IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 03.03.2017 PRONOUNCED ON : 16.03.2017 CORAM:
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU AND THE HON'BLE DR.JUSTICE ANITA SUMANTH Criminal Appeal Nos.281, 298 of 2016 and 30 of 2017 Prabakaran .. Appellant/A.5 in Crl.A.No.281/2016 1.Subburaj
2. Thangaraj S/o Packiyanathan
3. Thangaraj S/o Subbukutty
1. Yesudass @ Dass 2.Mayandi .. Appellants/A.3, A.4 & A.6 in Crl.A.No.298/2016 .. Appellants/A.1 & A.2 in Crl.A.No.30/2017 Vs State represented by The Inspector of Police, Tirupur Rural Police Station, Tirupur. .. Respondent in all Crl.As.
Common Prayer:- Criminal Appeals filed under Section 374(2) Cr.P.C., against the judgment of the learned II Additional Sessions Judge, Tirupur in S.C.No.135 of 2014 dated 22.03.2016.
For Appellant in all the Crl.As : Mr.R.Sankarasubbu For Respondent : Mr.P.Govindarajan, in all Crl.As Additional Public Prosecutor
COMMON JUDGEMENT
(Judgment of the Court was delivered by S.Nagamuthu.J) The appellant in Crl.A.No.281/2016 is the 5th accused and the appellants in Crl.A.No.298/2016 are accused 3, 4 & 6 and the appellants in Crl.A.No.30/2017 are the accused 1 & 2 in S.C.No.135 of 2014 on the file of the learned II Additional District & Sessions Judge, Tirupur. The Police Report infact filed against a total number of 7 persons including these six appellants. The 7th person by name Mr.Aravindan was found to be a Juvenile and therefore, the case against him was dealt with separately by the Juvenile Justice Board. Thus, these six accused/appellants have been tried by the trial Court. The trial Court, framed charges under Sections 447, 396 & 302 I.P.C., against all the six accused/six appellants. By judgment dated 22.03.2016, the trial Court, convicted all the six accused under all the charges and sentenced each of them to undergo simple imprisonment for three months for the offence under Section 447 I.P.C., each of them to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for three months for the offence under Section 396 I.P.C., and each of them to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for three months, for the offence under Section 302 I.P.C. Challenging the said conviction and sentence, the appellants are before this Court with these Criminal Appeals.
2. The case of the prosecution, in brief, is as follows:-
The deceased in this case was one Mrs.Thangathal. P.W.1 – Mr.Palani is the husband; P.W.5 is the son and P.W.6 is the daughter-in-law of the deceased-Mrs.Thangathal. All these four were residing in the house at D.No.4/10, Vijayapuram, Gangeyan Main Road in Tirupur District. P.W.5 was running a banian factory at a distant place in the same town. P.W.1 is a retired officer from the Police Department. He was running a knitting company in the same town. On 01.08.2012, P.W.5, the son of the deceased had gone to his factory and his wife namely P.W.6 had gone to her parental home.
P.W.1 returned from the company at 5.00 pm on 01.08.2012 and after having food, at the house, he went back to his knitting factory and thus, from 5.00 pm onwards, the deceased alone was in the house.
3. P.Ws.2 & 3 are the neighbours of the deceased. According to them, on 01.08.2012, around 7.00 pm, when they were in their respective shops, near the house of the deceased, they heard the alarm raised by the deceased. Suspecting some danger to the deceased, P.Ws.2 & 3 rushed towards the house of the deceased. Initially, they thought that the deceased would have seen a snake behind the house and that is why she cried. Therefore, they straight away went to the backyard of the house. But, nobody was there. Then, they came to the front gate of the house and the electric light was then burning on the veranda of the house. At that time, they found A.1, 2 & 6, standing just near the entrance of the house of the deceased.
4. On seeing P.Ws.2 & 3, A.6 alerted A.1 & A.2 that some people had come. Therefore, all the three tried to flee away from the scene of occurrence. At that time, P.Ws.2 & 3 noticed four more persons (males) standing in front of the portico of the house of the deceased. There were also blood stains on the clothes of one of them. A.2 was holding a knife. P.Ws.2 & 3 shouted and rushed towards them. All the seven accused scaled down the compound wall of the house of the deceased and fled away from the scene of occurrence. P.Ws.2 & 3 gave a chase. But they could not catch any of them.
