IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.12.2009
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH
CRIMINAL APPEAL NO.392 OF 2009
Lakshmanan .. Appellant
Vs.
State rep. by
Inspector of Police,
H-4, Korukkupet Police Station.
Chennai. .. Respondent
This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of VI Additional Sessions Judge, Chennai made in S.C.No.386 of 2004 dated 10.11.2006.
For Appellant : Mr.S.R.Sankarasubbu
For Respondent : Mr.Babu Muthu Meeran, APP
- - - -
JUDGMENT
(The judgment of the Court was made by V.PERIYA KARUPPIAH, J.)
This appeal is directed against the judgment of conviction and sentence passed by the trial court against the 2nd accused u/s.302 I.P.C to undergo life imprisonment and also to pay a fine of Rs.1,000/- in default to undergo six months simple imprisonment; u/s. 449 I.P.C to undergo life imprisonment and also to pay a sum of Rs.1000/- and in default to undergo six months simple imprisonment; u/s. 395 I.P.C to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo six months simple imprisonment and u/s. 404 I.P.C to undergo three years rigorous imprisonment and to pay a fine of Rs.500/- in default to undergo three months simple imprisonment and the sentence imposed against the 2nd accused which are directed to run concurrently and the period undergone by the 2nd accused was ordered to be set off u/s. 428 Criminal Procedure Code.
2. The case of the prosecution in brief would be as follows:-
(a) On 13.12.1995 in between 10.15 a.m and 12.15 p.m the accused A1 to A5 including two more accused had assembled together to commit robbery in Door No.49, Araniarangam street and also with an intention to murder one Jansi Rani with the knife in order to take the golden jewels from her and accordingly they committed the murder of Jansi Rani and took away the gold jewels worn by her. Upon the complaint given regarding the incident, the respondent police had registered a case in Cr.No.974/1995 u/s. 302, 385 r/w. 397 and 447 I.P.C against A1 to A5 and also two other accused and filed the charge sheet before the 15th Metropolitan Magistrate. The case was taken on file in C.C.No.375/2000 by the said court and the same was committed to the learned Principal Sessions Judge, Chennai and the same was taken on file in S.C.No.386/2004 and the case was made over to the VI Additional Sessions Judge, Chennai for disposal.
(b) The lower court had framed necessary charges against all the five accused available in this case and had proceeded to examine the witnesses. Learned trial judge had examined 26 witnesses, 53 documents and 50 material objects on the side of the prosecution.
3. The case of the prosecution as spoken through the evidence produced on their side would be as follows:
(a) P.W.2 is the husband of the deceased Jansi Rani. P.W.1 is the father-in-law. P.W.1 and P.W.2 were living in separate apartments in the same building. P.W.2 was running a plastic industry. On 13.12.1995, P.W.2 had gone from Korrukupet to Ponnery on a message received by him that his friend expired. P.W.3 was the servant of P.W.2 and he informed P.W.3 to go to the house and take food for children and also to bring the children to the house from the school. P.W.3 had telephoned to the house of P.W.2 but it was not taken by anyone. Thereafter, he sent one Thangarasu to the house of P.W.2 at about 12.45 p.m, and the said Thangarasu went to the house where he found the deceased was murdered in the bathroom and he came back and informed the same to P.W.3 and the same was informed to P.W.1 and P.W.2. Accordingly P.W.1 and P.W.2 went inside the house and found the deceased lying with the injuries in the bathroom. All the jewels worn by the deceased were missing except the ear studs. P.W.1 and P.W.2 had found that the bureau was kept opened, the jewel box was found empty and the cash was missing. P.W.1 gave complaint Ex.P.1 on 13.12.1995 at 1.15 p.m. P.W.29 Sub Inspector of Police registered the case in Cr.No.974 of 1995 u/s. 302 and 380 I.P.C. P.W.20 also prepared F.I.R Ex.P.26 and sent them to court as well as other officers concerned and the printed F.I.R in Ex.P.26 was forwarded to the court and the investigator.
