BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05/04/2007 CORAM: THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR CRL.A.160 of 2005 Arumuga Boyan ... Appellant Accused No.1 Vs State,rep. by Inspector of Police, Palani Taluk Police Station Dindigul District. ... Respondent Complainant Appeal under Section 374 of the Code of Criminal Procedure against the judgment, dated 15.12.1999, of the learned Additional Sessions Judge, Dindigul in S.C.No.80 of 1996. !For Appellant : Mr.L.Shaji Chellan, For Mr.K.Subburam ^For Respondent : Mr.N.Senthurpandian, Addl.Public Prosecutor. :JUDGMENT
(Judgment of the Court was delivered by P.R.SHIVAKUMAR,J)
The first accused in a murder case, who stood charged along with one
Vanchiappan, the second accused, tried and found guilty as per the charge for
the offences of murder and robbery punishable under Sections 302 and 397 IPC and
awarded a sentence of life imprisonment and a fine of Rs.1,000/- for an offence
punishable under Section 302 IPC and a sentence of seven years rigorous
imprisonment and a fine of Rs.1,000/- for an offence punishable under Section
397 IPC with default sentences by the Judgment of the Additional Sessions Judge,
Dindigul in S.C.No.80 of 1996 by the Judgment dated 15.12.1999, has come forward
with this appeal, challenging the conviction recorded against him and the
sentence imposed on him.
2. In brief, the case of the prosecution can be stated as follows:
(i) P.W.1 is the paternal uncle of the deceased Krishnamoorthy. P.W.2 is
the wife of the deceased. P.W.3 was working under P.W.1 as a cook during the
relevant period. P.Ws.5 and 6 were employees of Karuppasamy, another paternal
uncle of the deceased. One Vanchiappan (A-2) was a servant working under the
deceased. P.W.1 Arumugam Chettiar, Karuppasamy and the deceased were residing
in a farm house at a place called Chitthiraivel Garden situated at a distance of
two kilometres from Velayuthampalayamputhur. Arumuga Boyan, the appellant/A-1
was temporarily employed by the above said Karuppasamy for digging a well. On
20.10.1995, the deceased went to bed as usual. A-2, Vanchiappan went to the
room of the deceased in the morning of 21.10.1995 with a cup of coffee to be
served to the deceased. He found the deceased motionless when he made an
attempt to wake him up, became suspicious and hence informed P.W.1 Arumugam
Chettiar. Thereafter, P.W.1 Arumugam Chettiar went there, examined
Krishnamoorthy and found him dead. While the dead body of the above said
Krishnamoorthy was examined, a part of a chain usually worn by the deceased
marked as M.O.1 fell down. Immediately, he asked Vanchiappan, the second accused
to verify whether the money kept in the house by the deceased was safe, for
which Vanchiappan informed that the deceased was not in the habit of keeping
money elsewhere, but used to keep them in his pocket. He also informed P.W.1
Arumugam Chettiar that the previous day, the deceased was having two bundles of
50 rupees currency notes in his pocket. When P.W.1 Arumugam Chettiar searched
for the same, he found the cash was missing. Thereafter, P.W.7 Pananichamy, the
Village Administrative Officer was informed by P.W.1, expressing suspicion in
the death of the deceased Krishnamoorthy that he might have been murdered by A-1
Arumuga Boyan in order to steal the jewels. P.W.7 in turn, preferred a
complaint, which was marked as Ex.P.1 and handed over the same to P.W.18, the
Sub-Inspector of Police, Palani Taluk Police Station at about 02.15 p.m. on
21.10.1995. On the basis of the said complaint, P.W.18 registered a case in
Crime No.613 of 1995 under Section 174 Cr.P.C. and for an offence under Section
380 IPC and prepared Ex.P.13 First Information Report. P.W.19 the Inspector of
Police, Palani Taluk Police Station on receipt of a copy of the First
Information Report took up the investigation of the case, went to the scene of
occurrence, prepared Ex.P.2 observation mahazar and Ex.P.14 rough sketch,
conducted inquest over the dead body of Krishnamoorthy in the presence of the
witnesses and panchayatdars, prepared Ex.P.15 inquest report and then sent the
dead body to the hospital through a police constable with a requisition for
autopsy. On receipt of the requisition, P.W.15 Dr.Packiyam attached to the
Government Hospital, Palani conducted autopsy and issued Ex.P.12 Post mortem
report opining that the deceased appeared to have died of asphyxia due to
strangulation about 32 to 38 hours prior to autopsy. In the course of
investigation, M.Os.1,13 to 15 and 29 to 32 were seized under cover of a
recovery of mahazar Ex.P.9 by P.W.19.
