THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE DR.JUSTICE ANITA SUMANTH Criminal Appeal No.82 of 2017 and Crl.M.P.No.2433 of 2017
1. Shankar (A1)
2. Ganapathy (A2)
3. Balu (A3) .. Appellants - Vs -
State rep by Inspector of Police, T12, Poonamallee Police Station, Thiruvallur District.
(Cr.No.1124 of 2014) .. Respondent Prayer:- Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment passed by the learned III Additional District and Sessions Judge, Thiruvallur at Poonamallee in S.C.No.213 of 2015 dated 23.01.2017.
For Appellants : Mr.S.Mohamed Ansar For Respondent : Mr.P.Govindaraj Additional Public Prosecutor - - - - -
J U D G M E N T
(Judgment of the Court was delivered by S.Nagamuthu,J.)
The appellants are the accused 1 to 3 in S.C.No.213 of 2015 on the file of the learned III Additional District and Sessions Judge, Thiruvallur at Poonamallee. The accused 1 and 2 stood charged for offences under Sections 120(B), 302 (two counts), 380 and 404 I.P.C. and the third accused stood charged for offences under Sections 120(B), 302 (two counts) r/w 109, 380 r/w 109 and 404 r/w 109 I.P.C. By judgment dated 23.01.2017, the trial Court convicted all the three accused and sentenced them as detailed below:
Challenging the said conviction and sentence the appellants are before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
2.1. The deceased in this case Mr.Babu (hereinafter referred to as 'D1') and Mrs.Santhi (hereinafter referred to as 'D2'), were husband and wife. They were all residing at No.10/4, 2nd Main Road, Thirumal Nagar at Poonamallee. They were residing in the ground floor of the house. The first floor of the house was under the occupation of a tenant. Sometime before the occurrence, the tenant vacated the first floor of the house and thus the first floor fell vacant. D1 and D2 decided to rent it out. Therefore, they decided to paint the said house. P.W.3 Mr.Kathirvel, a professional painter was engaged for the same. For about one week, during the first half of the month of August, 2014, P.W.2 was painting the first floor. D1 and D2 had informed the brokers that the first floor of the house was ready for rent. The first accused came to know about the same.
2.2. On 09.08.2014, the first accused spoke to D1 over phone and enquired about the rent and other details of the first floor of the house and wanted to see the house in person. He first said that he would come on 10.08.2014 and accordingly on 10.08.2014, the accused came along with A3, visited the house around 10.00 – 10.30 a.m. He fixed the rent and along with A3 he went back.
2.3. It is further alleged that on the same day around 06.00 p.m. the first accused came along with the second accused to the house of the deceased. At that time, both the deceased were in the house. The first accused took D1 to the first floor of the house in the guise of again visiting the said portion. D2 was in the ground floor speaking to the second accused. Then, D2 wanted the second accused also to go and see the first floor. Accordingly, the second accused went to the first floor. In the first floor, according to the case of the prosecution, the first accused strangulated D1. The second accused assisted and facilitated the first accused to complete the task. The first accused thus killed D1 in the first floor of the house. Then, A1 and A2 came down to the ground floor. The second accused held D2 in the ground floor and the first accused using a towel strangulated her by neck until she died. Then, the first accused moved the dead body of D2 to a nearby room. Thereafter, both the accused opened the bureau in the ground floor and committed robbery of the gold jewels. Then, they escaped from the house with the stolen properties. The occurrence was not witnessed by anyone.
2.4. On 11.08.2014, in the morning, around 09.00 a.m. the neighbours found the doors of the ground floor of the house of the deceased were open and D2 was lying dead in the house with injuries. There were bloodstains. P.W.1, the Village Administrative Officer, was incidentally passing through the said area. He was informed by the neighbours about the same. Immediately, he went into the house taking the neighbours and found the dead body of D2 lying in the ground floor with injuries. But her husband was not seen anywhere in the ground floor. Then, P.W.1 and others went up to the first floor. In the first floor, the dead body of D1 was found lying in the bathroom. There were injuries. P.W.1 ascertained the names and other details of the deceased, then he went to Poonamallee police station and made a complaint at 10.00 a.m. on 11.08.2014. Since the assailants were not known, F.I.R. was registered against unknown assailants. Ex.P1 is the complaint and Ex.P23 is the F.I.R.
