BAIL SLIP That the Appellant / Accused No.1 namely Namasivayam are directed to be released on bail by the order of this Court dated 30.09.2008 and made in Crl.M.P.1/08 in Crl.App.No.690 of 2007. That the Appellant / Accused No.3 namely Thangaraj are directed to be released on bail by the order of this Court dated 18.07.2007 and in Crl.M.P.No.1 of 2007 in Crl.App.No.553 of 2007 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.10.2009 CORAM THE HONOURABLE MR.JUSTICE C.NAGAPPAN AND THE HONOURABLE MR.JUSTICE M.JEYAPAUL Crl.A.Nos.553 & 690 of 2007 and 101 of 2009 1. Thangaraj Appellant in Crl.A.No.553/07 2. Namasivayam Appellant in Crl.A.No.690/07 3. Kumar Appellant in Crl.A.No.101/09 Vs. State by the Inspector of Police, Perundurai Police Station Erode district. (Crime No.330 of 2005) Respondent in all the three appeals Prayer : Appeals against the Judgment, dated 11.6.2007, passed in S.C.No. 17 of 2006 on the file of the Additional Sessions Judge cum Fast Track Court No.1, Erode. For Appellant in Crl.A.No.553/07:: Mr. A.K.Kumaraswamy For Appellant in Crl.A.No.690/07:: Mr. A. Padmanaban For Appellant in Crl.A.No.101/09:: Mr. Philip Ravindran Jesudoss For Respondent in all the three appeals :: Mr.Hassan Mohamed Jinnah Additional Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ COMMON J U D G M E N T (The Judgment of the Court was made by M. JEYAPAUL, J.) The appellant in Criminal Appeal No.690 of 2007 ranked as A1, the appellant in Criminal Appeal No.101 of 2009 ranked as A2, and the appellant in Criminal Appeal No.553 of 2007 ranked as A3 in Sessions Case No.17 of 2006 on the file of the Additional Sessions Judge cum Fast Track Court No.1, Erode, have preferred these appeals challenging the conviction and sentence imposed on them by judgment dated 11.6.2007. 2. The learned Additional Sessions Judge found A1 to A3 guilty of the charges under Sections 449, 302 and 392 read with section 34 of the Indian Penal Code and convicted and sentenced each of them to undergo ten years rigorous imprisonment for the offence under Section 449 of the Indian Penal Code; convicted and sentenced each of them to undergo life imprisonment for the offence under Section 302 of the Indian Penal Code; and convicted and sentenced each of them to undergo ten years rigorous imprisonment for the offence under Section 392 read with section 34 of the Indian Penal Code and convicted A1 and A2 and sentenced each of them to undergo five years rigorous imprisonment for offence under section 429 of the Indian Penal Code and ordered the sentences to run concurrently. 3. To prove its case, the prosecution examined P.Ws.1 to 15 and marked Exs.P.1 to P.36 and M.Os.1. to 21. 4. The case of the prosecution, as could be discerned from oral and documentary evidence, can be briefly summarised as follows:- (i) P.W.1 Sathasivam is the nephew and P.W.2 Savithri is the sister of the deceased Eswari. P.W.1 Sathasivam is living along with his father two houses away from the house of his junior paternal uncle Loganathan at Vijayamangalam in Perundurai Taluk. Eswari, aunt of P.W.1 Sathasivam, was residing in the said house of her brother Loganathan for the past about thirty years. She used to lend money to the weavers for interest. (ii) P.W.3 Selvaraj, hailing from Vijayamangalam, spotted A1 to A3 at about 5.00 p.m. on 10.5.2005 going into the house of Eswari. P.W.4 Velliangiri, hailing from Vijayamangalam, spotted A3 Thangaraj in front of the house of Eswari. P.W.4 Velliangiri gave one jack fruit to A3 Thangaraj and asked him to give it to his children. He found A3 Thangaraj in a nervous state. He enquired why he was found so nervous. A3 Thangaraj replied that there was no special significance for such a disposition. P.W.5 Babu, hailing from Vijayamangalam, spotted A3 Thangaraj at about 6.00 p.m. on 10.5.2005 holding a jack fruit in his hands in front of the house of Eswari. He also saw A1 Namasivayam and A2 Kumar coming out of the house of Eswari in a nervous state. https://hcservices.ecourts.gov.in/hcservices/ (iii) P.W.2 Savithri, sister of Eswari, is residing in Erode. Eswari used to pay a visit to her house often. One Bhuvaneswari residing in Vijayamangalam was contacted by P.W.2 Savithri to enquire Eswari as to why she had not come down to Erode on 11.5.2005 as programmed. Bhuvaneswari proceeded to the house of Eswari as requested by P.W.2 Savithri at about 10.00 a.m. on 12.5.2005 and found that the house of Eswari was locked. Thereafter, Bhuvaneswari approached P.W.1 Sathasivam and enquired the whereabouts of Eswari. Both of them joined by Veluchamy went to the house of Eswari and knocked at the doors. To their surprise, there was no response from the house. Unusually, the