incriminating evidences cumulatively indicates that the appellant along with Shyamala had committed the offence and taken the jewels of the deceased with him to raise money. Some of the contradictions in the deposition of certain witnesses, particularly, the

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 21.12.2021

Delivered on : 12.01.2022

CORAM:

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN
and
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

Crl.A.(MD)No.11 of 2019

Ramesh, S/o.Ramar … Appellant / Accused

-vs-

State Rep. by
The Inspector of Police,
Thallakulam Crime Branch Police Station,
Madurai City.
(Crime No.1321 of 2015) … Respondent / Complainant

Prayer:- Appeal filed under Section 374(2) of Cr.P.C., to call for the records and set aside the judgment of conviction and sentence passed in S.C.No.255 of 2016, dated 29.11.2018, on the file of the learned Sessions Judge, Mahalir Neethi Mandram, Madurai.

For Appellant : Mr.N.Anantha Padmanabhan
for Mr.G.Karuppasamy Pandiyan

For Respondent : Mr.A.Thiruvadikumar
Additional Public Prosecutor

JUDGMENT

[Judgment of the Court was made by Dr. G.JAYACHANDRAN, J.]
This Criminal Appeal is filed to set aside the judgment of conviction and sentence passed in S.C.No.255 of 2016, dated 29.11.2018, on the file of the learned Sessions Judge, Mahalir Neethi Mandram, Madurai.

2. On 20.11.2015 at 19.00 hours, the Inspector of Police, D-1 Tallakulam (Crime Branch) Police Station, Madurai, registered a case in Crime No.1321 of 2015 on the complaint made by Thiru.N.Kumaragurubaran informing the homicide death of his daughter Pavithra at her residence in first floor, Door No.16/35, Old Agraharam Street, Chinnachokkikulam, Madurai.

2.1. The investigation revealed that Shyamala (A-1) a tailor by profession along with her male friend Ramesh (A-2) conspired to murder Pavithra for gain. In furtherance of the common intention, taking advantage of their acquaintance with Pavithra, on 20.11.2015 confirming that she is alone after her mother-in-law working as Assistant in TNEB will left for her duty, A-1 and A-2 went to the house of Pavithra after 10.30 a.m. under the pretext of delivering stitched clothes. Pavithra offered Tea to them. They took Tea. Then, A-1 caught the hands of Pavithra from behind. A-2 strangulated her with a nylon rope. Since she struggled and did not die, A-2 stabbed around her neck with a small knife, brought with him. The knife blade gave way from its handle. Then, A-1 brought two knives from the kitchen and gave one to A-2. With that knife, A-2 stabbed Pavithra’s neck repeatedly. The knife went deep below jaw and got struck. A-1 hit on the head with a iron knife used for peeling coconut.

2.2. Pavithra died of shock and hemorrhage particularly due to the stab injury 2 cm x 1 cm x muscle deep 6 cm below the jaw, which passes through the underlying vessels, trachea, muscle and ends between cervical vertebra C5 and C6. And due to the cumulative effect of 6 stab injuries around the neck (3 on the right side, 2 on the left side and 1 in the middle of the neck) and cut injury measuring 2.5 cm x 1 cm x bone depth just above the outer aspect of left eyebrow.

2.3. After voluntarily causing the death of Pavithra, A-1 and A-2 removed the Krishnan dollar gold chain (19 grams) from Pavithra. Opened the wooden bureau and stolen a twisted gold chain (7 sovereigns), 3 sets of gold studs (20 grams). A-2 gave one set of stud to A-1 and took the other jewels with him. A-2 pledged the Krishnan dollar chain for Rs.34,700/- at Muthoot Finance with the help of his friend by name, Pandi [P.W.18] and rest of the jewels (a twisted gold chain and two studs) at State Bank of India, Chinnamanur Branch, with the help of his friend by name Sumothu [P.W.22].

2.4. On 26.11.2015, A-1 and A-2 were arrested from the residence of A-1. Based on A-2’s confession statement, the dollar chain redeemed from Muthoot Finance and the blood stained jeans pant of A-2 kept in his Room No.102, Thirupathi Lodge, where A-2 was staying for the past 5 years, were recovered. Again A-2 was taken custody by police, vide order of the learned Judicial Magistrate, dated 02.12.2015 and based on his further confession, the jewels pledged at State Bank of India, Chinnamanur Branch, in the name of A-2’s friend, were recovered.

2.5. Based on the final report and the documents relied by the prosecution, the learned Judicial Magistrate No.II, Madurai, committed the case to the Court of Sessions. The learned Principal District Judge took the case on file in S.C.No.255 of 2016 and made over to the Mahalir Neethimandram, Madurai, for trial. The trial Court after furnishing copies of documents relied by the prosecution, framed charges against A-1 and A-2 for the offences punishable under Sections 120-B, 449, 302 read with Section 34 and 392 of I.P.C.

2.6. Pending trial, Shyamala (A-1) absconded. Non-Bailable Warrant was issued to secure her. Since police was not able to execute the NBW, the case against Shyamala (A-1) was split up, vide proceedings of the learned Principal District Judge, Madurai, dated 27.03.2017 and numbered as S.C.No.166 of 2017.