(ii) After examining the witnesses on 21.10.1995 and Dr.Packiyam (P.W.15)
on 22.10.1995, the Investigating Officer altered the case into one for offences
punishable under Sections 302 and 380 IPC, prepared Ex.P.16 Express Report and
sent it to the Judicial Magistrate concerned. The appellant/A-1 was arrested on
23.10.1995 whereupon he gave a confession statement, the admissible portion of
which has been marked as Ex.P.3 and based on the same M.O.2 a gold ring with a
red colour stone, M.O.3 an ordinary ring and a sum of Rs.2,000/- (forty notes of
50 rupees denomination) marked as M.O.10 series were recovered under a mahazar
Ex.P.4. M.Os.7,34,35 and 36, the clothes and M.O.16 – wrist watch were also
recovered under the said mahazar, as it was informed by the appellant/A-1 that
they were purchased by him from various shops, using the amount stolen from the
deceased. After effecting recovery based on the information received from the
appellant/A-1, he was produced before the Judicial Magistrate concerned and
remanded to judicial custody. Likewise Vanchiappan, who had been arrayed as the
second accused, was arrested on 24.10.1995 at about 02.00 p.m. whereupon he gave
a confession statement, the admissible portion of which has been marked as
Ex.P.6 and handed over a sum of Rs.312/- from his pocket. The same was recovered
under a Mahazar Ex.P.7 (marked as M.O.12 series). M.Os.4 and 5 two pieces of a
gold chain and M.O.6, the hook of a chain were also recovered under a mahazar
Ex.P.8, as they had been allegedly concealed by A-2 in a burrow of a tree,
after putting them in a bag. Thereafter A-2 was also sent to the Court for
remand.
(iii) P.W.19, who continued the investigation and recorded the statements
of all the witnesses, completed his investigation and submitted a final report
alleging the commission of offences punishable under Sections 302 and 397 IPC by
the appellant herein/A-1 and offences punishable under Sections 302 r/w 34 IPC
and 397 IPC by the other accused, viz., A-2 Vanchiappan.
3. The case was committed to the Court of Session and necessary charges
were framed. In order to substantiate the charges, the prosecution examined as
many as 19 witnesses, marked 16 documents and produced M.Os.1 to 38. On
completion of the evidence on the side of the prosecution, the accused were
questioned under Section 313 Cr.P.C., as to the incriminating circumstances
found in the evidence of the prosecution witnesses. They denied them as false.
No witness was examined and no document was marked on the side of the accused.
4. The trial Court heard the arguments advanced on either side and took
the view that the prosecution had proved the case against both the accused
beyond reasonable doubt, found them guilty as per the charges and awarded
punishments as stated above.
5. As against the conviction recorded and the sentence, Vanchiappan, the
second accused preferred an appeal before the Principal Bench of Madras High
Court in Crl.A.No.176 of 2000 and the same happened to be allowed by a Division
Bench of the said Court on 21.03.2003 holding that the charges against him had
not been proved beyond reasonable doubt and that he was entitled to the benefit
of doubt. Consequently he was acquitted of all the charges.
6. As against the conviction recorded in respect of the appellant/A-1 and
the sentence awarded, the appellant/A-1 has preferred this appeal, citing
various grounds found in the memorandum of appeal.
7. Advancing arguments on behalf of the appellant/A-1, Mr.L.Shaji Chellan,
learned counsel made the following submissions:
There was no eye witness to the occurrence and the prosecution case was
rested entirely on circumstantial evidence. The circumstances relied on by the
prosecution do not form a complete chain of events, so as to bring home the
guilt of the appellant/A-1 beyond reasonable doubt. The motive alleged by the
prosecution was that there was a dispute regarding the payment of wages. On the
other hand, the evidence adduced was to the effect that the appellant/A-1 was an
employee of one Karuppasamy, paternal uncle of the deceased and not an employee
of the deceased. It was Vanchiappan/A-2, who was under the employment of the
deceased Krishnamoorthy. The specific case of the prosecution is that the
appellant/A-1 and Vanchiappan/A-2 jointly caused the death of the deceased; that
Vanchiappan/A-2 squeezed the scrotum of the deceased, while the appellant
throttled and caused the death of the deceased and that both of them, after
causing the death of the deceased Krishnamoorthy, removed the jewels worn by him
and the money that was found in possession of the deceased and shared them among
themselves. In the present case, in order to bring home the guilt of the
accused, the prosecution mainly relied on last seen theory coupled with the
alleged arrest, confession statement and recovery. Even though the above said
Vanchiappan/A-2 was also convicted along with the appellant herein/A-1 by the
trial Court, the said Vanchiappan/A-2 was subsequently acquitted by a Division
Bench of this Court, allowing his appeal, viz., Crl.A.No.176 of 2000. Thus the
case of the prosecution as against the appellant/A-1 should be treated on par
and the appellant/A-1 also should be held entitled to an order of acquittal in
the hands of this Court.