dog also did not bark. Therefore, P.W.1 Sathasivam went to the southern side of the house and scaled the small wall, got inside the veranda of the house and knocked at the doors. There was no response from inside. On the pial of the house, the dog, brought up by Eswari, was found dead. He peeped through the door and found that something was lying underneath the cot. A very strong foul smell emanated from the house. Suspecting foul play, he broke open the door adjoining the pial and entered into the bedroom and found Eswari lying dead under the mattress. The articles in the house were found strewn. The relatives were informed of the occurrence. (iv) P.W.1 Sathasivam proceeded to Perundurai Police Station at about 4.00 p.m. on 12.5.2005 and lodged Ex.P1 Written complaint. P.W.14 Indira Devi, Sub-Inspector of Police, Perundurai Police Station, registered a case in Crime No.330/05 under Section 174 CrPC and prepared Ex.P23 Printed First Information Report and despatched the original to the learned Judicial Magistrate and copies thereof to the Higher Officers concerned. (v) P.W.15 Inspector Raju took up the case for investigation, proceeded to the scene of occurrence at 5.00 p.m. on 12.5.2005, inspected the scene of occurrence in the presence of P.W.6 Duraismay and another witness Thangavel and prepared Ex.P2 Observation Mahazar. He also drew Ex.P24 Rough sketch reflecting the scene of occurrence. With the assistance of P.W.13 Ravichandran, Photographer, he arranged to take photographs M.O.17-series. The negatives thereof were marked as M.O.18-series. (vi) P.W.15 Inspector Raju held inquest on the dead body of Eswari between 7.00 p.m. and 10.00 p.m. on the same day in the presence of panchayatars and witnesses and prepared Ex.P32 Inquest Report. Services of Sniffer Dog Squad, Finger Print Expert and Chemical Examiner were utilised and they submitted their respective Reports. (vii) P.W.15 Inspector Raju seized M.O.1 Torch Light, M.O.2- series Cells, M.O.3-series broken Reapers, M.O.4 Blood stained mattress, M.O.5 Steel Fork and M.O.6 Stainless Steel plate under relevant seizure Mahazar, Ex.P3, in the presence of P.W.6 Duraismay and another witness. He examined the witnesses who were present over there and recorded their statements. https://hcservices.ecourts.gov.in/hcservices/ (viii) On the basis of Ex.P29 Requisition given by P.W.15 Inspector Raju, P.W.10 Dr. Latha conducted post-mortem examination on the dead body of Eswari at 10.10 a.m. on 13.5.2005 and found the following appearances - "Body is highly decomposed. Skin peeled off from the body. Foul smelling fluid is discharging from the body. Tongue is protruding. Both legs are in a state of hyper-extensive. Bowel about 1 to 1½ feet is protruding through the vaginal orifice. As the body is highly decomposed a streak like stolid with uterus is identified. Cut section empty on opening the thorax. Heart 200 gms. Both lungs are decomposed and like a membrane. Hyoid bone preserved. Stomach preserved empty. Liver 900 gms. Spleen liquefied. Both kidneys decomposed. Bladder could not be identified due to decomposition of her body. No injuries were made out. On opening the skull, Brain is found liquefied. Spinal column intact. Maggots seen over the body." She reserved her opinion pending Chemical Analysis Report, but, she has opined that Eswari appeared to have died 72 hours prior to autopsy. Ex.P12 is the Post-mortem Certificate issued by her. In Ex.P15 Final Report, she has stated that as the body was in a highly decomposed condition, injuries could not be identified, and no poison was detected in the viscera preserved. Therefore, she could not express any opinion as to the cause of death. She opined that it was possible that the deceased would have died due to asphyxia as a result of smothering, responding to the separate questionnaire put to her under Ex.P13. (ix) P.W.9 Dr. Kandasamy, a veterinary doctor by profession, conducted post-mortem examination on the dead body of a Bitch at 10.00 a.m. on 13.5.2005 based on the requisition emanated from P.W.15 Inspector Raju and found blood stained fluid oozing out from mouth and nostrils of the Bitch. Abrasion was noticed in middle thigh of left leg measuring 8 cm x 5 cm. Abrasion also was noted in the lower part of the right leg measuring 10 cm x 6 cm. The body was putrefied. There was contusion on the muscle of ventral thorax and cervix. Lungs, Trachea and Larynx were found severely congested. Ex.P10 is the Post-mortem Certificate issued by him. As per Ex.P11 Chemical Examination Report, Poison was not detected in any of the viscera parts sent for chemical examination. In Ex.P8 Final Opinion, P.W.9 Dr. Kandasamy opined that the Dog would