Madras High Court
Udhaya @ Udhayakumar vs State Rep. By The Asst.Commissioner on 4 October, 2013
Author: S.Rajeswaran
Bench: S.Rajeswaran, A.Arumughaswamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 04.10.2013 Coram: The Honourable Mr.Justice S.RAJESWARAN AND The Honourable Mr.Justice A.ARUMUGHASWAMY Criminal Appeal Nos. 695 and 751 of 2010 and 83 of 2011 and 17 of 2011 Udhaya @ Udhayakumar ... Appellant in Crl.A.No.695/2010/ Accused No.2 1. Mohandass 2. Sathyabhama .. Appellants in Crl.A.No.751/2010 /Accused Nos. 3 & 4 Yasin @ Mohammad Yasin .. Appellant in Crl.A.No.83 of 2011/ Accused No.1 Versus State rep. by the Asst.Commissioner, R-3 Ashok Nagar Range, R-7, K.K.Nagar Police Station, Chennai. Cr.No.1258 of 2008) ... Respondent/Complainant Criminal Appeal Nos. 695 of 2010, 751 of 2010 and 83 of 2011 have been filed under Section 374(2) of Criminal Procedure Code against the conviction and sentence imposed upon them by the Additional District and Sessions Judge-Fast Track Court No.V, Chennai-1, in S.C.No.316 of 2010 dated 22.10.2010. Criminal Appeal No.17 of 2011 has been filed by a third party under Section 454 of the Code of Criminal Procedure seeking to set aside the Judgment of the learned Additional District and Sessions Judge and Fast Track Judge No.V, Chennai in Sessions Case No.316 of 2010 dated 22.10.2010 in so far as the disposal of Material Object No.109. For Appellant in C.A.No.695/2010 .. Mr.A.Raghunathan, Sr.Counsel for M/s Shash & Shash For Appellant in C.A.No.751/2010 .. Mr.P.Kumaresan For Appellant in C.A.No.83/2011 .. Mr.K.Veeraraghavan For Appellant in C.A.No.17/2011 .. Mr.M.R.Thangavelu For Respondent .. Mr.S.Shanmugavelayutham, Public Prosecutor, assisted by Mr.V.M.R.Rajendran, Additional Public Prosecutor JUDGMENT
(Judgment of the Court was delivered by A.Arumughaswamy, J) Criminal Appeal Nos. 695 of 2010, 751 of 2010 and 83 of 2011 have been filed by the accused 1 to 4 against the conviction and sentence imposed against them in judgment dated 22.10.2010 delivered by the Additional District and Sessions Judge-Fast Track Court No.V, Chennai in S.C.No.316 of 2010. Criminal Appeal No.17 of 2011 has been filed by the third part praying to set aside the said judgment in so far as the disposal of Material Object No.109.
2. The Accused 1 to 4 are the appellants. Subsequent to the occurrence, one Sathish who has been arrayed as A5 died by committing suicide and his wife is A4. The conviction and sentence imposed by the trial Court are:
A1 to A4 u/s 120(B) of IPC .. 7 years R.I. each and to pay a fine of Rs.1000/- each i/d to undergo 1 month R.I. each A1 and A2 u/s 460 IPC .. 7 years R.I. each and to pay a fine of Rs.5000/- each and i/d to undergo 3 months R.I. each.
A3 and A4 u/s 460 r/w 120(B) IPC.. 7 years R.I. each and to pay a fine of Rs.5000/- each and i/d to undergo 3 months R.I each.
A1 and A2 u/s 382 IPC .. 7 years R.I. each and to pay a fine of Rs.10,000/- each and in default to undergo 4 months R.I. each.
A3 and A4 u/s 382 r/w 120(B) IPC: 7 years R.I. each and to pay a fine of Rs.10,000/- each and i/d to undergo 4 months R.I. each.
A1 and A2 u/s 302 r/w 34 IPC (3 counts): Life imprisonment (3 counts) each and to pay a fine of Rs.15,000/- each and i/d 6 months R.I. each.
A3 and A4 u/s 302 r/w 120(B)(3 counts) .. Life imprisonment (3 counts) each and to pay a fine of Rs.15,000/- each and i/d to undergo 6 months R.I. each.
The sentences are ordered to run concurrently.
M.O.1, 24, 25, 69, 184 and defence M.Os. 1 to 6 are ordered to be retained in file. M.Os. 22, 23, 51, 59, 70, 72, 73, 80, 86 to 91, 92 to 96, 104, 105, 107, 108, 109, 172, 173, 178, 179, 183 are ordered to be confiscated to State after time for appeal is over and if there is no appeal preferred. M.Os. 2 to 21, 47 to 50, 52 to 58, 60 to 68, 71, 81 to 85, 97 to 103, 106, 110 to 118, 119 to 170, 174, 175 and 181 are ordered to be handed over to the legal heir of deceased Saravanan and Kasthuri on proper identification after time for appeal is over and if there is no appeal preferred.
3. The facts of the case are as follows:- The Deceased Dr.Saravanan (D1) and the Deceased Kasturi (D2) are husband and wife and the Deceased Anbarasi is the maidservant of D1 and D2. The Deceased 1 and 2 are not having issues. They are residing in their own house. Deceased Dr.Saravanan was a retired Chairman of Tamil Nadu Mines and Minerals. Deceased Kasthuri is the house-wife. Admittedly, they were having huge wealth as well as foreign currencies. The deceased Dr.Saravanan whenever used to go out would usually call Sathish-A5 who died by committing suicide subsequent to the occurrence, as a spare driver to avail him whenever they were going to trip. While being so, as per the case of the prosecution three conspiracies were hatched between A1 to A5, one at 10.30 a.m. on 17.11.2008 another conspiracy at 9.30 a.m. on 18.11.2008 and the last one at 3.30 p.m. on 19.11.2008. As per the case of the prosecution on the midnight of 18.11.2008 near Porur lake under a bridge A1 to A4 hatched a conspiracy in which they arrived at a decision that A1, A2, and A5-Satish would go into the house of deceased Dr.Saravanan. The above conversation was overheard by P.W.3-Sathivel, P.W.7-Vikki @ Alagar Raja. The further case of the prosecution is that P.W.8-Suresh overheard the conversations on three successive days, 17th to 19th November 2008 A1, A2 and Satish-A5 had in Sasi Cabs. Under these backdrops now we can switch over to the occurrence.
