Madras High Court
Palaniyandi Pillai, Srinivasan @ ... vs State By Inspector Of Police, Central ... on 24 November, 2003
Author: P. Sathasivam
Bench: P. Sathasivam
JUDGMENT M. Thanikachalam, J.
1. This judgment shall dispose of the above two appeals.
2. The accused 1 & 2 aggrieved by the conviction and sentence in S.C.No.72/95 on the file of the Principal Sessions Judge, Nagercoil, preferred criminal appeal No.960/95 and the third accused aggrieved by the conviction and sentence, preferred C.A.NO.76/96.
3. The respondent/complainant brought the accused/appellants, before the trial Court, to face the offence under Sections 120(B) r/w 302, 392, 302, 392, 201, 109, 414 I.P.C., contending that accused 1 & 2 having conspired with the third accused and one Kannan (since deceased) with an intention to commit murder of one Seetha Bai, since she refused to part away with her jewels, which were demanded by her brother-the first accused, on 29.5.92 at about 9.00 a.m., intentionally picked up quarrel with her, then by pushing her down, strangulated with a towel, thereby ending her life, that thereafter removed 41 sovereigns of gold jewels, worth about Rs.1,40,000/- from her body and decamped with jewels and that the accused are liable to be dealt with, under the penal provisions, aforementioned.
4. The accused/appellants when questioned about their involvement, as well as the charges framed against them, denied their involvement, pleading not guilty, thereby compelling the prosecution to make out a case, undoubtedly, by adducing unimpeachable evidence.
5. The prosecution in order to substantiate the offences reported against the accused/appellants examined as many as 28 witnesses seeking buttress from 29 exhibits and also strength from M.Os. 1 to 18.
6. The learned Principal Sessions Judge, Nagercoil, scanned the above materials, assessed the same, applying the law, which brought to surface, according to his conclusion, that the charges framed against them under Section 120(B) r/w 302 and 392 I.P.C. were not made out, that the offences reported against the third accused under Section 302 r/w 109 and 392 r/w 109 I.P.C. were not proved beyond all reasonable doubt. In this view, he gave the relief of acquittal, to accused 1 to 3. But, the evidence clinchingly proved, as per the conclusion of the Principal Sessions Judge, the offences reported against the first accused under Sections 302, 392 and 201 I.P.C., which resulted in conviction and sentence ordering to undergo the first accused, life imprisonment for 302 I.P.C., in addition to fine of Rs.1000/-, in default to undergo rigorous imprisonment of three months, six years R.I. for 392 I.P.C. and a fine of Rs.1000/-, in default three months further R.I.; for the offence under Section 201 I.P.C., three years R.I. and a fine of Rs.1000/-, in default three months R.I. In the same way, he slapped the conviction upon the second accused, for the offences under Sections 109 and 302 I.P.C. and sentenced him to undergo life imprisonment, and imposing a fine of Rs.1000/-, in default three months R.I. and for the offences under Sections 109 and 392 I.P.C., six years R.I. and a fine of Rs.1000/-, in default three months R.I., in addition to 3 years R.I. for 201 I.P.C., further imposing a fine of Rs.1000/- with usual default clause. The third accused appellant in C.A.No.76/96 was convicted and sentenced to undergo three years R.I. for the offence under Section 201 and a fine of Rs.1000/-, in default 3 months R.I. and three years R.I. for the offence under Section 414 I.P.C., in addition to imposing a fine of Rs.5000/-, in default to undergo six months R.I.
7. The accused/appellants, unable to digest the reasons assigned for their conviction, as well as the nature of conviction; questioning the wisdom of the learned session judge, have preferred these two appeals, independently, impugning the conviction and sentence before us.
8. The prosecution case seeking conviction in a nutshell:
(a) The appellants in 960/95, who are A1 and A2 in S.C.No.72/92, on the file of the Principal Sessions Court, Nagercoil are the father and son. It is stated, that the third accused, who is the appellant in C.A.No.76/96 and one Kannan (since died) are the close friends of A1 and A2. Tmt. Seethabai, the deceased in the incident, is the sister of the first accused and the aunt of the second accused. P.W.1 is the husband of the deceased and the brother in law of the first accused. Thiru Muthukumar (P.W.2) is the son of P.W.1, and the deceased and their daughter is Tmt. Selvi (P.W.3). They are all residing at Nagercoil.
