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Anbarasu= life imprisonment means rest of the life but not only for14 years =”The law, an eye for an eye makes the whole world blind”… This is a message from the father of our nation, who preached and practiced non violence, the great soul “Mahatma Gandhi”. Saint Thiruvalluvar, the great Tamil Poet, in one of his couplets, 2000 years ago, wrote thus:- “bfhiyapw; bfhoahiu Bte;(J) xWj;jy;, igA;TH;; fis fl; ljbdhL Beu;.” which means, “For a King to punish criminals with death, is like pulling up the weeds in the green corn.” The Hon’ble Supreme Court has also upheld the constitutionality of death sentence. But, the debate goes on. The matters before us pertain to the said issue where, the prime question is “To hang” or “Not to hang”, the accused before us for the heinous crimes allegedly committed by them. The Government of India awarded “Padmashri” to the first deceased “Dr.A.Malik Mohammed” in recognition of his service to the nation, but these accused awarded him death in a cruel manner along with his wife and a servant =(a). The conviction and sentence imposed on Anbarasu [Accused in S.C.No.94 of 2009] under Section 120(B) and Section 485 of the Indian Penal Code are set aside and he is acquitted of the said charges. (b). The conviction and sentence imposed on the appellant – Anbarasu [accused in S.C.No.94 of 2009] for the offences under Sections 449, 302 [two counts- charges 3 and 4], 392, 364 and 201 of the Indian Penal Code are confirmed. (c). The sentence of death imposed on the appellant – Anbararu [ accused in S.C.No.94 of 2009] for the offence under Section 302 of the Indian Penal Code [under Charge No.10] is modified and instead, he shall undergo imprisonment for life and to pay a fine of Rs.15,000/- [Rupees Fifteen Thousand], in default to undergo rigorous imprisonment for six months. (d). We confirm the direction of the Trial Court in S.C.No.94 of 2009 that the sentences shall run consecutively. (d). We further direct that Anbarasu [accused in S.C.No.94 of 2009] shall not be released from prison for the rest of his life. (iii). Referred Trial (MD).No.1 of 2010 is answered accordingly. (iv). The Suo motu Criminal Revision Case (MD).Nos.201 and 963 of 2011 are closed.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

English: Clock Tower, Nagercoil

Image via Wikipedia

DATED: 20/12/2011

CORAM
THE HONOURABLE MR.JUSTICE M.JAICHANDREN
AND
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

REFERRED TRIAL (MD).No.1 of 2010
and
CRIMINAL APPEAL (MD).No.411 of 2009
and
CRIMINAL APPEAL (MD).No.349 of 2010
and
CRIMINAL REVISION CASE (MD).Nos.201 and 963 of 2011

REFERRED TRIAL (MD).No.1 of 2010:

Anbarasu … Accused

Vs

The Deputy Superintendent of Police,
Nagercoil, Nesamany Nagar Police Station,
Crime No.784 of 2007. … Respondent/complainant

Reference under Section 366 of the Code of Criminal Procedure seeking
confirmation of the death sentence imposed on the accused in S.C.No.94 of 2009
by the learned Sessions Judge, Kanyakumari Division at Nagercoil.
Gopi @ Sahaya Puruno
… Appellant in C.A.(MD).No.411 of 2009

Anbarasu … Appellant in C.A.(MD).No.349 of 2010

Vs.

The State, rep by
The Inspector of Police,
Nesamony Nagar Police Station,
Kanyakumari District.
Crime No.784 of 2007.
… Respondent in C.A.(MD).No.411 of 2009

The State, Rep by
The Deputy Superintendent of Police,
Nagercoil, Nesamoni Police Station,
Kanyakumari District.
Crime No.784 of 2007.
… Respondent in C.A.(MD).No.349 of 2010

PRAYER IN CRL.A(MD).No.411 of 2009

Appeal is filed under Section 374 of the
Code of Criminal Procedure against the Judgment and conviction passed by the
learned Sessions Judge, Kanyakumari Division, at Nagercoil in S.C.No.97 of 2008,
dated 01.10.2009.

PRAYER IN CRL.A(MD).No.349 of 2010

Appeal is filed under Section 374(2) of the
Code of Criminal Procedure against the Judgment dated 06.09.2010 passed in
S.C.No.94 of 2009, on the file of the Court of Sessions, Kanyakumari Division at
Nagercoil.

CRL.RC(MD).No.201 of 2011:

Anbarasu … Accused

vs

The State, Rep by
The Deputy Superintendent of Police,
Nagercoil, Nesamoni Police Station,
Kanyakumari District.
Crime No.784 of 2007.
… Respondent

Suo motu Revision under Sections 397 and 401 of the Code of Criminal Procedure
against the Judgment and conviction in S.C.No.94 of 2009, on the file of the
learned Sessions Judge, Kanyakumari Division, at Nagercoil.
Gopi @ Sahaya Puruno
… Accused in CRL.RC(MD).No.963 of 2011
Vs

The State, rep by
The Inspector of Police,
Nesamony Nagar Police Station,
Kanyakumari District.
Crime No.784 of 2007.

Suo motu Revision under Sections 397 and 401 of the Code of Criminal Procedure
against the Judgment and conviction in S.C.No.97 of 2008 on the file of the
learned Sessions Judge, Kanyakumari Division, at Nagercoil.
!For Appellant in
C.A.(MD).No.349 of 2010,
Accused in CRL.RC(MD).No.201 of 2011
and Accused
in R.T.(MD).No.1 of 2010 and
… Mr.S.Asok Kumar
Senior Counsel
For Mr.C.Mayil Vahana Rajendran
For Appellant in C.A.(MD).No.411
of 2009 and Accused in CRL.R.C(MD)No.
963 of 2011.
… Mr.V.Gopinath
Senior Counsel
For Mr.P.Andiraj
^For Respondents in C.A.(MD).Nos.411
of 2009, 349 of 2010 and for the State
in Crl.RC.(MD).Nos.201 and 963 of 2011
and R.T.(MD).No.1 of 2010
… Mr.I.Subramanian,
Public Prosecutor
Assisted by Mr.C.Ramesh
and K.P.Ananthakrishnan
Additional Public Prosecutors

:COMMON JUDGMENT
************************

S.NAGAMUTHU, J.
“The law, an eye for an eye makes the whole world blind”… This is a
message from the father of our nation, who preached and practiced non violence,
the great soul “Mahatma Gandhi”.
Saint Thiruvalluvar, the great Tamil Poet, in one of his couplets, 2000
years ago, wrote thus:-
“bfhiyapw; bfhoahiu Bte;(J) xWj;jy;, igA;TH;;
fis fl; ljbdhL Beu;.”
which means,
“For a King to punish criminals with death, is like pulling up the weeds
in the green corn.”
The Hon’ble Supreme Court has also upheld the constitutionality of death
sentence. But, the debate goes on. The matters before us pertain to the said
issue where, the prime question is “To hang” or “Not to hang”, the accused
before us for the heinous crimes allegedly committed by them. The Government of
India awarded “Padmashri” to the first deceased “Dr.A.Malik Mohammed” in
recognition of his service to the nation, but these accused awarded him death in
a cruel manner along with his wife and a servant for which, they stand convicted
as follows:-

2. The appellant in Crl.A.(MD)No.349/2010 (accused in the Referred Trial
(MD) No.1/2010 – Mr.Anbarasu) is the 1st accused and the appellant in
Crl.A.(MD)No.411/2009 (Mr.Gopi @ Sahaya Puruno) is the 2nd accused in
S.C.No.97/2008, on the file of the learned Sessions Judge, Kanyakumari Division
at Nagercoil. The Trial Court framed as many as 12 charges against them, under
Sections 120(B), 449, 302 (3 counts), 201(2 counts), 379, 364, 392 [two counts]
and 472 IPC. They denied the charges and they were jointly tried. As many as
41 witnesses were examined and 74 documents were exhibited as well as 68
material objects were marked on the side of the prosecution. On the side of
defence, 3 documents were exhibited.

3. On 26.06.2009, both the accused were questioned under Section 313 of
the Code of Criminal Procedure in respect of the incriminating evidences
available against them. Both of them denied the same as false. At the end,
they submitted that they had proposed to examine witnesses on their side.
Therefore, the case was adjourned for examination of defence witnesses. At that
stage, the accused (Anbarasu) [hereinafter referred to as the “first accused”]
did not appear before the court and he absconded. Therefore, the trial court
split-up the case against the first accused, as a separate case and numbered the
same as S.C.No.94/2009.

4. The Trial Court, thereafter, proceeded with the trial in
S.C.No.97/2008, as against the accused – Mr.Gopi @ Sahaya Puruno [hereinafter
referred to as the second accused] alone. The second accused did not examine
any defence witness. After hearing the arguments on either side, the trial
court delivered Judgment in S.C.No.97/2008 as against the second accused – Gopi
@ Sahaya Puruno, on 01.10.2009. By the said Judgment, the Trial Court acquitted
him of the charges under Sections 379[7th charge] 472 [12th charge], 201 [6th
charge] and 392 [9th charge] IPC, but, found him guilty and convicted him for
offences under Sections 120-B, 449, 302 (3 counts), 392, 201 and 364 IPC. For
the said offences , the Trial Court imposed sentences upon the second Accused
– Gopi @ Sahaya Puruno, as detailed below:-
Charge No. Sentenced Quantum of Quantum of Sentence in
under substantive fine default of
Section(s) Sentence payment of fine

1 120-B IPC Life Rs.5,000/- S.I. for one year
Imprisonment

2 449 IPC Life Rs.5,000/- S.I. For one year
imprisonment

3 302 IPC Life Rs.10,000/- S.I. For two years
imprisonment

4 302 IPC Life Rs.10,000/- S.I. For two years
imprisonment

5 392 IPC Rigorous Rs.10,000/- S.I. For six months
Imprisonment
for ten years

6 201 IPC — — —
[Acquitted]

7 379 IPC — — —
[Acquitted]

8 364 IPC Life Rs.10,000/- S.I.for one year
imprisonment

9 392 IPC — — —
[Acquitted]

10 302 IPC Life Rs.10,000/- S.I. For two years
imprisonment

11 201 IPC Rigorous Rs.5,000/- S.I. For six months
imprisonment
for seven years

12 472 — — —
[Acquitted]
These sentences have been directed to run consecutively. Challenging the said
conviction and sentence, the second accused – Gopi @ Sahaya Puruno has come up
with Crl.A.(MD)No.411/2009.

5. Subsequently, the first accused – Anbarasu was secured and the Trial
Court proceeded with the trial against him in S.C.No.94/2009. On his side, he
examined one “Vickram”, the then Senior Manager of Tata Motors, as D.W.1. After
hearing the arguments on either side and on considering the evidence available
on record, the trial court delivered judgment in S.C.No.94 of 2009, on
08.09.2010. By the said judgment, the trial court acquitted the 1st accused
(Anbarasu) from the charges under Sections 379[7th charge] 472 [12th charge],
201 [6th charge] and 392 [9th charge] IPC. However, the Trial Court found him
guilty and convicted him under Sections 120-B, 449, 302 (3 counts), 392, 364,
201 and 485 IPC. For the said offences, the Trial Court imposed sentences upon
the first Accused – Anbarasu, as detailed below:-
Charge No(s). Sentenced Quantum of Quantum of Sentence in
under Section(s) substantive fine default of
Sentence payment of fine
1 120-B IPC Life Rs.5,000/- S.I. For one year
imprisonment

2 449 IPC Life Rs.5,000/- S.I. For one year
imprisonment

3 302 IPC Life Rs.10,000/- S.I.for two years
imprisonment

4 302 IPC Life Rs.10,000/- S.I.for two years
imprisonment

5 392 IPC Rigorous Rs.10,000/- S.I.for six months
imprisonment
for ten years

6 201 IPC — — —
[acquitted]

7 379 IPC — — —
[Acquitted]

8 364 IPC Life Rs.10,000/- S.I.for one year
imprisonment
9 392 IPC — — —
[Acquitted]

10 302 IPC Death Sentence,Rs.15,000/- Nil
subject to
confirmation
11 201 IPC Rigorous Rs.5,000/- S.I.for six months
imprisonment
for seven years

12 472 — — —
[Acquitted]

13 485 R.I for Rs.5,000/- S.I for six months
three years
The sentences have been ordered to run consecutively. The learned Sessions
Judge has submitted the proceedings to this court under Section 366 Cr.P.C. for
confirmation of death sentence imposed for the 10th charge. That is how the
Referred trial (MD) No.1 of 1010 is before us for disposal. As against the
conviction and sentence imposed on him, the 1st accused has come up with
Crl.A.(MD)No.349 of 2010.

6. When these Criminal Appeals and the Referred Trial came up for hearing
before this Court on 17.02.2011, this Court took-up suo-motu revisions as
against the correctness and legality of the sentences imposed on the accused in
both the cases and directed issuance of notice to the accused for enhancement of
sentence. Accordingly, CRL.RC.No.201/2011 in respect of S.C.No.94 of 2009 and
CRL.R.C.No.963/11 in respect of S.C.No.97 of 2008 are also before us for
disposal.
7. We have heard the learned Senior Counsel Mr.S.Ashok Kumar, appearing
for the first accused, Mr.V.Gopinath, learned senior counsel, appearing for the
second accused and Mr.I.Subramaniam, the learned Public Prosecutor appearing for
the State and we have also perused the records carefully.

8. Before proceeding to deal with the facts of the cases, let us highlight
the following. As we have already narrated, evidence was recorded on the side
of prosecution in common, when both the accused were jointly facing the trial in
S.C.No.97/2008. However, after the examination of accused under Section 313 of
the Code of Criminal Procedure, the case against the first accused was split-up
and separate case number was assigned as S.C.No.94/2009. Upon considering the
evidence recorded in common in S.C.No.97/2008, the learned trial Judge found the
second accused, namely Gopi @ Sahaya Puruno, guilty under various charges,
including the charge under Section 120-B of the Indian Penal Code. In the said
judgment, dated 01.10.2009, the learned Sessions Judge has given a clear finding
that under all the charges, under which the second accused was convicted, the
offences were committed by him along with the first accused. Thus, every
offence for which the second accused was convicted was perpetrated jointly by
both the accused. Thus, in the said judgment itself, the learned Sessions
Judge believed the prosecution witnesses and convicted the second accused
holding that he committed such offences, along with the 1st accused.

9. After the case was split-up, when the very same learned Sessions Judge
took up the case in S.C.No.94/2009 for further trial, as against the 1st
accused, the only addition was the examination of a defence witnesses, namely
D.W.1. Since the learned Sessions Judge had acted upon the evidences recorded
in common to hold that the 2nd accused committed the offences along with the 1st
accused, he ought not to have proceeded with the trial in S.C.No.94 of 2009, as
against the 1st accused. Since he has already come to the conclusion that the
2nd accused committed the crime only along with the 1st accused, he ought to
have made over the case to some other court for continuation of trial against
the 1st accused. Instead, the learned trial Judge proceeded with the same and
delivered judgment reiterating his findings which he had earlier arrived at in
S.C.No.97/2008. A cursory comparison of both the judgments would go to show
that many paragraphs in both the judgments are verbatim the same. Thus, it is
very obvious that when the learned Trial Judge decided S.C.No.94/2009, he had
already pre-judged the issues while he decided the case in S.C.No.97/2008
itself. Thus, in our considered opinion, the further proceedings conducted by
the learned Sessions Judge in S.C.No.94/2009 would, certainly, offend the
concept of ‘fair trial’, emanating from Article 21 of the Constitution of India.
On this ground alone, we could have set aside the entire judgment in
S.C.No.94/2009, as vitiated and to have remanded the case in S.C.No.94/2009
against the 1st accused to some other Sessions Judge for disposal, according to
law. But, we do not propose to do so for the following reasons.

10. The learned Senior Counsel Mr.S.Ashok Kumar appearing for the first
accused would submit that though the trial conducted by the same trial Judge in
S.C.No.94/2009 offends Article 21 of the Constitution of India, on that score,
he does not plead denial of ‘fair trial’ for the first accused. He would submit
that since the Referred Trial before this Court, in R.T.(MD)No.1/2010, is a
continuation of the trial conducted by the Sessions Judge and since this Court
is going to appreciate the entire evidence available on record meticulously, the
1st accused would not stand prejudiced in any manner. Therefore, according to
him, this Court can proceed to hear the appeal in Crl.A.(MD)No.349/2010 and
R.T.(MD)No.1 of 2010. The learned Senior Counsel has also filed a Memo to the
effect that he will not plead prejudice or failure of justice on account of the
trial conducted in S.C.No.94/2009 by the very same Judge, who had earlier
delivered judgment in S.C.No.97/2008.