(b) Investigator - P.W.24 had gone to the police station and received the copy of the F.I.R and went to the scene of occurrence and prepared the Observation Mahazar Ex.P.2 and prepared a Rough Sketch Ex.P.27 in the presence of witnesses. P.W.18 photographer was taken and he had taken photographs of the scene of occurrence and the body of the deceased. Material objects were collected there on and blood samples were also seized in the place of occurrence and were sent to chemical and scientific examination. The investigator had conducted the inquest on the same day from 4.00 p.m to 7.00 p.m and prepared the inquest report in Ex.P.28. P.W.24 had caused the dead body of the deceased Jansi Rani to the Government hospital for conducting autopsy with the requisition to conduct autopsy. P.W.17, Post Mortem Doctor had performed autopsy on the body of the deceased Jansi Rani and had issued a Post Mortem Certificate Ex.P.22 in which he had opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained by her. The examination of witnesses would lead to suspicion against accused namely Mariappan and the investigator had searched for him. On 19.02.1996, at about 06.45 a.m in Tenkasi Taluk near Sankarankovil road near Anna Statue, he arrested the absconding accused Mariappan and recorded his confession in the presence of witnesses including the confession leading to recovery in Ex.P.46. In pursuance of the said confession Ex.P.46 the investigator had recovered one 'Western quartz' watch and two folding knives from the accused under cover of mahazar in Ex.P.35. On the same day at about 10.15 a.m a gold chain which was buried at the backyard of house of one Pakiasamy, was recovered under Ex.P.36. At about 11.00 a.m one pair of ear studs, one nose stud, one gold ring were unearthed from the place where it was buried near the plantain grove of one Madasamy. At about 11.30 a.m a silver waist chain, one pair of Bombay model golden bangles, one pair of Singapore cutting gold bangles, one pearl gold bangle, one pair of white stone ear studs, another pair of gold studs, one gold ring, another ring with red stone were also unearthed from a place 200 feet away from the flat of one Chinnamani Nadar under the cover of Ex.P.38. At 12.30 p.m one golden ring inscribed as 'A.Usha' and another golden ring embedded the name 'A.Hema' and one T.V. Model ring were recovered which were buried 35 feet near the road of Ramachandran land. The said properties were recovered under Ex.P.39 mahazar. On 21.02.1996, at about 08.00 a.m two inland letters Ex.P.33 were recovered from one Mala, wife of Mariappan. At about 08.45 a.m, a sum of Rs.8,000/- was recovered from one Venkatesan under the cover of Ex.P.41. a gold bracelet was recovered on the same day from one Thamichand under Ex.P.43 mahazar. On the same day at about 09.30 a.m, one gold chain with dollar and one gold ring and a sum of Rs.10,000/- with denomination of Rs.100/- were recovered from one Srinivasan under Ex.P.44 mahazar. On 22.02.1996, at about 01.00 p.m one dollar and one knife was recovered. On the same day, P.W.24 had arrested the accused Kannan alias Muniyandi the 1st accused one Muthu and one Lakshmanan the appellant herein near the Vimco Nagar Railway gate and recorded their confession statements leading to recovery from accused Kannan and Lakshmanan the appellant herein in Ex.P.29 and Ex.P.30 respectively.
(c) In pursuance of the said confession statement leading to recovery, the accused Kannan had produced various articles which are recovered in M.Os.39,40,24,25,26,47 and 48 under the cover of mahazar Ex.P.10. On 22.02.1996, at about 1.30 p.m the appellant/2nd accused produced a pawn ticket in his name and it was seized under mahazar Ex.P.11. On 24.02.1996, P.W.24 had proceeded to recover the gold necklace on the identification of the appellant/accused Lakshmanan from the pawn broker shop under the mahazar Ex.P.30. The investigator P.W.24 had also taken the 1st accused and another accused Muthu and recovered various other properties and had prepared mahazar for their recovery. Thereafter, the accused 1 to 3 including the appellant were taken to police custody and the properties recovered were on the identification of 1st accused Kannan and co-accused Muthu. On 25.02.1996, P.W.24 had directed P.W.21 to take the finger prints of the appellant/A22 along with other accused and accordingly finger prints were taken. Thereafter, P.W.24 produced 1st accused and 2nd accused and two other absconded accused Mariappan and Muthu to judicial custody after the completion of the police custody. He had given an requisition for sending the knives for chemical analysis.
(d) After P.W.24 transfer, P.W.25 had relayed upon and completed the investigation and filed final report against all the seven accused. Out of the seven accused A5 to A7, Arumugam, Raja and Raji were shown as absconding accused. During the pendency of the case, P.W.26 Inspector of Police arrested the absconding accused 5 to 7 on 03.02.2003. Out of seven accused, the accused Mariappan and Muthu were absconding and the case against them was split up and the remaining case was proceeded against the available five accused namely A1 to A5.
4. On the incriminating circumstances spoken against the accused they were examined u/s. 313 Cr.P.C and the accused had flatly denied the evidence as false and they did not elect to examine any witness on their side.
5. The trial court had proceeded to hear the arguments and recorded conviction and sentence against the appellant/A2 u/s. 302, 449, 395 and 404 to undergo punishment as aforesaid.