(b) The first accused, in order to celebrate his daughter's marriage, requested his sister 20 soverigns of gold jewels. It seems, she had not complied with. Because of the non compliance of the demand made by the first accused brother, there was some friction in their relationship, which fact is known to P.W.3, on the information furnished by the deceased.
(c) The first accused celebrated the marriage of her daughter by name Kameshwari @ Uma Maheswari on 27.5.92. After the marriage, on 29.5.92, an arrangement was made in the house of the first accused, to receive the newly married couple and to host feast. At the request of the first accused, the deceased Seethabai-sister, went to the house of her brother A1 at about 9.00 a.m. The accused and one Kannan, having conspired to commit robbery, isolated Seethabai and thereafter, pushing her down, strangulated her using the towel, M.O.15. Ascertaining the death, they had removed the jewels worn by the deceased and they are M.Os.1 to 8. This incident was witnessed by P.Ws.4 & 5, on hearing the noise of the deceased.
(d) The death of Seethabai was informed by the second accused, to P.W.1, as if somebody had committed the murder and removed the jewels. Immediately, P.W.1 rushed to the house of A1 and before arrival, Seethabai was taken to the hospital, where she was attended by Dr. Surendran, P.W.26, who informed her death, under Ex.P.23.
(e) The first accused's son by name Nagamani, the second accused, preferred a complaint to the police on 29.5.92, at about 11.00 a.m. under Ex.P.24 and on that basis, a case was registered under Ex.P.25, in Cr.No.104/92 under Sections 302 and 392 I.P.C. Thiru Ponnusamy (P.W.27), the Inspector of Police, Nagercoil on receipt of Ex.P.24 registered a case and the printed F.I.R. was submitted to the Court. Thereafter, he went to the scene of crime at about 11.30 a.m., inspected the premises, prepared observation mahazar Ex.P.26, as well as sketch Ex.P.27. In continuation of the investigation, P.W.27 went to the hospital, conducted inquest in the presence of the panchayatdars and witnesses and the outcome is Ex.P.28. In order to ascertain the actual cause of death of Seethabai, the body was entrusted to P.W.25, who in turn identified the body, to the postmortem doctor, P.W.22.
(f) P.W.22 on receipt of Ex.P.14, requisition from the Inspector of Police, conducted autopsy over the body of Seethabai, on 29.5.92 at about 4.30 p.m. and noticed the following external injuries, as well as some internal injuries:
1. Band mark about 1" x 1/2" at the nape of neck over the back and about the middle in the front.
2. Nail mark about three in number at the left-side of neck in front.
3. Neck muscles lacerated on the right side. Intra muscular clots present.
4. Thyroid cartilage broken.
5. Abrasion about 1" x 1/2" on the right middle finger.
6. Contusion about 2" x 1" on the dorsum of the hand about the middle.
7. Contusion on the left fore arm about 2" x 1" about 1" about the wrist on the back side.
The above injuries and its effect brought to surface that the deceased would appear to have died of, asphyxia due to strangulation. Incorporating the injuries and the opinion, P.W.22 issued Ex.P.15, postmortem certificate.
(g) The Investigating Officer (P.W.27) once again went to the scene of crime on 30.5.92, wherefrom he recovered M.O.15 and M.O.16, in the presence of the witnesses under the cover of mahazar, Ex.P.29. Between 31.5.92 and 16.9.92, he had examined number of witnesses and recorded their statements and made arrangements, to record the statement of the witnesses, under Section 164 Cr.P.C. also. When he examined, Shanthi P.W.8, she handed over a torn letter, M.O.17. The letter, M.O.18, written by the first accused also reached the hands of the Investigating Officer. The effort taken by the investigating officer to fix the culprit at the first instance, proved to be futile.
