IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 03/02/2003 Coram THE HONOURABLE MR. JUSTICE M. KARPAGAVINAYAGAM And THE HONOURABLE MR. JUSTICE A.K. RAJAN CRIMINAL APPEAL No.655 of 1998 Natarajan .. Appellant -Vs- Union Territory of Pondicherry, Rep. by the Inspector of Police, Odien Salai Police Station, Pondicherry. (Crime No.151/96) .. Respondent Criminal Appeal against the conviction and sentence imposed in S.C.No.43 of 1997 of 1999 on the file of the II Additional Sessions Judge, Pondicherry, dated 31.3.1998. For Appellant : Mr. A. Ramesh for M/s. Ram & Ram For Respondent : Mr. A.P. Surya Prakasam Addl. P.P. (Pondicherry) :JUDGMENT M. KARPAGAVINAYAGAM, J. The misfortune to be noticed in this case is that the name of the deceased, an old lady, aged about 70 years, who met with an unfortunate death in a gruesome murder for gain is Fortune Amalore. 2. The accused Natarajan, the appellant herein was convicted for the offences under Sections 449, 302, 404 and 201 I.P.C. on the charge that on 30.9.1996 at about 8.30 P.M., he trespassed into the house of Fortune Amalore alias Soundariammal, residing lone at Pondicherry and committed her murder by hitting with rice pounder and compressing her throat with his legs and threw the dead body into the well at the backyard and fled away with her jewels. Challenging the same, he has filed this appeal. 3. The facts leading to conviction in brief are as follows: "(a) The deceased Fortune Amalore alias Soundariammal was aged about 70 years. She has got three sons, who are residing in France. She was living alone in her house at No.32, Ignacy Maistry Street, Pondicherry. The upstairs of her house was rented to one Lawrence, the husband of P.W.2 Lucia. (b) On 1.10.1996, P.W.5 Srinivasan, the milk vendor came to her house in the early morning and kept milk in her kitchen through the back door as usual. Again on 2.10.1996, P.W.5 came in order to supply milk. He found that the milk kept by him on 1.10.1996 was not used. When he enquired the tenant in the upstairs, he told that she would have gone outside. On 3.10.1996, the milk vendor (P.W.5) again came to the house and went to the backyard to keep the milk. He found that the milk, which was alread y kept got spoiled. This time, the tenant Lawrence, the husband of P.W.2 Lucia and the milk vendor (P.W.5) entered into the house of the landlady in search of her. They could not find her inside the house. (c) P.W.1 Kannadasan is residing in the same street. P.W.1 often used to come to the house of the landlady for doing all her sundry works. In order to know about her whereabouts, P.W.2's husband and P.W.5 enquired P.W.1. P.W.1 then searched the l ady in the nearby locality and in her friends' houses and informed the tenant that he could not find the landlady anywhere. (d) P.W.1 and P.W.2 went back to the house and smelt a foul smell emanating from the well which was covered with an iron sheet. On lifting the iron sheet, P.W.1 to his shock found that the body of Fortune Amalore was floating in the well upside dow It was about 12.00 Noon on 3.10.1996. After informing this to her family friends, he rushed to the police station. (e) At about 1.30 P.M., P.W.1 gave a complaint Ex.P1 to P.W.19 Sub Inspector of Police. On receipt of the complaint, he registered the case under Section 302 I.P.C. Ex.P41 is the F.I.R. (f) As soon as the message was received, P.W.21, the Inspector of Police came to the police station and took up investigation. He went to the spot along with the Police Photographer and Finger Print Expert. He prepared observation mahazar Ex.P4 and roug h sketch Ex.P48. He recovered M.O.16 ever-silver bowl, M.O.17 water bottle. He further recovered M.O.18 carton box suspected to contain the finger prints of the culprit and handed over the same to P.W.20 Finger Print Expert. He also recovered M.Os.19 t o 24 from the scene. Then, the body was taken out from the well. P.W.21 held inquest from 3.00 P.M. to 8.00 P.M. The inquest report is Ex.P3. Then, he recovered M.Os.25 to 33, clothes, cement slab stone, etc. from the scene. He examined the witnesses. In the meantime, the body was sent for post-mortem to the General Hospital, Pondicherry. (g) P.W.16 Doctor, on receipt of requisition from P.W.21, the Inspector of Police, conducted post-mortem on 6.10.1996 at 10.30 A.M. He found five injuries on the body. He also noticed on internal examination that there was a skull fracture from right t emporal to left temporal region and dark brown contusion over lower part of left side of neck. The post-mortem certificate