IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 5-12-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.Nos.1120 of 2007 and 502 of 2008 Anbuselvi @ Selvi .. Appellant in CA 1120/2007/Accused No.2 Manikandan .. Appellant in CA 502/2008/Accused No.1 vs State rep. By Inspector of Police Sulur Police Station (Crime No.351/06) .. Respondent /Complainant Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore at Tiruppur, made in S.C.No.69 of 2007 dated 31.8.2007. For Appellants : Ms.Jayasri Baskar For Respondent : Mr.P.Kumaresan Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals C.A.No.1120/2007 by A-2 and C.A.No.502 of 2008 by A-1. 2.These two appellants stood charged, tried under Sections 120 (B), 302 read with 109 and 392 read with 397 of IPC, found guilty as per the charges and awarded life imprisonment for charges no.1 and 2 and seven years Rigorous Imprisonment for the third charge. 3.The short facts necessary for the disposal of these appeals could be stated thus: (a) P.W.1 is the husband and P.W.2 is the son of the deceased Chinnammal. A-2 was employed as a servant maid in the house of P.W.1. A-1, the husband of A-2, was employed in a nearby Spinning https://hcservices.ecourts.gov.in/hcservices/ Mill. On the date of occurrence namely 7.6.2006, P.W.1 left for shandy for the purchase of bulls. When he went, his wife Chinnammal was in the house along with A-2. P.W.2 was not available on that day. P.W.1 returned home in the night hours, and P.W.2 also came back at about 9.00 P.M. They could not found the deceased in the house. Then, they were searching for her. (b) On 7.6.2006, at about 2.30 P.M., when P.W.3 was going in his motorbike near Kondanayakan pond, he found the deceased and A-2 together. On that day at about 2.45 P.M., P.W.5 found A-1 proceeding towards the pond, and after a short while, both A-2 and the deceased were proceeding to the nearby water pipe with pots. Thereafter, they also proceeded towards the pond. P.W.5 was of the impression that they had been to attend the nature's call. After sometime, P.W.5 saw both the accused returning; but, the deceased was not found in their company. At about 3.00 P.M., P.W.4 found A-1 and A-2 getting into a transport corporation bus bound for Singanallur, and they were having a hand bag. In the meanwhile, A-2 took the deceased to the pond and A-1 also joined there. As per the conspiracy hatched up by them previously, they murdered her by strangulation and also caused injuries on the head and then pushed the dead body into the pond. Then, they left the place after robbing the jewels which were worn by her. (c) On 8.6.2006 at about 6.15 A.M., P.W.6 went to the pond for attending the nature's call and found the dead body of the deceased Chinnammal in the pond. Immediately he rushed to P.W.1 and informed him about the same. P.W.1 accompanied by P.W.2 went to the pond and found the dead body. Then, he proceeded to the respondent police station where P.W.16, the Sub Inspector of Police was on duty. He gave Ex.P1, the report, on the strength of which, P.W.16 registered a case in Crime No.351 of 2006 under Sections 302 and 379 of IPC. The printed FIR, Ex.P12, was despatched to the Court. (d) P.W.17, the Inspector of Police of that Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P4, and also a rough sketch, Ex.P13. Then, he conducted inquest on the dead body of Chinnammal in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P14. From the place of occurrence, he recovered bloodstained earth, sample earth, rubber chappals, 3 bloodstained stones and also ear studs. Thereafter, the dead body was sent to the Government Hospital along with a requisition for the purpose of autopsy. (e) P.W.8, the Tutor in Forensic Medicine, Coimbatore Medical College Hospital, on receipt of the said requisition, conducted autopsy on the dead body of Chinnammal and has issued a postmortem certificate, Ex.P3, with his opinion that the deceased would appear to have died of head injury. (f) Pending the investigation, the Investigating Officer arrested both the accused on 11.6.2006. A-1 came forward to give a confessional statement which was recorded in the presence of witnesses. The admissible part is marked as Ex.P6, pursuant to which he took the police party to P.W.11, the jewellery shop owner, from https://hcservices.ecourts.gov.in/hcservices/ whom M.O.8 series, 3 bills, were recovered under a cover of mahazar, Ex.P7. Then Rs.430/- has also been recovered. Apart from that, a pair of bangles, M.O.2, was also recovered