M. Chockalingam, J.@mdashThis judgment shall govern these two appeals in Crl.A.(MD) Nos. 202 and 208 of 2009. Crl.A.(MD) No. 202/2009 has been brought forth by Accused No. 2 and Crl.A.(MD) No. 208 of 2009 has been brought forth by Accused No. 1. These two appellants, along with two others ranked as Accused No. 3 and 4, stood charged and tried by the Additional Sessions Division, Fast Track Court No. II, Tirunelveli, in S.C. No. 462 of 2008, whereby these two appellants and accused No. 3 were found guilty and awarded punishment as follows.
Accused Nos. Charge Under Finding Punishment
Accused No. 1 u/s 449 IPC Guilty 10 years RI and a
fine of Rs. 2000/-,
in default RI for
one year
Accused No. 1 u/s 302 IPC Guilty Life imprisonment
and a fine of Rs.
2000/-, in default RI
for one year.
Accused No. 1 u/s 397 IPC Guilty 7 years RI
Accused No. 2 u/s 302 r/w 34 IPC Guilty Life imprisonment and
a fine of Rs. 2000/-,
in default RI for one year.
Accused No. 2 u/s 397 r/w 34 IPC Guilty 7 years RI
Accused No. 3 Nos. 411 IPC Guilty 3 years RI and to
pay a fine of Rs. 10000/-,
in default RI for 3 months
In respect of Accused Nos. 1 and 2, all the sentences were ordered to run concurrently and the period already in jail was also ordered to be given set off u/s 428 Code of Criminal Procedure However, the trial court recorded an order of acquittal in respect of Accused No. 4.
2. The short facts necessary for the disposal of these appeals can be stated as follows:
(a) P.W.1 Venkatasubramanian is the husband of one Vijayalakshmi, the deceased in this case. He was a resident of Safire Apartments in Joseph Street, Perumalpuram, within the jurisdiction of the respondent Police Station. P.W.1 was working as Manager in Arasan Tractor Company at Thachanallur. He was also running a plastic shop at Anbu Nagar, Perumalpuram, in the name of ''Abinaya Plastics'' and the said shop was being looked after by his wife Vijayalakshmi.
(b) On 08.01.2007, as usual, P.W.1 went for his work in the morning hours leaving his wife Vijayalakshmi in the house. At noon hours i.e. at about 02.45 p.m., P.W.1 came back to his house, along with his driver Isakki Ganesh (P.W.2) in Car and found the house locked. Since there was no response inspite of his knocking the door, he enquired one Periyanayaki Ammal (P.W.18), a neighbour, who in turn informed that she noticed water flowing outside from the house of P.W.1 since morning hours and she heard noise about and hence she was of the impression that Vijayalakshmi was taking bath during the time. As his attempt to take the key which was hanging near the window had failed, P.W.1, entertaining a suspicion proceeded to his plastic shop at Anbu Nagar and enquired as to whether Vijayalakshmi came to shop but, he got only negative answer. Thereafter, he brought with him one Singa Raja (P.W.3), a boy employed in his shop, took the key which was hanging near the window and opened the doors and when he went inside, along with P.Ws.2 and 3, he found Vijayalakshmi''s dead body in a pool of blood and also found missing the gold jewels worn by her, namely thalichain with two thalis, one small chain, four bangles, one bracelet and one ear stud. Immediately, P.W.1 rushed to the respondent police station and gave Ex.P-1, the complaint, to P.W.17, the Sub-Inspector of Police, who was on duty. P.W.17, based on Ex.P-1 complaint, registered a case in Crime No. 7/2007 under Sections 302 and 380 IPC and prepared Ex.P-21, Printed FIR and despatched the same to the court and forwarded copies to the higher officials.
