IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03.03.2011 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN Referred Trial No. 3 of 2010 and Criminal Appeal No. 637 of 2010 Jayakumar .. Accused in R.T. and Appellant in Crl.Appeal Vs. State Rep. by the Inspector of Police, V-3 J.J. Nagar Police Station presently known as Nolumbur Police Station Chennai. .. Complainant in R.T. and Respondent in Crl.A. Prayer : The Referred Trial has been preferred seeking confirmation of the sentence passed by the learned Additional District and Sessions Judge, Fast Track Court No.I, Poonamallee, in S.C.No. 34 of 2009 dated 23.9.2010. The Criminal Appeal has been preferred against the Judgement and Decree dated 23.9.2010 passed in S.C.No.34 of 2009 on the file of the Additional District and Sessions Judge, Fast Track Court No.I, Poonamallee. For Appellant :: Mr. M.Venkatraman, Sr.Counsel for Mr. V.Krishnakumar For Respondent :: Mr. P.Kumaresan Public Prosecutor C O M M O N J U D G M E N T (The Judgment of the Court was made by C. NAGAPPAN, J.) This judgment shall govern the disposal of Referred Trial case No.3 of 2010 and Criminal Appeal No.637 of 2010. https://hcservices.ecourts.gov.in/hcservices/ 2. The Referred Trial has been preferred seeking confirmation of the death sentence passed by the Additional District and Sessions Judge, Fast Track Court No.I, Poonamallee, in S.C.No.34 of 2009 dated 23.9.2010, whereby the sole accused therein stood charged under Sections 449, 302 and 382 IPC, tried and found guilty of the charges and awarded Ten years Rigorous Imprisonment along with a fine of Rs.5,000/-, in default to undergo two years Simple Imprisonment for the offence under Section 449 IPC; Ten years Rigorous Imprisonment along with a fine of Rs.5,000/-, in default to undergo two years Simple Imprisonment for the offence under Section 382 IPC; and death sentence along with a fine of Rs.5,000/-, in default to undergo two years Simple Imprisonment for the offence under Section 302 IPC. 3. The said judgment is also challenged by the accused in Criminal Appeal No.637 of 2010. Both, the Referred Trial seeking confirmation of the death sentence made by the Sessions Court and also the Criminal Appeal filed at the instance of the appellant/accused are taken up together for consideration. For the sake of convenience, in this judgment, the appellant will be referred to as the accused. 4. To prove its case, the prosecution examined P.Ws.1 to 18 and marked Exs.P.1 to P.30 and M.Os.1. To 8. 5. The case of the prosecution, as could be discerned from oral and documentary evidence, can be briefly summarised as follows. P.W.1 Lakshmi Narayanan is the husband of deceased Jeyamala and he is working as Software Engineer in ISOFT Company, Kodampakkam, Chennai. P.W.12 Surya, aged about 9 years, and Sathia, aged about 4½ years, are their children and they were studying in SBOA School, Anna Nagar West and they were residing in Flat No.1C Celestine Citadel Apartments, Vellala Street, Mugappair West, Chennai 3. P.W.13 Vijayakumar was residing in another flat in the same Apartments. P.W.2 Uthirakumar was employed as watchman in the Apartments. Accused Jeyakumar is a painter-cum-maistry working under P.W.16 Civil Engineer Chithirai Kannan and he was doing painting work in the said Apartments. On 12.12.2007, P.W.1 Lakshmi Narayanan left for Office at 8.45 a.m. and talked to his wife at 11.45 a.m. over telephone. At about 11.30 a.m. the wife of the accused Jeyakumar came to the Apartments along with P.W.3 Nagappan and met accused Jeyakumar and the accused told his wife to come back at 3'O clock and he would pay the money for settling the rent for the Compressor Motor. The children of deceased Jeyamala P.W.12 Surya and Sathia returned home from the School by 12 noon and had their lunch and went to play in the ground floor. The wife of the accused came there around 3.00 p.m. along with P.W.3 Nagappan and P.W.2 Uthirakumar sent them inside https://hcservices.ecourts.gov.in/hcservices/ the Apartments for meeting accused Jeyakumar. When they met accused