(Prayer: Appeals filed under Section 374 of the Code of Criminal Procedure against the Judgment of conviction and sentence, dated 30.30.2015, made in S.C.No.104/2014 on the file of the learned Principal Sessions Judge, Trichy District.)
S. Nagamuthu, J
1. Appellant in Crl.A.(MD)NO.18 of 2016 is the 1st accused and the appellant in Crl.A.(MD)No.296 of 2015 is the 2nd accused in S.C.No.104 of 2014 on the file of the learned Principal Sessions Judge, Tiruchy Division, Tiruchy. They stood charged for the offences punishable under Sections 120-B, 302 and 392 read with 397 IPC. After trial, the trial court found them guilty under Sections 302 and 392 read with 397 IPC and acquitted them from the charge under Section 120-B IPC. For the offence under Section 302 IPC, the trial court sentenced both the appellants/accused to undergo imprisonment for life and each to pay a fine of Rs.1000/-, in default to undergo rigorous imprisonment for a period of 6months and each of them to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1000/- in default to undergo rigorous imprisonment for a period of one month for the offence under section 392 read 397 IPC. Challenging the said conviction and sentence, they have filed the present appeals.
2. The case of the prosecution, in brief, is as follows:
(a)P.W.1 Hussain is a resident of Adhavathur Village, Srirangam Taluk, Trichy District. The deceased, in this case, Mrs.Bagadurin was the wife of P.W.1. They had three daughters, namely, Thaiyuba, Shakina (P.W.2) and Shamina (P.W.3). These three were studying in a local school. P.W.1 was doing vessel business and also supplying mineral water and he was having his shop at Jeeva Nagar, Fort, Trichy City. Both the accused were known to him, as the 1st accused was working as the driver of TATA Ace vehicle, owned by P.W.1 and the 2nd accused was the cleaner of the said vehicle. P.W.1 had Airtel Mobile phone with No.9944879343 and the deceased had a mobile phone with No.9600341216. It was the usual practice of P.W.1 to leave his house in the morning to go to the shop to run the business. It was also his practice to come for lunch to his house at 01.00 p.m., every day and again go back to the shop and return home, after the closure of the shop in the evening. Similarly, the children, who were studying in a local school, used to leave for the school at 7.00 a.m. in the morning and to return after the school hours, around 5.30 p.m.
(b)On 23.08.2013, as usual, all the three children had left for the school early in the morning at 7.00 a.m. P.W.1, similarly, went to his shop in the morning itself. Thus, the deceased alone was left in the house. She was wearing gold ear studs and a gold karugamani chain on her neck. As usual, around 12.00 noon, on 23.08.2013, P.W.1 returned home for lunch. He had brought chicken kuska (briyani) from a local hotel. P.W.1 and the deceased had lunch, with chicken kuska. Again leaving the deceased alone in the house, around 1.30 p.m., P.W.1 left to Somarasampettai Pallivasal and after prayer, he went to his shop.
(c)The children, namely P.Ws.2 and 3 and another, as usual, returned home around 5.30 p.m. They found the main doors of the house kept opened. When they entered into the house, they found the television set in switched on condition and also heard noise from the television set. Upon entering into the kitchen, they found the Gas Stove still burning and a vessel was there, but the deceased was found inside the house, lying dead. There were stab injuries on her neck and abdomen. There was a pool of blood, here and there, in the house. Shocked over the said scene, P.Ws.2 and 3 and another child raised alarm, which attracted the neighbours. P.Ws.4 to 6, who are the neighbours, rushed to the house of P.W.1. They found P.Ws.2 and 3 and the other child inside the house and they were crying and vailing. P.W.3 took the cellphone of the deceased and contacted P.W.1, who was in his shop. On getting information from P.W.3, immediately, P.W.1 rushed to the house around 6.00 p.m. He found the deceased lying dead and the gold jewels, namely, a pair of ear studs and a gold karugumani chain were missing. Immediately, P.W.1 went to Somarasampettai Police Station and made a complaint (Ex.P-1).
