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2015 DIGILAW 3065 (MAD)

S. Gopalakrishnan v. State

2015-09-11

S.NAGAMUTHU, V.S.RAVI

body2015
JUDGMENT : S. Nagamuthu, J. 1. The appellants are the accused Nos. 1 and 2 in S.C. No. 148 of 2006, on the file of the Additional District and Sessions Judge (Fast Track Court No. III), Madurai. There was yet another accused, by name, Mr. Chellapandi. Since Mr. Chellapandi was found to be a juvenile in conflict with law, the case against him was separately dealt with before the Juvenile Justice Board under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000. The accused Nos. 1 and 2 were dealt with by the Trial Court. The Trial Court framed as many as four charges as detailed below. Charge Accused Penal Provisions 1 1 and 2 120(B) r/w 302 IPC 2 1 and 2 302 r/w 34 IPC 3 1 and 2 364(A) and 34 IPC 4 1 and 2 380 r/w 34 IPC By Judgment dated 22.11.2007, the Trial Court convicted the accused Nos. 1 and 2, as detailed below: Accused No. Convicted under Sections Sentence imposed Fine amount 1 and 2 120 (B) r/w302 IPC To undergo imprisonment for life Rs.5,000/- each in default to undergo rigorous imprisonment for six months. 1 and 2 302 r/w 34 IPC To undergo imprisonment for life Rs.5,000/- each in default to undergo rigorous imprisonment for three months 1 and 2 364(A) and 34 IPC To undergo imprisonment for life Rs.3,000/- each in default to undergo rigorous imprisonment for three months 1 and 2 380 r/w 34 IPC To undergo rigorous imprisonment for five years Rs. 2,000/- each in default to undergo rigorous imprisonment for two months. The sentences have been ordered to run concurrently. As against the said conviction and sentence, the appellants have come up with these Criminal Appeals. 2. The case of the prosecution, in brief, is as follows: The deceased, in this case, was one Ms. Maheshwari. PW-1 is her husband. PW-1, the deceased and their children were all residing at Angayarkanni Street, Jaihindpuram, Madurai. The first accused was also residing in the same street in the house belonging to one Mr. S. Murugan (PW-6). 3.1. On 14.12.2005, at 10.00 AM, PW-1 had left for his shop, leaving behind the deceased alone at his house. At 10.00 PM, on the same day, when he returned home, he found the deceased missing. The first accused was also residing in the same street in the house belonging to one Mr. S. Murugan (PW-6). 3.1. On 14.12.2005, at 10.00 AM, PW-1 had left for his shop, leaving behind the deceased alone at his house. At 10.00 PM, on the same day, when he returned home, he found the deceased missing. He enquired his brother - PW-3, who was then residing in his house, situated on the backside of the house of PW-1. PW-3 told that by around 02.30 PM, the first accused had taken the deceased with her under the pretext of giving money for purchasing kerosene. According to PW-3, thereafter, the deceased was not seen. PW-1 and PW-3 went in search of the deceased and they could not find her anywhere. PW-1 informed PW-4, the brother of the deceased, about the same. PW-4 also came to the house of PW-1 and searched for the deceased for the whole night. They could not find the deceased anywhere. But, the house of the first accused was found locked and she was not seen. 3.2. On 15.12.2005, at about 08.30 AM, there was a phone call to the shop owned by PW-5 in the same street. The caller wanted to speak to PW-1. PW-5, therefore, informed PW-1 about the same. Then, PW-1 received the phone call. The caller told him that he along with one Ms. Murugeshwari - the first accused had abducted the deceased and kept her near a Mosque at Thiruparankundram and he wanted PW-1 to pay a sum of Rs. 1,00,000/- as ransom. The caller further told him that he would kill the deceased, if PW-1 had gone to the police. The caller identified himself as one Gopal @ Gopalakrishnan. PW-1 informed the same to PW-4. PW-8 is yet another brother of the deceased. PW-1 informed him about the same. Then, all of them went to Thiruparankundram and found nobody there. Therefore, they returned and again searched for the deceased. PW-1 came to the occurrence village by about 05.00 PM. Then, as dictated by PW-1, PW-2 drafted a complaint. Then, they went to the Police Station and presented the complaint, at 06.30 PM. 3.3. PW-16, the then Inspector of Police, Jaihindpuram Police Station, received the complaint from PW-1 and registered a case in Crime No. 163 of 2005, under Section 364 of the Indian Penal Code. Then, as dictated by PW-1, PW-2 drafted a complaint. Then, they went to the Police Station and presented the complaint, at 06.30 PM. 3.3. PW-16, the then Inspector of Police, Jaihindpuram