IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26-11-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.396 of 2009 1.Bala @ Balakrishnan 2.Sarasu @ Saraswathi .. Appellants vs State by Inspector of Police Thudialur Post Coimbatore District (Crime No.496/2007) .. Respondent Criminal appeal preferred under Sec.374(2) of the Code o Criminal Procedure against the judgment of the Additional District an Sessions Judge, FTC-3, Coimbatore, made in S.C.No.83/2008 date 23.6.2008. For Appellants : Mr.S.Samuel Raja Pandian For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Additional Session Division, Fast Track Court No.III, Coimbatore, made in S.C.No.83 o 2008 whereby the appellants two in number, stood charged, tried an found guilty as follows: ACCUSED CHARGES FINDING PUNISHMENT A-1 & A-2 120(B) IPC Not guilty Acquitted A-1 A-2 449 IPC 449 r/w 109 IPC Guilty Guilty Life imprisonment Life imprisonment A-1 & A-2 302 r/w 34 IPC Guilty Life imprisonment https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-1 & A-2 396 r/w 34 IPC Guilty Life imprisonment 2.Short facts necessary for the disposal of this appeal can b stated as follows: (a) P.W.1 and his wife the deceased Padmavathi were living a Ganesh Nagar Extension within the jurisdiction of the responden police. P.W.1 used to leave for his work at about 8.00 A.M. and t return by 2.00 P.M. P.Ws.3, 7 and 8 were all neighbours. Th deceased was suffering from knee pain. Just 10 days prior to th occurrence, A-2, the wife of A-1, was employed to assist the deceased Her duty was to come to the house of P.W.1 every day at 8.00 A.M., d work and leave by 2.00 P.M. From day one onwards, A-1 used to leav the child in P.W.1's house and thereafter at about 2.00 P.M. he use to come and take A-2 from the house of P.W.1. (b) On the date of occurrence namely 7.7.2007, P.W.1 came to th house, and after taking lunch, he left by 1.15 P.M. The same wa witnessed by P.Ws.3, 7 and 8. P.W.9 was playing cricket near th house of his grandmother. The house of the accused was situate nearby. At about 1.15 P.M., A-1 on request, got the cycle of P.W.9 marked as M.O.7, and went to the house of the deceased. When he wen inside the house, the same was witnessed by P.Ws.3, 7 and 8. After A 1 got inside, along with A-2 he has committed the murder and robbe all the jewels from the deceased which were worn by her. When the were moving from the house, it was A-2 who was just going in front and she was followed by A-1 with the knife. In the meanwhile, P.W. phoned over to his house to enquire about the health of his wife a about 1.45 P.M.; but he could not get the reply, since the phone wa not attended. Immediately, he entertained a suspicion, and along wit P.W.2, he rushed to the house. At that time, he along with P.Ws.3, and 8 witnessed A-1 and A-2 coming out of the house. P.W.1 afte entering into the house, found the body of his wife in a pool o blood, and he noticed that the jewels were also robbed. (c) P.W.1 proceeded to the respondent police station and gav Ex.P1, the complaint, to P.W.16, the Sub Inspector of Police, at abou 4.15 P.M., on the strength of which a case came to be registered i Crime No.496 of 2007 under Sections 302 and 380 of IPC. The expres FIR, Ex.P19, was despatched to the Court. (d) P.W.17, the Inspector of Police of the Circle, on receipt o the copy of the FIR, took up investigation, proceeded to the spot made an inspection and prepared an observation mahazar, Ex.P2, an also a rough sketch, Ex.P20. Then he conducted inquest on the dea body of Padmavathi in the presence of witnesses and panchayatdars an prepared an inquest report, Ex.P21. Thereafter, the dead body wa sent to the Government Hospital along with a requisition for th purpose of autopsy. (e) P.W.12, the Tutor in Forensic Medicine, Coimbatore Medica College Hospital, on receipt of the said requisition, conducte autopsy on the dead body of Padmavathy and noticed 14 stab wounds The Doctor has issued a postmortem certificate, Ex.P12, with he opinion that the deceased would appear to have died of shock an haemorrhage due to multiple stab wounds sustained by her. (f) Pending the investigation, A-2 was arrested on the next da https://hcservices.ecourts.gov.in/hcservices/ i.e., 8.7.2007, at about 1.30 P.M. in the presence of P.W.6, th Village Administrative Officer (VAO). She came forward to give confessional statement voluntarily. The