CRL A/39/2002 of R.GANESAN Vs STATE BY INSPECTOR OF POLICE on 28 December 2004

COMMON JUDGMENT

V.KANAGARAJ,J

The above Criminal Appeals have been preferred againstthe judgment dated 31.10.2001 rendered in S.C.No. 86 of 2001 bythe Court of II Additional Sessions Judge, Coimbatore, therebyconvicting the appellants/accused for the commission of offencespunishable under Sections 302 read with 34 and 392 I.P.C. andsentencing them to undergo imprisonment for life for the offenceunder Section 302 r/w 34 I.P.C. and to undergo rigourous imprisonment for five years and each of them to pay a fine ofRs.1000/- in default to undergo rigourous imprisonment for afurther period of 6 months for the offence under Section 392I.P.C. further directing the sentences to run concurrently.

2. The case of the prosecution is that A1 to A3 arefriends; that the deceased Srinivasan is the goldsmith and heoriginally belonged to Andipatti but he was staying atCoimbatore at the scene of occurrence in the second floor of thebuilding where the occurrence took place;; that on 29.8.2000 atabout 4.30 a.m. A1 to A3 assembled at the scene of occurrencewith the common intention to commit murder of Srinivasan and tocommit theft of gold jewels and they knocked at the door andwhen Srinivasan opened the door, A2 closed the mouth ofSrinivasan with his hands, A3 assaulted him with 'Thottilkattai'on the head of Srinivasan, and further caught hold of the handsof Srinivasan and pushed him into the bathroom. In the course ofthe same transaction A1 tied the legs of Srinivasan with a pieceof bed-sheet, A3 tied his hands from the backside with anotherpiece of bed-sheet and thereafter A1 strangulated the the saidSrinivasan with a piece of bed-sheet with intention to killhim, as a result of which the victim Srinivasan died of asphyxiadue to compression of the neck; that immediately after the saidact the accused committed theft of 191.8 grams of gold jewelsbelonging to the deceased Srinivasan and hence, the charge forthe commission of offence punishable under Sections 302 r/w 34I.P.C and 392 I.P.C.

3. The Court of II Additional Sessions Judge, Coimbatore,having conducted a trial in which the prosecution has broughtforth oral and documentary evidence and the material objects, ofwhich for the oral evidence 15 witnesses have been examined asP.Ws. 1 to 15 and for documentary evidence 28 documents havebeen marked as Exs. P.1 to P28, besides marking 25 MaterialObjects as M.Os. 1 to 25 in proof of the case of theprosecution to the standards required under law that is 'proofbeyond reasonable doubts' and having appreciated the evidenceplaced on record the Court of II Additional Sessions Judge,Coimbatore, had ultimately arrived at the conclusion held theappellants/accused No. 1 to 3 guilty of the commission ofoffences under Sections 302 r/w 34 and U/s 392 I.P.C. and hadsentenced them as aforementioned.

4. It is only challenging the said conviction andsentence as arrived at and ordered by the Court of IIAdditional Sessions Judge, Coimbatore, as per its judgment dated31.10.2001 the above convicts 1 to 3 have come forward to preferthe above Criminal Appeals each independently on certain groundsas brought-forth in the grounds of Appeals such as that theCourt below failed to see that the prosecution has not broughthome the guilt of the appellants beyond all reasonable doubts;that the Court below has further failed to seen that each andevery circumstance relied on by the prosecution does not pointto the guilt of the appellants; that the court below erred inconvicting the appellants merely on the basis of allegedrecovery of jewels and on the basis of confession statement ofthe co-accused; that the court below ought to have seen that theappellants have been falsely implicated and convicted withoutany material whatsoever. On such grounds, the appellants wouldultimately pray to set aside the conviction and sentence passedat by the trial Court in its judgment and would pray to set themat liberty.

5. Heard the learned counsel appearing on behalf of theappellants and the learned Additional Public Prosecutorappearing on behalf of the respondent State.

