(Judgment of the Court was passed by P.MURGESEN, J) These Criminal Appeals are directed against the conviction and sentence imposed by the learned Additional District and Sessions Judge (Fast Track Court), Pudukottai, dated 23.10.2007, made in S.C.No.26 of 2005, on the appellants/accused.
2.The brief case of the prosecution is as under:-
P.W.1-Premalatha is the daughter of deceased Porkodi. P.W.2-Valliammai is the mother of deceased Porkodi. P.W.7-Ilangovan and P.W.10-Ravichandran are the sons of deceased Porkodi. On 04.11.2004, P.W.1, P.W.2 and the deceased Porkodi were in their house at Neivasalpatti. At about 7.30 P.M. a dog was parking. At that time, deceased Porkodi saw a person through the window and questioned about his standing outside the house. When the person wanted to meet Ravi, she invited him to the room. At that time, 5 persons entered into house; one person locked the door and two persons with knife in their hand threatened that they should not shout. Two persons closed the mouth of P.W.1 and deceased Prokodi. The deceased Porkodi was taken to Pooja Room. One of them threatened P.W.1 to hand over the studs and another person removed the chain from her neck. They also removed the chains, studs, bangles and rings worn by P.W.2 and deceased Porkodi. They enquired about the Bureau and money. Bureau was shown to the accused by P.W.1. They took the jewels from the box. P.W.1 was tied up with Saree and even one of them threatened to rape her. Then they left the scene of occurrence.
3. After the accused left the house, P.W.1 was able to remove the knots and found her mother was speechless. Then she shouted. P.W.4-Chinnathal came there on hearing the noise. When Porkodi was taken to the hospital, she was examined by P.W.3-Dr.G.Marimuthu and he found that Porkodi was dead. On hearing the news of death of Porkodi, P.W.6-Rengasamy went to the hospital. After hearing the news, P.W.7-Ilangovan, son of Porkodi went to the scene of occurrence, because he was at Chennai at the time of occurrence.
4.P.W.11-Raja is resident of Tiruppur. P.W.12-Mahalingam is a Jeweller. He sold jewels to complainant Ulagappan Asari family. A telephone booth was run by P.W.13-Alagappan. The 4th accused used to make calls from his telephone booth. A jewel was pledged with Coimbatore District Central Co-operative Bank, Tiruppur Branch. P.W.4-Rakkiappan was the manager of the said branch.
5.On hearing a wireless message, P.W.19-A.Williams, Sub-Inspector of Police, Namunasamuthiram Police Station proceeded to the Government Hospital, Pudukottai on 04.11.2004 at 22.15 hours and recorded the statement of P.W.1 and registered a case in Crime No.138 of 2004 under
Sections 396 and
302 I.P.C. and prepared the printed F.I.R.-Ex.P.6. The F.I.R. was handed over to the Judicial Magistrate by P.W.25-Manisekaran, Head Constable.
6.P.W.26-Periasamy, Inspector of Police was the Investigating Officer. He received the F.I.R. for investigation and reached the scene of occurrence on 05.11.2004, at about 00.15 hours. He sent for sniffer dog, fingerprint expert and photographer. Since it was late at night, he stayed there. From 6.00 to 7.00 hours, he prepared Observation Mahazar-Ex.P.2 and Rough Sketch-Ex.P.26 in the presence of Ganesan and P.W.5-Meiyappan. Photographs were taken by P.W.15- Haribabu and he gave M.O.11-Photographs with negatives.
7.P.W.26 conducted inquest from 10.00 to 12.00 hours in the presence of Panchayars and prepared Ex.P.27-inquest report. Then, the body was sent for postmortem through P.W.20-Moorthy, Police Constable. The postmortem was conducted by P.W.24-Dr.Aravali and he issued Ex.P.24, postmortem certificate. P.W.24 found the following:
"External Injuries:
1.Multiple abrasion five in number about 1x1cm right side of neck.
2.Bleeding through both nostrils, eye lids-closed.