4. P.W.1-Unnikrishnan was working as Selection Grade Assistant in the Office of the Tamil Nadu Mines and Minerals Department. He got employment only at the influence of the deceased Dr.Saravanan. As usual on 19.11.2008, he attended the house of the deceased Dr.Saravanan at 5.30 a.m. and after finishing his kitchen work, he went to his office at 8.00 a.m. Thereafter in the evening he went to the house of Dr.Saravanan at 7.00 pm. and after preparing tiffin he left to his house at 8.30 pm. On 20.11.2008 at 5.30 a.m. when he went to the house of Dr.Saravanan, the main door was kept open and the keys were kept on the Pigeo Car dicky. He went to the second floor where the girll gate was closed and the wooden door nearby the grill gate was opened. When he went inside the kitchen, he saw the deceased Dr.Saravanan who was lying dead in a pool of blood. When he went to the bed room to see the wife of Dr.Saravanan, where under the cot she was found dead. The servant maid Anbarasi also was found dead on the way to the bed room. The things from the house of decreased Dr.Saravanan were scattered here and there. Thereafter, P.W.1 informed the police about the occurrence.
5. P.W.37-Gowthaman was working as Inspector of Police R.K.Nagar Police Station and he has deposed that on 20.11.08 on information over phone he went to the scene of occurrence at 6.30 am. and examined the informer Unnikrishnan and reduced it in writing under Ex.A1. Thereafter, he informed about the occurrence to the Assistant Commissioner of Police and on the instructions from the Assistant Commissioner of Police, he arranged for sniffer dog and Fingerprint Expert and prepared Express FIR under Ex.P117 under Section 302 IPC and sent the same to the Assistant Commissioner of Police for further investigation. In the presence of the Assistant Commissioner and Sub-Inspector Mohan, photographs were taken in the place of occurrence with the help of Photographer Kandan. Thereafter, on instructions from the Assistant Commissioner, he conducted inquest on the dead body of Kasthuri at 8.00 a.m. and recorded inquest report under Ex.118. Thereafter, he sent a requisition along with the 3 dead bodies for postmortem.
6. P.W.38-Dr.Baskaran attached to Royapettah Government Hospital, on receipt of requisition from the Inspector of Police, K.K.Nagar Police Station, conducted autopsy on the dead body of Dr.Saravanan, at 2.10 p.m. rigor mortis was present in the body and the injuries found on the body are as follows:
1) Abrasion 4.5 x 2 cms over top of left shoulder
2) Two scratch abrasion merged with each other over front of left shoulder measuring 6.5 x 0.5 cm.
3) Deep transverse cut injury over front and sides of neck 17 x 1.5 to 3 cms x 5.5 cms seen above the level of thyroid cartilage with severing of the surrounding deeper soft tissues including muscles. Nerves and Blood vessels of that region between hyoid and thyroid cartilage exposing the laryngeal cavity and several oropharynx. The angels are acute and the margins are clean out.
4) oblique stab injury 5 x 1 cm x 2 to 6 cms over right axilla.
5) Stab injury over outer aspect of right side of chest 5.5 x 2.5 cms x cavity deep directed obliquely downwards and inwards. The wound is seen 19 cms away from anterior midline and 17 cms below the apex of right axila over front of upper part of abdomen along anterior midline, the wound is directed backwards. The wound is situated 15 cms above the umbilicus.
6) An incise injury of 2 x 1 cm to 2.5 cm. on front side of the stomach directed backwards from the middle line upto 15 cms.
7) Sliding chop injury 8 x 4 x cms over back of left hand at the level of middle third of shaft of 4th and 5th meta carpal bones exposing the severed soft tissues and partially severed 5th meta carpal.
8) Superficial incised would 4 x 0.8 x 0.5 cm situated over back of lower third of left arm.
9) Oblique chop cut injury 5.5 x 1 x 4 cms over the inner aspect of right hand with severing of the soft tissues of the hypo thenar eminence.
10) Cut injury 10 x 1 to 2 cms x 7.5 cms over mid back of upper part of Neck severing of the soft tissues exposing the spinal coloum.
The above injuries are fresh and ante mortem in nature.
On dissection: Scalp appear pale. Cranial vault and menages intact. Brain pale. Hyoid bone and Laryngeal cartilage Intact. Serving Larynx seen at the level between hyoid bone and Tracheal cartilage corresponding to the injury No.3. Severing of Laryngal Pharynx and other soft tissues in the plane made out corresponding injury No.3, Ribs intact. Penetrating injury seen at the level between 3rd and 4th rib corresponding to the external injury No.4. Penetrating injury 5.5 x 2.5 cms seen at the level between 7th and 9th rib of the right side of chest along lateral curvature made out corresponding to external injury No.5. Heart normal in size; Chambers contained scant fluid blood. Pericardium show evidence of old surgical correction. Left ventricle hypertrophied. Aorta showed asthermatous plaques. Valves appear normal. Coronaries thickened and showed anansomosing collaterals. Lumen narrowed. Left lung C/s. pale. Right lung pale and collapsed and shows a penetrate injury 1.5 x 0.5 x 1 cm over outer aspect of upper lobe. Right dome of Diaphragm show a perforating injury 5 x 0.5 cm corresponding external injury No.5. Stomach contained 200 gms of semi digested semi solid food material. Mucosa pale. Liver pale. Right lobe of liver show a penetrating injury 4 x 0.5 x 2 cms corresponding to external injury No.5. Bruising of structures forming stomach bed and mesenteric tissue made out corresponding to external injury No.6. Spleen and Kidneys C/s. Pale. Intestines distended with gas. Bladder empty. Pelvis and Spinal column intact. Severing of soft tissues over upper part of back of neck and the para vertebral tissues made out corresponding to external injury No.10 exposing the atlanto occipital joint, spinal cord, atlas and partially severed 2nd cervical vertebra. He gave opinion that the deceased would appear to have died of Hemorrhage, shock and due to the injuries sustained and he issued Ex.P119 the postmortem certificate. The death would have occurred 14 to 16 hours prior to postmortem is his opinion.