2.5. The case was taken up for investigation by P.W.18 Mr.Sureshkumar, the then Inspector of Police. Immediately, he visited the place of occurrence at 11.50 a.m. and prepared an observation mahazar and a rough sketch in the presence of witnesses. He recovered the bloodstained earth and sample earth both from the first floor as well as from the ground floor, where the respective bodies were lying. During inquest, he noticed that there was a piece of paper in the shirt pocket of D1 in which a cell phone No.983189126413 was written. It was found struck off and below the same another cellphone No.9787912441 was found written. There was also a pocket diary in the pocket of D1. He recovered both the documents under a Mahazar. Then, he forwarded both the dead bodies to the hospital for postmortem.
2.6. One Dr.Ezhil Nambi conducted autopsy on the body of D1 on 11.08.2014 at 04.00 p.m. at Kilpauk Government Medical College Hospital, Chennai (Since Dr.Ezhil Nambi died subsequently, based on the postmortem certificate P.W.20 Dr.Selvakumar deposed about the postmortem). Dr.Ezhil Nambi found the following injuries on the body of D1:
“Injuries: Two parallel asymmetrically oblique, regular, complete ligature abrasion seen over front and sides of neck, posteriorly merging on right side of neck. The upper ligature abrasion is of size 41x1-
0.5 cm in its length and breath with its upper border is 7 cm from the right mastoid process of width 1 cm and 6 cm from the left mostoid process of width 1 cm. The upper border of the ligature mark of chin is about 5 cm with width 1 cm and the lower border of ligature mark to the sternal notch is about 10 cm in length and posteriorly 7 cm below the spine of C7 cervical vertebrae. On dissection the underlying neck structures were found contused with extravasation of blood in the surrounding soft tissues. The lower ligature abrasion is of size 38 x 1.05 cm in its length and breath with its upper border is 7 cm from the right mastoid process of width 1 cm and 7 cm from the left mastoid process with width 1 cm, the upper border of ligature mark to chin is about 10 cm and the lower border of ligature mark to sternal notch is about 5 cm with width 1 cm. Posteriorly the ligature mark merges with the previous injury on right side of nape of neck.
On Dissection of Neck: Dark red contusion of size 8x6xmuscle deep seen over middle part of right sterno mastoid muscle with extravasation of blood in the surrounding soft tissues, and 12 x 8 x muscle deep seen over upper part of left sterno mastoid muscle and over sub mandibular region of left side with extravasation of blood in the surrounding soft tissues. On further dissection – Dark red contusion of size 5x3x0.5 cm seen in the front of thyroid cartilage on both sides and dark red contusion of size 3x3x0.2 cm seen over para tracheal regiions on both sides and 1x1x0.2 cm seen behind the root of trachea.
On dissection of Skull: Scalp: bluish black bruising of size 6x5x0.5 cm over left temporal region and 8x6x0.3 cm seen over left parietal region, caranilvault and meninges: Intact, Brain: marked sub dural and sub arachnoid hemorrhages seen all over the brain surface. Base of skull – intact.
On dissection of thorax: Ribs: fracture of 2nd to 8th rib on left side seen on its front in mid clavicular line seen with surrounding bruising. Thoracic cavity: contains 350 ml of fluid blood. Heart: Enlarged in size. Chambers contains fluid blood, coronaries thickened, left ventricles thickened and dilated. Few atheromatous plaques seen over root of aorta. Lungs: both lungs normal in size, c/s congested.
On dissection of abdomen: Stomach: empty, no specific smell felt, mucasae normal. Intestines: distended with gas, Liver, spleen and both kidneys: Normal in size, c/s congested. Bladder: empty.
