(Prayer: Criminal Appeal filed under Section 374 of Cr.P.C to set aside the judgment in S.C.No.305 of 2011 on the file of Additional District and Session Court, Fast Track Court No.1, Coimbatore dated 07.03.2012.)
N. Sathish Kumar, J.
1. Aggrieved over the judgment of conviction and sentence, dated 07.03.2012 in S.C.No.305 of 2011 on the file of learned Additional District and Sessions Court, Fast Track Court No.1, Coimbatore, the appellant/accused has preferred this Criminal Appeal.
2. The appellant/accused was convicted and sentenced by the trial Court as follows:
| SI No. | Conviction | Sentence |
| 1 | Section 302 of IPC | Life imprisonment with fine of Rs.1000/-, in default to undergo one year rigorous imprisonment |
| 2 | Section 392 of IPC | To undergo 3 years Rigorous imprisonment with fine of Rs.1000/-, in default to undergo six months rigorous imprisonment |
3.1.The deceased, aged about 60 years, was residing separately in Sivasakthi Layout, Vengadasami Nagar, New Sidhapudur, Coimbatore. She had two daughters. The elder daughter is settled in USA and the younger daughter (PW3) is living in Ganapathi Anna Nagar. On 11.08.2009, the deceased called PW3 to come to her house and she said she will come in the evening. Accordingly, PW3 and her mother-in-law went to the deceased's house in the evening. However, they found that the front door was locked from inside and the back door was locked from outside. PW3 was under the impression that her mother would have gone to some other place. She enquired with the neighbours and thereafter, returned to her house. On the next day, PW3 called the deceased twice, but there was no response and immediately PW3 called PW1, the brother of the deceased and asked him to come to the deceased's house. Accordingly, PW1 also reached the deceased house. They decided to break open the house. Accordingly, they removed the lock by using an axe blade and went inside. They found the deceased lying on the floor with neck injuries, and the jewellery she usually wore was missing.
3.2. Immediately, PW1 lodged the complaint (Ex.P1) in the police station. PW15, the Sub-Inspector of Police received the complaint and registered the case in Cr.No.1452 of 2009 under Sections 302 and 380 of IPC under Ex.P9 and forwarded the FIR to the Court with a copy marked to the Inspector of Police (PW19). PW19 took up the investigation, went to the place of occurrence and prepared the Observation Mahazar (Ex.P4) and a rough sketch (Ex.P13) in the presence of PW4 and PW7 and he has also seized the material objects knife (MO3), blood stained floor (MO4), ordinary floor (MO5), foot-print stained floor (MO6), gauze (MO7) and also seized half burnt cigarette butt under Seizure Mahazar (Ex.P5). PW19 conducted inquest over the dead body and prepared inquest report (Ex.P14) and sent the dead body for postmortem with a requisition letter. PW15, the Medical Officer attached to the Government Medical College Hospital conducted autopsy over the dead body and found the following injuries on the body:
"1) A transversely oblique cut injury 12 x 3cm x tracheal deep noted on front and both sides of neck. The right end is 6 cm below to right mastoid, left end is 5 cms below to left mastoid. On dissection, the wound passes inwards and backwards, cutting the muscles, nerves and vessels including left side carotid sheath (Carotid artery and jugular vein) and partially cutting the underlying trachea at the level of 2nd tracheal ring. Both margins are regular. The tailing of the wound is towards right side.
2) Old lacerated injury of 0.75 x 0.75 cm noted on front of left index finger encircled with band aid.
3) Contusion of 1 x 1 cm noted on back of left middle finger in its middle.
OTHER FINDINGS:
- Pleural and Peritoneal Cavities - empty.
- Lungs-cut section shows paleness with early decomposition changes.
- Heart. all chambers contain few cc of fluid blood. Coronaries patent.
- Stomach contains partly digested cooked rice particles, no specific smell, mucosa pale.
- Small intestine contains about 20 ml of bile stained fluid, no specific smell, mucosa pale.
-Hyoid bone intact.
-Liver, Spleen & Kidneys -cut section shows paleness with early decomposition changes- Brain-Pasty.
- Urinary bladder-empty. Uterus -Normal size; cut section - empty.
Note: - Smear and swab from vaginal vault Uterus, and pubic area preserved for seminal analysis. Swab from on and around left side nipple for salivary analysis.
