Ramkumar @ Ambedkar @ Ajai @ Ajai Kumar v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE:- 28.10.2009CORAMTHE HONOURABLE MR. JUSTICE M. CHOCKALINGAM ANDTHE HONOURABLE MR. JUSTICE V. PERIYA KARUPPIAHCrl. A. Nos.439 of 2009 and 818 of 2008Ramkumar @ Ambedkar @ Ajai @ Ajai Kumar ..Appellant in Crl.A.No.439/2009Jaya @ Vennila ..Appellant inCrl.A.No.818/2008..Vs..State byInspector of Police,Thiruppur North Police Station,Tiruppur District. ..Respondent in both appeals.(Cr.No.356/06)Appeals filed against the order dated 30.9.2008 passed inS.C.No.115 of 2008 on the file of the Additional District andSessions Judge, Fast Track Court – 4, Coimbatore at Tiruppur.(*) For Appellant : Mr. S. Govindarajan in Crl.A.No.439/09(*) For Appellant : Mr. K.R. Ramesh Kumar in Crl.A.No.818/08 For Respondent : Mr. Babu Muthu Meeran Addl. Public ProsecutorCOMMON JUDGMENT(Judgment was delivered by M. CHOCKALINGAM, J.)Crl.A. No.439 of 2009 has been filed by the first accusedand Crl.A. No.818 of 2008 has been filed by the second accused,challenging the judgment dated 30.9.2008 passed by the learnedAdditional District and Sessions Judge, Fast Trck Court – 4, https://hcservices.ecourts.gov.in/hcservices/ Coimbatore at Tiruppur in S.C. No.115 of 2008, whereby the firstaccused stood charged, tried and found guilty for the offences underSections 392 and 302 of the Indian Penal Code and sentenced toundergo Rigorous Imprisonment for seven years and to pay a fine ofRs.1,000/- in default to undergo Rigorous Imprisonment for threemonths under Section 392 of the Indian Penal Code and to undergo lifeimprisonment and to pay a fine of Rs.2,000/- in default to undergorigorous imprisonment for six months and second accused stoodcharged, tried and found guilty for the offences under Sections 392read with 109 and 302 read with 109 of the Indian Penal Code andsentenced to undergo rigorous imprisonment for seven years and to paya fine of Rs.1,000/- in default to undergo rigorous imprisonment forthree months for the offence under Section 392 read with 109 of theIndian Penal Code and to undergo life imprisonment and to pay a fineof Rs.2,000/- in default to undergo rigorous imprisonment for sixmonths for the offence under Section 302 read with 109 of the IndianPenal Code and both the aforesaid sentences would run concurrently.2. The short facts necessary for the disposal of the casecan be stated thus:-(i) P.W.1 is the grandson and P.W.3 is the granddaughter ofthe deceased Pappammal, who was living at Palaiyakadu, Tiruppur inone of the seven houses situated in a row. P.W.4 was occupying oneof the houses as tenant. The accused 1 and 2, who were living ashusband and wife, were occupying one of the houses temporarily astenants. The second accused used to visit Pappammal's house and chatwith her.(ii) On the date of occurrence i.e. on 27.2.2006, themother and sister of P.W.1 went outside and returned home by 6 p.m.When P.W.4 was at home at 2 p.m., he found the second accused in thecompany of the deceased. After P.W.2 came back, P.W.3 told him thatthe house is closed and on suspicion, P.Ws.2 and 3 went inside andfound the dead body of Pappammal. All her jewels were robbed.Thereafter, intimation was given to P.W.5, a close relative, who cameto the place of occurrence and drafted the complaint Ex.P1, afterascertaining the facts. P.W.1, along with P.W.5, went to the policestation and gave a report to the Inspector of Police and on thestrength of the same, a case came to be registered in Crime No.356 of2006 for the offences under Sections 392 and 302 I.P.C. Ex.P11 FirstInformation Report was sent to the Court.(iii) P.W.14 Inspector of Police took up investigation andproceeded to the place of occurrence and prepared Observation MahazarEx.P2 and Rough sketch Ex.P12. He conducted inquest on the dead bodyand prepared inquest report Ex.P13. Thereafter, the dead body wassubjected to post-mortem and P.W.9 Doctor Somasundaram has conductedpost-mortem on the dead body and gave post-mortem Certificate Ex.P.9,wherein he opined that the deceased would appear to have died of https://hcservices.ecourts.gov.in/hcservices/ asphyxia due to smothering. All the witnesses were examined andtheir statements were also recorded.