(nc) hemorrhage Dilateal. Nose bleeding. Tongue inside mouth. Jaws - clenched. Thorax, abdomen-uniform. generative organs-Well developed. Internal Exam: Abdomen-uniform. Peritoneal cavity intact. Ribs - intact, heart 300gm contain 50ml liquid blood, Lungs. Right 500g Lt. 440 g C/s. Congested. Hyoid bone - Sent for analysis. Stomach - contains 100ml of partially digested yellow coloured food, Liver 1600mgs C/s Congested, spleen-200gm C/s Congested, Kidneys-140gms C/S Congested, intestine, bladder, Uterus - empty, Skull-intact. Brain 1200grms C/S. congested. Right sternomastoid shows contusion 4x2cm." P.W.24 found that the Hyoid bone was intact and gave final opinion Ex.P.25 that the deceased would have died of asphyxia due to possible throttling.
8.After postmortem, P.W.20 handed over M.O.12-Saree, M.O.13-Jacket, M.O.14-In shirt to the investigation officer and he also handed over the Viscera for chemical examination. P.W.26, the investigation officer gave a requisition letter-Ex.P.4 to the Judicial Magistrate, Thirumayam to forward the Viscera for chemical examination and on that basis, the Judicial Magistrate sent the same for chemical examination through his letter Ex.P.5. Viscera was examined by P.W.17-Ravindran and he gave a Report-Ex.P.3 that there is no poison in the body.
9.The scene of occurrence was also visited by forensic official P.W.16- Sivakumar and he was not able to find the fingerprints of the accused. On 05.11.2004 P.W.26 examined P.W.1-Premalatha, P.W.2-Valliammai, P.W.4-Chinnathal, P.W.5-Meiyappan, Ganesan and recorded their statements. On 06.11.2004, he examined P.W.25-Manisekaran, P.W.20-Moorthi, P.W.15-Haribabu, Karuppiah, P.W.16- Sivakumar, Rengasamy, Loorthusamy and recorded their statements. On 07.11.2004 he recorded the statements of P.W.7-Ilangovan, P.W.10-Ravichandran, Tamilselvam, Pandi, Kasi Konar, Balamurugan and recorded their statements. On 08.11.2004, he recorded the statements of Arumugam, Solai, Vellaichamy, Thetchinamoorthy and recorded their statements. On 10.11.2004, he recovered M.O.10-Cap from P.W.10- Ravichandran and recorded the statements of P.W.9-Karuppa Konar, Ganesa Konar and recorded their statements.
10.On 22.11.2004, on the basis of secret information, P.W.26 proceeded to Thirumayamkottai Perumal Temple along with P.W.21-Saminathan and Selvaraj and arrested the accused Jeyaraj (S.C.No.39 of 2007), A1-Venugopal, A2-Pandian, A3- Senthil, accused Govindan (S.C.No.91 of 2007) and A4-Solai and recorded their confession statements. Exs.P.28 to 33 are the admitted portions of confession statements of Jeyaraj, A1-Venugopal, A2-Pandian, Govindan, A3-Senthil and A4- Solai respectively. On the basis of the confession statements, he recovered the jewels in the presence of P.W.21-Samynathan and Selvaraj. Exs.P.7 to 12 are the signatures of P.W.21-V.A.O. Saminathan in the confession statements of Jeyaraj, A1-Venugopal, A2-Pandian, Govindan, A3-Senthil and A4-Solai respectively. Exs.P.13 to 20 are the signatures of P.W.21-V.A.O. Samynathan in the Recovery Mahazars.
11.P.W.26 gave a request for conducting Identification Parade. On the basis of the order of the Chief Judicial Magistrate, Pudukottai dated 29.11.2004, P.W.23 conducted Identification Parade on 03.12.2004 at Central Prison, Trichy. In the identification parade P.W.1-Premalatha identified all the accused. After conducting Identification Parade, P.W.23 gave a report Ex.P.23.