(c) On receipt of copy of Ex.P-21 FIR at 6.00 p.m. on 08.01.2007, P.W.20, the Inspector of Police, took up the investigation, rushed to the scene of occurrence at 6.30 p.m., made an observation and prepared Ex.P-2, the observation mahazar and also drew Ex.P-22, the rough sketch, in the presence of P.W.6 and P.W.13. In the meantime, P.W.20 also gave intimation for bringing Sniffer Dog and Forensic Expert to the scene. He conducted inquest on the body of Vijayalakshmi, in the presence of panchayatdars and witnesses, between 7.30 p.m. and 9.30 p.m. and prepared Ex.P-23, the inquest report. Thereafter he sent the dead body for postmortem with Ex.P-14, the requisition, through P.W.16 Head Constable. Thereafter, from the place of occurrence, P.W.20 recovered M.O.14 - a long hair, M.O.15 - a bunch of 30 cm. long hairs, M.O.20 - bloodstained sample wooden cupboard door, M.O.16 - pillow cover, M.O.11 - Churidar top, M.O.21 - bloodstained Window Screen, M.O.17 -bloodstained Marble Stone, M.O.18 - sample marble stone, M.O.24 (series) -Bloodstained glass pieces, M.O.1 - Gold Dollar, M.O.2 - gold hook, M.O.4 - ear stud, M.O.6 - nose stud, M.O.5 - gold ring and M.O.3 (series) - silver anklets under Ex.P-16 mahazar, attested by the same P.Ws.6 and 13. P.W.20 enquired P.Ws.1 to 3, P.W.18 and some other witnesses and recorded their statements.
(d) P.W.12, the Doctor, conducted autopsy on the dead body of Vijayalakshmi at about 10.40 a.m. on 09.01.2007. On completion of postmortem, P.W.12 issued Ex.P-15, the postmortem certificate, wherein he opined that the deceased would have died of complications of multiple injuries. M.O.13 - bloodstained brazier, M.O.12 - bloodstained Chudidar Pant and M.O.22 - black colour jatti, the bloodstained clothes, recovered from the body of the deceased and three finger nails handed over by the postmortem doctor, were recovered by P.W.20 under Ex.P-20 - Form 95.
(e) Thereafter, on 18.01.2007, P.W.20 gave Ex.P-24, the requisition, to the Court for sending the material objects for chemical analysis, which resulted in two reports, namely Ex.P-25, the Chemical Analysis Report and Ex.P-26, the Serologist''s Report. Thereafter, since P.W.20 got transferred, P.W.21 took up the further investigation on 08.07.2007.
(f) Pending investigation, P.W.21, the Inspector of Police, arrested accused No. 2 on 09.07.2007 in the presence of P.W.7, Julius and P.W.8 Mohan and recorded the voluntary confessional statement given by him and pursuant to the admissible portion of his confessional statement, marked as Ex.P-27, accused No. 2 took the police party to Meenakshi Pawn Broker Shop, where P.W.9 was the Manager, and took and produced M.O.8 series four gold bangles pledged by him through P.W.10 and the same were recovered by P.W.21 under Ex.P-10 mahazar attested by P.Ws.7 and 8. P.W.21 enquired P.Ws.7 to 10 and recorded their statements.
(g) On 10.07.2007, based on the confessional statement given by Accused No. 2, P.W.21 arrested accused No. 1 in the presence of P.W.11 and one Murugan and recorded his voluntary confessional Statement and pursuant to the admissible portion of the confessional statement, which is marked as Ex.P-11, accused No. 1 took the police party to his house at Shanthi Nagar from where he took and produced one bracelet and two gold thalis and the same were recovered under Ex.P-12 mahazar and he also produced M.O.19 knife and the same was recovered under Ex.P-13 mahazar.
