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RAVICHANDRAN versus THE STATE, REP. BY

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Ravichandran v. The State, rep. by - CRIMINAL APPEAL No.222 OF 1996 [2002] RD-TN 296 (26 April 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 26/04/2002

Coram

The Honourable Mr. Justice V.S. SIRPURKAR

and

The Honourable Mr. Justice A. PACKIARAJ

CRIMINAL APPEAL No.222 OF 1996

Ravichandran ... Appellant versus

The State, rep. by

Inspector of Police

Thirukkanur Circle

Pondichery ... Respondent Appeal under Sec.374 of Crl.P.C. against the judgment and sentence passed by the Principal Sessions Judge, Pondichery on 6-3-1995 in S.C. No.46 of 1994

For Appellant :: Mr. P. Venkatasubramaniam For Respondent :: Mr. T. Murugesan, S.C. Public Prosecutor

:JUDGMENT



V.S. SIRPURKAR, J.

Aggrieved by his conviction for the offence under Sec.302 I.P.C. as also for the offence under Sec.392 I.P.C., the appellant/accused files this appeal.

2. The allegation against him was that he had committed robbery on 16-5-1993 during the night at the residence of the deceased Sengavalli Ammal and in the same transaction, robed her of her gold ornaments worth Rs.30,000/- in the village Sedarapet, falling within the limits of Katterikuppam Police Station, Pondichery.

2.1. The prosecution story was that the deceased stayed all alone in her house in Sedarpet being a widow and being issueless. She used to be visited by Jaganathan (P.W.1) who was her nephew and a resident of the same place. He had seen her last on 16-5-1993. However, on the next day, a relative came to his office and informed that Sengavalli Ammal was lying dead in a cot in her house. He immediately went to the house of the deceased and noted that some gold ornaments were missing from her, they being – (i) a two-row chain (Manathakkali Chain); (ii) five bangles and (iii) two ear studs. These gold ornaments used to be normally worn by the deceased. He, therefore, went to the Katterikuppam Police Station and lodged a report, which was treated as First Information Report.

2.2. On receipt of the information, C.T. Karuppiah (P.W.16), who was the Inspector of Police, reached the spot and did the necessary investigation and drew the Observation Mahazar, rough sketch, etc. He also seized certain bloodstained articles including the bloodstained clothes, etc. He then conducted inquest over the dead body of Sengavalli Ammal. He had brought even the sniffer-dog squad and the finger-print experts. Photographs were also taken of the body. He recorded the statements of the witnesses P.W.1 to P.W.4 and sent the body for post mortem to the Government Hospital, Pondichery.

2.3. He then continued investigation to nab the accused and, therefore, he interrogated the ex-convicts and the suspects in the locality. During his investigation, on 27-5-1993, he came across a statement of one Amudha (P.W.13) on the basis of which he nabbed the accused as that statement revealed that the accused had offered his sister to the son of Amudha (P.W.13) for marriage and had made an offer to pay Rs.5,000/- as also the gold ornaments. P.W.16 also got the information that the accused was already involved in two cases for offences under Secs.457 and 380 I.P.C. On these informations, P.W.16 searched for the accused and on 31-5-1993 at about 12.30 Hrs. He arrested the accused at Sedarpet near his residence. 2.4. The accused gave a voluntary statement in presence of Kannan (P.W.7) and offered to produce the murder weapon. Accordingly, he was taken to the deceased’s house. He showed the betel-nut pounding stone (hereinafter called “the stone”) which he had used. That was recovered. Again, the accused took the police party to his residence wherein M.Os 9, 10 and 3 and Ex.P-8 were recovered. Ex.P-8 was the pawn-receipt. The accused thereafter took the police party to a shop in Thirukkanur and identified one Rajendran (P.W.8) with whom he had pawned some gold ornaments like M.O.4 gold bangles, five in numbers. Thereafter, he also took the police party to Pondichery in the same evening at Nellu Mandi and identified one Janakiraman to whom he had sold some gold ornaments such as gold ear-studs, two in numbers. Those gold ornaments were also seized and a mahazar was prepared vide Ex.P-11. He, thereafter, took the police party to Thiruchittrambalam Koottu Road and identified one Aravind Jain (P.W.9) to whom he had pledged M.O.5, gold ear-studs two in numbers on the earlier occasion. He got the ornaments identified by witnesses P.Ws 1 and 5, who were the deceased’s relations. He then sent the material objects to the Central Forensic Science Laboratory. However, by then, i.e. on 24-12-199 3, he was transferred and, therefore, he handed over the investigation to Padmanabhan (P.W.17). The rest of the investigation was conducted by P.W.17 who obtained the opinion of Dr. V. Srinivasan (P.W.11) and received the Serologist’s report. After completing the investigation, he filed the charge-sheet.