(h) On 6.3.93, P.W.27 arrested the third accused and on examination, he confessed about this incident, giving a lead for further investigation. On the basis of the admissible portion of the confession statement, Ex.P.5, which was recorded in the presence of the witnesses, P.W.27 recovered M.O.3 from Raju (P.W.5) under the cover of Ex.P.6. On the same day, at about 3.00 p.m., on identification of P.W.17, by A3, he recovered M.O.6 to M.O.8 under the cover of Ex.P.7. Thereafter, at 4.00 p.m., on identification by the third accused, from P.W.18, the Inspector had recovered M.O.4 under Ex.P.8. Similarly, M.Os.2 & 5 were recovered from P.W.20 under the cover of mahazar, Ex.P.9. On the same day, at about 7.00 p.m., the third accused, identified the wife of Kannan, Lakshmi and from her, he recovered M.O.1 under Ex.P.11. After the recovery of the above said jewels, they were identified by P.W.1 and P.W.3, on 6.3.93. The further examination of the witnesses and the recovery of the above said jewels, from A3 on his confession, from various persons, revealed the fact that A3 along with Kannan conspired with A1 and A2, in order to commit robbery, and to commit the murder of Seethabai. On the basis of the materials collected by the investigating officer, P.W.28 laid the final report, which ended in conviction after a full-fledged trial as aforementioned, which is under challenge before us.
(i) The learned Principal Sessions Judge, accepting the oral evidence of P.W.3 as well as P.W.13, had come to the conclusion that the motive is established viz., demand of jewels by A1 and refusal of the same by the deceased. It is the further conclusion of the trial Court, believing the oral evidence of P.W.6 that A1 and A2 might have strangulated the deceased, thereby causing her death. Further, placing reliance upon M.Os.17 and 18, the trial Court came to the conclusion, that the involvement of the first accused is proved beyond all reasonable doubt. In addition, the finding is, on the basis of the confession given by the third accused, some of the jewels, belonged to the deceased were recovered from different persons, and this would indicate that the accused 1 & 2 must be the cause, for the disappearance of the jewels from the body of Seetha Bai, since the first accused had an eye over the jewels of the deceased. The learned trial judge, though concluded that the third accused has not abetted the crime or shared the common intention of A1 and A2, had come to the conclusion that he along with A1 and A2, caused disappearance of evidence of offence, with the intention of screening the offender, from legal punishment or with that intention gave information, which they knew or believed to be false. In this view, he had convicted all the accused under Section 201 I.P.C. It is the further conclusion of the trial judge, that the third accused joining hands with accused 1 & 2, participated in the crime, in one way or the other, thereby he landed himself within the meaning of "assisting in concealment of stolen property" and in this view, he convicted the third accused under Section 414 I.P.C.
9. Heard the learned counsel, Mr. Sriramulu, Senior Counsel and Mr. E. Anthony for the appellants and the learned Additional Public Prosecutor.
10. The learned counsel for the appellants submits that there is no direct evidence, connecting the accused with the crime and the admitted position being so, conviction of accused A1 and A2, is legally unsound, deserves to be erased. It is the further contention of the learned counsel for the appellants in C.A.No.960/95, that there is no legal evidence of any nature, to connect A1 and A2 and the admitted position being so, it is unfortunate that they have been convicted, and at least they should be fortunate, by an acquittal, in this Court. He points out further, that absolutely, there is no motive of any kind to commit murder of Seetha Bai, who is the sister of the first accused and the aunt of the second accused, who have no animosity of any kind, at any point of time. The further submission is, an attempt to prove motive also fizzled out and this fact was not taken into consideration by the learned Principal Sessions Judge, ending in an unlawful conviction, which should be erased.
11. The learned counsel for the appellant in C.A.No.76/96 would contend, that A3 has nothing to do with the crime and the case of the prosecution that some of the material objects were recovered on the basis of the confession said to have been given by him, is an imagination and to prove the same also, no cogent evidence is available and in this view, he also would submit that A3 is also entitled to an acquittal.
12. The learned Additional Public Prosecutor in opposing the above claim would contend, that there are acceptable materials to connect A1 and A2, coupled with motive, which are sufficient to sustain the conviction. It is the further contention of the learned Additional Public Prosecutor, that on the basis of the confession given by A3, the jewels belonged to the deceased were recovered, from the persons identified by A3, and they have no explanation to offer how they came to be in possession of those jewels, which belonged to the deceased and in this view, he would further urge, under Section 114 of the Indian Evidence Act, a presumption should be drawn, as if A3 would have received the stolen properties and in this view, the conviction slapped upon A3 must be indelible.
In order to appreciate the above rival contentions, we have to see the relationship between the parties, their status, the date of incident, as well as the date of marriage of the first accused's daughter.