2.7. In S.C.No.255 of 2016, the trial against A-2 proceeded. To prove the charges, prosecution examined 39 witnesses. 51 exhibits and 21 material objects were marked.

2.8. The trial Court after appreciation of evidence, held that the prosecution has proved the chain of circumstances without any break. Shyamala [A-1], a tailor by profession and Ramesh [A-2], a driver by profession, are known to each other. They were in need of money. A-1, who was residing near the house of P.W.1 (father of the deceased), used to stitch clothes for the deceased since her school days and had good acquaintance with the deceased. Taking advantage of the acquaintance and the knowledge that the deceased will be alone after her mother-in-law leave for duty, A-1 and A-2 went together to her house. Caused the death of Pavithra and robbed the jewels of Pavithra.

2.9. The newly stitched clothes (M.O.1 and M.O.2) with blood stains were found near the scene of occurrence. A-2’s room key with key chain (M.O.13) found in the house of the deceased was recovered. P.W.8 spotted both the accused within the vicinity of the deceased residence at 11.45 a.m.

2.10. P.W.6 had a glimpse of Shyamala [A-1] at the house of the deceased on 20.11.2015, when he went to the deceased house to deliver a post to the mother-in-law of the deceased.
2.11. In the course of investigation, M.O.16 (gold chain with Krishnan dollar) was recovered from the possession of the appellant based on his confession statement, dated 26.11.2015. The said Krishnan dollar chain was earlier pledged in Muthoot Finance and later, redeemed, which fact proved through Ex.P.38 Muthoot Finance Receipt-cum-Declaration.

2.12. M.O.20 (gold twisted chain) and M.O.21 (gold stud) of the deceased were later recovered from the State Bank of India, Chinnamanur Branch, based on further confession of the appellant. The said fact found corroboration from Ex.P.16 S.B.I. Chinnamanur Branch Gold Loan Register. On serology test, human ‘O’ group blood, which belongs to the deceased, was deducted from the jeans pant [M.O.18] of A-2.

2.13. The failure of the accused to explain the possession of the deceased’s jewels and the blood stains in his jeans pant, which belong to the same group of the blood found in the dress of the deceased Pavithra and in the floor near the dead body of Pavithra, were all the reasons for the trial Court to hold that the prosecution has proved that the appellant Ramesh along with co-accused Shyamala trespassed into the house of the deceased voluntarily when she was alone with intention to cause death and rob. Accordingly, stabbed Pavithra to death and robbed M.O.16 Gold chain with Krishnan dollar, M.O.20 twisted Gold chain (Murukku chain) and M.O.21 Gold stud with stone. Hence, guilty of offences punishable under Sections 449, 302 read with Section 34 and 392 of I.P.C. Not guilty of the offence of conspiracy punishable under Section 120-B of I.P.C.

2.14. Ramesh, who is the appellant herein, was convicted and sentenced to undergo imprisonment for life and fine of Rs.10,000/- in default, to undergo one year simple imprisonment for the offence under Section 449 of I.P.C. To undergo imprisonment for life and fine of Rs.10,000/-, in default, to undergo one year simple imprisonment for the offence under Section 302 read with Section 34 of I.P.C. To undergo seven years rigorous imprisonment and fine of Rs.10,000/-, in default, to undergo six months simple imprisonment for the offence under Section 392 of I.P.C. The punishment term to run concurrently and the accused is entitled for set off the period of imprisonment already undergone.

3. The judgment of conviction and sentence dated 29.11.2018, made in S.C.No.255 of 2016, on the file of the learned Sessions Judge, Mahalir Neethi Mandram, Madurai, is under assail in this criminal appeal by the accused Ramesh.

4. The case of the prosecution as spoken through the witnesses:-
Pavithra, the deceased is the daughter of Kumaragurubaran [P.W.1]. She got married on 02.07.2014 and her husband Jeyakumar [P.W.5] was employed in Dubai. Jeyanthi [P.W.2], who is employed as an Assistant in T.N.E.B., K.Pudur, is the mother-in-law of Pavithra. P.W.2 and Pavithra were residing in the first floor of Door No.16/35, Old Agraharam Street, Chinnachokkikulam, Madurai, owned by one Selvi [P.W.7]. Pavithra was making arrangement to join her husband at Dubai on 05.12.2015.

4.1. On 20.11.2015, being a Friday and Public holiday at Dubai, P.W.5 messaged Pavithra to come through Skype at 12.00 noon. Pavithra did not respond to this message. When P.W.2 tried to talk with Pavithra over phone many times, but till 03.00 p.m. she did not respond. Therefore, P.W.2 called Selvi [P.W.7], the house owner residing in the ground floor and requested her to inform Pavithra that she called her and to ask her to call back. When P.W.7 went to the upstairs to inform it to Pavithra, P.W.7 found the door unlocked and Pavithra lying in pool of blood with stab injuries. P.W.7 informed this to P.W.2 and asked her to come immediately. P.W.2 got panic and called P.W.1 and asked him to come to her house. At 05.00 p.m., P.W.1 and P.W.2, followed by other family members, reached the house and found Pavithra dead. A golden chain, which she was wearing found missing. Informing the same, P.W.1 gave a written complaint (Ex.P.1) to Tallakulam Police and it was registered by K.Ravi Sub-Inspector of Police (P.W.36) and taken up for investigation by the Inspector of Police Mr. Prem Anand (P.W.39).