(h) Based on the confessional statement of accused No. 1, P.W.21 arrested accused No. 4 and sent him for judicial custody. Further, based on the confessional statement of accused No. 1, P.W.21 took accused No. 3, who was already in judicial remand in respect of another case, into police custody, enquired him and recorded his confessional statement in the presence of P.W.2 and P.W.3. Pursuant to the admissible portion of his confessional Statement, which is marked as Ex.P-29, accused No. 3 took and produced two sovereign gold chain, which was recovered by P.W.21 under Ex.P-30 mahazar. P.W.21 enquired witnesses and recorded their statements. Thereafter, one Dinesh Kumar, Inspector of Police, took up the investigation and after perusing the case file, he filed final report against the accused under Sections 449, 302, 397, 414, 411 read with 120B IPC.
3. After committal proceedings, the case was taken on file by the Sessions Court in S.C. No. 462/2008 and necessary charges were framed. To prove the charges against the accused, the prosecution examined 21 witnesses as P.Ws.1 to 21 and marked 30 documents as Exs.P-1 to P-30 and produced M.Os.1 to 24. On completion of the evidence on the side of the prosecution, when the accused were questioned u/s 313 of the Criminal Procedure Code about the incriminating circumstances found in the evidence of prosecution witnesses, they denied all of them as false. On the side of defence, no witness was examined but, however, one document was marked as Ex.D-1. The trial court, after hearing the parties, took the view that the prosecution has proved the charges against accused Nos. 1,2 and 3 beyond reasonable doubt, found them guilty, convicted them thereunder and awarded punishments as referred to earlier but, however, recorded an order of acquittal in respect of accused No. 4. In such circumstances, these appeals are brought forth by accused Nos. 1 and 2.
4. Advancing arguments on behalf of the appellants with all vehemence in Tamil, the learned Counsel would submit that in the instant case the prosecution has miserably failed to prove its case either by adducing direct evidence or indirect evidence. According to him, the prosecution would claim that it was a murder for gain and accused Nos. 1 and 2 have done the same, while accused No. 1 entered into the house of the deceased, stabbed her to death and took away gold jewels worn by her and accused No. 2 guarded standing outside the house and accused Nos. 3 and 4 are receivers of stolen properties but, the trial court, while did not believe the case of the prosecution in respect of accused No. 4 and recorded an order of acquittal, had miserably failed and erroneously accepted the case of the prosecution and recorded a judgment of conviction and sentence in respect of accused Nos. 1 to 3.
5. Insofar as the conviction of accused Nos. 1 and 2 are concerned, learned Counsel would urge that in the instant case, a perusal of Ex.P.16, the recovery mahazar, and Ex.P-2, the observation mahazar, would clearly indicate that a number of gold jewels were actually found scattered, along with silver jewels, around the body of the deceased and if really the intention of the persons who got entered into the house was to commit murder for gain, they would have got sufficient time and situation to take all the things but, they have not done so and, therefore, this would not have been a murder for gain and this casts a doubt on the prosecution case.
6. Learned Counsel for the appellants pointing out to Ex.P-1, the complaint, pointed out that specific items of jewels alone (five numbers) were found mentioned as missing from the body of the deceased but, the recovery of jewels allegedly made from accused Nos. 1 and 2, in the presence of witnesses, are found to be different. In support of the above contention, learned Counsel would specifically point out that while in Ex.P-1 complaint only a thali chain is found mentioned, two thalis have been introduced at the time of recording 161 statement of P.W.1 at a later point of time and also at the time of trial before the Court and this discrepancy throws a doubt on the case of the prosecution.
