The case of the prosecution, in a nutshell, is as follows:The deceased in this case, namely, Manickam Chettiar was residing with his wife Sigappi Aachi (P.W.5) as a tenant in the ground floor of the building belongs to one Ashok (P.W.1).Manickam Chettiar was running a Pawn-Broker Shop under the name and style of of “O.V.M. Sigappi Aachi Pawn- Broker”.Manickam Chettiar's elder son Narayanan is residing in New Zealand and the younger son Perianan is residing in Coimbatore.Manickam Chettiar and his wife Sigappi Aachi (P.W.5) were having a maidservant Lalitha, who was staying along with them.On 19.08.2010, Sigappi Aachi (P.W.5), along with maidservant Lalitha, went to Thiruapthi for Darshan.On 21.08.2010, at about 11.00 a.m., when the landlord Ashok (P.W.1) noticed that the front doors of the ground floor, where thehttp://www.judis.nic.in 3 deceased Manickam Chettiar was residing, was open and the inner doors were closed unusually, he called Manikam Chettiar twice, but there was no response and therefore, he proceeded with his work.When he returned after half an hour, even during that time also, the doors were in the same position and therefore, Ashok (P.W.1) went and knocked the door.The doors opened and he saw Manickam Chettiar lying in the floor and a mat (M.O.1) was placed on his face with a grindstone (M.O.2).On suspecting something would have happened, he called the neighbours and along with one Kannan (P.W.2), a neighbour, he entered into the house and found Manickam Chettiar died.They also noticed that the bureaus were open.Therefore, suspecting that somebody would have murdered Manickam Chettiar with an intention to steal the goods, he lodged a complaint (Ex.P1) before B5 South Gate Police Station, on 21.08.2010 at 12.00 noon.On intimation, Nidhikumar (P.W.26) Investigating Officer, went to the place of occurrence at 12.45 p.m., and prepared Observation Mahazar (Ex.P2) and Rough Sketch (Ex.P37) in the presence of Suresh (P.W.3) and Swaminathan (not examined).He also conducted inquest from 03.00 p.m., to 05.00 p.m., and prepared Inquest Report (Ex.P38).After completing the inquest, he sent the dead body for postmortem, through Samson Gunaraj (P.W.17), Head Constable, to the Government Rajaji Hospital, where, Dr.Vanitha (P.W.23), on 21.08.2010 at about 06.50 p.m., confirmed the death of Manickam Chettiar and sent the body to mortuary.The Accident Register issued by Dr.On 21.08.2010, at 05.00 p.m., in the presence of Suresh (P.W.3) and Swaminathan (not examined), Nidhikumar (P.W.26), Investigating Officer, recovered a bloodstained tile piece (M.O.5), a tile piece without bloodstain (M.O.6), bloodstained dhoti (M.O.3), bloodstained towel (M.O.4), bloodstained sofa-mat (M.O.1) and bloodstained grindstone (M.O.2) under a cover of mahazar (Ex.P3).On 23.08.2010, at about 09.00 p.m., in the presence of Janardhanan (P.W.6), V.A.O., and his assistants, Raju and Samayan (not examined), the Investigating Officer arrested Raji (A1), in front of Aalavai Lodge, situated at Melaperumal Meisthiri Street, Madurai Town.On his (A1's) confession statement, the Investigating Officer recovered a blue color travel bag (M.O.7), 8996.80 gram gold jewels (M.O.8), 1279.600 gram silver articles (M.O.9), cash of Rs.7,000/- (M.O.10), folding paper 20 in number (M.O.15), under the cover of mahazar (Ex.P6).Thereafter, on 24.08.2010, at 06.00 a.m., Raji (A1) was taken to his house situated at Alagappa Nagar, Madurai, where, in the presence of Janardhanan (P.W.6), V.A.O., and his assistants, Raju and Samayan (not examined), a bloodstained lungi (M.O.12) and a bloodstained fanta colour shirt (M.O.11) were recovered under the cover of mahazar (Ex.P7).At 07.00 a.m. Raji (A1) identified his wife Karthika @ Jayaparvathi (A2) and on his identification, the Investigating Officer arrested Karthika (A2) and in the presence of the same witnesses, he recovered gold jewels weighing about 142.700 gram and cash of Rs.5,000/- (M.O.13 series) under the cover of mahazar (Ex.Raji (A1), in his confession statement, stated that after the occurrence, he stayed in Sivabakya Lodge at Arapalayam, thereafter, shifted to