws. 3 and 4, the parents of the accused. P.W. 1, rather in a vague fashion stated that the accused suspected the fidelity of his wife and nothing more. It is not his evidence at all that he ever had personal knowledge of illicit relationship of Lakshmi with anybody else. P.Ws. 3 and 4 did not at all state anything as to Lakshmi having any illicit connection with any one, during the course of trial. It appears that they had stated during the course of investigation, that there was want of cordial relationship between the accused and his wife as a consequence of infidelity to him. Though they have stated so during the course of investigation, they resiled from their earlier version, while being examined in court. Consequently, left with no option, the prosecution treated them hostile wholesale. The reason why they have been treated hostile wholesale is that even during the course of chief examination, they have categorically stated that the accused and his wife were leading a happy matrimonial life without any sort of a hitch between them. In order to destroy such piece of evidence, they had evidently been treated as hostile wholesale. The net result is that though the prosecution elicited what all they have stated during the course of investigation and brought on record, utilising the provisions of S. 145 of the Evidence Act, the evidentiary value to be attached to such a testimony is practically negligible or, so to say 'nil'. Further, no material whatever had been placed on record that prior to 1-6-1985, there was any sort of a hitch between the accused and his wife Lakshmi on account of any reason whatever. Further, as already stated she was in advanced stage of pregnancy and she was to be taken to her parents' house for the purpose of delivery. In such circumstances, we are unable to give any credence to the motive aspect of the case of the prosecution as projected by P.Ws. 1 to 3.
12. No doubt true it is, that the accused and his wife were living in the upstairs portion of their house separately and P.Ws. 3 and 4, the parents of the accused were living in downstairs portion. That apart, the brother of the accused viz. Thangavel and his wife P.W. 5 were living in another downstairs portion of the house. It is the case of the prosecution that on the fateful night in question, the accused, and his wife, after supper, had been to upstairs for taking their bed, along with their child Vaidhegi. It is the further case that the child Vaidhegi complained of certain pain in her ear and consequently, she was taken to downstairs and left in the custody and care of P.W. 4. Since the child was unable to bear the pain, it cried and in order to return the child back to the custody of its parents. P.W. 4 had stated, she went to upstairs at about 2-00 or 2-30 a.m. and in such process, she was able to find a sudden disappearance of the accused and his wife, Lakshmi and the accused alone returning in the early hours of the morning with wet clothes and carrying with him a spade. To prove these aspects, P.Ws. 3, 4 and 5 had been examined by the prosecution. Unfortunately, all of them turned wholesale hostile and did not at all support prosecution. The Himalayan efforts taken by the prosecution in proving what they have stated during the course of investigation can, by no stretch of imagination, be stated to advance or improve the case of the prosecution to any extent whatever, in as much as the the evidentiary value of such testimony, as already stated, is practically 'nil'.
13. In order to prove the factum of the accused taking the child from his house and meeting his sister, P.W. 8 after eight days of his departure and leaving the child there and on his being questioned as to the whereabouts of his wife by P.W. 8, he appeared to have told her that he committed the murder of the deceased, P.W. 8 had been examined in court. Alas ! for the prosecution, she also turned hostile wholesale. Her testimony also is of no use to the prosecution.
14. The arrest, confession and consequent recovery effected is of no sequence, on the facts and in the circumstances of the case. What was recovered pursuant to the confession under S. 27 of the Evidence Act was two bangles M.O. 4 series belonging to his wife from Krishna Jewellery Mart, in which P.W. 13 is the clerk, besides the recovery of one jimikki, M.O. 2 from his person immediately after his arrest. That apart, the spade M.O. 10 was also stated to have been recovered from his house. In what way the recovery of the spade will be of any use to the prosecution, we are unable to understand. Nothing tangible is available to connect the spade with the crime, in the sense of the same not having been found stained with the group of blood as that of the deceased. What is further worse is that the Inspector of Police P.W. 19 would depose in his evidence that the accused pointed out the place of concealment of the corpse. But pursuant to the confession he had made, no exhumation was effected in his presence. He would further say that certain constables were posted to guard the place and even the Tahsildhar P.W. 7 did not say anything that the accused pointed out the place wherefrom the corpse was exhumed. He would simply say that he would make arrangements to exhume the corpse in survey field No. 207/2. In such state of affairs, the exhumation of the corpse can, by no stretch of imagination, be stated to be relatable to the discovery of the facts exclusively within the knowledge of the accused pursuant to the salient provisions adumbrated under S. 27 of the Evidence Act. Thus the arrest, consequent confession and recovery effected cannot at all be stated to have advanced the case of the prosecution to any extent whatever.
15. Top of all, the medical testimony available in this case, instead of advancing the case of the prosecution actually gives a go by to its case. The Doctor P.W. 6, who conducted autopsy and issued Ex. P3 Post Mortem Certificate found the corpse in a highly putrified state. That apart, so many parts of the body of the corpse were found missing which was to such an extent that he was unable to decide the sex, age and cause of death of the corpse, that perhaps was the reason that the skeletal parts of the body of the corpse and skull had been sent to chemical examination for the purpose of finding out sex, age, cause of death etc. Even the Chemical Examiner who had conducted superimposition test and other tests, was unable to determine the cause of death. Though he was able to say that the corpse was that of a female and its age could have been above 20 years and below 40 years, from the superimposition test, he held the view that it was not possible to say that the skull was relatable to the wife of the appellant.
16. Thus the prosecution miserably failed in establishing the various incriminating circumstances. Axiomatic a proposition of law it is that in a case resting purely on circumstantial evidence, it behoves upon the prosecution to establish the various circumstances relied upon by it beyond any shadow of doubt and the circumstances so established must have to lead to the one and only hypothesis that the accused and him alone could have been responsible for causing the death of the deceased. In the case on hand, as already stated, none of the circumstances had been established by the prosecution and therefore the question of the established circumstances pointing out to the one and only hypothesis that the accused and him alone, could have caused the death of his wife cannot at all arise for consideration.
17. In this view of the matter, we rather feel that the conviction and sentence, as had been imposed upon the appellant-accused by the Court below are not at all sustainable in law. The appeal is therefore allowed. The conviction and sentence, as had been imposed upon him by the Court below are set aside and the appellant is acquitted. The bail bond, if any, executed by him shall stand cancelled.