VELANKANNI ALIAS VELUALIASVELANKANNIRAJ Vs. STATE

JUDGEMENT

(1.) THIS appeal challenges a judgment of the Additional Sessions Division, FTC No.III, Coimbatore, made in S.C.No.241 of 2004 whereby the appellant herein who is shown as A-2, along with four others stood charged, tried, found guilty and awarded the punishments as follows: ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-4 302 IPC (two counts) Guilty Double life imprisonment A-1 to A-4 392 IPC Guilty 7 years RI along with a fine of Rs.1000/- and default sentence A-1 201 IPC Guilty 7 years RI along with a fine of Rs.1000/- and default sentence A-5 201 r/w 109 r/w 302 & 392 IPC Guilty under Sec.302 IPC 392, 201 & 109 IPC Double life imprisonment 7 years RI along with a fine of Rs.1000/- and default sentence

(2.) THE short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the cousin, and P.W.2 is the son of the first deceased (D1) Velusamy and the second deceased (D2) Rajalakshmi. P.W.3 is the sister of D2. P.W.5 is the niece of D2. THE elderly couple in their 60's were residing in Door No.217, Ganapathy Sakthi Road, Coimbatore, within the jurisdiction of the respondent police. Both of them were in their house on the day hours of 20.4.2003. P.W.1 who used to make a casual visit to their house since they were under ailment, came to their house at about 6.30 P.M. on that day, and he found the door closed, but not locked. He opened the door and got inside, but either of the deceased was not found. THEn he climbed the upstairs and there also they were not found. When he was descending, he found bloodstains which led him to the place where the dead body of D1 Velusamy was found. THEn he went to the next room where he found the dead body of D2 Rajalakshmi. Immediately he phoned over to his brother P.W.4, and it was also informed to the relatives. THEn, P.W.1 proceeded to the respondent police station and gave Ex.P1, the report, on the strength of which, a case came to be registered by P.W.18, the Sub Inspector of Police, in Crime No.150/2003 under Sections 302 and 380 of IPC. THE printed FIR, Ex.P41, was despatched to the Court. (b) P.W.20, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3, and also a rough sketch, Ex.P43. THEn he conducted inquest on both the dead bodies in the presence of witnesses and panchayatdars and prepared two inquest reports, Exs.P44 and P45 respectively. After the inquest was over, the dead bodies were sent to the Government Hospital for the purpose of autopsy. (c) P.W.11, the Tutor in Forensic Medicine, Coimbatore Medical College Hospital, on receipt of the requisition, has conducted autopsy on the dead body of D1 Velusamy and has issued a postmortem certificate, Ex.P11, with his opinion that the deceased would appear to have died of haemorrhage and shock due to cut injury in the neck. (d) Equally P.W.11, the same Medical Person, on receipt of the requisition, has conducted autopsy on the dead body of D2 Rajalakshmi and has issued a postmortem certificate, Ex.P14, with his opinion that the deceased would appear to have died of haemorrhage and shock due to cut injury in the neck. THE final opinion is marked as Exs.P16 and P17 respectively. (e) Following the same, P.W.2 who went to the house, found Ex.P3, a chit, and he handed over the same to the Investigator. P.W.2, the son, after making a search in the house and finding the bureau opened, gave a list of articles which were found missing including cash, namely M.Os.1 & 2, wrist watches, M.O.3, golden bangles, M.O.4, currency notes worth Rs.22200/- and M.O.22, ring. THE Investigation was on. (f) On 22.4.2003, P.W.20 received Ex.P2 papers from P.W.2 in form 95. THEn he proceeded with the investigation in that line, entertaining suspicion. On 27.4.2003, P.W.20 arrested A-4, and he came forward to give a confessional statement voluntarily, and the same was recorded. THE admissible part is marked as Ex.P7, following which M.O.3, golden bangles, were recovered from him. Equally, A-1 and A-5 were arrested on 30.4.2003. THEy came forward to give confessional statements, which were recorded. THE admissible parts are marked as Exs.P18 and P19 respectively. THEreafter, A-3 was arrested on 1.5.2003, when he gave a confessional statement voluntarily. THE admissible part is marked as Ex.P26, pursuant to which the material objects were recovered from him. (g) On 2.5.2003, the appellant/A-2 was arrested, and he gave a confessional statement. THE admissible part is Ex.P23. He also produced M.O.1, Titan wrist watch, M.O.22, golden ring, M.O.23, cash of Rs.8150/- (a portion of M.O.4 series), and M.O.24, bloodstained shirt, M.O.25, bloodstained pant, and also M.O.26, hacksaw blade. THEy were all recovered under a cover of mahazar. (h) Pending investigation, a requisition was put forth before the Chief Judicial Magistrate for the identification of the accused. P.W.6 was taken for the test identification parade, and he also identified all the accused persons in the identification parade. THE test identification parade proceedings are marked as Ex.P40. (i) All the material objects recovered from the place of occurrence and from the dead body were subjected to chemical analysis, which resulted in Ex.P30, the chemical analyst's report, and Ex.P31, the serologist's report. On completion of the investigation, the Investigator filed the final report.

(3.) ADDED further the learned Counsel that the second circumstance mainly relied on by the prosecution was the recovery of some of the material objects from A-2 pursuant to the alleged confessional statement. Attacking that part of the evidence put forth by the prosecution before the trial Court, the learned Counsel would submit that as far as the evidence of P.W.6 is concerned, the trial Court should have rejected the evidence for more reasons than one that it is claimed by P.W.6 that he was actually carrying on a tea stall in front of the house of the deceased but the occurrence has taken place at about 4.00 P.M. on 20.4.2003 that it is a matter of surprise to note that he has deposed before the trial Court that he came to know about the same in the next morning through newspaper, and he was also interrogated by the Police Officer only on 23.4.2003, and his statement has reached the Court only on 25.4.2003 that if really he was carrying on a tea stall just in front of the house of the deceased, one would expect that a reasonable conduct of a person would be to immediately inform the Investigator that he saw all the accused persons in the house of the deceased at or about the time but, he has not done so, and hence the last seen theory that the deceased were in the company of the accused, therefore, could not be believed.