(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) State appeals.
2.Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No.I, Chengalpattu, made in S.C.No.398 of 2005 whereby both the respondents herein stood charged under Sections 302 read with 34 and 397 read with 392 IPC, and on trial, they were acquitted of the charges.
3.Short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is the son of the deceased Rani. P.W.2 is the wife of P.W.1. They were residents of Anjugam Nagar, Tiruvottiyur. The deceased was residing in the first floor while P.Ws.1 and 2 along with their children were residing in the second floor. All other parts of the building were rented out to different tenants. P.W.4 one Pushpa brought A-1 and introduced to the deceased. Thus A-1 came as a tenant in respect of the terraced portion on a rent of Rs.500/-, and there was a thatched shed put up. A-1 commenced his garment business. Five sewing machines were purchased by P.W.1 on the advice of Rani, and they were doing business along with A-1. Those machines were put in use. The business went in loss, and hence they decided to stop the business. The deceased wanted to sell five sewing machines. A-1 brought a purchaser who gave an advance of Rs.3000/-; but he did not come back. Thereafter, A-1 brought another person on 28.7.2005, and all the five sewing machines were sold for Rs.32,500/-. A-1 retained Rs.500/- towards his commission and balance Rs.32000/- was actually paid to the deceased. At that time, A-1 demanded Rs.3000/- which was paid as advance on the earlier occasion; but the deceased told him that A-1 was to make payment for which it has got to be adjusted. P.W.1 was also present at that time. Uttering the words "I would see to them", A-1 left the place.
(b) On 29.7.2005, A-1 asked P.W.1 to give a blue print of the garden belonging to his father-in-law for the purpose of purchase. P.W.1 replied that A-1 could get the same on 31.7.2005. P.W.1 was in his father-in-law's house on 31.7.2005 night where P.W.2 and the children were available. At about 8.30 P.M., A-1 phoned to P.W.1 stating that he visited their house and met the deceased, and she was going outside after locking the house. P.W.1 replied that A-1 could better go to Perambur to his father-in-law's house and collect the blueprint. Accordingly, A-1 went to Perambur and collected the blueprint at about 9.45 P.M. telling that he was on his way to Triplicane.
(c) At about 10.50 P.M. that day, P.W.1 leaving his wife and children in her parent's house, came to their house and found the room where the deceased was living, locked. He was under the impression that as informed by A-1, the deceased had gone outside. Since the key was with his wife P.W.2, who was in the parent's house, he went to the terrace and was lying there during night hours. Next morning P.W.1 informed to P.W.2 that the key was not available, and he needed the key since he was standing outside and asked her to come immediately. Accordingly, on 1.8.2005, in the morning hours, she came back at about 9.15 A.M., and with the duplicate key available in the hands of P.W.2, the portion was actually opened. It was found dark. When they got inside, they found the dead body of the deceased with stab injuries on different parts of the body. Apart from that, Rs.50000/- cash and 20 sovereigns of jewels were found missing. Then P.Ws.1 and 2 raised a distressing cry.
(d) P.W.3, who is running a tea shop nearby, came there. Equally, the neighbours also came nearby. P.W.3 gave a statement to the effect that he was running a tea stall near Sugam Clinic at Tiruvottiyur; that at about 5 or 5.30 P.M., on 31.7.2005, A-1 and A-2 came to the shop and were staying over there for two hours; that at that time, A-1 went outside and was phoning often; that at about 7.30 P.M., they left the shop; and that he found A-1 having a black rexine bag in hand.
(e) P.W.5 is residing in the opposite house to that of the deceased. According to him, at about 8.00 P.M., on 31.7.2005, he was sitting in a chair in front of his house, and at that time he found both the accused entering into the house of the deceased and after 20 to 25 minutes, they came out and locked the house, and he found M.O.19 rexine bag on the shoulder of A-1.