Jeyakumar, P.W.3 Nagappan noticed blood stains on the neck and shirt of accused Jeyakumar and he enquired him. Accused Jeyakumar replied that it is varnish and P.W.3 Nagappan disputed the same by saying that it is blood and when wife of the accused also asked about the blood stains, the accused replied that it is paint and they left the place. After play, the children P.W.12 Surya and Sathia returned to their flat at 3.30 p.m. and found their mother Jeyamala lying with bleeding neck injury in the bathroom and they came out crying. On hearing the same, P.W.2 Uthirakumar and P.W.13 Vijayakumar rushed there and found Jeyamala in the bathroom with bleeding injury in the neck and P.W.13 Vijayakumar informed P.W.1 Lakshmi Narayanan through telephone. P.W.1 Lakshmi Narayanan rushed to his house and saw Jeyamala with bleeding cut injury in the neck and the Gold jewels worn by her were found missing and he took her in an Ambulance to Sri Devi Hospitals. Dr. Prabavathi declared her as already dead. On 12.12.2007 at 5.30 p.m., P.W.1 Lakshmi Narayanan went to J.J. Nagar Police Station and gave Ex.P1 Complaint and P.W.11 Sub- Inspector Manickam received the same and registered a case in Crime No.974/2007 under Sections 380 and 302 IPC and prepared Ex.P18 First Information Report and despatched it to higher officers and Court. P.W.15 Inspector Ponnusamy took up the investigation and reached the occurrence place at 6.00 p.m. on 12.12.2007 and prepared Ex.P2 Observation Mahazar and drew Ex.P19 Rough Sketch. He conducted inquest on the body from 6.00 p.m. to 7.30 p.m. in the presence of panchayatars and prepared Ex.P20 Inquest Report and sent the body for post-mortem with Ex.P11 Requisition through P.W.10 Head Constable Sundaram. He examined P.W.1 Lakshmi Narayanan, P.W.2 Uthirakumar, P.W.3 Nagappan, P.W.4 Seetharamaiah P.W.12 Surya, P.W.13 Vijayakumar and some other witnesses and recorded their statements. P.W.8 Dr. S.Kuppusamy conducted autopsy at 12.30 p.m. on 13.12.2007 on the body of Jeyamala and found the following – "External Injuries: A open cut injury with regular margins seen on the front and sides of Neck more on the right side of Neck than the left side below the Thyroid Cartilage measuring about 26 cm L x 4 cm B x 4 cm D. This cut injury cuts the Trachea in front Carotid artery and Jugular vein on the right side Neck sparing the left side carotid artery and Jugular vein. (2) A small incised wound seen on the front of left fore arm measuring 4 cm L x 1 cm B x Skin depth The cut injury and incised wound margins are sharp regular and clean cut. No other wound or injury seen on the body. On dissection of Internal Organs: Hyoid bone Intact. https://hcservices.ecourts.gov.in/hcservices/ Trachea is cut below the thyroid Cartilage. Stomach: 400 ml. of Undigested food particles seen. Heart, Lung, Liver, Kidneys and Spleen: Normal and Pale. Bladder: 20 ml. of Urine present. Intestine and Uterus: Empty. Spinalcord and Pelvis: Intact. Scalp, Skull and Membrane: Intact. Brain: Normal and Pale." Ex.P14 is the post-mortem certificate issued by him expressing opinion that the deceased would appear to have died of shock and Haemorrhage due to cut throat injury. P.W.10 Head Constable Sundaram took M.Os.5 to 8 clothes of the deceased from the body and produced them to the Investigation Officer. P.W.14 Inspector Sugumar attached to Thirumangalam Police Station, during the investigation of the case, registered in Crime No.319/09 on his file, arrested accused Jeyakumar at 5.30 p.m. on 27.6.2008 near Anna Nagar Railway Station, Old Thirumangalam Road and enquired him in the presence of P.W.5 Ambrose and another and recorded the confession statement given by accused Jeyakumar and came to know about the involvement of him in the case in Crime No.974/07 on the file J.J. Nagar Police Station. Exs.P3 and P4 are the admissible portions of the confession statement. Accused Jeyakumar took P.W.14 Inspector Sugumar and the witnesses to his house and took and produced M.O.4 Knife hidden in the earth and P.W.14 Inspector Sugumar recovered the