13. Thiru Subramania Pillai, P.W.1, is a retired teacher. The first accused was working as an Assistant Executive Engineer, at the time of the incident. The deceased Seethabai is the only sister of A1. The father of the first accused is a retired Sub Registrar. It is admitted by P.W.1 himself, that both the family belong to respectable family. In his own words, "eh';fs; ft[utkhd FLk;gj;ij nrh;ejth;fs;/ Kjy; vjphpa[k; ft[utkhd FLk;gj;ij nrh;e;jth;////////// vd;Dila FLk;gj;jpdUk; Kjy; vjphpapd; FLk;gj;jpdUk; ey;y beU';fpa cwt[ Kiwapy; ,Ue;njhk;/ Kjy; vjphpapd; kfs; fhnk!;thpapd; jpUkzj;ij ehDk; vd; kidtpa[k; 27k; njjp Kd; epd;W elj;jpndhk;/ v';fs; Flk;gj;jpw;Fk; Kjy; vjphpapd; FLk;gj;jpdUf;Fk; mgpg;gpuha ngj';fs; fpilahJ....../@
14. Admittedly, the marriage of the daughter of the first accused, was celebrated on 27.5.92. It is admitted by P.W.2, son of the deceased, that her mother took the predominant role in performing the marriage of her brother's daughter. It is the further admission of P.W.2 "vd; mk;kh Kjy; vjphpaplk; ey;y rp;nefkhf ,Ue;jhh;fs;@/ No specific instances were brought to the notice of the court, regarding any friction, between the family at any point of time. From the above evidence, it is crystal clear, that there was no friction of any kind, between these two families and they were in absolute cordial terms, not entertaining any animosity, so as to say, that A1 might have went to the extent of murdering his own sister, that too, for jewels. The first accused was holding a respectable post and it is highly unimaginable to think that he would have murdered her sister, for gain of 22 soverigns of gold jewels, that too, conspiring with unknown persons, A3 and Kannan.
15. It is an admitted fact that the marriage of the first accused's daughter was celebrated on 27.5.1992. On 29.5.1992, a function was arranged to invite the newly married couple. For the purpose of entertaining them and to celebrate the function successfully, Seethabai was called, from her matrimonial home to the place of birth. Since, an auspicious function was fixed on 29.5.1992, many relatives would be attending and there would be continuous movements of people. Under these circumstances, if the accused 1 & 2 have conspired, not only to commit robbery, but also to commit the murder of the deceased, they would not have chosen the said date, place and time. It is beyond one's imagination even to conclude that the accused would have chosen 29.5.92, that too, early hours, for the purpose of committing this offence. This improbability and the artificial story, as rightly pointed out by the learned counsel for the appellants, prompt us to think unhesitatingly, that the incident would not have, had taken place, as narrated in the final report. It seems to us having regard to the facts and circumstances of the case, that the case was twisted and a false case, appears to have been foisted against A1 and A2, for which we find abundant evidence or in other words, we find NIL evidence, to rope in the accused as the culprits, under any of the penal sections.
16. Section 109 I.P.C. contemplates punishment for abetment if the act abetted is committed in consequence and where express provision is made for its punishment. Under this Section, the second accused is convicted, in addition to 302 and 392 I.P.C. as well as under Section 201 I.P.C. The first accused is convicted under Sections 302, 392 and 201 I.P.C. From the reading of the entire judgment of the trial Court, as rightly contended by the learned counsel for the appellants, we are unable to find out, any reasoning, on what basis, the learned trial Judge had come to the conclusion that the above offences were made out against A1 and A2. A cursory as well as deep reading of the judgment would show, that the entire findings were given only on the basis of the surmise, conjecture and on presumption, which is not contemplated under law. True, Section 114(a) of the Indian Evidence Act confers some power upon Court, to draw certain presumptions, in the absence of explanation by the accused, regarding certain facts viz., if a man is found to be in possession of stolen goods, either the thief, or he received the goods, knowing them as stolen, unless he accedes his possession. It is neither the case of the prosecution nor the finding of the trial Court, as seen from the judgment, that the stolen properties or robbed properties were recovered from accused 1 & 2 or at least, the sale proceeds of the stolen properties, if any, had been given to A1 and A2 and recovered. In the absence of any such case and evidence, it is unfortunate, that A1 and A2 were convicted, for the above said offences. Only on the basis, that the incident had taken place in the house of A1, the trial Court had concluded in paragraph 20, that there was no possibility for the intruder or third parties, to enter into the house of the first accused, and therefore, that kind of defence raised on behalf of the accused/appellants, would not deserve acceptance. It is not the acceptable case of the prosecution, that there was no possibility of third parties entering into the house of A1. The position being so, it is not known, under what circumstances, the learned trial Judge had drawn the inference, forgetting the fact, that the day was a special day, for receiving the married young couple, and there were opportunities for the outsiders to enter into the house, mingling with the relatives and it should be held, an unfortunate one, deserving no acceptance.