3. At the trial, the defence of the accused was that of denial and false implication. The defence did not prevail and the accused came to be convicted as stated earlier, necessitating the present appeal.

4. This is essentially a case of “circumstantial evidence” as there was no direct evidence as regards the involvement of the accused in the murder and robbery of the deceased. The circumstances proved against the accused are within the narrow compass. The needle of suspicion moved towards the accused on account of his offer of marriage of his sister to the son of Amudha (P.W.13) wherein he offered Rs.5,000 /- by way of dowry and some gold ornaments. The other circumstances relied upon are the homicidal death of Sengavalli; her ornaments being absent on her body and the immediate possession on the part of the accused of those ornaments and his disposing of the same suggesting that he was not only a thief or a robber of those ornaments but was also essentially involved in the murdering the old lady Sengavalli Ammal. The prosecution has relied on the evidence of P.W.1 and P.W.5 who are the near relations for identification of the ornaments while some more witnesses are examined to suggest that even till 2’o clock in the mid-night the deceased was alive. The Sessions Judge has accepted all those circumstances and convicted the accused.

5. The learned counsel before us urged that the evidence in this case was totally insufficient to connect the accused with the crime. The evidence was also unreliable. The identity of the ornaments was not established nor was their possession on the part of the accused. The learned counsel also criticised the slips hod investigation and pointed out that the alleged evidence of discovery suggested that those discoveries were of farcical nature. The learned counsel, therefore, argues for a complete acquittal. Alternatively, the learned counsel suggests even if it is held that the accused was in possession of the ornaments of Sengavalli Ammal or that he had pawned or sold the said ornaments, he could not have been convicted for the offence under Sec.302 I.P.C. as it was not proved by the prosecution that he had any intention to commit the murder of Sengavalli Ammal.

6. The learned senior counsel and Public Prosecutor, however, supported the prosecution and pressed for the dismissal of the appeal.

7. We have to consider on this rival background as to whether the Sessions Judge was right in convicting the accused as he did.

8. On this backdrop, it would be our task to see as to whether the prosecution has been able to prove the identity of the ornaments of the deceased and whether the accused was in possession of those ornaments and could, therefore, be connected with the crime.

9. The gravamen of the contention of the learned Public Prosecutor was that the prosecution had fully established not only the identity of those ornaments but also the fact that the accused was almost immediately was in possession of the ornaments and, therefore, a presumption under illustration (a) to Sec.114 of the Indian Evidence Act could be drawn against him. The further argument was that the said presumption could be further extended and it could be safely held that the accused had committed the murder while committing the robbery against Sengavalli Ammal. It will be, therefore, our task to see whether it is proved that the material objects in this case, viz. the gold ornaments ;have been proved to be belonging to the deceased.

10. In this behalf, there is the evidence of Jagannathan (P.W.1), who was a near relation of the deceased. The deceased Sengavalli Ammal was his maternal aunt and that relationship goes unchallenged on the part of the defence. He is the resident of the same village and claimed that he used to visit the house of Sengavalli Ammal every week. Even on the day prior to her death, i.e. on 16th May, he had met her. He further claimed that he used to see a two-row gold chain, five bangles and two ear-studs on her person as she usually used to wear the same. In his evidence, he has identified the said ornaments. Unfortunately for the defence even in the cross-examination of this witness, he had asserted to have seen the said ornaments on the person of Sengavalli Ammal on 16th May. His proximity with Sengavalli Ammal by relationship, stay in the same village, his usual visits to Sengavalli Ammal, his assertion that she used to normally wear those ornaments have not been challenged in the cross-examination. A bare suggestion has been thrown at the witness but the most important is that the nature of suggestion is rather strange wherein it is claimed that there was no theft of jewels or that the accused had no role in the commission of the offence or that he has been tutored by the police to depose falsely to incriminate the accused. It is absurdly suggested to the witness that one of the relatives had taken away the jewels of the deceased and the death of the deceased was due to the falling of the deceased from the cot on the floor and that there was no murder. His evidence is corroborated by the evidence of his wife Shantha (P.W.5). Even she has reiterated the relationship as also the fact that Sengavalli Ammal used to wear the said ornaments usually. The most important circumstance which corroborates the version of P.W.1 is his report made to the police wherein he had mentioned about the wearing of these ornaments very graphically and also given the correct description of these ornaments. He also asserted that those ornaments were missing from her person when he saw her in the dead condition. There is no challenge to the version of Shantha (P.W.5). Thus, the evidence of these two witnesses regarding the identification of the ornaments and their having been stolen goes unchallenged. Their version that these ornaments used to be worn by the deceased all the time has also gone unchallenged.