12.On 16.12.2004, the investigation officer-P.W.26 examined P.W.13- Alagappan, the telephone booth operator and recovered the note book-M.O.26. On 27.12.2004, he examined P.W.22-Karthikeyan and Prema and received Ex.42- Pathology Report. On 30.12.2004 he examined P.W.24-Dr.Aravali and recorded his statement. On 25.01.2005, he examined P.W.18, the Head Clerk of Judicial Magistrate Court, Thirumayam and recorded his statement. After completing the investigation, P.W.26 filed charge sheet as against the accused under
Sections 120(b),396 r/w 397 r/w 34, 395 r/w 367 r/w 34, 460 r/w 34, 302 and 302 r/w 34 I.P.C.
13. Before the trial Court, P.Ws.1 to 26 were examined and Exs.P.1 to P.42 and M.Os.1 to 26 were marked. All the incriminating pieces of evidence let in by the prosecution witnesses were put to the accused under
Section 313(1) of the Code of Criminal Procedure questioning the accused, and the accused denied the same as false. There was no oral or documentary evidence adduced on the side of the accused.
14. On consideration of the evidence on record, the learned Additional District and Sessions Judge (Fast Track Court), Pudukottai, found the first accused guilty under
<act id=ObGxPokB_szha0nWLtNN section=120>Sections 120(b) </act>r/w 395 r/w 397 r/w 34, 120(b) r/w 396 r/w 397 r/w 34, 120(b) r/w 460 r/w 34, 120 r/w 302, 302, 395 r/w 397 r/w 34, 396 r/w 397 r/w 34 and 460 r/w 34 I.P.C. and the accused 2 to 4 guilty under
<act id=ObGxPokB_szha0nWLtNN section=120>Sections 120(b) </act>r/w 395 r/w 397 r/w 34, 120(b) r/w 396 r/w 397 r/w 34, 120(b) r/w 460 r/w 34, 120(b) r/w 302 r/w 34, 302 r/w 34, 395 r/w 397 r/w 34, 396 r/w 397 r/w 34 and 460 r/w 34 I.P.C. and sentenced the first accused for the offence under
<act id=ObGxPokB_szha0nWLtNN section=120>Sections 120(b) </act>r/w 395 r/w 397 r/w 34, 120(b) r/w 396 r/w 397 r/w 34, 120(b) r/w 460 r/w 34, 395 r/w 397 r/w 34, 396 r/w 397 r/w 34 and 460 r/w 34 I.P.C. to undergo 7 years RI for each offence and fine amount of Rs.3,000/- in default to undergo 6 months RI for each offence and for the offence under Section 120(B) r/w 302 and 302 of I.P.C. to undergo life imprisonment for each offence and to pay a fine of Rs.3,000/- in default to undergo six months RI for each offence and sentenced the accused 2 to 4 under
<act id=ObGxPokB_szha0nWLtNN section=120>Sections 120(b) </act>r/w 395 r/w 397 r/w 34, 120(b) r/w 396 r/w 397 r/w 34, 120(b) r/w 460 r/w 34, 395 r/w 397 r/w 34, 396 r/w 397 r/w 34 and 460 r/w 34 to undergo 7 years RI for each offence and to pay a fine of Rs.3,000/- for each offence and in default to undergo 6 months RI and for the offence under
<act id=ObGxPokB_szha0nWLtNN section=120>Sections 120(b) </act>r/w 302 r/w 34, 302 r/w 34, of I.P.C. to undergo life imprisonment for each offence and to pay a fine of Rs.3,000/- in default to undergo six months RI for each offence.
15.Challenging the judgment of the learned Additional District and Sessions Judge (Fast Track Court), Pudukottai the present Criminal Appeals have been filed by the appellants/accused 1 to 4.
16.Before the trial Court originally there were six accused. Since accused Govindan and Jeyaraj were absconding, the case against Govindan was split up as S.C.No.39 of 2007 and the case against Jeyaraj was split up as S.C.No.91 of 2007 and the same are pending. Against the judgment of the trial Court in S.C.No.26 of 2005, Crl.A.No.58 of 2008 was filed by A4 by name Solai and Crl.A.No.26 of 2009 was filed by A1 to A3 viz. (1) Venugopal, (2) Pandian and (3) Senthil. Since both the appeals arises out of the same judgment, both the appeals are heard simultaneously and common judgment is pronounced.
