IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 03/10/2002 CORAM THE HONOURABLE MR. JUSTICE S. JAGADEESAN AND THE HON'BLE MR.JUSTICE MALAI.SUBRAMANIAN CRIMINAL APPEAL NO.398 of 1997 1. Ramesh (A.1) 2. R. Srinivasan @ Seenu (A.2) 3. Y. Narendran (A.3) 4. Sathish Babu (A.4) .... Appellants -Vs- State of Tamil Nadu rep. by Inspector of Police (Crimes) G-3 Kilpauk Police Station Chennai-10 ..... Respondent Appeal filed under Sec.397 Cr.P.C against the conviction and sentence passed in S.C.No.318/96 dated 2.4.1997 on the file of Principal Sessions Judge, Madras. For 1st appellants : Mr.K. Asokan Senior Counsel for Mr.P. Kumaresan For 2 to 4 appellants : Mr.V. Gopinath Senior Counsel for M/s M. Rajasekaran and Mr.K. Selvarangan For respondent : Mr.E. Raja Addl. Public Prosecutor :JUDGMENT MALAI.SUBRAMANIAN,J The appellants 4 in number are accused 1 to 4 in S.C.No.318/96 on the file of Principal Sessions Judge, Chennai. They were convicted to undergo imprisonment for life for offence punishable under Sec.302 read with 34 IPC; to undergo 7 years R.I for offence punishable under Sec.397 read with 34 IPC; to undergo 7 years R.I and to pay a fine of Rs.1,000/-, in default to suffer R.I for 3 months for the offence under Sec.449 IPC and to undergo 7 years R.I and to pay a fine of Rs.1,0 00/-, in default to suffer R.I for 3 months for offence punishable under Sec.201 read with 34 IPC, on the allegation that on 10.5.95 at about 3.00 or 3.30 p.m they trespassed into the house of the deceased Suseela Ranganathan with intent to commit robbery and with intent to commit her murder and after causing her death, took away 295.955 grams of gold jewels, 13 silver coins, 2 ladies watches and 3 key bunches and thereafter packed the dead body of Suseela Ranganathan and transported the same in a Fiat Car bearing Registration No:TTU – 4117 to the railway track in between Chetpet and Nungambakkan and placed the same on the railway track so as to make it appear that it is a run over case. The brief facts necessary to dispose of the appeal are as follows: 2. The deceased Suseela Ranganathan was a resident of No.125, R.B.I Quarters, Kilpauk and she was working as Grade.I Officer in Reserve Bank of India along with P.W.3. On 10.5.95 she went to the Bank and returned to the quarters and thereafter she was not seen alive. P.W.1– K.A. Ramasamy, Sambandhi (rk;ge;jp) of the deceased went to the quarters of the deceased at about 6.00 a.m on 15.5.95 to ascertain whether she was in the quarters because P.W.2 – her sister from Trichy complained to him that there was no response when they rang up to the deceased. He found the quarters locked. He went to the Office and enquired and found that she was absent after 10.5.95. He then passed on this information to Trichy. 3. On 17.5.95 he went to G-3 Police Station and gave a report Ex.P.1 to P.W.41 – Sub Inspector of Police, who registered a case in Cr. No.829/95 under the caption "woman missing". Ex.P.43 is the printed First Information Report. P.W.41 proceeded to the quarters of the deceased along with P.W.1 and found the quarters locked. After ascertaining that a mutilated body of a female was kept in the mortuary of Government General Hospital, Chennai, both of them went there, where he identified the body of Suseela Ranganathan. No jewels were found on the body. 4. In the meantime, P.W.6, who is the motorman (Driver), who took the electric train at 10.5.95 at 11.55 p.m from Beach Station, while reaching Nungambakkam, saw some obstruction in the railway track 100 feet away and though he applied break, he could not control the train and the same ran over on the body of a lady and stopped 150 meters away. He then after stopping the train, came with a torch light along with the Guard and found a lady lying dead. After clearing the body, he took the train. The Station Master presented a complaint to Egmore Railway Police and the same was registered in Cr.No.456/95 under Sec.174 Cr.P.C at 7.00 a.m on 11.5.95 by P.W.24 – Woman Head Constable of Egmore Railway police Station. The First Information Report is Ex.P.15. P.W.24 went to the place, where the body was lying, prepared Ex.P.10 – observation mahazar and drew rough sketch Ex.P.16. She also caused the dead body to be photographed. She then held inquest on the dead body and prepared Ex.P.17 Inquest report. Thereafter, the body was sent to Government General Hospital for autopsy with a requisition Ex.P.21. 