IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 03/10/2002
CORAM
THE HONOURABLE MR. JUSTICE S. JAGADEESAN
AND
THE HON'BLE MR.JUSTICE MALAI.SUBRAMANIAN
CRIMINAL APPEAL NO.398 of 1997
1. Ramesh (A.1)
2. R. Srinivasan @ Seenu (A.2)
3. Y. Narendran (A.3)
4. Sathish Babu (A.4) .... Appellants
-Vs-
State of Tamil Nadu rep. by
Inspector of Police (Crimes)
G-3 Kilpauk Police Station
Chennai-10 ..... Respondent
Appeal filed under Sec.397 Cr.P.C against the conviction and sentence passed
in S.C.No.318/96 dated 2.4.1997 on the file of Principal Sessions Judge,
Madras.
For 1st appellants : Mr.K. Asokan
Senior Counsel for
Mr.P. Kumaresan
For 2 to 4 appellants : Mr.V. Gopinath
Senior Counsel for
M/s M. Rajasekaran and
Mr.K. Selvarangan
For respondent : Mr.E. Raja
Addl. Public Prosecutor
:JUDGMENT
MALAI.SUBRAMANIAN,J
The appellants 4 in number are accused 1 to 4 in S.C.No.318/96 on the
file of Principal Sessions Judge, Chennai. They were convicted to undergo
imprisonment for life for offence punishable under Sec.302 read with 34 IPC;
to undergo 7 years R.I for offence punishable under Sec.397 read with 34 IPC;
to undergo 7 years R.I and to pay a fine of Rs.1,000/-, in default to suffer
R.I for 3 months for the offence under Sec.449 IPC and to undergo 7 years R.I
and to pay a fine of Rs.1,0 00/-, in default to suffer R.I for 3 months for
offence punishable under Sec.201 read with 34 IPC, on the allegation that on
10.5.95 at about 3.00 or 3.30 p.m they trespassed into the house of the
deceased Suseela Ranganathan with intent to commit robbery and with intent to
commit her murder and after causing her death, took away 295.955 grams of gold
jewels, 13 silver coins, 2 ladies watches and 3 key bunches and thereafter
packed the dead body of Suseela Ranganathan and transported the same in a Fiat
Car bearing Registration No:TTU – 4117 to the railway track in between Chetpet
and Nungambakkan and placed the same on the railway track so as to make it
appear that it is a run over case. The brief facts necessary to dispose of
the appeal are as follows:
2. The deceased Suseela Ranganathan was a resident of No.125, R.B.I
Quarters, Kilpauk and she was working as Grade.I Officer in Reserve Bank of
India along with P.W.3. On 10.5.95 she went to the Bank and returned to the
quarters and thereafter she was not seen alive. P.W.1– K.A. Ramasamy,
Sambandhi (rk;ge;jp) of the deceased went to the quarters of the deceased at
about 6.00 a.m on 15.5.95 to ascertain whether she was in the quarters because
P.W.2 – her sister from Trichy complained to him that there was no response
when they rang up to the deceased. He found the quarters locked. He went to
the Office and enquired and found that she was absent after 10.5.95. He then
passed on this information to Trichy.
3. On 17.5.95 he went to G-3 Police Station and gave a report Ex.P.1
to P.W.41 – Sub Inspector of Police, who registered a case in Cr. No.829/95
under the caption “woman missing”. Ex.P.43 is the printed First Information
Report. P.W.41 proceeded to the quarters of the deceased along with P.W.1 and
found the quarters locked. After ascertaining that a mutilated body of a
female was kept in the mortuary of Government General Hospital, Chennai, both
of them went there, where he identified the body of Suseela Ranganathan. No
jewels were found on the body.
4. In the meantime, P.W.6, who is the motorman (Driver), who took the
electric train at 10.5.95 at 11.55 p.m from Beach Station, while reaching
Nungambakkam, saw some obstruction in the railway track 100 feet away and
though he applied break, he could not control the train and the same ran over
on the body of a lady and stopped 150 meters away. He then after stopping the
train, came with a torch light along with the Guard and found a lady lying
dead. After clearing the body, he took the train. The Station Master
presented a complaint to Egmore Railway Police and the same was registered in
Cr.No.456/95 under Sec.174 Cr.P.C at 7.00 a.m on 11.5.95 by P.W.24 – Woman
Head Constable of Egmore Railway police Station. The First Information Report
is Ex.P.15. P.W.24 went to the place, where the body was lying, prepared
Ex.P.10 – observation mahazar and drew rough sketch Ex.P.16. She also caused
the dead body to be photographed. She then held inquest on the dead body and
prepared Ex.P.17 Inquest report. Thereafter, the body was sent to Government
General Hospital for autopsy with a requisition Ex.P.21.
5. P.W.30, Dr.C. Manohar, Assistant Professor, Forensic Medicines,
Madras Medical College, Chennai conducted post- mortem on the body of Suseela
Ranganathan, aged about 57 years on 18.5.95 at about 2.45 p. m and found the
following injuries:
“1. Defacing, crushing injury involving head, face and neck and exposing the
base of the cranial cavity; the scalp was torn irregularly with multiple
comminuted fractures of the vault of the skull of varying sizes with irregular
displacement bruising seen in some segments of the ectocranium and some areas
of the sub scalpal region; the base of the skull with the facial bones was
comminuted into multiple segments with irregular displacement and embedded
into and distorted soft tissue of face; small quantity of liquified brain
matter seen in the cranial cavity; the median structures of the front of the
neck were not found. The cervical vertebra was found disrupted with
communition and found embedded in the soft tissue of the back of the neck.