appear to have died of internal haemorrhage and shock due to severe internal Injury. (x) All the three accused were spotted at 12 noon on 13.5.2005 in Vijayamangalam – Tiruppur Road Bus stop. A1 Namasivayam gave confession statement in the presence of P.W.8 V.A.O. Palanisamy and https://hcservices.ecourts.gov.in/hcservices/ another witness by name Shanmugam. On the basis of Ex.P4 Admissible portion in the confession statement given by him, M.O.10-series Two gold bangles inscribed with the letter 'E' along with a sum of Rs.1000 put in a polythene cover were recovered from the roof above the kitchen portion of his house. A2 Kumar also gave confession statement. On the basis of Ex.P5 Admissible portion in the confession statement given by him, M.O.11 Gold chain and a sum of Rs.2500/- were recovered from the heap of fire hood kept in his house. A3 Thangaraj also gave confession statement. On the basis of Ex.P6 Admissible portion in the confession statement given by him, M.O.12 Gold ring and Ex.P13-series Pair of Ear stud and a sum of Rs.1250/- were recovered from a rice bag found in his house. (xi) A3 Thangaraj also took P.W.15 Inspector Raju and the witnesses to the eastern side of the house of the deceased Eswari and identified M.O.7 Key and M.O.8 Lock and handed over the same to P.W.15 Inspector Raju. A1 Namasivayam and A3 Thangaraj took P.W.15 Inspector Raju along with the witnesses to the house of P.W.7 Ayyasamy, who was conducting Chit, and P.W.15 Inspector Raju recovered from him a sum of Rs.2,500/- which was paid by A1 Namasivayam and A3 Thangaraj towards the arrears of chit amount to him. (xii) All the accused were arrested and remanded to judicial custody. The material objects also were sent to the Court for custody. P.W.15 Inspector Raju converted the case into one under Sections 457, 380 and 302 of the Indian Penal Code and prepared Ex.P33 Altered Report and sent to the Court. P.W.15 Inspector Raju having examined all the witnesses in the case, completed the investigation and filed the Final Report as against all the accused. (xiii) The incriminating circumstances spoken to by the witnesses examined on the side of the prosecution were put to accused 1 to 3. A1 to A3 denied the incriminating circumstances spoken to by the witnesses. It is their version that a false case was foisted on them. (xiv) Neither oral nor documentary evidence was let in on the side of the defence. (xv) The Trial Court, having heavily relied upon the evidence of P.Ws.3 to 5, who spotted A1 to A3 at the house of the deceased Easwari, the arrest and recovery of the material objects from A1 to A3 and the positive finger print of A1 to A3 found in the scene of crime, returned a verdict of conviction as against the accused. 5. The prosecution has come out with a case of murder for gain. There is no ocular witness to the occurrence. The entire case of the prosecution hinges on various circumstances projected by the prosecution. 6. Homicidal death:- Let us now take up the issue as to whether Easwari died due to homicidal violence. PW1 Sadasivam, nephew of the https://hcservices.ecourts.gov.in/hcservices/ deceased spotted the decomposed dead body of Easwari at about 10.00 am on 12.5.2005. PW2 Savithri, the sister of the deceased came rushing on hearing the information about the demise of her sister Easwari and found the dead body of Easwari in a highly decomposed condition. PW10 Dr.Latha conducted post mortem examination on the dead body of Easwari at 10.10 am on 13.5.2005. She also found the dead body of Easwari in a highly decomposed state. Bowel about 1 to 1-1/2 feet was found protruding through the vaginal orifice. Foul smell emanated from the dead body. The tongue was found protruding. On account of the decomposed state of the dead body, no injury could be made out. But, she expressed the possibility that the deceased would have died due to asphyxia on account of smothering about 72 hours prior to autopsy. 7. Coming to the post mortem examination of the dog reared by the deceased Easwari, we find that PW9 Dr.Kandasamy, Veterinary Doctor by profession had thoroughly conducted post mortem examination and found blood stained fluid was oozing from the nostrils of the bitch. He had noted abrasions in the middle of the left thigh and lower part of the right leg measuring 8x5 cm and 10x6 cm respectively. There was also a contusion on the muscle of ventral thorax and cervix. The trachea and larynx were found severely congested. Taking into account the above features found on the dead body of the bitch, he opined that the dog would appear to have died of internal haemorrhage and shock due to severe internal injuries. 