Pattanaik, J. - (1.) Leave granted in both the Special Leave Petitions.
(2.) Criminal appeal arising out of Special Leave Petition (Crl.) No. 487 of 1996 is by the convict A. Devandran who has been sentenced to death by the learned District and Sessions Judge, Madurai in Sessions Case No. 91 of 1994 and the said death sentence has been confirmed by the High Court of Madras in Criminal Appeal No. 717 of 1995. The Criminal Appeal arising out of Special Leave Petition (Criminal) No. 3598 of 1996 is by accused R. Pandian ad R. Thungamalai who have been convicted under Section 302 and have been sentenced to imprisonment for life by the same learned Sessions Judge in the same Sessions Trial and their conviction and sentence has been upheld by Madras High Court in the aforesaid Criminal Appeal No. 717 of 1995. These three appellants along with two others stood charged of several offences under Sections 120B, 148, 449, 302/34 and 326/34. Out of the five accused persons Bellaithai was acquitted by the learned Sessions Judge. Accused Mohd. Rafiq was granted pardon by the Chief Judicial Magistrate on 14-11-1994 while the case had already been committed to the Court of Session and was pending trial before the learned Sessions Judge. He was examined as approver and is PW-1 in the criminal proceedings. The three accused appellants were also convicted under Sections 120B, 449, 326/34, IPC and were sentenced to imprisonment for 10 years for conviction under Sections 120B, 10 years for conviction under Section 449 and 3 years for conviction under Section 326/34, IPC. The learned Sessions Judge directed the sentence to run concurrently. All of them, however, were acquitted of the charge under Section 148, IPC. The High Court by the impugned judgment apart from affirming the conviction and sentence under Section 302, IPC, as already stated, affirmed the conviction and sentence under Sections 449, 326/34, IPC and 120B.
(3.) The prosecution case in nutshell is that accused Devendran had given some monetary assistance to the approver PW-1 while he was ill. After the approver was cured of his illness he was asked to work in the house of Devendran. While he was so working the accused Nos. 2 and 3 came to the house of Devendran and informed him that there was lot of jewels and cash in the house of PW-5 and they could commit robbery in the said house. Accused Devendran, however, responded that it would not be easy affair to commit dacoity without knowing the topography of the house. At that point of time accused No. 2 replied that his mother who was accused No. 5 has been working in the house of PW-5 for more than ten years and, therefore, it would not be difficult to know the topography of the house from her. Accordingly accused No. 2 went to the house of PW-5 on the direction of accused No. 1 to ascertain the topography of the house. The said accused No. 2 then intimated that the inmates of the house of PW-5 will be going out on 24-11-1992 and that would be an ideal occasion for committing robbery. He also intimated that the only way to enter into the house is through the Chimney. In accordance with a conspiracy thus hatched on 24-11-1992 accused Devendran gave some money to other accused persons and asked them to come back after taking tiffin. PW-1 started weeping as he was forced to become a party to commit a robbery. Then under pressure from accused Devendran PW-1 accompanied by other accused persons entered the house through the Chimney. Further prosecution case is that the accused persons while entering into the house of PW-5 to commit robbery took with them a double barrel gun, a pistol, a small knife, a torch light, gloves and some ropes. Thereafter all of them entered into the house through the Chimney by the help of the rope which had been tied upon. After entering the house accused Devendran made some sound and on hearing the said sound an old lady came out of the room through the kitchen. Immediately Devendran twisted her neck while the accused No. 3 tied her legs with a rope. PW-1 was asked to stand as a guard. When the lady asked PW-1 to get some water PW-1 went inside but before water could be brought the lady died. The accused persons then entered into the room where another lady was sleeping and accused Devendran strangulated the said lady with a piece of cloth and while accused Devendran was strangulating her the 2nd accused was holding her legs on account of such strangulation the old lady also died. PW-2 a young girl who was there inside the house then came running but the accused persons threatened her to kill if she makes any sound. Then the accused persons wanted the keys of the house from her and PW-2 gave a particular set of key. Through the help of that key the 2nd and 3rd accused persons opened up a container wherein lot of jewels and cash was there. The accused persons brought out a box and filled the same with the cash and jewels. As they could not get the keys of other containers they broke open through a crow-bar and it is at that point of time the blowing of horn of jeep was heard. PW-2 somehow escaped through the front door to tell her parents, who had gone out, about what has happened in the house. Nagarajan the driver and PW-5 the father of PW-2 rushed into the house and immediately accused Devendran fired at him. Nagarajan sustained the bullet injuries on his chest and fell down. All the accused persons then took the jewels and cash and then escaped through the staircase. By this time several other people had gathered but nobody could venture to catch hold of the accused persons as they were having the guns and threatened to kill whosoever tries to catch them. The accused persons then went out of the place of occurrence and distributed the ornaments recovered from the house of PW-5 and then dispersed. PW-2 then gave a written complaint to the police which was treated as FIR and police thereupon started investigation. Ultimately after completion of investigation charge-sheet was submitted and the learned Magistrate on being satisfied about the existence of a prima facie case committed the accused for trial. The case has been committed to the Court of Session on 27-1-1994 and while the matter was pending before the learned Sessions Judge an application was filed for grant of pardon to accused Mohd. Rafiq on 8-8-1994. The confessional statement of the said accused was recorded under Section 164 of Code of Criminal Procedure on 25-8-1994. The learned Sessions Judge then considered the application for grant of pardon and by order dated 27-10-1994 forwarded the same to the Chief Judicial Magistrate to be dealt with in accordance with law. The Chief Judicial Magistrate finally granted pardon to the said accused Mohd. Rafiq on 14-11-1994 and resubmitted the records to the learned Sessions Judge. Before the learned Sessions Judge the said accused who was granted pardon by the Chief Judicial Magistrate was examined as PW-1 and thereafter the other prosecution witnesses were examined and finally the learned Sessions Judge by his judgment dated 14th July, 1995, convicted the three accused appellants under different Sections and sentenced them differently as already stated. Accused No. 5, however, was acquitted of the charges levelled against her on a finding that the prosecution failed to establish charges beyond reasonable doubt. Said conviction and sentences passed by the learned Sessions Judge have been upheld by the High Court and thus these appeals. It may be stated here that the prosecution examined as many as 25 witnesses and exhibited large number of documents in support of its case and the defence also examined three witnesses and exhibited number of documents. Out of the 25 prosecution witnesses examined in these cases apart from the evidence of PW-1, the approver two other important witnesses are PW-2, the young girl who ran out of the house immediately when the sound of the jeep was heard and PW-5 who was injured while entering into the house after hearing the incident from his daughter PW-2. The learned Sessions Judge as well as the High Court relied upon the evidence of the approver PW-1 having held the same to be trustworthy and having come to the conclusion that the approver's evidence gets corroboration in material particulars from the evidence of the doctor and certain recoveries made from the accused persons. The two Courts also believed the evidence of PWs 2 and 5 which establishes the complicity of the three appellants with the commission of the crime.;