Bala @ Balakrishnan v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 26-11-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCRL.A.No.396 of 20091.Bala @ Balakrishnan2.Sarasu @ Saraswathi.. AppellantsvsState byInspector of PoliceThudialur PostCoimbatore District(Crime No.496/2007).. Respondent Criminal appeal preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Additional District andSessions Judge, FTC-3, Coimbatore, made in S.C.No.83/2008 dated23.6.2008.For Appellants: Mr.S.Samuel Raja PandianFor Respondent: Mr.Babu Muthu Meeran Additional Public ProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Additional SessionsDivision, Fast Track Court No.III, Coimbatore, made in S.C.No.83 of2008 whereby the appellants two in number, stood charged, tried andfound guilty as follows:ACCUSEDCHARGESFINDINGPUNISHMENTA-1 & A-2120(B) IPCNot guiltyAcquittedA-1 A-2449 IPC449 r/w 109 IPCGuiltyGuiltyLifeimprisonmentLifeimprisonmentA-1 & A-2302 r/w 34 IPCGuiltyLifeimprisonment https://hcservices.ecourts.gov.in/hcservices/ ACCUSEDCHARGESFINDINGPUNISHMENTA-1 & A-2396 r/w 34 IPCGuiltyLifeimprisonment2.Short facts necessary for the disposal of this appeal can bestated as follows:(a) P.W.1 and his wife the deceased Padmavathi were living atGanesh Nagar Extension within the jurisdiction of the respondentpolice. P.W.1 used to leave for his work at about 8.00 A.M. and toreturn by 2.00 P.M. P.Ws.3, 7 and 8 were all neighbours. Thedeceased was suffering from knee pain. Just 10 days prior to theoccurrence, A-2, the wife of A-1, was employed to assist the deceased.Her duty was to come to the house of P.W.1 every day at 8.00 A.M., dowork and leave by 2.00 P.M. From day one onwards, A-1 used to leavethe child in P.W.1's house and thereafter at about 2.00 P.M. he usedto come and take A-2 from the house of P.W.1. (b) On the date of occurrence namely 7.7.2007, P.W.1 came to thehouse, and after taking lunch, he left by 1.15 P.M. The same waswitnessed by P.Ws.3, 7 and 8. P.W.9 was playing cricket near thehouse of his grandmother. The house of the accused was situatednearby. At about 1.15 P.M., A-1 on request, got the cycle of P.W.9,marked as M.O.7, and went to the house of the deceased. When he wentinside the house, the same was witnessed by P.Ws.3, 7 and 8. After A-1 got inside, along with A-2 he has committed the murder and robbedall the jewels from the deceased which were worn by her. When theywere moving from the house, it was A-2 who was just going in front,and she was followed by A-1 with the knife. In the meanwhile, P.W.1phoned over to his house to enquire about the health of his wife atabout 1.45 P.M.; but he could not get the reply, since the phone wasnot attended. Immediately, he entertained a suspicion, and along withP.W.2, he rushed to the house. At that time, he along with P.Ws.3, and 8 witnessed A-1 and A-2 coming out of the house. P.W.1 afterentering into the house, found the body of his wife in a pool ofblood, and he noticed that the jewels were also robbed. (c) P.W.1 proceeded to the respondent police station and gaveEx.P1, the complaint, to P.W.16, the Sub Inspector of Police, at about4.15 P.M., on the strength of which a case came to be registered inCrime No.496 of 2007 under Sections 302 and 380 of IPC. The expressFIR, Ex.P19, was despatched to the Court. (d) P.W.17, the Inspector of Police of the Circle, on receipt ofthe copy of the FIR, took up investigation, proceeded to the spot,made an inspection and prepared an observation mahazar, Ex.P2, andalso a rough sketch, Ex.P20. Then he conducted inquest on the deadbody of Padmavathi in the presence of witnesses and panchayatdars andprepared an inquest report, Ex.P21. Thereafter, the dead body wassent to the Government Hospital along with a requisition for thepurpose of autopsy.(e) P.W.12, the Tutor in Forensic Medicine, Coimbatore MedicalCollege Hospital, on receipt of the said requisition, conductedautopsy on the dead body of Padmavathy and noticed 14 stab wounds.The Doctor has issued a postmortem certificate, Ex.P12, with heropinion that the deceased would appear to have died of shock andhaemorrhage due to multiple stab wounds sustained by her.