IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.4.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal No.827 of 2007 Mohan @ Mohanraj .. Appellant(Accused) Vs. State rep. by Inspector of Police Chitlapakkam Police Station Crime No.330 of 2003. .. Respondent(Complainant) Appeal against the judgment dated 4.4.2007 made in Sessions Case No.164 of 2006 on the file of Principal Sessions Judge, Chengapattu. For Appellant : Mr.E.J.Ayyappan For Respondent : Mr.N.R.Elango Addl. Public Prosecutor J U D G M E N T (Delivered by R.REGUPATHI,J.) The appellant is the sole accused in Sessions Case No.164 of 2006 on the file of the learned Principal Sessions Judge, Chengalpattu, whereunder the appellant was convicted for the offences punishable under Sections 302, 307 and 392 r/w 397 I.P.C. and sentenced him to undergo imprisonment for life under Section 302 I.P.C., rigorous imprisonment for seven years under Section 307 I.P.C. and rigorous imprisonment for ten years under Section 392 r/w 397 I.P.C. Aggrieved against the conviction and sentence, the present appeal has been preferred before this Hon'ble Court. 2. As per the charge, the appellant on 21.7.2003 at 4.00 p.m. entered into the residence of the deceased and P.W.1 and demanded payment of money for his expenses and since it was refused, caused injury on P.W.1, who is the uncle of the appellant aged about 70 https://hcservices.ecourts.gov.in/hcservices/ years at the time of occurrence and also the deceased, who is the wife of P.W.1, and in the result, the deceased succumbed to the injuries and P.W.1 sustained grievous injuries and in the course of the same transaction, the appellant committed robbery of gold necklace, four bangles and two silver key bunches and thereby committed the offences punishable under Sections 302, 307 and 392 r/w 397 I.P.C. 3. When the appellant was initially questioned, he denied the complicity of committing such offences and therefore, trial of the case was taken up. 4. The prosecution examined P.Ws.1 to 17 and marked Exs.P1 to P30 along with M.Os.1 to 14 to substantiate its case. 5.1. P.W.1 is the husband of the deceased. Both of them were staying alone on 21.7.2003 at 3.30 p.m. at their residence at Door No.18/A, Kalyanasundaram Street, Muthulakshmi Nagar, Chitlapakkam. P.W.2 Nandhagobi and P.W.4 Satheesh are the sons of the deceased and P.W.1. P.W.3 is the daughter-in-law of the deceased and P.W.1 and wife of P.W.2. P.Ws.2 to 4 went out of the residence at 9 a.m. to attend their job. It is the evidence of P.W.1 that the appellant entered into the residence opening the front door at 3.30 p.m. on 21.7.2003 and the appellant has stated that he has had his lunch when questioned by P.W.1. Thereafter, the appellant went to the upstairs portion of the house and returned back with a wooden cricket bat, M.O.1. When the appellant demanded money from P.W.1, it was refused. Thereafter, the appellant assaulted P.W.1 with M.O.1 cricket bat on his head and at that time, the deceased rushed to prevent the assault. The appellant assaulted the deceased also on her head, chest, leg and other parts with M.O.1 bat and the deceased fell down. Even thereafter, the appellant assaulted P.W.1 and he also fell down. The appellant thereafter entered into the room where a bureau was kept and opened the same. P.W.1 thereafter became unconscious. 5.2. P.W.3, the wife of P.W.2 and daughter-in-law of the deceased and P.W.1, returned from her school at 4.30 p.m. and found the house locked from outside. However, the noise of the TV was loudly audible and when she peeped through the window, she found the deceased and P.W.1 were lying with bleeding injuries. She raised noise and in the presence of the neighbours, break open the back door and entered into the house. The deceased with injuries on the head, chest, leg and other places found dead and P.W.1 was found with bleeding injuries on his ears and chin and found M.O.1 cricket bat nearby. The bureau was opened and her jewels, bangles and silver key bunch were found missing. Since P.W.1 was in a critical condition, she rang up to P.W.5, her uncle. An auto rickshaw driven by P.W.14 was arranged and P.W.1 was sent to the hospital for treatment. She has also made an attempt to inform the occurrence to her husband P.W.2, but she could not do so. https://hcservices.ecourts.gov.in/hcservices/ 5.3. P.W.2, son of the deceased and P.W.1, in his evidence has stated that on 21.7.2003 at 3.15 p.m. he has seen the appellant when he returned from his office and when questioned, the appellant stated that he came to the residence to meet him. At that time, the deceased and P.W.1 were present in the residence. When he came back from the office at 6.00 p.m., he saw a crowd collected in front of his house and he was informed by P.W.3 that the deceased and P.W.1 were assaulted and since the condition of P.W.1 was critical, he was sent to the hospital. She has also informed that the bureau in the house had been broken and jewels were found missing. 