(d)P.W.21 N.Janakiraman, the then Special Sub-Inspector of Police, on receipt of the complaint from P.W.1, registered a case in Crime No.218 of 2013 under Sections 302 and 379 IPC and prepared an FIR (Ex.P-18). He forwarded Ex.P-1 and Ex.P-18 to the Judicial Magistrate Court No.5, Trichy, through a special messenger, and copies thereof to the higher police officials. Since the perpetrators of the crime were not known, it was so mentioned in the complaint. However, in the complaint, P.W.1 had duly mentioned about the missing of gold karugumani chain and a pair of ear studs.
(e)On receipt of FIR, P.W.22-C.Senthilkumar, the then Inspector of Police, took up the case for investigation. He went to the place of occurrence at 7.00 p.m., on 23.08.2013, prepared an observation mahazar (Ex.P-2) and a rough sketch (Ex.P-19), in the presence of P.W.8 and another. Between 8.00 p.m. and 10.00 p.m., P.W.22 conducted inquest on the body of the deceased and prepared an inquest report (Ex.P-20). Thereafter, P.W.22 sent the body for postmortem through P.W.19, Police Constable. He recovered bloodstaind cloth (M.O.12) and sample cloth (M.O.13), under a cover of mahazar, in the presence of same witnesses. He sent those material objects to court, under Ex.P-21, Form 95. He examined P.Ws.1 to 8 and some other witnesses and recorded their statements.
(f)At the request of P.W.22, Finger Print Expert (P.W.9) visited the place of occurrence. Before inquest was conducted, he made a thorough search in the house for chance finger prints. He found as many as three chance finger prints on the steel almirah kept in the house of P.W.1. P.W.9 marked the same as T1, T2 and T3, took photographs of the same and sent them to the Finger Print Bureau.
(g)P.W.12, Dr.Saravanan, conducted autopsy on the body of the deceased at 10.00 a.m. On 24.08.2013 and found the following injuries:
1)An obliquely vertical, gaping, stab injury 2 x 0.5 x 0.3 cm, on the upper third of right side of neck, 4 cm below the level of right mastoid process, its upper angle was blunt and lower angle was sharp; the direction of the injury was downwards, backwards and to the left.
2)An obliquely horizontal cut injury 11.5 x 0.5 cm x vertebral bone deep, on the front and both the sides of middle third of neck, it was placed 6 cm away from the midline of neck to the right side, 5.5 cm away from the midline of neck to the left; the edges of the injury were clean cut; on dissection the underlying subcutaneous soft tissues, neck muscles, nerves, blood vessels and cricoid cartilage were completely cut horizontally, with dark red extravasation of blood on the surrounding soft tissue. On further dissection, oblique incomplete cut fracture 2 x 0.2 x 0.1 cm, on front of body of C4 cervical vertebra with surrounding dark red extravasation of blood; thyroid cartilage and hyoid bone intact.
3)An obliquely horizontal cut injury 2 x 0.5 x 0.2 cm on the lower third of left side of neck; the edges were clean cut.
4)An oblique, gaping, stab injury 6.8 x 0.5 x 7.8 cm on the lower part of left side of chest, 5.5 cm away from the mid line of chest to the left and 19-22 cm below the level of left clavicle; its lower, inner angle was blunt and upper, outer angle was sharp; On dissection the injury was traversing obliquely and superficially through the underlying subcutaneous fat and ending with the floor on subcutaneous fat its direction was downwards and to the right.
Right upper limb:
5)An oblique cut injury 1.5 x 0.2 x 0.3 cm on the front of upper third of right thumb; the edges of the injury were clean cut.
6)Oblique cut injury 3 x 0.2 x 0.5 cm, on the front of upper third of right index finger with incomplete cut fracture of the front of shaft of underlying bone with surrounding extravasation of blood; the edges of the injury were clean cut.
7)An oblique, gaping, stab injury 5 x 0.5 x 14 cm on the upper third of right side of abdomen, 3.5 cm away from the mid line of abdomen and 12 13 cm above the level of right anterior superior iliac spine; its lower, outer angle was blunt and the upper, inner angle was sharp, it was traversing through the underlying subcutaneous soft tissues and muscles, and entered into the front of right lobe of liver and end with oblique stab injury 4.2 x 0.5 x 10 cm; the direction of the wound was backwards, upwards and to the left; on dissection of abdomen, dark red fluid and clotted blood 1270 ml within the abdominal cavity; c/s liver was pale;
Left upper limb:
8)An oblique gaping, stab would 1.1 x 0.2 x 0.3 cm on the back of upper third of left thumb;
9)Oblique chop injury 1.5 x 0.5 x 0.5 cm on the front of lower third of left index finger; is lower edge was overhanging and upper edge was beveling.
