Siva @ Sivalingam vs State

C.T. Selvam, J.—The challenge in this appeal is to the judgment of learned Additional District and Sessions Judge, Fast Track Court II,

Coimbatore dated 15.5.2007 passed in S.C. No. 146 of 2006, convicting the appellant and another for offences under Sections 379 and 302 IPC

and sentencing him to undergo three years rigorous imprisonment and fine of Rs. 500/-, in default, six months simple imprisonment for offence u/s

379 IPC and to life imprisonment and fine of Rs. 5,000/-, in default, three years simple imprisonment for offence u/s 302 IPC. The appellant is the

second accused. The appeal of the first accused in Cri. A. No. 1072 of 2007 was dismissed under judgment dated 10.7.2008. The case of the

prosecution is as follows:

(i) On 17.6.2005, at about 12.30 p.m., at Periya Thottam, Madhanur village, the appellant/A2 along with A1, with an intent to commit robbery,

has committed the murder of the deceased Eswariammal by smothering and thereafter, committed theft of 5 sovereigns gold chain and a gold stud.

(ii) The deceased is the mother of P.W.1 and she was living with him. On the date of occurrence, P.W. 1 along with his wife and sons, went to his

father-in-law''s village to attend a temple festival. When P.W. 1 returned at 6.00 p.m., the deceased was not found in the house and therefore, he

went in search of her. He enquired of P.W.2 about his mother, who informed that the deceased had grazed cattle at a particular place and

thereafter, left at noon. P.W. 1 proceeded to Sirumugai Police Station on 18.6.2005 at 14.00 hours and preferred a complaint to P.W.9, Sub-

Inspector of Police, who registered case of ''Woman Missing'' in Crime No. 211 of 2005. Exhibit P-15 is the First Information Report. He

forwarded the report to P.W. 12, Inspector of Police, Mettupalayam, who took up investigation.

(iii) P.W. 12, proceeded to the scene village at 15.00 hours, prepared observation mahazar, Exhibit P-7 and rough sketch Exhibit P-19 in the

presence of P.W.3 and another witness. Thereafter, he examined P.Ws.1 to 3 and five other witnesses and recorded their statements. At about

8:30p.m., on 19.6.2005, while he was at the Police Station, P.Ws.2 and 4 and others came along with the accused persons and handed over

Exhibit P-8, statement of confession of the accused given to P.W.4. The same informed that the accused had, on 17.6.2005, murdered the

deceased towards stealing her jewellery. P.W.12 arrested the accused, interrogated them and before recording their confessional statements,

intimated the Tahsildar, Mettupalayam, who came to the Police Station. Thereafter, the confession statements of the accused were recorded at

8.30 a.m. and signatures were obtained from witnesses. The admissible portion of the confession of A1 is Exhibit P-17. The admissible portion of

the confession of A2 is Exhibit P-18. Thereunder, the accused had disclosed the place where they had thrown the body of the deceased and had

undertaken to produce the jewellery stolen by them. Accordingly, P.W.12 proceeded to Madhanur Village and in the presence of P.W.5, Village

Administrative Officer and another, he prepared observation mahazar, Exhibit P-9 and rough sketch, Exhibit P-20. He caused photographs in

M.O.5 series. Thereafter, the body was removed from a Well and identified by witnesses. He conducted inquest over the body between 12.00

noon and 3.00 p.m. The inquest report is Exhibit P-21. He sent the body of the deceased to Coimbatore Government Hospital through P.W.8,

constable, for conduct of postmortem. Thereafter, on the basis of confession of A2, a gold chain, was recovered under Exhibit P-6 from a fence

along the road leading to his house. The gold chain is M.O.1. At about 16.00 hours, the first accused produced a receipt, Exhibit P-13, from his

pant pocket. Pursuant thereto, P.W.12 proceeded to the concerned financial corporation at Mettupalayam at about 16.45 hours and seized a pair

of ear studs under Exhibit P-5. The ear studs are M.O.2. He further examined P.Ws.3, 5, 7 and 11 and other witnesses and recorded their

statements. He forwarded a report to learned Judicial Magistrate, Mettupalayam, informing the alteration of the FIR to reflect offence u/s 302 IPC.

The alteration report is Exhibit P-22. On 20.6.2005, he examined P.W.6, the Doctor, who conducted postmortem and received postmortem

report, Exhibit P-11. The postmortem report reads as follows:

P.M. No. 1006 of 2005 dated 19.6.2005

Cr. No. 211 of 2005 of Sirumugai P.S.

Regarding the body of a female named Eswariammal aged about 70 years.

Requisition received at 3.45 p.m. on 19.6.2005 from the The Inspector of Police, Sirumugai P.S., with his letter Cr. No. 211 of 2005 dt

19.6.2005. Body in charge of H.C. 635 Nataraj

Identification Marks:

Tattoo mark seen front of left forearm

A black mole seen over front of middle of right lower leg.

