Madras High Court
Rupa vs State Represented By on 28 March, 2016
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.03.2016 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN AND THE HON'BLE MR.JUSTICE S.NAGAMUTHU CRIMINAL APPEAL Nos. 185 and 193 of 2013 Rupa .. Appellant in Crl.A.No.185 of 2013 M.Balu .. Appellant in Crl.A.No.193 of 2013 Vs. State represented by The Inspector of Police Viruthampet Police Station Katpadi Circle Vellore District. Crime No.85 of 2009 .. Respondent in both Appeals Both Criminal Appeals are preferred under Section 374 (2) Crl.P.C against the judgment of conviction and sentence passed by the learned I Additional District & Sessions Judge, Vellore, made in S.C.No. 70 of 2010, dated 06.02.2013. For Appellant : Mr.V.Karthick in Crl.A.No.185/13for M/s.T.S.Gopalan & Co. For Appellant : Mr.M.G.Udhayashankar in Crl.A.No.193/13 for Mrs.S.Shantha Kumari For Respondent : Mr.M.Maharaja in both Appeals Additional Public Prosecutor * * * COMMON JUDGMENT
(The judgment of the Court was made by S.NAGAMUTHU, J.) The appellants are the accused Nos. 1 and 2 in S.C. No. 70 of 2010 on the file of the learned I Additional District & Sessions Judge, Vellore, and they stood charged for the offences as follows:-
Sl.No. Charge Number Rank of Accused Charged for the offence 1 Charge No.1 Accused Nos.1 and 2 Sec.120-B IPC 2 Charge No.2 Accused Nos.1 and 2 Sec. 302 IPC 3 Charge No.3 Accused Nos.1 and 2 Sec.380 IPC By common judgment, dated 06.02.2013, the Trial Court convicted the accused Nos. 1 and 2 under all charges and accordingly, punished them as detailed below:-
Sl.No. Rank of Accused Convicted for the penal provision Sentenced to undergo punishment 1 Accused Nos.1 and 2 Sec.120-B IPC To undergo Rigorous Imprisonment for seven years each and to pay a fine of Rs.1000/- each, in default to undergo Rigorous Imprisonment for a further period of one year each.2 Accused Nos.1 and 2
Sec. 302 IPC To undergo Imprisonment for Life each and to pay a fine of Rs.50,000/- each, in default to undergo Rigorous Imprisonment for a further period of four years each.3 Accused Nos.1 and 2
Sec.380 IPC To undergo Rigorous Imprisonment for two years each and to pay a fine of Rs.1000/- each, in default to undergo Rigorous Imprisonment for a further period of one month each.
The sentences were directed to run concurrently. Challenging the said judgment of conviction and sentence dated 06.02.2013, the appellants/ accused Nos.1 and 2 are before this Court with these appeals.
2. The case of the prosecution in brief is as follows :-
(i) The deceased in this case was one Mr.Gerald. He was hardly aged 60 years at the time of the occurrence. P.W.2-Veronica Gerald is his wife. P.W.1-Chandrasekar is his son-in-law. The deceased had three children. His son Francis had settled down in United States of America (U.S.A.). His eldest daughter one Luzina had also settled down in U.S.A. P.W.1 had married yet another daughter of the deceased viz., Sophia Carolene and they were residing in Chennai. The deceased and his wife (P.W.2) were residing at D.No.20, 7th Cross Street, Gandhi Nagar East, Vellore, Katpadi.
(ii) On 06.03.2009, around 9.00 p.m., P.W.2, her son Francis, who was then in Katpadi, and her daughter-in-law, left their house for Chennai. Thus, the deceased alone was in his house. They reached Chennai by midnight. P.W.3-Stanix Las @ Thanix is the sister's son of the deceased. The deceased owned a Ford Icon Car. The deceased had sent the said car to P.W.3 for selling the same. P.W.3 was then residing in Chennai. Since, P.W.3 could not sell the car, he sent back the car. P.W.4-Sundar drove the car to the house of the deceased. One Mr.Ganesh and Prabakar had gone along with P.W.4 to help him. They reached the house of the deceased between 12.00 to 12.30 a.m. on 07.03.2009. They found that there was no light in the house. In the flash of the headlight of the car they found that the main entrance of the house of the deceased was kept open. P.W.4 went near the main entrance of the house of the deceased and called the deceased by addressing him as "Sir". But, there was no response from inside. Then, P.W.4 left the car and went into the house. To his shock, P.W.4 found the deceased lying dead with injuries over his body. He informed Prabakar and Ganesh about the same. Immediately, they informed to P.W.3 over phone. P.W.3, in turn, requested them to remain at the place of occurrence. Accordingly, they remained.
(iii) P.W.3 inturn informed P.W.1 about the occurrence. P.W.1 spoke to his Uncle, by name, Gopikrishnan and requested him to rush to the place of occurrence. P.W.1 also rushed to the place of occurrence and reached the place of occurrence at 3.00 a.m. He found the deceased lying with injuries, more particularly, on his head. P.W.2 was also informed by her son Francis about the occurrence. She also rushed back to her house. She found the deceased lying dead with injuries. P.W.1 found that three gold rings owned by the deceased were missing. The cell phone of the deceased was also found missing. Immediately, P.W.1 went to the Police Station and made a complaint.
(iv) P.W.21-Kavitha, the then Sub-Inspector of Police of Virutampet Police Station, on receipt of the said complaint from P.W.1 under Ex.P.1 registered a case in Crime No. 85 of 2009 under Sections 302 and 380 IPC. Ex.P.21 is the First Information Report. She forwarded both the documents to the Court, which were received by the learned Magistrate at 11.30 a.m., on 07.03.2009.
(v) The case was taken up for investigation by P.W.22-Vaithiyalingam, the then Inspector of Police. He went to the place of occurrence and prepared an Observation Mahazar (Ex.P.2) and Rough Sketches (Exs.P.22, 23 and 24), in the presence of P.W.6- Gopikrishnan and another witness. He took bloodstains by using a gauze piece (M.O.15) and recovered the same under a Mahazar-Ex.P.3. He arranged for photographs being taken at the place of occurrence. Then, he conducted inquest on the body of the deceased and prepared Ex.P.25-Inquest Report. He forwarded the dead body of the deceased, through, P.W.18-Prabakaran, Special Sub-Inspector of Police to the hospital for post-mortem.