4.2. The First Information Report recorded by the Police was forwarded to the learned Judicial Magistrate No.II, Madurai, through P.W.31 Soundararajan, Sub-Inspector of Police. P.W.32 – Kumar, Deputy Director, Regional Forensic Science Laboratory, Madurai, on intimation, went to the scene of occurrence on 20.11.2015 at 07.00 p.m. After completion of inquest, he removed the knife with black colour handle, struck under the jaw of Pavithra and handed over the same to the Inspector of Police. The dead body of Pavithra was lifted to Government Rajaji Hospital, Madurai, through P.W.29 – Rajkumar, Head Constable attached to Tallakulam Police Station. P.W.29 handed over the body of Pavithra to P.W.33 – Dr.Sumathi. After verifying the Memo, P.W.33 – Dr.Sumathi has issued Accident Register [Ex.P.17]. The body was sent to Mortuary. On the next day, Postmortem has been conducted by Dr.Rajavelu [P.W.34] and the Postmortem Certificate is Ex.P.18. The final opinion is Ex.P.19.

4.3. On 20.11.2015, at 11.00 a.m., Mr.Abdul Kapoor [P.W.6], working in Professional Courier went to first floor of Door No.16/35, Old Agraharam Street, to deliver a letter to Jeyanthi (P.W.2). When he knocked the door and informed that he has come to deliver a letter, he heard a female voice saying she is taking bath and requested him to deliver the post downstairs. While he was climbing down the stairs, a dark skinned lady peeped her head out and slammed the doors harshly when he asked she herself received the post. He then delivered the post to P.W.7 and got her signature as acknowledgement for the delivery of post.

4.4. Corroborating the evidence of P.W.6, Mr.Ashraf [P.W.13], the Office In-charge of Professional Courier had deposed about the reason why P.W.6 delivered the post to Selvi (P.W.7), the house owner, which was addressed to Jeyanthi (P.W.2), the tenant.

4.5. P.W.17 – Shanmugampillai is the caretaker of Thirupathi Lodge. In his deposition, he has identified the accused Ramesh as inmate of the Lodge for the past 5 years and identified the key chain and key with Vinayagar and Venkatachalapaty picture on either side of the key chain as the key of the accused’s Room No.102. He has further deposed that on 20.11.2015, the accused came to the Lodge and informed that he has lost the key and requested to break open the lock and provide another lock and key. Accordingly, he provided another lock and key to the appellant Ramesh. The broken lock identified and marked as M.O.17.

4.6. Dr.Rajavelu (P.W.34), the Doctor, who conducted the Postmortem, issued the Postmortem Certificate [Ex.P.18], wherein the following antemortem injuries were noted:-
”(1) In the neck, following stab injuries are noted:-
On the left side of the neck:-
(a) An oblique stab injury with pointed edges measuring 2.5 c.m. x 1 c.m. x muscle deep noted, 5 cm below the jaw.
On dissection:- The wound passes through the underlying tissues up to the muscle.
(b) An Oblique stab injury with pointed edges 2 cm x 1 cm x muscle deep on noted 6 cm below the jaw.
On dissection:- The wound passes through the underlying vessels, nerves upto the muscles.
(c) Horizontally oblique stab injury with pointed edges, measuring 3 cm x 1 cm x bone depth, 8 cm below the jaw.
On dissection:- The wound passes through the underlying vessels, trachea, muscle and ends between cervical vertebra C5 and C6.
(2) In the neck – on the right side:-
(a) An oblique stab injury 5 cm below the jaw with pointed edges, measuring 2 cm x 1 cm x muscle deep.
On dissection:- The wound passes through the underlying vessels, nerves and upto the muscle.
(b) An oblique stab injury 6 c.m. below the jaw with pointed edges measuring 2 cm x 1 cm x muscle depth.
On dissection:- The wound passes through the underlying vessels, nerves and upto the muscle.
(3) In the middle of the neck:-
(1) An oblique stab injury 8 c.m. below the jaw with pointed edges measuring 2.5 c.m. x 1 c.m. x muscle deep.
On dissection:- The wound passes through the underlying vessels, nerves and upto the muscle.
(4) Cut injury measuring 2.5 c.m. x 1 c.m. x bone depth noted just above the outer aspect of left eyebrow.
(5) Multiple ligature marks in a criss-cross manner noted below the jaw on the lower part of left side of neck.
(6) Linear abrasion measuring 8 c.m. noted just above the umbilicus in the middle of the abdomen on the left side.
(7) Curved linear abrasion measuring 1 m.m. noted on the right side of the neck and cheek. – Fixed postmortem lividity noted on the face, lower part of the chest and abdomen.”