10)An obliquely horizontal cut injury 2 x 0.5 x 0.5 cm on the front of middle third of left ring finger; the edges of the injury were clean cut;
All the above mentioned injuries are ante mortem in nature.
Ex.P-11 is the postmortem certificate issued by P.W.12. He gave opinion that the death of the deceased was due to shock and haemorrhage due to multiple injuries found on the body. He further opened that the stab injuries could have been caused by a weapon like knife.
(h)After postmortem, P.W.19 collected the bloodstained clothes removed from the body of the deceased, namely M.O.1 Saree, M.O.2 blouse, M.O.3 inskirt, M.O.4 sofa spread and M.O.5 towel and handed over the same to P.W.22. P.W.22 recovered and sent them to Court, under Form 95 (Ex.P-22).
(i)On 24.08.2013, around 10.00 p.m., when P.W.22, along with policemen, was on routine vehicle check-up on Tiruchy-Thogamalai main road, near Irattai Vaikkal Palam, a TVS Apache Motor Cycle, bearing Regn.No.TN-45 AR 0814 was proceeding. P.W.22 intercepted the said vehicle. The vehicle was driven by the 2nd accused and the 1st accused was travelling as a pillion rider. On interrogation, it came to light that these two accused were the perpetrators of the crime in question. Therefore, P.W.22 arrested both the accused, in the presence of P.W.8 and another witness. While in custody, they made a voluntary confession statements, one after the other. The 1st accused was found in possession of two knives. P.W.22 recovered those knives from the possession of the 1st accused, as well as the motor cycle, under a cover of mahazar. The 1st accused disclosed that he had hidden the gold karugumani chain and gold ear studs in his house. In pursuance of the said disclosure statement, the 1st accused took the police party to his house and produced a gold Karugumani chain (M.O.6) and a pair of gold ear studs (M .O.7) and P.W.22 recovered the same under a mahazar. Then P.W.22 forwarded both the accused to Court for judicial remand. P.W.22 examined P.W.1 again and recorded his statement. At his request, material objects were sent for chemical examination. The report revealed that there were human bloodstains of ''B Group on all the material objects, including both the knives. P.W.22 collected medical records, examined the doctor who conducted autopsy and recorded his statement. On completing the investigation, he laid charge sheet on 31.10.2013 against both the accused.
3. Based on the above materials, the trial court framed charges against the appellants/accused as detailed in the first paragraph of this judgment. The appellants/accused denied those charges. In order to prove the charges, the prosecution examined as many as 22 witnesses, marked 27 documents, besides 13 material objects.
4. Out of the said witnesses examined, P.Ws.2 and 3 are the daughters of the deceased. They have stated that they had left for the school early in the morning at 7.00 a.m. and when they returned home at 5.30 p.m., they found their mother lying dead in a pool of blood and there were also injuries on her body. They have further stated that they found T.V. was still switched on condition and the volume of the T.V.was abnormal. P.W.1, the husband of the deceased, has stated that from the shop he returned home at 1.00 p.m., had lunch with the deceased and left home for the shop and in the evening, he received phone message from P.W.3 and returned home at 6.00 p.m. He has further stated that M.Os.6 and 7 were found missing from the body of the deceased. P.Ws.4 to 6 are neighbours and they have stated that upon hearing the alarm, they rushed to the house of the deceased and found the deceased lying dead with multiple injuries. P.W.7, residing in the house opposite to the house of P.W.1, turned hostile and did not support the case of the prosecution.
