IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.8.2009 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE M.JEYAPAUL Crl.A.No. 76 of 2009 S.Thiyagarajan .. Appellant/Accused Vs. State Rep by the Inspector of Police, Sirumugai Police Station Coimbatore district. .. Respondent/Complainant [Crime No.470 of 2007] * * * Prayer : Appeal against the Judgment, dated 27.11.2008, passed in S.C.No. 101 of 2008 on the file of the Principal Sessions Judge, Coimbatore. * * * For Appellant :: Mr. Su. Srinivasan For Respondent :: Mr. Hassan Mohamed Jinnah Addl.P.P. J U D G M E N T
(The Judgment of the Court was made by M.JEYAPAUL, J.)
The sole accused was convicted for the offence under Section 302 IPC and sentenced to undergo Life Imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo one year Rigorous Imprisonment and was also convicted for the offence under Section 506 (ii) IPC (2 Counts) and sentenced to undergo one year Rigorous Imprisonment for each count and the sentences were ordered to run concurrently. Aggrieved by the aforesaid verdict of the trial Court, the present criminal appeal has been preferred by accused Thiyagarajan.
2. On the side of the prosecution, as many as 12 witnesses were examined and 21 documents and 13 material objects were marked. Neither oral nor documentary evidence was let in on the side of defence.
3. The sum and substance of the case of the prosecution, as unfolded by the witnesses, reads as follows:-
The deceased Bagkiam is none other than the mother of P.W.1 Maheswari. P.W.1 Maheswari was given in marriage to accused Thiyagarajan. The deceased Bagkiam is not only the mother-in-law, but, also the own sister of accused Thiyagarajan. Accused Thiyagarajan and P.W.1 Maheswari were blessed with P.W.2 Gayathri.
P.W.3 Manickam and P.W.4 Murugan are the residents of Chennampalayam. Accused Thiyagarajan, the deceased Bagkiam and P.W.1 Maheswari along with their daughter P.W.2 Gayathri were also residing in the same village.
On 21.11.2007 at about 11.00 p.m., when P.W.3 Manickam and P.W.4 Murugan were chatting in front of Mariamman Temple, located in the said village, they heard a commotion in the house of Bagkiam, which was located opposite the temple. Within about 10 minutes, they found P.W.1 Maheswari, P.W.2 Gayathri and accused Thiyagarajan emerged out of the house of Bagkiam. P.W.1 Maheswari cried aloud that his mother was done to death. Accused Thiyagarajan having rushed out of the house, armed with Blood stained knife, threatened P.W.3 Manickam and P.W.4 Murugan with dire consequences if they ventured to approach him and sped away from the scene of occurrence. P.W.3 Manickam and P.W.4 Murugan went inside the house of Bagkiam and found that Bagkiam was in a pool of blood and by the side of the dead body of Bagkiam, a grinder stone was found. They passed on the information to Sirumugai Police Station over phone.
P.W.1 Maheswari proceeded to Sirumugai Police Station at about 00.30 hrs. on 22.11.2007 and lodged Ex.P18 Complaint to P.W.12 Inspector Pandian, who registered a case in Crime No.470/2007 under Sections 302 and 506(ii) IPC. He prepared Ex.P19 Printed First Information Report and despatched the same to the learned Judicial Magistrate concerned and the copies thereof to Higher Officials concerned. P.W.8 Sureshkumar, Grade I Constable attached to Sirumugai Police Station, entrusted Ex.P19 Printed First Information Report to the learned Judicial Magistrate. The records would show that Ex.P19 Printed First Information Report was received by the learned Judicial Magistrate at 9.00 a.m. on 22.11.2007.
P.W.12 Inspector Pandian rushed to the scene of crime at about 1.30 a.m. on 22.11.2007 and inspected the scene of occurrence in the presence of P.W.5 Prakash and another witness by name Kumarasamy and prepared Ex.P4 Observation Mahazar. He drew Ex.P20 Rough sketch, reflecting the scene of occurrence. He seized M.O.1 Blood stained earth; M.O.2 Sample earth; M.O.3 Grinder stone and M.O.4 Blood stained mat under Ex.P5 Seizure Mahazar in the presence of the aforesaid witnesses. He held inquest on the dead body of Bagkiam in the presence of panchayatars and witnesses and prepared Ex.P21 Inquest Report.