7. Added further the learned Counsel, immediately after the alleged occurrence the investigation was conducted by P.W.20 and he was holding the investigation till 08.07.2007 and till such time he could not get any breadthrough but, immediately when the investigation was taken over by another investigation officer, namely P.W.21, on 08.07.2007, as a matter of surprise, on the next day i.e. on 09.07.2007 accused No. 2 was arrested by P.W.21 in the presence of P.Ws.7 and 8 and in whose presence M.O.7 (series) gold bangles-4 were recovered, but, however, these two witnesses have turned hostile and this creates doubt as to the arrest of accused No. 2 on 09.07.2007 and accused No. 1 on 10.07.2007. Added further the learned Counsel, the prosecution would claim that M.O.7 (series) bangles recovered from accused No. 2 were pledged with P.W.9 through P.W.10, the head clerk of Magistrate Court, as instructed by accused No. 1 but, P.W.10 would deny that those bangles were his own bangles and he did not know accused No. 2. Added further learned Counsel, P.W.10 has further stated that the jewels were pledged as early as on 13.12.2006 itself, which was actually much earlier to the date of the crime Learned Counsel would further submit that though P.W.11, recovery mahazar witness, in his evidence, at the first place, has stated that the jewels were actually recovered from the house of accused No. 1 in Shanthi Nagar, later in his cross-examination he has given a different version that the jewels were recovered from the house of accused No. 1 at Venkatesa Nagar and thus there is discrepancy as to the place from where recovery was made from accused No. 1.
8. Added further the learned Counsel, according to the prosecution accused No. 1 was arrested on 10.07.2007 but, P.W.10 in his evidence has stated that on 07.07.2007 itself accused No. 1 was brought to the P.W.9''s pawn broker shop in police jeep and thus it would clearly indicate that he was already under the custody of police. Pointing out to the order of this Court, dated 06.07.2007, made in HCP(MD) No. 303 of 2007, learned Counsel for the appellants submitted that the father of accused No. 1 had filed HCP(MD) No. 303 of 2007 before this Court specifically alleging that his son was taken into custody by police on 27.06.2007 itself and kept under illegal custody and hence he has got to be produced by the police and when the said petition came up for admission on 05.07.2007, a statement was given to the Court by the respondent police that the alleged detenu (accused No. 1) would be produced before the Court next day i.e. 06.07.2007 but, on 06.07.2007 a different version was given by the police that he was actually complying with the condition imposed on him in another case till 04.07.2007 and he did not turn up to the police station from 05.07.2007 and therefore he could not be produced but, however, the Court was not satisfied with the statement of the respondent police and therefore ordered for an enquiry by the District Collector, Tirunelveli District, as to the allegations made in the affidavit and to submit a report to the Court. Placing reliance on the above order of this Court, learned Counsel would contend that it would be indicative of the fact that accused No. 1 was already under the illegal custody of the police and apprehending that if an enquiry is made by the Collector as directed by this Court, they would land in trouble, the prosecution has foisted a false case against him.
9. Learned Counsel would add that in the instant case it is well admitted that there was security for the entire apartments, but no security guard was examined. It is also admitted that photographs were taken, but neither the photographer was examined nor photos were marked. It is also seen from the evidence of Doctor who conducted autopsy on the body of the deceased that virginal smear from the body of the deceased was preserved but, there was no evidence whether the same was sent for examination and any report was received. Learned Counsel added further that in the instant case P.W.20, the Inspector of Police, has admitted that Finger Prints Experts were called but, no evidence to that effect was adduced on the side of the prosecution.
10. Learned Counsel would further submit that P.W.1 has admitted that there were two keys for his house, one for his use and another for his wife but, however, P.W.1 on the date of occurrence came to the house without any key as if no key was available with him. Added further, Ex.P.-23, the inquest report, clearly indicate that the door was actually opened with the key available in the hands of P.W.1. He would add that it is also pertinent to point out that for some time P.W.1 was taken to the police station, on suspicion, to enquire as to whether he has got any role to play in the alleged crime and under such circumstances accused No. 1 and accused No. 2 have been falsely implicated in the case and the prosecution has miserably failed to prove its case and if looked at from any angle, it is a fit case for acquittal but, the trial Court has taken an erroneous decision and passed the impugned judgment which has got to be set aside by this Court.
11. The Court heard the learned Additional Public Prosecutor on all the submissions made by the counsel for the appellants and paid its anxious consideration to the submissions made on either side and perused the materials on record.
