Madras High Court
Siva Alias Sivakumar, Sheit @ Sathik ... vs State By Inspector Of Police on 26 June, 2003
JUDGMENT A.S. Venkatachalamoorthy, J.
1. One Sivan @ Sivalingam, a watchman in a Jain Temple, was done to death in Coonoor and in connection with that, the above appellants were prosecuted for various charges. The learned Sessions Judge, after due trial in Sessions Case No. 32 of 1998, found all the appellants guilty under Sections 457 and 397 IPC. and sentenced them to undergo rigorous imprisonment of seven years for each offence. That apart, A-1 has been found guilty under Section 302 read with 109 IPC.; A-2 guilty under Section 302 IPC. and A-3 guilty under Section 302 read with 34 IPC., and they were sentenced to undergo life imprisonment.
Questioning the correctness of the above conviction and sentences, the said accused have filed appeals independently which are numbered as C.A.612 of 2000; 1019 of 2000 and 889 of 2002 respectively.
2. The case of the prosecution can be set out as under:
PW-1 Mangilal resides in V.P.Street, Coonoor and belongs to Jain community. The community has temples known as Manaswari Swamy, Jain Mandir, Jain Dadavadi and Jain Guru Mandir, but all located within one compound. PW-1's father is the Secretary of the temple. The said temple has telephone facility. Apart from these temples, there is also an outhouse, which is again within the temple premises. In the outhouse, the deceased Sivalingam is staying with his wife PW-2 and his son by name Premchand and they also belong to Jain community. During nights, Premchand used to sleep in one room while PW-2 in the other one where there is a telephone connection. The deceased was employed in the said temple as a watchman. As usual, PW-1 went to the temple in the night and left at about 8.00 p.m. on the day previous to the occurrence and at that time, watchman met him.
At about 3.30 a.m., on the fateful day, PW-3 Manibai heard somebody crying. As she was afraid, she did not open the door and closing the windows, she again went back to sleep. After about half an hour or so, Premchand knocked the door in which PW-3 was sleeping. When PW-3 opened the door, Premchand told her that two persons are standing near Dadawadi temple and asked her to come so that they can go and see. But however, PW-3 refused to accept the suggestion and both of them remained in the room of PW-3. Thereafter, Premchand rang up to the father of PW-1 by name Shukla. It was PW-1, who received the phone call from the other side and to him, Premchand informed that two persons are standing near Dadawadi temple and asked him to inform the Police and come there immediately. At about 5.00 a.m., PW-1 and his brother Magelal came there and at that time, Premchand was in the bathroom. Thereafter, PW-1 and his brother went to Dadawadi temple and they saw the watchman Sivan @ Sivalingam lying dead. Thereafter they rang up to the police and police arrived at 6.00 a.m. in the morning.
PW-18 is the Head Constable who was in the Coonoor police station at the relevant time. He received the complaint from PW-1 at about 5.15 a.m. about the incident and on the basis of that, he registered a crime under Section 457 and 302 I.P.C., etc. and prepared Ex.P-26 express F.I.R. The said report was sent along with the complaint to the Court of Judicial Magistrate and copies to his superiors.
PW-23 is the Inspector of Police attached to the Upper Coonoor police station. As the Inspector of Police, Coonoor Town Police Station was on leave, he was in additional charge. On that day at about 6.00 a.m. he received copy of the F.I.R. Immediately, he proceeded to the scene of occurrence and reached there at about 6.30 a.m. and after inspecting the scene of occurrence, he prepared Ex.P-43 an observation mahazar. He held inquest over the body of the deceased between 8.30 and 10.30 A.M. Ex.P-44 is the inquest report. During inquest, he examined Mangilal, Premchand Paniya, Gnanvel, Devanai and others and recorded their statements. Then he took steps to send the body to the Government Hospital with a requisition to conduct post mortem. Thereafter, he contacted the dog squad at Coimbatore for assistance. Services of Finger Print Expert was also requested by the Investigating Officer. On the basis of the requisition, PW-16 attached to the said Department came and visited the scene of occurrence at about 10.30 A.M. When he inspected carefully the entire premises, he found three finger print impressions in the front door of the temple and he marked them as R-1, R-2 and R-3. At about 1 P.M., the Investigating Officer found a Godrej Navtal Lock on the floor near the Munishwar Temple and the same was seized under mahazar. At about 1.15 P.M., from inside Munishwar Temple he found a damaged Navtal Lock partly opened so also a bamboo stick. At about 1.45 P.M., he seized bloodstained muffler so also bloodstained carpet piece and ordinary carpet. He also seized bloodstained woolen piece and ordinary woolen piece under mahazar. PW.17, the Scientific Inspector in the Forensic Sciences Department, on requisition, inspected the scene of occurrence on 30.01.1998 at about 10.30 A.M. At about 2.45 P.M., he noticed a pair of hawai chappals and the same were collected and handed over to the Investigating Officer.