6. Against the said conviction and sentence passed by the trial court the appellant/A2 has preferred the present appeal.
7. Heard Mr. S.R.Sankarasubbu, learned counsel for the appellant and Mr.Babu Muthu Meeran, learned Additional Public Prosecutor for the State.
8. The learned counsel for the appellant/A2 would submit in his argument that the trial court has miserably failed to prove discard the evidence adduced on the side of the prosecution but had entered the conviction and sentence against the appellant, despite there was no incriminating circumstances to implicate the appellant/A2 u/s. 302 I.P.C. He would further submit in his argument that except the recovery of some jewels, there is no other incriminating circumstances against the appellant/A2 warranting a sentence of four life imprisonments for a single conviction u/s. 302 I.P.C. He would further submit that the recovery said to have been obtained on the alleged confession given by the appellant/A2 was a stage managed one and the witnesses spoken about recovery were all stock witnesses of the police. He would also submit that the confession said to have been given by the co-accused Mariappan was wrongly construed that the appellant/A2 also committed the offence along with the said accused Mariappan. He would also submit that since the case of the prosecution was resting purely upon the recovery of some properties the conviction reached by the lower court cannot be sustained merely on the basis of recovery.
9. He would further submit in his argument that the circumstantial evidence relied upon by the prosecution should contain a complete chain of evidence without any snap of a link and as regards the prosecution case is concerned, only recovery of the ornaments was sought to be relied upon for supporting the conviction and sentence passed against the appellant which has to be set aside.
10. He would further submit in his argument that in the event of the confirmation of the judgment, conviction and sentence may be considered as excessive there cannot be four life sentences for the commission of a single offence. Therefore, he would request the court to set aside the conviction and sentence passed by the lower court against the appellant and to allow the appeal.
11. Heard the learned Additional Public Prosecutor and had paid due consideration to the arguments advanced by him.
12. According to his submission the evidence is available to the extent that the appellant/A2 had been in possession of the ornaments of the deceased within few days from the date of occurrence and some of the ornaments of the deceased were handed over to the other witnesses and the recovery of those ornaments from those witnesses would prove that the appellant/A2 had taken part in committing the offence of dacoity and murder of the deceased. He would further submit that the occurrence had taken place inside the house of the deceased and the deceased was found dead due to injuries and the articles were looted and therefore, the dacoity and the murder in the house are mutually interconnected.
13. He would further submit that the presumption as described in illustration (a) of Section 114 of the Indian Evidence Act would go to show that the appellant who was found in possession of the stolen goods soon after the theft had to account for his possession. He would further submit that in the present case, jewels found in possession of the deceased woman was recovered through confession leading to recovery from the pawn broker and he was also examined to prove the possession. The presumption shall hold good and the appellant should be deemed to have committed the said offence.
14. The case of the prosecution would certainly go to prove that the deceased woman Jansi Rani wife of P.W.2 was found in her house with 33 stab injuries. Post Mortem Doctor - P.W.17 would speak to the effect that death of the deceased has been caused due to the injuries sustained by her. Post Mortem Certificate Ex.P.24 would also confirm the evidence of P.W.17. It is also the evidence of prosecution that the body of the deceased was found in the bathroom of the deceased's house and therefore there is no doubt in the mind of the court that the death of the deceased Jansi Rani was nothing but a homicidal violence. Apart from that the Observation Mahazar and other evidence produced by the prosecution would show that the house belonging to P.W.2 where the homicidal death of Jansi Rani taken place and the articles were lying in a pell-mell condition, the iron safe almirah was found broke open and the jewels in the jewel box were found missing. Complaint given by P.W.1 would reveal that the gold jewels, gold bangles and gold ring placed at the almirahs were found missing. In the said circumstances, the homicidal death of Jansi Rani was found to have been caused for the commission of theft from the house of the deceased Jansi Rani.
15. Similarly, we have to see whether there is any nexus in between the appellant/A2 with the commission of theft or robbery on one part and to the commission of murder of Jansi Rani on another part. If the appellant/A2 is found to have connection with the murder of deceased Jansi Rani and the commission of theft inside the said house, certainly it would amount to robbery as defined in Sec.390 I.P.C. If for any reason he has not been found guilty of murder and found guilty only for the offence of theft, it could be held that the appellant may not be attracted by the provisions of 302 I.P.C. It is the submission of the learned counsel for the appellant/A2 that it has been quite clear that the presumption to be drawn u/s. 114 (a) of Indian Evidence Act would not be helpful to the prosecution to presume that the appellant/A2 was guilty of both murder and robbery as charged against him merely because he was found in possession of the stolen articles. According to him the illustration under the said section will also draw the presumption only in respect of commission of theft and not in favour of the commission of murder. Therefore, we have to see the ingredients of Illustration (a) of Sec.114 of the Indian Evidence Act. The ingredients of Sec.114 Illustration (a)would run thus:
" (a) ...that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession."
