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2017 Supreme(Mad) 359
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. NAGAMUTHU & ANITA SUMANTH, JJ.
Srija - Appellant
Vs.
State, through The Inspector of Police, Baluchettichatram Police Station, Kancheepuram District - Respondent
Crl.A.No.135 of 2017 and Crl.M.P.No.3706 of 2017
Decided On : 20-03-2017
For the Appellant : Mr. S. Mohamed Ansar.
For the Respondent: Mr. P. Govindarajan, Addl. P.P.
Headnote:
Indian Penal Code, 1860 – Section 302, 392 and 450 – Indian Evidence Act – Section 114 – Rigorous Imprisonment – Deceased – FIR – Appellant is the second accused in Sessions Case Sessions Court first accused was one stood charged for offences pendency of trial first accused died appellant alone faced trial deceased in this case was one Mrs. Chitra. She was residing at accused are husband and wife, respectively were residing in a portion of said house as tenants – In respect of rental amount there was some mis-understanding between deceased and first accused – It is alleged that on account of above motive accused trespassed into house of deceased; gave cool drinks mixed with sleeping tablets to deceased and after deceased had fallen asleep second accused tied her legs and hands with a nylon rope first accused inserted a cloth into mouth of deceased and caused her death – Held, Probability that first accused had committed crime and kept material objects in the house cannot be ruled out. But at the same time fact that appellant had knowledge that these properties were kept in her house, cannot be doubted – From these two it can be presumed, as provided under Section 114 of Indian Evidence Act, that accused is either the thief or the one who had received stolen properties – Order to presume that accused was thief – Court do not have any other material – But single fact that finger prints of the first accused were found on bureau and that possibility of first accused keeping stolen articles in house cannot be ruled out would go to show that presumption of theft on part of appellant cannot be raised – Appeal is partly allowed.
S. Nagamuthu, J.
The appellant is the second accused in Sessions Case No.11 of 2012, on the file of the Sessions Court No.2, Kancheepuram. The first accused was one Mr. Vidyasekar. They stood charged for offences under Sections 450, 302 read with Section 392 IPC. During the pendency of the trial, the first accused Mr. Vidyasekar died. Thus, the appellant alone faced the trial. The trial Court, by judgement dated 22.4.2016, convicted her under both charges and sentenced her to undergo imprisonment for life and to pay a fine of Rs. 1000/-, in default, to undergo rigorous imprisonment for six months for offence under Section 302 IPC; to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,500/-, in default, to undergo rigorous imprisonment for three months for offence under Section 450 IPC and to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,500/-, in default, to undergo three months rigorous imprisonment for offence under Section 392 IPC. Challenging the said conviction and sentences, the appellant/second accused has come up with this appeal.
2. The case of the prosecution in brief is as follows:
(a) The deceased in this case was one Mrs. Chitra. She was residing at Door No.631/3, 4th Street, Anna Nagar, Balichetty Village, Chennai. The accused are husband and wife, respectively. They were residing in a portion of the said house as tenants. In respect of the rental amount, there was some mis-understanding between the deceased and the first accused. It is alleged that on 2.09.2011, at around 10.30 a.m., on account of the above motive, the accused 1 and 2 trespassed into the house of the deceased; gave cool drinks mixed with sleeping tablets to the deceased and after the deceased had fallen asleep, the second accused tied her legs and hands with a nylon rope; the first accused inserted a cloth into the mouth of the deceased and caused her death. After the deceased died, it is alleged that these two accused had stolen a pair of ear stud, Nokia Cell phone and TVS Champ motorcycle, belonging to the deceased and fled away from the scene of occurrence. The occurrence was not witnessed by any one.
(b) P.W.1 is the husband of the deceased. According to him, from 30.08.2011 onwards he has gone to a neighbouring village. At around 4.30 p.m. on 2.9.2011, his daughter-P.W.2 called him over phone and informed him that the house of the deceased was found locked from out side. P.W.2 was waiting outside the house of the deceased, believing that the deceased would have gone elsewhere and she would return soon. P.W.1 returned to his house at around 1.00 a.m. on 3.9.2011. On his arrival, they broke open the lock and went into the house. In the bed room, they found the deceased lying dead. Both her hands and legs were tied by means of nylon ropes and a cloth was found inserted into her mouth. The ear studs, a gold chain and cash were all found missing. Then, he went to the Baluchettychatram Police Station and made a complaint at 2.00 a.m. on 3.9.2011. Ex.P1 is the complaint. Ex.P.15 is the FIR.
(c) The case was taken up for investigation by P.W.18. He went to the place of occurrence, prepared an observation mahazar and a rough sketch, in the presence of witnesses. He removed and recovered nylon ropes, with which the hands and legs of the deceased had been tied and also the cloth from the mouth of the deceased. He examined many witnesses. But, no clue could be obtained. He conducted inquest on the body of the deceased and forwarded the same for post-mortem. P.W.14-Dr.Srikanth conducted autopsy on 3.9.2011 at 10.15 a.m. He found the following injuries:
"Externally: Face is darkened with partially open eyes and wide open mouth, with tongue inside which is bluish black in colour. Teeth 8/7.
1. Abrasion 4 x 1 cm brownish. Lower lip ® side extending to the chin.
2. Pressure abrasion ® check above ® side of upper lip or 1 x 1 cm
3. Blackish brown discoloration of entire anterior aspect of neck extending to the ® si
