{"id":180659,"date":"2007-04-05T00:00:00","date_gmt":"2007-04-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/arumuga-boyan-vs-state-on-5-april-2007"},"modified":"2015-06-26T00:44:40","modified_gmt":"2015-06-25T19:14:40","slug":"arumuga-boyan-vs-state-on-5-april-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/arumuga-boyan-vs-state-on-5-april-2007","title":{"rendered":"Arumuga Boyan vs State on 5 April, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Arumuga Boyan vs State on 5 April, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 05\/04\/2007\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nand\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\nCRL.A.160 of 2005\n\nArumuga Boyan\t\t... Appellant\n\t\t\t    Accused No.1\t\n\t\t\t\t\t\t\t\t\nVs\n\nState,rep. by Inspector of Police,\nPalani Taluk Police Station\nDindigul District.\t... Respondent\n\t\t\t    Complainant\n\n \tAppeal under Section 374 of the Code of Criminal Procedure against\nthe judgment, dated 15.12.1999, of the learned Additional Sessions Judge,\nDindigul in S.C.No.80 of 1996.\n\n!For Appellant\t \t:  Mr.L.Shaji Chellan,\n\t\t\t   For Mr.K.Subburam\n\t\t\t\t\t\t\n^For Respondent\t\t:  Mr.N.Senthurpandian,\n\t\t\t   Addl.Public Prosecutor.\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was delivered by P.R.SHIVAKUMAR,J)<\/p>\n
\tThe first accused in a murder case, who stood charged along with one
\nVanchiappan, the second accused, tried and found guilty as per the charge for
\nthe offences of murder and robbery punishable under Sections 302 and 397 IPC and
\nawarded a sentence of life imprisonment and a fine of Rs.1,000\/- for an offence
\npunishable under Section 302 IPC and a sentence of seven years rigorous
\nimprisonment and a fine of Rs.1,000\/- for an offence punishable under Section
\n397 IPC with default sentences by the Judgment of the Additional Sessions Judge,
\nDindigul in S.C.No.80 of 1996 by the Judgment dated 15.12.1999, has come forward
\nwith this appeal, challenging the conviction recorded against him and the
\nsentence imposed on him.\n<\/p>\n
\t2. In brief, the case of the prosecution can be stated as follows:\n<\/p>\n
\t(i) P.W.1 is the paternal uncle of the deceased Krishnamoorthy. P.W.2 is
\nthe wife of the deceased. P.W.3 was working under P.W.1 as a cook during the
\nrelevant period. P.Ws.5 and 6 were employees of Karuppasamy, another paternal
\nuncle of the deceased. One Vanchiappan (A-2) was a servant working under the
\ndeceased. P.W.1 Arumugam Chettiar,  Karuppasamy and the deceased were residing
\nin a farm house at a place called Chitthiraivel Garden situated at a distance of
\ntwo kilometres from Velayuthampalayamputhur. Arumuga Boyan, the appellant\/A-1
\nwas temporarily employed by the above said Karuppasamy for digging a well. On
\n20.10.1995, the deceased went to bed as usual.  A-2, Vanchiappan went to the
\nroom of the deceased in the morning of 21.10.1995 with a cup of coffee to be
\nserved to the deceased.  He found the deceased motionless when he made an
\nattempt to wake him up, became suspicious and hence informed P.W.1 Arumugam
\nChettiar. Thereafter, P.W.1 Arumugam Chettiar went there, examined
\nKrishnamoorthy and found him dead. While the dead body of the above said
\nKrishnamoorthy was examined, a part of a chain usually worn by the deceased
\nmarked as M.O.1 fell down. Immediately, he asked Vanchiappan, the second accused
\nto verify whether the money kept in the house by the deceased was safe, for
\nwhich Vanchiappan informed that the deceased was not in the habit of keeping
\nmoney elsewhere, but used to keep them in his pocket. He also informed P.W.1
\nArumugam Chettiar that the previous day, the deceased was having two bundles of
\n50 rupees currency notes in his pocket. When P.W.1 Arumugam Chettiar searched
\nfor the same, he found the cash was missing. Thereafter, P.W.7 Pananichamy, the
\nVillage Administrative Officer was informed by P.W.1, expressing suspicion in