11. Nextly, we requested the learned Senior Counsel appearing for both the
accused to express their stand as to whether this Court could deliver a common
judgment in both the cases, because the evidence on the side of the prosecution,
both oral and documentary, were recorded in common in a joint trial. As we have
already stated, except the examination of D.W.1 by the accused in
S.C.No.94/2009, all the other evidences, both oral and documentary, are all
common. Therefore, in our view, there may not be any illegality in delivering a
common judgment, on appreciating the entire evidence available on record and by
considering the evidence of D.W.1 as well. If the evidence of D.W.1 is
considered jointly, in our considered opinion, that will not cause any prejudice
to the 2nd accused also. For these reasons, the learned Senior Counsel
Mr.S.Ashok Kumar as well as Mr.V.Gopinath submitted to this Court that these two
appeals and the Referred Trial and the Suo-motu Revisions can be heard together
and a common judgment can be delivered. They have also filed separate memos to
that effect. The learned Public Prosecutor also submitted that if the accused
have no objection for delivery of Common Judgment, the State has no objection
for the same.

12. In view of the same, we heard the learned counsel on either side
jointly and we dispose of these two appeals and the Referred Trial as well as
the suo-motu criminal revisions, by means of the following common judgment.

13. Let us now move on to the facts of the case.
(i)”Padmashri” “Dr.A.Malik Mohammed” was the former Vice-Chancellor of
Cochin University in Kerala State. For quite sometime, he was the Chairman of
Central Science and Technology Commission, under the Education Department of the
Union of India. He was also Advisor to the Central Government, having the
status of the Secretary to Government. He had written a number of books, which
are of World fame. Dr.Malik Mohammed, after retirement, came down to his native
place at Nagercoil and he was staying in his house, known as “Vasantha Vikar” of
Ethamozhi Road, Pattakasaliyamvilai, Village, Kanyakumari District. (hereinafter
he shall be referred to as “D-1”). Along with him, his wife Katheeja Beevi
(hereinafter referred to as “D-3”) was residing in the said house. One
Gnanaprakasam (hereinafter referred to as “D-2”) was working as a Watchman under
D-1. D-1 had two daughters and a son. His only son is “Mr.Irfan Habeeb Malik”
(P.W.2), who was then in Australia, with his wife. P.W.15 is the father-in-law
of P.W.2, who is a resident of Kollam in Kerala State. P.W.14 is the daughter
D-1 and she was then residing, with her husband, in Chennai. Yet another
daughter of D-1 was residing in Madurai, with her husband. Thus, at the house of
D-1, D-1 and D-3 alone were residing and D-2 was working as a Watchman, thereby
helping them.

14. D-1 and D-3 were rich people. They had vast extent of properties,
including jewellery, electronic goods and other household articles. They were
all kept in the house. P.W.15 had presented a Tata Indigo Diesel Car, bearing
Regn.No.KL-02 W 0189 to his son-in-law, namely P.W.2. While leaving for
Australia, P.W.2 had left the said car with his father, D-1, for his use. Thus,
D-1 and D-3 were using the car bearing Regn.No. KL-02 W 0189.

15. The first accused – Anbarasu is a driver by profession. P.W.8 is a
resident of Maravan Kudiyirupu Village. He is a friend of the 1st accused. He
was also known to D-1 and D-3. D-1 had requested P.W.8 to find a driver for
their car. Accordingly, P.W.8 introduced the 1st accused to D-1. D-1 thus
employed the 1st accused as a driver to drive the said car. After sometime, D-1
was not satisfied with the 1st accused, as he, at times, misbehaved with him.
Therefore, D-1 discharged him from service. Thereafter, the 1st accused did not
come to the house of D-1 at all.

16. P.W.1 is the brother-in-law of D-1 and he was then residing at
K.P.Road, Nagercoil. He used to frequently visit the house of D-1 and to help
them. In such a way, he came to know about the first accused, while he was
working as driver under D-1. The 2nd accused is a friend of the first accused.
Thus, P.W.1 had introduction to the second accused as well. On 07.11.2007, at
05.00 PM, P.W.1 had gone to the house of D-1. He met D-1 and his sister D-3.
Till 07.00 PM. he was with them and then he left for his house. Thereafter, till
12.11.2007, he had no occasion to visit the house of D-1. Neither, there was
any phone call from D-1 and D-3.

17. On 12.11.2007, at about 01.45 PM, P.W.1 went to the house of D-1. He
found the outer gate of the compound wall locked. The house was also locked.
The Watchman (D-2) was also missing. When he was standing just by the side of
the entrance gate, he smelt a foul smell from the house. Suspecting some
untoward incident, he immediately rushed to “Nesamony Police Station”
(Respondent Police Station) and informed the Sub-Inspector of Police (P.W.32)
about the same. Immediately, P.W.32, along with P.W.1 and a posse of police,
rushed to the house of D-1. In the meanwhile, he had sent an intimation to the
Village Administrative Officer to rush to the house of D-1. The Village
Administrative Officer (P.W.17) arrived at the house of D-1 at 04.00 p.m. In
the presence of P.W.17 and P.W.1, P.W.32 removed the outer gate and entered into
the premises. They found the main door of the house locked from outside. Then
they went to the backside of the house and using a ladder, they went atop the
terrace of the house. On the open terrace of the house, they found the
spectacles and artificial teeth set of D-1. By force, they opened the door of
the entrance in the upstairs. On such opening, all of them entered into the I-
Floor of the house.

18. To their shock, they found D-1 lying dead in the bed-room, situated on
the left side of the I-Floor. The body was nude. The body was found bloated
and there was scorching foul smell. Obviously the body was highly decomposed.
With the use of a towel, the nose and mouth were found tied, indicating that he
was done to death violently.
19. Then they went to the downstairs of the house and entered into the
bed-room. When they opened the toilet, attached to the said bedroom, they found
the Watchman (D-2) lying dead. His body was also nude. The body was bloated
and it was highly decomposed. Both the legs were found tied with a cloth piece
and hands were also tied with a towel. His neck had been strangulated and a
ligature was found around his neck. P.W.1 identified D-1 and D-2. D-3 was not
found. From the appearance in the house, it could be gathered that the
properties belonging to D-1 and D-3 had been looted. But, P.W.1 was not aware of
the details of the properties looted.

20. Thereafter, at about 04.30 p.m., P.W.32 obtained a complaint from
P.W.1 under EX.P-1. Then he proceeded to the Police Station and at about 05.00
p.m. he registered a case in Crime No.784 of 2007 under Section 302 IPC. Ex.P-
52 is the FIR. Immediately, P.W.32 forwarded EXs.P-1 and P-52 to the
jurisdictional Magistrate. Then, he handed over the Case Diary to the Inspector
of Police – (P.W.40), for investigation.

21. Taking up the case for investigation, P.W.40 proceeded to the place of
occurrence at 05.45 p.m. After inspecting the place of occurrence, P.W.40
prepared an Observation Mahazar – Ex.P-60, in the presence of P.W.9 – Thiru
Mohammed Sahul and another. Then, between 06.45 to 08.45 p.m., he conducted
inquest on the body of D-1. Similarly, between 08.45 p.m. and 10.45 p.m., he
conducted inquest on the body of D-2. During that time, he examined P.W.1 and
few more witnesses and recorded their statements. then he prepared inquest
reports under Exs.P-61 (relating to D-1) and Ex.P-62 (relating to D-2). Then he
recovered the spectacles and the artificial teeth set found on the upstairs,
under Ex.P-12 Mahazar, in the presence of the same witnesses. In the
Downstairs, he recovered three Gold Flake Cigarette buds (half burnt) (M.O.40)
under a Mahazar, in the presence of the same witnesses. Then, he examined
P.W.32 and other witnesses and recorded their statements. Thereafter, he sent
the dead bodies of D-1 and D-2 for postmortem.

22. At the request of PW-40, the Finger Print Expert [PW-25], lifted three
chance finger prints from the door of the room, where the dead body of D-1 was
found. PW-26 photographed the same in a scientific manner and preserved all of
them for the purpose of investigation.

23. A Team of Doctors, namely P.W.24 – Dr.Velmurgan and P.W.25 –
Dr.Rajesh, conducted autopsy on the body of D-1 at 11.30 a.m., on 13.11.2007.
During inquest, they found the following injuries:
“Complete ligature mark, measuring 49 x 12 cm seen over the back
side of neck and over the lower jaw across the mouth. It is 1cm below the lower
end of right ear and 2 cm below the lower end of left ear and 2cm below the
lower end of left ear.
On dissection of neck:- Base of the ligature mark is hard and
parchment like. No extra-vasation of blood seen in the superficial or deep
plaines of neck.”
They forwarded viscera for Pathological Examination, which later on revealed
that there was no poison. Finally, they issued postmortem certificate with the
opinion that the deceased would have died between 4 to 7 days prior to the time
of postmortem. Ex.P-35 is the postmortem certificate and the final opinion is
Ex.P-36. According to the final opinion, the deceased wold appear to have died
of ligature compression around the neck.
(xii). The said Team of Doctors conducted autopsy on the body of D-2 also,
on 13.11.2007 at 10.30 a.m. During postmortem, they found the following
injuries.
“1.Complete ligature mark seen around the neck and lower jaw
measuring 45 x 10cm. It is 2cm below the lower end of right ear and 3-1/2cm
below the lower end of left ear. In the front, it was extending from the lower
border of the lower lip lip up to the supra sternal notch.
2.Ligature mark seen around both wrist and around the waist.
On dissection of neck:- Base of the ligature mark is hard and
parchment like.”

They forwarded viscera for Pathological Examination, which later on revealed
that there was no poison. Thereafter, they issued Ex.P-32 – Postmortem
Certificate and Ex.P-33 – Final Opinion. According to Ex.P-33, the deceased
(D-2) would appear to have died of ligature strangulation, as the postmortem
findings were consistent with that of ligature strangulation.

24. The clothe materials, which were used to cover the bodies of D-1 and
D-2, were handed over by the Doctors to the Constable, which were later on
handed to P.W.40, which were recovered under Form-95. (M.Os.61 to 63). P.W.40,
thereafter, obtained details of the cell phone calls from and out of the cell
phone used by D-1. He made a request to the service provider, namely Airtel, to
provide the details. Till 15.11.2007, no break-through could be made in the
case.

25. In the meanwhile, P.W.1 had informed the son of D-1 – P.W.2 and the
daughter – P.W.14 and another daughter, over phone. P.W.14 rushed to the place
of occurrence on 13.11.2007 itself. The other daughter also had come on
13.11.2007. P.W.2 arrived in Nagercoil from Australia only on 15.11.2011. On
arriving at Nagercoil, along with P.W.1, P.W.14 and another daughter of D-1,
P.W.2 entered into the house and verified the articles found missing from his
house. He took out a list of the missing articles as under:
1.KL-02 W 189 Number Plate – 2 Nos..
2.Designed Silver Plate,
weighing about 265 gm. – 1 No.
3.Yashika Camera – 1 No.
4.Yashika Flash – 1 No.
5.Sanyo D.V.D.Player – 1 No.
6.Zernego CD 1005 S.Dish T.V. – 1 No.
7.Naswa Tape Recorder – 1 No.
8.Nokia Cell Model 1100 with Hutch SIM Card – 1 No.
9.Bluish Black Leather Suitcase – 1 No.
10.Wrist watch with Steel Chain – 1 No.
11.Nokia Cell Model 1100 – 1 No.
12.Nokia Battery – 1 No.
13.Canon Camera – 1 No.
14.Nokia Cell Model 6600 – 1 No.
15.TATA Indigo Car – Navy Blue Colour
bearing Regn.No.TN-01 R 3520, with key.
16.Arba Wardat Scent Bottle – 1 No.
17.Room Fresher Natural Spray -1 No.
18.Concord Air Fresh Spray – 1 No.
19.200 Year World Time Calculator – 1 No.
20.Sony Cassettes – 3 Nos.
21.SANYO DVD Remote – 1 No.
22.Dish T.V. Remote – 1 No.
23.After Soft Lavender Spray – 1 No.
24.Concentrated Perfume Bottle – 1 No.
25.Fancy Ring – weighing 3.100 mg. – 1 No.
26.Disco Chain – weighing 24.060 grams – 1 No.
27.Crystal Clock, made in Taiwan – 1 No.
28.Clock, made in China – 1 No.
29.Rose Colour Rubber Chappal – 1 No.
30.A piece of burnt Blue Colour Cloth
31.A piece of burnt Greenish White colour cloth
Then he proceeded to the Police Station in the afternoon and gave a list of
stolen articles to P.W.40 (marked as Ex.P-2 – though not admissible in evidence,
in view of the bar contained in Section 162 of the Evidence Act.) P.W.2 and the
other family members found as many as 31 articles missing from their house.
According to PW-2, the value of the properties stolen away was around
Rs.7,00,000/-. PW-40 made all out efforts to know the whereabouts of D-3, but he
could not succeed.
26. While so, on 10.11.2007, at 07.00 AM, PW-6, a driver by profession,
saw the dead body of a woman in a charred condition at Oangoor Village in
Vilupuram District and informed the same to the local Village Administrative
Officer PW-5. PW-5, visited the place and found a burnt body of a woman at 05.30
PM, on 10.11.2007, near the Village Rehabilitation Centre. When he visited the
scene of occurrence, PW-5 found that the entire right leg of the body was burnt
and the left leg was found amputated. In the left leg, the belt of the chappal
alone was found in a burnt condition. A blue colour jacket was found on the
body, besides a rolled gold chain on the neck. By the side of the body, an empty
Plastic Can of two litres capacity was found with the odour of petrol. The
identity of the body was not known. Immediately, thereafter, he proceeded to the
“Olakkoor Police Station” and preferred a complaint at 06.30 PM on the same day
[EX-P4].

27. On receiving the said complaint, the Sub-Inspector of Police PW-30,
who was in-charge of Olakkoor Police Station, registered a case in Crime No.355
of 2007, under Section 302 of the Indian Penal Code. EX-P-44 is the First
Information Report. He forwarded the complaint and the First Information Report
to the jurisdictional Magistrate. Then, he handed over the Case Diary to the
Inspector of Police, Olakkoor Police Station, for investigation. PW-31, the then
Inspector of Police, took up the case for investigation and proceeded to the
place of occurrence at 05.00 AM, on 11.11.2007. On inspecting the place of
occurrence, in the presence of PW-7 and another witness, he prepared an
Observation Mahazar – EX-P-7 and a Rough Sketch – EX-P-45. He recovered the
Bloodstained Earth, Sample Earth, Plastic Can and a Chappal from the place of
occurrence under Mahazar. MO-36 is the Chappal strap. Then, he conducted inquest
on the body of the deceased and prepared EX-P-46 – Inquest Report. He had made
arrangements for photographing the dead body from various angles through PW-22.
Then, he examined PW-5 and few more witnesses and recorded their statements.
Then, he made a request to the doctor to conduct autopsy on the body of the
deceased on the spot itself. Since the body could not be removed, PW-27, Doctor,
B.T.Valavan, attached to the Government Hospital at Dindivanam, conducted
autopsy on the body of the deceased at 11.30 AM on 11.11.2007 at the place of
occurrence. From the appearance of the body, he estimated the age of the
deceased as somewhere between 60 and 65 years. During autopsy, he found the
following injuries.
“Body was seen in a completely burnt condition. Skin and soft
tissues completely burnt except in the skull and upper limbs where the skin is
only lost. So no other external injuries could be made out. Both the upperlimbs
of flexed at the elbow. Tongue bitten between the teeth. Dental wiring seen on
the left side of the upper jaw. Skull bone was intact with menninges. Brain
congested hyoid bone preserved. No soot particles seen in the trachea while
dissecting the hyoid bone. The thoracic regions is completely burnt having the
ribs and vertebra. The heart and lungs could not be identified distinctly and
seen as a single chassed mass. In the abdomen the liver is seen in the right
hypochondrium and in a chassed state. All the other organs of the abdomen could
not be made out and a soft, fraible chassed mass is seen without any anatomical
structure. The pelvic region shows a chassed mass in the pelvic cavity. The
right lower limbs completely burnt. The left lower limbs is burnt in the thigh
and the left leg is seen separately from the rest of the body.”

28. EX-P-41 is the Post-mortem Certificate. He had preserved the skull for
the purpose of superimposition test, since the same was intact. He had also
preserved the hyoid bone for examination. He sent a piece of liver for chemical
examination. The report disclosed that there was no poison detected in the body.
The report regarding the hyoid bone revealed that there was no fracture. Under
EX-P-42, he offered his final opinion, opining that the deceased would appear to
have died of burn injuries and the death would have occurred 24 to 48 hours
prior to the commencement of the post-mortem. The body was buried in the
presence of the Village Administrative Officer. PW-31 examined PW-5 and few more
witnesses and recorded their statements.

