K.N. Basha, J.@mdashSagunthala, who has been arrayed as the first accused, out of two accused in this case, has come forward with this appeal,
challenging her conviction and sentence passed by the learned Principal Sessions Judge, Trichy, by the judgment dated 26.02.2010 in S.C. No. 88
of 2009 convicting her for the offence u/s 302 IPC and sentencing her to life imprisonment and imposing a fine of Rs. 1,000/-, in default, to
undergo rigorous imprisonment for a further period of three months. The learned Principal Sessions Judge, Trichy, by giving the benefit of doubt to
the second accused, acquitted him.
2. The accused faced the trial under the following backdrop:
a. P.W.2 is the wife of the deceased. P. Ws.3 and 4 are the sons of the deceased and P.W.2. The deceased and P.W.2 were residing at Thalikan
Nagar, Gandhi Nagar, K.K. Nagar. P.W.3 is working as Havildar in Indian Defence Service. P.W.4 is working at Chennai. P.W.5 is the
brother''s son of the deceased. P.W.2 informed P. Ws.3 and 4 that the deceased was having illicit intimacy with A.1.
b. On the fateful day of occurrence, i.e., on 29/3/2009, at about 7.45 p.m., when A.1 and the deceased reached the scene of occurrence in a 3
motorbike, both P.W.6 and P.W.7 enquired them, since they are in possession of beer bottles. Subsequently, A.1 and the deceased sat on a
bridge wall near Sadasivam garden at Sengurichi to Mekkudi, A.1 mixed the cyanide poison with beer and gave it to the deceased and caused the
death of Sundaramoorthy/deceased on the spot.
c. On the same day, at about 9.30 p.m., A.1 went to the office of P.W.1 Village Administrative Officer of Nagamangalam Village. On enquiry by
V.A.O, A.1 stated that though she was already married and blessed with three children, she is having illicit intimacy with the deceased for the last
two years. Since the deceased was giving sexual torture frequently, she had decided to kill him by administering poison. Therefore, she sought the
help of A.2, who is the Siddha Doctor. On 27/3/2009, A.2 gave two pockets of sodium cyanide to A.1. The deceased was having the habit of
consuming alcohol. Therefore, A.1 mixed the poison with beer and gave it to the deceased. Having consumed the same, he died on the spot. The
extra judicial confession was recorded under Ex.P.1 by P.W.1. P.W.1 along with P.W.8 Village Assistant, reached the scene of occurrence.A.1
identified the deceased at the spot. P.W.1 prepared Ex.P.2 complaint, went to Manikandam Police Station and produced A.1 before the Sub-
Inspector of Police P.W.15.
d. P.W.15, Sub-Inspector of Police, on receipt of the extra judicial confession, Ex.P.1, produced by P.W.1 Village Administrative Officer,
registered a case in Crime No. 88 of 2009 u/s 302 IPC. Ex.P.20 is the printed First Information Report. He sent the report to the higher police
officials and to the Court.
e. P.W.16 Inspector of Police on receipt of the First Information Report at 11.55 p.m., produced by P.W.15, arrested A.1 on 30/3/2009 at about
00.05 hours. Ex.P.22 is the admissible portion of the confession statement. He recovered cyanide pocket M.O.6 under Ex.P.21.
f. P.W.16 went to the scene of occurrence and in the presence of P. Ws.1 and 8, prepared Observation Mahazar, Ex.P.4 and drew rough sketch,
Ex.P.23.He recovered M.O.1 beer bottle and M.O.2 seven-up bottle under Ex.P.3.P.W.16 held inquest on the dead body of the deceased on
30/3/2009 at 7.00 a.m., at the Government Head Quarters Hospital, Trichy. Ex.P.24 is the inquest.During the inquest, he examined P.W.2 to
P.W.5. He sent the dead body to the Government Hospital, Tiruchirapalli to conduct post-mortem through Head Constable along with requisition
Ex.P.12. Thereafter, he sent A.1 for judicial 5 remand.