2) A lacerated wound with marginal bruising with abrasion of 16 x 10 cm over
right shoulder which was partially amputated from right shoulder joint
exposing the joint cavity with communition of upper end of shaft of the
humerus with bruising around the soft tissue and on the surface of the
fragments.
3) Partially amputation of left shoulder joint which is partially attached
with shoulder joint through a tag of skin; the margin are bruised; fracture of
shaft of left humerus into many pieces with laceration of surrounding soft
tissue.
4) A partial avulsion of right hip joint with extruding of right hip bone
through the lateral border of the right buttock and thigh with disarticulation
of right sacr (torn) joint and pubic symphys is with fracture of public bone;
the (torn) the skin were abraded with isolated bruising (torn) …..
5) Lower quadrant of both gluteal region and perineal region lacerated 10 x 16
x 8 cm.
6) Reddish abrasions: right supra clavicular region 18 x 10 cm; on left side
of chest on mid clavicular line 12 x 12cm; on left lower costal margin 6 x 3
cm; on right hypochondrium 6 x 3 cm.
7) Fracture of 2 to 5 ribs at mid clavicular line on right side with
intercostal bruising.
8) Fracture of 3 to 7 ribs at mid clavicular line on left side with
intercostal bruising.
9)Fracture of middle third of both tibia and fibula on right side: Deeper
muscles are exposed out; Margins are bruised.
10) Fracture middle third of left tibia and fibula without bruising in the
surrounding soft tissues.
11) Fracture of lower third of femur without bruising in the surrounding soft
tissues.
HERT: Cardiomegaly. Hypertrophy of all the chambers of the heart coronaries
patent.
LUNGS: Early decomposition
Stomach: Empty Mucosa-nil abnormal
BLADDER:Empty uterus :Absent
All other internal organs were found early decomposition changes”.
He issued Ex.P.22 Post-Mortem Certificate with an opinion that the deceased
died of multiple crush injuries.
6. Meanwhile, P.W.14, who was working as a Plumber in the Railways
and residing in Railway Quarters at Chetpet noticed a White Fiat Car-M.O.28
stationed near the quarters from 10.5.95, went to Chetpet Police Station on
16.5.95 and gave a report Ex.P.5. P.W.28 – Sub Inspector of Police, Chetpet
Police Station registered a case in Cr.No.648/9 5, prepared Ex.P.18 printed
First Information Report, went to the place and found the Car. He also
prepared Ex.P.19 – Observation Mahazar and seized the Car under Ex.P.20
mahazar. One pillow in the car was also seized under Ex.P.2 mahazar. M.O.37
Beer Bottle found inside the car was seized under Form 95. P.W.29 Inspector
of Police, Chetpet took up investigation in the case, ascertained the owner of
the Fiat Car and questioned P.W.19, the father of the 1st appellant and then
forwarded the car to the Court, since he came to know that a case was
registered in G.3 Police Station.
7. P.W.2 – sister of the deceased came from Trichy and identified the
body. P.W.3, the colleague of the deceased also identified the body. P.W.4,
a doctor, who is a friend of the deceased and P.W.5, the caretaker of the
Reserve Bank of India Staff Quarters also identified the body of the deceased.
P.W.41 – Sub Inspector of Police after ensuring that the dead body found in
the mortuary of the Government General Hospital was that of the deceased
Suseela Ranganathan, went to Egmore and questioned the Railway Police and
summoned P.W.31 – Finger Print Expert, who was taken to the quarters of the
deceased. P.W.31 lifted three finger prints from an iron safe and gave
markings J.1, J.2 and J.3 to them. They were also photographed. M.O.38 are
photographs. Finger prints were compared with the prints taken from the
fingers of the deceased. The left thumb impression of A.2 tallied with one
impression. P.W.41 ascertained that after 10.5.95 the deceased did not go for
work. On 19.5.95 after coming to know from Chetpet Police that the owner of
the car is the father of the 1st accused, went to the house of the 1st accused
and on seeing P.W.41, the 1st accused took to his heels. He was chased and
apprehended and when questioned, he gave a statement and then produced M.O.1
series – a pair of gold bangles and the same were seized under Ex.P.12
mahazar. The 1st accused was arrested, brought to the police station and
P.W.41 gave a Special Report Ex.P.44.
8. P.W.42 took up investigation. He then examined P.Ws.22 and 31 and
recorded their statements. On the strength of the statement of the 1st
accused, he altered the crime to one under Sec.120-B, 302 and 38 0 IPC. He
prepared Express Report Ex.P.45 and sent the same to the Court. A.1 took
P.W.42 and his party and pointed out 2nd, 3rd and 4th accused in Kasi Chetty
Street and they were arrested and interrogated. The 3rd accused Narendran
gave a statement in the presence of P.W.35, the admissible portion of which is
Ex.P.46, in which he had stated that he had left a ring, a gold chain, a pair
of diamond ear studs and a key bunch with his friend P.W.20 – Baskar and a
pair of bracelets (f’;fzk;) were left with another friend Mr. Lakshmana Rao –
P.W.11 . The 4th accused gave a statement, the admissible portion of which is
Ex.P.47. He produced a pair of diamond studs M.O.21 and the same were seized
under Ex.P.30 mahazar. Then the statement of the 2nd accused was recorded,
the admissible portion is Ex.P.48, in which he stated that he had kept the
jewels in a bag at No.87, R.B.I quarters belonging to P.W.10- Subramaniam.