5.4. P.W.1, who was initially admitted in the Government Hospital, Chrompet, on the advice of the Doctor, was shifted to the Government Hospital, Chennai. P.W.4, another son of the deceased and P.W.1 and younger brother of P.W.2, corroborated the evidence of P.Ws.2 and 3 and stated that he came to the residence after receiving a telephone call from P.W.3, his sister-in-law and reached the Government Hospital, Chrompet. It is his further evidence that M.O.1 was kept in his room and the room was locked. The key of the lock was kept in a hook and it will be known only to persons who are frequently visiting the residence. He has also stated that the appellant used to stay at the residence on his own on previous occasions. 5.5. P.W.5, uncle of P.Ws.2 and 4, who on receipt of telephone call at 5.15 p.m. from P.W.3, went to the residence of the deceased and P.W.1 and it was informed by P.W.3 that somebody murdered the deceased and assaulted P.W.1. Seeing the critical condition of P.W.1, he has taken him to the Government Hospital, Chrompet with the help of P.W.14, auto driver. Since the condition of P.W.1 was critical, soon after the arrival of P.W.4 to the Government Hospital, Chrompet, P.W.1 was shifted to the Government Hospital, Chennai. Thereafter, he returned back to the residence of the deceased. At that time, the Investigating Officer prepared observation mahazar and he attested the same. 5.6. P.W.17, Inspector of Police, Chitlapakkam Police Station, on receipt of information, reached Government Hospital, Chennai at 6.40 p.m. on 21.7.2003, reduced into writing the complaint Ex.P1 given by P.W.1, returned back to the police station and registered a case in Crime No.330 of 2003 for the offences punishable under Sections 397 and 302. Ex.P19 is the printed FIR. Thereafter, at 9.30 p.m. he reached the scene of occurrence and caused the photographs to be taken through P.W.6, Photographer. M.Os.9 and 10 are the photographs and negatives. He also prepared Ex.P2 observation mahazar and Ex.P20 rough sketch and recovered M.O.1 cricket bat, M.O.6 bloodstained mosaic tile pieces, M.O.7 sample mosaic tile pieces and M.O.8 bloodstained white pillow cover under Ex.P3 in the presence of P.W.5 and Sivanandham. He conducted inquest https://hcservices.ecourts.gov.in/hcservices/ over the dead body of the deceased between 11.00 p.m. and 1.30 a.m. and prepared Ex.P21 inquest report in the presence of panchayatdars and also examined P.Ws.2, 3 and other witnesses and despatched the dead body for conducting post-mortem and further examined P.Ws.5, 6 and 14 and recorded their statements. In the hospital, he has examined P.Ws.1 and 4 and recorded their statements. He has also examined P.Ws.5, 6 and 14 and recorded their statements. 5.7. P.W.6 Dr.Umeshwari attached to Government Hospital, Tambaram at Chrompet, on receipt of requisition from P.W.17, conducted post-mortem on the body of the deceased and noticed the following injuries: A female body lies on the back with arms by the sides. Eyes closed. Bloody discharge from the nose present. (1) Lacerated injury behind the right ear 5cm x 4cm x bone deep. (2) Lacerated injury over the right side chin 5cm x 1cm x 3 cm. (3) Contusion over the left cheek and occipital region. On Dissection of Thorax: Pelvis right side fractured 3rd and 4th pelvis sternum fractured in the centre. Heart pale and contain 5ml blood. Liver pale. Lungs pale. Right side and left side posteriorly congested. Stomach contains blood clots and blackish undigested food particles. Intestine, spleen, kidneys pale. Trachea pale. Hyoid bone intact. Bladder contain 100ml urine. Skull bone – left side occipital bone fractured. Membranes lacerated and hematoma seen over the left occipital region and anterior lobe of the brain. She issued Ex.P9 post-mortem certificate. She has opined that the deceased would appear to have died of shock and haemorrhage due to injuries sustained. She has further opined that the injuries would have been caused by M.O.1 cricket bat. 5.8. On completion of the post-mortem, P.W.17 recovered M.O.13 bloodstained saree pieces and M.O.14 bloodstained petticoat of the deceased under Form 95 from Police Head Constable along with Ex.P22 Special Report. The material objects viz., M.Os.1, 6, 7, 8, 13 and 14 were despatched to the Court of Judicial Magistrate, Tambaram, for receiving chemical analysis report as per Ex.25. Ex.P26 is the Court's covering letter. 