Madras High Court
Hameem vs State By on 2 August, 2010
Author: M.Chockalingam
Bench: M.Chockalingam, M.Duraiswamy
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/08/2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.DURAISWAMY Criminal Appeal (MD) No.117 of 2010 Hameem ... Appellant Vs. State by The Deputy Superintendent of Police, Thanjavur South Police Station, Thanjavur, Thanjavur District. ... Respondent Criminal Appeal filed under Section 374 of Cr.P.C. against the judgment of the Additional Sessions Judge / Essential Commodities Act Special Judge, Thanjavur in S.C. No.499 of 2008 dated 16.12.2009. !For Appellant ... Mr.D.Selvanayagam ^For Respondent ... Mr.Samuel Raj, Addl. Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenging a judgment of the Additional Sessions Judge / Essential Commodities Act Special Judge, Thanjavur in S.C.No.499 of 2008 dated 16.12.2009, whereby the appellant / first accused stood charged, tried, found guilty and awarded punishments as under, the present Criminal Appeal has been filed.
Accused Charges Finding Punishment
under Section
A1 420 IPC Not found guilty -
A1 120-B IPC Found guilty A1 was sentenced to undergo 7 years
R.I. and to pay a fine of Rs.1000/- in
default to undergo 1 year R.I.
A1 302 IPC Found guilty A1 was sentenced to undergo life
imprisonment and to pay a fine of
Rs.1000/- in
default to undergo 1 year R.I.
A1 380 IPC Found guilty A1 was sentenced to undergo 2 years R.I.
and to pay a fine of Rs.1000/- in
default to undergo 1 year R.I.
A1 302 r/w 201 IPC Found guilty A1 was sentenced to undergo 7 years R.I.
under Section and to pay a fine of Rs.1000/- in
201r/w 302 IPC default to undergo 1 year R.I.
2. Originally, there were two accused in this case, namely, the appellant and one Indira @ Ameena Beevi. Pending the investigation, the second accused died. Therefore, the Trial Court recorded a finding that the charges framed against her stand abated, and proceeded with the trial against the appellant / first accused.
3. The short facts that are necessary for the disposal of this appeal can be stated thus:-
a) P.W.1-Swaminathan is the husband of the deceased-Visalakshi. They were residing at 6th Cross Street, LIC Colony. P.W.1 was employed in a hospital at Tiruvarur, during the relevant time. He used to visit his wife fort-night once.
The deceased was doing money-lending business. The first accused-Hameem is the husband of the second accused-Indira @ Ameena Beevi. The accused have borrowed a sum of Rs.2,50,000/- from the deceased on executing promissory notes and also issuing post-dated cheques. This transaction was not known to P.W.1. On the date of occurrence, that was on 03.08.2004, P.W.5-Auto driver took the deceased in his auto to the house of the accused and dropped her. P.W.6, who was employed under the accused, found the deceased in the company of the accused, on that day during day hours. On the night hours of 03.08.2004, P.W.8-Van driver was engaged by A1 and A2 to take them to Karur. After engaging the van, they took 2 Nos. of trunk boxes and also took their children. When the van was just crossing a bridge near Pettavaithalai, A1 made a request to P.W.8 to stop the van, since his wife-A2 was to attend the nature's call. Thereafter the van was stopped and after ten minutes, they boarded the van and they informed that they have got some work at Coimbatore and hence they wanted to get down from the van.
b) P.W.1 phoned up to his wife on the night hours of 03.08.2004. There was no reply and the phone call was not attended. He also phoned up to his house on 04.08.2004 both in the morning and night hours. Since the phone calls were not attended, on 05.08.2004, he informed his friend Ravi to go to his house and verify. On 07.08.2004, P.W.3-Narasimma, who was residing in the neighbouring house, found certain utensils remained uncleaned on the backyard of the house of the deceased. Therefore, he phoned over to P.W.1 and informed the same. P.W.1, thereafter, came to his house which was locked. He proceeded to Thanjavur South Police Station, where P.W.2-Head Constable, was on duty. P.W.1 gave a complaint to P.W.2 at about 22.15 hours on 07.08.2004 and the same has been marked as Ex.P1. On the strength of Ex.P1, a case came to be registered in Crime No.218 of 2004 for "women missing" and Ex.P2-F.I.R. was prepared and sent to the Court.
