Ramakrishnan vs State

M. Chockalingam, J.—This Appeal challenges the judgment of the Sessions Division, Mahalir Neethi Mandram, Tirunelveli dated

29.12.2009 made in S.C. No. 315 of 2007 whereby the sole accused/appellant stood charged, tried and found guilty for the offence under

Sections 449, 376, 302 and 397 of the IPC and awarded punishment as follows:

-----------------------------------------------------------------------------

Conviction Sentence

under

Sections

-----------------------------------------------------------------------------

449 of the to undergo seven years rigorous

IPC imprisonment and to pay a fine of

Rs. 1,000/-, in default, to undergo

three months simple imprisonment

-----------------------------------------------------------------------------

376 of the to undergo seven years rigorous

IPC imprisonment and to pay a fine of

Rs. 1,000/-, in default, to undergo

three months simple imprisonment

-----------------------------------------------------------------------------

302 of the to undergo life imprisonment and to

IPC pay a fine of Rs. 1,000/-, in default,

to undergo three months'' simple

imprisonment

-----------------------------------------------------------------------------

397 of the to undergo seven years rigorous

IPC imprisonment.

-----------------------------------------------------------------------------

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

(i) PW.1 and PW.4 are the mother-in-law and father-in-law of the deceased respectively. PW.5 is the husband of the deceased. The marriage

between PW.5 and the deceased took place in the year 1997. they got two children. The first child was under the care of PW.1 and PW.4. PW.1

and PW.4, and the family of PW.5 was also residing in the same street. PW.2 was residing in the Upstair portion of the house wherein PW.5 was

residing. PW.3 was a neighbour.

(ii) PW.5, a salesman by profession, used to go to his office at 8.30 a.m, and return to the house at 7.00 p.m,. on 12.3.2007, as usual PW.5, left

for his duty at 8.30 a.m. The accused/appellant was a cable operator who knew that the deceased was in solitude during these hours and taking

advantage of the fact that she was in solitude, the accused/appellant got inside, raped her and caused her death and fled away from the place of

occurrence.

(iii) Insofar as PW.6, PW.7, PW.8, PW.11 and PW.20 are concerned, at about 1.00 p.m., on the date of occurrence, they all saw the

accused/appellant in the said street where PW.5 and the deceased were residing. PW.9 and PW.19 saw the accused coming out of the house of

the deceased on the date of occurrence. PW.2, who was in the Upstair, had heard the cry of the child at about 3.00 p.m. She immediately came

down. She knocked the doors. Doors were not open. Since she informed to PW.4 who was the mother-in-law of the deceased came to the house

of PW.5 and when they opened the door, got inside and they found the dead body of the deceased. PW.4 informed to PW.5 husband of the

deceased, who rushed to the house and found the dead body of his wife.

(iv) Then, PW.1 Proceeded along with PW.4 to the respondent police station and gave a complaint Ex.P.1 to PW.25 Sub-Inspector of Police. On

the strength of Ex.P.1 report, the case came to be registered in Crime No. 181 of 2007 under Sections 302 and 380 of the IPC. Express FIR

Ex.P.24 was despatched to the Court.

(v) PW.28, Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared an Observation Mahazar Ex.P.5

and a Rough Sketch Ex.P.30 in the presence of witnesses. He conducted inquest on the dead body of the deceased and prepared an Inquest

Report Ex.P.31. The dead body was photographed through PW.23 and Photos were marked as MO.19(Series) and MO.20 (Series).

(vi) Further investigation was taken up by PW.29. Pending investigation, he arrested the accused on 19.3.2007 and he came forward to give a

confessional statement in the presence of PW.12, Village Assistant and the admissible part of the Confessional Statement was marked as Ex.P.12.

At the time of arrest, pursuant to the confessional statement, the accused produced MO.4 Gold ear stud, MO.5 Thali, MO.8 Cell Phone of the

deceased and MO.18 Simcard.

(vii) Subsequently, he took up the police party to a finance company in which PW.13 was the manager, from whom, MO.7 Gold Chain was

recovered under Ex.P.11 Mahazar. All these material objects were identified by PW.5. Then the accused was sent for judicial remand.

(viii) On completion of the investigation, the investigating officer filed a final report. The case was committed to the Court of Sessions. Necessary

charges were framed against the accused.

In order to substantiate the charges levelled against the accused, the prosecution examined 29 witnesses and relied on 36 Exhibits and 15 MOs.