same was recorded. Th admissible part is marked as Ex.P6, following which she produce M.Os.1 and 2, gold chains, M.O.10, bloodstained saree, and M.O.11 bloodstained jacket. They were recovered under a cover of mahazar and she was sent for judicial remand. (g) Pending further investigation, it came to the knowledge o the Investigator that A-1 surrendered before the Judicial Magistrate Dindigul. On a requisition, police custody was ordered, and he wa taken to police custody on 30.7.2007. At the time of interrogation he came forward to give a confessional statement which was recorded i the presence of P.W.11, the VAO. The admissible part is marked a Ex.P8 pursuant to which he produced M.O.3, bangles, M.O.5, gold ring and M.O.6, earring, which were recovered under a cover of Ex.P9 mahazar. He further produced M.O.13, knife, M.O.14, bloodstaine pant, and M.O.15, bloodstained shirt. They were all recovered under cover of mahazar. Then he also took the police party to P.W.13 a Tiruppur, wherefrom M.O.4 bangles, belonging to the deceased wer recovered under a cover of Ex.P10 mahazar. He was sent for judicia remand. (h) All the material objects recovered from the place o occurrence and from the dead body and also the weapon of crim recovered from A-1 pursuant to the confessional statement, were sen for analysis through a requisition made by the Investigator to th concerned Court. Accordingly, they were subjected to analysis by th Forensic Sciences Department which resulted in two reports namel Ex.P16, the chemical analyst's report, and Ex.P17, the serologist' report. On completion of investigation, the Investigating Office filed the final report. 3.The case was committed to Court of Session, and necessar charges were framed. In order to substantiate the charges, th prosecution examined 17 witnesses and also relied on 22 exhibits an 20 material objects. On completion of evidence on the side of th prosecution, the accused were questioned under Sec.313 of Cr.P.C., a to the incriminating circumstances found in the evidence of th prosecution witnesses which they flatly denied as false. No defenc witness was examined. The trial Court heard the arguments advance and took the view that the prosecution has proved its case beyon reasonable doubt and hence found them guilty and awarded th punishment as referred to above, but ordered an order of acquittal i respect of the charge for criminal conspiracy. Under th circumstances, this appeal has arisen before this Court. 4.Advancing the arguments on behalf of the appellants, th learned Counsel would submit that the prosecution had no direc evidence to offer in respect of the crime; that what was all placed b the prosecution before the trial Court was that P.Ws.3, 7 and 8 hav seen P.W.1 coming to and leaving the house at about 1.15 P.M. and the further noticed that A-1 was coming with the cycle and after parkin the cycle, he got inside the house, and after a short while of 1 minutes, P.Ws.3, 7 and 8 found A-2 coming out of the house first an A-1 followed her along with the knife, and this was also witnessed b P.Ws.1 and 2; that the evidence of these witnesses if scrutinize carefully, would clearly indicate that there are lot of discrepancie https://hcservices.ecourts.gov.in/hcservices/ in the material particulars; that as far as A-2 was concerned, it wa claimed by P.W.6, the VAO, that she was arrested in his presence o the next day at about 1.15 P.M. and she came forward to give confessional statement, and the admissible part of the allege confessional statement is Ex.P6; that this part of the evidence canno but be false in the face of the evidence of P.W.1, according to whom A-2 was found in the police station at about 8.00 A.M. on the next da i.e., 8.7.2007; that if the evidence of P.W.1 is correct, then ther could not have been arrest of A-2 at all or confession as put forth b the prosecution; and that if the arrest and confession are no acceptable by the Court, then the consequent recovery must also fail. 5.Added further the learned Counsel that as far as A-2 wa concerned, during the time, she was actually under employment; tha the working hours was from 8.00 A.M. to 2.00 P.M.; that th occurrence, according to the prosecution, has taken place between 1.1 P.M. and 1.40 P.M.; that if to be so, she was actually there, but o permission to do work, and thus it cannot be stated to be a crimina trespass; that there