(iv) Pending investigation, P.W.14 arrested the firstaccused on 6.3.2006 at about 7 p.m. and he came forward to giveconfession statement and the same was recorded in the presence ofP.W.8 and other witnesses and the admissible portion of the saidstatement is marked as Ex.P5. Thereafter, the first accused took upthe investigators to the financier at Sirgazhi, where he found M.O.1gold chain, M.O.2 gold ring and M.O.3 gold stud and the same wererecovered under the cover of mahazar. He also identified the secondaccused, from whom M.O.4 gold bangles were recovered. Thereafter,the accused were sent for judicial remand and all the materials wereplaced before the Court. On completion of investigation, finalreport is filed.3. The case was committed to the Court of Sessions.Necessary charges were framed against the accused. In order tosubstantiate its case, the prosecution examined 15 witnesses asP.Ws.1 to 15 and relied on the documents viz. Exs.P1 to P13 andalso relied on Material Objects marked as M.Os.1 to 6. On completionof examination of witnesses on the side of the prosecution, when theaccused were questioned under Section 313 of the Criminal ProcedureCode, they denied them as false. Neither witness was examined nordocument was marked on the side of the accused.4. The Trial Court, after hearing the arguments advanced byeither side and scrutinised the materials available on record, foundthat the prosecution has proved its case beyond reasonable doubt andawarded punishment referred to above. Hence this appeals are filedat the instance of the appellants.5. Advancing arguments on behalf of the first accused,learned counsel inter-alia would submit that the case of theprosecution was that on the date of occurrence i.e. on 27.2.2006 at 2p.m., when Pappammal was alone, accused 1 and 2 in order to rob thejewels, murdered her and stolen the jewels. The prosecution had nodirect evidence. It rests on circumstantial evidence. Neither lastseen theory nor recovery of jewels is proved, pointing out to theguilt of either of the accused.6. Learned counsel further stated that according to P.W.4.,who was the tenant in one of the houses, on the date of occurrence atabout 2 p.m. he found Pappammal in the company of the second accusedalone. Nowhere he has whispered about the first accused. In theinstant case, the first accused has nothing to do with the offence.Even the last seen theory cannot be applied as against the firstaccused. In the instant case, the prosecution much relied on thetheory of recovery of jewels from accused 1 and 2. It was claimedthat the first accused was arrested on 6.3.2006 at about 5 p.m. and https://hcservices.ecourts.gov.in/hcservices/ he took the police to Sirgazhi, where he identified the financier,from whom jewels M.Os.1 to 3 were alleged to have been recovered.7. In the instant case, it is pertinent to point out thatthe said financier was not examined. P.W.8 did not belong to theplace of Sirgazhi, where from the jewels are alleged to have beenrecovered and actually he belongs to the place, where occurrence tookplace. Even according to the investigation, he was taken all alongto Sirgazhi, the non examination of financier from whom jewels werealleged to have been recovered is fatal to the prosecution. Thoughit is claimed that M.Os.1 to 3 were recovered and produced under Form95 before the Court on 7.3.2006, the same was actually returned forproduction of jewels and the same was produced on 9.1.2007 only,which is quite indicative of the fact that the jewels, which arealleged to have been recovered on 6.3.2009, were actually notrecovered. The records were first prepared, but the jewels wereproduced only on 9.1.2007 i.e. after a period of ten months.8. Learned counsel added further that P.W.8 was unable totell the place, from where the jewels were recovered. It is admittedin the cross-examination that he was not present in the place ofoccurrence at the time of recovery. Hence, the prosecution has notproved its case on the plea of the recovery, which was relied on bythe prosecution very much. Hence the prosecution could not prove thecase through circumstantial evidence.9. Adopting the arguments of the learned counsel appearingfor the first accused, learned counsel appearing for the secondaccused would submit that in the instant case, according to theprosecution, at the time of M.O.4 bangles were recovered from thesecond accused, she actually kept them in her saree, which isimproper and unacceptable. It is quite unnatural that the jewelswere actually kept by her in her saree after a week i.e. on6.3.2006, that itself would indicate the fact that the prosecutionhas miserably failed to prove its case and hence the judgment of theTrial Court has got to be set aside and the accused have got to beacquitted. 