Police Station, received the complaint from PW-1 and registered a case in Crime No. 163 of 2005, under Section 364 of the Indian Penal Code. EX-P1 is the complaint and EX-P 19 is the First Information Report. Then, he forwarded both the documents to the Court and proceeded to the place of occurrence. He examined PW-1 to PW-6 and few more witnesses on the spot. At that time, PW-16 found the house of the first accused locked. Out of suspicion, PW-16 opened the house of the first accused in the presence of PW-3 and PW-6. Inside the house, in the kitchen, behind the door, a gunny bag was found. There was some material inside. The top of the gunny bag was tied with a cable wire. There were bloodstains around the gunny bag. PW-16 untied the gunny bag and opened the same. In the gunny bag, he found the dead body of the deceased with multiple injuries. The jewels worn by the deceased, weighing around 20 sovereigns, were found missing. Then, PW-16 altered the case into one under Sections 302 and 380 of the Indian Penal Code and forwarded the alteration report (EX-P. 20) to the Court. Then, he prepared an Observation Mahazer and a Rough Sketch, showing the place, where the gunny bag was found. He recovered gunny bag (MO-10), cable wire (MO-11), bloodstained mosaic floor (MO-12) and sample mosaic floor (MO-13), under a mahazer. Then, he conducted inquest on the body of the deceased. EX-P. 22 is the inquest report. Then, he forwarded the dead body for postmortem. 3.4. PW-9 - Dr. T. Jaisingh conducted autopsy on the body of the deceased, at 11.45 AM, on 16.12.2005. He noticed the following injuries: "1. Transversely oblique laceration noted over left forehead 1 cm above the middle of left eye brow measuring 2 X 0.5 X muscle deep with surrounding bruising of 4 X 2 cm is noted. 2. On dissection of scalp, skull and dura: sub scalpal contusion 10 X 6 cm is noted over both side frontal. Sub scalpal haematoma 6 X 4 X 0.5 cm is noted on the right frontal region. Brain cut section liquefied. 2. 2. On dissection of scalp, skull and dura: sub scalpal contusion 10 X 6 cm is noted over both side frontal. Sub scalpal haematoma 6 X 4 X 0.5 cm is noted on the right frontal region. Brain cut section liquefied. 2. 10 X 4 cm contusion noted on the left chin and lower lip. On dissection - underlying muscles bruised. 3. A crescentic linear nail mark measuring 1.5 X linear X skin deep noted over left sided chin 2 cm below and lateral to the left side angel of mouth. The conversity facing laterally. 4. Three crescentic nail marks noted on the right side cheek situated one below the other. Each measuring 1 cm X linear X skin deep, 1 cm linear X skin deep, 0.75 X linear X skin deep separated by 1 cm, 1.5 cm. The conversity facing laterally. On dissection underlying tissues found bruised. 5. Three lacerated injury noted on the inner aspect of the lower lip each measuring 0.5 cm X linear X muscle deep separated by 0.25 cm each with surrounding bruising. 6. bloodless dissection of neck: Contusion of the front of the neck over the thyroid, cricoid, cartilages, measuring 6 X 4 cm. A vertical fracture of thyroid cartilage in its middle and both superior cornu in its upper 3rd with surrounding bruising noted. The surrounding muscle are bruised. Hyoid bond and cricoid cartilage intact". He gave opinion that the deceased would appear to have died of asphyxia due to combined effect of closure of mouth and nostrils and compression of the neck (smothering and throttling) 2 to 3 days prior to autopsy. EX-P. 9 is the postmortem certificate. 3.5. Then, PW-16 handed over the case diary to PW-17. PW-17 took up the case for investigation and examined number of witnesses. On 17.12.2005, at 06.30 AM, at Villa-puram Housing Board, near Muthunagammal Kovil Bus Stop, in the presence of PW-8 and another witness, PW-17 arrested all the three accused together. On such arrest, the first accused gave a voluntary confession, in which she disclosed that she had hidden the golden jewels and cable wire behind the house, bearing Door No. 67, Pulipandian Street. On such arrest, the first accused gave a voluntary confession, in which she disclosed that she had hidden the golden jewels and cable wire behind the house, bearing Door No. 67, Pulipandian Street. In pursuance of the same, she took PW-17, PW-8 and another witness to the said place and produced MO-1 - Gold Thali Chain, M.O.-3 - gold bangles (numbering two), M.O.-8 - gold nose screw, M.O.-11 - cable wire, M.O.-14 - a bloodstained saree, M.O.-15 - bloodstained jacket and M.O.