Selvam @ Selvaraj and Nagaraj vs The State

M. Chockalingam, J.—Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No. I, Tiruchirappalli, dated

27.04.2009, made in S.C. No. 18 of 2008, whereby the appellants/accused Nos. 1 and 2, stood charged under Sections 302 (2 counts) read

with Section 34 IPC and 394 IPC and on trial, they were found guilty on both the charges, convicted thereunder and each of them sentenced to

undergo life imprisonment and to pay a fine of Rs. 5,000/- in default to undergo rigorous imprisonment for one year on each count for the first

charge and three years rigorous imprisonment for the latter charge and both the sentences were ordered to run concurrently.

Short facts necessary for the disposal of the appeal can be stated as follows:

(a) P.W.1 Lalitha is the wife the deceased No. 1 Nagarajan and 1-1/2 years prior to the occurrence, due to some disturbance in their matrimony,

she left her matrimonial abode and was living with her mother. Deceased Nagarajan is the paternal uncle of the deceased No. 2 Sundaram.

(Hereinafter, deceased persons are referred to as D-1 and D-2, respectively, for the sake of convenience). D-1 was running a Goldsmith Lathe in

the 3rd floor of the building bearing Door No. 22, Sarayakadai Street, within the jurisdiction of the respondent police. He was engaged in

manufacturing of gold and silver ornaments. Both D-1 and D-2 were living in the 2nd floor of the said premises. Accused No. 2 is the son of

Accused No. 1. Accused No. 1 was employed under D-1 in the manufacturing of jewels. Three months prior to the occurrence, in view of lack of

integrity, D-1 terminated the services of Accused No. 1 and thus accused No. 1 developed animosity against D-1. P.W.2 Krishnamoorthi is the

father of D-1 and he was living separately in a house nearby. P.W.3 Babu was occupying the 1st floor of the building where D-1 was running

Goldsmith Lathe on rental basis.

(b) On the date of occurrence, that was on 29.06.2007 after 10.30 p.m. in the night, accused Nos. 1 and 2 came to the builing where D-1 was

running Goldsmith Lathe and pressed the calling bell standing on the ground floor and on hearing this, D-1 called them to the upstairs. This was

witnessed by P.W.3 from the 1st floor balcony. Then accused Nos. 1 and 2 went over there and stayed during the night hours when the

occurrence was taken place. During the said interval, the death of both D-1 and D-2 was caused and all the jewels, M.Os.2 to 33, kept in the

bureau and M.O.1 - Cell phone were stolen by both accused Nos. 1 and 2.

(c) At about 4.30 a.m. on 30.06.2007, P.W.2 came to wake his son - D-1 and when he was coming over there, he found accused Nos. 1 and 2

just coming out of the house and also accused Nos. 1 and 2 having bags in their hands. P.W.2 entertaining suspicion questioned them but they did

not give any answer and went away from the place. P.W.2 also entertained suspicion and went to the house and found the outer doors of the

house kept locked. Immediately, he came down and took his wife, his another son and one Suresh and went to the house of D-1, broke open the

doors, went inside the house and found his grandson (D-2) found dead in the hall and his son (D-1) found dead inside the room. He also saw the

bureaus kept opened.

(d) On 30.06.2007 at about 6.45 a.m. the above said Suresh and one Hari went to P.W.1 and informed her about the death of her husband (D-1)

and D-2. Immediately, P.W.1 rushed to the place of occurrence and found the dead bodies. She also found the bureaus kept opened. The

relatives gathered and P.W.3 also went and saw the dead bodies. Thereafter, P.W.1 proceeded to the respondent Police Station and gave Ex.P-1

Complaint to P.W.26, the Sub-Inspector of Police, who was on duty. On the strength of Ex.P-1, P.W.26, registered a case in Crime No.

676/2007 u/s 174 Code of Criminal Procedure and sent Ex.P-37, Printed FIR to the Court and the copies to the higher police officers.