5. Then, P.W.2, informed P.W.1 about the occurrence over phone.
P.W.1 rushed to the house. He found the deceased in a pool of blood and she was no more. The jewels worn by her were also found missing. Then P.W.1 went to Tirupur Rural Police Station and made a complaint at 10.00 pm on 01.08.2012. On receipt of the said complaint, P.W.10, the then Sub Inspector of Police registered a case in Crime No.910/2012 for offence under Sections 302 & 396 I.P.C. Then, he forwarded both the documents viz., complaint (Ex.P.1) and F.I.R., (Ex.P.23) to Court.
6. Thereafter, P.W.11, the then Inspector of Police took up the case for investigation on 01.08.2012. On the same day, he went to the place of occurrence; prepared an observation mahazar and a rough sketch, in the presence of witnesses. He also recovered the blood stained earth and the sample earth from the place of occurrence. He held inquest on the body of the deceased and forwarded the same to hospital for post mortem.
7.P.W.9 – Dr.Kirubanand, conducted autopsy on the body of the deceased on 02.08.2012 and found the following injuries:-
“1.A curved with concavity towards face over right fronto parietal area of scalp 15 cm x 3 cm x Bone deep cut injury seen. On examination of the wound muscles, membranes not with right fronto parietal area of skull bone fractured.
2. Cut injury 6 cm x 2 cm x Bone depth over right side of face near the right eye.
3. Cut injury of size 10 x 3 x Bone deep over the occiput on examination muscle, skin and (n.c) cut, Bone-occipital areas of skull fractured entering cranial cavity.
4. Cut injury of size 30cm x 7cm x 10cm in the back of neck seen. On examination of the wound skin, muscle cut. Complete transection of the vertebral coloumn including the spinal cord at the level of c1 c2 seen in the wound.
5. Cut injury 10cmx2cmx5cm depth seen in front of the left side chest and neck. On examination of the wound left side carotid artery cut along with all major blood vessels and nerves in the left side around it.
6. Cut injury 3cmx0.5cmx soft tissues deep over left side chest.
7. Cut injury 10cmx2cmx Bone deep between second and third fingers of left hand. On examination fracture of the underlying Metacarpels and phalanges fractured (2,3 Metacarpels and prominal phalanges) and
8. Right hand cut injurty of size 5cmx3cmxthrough and through seen over the area between 4th and 5th fingers an examination underlying bones metacarpels (4th and 5th) and phalanges (prominal) fractured and the joints (Metaphalange joints) disrupted. Laceration of size 0.5cmx0.5cmx soft tissue deep seen in right thumb tip area.”
Ex.P.21 is the post mortem certificate and Ex.P.22 is the final opinion of P.W.8. The Doctor opined that the death of the deceased was due to shock and hemorrhage due to the multiple injuries found on the body of the deceased. He further opined that the said injuries would have been caused by the weapons like M.O.17 - knife and M.O.18 - Aruval.
8.P.W.11 during the course of investigation, collected the blood stained clothes from the body of the deceased and forwarded the same to Court. On 02.08.2012, at 10.00 pm, at Kasipalayam near a petrol bunk, P.W.11 arrested A.1 and A.2 in the presence of P.W.7 and another witness. On such arrest, they gave independent voluntary confessions, one after the other. In his confession, A.1 disclosed the place where he had hidden a gold bangle; a blood stained shirt and an aruval. In pursuance of the same, he took the Police and witnesses to the place of hide out and produced M.O.6 – gold bangle; Aruval (M.O.18); and the blood stained shirt (M.O.20).
P.W.11 recovered the same under a mahazar. In his confession, A.2 disclosed the place where he had hidden a gold bangle; a blood stained shirt and an aruval. In pursuance of the same, he took the Police and witnesses to the place of hide out and produced M.O.7 – gold bangle; Knife (M.O.17) and the blood stained shirt (M.O.19).
P.W.11 recovered the same under a mahazar. On returning to the Police Station, he forwarded both the accused to Court for judicial remand and also handed over the material objects to Court.