29. On 14.11.2007, PW-31 got a message, in connection with the case in
Crime No.784 of 2007, on the file of the Nesamani Police Station, Kanyakumari
District, that a woman was found missing. He contacted PW-25 and informed him
about the case in Crime No.355 of 2007, on the file of the Olakkur Police
Station and also informed him that the clothe and the other remains were kept in
the Police Station. PW-31, thereafter, proceeded to the Nesamani Police Station
and with the assistance of PW-40, he examined PW-1, PW-2, PW-14 and another
daughter of the deceased. The articles, which were recovered from the deceased,
were identified by PW-2, PW-14 and another daughter of the deceased. Then, he
recovered a photograph of the deceased from them under Form 95 for the purpose
of examination by superimposition. Then, he made a request to the Court to
forward PW-14 for DNA Test to identify the body of the deceased. He also made a
request to forward the skull for the purpose of examination by superimposition.

30. Now, let us go back to the investigation in Crime No.784 of 2007, on
the file of the Nesamani Police Station. PW-40 continued the investigation. On
16.11.2007, PW-40 got the details of the Cellphone instrument used by the
deceased. He came to know that the said Cellphone instrument was then used with
a Sim Card No.98406 75633 and the name of the Simcard Holder was Anbarasu, [A-
1], residing at No.5, Thilakavathy Street, Saligramam, Chennai. Therefore,
suspecting the involvement of Anbarasu, the first accused herein, PW-40 went in
search of him. On 19.11.2007, he had requested PW-17 and one Revenue Inspector,
by name Raja, to accompany him. At 12.15 PM, near the shop of one Charles at
Vellamadam, PW-40 arrested the first accused. On such arrest, he gave a
voluntary confession statement and the same was reduced into writing by PW-40 in
the presence of the said witnesses. EX-P63 is the disclosure statement made by
him. He was also in possession of a Nokia Cellphone Model No.1100 along with
Airtel Sim Card and a battery – MO-11, MO-14 and MO-12 respectively. PW-40
recovered MO-11, MO-14 and MO-12 under EX-P-19 Mahazar. Then, the first accused
took PW-40 and the other witnesses to a place near Aaralvaimozhi Railway
Junction and identified the Blue Colour Tata Indigo Car, which was hidden in a
bush. At that time, the said car bore the Registration No.TN-01-R-3520. PW-40
seized the said car under a Mahazar EX-P-21. MO-15 is the car, [later on, it
came to light that the said car is the one, which was stolen away from the house
of D-1, bearing Registration No.KL-02-W-189]. From the dickey of the car, the
first accused produced a number plate bearing Registration No.KL-02-W-189, [two
numbers of plates], MO-1 series are the number plates, a silver plate – MO-2,
Yashica Camera – MO-3, Flash Yashica – MO-4, Sanya DVD Player – MO-5, Naiwa
Tape Recorder – MO-7, a Cellphone – MO-8 with Simcard, leather suitcase – MO-9,
Tissot Steel Watch with chain – MO-10 and the Driving License of the first
accused [not marked]. PW-40 recovered the above Material Objects under a Mahazar
– EX-P22. Thereafter, the first accused took PW-40 and the other witnesses to
Kanyakumari Railway Station, where the second accused was arrested at 03.15 PM.

31. On such arrest, the second accused gave a voluntary confession
statement, in which he had made a disclosure statement under EX-P-64. From his
possession, the second accused produced a Tissot Watch with Steel Chain – MO-10,
Camera – MO-13, Nokia Cellphone Mobile No.6600 – MO-14, Passport of the second
accused [not marked], a train ticket showing the travel between Kanyakumari and
Madurai on 19.11.2007 and a Yellow colour Plastic Bag – MO-49. Then, PW-40
returned to the Police Station with the arrestees and the Material Objects
recovered. PW-1 and PW-2 identified the said Material Objects in the Police
Station as the stolen properties. Then, he forwarded both the accused to the
Court for judicial remand.

32. On 21.11.2007, he made a request to the Court for police custody of
both the accused. On 23.11.2007, both the accused were handed over to police
custody by the learned Judicial Magistrate No.II, Nagercoil, for five days.
Again, PW-40, got the assistance of PW-17 and Mr.Raja for the purpose of
investigation. On 25.11.2007, both the accused took PW-4- to a Petrol bunk at
Vellamadam and identified PW-16. PW-40 examined PW-16 and recovered a receipt
[EX-P18]. Thereafter, they proceeded to Madurai, where PW-40 examined PW-10 and
PW-11 and recorded their statements. The second accused took out two watches
[MO-10] from a place, where they had been concealed. The same were recovered in
the presence of the same witnesses under a Mahazar. Then, he recovered the
mixture of diesel and petrol kept in two Cans under a Mahazar. PW-11, then,
identified PW-12 to whom some jewels had been pledged.

33. Accordingly, from PW-12, he recovered a pair of ear studs [MO-33] in
the presence of the very same witnesses under a Mahazar – EX-P27. Then, taking
the accused, PW-40, along with PW-17 and another witness, proceeded to
Thindivanam and made a stay. Then, taking the help of PW-13, PW-40 went to the
place, where the dead body of D-3 was earlier found. On inspecting the said
place, PW-40 prepared an Observation Mahazar. Then, he recovered two burnt wood
pieces, [not marked]. Immediately, thereafter, the first accused took up a bunch
of keys – MO-50 from the place near a bridge from concealment. PW-40 recovered
the same [EX-P28] in the presence of the witnesses. Then, he examined few more
witnesses on the spot. Then, PW-40 took the accused and the witnesses to
Chennai. At 01.30 PM, on 26.11.2007, the first accused identified one
Tmt.N.Zuhaida Beevi – PW-18, at her clinic in Chennai.

34. On interrogation, PW-18 produced two gold rings. PW-40 recovered the
same under a Mahazar – EX-P9. MO-51 is the Motorala Cellphone recovered and MO-
52 series are the two gold rings recovered from her. At 04.30 PM, PW-18 took the
police and the accused to her house and produced a Clock with a Pen Stand – MO-
53, A.C.Adopter model charger-1 – MO-54, Gas Light – MO-55, Gold colour Tie pin
with cover – MO-56 and few more objects. Then, he examined PW-18 and her husband
and recorded their statements. Then, he examined PW-20 and recorded his
statement. He examined PW-21 – Anantharam and recorded his statement.
Thereafter, he examined the Aaditya Hotel Manager – PW-3 and recorded his
statement. He examined the Manager of Airtel Company [PW-39] and recorded his
statement. On 27.11.2007, PW-4- returned to Nagercoil and produced both the
accused before the learned Judicial Magistrate, for judicial remand.

35. On his request, the learned Judicial Magistrate – PW-28 recorded the
statements of PW-18 and PW-10 under Section 164 of the Code of Criminal
Procedure. He examined few more witnesses, collected medical records, examined
the doctors and made necessary entries in the Case Diary. Thereafter, on the
orders of the Superintendent of Police, he handed over the investigation to PW-
41. In the meanwhile, he had collected the toll gate receipt – EX-P-68 and
another receipt EX-P-69.

36. Again, let us now revert back to the further investigation done by PW-
31 in connection with the case in Crime No.355 of 2007, on the file of the
Olakkoor Police Station. On 07.12.2007, PW-31 made a formal arrest of these two
accused at Nagercoil, in connection with the said case. On 10.12.2007, on his
request, the learned Judicial Magistrate, Thindivanam, issued a PT warrant for
the production of both the accused before him on 13.12.2007. Accordingly, they
were produced. At that time, PW-31 made a request for judicial custody of both
the accused. Accordingly, on 14.12.2007, they were handed over to him. On
15.12.2007 in the Police Station, in the presence of PW-13, the Village
Administrative Officer and another witness, the first accused gave a voluntary
confession statement, which was reduced into writing by PW-31. Similarly, the
second accused gave a voluntary confession statement and the same was also
reduced into writing. In his confession, the first accused had stated that he
would identify the place, where the body of D-3 was burnt by the accused. In the
confession, the accused No.2 also made such a disclosure statement. Accordingly,
both the accused took PW-31 and the witnesses and identified the place. These
two disclosure statements have been admitted in evidence as EX-P-48 and EX-P-49
[since there was no discovery of any relevant fact, EX-P48 and EX-P-49 are not
admissible, but the Trial Court has erroneously admitted the same]. Then, on
16.12.2007, he produced both the accused before the learned Judicial Magistrate,
Thindivanam, for remand.

37. On 25.02.2008, he produced PW-14 for DNA Test. Accordingly, DNA Test
was conducted by PW-37, during which she compared the DNA extracted from a piece
of skull of D-3 and from the blood extracted from PW-14. On such comparison, she
found that PW-14 is the biological daughter of the deceased. Thus, PW-37
confirmed that the deceased was D-3 Katheeja Beevi. EX-P-57 and EX-P-58 are the
reports submitted by her. Similarly, PW-38 conducted superimposition examination
with the photograph [MO-68] of D-3 [but the photograph has not been identified
by anybody knowing D-3] and the skull of the body found near Olakkoor Village.
On such examination, he found that the skull was that of the person found in the
photograph. EX-P-59 is the report and MO-68 is the photograph. This opinion also
confirmed that the deceased was D-3 – Katheeja Beevi. Continuing the
investigation, PW-31 examined few more witnesses and finally, as per the orders
of the Higher Police, he handed over the investigation to the Inspector of
Police, Nesamani Nagar Police Station.

38. On 05.03.2008, PW-41 took up the case in Crime No.784 of 2007 of
Nesamani Nagar Police Station and Crime No.155 of 2007 of Olakkoor Police
Station, clubbed the same and proceeded with the investigation. To this effect,
he submitted a report to the Court under EX-P67. He examined the Police
Officials, Doctors and few more witnesses and recorded their statements.
Finally, on 30.05.2008, he laid charge sheet against the accused for the
offences under Sections 120(B), 450, 302, 379, 201, 392 and 472 of the Indian
Penal Code. Since both the cases were clubbed together, final report was
submitted in Nesamani Nagar Police Station in Crime No.784 of 2007. The records
relating to the case in Crime No.155 of 2007 lying with the learned Judicial
Magistrate No.II, Thindivanam were all transferred to the file of the learned
Judicial Magistrate No.II, Nagercoil.

39. On the said Police Report, the learned Judicial Magistrate No.II,
Nagercoil, took cognizance and committed the case to the Court of Sessions,
Kanyakumari Division at Nagercoil, for trial. The learned Sessions Judge, on
considering the materials placed before him, framed as many as twelve charges,
as narrated in Paragraph No.1 of this Judgment. Since the accused pleaded
innocence, they were put on trial. As we have already pointed out, on the side
of the prosecution, as many as 41 witnesses were examined, 74 documents were
exhibited and 65 materials objects were marked. Apart from the above, three
documents were exhibited on the side of the accused, i.e., postal receipts dated
26.03.2008 and postal acknowledgment. These documents have been marked through
PW-18 to show that these letters sent to PW-18 to her address were all returned
as “no such addressee”.

40. When the accused were questioned under Section 313 of the Code of
Criminal Procedure, in respect of the incriminating materials available against
them, they denied the same as false. They pleaded that they would examine
witnesses on their side. When the case stood adjourned for examination of the
defence witnesses, as we have already noted, the first accused absconded, and
therefore, the case as against the first accused was spilt up. The case as
against the second accused was proceeded with and he was convicted. Thereafter,
when the first accused appeared in the split up case in S.C.No.94 of 2009, he
examined the lone defence witness as “DW-1”. He was the then Senior Manager in
Tata Motors Company, Chennai. In his evidence, he has stated that he is a B.E
Graduate in Mechanical Engineering. He has further stated that in a diesel car,
if petrol is filled, the car cannot be driven.

41. Having considered the evidences in both the cases, the Trial Court
found the accused guilty under all the charges, except the charges for offences
under Sections 379 and 472 of the Indian Penal Code. As we have already stated,
since the learned Senior Counsel appearing on behalf of both the accused have
made a submission before this Court requesting to consider both the cases
together for better appreciation of evidences together, because they are common
and to deliver a Common Judgment, we have proposed to dispose of these Criminal
Appeals, Referred Trial and the Criminal Revision Cases by means of this Common
Judgment.

42. Admittedly, this is a case where the prosecution mainly relies only on
the circumstantial evidences. It is the well recognized rule of prudence in
criminal jurisprudence that in such cases, the prosecution is bound to prove the
circumstances projected by it beyond any reasonable doubt and the circumstances,
so proved, should form a complete chain pointing unerringly to the guilt of the
accused and that there is no other hypothesis, which is consistent with the
innocence of the accused. Keeping this principle in mind, let us now go into the
circumstances projected, which are as follows:-
(i). D-1 and D-2 were residing at the house known as “Vasantha Vigar at
Pattakasaliyamvilai, Nagercoil, and D-2 was working under them in the said house
as a Watchman.
(ii). All the three deceased were found lastly alive at the house of D-1
on 07.11.2007 between 05.00 PM and 07.00 PM by PW-1.
(iii). Between 07.11.2007 and 12.11.2007, no one had seen D-1 to D-3 alive
at the house.
(iv). On 12.11.2007, at 01.45 PM, with the help of the police and the
local Village Administrative Officer, when the house was forcibly opened, it was
found that D-1 and D-2 were dead and the bodies were in a highly decomposed
condition. According to the medical evidence, D-1 and D-2 died of homicidal
violence. D-3 was found missing.
(v). Valuable jewels and other articles, including a car bearing
Registration No.KL-02-W-189 were found missing from the house of D-1. Thus,
robbery and murders of D-1 and D-2 had taken place in one and the very same
occurrence.
(vi). These two accused were found in possession of the car on 09.11.2007
at 03.29 AM, at the Petrol bunk where PW-16 was then working, which is situated
on the Nagercoil and Madurai National Highway at Vellamadam Village. A woman
[according to the case of the prosecution – D-3], was also found in the car. In
the petrol bunk, though it was a diesel car, by mistake, 19.19 litres of petrol
was filled.
(vii). On 09.11.2007, at 09.00 AM, the car developed a snag at Madurai,
and therefore, it was brought to the workshop of PW-10. PW-10 and PW-11 had seen
the car bearing Registration No.KL-02-W-189 in the possession of the accused at
that time. The mixture of petrol and diesel was discharged from the car and
filled in two Plastic Cans of 5 litres capacity and a small Can of 2 litres
capacity. Two litres capacity Can was taken in the car and the five litres
capacity Cans with the mixture of petrol and diesel were left in the workshop.
(viii). The accused removed a pair of ear studs from D-3 and handed over
to PW-11, who in turn pledged the same to PW-12 on 09.11.2007 between 10.00 to
10.30 AM.
(ix). D-3 was carried in the samd car towards Chennai. At a place known as
“Ongoor Village” near north bank of the river, the charred dead body of D-3 was
found at 07.00 AM on 10.11.2007 by PW-6. PW-27, who conducted autopsy on the
body of the deceased, has opined that the death was due to burn injuries, and
thus, the death of D-3 is by means of homicidal violence.
(x). The dead body has been identified to be that of D-3 by the DNA Test
as well as Superimposition Test.
(xi). The stolen car was found at Athoor tollgate on its way to Chennai,
driven by the first accused on 09.11.2007 at 06.15 PM, and thus, the deceased
would have been murdered on 09.11.2007 before 06.15 PM.
(xii). The accused were moving together from the date of occurrence till
they were arrested, disposing of the stolen properties at various places.
(xiii). The accused were arrested and on such arrest, they gave voluntary
disclosure statements separately. Out of the disclosure statements made by the
accused, the stolen properties, including the car, were recovered.
(xiv). The chance finger print lifted from the door of the room where the
dead body of D-1 was found tallied with the finger print of the first accused.
(xv). The Cellphone used by D-1 was found in the possession of the first
accused, who used it by changing the sim card.
(xvi). The false plea of the first accused denying his previous employment
under D-1 and totally disowning his acquaintance with PW-1 and PW-14.

43. The learned Public Prosecutor would submit that from the evidences,
both oral and documentary, the prosecution has proved all the above said
circumstances and the said circumstances would go to prove the guilt of the
accused and thus, according to him, the Lower Court was right in finding them
guilty. In respect of the quantum of punishment, the argument advanced by the
learned Public Prosecutor would be dealt with at the later part of this
Judgment, and therefore, no mention of the same is made at this stage.