is Ex.P22. After getting the Chemical Examiner's report, he gave final opinion Ex.P24 that the death was due to cumulative effect of head injury and strangulation of neck. (h) P.W.21, the Inspector of Police continued the investigation and took steps to apprehend the culprit. On 7.10.1996 at about 9.30 A.M., P.W.21 arrested the accused near Bharathi Street at Pondicherry. Then, he was brought to the police station where a confession statement was recorded in the presence of P.W.10 Arumugham. Ex.P9 is the admissible portion of the confession. (i) In pursuance of the confession, the accused took the police party to his house at about 12.45 P.M. and pointed out rice pounder (M.O.38), the weapon of offence and his clothes (M.Os.39 to 41) and the same were recovered. Then, the accused took out a Rexene bag (M.O.42) from a bush next to his house. From the bag, M.Os.3,5 to 14, 48 to 50, the jewels belonged to the deceased were recovered. Along with that, M.O.51, the cheque book containing leaves also was recovered. This recovery was effected at 3.30 P.M. (j) Then, the accused took the police party to the well where the body was thrown after committing murder. The arrangements were made to pump out the water from the well. After the water was drained out fully, it was found inside the well a yellow meta l Thali (Mangalyasuthra)-M.O.4, Ammi-M.O.43 and blue colour saree-M.O.44 and the same were recovered. (k) At about 6.30 P.M., the accused took the police party to his friends' room at Dharmapuri at Pondicherry. His friends P.W.14 Kumar and P.W.15 Unnikrishnan were available in the room. The accused went inside the kitchen room and took out the bloodst ained shirt-M.O.45 and bloodstained dhoti-M.O.46 and handed over the same to the police stating that these clothes were worn by him at the time of occurrence. P.W.14 Kumar identified M.Os.39 and 40, which+ were recovered from the accused in his house be longed to P.W.14 stating that the same were given by him on 30.9.1996 night to the accused, since the accused told him that his clothes got stained with blood as he met with an accident. P.W.15 handed over Ex.P19 pawn receipt to the police stating that the same was handed over to him by one Chandrasekar, who was in charge of the Shoe Company under whom P.W.14, P.W.15 and the accused were working. This was at 7.00 P.M. (l) Thereafter, the accused took the police party at about 7.40 P.M. to P.W.13 Mahaveer Chand Jain stating that he pledged a ring belonged to the deceased with him. Then, P.W.13 was interrogated. He stated that the gold ring M.O.15 was pledged by the a ccused and handed over the same to P.W.21. The same was recovered under mahazar Ex.P17. Along with that, Ex.P20 pawn receipt was also shown to the police which contained the signature of the accused. Ex.P20 is the carbon copy of Ex.P19. (m) Then, the accused was brought back to the police station. The accused was then wearing the sandal colour shirt M.O.52 and the same was also recovered. Then, the fingerprints of the accused were taken by P.W.21 at the police station and the same were handed over to P.W.20 Finger Print Expert. In the meantime, the jewels recovered were shown to P.W.4 Clamanthin, the family friend of the deceased and they were identified as that of the deceased. P.W.12 Goldsmith also identified some of the jewels sta ting that he only made those jewels and handed over the same to the deceased. (n) After comparison, P.W.20 Finger Print Expert gave certificate Ex.P45 giving opinion that the finger prints of the accused tallied with the finger print of carton box M.O.18 recovered from the scene of occurrence. (o) P.W.22 another Inspector of Police, who took up further investigation, examined other witnesses and filed the charge sheet against the accused for the offences under Sections 302, 449, 404 and 201 I.P.C. (p) During the course of trial, P.Ws.1 to 22 were examined, Exs.P1 to P56 were filed and M.Os.1 to 52 were marked. (q) When the accused was questioned under Section 313 Cr.P.C. with regard to the incriminating materials, he denied having committed the offences. No witness was examined on the side of defence, but Exs.D1 to D3 were marked to show that the F.I.R., ch was sent at 2.30 P.M. from the police station on 3.10.1996, was received by the Magistrate only at 10.30 P.M. (r) Considering the materials available on record, the trial Court ultimately found the accused guilty of the offences for which he was tried and convicted and sentenced him thereunder. Hence, this appeal." 