9. P.W.42 and the witnesses went to the house of P.W.20 – Baskar and
recovered M.Os.16,18,20 jewels and 3 key bunches M.O.44 and the same were
seized under Ex.P.11 mahazar. P.W.42 examined P.W.20 Baskar and recorded his
statement. Then he returned to the police station. On 20.5.95 at about 9.30
he went to the quarters of the deceased and prepared Ex.P.49 rough sketch. At
about 12.00 p.m, he took the deceased to the place, where the dead body was
found and seized a small rope. At about 1.30 p.m, pursuant to the statement
of the 2nd accused, P.W.42 went to No.87, R.B.I Quarters and questioned P.W.10
– Subramaniam, who handed over a bag which contained M.Os.1 to 19 jewels and
the watches and the same were seized under Ex.P.9 mahazar. P.W.10 was also
questioned by P.W.42 and a statement was recorded from him. Suspecting the
appellants to be old offenders, their finger prints were taken and sent to the
Finger Print Bureau. P.W.31 compared two other finger prints lifted in the
quarters of the deceased with the finger prints of the deceased. He found the
finger print marked J.3 tallying with the finger print of the 2nd accused
Srinivasan. He gave a report Ex.P.25.
10. P.W.42 searched for P.Ws.37 and 38 (approvers), but could not
apprehend them. On 28.5.95 he examined P.W.31 and some other witnesses. On
29.5.95 at about 11.00 p.m, he arrested P.Ws.37 and 38 and questioned them.
They wanted to give statement before the Court and therefore, they were
produced before the Court for recording their statements. A requisition was
also given to the Chief Metropolitan Magistrate, Madras to record their
statements under Sec.164 Cr.P.C. The Chief Metropolitan Magistrate gave a
direction through Ex.P.36 to P.W.39, to IV Metropolitan Magistrate, Chennai to
record the statement of P.Ws.37 and 38. Accordingly, he recorded the same.
Thereafter, pardon was tendered to them.
11. P.W.42 examined the witnesses on various dates viz., 16.6.95, 24
.6.95, 25.6.95, 26.6.95 and 7.7.95. He also examined some witnesses on
27.7.95. On 1.8.95 he examined P.Ws.24 and 25 and recorded their statements.
He seized blood stained saree of the deceased as produced by the Railway
Police, who seized the same in Cr.No.456/95 and the saree was sent to the
Court. He also gave a requisition to send the blood stained pillow and other
M.Os for Chemical analysis. On 8.8.95 he went and examined Dr.C. Manokar –
P.W.30 and recorded his statement. On 10.8.95 he examined P.W.21 and others.
After completing investigation, he filed final report against all the four
accused punishable under Secs.302, 451, 409, 397 and 201 read with 34 IPC. On
31.10.95 he produced the jewels before the Court. On 1.11.95 he produced the
key bunches also before the Court. Since P.Ws.37 and 38 who are originally
arrayed as accused Nos.5 and 6, turned as approvers, an amended Charge Sheet
was filed on 11.2.96 against these four accused.
12. When the accused were questioned under Sec.313 Cr.P.C, their plea
was one of denial. No witnesses were examined on their side.
13. There is no dispute that Suseela Ranganathan, the deceased in
this case was working as Grade-I Officer in Reserve Bank of India and was
staying in No,.125, RBI Quarters, Kilpauk. There is also no dispute that the
deceased was not seen alive after 10.5.1995 since according to P.W.3, a
co-worker, the deceased was last seen only on 10.5.1995 . After the body of
the deceased was sent to mortuary in General Hospital, P.W.1 – “Sambandhi” of
the deceased, P.W.2 – elder sister of the deceased,P.W.3 a co-worker, P.W.4 a
family friend of the deceased and P.W.5 a resident of RBI Quarters, identified
the dead body as that of Suseela Ranganathan. Insofar as this identity of the
body, a contention was made by the learned senior counsel Mr.K. Asokan,
appearing for the 1st appellant that Ex.P.15 the complaint lodged with Railway
Police, Egmore by the Guard who was in charge of the electric train which ran
over the body, reads that a female aged about 25 years who suddenly trespassed
was knocked down and killed, whereas the deceased was said to have been aged
about 57 years as per Ex.P.22 Post Mortem Certificate. There is no evidence
that besides the deceased there was another body found on the railway track on
11.5.95. The only question is whether the age of woman, who died, is 25 years
as stated in Ex.P.15 or 57 years as found in the post mortem certificate
Ex.P.22?
14. Insofar as this aspect is concerned, the relatives and friends of
the deceased viz., P.Ws.1 to 5 have identified the body as that of Suseela
Ranganathan and their case is that she was aged about 57 years. On the
contrary though in Ex.P.15 a female aged 25 years was said to have been
knocked down and killed by train, the person, who lodged the complaint, on
which Ex.P.15 was registered has not been examined in Court. Ex.P.15 reveals
that it was signed by one N. Vijayashankar and he has not been examined in
Court. P.W.6 – the driver of the train alone was examined to prove the fact
that the train ran over a female. He did not speak about the age of the
woman. There is absolutely no evidence to indicate as to who informed the
author of Ex.P.1 5 regarding the age of the dead body. In view of this
discussion, we are of the view that there is no dispute with regard to the age
of the deceased and there is no dispute with regard to the identity of the
deceased and therefore, we hold that the prosecution has established that the
body found on the track was only that of Suseela Ranganathan, aged about 57
years.