- Viscera preserved and sent for chemical analysis.
and issued Ex.P10 opining that the deceased would appear to have died of shock and haemorrhage due to cut injury on the neck with its corresponding internal injuries sustained by her and the death would have occurred about 36 to 48 hours prior to autopsy. The final opinion is marked as Ex.P11.
3.3. PW5 is the call-taxi driver. On 11.08.2009, when he went to drop somebody in the place of occurrence, he parked his car near the house of the deceased and at that time, he saw the accused entering into the house of the deceased at 09.15 am and he also identified the accused in the test identification parade. PW6 has also seen the accused leaving the house of the deceased on 11.08.2009 at about 03.00pm and on 12.08.2009, he came to know about the death of the deceased. He has also identified the accused in the test identification parade.
3.6. PW9 and the accused worked together in the house of the deceased 10 days prior to 11.08.2009. PW9 only took the accused to the deceased house and after completing the civil work, the accused assisted the deceased in the cleaning work. The accused continued to work in the same house.
3.7.The accused was residing in PW10's house as a tenant. Thereafter, he vacated the house and went to PW11's house where he was staying at the relevant point of time. On the evening of 11.08.2009, the accused came and told PW11 that he would vacate the house and that he would receive the advance after two days.
3.8. PW12, who was residing in the same locality stated that on 11.08.2009 at about 08.30pm, the accused came to her and gave her a chain weighing 4 1/2 sovereigns and a half a sovereign stud and asked for Rs.50,000/- and PW12, after receiving the jewels, gave Rs.35,000/-. The accused informed her that his mother-in-law was seriously ill and that therefore, he required the money. After six months, the police seized the jewels. They also brought the accused to the spot at the time of seizure.
3.9. PW13 also saw the accused going to the house of the deceased and informed that he was carrying the gauze in his hand.
3.10.PW17, the Inspector of Police, Aruppukottai while investigating the case in Crime No.169 of 2010 under Section 302 IPC, arrested the accused on 02.05.2010, the accused gave a voluntary confession wherein he disclosed his involvement in the murder of the deceased at Coimbatore.
3.11. PW19, in continuation of the investigation, after the arrest of the accused by PW17, took the accused into police custody through the Judicial Magistrate and recorded the confession of the accused in the presence of PW7. The admissible portion of the confession is Ex.P6. Pursuant to the same, he seized a gold chain (MO1) and a pair of stud (MO2) from one Rathinam (PW12) and forwarded the case properties to the Court and the accused to the judicial custody. PW19 has already given a requisition to the Court to send the materials seized from the place of occurrence to the Forensic Science Department and biological report received in this regard is Ex.P16.
3.12. Thereafter, on 06.10.2010, with the permission of the Court, the blood sample of the accused was also taken for comparison. PW2, the DNA expert, compared the saliva extracted from the cigarette butt with the blood sample of the accused and on comparative analysis found that the DNA profiles in both samples are one and the same and issued Ex.P2.
3.13. PW17 requested for a test identification parade. PW16, the Judicial Magistrate conducted the test identification parade and PW5 and PW6 identified the accused.
4. On completion of the evidence on the side of the prosecution, the accused was questioned under section 313 Cr.P.C. as to the incriminating circumstances found against him in the evidence adduced by the prosecution witnesses. He denied all the incriminating circumstances as false. On the side of the defence, no evidence was recorded.
5. Before the trial Court, on the side of the prosecution, PWs 1 to 19 were examined and Exs.P1 to P29 and Material Objects MO1 to MO11 were marked.
6. The trial Court, after appreciating the oral and documentary evidence and the materials available on record, by judgment dated 07.03.2012, found the accused guilty of the offences under Sections 302 and 392 of IPC and convicted and sentenced him to undergo imprisonment as stated above. Challenging the same, the present criminal appeal has been preferred.
7. The main contention of the learned counsel for the appellant is that the entire case of the prosecution is based on circumstantial evidence, but the circumstantial evidence relied upon by the prosecution has not been conclusively established. The learned counsel would submit that the DNA test relied upon by the prosecution does not clinchingly prove the guilt of the accused. Furthermore, since the DNA report was received from the laboratory only after the arrest of the accused, the possibility of the evidence being planted against the accused cannot be ruled out and further, the so called identification parade also looses its significance as the accused himself has stated that his photograph has been taken by the Inspector of Police. According to learned counsel, the alleged recovery from PW12 is also doubtful and hence would submit that the prosecution has not established all the circumstances beyond reasonable doubt. The learned counsel for the appellant/accused further submitted that if the accused had an intention to steal the gold jewels, he would not have left the two bangles in the hands. Further, the Almirah kept in the house was intact and the accused has not made any attempt to open it. The learned counsel further contented that the foot print found in the place of occurrence was not sent for forensic examination and the finger print report has also not been marked as evidence. Apart from the above submissions, the learned counsel also places much reliance on the judgment of the Hon'ble Supreme Court in the case of Munna Moyuddin Shaikh Vs. State of Gujarat reported in 2026 INSC 558 for the proposition that when a sentence of life imprisonment is imposed, the High Court can modify the same and impose a fixed sentence. Learned counsel would submit that the accused was aged 24 years at the time of commission of offence and is in custody for almost 16 years and prays that considering the age of the deceased, fixed sentence may be imposed.
