S. Asokan vs State

M. Karpagavinayagam, J.—Ashokan, the appellant herein was convicted for the offences under Sections 302 and 404 I.P.C. and

sentenced to undergo life imprisonment and to pay a fine of Rs. 1000/- for offence u/s 302 I.P.C.; and imposed a fine of Rs. 500/- for offence u/s

404 I.P.C. Challenging the same, this appeal has been filed.

The facts in brief leading to the conviction are as follows:

(a) The deceased Kannammal, aged about 65 years was living alone at Nellikuppam Mottur. P.W. 1 Muniammal, the daughter of the deceased

was residing at Raghunchapuram along with her husband Venda. P.W. 2, P.W. 3 Geetha, P.W. 4 Poongodi, P.W. 5 Kanniyan and P.W. 6

Vijayan are all residing at Nellikuppam Mottur.

(b) The deceased Kannammal came to the house of her daughter Muniammal at Raghunchapuram on 19.11.1997 to attend a function and she

came back to her village on 21.11.1997. Accused Asokan was residing in the next house of the deceased and used to help the deceased by

attending to her work. On 22.11.1997 between 1.00 p.m. and 2.00 p.m., the accused came to the house of the deceased and at that time, the

deceased was found cutting onion vegetables. Taking advantage that she was alone in the house, accused, with a knife, gave a cut on the neck of

the deceased and caused her instantaneous death. He removed the ear stud and nose screws and put the body in a pit inside the house and filled

the same with sand.

(c) Thereafter, he came out of the house. He then went and informed P.W. 2 residing nearby that Kannammal, the deceased was not found in the

house and he was going to Bangalore and that Kannammal could be looked after by her till he comes and so saying, he went away. On 24.11.97

at 12 noon P.W. 1 Muniammal, the daughter of the deceased came to the house of the deceased. The house of Kannammal was found open. She

did not find her mother inside the house. She enquired with her neighbours about the whereabouts of her mother. P.W. 2 to P.W. 5 denied

knowledge about her whereabouts stating that they thought that the deceased would have gone to the house of P.W. 1 at Raghunchapuram. P.W.

1 searched for her in other places. Since she was not traceable, P.W. 1 came back to the house of the deceased. When she was sitting in front

portion of the house of the deceased, she felt foul smell emanating from inside the house. She opened the room, went inside and found fresh mud

near the oven and noticed the breast portion of her mother inside the mud. On being shocked, P.W. 1 raised a hue and cry and came out of the

house.

(d) On hearing the cry of P.W. 1, the neighbours came inside the house and saw the breast portion of the mother of P.W. 1 inside the mud.. At

that time, P.W. 2 told P.W. 1 that the accused had gone to Bangalore and told her to look after the deceased as she was not then available, P.W.

2 Geetha further informed P.W. 1 that on 22.11.1997 at about 1.00 p.m., the deceased went to the house of P.W. 4 and took meals and went

back to her home. Since the accused was residing along with P.W. 1''s mother, the deceased P.W. 1 strongly suspected that the accused would

have murdered her mother. Therefore, she went to the police station and gave a complaint Ex.P. 1 on 24.11.1997 at 3.00 p.m. to P.W. 16,

Inspector of Police. The same was registered for the offence u/s 302 I.P.C. Ex.P. 13 is the first information report.

(e) P.W. 16, Inspector of Police, came to the scene of occurrence at about 5 p.m., prepared the observation mahazar and the rough sketch. He

sent a requisition to P.W. 12 Tahsildar to come to the scene of occurrence to exhume the dead body and conduct inquest. Accordingly, P.W. 12

came to the scene of occurrence and conducted inquest from 12 noon to 2 p.m.

(f) On 25.11.1997 the body was handed over to P.W. 9, Doctor. The Doctor conducted post-mortem on the same day and noticed that there

was a cut injury in a crescent shape over the back of the neck and an abrasive contusion over the right side parietal region scalp. She issued post-

mortem certificate Ex.P. 17 and gave final opinion in Ex.P. 27 that the deceased would have died of shock and haemmorrhage due to ante-mortum

cut injuries on the cervical bone and blood vessels of neck.