On the same day at about 3.30 p.m. he conducted postmortem on the dead body of Kasthuri. Rigor mortis present all over the body ad he found the following injury on the dead body:
1) Stab injury 3 x 1 x 2 cms over upper part of outer aspect of left arm. Both angels are acute and margins are clean out.
2) Oblique stab injury 4.5 x 1 cm x cavity deep over back of lower part of left side of chest directed downwards and inwards and forwards. The 11th rib and soft tissues of 10th intercostal space are seen severed. The outer end is acute and the inner end is less acute.
3) Chop injury 11 x 2 to 5 cms x 4 cms over left side of front and left side of neck severing the soft tissues of that region exposing the cervical vertebra. The angles are acute and the margins are clean out.
4) Chop injury 9 x 2 x 3 cms x muscle deep over left side of neck 1 to 1.5 cms above the previous injury communicating with the same in the deeper plane.
5) Stab would 4 x 1 x 4 cms over left side of back of head 4 cms above the outer ends of previous injury.
6) Stab injury directed obliquely downwards and inwards involving the helix of left ear measuring 4.5 x 1 to 2 cms x cavity deep.
7) Cut injury 1.5 x 1 cm x Cavity deep over back of helix of left ear communicating with the previous injury.
8) Oblique chop injury over back of lower part of right side of neck and adjacent name of neck 9 x 1 to 1.5 cms x 2 cms the inner end is seen at the posteriors midline 6 cms below external occipital protuberance. The outer end is seen 4 cms below right ear. All the above injuries are fresh ad ante mortem in nature. On dissection: Scalp pale; Cranil vault and meanings intact. Brain C/s. Pale. Soft tissues of the front and left side of neck madeout corresponding to the external injury No.3 exposing the laryngeal cartilage and sevaral soft tissues of theat place. Severing of the soft tissues of nape of neck and soft tissues of the back of root of left side of neck made out corresponding to external injury No.8. Severing of the Helix, Triages and soft tissues of left ear and adjacent left side of Face made out corresponding to external injury No.5 and 6. Exposing the middle ear cavity and the Tempro mandibular joint. Hyoid bone and Laryngeal cartilage intact. Heart enlarged. Pericardium is thickened and adherent in the myocardium at various sites and show evidence of old surgical repairs. Both ventricles hypertrophied, left verticle dilated. Aorta dilated and show athermatous plaques. Valves appear thickened. Coronaries appear thickened and showed collaterals and Anastomic Channels. Lumen narrowed. Lungs C/s pale. Perforating injury seen involving the portions crus of left side of Diaphragm made out corresponding to external injury No.2. Stomach contained 150 gms of creamy and pasty food material. Mucosa pale. Liver and spleen C/s pale. Right kidney C/s pale. Left kidney upper third of left kidney is seen severed from the rest of the left kidney. Intestines distended with gas. Bruising of mesenteric tissues of left side of abdomen made out. Bladder dilated and show spherical Bladder stone 5 cms in diameter. Utter is not found. Pelvis and Spinal column intact. He opined that the deceased would have died of Haemorrhage, shock and due to the injuries sustained and he issued Ex.P120 the postmortem certificate and between 15 to 17 hours Kasthuri would have died.
On the same day at 4.15 p.m. he conducted postmortem on the body of Anbarasi. Rigor ortis present all over the body and the following injuries were found on the dead body:
1) Transverse chop injury over front and right side of neck a the level of middle third of thyroid cartilage measuring 11 x 2 x 4 cms x cavity deep exposing the severed thyroid cartilage, food pipe and other soft tissues. Angles are acute and the margins are clean out.
2) Stab wound 2.5 x 1 x 1.5 cms over upper inner quadrant of left breast directed backwards and outwards.
3) Stab wound 4.5 x 1 to 2 cms x cavity deep over outer lower quadrant of left breast directed downwards, backwards and medially.
4) Stab wound 2.5 x 1 x 1 cm over front of upper part of left arm.
5) Stab wound 2 x 1 cm x cavity deep over upper part of right side of chest at the level between 7th and 8th intercostal space and 15 cms below right axilla directed downwards and inwards.
6) Cut injury 4.5 x 1.5 cms x 1 cm over out aspect of left wrist with tailing above and behind involving lower part of left fore arm and adjacent back of hand.
7) Laceration 5.5 x 2 x 0.8 cm over root of left thumb and adjacent back hand and web space between thumb and index with dislocation of metacorpo phalangeal joint of left thumb.
8) Cut injury 2 x 1 cm x bone deep over back of root of left index with partial severing of the proximal phalangeal bone.
9) Cut injury 1 x 0.5 x 0.5 cm over back of proximal third of left mid finger.
10) Beveled chop injury 2.5 x 2.5 x 0.5 cm involving the outer aspect of mid phalanx of left index finger.
11) Cut injury 1.5 x 0.5 x 0.5 cms over back of left hand at the root of 2nd meta carpal bone.
12) Oblique cut injury 3.5 x 1 to 2 cms x 0.6 cm over front and inner aspect of left wrist.
13) Two stab wounds seen over the right elbow and adjacent fore arm and arm. The lower end of upper and the upper end of lower merges with each other measuring 8.5 x 2 to 3 cms x 4 cms.
14) Stab wound over back of lower third of right fore arm 4.5 x 2 to 3 cms having an exit would over front of right forearm 4 x 2 cms.
15) Beveling chop injury over front of lower end of right fore arm and adjacent palm 4 x 1 to 3.5 x 0.5 cm.
16) Two transverse chop injuries over back of lower third of neck the upper wound measuring 5 x 2 cms x bone deep and the lower one 6 x 2 cms x bone deep each set 1 cm apart communicating with each other in the deeper plane tissues. The above injuries are fresh and ante mortem in nature.
17) An irregular postmortem burns 5.5 x 4.5 cms seen over the upper part of right buttock.
18) An irregular post mortem burns 8 x 3 to 5 cms seen over upper and mid part of left buttock.