12. It is not in controversy that one Vijayalakshmi wife of P.W.1, was done to death in an incident that took place in the morning hours on 08.01.2007. Following the registration of a case, P.W.20, the Inspector of Police, took up the investigation. After conducting inquest, the dead body was subjected to postmortem by P.w.12, the Doctor, and after postmortem P.W.12 has issued Ex.P-15, the postmortem certificate, opining that the deceased died due to complications of multiple injuries. From the above evidence, it is quite clear that Vijayalakshmi died out of homicidal violence. Apart from that, the fact that the deceased died out of homicidal violence was never disputed by the appellants either before the trial Court or before this Court and hence the trial Judge was perfectly right in recording a finding that Vijayalakshmi died out of homicidal violence.
13. In order to substantiate the charges levelled against the appellants and two other persons, the prosecution has marched 21 witnesses. Out of these 21 witnesses, none claim that they say the occurrence and thus there is no direct evidence to the occurrence. In a given case like this where there is no direct evidence available and the case rests on circumstantial evidence, a duty is cast upon the prosecution to prove its case by bringing all the necessary circumstances which should complete the chain without a snap.
14. In the instant case, P.W.1 is the husband of the deceased. He, in his evidence, has stated that on 08.01.2007, as usual, he went for his work in the morning hours leaving his wife Vijayalakshmi in the house and when he back to the house at noon hours i.e. at about 02.45 p.m., along with his driver Isakki Ganesh (P.W.2) in Car for lunch, he found the house locked and since there was no response inspite of his knocking the door, he entertained a suspicion and proceeded to his plastic shop at Anbu Nagar and enquired the servants there as to whether Vijayalakshmi came to the shop and as he got only negative answer, he brought with him P.W.3 Singa Raja with him, took the key which was hanging near the window and opened the doors and when he went inside the side along with P.Ws.2 and 3 he found Vijayalakshmi''s dead body in a pool of blood and also some gold and silver articles around her body and immediately he went to the respondent and gave a complaint (Ex.P-1), based on which a case came to be registered.
15. In the instant case, a perusal of Ex.P-1 complaint would clearly indicate that only five items of jewels, namely, (i) thali chain, (ii) Dollar Chain, (iii) one pair of ear stud, (iv) four gold bangles and (v) one bracelet were stated to be found missing from the body of the deceased. As rightly pointed out by the learned Counsel for the appellants, a number of gold and silver ornaments were actually found scattered around the body of the deceased and if really the interest of the accused was to commit murder for gain, there was no need for them to leave a number of jewels, as found mentioned in Ex.P-2, the observation mahazar, as well as in Ex.P-16, the recovery mahazar, at the place of occurrence itself. Apart from that, a comparison of Ex.P-1 complaint and the recovery mahazars (Ex.P-10 and Ex.P-12) prepared for the recovery of jewels from accused Nos. 1 and 2 pursuant to their admissible portion of confessional statements would clearly reveal that there are discrepancies and difference as to the missing items of jewels and recovered.
16. In the instant case, immediately after the occurrence, the investigation was conducted by P.W.20, the Inspector of Police, for six long months and he could not find any breakthrough but, immediately when the investigation was taken over by P.W.21 on 08.07.2007, the prosecution was able to arrest the accused persons within a day or two. It is pertinent to point out that the prosecution would claim that accused No. 2 was arrested on 09.07.2007 and at that time he voluntarily gave a confessional statement in the presence of Pws.7 and 8 and pursuant to which, a part of the missing jewels (M.O.7 series Bangles-4) which were pledged with P.W.9, through P.W.10, Head Clerk of Judicial Magistrate Court, came to be recovered. However, the witnesses P.Ws.7 and 8, examined for their presence at the time of recording the alleged voluntary confessional statement given by the accused No. 2, have turned hostile. Added further, as rightly pointed out by the learned Counsel for the appellants, P.W.10 was not an ordinary man. He was the head clerk of a Judicial Magistrate Court during the relevant point of time and he, in his evidence, has categorically stated that he did not know accused No. 2.
