THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE DR.JUSTICE ANITA SUMANTH Criminal Appeal No.494 of 2016 A.Kaliyaperumal .. Appellant - Vs -
State rep by Inspector of Police, Needamangalam Police Station, Tiruvarur District.
(Cr.No.170 of 2010) .. Respondent Prayer:- Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment passed by the learned District and Sessions Judge, Tiruvarur in S.C.No.38 of 2011 dated 14.08.2012.
For Appellant : Mr.R.Sankarasubbu for Mr.S.Manoharan For Respondent : Mr.P.Govindaraj Additional Public Prosecutor - - - - -
J U D G M E N T
(Judgment of the Court was delivered by S.Nagamuthu,J.)
The appellant is the sole accused in S.C.No.38 of 2011 on the file of the learned District and Sessions Judge, Tiruvarur. He stood charged for the offences under Sections 406, 404 and 302 of IPC. The trial Court, by judgement dated 14.08.2012, convicted him only under Sections 302 and 404 of IPC and sentenced him to undergo imprisonment for life (No fine was imposed) for the offence under Section 302 of IPC and to undergo rigorous imprisonment for one year for the offence under Section 404 of IPC. Challenging the above said conviction and sentence, the accused is before this Court with this criminal appeal.
2. The case of the prosecution in brief is as follows:-
2.1. The accused, aged about 27 years, at the time of occurrence, was residing at Kamaraj Nagar, Meikavalputhur, Jayamkondam Taluk, Ariyalur District. He was doing agricultural coolie work in the village. With great difficulty, he borrowed money from various persons and went to Mauritius Country for employment. One Mr.Baskar (P.W.8), a person hailing from the neighbouring village was also working along with him in Mauritius. Since the salary was too low, he returned to India. While he returned, P.W.8 had handed over a cellphone to him with a request to hand over the same to the wife of P.W.8. But, the accused stealthily retained the same along with the SIM card. According to him, during the month of May, 2010, through the said cellphone there was a phone call. It was from an unknown number. The accused attended the said call. From the other end, there was a female voice. The said girl introduced herself as "Ambika" (the deceased herein). From then onwards, the deceased and the accused used to exchange pleasantries through cellphone talks. But, they had no occasion to meet. It slowly developed in a deep love for each other and over phone, they decided to marry.
2.2. It is further alleged that the deceased wanted the accused to come to Annaikarai on 17.06.2010 to meet her. Accordingly, the accused went to Annaikarai village and met the deceased. At that time, he told the deceased that he had incurred a huge loss in going over to Mauritius and the creditors were bringing pressure upon him to repay the loan amounts. The deceased gave her gold jewels to him to pledge and mobilize money to repay the loan. Accordingly, the accused received the gold jewels, pledged the same in a pawn broker shop at Meensurutti. Again on 25.06.2010, the accused met the deceased, received some more gold jewels and pledged the same.
2.3. On 27.06.2010, the accused and the deceased went together to Mayiladuthurai and stayed at the house of a friend of the accused. Since the family members of the deceased were making arrangements to fix a bridegroom, the deceased left her parental home without informing to her parents taking the jewels and that is how, she went to Mayiladuthurai along with the accused and stayed at the house of his friend. At that time also, the deceased gave some more jewels which the accused pledged. The accused repaid the loan dues to some extent.
2.4. On 10.07.2010, the accused and the deceased went to Bargur where the accused purchased covering chain, covering bangles and dress to the deceased. Again, both the deceased and the accused went and stayed at the house of Mr.Gopi, a friend of the accused. On 11.07.2010, again he received some more jewels from the deceased and pledged the same. On 19.07.2010, the accused and the deceased went to Salem and from there, they went to Ernakulam in Kerala State. But, the atmosphere in Kerala State was not conducive for the deceased and therefore, on 21.07.2010, they went to Coimbatore. Thereafter, they came to Kumbakonam via, Trichy. They waited till 11.30 p.m. in the bus stop. In the bus stop at Kumbakonam, they inquired a conductor as to whether there was any bus to go to Veeracholapuram. The deceased inquired him as to why, he wanted to go to Veeracholapuram. At that time, the deceased, for the first time told her that he hails from Meikavalputhur village which is a neighbouring village of the deceased. From that conversation, it came to light that the village of the deceased is a neighbouring village. It also came to the knowledge of the deceased that the accused belonged to Scheduled Caste.
