Deivendran vs State

M. Chockalingam, J.—This judgment shall govern these two appeals, viz. Crl.A. (MD) No. 189 of 2009 by the second accused and Crl.A.(MD) No. 322 of 2009 by the first accused, who have stood, charged, tried and found guilty by the Additional District & Sessions Judge, Fast Track Court No. 3, Madurai in S.C. No. 317 of 2007 under Sections 302 r/w 34 and 380 r/w 34 IPC and both of them were awarded life imprisonment u/s 302 r/w 34 IPC and 5 years R.I. u/s 380 r/w 34 IPC.

The short facts that are necessary for the disposal of these appeals can be stated as follows:

a) P.W.1-Krishnaveni is the daughter-in-law of the deceased Ramasamy. She was employed as a Lecturer in Madurai Kamaraj University. She was residing in Plot No. 7, Surya Nagar Extension, Madurai within the jurisdiction of the respondent-Police. P.W.2-Gurusamy is her husband. Both herself and her husband used to leave the house by 8.00 a.m. leaving the deceased in the house alone. She used to return by about 2.00 p.m. everyday for lunch. As usual, on 11.08.2004, both P. Ws.1 and 2 left the house in the morning hours and P.W.1 returned at about 1.45 p.m. When she was just entering the house, she found both the accused persons coming out. Immediately, she questioned them as to whether they came for any work, but without giving any answer to her, they jumped out of the house through the northern portion. When she entered the house, she found the dead body of her father-in-law and also found the Seiko watch gifted to her husband at the time of marriage and kept in the bureau, missing. Immediately, she informed the matter to P.W.2, who rushed over there. Then, accompanied by her husband, she went to the respondent-Police Station where P.W.7-Head Constable received Ex.P1-Complaint from her. On the strength of Ex.P1, a case came to be registered u/s 302 of the Code, in Crime No. 584 of 2004. Ex.P15-Express F.I.R. was despatched to the Court and the copies were sent to the higher-ups.

b) P.W.19-Inspector of Police, on receipt of the copy of F.I.R., proceeded to the spot, made inspection and prepared Ex.P2-Observation Mahazar and Ex.P16-Rough Sketch. Then, he conducted inquest over the body of the deceased in the presence of witnesses and panchayatars and prepared Ex.P17-Inquest Report. He recovered M.O. 2-Pair of chappals which were found outside the house and M.O.3-Sand containing the impression of foot, from the place of occurrence under a cover of Ex.P3-Seizure Mahazar, and sent the dead body to the Madurai Medical College Hospital, Madurai for conducting autopsy.

c) The dead body of the deceased was subjected to autopsy by P.W.18-Doctor, attached to the Madurai Medical College Hospital, Madurai and he issued Ex.P12-Post Mortem Certificate, wherein he opined that the deceased would appear to have died of Asphyxia due to smothering associated with compression of neck 18 to 24 hours prior to autopsy. Thereafter, material objects were recovered from the dead body of the deceased.

d) Pending the investigation, the Investigator arrested both the accused on 12.08.2004 at Varichur Bus Stand. The first accused gave a confessional statement voluntarily and the same was recorded in the presence of witnesses. The admissible portion of the confessional statement of the first accused is marked as Ex.P18. On the basis of the confessional statement, M.O.1-Watch was recovered under a cover of Ex.P5-Seizure Mahazar.

e) P.W.12-Scientific Assistant of the Forensic Science Department, inspected the place of occurrence and took out a print of the right foot using plaster of paris. Thereafter, she took out a print of the right foot of both the accused in the laboratory and instructed the police to send the foot print taken at the place of occurrence and the foot print taken in the Forensic Lab to the Forensic Science Department at Chennai, for comparison and get a report. A sniffer dog was also brought. Thereafter, the investigator also recovered M.O.4-plaster impression of right leg and M.O.5-red soil which was taken by P.W.12-Scientific Assistant, under a cover of Ex.P4-Seizure Mahazar. Then, he sent both the accused for judicial remand.

f) Thereafter, the investigator sent all the material objects to the Forensic Lab for conducting chemical examination. He also sent a requisition to the Judicial Magistrate No. 3, Madurai for the purpose of conducting Identification Parade, under Ex.P7. The Judicial Magistrate No. 3, Madurai conducted Identification Parade where P.W.1 identified both the accused. The Identification Parade Report is marked as Ex.P9.