5.9. On 24.7.2003, P.W.17 has examined P.Ws.7 and 8 and recorded their statements. It is the statement of P.W.7 that he is working as Conductor in the Transport Corporation and he knows the appellant as he used to travel in his bus. It is his evidence that on 21.7.2003 at about 8.30 a.m. when he was in the bus depot, Ayanavaram, the https://hcservices.ecourts.gov.in/hcservices/ appellant met him and sought his assistance to go to the residence of the deceased. Since the appellant was not having money, P.W.7 paid Rs.10/- and when questioned, the appellant answered that he is going to meet P.W.1 and the deceased for receiving money. In the evening at 6.30 p.m., the appellant telephoned him and accordingly, they met near Noor Hotel, Ayanavaram and at the request of P.W.7, P.W.8, who is related to P.W.7 and working as car driver in a private concern, also joined for a party. Soon after the arrival of the appellant, P.Ws.7 and 8 asked him whether he has received money from P.W.1 and the deceased, for which he replied that he assaulted his aunt, the deceased and his uncle, P.W.1. with M.O.1 cricket bat. The deceased succumbed to those injuries and P.W.1 was lying unconscious. Further, it was stated that he has brought a gold necklace, four bangles and two silver key bunches and since he has no money, he requested P.W.7 to help him to pledge them and to get money. P.W.7 took the appellant to P.W.15, Pawn Broker and pledged the gold necklace and received Rs.5,000/-. Thereafter, at the request of the appellant, he arranged for the purchase of clothes for the appellant and two days later, he realised the blunder committed by him in helping the appellant and since he worried, on 24.7.2003 he went to the police station and gave a statement. Thereafter, on 5.8.2003, he has also given a statement before the learned Judicial Magistrate, Alandur. P.W.8 corroborated the evidence of P.W.7. 5.10. P.W.17 during the course of his investigation arrested the appellant on 26.7.2003 at 7.30 a.m. and recorded his voluntary statement in the presence of P.W.9 and Shanmughanantham. He has also recovered M.Os.3 and 4, silver key chains, M.O.5, covering bangles, M.O.11, bloodstained T shirt and M.O.12, jeans pant under Ex.P6 mahazar in the presence of P.W.9. He sent the material objects viz., M.Os.11 and 12 to the Court of Judicial Magistrate, Tambaram, for receiving chemical analysis report as per Ex.23. Ex.P24 is the Court's covering letter. He has examined P.W.15, Pawn Broker and recovered M.O.2 necklace under Ex.P7 in the presence of P.W.9. Exs.P16 and P17 are the pledge receipts. Thereafter, the appellant was remanded to judicial custody. Statements of P.Ws.9 and 15 have also been recorded. 5.11. P.W.17 sent Exs.P10 and P13 requisitions to the Chief Judicial Magistrate for recording statements under Section 164 Cr.P.C. and for conducting test identification parade respectively. P.W.12, the learned Judicial Magistrate, Alandur, on receipt of requisition, Ex.P11, forwarded by the Chief Judicial Magistrate, Chengalapttu, recorded statements of P.Ws.2, 7 and 8 and Rajaraman under Section 164 Cr.P.C on 5.8.2003 and Exs.P4, 5 and 12 are the said statements. P.W.13, the learned Judicial Magistrate, Ambattur, on receipt of Ex.P14, order from the Chief Judicial Magistrate, conducted test identification parade on 4.8.2003 at Central Jail, Puzhal, Chennai. P.W.2 correctly identified the appellant and Ex.P15 is the proceedings of the test identification parade. https://hcservices.ecourts.gov.in/hcservices/ 5.12. P.W.16 is the Medical Officer, who treated P.W.1 initially on 21.7.2003. P.W.4 was found along with P.W.1 and it was stated by P.W.1 that some unknown assailant assaulted him. He has noted down the following injuries found on P.W.1 and issued Ex.P18, Accident Register. "Injuries – dressed wound – neck and ear. Patient conscious H/o LOC present and oriented. Patient admitted in Ward (1)." P.W.10 is the Medical Officer, who continued treatment to P.W.1 and noted the injuries as per Ex.P8 casuality opinion form. "X-ray opinion : x-ray Skull-AP Lat X-ray findings : X-ray PNAS x-ray soft tissue neck x-ray cervical spine-AP Lat (Nc) with fracture Mandible." On 28.7.2003, P.W.4 voluntarily discharged P.W.1 and admitted him in the private hospital. Exs.P27 and 28 are the chemical analysis reports and Exs.P29 and 30 are the serologist's reports. 5.13. P.W.17, after examination of the witnesses and after receipt of reports from the Serologist and Medical Officers, filed the final report on 29.9.2004 against the appellant for the offences punishable under Sections 392, 397, 307 and 302 I.P.C. 6. When the appellant was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found against him in the evidence of prosecution witnesses, he denied the same and claimed innocence. On the side of the defence, D.W.1, Medical Officer attached to Government Hospital, Chrompet, has been examined. He has stated that P.W.1 was brought by P.W.5 on 21.7.2003 at 5.30 p.m. and P.W.1 was conscious and stated that he was assaulted with M.O.1 by some unknown person. Ex.D1 is the wound certificate issued by him. 7. The learned Principal Sessions Judge, Chengalpattu, on conclusion of the trial and after hearing the arguments advanced by both the sides, convicted and sentenced the appellant as aforesaid. Aggrieved by the same, the appellant has filed the present appeal. 