(e) P.W.27, the Inspector of Police, took up the investigation, proceeded to the place of occurrence, made an observation in the presence of

P.W.6 and another and prepared Ex.P-2, the observation mahazar, and also drew Ex.P-38, the rough sketch. He recovered M.Os.34 to 43 -

brass lock, forceps, hammer, cellphone board, bedsheet, pillow-1, remote, shirt, medicine bottle and tumblers-2, respectively, near the place

where the body of D-1 was found under Ex.P-3 Mahazar attested by P.W.6 and another. He also recovered M.Os.44 to 46 - bedsheet, wire-1

and silver tumblers, respectively, near the place where the body of D-2 was found under Ex.P-4 Mahazar attested by the same witnesses. He sent

intimation to the sniffer dog and also for Forensic Experts. He examined P.W.1, P.W.2 and other witnesses and recorded their statements.

Thereafter, he conducted inquest on the body of D-1 Nagarajan in the presence of panchayatdars and witnesses and prepared Ex.P-39, the

inquest report. He conducted inquest on the body of D-2 Sundaram in the presence of panchayatdars and witnesses and prepared Ex.P-40, the

inquest report. Thereafter, he sent both the bodies for postmortem through the Head Constables with Exs.P-28 and P-33, the Requisition.

(f) P.W.17, the Forensic Department Expert, as requested by P.W.27, the Inspector of Police, on 30.06.2007 he went to the place of occurrence

and made an observation. He also observed the dead bodies. He collected (1) black colour stained tumblers, (2) a shirt, (3) bloodstained paper,

(4) hair and (5) bloodstained clothes found near the dead bodies and handed those material clues over to the Inspector of Police for sending them

for examination and accordingly P.W.27, the Inspector of Police, sent those material clues collected by the Forensic Expert to the Court under

Form 95.

(g) P.W.18, Inspector of Police, working in the Finger Print Lab, went to the place of occurrence as requested by the Investigator and examined

whether there was any finger prints available on the materials found near the bodies and from them he lifted three finger prints. He also took the

finger prints of both the deceased and on examination he found out of three finger prints lifted from the materials two prints tallied with the finger

print of D-1 and one finger print did not tally and that belonged to a stranger. On 03.07.2007, the finger prints of both the accused were taken in

the police station and they were sent to P.W.18 for comparison and on examination P.W.18 found that the finger print lifted from the bureau found

in the occurrence place tallied with the finger print of accused No. 2. On 14.08.2007, the finger prints of the accused Nos. 1 and 2, taken before

the Magistrate, were sent for comparison through letter of Court and on examination he sent Ex.P-14, Report, to the effect that the right thumb

print of accused No. 2 tallied with the finger print lifted from the bureau found in the occurrence place.

(h) P.W.24, the doctor attached to Government Medical College Hospital, Trichy, on receipt of Ex.P-28 Intimation from the Investigator,

conducted inquest on the body of D-1 Nagarajan at about 10.00 a.m. on 01.07.2007 and on completion of postmortem, P.W.24 gave Ex.P-29,

the postmortem certificate, opining that D-1 would have died of cumulative effects of smothering, throttling and head wounds. On the same day at

about 11.50 a.m., P.W.24, pursuant to Ex.P-33 Requisition, conducted autopsy on the body of D-2 Sundaram and on completion of postmortem,

he gave Ex.P-34, the postmortem certificate, opining that Sundaram died of Asphyxia due to smothering. After postmortem, M.Os.49 and 50,

personal wearing apparels of D-1 and M.Os.51 to 53, personal wearing apparels of D-2, were recovered from the bodies of the deceased by the

Head Constables and they handed over them to P.W.27, the Investigator, under Exs.P-41 and P-42, Special Reports. P.W.27 examined

witnesses and recorded their statements.

(i) Pending investigation, P.W.27, the Inspector of Police, arrested both the accused on 02.07.2007 and when enquired in the presence of P.W.7

and another, both the accused came forward to give separate voluntary confessional statements and the admissible portions of their confessional

statements are marked as Exs.P-7 and P-8, respectively, pursuant to Ex.P-8 M.O.1 - Nokia Cellphone and M.O.2 - 12 sovereigns of gold chain,

were recovered from Accused No. 2 under Ex.P-9 and Ex.P-10 Mahazars, respectively, attested by the same witnesses. M.Os.4 to 8 - gold

ornaments and ingots, were also recovered from accused No. 2 under Ex.P-43 Mahazar attested by the same witnesses. In pursuance of Ex.P-7,

M.Os.3 and 9 to 33 - gold and silver ornaments and M.Os.54 to 57 (dhoti, shirt, pillow and cotton bag), were recovered from accused No. 1

under Ex.P-11 Mahazar attested by the same witnesses. Thereafter, P.W.27 sent both the accused to the Government Hospital for examination

under Medical Memo. After medical examination, the accused were subjected to judicial remand.