4.7. The following 13 items were sent to the Regional Forensic Science Laboratory, Madurai, for examination:-
”Item 1 : A black blouse with white dotted design on which were profuse dark brown stains.

Item 2 : A red blouse with yellow jari border on which were dark brown stains.
Item 3 : A green chudidhar shawl with red, green, black and white floral border design on which were dark brown stains.
Item 4 : A green towel with brown and white border stripe on which were dark brown stains.
Item 5 : A rusty metal knife (Njq;fha; vLf;Fk; fj;jp) measuring about 20 c.m. in length on which were dark brown stains.
Item 6 : A shining metal knife with black synthetic handle and measuring about 19 c.m. in length on which were dark brown stains.
Item 7 : A shining metal knife measuring about 16 c.m. in length and a shining metal knife piece measuring about 7 c.m. in length on which were dark brown stains.
Item 8 : A red synthetic handle measuring about 9 c.m. in length on which were dark brown stains.
Item 9 : A red synthetic rope measuring about 288 c.m. in length on which were dark brown stains.
Item 10 : Cement plaster pieces on which were dark brown stains.
Item 11 : Cement plaster pieces.

Item 12 : A torn brown chudidhar pant with red, green and white floral design on which were dark brown stains.
Item 13 : A red chudidhar tops with green, violet, red and white embroidery floral design on which were dark brown stains.”

4.8. As per Ex.P.23, except in item 11 (cement plaster pieces without blood collected from the scene of crime), in all other items, human blood was detected. As per the Serology Report Ex.P.24, except in items 5, 7, 8 and 9, which are the coconut peeling metal knife, shining metal knife piece without handle, red colour knife handle and synthetic rope respectively, in all other items, human blood belongs to ‘O’ group was detected. In the Jeans pant of A-2, recovered from his hotel room, ‘O’ group human blood was detected as per Ex.P.25 and Ex.P.26 respectively. However, the blouse and saree recovered from the residence of A-1 when subjected to biological test, the laboratory gave negative report for human blood.

4.9. P.W.7 Selvi was the first person to see the body of Pavithra in the pool of blood. On her information, P.W.1, the father of the deceased, P.W.2, the mother-in-law of the deceased, P.W.3 the mother of the deceased, P.W.4 the sister-in-law of the deceased came to the residence of the deceased. P.W.5 is the husband of the deceased. He was in Dubai on the date of occurrence. All these witnesses have spoken about the acquaintance of the first accused Shymala with the deceased and her visit to the deceased house earlier either alone or in company with the appellant Ramesh.

4.10. P.W.8 Vignesh Kumar’s mother Vijayamalini is first younger sister of Jeyanthi (P.W.2). P.W.9 Keerthiraj’s mother Ambigapathi is the second younger sister of Jeyanthi (P.W.2). P.W.8 and P.W.9 had corroborated the evidence of P.W.1 to P.W.5 about the earlier visits of Shymala to the deceased house to deliver stitched clothes and to collect new cloth for stitching. That apart, P.W.8 had also deposed that on 20.11.2015 at 11.45 a.m. while he was proceeding to his aunt’s house, near Tamukkam Ground, he saw A-1 and A-2 tensely crossing the road at the Old Agraharam Street corner.

4.11. P.W.10 Sivasubramaniam is the father of P.W.8. He and his wife (Vijayamalini) came to the scene of occurrence after receiving the information. He has deposed that for the birthday of Pavithra, Jeyanthi came to his house and collected the chain and three studs. He had deposed what he observed on the scene of crime. He, in the re-examination, had deposed that he know A-1, who is the Tailor for Pavithra (deceased) and he had seen Shymala along with Ramesh moving in a two wheeler.

4.12. P.W.11 Radha is the friend of P.W.1. He accompanied P.W.1 to the Police Station to give the complaint Ex.P.1. He wrote the complaint on the dictates of P.W.1.

4.13. P.W.12 Rajesh is son-in-law of P.W.2. He is the witness for the Observation Mahazar Ex.P.3 and the recovery of 14 material objects from the scene of crime. He affixed his signature [Ex.P.4] in the seizure mahazar Ex.P.32.

4.14. On 26.11.2015 at 17.30 hours, the Tallakulam Police arrested Shyamala and Ramesh found together at Door No.26, 3rd Street, Ahimsapuram, Sellur, Madurai. The appellant Ramesh gave a statement to the Investigating Officer, Prem Anand, Inspector of Police (P.W.39), confessing his guilt. The admissible portion of the confession statement is Ex.P.36. P.W.14 Gopalakrishan and P.W.15 Sivaganesh are the witnesses to the confession statement dated 26.11.2015, leading to recovery of Krishnan dollar chain M.O.16, broken silver lock M.O.17, blood stained jeans pant M.O.18 and S.B.I. jewel loan voucher in the name of Sumothu M.O.19 from Room No.102, Thirupathi Lodge. In the recovery mahazar [Ex.P.34], P.W.14 has affixed his signature [Ex.P.6] and the other witness Sivaganesh signature is Ex.P.8.