6. During arguments, learned counsel appearing on behalfof the appellants besides narrating the facts and events as ithas been put forth on the part of the prosecution before theCourt below would also point out certain vital aspectsencircling the oral and documentary evidence, particularlypointing out that the trial Court has based its conviction andsentence depending wholly on the circumstantial evidence ofP.W.2, P.W.3 and P.W.4; that the facts disclosed do notconstitute an offence under Section 302 r/w 34 I.P.C. especiallywhen the accused persons were not seen with the deceased by anywitness of the prosecution; that since the deceased's room waslocked by P.W.4 and the key was given to the deceased, there isno evidence regarding the entry of the deceased into his roomon a specific time by any witness; that admittedly the entirecase was charge-sheeted only on the basis of the circumstantialevidence and there is no eye-witness to the alleged occurrencesaid to be committed by the accused; that mere recovery ofarticles on the basis of confessions given by the appellantsitself can not be the sole ground to prove the charges framed

against them unless reliable and cogent evidence has been let inby the prosecution against the accused to prove their guilt;that in this case the alleged recovery said to be made by therespondent at the instance of A-1 from the house of A-3 createdoubts as to the genuineness of the story of the prosecution;that when the entire case is based on the circumstantialevidence and there is no eye witness to the alleged occurrence,the duty of the prosecution to prove the charges framed againstaccused by way of cogent and chain of circumstances withoutleaving to any doubt and the same should be proved beyond allreasonable doubts as laid down by the highest court of thisland; that the evidence of P.W.7 is totally contradicted fromhis statement before the respondent since he is said to haveheard the alleged occurrence from the A-1 much earlier than thefirst informant P.W.1 and his evidence is only in the nature ofextra judicial confession; that whether the deceased was in thehabit of locking the door from inside while he was sleeping inthe night was not mentioned; that if the door has a lockingfacility inside the room, the accused persons entry is not atall possible in the early morning; that since the other inmatesare there both in the first floor as well as in the secondfloor, if the inside lock was broken open by the accusedpersons, it must be heard by the inmates; that the prosecutionfailed to explain how the accused persons entered the room tocommit the murder; that the prosecution miserably failed toenquire the neighbours and inmates residing in the first andsecond floors especially when the occurrence took place in theearly morning at 5. a.m.

7. The learned counsel would further submit that P.Ws. 2and 3 are the persons who have seen the accused immediatelyafter the commission of the offence on 29.8.2001, but P.W.1 gavecomplaint only on 31.8.2001 and strangely P.Ws. 2 and 3 havebeen examined by the police only on 3.9.2001 and 4.9.2001; thatfrom the statement whether he saw the accused after thecommission of offence must be known to the persons those whoare the occupants of the neighbouring rooms of the deceased, butno one was examined immediately; that according to P.W.9 on20.8.2000 he handed over 285.79 grams of gold and placed orderswith the deceased Srinivasan for manufacture of 145 ear-studseach weighting 2 grams, but in Ex.P.10 it is mentioned as 244.31grams; that this difference would give doubt in the case ofprosecution; that according to the prosecution with the aid of 'Thottil Kattai' A3 assaulted on the head of the deceased,strangely neither the 'Thottilkattai' nor the blood-stain wassent for chemical examination; that no jewel was recovered fromA3; that just to link the person with the evidence they recordedthe statement and recovered 'Thottilkattai' that is not relevantto the offence at all; that the jewels recovered from theaccused are not identified by any person even through P.W.9 whois alleged to have given gold to the deceased or through P.W.4who assisted the deceased in making the jewels; that theprosecution never tried to identify the jewels through P.W.4;that according to prosecution one Nazar was employed to break-open the lock of the door, but he was not examined by theprosecution. On such arguments, they would pray for acquittalof the appellants.