(f) Pending the investigation, A-2 was arrested on the next day https://hcservices.ecourts.gov.in/hcservices/ i.e., 8.7.2007, at about 1.30 P.M. in the presence of P.W.6, theVillage Administrative Officer (VAO). She came forward to give confessional statement voluntarily. The same was recorded. Theadmissible part is marked as Ex.P6, following which she producedM.Os.1 and 2, gold chains, M.O.10, bloodstained saree, and M.O.11,bloodstained jacket. They were recovered under a cover of mahazar,and she was sent for judicial remand.(g) Pending further investigation, it came to the knowledge ofthe Investigator that A-1 surrendered before the Judicial Magistrate,Dindigul. On a requisition, police custody was ordered, and he wastaken to police custody on 30.7.2007. At the time of interrogation,he came forward to give a confessional statement which was recorded inthe presence of P.W.11, the VAO. The admissible part is marked asEx.P8 pursuant to which he produced M.O.3, bangles, M.O.5, gold ring,and M.O.6, earring, which were recovered under a cover of Ex.P9,mahazar. He further produced M.O.13, knife, M.O.14, bloodstainedpant, and M.O.15, bloodstained shirt. They were all recovered under cover of mahazar. Then he also took the police party to P.W.13 atTiruppur, wherefrom M.O.4 bangles, belonging to the deceased wererecovered under a cover of Ex.P10 mahazar. He was sent for judicialremand.(h) All the material objects recovered from the place ofoccurrence and from the dead body and also the weapon of crimerecovered from A-1 pursuant to the confessional statement, were sentfor analysis through a requisition made by the Investigator to theconcerned Court. Accordingly, they were subjected to analysis by theForensic Sciences Department which resulted in two reports namelyEx.P16, the chemical analyst's report, and Ex.P17, the serologist'sreport. On completion of investigation, the Investigating Officerfiled the final report.3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 17 witnesses and also relied on 22 exhibits and20 material objects. On completion of evidence on the side of theprosecution, the accused were questioned under Sec.313 of Cr.P.C., asto the incriminating circumstances found in the evidence of theprosecution witnesses which they flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand took the view that the prosecution has proved its case beyondreasonable doubt and hence found them guilty and awarded thepunishment as referred to above, but ordered an order of acquittal inrespect of the charge for criminal conspiracy. Under thecircumstances, this appeal has arisen before this Court.4.Advancing the arguments on behalf of the appellants, thelearned Counsel would submit that the prosecution had no directevidence to offer in respect of the crime; that what was all placed bythe prosecution before the trial Court was that P.Ws.3, 7 and 8 haveseen P.W.1 coming to and leaving the house at about 1.15 P.M. and theyfurther noticed that A-1 was coming with the cycle and after parkingthe cycle, he got inside the house, and after a short while of 15minutes, P.Ws.3, 7 and 8 found A-2 coming out of the house first andA-1 followed her along with the knife, and this was also witnessed byP.Ws.1 and 2; that the evidence of these witnesses if scrutinizedcarefully, would clearly indicate that there are lot of discrepancies https://hcservices.ecourts.gov.in/hcservices/ in the material particulars; that as far as A-2 was concerned, it wasclaimed by P.W.6, the VAO, that she was arrested in his presence onthe next day at about 1.15 P.M. and she came forward to give confessional statement, and the admissible part of the allegedconfessional statement is Ex.P6; that this part of the evidence cannotbut be false in the face of the evidence of P.W.1, according to whom,A-2 was found in the police station at about 8.00 A.M. on the next dayi.e., 8.7.2007; that if the evidence of P.W.1 is correct, then therecould not have been arrest of A-2 at all or confession as put forth bythe prosecution; and that if the arrest and confession are notacceptable by the Court, then the consequent recovery must also fail.5.Added further the learned Counsel that as far as A-2 wasconcerned, during the time, she was actually under employment; thatthe working hours was from 8.00 A.M. to 2.00 P.M.; that theoccurrence, according to the prosecution, has taken place between 1.15P.M. and 1.40 P.M.; that if to be so, she was actually there, but onpermission to do work, and thus it cannot be stated to be a criminaltrespass; that there