On dissection: Scalp pale. Cranial vault and meanings intact. Brain pale. Severing of the thyroid cartilage seen involving the middle and the surrounding soft tissues along the plane of injury No.1 exposing the cavity of larynx of the esophagus exposing the cervical vertebrae. Hyoid bone intact. Perforating injury 2 x 1 cm seen in 3rd intercostal muscles of left side of chest corresponding to the external injury No.2. A perforating injury 4 x 1 cm seen at the level of 5th intercostal space corresponding external injury No.3. A perforating injury seen at the level of 8th intercostal space corresponding to external injury No.5. Heard normal in size; chambers contained scant fluid blood. Left lung collapsed and show penetrating injury 1.5 x 0.5 x 1 cm over outer aspect of lower lobe. Right lung shows incised wound involving the lower border of lower lobe, perforating injury seen involving the right dome of diaphragm 2 x 0.5 cm. Stomach contained 150 gms of semi digested well discernible food material. Mucosa pale. Liver pale and shows a penetrating injury 2 x 0.5 x 1 cm involving the superior surface of right lobe of liver corresponding to external injury No.5. Spleen and kidneys C/s. pale. Intestines distended with gas. Bladder empty. Uterus normal in size. Endometrial cavity empty. Pelvis and spinal column intact. He opined that the deceased would appear to have died of hemorrhage, shock and due to the injuries sustained and he issued Ex.P112 the postmortem certificate and also certified that between 17 to 19 hours the death would have occurred. Knives were shown to him and the knives could cause such injuries found on the dead body is his opinion and more than one person could have caused the injuries on the dead body was his opinion.
7. P.W.40-Sethu, was working as Assistant Commissioner of Police at the time of occurrence and at 6.30 a.m on 20.11.2008, on receipt of an information over phone from the Inspector of Police, about the occurrence, he rushed to the place of occurrence at 6.56 am and arranged for sniffer dog and photographer. With the help of photographer, photographed the three dead bodies and the scene of occurrence. He recovered one gold ring from the dead body of Dr. Saravanan and one gold stead from the dead body of Kasthuri, one gold chain from the mosaic floor and the rope worn by the deceased Dr.Saravan and handed over the same to P.W.25-Ganeshraj , relative of the deceased. He prepared observation mahazar and rough sketch under Ex.P127 and 128. Thereafter, directed to conduct inquest on the dead bodies. Accordingly, Inquest was conducted and the inquest report was prepared under Ex.P129 and 130. He seized the M.O.1-Photo Album, M.O.2-Citizen Quartz Watch with gold colour strap, M.OI.3-Western Quartz Watch with gold colour strap, M.O.4-Rado Watch with black colour strap, M.O.5-Chain, M.O.6-Chain, M.O.7 Gold fish Dollar, M.O.8-T.V.Model Ring, M.O.9-Elephant hair Ring, M.O.10-Elephant hair Ring, M.O.11-Thali Chain, M.O.12-Diamond stud, M.O.13-Chain placed to God Idle, M.O.14-Ghain Quartz Watch with gold colour strap, M.O.15-Ring, M.O.16-Diamond shaped Ring, M.O.17-Thambu Kayiru Chain, M.O.18-Spatika Mala, M.O.19-Small Bangles, M.O.20-Small Bangles, M.O.21-Om Dollar with Chain, M.O.22-Pulsor bike, M.O.23-Cellphone, M.O.24-CD, M.O.25-Memory Chip, M.O.26-Broken upper part of the Iron Box, M.O.27-Black colour handled knife, from the scene of occurrence under the cover of Ex.P131 and one bloodstained towel under Ex.P132 and one black colour suit case under Ex.P133. Thereafter with the help of fingerprint expert two footprints have been taken under Ex.P134. He examined the witnesses and recorded their statements. Thereafter, he sent the dead bodies for postmortem and the postmortem reports are Exs.119 to 121. AR copies received from the doctor are Exs. 135 to 137. The clothes recovered from the dead bodies are Ex.P55. Photographs are Ex.P69. Photographs from fingerprint expert are Ex.P138. Requisition to sent the M.Os. to Forensic Lab is Ex.P139 and 140. Thereafter, he examined the witnesses and recorded their statements. Form 95 for seizure of material objects are Ex.P141 to 144. Thereafter, he was transferred to some other station and P.W.41-Parantham took up the investigation. He visited the scene of occurrence and examined the witnesses and recorded their statements and on completion of investigation P.W.40 filed charge sheet against A1 to A4 and one Satish A-5 who committed suicide, on the file of the XXIII Metropolitan Magistrate, Saidapet, Chennai, charging them for the offence under Section 120-B, 460, 460 r/w 120B, 382, 382 r/w 120-B, 302 r/w 34 (3 counts), 302 r/w 120-B (3 counts). Upon committal, the proceedings were made over to the court of the V Fast Track Judge, Chennai. The trial Court framed charges under Sections 120-B, 460, 460 r/w 120B, 382, 382 r/w 120-B, 302 r/w 34 (3 counts), 302 r/w 120-B (3 counts). Following the framing of a "plea of guilty" from the accused was recorded by that Court.
8. The trial Court on appreciation of oral and documentary evidence and upon hearing the arguments advanced by the learned counsel appearing for the accused and the learned Public Prosecutor, ultimately found the accused guilty of the offence under Section 120-B, 460, 460 r/w 120B, 382, 382 r/w 120-B, 302 r/w 34 (3 counts), 302 r/w 120-B (3 counts) and convicted and sentenced them as stated above. The learned trial judge ordered to run concurrently the sentences awarded to the accused and also set aside the period of custody already undergone by the accused under the proviso to Section 428 Cr.P.C. Aggrieved over the judgment of conviction and sentence passed by the trial Court, the accused have come forward with the present appeal.
9. Heard submissions of Mr.A.Raghunathan, senior counsel appearing for the appellant/second accused in C.A.No.695 of 2010 Mr.P.Kumaresan,learned counsel appearing for the appellants/accused 3 and 4 in C.A.No.751 of 2010, Mr.K.Veeraraghavan learned counsel appearing for the appellant/accused No.1 in C.A.No.83/2011 Mr. M.R.Thangavelu learned counsel appearing for the appellant in C.A.No.17 of 2011 for return of the property, and Mr.S.Shanmugavelayutham, learned Public Prosecutor, assisted by Mr.M.R.Rajendran, Additional Public Prosecutor, appearing for the respondent.
