IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15-9-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN CRL.A.No.697 of 2009 Velankanni @ Velu @ Velankanniraj .. Appellant/Accused A2 vs State by: The Inspector of Police B9 Saravanampatty Police Station Coimbatore .. Respondent/Complianant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge cum Fast Track Court No.III, Coimbatore, made in S.C.No.241 of 2004 dated 17.2.2006. For Appellant : Mr.T.K.Sampath for Mr.K.S.Suresh For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, FTC No.III, Coimbatore, made in S.C.No.241 of 2004 whereby the appellant herein who is shown as A-2, along with four others stood charged, tried, found guilty and awarded the punishments as follows: ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-4 302 IPC (two counts) Guilty Double life imprisonment A-1 to A-4 392 IPC Guilty 7 years RI along with a fine of Rs.1000/- and default sentence https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-1 201 IPC Guilty 7 years RI along with a fine of Rs.1000/- and default sentence A-5 201 r/w 109 r/w 302 & 392 IPC Guilty under Sec.302 IPC 392, 201 & 109 IPC Double life imprisonment 7 years RI along with a fine of Rs.1000/- and default sentence 2.The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the cousin, and P.W.2 is the son of the first deceased (D1) Velusamy and the second deceased (D2) Rajalakshmi. P.W.3 is the sister of D2. P.W.5 is the niece of D2. The elderly couple in their 60's were residing in Door No.217, Ganapathy Sakthi Road, Coimbatore, within the jurisdiction of the respondent police. Both of them were in their house on the day hours of 20.4.2003. P.W.1 who used to make a casual visit to their house since they were under ailment, came to their house at about 6.30 P.M. on that day, and he found the door closed, but not locked. He opened the door and got inside, but either of the deceased was not found. Then he climbed the upstairs and there also they were not found. When he was descending, he found bloodstains which led him to the place where the dead body of D1 Velusamy was found. Then he went to the next room where he found the dead body of D2 Rajalakshmi. Immediately he phoned over to his brother P.W.4, and it was also informed to the relatives. Then, P.W.1 proceeded to the respondent police station and gave Ex.P1, the report, on the strength of which, a case came to be registered by P.W.18, the Sub Inspector of Police, in Crime No.150/2003 under Sections 302 and 380 of IPC. The printed FIR, Ex.P41, was despatched to the Court. (b) P.W.20, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3, and also a rough sketch, Ex.P43. Then he conducted inquest on both the dead bodies in the presence of witnesses and panchayatdars and prepared two inquest reports, Exs.P44 and P45 respectively. After the inquest was over, the dead bodies were sent to the Government Hospital for the purpose of autopsy. (c) P.W.11, the Tutor in Forensic Medicine, Coimbatore Medical College Hospital, on receipt of the requisition, has conducted autopsy on the dead body of D1 Velusamy and has issued a postmortem certificate, Ex.P11, with his opinion that the deceased would appear to have died of haemorrhage and shock due to cut injury in the neck. (d) Equally P.W.11, the same Medical Person, on receipt of the https://hcservices.ecourts.gov.in/hcservices/ requisition, has conducted autopsy on the dead body of D2 Rajalakshmi and has issued a postmortem certificate, Ex.P14, with his opinion that the deceased would appear to have died of haemorrhage and shock due to cut injury in the neck. The final opinion is marked as Exs.P16 and P17 respectively. (e) Following the same, P.W.2 who went to the house, found Ex.P3, a chit, and he handed over the same to the Investigator. P.W.2, the son, after making a search in the house and finding the bureau opened, gave a list of articles which were found missing including cash, namely M.Os.1 & 2, wrist watches, M.O.3, golden bangles, M.O.4, currency notes worth Rs.22200/- and M.O.22, ring. The Investigation was on. (f) On 22.4.2003, P.W.20 received Ex.P2 papers from P.W.2 in form 95. Then he proceeded with the investigation in that line, entertaining suspicion. On 27.4.2003, P.W.20 arrested A-4, and he came forward to give a confessional statement voluntarily, and the same was recorded. The admissible part is marked as Ex.P7, following which M.O.3, golden bangles, were recovered from him. Equally, A-1 and A-5 were arrested on 30.4.2003. They came forward to give confessional statements, which were recorded. The admissible parts are marked as Exs.P18 and P19 respectively. Thereafter, A-3 was arrested on 1.5.2003, when he gave a confessional statement voluntarily. The admissible part is marked as Ex.P26, pursuant to which the material objects were recovered from him. (g) On 2.5.2003, the appellant/A-2 