JUDGMENT
S. Ashok Kumar, J.
1. The appellant was the sole accused in S.C.No.207 of 1999 on the file of the Additional Sessions Judge, Villupuram. He was convicted to undergo R.I. for ten years and to pay fine of Rs. 500/-, in default to undergo R.I. for one month under Section 394 I.P.C. r/w Section 397 I.P.C., to undergo imprisonment for life and to pay a fine of Rs. 500/-, in default to undergo R.I. for one month for offence under Section 302 I.P.C., and also to undergo another R.I. for seven years and to pay a fine of Rs. 500/-, in default to undergo R.I. for one month for offence under Section 307 I.P.C., and the sentences are to run consecutively.
2. The brief facts leading to the conviction of the accused are as follows:-
(i) P.W.2 Arumugam is a resident of Kottamedu Village, Thirukoilur Taluk. He was having three children, namely, two daughters and one son. P.W.1 Palaniammal is his eldest daughter and the deceased Priya is the youngest. On 16.01.1999, at 01.00 p.m., P.W.1 and her younger sister, the deceased Priya, went to a well at the backyard of their land for taking bath. At that time, P.W.1 was wearing gold gimmicky and studs and also anklet (bfhYR). At that time, an unknown person (accused) threatened P.W.1 at knife point to part with the golden studs and gimmicky. The accused himself removed the gimmicky and studs, he threatened P.W.1 to give the anklets. Hence, P.W.1 gave the anklet also. Since the deceased raised an alarm, he threw the deceased into the well and also stabbed twice with stones on the head of P.W.1, who was in the well water. The accused cut on the right side neck of P.W.1 and ran away. On hearing the alarm raised by P.W.1, P.W.2, her father, who was grazing the cattle about at a distance of half furlong, chased the accused to some distance, but could not catch the accused. P.W.3 Iyyappan and one Anchamani took the body of the deceased Priya found in the well. P.W.6 Balakrishnan and one Chandran took P.W.1 to Thirukoilur hospital in a T.V.S.50, from where, she was referred to Villupuram Headquarters Hospital.
(ii) P.W.10 Sundaramoorthy, Sub Inspector of Police, in charge of Thirukoilur Police Station, received a telephonic message from Thirukoilur hospital at 03.10 p.m. on the same day. At about 03.15 p.m., he enquired P.W.1 and obtained Ex.P.1 statement, which was attested by Dr. Rajkumar, who certified that P.W.1 was conscious and in a fit state of mind to give the statement. P.W.10 returned to the Police Station and registered a case in Crime No.21 of 1999 under Sections 302 and 394 I.P.C. The printed form of F.I.R. is Ex.P.10. The F.I.R. reached the Court at 10.30 a.m. on 17.01.1999 through P.W.9 Muthusamy, Head Constable.
(iii) P.W.13 Thangapandian, Inspector of Police received the F.I.R. at 05.30 p.m. on 16.01.1999 and proceeded to the place of occurrence. In the presence of P.W.7 and one Govindan, he prepared Ex.P.6 observation mahazar and also Ex.P.14 sketch. He also seized two stones, M.Os.3 and 4 and also M.O.5 a pair of chappals under the cover of Ex.P.7 mahazar. Between 07.30 and 10.00 p.m. on the same day, he held inquest on the body of deceased Priya in the presence of Panchayathars. Ex.P.15 is the inquest report. During the inquest, he examined P.W.2 Arumugam, P.W.3 Iyyappan, P.W.6 Balakrishnan, one Devaki, Chandran and Anjamani. With a requisition, Ex.P.8, he sent the body for postmortem. He went to Thirukoilur hospital and examined Dr. Rajkumar, who gave first treatment to P.W.1. He also examined P.W.1 and P.W.5 Dr. Thambidurai.
(iv) On 17.01.1999, between 12.00 noon and 01.00 p.m., Dr. Jayaraj Rajkumar of Government Hospital, Thirukoilur, conducted autopsy on the body of the deceased and found that all the other organs were normal, but for lungs which were filled up by water. He has given an opinion that the death was due to asphysia occurred 24 hours prior to the postmortem. Since Dr. Jayaraj Rajkumar was no more, P.W.12 Dr. Kaliaperumal, who was working with Dr. Jayaraj Rajkumar, has deposed about the postmortem conducted by Dr. Jayaraj Rajkumar and also about Ex.P.13 postmortem certificate issued by Dr. Jayaraj Rajkumar.
(v) Continuing the investigation, P.W.13 examined Dr. Jayaraj Rajkumar, who conducted the postmortem, and also P.Ws.8 and 9, and sent M.Os.3, 4 and 5 to the Court under Form No.95.