-22 - polythene white colour bag. PW-17 recovered all the articles under EX-P. 6, a mahazer. The second accused gave a voluntary confession, in which he disclosed the place, where he had hidden a Hero Honda Cycle and the place, where he had hidden the gold jewels. In pursuance of the same, he produced the Hero Honda Cycle (MO-16). Then, the second accused took PW-17, PW-8 and another witness to the house bearing Door No. 28, at Bagavathi Street and produced gold ear rings (MO-6), gold mottal (MO-7), blue colour pant (MO-23) and yellow colour shirt (MO-24). PW-17 recovered the same in the presence of the witnesses under a mahazer. The juvenile accused - Mr. Chellapandy also gave a voluntary confession, but, no discovery of any fact was made out of his disclosure statement. Then, he forwarded the accused to the Court and made a request to the Court to forward the material objects for chemical examination. EX-P. 18 is the chemical analysis report, which revealed that human blood was found on MO-10 to MO-19. Finally, on completing the investigation, he laid charge sheet against all the accused. 3.6. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused were questioned in respect of the charges, they pleaded innocence. In order to prove the charges, on the side of the prosecution, 17 witnesses were examined, 24 documents and 24 material objects were marked. 3.7. Out of the said 17 witnesses, PW-1 is the husband of the deceased, who has stated about the missing of the deceased and the presentation of the complaint to the police. He has also spoken about the fact that PW-3 told him that the deceased was taken by the first accused. 3.7. Out of the said 17 witnesses, PW-1 is the husband of the deceased, who has stated about the missing of the deceased and the presentation of the complaint to the police. He has also spoken about the fact that PW-3 told him that the deceased was taken by the first accused. He has further stated that he received a phone call, at 08.30 AM, on 15.12.2005, from an unknown caller stating that he along with one Murugeshwari abducted the deceased and demanded ransom. He has identified MO-1 to MO-9 as the stolen gold jewels. PW-2 has spoken about the drafting of the complaint by him and the presentation of the same by PW-1 to the police. PW-3 is the brother of PW-1, who has stated that at 02.30 PM, on 14.12.2005, he found the first accused taking the deceased under the guise of giving her money for purchasing kerosene. He has further stated about the fact that he along with PW-1 searched for the deceased for the whole night. He has also stated about the phone call received by PW-1. 3.8. PW-4 is the brother of the deceased. He has stated that on information from PW-1, he came to the occurrence place and he found the house of the first accused locked. He has further stated that when the house was found opened, he found the dead body inside the house. PW-5 is the shop owner, who has stated that to his telephone, a phone call was made by someone and the caller wanted to speak to PW-1. Therefore, he called PW-1. PW-1 came and attended the phone call. He has further stated that PW-1 told him about the conversation between him and the caller. PW-6 is the owner of the house, where the dead body was found. He has stated that the first accused was residing in the house. PW-7 has spoken about the preparation of the observation mahazer and the rough sketch. He has further spoken about the recovery of the material objects from the place of occurrence. PW-8 is the brother of the deceased. He has stated that on 17.12.2005, at 07.30 AM, when he was on his routine walk, at Villapuram Bus Stop, all the three accused were arrested by the police. He has further spoken about the confessions made by the accused and the consequential recoveries of the material objects. 3.9. PW-9, Dr. PW-8 is the brother of the deceased. He has stated that on 17.12.2005, at 07.30 AM, when he was on his routine walk, at Villapuram Bus Stop, all the three accused were arrested by the police. He has further spoken about the confessions made by the accused and the consequential recoveries of the material objects. 