was arrested, and he gave a confessional statement. The admissible part is Ex.P23. He also produced M.O.1, Titan wrist watch, M.O.22, golden ring, M.O.23, cash of Rs.8150/- (a portion of M.O.4 series), and M.O.24, bloodstained shirt, M.O.25, bloodstained pant, and also M.O.26, hacksaw blade. They were all recovered under a cover of mahazar. (h) Pending investigation, a requisition was put forth before the Chief Judicial Magistrate for the identification of the accused. P.W.6 was taken for the test identification parade, and he also identified all the accused persons in the identification parade. The test identification parade proceedings are marked as Ex.P40. (i) All the material objects recovered from the place of occurrence and from the dead body were subjected to chemical analysis, which resulted in Ex.P30, the chemical analyst's report, and Ex.P31, the serologist's report. On completion of the investigation, the Investigator filed the final report. 3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 20 witnesses and also relied on 48 exhibits and 36 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 trial Court heard the arguments https://hcservices.ecourts.gov.in/hcservices/ advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt in respect of all the charges and hence found them guilty and awarded the punishments as referred to above. Hence this appeal at the instance of the appellant/A-2. 4.Advancing the arguments on behalf of the appellant/ A-2, the learned Counsel Mr.T.K.Sampath would submit that in the instant case, the prosecution had no direct evidence to offer; that according to the prosecution, the occurrence has taken place at about 4.00 P.M. on 20.4.2003; that at that time, the inmates in the house were both the deceased Velusamy and Rajalakshmi; that the prosecution rested its case entirely on the circumstances; that the first circumstance was the evidence of P.W.6 who was carrying on a tea shop situate opposite to the house of the deceased; and that apart from that, the evidence of P.W.5 and also P.W.7 was also relied upon in order to strengthen the circumstantial evidence. 5.Added further the learned Counsel that the second circumstance mainly relied on by the prosecution was the recovery of some of the material objects from A-2 pursuant to the alleged confessional statement. Attacking that part of the evidence put forth by the prosecution before the trial Court, the learned Counsel would submit that as far as the evidence of P.W.6 is concerned, the trial Court should have rejected the evidence for more reasons than one; that it is claimed by P.W.6 that he was actually carrying on a tea stall in front of the house of the deceased; but the occurrence has taken place at about 4.00 P.M. on 20.4.2003; that it is a matter of surprise to note that he has deposed before the trial Court that he came to know about the same in the next morning through newspaper, and he was also interrogated by the Police Officer only on 23.4.2003, and his statement has reached the Court only on 25.4.2003; that if really he was carrying on a tea stall just in front of the house of the deceased, one would expect that a reasonable conduct of a person would be to immediately inform the Investigator that he saw all the accused persons in the house of the deceased at or about the time; but, he has not done so, and hence the last seen theory that the deceased were in the company of the accused, therefore, could not be believed. 6.The learned Counsel would further submit that as far as the evidence of P.W.5, a close relative, was concerned, according to him, originally A-1 and another accused one Karuppusamy, since deceased, who died pending investigation, were all doing painting work in the house of P.W.5 and afterwards P.W.5 asked them to go and do painting work in the house of the deceased, and accordingly, they did; that it is pertinent to point out that P.W.5 has not stated that there was any introduction of the accused persons and not even mentioned the name of A-2; that though it is in plural, it cannot be taken that A-2 was also asked to go over for painting work in the house of the deceased; that under the circumstances, the evidence of P.W.5 could not be relied on; that as far as P.W.7 is concerned, his evidence could not be relied for any purpose at all because after five days he was examined, and he was not taken for the https://hcservices.ecourts.gov.in/hcservices/ identification parade; that it is not his case that except A-1, he knew any one of the other accused, and under the circumstances, his evidence cannot be relied. 7.Levelling much criticism on the evidence as to the recovery, the learned Counsel would submit that at the time of giving the complaint under Ex.P1, P.W.2 gave a list of articles on the next day which is marked as Ex.P3; that it is pertinent to point out that M.O.1, wrist watch, or M.O.22, golden ring, was not mentioned in Ex.P3, list; and that merely because he identified the same in the Court, that would not suffice. 