10. This Court heard the learned Additional PublicProsecutor on the above contentions. 11. This Court paid its anxious considerations on the abovecontentions. It is not in controversy that one Pappammal,grandmother of P.Ws.1 and 3, died due to homicidal violence on thedate of occurrence i.e. on 27.2.2006 at 2 p.m. and following thecomplaint given by P.W.1, the case was registered and afterregistration of the case, the Investigating Officer conductedinquest. It is also not in dispute that following the inquest madeby P.W.14, the body was sent to the Government Hospital for post-mortem and the Doctor, who has conducted the post-mortem, has given https://hcservices.ecourts.gov.in/hcservices/ his categorical opinion that the deceased would appear to have diedof asphyxia due to smothering. Apart from this, the cause of deathas put forth by the prosecution was never questioned by the accusedand hence, there is no impediment for this Court to accept the caseas put forth by the prosecution about the cause of death at the timeand place of occurrence.12. In order to establish the charge levelled against theaccused/appellants that on the date of occurrence the first accusedcaused the death of the deceased by causing smothering and the secondaccused abetted the offence, which was the murder for gain that theyrobbed the jewels of Pappammal, the prosecution had no directevidence, but the prosecution solely rests on circumstantialevidence. The two circumstances relied on by the prosecution arelast seen theory and recovery of jewels from both accused 1 and 2.13. At this juncture, learned counsel appearing for theappellants cautioned the Court that in a case like this, when theprosecution rests on circumstantial evidence, the prosecution mustnot only place sufficient circumstances, but also show that all thecircumstances must constitute a clear chain pointing to thehypothesis that none else except the accused has committed theoffence. Even after applying the said test and the ruling of theApex Court, this Court is satisfied that the prosecution has provedits case beyond reasonable doubt.14. The occurrence took place on 27.2.2006 at 2 p.m.P.W.4, who is admittedly a tenant in one of the row of the houses,has categorical stated that he found the second accused in thecompany of the deceased Pappammal and thus, it is to be pointed outthat no reason whatsoever was pointed out by the accused as to whyP.W.4 must come forward to give a false evidence against the secondaccused. Apart from this, after the occurrence, both the accused arefound missing from the house and thereafter, they did not return. Itremains to be stated that in the earliest document Ex.P1, throughwhich the incident was brought to the notice of the police, it isclearly mentioned that Pappammal was actually found talking withsecond accused and both of them, accused 1 and 2 were found missingand hence the complainant has got suspicion over both of them andthus, when P.W.1 had entertained suspicion about accused 1 and 2,their names were mentioned in Ex.P1 complaint.15. Thereafter, it remains to be proved is the conduct ofthe appellants. They did not return to the place of occurrence,where they are residing. It also indicate the fact that after theoccurrence they ran away from the place of occurrence. It must bepointed out that the first accused was arrested on 6.3.2006 and hisconfession was recorded by the Investigating Officer in the presenceof P.W.8 and thereafter, it was the first accused, who took theinvestigator along with P.W.8 to the Financier at Sirgazhi, from whom https://hcservices.ecourts.gov.in/hcservices/ jewels M.Os. 1 to 3 belong to deceased Pappammal and worn by her wererecovered. 