(j) P.W.10 is the doctor who gave treatment to accused No. 1 in his clinic at Ariyalur on 30.06.2007 and Ex.P-5 is the O.P. Chit given to him and

Ex.P-6 is ECG Report of accused No. 1. P.W.12 is the doctor who also gave treatment to accused No. 1 on 30.06.2007 at Thanjavur and Ex.P-

12 is the case sheet of accused No. 1.

(k) After receipt of Postmortem Certificates Exs.P-29 and P-34 from P.W.24, the Doctor, P.W.27, the Investigator, found that it was a case of

murder and therefore the case which was originally registered u/s 174 Code of Criminal Procedure was altered into under Sections 302 and 380

IPC and Ex.P-44, altered FIR, was sent to court. P.W.27 examined the witnesses and recorded their statements. He completed the investigation

and filed final report against accused Nos. 1 and 2 under Sections 302 (2 counts) read with Section 34 and 394 IPC on 23.08.2007.

After committal proceedings, the case was taken on file by the Sessions Court in S.C. No. 18/2008 and necessary charges were framed. To

prove the charges against the accused, the prosecution examined 27 witnesses as P.Ws.1 to 27 and marked 44 documents as Exs.P-1 to P-44

and produced M.Os.1 to 57. On completion of the evidence on the side of the prosecution, when the accused were questioned u/s 313 of the

Code of Criminal Procedure about the incriminating circumstances found in the evidence of prosecution witnesses, they denied all of them as false.

On the side of defence, three witnesses were examined as D.W.1 to D.W.3 and one document is marked as Ex.D-1. The trial court, after hearing

the parties, took the view that the prosecution has proved the charges against both the accused beyond reasonable doubt, found them guilty,

convicted them thereunder and awarded punishment as referred to above and hence this appeal has been brought forth by accused Nos. 1 and 2.

Advancing arguments on behalf of the appellants/accused Nos. 1 and 2, the learned senior Counsel Mr.Gopalakrishna Lakshmanaraju, would

make the following submissions.

(a) In the instant case, according to the prosecution, the occurrence has taken place after 10.30 p.m. on 29.06.2007. P.W.2 is the father of D-1

and P.W.3 is a tenant under D-1 and occupying the 1st floor of the building where D-1 was living in the 2nd floor and carrying on his goldsmith

lathe in the 3rd floor. P.W.1 is the wife of D-1, who was living in her mother''s house separately during the relevant time. The prosecution has no

direct evidence to prove its case. However, the prosecution relied on three specific circumstances, namely last seen theory, arrest and recovery

and finger print expert''s opinion.

(b) Coming to the 1st circumstance relied on by the prosecution, that is the last seen theory, according to prosecution, P.W.3 was an occupant of

the 1st floor of the building and at about 11.00 p.m. in the night on 29.06.2007, accused Nos. 1 and 2 came there and pressed the calling bell and

on hearing the same D-1 asked them to come to upstairs and they went upstairs and this was witnessed by P.W.3. This theory of pressing the bell

by accused persons and D-1 calling them to upstairs was sought to be proved by the prosecution through the evidence of P.W.3 but, P.W.3

nowhere has whispered that he saw D-1 at that time. Learned senior Counsel pointing to the inquest reports of both the deceased, marked as

Exs.39 and P-40, would contend that D-1 was last seen only by the 2nd son of D-1 by name Krishnakumar, who has been examined as P.W.9,

and not either P.W.3, the alleged tenant of D-1 or P.W.2, the father of D-1 and thus it is quite indicative of the fact that the evidence of P.W.3

could not be taken that it established that he saw D-1 in the company of the accused persons.

(c) Added further the learned senior Counsel, according to P.W.2, based on the information given by his son, the police also came to the place of

occurrence at the time when his daughter-in-law, P.W.1 came and he explained to the police the happenings and the police written the same to his

narration and thus the complaint given by P.W.2 has been suppressed.

