Appeals filed against the order dated 30.9.2008 passed in S.C. No.115 of 2008 on the file of the Additional District and Sessions Judge, Fast Trck Court 4, Coimbatore at Tiruppur.
Crl.A. No.439 of 2009 has been filed by the first accused and Crl.A. No.818 of 2008 has been filed by the second accused, challenging the judgment dated 30.9.2008 passed by the learned Additional District and Sessions Judge, Fast Trck Court 4, Coimbatore at Tiruppur in S.C. No.115 of 2008, whereby the first accused stood charged, tried and found guilty for the offences under Sections 392 and 302 of the Indian Penal Code and sentenced to undergo Rigorous Imprisonment for seven years and to pay a fine of Rs.1,000/- in default to undergo Rigorous Imprisonment for three months under
Section 392 of the Indian Penal Code and to undergo life imprisonment and to pay a fine of Rs.2,000/- in default to undergo rigorous imprisonment for six months and second accused stood charged, tried and found guilty for the offences under Sections 392 read with 109 and 302 read with 109 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for three months for the offence under
Section 392 read with 109 of the Indian Penal Code and to undergo life imprisonment and to pay a fine of Rs.2,000/- in default to undergo rigorous imprisonment for six months for the offence under
Section 302 read with 109 of the Indian Penal Code and both the aforesaid sentences would run concurrently.
2. The short facts necessary for the disposal of the case can be stated thus:-
(i) P.W.1 is the grandson and P.W.3 is the granddaughter of the deceased Pappammal, who was living at Palaiyakadu, Tiruppur in one of the seven houses situated in a row. P.W.4 was occupying one of the houses as tenant. The accused 1 and 2, who were living as husband and wife, were occupying one of the houses temporarily as tenants. The second accused used to visit Pappammal's house and chat with her.
(ii) On the date of occurrence i.e. on 27.2.2006, the mother and sister of P.W.1 went outside and returned home by 6 p.m. When P.W.4 was at home at 2 p.m., he found the second accused in the company of the deceased. After P.W.2 came back, P.W.3 told him that the house is closed and on suspicion, P.Ws.2 and 3 went inside and found the dead body of Pappammal. All her jewels were robbed. Thereafter, intimation was given to P.W.5, a close relative, who came to the place of occurrence and drafted the complaint Ex.P1, after ascertaining the facts. P.W.1, along with P.W.5, went to the police station and gave a report to the Inspector of Police and on the strength of the same, a case came to be registered in Crime No.356 of 2006 for the offences under
Sections 392 and
302 I.P.C. Ex.P11 First Information Report was sent to the Court.
(iii) P.W.14 Inspector of Police took up investigation and proceeded to the place of occurrence and prepared Observation Mahazar Ex.P2 and Rough sketch Ex.P12. He conducted inquest on the dead body and prepared inquest report Ex.P13. Thereafter, the dead body was subjected to post-mortem and P.W.9 Doctor Somasundaram has conducted post-mortem on the dead body and gave post-mortem Certificate Ex.P.9, wherein he opined that the deceased would appear to have died of asphyxia due to smothering. All the witnesses were examined and their statements were also recorded.
(iv) Pending investigation, P.W.14 arrested the first accused on 6.3.2006 at about 7 p.m. and he came forward to give confession statement and the same was recorded in the presence of P.W.8 and other witnesses and the admissible portion of the said statement is marked as Ex.P5. Thereafter, the first accused took up the investigators to the financier at Sirgazhi, where he found M.O.1 gold chain, M.O.2 gold ring and M.O.3 gold stud and the same were recovered under the cover of mahazar. He also identified the second accused, from whom M.O.4 gold bangles were recovered. Thereafter, the accused were sent for judicial remand and all the materials were placed before the Court. On completion of investigation, final report is filed.
3. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. In order to substantiate its case, the prosecution examined 15 witnesses as P.Ws.1 to 15 and relied on the documents viz. Exs.P1 to P13 and also relied on Material Objects marked as M.Os.1 to 6. On completion of examination of witnesses on the side of the prosecution, when the accused were questioned under
Section 313 of the Criminal Procedure Code, they denied them as false. Neither witness was examined nor document was marked on the side of the accused.
4. The Trial Court, after hearing the arguments advanced by either side and scrutinised the materials available on record, found that the prosecution has proved its case beyond reasonable doubt and awarded punishment referred to above. Hence this appeals are filed at the instance of the appellants.
