IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.866 OF 2007 1.Pitchai Pandi @ Mugesh 2.Krishnakumar @ Kishorekumar .. Appellants Vs. State rep. by Inspector of Police, Thondamuthur Circle M.5 Vadavalli Police Station, Coimbatore District (Crime No.545/05) .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court-II, Coimbatore made in S.C.No.376 of 2006, dated 19.7.2007. For Appellants : Mr.C.D.Johnson For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT
(The judgment of the court was delivered by
M.CHOCKALINGAM, J.)
Challenge is made to the judgment of the Additional District and Sessions Division, Fast Track Court No.2, Coimbatore made in S.C.No.376 of 2006, whereby these appellants stood charged, tried and found guilty as follows:
ACCUSED
CHARGES
FINDINGS
SENTENCE
A-1, A-2
S.449 IPC
Guilty
10 years R.I. each and to pay a fine of Rs.1000/-, in default to undergo 2 years S.I. each
A-1, A-2
S.392 IPC
Guilty
No separate sentence
A-1
S.394 IPC
Guilty
No separate sentence
A-1
S.397 IPC
Guilty
10 years R.I. and to pay a fine of Rs.1000/-, in default to undergo 2 years S.I.
A-2
S.397 IPC
Guilty
10 years R.I. and to pay a fine of Rs.1000/-, in default to undergo 2 years S.I.
A-2
S.302 IPC
Guilty
Life imprisonment and to pay a fine of Rs.2000/-, in default to undergo 4 years S.I.
A-1
S.302 r/w S.34 IPC
Guilty
-do-
The sentences were ordered to run concurrently.
2.The short facts necessary for the disposal of this appeal can be stated thus:
a)P.W.1 is the daughter-in-law of the deceased Savithri. P.W.2 is the son of P.W.1. The husband of P.W.1 was employed as Engineer in Mumbai. P.W.1 was employed in a private School. P.W.2 is doing his education. Usually, all left the house at about 9.00 a.m., leaving Savithri alone in the house. The said Savithri used to wear all jewels. When P.W.1 went to School, she informed to Savithri to close the door.
b)As usual, on 15.10.2005, P.W.1 left for school and P.W.2 also went to School. Thereafter, they came at 5.45 p.m. Unusually, the door was just closed without being locked. P.W.1 opened the door and went inside and found Savithri in a pool of blood. A chain and also one diamond ear stud, out of two, were removed and the telephone wire was also found disconnected. P.W.1 informed to P.W.14. Immediately, P.W.14 informed to police through his phone.
c)P.W.21, the Inspector of Police, has arrived to the place of occurrence. P.W.1 gave Ex.P.1, the report at about 8.00 p.m., on the strength of which, a case came to be registered in Crime No.545 of 2005 under Sections 448, 397 and 302 IPC. Ex.P.29, the F.I.R. was despatched to the Court. P.W.21 took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. Finger print experts were called for. P.W.21 prepared Ex.P.18, the observation mahazar and Ex.P.30, the rough sketch. He recorded the statement of the witnesses. He has also conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.31, the inquest report. M.O.3, one diamond stud was also recovered under a cover of mahazar. The dead body was sent to the hospital for the purpose of autopsy.
d)P.W.19, the Doctor attached to the Government Medical College Hospital, Coimbatore, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.25, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of asphyxia due to compression of air passages associated with injuries.
e)On 5.3.2006, P.W.20, the Inspector of Police, Aruppukkottai Town Police station, arrested the first accused in a case in Crime No.98 of 2006 under Section 387 IPC. The first accused came forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.26. Pursuant to the confessional statement, A-1 identified one Siddiq, from whom M.O.2, one pair gold bangle was recovered and he also identified one Chitra, from whom, M.O.1, gold chain, weighing 5 sovereigns, was recovered in the presence of the witnesses. They were recovered under Exs.P.27 and P.28 mahazars. On information, P.W.21, the Investigator of the present case, took the custody of A-1 on 13.3.2006 from the Court. On 17.3.2006, A-1 gave confessional statement in the presence of the witnesses and the same was recorded. A-1 also produced M.O.9, lungi, which was recovered under a cover of mahazar. P.W.21 examined P.Ws.3,6,7,8 and 9 and their statements have been recorded. A-1 was sent for judicial remand.
f)On 10.3.2006, P.W.10 and one Chinnathangam were examined and their statements were recorded. On 22.3.2006, P.W.18, the Inspector of Police of Erode Surampatti Police Station, arrested A-2 in respect of Crime No.132/2006 under Section 387 IPC. A-2 came forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.23. Pursuant to the same, he was produced before the court.