On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 Cr.P.C. on the incriminating circumstances

found in the evidence of the prosecution witnesses, which was denied on the part of the accused. Neither defence witness was examined nor

document was marked on the side of the defence. The trial Court, after hearing the arguments advanced by either side and on considering the

materials available on record, took the view that the prosecution has proved its case beyond reasonable doubts and found the accused/appellant

guilty of the charges levelled before the Trial Court and awarded punishment as referred to above.

Advancing the arguments on behalf of the accused/appellant, the learned Counsel appearing for the appellant would submit as follows:

(i) According to the prosecution, the occurrence had taken place between 12.45 and 3.00 p.m., on 12.2.2007. No one had witnessed the

occurrence. Insofar as PW.1, PW.2, PW.3 and PW.4 and PW.5 are concerned, they have deposed that the occurrence of murder and theft had

taken place, beyond which they did not speak any thing.

(ii) Insofar as PW.6, PW.7, PW.8, PW.9, PW.11 and PW.20 are concerned, they all saw the accused in the street where PW.5 was living with

his wife and that cannot be a circumstance on the basis of which complicity of the accused could be fixed.

(iii) The prosecution relied on the evidence of PW.9 and PW.19 that they saw the accused coming out of the house of the deceased at 1.00 p.m.,

on the date of occurrence. These witnesses were actually chance witnesses and they did not explain how they happened to be in that place at that

time. Under the circumstances, no reliance can be placed on their evidence.

(iv) Added further the learned Counsel, the investigation was taken up by PW.28 but the very next day, investigation was transferred to PW.29

and all documents were created. A perusal of the documents would clearly indicate that the investigator had no evidence at all. He has created the

documents in order to foist the criminal liability on the accused/appellant.

(v) Insofar as the evidence of rape is concerned, Post-Mortem Doctor PW.26 has categorically stated that there was no symptom of rape and

before the trial Court, no evidence was placed pointing to the fact that there was any commission of rape. Under the circumstances, the finding of

the trial Court in that regard was erroneous.

(vi) Insofar as the incident of murder is concerned, there was no evidence pointing to the guilt of the accused. The prosecution relied on the

recovery of Material Objects. According to the investigator, the accused was arrested on 19.3.2007. He came forward to give a confessional

statement and he produced MO.4 Gold ear stud, MO.5 Thali, MO.8 Cell Phone of the deceased and MO.18 Simcard. The witness who was

examined for this purpose was PW.12 Village Assistant. The evidence of PW.12 Village Assistant would clearly indicate that such a confessional

statement could not have been given and the confession could not have been made.

(vii) Apart from that, the investigator would clearly state that he took the police party to the finance company where PW.13 was the manager and

MO.7 Gold Chain was recovered. According to PW.13, originally, the accused pledged a gold chain on 19.2.2007. On 13.3.2007 also, the

accused came to that shop and pledged MO.7 Gold chain for a sum of Rs. 40,000/-. According to the investigator, two pledge receipts were

available. The latter pledge receipt marked as Ex.P.34 would clearly indicate that it was not at all signed by the accused. In that regard, no

explanation was forthcoming from PW.13 or the investigator.

(viii) Thus, it would quite clearly indicate that the documents were created for the purpose of the case. In the absence of evidence, the recoveries

pursuant to the confessional statement as if made by the accused also cannot be accepted. Thus, in the instant case, the prosecution case suffered

by the lack of evidence but the trial Judge has taken an erroneous view. Therefore, in view of these doubts, which are actually reasonable, the

accused/appellant is entitled for acquittal in the hands of this Court.

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 the wife of PW.5 was done to death in the incident that took place in the noon hours; following the registration of the

case by the Sub-Inspector of Police PW.25, investigation was taken up by PW.28 and the dead body was subjected to post-mortem and PW.26

has given a Post-Mortem Certificate Ex.P.26 and gave his final opinion in Ex.P.29 that the deceased would appear to have died of complications

of multiple injuries sustained. Four charges were levelled against the accused/appellant before the trial Court. Firstly, that he has committed

robbery, after making a criminal tress pass into the house of PW.5, he committed rape on her and also murdered her before leaving the place.

