JUDGMENT
Arunachalam, J.
1. This appeal is directed, against the convictions and sentences imposed, on Gopal @ Arunthavaselvan, for murder/life imprisonment and theft/3 years R.I., in S.C. No. 7 of 1987 on the file of the 9th Additional Sessions Judge, Madras. Though the second charge was framed under section 392 read with Section 397 IPC, conviction was recorded only under section 380 Indian Penal Code. It is the prosecution case, that at or about 2 p.m. on 12-7-1986, in room No. 307 Bagiyam House Lodge, No. 11, Sunkurama Chetti Street, Madras-1, appellant caused the death of deceased Vizhaka Raja by squeezing his testicles and thereafter committed theft of his gold dollar chain worth about Rs. 8,000/-. Appellant, deceased and P.W. 4 Ravikandh, an Engineering student, are Sri Lankans, appellant and deceased were friends. P.W. 4 knew both of them. It is in evidence, that Vizhaka Raja was in the habit of periodically arriving into this Country, obviously with smuggled goods, to sell them away. Similarly he used to take away from this Country, certain goods, for sale in Sri Lanka.
2. Deceased, during his visits to Madras, used to stay in Bagiyam House Lodge, which was managed by P.W. 1 Deva Anbu. P.W. 2 Gopalakrishnan was employed as an Assistant Manager in the said Lodge. While P.W. 3 Mathiazhagan was engaged as a room boy. P.W. 5 Suresh, was a Sanitary worker in the very same Lodge. All those witnesses knew the appellant and the deceased.
3. On one of those useful jaunts, deceased hired a room in Bagiyam House Lodge at 5.30 a.m. on 9-7-1986. Since deceased Vizhaka Raja was a known customer, no advance was demanded, for his lodging, Room No. 306 was allotted to him. In Lodge register Ex. P.3 at page 201, deceased has signed, to indicate allotment of room No. 306 to him. Next morning at 10.00 a.m. Vizhaka Raja informed the management of the lodge that he intended to stay for 3 days and offered an advance of Rs. 120/-. A receipt was issued to him, the counterfoil of which is Ex. P.5. Receipt of the said advance has also been entered at page 187 of Lodge chitta Book, marked as Ex. P.7.
4. At 7.30 a.m. on 10-7-1986, deceased asked P.W. 3 (Room Boy) to supply two cups of coffee and tamil daily Dina Mani. He handed over Rs. 5/- to P.W. 3, for the said purpose. P.W. 3 after abiding by the direction of the deceased handed over the balance of Rs. 5/- to the appellant who was then in the company of the deceased.
5. At 5 p.m. on 11-7-1986, deceased requested, for a double bed room, since his friend was with him. Lodge Management obliged him, and allotted Room No. 307. An entry to this effect is available in Ex. P.2. Lodge Register, wherein the deceased has put in his signature, over again. At or about the same time, deceased contacted some other person over the telephone, with whom the appellant also engaged himself in conversation. Before commencing his part of telephonic talk, appellant stated (Vernacular matter omitted) P.W. 1 then became aware, that the name of the appellant was Gopal. Of course P.W. 1 had seen him even earlier but became acquainted with his name only then.
6. Around 4 p.m. on 11-7-1986, P.W. 4 and Manoharan (not examined) arrived at Bagiyam Lodge, to meet deceased Vizhaka Raja. At or about that time, appellant. Selvaraja and Mathala Raja (both not examined) were in the company of the deceased. It was thereafter that the deceased had asked for a bigger room. In Room No. 307, deceased spent some time with P.W. 4 and Manoharan. He requested P.W. 4 and Manoharan to go over to the Air-port on 12-7-1986, since he intended to leave for Sri Lanka by the 8.10 a.m. flight. To the knowledge of P.W. 4 and Manoharan, appellant continued to stay with the deceased.
7. At or about 6 a.m. on 12-7-1986 P.W. 4 was at the Madras Air Port. At 7 a.m. deceased arrived at the Air Port in the company of Selvaraja and Mathala Raja. All the three of them went inside the Air Port. At 9.20 a.m. deceased Vizhaka Raja along returned. When P.W. 4 enquired him, the cause for his return, latter stated that his Air ticket was not confirmed. Thereafter P.W. 4, Manoharan and the deceased arrived at Bagiyam Lodge over again, in an autorickshaw. They went over to Room No. 307. Appellant alone was there. Fifteen minutes thereafter P.W. 4 and Manoharan parted company with the deceased, leaving the deceased alone in the company of the appellant.
8. Around 12 noon on 12-7-1986, deceased beckoned P.W. 3 and asked him to buy two half plates of Chicken Biryani, by handing over Rs. 20/- in cash to him. P.W. 3 found the deceased then, in the company of the appellant. Sometime later, P.W. 3 supplied the dish asked for, and handed over the balance in Rs. 20/- to the appellant P.W. 3 stayed back in the III Floor Veranda between 1.45 p.m. and 2 p.m. on 12-7-1986, P.W. 3 noticed the appellant coming out of room No. 307 and proceeding away from the lodge, in haste, after leanging shut the room door.
9. In the usual course, deceased ought to have vacated his room on the morning of 12-7-1986. However he did not do so. On 13th morning, P.W. 1 enquired P.W. 2 if the deceased had vacated his room. P.W. 2 replied in the negative. At 5.30 a.m. on 13-7-1986, since the deceased had neither vacated his room nor had paid the room rent, in the company of P.W. 5, P.W. 1 went over to room No. 307. He tapped at the outer door. But there was no response. He attempted to open the room with the Master Key, but he did not succeed, for, he later realised that the door was not locked. When the outer door was pushed with some pressure, it opened itself out. P.W. 1 and 5, found deceased Vizhaka Raja dead, face upwards. They also noticed abrasions on his right neck, both elbows and leg. The lungi worn by Vizhaka Raja was not in its proper position. They were able to notice swelling of testicles. Further M.O. 1 the gold chain, normally adorning the neck of the deceased, was found missing. At 6 p.m. P.W. 1 preferred his complaint. Ex. P.1 before P.W. 14, R. Prabakar, Inspector of Police, B2 Esplanade Police Station on Ex. P.1, P.W. 14 registered crime No. 507 of 1986 under S. 174, Cr.P.C., Ex. P.21 is the printed first information report. At 6.15 p.m. he prepared Ex. P.22, the scene sketch. In the presence of P.W. 6 Darmalingam, at 6.30 p.m., he prepared observation mahazar Ex. P.8. Between 6.45 p.m. and 8.45 p.m. he held inquest over the corpse of Vizhaka Raja, during the course of which, he examined P.Ws. 1 to 5. Ex. P.23 is the inquest report.
10. At 9 p.m., he despatched the corpse thorough Police Constable Abdul Sheriff (P.W. 9) with a requisition Ex. P.18 to Stanly Medical College, Madras, for the conduct of postmortem. At 9.30 p.m. from the scene room, he seized M.Os. 3 to 8 (blood stained bed spread; two blood stained pillow covers, two glass tumblers; one 5 paise coin, one yellow under-wear and a half burnt dishevelled newspaper sheet) under mahazar Ex. P.9 Under the same mahazar, he also seized certain cigarette bits Nirodh, chicken bones and Manthara leaves. At 10 p.m. he altered the crime into one under sections 302 and 380 Indian Penal Code. Ex. P.24 is the express altered crime report.