\nthe death of the deceased Krishnamoorthy that he might have been murdered by A-1
\nArumuga Boyan in order to steal the jewels. P.W.7 in turn, preferred a
\ncomplaint, which was marked as Ex.P.1 and handed over the same to P.W.18, the
\nSub-Inspector of Police, Palani Taluk Police Station at about 02.15 p.m. on
\n21.10.1995. On the basis of the said complaint, P.W.18 registered a case in
\nCrime No.613 of 1995 under Section 174 Cr.P.C. and for an offence under Section
\n380 IPC and prepared Ex.P.13 First Information Report.  P.W.19 the Inspector of
\nPolice, Palani Taluk Police Station  on receipt of a copy of the First
\nInformation Report took up the investigation of the case, went to the scene of
\noccurrence, prepared Ex.P.2 observation mahazar and Ex.P.14 rough sketch,
\nconducted inquest over the dead body of Krishnamoorthy in the presence of the
\nwitnesses and panchayatdars, prepared Ex.P.15 inquest report and then sent the
\ndead body to the hospital through a police constable with a requisition for
\nautopsy. On receipt of the requisition, P.W.15 Dr.Packiyam attached to the
\nGovernment Hospital, Palani conducted autopsy and issued Ex.P.12 Post mortem
\nreport opining that the deceased appeared to have died of asphyxia due to
\nstrangulation about 32 to 38 hours prior to autopsy.  In the course of
\ninvestigation, M.Os.1,13 to 15 and 29 to 32 were seized under cover of a
\nrecovery of mahazar Ex.P.9 by P.W.19.\n<\/p>\n
\t(ii) After examining the witnesses on 21.10.1995 and Dr.Packiyam (P.W.15)
\non 22.10.1995, the Investigating Officer altered the case into one for offences
\npunishable under Sections 302 and 380 IPC, prepared Ex.P.16 Express Report and
\nsent it to the Judicial Magistrate concerned. The appellant\/A-1 was arrested on
\n23.10.1995 whereupon he gave a confession statement, the admissible portion of
\nwhich has been marked as Ex.P.3 and based on the same M.O.2 a gold ring with a
\nred colour stone, M.O.3 an ordinary ring and a sum of Rs.2,000\/- (forty notes of
\n50 rupees denomination) marked as M.O.10 series were recovered under a mahazar
\nEx.P.4.  M.Os.7,34,35 and 36, the clothes and M.O.16 – wrist watch were also
\nrecovered under the said mahazar, as it was informed by the appellant\/A-1 that
\nthey were purchased by him from various shops, using the amount stolen from the
\ndeceased.  After effecting recovery based on the information received from the
\nappellant\/A-1, he was produced before the Judicial Magistrate concerned and
\nremanded to judicial custody. Likewise Vanchiappan, who had been arrayed as the
\nsecond accused, was arrested on 24.10.1995 at about 02.00 p.m. whereupon he gave
\na confession statement, the admissible portion of which has been marked as
\nEx.P.6 and handed over a sum of Rs.312\/- from his pocket. The same was recovered
\nunder a Mahazar Ex.P.7 (marked as M.O.12 series). M.Os.4 and 5 two pieces of a
\ngold chain and M.O.6, the hook of a chain were also recovered under a mahazar
\nEx.P.8, as  they had been allegedly concealed by A-2 in a burrow  of a tree,
\nafter putting them in a bag. Thereafter A-2 was also sent to the Court for
\nremand.\n<\/p>\n
\t(iii) P.W.19, who continued the investigation and recorded the statements
\nof all the witnesses, completed his investigation and submitted a final report
\nalleging the commission of offences punishable under Sections 302 and 397 IPC by
\nthe appellant herein\/A-1 and offences punishable under Sections 302 r\/w 34 IPC
\nand 397 IPC by the other accused, viz., A-2 Vanchiappan.\n<\/p>\n
\t3. The case was committed to the Court of Session and necessary charges
\nwere framed. In order to substantiate the charges, the prosecution examined as
\nmany as 19 witnesses, marked 16 documents and produced M.Os.1 to 38. On
\ncompletion of the evidence on the side of the prosecution, the accused were
\nquestioned under Section 313 Cr.P.C., as to the incriminating circumstances
\nfound in the evidence of the prosecution witnesses.  They denied them as false.