External Genitalia – penis smaller in size with discharge of semen in the tip of penis – scrotum seen normally with both testis in situ, no regional lymph nodes seen. Pelvis and spinal column: intact.”
Ex.P35 is the postmortem certificate. He opined that the death of D1 was due to manual strangulation with a rope.
2.7. On the same day, Dr.Ezhil Nambi conducted autopsy on the body of D2. He found the the following injuries on the body of D2:
“Injuries: (i) Reddish brown abrasion of size 3x1.5x3x2 cm over front just and below the centre of chin, 5x2-3 cm over front of upper part of right side neck just below the angle of mandible, 0.5x0.5 cm semilunar (nail abrasion) over front of right cheek and 0.2x0.2 cm over front of right ear, 6x0.5 cm over front of left cheek, curved abrasion of size 4x1.2 cm centre of neck 7 cm above the supra sternal notch and 8 cm below the chin.
(ii) Dark red contusion of size 3x1.5x0.5 cm seen over outer aspect of upper part of left arm, 3x1x0.5 cm over outer aspect of middle third of left leg, 3x1x0.2 cm over upper part of left leg.
(iii) Dark red contusion of size 5x3xmuscle deep seen below the chin and over the ramus of mandible on left side. 6X3x0.2 cm over back of nape of neck with intervening normal skin.
On dissection of skull: scalp: bluish black bruising of size 8x5x0.5 cm over left temporal region, 14x10x0.3 cm sen over midparietal region on both sides, 6x4x0.3 cm over right temporal region, Cranialvalut and meninges: intact, Brain : marked sub dural and sub arachnoid hemorrhages seen all over the brain surface. Base of skull: intact.
On dissection of neck: Dark red contusion of size 6x5x0.2 cm seen over left sub mandibular region. On further dissection all other neck structure were intact on left side. Dark red contusion of size 4x3x0.2 cm seen over right sub mandibular region and 5x3x0.2 cm seen over lower third of right sterno mastoid muscle. On further dissection all other neck structures in the right side were intact. On further dissection of neck small contusion was seen over back of epiglottis and over both inner aspect of root of tracheal cartilage.
On dissection of thorax: Fracture of sternum at the level of fifth rib seen with surrounding bruising. Ribs: fracture of right ribs from 3rd to 6th on its front in para sternal region seen with surrounding bruising. Fracture of 5th rib on left side seen on its front in para sternal region seen with surrounding bruising. Thoracic cavity: contains 350 ml of fluid blood. Heart: Enlarged in size. Chambers contains fluid blood, coronaries thickened, left ventricles thickened and dilated, few atheromatous plaques seen over root of aorta. Lungs: both lungs normal in size, c/s congested.
On dissection of Abdomen: Stomach: contains 50 ml of brown coloured fluid, no specific smell felt, mucosae normal. Intestines: Distended with gas. Liver, Spleen and both kidneys: normal in size, c/s congested. Bladder: empty, Uterus: Atrophied, c/s – empty. Both ovaries normal in size, c/s intact, Cervix, Vaginal canal and external genitalia: intact.”
Ex.P36 is the postmortem certificate. He opined that the death of D2 was due to shock and hemorrhage due to multiple injuries found on the body of D2.
2.8. P.W.18, during the course of investigation, had requisitioned the services of fingerprint experts. P.W.17 Mr.Jagadeesan an expert in fingerprint science visited the scene of occurrence at 10.15 a.m. on 11.08.2014. On through examination, he found as many as four chance fingerprints. He photographed the same and marked them as J1, J2, J3 and J4. J1 and J2 were found in the bed room in the ground floor and J3 and J4 were found in the steel almirah in the bed room in the ground floor. P.W.17, compared the fingerprints taken from D1 and D2 with the above said chance fingerprints. On such examination, he found that the chance fingerprints J2 and J4 were that of D1. The chance fingerprints J1 and J3 did not tally with that of the deceased. He preserved the same. After the accused were arrested, the fingerprints of A1, A2 and A3 were obtained and they were sent to him for comparison. On such comparison, he found that the chance fingerprint J1 tallied with the right thumb impression of the first accused. The other chance fingerprint did not tally with that of the accused.