17.Now the question that needs to be answered in this appeal is whether the accused/appellant could be held guilty under Sections as referred to above.
18. P.W.1-Premalatha is the resident of Neivasalpatti. She studied upto +2. Her father died four years prior to the occurrence. She had five brothers and one sister. Her brothers and sister are residing at Chennai. P.W.2 is her grand mother. Porkodi is her mother. As a result of the occurrence, Porkodi died. Her death was first ascertained by P.W.3-Dr.Marimuthu and then the body was sent to mortuary for conducting postmortem. Then a complaint was registered in Crime No.138 of 2004 and on the basis of the request of P.W.26, investigating officer postmortem was conducted by P.W.24-Dr.Aravazhi. The doctor opined that the deceased would appear to have died of asphyxia due to possible throttling, which is evident from Ex.P.25-Final Opinion. So, the death of Porkodi is not natural.
19.It is the case of the prosecution that all the accused conspired together and thereby committed a heinous offence of murder for gain. The said conspiracy has to be proved by the prosecution. The common intention has to be inferred from the circumstances particularly from the part played by the accused and the surrounding circumstances namely nature of the weapon used and the injury inflicted as well as the meeting of the minds among the accused who are being held constructively liable. This was pointed out by the Hon'ble Supreme Court in Kashmira Singh v. State of Panjab reported in AIR 1994 Supreme Court 1651.
20. The common intention has to be established as per the above decision of the Honourable Supreme Court. In this case, learned counsel for the accused 1 to 3/appellants Crl.A.No.26 of 2009 submitted that the 4th accused belonged to Pudukottai District and the other accused are residing at Namakkal District and the victim belonged to Pudukottai District. So, there is no conspiracy. Merely because the accused are residing in different districts, it is not rule of law that there cannot be any conspiracy. Persons involved in crime can belong to different regions. Merely because the accused are residing in different districts, it will not be a ground to show that there is no meeting of minds between the parties.
21. Learned counsel for the 4th accused/appellant in Crl.A.58 of 2008 relied on the decision of the Hon'ble Supreme Court in Jhapsa Kabari and others v. State of Bihar reported in AIR 2002 Supreme Court 312 and argued that when there was no evidence whatsoever to establish that any criminal act was done by them in furtherance of a common intention and when there is total absence of evidence both in respect of offences under
Section 34 as well as
Section 149, conviction of said accused persons with the aid or
Section 149 or 34 is not proper.
22.In the case on hand, the eye witnesses P.Ws.1 and 2 have not stated anything about the intention of the accused, but the intention has to be inferred. In this case accused 1 to 3 are not known to P.W.1. The 4th accused, who is a neighbour of her house and his house is shown in sketch. This was also confirmed by P.W.10 that there is enemity between their family and the 4th accused and he is not aware of the result of the litigation between the fourth accused and their family. So, the relationship between complainant's family and A4, who is the appellant in Crl.A.58 of 2008 is not cordial. The prosecution claimed that he was standing in front of the house of P.W.1 with knife. Till the arrest of the accused, absolutely there was no evidence to show that A4, the appellant in Crl.A.No.58 of 2008 was standing before the house of P.W.1. Before the arrest of the accused, nobody has stated that the 4th accused was present in the scene of occurrence. Even the witnesses P.W.11-Raja and P.W.13-Alagappan also turned hostile. So, in the absence of concrete, specific and acceptable evidence, it is not possible to say that the 4th accused was standing in front of the house of P.W.1 with common intention with the other accused. To prove conspiracy hatched to commit a heinous crime, circumstantial evidence brought on records must be such which would have no loose ends to tie. This was held in the decision of the Hon'ble Supreme Court in Aloke Nath Dutta vs. West Bengal reported in 2006(13) SCALE 467. Testing the case on hand in the light of the above decision, we are of the considered view that the theory of conspiracy is not established.