is nothing to indicate that she has got knowledgethat her husband would come over there for a particular purpose ofcommitting the crime; and that there is also nothing to indicate thatshe shared the intention what her husband had. 6.Added further the learned Counsel that in the instant case, asfar as A-2 was concerned, the prosecution has miserably failed toplace any acceptable evidence; that the evidence placed are allnothing but imaginary; that when P.W.1 came to the house, he found thedead body; that it was only his surmise that A-2 along with herhusband could have done; that P.Ws.3, 7 and 8 were all neighbours;that they were all taken into service in order to speak theprosecution case; that under the circumstances, the prosecution hasmiserably failed to prove its case, and hence they are entitled foracquittal in the hands of this Court since the trial Court has takenan erroneous view. 7.This Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made. 8.It is not in controversy that in an incident that had takenplace between 1.30 P.M. and 1.40 P.M. on 7.7.2007, the wife of P.W.1by name Padmavathi, was done to death. Following the inquest made bythe Investigator, P.W.17, the dead body was subjected to postmortem byP.W.12, the Medical Person, who has given his opinion categoricallybefore the trail Court as a witness and also through the contents ofthe postmortem certificate that she died out of shock and haemorrhagedue to the multiple stab injuries sustained by her. A perusal of thepostmortem certificate would indicate that number of stab injuries arefound on the dead body. Thus, the prosecution has clearly establishedthe fact that she died out of homicidal violence, and the trial Courtwas perfectly correct in recording so. 9.In order to substantiate that A-1 and A-2 have committed thecrime of murdering Padmavathy and have robbed the jewels, theprosecution had no direct evidence to offer. Hence, the prosecutionrested its case on the circumstantial evidence. As far as the https://hcservices.ecourts.gov.in/hcservices/ conspiracy theory was concerned, the trial Court has adduced properreasons not to record so. As far as A-2 was concerned, it is highlydoubtful whether the charge under Sec.449 r/w 109 IPC could be broughthome for the simple reason that her working hours was between 8.00A.M. and 2.00 P.M. The occurrence has taken place between 1.30 P.M.and 2.00 P.M., and thus it would be quite clear that as a worker A-2was inside the house. In such circumstances, there cannot be anycriminal trespass for commission of any offence. Hence theprosecution has not proved the charge under Sec.449 IPC against A-2. 10.As far as the occurrence part is concerned, the categoricalevidence of P.W.1 was to the effect that at the time when he left forjob in the morning, it was A-2 who was with his wife in the house;that at about 1.15 P.M., he came for lunch and had his food; and thatwhen he started, his wife was in the company of A-2. The evidence ofP.W.9 would go to show that he was playing cricket nearby the house ofthe accused, and it was A-1 on request, got the cycle from him andproceeded telling that he was to take his wife from the place whereshe was working. At this juncture, it is pertinent to point out thatP.Ws.3, 7 and 8 have noticed A-1 after parking the cycle, gettinginto the house at about 1.30 P.M., and a short while thereafter, theyalso noticed A-2 coming out of the house in the front followed by A-1with the knife. In the meanwhile when P.W.1 put a phone call to hiswife, it was not attended, and hence he rushed to the house along withP.W.2. At that juncture, P.Ws.1 and 2 happened to see A-2 coming frominside the house followed by A-1 with the knife. From the evidence,it would be quite clear that at the time when the occurrence has takenplace, only three persons were inside the house namely the deceased,A-1 and A-2. 