(f) P.W.6 a tenant of the deceased in the second floor, has stated that on 31.7.2005 at about 8 or 8.30 P.M., when he was coming down to go to a shop, he found A-1 and A-2 locking the house where the deceased was residing; and that at that time he found a rexine bag on the shoulder of A-1. All of them came to know about the occurrence on the previous night. They gave their statements. P.W.7 is carrying on a shop from whom A-1 and A-2 purchased two knives, M.Os.20 and 21, on 29.7.2005.
(g) Immediately P.W.1 from the place of occurrence rushed to the respondent police station where P.W.16, the Inspector of Police, was on duty. He gave Ex.P1, the report, on the strength of which a case came to be registered in Crime No.1967 of 2005 under
Sections 302 and
380 of IPC. The printed FIR, Ex.P17, was despatched to the Court.
(h) P.W.16 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P18. He recovered material objects from the place of occurrence. The photographs were caused to be taken, and the finger print expert was also called. The expert took all the finger prints available from the place. Then the Investigating Officer conducted inquest on the dead body of Rani in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P19. The dead body was sent to the Government Hospital along with a requisition, Ex.P14, for the purpose of autopsy.
(i) P.W.15, the Professor of H.O.D., Department of Forensic Medicine, Stanley Medical College and Hospital, on receipt of the said requisition, conducted autopsy on the dead body of Rani and found 20 injuries. He issued a postmortem certificate, Ex.P15, with his opinion that the deceased would appear to have died of shock and haemorrhage due to multiple injuries.
(j) Pending investigation, the Investigating Officer arrested A-1 and A-2 at about 4.00 P.M. on the day. They gave their confessional statements voluntarily, which were recorded in the presence of witnesses. The admissible part of the confessional statement of A-2 is Ex.P5, and that of A-1 is Ex.P4. M.Os.1 to 15, 17 and 18, jewels, and M.O.16 series, Rs.50000/- produced by them, were recovered under mahazars. They also produced M.Os.20 and 21, knives, and M.Os.25 and 26, shirt and pant respectively worn by A-1 at the time of occurrence, which were recovered under mahazars. They were sent for judicial remand.
(k) The finger print expert is P.W.9. The material objects were subjected to chemical analysis which brought forth Ex.P11, the chemical analyst's report, and Exs.P12 and P13, the serologist's reports. On completion of investigation, the Investigator filed the final report.
4.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 16 witnesses and also relied on 20 exhibits and 29 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has not proved its case beyond reasonable doubt and hence acquitted the accused, the respondents herein. Hence this appeal at the instance of the State.
5.In his sincere attempt of assailing the judgment of the trial Court, the learned Additional Public Prosecutor for the State would submit that the occurrence has taken place on 31.7.2005; that P.W.1 has categorically spoken about the motive that A-1 was having a joint business with the deceased; that five sewing machines of the deceased were actually sold for Rs.32500/-; that at that time, retaining Rs.500/- as commission, A-1 paid Rs.32000/- to the deceased; that while he made the demand of the earlier advance of Rs.3000/- given by a third party, it was not actually paid by the deceased, and at that time A-1 told that he would see to them, and thus he was on inimical terms; that he has also spoken about the phone call made by A-1 at or about 8 or 8.30 P.M. that A-1 met the deceased at her house, and the deceased after closing the house went outside, and thereafter A-1 proceeded to Perambur where P.W.1 was in his father-in-law's house, and he also received the blue print in respect of the immovable property of his father-in-law, and thereafter when P.W.1 came back to his house at about 10.50 P.M., he found the house of his mother the deceased locked, and then he went to the terrace and was lying; that the next morning he informed to his wife, P.W.2, who came over there, and with the duplicate key, they opened the doors and found the dead body; that thereafter P.W.1 rushed to the respondent police station immediately and gave the complaint, and thereafter the case came to be registered at about 10.30 A.M. on 1.8.2005; that the FIR has reached the Court at about 12.00 Noon on that day; that at or about the occurrence, the tea shop owner, P.W.3, had seen A-1 and A-2 staying in his shop for two hours, and A-1 was phoning often, and after sometime, he found A-1 with M.O.19, rexine bag, and his shop is situated nearby the house of the deceased; that apart from that, P.W.5, who was residing in the opposite house, and P.W.6, who was residing as a tenant in the first floor of the house of the deceased, witnessed both the accused entering and coming out of the house, and both of them have found the rexine bag on the shoulder of A-1.