44. The learned Senior Counsel appearing for the accused would submit
that none of the above stated circumstances has been proved beyond reasonable
doubts by the prosecution. They, in nutshell, have made the following
submissions:-
(i). Absolutely, there is no evidence to sustain the conviction under
Section 120(B) of the Indian Penal Code.
(ii). There is no satisfactory proof that the properties exhibited are the
stolen properties from the house of D-1.
(iii). The finger print evidence does not connect the first accused at
all, and thus, the finger print expert’s evidence is of no use.
(iv). The evidences of PW-10, PW-11, PW-12 and PW-16 should be rejected,
because, there was no Test Identification Parade held.
(v). The identification of these accused made for the first time by these
witnesses in the Court cannot be relied on.
(vi). The case of the prosecution that in the diesel car, petrol was
filled by PW-16 and the same was driven, up to Madurai, thereby covering a
distance of about 150 Kilometres cannot be believed. According to the learned
Senior Counsel, a diesel car with petrol cannot be moved even to a short
distance as spoken to by DW-1.
(vii). The dead body, found at Onkoor Village, in connection with the case
in Crime No.355 of 2007, on the file of the Olakkur Police Station, has not been
identified to be that of D-3. The Superimposition Test Examination does not go
to prove that the deceased was D-3. Similarly, the DNA Test also does not go to
prove the identity of the dead body.
(viii). Even assuming that the body found in connection with the Crime
No.355 of 2007 on the file of the Olakkur Police Station was that of D-3, even
then, it has not been proved that the death was homicidal. The doctor, who
conducted autopsy on the body of the deceased, has not found out the cause of
death.
(ix). The arrest, confession and the consequential recoveries of the
articles cannot be believed. The properties, allegedly recovered from the
accused, have not been identified as stolen properties, and thus, the
presumption under Section 114(a) of the Indian Evidence Act, 1872, is not
available for the prosecution.
(x). The accused have not taken any false plea, as it is projected by the
learned Public Prosecutor. Had it been the conspiracy to commit murder of all
the three deceased, there would have been no need or occasion for taking D-3
alone to such a long distance and then to kill her at Onkoor Village. In other
words, had it been the intention, they would have killed her when they killed
D1- and D-2 at Nagercoil itself. Thus, the story put forwarded by the
prosecution creates a lot of doubt. In any event, the prosecution has not proved
the case beyond reasonable doubts, and therefore, the Lower Court was not right
in holding them guilty.

45. In respect of their respective points, the learned Public Prosecutor
as well as the learned Senior Counsel for the accused have advanced elaborate
arguments, which we will now analyze one by one.
Conspiracy:-
Charge No.1 has been framed under Section 120(B) of the Indian Penal Code
as against both the accused. According to the said charge, on 02.11.2007, at
Vellamadam, Karaiyankuli, at the house of one Charles, these two accused
conspired to commit robbery at the house of the deceased on the day of Diwali.
Of course, as required under Section 212 of the Code of Criminal Procedure, the
Lower Court has framed the said charge bringing to the notice of the accused,
the place, time and the other details regarding the charge. But, absolutely,
there is no evidence to prove the said charge. We are conscious of the reality
that the conspiracy is mostly hatched in secrecy, and therefore, at times, it
needs to be proved only by circumstantial evidence.

46. The learned Public Prosecutor would submit that these two accused had
pre-determination to commit robbery, and thus, there was a pre-meeting of mind,
which itself would go to prove conspiracy. In our considered view, conspiracy is
something more than a mere pre-meditation to commit a crime. For example, if two
accused had pre-meditation to commit a crime and there had been a pre-meeting of
mind and later on, if the pre-mediated offence is committed by them, at the
most, it would make out a constructive liability under Section 34 of the Indian
Penal Code. Mere pre-meditation or for that matter, mere pre-meeting of mind
alne will not constitute a conspiracy. As defined in Section 120(A) of the
Indian Penal Code, essentially, conspiracy requires an agreement between the
accused to do an illegal act or an act which is not illegal itself but is done
by illegal manner. But, in this case, though there are evidences to the effect
that these two accused were moving together after the murders of D-1 and D-2,
absolutely, there is no evidence that on 02.11.2007, at the house of one
Charles, these two accused conspired to commit the robbery at the house of D-1
as stated in the charge. There is no iota of evidence let in to even prima facie
show that these accused were at least found together, prior to 07.07.2007, so as
to infer an agreement to commit robbery. After the murders of D-1 and D-2 and
robbery from the house of D-1, these accused were found moving together and D-3
was murdered subsequently. From this, it is possible to conclude that they had
reached an agreement to abduct D-3 and to kill her. Thus, conspiracy, obviously,
had come into being at the house of D-1 to abduct and kill D-3. But, we are
unable to convict the accused for the said offence, as there is no appropriate
charge for the same. As we have pointed out, the charge under Section 120(B) of
the Indian Penal Code framed against the accused relates only to the alleged
conspiracy hatched on 02.11.2007 at the house of one Charles at Vellamadam
Village, for which there is no evidence at all. Though, initially, the learned
Public Prosecutor made an attempt to persuade us that there are materials to
prove conspiracy, realizing the weakness of the prosecution case on this aspect,
later on, he has fairly submitted that there is no evidence to prove the charge
for conspiracy. For these reasons, we have no hesitation to hold that the
conviction of these two accused under Section 120(B) of the Indian Penal Code is
not sustainable, and therefore, the same is liable to be set aside.

47. Now, let us analyze the evidences relating to the other charges:-
Circumstances No.I to III.
PW-1, PW-2 and PW-14 have clearly spoken to about the fact that D-1 and D-
3 alone were residing at the house of D-1, wherein D-2 was working as a
Watchman. Further, according to the evidence of PW-1, all the three deceased
were found, lastly, alive at the house of D-1 on 07.11.2007 between 05.00 PM and
07.00 PM by PW-1, at the house of D-1. Thereafter, till 12.11.2007, there was no
word from any of the deceased. These three circumstances have been clearly
spoken to by PW-1. They have not been very seriously challenged by the defence,
except making an allegation that the first accused was the perpetrator of the
crime. Thus, from the evidences of PW-1, PW-2 and PW-14, we hold that the
prosecution has proved that all the three deceased were found alive till 07.00
PM, on 07.11.2007, and thereafter, till 12.11.2007, no one had seen them alive
at Pattakasaliyamvilai.

Circumstance No.IV.
48. On 12.11.2007 at 01.45 PM, according PW-1, he had gone to see D-1.
Since the house as well as the outer gate were found locked and since there was
a bad odour emanating from the house, he developed suspicion and so, he
informed the police. The police arrived at the scene of occurrence and in the
presence of the local Village Administrative Officer, the house was forcibly
opened and then it was found that D-1 and D-2 were dead. The dead bodies were in
a highly decomposed condition. PW-23 and PW-24, doctors, who conducted autopsy
on the bodies of D-1 and D-2, have clearly opined that the deaths of the
deceased were due to homicidal violence. Thus, the prosecution has established
that sometime between 07.00 PM on 07.11.2007 and 01.45 PM on 12.11.2007, D-1 and
D-2 were done to death by the assailants. It has been also established that the
death of D-1 and D-2 is homicidal, and thus, the persons responsible for their
death are the murderers.

Circumstance No.V.
49. On 12.11.2007 itself, PW-1 found that the car bearing Registration
No.KL-02-W-189 was missing and D-3 was also missing. PW-1, PW-2, PW-14 and PW-15
have spoken to about the fact that the said car was used by D-1 and D-3. PW-15
is the father-in-law of PW-2. The said car stood in his name. It was presented
by him to PW-2 and PW-2 in turn had left it for the use of D-1 and D-3, because,
he had left for Australia. We do not find any reason to reject the evidences of
PW-1, PW-2, PW-14 and PW-15 in this regard. We hold that the car bearing
Registration No.KL-02-W-189 was used by D-1 and D-3 and the same was found
missing from the house of D-1 from 12.11.2007, besides that, D-3 was also found
missing. From the evidences of PW-2 and PW-14, it has been established that the
other valuable properties had been stolen away. Thus, the prosecution has
clearly proved that the murders of D-1 and D-2 and robbery had taken place in
one and the same occurrence.

Circumstance No.VI.
50. According to the case of the prosecution, the car bearing Registration
No.KL-02-W-189 was found by PW-16 on 09.11.2007 early morning at 03.29 AM. PW-16
was working in the Petrol Bunk at Vellamadam Village. There is no dispute that
Vellamadam is situated on the National Highway between Nagercoil and Madurai.
The car was taken to the said petrol bunk by the accused 1 and 2 for filling
petrol. The first accused was found in the driver’s seat and the second accused
was found in the back seat. 19.19 litres of petrol was filled in the car. A bill
was prepared for the same and the same was later recovered by the police. The
same has been identified by PW-16, as EX-P18. Thus, according to the case of the
prosecution, the car in question was in the possession of the accused at 03.29
AM, on 09.07.2011.
51. It is the further contention of the learned Public Prosecutor that the
woman, who was sitting in the back seat of the car, as spoken to by PW-16, was
none else than D-3. He would further contend that the prosecution has
established that these two accused were moving along with the car soon after the
commission of the theft, and therefore, Section 114(a) of the Act, will come to
the help of the prosecution.

52. But, the contention of the learned Senior Counsel for the accused is
that in the absence of Test Identification Parade, the evidence of PW-16 cannot
be believed. In our considered opinion, as has been held by the Hon’ble Supreme
Court on several occasions, Test Identification Parade is not the only test to
test the veracity of the identification made by a witness in Court. The
identification made in the Court alone is substantive and the identification of
the accused by the witnesses during Test Identification Parade is only a
corroborative piece of evidence. There are cases, where, even in the absence of
Test Identification Parade, the Courts have shown inclination to act upon such
identification made for the first time in Court. There is no strait-jacket
formula that the Identification made for the first time in the Court, without
there had been a Test Identification Parade, should not be acted upon. It all
depends upon the facts and circumstances of each case. In a given case, if the
Identification made for the first time in the Court by the witnesses is either
not disputed or the said identification inspires the confidence of the Court, it
will not be unsafe to act upon such identification made for the first time in
Court. In this regard, we may usefully refer to the Judgment of the Hon’ble
Supreme Court in Danayadav vs. State of Bihar reported in 2002 (7) SCC 295,
wherein in Paragraph No.38, the Hon’ble Supreme Court has held as follows:-
“Failure to hold Test Identification Parade does not make the evidence of
identification in Court inadmissible, rather the same is very much admissible in
law, but ordinarily, identification of an accused by a witness for the first
time in Court should not form the basis of conviction, the same being from its
very nature inherently of a wear character, unless it is corroborated by his
previous identification in the test Identification Parade or any other evidence.
The previous identification in the Test Identification Parade is a check valve
to the evidence of identification in court of an accused by a witness and the
same is rule of prudence and not law. In exceptional circumstances only, as
discussed above, evidence of identification for the first time in Court, without
the same being corroborated by previous identification in the test
identification parade or any other evidence can form the basis of conviction.”

53. In the instant case, though it is true that there was no Test
Identification Parade held, in our considered opinion, on that score, the
identification made by PW-16 of these two accused for the first time in Court
cannot be rejected, as it fully inspires the confidence of the Court. The reason
for such conclusion is that it is not the case where the witness had a fraction
of a second to have a glimpse of the face of the accused. It is the case, where
both the accused were in the petrol bunk for quite sometime and they talked to
PW-16 and thus, the physical features of these accused [image] would have got
imprinted in the mind of the witness. Therefore, there would have been no
difficulty for him to correctly identify the accused in Court. Though the
prosecution would have done better by conducting a Test Identification Parade
through a learned Judicial Magistrate, for that lapse and on that score, we are
not inclined to reject the evidence of PW-16. We hold that the evidence of PW-16
has clearly established that the car bearing Registration No.KL-02-W-189 was
found in the possession of the accused Nos.1 and 2 as soon as the commission of
the theft.

54. Apart from the oral evidence of PW-16, EX-P18, the bill for filling
petrol, will also go to prove the same. But, the learned Senior Counsel for the
accused would submit that in EX-P18, the number of the car in question is
mentioned as “KL-02-W-19”, whereas the actual number of the car is “KL-02-W-
189″. Thus, according to the learned Senior Counsel, EX-P18 completely falsifies
the case of the prosecution. But, a cursory perusal of the evidence of PW-16
would go to show that he has clearly stated that while preparing the bill, by
mistake, the number of the car was mentioned as “KL-02-W-19”, instead of “KL-02-
W-189″. We do not find any reason to reject the said explanation offered by PW-
16. Had it been true that a false receipt was created for the purpose of the
case, they would have created the said document mentioning the correct number of
the car. But, it has not happened. This would only go to strengthen the
explanation offered by PW-16. Thus, EX-P18 also corroborates the evidence of PW-
16. Thus, the prosecution has proved the circumstance No.VI beyond any
reasonable doubt. Further, from the evidence of PW-16, coupled with the other
evidences, discussed above, the prosecution has proved that D1 & D2 were done to
death sometime before 03.29 AM on 09.11.2007.

Circumstance Nos.VII and VIII.
55. Thereafter, according to PW-10 and PW-11, the car was brought to their
workshop, on 09.11.2007 at 09.00 AM, at Maduari, as the same could not be driven
further. At that time, they diagnosed that since petrol had been filled in the
diesel car, it had developed a snag. According to them, they drained the petrol
and diesel mixture from the tank of the car in three Cans, out of which, two
Cans were of five litres capacity and one was of two litres capacity. These two
witnesses have identified the accused Nos.1 and 2 before the Court for the first
time, as there had been no Test Identification Parade. They have categorically
stated that the car in question, viz., “KL-02-W-189” was found in the possession
of these two accused on 09.11.2007 at 09.00 AM, at Madurai.

56. It is the contention of the learned Senior Counsel for the accused
that the evidence of these two witnesses cannot be acted upon for want of prior
Test Identification Parade. In other words, according to the learned Senior
Counsel, the identification of these two accused made for the first time in the
Court by PW-10 and PW-11 cannot be given weightage of. In our considered
opinion, the said argument of the learned Senior Counsel deserves only to be
rejected. As we have already stated, it is not as though the witnesses had a
fraction of a second to have a glimpse of the faces of the accused so that they
would not have noticed the physical features of these accused. Here also, these
two accused were in the company of PW-10 and PW-11 for a quite long time. Until
the mixture of petrol was drained, these two accused were in the company of PW-
10 and PW-11. Thereafter, until the ear studs of D-3 were mortgaged and diesel
was filled in the car, these two accused were in the company of PW-1- and PW-11,
as spoken to by them. Thus, it is crystal clear that there was more than
sufficient time for these two witnesses to have noticed the physical features of
these two accused and to have an imprint of their figures in their minds.
Applying the well settled position of law, [vide Danayadav’s case] that
expecting evidence of Test Identification Parade is only a rule of prudence and
not rule of law, and in view of the factual scenario, which we have narrated
above, we are of the considered view that in this case, even in the absence of
Test Identification Parade, there can be no difficulty in acting upon the
identification of these accused made for the first time in Court by PW-10 and
PW-11. Thus, we reject the contention of the learned Senior Counsel in this
regard.

57. Nextly, the learned Senior Counsel would contend that it is highly
unbelievable that the car would have run for more than 100 Kilometres from
Vellamadam to Madurai with petrol as fuel. For this purpose, the learned Senior
Counsel would rely on the evidence of DW-1, who is a Mechanical Engineer and a
Salesman in Tata Company, which is the manufacture of the car in question. The
learned Senior Counsel would submit that according to the said witness, it is
highly impossible that the car would have run 100 Kilometres on petrol and if
once the said theory is unbelieved, as a corollary, according to the learned
Senior Counsel, the presence of these two accused at Madurai at the crucial time
as spoken to by PW-10 and PW-11 cannot be true. In order to appreciate this
contention, we have carefully gone through the evidence of DW-1 examined in
S.C.No.94 of 2009. We find that he has not at all stated that in the event
petrol along with diesel is filled in a diesel car, it cannot even move. He has
only stated that the car will run only to a shorter distance with the mixture of
petrol and diesel. But, it has not been elicited as to what would be the maximum
distance the car could run on petrol. The learned defence counsel has not placed
any material, like scientific data to substantiate their contention that the car
would not have run to such a long distance from Vellamadam to Madurai.

58. The learned Public Prosecutor, however, would submit that as spoken to
by PW-10 and PW-11, after the mixture was drained and diesel was filled, the car
had smoothly run. Relying on this, the learned Public Prosecutor would submit
that there was no technical snag developed in the car, even after filling of
petrol instead of diesel. He would also submit that it may be the case that a
diesel car cannot run on petrol, but, it can run to some distance on a mixture
of petrol and diesel. DW-1 has admitted during cross-examination that with such
mixture, it can run to a short distance. Going by the fact that after the
mixture was drained and diesel was filled, the car had run and having analyzed
the evidence of DW-1, we do not find any reason to reject the evidences of PW-10
and PW-11 in this regard.

59. In order to corroborate the evidences of PW-10 and PW-11, the
prosecution would further rely on the seizure of two Cans of mixture of petrol
and diesel from the petrol bunk at the instance of the first accused. According
to PW-10 and PW-11, the said two Cans of five litres capacity, with mixture of
petrol and diesel, were kept in the workshop and they were seized by PW-40 in
the presence of PW-17 on 25.11.2007 at 01.00 PM. These two Cans have been
identified by PW-10 as MO-43. In this regard, the learned Senior Counsel for the
accused would submit that it is highly unbelievable that the Plastic Cans, with
mixture of petrol and diesel, would have been kept intact till 25.11.2007,
though they were taken on 09.11.2007. But, absolutely, there is no cross-
examination by the accused disputing the said fact. The identity of these
Plastic Cans made by PW-10 has not been assailed by the defence by disputing the
said fact. This again clearly corroborates the evidences of PW-10 and PW-11.