P.W.10 Dr.Jeyasingh received Ex.P15 Requisition handed over by P.W.11 Paramanantham, Grade I Constable attached to Sirumugai Police Station, and commenced the post-mortem examination at 10.50 a.m. on 22.11.2007 and found the following –
“The following antemortem injuries are noted on the body:-
1) A Transverse gapping stab wound 3 x 0.5cm x cavity deep noted on left side 7th Inter costal space, 9cm away from front of midline, 12cm below and medial to left nipple. On dissection, the wound passes medially downwards passing through the abdominal cavity and enters into the inferior surface of left lobe liver measuring 2×0.5x2cm depth. The tip is inside the liver.
2) A Transversely gapping stab wound 3×0.5cmx cavity deep, noted 1cm above to wound no:1, 11cm lateral to front of midline, on dissection, the wound passes medially downwards passing through abdominal cavity and enters into the inferior surface of left lobe of liver measuring 2.5×0.5x1cm depth. The tip is inside the liver.
3) A Transversely gapping stab wound 3 x 0.5cm x cavity deep noted on left side 7th Inter costal space, 13 cm away from midline, 12 cm below to left nipple. On dissection the wound passes medially downwards passing through abdominal cavity and enters into the inferior surface of left lobe of liver measuring 2×0.5×1.5 cm depth. The tip is inside the liver.
4) A Transversely gapping stab wound 3×0.5cmx cavity deep noted on 7th left Inter costal space, 1cm lateral to wound no.3, 12 cm below to left nipple. On dissection the wound passes medially downwards entering into the abdominal cavity and pierces the mesentery through and through measuring 2.5×0.5cm.
5) A Transversely gapping wound 5×0.5cmx cavity deep noted on left 8th Inter costal space, 0.5 cm below to wound no.4, 12.5 cm below to left nipple. On dissection the wound passes medially downwards, cutting the under lying 8th rib and entered into the abdomen.
6) A Transversely gapping stab wound 5 x 2cm x cavity deep noted on left 8th Inter costal space 0.5 below to wound no.5, at the level of mid axillary line. On dissection the wound passes medially downwards, and pierces into the spleen measuring 2 x 0.5 x 1cm in depth. The tip is inside the spleen.
7) A Transverse gapping stab wound 8x4cmx cavity deep noted on left 11th Inter costal space at level of posterior axillary line,
17 cm away from front of midline. On dissection the wound cutting the underlying 9th & 10th rib and pierces into the spleen measuring 2×0.5×1.5cm in depth. The tip is inside the spleen.
8) A Transverse gapping stab wound 3x1cmx cavity deep noted on left side lateral aspect of 11th rib, 2 cm below and lateral to wound no.7, 19 cm below to left axilla. On dissection the wound passes medially downwards through the abdomen and entered into stomach.
9. A transverse gapping stab wound 3 x 1 cmx cavity deep noted 1 cm above to wound no.8, on dissection the wound passes medially downwards and cutting the underlying 10th rib, entered into the abdominal cavity. 10. A transverse gapping stab wound 3 x 1 cmx cavity deep noted on 6th left Inter costal space, 11 cm below to left axilla. The wound passes medially inwards and entered into the lower lobe of left lung. 11. A transverse gapping stab wound 3 x 1 x cavity deep noted on posterior axillary line on 7th left inter costal space 11 cm below to left axilla. On dissection, the wound passes medially downwards cutting the underlying tissues and entered into the lower lobe of left lung measuring 2x0.5x2 cm in depth. 12. A transverse gapping stab wound 4x0.5cmx cavity deep, 0.5. cm below to wound no.11. On dissection the wound passes medially downwards and entered into lower lobe of left lung measuring 2x1x1 cm in depth. 13. A transverse gapping stab wound 3 x 1 cmx cavity deep noted on left 8th Inter costal space, 15 cm below to left axilla, at posterior axilary line, on dissection wound passes medially downwards to enter into abdominal cavity. 14. A transverse gapping stab wound 3 x 1 cmx cavity deep noted 1 cm lateral to wound no.13, 15 cm below to left axilla, at the level of posterior axillary line. On dissection the wound passes medially downwards to enter into abdominal cavity. NOTE: All the above wounds have tailing of wounds towards the left. The medial ends of the wounds are blunt, and lateral ends are sharp. 15. A transverse gapping stab wound 3 x 1x3 cm muscle deep, noted on left scapular region, 9 cm away from back of midline.