(vi) P.W.20-Dr.Senthamarai Kannan of Government Vellore Medical College, conducted autopsy on the body of the deceased on 07.03.2009, at 1.20 p.m. He found the following injuries on the body of the deceased :-
"External Injuries:- 1.Reddish brown coloured ligature mark seen 7 cm below chin running horizontally at the upper border of thyroid cartilage in front and sides of the neck. 7 cm length and 1.5 cm breadth from centre of the neck to right side of the neck. 12 cm length and 1.5 cm breadth from the centre to left side of the neck with no marks for 1 cm in the front. No marks seen on the posterior part of the neck. Margins of the neck abraded and bruised. Tissues underlying bruised and haemorrhage. Subplatysmal bleed noted below the ligature mark. Luminal surface of neck vessels bruised and haemorrhage.
2. Laceration over left side of forehead above the eyebrow 1 x 0.5 x 0.5 cm.
3. Laceration over left eye brow 0.5 x 0.3 x 0.3 cm.
4. Penile abrasion linear type 1 x 0.3 cm seen on the inner surface over the edge of prepuce skin.
5.Two lacerations inside the lower lip 1 x 0.3 x 0.3 cm on both sides.
6.Glistening material seen over serotum, left ear, left side cheek, legs, chest, arms.
On exploration of wounds 2 to 5 shows congenstion of tissues underneath.
THORAX: Ribs normal position of organs normal.
LUNGS: Right lung 1020 gm. Left lung 930 gm. Both lungs congested. Edematous. Sub pleural petechial haemorrhages seen over costo steernal surface, basal surface. On cut section oozing of pink frothy fluid.
HEART: Weight 270 gm enlarged in size. Chambers contained fluid blood cut section congested. Interventricular septum and ventricle valves thickened in size. Atheramatous plaques seen in lumen of coronary vessels with narrowing of lumen.
LARYNX AND TRACHEA: Mucosa congested, haemorrhagic.
STOMACH : Undigested food particles around 200 gms + cut section congested mucosa.
SMALL INTESTINE: Empty cut section congested mucosa.
HYOID BONE: Intact.
LIVER: Cut section congested.
SPLEEN: Cut section congested.
BLADDER: Empty.
VERTEBERAL COLUMN : Intact and NAD SKULL: Skull bones Intact. Surface vessels congested.
BRAIN: Weight 1400 gm cut section congested. Pelechial haemorrhages seen".
Ex.P.20 is the Post-Mortem Certificate. The Doctor opined that the deceased would appear to have died due to shock and haemorrhage, due to extensive injuries found on the body of the deceased. He has further opined that these injuries would have been caused manually on the deceased.
(vii) When the investigation was in progress, the 1st accused went to the office of P.W.13-Chinnaraj, the Village Administrative Officer of Tharapadavedu VIllage. On such appearance, at 4.00 p.m., the 1st accused wanted to give a voluntary confession. After having ascertained that the 1st accused was in a mood to voluntarily confess, P.W.13 started recording the same. In the said confession, the 1st accused confessed that he along with 2nd accused committed the murder of the deceased and stolen away the properties. Ex.P.5 is the said extra-judicial confession of the 1st accused. At the time when the confession was given, the Assistant of P.W.13, by name, Thangavel, was also present. Then, P.W.13 produced the 1st accused to P.W.22-Vaithiyalingam, the then Inspector of Police, along with a special report and extra-judicial confession. P.W.22 arrested the 1st accused.
(viii) On such arrest, in the presence of P.W.13 and his Assistant, the 1st accused gave a voluntary confession. P.W.22 reduced the same into writing in the presence of the same witnesses. At that time, the 1st accused was wearing glass bangles. P.W.22 recovered the same under a Mahazar-Ex.P.7. The said bangles were marked as M.O.22 (series). In pursuance of the said disclosure statement, the 1st accused took P.W.22, P.W13 and another witness to her house from where, she produced bloodstained chudithar (M.O.23); a gold ring with 20 diamond stones (M.O.1); a gold chain weighing 18.3 grams (M.O.6); a gold thali (M.O.7); a gold ear mattal-one pair (M.O.8); a gold vazhaiseepu (M.O.9); a gold thali mango (M.O.10); a gold thali gundu (balls)-4 Nos. (M.O.11); a gold thali gnanakuzhai-20 numbers (M.O.12); a gold thali coin (M.O.13); a gold sted with drops (jimiki) -1 pair (M.O.25); a gold sted with drops (adukku jimiki)-1 pair (M.O.26); silver anklets (M.O.27); a velvet Manipurse (M.O.33); a black colur Nokia Camera cell phone (M.O.4); a yellow colour cloth hand bag (M.O.34); a cash of Rs.3,41,800/- and coins worth Rs.1,150/- (M.O.14 series).P.W.22 recovered all these Material Objects under Ex.P.8 Mahazar.
(ix) The 1st accused then took P.W.22 and witnesses to the bus stand at Karigiri Mani Road and identified the 2nd accused. P.W.22 arrested him. On such arrest, the 2nd accused gave a voluntary confession, in which, he made a disclosure statement (Ex.P.9). At the time of arrest, the 2nd accused was wearing a polyester shirt, a gold ring with 16 diamond stones, a gold ring and having a Nokia cell phone. Then the 2nd accused took the police and witnesses to the house bearing Door No. 1/28 at Katpadi Taluk, Karigiri Main Road, from where, he produced the polyester shirt (M.O.2); the gold ring with 16 diamond stones (M.O.3); Nokia cell phone (M.O.14); a cash of Rs.13,000/- (M.O.14 series); and a plastic cover (M.O.35), in the presence of the same witnesses. P.W.22 recovered the same under a Mahazar-Ex.P.10. On returning to the Police Station, the accused Nos.1 and 2 were kept in the police lock up for some time.
(x) P.Ws.1 and 2 were summoned to the Police Station and they identified the gold jewels stolen away from the deceased. It came to light, during investigation, that the 1st accused was formerly working as a maidservant at the house of the deceased. In the course of the investigation, P.W.22 made arrangements for taking sample fingerprints of the accused Nos.1 and 2 for the purpose of comparison. Then, the accused Nos.1 and 2 were forwarded to the Court for judicial remand and the Material Objects were also produced before the Court. The sample fingerprints taken from the accused Nos.1 and 2 were sent to the Fingerprints Bureau for comparison with the chance fingerprints lifted from the place of occurrence. They tallied. Ex.P.11 is the Fingerprint Report.