8. The learned counsel for the appellants would also citethe following judgments reported in

(i) 2001(3) SCC 451 (Kanthai Mishra alias Kanthaiya Misra

v. State of Bihar)

(ii) 2001(8) SCC 722 Limbaji & Others v. State ofMaharashtra)

(iii) 2003 CCR 20 (SC) (Kantilal @ K.lL.Gordhandassoni v.State of Gujarat)

9. So far as the first judgment cited above is concernedit is held therein:

" Circumstantial evidence can be reasonably madethe basis of an accused person's conviction if itis of such a character that the same is whollyinconsistent with innocence of the accused and isconsistent only with his guilt. The incriminatingcircumstances for being used against the accusedmust be such as to lead only to a hypothesis ofguilt and reasonably exclude every possibility ofinnocence of the accused. In a case ofcircumstantial evidence the whole endeavour andeffort of the court should be to find out whetherthe crime was committed by the accused and thecircumstances proved form themselves into acomplete chain unerrignly pointing to the guilt ofthe accused. If the circumstances proved againstthe accused in a case are consistent either with the innocence of the accused or with his guilt, heis entitled to the benefit of doubt."

10. In the second judgment cited above it is held:

" With regard to the first circumstance, learnedSessions Judge held that it will not lead theprosecution anywhere, especially in view of thefact that, as stated by PW3, there was a publiclane behind his house which was used by thevillagers. This is a reasonably possible viewthat could be taken. The High Court had givenundue weight to this circumstance and we do notthink that the High Court was justified in itsapproach."

11. In the third judgment cited above, it is held:

"From the evidence produced by the investigatingagency in the form of evidence of P.W.11, it isseen that there is entry to show that on 9th ofApril, 1994 one Kantibhai G.K. Lal sold two goldingots of PW 11 and received Rs.35,000/- for thesame. But then we must notice this is not anentry made by PW 11 himself. It is an entry madeby one Soni Kanti Bai, who has not been examinedby the prosecution. Further, this part of PW11'sevidence will have to be evaluated in thebackground of the fact that this witness hadearlier denied that the appellant had sold thegold to him, if so, there is no explanation as tohow this entry came tobe made. The mostdamaging part of this part of the prosecution caseis that this fact of the appellant having sold thegold ingots and receiving Rs.35,000/- from PW 11is not put to the accused in his Section 313,Cr.P.C. examination. "

12. On the contrary, the learned Additional PublicProsecutor appearing on behalf of the respondent would submitthat the accused persons and P.Ws. 2,3 and 4 are residing in thesame area and therefore, they must be known to each other andhence there is no problem in identifying the accused by P.Ws. 2

to 4 ; that P.W.2 has seen the accused 1 to 3 coming out fromthe residence of the deceased Srinivasan immediately after theoccurrence; that the specific evidence of P.W.2 would show thathe had suspicion over the accused; that P.W.4 is none other thanthe brother of A1 who was working with the deceased for sometime and demanded money for his marriage expenses, for whichhis master refused and in that situation A1 had the motiveagainst the deceased; that A2 and A3 are the friends of A1; thatP.W.7 is the important witness with whom A1 gave extra judicialconfession on 29.8.2000.

13. The learned Additional Public Prosecutor wouldfurther submit that murder and robbery are the integral partsof transaction and that both cannot be separated. It is for theaccused to explain about the possession of articles belonging tothe deceased as contemplated under Section 114A and 106 ofEvidence Act. At this junction he would cite a decision of theHon'ble Apex Court reported in 2001(1) SCC Criminal 323 (GuraSingh v. State of Rajasthan) wherein it is held:

“Extra judicial confession, if true and voluntary,it can be relied upon by the court to convict theaccused for the commission of the crime alleged.Despite inherent weakness of extra judicialconfession as an item of evidence, it cannot beignored when shown that such confession was madebefore a person who has no reason to state falselyand to whom it is made in the circumstances whichtend to support the statement. That the evidencein the form of extra judicial confession made bythe accused to witness cannot be always termed tobe a tainted evidence. Corroboration of suchevidence is required only by way of abundantcaution. If the court believes the witness beforewhom the confession is made and is satisfied thatthe confession was true and voluntarily made, thenthe conviction can be found on such evidencealone. It is not open to the court trying thecriminal case to start with a presumption thatextra judicial confession is always a weak type ofevidence. It would depend on the nature of thecircumstances, the time when the confession ismade and the credibility of the witness who speakfor such a confession.”