11. P.W. 12 Thegara Begam, Additional Professor of Forensic Medicine, commenced autopsy on the corpse at 7 p.m. on 14-7-1986. A well nourished male body was found decomposed and bloated up in appearance. Face was found conjested. Veins were prominent on the chest wall. Scrotum was found distended. Ant bite marks were noticed on both the axilla, right and left Cubital fossa, right groin and left ankle. The following external injuries were noticed.
(1) Horizontal abrasion 5 x 1 cm on right thigh close the anterior superior illiac spine.
(2) Horizontal abrasion 4 x 1 cm on outer aspect of upper third of right thigh.
(3) on dissection of scalp, the following were noticed.
(a) Bruising of right tempero-parietal region 8 x 6 x 1/2 cms.
(b) Bruising of right occipital region 5 x 6 x 1/2 cms.
(c) Bruising of left occipital region 4 x 3 1/2 x 1/2 cms.
(d) Bruising of right cheek and temple 12 x 6 x 1 cms.
(e) Subarachnoid haemorrhage 12 x 4 cms.
on the para sagital area of cerebral hemispheres.
(4) Bruising of the tissues around the left testis 8 x 6 x 1 cms was noticed. Left testis was found contused. Heart was found decomposed, while congestion of the lungs was noticed. Stomach contained 200 grms of partly digested cooked rice particles. There are cyanosis of the nails of hands and feet. Bladder was empty. All the other internal organs, on dissenction, were found congested. There was also congestion of both the exes more on the right side. In the opinion of the doctor, the deceased had died due to begal inhibition, as a result of injury to the testis. Ex. P.19 is the post-mortem certificate. Injury No. 4 found on testis was necessarily fatal. Deceased would appear to have died about 45 to 50 hours prior to conduct of autopsy. Deceased could have consumed food about 45 minutes to one hour, prior to his death. Injuries found on the testis of the deceased could not have been sustained, due to accidental fall, but must have been the result of squeezing. Injury No. 3 could have been caused by using blunt force on the head.
12. On 4-8-1986 at 6 a.m. in the presence of P.W. 7. Muthiahm P.W. 14 arrested the appellant opposite to Ambedkar College, situated at Erukancheri Main Road. When interrogated, appellant offered his admissible confession Ex. P.10. Appellant was produced before the VII Metropolitan Magistrate, Madras, and police custody obtained till 13th August, 1986. At the instance of the appellant, in his company, P.W. 14 proceeded to Bombay by Dadar Express on 5-8-1986. At 6 p.m. on 6-8-1986, appellant pointed out the shop of Pawn Broker cum textile dealer, P.W. 8 Kothari. On inquiry, P.W. 8 produced M.O. 1 goldchain, in the presence of P.W. 13, Rahman, employed in the shop adjacent to that of P.W. 8. Ex. P.11 is the pawn ticket, under which the appellant had pledged M.O. 1 to P.W. 8, on 18-7-1986, for Rs. 4,500/-. In Ex. P.11 both P.W. 8 and the appellant have affixed their signatures. M.O. 1 was seized under mahazar Ex. P.12 attested by P.W. 13. Thereafter the appellant was remanded to Judicial custody. On 10-8-1986, P.Ws. 1 to 5 identified M.O. 1 at the police station. Finger prints found on some tumblers in the venue of crime and the admitted thumb impressions of the appellant, were forwarded for expert opinion. No report was forthcoming and hence no further investigation in that direction was conducted.
13. Material objects seized during investigations were forwarded for chemical, analysis, through the Magistrate. Ex. P.16 and P.17 are the reports of the Chemical Analyst and Serologist respectively.
14. On completion of investigation, P.W. 14 laid the final report on 21-10-1986.
15. When the appellant was examined under section 313, Cr.P.C., to explain the incriminating circumstances appearing against him in evidence, he chose to deny his complicity in the crime. He went on to add, that P.Ws. 1 to 5, 7, 8, 13 and 14 had uttered falsehood. On the date on which the investigating officer claims to have arrested him at Madras, had been actually staying at Nirmalaya Guest House, Dadar, Bombay. He happened to meet his friend Muruga Muthu, at 5.10 p.m. on that particular evening, when he was informed that Tamilnadu Police had come over to Bombay in search of him. Even while he was enquiring Muruga Muthu as to why Tamilnadu Police were after him, a police constable abruptly arrested him, took him in a taxi to Dadar Railway station, where he was put in the train at 11.15 p.m. for journey to Madras. In short, he proclaimed his total innocence. However no evidence in defence was adduced.
16. The learned trial Judge, on assessment of the oral and documentary evidence, accepted the circumstances placed by the prosecution, as clinching, connecting the appellant with the crime, and in that view convicted him and dealt with him in the manner stated earlier.
17. Mr. A. Natarajan, learned counsel appearing on behalf of the appellant contended, that in this case of circumstantial evidence, circumstances listed by the prosecution, fell short of the requisite minimum, to safely convict the appellant. He pointed out that Ex. P.11 related to 18-7-1976 and not 18-7-1986, and hence there was no connecting link between the impugned crime and Ex. P.11. He urged, that if this murder was for gain, there was no reason why the offender, whomsoever, it may be, had left on the body of the deceased, the gold ring and also did not choose to commit theft of some Indian and Foreign currency, found in Room No. 307, occupied by the deceased. He contended, that M.O. 1 was a common place chain, without any specific identity and therefore on the basis of recovery of M.O. 1, even if the appellant cannot be found guilty of murder. He pointed out, that entries in the Lodge Register showed, that the occupant of Room Nos. 306 and 307 on the impugned dates, had given his Trichy and Dindigul addresses and hence it cannot relates to the deceased, as the occupant of the said room. He contended that on the basis of evidence of Bagiyam Lodge witnesses, it cannot be concluded that the deceased was last seen alive with the appellant. He urged that since partly digested rice food was found in the stomach contents, the evidence of P.W. 3 will have to be necessarily distrusted. In short, he pleaded for exoneration of the appellant, from both the offences for which he had been found guilty.