(xi) The investigation was, thereafter, taken over by his successor P.W.23-Mahindran, the then Inspector of Police. P.W.23 made a request to the Court for forwarding the Material Objects for chemical examination. The Chemical Analysis Report revealed that there were bloodstains on all the Material Objects, except, on a nylon thread and they belong to ''A'' group. On completing the investigation, P.W.23 laid chargesheet against both the accused.
(xii) Based on the above materials, the Trial Court framed charges as detailed in the paragraph No.1 of this judgment. The appellants/accused Nos.1 and 2 denied the same. During the trial, in order to prove the case of the prosecution, on the side of the prosecution as many as 23 witnesses were examined; 26 documents; and 35 material objects were exhibited.
(xiii) Out of the said witnesses, P.Ws. 1 and 2 are the son and wife respectively of the deceased. They have stated that at the time of occurrence, the deceased alone was in the house. P.Ws.1 and 2 have further stated that they on receiving intimation about the death of the deceased, rushed to the house of the deceased and found the deceased lying dead They have also spoken about the missing of gold ornaments. P.W.1 has spoken about the complaint-Ex.P.1 made by him to P.W.21, the then Sub-Inspector of Police. P.W.3 is the sister's son of the deceased. He has stated that he has sent back the car belonging to the deceased, through P.W.4-Sundar, his driver. His driver informed that at about 12.30 a.m., on the day of occurrence, the deceased was found lying dead. P.W.5-Ramakrishna Reddy is a neighbour of the deceased. He has stated that by around 11.30 p.m., on the day of occurrence viz., on 06.03.2009, some unusual noise emanated from the house of the deceased and it stopped by 12.30 a.m., on 07.03.2009, according to P.W.5, the car of the deceased came and it came to light that the deceased was dead. P.W.6-Gopikrishnan, who is the Uncle of P.W.1, has also stated about the same facts.
(xiv) P.W.7-Gerald Wilson is the head of the Sniffer Dog Squad. According to him, at 6.15 a.m., on 07.03.2009, as per the request of P.W.22, he brought a Police Sniffer Dog to the place of occurrence, but, it proved futile.
(xv) P.W.8-Kottaiyan is a resident of Arumparuthi Village. He has stated that the deceased was doing Real Estate business. He has also stated that he purchased a Tractor bearing Regn.No.TN-23-M-5419 from the deceased and paid a sum of Rs.2,50,000/- to the deceased, few days before the date of occurrence. The prosecution tries to prove the possibility of the cash being kept in the house, through this witness.
(xvi) P.W.9-Dr.Sathiyaprakash was residing at Gandhi Nagar, Katpadi. On the day of occurrence, he was requested to come to the house of the deceased and accordingly, he went and examined the deceased and found him dead. P.W.10-Shanmuga Sundaram has spoken about the photographs of the dead body of the deceased taken at the place of occurrence.
(xvii) P.W.11-Babu is a driver by profession. He used to visit the house of the deceased often. According to him, he had driven the car of the deceased on several occasions at the request of the deceased. When he visited the house of the deceased, after few occasions, he had seen the 1st accused at the house of the deceased working as a maidservant. P.W.12-Saravanan has turned hostile and he has not supported the case of the prosecution in any manner.
(xviii) P.W.13 is the Village Administrative Officer, before whom the 1st accused appeared on 15.03.2009 at 4.00 p.m. and made an extra-judicial confession under Ex.P.5. He has also spoken about the arrest of both the accused and the consequential recovery of the stolen properties and the other properties.
(xix) P.W.14 is a Doctor by profession. He has stated that on 07.03.2009, both the accused came to his clinic. At that time, the 2nd accused had a small injury on his left small finger. He told the Doctor that while working he sustained the said injury. According to him, he gave treatment to the 2nd accused.
(xx) P.W.15-Dharmchand is a Jewellery Merchant. He was running a Jewellery Mart, under the name and style of Jayashree Jewellery at Vellore. According to him, on 07.03.2009, both the accused came to his shop and purchased new gold jewels weighing 5 3/4 sovereigns. M.Os. 6, 8 to 13 and M.Os. 25 to 27 are the jewels purchased by both the accused by paying cash of Rs.56,000/-
(xxi) P.W.16-Radhakrishnan is the Fingerprint Expert. He has stated that on 07.03.2009, at the request made by P.W.22, he visited the place of occurrence and searched for chance fingerprints in the house. He has searched and he found seven chance fingerprints in the house of the deceased, out of which, four were found in the wooden cupboard in the bed room and three were found in the steel bureau. He took the photographs of the same and marked the same as Exs.R.1 to R.7. Then, he took the fingerprints of the inmates and other relatives of the deceased. Exs.R.5, R.6 and R.7 tallied with the fingerprints of the deceased himself. Exs.R.1 to R.4 did not tally with the fingerprints of the deceased and other inmates. On 16.03.2009, he received the sample fingerprints of the accused Nos.1 and 2 in connection with the case in Cr.No.85 of 2009. When he compared the same, the chance fingerprints Ex.R.1 tallied with the fingerprint of the 1st accused and the chance fingerprints marked as Exs.R.2 and R.3 tallied with the sample fingerprints of the 2nd accused. Ex.P.11 is the file including the report.
(xxii) P.W.17-Dr.Saravanan has stated that on 16.03.2009, the 2nd accused was brought to him with a police memo at 5.10 p.m., by the police for examination. He found a contusion measuring 1 x 1 cm on the right cheek and also on the left small finger. Ex.P.12 is the Accident Register.
(xxiii) P.W.12-Prabakaran is the then Head Constable, who took the dead body for post-mortem. P.W.19-Ashok Kumar has spoken about the chemical examination conducted on the material objects and his report under Ex.P.17. P.W.20-Dr.Senthamarai Kannan has spoken about the post-mortem conducted on the body of the deceased and his final opinion regarding the cause of death. P.W.21-Kavitha, the then Sub-Inspector of Police, has spoken about the registration of the case on the complaint of P.W.1. PWs. 22 and 23-Vaithiyalingam and Mahindran, the then Inspector of Police respectively, have spoken about the investigation done and the filing of the final report.