17. Prosecution would claim that when P.W.10 was identified by Accused No. 1, they took P.W.10 to P.W.9''s pawn broker with whom jewels were pledged. It is pertinent to point out that P.W.10 has been treated as hostile witness. However, from his evidence, it is quite clear that his evidence was thoroughly contrary to the case of the prosecution. The prosecution would claim that accused No. 1 was arrested on 10.07.2007. On the contrary P.W.10 has stated that when he was enquired by the police on 07.07.2007, accused No. 1 was brought before him in police Jeep itself and at that time the police enquired accused No. 1 also. He has further stated that M.O.7 series bangles were his own bangles and he had pledged those bangles, along with other jewels, with Muthoot Bankers on 13.12.2006 itself. Therefore, the evidence adduced as to the alleged confessional statement given by the accused 1 and 2 and the recovery alleged to have been made from them are cannot be but false which are liable to be rejected.
18. Added circumstance, in the mind of the court, is Ex.D-1, the order of the Division Bench of this Court, dated 06.07.2007, made in HCP(MD) No. 303 of 2007, which was brought forth by the father of accused No. 1 alleging that his son was taken by the police on 27.06.2007 itself and kept under illegal custody by the police. A perusal of the order in HCP shows that when it came up for admission on 05.07.2007, a statement came to be made before the Court by the respondent police that the detenu (accused No. 1) would be produced before the Court on the next day, i.e. 06.07.2007. It is also seen from Ex.D-1 that when the matter was taken up for hearing on 06.07.2007, the respondent police informed the Court that accused No. 1 was not complying with the conditions imposed on him in some other case from 04.07.2007 and therefore he could not be produced before the Court. In the above circumstances, the Court has observed that it was not satisfied with the statement made by the police and felt that a detailed enquiry and report by the District Collector of Tirunelveli District as to the allegations made in the affidavit filed in support of the habeas corpus petition was called for. Hence the above fact that HCP (MD) No. 303 of 2007 was filed alleging that accused No. 1 was taken by police on 27.06.2007 itself and kept under illegal custody by the police and the statement made by the respondent police before the Court on 06.07.2007 was different from one made on 05.07.2007 would clearly indicate that the claim of P.W.21, the Inspector of Police, that he arrested accused No. 1 on 10.07.2007 is nothing but false and the same cannot be accepted.
19. Added circumstances are non-examination of the security guard of the house and servant maid of the house. As per the evidence of P.W.20, the Inspector of Police who investigated the case initially, he caused the place of occurrence to be photographed, but neither the photographer was examined nor photos and their negatives were produced before the Court and no explanation was forthcoming from the prosecution for the same. Added circumstance available to the appellants is the two key theory. P.W.1 would claim that he used to keep one key and his wife the other. A perusal of Ex.P-23, the Inquest Report, would clearly indicate that key was available in the hands of P.W.1, but he would claim that as there was no response inspite of his knocking the door, as if the key was not with him, he went to his shop, made an enquiry, came back to the house and then opened the house with the help of key which was hanging near the window and found the body of his wife lying in a pool of blood. Actually, a suspicion was entertained by the police on P.W.1 as to whether he has got any role to play in the crime and he was summoned to police station, enquired for a long time and this creates a doubt in the mind of the court as to the genuineness of the prosecution case. Under such circumstances, the Court is of the considered opinion that the prosecution has failed to prove the charges levelled against accused Nos. 1 and 2 and therefore sustaining the judgment of conviction rendered against them by the trial Court would be highly unsafe and the same is liable to be set aside.
20. In the result, both the appeals are allowed and the judgment of conviction and sentence imposed on the appellants by the trial Court in S.C. No. 462/2008, dated 29.07.2009, is set aside and the appellants are acquitted of all the charges levelled against them. The appellants are directed to be released forthwith unless their presence, in accordance with law, is required in connection with any other case. The fine amount, if any, paid by the appellants are directed to be refunded. The Court places its appreciation on record for the learned Counsel for the appellants, who putforward elaborately the evidence available to the Court.