g. P.W.14, the Doctor, attached to the Government Medical College Hospital, Trichy, conducted post-mortem on 30.03.2009 at 11.05 a.m. as
per the requisition, Ex.P.12. He found the following injuries:
Wounds:-
1. Ant bite marks on the neck, both upper limb, front and back of trunk. O/E The edges are irregular and base is pale - post mortem in nature. No
other external, internal or bony wound.Other findings:- Peritoneum - intact, cavity -empty; pleura - intact, cavity - empty; Pericardium -intact,
cavity - straw colour fluid; Hear - normal in size, Myocardium - normal, chambers - fluid blood; Valves -normal, Coronary - patent, great vessels
- normal; The blood - Cherry red colour; Lungs - c/s congested;Larynx, trachea - intact, mucosa - pale; Hyoid bone -intact; stomach - dark
brown colour thick fluid with undigested meat pieces, Alcohol smell with pungent odour, mucosa - congested; Oesophagus - intact; mucosa -
bluish discoloration; Pancreas - intact, pale;Gall bladder - full, no stone; Omentum and Mesentery -intact, normal; Liver, Spleen and Kidneys - c/s
congested;Small intestine - yellowish chyme, Alcohol smell present, mucosa - congested; Appendix - intact, normal; Large 6 intestine - filled with
fecal material; Urinary bladder -intact, empty; Pelvis - intact; scalp, skull bones, Membranes - intact; Sinuses and Brain vessels - full;Brain -
petechiae present; CSF - clear Vertebral column and cord - intact; All other internal organs on c/s pale.
h. Ex.P.13 is the Post-mortem certificate. He preserved the internal organs and sample blood for chemical examination. After receipt of Ex.P.9
viscera report, P.W.14 Doctor gave Ex.P.14 final opinion. The Doctor opined that the deceased would appear to have died of ""Cyanide
poisoning"".
i. P.W.16 in continuation of his investigation, recovered the motorcycle produced by P.W.11 under Ex.P.27.
j. P.W.10, Inspector of Police, attached to the Government Finger Print Lab, Trichy, received the intimation from the Inspector of Police, P.W.16.
He went to the scene of occurrence along with P.W.16 on 30.03.2009 at 8.00 a.m. He found the beer bottle, M.O.1 and soft-drink 7-Up bottle,
M.O.2. He examined the two bottles to find out whether there is any finger prints available in the said bottles. He found two finger prints only in the
beer bottle, M.O.1, which are marked as R-1 and R-2. He has also taken photographs. He 7 has examined and compared the finger prints taken
from the beer bottle, M.O.1 along with finger prints of the deceased and the said finger prints found not tallied with the finger prints of the
deceased. He has also received the finger prints of A1 and on examination, P.W.10 found that the finger prints of A1 are tallied with the finger
prints found in M.O.1, beer bottle. He has sent the report, Ex.P.17 to the Investigating officer, P.W.16.
k. P.W.16, on receipt of the post-mortem certificate, Ex.P.13, final opinion, Ex.P.14, Serologist report, Ex.P.15, Comparison Report, Ex.P.17,
Certificate of latest finger print examination, Ex.P.19, completed the investigation and laid the charge sheet against the accused on 30.04.2009 for
the offence under Sections 302 r/w 109 IPC.
3. The prosecution, in order to bring home the charges levelled against the accused, examined P. Ws.1 to 16, filed Exs.P.1 to P.29 and marked
M. Os.1 to 11.
4. When the accused were questioned u/s 313 Code of Criminal Procedure in respect of the incriminating materials appearing against them through
the evidence adduced by the prosecution, the accused had denied each and every 8 circumstances as contrary to the facts and stated that they
have been falsely implicated in this case and they have not chosen to examine any defence witnesses on their side.