16. A transverse gapping stab wound 4 x 1 cm x cavity deep, noted on back of left scapular region, 6 cm away from back of midline. On dissection, the wound passes upwards medially and cutting the underlying tissues, nerves, vessels and 3rd rib in the posterior aspect.
17. A transverse gapping stab wound 9x1x4 cm muscle deep noted on back of left side abdomen, 4 cm away from back of mid line.
18. Laceration 6×3 cm x skin deep noted on left temporal region.
19. Laceration 2×0.5cm x skin deep noted on left upper earlobe.
On dissection of scalp, skull and dura. Subscalpal contusion 10x6 cm noted on left temporal region and 8x6 cm noted on right temporal region. Diffuse Subdural and sub arachnoid haemorrhage noted on both cerebral hemisphere. Other Findings:-
Pleural & Peritoneal cavities: described Pericardium contains 15 ml of straw colour fluid, Heart right side chambers contain few cc of blood, left side chambers empty, coronary vessels patent Lungs, Liver, and spleen: cut section-pale.
Larynx and trachea: normal.
Hyoid bone: intact.
Stomach contains 5 ml of mucosal fluid no specific smell, mucosa pale.
Small intestine: contains 15 ml of bile stained fluid, no specific smell, mucosa pale.
Urinary bladder: empty.
Uterus normal sized, cut section cavity empty.”
He has opined that the deceased would appear to have died of shock and haemorrhage due to multiple stab injuries sustained by her about 12 to 16 hours prior to autopsy. Ex.P16 is the Post-mortem certificate issued by him.
P.W.11 Paramanantham, Grade I Constable, seized M.O.8 Red colour blouse; M.O.9 Saree; M.O.10 Brassiere; M.O.11 Inskirt; M.O.12 Gold ear-stud-one pair and M.O.13 Brass chain from the body after the post-mortem examination was over and entrusted the same to P.W.12 Inspector Pandian. P.W.12 Inspector Pandian despatched all the material objects to the learned Judicial Magistrate with the requisition to send the same for chemical examination.
On 23.11.2007 at 6.45 a.m. accused Thiyagarajan was arrested at Mettupalayam Bus stand in the presence of P.W.6 V.A.O. Ravichandran and another witness. Accused Thiyagarajan voluntarily gave confession statement. On the basis of Ex.P6 Admissible portion found in the confession statement of accused Thiyagarajan, P.W.12 Inspector Pandian recovered M.O.5 Blood stained Knife; M.O.6 Blood stained Trousers and M.O.7 Blood stained Shirt under Ex.P7 Seizure Mahazar in the presence of the very same witnesses. Those material objects also were despatched on 27.11.2007 to the learned Judicial Magistrate with a requisition to send the same to the Chemical Examiner for analysis. He also took steps to record the statement of witnesses P.W.1 Maheswari, P.W.2 Gayathri, P.W.3 Manickam and P.W.4 Murugan under Section 164 CrPC. P.W.7 Judicial Magistrate Balu has spoken to the fact that he recorded the statements of those witnesses under Section 164 CrPC.
P.W.9 Shanthakumari, Head Clerk attached to the Court of Judicial Magistrate, spoke about Ex.P10 Requisition received from P.W.12 Inspector Pandian; Ex.P11 Covering letter despatched by the learned Judicial Magistrate requesting the Chemical Examiner to analyse the material objects sent for examination; Ex.P12 Chemical Examiner Report and Exs.P13 and P14 Serology Reports.