(g) P.W. 16, Inspector of Police took up further investigation and examined the witnesses. He altered the offence into one under Sections 302 and

380 I.P.C. On 26.11.1997, the accused approached P.W. 6 Vijayan and informed the incident and on the basis of his extra judicial confession

Ex.P-8 , P.W. 6 took him and produced him before the Police. P.W. 16, Inspector of Police recovered from the accused Ex.P. 9., the receipt for

having pledged the jewels by the accused. At 4.45 p.m., in pursuance of the confession of the accused, P.W. 16 Inspector of Police recovered

M.O. 5, knife. Further, he recovered M.O. 4, M.O. 15 to M.O. 18 the clothes and the weapons. at 7.00 p.m. As pointed out by the accused, the

Pawn Broker, P.W. 8 Devan was interrogated by P.W. 16. The Pawn Broker told the Police that the accused pledged the jewels to him. On the

basis of the said statement from P.W. 8 Devan, M.O. 1 ear-stud, M.O. 2 nose screw with 3 white stones and M.O. 3 nose screw with 4 white

stones were recovered.

(h) P.W. 16 sent Ex.P-28 requisition to the Judicial Magistrate to record confession statement of the accused u/s 164 Cr.P.C. Accordingly, on

10.12.1997 P.W. 11 Judicial Magistrate, Arcot recorded Ex.P-29, confessional statement from the accused.. As per the order of the learned

Judicial Magistrate, the accused was examined by Radiologist. Accordingly, Dr. M.J. Srinivasan, after examination, issued Ex.C-1 certificate giving

an opinion that the age of the accused would be above 16 years and below 17 years.

(i) The material objects were then sent for chemical examination. After completing the investigation, P.W. 16 filed the charge sheet against the

accused.

(j) The trial Court framed charges against the accused for the offences under Sections 302 and 404 I.P.C.

(k) During the course of trial, on the side of the prosecution, P.Ws. 1 to 16 were examined, Exs.P 1 to P.40 were filed and M.Os. 1 to 22 were

marked.

(l) The accused was questioned u/s 313 Cr.P.C. with reference to the incriminating materials available against him. The accused replied that he had

not committed the offence alleged and he was in Bangalore during the relevant time and the Police Constables came to Bangalore and arrested him

and on their compulsion, he gave the confession to the learned Judicial Magistrate and as such, he is innocent.

(m) The trial Court, on appreciation of the entire evidence available on record, found the accused guilty of offences under Sections 302 and 404

I.P.C. and sentenced him there under. Hence this appeal.

Mr. S. Illamparithi, learned counsel for the appellant would mainly contend that the entire trial conducted by the Principal Sessions Court,

Vellore, is illegal, in view of the fact that the accused is a juvenile on the date of the offence and as such, the trial conducted held by District Court

is not valid in law. He would further contend that before the trial, the accused was detained in the juvenile home and when the age was considered

by the committal Court, the committal Court gave a finding that he was a juvenile and despite the said finding, the District Court, after committal,

conducted a fresh enquiry and gave a finding merely on the basis of the opinion of the Doctor, without considering the other materials found on

record that the accused was not a juvenile on the date of the offence. As such, this Court may set aside the judgment impugned and remand the

matter for conducting an enquiry for determining the age of the accused. In regard to the merits, it is contended that the circumstances putforth by

the prosecution are not sufficient to hold that the accused was guilty of the offences under Sections 302 and 404 I.P.C.

We have heard learned Additional Public Prosecutor on these aspects.

We have carefully considered the submissions made by the counsel for the appellant and perused the records.