\nNo witness was examined and no document was marked on the side of the accused.\n<\/p>\n
\t4. The trial Court heard the arguments advanced on either side and took
\nthe view that the prosecution had proved the case against both the accused
\nbeyond reasonable doubt, found them guilty as per the charges and awarded
\npunishments as stated above.\n<\/p>\n
\t5. As against the conviction recorded and the sentence, Vanchiappan, the
\nsecond accused preferred an appeal before the Principal Bench of Madras High
\nCourt in Crl.A.No.176 of 2000 and the same happened to be allowed by a Division
\nBench of the said Court on 21.03.2003 holding that the charges against him had
\nnot been proved beyond reasonable doubt and that he was entitled to the benefit
\nof doubt. Consequently he was acquitted of all the charges.\n<\/p>\n
\t6. As against the conviction recorded in respect of the appellant\/A-1 and
\nthe sentence awarded, the appellant\/A-1 has preferred this appeal, citing
\nvarious grounds found in the memorandum of appeal.\n<\/p>\n
\t7. Advancing arguments on behalf of the appellant\/A-1, Mr.L.Shaji Chellan,
\nlearned counsel made the following submissions:\n<\/p>\n
\tThere was no eye witness to the occurrence and the prosecution case was
\nrested entirely on circumstantial evidence. The circumstances relied on by the
\nprosecution do not form a complete chain of events, so as to bring home the
\nguilt of the appellant\/A-1 beyond reasonable doubt.  The motive alleged by the
\nprosecution was that there was a dispute regarding the payment of wages. On the
\nother hand, the evidence adduced was to the effect that the appellant\/A-1 was an
\nemployee of one Karuppasamy, paternal uncle of the deceased and not an employee
\nof the deceased. It was Vanchiappan\/A-2, who was under the employment of the
\ndeceased Krishnamoorthy.  The specific case of the prosecution is that the
\nappellant\/A-1 and Vanchiappan\/A-2 jointly caused the death of the deceased; that
\nVanchiappan\/A-2 squeezed the scrotum of the deceased, while the appellant
\nthrottled and caused the death of the deceased and that both of them, after
\ncausing the death of the deceased Krishnamoorthy, removed the jewels worn by him
\nand the money that was found in possession of the deceased and shared them among
\nthemselves. In the present case, in order to bring home the guilt of the
\naccused, the prosecution mainly relied on last seen theory coupled with the
\nalleged arrest, confession statement and recovery. Even though the above said
\nVanchiappan\/A-2 was also convicted along with the appellant herein\/A-1 by the
\ntrial Court, the said Vanchiappan\/A-2 was subsequently acquitted by a Division
\nBench of this Court, allowing his appeal, viz., Crl.A.No.176 of 2000. Thus the
\ncase of the prosecution as against the appellant\/A-1 should be treated on par
\nand the appellant\/A-1 also should be held entitled to an order of acquittal in
\nthe hands of this Court.\n<\/p>\n
\t8. The learned counsel for the appellant in addition to the above said
\ncontentions has also made the following submissions in support of his arguments
\nfor the acquittal of the appellant\/A-1:\n<\/p>\n
\tThe last seen theory propounded by the prosecution must necessarily fail,
\nin view of the contradictory versions of P.W.1, P.W.4 and P.W.5 regarding the
\nhouse in which P.W.4 was witnessing T.V. Programme before he allegedly saw the
\nappellant\/A-1 near to place of occurrence at about 02.00 a.m. and asked about
\nthe purpose of his presence there at odd hours. Apart from the said discrepancy,
\nthe prosecution story of arrest and recovery should be disbelieved, as there are
\nevidence to show that the Investigating Agency, unable to fix the culprits, at
\nthe first instance, took all the farm servants to custody on suspicion. If at
\nall the Investigating Officer had been informed of the suspicious presence of
\nthe appellant\/A-1 in the scene of occurrence during night hours and of his
\nsuspected involvement in the commission of the crime, others would not have been
\ntaken into custody on suspicion and thus it is obvious that the last seen theory
\ncould be only a subsequent introduction. Even assuming that the prosecution
\nversion regarding arrest and recovery can be believed, the same would, at best,
\nbe sufficient to hold the appellant guilty of an offence punishable under
\nSection 411 IPC and not an offence of murder punishable under Section 302 IPC
\nand hence the conviction for murder under Section 302 IPC and the sentence
\nimposed are liable to be set aside, with the result that the appellant is
\nentitled to an acquittal in the hands of this Court for the offence of murder.\n<\/p>\n
\t9. The Court heard the Additional Public Prosecutor on the above said
\ncontentions made on behalf of the appellant\/A-1 and paid its anxious
\nconsiderations on the submissions made.\n<\/p>\n
\t10. The appellant\/A-1 did not dispute before the trial Court the cause of
\ndeath of the deceased Krishnamoorty. After the death was reported to the police
\nand the case was registered, the Inspector of Police took up the investigation,
\nwent to the place of occurrence, conducted an inquest over the dead body of the
\ndeceased and prepared Ex.P.15 inquest report in the presence of the witnesses
\nand Panchayatdars. The body was also sent to the hospital with a requisition for
\nautopsy. On receipt of requisition for autopsy Ex.P.11, P.W.15, the Assistant
\nSurgeon attached to the Government Hospital, Palani conducted autopsy, noted the
\ninjuries found on the dead body and issued Ex.P.12 post mortem certificate,
\nopining that the deceased appeared to have died of asphyxia due to strangulation
\nabout 32 to 38 hours prior to autopsy. Discharge of blood through the nostrils,
\nswelling in the eyelids and scrotum, an abrasion on the left side of the chin
\nmeasuring 0.5 cm. X 0.5 cm and a contusion over the left side of the neck
\nmeasuring 4 cm x 4 cm were also found and noted by the Medical officer, P.W.15.
