Madras High Court
Selvam vs State By on 2 March, 2016
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS Judgement Reserved on : 08..02..2016 Judgement Pronounced on : 02..03..2016 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN AND THE HONOURABLE MR.JUSTICE S.NAGAMUTHU Referred Trial No.2 of 2015 and Criminal Appeal No.409 of 2015 Referred Trial No.2 of 2015 Selvam ... Accused Versus State by Inspector of Police, Saravanampatti Police Station, Coimbatore. [Crime No.373 of 2014] ... Complainant Referred Trial under Section 366 of the Code of Criminal Procedure, 1973 on the judgement of the learned Sessions Judge, Magalir Neethimandram, Coimbatore, in S.C.No.126 of 2014 dated 17.03.2015. Crl.A.No.409 of 2015:- Selvam ... Appellant/Accused -Versus- State by Inspector of Police, Saravanampatti Police Station, Coimbatore. [Crime No.373 of 2014] ... Respondent/Complainant Crl.A.No.409 of 2015:- Appeal filed under Section 374(2) of the Code of Criminal Procedure against the conviction and sentence passed by the learned Sessions Judge, Magalir Neethimandram, Coimbatore, in S.C.No.409 of 2015 dated 17.03.2015. For Appellant /Accused : Mr.N.Ponraj For Respondent/ Complainant : Mr.S.Shanmugavelayutham,State Public Prosecutor COMMON JUDGEMENT [Judgment of the court was delivered by S.NAGAMUTHU.J.,] The Sessions Judge, Magalir Neethimandram, Coimbatore, by judgement dated 17.03.2015 in S.C.No.126 of 2014, has convicted the appellant/accused for the offences under Sections 449, 302 (Three Counts) IPC and 404 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for six months for the offence under Section 449 of IPC; to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for six months for the offence under Section 302 of IPC (First count); death penalty and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for six months for the offence under Section 302 of IPC (Second count); death penalty and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for six months for the offence under Section 302 of IPC (Third count) and to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for six months for the offence under Section 404 of IPC. The trial court has further directed that the appellant shall undergo these substantive sentences of imprisonment concurrently. The trial court has submitted the proceedings to this court under Section 366 of the Code of Criminal Procedure, 1973, for confirmation of the death sentence. That is how, the Referred Trial No.2 of 2015 is before this court. The convict - Mr.Senthil has filed Crl.A.No.409 of 2015 challenging the said conviction and sentence. 2. The case of the prosecution in brief is as follows:- It is alleged that the accused has committed murders of three persons, by name, Mrs.Vatchaladevi [hereinafter referred to as "D1"]; Mr.Makilan [hereinafter referred to as "D2" ]; and Mr.Praneeth [hereinafter referred to as "D3"]. P.W.1 is the mother of D1 and the grandmother of D2 and D3. P.W.6 is the husband of D1 and the father of D2 and D3. D2 and D3 were male children aged 6 years and 11 months respectively. D1 to D3 were residing with P.W.1 and P.W.6 in the house belonging to P.W.1 at Ranganathar Street, Ramakrishnapuram, Coimbatore. By the side of the said house, P.W.1 had two other houses. In one of the houses, one Mr.Sankar was residing as a tenant and in the other house, the accused was residing as a tenant along with his wife. The accused occupied the said house as a tenant on 05.03.2014 on agreeing to pay a monthly rent of Rs.2,650/-. He paid a sum of Rs.8,500/- to P.W.1 towards advance. The wife of the accused was also living with him. Frequently there arose quarrels between the accused and his wife. His wife, therefore, left for her parental home. The accused vacated the rented house on 10.05.2014. After adjusting the arrears of rent from the amount already paid as advance, a sum of Rs.3,200/- was due from P.W.1. At the time when the accused vacated the house, P.W.1 assured that she would repay Rs.3,200/- to the accused after some other tenant is put in possession of the house. The accused agreed for the same and left. 3. On 01.06.2014, P.W.6 was not in the house, but, P.W.1 was there. By around 11.00 a.m., the accused came to the house of P.W.1 and demanded return of advance amount as assured by her earlier. P.W.1 told him that as already assured she would return the same after some other tenant is fixed for the house. The accused remained there for quite some time and left in his motorcycle. But, visibly, the accused was not satisfied with the said assurance. 4. By around 2.30 p.m., P.W.1 went to her brother-in- law's house. D1 to D3 alone were there in the house. She returned by around 06.30 p.m. She found that there was no light in the house. Then, she opened the gate and went into the compound of the house but, within the compound. There is a bathroom outside the house. When she went near the bathroom, she had the sound of water flowing inside the bathroom. She put on the light in the pial of the house. When she entered into the house, she found D3 lying in the cradle which was full of blood stain. There was a pool of blood on the floor beneath the cradle. Shocked to see the same, she lifted D3 and found that there were stab injuries on the child. Then she rushed to the bathroom. The bathroom was bolted from outside. She opened the same and found that D1 was lying there with stab injuries on her chest and other parts of the body. Water was flowing from the shower. She was lying in a pool of blood. P.W.1 tried to lift her out, but, she could not. Then, she went in search of D2. D2 was found lying on the cot in the bedroom with stab injuries in a pool of blood. She raised alarm which attracted the neighbours. The gold thali chain with yellow connecting cord and thalli and gold balls were not found on the neck of D1 which she was wearing all along. 5. P.W.2, a neighbour, who rushed to the house of P.W.1, on hearing the alarm raised by P.W.1, found the shocking scene. He informed P.W.1 that he saw the accused around 5.30 p.m. on the same day closing the bathroom door and leaving the scene of occurrence in his motor cycle bearing Regn. No. TN 38 BV 8440. P.W.1 had raised suspicion against the accused from out of his above conduct. Meanwhile, some one had informed the "108 Ambulance service". Within a short while, Ambulance came. A para medical staff in the ambulance van examined D1 to D3 and declared them dead. By the time, P.W.4 had also arrived at the scene of occurrence. Then, as dictated by P.W.1, P.W.4 drafted a complaint (vide Ex.P1). P.W.1, thereafter went to the police station and presented the said complaint. P.W.10, the then Sub Inspector of Police, Saravanampatti Police Station, on receipt of Ex.P.1 complaint, registered a case in Crime No.373 of of 2014 for offences under Sections 302 and 380 of IPC. Ex.P.11 is the FIR. He forwarded both the complaint (Ex.P.1) and the FIR (Ex.P.11) to the court and handed over the case diary to the Inspector of Police. 