15. Insofar as the cause of death is concerned, the prosecution case
is that all the four appellants caused the death of Suseela Ranganathan by
strangulating her and thereafter removed the body from the quarters to the
Railway track and then placed the same over the railway track so as to appear
that the death was caused due to run over by the train. The Doctor – P.W.30
who did autopsy on the body of Susseela Ranganathan found amputations,
lacerations, fractures and crush injuries and therefore, he gave an opinion
that the deceased died of multiple crush injuries. When questioned by the
defence in the cross examination, he replied that there was no occasion for
him to find out whether death could have been caused by asphyxia. Though it
is the duty of the prosecution to have elicited from the doctor that death
could have been caused due to asphyxia , the defence lent its hand by
questioning the doctor as to whether the death could have been caused due to
asphyxia, probably anticipating a negative answer; but the doctor replied that
there was no occasion to look into that aspect, most probably because the body
was mutilated, crushed and there were so many fractures on the body.
Naturally when one looks at the body which was run over by the train with so
much of fractures, broken limbs, amputations and crush injuries, immediate
opinion that could be formed is that death was due to crush injuries. That is
how the doctor also gave his opinion. Though cause of death usually is
established by medical evidence, in cases of this nature, the Court has to
take into consideration the surrounding circumstances also to find out the
real cause of death. What was the necessity that compelled the deceased to go
to the railway track and jump before the running train if it is the case of
defence that the deceased could have jumped on the track in front of a running
train? Secondly there is the evidence of P. W.7 – the watchman of Reserve
Bank quarters to prove that at about 11.30 p.m on 10.5.95 a white colour fiat
car went out side the gate and the 3rd accused was driving the car while 1st,
2nd and 4th accused were seated inside along with two other persons. The 3rd
point is that the said white colour fiat car was found stationed near the
railway colony by the side of the house of one Harikrishnan as per Ex.P.20,
rough sketch drawn by P.W.28 – the Sub Inspector of Police, Chetpet Police
Station while investigating into a complaint lodged by P.W.14, the first
information report being Ex.P.18. There is no explanation from any of the
accused as to how the said car belonging to the father of the 1st accused came
to be seen near the railway track by the side of the railway quarters. Taking
into consideration all these aspects and also in view of the fact that the
doctor who did autopsy could not find out whether the death was due to
asphyxia because of the mutilated nature of the body, we hold that the
deceased Suseela Ranganathan died on account of homicidal violence. Corpus
delicti can be proved by the production of the dead body or even by the
circumstances proved by the prosecution. Though in this case, the body has
been produced, still the cause of death may be due to asphyxia also, since
according to the doctor, he had no occasion to probe into that fact. If the
doctor would have answered that the death could not have been by asphyxia, the
matter is different. The answer was very carefully made whereby he said that
there was no occasion to look into that aspect at all. The prosecution ought
to have probed further to elicit from the doctor certain answers, but any how
even assuming that the deceased was crushed to death by train according to
P.W.30, still the proved circumstances in this case about the involvement of
the accused 1 to 4 clearly indicate that the body of the deceased should have
been placed only by them on the railway track after murdering her.
16. Though the prosecution case as per the 2nd charge is that the 1
st and 3rd accused strangled the deceased with the help of a rope while 2nd
and 4th accused caught hold of her, in the absence of any eye witness account,
the specific overt acts of each accused should not have been mentioned in the
charge, but the charge that all the four accused committed murder of the
deceased and therefore, liable to be convicted under Sec.302 read with 34 IPC
cannot be assailed on the ground that the specific overt acts were attributed
to each of the accused in the charge. This case rests purely on
circumstantial evidence. In the absence of any eye witness to speak about the
overt act of each accused, the Courts while framing charges but are tempted to
look into the statements of the accused recorded by the police or recorded
under Sec.164 Cr.P.C. to attribute the overt acts of each accused. If 161
Cr.P.C statement of an accused recorded by the Judicial Magistrate as a
confession is found on record, that piece of evidence being admissible can be
looked into for that purpose. But in this case none of the accused 1 to 4
have given any statements much less confession statements to the Judicial
Magistrates. Therefore, the Court ought not to have framed the 2nd charge by
distributing the overt acts to each of the four accused merely on the
statement recorded from them under Sec.161 Cr.P.C. Because of these lapses on
the part of investigating agencies while filing final reports and on the part
of the Courts while framing charges, the real accused shall not be allowed to
escape resulting in failure of justice.
17.The learned senior Counsel appearing for the 1st appellant
vehemently argued that as per Ex.P.15, the first information report lodged by
the Station Master, a female aged about 25 years suddenly trespassed, knocked
down and killed and therefore, though there is difference of age, there is
every likelihood of the deceased jumping in front of the approaching train.