18. Mr. B. Sri Ramulu, learned Public Prosecutor emphatically argued, that the evidence of P.W. 4, a friend of the deceased and the appellant, without doubt, had fixed the appellant as the person who was last left in the company of the deceased. The evidence of P.W. 3 would put an end to any controversy about the deceased having been last seen alive with the appellant. He argued, that it was not uncommon for smugglers to give out false addresses in Lodging houses, most of the times with the connivance, of the Lodge owners. Signature of the deceased in both the entries, has not been seriously challenged and will have to be accepted. The witnesses in charge of the lodge, who had known the appellant as well as the deceased earlier, have clinchingly identified them, and there can be no merit in the contention that the fact of both the deceased and the appellant having been last seen together, when the deceased was alive, has to be distrusted. According to learned Public Prosecutor, the powerful circumstance connecting the appellant with the crime was his pointing out a pawn broker at Bombay, from whom a gold chain, containing inscriptions was recovered. He also pointed out, that P.Ws. 1 to 5 had specifically identified M.O. 1, since they had seen it quite often for, most of the times deceased was not in the habit of buttoning up the top two buttons of his shirt. Even during early investigation, even before the appellant was arrested, missing of M.O. 1, was well within the knowledge of the investigating agency. He argued, that it was a fallacy to contend, that the pawn receipt related to 18-7-76 especially when, substantive evidence of P.W. 8 was, that pledging was on 18-7-1986. He drew out attention to the printed from, Ex. P.11, and the date column, where the numericals 197 are in print, leaving the last numerical alone to be filled up. The printed form only indicated, that pawn receipt book, printed in nineteen seventies was still in use, in nineteen eighties. The learned Public Prosecutor further contended, that if the gold ring on the dead body was still available, it will only indicate that it could not have been easily removed. It will be too much to expect the offender to be calm and collected after having murdered the victim, to search for cash in the room, for his immediate thought would be to escape, with whatever he could easily lay his hands upon. He urged, that the pledge on 18-7-1986, soon after murder on 12-7-1986, would suffice to draw an inference, that the appellant was not only the thief but the murderer as well. He strenuously contended, that these two circumstances of last seen alive plus recovery would suffice, and that the verdict of the learned trail Judge, may have to be sustained.
19. It quite often happens, in crimes of this nature, that proof by direct evidence becomes rare, necessitating inferences being drawn from facts proved and other facts necessary either to complete elements of guilt or on the contrary establishing innocence. It is necessary before drawing an inference of the guilt of the accused, from circumstantial evidence, to be sure that there are no other co-existing circumstances, which would either destroy or weaken the inference. In certain cases, non-offering of an explanation by the accused more so in a case sought to be established by circumstantial evidence, may itself provide an additional link sufficient to complete the chain of circumstances. Every evidentiary circumstances is a probative link which if made out with certainty, by credible testimony, would be sufficient to form a strong chain of sure guilt binding the accused. Each link taken separately may just suggest but when hooked on to the next, and on again, may manacle the accused inescapably. A concatenation of increminating facts will suffice to convict an accused, while short of minimum material to find an accused safely guilty, may have to be held to be insufficient Court is bound to consider the cumulative effect of all proved facts each one of which reinforces the conclusion of guilt. In other words, the combined effect of all those facts taken together, should be audited, to find out if the circumstances are decisive of guilt or pave a way for explanation, on any other reasonably hypothesis. The enunciated law is that, in a case of circumstantial evidence, the circumstance sought to be placed for providing the guilt of the accused must be so complete and clinching to form a complete chain without any missing link. If there is a missing link or a probability of explaining away all those circumstances, on any other reasonably ground, that would lead the way to exonerate the concerned accused. Keeping in our view, the well established norms in deciding a case founded on circumstantial evidence, we will now scrutinise the entire materials, placed by the prosecution, in the light of the comments made by the accused, with scrupulous care, to decide the guilt or otherwise of the appellant.
20. The circumstances placed by the prosecution are as follows :- (1) Meeting of the appellant and the deceased, both Sri Lankans, at Madras, wherever the latter used to arrive, for his trade in articles brought from Ceylon, obviously smuggled in Bagiyam House Lodge. (2) Identification of the appellant and the deceased as close associates, normally found together by P.Ws. 1 to 5 out of which, evidence of P.W. 4, a Sri Lankan, himself, has added significance; (3) Evidence of the appellant and the deceased having been seen last together when the latter was alive; (4) Missing of M.O. 1 gold chain, different from ordinary Indian goldchains, noticed even at the early stages of investigation; (5) Arrest of the appellant and his pointing out a pawn broker at Bombay, leading to seizure of M.O. 1 in the presence of another Bombay witness and identification of the jewel by several witnesses, who were competent enough to identify the same; (6) Absconding of the appellant, from about the of crime to be arrest (sic) though he was constantly in the company of the deceased, between 10-7-1986 and 12-7-86 and (7) Medical evidence disclosing homicide.
21. It is possible to conceive, that the evidence of “last seen alive”, may by itself not be sufficient to connect that appellant with the crime. Similarly mere recovery alone without the appellant and the deceased having been seen together may still not sufficient to establish the graver crime. However if those two circumstances get clinchingly united, then the escape route of the appellant, from this crime, not only gets tightened, but almost gets closed.
22. Initially, we will take up for our consideration, the evidence available to connect the appellant as the person who was in the company of the deceased last, when the latter was alive. Before doing so, it will be better to dispose of one snap argument advanced by defence Counsel, that the appellant had no motive to kill his friend, the deceased. There cannot be a second opinion, that in a case of circumstantial evidence, if evidence of motive is available, it is bound to form vital circumstance. Absence of motive, in a crime, for gain, cannot always lead to exoneration of the accused. The availability of motive or lack of it and its impact in a case of circumstantial evidence, will naturally depend upon the particularity of facts placed for scrutiny. If ultimately we are able to arrive at a conclusion, that this murder was for gain, then lack of any other motive, has no significance, for, obtaining gain itself, it apparently the motive.
23. It is fairly clear, from the evidence available, that it was the appellant and the appellant alone, who was in the company of the deceased, last. If the murder was either motiveless or suddenly motivated, only two persons were aware of it, viz. the appellant and the deceased. Deceased having been liquidated, if at all, only the appellant can offer an explanation, which he has failed to do. Even assuming, that M.O. 1 had not been removed for gain, from the corpse, soon after life became extinct, fact remains, whatever be the cause, that the only person who had access to it last, and was as well found in possession of it, at Bombay on 18-7-1986, soon after crime, was the appellant who has failed to offer any plausible explanation, for its lawful possession. Hence motive in its strict sense has no particular impact, either way.