8. Per contra, the learned Additional Public Prosecutor would submit that PW5 and PW6 have seen the accused entering into the house and leaving the house of the deceased on the date of occurrence and they also identified the accused in the identification parade. He would further submit that when the dead body was seen by the Investigating Officer, half burnt cigarette butt was also seized from the place of occurrence and the same was sent to the laboratory immediately even before the arrest of the accused and the biological report clearly show that Saliva was extracted from the cigarette butt and retained in a container. Later, after the arrest of the accused, his blood sample was taken and DNA extracted from the blood sample was compared by the expert with the DNA extracted from the Saliva and found that they belong to one and the same person, which is the clinching evidence against the accused. It is his further submission that Gold Chain (MO1) and ear Stud (MO2), which have been identified by PW3, the daughter of the deceased have been recovered from PW12. PW12, who is also known to the accused and was residing in the same place, clearly stated that accused demanded Rs.50,000/- and received Rs.35,000/- by handing over the gold chain and a pair of stud. The evidence of PW12 also clearly establishes the same. The testimonies of other witnesses also clearly show that the accused was working in the deceased's house at the relevant point of time and hence, the prosecution has proved the guilt of the accused beyond reasonable doubt.
9. We have considered the rival submissions and also perused the entire materials placed before this Court.
10. The prosecution has relied upon the following circumstances:
i) Motive for stealing the gold jewels;
ii) The accused was seen entering and leaving the house of the deceased;
iii) The DNA profiles extracted from the saliva in the cigarette butt tallies with the blood samples taken from the accused;
iv) Recovery of gold ornaments and homicidal death.
11. As far as the homicidal death is concerned, the evidence of PW16 (the Medical Officer) and Exs.P10 and P11 clinchingly establish the homicidal death of the deceased and there is no dispute in this regard. Regarding the motive for stealing the jewellery worn by the deceased, PW3 (one of the daughters of the deceased) has clearly stated that upon seeing her mother's dead body, she found that the jewellery usually worn by the deceased was missing. She has also identified MOs 1 and 2 before the Court.
12. Furthermore, PW12 (Rathinam), who is acquainted with the accused, clearly stated that on 11.08.2009 at about 08:30 p.m., the accused came to her house and demanded Rs. 50,000/- in lieu of two jewellery viz., one gold chain weighing 5 sovereigns and a pair of stud under the pretext that his mother-inlaw was seriously ill in Madurai. She gave him only Rs. 35,000/- and, upon receiving the said amount, the accused left the place. Subsequently, based on the confession of the accused and his identification of the location, the police recovered MOs 1 and 2 from PW12. These facts clearly establish the theft of the jewellery worn by the deceased.
13. The testimony of PW12 also clearly shows that the accused has absconded after receipt of the amount and he has vacated the house and only after six months, the accused came with the police and MO 1 and MO2 were recovered from PW12. The very fact that the accused has absconded from the place after receipt of the amount itself clinchingly establish the one of the incriminating circumstance against him.
14. That apart, PW10 and PW11 have also clearly stated that the accused has vacated the house after the occurrence. Therefore, the conduct of the accused leaving the place and absconding is also one of the circumstances against the accused. Therefore, the motive aspect projected by the prosecution is clearly established. Though it is argued by the learned counsel for the appellant/accused that if the accused had intention to steal the jewellery, he would have removed all the jewellery, whereas two gold bangles remained on the hands of the deceased. While it may be true that these gold bangles were left on the body of the deceased, as noted by the Investigating Officer in the Observation Mahazar, that fact alone cannot be a ground to hold that the accused had no intention. Probably the accused would have thought that gold chain weighing 5 sovereigns and a pair of stud may meet his requirement. Therefore, merely because the accused had not taken all the jewels, it cannot be said that he had no intention to steal the jewels.