11. Chandra (P.W.2) is the witness who had seen the deceased at about 2’o clock in the early morning between 16th and 17th May. She has also spoken about the gold chain, bangles and the ear-studs which were missing. Even she has identified the ornaments. Her evidence has gone unchallenged and in fact it has been brought in the crossexamination that the deceased used to wear the ornaments all the time.

12. The evidence of Kannammal (P.W.3) has been relied upon by the prosecution as she was the first witness who had seen the deceased lying dead on the cot with bleeding injury on her head. The evidence of Radha Chettiar (P.W.4) has been relied upon by the prosecution again for the same reason. Even he has spoken about the ornaments. He is the one who has informed P.W.1 about the death of Sengavalli Ammal. He is a shop-keeper and used to know the deceased for more than twenty years. P.W.4 is also a resident of the same village. There is nothing very particular about the evidence of P.Ws 2, 3 and 4 excepting P.Ws 2 and 3 also referred to the ornaments and their versions have gone unchallenged.

13. In the absence of any challenge to the evidence of these witnesses and in view of the close proximity of these witnesses with the deceased, it has to be inferred that they had all the opportunity to watch the old lady who used to be always wearing the ornaments. It cannot be forgotten that the deceased was an old lady of about 80 years and, therefore, if she wore the ornaments all the time, it would be easily noted by the residents of the village and more particularly by her relations and acquaintances. The claim of the P.W.1 and P.W.5 that they identified the ornaments in the police station and their identification in the court has gone totally unchallenged. Therefore, it has to be inferred that the prosecution has proved that the ornaments identified in the court were the ornaments of the deceased Sengavalli Ammal and that when the dead body of Sengavalli Ammal was found these ornaments were not there on the body.

14. Kannan (P.W.7) is a very important witness. He is a resident of the same village and it was in his presence that the inquest report was prepared by the Investigating Officer. After the accused was arrested on 31st May, it was in the presence of this witness that the accused is said to have agreed to make discoveries. In his evidence he has clearly referred to the statement of the accused that if he was taken to the place of occurrence, the accused would show the big stone which was used by him and also he would show the pawn-broker shop and also identify the ornaments. In the admissible portion (Ex.P-6) of the confession statement the accused has clearly agreed to show the stone which was used for the murder of Sengavalli Ammal and he has also agreed to take them to his house and produce the clothes worn by him at the time of committing the crime, the two-row gold chain and the pawn-receipt. He has also agreed to show the shop where he had pawned some of the ornaments as also the shop where he had sold some of the ornaments.

15. Accordingly, the police party and this witness were taken by the accused and at the house of Sengavalli Ammal the accused identified the stone (M.O.8). The witness also claimed that the police party and the witness were thereafter taken by the accused to his house at Sedarpet and from where the accused took out one violet blue white stripped cotton lungi (M.O.9) and blue and brown colour striped polyester full-hand shirt (M.O.10), a gold two-row chain (manathakkali chain) (M.O.3) and one pawn ticket bearing No.6487 (Ex.P.8) suggesting that on 17th May, the accused had pledged some ornaments in his own name with one Vijayalakshmi Bankers at Thirukkanur. The Investigating Officer recovered these material objects and Ex.P-8. P.W.7 proved Ex.P-9, which is the seizure mahazar. The witness then goes on to say that the accused took the police party to Vijayalakshmi Bankers at Thirukkanur at 4.30 P.M. where the accused identified the shopowner and stated that he had pledged five gold bangles (M.O.4). There a seizure mahazar was executed vide Ex.P-10. According to the witness, thereafter the police party was taken by the accused to Pondichery near Neelumandi market to a jewel shop near Neelumandi Market in Pondichery wherein, the shop-owner was identified by the accused and he was told that he had sold the two ear-studs (M.O.5). The gold studs were seized and a seizure mahazar was executed vide Ex.P-11, which was attested by this witness. It is thereafter that on the way to Katterikuppam, the accused took the police party to Thiruchittrambalam Koottu Road and also identified the pawn-broker shop as well as the owner thereof and told that he had earlier pledged the said gold ear studs in the shop and had also redeemed the same from him. It seems that the owner of the shop agreed to give the pawn-ticket which he had kept at his own residence. In his cross-examination, it was tried to be suggested that he was not present on 17th May at the time of inquest. It was further suggested that he had put his signature only at Katterikuppam Police Station. He was also asked about the name of the owner of the Vijayalakshmi Bankers but, he correctly told that the said shop was situated on the main road, near a petrol bunk, in Thirukkanur. He also admitted that the four bangles were of one design while the remaining one was of different design. However, there is nothing much in his cross-examination to suggest that this witness was speaking falsely. There is not even a suggestion that the ornaments were not taken out by the accused from his place and from the pawn-shops or that the ornaments were already there in the police station. There is practically no cross-examination on the material aspect of the discovery. Except an insipid suggestion, nothing more was suggested to the witness. When we see the Exs.P-9, P-10 and P-11, it is clear that the ornaments of the descriptions mentioned in them were actually recovered at the instance of the accused.