17. At any point of time, neither P.W.1 nor P.W.2 have suspected A1 and A2. On the basis of the complaint given by the second accused, when the body was sent for postmortem along with Ex.P.14 requisition, history of the case was attached by the Inspector of Police, wherein it is stated that some unknown culprits entered into the house, strangulated the lady to death, committed theft of jewels from her neck and hands, when she was sitting in the hall, while two young boys were sleeping in the adjacent bed room. If really, the motive alleged is true, certainly, P.W.3, the daughter of P.W.1, ought to have reported the same immediately, after the death and in that case, this kind of observation would not have come into existence, as submitted by the learned counsel for the appellants. History of the case, coupled with the non disclosure of motive, at the earliest point of time immediately to the incident, would indicate that after 4 or 5 months alone, the investigating agency or P.Ws.1 and 2 would have thought of A1 & A2, and implicated them as accused, for the reasons not disclosed, which we are unable to accept. P.W.3, though had stated, that Seetha Bai reported to her, one month prior to the incident, that the first accused requested her 20 soverign of gold jewels, it is not the case of P.W.3, that for non compliance, the first accused had grievance against Seetha Bai. It is the further case of P.W.3, that indeed the deceased was thinking to give some jewels, but failed to do so, apprehending some problems from her husband and children. This would indicate, even assuming that the accused had requested her sister, 20 soverigns of jewels, there was no strained relationship between the brother and the sister and therefore, this motive alleged is imaginary and flimsy and deserves outright rejection.
18. The learned Additional Public Prosecutor drew our attention to the evidence of P.W.13, to prove the motive. P.W.13 claims, that she was working as a servant maid, in the house of A1 and A2. She has further deposed, that when Seetha Bai used to come to the house of the first accused, the first accused requested her to give jewels, but Seetha Bai refused to part away with the jewels. Her evidence runs counter, to the evidence of P.W.3, thereby belying the oral testimony of P.W.13. It is elicited during cross examination, that she had the trouble from the police and the same was also reported by her, to the first accused, which would indicate that P.W.13 was compelled to give evidence against A1 and A2. The case spoken by P.W.13 was not informed to the investigating officer, which is also admitted by P.W.27. Thus, analysing the evidence of P.Ws.3 & 13, it is beyond one's comprehension, to conclude that there was a motive for the brother, to commit the murder of the sister, for gain. Unfortunately, without approaching the case, from proper perspective, the trial Court had committed an error, in concluding the motive is established, which we are unable to approve.
19. The learned counsel for the appellants/A1 & A2 took us, to the entire evidence of P.Ws.1 and 2, which would reveal the affection and the unstrained relation, between the deceased and the brother, failing to establish any animosity, even creating some doubt that the brother would have committed the murder of the deceased, for gain. Neither the father-P.W.1 nor the son P.W.2, has given, an iota of evidence about the alleged bad conduct of A1 and A2, so as to think that they might have gone to the extent of murdering Seetha Bai. It is admitted by P.W.2, that his mother was in good terms with the accused. Further, he fairly concedes that he did not know what is the reason for the incident. It is in evidence from the mouth of P.W.2, that her mother alone was in the front, in celebrating the marriage of her brother's daughter. It is the case of P.W.1 also, that the first accused's wife requested the presence of the deceased in her house, only to help his children. It is conceded by P.W.1 further, that there was not even misunderstanding between these two families. The admitted position being so, we are unable to think and imagine even, that the first accused would have committed the murder of her sister, abetted by his son namely, the second accused.
