IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.07.2007 CORAM THE HON'BLE MR.JUSTICE R.BALASUBRAMANIAN and THE HON'BLE MR.JUSTICE S.K.KRISHNAN R.T. No.2 of 2007 AND Crl. APP. Nos.433, 438 and 440 of 2007 Loganathan ..Appellant in C.A.433/2007 S.Kumar @ Raghuman @ Abdul Rahman ..Appellant in C.A.438/2007 Sankar @ Sankaranarayanan ..Appellant in C.A.440/2007 Vs. State represented by The Asst. Commissioner of Police Salem (South) Crime No.2835/2005 ..Respondent in all the appeals Prayer: Criminal appeals against the judgment dated 13.04.2007 passed by the learned Principal Sessions Judge, Salem in S.C.No.200/2006. For Appellants : Mr.B.Sriramulu, SC for Mr.R.Rajendran : Mr.V.Gopinath, SC for Mr.S.Ashok Kumar : Mr.K.S.Dinakaran for Mr.M.Sathya Narayanan For Respondent : Mr.N.R.Elango, APP COMMON JUDGMENT (Judgment of the court was delivered by Justice R.Balasubramanian) Three persons stand sentenced to death. Therefore, on a Statutory reference, the referred trial is before us. Each of the convicted accused has filed a separate appeal privately and those three appeals are also before us. Since the referred trial and the three appeals arise out of one sessions case, we have taken all the above referred to proceedings for a common disposal. Heard Mr.B.Sriramulu, learned senior counsel appearing for the first accused (A1); Mr.K.S.Dinakaran, learned counsel appearing for the second accused (A2); Mr.V.Gopinath, learned senior counsel appearing for the third accused (A3) and Mr.N.R.Elango, learned Additional Public Prosecutor appearing for the State. 2. The prosecution case is that the accused criminally trespassed into the house of the deceased at about 9.00 p.m on 09.11.2005; A3 murdered Mohan Rao, one of the deceased and A1 and A2 abetted the commission of the crime; in the course of the same transaction, all the three accused fatally attacked Prabhu (son of Mohan Rao) and Sheela (wife of Mohan Rao and mother of Prabhu) and decamped with a cash of Rs.22,000/-; jewellery weighing 163.25 sovereigns and silverware weighing 33-1/2 kgs; in the course of the same transaction, they removed the jewels from the person of Sheela and therefore triable under sections 449 read with 34 I.P.C (A1 to A3); 302 I.P.C (A3); 302 read with 114 I.P.C (A1 and A2); 302 read with 34 I.P.C (2 counts) (A1 to A3); 392 read with 397 I.P.C (A1 to A3) and 404 I.P.C (A1 to A3). To prove their case, the prosecution examined P.Ws.1 to 21, besides marking Exs.P.1 to P.40 and M.Os.1 to 76. The defence on their side examined four witnesses as D.Ws.1 to 4 and marked Exs.D.1 to D.16. Admittedly, there are no eye witnesses to the crime. The persons killed in this case are husband, wife and their son. P.W.2 is working as the servant-maid in the house of the deceased since two years prior to the occurrence. Everyday she used to report for duty in their house at 8.30 a.m; complete her work at 10.30 or 11.00 a.m; report for duty again in the evening at about 4.00 p.m and go back to her house between 5.00 and 5.30 p.m. At 8.30 a.m on 10.11.2005, as usual she reported for duty in the house of the deceased. She pressed the calling bell twice but there was no response. Therefore thinking that she can tap the door, she went towards the door and when she put her hand on the door, it opened on it's own. Normally, the door would remain bolted from inside and it would always be opened by removing the bolt from inside. P.W.2 entered the house and noticed that the television was not switched off at all. In the hall, she found Prabhu lying dead with his throat slit. In the adjoining bed room on the left side, Mohan Rao was also found lying dead in a pool of blood. The clothes available in the cup-board were found on him. P.W.2 entered the kitchen, where she found Sheela also lying dead. She noticed that the Mangalsutra and the bangles (M.Os.2 and 1), which will always be on the person of Sheela, were missing. Then P.W.2 rushed to the house of P.W.1, who is the elder brother of Mohan Rao and informed him. P.W.1 went to Mohan Rao's house with P.W.2 and observed the same. Then P.W.1 left to the police station to give a complaint. P.W.2 was examined by the police in the house itself. P.W.2 came to know that the accused were arrested on 15.11.2005 and they were in the police station. Out of anxiety, she also went to the police station, where, she identified M.Os.1 and 2, which were found blood stained. 