As we have already stated, the person who lodged the first information which
led to the registration of Ex.P.15 was not produced before the Court. As a
matter of fact, it was P.W.6 – Motorman who alone had seen the body of the
deceased lying on the track. He had only stated that some 100 meter away he
was able to notice some obstructions on the railway track and immediately he
applied the break. His further evidence is that the train did not stop all of
a sudden, but it could stop only after running over the body at a distance of
150 meters. This evidence of P.W.6 only indicates that he was able to see
obstructions 100 meters away when he was driving the train. Though he made an
attempt, he could not stop the train before crushing the body. It is not his
evidence that he saw somebody jumping into the track in front of the
approaching train. He is the witness competent to speak about the fact. When
he has only stated that he saw some obstructions on the track, later found to
be a body of a female he could have informed the authorities concerned only
like that. Who ever gave the report, which resulted in lodging Ex.P.15 First
Information Report, would have given the information only after it was passed
on to them. P.W.6 in his cross examination categorically denied the
suggestion that he informed the Guard that a 35 year old lady jumped in front
of the train. The First information Ex.P.15 appears to be a twisted
information. Therefore, that cannot be used as a piece of evidence to
contradict the statement of P.W.6 especially when the first informant was not
examined in Court. If this document is beneficial to the defence, the defence
could have cited the informant as the witness on their side. That has also
not been done in this case. Therefore, we have no hesitation to hold that it
is not a case where any lady jumped in front of the train, but it is only a
case where the body of the deceased was placed on the railway track to screen
the act of murder.
18. The prosecution let in the evidence of P.W.7 the Watchman of
Reserve Bank Quarters where the deceased was residing to prove that he saw
them leaving the quarters in a Fiat Car driven by the 3rd accused at about
11.30 p.m on 10.5.95. He has also identified all the four accused stating
that he knew them already. According to P.W.10, a clerk in the Reserve Bank
of India, the appellants 2,3 and 4 are also the residents of R.B.I Quarters
only. That is why P.W.7 was able to identify them clearly. Nothing has been
elicited in his cross examination to compel the Court to reject his evidence.
Therefore, we hold that the prosecution proved the fact that at about 11.30
p.m the 3rd accused drove the fiat car from the quarters and appellants 1,2
and 4 were seated inside.
19. The second piece of evidence is that the white Fiat Car was
spotted by P.W.14 nearby the railway quarters and he lodged Ex.P.5 complaint
at Chetpet Police Station. Pursuant to that complaint, P.W.28 registered a
case, prepared Ex.P.18 first information report, observed the same, prepared
Ex.P.19 – observaiton mahazar and also drew a rough sketch Ex.P.20. Ex.P.19
reveals that the car was stationed at a distance of 65 feet from the railway
track and the sketch Ex.P.20 also shows the railway track. According to
P.W.6, the body was located on the track in between Chetpet and Nungambakkam.
He would further state that he could see the body immediately after he crossed
the Chetpet bridge. Ex.P.16 rough sketch also reveals that the dead body was
found some 200 feet away from the Chetpet over bridge. We can take judicial
notice of the situation of the over bridge from where there is a path leading
to Chetpet Railway Statio n which is nearby the bridge. After crossing the
bridge, some 200 feet away, the body was seen. P.W.14, the Railway Plumber,
who is residing in Chetpet Railway Quarters had noticed the Fiat Car M.O.28
stationed nearby the quarters. There is no dispute that M.O.28 belongs to the
father of the 1st accused. Though P.W.19 the father of the 1st accused claims
to have lodged a complaint with Saidapet Police on 13.5.95 regarding the theft
of his Car, he failed to produce the copy of such a complaint. He has also
stated that on 18.5.95 having come to know that his car was available at
Chetpet Police Station, he went there. Therefore, in the absence of
production of the report, said to have been lodged by P. W.19, we are
constrained to hold that the evidence of P.W.19 that he lodged a report of
theft of Car with Saidapet Police is nothing but a defence made by him to
relieve his son from the offence. In view of the proximity of the places
where the dead body on the track was found and where the Car, M.O.28 was
stationed, we can safely infer that M.O.28 car should have been used for
transporting the deceased. Though we have already said that in the absence of
eye witness account the prosecution cannot fix the place, time and manner of
causing death of the deceased, merely because we find fault with the
prosecution for framing an improper charge, the entire case need not be thrown
out, if available evidence is sufficient to hold the accused guilty. Thus,
according to us, the evidence of P.W.6 that all the four accused travelled in
the Fiat Car obtains corroboration from the fact that the car of A.1’s father
was found nearby the railway track in close proximity with the place where the
dead body of the deceased was found. Therefore, this is yet another
circumstances incriminatory in nature.
20. Though P.Ws.37 and 38, who were arrayed as accused along with
these appellants, turned approvers and though P.W.37 turned hostile, P.W.38
had spoken to the events that took place. The evidence of P.W.38 being in the
nature of the statement of the accused, though it cannot be made a basis for
conviction, it can be used to lend corroboration to the evidence already on
record. P.W.38 would state that all the four accused met him at about 8.30
p.m on 10.5.95, while P.W.37 was also with him and informed him that they have
committed murder of Suseela Ranganathan and the body was packed in a gunny bag
and it should be removed. His further evidence is that the Car of the 1st
accused TTU 4117 was found in front of the quarters of the deceased at about
11.30 p.m and the key of the quarters of the deceased was with the 3rd
accused. He would further state that the 3rd accused opened the quarters and
they all lifted the bag, placed the same in the dickey and went through
Chetpet over bridge till School gate. According to him, the body was taken
and placed over the railway track and they also saw an approaching electric
train towards Tambaram. His further evidence is that he and P.W.37 ran away
and others also ran away. He claims to have seen the car next day at the same
place with deflated tyres. His evidence corroborates the evidence of P.Ws.7
and 14 and lends assurance to their evidence.