from the shop of P.W.11 under Ex.P10, mahazar. Thereafter, the confessional statement voluntarily given by A-2, was recorded, and the admissible part is marked as Ex.P8, pursuant to which she produced M.O.1 thali chain, M.O.10, chain, and M.O.11, ring, and M.O.12 ear stud. They were all recovered under a cover of Ex.P9, mahazar. They were all sent to the Court. Both the accused were sent for judicial remand. All the material objects recovered from the place of occurrence, from the dead body and from the accused pursuant to the confessional statements voluntarily given by them, were subjected to chemical analysis by the Forensic Sciences Department. Ex.P16 is the chemical analyst's report, and Ex.P18 is the serologist's report. (g) At the time of investigation, P.W.6 gave a statement to the effect that A-1 who was working with him as a Fitter, worked in the morning hours of 7.6.2006; but, he did not come for work in the afternoon. On completion of investigation, the Investigator filed the final report. 4.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 17 witnesses and also relied on 19 exhibits and 21 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The lower Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence, found them guilty and awarded the punishment as referred to above. Hence this appeal at the instance of the appellants. 5.Advancing arguments on behalf of the appellants, the learned Counsel Ms.Jayasri Baskar made the following submissions: (i) The prosecution had no direct evidence to offer. It has actually relied upon the evidence of P.Ws.3, 4 and 5 in order to speak about the last seen theory. According to P.W.3, he found the deceased in the company of A-2 at about 2.30 P.M. near the water pipe. According to P.W.5, he saw both A-1 going towards the pond and A-2 and the deceased going towards the water pipe, and after a short while, they also proceeded towards the pond. P.W.5 would further add that after sometime, both the accused were returning; but, the deceased was not found. According to P.W.4, A-1 and A-2 were actually found together while they boarded a bus bound for Singanallur. The evidence of these witnesses if scrutinised carefully, will not satisfy as to the last seen theory. 6.The learned Counsel would further add that as far as P.W.5 was concerned, according to him, he saw both of them within 100 feet from the place where the water pipe is situated; that in the cross- examination, he has categorically admitted that he has actually seen them within 50 feet from the pond, and he was chatting with someone; that if such an occurrence has taken place as put forth by the https://hcservices.ecourts.gov.in/hcservices/ prosecution, the deceased would have cried as well as the witness would have heard the noise; but, it is not the case that he heard anything, and hence, P.W.5 could not have been in the place of occurrence at all; that as far as A-1 and A-2 are concerned, their confessional statements were relied on by the prosecution; that according to both of them, after the occurrence was over, they took the jewels, and they were actually bloodstained, and the jewels were washed in the pipe; that had it been true, P.W.5 could have seen the same; but, P.W.5 has not spoken anything in that regard; that apart from that, though the witnesses were examined and their statements were recorded by the Investigator on 8.6.2006, the statements reached the Court along with the final report on 7.10.2006; that it would be quite clear that they are all created evidence, and hence their evidence cannot be believed. 7.Added further the learned Counsel that insofar as the arrest, confession and recovery, the prosecution has miserably failed to prove the same; that the Investigator would claim that A-1 and A-2 were arrested on 11.6.2006; and their confessional statements were recorded; but, at the end of the statements, it could be seen that the documents were signed by the Investigator on 8.6.2006 itself; and that now, at this juncture, it is pertinent to point out that at the time of questioning under Sec.313 Cr.P.C., A-1 has clearly stated that both of them were taken to the police station two days earlier, and they were in the police custody, and these documents were actually prepared even earlier on 8.6.2006 itself, but the date is shown as 11.6.2006 in order to suit the prosecution case. 8.Added further the learned Counsel that M.O.8 series were claimed to have been recovered from P.W.11 who was identified by A-1 in respect of the jewels purchased from the shop of P.W.11; that it is claimed by the Investigator that they were recovered on 11.6.2006; but, the Court seal in those documents are found as 9.6.2006, and thus it would be quite clear that the claim by the Investigator that they were actually recovered on 11.6.2006 itself would be nothing but false. 