Madras High Court
Vadivelu Alias Chetti Vadivelu vs State Rep. By on 15 September, 2006
Author: M.Chockalingam
Bench: M.Chockalingam, A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 15/09/2006 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE A.SELVAM CRIMINAL APPEAL NO.723 OF 2003 CRIMINAL APPEAL NO.819 OF 2003 1.Vadivelu alias Chetti Vadivelu 2.Periyasamy 3.Kumar 4.Veramani .. Appellants in CA No.723 of 2003 Periyasamy .. Appellant in CA No.819 of 2003 Vs. State rep. By The Inspector of Police, Subramaniapuram Police Station, Madurai City, Madurai Crime No.82 of 2001 .. Respondent in both the appeals These criminal appeals are preferred under Section 374 Cr.P.C against the judgment of the learned Additional District and Sessions Judge, FTC No.III, Madurai made in S.C.No.81 of 2002, dated 3.3.2003. !For Appellants ... Mr.P.Andiraj Amicus Curiae ^For Respondent ... Mr.P.N.Pandidurai, APP :COMMON JUDGMENT
(The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals, namely C.A.Nos.723 and 819 of 2003. The first one is brought forth by A-3 to A-6, while the second one is brought forth by A-4. It seems, challenging his conviction and sentence in the same judgment, A-4 has again preferred CA.No.819 of 2003.
2.The appellants have challenged the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.III, Madurai made in S.C.No.81 of 2002, whereby A-1 to A-5 stood charged under Sections 449, 302 r/w S.149, 396 r/w S.391 IPC and A-6 stood charged under Sections 302 r/w S.149, 396 r/w S.391 r/w S.149 IPC. On trial, A-1 to A-5 were found guilty for the offences under Sections 396 r/w S.391 and 449 IPC and A-6 was found guilty under Sections 396 r/w S.391 r/w S.149 IPC. A-1 to A-5 were sentenced to undergo life imprisonment and to pay a fine of Rs.2500/- each, in default to undergo one year SI under Section 396 r/w S.391 IPC and they were also sentenced to undergo one year RI and a fine of Rs.500/- each, in default to undergo 3 months SI under Section 449 IPC. A-6 was sentenced to undergo life imprisonment and to pay a fine of Rs.2500/-, in default to undergo one year SI for the offence under Section 396 r/w S.391 r/w S.149 IPC.
3.The short facts necessary for the disposal of these appeals can be stated thus:
a)P.W.1 is the resident of Alagappa Nagar, Madurai. P.W.2 is his daughter. The deceased Lakshmikantham is the wife of P.W.1. P.W.1 was running a factory at Kappalur and he used to leave for his work at about 9.30 a.m. and it is his usual practice to return back to home in between 7.30 p.m. and 8.00 p.m. On 2.2.2001, he left the factory and went to Kallikudi and came back to his factory at about 3.00 p.m. On the said date, P.W.2, who returned from school along with her young sister, after left her in tuition place, came back to home.
She found that the house kept opened. When she proceeded inside, she found her mother in a pool of blood and the wooden almirah was found opened and all the clothes and jewel boxes were scattered over the bed room. Being frightened, P.W.2 came out and reported the matter to P.W.3, a neighbour, who instructed P.W.2 to report the matter to P.W.1. P.W.2 telephoned him. On receiving the information, P.W.1 came home at about 4.30 p.m. and went inside the house and saw his wife in a pool of blood and all the jewels about 80 sovereigns and Rs.1,90,000/- cash were found stolen.
b)He rushed to the respondent police station and gave Ex.P.1, the complaint. On the strength of the same, a case came to be registered in Crime No.82 of 2001 under Sections 454, 380 and 302 IPC. Ex.P.21, the FIR was despatched to the Court. After registration of the case, investigation was done by P.Ws.27, 28 and 29. P.W.27 proceeded to the place of occurrence and made an inspection in the presence of the witnesses. He prepared Ex.P.23, the observation mahazar and Ex.P.24, the rough sketch. He recovered nylon rope and the water packet from the place of occurrence under a cover of mahazar. He conducted inquest on the dead body of the deceased and prepared Ex.P.22, the inquest report. The dead body of the deceased was sent for the purpose of autopsy to the hospital.