16. The learned counsel pointed out that the discovery of the stone was almost farcical because the stone was lying in the scene of occurrence for fourteen days. It must be remembered that the particular stone was not discovered by the accused. What was discovered was the fact that the stone was used by him. As it is, nothing much would turn on the discovery of the stone excepting that on its examination the origin of the blood could not be detected as the bloodstains were disintegrated. We are not impressed by this discovery because ordinarily the Investigating Officer would have and should have seized those articles and sent them for chemical analysis. That would have been a better course to follow by the Investigating Officer but, for the reasons unknown, the Investigating Officer did not even bother to seize the blood stained stone which he must have and which he ought to have found on 17th May when he saw the dead body. That would have clinched the issue as to whether the said stone was used for murdering Sengavalli Ammal. In the absence of that, it must be held that the prosecution has not been able to connect the stone with the crime. This takes us to the evidence of P.Ws 8 and 9, viz. Rajendran and Arvind Jain respectively, who are pawn-brokers.

17. Rajendran (P.W.8) claimed in his evidence that on 17th May the accused had come to his shop and pledged the bangles for Rs.5,000/- and he had issued a pawn-ticket for that purpose. He also identified Ex.P-8, which is the pawn-ticket issued by him. He claims that on 3 1st May, the accused came to his shop and had identified himself before the Inspector. The Inspector had also shown the pawn-ticket and he had taken out the bangles and handed them over to the Inspector. It was suggested to this witness that the accused had not pawned the bangles and that he had not stated before the police about the date and time when the accused had come to his shop for pledging the bangles. He was made to admit that he had obtained the signature of the accused on the duplicate copy of the pawn-receipt and the said duplicate copy was not recovered by the police from him. He also admitted that he had described the said bangles as “sada valayal” (ordinary bangles). There is practically no cross-examination and whatever crossexamination has been made is absolutely insipid which can be termed as “purposeless cross-examination”. True it is that the duplicate copy of the pawn-receipt was not recovered by the police but, there is nothing to challenge his version that the accused had actually pledged the said bangles. There is no reason for this witness to falsely implicate the accused and indeed nothing suggested in his crossexamination.

18. More or the less is the story of the evidence of Arvind Jain (P.W.9). He also claimed that on 17th May, the accused had come to his shop and pledged two gold ear-studs for a sum of Rs.750/- and thereafter had redeemed the said studs on 20th May. He has also supported the version that on 31st May, the accused came to his shop along with the police party and identified him. He, however, claimed that since this pawn-ticket was kept in his house, he was not able to produce the same and he produced the same only on 5th June. There is very little challenge and the only circumstance that was tried to be established was that Ex.P-12 pawn-ticket was not received by the police on the same day, i.e. on 31st May. It was brought out in the crossexamination that he used to take the signature of the pawnee at the time of pledging the jewels and that the signature of the pawnee would be found in the duplicate copy of Ex.P-12. He also admitted that though the duplicate copy of Ex.P-12 was available in the shop containing the signature of the accused meaning thereby that the Investigating Officer had failed to seize the same. A very strange suggestion has been given to him in the cross-examination, which is as follows:

“I deny the suggestion that the original pawn ticket i.e. Ex.P12 was very well available on 31-5-1993 in my shop itself. I deny the suggestion that the signature of the accused found in Ex.P-12 was obtained by me at the instigation of the police only on 5-6-1993 and that the accused never pledged M.O.5 series in my shop and received a sum of Rs.750/-.” Unfortunately, this suggestion establishes that the police had actually come to his shop on 31st May. It also establishes that the signature which is found on the original Ex.P-12 is that of the accused. It is not known as to why this witness given to falsely implicate the accused by obtaining his signature on the pawn-ticket (Ex.P-12). This demolishes the very defence of the accused that he had not pawned the ornaments vide Ex.P-8 and Ex.P-12. We have closely seen Ex.P-8 and Ex.P-12. Both the exhibits bear the signature of the accused. Once it comes from the defence itself that it was the signature of the accused on Ex.P-12, the wind is taken from the sail of the defence case. True it is that the duplicates have not been seized by the police. Perhaps, they were not seized because the original pawn-tickets themselves were made available. Ex.P-8 seems to have been available from the accused which is natural because he had actually pawned the ornaments and had not redeemed the same while Ex.P-12 has been made available from the shop-owner as the accused had redeemed the said gold ear studs and, therefore, it would be obvious that the said pawnticket would be along with the shop-owner. These exhibits clinch the issue.