21. The learned Senior Counsel appearing for the 1st appellant on
this point contended that P.W.14 claims to have seen the car from the morning
of 10.5.95, whereas even according to the prosecution, the occurrence took
place in the afternoon of 10.5.95 and therefore, the evidence of P.W.14 cannot
be used to convict the accused. P.W.14 gave evidence in the month of January
1997 about the incident that took place on 16.5.95. Merely because in the
cross examination he says that he noticed the car in the morning of 10.5.95
when he, was proceeding to the work, the prosecution case that the car was
used for transporting the deceased only during the night of 10.5.95 cannot be
rejected, especially when a complaint was lodged by P.W.14 only on 16.5.95.
If he would have lodged the complaint on 10.5.95 itself, then the contention
of the learned senior counsel can be upheld. But he lodged the complaint only
on 16.5.95 and therefore, there is every likelihood of his forgetting the date
on which he saw the vehicle due to lapse of time, since after all human memory
is not infallible. Moreover, Ex.P.5 the complaint which was lodged by P.W.14
only states that the car was stationed only from the night of 10.5.95. Of
course, P.W.14 admits that he gave Ex.P.5 complaint. Therefore, the
contention of the learned senior counsel cannot be appreciated in the light of
the contents of Ex.P.5.
22. The evidence of P.W.38 not only supports and strengthens the
evidence of P.Ws.7 and 14 but there is an extra judicial confession made by
these accused to P.W.38 that they killed the deceased. The statement of the
accused to P.W.38, who is not an accused presently and who is only a witness
in this case is admissible as an extra judicial confession of the accused.
23. The further evidence that the car belonging to the 1st accused
was used for transporting the deceased was strengthened by the recovery of a
pillow M.O.29, from inside the car under Ex.P.52 mahazar by P.W.28. The
pillow was compared with the pillow seized under Ex.P.2 from the quarters of
the deceased and they tallied. Therefore, it is yet another circumstance to
prove that the car of the 1st accused was used by these accused to transport
the deceased.
24. The next piece of evidence is that P.W.41 went to the house of
the 1st accused on 19.5.95. The 1st accused on spotting P.W.41 tried to take
to his heels and immediately he was caught and questioned. It is the further
evidence of P.W.41 that gold bangles M.O.1 were recovered under Ex.P.12
mahazar. P.W.36 and P.W.22 who are the attestors in Ex.P.12 mahazar
corroborate the evidence of P.W.41. M.O.1 bangles were identified by P.Ws 1
to 3. The accused also have no claim over M.O.1. This recovery of M.O.1
connects the accused with the crime. The learned senior counsel for the 1st
appellant submits that the recovery is false, since M.O.1 was sent to Court
only on 31.10.95 as per the evidence of P.W.42 – the Investigating Officer.
The evidence of P.W.42 in the cross examination is that the concerned
Magistrate for Kilpauk Police Station is XIV Metropolitan Magistrate, but
final report has to be filed only before the II Metropolitan Magistrate and
therefore, the Magistrate informed him to keep the jewels and produce them at
the time of filing the final report and that is why he sent the jewels on
31.10.95. If the jewels were recovered on 19.5.95 from the 1st accused and
immediately afterwards from A.2 to A.4, P.W.42 had no necessity to keep them
with him for more than five months and therefore, his statement that he was
advised by the Court to produce the jewels at the time of filing final report
appears to be true. The jewels taken away by the accused are said to be 296
grams and it cannot be said that all these jewels were procured at a later
point of time to link these accused with the crime. Therefore, we accept the
explanation offered by P.W.42 for the delay caused in sending the jewels to
the Court.
25. P.W.41 – the Sub Inspector of Police after recovering M.O.1 gold
bangles from the 1st accused, produced the 1st accused and M.O.1 to P.W.42 –
the Inspector of Police along with the statement recorded from the 1st
accused. After altering the first information report to one under Secs.302,
380 read with 120B IPC, P.W.42 took the 1st accused and the 1st accused
identified 2nd, 3rd and 4th accused at Kasi Chetti Street and thereafter 2nd,
3rd and 4th accused were arrested.
26. P.W.42 questioned A3 and recorded his statement, the admissible
portion of which is Ex.P.46. In his statement A3 would say that he entrusted
a ring, a gold chain, a pair of diamond ear studs and a key bunch with P.W.20
and he gave a pair of bracelet to P.W.11. P.W.42 questioned 4th accused who
also gave a statement, the admissible portion of which is Ex.P.47. He then
recovered a pair of diamond ear studs- M.O.21 from the person of A4 under
Ex.P.30 mahazar. When A2 was questioned, he informed P.W.42 that he has
placed a bag containing jewels in the house of P.W.10 in RBI quarters, the
admissible portion of the statement is Ex.P.48. P.W.42 was taken by A3 to the
house of P.W.20 where P.W.20 handed over a cover containing M.Os. 16,1 8 and
20 viz., a diamond ring, gold chain and diamond tups. P.W.42 recovered the
same under Ex.P.11 mahazar. This piece of evidence has been spoken to by
P.W.42, P.W.20 and P.W.35. Since P.W.35 spoke about the recovery of only
M.Os. 18 and 19 the learned senior counsel Mr.V. Gopinath, appearing for A3
contends that the recovery has not been proved. The recovery was made in the
year 1995 while the evidence was recorded in 1997. Lapse of memory may be the
reason for not remembering all the items as he failed to mention M.O.20 and
the key bunch and P.W.20 also failed to mention key bunch though he spoke
about the recovery of M.Os.16,18 and 20. Therefore, the evidence of recovery
cannot be disputed on that score. His further contention is that though two
gold bangles were said to have been recovered from P. W.11, P.W.11 did not
support the case of the prosecution and turned hostile. Just because P.W.11
turned hostile, the evidence of P.W.42 regarding the recovery is not affected.