5. Mr. V. Kathirvelu, learned Counsel for the Appellant/accused contended that the prosecution has miserably failed to establish the case beyond
reasonable doubt against the accused by adducing clear and cogent evidence and put forward the following contentions:
a. The entire case rests on the circumstantial evidence and the prosecution has not produced any clinching and incriminating circumstances against
the Appellant.
b. The prosecution has chosen to place reliance on the alleged extra judicial confession Ex.P.1, the last scene theory said to have been spoken by
P. Ws.6 and 7 and the fingerprints alleged to have been tallied with the Appellant as per the experts opinion. But there are several infirmities found
on such evidence and as such the entire prosecution case is liable to be rejected.
c. The extra judicial confession alleged to have been given by the accused to the Village Administrative Officer, P.W.1 cannot be relied on as the
Village Administrative Officer is a total stranger to the accused and as such the 9 accused could not have reposed confidence on P.W.1 to give the
extra-judicial confession, Ex.P.1.
d. The last scene theory said to have been spoken by P. Ws.6 and 7, who are also total strangers to A.1 as well as to the deceased as per their
categorical admission in the cross-examination and the prosecution also not chosen to conduct any identification parade and A.1 was identified for
the first time before the Court by P. Ws.6 and 7 and as such the evidence of P. Ws.6 and 7 is unbelievable and unreliable.
e. Though P. Ws.6 and 7 categorically stated in their evidence that the deceased and A.1 came in a motorbike, the said motorbike was not found
in the scene as per the admitted version of P.W.16 and P.W.16 categorically admitted in his cross-examination that he has not recovered the
motorbike M.O.4 from the scene of occurrence and the said motorbike M.O.4 was recovered from some other place and from some other
person.
6. Per contra, the learned Additional Public Prosecutor would contend that the prosecution has proved its case by adducing clear and cogent
evidence. It is contended that the prosecution placed reliance on the extra judicial confession Ex.P.1, the last scene theory spoken by P. Ws.6 and
7 and the fingerprint of A.1 found in M.O.1 beer bottle tallied with the finger prints of 10 A1. It is contended that there is no serious infirmity or
inconsistency in the evidence adduced by the prosecution in respect of the above said circumstantial evidence. The learned Additional Public
Prosecutor would further submit that P.ws.6 and 7 categorically stated in their evidence about the deceased and A.1 coming to the scene of
occurrence in a motor bike and as such the deceased was seen along with A.1 lastly by P. Ws.6 and 7 and as such the said incriminating
circumstance put forward by the prosecution is clinching against A.1 in the case. It is contended that P.W.1 being the Village Administrative
Officer the Appellant/A.1 thought it fit to confess before him and as such the said extra judicial confession cannot be rejected. It is also pointed out
that the motorbike M.O.4 recovered by the prosecution to substantiate the version of P.W.6 and P.W.7 as the deceased came in a motorbike
along with A.1. The learned Additional Public Prosecutor would submit that though there are certain minor discrepancies in the prosecution case,
the same cannot affect the main case of the prosecution.
7. We have given our careful and thoughtful consideration to the rival contentions put forward by either side and also thoroughly scrutinised the
materials available on record and perused the impugned judgment of conviction.
8. The fact remains that the entire prosecution rests on the circumstantial evidence. The prosecution has chosen to place reliance on the following
circumstances, namely:
(i). The extra judicial confession Ex.P.1 alleged to have been given by A1 to the Village Administrative Officer/P.W.1 ;
(ii). The last scene theory said to have been spoken by P. Ws.6 and 7 ; and
(iii). The fingerprints of A.1 said to have been tallied with the finger prints found in M.O.1 beer bottle.
9. Before proceeding to analyse and assess the above said circumstances put forward by the prosecution, let us now refer to the settled position of
law laid down by the Hon''ble Apex Court in respect of the reliability of the circumstantial evidence and the tests to be adopted by the Courts.