As far as the prosecution case is concerned, we could see that the appellant/A2 was arrested on 22.02.1996 in the presence of witness P.W.7 and one Ponnurangam. The confession given by the appellant/A2 was recorded by the investigator and the appellant/A2 Lakshmanan had given confession leading to the recovery of the pledge receipt for pledging of jewels with P.W.7 and the said confession leading to recovery was produced by the prosecution in Ex.P.30. The evidence of P.W.7 coupled with evidence of P.W.24, we could see that the appellant/A2 had given confession leading to recovery of the pawn receipt produced as Ex.P.21. The said receipt has been proved by the pawn broker P.W.9. It has been categorically found that the jewel mentioned in Ex.P.21 was recovered from P.W.9. The date of pledge as per Ex.P.21 is 14.02.1996 and the alleged occurrence has taken place on 13.12.1995. The pledge has been effected in two months from the date of occurrence by the appellant/A2 with P.W.9. The said necklace seized from P.W.9 has been produced as M.O.29. The said seizure of necklace from P.W.9 was spoken to by P.W.7 and the seizure mahazar is produced as Ex.P.13. This would prove that the gold necklace in M.O.29 had been pledged by appellant/A2 with P.W.9 through Ex.P.21 and the said pawn receipt has been discovered through the confession leading to recovery spoken by the appellant/A2. The only recovery made from the appellant/A2 would be Ex.P.21 the pawn receipt the gold necklace M.O.29 was seized through P.W.9 pawn broker. No other material objects has been seized through the confession made by the appellant/A2. It has been brought to the notice of the court that the co-accused namely one Muthu had given a confession leading to recovery of one knife which is said to have been handed over by the appellant/A2. The said confession made by the co-accused Muthu will not in anyway bind the appellant/A2. Therefore, we could see that the only recovery made from the appellant/A2 was the golden necklace M.O.29 through the pawn receipt Ex.P.21 in pursuance of the confession given by him leading to recovery under Ex.P.30.
16. The point for consideration at this stage would be whether those recovery of the solitary M.O.29 would incriminate the appellant/A2 into the crime of commission of murder combined with robbery or dacoity.
17. Learned Additional Public Prosecutor would draw the attention of the court that the Hon'ble Apex court had decided that the illustration (A) of Indian Evidence Act would be squarely applicable as per the judgment rendered in (1995 ) 3 SCC 574, in between GULAB CHAND vs. STATE OF M.P. The relevant portion relied upon by the learned Additional Public Prosecutor would be thus:
"4. .......... The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen articles is or is not, calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. In our view, it has been rightly held by the High Court that the accused was not affluent enough to possess the said ornaments and from the nature of the evidence adduced in this case and from the recovery of the said articles from his possession and his dealing with the ornaments of the deceased immediately after the murder and robbery a reasonable inference of the commission of the said offence can be drawn against the appellant. Excepting an assertion that the ornaments belonged to the family of the accused which claim has been rightly discarded, no plausible explanation for lawful possession of the said ornaments immediately after the murder has been given by the accused. In the facts of this case, it appears to us that murder and robbery have been proved to have been integral parts of the same transaction and therefore the presumption arising under Illustration(a) of Section 114 of Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her ornaments."
He would lay emphasis on his argument that the Hon'ble Apex court had gone through various judgments and had come to the conclusion that the presumption u/s. 114 of the Indian Evidence Act and illustration (a) of the Indian Evidence Act would be attracted not only to the commission of the robbery of the ornaments but also towards the commission of murder of the deceased.
18. Per contra, the judgment of Hon'ble Apex court cited by the learned counsel for the appellant/A2 reported in (2001) 10 SCC 340 between LIMBAJI AND OTHERS vs. STATE OF MAHARASHTRA to the effect that the presumption u/s. 114 coupled with illustration (a) of Indian Evidence Act would not be applicable to draw a presumption of commission of murder, when the recovery is solitary regarding the ornament. Further case of of the appellant would be that the Hon'ble Supreme court had distinguished the judgment rendered in (1995 ) 3 SCC 574, in between GULAB CHAND vs. STATE OF M.P., with yet another judgment rendered by 3 judge bench made in AIR 1956 SC 54 in between SANWAT KHAN vs. STATE OF RAJASTHAN and had followed the larger bench decision that the presumption u/s. 114 illustration (a) of the Indian Evidence Act would apply only to the robbery alone and not for the commission of murder. The relevant passage would run as follows:
[25] Whether the approach of the Court and ratio of the decision in Gulab Chand case (1995) SCC (crl.) 552, is in consonance with the three-Judge Bench decision in Sanwat Khan case 1956 Cri L J 150 is, at least a debatable issue. When this decision was brought to the notice of Their Lordships who decided Gulab Chand case, it was merely observed that "the said decision is not applicable in the facts and circumstances of the present case." There was no further elaboration. In this state of law, the safer course would be to give due weight to the dicta laid down and the ultimate conclusion reached by the larger Bench in Sanwat Khan case. We cannot go against that decision insofar as it applies to the present case.