“The retraction of extra judicial confession whichis a usual phenomenon in criminal cases would byitself not weaken the case of the prosecutionbased upon such a confession. An unambiguousextra judicial confession possesses high probativevalue force as it emanates from the person whocommitted the crime and is admissible in evidenceprovided it is free from suspicion and suggestionof any falsity. However, before relying on thealleged confession, the court has to be satisfiedthat it is voluntary and is not the result ofinducement, threat or promise envisaged underSection 24 of the Evidence Act or was broughtabout in suspicious circumstances to circumventSections 25 and 26. The court is required to lookinto the surrounding circumstances to find out asto whether such confession is not inspired by anyimproperorcollateralconsiderationorcircumvention of law suggesting that it may not betrue. All relevant circumstances such as theperson to whom the confession is made, the timeand place of making it, the circumstances in whichit was made have to be scrutinised.”

On such arguments, the learned Additional Public Prosecutorwould pray for dismissal of the above Criminal Appeals.

14. In consideration of the facts pleaded, having regardto the materials placed on record and upon hearing the learnedcounsel for all the appellants in the above Criminal Appeals andthe learned Additional Public Prosecutor contra, what could beassessed from the facts and circumstances of the case and inevidence is that it is a case of murder for gain in which theoccurrence has taken place on 29.8.2000 at 4.30 a.m. and theaccused were the appellants/convicts 1 to 3 who are friends ofwhom the first appellant Ganesan was once employed by thedeceased in his jewellery business. Since the appellant Ganesandemanded money for the expenses of his ensuing marriage and thesame having been denied by the deceased Srinivasan, aggrieved heenlisted the other two appellants and all the three joininghands with each other having gone to the place of residence cumbusiness and with intent to cause his murder and rob the jewels,on 29.8.2000 at 4.30 a.m. they having knocked at the doors of the deceased, the moment the deceased Srinivasan opened thesame, the second appellant having closed his mouth with hishands, the third appellant assaulted him with the‘Thottilsattam’ on his head and further holding his hands frombehind pulled him inside the bathroom when the first appellanttied his legs, the third appellant tied his hands from behind,and with the common object of causing murder of the deceasedSrinivasan while the first appellant held his legs, the secondand third appellants strangulated him to death by a piece ofbed-sheet cloth, thus all the three appellants who were theaccused Nos. 1 to 3 respectively before the trial Court becameliable to be prosecuted and punished for the commission of theoffence under section 302 r/w Section 34 I.P.c. and on the samedate, place and time and in the course of the same transactionthe appellants/accused 1 to 3 robbed all the gold studs weighing191.9 grams, thus, the appellants 1 to 3 became liable to bepunished for the commission of the offence under Section 392I.P.c.

15. As already seen above, the prosecution whose duty itis to prove its case beyond all reasonable doubts has examined15 witnesses, and marked 28 documents besides marking 25material objects in proof of the case to the standards requiredunder law, in appreciation of which in the context of the factsand circumstances of the case of the prosecution and inapplication of the law on the subject, the trial court hasarrived at the conclusion to convict and sentence all the threeappellants herein in the manner aforementioned. It is onlytestifying the validity of the judgment of the lower Court, theappellants have come forward to prefer the above appeals oncertain grounds as brought forth in the memorandum of theappeals.

16. A careful perusal of the judgment of the trial Courtwould reveal that the said court having traced the facts pleadedin the case of the prosecution and thereafter assessing theevidence adduced by each and every witness and the documentaryevidence and the material objects placed on record through thosewitnesses examined and framing its own points for considerationwould also start bringing the circumstances encircling the wholeof the prosecution case as revealed through all the materialsplaced on record such as P.W1 the owner of the building whereinthe deceased was a tenant having gone to the place of residence

of the deceased in the second floor as usual on 31.8.2000 andsince the door was locked from inside he had looked insidethrough the window, when he sensing a bad smell, with the helpof two other persons, he would lodge the complaint in Ex.P1 tothe police. The trial Court would also establish the identityof the deceased through P.W1's evidence. P.W.15 the Inspector ofPolice and Investigating Officer then visiting the spot havingmade arrangements to break open the door would see inside, thebody of the deceased Srinivasan his hands, legs and neck tiedwith rope and the body was in a decomposed state.