3.9. PW-9, Dr. T. Jaisingh, has spoken about the autopsy conducted by him and his final opinion regarding the cause of death and the time of death. PW-10 has stated that he was then running a cycle hire shop. On 14.12.2005, according to him, between 11.00 AM and 12.00 noon, one Gopal had taken a cycle from his shop. He has not identified the cycle. He has turned hostile and he has not supported the case of the prosecution in any manner. PW-11 is the Head Constable, who carried the First Information Report as well as the alteration report to the Court from the Police Station. PW-12 is the Head Constable, who carried the dead body of the deceased to the hospital for postmortem. He has spoken about the same. PW-13 is the Sub-Inspector of Police, attached to the Madurai Therkuvasal Police Station. He has spoken about the arrest of all the three accused, their confession statements and the consequential recoveries of the material objects. PW-14 is the photographer, attached to the Forensic Department. He has stated that he took photographs of the dead body in various angles at the place of occurrence. PW-15 is the Head Clerk of the Court, who has spoken about the forwarding of the material objects for chemical examination, on the orders of the learned Judicial Magistrate. PW-16 and PW-17 are the Investigating Officers, who have spoken in detail about their respective investigation done by them and the filing of final report. 3.10. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against them, they denied the same as false. However, they did not choose to examine any witness nor to exhibit any document. Their defence was a total denial. The first accused took a specific stand that she was not residing in the house, where the dead body was allegedly found. However, they did not choose to examine any witness nor to exhibit any document. Their defence was a total denial. The first accused took a specific stand that she was not residing in the house, where the dead body was allegedly found. Having considered all the above materials, the Trial Court convicted the accused, as detailed in the first paragraph of this Judgment and punished them accordingly. That is how, the appellants are now before this Court with these Criminal Appeals. 3. We have heard the learned Senior Counsel appearing for the appellant in Crl.A. (MD). No. 49 of 2008, the learned Legal Aid Counsel appearing for the appellant in Crl. A (MD). No. 456 of 2010, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully. 4. The learned counsel for the appellants would submit that the prosecution has not proved the circumstances projected by it beyond reasonable doubts. They would submit that the conduct of PW-1 to PW-3 and PW-8 would go to show that they have not come forward with the true version of the occurrence. The learned counsel would further submit that absolutely, there is no explanation for the enormous delay in preferring the complaint, which creates doubt in the case of the prosecution. The learned counsel would further submit that the telephonic talk allegedly made to PW-1 through the telephone of PW-5 has not been established by producing the call details from the BSNL. The learned counsel would further submit that the arrest of all the three accused together on 17.12.2005, at 06.30 AM, cannot be true, in view of the fact that PW-1 himself has stated that at 06.00 AM, on 16.12.2005 itself, the first accused was found and PW-1 to PW-3 enquired her about the whereabouts of the deceased. Thus, according to the learned counsel, the first accused was very much available with PW-1 and others and therefore, the story of the prosecution that she was arrested only at 06.30 AM, on 17.12.2005 cannot be true. Thus, according to the learned counsel, the consequential recoveries of the material objects and the alleged disclosure statements made by the accused cannot be true. They would further submit that the jewels marked as material objects are all new jewels and therefore, they would not have been the stolen properties. Thus, according to the learned counsel, the consequential recoveries of the material objects and the alleged disclosure statements made by the accused cannot be true. They would further submit that the jewels marked as material objects are all new jewels and therefore, they would not have been the stolen properties. The learned counsel would further submit that the prosecution has failed to prove that the house, where the dead body was found, was exclusively in the possession and enjoyment of the first accused. At any rate, since there are lot of doubts in the case of the prosecution, according to the learned counsel, the conviction and sentence imposed on the appellants by the Trial Court are liable to be set aside. 