8. The learned counsel for the appellant in addition to the above said
contentions has also made the following submissions in support of his arguments
for the acquittal of the appellant/A-1:
The last seen theory propounded by the prosecution must necessarily fail,
in view of the contradictory versions of P.W.1, P.W.4 and P.W.5 regarding the
house in which P.W.4 was witnessing T.V. Programme before he allegedly saw the
appellant/A-1 near to place of occurrence at about 02.00 a.m. and asked about
the purpose of his presence there at odd hours. Apart from the said discrepancy,
the prosecution story of arrest and recovery should be disbelieved, as there are
evidence to show that the Investigating Agency, unable to fix the culprits, at
the first instance, took all the farm servants to custody on suspicion. If at
all the Investigating Officer had been informed of the suspicious presence of
the appellant/A-1 in the scene of occurrence during night hours and of his
suspected involvement in the commission of the crime, others would not have been
taken into custody on suspicion and thus it is obvious that the last seen theory
could be only a subsequent introduction. Even assuming that the prosecution
version regarding arrest and recovery can be believed, the same would, at best,
be sufficient to hold the appellant guilty of an offence punishable under
Section 411 IPC and not an offence of murder punishable under Section 302 IPC
and hence the conviction for murder under Section 302 IPC and the sentence
imposed are liable to be set aside, with the result that the appellant is
entitled to an acquittal in the hands of this Court for the offence of murder.
9. The Court heard the Additional Public Prosecutor on the above said
contentions made on behalf of the appellant/A-1 and paid its anxious
considerations on the submissions made.
10. The appellant/A-1 did not dispute before the trial Court the cause of
death of the deceased Krishnamoorty. After the death was reported to the police
and the case was registered, the Inspector of Police took up the investigation,
went to the place of occurrence, conducted an inquest over the dead body of the
deceased and prepared Ex.P.15 inquest report in the presence of the witnesses
and Panchayatdars. The body was also sent to the hospital with a requisition for
autopsy. On receipt of requisition for autopsy Ex.P.11, P.W.15, the Assistant
Surgeon attached to the Government Hospital, Palani conducted autopsy, noted the
injuries found on the dead body and issued Ex.P.12 post mortem certificate,
opining that the deceased appeared to have died of asphyxia due to strangulation
about 32 to 38 hours prior to autopsy. Discharge of blood through the nostrils,
swelling in the eyelids and scrotum, an abrasion on the left side of the chin
measuring 0.5 cm. X 0.5 cm and a contusion over the left side of the neck
measuring 4 cm x 4 cm were also found and noted by the Medical officer, P.W.15.
The left horn of the hyoid bone was also found fractured. The medical evidence
discussed above conclusively establish that the death of the deceased
Krishnamoorthy was the result of manual strangulation and was thus the result of
an act of the homicidal violence. Besides the fact that the deceased died due
to asphyxia caused by strangulation, an act of homicidal violence was not
questioned by the appellant/accused No.1 at any stage of the proceedings. Hence
the same has got to be recorded so without any impediment whatsoever and the
finding of the trial Court in this regard deserves to be confirmed.
11. In instance case, the story of the prosecution is that the
appellant/A-1 murdered the deceased Krishnamoorthy with the help of A-2
Vanchiappan, removed the ornaments and cash kept by the deceased and shared them
between themselves. It is true that the appellant/A-1 and Vanchiappan/A-2 were
convicted by the trial Court and on a separate appeal preferred by the above
said Vanchiappan/A-2, a Division Bench of this Court allowed the appeal and
acquitted A-2 of the charges against him. But the arguments advanced by the
learned counsel for the appellant/A-1 seeking parity of treatment of his case
with that of Vanchiappan/A-2 cannot be sustained either in law or on facts. It
is a well known principle that the acquittal of one of the co-accused in a given
case, need not necessarily result in the acquittal of the other accused persons.