23.Another ground urged by the learned counsel for the accused is that the identification parade is not helpful to the prosecution. Admittedly, except the 4th accused the other accused are not known to P.Ws.1 and 2. The presence of the 4th accused Solai was not spoken by P.Ws.1 and 2. Furthermore, even though the 4th accused is known to P.Ws.1 and 2, they were unable to say that the 4th accused was present in front of their house. Originally, in this case there were six accused and the 4th accused herein originally ranked as 6th accused. P.W.1 identified the accused 1 to 5 in the identification parade. More specifically in the chief examination P.W.1 stated that only accused 1 to 5 were involved in the occurrence. So, the evidence of P.W.1 did not disclose the involvement of 4th accused/appellant in Crl.A.No.58 of 2008 in the crime.
24.P.W.2 did not say anything about the identity of the accused. When identification parade was conducted in respect of the accused except A4 by P.W.23 on the basis of Ex.P.22, the order of the Chief Judicial Magistrate, Pudukottai, P.W.1 identified all the accused three times. Relying on this learned counsel for the appellants argued that the identity of the accused was shown to the witnesses. So, it is of no value. They relied on the decision of this Court in Manoharan v. State by Inspector of Police reported in 2006 Crl.L.J. 4671, wherein it is held that mere identifying person in parade, in absence of any acceptable evidence from witnesses with reference to the last seen theory, cannot given out a formidable material to connect accused with crime in question.
25.Learned counsel for the accused 1 to 3 would submit that the first accused was taken to custody on 09.11.2004 and accused Nos.2 to 5 were taken to custody on 10.11.2004; their identity was exposed to the witnesses for 13 days; on 22.11.2004 they were taken to S.P. Office and video was taken; they were also taken to the scene of occurrence; they were exposed to the witnesses and they were detained in the police station for 13 days. Further, the identification marks of the body was exposed to the witnesses.
26.For this, the learned Additional Public Prosecutor submitted that the accused were not shown to the witnesses. In this case P.W.21, V.A.O was examined to prove the case of recovery. P.W.21's evidence would disclose that on 21.11.2004 i.e., one day prior to the alleged arrest of the accused, he was shown the accused and jewels. He admitted that the signatures Exs.P.7 to P.20 in the confessional statements and Mahazars were put on 21.11.2004. He was treated as hostile.
27.Learned Additional Public Prosecutor stated that P.W.21 committed mistake in making the date as 21.11.2004 as the date of visit to the Police Station. Though he was cross-examined, he has not stated that he was present during the time of recovery. Evidence of P.W.1 would show that their jewels were recovered within a week from the date of occurrence. The occurrence took place on 04.11.2004. So, according to her the jewels were recovered on 11.11.2004. Though she deposed that she went to the police station on 23.11.2004 for the first time, her grand mother P.W.2 stated that her grand daughter and grand son went to the police station daily and after 10 days she heard about the recovery of the jewels from them. So, the statement of P.W.1 that she went to the police station on 23.11.2004 for the first time is not correct because the evidence of P.W.2 would show that P.W.1 and his brother have visited the police station often. So, at this juncture the evidence of P.W.21 has to be taken into consideration. Though he turned hostile his evidence cannot be rejected in toto and any portion either in favour of prosecution or in favour of defence can be relied on as per the decision of this Court in Vijayan @ Jayapandian v. State (DB) reported in 2008 (1) CTC 295. The evidence of P.W.21 that the accused and the jewels were shown to him on 21.11.2004 can be relied on. Furthermore, the accused was shown to the witnesses. So, the evidentiary value of the identification parade is nil. The combined evidence of P.W.1 and P.W.21 would show that identity of the accused was shown to the witnesses. When the accused were shown to the witnesses prior to the identification parade, the identification parade is not helpful to the prosecution.