6.Added further the learned Additional Public Prosecutor that it is pertinent to point out that A-1 was actually carrying on the business in the terraced portion of the deceased, and thus he was known to P.Ws.3 to 6 during the relevant time; that no reason was brought about to discredit or doubt the testimony; that a strong circumstance in favour of the prosecution was that all the material objects were recovered from the accused next day at about 4.00 P.M.; that both the accused on arrest have volunteered to give confessional statements, pursuant to which M.Os,1 to 15, 17 and 18, jewels, were recovered; that they were all jewels worn by the lady at the time of occurrence; that it is true that they have given joint confession; and that the trial Court has found that this joint confession and the recovery of the material objects were not in accordance with law.
7.Relying on a decision of the Apex Court reported in 2005 SUPREME COURT CASES (CRI) 1715 (STATE (NCT OF DELHI) V. NAVJOT SANDHU), the learned Additional Public Prosecutor would submit that merely because it happened to be joint confessional statement or pursuant recovery made, it cannot be branded as illegal either, or it cannot be accepted in law; and that all the material objects were recovered from the accused within a short span of time, which would clearly indicate that it is a fit case where the Court has to draw the inference under Sec.114-A of the Evidence Act.
8.It is further added by the learned Additional Public Prosecutor that the trial Court has laboured much on the finger prints that were lifted from the place of occurrence; that the finger print expert also has given opinion that the finger prints have actually been tallying with A-1; that much comment was made on the side of the defence and accepted by the trial Court that all the finger prints which were available in the bureau were not taken; that had it been taken, it would have given otherwise result, and the trial Court has accepted such a contention.
9.The learned Additional Public Prosecutor would further add that in the case on hand, the prosecution relied on the circumstantial evidence which would clearly indicate the nexus of the accused with the crime; that even the scientific evidence adduced by the prosecution was in their favour; that M.Os.25 and 26, shirt and pant respectively, have been recovered from A-1 pursuant to the confessional statement voluntarily made; that they were all sent along with the other material objects for analysis; that even the gold bangles, M.O.14, and the knives, M.Os.20 and 21, recovered from the accused, were found to contain B group blood and that were tallying with the blood group of the deceased; that under the circumstances, the prosecution has brought forth all the necessary circumstances pointing to the guilt of the accused leaving no doubt, much less reasonable doubt; that the trial Court has not taken into consideration any of the aspects, but has found the respondents not guilty on the flimsy grounds; that the same was actually lacking in reason; rather, it was perverse, and hence it has got to be set aside, and they have got to be dealt with in accordance with law.
10.Contrary to the above contentions, it is submitted by the learned Counsel for the respondents that it is true that the occurrence, according to the prosecution, has taken place at about 8 or 8.30 P.M. on 31.7.2005; that P.W.1 has given the complaint at about 10.30 A.M. on 1.8.2005; that the FIR has reached the Metropolitan Magistrate along with Ex.P1 at about 12.00 Noon; that all these documents have been clearly fabricated in order to suit the convenience of the prosecution case; that even from the evidence of P.W.1, it would be quite clear that he had got the prior motive against A-1; and that there was a suggestion made to P.W.1 that the deceased mother was retaining all the rental recovery, and he had quarrels with his mother, and therefore at or about the time it was he who left the house, and under the circumstances, there was all possibility that the crime could have been committed by him.