c)P.W.26, the Doctor, on receipt of the requisition, has conducted autopsy on the dead body of the deceased. He has issued Ex.P.19, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of ligature, strangulation and cut injury to the spinal cord. Pending investigation, on 16.9.2001, A-1, A-2, A-3, A-5 and A-6 were arrested. They gave confessional statements, which were recorded in the presence of the witnesses. The admissible part of the confessional statement of A-1 was marked as Ex.P.7 and insofar as A-2 is concerned, it was marked as Ex.P.5. Pursuant to the confessional statements, M.O.18, knife was recovered from A-2 under a cover of mahazar and from A-1 also M.O.19 knife was recovered under a cover of mahazar. A-3 gave a confessional statement, which was marked as Ex.P.29. Pursuant to the confessional statement, he took the Investigator to his house and produced a knife, which was recovered under a cover of mahazar. The confessional statement of the 5th accused was marked as Ex.P.28. Pursuant to the confessional statement, he took the Investigator and the witnesses and produced jewels which was in his possession. Following the same, on 9.10.2001, 4th accused was arrested. He volunteered to give a confessional statement, which was recorded in the presence of the witnesses and the admissible part of which was marked as Ex.P.30. Pursuant to the confessional statement, he took the Investigator to the house of one Ravikumar, P.W.18, from whom some jewels were recovered. A-1 also took the Investigator along with P.W.22 and the other witness. He showed P.W.17, Karupayee, from whom some jewels were recovered. The confessional statement of 6th accused was marked as Ex.P.27. An auto was seized from A-6 and the same was produced before the court. All the M.Os were sent to the Court and all the accused were sent for judicial remand.
d)Pending investigation, the Investigator recorded the statement of P.W.13, who is a tea stall owner, wherein he has stated that he saw all the accused assembled in front of his shop on 1.2.2001 at about 7.00 a.m. P.W.14, who is an another tea stall owner, was also examined and he has stated that he found all the accused assembled in front of his shop on 2.2.2001. Apart from that, P.W.15 has also deposed that he saw all the accused came out from the house, which is situated at Ayyanarpuram, which is situated near Alagappa Nagar. Their statements were also recorded and sent to the Court. The M.Os recovered from the place of occurrence and from the dead body of the deceased were sent for chemical analysis. Ex.P.17, the Serologist's report and Ex.P.18, the Chemical Analyst's report were received. On completion of the investigation, the Investigating Officer has filed the final report.
4.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has examined 29 witnesses and relied on 32 exhibits and 25 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial judge, after hearing the arguments advanced on either side and considering the materials available, was of the opinion that the prosecution has proved the case beyond reasonable doubt and found A-1 to A-5 guilty under Sections 396 r/w S.391 and 449 IPC and A-6 was found guilty under Sections 396 r/w S.391 r/w S.149 IPC and has awarded imprisonment as referred to above. Hence, these appeals at the instance of the appellants.
5.Advancing his argument on behalf of the appellants, the learned counsel, with vigour and vehemence, would submit that in the instant case, the prosecution had no direct evidence to offer, but it rested its case only on circumstantial evidence; that the prosecution has not proved necessary or sufficient circumstances either, or has proved any one of the circumstances connecting the accused with the crime; that the prosecution relied on the first circumstance that P.W.13, who is the tea stall owner, saw all the accused in front of his tea stall at about 7.00 a.m. on 1.2.2001; that the second circumstance is that P.W.14, another tea stall owner, which is situated near the place of occurrence, saw all the accused on 2.2.2001; that both the witnesses have turned hostile and thus, the presence of the accused near the area of the place of occurrence was not proved; that insofar as P.W.15 was concerned, he was examined to show that all the accused came out of the house on the date of occurrence; that it is pertinent to point out that the said house, from where all the accused came out, was situated at Ayynarpuram, but the scene of occurrence is Alaggappa Nagar and therefore, even assuming that the evidence of P.W.15 is true, it will not in any way connect the accused with the crime and that P.W.15 has also turned hostile.
6.Added further the learned counsel that the lower court found these accused/appellants guilty on the evidence adduced by the prosecution in respect of recovery; that in the instant case, P.W.17 was examined to the effect that she is a lady related to A-1 and that she has received the stolen properties from A-1 and they were recovered from her, pursuant to the confessional statement given by A-1; that she has turned hostile and thus, there is nothing to show that she received the stolen properties from A-1 as urged by the prosecution; that insofar as P.W.18 was concerned, according to the prosecution, the stolen properties were recovered from him, when he was identified by A-4; that P.W.18 has also turned hostile; that according to the prosecution, there was evidence of P.W.22, V.A.O., who has attested in all the confessional statements given by all the accused and also the recovery of jewels from different persons, namely P.Ws.17 and 18 and apart from that the recovery directly made from the accused. Added further the learned counsel that A-4 was arrested only on 9.10.2001, while the other accused were arrested on 16.9.2001; that the occurrence has taken place on 2.2.2001; that after a long period of 7 months, the accused were arrested; that in the instant case, according to the prosecution, all the accused gave confessional statements, which were recorded, pursuant to which, jewels, which were removed from the body of the deceased, were recovered; that it is true, P.W.1 had identified the jewels; that the accused have been arrested long after a period of 7 months from the time of occurrence; that the witnesses examined in respect of the alleged recovery, have turned hostile and under the circumstances, without any evidence whatsoever, the lower court has found them guilty and the judgment of the lower court has got to be set aside. Added further the learned counsel that in the instant case, there is no scope to draw a presumption under Section 114-A of the Evidence Act, since the recovery was not soon after the alleged dacoity and even the recovery has also not been proved and under these circumstances, the appellants are entitled for acquittal.