In regard to the question with reference to the determination of age, we have been brought to notice that the committal Magistrate, without

conducting any enquiry on the basis of the School Certificate signed by some person on behalf of the Headmaster of the School, concluded that

the accused was a juvenile, even though the Doctor''s certificate was to the effect that he was above 16 and below 17 years. After committal, the

District Court wanted to conduct a full-fledged enquiry. Therefore, it examined, Dr. M.J. Srinivasan, who conducted Ossification test on

5.10.1998 and gave certificate. He was examined in chief and in cross, through whom Exs. C1 and C2 were marked on the basis of the enquiry,

considering the evidence adduced by C.W. 1 and Exs C1 and C2, the trial Court passed a detailed order on 13.10.1998 determining the age of

the accused as above 16 years and declared that the accused was not a juvenile.

Further, it is now brought to the notice of this Court by Mr. E. Raja, learned Additional Public Prosecutor that the said order dated 13.10.1998

by the District Court was challenged before this Court in Crl.R.C. No. 1400/98. This Court by the order dated 16.3.1999 after hearing the

counsel for the accused and the Public Prosecutor and on considering the merits of the said impugned order, found that the said order is perfectly

justified and dismissed the said revision. Only after disposal of the same, the trial has been conducted. As a matter of fact, even during the course

of trial, no fresh materials were placed before the trial Court to establish that he was a juvenile. The cross examination of all the witnesses would

indicate that the only defence putforth by the accused is that he had not involved in the offence and nothing more.

Learned counsel for the appellant would state that due to the mistake of the lower Court counsel, question relating to the age had not been

raised before the trial Court. This may not be correct, in view of the fact that the order was passed by the District Court only after conducting

proper enquiry u/s 7(3) of the Juvenile Justice Act on 13.10.1998, which has also been challenged in the revision by the counsel for the accused

and the same was ultimately dismissed. Therefore, this point relating to the determination of the age had already been decided by this Court and the

same has become final. Therefore, there is no merit in the said contention.

Let us now come to the materials available on record placed by the prosecution as to the offences committed by the accused. Admittedly, there

is no direct evidence. The entire case rests upon the circumstantial evidence. If the circumstances putforth by the prosecution have been clearly

established and they would form a complete chain, then on the basis of those circumstances, the Court can convict the accused.

The following circumstances are relied upon by the prosecution.

i) The accused was last seen at the house of the deceased.

ii) The extra judicial confession made by the accused before P.W. 6

iii) On the arrest of the accused , M.O. 1 to M.O. 3 jewels were recovered in pursuance of the confession, along with M.O. 5. Knife.

iv) Judicial confession given by the accused before P.W. 11 Judicial Magistrate and

v) Medical evidence.

There is no dispute in the fact that both the accused and the deceased were residing in the same house containing two rooms. One room was

occupied by the deceased and another room was occupied by the accused. Admittedly, the body was recovered from the pit which was inside the

room in which the accused was staying. On the date of the occurrence, i.e. on 22.11.1997 at about 2 p.m. the accused told P.W. 2 that he was

going to Bangalore and asked her to look after the deceased till he comes back. At about 1 p.m. on the same day, the deceased went to the house

of P.W. 4 Poongudi and took her meals and came back. This has been spoken to by P.W. 2 and P.W. 4. Therefore, the occurrence must have

taken place between 1.00 p.m. and 2.45 p.m. Ex.P. 17 post mortem certificate issued by P.W. 9 would show that the stomach contained

undigested food particles. When the relevant witnesses were cross examined, this aspect of the evidence has not been challenged.

The next circumstance is the extra-judicial confession made by accused to P.W. 6. According to P.W. 6, on 26.11.1997 the accused who is a

local resident, appeared before him at 2.30 p.m. and had stated that he murdered the deceased Kannammal, since he had no money for expenses

and had to discharge the loan of Rs. 500/-. He cut the deceased and removed all the jewels that she was wearing and buried the body in the pit

and took away the blood stained clothes of the deceased. The accused had stated to P.W. 6 that the jewels were sold by him to the Pawn broker.

According to P.W. 6, the accused is well known to him. When P.W. 6. was in the box, he identified the accused. Further, this aspect of the

evidence has not been challenged, while P.W. 6 was cross-examined. As such there is nothing to indicate that P.W. 6 speaks falsehood against the

accused.

