IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.12.2009
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH
CRIMINAL APPEAL No.520 of 2009
Nagarajan ..Appellant
Vs.
State by
Inspector of Police,
Kodumudi Police Station,
Karur,
Erode District
Crime No.384 of 2008 ..Respondent
This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Principal Sessions Judge of Erode Division at Erode made in S.C.No.207 of 2008 dated 24.7.2009.
For Appellant : Mr.S.Ashok Kumar, Senior Counsel
for Mr.A.Amarnath
For Respondent : Mr.Babu Muthu Meeran, Addl.P.P
J U D G M E N T
(The judgment of the Court was made by M.CHOCKALINGAM, J.)
Challenge is made to the judgment of the Principal Sessions Division, Erode made in S.C.No.281 of 2008 whereby the appellant shown as A1 along with the other accused ranked as A2 stood charged, tried and found guilty under sections 302 r/w 34 and 379 IPC and awarded life imprisonment along with a fine of Rs.5,000/-, in default, to undergo six months rigorous imprisonment and three years rigorous imprisonment respectively. The sentences are ordered to run concurrently. This appeal is brought forth by the first accused.
2. The short facts necessary for the disposal of this appeal can be stated as follow:
(a) P.W.1 is the husband of the deceased. They were residing in their firm house situated in the garden lane within the jurisdiction of the respondent Police Station. The first accused and P.W.2 were tenants under them during the relevant period. P.W.1 leaving his wife in his house, went to Erode Government Hospital during the morning hours on 22.10.2008 to see his ailing sister who underwent treatment in the Hospital.
(b) P.W.15 was also a resident of the same place. He knew both P.W.1 and his wife. On the date of occurrence at about 12.00 noon, he was collecting leaves for his goat in the turmeric garden. At that time, he saw the deceased Malayammal walking towards her banana garden. She was followed by the accused at a distance of 5 to 6 feet. He returned to his house after collecting the leaves.
(c) P.W.4, a resident of North Street, Salaipudur knew both P.W.1 and his wife Malayammal. P.W.4 owned a garden adjacent to the garden of P.W.1. On the date of occurrence at about 12.30 hours, P.W.4 went to her garden to collect the coconut leaves. At that time, she found both the accused coming out from the banana garden of P.W.1. When P.W.4 questioned them, they answered that they came there to pluck banana flower and due to height, they could not pluck the same and they were returning back.
(d) In the evening hours at about 4.00 p.m., P.W.1 returned to his house and when he found his wife missing, he enquiry all of them. A1 replied that he met the deceased at about 12.45 a.m. and thereafter, he went to Erode and he was returning that time. A1 joined P.W.1 in making search of Mayamml. While doing so, they found the dead body of Mayammal in the east west canal. A1 took the body out of the canal. P.W.1 noticed from the dead body of Mayammal that the jewels were missing. P.W.1 raised cry. The other witnesses rushed over there. The dead body was brought to the house of P.W.1.
(e) P.W.1 went to the respondent Police Station and gave a complaint, Ex.P1 to P.W.13 Sub Inspector of Police who was on duty at about 17 hours. On the strength of Ex.P1, a case came to be registered in Crime No.384/2001 under sections 302 and 379 IPC. The F.I.R., Ex.P12 was despatched to Court.
(f) On receipt of a copy of the F.I.R., P.W.14, the Inspector of Police took up investigation. He proceeded to the spot, made an observation in the presence of witnesses and panchayatdars and prepared the observation mahazar, Ex.P2 and also drew a rough sketch, Ex.P13. P.W.11 photographer took photographs. The photographs and the negatives were marked as M.O.9 series. The Investigating officer recovered the material objects from the place of occurrence and recorded the statement of the witnesses. He conducted the inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P14, inquest report. Thereafter, the dead body was sent for the purpose of post mortem.
(g) On receipt of the requisition, P.W.10 doctor attached to the Government Hospital, Kodumudi conducted autopsy on the dead body of the deceased and gave his opinion in Ex.P10, post mortem certificate that the deceased died out of asphyxia due to the injuries sustained on the neck, 12 to 24 hours prior to autopsy.
(h) Pending investigation, on 24.10.2008, A1 was arrested. He came forward to give confessional statement voluntarily. The same was recorded in the presence of P.W.5 and other witness. The admissible part of the confessional statement was marked as Ex.P.3, pursuant to which, he identified P.W.6 from whom M.O.3 was recovered. He further took the investigator and the witnesses including P.W.5 to P.W.7, Pawn Broker from whom M.Os. 4 & 5 were were recovered under a cover of mahazar. Thereafter, A2 was arrested from whom M.O.6, one of the bangle belonged to the deceased was recovered. A1 also produced M.O.8 rope which was recovered under a cover of mahazar. Then, both the accused were sent for judicial remand.