\nThe left horn of the hyoid bone was also found fractured. The medical evidence
\ndiscussed above conclusively establish that the death of the deceased
\nKrishnamoorthy was the result of manual strangulation and was thus the result of
\nan act of the homicidal violence.  Besides the fact that the deceased died due
\nto  asphyxia caused by strangulation, an act of homicidal violence was not
\nquestioned by the appellant\/accused No.1 at any stage of the proceedings. Hence
\nthe same has got to be recorded so without any impediment whatsoever and the
\nfinding of the trial Court in this regard deserves to be confirmed.\n<\/p>\n
\t11. In instance case, the story of the prosecution is that the
\nappellant\/A-1 murdered the deceased Krishnamoorthy with the help of A-2
\nVanchiappan, removed the ornaments and cash kept by the deceased and shared them
\nbetween themselves. It is true that the appellant\/A-1 and Vanchiappan\/A-2 were
\nconvicted by the trial Court and on a separate appeal preferred by the above
\nsaid Vanchiappan\/A-2, a Division Bench of this Court allowed the appeal and
\nacquitted A-2 of the charges against him. But the arguments advanced by the
\nlearned counsel for the appellant\/A-1 seeking parity of treatment of his case
\nwith that of Vanchiappan\/A-2 cannot be sustained either in law or on facts. It
\nis a well known principle that the acquittal of one of the co-accused in a given
\ncase, need not necessarily result in the acquittal of the other accused persons.
\nIn the case on hand, the overt act alleged against Vanchiappan\/A-2  was that he
\nshared the common intention with the appellant herein\/A-1 to kill
\nKrishnamoorthy, helped the appellant\/A-1 in executing the common intention by
\nsqueezing the scrotum of the deceased while the appellant\/A-1 throttled and
\ncaused the death of Krishnamoorthy and thereafter shared the jewels and cash
\nremoved from the deceased Krishnamoorthy. Even though the last seen theory could
\nbe equally applied against A-2, since the alleged arrest, confession statement
\nof A-2 and the consequential recovery made based on the information received him
\nwere disbelieved, the Division Bench of this Court held that the circumstantial
\nevidence was not enough to form a complete chain of events  so far as A-2 was
\nconcerned, entertained doubt over the prosecution case as against A-2
\nVanchiappan and hence chose to acquit him giving the benefit of doubt. It is
\npertinent to note that the acquittal of A-2 was not an honourable acquittal but
\nwas one on the basis that the benefit of doubt should go to the accused person.