The Inspector of Police thereafter sent a requisition Ex.P.19 to the Doctor at the Government Hospital to conduct autopsy over the body of the deceased.
PW-13 is the Doctor, who, pursuant to the requisition, conducted autopsy on 30.1.1998 between 11.30 A.M. and 1 P.M. Ex.P-20 is the post mortem certificate issued by the Doctor. The Doctor noted as many four external injuries. On internal examination, the Doctor noted curvilinear fracture. For proper appreciation, We here-under extract the relevant portion from the post mortem certificate.
" External Injuries:-
1. Diffused swelling present over the front of the neck. Echymosis present underneath.
2. Abrasion of 3 cm. x 2 cm. present over the centre of the front of the neck.
3. Incised wound of 6 cm. x 3 cm. x bone deep present over the centre of the parietal area.
4. Diffused swelling present over the temporal region left side and left side of the fore head and right side of the fore head. Bleeding from the nose present. Bleeding from the mouth present. Jaws clenched. Tongue inside the mouth. Teeth : 2 in the upper jaw and 4 in the lower jaw.
Internal Exam:-
Thorax : No fracture of ribs. Heart : Empty. Blood dark red in colour. Coronary vessels Atheramatous. Lungs: Normal. Larynx, glottis and trachea edematous contain clotted blood inside. Hyoid bone not broken.
Abdomen, stomach : Empty. c/s. normal. Liver : Pale in colour. Spleen : Pale (.. torn ..)Kidneys : Normal ; Intestines distended with gas. Appendix - Normal. Large intestine - Distended with gas. Bladder - Empty. Pelvis - No fracture of bones. Head - Curvilinear fracture extending from the centre of the parietal bone towards the left parietal bone to the temporal bone and ending in the left frontal bone. There is a tear in the durameter of the size of 10 cm. with subdural haematoma of the size of 8 cm. x 4 cm. There is a tear in the left hemisphere of the brain of the size of 6 cm. Clotted blood present in the centre of the parietal lobe. Clotted blood present over the left temporal lobe & left frontal lobe. Whole brain congested. Spinal column, Atlas & Axis normal. No fracture of bones. Blood and hair preserved. P.M. concluded at 1 P.M. on 30.1.'98. "
The Doctor had opined in the said Certificate that the deceased would appear to have died of shock and haemorrhage due to injury to vital organ like brain and that death would have occurred about 8 to 10 hours prior to autopsy.
PW-22, the Inspector of Police, Coonoor Town Police Station, resumed duty on 31.1.1998 and took over the investigation. On 3.2.1998, on the basis of the information received, he proceeded to Sathyamurthy Nagar Bus-stand near Mettupalayam at 2 P.M. and arrested A-2 in the presence of witnesses. On arrest, the A-2 gave a voluntary confession statement. The accused said that if he is taken, he would show the place where he had thrown MO-1 cash box. On the next day, that was on 4.2.1998, at about 10 A.M., A-2 took the police party and witnesses to a place near Las Falls Bridge in Coonoor-Mettupalayam Road and produced MO-1 iron hundi which he had secretly kept there.
At about 4 P.M. on 3.2.1998, A-1 was arrested at Mettupalayam Bus Stand. He gave a voluntary confession statement to the effect that if taken, he would show the place where they had committed theft and also the places where they had committed thefts earlier so also the place where they had hidden the stolen articles. A-1 took the police party and witnesses to a garden of one Ramasami Pillai and from a bush, took out MO-2 viz., four legs of a wooden stool on which MO-1 box was kept and also a crow bar (MO-4) with a length of 3' 2". The material objects were recovered under Ex.P-11 mahazar, duly attested by witnesses.