19. The learned defence counsel, however, every heavily criticised the prosecution and pointed out that Janakiraman, from whose shop the gold ear-studs were recovered, was not examined at all. It was pointed out that the accused would not have firstly pawned the gold studs and then would not have redeemed them only for selling them again to Janakiraman. This was unnatural. The learned counsel, therefore, urges that the evidence of Ex.P-12 and the discovery of the pawnshop where the accused had allegedly pawned the gold studs was extremely unnatural and was only a “manufactured evidence” solely for the purpose of implicating the accused.

20. We do not think so. It cannot be ignored that the accused might have required the money and, therefore, pawned the gold studs. Once the money came from pawning the gold bangles, he might have redeemed the same because he was in requirement of the ornaments for his sister’s marriage. At least that is the evidence of P.W.13. As to why the accused sold the same again to Janakiraman though mysterious cannot be ruled out completely because of the clinching evidence on the part of the relative witnesses in identifying the gold ear-studs and the defence apathy to deny the evidence of identification of those gold studs. If the gold studs are established to be belonging to Sengavalli Ammal and if it is established further they were not on her person when she was found dead and further it is established that they were brought before the court and got identified by the witnesses, their identity is established. We do appreciate that Janakiraman should have been examined because it was from his possession that the gold studs were recovered though at the instance of the accused. It is reported that Janakiraman could not become available to the court in spite of the summons. We feel in the circumstances the court should have taken further action of securing the presence by issuing a warrant against the said Janakiraman. In our opinion, the learned Public Prosecutor should have insisted upon that. Be that as it may, once we accept the evidence of P.W.7 who also identified the gold studs the missing link in the circumstances is established that it was the accused who had sold the said gold ear-studs to Janakiraman because the fact remains that the gold studs were recovered from his shop and the said gold studs were ultimately identified by the witnesses in the court.

21. There is undoubtedly another circumstance brought out by the prosecution in the evidence of Selvam (P.W.10) in whose presence Ex.P-1 2, which was given by Arvind Jain, was seized. This also provides further corroboration to the story of P.W.9 Arvind Jain who had categorically stated that the pawn-ticket (Ex.P-12) was not available with him on 31st May and, therefore, he had produced the same on 5th June when the Inspector of Police seized the same from him.

22. All this evidence has been corroborated by the Investigating Officer Karuppiah (P.W.16). P.W.16 has deposed about the whole investigation including the arrest of the accused on 31st May. He has explained that he suspected the accused on account of the evidence of Amudha (P.W.13). Amudha’s evidence is to the effect that the accused came to her offering his sister in marriage to her son Shivakumar and promising to pay Rs.5,000/- along with a gold chain and bangles. Amudha had absolutely no reason to unnecessarily implicate the accused. She is a simple village lady. She used to know the accused and beyond a denial and an ineffective suggestion that she had not so stated before the Police, nothing has been brought in her cross-examination. Again, it is not as if she had failed to state about the visit of the accused. It was tried to be suggested that there was an omission regarding the visit of the accused on 18th May at about 4.30 P.M. There is nothing, however, put to the Investigating Officer who had recorded her statement and, therefore, we must hold that

this part of the cross-examination and particularly the first suggestion put has become meaningless.

23. All this evidence clinchingly proves that the accused, who was the resident of the same place, was in possession of the gold ornaments which were ordinarily worn by Sengavalli Ammal immediately after her death, the possession of which cannot be explained by him. That it was the accused who produced the gold chain from his possession and it was he who had pledged the ornaments and sold the same later on. We, therefore, accept the prosecution case to that extent. Once it is proved that the accused was almost immediately in possession of the stolen articles like the ornaments of Sengavalli Ammal the accused is connected with the crime at least with the aid of Sec.114(a) of the Indian Evidence Act and it can be held on that basis that the accused is the thief and has stolen those ornaments. The learned Public Prosecutor points out that the accused could not be said to be merely a “receiver” of stolen property because his act of pawning/selling the ornaments would only go to suggest that he was a thief. It is, therefore, established that the accused had robed Sengavalli Ammal of her ornaments on the fateful night between 16th and 17th May, 1993 and the learned Sessions Judge is correct in recording a finding to that effect.