\nTherefore, the above said contention put forth by the learned counsel for the
\nappellant that the appellant should be acquitted simply because Vanchiappan\/A-2
\nwas acquitted does not merit acceptance of the Court and the same deserves to be
\nrejected.\n<\/p>\n
\t12. This Court should also necessarily discredit the further contention of
\nthe learned counsel for the appellant attacking the Judgment of the trial Court
\non the ground that there were discrepancies in the case of the prosecution
\nregarding motive and last seen theory, so far as the appellant was concerned. In
\nfact the discrepancies and contradictions pointed out by the learned counsel for
\nthe appellant are not discrepancies or contradictions at all and they should be
\ndisregarded as trivial, if at all they are to be termed discrepancies. The
\nlearned counsel for the appellant pointed out that Vanchiappan\/A-2 alone was
\nemployed under the deceased. But on the other hand, according to the final
\nreport, the case of the prosecution was that the dispute regarding the payment
\nof wages between the appellant and the deceased happened to be the motive for
\nthe occurrence. A close scrutiny of the evidence adduced on the side of the
\nprosecution reveals that the said contention made on behalf of the appellant is
\nuntenable. Clear evidence has been adduced to the effect that the appellant\/A-1
\nwas temporarily employed by Karuppasamy,  the paternal uncle of the deceased,
\nfor digging a well and that it was Vanchiappan\/A-2, who was under the employment
\nof the deceased. Clear evidence has also been adduced to the effect that the
\nappellant\/A-1 was not paid by the above said Karuppasamy even for the work done
\ntill the date of occurrence; that the appellant\/A-1 was hard pressed for money
\nand was facing a threat from the owner of the crane hired for digging the well
\nfor the removal of the same from the site for non-payment of hire charges; that
\nthe appellant\/A-1 approached the deceased to help him financially to ward off
\nthe above said difficulty and the same was turned down by the deceased and that
\nwhen the appellant shared his agony with Vanchiappan\/A-2, it was, he who
\ninformed the appellant that there had been change in the attitude of the
\ndeceased towards A-2 Vanchiappan, in so far as he unusually started asking for
\nthe account of the money entrusted with A-2 for specific purposes periodically.
\nAccording to the prosecution version, as revealed by the evidence adduced on the
\nside of the prosecution, the motive for the alleged occurrence, so far as the
\nappellant is concerned, was wrongful gain, as he was hard pressed for money.
\nTherefore, the contention of the learned counsel for the appellant that the
\nmotive part of the prosecution case as against the appellant is concerned should
\nbe rejected, has got to be discountenanced.\n<\/p>\n
\t13. The learned counsel for the appellant\/A-1 has made an attempt to
\nproject, as if there were two versions regarding the lodging of the complaint.
\nAccording to the learned counsel for the appellant, P.W.1 admitted to have given
\nthe complaint to the police in the scene of occurrence, whereas according to the
\nprosecution case, it was P.W.7, the Village Administrative Officer who lodged
\nthe complaint with the police, after being informed by P.W.1 followed by his
\nvisit to the scene of occurrence. This Court paid its attention to the above
\nsaid submission made by the learned counsel for the appellant\/A-1 and
\nscrutinised the evidence of P.W.1, P.W.7 and P.W.18, the Sub-Inspector of Police
\nwho registered the case, based on the complaint lodged by P.W.7, the Village
\nAdministrative Officer. This Court also perused Ex.P.1 complaint and Ex.P.13,
\nFirst Information Report. When the above said evidence both oral and documentary
\nare marshalled in a proper perspective, this Court is unable to accept the above
\nsaid contention raised by the learned counsel for the appellant\/A-1. At the
\nfirst instance, it is the clear and cogent evidence of P.W.1 that he met the
\nVillage Administrative Officer and informed him orally; that the Village
\nAdministrative Officer asked him to go and remain in the scene of occurrence,
\ninforming him that he would come there and collect information; that thereafter,
\nthe Village Administrative Officer went to the place of occurrence and that
\nafter seeing the dead body, the Village Administrative Officer went to the
\npolice station and gave the complaint and that only thereafter the police came
\nto the place of occurrence at about 04.00 p.m. The said testimony of P.W.1
\nstands fully corroborated by the testimony of P.W.7, P.W.18 and the documentary
\nevidence, viz., Ex.P.1 and Ex.P.13. P.W.7 has, in clear and unambiguous terms,
\nstated that at about 12 noon on 21.10.1995, P.W.1 met him and informed him of
\nthe incident, pursuant to which, he went to the place of occurrence at about
\n01.00 p.m., thereafter proceeded towards the police station and gave the written
\ncomplaint Ex.P.1  at about 02.15 p.m. He has also given a clear explanation for
\nnot recording the statement of P.W.1, to make the same the basis of the First
\nInformation Report. It is true that P.W.1, during cross-examination, admitted
\nthat the police came to the place of occurrence and obtained the complaint
\nstatement from him. But the same is nothing but a misconception made by him
\nregarding the nature of statement recorded by the Investigating Officer in the
\nscene of occurrence.  He seems to have mistaken Section 161 statement recorded
\nby the Investigating Officer to be the complaint statement. Thus, according to
\nthe considered view of this Court, there is no contradiction or discrepancy in
\nthe evidence adduced on the side of the prosecution regarding the lodging of the
\ncomplaint, as claimed by the learned counsel for the appellant\/A-1 and the above
\nsaid contention raised by the learned counsel for the appellant\/A-1 does not
\nmerit any acceptance by this Court.\n<\/p>\n
\t14. The further contention raised on behalf of the appellant that the
\ncomplaint could have been created after preliminary investigation and
\ndeliberation, also does not deserve any acceptance by this Court. According to
\nthe learned counsel, A-2 Vanchiappan and other servants present in the farm
\nhouse could not have been taken into custody by the police on suspicion, if at
\nall Ex.P.1 would have come into existence at the time and place and in the
\nmanner as spoken to by the prosecution witnesses, since a suspicion against the
\nappellant\/A-1 alone had been spelt out in the said complaint. The Court is
\nunable to accept the said contention for the simple reason that the suspicion
\nwas not only against the appellant herein\/A-1 but also against A-2 Vanchiappan,
\nwho stood charged for the alleged offences along with the appellant herein.
