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TMI Blog1997 (11) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... business under the name 'Rani Silk House, and then another one named 'Maharani Textiles'. In 1969, they started a third business initially under the name 'Rani Umbrella Mart' which was later on changed to 'Rani Cut Piece Center'. Besides Tomy and Francis, Merli, (deceased) and Josephine (PW-26) were the other partners. After the death of Francis in 1975, Ammine (A-l) was inducted as a partner in the first two firms; but, she was not allowed to join the third firm as Francis had overdrawn his share in the capital of the firm. Ammine was periodically paid certain amounts by Tomy for maintenance of herself and her children, but she was not satisfied with that arrangement and often expressed her resentment openly. Ammine was at times required to borrow money from others and that is how she came in contact with Kartikeyan (A-2), who was her neighbour. Gradually, their acquaintance developed into illicit intimacy. In June, 1979 she fell ill and during the period of her hospitalisation A-2 was often seen with her in the hospital and it was freely talked by the people that they had developed illicit intimacy. On one occasion when Tomy had visited the hospital he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cyanide in her mouth. She tried to resist that attempt by giving a bite on the hand of A-3 but she was not successful. The poison had its effect and Merli died immediately. Then, A-l with the help of A-3 forcibly gave cyanide to Merli's two children. They also died instantaneously. Ammine then left the house after removing a gold chain of Merli from a cupboard. The other two accused, namely, A-3 and A-4 remained behind waiting for Tomy to come; but as he did not come at the expected time they also left. When Tomy came and saw what had happened he screamed and that brought the neighbours there. Soon the Police was informed about the incident. All the accused were then charge-sheeted and tried for the offences punishable under Section 120-B and Sections 201, 302, 452 all read with Sections 34, 109 and 114 IPC. A-2 was separately charged for the offence punishable under Section 411 IPC. 3. There being no eye witness the prosecution relied upon the following circumstances to prove its case :- (1) A-l had sufficient motive to exterminate Tomy and his family. (2) A-l along with A-2, who was the neighbour of A-l and with whom she had developed illicit intimacy, first tried t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court for rejecting the prosecution evidence were grossly unreasonable and some of them were almost perverse. After re-appreciating the evidence it came to a different conclusion as regards the guilt of the accused. 7. The High Court accepted the evidence of Tomy (PW-2) and his elder brother Paul (PW-15) and held that A-l was on inimical terms with Tomy and his wife and that she had sufficient motive to finish Tomy and his family members. The trial court had also accepted that evidence and held that A-l had strong ill-feeling against PW-2 and his wife, Merli. The High Court also agreed with the finding of the trial Court that Merli and her children had died as a result of cyanide poisoning sometime between 7.30 p.m. and 9.00 p.m. on 23.6.1980 and that it was not a case of suicide but cyanide was administered to them by an external agency. The High Court also confirmed the finding recorded by the trial Court relying upon the evidence of PWs 41, 43, 44 and M.Os. 27, 28, 29, 40 and 41, that A-l and A-2 had resorted to black magic and witch craft for ruining Tomy and his family. The High Court believing the evidence of PWs 2, 15, 17, 40 and 41 confirmed the finding that Ellyamma, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... black fat chap sitting in the house. He was told by Merli that the lady was her sister-in-law and the other person was Johnny (A-3). The evidence of this witness was not believed by the trial Court on the ground that he did not identify A-l and A-3 in the court as the persons who were seen by him sitting in Tomy's house though he had identified them at the test identification parade held for that purpose. The High Court accepted the evidence of PW-38 as there was nothing in his cross-examination which could have created any doubt regarding truthfulness of his version. Merely because he did not specifically identify A-3 in the court his evidence could not have been rejected. It was not that he was asked to identify A-3 in the court and he failed to identify him. Moreover, even the defence had proceeded on the basis that A-3 was identified in the court as pointed out by the High Court. Nothing substantial could be urged by the learned counsel for the appellant to disbelieve the evidence of this witness. 