8.1. The learned counsel for the appellant submits that the case has been taken on file for investigation after receiving a complaint from P.W.1 wherein it is positively stated that the deceased and P.W.1 were assaulted by an unknown person. While so, in the evidence, it is stated that the appellant, known person, who is closely related, entered into the residence, spoken to them and https://hcservices.ecourts.gov.in/hcservices/ thereafter, brought M.O.1 and assaulted them. Even in the Court at the time of trial, P.W.1 could not identify for want of clear eye sight. P.W.1 was aged 70 years at the time of occurrence. The evidence of P.W.1 cannot be taken as true in view of the reason that the earlier information given in the form of complaint he has clearly stated that he was assaulted by unknown assailant. Under such circumstances, the evidence before the Court cannot be taken as true. 8.2. The extra judicial confession allegedly given by P.Ws.7 and 8 cannot be accepted since their evidence is artificial and unnatural. As per the evidence of P.Ws.7 and 8, they have helped the appellant for pledging the jewels after committing the crime and further they have also participated in a party on the same day i.e. on 21.7.2003. Two days later, it is their statement that realising the blunder committed alleged to have went to the police station and gave a statement. Their conduct cannot be taken as natural and the extra judicial confession allegedly given by the appellant cannot be treated as a material to connect the appellant with the crime. 8.3. It is further submitted that the information regarding theft of the jewels has already been divulged through the evidence of P.W.7 on 24.7.2003 itself and under such circumstances, the arrest and recovery subsequently made on 26.7.2003 become inadmissible and the same cannot be taken as corroborative material for convicting the appellant. 8.4. P.W.2, son of the deceased, would not have visited his residence prior to the time of occurrence and the prosecution has not marked the out-pass for coming out from his office and under such circumstances, the evidence of P.W.2 cannot be taken as true. The evidence of P.W.1 cannot be taken as true since he has given contradictory version in Ex.P1 as well as in his evidence and under such circumstances, the material put forth by the prosecution is not sufficient to foist conviction on the appellant. 9.1. Per contra, the learned Additional Public Prosecutor submits that it is the categorical evidence of P.W.2 that he has seen the appellant at the residence viz., the scene of occurrence at the time when he came back from his office to get a file from his residence. Leaving the appellant, he went back to his house and when he returned back to his residence in the evening, he found that the deceased is dead. The appellant had free access to his residence since he is closely related. 9.2. The evidence of P.W.1 cannot be easily brush aside because of the reason that he has initially stated that the assailant is unknown. It is the evidence of P.Ws.2 to 5 that P.W.1 was unconscious and regained conscious only at the time when he was admitted to the hospital. Though the Medical Officers have stated https://hcservices.ecourts.gov.in/hcservices/ that he was conscious, he was not sufficiently fit enough to fix the assailant. That is the reason why the information that the assailant was not known was referred to in Ex.P18 accident register. Moreover, P.Ws.4 and 5 were present at the side of P.W.1 when the Doctor questioned P.W.1 and it is those witnesses who do not have knowledge at all about the occurrence have given such information to the Medical Officers. Thereafter, during the course of inquest, after examination of P.Ws.2 and others, the identity of the appellant was found out and it was also informed to P.W.1. After fully regaining conscious after three days, P.W.1 came to know that the unknown assailant is no other than the appellant and at the time when he gave evidence before the trial Court, he positively fixed the assailant as the appellant. 