A-3 was also arrested near Mettupalayam Bus Stand at about 3.45 P.M. on 3.2.1998. On arrest, he gave a voluntary confession statement. He offered to take them to one Senthil Kumar to whom he had handed over the 'thilak' which he had taken from the Jain temple. He further offered to show the places where he had committed thefts and the places where he had hidden the stolen articles. On the next day, A-3 took the police party and witnesses to a garden in Barliyar and produced the clothes (MO-27 series), belonging to all the three accused, which he had hidden near a rock. Coins to the extent of Rs.350/- (MO-6), kept in a polythene bag (MO-28) and hidden on the other side of the rock, was also produced by A-2 and that was also seized under a mahazar Ex.P-14.
The Investigating Officer, during his investigation, could not trace out anyone, who actually saw the occurrence and he could only gather other evidence which were in the nature of circumstantial evidence. We here-under proceed to point out the same one by one:-
(i) PW-5 is a resident of Jubilee Garden. He is operating auto-rickshaw bearing Registration No. TN-43-5186 and he used to ply during night time. At about 4 A.M. on 30.1.1998, the auto-rickshaw was hired to go to Clintane Estate. After dropping the passengers there, he was coming back to Coonoor and at about 5 A.M. in the morning, at a place called Katteri, three persons stopped the auto-rickshaw and told that they would like to go to Barliyar. PW-5 demanded a rent of Rs.100/- and agreeing to pay the same, they boarded the auto-rickshaw. PW-5 could see that one of them was carrying a cash box like MO-1. When he was proceeding towards Barliyar, at a place called Las Falls, they asked him to stop the auto-rickshaw. All of them got down from the auto rickshaw and paid him Rs.50/- as hire charges. They also carried with them the cash box. PW-5 was examined by the police, to whom, he narrated the above facts. PW-5 identified the accused in the identification parade conducted on 16.2.1998 as well as in the court.
(ii) PW-8 is the Driver and PW-9 is the Conductor in a bus operated by the Government Transport Corporation. On 30.1.1998 at about 5.15 A.M., PW-8 was driving the Bus bearing Registration No. TN.33.0.764 from Ooty to Mettupalayam. At about 6 A.M. when the bus reached the place called Las Falls, it was stopped by a person. The vehicle was stopped and three persons boarded the bus. They purchased tickets to go to Kurumbadi. Even before reaching the place Kurumbadi, police officials stopped the vehicle and checked. To the police, PW-8 informed about three persons getting into the bus at Las Falls. The Police Officer got into the bus by the front entrance and seeing this, all the three persons got down by the rear entrance and ran away. The originals of the tickets issued to them are Ex.P-15 series.
(iii) PW-21 was serving as Inspector of Police, Welington at the relevant time. As per the directions of the Deputy Superintendent of Police, he was checking the vehicles at Kurumbadi. A Government Transport Corporation Bus, bearing Registration No. TN-33.0.674, was proceeding towards Mettupalayam. He stopped the said bus at about 6.20 A.M. He saw three persons getting down by the rear entrance and running away. He could recognise A-2 since he was involved in another case in Cr. No. 109/1997. From the Conductor and Bus Driver, he came to know that at Las Falls, the said three persons got into the bus.
(iv) PW-6 is a resident of Pudukadu in Barliyar and she is running a petty shop. On 30.1.1998, at about 6.30 A.M., while she was sweeping her front-yard, A-2 came there running and asked for water. When she gave, A-2 washed his face and also drank. She could notice some injuries on his face and he was in a perturbed mood. After a few minutes, A-1 and A-3 came there and she noticed them also to be perturbed. For them also, she gave water. When she questioned them as to why they are running, they did not reply. She could notice bloodstains on the clothes of the accused. PW-6 knew A-2 already because he resides in Barliyar. She had also seen A-1 and A-3 on earlier occasions.