11.The learned Counsel would further add that the specific motive with which the prosecution case was placed before the trial Court was that there was a demand of the return of advance of Rs.3000/- by A-1; but, the same was refused to be given by the deceased, and A-1 got wild and as a result, he has committed the crime; but the inquest report would clearly indicate that there was a business loss, and the relationship became strained, and that was the reason for committing the crime; that the inquest report has come into existence at about 12.00 Noon on 1.8.2005; that if it is true that the FIR has come into existence by 10.30 A.M. and the very same Police Officer has also recorded the FIR, there was no reason to give a different motive in the inquest report; and that this would be indicative of the fact that the prosecution has not only failed to prove the motive, but also come with a false case.
12.Added further the learned Counsel that as far as the finger print expert's opinion was concerned, it was rightly rejected by the trial Court; that finger prints were alleged to have been taken from one bureau; that it is well admitted by the expert that finger prints were actually not taken from the other bureau; that both the bureaus were actually in the house of the deceased; that had it been taken and produced before the Court, that would be detrimental to the prosecution case, and the finger prints which were actually found in the other bureau would have been tallying with that of P.W.1 or somebody, and under the circumstances, that part has been suppressed by the prosecution.
13.Added further the learned Counsel that much reliance was placed by the prosecution on the evidence of P.W.9 for the recovery of the jewels namely M.Os.1 to 14, 17 and 18 from A-1 and A-2; that it was a joint recovery; but the evidence was otherwise; that according to P.W.9, no specific recovery was made; that the recovery was made from both of them; that the case of the prosecution that a particular item was recovered from A-2, and the other item was recovered from A-1 was inconsistent with the evidence of the Investigating Officer and also the statements recorded under Sec.161 Cr.P.C.; that all would go to show that the alleged recovery could not have been made as put forth; that even the photographer has categorically stated that the bangles which were alleged to have been recovered were actually in the dead body when the dead body was taken to postmortem; that when the postmortem was done, these bangles should have been handed over to P.W.1 or one of the relatives; on the contrary, recovery was shown as if it was done from A-1 at the time when he was arrested; that this would be contrary to the prosecution case and would also tell upon that these jewels which were marked as M.Os.1 to 14, 17 and 18 were actually not recovered and in order to make up a case, it was actually thrusted into the prosecution story in order to strengthen the case, but in vain.
14.The learned Counsel would further add that the trial Court has rightly rejected the evidence of P.Ws,3, 5 and 6 as they could not have seen the accused at all; that it would be quite clear that they were all chance witnesses; that at the time of cross-examination, their evidence became shaky; that under the circumstances, the trial Court was not ready to believe their evidence; that the prosecution as is expected in law never placed the necessary circumstances nor proved its case, and the trial Court was perfectly correct in rejecting the prosecution case and hence the judgment of the trial Court has got to be sustained.
15.The Court paid its anxious consideration on the submissions made and also looked into the materials available.
16.The gist of the case of the prosecution is that A-1 and A-2 entered into the house of the deceased Rani, caused her death and robbed the jewels which were actually placed before the trial Court. It is an admitted position as it was not controverted, and also the evidence of P.W.1 that A-1 had a joint business along with the deceased in the terraced portion of the house where the deceased was living in the first floor, and P.Ws.1 and 2 were living in the second floor, and since the business went on loss, the five sewing machines which belonged to the deceased were to be sold, and they were actually sold for Rs.32500/- to a party, and retaining the commission of Rs.500/-, Rs.32000/- was actually paid to the deceased by A-1, and even before that transaction, there was an offer by a third party who gave an advance of Rs.3000/- which was retained by the deceased, but neither refunded to the person who paid the amount nor to A-1. It would further go to show that A-1 was demanding for the same, but she refused to pay it back, and at that time, P.W.1 was present, and A-1 was uttering "I would see to that". This part of the evidence of P.W.1 would clearly indicate that not only the relationship was strained, but also A-1 has got a grudge against the deceased.
