CRIMINAL APPEAL The Appellant/Accused was directed to be released on bail as per the order of this Court dated 07.09.06 in Crl.MP. No.4220/06. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.3.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal No.195 of 2006 Nagu @ Nagaveeralakshmi .. Appellant/Accused Vs. State, rep. by Inspector of Police R3, Ashok Nagar Police Station Ashok Nagar, Chennai.(Cr.No.1324/2001) .. Respondent/Complainant Appeal under section 374 of criminal procedure code against the judgment dated 30.04.2004 made in Sessions Case No.621 of 2003 on the file of the VI Additional Sessions Judge, Chennai. For Appellant : Mr.S.Swamidoss Manokaran For Respondent : Mr.N.R.Elango Addl. Public Prosecutor J U D G M E N T (Delivered by R.REGUPATHI,J.) The appeal is directed against the judgment dated 30.04.2004 made in Sessions Case No.621 of 2003 on the file of the learned VI Additional Sessions Judge, Chennai, whereunder the appellant, a woman, aged about 23 years at the time of trial, was convicted for the offences punishable under Sections 302 and 380 I.P.C. and sentenced her to undergo imprisonment for life and rigorous imprisonment for two years respectively. Both the sentences were directed to run concurrently. Aggrieved against the conviction and https://hcservices.ecourts.gov.in/hcservices/ sentence, the present appeal has been preferred before this Hon'ble Court. 2. As per the charge framed by the trial Court, it is alleged that on 19.10.2001 at 11.00 p.m., the accused, who was staying along with the deceased in a flat, demanded money from the deceased and when the deceased refused to give the same, on 20.10.2001 at 2.00 a.m., the appellant threw chilli powder on her face, assaulted her with a stick on her head and further closed her mouth by cloth and in the result, she succumbed to the injuries, thereby committed an offence punishable under Section 302 I.P.C. In the course of the same transaction, the accused committed theft of 13 sovereigns of gold jewels, silver articles and silver anklets, sarees, camera, all worth about Rs.1 lakh and thereby committed an offence punishable under Section 380 I.P.C. 3. When the accused was initially questioned, the appellant denied the complicity of committing such offence and therefore, trial of the case was taken up. 4. To prove its case, the prosecution has examined P.Ws.1 to 15, marked Exs.P1 to P18 and produced Material Objects 1 to 33. 5. The case of the prosecution, as discerned from the evidence of prosecution witnesses, is as follows: i) The deceased was living at Door No.G-3/21, Ivory Towers, Lake View Road, Mambalam, Chennai, as a lone lady. Some other ladies were also used to stay along with the deceased. Under such circumstances, on 20.10.2001, when P.W.3, a Milk Vendor, came to her residence to deliver the milk packet at about 5.00 a.m., the door of the house of the deceased was closed. In spite of pressing calling bell, there was no response and therefore, he handed over the milk packet to P.W.2, Watchman of the flat. P.W.2 placed the milk packet in front of the door of the house of the deceased and since it was not taken, he informed the same to P.W.1, the Secretary of the Flat Owners Association. P.W.1, on suspicion, along with P.W.4, one of the residents in the flat, opened the door and found that the deceased was in a pool of blood with injuries. Thereafter, a complaint was given to the police and on examination of the witnesses during the course of the investigation, it was found out that the accused was staying along with the deceased during night time and after committing the offence, she is alleged to have escaped with the jewels. She was subsequently arrested and the jewels were recovered from her residence. ii) It is the evidence of P.W.1 that when he was at home on 20.10.2001 at 2.00 p.m., P.W.2, Watchman, informed him that the milk https://hcservices.ecourts.gov.in/hcservices/ packet, kept in front of the residence of the deceased, was not taken and on suspicion, he came and informed him. Since a woman was staying alone in the residence, he summoned P.W.4, another lady staying in the same flat, to press the calling bell. P.W.4 pressed the calling bell for a long time and since it was not opened, P.W.4 initially entered into the house and found that the deceased was dead with bleeding injuries. A piece of cloth