same at 10.00 p.m. under Ex.P21 Mahazar in the presence of the same witnesses. M.O.1-series 9 Black Beads were recovered from Malini @ Jayamalini, wife of accused Jeyakumar, under Ex.P5 Mahazar in the presence of the same witnesses. On 28.6.2008, accused Jeyakumar took P.W.14 Inspector Sugumar and the witnesses to the Pawn Broker shop of P.W.6 Pincharam and M.O.2-series one Gold Thali Pottu and 3 Gold Gundoos measuring 10 gms were recovered under Ex.P6 Mahazar in the presence of the same witnesses. Thereafter, accused Jeyakumar took them to the Pawn Broker Shop of P.W.7 Lakshman Ram and P.W.14 Inspector Sugumar recovered M.O.3 Gold Chain under Ex.P7 Mahazar in the presence of the same witnesses and the accused Jeyakumar was sent to judicial remand. P.W.14 Inspector Sugumar sent the records to the Inspector of Police, J.J. Nagar Police Station on 2.7.2008. P.W.15 Inspector Ponnusamy of J.J. Nagar Police Station took accused Jeyakumar in police custody on 9.7.2008 and enquired him. He also examined P.W.5 Ambrose, P.W.6 Pincharam, P.W.7 Lakshman Ram and P.W.17 Dilli Babu and some other witnesses and recorded their statements. He completed the investigation and filed the Final Report against accused Jeyakumar in the case. https://hcservices.ecourts.gov.in/hcservices/ The accused was questioned under Section 313 CrPC and he denied complicity. No witness was examined and Exs.D1 and D2 were marked on his side. 6. The trial Court held that the charges against accused Jeyakumar have been proved and convicted and awarded the capital punishment of Death Sentence and also sentences of imprisonment as stated earlier. 7. For the purpose of confirmation of death sentence, the matter has been referred to this Court under Section 366 CrPC. Notice was served upon accused Jeyakumar. The accused has also preferred an appeal, which is taken up for consideration along with the Referred Trial. 8. The learned counsel for the appellant/accused submitted that the case is based on circumstantial evidence and the circumstances highlighted are insufficient, scanty and do not present a complete chain to warrant the conclusion of guilt on the accused and the arrest and recovery cannot be believed and investigation is perfunctory and the accused is entitled to benefit of doubt. Per contra, the learned Public Prosecutor submitted that accused Jeyakumar was a painter and the prosecution has established his presence in the scene of occurrence in and around the time of occurrence and P.W.3 Nagappan noticed blood stains on the neck and shirt of the accused immediately after the occurrence and the accused on his arrest had given information in his confession statement leading to recovery of M.Os.1 to 3 jewels of deceased Jeyamala and the prosecution has established the circumstances clinchingly and proved the guilt of the accused. 9. The case of the prosecution is that at the time of occurrence, accused Jeyakumar by committing house trespass inflicted a throat cut injury on Jeyamala, resulting in her death and committed theft of jewels worn by her. There is no eye witness to the occurrence and the case is based on circumstantial evidence. The incriminating circumstances relied on by the prosecution are as follows: (i) Jeyamala died of Homicidal violence; (ii) Accused Jeyakumar, painter-cum-Maistry by profession, was doing painting work in Celestine Citadel Apartments on the day of occurrence; (iii) P.W.3 Nagappan came along with the wife of accused Jeyakumar to the Apartments at 3.00 p.m. on the occurrence day and when he met accused Jeyakumar, he noticed blood stains on the neck and shirt of accused Jeyakumar and enquired him and https://hcservices.ecourts.gov.in/hcservices/ accused Jeyakumar replied that it is varnish and he disputed the same by saying that it is blood and when the wife of accused Jeyakumar asked about the blood stains, accused Jeyakumar replied that it is paint; (iv) Arrest of accused Jeyakumar and information given by him in his confession statement leading to recovery of M.Os.1 to 3 jewels belonging to deceased Jeyamala; and (v) Accused Jeyakumar was in need of money on the occurrence day to settle the rent for the compressor motor taken on hire by him. 10. The prosecution has examined P.W.9 Dr. Thangaraj and P.W.8 Dr. S.Kuppusamy to prove the Homicidal Death of Jeyamala. On receiving information about the occurrence, P.W.1 Lakshmi Narayanan rushed to his house and found his wife Jeyamala with bleeding neck injury, in the bathroom and took her in an ambulance to Sri Devi Hospitals. Dr. T.Prabavathi, on examination, found her dead and noticed a cut injury extending from left Lateral aspect of neck to the Posterior aspect. Ex.P15 is the Accident Register issued by her stating that Jeyamala was brought dead to Sri Devi Hospitals and P.W.8 Dr. S.Kuppusamy, who knew her handwriting and signature, has testified about the same. 11. P.W.8 Dr. Kuppusamy conducted autopsy on the body of Jeyamala and he found an open cut injury with regular margins on the front and sides of neck more on the right side of neck than the left side below the Thyroid cartilage, cutting Trachea, Carotid artery and Jugular vein. He has expressed opinion that the deceased would appear to have died of shock and haemorrhage due to cut throat injury. Ex.P14 is the Post-mortem Certificate issued by him. Accepting the medical evidence, it is clear that Jeyamala died of Homicidal Violence. 12. P.W.1 Lakshmi Narayanan is living with his wife Jeyamala and two children, namely, P.W.12 Surya, aged about 9 years, and Sathia, aged about 4½ years, in Flat No.1C, Celestine Citadel Apartments, Mugappair West, Chennai. The said Apartments was constructed by India Builders and the work was incomplete and painting work was in progress at the time of occurrence. P.W.16 Chithirai Kannan is the Civil Engineer employed in India Builders and he has testified that accused Jeyakumar was working as painter- cum-maistry with them and they used to remit the labour charges of accused Jeyakumar in his account in Karur Vysya Bank and also obtained his signature towards disbursement. Exs.P22 to P25 are the extracts of Labour Payment Register for the weeks ended on https://hcservices.ecourts.gov.in/hcservices/ 13.10.2007; 3.11.2007; 17.11.2007 and 1.12.2007 respectively. The name of accused Jeyakumar is found mentioned in the extracts and he has also affixed his signature in the entries. P.W.18 Hari Prabhu is the Officer in Karur Vysya Bank and he has testified about the Savings Bank Account standing in the name of accused Jeyakumar. Ex.P29-series is the copy of the Account Opening Form submitted by accused Jeyakumar along with his photograph and signature. It is the further testimony of P.W.16 Chithiraikannan that accused Jeyakumar was doing painting work on the day of occurrence, i.e. on 12.12.2007, in Celestine Citadel Apartments and he has signed Ex.P26 Attendance Register kept in the Apartments on the said date. P.W.2 Uthirakumar is employed as Watchman in Celestine Citadel Apartments by India Builders and he has testified that accused Jeyakumar came at 9’O clock on 12.12.2007 for the painting work in the Apartments and also signed Ex.P26 Attendance Register. P.W.12 Surya is the minor son of deceased Jeyamala and he has testified that he has seen accused Jeyakumar doing painting work in the Apartments on the occurrence day. 13. P.W.3 Nagappan is a Painter by profession and he used to work under accused Jeyakumar and he has testified that he accompanied the wife of accused Jeyakumar on her request to Celestine Citadel Apartments on 12.12.2007 and met the accused twice on the said date. The prosecution has established that accused Jeyakumar was doing painting work in Celestine Citadel Apartments on 12.12.2007 by adducing oral and documentary evidence as stated above. 