VI(c).[28] Whether the presumption could be further stretched to find the appellants guilty of the gravest offence of murder is what remains to be considered. It is in this arena, we find divergent views of this Court, as already noticed. In Sanwat Khan case, the three-Judge Bench of this Court did not consider it proper to extend the presumption beyond theft (of which the accused were charged) in the absence of any other incriminating circumstances excepting possession of the articles belonging to the deceased soon after the crime. However, we need not dilate further on this aspect as we are of the view that in the peculiar circumstances of the case, it would be unsafe to hold the accused guilty of murder, assuming that murder and robbery had taken place as part of the same transaction."
The careful scrutiny of the aforesaid judgment would go to show that the Hon'ble Apex court in its judgment made in 2001 10 SCC 340 had followed 3 judge bench decision in the judgment made in AIR 1956 SC 54 in between SANWAT KHAN vs. STATE OF RAJASTHAN and had laid the dictum that the mere recovery of the articles under one's possession would not render the person guilty of the offence of murder also. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced. Applying the aforesaid dictum in this case, we could see that no weapon was recovered from and out of the confession leading to recovery given by the appellant/A2 in Ex.P.30. It is true that there was no ocular evidence to prove the participation of the appellant/A2 in the commission of murder. However, there was no circumstantial evidence to show that the appellant/A2 had participated in the commission of crime of murder of Jansi Rani also, through recovery of any weapon used for such commission of murder. The case of the appellant/A2 is a different one from all other accused since there was no recovery of weapon from his confession. It is a settled law as we have already discussed that the presumption of recovery of stolen articles from the custody of a person cannot incriminate the said person into the crime of murder. The said commission of murder of Jansi Rani may or may not have taken place at the time of stealing the articles. In the aforesaid circumstances, we are afraid to draw presumption that the recovery of M.O.29 would also prove the appellant/A2 to the guilt of commission of murder, since no other facts and circumstances are available to show the culpability of the appellant/A2 with regard to the crime of murder. Therefore, it has become necessary for this court to hold that the prosecution has not shown that the appellant is also covered under the culpability of committing murder along with the commission of committing robbery. It is true that during the time of theft committed in the said house murder could have taken place which would invite the definition of robbery for the articles stolen from the said house. However, in the circumstances of the case and the solitary recovery of M.O.29 and Ex.P.21 from the confession leading to the recovery of the appellant/A2 in Ex.P.30, it is unsafe to hold that the appellant/A2 was also guilty of murder along with commission of robbery. Therefore, we are of the considered opinion that the conviction and sentence passed by the Trial court against appellant/A2 u/s. 302 and other related charges are not warranted and the facts and circumstances of the case would only point appellant/A2 to the guilty for the offence u/s. 404 and 451 and 392 r/w. 397 I.P.C only.
19. For the foregoing discussion, we are of the considered view that conviction and sentence imposed on the appellant u/s. 302, 395 and 449 I.P.C are set aside. However the appellant/A2 is convicted u/s.392 r/w. 397 I.P.C and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo six months simple imprisonment. The appellant/A2 Lakshmanan is also convicted u/s. 451 I.P.C and sentenced to undergo two years rigorous imprisonment and to pay fine of Rs.5,000/- in default to undergo six months simple imprisonment. The conviction and sentence imposed u/s. 404 I.P.C is confirmed. The sentence of imprisonment on the appellant/A2 is to run concurrently.
(M.C.,J.) (V.P.K.,J.)
08.12.2009
Index : Yes/No
Internet : Yes/No
kpr
M.CHOCKALINGAM,J.
and
V.PERIYA KARUPPIAH,J.
Kpr
To
1. The VI Additional Sessions Judge,
Chennai
2. Inspector of Police,
H-4, Korukkupet Police Station.
Chennai.
3. The Public Prosecutor,
High Court, Chennai.
Crl.A.No.392 of 2009
08.12.2009
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