In the case on hand, the overt act alleged against Vanchiappan/A-2 was that he
shared the common intention with the appellant herein/A-1 to kill
Krishnamoorthy, helped the appellant/A-1 in executing the common intention by
squeezing the scrotum of the deceased while the appellant/A-1 throttled and
caused the death of Krishnamoorthy and thereafter shared the jewels and cash
removed from the deceased Krishnamoorthy. Even though the last seen theory could
be equally applied against A-2, since the alleged arrest, confession statement
of A-2 and the consequential recovery made based on the information received him
were disbelieved, the Division Bench of this Court held that the circumstantial
evidence was not enough to form a complete chain of events so far as A-2 was
concerned, entertained doubt over the prosecution case as against A-2
Vanchiappan and hence chose to acquit him giving the benefit of doubt. It is
pertinent to note that the acquittal of A-2 was not an honourable acquittal but
was one on the basis that the benefit of doubt should go to the accused person.
Therefore, the above said contention put forth by the learned counsel for the
appellant that the appellant should be acquitted simply because Vanchiappan/A-2
was acquitted does not merit acceptance of the Court and the same deserves to be
rejected.
12. This Court should also necessarily discredit the further contention of
the learned counsel for the appellant attacking the Judgment of the trial Court
on the ground that there were discrepancies in the case of the prosecution
regarding motive and last seen theory, so far as the appellant was concerned. In
fact the discrepancies and contradictions pointed out by the learned counsel for
the appellant are not discrepancies or contradictions at all and they should be
disregarded as trivial, if at all they are to be termed discrepancies. The
learned counsel for the appellant pointed out that Vanchiappan/A-2 alone was
employed under the deceased. But on the other hand, according to the final
report, the case of the prosecution was that the dispute regarding the payment
of wages between the appellant and the deceased happened to be the motive for
the occurrence. A close scrutiny of the evidence adduced on the side of the
prosecution reveals that the said contention made on behalf of the appellant is
untenable. Clear evidence has been adduced to the effect that the appellant/A-1
was temporarily employed by Karuppasamy, the paternal uncle of the deceased,
for digging a well and that it was Vanchiappan/A-2, who was under the employment
of the deceased. Clear evidence has also been adduced to the effect that the
appellant/A-1 was not paid by the above said Karuppasamy even for the work done
till the date of occurrence; that the appellant/A-1 was hard pressed for money
and was facing a threat from the owner of the crane hired for digging the well
for the removal of the same from the site for non-payment of hire charges; that
the appellant/A-1 approached the deceased to help him financially to ward off
the above said difficulty and the same was turned down by the deceased and that
when the appellant shared his agony with Vanchiappan/A-2, it was, he who
informed the appellant that there had been change in the attitude of the
deceased towards A-2 Vanchiappan, in so far as he unusually started asking for
the account of the money entrusted with A-2 for specific purposes periodically.
According to the prosecution version, as revealed by the evidence adduced on the
side of the prosecution, the motive for the alleged occurrence, so far as the
appellant is concerned, was wrongful gain, as he was hard pressed for money.
Therefore, the contention of the learned counsel for the appellant that the
motive part of the prosecution case as against the appellant is concerned should
be rejected, has got to be discountenanced.
13. The learned counsel for the appellant/A-1 has made an attempt to
project, as if there were two versions regarding the lodging of the complaint.