P.W.12 Inspector Pandian having completed the investigation, laid the Final Report as against accused Thiyagarajan.
4. Accused Thiyagarajan came out with a total denial of his involvement in the crime spoken to by the witnesses examined on the side of prosecution during the course of the proceedings under Section 313 CrPC conducted by the trial Court.
5. The trial Court having heavily relied upon the testimonies of P.W.3 Manickam and P.W.4 Murugan, the arrest of accused Thiyagarajan; confession which led to the recovery of material objects; Chemical Examiner’s Report as well as Serologist’s Reports available on record and the medical evidence produced in this case, rendered a verdict of conviction and sentence against the accused as stated supra.
6. As per the case of the prosecution, P.W.1 Maheswari set the law in motion by lodging Ex.P18 Complaint. The Investigating Agency had, in fact, taken steps to record the statements of P.W.1 Maheswari, P.W.2 Gayathri, P.W.3 Manickam and P.W.4 Murugan under Section 164 CrPC, but, quite unfortunately, P.W.1 Maheswari and P.W.2 Gayathri turned hostile and as a result of which, the prosecution was virtually put on back foot. We will have to find out whether the other materials produced by the prosecuting agency would establish the case of murder and the criminal intimidation charged as against accused Thiyagarajan beyond reasonable doubt.
7. P.W.3 Manickam and P.W.4 Murugan are admittedly the residents of Chennampalayam village. It is their categorical version that they were at the Mariamman Temple at the time when the occurrence unfolded. They have come out with a natural version that they had not actually witnessed the occurrence, but, of course, they heard a commotion for about 10 long minutes in the house of the deceased Bagkiam. It is their version that after about 10 minutes commotion in the house of Bagkiam, P.W.1 Maheswari and P.W.2 Gayathri came out of the house of Bagkiam along with accused Thiyagarajan, who was found armed with blood stained weapon. They would also depose that when they approached, they were threatened with dire consequences, by accused Thiyagarajan. It is found that no enmity was suggested to P.W.3 Manickam and P.W.4 Murugan. Their natural version inspires confidence of this Court.
8. The independent witness, P.W.6 V.A.O. Ravichandran, has spoken to the arrest of accused Thiyagarajan, confession recorded from him and the recovery of the material objects (M.Os.5 to 7) under Ex.P7 Seizure Mahazar.
9. Ex.P12 Chemical Examination Report and Exs.P13 and P14 Serology Reports would establish that M.O.3 Grinder stone, M.O.4 Mat, M.O.6 Trousers and M.O.7 Shirt – recovered from accused Thiyagarajan, and M.O.5 Knife recovered at the instance of accused Thiyagarajan, and M.O.8 Blouse pieces, M.O.9 Saree, M.O.10 Shirt and M.O.11 Brassiere pieces were all found with human blood of ‘B’ group. No explanation is forth coming from the accused Thiyagarajan as to how he sustained blood stains of ‘B’ group in the dresses recovered from him. Exs.P13 and P14 Serology Reports also connect the accused Thiyagarajan to the crime of murder charged as against him.
10. On a perusal of the evidence of P.W.10 Dr.Jeyasingh, in the back ground of Ex.P16 Post-mortem Certificate, it is found that accused Thiyagarajan had received as many as 19 lethal injuries. The doctor was affirmative that the deceased appeared to have died of shock and haemorrhage due to multiple injuries sustained by her about 12 to 16 hours prior to autopsy. He has also deposed to the fact that the stab injuries found on the body of the victim could have been caused with the weapon like M.O.5 Knife and the injuries found on the head would have been caused by dropping M.O.3 Grinder stone.