5. The learned Additional Public Prosecutor would, however, oppose this Criminal Appeal. According to him, the prosecution has proved all the circumstances, more particularly, the vital circumstances also beyond reasonable doubts. He would further submit that the delay in preferring the complaint has been duly explained away by PW-1 and PW-2 and there is no reason to reject the same. He would further submit that the missing of the jewels were noticed as soon as the dead body was found inside the house of the first accused. The house was also found locked. The first accused had no explanation to offer as to how the dead body was found inside the house, the learned Additional Public Prosecutor contended. He would further submit that on the arrest of these two accused, the stolen articles were recovered respectively from their possession. The jewels were duly identified by PW-1 as the stolen articles. Thus, according to the learned Additional Public Prosecutor, since the murder and the theft had taken place in one and the same occurrence, by proving the possession of the stolen articles in the hands of the accused, soon after the commission of the theft, the prosecution has proved that these accused had committed the murder of the deceased. Thus, according to the learned Additional Public Prosecutor, the prosecution has proved the case beyond reasonable doubts and therefore, the conviction and sentence imposed on the appellants by the Trial Court do not warrant any interference at the hands of this Court. 6. We have considered the above submissions. 7. Thus, according to the learned Additional Public Prosecutor, the prosecution has proved the case beyond reasonable doubts and therefore, the conviction and sentence imposed on the appellants by the Trial Court do not warrant any interference at the hands of this Court. 6. We have considered the above submissions. 7. This being a case based on circumstantial evidence, the prosecution is required to prove the circumstances projected by it beyond reasonable doubts and the proved circumstances should establish a close link between each other and form a complete chain unerringly pointing to the guilt of the accused and there should not be any other hypothesis, which will be inconsistent with the guilt of the accused. Keeping this broad principles in our mind, let us now examine as to whether the prosecution has proved the circumstances projected by it beyond reasonable doubts. 8. Admittedly, the deceased was residing along with PW-1 in the house at Angayarkanni Street, Jaihindpuram, Madurai. PW-1 lastly saw the deceased alive at 10.00 AM, on 14.12.2005. Thereafter, he left for his shop. After that, according to PW-3, he found the deceased alive in the company of the first accused, at 02.30 PM, on 14.12.2005. PW-3 is none other than the brother of PW-1. He has stated that he found the first accused taking the deceased for the purpose of giving money for kerosene. After 02.30 PM, the deceased was not seen anywhere alive. Thus, it was PW-3, who lastly had seen the deceased alive. 9. PW-1 returned home at 10.00 PM, on 14.12.2005 and found the deceased not available at his house. He, along with his relatives, went in search of the deceased for the whole night. It was quite natural. But, during cross-examination, he has admitted that on 15.12.2005, after PW-3 had told him that the deceased was taken by the first accused, he found the house of the first accused locked. Therefore, he enquired the owner of the house, viz., PW-6. PW-6 informed him that it was the usual practise of the first accused to lock the house in the evening, stay over night at the house of her sister-in-law and return back only in the next day morning. Therefore, he enquired the owner of the house, viz., PW-6. PW-6 informed him that it was the usual practise of the first accused to lock the house in the evening, stay over night at the house of her sister-in-law and return back only in the next day morning. It is quite strange that though the house of the sister-in-law of the first accused is situated somewhere near the place of occurrence, PW-1 to PW-3 and the other relatives, who were searching for the deceased, did not go to the house of the sister-in-law of the first accused in search of her to know about the whereabouts of the deceased. This conduct of PW-1 to PW-3, PW-6 and the other relatives of the deceased creates doubt about the statement of PW-3 that he had seen the deceased in the company of the first accused. 10. During cross-examination, PW-1 has further admitted that on 15.12.2005, at 06.00 AM itself, the first accused returned with her child. She was taken by PW-6 to the house of PW-1. Then, PW-1 to PW-3 and PW-6 enquired the first accused about the whereabouts of the deceased. It is further admitted by PW-1 that at that time, the first accused told him that the deceased received money from her in the afternoon of 14.12.2005 and thereafter, left with another man in an auto. This happened at 06.00 AM. Thereafter, the first accused continued to be in the company of PW-1 to PW-3 and PW-6 and she did not abscond. This conduct of the first accused in voluntarily returning at 06.00 AM, on 15.12.2005, going to the house of PW-1, making a statement and then, continuing to be in the company of the family members of the deceased would all also create some doubt in the case of the prosecution about the involvement of the first accused. 