9. On 03.08.2012, at 9.30 am, at Mudaliarpalayam, P.W.11 arrested A.3 to A.6 and also the juvenile accused Mr.Aravindan. On such arrest, they gave independent voluntary confessions one after the other. In his confession, A.3 disclosed the place where he had hidden a gold chain and a cash of Rs.10,000/- In pursuance of the same, he took the Police and witnesses to the place of hide out and produced the gold chain (M.O.5) and the cash of Rs.10,000/- (M.O.13). In his confession, A.4 disclosed the place where he had hidden a gold thali chain and a gold thali kundu. In pursuance of the same, he took the Police and witnesses to the place of hide out and produced the gold thali chain (M.O.5) and the gold thali kundu (M.O.8). In his confession, A.5 disclosed the place where he had hidden a gold dollar and a cash of Rs.5,710/-. In pursuance of the same, he took the Police and witnesses to the place of hide out and produced the gold dollar (M.O.9) and the cash of Rs.5,710/- (M.O.13). In his confession, A.6 disclosed the place where he had hidden a hero honda motor cycle and an ear stud. In pursuance of the same, he took the Police and witnesses to the place of hide out and produced the Hero Honda motor cycle (M.O.21) and the ear stud (M.O.10). In his confession, the juvenile accused Mr.Aravindan, disclosed the place where he had hidden a gold muruku chain and a pair of gold kammal. In pursuance of the same, he took the Police and witnesses to the place of hide out and produced M.Os.11 & 12.
10. Based on the above materials, the trial Court framed charges as against all the accused as stated in the first paragraph of this judgment. The accused denied the same. In order to prove the case of the prosecution, on the side of the prosecution, as many as 12 witnesses were examined and 28 documents were exhibited, besides 24 Material Objects.
11. Out of the said witnesses, P.Ws.1, 5 & 6 are the husband, son and daughter in law of the deceased. They have stated that on the day of occurrence, the deceased alone was there in the house. After 7.00 pm, on receiving information from P.W.2, P.W.1 came to the house and found the deceased lying dead in a pool of blood. At that time, he found the gold jewels worn by the deceased were missing. Further, he found the jewels (M.Os.4 to 8) belonging to P.W.6 and cash of Rs.15,710/- (M.Os.13 & 14) which were kept in the bureau also missing. P.W.1 has spoken about the complaint made. P.W.1 has further stated that some jewels (M.Os.1 to 3) worn by the deceased were lying near the body of the deceased.
12. P.Ws.5 & 6 have identified M.Os.1 to 12 as the jewels either belonging to the deceased or belonging to P.W.6. P.W.7 has spoken about the preparation of observation mahazar and the rough sketch and the recovery of the material objects. P.W.8 has spoken about the arrest of the accused and the juvenile accused and also the recoveries of material objects. P.W.9 has spoken about the post mortem conducted. P.W.10 has spoken about the registration of the case. P.W.11 has spoken about the investigation done. P.W.12, an Expert from the Forensic Sciences Laboratory has spoken about the chemical examination conducted on the material objects.
13. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. However, they did not chose to examine any witness nor did they mark any documents on their side.
14. Having considered all the above materials, the trial Court convicted the appellants/accused as stated in the first paragraph of this judgment. Challenging the same, the appellants/accused are before this Court, with this Criminal Appeal.
15. When this appeal came up for hearing before this Court, the petitioners filed C.M.P.No.2191 of 2017 requesting the Court to adduce additional evidence. According to them, the accused should be permitted to examine the Reporter of “Daily Thanthi” news paper, Police Line First Street, Kannapiram Colony, Valipalayam, Tirupur as a defence side witness and to prove the Daily Thanthi news paper issue dated 03.08.2012.
16. After hearing the learned Additional Public Prosecutor, this Court allowed the said miscellaneous petition, by order dated 14.02.2017. Accordingly, Mr.Sivaraj, the Reporter of the Daily Thanthi, Tirupur was examined as D.W.1 before this Court on 28.02.2017. In his evidence, D.W.1 has stated that on 01.08.2012, he was one of the reporters of Daily Thanthi. In respect of the occurrence, in the instant case, he gathered the news for the said news paper. The news item, which he collected, in connection with the said incident was forwarded by him to the Editor of the said news paper. The said news was appeared in Daily Thanthi issue dated 03.08.2012 in the Coimbatore edition. A xerox copy of the said news paper carrying the said news has been marked in evidence subject to the undertaking of the learned counsel for the appellants to establish the admissibility of the same. That has been marked as Ex.D.1.