11. The learned counsel appearing for the appellant/accused would contend that the trial Court did not consider the version of P.W.1 Maheswari that she came to the occurrence village only at 6.00 a.m. on 22.11.2007. Firstly, it is found that P.W.1 Maheswari has completely turned hostile to the case of the prosecution. She also had never bothered about the statement given before P.W.7 Judicial Magistrate Balu and has come out with her own story before the trial Court. In such circumstances, it is totally unsafe to rely upon the version of P.W.1 Maheswari that she came to the occurrence village only at about 6.00 a.m. on 22.11.2007. P.W.12 Inspector Pandian would state that Ex.P18 Complaint was lodged by P.W.1 Maheswari at 00.30 hrs on 22.11.2007 and on the basis of the complaint, First Information Report was prepared and the same was despatched to the learned Judicial Magistrate. Therefore, we are not inclined to accept the version of P.W.1 Maheswari that she was not present at the time when the occurrence took place.
12. The learned counsel appearing for the appellant would submit that the First Information Report reached the learned Judicial Magistrate only at 9.00 a.m. on 22.11.2007, but, P.W.8 Sureshkumar, Grade I Constable attached to Sirumugai Police Station, has stated in his evidence that at about 1.00 a.m. on 22.11.2007 he received the First Information Report from P.W.12 Inspector Pandian and handed over the same to the learned Judicial Magistrate within one hour. Therefore, the learned counsel would submit that there is ample delay in despatching the First Information Report to the learned Judicial Magistrate.
13. It is found that the occurrence had taken place at about 11.00 p.m. on 21.11.2007 in a village and not in a town where the Court of the learned Judicial Magistrate is located. Though P.W.8 Sureshkumar has stated that he entrusted the First Information Report at about 2.00 a.m. on 22.11.2007 itself, the records would disclose that the First Information Report reached the Court at 9.00 a.m. on 22.11.2007. Considering the time at which the occurrence had taken place and the distance between the Court and the Police Station, the Court finds that the delay is not at all inordinate.
14. The learned counsel appearing for the appellant would further submit that P.W.3 Manickam has come out with a version that he chatted with P.W.4 Murugan sitting in Mariamman Temple, but, P.W.4 Murugan has come out with a contradictory version that they were lying in front of the said Temple at the time of occurrence. The learned Additional Public Prosecutor would submit that such a contradiction is not so material to tilt the case of the prosecution.
15. The evidence of P.W.3 Manickam and P.W.4 Murugan would go to show that they were at the portals of Mariamman Temple at the time when the occurrence took place. Whether they heard the commotion while in a sitting posture or lying posture, is found to be totally immaterial.
16. It is also pointed out by the learned counsel appearing for the appellant that P.W.3 Manickam would depose that the commotion went on for about 10 minutes and thereafter, P.W.1 Maheswari, P.W.2 Gayathri and accused Thiyagarajan came out of the house of Bagkiam; whereas P.W.4 Murugan would state that there was some commotion in the house of Bagkiam and immediately thereafter, P.W.1 Maheswari, P.W.2 Gayathri and accused Thiyagarajan came out of the house of Bagkiam. This also is not a very material contradiction. Both of them have clearly spoken to the fact that there was commotion before P.W.1 Maheswari, P.W.2 Gayathri and accused Thiyagarajan came out of the house of Bagkiam.
17. The learned counsel appearing for the appellant would submit that P.W.3 Manickam has deposed that when P.W.4 Murugan and himself proceeded to the house of the victim on hearing the commotion, there was no crowd gathered over there; whereas P.W.4 Murugan has come out with a contradictory version with respect to the crowd collected over there.
18. Both of them would state that there was a commotion and subsequently, there was a crowd collected over there. Of course, P.W.4 Murugan would state that when they proceeded to the scene of occurrence on hearing the commotion, there was a crowd; whereas P.W.3 Manickam would state that such a crowd was not there at the time when they approached the scene of crime. This again is not found to be very material to tilt the case of the prosecution. Such minor contradictions will not go to the root of the case.