(d) Added further the learned senior Counsel, it is the specific case of the prosecution that all the jewels, both gold and silver ornaments, were

completely stolen away by the appellants/accused Nos. 1 and 2 but, on the contrary, P.W.1, who came to the spot on the very morning and gave

a complaint to the police, nowhere in her complaint has whispered anything about the theft of jewels kept in the house and according to the

observation mahazar prepared by the Investigator the bureau was kept closed and further among the witnesses examined by the police, no one has

spoken to the fact that anything was stolen from the house. Added further the learned senior Counsel, even before P.W.1 was informed, P.W.2

and other witnesses actually broke opened the door and got into the house and this casts a doubt on the prosecution case as to the theft of jewels.

(e) Learned senior Counsel while attacking the alleged confessional statements given by the appellants relied on the evidence of P.W.6 and

contended that if the evidence of P.W.6 is looked into, the arrest of the appellants and recovery of jewels, according to him, should not be

believed and should be rejected out right but the trial Court erroneously acted upon. Pointing out the evidence of P.W.6, learned senior Counsel

submitted that P.W.6 has categorically deposed that he was taken by the police to Thanjavur Hospital on Sunday, (01.07.2007) and he saw

Accused No. 1 Selvaraj was admitted in the hospital for treatment and from Thanjavur Hospital accused Nos. 1 and 2 and the wife of accused

No. 1 were brought to Trichy and thus the claim of the Investigator that on 02.07.2007 he arrested both the accused at Trichy and pursuant to the

confessional statements given by them, jewels were recovered from them cannot be but false and thus the confessional statements have come into

existence in order to suit the convenience of the prosecution case and therefore the same would fall to ground.

(f) The 3rd circumstance relied on by the prosecution was the finger print experts opinion marked as Ex.P-14. P.W.18 is the Finger Print Expert.

According to him, he lifted three finger prints from the place of occurrence and also the finger prints of both the deceased and after analysis he filed

a report to the effect that out of three finger prints, two prints tallied with that of D-1 and one finger print did not tally with the deceased persons.

He has further stated that the finger prints of accused Nos. 1 and 2, taken on 03.07.2007 in the police station, were received by him for

examination and when those finger prints were compared with the finger prints already taken by him from the place of occurrence, the one finger

print which did not earlier tally with the finger prints of the deceased tallied with the finger of accused No. 2. But, this Finger Print Report, marked

as Ex.P-14, was actually filed on 06.12.2007 subsequent to the file of charge sheet on 24.08.2007. Added further the learned senior Counsel that

though it was claimed by the prosecution that the finger prints of accused Nos. 1 and 2 were taken on 14.08.2007 before the Magistrate and the

same were sent to P.W.18 for examination and he sent Ex.P-14 Report opining that the finger print of accused No. 2 tallied with the finger print

lifted from the bureau, no records were made available in order to prove that finger prints were taken before the Magistrate and they were sent for

examination and, therefore, the claim of the prosecution that finger prints were taken before the Magistrate and on comparison the finger print of

accused No. 2 found tallied with the finger prints already lifted from bureau cannot be accepted and this cannot be given any significance or legal

evidentiary value and thus the prosecution has miserably failed to prove its case.

(g) Added further in his second line of argument, learned senior Counsel would submit that insofar as accused No. 2 is concerned, his date of birth

is 17.05.1989 and on the date of occurrence, i.e. 29.06.2007, he was 18 years and one month and thus he was an adolescent offender and under

such circumstances, though he was found guilty, he should not have been sentenced to life imprisonment but ought to have been sent to Borstal

School and in support of the said submission, the learned Counsel relied on an unreported judgment of this Court, dated 06.07.2010, made in

Crl.A.(MD) No. 124 of 2009.

The Court heard the learned Additional Public Prosecutor on all the submissions made by the learned senior Counsel for the appellants and paid

its anxious consideration to the submissions made on either side and perused the materials on record.

It is not in controversy that the dead bodies of one Nagarajan - D1, the husband of P.W.1 and Sundaram -D2, nephew of D-1, were found in

the premises where D-1 was carrying on his goldsmith lathe. Following the registration of a case u/s 174 Code of Criminal Procedure, inquest was

conducted by the Investigator P.W.27, who took up the investigation, and he prepared two inquest reports, which are marked as Exs.P-39 and P-

40 and pursuant to the request made by the investigator through Exs.P-28 and P-33, P.W.24, the doctor, conducted autopsy on the bodies of

both the deceased and issued Ex.P-29, postmortem certificate, opining that D-1 died of cumulative effects of smothering, throttling and head

wounds and he also gave Ex.P-34, postmortem certificate, opining that D-2 died of asphyxia due to smothering. After the receipt of Exs.P-29 and

P-34, the postmortem certificates of D-1 and D-2, respectively, the case which was originally registered u/s 174 Code of Criminal Procedure was

subsequently altered into u/s 302(2) counts read with Section 34 IPC. The cause of death as put-forth by the prosecution before the trial Court

was never disputed by the appellants and hence it was not a matter in controversy and the trial judge was perfectly right in recording so.