9.The learned Counsel would further submit that the signature of A-1 found in all these three bills namely M.O.8 series, would completely differ from the signature found in the questioning under Sec.313; that as far as the conspiracy is concerned, there is no evidence at all; that the conspiracy theory put forth by the prosecution, has miserably failed; that all the documents have reached the Court at the time of the filing of the final report; and that further, it could be seen that Ex.P1 was given by P.W.1 stating that they entertained suspicion not only on the accused, but also on two other persons; but, at the time of investigation, actually nothing was done in order to trace or enquire or interrogate or investigate as far as the other two persons are concerned. 10.Added further the learned Counsel that even in the request for postmortem, it is stated that some persons have committed the crime for robbing the jewels; that all would go to show that the investigation was not done in the right line, and what was placed before the trial Court was not at all worth mentioning; that on the same, a conviction could not be sustained; that under the https://hcservices.ecourts.gov.in/hcservices/ circumstances, the prosecution case fails, and they are entitled for acquittal in the hands of this Court. 11.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 12.It is not in controversy that the wife of P.W.1 by name Chinnammal was done to death in an incident that took place in the afternoon of 7.6.2006. Following the inquest made by the Investigator P.W.17, the dead body was subjected to postmortem by P.W.8, the Doctor, who has given his categorical opinion as a witness before the Court and also through the postmortem certificate issued by him, that she died due to the injuries sustained by her. The fact that she died out of homicidal violence was never disputed by the appellant before the trial Court, and hence no impediment is felt by this Court in recording so. 13.The prosecution in order to substantiate the charges levelled against the appellant/accused, had no direct evidence to offer and rested its case exclusively on the circumstantial evidence. It is not that this Court is unmindful of the settled proposition of law and also the decision of the Apex Court that in a given case like this where the entire case rests on circumstantial evidence, the prosecution must place and prove all the necessary circumstances making a complete chain without a snap and also pointing to the hypothesis that except the accused, no one could have committed the offence. In the case on hand, the Court is thoroughly satisfied that the prosecution before the trial Court has placed the necessary circumstances and adduced proof therefor. 14.P.W.1 is the husband and P.W.2 is the son of the deceased Chinnammal. According to them, on the date of occurrence, P.W.1 left for purchase of a bull in the nearby shandy, and P.W.2 was also absent, and both of them left the house leaving Chinnamal in the house, and at that time, A-2 who was employed as a servant maid in the house, was along with her, and when they returned night, both Chinnammal and A-2 were not available. The evidence would further go to show that after making a search and informed to the relations, P.W.1 was informed by P.W.6 on 8.6.2006 morning that the dead body of Chinnammal was found in the pond, and then he proceeded to the pond and found the dead body, and thereafter he proceeded to the respondent police station and lodged a complaint pursuant to which a case came to be registered under Sec.302 of IPC by the respondent police. The prosecution had the advantage of examining three witnesses namely P.Ws.3, 4 and 5, from whose evidence it would be quite clear that not only A-2 was found with the deceased, but also A-1 the husband of A-2. 