(vi) Further investigation was taken up by P.W.14, Nandagopal, Inspector of Police, who was in additional charge of Thirukoilur Police Station. On 29.05.1999, when he was investigating a case in Crime No.137 of 1999 under Section 302 and 379 I.P.C., he arrested the accused at Thirukoilur-Arumbakkam Bus stop in the presence of P.W.11 Moorthy and one Palani, and recorded the confession statement volunteered by the accused. In pursuance of the said confession, the accused took P.W.14 and the witnesses to his house, from where, M.O.1 series gold stud with gimmicky and M.O.2 series anklet were recovered under a cover of mahazar Ex.P.12 along with other properties in the case in Crime No.137 of 1999. He examined P.W.11 Moorthy and Palani and recorded their statements. He sent a requisition to the Chief Judicial Magistrate to arrange for identification parade. The Chief Judicial Magistrate passed Ex.P.2 order for conducting identification parade. Thereafter, investigation was taken up by P.W.15 Sekar, Circle Inspector, Thirukoilur.
(vii) P.W.4 Rajendran, Judicial Magistrate No. I, Ulundurpet, on the orders of the Chief Judicial Magistrate, conducted identification parade on 26.06.1999 at Cuddalore Central Prison, where P.W.1 Palaniammal identified the accused.
(viii) P.W.15 examined P.W.1 again regarding the identification parade and on 22.07.1999, he filed charge-sheet against the accused for offence under Sections 394 I.P.C. read with Sections 397, 307 and 302 I.P.C.
3. During trial, on behalf of the prosecution, P.Ws.1 to 15 were examined, Exs.P.1 to P.15 were filed and M.Os.1 to 5 were marked. On behalf of the accused, no oral or documentary evidence was produced.
4. When the accused was questioned under Section 313 Cr.P.C. regarding the incriminating circumstances appearing in the evidence of the prosecution witnesses, he denied such witnesses as false and not known, and further stated that P.W.1 identified him only at the instance of Police and that he has not committed any offence and the Police have unjustifiably filed this false case against him.
5. After considering the oral and documentary evidence available on record, the learned Additional Sessions Judge has convicted the accused for offences under Sections 394 I.P.C. read with Sections 397, 302 and 307 I.P.C., Section 302 I.P.C. and also Section 307 I.P.C. imposing sentences mentioned supra.
6. Mr. R. Malarvannan, who appeared as Amicus Curiae for the appellant, strenuously contends that the accused has been foisted in this case and for such contention, he submits that on the previous day of the identification parade, the accused was taken to Thirukoilur Judicial Magistrate’s Court, where P.W.1 was brought and the accused was shown to P.W.1 and that the occurrence took place on 16.01.1999 and in a case of robbery, where the motive is to make an unlawful gain, the accused will not keep all the jewels in his house for nearly five months and recovery of jewels nearly after five months of the occurrence is unbelievable, and prays that the accused must be acquitted.
7. Mr. E. Raja, learned Additional Public Prosecutor submits that the identification parade has been conducted by P.W.1 observing all the norms and legal formalities, that there is no proof that the accused was shown to P.W.1 before the identification parade held on 23.06.1999 and also that the recovery of M.O.1 series and M.O.2 series could not be doubted, because of lapse of five months time, since the accused was afraid of disposing of those valuables within his area and planned to dispose of the same at Bombay in a future date, but was caught by the Police before disposal of the valuables.
8. We gave our anxious consideration to rival contentions of the learned Counsel for the appellant and also the learned Additional Public Prosecutor, and also perused the materials on record.
9. P.W.1 is the daughter of P.W.2 and she was aged 12 years at the time of occurrence. Ex.P.1 complaint was lodged while she was under treatment in hospital. She has given a clear version as to how the occurrence happened. Even though she could not mention the name of the accused, she has mentioned that the person who committed the offence was aged about 25 years and also a tall man wearing white shirt and white dhoti. In Ex.P.1 complaint also, she has narrated that while herself and her younger sister were at their well to take bath, the accused came there, showed a knife and demanded her to part with her jewels. When she was not able to remove the ear-studs and gimmicky, the accused himself removed the same and on his demand, she has removed her anklet and gave it to the accused. Since her younger sister Priya, who was aged about 4 years, raised an alarm, the accused has thrown the child into the well. When the younger sister was thrown in the well, P.W.1 had raised an alarm and therefore, the accused has hit her twice with M.Os.3 and 4 stones and also cut her neck with a knife. On hearing her alarm, P.W.2, the father, who came to rescue, has chased the accused to some distance, but the accused could not be caught. When P.W.1 was admitted in Thirukoilur hospital, P.W.5 Dr. Thambidurai has found the following injuries on her:-
“Alleged to have been assaulted and throat was cut with sharp weapon from right to left. The cut was linear and throat was seen. At unable to speak. The incident took place at about 1.30 p.m. at Kottamedu near a field.
1) A deep linear cut was seen on the centre of the neck 10 cm x 1/2 cm. The cut was deep enough that ? fracture
2) A deep cut on the scalp 4 x 1 cm right fracture skull.”