5. P.W.30, Dr.C. Manohar, Assistant Professor, Forensic Medicines, Madras Medical College, Chennai conducted post- mortem on the body of Suseela Ranganathan, aged about 57 years on 18.5.95 at about 2.45 p. m and found the following injuries: "1. Defacing, crushing injury involving head, face and neck and exposing the base of the cranial cavity; the scalp was torn irregularly with multiple comminuted fractures of the vault of the skull of varying sizes with irregular displacement bruising seen in some segments of the ectocranium and some areas of the sub scalpal region; the base of the skull with the facial bones was comminuted into multiple segments with irregular displacement and embedded into and distorted soft tissue of face; small quantity of liquified brain matter seen in the cranial cavity; the median structures of the front of the neck were not found. The cervical vertebra was found disrupted with communition and found embedded in the soft tissue of the back of the neck. 2) A lacerated wound with marginal bruising with abrasion of 16 x 10 cm over right shoulder which was partially amputated from right shoulder joint exposing the joint cavity with communition of upper end of shaft of the humerus with bruising around the soft tissue and on the surface of the fragments. 3) Partially amputation of left shoulder joint which is partially attached with shoulder joint through a tag of skin; the margin are bruised; fracture of shaft of left humerus into many pieces with laceration of surrounding soft tissue. 4) A partial avulsion of right hip joint with extruding of right hip bone through the lateral border of the right buttock and thigh with disarticulation of right sacr (torn) joint and pubic symphys is with fracture of public bone; the (torn) the skin were abraded with isolated bruising (torn) ..... 5) Lower quadrant of both gluteal region and perineal region lacerated 10 x 16 x 8 cm. 6) Reddish abrasions: right supra clavicular region 18 x 10 cm; on left side of chest on mid clavicular line 12 x 12cm; on left lower costal margin 6 x 3 cm; on right hypochondrium 6 x 3 cm. 7) Fracture of 2 to 5 ribs at mid clavicular line on right side with intercostal bruising. 8) Fracture of 3 to 7 ribs at mid clavicular line on left side with intercostal bruising. 9)Fracture of middle third of both tibia and fibula on right side: Deeper muscles are exposed out; Margins are bruised. 10) Fracture middle third of left tibia and fibula without bruising in the surrounding soft tissues. 11) Fracture of lower third of femur without bruising in the surrounding soft tissues. HERT: Cardiomegaly. Hypertrophy of all the chambers of the heart coronaries patent. LUNGS: Early decomposition Stomach: Empty Mucosa-nil abnormal BLADDER:Empty uterus :Absent All other internal organs were found early decomposition changes". He issued Ex.P.22 Post-Mortem Certificate with an opinion that the deceased died of multiple crush injuries. 6. Meanwhile, P.W.14, who was working as a Plumber in the Railways and residing in Railway Quarters at Chetpet noticed a White Fiat Car-M.O.28 stationed near the quarters from 10.5.95, went to Chetpet Police Station on 16.5.95 and gave a report Ex.P.5. P.W.28 – Sub Inspector of Police, Chetpet Police Station registered a case in Cr.No.648/9 5, prepared Ex.P.18 printed First Information Report, went to the place and found the Car. He also prepared Ex.P.19 – Observation Mahazar and seized the Car under Ex.P.20 mahazar. One pillow in the car was also seized under Ex.P.2 mahazar. M.O.37 Beer Bottle found inside the car was seized under Form 95. P.W.29 Inspector of Police, Chetpet took up investigation in the case, ascertained the owner of the Fiat Car and questioned P.W.19, the father of the 1st appellant and then forwarded the car to the Court, since he came to know that a case was registered in G.3 Police Station. 7. P.W.2 – sister of the deceased came from Trichy and identified the body. P.W.3, the colleague of the deceased also identified the body. P.W.4, a doctor, who is a friend of the deceased and P.W.5, the caretaker of the Reserve Bank of India Staff Quarters also identified the body of the deceased. P.W.41 – Sub Inspector of Police after ensuring that the dead body found in the mortuary of the Government General Hospital was that of the deceased Suseela Ranganathan, went to Egmore and questioned the Railway Police and summoned P.W.31 – Finger Print Expert, who was taken to the quarters of the deceased. P.W.31 lifted three finger prints from an iron safe and gave markings J.1, J.2 and J.3 to them. They were also photographed. M.O.38 are photographs. Finger prints were compared with the prints taken from the fingers of the deceased. The left thumb impression of A.2 tallied with one impression. P.W.41 ascertained that after 10.5.95 the deceased did not go for work. On 19.5.95 after coming to know from Chetpet Police that the owner of the car is the father of the 1st accused, went to the house of the 1st accused and on seeing P.W.41, the 1st accused took to his heels. He was chased and apprehended and when questioned, he gave a statement and then produced M.O.1 series – a pair of gold bangles and the same were seized under Ex.P.12 mahazar. The 1st accused was arrested, brought to the police station and P.W.41 gave a Special Report Ex.P.44. 