(xxiv) When the appellants/accused Nos.1 and 2 were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, they denied them as false. But, they have not chosen to examine any witness nor to mark any document. Their defence was a total denial. Having considered all the above, the Trial Court found the appellants/accused Nos.1 and 2 guilty and convicted them under all the three charges and sentenced them to undergo imprisonment as stated in paragraph No.1 of this judgment. That is how, the appellants/accused Nos.1 and 2 are now before this Court with these appeals.
3. We have heard Mr.V.Karthick, the learned counsel appearing for the appellant/1st accused in Crl.A.No.185 of 2013; Mr.M.G.Udhayashankar, the learned counsel appearing for the appellant/2nd accused in Crl.A.No.193 of 2013; Mr.M.Maharaja, learned Additional Public Prosecutor appearing for the State; and we have also perused the records carefully.
4. This is a case based on circumstantial evidence. At the outset, we should say that it is well settled that in a case based on circumstantial evidence, the prosecution is legally expected to prove the circumstances projected by it beyond reasonable doubts and such proved circumstances should form a complete chain without any break, unerringly pointing to the guilt of the accused and there should not be any other hypothesis which is inconsistent with the guilt of the accused. Keeping in mind this broad principle relating to the circumstantial evidence, let us now go into the circumstances projected by the prosecution and the contentions of the learned counsel for the accused Nos.1 and 2 as well as the learned Additional Public Prosecutor appearing for the State.
5. The first and foremost circumstance projected by the prosecution is that, on the night intervening 06.03.2009 and 07.03.2009, the deceased alone was in his house at Katpadi. P.W.2, who is the wife of the deceased, had stated that on 06.03.2009, at 9.00 p.m., she along with her son Francis and her daughter-in-law left for Chennai, leaving behind the deceased alone at his house. Thus, the deceased was lastly seen alive at 9.00 p.m., on 06.03.2009, by P.W.2, her son Francis, and her daughter-in-law.
6. P.W.3, who is the sister's son of the deceased, had handed over the car belonging to the deceased to P.W.4 to return the same to the deceased. P.W.4 took the car from Chennai and reached the house of the deceased, by around 12.00 to 12.30 a.m., on 07.03.2009. At that time, according to the evidence, there was no light. Through the flash of the headlight of the car, P.W.4 found the main entrance of the house of the deceased kept open. When he raised alarm, no body responded from inside the house. When he entered into the house, he found the deceased lying dead with injuries. This circumstance has also been clearly established by the evidence of P.W.4. It is duly corroborated by the evidence of the neighbour P.W.5 and P.W.6, who is the Uncle of P.W.1. Thus, from these two circumstances, the prosecution has clearly beyond any doubt, established that the deceased was done to death some time between 9.00 p.m. on 06.03.2009 and 12.30 a.m. on 07.03.2009.
7. P.W.20-Dr.Senthamarai Kannan of Government Vellore Medical College, who conducted autopsy on the body of the deceased has found that there were a number of injuries on the body of the deceased and the death was due to shock and haemorrhage, due to the said injuries. He has further opined that these injuries would have been caused manually on the deceased. The evidence of P.W.20 is not under dispute. He has also spoken about the approximate time of the death of the deceased. From the evidence of P.W.20, the prosecution has proved that the death of the deceased was caused by a homicidal violence. This circumstance has also been proved beyond doubt by the prosecution.
8. P.W.1, who is the son of the deceased and P.W.2, who is the wife of the deceased, have stated that, at the time, when they saw the dead body of the deceased around 5.00 to 6.00 a.m., on 07.03.2009, they found three gold rings; two cell phones, missing. The missing of these gold jewels (M.Os. 1 to 5) has been mentioned even in the complaint-Ex.P.1. Similarly, during the course of investigation, it turned out that the cash of Rs.4,61,000/-, had also been stolen away, thus, the prosecution has proved that the murder of the deceased and the robbery of these valuable articles, including cash, had taken place in one and the same occurrence.
9. The next circumstance is that the 1st accused went to P.W.13, the Village Administrative Officer, on 15.03.2009, at 4.00 p.m., and made a voluntary confession. Mr.V.Karthick, the learned counsel appearing for the 1st accused would submit that the 1st accused would not have chosen a total stranger, viz., P.W.13, to confess his guilt. We find some force in the said argument. But, the fact remains that subsequent to the said confession, when the 1st accused was produced before P.W.22, she made a disclosure statement, from which, these stolen properties were recovered. The said disclosure statement and the consequential recovery of the stolen properties would make the extra-judicial confession believable. Though, an extra-judicial confession by its very nature is a weak piece of evidence, there can be no legal impediment to rely on the same, provided it draws corroboration from any other independent sources.
10. Here in this case, for his own reason, the 1st accused had gone to P.W.13, the Village Administrative Officer, to confess and for that confession, there is corroboration from other sources, such as subsequent disclosure statement made by 1st accused and recovery of the stolen properties. Therefore, we reject the argument of the learned counsel that the 1st accused would not have made such a voluntary confession to P.W.13 on 15.03.2009.
11. The next circumstance projected by the prosecution is the recovery of the Material Objects, at the instance of both the accused. According to the evidence of P.W.13 along with the confession of the 1st accused and special report, he produced the 1st accused to P.W.22. On such production, the 1st accused was arrested by P.W.22, in the presence of P.W.13 and another witness. On such arrest, he made a disclosure statement. That has been marked as Ex.P.6. In pursuance of the same, the 1st accused took P.Ws.22, 13 and another witness to her house and produced a gold ring with 20 diamond stones (M.O.1), which was lastly owned by the deceased. Apart from that, she produced M.O.23, which is a bloodstained chudithar. M.Os. 6 to 13, M.Os.25 to 27 and M.O.33 also were recovered. According to the case of the prosecution, these gold items were purchased by the 1st accused from P.W.15, the Jeweller, on 07.03.2009. Apart from that, a black colour Nokia cell phone (M.O.4) was also recovered from the 1st accused and the said cell phone belong to the deceased. The 1st accused also produced a sum of Rs.3,41,800/- by cash and coins worth Rs.1,150/- (M.O.14 series). The disclosure statement made by the 1st accused has been spoken by P.W.13 and P.W.22. Though, these witnesses were cross-examined by the counsel for the accused at length, nothing has been elicited from their evidence to discredit their evidence. The learned counsel for the accused Nos.1 and 2 is also not able to point out any infirmity in the evidence of these witnesses, so as to disbelieve them.