10. The contention of the learned senior counsel appearing for the appellant/accused is that to prove the conspiracy between the accused to commit the offence no evidence has been let in except the evidence of P.W.8 who is the Manager in Sasi Cabs and his introduction is only for the purpose of the case and the case has not been properly investigated. Three unmatched fingerprints, coupled with the absence of fingerprints of A2 at the scene of occurrence created considerable doubt about the veracity of the prosecution case about the involvement of A2 in the commission of any of the offences with which he stood charged. The learned senior counsel for the second accused narrated the following points for consideration:-
(1) Though the occurrence had taken place on 19.11.2008, even as per the evidence of P.W.41-Paranthaman- Investigating Officer, till the date of passing of order in W.P.No.1741 of 2010 by the First Bench of this Court, no investigation has been made and admittedly, no clue has been arrived at by the prosecution.
(2) How the accused have entered into the house of the deceased, absolutely there is no evidence making entry of the house of the deceased. In fact, the Investigating Officer has recovered only four jewels inside the house that too were not produced before the Court and directly handed over to P.W.25 who claims to be the relative of deceased Dr.Saravanan, which is against law and without permission of the court.
(3) Admittedly, D1 and D2 had two lockers in the Indian Overseas Bank, Ashok Nagar Branch, for opening that lockers the Investigating Officer has not obtained any permission from the Court. The Investigating Officer has not taken any inventory, whereas, as per the case of the prosecution they found the locker was empty except some silver articles and gold (D1 and D2) (page 215). There is no evidence with regard to the other items of gold and silver available.
(4) Even to say the last seen theory also, there is no proof that the three accused have entered into the house of the accused. Identification parade has been conducted and then fingerprints also have been taken from the scene of occurrence for which forensic lab has given opinion that the fingerprints have not been tallied with the accused. As per the evidence of P.W.40-Assistant Commissioner, that those three persons have not been traced out. Further, as per the forensic expert evidence the fingerprints do not tally with the present accused. (P.W.5 page 41). 150 foot prints of the accused also have been taken and that they do not correlate with the three footprints taken in the scene of occurrence. Further, the peculiarity of the case has not been proved by reading of the evidence of the two witnesses viz., P.W.5 who has stated that all the three accused entered into the house of the deceased was seen by him and P.W.6-Auto driver and he enquired about the vulcanizing shop from one of the accused. Before committing murder, A1-parking his two wheeler before the auto driver who has been examined as P.W.6 at 10.00 O' clock in the night. Till he comes at 12.30 A.M. his vehicle was there and his auto-rickshaw was also there is also peculiarity as pointed out by the learned senior counsel appearing for the appellant/second accused, these are the defects and glaring contradictions and this alone will prove that the investigation has not been conducted in a proper manner and no effort has been taken by the Investigating Officer concerned to rectify these defects. Hence, he prays for acquittal of the appellant/second accused. The respective learned counsel appearing for the appellants in other two appeals are also adopting the arguments advanced by the learned senior counsel appearing for the appellant in C.A.No.695 of 2010.
11. The learned counsel for the appellant in Crl.A.No.17 of 2011 contended that the appellant had lent money to the third accused and the said loan was repaid by him by post dated cheques. Furthermore, M.O.109 seized from the appellant is not the currency stolen from the victim and as such the very seizure of currency from the appellant is bad in law. Even though the appellant was cited as a prosecution witness in the final report filed by the first respondent, and summons was served on him, for the best reasons known to the prosecution, he was not examined and had no opportunity to appraise the trial Court as to the legitimacy of the seizure. Hence, he prays that the judgment of the trial Court in so far as confiscation of M.O.109 has to be set aside and the appeal has to be allowed.
12. The learned Public Prosecutor has contended that precautions have been taken regarding the evidence of P.W.8, P.W.3 and P.W.7 who have spoken about the conspiracy. In so far as the other evidences are concerned, he contended that all the materials available have been placed before the Court. Hence, he prays that no interference is warranted by this Court to set aside the judgment of the trial Court. Hence, he prays for dismissal of the appeals.
13. The question arises for for our consideration is:
Whether the conviction and sentence passed by trial Court against the appellant/accused are sustainable?
14. P.W.1-Unnikrishnan was working as Selection Grade Assistant in the Office of the Tamil Nadu Mines and Minerals Department. P.W.2-Vasudevan is a goldsmith. P.W.3-Sakthivel was examined to speak about the conspiracy hatched between the accused on 17.11.2008. P.W.4-Velmurugan, P.W.5-Elumalai and P.W.6-Ravichandran were examined to speak about the last seen theory of the accused at the scene of occurrence. P.W.7-Vikki @ Alagar Raja was examined to speak about the conspiracy hatched between the accused at 8.00 pm on 18.11.2010, P.W.8-Suresh was examined to speak about the conspiracy hatched between the accused at 10.30 a.m. on 17.11.2008. P.W.9-Senthilkumar was examined to speak about the possession of foreign currency by the accused. P.W.10-Charles Louise was examined to speak about the possession of foreign currency by the accused. P.W.11-S.Prabu, P.W.12-Samarapuri, P.W.13-Srinivasaraghavan was working as a Senior Manager of Royal Bank of Scotland, Chetpet, Chennai and P.W.14-Balaji was working as an Officer in the said bank and they were examined to speak about the recovery of 16 cheques under Ex.P21(series). P.W.15-Ganeshlal was running a pawn broker at M.G.R.Nagar, Chennai-78 was examined to speak about the pledging of M.O.11 and M.O.50 and seizure of the same by the police and the statement given by him under Ex.P23. P.W.16-Amjath Beg was running Money Exchange business at Pondy Bazaar, Chennai and he was examined to speak about the exchange of foreign currency made by the accused under Ex.P11. P.W.17- Vellaisamy was a car driver in Bright Driver Service and he was examined to speak about the dropping of the D1 and D2 to their residence on 19.11.2008 and handing over the keys of the car to the deceased Anbarasi at 10.30 p.m. on the same day. P.W.18-Arunsharma, was running a Pawn