At the outset, it has to be pointed out that insofar as the charge of rape is concerned, the prosecution had no evidence to offer even the evidence

of Post-Mortem Certificate Ex.P.26 was contrary to the case of the prosecution in that regard. The examination of the Post-Mortem Doctor

PW.26 did not speak to the fact that there was a symptom of rape at all. Apart from that, no material was placed before the Trial Court to accept

the case of alleged rape. Under the circumstances, that part of judgment of the trial Court in finding the accused/appellant guilty in respect of the

charge of rape has got to be set aside.

Insofar as the other charges are concerned, on scrutiny of the materials, the court is of the considered opinion that the charges remain proved.

Admittedly, the accused/appellant was the Cable Operator. It is quite clear that PW.6, PW.7, PW.8, PW.9, PW.11, PW.19 and PW.20 are

all residents of that area. They knew the accused/appellant very well. Equally, PW.9 and PW.19, who were the residents in the street have

deposed that they saw the accused/appellant coming out of the house of the deceased at about 1.00 p.m., on the date of occurrence. Actually, the

occurrence had taken place between 12.45 noon and 3.30 p.m. It is also pertinent to point out that on the date and time of occurrence except the

deceased and child, no body else was in the house.

The evidence of the first set of witness is pointing to the fact that they found the accused in the street and the evidence of PW.9 and PW.19 is

indicative of the fact that the accused was coming out of the house. Under the circumstances, one would expect an explanation from the

accused/appellant how he happened to go into the house of the deceased but no explanation was forthcoming from the accused.

Added circumstances against the accused/appellant is the recovery of MO.4 Gold ear stud, MO.5 Thali, MO.8 Cell Phone of the deceased

and MO.18 Simcard. They were all recovered from the accused/appellant at the time of arrest, pursuant to the confession. Regarding the

confession and recovery of these Material Objects, PW.12 Village Assistant was examined. Despite the cross-examination in full, the evidence

remains unshaken. Under the circumstances, no reason was brought-forth why he should come forward to give evidence in favour of the

prosecution or PW.5 or against the accused. Apart from the above, the accused/appellant took the investigator to the finance company where

PW.13 was employed as manager, wherefrom MO.7 Gold Chain, which belonged to the deceased, was actually recovered.

The evidence of PW.13 was clear to the effect that the accused/appellant was not known to him and there was one Kannan, who was already

known to PW.13 and the accused brought him for his identity and he pledged the jewel on 19.2.2007 and thereafter, the accused came on

13.3.2007 and pledged MO.7 for Rs. 40,000/- and he also redeemed the first pledge made on 19.2.2007.

Now the learned Counsel for the appellant would make much comment on the pledge receipt, which was marked as Ex.P.34 that it did not

contain the signature of the accused. A perusal of Ex.P.34 would indicate that the signature of the accused/appellant was not obtained. But, at the

same time, insofar as earlier pledge made by the accused/appellant on 19.2.2007 is concerned, pledge receipt was also recovered from PW.13

and the same was also marked as Ex.P.15, there also the signature of the accused/appellant was not obtained in the respective column. Apart from

that, the evidence of PW.13 is clear that the accused/appellant was introduced by one Kannan. All would clearly indicate that the evidence of

PW.13 is true and acceptable. Apart from that, he has explanation to offer how the jewels belonged to the deceased came to his custody.

Now, at this juncture, the learned Counsel for the appellant would submit that there is no evidence for rape or murder and if at all, the accused

was in custody of the jewels which belonged to the deceased, at best, he could be found guilty u/s 411 of the IPC.

But the Court is unable to agree with the learned Counsel to the above said contention. In the instant case, the commission of theft and murder

has taken place at the same time. The evidence of the above witnesses clearly indicate that the accused was found in the street and also coming out

from the house of the deceased at the relevant point of time. So long as the murder and also theft had taken place at the same time, no one else

than the accused/appellant could have committed the murder. Under the circumstances, the contention of the learned Counsel for the appellant

cannot be accepted.

Hence, the judgment of the Trial Judge insofar as the conviction and sentence under Sections 449, 302 and 397 have got to be sustained and

accordingly, sustained. The sentences awarded are directed to be run concurrently. Insofar as the charge of rape is concerned, the prosecution

lacked evidence and the trial Judge has taken an erroneous view and hence, the accused/appellant is acquitted of the charge u/s 376 of the IPC

and if the fine amount imposed by the trial Court was already paid by the accused/appellant, the same shall be refunded to him. Accordingly, the

Criminal Appeal is disposed of.