15.According to P.W.6, during the relevant time, he was employed along with A-1 in the spinning mill, and A-1 attended work in the morning hours on that day; but, he did not come for work in the afternoon. Thus, the absence of A-1 in the working place in the afternoon of 7.6.2006 was proved through P.W.6. https://hcservices.ecourts.gov.in/hcservices/ 16.P.W.3 has deposed that he was going by his motorbike, and at that time, he found the deceased and A-2 near the water pipe which was situated nearby Kondanayakan pond. P.W.5 has stated that on 7.6.2006 at about 2.45 P.M., he was proceeding to meet one Sundararajan, and at that time, near the pond, he saw the deceased in the company of A-2, and both of them were proceeding to the water pipe along with pots, and thereafter, they were proceeding towards the pond. According to P.W.5, at that time, he was under the impression that they went towards the pond to attend nature's call; but, after sometime, he saw both the accused came together and he did not find the deceased. P.W.4 in his evidence has stated that at about 3.00 P.M. on 7.6.2006, he saw both the accused getting into a transport corporation bus bound for Singanallur. From the evidence of these three witnesses, it would be quite clear that A-2 proceeded with Chinnammal towards the pond, and thereafter, A-1 went to the pond, and they have committed the offence of murder and pushed the dead body into the pond after robbing the jewels which were worn by Chinnammal, and thereafter, they were actually about to board a bus proceeding to Singanallur which was witnessed by P.W.4. Thus, the evidence of these three witnesses as narrated above, would clearly indicate that during the relevant time, both the accused were with Chinnammal, and thereafter, the dead body alone was found, and they left the place with the robbed jewels. 17.Apart from the above piece of evidence, the prosecution had to its benefit the recovery of the jewels worn by Chinnammal, pursuant to the confessions given by A-1 and A-2. Both were arrested on 11.6.2006. In the presence of P.W.10 and another, both, on their arrest on 11.6.2006, have given the respective confessional statements voluntarily to the Investigator. The admissible part of the confessional statement given by A-1, is marked as Ex.P6, and that of A-2 is Ex.P8. Following the confession, A-1 took the Investigator and the witnesses to P.W.11, the jewellery shop owner, from whom M.O.8 series, bills, and M.O.2, a pair of bangles, were recovered under Exs.P7 and P10 mahazars, respectively. Equally, pursuant to the confession made by A-2, M.O.1 thali chain, M.O.10, chain, M.O.11, ring, and M.O.12, ear ring, were recovered. All the above jewels namely M.Os.1 and 2, were identified by P.W.1. It is pertinent to point out that M.O.2 bangles, were recovered from P.W.11's shop as identified by A-1. From the evidence of P.W.11, it would be quite clear that M.O.2, bangles, were sold by A-1 for a sum of Rs.18,700/-, and after making a payment of Rs.10,000/-, for the balance both A-1 and A-2 purchased gold and silver ornaments. They are all recovered and marked as M.O.s.10 to 14. The bills for sale of those jewels and for purchase of those ornaments by the accused were actually recovered from the shop of P.W.11 and marked as M.O.8 series. It is pertinent to point out that all these bills bear the signature of A- 1. It remains to be stated that the occurrence has taken place on 7.6.2006, and all these jewels have been recovered on 11.6.2006 within a short interval of four days. The claim by P.W.1 that the jewels belonged to the deceased were not disputed by the appellants. It is not their case that the jewels belonged to them. Though they disputed the recovery, the prosecution had proved the same by necessary and sufficient evidence. Under the circumstances, it is a fit case where the presumption under Sec.114-A of the Evidence Act could be drawn that they are the thieves who have robbed the property https://hcservices.ecourts.gov.in/hcservices/ of the deceased. It is true that the presumption under Sec.114-A is a rebuttable one. But, the accused had no explanation to offer how they came into custody of the jewels of Chinnammal. Hence it is a fit case where the presumption has got to be drawn. 18.Now, the contention put forth by the learned Counsel for the appellants was that the evidence of P.Ws.3, 4 and 5 cannot be believed for the simple reason that if the occurrence has taken place within 100 feet from the water pipe, he would have heard the distressing cry of the deceased; that according to P.W.5, he was actually standing within 50 feet from the pond; that if both the accused as found in their confessional statements had washed the bloodstained jewels at the nearby water pipe, he would have seen them; but, he has not stated so, and hence it would be quite clear that P.W.5 could not have seen the occurrence at all. This contention cannot be countenanced in view of the evidence of P.W.5 that he had seen the deceased and A-2 together proceeding towards the pond, and after sometime, A-1 and A-2 alone were returning. 