20. One Kuttikannan, P.W.6, who belongs to Puliyurkurichi, which is 8-1/2 kms from Nagercoil would state, that on 29.5.92, when he was proceeding to Nagercoil at about 8.30 a.m., towards Ramamurthi Hospital, he heard the noise from a house and on hearing the noise, many people from the road, ran into the house and along with them, he also ran into the house, in order to see what was happening. He further says, that he had noticed two persons strangulating a lady, by using a towel and informing further that among the two, one was Mr. Palaniyandi. He has further deposed, as if, both the accused have removed the jewels from the body of the lady. The artificial nature of the evidence given by P.W.6, which appears to be unadulterated, need not be elaborated and it is suffice by mere reading and also the date on which this witness was examined by the investigating officer. The incident had taken place on 29.5.1992 and this witness was examined on 21.1.1995, after the lapse of more than 30 months. It is not known, how he was spotted out, as an eye witness. If the case spoken by P.W.6 is to be accepted, then at least, the first accused should be a known person to him, which is not so. He is unable to say in which house, he heard the noise and saw the incident, through the window. According to him, many people entered, on hearing the noise and at that time alone, the two men were strangulating the lady. If that is so, what would be the natural conduct of the crowd, one has to imagine reasonably. In that case, they would have caught hold of the two persons, and handed over them to the police for appropriate action. It is the police, who took the pain of searching P.W.6, but have not taken the pain of examining the other persons, which would show, that this witness was introduced or planted by the police, only to connect the accused, if possible, with the incident. That is why, no identification parade was also conducted with the help of this witness, to identify A1 and A2 or A3, as the case may be.
21. Thiru Kumar, P.W.4, a driver by profession was examined, to connect the first accused with the incident. He failed to support the case of the prosecution, thereby received the name of the hostile witness. It seems, he was examined by the Judicial Magistrate and recorded a statement under Section 164 Cr.P.C. The said statement is also not marked, by examining the concerned Magistrate. He admits during the cross examination, that he was confined in the police station, for some time and compelled to give evidence, as instructed and fearing, he has given the statement before the Magistrate. Therefore, the oral evidence of P.W.4 also should fail, to fix either A1 or A2 as the person, involved in the incident. Though, it is stated, many jewels were recovered, on the basis of the confession given by A3, it is not the case of the prosecution, that any of the jewels were recovered from any one of the accused 1 & 2. Thus, practically, there is NIL evidence, in this case, as far as A1 and A2 are concerned, and unfortunately they are convicted for the grave offence, which requires setting aside.
22. None of the witnesses examined on the side of the prosecution, had spoken anything against A1 and A2, connecting with the crime said to have been committed by them, whether it is acceptable or not. Since the witnesses have failed to implicate the accused, P.W.27 sought to implicate these two, on the basis of M.O.17 and M.O.18, which were discussed by the learned trial Judge in paragraph 22 of his judgment. M.O.17 is a torn letter, said to have been handed over by P.W.8, to P.W.27 during the course of the investigation. Generally, when a document of this nature or any material objects are seized or recovered, it is the practice of the investigating agency, to prepare mahazar and seize the same, in the presence of reliable witnesses. But curiously, P.W.27 has not prepared such an usual mahazar while recovering M.O.17 from P.W.8. P.W.8 is the niece of the deceased Seetha Bai. She was not very much attached to A1 and A2. In this view, if the letter had been recovered from P.W.8, nothing would have prevented her, from giving evidence to that effect, before the Court. Unfortunately, P.W.8 turned hostile, disowning the alleged handing over of this letter to P.W.27. Hence, relying on M.O.17, fixing A1 and A2, as the accused involved in this crime, is beyond the recognition of law. Even assuming M.O.17 was handed over by P.W.8, to P.W.27, there is nothing on record to show that this letter was written by the first accused, confessing the crime. As aforementioned, the first accused was working as an Assistant Executive Engineer and the second accused also appears to be educated. The position being so, if a question is posed, whether A1 would have written M.O.17 confessing the crime, the answer unhesitatingly should be "no". Therefore, the averments said to have contained in this letter, with reference to some jewels and its melting would not support the prosecution. It is not the case of the prosecution, that the robbers have melted the jewels and made it ingot, thereby destroying its identity. It is the case of the prosecution that the jewels were recovered intact on the confession of A3, which we will discuss infra. Therefore, if M.O.17 is to be accepted, it must be explained, how the ingot became jewels, as if they were originally removed from Seetha Bai. In this view also, M.O.17 loses its importance, though much weight is attached by the prosecution, which is unfortunately, relied upon by the trial Court.