4. Mr. A. Ramesh, the learned counsel appearing for the appellant/accused would make the following contentions: "The confession Ex.P9 is not a valid and voluntary one. This is evident from the fact that the signature of the accused has not been obtained in the said confession. Furthermore, the admissible portion of confession, Ex.P9 would not show the speci details of the places from where the various articles have been recovered. Therefore, the statement cannot be said to be the informative statement and as such, the discovery in the absence of the informative statement, makes the confession statement inv alid and unreliable. According to P.W.10, the mahazar witness, the accused was not present when the articles were recovered at the respective places and at that time, he was sitting in the police van. As such, his evidence contradicts the evidence of P. W.14 and P.W.21. P.W.21 Inspector of Police had admitted that the accused was arrested on suspicion. At the time of making the confession, the accused was not in the custody of police in this case. Hence, the recoveries made based on this confession ar e bad in law. The weapon rice pounder was not sent for finding out the finger print. Specimen finger print of the accused was not taken in the presence of Magistrate. Though the signature of the accused was found in Ex.P20, the carbon copy of pawn r eceipt, no such signature was found in Ex.P19, the original. There is no blood found on the rice pounder, the weapon of offence. These infirmities would indicate that there are several missing links in the circumstances projected by the prosecution. Hence, the appellant is entitled to be acquitted." 5. In reply to the above submissions, the learned Additional Public Prosecutor for Pondicherry would contend that the various pieces of the circumstantial evidence placed before the trial Court are sufficient to hold that the accused alone committed offence of murder for gain, that the various points with reference to the arrest, confession and recovery as contemplated under Section 27 of the Evidence Act have been clearly answered in the various decisions of this Court as well as the Supreme Court and that therefore, there is no merit in the appeal and consequently, the same is liable to be dismissed. 6. The counsel for both the parties would cite several authorities to substantiate their respective contentions. 7. As directed by this Court, both the counsel filed written submissions. 8. We have carefully examined the inherent merits of the rival contentions and gone through the records. 9. This is a case of brutal murder for gain. According to the prosecution, when the deceased Fortune Amalore was residing alone in her house, the accused trespassed into her house on 30.9.1996 night and hit her with rice pounder on the head and com sed her throat with his leg and caused her death. Thereafter, he threw the dead body into the well at the backyard of the house and closed the well by putting the tin sheet. Then, he took away her jewels and sped away. 10. It is the further case of prosecution that on 7.10.1996, the accused was arrested by P.W.21, the Inspector of Police and the jewels as well as the weapon of offence and bloodstained clothes of the accused were recovered. 11. Admittedly, there is no direct evidence. The entire case rests upon the circumstantial evidence. As laid down by the Supreme Court, the following guidelines have to be kept in mind, while appreciating the evidence on record in the case of circ antial evidence: (1) The circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (2) Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. (3) The circumstances, taken cumulative, should form a chain so complete so that there is no escape from the conclusion that within all human probability the crime was committed by the accused alone and none else. (4) The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of t should be inconsistent with his innocence. 