Sheik Dawood v. State by Inspector of Police Kutthalam P.S. Nagapattinam District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:29.07.2009CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMANDTHE HON'BLE MR.JUSTICE C.S.KARNANCRL.A.NO.550 and 562 of 2008Sheik Dawood Appellant in Crl.A.No.550 of 2008/A31.Jahir Ussain2.Mohamed Assain Appellants in Crl.A.No.562 of 2008(A1 & A2)Vs.State by Inspector of PoliceKutthalam P.S. Nagapattinam District(Cr.No.319 of 2005) ...Respondent in both Crl.As.These criminal appeals have been preferred under Section374(2) Cr.P.C. against the conviction and sentence imposed inS.C.No.91 of 2006 dated 10.06.2008 on the file of PrincipalDistrict and Sessions Judge, Nagapattinam. For Appellant in Crl.A.550/08: Mr.V.Gopinath Senior Counsel for Mr.S.SureshFor Appellant in Crl.A.562/08: Mr.Saikrishnan for M/s Sai Bharath and IlanFor Respondent in Crl.As. : Mr.N.R.Elango, Additional Public Prosecutor- - - - JUDGMENT(The judgment of the court was delivered by M.CHOCKALINGAM, J.)This judgment shall govern the above two appeals viz.,Crl.A.No.550 of 2008 by A3 and Crl.A.No.562 of 2008 by A1 and A2. 2. Challenging the judgment of the Principal District andSessions Judge, Nagapattinam made in S.C.No.91 of 2006 whereby theappellants in both the appeals stood charged under Section 302 IPC https://hcservices.ecourts.gov.in/hcservices/ (2 counts) read with 34 IPC, tried and awarded life imprisonmentunder each count along with the fine of Rs.15,000/- in default toundergo two years Rigorous Imprisonment and also charged underSection 380 IPC and on trial, the appellants were found guilty andawarded three years Rigorous Imprisonment with the fine ofRs.5,000/- in default to undergo one year Rigorous Imprisonment andthe sentences are ordered to run concurrently3. The short facts necessary for the disposal of theseappeals can be stated as follows:a. The deceased Fathima Gani was living with the otherdeceased, her mother Sabura Beevi at Kuttalam within thejurisdiction of the respondent police station. The husband ofFathima Gani was in Saudi Arabia. The appellants were allassociates. Few days prior to 14.8.2005, all the accused came toKutthalam and enquired about the house of Fathima Gani from PW5.After knowing the same, they went to the house of Fathima Gani andinformed her that they were good friends of Sahabudeen , the son ofPW4. They were given coffee by Fathima Beevi. After having the same,they were talking for some time and left for Kumbakonam. Afterreaching Kumbakonam, they informed Sahabudeen about their visit tothe house of Fathima Gani. Sahabudeen told that they have lot ofjewels and money and even if anybody steals the money and jewels,they does not know about it. Next day, all the three accused haveplanned for stealing the jewels and money of Fathima Gani. b. Pursuant to the plan, on 14.8.2005 at about 12 noon,all the accused went in a motor bike and reached Kutthalam at about1.15 hours and they went to the house of Fathima Gani. Afterreceiving them, Sabura Beevi was talking with them and Fathima Ganiwent inside for preparation of Tea and at that time, the firstaccused closed the door, the second accused closed the mouth ofSabura Beevi with a saree and on seeing this, Fathima Gani wasfainted, then the first accused tied the hands of Fathima Gani witha saree and thereafter the first accused strangulated the saidFathima Beevi with the use of saree and due to which both of themdied instantaneously. Immediately, the first accused broke open theBureau and other two accused took all the jewels and sums of money in a carry bag. When they came out of the house, Pws.10 and 12 sawall the three accused coming from the house .c. On the same day at about 6 p.m. while crossing thehouse of Fathima Gani, P.W.8. saw that the house was in dark andimmediately she opened the door and got inside the house and foundthe dead bodies of Fathima Gani and Sabura Beevi. She then informedPW.11, the medical shop owner, who in turn, called Pws.6 and 7. Onhearing the same, PW.9,the Village Assistant went to the house ofFathima Gani and found the dead bodies and he intimated to PW1, the https://hcservices.ecourts.gov.in/hcservices/ Village Administrative officer. On information, the VillageAdministrative officer on the same day at about 7 p.m went to thehouse of the deceased and found the dead bodies, proceeded to therespondent