3. P.W.1 is the elder brother of Mohan Rao. At 9.00 a.m on 10.11.2005, P.W.2 came to his house and informed him about the crime and after making preliminary enquiries with her, P.W.1 rushed to his brother's house along with P.W.2, where, he found his brother, brother's wife and nephew lying dead in different places of the house. He also observed that on the dead body of Mohan Rao, the clothes from the cup board were found strewn. He also noticed that Mangalsutra and bangles, which Sheela used to wear normally, were not on her person. He observed the whole house in a disarrray with various articles spread hither and thither. He found the cup-boards open. Immediately P.W.1 went to the police station, where, he lodged the complaint, which is Ex.P.1. P.W.1 was examined in his brother's house itself by the police. At 6.00 p.m on 15.11.2005, he came to know that the accused have been arrested and therefore he went to the police station, where, he saw A1 and A2. He identified M.Os.1 and 2 in the police station. He also identified M.Os.3 to 7 as the jewels of his sister-in-law (Sheela). Sheela used to wear M.Os.3 to 7 on her person on any festival day or even when she used to visit the house of P.W.1 and therefore he knew the above referred to jewels as that of Sheela. P.W.3 is a driver by profession, who had been working as such with Mohan Rao for about eight years prior to the crime. Mohan Rao is doing business in selling silver anklets. Mohan Rao had his business activities in Cuddapah (State of Andhra Pradesh) and Mehaboob Nagar in Hyderabad. Whenever Mohan Rao used to go outside the State for his business purposes, P.W.3 used to accompany him. On some occasions when Mohan Rao carries a huge quantity of goods for sale, another person by name Mani also used to accompany him. On 06.11.2005, in the car driven by P.W.3, Mohan Rao, Sheela and Prabhu went to Tirupathi where, they stayed for about two days. At Tirupathi, Mohan Rao and Prabhu tonsured their heads and they returned to Salem at 9.30 p.m on 08.11.2005. On 09.11.2005, Mohan Rao left his house to attend to his usual business and returned home at 12.00 noon. Mohan Rao informed P.W.3 at that time that he is expecting silver anklets weighing 32 kgs given to P.W.13 for polishing any time in the evening; with that he (Mohan Rao) had to go to Hyderabad and therefore asked P.W.3 to telephone to him in the evening. Accordingly at 6.00 p.m on that evening, P.W.3 telephoned to Mohan Rao, who stated that he had already got the silver anklets referred to earlier and that he (Mohan Rao) is likely to leave for Hyderabad on the next day morning. Normally, at 10.00 a.m everyday, P.W.3 used to report for duty in Mohan Rao's house and accordingly at 10.00 a.m on 10.11.2005, he reported for duty, where he found a huge crowd and police. On verification, he came to know that Mohan Rao, his wife and son had been murdered. P.W.3 entered the house to find the horror. He also noticed that M.Os.1 and 2, which Sheela normally used to wear everyday on her person, were missing. Coming to know that the accused have been arrested on 15.11.2005, he went to the police station, where, he found A1 and A2 as well as M.Os.1 and 2 (blood stained). He also found silver anklets in twelve packets weighing 32.170 kgs kept in a zip bag. M.O.8 series are the silver anklets, which he saw in the police station. He also identified M.Os.3 to 7 in the police station, which Sheela used to wear on her person on any festival day. P.W.3 was examined by the police on 15.11.2005. 4. P.W.20 is the Sub-Inspector of Police before whom, at 10.00 a.m on 10.11.2005, P.W.1 appeared and gave a written complaint, which he registered as Ex.P.1 in his police station Crime No.2835/2005 under sections 302 and 392 I.P.C. Ex.P.36 is the printed first information report. He sent the express records to the court as well as to the higher officials. He sent a copy of the express records to the Assistant Commissioner of Police also. He was examined by the Assistant Commissioner of Police. P.W.21 is the Assistant Commissioner of Police (Investigating Officer). At about 10.05 a.m on 10.11.2005, he received information over telephone about this crime from P.W.20. Accordingly he reached the crime scene where, he collected the copies of the express records. Then he commenced the investigation pursuant to the orders of his higher ups. At 10.45 a.m on that morning, in the presence of P.W.14 and another, he prepared Ex.P.10, the observation mahazar and Ex.P.37, the rough sketch. He requisitioned the services of the finger print experts to the crime scene as well as the dog squad. Then he caused the crime scene and the dead bodies to be photographed. P.W.18 