12. On being identified by the 1st accused, the 2nd accused was arrested. The involvement of the 2nd accused was not known, until the 1st accused disclosed about the same. This part of the disclosure statement made by the 1st accused also squarely falls within the ambit of Section 27 of the Indian Evidence Act, but, unfortunately, this part of the statement has not been proved by the prosecution. But, on that score, we cannot reject the evidence of P.Ws. 22 and 13, that the 1st accused took P.W.22, P.W.13 and another witness to the bus stand at Karigiri Main Road and identified the 2nd accused. This conduct of the 1st accused in taking the witnesses to the bus stand and identifying the 2nd accused squarely falls within the ambit of Section 8 of the Indian Evidence Act. This also strenthens the case of the prosecution as against the 1st accused.
13. On being identified by the 1st accused, the 2nd accused was arrested in the presence of the same witnesses. On such arrest, he had made a voluntary disclosure statement under Ex.P.9. Then the 2nd accused took P.Ws.22, 13 and another witness to his house and produced a polyester shirt (M.O.24); a gold ring (M.O.3); a gold ring with 16 diamond stones (M.O.2); a gold ring (M.O.3); and a grey colour Nokia Cell Phone (M.O.5). These three properties were identified as stolen properties from the deceased. A sum of Rs.13,000/- (M.O.14 series) and a plastic cover (M.O.35) were also recovered under a Mahazar-Ex.P.10. M.Os. 2 and 5 viz., the gold ring with 16 diamond stones and grey colour Nokia cell phone have been identified as stolen properties. The other recovered articles were not stolen properties. Thus, from these evidences, the prosecution has clearly established that these accused were found in possession of stolen properties as detailed hereinabove. Absolutely, the accused Nos. 1 and 2 have no explanation for the same.
14. As per Section 114 of the Indian Evidence Act, in the absence of any plausible explanation from the accused, the presumption arising out of the fact that the accused were found in possession of the stolen properties soon after the theft, is that they had only committed robbery and also murder in one and the same transaction. Of course, this presumption is rebuttable. Such rebuttal can be made either by means of a direct evidence or by means of some circumstances gathered from out of the evidence of the prosecution witnesses or the other materials placed on record. Here in this case, the accused Nos.1 and 2 have not rebutted the presumption at all, by offering any explanation. Thus the prosecution, by means of the unrebuttable presumption as stated by the prosecution has proved that it was these accused, who committed the murder of the deceased and took away the property belong to him including the cash.
15. There is yet another vital circumstance available in favour of the prosecution, which in our considered view has been proved by the prosecution. As we have already narrated on the day of occurrence, on the request made by P.W.22, the Fingerprint Expert (P.W.16) arrived at the scene of occurrence. On thoroughly examining the entire house, he found seven chance fingerprints in the house of the deceased, out of which, four were found on the wooden cupboard in the house and three were found in the steel bureau. According to P.W.16, he marked the same as Exs.R.1 to R.7. On comparing the fingerprints of the deceased with the said chance fingerprints lifted from the house of the deceased, he found the fingerprints marked as Exs.R.5 to R.7 tallied with that of the deceased himself. The chance finger prints Exs.R.1 to R.4 did not tally with either that of the deceased or that of the inmates of the house. According to his evidence, he received the admitted fingerprints of both the accused. On comparison, he found that the chance fingerprints marked as Ex.R.1 tallied with that of the admitted fingerprints of the 1st accused and the chance fingerprints marked as Exs.R.2 and R.3 tallied with the fingerprint of the 2nd accused. This, in our considered view, is a very strong circumstance in favour of the prosecution.
16. But, the learned counsel appearing for the appellants/accused Nos.1 and 2, would make an attempt to assail the same by mainly contending that the fingerprints of the accused Nos.1 and 2, which were taken for the purpose of comparison with the chance fingerprints lifted from the place of occurrence, were not taken in the immediate presence of a Magistrate or under the order of a Magistrate as provided in Section 4 of the Identification of Prisoners Act, 1920. The learned counsel made reliance on the judgment of the Division Bench of this Court in Bala & others vs. State represented by Inspector of Police, Jamnamarathur Police Station, Vellore District, reported in 2014- 1-L.W.(Crl.) 213.
17. We have gone through the entire judgment. In that case, the entire occurrence had taken place in the year 2002. The Division Bench of this Court had taken note of the fact that the three earlier Division Bench judgments of this Court in Thavaraj Pandian and 3 others vs. State, etc. reported in (2003-1-L.W.(Crl.) 413); Suresh and another vs. State, etc. reported in 2004-2-L.W.(Crl.) 814; and Sathish Kumar vs. State, reported in 2012 (2) MWN (Cr.) 305. Agreeing with the contention of the defence this Court has held that since the fingerprints of the accused were not taken in the manner prescribed in Tamil Nadu Police Standing Orders No.836 (now, PSO No.801), the evidence of the fingerprints expert cannot be relied upon to fasten the criminal liability on the accused.
18. In Thavaraj Pandian & 3 others vs. State, rep. By Inspector of Police, G-1, Thilagar Thidal Police Station, reported in 2003-1-L.W.(Crl.) 413, in an identical circumstances, the Division Bench of this Court had followed yet another Division Bench judgment of this Court in Ravanan vs. State, Inspector of Police, Kumbakonam & another, reported in 1994(1) L.W.(Crl.) 58, and in paragraph Nos.43 and 44, the Division Bench has held as follows:-
" 43. When similar question was raised earlier before a Division Bench of this Court in 1994 (1) L.W.(CRL.) 58 (Ravanan vs. State (Inspector of Police), Kumbakonam and another), it was argued that a Police Officer, during the course of investigation, after arresting a person, shall take him before the Magistrate concerned and obtain orders from the Magistrate before taking finger prints under Section 5 of the Act, as Section 4 of the Act would not confer power to the Police Officer for taking the fingerprints. This argument was rejected by the Division Bench and quoted the following observations made in Crl.A.No.169 of 1986, dated 07-02-1992:-
"This Act does not say that S.5 refers to the prescribed manner spelt out in S.4 of the Act. The power of the Magistrate under S.5 of the Act does not seem to affect the power of a police officer, to take finger prints or photographs of the persons arrested in connection with the various facts referred to under S.4 of the Act... S.8 confers power on the State Government to make rules for the purpose of carrying into effect the provisions of this Act. It was stated by the learned Public Prosecutor, that the State of Tamil Nadu had not framed any rules for the purpose of carrying into effect the provisions of this Act. After careful consideration of Ss.4 and 5 of the Act, we are unable to agree with Mr.N.Dhinakar that invariably during investigation a person arrested must be taken before a Magistrate and orders obtained before the finger prints of such persons could be taken by a Police Officer. Ss.4 and 5 operate in different fields and obviously if the Statements Government had made any rules for the purpose of carrying into effect the provisions of this Act, the Investigating officer, ought to have followed such rules which would fall within the ambit of 'Prescribed manner' contemplated under S.4 of the Act. If the State Government has not made any rules under the Act, it will be the duty of the investigating officer, to follow Police Standing Order 836, Police Standing Orders are in the nature of instructions given to be followed by the Police Force....