24. Neither the deceased nor the appellant were strangers to P.Ws. 1 to 5. The evidence of P.W. 4 has an extra significance, since he is not only a friend of the deceased and the appellant, but also a Sri Lankan, like them. He had no particular affinity towards the deceased nor any worth while aversion against the appellant. He had not known deceased Vizhaka Raja directly. He came into contact with Vizhaka Raja, through his relation Manoharan, who happened to be his room associate. On 11-7-1986 at 4 p.m. P.W. 4 had proceeded with Manoharan, to Bagiyam House Lodge and had met the deceased at Room No. 306. He is certain, that even then he had seen the appellant in the company of the deceased, though two others Selvaraja and Mathala Raja were also present. Deceased after having concerned with his visitors on 11-7-1986, had chosen to go down to the Counter, to request for an allotment of a double room. He was aware of the appellant having joined the deceased in that particular trip to hotel counter. Sometime later both the appellant and the deceased returned together with a key for Room No. 307, which obviously was a double bed room. On the request of the deceased, both Manoharan and P.W. 4 had gone over to the Air-port, on the morning of 12-7-1986, only to return to the same lodge along with the deceased, since the Air ticket of the deceased, for travel on that morning to Sri Lanka, had not been confirmed. It is not uncommon that air travel tickets, be it domestic or otherwise, get confirmed on certain occasions at the Air Port. Deceased obviously was not lucky on that particular morning to have his ticket confirmed, while two of his friends Mathala Raja and Selvaraja were able to take the Flight. P.W. 4 had seen the appellant in the Company of the deceased earlier and again found him in room No. 307, when he reached the Bagiyam House Lodge, in the company of the deceased straight from the Air port. His evidence, that when they tapped room No. 307 on their return from Air Port, it was the appellant who had opened the same, is bound to have meaningful significance. Manoharan and P.W. 4, had left the Lodge around 10 a.m. on 12-7-1986. While they left the lodge, it was the appellant alone, who was in conversation with the deceased, and none-else. He has particularly deposed, that while he left the company of the deceased at 10 a.m. on 12-7-1986, he had seen M.O. 1 on the neck of the deceased. Deceased had promised to visit him and Manoharan on the next morning at their Lodging quarters. Since such a visit did not materialise, Manoharan and P.W. 4 went over to Bagiyam House Lodge at 6 p.m. on 13-7-1986. It was then, that P.W. 4 noticed, Vizhaka Raja dead in his room, face upwards. He had also noticed certain injuries on his neck, hand and leg, with some clotted bleeding. He found a cluster of ants on the dead body. Not only the gold chain (M.O. 1) of the deceased was missing from the dead body, but the appellant also was not available. The purpose for which P.W. 4 had gone over to the Lodge on the evening of 13-7-1986 has been properly explained. According to P.W. 4, a Citizen watch, a costly one, worn by the deceased was also found missing from the dead body. According to him, it was not uncommon for the deceased to sell away some of his belongings, whenever he needed funds. He was certain, that the appellant was not an assistant to the deceased. He was not aware if both of them had to be together for whatever trade in which they were involved. A reading of the evidence of P.W. 4 leaves an indelible impression of truthfulness. He, a disinterested witness, had seen the appellant and the deceased together on the evening of 11-7-1986 and again on the morning of 12-7-1986 and further found the appellant missing on the evening of 13-7-1986. Not only the appellant was missing on the last day, but the gold chain and the Citizen watch of the deceased were also not to be seen on the corpse.
25. P.W. 4, has not deposed, that he had seen the deceased wearing the Citizen watch on the morning of 12-7-1986, when he last saw him alive. In cross-examination, it has been elicited from him, that whenever there was need, deceased was in the habit of selling away his watch, chain etc. He has further added as a corollary, that the chain M.O. 1, was always found on his neck.
26. P.W. 3 will be the next important witness, who had not only seen the appellant and the deceased together from 10-7-1986 till the afternoon of 12-7-1986, but had also served for both of them coffee, food, etc., apart from providing Newspapers. Even prior to this visit of the deceased to Bagiyam Lodge, P.W. 3 a room boy in the said Lodge, had known the appellant as well the deceased. Appellant was in the habit of accompanying the deceased to Bagiyam lodge, quite often. At 7.30 a.m. on 10-7-1986, when he was in the third floor, deceased beckoned him from room No. 306 and asked him to fetch two cups of coffee and a Tamil newspaper Dina Mani, by handing over a five rupee currency note to him. When he arrived with coffee and newspaper, deceased requested the appellant to take, the balance of cash available, from PS 3. Appellant received the cash balance from P.W. 3 and placed it on the table. Around 11 a.m. on 12-7-1986 deceased requested P.W. 3 to shift his belongings from room No. 306 to room No. 307. He then noticed, appellant in the company of the deceased. Deceased was then wearing a lungi. He had also seen the gold chain M.O. 1 on his neck. Appellant through a cigarette was inhaling some powder kept on a Five paise coin. Again on 12-7-1986 around 12 noon, P.W. 3 was called by the deceased Vizhaka Raja. Rs. 20/- in cash was handed over to him to fetch two half plats of chicken Biryani when to arrived with purchased food, he noticed the appellant in the company of the deceased inhaling some powder, though his cigarette, as he had noticed in the past. Even then P.W. 3 noticed the deceased wearing gold chain M.O. 1, M.O. 2, was the lungi then worn by the deceased. Between 1.45 p.m. and 2 p.m. on the same day he was seated on the verandah on the III Floor. He noticed the appellant leaving room No. 307 in haste, after closing the room door with force. On 13-7-1986 at 6.15 p.m., P.W. 1 Manager of the lodge informed him that deceased Vizhaka Raja was found dead in Room No. 307. By that time police had already arrived. P.W. 3 was specifically able to notice, that gold chain (M.O. 1) normally worn by the deceased, was missing from the corpse. He further found Gopal, the appellant, who was usually in the company of the deceased missing. On 10-8-1986, he identified M.O. 1 after its seizure from the appellant. His evidence discloses, that once in a way, Burma Bazar Shop keepers used to visit his Lodge. He was able to identify the deceased and the appellant, since they were quite often seen in the lodge, the deceased as a regular customer. He has deposed that he had abundant opportunity, to notice M.O. 1 worn by the deceased, since up to the second button of the shirt worn by the deceased, the chain would be visible. He is certain that he had noticed the appellant leaving the lodge on the afternoon on 12-7-1986. Between 5 p.m. and 6.15 p.m. on 13-7-1993, he was away from his lodge for other work and therefore he became aware of the death of the deceased only on his arrival, from P.W. 1. Even when P.W. 3 had supplied chicken biryani to the deceased, he found the appellant in the company of the victim. He further noticed the appellant then in an intoxicated state. When the appellant left the lodge, he did not talk to him. This non-talking make no differences for, no one much less P.W. 3 was then aware of the death of the deceased, inside Room No. 307. He is certain that the deceased had stayed in his lodge on four or five earlier occasions, after he has appointed as a room boy. It will not be difficult for room boys in a lodge to identify regular customers, who would stay for a few days during every visit of theirs. If as claimed by P.W. 3, deceased had been the occupant of Bagiyam Lodge on 4 or 5 earlier occasions and the appellant used to be in his company, normally, it is not surprising, that P.W. 3 was able to identify the appellant as the person who was in the company of the deceased not only on the fateful afternoon, but even on the two earlier days. We cannot also overlook, that if some of the Burma Bazaar shopkeepers used to visit Bagiam Lodge, it will probably be, to get in touch with Sri Lankan nationals. Line the deceased who used to stay in the said lodge with the avowed object of selling the goods brought by them from Sri Lanka, at Madras. That the deceased was in the habit of so selling Sri Lankan goods, has been affirmed by P.W. 4, another Sri Lankan, student at Madras. Such sort of visits, by the Burma Bazaar shop keepers, to the lodge, must have provided further opportunities for P.W. 3, to have rather closely known the deceased as well as his constant companion the appellant. The evidence of P.W. 3 not only affirms the evidence of P.W. 4, but goes a step further to assure the presence of the appellant with the deceased, till late in the afternoon on 12-7-1986. We have meticulously perused the evidence of P.W. 3 and are unable to find any infirmity in his version, which tend to affect his credibility. We find no reason for him to connect the appellant alone with the deceased, when other visitors like P.W. 4. Mathala Raja, and Selvaraja were also in the habit of periodically visiting the deceased.
