IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.02.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH Criminal Appeal Nos.630 of 2005 and 80 of 2006 Govindhan Appellant (A-2) in S/o Ponnusamy Nadar .. Crl.A.No.630/05 Thikkuvayan @ Gopi Appellant (A-1) in S/o Krishnasamy Nadar .. Crl.A.No.80/06 -vs- State rep.by Inspector of Police Hosur Town Police Station Dharmapuri District Respondent in both (Crime No.139/2004) .. the Crl.Appeals Memorandum of Grounds of Criminal Appeals under Section 374(2) of the Criminal Procedure Code against the judgment dated 30.6.2005 made in S.C.No.246 of 2004 on the file of the learned I Additional Sessions Judge, Dharmapuri at Krishnagiri. For Appellants :: Mr.V.Rajamohan for A-2/Appellant in Crl.A.No.630 of 2005 Mr.R.Shunmugasundaram Senior Counsel for Mr.S.Anand Raj for A-1/Appellant in Crl.A.No.80 of 2006 For Respondent :: Mr.V.R.Balasubramanian Addl. Public Prosecutor JUDGMENT
D.MURUGESAN, J.
The appellant in Criminal Appeal No.630 of 2005 is A-2 and the appellant in Criminal Appeal No.80 of 2006 is A-1 in S.C.No.246 of 2004 on the file of the I Additional Sessions Judge, Dharmapuri at Krishnagiri. Both the appellants were put on trial for the offence under Sections 364, 302 and 302 read with 201 IPC. However, the appellants were acquitted of the offence under Section 364 IPC, but were convicted for the offence under Sections 302 and 302 read with 201 IPC and each was sentenced to undergo life imprisonment and also to pay a fine of Rs.5,000/- in default to undergo one year rigorous imprisonment for the offence under Section 302 IPC and to undergo three years rigorous imprisonment and also to pay a fine of Rs.1,000/- in default to undergo three months rigorous imprisonment for the offence under Section 302 read with 201 IPC and the sentences are to run concurrently. Hence these appeals.
2. The prosecution put both the appellants-accused on trial on the following facts:-
The deceased had borrowed a sum of Rs.1,500/- from A-1 by name Thikkuvayan @ Gopi. Just one week prior to the date of occurrence i.e., on 22.2.2004, A-1 beat the deceased-Palani for non-payment of the said amount to him. Thereafter, on 29.2.2004, A-1 came to the house of the deceased and demanded the re-payment and the deceased collected Rs.20/- from his wife, P.W.3 and went along with A-1. As the amount was not repaid by the deceased, A-1, with an intention to kill the deceased, committed the murder. Likewise, the deceased had quarrelled with A-2 in the fish market and therefore there was enmity between them, as spoken to by P.W.14.
3. Thereafter, the menial of P.W.1, the Village Administrative Officer informed him on 1.3.2004 at 8.30 a.m., that a body was found in the gunnysack tied with a synthetic wire near the Thevar lakebund. P.W.1 went to the spot and found the body of the deceased as identified by P.W.2, the younger brother of the deceased. Immediately he went to Hosur Town Police Station and lodged the complaint, Ex.P-1 before P.W.16, the Sub Inspector of Police at 10.00 a.m., on 1.3.2004, which was registered in Cr.No.139 of 2004 for the offence under Sections 302 and 201 IPC. The First Information Report is Ex.P-18. He forwarded the express reports to the Court as well as to the higher police officials.
4. P.W.17, the Inspector of Police took up investigation in the case and proceeded to the scene of occurrence at 11.00 a.m., and prepared an Observation Mahazar, Ex.P-2 and also drew a rough sketch, Ex.P-19 in the presence of P.W.5 and another witness. He also caused photographs of the scene place. Thereafter, he conducted inquest on the body of the deceased between 12.00 noon and 3.00 p.m., in the presence of panchayatdars and witnesses and prepared the inquest report, Ex.P-20. He sent the body through the Head Constable, P.W.15 to the Hosur Government Hospital along with a requisition, Ex.P-13 to the doctor for conducting post-mortem.
5. P.W.9, Assistant Surgeon attached to the said hospital, commenced post-mortem at 4.30 p.m., on 1.3.2004 on the body of the deceased and he noted the following external injuries:-
“1. 7cm x 1 cm x 1.5cm laceration over the upper occipital area.
2. 8cm x 1cm x 1.5cm lacerated 1cm below the 1st injury.
3. 10cm x 1cm x 1.5cm laceration 2cm below the 2nd injury.
4. 12cm x 1.5cm x 1.5cm laceration over the same size 2cm below the 3rd injury.
5. 15cm x 2cm x bone expose brain matter. Expose injury 1cm below the 4th injury.
All external injuries are horizontal in nature.
6. 3cm x 2cm x 10cm stab wound over the same site 1cm below right side the 5th injury.
7. 3cm x 3cm contusion left lower back.”
He issued the post-mortem certificate, Ex.P-14 with his opinion that the deceased died of hypovolumic shock, seven head injuries, neurological shock 12 to 16 hours prior to post-mortem.
