IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.JAICHANDREN AND S.NAGAMUTHU, JJ.
Gangadaran and Ors. – Appellant
Vs
State by The Inspector of Police – Respondents
CRL.A.No.120/2011
Decided On : 03-03-2016
Indian Penal Code,1860 - Section 302 - First Information Report - Postmortem Certificate - Death - Offence of Murder - On all three accused came in a Motor Cycle to house of deceased - Family of deceased was already very closely known to accused - At that time had gone out and he was not available in his house - P.W.3 and P.W.4 had gone to house of their neighbour P.W.2 to watch television there – Thus at about on day of occurrence in house deceased was alone with her child P.W.6 who was hardly aged years at that time - On reaching house of deceased accused wanted accused to take child in his motorcycle and make a jolly round so as to keep the child away from house - Accordingly accused took P.W.6 in Motor Cycle and went away - After making a round when he returned accused again wanted him to make another round - Held, Learned Counsel for appellant would further submit that P.W.1 has admitted during cross-examination that a chain was found hanging in the house. Referring to same he would submit that therefore story that chain was pledged with P.W.17 cannot be true – But Court do not find any evidence to fact that what was hanging was M.O.1 - During cross-examination P.W.1 has stated that a gold chain was hanging in house - He has also stated that the accused had taken away Chain leaving behind with two gold balls which had fallen there other witness P.W.24 has stated that he only sold said chain to father of deceased - All these evidences cumulatively would go to prove fact that M.O.1 belonged to deceased and the same was worn by her lastly and same was stolen away from her – Since in this case murder and removal of Chain from the neck of deceased had taken place in one and same occurrence as per Section 114 of Indian Evidence Act court have to presume that it was this accused who caused death of deceased - Appeal stands Dismissed
S.NAGAMUTHU, J.
The appellants are the accused 1 and 2 in S.C.No.220 of 2005 on the file of the learned Additional Sessions Judge, Fast Track Court No.II, Salem. There was yet another accused, namely, Mubarak Ali, who was arrayed as the third accused. The appellants/accused 1 and 2 stood charged for an offence under Section 302 of IPC whereas the 3rd accused stood charged for an offence under Section 302 read with 34 of IPC. Further, the first accused stood charged for an offence under Section 380 of IPC whereas the accused 2 and 3 stood charged for an offence under Section 380 read with 34 of IPC. By judgment dated 12.10.2010, the trial court convicted the accused 1 and 2 for the offence under Section 302 of IPC and sentenced the accused 1 and 2/appellants 1 and 2 to undergo imprisonment for life and to pay a fine of Rs.100/-, in default, to undergo rigorous imprisonment for 3 months. The trial court convicted the 3rd accused under Section 302 read with 34 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.100/-, in default, to undergo rigorous imprisonment for 3 months. For the offence under Section 380 of IPC, the trial court sentenced the 1st appellant/1st accused to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.100/-in default, to undergo rigorous imprisonment for 3 months. The trial court convicted the accused 2 and 3 under Section 380 read with 34 of IPC and sentenced them to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.100/-, in default, to undergo rigorous imprisonment for 3 months. Challenging the said conviction and sentence, the appellants 1 and 2/Accused 1 and 2 are before this Court with this appeal.
2. The case of the prosecution in brief, is as follows:-
(a) The deceased in this case was one Kaladevi. P.W.1 is her husband and P.W.6 is her child. P.Ws.3 and 4 are the parents of P.W.1. All of them were living in their house at Narasinghapuram Therku Kadu Village. The accused 1 and 3 were earlier doing some business in which they sustained huge loss. Thus, the accused 1 and 3 were in need of money. Therefore, it is alleged that the accused 1 and 3 along with the 2nd accused had decided to commit theft at the house of the deceased.
(b) On 26.08.2003 at about 6.00 p.m., all the three accused came in a Motor Cycle to the house of the deceased. The family of the deceased was already very closely known to the 1st accused. At that time, P.W.1 had gone out and he was not available in his house. P.W.3 and P.W.4 had gone to the house of their neighbour, namely, P.W.2, to watch television there. Thus, at about 06.00 p.m., on the day of occurrence, in the house, the deceased was alone with her child P.W.6, who was hardly aged 7 years at that time. On reaching the house of the deceased, the 1st accused wanted the 3rd accused to take the child in his motorcycle and make a jolly round so as to keep the child away from the house. Accordingly, the 3rd accused took P.W.6 in the Motor Cycle and went away. After making a round, when he returned, the 1st accused again wanted him to make another round. Thus, the 3rd accused took the child again out. Thus, they made it a point that the deceased alone was there in the house and there was nobodyelse.
(c) Thus, the accused 1 and 2 entered into the house of the deceased. They strangulated the deceased by using a cotton rope. They also attacked the deceased on her head and face with wooden logs. The deceased died on the spot. After killing her, they took away the Thali Chain from the neck of the deceased. After finishing the task, the accused 1 and 2 were waiting outside the house. The 3rd accused returned with P.W.6. The 1st accused told P.W.6 not to disturb his mother and further told him that the deceased was sleeping. After leaving the child P.W.6, at the house of the deceased, all the three accused fled away from the scene of occurrence.
(d) P.W.6, entered into the house and to his shock, he found his moth
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