g)On 4.4.2006, an identification parade was conducted before the concerned Judicial Magistrate in respect of A-1. P.W.10 was able to identify him properly and the said identification parade proceedings was marked as Ex.P.6. Equally, on 05.4.2006, an identification parade was conducted by the concerned Judicial Magistrate, in which P.W.10 was able to identify A-2. The identification parade proceedings was marked as Ex.P.4. On 3.4.2006, statements of P.Ws.3,6,7,8,9,10 and 11 under Section 164 Cr.P.C. were recorded.
h)On 7.4.2006, the second accused was taken to police custody and on 10.4.2006, he came forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.12. A-2 also identified one Siddiq, from whom M.O.8, one diamond ear stud was recovered under a cover of mahazar. Then, A-2 was sent for judicial remand. The finger prints taken from A-1 were compared with the finger prints taken from the place of occurrence and they were found tallying. Ex.P.21 is the finger print report. Then, all other witnesses were examined and their statements were recorded. On completion of the investigation, the Investigating Officer has filed the final report.
3.The case was committed to the court of sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 21 witnesses and also relied on 31 exhibits and 9 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial court, after hearing the learned counsel on either side, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty as per the charges and awarded punishments as referred to above, which is the subject matter of challenge before this court.
4.Advancing arguments on behalf of the appellants, the learned counsel has made the following submissions:
a)The prosecution had no direct evidence to offer and it has rested its case on circumstantial evidence. The prosecution has miserably failed either to place or prove necessary circumstances, pointing to the guilt or complicity of the appellants. According to the prosecution, the witnesses were P.Ws.18,20 and 21 and also P.W.10. P.Ws.18 and 20 were the police officers of Erode Surampatti Police Station and Aruppukkottai Town Police Station respectively and they registered two independent cases against A-2 and A-1 respectively. According to the prosecution, A-1 and A-2 gave confessional statements to those police officers, pursuant to which M.Os belonged to the deceased were recovered. According to the prosecution, the M.Os were recovered from one Siddiq and Chitra, but those two were not examined and thus, the witnesses for the recovery were not examined. The police officers have given evidence that they recovered the same and produced before the court.
b)Before the trial court, the prosecution much relied on and the trial court has also accepted is the conduct of the identification parade, in which P.W.10 has identified both A-1 and A-2. In the instant case, the evidence of P.W.10 should have been rejected. P.W.10 has categorically admitted that on the date of occurrence, he was examined by the police and he did not suspect anybody. Hence it would be quite clear that identifying A-1 and A-2 at the time of identification parade before the Judicial Magistrate, was nothing, but it was actually a planned one and the accused persons were actually shown to P.W.10 previously. Immediately after the identification parade was over, the accused complained to the Judicial Magistrate that when those accused were in the police custody, they were actually shown to P.W.10 and the other. Further, the other witness Chinnathangam was not examined.
c)In the instant case, even from the evidence of the Investigating Officer, it would be quite clear that P.Ws.6, 7 and one Nagaraj were actually suspected and they were taken to police custody and were also enquired and that the investigation at the earliest was in that direction. Section 164 Cr.P.C. statements of those witnesses were actually recorded. All would go to show that A-1 and A-2, who had nothing to do with the offence, have been falsely roped in and the registration of cases by the two police officers, namely Erode Surampatti Police Station and Aruppukkottai Town Police Station against A-2 and A-1 respectively and their confessional statements were all nothing but false and they were created for the purpose of the case and under these circumstances, the prosecution has not proved the nexus between the accused/appellants and the crime and hence they are entitled for acquittal in the hands of this court.
5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
6.It is not in controversy that in an incident that took place in the morning hours between 9.00 a.m. and 10.00 a.m. on 15.10.2005, one Savithri, the mother-in-law of P.W.1 was done to death and her jewels, namely M.O.8, one diamond ear stud, M.O.1, chain and M.O.2, one pair of gold bangle were also stolen. Following the inquest made by P.W.21, the dead body was subjected to post-mortem by P.W.19, the Doctor, who has categorically opined as a witness before the court and also through his Ex.P.25, the post-mortem certificate that the deceased would appear to have died of asphyxia due to compression of air passages associated with injuries. The facts that the deceased died out of homicidal violence and her jewels were robbed and it is a murder for gain were never disputed by the appellants before the trial court and hence it has got to be recorded so.