6. P.W.15, the then Inspector of Police, on 01.06.2014 at 08.15 p.m., took up the case for investigation and called the photographer to the place of occurrence. He immediately visited the scene of occurrence. He took photographs with the help of the photographer (P.W.12). M.O.13 (series) are photographs taken at the place of occurrence. Then, he prepared an observation mahazar in the presence of P.W.5 and another witnesses. He recovered two pieces of blood stained cement floor and two pieces of sample cement floor (without blood stains) respectively, a blood stained floral designed bed spread and blood stained cradle clothe from the different places of occurrence under separate mahazars [Ex.P.3 to 5] in the presence of the same witnesses. After conducting inquest on the bodies of D1 to D3, he forwarded the dead bodies for postmortem. Both the complaint and the FIR were received by the learned jurisdictional Magistrate at 07.30 a.m. on 02.06.2014. 7. P.W.11 Dr. Jeyasingh conducted autopsy on the body of D1 on 02.06.2014 at 1.55 p.m. and he found the following injuries on D1:- "Ante mortem injuries:- (1) Vertically oblique stab wound 2.25 x 0.75 cm x lung deep noted over right upper chest. The upper outer blunt end is 5 cm below and lateral to sterno clavicle joint and the inner lower sharp end is 2 cm lateral to midline. The wound passes inwards and downwards, piercing the 3rd right inter costal muscle and enter into the anterior part of the right side lung up to depth 2 cm. Right side pleural cavity contains about 300 ml of fluid blood with clots. (2) Horizontally oblique stab wound 2 x 0.5 cm x cavity deep noted over sterno clavicular notch. The medial sharp end is starting from the mid line and the outer blunt end is ends with right sterno clavicular joint. The wound passes inwards and downwards, and cutting the underlying muscle, vessels, nerves and enter into the right pleural cavity. (3) Horizontally oblique stab wound 2.25 x 0.5 x 2 cm muscle deep noted over left side lower neck just above clavicle. The lower blunt end is left sterno clavicular joint and the upper outer sharp end is 2 cm lateral to mid line. (4) Vertically oblique stab wound 2 x 0.5 cm noted over middle of lower part of neck. The lower end is 1 cm above to wound no.2 and the upper end is 5 cm below to the thyroid prominence. The wound passes inwards, backwards piercing the trachea and enter into the larynx. (5) Vertically oblique stab wound 1.5 x 0.5 cm noted over right lower part of neck. The lower end is 1.5 cm above to outer end of wound no.2 and upper end is 0.75 cm lateral to the upper end of wound no.4. The wound passes inwards and downwards, and cutting the underlying muscle, vessels, nerves up to 2 cm depth. (6) Horizontally oblique stab wound 2 x 0.5 x 2 cm noted over right side lower part of neck. The inner end is 0.5 cm above to the upper end of wound no.4 and outer end is 2 cm above and lateral to the wound no 5. The wound passes inwards and downwards, and cutting the underlying muscle, vessels, nerves. (7) Vertically oblique stab wound 2 x 0.5 x 2 cm noted over middle of neck. The lower end is 0.5 cm above to the wound no 6 and upper end is 2 cm above to outer end of wound no 6. The wound passes inwards , downwards and cutting the underlying muscle, vessels and nerves. (8) Incised wound 0.25 x 0.25 x 0.25 cm noted over right side neck. The inner end is 0.5 cm lateral to the wound no.7. (9) Vertically oblique stab wound 2 x 0.75 cm noted over middle of neck just 0.5 cm below to the thyroid prominence. The inner end is 0.25 cm above to the wound 7 and the upper end is 0.5 cm thyroid prominence. The wound piercing the muscle and entering to the larynx. (10) Vertically oblique stab wound 3 x 1 x 3 cm noted over upper part of right side neck. The upper sharp end is 5 cm below to the right ear lobe and lower blunt end is 7 cm below right mastoid eminence. The wound passes inwards and forward and piercing the underlying muscles, nerves and vessels. (11) Horizontally oblique stab wound 2 x 0.5 x 2 cm noted over left side chin. The inner end is mid line and outer end is 0.5 cm below to the ankle of mouth. The wound passes inwards and forwards and piercing the underlying muscles , nerves and vessels. (12) Stab wound 2 x 0.5 cm x 2cm muscle deep noted over left shoulder. (13) Incised wound 3 x 0.5 cm x muscle deep noted over left side lower neck. (14) Incised wound 2 0.25 x 0.25 cm noted right lower neck. (15) Vertically oblique stab wound 2 x 1 x 1 cm noted over left side middle of neck. The inner end is 3 cm lateral to thyroid prominence and the upper end is 8 cm to the previous wound. (16) Incised wound 2 x 0.5 x 0.5 cm noted over 0.5 cm below to the previous wound. (17) Incised wound 1 x 0.25 x 0.5 cm noted over left upper neck. (18) Incised wound 1 x 0.25 x 0.25 cm noted over left side middle of jaw. (19) Incised wound 0.75 x 0.25 x 0.25 cm , 0.75 x 0.25 cm and 0.25 x 0.25 cm noted over left side upper neck. (20) Incised wound 3 x 1 x 2 cm noted over left forearm, 1 cm above the writs, cutting the muscle, vessels, nerves. The medial end is blunt and the lateral end is sharp. (21) Reddish contusion 4 x 4 cm x scalp deep noted over right temporo parietal region. On dissection of Scalp, Skull and Dura: Sub scalpal contusion reddish in colour 5 x 4 cm noted over right temporo parietal region. Thin sub arachnoid hemorrhage noted over both parietal region. Other findings: - Peritoneal & Left Pleural cavities - empty. - Heart - right side chambers contain about few cc of fluid blood and left side chambers empty. Coronaries - patent. - Stomach contains about 10 ml of bile stained fluid, no specific smell, mucosa pale. - Liver, Spleen, Kidneys, Lungs and Brain - cut section pale. - Urinary bladder - empty. - Uterus: Normal in size, cut section empty. - Blood preserved for analysis. - Uterus and vaginal swab preserved for analsys." Ex.P.13 is the postmortem certificate. The Doctor opined that D1 would appear to have died due to shock and hemorrhages due to the multiple stab injuries and its corresponding internal injuries. According to him, the death would have occurred 12 to 24 hours prior to the postmortem. 