Body was first seen b the undersigned at 3.50 p.m. on 19.6.2005. The condition of the body then was decomposition changes present all over the

body. And Postmortem examination was commenced at 3.50 p.m. on 19.6.2005. Appearances found at Postmortem:

Moderately nourished body of a female aged about 70 years. Finger and toe nails bluish in colour. Abdomen distended, Post mortem peeling of

skin seen over the body. Tongue protruded. Scalp hairs comes off early.

INJURIES (Ante mortem)

Abrasion with surrounding contusion 4x3 cm over left cheek and angle of mouth.

Contusion 2x2 cm over chin, 2x1 cm over the right angle of mouth.

Teeth mark seen in the tip of tongue 1x3.5x3.25 cms.

Contusion seen in the inner aspect of right side upper lip 2x1 cm and both side lower lip found contused 4x1 cm.

Abrasion 4x3 cm just below left knee.

Contusion 8x5 cm back of left side lower chest.

Contusion 12x8 cm seen over the occipital region of scalp.

POSTMORTEM INJURIES

Deformity of right upper arm, on dissection fracture right humerus on its middle.

Deformity of left thigh, on dissection fracture femur on its lower end.

Lacerated injury 5x3 cm x muscle deep seen over later and posterior aspect right elbow.

Lacerated injury 4x3 cm x muscle deep over dorsum of left hand.

Lacerated injury 4x2 cm x muscle deep seen just above left wrist.

Fracture of sternum in middle.

Fracture of ribs 2nd to 8th on the left side and 2nd to 6th on the right side anterior aspect.

Other Findings

- Peritoneal and pleural cavities-empty

- Lungs-decomposition changes noted, Cut Section congested.

- Heart flabby, Decomposition changes noted, right side chambers contain few cc of fluid blood, left side chambers empty, Coronaries-patent

- Small intestine contains 20 ml of yellowish fluid. No specific smell. Mucosa congested.

- Liver, Spleen, Kidneys cut Section decomposed.

- Uterus atrophied

- Viscera preserved. Sample of blood preserved.

Opinion: Reserved pending Chemical Examiner''s report, Coimbatore.

Exhibit P-12 is the final opinion given by Doctor, P.W.6 and the same informs that the deceased would appear to have died of Asphyxia due to

compression over mouth and nose (smothering). It is also informed that the viscera does not contain any poison.

(iv) In continuation of investigation, P.W.12 sent the material objects to Court for forwarding the same for chemical analysis. On 22.6.2005, he

examined P.W.9 and other witnesses and recorded their statements. He arranged for recording the statement of some of the witnesses u/s 164

Cr.P.C. Upon his requisition, under Exhibit P-16, P.Ws. 1 to 8 were examined and their statements were recorded u/s 164 Cr.P.C. He received

the Serology Report, Exhibit P-23 on 11.7.2005 and proceeded to Coimbatore to examine the expert. After completion of investigation, he filed

charge sheet against the accused for offences under Sections 302 and 379 IPC, on 15.7.2005.

To substantiate its case, the prosecution examined 12 witnesses and marked 23 exhibits besides marking M.Os. 1 to 5. On questioning u/s 313

Cr.P.C., the accused denied the charges. None were examined on behalf of the appellant/accused nor were any exhibits marked.

Learned trial Judge, on consideration and appreciation of the evidence adduced by the prosecution, found both accused guilty, convicted and

sentenced them as stated above. Hence, the present appeal by the second accused.

Heard learned counsel for appellant and learned Additional Public Prosecutor.

Learned counsel for appellant submits that the facts and circumstances of the present case would not justify conviction of the accused, for

offence u/s 302 IPC. While conceding that he was not challenging the conviction u/s 379 IPC, learned counsel submits that but for the confessional

statements alleged, the case was based on circumstantial evidence and unless the circumstances form a cohesive chain and unerringly point to the

guilt of the accused, the appellant could not be convicted for the offence of murder. Learned counsel submits that the extrajudicial confession

alleged to have been made to P.W.4 by the accused on 19.6.2005 was highly doubtful. The evidence of P.W.4 read as if both the accused

persons had in one and same voice informed of having committed the murder of the deceased towards stealing her jewellery. Such a confession

statement could not be looked into in evidence. He would next contend that P.W.4 had informed of one Devaraj, having been present in his house,

when the accused came forward to tender their statements. However, such person had not been examined. Further, though P.W.2 claimed to have

been present when the accused appear before P.W.4, P.W.4 has not spoken to the presence of P.W.2 at such instance. Learned counsel,

therefore, submits that the confession statement of the accused was not reliable. He submits that the circumstances informed do not form a

cohesive chain and therefore, there was no material to convict the appellant for offence u/s 302 IPC.