4.15. P.W.18 – Pandi, the friend of accused Ramesh, has deposed that on 20.11.2015 at 01.00 p.m., the accused Ramesh called him over phone and requested him to come near Guru Theatre, since he wants his help to pledge the chain. When P.W.18 met the accused Ramesh near Guru Theatre, the accused Ramesh requested him to pledge the gold dollar chain in the name of the witness, since the appellant has no residential proof with him. P.W.18 had pledged the gold dollar chain at Muthoot Finance, Bethaniyapuram, for Rs.34,700/-, got receipt and handed over it to the accused Ramesh. Again, on 26.11.2015, at 10.00 a.m., the accused Ramesh called him and informed the witness that he wanted to redeem the chain and therefore, asked the witness to meet him near Guru Theatre. Accordingly, the witness went to Muthoot Finance, redeemed the jewel and handed it over to the accused Ramesh. When the Police interrogated him on 27.11.2015, he identified the photograph of the accused and informed about the pledging of gold chain on 20.11.2015 and the redemption of it on 26.11.2015.

4.16. The appellant Ramesh was remanded to judicial custody and thereafter, police custody was sought for further interrogation. Accordingly, two days police custody was granted on 03.12.2015. The appellant Ramesh was interrogated in the presence of Sulthan Alaudeen [P.W.23] and Chinnathambi [P.W.24]. The appellant Ramesh disclosed that State Bank of India, Chinnamanur Branch, loan voucher recovered from his room on 26.11.2015 relates to jewels robbed from the deceased’s residence and the jewels were pledged in the name of his friend Sumothu [P.W.22] and he can identify his friend Sumothu and also the jewels, which he has pledged in the Bank. Sumothu [P.W.22], who was staying at Coimbatore, was identified by the accused on 04.12.2015 and the following jewels were recovered under Mahazar Ex.P.40 by Sulthan Alaudeen [P.W.23] and Chinnathambi [P.W.24] in the presence of Sumothu [P.W.22].
(i) A twisted gold chain weighing about 7 sovereigns
(ii) A pair of gold stud with stone jimikki weighing about 11 grams.
(iii) A pearl stud weighing about 4 grams.
The above said recovered jewels were identified by P.W.1, P.W.2 and P.W.3. During the trial, the valuables were returned to P.W.1 for interim custody and the same were produced by P.W.1 for marking.

4.17. The pledging of one gold stud and two chains by one Sumothu at the State Bank of India, Chinnamanur Branch, vide A.G.L.11 / 2249 on 23.11.2015 for a sum of Rs.1,10,000/- is spoken by P.W.27 – Anbalagan, who is working as Assistant in the State Bank of India, Chinnamanur Branch and P.W.28 – Venkatesh Kannan is working as Appraiser in the said Bank. The said jewels were redeemed on 05.12.2015, vide Bank receipt Ex.P.16.

4.18. During the course of investigation, the statement of witnesses, viz., P.W.7 – Selvi, P.W.17 – Shanmugampillai, P.W.18 – Pandi, P.W.20 – Nagarani, P.W.22 – Sumothu and Ramkumar [not examined] has been recorded by the learned Judicial Magistrate under Section 164 of Cr.P.C. The learned Judicial Magistrate, who recorded the previous statement of theses witnesses, was examined as P.W.35. The previous statements are marked as Ex.P.20.

4.19. P.W.39, the Investigation Officer, who has conducted investigation and filed final report, had deposed about the evidence collected by him in the course of investigation and the evidence incriminating the accused.

5. The accused Ramesh assails the judgment of the trial Court on the ground that having held that the prosecution failed to prove the theory of conspiracy between the appellant and Shyamala, ought not to have convicted the appellant, who had no proximity or motive to murder Pavithra. The witnesses to the prosecution, particularly, P.W.32, the Deputy Director of Forensic Science Laboratory, Madurai, had deposed that he received a telephone message about the murder on 20.11.2015 at 06.40 p.m. and he reached the scene of occurrence by 07.00 p.m., whereas, the F.I.R. came to be registered only at 19.00 hours, which indicates that the investigation commenced even prior to registration of the F.I.R. and therefore, the complaint [Ex.P.1], upon which, the F.I.R. [Ex.P.21] registered is not the real first information.

6. The learned counsel for the appellant would also draw the attention of this Court to the evidence of P.W.7 – Selvi, who is the first person to notice the murder. She, in her chief-examination, had deposed that soon after seeing the dead body of Pavithra at 03.00 p.m., she climbed down the stairs and informed her husband. He immediately, called 100 and informed the Police about the occurrence. P.W.12 – Rajesh had deposed that he reached the scene of occurrence at 04.30 p.m. and in the cross-examination, he admitted that when he reached the scene of occurrence, Police were present. Therefore, the learned counsel for the appellant would state that there is a possibility of suppressing the earlier complaint and the present complaint [Ex.P.1] is a fabricated one to suite the prosecution case. The case of the prosecution that the murder occurred for gain gets falsified, since none of the witnesses has identified the jewels which were alleged to have been robbed from the deceased.