8. P.W.11 Dr.Jeyasingh, on the same day at 2.45 p.m. conducted autopsy on the body of D3 and found the following injuries:- "Ante mortem injuries:- (1) Stab injury 2 x 0.5 cm x muscle deep noted below left lateral chin, 1.5 cm below the medial end of left side mandible. Lateral end is sharpening. (2) Stab injury 3 x 0.5 cm x muscle deep noted below the wound no 1. Lateral end is sharpening. On dissection the wound passes inwards, downwards and cutting the underlying muscle, vessels, nerves up to 2 cm in depth. (3) Incised wound 1.5 x 0.5 cm x muscle deep noted over 1 cm below the wound no 2. (4) Stab injury 1 x 5 x 0.5 cm x muscle deep noted over centre of neck. The wound passes inwards, downwards piercing the thyroid cartilage and enter into the lumen. (5) Stab injury 1 x 0.5 cm x muscle deep noted over left side neck, 1.5 cm below the wound no 4. Medial end is sharp and lateral end is blunt. The wound passes inwards, downwards medially piercing the thyroid deep and enter into the lumen. (6) Stab wound 1 x 0.5 cm x muscle deep noted over left side of upper chest just lateral to sternum. The wound passes inwards, downwards piercing the underlying muscle, vessel, nerves and enter into the left pleural cavity and piercing the upper lobe of left lung. Left side pleural cavity contains about 500 ml of fluid blood. (7) Stab wound 0.3 x 0.3 cm x muscle deep noted over left upper arm lateral to wound no 6. (8) Stab wound 0.5 x 0.5 cm x muscle deep noted over lateral part of left upper chest, 2.5 cm below the left clavicle. (9) Stab wound 0.2 x 0.2 x 0.5 cm noted over left side upper chest, just below the wound no 8. (10) Stab wound 0.2 x 0.2 cm x bone deep noted over upper 1/3rd sternum. (11) Incised wound 2 x 0.5 cm x bone deep noted over dorsum of left wrist. (12) Incised wound 2.3 x 0.5 cm x bone deep noted over lateral part of dorsum of writ. Other Findings:- - Peritoneal and Right Pleural cavities: empty. - Hyoid bone , intact. - Larynx and Trachea: Cut section pale. - Heart: all chambers contains about few cc of fluid blood. Coronaries patent. - Stomach contains about 150 grams of partially digested food particles, no specific smell, mucosa pale. - Small intestine contains about 10 ml of brown colour fluid no specific smell, mucosa pale. - Liver, Lungs, Spleen, Kidneys and Brain: cut section pale. - Urinary bladder , empty. - Blood preserved for analysis." Ex.P.15 is the postmortem certificate. The Doctor opined that the deceased would appear to have died of shock and hemorrhage due to multiple stab injuries and its corresponding internal injuries. According to him, the death would have occurred 12 to 24 hours prior to the postmortem. 9. P.W.7 Dr.Kulanthaivelu, conducted autopsy on the body of D2 on 02.06.2014 at 1.55 p.m. He found the following injuries:- "Ante mortem injuries: (1) Vertically oblique stab wound 2 x 1 cm x peritoneal cavity deep exposing small intestine noted over right ileac region. The lower sharp end is 4 cm above to the midpoint of ileac bone and the upper blunt end is 7 cm below and lateral to umbilicus. The wound passes inwards, down wards and entire into the peritoneal cavity. (2) Vertical incised wound 2 x 1 x 1 cm noted over lateral aspect of right side abdomen. The lower end is 5 cm above to ileac crest. (3) Stab wound 2 x 1.5 cm x peritoneal cavity deep noted over lower part of right side chest and upper part of abdomen. The lower sharp end is 5 cm above and lateral to the umbilicus and upper blunt end is 9th inter costal space at mid clavicular line. The wound passes inwards, downwards and piercing the right lobe of liver measuring 2 cm in depth. (4) Stab wound 2 x 1 cm x peritoneal cavity deep noted over epigastric region exposing small intestine and mesentry. The lower sharp end is 3 cm above and lateral to umbilicus and the upper end is 3 cm below to lateral xiphoid process. The wound passes inwards, piercing abdominal muscle entering into the peritoneal cavity and partly cutting the duodenum. (5) Horizontally oblique stab wound 2 x 1 cm x peritoneal cavity deep noted over upper part of right epigastric region. The upper blunt end 2 cm above and medial from the wound no.2. The wound passes inwards piercing the muscle entering to the stomach. (6) Vertical incised wound 1 x 0.75 cm noted over right lower chest. The upper blunt end is 9 cm from the right side nipple and the lower sharp end is 2 cm above to the upper end of wound no.3. (7) Horizontally oblique incised wound 2 x 0.5 x 0.5 cm noted over right upper chest. The innter end is sharp and outer end is blunt. (8) Horizontally oblique incised wound 2 x 0.5 x 0.5 cm noted over right upper chest. (9) Stab wound 2 x 0.5 cm x muscle deep noted over right upper chest, 1.5 cm above wound No.6. (10) Incised wound 2 x 1 cm x muscle deep noted over right upper chest, 0.25 cm above to the previous wound No.9. (11) Incised wound 2 x 0.5 cm x muscle deep noted over right upper chest, merges with the previous wound. (12) Incised wound 1.5 x 0.5 x 0.5 cm noted over right lower part of neck just above the clavicle. The medial end is sharp and the outer end is blunt. (13) Incised wound 2 x 0.5 x 0.5 cm noted over right lower part of neck, the inner sharp end is 1 cm above to previous wound. (14) Two stab wound 0.5 x 0.5 x 0.5 cm noted over right lower part of neck and 0.25 x 0.25 x 0.25 cm noted over right lower neck. (15) Stab wound 2 x 1 x 3 cm noted over upper part of right side neck. The wound passes inwards, upwards, cutting the underlying muscles and cutting the right side greater cornu of hyoid bone and enter into the glottis area just below to the epiglottis. (16) Stab wound 2 x 0.5 x 3 cm noted over left lower neck, the lower end is at the level of left sterno clavicular joint. The wound passes upwards along the muscle plane. (17) Incised wound 3 x 1 cm x muscle deep noted over left upper chest. Outer end is sharp and inner end is blunt. (18) Horizontally oblique incised wound 2 x 1 cm x muscle deep noted over left upper chest, 0.75 cm below to the previous wound. (19) Eight stab injury 1.5 x 0.5 cm x muscle deep noted over upper part of middle of neck above the thyroid cartilage. (20) Stab injury 1.5 x 0.5 cm x muscle deep noted over right forearm. (21) Incised wound 3 x 1 cm x muscle deep and 3 x 1 cm x muscle deep noted over upper part of right thigh. On dissection of scalp, Skull and Dura: sub scalpal contusion 4 x 3 cm noted over mid occipital region. On dissection of Thorax and Abdomen: Peritoneal cavity contains about 500 ml of fluid blood. Right side pleural cavity contains about 200 ml of fluid blood. Other Findings:- - Left pleural cavity: empty. - Hyoid bone - intact. - Heart: all chambers contains about few cc of fluid blood. - Stomach contains about 100 grams of partially digested food particles, no specific smell, mucosa pale. - Small intestine contains about 10 ml of bile stained fluid, no specific smell, mucosa pale. - Liver, Lungs, Spleen, Kidneys and Brain: cut section pale. - Urinary bladder - empty. - Blood preserved for analysis." Ex.P.6 is the postmortem certificate. He opined that the deceased would appear to have died of shock and hemorrhages due to multiple stab injuries and corresponding internal injuries. According to him, the death would have occurred 12 to 24 hours prior to the postmortem. 10. During the course of investigation, on the request made by the investigation officer, P.W.13 the Finger Print Expert visited the scene of occurrence. He lifted four chance prints from the house, out of the same two tallied with that of P.W.6 and two other did not tally with the finger prints of any of the inmates of the house. After the arrest of the accused, finger prints of the accused were taken. On examination conducted by P.W.13, they found to tally with that of the two chance finger prints lifted from the scene of occurrence. 