60. Nextly, the evidence of PW-12 requires consideration. According to PW-
10 and PW-11, these two accused removed a pair of ear studs – MO-33 from D-3 and
the same were pledged with PW-12 by PW-11. PW-10 and PW-11 have spoken to about
the said fact. PW-12, in turn, has stated that between 10.00 and 10.30 AM, on
09.11.2007, PW-11 and another person came to his pawn broker shop and pledged
the ear studs. According to the case of the prosecution, the said ear studs were
recovered from PW-12 at the instance of PW-10 and PW-11. But, the learned Senior
Counsel for the accused would contend that the ear studs recovered from PW-12
have not been proved, at all by the prosecution, as the stolen articles from D-
3.
61. As we have already narrated, a pair ear studs were removed by these
two accused from D-3, handed over to PW-11 and PW-11 in turn pledged the same
with PW-12 from whom, they were recovered under EX-P14 – Mahazar. But,
unfortunately, these witnesses had not been called upon by the prosecution to
identify the said ear studs. None of the witnesses has identified the ear studs.
The ear studs [MO-33] have been identified by PW-2, as the ear studs belonging
to his mother. Though the ear studs have not been identified by PW-10, PW-11 and
PW-12, fortunately, they have been identified by PW-17 as the ones recovered
from PW-12. Thus, in our considered view, from the evidence of PW-17, it has
been established that MO-33 are the ear studs, which were recovered from PW-12.
Pledging of MO-33 with PW-12 has been spoken to by PW-10, PW-11 and PW-12. Thus,
the prosecution has clearly established that these two accused had removed the
ear studs – MO-33 from D-3 and pledged the same. This circumstance again clearly
goes to corroborate the evidences of PW-10 and PW-11 that they saw the accused
at Madurai in the company of D-3 and having the possession of the stolen car.

Circumstance Nos.IX and X.
62. Thereafter, according to PW-10 and PW-11, after diesel was filled in
the car, both the accused, together with the woman, proceeded towards Chennai.
There can be no controversy that the place known as “Onkoor Village” is located
on the National Highway between Madurai and Chennai. The dead body of D-3 was
found by PW-6 on 10.11.2007 at 07.00AM. On his information, the local Village
Administrative Officer [PW-5] also saw the dead body. The dead body has been
proved to be that of D-3, [regarding the proof of identity of the dead body, we
will discuss elaborately later]. The death is due to burn injuries. Thus, the
prosecution has proved that D-3, who was in the custody of these accused, was
burnt alive by them at Onkoor Village. Absolutely, there is no reason to
disbelieve the evidences of PW-5 and PW-6 in this regard. Even the learned
Senior Counsel for the accused has not advanced any argument disputing the fact
spoken to by the said witnesses. On the complaint of PW-5, as we have already
narrated, PW-30 registered a case in Crime No.355 of 2007 at 06.30 PM. PW-31,
took up the case for investigation, visited the place of occurrence and found
the dead body. These facts have not been disputed seriously by the defence
counsel.

63. The dead body found at Onkoor Village is stated to be that of D-3. The
learned Senior Counsel for the accused would submit that according to the
evidence of PW-5, the age of the woman was estimated at 25 years, whereas, D-3
was an old woman, aged 60 to 65 years. Therefore, the learned Senior Counsel
would submit that the dead body has not been identified to be that of D-3. We
find no force at all in the said argument. Admittedly, the body was in a charred
condition. PW-5 is not an expert so as to take his evidence as an opinion
evidence under Section 45 of the Evidence Act. The expert evidence is that of
the evidence of PW-27. He has opined that the age of the deceased would have
been between 60 and 65 years. Therefore, the argument of the learned Senior
Counsel, in this regard, deserves only to be rejected.

64. Nextly, the prosecution relies on the Superimposition Test conducted
by PW-38. While conducting autopsy on the body of D-3, PW-27 found the skull of
the deceased intact. He preserved the same. Thereafter, it was sent to PW-38 for
superimposition to find out the identity. The photograph [MO-68] was sent by PW-
31 to her for the purpose of comparison. On conducting Superimposition
Examination, she has given a report under EX-P-59. Based on the said report, she
has opined that the person found in the photograph [MO-68] and the skull of the
dead body found near Onkoor Village tallied, and thus, according to her opinion,
the skull belongs to the person found in the photograph [MO-68].

65. The prosecution projects this as a very valuable piece of evidence to
prove that the dead body found at Onkoor Village was that of D-3. With pains, we
would state that the prosecution has to lose this very valuable piece of
evidence because of the cavalier attitude of the prosecution during trial. It is
true that the photograph of a woman [MO-68] was sent for comparison. But,
unfortunately, the close relatives such as, PW-1, PW-2 and PW-14 have not been
called upon to identify the photograph to speak about the fact that the person
found in the photograph was D-3. PW-31, in his evidence, would only state that
he collected a photograph, under Form.91, on 19.11.2007. This, again, is
deplorable that he has not stated as to whose photograph he recovered and from
whom did recover the same. He has also not identified the photograph.
66. PW-38 along with her report has produced the superimposed image of the
skull and superimposed (mixed) image etc. This photo image forming part of the
report has also not been identified by any one who knew the identity of D-3.
Here also, with pains, we would state that though the Investigating Officer has
made an attempt to prove the identity of D-3, by means of Superimposition
Examination, because he has not given proper evidence before the Trial Court to
identify the photograph and because the close relatives of D-3 were not called
upon to identify the person in photograph, we find every force in the contention
of the learned Senior Counsel for the accused that the prosecution has to
necessarily lose the benefit of the evidence on Superimposition Examination.
Therefore, we hold that the evidence of PW-38 and her report do not conclusively
go to prove that the dead body found at Onkoor Village was that of D-3.

67. Though the prosecution has failed to prove the identity of the dead
body through Superimposition Test, fortunately, the DNA Test conducted by PW-37
will come to their rescue. A small piece of skull removed from the body of the
deceased found at Onkoor Village was taken by PW-27, the doctor who conducted
autopsy. It was sent to PW-37, who is an expert in DNA Forensic Science.
According to her evidence, on 28.02.2008, PW-14, the daughter of D-3 was sent to
her by Olakkoor Police for the purpose of DNA Examination. PW-14 has also spoken
to about the said fact. According to PW-37, the blood drawn from PW-14 and the
piece of skull were examined scientifically. On such DNA Examination, she found
that the skull belongs to the biological mother of PW-14. EX-P-57 and EX-P-58
are the reports submitted by her. Though she has been subjected to very lengthy
cross-examination, we find that nothing has been brought on record even to
slightly doubt the correctness of the findings of PW-37. Thus, from the evidence
of PW-37, the prosecution has clearly succeeded in establishing that the charred
dead body found at Onkoor Village was that of D-3. Since it was found by PW-5 on
10.11.2007, it can be concluded that these two accused, who left Madurai on
09.11.2007 telling to PW-10 and PW-11 that they proceeded to Chennai, had gone
towards Chennai, committed murder of the deceased by burning her alive by using
the mixture of petrol and diesel.

68. As we have already pointed out, the body of D-3 was found in a charred
condition. The right leg of the body was burnt and the left leg was found
amputated. In this charred condition, PW-27 conducted postmortem. According to
his opinion, the deceased would have died of burn injuries. The learned Senior
Counsel for the accused would point out that during cross-examination, PW-27 has
stated that he could not offer a definite opinion as to whether the death was
due to burn injuries or not. Thus, according to the learned Senior Counsel, the
cause of death has not been established by the prosecution. Though this argument
appears to be attractive, we do not find any force in the same.

69. A close reading of the evidence of PW-27 would go to show that she has
not ruled out that the death was due to burn injuries. It is not uncommon that
even in cases where corpus delicti could not be found, the Courts have held that
the death was homicidal based on the other circumstances. In this case, there
are enormous circumstances to prove that the deceased was in the custody of
these two accused from 09.11.2007 onwards, that she was found dead on 10.11.2007
and that the body was almost burnt. The accused had exclusive knowledge about
the fate of the deceased. When they have got no explanation to offer as to how
the deceased died, as it is required under Section 106 of the Act, in the light
of the opinion of PW-27, we do not have even a slightest hesitation to hold that
the death was homicidal. Of course, the prosecution would have done better by
conducting a Histo-pathological Examination to avoid any criticism against the
opinion regarding the cause of death. This, of course, is a lapse on the part of
the prosecution. But, on that score, we cannot simply reject the opinion offered
by PW-27 regarding the cause of death.

70. The learned Senior Counsel would further submit that had it been true
that the deceased was burnt alive, certainly, there would have been soot
particles found in the wind pipe. Since they were not found, according to the
learned Senior Counsel, the death would not have been due to burning. But, a
cursory perusal of EX-P41 and the evidence of PW-27 would go a long way to show
that except the skull and the upper limbs, all the other parts were completely
burnt. The trachea was not found, as it had been burnt to ashes. The lungs were
also not seen, as they were also fully burnt to ashes. Therefore, question of
finding soot particles in the internal organs does not arise at all in this
case. Therefore, this argument of the learned Senior Counsel deserves only to be
summarily rejected. Thus, from the evidence of PW-27, we have no hesitation to
sustain the finding of the Trial Court that D-3 died of homicidal violence, i.e,
by setting fire while she was alive. This circumstance, thus, stands proved.

71. By the side of D-3, a two litre Plastic Can was found and the same was
seized on 10.11.2007 by PW-41 in the presence of the witnesses. The same has
been marked as MO-35. Had it been identified by PW-10 and PW-11 that it was the
one, which was carried in the car by these accused, when they left Madurai
towards Chennai, on 09.11.2007, it would have been a very valuable piece of
evidence for the prosecution. But, unfortunately, PW-19 and PW-11 were not at
all called upon to identify the said Plastic Can by the learned Public
Prosecutor, who conducted the trial before the Trial Court. The learned Trial
Judge, in our considered opinion, has also miserably failed to exercise his
power under Section 165 of the Act to call upon the said witnesses to identify
MO-35, if they were capable of identifying the same. Even PW-31, who recovered
the same, has not identified the said Can. Thus, the prosecution has lost a very
valuable piece of evidence. In other words, we would say that though during
investigation, the said evidence was collected, it has not been properly brought
on record, as legally acceptable evidence.

Circumstance No.XI
72. It is the further case of the prosecution that after killing the
deceased, the accused proceeded to Chennai in the very same car. From Madurai,
according to the case of the prosecution, while the accused were proceeding to
Chennai in the car taking D-3, the car had crossed Athoor tollgate on 09.11.2007
at 06.15 PM. This fact has been spoken to by PW-19, who has also identified the
first accused. Thus, according to the learned Public Prosecutor, the prosecution
has established through this witness that the car crossed Athoor at 06.15 PM on
09.11.2007 and thus, the prosecution has established that D-3 was done to death
on 09.11.2007, before 06.15 PM. But, we find it very difficult to accept the
said evidence of PW-19, for the reason that first of all, the identification of
the first accused made for the first time in the Court cannot be believed. In
our considered opinion, when hundreds of vehicles cross the toll gate on a day,
it would be too difficult, for a man on duty, collecting toll, to identify a
driver of a particular vehicle alone. Further, this witness would have had only
a fraction of a minute to have a glimpse of the face of the driver. There were
no special reasons for this witness to have imprint of the image of the driver
of the car in question alone in his mind. Therefore, in the absence of prior
Test Identification Parade, it will not be safe to rely on the identification
made by him for the first time in Court.

73. Apart from the above, for every toll collected in respect of the
vehicles, there are entries made in the Registers. PW-19 has admitted, during
cross-examination that such entries are made through Computers in the file.
However, the prosecution has not produced any such records before the Trial
Court. Had the said records been produced, as provided in the Information
Technology Act, the prosecution would have been in a position to prove this
circumstance. Since the same was not done, we hold that the prosecution has
failed to prove that the car in question crossed Athoor Tollgate at 06.15 PM on
09.11.2007. But, at the same time, we would say that the failure of the
prosecution to prove this circumstance will not in any manner affect the
prosecution case, which is projected through the other circumstances.

Circumstance No.XII:-
74. It is the further case of the prosecution that after killing D-3, at
Olakkoor Village, both the accused reached Chennai in the very same car, bearing
Registration No.KL-02-W-189. PW-18, Tmt.N.Zubaida Beevi speaks about the
movement of these two accused together in Chennai on 10.11.2007. According to
her, she is a Siddha Doctor by profession. The first accused was a driver under
her from December 2006 onwards. On 03.04.2007, her car driven by the first
accused met with an accident. The father of the first accused monetarily helped
her to repair the car. But, she could not repay the same. Under the guise of
demanding the money, according to her further evidence, the first accused
attempted to misbehave with her by making sexual advances towards her. She
complained about the same to her husband, which resulted in a quarrel between
her husband and the first accused.

75. It is further alleged that the first accused attacked her husband with
knife. Regarding the said occurrence, there is a case registered on the file of
the K.K.Nagar Police Station, Chennai. It is her further evidence that on
10.08.2007, the first accused poured sugar into the petrol tank of the Ford Icon
Car belonging to her. As a result, the car suffered a repair and PW-18 had to
spend more than a sum of Rs.1,80,000/- to repair the same. Because of these
events, according to PW-18, the first accused was sent out of service and there
was also enmity between her and the first accused. The first accused, during
cross-examination, has not disputed the above facts spoken to by PW-18. As a
matter of fact, during cross-examination, the first accused himself has asserted
that there was a case registered in respect of the accident of the car of PW-18
driven by the first accused. He has further asserted, during cross-examination,
that on 20.10.2008, as against the first accused, PW-18 preferred a complaint in
respect of the alleged attack made on the husband of PW-18 by the first accused,
upon which a case has been registered on the file of the K.K.Nagar Police
Station, Chennai.

76. From the above undisputed facts spoken to by PW-18, the prosecution
has established that PW-18 was closely known to the first accused and after his
dismissal from service, they were not in good terms. It is the further evidence
of PW-18 that on 10.11.2007, when she was returning to her house, in her
Motorcycle, near Vadapalani Vijaya Hospital, the first accused intercepted her.
At that time, the first accused was in possession of the car bearing
Registration No.KL-02-W-189. The second accused was found in the company of the
first accused in the car. When PW-18 questioned the first accused as to why he
had intercepted her, he introduced the second accused as Gopi as his friend and
her further told her that the second accused had brought the jewels of his wife,
which he wanted to sell, as he was in need of money. When PW-18 had shown
reluctance, according to her, the first accused threatened her to kill her
husband and to kill the child of the brother of PW-18. Out of fear, according to
her, she agreed to sell the jewels. Immediately, thereafter, the first accused
gave a Gold Chain [identified as MO – 26], a Gold Ring [identified as MO-25] and
two bracelets [identified as MO-32 series]. PW-18 would further state that
instead of selling the same, she herself retained the same and gave a sum of
Rs.51,650/- from her and paid the same to the first accused. Thus, the above
Material Objects were kept in her house.
77. So far as the second accused is concerned, it is the contention of the
learned Senior Counsel for the accused that since there was no Test
Identification Parade held, the identification made by PW-18 for the first time
in the Court cannot be relied on. In our considered opinion, as we have already
dealt with the said question in respect of PW-10, PW-11 and PW-12, in the case
of PW-18 also, since the second accused was in the company of PW-18 for a quite
long time, it would have been quite natural for PW-18 to have registered the
identities of the second accused in her mind. Therefore, though there was no
Test Identification Parade held, in our considered opinion, the identification
of the second accused made by PW-18 in Court for the first time deserves only to
be accepted. Thus, we reject the argument advanced by the learned Senior Counsel
in this regard.

78. So far as the first accused is concerned, the above facts spoken to by
PW-18 have been totally denied by the accused. Though the said witness has been
subjected to lengthy cross-examination, nothing could be brought out on record
to disbelieve the above evidence of PW-18. It is worthwhile to note that PW-18
herself was identified only by the first accused to the police. Such discovery
of the witness, i.e., PW-18, on being identified by the first accused, will be
relevant under Section 8 of the Evidence Act. The said conduct of the first
accused in identifying PW-18 is yet another piece of evidence against the
accused, which would corroborate the evidence of PW-18.

79. The evidence of PW-18 in respect of the possession of MO – 25, MO-26
and MO-32 series is again supported by the recovery of these jewels from her. In
pursuance of the disclosure statement made by the first accused to PW-40, in the
presence of PW-17, these jewels have been subsequently recovered. The said
evidences of PW-17 and PW-41 would go to ensure the credibility of the evidence
of PW-18 in this regard. It needs to be mentioned, at this juncture, that MO-25,
MO-26 and MO-32 are the stolen properties from the house of D-1. PW-2 has
identified the same.