11. It is further stated by the prosecution that the first accused was found missing until she was arrested, at 06.30 AM, on 17.12.2005, at Jaihindpuram Bus Stop. This fact is difficult to be believed, in view of the fact that PW-1, during cross-examination, has admitted that the first accused was very much available with them, on 15.12.2005 from 06.00 AM onwards and she co-operated with them, when they were searching for the deceased. 12. This fact is difficult to be believed, in view of the fact that PW-1, during cross-examination, has admitted that the first accused was very much available with them, on 15.12.2005 from 06.00 AM onwards and she co-operated with them, when they were searching for the deceased. 12. The next circumstance projected by the prosecution is that at 08.30 AM, on 15.12.2005, someone called PW-5 over phone. PW-5 was owning a shop in the same street. The caller wanted to speak to PW-1. According to him, he informed PW-1 and PW-1 came to the shop and attended the phone call. The caller identified himself as Gopalakrishnan. Now, it is the case of the prosecution that the caller is the second accused, viz., Mr. Gopalakrishnan. Admittedly, the second accused was not previously known to PW-1 or any other witnesses. PW-1 was also not familiar with the voice of the second accused. Therefore, PW-1 cannot say as to whether the caller was the second accused or someone else. 13. The learned counsel for the appellants would dispute the very phone call received by PW-1. Had it been true that such a phone call was received to the telephone of PW-5, the call details of said the phone could have been collected and produced to prove the said fact. The same has not been done. The learned counsel would further submit that the telephone facility available at the shop of PW-5 had only outgoing facility, as it was running as one rupee coin box dialer. Therefore, according to the learned counsel, there is no possibility for any incoming phone call to the said number. A perusal of the evidence of PW-5 would go to show that there are indications that the said phone was functioning as one rupee coin box dialer. It is common knowledge that such phone would not have any incoming phone call facility. It has not been clearly established by the prosecution that the said phone had incoming call facility. It is not explained to the Court as to why someone from the BSNL had not been examined to prove that the said telephone had incoming call facility and also to prove that at 08.30 AM, on 15.12.2005, a phone call was received through the said telephone. This, in our considered view, is a very serious flaw in the case of the prosecution. 14. This, in our considered view, is a very serious flaw in the case of the prosecution. 14. It is further stated by PW-1 that the caller identified himself as Gopalakrishnan. He has further stated that he along with one Murugeshwari had abducted the deceased and kept her near a Mosque at Thiruparankundram and demanded ransom from him to the rune of Rs. 1,00,000/-. Now, it is stated that Ms. Murugeshwari, as mentioned by the caller, is none other than the first accused. If the said statement is to be believed, then, it goes without saying that since PW-1 had seen the first accused with him from 06.00 AM onwards, he would have been sure that the caller was telling lies and there was some foul play in the matter. It is not understandable as to why PW-1 believed the statement of the caller that the second accused had kept the deceased at Thiruparankundram, when the fact remains that the first accused was very much available with them. 15. The next doubt raised by the learned counsel for the appellants is that at least, after receiving the so-called telephone call, PW-1 should have become panic. By all natural human conduct, PW-1 would have gone to the police immediately with a complaint. The caller told him that if he had gone to the police with any complaint, he would kill his wife. It is not at all the case of PW-1 that out of fear, he did not go to the police. The complaint was preferred only at 06.00 PM, on 15.12.2005. Thus, from 08.30 AM to 06.00 PM, there was no complaint made to the police, for which, absolutely, there is no plausible explanation. It is understandable that PW-1 and his relatives were searching for the deceased for the whole night and therefore, they did not give any complaint. To this extent, the delay in preferring the complaint is not fatal to the case of the prosecution. But, certainly, the delay in preferring the complaint, at least, after receiving the telephone call allegedly at 08.30 AM till 06.00 PM is fatal to the case of the prosecution, as there is no plausible explanation at all. 16. Yet another strong doubt in the case of the prosecution is that according to the case of the prosecution, the house, where the first accused was residing, was found locked. 