is nothing to indicate that she has got knowledg that her husband would come over there for a particular purpose o committing the crime; and that there is also nothing to indicate tha she shared the intention what her husband had. 6.Added further the learned Counsel that in the instant case, a far as A-2 was concerned, the prosecution has miserably failed t place any acceptable evidence; that the evidence placed are al nothing but imaginary; that when P.W.1 came to the house, he found th dead body; that it was only his surmise that A-2 along with he husband could have done; that P.Ws.3, 7 and 8 were all neighbours that they were all taken into service in order to speak th prosecution case; that under the circumstances, the prosecution ha miserably failed to prove its case, and hence they are entitled fo acquittal in the hands of this Court since the trial Court has take an erroneous view. 7.This Court heard the learned Additional Public Prosecutor o all the above contentions and paid its anxious consideration on th submissions made. 8.It is not in controversy that in an incident that had take place between 1.30 P.M. and 1.40 P.M. on 7.7.2007, the wife of P.W. by name Padmavathi, was done to death. Following the inquest made b the Investigator, P.W.17, the dead body was subjected to postmortem b P.W.12, the Medical Person, who has given his opinion categoricall before the trail Court as a witness and also through the contents o the postmortem certificate that she died out of shock and haemorrhag due to the multiple stab injuries sustained by her. A perusal of th postmortem certificate would indicate that number of stab injuries ar found on the dead body. Thus, the prosecution has clearly establishe the fact that she died out of homicidal violence, and the trial Cour was perfectly correct in recording so. 9.In order to substantiate that A-1 and A-2 have committed th crime of murdering Padmavathy and have robbed the jewels, th prosecution had no direct evidence to offer. Hence, the prosecutio rested its case on the circumstantial evidence. As far as th https://hcservices.ecourts.gov.in/hcservices/ conspiracy theory was concerned, the trial Court has adduced prope reasons not to record so. As far as A-2 was concerned, it is highl doubtful whether the charge under Sec.449 r/w 109 IPC could be brough home for the simple reason that her working hours was between 8.0 A.M. and 2.00 P.M. The occurrence has taken place between 1.30 P.M and 2.00 P.M., and thus it would be quite clear that as a worker A- was inside the house. In such circumstances, there cannot be an criminal trespass for commission of any offence. Hence th prosecution has not proved the charge under Sec.449 IPC against A-2. 10.As far as the occurrence part is concerned, the categorica evidence of P.W.1 was to the effect that at the time when he left fo job in the morning, it was A-2 who was with his wife in the house that at about 1.15 P.M., he came for lunch and had his food; and tha when he started, his wife was in the company of A-2. The evidence o P.W.9 would go to show that he was playing cricket nearby the house o the accused, and it was A-1 on request, got the cycle from him an proceeded telling that he was to take his wife from the place wher she was working. At this juncture, it is pertinent to point out tha P.Ws.3, 7 and 8 have noticed A-1 after parking the cycle, gettin into the house at about 1.30 P.M., and a short while thereafter, the also noticed A-2 coming out of the house in the front followed by A- with the knife. In the meanwhile when P.W.1 put a phone call to hi wife, it was not attended, and hence he rushed to the house along wit P.W.2. At that juncture, P.Ws.1 and 2 happened to see A-2 coming fro inside the house followed by A-1 with the knife. From the evidence it would be quite clear that at the time when the occurrence has take place, only three persons were inside the house namely the deceased A-1 and A-2. 