80. It is the further evidence of PW-18 that on 11.11.2007, the first
accused alone had gone to the house of PW-18. At that time, he gave to her two
Gold Rings with white stones – MO-52 series, a Cellphone – MO-51 and Rs.20,000/-
. She has further stated that when she enquired the first accused about the
details of the Kerala registration car, he told her that the said car belonged
to a keralite and to leave the owner of the car in the Airport, he had come
there in the car. He had further told her that the said keralite would return
after one week and until then, he will stay at Chennai to take him back him to
Kerala. This fact, as spoken to by PW-18, is again denied by the first accused.
But, the recovery of the Cellphone – MO-51 and the two Gold Rings with white
stones – MO-52 series, on 26.11.2007 at 03.30 PM in the presence of PW-17 by PW-
40 on the disclosure statement made by the first accused clearly goes to
corroborate the said evidence as spoken to by PW-18. Thus, we are of the
considered view that the prosecution has proved that on 11.11.2007, the first
accused was found in possession of the car [MO-15] as well as the above two Gold
Rings and the Cellphone, which he had given to PW-18 for safe custody.

81. It is the further evidence of PW-18 that on 12.11.2007, both the
accused again came to her house and handed over a gray colour suitcase and a
blue colour suitcase. The blue colour suitcase contained a Tape Recorder, DVD
Player, a Silver Plate, a Camera and other articles. She kept all the above
items at her home. These items have been proved through PW-2 to be stolen
articles. The first accused has denied the above fact also. But, the recovery of
these Material Objects from the custody of PW-18 on 26.11.2007 at the instance
of the first accused by PW-41 in the presence of PW-17 clearly corroborates her
evidence. Thus, in our considered opinion, from the evidence of PW-18, it has
been established that on 11.11.2007, the first accused was found in possession
of the stolen car and the above Material Objects which are stolen articles from
the house of D-1.

82. It is her further evidence that at about 10.00 AM, on 12.11.2007, the
first accused met PW-18. He wanted to book a room for him in Aaditya Hotel,
Vadapalani, Chennai. According to her, she initially declined for the same. She
would further state that the first accused threatened her that he would do away
with her husband and the child. Out of fear for him and out of compulsion,
according to her, she took him to Aaditya Hotel, Vadapalani, Chennai. Since the
first accused did not know to read and write English, she herself filled up the
form given by the Hotel Manager. The Nagercoil address of the first accused was
filled up in the same. Thus, according to her, they went to the room, from where
the first accused was found contacting somebody over Cellphone. He tried to
misbehave with her. But, she with stood. At 02.30 PM, on the same day, they
vacated the room, and thereafter, the first accused left elsewhere. This fact,
spoken to by PW-18, is denied by the first accused. Though she has been
subjected to lengthy cross-examination, in an attempt to render her unbelievable
on this aspect, we find nothing on record to create even a slightest doubt
regarding this fact spoken to by her.

83. At this juncture, we may refer to the evidence of PW-3 and EX-P3. PW-3
was working as a Front Office Assistant in Aaditya Hotel at Chennai. According
to him, on 12.11.2007, at 09.45 AM, PW-18 and a person, by name Anbarasu, came
to the Hotel and wanted a room to be booked for them for a short stay. PW-3 has
identified in Court the first accused as the one who accompanied PW-18. PW-18
told him that the first accused was her driver. The necessary form for booking
room was filled up only by PW-18. He would further state that a sum of
Rs.5,000/- was paid by PW-18 towards rental advance. He has also spoken to about
the fact that the Room No.302 was booked in the name of the first accused, where
they stayed between 09.45 AM and 02.35 PM. The evidence of PW-3 has been duly
corroborated by the Guest Registration Card maintained in the regular business
of the hotel which has been marked as EX-A3. During cross-examination, it has
been suggested that PW-3 was not at all working in the said hotel during the
relevant point of time. The answers elicited, during cross-examination, would
only further go to strengthen the facts spoken to by the said witness during
chief-examination. EX-P3 has also not been shown to be doubtful. Thus, the
evidence of PW-3 coupled with EX-P3 would clearly go to corroborate the evidence
of PW-18 to establish the fact that the first accused was in Chennai on
12.11.2007 along with the stolen car – MO-15 and with PW-18.

84. It is the further evidence of PW-18 that on 18.11.2007, the first
accused again met her. At that time, he got back the suitcase [Blue Colour] MO-
9], which he had earlier given to her on 12.11.2007. But, he left the other suit
case [Gray Colour] [not marked] and the other articles in her possession. He
told her that he would come after sometime and get back the same.

85. On 26.11.2007, in pursuance of the disclosure statement made by the
first accused, as we have already noted, PW-18 was identified by the first
accused from whose custody, the above stolen articles were seized by PW-40 in
the presence of PW-17. The stolen articles, which were in the possession of PW-
18, have been fully identified by her. Thus, the prosecution has clearly
established that both the accused were in Chennai between 10.11.2007 till
18.11.2007. It has also been established that the accused were found in
possession of the stolen car as well as stolen articles about which reference
has been made above.

86. Now, let us examine the evidence of PW-21. He is a resident of West
Mambalam in Chennai and he is working as a Manager in Vadapalani Car Care
Centre. According to him, on 10.11.2007, the first accused produced a Tata
Indigo Car to him and wanted him to wash the same. According to his further
evidence, on 26.11.2007, he was identified by the first accused to PW-41. During
interrogation, according to him, he verified the register maintained by him and
informed PW-41 that the car bearing Registration No.KL-02-W-189 was serviced by
him on 10.11.2007. From the said evidence, the prosecution would try to
strengthen its case that the car in question was in the possession of the first
accused on 10.11.2007 and the same was washed. But, we are not impressed by the
evidence of the said witness. For more than one reason, the evidence of this
witness needs to be rejected. As we have already stated, there was no Test
Identification Parade held. Though he has stated that he maintained a register
of the cars serviced by him on 10.11.2007, it is not known as to why the said
register was not seized by PW-41. Had it been seized, the said register, being a
register maintained during the regular course of business, would have been
relevant and the same would have corroborated the evidence of PW-22, thereby
ensuring the credibility of the said witness. Since the same has not been done
by the prosecution, we cannot give any credibility to the said witness, and
therefore, we are inclined only to reject the evidence of the said witness.

87. Nextly, the evidence of PW-20 needs to be considered. PW-20 was a
resident of Vadapalani in Chennai. He was running a Sticker Shop. According to
him, on 13.11.2007, the first accused came to him and wanted a number plate to
be fixed in a Tata Indigo Car. He gave the number of the car as TN-01-R-3520.
The first accused gave him a sum of Rs.300/-. Accordingly, he made the number
plate and handed over the same on the same day. Subsequently, on 26.11.2007, he
was identified by the first accused and at that time, PW-20 was examined by PW-
41. For two reasons, we have to simply reject the evidence of this witness.
First of all, there has been no Test Identification Parade held and the
yardstick, which we have applied in respect of PW-10, PW-11, PW-12 and PW-18
cannot be made applicable to this witness. Above all, his evidence is not
corroborated by any other materials such as, any document etc. Further, the
number plate said to have been made by him was not even shown to him during
chief-examination in Court for the purpose of identification. In a very vague
manner, he has stated that he made a number plate and gave the same to the first
accused. Unless the witness has identified the number plate said to have been
made by him and unless there is any other document, like receipt or any other
register for the same, in the light of the absence of Test Identification
Parade, the evidence of PW-20 cannot be believed at all. We would like to state
that this is a serious lapse on the part of the prosecution, who has failed to
call upon this witness to identify the number plate, though according to the
prosecution, the said number plate was found fixed in the stolen car. But, the
original number plate had been replaced by the number plate showing TN-01-R-
3520, when the stolen car was in the possession of the accused Nos.1 and 2, at
Chennai has been spoken to by PW-18. The said fake number viz., TN-01-R-3520 is
the original number of the car owned by PW-18. From the evidence of PW-18, the
change of number plate by the accused has been established by the prosecution.

Circumstance No.XIII.
88. Now, it is the time to examine the Star Witness for the prosecution,
i.e., PW-17 as well as the evidence of PW-41 in respect of the arrest of both
the accused, their disclosure statements and the consequential recoveries of the
stolen articles. PW-17 is the Village Administrative Officer, Nagercoil. He was
the one in whose presence, on 12.11.2007, the house of D-1 was opened by force,
where the dead bodies were noticed by PW-1 and PW-41. He was a witness for the
Observation Mahazar prepared on 12.11.2007. According to him, on 19.11.2007, as
per the direction of the Tahsildar, Nagercoil, and as per the request made by
PW-40, he went to the Kottar Police Station for the purpose of assisting the
police to nab the culprits involved in the crime. One Raja, the then Revenue
Inspector was also summoned. According to his further evidence, on 19.11.2007,
at 11.00 AM, the first accused was arrested near the shop of one Charles at
Vellamadam. Similarly, the second accused was also arrested on the same day, as
he was identified by the first accused. According to him, as soon as the arrest,
the first accused gave a voluntary confession statement and similarly, the
second accused also gave a voluntary confession statement in his presence, which
were reduced into writing by PW-40.

89. In respect of the credibility of this witness, the learned Senior
Counsel for the accused would have serious reservations. According to them, he
has been used as an omnibus witness through out the investigation for various
purposes by PW-40, which, according to the learned Senior Counsel, would only go
to show that he is an obliging witness to the police. Therefore, according to
the learned Senior Counsel, the said witness cannot be believed. But, the
learned Public Prosecutor would submit that PW-17 is an independent witness and
a responsible Government Servant and so, his credibility cannot be doubted. He
would further submit that though the said witness was used by the police on two
occasions, it cannot be said that the said witness is an obliging witness. The
learned Public Prosecutor would take us through the cross-examination of this
witness in order to establish his contention that nothing has been brought on
record to disbelieve his evidence. The evidence of the said witness, which is
duly corroborated by the evidences of PW-40, PW-10, PW-11, PW-12, PW-16, PW-18
and PW-3 and the contemporaneous records, like recovery mahazars would all go to
prove that PW-17 is a witness upon whom implicit reliance can be made.

90. We have anxiously considered the above rival submissions. It is true
that PW-17 was the witness for the Observation Mahazar, which was prepared on
12.11.2007. Thereafter, as we have already stated, on the request made by the
police, after getting permission from the Tahsildar, Nagercoil, along with the
said Raja, the then Revenue Inspector, he went to the Police Station to assist
the police. It is needless to point out that as per the Code of Criminal
Procedure, it is the duty of every citizen, more particularly, a public servant
to assist the investigation. Thus, PW-17 had only assisted PW-40 in the matter
of investigation and such an act of PW-17 cannot be termed as an act of
obliging. The evidence of this witness cannot be discarded simply because, he
is an official witness and he helped the police in the investigation, [vide
PRADEEP NARAYAN MADGAONKAR vs. State of Maharashtra reported in 1995 (4) SCC
255]. As has been pointed out by the learned Public Prosecutor, a close scrutiny
of the cross-examination of PW-17 as well as the evidence of PW-40 would go to
show that though they have been subjected to a very lengthy and incisive cross-
examination, nothing could elicited to discredit their evidences. The learned
Senior Counsel for the accused were not in a position to point out any material
on record, which would create a doubt in the credibility of this witness. As a
matter of fact, PW-17 has with stood the cross-examination of the learned
counsel for the accused, who have framed questions like., successive arrows from
a bow and nothing could demolish the credibility of PW-17. Therefore, we hold
that the Lower Court was right in placing implicit reliance on the evidence of
PW-17, coupled with the evidence of PW-40 in respect of the arrest of these two
accused and the confession statements given by them to PW-40 while in custody.

91. The first accused, as has been spoken to by PW-18, gave a voluntary
statement, in which he made certain disclosures about the concealment of certain
relevant facts. In pursuance of the same, according to the prosecution, the
concealed articles, which were found in the possession of the accused, were all
recovered in the presence of PW-17 by PW-40. The Trial Court has chosen to admit
in evidence EX-P63, which is a part of the long confession statement given by
the first accused on 19.11.2007 at 12.15 PM as soon as his arrest. The Tamil
version of EX-P63 reads as follows:-
vd;id Tl;or;brd;why; ehd; Muy;tha;bkhHp buapy;Bt !;Blrd; gf;fk; kiwj;J
tpl;oUf;Fk; lhl;Blh nz;oBfh fhiua[k;, fhu; of;fpapy; itj;J nUf;Fk; khypf; Kfk;kJ
tPl;oy; nUe;J ehd; jpUoa bghUl;fisa[k; khypf; Kfk;kJ mtu; kidtp fjP$h gPtp
MfpBahiu kpul;o gzk; gwpf;f bfhz;L brd;w fj;jpiaa[k; vLj;J M$u; bra;fpBwd;.
BkYk; vd;Dila oiutpA; iybrd;ira[k; M$u; bra;fpBwd;. brd;diapy; Rigjh gPtpaplk;
bfhLj;J itj;Js;s khypf; Kfk;kJ tPl;oy; nUe;J jpUoa Rl;Bf!; kw;Wk; bghUl;fisa[k;
fjP$h gPtpapd; eiffis tpw;W thA;fpa bry;Bghida[k;, nuz;L BkhjpuA;fisa[k;
buhf;fk; gzk; U.20,000/- Rigjh gPtpaplk; bfhLj;J itj;Js;sih thA;fp jA;fsplk;
M$u; bra;fpBwd;.”
The english translation of EX-P63 reads as follows:-
“If you take me, I will show the Tata Indigo Car near Aaralvaimozhi
Railway Station and I will produce the articles stolen from the house of Malik
Mohammed, which I have kept in the dickey of the car. I will also produce a
knife, which I used to intimidate Malik Mohammed and his wife Katheeja Beevi for
the purpose of extracting money from them. Further, I will produce my driving
license. I will also produce the suitcase and other articles, which I had stolen
from the house of Malik Mohammed, which had been handed over to one
Tmt.N.Zubaida Beevi in Chennai. I will also produce a Cellphone which I have
purchased by selling the jewells of Kajeetha Beevi, two Rings and cash of
Rs.20,000/-, which I have given to Tmt.N.Zubaida Beevi.”

Similarly, the Trial Court has admitted a portion out of the long confession
statement given by the second accused, on 19.11.200,7 at 03.15 PM, in evidence
as EX-P64, which reads as follows:-
“ehd; vd;dplk; nUe;j tpiy cau;e;j thl;r;, Bfkuh, bry;Bghd;, vdJ
gh!;Bghu;l; uapy; of;bfl; Mfpatw;iw jA;fsplk; M$u; bra;fpBwd;.”
The english translation of EX-P64 is as follows:-
“I will produce a costly watch, Camera, Cellphone, my Passport and the
Railway Ticket from my possession to you. I will also produce the articles in
Madurai.”

92. A close reading of the portions of the statements admitted as EX-P63
and EX-P64 would go to show that the prosecution, as well as the Trial Judge,
have not shown any diligence while admitting the same in evidence. It is
needless to point out that Section 27 of the Act is a proviso to Section 25 of
the Act. According to Section 27 of the Act, so much of information, whether it
amounts to a confession or not, made by an accused while in custody of the
police, is relevant, provided the said information had led to the discovery of a
fact. Here, it needs to be emphasised that it is not discovery of every fact,
which will make the statement admissible. Per contra, it is only the discovery
of a relevant fact, which will make the statement relevant under Section 27 of
the Act. Therefore, before admitting any statement of an accused made to the
police while in custody, the Court should be satisfied as to whether there was
discovery of any fact made in consequence of the same and whether the relevancy
of the said fact has been established by the prosecution. In the absence of
these two basic elements, the statement should not be admitted in evidence at
all.
93. Above all, as has been held in Pulukuri Kottaya vs. Emperor reported
in AIR 1947 Privy Council 67, not the entire statement of the accused, but “so
much of information”, as it relates distinctly to the fact thereby discovered
alone, may be proved. In Pulukuri Kottaya’s case, the Trial Court had admitted
the statement of the accused, which reads as follows:-
“I stabbed Sivayya with a spear. I hid the spear in a yard in my village.
I will show you the place.”

94. The above statement was admitted in evidence in toto, relying on the
Judgment of a Full Bench of this Court in Athappa Gounder vs. Emperor reported
in AIR 1937, Madras 618, wherein this Court had held that if there has been
discovery of a relevant fact, then the entire statement of the accused is
admissible. The Privy Council in Pulukuri Kottaya and others vs. Emperor, [cited
supra], reversed the said finding and held that the expression “distinctly” as
employed in Section 27 of the Act would make it abundantly clear that so much
information, which has led to the discovery of the fact alone is admissible. So
holding, the Privy Council held that in the statement admitted by the Trial
Court, the portion “I stabbed Sivaiyya with a spear” had nothing to do with the
discovery of spear, and therefore, that portion was held to be inadmissible. The
Privy Council held that the disclosure statement about the concealment of a fact
alone is admissible. The said Judgment of the Privy Council has been approved by
the Hon’ble Supreme Court and the same has been consistently followed. In State
[NCT of Delhi] vs. Navjoth Sandhu reported in 2005 (11) SCC 660, the Hon’ble
Supreme Court has observed thus:-
“The decision of the Privy Council in Pulukuri Kottaya’s case, which has
been described as locus classics, had set at rest much of controversy that
centered round the interpretation of Section 27 of the Act. To a great extent,
the legal position has got crystalized with the rendering of this decision. The
authority of the Privy Council’s decision has not been questioned in any of the
decisions of the new century and till date, the passages in this famous decision
are being approvingly quoted and restored by the Judges of the Apex Court.”