According to the learned counsel for the appellant, P.W.1 admitted to have given
the complaint to the police in the scene of occurrence, whereas according to the
prosecution case, it was P.W.7, the Village Administrative Officer who lodged
the complaint with the police, after being informed by P.W.1 followed by his
visit to the scene of occurrence. This Court paid its attention to the above
said submission made by the learned counsel for the appellant/A-1 and
scrutinised the evidence of P.W.1, P.W.7 and P.W.18, the Sub-Inspector of Police
who registered the case, based on the complaint lodged by P.W.7, the Village
Administrative Officer. This Court also perused Ex.P.1 complaint and Ex.P.13,
First Information Report. When the above said evidence both oral and documentary
are marshalled in a proper perspective, this Court is unable to accept the above
said contention raised by the learned counsel for the appellant/A-1. At the
first instance, it is the clear and cogent evidence of P.W.1 that he met the
Village Administrative Officer and informed him orally; that the Village
Administrative Officer asked him to go and remain in the scene of occurrence,
informing him that he would come there and collect information; that thereafter,
the Village Administrative Officer went to the place of occurrence and that
after seeing the dead body, the Village Administrative Officer went to the
police station and gave the complaint and that only thereafter the police came
to the place of occurrence at about 04.00 p.m. The said testimony of P.W.1
stands fully corroborated by the testimony of P.W.7, P.W.18 and the documentary
evidence, viz., Ex.P.1 and Ex.P.13. P.W.7 has, in clear and unambiguous terms,
stated that at about 12 noon on 21.10.1995, P.W.1 met him and informed him of
the incident, pursuant to which, he went to the place of occurrence at about
01.00 p.m., thereafter proceeded towards the police station and gave the written
complaint Ex.P.1 at about 02.15 p.m. He has also given a clear explanation for
not recording the statement of P.W.1, to make the same the basis of the First
Information Report. It is true that P.W.1, during cross-examination, admitted
that the police came to the place of occurrence and obtained the complaint
statement from him. But the same is nothing but a misconception made by him
regarding the nature of statement recorded by the Investigating Officer in the
scene of occurrence. He seems to have mistaken Section 161 statement recorded
by the Investigating Officer to be the complaint statement. Thus, according to
the considered view of this Court, there is no contradiction or discrepancy in
the evidence adduced on the side of the prosecution regarding the lodging of the
complaint, as claimed by the learned counsel for the appellant/A-1 and the above
said contention raised by the learned counsel for the appellant/A-1 does not
merit any acceptance by this Court.
14. The further contention raised on behalf of the appellant that the
complaint could have been created after preliminary investigation and
deliberation, also does not deserve any acceptance by this Court. According to
the learned counsel, A-2 Vanchiappan and other servants present in the farm
house could not have been taken into custody by the police on suspicion, if at
all Ex.P.1 would have come into existence at the time and place and in the
manner as spoken to by the prosecution witnesses, since a suspicion against the
appellant/A-1 alone had been spelt out in the said complaint. The Court is
unable to accept the said contention for the simple reason that the suspicion
was not only against the appellant herein/A-1 but also against A-2 Vanchiappan,
who stood charged for the alleged offences along with the appellant herein.
Moreover, there was no clear assertion in the complaint Ex.P.1 that the
appellant/A-1 alone might have committed the crime. It had been simply stated in
the complaint that the involvement of the appellant/A-1 in the commission of the
crime was suspected. The same will not be enough to rule out the involvement of
A-2 Vanchiappan or others also in the commission of the offences along with the
appellant/A-1. Therefore, no inference could be made in this regard, as
contended by the learned counsel for the appellant/A-1.
15. The next contention raised by the learned counsel for the appellant/A-
1 is that the evidence of P.W.1 and P.W.4 adduced in support of the last seen
theory propounded by the prosecution should be rejected, in the light of vital
contradictions found in the evidence of the prosecution witnesses. The
contradiction pointed out by the learned counsel for the appellant/A-1 are as
follows:
P.W.4 Pattan @ Pattappa Nadar is alleged to have seen the appellant/A-1
sitting on a grinder stone near the cot on which the deceased was sleeping at
about 02.00 a.m on 21.10.1995 and asked him about his presence at odd hours in
the said place, for which the reply from the appellant/A-1 was that he had
sought protection from rain, as it was raining. In order to explain the
circumstances under which P.W.4 happened to be in the said place, he has stated
that he was returning after witnessing TV programme in the house of P.W.1
Arumugam Chettiar. On the other hand, P.W.1 would state that TV was available
both in his house and the house of Karuppasamy. But it was in the house of
Karuppasamy, P.W.4 was witnessing the TV programme. At this stage, it is the
evidence of P.W.5 Shanmugam that TV was available only in the house of P.W.1 and
not in the house of Karuppasamy. The above said discrepancies regarding the
availability of a television in the farm house of Karuppasamy will affect the
veracity of P.W.4, who claimed to have seen the appellant/A-1 at about 02.00
a.m. in the scene of occurrence.