c) P.W.14 was working as Village Administrative Officer (VAO) at Pettavaithalai at the relevant time. On 05.08.2004, he was informed by his Assistants that a dead body of a female was lying in a field near the bridge at Pettavaithalai. Based on the same, P.W.14 went to the place where the dead body was found and prepared Ex.P9-Report and gave the same to Pettavaithalai Police Station, on the strength of which, a case came to be registered in Crime No.333 of 2004 under Section 174 of the Code. Ex.P5-Express F.I.R. was despatched to the Court.
d) P.W.26, who was the Inspector of Police, Jeeyapuram Police Station, at that time, on receipt of a copy of F.I.R., proceeded to the spot, made an inspection and prepared Ex.P10-Observation Mahazar and also Ex.P20-Rough Sketch. He also recovered ordinary earth from the spot under a cover of Ex.P11-Seizure Mahazar. On instructions from P.W.28, P.W.12-Circle Inspector of Police, Jeeyapuram Police Station conducted inquest over the dead body of the deceased and prepared Ex.P6-Inquest Report. He sent the dead body to the Government Hospital, Trichirapalli for conducting autopsy under a requisition marked as Ex.P7.
e) P.W.36-the Doctor attached to the Government Hospital, Trichirapalli, conducted autopsy on the body of the deceased and gave his opinion under Ex.P30- Post Mortem Certificate, that the death of the deceased was due to asphyxia due to smothering. Thereafter, P.W.37-Inspector of Police, Jeeyapuram Police Station, filed final report under Ex.P33, since the case could not be detected.
f) While the matter stood thus, P.W.38-Deputy Superintendent of Police, Thanjavur took up the matter for investigation on 20.01.2007. He sent the photograph of the deceased to the Forensic Science Department and thereafter, a report was received from the Department stating that a Superimposition Test was conducted in which the skull of the dead body received in respect of Crime No.333 of 2004 tallies with that of the photograph sent by P.W.38. On coming to know about this, P.W.38 enquired the witnesses and altered the case to Section 302 IPC. He proceeded to the house of the deceased and prepared Ex.P34-Rough Sketch. On 17.05.2007 he arrested the first accused. The first accused came forward to give a confessional statement. Ex.P35 is the admissible portion of the confessional statement of the first accused. On the basis of the confessional statement given by the first accused, P.W.38 went to a house which was shown by the first accused, and prepared Ex.P26-Observation Mahazar and Exs.P36 and P37-Rough sketches. Then he recorded the statement of the van driver. Thereafter, he recovered M.O.1-Van in the presence of witnesses. Thereafter, the first accused took the police party to P.Ws.25 and 28 from whom M.O.1-Gold chain with dollar, was recovered under a cover of Ex.P28-Seizure Mahazar. Ex.P19-Pledge receipt was also recovered thereafter. Ex.P29-Cheques were also recovered under a cover of Ex.P27-Seizure Mahazar.
g) P.W.7 in his evidence has stated that the second accused gave a confessional statement to him on 30.12.2005 that on 03.08.2004, she joined with her husband and caused the death of the deceased by pressing a pillow on the face of the deceased and then put the dead body in a suit case and took it in an omni van and dropped the same on the Karur Road.
h) After completion of the investigation, on 03.08.2007, P.W.38 filed the charge sheet as against the first accused before the concerned court, which in turn committed the case to the Court of sessions and necessary charges were framed.
i) In order to substantiate the charges, at the time of trial, the prosecution examined 38 witnesses and relied on 38 exhibits and 4 material objects. On the side of the defence, D.W.1 and D.W.2 were examined and Ex.D1 to D3 were marked. On completion of the evidence adduced on the side of the prosecution, the first accused was questioned under Section 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. He denied them as false. After hearing the arguments of the counsel and looking into the available materials, the Trial Court took the view that the prosecution has proved the case beyond reasonable doubt, and awarded the punishments as referred to above. Hence, this Criminal Appeal at the instance of the first accused / appellant.
4. Advancing the arguments on behalf of the first accused / appellant, the learned counsel would submit that in the instant case, according to the prosecution, the occurrence has taken place during noon hours of 03.08.2004, pursuant to a conspiracy hatched up by A1 and A2 to do away with the deceased, and after causing the death of the deceased, they took the dead body in the van of P.W.8, left the same in a field within the jurisdiction of the Jeeyapuram Police Station, Tiruchirapalli, escaped from the place and also screened the evidence, but in order to substantiate any one of the charges levelled against the first accused / appellant, the prosecution had no direct evidence to offer. It relied only on circumstantial evidence. The occurrence has taken place on 03.08.2004. Originally the case was registered for "woman missing" in Thanjavur South Police Station, and when the dead body was found, a case was registered by the Pettavaithalai Police under Section 174 IPC and thereafter the post mortem of the dead body was conducted and it was found to be one of murder and accordingly it was altered to Section 302 IPC.