2.9. P.W.18, thereafter handed over the investigation to his successor P.W.21. On 25.09.2014, during the course of investigation, he arrested all the three accused in the presence of P.W.7 and another witness. On such arrest, all the three accused gave independent voluntary confession. In his confession, the first accused disclosed the place where he had hidden the gold thali, Thali saradu, gold ear studs, gold attigai, a dollar chain, gold arram and a cloth bag. In pursuance of the same, he took the police and the witnesses to his house at Mogappair and produced the above material objects viz., M.Os.7 to 12 which were kept in a bag viz., M.O.13. P.W.21 recovered the same under a mahazar. The first accused then produced a motorcycle bearing registration No.TN-49-X-0923 from his house in pursuance of the disclosure statement. P.W.21 recovered the same under a mahazar vide M.O.14. Further, no fact was discovered from out of the disclosure statement made by A2 and A3. Since these accused were put up for test identification parade after taking precautionary measures to conceal their identify, P.W.21 produced them before the Court for judicial remand and thus in pursuance of the judicial remand order, they were lodged in the central prison, Puzhal. When they were in custody, he obtained the sample fingerprints of these accused and sent the same for comparison.
2.10. The second accused, expressed his desire to make a voluntarily confession. Therefore, P.W.21 made a request to the learned Judicial Magistrate for recording the judicial confession of the second accused. P.W.13, the learned Judicial Magistrate at Poonamallee, directed the jail authorities to produce the second accused before her on 15.10.2014. P.W.13 took all precautionary measures and gave statutory warning to the second accused as required under Section 164 Cr.P.C. With a view to give time to the second accused to relax, she sent him back to the prison. On 16.10.2014, as directed, the second accused was again produced before P.W.13. P.W.13 once again gave statutory warning to the second accused. The second accused then wanted to confess to her voluntarily. P.W.13 was satisfied that the second accused was volunteering to make a confession. Therefore, she recorded the said judicial confession of the second accused vide Ex.P17. In that judicial confession, he narrated the entire events as to how he along with the first accused went to the place of occurrence and as to how the first accused took D1 to the first floor and as to how he went to the first floor, where both of them killed D1. He has further stated that on getting down to the ground floor, they killed D2 then they opened the bureau and took away the jewels viz., M.Os.7 to 12.
2.11. At the request of P.W.21, on 11.10.2014, test identification parade was conducted by P.W.19. In which, all the three accused were put up for test identification parade. P.W.5 Mrs.Chitra and P.W.3 Mr.Kathirvel participated in the test identification parade. During the first round, P.W.15 identified the first accused alone. She wrongly identified one Mahesh also. During the second round, she identified the first accused rightly and wrongly identified one Mahesh. During the third round, she rightly identified the first accused and wrongly identified one Mahesh. Thus on all the three occasions, she identified only the first accused. P.W.3 Mr.Kathirvel identified all the three accused in the first round. During the second round as well as in the third round also, he identified all the three accused correctly. P.W.19, recorded the said procedure and submitted a report under Ex.P13. At that stage, P.W.21 was transferred and P.W.22 took up the case for investigation.
2.12. He collected the call details pertaining to BSNL No.26491837 and cell phone No.9787912443. He ascertained that the cellphone stood in the name of the first accused. On completing the investigation, he laid chargesheet against the accused.
2.13. Based on the above materials, the trial Court framed charges as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 22 witnesses were examined, 50 documents and 23 material objects were marked.
2.14. Out of the said witnesses, P.W.1 the Village Administrative Officer has spoken about the fact that the dead bodies of both the deceased were found in the house around 09.00 a.m. on 11.08.2014. He has further spoken about the complaint made to the police. P.W.2 is a neighbour of the deceased. He has stated that on 10.08.2014, he found D1 talking to the painter in the house. Thereafter, on the next day, he came to know that both the deceased have been done to death. He has spoken about the preparation of the observation mahazar, rough sketch and recovery of material objects from the place of occurrence. He has further stated that painting in the first floor of the house was going on in the house of the deceased for about a week before the occurrence.