8.Added further the learned Counsel that in the instance case, the recovery of those articles has actually been made pursuant to the confessional statement alleged to have been given by him on 2.5.2003, and the evidence in that regard was also shaky; that even assuming that the recovery was made, it can be presumed that he was a receiver of the stolen properties, and at best, he could be found guilty under Sec.411 of the Code and nothing more. Relying on a decision of this Court reported in 2005 (2) MWN (CRI.) 42 (KANDAMATHA CHETTY AND OTHERS V. STATE), the learned Counsel would submit that the recovery of the stolen properties cannot be a conclusive proof pointing to the crime of murder. 9.The learned Counsel would further submit that for the above reasons, it can be well stated that the prosecution has miserably failed to prove its case and the circumstances placed are not proved; that in the absence of proof of those circumstances, the prosecution was lacking in evidence and it would be unsafe to sustain a conviction, and hence the judgment of the trial Court has got to be set aside. 10.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 11.It is not in controversy that following the inquest made by P.W.20, the Investigator, on both the dead bodies of Velusamy and Rajalakshmi, the dead bodies were subjected to postmortem by P.W.11, the Doctor, who has given postmortem certificates, Exs.P11 and P14 respectively. The Medical Person has also deposed before the Court that the death was due to the haemorrhage and shock due to cut injury in the neck as found in the contents of the postmortem certificates. The cause of death namely homicidal violence, as put forth by the prosecution, was not a subject matter of controversy before the trial Court, and hence the trial Judge was perfectly correct in recording so. 12.In order to substantiate the charges levelled against the appellant along with the other accused before the trial Court, it is true that the prosecution had no direct evidence to offer since at the time of occurrence, nobody was available in the house except both the deceased D1 Velusamy and D2 Rajalakshmi. Now, the prosecution relied on the circumstantial evidence. It is not that https://hcservices.ecourts.gov.in/hcservices/ this Court is unmindful of the caution made by the settled principles of law that in a given case where the prosecution rested its case exclusively on the circumstantial evidence, the Court must look into that all the circumstances must constitute a chain and that too without a snap, and apart from that, it must be pointing to the hypothesis that except the accused, no one could have committed the offence. In the case on hand, even after the application of this test, this Court is satisfied that the prosecution has brought home the guilt of the appellant/A-2. Now, the following circumstances are noticed by the Court. 13.Firstly, according to P.W.5, A-1 and one Karuppusamy were doing painting work in his house, and at that time, he asked them to go and do the painting work in the house of the deceased, and even thereafter, on verification P.W.5 found that A-1 and others were doing painting work. 14.Secondly, P.W.6 was carrying on a tea stall just in front of the house of the deceased. According to him, on the day of occurrence namely 20.4.2003, he went to the house of the deceased to take a pot of water, and at that time, he found A-1, A-2, A-3, and A-5 chatting in front of the house of D1 and D2, and at that time, D2 was also standing nearby, and it was also questioned by D1 why he should come and take water there, and he could better take water in the public pipe, and P.W.6 made a further request, and then he was permitted to take, and he actually found the accused persons talking. Thus the evidence of P.W.6 would go to show that he actually went there for taking 4 or 5 pots of water, and he found the accused persons four in number including A-2, chatting in front of the house of the deceased. It is pertinent to point out that within a short interval, the occurrence has taken place at about 4.00 P.M. on the very day. 15.It is further to be pointed out that P.W.6 was actually interrogated on 23.4.2003, and his statement was recorded, and the same was sent to the Court on 25.4.2003. Thereafter, he was taken for the identification parade where he identified the accused including the appellant herein without any doubt at all. The identification parade proceedings are also placed before the Court. 