one Vaithiyalinga Lodge at Madurai Town and then, to Aalavai Lodge at Madurai Town.The Investigating Officer (P.W.26) verified the registers of Sivabakya Lodge on 25.08.2010 at 10.00 a.m., in the presence of one Raja, Manager of Sivabakya Lodge (P.W.9) and recovered the registers upto 23.08.2010 (Exs.P14 and P15) under the the cover of mahazar (Ex.P16).He also inspected Vaithiyalinga Lodge on 29.08.2010 at 12.00 noon, and recovered the register for the period from 07.08.2010 till 29.08.2010 (Ex.P10) and the register for the period upto 29.08.2010 (Ex.P11) in the presence of one Mayan (P.W.8), Manager of the Vaithiyalinga Lodge, under the cover of mahazar (Ex.P13).The Investigating Officer (P.W.26) also inspected Alavai Lodge on 30.08.2010 at 10.00 a.m., and recovered the registers (Ex.P17 and P19), in the presence of one Srinivasan (P.W.10) under the cover of mahazar (Ex.P18).Right temporals muscle is bruised.Diffused subdural hamorrhage and subarachnoid haemorrhage noted on both the cerebral hemispheres.Contusion 16 cms x 11 cms noted on the whole of left cheek, extending upto upper part of left side of neck.Left upper two incisor teeth are found missing and their alveolar sockets found contused and contains blood clots.After receiving the Biological Report (Ex.P28), Dr.Natarajan (P.W.21) gave final opinion (Ex.P27) on 08.10.2010 that the deceased appeared to have died of asphyxia due to smothering associated with head injury 30-36 hours prior to postmortem.Natarajan (P.W.21), in his evidence, has stated that the injury No.1 is likely to occur when somebody oppresses his face and the injury Nos.2 to 4 are likely to occur when somebodyhttp://www.judis.nic.in 9 scuffles with the deceased and the injury No.5 is likely to occur, when somebody prevents the breath by oppressing the face and he has also stated that injuries found from cheek to neck is likely to occur by attacking grindstone (M.O.2).According to him, the incise wound found in the left upper jaw of the deceased is likely to occur during death.➢ Mayan (P.W.8) is the Manager of Vaithyalinga Lodge.In his presence the registers Ex.P10 and P11 have been recovered.➢ Raja (P.W.9) is the Manager of Sivabakya Lodge, wherein Raji (A1) has stayed for sometime and in his presence, the registers Exs.http://www.judis.nic.in 20 ➢ Parvathavarthini @ Uma (P.W.12) is the owner of the house situated at R.M.S. Colony and according to her, on 21.08.2010, Raji (A1) approached her through Alagarsamy (P.W.11), paid an advance of Rs.15,000/- and obtained the key of the rented portion.On the next day, by making a statement that he lost the key, has taken another key also from her.➢ Sethuraman Chettiar (P.W.13) is the owner of a Jewellary Shop, wherein, Raji (A1) attempted to sell the stolen articles.http://www.judis.nic.in 21 ➢ Arichandran (P.W.18) is the Head Constable, who stated about the seizure of material objects in the occurrence place.➢ Pandi (P.W.19) is Ambulance Driver.➢ Murugaiyan (P.W.20) is the photographer.➢ Natarajan (P.W.21) is the Doctor, who conducted autopsy.➢ Rajesh (P.W.22) is the Scientist from the Regional Forensic Science Laboratory, Madurai, who examined the material objects sent to him for analysis.➢ Vanitha (P.W.23) is the Doctor, who received the dead body on 21.08.2010 and issued Accident Register (Ex.P30).➢ Bose (P.W.24) is Sub Inspector of Police, who registered the First Information Report (Ex.P31).➢ Asha Kousalya Santhini (P.W.25) is the Judicial Magistrate No.T, Madurai, who conducted Test Identification Parade.