24. It will have to be further examined as to whether it could be the accused and the accused alone who injured Sengavalli Ammal for the purposes of the said theft or robbery, as the case may be. Now it was obvious that all the witnesses have said unanimously that Sengavalli Ammal used to wear these ornaments on her person and she usually wore them permanently. If that is so, unless Sengavalli Ammal was incapacitated or injured or for that matter killed, the said ornaments could not have been removed. It will be seen that Sengavalli Ammal was seen at 2’o clock at night by Chandra (P.W.2) for collecting the cow-dung. If the accused had tried to remove the ornaments, she would have certainly raised din which would have been dangerous for the accused. Therefore, it can be presumed that it was accused only who was responsible for the injuries of Sengavalli Ammal. Unless he had immobolised Sengavalli Ammal by injuring her or otherwise, it would have been impossible for him to rob Sengavalli Ammal and carry away the booty. It can therefore be safely held that the accused could be booked with the aid of Sec.114(a) of the Indian Evidence Act and the presumption raised under that section can be extended even to the extent of holding that it was the accused who was the author of the injuries. It cannot be forgotten that the theft of the ornaments from the person of Sengavalli Ammal and her being injured were the effect and cause respectively. Unless Sengavalli Ammal was immobilised, the theft of the ornaments could not have taken place. Thus, it is obvious that the causing of the injury to Sengavalli Ammal was thus an inseparable part of the transaction. Sengavalli Ammal must have been immobilised because of the injury and then alone the accused could have stolen the said ornaments from her person. The trial judge was, therefore, absolutely correct in convicting the accused of the offence under Sec.392 I.P.C. for the offence of robbery.

25. The learned Public Prosecutor, however, very heavily pressed for the conviction under Sec.302 I.P.C. The learned Public Proseuctor points out that the accused had committed the murder by causing an injury on the head of Sengavalli Ammal with the aid of a stone. He could have easily known that the injury which is caused on the head of Sengavalli Ammal would be sufficient in the ordinary course of nature to cause death. The learned Public Prosecutor says that the offence of causing such injury which could easily be termed within the meaning of “thirdly” under Sec.300 I.P.C. was nothing but the part of the same transaction of robbery or as the case may be theft and therefore, the presumption raised under Sec.114(a) could be extended and with that the accused was rightly convicted for an under Sec.302 I.P.C. also. In this behalf the learned Public Prosecutor relied on the celebrated judgments of the Apex Court in Gulab Chand v. State of M.P., Mukund v. State of M.P., and Shri Bhagwan v. State ofRajasthan in which the Supreme Court has extended the said presumption raised under illustration (a) to Sec.114 of the Evidence Act to the further offence of murder.

26. The learned counsel for the defence, however, very earnestly points out that the prosecution could not rely upon those cases firstly because in those decisions the factual panorama was entirely different. The learned counsel for the defence urges that in this case, it must be remembered that the accused had gone to the house unarmed even if it is presumed that it was the accused who had robbed the Sengavalli Ammal of the ornaments. The learned counsel points out that even the nature of the injuries on Sengavalli Ammal do not suggest that they have been caused by some sharp weapon or for that matter any other weapon. He invites our attention to the medical evidence of Dr. Srinivasan (P.W.11), who has suggested that the injuries could have been caused by a hard and blunt weapon like stone. Learned counsel points out that the fact that the accused had used that particular stone in committing the offence is almost farcical because the stone was already lying there and any Investigating Officer having ordinary common sense would have seized the stone and sent it to the Serologist. It should have occurred at least after the post mortem report that the stone could be the vital weapon. The learned counsel points out that it is difficult to read any intention on the part of the accused to cause murder because had that been so, the accused would certainly been armed with some weapon and the user of any other weapon is completely ruled out in this case or at least it is not proved by the prosecution. The learned counsel, therefore, pointed out further that the presumption cannot be extended further in the matter of conviction of the accused. He, therefore, urged that the accused should be acquitted of the offence under Sec.302 I.P.C. and should be only convicted under Sec.392 of I.P.C. for robbery and for causing injury. The learned counsel relies on the latest celebrated decision of the Supreme Court in Limbaji v. State of Maharashtra 2002 (1) CRIMES 63 (SC) and points out that there, the Apex Court refused to extend the said presumption to the offence of murder. We will take the stock of these decisions now.

27. In Gulab Chand v. State of M.P. (AIR 1995 SC 1598), the Apex Court took into consideration that the appellant Gulab Chand was in possession of the ornaments of the deceased who was robed and murdered. Referring to the judgment Sawant Khan v. State of Rajasthan (AIR 19 56 SC 54) to the effect that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. The Apex Court had tested the circumstances independently. It noted that immediately on the next day of the murder, the accused had sold some of the ornaments belonging to the deceased and rest of the articles were recovered from his house at his own instance. The Apex Court further went on to hold that there was no possible explanation given by the accused for the possession of the said ornaments immediately after the murder had been committed. The Apex Court, therefore, held that the murder and robbery were the integral parts of the same transaction and, therefore, the Apex Court held that under the presumption arising under illustration (a) to Sec.114 of the Evidence Act, it could be held that not only the appellant committed the murder of the deceased but also committed robbery of her ornaments. The learned Public Prosecutor has very heavily relied on this judgment.