(v) PW-16 is the Finger Print Expert. On the requisition made by the Inspector of Police, on 30.1.1998, he inspected the scene of occurrence at 10.30 A.M. and examined whether any finger prints are available. On the front door of the Temple, he saw three finger prints. Those finger prints were taken and marked as R-1, R-2 and R-3. So far as R-1 is concerned, the same was not clear and hence, he rejected the same. R-2 was found to be the finger print of the deceased Siva. As far as R-3 is concerned, the same was compared with the finger prints of the noted criminals available in the police station and it was found to be tallied with that of A-1 Siva @ Sivakumar.
(vi) From the scene of occurrence, a pair of Hawai Chappals was seized in the presence of witnesses Kannian and Chandran on 30.1.1998 at 2.45 P.M. PW-17, the Forensic Sciences Expert, pursuant to the requisition from the Judicial Magistrate, Coonoor, proceeded to Coimbatore Central Prison on 16.3.1998 and took the foot prints of all the three accused in the presence of Deputy Superintendent of the Jail. For each accused, three impressions were taken, thus in total 18 impressions were taken. He also noted down, as against each impression, the ranking of the accused. Ex.P-39 is the report from the Forensic Sciences Department, which is to the effect that the foot impressions on MO-25 chappals seized from the scene were found to be tallying with the foot impressions of A-2.
(vii) MO-4 is the Crow Bar seized pursuant to the confession made by A-1. When the same was seized under Ex.P-11, it was found that certain hairs were sticking to it. The said material objects were sent for chemical analysis. According to Ex.P-30, the report of the Forensic Sciences Department, the hair pieces on the Crow Bar MO-4 were found to be human hair and when compared with the hair of the deceased they were found to be similar.
(viii) A-3 was arrested on 3.2.1998 at 3.45 P.M. near Mettupalayam Bus-stand. On arrest, he gave a voluntary confession statement. On the next day, that was on 4.2.1998, he took the police party and witnesses to a place near Barliyar and produced the bloodstained dress materials (Ex.P-27 series) belonging to A-1 to A-3, which he had hidden underneath a rock. As per the Serologist's Report Ex.P-32, the said clothes were found to contain human blood of 'A' group as that of the deceased.
The Inspector of Police, after gathering the above circumstances and examining the witnesses, filed his final report before the Court.
3. When questioned under Section 313 Cr.P.C., the accused denied having any complicity in the commission of the crime and also pleaded innocence.
4. The question is, whether the prosecution has proved its case beyond all reasonable doubts.
5. PW-13 Dr. Jayalakshmi was the one, who conducted autopsy on 30.1.1998. The Doctor noted as many as four external injuries. On internal examination, she also noticed a curvilinear fracture and presence of clots over the left temporal lobe and left frontal lobe. The whole brain was also found congested. The Doctor had opined in the post mortem certificate that the deceased appear to have died of shock and haemorrhage due to injury to vital organ like brain and that death would have occurred about 8 to 10 hours prior to autopsy. As PW-13, the Doctor has reiterated the same before Court. She has also deposed that the injuries to the head could have been caused by weapon like MO-4. Though, in the cross examination, the Doctor has generally stated that the injuries to the head could have been caused by a person falling on a rough surface, she had made it clear in the re-examination that injuries to the brain and the tear in the left hemisphere of the brain of the size of 6 cm. cannot be caused by such a fall. Thus, the medical evidence would amply prove that the deceased died of only homicidal violence.
6. There are no eye witnesses to the occurrence and this is a case of circumstantial evidence. The settled legal position is that it is for the prosecution to establish the circumstances relied on and that the Court has to see whether those proved circumstances would lead to the one and only conclusion that it was the accused, who should have committed the murder of the deceased.
7. Let us proceed to consider the various circumstances relied on by the prosecution and find out as to whether they had been proved and if so, whether the proved circumstances point only towards the guilt of the accused and nothing else.
8. Circumstance No. 1:- The first person to see the accused is PW-5, an auto-rickshaw driver, who saw the accused at about 5 A.M. on 30.1.1998. On that day, this witness was returning from Clintane Estate and when he approached the place known as Katteri, the accused stopped the vehicle and told him that they would like to go to Barliyar and they also agreed to pay Rs.100/- as rent, as demanded by PW-5. However, they got down on the way at a place called Las Falls and paid him a sum of Rs.50/-. PW-5 has categorically stated in his evidence that he noticed them carrying a cash box like MO-1. Later on, in the identification parade held on 16.2.1998, this witness has clearly identified A-2 and A-3.