2.15. P.W.3 has stated that he was a painter by profession.
He has spoken about the fact that he painted the first floor of the house of the deceased during the relevant time. He has further stated that around 10.00 to 10.30 a.m. on the day of occurrence, the accused 1 and 3 came to the house of the deceased spoke to D1, visited the first floor of the house where painting work was going on. He has further stated that on the same day between 04.00 to 04.30 p.m. the accused 1 and 2 came to the house of the deceased and they were talking with D1 and D2. Around 05.15. p.m. he left the house of D1 and D2 and at that time, the accused 1 and 2 were in the house talking to D1 and D2. On the next day, he came to know about the death of both the deceased. He has further stated that he identified all the three accused in the test identification parade.
2.16. P.W.4 is the brother of D2. He has stated about the jewels worn by the deceased. He has also stated that the house was under painting. P.W.5 is a neighbour. She has stated that she had seen the accused 1 and 3 when they visited the house of the deceased around 11.30 to 12.00 noon. According to her, on 11.08.2014 at 07.00 a.m. she found the house of the deceased kept open. Since the house was kept open till 08.00 a.m., she went to the house, knocked at the door and found D2 lying dead, then she raised alarm which attracted other neighbours.
2.17. P.W.6 is the sister of D2. She has stated that M.Os.7 to 12 belonged to the deceased. She has identified the same.
P.W.7 has spoken about the arrest of all the three accused, confession made by them and the recovery of M.Os.7 to 13 from the first accused out of the disclosure statement made. P.W.8 has stated that he only introduced P.W.3-Mr.Kathirvel to the deceased for painting the house. P.W.9 had stated that the cellphone No.9840174869 was purchased by the first accused from his shop. P.W.10 has stated that he purchased cellphone No.9787912441 in his name.
2.18. P.W.11 has stated that he was having a public telephone booth at his office at Kundrathur and the telephone number is 32448495. P.W.12 was also having a public telephone booth at his store at Bharathi Salai, Mogappair West and the number is 32558897. P.W.13 the learned Judicial Magistrate has spoken about the judicial confession of the second accused recorded by her. P.W.14 has stated that he took photographs of the chance fingerprints lifted by the expert. P.W.15 a constable has stated the he handed over the dead bodies of the deceased to the doctor for postmortem. P.W.16 has stated that the house bearing No.5/848, 4th Block, Mogappair was rented to the first accused.
2.19. P.W.17 has spoken about the chance fingerprint lifted from the scene of occurrence and the comparison made by him. According to him, one chance fingerprint lifted from the place of occurrence tallied with the fingerprint of the first accused.
P.W.18 has spoken about the initial investigation done. P.W.19 has spoken about the test identification parade conducted.
P.W.20 has spoken about the postmortem conducted on the dead bodies of D1 and D2 and his final opinion regarding the cause of death. P.Ws.21 and 22 have spoken about the further investigation done and the final report filed.
2.20. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. On their side six witnesses were examined as defence witnesses. D.W.1 is the second accused himself. He has stated that on 22.09.2014, he was asked to come to Kottampatti police station. He was interrogated on that date. Again, he was asked to come to the said police station on 23.09.2014. Again, he was interrogated and they took him to Thuvarankurichi and thereafter, he was taken to Poonamallee police station and he was falsely implicated in the case. He has further stated that the judicial confession was not made by him voluntarily. The Sub Inspector of Police was present there. According to him, at 10.30 a.m. he was produced before the learned Magistrate and one Sub Inspector of Police accompanied him. Around 12.00 noon, the learned Magistrate called him inside the Court hall. But the learned Magistrate was in the chamber. Then, he was asked to wait outside, while he was sitting outside, the Sub Inspector of Police brought a paper and obtained his signature. He was asked to come on the next day and accordingly he was taken to the Court at 11.00 a.m. He was called inside the Court at 03.00 p.m. by the learned Magistrate, then he was asked to wait outside and accordingly he was waiting on the verandah of the Court, at that time, the Sub Inspector and two police constables brought a bunch of papers containing 15 papers and forced him to sign. But he refused to sign because he was not aware of the contents, the police threatened him and out of fear, he signed the same. Thus, according to him, he did not make any confession at all.