2.5. On knowing the community of the accused, the deceased told that since she belonged to an upper caste namely Vanniyar community, she would not marry the accused. She wanted the accused to return all her jewels. She also threatened the accused that she would inform about all the happenings to her parents and also make a complaint against the accused to the police. This again resulted in a quarrel between them. Then, the accused, persuaded her and after she became calm, he took her to Needamangalam from Kumbakkonam. At Needamangalam, they went in search of the house of an engineer known to the accused. But the house could not be located. Thereafter, the accused took the deceased to Kamaraj colony at Needamangalam. At a culvert, they sat together and were taking for a long time. Then, he took her into a bush, there were three trees at that place. There also the deceased started demanding the accused to return the jewels. She threatened the accused that she would go to the police with a complaint and she started to move. The accused got wild, he immediately put a towel around the neck of the deceased, strangulated her and killed her. Then, he removed a pair of gold ear studs with thongal. He placed a stone on the head of the deceased. Then, he escaped from the place of occurrence. The occurrence was not witnessed by anyone.
2.6. P.W.1 the Village Administrative Officer at Needamangalam came to know about the laying of the dead body on 22.07.2010 at 10.00 a.m. He went to the place of occurrence and found the dead body of a female aged about 30 years. Then, he went to Needamangalam police station and made a complaint on the same day at 11.30 a.m. Ex.P1 is the complaint and Ex.P16 is the F.I.R. At that time, neither the assailant nor the identity of the deceased was known.
2.7. P.W.21 took up the case for investigation. He went to the place of occurrence, prepared an observation mahazar and a rough sketch at the place of occurrence and recovered the material objects (M.Os.16 to 30) found at the place of occurrence. Then, after holding inquest on the body of the deceased, he forwarded the same for postmortem.
2.8. P.W.15 Dr.Chitra conducted autopsy on the body of the deceased on 23.07.2010 at 05.00 p.m. She found the following injuries:
“Injuries: Teethes were broken. 15 x 10 cm contusion on the on the left side of the neck. Contusion on the left side lower jaw.
10 x 15 cm contusion on the right side demeral region of the scalp. 15 x 10 cm contusion on the left side of the scalp. Contusion on the left side of the breast. Contusion on the right side of the leg. 10 ml of liquid in the stomach. c/s pale. Heart, lungs liver kidney c/s pale. Uterus normal and empty.”
She opined that the death of the deceased was due to ligature strangulation. She further opined that the death would have occurred 10 to 20 hours prior to the occurrence. Ex.P15 is the postmortem certificate.
2.9. P.W.21 during the course of investigation, collected the bloodstained clothes from the body of the deceased. In the notebook found at the place of occurrence, a cellphone number was noted down with number 9884906265. The inspector of police immediately contacted to the said cell phone. One Elanchezhian responded. Mr.Elanchezhian (P.W.4) is the brother of the deceased. P.W.21 informed him about the laying of a dead body. P.W.4 informed P.W.21 that the deceased was missing from 27.06.2010 and a complaint was also registered in the jurisdiction police station. He and his other relatives came to the place of occurrence and identified the dead body. It was only thereafter, the body was sent for postmortem as stated above.
2.10. When the investigation was in progress, the accused appeared before P.W.1 on 27.07.2010 at 06.30 a.m. and the accused wanted to give a voluntary confession. Having ascertained that the accused was in a voluntary mode to make confession, he allowed him to confess orally and reduced the same in writing (vide Ex.P23). Then, along with the special report, he produced him before P.W.21.
2.11. P.W.21 arrested him at 08.00 a.m. on 27.07.2010 in the presence of P.W.1 and another witness. While in custody, he disclosed the shop where he had pledged the jewels and also the place where he had concealed the cellphone and the towel. In pursuance of the same, he took the police and the witnesses to the place of hide out and produced the towel (M.O.34), Nokia cell phone (M.O.36). Then, he took the police to a pawn broker by name Manicksanth (P.W.10). From his shop, the jewels pledged by the accused which belonged to the deceased were all recovered. On 27.07.2010, at 02.15 p.m., he took the police and the witnesses and identified another pawn broker shop known as “Kandan Jewellery”. From that shop a pair of gold ear studs with thongal (M.O.No.43) was recovered. On returning to the police station, he forwarded the accused to Court for judicial remand. On completing the investigation, he laid chargesheet against the accused.
2.12. Based on the above materials, the trial Court framed charges as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 21 witnesses were examined, 31 documents and 43 material objects were marked.