(i) All the material objects recovered from the place of occurrence was sent for analysis and the reports were received and produced before the Court. On completion of the investigation, the investigating officer filed a final report.
(j) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 15 witnesses and relied on 19 exhibits and 11 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under section 313 Cr.P.C. procedurally and the accused denied them as false. No defence witness was examined. The Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt as against both the accused and rendered the judgment of conviction and sentence referred to above. Aggrieved, A1 has brought forth this appeal before this Court.
3. Advancing the arguments on behalf of the appellant, the learned Senior counsel would submit that the case of the prosecution was that the occurrence has taken place between 12 to 16 hours on 22.10.2008 in which the wife of P.W.1 by name one Mayammal was murdered and her jewels were robbed. In order to substantiate the charges, the prosecution had no direct evidence to offer. It relied upon the circumstantial evidence. The two witnesses were examined by the prosecution namely P.W.15 and P.W.4. According to P.W.15, he found the deceased and also A1 and A2 at or about the time and nearby the place of occurrence on 22.10.2008. According to P.W.4, she found A1 and A2 coming from the banana garden at or about the time of occurrence. Thus, the prosecution made an attempt to show that the deceased was in the company of the accused at the time and place of occurrence. Though P.W.15 would claim that he have seen the deceased in the company of the accused and P.W.4 would claim that he saw only the accused at or about the place of occurrence on 22.10.2008, they have not whispered for a period of two days to anybody and their statement were recorded only on 24.10.2008. The investigator would claim that A1 was arrested on 24.10.2008 and thus, it would be quite indicative of the fact that the statement of these witnesses P.Ws.15 and 4 would have been prepared to suit the prosecution case. Thus, the conduct of P.Ws. 4 and 15 for not speaking about the last seen theory for a period of two days would clearly indicate that they have come with a false story.
4. Insofar as the other part of the evidence namely, the arrest and recovery of the material objects from A1, pursuant to the confessional statement was highly doubtful. The investigator would claim that he prepared the observation mahazar Ex.P2 on the very day. A reading of the observation mahazar would indicate that the word "accused" was found struck off. The trial Court should have accepted the defence plea that A1 was arrested on the very day of occurrence and was kept in police custody and the claim of the investigator that he was arrested only on 24.10.2008 cannot but be false.
5. Added circumstances is the recovery of M.O.8 rope. The investigator would claim that the first accused produced M.O.8 on 24.10.2008 after giving the confessional statement voluntarily but the rope was actually found in the photographs taken by the photographer of the prosecution at the place of the occurrence. Thus, the recovery pursuant to the confessional statement would become false. So far as the recovery of jewels were concerned, those witnesses have taken for service in order to strengthen the prosecution case. Except the above circumstances, the prosecution had no further evidence to offer. Under such circumstances, the trial Court should have acquitted the accused but has taken an erroneous view. Hence, the appellant/A1 is entitled for acquittal in the hands of this Court.
6. The Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made.
7. It is not in controversy that one Mayammal wife of P.W.1 was done to death in an incident that had taken place on 22.10.2008 during noon hours. After the dead body was found by P.W.1, he gave a complaint Ex.P1 to the respondent Police and a case came to be registered directly under Section 302 IPC. P.W.14, investigating officer conducted inquest on the dead body and pursuant to the requisition given, the dead body was subjected to post mortem. P.W.10, doctor conducted autopsy on the dead body and gave his opinion in Ex.P.10. post mortem certificate that Mayammal died out of asphyxia due to the antemortem injuries on the neck. The cause and time of death as putforth by the prosecution was never disputed by the appellant before the trial Court or before this Court. Therefore, no impediment is felt by this Court in recording so.