11.Now the contention put forth by the learned Counsel for theappellants that A-2 could not have any knowledge at all or could nothave shared the intention of A-1 has got to be rejected for morereasons than one. At the time when the occurrence has taken place, A-2 was inside the house ,and she was the only person present along withthe deceased. Had it been true that A-1 came inside the house with anintention of committing the offence of robbing the jewels by murderingthe deceased, without A-2's presence, knowledge and connivance, itcould not have taken place at all. Assuming that A-1 had entered intothe house with the knife and he was making the attacks on the deceasedby placing number of stabs, one would naturally expect A-2 to raisealarm or distressing cry; but, she has not done so. It remains to bestated that the house where the occurrence has taken place was also small one, and when A-2 was with the deceased, naturally without herknowledge and connivance such an occurrence could not have taken placeat all. The circumstance which stands against A-2 was that it was shewho came out first from the house, and she was accompanied by A-1 withthe knife. All would go to show that A-1 and A-2 had shared thecommon intention in committing the crime of murder and robbing thejewels. 12.The learned Counsel brought to the notice of the Court somediscrepancies in the evidence of the prosecution witnesses and wouldurge that A-2 could not have been arrested or confession could nothave been given by her as put forth by the Investigator. Pointing tothe evidence of P.W.1 who has deposed that he saw A-2 in the police https://hcservices.ecourts.gov.in/hcservices/ station at 8.00 A.M. on 8.7.2007, the learned Counsel would urge thatthe claim by the Investigator that she was arrested at about 1.30 P.M.on 8.7.2007 cannot be accepted. This Court is unable to agree withhim. It is true that there is a discrepancy in the evidence of P.W.1.But, at the same time, the evidence of the Investigator that she wasarrested at 1.30 P.M. stood fully corroborated by the evidence ofP.W.6, the Village Administrative Officer. It is also further to bepointed out that she was brought to the police station the very dayi.e., 8.7.2007 itself. Under the circumstances, merely because P.W.1has mentioned that he has found her at 8.00 A.M. in the policestation, the same cannot be accepted to disbelieve the evidence of theInvestigator which stood fully corroborated by the evidence of P.W.6.13.Apart from the above, from the evidence, it could be seen thatM.Os.1 and 2 gold chains, both belonging to the deceased, wererecovered from A-1. That apart, M.O.10, bloodstained saree, andM.O.11, bloodstained jacket, were also recovered under a cover ofmahazar. Equally when A-1 was taken to police custody, he cameforward to give a confessional statement, which was recorded in thepresence of the VAO, P.W.11, and the other jewels belonging to thedeceased namely M.Os.3 and 4 bangles, were also recovered. P.W.13, native of Thiruppur, has been examined. According to him, M.O.4 waspledged by A-1 with him, and during the period, it was also recoveredfrom him and produced before the Court. All these jewels, accordingto the prosecution, were robbed on 7.7.2007. How the jewels M.Os.1and 2 were found with A-2 and M.Os.3 and 4 with A-1, they had noexplanation to offer. In such circumstances, the presumption wouldalso follow against them. All would be indicative of the fact thatthey had the common intention which was shared, and within a shortspan of 15 minutes, they have committed the offence of murder androbbed the jewels from her. Under the circumstances, the trial Courtwas perfectly correct in finding both of them guilty as per thecharges under Sections 302 r/w 34 and 396 r/w 34 IPC and A-1 underSec.449 IPC and in awarding the punishment as referred to above.Hence, the judgment of the trial Court in that regard has got to besustained, and accordingly, it is sustained.14.As far as the charge under Sec.449 r/w 109 IPC against A-2 isconcerned, the conviction and sentence imposed by the trial Court onher are set aside, and she is acquitted of that charge. 15.In the result, this criminal appeal is, accordingly,dismissed.nsvSd/-Asst. Registrar//True Copy//Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To:1.The Prl Sessions Judge, Coimbatore.2.The Additional District andSessions Judge FTC-III, Coimbatore.3.The Judicial Magistrate No.I, Coimbatore.4.Do Through the Chief Judicial Magistrate, Coimbatore.5.The District Collector, Coimbatore.6.The Director General of Police, Mylapore, Chennai 47.The Superintendent, Central Prison, Coimbatore.8.The Inspector of Police Thudialur Post Coimbatore District9.The Public Prosecutor High Court, Madras.+ 1 cc to Mr.A.Samuvel Pandiyan, Advocate SR No.64074CRL.A.No.396 of 2009MBS(CO)SR/11.12.2009