g) Pursuant to the requisition given by the investigator for conducting chemical examination, two reports were received. One is Ex.P10-Chemical Analyst''s Report and Ex.P20-Serologist''s Report.

h) P.W.19-Inspector of Police, on completion of the investigation, filed the final report on 30.12.2004 under Sections 120B, 393 and 302 IPC against the 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 19 witnesses and relied on 20 exhibits and 8 material objects. On the side of the defence, Ex.D1 was marked through P.W.7 and Ex.D2 was marked through P.W.19. On completion of the evidence adduced on the side of the prosecution, the accused were questioned u/s 313 of Code of Criminal Procedure as to the incriminating circumstances found in the evidence of prosecution witnesses. They denied them as false. No defence witness was examined. 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 punishment as referred to above. Hence, these Criminal Appeals at the instance of the accused/appellants.

Advancing arguments on behalf of the accused/appellants, the learned Counsel, inter alia, have submitted that the prosecution came up with a story that the occurrence has taken place on 11.08.2004 between 12.00 and 1.30 p.m., in which the deceased, aged about 84, was killed by the accused, for which the prosecution had no direct evidence to offer. The learned Counsel further added that the only evidence available for the prosecution was that of P.W.1.

Learned Counsel for both the accused, have further added that in Ex.P1, P.W.1, the Lecturer attached to the Madurai Kamaraj University, even though originally has stated that she used to go to the college in the morning hours and return to the house to take lunch at about 2.00 p.m., she categorically deposed at the time of cross-examination that she was attached to the Evening College. Therefore, according to the learned Counsel, there was no need for her to go to the college in the morning hours and to return back to the house to take lunch in the afternoon. Also, according to Ex.P1, she came to the house at 2.00 p.m., but she categorically deposed in her evidence that she came back at about 1.45 p.m. and at that time she saw both the accused. Hence, according to the learned Counsel, P.W.1 could not have seen the accused at all.

Added further the learned Counsel for both the accused, in the instant case, that according to P.W.1, the first accused was actually working in her house as mason at the time of construction of the compound wall and therefore, she would have very well knew the accused and under the circumstances, there was no need for conducting any Identification Parade, but the same was conducted, which creates a doubt in the prosecution case.

Learned Counsel for both the accused, would further add that a perusal of Ex.P1 would clearly indicate that there is no description given as to the identity of the accused persons, as it has been simply stated in Ex.P1 that two persons aged about 25, were found coming out of the house, and what was all stolen even according to the prosecution, was only a 15-year old seiko watch-M.O.1. The counsel have further submitted that even according to P.W.1, the bureau was kept opened and she used to keep the bureau in open condition. Therefore, all these would go to show that the accused could not have been seen by P.W.1. and the so-called confessional statement recorded from the first accused, pursuant to which material objects were recovered, was a false document and it was created only to suit the case of the prosecution.

Learned Counsel for the second accused/appellant in Crl.A.(MD) No. 189 of 2009 would submit that insofar as A2 is concerned, he was actually sitting and he had no link with the other accused and also he had no intention to share with the other accused, to commit the offence of murder or to steal anything. In such circumstance, according to the counsel for the second accused, the evidence put forth on the side of the prosecution, certainly is unbelievable and therefore, it would be highly unsafe to sustain a conviction and the sentences imposed on him.

Learned Counsel for the first accused/appellant in Crl.A.(MD) No. 322 of 2009 would submit that the date of birth of the first accused is 24.08.1986, and therefore, the first accused had not completed the age of 18 years at the time of occurrence, i.e. on 11.08.2004 and hence it is a fit case where the case should have been split up and it should have been placed before the Juvenile Justice Board for conduct of the trial, since he was a juvenile at the time of occurrence, but the same was not done. In such circumstance, the learned Counsel would submit, that even when the conviction is sustained, the sentences have to be set aside, and this has to be considered by the Court. He also relied on a decision of Chhattisgarh High Court, in the case of Kachharu @ Sushil v. State of Chhattisgarh reported in 2010 (1) Crimes 352, in support of his contention.

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.