5. Advancing arguments on behalf of the first accused, learned counsel inter-alia would submit that the case of the prosecution was that on the date of occurrence i.e. on 27.2.2006 at 2 p.m., when Pappammal was alone, accused 1 and 2 in order to rob the jewels, murdered her and stolen the jewels. The prosecution had no direct evidence. It rests on circumstantial evidence. Neither last seen theory nor recovery of jewels is proved, pointing out to the guilt of either of the accused.
6. Learned counsel further stated that according to P.W.4., who was the tenant in one of the houses, on the date of occurrence at about 2 p.m. he found Pappammal in the company of the second accused alone. Nowhere he has whispered about the first accused. In the instant case, the first accused has nothing to do with the offence. Even the last seen theory cannot be applied as against the first accused. In the instant case, the prosecution much relied on the theory of recovery of jewels from accused 1 and 2. It was claimed that the first accused was arrested on 6.3.2006 at about 5 p.m. and he took the police to Sirgazhi, where he identified the financier, from whom jewels M.Os.1 to 3 were alleged to have been recovered.
7. In the instant case, it is pertinent to point out that the said financier was not examined. P.W.8 did not belong to the place of Sirgazhi, where from the jewels are alleged to have been recovered and actually he belongs to the place, where occurrence took place. Even according to the investigation, he was taken all along to Sirgazhi, the non examination of financier from whom jewels were alleged to have been recovered is fatal to the prosecution. Though it is claimed that M.Os.1 to 3 were recovered and produced under Form 95 before the Court on 7.3.2006, the same was actually returned for production of jewels and the same was produced on 9.1.2007 only, which is quite indicative of the fact that the jewels, which are alleged to have been recovered on 6.3.2009, were actually not recovered. The records were first prepared, but the jewels were produced only on 9.1.2007 i.e. after a period of ten months.
8. Learned counsel added further that P.W.8 was unable to tell the place, from where the jewels were recovered. It is admitted in the cross-examination that he was not present in the place of occurrence at the time of recovery. Hence, the prosecution has not proved its case on the plea of the recovery, which was relied on by the prosecution very much. Hence the prosecution could not prove the case through circumstantial evidence.
9. Adopting the arguments of the learned counsel appearing for the first accused, learned counsel appearing for the second accused would submit that in the instant case, according to the prosecution, at the time of M.O.4 bangles were recovered from the second accused, she actually kept them in her saree, which is improper and unacceptable. It is quite unnatural that the jewels were actually kept by her in her saree after a week i.e. on 6.3.2006, that itself would indicate the fact that the prosecution has miserably failed to prove its case and hence the judgment of the Trial Court has got to be set aside and the accused have got to be acquitted.
10. This Court heard the learned Additional Public Prosecutor on the above contentions.
11. This Court paid its anxious considerations on the above contentions. It is not in controversy that one Pappammal, grandmother of P.Ws.1 and 3, died due to homicidal violence on the date of occurrence i.e. on 27.2.2006 at 2 p.m. and following the complaint given by P.W.1, the case was registered and after registration of the case, the Investigating Officer conducted inquest. It is also not in dispute that following the inquest made by P.W.14, the body was sent to the Government Hospital for post-mortem and the Doctor, who has conducted the post-mortem, has given his categorical opinion that the deceased would appear to have died of asphyxia due to smothering. Apart from this, the cause of death as put forth by the prosecution was never questioned by the accused and hence, there is no impediment for this Court to accept the case as put forth by the prosecution about the cause of death at the time and place of occurrence.
12. In order to establish the charge levelled against the accused/appellants that on the date of occurrence the first accused caused the death of the deceased by causing smothering and the second accused abetted the offence, which was the murder for gain that they robbed the jewels of Pappammal, the prosecution had no direct evidence, but the prosecution solely rests on circumstantial evidence. The two circumstances relied on by the prosecution are last seen theory and recovery of jewels from both accused 1 and 2.
13. At this juncture, learned counsel appearing for the appellants cautioned the Court that in a case like this, when the prosecution rests on circumstantial evidence, the prosecution must not only place sufficient circumstances, but also show that all the circumstances must constitute a clear chain pointing to the hypothesis that none else except the accused has committed the offence. Even after applying the said test and the ruling of the Apex Court, this Court is satisfied that the prosecution has proved its case beyond reasonable doubt.