27. That the appellant was staying with the deceased at Bagiyam Lodge from 10-7-1986 till 12-7-1986, gets further confirmed from the evidence of P.W. 1, Deva Anbu, Manager of Bagiyam House Lodge. His duty hours are between 9 a.m. and 9 p.m. He knew deceased Vizhakaraja as his constant customer. He also knew the appellant though, he became aware of his name only on 11th July, 1986. Room No. 306 originally allotted to the deceased was a single occupancy room in the third floor. P.W. 2 Gopalakrishnan Assistant Manager of the Lodge is related to him. On 9-7-1986 at 5.30 a.m., P.W. 2 allotted room No. 306 to the deceased, after obtaining his signature in Ex. P.3, lodge register at page 201. P.W. 2 also knew the deceased quite well as a regular customer. The entries in Ex. P.3 were made by him, and the deceased had signed in the presence in the Register. According to P.W. 2 at 5.30 p.m. on 11-7-1986, deceased requested him, to allot a double room, since his friend had arrived. Request of the deceased was acceded to and he was allotted Room No. 307. Again the signature of the deceased was obtained in Ex. P.3. At or about the time of allotment of the double room, (No. 307), deceased expressed his desire to use the telephone. He also requested his room mate, who is no other than the appellant, to converse over the telephone. While talking over the telephone, appellant, mentioned to the receiver of the call at the other end, as (Vernacular matter omitted). It was then that P.W. 1 became aware of the name of the appellant.
28. On the morning of 10-7-1986, deceased had advanced Rs. 120/- towards room rent, expressing his intention to P.W. 2, that he was likely to stay in the lodge for three days. Since P.W. 2 was busy, Supervisor Arumugham (not examined) passed on a receipt to the deceased for the advance amount to Rs. 120/-. P.W. 2 also knew the appellant since he used to be in the company of the deceased almost always. Even when the deceased witched over to a double bed room, advance payment was not demanded. He was expected to vacate the room on 12-7-1986, which he did not do. On the morning of 13th, P.W. 1 enquired P.W. 2 if the deceased had vacated. The latter replied in the negative. Till 5.30 p.m. on 13-7-1986 since the deceased had neither vacated the room nor tendered the room rent. P.W. 1 went along with P.W. 5 Suresh, Sweeper, to room No. 307 around 5.30 p.m. He found the door closed. With the aid of Master key, attempted to open the room door in which attempt he did not succeed. However, when the door was pushed with some force, it opened up. To his shock, he found deceased Vizhaka Raja dead, face upwards, on the cot, inside the room. He concluded that the deceased was dead since he was not breathing. He further noticed a small bleeding injury on the neck of the deceased, apart from some abrasions on his knees. The lungi worn by the deceased was not in order. Therefore he was able to find a testicle of the deceased swollen. He also found the gold chain usually worn by him, missing from his neck. He proceeded immediately to the B. 2 Police Station and set the law in motion. He has identified M.Os. 1 and 2. When cross-examined, P.W. 1, has categorically stated, that he had seen the appellant number of times before 11-7-1986. With the deceased appellant alone came to the lodge, this time, Citizens of Singapore and Cylon used to stay in his lodge. He has fairly admitted, that in Ex. P.3, at two different places, referable to the initial allotment of room to the deceased and the later changing over to another room, Madurai and Trichy addresses, have been given by the deceased, though he was a Sri Lankan. Casually he went over to room No. 307, without being aware, if the deceased was then available, and then to his dismay, he found the dead body. In the same pattern, as the other witnesses have deposed, he has stated, that the chain worn by the deceased, used to be prominently displayed, due to unbuttoning of two upper buttons of his shirt by the deceased and hence he had definite remembrance about the identity of M.O. 1. He has denied the suggestion, that Vizhaka Raja and the appellant did not stay in Bagiyam house lodge at all from 9-7-1986 to 12-7-1986. He has admitted that in Ex. P.1 he had not stated, about the missing of M.O. 1 from the neck of the deceased. To our mind, non-mentioning in the first information report about the missing of M.O. 1, from the corpse, can have no significance, for soon after during inquest, which was conducted between 6.45 p.m. and 8.45 p.m. on the same day, P.W. 15 Investigating Officer became aware from the evidence of P.Ws. 1 to 5, of the missing of M.O. 1, the gold chain normally worn by the deceased and which was found a day before his death, on the neck of the deceased. P.W. 1 must have been in panic when he saw a dead body in his lodge and we cannot expect him to have been calm and collected to furnish every minute detail in the complaint Ex. P.1, preferred by him, within a few minutes after he found the dead body. The evidence of P.W. 1 has not been seriously assailed and his version readily attracts acceptance.
29. P.W. 2 the Assistant Manager of the lodge, has specifically spoken, to the deceased having informed him on 12-7-1986, before leaving for the Air Port, that the appellant will stay in the room till the evening. He has also spoken about the return of the deceased around 9 a.m. On the same day in the company of P.W. 4 and Manoharan. When P.W. 2 questioned the cause for his return, the deceased told him, that his air ticket had not been confirmed. About 30 minutes later, he had noticed P.W. 4 and Manoharan leaving the lodge. On the evening of 13-7-1986 when he arrived at 5.30 p.m. for taking charge of the lodge, he became aware of the death of the deceased. He saw the dead body with some injuries. He then noticed missing of M.O. 1, the gold chain normally worn by the deceased, which he identified on 10-8-1986, after its seizure. He has spoken about the entries in Ex. P.3 containing the signature of the deceased. He has affirmed, that the lodge Register would indicate, that the deceased had come for his trade. He was not aware if the deceased had ordered for food later in the night on 12-7-1986. He had seen the appellant several times before 11th July, 1986, due to his constant visit to the lodge. As the other witnesses, he had seen the deceased almost always wearing M.O. 1 the gold chain, through the opening of his shirt. He has stated, that he did not forward any information to the addresses mentioned in Ex. P.2 and P.3 about the death of the deceased. It was commented upon by appellant’s Counsel, that the Lodge Manager was bound to inform the relatives of the deceased, to the address mentioned in the lodge Register, about his death. This argument we are not prepared to take it, very seriously, for, people like the deceased, who were engaged in illicit trade, of probably smuggled goods, and more so, due to their Sri Lankan or other foreign Origin, may not give out their correct addresses and that should be within the knowledge of the Lodge Managers. Anyhow Manoharan, a relation of the deceased had become aware of the death of Vizhaka Raja even on the same evening and to recapitulate, it was he, who had introduced P.W. 4 to the deceased. P.W. 4 was examined during inquest. The evidence of P.W. 2 is one more clinching connection confirming the stay of the appellant with the deceased at Bagiyam House Lodge from 10-7-1986 till the decease met with his death on the afternoon of 12-7-1986.
30. P.W. 5 Sweeper of Bagiyam House Lodge was present with P.W. 1 when the dead body was found inside room No. 307 at 5.30 p.m. on 13-7-1986. His evidence will practically merge in the version of P.W. 1. On the evidence of this group of witnesses, we are prepared to safely accept the prosecution case, that it was the appellant who was in constant company of the deceased from 10-7-1986 till the afternoon of 12-7-1986, when he abruptly left the lodge in haste, closing the room door with some force. The Circumstance ‘last seen alive’ has thus been established satisfactorily by the prosecution.