Ex.P.4 is the copy of the accident register, and the treatment particulars of P.W.1 is Ex.P.5. In Ex.P.5, the injury sustained by P.W.1 is stated as follows:-
“An eliptical shaped incised wound seen on the mid-line of the neck below the Groin Cartilage. Tail of the both ends size 1 cm. Breadth in the middle. It extend laterally on either side from the midline. Right side 3 cm. and left side 2 cm. Exposed the sterno clavicular mastoid muscle on the right side. Tracheal rings are seen on the midline.
Under : IV Sedation with local inpirtorth pretracheal fossa sutured. Then the sterno hypoid muscle and sterno-thyroid muscle sutured cervical fossa platyma sutured. Haemosternum sutured.”
The fact that P.W.1 sustained injuries at the time of the occurrence is proved by the evidence of P.W.5 and also Exs.P.4 and P.5.
10. On 29.05.1999, P.W.14 has arrested the accused at the Bus stop of Thirukoilur-Arumbakkam in the presence of P.W.11 Moorthy and one Palani. At that time, the accused has volunteered to give a confession statement, the admissible portion of which is Ex.P.11. In pursuance of the said confession, the accused has taken P.W.14 and P.W.11 and other witness to his house from where he has produced M.O.1 series gold studs and gimmicky and M.O.2 series silver anklet, which were seized under the cover of mahazar Ex.P.12. M.Os.1 and 2 series have been identified by P.W.1 and also P.W.2 as that of belonging to P.W.1, and the value of M.Os.1 and 2 series is Rs. 5,000/-. The learned Counsel appearing for the appellant submits that when the motive for occurrence is to make unlawful gains, the accused could not have kept the jewels for about 4-1/2 months at his house without disposing them either by pledge or sale and therefore, the recovery of M.Os.1 and 2 series should not be believed. It is true that M.Os.1 and 2 series have been recovered after 4-1/2 months from the date of occurrence. The place of occurrence is about seven kilometers from the native place of the accused and the occurrence should have been a sensational case of that area. If the accused attempted to dispose the jewels within the area, he might be easily caught and therefore, he might have had an apprehension that he might be caught, if he attempted to sell the jewels and therefore, he might have planned to dispose the jewels at a later stage in a far off place. The reasons for not disposing the valuable jewels immediately, is best known only to the accused, and the prosecution cannot be expected to give any plausible explanation for not disposal of the properties immediately after the occurrence. Further, no question has been put to P.Ws.1 and 2 to the effect that M.Os.1 and 2 series do not belong to them. M.O.1 series are new. P.W.2 has categorically stated that he purchased the same only on the Bogee day, i.e., two days prior to the occurrence and has also naturally admitted that M.O.1 series are quite new. The failure of the accused to dispose the gold jewels and silver anklet immediately after the occurrence, cannot be a ground to reject the evidence of P.Ws.1 and 2.
11. On the orders of the learned Chief Judicial Magistrate, P.W.4, the Judicial Magistrate, has conducted identification parade, wherein P.W.1 has correctly identified the accused twice at Central Prison, Cuddalore. Proceedings of identification parade are Ex.P.3 series. The identification parade was conducted on 26.06.1999 at Central Prison, Cuddalore and among nine persons, P.W.1 has correctly identified the accused twice. When P.W.4 asked the accused whether he has got any objection regarding the conduct of the identification parade, the accused has stated that on the previous day, he was taken to Thirukoilur Judicial Magistrate’s Court, where the Judicial Magistrate was on leave and he was told that P.W.1 was also brought to the Court. But, when P.W.1 was examined in the trial Court, no questions were put to her whether she was present at Thirukoilur Court one day prior to the date of identification parade and whether the accused was shown to her by the Police. Except the objections told by the accused to P.W.4 the Judicial Magistrate at the time of conducting identification parade, there is no material on record that the accused was ever shown to P.W.1 either by Police or at the Magistrate’s Court before conducting identification parade. Not even a suggestion has been made on the above aspects during trial to P.Ws.1 and 2 who have no motive to unnecessarily implicate the accused.
12. The evidence of P.Ws.1 and 2 are cogent and natural and trustworthy. The evidence of P.W.10 is further corroborated by P.W.5 the Doctor, who treated her and also issued Exs.P.4 and P.5 accident register and treatment particulars respectively. The recovery of M.Os.1 and 2 series after the arrest of accused in pursuance of the confession of the accused is corroborated by the evidence of P.Ws.1 and 2, and we do not find any reason to reject the evidence of P.W.1.
13. Therefore, We do not find any reason to interfere with the judgment of the trial Court convicting the accused for offence under Section 394 I.P.C. read with Section 397 I.P.C, Sections 302 and 307 I.P.C. However, the Sessions Court has passed an order to undergo imprisonment for all the three offences consecutively. We are of the view that ends of justice would be met that if the accused is directed to undergo imprisonment for the above offences concurrently. With this modification, this criminal appeal is dismissed.