10. The Hon''ble Apex Court has reiterated that the following tests have to be satisfied in a case rests upon circumstantial evidence in a latest
decision in Krishnan v. State represented by Inspector of Police reported in 2008 (4) Supreme 25. The Hon''ble Apex Court has held as follows:
This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the
following tests:
i. the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established ;
ii. those circumstances should be of definite tendency unerringly pointing towards guilt of the accused ;
iii. the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human
probability the crime was committed by the accused and none else ; and
iv. the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
(See Gambhir Vs. State of Maharashtra, ).
11. It is also equally well settled by the Hon''ble Apex Court in Gade Lakshmi Mangraju @ Ramesh Vs. State of Andhra Pradesh, that,
In a case based on circumstantial evidence one circumstance by itself may not unerringly point to the 13 guilt of the accused. It is the cumulative
result of all circumstances, which could matter. Hence, it is not proper for the Court to cull out one circumstance from the rest for the purpose of
giving a different meaning to it.
12. Now, let us scrutinize and analyse the circumstances put forward by the prosecution in the light of the above said principles of law laid down
by the Hon''ble Apex Court.
13.0. The first piece of circumstance relied on by the porsecution is that the extra-judicial confession said to have been given by A1 to the Village
Administrative Officer, P.W.1. It is pertinent to note that admittedly P.W.1 is a total stranger to A1 and as such, it is inherently improbable for A1
to repose confidence on P.W.1 to give the extra-judicial confession, Ex.P.1. It is further seen that A1 is a lady and the perusal of Ex.P.1 reveals
that she has stated that she was having illicit intimacy with the deceased and she has been provoked by the sexual torture given by the deceased
and such statement said to have been made by A1, on the face of it, is unbelievable and unreliable.
13.1. At this juncture, it is relevant to refer the following decisions of the 14 Hon''ble Apex Court.
(i). The Hon''ble Apex Court in Jaspal Singh v. State of Punjab reported in 1997 SCC 358 has held that the prosecution has to show as to why
and how the accused had reposed confidence on a particular person to give the extra-judicial confession.
(ii) In yet another decision in Sunny Kapoor Vs. State (UT of Chandigarh), , the Hon''ble Apex Court has held that it is wholly unlikely that the
accused would make extra-judicial confession to a person whom they never knew.
13.2. The principle laid down by the Hon''ble Apex Court in the decisions cited supra is squarely applicable to the facts of the instant case as in
this case also P.W.1 is a total stranger to A1 and as such, it is inherently improbable for A1 to repose confidence on P.W.1 to give such extra-
judicial confession, Ex.P.1.Therefore, we have no hesitation to hold that the extra-judicial confession, Ex.P.1 is unbelievable and unreliable.
14. The second circumstance relied on by the prosecution is the last seen theory said to have been spoken to by P. Ws.6 and 7. The fact remains
that 15 both P. Ws.6 and 7 are total strangers to A1 and both of them have come forward with a parrot-like version to the effect that they have
seen the deceased and P.W.1 together and thereafter, they have enquired about them and left the scene of occurrence. It is pertinent to note that
both P. Ws.6 and 7 claimed to have seen A1 and the deceased separately. It is seen that P. Ws.6 and 7 identified A1 only for the first time before
the Court and the prosecution has not conducted any identification parade. It is to be noted that the prosecution has not come forward with any
material as to who P. Ws.6 and 7 have been traced in this case. Therefore, we are of the view that it is most unsafe to place reliance on their
evidence as the identification of A1 before the Court itself is highly doubtful.
14.1. At this juncture, it is relevant to refer to the following decisions of the Hon''ble Apex Court.
a. The Hon''ble Apex Court in Kanan and Ors. v. State of Kerala reported in 1980 MLJ 1 has held that if a witness identifies an accused, who is
not known to him, in the Court for the first time, his evidence is absolutely valueless. The relevant portion of the passage is usefully extracted
hereunder:
It is well-settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely
valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of T.I. parade u/s 9 of the Evidence Act is to
test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no
T.I. parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court.
b. The Hon''ble Apex Court in a latest decision in Mahabir v. The S tate of Delhi reported in 2008 (3) Supreme 111 has held as follows:
The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character.... It is
accordingly considered a safe rule of prudence to generally look for corroboration of sworn testimony of witnesses in Court as to the identity of
accused who are strangers to them, in the form of earlier identification proceedings.
