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2016 Supreme(Mad) 3524
IN THE MADRAS HIGH COURT
M. Jaichandren, S. Nagamuthu, JJ.
Mari @ Muthu @ Marimuthu – Appellant
Versus
State rep. by The Inspector of Police, E-5 Pattinapakkam Police Station, Chennai – Respondent
Criminal Appeal No.333 of 2013 & Crl. R.C. No.1034 of 2013
Decided On : 11-04-2016
For the Petitioner: Mr. A. Natarajan, Mr. R. Gopinath
For the Respondent: Mr. N. Baaskaran, Mr. M. Maharaja
Headnote:
Indian Penal Code, 1860 - Sections 302 and 380 – Criminal Produce Code, 1973 - Section 313 – Criminal Trial – Offence of Theft in dwelling house, etc and Murder – Appeal against Conviction - Deceased was a young woman aged 28 years - She was married to P.W.2 and she had a female child and was living at with her husband and her child - She was an employee of Bank of America - P.W.2, her husband was working as a Manager in "Shell India Limited" in Chennai - P.W.1 is sister of deceased who was residing in Kilpauk, Chennai - P.Ws.3 and 4, her mother and father respectively were residing in Mandaveli - P.W.8 was constructing a house by side of house of deceased - P.W.9 P.W.1, sister of deceased, received a phone call from office of deceased that deceased had not turned up for work and her cell phone was in switch off mode. P.W.1 immediately went to house of deceased - P.W.1 went up to open terrace of house through the stairs situated by the side of house but deceased was not there - P.W.1 spoke to P.W.3 over phone she also rushed to house of deceased - P.W.1 also noticed that jewels which deceased wore usually were found missing - P.W.1, with help of others, immediately took deceased in an auto and rushed her to Isabel Hospital. P.W.12, Dr. examined deceased and declared her already dead - Held, Accused would not have thought of taking all valuable properties from house - Thus, in absence of any explanation from accused as to how his fingerprints had gone to bedroom of house of deceased, presumption is that he had visited place of occurrence inside bedroom of house of deceased and coupled with other evidences, it is presumable that accused had committed murder of deceased and had stolen away M.O.4 series and M.O.5 - It is true - Had this been done, there would have been more scientific proof of crime - But, failure on part of investigating officer to collect these details would not in any manner weaken other clinching evidences available to establish guilt of accused - In view of foregoing discussion, we hold that prosecution has proved guilt of accused beyond reasonable doubts and thus trial Court was right in convicting accused under Sections 302 and 380 I.P.C - As a matter of fact, accused should have been convicted for robbery, since there was no charge framed for robbery, court are not able to convert conviction from theft to robbery - Turning to quantum of punishment, trial Court has imposed only a minimum punishment which does not require any interference - Appeal dismissed.
S. Nagamuthu, J.
The appellant, the sole accused in S.C.No.380 of 2011, on the file of the VI Additional Sessions Judge, Chennai, who stands convicted and sentenced for offence under Sections 302 and 380 I.P.C., has come up with this criminal appeal. By judgment dated 06.02.2013, the trial Court has sentenced him to undergo imprisonment for life (no fine was imposed) for the offence under Section 302 I.P.C. and to undergo rigorous imprisonment for three years for the offence under Section 380 I.P.C.
2. The case of the prosecution in brief is as follows:
2.1. The deceased in this case was one Mrs. Nachaal a young woman aged 28 years. She was married to P.W.2 and she had a female child by name "Madhura Valliammai". She was living at 11/7, Vedachalam Garden Street, I Floor, Mandaiveli, Chennai, with her husband and her child. She was an employee of Bank of America. P.W.2, her husband was working as a Manager in "Shell India Limited" in Chennai. P.W.1 is the sister of the deceased who was residing in Kilpauk, Chennai. P.Ws.3 and 4, her mother and father respectively were residing in Mandaveli. P.W.8 Mr. Pugazhendhi was constructing a house by the side of the house of the deceased. P.W.9 was the contractor who was constructing the said building on behalf of P.W.8. P.W.5 was a cook at the house of the deceased and P.W.6 was a maid servant.
2.2. P.W.2 and the deceased used go for work in the morning to their respective offices. On 15.07.2011, at about 09.00 a.m. P.W.2 left for his office as usual. It was the usual practise of the deceased to leave the child in the play school situated somewhere near the house of the deceased and then to go to her office for work. On 15.07.2011, at 09.00 a.m. when P.W.2 left for his office, the deceased was in the house with the child. After he had left, the child was left in the school. Thus, in the house, the deceased alone was there. P.W.5 the cook finished her work at about 10.15 a.m. and left the house of the deceased. P.W.6 the maid servant at the house of the deceased also finished her work and left the house of the deceased between 10.00 a.m. and 10.30 a.m. Thus, after 10.30 a.m. the deceased alone remained in her house.
2.3. Around 3.30 p.m. on the same day, P.W.1, the sister of the deceased, received a phone call from the office of the deceased that the deceased had not turned up for work and her cell phone was in the switch off mode. P.W.1 immediately went to the house of the deceased. By the time, the mother of the deceased (P.W.3) had gone to the school and fetching the child of the deceased she returned to her home. They found the grill gate of the house kept open. The main door of the house was bolted from outside. P.W.1 felt that the deceased would have gone to the open terrace to dry the clothes after bolting the main door of the house from outside. P.W.1 went up to the open terrace of the house through the stairs situated by the side of the house but the deceased was not there. Therefore, she got down and opened the main door, entered into the house and when she went into the bedroom of the house, she found the deceased lying by the side of the cot. Her face was closed with a plastic cover (Plastic bag). There was a towel tightly around the neck of the deceased indicating constriction. Both her hands were tied together. With anxiety P.W.1 removed the plastic packet and sprinkled water on the face of the deceased. But there was no positive response from her. She bite the cheek of the deceased with a view to stimulate her. But, there was no response. She rushed out of the house and cried for help.
2.4. P.W.1 spoke to P.W.3 over phone. She also rushed to the house of the deceased. P.W.1 also noticed that the jewels which the deceased wore usually were found missing. P.W.1, with the help of others, immediately took the deceased in an auto and rushed her to Isabel Hospital. P.W.12, Dr. David Chellaraj, examined the deceased at 04.00 p.m. and declared her already dead. On receiving int