17. We have heard the learned counsel for the appellants and the learned Additional Public Prosecutor appearing for the respondent and we have also perused the records carefully.
18. This is a case based on circumstantial evidence. There can be no controversy over the fact that on 01.08.2012, the deceased alone was there in the house. She was last seen alive by P.W.1 at 5.00 pm. Around 7.00 pm, P.Ws.2 & 3, the neighbours of the deceased heard the distress call made by the deceased. Therefore, they rushed to the house of the deceased. The dead body of the deceased was found lying inside the house. Around 7.00 pm, it was again seen by P.W.1. The medical evidence has clearly established that the death of the deceased was due to shock and hemorrhage due to the multiple injuries found on the body of the deceased and these injuries would have been caused by the weapons like Aruval and knife. The prosecution has clearly established that the death of the deceased was due to homicide and that she died some time between 5.00 pm and 7.00 pm on 01.08.2012.
19. Near the dead body, M.Os.1 to 3, the jewels worn by the deceased were found lying. This has been spoken by P.W.1 as well as P.W.4. P.W.1 has categorically stated that M.Os.4 to 8 worn by the deceased were found missing and M.Os.9 to 11 which were kept in the bureau were also missing. He also stated that cash of Rs.15,710/- (M.Os.13 & 14) which was kept in the bureau also found missing. There is no reason to reject the evidence of P.W.1, in this regard. These jewels, M.Os.1 to 11 have been identified by P.Ws.1, 5 & 6. From these evidences, it has been clearly established that the material objects M.Os.4 to 12 and cash of Rs.15,710/- (M.Os.13 & 14) were also stolen away in the same occurrence, in which, the deceased was killed. In other words, the murder of the deceased and robbery had taken place, in one and the same occurrence.
20. Now the question is, “Who are the perpetrators of the crime?” In order to prove that these accused/appellants are the perpetrators of the crime, the prosecution relies on the evidences of P.Ws.2 & 3 and the recoveries of material objects. So far as P.Ws.2 & 3 are concerned, they are the neighbours of the deceased. They were running two shops somewhere near the place of occurrence. According to them, they heard the loud noise of the deceased. Therefore, they rushed to the house of the deceased believing that the deceased would have seen a snake behind her house hence, immediately, they went to the backyard of the house of the deceased first and there, they did not see anybody and then, they came to the front side of the house. At that time, they found A.1, A.2 & A.6 standing just at the entrance of the house. A.2 was holding a knife with blood stains and A.6 shouted at A.1 & A.2 by calling their names that people had come and therefore, all the three had fled away from the scene of occurrence. Four more persons who were in the warranda of the house also scaled down the compound wall and ran away from the scene of occurrence. P.Ws.2 & 3 have identified A.1, A.2 & A.6 alone and they have not identified the other accused.
21. The learned counsel appearing for the appellants would submit that the identification of A.1, A.2 & A.6 made by these two witnesses (P.Ws.2 & 3) for the first time in Court, cannot be given any weightage. We find a little force in the said argument of the learned counsel. On that score, we cannot reject the evidences of P.Ws.2 & 3 outright. From the evidences of these two witnesses, it is crystal clear that the occurrence had taken place some time around 7.00 pm, on the day of occurrence, inside the house of the deceased.
From the evidences of these two witnesses, it has also been established that the total number of persons who participated in the crime was 7. So far as the identity of A.1, A.2 & A.6 made by P.Ws.2 & 3 are concerned, the entire case of the prosecution rests upon the same. In our considered view, for want of test identification parade, we cannot place reliance on the identification of these three accused viz., A.1, A.2 & A.6 made by P.Ws.2 & 3, for the first time, in Court.
22. But here, there are other clinching evidences against these three accused (A.1, A.2 & A.6) also. Let us now go in to those evidences. P.Ws.7 & 11 have stated that A.1 & A.2 were arrested at 10.30 pm on 02.08.2012 at Tirupur Kasipalayam. From out of the disclosure statement voluntarily made by A.1, M.O.6 was recovered. The blood stained aruval (M.O.18) was also recovered from his possession, which contain human blood. The blood stained shirt (M.O.20) also recovered from his possession which also contain human blood.