Broker business at Kodambakkam High Road, T.Nagar, Chennai and he was examined to speak about the pledging and redeeming of the jewels by the accused. P.W.19-Paramanantham was running Pawn Broker business at Dr.Sadasivam Road, T.Nagar, Chennai and he was examined to speak about the pledging and redeeming of jewels by the accused. P.W.20-Satish was examined to speak about the suicidal death of A5 at 10.00 p.m. on 23.3.2010. P.W.21-Sivaprakasam was working as Accountant at Shanthi Gold House, T.Nagar, and he was examined to speak about the exchange of foreign currency by the accused. P.W.22-Radhika Balachandar was working as a Scientific Officer of Forensic Department. She was examined to speak about the material objects received by her for forensic analysis. P.W.23-Vimali Thiagarajan was working as an analyst and she was examined to speak about the bloodstained material objects received by her for analysis and the reports issued by her under Ex.P38 to P41. P.W.24-Lakshmi Balasubramanian was working as a Scientific Officer (DNA) at Forensic Department and she was examined to speak about the bloodstained material objects received by her for DNA test and the reports issued by her under Ex.P42 and P43. P.W.25-Ganesh Raj claims to be a relative of deceased Saravanan and he was examined to speak about the identification of Mos. 2 to 4, 9 and M.Os. 60 to 67 seized from the accused by the Investigating Officer and the statement given by him under Ex.P44. P.W.26-Selvam was working as a Chief Manager at Bharat Agricultural Development Bank at Villupuram and he was examined to speak about the pledging and redeeming of jewels. P.W.28-Kandan was running a photo studio and he was examined to speak about the photographs taken by him at the place of occurrence under M.O.69 series. P.W.28-Ganapathy was working as VAO and he was examined to speak about the mahazar witness to the confession statement recorded from the accused and seizure of M.Os. P.W.29-Marimuthu was working in Muthoot Finance, at Porur, Chennai and he was examined to speak about the pledging of 74 items of jewels by the accused under 8 receipts. P.W.31-Ranganathan was examined to speak about the recovery of Material Objects identified by the accused in which the above said 74 items of jewels from Muthoot Finance, have been marked as M.Os.61, 62, 64, 110 to to 170. Other items recovered have been marked as M.Os. 16, 49 to 59, 66 to 68, 79 to 108. P.W.30-Thirunavukkarasu was working as Head Constable and he was examined to speak about the handing over of dead bodies for postmortem at Royapettah Government Hospital and after postmortem recovery of M.Os. 74 to 78 from the bodies of the deceased under Ex.P55 and handing over the material objects to the Forensic Department. P.W.32-Ganesan was working as VIII Metropolitan Magistrate and he was examined to speak about the recording of statement of witness under section 164 of Cr.P.C. P.W.33-Baskaran was working as XIV Metropolitan Magistrate and he was examined to speak about the statements of the witnesses recorded under Section 164 of Cr.P.C. P.W.34-Sivathsan was working as Vth Metropolitan Magistrate, and he was examined to speak about the identification parade conducted by him at Central Prison, Puzhal, Chennai. P.W.35-Chandran was working as XXI Metropolitan Magistrate and he was examined to speak about the identification parade conducted by him at Central Prison, Puzhal, Chennai. P.W.36-Rajeswari was working as VI Metropolitan Magistrate and she was examined to speak about the altered FIR received by her and the statements recorded by her under Section 164 Cr.P.C.
15. While informing so, one Advocate S.Rajadevan has filed Public Interest Litigation in W.P.No.1741 of 2010 after the later informing the first Bench no breakthrough regarding the criminal none was arrested. Therefore, W.P.No.1741 of 2010 has been disposed of by the first Bench of this Court by order dated 18.02.2010. Only after disposal of the said writ petition, pursuant to the directions issued by the First Bench of this Court, investigation has been commenced on 12.04.2010. It is pertinent to note that as per the direction of this Court the then Commissioner of Police has to break through the criminal found out the accused if not within a month he himself has to transfer the investigation to the CBCID. Thus, the first bench has fixed the time. Under such circumstances, P.W.41-Investigating Officer commenced the investigation in this background.
16. According to the case of the prosecution P.W.17 Vellaisamy was a car driver in Bright Driver Service and he has deposed that after dropping of D1 and D2 at their residence on 19.11.2008 and handing over the keys of the car to the deceased Anbarasi at 10.30 p.m. on the same day and thereafter, the door was locked inside and she left to the bedroom which claims to be in the second floor. According to the prosecution, thereafter, in the midnight of 19.11.2008 till in the early morning on 20.11.2008, the occurrence had taken place, jewels, Indian and foreign currency have been looted from the house of D1 and D2. If that be so, how it is possible for the accused to gain entry into the house of the deceased which was locked inside without breaking the lock or any portion of the building or grills. Such is that investigation in this regard. This is the first doubt that arises in our mind regarding the investigation.
17. P.W.6-Ravichandran is an auto driver has spoken that at 11.00 pm. on 19.11.2008 while he was proceeding to his home with his bi-cycle, one of the wheel of the bi-cycle got punctured. At that time, he has seen the three accused who were proceeding at the gate of the deceased house. He asked them where is the vulcanizing shop nearby, for which one of the three accused scolded him with filthy language. Even after this, P.W.6 left the residence of D1 and D2. The prosecution has attempted to prove the presence of the three accused by examining P.W.6 to speak that the accused were entering into the house of the deceased.
18. So far as the occurrence aspect is concerned this Court has expressed its dissatisfaction over the investigation and that has already been discussed in the above paragraphs. Now, this Court has very much pain to say how the investigation has been conducted. P.W.41 in his cross-examination by the counsel appearing for A2 has admitted that :
@ @uh$%njtd; cau;ePjpkd;wj;jpy; bghJey tHf;F xd;W nghl;lhu; vd;why;. rupjhd;/ ehd; me;j tHf;fpy; g';bfLj;Jf;bfhz;nldh vd;why;. g';bfLj;Jf;bfhz;nld;////////ePjpkd;wj;jpy; vd;dplk; fhz;gpf;fg;gLk; Mtzk; ehd; cau;ePjpkd;wj;jpy; muR tHf;Fiu"Uf;F bfhLj;j Mtzk;/ mjpy; vd; ifbaGj;Jk; ,Uf;fpwJ vd;W brhd;dhy; rupjhd;/ me;j Mtzk; v/rh/M/1///////////////////@ Arrest of A1 and A4 has been made on 12/13.04.2010 and the gold jewels and foreign currency stolen from the house of D1 and D2 on the night of 19.11.2008 were recovered from them. But no identification parade has been conducted to identify the accused.