is the police Photographer, who photographed the dead bodies and the crime scene from different angles. Exs.P.27 and P.28 series are the photographs and negatives. At 12.30 p.m on that morning, he conducted inquest over the dead body of Prabhu in the presence of witnesses and prepared Ex.P.38, the inquest report. Between 2.00 p.m and 3.00 p.m on 10.11.2005, P.W.21 conducted inquest over the dead body of Mohan Rao in the presence of panchayatdars and witnesses. Ex.P.39 is the inquest report. Between 3.00 p.m and 4.00 p.m on that day, he conducted inquest over the dead body of Sheela in the presence of panchayatdars and witnesses and prepared Ex.P.40, the inquest report. At 4.15 p.m on that evening, P.W.21 recovered M.O.24 (blood stained plastic mat) found close to the dead body of Prabhu; blood stained mosaic tile (M.O.28) and sample mosaic tile (M.O.29) under Ex.P.11 (recovery mahazar). Under Ex.P.11, M.Os.25 and 26 also came to be recovered while under Ex.P.12, M.O.27 came to be recovered. M.O.27 is the blood stained blue colour bed cover found close to the dead body of Mohan Rao. At 5.30 p.m on that evening, he recovered from the crime scene M.O.30 (blood stained nighty - a woman's wear) and a blood stained knife (M.O.1) found on top of it under Ex.P.13 attested by witnesses. Under Ex.P.14 (recovery mahazar), P.W.21 recovered M.O.32 (blood stained mosaic tile); M.O.33 (sample mosaic tile); M.O.34 (blood stained twin coloured button namely, grey colour and black colour and M.O.35, another twin coloured button, from beneath the dead body of Sheela. Then P.W.21 sent each of the dead bodies through a separate police constable to the hospital with separate requisition for post mortem. 5. P.W.9 is the police constable, who accompanied the dead body of Sheela along with Ex.P.5/requisition to the hospital for post mortem. After post mortem, he removed M.Os.10 to 13 from the dead body and handed over the same to the Investigating Officer. Then he gave the dead body to the relatives. P.W.10 is another constable, who accompanied the dead body of Mohan Rao along with Ex.P.7/requisition to the hospital. After post mortem, he removed M.Os.14 to 17 from the dead body and handed over the same to the Investigating Officer and the dead body to the relatives. P.W.11 is the last of the three constables, who accompanied the dead body of Prabhu along with Ex.P.3 (requisition) to the hospital. After post mortem, he removed M.Os.18 to 20 from the dead body and handed over the same to the Investigating Officer. P.W.6 is the Doctor, who conducted post mortem on the dead body of Prabhu on receipt of the requisition (Ex.P.3) at about 4.40 p.m on 10.11.2005. During post mortem, he found various symptoms as noted by him in Ex.P.4, the post mortem report. Injuries: 1)Oblique cut injury on left side neck to mandible 8 cm x 5 cm x 4 cm bone deep with cut fracture left side of mandible. All the major vessels and nerves and neck muscles severed. 2)Oblique cut injury present and extends from left side of neck to front of neck 19 cm x 7 cm x 7 cm. 3)Cut injury of trachea and thyroid cartilage. 4)Cut fracture of C vertebra. 5)Oblique cut injury right side of mandible 7 x 3 x bone deep. 6)Cut fracture right side of mandible. 7)Multiple stab injuries right side of neck. 4 cm x 1.5 cm x 5 cm 3 cm x 1 x 5 cm 2 x 1 x 4 cm 2 x 1 x 5 cm 8)Oblique cut injury present over back of the neck 8 cm x 3 x bone deep. 9)Another cut injury present 9 cm x 2 x 6 cms on the back of the neck. 10)Oblique cut injury present on right side of the neck 5 cm x 2 x 5. 11)Cut fracture and dislocation of right wrist joint. 12)Multiple cut injury on right hand (palmar aspect) 10 cm x 3 cm x bone eep, 3 cm x 2 cm x tendons, muscles severed, 3 cm x 2 cm x 1.5 cm. 13)Cut fracture of right middle finger, ring finger, index finger at the meta carpo phalangeal joint level. 14)Oblique cut injury right forearm 6 cm x 3 cm x bone deep. All the above injuries are antemortem and having sharp margins and gaping in nature. Heart: Normal, cavities empty, coronary vessels  patent. Great vessels  Normal. Lungs, Liver, Spleen, Brain, Kidneys  On c/s. - Pale. Stomach: Contained 150 gms undigested cooked rice and no specific smell. Mucosa  Pale. Small intestine: Yellowish chyme. No specific smell. Bladder: Empty. Both pelvis intact." Doctor opined that death would have occurred 20 hours prior to post mortem as a result of shock and haemorrhage due to multiple stab and cut injuries. Injuries 1 to 6 and 8 to 14 found on the dead body are grievous injuries and they could