19. Of course, P.W.3 Manickam would depose before the Court that P.W.4 Murugan and himself passed on information to the police, but, the Investigating Officer would speak to the fact that it was only P.W.1 Maheswari, who set the law in motion. Quite unfortunately, the author of Ex.P18 Complaint has failed to support the case of the prosecution in spite of her statement under Section 164 CrPC, which was recorded by the learned Judicial Magistrate. The materials on record would show that the First Information Report was registered at 00.30 hrs. on 22.11.2007 itself. No wonder, the Investigating Officer had descended on the scene of occurrence within few hours from the time of registration of the case by him. In the above facts and circumstances of the case, the statement of P.W.3 Manickam that P.W.4 Murugan and himself passed on the message to the police does not loom large. Further, there is no inordinate delay in despatching the First Information Report to the learned Judicial Magistrate. There was virtually no gap for the investigating agency to rope in an innocent person in the case of murder.
20. Coming to the recovery part of the prosecution, the learned counsel appearing for the appellant would submit that M.O.5 Knife was allegedly recovered under the horseradish tree. It is his submission that the recovery under Section 27 of the Indian Evidence Act cannot be given much credence as the recovery was effected in an open place. Further, he would submit that the recovery of the apparels from accused Thiyagarajan is also found to be doubtful.
21. The learned Additional Public Prosecutor would submit that an independent witness, P.W.6 Ravichandran, has spoken to the arrest of accused Thiyagarajan and confession given by him and the recovery made at his instance. It is his further submission that only in a flower garden owned by a private person, the weapon of offence was recovered.
22. If recovery has been made underneath a tree located on a road-side, of course, such a recovery may not inspire confidence. But, the prosecution has come out with a case that underneath horseradish tree located in the midst of the flower garden, M.O.5 Knife was recovered. Therefore, such a location cannot be said to be an open place accessible to the public. For reasons best known to accused Thiyagarajan, he was spotted with the Blood stained clothes. Quite probably apprehending arrest, he might have loitered with the blood stained clothes till he was arrested. But the arrest of the accused and the recovery of the apparels from his person were spoken to by the independent witness, which inspires confidence.
23. Lastly it is submitted by the learned counsel appearing for the appellant that P.W.1 Maheswari being the daughter of the deceased would not have left the scene of occurrence leaving the dead body along with her husband. Therefore, the evidence of P.W.3 Manickam and P.W.4 Murugan that they also spotted P.W.1 Maheswari at the scene of occurrence is found to be quite doubtful, he contends.
24. P.W.1 Maheswari had emerged out of the house of the victim not only with her husband, but also with her lovely daughter P.W.2 Gayathri. Without much delay, it appears, on the complaint given by P.W.1 Maheswari, First Information Report was despatched to the learned Judicial Magistrate. It is not as if P.W.1 Maheswari accompanied a stranger leaving behind the dead body of his mother. She might have been encountered with emotional conflict arisen out of the involvement of her husband in the crime on the one side and the perpetration of crime against her mother on the other side. We cannot determine as to how an individual in such a circumstance would behave. At any rate, such a behavioural pattern exhibited by P.W.1 Maheswari does not create a dent in the case of the prosecution.
25. We find, there is clinching material as detailed above to prove the guilt of the accused. The trial Court has rightly returned a verdict of conviction and sentence against accused Thiyagarajan as stated supra and there is no warrant for interference with the well merited judgment of the trial Court. Therefore, the conviction recorded under Sections 302 IPC and 506 (ii) IPC (2 counts) and the sentence recorded thereunder by the trial Court are confirmed and the appeal is dismissed.
(C.N., J.) (M.J.P., J.) 20.8.2009 Index : Yes Internet : Yes To 1. The Prl. District & Sessions Judge, Coimbatore. 2. The Inspector of Police, Sirumugai Police Station, Coimbatore. 3. The Superintendent of Prison, Central Prison, Coimbatore. 4. The District Collector, Coimbatore. 5. The Public Prosecutor, High Court, Madras. 6. The Section Officer, Criminal Section, High Court, Madras 104. C.NAGAPPAN, J. and M.JEYAPAUL, J. pb Crl.A.No. 76 of 2009 20.8.2009