@1?Mk; vjpupia 12/4/10?y; ifJ bra;a[k; tiu ,e;j tHf;fpy; ve;jtpj Jg;g[k; fpilf;fhky; ,Ue;jpUf;fpnwhk; vd;W brhd;dhy;. rupay;y/ mjw;F Kd;ghfnt v';fSf;F tptu';fs; fpilj;jJ/ Mdhy; 1?Mk; vjpup ifJ bra;ag;gl;l gpwF cWjpahf v';fshy; ,e;j tHf;fpy; rk;ge;jg;gl;l vjpupfis bjupe;Jbfhs;s Koe;jJ/ 12/4/10w;F Kd;ghf ve;j ehspy; tHf;fpw;fhd Jg;g[ Jy';fpaJ vd;w nfl;lhy; Fwpg;gpl;l njjp vJt[k; brhy;yKoahJ/@
19. P.W.40-Sethu, the investigation officer in his evidence has stated that: he recovered one gold ring from the dead body of Dr. Saravanan and one gold stead from the dead body of Kasthuri, one gold chain from the mosaic floor and the rope worn by the deceased Dr.Saravan and handed over the same to one Ganeshraj , relative of the deceased.
@ fle;j 20/11/08 md;W ehd; brd;id khefu mnrhf;efu; rufj;jpy; cjtp Mizahsuhf gzpapypUe;jnghJ fhiy 6/30 mstpy; nf/nf/efu; fhty;epiya Ma;thsu; bfsjkd; vdf;F nghd; K:yk; bfhLj;j jftiy bgw;W rk;gt ,lkhd vz;/9 enlrd; rhiy. mnrhf;efu; brd;id vd;w tpyhrj;jpw;F brd;nwd;/////////////// rutzd; gpnujj;jpypUe;J j';f nkhjpuk; 1. f!;Jhup gpnujj;jpypUe;j j';f fk;ky; 1. bkhirf; jiuapypUe;j j';f brapd;. rutzd; ifapy; fl;oapUe;j fWg;g[ fhrp fapW Mfpaitfis m';fpUe;j mtuJ cwtpdu; fnzc&;uh$; vd;gtuplk; nghl;nlh vLj;jgpd;g[ xg;gilj;njhk;;//////// 10/45 kzpastpy; rkug[up uj;jpdnty; Kd;dpiyapy; rk;gt ,lj;jpypUe;j bghUl;fs; 1 Kjy; 27 mapl;l';fis ifg;gw;Wjy; kfrupy; ifg;gw;wpndd;///////////////////gpd;du; 12/40 kzpastpy; ifnuif epg[zu; uhn$e;jud; vd;gtu; mwpt[iuapd; ngupy; lhu;f; gput[d; fyu; N:l;nf!; xd;iw rhl;rpfs; Kd;dpiyapy; ifg;gw;wpndd//////////gpd;du; 1/15 kzpastpy; rikayiwapy; fhzg;gl;l ,uz;L fhy; jla';fis ifnuif epg[zu; ,uz;L fz;zhofspy; vLj;jhu;/////////////rh/bgh/69 g[ifg;gl';fis ehd; ePjpkd;wj;jpy; jhf;fy; bra;njd;/ gpd;g[ 24/11/2008 md;W ifnuif Tlj;jpypUe;J fpilf;fg;bgw;w g[ifg;gl efy; ePjpkd;wj;jpw;F mDg;gpitj;njd;/ @
20. So far as the fingerprints taken by the fingerprint expert it is stated that out of 150 foot prints and 7 fingerprints neither of them tally with the four fingerprints already taken from the place of occurrence. The four fingerprints also does not tally with the fingerprints of the accused also has to be seen. P.W.41-Paranthaman, Investigating Officer in his cross-examination made by the counsel for A2, has deposed that:
@cjahtpd; ifnuifia mtiu ifJ bra;j gpwF ehd; vLj;njdh vd;why;. vLj;njd;/ mtw;iw ifnuif gjpt[ mYtyfj;jpw;F mij gupnrhjid bra;a mDg;gpitj;njd;/ ehd; mtu;fsplkpUe;J bgw;w mwpf;ifapy; 2?Mk; vjpupapd; ifnuif rk;gt ,lj;jpypUe;J vLf;fg;gl;l ifnuifa[ld; xj;jpUf;ftpy;iy vd;gij bjupe;Jbfhz;nld;/ rk;gt ,lj;jpypUe;J 7 ifnuif gjpt[fs; vLf;fg;gl;lJ vd;W g[yd;tprhuizapy; ehd; bju;pe;Jbfhz;nldh vd;why;. 4 nuiffs; jhd; rk;gt ,lj;jpypUe;J vLf;fg;gl;lJ/ rk;gt ,lj;jpypUe;J vLf;fg;gl;l 4 nuiffs; ahUilaJ vd;gJ gw;wp vd;dhy; ePjpkd;wj;jpy; brhy;yKoa[kh vd;W nfl;lhy; vdf;F Kd;dhy; tprhupj;j g[yd;tprhuiz mjpfhupia ehd; tprhupj;jjpy; ifnuif gjpt[fspy; xU nuif cd;dpfpUc&;zd; vd;gtupd; nuif vd;gJ bjupe;Jbfhz;nld;/ kw;w 3 nuiffs; ahUilaJ vd;W TwKoahJ/ Mdhy; mij gw;wp ehd; ifnuif epg[zuplk; tprhupj;jjpy; mtu; me;j 3 nuiffSk; xnu MSilajhf ,Uf;fyhk; vd;W bjuptpj;jhu;/ ,d;iwa ehs; tiu me;j 3 nuiffs; ahUilaJ vd;gij ehd; bjupe;Jbfhs;stpy;iy vd;why;. mij gw;wp TWk; epiyapy; ehd; ,y;iy////////////////////////// @ Admittedly, the investigating officer has not found out that who is the person concerned, the nominee of the deceased has not been investigated by the prosecution. Under such circumstances, how the Manager of the Bank can allow the person to open the locker without the permission of the court has to be investigated. In the evidence P.W.41 has deposed that.