11. During the course of investigation, on 02.06.2014 at 04.00 p.m. in the presence of P.W.8 and another witness, P.W.15 arrested the accused at Kalangal road and Trichy road junction near Iyangar Bakery. On such arrest, he found to possess a gold chain with thali and two gold balls. P.W.15, the investigating officer recovered the same under a mahazar (Ex.P.8). The gold thali and gold balls (M.O.1) were connected by a yellow cord (M.O.9) tied to the gold chain and thali. The yellow cord was found containing blood stains. Then, the accused gave a voluntary confession in which he had disclosed the place where he had hidden the knife and the clothe. P.W.16, recovered the same in the presence of witnesses. In pursuance of the disclosure statement, the accused took P.W.15 and the witnesses to Ramakrishnapuram and from a bush near CM Marriage Hall, he produced a knife with blood stains (M.O.8), a jeans pants with blood stains (M.O.10) and a full sleeve shirt with blood stains (M.O.11). Then, he produced the motor cycle bearing Regn. No.TN 38 BV 8440 (M.O.12) from near the bush at "Srivari Layout", Ramakrishnapuram. P.W.15 recovered these material objects under two different mahazars (Ex.P.9 and Ex.P.10) in the presence of P.W.9 and another witness. 12. On returning to the police station, he forwarded the accused to the court for judicial remand and handed over the material objects to the court. At his request, the yellow cord (M.O.9) was sent for DNA examination with that of the blood stains of the deceased and the accused. P.W.14 conducted DNA examination and found that the DNA extracted from M.O.9 tallied with the DNA of D1 and the accused. P.W.15, the investigating officer, during the course of further investigation, examined the Doctors and the Scientific Experts and collected the postmortem certificates and the DNA report. On completing the investigation, P.W.15 laid the final report against the accused under Sections 302 and 404 of IPC before the learned Judicial Magistrate No.I, Coimbatore. 13. Based on the above materials, the trial court framed a as many as three charges under Section 449, 302 (Three counts) and 404 of IPC. The accused denied the same. In order to prove the same, on the side of the prosecution, as many as 15 witnesses were examined, 24 documents and 15 materials objects were marked. 14. When the above incriminating materials were put to the accused under Section 313 of the Code of Criminal Procedure, he denied the same. However, he did not choose to examine any witness on his side nor did he mark any document. His defence was a total denial. 15. Out of the said witnesses, P.W.1, the mother in law of the deceased has spoken about the fact that the accused came to her house by 11.00 a.m. on 01.06.2014 demanding return of balance advance amount from her in the motor cycle (M.O.12). She has further stated that she left the house at 2.30 p.m. and when she returned to the house at 06.30 p.m. she found D1, D2 and D3 dead. She has further stated that P.W.2 informed her that the accused was found closing the bathroom door by about 5.30 p.m. on the same day and leaving the place of occurrence in his motor cycle (M.O.12). P.W.3, yet another neighbour, has stated that on the day of occurrence, when he was returning to his house, he found the accused coming from the opposite direction from the house of the deceased in the motor cycle (M.O.12). P.W.4, yet another neighbour, has stated that on the day of occurrence, he found the accused going into the house of the deceased after parking his motor cycle (M.O.12). When he enquired the accused as to what had brought him there, he told that he came there to receive back the advance money. P.W.6, the husband of the deceased, has stated that at the time of occurrence, he was not in his house and he came to know about the occurrence only in the evening. He has identified the belongings, more particularly, M.O.1 Gold chain with gold thali and gold balls and the yellow cord-M.O.9. P.W.5 has spoken about the preparation of the observation mahazar, rough sketch and the recovery of material objects from the place of occurrence. P.W.7 and P.W.11 Doctors have spoken about the post-mortem conducted on the bodies of the deceased respectively and their final opinion regarding the cause of death. P.W.9 has spoken about the fact that he saw the accused at 5.50 p.m. on 01.06.2014 going in his motor cycle and at that time, there were blood stains on his shirt and pants. According to P.W.9, when he enquired the accused, he told him that he had met with an accident. P.W.8 has spoken about the arrest of the accused, disclosure statement made by him and the consequential recoveries and also the fact that M.O.1 and M.O.9 were recovered form the possession of the accused at the time of arrest itself. 16. P.W.10 has spoken about the registration of the case on the complaint of P.W.1. P.W.12 has spoken about the photographs taken at the place of occurrence. P.W.13, the Finger Print Expert, has stated that two chance finger prints lifted from the place of occurrence tallied with that of the finger prints of the accused. P.W.14, an Expert from the Forensic Science Department, has stated that DNA extracted from M.O.9-yellow cord tallied with the DNA of D1 and that of the accused. P.W.15 has spoken about the entire investigation done by him and the filing of the final report against the accused. 17. Having considered all the above, the trial court convicted the accused under sections 449, 302 (Three counts) and 404 of IPC and, accordingly, punished him as detailed in the first paragraph of this judgement. That is how, the accused is now before this court with this criminal appeal. 18. We have heard the learned counsel for the appellant and the learned State Public Prosecutor appearing for the respondent and also perused the records carefully. 19. This is a case based on circumstantial evidence. At the outset, we should say that in a case based on circumstantial evidence, the prosecution is required to prove the circumstances projected by them beyond all reasonable doubts and all such proved circumstances should form a complete chain without any break and the same should unerringly point to the guilt of the accused and there should not also be any hypothesis which is inconsistent with the guilt of the accused. Keeping this broad principle in mind, let us now, analysis the circumstances projected by the prosecution one after the other. 