31. The preceding discussion will cover circumstances 1 to 4 mentioned in paragraph 20 of this judgment.
32. Now the stage is set to consider evidence of arrest of the appellant and his confession leading to discovery of M.O. 1, at Bombay, in the Pawn Broker Shop of P.W. 8, on P.W. 8 being pointed out by the appellant. The definite case of P.W. 14 is that on 4-8-1986 at or about 6 a.m. he arrested the appellant opposite to Dr. Ambedkar College at Erukancheri High Road, in the presence of P.W. 7 and another. The evidence of P.W. 7 fully corroborates the version of P.W. 14 about the arrest of the appellant at the time and in the manner spoken to by him. P.W. 7 is a cloth dealer, who was then proceeding on a cycle with his friend Natrajan, towards Vasarpadi. Both of them noticed a crowd opposite to Ambedkar College, which kindled their curiosity leading then, near the venue of arrest of the appellant. P.W. 14 requested P.W. 7 to be present, during his examination, of the appellant. P.W. 7 has spoken in his substantive evidence, that the appellant undertook to point out the place at Bombay where he had pledged the chain. P.W. 7 has affixed his signature in Ex. P.10, the admissible confession of the appellant. When cross-examined P.W. 7 has frankly stated, that he was not aware about the actual arrest of the appellant, but he was available at the scene only during the time, when the statement of the appellant was recorded. He has denied the suggestion, that he had chosen to depose falsely, since the Investigating officer was known to him, and that he was a stock witness. We are not able to notice any material in the evidence of P.W. 7, which would even remotely indicate that P.W. 7 was a stock witness. We are unable to visualise from the cross-examination, that P.W. 7 had any bad antecedents or for some reason was at the beckand call of the police. P.W. 14 as well as P.W. 7 are total strangers to the appellant and if he had not offered a confession, that he would point out the Pawn Broker at Bombay with whom he had pledged the gold chain and offering to produce it, it would have been well nigh impossible for the investigating officer or P.W. 7 to have imagined about a Pawn Broker residing several hundred miles away, with whom the gold chain of the deceased had been pawned. This circumstance cannot be lightly brushed aside for, we have the later confirmation of the truth of this statement by the fact of recovery of M.O. 1 from P.W. 8, a pawn broker at Bombay in the presence of P.W. 13, Rahman, a locality witness at Bombay and a neighbour of P.W. 8. We will now turn our attention to the evidence of P.W. 8. Since P.W. 8 did not know Tamil, he was allowed to depose in Hindi and his evidence was translated into Tamil, with the help of the Head-clerk of the Sessions Court, who was acquainted with Tamil and Hindi, P.W. 8 is certain that on 18-7-1986, appellant produced M.O. 1, a gold chain before him, at Bombay and desired a loan of Rs. 5,000/- on pledge of the said jewel. He offered Rs. 4,500/-, which was accepted by the appellant. He handed over Ex. P.11 receipt in which not only the appellant has affixed his signature, but he himself has signed at 5 p.m. on 6-8-1986, when he was in his shop, police arrived accompanied by the appellant. When questioned by P.W. 14, he admitted about having accepted pledge of a gold chain at the instance of the appellant. He produced M.O. 1 as the chain pledged by the appellant M.O. 1 was seized under Mahazar Ex. P.12 in which he was affixed his signature.
33. One significant factor which affirms the arrest of the appellant at Madras on 4-8-1986 is the receipt of Ex. P.10 by the concerned Magistrate at Madras on the very same day. This prompt receipt of Ex. P.10 by the Magistrate will put an end to the theory of the appellant, as though he was arrested at Bombay, and not at Madras, as spoken to by P.Ws. 7 and 14. Further evidence of P.W. 14 discloses, that the appellant was produced before the 7th Metropolitan Magistrate, Madras at 11 a.m. on 4-8-1986 with a requisition for police custody of the appellant till 13-8-1986. On such custody being ordered P.W. 14 left along with the appellant to Bombay by Dadar Express on 5-8-1986.
34. We also find the signature of P.W. 13, a Bombay locality witness, in Ex. P.12 Ex. P.11 is the pawn receipt. It is in Gujarathy language. However a true translation of Ex. P.11 was also produced before the trial Judge and was made available to the appellant to facilitate his cross-examination of P.W. 8. In the column name of debtor entry if ‘Ceylone Jagannath Gopal’. Under Column’ details of pledged item “entry shows ‘one gold chain’ weighing 41.500 grams. Estimated value, is stated as Rs. 5,500/- while the entry ‘amount of ‘loan’ shows Rs. 4,500/- The pawn receipt contains an undertaking which reads as follows :
“I hereby give full guarantee that pledged item belongs to him. I will be held responsible for any objection that will be taken in this regard. If the item pledged is not redeemed within stipulated period, the goods will be sold at your risk without any further notice to you. If any loss accrues, legal action will be taken against you to recover the loss.”
Underneath this declaration, according to P.W. 8 appellant had affixed his signature. It was strenuously contended by Mr. A. Natarajan, appellant’s Counsel, that the date in the pawn receipt was 18-7-1979 and not 18-7-1986 and hence the pledge of jewellery cannot be connected with the impugned murder of Vizhaka Raja, due to 10 year gap. This argument did appear attractive as soon as it was advanced, to be dispelled in no time for Ex. P.11 is a printed receipt wherein, in no respect of year of pledge, already the numericals 197 had been printed. While considering the truth or otherwise of Ex. P.11, we cannot totally overlook, that P.W. 8 was not a pawn broker out and out, but was also a textile dealer. This only shows, that to argument his income P.W. 8 was engaging himself in two different trades in the same premises. In case of a regular pawn broker, it is quite possible to visualise that pawn receipt books may get exhausted within a specified period. But in the case of a non-regular pawn broker, it will not surprise us if pawn books printed much earlier were still in currency at or about the time when the appellant chose to pledge M.O. 1 with P.W. 8. It is not uncommon that old printed stationary are used quite often in several establishments and that fact cannot totally escape judicial notice. Obviously when the appellant had pledged M.O. 1 with P.W. 8, the latter had chosen to put in the last numerical alone in the year column and that has provided scope for an argument. The evidence of P.W. 8, P.W. 13 and P.W. 14 assume very great significance for, it was only on the pointing out of the appellant, P.W. 8 was traced. Apart from P.W. 8, P.W. 13 had seen the appellant in the shop of P.W. 8 in the company of P.W. 14 at the time of recovery of M.O. 1. Since the recovery of M.O. 1 was on 6-8-1986 within 19 days of the pledge of the said jewel, it can easily be visualised, that P.W. 8 was fully aware of the identity of the pledger of the jewel who had obtained a loan by pawn of the same from him just a few days ago. It is not as though, that the appellant was in the constant habit of pledging jewellery with P.W. 8, which can then necessitate greater probe, to discover if M.O. 1 could have been pledged in July 1976 and not in July 1986. At this juncture another important circumstance should also be not lost sight of. P.Ws. 1 to 5 have seen M.O. 1 on the neck of deceased between 10th and 12th July, 1986. They are persons who had seen the chain on the neck of the deceased on several occasions and hence were competent enough to identify M.O. 1 as the jewel the deceased had worn, prior to his unfortunate killing. If the jewel was available on the neck of the deceased at Madras, between 10th and 12th July, 1986, obviously it could have been pledged only in 1986. Even if we assume that the jewel could have been pledged in 1976, obviously, it must have been obtained return of, before it commenced adorning the neck of the deceased over again, in July 1986. It will be relevant at this stage to note the description of M.O. 1 which is evident from seizure mahazar Ex. P.12.”