PW-15 is the Judicial Magistrate, who conducted the identification parade on 16.2.1998 and the proceedings have been marked as Ex.P-23. In fact, this witness PW-15 has not been cross examined at all. From the perusal of the evidence of this witness viz., the Judicial Magistrate as well as Ex.P-23, it could be seen that the proceedings were conducted as per the Rules and guidelines. Hence, we have no hesitation to come to the conclusion that the identification parade was conducted properly and in which, PW-5 identified A-2 and A-3. The next question is Whether PW-5 is a reliable witness and his testimony can be safely acted upon. This witness has been cross examined at length by the defence. A suggestion has been made to him that he is not an auto-driver and is in fact carrying on 'ganja' business and that certain cases are pending against him. PW-5 has emphatically denied all those suggestions. Yet another suggestion put forward is that he is deposing falsely only at the instance of the police and this suggestion has also been denied. We carefully perused the testimony of this witness and we do not find anything elicited which would discredit his testimony. We come to the conclusion that the evidence of PW-5 and PW-15 is worthy of acceptance.
9. Circumstance No. 2- The next circumstance relied on is the accused boarding the bus at Las Falls and thereafter getting down and running away on seeing PW-21. Of course, PWs-8 and 9, though speak about that, have not identified the three accused. Though this circumstance may not be one of the very clinching circumstances, yet, the same would be useful while this Court considering the evidence of PW-21.
10. Circumstance No. 3:- PW-21 is the Inspector of Police and as per the directions of the Deputy Superintendent of Police, at about 6.20 A.M. on 30.1.1998, he was checking the vehicles passing in Coonoor-Mettupalayam Road. In that process, he stopped the Government Transport Corporation Bus, carrying Registration No. RN-33.0.674. He got into the bus by the front entrance and seeing this, all the three accused got down by the rear entrance and ran away. He could recognise A-2 at that time, as that accused was also involved in another case in Cr. No. 108/97. This witness has been subjected to a lengthy cross examination. Learned counsel for the appellants have not pointed out anything which would be clinching in the cross examination and would make this Court to disbelieve his testimony. We carefully perused the testimony of this witness and we are satisfied that he has only deposed the truth. If really the prosecution wanted to create false evidence, it could have seen to it that this witness deposed as if he knew all the accused. Thus, we are inclined to place reliance on the testimony of PW-21.
11. Circumstance No. 4:-PW-6 is a resident of Pudukadu in Barliyar and she is having a petty shop on the road side. She knew A-1 and A-2 since sometime back, they too were also doing similar business on the road side. She had also occasions to see A-3 along with A-1 and A-2 on a number of times. On 30.1.1998 at about 6.30 A.M., when she was cleaning her front-yard, A-2 came there and asked her to give some water. He was found to be in perturbed mood. When she gave, he washed his face and drank. Then, he left. Similarly, the other two accused also came following him. For them also, she gave water as requested and they too found to be not normal. This witness specifically stated that the clothes of all the three accused were bloodstained at that time. The only suggestion put to this witness is that she has deposed only as tutored by the police which has been emphatically denied. Apart from that, we do not see anything in the cross examination for this Court to disbelieve her testimony. This Court is satisfied that she has deposed as to only what happened on that day and nothing else. This Court is satisfied that this circumstance relied on by the prosecution has been proved.
12. Circumstance No. 5:- The Investigating Officer, immediately after commencing the investigation, sought the assistance of the Finger Print Expert. PW-16 is the Officer, who visited the scene of occurrence and after a vigorous search, found three finger prints on the door of the Temple, which he marked as R-1, R-2 and R-3. R-1 was rejected as that was not sufficient to compare with other finger prints. R-2 was found to tally with the finger print of the deceased. R-3 was compared with the finger prints of the criminals which were available with the police. It was found that it tallied with that of A-1. The report sent by PW-16 in this regard is Ex.P-24. This witness has been subjected to cross examination and in which a suggestion was put to him that the finger prints were not taken from the door of the Temple as claimed and that further the same was taken from A-1 only at the police station and that the finger prints were not examined properly. All these suggestions have been emphatically denied by PW-16. We are satisfied that one finger print found on the door of the Temple at the scene of occurrence tallied with that of A-1.