5. P.W.8 is the Village Administrative Office. He has stated that he witnessed the preparation of observation mahazar, rough sketch, and recovery of bloodstained cloth and sample cloth from the place of occurrence. He has also spoken above the arrest of the accused during vehicle check-up, disclosure statement made by the 1st accused, recovery of motor vehicle, knives and gold jewels. P.W.9 is the Finger Print Expert. He has stated that at the request of P.W.22, he visited the place of occurrence, thoroughly searched for chance finger prints and lastly found three chance finger prints on the steel almirah in the house of the deceased. He has further stated that he marked them as T1, T2 and T3, photographed them and forwarded the same to Finger Print Bureau. It is his further evidence that later on, he compared the admitted finger prints of the 1st accused and found that one of the chance finger prints, marked as T1, tallied with the finger prints of the 1st accused. Ex.P-8 is the Report of P.W.9, which contains enlarged photographs of the admitted finger print of the 1st accused and the chance finger print (T1) and also the reasoning sheet. 6.P.W.10 is the Assistant Engineer working in the Tamil Nadu Electricity Board. He has stated that there was no electricity failure between 1.00 p.m. on 23.08.2013 and 6.00 a.m., next day. This witness had been examined with a view to prove that television set was working on electricity. P.W.11 is the Police Head Constable. He has stated that as requested by the investigation officer, he brought police sniffer dog to the place of occurrence but, it proved futile. P.W.12 Dr.Saravanan has spoken about the postmortem conducted on the body of the deceased. P.W.13 is the Head Clerk of the Judicial Magistrate court and he has stated that he forwarded the material objects for chemical examination, as directed by the learned Judicial Magistrate. P.Ws.14 and 15 are independent witnesses. They have stated that on the date of occurrence, around 2.45 p.m., when they were passing through the house of P.W.1, they found the 2nd accused sitting on the motor cycle, bearing Regn.No.TN 45 AR 0814 and the engine of the motor cycle was running. They have also stated that the 1st accused was coming out from the house of P.W.1 and thereafter both of them left the place in the said motor cycle. Through the evidence of these witnesses, the prosecution has attempted to prove that the appellants/accused were found at or about 2.45 p.m. at the place of occurrence and fled away from there. P.W.16 turned hostile and he did not support the case of the prosecution. P.W.17 was examined to speak about the conspiracy. But, he has not identified these accused and thus his evidence has no use for the prosecution. P.W.18 has spoken about the photographs taken at the place of occurrence. P.W.19 is the police constable, who took the dead body for postmortem, identified the same and collected M.Os.1 to 5, removed from the body of the deceased and handed them over to P.W.22. P.W.20, police constable, has stated that he handed over FIR and Ex.P-1 complaint to the Court. P.W.21, Special Sub-Inspector of Police, has spoken about the registration of case, based on Ex.P-1 complaint. P.W.22 has spoken about the investigation of the case and filing of charge sheet.
7.When the above incriminating materials were put to the accused under Section 313 of the Code of Criminal Procedure, they denied them as false. The defence of the accused was a total denial. However, they did not examine any witness nor mark any documents.
8.Having considered all the above, the trial Court found both the accused guilty under Sections 302 and 392 read with 397 IPC, convicted them thereunder and sentenced as detailed in the first paragraph of this Judgment. However, the trial court acquitted them from the charge under Section 120-B IPC. Aggrieved by the same, the appellants are before this Court with these appeals.
9.We heard the learned counsel for the appellants and the learned Additional Public Prosecutor and we have also perused the records, carefully.
10.This is a case based on circumstantial evidence. In a case of this nature, the prosecution is expected to prove the circumstances projected by it beyond reasonable doubts and all such proved circumstances should form a complete chain, so as to unerringly pointing to the guilt of the accused and there should not be any other hypothesis which would be inconsistent with the guilt of the accused. Keeping this broad principle in mind, let us now analyse the evidence let in by the prosecution to prove the circumstances projected.
11.The first and the foremost circumstance is that on the date of occurrence, the deceased alone was left in the house. This fact has been spoken by P.Ws.1 to 3. P.Ws.2 and 3 have stated that as usual, on the date of occurrence, they left for the school in the morning at 7.00 a.m. and at that time, P.W.1 and the deceased were in the house. P.W.1 has stated that after P.Ws.2 and 3 had left for school, he left for the shop. He has further stated that around 1.00 p.m., as usual, he came to the house for lunch; he had lunch and around 1.30 p.m., he left for the shop again. Thus, the prosecution has clearly established that the deceased was left alone at her house, around 1.30 p.m., on the date of occurrence. From the evidence of P.Ws.1 to 3, it is also established that lastly the deceased was wearing M.O.6-Karugumani gold chain and M.O.7-a pair of gold ear studs.