9. The trial court reluctantly accepted the evidence of PWs 20 and 21, as they were independent witnesses and nothing could be alleged against them by the defence. It, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt did not attach any importance to it on the ground that it was not established that they were the same bottles as were purchased by A-4 from the shop of PW-20 on 7.6.1980. MO 44 was recovered at the instance of A-2. It was a whisky bottle and it contained mixture of Parataph and eccalex as stated in the certificate issued by the Joint Director of the forensic Science Laboratory. The trial court rejected this evidence as the bottle was recovered from an open space accessible to all and that even though only 100 ml. of parataph and 100 ml. of eccalex were purchased, the mixture that was recovered from the bottle was 220 mls. The trial court also held that the prosecution had failed to establish that the said bottle contained mixture of parataph and eccalex as the certificate was signed by the Joint Director of Forensic Science Laboratory, and not by the Director and, therefore, it was not admissible under Section 293(4) of the Cr. P.C. 11. The High Court after referring to the cross-examination of PWs 26 and 38 held that even the defence had proceeded on the basis that the accused were correctly identified in the court also, and, therefore, the Sessions Court was wrong in discar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Director'. The amendment made in Clause (e) of Section 293(4) now indicates that clearly. If the Joint Director was not comprehended within the expression Director then the Legislature would have certainly named him while amending the clause and providing that Section 293 applies to the Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory. A Joint Director is a higher officer than a Deputy Director or an Assistant Director and, therefore, it would be unreasonable to hold that a report signed by Joint Director is not admissible in evidence though a report signed by Deputy Director or Assistant Director is now admissible. In our opinion the High Court was right in holding that the report made by the Joint Director was admissible in evidence and it deserved to be relied upon. 12. To prove that A-4 had procured potassium cyanide the prosecution had examined Chinnappan (PW-27). This witness has stated that about a couple of weeks prior to the death of Merli and her children, while he was walking along with A-4 on a road, A-4 had told him that he was in need of some effective poison to kill stray dogs which were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .6.1980, Merli and her children were alive. 14. The prosecution had also led evidence to prove the movements of A-1, A-3 and A-4 between 6.30 p.m. and 8.00 p.m. on that day. Ennamma (PW-3), who was residing just opposite to A-l's house, stated that she had seen A-l coining out of her house at about 6.30 p.m. and proceeding towards the house of Tomy. She further stated that her attention was drawn towards A-1 because it was unusual for A-l to move out of her house at such a late hour. She has also stated that a few minutes later she had seen A-3 and A-4 coming out of the house of A-land going towards Tomy's house. The trial court did not disbelieve the evidence of this witness but held that what she had stated did not amount to an incriminating circumstance and therefore, no weight could be attached to it. Only omission brought out in her cross-examination was that she had not given the name of A-4 in her police statement but had described it as Duck Youngster . The High Court held that her evidence deserved to be believed and it did establish that A-l, A-3 and A-4 were seen together near the house of A-l about an hour before the incident. PW-4 had met A-l some time ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was discarded on flimsy grounds as pointed out by the High Court. We do not think it necessary to refer to the evidence of all those witnesses and it would be sufficient to state that the said evidence was rightly believed by the High Court. We will only refer to the evidence of Joseph (PW-8) who was, at that time, serving as an officer in the Life insurance Corporation. He has deposed that at about 7.35 p.m., while he was passing by the house of Tomy, he had seen one woman coming out of his house. He first thought that she was Merli and, therefore, looked at her to have a talk with her. He at once noticed that she was not Merli so without talking with her he proceeded further after passing by her side. He has further stated that on the next day he had visited Tomy's house to attend the funeral and at that time, inside the room where the dead bodies were laid, he had seen the woman, whom he had seen on the previous night. He, therefore, enquired from Paul dominion (PW-46) and PW-47 as to who she was and they had told him that she was Ammine, widow of Francis. He informed both of them that he had seen her coming out of Tomy's house on the previous evening. This revelation by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W-13) who has stated that at about 7.30 p.m. while she and one Kunjamma were returning from the hospital and were passing by the house of Tomy they had heard a cry of a child coining from the house of Tomy. As no further cry was heard and it was drizzling they did not stop and proceeded further. This witness was not at all cross-examined by the defence. Her evidence was not disbelieved by the trial court but no importance was attached to it. The High Court rightly considered this as a relevant circumstance as it proved that at about 7.30 p.m. something had happened in the house of Tomy which had made a child cry loudly. The High Court held that the evidence of this witness together with the other evidence regarding movements of the accused and the evidence of PW-8 established that A-l had gone to the house of Tomy some time after 7.00 