2.13. Out of the said witnesses P.W.1 the Village Administrative Officer has spoken about the laying of the dead body of the deceased on 22.07.2010 at 10.00 a.m., complaint made by him, preparation of the observation mahazar and rough sketch and recovery of material objects from the place of occurrence. He has also spoken about the extra judicial confession made by the accused. P.W.2 the Village Assistant has also spoken about the same facts as spoken by P.W.1. P.W.3 was running a tea shop at Needamangalam main road. According to him on 22.07.2010, the accused came along with a girl and had tea. Later on, he came to know that the said girl was laying dead.
2.14. P.W.4 is the brother of the deceased. He has stated that the deceased was found missing from 27.06.2010 onwards. He has further stated that on 22.07.2010 at 03.00 p.m. on receiving a phone call from P.W.21, he has identified the ear studs and other personal belongings of the deceased. P.W.5 the Head Clerk of the Judicial Magistrate Court has stated that he forwarded the material objects to forensic lab for chemical examination as instructed by the learned Magistrate. P.W.6 has stated that he found the dead body at the place of occurrence on 22.07.2010 at 07.00 a.m. and informed P.W.2 about the same.
2.15. P.W.7 is the father of the deceased. He has also spoken about the missing of the deceased from 27.06.2010. He has identified the ear studs belonging to the deceased. P.W.8 has stated that when he was in Mauritius, the accused was also with him. He handed over his cell phone bearing No.9524743551 with a request to hand over the same to his wife. But the accused did not give the same to his wife. When enquired, the accused told that he misplaced the same somewhere. P.W.9 is a relative of the accused. He has stated that he assisted the accused to pledge the jewels in the shops of P.Ws.10 and 11.
P.W.10 has stated about the pledging of the jewels belonging to the deceased by the accused with the help of P.W.9. prior to the occurrence i.e. on 25.06.2010, 30.06.2010 and 12.07.2010. He has further stated that all the jewels were recovered by the police on 27.07.2010. P.W.11 has stated that the accused pledged a pair of ear studs with thongal for a sum of Rs.5,155/-. It was later on recovered by the police. The same has been identified to be that of the deceased, which was lastly worn by the deceased.
2.16. P.W.12 is an Assistant from the forensic lab has stated that she examined the material objects and found human bloodstains. P.W.13 has spoken about the chemical examination conducted on the internal organs of the deceased. She found neither poison nor alcohol in the same. P.W.14 has spoken about the photographs of the deceased taken at the place of occurrence as directed by P.W.21. P.W.15 has spoken about the postmortem conducted and her final opinion regarding the cause of death. P.W.16 the constable has stated that he handed over the F.I.R. to the learned Magistrate. P.W.17 has spoken about the registration of the case on the complaint of P.W.1. P.W.18 has spoken about the registration of the case on the file of the Jayamkondam police station on 21.07.2010 in respect of the missing of the deceased from 27.06.2010 onwards. P.W.19 has stated that he handed over the dead body of the deceased to the doctor for postmortem. P.W.20 has stated that the accused worked with him for some time. P.W.21 has spoken about the investigation done and the final report filed.
3. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. His defence was a total denial. However, he did not choose to examine anyone nor mark any documents. Having considered all the above, the trial Court convicted him as detailed in the first paragraph of this judgment and that is how the appellant is before this Court with this appeal.
4. When this appeal came up for hearing, the respondent filed a miscellaneous petition in M.P.No.2878 of 2017 requesting the Court to receive additional evidence so as to recall P.W.1 and P.W.11 to identify the material objects. After having afforded sufficient opportunity to the accused, this Court allowed the said petition by an order dated 28.02.2017. Accordingly, P.Ws.1 and 11 were recalled and further examined. P.W.11 identified M.O.43 gold ear stud with thongal which were pledged by the accused. He has further identified the xerox copy of the receipt of such pledging. Through P.W.1 the extra judicial confession was marked, which was omitted to be marked earlier. The accused was thereafter questioned under Section 313 Cr.P.C. in respect of the additional evidence received, the accused denied the same.
5. We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the State and also perused the records carefully.
6. This is a case based on circumstance evidence as there is no eyewitness to the occurrence. The prosecution, in this case relies on the extra judicial confession said to have been made by the accused to P.W.1 on 27.07.2010. The learned counsel for the appellant would submit that the said extra judicial confession cannot be believed at all. According to him, the accused would not have chosen a total stranger to make such voluntary confession. We find no force at all in the said argument. In respect of Ex.P23, the accused has given reasons as to why he had chosen P.W.1 to make such voluntary confession. Further, the extra judicial confession was not disputed at any point of time when he was examined before the Court. Further though P.W.1 has been cross examined at length, nothing has been elicited to doubt his credibility. Thus, we find no reason to reject the evidence of P.W.1. We hold that the extra judicial confession of the accused was made voluntarily to P.W.1.