8. P.W.42 took up investigation. He then examined P.Ws.22 and 31 and recorded their statements. On the strength of the statement of the 1st accused, he altered the crime to one under Sec.120-B, 302 and 38 0 IPC. He prepared Express Report Ex.P.45 and sent the same to the Court. A.1 took P.W.42 and his party and pointed out 2nd, 3rd and 4th accused in Kasi Chetty Street and they were arrested and interrogated. The 3rd accused Narendran gave a statement in the presence of P.W.35, the admissible portion of which is Ex.P.46, in which he had stated that he had left a ring, a gold chain, a pair of diamond ear studs and a key bunch with his friend P.W.20 – Baskar and a pair of bracelets (f';fzk;) were left with another friend Mr. Lakshmana Rao - P.W.11 . The 4th accused gave a statement, the admissible portion of which is Ex.P.47. He produced a pair of diamond studs M.O.21 and the same were seized under Ex.P.30 mahazar. Then the statement of the 2nd accused was recorded, the admissible portion is Ex.P.48, in which he stated that he had kept the jewels in a bag at No.87, R.B.I quarters belonging to P.W.10- Subramaniam. 9. P.W.42 and the witnesses went to the house of P.W.20 – Baskar and recovered M.Os.16,18,20 jewels and 3 key bunches M.O.44 and the same were seized under Ex.P.11 mahazar. P.W.42 examined P.W.20 Baskar and recorded his statement. Then he returned to the police station. On 20.5.95 at about 9.30 he went to the quarters of the deceased and prepared Ex.P.49 rough sketch. At about 12.00 p.m, he took the deceased to the place, where the dead body was found and seized a small rope. At about 1.30 p.m, pursuant to the statement of the 2nd accused, P.W.42 went to No.87, R.B.I Quarters and questioned P.W.10 – Subramaniam, who handed over a bag which contained M.Os.1 to 19 jewels and the watches and the same were seized under Ex.P.9 mahazar. P.W.10 was also questioned by P.W.42 and a statement was recorded from him. Suspecting the appellants to be old offenders, their finger prints were taken and sent to the Finger Print Bureau. P.W.31 compared two other finger prints lifted in the quarters of the deceased with the finger prints of the deceased. He found the finger print marked J.3 tallying with the finger print of the 2nd accused Srinivasan. He gave a report Ex.P.25. 10. P.W.42 searched for P.Ws.37 and 38 (approvers), but could not apprehend them. On 28.5.95 he examined P.W.31 and some other witnesses. On 29.5.95 at about 11.00 p.m, he arrested P.Ws.37 and 38 and questioned them. They wanted to give statement before the Court and therefore, they were produced before the Court for recording their statements. A requisition was also given to the Chief Metropolitan Magistrate, Madras to record their statements under Sec.164 Cr.P.C. The Chief Metropolitan Magistrate gave a direction through Ex.P.36 to P.W.39, to IV Metropolitan Magistrate, Chennai to record the statement of P.Ws.37 and 38. Accordingly, he recorded the same. Thereafter, pardon was tendered to them. 11. P.W.42 examined the witnesses on various dates viz., 16.6.95, 24 .6.95, 25.6.95, 26.6.95 and 7.7.95. He also examined some witnesses on 27.7.95. On 1.8.95 he examined P.Ws.24 and 25 and recorded their statements. He seized blood stained saree of the deceased as produced by the Railway Police, who seized the same in Cr.No.456/95 and the saree was sent to the Court. He also gave a requisition to send the blood stained pillow and other M.Os for Chemical analysis. On 8.8.95 he went and examined Dr.C. Manokar – P.W.30 and recorded his statement. On 10.8.95 he examined P.W.21 and others. After completing investigation, he filed final report against all the four accused punishable under Secs.302, 451, 409, 397 and 201 read with 34 IPC. On 31.10.95 he produced the jewels before the Court. On 1.11.95 he produced the key bunches also before the Court. Since P.Ws.37 and 38 who are originally arrayed as accused Nos.5 and 6, turned as approvers, an amended Charge Sheet was filed on 11.2.96 against these four accused. 