was found at the mouth of the deceased. Thereafter, he lodged a complaint, Ex.P1, to the police. iii) It is the evidence of P.W.2 that he is the Watchman of the flat, that he came to the flat at 6.00 a.m. for relieving the night watchman on 20.10.2001 and found milk packet in front of the residence of the deceased in the morning and since it was not taken till 11.00 a.m., he has taken the same and given it to P.W.4. Again, when he crossed the residence of the deceased at 2.00 p.m., he found the door was little open and the electrical lamp was burning. Finding that there was no response in spite of pressing the calling bell, he informed to P.W.1. Along with P.Ws.1 and 4, he came to the residence of the deceased and found that the deceased is dead. He corroborated the evidence of P.Ws.1 and 4. iv) It is the further evidence of P.W.2 that the Night Watchman of the flat, who was not examined, has informed that he saw the accused at 4.00 a.m. on 20.10.2001, who came to the main gate of the flat for the purpose of going out and as he refused to open the door, she went inside and again came at 5.00 a.m. and went out. v) P.W.3 is the milk vendor, who used to supply milk packets to the residents of the flat. It is her evidence that on 20.10.2001 at 5.00 a.m., when he went to the residence of the deceased, there was no response in spite of pressing calling bell and therefore, he handed over the milk packet to P.W.2, Watchman. When he was returning back, after delivery of the milk packets, he saw the accused standing near the main gate of the flat and she requested him to fetch an auto rickshaw to go to Central Railway Station. Accordingly, he arranged an auto rickshaw and the accused left from that place. vi) P.W.4 is residing in the same flat and it is her evidence that the deceased was living alone and her daughter, P.W.13, living at Hyderabad, was visiting her frequently. On 18.10.2001, P.W.13, who was staying with the deceased, left her residence at Hyderabad in the evening. At that time, two ladies were staying along with the deceased. On 19.10.2001 at about 9.00 p.m. the deceased along with two other ladies went out and the deceased returned back with one lady. On the next day at 7.00 a.m., P.W.2 informed her that a woman went out from the residence of the deceased at 5.00 a.m. At about 11.00 a.m. the milk packet, which was found in front of the residence of the deceased, was given to her by P.W.2 since it was not taken by https://hcservices.ecourts.gov.in/hcservices/ the deceased. At about 2.00 p.m. as requested by P.W.1, she entered into the residence of the deceased and found that the deceased was lying dead in a pool of blood and chilly powder was sprinkled on her face and eyes. vii) P.W.12, the Sub Inspector of Police, at 2.30. p.m. received Ex.P1 complaint lodged by P.W.1 and registered a case in Crime No.1324/2001 for an offence punishable under Section 302 I.P.C. Printed F.I.R. is Ex.P11. Copies of the FIR were despatched to the superior officials and the learned Magistrate. viii) P.W.14, Inspector of Police, on receipt of first information from P.W.12, proceeded to the scene of occurrence on the same day at 5.15 p.m. and summoned Scientific Expert, Handwriting Expert, Photographer, sniffer dog, etc. P.W.11 is the Scientific Expert, who after visiting the place of occurrence, taken sample blood of the deceased. P.W.14 caused the place of occurrence to be photographed. He prepared Ex.P2 Observation Mahazar and Ex.P13 Rough Sketch. He recovered M.O.3 bloodstained pillow clothing etc. under a mahazar. He conducted inquest over the body of the deceased in the presence of witnesses and prepared Ex.P14 Inquest Report and despatched the body of the deceased through P.W.10 Head Constable for post-mortem. ix) P.W.8, Dr.Baskar attached to Government General Hospital, Royapettah, on receipt of Ex.P7 requisition, conducted autopsy over the body of the deceased and found the following external and internal injuries: 1. An oblique laceration over front of mid fore-head measuring 5x2.5 cm bone deep. The lower end of this wound seen over the inner 3rd of right eyebrow. The upper end along the anterior mid-line close to hairline. 