➢ Nidhikumar (P.W.26) is the Investigation Officer, who conducted investigation and filed final report.http://www.judis.nic.in 22Taking note of the guidelines with regard to the circumstantial evidence issued by the Honourable Supreme Court, we have carefully analysed the circumstantial evidence available in this case.On 21.08.2010, Manickam Chettiar was found dead in his house in a suspicious manner.The deceased was a pawnbroker and he was residing in the house of Ashok (P.W.1) in the ground floor.His wife Sigappi Achi (P.W.5), along with her maidservant Lalitha, went to Thirupathi for Darshan and the deceased was alone in the house.Ashok (P.W.1), while moving out of his house, found the inner doors of the ground floor portion locked unusually and the front door was open and proceeded with his work.When he returned back, he noticed the doors in the same position.Therefore, he went and pushed the doors.He found Manickam Chettiar lying in the floor and a mat (M.O.1) with grindstone (M.O.2) was kept on his face.He immediately, informed the police about 12.00 noon.Natarajan (P.W.21), who conducted autopsy, has noted down five injuries in the Post-mortem Certificate (Ex.P26) and has given final opinion that the deceased died due to asphyxia due to smothering associated with head injury.According to him, the injury No.1 is likely to occur when somebody oppresses his face and the injury Nos.2 to 4 are likely to occurhttp://www.judis.nic.in 23 when somebody scuffles with the deceased and the injury No.5 is likely to occur, when somebody prevents the breath by oppressing the face and he has also stated that injuries found from cheek to neck is likely to occur by attacking grindstone (M.O.2).From the evidence of Ashok (P.W.1) and Kannan (P.W.2), it is evident that this is the case of homicide.While entering into the house of Manickam Chettiar (deceased), they found the almirahs were open.After returning from Thirupathi, Sigappi Achi (P.W.5) has noted down and taken stock of the jewels and has stated that around 9 kilograms of gold ornaments and 1.25 kilograms of silver articles along with cash of Rs.16,000/- are found missing.Pappiah (P.W.4), relative of maidservant Lalitha, has found the accused in the deceased's house prior to the occurrence.A receipt (Ex.P4) for pledging the jewels, was also recovered from the house of Raji (A1).On perusal of Ex.P4, it is seen that on 04.02.2010, Raji (A1) has pledged certain jewels with Manickam Chettiar and received a sum of Rs.16,000/-, of which, Raji (A1) has paid a sum of Rs.5,650/- and his signature is also available in Ex.Raji (A1) was arrested in front of Aalavai Lodge on 23.08.2010 in the presence of Janardhanan (P.W.6) and M.Os.7, 8, 9 and 10 have been recovered from him and in the presence of the same witnesses, on 24.08.2010, Karthika (A2) was arrested and M.O.13 series have been recovered from her.B.PUGALENDHI, J., Challenging the conviction and sentence for the offences under Section 302 and 449 I.P.C., imposed by the learned VI Additional District Sessions Judge, Madurai, vide Judgment dated 24.04.2017, in S.C.No.176 of 2011, the first accused has filed this Criminal Appeal.The Investigating Officer (P.W.26) sent the bloodstained articles for chemical analysis on 31.08.2010 with a requisition (Ex.P39) to the Judicial Magistrate and took policehttp://www.judis.nic.in 7 custody of Raji (A1) and Karthika (A2) and also made a requisition (Ex.P40) for conducting test identification parade.Thereafter, the Investigating Officer (P.W.26) took police custody of Raji (A1) on 06.09.2010 and on 07.09.2010, Raji (A1) gave a confession statement and based on his confession statement, a motorcycle (M.O.14) and piece of papers (M.O.15) used by the deceased to fold the jewels, were recovered under the covers of mahazar (Ex.P21 and P22 respectively) in the presence of one Ramanathan (P.W.15) and another.Karthika (A2) was also taken on police custody and from 11.30 a.m., to 5.30 p.m., a confession statement was recorded from her in the presence of the same witnesses and recovered a receipt bearing No.5780 (Ex.P4) for pledging the jewels.On 22.08.2010, at about 11.00 a.m., Dr.Natarajan (P.W.21) conducted autopsy on the dead body and issued the postmortem certificate (Ex.P26), wherein, he has noted the following injuries:-Cresentric nail 2 cms in length noted on the right side of cheek, convexity facing upwards.http://www.judis.nic.in 82. Abrasions each measuring 3c ms x 2 cms noted on the front of both knees.Abrasion 4 cms x 3 cms noted on the outer aspect of upper 3rd of left thigh.Abrasion 1 cm x 0.5 cm noted on the back of right ring finger.Contusion noted on the inner aspect of both the entire upper and lower lips.On dissection