16. Yet another strong doubt in the case of the prosecution is that according to the case of the prosecution, the house, where the first accused was residing, was found locked. PW-1 had suspicion against the first accused. The first accused came in the morning by 06.00 AM itself. Even after that, it is not the case of the prosecution that the house was not at all opened by the first accused. It is highly doubtful that from 06.00 AM, on 15.12.2005, till 06.00 PM, until the complaint was given to the police, the house, where the dead body was found, would not have been opened by the first accused. Assuming that the house was not opened, it is not as though the first accused were absconding between 06.00 AM and 06.00 PM. After the case was registered, PW-16 came to the place of occurrence. According to him, the house was still found locked. The house was broken open. It is not explained as to why the house was broken open at 08.30 PM, on 15.12.2005, when the first accused was very much available from 06.00 AM onwards. Had it been true that the house was broken open, the broken lock should have been recovered by the police. Neither in the observation mahazer nor in any other records, there is mention that the lock was broken open. PW-1 and the other witnesses have categorically stated that the lock was hanging outside the door of the house. Therefore, in order to open the house, the lock should have been broken. If that is true, the broken lock should have been recovered. But, there is no indication anywhere that the lock was broken and then, the house was opened. This also creates doubt in the case of the prosecution. 17. Then comes the house, where the dead body was found. It is the case of the prosecution that the first accused was residing in the house along with her child. But, PW-6, the owner of the house, has stated that the house was given on rent to one Mr. Sounder. As a remand prisoner, Mr. Sounder, was in jail in connection with some other case. The prosecution has not let in any evidence to show that the said house, where the dead body was found, was in the exclusive possession and enjoyment of the first accused. Sounder. As a remand prisoner, Mr. Sounder, was in jail in connection with some other case. The prosecution has not let in any evidence to show that the said house, where the dead body was found, was in the exclusive possession and enjoyment of the first accused. Had it been proved by the prosecution that in the said house, the first accused alone was residing, it can be presumed that she would have some role to play in the murder of the deceased, since the dead body was found inside the house and the house was found locked, for which the first accused had no explanation at all. But, in this case, as we have already pointed out, there is no evidence let in by the prosecution to prove that the house was in the exclusive possession and enjoyment of the first accused and the house was locked only by her. The first accused had taken the plea that she was not at all residing in the said house and she was residing elsewhere with her child. 18. It needs to be noted, at this juncture, that no one else has been examined from the said locality, more particularly, the neighbours of the house, where the dead body was found, to prove that the first accused was exclusively residing in the said house. PW-6, even in chief-examination, has stated that at 08.00 PM, on 15.12.2005, PW-16, the Inspector of Police, wanted him to identify the house, where Ms. Murugeshwari, W/o. Mr. Sounder was residing. Then, he identified the house, which was found locked. This cannot be true, because PW-16, on arrival to the place of occurrence, was also informed by PW-1 about the house of the first accused. Therefore, there would have been no occasion for PW-16 to ask PW-6 to identify the house of the first accused. This statement of PW-6 also adds more doubt. 