2.21. D.W.2 is the first accused. He has stated that on 22.09.2014 at 04.30 p.m. one Chandrasekar the then Inspector of Police, Poonamallee police station took him to Poonamallee police station. There he enquired about the addresses of A2 and A3. Since he developed chest pain, they took him to Ramachandra Hospital. Until 11.30 p.m. he underwent treatment in the ICU ward. Then, he was taken back from the hospital and allowed to go home. On 24.09.2014, he was again taken to the police station by Mr.Chandrasekar the then Inspector of Police. They took him to a private hospital checked his blood pressure and brought him back to the police station.
Then, they took him to various places and finally implicated him in this case falsely.
2.22. D.W.3 is one Mr.Palaniyappan. He has stated that on 25.09.2014 between 10.30 and 10.45 a.m. two persons were taking to the mother of the first accused. Then, when he enquired, they told that they were police. Then, they took A1 and his mother to the police station in a car. D.W.4 is a resident of Kottampatti village. According to him, on 22.09.2014, he was taken to the police station at Kottampatti. There, he found the second accused in the police custody, they interrogated them and then sent them back. Again, they directed D.W.4 to bring A2 to the police station and accordingly he took him to the police station. The police took A2 into custody.
2.23. D.W.5 is a resident of Vallicherripatti village. He has stated that on 22.08.2014, the father of A2 came to him and informed him that police had taken A2 to the police station for interrogation. He accompanied the father of A2 to the police station. They found A2 in the custody of the police. Then, the police took A2 to Singampunari police station. D.W.6 is a resident of Maravamadurai village. He has stated that on 25.09.2014 between 10.30 and 11.00 a.m. Mr.Palaniappan informed him that the mother of the first accused was taken by someone in a car. He went with Mr.Palaniappan (D.W.3) and intercepted the car and enquired. He has further stated that they were police and they were taking A1 and his mother to Poonamallee police station for interrogation.
2.24. On the side of the defence, Exs.D1 to D5 have been marked. Ex.D1 pertains to the treatment given to A1 at Ramachandra Hospital. Ex.D2 is the marriage photograph of the first accused. Ex.D3 is the compact disk containing the marriage event of the first accused. Ex.D4 is the news article published in Malai Malar and Malai Murusu, Tamil dailies. Ex.D5 is the news article published in Daily Thanthi, Tamil daily. The defence of the accused was a total denial. Having considered all the above, the trial Court convicted them as detailed in the first paragraph of this judgment and that is how the appellants are before this Court with this appeal.
3. We have heard the learned counsel appearing for the appellants, the learned Additional Public Prosecutor appearing for the State and also perused the records carefully.
4. This is a case based on circumstantial evidence. There is no controversy over the fact that D1 and D2 were residing in their house bearing Door No.10/4 at Second Main Road, Thirumal Nagar in Poonamallee. It is not in dispute that the first floor of the house was available for rent and painting work was going on. P.W.3, Mr.Kathirvel, the painter has stated about the same. P.W.3 has seen D1 and D2 around 05.00 to 05.30 p.m. on 10.08.2014 at the ground floor of the house. At that time, according to him, they were talking to A1 and A2. The dead bodies of D1 and D2 were found by P.W.5 Mrs.Chithra at 08.00 a.m. on 11.08.2014. She is the neighbour of the deceased.
Medical evidence has clearly established that death of both the deceased was homicide. Thus, the prosecution has succeeded in establishing beyond any doubt that both the deceased were done to death sometime between 05.30 p.m. on 10.08.2014 and 08.00 a.m. on 11.08.2014.