16. With regard to the factum of arrest, confessionstatement, recovery of jewels belonging to Pappammal, P.W.8 has givencategorical evidence. It is true that there were certaindiscrepancies in the evidence of P.W.8. But, the Court is of theconsidered opinion that when the evidence is recorded after lapse ofsome time, it is quite natural that there is a possibility of failureof human memory and there is some discrepancy in the evidence. Oncecogent and clear evidence has been given by P.W.8, the same can beaccepted.17. It is to be added further that P.W.8 also deposed thatthe second accused was arrested on the same day, who was identifiedby the first accused and the second accused came forward to giveconfession statement voluntarily and thereafter, she produced M.O.4bangles. At this juncture, a legal presumption which has got to betaken under the circumstances is under Section 27(2) of the IndianEvidence Act, 1872 that the jewels were recovered in the presence ofP.W.8 on 6.3.2006 within a week. In a given case like this, when thejewels belonging to the deceased were in the custody of first andsecond accused within a short span of time, the accused must provethat as to how the jewels happened to be in their custody. Thepresumption of Section 114(a) of the Indian Evidence At, 1872 couldbe drawn either he or they were the receiver of stolen property. 18. With regard to last seen theory, the second accused wasfound in the company of the deceased at about 2 p.m. just before theoccurrence and thereafter the first and the second accused were foundmissing and did not return to the place of occurrence and the jewelsworn by the deceased were recovered from them. All would indicatethe fact that they are the persons, who have committed the crime ofmurder and stolen the jewels. The submission of the learned counselappearing for the first accused that the first accused was notactually found in the company of Pappammal cannot be a reason to showany doubt on the prosecution case. Accused 1 and 2 were livingtogether in a row of houses and after the occurrence, they weremissing and the jewels were recovered from them and the accused hadno explanation to offer.19. Apart from this, the comment made by the learnedcounsel appearing for the appellants that Form 95 was lodged beforethe Court on 7.3.2006 and the same was returned for production ofjewels and the same was produced before the Court on 9.1.2007 cannotbe a reason to suspect the prosecution case. Certain jewels wereactually stolen. Those jewels were in the custody of the accused.Some of them were recovered and witnesses were examined and they haveidentified the jewels, which would be suffice to prove the https://hcservices.ecourts.gov.in/hcservices/ prosecution case. Though they may look as a doubt, those doubts arenot reasonable. 20. Hence the prosecution has placed necessarycircumstances and also proved its case pointing out to the guilt ofthe accused. The Trial Court is perfectly correct in convicting thefirst accused for the offences under Sections 302 and 392 of theIndian Penal Code and the second accused for the offences underSections 302 read with 109 and 392 read with 109 of the Indian PenalCode and sentenced them referred to above. The judgment of the TrialCourt does not require either factually or legally any interference.Accordingly, both the appeals are dismissed.Sd/Asst.RegistrarDated : 10.11.2009(*) Corrected Ordersd/-Asst.RegistrarDated : 12.01.2010/true copy/Sub Asst.Registrarssa.To1. The Additional District and Sessions Judge/ Fast Track Court-IV, Coimbatore at Thiruppur.2. -do- Through The Principal District & Sessions Judge, Coimbatore.3. The District Collector, Coimbatore.4. The Director General of Police, Madras – 4.5. The Superintendent, Central Prison, Coimbatore.6. The Inspector of Police, Tiruppur North Police Station, Tiruppur. https://hcservices.ecourts.gov.in/hcservices/

7. The Public Prosecutor, High Court, Madras.+ 1 c.c. to Mr. S. Govindarajan, Advocate. S.R.No.57232. Crl.A.Nos.439 of 2009 and 818 of 2008BV (CO)GSK 10.11.2009.DM (CO)GSK 12.01.2010.