It is not in controversy that one Ramasamy, aged 84 years, the father-in-law of P.W.1 and the father of P.W.2, was done to death in an incident which had taken place in the house of P.W.1 between 12.00 and 1.30 p.m. on 11.08.2004. Following the inquest made by the Investigating Officer and preparation of Ex.P17-Inquest Report, the dead body of the deceased was sent for the purpose of autopsy. The dead body was subjected to autopsy by P.W.18-Doctor, attached to the Madurai Medical College Hospital, Madurai and he issued Ex.P12-Post Mortem Certificate, wherein he opined that the deceased would appear to have died of Asphyxia due to smothering associated with compression of neck 18 to 24 hours prior to autopsy. Further, he has also been examined before the Court as P.W.18, and Ex.P12-Post Mortem Certificate also reveals that the deceased died of homicidal violence. These facts were not disputed by the accused/appellants before the Trial Court and hence, the Trial Court had no legal impediment in recording so.

In order to substantiate that the accused persons got entry into the house and committed murder for gain, the prosecution had no direct evidence. It relied only on the evidence of P.W.1. P.W.1 is a part-time Lecturer attached to the Madurai Kamaraj University. She used to leave the house by 8''O clock in the morning and her husband also used to leave in the morning hours and all of them used to leave the house, leaving the deceased alone in the house. On the date of occurrence, according to P.W.1, she left for the college and returned by 1.45 p.m. as usual for taking lunch and when she was just entering the house, she saw both the accused coming out and immediately, she also asked both of them, whether they came for any work. Now, at this juncture, it is pertinent to point out that it is an admitted position that A1 was actually employed in the house as a mason, one month prior to the occurrence. In that circumstance, in the instant case, it is quite natural for her to ask those persons as to whether they came for any work, but without giving any answer, they left the place. Immediately, entertaining suspicion, she entered the house and found the dead body of her father-in-law and she also found a seiko watch stolen. Thereafter she informed the matter to P.W.2, who came to the house and both of them went to the respondent-Police Station and gave Ex.P1-Complaint. On the strength of Ex.P1, a case came to be registered within a short span of time. At this juncture, it is pertinent to point that, it is true that the prosecution had only the evidence of P.W.1. According to P.W.1, she found both of them going out of the house; A1 was already working in the house construction and A2 was a new person. The situation warranted for the conduct of an Identification Parade in the instant case and it was also conducted by the Judicial Magistrate No. 3, Madurai and the Identification Parade Report has also been marked as Ex.P9 and no infirmities or illegalities are found in Ex.P9. Even though the learned Counsel for both the accused/appellants, have brought to the notice of this Court certain discrepancies that when P.W.1 was able to identify all the accused persons within a reasonable time from the time of occurrence, no separate identification of the accused persons was necessary by way of Identification Parade, this Court is of the considered opinion that such Parade conducted by the prosecution would only further support the prosecution case.

The added circumstances are the recovery of material objects and the confessional statement given by A1 to the Investigator in the presence of witnesses, which would only point out the nexus of the accused with the crime in question. It is also pertinent to point out that in the confessional statement marked as Ex.P18, A1 has categorically spoken about A2.

In the instant case, the contention put forth by the learned Counsel for the second accused that the second accused was only just standing and he had nothing to do with the offence, cannot be countenanced, because A1 was actually working as mason in the construction of the house and he had an idea that 84-year old man used to stay in the house alone and he sought the help of another person and both of them have got into the house, which would be clearly indicative of the common intention shared by them for committing the crime of murder. The common intention shared by both the accused has been properly established through the evidence adduced on the side of the prosecution in the manner known to law.

The above reasons, in the considered opinion of this Court, would suffice to sustain the conviction and thus, the prosecution had sufficient evidence in finding the accused/appellants, guilty under Sections 302 r/w 34 and 380 r/w 34 IPC. Insofar as the judgment of the Trial Court, convicting both the accused under Sections 302 r/w 34 and 380 r/w 34 IPC are concerned, nothing is available to disturb the same.

Therefore, insofar as Crl.A.(MD) No. 189 of 2009 is concerned, this Court is of the considered opinion that the conviction and sentences imposed on the second accused/appellant, under Sections 302 r/w 34 and 380 r/w 34 IPC have got to be sustained. Accordingly, the conviction and sentences imposed on the second accused/appellant, are confirmed.