12. When the accused were questioned under Sec.313 Cr.P.C, their plea was one of denial. No witnesses were examined on their side. 13. There is no dispute that Suseela Ranganathan, the deceased in this case was working as Grade-I Officer in Reserve Bank of India and was staying in No,.125, RBI Quarters, Kilpauk. There is also no dispute that the deceased was not seen alive after 10.5.1995 since according to P.W.3, a co-worker, the deceased was last seen only on 10.5.1995 . After the body of the deceased was sent to mortuary in General Hospital, P.W.1 - "Sambandhi" of the deceased, P.W.2 - elder sister of the deceased,P.W.3 a co-worker, P.W.4 a family friend of the deceased and P.W.5 a resident of RBI Quarters, identified the dead body as that of Suseela Ranganathan. Insofar as this identity of the body, a contention was made by the learned senior counsel Mr.K. Asokan, appearing for the 1st appellant that Ex.P.15 the complaint lodged with Railway Police, Egmore by the Guard who was in charge of the electric train which ran over the body, reads that a female aged about 25 years who suddenly trespassed was knocked down and killed, whereas the deceased was said to have been aged about 57 years as per Ex.P.22 Post Mortem Certificate. There is no evidence that besides the deceased there was another body found on the railway track on 11.5.95. The only question is whether the age of woman, who died, is 25 years as stated in Ex.P.15 or 57 years as found in the post mortem certificate Ex.P.22? 14. Insofar as this aspect is concerned, the relatives and friends of the deceased viz., P.Ws.1 to 5 have identified the body as that of Suseela Ranganathan and their case is that she was aged about 57 years. On the contrary though in Ex.P.15 a female aged 25 years was said to have been knocked down and killed by train, the person, who lodged the complaint, on which Ex.P.15 was registered has not been examined in Court. Ex.P.15 reveals that it was signed by one N. Vijayashankar and he has not been examined in Court. P.W.6 – the driver of the train alone was examined to prove the fact that the train ran over a female. He did not speak about the age of the woman. There is absolutely no evidence to indicate as to who informed the author of Ex.P.1 5 regarding the age of the dead body. In view of this discussion, we are of the view that there is no dispute with regard to the age of the deceased and there is no dispute with regard to the identity of the deceased and therefore, we hold that the prosecution has established that the body found on the track was only that of Suseela Ranganathan, aged about 57 years. 15. Insofar as the cause of death is concerned, the prosecution case is that all the four appellants caused the death of Suseela Ranganathan by strangulating her and thereafter removed the body from the quarters to the Railway track and then placed the same over the railway track so as to appear that the death was caused due to run over by the train. The Doctor – P.W.30 who did autopsy on the body of Susseela Ranganathan found amputations, lacerations, fractures and crush injuries and therefore, he gave an opinion that the deceased died of multiple crush injuries. When questioned by the defence in the cross examination, he replied that there was no occasion for him to find out whether death could have been caused by asphyxia. Though it is the duty of the prosecution to have elicited from the doctor that death could have been caused due to asphyxia , the defence lent its hand by questioning the doctor as to whether the death could have been caused due to asphyxia, probably anticipating a negative answer; but the doctor replied that there was no occasion to look into that aspect, most probably because the body was mutilated, crushed and there were so many fractures on the body. Naturally when one looks at the body which was run over by the train with so much of fractures, broken limbs, amputations and crush injuries, immediate opinion that could be formed is that death was due to crush injuries. That is how the doctor also gave his opinion. Though cause of death usually is established by medical evidence, in cases of this nature, the Court has to take into consideration the surrounding circumstances also to find out the real cause of death. What was the necessity that compelled the deceased to go to the railway track and jump before the running train if it is the case of defence that the deceased could have jumped on the track in front of a running train? Secondly there is the evidence of P. W.7 – the watchman of Reserve Bank quarters to prove