27. P.W.42 was taken by the 2nd accused to the quarters of P.W.10.
P.W.42 then questioned P.W.10, who produced a bag containing M.Os.1 to 5, 17
and 19. They were recovered under the cover of Ex.P.9 mahazar along with
M.O.10 violet colour bag, M.O.11 – plastic cover, M.O.41 key bunch, M.O.42 –
another key bunch and M.O.43 – a key. This evidence was corroborated by
P.W.16.
28. The jewels seized from A.1 and A.4 and the jewels seized on the
information furnished by A.2 and A.3 were identified to be the jewels of the
deceased by P.W.1 – “Sambandhi” of the deceased, P.W.2 – elder sister of the
deceased and P.W.3 – an officer working in the Reserve Bank of India along
with the deceased. It is not the case of the defence that either of the
accused is the owner of any of the jewels. No explanation was also
forthcoming from any of the accused as to how they came to possess the jewels
belonging to the deceased. The learned Senior Counsel Mr.V. Gopinath
appearing for the 3rd accused contends that according to P.W.42, at the
instance of the 2nd accused M.Os.2 and 3 were seized whereas, P.W.9 would
state that the 3rd accused sold M.Os.2 and 3. In the cross examination itself
it was elicited from P.W.9 that he could not definitely say whether M.Os.2 and
3 were the jewels recovered from him. Merely because P.W.9 pointed out 3rd
accused instead of 2nd accused, the recovery cannot be disputed. There is
possibility of 2nd accused also accompanying 3rd accused and selling the
jewels M.Os.2 and 3 through 3rd accused. After all the evidence on record
only shows the conjoint acts of all the accused. The Supreme Court in 1985 SC
(Crl) at 263 has been pleased to hold that the testimony of panch witnesses
will not become doubtful merely on their failure to identify the accused. In
1979 SCC (Crl.) 56 it has been held by the Supreme Court that if the evidence
of the Investigating Officer, who recovered the M.Os is convincing, the
evidence as to recovery need not be rejected on the ground that the seizure
witnesses do not support the prosecution version.
29. The learned Senior counsel Mr.V. Gopinath while attacking the
recovery at the instance of the 2nd accused contends that P.W.10 did not state
that it was the 2nd accused who kept the bag M.O.30 containing jewels in his
house and according to him it was one Nagath Ali who informed him about the
2nd accused placing the bag in the house. According to the learned senior
counsel in the absence of examination of Nagath Ali it cannot be held to have
been proved that it was the 2nd accused who placed the bag with the jewels in
the house of P.W.10 . Though Nagath Ali was not examined, the recovery has
been made on the information furnished by the 2nd accused. There is
absolutely no information preceding the information furnished by the 2nd
accused and therefore, the information furnished by the 2nd accused leads to
the discovery of a fact that a bag M.O.30 containing the jewels from the house
of P.W.10. Consequent recovery corroborates the information given by the
accused and the knowledge of the accused regarding the presence of the jewels
in the house of P.W.10 connects the accused with the crime under Sec.27 of the
Evidence Act. Therefore, non examination of the said Nagath Ali is not fatal
to the prosecution at all. P.W.16 has corroborated the evidence of P.W.42 in
this regard. Therefore, we hold that the jewels inside M.O.30 bag were
recovered on the information furnished by the 2nd accsued alone.
30. The circumstances that all the accused were seen together by
P.W.7 going in a Fiat Car at about 11.30 p.m on 10.5.95 from R.B.I Quarters,
where the deceased was residing, the circumstance that the Fiat car of A.1’s
father was found stationed near by the railway track where the body of the
deceased was found, the circumstance that after 10.5.95 the deceased was not
seen alive by anybody, the circumstance that certain jewels were recovered
from the persons of A.1 and A.4 and the circumstance that some other jewels
were recovered on the information furnished by 2nd and 3rd accused, the
circumstance that the jewels were identified to be that of the deceased by
P.Ws.1 to 3 and the evidence of P.Ws.10, 11 and 20 conclusively go to prove
that it were these accused who were responsible for the death of the deceased
and for the commission of robbery also. Further the evidence of P.W.3 8 –
approver lends corroboration to the above evidence. According to P.W.38, as
stated supra, the accused confessed before him that they caused the death of
the deceased. He also says that the body was transported in the fiat car.