8. PW1 Sadasivam, who entered into the house of Easwari at about 10.00 am on 12.5.2005 found that the articles in the house were strewn in the living room. He has also spoken to the fact that the mattress was found on the dead body of Easwari. The said feature has been meticulously noted down in the observation mahazar prepared by the Inspector of Police, PW15 during the course of investigation. PW10 Dr.Latha, during the course of evidence, has expressed her opinion that there was some possibility for the bowel to come out through vagina due to forcible insertion of some hard material through the vagina. Unfortunately, the injuries found on the dead body could not be noted as it was in a highly decomposed state. But, the above features found on the dead body would go to establish that it was not a case of suicide, but, it was a case of homicide. 9. The prosecution could establish through the post mortem examination of the bitch by PW9 Dr.Kandasamy that the bitch reared by the deceased Easwari died of homicidal violence. No suicide theory can be attributed to the dog. 10. Learned counsel appearing for the appellants would submit that the very fact that the bed room door was locked from inside would go to show that Easwari committed suicide. At any rate, the cause of death was not established by the prosecution, it is further https://hcservices.ecourts.gov.in/hcservices/ submitted. The entire evidence of PW1, who was elaborately cross- examined with respect to the topography of the house of Easwari and the observation mahazar prepared by the investigating officer were thoroughly and meticulously gone into by us. As per the testimony of PW1, there were two entrances facing east to the house of Easwari. One of such entrances was found locked from outside and another such entrance was locked from inside. He had not chosen to break open the lock found on one of the doors of the house found on the eastern side. It is his emphatic version that only through those two entrances found on the eastern side, one could enter into the house of Easwari. He in fact scaled the wall with the help of a ladder and went inside the house and unlocked the door at one of the entrances on the eastern side paving way for Velusamy and Savithri to enter into the house. It is his testimony that even if the outer door was opened, one cannot have direct access to the bedroom where the dead body was found. There was a door to the bedroom which was found locked from inside. Therefore, he had to break open the lock and enter into the bed room in the midst of foul smell emanated from the dead body of Easwari. 11. The testimony of PW1 does not in any way indicate that there is no other access to the bed room. The recovery of key and the lock from the eastern portion of the house of Easwari on the basis of the admissible portion found in the confession statement of A3 would go to establish that the accused had very intelligently locked one of the entrances found on the eastern side of the house of Easwari and threw the key a little away from her house. As one of the entrances was found locked from outside, PW1 had to concentrate on opening the door locked from inside by scaling the wall. By no stretch of imagination, one can come to a conclusion that there is no other accessibility to the bed room. What actually PW1 had meant was that one cannot have direct access to the bedroom of Easwari by just opening the outer door on the eastern side which was found locked from inside. The separate door to the bed room will have to be opened to gain access thereto. The topography given in detail by the investigating officer in the observation mahazar indicate that more than one entrance is there to reach the main portion of the house of Easwari. In view of the above, we propose to reject the arguments submitted by the learned counsel appearing for the appellants that the court will have to necessarily presume that it was a case of suicide on account of the fact that the only door which was available to gain access to the bedroom of Easwari was also found locked from inside. The other features noted down by us at the scene of occurrence would also indicate that it was not a case of suicide. We find that Easwari died due to the murderous attack launched on her after putting an end to the life of the bitch reared by her. 12. Spotting of accused at the scene of crime:- PW3 Selvaraj and PW4 Velliangiri are neighbours living in the very same street at Vijayamangalam. PW5 Babu is living in the same village Vijayamangalam https://hcservices.ecourts.gov.in/hcservices/ but in a different street. PW3 Selvaraj has cogently spoken to the fact that he spotted the first accused Namachivayam, the second accused Kumar and the third accused Thangaraj proceeding to the house of Easwari at about 5.00 pm on 10.5.2005. PW4 Velliangiri, having seen the third accused Thangaraj in front of the house of Easwari at about 5.00 pm on 10.5.2005, gave him a jackfruit to give it to his children. When he found that Thangaraj was in a nervous stage, he asked him as to why he was in an unusual state. Thangaraj had replied that there was nothing unusual about his countenance. PW5 Babu was passing through the house of Easwari at about 6.00 pm on 10.5.2005. He found Thangaraj the third accused possessing jackfruit in his hands. He also noted the first accused Namachivayam and the second accused Kumar coming out of the house of Easwari in a nervous state. 