THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE MR.JUSTICE N.AUTHINATHAN Criminal Appeal No.407 of 2013 Velu @ Velusamy (A2) .. Appellant - Vs -
State rep by Inspector of Police, Kodumudi Police Station, Erode District.
(Cr.No.384 of 2008) .. Respondent Prayer:- Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment passed by the learned Principal District and Sessions Judge, Erode in S.C.No.207 of 2008 dated 24.07.2009.
For Appellant : Mr.L.Mahendran Legal Aid Counsel 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 second accused in S.C.No.207 of 2008 on the file of the learned Principal District and Sessions Judge, Erode. One Mr.Nagarajan is the first accused in this case. They stood charged for offence under Section 302 r/w Section 34 I.P.C., Section 379 I.P.C. and Section 201 r/w Section 34 I.P.C. By judgment dated 24.07.2009, the trial Court convicted them under Section 302 r/w Section 34 I.P.C. and Section 379 I.P.C. The trial Court sentenced them to undergo imprisonment for life and pay a fine of Rs.5,000/- each in default to undergo rigorous imprisonment for six months for offence under Section 302 r/w Section 34 I.P.C. and to undergo rigorous imprisonment for three years for offence under Section 379 I.P.C. The trial Court acquitted them from the charge under Section 201 r/w Section 34 I.P.C. The sentence has been ordered to run concurrently. Challenging the said conviction and sentence, the second accused alone is before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
2.1. The deceased in this case was one Mrs.Malayammal @ Selvam. P.W.1 is her husband. The first accused used to visit the house of P.W.1 frequently in a friendly manner. During such occasions, the first accused had noticed that the deceased was wearing gold jewels. It is the further case of the prosecution that the first accused requested the second accused to help him to steal the jewels.
2.2. In pursuance of the said common intention, it is alleged that on 22.10.2008, around 12.00 noon, when the deceased was in her banana grove at Madaikkattu thottam in Salaipudur village, the accused 1 and 2 went there. The first accused who was having a cotton rope, gave the same to the second accused and the second accused, put the rope around the neck of the deceased from behind. The first accused held the deceased and the second accused strangulated her. Due to suffocation, the deceased died. Thereafter, the accused 1 and 2 removed the 5 ½ soverign gold thali chain with mangalyasutra and two gold balls, one pair of ear studs with white stones, 2 soverign of one gold bangles. The wroth of these gold jewels is around Rs.75,000/-. Thereafter, they removed the dead body from that place and thrown the same in Kaligarayan channel with a view to erase the evidence. The occurrence was not witnessed by anyone.
2.3. P.W.1, the husband of the deceased who went to Erode to visit his ailing sister in the hospital at 11.00 a.m. on 22.10.2008 returned home around 04.00 p.m. When he went to Madaikattu thottam at Saliaipudur, the deceased who was to be there was not seen. He went in search of his wife to the nearby places. When he was so searching for the deceased, around 05.00 p.m. near a bus stop in the same village, the first accused came there. P.W.1 enquired the first accused about the deceased. The first accused told him that he saw the deceased alive around 12.45 p.m. and thereafter he went to Karur. Then he also joined P.W.1 in search of the deceased. At last, P.W.1 found the dead body of the deceased in the channel. He called the first accused to help him to lift the body of the deceased. Accordingly, P.W.1 and the first accused lifted the body of the deceased from the channel. P.W.1 noticed that the gold chain with thali and thali balls and gold bangle worn on the right hand of the deceased were missing. A pair of gold studs made of gold with white stones were also found missing. He also noticed that there was strangulation injury around her neck indicating that she has been strangulated by a rope. He cried for help. The people from that locality rushed to the place of occurrence. All of them took the dead body of the deceased to her house. P.W.1 leaving the dead body at his house, went to Kodumudi police station and made a complaint under Ex.P1 at 07.00 p.m. on 22.10.2008. Ex.P12 is the F.I.R.
2.4. P.W.14 the then Inspector of Police, Kodumudi Police Station took up the case for investigation. He went to the place of occurrence at 08.30 p.m. on the same day and prepared an observation mahazar and a rough sketch in the presence of witnesses. He conducted inquest on the body of the deceased and forwarded the same for postmortem.