The description of the gold chain and dollar, prima facie fit in with the foreign nationality of the deceased who was admittedly a Sri lankan. It is not as though, that gold chain with foreign marking may not be available with any other local resident. But the fact remains that this particular gold chain was available on the neck of the deceased on 12-7-1986 and got itself into the custody of P.W. 8 at Bombay on 18-7-1986, through the hands of the appellant, who had obviously held its possession, prior to its pledge and after its missing from the dead body. The pattern of chain with the dollar and markings, is certainly something unusual and therefore we are not surprised that P.Ws. 1 to 5 as well as P.W. 13 were able to identify this particular piece of jewellery as that which was in the possession of the deceased and later in the custody of P.W. 8.
35. It was then argued by the defence Counsel, that the signature of the appellant had not been obtained in the column ‘debtor’s signature’ but had been obtained below the declaration, in the same document. This argument has no weight for signature of the appellant has been obtained, to include declaration as well, in the very page, in which entry regarding pledge of jewellery has been made, inclusive of the amount of loan advanced. It rather depends on the practice adopted by the Pawn brokers, as to the place at which they obtain the signature of the customer in the pawn receipts, and this argument can hardly make Ex. P.11 a false document. Though we need not have to refer to the statement of the appellant under S. 313, Cr.P.C. to distrust his case of arrest at Bombay and not at Madras, for we are totally convinced about his arrest at Madras, we are bound to state that the case of the appellant, that he was arrested at Bombay indirectly leads to the probable presumption that the appellant was in the habit of visiting Bombay probably for his nefarious trade and in that process soon after the commission of crime, he had bolted away to Bombay, a known place to him wherein he had the opportunity of pledging M.O. 1 with P.W. 8. It would have been the fervent thought of the appellant, that if he chose to pledge the jewellery at a far of place, recovery would not easily be possible and that a clinching link, connecting him with the crime may get overshadowed. Unfortunately for the appellant within a short period of the commission of the crime, he was arrested, leading to recovery of M.O. 1, on his confession. That P.W. 8 was a licensed pawn broker is evident from Ex. P.11 itself, since the licence number has been noted down therein as 5442. Ex. P.11 is also a statutory printed form, under the concerned rules, as Ex. P.11 itself discloses. A jewellery is normally pledged with a pawn broker for a specified period. It will be odd to expect P.W. 8 to have retained the jewellery without selling the same for a period of ten year, if the pledge was on 18-7-1976. We cannot overlook, overlook that the date of pledging is 18th and month is July. This coincidence will be two strange.
36. An argument was advanced that there was discrepancy about the seizure of Ex. P.11 from P.W. 8, since he has stated, that the said receipt was produced by P.W. 14, contrary to the evidence of P.W. 14 that he obtained it from P.W. 8. When P.W. 8 was in the witness box, several months after the seizure of M.O. 1, we will have to give a due margin, for his retentivity and that light, we have no hesitation in accepting the evidence of P.W. 14, whose investigation appears to have been quite prompt and threadbare, in every facet. It would have been better if the counter foil of Ex. P.11 had been seized. But such non-seizure does not lead, to any sinister inference being drawn. P.W. 8 has specifically denied that Ex. P.11 did not relate to the pledge in July 1986. He has identified the signature in Ex. P.11 as that of the appellant and that is an extremely relevant circumstance. It was argued by the defence Counsel, that the admitted signature of the appellant, ought to have been forwarded, to the handwriting Expert, to have it compared with the signature allegedly made by the appellant in Ex. P.11 before any adverse inference can be drawn. We are unable to agree. If we have any doubt about the evidence of P.W. 8 or in his having been pointed out by the appellant soon after his arrest, then such lending assurance evidence would probably have mattered. Such contingency does not arise in the instant prosecution. It is not even the case of the appellant, when examined under S. 313, Cr.P.C., that he had pleadged M.O. 1 in July 1976 after affixing his signature. Though in the usual course a suggestion has been made to P.W. 8, that the signature found in Ex. P.11, was not that of the appellant, appellant himself has not chosen to specifically deny, about his having affixed his signature in Ex. P.11. Almost to every question addressed to him under S. 313, Cr.P.C., he has stated either (Vernacular matter omitted.) Only for the last question, whether he had anything else to say, he has stated, that at the time of his arrest, he was staying at Nirmalaya Guest House, Bombay. At 5-30 p.m. on the date of his arrest, when his friend Murugamurthy met him, he was informed that police men from Tamil Nadu had arrived in search of him. While he was enquiring has friend, as to the cause, why policemen should search for him, a policemen abruptly arrested him and took him in a taxi to Dadar Railway Station from where he was put into the train at 11-15 p.m., on his onward journey to Madras. He had not committed any offence and this was a false case. We are totally impressed with the evidence of P.W. 8, a stranger not only to Madras, but also to the investigation agency. His identification of the Appellant as well his signature, cannot easily be brushed aside, as not a connecting link with the crime. His evidence in short inspires total confidence. If there had been mere recovery alone and not last seen alive evidence, then we should have still pondered, as to whether the appellant could be convicted for murder or mere theft or under S. 411 Indian Penal Code as a receiver of stolen property. All these considerations do not arise in the instant case for, appellant’s company with the deceased prior to crime and his possession of the jewellery of the deceased soon after the crime have been beyond doubt established. Evidence of P.W. 13 lends assurance to the evidence of P.W. 8, about the seizure of M.O. 1 on 6-8-1986, on the appellant pointing out P.W. 8, to facilitate seizure of the pledged jewel. P.W. 13 has also identified M.O. 1 as the jewel seized. P.W. 13 is a normal resident of Bombay and he has neither animosity against the appellant nor affinity towards the prosecuting agency. According to P.W. 13, appellant was in the shop of P.W. 8, for about one hour and it is not surprising, that he was able to identify the appellant in Court, for the long duration he was available at P.W. 8’s shop, must have left a clear visual impression of the person who had pointed out P.W. 8 and led the way for seizure of the incriminating jeweller. Identification of the appellant by P.W. 13, is one another sure link, in the chain of circumstances project by the prosecution to connect the appellant with the crime. Suggestions made to P.W. 14, that M.O. 1 was neither worn by the deceased prior to his death nor it was seized from Bombay at the instance of the appellant, do not appear to have any material significance, when overwhelming contra evidence, fully credible, forms part of the case record. We accept without hesitation, the arrest of the appellant, his pointing out P.W. 8, to effect seizure of M.O. 1, pledged by him at Bombay, within a short period of the death of the deceased permitting a safe inference being drawn under S. 114, Indian Evidence Act, that he was not only the thief or receiver of stolen property, but the murderer as well. It has often been enunciated, that if possession of the incriminating jewellery can be traced to recent possession of the same, by the accused, who was also seen in the company of the deceased just prior to his death and had no explanation to offer, as to how he came into custody of the said incriminatory jeweller, it could safely be presumed, that he was murderer as well, for there could not have been any other way, by which the appellant could have come into possession of M.O. 1 it having reached his custody soon after the murder of the deceased.