2. A transverse wedge shaped laceration involving the outer 2/3rd and adjacent part of left eyebrow measuring 5x3cmxbone deep. 3. An oblique laceration over left side of head and adjacent fore-head 8cm above left ear measuring 9x2x1cm. 4. An oblique laceration measuring 9.5x3x1cm seen 2cm above injury No.3. O/D. Bruising the scalp over front and left side of head over an area of 13x10 cm. Comminuted fracture of left temporal bone and adjacent part of frontal bone made out with fissured extension on to the base. Thin sub-dural and subarachnoid haemorrhage seen diffused over both cerebral hemispheres. Contusion of brain tissue seen involving the https://hcservices.ecourts.gov.in/hcservices/ left fronto – temporal haemorrhage seen in lateral ventricles. Fracture base of skull seen involving the anterior and left middle cranial fossae. Fracture of nasal and left lacrimal bone made out with bruising of surrounding tissues. Ex.P9 is the Post-mortem Certificate. The Medical Officer, on receipt of Ex.P8 chemical analysis report, was of the view that the deceased would appear to have died of head injuries. He has further opined that the injuries would have been caused by M.O.33 stick. x) P.W.13, daughter of the deceased, came from Hyderabad and has given a complaint, Ex.P13, after visiting the house of the deceased, in which she has stated that all jewels were missing from the bureau of the deceased. xi) On 24.10.2001, P.W.14 proceeded to search for the accused and arrested her at 9.30 a.m. at No.7-60, Bannari Street, Kuttalam village, West Godhawari District. P.W.14 recorded the voluntary confession statement given by the accused in the presence of P.W.7 and Narayanamoorthy and in pursuance of which, the accused handed over the jewels M.Os.6 to 26 taken from the bureau of the deceased. Ex.P.5 is the admissible portion of the confession statement and Ex.P6 is the recovery mahazar of M.Os.6 to 26, jewels. The Investigation Officer after producing the accused before the Judicial Magistrate, Kovur, West Godhawari District and after obtaining necessary orders, brought her and produced before XVII Metropolitan Magistrate on 25.10.2001 along with the material objects. The learned Judicial Magistrate remanded the accused to judicial custody. xii) On 29.10.2001, P.W.14 took the accused under police custody and in pursuance of the voluntary statement already given, he recovered M.O.33 stick from the residence of the deceased under Ex.P15 Mahazar on 30.10.2001 at 9.30 a.m. Thereafter, the accused was remanded to judicial custody. xiii) P.W.5, Saravanan, has been examined as an attesting witness for the preparation of Ex.P2 Observation Mahazar at the residence of the deceased and Ex.P3 recovery mahazar of M.Os.1 to 5. P.W.6, Karthik, was examined for recovery of the weapon of the offence, M.O.33 stick. However, he did not support the case of the prosecution and therefore, he was treated as hostile and his signature in Ex.P15 recovery mahazar is marked as Ex.P4. P.W.7 is the witness, who attested the voluntary statement of the accused and recovery mahazar for the jewels produced by the accused. P.W.10 is the Police Constable, who produced bloodstained materials from the scene of occurrence to the Court of learned Judicial Magistrate as per the direction of the Investigating Officer. xiv) P.W.9 is the Magisterial Clerk, who despatched the material https://hcservices.ecourts.gov.in/hcservices/ objects to the Chemical Analyst under Ex.P10 Court's letter and received Exs.P16 and 18 Chemical Examiner's Reports and Ex.P17 Serologist's Report. xv) P.W.14 on completion of the investigation and on receipt of report and opinion from the Medical Officer, handed over the investigation to P.W.15. P.W.15, Rajan, Inspector of Police, on completion of the investigation and examination of some of the witnesses, filed a final report against the accused for the offences punishable under Sections 302 and 380 I.P.C. on 28.1.2002. 6. When the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found against her in the evidence of prosecution witnesses, she denied the complicity of the commission of the offence. However, for the final question, she has stated that the deceased insisted her for prostitution, for which she denied, and the deceased gave Rs.500/- and she returned back to her village, however claimed that she did not know anything about the crime. Neither oral nor documentary evidence was adduced on the side of the defence. 