16. This Court, after paying its anxious consideration to the above said
contention raised by the learned counsel for the appellant/A-1, is of the
considered view that the above said discrepancy is only minor most and is not
capable of either affecting the veracity of P.W.4 or the prosecution case of
last seen theory. The location of the houses of the deceased, P.W.1 and
Karuppasamy provides a vital clue in this regard. It is a fact that cannot be
disputed that they are not separate houses, but a single building under a common
roof divided into three separate portions. All the three persons are closely
related. P.W.1 and Karuppasamy are brothers and the deceased Krishnamoorthy was
the son of another bother of P.W.1. Karuppasamy’s portion lies on the extreme
north and the deceased Krishnamoorthy’s portion lies on the south. P.W.1’s
portion lies in between the two. It is the evidence of P.W.4 that he witnessed
the TV programme on the date of occurrence in the farm house of P.W.1. As P.W.1
and Karuppasamy happened to be the brothers and were residing in adjoining
portions, the above said discrepancy might have arisen regarding the house in
which P.W.4 was witnessing the TV programme before he met the appellant/A-1 near
the scene of occurrence. Therefore this Court comes to a conclusion that the
above said discrepancy will not in any way affect the veracity of P.W.1 and
P.W.4 and the prosecution version regarding its last seen theory and thus the
said argument advanced on behalf of the appellant/A-1 is also hereby rejected.
17. The appellant/A-1, on arrest, was found with an injury on his neck,
which is proved to be an injury which could have been caused by the nails of the
deceased at the time of strangulation, as evidenced by the testimony of P.W.14
Dr.Chandramathi and Ex.P.10 Medical Certificate. The alleged statement made by
the appellant to P.W.14, Dr.Chandramathi, as to how he had sustained that
injury, no doubt, will be inadmissible in view of the bar provided under Section
26 of the Indian Evidence Act as the said information could not be said to have
led to the discovery of any new fact which was not known earlier to the
Investigating Agency. But the fact that he was found with such an injury and
the probability of having sustained such an injury at the time of occurrence as
spoken to by the Medical Officer in the absence of any other explanation by the
appellant/A-1 provides a link in the chain of circumstances to prove the case of
the prosectuion that it was the appellant/A-1, who caused the death of
Krishnamoorthy.
18. No doubt in the instant case, there is no eye witness for the
occurrence and the entire case of the prosecution rests on the circumstantial
evidence. In such a case, the duty of the Court is to examine the circumstantial
evidence and make a decision, as to whether the circumstances so established
form a complete chain of events, so as to bring home the guilt of the accused,
without giving any way for any other hypothesis and whether the circumstances,
if accepted, are consistent only with guilt of the accused and inconsistent with
his innocence. When such a test is applied, this Court has to come to the only
conclusion that the prosecution has established its case against the appellant
herein/A-1 beyond all reasonable doubt by cogent and acceptable circumstantial
evidence. The first circumstance is that the appellant/A-1 was hard pressed for
money and was even facing a threat of the removal of the crane from the place
wherein he was digging a well for Karuppasamy, as he was not in a position to
make payment of even the hire charges to the owner of the crane. The earnest
appeal made by him to the deceased, who was none other than the brother’s son of
the above said Karuppasamy, to provide him with financial help to ward off the
above said difficulty, was turned down by the deceased. The same provided the
motive for the appellant/A-1 herein to commit the alleged murder for gain. The
second circumstance is that the appellant herein/A-1 was seen at about 02.00
hours (night time) sitting on a grinder stone near the cot on which the deceased
was sleeping just prior to the occurrence. The third circumstance is that after
the occurrence, he left the village, after informing P.W.6 that there were a
lot of water in the well to be lifted before the excavation work could be
continued and directing him to lift the water using the pumpset and keep the
well dry, so that on his return with the workers he would continue the
excavation work. But thereafter, he failed to return, as he promised and was
found missing from the date of occurrence. The fourth circumstance is that the
arrest and recovery of articles based on the information furnished by him. The
evidence in this regard adduced by P.W.19 Investigating Officer stands fully
corroborated by the mahazar witness P.W.7. M.O.2 – a gold ring with a red colour
stone, M.O.3-an ordinary ring, M.O.16-a gold colour wrist watch, M.Os.7,34,35
and 36-the clothes and M.O.10 series a sum of Rs.2,000/- were recovered under
cover of a mahazar marked as Ex.P.4. The above said articles were recovered
based on the information furnished by A-1. M.Os.2 and 3 have been identified by
the witnesses to be that of the deceased. M.Os.7,16,34,35 and 36 have been
identified and proved to be the articles purchased by the appellant/A-1 using a
portion of the sum of Rs.5,000/-, he had stolen from the deceased. Clear
evidence has been adduced to the effect that the deceased was having in his
possession two bundles of 50 rupees currency notes. The appellant had taken for
him as his share one of the bundles amounting to Rs.5,000/- out of which, he
paid a sum of Rs.1,000/- to the owner of crane. The said amount was also
recovered from the owner of the crane. A sum of Rs.2,000/- was spent by the
appellant/A-1 for the purchase of clothes and a wrist watch, which fact stands
substantiated by the evidence of mahazar witnesses as well as the shop owners
from whose shops, the said articles were purchased. A balance amount of of
Rs.2,000/- (forty 50 notes of rupees denomination) was found concealed with the
above said articles in a trunk box kept in the house of the appellant’s father
and recovered. The appellant is not in a position to give any account of the
circumstances under which he happened to possess the said articles. When all
these circumstances are put together, the only conclusion this Court can arrive
at is that it was the appellant/A-1 who committed murder for gain and robbery.