14. The occurrence took place on 27.2.2006 at 2 p.m. P.W.4, who is admittedly a tenant in one of the row of the houses, has categorical stated that he found the second accused in the company of the deceased Pappammal and thus, it is to be pointed out that no reason whatsoever was pointed out by the accused as to why P.W.4 must come forward to give a false evidence against the second accused. Apart from this, after the occurrence, both the accused are found missing from the house and thereafter, they did not return. It remains to be stated that in the earliest document Ex.P1, through which the incident was brought to the notice of the police, it is clearly mentioned that Pappammal was actually found talking with second accused and both of them, accused 1 and 2 were found missing and hence the complainant has got suspicion over both of them and thus, when P.W.1 had entertained suspicion about accused 1 and 2, their names were mentioned in Ex.P1 complaint.
15. Thereafter, it remains to be proved is the conduct of the appellants. They did not return to the place of occurrence, where they are residing. It also indicate the fact that after the occurrence they ran away from the place of occurrence. It must be pointed out that the first accused was arrested on 6.3.2006 and his confession was recorded by the Investigating Officer in the presence of P.W.8 and thereafter, it was the first accused, who took the investigator along with P.W.8 to the Financier at Sirgazhi, from whom jewels M.Os. 1 to 3 belong to deceased Pappammal and worn by her were recovered.
16. With regard to the factum of arrest, confession statement, recovery of jewels belonging to Pappammal, P.W.8 has given categorical evidence. It is true that there were certain discrepancies in the evidence of P.W.8. But, the Court is of the considered opinion that when the evidence is recorded after lapse of some time, it is quite natural that there is a possibility of failure of human memory and there is some discrepancy in the evidence. Once cogent and clear evidence has been given by P.W.8, the same can be accepted.
17. It is to be added further that P.W.8 also deposed that the second accused was arrested on the same day, who was identified by the first accused and the second accused came forward to give confession statement voluntarily and thereafter, she produced M.O.4 bangles. At this juncture, a legal presumption which has got to be taken under the circumstances is under
Section 27(2) of the Indian Evidence Act, 1872 that the jewels were recovered in the presence of P.W.8 on 6.3.2006 within a week. In a given case like this, when the jewels belonging to the deceased were in the custody of first and second accused within a short span of time, the accused must prove that as to how the jewels happened to be in their custody. The presumption of
Section 114(a) of the Indian Evidence At, 1872 could be drawn either he or they were the receiver of stolen property.
18. With regard to last seen theory, the second accused was found in the company of the deceased at about 2 p.m. just before the occurrence and thereafter the first and the second accused were found missing and did not return to the place of occurrence and the jewels worn by the deceased were recovered from them. All would indicate the fact that they are the persons, who have committed the crime of murder and stolen the jewels. The submission of the learned counsel appearing for the first accused that the first accused was not actually found in the company of Pappammal cannot be a reason to show any doubt on the prosecution case. Accused 1 and 2 were living together in a row of houses and after the occurrence, they were missing and the jewels were recovered from them and the accused had no explanation to offer.
19. Apart from this, the comment made by the learned counsel appearing for the appellants that Form 95 was lodged before the Court on 7.3.2006 and the same was returned for production of jewels and the same was produced before the Court on 9.1.2007 cannot be a reason to suspect the prosecution case. Certain jewels were actually stolen. Those jewels were in the custody of the accused. Some of them were recovered and witnesses were examined and they have identified the jewels, which would be suffice to prove the prosecution case. Though they may look as a doubt, those doubts are not reasonable.
20. Hence the prosecution has placed necessary circumstances and also proved its case pointing out to the guilt of the accused. The Trial Court is perfectly correct in convicting the first accused for the offences under
Sections 302 and
392 of the Indian Penal Code and the second accused for the offences under
Sections 302 read with 109 and
392 read with 109 of the Indian Penal Code and sentenced them referred to above. The judgment of the Trial Court does not require either factually or legally any interference. Accordingly, both the appeals are dismissed.
ssa To
1. The Judicial Magistrate No.1, Thiruppur.
2. The Judicial Magistrate No.1, Thiruppur through the Chief Judicial Magistrate, Thiruppur.
3. The Additional District and Sessions Judge/ Fast Track Court-IV, Coimbatore at Thiruppur.
4. The Director General of Police, Madras 4.
5 The Public Prosecutor, High Court, Madras