7. The learned counsel for the appellant would also submit that the prosecution has failed to prove the motive or the prior meeting of mind between the accused persons in furtherance of common intention to murder Pavithra. The last seen theory projected by the prosecution is only to the effect of witnessing both the accused together and not with the victim. In any event, the evidence of the victim’s relatives, who are interested witnesses, ought not to have been considered by the trial Court, since they are not creditworthy. The embellishment and contradiction in their evidence, highlighted during the cross-examination, not been properly appreciated by the trial Court. The non-production of the sniffer dog’s report and the finger print experts report creates serious doubt over the prosecution case and runs contra to the prosecution theory. The alleged identification parade not been conducted as per the operative procedure and recovery not been properly proved by the prosecution.

8. In the case of circumstantial evidence, the prosecution is bound to prove the chain of circumstance without any break. The trial Court erred in holding that the chain of circumstances projected by the prosecution is intact and without any break, whereas, the alleged recovery of key chain for Room No.102, Thirupathi Lodge from the scene of occurrence itself is highly doubtful, since in the Photographs, the key chain is noted. The recovery of dollar chain, blood stained jeans pant and Voucher of State Bank of India, Chinnamanur Branch, in the pant pocket, all from the room of the appellant is doubtful, since the witnesses for the recovery were procured by the Police under threat and the same has been spoken by P.W.14 – Gopalakrishnan and P.W.15 – Sivaganesh.

9. The learned counsel for the appellant further submits that the evidence of P.W.27 and P.W.28 Staff of Muthoot Finance is of no assistance to the prosecution to fix the appellant herein, since Ex.P.38 document seized from Muthoot Finance Limited, does not refer the name of the appellant.

10. The learned counsel for the appellant would submit that the evidence for prosecution, on appreciation as a whole, is very shaking and the links of the chain connecting the appellant with the crime is inconclusive. Therefore, the judgment of conviction and sentence has to be set aside.

11. In support of his contentions, the learned counsel for the appellant relied on the following judgments:-
(i) Ravi @ Ravichandran vs. State, Rep. by Inspector of Police [2007 (3) Supreme 781]
(ii) Raj Kumar Singh @ Raju @ Batya vs. State of Rajasthan [2013 (5) SC 722]
(iii) Mustkeem @ Sirajudeeen vs. State of Rajasthan [2011 (5) Supreme 66]
(iv) Sattatiya @ Satish Rajanna Kartalla vs. State of Maharashtra [2008 (1) Supreme 222]
(v) Jebaraj and another vs. State, Rep. by the Inspector of Police, Arumuganeri Police Station, Arumuganeri, Thoothukudi District [2019 (4) MLJ (Cri.) 129]

12. Mr.A.Thiruvadikumar, learned Additional Public Prosecutor countering the above submissions of the learned counsel for the appellant submitted that it is a case of circumstantial evidence and the circumstantial chain been established by the prosecution without any break. The accused are not unknown persons to the family members of the deceased. P.W.1 to P.W.5 and P.W.12 had deposed how they know A1 and A2. Their evidence stands unassailed. The plea regarding procedural flaw in test identification parade has no significance and the judgment of the Hon’ble Supreme Court reported in 2007 (3) Supreme 781 [cited supra] relied by the appellant has no relevancy to the facts of the case, since the observations made in that judgment relates to identification of unknown accused by the witness. Moreover, the test identification parade is for the prosecution to ascertain whether the investigation is proceeding on the right direction. In the case in hand, A1 – Shyamala, a tailor by profession, known to the deceased and her family members for long time. She had been seen by the family members of the deceased at the time of visiting the residence of the deceased to collect and deliver the clothes. Along with her the witnesses have also seen the appellant A2 frequently moving around together. Particularly, in and around the time of occurrence, P.W.8 had seen them crossing the road, near the deceased’s residence. The key chain of Room No.102, Thirupathi Lodge, was recovered near the wooden bureau, where the accused robbed the twisted gold chain and three studs. Since the bureau was away from the dead body of Pavithra, the same is not seen in the photograph Ex.P.15 series. The evidence of the Lodge Keeper, Shanmugampillai clearly proves the prosecution case that the key chain [M.O.13] belongs to the appellant Ramesh. Because, he has lost the key at the residence of the deceased, on the day, after occurrence, the appellant had asked the Lodge Keeper P.W.17 – Shanmugampillai to break open the lock of his room and given alternate lock. The broken lock is recovered and marked as M.O.17.

13. The evidence of Pandi [P.W.18] regarding pledging of gold chain at Muthoot Finance as corroborated by the Staff of Muthoot Finance [P.W.19], directly implicates the accused/appellant. Similarly, the recovery of twisted chain and two gold studs from the State Bank of India, Chinnamanur Branch, read with the evidence of Sumothu [P.W.22] clearly completes the chain without break that the appellant is the culprit, who has committed the offence. In addition, ‘O’ Group blood was found in the jeans pant of the accused, which was recovered from his possession based on his confession statement. This fact being of conclusive, it is for the appellant to prove his innocence. The appellant had failed to explain how he got possession of the jewels worn by the deceased Pavithra and also failed to explain how his key chain was found near the dead body of Pavithra. This leads to inference that the accused is guilty of committing murder of Pavithra.