police station where P.W.23 Head Constable was on dutyat about 9 p.m and gave a complaint to him which is marked asEx.P.1, on the strength of which, a case came to the registered inCrime No.319/2005 under Section 302 IPC. Express FIR Ex.P.15despatched to Court.d. P.W.25 took up the investigation, went to the place ofoccurrence and made an inspection in the presence of the witnesses.He prepared observation mahazar Ex.P.3 and drew Ex.P.16, roughsketch. Thereafter he recovered all the material objects available.On requisition, P.W.19 took the two finger prints available on thebureau which are marked as B1 and B2.Then, he conducted inquest onthe dead bodies of the deceased in the presence of the witnesses andpanchayatdars and prepared inquest reports Exs.P.18 and 19respectively. Then, the dead bodies were sent for the purpose ofpost-mortem. (e)Following the inquest made, P.W.17 the Doctor attachedto the Government Hospital, Mayiladuthurai, on receipt of therequisition, had conducted postmortem on the dead body of FathimaGani and issued Ex.P.5, the post-mortem certificate. He has alsosent the Thyroid & Hyoid Bones and Viscera for chemical analysis andthe reports are Ex.P.6 and 7 respectively and the final postmortemreport after getting the opinion of the doctor is Ex.P.8 and thedoctor has opined that the deceased Fathima Gani died due toAsphyxia by manual strangulation with the cloth.f. P.W.18 the Doctor attached to the Government Hospital,Mayiladuthurai, on receipt of the requisition, had conductedpostmortem on the dead body of Sabura Beevi and issued Ex.P.10, thepost-mortem certificate. He has also sent the Thyroid & Hyoid Bonesand Viscera for chemical analysis and the reports are Exs.P.11 and12 respectively, and the final postmortem report after getting theopinion of the doctor is Ex.P.13 and the doctor has opined that thedeceased Sabura Beevi died due to Asphyxia by smothering.g. Pending investigation, P.W.25 examined one witness SyedYusub on 16.8.2005 and on 21.10.2005 PW2 appeared before the policestation and gave a complaint which is marked as Ex.P.2 and on thebasis of which, the section has been altered under Sections 302 IPCand 380 IPC and the Express FIR EX.P.21 despatched to Court .h. Following the same, A1 and A3 were arrested on31.12.2005. They came forward to give confession statement https://hcservices.ecourts.gov.in/hcservices/ voluntarily and the same was recorded in the presence of witnesses.The admissible part of the said confession statement of A1 is markedas Ex.P.22. Pursuant to the confession statement of the firstaccused, he produced M.O.1, Chain, M.O.20, Motor bike and they wererecovered under the cover of Mahazar Ex.P.23. On 3.00 p.m. On thesame day, the third accused gave a confession statement voluntarilyand the same was recorded in the presence of witnesses. Theadmissible part of the said confession statement of A3 is marked asEx.P.23. Pursuant to which, he produced M.O.21, Gold Bangle underthe cover of Mahazar Ex.P.25. They were sent for judicial remand. Onthe confession made by A1 an A3, the second accused was arrested andthe confession statement of A2 was recorded in the presence ofwitnesses and the admissible part is marked as EX.P.26 i. Pursuant to the confession of A2, M.Os.2( series), apair of gold bangles was recovered by P.W.25 under the cover ofMahazar EX.P.27. He also identified P.W.21, one Marimuthu andrecovered M.Os.22 and 23 Gold Necklaces and they were recoveredunder the cover of Mahazar Ex.P.28. The first accused identifiedPW.20, Latha and recovered M.O.3 under the cover of Mahzar EX.P.29.The first accused also identified one Mohamed Arif and recoveredM.O.24 series, Rs.15,000/- under the cover of Mahazar EX.P.30.j. Pending investigation, P.W.26,Inspector of police, tookup further investigation and on completion of the investigation, hefiled the final report. 4. The case was committed to the Court of Sessions andnecessary charges were framed. In order to substantiate the chargeslevelled against the accused, the prosecution examined 26 witnessesand also relied on 30 exhibits and 24 M.Os. On completion of theevidence on the side of the prosecution, the accused were questionedunder Section 313 Cr.P.C. as to the incriminating circumstancesfound in the evidence of prosecution witnesses. The accused flatlydenied the same as false. No defence witness was examined. The trialcourt, after hearing the arguments advanced and scrutinizing thematerials available, took the view that the prosecution had provedthe case beyond reasonable doubt and awarded punishment as referredto above. Hence this appeal has arisen at the instance ofappellants herein. 