We have heard learned Additional Public Prosecutor on the above submissions. Learned Additional Public Prosecutor submits that pursuant to

the confession made by the accused to P.W.4, the body of the deceased had been recovered and the jewelleries stolen from her stand duly

recovered. The postmortem clearly informs that death occurred due to Asphyxia and compression over mouth and nose. In the circumstances,

there was no reason to doubt the veracity of the prosecution case. Therefore, the finding of conviction and punishment imposed by the lower Court

were in order.

We have considered the rival submissions.

We find reason to suspect Exhibit P-8, the confession statement. The occurrence is informed to be of date 17.6.2005. The complaint, Exhibit

P-1, has been preferred on 18.6.2005. The accused have been arrested on 19.6.2005. Exhibit P-8, confession of the accused recorded by P.W.4

informs that upon P.W. 1 proceeding to the police station to prefer Exhibit P-1, complaint, on 18.6.2005, they under fear of being nabbed, had left

the scene village, proceeded to and spent the night of 18.6.2005, in the village where the daughter/sister of the accused resided. This is a

circumstance which normally would have raised suspicion against the accused. However, none of the witnesses have informed of any such

suspicion harboured by them. Further, the evidence of P.W.4 is that at the time the accused approached him, he was speaking with one Devaraj.

P.W.2''s evidence is to the effect that Devaraj joined in the search for the deceased on 17.6.2005. The said Devaraj, who was a material witness,

has not been examined. Though P.W.2 has spoken to his being with P.W.4 when the accused approached P.W.4 to confess to the crime, P.W.4

has not spoken to the presence of P.W.2 on such occasion. Finding Exhibit P-8 unreliable, we would discard the same. That the brain of the

deceased was found liquefied is one further reason not to accept Exhibit P-8; we will explain.

It is the prosecution case that the deceased was done to death on 17.6.2005 at about 12.30 p.m. The evidence of Doctor, P.W.6 and also the

postmortem report reveal that the body was fairly decomposed, the hair and finger nails came off easily and the skin reflected postmortem peeling.

Most importantly, the brain was found liquefied. The postmortem was commenced at 3.50 p.m. on 19.6.2005, i.e., 51 hours after the alleged time

of death. MODI''S MEDICAL JURISPRUDENCE AND TOXICOLOGY, 23rd edition, informs that the postmortem changes of hair and finger

nails becoming loose and skin peeling would occur between 48 and 72 hours, while brain becomes a liquid mass between three to four days. The

relevant portion reads thus:

From 48 to 72 hours, the rectum an uterus protrude. The gravid uterus may expel its contents, and prolapse. The hair becomes loose, and is easily

pulled out. The nails are also loose, and are easily detached.

In three to five days or more, the sutures of the skull, especially of children and young persons, are separated, the bones are loosened, and the

liquefied brain runs out. The teeth become loose in their sockets and may fall off......

Adult Brain. The putrefaction of the adult brain initially begins at its base, and then proceeds to the upper surface. It is hastened if any injury to the

brain or skull is present. The brain becomes soft and pulpy within 24 to 48 hours in summer, and becomes a liquid mass from three to four days.

Once the confession statement of the accused stands discarded and the medical evidence suggests that death would have been occasioned at a

time much prior to that suggested by the prosecution, it would not be possible to convict the accused for offence u/s 302 IPC. The conviction for

offence u/s 379 IPC altogether is a different matter. Pursuant to confession tendered by the accused to the Investigating Officer, P.W.12, a gold

chain, M.O.1, had been seized from the fence on the road leading to the house of the accused, under Exhibit P-6 mahazar and in the presence of

P.W.2, who has spoken thereto. A pair of gold studs, M.O.2, had been seized from a shop where it had been pawned pursuant to seizure of a

pledge receipt, Exhibit P-13, produced by the first accused from the pant pocket of the appellant herein under Exhibit P-5 mahazar. Therefore, the

case of the prosecution to the extent that the accused had stolen M.Os.1 and 2 worn by the deceased stands proved. In view of the above

reasoning, we set aside the conviction passed against the appellant for offence u/s 302 IPC. We confirm the sentence and fine imposed in respect

of offence u/s 379 IPC. We find that the appellant is in custody from the date of judgment under challenge viz., 15.5.2007. Learned counsel for

appellant informs that the appellant is in custody right since 19.6.2005. The maximum sentence for offence u/s 379 IPC is three years. The

appellant shall be released forthwith, unless his custody is required in connection with any other case. Fine of Rs. 5,000/- imposed by the trial

Court for offence u/s 379 IPC shall stand enhanced to Rs. 5,500/-. In effect, the appellant shall not be entitled to any refund of fine of Rs. 500/-

paid by him in respect of his conviction by the trial Court u/s 302 IPC pursuant to his acquittal in respect of such offence by this Court.

Accordingly, the Criminal Appeal is ordered.