"Finger impressions shall be taken only by officers declared by a Superintendent or, in the City of Madras, by the Commissioner of Police, to be qualified to take clear and well-rolled impressions."
.......We think it necessary that the State Government must make rules under S.8 of the Identification of Prisoners Act, 1920 for the purpose of carrying into effect the provisions of the Act. Some of the State Governments have made rules. A proper procedure in obtaining finger prints must be followed for otherwise, the sanctity of scientific evidence not only gets obliterated but also becomes an exercise in futility..."
44. The abovesaid decision of the Division Bench of this Court would show that even in the absence of rules by the State under Section 8 of the Act, the Police Officer has to follow the Police Standing Orders, which gives the "prescribed manner" for taking the finger prints."
19. A perusal of these Division Bench judgments of this Court would go to show that all these Division Benches, including the latest Division Bench of this Court in Bala & Others vs. State, reported in 2014-1-L.W.(Crl.)213, have held that though Section 8 of the Identification of Prisoners Act, 1920, has empowered the State Government to frame Rules and to prescribe the manner in which the fingerprints should be taken, there were no such Rules issued by the State Government of Tamil Nadu. On that premise, the Division Benches took the view that the sample fingerprints should be taken, during the course of investigation, from an accused by following Tamil Nadu Police Standing Orders No.836, as extensively quoted in Bala & Others case (cited supra). In those cases, the Division Benches have taken the view that since the sample fingerprints of the accused were not taken by the Investigating Officer by following the Tamil Nadu Police Standing Orders No.836, the expert opinion based on such sample fingerprints taken from the accused before following the procedure cannot be relied on.
20. A reading of these judgments of the Division Benches would go to show that the Division Benches, with respect, we should say, were under the mistaken impression that prior to the Tamil Nadu Identification of Prisoners Rules, 2007, there were no Rules issued by the State Government of Tamil Nadu under Section 8 of the Identification of Prisoners Act, 1920. With great respect to these Division Benches, we should say that factually all these Division Benches were not appraised of the fact that there were Rules already issued by the Government in the year 1928 known as "Identification of Prisoners Rules published in Judicial Department Notification No.33, at page 1261 of the Fort St.George Gazette, dated the 21st August 1928".
21. A reading of the instant Rule viz., "The Tamil Nadu Identification of Prisoners Rules, 2007", would go to show that it came into force with effect from 13th November, 2007 and the State Government of Tamil Nadu has issued Rules, in exercise of its power under Section 8 of the Identification of Prisoners Act, 1920 (Central Act XXXIII of 1920), and in supersession of the Rules published in Judicial Department Notification No.33, at page 1261 of the Fort St.George Gazette, dated the 21st August 1928.
22. In the cases cited supra, the Division Benches have held that the non-following of the Tamil Nadu Police Standing Orders No.836, while taking the sample fingerprints of the accused, during the course of investigation, for the purpose of comparison would render the expert opinion of no use. With respect to these Division Benches, we have to say that, since, there was already in place the Identification of Prisoners Rules published in Judicial Department Notification No.33, dated the 21st August 1928, the Investigating Officers were expected to follow only the said Rules and not the Tamil Nadu Police Standing Orders No.836.
23. A reading of the Identification of Prisoners Act, 1920, would go to show that, it was in the nature of only a guidance to the police officers, as to how the fingerprints should be taken. Neither Section 4 of the Identification of Prisoners Act, 1920, nor any other provision mandates that during the course of investigation, the sample fingerprints of the accused could be taken only on the orders of the Magistrate. Both the Identification of Prisoners Act, 1920, as well as the Tamil Nadu Identification of Prisoners Rules, 2007, are only in the nature of guidelines for the police officers, as to how the fingerprints have to be taken by an officer, who has got the specified skill. It is conceivable that the purpose of entrusting the job to take the fingerprints only by the specified skilled officer is to ensure that such fingerprints taken from the accused are legible and fit for comparison. In other words, if the sampe prints taken are smudged or not clear, then, it may not be possible to use the same for comparing the same with the chance fingerprints. It was only for that purpose, the Rules say that skilled persons should take the sample fingerprints from the accused. Now, in the Rules in vogue, it has been stated that any person, who is in the above rank of police officer can take fingerprints from the accused for the purpose of comparison. A conjoint reading of the Rules and the provisions of the Act and the judgments would go to show that it is not mandatory that the sample fingerprints from the accused should be taken only in the presence of a Magistrate, that too, on the orders of the Magistrate. Therefore, we are bound, with respect, to say that the views expressed by various Division Benches, as referred to hereinabove, have not laid down the correct law.
24. In this regard, we may also refer to the following judgments of the Hon'ble Apex Court precisely on the same point:-
(i) In Shankaria vs. State of Rajasthan, reported in (1978) 3 SCC 435, a three-Judge Bench of the Apex Court, while dealing with Sections 4 and 5 of the Identification of Prisoners Act, 1920, in paragraphs 83 and 84 of the judgment after a detailed analysis of these two provisions, has held as follows:-
"83. Mr.Gambhir next contends that in view of Section 5 of the Identification of Prisoners Act, it was incumbent on the police to obtain the specimen thumb-impressions of the appellant before a Magistrate, and since this was not done, the opinion rendered by the Finger Print Expert, Mr.Tankha, by using those illegally obtained specimen finger-impressions, must be ruled out of evidence.