\nMoreover, there was no clear assertion in the complaint Ex.P.1 that the
\nappellant\/A-1 alone might have committed the crime. It had been simply stated in
\nthe complaint that the involvement of the appellant\/A-1 in the commission of the
\ncrime was suspected. The same will not be enough to rule out the involvement of
\nA-2 Vanchiappan or others also in the commission of the offences along with the
\nappellant\/A-1. Therefore, no inference could be made in this regard, as
\ncontended by the learned counsel for the appellant\/A-1.\n<\/p>\n
\t15. The next contention raised by the learned counsel for the appellant\/A-
\n1 is that the evidence of P.W.1 and P.W.4 adduced  in support of the last seen
\ntheory propounded by the prosecution should be rejected, in the light of vital
\ncontradictions found in the evidence of the prosecution witnesses.  The
\ncontradiction pointed out by the learned counsel for the appellant\/A-1 are as
\nfollows:\n<\/p>\n
\tP.W.4 Pattan @ Pattappa Nadar is alleged to have seen the appellant\/A-1
\nsitting on a grinder stone near the cot on which the deceased was sleeping at
\nabout 02.00 a.m on 21.10.1995 and asked him about his presence at odd hours in
\nthe said place, for which the reply from the appellant\/A-1 was that he had
\nsought protection from rain, as it was raining. In order to explain the
\ncircumstances under which P.W.4 happened to be in the said place, he has stated
\nthat he was returning after witnessing TV programme in the house of P.W.1
\nArumugam Chettiar. On the other hand, P.W.1 would state that TV was available
\nboth in his house and the house of Karuppasamy. But it was in the house of
\nKaruppasamy, P.W.4 was witnessing the TV programme. At this stage, it is the
\nevidence of P.W.5 Shanmugam that TV was available only in the house of P.W.1 and
\nnot in the house of Karuppasamy. The above said discrepancies regarding the
\navailability of a television in the farm house of Karuppasamy will affect the
\nveracity of P.W.4, who claimed to have seen the appellant\/A-1 at about 02.00
\na.m. in the scene of occurrence.\n<\/p>\n
\t16. This Court, after paying its anxious consideration to the above said
\ncontention raised by the learned counsel for the appellant\/A-1, is of the
\nconsidered view that the above said discrepancy is only minor most and is not
\ncapable of either affecting the veracity of P.W.4 or the prosecution case of
\nlast seen theory. The location of the houses of the deceased, P.W.1 and
\nKaruppasamy provides a vital clue in this regard. It is a fact that cannot be
\ndisputed that they are not separate houses, but a single building under a common
\nroof divided into three separate portions. All the three persons are closely
\nrelated. P.W.1 and Karuppasamy are brothers and the deceased Krishnamoorthy was
\nthe son of another bother of P.W.1. Karuppasamy’s portion lies on the extreme
\nnorth and the deceased Krishnamoorthy’s portion lies on the south. P.W.1’s
\nportion lies in between the two. It is the evidence of P.W.4 that he witnessed
\nthe TV programme on the date of occurrence in the farm house of P.W.1. As P.W.1
\nand Karuppasamy happened to be the brothers and were residing in adjoining
\nportions, the above said discrepancy might have arisen regarding the house in
\nwhich P.W.4 was witnessing the TV programme before he met the appellant\/A-1 near
\nthe scene of occurrence. Therefore this Court comes to a conclusion that the
\nabove said discrepancy will not in any way affect the veracity of P.W.1 and
\nP.W.4 and the prosecution version regarding its last seen theory and thus the
\nsaid argument advanced on behalf of the appellant\/A-1 is also hereby rejected.\n<\/p>\n
\t17. The appellant\/A-1, on arrest, was found with an injury on his neck,
\nwhich is proved to be an injury which could have been caused by the nails of the
\ndeceased at the time of strangulation, as evidenced by the testimony of P.W.14
\nDr.Chandramathi and Ex.P.10 Medical Certificate. The alleged statement made by
\nthe appellant to P.W.14, Dr.Chandramathi, as to how he had sustained that
\ninjury, no doubt, will be inadmissible in view of the bar provided under Section
\n26 of the Indian Evidence Act as the said information could not be said to have
\nled to the discovery of any new fact which was not known earlier to the
\nInvestigating Agency.  But the fact that he was found with such an injury  and
\nthe probability of having sustained such an  injury at the time of occurrence as