In order to prove the two charges levelled against the appellants/accused Nos. 1 and 2 that they have stolen all the jewels from the house of D-

1 and also caused the death of both the deceased, the prosecution, it is true, had no direct evidence to offer but relied exclusively circumstantial

evidence. The Court is mindful of the caution that in a given case like this where the prosecution rests its case exclusively on circumstantial

evidence, it must place and prove all the circumstances without any snap and complete chain must be made pointing to the hypothesis that except

the accused no one could have committed the offence. In the instant case, the circumstances which are relied on by the prosecution can be stated

as follows.

Accused No. 2 is the son of accused No. 1. Accused No. 1 was actually employed under D-1 in his goldsmith lathe and engaged in the

manufacturing process of jewels. Three months prior to the occurrence, in view of lack of integrity, the services of accused No. 1 was terminated

and thereafter there was strained relationship between them. The defence that was raised before the trial court would clearly speak of the strained

relationship between them. The occurrence has taken place in the night hours of 29.06.2007. Admittedly, P.W.3 was a resident in the first floor of

the same house where D-1 was carrying on his goldsmith lathe in the 3rd floor, staying in the second floor. Thus, on the date of occurrence, P.W.3

was occupying the first floor while the deceased was carrying on his business in the 3rd floor. According to P.W.3, during the relevant date D-2

was staying with D-1 and they were the only two persons who were staying there on the night of 29.06.2007.

According to P.W.3, at about 11.00 p.m., both the accused persons came to the house and pressed the calling bell and on hearing the sound

raised, D-1 called both the accused persons to the upstairs and thus accused Nos. 1 and 2 have gone to the place where both the deceased were

staying. The comment put-forth by the learned Senior Counsel on the evidence of P.W.3 was that that P.W.3 nowhere, in his evidence, has stated

or even whispered that he saw the deceased persons and hence the last seen theory could not be accepted. This contention has got to be rejected.

According to P.W.3, accused No. 1 and accused No. 2 came there and pressed the door bell and thereafter it was D-1 who called them to

upstairs and accordingly they went to the upstairs crossing the 1st floor and thus it is quite clear that both the accused have joined D-1 in the 2nd

floor. Added to this, the evidence of PW.2 was available for the prosecution. According to P.W.2, he came to the house of his son-D1 on the

early morning hours at 4.30 a.m. on 30.06.2007 in order to wake him and at that time he saw both the accused persons coming out of the house

and entertaining a suspicion he asked both the accused persons but they did not give any answer and they were also found to carry bags and when

he went near the house he found the house kept locked from outside and this added his suspicion and then with the help of others he broke opened

the doors and got inside the house, found both the dead bodies and immediately informed P.W.1 and thus, it is quite clear that both the accused

persons have come out of the house at about 4.30 a.m. Thus, it would be quite indicate of the fact that P.W.3 has seen both the accused entering

into the house at the night hours on 29.06.2007 and P.W.2 has seen both of them making exit from the house at the morning hours on 30.06.2007

and in between these two points of time the occurrence has taken place inside the house and P.W.2 also saw the doors of the house kept looked

and thus it is quite clear that the accused persons, after committing the crime, locked the door and went away.

The next contention of the learned senior Counsel for the appellants was that it was the case of the prosecution that the appellants have stolen

all the jewels kept in the bureau, but in the complaint given by P.W.1 there was not even a whisper about the theft of jewels. At this juncture, it is

pertinent to point out that it is true that in Ex.P-1 complaint nothing is stated about the theft of jewels and in Ex.P-2, the Observation Mahazar, it is

stated that the bureaus was kept closed and therefore there was nothing to entertain suspicion as to the theft of jewels. Only after the police people

came over there and opened the bureau, the jewels kept in the bureau was found missing. It is pertinent to point out that during the relevant time

P.W.1 was not staying with her husband and she was staying away and when she came to the spot and found the dead bodies and also found the

bureaus kept closed and therefore she could not entertain any suspicion and hence non-mentioning of the stealing of jewels in Ex.P-1 would not in

any way affect the prosecution case.