15. It is to be further noted that immediately after the lodging of the FIR, the police reached the spot and PW19 has prepared Observation Mahazar and seized the half burnt cigarette in the place of occurrence in the presence of PW4 under the seizure mahazar. The evidence of PW4, clearly shows that all the material objects were seized including the cigarette butt from the place of occurrence and were immediately sent to the Court and there was no delay in this regard. If Ex.P5-seizure mahazar is carefully seen, the same reached the Court on 13.08.2009 and a request was also given to the Judicial Magistrate to send all the materials to the Forensic Science Department and based on the said request, the concerned Judicial Magistrate has also sent all the material objects by letter dated 28.04.2010 as could be seen from Ex.P16 and on 28.04.2010 itself all the items were received by the Forensic Science Department. Ex.P16- Biological report further shows that saliva was detected on the half burnt cigarette butt. The biological report further indicates that the saliva detected in the cigarette piece was kept in a synthetic container and again it was sent to the Court on 19.07.2010 for onward transmission to Forensic Sciences Department, Chennai.
16. It is relevant to note that the accused was arrested on 11.05.2010 in connection with another murder case in Samayanallur, Madurai. Thereafter, he was taken into custody by PW19 and with the permission of the Court, on 10.06.2010, blood sample was taken and sent for DNA analysis for comparison with the saliva extracted from the cigarette butt already forwarded to the Forensic Science Department. Based on the said request, PW2 compared the saliva extracted from the cigarette butt with the DNA extracted from the blood sample of the accused and issued Ex.P2 stating that both belong to the same person. This scientific evidence and the DNA report clinchingly establish the presence of the accused on the date of occurrence in the deceased's house.
17. It is pertinent to note that the recovery was effected from PW12 upon identification by the accused, which has remained unexplained. In such view of the matter, the Court has no other option except to presume that the accused murdered the deceased for the purpose of stealing the jewels. Further, the conduct of the accused vacating the house and leaving the place immediately after the receipt of the money from PW12 even without collecting the advance amount from PW11 is also one of the circumstances against the accused.
18. All these circumstances clinchingly establish the complicity of the accused in the crime. Hence, we are of the view that the charge under Sections 302 and 392 of IPC is clearly established by the prosecution and the finding of the trial Court does not call for any interference.
19. At this stage, the learned counsel for the accused submitted that the accused was aged 24 years at the time of occurrence and has been undergoing incarceration for the past 16 years. He has expressed remorse and sought indulgence in view of the judgment of the Hon'ble Supreme Court in the case of Munna Moyuddin Shaikh (cited supra) wherein the Hon'ble Supreme Court relying on the judgment of the Constitution Bench in Union of India Vs. V.Sriharan reported in (2016) 7 SCC 1, Shiva Kumar alias Shiva alias Shivamurthy vs. State of Karnataka reported in (2023) 9 SCC 817 and Birbal Choudhary alias Mukhiya Jee Vs. State of Bihar reported in (2018) 12 SCC 440 has held as follows:
"16. The underlying ratio of the above quoted judgments is that when a sentence of life imprisonment is imposed, Section 53 read with Section 45 of the IPC would convey the meaning that it is till the natural life subject to the right of claiming remission. Hence, modifying a sentence of life imprisonment and imposing a fixed sentence is permissible under the interpretation placed in Sriharan (supra) and followed in Shiva Kumar (supra), as long as the period imposed is more than fourteen years of imprisonment.
17. There is one more reason which has compelled us to adopt this course of action. The incident is of 1998 and the appellant was then about 21 years of age.
18. For the reasons stated above, while maintaining the conviction under Section 302 of the IPC and under Section 135 of the BP Act, we modify the sentence of the appellant to the period already undergone i.e. 23 years, 6 months and 3 days."
20. In view of the aforesaid dictum, we are of the view that the sentence imposed on the appellant / accused can be fixed at 20 years.
21. In the result, this Criminal Appeal is partly allowed. While this Court confirming the conviction in S.C.No.305 of 2011 on the file of Additional District and Session Court, Fast Track Court No.1, Coimbatore dated 07.03.2012, modify the sentence to one of 20 years rigorous imprisonment for the offence under Section 302 IPC. It is made clear that if the accused is eligible for remission under the Advisory Board scheme, it is for the appropriate authority to take a decision. The fine imposed by the trial Court is confirmed. Consequently, the connected miscellaneous petition is closed.