of scalp, skull & Dura:Contusion scalp 4 cms x 3 cms noted on right temporal region.A Test Identification Parade was conducted, on 04.09.2010, at the Central Prison, Madurai, by Asha Kousalya Shanthini (P.W.25), Judicial Magistrate No.V, Madurai.Raji (A1) was identified by Pappaiah (P.W.4) and Raja (P.W.9), Manager of Sivabakya Lodge.The Report of the Test Identification Parade, in respect of Raji (A1) is marked as Ex.Raji (A1) made an objection for the identification parade that the witnesses Pappaiah (P.W.4) and Raja (P.W.9), Manager of Sivabakya Lodge, saw him in the police station on the previous Tuesday.Pappaiah (P.W.4) identified Karthika (A2)http://www.judis.nic.in 10 during the Test Identification Parade.The Report for the Test Identification Parade, in respect of Karthika (A2) is marked as Ex.The Investigating Officer collected Biological Report (Ex.P28), wherein, it is stated that the blood deducted in M.Os.1, 3, 4, 5, 11 and 12 is that of human “A”.Rajesh (P.W.22), Scientist from the Regional Forensic Science Laboratory, Madurai, also gave a Report (Ex.P29) stating that the blood deducted in M.Os.1, 3 , 4, 5, 11 and 12 is that of “Human A”.After examining witnesses and collecting various reports, the Investigating Officer (P.W.26) filed final report, as against Raji (A1) and Karthika (A2) before the learned Judicial Magistrate No.IV, Madurai, in P.R.C.No.72 of 2010, for the offences punishable under Sections 120-B, 149, 380 & 302 r/w 34 I.P.C.On the appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session in S.C.No.176 of 2011 and made over to the learned VI Additional District and Sessions Judge, Madurai, for trial.http://www.judis.nic.in 11The Trial Court framed four charges, as detailed below:When questioned, the accused pleaded "not guilty".To prove the case, the prosecution examined 26 witnesses and marked 45 exhibits as well as 17 material objects.No witness was examined nor any document marked on the side of the accused.That apart, 09 documents were marked as court documents.When the accused were questioned under Section 313 Cr.P.C., on the incriminating circumstances against them, they denied the same.By Judgment dated 24.04.2017, the Trial Court acquitted Karthika (A2) of the charge under Sections 120-B, 449 r/w 34 & 302 r/w 34 I.P.C. and acquitted Raji (A1) of the charge under Sections 120-B I.P.C.; however, convicted and sentenced Raji (A1) as detailed below:The sentences have been ordered to run concurrently.Assailing the judgment of conviction and sentence, dated 24.04.2017, Raji (A1) is before this Court.Heard Mr.The learned counsel for the accused further stated that the pledge receipt (Ex.P4) does not have the signature of the deceased and no date has been mentioned in the receipt.This has also been admitted by Sigappi Achi (P.W.5) in her evidence.Further, recovery of M.O.15 is highly artificial and unbelievable, because, after the identification parade on 04.09.2010, the Investigating Officer, who took the police custody of Raji (A1) on 06.09.2010, recorded the second confession statement from A1 and made recovery of M.O.The second confession statement from the accused is unknown to law and the recovery was made after the identification parade.In order to suit their case against the accused, the prosecution made the false recovery, because, Raji (A1) was originally arrested on 23.08.2010 and on his confession M.Os.8http://www.judis.nic.in 14 to 10 were recovered.He, in his evidence, has stated about the lodging of complaint (Ex.P1).➢ One Kannan (P.W.2) is the neighbour of Manickam Chettiar (deceased).Ashok (P.W.1) along with Kannan (P.W.2) firstly noticed the death of Manickam Chettiar and he accompanied with Ashok (P.W.1) for lodging the complaint (Ex.P1).She went to Thirupathi, along with the maidservant Lalitha, for Darshan.P14 and 15 have been recovered.He has also identified Raji (A1) during the test identification parade.➢ Srinivasan (P.W.10) is the Manager of Aalavai Lodge and through him Exs.P.17 and P19 have been marked.➢ Alagarsamy (P.W.11) is a House-Broker, who arranged a house for the accused at R.M.S.Colony for the monthly rent of Rs.2,600/-.But, he turned hostile.