13. The credibility of the testimony of P.Ws.3 to 5 could not be successfully challenged through cross-examination. There is no reason for them to speak ill of the accused. Their evidence is found to be cogent and convincing. One corroborates the testimony of the other. The accused had not come out with any reason as to why they proceeded to the house of the accused on 10.5.2005. The aforesaid material circumstance that on the fateful day A1 to A3 were spotted at the house of the deceased Easwari stood established. 14. The learned counsel appearing for the third accused would submit that if at all the third accused was spotted at the entrance of the house of Easwari, no finger print of the third accused would have been detected on the almirah found in the house of the deceased. 15. The learned Additional Public Prosecutor would reply that all the three accused had first proceeded to the house of the deceased and thereafter, the third accused was found at the entrance of the house. Therefore, the active participation of the third accused in the crime at the house of the deceased cannot be ruled out, it is submitted. 16. As rightly pointed out by the learned Additional Public Prosecutor, PW3 has witnessed all the three accused proceeding to the house of the deceased. Thereafter, it appears, PW4 and PW5 spotted the third accused standing at the entrance of the house of the deceased. Therefore, the association of the third accused in the actual crime committed inside the house of the deceased cannot be doubted. If at all the third accused simply stood guard, PW3 would not have noticed all the three accused proceeding to the house of the deceased. In view of the above, the submission made by the learned counsel appearing for the third accused that the prosecution has come out with a self-contradictory version stands rejected. 17. Arrest of the accused and recovery of jewels and cash:- PW8 Palanisamy has spoken to the arrest of all the three accused, the https://hcservices.ecourts.gov.in/hcservices/ confession given by them and the recovery effected thereupon. On the basis of the admissible portion, Ex.P4 found in the confession statement of the first accused, two gold bangles inscribed with the letter 'E' alongwith a sum of Rs.100/= was recovered from the roof in the godown portion of the first accused. On the basis of the admissible portion, Ex.P5 found in the confession statement of the second accused, gold chain and a sum of Rs.100/= were recovered from a heap of firewood in the house of the second accused. On the basis of the admissible portion, Ex.P6 found in the confession statement of the third accused, two gold rings, a pair of ear studs and a sum of Rs.100/= were recovered from a rice bag in the house of the third accused. 18. One of the doors found on the eastern side of the house of Easwari was found locked from outside. The key M.O.7 was recovered from the root of a plant located on the eastern side of the house of Easwari at the instance of the third accused. PW7 Ayyasamy was conducting chit. The first and third accused owed a sum of Rs.2500/= to PW7 towards the chit transaction. It is the evidence of PW7 that on 11.5.2005, he received a sum of 2500/= from A1 and A3. The said amount was recovered by PW15 in the presence of PW8 Palanisamy. 19. The learned counsel appearing for the appellants/accused would submit that the fact that the jewels recovered belong to the deceased was not established. None of the witnesses did identify the jewels recovered from the accused, he would further submit. It is his further submission that PW4 has come out with a version that all the three accused were brought to the scene of occurrence at about 8.30 pm on 12.5.2005 itself whereas PW15 the investigating officer deposes that the accused were apprehended at about 12.00 noon on 13.5.2005. Therefore, the arrest of the accused and recovery of material objects from them fall to the ground, it is submitted. 20. We find that the deceased Easwari, doing