12.The next circumstance is that when P.Ws.2 and 3 returned home at 5.30 p.m., they found the deceased lying dead in a pool of blood and there were injuries on her body. P.W.12, the doctor who conducted autopsy, has categorically stated that the death of the deceased was due to shock and hemorrhage, due to multiple injuries and he has further opined that those injuries could have been caused by a weapon like knife. Thus, the prosecution has clearly established that the death of the deceased was due to homicidal violence and the same had occurred between 1.30 p.m. and 5.30 p.m., at the house of the deceased. P.Ws.1 to 3 have further stated that at the time when they saw the dead body, M.O.6-Karugumani gold chain and M.O.7-a pair of gold ear studs were found missing from the body of the deceased. From these circumstances, in our considered view, the prosecution has clearly established that the perpetrators of the crime, who caused the death of the deceased, had stolen away M.Os.6 and 7 also. In other words, the persons who caused the death of the deceased have committed robbery also.
13.The next question that follows is as to who are the perpetrators of the crime? In order to prove the same, the prosecution relies on few circumstances. The first circumstance is the evidence of P.Ws.14 and 15. These two witnesses are independent witnesses and therefore reliance can certainly be made on their testimony. They have stated that around 2.45 p.m., when they were passing through the house of the deceased, the found accused No.2 sitting on the motor cycle and the engine of which was running and at that time they also found the first accused coming out from the house of the deceased and thereafter both of them went away in the said motor cycle. Though they have been cross-examined at length, nothing has been elicited to discard their testimony. So far as P.W.14 is concerned, it is true that these two accused were not previously known to him. Therefore, the argument of the learned counsel for the appellants is that identity of these accused was made by P.W.14 for the first time only in the court and therefore his evidence cannot be given any credit. But, we find no force in the said argument of the learned counsel for the accused, in view of the tacit evidence given by P.W.15, who knew both the accused, previously. He has also identified them in the court also. P.W.14 after all accompanied P.W.15. Therefore, there was no test identification parade conducted. Evidence of P.W.15 is substantive evidence, which would be sufficient to conclude that these two accused were found near the place of occurrence, at or about the time of the occurrence and they have also found them fleeing away from the scene of occurrence. In our considered view, this is the very strong circumstance against the appellants/accused to prove their involvement in the crime.
14.Then comes lifting of chance finger prints from the steel almirah kept in the house of the deceased. It is the evidence of P.W.9, the finger print expert, that he examined the entire house, thoroughly, for chance finger prints and at last, according to him, he found three chance finger prints on the steel almirah and he photographed the same, enlarged them and sent them to the District Finger Print Bureau. After the accused were arrested, finger prints taken from the first accused was sent to P.W.9 for comparison. P.W.9 compared and found that one of the chance finger prints lifted from the steel almirah, tallied with the finger print of the first accused. We find no reason to discredit this information of P.W.9, because his Report carries reasoning sheet. He has given vivid reasons as to why he came to the conclusion that one of the three chance finger prints lifted from the steel almirah kept in the deceased house tallied with the admitted finger print of the first accused.
15.A contention was raised by the learned counsel for the appellants that the person who took the admitted finger prints of the first accused has not been examined. In our considered view, such a contention cannot be raised at this length of time, because during the trial of the case, the fact that the admitted finger print of the first accused was used for comparison was not at all disputed. Thus, the admitted fact remains that finger print of the first accused was taken and the same was sent for comparison and on such comparison, it came to light that one of the chance finger prints, lifted from the steel almirah, tallied with the admitted finger print of the first accused. The first accused has no explanation to offer.