7. The learned VI Additional Sessions Judge, Chennai, after perusing the materials produced, oral and documentary and after hearing the arguments advanced by both the sides, convicted and sentenced the appellant as aforementioned. Aggrieved by the same, the appellant filed the present appeal. 8.1. The learned counsel for the appellant submits that it is a case of circumstantial evidence and the occurrence took place during night time inside the residence of the deceased. The presence of the accused during the time of occurrence has not been proved by the prosecution beyond reasonable doubt. Though the presence previously and after the occurrence has been spoken to by some of the witnesses, their evidence is unreliable in view of the reason that those witnesses did not say about the name of the accused. P.Ws.2 to 4 simply say that they have seen the accused and such peculiar materials are insufficient to foist criminal liability in a grave offence like murder. 8.2. Inviting our attention to the voluntary confession statement alleged to have been given by the accused, the learned counsel submitted that the admissible portion was marked only with regard to the weapon used by the accused, but, with regard to the jewels, the admissible portion has not been marked and under such circumstances, the recovery, which has been done at the residence of the accused and the alleged production of the jewels cannot be taken as put forth by the case of the prosecution and that those jewels on production by P.W.13, daughter of the deceased, were planted on the accused for the purpose of falsely substantiating the case. https://hcservices.ecourts.gov.in/hcservices/ 8.3. The driver of the auto-rickshaw, who is alleged to have taken the accused from the main gate of the flat to the central railway station has not been examined. The Night Watchman of the flat, who is alleged to have informed P.W.2, the Day Watchman, about the movement of the deceased, accused and another woman, has not been examined and therefore, submitted that the circumstances put forth by the prosecution are insufficient to foist criminal liability on the accused. Though it has been stated that two ladies were present and the name of the second lady being Shanthi, the prosecution has not taken any effort to trace out the second woman and under such circumstances, a benefit of doubt must be given to the appellant. 8.4. In the alternative, it is also submitted that even if the recovery of the jewels from the residence of the accused is accepted, she will only be liable under Section 380 I.P.C. Since she is a mother of two children, leniency can be shown as she had already undergone imprisonment for 3½ years. 9.1. Per contra, the learned Additional Public Prosecutor submits that it is the positive evidence of P.W.3, milk vendor, that he knew about the accused and saw her living along with the deceased in the flat. He had also stated that the accused used to receive milk packet from him. On 20.10.2001, when he went to the residence of the deceased, there was no response in spite of pressing calling bell and after delivery of the milk packet, when he returned back to go out, he saw the accused standing at the main gate and at her request, he has arranged an auto rickshaw for the accused to go to the central railway station. It is the evidence of P.W.4 that she has seen the deceased on 19.10.2001 at about 9.00 p.m. along with the company of two ladies and all the three went out and returned back by 10.30 p.m. and at that time, she found only one lady with the deceased. She has also stated that P.W.2 informed her that the woman staying with the deceased went out in the morning. It is also the evidence of P.W.13, the daughter of the deceased, who was staying till the previous day of the occurrence, viz., 18.10.2001, after the delivery of a child, she was staying with her mother, the deceased, till 18.10.2001 and when she left from the residence, the accused and one Shanthi were staying along with the deceased. The learned Additional Public Prosecutor therefore submits that the presence of the accused during the fateful day at the residence of the deceased has been proved through the evidence of P.Ws.2 to 4 and 13 beyond reasonable doubt. 9.2. Coupled with their evidence, the recovery of huge quantity of jewels at the residence of the accused at Andhra Pradesh corroborated the case as put forth by the prosecution that it is the accused, who after committing the offence, took away the jewels resulting in the recovery. It is the evidence of the Doctor that the cause of the death of the deceased is due to homicidal violence. 