5. Advancing arguments on behalf of the appellants,learned Senior Counsel would submit that in the instant case, theprosecution came out with a specific case that the occurrence hadtaken place on 14.8.2005 at about 1.15 hours, that when both thedeceased Sabura Beevi and Fathima Gani, her daughter were inside thehouse, A1 to A3 entered into the house in a friendly manner andthereafter the first accused closed the door and caused their deathand robbed jewels and cash. In order to substantiate the charges https://hcservices.ecourts.gov.in/hcservices/ levelled against the appellants, the prosecution had no directevidence to offer. It has relied upon the evidence of Pws.10 and 12to state that immediately after the occurrence was over, all thethree accused came out of the house of Fathima Gani, but, both thewitnesses have turned hostile and thus the prosecution rested itscase only on recovery pursuant to the confession alleged to havebeen made by A1 and A3. It is pertinent to point out that theoccurrence had taken place on 14.8.2005, but A1 and A3 were arrestedonly on 31.12.2005, only . In order to identify the jewels, PW2 wasexamined. According to PW2, he was able to identify only two itemsof properties and PW.2 has categorically admitted even at the timeof chief examination that he was taken to police station within aweek from the date of occurrence and he was able to identify thejewels. The Investigator would claim that the accused were arrestedon 31.12.2005, i.e. after a period of 4 months. Apart from that, PW2was able to identify few items of jewels. Further he deposed that hewas able to identify the jewels with the help of his brother and notindependently. All would go to show that the jewels could not havebeen identified independently by PW2. Added further, in the instantcase, insofar as recovery of the jewels are concerned, there is amaterial discrepancy in the evidence of investigating officer andthe prosecution case. As per the confession statement made by A3,M.O.2 was recovered from him. On the contrary, the investigator hasstated that MO.2 was recovered from A2 and not from A3 and thatwould cast doubt and thus in the instant case, though theprosecution rested its case only on recovery, it did not help theprosecution case. Under such circumstances, it can be stated thatthe prosecution had no direct or indirect evidence to offer. Underthese circumstances, the prosecution has miserably failed to provethe necessary circumstances pointing to the guilt of the accused.The trial Court has taken an erroneous view and hence it is a fitcase where the judgment of the trial Court has got to be set aside. 6.The court heard the learned Additional PublicProsecutor on the above contentions and paid its anxiousconsideration on the submissions made. 7. It is not in controversy that the dead bodies of oneFathima Gani and Sabura Beevi were found in the house where theywere residing within the jurisdiction of respondent police station.A case was originally registered by the respondent police stationunder Section 302 IPC. Following the inquest made by theInvestigating officer, on preparation of inquest report, the deadbodies were subjected to postmortem by Pws.17 and 18, doctorsrespectively who have given categorical opinion that the deceaseddied of homicidal violence. This fact was never disputed by theappellants before the trial Court and hence the trial court hasrecorded so and rightly too. https://hcservices.ecourts.gov.in/hcservices/