7. We are conscious of the legal position that if extra judicial confession is shrouded with any doubt, then the Court should look for corroboration from independent source. But in the instant case, we have do not have any doubt regarding Ex.P23 and the oral evidence of P.W.1. Apart from that, the extra judicial confession also draws adequate corroborated from other source.
8. M.O.43 has been identified by the family members of the deceased as that of the deceased. According to the extra judicial confession, the accused removed the same from the dead body of the deceased and then pledged the same at the shop of P.W.11. P.W.11 has also spoken about the same. The receipt for the same has also been marked. He has identified M.O.43 as the one which was pledged by the accused. We find no reason to reject the evidence of P.W.11. The accused has got no explanation as to how he came to possess M.O.43. Thus, the recovery of M.O.43 from P.W.11 in pursuance of the disclosure statement made by the accused and also the recovery of the receipt for the pledging of the jewels from him would all go to give adequate corroboration to the extra judicial confession made by the accused. The medical evidence also corroborates the extra judicial confession.
9. Yet another circumstance available is that the accused was found with the deceased near a tea shop at Needamangalam just before the time of occurrence. From these evidences, we are of the view that the prosecution has clinchingly proved that it was this accused who caused the death of the deceased and removed M.O.43 from the dead body. Having come to the said conclusion, we have to now examine as to what was the offence that has been committed by the accused by his said act. What has transpired between the accused and the deceased could be gathered from P.W.23 the extra judicial confession. The accused has stated that the accused and the deceased had fallen in love with each other for quite sometime and they decided to marry also. Parents of the deceased arranged for the marriage of the deceased and also purchased jewels. When the accused and the deceased met, the accused told her that he was in huge financial constrain. Therefore, she gave her jewels on three occasions, which he pledged with P.W.10. Further the deceased came out of her parental home and went with the accused to various places including Kerala and Coimbatore and finally came down to Kumbakkonam. The idea was to marry. But for the first time at Kumbakkonam the deceased came to know about the community of the accused. Therefore she refused to marry him, this resulted in a quarrel at Kumbakkonam bus stop and the deceased threatened the accused that she will give a police complaint in the event he did not return the jewels. The accused pacified her and took her to Needamangalam, near the place of occurrence on a culvert during night hours both of the sat for a long time and then at the place of occurrence also the deceased again demanded the jewels and she told that she would inform the police and when she tried to flee away from the place of occurrence saying that she was going to the police to make a complaint, the accused suddenly put a cloth around her neck and strangulated her. This would clearly go to prove that the act of the accused would squarely fall within the third limb of Section 300 I.P.C. and the same would fall within the first exception to Section 300 I.P.C. The accused was provoked by the deceased by her words and deeds, which was so strong and grave enough to make the accused to lose his mental faculties, it was in that situation, the accused had killed the deceased. Therefore, the accused is liable to be punished for offence under Section 304(1) I.P.C and also under Section 404 I.P.C.
10. Now, turning to the quantum of punishment, the accused is a young man, he has got no bad antecedents, the act of the accused was not premeditated, he was not armed with any weapon and having regard to the age, family circumstance and all the other mitigating as well as the aggravating circumstances, we are of the view that sentencing him to undergo rigorous imprisonment for ten years and pay a fine of Rs.1,000/- for offence under Section 304(i) I.P.C. would meet the ends of justice.
11. In the result, the criminal appeal is partly allowed in the following terms:
(i) The conviction and sentence imposed on the appellant by the learned District and Sessions Judge, Tiruvarur in S.C.No.38 of 2011 dated 14.08.2012 under Section 302 IPC is set aside and instead, he is convicted under Section 304(i) IPC and he is sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/- and in default to undergo rigorous imprisonment for four weeks.
(ii) The conviction and sentence imposed on the appellant by the trial Court for the offence under Section 404 I.P.C. is hereby confirmed.
(iii) It is further directed that both the sentence shall run concurrently and the period of detention already undergone by the accused shall be given set off under Section 428 Cr.P.C.
(S.N.J.) (A.S.M.J.) 22.03.2017 Speaking Order / Non-speaking Order Index : Yes kk To
1. The District and Sessions Judge, Tiruvarur.
2. The Inspector of Police, Needamangalam Police Station, Tiruvarur District.
3. The Public Prosecutor, Madras High Court.
S.NAGAMUTHU,J.
& ANITA SUMANTH,J.
kk Crl.A.No.494 of 2016 22.03.2017 http://www.judis.nic.in