9.3. The extra judicial confession given by the appellant to P.Ws.7 and 8 cannot be brush aside and it is also corroborated by P.W.15, Pawn Broker. M.O.2 gold necklace was initially pledged in the name of P.W.7 on 21.7.2003 and subsequently the appellant visited again P.W.15 on 24.7.2003 for receiving Rs.5,000/- more and therefore, the entries found in Exs.P16 and 17 corroborated the testimony of P.W.7 in addition to the evidence of P.W.15. The appellant was arrested subsequently on 26.7.2003 and though the information about the pledging of the jewels has already been known to the Investigating Officer divulged from P.Ws.7 and 8, such statement has not been taken into account during the course of the trial since it was submitted to be inadmissible. However, the arrest of the accused and the production of the bangles and bloodstained clothes cannot be rejected from taking into account for the purpose of corroboration. The bloodstained in the bangles as well as in the clothes of the accused were sent for chemical analysis and it was found to contain the blood group of the deceased. Therefore, it is submitted on behalf of the State that the prosecution has established its case beyond reasonable doubts and that the conviction and sentence imposed by the Court below are reasonable and the appeal must be dismissed. 10. We have perused the materials available on record and heard the submissions made by both sides. 11.1. The appellant is no other than the sister's son of the deceased and he was having free access to the residence of P.W.1 and the deceased. The presence of the appellant at the residence prior to the occurrence was spoken to by P.W.2. Because of the advanced age and assault, P.W.1 lost his balance and could not divulge the assailant as appellant since he was in a critical and depressed condition. It is his evidence that he became unconscious soon after the occurrence. However, the Medical Officers, who treated P.W.1, have given opinion that he was conscious, but he was not in a position to ascertain as to the person who has committed the crime. Regaining conscious after three days, when information about the https://hcservices.ecourts.gov.in/hcservices/ assailant and his visit was divulged, he has confirmed the identity of the appellant. It is the evidence of P.W.4 that he used to keep M.O.1 under lock and key at his residence and only known persons will be knowing the place where the key of the room is kept. Under such circumstances, coupled with the evidence of P.Ws.2 and 4, we can safely presume the presence of the appellant at the time of occurrence. Even if we disbelieve the evidence of P.W.1, because of the contradiction in Ex.P1 and his evidence and giving diverge to his age and the critical condition at the time of occurrence, the presence of the appellant last seen in the company of the deceased cannot be easily brush aside. 11.2. The appellant met P.W.7 before and after the occurrence and it is only with the help of P.W.7, the jewels stolen from the scene of occurrence had been pledged at the pawn broker shop of P.W.15. It is also corroborated by the evidence of P.W.8. The extra judicial confession made by the appellant to P.Ws.7 and 8 forms a corroboration to the commission of the crime by the appellant. The evidence of P.W.15 also gives lending assurance to the evidence of P.Ws.7 and 8. Initially, the jewels were pledged for Rs.5,000/- in the name of P.W.7 accompanied by the appellant. Subsequently, on 24.7.2003, the appellant approached P.W.15 on his own and received Rs.5,000/- more and for both the parties entry has been made in the form of Exs.P16 and 17 by P.W.15. The evidence of P.W.15 and the receipts give ample corroboration to the testimony of P.Ws.7 and 8. Though the pledging of the jewels were known to the Investigating Officer on 24.7.2003 itself, the production of the material objects viz., the bangles and the bloodstained clothes of the appellant is admissible in evidence and the same can be taken as corroborative materials to substantiate the offence. The blood group found in the clothes of the appellant tallied with the blood group of the deceased and thereby connected the appellant with the crime. Failure to offer any explanation for the presence of the bloodstains in his clothes will be a lending assurance to the case put forth by the prosecution. 11.3. Admittedly, P.W.1 was critical soon after the occurrence and he was not in a good condition to divulge about the assailant and that is the reason why in Ex.P1 it has been stated as unknown assailant, which was recorded at 8.15 p.m. on 21.7.2003 and later inquest was conducted on the same day between 11.00 p.m. and 1.30 a.m. and at that time, through examination of P.W.2 and other witnesses, the identity of the appellant was known. Later on, this was informed to P.W.1, who during the course of his evidence before the trial Court, has positively stated that it was the appellant who had committed the offence. 11.4. Under such circumstances, we are of the considered opinion that the prosecution has substantiated its case against the appellant through uncontroverted materials oral and documentary and therefore, we do not find any reason