8. In order to substantiate the charges levelled againstthe appellants that they have committed the murder of two ladies androbbed the jewels and cash from their house, the prosecution had nodirect evidence to offer. It relied upon strong circumstances viz.,the evidence of Pws.10 and 12. According to the prosecution, on14.8.2005, immediately after the occurrence was over, all the threeaccused were coming out of the house which was witnessed by Pws.10and 12, but Pws.10 and 12 unfortunately turned hostile and hencethe prosecution had no evidence to offer, except in relying upon therecovery of jewels and cash, which according to the prosecution,from the house of deceased, immediately after the occurrence whichhad taken place on 14.8.2005. But the recovery from A1 and A3 wasmade pursuant to the confession only after a period of nearly aboutfour months i.e. on 31.12.2005. Now, at this juncture, it ispertinent to note that even though the investigator claimed that thejewels which belonged to the deceased were recovered pursuant to theconfession statement of A1 and A3, this fact has not been proved tothe satisfaction of law. In the instant case, it was the specificcase of the prosecution that A1 and A3 were arrested on 31.12.2005and on the confession of A1 and A3, A2 was arrested and theadmissible part of confession of A1 is marked as Ex.P.22 and M.O.1chain and M.O.20 the motor-bike were recovered from him under thecover of mahazar Ex.P.23. Equally, on the same day, A3 gaveconfession statement and the admissible part is marked as Ex.P.24and pursuant to which M.O.21, Gold Bangle under the cover of MahazarEX.P.25. At this juncture, it is pertinent to point out that theinvestigating officer would claim that pursuant to the confessionstatement, he recovered jewels and money which were recovered fromA1 to A3 and the investigator has stated that M.O.2 was recoveredfrom A2, but the prosecution case was that it was actually recoveredfrom A3, which would cast doubt. Equally two independent witnessesPws.21 and 20 were examined to whom the jewels were handed over,but as per the the prosecution, it was found to be the contraband.Added further, according to the prosecution, P.W.2 has identifiedthe jewels, but the occurrence had taken place on 14.8.2005 and A1to A3 were arrested on 31.8.2005 following the recovery of jewels.But contrarily, PW2 has categorically deposed that she hasidentified only few items of jewels and not all items and thoseitems were actually identified by the brother of PW2 and he wastaken to the police station within a week from the date ofoccurrence and the jewels were also shown to him. Thus, it would beindicative of the fact that when the prosecution would claim thatafter four months from the time of occurrence, A1 and A3 werearrested and jewels were recovered, but from the evidence of PW2,jewels were shown to him within a period of one week which would beindicative of the fact that he had no knowledge of any of the factwhich were put forward by the prosecution. 9. Added circumstance was that at the time of inquest, https://hcservices.ecourts.gov.in/hcservices/ number of jewels were found on the dead bodies of Fathima Gani andSubura Beevi. As rightly pointed out by the learned counsel for theappellants, it casts doubt when the persons were inside, they oughtto have robbed jewels and cash and it was not possible for them toleave all the jewels which were worn by the ladies at the time ofoccurrence. Though the prosecution rested its case on thecircumstantial evidence, it was unable to show or place necessarycircumstances which was pointing to the nexus of the accused withthe crime. Under such circumstances, the Court has no option thanto record the finding that the prosecution had not proved the guiltof the accused beyond reasonable doubt. The trial court has taken anerroneous view without adducing proper reasons. Therefore, thejudgment of the trial court has got to be set aside and accordinglyti is set aside.10. In the result, the criminal appeals are allowedsetting aside the judgment of conviction and sentence imposed on theappellants by the court below. The appellants/accused 1 to 3 areacquitted of the charges levelled against them. They are directed tobe released forthwith, unless their presence is required inconnection with any other case. The fine amount, if, paid, shall berefunded to them.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarVJYTo1.The Principal District and Sessions Judge, Nagapattinam District.2.-do- thro' The Judicial Magistrate No.1,Mayiladuthurai.3.-do- thro' The Chief Judicial Magistrate,Nagapattinam. https://hcservices.ecourts.gov.in/hcservices/

4.The Inspector of Police, Kutthalam Police Station Nagapattinam District.5.The Additional Public Prosecutor, High Court, Madras. 6.The Superintendent,Central Prison,Cuddalore.7.The District Collector,Nagapattinam.8.The Director General of Police,Mylapore, Chennai.9.The Public Prosecutor,High Court,Madras.+1cc to Mr.S.Suresh, Advocate Sr 32686BV(CO)km/18.8.CRL.A.NO.550 and 562 OF 2008