19. The prosecution mainly relies on the recovery of the material objects, viz., gold jewels at the instance of the accused Nos. 1 and 2. According to the case of the prosecution, on 17.12.2005, at 06.30 AM, PW-8 was going on a routine walk to the bus stop and at that time, the police suddenly appeared there and arrested all the three accused together near the bus stop. 1 and 2. According to the case of the prosecution, on 17.12.2005, at 06.30 AM, PW-8 was going on a routine walk to the bus stop and at that time, the police suddenly appeared there and arrested all the three accused together near the bus stop. This appears to be a highly artificial for the simple reason that PW-8 is none other than the brother of the deceased. He is a resident of Munichalai in Madurai. On 14.12.2005 itself, he had come to the house of PW-1 on receiving information from PW-1 that the deceased was found missing. PW-8 has admitted that he went in search of the deceased for the whole night on 14.12.2005 along with PW-1. On 15.12.2005, according to PW-8, he again went to the house of PW-1. It was only at that time, PW-1 received a phone call through the telephone of PW-5. The dead body was found at 08.00 PM, on 15.12.2005 itself. He has further admitted that on 16.12.2005, he went to the hospital, where the postmortem was conducted and after the dead body was handed over, he accompanied the dead body and he was very much present till the dead body was cremated. He continued to be in the house of PW-1 from 15.12.2005 onwards, because, as a brother of the deceased, he had to perform certain religious ceremonies. 20. On 17.12.2005, according to PW-8, he went for a routine walk in the morning. It is unbelievable that even after seeing him, the accused, who had earlier known to PW-8, would have still remained at the bus stop, without escaping. It is highly unbelievable that at the crucial movement, suddenly, the police appeared there and arrested all the three accused. Thus, the presence of the accused at the bus stop, the arrival of PW-8 to the bus stop, the arrival of PW-16 and the other police officials to the bus stop happened incidentally at the one and the same time. This is again highly doubtful. PW-8 has further admitted that at 09.00 AM, on 17.12.2005, he had gone to the cremation ground to participate in the other rituals. But, according to PW-16, at 11.30 AM, at the instance of the first accused, the stolen articles were recovered and that at 01.00 PM, on 17.12.2005, the stolen articles and all the material objects were recovered from the second accused. But, according to PW-16, at 11.30 AM, at the instance of the first accused, the stolen articles were recovered and that at 01.00 PM, on 17.12.2005, the stolen articles and all the material objects were recovered from the second accused. The admission of PW-8 that on 17.12.2005, from 09.00 AM onwards, he was in the cremation ground participating in the last rites of the deceased would go to falsify the case of PW-16 that PW-8 was in his company from 06.30 AM onwards and at the instance of the accused Nos. 1 and 2, all the jewels were recovered between 11.30 AM and 01.00 PM cannot be true. This doubt is further strengthened by the admission made by PW-1 that the first accused was very much available with them from 06.00 AM onwards, on 15.12.2005. Thus, the so-called disclosure statements made by the accused 1 and 2 and the consequential recoveries of the articles at their instance, cannot be believed. 21. The prosecution has succeeded in proving that the death of the deceased was by homicide, but, who caused the homicide of the deceased and who committed the theft of the gold ornaments of the deceased have not been clearly established by the prosecution. Similarly, who gave false information through the telephone of PW-5 to PW-1 also has not been established. Thus, in our considered view, the prosecution has not proved the circumstances projected by it beyond reasonable doubts. Though the prosecution has succeeded to some extent in establishing the suspicion against accused, mere suspicion cannot take the place of proof of the guilt of the accused. As we have already pointed out, the prosecution needs to prove the case beyond reasonable doubts. But, in the instant case, the prosecution has failed to do so. Therefore, we find it difficult to sustain the conviction and sentence imposed on the appellants by the Trial Court. In the result, these Criminal Appeals are allowed; the conviction and sentence imposed on the appellants, by Judgment dated 22.11.2007, made in S.C. No. 148 of 2006, on the file of the learned Additional District and Sessions Judge (Fast Track Court No. III), Madurai, are set aside and the appellants are acquitted. Fine amount, if any, paid by the appellants shall be refunded to them. Bail bond executed by the appellants and the sureties shall stand terminated.