p.m., that Merli and her children were killed at about 7.30 p.m. and that A-l was found leaving that house at about 7.35 p.m. As regards the subsequent movements of the A-l, A-3 and A-4 the prosecution had led the evidence of PWs-25, 28 29 and 30. Their evidence was also disbelieved by the trial court on flimsy grounds. The High Court has pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, they were admissible in evidence. In fact the trial court had also held that they being admissions were not hit by any provision of the Evidence Act. 18. Next important circumstance disbelieved by the trial court was the find of finger prints of A-3 on one of the two glasses (MOs 1 and 2) seized from Tomy's house on 24.6.1980 under Mahazer (Exh. 57). Finger prints found on those two glasses were compared with the admitted finger prints of A-3 and it was found that the finger prints found on one glass tallied with the finger prints of A-3. The trial court disbelieved this important evidence on the ground that the earlier photographs of those impressions were not clear enough to enable the expert to come to any definite conclusion and, therefore, it was doubtful whether the subsequent photographs were of the original finger prints. The trial court took this view as it found that the prosecution had not explained how on the subsequent occasion it was possible for the photographer to redevelop those impressions in a better manner and have better photographs. The trial court was also of the view that even though the photographs were taken on the second occasion in pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that on 27.6.1980 some policemen accompanied by A-2 had approached the watchman and told him to open the store room and after going inside had left it after some time. The High Court believed the prosecution evidence and held that it has successfully established that the gold chain (MO-8) was concealed by A-2 below a bundle of wire in the store room where he was working and that it was recovered on the basis of the statement made by him before the panch witnesses. We have already pointed out earlier why the trial court had not believed the recovery of bottle containing mixture of parataph and eccalex and why the High Court has held that the reasons given by the trial court are improper. 20. The confession made by A-4 before the Judicial Magistrate was discarded by the trial court as it found it to be not voluntary and true. The reasons given by it for taking that view were - (1) while A-4 was remanded to judicial custody by the Judicial Magistrate on 7.7.1980 the Magistrate had thought it fit to give a direction that he should not be kept in the sub-jail at Alwaye as the three co-accused were in that sub-jail and this indicated that if he had been allowed to remain with the othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded by it, therefore, stood vitiated. We are of the opinion that the High Court was right in taking this view. If while remanding A-4 to judicial custody the Judicial Magistrate thought it fit to keep him away from the police and the co-accused, it is difficult to appreciate how such a direction can be regarded as a circumstance indicating that confession was not voluntary. So also it is difficult to appreciate how from the circumstance that the Judicial Magistrate had started recording the confession within a short time after A-4 was produced before him on 7th an inference could have been drawn that he was not making the confession voluntarily. Merely because A-4 while retracting his confession and during his examination under Section 313 Cr.P.C. had alleged that he had made the confession under pressure and force from the police, it was not proper for the trial court to conclude that the confession was not voluntarily made. The trial court ought to have appreciated that the confession was retracted four days after the accused was released on bail. No such complaint was made by him while he was in judicial custody from 7th till he was released on bail after about a fortnight. Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ammine and other accused had conspired together and, therefore, the confession made by A-4 could be used against other accused also. 23. On re-appreciation of the evidence the High Court held that most of the circumstances relied upon by the prosecution were proved beyond reasonable doubt, that they formed a complete chain and that in absence of any valid explanation by the accused they were sufficient to lead to a conclusion that all the four accused had entered into a criminal conspiracy to murder Merli and her children and did murder them, between 7.00 p.m. and 7.45 p.m. on 23.6.1980, It, therefore, allowed the appeal, set aside the acquittal of the accused and sentenced them to suffer imprisonment for life. 24. Same contentions which were urged on behalf of accused before the High Court were urged before us. We agree with the reasons given by the High Court for rejecting them. Other reasons have been stated by us earlier while pointing out how the view taken by the trial court regarding each circumstance was not proper. The evidence regarding the movements of A-I, A-3 and A-4 between 6 and 7.00 p.m. near Tomy's house, the find of finger prints of A-3 on one of the gla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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