17.At the outset, this Court is not unmindful of the caution made by the Apex Court that in a given case like this, where the trial Court on appreciation of evidence has made an order of acquittal, unless and until the judgment is perverse or the order of acquittal is without any reason, the appellate Court should not disturb the judgment. It is also to be stated that this Court as the Court of the first appeal on the criminal side can go into and make re-appreciation of the evidence in order to find out the truth.
18.At this juncture, it would be apt and appropriate to reproduce the decision of the Apex Court reported in (2004) 10 SCC 692 (MAIN PAL V. STATE OF HARYANA) as follows:
"12. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. As a matter of fact, in an appeal against acquittal, the High Court as the court of first appeal is obligated to go into greater detail of the evidence to see whether any miscarriage has resulted from the order of acquittal, though it has to act with great circumspection and utmost care before ordering the reversal of an acquittal. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference."
19.In the case on hand, on appraisal of evidence and marshaling the same, the following circumstances are noticed by the Court.
20.From the evidence of P.W.1, it would be quite clear that P.W.1 leaving his mother in the house went to father-in-law's house on 31.7.2005 where his wife P.W.2 was staying with the children; that at about 8.30 P.M., he received a phone call from A-1 that he had gone to the house where the deceased was staying, and he met her and wanted to get the blueprint. P.W.1 has further stated that A-1 informed him that the deceased had closed the house and had gone outside; that in reply, P.W.1 has told him that he was staying in the father-in-law's house at Perambur, and A-1 can come and collect the same; and that accordingly, A-1 went over there and collected the blueprint at about 9.45 P.M. and left the place as if he was going to Triplicane. This particular part of the evidence is found place in Ex.P1, the report. From this it would be quite clear that on the day just before the occurrence, A-1 had gone to the house of the deceased and met her, and therefrom he phoned over to P.W.1. According to his evidence, when he came to the house of the deceased, it was found locked, and he took the words of A-1 as true, and the portion in the first floor was actually kept closed, and since the key was with his wife, who was in the parental home, he went to the terraced portion and was lying there that night, and the next morning, he phoned to P.W.2, who immediately came over there, and with the help of the duplicate key, they opened the doors, and it was in darkness, and they found the dead body in a pool of blood, and the jewels were actually missing. At this juncture, it is pertinent to point out that at the time of cross-examination, he has stated that his mother has told him that she was in possession of Rs.50000/-, and it cannot be actually put in bag, and that Rs.50000/- was found missing along with the jewels. Ex.P1, the report, would also indicate that the jewels and Rs.50000/- were missing. At this juncture, it remains to be stated that immediately P.W.1 had gone to the police station and gave Ex.P1, the report, and thereafter the case came to be registered at 10.30 A.M. where the entire narration of the incident has been given. Immediately on the registration of the case, the FIR has reached the Magistrate at about 12.00 Noon. All would go to show that the narration which was made at the earliest point of time and also as spoken to by P.W.1 has got to be taken as true and genuine.
21.Apart from the above, to its advantage the prosecution had the evidence of P.Ws.3, 5 and 6. P.W.3 was a tea shop owner having a tea shop nearby the house of the deceased. According to him, A-1 and A-2 came to his shop and were staying over there for two hours till 7 or 7.30 P.M., and A-1 went outside and was phoning, and thereafter he came at about 7.30 P.M. and thereafter both of them met the deceased, and A-1 had M.O.19 rexine bag in hand. This M.O.19, rexine bag, belonged to the deceased, and this was also spoken to by P.W.1 in the box. This has actually been recovered from A-1 at the time when he was arrested and his confessional statement was recorded.