11.Now the contention put forth by the learned Counsel for th appellants that A-2 could not have any knowledge at all or could no have shared the intention of A-1 has got to be rejected for mor reasons than one. At the time when the occurrence has taken place, A 2 was inside the house ,and she was the only person present along wit the deceased. Had it been true that A-1 came inside the house with a intention of committing the offence of robbing the jewels by murderin the deceased, without A-2's presence, knowledge and connivance, i could not have taken place at all. Assuming that A-1 had entered int the house with the knife and he was making the attacks on the decease by placing number of stabs, one would naturally expect A-2 to rais alarm or distressing cry; but, she has not done so. It remains to b stated that the house where the occurrence has taken place was also small one, and when A-2 was with the deceased, naturally without he knowledge and connivance such an occurrence could not have taken plac at all. The circumstance which stands against A-2 was that it was sh who came out first from the house, and she was accompanied by A-1 wit the knife. All would go to show that A-1 and A-2 had shared th common intention in committing the crime of murder and robbing th jewels. 12.The learned Counsel brought to the notice of the Court som discrepancies in the evidence of the prosecution witnesses and woul urge that A-2 could not have been arrested or confession could no have been given by her as put forth by the Investigator. Pointing t the evidence of P.W.1 who has deposed that he saw A-2 in the polic https://hcservices.ecourts.gov.in/hcservices/ station at 8.00 A.M. on 8.7.2007, the learned Counsel would urge tha the claim by the Investigator that she was arrested at about 1.30 P.M on 8.7.2007 cannot be accepted. This Court is unable to agree wit him. It is true that there is a discrepancy in the evidence of P.W.1 But, at the same time, the evidence of the Investigator that she wa arrested at 1.30 P.M. stood fully corroborated by the evidence o P.W.6, the Village Administrative Officer. It is also further to b pointed out that she was brought to the police station the very da i.e., 8.7.2007 itself. Under the circumstances, merely because P.W. has mentioned that he has found her at 8.00 A.M. in the polic station, the same cannot be accepted to disbelieve the evidence of th Investigator which stood fully corroborated by the evidence of P.W.6. 13.Apart from the above, from the evidence, it could be seen tha M.Os.1 and 2 gold chains, both belonging to the deceased, wer recovered from A-1. That apart, M.O.10, bloodstained saree, an M.O.11, bloodstained jacket, were also recovered under a cover o mahazar. Equally when A-1 was taken to police custody, he cam forward to give a confessional statement, which was recorded in th presence of the VAO, P.W.11, and the other jewels belonging to th deceased namely M.Os.3 and 4 bangles, were also recovered. P.W.13, native of Thiruppur, has been examined. According to him, M.O.4 wa pledged by A-1 with him, and during the period, it was also recovere from him and produced before the Court. All these jewels, accordin to the prosecution, were robbed on 7.7.2007. How the jewels M.Os. and 2 were found with A-2 and M.Os.3 and 4 with A-1, they had n explanation to offer. In such circumstances, the presumption woul also follow against them. All would be indicative of the fact tha they had the common intention which was shared, and within a shor span of 15 minutes, they have committed the offence of murder an robbed the jewels from her. Under the circumstances, the trial Cour was perfectly correct in finding both of them guilty as per th charges under Sections 302 r/w 34 and 396 r/w 34 IPC and A-1 unde Sec.449 IPC and in awarding the punishment as referred to above Hence, the judgment of the trial Court in that regard has got to b sustained, and accordingly, it is sustained. 14.As far as the charge under Sec.449 r/w 109 IPC against A-2 i concerned, the conviction and sentence imposed by the trial Court o her are set aside, and she is acquitted of that charge. 15.In the result, this criminal appeal is, accordingly dismissed. nsv Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To: 1.The Prl Sessions Judge, Coimbatore. 2.The Additional District and Sessions Judge FTC-III, Coimbatore. 3.The Judicial Magistrate No.I, Coimbatore. 4.Do Through the Chief Judicial Magistrate, Coimbatore. 5.The District Collector, Coimbatore. 6.The Director General of Police, Mylapore, Chennai 4 7.The Superintendent, Central Prison, Coimbatore. 8.The Inspector of Police Thudialur Post Coimbatore District 9.The Public Prosecutor High Court, Madras. + 1 cc to Mr.A.Samuvel Pandiyan, Advocate SR No.64074 CRL.A.No.396 of 2009 MBS(CO) SR/11.12.2009 https://hcservices.ecourts.gov.in/hcservices/