Added further, recovery of all the jewels, in the considered opinion of the court, is pointing to the guilt of the accused persons. Admittedly, the

jewels recovered from the accused and identified were actually belonged to D-1. The Investigator would claim that both the accused were

arrested at Tiruchirappalli on 02.07.2007 in the presence of P.W.7, the Village Administrative Officer. P.W.7 has narrated the entire arrest of both

the accused on 02.07.2007 and recovery of M.O.1 - Nokia Cellphone and M.O.2 - 12 sovereigns of gold chain from Accused No. 2 under

Ex.P-9 and Ex.P-10 Mahazars, respectively as well as M.Os.4 to 8 - gold ornaments and ingots from accused No. 2 under Ex.P-43 Mahazar and

further the recovery of M.Os.3 and 9 to 33 -gold and silver ornaments from accused No. 1 under Ex.P-11. Thus, the prosecution has sufficient

evidence pointing to the recovery of jewels from the appellants/accused Nos. 1 and 2 and that they belong to D-1. The occurrence has taken

place on 29.06.2007 and the accused were arrested and recovery has been made on 02.07.2007 within a few days and in such circumstances,

law would expect them to explain how they came into custody of the jewels and other material objects belonged to the deceased and thus it is a fit

case, in the considered opinion of the court, where a presumption is to be drawn u/s 114(A) of the Evidence Act when the properties which

belonged to D-1 were found in possession and custody of the accused, it is for them to give reasonable and acceptable explanation how those

articles came into their custody but there was no explanation forthcoming from them. In such circumstances, it might be presumed that they are the

persons who have stolen those articles or they should be the receivers of the stolen properties. In the instant case, evidence is available to show

such entry and exit of the accused persons from the house on the date of occurrence and material objects were recovered from the accused and

thus it would be quite clear that they have stolen the properties from the place of occurrence and thus in the instant case the prosecution had to its

benefits the last seen theory along with the recovery of the jewels.

Much comment was made by the learned Senior Counsel about the arrest of the appellants pointing out the evidence of P.W.6 that according

to P.W.6 accused No. 1 was hospitalised in Thanjavur and he was taken from the hospital along with accused No. 2 to Tiruchirapplli from

Thanjavur. This contention cannot be countenanced for the simple reason that P.W.6 was not the recovery mahazar witness for M.Os.1 to 33 and

54 to 57. That apart, specific evidence of P.W.7, the village administrative officer, is available as to the arrest and recovery of M.Os.1 to 33 and

54 to 57 and whose evidence remained unshaken despite full cross-examination and the same was rightly acted upon by the trial judge.

Insofar as the third part of the evidence of the prosecution as to the Finger Print Expert''s Opinion contained in Ex.P-14 report is concerned,

the Court is unable to agree with the said Expert''s Opinion and the same is liable to be rejected for the following reasons. Initially, the assistance of

P.W.17, the Finger Print Expert of the Forensic Department, was called and he could not find any finger prints tallying with the accused. Thereafter

independent Finger Print Expert was called and he has given a report even after the filing of the charge sheet. According to the prosecution, finger

prints of the accused was taken before the Magistrate on 14.08.2007 but, no records were filed to prove the same and in a given case like this, the

prosecution must not only file the finger print expert''s report but it should stick to the procedures to be followed in getting such reports from the

experts and therefore the report of the finger print expert has to be rejected.

Before concluding the judgment, the strong circumstance which will be pointing to the guilt of the accused, apart from all the above

circumstances, is the defence plea taken by the defence before the trial court that D-1 borrowed money from accused No. 1 but, he did not repay

and hence D-1 pledged M.O.2 - 12 Sovereign gold chain with accused No. 1 and thus M.O.2 came into his custody. This explanation, in the

considered opinion of the court, would clearly indicate that he was in custody of the jewel belonged to D-1 and the claim of the prosecution was

that it was recovered from the accused. During the relevant time, accused No. 1 was employed under D-1, who was carrying on goldsmith lathe

and engaged in jewels manufacturing. Under such circumstances, there cannot be any reason why D-1 should borrow money from Accused No. 1

and it is only a story introduced by the defence in order to make deviation from the prosecution case, if possible, but in vain. This circumstance

also strengthens the case of the prosecution.