8. In order to substantiate that the accused/appellant along with other accused have caused the death of Mayammal and robbed the jewels, the prosecution had no direct evidence to offer. It relied mainly upon three circumstances. The first circumstance was the evidence of P.W.15, a native of the said village. On the date of occurrence at about 12.00 noon., P.W.15 found the deceased proceeding towards her banana garden and she was followed by both the accused within 5 to 6 feet distance and thereafter, he went home. The second circumstance was evidence of P.W.4. According to P.W.4, on the date of occurrence at about 12.30 hours, she found A1 and A2 coming from the banana garden of P.W.1 and when she questioned them, A1 answered that they came to pluck banana flower but they could not pluck due to the height and hence, they were returning. Thus, from the evidence of P.W.15 it would be quite clear that both the accused were found in the company of the deceased at or about the time prior to the occurrence and P.W.4 had seen both the accused alone in the banana garden and not the deceased. So far as the last seen theory is concerned which was spoken to by P.Ws.15 and 4, there cannot be any impediment in accepting their evidence. 9. The learned counsel made a comment that P.Ws. 15 and 4, have kept silent for a period of two days till 24.10.2008. This comment cannot be countenanced for the simple reason that the witnesses would speak about those fact if they entertain any suspicion in their mind. As could be seen from the available materials, P.W.1 came from Erode at 4.00 or 4.30 p.m. and since he found his wife missing, he enquired the witnesses about his wife. He further enquired A1 also who was a tenant in his house. A1 has replied that he had last seen the deceased at about 12.45 p.m. and thereafter, he went to Erode and that time only he was coming back. It would be quite clear that A1 has come forward to give false explanation as if he was absent.
10. It is further to be pointed out that it was A1 who accompanied P.W.1 in making a search of the deceased. Further, it was A1 who took the dead body from the canal on 22.10.2008. A1 was all along with P.W.1 and other witnesses and even at the time of initial investigation, he was present. Hence, P.W.1 or P.W.4 or P.W.15 could not entertain any suspicion in view of the conduct which was exhibited by A1. Hence, there was no occasion either for P.W.15 or P.W.4 to speak about the last seen theory.
11. The next strong circumstance coupled with the above circumstances, is the recovery of the material objects which were all the ornaments worn by the deceased. Even in the complaint given by P.W.1, he has categorically stated that the jewels worn by Mayammal were missing. From the evidence of P.W.1, it would be quite clear that when the investigator entertained suspicion and made interrogation, A1 came forward to give confessional statement voluntarily and the same was recorded. Following the confessional statement, he took the investigator first to P.W.6 friend of A1 from whom M.O.3 gold thali was recovered under a cover of mahazar Thereafter, he identified P.W.7 pawn broker from whom M.Os. 4 and 5 gold ornaments attached to Thali were recovered. These material objects were all recovered in the presence of P.W.5 and other witness. P.W.5 has categorically deposed to that effect.
12. Added circumstance is the evidence of P.Ws.6 and 7. They have clearly spoken to the fact that it was A1 who handed over those gold ornaments to them. The recovery of the jewels were made on 24.10.2008, while the occurrence has taken place on 22.10.2008. Thus, within a short span of two days, all the jewels worn by the deceased were recovered at the instance of A1, following the confessional statement. In this regard, the appellant/A1 had no explanation to offer how he came into custody of those jewels. Now, it is a fit case where the Court can draw the presumption available under section 114 of Indian Evidence Act. The last seen theory and the custody of the jewels of the accused would clearly indicate the fact that the appellant/A1 is involved in the crime of murder and robbery of jewels.
13. The comment made by the learned counsel for the appellant that there was a word 'accused' found in the observation mahazar originally, and subsequently, the word 'accused' struck off , therefore, when the observation mahazar was prepared, A1 was in the police custody on 22.10.2008, cannot be accepted in view of the evidence adduced by the prosecution through P.W.5 and other witnesses. The further comment made by the learned counsel that the photographs were taken in respect of rope from the place of occurrence, hence, the claim of the investigation as if M.O.8 rope was recovered pursuant to the confessional statement given by A1, has got to be rejected is concerned, it is true that in the photographs taken by the photographer there was a rope but there is nothing to indicate that it was the rope which was actually used at the time of occurrence. P.W.5's evidence clearly show that A1 produced M.O.8 rope. So long as necessary questions were not put in this regard by the accused, such a contention cannot be countenanced.
14. All the above would clearly indicate that the accused/appellant taking advantage of the solitariness of the deceased had murdered her and robbed her jewels along with the other accused. Under such circumstances, the trial Court is perfectly correct in finding the accused/appellant guilty of the charge of murder and also causing robbery of jewels. This court does not find anything factually or legally to interfere with the same.
15. the result, the appeal fails and the same is dismissed confirming the conviction and sentence passed by the trial Court.
vsi
To
1. The Principal Sessions Judge of Erode Division at Erode
2. The Inspector of Police,
Kodumudi Police Station,
Karur,
Erode District
3. The Public Prosecutor,
High Court,
Chennai
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