23. Similarly, from out of the disclosure statement made by A.2, M.O.7 – gold bangle; Knife (M.O.17) and the blood stained shirt (M.O.19) were recovered. They contain human blood. Similarly, on the arrest of the other accused and on the basis of their disclosure statements made, the other gold jewels were recovered. The details of the other material objects have been narrated herein above. We find no reason to reject the evidences of P.Ws.7 & 11 who have spoken about the arrest and recovery of these stolen properties from A.1 and A.2. P.Ws.8 & 11 have spoken about the arrest of A.2 to A.6 and the recovery of stolen properties.
24. But, the learned counsel for the appellants would submit that the accused were taken into custody within 24 hours of the occurrence and the time, date of arrest as deposed by P.W.1, are not correct. He would further submit that no gold jewels were recovered from these accused. Thus, according to the learned counsel, no reliance could be made on the evidences of P.Ws.7,8 & 11. In order to substantiate his contention, the learned counsel has made reliance on D.W.1-Mr.Sivaraj. Mr.Sivaraj has stated that on 01.08.2012, he gathered news in respect of the occurrence in this case and he forwarded the same to the Editor of the said news paper. The said news appeared in the Daily Thanthi issue dated 03.08.2012. But, unfortunately, the original news paper has not been produced. Only a xerox copy of the same has been marked as Ex.D.1.
25. The learned Additional Public Prosecutor would submit that the said document being secondary in evidence, is not admissible in evidence for want of production of primary evidence. We find force in the said argument of the learned counsel. Law requires that if secondary evidence is to be admitted, it should be explained by the party concerned as to why the primary evidence chould not be produced. In this case, there is no explanation at all by the accused as to why the primary evidence namely the original news paper ( Daily Thanthi issue dated 03.08.2012) has not been produced.
Assuming that as a secondary evidence, Ex.D.1 could be taken into consideration, in our considered view, for other reasons, it has got no evidentiary value at all.
26.D.W.1 during questioning by the accused, has stated that he does not know personally about the arrest of the accused as reported in the news paper. Somebody told him that four assailants involved in the crime have been arrested. That was the message he gave to the Editor of the news paper which appeared on 03.08.2012. Thus, it is clear that the information gathered by D.W.1 would hit by hearsay rule as the person who gave the information has not been examined. Since, D.W.1 has categorically stated that he had not seen any of these accused either while arrested or in the custody, the news item based on his hearsay information is hit by hearsay rule and therefore, no evidentiary value could be given to the said evidence. If once, the evidence of D.W.1 is rejected, there is no other evidence on record, to doubt the case of the prosecution about the date and time of the arrest of the accused and the consequential recoveries of the stolen properties from out of the possession of the accused. From the evidence of these three witnesses viz., P.Ws.7,8 & 11, the prosecution has clearly established that soon after the theft, the accused were found in possession of these material objects (stolen properties), for which, no explanation was offered by them. Thus, we are inclined to raise a presumption as provided in Section 114 of the Indian Evidence Act, that these accused are the perpetrators of the crime. Since, the theft and the murder had taken place in one and the same occurrence, the further presumption arrived at by this Court is that these accused had committed the murder of the deceased and had stolen away the gold jewels belonging to the deceased as well as kept in the bureau. Though, the trial Court had failed to frame a charge by invoking Section 34 I.P.C., even in the absence of such a charge, since the accused were put on notice, no prejudice would be caused in convicting them for offences under Sections 302, 396 & 447 I.P.C. Therefore, we find no reason to interfere with the findings of the trial Court that these accused had committed offences under Sections 302, 396 & 447 I.P.C.
27. Now, turning to the quantum of punishment, the trial Court imposed only minimum punishment for the said offences which also does not require any interference at the hands of this Court. Thus, we find no merit at all in these Criminal Appeals.
28. In the result, the Criminal Appeals are dismissed thereby confirming the conviction and sentence imposed on the appellants by the trial Court in S.C.No.135 of 2014 dated 22.03.2016.
jbm Index:Yes (S.N.J) & (A.S.M.J.,) 16.03.2017 To
1. The Inspector of Police, Tirupur Rural Police Station, Tirupur.
2. The Public Prosecutor, High Court, Madras.
S.NAGAMUTHU.J., and ANITA SUMANTH.J., jbm Pre-delivery judgment made in Crl.A.Nos.281, 298 of 2016 and 30 of 2017 RESERVED ON:03.03.2017 PRONOUNCED ON: 16.03.2017 http://www.judis.nic.in