7.In order to substantiate the fact that it is a murder for gain and the accused have murdered the deceased Savithri and also robbed the jewels, the prosecution had no direct evidence to offer, but it has rested its case on circumstantial evidence. In the instant case, the prosecution, in order to prove the guilt of the accused, has mainly relied upon three pieces of circumstances. Firstly, the evidence of P.W.10. According to him, at or about the time of occurrence, he saw both the accused coming out of the house of P.W.1. P.W.10 was the contractor, who was actually constructing a house situated just 200 feet away from the house of P.W.1. At the time of occurrence, he found A-1 and A-2 coming out of the house of P.W.1 and he has also given statement to the police and the same has been recorded. After the arrest of A-1 and A-2, the identification parade had taken place. A-1 was arrested in the instant case on 13.3.2006 and the identification parade was conducted on 4.4.2006 within a reasonable time. P.W.10 was able to identify him before the Judicial Magistrate and the identification parade proceedings was marked as Ex.P.6. From the evidence of Judicial Magistrate, it would be quite clear that P.W.10 was able to identify A-1 properly at the time of identification parade. Equally, A-2 was arrested by P.W.21 in the instant case on 23.3.2006 and on 5.4.2006, A-2 was identified by P.W.10 before the Judicial Magistrate in an identification parade proceedings and the Judicial Magistrate has given evidence that P.W.10 has identified A-2 properly. Hence the evidence of P.W.10 that he saw both the accused coming out of the house of P.W.1 on the date of occurrence, coupled with the fact that he was able to identify them in the identification parade, which has taken place within a reasonable time from the time of arrest, in the considered opinion of the court is the strong piece of evidence against the appellants herein.
8.The contention put forth by the learned counsel for the appellant is that on 15.10.2005 itself, P.W.10 was examined, but he did not entertain any suspicion about the assailants and under these circumstances, subsequent identification of the accused in the identification parade is of no consequences. This contention put forth by the learned counsel for the appellants though attractive at the first instance, it does not stand the scrutiny and it cannot be accepted for the simple reason that on 15.10.2005 when number of witnesses were examined, one was P.W.10. According to P.W.10, at that time, he did not entertain any suspicion and only after he came to know that the jewels were robbed and the accused have been arrested, he has given statement that he saw both the accused at or about the time of occurrence and he has also identified them in the identification parade. It would be quite clear that P.W.10 was the stranger and he was neither interested in P.W.1 nor inimical to the accused, but has come forward to give such a statement before the police officer, identified them in the identification parade and has given evidence before the court of law. Further, the only suggestion that was put to him that he was involved in number of cases was denied by him and also by the Investigating Officer. Hence this court is unable to see any reason to suspect his evidence.
9.The added circumstance is the recovery of M.Os. According to the prosecution, the first accused was arrested in connection with a case registered by Aruppukkottai Town Police Station and it was P.W.20 who arrested him. While he gave confessional statement, he has also given statement in respect of the present crime also and it was he who took P.W.20 and identified Siddiq and Chitra, from whom the M.Os were recovered. On information, P.W.21 took him to custody and A-1 has given confessional statement and further A-1 produced lungi which was worn by him at the time of occurrence. It is not necessary that the material objects should be recovered in order to prove it under Section 27 of the Evidence Act. Even if any material facts or information is brought to the notice under Section 27 of the Act and it is also recorded, it could be acted upon. In the instant case, the confessional statement, which was given by him to P.W.21, the Investigator, was the relevant fact and actually, it stood corroborated.
10.So far as A-2 was concerned, he was actually involved in a case registered by Erode Surampatti Police Station and on arrest, he came forward to give confessional statement. Subsequently, P.W.21 took him to custody and at the time of interrogation, he came forward to give confessional statement and following the same, jewels have been recovered from one Siddiq. It is true, the two witnesses, namely Siddiq and Chitra, have not been examined. The court is of the considered opinion that the non examination of those persons, from whom jewels have been recovered, would not in any way affect the truth of the prosecution case, since in the instant case, the other materials available are pointing to the complicity of the assailants, namely the appellants before this court.
11.The contention put forth by the learned counsel for the appellants is that in the instant case, though two crimes have been registered, one by Aruppukkotai Town Police Station against A-1 and the other by Erode Surampatti Police Station against A-2, they are all only cooked up affairs and only for the purpose of the case, they have been created. This contention will not stand even for a moment. If they were actually arrested in the instant case, there is no need for the police to come on circuitous root, but they were actually involved in all other cases. Further, the said contention cannot be accepted at all, because if they were arrested in the instant case, it was an easy affair for the police to make all other proceedings and the Investigator need not take them to custody from the other police, who registered the case in respect of the other matters.
12.Apart from that, finger prints were taken from the place of occurrence and P.W.15, the Finger Print Expert has given a report stating that the finger prints taken from the materials available at the house of the deceased were tallying with A-1. All the above would clearly indicate that A-1 and A-2 made criminal trespass in the house of the deceased and actually murdered her for gain. Hence the lower court was perfectly correct in finding them guilty as per the charges and awarded punishments as referred to above, which in the opinion of the court is in no way unreasonable. Accordingly, the judgment of the trial court is sustained. This criminal appeal is dismissed.
vvk
To
1.The Additional District
and Sessions Judge,
Fast Track Court No.2,
Coimbatore.
2.The Inspector of Police,
Thondamuthur Circle M.5 Vadavalli
Police Station,
Coimbatore District.
3.The Additional Public Prosecutor,
High Court,
Madras