\nspoken to by the Medical Officer in the absence of any other explanation by the
\nappellant\/A-1 provides a link in the chain of circumstances to prove the case of
\nthe prosectuion that it was the appellant\/A-1, who caused the death of
\nKrishnamoorthy.\n<\/p>\n
\t18. No doubt in the instant case, there is no eye witness for the
\noccurrence and the entire case of the prosecution rests on the circumstantial
\nevidence. In such a case, the duty of the Court is to examine the circumstantial
\nevidence and make a decision, as to whether the circumstances so established
\nform a complete chain of events, so as to bring home the guilt of the accused,
\nwithout giving any way for any other hypothesis and whether the circumstances,
\nif accepted, are consistent only with guilt of the accused and inconsistent with
\nhis innocence. When such a test is applied, this Court has to come to the only
\nconclusion that the prosecution has established its case against the appellant
\nherein\/A-1 beyond all reasonable doubt by cogent and acceptable circumstantial
\nevidence. The first circumstance is that the appellant\/A-1 was hard pressed for
\nmoney and was even facing a threat of the removal of the crane from the place
\nwherein he was digging a well for Karuppasamy, as he was not in a position to
\nmake payment of even the hire charges to the owner of the crane. The earnest
\nappeal made by him to the deceased, who was none other than the brother’s son of
\nthe above said Karuppasamy, to provide him with financial help to ward off the
\nabove said difficulty, was turned down by the deceased. The same provided the
\nmotive for the appellant\/A-1 herein to commit the alleged murder for gain. The
\nsecond circumstance is that the appellant herein\/A-1 was seen at about 02.00
\nhours (night time) sitting on a grinder stone near the cot on which the deceased
\nwas sleeping just prior to the occurrence.  The third circumstance is that after
\nthe occurrence, he left the village, after informing  P.W.6 that there were a
\nlot of water in the well to be lifted before the excavation work could be
\ncontinued and directing him to lift the water using the pumpset and keep the
\nwell dry, so that on his return with the workers he would continue the
\nexcavation work. But thereafter, he failed to return, as he promised and was
\nfound missing from the date of occurrence. The fourth circumstance is that the
\narrest and recovery of articles based on the information furnished by him. The
\nevidence in this regard adduced by P.W.19 Investigating Officer stands fully
\ncorroborated by the mahazar witness P.W.7. M.O.2 – a gold ring with a red colour
\nstone, M.O.3-an ordinary ring, M.O.16-a gold colour wrist watch,  M.Os.7,34,35
\nand 36-the clothes and M.O.10 series a sum of Rs.2,000\/- were recovered under
\ncover of a mahazar marked as Ex.P.4. The above said articles were recovered
\nbased on the information furnished by A-1. M.Os.2 and 3 have been identified by
\nthe witnesses to be that of the deceased. M.Os.7,16,34,35 and 36 have been
\nidentified and proved to be the articles purchased by the appellant\/A-1 using a
\nportion of the sum of Rs.5,000\/-, he had stolen from the deceased.  Clear
\nevidence has been adduced to the effect that the deceased was having in his
\npossession two bundles of 50 rupees currency notes. The appellant had taken for
\nhim as his share one of the bundles amounting to Rs.5,000\/- out of which, he
\npaid a sum of Rs.1,000\/- to the owner of crane. The said amount was also
\nrecovered from the owner of the crane. A sum of Rs.2,000\/- was spent by the
\nappellant\/A-1 for the purchase of clothes and a wrist watch, which fact stands
\nsubstantiated by the evidence of mahazar witnesses as well as the shop owners
\nfrom whose shops, the said articles were purchased. A balance amount of of
\nRs.2,000\/- (forty 50 notes of rupees denomination) was found concealed with the
\nabove said articles in a trunk box kept in the house of the appellant’s father
\nand recovered. The appellant is not in a position to give any account of the
\ncircumstances under which he happened to possess the said articles. When all
\nthese circumstances are put together, the only conclusion this Court can arrive
\nat is that it was the appellant\/A-1 who committed murder for gain and robbery.\n<\/p>\n
\t19. No doubt, it is a well known preposition that suspicion, however
\nstrong, cannot take the place of proof and that a man, who is in possession of