@//////////////////ehd; g[yd; tprhuizapy; rutzd; kw;Wk; mtUila kidtpapd; t';fp fzf;Ffis bgw;nwdh vd;why;. ,y;iy/ nrJ(m/rh/40) mtu;fs; vd;dplk; nfhg;gpid xg;gilj;j gpwF mtu; nrhjid $hgpjh jahupj;j Mtzj;ij ehd; bgw;nwdh vd;why;. ehd; yhf;fiu nrhjpf;ftpy;iy vd;gjhy;. nrJ vd;dplk; mJgw;wpa Mtzk; vJt[k; rku;g;gpf;ftpy;iy vd;gjhy;. mJgw;wp vdf;F bjupahJ/ nrJ t';fp yhf;fiu jpwe;J ghu;j;jhuh vd;gij ehd; mtuplk; tprhupf;ftpy;iy/ t';fp yhf;fiu jpwe;J ghu;f;fntz;Lbkd;gJ ,e;j tHf;F g[yd;tprhuizapy; Kf;;fpakhf g';F tfpf;ff;Toa xU mk;rk; vd;gij ehd; epidj;J ghu;f;ftpy;iyah vd;why;. vdf;F Kd;dhy; cs;s cjtp Mizau; Vw;fdnt g[yd;tprhuiz nkw;bfhz;L ,Ue;jpUe;jjhy;. mJ gw;wp vdf;F njhztpy;iy////////////////////@
21. In so far as the investigation is concerned, once the investigating officer is also sailing with the person concerned to share the properties of the deceased who have no issues, have suppressed the keys of the bank locker seized from the house of the deceased without preparing any mahazar for seizure of the keys of the bank locker.
22. P.W.41 in his cross-examination admitted that at the time of occurrene, the accused hatched conspiracy to commit murder of the deceased only with an intention to loot the huge wealth of the deceased. But here also the officials concerned i.e., P.W.40 and P.W.41 appears to have colluded with the bank manager and P.W.25 hand in glove and they have taken away the huge wealth of the deceased. Therefore, this aspect also has to be investigated.
23. As already discussed above, it is very clear that pursuant to the conspiracies between them on 17th 18th and 19th November 2008, the accused entered into the house of D1 for looting the accumulated wealth of the D1. But as per the evidence available on record, they have not intended to commit the heinous crime of murder of D1 to D3. Even as per the case of the prosecution there is no specific evidence as to how the accused entered inside the house of the deceased Dr.Saravanan as it was locked inside is also now known. The recovered material objects were not sent to the Court. The bank locker has been opened by the Investigating Officer not in the manner known to law and further the whole investigation is starting only after the orders passed by the First Bench of this Court that too after two years. Para 6 of the order passed by the First Bench of this Court dated 08.02.2010 in W.P.No.1741 of 2010 runs as follows:-
"6. In these circumstances, we are of the view that in the event the present officers are not in a position to solve this case within about four weeks from today, the Commissioner of Police will request the State Government to transfer the case to the C.B.C.I.D."
Further the earlier investigating officers viz., P.W.37, P.W.40-Sethu, Assistant Commissioner of Police and P.W.41-Assistant Commissioner of Police, and the then Bank Manager who helped the investigating officer to open the lockers in the name of the deceased and other connected persons who are all involved in this scandal also have to be examined by the CBI. Furthermore, the Material Objects marked on the side of the defence also have to be scrutinized by the CBI. The recoveries do not correlate the properties and the prosecution has miserably failed to prove how the Investigating Officer is able to get the keys of the locker and even if it has been recovered, it is only by way of mahazar or Form 95. But it has not been done so. That aspect also has to be enquired into. How the Bank Manager has opened the locker in the absence of D1 and D2 also has to be enquired. Therefore, we are of the view that the above said defects which are fatal to the case of the prosecution have to be rectified. However, merely on the basis of the said defects, instead of acquitting the accused considering the commission of triple murder of D1, who had been former Chairman of TAMIN, his wife and servant maid, with an intention to loot the huge wealth i.e., cash, jewels and foreign currency and disposing of the appeals will not be sufficient to meet the ends of justice. Therefore, the case has to be split up so far as the crime before the date of occurrence and after the date of occurrence how they divided the jewels and currencies belonged to the deceased also has to be investigated. In both the aspects it has to be decided and dealt with by the CBI.
24. In the result, Crl.A.Nos. 695 of 2010, 751 of 2010 and 83 of 2011 are allowed. The judgment of conviction and sentence passed by the trial Court has to be set aside and the matter is remitted back to the investigating agency viz., Joint Director of CBI, Chennai, for reinvestigation afresh in two parts, one regarding the occurrence and the second aspect has already been discussed in para 23. by examining the above said persons apart from the persons who have already been examined. The parties are at liberty to produce fresh materials if any before the Investigating Agency. The appellants/accused are entitled to file bail application before the trial Court and on filing such bail application, the trial Court is directed to release the appellants/accused on surrendering each of them with solvency from two sureties each for a sum of Rs.25,000/- (Rupees Twenty-five thousand only) to the satisfaction of the trial Court. The appellants/accused are directed to appear before the concerned Magistrate Court on every Monday at 10.30 a.m. until further orders. The appellants/accused are directed to cooperate for investigation.
25. In so far as the Crl.A.No.17 of 2011 is concerned, the appellant seeks to set aside the judgment confiscating M.O.109. In fact the appellant was sited as one of the prosecution witness in the final report filed by the first respondent and summons was served on him to examine him as a witness. But unfortunately, for the best reasons known to the prosecution he was not given an opportunity to adduce his evidence regarding possession of M.O.109. Hence, we are of the view that since the matter is remitted back to the Joint Director of CBI, Chennai, for reinvestigation afresh, the appellant is at liberty to approach the trial Court with appropriate application, after four months from the date of this order, for redressing his remedy and it is for the trial court to dispose of the application on merits. Consequently, connected Crl.M.Ps. are closed.
(S.R.,J) (A.A., J) 04.10.2013 Index: Yes/No Internet:Yes/No gr. S.RAJESWARAN, J AND A.ARUMUGHASWAMY, J gr. To
1. The Additional District and Sessions Judge-Fast Track Court No.V, Chennai
2. The Asst.Commissioner, R-3 Ashok Nagar Range, R-7, K.K.Nagar Police Station,Chennai.
3. The Public Prosecutor, High Court, Madras.
Judgment in Crl.A.Nos.695 and 751 of 2010 and 17 and 83 of 2011 04.10.2013