31. A further piece of evidence was also adduced by the prosecution
in the nature of finger print of the 2nd accused through P.W.31. P.W.31, a
Finger Print Expert lifted three finger prints in the steel bureau, out of
which, one print tallied with the print of the 2nd accused. P.W.42 would say
that the finger prints of all the accused were taken by the constable on his
direction. The learned senior counsel contends that the evidence of Finger
Print Expert cannot be relied on since Police Standing Orders 836 (4)(k) has
not been followed in this case. According to that Order finger impression
shall be taken only by Officers declared by a Superintendent or, in the City
of Madras, by the Commissioner of Police to be qualified to take clear and
well rolled impressions. In support of his contentions he relies on a Bench
ruling of this Court reported in Shanmugayya and Others vs State (1992 (3)
Crimes 505.The Bench itself has stated in paragraph 36 that of course, it is
possible to argue that Police Standing Orders do not have statutory force and
therefore, non following of the Standing Order cannot be held in favour of the
appellants. While considering whether the non following of the procedure of
the Police Standing Orders was only irregular which did not affect the fact of
finger print impression, only a direction was given to the State Government to
make rules under Sec.8 of the Identification of the Prisoners Act 1920. It
has to be remembered that when the Expert gives an opinion that the Finger
Print lifted in a scene of crime tallies with the specimen finger print sent
by the police, if the specimen finger print is not that of the accused, can it
be said that the specimen finger print was taken from somebody else and then
sent for expert’s examination? Merely because there was violation of a police
standing order, we are unable to hold that the evidence of the Finger Print
Expert has to be totally eschewed from consideration. Even if the evidence of
the expert is not taken into consideration, still the circumstances narrated
earlier would only unclinchingly prove the guilt of all the four appellants
beyond all reasonable doubts.
32. The evidence adduced in this case not only proved that the
appellants have murdered Suseela Ranganathan but they have also robbed her of
her jewels. The Supreme Court in the case of Sanjay Alias Kaka vs State (NCT
of Delhi) reported in 2001 SCC (Crl) 449 held as follows:
“Besides Section 27, the Courts can draw presumptions under Section 1 14,
Illustration (a) and Section 106 of the Evidence Act. The presumption
permitted to be drawn under Section 114 Illustration (a) of the Evidence Act
has to be read along with the “important time factor”. If the ornaments in
possession of the deceased are found in possession of a person soon after the
murder, a presumption of guilt may be permitted. In the instant case also,
the disclosure statements were made by the accused persons on the next day of
the commission of the offence and the property of the deceased was recovered
at their instance from the places where they had kept such properties, on the
same day. The murder and robbery in the instant case were part of the same
transaction and the accused from whom the recoveries were made, consequent
upon their disclosure statements, did not offer any explanation regarding
their possession of the stolen properties”.
33.In the case of Sri Bhagwan vs State of Rajasthan (2001 (3) Crimes
35 (SC),the Apex Court has been pleased to hold that if the appellant could
not give an explanation as to how he came into possession of various gold
ornaments belonging to the deceased, it is a fit case where the presumption
under Illustration (a) to Section 114 of the Evidence Act could be drawn that
the appellant committed the murder and the robbery.
34. Yet another case reported in 2002 AIR SCW 2060 (Ezhil vs State of
Tamil Nadu) is an apt decision to the facts of the present case. Their
Lordships have been pleased to hold thus:
“The accused have not been able to properly or reasonably explain as to the
legitimacy or origin of their possession of the articles carried by the
deceased when he arrived from abroad at the airport at Chennai. In such
circumstances, since the facts relating to the same being especially within
the exclusive knowledge of the accused, the legislature engrafted a special
rule in Section 106 of the Evidence Act, to meet certain exceptional cases in
which not only it would be impossible but disproportionately difficult for the
prosecution to establish such facts which are specially and exceptionally
within the exclusive knowledge of the accused and which he could prove without
difficulty or inconvenience. The appellants in this case have miserably
failed to explain their lawful possession of those articles with them that
really belonged to and were in the possession of the deceased when he landed
at the airport at Chennai. Consequently, it was legitimate for the Courts
below, on the facts and circumstances of this case, to draw the presumption
not only of the fact that they were in possession of the stolen articles after
committing robbery but also committed the murder of the deceased, keeping in
view the proximity of time within which the act of murder was supposed to have
been committed and body found and the articles recovered from the possession
of the accused”.
35.In this case though the offence took place on the night of 10.5.9
5, the appellants were able to be arrested on 19.5.95 and the recoveries of
the jewels of the deceased were made on that day and on 20.5.9 5 i.e., within
10 days. The prosecution was able to prove the circumstances which taken
together complete the chain of circumstances to prove the guilt of the accused
and the huge recoveries made from them and at their instance is a sufficient
circumstance to hold that they were not only guilty of robbery but also guilty
of murder. The proximity of time between the death of the deceased and the
recoveries of the jewels of the deceased at the instance of the accused
enables the Court to draw an inference that the accused/appellants not only
robbed the jewels of the deceased, but committed her murder also. In view of
the above discussions, we have no reason to disturb the finding of the trial
Judge that the appellants are guilty of offences punishable under Secs.449,
302 read with 34, 397 read with 34 and 201 read with 34 IPC.
36. In the result, the conviction and the sentence passed on the
appellants are confirmed and the appeal stands dismissed.
(S.J.J.,) (M.S.J.,)
3-10-2002
sr
Index:yes
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To
1. The Principal Sessions Judge, Chennai
2. The Public Prosecutor, High Court, Madras
3. The Director General of Police, Madras
4. The District Collector, Chennai
5. The Superintendent, Central Prison, Vellore
6. The Superintendent, Central Prison, Chennai
7. The Inspector General of Police (Crime),
G-3, Kilpauk Police Station, Chennai-10