13.Circumstance No. 6:- The next circumstance relied on by the prosecution is, the recovery of chappals from the scene of occurrence and the foot print impressions found on the said chappals were found tallied with the foot prints of A-2.
At the scene of occurrence, the Investigating Officer found a pair of chappals (MO-25). PW-17, as per the requisition of the Judicial Magistrate Coonoor, went to the Central Jail on 16.3.1998 and took the foot print impressions of the accused (each foot print three times). When the impressions found on the MO-25 chappals were compared, they tallied with the foot impressions of A-2. Ex.P-24 is the certificate of latent print examination. It could be seen therein that the similarity was at least in 8 aspects. Of course, this piece of evidence has been held by the Supreme Court as a very weak form of evidence, but nevertheless, it is a circumstance, which this Court can take note of.
14. Circumstance No. 7:- The Inspector of Police arrested A-1 on 3.2.1998 at about 3.45 P.M. near Mettupalayam Bus Stand. On arrest, he made voluntary confession statement. The accused offered to take the police party and witnesses and produce the crow bar MO-4 and other material objects which he had hidden in a bush in the garden of one Ramasami Pillai. Accordingly, the accused took the police party and witnesses at 8.30 A.M. on 4.2.1998 and produced MO-4 crow bar from a bush in Ramasami Pillai garden and the same was seized under a mahazar Ex.P-11. It was found that some hairs were sticking to the said crow bar. This material object was sent for chemical analysis. The Serologist found that the said weapon viz., crow bar was stained with human blood. The hair pieces sticking on the said item were found to be human hair and when compared with the hair described as Item No. 1 i.e., the hair of the deceased, they were found to be similar. Ex.P-30 is the report in this regard received from the Forensic Sciences Department. There are no reasons to reject this piece of evidence.
15. Circumstance No. 8:- Yet another circumstance is, the recovery of bloodstained clothes MO-27 series, pursuant to the confession statement made by A-3. A-3 was arrested on 3.2.1998 at about 3.45 P.M. at Sathyamurthy Nagar Bus-stand near Mettupalayam in the presence of witnesses. On arrest, he made a voluntary confession statement and on the next day, he took the police party and witnesses at 11.45 A.M. to a Garden near Barliar and from underneath a rock, he produced MO-27 series bloodstained clothes belonging to all the accused so also coins to the extent of Rs.350/- kept in a polythene bag (MO-28). These clothes were sent for chemical analysis and were found to contain human blood of 'A' group as that of the deceased. As far as this piece of evidence is concerned, we find that the defence has not challenged at all.
16. Circumstance No. 9:- Finally, we have the recovery of MOs-1 and 2 viz., cash box and four legs of the wooden stool to which the cash box was attached. These Material Objects were recovered pursuant to the confession statements made by A-2 and A-1 respectively. When A-2 was arrested at Sathyamurthy Nagar Bus-stand near Mettupalayam, he offered to take the police party and witnesses and to produce those articles which he had thrown at Las Falls Bridge. In fact, he did so on the next day at 10 A.M. MO-1 has been identified by PW-1 viz., son of the Secretary of the Temple, who used to visit the temple every day.
17. Thus, barring the evidence of PWs-8 and 9, we find that all the other circumstances relied on by the prosecution have been clearly established. We carefully examined the same and we are of the firm view that these established circumstances certainly lead to the one and only conclusion that it was these accused, who should have murdered the deceased. That being so, this Court has no hesitation to hold that these accused are responsible for the death of the deceased.
18. The next question is as to what is the offence committed by these appellants/accused?
The appellants/accused are guilty under Sections 397 and 457 IPC. and also under Section-302 read with 34 IPC. We confirm the conviction under Sections 397 and 457 IPC. and sentence them to undergo rigorous imprisonment of seven years for each offence. For the conviction under Section 302 read with 34 IPC., we sentence them to undergo life imprisonment. The sentences imposed on the appellants/accused are to run concurrently.
19. In the result, the appeals are dismissed.