In Re: Diraviam and Muthaiyah

Ratnavel Pandian, J.—Accused 1 and 2, aged about 23 and 48 respectively in Sessions Case No. 61 of 1981 on the file of the Court of

Session, Tirunelveli Division, have directed this appeal challenging the validity and correctness of their conviction recorded u/s 302, I.P.C. under

charge No. 1, the conviction recorded u/s 457, I.P.C. under Charge No. 2, and the conviction recorded u/s 380, I.P.C. under Charge No. 3, and

the sentence of imprisonment for life for the conviction under Charge No. 1, and the sentence of rigorous imprisonment for three years recorded

for the convictions under each of charges Nos. 2 and 3, with a direction that the sentences should run concurrently.

The accusation on the basis of which the three-charges were levelled against the two Appellants-accused are that on 15th July, 1980 at Velio re

village, within the jurisdiction of Srivaikuntam police, both the accused caused the death of one Tiruvadi Ammal, the deceased herein, aged about

70, by strangulating her neck and also by hanging her by a rope and that in the course of the same transaction, the accused committed the offence

of lurking house-trespass by night in order to carry out the above offence of murder and also committed theft of M.O. 1, (gold chain) and M.O. 2

series (Pampadams) from the dwelling house.

To substantiate the above three charges, the prosecution examined P. Ws. 1, to 14, filed Exs. Pl to P18 and marked M. Os. 1 to 17.

The brief facts of the case, as disclosed from the. oral and documentary evidence, can be stated as follows: P.W. 1 is a resident of Vellore

village. The deceased is the daughter of the senior paternal uncle of P.W. 1, and she was residing in one house off on the southern side of the

house of P.W. 1. She was issueless, and a widow. On 15th July, 1980, P.W. 1''s family members, except the daughter of P.W. 1, viz, P.W. 3,

accompanied by P.W. 1''s elder brother''s son P.W. 2 had been to Kurangani village to attend a festival. P.W. 3 was in the house of P.W. 1, and

the deceased was in her house. On the early morning of 16th July, 1980, at about 4 A.M., P.W. 2 alone returned from Kurangani to Vellore. He

went to the house of the deceased; and found that the deceased had not woken up as usual. Surprisingly, even upto 7 A.M.,. the doors of the

house of the deceased were not opened. P.W. 3, tapped at the door, but there was no response. Therefore P.W. 3, reported this matter to P.W.

Then P. Ws 2 and 3 went to the house of the deceased and found a rope hanging on the eastern side of the house from the roof of the house.

P.W. 2, with the help of a ladder, climbed and found the deceased Tiruvadi Ammal tanging on a rope. Immediately P.W. 2, went to, Kurangani

village and informed P.W. 1 about this. P.W. 1 returned to the village along with P.W. 2. thereafter P. Ws. 1 to 4 went to the house of the

deceased and found the deceased hanging. Both the hands were found tied from behind. M.O. 1, a gold chain M.O. 2 series, two gold

Pampadams and M.O. 12 series, cash of Rs. l00 were found missing. P.W. 1 reported this incident to P.W. 5, the Village Munsif, at about 10

p.m. P.W. 5 prepared a carbon copy of Ex. P1 viz., Ex. P2 and also the yadasts, Exs. P3 and P4. He sent Exts. PI and P3. to the Srivaikuntam

Police Station, and Exts. P2 and P4 to the Court of the Judicial Second Class Magistrate, Srivaikuntam. P.W. 12 registered a case on the basis of

Ex. Pl in Crime No. 395 of 1980 on the file of Srivaikuntam Police Station under Sections 302, 457 and 380, I.P.C. Ex. P17 is the printed report.

Express reports were sent to the concerned officials.

On 16th July, 1980, at about 1-45 P.M., P.W. 13, on receipt of the express report, took up investigation. He went to the scene place and

prepared the observation mahazar Ex. P5, and drew the rough sketch of the scene place, Ex. P18.

With the help of the P.W. 9, the photographer, certain photographs marked as M. Os. 14 and 15 were taken. P.W. 13 held inquest over the

body of the deceased between 3 p.m. and 4-30 p.m. and examined P. Ws. 1 to 3. Ex. P6 is the inquest report. At about 4-30 p.m., he sent the

body through P.W. 11 with the requisition Ex P13 addressed to the Medical Officer, to conduct autopsy over the dead body of the deceased. At

about 5 P.M., he seized M Os. 3, 4, 5 and 6 series under Ex. P7. He examined P. Ws. 4 and 9. He sent at wireless message requisitioning the

finger print expert and a detective dog from the police squad. They came. The dog could not give any clue.