14. In support of his arguments, the learned Additional Public Prosecutor relied upon the following judgments:-
(i) Nagendra Sah vs. The State of Bihar [LL 2021 SC 457 (Criminal Appeal No.1903 of 2019, dated 14.09.2021], wherein it has been held as follows:-
”20. Thus, Section 106 of the Evidence Act will apply to those cases where the prosecution has succeeded in establishing the facts from which a reasonable inference can be drawn regarding the existing of certain other facts which are within the special knowledge of the accused. When the accused fails to offer proper explanation about the existence of said other facts, the Court can always draw an appropriate inference.”
(ii) Ravi @ Ravichandran vs. State, Rep. by Inspector of Police [2007 (3) Supreme 781], wherein it has been held as follows:-
”17. It is no doubt true that the substantive evidence of identification of an accused is the one made in the court. A judgment of conviction can be arrived at even if no test identification parade has been held. But when a First Information Report has been lodged against unknown persons, a test identification parade in terms of Section 9 of the Evidence Act, is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him. ….”

15. The point for consideration before this Court is whether the circumstantial evidence placed by the prosecution accepted by the trial Court as proved is sufficient to hold the appellant guilty and convict him to undergo life imprisonment for the murder of Pavithra.

16. The murder of Pavithra has occurred during the day time at her residence when she was alone. The father of the deceased, who saw her daughter dead with knife pierced on her neck, had noticed the missing gold chain, which his daughter was wearing. He had given the complaint to the Police narrating what he saw and what he found missing. The complaint came to be registered at 07.00 p.m. The Police might have reached the scene of occurrence even before that based on the information either by calling through 100 or otherwise, the presence of the police at the scene of occurrence prior to the registration of the F.I.R. will not nullify the case of the prosecution. The first information report is information, which sets the criminal law into motion. Though it may not be an Encyclopedia of entire crime, it must contain valuable information of a cognizable offence to proceed. The vague or cryptic information through phone or otherwise many times may not be prima facie or sufficient or substantial to register F.I.R. The information has to be prima facie ascertained and confirmed by the Police before registering complaint. In this case also, the Police would have visited the scene of crime soon after getting certain vague information just because they were present at the scene of occurrence an hour prior to the registration of the F.I.R. will not falsify the contents of the F.I.R. unless there is material to suspect overstatement or embellishment or falsity of facts in the complaint.

17. In this case, P.W.1 is the father of the deceased. He has gone to the Police Station along with his friend P.W.11. The complaint Ex.P.1 does not implicate or suspect anyone. It contains the information, which is sufficient and require for setting the criminal law into motion. The Photographs, which are marked in Ex.P.15 series as spoken by the Photographer [P.W.26] clearly show the gruesome manner, by which, the deceased Pavithra was murdered, leading to irresistible conclusion that this is a homicide death. The learned counsel for the appellant states that there is no sign of strangulation in the postmortem report. Therefore, the case of prosecution that the accused first attempted to strangulate the deceased and thereafter, stabbed her has to be disbelieved. The said contention is ill-founded in view of Injury No.5 viz., Multiple ligature marks in a criss-cross manner noted below the jaw on the lower part of left side of neck and Nylon rope [M.O.9] with blood stains found near the dead body.

18. Apart from proof of recovery of the key chain from the scene of occurrence through the witnesses, more specifically, the Mahazar witness P.W.12, the evidence led by the prosecution through P.W.17 proves that the key belongs to the appellant. These fundamental facts to incriminate the appellant remain unassailed.

19. The deposition of P.W.19 – Kasiammal, the Manager of Muthoot Finance, who had spoken about pledging of Krishnan dollar gold chain by one Pandi [P.W.18] for a sum of Rs.34,700/- and thereafter, redemption of the said jewel after six days read with the deposition of P.W.18 – Pandi, who had deposed that he knew the appellant Ramesh while he was working as a Driver in Harish Travels along with him. On 20.11.2015 at the request of accused Ramesh, he pledged one gold dollar chain at Muthoot Finance for Rs.34,700/- and later, on his request, he redeemed the same. The said dollar chain has been identified as the chain, which was found missing from the deceased Pavithra and the same has been mentioned in the complaint itself. These are very strong unimpeached proofs against the appellant to invoke the presumption under Section 106 of the Indian Evidence Act.

20. One of the contentions raised by the counsel for the appellant is that, the said gold chain was not identified by the witnesses. The said contention is factually incorrect, because the trial Court in its judgment, has clearly recorded that M.O.16, M.O.20 and M.O.21 given interim custody by order of the Court and at the time of trial, they were brought to Court by P.W.1 from his custody and marked as material objects. After marking that, the same were returned to P.W.1. The proceedings under Section 451 of Cr.P.C., being the judicial proceedings, the trial Court has rightly raised presumption under Section 114 of the Indian Evidence Act. The identity of the material objects and ownership has been ascertained while handing over the interim custody of the jewels pending trial and the same never been questioned by the accused at any point of time. Therefore, it is too late for the appellant to plead that the material objects were not identified by the witnesses when P.W.1 had already identified, took interim custody of the material objects and produced the same before the Court for marking and taken back by the order of the Court.