20. The first and the foremost circumstance is the motive. It is in the evidence of P.W.1 and P.W.6 that the accused was a tenant in the house of P.W.1 for some time and he vacated the said house on 10.05.2014 and a sum of Rs.3,200/- was due from P.W.1 on account of the same. Since P.W.1 did not return the balance advance amount, the accused had developed some grudge against P.W.1 and her family members. P.W.1 had admitted that at 11.00 a.m. on 01.06.2014, when the accused came to her house and wanted repayment of the said money , she told him that as soon as a tenant is fixed for the said house, she would return the amount to him. On receiving the said assurance, the accused did not quarrel with P.W.1. He simply agreed with the said assurance and left the place of occurrence. Thus, in our considered view, the prosecution has not proved any motive against the accused so as to commit the murders of D1 to D3. It is not alleged that the accused had anything to do either with D1 or with D2 and D3. Thus, in our considered view, though the prosecution has proved that a sum of Rs.3,200/- was due from P.W.1 that would not constitute a motive for the accused to commit the murders of these three innocent people. 21. The next circumstance is the fact that at 2.30 p.m., in the house of P.W.1, D1 to D3 alone were there. This has been spoken to by P.W.1 who has stated that at 2.30 p.m. she left for the house of her brother in law leaving behind D1 to D3 alone in the house. P.W.6, the husband of D1, has also stated that he was not in the house during the relevant time. Thus, the prosecution has succeeded in establishing that at the crucial point of time, in the house of the deceased only D1 to D3 alone were there. 22. The third circumstances is the movement of the accused at about 5.45 p.m. on the day of occurrence. P.W.2, a neighbour of the deceased, has stated that at 5.45 p.m. when she was in his house, he found the accused closing the door of the bathroom attached to the house of the deceased and going away from the house in his motor cycle (M.O.12) . The dead bodies of D1 to D3 were found for the first time by P.W.1 at 06.30 p.m. When P.W.1 raised alarm, P.W.2 rushed to the house of P.W.1 and informed her about the fact that he saw the accused closing the door of the bathroom and leaving the house of the deceased in his motor cycle (M.O.12). P.W.1 has also stated that P.W.2 informed her about the same. Thus, the earliest information passed on by P.W.2 to P.W.1 was about the movement of the accused lastly, within the compound wall of the house of the accused. Though he had denied the said fact, we do not find any reason to reject the evidence of P.W.2 coupled with the evidence of P.W.1. Though P.W.2 has been cross examined at length, we find nothing elicited from him so as to discredit the said witness. No other circumstances has also been brought on record by the accused so as to disbelieve P.W.2. Thus, from the evidence of P.W.2, duly corroborated by P.W.1, the prosecution has proved this circumstance beyond reasonable doubt this circumstance. 23. The next circumstance is the evidence of P.W.9, who is a resident of Vinayagapuram Village. He is an auto driver by profession. He claims that he knew the accused previously. He has stated that at 5.50 p.m. on 01.06.2014, he was waiting in his auto waiting for customers at Sathi Road in Coimbatore. At that time, the accused came in his motor cycle. There were blood stains on his shirt and pants. When P.W.9 enquired the accused about the same, he explained that he had met with a minor accident. Unfortunately, the shirt and pants worn by the accused at that time were not shown to him so as to identify the same. Notwithstanding the same, from the oral evidence of this witness it has been established that at 5.50 p.m., on the day of occurrence, he saw the accused fleeing away from the scene of occurrence. P.W.4 Senthilkumar is yet another important witness, who had seen the accused while he entered into the house of the deceased at or about the time of occurrence. From these evidences, the prosecution, has proved that the accused was found entering into the house of the deceased at or about the time of occurrence. He was found closing the bathroom door and leaving the place of occurrence in his motor cycle. He was found going away from the house of the deceased and lastly he was seen at a distant place with blood stained clothes. These circumstances in our considered view, have been clearly established by the prosecution. 24. The next important circumstance is the chance finger prints lifted from the scene of occurrence. After the registration of the case, on the request made by the investigating officer, P.W.13 had visited the place of occurrence. On a thorough examination, he found chance prints, two on the main door of the bed room and two on the door of the next room. He lifted and marked the same as G.1, G2, G3 and G4 with the help of a photographer who took photographs of these four chance finger prints. They were preserved by him. Later on, the finger prints of P.W.6 and the other inmates of the house were compared to the chance finger prints namely, G1 to G4, out of which G3 and G4 tallied with that of P.W.6, but the chance finger prints-G1 and G2, did not tally with the finger prints of any of the inmates. After the arrest of the accused his finger prints were taken and they were compared with G1 and G2. P.W.13 found that G1 and G2 tallied with the admitted finger prints of the accused. Though, this witness has been examined at length, nothing has been elicited to create doubt in his evidence. He is an independent witness whose evidence requires credence. The accused had not explained as to how his chance finger prints had come to be found at the bed room and at the next room of the deceased. It is not his case that on any previous occasion, he had gone into the house of the deceased so that his finger prints would have come to be affixed on the door of the bed room and in the other room. From this circumstance, it has been proved that the accused had gone into the house of the deceased , that too, up to the bed room where the dead body of D2 was found and in the other room where the dead body of D3 was found. 25. Yet another circumstance relied on by the prosecution is that the accused was arrested on 02.06.2014 at 04.00 p.m. by the investigating officer in the presence of P.W.8 and another witness. When he was so arrested, he was found in possession of M.O.1 gold chain with gold thali and two gold-balls and M.O.9 yellow cord tied to the said gold chain. P.W.1 has stated that when she found the dead body of D1 at 06.30 p.m. on 01.06.2014, the gold thali and gold balls and the yellow cord were found missing from the neck of D1. She has further stated that she has mentioned the missing of these objects even in Ex.P.1 complaint itself. She has identified M.O.1 and M.O.9 as the said gold chain, gold thali and gold-balls and also yellow cord tied to the same. However, the accused denied the same. But, we do not find any reason to reject the evidence of P.W.8 and P.W.15 in this regard. Even, the learned counsel for the accused is not able to point out any infirmity in the evidence of these witnesses so as to disbelieve them. During cross examination, some questions have been asked to P.W.5 as though he were under memory test. No vital answer has been elicited from him so as to create doubt in the veracity of P.W.8. Thus, from these evidences we hold that the accused was found in possession of the stolen properties namely, M.O.1 and M.O.9 soon after the commission of theft. 