95. In the case on hand, without noticing the above elementary principle
of criminal jurisprudence, the Trail Court has admitted even the portions where
they confessed that committed robbery, theft and extortion, etc. These portions
of EX-P63 and EX-P64 ought not to have been admitted by the Trial Court in
evidence.

96. Nextly, in EX-P63, there is a mention that the first accused had
hidden a Tata Indigo Car near Aaralvaimozhi Railway Station. The Investigating
Officer had failed to interrogate him further about the number of the vehicle.
Whatever be the case, in pursuance of the said statement, the car with number
plate, bearing Registration No.TN-01-R-3520, was identified and produced by the
first accused near Aaralvaimozhi Railway Station. The said car has been proved
to be the stolen car bearing Registration No.KL-02-W-189. This portion of EX-
P63, which has led to the discovery of the car from the place of concealment is
surely admissible. The recovery of the said car has also been spoken to by PW-17
and PW-40, which have been corroborated by the recovery mahazar. Thus, it has
been clearly held that the car – MO-15, which was stolen from the house of D-1
was found in the possession of the first accused until 19.11.2007.

97. Nextly, in EX-P63, the first accused has stated that he would produce
the stolen articles from N.Zubaida Beevi – PW-18. He has not given the details
of the stolen articles. We are unable to understand as to how the Trial Court
could justify itself in admitting this part of the statement in evidence. As per
the settled law, the statement of the first accused in EX-P63 that he would
produce the articles, which he has stolen from the house of Malik Mohammed, is
not at all admissible, [vide Pulukuri Kottaya’s case]. Further, the details of
the properties also have not been given in EX-P63 by the first accused. PW-41
did not care further to interrogate the first accused in respect of the details
of the properties kept concealed by him in the car. Therefore, this part of the
statement in EX-P63, in our considered opinion, cannot be considered. In EX-P63,
the first accused has further stated that he would produce the driving license
and accordingly, it was also produced. However, the driving license has not been
exhibited in evidence. Further, there is no relevancy between the driving
license and the crime. Therefore, this part of the evidence ought not to have
been admitted as there is no relevancy. Similarly, that part of EX-P63, where
the first accused has stated that he will produce the knife which he used to
intimidate Malik Mohammed and Katheeja Beevi for the purpose of extracting
money is also not admissible in evidence, because, the relevancy of the knife
has not been established.

98. Nextly, in EX-P63, the first accused has stated that I will get back
the suitcase and the other articles, [which he had stolen from the house of
Malik Mohammed from the possession of one Tmt.N.Zubaida Beevi – not admissible].
Even the address and other details of the said N.Zubaida Beevi were not elicited
from the first accused by PW-40.

99. It is the further case of the prosecution that in pursuance of the
said statement, the first accused identified PW-18 – N.Zubaida Beevi at Chennai,
from whom number of articles were recovered. In our considered opinion, the act
of the first accused in identifying N.Zubaida Beevi is surely relevant under
Section 8 of the Evidence Act. Similarly, the recovery of these Material Objects
from the possession of N.Zubaida Beevi – PW-18 is also relevant.

100. Further, in EX-P63, the first accused has stated that he handed over
a Cellphone, two Rings and Rs.20,000/- to N.Zubaida Beevi. This part of EX-P63,
which has led to the discovery of two Rings and the Cellphone, is surely
admissible under Section 27 of the Evidence Act, because these articles were
recovered from the possession of N.Zubaida Beevi. But, the statement that “I
will produce the jewels of Katheeja Beevi and the Cellphone, which were
purchased by me, by selling the jewels”, is not admissible as provided in
Section 27 of the Act.

101. Now, let us consider the admissibility of EX-P64. Even according to
the case of the prosecution, the Passport of the second accused, a Cellphone,
Train Ticket, a Watch and a Camera were found in the physical possession of the
second accused at the time of arrest. They were not discovered out of any
disclosure statement made by the second accused so as to fall within the ambit
of Section 27 of the Act. But, the Trial Court has admitted a part of his
confession, where he has stated that he had produced a Watch, Camera, Cellphone
and Train Ticket to the Police Officer as though it falls within the ambit of
Section 27 of the Act. This part of the statement, contained in EX-P64, admitted
in evidence by the Trial Court, is liable to be echewed and the same is not
admissible in evidence.

102. Now, what remains in EX-P64 is the statement of the accused that he
will produce the articles from Madurai. In the said statement, it has not been
stated as to what were the articles and where they were concealed by the
accused. A mere vague statement that “I will produce the articles from Madurai”,
in our considered opinion, would not amount to a disclosure statement so as to
fall within the scope of Section 27 of the Act. Thus, the entire confession,
i.e., EX-P64, is not admissible in evidence and the same is liable to be echewed
from consideration. This shows that the Trial Court has not bestowed its
attention to admit in evidence the relevant portion of the statement of the
second accused, which would fall under Section 27 of the Act. Similarly, EX-P48
and EX-P49, said to be the confession statements of A-1 and A-2 respectively, to
PW-31 have been admitted in evidence, though there was no discovery of any
relevant fact in consequence of the said statements.

103. Though we have held that a part of EX-P64 and in its entirety EX-P64
are not admissible in evidence, the same will not in any manner create a dent in
the case of the prosecution. Apart from making the statements, the accused
themselves had led the police to various places and produced the stolen articles
and also identified the witnesses, like PW-10, PW-11, PW-12, PW-18 etc. The
conduct of the accused, which led to the discovery of the relevant facts, would
fall within the ambit of Section 8 of the Evidence Act, and thus, their conduct
in identifying and producing the stolen articles from their custody and from the
custody of the others and the identification of the witnesses from whose custody
some more stolen articles were recovered are very strong incriminating
circumstances against the accused, which would, surely, go to strengthen the
case of the prosecution.

Circumstance No.XIV

104. Now, let us go into the finger print evidence, which is projected as
one of the strongest pieces of evidence against the first accused. On
13.11.2007, PW-25, the Finger Print Expert, found three chance finger prints
just on the door of the room, where the body of D-1 was found at the house of D-
1. PW-25 took photograph of the same and preserved the same for the purpose of
comparison. Subsequently, according to him, he received a sample finger print
allegedly obtained from one Anbarasu. On comparison of the same, he found that
the chance finger print lifted from the place of occurrence tallied with the
sample finger print of Anbarasu. EX-P38 is the report. The learned Senior
Counsel for the accused would contend that the sample finger print of the first
accused was never taken for the purpose of comparison and there is no evidence
that what was sent to PW-25 for the purpose of comparison was that of the first
accused. In order to substantiate his contention, the learned Senior Counsel has
taken us through the evidence of PW-40 and PW-41 as well as PW-25. We are really
shocked to state, as has been rightly pointed out by the learned Senior Counsel,
that absolutely, there is no evidence that the sample finger print was obtained
from the first accused by any officer and the same was sent for the purpose of
comparison. The sample finger print used by PW-25 has not been identified by any
body to the effect that it was taken from the first accused. It is needless to
point out that on arresting an accused, the Investigating Officer has got every
power to take sample finger print from the accused for the purpose of
comparison. The Hon’ble Supreme Court has settled the law on this aspect holding
that it does not violate Articles 21 as well as 20(3) of the Constitution of
India, [vide Selvi Vs. State of Karnataka reported in 2010 (7) SCC 263. The
Investigating Officer can very well take the finger prints from the accused also
with the permission of the jurisdictional Magistrate for the purpose of
comparison. The Investigating Officer, in this case, had not followed the same.
Thus, for want of evidence, connecting the first accused with the finger print,
which was used for comparison by PW-25, what is supposed to have been a very
valuable piece of evidence in favour of the prosecution has been now lost. Thus,
the evidence of PW-25 and his report PW-38 will not be of any use for the
prosecution.

Circumstance No.XV
105. Next comes the evidence of PW-39, who is the Assistant Manager in
Airtel Company, which is a Cellphone Service Provider. According to him, a
Cellphone instrument was given to him by PW-41 to offer his opinion as to
whether the said instrument was used by using any sim card. Undoubtedly, every
Cellphone instrument will have a number known as “EMI number”. From the calls
recorded in the server of the Service Provider, it could be easily found out as
to whether the said instrument was used by using any sim card. It is for that
purpose, PW-39 has been examined. But, unfortunately, his evidence is very vague
and nothing was elicited connecting any Cellphone instrument involved in this
case with any sim card. He has only stated that he gave the above details
pertaining to a Cellphone. It has not been elicited as to what is the number of
the instrument, what is the name of the maker of the instrument, what is the sim
card which was used and what are all the calls made etc. The evidence of this
witness, according to the learned Public Prosecutor, is a very valuable piece of
evidence. Of course, this would have turned out to be a very valuable piece of
evidence but for the lethargic attitude of the prosecution in not eliciting the
above relevant facts through him. Thus, this evidence of PW-39 is not useful for
the prosecution in any manner.

106. Next comes the evidence of PW-4, who is the owner of a Cellphone
Shop, where he was selling Nokia Cellphone instruments. According to him, on
12.11.2007, the first accused along with a woman came to his shop and purchased
a sim card Airtel No.98406 76533, which was registered in the name of the first
accused. But, the prosecution has not made use of this witness by connecting the
said sim card with any Cellphone recovered from the accused as a stolen property
from the house of D-1. No document pertaining to the sale of the sim card to the
first accused has been produced in evidence. The identity made by this witness
of the accused for the first time in the Court also cannot be given weightage
off. Thus, the evidence of PW-4 is of no use to the prosecution.

Circumstance No.XVI
107. The learned Public Prosecutor would submit that the false plea taken
by the accused itself is an added circumstance to be used against them. He has
pointed out that the first accused has denied his previous employment as a
driver under D-1 as well as under PW-18. A cursory perusal of the answers given
by the accused to questions under Sections 313 of the Code of Criminal Procedure
would go to show that they have simply denied all the questions as false. In our
considered opinion, this false plea is an added circumstance in favour of the
prosecution to prove the guilt of the accused.

108. From the foregoing discussions, we have come to the conclusion that
though the prosecution has not proved all the circumstances projected, it has
proved as many as twelve circumstances beyond any shadow of doubt. The summary
of the proved circumstances are as follows:-
(a). On the crucial date of the occurrence, D-1 to D-3 alone were at the
house of D-1.
(b). The deceased Nos.1 and 2 were murdered at the house of D-1, on
08.11.2007 and the properties belonging to D-1, which were kept in the house of
D-1 were stolen away.
(c). The car belonging to D-1, bearing Registration No.KL-02-W-189, was
also stolen away, in which D-3 was abducted by these accused.
(d). On their way to Madurai, they filled petrol at the petrol bunk at
Vellamadam, on 09.11.2007 at 03.29 AM.
(e). On 09.11.2007, at about 09.00 AM, the car along with D-3 reached
Madurai driven by the first accused and accompanied by the second accused. The
car could not run further, because of the mixture of the petrol and diesel, and
therefore, it was drained.
(f). The jewels belonging to D-3 were stolen by A-1 and A-2 and pledged
through PW-11 to PW-12.
(g). From Madurai to Chennai at Onkkur Village, D-3 was burnt alive by
the accused Nos.1 and 2 and the body was left in bush by the side of the main
road.
(h). On reaching Chennai, on 10.11.2007, both the accused sold away two
gold ornaments stolen from the house of D-1, i.e., two Bracelets, a Chain and a
Ring to PW-18, for a sum of Rs.51,650/-.
(i). Again, on 12.11.2007, both the accused met PW-18 and gave some more
stolen articles, including two suitcases stolen from the house of D-1 to PW-18.
(j). On 12.11.2007, at 10.00 AM, the first accused alone met PW-18 and
both of them stayed till 02.30 PM at Aaditya Hotel in Chennai.
(k). On 18.11.2007, the first accused met PW-18 and got back the blue
colour suitcase alone and allowed the gray colour suitcase and other stolen
articles to be in the custody of PW-18.
(l). The first accused was arrested on 19.11.2007 at 11.00 AM, at
Vellamadam. On such arrest, he made a disclosure statement and the stolen
properties were recovered including the car belonging to the deceased at his
instance.
(m). The second accused was arrested on the same day at 03.15 PM. On such
arrest, he also made a disclosure statement and the stolen articles were
recovered at his instance and some stolen articles were recovered from his
possession.
(n). False plea of the first accused.

109. The above clinchingly proved circumstances form a complete chain,
which, in our considered opinion, unerringly point to the guilt of the accused
and there is no other hypothesis, which is consistent with the innocence of the
accused. We firmly hold that the above offences were committed only by these two
accused and none else. There is no controversy that the murders of D-1 and D-2
and the robbery at the house of D-1 had taken place in one and the same
occurrence. Therefore, the person, who committed the robbery, had committed the
murders of D-1 and D-2 as well. From the recovery of the stolen articles, more
particularly, the car from the custody of the accused and the fact that both the
accused were found in possession of stolen articles soon after the commission of
robbery as well as the other stolen articles, as discussed above, the
presumption under Section 114(a) of the Evidence Act clearly goes in favour of
the prosecution. The said legal presumption also duly corroborates the other
evidences so as to hold that these two accused alone committed robbery and
murder of these three deceased. Thus, we firmly hold, without any shadow of
hesitation, that it is only these two accused and none else, who committed the
gruesome murder of the three deceased and other crimes. Accordingly, they are
liable to be punished.

110. In view of the above discussions, we find that both the accused are
guilty as detailed below:-
i. We hold that both the accused are guilty under Section 449 of the
Indian Penal Code, under Charge No.2.
(ii). We hold that both the accused are guilty under Section 302 of the
Indian Penal Code for having committed murder of D-2 – Gnanaprakasam, under
Charge No.3.
(iii). We hold that both the accused are guilty under Section 302 of the
Indian Penal Code for having committed the murder of D-1 – Malik Mohammed, under
Charge No.4.
(iv). We hold that both the accused are guilty under Section 392 of the
Indian Penal Code, for having committed robbery, under Charge No.5.
(v). We hold that both the accused are guilty under Section 364 of the
Indian Penal Code for having abducted D-3, under Charge No.8.
(vi). We hold that both the accused are guilty under Section 302 of the
Indian Penal Code for having committed the murder of D-3 – Katheeja Beevi, under
Charge No.10.
(vii). We hold that both the accused are guilty under Section 201 of the
Indian Penal Code for having caused disappearance of the evidence relating to D-
3, under Charge No.11.
(viii). We hold that the accused are not guilty under Section 120(B) of
the Indian Penal Code under Charge No.1, and so, they are entitled for acquittal
from the said charge.
xi. We hold that the Anbarasu – first accused is entitled for acquittal
for the offence under Section 485 of the Indian Penal Code, because there was no
charge framed against him under Section 485 of the Indian Penal Code.

111. Accordingly, we are constrained to confirm the conviction of the
accused recorded by the Trial Court under various charges, as concluded above,
except the conviction under Sections 120(B) and 485 of the Indian Penal Code.

112. Now, coming to the quantum of punishment, there are two Suo motu
Revisions in Crl.RC.(MD).Nos.201 and 963 of 2011.

113. The Trial Court, while finding the first accused guilty under ten,
out of twelve charges framed, had chosen to impose death penalty only in respect
of charge No.10 relating to the murder of D-3 – Katheeja Beevi. Under the other
charges, the Trial Court has not found them fit to fall within the rarest of
rare dictum so as to impose death penalty, more particularly, in respect of the
murder of D-1 and D-2. Acting on the very same evidence let in, the Trial Court
has found that it is not a rarest of rare case to impose death sentence upon the
second accused.
114. However, this Court has taken a Suo motu Revision as against the
second accused to examine the correctness of the sentence imposed under various
charges and to consider enhancing the punishment. Similarly, in respect of the
first accused also, this Court has taken a Suo motu Revision to consider as to
why the sentence under the other charges should not be enhanced.

115. On the question of sentence, the learned Public Prosecutor would
submit that both the accused should have been imposed with death penalty, since
the entire occurrence is in the nature of shocking the collective conscience of
the society. In other words, according to him, the entire occurrence would fall
within the ambit of “rarest of rare dictum”, and therefore, for the murders of
D-1 to D-3, which are pre-mediated, gruesome, diabolic and barbaric, having a
great impact on the society, both the accused should have been imposed with
death penalty.

116. But, the learned Senior Counsel for the accused would submit that
applying the tests enumerated in Bachan Singh v. State of Punjab, reported in
1980 (2) SCC 684 : 1980 SCC (Crl) 580, by a Constitution Bench of the Hon’ble
Supreme Court, this is not a rarest of rare case, where the accused deserve to
be imposed death penalty. Therefore, they pray for dismissal of the Suo motu
Revisions and for setting aside the death sentence imposed on the first accused
in respect of the murder of D-3 – Katheeja Beevi.
117. The learned Senior Counsel for the appellants as well as the learned
Public Prosecutor have placed reliance on number of Judgments of the Hon’ble
Supreme Court on this aspect, about which we will make reference herein below.