22.As far as the evidence of P.W.5 is concerned, according to him, he was staying in the opposite house, and at about 8.30 P.M., he was sitting outside in a chair, and he found A-1 and A-2 entering into and coming out of the house of the deceased after locking the house, and they went from the place. According to P.W.6, he was a tenant in the first floor of the house of the deceased. At about 8.30 P.M. he came down to go to a shop, and at that time, he found A-1 and A-2 closing the house and were just moving from the place. Even as per their evidence, it would be quite clear that they knew A-1 all along the period since he was actually doing his business in the terrace. Hence they had got occasion to see him every day and also during the relevant time. From the evidence of P.Ws.3, 5 and 6 it would be quite clear that they could have seen them. The learned trial Judge on the flimsy reasons has rejected the testimony of these three witnesses. The comment made by the trial Court for rejecting the evidence, in the considered opinion of the Court, would clearly indicate that it cannot be taken as reasons at all.
23.The strong circumstance, in the considered opinion of the Court apart from all the above, is the recovery of so-called M.Os.1 to 14, 17 and 18, jewels, from A-1 at the time of the arrest. The occurrence has taken place on 31.7.2005, and the case came to be registered at about 10.30 A.M. on 1.8.2005. Then the FIR has reached the Magistrate at 12.00 Noon. A-1 was arrested along with A-2 at about 4.00 P.M. At the time of arrest, according to the evidence of P.W.9, they came forward to give a confessional statement which was recorded by P.W.16, the Investigator, pursuant to which, they have produced the material objects, and except only one item, others have been recovered from A-1 along with two knives, M.Os.20 and 21, apart from M.Os.25 and 26, shirt and pant respectively. All have been recovered under a cover of mahazar. At this juncture it is true that it was a joint confessional statement. Now the law is settled by the decision of the Apex Court reported in 2005 SCC (CRI) 1715 that merely because the confessional statement was given by the accused in plural, it cannot be a reason to reject the same, and it could rather be taken as true for which proposition the Court could rely upon. It would be more apt and appropriate to reproduce the decision of the Apex Court reported in 2005 SUPREME COURT CASES (CRI) 1715 (STATE (NCT OF DELHI) V. NAVJOT SANDHU) as follows:
"Joint disclosures
145. Before parting with the discussion on the subject of confessions under
Section 27, we may briefly refer to the legal position as regards joint disclosures. This point assumes relevance in the context of such disclosures made by the first two accused viz. Afzal and Shaukat. The admissibility of information said to have been furnished by both of them leading to the discovery of the hideouts of the deceased terrorists and the recovery of a laptop computer, a mobile phone and cash of Rs.10 lakhs from the truck in which they were found at Srinagar is in issue. Learned Senior Counsel Mr Shanti Bhushan and Mr Sushil Kumar appearing for the accused contend, as was contended before the High Court, that the disclosure and pointing out attributed to both cannot fall within the ken of
Section 27, whereas it is the contention of Mr Gopal Subramanium that there is no taboo against the admission of such information as incriminating evidence against both the accused informants. Some of the High Courts have taken the view that the wording "a person" excludes the applicability of the section to more than one person. But, that is too narrow a view to be taken. Joint disclosures, to be more accurate, simultaneous disclosures, per se, are not inadmissible under
Section 27. "A person accused" need not necessarily be a single person, but it could be plurality of the accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to
Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of
Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of
Section 27. However, there may be practical difficulties in placing reliance on such evidence. It may be difficult for the witness (generally the police officer), to depose which accused spoke what words and in what sequence. In other words, the deposition in regard to the information given by the two accused may be exposed to criticism from the standpoint of credibility and its nexus with discovery. Admissibility and credibility are two distinct aspects, as pointed out by Mr Gopal Subramanium. Whether and to what extent such a simultaneous disclosure could be relied upon by the Court is really a matter of evaluation of evidence. With these prefatory remarks, we have to refer to two decisions of this Court which are relied upon by the learned defence counsel."
24.In the case on hand, from the available evidence, it would be quite clear that within a reasonable time, all the jewels stolen have been recovered from A-1. It would also go to show that he is the thief himself or he is the receiver of the stolen property. This circumstance coupled with the other circumstances as stated above would indicate that A-1 was the person who has committed the crime of murder and was in possession of all the jewels with him.