26. In this case, there can be no doubt that the murders and the removal of the belongings of D1 had taken place in one and the same transaction. Therefore, as per section 114 of the Evidence Act, the presumption is that the accused who was found in possession of M.O.1 and M.O.9, soon after the commission of theft, had committed the murders of D1 to D3 and also removed M.O.1 and M.O.9 from the body of D1. Of course, the said presumption is rebuttable, but the accused has not brought on record any material to rebut this presumption. Thus, from this unrebutted presumption the prosecution has established that it was this accused who committed the murders of D1 to D3 and removed M.O.1 and M.O.9 from the body of D1. 27. In the same statement, he made a further disclosure about the place where he had hidden the knife, the motor cycle and the blood stained pants and shirt. In pursuance of the same, these material objects namely, M.O.12-motor cycle bearing Regn. No.TN 38 BV 8440, M.O.10-jeans pants, M.O.11-full sleeve shirt and also M.O.8 knife were recovered. But, there is no direct evidence that the accused was found wearing M.O.10 and M.O.11 at the time of occurrence and that M.O.8 was used to commit the murders of D1 to D3. This disclosure statement has been marked as Ex.P.7. In our considered view, Ex.P.7 disclosure statement is not admissible in evidence for, it is not every fact that is discovered from out of such disclosure statement that makes the statement relevant under Section 27 of the Evidence Act. It is only the discovery of a relevant fact that makes the statement relevant under Section 27 of the Evidence Act. Relevance of the fact discovered is to be, therefore, established by the prosecution. In other words, the link between the fact discovered and the crime is to be established. In the instant case, as we have already pointed out, there is no direct evidence that the accused was found wearing M.O.10 jeans pants and M.O.11 full sleeve shirt either before or at the time or immediately after the occurrence. Even P.W.9 has not identified M.O.10 and M.O.11, Similarly, there is no evidence that M.O.8-knife was used for committing the murders of D1 to D3. In these circumstances, such kind of link could be established by proving the blood stains found on the material objects tallying with the blood group of the deceased. Unfortunately, in this case, P.W.15 did not take any step to forward the material objects for chemical examination at all. Thus, we hold that Ex.P.7 is not admissible in evidence. 28. The next very strong circumstance which comes up for consideration is the DNA examination. At the time of arrest of the accused, as we have already pointed out, the accused was found in possession of M.O.1 and M.O.9. In M.O.9-yellow cord, blood stains were found. It was forwarded to the Forensic Science Department, where P.W.14, an Expert in DNA Science, extracted DNA from M.O.9 and, later on, compared the same with that of the DNA drawn from the blood stains of the deceased. According to P.W.14, they tallied. The accused has got no explanation as to how in the yellow cord (M.O.9), the blood stains of D1 came into being. This would also go to only prove that the accused had removed M.O.1 and M.O.9 from the dead body of D1. 29. P.W.7 Dr.Kulanthaivelu and P.W.11 Dr.Jeyasingh who conducted autopsy on the dead bodies of the deceased have stated that the deaths would have occurred 12 to 24 hours prior to the postmortem. This opinion corroborates the evidence of P.W.1 to P.W.4. They have further opined that D1 to D3 had died due to shock and hemorrhages due to stab injuries which could have been caused by a weapon like M.O.8. Thus the prosecution has proved that D1 to D3 had died out of homicide. Though the prosecution has not been able to prove the motive for the occurrence, that is not the ground to disbelieve the rest of the circumstances which have clinchingly proved the guilt of the accused. 30. From these proved circumstances, we find that the prosecution has, unerringly, clinchingly and without leaving behind any doubt, has proved that it was this accused who trespassed into the house of the deceased and caused the death of D1 to D3. From the nature of the injuries found on D1 to D3, it has been proved that the accused had caused the death of D1 to D3 with the intention to cause the death falling within the first limb of Section 300 of IPC. Thus, the prosecution has proved that the accused has committed offences punishable under Sections 449, 302 (Three counts) and 404 of IPC. 31. The referred trial proceedings have been submitted to this court under Section 366 of Cr.P.C. for confirmation of the death sentence imposed on the appellant in respect of the murders of D2 and D3. So far as the murder of D1 is concerned, the trial court itself has imposed only the minimum punishment for imprisonment for life. Now, the question is whether the appellant/accused deserves to suffer capital punishment for the murders of D2 and D3. 32. It happens in this country, that the jurisprudence of death penalty is the subject of debate in various forums, including the courts of law, both the higher as well as subordinate judiciary, from the Colonial British Rule when section 302 of IPC was put in place in 1860. Post constitution, for about 66 years, the said debate is endless. There is one school of thought and perhaps, there is a cry among a section of civil society that the death penalty should be abolished as it grossly violates the human rights of the convict of his right of existence. Recently, even the Law Commission has gone to the extent of recommending to the Government to abolish the death penalty except in certain specified rare cases such as cases involving the security of the nation. Article 21 of the Constitution of India which has been considered as the heart and soul of the Constitution guarantees the right to life and liberty of every individual and it mandates that life and liberty cannot be deprived of except by following the procedure established by law. On the touchstone of Article 21, the constitutionality of the death penalty envisaged in Section 302 of IPC was tested by a Constitution Bench of the Hon'ble Supreme Court in Bachan Singh v. State of Maharashtra, 1980 (2) SCC 684 wherein the Hon'ble Supreme Court eventually upheld its constitutionality. However, the Hon'ble Supreme Court declared that generally, life sentence should be the rule and the death sentence should be an exception. The Constitution Bench has further held that the death sentence could be awarded only in rarest of rare cases. 