14. It is the testimony of P.W.3 Nagappan that on 12.12.2007, the persons, who let on hire the compressor motor to accused Jeyakumar for painting, were quarrelling with the wife of accused Jeyakumar for payment of rental due and on the request made by the wife of accused Jeyakumar, he took her to Celestine Citadel Apartments at 11.30 a.m. where accused Jeyakumar was doing painting work and informed P.W.2 Uthirakumar and accused Jeyakumar came out of the Apartments and told his wife to come back at 3.00 p.m. and he would give the money for settling the rental arrears of the Compressor Motor and thereafter, at 3.30 p.m. when they went again to the Apartments, and he met accused Jeyakumar in the upstairs and noticed the blood stains on the neck and shirt of accused Jeyakumar and he enquired about the same and accused Jeyakumar replied that it is varnish and he disputed the same by saying that it is only blood and accused Jeyakumar directed him to go downstairs. He has further testified that accused Jeyakumar came out after cleaning the blood stains and the wife of accused Jeyakumar also asked him about the blood stains and accused Jeyakumar replied that it is paint and they left the place and came to know of the occurrence on the next day. 15. P.W.3 Nagappan used to work as Painter under Maistry accused Jeyakumar and they belong to the same locality. According to P.W.3 Nagappan, on 12.12.2007 in the morning when the wife of accused https://hcservices.ecourts.gov.in/hcservices/ Jeyakumar requested him to accompany her to the work place of accused Jeyakumar, he initially refused, but later obliged on seeing her weeping. 16. P.W.2 Watchman Uthirakumar has testified that P.W.3 Nagappan and the wife of accused Jeyakumar came to the Apartments at 11.30 a.m. on the occurrence day in search of accused Jeyakumar and accused Jeyakumar came down and was talking to his wife and returned back to continue the work and thereafter, at 3.30 p.m., P.W.3 Nagappan along with the wife of accused Jeyakumar again came to the Apartments and since accused Jeyakumar was doing work in the upper floor, he sent him upstairs and after some time, they left the Apartments and he heard the cries of the children of Jeyamala and rushed there and saw Jeyamala with bleeding neck injury, in the bathroom. 17. P.W.12 Surya is nine years old studying in SBOA School and he has stated that on 12.12.2007 he had maths examination and after finishing examination, he returned home at 12 noon and had his lunch and he and his sister Sathia, aged 4½ years, went to the ground floor for play and their mother Jeyamala was alone in the house and at about 3.30 p.m. when they returned home, Sathia first noticed their mother Jeyamala with bleeding neck injury in the bathroom and they came out crying. 18. P.W.13 Vijayakumar was residing in another flat in Celestine Citadel Apartments and he came home for lunch on 12.12.2007 and when he was preparing to leave for Office at 3.30 p.m., he heard the cries of the children and went there and saw Jeyamala with bleeding neck injury and he telephonically informed the same to P.W.1 Lakshmi Narayanan. 19. There is no reason for P.W.3 Nagappan to falsely depose against accused Jeyakumar. In fact, nothing is elicited in the cross-examination to discredit his testimony. The testimony of P.W.3 Nagappan is natural, cogent and trustworthy and he has seen accused Jeyakumar immediately after the occurrence and noticed blood stains on his neck and shirt and also enquired him about the same. The accused had given a false answer that it is varnish. The prosecution has established this vital circumstance through the positive evidence of P.W.3 Nagappan. 20. The next circumstance is the statement given by accused Jeyakumar leading to recovery of M.Os.1 to 3 Jewels belonging to deceased Jeyamala. P.W.14 Inspector Sugumar, Thirumangalam Police Station, during the investigation of the case registered in Crime No.319 of 2007 on his file, arrested accused Jeyakumar at 5.30 p.m. on 27.6.2008 near Anna Nagar Railway Station and enquired him in the presence of P.W.5 Ambrose and another and recorded the confession statement given by him through which he came to know about the https://hcservices.ecourts.gov.in/hcservices/ involvement of accused Jeyakumar in the case in Crime No.974/2007 on the file of J.J. Nagar Police Station. Exs.P3 and P4 are the admissible portions of the confession statement. Accused Jeyakumar took him and the witnesses to his house and took and produced M.O.4 Knife hidden in the earth and P.W.14 Inspector Sugumar recovered the same under Ex.P21 Mahazar in the presence of the same witnesses. He also recovered M.O.1-series – Nine black beads from Malini, wife of accused Jeyakumar, under Ex.P5 Mahazar in the presence of the same witnesses. The mahazar witness P.W.5 Ambrose in his testimony has confirmed the arrest of accused Jeyakumar and based on the information given by him, M.O.1-series Nine Black Beads and M.O.4 Knife came to be recovered in their presence. 