21. Apart from motive, this appellant was seen together near the residence of Pavithra along with Shyamala [A-1] and the said Shyamala was seen at the victim’s residence at the probable time of occurrence.

22. The third incriminating circumstance against the appellant is that the recovery of blood stained jeans pant from his possession based on his confession statement. The blood stain collected from his pant was sent to Biological test and found the blood belongs to human and the same was sent to Serological test and it confirms it belongs to ‘O’ Group blood. The deceased’s blood group is also ‘O’. It is for the appellant to explain how ‘O’ Group blood found in his jeans pant, but he has not explained.

23. The fourth incriminating circumstance is that the recovery of jewels pledged with the State Bank of India, Chinnamanur Branch. Somuthu [P.W.22] in whose name the jewels were pledged, had categorically deposed that the jewels were given by the appellant and at the request of the appellant, he has pledged the jewels. The jewels pledged at the State Bank of India, Chinnamanur Branch, was recovered subsequently after the accused was taken into Police custody. The recovery was witnessed by P.W.23 and P.W.24. The Officials of the State Bank of India P.W.27 Assistant and P.W.28 Appraiser supports the case of the prosecution regarding pledging of jewels at the State Bank of India by Sumothu [P.W.22]. It is not the case of the appellant that P.W.22 – Sumothu is a person unknown to him or a person, who has some enmity to depose against him.

24. The above incriminating evidences cumulatively indicates that the appellant along with Shyamala had committed the offence and taken the jewels of the deceased with him to raise money. Some of the contradictions in the deposition of certain witnesses, particularly, the previous statement recorded under Section 164 of Cr.P.C. and the testimony recorded subsequently in the split up case where the witnesses were summoned to give testimony for the second time again after nearly one year, are minor and not in respect of foundational facts. It is pertinent to note that these contradictions were not confronted with the witnesses specifically before confronting it with the Investigation Officer. Even otherwise, there is no substantial contradiction in their evidence in the testimony with reference to the previous statements, particularly, the statements recorded under Section 164 of Cr.P.C. in respect of the star witnesses namely, P.W.6 – Abdul Kapoor, P.W.7 – Selvi, P.W.17 – Shanmugampillai, P.W.18 – Pandi and P.W.22 – Sumothu. The testimony of these witnesses being consistent with the previous statement given to the Magistrate, recorded under Section 164 of Cr.P.C., the evidence proves as to who involved in the murder of Pavithra and robbed her jewels for gain is the appellant herein and the co-accused Shyamala. This Court is of the view that the evidence let in by the prosecution not assailed and the trial Court has rightly appreciated the evidence in proper perspective and held him guilty for the offences punishable under Sections 449, 302 read with Section 34 and 392 of I.P.C.

25. The evidence placed by the prosecution while collectively considered, leads to the irresistible conclusion that the appellant herein along with Shyamala, the co-accused alone are the perpetrators of the crime in question. Each and every circumstances such as the motive, the presence of M.O.13 Key with key chain at the house of Pavithra, the conduct of the appellant and the co-accused Shyamala soon after the occurrence as noticed by P.W.8, the recovery of Krishnan dollar gold chain, blood stained pant and the State of Bank of India, Chinnamanur Branch, jewel loan voucher, from the custody of the accused/appellant, the recovery of jewels from the State Bank of India, Chinnamanur Branch, based on the disclosure made by the appellant and the same being identified by P.W.1, confirms all the links in the chain intact without any break and incriminate the appellant and the co-accused Shyamala alone and none other. Hence, the finding of the trial Court holding the appellant guilty, is perfectly based on impeccable evidence. Therefore, the sentence imposed for the above said offences is proportionate to the crime and needs no interference.

26. In the result, Criminal Appeal (MD)No.11 of 2019 is dismissed. The judgment of the trial Court, passed in S.C.No.255 of 2016, stands confirmed. The appellant is directed to surrender before the trial Court within 15 days from today, failing which, he may be secured and committed to prison for undergoing the remaining period of sentence. The judgment passed by the trial Court regarding the material objects stands confirmed. The period of sentence shall run concurrently and the accused is entitled to set off the period already undergone by him in the prison, if the life imprisonment is commuted to a sentence lesser than the life imprisonment by the appropriate authority.

[S.V.N., J.] [G.J., J.] Index : Yes / No 12.01.2022

To

1.The Sessions Judge,
Mahalir Neethi Mandram,
Madurai.

2.The Inspector of Police,
Thallakulam Crime Branch Police Station,
Madurai City.

3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

Copy to:-
The Section Officer,
Criminal Section (Records),
Madurai Bench of Madras High Court,
Madurai.

S.VAIDYANATHAN, J.
and
G.JAYACHANDRAN, J.

smn2

Pre-delivery judgment in
Crl.A.(MD)No.11 of 2019

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