33. Over a period of about 36 years, the Hon'ble Supreme Court, while dealing with the rarest of rare doctrine, as propounded in Bachan Singh case, cited supra, has been endeavouring to impress upon the judiciary as to what exactly is the rarest of rare case which warrants the extreme penalty of death. In this case, it is not our endeavour to catalogue all those judgments, post Bachan Singh case, as the same would only add to the length of this judgement. It is enough for us to state that while deciding the quantum of punishment, the court is obliged to balance between the aggravating and mitigating circumstances and impose the appropriate punishment so as to do justice to the parties. There are a few judgments of the Hon'ble Supreme Court following "balance-sheet theory" so as to balance between the aggravating and mitigating circumstances and there are also judgments of the Hon'ble Supreme Court taking a contrary view wherein the Hon'ble Supreme Court has held that comprehensively all the circumstances namely, aggravating as well as mitigating circumstances are to be taken into account. From the various judgments of the Hon'ble Supreme Court, commencing from Bachan Sing case, various principles have been culled out by the Hon'ble Supreme Court. Recently in Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767. The Hon'ble Supreme Court has identified certain factors which are to be taken into account by the courts that are as follows:- "(1) The court has to apply the test to determine, if it was the "rarest of rare" case for imposition of a death sentence. (2) In the opinion of the court, imposition of any other punishment, i.e. life imprisonment would be completely inadequate and would not meet the ends of justice. (3) Life imprisonment is the rule and death sentence is an exception. (4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations. (5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime." 34. In Shankar Kisanrao Khade v. State of Maharashtra, (2013) 5 SCC 546, the Hon'ble Supreme Court has held as follows:- "In my considered view that the tests that we have to apply, while awarding death sentence are "crime test", "criminal test"and the "R-R test" and not the "balancing test". To award death sentence death sentence, the "crime test" has to be fully satisfied, that is 100% and "criminal test" 0%, that is no Mitigating Circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record etc. the "criminal test" may favour the accused to avoid the capital punishment. Even, if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the Rarest of Rare Case test (R-R Test). R-R Test depends upon the perception of the society that is "society centric" and not "Judge-centric", that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the Court has to look into variety of factors like society's abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of minor girls intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The Courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the judges." 35. In Swamy Shraddananda (2) v. State of Karnataka, [cited supra], the Hon'ble Supreme Court has further elaborated as to how go about to find whether a particular case falls within the category of rarest of rare case or not. In paras 34, 36, 43 , 45 and 47, the Hon'ble Supreme Court has held as follows:- "34. As on the earlier occasion, in Bachan Singh2 too the Court rejected the submission. The Court did not accept the contention that asking the Court to state special reasons for awarding death sentence amounted to leaving the Court to do something that was essentially a legislative function. The Court held that the exercise of judicial discretion on well-established principles and on the facts of each case was not the same as to legislate. On the contrary, the Court observed, any attempt to standardise or to identify the types of cases for the purpose of death sentence would amount to taking up the legislative function. The Court said that a standardisation or sentencing discretion is a policy matter which belongs to the sphere of legislation and the Court would not by overleaping its bounds rush to do what Parliament, in its wisdom, warily did not do. 35. ... ... ... 36. Arguing against standardisation of cases for the purpose of death sentence the Court observed that even within a single category offence there are infinite, unpredictable and unforeseeable variations. No two cases are exactly identical. There are countless permutations and combinations which are beyond the anticipatory capacity of the human calculus. The Court further observed that standardisation of the sentencing process tends to sacrifice justice at the altar of blind uniformity. ... ... ... ... ... ... ... ... 43. In Machhi Singh1 the Court crafted the categories of murder in which the community should demand death sentence for the offender with great care and thoughtfulness. But the judgment in Machhi Singh1 was rendered on 20-7-1983, nearly twenty-five years ago, that is to say a full generation earlier. A careful reading of the Machhi Singh1 categories will make it clear that the classification was made looking at murder mainly as an act of maladjusted individual criminal(s). In 1983 the country was relatively free from organised and professional crime. Abduction for ransom and gang rape and murders committed in the course of those offences were yet to become a menace for the society compelling the legislature to create special slots for those offences in the Penal Code. At the time of Machhi Singh1, Delhi had not witnessed the infamous Sikh carnage. There was no attack on the countrys Parliament. There were no bombs planted by terrorists killing completely innocent people, men, women and children in dozens with sickening frequency. There were no private armies. There were no mafia cornering huge government contracts purely by muscle power. There were no reports of killings of social activists and whistle-blowers. There were no reports of custodial deaths and rape and fake encounters by police or even by armed forces. These developments would unquestionably find a more pronounced reflection in any classification if one were to be made today. Relying upon the observations in Bachan Singh2, therefore, we respectfully wish to say that even though the categories framed in Machhi Singh1 provide very useful guidelines, nonetheless those cannot be taken as inflexible, absolute or immutable. Further, even in those categories, there would be scope for flexibility as observed in Bachan Singh2 itself. ... ... ... ... ... ... ... ... 