➢ Sasikumar (P.W.14), who on the directions of the police, weighed the jewels recovered from Raji (A1).➢ Ramanathan (P.W.15) is the attestor for the recovery of M.O.14, which was recovered during the police custody from Raji (A1).➢ Mohan (P.W.16) is the Head Constable, who handed over the First Information Report (Ex.P31) to the Judicial Magistrate, on 21.08.2010 at 06.00 p.m. ➢ Samsun Gunaraj (P.W.17) is the Head Constable, who took the dead body to the hospital.The Trial Court, by order dated 23.10.2013 in Cr.M.P.No.324 of 2013, appointed an Advocate Commissioner, for the disbursal of the pledged jewels to the respective parties.Accordingly, the Advocate Commissioner issued a public notice on 06.11.2013 in Dhinamalar Tamil Newspaper to the general public regarding disbursal of pledged jewels to the pledgers on 25.11.2013 and 26.11.2013 in the District Legal Service Authority, Madurai.In response to the said publication, the general public, who have pledged their jewels in the deceased's pawnbroker shop, have appeared before the District Legal Services Authority, Madurai, on 25.11.2013, 26.11.2013, 16.12.2013, 17.12.2013 and 18.12.2013, contained in 783 receipts have been returned to the respective parties, after receiving principal and interest amount.The receipts of the general public, who have redeemed their pledged jewels from the Advocate Commissioner appointed by the Trial Court, have been marked as Court Document Nos.1 to 6 and the Reports of the Advocate Commissioner have been marked as Court Document Nos.7 and 8.http://www.judis.nic.in 25After the commission of offence, the accused though having a house at Alagappa Nagar in Madurai, has stayed in Sivabakya Lodge, Vaithyalinga Lodge and Aalavai Lodge.The registers recovered from Vaithyalinga Lodge have been marked as Exs.The registers recovered from Sivabakya Lodge have been marked as Exs.The registers recovered from Aalavai Lodge have been marked as Exs.The subsequent conduct of Raji (A1) in shifting his house is also elicited through the evidence of Alagarsamy (P.W.11) and Parvadhavardhini (P.W.12).After the occurrence, Raji (A1) in order to shift his house has approached Alagarsamy (P.W.11), housebroker, who arranged a house of Parvadhavardhini (P.W.12) for Raji (A1).By paying a sum of Rs.15,000/- as advance, on 21.08.2010, Raji (A1) obtained key from Parvadhavardhini (P.W.12) and on the next day, by saying that the key, which was already given to him, found missing, he had collected second key also.The evidence of Alagarsamy (P.W.11) and Parvadhavardhini (P.W.12) clearly elicit Raji's (A1's) conduct, which is also one of the circumstances and which draws inference against the accused.The Raji (A1) and Karthika (A2) were lastly seen in the house of Manickam Chettiar (deceased) by Pappaiah (P.W.4), who has also identified the accused during the test identification parade.Raja (P.W.9), Manager of Sivabakya Lodge has also identified Raji (A1) during the test identification parade.Furthermore, since the jewels were recovered from the accused, as per Section 114 of the Evidence Act, presumption shall fall upon the accused that they must be either the persons, who stolen the jewels or receivers of the stolen jewels.We are of the view that the prosecution has proved its case beyond all reasonable doubts and therefore, we are not inclined to interfere with the impugned judgment of the Trial Court.In the result, the Criminal Appeal fails and it is dismissed.Consequently, connected miscellaneous petition is closed.1.The VI Additional District Sessions Judge, Madurai.2.The Inspector of Police, South Gate Police Station, Madurai City.3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.4.The Record Keeper, Vernacular Records Section, Madurai Bench of Madras High Court, Madurai.http://www.judis.nic.in 28 R.SUBBIAH, J.and B.PUGALENDHI, J.krk / myr JUDGMENT IN Crl.A.(MD) No.344 of 2017 and Crl.M.P.(MD) No.8811 of 2017 22.04.2019http://www.judis.nic.in

Cited provisions: Section 120B in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 380 in The Indian Penal Code