19.The learned Counsel would further add that the signature found in the questioning of A-1 under Sec.313 of Cr.P.C. and in M.O.8 series would differ. But, this contention cannot be accepted for the simple reason that in the questioning under Sec.313, he has signed in English; but, in M.O.8 series, he has signed in Tamil. 20.Above all, the learned Counsel brought to the notice of the Court that in the instant case, though the confessional statements and the recovery were claimed to have been made on 11.6.2006, the Investigator has signed the documents on 8.6.2006 itself, and thus the claim of the accused that they were taken to police custody two or three days earlier, and they were kept in illegal custody became true. This contention cannot be accepted for the simple reason that at the earliest, the date is mentioned as 11.6.2006; but, the Investigator who had commenced the investigation on 8.6.2006 itself, has committed a mistake by putting the date as 8.6.2006. 21.The next contention put forth by the learned Counsel for the appellants was that as per Ex.P1, four persons were suspected out of whom except the appellants, two were there; but, the Investigator did not investigate in that line. This contention cannot be countenanced for the simple reason that originally P.W.1 suspected all the four persons, and when he gave a complaint, the case was not registered against these accused persons alone; but, the accused remained unknown. Only after the arrest of A-1 and A-2, the truth was unfolded. Once the Investigator came to know that the appellants were involved in the crime, there was no need to investigate in a different line, and hence that contention cannot be accepted. 22.It is also further contended that in the requisition given for postmortem, it is stated that the assailants were unknown. At this juncture, it should not be forgotten that the requisition for postmortem was given on 8.6.2006, and on that day, who were the actual assailants remained unknown. The accused were actually fixed only on 11.6.2006 on the arrest of A-1 and A-2. Hence that contention cannot be accepted. https://hcservices.ecourts.gov.in/hcservices/ 23.The other contention put forth by the learned Counsel for the appellants that the prosecution has miserably failed to prove the conspiracy theory cannot be accepted at all. It is trite law that conspiracy can be proved either by direct evidence or could be inferred from the circumstances proved. In the instant case, A-1 and A-2 are the husband and wife respectively. A-2 was actually employed in the house of Chinnammal. As planned by them, Chinnammal was taken to the pond by A-2, who was a servant maid, in that afternoon, and at that time, A-1 who was actually employed in the mill, did not come for the work, and he also came to the pond where they have committed the crime and robbed the jewels of Chinnammal. Thus, from the proved facts it would be quite clear that pursuant to the conspiracy between the husband and wife, they have actually committed so, and hence the lower Court was perfectly correct in finding that the prosecution has proved the case. The contentions put forth by the learned Counsel for the appellants do not carry any merit whatsoever, and the lower Court was right in finding both the appellants guilty under Sections 120(B), 302 read with 109 and 392 read with 397 of IPC and awarded the punishment referred to above. This Court is unable to notice anything to interfere in the judgment of the trial Court either factually or legally. 24.In the result, both these criminal appeals fail, and they are dismissed confirming the judgment of the lower Court. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv/ To: 1. THE ADDITIONAL DISTRICT AND SESSIONS JUDGE FAST TRACK COURT NO.V COIMBATORE 2. THE INSPECTOR OF POLICE SALUR POLICE STATION 3. THE PUBLIC PROSECUTOR HIGH COURT MADRAS 4. THE SUPERINTENDENT SPECIAL PRISON FOR WOMEN CENTRAL PRISON VELLORE 5. THE ADDITIONAL SUPERINTENDENT CENTRAL PRISON COIMBATORE https://hcservices.ecourts.gov.in/hcservices/ 6. THE DISTRICT COLLECTOR VELLORE 7. THE DISTRICT COLLECTOR COIMBATORE 8. THE DIRECTOR GENERAL OF POLICE CHENNAI 1 cc To Mr.Jayasribaskar, Advocate, SR.68735 CRL.A.No.1120 of 2007 and 502 of 2008 NTK(CO) SRA(12/12/2008) https://hcservices.ecourts.gov.in/hcservices/