From the above, it is clear that the evidence adduced by the prosecution, both oral and documentary, would clinchingly indicate that accused

No. 1 and 2 made entry into the house where D-1 and D-2 were staying on the night hours on 29.06.2007 and caused their death and robbed all

the jewels and fled away from the occurrence place, which was seen by two witnesses at the entry point and exit point and, hence, along with

recovery of jewels from the accused, the charges levelled against them are proved and the trial court was perfectly correct in recording a judgment

finding both the appellants/accused guilty of the charges under Sections 394 and 302 (2counts) read with Section 34 IPC and there is nothing to

interfere with the said finding.

Insofar as accused No. 2 is concerned, learned Senior Counsel for the appellants brought to the notice of the Court that the date of birth of

accused No. 2 is 17.05.1989, as could be seen from the materials available on record, and he just crossed 18 years and one month on the date of

occurrence, that was on 29.06.2007 and the judgment of the trial court was on 27.04.2009 and thus he was an adolescent offender even on the

date when sentence was imposed on him and therefore he has to be sent to Borstal School and detained there till he completes the age of 23 years

and the judgment of this Court in Crl.A.(MD) No. 124 of 2009, dated 06.07.2009 was also relied upon by the senior counsel in support of this

contention. The said factual position is not in dispute. The court is unable to find any reason to deviate from the above cited judgment of this Court,

as the same has been rendered following a Full Bench Decision of this Court in A. Thangammal v. State reported in (2008) 1 MLJ 832, wherein

the Full Bench has given its judgment as follows:

Whereas, the language of Section 8 of Borstal Schools Act is clearly different. The Court shall consider whether in lieu of passing a sentence of

imprisonment, it shall pass a sentence of detention in Borstal School and before passing a sentence of detention, the Court shall call for a report

from the Probation Officer where the offender permanently resided and any other report or representation it shall make further enquiry as it thinks

fit as to the suitability of the case for treatment in Borstal Schools Act. Therefore, the Court is given the power to decide the suitability of the

offender to be sent to Borstal detention in lieu of imprisonment. An apprehension may arise whether undeserving convicts would get the benefit of

this provision merely because they are adolescent offenders. But, this apprehension must be rejected as baseless since Section gives the Court the

discretion to pass either a sentence of imprisonment or detention in a Borstal School. It is the Court which has the duty to exercise this discretion

properly. But, Section 10 and 10-A give the power to the Inspector General of Police and the State Government to transfer prisoners to Borstal

School. Neither of the two authorities have the power to pass a sentence of detention in a Borstal School. Only the Court has that power. The

power under Sections 10 and 10-A is a power of transfer to a Borstal School after a sentence of imprisonment has been passed by the Court.

Section 10 which deals with adolescent offender undergoing imprisonment in consequence of a sentence passed either before or after the passing

of this Act might with advantage be detained in a Borstal school, directs that such person shall be transferred from prison to a Borstal School, there

to serve the whole or any part of the unexpired residue of his sentence. Similarly, Section 10-A also deals with power of State Government to

transfer offenders who have been sentenced to transportation. Therefore, Section 8 is a first stage where in lieu of a sentence of imprisonment,

sentence of Borstal School detention is passed. Section 10 and 10-A come later where a sentence of imprisonment has been passed and

thereafter, the Inspector General or the State Government, as the case may be, shall direct transfer of that offender to Borstal School and other

provisions shall apply as if he had been originally sentenced to detention in a Borstal School u/s 8.

Following the same, this Court has to agree with the contention put forth by the learned Senior Counsel for the appellants so far as accused

No. 2 is concerned, he has got to be sent to the Borstal School. Accordingly, while confirming the conviction of Accused No. 2 u/s 302 (2 counts)

read with 34 of IPC and also u/s 394 IPC, the sentences imposed on him thereunder by the trial court are set aside and he is directed to be

detained in the Borstal School till he attains the age of 23, as envisaged under the Tamil Nadu Borstal Schools Act.

As far as A-1 is concerned, the judgment of the trial court finding him guilty u/s 302 (2 counts) read with 34 of IPC and also u/s 394 IPC and

imposing punishment thereunder is sustained. The sentences imposed on accused No. 1 under both the charges are ordered to run concurrently.

Accordingly, this criminal appeal is disposed of.