16.Much comment was made on the evidence of P.W.6 stating that he was interrogated only after a few days and if it is really true, he would have given the statement immediately. Now, at this juncture, it is pertinent to point out that P.W.6 was actually carrying on the tea stall in the opposite direction, and he was examined on the third day when the investigation was on. The interrogation of P.W.6 who is not an eyewitness, but only a witness to the circumstances, in the considered opinion of this Court, by itself cannot be a reason to doubt the prosecution case. The involvement of the accused including A-2, the appellant herein, was first spoken to by A-4 when he was arrested on 27.4.2003, and his confessional statement was recorded. At this juncture, it is pertinent to point out that even before the arrest of A-4, the Investigator has recorded the statement of P.W.6 on 23.4.2003 https://hcservices.ecourts.gov.in/hcservices/ itself, and it reached the Court on 25.4.2003. This would be clearly indicative of the fact that the statement cannot but be true. If the statement was recorded subsequent to the arrest of any one of the accused, it would cast a reasonable doubt whether it could have been a created document. But, in the instant case, it was actually recorded on 23.4.2003, and reached the Court on 25.4.2003. Under the circumstances, merely because the statement of P.W.6 was recorded after a few days, it cannot be taken that he comes forward to take a falsehood. 17.The learned Counsel made much comment on the recovery of jewels. It is true that at the time when the complaint was given, P.W.2 did not mention about the missing of the jewels. He has given a list of articles as found under Ex.P3 subsequently. It is also urged by the learned Counsel that the jewels did not find place in Ex.P3 list. But, it should not be forgotten that P.W.2 was actually not a person with them. The jewels were actually found missing from the bureau, and so long as he did not have the knowledge about the same, one could not expect him to speak of all the items in the list. Merely because some of the jewels were actually found missing in the list, it did not mean that they did not belong to the deceased. M.O.1, watch, M.O.23, cash, and M.O.22, golden ring, were all produced before the Court, and they were actually shown to P.W.2. He identified that they belonged to the deceased. At this juncture, it remains to be stated that merely because they were not mentioned in the list of articles, it did not mean that they did not belong to the deceased. The evidence adduced in respect of the confessional statement of A-2 and also the recovery of the material objects remained intact. 18.Apart from the above, the learned Counsel also made a comment that it was not only a case of murder for gain, but also due to some enmity. The learned Counsel brought to the notice of the Court that from the inquest report, it would be quite clear that the jewels worn by Rajalakshmi were actually found in the dead body; that if really it was a murder for gain, they would have removed all the jewels, but, they did not do so, and under the circumstances, it would cast a doubt on the prosecution case. This Court is unable to agree with the contention that the jewels which were worn by the lady Rajalakshmi, were not taken away. It remains to be stated that the bureau has been opened, and then he found the jewels therein taken. In order to create a slur or a suspicion in the mind of the others and in view of the fact that the time duration what was available to the accused and that too, in the odd hours, was only short, they would have immediately fled away from the place of occurrence. Therefore, the main circumstance relied on by the prosecution that P.W.6 was the person who found all the accused persons including A-2 at or about the time of occurrence, inside the house of the deceased coupled with the recovery which was made from A-2 and the fact that all the jewels which belonged to D2 Rajalakshmi, were identified by P.W.2, in the considered opinion of the Court, would suffice pointing to the guilt of the appellant/A-2, and thus the trial Judge was perfectly correct in finding the appellant/A-2 guilty under Sections 302 (2 counts) and 392 of IPC https://hcservices.ecourts.gov.in/hcservices/ and also in awarding the punishment as stated supra. This Court is unable to see anything to disturb the judgment of the trial Court either factually or legally. 19.In the result, this criminal appeal fails, and the same is dismissed, confirming the judgment of the trial Court. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Additional District & Sessions Judge FTC No.III Coimbatore 2.-do- Thro' The Principle Sessions Judge, Coimbatore. 3.The Inspector of Police B9 Saravanampatty Police Station Coimbatore 4.The Public Prosecutor High Court, Madras. 5.The District Collector,Coimbatore. 6.The Director General of Police, Mylapore, Chennai-4. 7.The Superintendent, Central Prison, Coimbatore. 8.The Section Officer, Criminal Section,High Court, Madras. SA(CO) km/28.9. CRL.A.No.697 of 2009 https://hcservices.ecourts.gov.in/hcservices/