7.Heard the learned Additional Public Prosecutor on the above contentions.
8.The Court has paid its anxious consideration on the submissions made. It is not the fact in controversy that Lakshmikantham, the wife of P.W.1 was done to death in an incident that took place on 2.2.2001. It is a murder for gain. P.W.1 is the husband of the deceased and on the date of the occurrence, he left for his factory in the morning hours and only on information given by P.W.2, his daughter, he rushed home and found his wife in a pool of blood and he also found that the jewels worn by his wife and the jewels in his house were stolen. He gave a complaint to the respondent police station and a case came to be registered and the investigation was taken up. At the time when the case was registered, the identity of the assailants was not known, but pending investigation and recording the statements of the witnesses, the investigation gave a clue that these accused were involved. Pending investigation, they were all arrested. A-1, A-2, A-3, A-5 and A-6 were arrested on 16.9.2001 and A-4 was arrested on 9.10.2001. In the instant case, it is pertinent to point out that A-1 to A-5, at the time of arrest, came forward to give confessional statements, which were recorded in the presence of P.W.22, V.A.O. and another witness. P.W.22 has been examined. P.W.22, who is a Government Official, was neither inimical against the accused nor he was interested in the prosecution party. Pursuant to the confessional statements, the jewels were directly recovered from A-2, A-3, A-4 and A-5. Apart from that, pursuant to the confessional statement, weapons of crime were also produced by A-1, A-2 and A- 3, which were also recovered under a cover of mahazar. Following the same, A-1 took the Investigator along with the witnesses to P.W.17, a lady, who is related to A-1, from whom a part of subject matter of stolen properties were recovered under a cover of mahazar. Insofar as A-4 was concerned, he identified P.W.18, Ravikumar, from whom a part of subject matter of stolen properties were recovered. All the above facts have been categorically spoken to by P.W.22. It is true, P.Ws.16,17 and 18 have turned hostile. Insofar as the arrest, confessional statements, recovery from A-1 to A-5 are concerned, the evidence of P.W.22 would be suffice. It is pertinent to point out that all the jewels were identified by P.W.1. It is not the case of the accused that the stolen properties, which were produced before the court belonged to them and they have also not disputed the fact that the jewels belonged to P.W.1. Under these circumstances, the prosecution was able to prove that the jewels belonged to P.W.1 and they were also recovered either from the accused or from the persons, to whom, they have been handed over. Under these circumstances, the prosecution was able to prove the case to that extent.
9.In the face of the materials available, the Court is afraid whether the Court could find the accused/appellant guilty for murder for gain. In the instant case, the circumstantial evidence adduced by the prosecution through P.Ws.13,14 and 15 could not be relied on by the prosecution, since they have turned hostile. Insofar as A1 to A-5 is concerned, as to the question of causing murder, no evidence is available, though the prosecution was able to prove that she died in an incident of dacoity. Under these circumstances, the available evidence would be pointing to the fact that they were in possession of the property, connecting to the dacoity in question. But, they had no explanation at all as to how they came into possession of the property. Hence, though not they could be found guilty for the offence of murder for gain, they could be found guilty under Section 412 IPC. Considering the facts and circumstances in totality, the Court is of the considered opinion that awarding punishment of 10 years RI would meet the ends of justice.
10.Insofar as A-6 is concerned, the learned counsel brought to the notice of the Court that he is the Auto driver and there is no evidence connecting this accused with accused Nos.1 to 5 either, or he was involved in the case of dacoity. The Court is of the considered opinion that absolutely, there is no evidence insofar as A-6 is concerned and hence, he is entitled for acquittal of the charges.
11.In the result, the judgment of conviction and sentence imposed by the lower court on A-3, A-4 and A-5 is modified and instead, A-3, A-4 and A-5 are found guilty under Section 412 IPC and they are sentenced to undergo 10 years RI. The period of sentence already undergone by them is ordered to be given set off. The judgment of conviction and sentence imposed by the lower court on A-6 is set aside and he is acquitted of the charges levelled against him. The bail bond, if any executed by A-6, shall stand terminated and the fine amounts, if any paid by A-6, is ordered to be refunded to him. The direction given by the lower court for the return of the properties, namely M.Os.1 to 15, to P.W.1 is sustained.
12.With the above modification in conviction and sentence, C.A.No.723 of 2003 is partly allowed and C.A.No.819 of 2003 is dismissed.
13.Mr.P.Andiraj, Amicus Curiae counsel is entitled to get remuneration from the Legal Aid, Madurai.
vvk To
1.The Additional District & Sessions Judge, Fast Track Court No.III, Madurai.
2.The Inspector of Police, Subramaniapuram Police Station, Madurai City, Madurai.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.