84. The contention appears to be misconceived because in the State of Rajasthan, the Police were competent under Section 4 of the Identification of Prisoners Act, to take the specimen finger-prints of the accused, and this they did, in the instant case, before the Superintendent of Police, Shri K.P.Srivastava. It was not necessary for them to obtain an order from the Magistrate for obtaining such specimen fingerprints."
(ii) In Mohd.Aman v. State of Rajasthan, reported in (1997) 10 SCC 44, in pargraph No.8 the Hon'ble Apex Court has held as follows:-
"8... It is true that under 4 thereof police is competent to take finger prints of the accused but to dispel any suspicion as to its bonafides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate. The other related infirmity from which the prosecution case suffers is that the brass jug, production of which would have been the best evidence in proof of the claim of its seizure and subsequent examination by the Bureau, was not produced and exhibited during trial for reasons best known to the prosecution and unknown to the court. For the foregoing discussion we are unable to sustain the convictions of Mohd.Aman."
A perusal of the aforesaid paragraph, it is clear as crystal that under Section 4 of the 1920 Act, the police is competent to take finger prints of the accused and such evidence would not be inadmissible.
(iii) In State of Madhya Pradesh vs. Devendra, (2009) 14 SCC 80, a three-Judge Bench of the Apex Court, analysing the anatomy of Sections 3, 4 and 5 of the Identification of Prisoners Act, 1920, has held in paragraph Nos.10, 11 and 14, as follows:-
"10.Section 3 deals with taking of measurements of the convicted persons. The photographs and measurements and photographs can be taken by the police officer in the manner prescribed. Section 4 deals with taking of measurement, etc. of non-convicted persons. It is taken if the police officer so requires it and it has to be done in the prescribed manner.
11. So far as Section 5 is concerned, it deals with the power of the Magistrate to direct any person for measurements or photographs to be taken if he is satisfied that for the purpose of any investigation or proceedings under the court the same is necessary.
....
14. Needless to say, the directions are subject to provisions of the Act, the Regulations and the Code. In case of conflict statute itself prevails. In case of complainant as well as witnesses, where the prosecution wants to protect the identity, the reasons, therefor, must be recorded. In case of rape victims, photographs should not be taken."
25. In all these judgments, the Hon'ble Apex Court, after having a forensic analysis of Sections 3, 4 and 5 of the Identification of Prisoners Act, 1920, has made it undoubtedly clear that the police officers are competent under Section 4 of the Identification of Prisoners Act, 1920, to take the specimen fingerprints of the accused and it is not necessary for them to obtain an order from the Magistrate for obtaining such specimen fingerprints.
26. Unfortunately, these judgments of the Hon'ble Apex Court, on this legal issue, were not brought to the notice of the Division Benches. Therefore, with respect to all, we have to say that the above judgments of the Division Benches of this Court, which are quite contrary to the law laid down by the Hon'ble Apex Court in the judgments (cited supra) should be rendered per incuriam.
27. In this regard, we may also refer to a Full Bench Judgment of the Delhi High Court in Bhupinder Singh vs. State, reported in CDJ 2011 DHC 1109. The reference to the Full Bench was necessitated, because in two cases viz., Harpal Singh vs. State (Criminal Appeal No.362/2008, dated 25.05.2010) and Satyawan vs. State (Criminal Appeal No.34 of 2001, dated 09.07.2009), the two Division Benches of Delhi High Court had ignored the part of the report of the expert on the ground that the Investigating Officer had taken specimen fingerprints in violation of the provisions of the Identification of Prisoners Act, 1920. A specific Division Bench had a doubt about the said legal position and referred the same to a Full Bench. The question before the Full Bench was as to, "Whether the sample fingerprints given by the accused during investigation under Section 4 of the Identification of Prisoners Act, 1920, without prior permission of the Magistrate under Section 5 of the Act will be admissible or not ?".
28. The Hon'ble Justice Dipak Misra (then Chief Justice of Delhi High Court and presently, The Hon'ble Judge of the Apex Court), speaking for the Full Bench, after having a detailed analysis of Sections 4 and 5 of the Identification of Prisoners Act, 1920, and after having referred to various judgments of the Hon'ble Apex Court has held in paragraph Nos.21 and 22 as follows:-
"21..... In the case at hand, on the basis of the authorities we have referred to hereinabove, it is clearly discernible that there is a difference in the language employed in Sections 4 and 5 of the 1920 Act. That has been explained by their Lordships in Shankaria (supra), Mohd.Aman (supra), Devendra (supra) and M.Krishna Mohan (supra).
22. Thus understood, in our considered opinion, the view expressed in the decisions in Harpal Singh (supra) and Satyawan (supra) is not the correct view. Therefore, the decisions rendered therein are hereby overruled. The view expressed in the case of Sunil Kumar (supra) by the learned Single Judge lays down the law in correct perspective.
29. In view of the judgments of the Hon'ble Apex Court, as referred to above, and in view of the judgment of the Full Bench of the Delhi High Court viz., Bhupinder Singh case (cited supra), we are very clear that the correct position of law is that it is not necessary for the police officer to obtain permission from the Magistrate and to take specimen fingerprints of the accused for the purpose of investigation. In otherwords, the police officers have been empowered to take sample fingerprints of the accused under Section 4 of the Identification of Prisoners Act, 1920. We also hold that even if the provisions of guidelines and the Rules have not been followed that will not vitiate the opinion of the expert based on the sample fingerprints taken from the accused.
30. We may also refer to a Division Bench judgment of this Court in Manickam vs. State by the Inspector of Police, Chithode Police Station, Erode District, reported in 2009 (5) CTC 316, which judgment was referred by the Delhi High Court in Bhupinder Singh case (cited supra). In the said judgment, the Division Bench consisting of the Justice C.Nagappan (as his Lordship then was) and Justice M.Jeyapaul, has taken a similar view, as we are now taking. Referring to the judgment of the Hon'ble Apex Court in Mohd.Aman vs. State of Rajasthan (cited supra), the Division Bench in paragraph Nos. 33 and 34 have held as follows:-
"33. The Supreme Court in Mohd.Aman and another vs. State of Rajasthan, 1997(10) SCC 44, observed as follows:-
"Apart from the above missing link and the sucpicious circumstances surrounding the same, there is another circumstance which also casts a serious mistrust as to genuineness of the evidence. Even though the specimen fingerprints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate. The other related infirmity from which the prosecution case suffers is that the brass jug, production of which would have been the best evidence in proof of the claim of its seizure and subsequent examination by the Bureau, was not produced and exhibited during trial for reasons best known to the prosecution and unknown to the Court. For the foregoing discussion we are unable to sustain the convictions of Mohd.Aman."