P.W. 6, the Medical Officer attached to the Government Hospital. Srivaikuntam, as per the requisition, Ex. P13, commenced the post-mortem

examination on the body of the deceased at about 11 A.M., on 17th July, 1980, and found the following symptoms:

Face congested and swollen. Eyes swollen and closed. Mouth open tongue protruding and swollen. Froth in the nostrils and blaster all over the

body and legs are swollen. No discharge from ears A coin about 1 cm, thick seen around the neck, between chin and larynx, passing around the

neck and at the back of neck it goes upwards. Libia swollen on opening abdomen... Heart 10 oz. congested Lung Rt. 14 ozes Lt. 14 ozes

congested Hyoid broken Larynx lacerated. Stomach weighs 10 ozes. contain 6 ozes of fluid semi sold digested food materials. On sections,

stomach congested. Liver weighs 32 ozes congested. Spleen weighs 3and 1/2 ozes. and congested.

In the opinion of P W. 6, the deceased would appear to have died due to asphyxa due to throttling and then hanging down the body and death

would have occurred about 24 to 32 hours prior to the post-mortem examination.

P.W 13, in continuation of the investigation examined P.W. 6 on 18th July, 1980 On information, he arrested the accused near the tank at

Vellore on 22nd July. 1980 at about 3 p.m. in the presence of P.W 5. When interrogated, At volume red a statement, the admissible portion of

which is Ex P9. A2 was separately examined, and he volunteered a statement, the admissible port on of which is Ex. P10. In pursuance of Ex. P9,

A1, took the police party to a place south of his house, where he dug the earth to a depth of one foot, and took out M.O. 11 series (two coconut

shells) wrapped in M.O. 17. Inside M.O. 11 series, M.O. 1, the gold chain, and one fifty-rupee note two twenty rupee notes and one ten rupee

note (total Rs. 100, marked as M.O. 12 series, were found. They were seized under the Mahazar Ex. P 11.

A2, in pursuance of his confessional statement, Ex. P.10, took P.W. 13 and his party outside the compound of one Valli Thevar, dug put the

ground near a bush, took M.O. 13 containing M.O. 2 series (gold Pampadams) and produced the same. P.W. 13, seized them under Ex P12. The

mahazars, were attested by P.W. 5. A1 took the police party to the shop of P.W. 8, who was then examined, (It is to be noted that P.W. 8 his not

supported the prosecution case and has turned hostile)

As AI had a linear healed abrasion on the upper arm and right elbow joint, he was sent for medical examination, P.W. 7, the Medical Officer

attached to the Government Hospital at Srivaikuntam, examined A1 at about 12-20 P.M., on 23rd July, 1986 and found oft his person two

injuries, vis., superficial linear healed abrasion of about 1/4"" in length over the medial side of right upper arm in its Tower 1/3rd and superficial

irregular linear abrasion over the posterior aspect of right elbow joint. In the opinion of the Medical Officer, both the wounds were simple in

nature, and they could have been caused about 7 days prior to his examination. A1 is stated to have told P.W. 7, that he sustained the injuries.

while climbing up the wall of Tiruvadi Animal''s house at Vellore on the midnight of 15th July, 1980. Even at the outset we would like to mention

that this statement which is stated to have been made by Al after he was arrested by the police, is totally inadmissible, and the learned Sessions

Judge ought not to have admitted the same in evidence.

P.W. 14, after verifying the investigation done by PW. 13, and after examining P.W. 7 on 6th September, 1980, filed the charge-sheet against

the accused on 19th October, 1980.

Both the accused, when questioned u/s 313, Code of Criminal Procedure, as regards the incriminating pieces of evidence appearing against

them, denied the offence. They also dented having made any statement to the police and having produced the material objects concerned in the

case.

The learned trial Judge, believing the evidence relating to the recovery of the material objects and also strongly relying on the alleged statement

of A1 made to P.W. 7, convicted the accused and sentenced them as aforesaid. Hence the appeal.

Mr. V. Gopinath, learned Counsel appearing on behalf of the Appellants, after taking us through the recorded evidence, contended that the

learned trial Judge was unjustified in placing reliance on the inadmissible evidence for recording the conviction as against A1. He would add that

the evidence let in by the prosecution as against both the accused is only the alleged recovery of the gold chain and the gold, pampadara (M Os. 1

and 2 series) and that the evidence on the side of the prosecution relating to the recovery of these material objects is not worthy of acceptance. He

finally stated that even accepting the evidence relating to the recoveries made one week after the occurrence, that would not lead to a safe

conclusion that these two'' Appellants were responsible for the murder of the deceased.

The fact that the deceased was done to death due to external violence cannot be disputed. P. Ws. l, to 5 have deposed that the hands of the

deceased had been tied from behind and she was banging by a rope. Therefore, it is clear that the victim was first of all done to death by

strangulation and then hanged by a rope, obviously, the culprits, whoever they might have been, should have thought of giving a misleading

impression that the woman had committed suicide. But as ill-luck would have it, they have forgotten that they have tied the hands of the deceased

from behind. From the medical evidence as well as from the circumstances, we conclude that the poor old lady had become a victim at the hands

of the assailants and that she was done to death by strangulation.