\nstolen goods, can be presumed either to have stolen the same or received the
\ngoods knowing them to be stolen, unless he can account for his possession, as
\nper Section 114 illustration (a) of the Indian Evidence Act. But such a
\npresumption can be extended further, to hold that such a person has committed
\nthe offence of murder also, if there are circumstances to connect the accused
\nwith the murder. In this case, in addition to the fact that the appellant\/A-1
\nwas found in possession of the above said articles belonging to the deceased and
\nwas not in a position to account for the same, there are other circumstances, as
\nnarrated above, to connect him with the murder also and hence this Court is of
\nthe considered view that the prosecution has succeeded in establishing the
\ncharges made against the appellant\/A-1 for murder and robbery. The learned trial
\nJudge has properly appreciated the evidence adduced on behalf of the prosecution
\nas against the appellant\/A-1 and come to a correct conclusion that the appellant
\nwas the person, who committed murder of Krishnamoorthy and stolen away the
\njewels and cash from the deceased and thus committed the offence of murder
\npunishable under Section 302 IPC.\n<\/p>\n
\t20. So far as the conviction for the second charge is concerned, there
\nseems to be a mistake in the framing of the charge. Section 397 IPC does not
\nconstitute a separate offence in itself. It only prescribes a minimum punishment
\nin certain circumstances in respect of an offence punishable under Sections 392
\nor 394 IPC. In this case, it is the case of the prosecution that the appellant
\ncommitted robbery after causing the death of the deceased by strangulation. The
\nevidence so far discussed in respect of the charge under Section 302 IPC will be
\nequally applied to the offence of robbery punishable under Section 392 IPC. As
\nit has been established by the prosecution that during the course of committing
\nrobbery, the appellant has caused a grievous injury by strangulation, which
\neventually resulted in the death of the deceased, the act of the appellant\/A-1
\ndefinitely falls within the purview of Section 397 IPC which prescribes a
\nminimum sentence of seven years for an offence of robbery coupled with an
\nattempt to cause the death or grievous hurt.  No doubt, the trial Court has
\ncommitted a mistake in framing a charge under Section 397 IPC alone without
\nmentioning the substantive penal provision, viz., Section 392 IPC in this case.
\nThe same does not go to the root of the case so as to vitiate the proceedings or
\nthe conviction recorded by the Court. The trial Court was content with imposing
\nthe minimum punishment prescribed under Section 397 IPC. Had it chosen to
\ninflict a graver punishment, then there could be a possibility of advancing an
\nargument that the trial Court did not apply its mind to the relevant penal
\nprovision.  Thus this Court comes to a conclusion that no prejudice has been
\ncaused in awarding the minimum punishment prescribed in Section 397 IPC.
\nTherefore, the conviction recorded and sentence awarded for the second charge
\nshall be corrected as a conviction and sentence for an offence punishable under
\nSection 397 r\/w Section 392 IPC and the sentence of seven years imprisonment,
\nfine and default sentence awarded by the trial Court shall stand confirmed with
\nsuch a correction indicated above.\n<\/p>\n
\t21. For all the reasons stated above, this Court comes to the conclusion
\nthat subject to above said modification regarding conviction for the charge of
\nrobbery, the judgment of the trial Court does not warrant disturbance either
\nfactually or legally, so far as the appellant\/A-1 is concerned and that the
\nCriminal Appeal must fail and fails. Accordingly, it is dismissed.\n<\/p>\n
SML<\/p>\n
To:\n<\/p>\n
1.The Additional Sessions Judge,
\n  Dindigul.\n<\/p>\n
2.The Inspector of Police,
\n  Palani Taluk Police Station
\n  Dindigul District.\n<\/p>\n
3.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Arumuga Boyan vs State on 5 April, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-180659","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nArumuga Boyan vs State on 5 April, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/arumuga-boyan-vs-state-on-5-april-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Arumuga Boyan vs State on 5 April, 2007 - 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