The Supreme Court to recognise the competency of the Police Officer to lift the Finger Print of the accused under Section 4 of the Identification of Prisoners Act, 1920. It has been observed therein that it is desirable to invoke the provision under Section 5 of the Identification of Prisoners Act, 1920, seeking orders of the learned Judicial Magistrate with a view to dispel any suspicion as to its bona fides.
34.There is no law which prohibits the Investigating Officer from lifting the Finger Print of the accused for comparison during the course of investigation of the case. In fact, the provisions found under Section 5 of the Identification of Prisoners Act, 1920, and Section 311-A, Cr.P.C. Speak only about the powers of the learned Judicial Magistrate, when he is approached by the Investigating Officer concrned for a suitable direction to the accused to co-operate by giving his finger print or signature or sample hand-writing as the case may be. It is to be noted that those provisions do not put an embargo on the Investigating Officers from acting on their own for lifting the finger print, signature or handwriting of the accused during the course of investigation. The Supreme Court has not laid down that the Investigating Officer should mandatorily invoke the provision under Section 5 of the Identification of Prisoners Act, 1920, whenever he resorts to lift the finger print of the accused for the purpose of investigation of the case."
31. In view of the above Division Bench judgment and in view of the judgments of the Hon'ble Apex Court (cited supra), we hold that the Division Benches, which decided Bala & others vs. State, reported in 2014-1-L.W. (Crl.)213; Thavaraj Pandian and 3 others vs. State, etc. reported in (2003-1-L.W.(Crl.) 413); Suresh and another vs. State, etc. reported in 2004-2-L.W.(Crl.) 814; and Sathish Kumar vs. State, reported in 2012 (2) MWN (Cr.) 305, have not laid down the correct position of law and therefore, we are constrained to state that they are per incuriam.
32. Now, turning to the facts of the case, the sample fingerprints of the accused in the instant case were taken by the police constable by following the Tamil Nadu Identification of Prisoners Rules, 2007. When the sample fingerprints were sent for comparison, it revealed that the finger prints of the accused Nos.1 and 2 tallied with the chance fingerprints lifted from the place of occurrence. No where, the accused Nos.1 and 2 have taken a defence that the specimen fingerprints were not taken from them at all. The Fingerprint Expert, who compared the same, has not stated that the sample fingerprints were not fit for comparison. When that be so, it is too late in the day for the learned counsel for the accused Nos.1 and 2 to argue that the expert opinion should be rejected on the ground that the sample fingerprints were not taken by following the procedure contemplated under Section 5 of the Identification of Prisoners Act, 1920. Therefore, we reject this argument of the learned counsel for the appellants/accused Nos.1 and 2.
33. The presence of the finger prints in the house of the accused, in our considered view is a very important incriminating circumstance against the accused Nos.1 and 2. Unless, the accused Nos.1 and 2 are able to explain, as to how their fingerprints came into being in the house of the deceased, it is certainly incriminating circumstance against the accused Nos.1 and 2.
34. At this juncture, Mr.V.Karthick, the learned counsel appearing for the 1st accused would submit that there is a correction of date in the Fingerprint Slip containing the sample fingerprints of the accused Nos.1 and 2. According to him, originally the date was written as "15.03.2009", but, the same has been corrected as "16.03.2009". Of course there is a correction, but, when the said document was proved, there was no doubt raised regarding the said document, as to why such correction was made. In the absence of any challenge made to the said correction, now, it is not open for the accused Nos.1 and 2 to make an attempt to make out any point on the same.
35. Mr.Karthick, the learned counsel appearing for the 1st accused would submit that since the 1st accused was a maidservant at the house of the deceased, it was quite possible that her fingerprints would have come into being on the wooden cupboard and the steel bureau. This argument does not persuade us at all. It is not, as though, either at the time of the date of occurrence or immediately before, the 1st accused was working as a maidservant. It was long before that she was working as a maidservant and for a considerable time, she was not working there. Thus, the fingerprints of the 1st accused would have come into being only at the time of occurrence. So far as the 2nd accused is concerned, he is a total stranger to the house of the deceased, he has not explained to this Court, as to how his fingerprints came into being inside the house of the deceased. This incriminating circumstance also strenthens the conclusion that it was these two accused, who committed the murder of the deceased and took away the properties.
36. In view of the foregoing discussions, we hold that the proved circumstances, as dealt with hereinabove, unerringly point to the guilt of the accused and there is no other hypothesis, which is inconsistent with the guilt of the accused. Thus, the Trial Court was right in convicting the accused Nos.1 and 2.
37. Now, turning to the quantum of punishment is concerned, it is seen that the Trial Court has imposed only a minimum punishment, which also does not warrant any interference at the hands of this Court. We find no merit at all in these appeals and therefore, the appeals are liable to be dismissed.
38. In the result, these Criminal Appeals are dismissed. The conviction and sentence imposed on the appellants/accused Nos.1 and 2 by the Trial Court are hereby confirmed. Since, the appellants/ accused Nos. 1 and 2 are on bail, the Sessions Court is directed to take steps to secure their custody to commit them to prison to undergo the remaining period of sentence. The period of imprisonment already undergone by the appellants/ accused Nos.1 and 2 shall be given set off under Section 428 Cr.P.C.
(M.J.J.,) (S.N.J.,)
28.03.2016
Index : Yes
Internet : Yes
paa
To
1.The Inspector of Police
Viruthampet Police Station
Katpadi Circle
Vellore District.
2.The I Additional District
& Sessions Judge, Vellore.
3.The Additional Public Prosecutor,
High Court, Chennai.
M.JAICHANDREN.,J.
AND
S.NAGAMUTHU.,J.
paa
CRIMINAL APPEAL Nos.
185 and 193 of 2013
28.03.2016