5. Now the question is who are the perpetrators of the crime. P.W.3 Mr.Kathirvel had stated that on 10.08.2014 around 10.00 to 10.30 a.m., the accused 1 and 3 came to the house of the deceased spoke to D1 to negotiate for taking first floor of the house on rent. He has identified these two accused during test identification parade also. We find no reason to reject the evidence of this witness. P.W.5 Mrs.Chithra had also seen these two accused. But, during test identification parade, she could not able to identify the first accused, though she identified both of them during trial. From these evidences, the prosecution has clearly established that around 10.00 – 10.30 a.m. the accused 1 and 3 had come to the house of the deceased and they were engaged in negotiating with D1 for fixing the first floor of the house for rent.
6. On the same day between 4.00 to 4.30 p.m. the accused 1 and 2 had come to the house of the deceased. This has been spoken by P.W.3. He was then engaged in painting. Upto 05.30 p.m., these two accused A1 and A2 were talking to D1 and D2 in the house. P.W.3 left the house around 05.15 to 05.30 p.m.
P.W.3 has identified A1 and A2 during the test identification parade as well as during the trial of the case also. We find no reason to reject the evidences of these witnesses, which would clearly go to prove that the accused 1 and 2 were found in the company of both the deceased between 04.30 p.m. to 05.15 p.m. on 10.08.2014.
7. When the dead bodies were found, M.Os.7 to 12 which were usually worn by D2 were found missing. These gold jewels were the personal belongings of D2. This has been spoken by P.W.6 who is the sister of the deceased. From these evidences, the prosecution has established that in the same occurrence M.Os.7 to 12 were stolen away.
8. As soon as the case was registered, the fingerprint expert was requested by the investigating officer to visit the place of occurrence. P.W.17 has lifted chance fingerprints from the place of occurrence. Out of the chance fingerprints lifted from the place of occurrence, the admitted fingerprint of the first accused had tallied with the chance fingerprint. P.W.17 has given detailed reasons for his opinion. We find no reason to reject the evidence of P.W.17. It is not the case of the first accused that the fingerprint used for the purpose of comparison with the chance fingerprint was not taken from him. Thus, it has been clearly established that the first accused had visited the bedroom of the house of the deceased in the ground floor. The first accused has got no explanation to offer. This is a very strong evidence against the first accused.
9. On the arrest of the accused, the first accused made a voluntary confession. Out of the said voluntary confession, he took the police and the witnesses to his house and produced M.Os.7 to 12 kept in the bag-M.O.13. The case of the accused is that he did not make any such disclosure statement and these jewels were not recovered from his possession. In order to prove the same, he relies on his own evidence and the evidence of the other defence witnesses. In our considered view, though the evidences of defence witnesses require equal treatment like that of the evidence of the prosecution witness, in the instant case, we are unable to accept the evidence of these defence witnesses, in view of the other overwhelming evidence of the prosecution. As we have already pointed out, though the fingerprints of the first accused came to be present at the scene of occurrence, has not been explained by him. Above all, the evidences of P.Ws.3 and 5 would also go to further strengthen the case of the prosecution that the first accused visited the house of the deceased and he was in the company of the accused 2 and 3.
10. The second accused gave a voluntary confession to P.W.13. P.W.13 had given the statutory warning to him and then gave time also for relaxation. On the next day, when A2 was produced, he made a voluntary confession. At that time also the learned Magistrate fully followed the procedure by giving statutory warning and only after having satisfied her judicial conscious, that A2 was in mood to give voluntary confession, she recorded the same. But the second accused in his evidence has stated that on the first day when he was taken to the Judicial Magistrate Court, he was asked to wait and the Sub Inspector of Police came and obtained his signature in few papers without even allowing to know the contents of the same. He has further stated that on the next day, again he was taken to the Court and was made to wait outside and the Sub Inspector of Police came with a bunch of papers containing 15 pages and his signature was obtained by force. In essence, his evidence is that he did not make any voluntarily confession, the learned Magistrate did not record any such voluntarily confession and the confession statement which is now available before the Court was not made by him however his signature alone was obtained by force. This evidence of the second accused can never be accepted because, we find no reason at all to doubt the credibility of the learned Magistrate who has after all discharged her judicial function with judicial conscious. This false defence taken by A2 itself is yet another incriminating circumstance, which is very strongly against the second accused.