have been caused by the use of aruval while injury No.7 could have been caused by the use of a knife. Death would have been instantaneous. P.W.7 is the other Doctor, who did post mortem, on receipt of Ex.P.5, on the dead body of Sheela on 10.11.2005. During post mortem, she found various symptoms as noted by her in Ex.P.6 (post mortem report). "Injuries: 1)Abrasions (a) superficial abrasion left forearm 2 in numbers each of 3 cms radius. (b)Left palm 0.5 x 0.25 cms 2 in Nos. (c ) Linear abrasion left forearm 14 cms in length at lift scapular region 2 x 1 cms. 2)Oblique cut injury present over front of neck to upper middle chest 14 x 8 x 5 cms with 3 cut injury over the trachea. Both side carotid vessels, nerves and muscles of neck found cut. 3)Oblique cut injury present over the chin 9 x 1 x 3 cms with cut fracture of mandible. 4)Oblique cut injury present over left thumb 1 x 0.5 cms bone deep. 5)Stab injury present over left side chest wall 3 x 2 x 2 cms. 6)Stab injury present over right upper abdomen 1 cm below right costal margin 2 x 1 x 1 cm. 7)Stab injury present over lower part of left arm 9 x 2 cms bone deep. 8)Comminuted fracture of left clavicle. (All the above injuries are having sharp margins and are gaping in nature). Antemortem. Heart: Chambers and valves normal. Cavities empty. Coronary vessels: Patent. Great vessels: Normal. Lungs  Both on C/s. Pale. Hyoid bone was found intact. Stomach: 200 gms of undigested cooked rice food. No specific smell. Mucosa  Pale. Small intestine: Yellowish chyme. No specific smell. Mucosa  Pale. Liver, Spleen and Kidneys: All are c/s  Pale. Bladder: Empty. Uterus: Normal in size. Cavity empty. Genetalia: Normal. Hymen: No injuries. Pelvis, Membrane and Spinal column  all are intact. Brain: C/s. Pale". Doctor opined that death would have occurred 20 hours prior to autopsy as a result of shock and haemorrhage due to multiple cut and stab injuries. The death is instantaneous. Injuries 2, 3 and 4 are cut injuries while injury Nos.5 to 7 are stab injuries. P.W.8 is the last of the three Doctors, who conducted autopsy, on receipt of Ex.P.7, on the dead body of Mohan Rao at about 4.55 p.m on 10.11.2005. During post mortem, she found various symptoms as noted by her in Ex.P.8, the post mortem report. "Injuries: 1)Oblique multiple cut injury present over right palmar aspect 9 x 3 x 2 cms, 10 x 2 x 2 cms, 3 x 2 x 2 cms bone deep, 2 x 2 x 2 cms bone deep with cut fracture of right thumb finger, index finger and middle finger each 2 x 1 cms with almost separated except for a tag of skin cut fracture of phalanges, meta carpel, carpal bones present. Fracture and dislocation of right wrist joint. 2)Multiple superficial cut injury on right deltoid 10 x 0.5 cms and 8 x 0.5 cms, 7 x 0.5 cms, 8 x 0.5 cms with surrounding contusion 7 x 7 cms dark red. 3)Oblique incised cut injuries present over (a) right side neck 10 x 2 x 4 cms. (b) left side neck 8 x 2 x 6 cms. All the structure blood vessels, nerves, muscle are cut. 4)Oblique cut injury on left scapular region to left side neck 13 x 8 x 6 cms bone deep with cut fracture of left scapular bone and 8 x 3 cms cavity deep. 5)Incised cut injury on occipital region of scalp 16 x 1 x 1 cms bone deep. 6)Oblique cut injury on left mastoid process to back of neck 16 x 3 cms bone deep and incised cut injury on 16 x 1 cms bone deep. 7)Oblique cut injury on left side neck to right mastoid 18 x 6 cms cavity deep with cut fracture of C vertebrae on spinal cord. 8)Stab injury on left shoulder, 4 x 1 x 5 cm, 1 x 1 x 1 cm and 2 x 1 cm cavity deep. 9)Oblique cut injury on root of nose 1 x 0.5 x 1 cms. 10)Abrasion  Left shoulder 2 x 1 cm. All the above injuries are having sharp margin, gaping in nature (Antemortem). Heart: Chambers and valves  Normal. Cavities: Empty. Coronary Vessels: Patent. Great Vessels: Normal. Lungs: Both on C/s.Pale. Hyoid bone: Intact. Stomach: 300 gms of partly undigested cooked rice food. No specific smell. Mucosa: Pale. Small Intestine: Yellowish chyme. No specific smell. Mucosa: Pale. Liver, Spleen and Kidneys: All are C/s. Pale. Bladder: Empty. Pelvis, membranes  Both intact. Brain: C/s. Pale." Doctor opined that death would have occurred 20 hours prior to autopsy as a result of shock and haemorrhage due to multiple cut and stab injuries. The death would have been instantaneous. Injuries 1 to 7 are cut injuries. 