5. Learned counsel for the first accused / appellant would add that P.W.37-Inspector of Police, Jeeyapuram Police Station, took up original investigation and since the persons involved in the occurrence could not be detected, he filed a report. Thereafter, P.W.38-Deputy Superintendent of Police, Thanjavur has taken up investigation and recorded the evidence of P.Ws.5, 6, 7 and 8 as witnesses. The learned counsel would further add that the circumstances relied on by the prosecution were attempted to be established by the evidence of these witnesses.
6. Learned counsel for the first accused / appellant would further add that the occurrence has taken place on 03.08.2004. P.W.5 would claim that it was he who took the deceased in his auto from her house to the house of the deceased. P.W.6 would claim that she saw the deceased in the house of the accused on the date of occurrence i.e. 03.08.2004. But according to the counsel, the 161 statements of P.Ws.5 and 6 were recorded on 05.06.2007 and 18.05.2007 respectively, and till that time, they were keeping silent and they did not speak about anybody. Further, though the statements were recorded by the Investigating Officer on the abovesaid dates, i.e. in the month of May and June 2007 respectively, they reached the Court only on 04.02.2008. Therefore, according to the counsel, the evidence of P.Ws.5 and 6 have lost its evidentiary value.
7. Added further the learned counsel for the first accused / appellant that in the instant case, insofar as P.W.8-Van driver is concerned, according to him, both A1 and A2 travelled in his van along with the trunk boxes, but he did not say anywhere in his evidence that he has seen the dead body of the deceased or the place where the trunk boxes were actually dropped. His statement was also recorded in the year 2007, but it reached the Court only on 04.02.2008, after a long lapse of time. Apart from that, it is highly doubtful whether he was the owner of the vehicle which he drove during the relevant time.
8. Learned counsel for the first accused / appellant would attack the alleged extra judicial confession alleged to have been given by A2 to her brother P.W.7. According to P.W.7, A2 gave the extra judicial confession to him on 30.12.2005, i.e. after 1 year and 4 months after the occurrence, which would be clearly indicative of the fact that when such an occurrence has taken place on 03.08.2004 itself, the silence on the part of P.W.7 for nearly 16 months, would cast a doubt on his evidence, and it also indicates that such a statement was subsequently developed in order to suit the prosecution case as if there was an extra judicial confession given by A2.
9. Added further the learned counsel for the first accused / appellant that insofar as M.O.1-Gold chain with dollar, is concerned, there are lot of discrepancies in the description of the item originally alleged to have been recovered from P.Ws.25 and 28 based on the confessional statement of A1, and the description in the Seizure Mahazar. Apart from that, the recovery is not proved in the manner known to law.
10. Learned counsel for the first accused / appellant would further submit that P.Ws.4 and 5 have categorically denied that they have attested the documents which were shown to them by the Investigating Officer, and the prosecution has no direct evidence to offer. In the circumstances, the Trial Judge has taken an erroneous view in convicting the first accused / appellant. Therefore, the first accused /appellant is entitled for acquittal in the hands of this Court.
11. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and also scrutinised the materials available.
12. It is not in controversy that the dead body of one Visalakshi, the wife of P.W.1 was found in a field, within the jurisdiction of the Jeeyapuram Police Station, Tiruchirapalli and a case was originally registered under Section 174 IPC and subsequently, it was altered to Section 302 IPC after receipt of the Post Mortem Certificate that she died out of asphyxia due to smothering. The identity of the deceased and cause of death of the deceased were not disputed by the first accused / appellant before the Trial Court and hence the Trial Court had no legal impediment in recording so. Apart from that, the prosecution was able to prove that it was the dead body of Visalakshi and that she died out of asphyxia due to smothering.
13. In order to substantiate the charges levelled against the first accused / appellant, the prosecution has no direct evidence to offer. It relied only on certain circumstances, which can be stated as under:-
a) The evidence of P.W.5 who claimed that he took the deceased to the house of the accused on the date of occurrence, i.e. 03.08.2004.
b) The evidence of P.W.6 that she was the employee of the accused during the relevant time and that she found the deceased in the company of the accused on the date of occurrence, i.e. 03.08.2004.
c) Extra judicial confession alleged to have been given by the second accused to her brother P.W.7 that she joined with her husband in causing the death of the deceased.
d) The arrest of A1, the confessional statement recorded from A1 and the recovery of M.O.1.