28. The second decision relied upon was Mukund v. State of M.P. (1 997) 10 SCC 130. There, the observations in paragraph 9 were heavily relied upon. The Apex Court had observed that if in a given case the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter, the stolen properties were recovered, the court may legitimately draw a presumption not only of the fact that persons in whose possession the stolen articles were found committed the robbery but also that he committed the murder. Reliance was placed for this proposition on Gulab Chand case, cited supra.

29. The same principle was then upheld by the Supreme Court in Shri Bhagwan v. State of Rajasthan (2001) 6 SCC 296. The Supreme Court referred to the cases of Gulab Chand and Mukund, cited supra. Here also, after quoting the observations in Gulab Chand case, the Apex Court found that the appellant could not give an explanation as to how he came into possession of various gold ornaments and other articles belonging to the members of the deceased family and he also could not give any reasonable explanation as to how he sustained injuries on his body and how his shirt became bloodstained. The learned Public Prosecutor, therefore, seeks the confirmation of the finding by the Sessions Judge to the guilt under Sec.302 against the accused.

30. The above three cased undoubtedly correctly support the prosecution claim. However, it will be seen that there are some different shades of facts in all the three decisions stated above.

31. In Gulab Chand’s case, the ornaments were found in the house of the accused which was opened by the keys supplied by the accused himself. It was also found that the accused had sold the ornaments to one Balraman and had also signed the register maintained by the said Balraman in proof of selling the ornaments. Not only that but in the test identification parade the recovered ornaments were also duly identified. However, it may be pointed out that from the facts of that case, it does not become clear as to in what manner the said offence of murder was committed or as to in what manner Gulab Chand had come in possession of the articles.

32. In Mukund’s case, there was clear evidence that the deceased Sarita and her two children were done to death by using a dagger – a sharp weapon. All the vessels of the neck of Sarita were cut. So also the necks of the other two children were found to be cut. The bhujali (dagger) with which the murders were committed was also seized from the accused and was found to be bloodstained. So also the clothes and the nail cuttings of Mukund (accused) were found to be bloodstained. Therefore, obviously, there was no question of questioning the intention of the accused and it was the forgone conclusion that the only idea was of committing the murder.

33. Shri Bhagwan was a case of murder of five members of a house at night and theft of ornaments and other articles. Therefore, this was a case of multiple murders that too, by a person who was known to the family. In this case also, the weapon used was a broken iron kunta and a pair of iron scissors as also an axe which were bloodstained. The nature of the weapons used in this case, therefore, was clear enough to point out only one intention and that was to commit murder.

34. In the instant case, however, it was not as if the accused was a known person to the deceased Sengavalli Ammal. This is also not a case of multiple murders. On the other hand, as rightly argued by the learned counsel for the defence, the accused must have sneaked into the house totally unarmed. It will be seen that in this case the prosecution has not led any evidence to suggest as to what happened in the house of Sengavalli Ammal. The injury on the person of Sengavalli Ammal do suggest that it was not caused by any sharp weapon and must have been caused by some blunt weapon like stone. Therefore, it is difficult to read the intention on the part of the accused to commit murder.

35. A very heavy reliance was placed by the learned counsel for the defence on Limbaji v. State of Maharashtra 2002 (1) Crimes 63 (SC). The learned Judges of the Apex Court have taken a complete resume of the existing law on the subject including the two decisions in Gulab Chand and Mukund, cited supra. They found that Gulab Chand case stood apart from the other cases as in other cases, there were additional circumstances against the accused which were proved. Even we have shown that in Mukund case, as also in Shri Bhagwan case, there were additional circumstances. The learned Judges then pointed out that the approach of the court and the ratio in the decision in Gulab Chand case could not be preferred to the larger Bench decision in Sanwanth Khan case. The learned Judges found that whether the ratio of the decision in Gulab Chand case was in consonance with the earlier larger three-Bench decision in Sanwanth Khan case was at least a debatable issue and, therefore, the learned Judges preferred to follow the decision in Sanwanth Khan case. The learned Judges then came to the conclusion that the person or persons who removed the ornaments worn by the deceased themselves inflicted the wounds in the process of removing them. There was evidently a hush-hush operation to run away with the booty without allowing much time to pass. The learned Judges further went on to note that causing of the injuries to the deceased in the process of removal of the earrings was inextricably inter-linked with the commission of the theft and thus the accused would be guilty for the offence under Sec.394 I.P.C. on the basis of the presumption raised under illustration (a) to Sec.114 of the Evidence Act. The Apex Court further, however, chose to follow the course adopted in Sanwanth Khan case in not extending the presumption beyond theft in the absence of any other incriminating circumstances excepting the possession of the ornaments belonging to the deceased soon after the crime. However, the learned Judges then went on to hold that in the “ peculiar circumstances” of the case, it would be unsafe to hold the accused guilty of murder assuming that murder and robbery had taken place as a part of the same transaction. The reason given by the Supreme Court was that the death of the deceased Baburao was caused by hitting him with a stone lying on the spot. So also, the prosecution had not proved that the appellant had carried any weapon with them or that the injuries were inflicted with that weapon. Relying on this, the learned counsel for the defence suggests that the situation is no different in this case and, therefore, there should be a complete acquittal from the offence under Sec.302 I.P.C. The learned Public Prosecutor, however, immediately pointed out that further the Apex Court went on to note that there were three accused persons in that case and the Supreme Court had observed as follows: “There is every possibility that one of the accused picked up the stone at that moment and decided to hit the deceased in order to silence or immobilise the victim. If the idea was to murder him and take away the ornaments from his person, there was really no need to forcibly snatching the ear-rings before putting an end to the victim. It seems to us that there was no premediated plan to kill the deceased. True, common intention could spring up any moment and all the three accused might have decided to kill him instantaneously for what ever reason it be. While that possibility cannot be ruled out, the possibility of one of the accused suddenly getting the idea of killing the deceased and in furtherence thereof picking up the stone lying at the spot and hitting the deceased cannot also be ruled out. Thus two possibilities confront us. When there is reasonable scope for two possibilities and the Court is not in a position to know the actual details of the occurrence it is not safe to extend the presumption under Section 114 so as to find the appellants guilty of the offence of murder with the aid of S.34 I.P.C. While drawing the presumption under Sec.114 on the basis of recent possession of belongings of the victim with the accused, the Court must adopt a cautious approach and have an assurance from all angles that the accused not merely committed theft or robbery but also killed the victim.” (emphasis ours)