37. We have already seen, that it is the definite case of the prosecution that after 12-7-1986 till he was arrested on 4-8-1986, appellant was not available. Abscondence after commission of crime becomes relevant under S. 8 of the Indian Evidence Act. The question, if in a given set of circumstances, accused had absconded, will naturally depend upon the conglomeration of facts placed for analysis. Absconding by itself cannot be conclusive either of guilt or of guilty conscience. While too much of importance should not be attached to the fact of running away after the crime, absconding can be a useful piece of corroborative evidence. In other words, though the fact that the accused had absconded soon after the crime may not be evidence by itself, it may lend weight to other evidence. If clinching evidence connecting the accused with the crime is available, then the fact of absconding will certainly be relevant. On facts narrate, it is clear, that the appellant had run away to Bombay, soon after the death of the deceased. It is possible to conceive, that instinct of self-preservation or panic could have been the cause for running away of the accused, from the venue of the crime, on the impression, that he may be sought for, since he was in the company of the deceased last. But such a theory cannot help the appellant in the present case for at Bombay, he had pledged M.O. 1, the gold jewellery, belonging to the deceased, which was indisputably present on the neck of the victim, prior to his death. It will be idle for the appellant to contend, that he was not aware of M.O. 1 being the gold chain of the deceased, for almost always several times, he had been in the company of the deceased and if P.Ws. 1 to 5 could have noticed it on the neck of the deceased, the appellant could not have missed it. It is quite probable, that such constant watch of jewel had led to temptation, which unfortunately not only ended in the liquidation of the deceased, but also bulleted the appellant before the criminal court. This is one more circumstance which lends assurance to the other evidence on record.
38. That the death of the deceased was homicidal, can admit of no doubt. Evidence of P.W. 12 Thegara Begum is clear and clinching, that the deceased died due to Vagel inhibition, as a result of injury to testis. Injury No. 4 found in the testis has been certified by the doctor was necessarily fatal. Medical officer has further noticed another fatal injury described as 3(e) which is subrachnoid haemorrhage 12 x 4 cms on the para sagital area of the cerabral hemispheres. Witness has further opined, that in the absence of injuries to the testis, injuries 3(a) to 3(e) which are head injuries, were sufficient to cause death in the ordinary course. For causing injuries on the head, a heavy object must have been used. It is also possible to cause the head injuries by dashing the head against the wall, with sufficient force. She has further deposed that even in the absence of injures to the testis, head injuries alone were sufficient to make a person unconscious. We have already noticed, that the appellant was fairly intoxicated at or about the time of the commission of murder of the deceased. All that had transpired between the decreased and the appellant inside the room, cannot be available to the prosecution, especially when the appellant has chosen to maintain silence. Medical evidence certainly indicates that certain head injuries were caused, on the victim and probably when the deceased was unconscious, squeezing of the testicles was also resorted to. The mens rea apparently of the appellant was to kill the victim and then walk away with whatever property of the deceased, he could easily lay hands upon. Once we are sure, that the appellant was not fully in his senses, it will be odd to expect him to have seared for cash inside the room of the deceased, or even made an attempt to remove the ring worn, which probably could not have been easily done. We should also visualise that the appellant when he became aware of the death of the deceased, must have been in a great haste to leave the scene and that was what exactly the appellant had done, for according to P.W. 3, appellant left room No. 307 in haste, after banging the room door shut with considerable force.
39. Even at this stage, we will dispose of the contention, that non-presence of chicken pieces in the stomach contents of the deceased would erase the evidence of P.W. 3, who claims to have supplied chicken biryani for the appellant and the deceased. There is no evidence, that the deceased had in fact consumed chicken. That chicken should have been purchased for the appellant and the deceased by P.W. 3, is very clear from the substantive evidence of P.W. 6, who was present when observation mahazar Ex. P.8 and seizure mahazar Ex. P.9 were prepared at the lodge. Apart from M.Os. 1 to 5, Nirodh packets, skin of plaintains, chicken bones, Manthara leaves and a five paise coin (M.O. 6) were seized. Further seizure was of M.O. 7 and M.O. 8 together with some bits of filtered cigarettes. However, even if the deceased had taken chicken, presence or absence of the same in the stomach contents, would naturally depend upon the quantity consumed. When acceptable evidence for supply of chicken biryani by P.W. 3 is available, on hypothetical consideration, based on medical opinion, the submission that absence of chicken in the stomach contends would be sufficient to eschew the evidence of P.W. 6, cannot even remotely be upheld.
40. Appellant’s Counsel after we reserved judgment, circulated the judgment of the Supreme Court in State of Karnataka v. Shivalingaiah, to impress upon us, that squeezing of testicles of victim, resulting in his death, will not fall either under clause 3rdly to S. 300 Indian Penal Code or even under S. 304, Part II Indian Penal Code, but would only attract the ingredients of S. 325, IPC. We have carefully perused the judgment of the Supreme Court and it is instantly evident, that the law laid down therein, can have no bearing in the instantly case. That was a case in which the incident took place suddenly and on the spur of the moment squeezing of the testicles of the victim resulted in his death. It was found, on these facts and circumstances presented, that it cannot be said, that the accused theirin had any intention of causing the death of the deceased, when he committed the act in question. Nor can he be attributed with knowledge that such act was likely to cause his cardiac arrest, resulting in his death. Supreme Court further observed as hereunder (para 3) :
“We wish to make it clear that it cannot be that in all circumstances such an act would not be covered by clause. Thirdly, and therefore amount to culpable homicide amounting to murder punishable under S. 302 or culkable homicide not amounting to murder punishable under Section 304 Part II. It all depends on the facts and circumstances of each case whether the accused had the requisite intention or knowledge.”
On facts, it is apparent, that the appellant had exhibited his intention to kill the deceased, whatever be the reason, not only by squeezing his testicles, but also causing head injuries, which were also sufficient in the ordinary course of nature to cause death. Thereafter the appellant had removed the gold chain of the deceased which he chose to pledge at Bombay. There cannot be second opinion, that on facts available before us, in this case of circumstantial evidence, we will be justified in finding the appellant guilty of murder and theft.
41. Circumstances placed by the prosecution to connect the appellant with the crime have no missing link. The chain is complete and strong enough to exclude circumstances projected, being explained away on other reasonable hypothesis. The verdict of the learned trial Judge cannot but be upheld. This appeal, which has no merit, shall stand dismissed.
42. Appeal dismissed.