11. As we have already pointed out, the first accused had got no explanation to offer about the possession of the stolen properties recovered from his house. The defence of the first accused was that he did not make any such confession and he did not produce the stolen properties to the police, cannot be accepted. Since, we find that these stolen properties were in his possession soon after the commission of the theft and since he had not offered any explanation, we are bound to raise a presumption under Section 114 of the Evidence Act that he was one among the culprits.
12. From these evidences, the prosecution has clearly established the guilt of the accused 1 and 2. So far as the third accused is concerned, the only piece of evidence available against him is that he went along with the first accused around 10.00 to 10.30 a.m. on 10.08.2014 and had discussion with the deceased for fixing the rent. Except this, there is no other evidence against the third accused. Even in the judicial confession made by the second accused, he has not stated anything incriminating against the third accused. Absolutely there is no evidence that the third accused had any knowledge that the accused 1 and 2 were going to the house of the deceased to commit robbery with murder. There is no evidence that he was abating the accused 1 and 2. Going by the case, at the first instant, it appears to be an innocent visit. From the evidence available, more particularly, from the judicial confession made by the second accused, it is crystal clear that the first accused did not disclose about his guilty mind either to the second accused or to the third accused until the first accused started strangulating D1 in the first floor of the house. Thus, in our considered view, the prosecution had failed to prove the case against the third accused and therefore the third accused is entitled for acquittal.
13. So far as the accused 1 and 2 are concerned, we do not find any evidence to prove conspiracy also. The judicial confession made by the second accused would go to show that without even disclosing his mind to the second accused, the first accused took him to the house of the deceased. Thus, there was no evidence to prove conspiracy. Therefore, the accused 1 and 2 are entitled for acquittal from the offence of conspiracy. However, they are liable to be punished for other offences as charged under Sections 302 I.P.C. (2 counts), 380 and 404 I.P.C.
14. Now turning to the quantum of punishment, the trial Court has imposed only the minimum and reasonable punishment for the above proved charges. Thus, we find no reason to interfere with the quantum of punishment for these offences.
15. In the result, the criminal appeal is partly allowed in the following terms:
(i) the 3rd appellant / A3 (M.Balu) is acquitted from all the charges. Fine amount if any paid by him shall be refunded to him. Since Mr.M.Balu is in jail, he is directed to be set at liberty forthwith unless his detention is required in connection with any other case.
(ii) The appellants 1 and 2 / A1 and A2 are acquitted from the charge under Section 120(B) I.P.C. and the conviction and sentence imposed on A1 and A2 for the said offence is set aside.
(iii) The conviction and sentence imposed on the appellants 1 and 2 / A1 and A2 for the offences under Sections 302 (2 counts), 380 and 404 I.P.C. are hereby confirmed. The sentences shall run concurrently.
(iv) It is directed that the period of sentence already undergone by them shall be given set off as provided under Section 428 Cr.P.C.
(v) Consequently, the connected miscellaneous petition is closed.
(S.N.J.) (A.S.M.J.) 07.03.2017 Speaking Order / Non-speaking Order Index : Yes kk
S.NAGAMUTHU,J.
& ANITA SUMANTH,J.
kk To
1. The III Additional District and Sessions Judge, Thiruvallur at Poonamallee.
2. The Inspector of Police, T12, Poonamallee Police Station, Thiruvallur District.
3. The Public Prosecutor, Madras High Court.
Crl.A.No.82 of 2017 and Crl.M.P.No.2433 of 2017
07.03.2017 http://www.judis.nic.in