25.Yet another circumstance which also stood in favour of the prosecution, is the scientific evidence. M.O.19, rexine bag, along with M.O.14, gold bangles and M.Os.25 and 26, shirt and pant respectively, and also M.Os.20 and 21, knives, were all taken for analysis along with the clothes worn by the lady at the time of the occurrence. The chemical report along with the serologist's reports was placed in the hands of the Court. A perusal of the same would clearly indicate that they actually contained B group blood, and thus it would also be telling upon the truth of the prosecution case. All put together would clearly indicate the involvement of A-1 in the case.
26.As far as A-2 is concerned, P.Ws.3, 5 and 6 were not acquainted to him, and he was quite new. Under such a situation, an identification parade should have been conducted; but the Investigator failed to make any request therefor. As far as the recovery is concerned, the confessional statement as put forth would indicate that a particular part of item was recovered from A-1 and that was the statement made by A-2 and nothing else. In such circumstances, as regards A-2, this Court is unable to agree with the case of the prosecution.
27.As far as A-1 is concerned, the circumstances narrated above would be indicative of his direct nexus to the crime. Now the contention put forth by the learned Counsel for the respondents that the finger prints were not taken from one of the bureaus in which they were actually found cannot by itself be a reason to reject the prosecution case. Even barring the evidence of the prosecution in respect of the finger print expert and the report, the prosecution had its case as stated above.
28.The learned Counsel for the respondents brought to the notice of the Court that there are certain discrepancies in the inquest report and also in the FIR. Merely because the motive part is mentioned by the Investigator mistakenly, the same by itself cannot be a reason to take the truth or rigor of the prosecution case. The other contention put forth by the learned Counsel for the respondents that these bangles if actually found on the dead body of the deceased could not have been recovered from A-1, and this recovery was false cannot be accepted for the simple reason that there is nothing to indicate that the bangles which were worn by her and found on the dead body were actually recovered from him. No such cross-examination was made as far as the Investigating Officer was concerned.
29.It is pertinent to point out that when the judgment of the trial Court is perused, this Court is able to see the anxiety of the trial Court to acquit A-1. Since there is sufficient evidence pointing to the guilt of A-1, this Court has no option than to make the judgment of the trial Court undone. Accordingly, it has got to be upset.
30.Accordingly, the judgment of the trial Court acquitting the first respondent/A-1 is set aside, and A-1 is found guilty under
Sections 302 and
397 read with 392 of IPC. NBW is issued against the first respondent/A-1 for his production on 7.8.2009, regarding question of sentence. For the reasons stated above, this criminal appeal is dismissed as against the second respondent/A-2.
List the matter on 7.8.2009.
nsv
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C.A.No.336 of 2006 M.CHOCKALINGAM, J.
AND C.S.KARNAN, J.
(Order of the Court was made by M.CHOCKALINGAM, J.) On issuance of non-bailable warrant, the first respondent/A-1 is produced before the Court. He is enquired as to the question of sentence. According to him, he has not committed the offence, and he is having wife and young children, and they have got to be maintained, and under the circumstances, leniency has got to be shown.
2.This Court considered the statement put forth by the convict. This Court is of the considered opinion that since he is found guilty under
Sections 302 and
397 read with 392 IPC, it is not a fit case where the Court could show any leniency. Under the circumstances, life imprisonment is awarded to A-1 under Sec.302 IPC, and seven years Rigorous Imprisonment is ordered under Sec.
397 read with 392 IPC. Considering the circumstances, no fine is imposed. Both the sentences are to run concurrently.
3.Accordingly, this criminal appeal is allowed in respect of the first respondent/A-1. As regards return of M.Os.1 to 18 to P.W.1, the order of the trial Court will hold good.
nsv To:
1.The Additional District and Sessions Judge Fast Track Court No.I Chengalpattu
2.The Public Prosecutor High Court, Madras.
3.The first respondent / A 1