23. M.O.18 is the letter said to have been written by the first accused to the investigating officer, which is denied. It is also denied by the first accused, that for M.O.17, he is not the author. Unless, it is established that M.O.18 does contain the signature or hand writing of the first accused, question of comparing the same with M.O.17, hand writing, would not arise for consideration, for connecting the accused with the crime. Except the interested investigating officer's oral testimony, to conclude M.O.18 emanated from the first accused, there is no other material. It is said, that M.O.18 reached the investigating officer, in a postal cover. If so, that cover must be the best evidence. But for the reasons best known to P.W.27, it was suppressed. The hand writing expert, who has given opinion, Ex.P.2, is also not examined and it may not serve any useful purpose also. Comparison of the hand writing alone, could not be the best possible evidence, to fix one's culpability, unless it is supported by other materials. Hence the conclusion of the learned trial Judge that M.Os.17 and 18, letters were written, by the same person, would lead to the inference, impliedly, is unwarranted.
24. The conclusion of the trial judge that the oral evidence of P.Ws.1, 2, 3, 6 & 13 would establish the fact that Seetha Bai was strangulated by using M.O.15 is baseless, since there is no iota of evidence for the affirmation of the same. It is not the case of P.W.27 that some of the jewels belonged to Seetha Bai were recovered from A1 or A2, at least, on the basis of the confession statement given by A3. Therefore, for the murder of Seetha Bai, holding the first accused directly under Section 302 I.P.C., is beyond our imagination and in this view, we find that the guilt against the first accused under Section 302 I.P.C., is not at all proved.
25. The second accused is roped in under Section 109 I.P.C. Section 109 though directs the Courts to punish a person, as abettor, if the act abetted by him is committed in consequence of the abetment; there is nothing on record to show, that A2 had involved in abetting the offence, except the fact that he is the son of A1, who was also living in the same house, on the date of the alleged incident. He alone has reported, at the first instance not only to P.W.1, but also to the police. It is not the case of the prosecution, that he absconded from the scene of crime, thereby creating some doubt or something like that.
26. Section 392 I.P.C. would be available to the prosecution when robbery is proved as contemplated under Section 390 I.P.C. followed by 392 I.P.C. Even the witness-P.W.6, who was examined after 2 1/2 years, has also failed to say that he had seen the second accused along with the first accused, while the strangulation had taken place. It is not the case of any of the witnesses, that the second accused also removed jewels or it is not the case of the prosecution that some of the jewels were recovered from A2, thereby indirectly implicating, him with the robbery. In this view, we are of the considered opinion, that the trial Court has not properly considered the facts and circumstances of the case, coupled with law, thereby the learned trial Judge landed himself in an erroneous conclusion, convicting A1 and A2 and the conviction has to be erased, by all means.
27. The accused/appellants are convicted under Section 201 I.P.C. also. The punishment would be warranted under this section, if any person knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening an offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false. Here, it is the case of the prosecution that all the three have committed the offence and therefore, the concealment of the jewels if true would not come within the meaning of "screening offender from legal punishment". In fact some of the stolen properties were recovered, on the basis of the confession given by the third accused. Therefore, the ingredients required for Section 201 I.P.C. are absolutely absent and the learned Sessions Judge, in our considered opinion, has not applied his mind while punishing the accused under Section 201 I.P.C. Since, in our opinion, these accused/appellants have not screened the offender from legal punishment or gave any false information, suppressing the materials, question of punishment under Section 201 I.P.C., does not arise for consideration. Hence, the punishment slapped upon all the accused by the trial Court under Section 201 I.P.C. should go.