17. The lower Court would also trace the events thatfollowed, P.W.15 initiating such measures to hold the inquest,conduct the post-mortem through P.W.11 and would obtain P.13Post-mortem Certificate and would carefully go into the opinionoffered by the expert medical witness to the effect that thedeceased would appear to have died by 48 to 72 hours prior tothe autopsy due to asphyxia due to compression of the neck andtherefore, easy conclusions have been arrived at by the trialCourt that the death of the deceased was not natural buthomicidal.

18. The trial Court would then go into the other aspectsrevealed through the investigation by P.W.15 in the examinationof the witnesses and while the Investigating Officer was on thesearch with the help of the local Village Administrative Officerand his assistants he was able to cause the arrest of the firstand second appellants and recording their confession statements,would cause recovery of M.O.3 cycle under the cover of Ex.P4mahazar and thereafter recovery of M.O.7 series numbering 30kept inside M.O.4 resin bag and M.O.8 series numbering 36 andthe M.O.9 series numbering 42 and M.Os. 10 to 12 series underthe cover of Ex.P5 mahazar and thereafter would recover M.Os. 13series numbering 14 and M.O.15 series numbering 50 from theresidence of the second appellant under the cover of Ex.P16recovery mahazar.

19. The learned trial Judge would then focus hisattention on the vital evidence adduced on the part of theP.W.7 through whom the appellant Ganesan had given extra-judicial confession regarding the commission of the offence andthereby robbing the M.Os. from the place of the deceased and itis this witness who advised the appellant Ganesan to surrender and in the extra-judicial confession the appellant Ganesan wouldalso reveal that joining hands with the other appellants hereinthey all perpetrated the crime.

20. The trial Court would then assess the evidence ofP.W.13 with whom 22 grams of gold items were sold for a sum ofRs.8,100/- on 29.8.2000 and again on 30.8.2000 certain otheritems for a sum of Rs.10,500/- and the ingots weighing 49.40grams i.e. M.O.20 has been recovered on 28.10.2000. Likewisethe other entrustments and recoveries of the gold jewels wouldbe accounted for through proper evidence and the identificationof those jewels to be belonging to the deceased Srinivasan wouldalso be appreciated by the trial Court.

21. The learned trial Judge would then assess thecircumstantial evidence made available for the commission of theoffence through P.W.1, the owner of the building, P.W.2 theneighbour who knew the first appellant since he was workingunder the deceased particularly P.W.2's evidence who saw theappellant Ganesan on 29.8.2000 at 5.30 a.m. coming out of theresidential portion of the building locking of the door andkeeping the key with him. This witness would also see thepockets of the appellant Ganesan appeared bulging and when hequestioned without answering anything the appellant Ganesan hadleft the place and thereafter P.W.2 would also leave for hisnative place and on coming to know of the occurrence he hadinformed the police about himself having seen appellant Ganesanon 29.8.2000 at the place of the deceased. Likewise, P.W.3 whoused to stay with the deceased would pay visit to his place on29.8.2000 at about 5.00 a.m., when he would see a cycle parkedat the entrance of the building and all the three appellantscoming from the residential portion of the deceased and he wouldalso see the pockets of the appellant Ganesan appeared bulgingand the second appellant keeping a wooden log in his hand andwhen this witness enquired about the deceased, they did notreveal anything and thereafter this witness on seeing the doorlocked had gone away from that place and these informationswould be divulged to the police on coming to know of theoccurrence.

22. The trial Court would then assess the evidence ofP.W.5 in whose residence the third appellant was a tenant andthis witness would also supply with the circumstantial evidence of the third appellant having come along with the otherappellants on 29.8.2000 in the early morning at 4.00 A.M. andthey would all leave the place at that time together and thiswitness would also identify all the three appellants by name.Likewise, P.W.4 would also supply with circumstantial evidencein a reliable manner and this witness being the brother of theappellant Ganesan would also supply with the motive for themurder of the deceased since the first appellant was notsupplied with the money by the deceased which was demanded byhim for the purpose of his marriage just prior to the occurrenceand from the evidence of this witness not only the fact that thefirst appellant was deliberately in search of money through somesource or other but also this witness would account for all theappellants conferring together during the night of theoccurrence and from the evidence of this witness thecircumstance that all the three appellants joining hands witheach other went to the place of residence of the deceased thatnight and the commission of the offence and the motive behindthe offence and the strained relationship in between theappellant Ganesan and the deceased immediately prior to theoccurrence would be taken note of by the trial Court.