12. In the light of the above principles, the materials available on record through various circumstances have to be analysed. Before such analysis, let us catalogue the various circumstances projected by the prosecution: (A) The deceased was not found in her house from 1.10.1996. Lawrence, the husband of P.W.2 Lucia,the tenant wanted to vacate the house and hand over the key to the deceased landlady. P.W.5 milk vendor kept the milk in the kitchen through the back door on 1.10.1996 early morning. The same was not used till 3.10.1996. P.W.1 Kannadasan found the dead body of the deceased inside the well on 3.10.1996. P.W.16 Doctor who conducted post-mortem gave opinion Ex.P24 on 6.10.1996 that she died due to the inju ries on the head and neck three to four days prior to the post-mortem. (B) On 30.9.1996, the accused after committing murder went to his friends'(P.Ws.14 and 15) room at Dharmapuri at Pondicherry and stayed there in that night. He left his bloodstained clothes M.Os.45 and 46 in the kitchen and got the new clothes M.Os.39 an d 40 from P.W.14. (C) On 2.10.1996, the accused pledged one of the jewels, namely M.O.15 gold ring to P.W.13 Pawn Broker and obtained receipt Ex.P19 which was handed over to one Chandrasekar, who was in charge of the Company, who in turn, gave it to P.W.15, the friend of the accused from whom, the same was recovered. (D) On 3.10.1996, on the complaint of P.W.1, P.W.19 Sub Inspector of Police registered the case for murder. P.W.21, the Inspector of Police went to the scene and recovered ever silver bowl, water bottle and carton box (M.Os.16 to 18) at the spot suspecti ng to contain the fingerprint of the culprit. The finger print contained in M.O.18 were found tallied with that of the accused as per Ex.P45 certificate of P.W.20, the Finger Print Expert. (E) On 7.10.1996, the accused was arrested and on his confession, the weapon of offence, namely rice pounder M.O.38 and other things M.O.39 lungi, M.O.40 shirt, M.O.41 half hand shirt and M.O.47 pant were recovered from the house of the accused under mahazar Ex.P11 and a Rexene bag M.O.42 containing jewels M.O.3 Attigai, M.O.5 bangle, M.O.6 bangle, M.O.7 nose screw, M.O.8 ring, M.O.9 ring, M.O.10 ring, M.O.11 ear stud, M.O.12 Tubs, M.O.13 nose screw, M.O.14 kumkum cup, M.O.49 chain and M.O.50 Bangle s was taken out from a nearby bush and handed over by the accused to P.W.21. The jewels were identified by P.W.4 and P.W.12 as the jewels of the deceased. (F) The accused took the police party to the well from where Mangalyasuthra M.O.4, Ammi M.O.43 and saree M.O.44 were recovered under mahazar Ex.P50. (G) The police party was then taken to the room where P.Ws.14 and 15, the friends and co-workers of the accused were staying and from there, the bloodstained clothes M.Os.45 and 46 belonging to the accused were taken out from the kitchen and handed over to the police by the accused. (H) The accused took the police party to P.W.13 Pawn Broker from whom M.O.15 ring was recovered and Ex.P20, the carbon copy of Ex.P19 was shown containing the signature of the accused. (I) The group of the blood found in the bloodstained dhoti M.O.46 worn by the accused tallied with the group of the blood found in the broken Beer bottle M.O.19 collected from the scene of occurrence. 13. Let us now analyse the circumstances projected by the prosecution. The first circumstance, which is to be established by the prosecution, is that Fortune Amalore, the deceased was murdered on the date of occurrence i.e. on 30.9.1996. She was living alone in the ground floor of the house. P.W.2's husband Lawrence was the tenant in the upstair portion. P.W.5 milk vendor had seen the deceased on 30.9.1996 early morning when he supplied the milk. On that day at 7.00 P.M., the deceased took food in the house of her friend P.W.4 Clamanthin and came back home. P.W.1 Kannadasan also had seen the deceased in the night of 30.9.1996. Subsequently, she was not found. 14. On 1.10.1996, P.W.5 came and left the milk in the kitchen through the back door. When he came on 2.10.1996 for supplying milk, he found that the milk kept in the kitchen on 1.0.1996 was not used. The landlady was not found inside. Therefore, P.W. 5 informed this to P.W.2 Lucia, the wife of the tenant. P.W.2 informed him that she would have gone to her friend's house. On 3.10.1996, the milk vendor again came and found the milk kept on 1.10.1996 unused and spoiled. This was informed to the tenan t, the husband of P.W.2. 15. P.W.2's husband also wanted to vacate the premises and hand over the key to the landlady. As she was not available, he enquired about the whereabouts of the landlady with P.W.1 Kannadasan, residing in the same street, who often used to come to meet the deceased for doing sundry works. P.W.1 also enquired at her friends' houses. As she was not available there, he came and informed P.W.2. Then, P.Ws.1 and 2 went to the backyard of the house through the lane. They smelt a foul smell emanating from the well. The well was covered with an iron sheet. Then, P.W.1 removed the iron sheet and on seeing inside the well, he cried stating that the dead body of the landlady was found floating in the well. Then, he gave a complaint Ex.P1 to P.W.19 Sub Inspe ctor of Police. 