The next circumstance is arrest and recovery. P.W. 16 Inspector of Police arrested the accused who was produced by P.W. 6 Vijayan From

the accused, Ex.P9 receipt, for having pledged the jewels was recovered. In pursuance of the confession, M.O. 5 knife and M.O. 15 crow bar

were recovered. Then, he told P.W. 16 that he sold the jewels to P.W. 8 Pawn broker. In pursuance of the said statement, P.W. 16 Police

Officer and others were taken to P.W. 8 Pawn broker, who told P.W. 16 that the accused came and pledged the jewels, namely M.O. 1 one pair

of gold stud, M.O. 2 small nose screw with 3 white stones and M.O. 3 small nose screw with 4 white stones. The jewels were identified by P.W.

1 as that of the deceased. On going through the evidence of P.W. 7 the mahazar witness, P.W. 16 and P.W. 8, it is clear that only on the basis of

the information given by the accused, the knife as well as the jewels of the deceased were recovered. The occurrence had taken place on

22.11.1997. The body was recovered on 25.11.1997 and found that the jewels were missing. With reference to the missing of the jewels, P.W. 1

specifically stated in Ex.P. 1 complaint. Within a few days after the date of occurrence, i.e. On 26.11.97, the jewels of the deceased were

recovered from the accused. Though, it has been established that the jewels were recovered from the accused, the accused never gave any

explanation with regard to possession of the same.

The next circumstance would relate to the judicial confession. The accused was produced before P.W. 11 Judicial Magistrate. After observing

all the formalities, Ex.P-29 judicial confession was recorded on 10.12.1997. A reading of the confession as well as the evidence of P.W. 11 would

clearly indicate that after giving suitable warning by the Judicial Magistrate and also after observing all the formalities required as per the law, the

confession was recorded by P.W. 11. The deposition of P.W. 11 and Ex.P29 confession proceedings, would clearly reveal that the accused was

given sufficient opportunity and time to think over before giving the confession statement. As such there is no difficulty in holding that Ex.P29

statement is a voluntary one. Furthermore, as indicated above, only on the basis of the confession, the jewels which were stolen by the accused,

were recovered and this has been clearly stated in the confession recorded by the Judicial Magistrate on 10.12.1997. It is noticed that arrest and

recovery were made on 26.11.1997 and even after 14 days, the accused was ready to give confession with reference to the murder and sale of

the stolen jewels to the Judicial Magistrate on 10.12.97.

The last circumstance relied upon by the prosecution is the medical evidence. According to P.W. 9 Dr. Prema, she came to the spot as

requested and conducted post-mortem on the body of the deceased on 25.11.1997 at 2.00 p.m. She found a cut injury in a crescent shape over

the back of neck and an abrasive contusion of dark black colour over the right side parietal region. She gave opinion in the post-mortem certificate

Ex.P17 that the deceased would appear to have died of shock and haemorrhage due to antemortem cut injuries to cervical vertebral bones C5 and

C6 and cut injury to blood vessels of neck about 72 to 78 hours prior to post-mortem examination. She would state while deposing before the

Court that the crescent shaped injury found on the back of the neck would have been caused by M.O. 5 knife. She would further state that the

arteries and veins were cut and the death has occurred due to the cut injuries on the neck causing fracture in vertebral bones C5 and C6. This

medical evidence would also corroborate the other evidence such as extra-judicial confession, judicial confession and the recovery of M.O. 5 knife

from the accused. Therefore, it has to be held that the medical evidence also has been clearly established.

Thus, it is clear that all the circumstances discussed in the earlier paragraphs put together would clearly indicate that every circumstance against

the accused has been clearly established and they would form a complete chain without any missing link pointing to the guilt of the accused without

any hypotheses of his innocence. Therefore, we are of the view that the prosecution has established its case as against the accused beyond

reasonable doubt and as such, the appeal has no merits and the same is liable to be dismissed. Accordingly, the appeal is dismissed confirming the

conviction and sentence imposed by the trial Court on the appellant/accused.