that at about 11.30 p.m on 10.5.95 a white colour fiat car went out side the gate and the 3rd accused was driving the car while 1st, 2nd and 4th accused were seated inside along with two other persons. The 3rd point is that the said white colour fiat car was found stationed near the railway colony by the side of the house of one Harikrishnan as per Ex.P.20, rough sketch drawn by P.W.28 – the Sub Inspector of Police, Chetpet Police Station while investigating into a complaint lodged by P.W.14, the first information report being Ex.P.18. There is no explanation from any of the accused as to how the said car belonging to the father of the 1st accused came to be seen near the railway track by the side of the railway quarters. Taking into consideration all these aspects and also in view of the fact that the doctor who did autopsy could not find out whether the death was due to asphyxia because of the mutilated nature of the body, we hold that the deceased Suseela Ranganathan died on account of homicidal violence. Corpus delicti can be proved by the production of the dead body or even by the circumstances proved by the prosecution. Though in this case, the body has been produced, still the cause of death may be due to asphyxia also, since according to the doctor, he had no occasion to probe into that fact. If the doctor would have answered that the death could not have been by asphyxia, the matter is different. The answer was very carefully made whereby he said that there was no occasion to look into that aspect at all. The prosecution ought to have probed further to elicit from the doctor certain answers, but any how even assuming that the deceased was crushed to death by train according to P.W.30, still the proved circumstances in this case about the involvement of the accused 1 to 4 clearly indicate that the body of the deceased should have been placed only by them on the railway track after murdering her. 16. Though the prosecution case as per the 2nd charge is that the 1 st and 3rd accused strangled the deceased with the help of a rope while 2nd and 4th accused caught hold of her, in the absence of any eye witness account, the specific overt acts of each accused should not have been mentioned in the charge, but the charge that all the four accused committed murder of the deceased and therefore, liable to be convicted under Sec.302 read with 34 IPC cannot be assailed on the ground that the specific overt acts were attributed to each of the accused in the charge. This case rests purely on circumstantial evidence. In the absence of any eye witness to speak about the overt act of each accused, the Courts while framing charges but are tempted to look into the statements of the accused recorded by the police or recorded under Sec.164 Cr.P.C. to attribute the overt acts of each accused. If 161 Cr.P.C statement of an accused recorded by the Judicial Magistrate as a confession is found on record, that piece of evidence being admissible can be looked into for that purpose. But in this case none of the accused 1 to 4 have given any statements much less confession statements to the Judicial Magistrates. Therefore, the Court ought not to have framed the 2nd charge by distributing the overt acts to each of the four accused merely on the statement recorded from them under Sec.161 Cr.P.C. Because of these lapses on the part of investigating agencies while filing final reports and on the part of the Courts while framing charges, the real accused shall not be allowed to escape resulting in failure of justice. 17.The learned senior Counsel appearing for the 1st appellant vehemently argued that as per Ex.P.15, the first information report lodged by the Station Master, a female aged about 25 years suddenly trespassed, knocked down and killed and therefore, though there is difference of age, there is every likelihood of the deceased jumping in front of the approaching train. As we have already stated, the person who lodged the first information which led to the registration of Ex.P.15 was not produced before the Court. As a matter of fact, it was P.W.6 – Motorman who alone had seen the body of the deceased lying on the track. He had only stated that some 100 meter away he was able to notice some obstructions on the railway track and immediately he applied the break. His further evidence is that the train did not stop all of a sudden, but it could stop only after running over the body at a distance of 150 meters. This evidence of P.W.6 only indicates that he was able to see obstructions 100 meters away when he was driving the train. Though he