16.It is further argued before us by the learned counsel that the first accused was an employee of P.W.1 and therefore there would have been an occasion for him to touch the steel almirah. It is true that P.W.1 has admitted in his evidence that the first accused was employed under him. But, it is nowhere the case of the first accused before the trial court that on any previous occasion he entered into the house of P.W.1 and had an occasion to come into contact with the steel almirah. Simply because it is admitted that the first accused was employed under P.W.1, one cannot rush to the conclusion that the first accused would have entered into the house of P.W.1, earlier. Unless it is explained to the Court by the 1st accused as to what was the occasion for him to enter into the house of P.W.1, we cannot decide on mere surmises that the first accused would have entered into the house of P.W.1 and would have come into contact with the almirah. Non-explanation of this circumstance by the first accused is yet another strong circumstance against him, which, in our considered view, would itself sufficient to hold that he was the perpetrator of the crime.
17.Then comes the arrest of the accused. When P.W.22 was on routine vehicle check-up, these two accused have come in the same motor cycle, which was found in the possession of the accused at or about the time of occurrence by P.Ws.14 and 15. The said motor cycle was intercepted by P.W.22 and since it came to light that these two accused were the perpetrators of the crime, they were arrested. Then in the presence of P.W.8, the first accused gave a voluntary confession and from the disclosure made by him, M.O.9 knives were recovered from the possession of the first accused. Those knives were sent for chemical examination, which revealed that there were bloodstains of human 'B' group blood, which tallied with the blood group of the deceased. This would also indicate that these knives could have been used to commit the crime. We are not prepared to attach much importance for this circumstance. But, the recovery of M.Os.6 and 7 from the first accused cannot be disbelieved. Though P.W.8 and P.W.22 have been cross-examined at length, we find nothing on record to create even a remote doubt on their credibility, so far as this aspect is concerned. Thus, from the evidence of P.W.8 and P.W.22, we are of the considered view that the prosecution has clearly established that the first accused was found in possession of M.Os.6 and 7, which are the stolen properties. As provided in Section 114 of the Indian Evidence Act, since the first accused has not come forward with any explanation as to how he came possess these two stolen properties, naturally presumption arising out of the same is that he was the perpetrator of the crime. Of course, the said presumption is rebuttable and such a rebuttal could be made either by means of direct evidence or by means of circumstantial evidence, to the satisfaction of the court. But, the first accused has not at all rebutted such presumption by any means and therefore the said unrebutted presumption under Section 114 of the Indian Evidence Act would clearly prove that the first accused was the perpetrator of the crime and committed murder of the deceased as well as robbery.
18.From the above proved circumstances, we find that the the prosecution has clinchingly proved, beyond any reasonable doubt, that it was the first accused who murdered the deceased and committed robbery of M.Os.6 and 7 from the deceased, when she was alone in the house, around 2.45 p.m. on the date of occurrence.
19.So far as the second accused is concerned, we find that except the fact that the second accused was found outside the house of P.W.1, there is no other material to connect him with the crime. It is not known whether the second accused was aware of the fact that the first accused had killed the deceased inside the house and stolen the jewels. Therefore, from the above only circumstance that the second accused was seen along with the first accused, at or around the time of occurrence, it cannot be conclusively held that the second accused had any role to play in the crime and the trial court is not correct in coming to the conclusion that he is also guilty of the charges of murder and robbery and accordingly he is entitled for acquittal.
20.In view of the forgoing discussion, we hold that the prosecution has proved the guilt of the first accused beyond reasonable doubt, as rightly held by the trial court and we find no reason to interfere with the same. Now turning to the quantum of punishment, the trial court has imposed only very minimum and reasonable punishment on the first accused under both the charges and the same does not require any interference at the hands of this Court. Accordingly, Crl.A.(MD)No.18 of 2016 filed by the first accused is liable to be dismissed.
21.In view of the above,
(i)Crl.A.(MD)No.18 of 2016 filed by the first accused is dismissed, thereby confirming the conviction and sentence imposed on him by the trial court. The sentences imposed on him are to run concurrently. However, it is directed that the sentence already under gone by the first accused shall be given set off under Section 428 Cr.P.C., for the purpose of Section 433-A Cr.P.C.
(ii)Crl.A.(MD)No.296 of 2015 is allowed, the conviction and sentence imposed on the 2nd accused are set aside and he is acquitted of the charges levelled against him. He is directed to be set at liberty, forthwith, unless his presence is required in connection with any other case. Fine amount, if any, paid by him is directed to be refunded.