6. P.W.17, continuing with his investigation, examined the other witnesses and recorded their statements. He seized the bloodstained gunnysack, M.O.1, bloodstained blanket, M.O.2, bedsheet, M.O.3, one metre bloodstained synthetic wire, M.O.4, bloodstained earth, M.O.5 and sample earth, M.O.6 under the mahazar, Ex.P-3 in the presence of P.W.5 and another witness. He also seized the bloodstained full slack shirt, M.O.14, bloodstained pant, M.O.15 and the bloodstained waist cord, M.O.16 worn by the deceased under the mahazar, Ex.P-17. He searched for the accused. On 6.3.2004 at 6.00 a.m., he arrested A-1 near Hosur Royakottai Road Temple and in pursuance of the admissible portion of the confessional statement of A-1 under Ex.P-11, he recovered the bloodstained pant, M.O.8, bloodstained full slack shirt, M.O.9, bloodstained billhook, M.O.10, cricket stump, M.O.11, bloodstained plaster, M.O.12 and sample plaster, M.O.13 under the mahazar, Ex.P-10 in the presence of P.W.8, the Village Administrative Officer and another witness. He also arrested A-2 and recorded his confessional statement under Ex.P-12. He prepared an Observation Mahazar, Ex.P-9 and also drew a rough sketch, Ex.P-21 of the place of occurrence as identified by A-2 in the presence of the said witnesses. He brought the accused to the police station and remanded them to judicial custody. He sent the seized material objects for chemical examination through the Court. He examined the other witnesses and recorded their statements. After completing investigation on 26.3.2004 and after getting legal opinion, he laid the final report against the accused for the offence under Sections 364, 302 and 201 IPC before the Court.
7. In order to bring home the charges against the accused, the prosecution examined 17 witnesses, marked 21 exhibits and produced 16 material objects.
8. When the accused were questioned under Section 313 of the Criminal Procedure Code as to the incriminating materials appearing against them, they denied them as false. No witness was examined and no document was marked on the side of the defence. However, the learned trial Judge found the accused guilty, convicted and sentenced them for the offence as stated earlier. Hence the present appeals.
9. Mr.R.Shunmugasundaram, learned senior counsel appearing for the appellant (A-1) in Criminal Appeal No.80 of 2006 has submitted that the entire case of the prosecution stands only on the circumstantial evidence. He would submit that the first circumstance relied upon by the prosecution is the money transaction between A-1 and the deceased. The said fact is spoken to by P.W.3, the wife of the deceased. Though P.W.2 has also spoken about the same, it is only a hearsay evidence. Though P.Ws.2,3 and 4 have spoken about the circumstances and were aware of the murder of the deceased even on the morning of 1.3.2004, no one has chosen to lodge a complaint implicating the accused, as Ex.P-1 does not refer to the name of the accused. Secondly, P.W.3 has spoken about the last seen theory i.e., on the evening of 29.2.2004 the deceased had gone along with A-1 and thereafter the deceased was found dead. All the three witnesses namely, P.Ws.2,3 & 4 were examined during inquest on 1.3.2004, but strangely their statements in the inquest reached the Court only on 3.3.2004. Hence, according to the learned senior counsel, it is highly unsafe to rely on the first circumstance namely, the borrowal of money and the non payment of the same by the deceased and the last seen theory as spoken to by P.W.3. He would also submit that the second circumstance relating to last seen theory is projected by the prosecution through P.W.11. But P.W.11, examined to prove the last seen theory, had turned hostile.
10. So far as the evidence of the other witnesses namely, P.Ws.12 and 13 to speak about the last seen theory is concerned, their evidence cannot be believed in view of the fact that they belong to the same village and though they have claimed to have seen the deceased in the company of A-1 lastly, they have not whispered anything about the last seen theory to the villagers and kept quiet till they were examined by the police on 6.3.2004. Hence their evidence is highly doubtful and unsafe. That apart, their statements reached the Court only on 6.4.2004 i.e., after one month of the occurrence, throwing a serious doubt about their evidence.
11. Mr.V.Rajamohan, learned counsel appearing for the appellant (A-2) in Criminal Appeal No.630 of 2005 has submitted that there is no incriminating material produced by the prosecution to prove the guilt of A-2 except the last seen theory. The learned counsel also submitted that there is no motive attributed on the part of A-2 and no recovery has also been effected from him. Hence the learned counsel submitted that A-2 is entitled for an acquittal, as the prosecution has failed to prove its case against him.
12. Per contra, Mr.V.R.Balasubramanian, learned Additional Public Prosecutor would submit that the case of the prosecution must be traced and considered from the stage of recovery. P.W.8 is a mahazar witness for the recovery and there is no reason to discard his evidence. He would also submit that the bloodstained earth and the material objects, M.Os.8 to 13 were recovered from the house of A-1 in pursuance of the admissible portion of his confession and all the above material objects contained human bloodgroup ‘A’, which tallied with the bloodgroup of the deceased. Hence the recovery has been established. He would further submit that as the Village Administrative Officer, P.W.1 had given the complaint, there was no occasion for P.W.2 to specifically name the accused. In fact, during inquest, P.Ws.2,3 & 4 have stated about the enmity between the deceased and the accused regarding the money transaction and the inquest report reached the Court on 2.3.2004 itself. In the light of the strong evidence of recovery, the mere delay of one day would not vitiate the prosecution case and for that reason, the evidence of P.Ws.1 to 4 and 10 cannot be discarded in toto even though they have not spoken about the last seen theory to the investigating officer at the earliest point of time. Hence the prosecution has proved its case beyond reasonable doubt against the accused.