23. The trial Court from these witnesses and theirdepositions would find natural evidence adduced on their part soas to serve as a chain of successive events through thecircumstantial evidence and would also consider the argumentsadvanced on the part of the both, the prosecution and thedefence, further considering the other evidence made availableon record and ultimately reject the contentions of the defenceand having faith the evidence adduced by the witnesses and thecircumstances created through their evidence particularly therecovery of the items of jewels and the manner in which theyhave been recovered from the appellants particularly from thefirst and second appellants herein and would arrive at theunshakable conclusions to hold that the prosecution has broughthome the guilt of all the above three appellants so as to awardthe punishments mentioned supra.

24. In the process of arriving at such conclusions thetrial Court has not only brought forth the evidence and hasdiscussed the merit of the same with the legal parameters so asto ultimately arrive at the conclusion to hand-down theconvicting judgment. Whether it is the conclusion arrived at by the trial Court or the manner in which the said conclusions havebeen arrived at are beyond suspicion and this Court is not ableto see any error of law or perversity in approach whether it isconcerned with the discussions held on facts and circumstancesor the appreciation of evidence and therefore, the interferenceof this Court sought to be made on the part of the appellants isneither necessary nor warranted in the circumstances of thecase.

25. It is not only the evidence of P.Ws. 2 and 3 servingas strong circumstances in seeing the appellants coming from theplace of residence of the deceased closing the door and theappellant Ganesan keeping the key with him and both his pantpockets appeared bulging with the articles stuffed into the sameand the other circumstantial evidence supplied by P.W.1, P.W.4and P.W.5 leading to the arrest of all the appellants and therecoveries effected through them from proper witnesses andaccounting for those jewels robbed from the house of thedeceased and all these circumstantial evidence coupled with themedical and police evidence have unerringly supplied the linkagefor the trial Court to arrive at the conclusion that the murderof the deceased was committed by all these appellants joininghands with each other at the time, place and in the manneralleged by the prosecution and therefore, valid conclusions havebeen arrived at by the trial Court to convict and sentence allthe three appellants in the manner aforementioned which does notat all require any interference by this Court and hence with thefollowing judgment:

In result,

(i) all the above Criminal Appeal Nos.39 of 2002, 594 of2002 and 853 of 2002 preferred by appellants No.1 to 3respectively do not merit acceptance and they become only liableto be dismissed and they are dismissed accordingly;

(ii) the judgment dated 31.10.2001 rendered by the Courtof II Additional Sessions Judge, Coimbatore, in S.C.No.86 of2001 thereby convicting all the appellants/accused for thecommission of the offences punishable under Section 302 r/w 34and 392 I.P.C. and sentencing them to undergo imprisonment for life under Section 302 I.P.C. and for R.I. for 5 years and topay a fine of Rs.1000/- i/d to undergo R.I. for further sixmonths under Section 392 I.P.C. and the sentences to runconcurrently are hereby confirmed.Sd/Asst.Registrar /true copy/

To

Sub Asst.Registrar

1. THE II ADDITIONAL SESSIONSJUDGE, COIMBATORE2. THE PRINCIPAL SESSIONS JUDGECOIMBATORE3. THE SUPERINTENDENT,CENTRAL PRISONCOIMBATORE4. THE INSPECTOR OF POLICEB8, VARIETY HALL POLICE STATIONCOIMBATORE5. THE DISTRICT COLLECTORCOIMBATORE6. THE DIRECTOR GENERAL OF POLICECHENNAI

7. THE PUBLIC PROSECUTORHIGH COURT, MADRAS JUDGMENT IN C.A.NOS.39,584 & 853/2002je (co)28.12.2004bp