The principles laid down by the Hon''ble Apex Court in the decisions cited supra are squarely applicable to the facts of the instant case as in this
case, as it is 17 already pointed out, both P. Ws.6 and 7 are total strangers and they have identified A1 only for the first time before the Court and
the prosecution has not chosen to conduct any identification parade earlier.
15. The third and last piece of circumstance put forward by the prosecution is the finger print expert opinion to the effect that the finger print of A1
tallies with that of the finger prints found in beer bottle, M.O.1.
15.1. At the outset, it is to be stated that the opinion of the finger print expert cannot be construed to be a conclusive one and the same is to be
tested only as a corroborative piece of material along with other material available on record. We cannot lost sight of the contradictory version put
forward by the prosecution in respect of the recovery of M.O.1, beer bottle. P.W.16, the Investigating Officer, has categorically stated that he has
recovered M.O.1, beer bottle, and M.O.2, 7-Up bottle from the scene of occurrence under Ex.P.3 at 1.45 a.m. on 30.03.2009. It is needless to
state that once the recovery is made by the Investigating Officer, the articles recovered should be required to be taken in the safe custody of the
investigating officer till the same is produced before the Court. But in the cross-examination P.W.16 has categorically admitted that he has not
taken M. Os.1 and 2 to the police station and he has 18 made some constable to guard the scene of occurrence. P.W.16 has further admitted that
he is not remembering the names of those constables. It is also admitted by P.W.16 that he has not examined those constables and he has not
stated so in the recovery mahazar or any other document. There is also contradiction in material particulars between the evidence of P.W.16, the
Investigating Officer, and P.W.10, the Finger Print Expert. P.W.10 claimed that he was summoned by the Investigating Officer and he went to the
scene along with the Investigating Officer and thereafter, he has taken M.O.1, beer bottle, for tests. But P.W.16 has categorically stated that he
has recovered the beer bottle even before the arrival of the finger print expert, P.W.10 under Ex.P.3 at 1.45 a.m. on 30.03.2009. He has further
admitted that he was at the scene of occurrence till 2.45 a.m.
15.2. Added to all these infirmities, it is pertinent to note that P.W.16, has categorically admitted that P.W.10, finger print expert, has not
recovered the beer bottle and has taken the finger prints in his presence. It is also admitted by P.W.16, as per the prosecution case, that the beer
bottle was found only in the hands of the deceased and as such, it is improbable for the said beer bottle to contain the finger prints of A1.
15.3. In view of all these infirmities, inconsistencies and improbabilities, we are of the considered view that no reliance could be placed on the
opinion of the finger print expert, P.W.10.
16. Yet another factor to be borne in mind by this Court in respect of the evidence of P. Ws.6 and 7 is that both of them claimed that the deceased
and A1 came in a motorbike to the scene, but the said motorbike, M.O.4, admittedly was not recovered from the scene of occurrence as per the
specific and categorical admission of P.W.16, the Investigating Officer. P.W.16 has categorically stated that he has not recovered the motorbike
from the scene as the same was not found at the scene.
17. In view of the aforesaid reasons, we have come to the irresistible conclusion that the prosecution has miserably failed to put forward clear,
clinching and consistent circumstances unerringly pointing to the guilt of the accused and as such, the impugned judgment of conviction is
unsustainable in law. Accordingly, the appeal is allowed and the conviction and sentence imposed on the Appellant by the learned Principal
Sessions Judge, Tiruchirapalli, in S.C. No. 88 of 2009 dated 26.02.2010 are set aside and the Appellant is acquitted of the charges levelled
against him. Bail bonds executed, if any, are 20 directed to be cancelled. Fine amount paid, if any, is directed to be refunded to the Appellant.