28.The appellant in C.A.NO.76/96, who is the third accused is dealt with under Section 414 of I.P.C. 414 I.P.C. would be attracted, if anybody assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property. According to the prosecution, M.Os.1 to 8 belonged to the deceased Seetha Bai. P.Ws.1 and 2 have identified these jewels so. The identification and the ownership claimed in favour of Seetha bai are not challenged, as seen from the cross examination. In this view, we find no difficulty in concluding that M.Os.1 to 8 belonged to the deceased Seetha Bai. P.W.27, would state that he arrested the third accused at about 11.00 a.m. on 6.3.93, in the presence of Maharaja Pillai (P.W.14) and another, at Kottaru Traffic Point near Xavier Church. It is pointed out that he had given a confession statement, disclosing the whereabouts of the jewels under Ex.P.5. On the basis of Ex.P5, the third accused took the Investigating Officer and P.W.14 to one Raju, P.W.15 wherefrom, M.O.3 was recovered under Ex.P.6. Thereafter, at about 3.00 p.m., the third accused took the Investigating Officer to the shop of P.W.17, where, M.Os.6 to 8 were recovered under Ex.P7. Thereafter, at about 4.00 p.m. A3, P.W.14 and P.W.27 went to the place of Nagarajan and from him M.O.4 was recovered under Ex.P.8. In the same manner from Subramaniam (P.W.20), M.O.2 and M.O.5 were recovered under Ex.P.9. At about 6.00 p.m., from P.W.21, according to P.W.27, on identification by A3, M.O.3 (Kfg;g[) was recovered under Ex.P.10. One of the assailants by name Kannan appears to have played key role. From the wife of Kannan viz., Lakshmi, M.O.1 was recovered under Ex.P.11. When P.Ws.15 and 27 have spoken about the confession statement given by A3, followed by the recovery, on his disclosure, nothing is materially elicited to erase the effective evidence given, during the examination in chief. A3 has not given any explanation also, as to how he was able to identify the person and how the jewels belonged to Seetha Bai were recovered from various persons, on his confession, etc.
29. The learned counsel for the third accused would submit, that the accused was taken into illegal custody by the police and keeping him in custody, they have tortured him also, so as to confess. By giving some confession, property will not be made available. Here convincingly and inspiringly, it is proved that only on the basis of the confession and identification of this accused, properties belonged to the deceased Seetha Bai were recovered from various persons. Therefore, the alleged illegal detention and the fact as evidenced by D.W.1 that the police have failed to open the lock up room, when the Commissioner had visited the police station, certainly would not nullify the confession or recovery. On the basis of Ex.D1 & D2, we are unable to say, emphatically that the third accused was taken into an illegal custody and confession statement was extracted. If no recovery is made, only confession statement is to be relied upon, then there would be some force in the contention. Here, on the basis of the confession, material objects viz., 1 to 8 were recovered intact, as identified by the owners and therefore, we conclude, on the basis of the confession statement given by A3, the properties were recovered. It is not the case of the prosecution directly, that this accused had actually participated in the robbery and no charge is also framed against this accused directly, except an attempt is made to rope in under Section 120(b) I.P.C., which is not proved. The recovery makes it abundantly clear, that this appellant might have received the stolen properties from Kannan, since he had no explanation to offer, how he came to be in possession of these properties, at some point of time and how he identified the persons, who were in possession of the properties, belonged to Seetha Bai. In this view, the trial Court has found him guilty under Section 414 I.P.C. and in our view also, for the reasons assigned supra, the third accused appellant in C.A.No.76/96 is liable to be convicted under Section 414 I.P.C. alone and this part of the conviction has to be confirmed.
30. For the foregoing reasons, viewing the case from all possible and probable angles, we are of the considered opinion, that the charges against A1 under Sections 302, 392, 201 I.P.C and the charges against A2 under Section 109 and 302, 109 and 392, 201 I.P.C and the charge against the third accused under Section 201 I.P.C are not at all proved beyond all reasonable doubt, and the conviction slapped by the trial Court for these offences should be set aside. As far as the conviction and sentence under Section 414 I.P.C against the third accused is concerned, it is to be confirmed.
31. In the result, the appeal in C.A.No.960/95 is allowed and the conviction and sentence imposed on A1 and A2 under Sections 302, 392, 201; 109 and 302, 392, 201 I.P.C. respectively are all set aside and the conviction and sentence against A3 under Section 201 I.P.C. alone are set aside. The fine amount paid by the accused 1 to 3 for the above said offences are ordered to be refunded. The bonds executed by A1, A2 if any, shall stand discharged.
32. The conviction and sentence slapped against the appellant in C.A.No.76/96 under Section 414 I.P.C. are confirmed. The trial Court is directed to take steps to secure the third accused, who is on bail, to undergo the remaining period of sentence.