MANIKKUNDU Vs. STATE

JUDGEMENT

(1.) ACCUSED in Sessions Case No. 12/95 on the file of Sessions Judge, South Arcot Vallalar Division, Cuddalore, against the conviction under Section 302 read with Section 34, IPC and sentence of imprisonment for life, have preferred the above appeal.

(2.) FOR convenience, the appellants are referred as accused as arrayed in the trial Court. On 23.11.1991 at about 12.00 hours one Paramasivam, Village Administrative Officer, Ezhuthur lodged a complaint that an un-known lady aged about 25 years old was found murdered by cutting her throat and all over her face near Ezhuthur lake. Based on his complaint, a case in Ramanatham Crime No. 394/91 under Section 302, IPC was registered and investigated. After investigation, accused 1 and 2 were charge sheeted for an offence under Section 302 read with 34, IPC. Before the learned Sessions Judge, the prosecution has examined 20 witnesses as P.Ws.1 to 20, marked Exs.P-1 to P-30 and M.Os.1 to 19 series in support of their case. Accepting the prosecution case, the learned Sessions Judge found accused 1 to 2 guilty Section 302 read with 34, IPC, convicted and sentenced each to imprisonment for life; hence the present appeal.

(3.) AT the foremost, let us consider whether the prosecution has established the alleged motive for the occurrence, which was spoken to by P.Ws. 11 and 12. P.W.11 is none-else than the mother of the deceased and mother-in-law of 1st accused. A-2 is A-1's cousin brother. According to P.W.11, the marriage between the deceased and A-1 was performed 10 years back and through the wed-lock two children were born to them. A-1 is a drunkard. He planned to marry his sister's daughter as 2nd wife. Prior to the occurrence, he was keeping her in his house itself and began to ill-treat the deceased. She further deposed that frequent quarrels between the deceased and the first accused arose and the deceased used to come to her mother's (P.W.11's) house and they would mediate the matter and send her back to her husband. She further deposed that 31/2 years prior to the occurrence, A-1 beat the deceased and drove her to her (P.W.11's) house. P.W.12, one of the panchayatdars, and others pacified both and mediated the matter and sent back the deceased with A-1. After 10 days, as P.W.11's husband was to go to Ayyappan temple, he wanted to see his daughter; accordingly he along with P.W.11 went to their daughter's house, and they saw the house of the deceased was locked. P.W.11 was told that the deceased along with A1 and A2 had gone for eking out their livelihood by selling baskets in other villages. On their request, P.W.12 and others went to the house of the deceased to see her, but her house was locked. They informed i t to P.W.11 and her husband. Thereafter, the husband of P.W.11-Kaliaperumal made a complaint to Andimadam Police Station. After three days, Ramanatham Police came to her house and showed photographs-M.O.3 series of a dead body of a female. P.W.11 identified the figure found in the photos as that of her daughter. She also handed over photos of the deceased-M.O.4, which was taken while she was alive, to the police. The other witness to speak about the dispute between A-1 and the deceased is P.W.12, a nati ve of Meensuritti Village. He also narrated the dispute between A-1 and the deceased happened prior to the occurrence and when the deceased came to her parents" house, it was he who pacified her and sent her back along with her husband-A-1. On the request of P.W.11 that their daughter was not found in her house, and in order to fulfill their anxiety, P.W.12 went to Koovathur and found that her daughter was not there and her house was locked. He informed the fact to P.W.11. Another witness to speak about the mis-understanding persisted between A-1 and the deceased is P.W.13. She is a resident of Koovathur and neighbour of A-1. She corroborates the evidence of P.Ws.11 and 12 and she also saw the deceased along with the 1st and 2nd accused wearing in red colour saree and red colour blouse. She also stated that a day prior to Karthigai Deepam i.e., 3 years prior to the date of her evidence, the deceased along with the accused came to her house and requested her to take care of her two children. Though P.Ws. 11, 12 and 13 say that prior to the occurrence, A-1 and the deceased used to quarrel with each other, on the advice of the panchayatdars, particularly on the advice of P.W.11, the deceased returned back with her husband-A-1. The perusal of the entire evidence do not impress us to accept the case of the prosecution for the following reasons. Even according to P.Ws.11 and 12, except one incident they were not able to say whether quarrel between A-1 and the deceased existed several times. Admittedly, A-1 and the deceased existed had two children, one male and a female. Unless a good relationship existed between them, it would not be possible for the wife-deceased to beget two children. Another point to be noted is that though P.W.13 has stated that a day prior to Karthigai Deepam, the deceased along with the accused came to her house and made a request to take care of their two minor children, it is not clear why the deceased had not taken any effort to entrust the children with her mother-P.W.11 who is residing in Meensuritti, a neighbouring village, when the bus fare Koovathur to Meesuritti being Rs.3. It is not the case of the prosecution that Koovathur village is not far away from Meensuritti village. Inasmuch as P.W.13 is not a close relative of the deceased, it is highly doubtful whether it would be possible to entrust her two minor children with her. P.W.13 also admitted that the mother of A-1 is residing in the same village i.e., Koovathur. In cross examination, P.W.13 admitted that whenever A-1 left his house on livelihood, he used to entrust his two minor children to his mother. P.W.13 has also admitted that she was facing a criminal case under Prevention of Immoral Traffic Act. On the date of her evidence, she was facing a case in Vridhachalam Court. In such a circumstance, we are of the view that the evidence of P.W.13 is highly unreliable and it is also very much doubtful whether the deceased had entrusted her minor children with P.W.13, more particularly in the light of her evidence in cross examination that A-1 had been in the habit of entrusting his children whenever he left his house for livelihood. As observed earlier, though P.Ws.11 and 12 have stated about the quarrel between A-1 and the deceased prior to the occurrence, in the light of the evidence of P.W.13 and other circumstances, referred to above, we are of the view that the evidence of P.Ws. 11, 12 and 13 are not beneficial to the prosecution case, unless they are supported by other evidence. In this regard, it is relevant to refer a decision of the Apex Court in State (Delhi Admn.) v. Gulzarilal, AIR 1979 SC 1382. Their Lordships have held that in cases where the case of the prosecution rests purely on circumstantial evidence, motive undoubtedly plays an important part in order to tilt the scale against the accused. They further held that it is also well settled that the accused can be convicted on circumstantial evidence only if the circumstances are wholly inconsistent with the innocence of the accused. In the light of our conclusion that the evidence of P.Ws. 11, 12 and 13 are unreliable, we are of the view that prosecution has failed to establish strong motive for the occurrence. It is also relevant to note that the motive as alleged by the prosecution has not even been mentioned in the First Information Report-Ex.P-1. In Ashok Yadav v. State of M.P., 1997 SCC (Cri) 317, Their Lordships of the Supreme Court had held that if there is no mention of motive in the complaint/F.I.R., it is to be presumed that motive was not been proved. In the instant case, as observed earlier, absolutely there is not reference or mention in Ex.P-12, which is the complaint given in Andimadam Police Station by Kaliaperumal, the husband of P.W.11 and father of the deceased, regarding the motive and even if we accept the evidence of the witnesses spoken to, it is much too feeble a motive.