P.W. 3 would claim to have seen the deceased alive upto 9 p.m., on the previous night. It was only the next morning at about 7 a.m. it was

found that she was hanging by rope. Therefore, the occurrence should have taken place between 9 pa, and 4 a.m. when P.W. 2 came to the house

of the deceased. Now, the question that would arise for our consideration is as to whether there is sufficient evidence to sustain the conviction

recorded by the learned trial judge either against both the accused or any one of them under all the charges or any of the charges. The evidence

that stands against A1 is the recovery of M.O. 1, the gold chain, and M.O. 12 series (cash). In addition to that, the prosecution has attempted to

place reliance on a statement alleged to have been made by A1 to the Medical Officer, P.W. 7. Barring these two pieces of evidence, there is no

other evidence against A1. As against A2, the prosecution has let in only one circumstantial piece of evidence, viz., the alleged recovery of M.O.

2, in pursuance of his confession, Ex. P10. Barring that, no other circumstance stands as against A2.

Before coming to the alleged recovery of the material objects, we shall first of all examine the alleged statement by A1 to P.W. 7. Admittedly,

A1 was arrested on 22nd July, 1980 at about 3 p.m. by P.W. 13 and his party in the presence of P.W. 5, the Village Munsif. A1 was produced

before the Medical Officer, P.W. 7 at about 12-20 P.M. on the next day, viz, 23rd July, 1980, as evidenced by P16. the wound certificate issued

by P.W. 7. of course, the medical officer, P.W. 7 would state that she found two superficial linear abrasions, of which one was a healed one. But

the question is how A-1 sustained the injuries. The prosecution has not let in any evidence to show as to how he sustained the injuries. But, it had

made an attempt to rely only on a statement alleged to have been made by A-1 to P.W. 7. As pointed out supra, at the time when A-1 was

produced before the medical Officer, he had already been arrested and brought under the custody of the police, and the requisition Ex. P-15, was

also given to the Medical officer only by the police. It is very surprising to note that even in the requisition Ex. P.15, the Inspector of Police, P.W.

13, had made mention that A-1 had sustained the injuries while climbing the wall of the house of the deceased. Presumably, P.W. 7 had

incorporated in Ex. P-l6, the wound certificate, the averment made in Ex. P.15. But unfortunately, P.W. 7 had stated that A-1 told her as to how

he sustained, the injuries. It is Settled law that such a statement made by an accused after he had been arrested by the police is totally inadmissible

in evidence. Therefore, we completely eschew this piece of evidence from consideration.

Shorn of this statement, we have got only the evidence relating to the recoveries. The recoveries said to have been made by P.W. 13 in

pursuance of Exs. P. 9 and P. 10, the respective admissible portions of the statements of A-1 and A-2, are the gold chain, M.O. 1, and the

pampadams, M.O. 2 series. They were seized only on the evening of 22nd July, 1980, i.e., seven days after the occurrence.. Barring these

recoveries, as we have stated supra, there is no evidence against both these accused, either with regard to their movements near the scene place

before the murder or after the murder. M.O. 1 and M.O. 2 series are identified by P. Ws. 1 and 3 as belonging to the deceased. None of the

accused would come forward with an explanation as to how they came into possession of these articles belonging to the deceased. Therefore, we

hold that these two M. Os. belonged to the deceased and they were in the possession of the accused persons. The question would be whether the

presumption u/s 114, Illustration (a), of the Evidence Act, could be drawn in this case for concluding that these two persons were the perpetrators

of the crime. It is pointed out in In re, In Re: Thangaswami, that in the cases of this nature, there must be some further evidence establishing the

connection between the accused and the victim in relation to the time, locality of the offence and the crime itself, and that there must be some other

evidence to show that the offences of murder and robbery are the integral parts of the, same transaction. Simply because the accused have not

come with an explanation as to how they came into possession of the properties belonging to the deceased, no conceivable or rational conclusion

could be drawn that, they are the murderers. At the worst, it would show that they had been in possession of the ornaments belonging to the

deceased.

The Supreme Court in, Joga Gola Vs. State of Gujarat, has observed that if an accused is found in possession of a property belonging to the

deceased and if no evidence is forthcoming to show that the accused had murdered the deceased, the accused could be held liable only for the

offence u/s 411, I.P.C, but hot for murder. (See also Nagappa Dondiba Kalal Vs. State of Karnataka, .

When the facts of the present case are examined in the light of the principles laid down by the Supreme Court in the above said decisions, the

accused in the present case must be held guilty of the offence punishable u/s 414, IPC. in that they had been in possession of the properties which

they know or had reason to believe to be stolen. Hence, we find the accused guilty of the offence punishable u/s 414, I.P.C. under charge No. 3

and not u/s 380 , I.P.C.

So far as charge No. 2 is concerned, there is no evidence that both the accused committed the offence of lurking house-trespass.

In the result, the convictions recorded by the leaned trial Judge as against each of the Appellants for the offences under Sections 302 and 407,

I.P.C., under charges Nos. 1 and 2 and the sentences imposed thereunder are set aside,-and Appellants are acquitted under those charges. The

conviction recorded by the trial court under charge No. 3 is modified into one u/s 414, I.P.C. from one u/s 380, I.P.C. and the Appellants are

each sentenced to suffer rigorous imprisonment for three years. The appeal is partly allowed and partly dismissed as stated above.