HAMEEM Vs. STATE

JUDGEMENT

(1.) Challenging a judgment of the Additional Sessions Judge / Essential Commodities Act Special Judge, Thanjavur in S.C.No.499 of 2008 dated 16.12.2009, whereby the appellant / first accused stood charged, tried, found guilty and awarded punishments as under, the present Criminal Appeal has been filed. Accused Charges Finding Punishment under Section A1 420 IPC Not found guilty - A1 120-B IPC Found guilty A1 was sentenced to undergo 7 years R.I. and to pay a fine of Rs.1000/- in default to undergo 1 year R.I. A1 302 IPC Found guilty A1 was sentenced to undergo life imprisonment and to pay a fine of Rs.1000/- in default to undergo 1 year R.I. A1 380 IPC Found guilty A1 was sentenced to undergo 2 years R.I. and to pay a fine of Rs.1000/- in default to undergo 1 year R.I. A1 302 r/w 201 IPC Found guilty A1 was sentenced to undergo 7 years R.I. under Section and to pay a fine of Rs.1000/- in 201r/w 302 IPC default to undergo 1 year R.I.

(2.) Originally, there were two accused in this case, namely, the appellant and one Indira @ Ameena Beevi. Pending the investigation, the second accused died. Therefore, the Trial Court recorded a finding that the charges framed against her stand abated, and proceeded with the trial against the appellant / first accused.

(3.) The short facts that are necessary for the disposal of this appeal can be stated thus:- a) P.W.1-Swaminathan is the husband of the deceased-Visalakshi. They were residing at 6th Cross Street, LIC Colony. P.W.1 was employed in a hospital at Tiruvarur, during the relevant time. He used to visit his wife fort-night once. The deceased was doing money-lending business. The first accused-Hameem is the husband of the second accused-Indira @ Ameena Beevi. The accused have borrowed a sum of Rs.2,50,000/- from the deceased on executing promissory notes and also issuing post-dated cheques. This transaction was not known to P.W.1. On the date of occurrence, that was on 03.08.2004, P.W.5-Auto driver took the deceased in his auto to the house of the accused and dropped her. P.W.6, who was employed under the accused, found the deceased in the company of the accused, on that day during day hours. On the night hours of 03.08.2004, P.W.8-Van driver was engaged by A1 and A2 to take them to Karur. After engaging the van, they took 2 Nos. of trunk boxes and also took their children. When the van was just crossing a bridge near Pettavaithalai, A1 made a request to P.W.8 to stop the van, since his wife-A2 was to attend the nature's call. Thereafter the van was stopped and after ten minutes, they boarded the van and they informed that they have got some work at Coimbatore and hence they wanted to get down from the van. b) P.W.1 phoned up to his wife on the night hours of 03.08.2004. There was no reply and the phone call was not attended. He also phoned up to his house on 04.08.2004 both in the morning and night hours. Since the phone calls were not attended, on 05.08.2004, he informed his friend Ravi to go to his house and verify. On 07.08.2004, P.W.3-Narasimma, who was residing in the neighbouring house, found certain utensils remained uncleaned on the backyard of the house of the deceased. Therefore, he phoned over to P.W.1 and informed the same. P.W.1, thereafter, came to his house which was locked. He proceeded to Thanjavur South Police Station, where P.W.2-Head Constable, was on duty. P.W.1 gave a complaint to P.W.2 at about 22.15 hours on 07.08.2004 and the same has been marked as Ex.P1. On the strength of Ex.P1, a case came to be registered in Crime No.218 of 2004 for "women missing" and Ex.P2-F.I.R. was prepared and sent to the Court. c) P.W.14 was working as Village Administrative Officer (VAO) at Pettavaithalai at the relevant time. On 05.08.2004, he was informed by his Assistants that a dead body of a female was lying in a field near the bridge at Pettavaithalai. Based on the same, P.W.14 went to the place where the dead body was found and prepared Ex.P9-Report and gave the same to Pettavaithalai Police Station, on the strength of which, a case came to be registered in Crime No.333 of 2004 under Section 174 of the Code. Ex.P5-Express F.I.R. was despatched to the Court. d) P.W.26, who was the Inspector of Police, Jeeyapuram Police Station, at that time, on receipt of a copy of F.I.R., proceeded to the spot, made an inspection and prepared Ex.P10-Observation Mahazar and also Ex.P20-Rough Sketch. He also recovered ordinary earth from the spot under a cover of Ex.P11-Seizure Mahazar. On instructions from P.W.28, P.W.12-Circle Inspector of Police, Jeeyapuram Police Station conducted inquest over the dead body of the deceased and prepared Ex.P6-Inquest Report. He sent the dead body to the Government Hospital, Trichirapalli for conducting autopsy under a requisition marked as Ex.P7. e) P.W.36-the Doctor attached to the Government Hospital, Trichirapalli, conducted autopsy on the body of the deceased and gave his opinion under Ex.P30- Post Mortem Certificate, that the death of the deceased was due to asphyxia due to smothering. Thereafter, P.W.37-Inspector of Police, Jeeyapuram Police Station, filed final report under Ex.P33, since the case could not be detected. f) While the matter stood thus, P.W.38-Deputy Superintendent of Police, Thanjavur took up the matter for investigation on 20.01.2007. He sent the photograph of the deceased to the Forensic Science Department and thereafter, a report was received from the Department stating that a Superimposition Test was conducted in which the skull of the dead body received in respect of Crime No.333 of 2004 tallies with that of the photograph sent by P.W.38. On coming to know about this, P.W.38 enquired the witnesses and altered the case to Section 302 IPC. He proceeded to the house of the deceased and prepared Ex.P34-Rough Sketch. On 17.05.2007 he arrested the first accused. The first accused came forward to give a confessional statement. Ex.P35 is the admissible portion of the confessional statement of the first accused. On the basis of the confessional statement given by the first accused, P.W.38 went to a house which was shown by the first accused, and prepared Ex.P26-Observation Mahazar and Exs.P36 and P37-Rough sketches. Then he recorded the statement of the van driver. Thereafter, he recovered M.O.1-Van in the presence of witnesses. Thereafter, the first accused took the police party to P.Ws.25 and 28 from whom M.O.1-Gold chain with dollar, was recovered under a cover of Ex.P28-Seizure Mahazar. Ex.P19-Pledge receipt was also recovered thereafter. Ex.P29-Cheques were also recovered under a cover of Ex.P27-Seizure Mahazar. g) P.W.7 in his evidence has stated that the second accused gave a confessional statement to him on 30.12.2005 that on 03.08.2004, she joined with her husband and caused the death of the deceased by pressing a pillow on the face of the deceased and then put the dead body in a suit case and took it in an omni van and dropped the same on the Karur Road. h) After completion of the investigation, on 03.08.2007, P.W.38 filed the charge sheet as against the first accused before the concerned court, which in turn committed the case to the Court of sessions and necessary charges were framed. i) In order to substantiate the charges, at the time of trial, the prosecution examined 38 witnesses and relied on 38 exhibits and 4 material objects. On the side of the defence, D.W.1 and D.W.2 were examined and Ex.D1 to D3 were marked. On completion of the evidence adduced on the side of the prosecution, the first accused was questioned under Section 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. He denied them as false. After hearing the arguments of the counsel and looking into the available materials, the Trial Court took the view that the prosecution has proved the case beyond reasonable doubt, and awarded the punishments as referred to above. Hence, this Criminal Appeal at the instance of the first accused / appellant.