21. According to P.W.14 Inspector Sugumar, accused Jeyakumar on 28.6.2008 took him and the witnesses to the Pawn broker shop of P.W.6 Pincharam and M.O.2-series – 1 Golden Thali Pottugal & Three Gold Gundoos, measuring 10 gms were recovered under Ex.P6 Mahazar in the presence of the same witnesses and accused Jeyakumar further took them to the neighbouring Pawnbroker shop of P.W.7 Lakshman Ram and he recovered M.O.3 Gold chain under Ex.P7 Mahazar in the presence of the same witnesses and he sent accused Jeyakumar to judicial remand and sent the records to Inspector, J.J. Nagar Police Station. The mahazar witness P.W.5 Ambrose has also testified about the recovery of M.Os.2-series and 3 in their presence. 22. The leaned counsel for the accused/appellant pointed out the testimony of P.W.17 Dilli Babu and contended that the arrest of accused Jeyakumar on 27.6.2008 by P.W.14 Inspector Sugumar cannot be true. P.W.17 Dilli Babu has stated that accused Jeyakumar took on hire Ladder, Stool and Compressor from him on 28.4.2007 and there was a due of Rs.5,500/- and he and his wife went to the house of accused Jeyakumar on 12.12.2007 and asked for the payment of rent due and the wife of accused Jeyakumar assured to pay the same and after 12.12.2007, he was told that accused Jeyakumar was taken by police. 23. On the occurrence day, namely, on 12.12.2007, there was painting work going on in the Apartments and the accused was not fixed. Investigation was in progress. P.W.14 Inspector Sugumar during investigation in another case, landed on accused Jeyakumar on 27.6.2008 and only during the interrogation, his involvement in the present case came to light. There is nothing to suspect in the arrest of accused Jeyakumar as told by P.W.14 Inspector Sugumar and the contention of the learned counsel for the accused/appellant cannot be accepted. 24. The other contention of the learned counsel for the accused/appellant is that P.W.1 Lakshmi Narayanan in his Ex.P1 Complaint has stated that five sovereigns of Gold Thali and three sovereigns of Gold chain worn by his wife Jeyamala were missing, whereas M.O.2-series - One Gold Thali Pottu and Three Gold Gundoos, https://hcservices.ecourts.gov.in/hcservices/ weighing 10 gms, namely, 1½ sovereign, and M.O.3 – Gold chain, weighing 36 gms, nearly 4½ sovereigns, and there is material contradiction with regard to the weight of the jewels affecting the prosecution case. This contention is also devoid of merit. Few hours after the occurrence, P.W.1 Lakshmi Narayanan gave Ex.P1 Complaint informing the missing of jewels worn by his wife Jeyamala. One cannot expect the grief stricken husband to exactly state the weight of missing jewels. P.W.1 Lakshmi Narayanan in categorical terms has identified M.Os.1 to 3 jewels as belonging to Jeyamala and having been worn by her on the occurrence day. 25. P.Ws.6 and 7 also residing in the same locality in which accused Jeyakumar resides, namely, Villivakkam, and there is every likelihood of them knowing the accused. According to P.W.6 Pincharam, accused Jeyakumar came to his shop on 16.12.2007 and pledged M.O.2-series – Gold Thali Pottu and Three gold gundoos and he gave a sum of Rs.6,150/- and Ex.P8 is the relevant entry in the Pledge Book and he has further stated that on 22.12.2007 accused Jeyakumar again came to his shop and sold the said jewels and received a further sum of Rs.2,000/- from him and Ex.P9 is the entry for the same. 26. P.W.7 Lakshman Ram has