14. It is true that the prosecution relied on the above four circumstances. After a thorough scrutiny of the above circumstances relied on by the prosecution, this Court is of the considered view that it can be well stated that the prosecution has miserably failed to prove its case in respect of conspiracy, incident of murder and also screening of evidence. According to the prosecution, the occurrence has taken place in the noon hours of 03.08.2004, i.e. 3.00 p.m. P.W.5 would claim that he took the deceased to the house of the accused on that day. Equally P.W.6 would claim that she has seen the deceased in the company of the accused. Unfortunately, the statements of those witnesses were recorded only on 05.06.2007 and 18.05.2007 respectively, i.e. in an interval of about 3 years after the occurrence. But neither P.W.5 nor P.W.6 has whispered anything for nearly 3 years. Equally, P.W.8-Van driver would claim that he was the mini van owner and it was he who took A1 and A2 along with two suitcases in his vehicle and it was stopped near a bridge at Pettavaithalai and after ten minutes they took the vehicle. The statement of P.W.8 that he was the owner of the van is doubtful.
15. P.Ws.5, 6 and 8 have given 161 statements only in the months of May and June 2007 respectively, but they reached the Court only in the month of February 2008 and those witnesses have also kept silent for such a long time. The silence on the part of P.Ws.5, 6 and 8 for nearly 3 years is unnatural and it casts a doubt about their versions. The investigator would claim that their statements have been recorded in the months of May and June 2007 respectively, but no explanation has been put forth by the Investigator as to why those statements were sent to the Court in the month of February 2008 after a long delay, and hence, no credence could be attached to the testimonies of those witnesses.
16. The extra judicial confession relied on by the prosecution and accepted by the Trial Court is also thoroughly unnatural, because, P.W.7 would claim that he is the brother of A2, and A2 gave a confessional statement to him on 30.12.2005 that she joined her husband in causing the death of the deceased. Evidence of P.W.7 as to the alleged confessional statement cannot be accepted for two reasons. Firstly, the alleged confessional statement was given by the second accused after a long period of 1 year and 4 months. Secondly, though the statement of P.W.7 was recorded in the month of June 2007, it reached the Court only in the year 2008. It is highly artificial whether the second accused had given such a statement to P.W.7 after a lapse of 16 months and even if it is assumed that the second accused gave the confessional statement after a long lapse of time, the attitude on the part of P.W.7 in keeping mum for a long time thereafter, would cast a doubt about his evidence. Thus, the extra-judicial confession alleged to have been given by the second accused cannot also be relied upon. If that part of the evidence is rejected, the charges of conspiracy, murder and screening of evidence cannot be said to be proper in the manner known to law. Under the circumstances, the Trial Judge should have rejected that part of the case.
17. Insofar as the recovery is concerned, the prosecution has examined P.W.1 who has categorically identified M.O.1-Gold chain with dollar, and he admitted that it belonged to his wife. P.Ws.25 and 28, who are the Pawn Brokers, were examined, and Ex.P19-Pledge receipt has been recovered and it has been proved. The evidence on record would clearly indicate that P.W.1 had clearly admitted that M.O.1 recovered belonged to his wife, the deceased. The first accused / appellant had also no explanation to offer as to how he came into the custody of the said jewel. Though the prosecution had no evidence to offer in respect of conspiracy, murder and screening of evidence, the Court is satisfied that it is a case where an inference can be drawn that it was the first accused / appellant who was in custody of the jewel.
18. In view of all the above reasons, this Court is of the considered opinion that convicting the first accused / appellant under Section 411 IPC and awarding 3 years R.I. as maximum punishment, would meet the ends of justice. Accordingly, the conviction and sentences imposed by the Trial Court on the first accused / appellant are set aside, and instead, he is convicted only under Section 411 IPC and he is directed to suffer three years Rigorous Imprisonment. The imprisonment already undergone by the first accused / first appellant shall be given set off. The fine amounts if any paid by him shall be refunded to him.
19. In the result, the Criminal Appeal is accordingly, disposed of.
KM To
1.The Additional Sessions Judge / Essential Commodities Act Special Judge, Thanjavur.
2.The Deputy Superintendent of Police, Thanjavur South Police Station, Thanjavur, Thanjavur District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.