19. No doubt, it is a well known preposition that suspicion, however
strong, cannot take the place of proof and that a man, who is in possession of
stolen goods, can be presumed either to have stolen the same or received the
goods knowing them to be stolen, unless he can account for his possession, as
per Section 114 illustration (a) of the Indian Evidence Act. But such a
presumption can be extended further, to hold that such a person has committed
the offence of murder also, if there are circumstances to connect the accused
with the murder. In this case, in addition to the fact that the appellant/A-1
was found in possession of the above said articles belonging to the deceased and
was not in a position to account for the same, there are other circumstances, as
narrated above, to connect him with the murder also and hence this Court is of
the considered view that the prosecution has succeeded in establishing the
charges made against the appellant/A-1 for murder and robbery. The learned trial
Judge has properly appreciated the evidence adduced on behalf of the prosecution
as against the appellant/A-1 and come to a correct conclusion that the appellant
was the person, who committed murder of Krishnamoorthy and stolen away the
jewels and cash from the deceased and thus committed the offence of murder
punishable under Section 302 IPC.
20. So far as the conviction for the second charge is concerned, there
seems to be a mistake in the framing of the charge. Section 397 IPC does not
constitute a separate offence in itself. It only prescribes a minimum punishment
in certain circumstances in respect of an offence punishable under Sections 392
or 394 IPC. In this case, it is the case of the prosecution that the appellant
committed robbery after causing the death of the deceased by strangulation. The
evidence so far discussed in respect of the charge under Section 302 IPC will be
equally applied to the offence of robbery punishable under Section 392 IPC. As
it has been established by the prosecution that during the course of committing
robbery, the appellant has caused a grievous injury by strangulation, which
eventually resulted in the death of the deceased, the act of the appellant/A-1
definitely falls within the purview of Section 397 IPC which prescribes a
minimum sentence of seven years for an offence of robbery coupled with an
attempt to cause the death or grievous hurt. No doubt, the trial Court has
committed a mistake in framing a charge under Section 397 IPC alone without
mentioning the substantive penal provision, viz., Section 392 IPC in this case.
The same does not go to the root of the case so as to vitiate the proceedings or
the conviction recorded by the Court. The trial Court was content with imposing
the minimum punishment prescribed under Section 397 IPC. Had it chosen to
inflict a graver punishment, then there could be a possibility of advancing an
argument that the trial Court did not apply its mind to the relevant penal
provision. Thus this Court comes to a conclusion that no prejudice has been
caused in awarding the minimum punishment prescribed in Section 397 IPC.
Therefore, the conviction recorded and sentence awarded for the second charge
shall be corrected as a conviction and sentence for an offence punishable under
Section 397 r/w Section 392 IPC and the sentence of seven years imprisonment,
fine and default sentence awarded by the trial Court shall stand confirmed with
such a correction indicated above.
21. For all the reasons stated above, this Court comes to the conclusion
that subject to above said modification regarding conviction for the charge of
robbery, the judgment of the trial Court does not warrant disturbance either
factually or legally, so far as the appellant/A-1 is concerned and that the
Criminal Appeal must fail and fails. Accordingly, it is dismissed.
SML
To:
1.The Additional Sessions Judge,
Dindigul.
2.The Inspector of Police,
Palani Taluk Police Station
Dindigul District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.