10. We have perused the materials available on record and the https://hcservices.ecourts.gov.in/hcservices/ oral submissions made by both sides. 11.1. It is a case of circumstantial evidence. P.Ws.2 to 4 are natural independent witnesses and they do not have any animosity against the accused. It is P.W.3, Milk Vendor, who reached the residence of the deceased at the earliest point of time in the morning at 5.00 a.m. and found the door was closed and it was not opened in spite of repeated pressing of the calling bell. He has delivered the milk packet to P.W.2, Watchman, who kept the milk packet in front of the door of the residence of the deceased. Even at 11.00 a.m. in spite of pressing calling bell, since the packet was not taken by the deceased, it is he who has taken away the same and delivered to P.W.4 under the impression that the milk may get spoiled. P.W.4 also corroborated the evidence of P.W.2 Watchman. It is her evidence that she has seen the deceased along with the company of the two ladies and they went out at 9.00 p.m. and returned back at 10.30 p.m. and at that time, the deceased was accompanied by the accused. P.W.3 Milk Vendor has seen the accused at the main gate at 5.00 a.m. and he who arranged for an auto rickshaw to go to central railway station. The evidence of P.Ws.2 to 4 undoubtedly fixes the presence of the accused at the residence of the deceased during the fateful night. The accused also in the statement under 313 Cr.P.C. admitted her presence, however denied the complicity of the commission of the offence. 11.2. While looking at the list of jewels recovered from the custody of the accused, M.Os.6 to 26, it is a huge quantity and the identity of the same has been fixed by P.W.13, the daughter of the deceased. Previously, she has given a complaint about the missing of the jewels on 21.10.2001 itself and the same has reached the Magistrate's Court on the next day. The jewels were recovered only on 24.10.2001 at the residence of the accused at Andhra Pradesh. Though the portion leading to the recovery of the weapon has been marked as admissible portion under Section 27 of the Indian Evidence Act, on perusal of the voluntary statement, we find that the accused has also stated about the production of the jewels from her residence. This portion also should have been marked as an information divulged by the accused leading to the recovery and merely because of an error committed by the prosecution during the course of trial, we cannot shut our eyes on the recoveries made during the course of the investigation in the presence of P.W.7. 11.3. Under such circumstances, we are of the considered opinion that the prosecution has proved its case beyond reasonable doubts. Though it is the case of circumstantial evidence, the chain of materials put forth by the prosecution is complete and by looking at such materials, we can come to an irresistible conclusion that it is the accused and the accused alone has committed the offence of murder and theft. We do not find any reason to interfere with the conclusion reached by the trial Court and therefore, the conviction https://hcservices.ecourts.gov.in/hcservices/ and sentence passed by the trial Court are confirmed and the appeal stands dismissed. The appellant/accused is on bail. The bail bonds executed by her shall stand cancelled forthwith and the learned Sessions Judge is directed to take steps to secure the presence of the appellant/accused and commit her to jail to undergo the remaining period of sentence. The period of sentence already undergone by her shall be given set off. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ATR To 1. THE VI ADDITIONAL SESSIONS JUDGE, CHENNAI. 2. DO THRO THE PRINCIPAL SESSIONS JUDGE CHENNAI. 3. THE XVII METROPOLITAN MAGISTRATE,SAIDAPET, CHENNAI. 4. DO THRO THE CHIEF METROPOLITAN MAGISTRATE EGMORE, CHENNAI. 5. THE INSPECTOR OF POLICE R3, ASHOK NAGAR POLICE STATION ASHOK NAGAR, CHENNAI. 6. THE PUBLIC PROSECUTOR HIGH COURT, MADRAS. 7. THE SUPERINTENDENT SPECIAL PRISON FOR WOMEN, VELLORE. + 1 CC to Mr.S.Swamidoss Manokaran Advocate SR NO.17239 Crl.A.No.195 of 2006 JRG(CO) JJM(16/04/08) https://hcservices.ecourts.gov.in/hcservices/