45. But the relative category may also be viewed from the numerical angle, that is to say, by comparing the case before the Court with other cases of murder of the same or similar kind, or even of a graver nature and then to see what punishment, if any was awarded to the culprits in those other cases. What we mean to say is this, if in similar cases or in cases of murder of a far more revolting nature the culprits escaped the death sentence or in some cases were even able to escape the criminal justice system altogether, it would be highly unreasonable and unjust to pick on the condemned person and confirm the death penalty awarded to him/her by the courts below simply because he/she happens to be before the Court. But to look at a case in this perspective this Court has hardly any field of comparison. The Court is in a position to judge the rarest of rare cases or an exceptional case or an extreme case only among those cases that come to it with the sentence of death awarded by the trial court and confirmed by the High Court. All those cases that may qualify as the rarest of rare cases and which may warrant death sentence but in which death penalty is actually not given due to an error of judgment by the trial court or the High Court automatically fall out of the field of comparison. ... ... ... ... ... ... ... ... 47. We are not unconscious of the simple logic that in case five crimes go undetected and unpunished that is no reason not to apply the law to culprits committing the other five crimes. But this logic does not seem to hold good in case of death penalty. On this logic a convict of murder may be punished with imprisonment for as long as you please. But death penalty is something entirely different. No one can undo an executed death sentence." 36. A reading of the judgments [cited supra], more particularly, Swamy Shraddanand's case, would go to show that no two cases are exactly identical. There are countless permutations and combinations which are beyond the anticipatory capacity of the human calculus. The Court further observed that standardization of the sentencing process tends to sacrifice justice at the altar of blind uniformity. 37. Applying these doctrines to the facts of the present case,if we consider the aggravating as well as the mitigating circumstances, what emerges is that it is not a case falling within the rarest of rare doctrine. So far as the aggravating circumstances are concerned, the prosecution has failed to prove the motive for the occurrence. But, at the same time, killing of young children [D2 and D3], who were sleeping, is brutal and gruesome and the same cannot be tolerated by any man of ordinary prudence. It should have, certainly, shaken the collective conscience of the society, as rightly observed by the trial court. But, it cannot be ignored that the trial court has not chosen to impose the death penalty for the murder of D1. There are also mitigating circumstances in favour of the accused, like his age, the fact that there was no motive and the case is based on circumstantial evidence. As has been held in Shankar Kisanrao Khade's case cited supra, it is not a case where there is 0% mitigating circumstance in favour of the accused. There are certain mitigating circumstances as enumerated hereinabove. Further, in our considered view, it is not as though the sentence of imprisonment for life would be inadequate. Having regard to the totality of all the circumstances, both the aggravating as well as the mitigating circumstances, both by balancing these two as well as by applying the test propounded in Shankar Kisanrao Khade's case cited supra, that there is no 0% mitigating circumstance in the instant case, we are of the view that so far as the murders of D2 and D3 are concerned, imprisonment for life would be the adequate punishment. Thus, we find it difficult to confirm the death penalty imposed by the trial court upon the appellant/accused. 38. But, at the same time, sofar as the imprisonment for life imposed on the appellant for the murders of D2 and D3 are concerned, the accused shall not be entitled for any remission for 25 years. [vide Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767]. 39. Sofar as the punishment for the offence under Section 404 of IPC is concerned, it is seen from the records that the trial court has imposed imprisonment for seven years on the appellant whereas, the maximum substantive punishment prescribed for the offence under section 404 of IPC, is only three years and, therefore, the substantive sentence imposed upon the appellant/accused for the offence under section 404 of IPC requires to be appropriately modified. 40. In the result, Referred Trial No.2 of 2015 is disposed of and the Criminal Appeal No.409 of 2015 is partly allowed in the following terms:- (i) The conviction and sentence imposed on the appellant/accused under Sections 449 of IPC by the trial court is hereby confirmed. (ii) The conviction of the appellant/accused under Section 302 of IPC for the murder of the deceased-Mrs.Vatchaladevi [D1] and the sentence of imprisonment for life and fine of Rs.1000/- and the default sentence are hereby confirmed. (iii) The conviction of the appellant/accused under Section 302 of IPC for the murder of the deceased-Makilan [D2] is confirmed, however, the sentence of death imposed by the trial court is set aside and instead, the appellant/accused is sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months. It is further directed that the appellant/accused shall not be considered for any remission of this sentence for twenty five years from the date of the judgement of the trial court. (iv) The conviction of the appellant/accused under Section 302 of IPC for the murder of the deceased-Praneeth [D3] is confirmed, however, the sentence of death imposed by the trial court is set aside and instead, the appellant/accused is sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months. It is further directed that the appellant/accused shall not be considered for any remission of this sentence for twenty five years from the date of the judgement of the trial court. (v) The conviction of the appellant/accused for offence under Section 404 of IPC is confirmed, however, the sentence of imprisonment imposed by the trial court on the appellant is reduced to rigorous imprisonment for three years for the said offence. The fine imposed by the trial court shall stand confirmed. If the fine amount is not paid, the appellant/accused shall undergo rigorous imprisonment for a further period of six months. (vi) It is directed that all the above sentences shall run concurrently and the period of detention already undergone shall be set off. Index : yes. [M.J.,J.] [S.N.,J.] Internet : yes. 02..03..2016 kmk To 1.The Sessions Judge, Magalir Neethimandram, Coimbatore. 2. The Inspector of Police, Saravanampatti Police Station, Coimbatore. 3.The Public Prosecutor, High Court, Madras. M.JAICHANDREN.,J.
AND S.NAGAMUTHU.J. kmk Pre Delivery Common Judgment in Referred Trial No.2 of 2015 and Crl. Appeal No.409 of 2015
02..03..2016 Fair/26/02/2016 at 12.38 p.m.