6. P.W.21 was continuing his investigation by examining witnesses and at 8.30 p.m on 10.11.2005, he recovered the articles removed from the dead body of all the three deceased and handed over to him by P.Ws.9, 10 and 11 under Form 95. During inquests done by P.W.21, he examined P.Ws.1, 2, 3 and others by recording their statements. His primary investigation revealed that business people dealing in silverware and living in Shevapet would always keep their residential houses bolted from inside and they will not allow any strangers to come inside the house. His investigation also revealed that the suspects have entered the house through the front door without making any hole in any part of the wall in the house. Therefore he prima facie concluded that the suspects could have gained entry into the house using their acquaintance with the family of the deceased. Pursuant to the orders of the higher ups, P.W.21 constituted eight separate police teams to secure the accused. He enquired the police informants, which made him to make local enquiries in Salem Town, Kichipalayam, Guhai and Shevapet. On 11.11.2005, he examined persons living in close proximity to the house of the deceased by recording their statements. Further witnesses were examined on 12.11.2005. There is already an undetected crime on the file of CBCID police in B9 Police Station regarding the triple murder in the house of one Dr.Srinivasan. Therefore P.W.21 discussed the case, which he is investigating, with the police officers concerned in the other crime. On 13.11.2005, P.W.21 examined further witnesses by recording their statements. He advised the special team constituted by him to be in touch with the police informants to get any clue. On 14.11.2005, P.W.21 examined further witnesses by recording their statements. 7. In the early hours of 15.11.2005, P.W.21 was in the course of his investigation to apprehend the accused. At about 6.00 a.m on that morning, an informant gave an information to P.W.21, on the basis of which, P.W.21 contacted P.W.15 (Village Administrative Officer) over telephone and asked him to meet him (P.W.21) in the Railway Station at Sooramangalam. P.W.15 accordingly appeared before P.W.21 along with his colleague by name Rathinavelu near the compound of the railway station. P.W.21, P.W.15 and others were standing near the railway station compound. To them, P.W.21 informed that he (P.W.21), had received information that a suspect had reached the railway station and therefore P.W.15 should stand as a witness for arrest if any to be made. Police informant identified A1, who was standing near the railway ticket issuing counter, to P.W.21 from a distance. Immediately P.W.21 arrested A1 and examined him in the presence of P.W.15 and another. It was 8.30 a.m. A1 voluntarily gave a confession statement, the admissible portion of which is Ex.P.15. The arrested accused was having M.O.39 (yellow colour bag) and from that he produced M.O.36 (gold chain); M.O.37 (two fancy jewels); Ex.P.16 (railway journey ticket from Salem to Chennai) and a sum of Rs.9,580/- (M.O.38), which were all recovered under Ex.P.17. A1 further disclosed that if the police party and the witnesses accompany him to the house, he will give his share of the stolen articles; hand over the blood stained clothes, which he was wearing at the time of commission of the crime and the weapon. Accordingly, the arrested accused took the police party and the witnesses to his house around 11.00 a.m., from where, he produced M.Os.3, 2, 41, 42, 45, 40 series, 4, 43, 44 series, 45, 46, 47, 48, 49, 50, 5, 51, 6, 7 series, 52, 2, 53, 54 series, 8 series and his motor cycle (M.O.9). All the above referred to articles came to be recovered under Ex.P.18 attested by P.W.15 and another. Then the arrested accused took the police party and the witnesses to Thirumanimuthar River Bank and from behind the bush there, he produced M.O.55 (blood stained knife), M.O.56 (blood stained white colour dhoti) and M.O.57 (blood stained white colour half slack), which came to be recovered under Ex.P.19 attested by the same witnesses. Then the arrested accused took the police party and the witnesses to a place called Pon Nagar in Zahir Ammapalayam, where he identified A2. 8. P.W.21 arrested A2 at about 1.45 p.m on that day in the presence of P.W.15 and another and examined him. The arrested second accused also gave a voluntary confession statement at that time, the admissible portion of which is Ex.P.20. The arrested second accused took the police party and the witnesses to his house, from where, he produced M.O.1 (blood stained), M.O.22 series, M.O.58, M.O.59, M.O.60, M.O.61 series, M.O.62 series, M.O.63 series, M.O.65 (blood stained), M.O.66 (blood stained) and a cash of