16. P.W.21, the Inspector of Police came to the spot and took out the dead body from the well and held inquest. He found the injuries on the head and other parts of the body. From inside the house, P.W.21 recovered bloodstained broken Beer bottle, gla ss pieces, etc. (M.Os.19 to 24). He sent the body for post-mortem. 17. P.W.16, the Doctor conducted post-mortem on 6.10.1996 and issued Ex.P22 post-mortem certificate and gave final opinion Ex.P24 that the death of the deceased was due to cumulative effect of head injury and strangulation of neck. He also stated that t he approximate time of death of the deceased was about 3 to 5 days prior to post-mortem probablising the death of the deceased on 30.9.1996. 18. It was detected that human blood of 'O' group was found on the broken portion of the Beer bottle M.O.19 recovered from the scene of occurrence. 19. The above factors would clearly establish that the deceased was done to death only on 30.9.1996 night and body was recovered on 3.10.1996 on the complaint of P.W.1, who is none other than the brother of the accused. At the initial stage of the invest igation, nobody suspected the involvement of the accused in the murder. 20. Let us now deal with the other circumstances. 21. The accused was arrested on 7.10.1996 at 9.30 A.M. near Bharathi Street by P.W.21. He was taken to the police station where he gave a statement confessing the crime stating that he committed the murder and took away the jewels of the deceased. In pu rsuance of his confession Ex.P9, P.W.21 and others along with P.W.10 were taken to the house of the accused. From there, at about 12.45 P.M., as pointed out by the accused, P.W.21 recovered rice pounder, the weapon of offence M.O.38, lungi M.O.39, shirt s M.Os.40 and 41 and pant M.O.47 under Ex.P11 mahazar. Then, the accused took the police party to a bush next to his house and took out a Rexene bag M.O.42 from the bush. From the said bag, the jewels of the deceased M.Os.3,5 to 14, 49 and 50 and the cheque book containing leaves M.O.51 were recovered under mahazar Ex.P49 attested by P.W.10. 22. At about 4.00 P.M., the police party was taken by the accused to the well where he threw the dead body. After entire water was drained out from the well, the police party was able to find out Mangalyasuthra M.O.4, Ammi M.O.43 and blue colour saree M .O.44, which were recovered under mahazar Ex.P50. 23. Then, the accused took them to Dharmapuri at Pondicherry where his friends reside. He went inside the kitchen of the house and took out the bloodstained shirt M.O.45 and bloodstained dhoti M.O.46, worn by the accused at the time of occurrence and ha nded over the same to P.W.21 and the same were recovered under mahazar Ex.P52. This recovery was at 7.00 P.M. 24. According to the friends P.W.14 and P.W.15, the accused with bloodstained shirt M.O.45 and dhoti M.O.46 came to the room on 30.9.1996 at 12 mid night and informed them that he met with an accident and that was how his clothes got stained with blood a nd then, the accused was given new clothes by P.W.14. Those clothes were identified by P.W.14 as M.O.39 lungi and M.O.40 full-hand shirt which were earlier recovered from the house of the accused. 25. During that time, P.W.15 another friend of the accused handed over Ex.P19, the original pawn receipt which would show that a gold ring was pledged by the accused in a pawn broker shop on 2.10.1996. According to P.W.15, one Chandrasekar, who was in c harge of the Company where P.W.14, P.W.15 and the accused were working, handed over the same to him. This was also recovered by P.W.21. P.W.15 would further state that from 1.10.1996 onwards, he did not see the accused and on 4.10.1996, the accused phon ed up to the Company stating that he was in Tirupati. 26. At about 7.40 P.M., the accused took the police party and showed the Pawn Broker Shop where he pledged the gold ring. P.W.13 is the Pawn Broker. P.W.13 told the police that the accused came on 2.10.1996 and pledged gold ring M.O.15 with him. He furt her identified Ex.P19 as the original pawn receipt issued by him. M.O.15 was recovered from P.W.13 by P.W.21 under mahazar Ex.P53. Ex.P20 is the carbon copy of Ex.P19. This Ex.P20 contained the signature of the accused. 27. After recovery of all these jewels and other articles, the accused was brought to the police station. P.W.4 Mrs.Clamatin, the family friend of the deceased identified all the jewels as that of the deceased. P.W.12 Goldsmith also identified some of th e said jewels stating that the