13. We have considered the rival contentions carefully. At the outset, we would like to mention that law is well settled that in a case of circumstantial evidence, the prosecution must prove each and every link in a complete manner so as to complete the chain of circumstance. As rightly pointed out by the learned Additional Public Prosecutor, the evidence of the prosecution witnesses must be considered keeping firstly the circumstance on the recovery aspect. P.W.8, the Village Administrative Officer has spoken about the recovery of M.Os.8 to 13. All the material objects recovered from the house of A-1 contained human blood of ‘A’ group. In the wake of the recovery of even the bloodstained earth from the house of A-1, we have no hesitation to come to the conclusion that the involvement of A-1 in the occurrence to be the first circumstance.
14. P.W.3, the wife of the deceased, has spoken about the enmity between the deceased and A-1 as to the non-payment of Rs.1,500/- and the fact that A-1 had beaten up the deceased on 22.2.2004. She had also spoken about the last seen theory as to the deceased accompanying A-1 on 29.2.2004 and he was found dead on the next day morning. That apart, P.Ws.2,3 & 4 have been examined during inquest on the same day between 12.00 noon and 3.00 p.m., and they have specifically referred to the said fact in the inquest report. The inquest report is questioned on the ground that it reached the Court only on 3.3.2004. It is not a general rule that in all cases where there was a delay the case of the prosecution must be doubted. The body of the deceased was found at 8.30 a.m., on 1.3.2004 and the complaint, Ex.P-1 was given by P.W.1, the Village Administrative Officer at 10.00 a.m., on the same day which was registered under Sections 302 and 201 IPC. The inquest was conducted immediately between 12.00 noon and 3.00 p.m., and the witnesses namely, P.Ws.2 to 4 were also examined. During inquest, they have specifically referred to the last seen theory of having seen the deceased in the company of A-1 and we have no hesitation to accept the case of the prosecution as to the last seen theory. The inquest report was sent to the Court and it reached the Court on the next day itself. Delay of one day cannot be considered to affect the prosecution case, especially in the wake of the recovery from A-1.
15. So far as the motive is concerned, it is spoken to by P.W.3 to the effect that one week prior to the date of occurrence, A-1 met the deceased for non payment of the sum of Rs.1,500/-. Of course, P.W.2 was also examined to prove the above, but the statement of P.W.2 was only hearsay. On 29.2.2004, the date of occurrence, A-1 came to the house of the deceased and demanded the payment of the said amount. This is spoken to by P.W.3, the wife of the deceased, as well. Thereafter, the deceased went along with A-1. The dispute is only for non payment of the sum of Rs.1,500/- by the deceased to A-1 and for the said reason only, A-1 had committed the offence of murder. Hence the prosecution has established its case as to the motive and recovery beyond reasonable doubt against A-1.
16. So far as A-2 is concerned, except the last seen theory, there is no evidence on record either as to the motive or as to the recovery made from him. In these circumstances, it would be highly unsafe to hold that A-2 is also guilty solely on the basis of the last seen theory without there being any other incriminating material put against him.
17. For the aforesaid reasons, A-2 is acquitted of the charges and the Criminal Appeal No.630 of 2005 is allowed. Bail bonds executed by A-2 shall stand terminated and the fine amount, if any, paid by him is ordered to be refunded.
18. As the prosecution has proved its case beyond reasonable doubt against A-1, Criminal Appeal No.80 of 2006 is dismissed confirming the judgment of the learned trial Judge. It is seen from the records that the appellant (A-1) in Criminal Appeal No.80 of 2006 is on bail. The learned I Additional Sessions Judge, Dharmapuri at Krishnagiri is directed to take steps to secure the presence of A-1 and commit him to prison to undergo the sentence imposed.
Index : yes (D.M.,J.) (V.P.K.,J.) Internet: yes 20.02.2008 ss To 1. The I Additional Sessions Judge, Dharmapuri at Krishnagiri 2. -do- thru' the Principal Sessions Judge, Dharmapuri at Krishnagiri 3. The Judicial Magistrate No.II, Hosur 4. -do- thru' the Chief Judicial Magistrate, Dharmapuri at Krishnagiri 5. The Superintendent, Central Prison, Vellore 6. The Superintendent, Central Prison, Salem 7. The Public Prosecutor, High Court, Madras 8. The District Collector, Dharmapuri at Krishnagiri 9. The Director General of Police, Chennai 10.The Inspector of Police, Hosur Town Police Station, Krishnagiri D.MURUGESAN, J. & V.PERIYA KARUPPIAH, J. Judgment in Crl.A.Nos.630 of 2005 & 80 of 2006 20.02.2008