28.Learned Additional Public Prosecutor relied on the decision of this Court in Thavaraj Pandian v. State reported in 2003 Crl. L.J. 2642 and the decision of the Bombay High Court in Mushtaq Abdul Majeed Shaikh v. STate of Maharashtra reported in 2006 Crl.L.J. 628 and argued that no explanation was given by the accused for the recovery of jewels, so the recovery is correct. Evidence of P.W.21 discloses that the jewels were shown to him on 21.11.2004. Ex.P.34 is the Recovery Mahazar said to have been executed on the confession statement of the accused on 22.11.2004 at 17.00 hours near the Alamaram bus stop at Perungudi diversion road in Pudukottai-Arimalam Road and M.Os.16 to 21 were recovered in the presence of P.W.21-Samuelraj and Selvaraj. No doubt the accused signed therein. Ex.P.35 is the Recovery Mahazar of M.O.1 prepared on 22.11.2004 at 17.30 hours at Vadakupatti Village in Namunasamuthiram Police Station area. Ex.P.36 would show that M.Os.4 and 5 were recovered on 22.11.2004 at 23.00 hours at No.18 Mary @ Mariammal's house, S.V. Colony, Kongu Main Road, Tiruppur. Ex.P.37 would show that M.O.7 was recovered on 23.11.2004 at 03.00 hours at Arunthathiyar Colony, Nehru Nagar, Pattanam Muniappam Palayam, Namakkal District. Ex.P.38 would show that jewels were recovered on 23.11.2004 at 4.00 Clock at Namakiripettai, Namakkal District. Ex.P.39 would show that jewels were recovered on 23.11.2004 at 4.30 hours Namakiripettai, Namakkal District. Ex.P.40 would show that jewels were recovered at 23.11.2004 at 5.00 houses at Namakiri Pettai, Namakkal District. Ex.P.41 would show that M.Os.2, 24 and 25 were recovered on 22.11.2004 at 18.00 hours. Relying on the Recovery Mahazar counsel for the appellants argued that the Recovery Mahazar was prepared in police station and not in accordance with law. They pointed out that the jewels were recovered within a short time and though P.W.21-Saminathan has turned hostile, the other witness Selvaraj was not examined. For this he relied on the decision of the Hon'ble Supreme Court in Kailash Potlia v. State of A.P. reported in AIR 1996 Supreme Court 66 and Bahadur Singh v. state of Madhya Pradesh reported in AIR 2002 Supreme Court 289 and argued that the recovery is not proved.
29.When we perused Ex.P.37, it is shown that recovery was made on 23.11.2004 at 3.00 hours and Ex.A.40 would show that recovery was made on 23.11.2004 at 5.00 hours. In Ex.P.40 Selvaraj has not signed as though it was recovered on 23.11.2004. He signed there as it was recovered on 22.11.2004. This would create suspicion about the case of recovery. The prosecution does not given any explanation for non examination of the Selvaraj. On careful consideration of the evidence, we are of the view that the alleged recovery is not correct. Further, the evidence of P.W.1 would show that the jewels were recovered within one week from the date of occurrence ie. on 11.11.2004. So, we are not prepared to accept the date of recovery as 23.11.2004. So, the alleged recovery is not proved.
30.Learned counsel for the appellants claimed that the jewels alleged to have been stolen as per the F.I.R. and the jewels alleged to have been recovered are not the same. P.W.1 categorically stated that jewels stolen from the House are M.O.1 to 9. Nothing was elicited from P.W.1 to reject the same. The claim of the accused there is discrepancy regarding the jewels said to have been claimed in the F.I.R. and the jewels recovered cannot be accepted because F.I.R. is not an encyclopedia. Some jewels were stolen from the deceased. So, P.W.1 may not be in a position to say what are jewels worn by the deceased. Only after the investigation, the full particulars of jewels could be ascertained. So, the said claim has not improved the case of defence. However, the theory of conspiracy, the presence of the 4th accused in the scene of occurrence, identification parade and the recovery are not established in the manner known to law.
31.On careful consideration of the evidence on record, we are of the considered opinion that the prosecution has failed to prove its case. The lower Court has not considered the above grounds in a proper angle. Hence, the judgment of the lower Court warrants interference and the same is liable to be set aside.
32.Accordingly the Criminal Appeals are allowed and the judgment of conviction and sentence imposed by the trial Court on the appellants/accused 1 to 4 is set aside and the appellants are acquitted of all the charges framed against them. The fine amount if any paid by the accused shall be refunded to the accused.
sj To
1.The Additional Sessions Judge (Fast Track Court), Pudukottai.
2.The Inspector of Police, Namanasamuthiram Police Station, Pudukottai District.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.