36. The learned Public Prosecutor pointed out that in Limbaji case, cited supra, the Supreme Court was faced with two possibilities and in that case it was not certain as to which of the accused had committed the act of hitting the stone. The learned counsel, therefore, urged that this is not the case where there could be such two presumptions of the conflicting nature which would be available to the court because in this case, it was the sole accused and, therefore, he alone could be the author of the injury. There can be no doubt that in Limbaji case the rigour of Gulab Chand case is watered down to a great extent relying on Sanwanth Khan case and the two-Judge Bench has not chosen to follow the Gulab Chand case wherein the accused was straight away held guilty of murder on the basis of his recent possession of the stolen articles. However, in this case, because of the peculiar factual circumstances, we cannot ignore the situation that the accused alone could have been the author of the injury which possibility was not there or at least was in doubt in Limbaji case. If the presumption under illustration (a) to Sec.114 Evidence Act is to be drawn then, it is obvious that it was the accused alone who was the author of the injury but again, things do not stop there. Could the accused have had the intention of committing murder of Sengavalli Ammal? In our opinion, the fact that the accused was not armed with any weapon though he sneaked into the house of Sengavalli Ammal and used a stone to immobilise Sengavalli Ammal would go to show that accused did not have the intention to commit murder. It must be seen that it was during night that the offence took place. Even if the accused had used the stone, it is difficult to believe that he used that stone solely with the idea of committing murder. It could have been used with an idea to inflict an injury and to immobilise Sengavalli Ammal. We cannot forget that there was only one injury found on the left frontal temporal scalp of Sengavalli Ammal. There was absolutely no other injury on her body. Therefore, in our opinion, the offence committed by the accused would fall under Sec.304 Part-II. The accused must be held to have “knowledge” that such bodily injury would result in death particularly because Sengavalli Ammal was an old lady of 80 years. We accordingly hold the accused guilty under Sec.304 Part-II and set aside his conviction under Sec.302 I.P.C. The appeal is thus partly allowed. Now the question of sentence.

37. The learned counsel for the defence argued that the accused had unmarried sisters and it was out of his compulsion to earn money for getting them married that the accused had committed the offence. In our opinion, the Sessions Judge has correctly awarded the sentence for an offence under Sec.392 I.P.C. In our opinion, the sentence of seven years of rigourous imprisonment will be sufficient to meet the ends of justice. Needless to mention that both the sentences would run concurrently.

38. We appreciate the efforts of the learned defence counsel as also the learned Public Prosecutor.

Index:Yes

Website:Yes

(V.S.S., J.) (A.P., J.)

Jai 26-04-2002

Assistant Registrar

/TRUE COPY/

Sub Assistant Registrar (C.O./Stat)

To:

1. The Principal Sessions Judge, Pondichery

2. The Sub Divisional Judicial Magistrate, Pondichery 3. The Judicial First Class Magistrate, Pondichery 4. The Public Prosecutor, Pondichery

5. The Inspector General of Police, Pondichery

6. The Superintendence of Police, Pondichery

7. The Superintendent of Central Prison, Pondichery V.S. SIRPURKAR, J.

And

A. PACKIARAJ, J.

Judgment in

Crl.A.No.222 of 1996

26-04-2002 


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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