“Justice must be the first virtue of the law of sentencing. A sentencing
Court must consider itself to be a “forum of principle”. The central idea of
such a forum is its continuing commitment to inhere a doctrinal approach around
a core normative idea. “Principled reasoning” flowing from judicial precedent or
legislation is the premise from which the Courts derive the power. The movement
to preserve substantial judicial discretion to individualize sentences within a
range of punishments also has its basis in the Court’s ability to give
principled reasoning.”

118. This is what has been said by the Hon’ble Mr.Justice S.B.SINHA, while
speaking for the Bench in Santhosh Kumar Satishbhushan Bariyar v. State of
Maharashtra reported in 2009 (2) SCC (Crl) 1150. In the said Judgment, the
Hon’ble Supreme Court has made a thorough analysis of the “rarest of rare
dictum”, evolved by the Constitution Bench of the Hon’ble Supreme Court in
Bachan Singh’s case. As has been held in Bachan Singh’s case, for the purpose of
imposing appropriate sentence to meet the ends of justice, the Court should take
up the responsibility of collecting enough information, which are relevant for
the purpose of objectively inform the selection of the penalty. It is absolutely
necessary for the Court to gather the nature, motive, impact of crime,
culpability of convict, age of the offender, chance of reforming him, family
circumstances of the offender, socio-economic background of the offender, etc.,
and on making a complete examination of all the above relevant factors, the
Courts are required to decide about the quantum of punishment, more
particularly, when the Court is called upon to decide the quantum of punishment
in respect of the offences, where capital punishment of death could be imposed.
Bachan Singh’s case mandates a “principled sentencing” and not “Judge-centric
sentencing”. While selecting the sentence, the personal opinion or unguided use
of discretion by Judges in the bench etc., have got no role to play.

119. On analyzing all the above, if the Court has got “special reasons” to
record so as to hold that the crime falls within the “rarest of rare dictum”,
then, it will be lawful for the Court to impose death penalty. While doing so,
the decision of the Court should conform to the highest standards of the
judicial rigor. Not only the aggravating circumstances, but the mitigating
circumstances relating to the crime and criminal should also be taken into
account. As has been held in Bachan Singh’s, case, in Paragraph No.161, “special
reasons” obviously means “exceptional reasons” founded on the exceptionally
grave circumstances of the particular case relating to the crime as well as the
criminal. While doing so, the Court should also examine as to whether the
alternative option has been foreclosed. In other words, as per Bachan Singh’s,
case, the selection of death punishment shall be the last resort when the
alternative punishment of life imprisonment will be futile and will serve no
purpose. These safeguards have been pointed out by the Hon’ble Supreme Court
repeatedly, because, death sentence is unique in its total irrevocability.

120. In Machhi Singh vs. State of Punjab reported in 1983 (3) SCC 470 :
1983 (Crl) 280, the Hon’ble Supreme Court had elaborately considered Bachan
Singh’s, principles. In Paragraph Nos.32 to 37 of the Judgment, the Hon’ble
Supreme Court has elicited certain kinds of murders, which fall within the
rarest of rare dictum, which are as follows:-
“32. ? It may do so ‘in rarest of rare cases’ when its collective
conscience is so shocked that it will expect the holders of the judicial power
centre to inflict death penalty irrespective of their personal opinion as
regards desirability or otherwise of retaining death penalty. The community may
entertain such a sentiment when the crime is viewed from the platform of the
motive for, or the manner of commission of the crime, or the anti-social or
abhorrent nature of the crime, such as for instance:
I. Manner of commission of murder
33. When the murder is committed in an extremely brutal, grotesque, diabolical,
revolting or dastardly manner so as to arouse intense and extreme indignation of
the community. For instance,
(i) when the house of the victim is set aflame with the end in view to roast him
alive in the house.
(ii) when the victim is subjected to inhuman acts of torture or cruelty in order
to bring about his or her death.
(iii) when the body of the victim is cut into pieces or his body is dismembered
in a fiendish manner.
II. Motive for commission of murder
34. When the murder is committed for a motive which evinces total
depravity and meanness. For instance when (a) a hired assassin commits murder
for the sake of money or reward (b) a cold-blooded murder is committed with a
deliberate design in order to inherit property or to gain control over property
of a ward or a person under the control of the murderer or vis-.-vis whom the
murderer is in a dominating position or in a position of trust, or (c) a murder
is committed in the course of betrayal of the motherland.
III. Anti-social or socially abhorrent nature of the crime
35. (a) When murder of a member of a Scheduled Caste or minority
community, etc. is committed not for personal reasons but in circumstances which
arouse social wrath. For instance when such a crime is committed in order to
terrorise such persons and frighten them into fleeing from a place or in order
to deprive them of, or make them surrender, lands or benefits conferred on them
with a view to reverse past injustices and in order to restore the social
balance.
(b) In cases of ‘bride burning’ and what are known as ‘dowry deaths’ or
when murder is committed in order to remarry for the sake of extracting dowry
once again or to marry another woman on account of infatuation.
IV. Magnitude of crime.
36. When the crime is enormous in proportion. For instance when multiple
murders say of all or almost all the members of a family or a large number of
persons of a particular caste, community, or locality, are committed.
V. Personality of victim of murder.
37. When the victim of murder is (a) an innocent child who could not have
or has not provided even an excuse, much less a provocation, for murder (b) a
helpless woman or a person rendered helpless by old age or infirmity (c) when
the victim is a person vis-.-vis whom the murderer is in a position of
domination or trust (d) when the victim is a public figure generally loved and
respected by the community for the services rendered by him and the murder is
committed for political or similar reasons other than personal reasons.”

121. Very recently, in Swamy Shraddananda (2) vs. State of Karnataka
reported in 2009 (3) SCC (Crl) 113, a three Judges Bench of the Hon’ble Supreme
Court had an occasion to consider the above categories of murders enumerated few
decades ago, in Machhi Singh’s case. In Paragraph No.43 of the said Judgment,
the Hon’ble Supreme Court has observed as follows:-
“A careful reading of the Machhi Singh1 categories will make it clear that
the classification was made looking at murder mainly as an act of maladjusted
individual criminal(s). In 1983 the country was relatively free from organised
and professional crime. Abduction for ransom and gang rape and murders committed
in the course of those offences were yet to become a menace for the society
compelling the legislature to create special slots for those offences in the
Penal Code. At the time of Machhi Singh1, Delhi had not witnessed the infamous
Sikh carnage. There was no attack on the country’s Parliament. There were no
bombs planted by terrorists killing completely innocent people, men, women and
children in dozens with sickening frequency. There were no private armies. There
were no mafia cornering huge government contracts purely by muscle power. There
were no reports of killings of social activists and “whistle-blowers”. There
were no reports of custodial deaths and rape and fake encounters by police or
even by armed forces. These developments would unquestionably find a more
pronounced reflection in any classification if one were to be made today.
Relying upon the observations in Bachan Singh2, therefore, we respectfully wish
to say that even though the categories framed in Machhi Singh1 provide very
useful guidelines, nonetheless those cannot be taken as inflexible, absolute or
immutable. Further, even in those categories, there would be scope for
flexibility as observed in Bachan Singh2 itself.”

122. Keeping the above broad principles in respect of the rarest of rare
dictum laid down by the Hon’ble Supreme Court, let us now go in to the facts of
the present case. The offence of murder committed by these accused falls under
more than one category, as enumerated in Paragraph Nos.32 to 37 of the Judgment
in Machhi Singh’s case. It is a case of multiple murder where two members of the
family including the watchman have been done to death in a brutal manner for
gain. D-1 – Malik Mohammed was a Padmashri Awardee. As we have narrated in the
earlier paragraph, he was the Vice Chancellor of a reputed University and he was
also an advisor to the Central Government holding the post at Secretary level.
He had headed an important commission nominated by the Central Government. He
had created number of P.hd holders. He was such a great public figour and thus,
his murder falls within the category mentioned in Paragraph No.37 of Machhi
Singh’s case. Having evaluated the entire facts and circumstances of the case,
on the touchstone of Bachan Singh and Machhi Singh’s case etc., we hold that
there can be no doubt that the entire occurrence resulting in the murders of D-1
to D-3 will fall within the rarest of rare dictum, and so, the accused can be
visited with death penalty. Even though we have found that these three murders
committed by these two accused fall within the ambit of rarest of rare dictum,
still, we feel reluctant to impose death penalty on these accused, in view of
the nature of the evidence let in by the prosecution upon which we have found
these accused guilty. In this regard, we may usefully refer to the Judgment of
the Hon’ble Supreme Court in Aloke Nath Dutta v. State of West Bengal reported
in 2007 (12) SCC 230 : 2008 (2) SCC 264, wherein the Hon’ble Supreme Court has
held that normally, in a case based on circumstantial evidence, death sentence
may not be awarded to the accused. The said case came up for consideration in
Swamy Shraddananda (2)’s case, wherein in Paragraph No.49, the Hon’ble Supreme
Court has held as follows:-
“49. In Aloke Nath Dutta v. State of W.B. Sinha, J. gave some very good
illustrations from a number of recent decisions in which on similar facts this
Court took contrary views on giving death penalty to the convict (see SCC pp.
279-87, paras 151-78 : Scale pp. 504-10, paras 154-82). He finally observed (SCC
para 158) that “courts in the matter of sentencing act differently although the
fact situation may appear to be somewhat similar” and further “it is evident
that different Benches had taken different view in the matter” (SCC para 168).
Katju, J. in his order passed in this appeal said that he did not agree with the
decision in Aloke Nath Dutta6 in that it held that death sentence was not to be
awarded in a case of circumstantial evidence. Katju, J. may be right that there
cannot be an absolute rule excluding death sentence in all cases of
circumstantial evidence (though in Aloke Nath Dutta6 it is said “normally” and
not as an absolute rule). But there is no denying the illustrations cited by
Sinha, J. which are a matter of fact.”

123. Swamy Shraddananda (2) case came to be considered by the Hon’ble
Supreme Court in Rameshbhai Chandubhai Rathod (1) Vs. State of Gujarat reported
in 2009 (5) SCC 740. In that case, the main question was whether the fact that
the conviction is based on circumstantial evidence is one of the mitigating
circumstances, so as to avoid to impose that sentence. There were conflicting
views expressed by the Hon’ble Judges in the Bench. Hon’ble Dr.Justice Arijit
Pasayat held in paragraph 30 as follows:
” 30. The plea that in a case of circumstantial evidence death should not be
awarded is without any logic. If the circumstantial evidence is found to be of
unimpeachable character in establishing the guilt of the accused, that forms the
foundation for conviction. That has nothing to do with the question of sentence
as has been observed by this Court in various cases while awarding death
sentence. The mitigating circumstances and the aggravating circumstances have to
be balanced. In the balance sheet of such circumstances, the fact that the case
rests on circumstantial evidence has no role to play. In fact in most of the
cases where death sentence is awarded for rape and murder and the like, there is
practically no scope for having an eyewitness. They are not committed in the
public view. By the very nature of things in such cases, the available evidence
is circumstantial evidence. If the said evidence has been found to be credible,
cogent and trustworthy for the purpose of recording conviction, to treat that
evidence as a mitigating circumstance, would amount to consideration of an
irrelevant aspect. The plea of learned counsel for the appellant that the
conviction is based on circumstantial evidence and, therefore, the death
sentence should not be awarded is clearly unsustainable.”

124. Disagreeing with the same, Hon’ble Mr.Justice A.K.Ganguly held that as
there was some uncertainty with the nature of circumstantial evidence and that
the mitigating circumstances, particularly the young age of the appellant and
the possibility that he could be rehabilitated and would not commit any offence
later on could not be ruled out, and that the statutory obligation cast on the
Trial Court under Section 235(2) r/w Section 354 (3) of the Code of Criminal
Procedure, had been violated inasmuch as that the accused had not been given
adequate opportunity to plead on the question of sentence and also citing the
large number of cases including those of rape and murder of young children,
opined that the sentence of life imprisonment was a proper one.

125. The matter was, therefore, referred to a Full Bench consisting of
Hon’ble Justices H.S.Bedi, P.Sathasivam & C.K.Prasad JJ. Their Lordships’ by
Judgement dated 24.01.2011, in Rameshbhai Chandubhai Rathod (2) Vs. State of
Gujarat reported in (2011) 2 SCC 764 has held in paragraph 10 has follows:
“10. We are, therefore, of the opinion that in the light of the findings
recorded by Ganguly, J. it would not be proper to maintain the death sentence on
the appellant. At the same time the gravity of the offence, the behaviour of the
appellant and the fear and concern such incidents generate in ordered society,
cannot be ignored. We, therefore, feel that a via media ought to be adopted in
the light of the judgments of this Court in Ramraj v. State of Chhattisgarh4 and
Mulla v. State of U.P.5 In these two cases, this Court has held that the term
“imprisonment for life” which is found in Section 302 IPC, would mean
imprisonment for the natural life of the convict subject to the powers of the
President and the Governor under Articles 72 and 161 of the Constitution of
India or of the State Government under Section 433-A of the Code of Criminal
Procedure.”

126. In the case on hand also, as we have discussed at various stages of
this Judgment, with the nature of the circumstantial evidences, upon which we
have found these accused guilty, and in the light of the view expressed in Aloke
Nath Dutta’s case, which was approved in Swamy Shraddananda (2)’s case and
Rameshbhai Chandubhai Rathod (2)’s case, cited supra, we are of the considered
view that it will not be safe to impose extreme penalty of death sentence on
these accused. In our considered view, imposition of life sentence which is
alternative to death sentence, will be the appropriate sentence.

127. The Trial Court has directed that the sentences to run consecutively.
We are inclined to confirm the same. In Swamy Shraddananda (2)’s case, in
Paragraph No.94, the Hon’ble Supreme Court has directed as follows:-
“In the light of the discussions made above, we are clearly of the view
that there is a good and strong basis for the Court to substitute a death
sentence by life imprisonment or by a term in excess of fourteen years and
further to direct that the convict must not be released from the prison for the
rest of his life or for the actual term as specified in the order, as the case
may be.” [emphasis supplied].

Similar view has been taken in Rameshbhai Chandubhai Rathod (2)’s case, cited
supra.

128. In the instant case also, we are inclined to issue such a direction
that these accused shall not be released from prison for the rest of their
lives.

129. In the result,
(1). The Criminal Appeal (MD).No.411 of 2009 is partly allowed in the following
terms:-
(a). The conviction and sentence imposed on Gopi @ Sahaya Puruno [Accused
in S.C.No.97 of 2008] under Section 120(B) of the Indian Penal Code is set aside
and he is acquitted of the said charge.
(b). The conviction and the sentence imposed on Gopi @ Sahaya Puruno
[Accused in S.C.No.97 of 2008] under Sections 449, 302 [three counts], 392, 201
and 364 of the Indian Penal Code are confirmed.
(c). We confirm the direction of the Trial Court in S.C.No.97 of 2008 that
the sentences shall run consecutively.
(e). we further direct that the accused – Gopi @ Sahaya Puruno [Accused in
S.C.No.97 of 2008] shall not be released from prison for the rest of his life.

(ii).Crl.A.(MD).No.349 of 2010 is partly allowed in the following terms:-
(a). The conviction and sentence imposed on Anbarasu [Accused in S.C.No.94
of 2009] under Section 120(B) and Section 485 of the Indian Penal Code are set
aside and he is acquitted of the said charges.
(b). The conviction and sentence imposed on the appellant – Anbarasu
[accused in S.C.No.94 of 2009] for the offences under Sections 449, 302 [two
counts- charges 3 and 4], 392, 364 and 201 of the Indian Penal Code are
confirmed.
(c). The sentence of death imposed on the appellant – Anbararu [ accused
in S.C.No.94 of 2009] for the offence under Section 302 of the Indian Penal Code
[under Charge No.10] is modified and instead, he shall undergo imprisonment for
life and to pay a fine of Rs.15,000/- [Rupees Fifteen Thousand], in default to
undergo rigorous imprisonment for six months.
(d). We confirm the direction of the Trial Court in S.C.No.94 of 2009 that
the sentences shall run consecutively.
(d). We further direct that Anbarasu [accused in S.C.No.94 of 2009] shall
not be released from prison for the rest of his life.
(iii). Referred Trial (MD).No.1 of 2010 is answered accordingly.
(iv). The Suo motu Criminal Revision Case (MD).Nos.201 and 963 of 2011 are
closed.

NB

To
1.The Sessions Judge, Kanyakumari Division at Nagercoil.

2.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

3.The Inspector of Police,
Nesamony Nagar Police Station,
Kanyakumari District.

4.The Deputy Superintendent of Police,
Nagercoil, Nesamoni Police Station,
Kanyakumari District.

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