Regarding the first accused/appellant in Crl.A(MD) No. 322 of 2009, as stated earlier, it is brought to the notice of this Court by the learned Counsel for the first accused, that the date of birth of the first accused is 24.08.1986 and the occurrence took place on 11.08.2004, and thus on the date of occurrence, the first accused was a juvenile and hence the sentences imposed on him have to be set aside. A memo verifying and confirming the date of birth of the first accused as 24.08.1986 has also been filed by the learned Additional Public Prosecutor, to that effect. The decision of Chhattisgarh High Court, in the case of Kachharu @ Sushil v. State of Chhattisgarh reported in 2010 (1) Crimes 352, which has been relied on by the learned Counsel for the first accused, in the considered opinion of this Court, is squarely applicable to the facts and circumstances of the present case. Paragraphs 13 to 18 of the above judgment reads as under:

We have already observed in the foregoing paragraphs that the appellant was juvenile on the date and time of the incident as is established from the report of the trial Court on the basis of enquiry conducted u/s 7A of the Act, 2000. Conviction of the appellant u/s 302 of IPC by the learned Addl. Sessions Judge has not been challenged and challenge is only to the sentence part, whereby a juvenile has been sentenced to undergo life imprisonment.

In the matter of Jayendra, the Hon''ble Supreme Court was seized of the matter where a juvenile was sentenced to life imprisonment for the offence committed by him during his childhood. Considering the fact that the offence was committed while the appellant was child and that he had attained the age of 23 years when the appeal was decided, the Hon''ble Supreme Court while upholding his conviction, quashed the sentence imposed upon him and directed his release forthwith.

In the case of Bhola Bhagat, the Hon''ble Supreme Court relying upon the decision of three Judges Bench of the Supreme Court in the matter of Pradeep Kumar v. State of U.P. held that since on the date of occurrence, the appellants had not completed 16 years of age, they should have been dealt with under the U.P. Children Act instead of being sentenced to imprisonment on conviction u/s 302/34 of the Act. However, considering that the appellants were more than 30 years at the time of delivery of judgment, the Hon''ble Supreme Court while sustaining conviction of the appellants under all the charges framed against them, quashed the sentences awarded to them and directed their release forthwith.

In Babban Rai also, the appellants were convicted for murder and sentenced to life imprisonment. Age of the accused persons on the date of occurrence was found to be below 16 years, they were held entitled to protection of 2000 Act and in these circumstances, the Hon''ble Supreme Court upheld the order passed by the High Court whereby conviction of the appellants by the trial Court was upheld and sentence imposed on them was set aside. It has been held in para 5 thus:

So for as convictions of these two appellants, as confirmed by the High Court, are concerned, learned Counsel appearing on behalf of the appellants is not in a position to point out any error in the order of the High Court whereby convictions of the appellants have been confirmed. Having gone through the impugned judgment and the records, we also do not find any ground to hold that the High Court was not justified in upholding the convictions of the appellants. This being the position, we are of the view that the High Court has not committed any error in upholding convictions of the appellants. Now, the question arises in relation to sentences. In view of our aforesaid finding that these two appellants were juvenile on the date of alleged occurrence and they have now attained majority, it would be just and expedient to set aside their sentences and pass an order of releasing them as they cannot be sent to remand home.

In the present appeal also, the appellant has been convicted u/s 302 of the IPC and sentenced to undergo life imprisonment and fine of Rs. 1,000. On enquiry, we find that age of the appellant was less than 18 years and as such, he was also entitled to be dealt with in accordance with the Act of 2000. The date of birth of the appellant has been determined as 14.9.1983 and as such, he has now completed almost 26 years. In these circumstances, following the principles of law laid down in the above cited judgments, we, while upholding the conviction of the appellant u/s 302 of IPC, set aside the sentence imposed on him by the learned Addl. Sessions Judge.

In the result, the appeal is partly allowed. Conviction of the appellant u/s 302 of IPC is upheld, however, sentence of life imprisonment and fine of Rs. 1,000 imposed on him is set aside. The appellant be set at liberty forthwith, if not required in any other case.

Therefore, insofar as Crl.A.(MD) No. 322 of 2009 is concerned, while sustaining the conviction of the first accused/appellant, under Sections 302 r/w 34 and 380 r/w 34 IPC, the sentences of life imprisonment imposed u/s 302 r/w 34 and five years Rigorous Imprisonment imposed u/s 380 r/w 34 IPC are set aside. The first accused/appellant in Crl.A.(MD) No. 322 of 2009 is directed to be set at liberty forthwith, unless his presence is required in connection with any other case.

In the result, Crl.A. (MD) No. 189 of 2009 is dismissed and Crl.A.(MD) No. 322 of 2009 is accordingly, disposed of. Consequently, M.P. (MD) No. 1 of 2010 in Crl.A. (MD) No. 322 of 2009 is closed.