2.5. P.W.10, Dr.Dhamayanthi conducted autopsy on the body of the deceased on 23.10.2008 at 08.00 a.m. She found the following injuries:
“External injuries: (1) A well, defined greenish black colour mark 0.7 cm encircling whole of the neck-more prominent infront of the neck 1.5 cm below the mandible, above the hyoid bone and 1” below the occipital prominence on back.
(2) Both right and left ear lobule were torn and bleeding present.
(3) A lacerated wound, measuring 4cm x 3 cm exposing the tendern over the left wrist joint and over the base of the thumb.
(4) Multiple abrasions present over the wrist joint and just above the wrist joint left measuring 2x1cm to 3cmx1cm.
(5) Contusion with abrasion over the left arm just above the elbow joint measuring 10cmx5cm.
(6) Laceration below the left elbow joint over the forearm measuring 5x4 cm.
(7) Laceration 3cmx2cm over the left side cheek measuring 3cmx2cm just below the left eye.
(8) Contusion with abrasion 3cmx0.5cm over the upper eye lid.
(9) Contusion over the left mandible 5x4cm.
(10) Contusion over the lower lip 3cmx1cm.
(11) Linear abrasion 3cmx0.5cm over the left axilla over the 6th intercostal space on mid auxiliary line.
(12) Laceration 4x4cm over the middle of the right arm.
(13) An abrasion just above the right elbow 1cmx0.5cm.
(14) An abrasion 2cmx5cm over the right mid forearm.
(15) 1.5cmx1cm abrasion over the left knee.
(16) Contusion with black colour skin change over the left breast above the nipple 15x10cm. External genitalia normal.
On D/D Head: No fracture scalp bone or base of the skull. Membrane over the brain tissue normal. Brain congested. Dural sinus contains dark coloured blood (liquid).
Neck: The tissues beneath the mark are contused. All the muscles of the neck in front, sides & back. The carotid artery and veins are distended contains dark colour liquid blood. The tissues around the hyoid bone is contained? No fracture hyoid bone.
Thorax: No rib bone fracture. Heart contains dark colour liquid blood about 100 ml. Lungs-both side congested.
Abdomen: Stomach contains partly digested food particle. Liver, both side kidneys, spleen are congested. Intestine distended with gas. Uterus atrophyed. Bladder contains 100 ml of urine. All internal organs measuring within normal limits.”
Ex.P10 is the postmortem certificate. She gave opinion that the injuries found around the neck of the deceased could have been caused by strangulation around the neck with a rope like M.O.8. She has further opined that the death of the deceased was due to suffocation caused due to strangulation.
2.6. P.W.14 during the course of investigation, recovered the clothes from the body of the deceased and the remaining jewels and collected the postmortem certificate. On 24.10.2008, at 10.15 a.m. he arrested the first accused in the presence of P.W.5 and another witness. On such arrest, he gave a voluntary confession, in which, he disclosed the place where he had hidden the rope and the gold jewels. In pursuance of the said disclosure statement, the first accused took the police and the witnesses to a place near the place of occurrence and produced M.O.8 rope. P.W.14 recovered the same under a mahazar. In his disclosure statement he told that he had given the gold thali chain to P.W.6. Accordingly, he took the police and the witnesses to the house of P.W.6 and identified him. P.W.6 in turn returned the gold thali chain weighing 40.250 gms (M.O.3).
P.W.14 recovered the same under a mahazar. In his disclosure statement he has further stated that he had disposed of the gold thali with two golden balls (M.O.4) and two golden talisman (M.O.5) in the shop of P.W.7. Accordingly he took the police and witnesses to the shop of P.W.7, from where the above M.Os.4 and 5 were recovered.
2.7. On the same day at 03.30 p.m. on being identified by the first accused, P.W.14 arrested the second accused. On such arrest, he made a voluntary confession. In pursuance of the same, he took the police and the witness to his house and produced a pair of gold ear studs with stones (M.O.6 series) and a gold bangle (M.O.1 series). P.W.14 recovered the same under a mahazar.
2.8. On returning to the police station, he forwarded the accused to Court for judicial remand and handed over the material objects also to the Court. P.W.14 examined few more witnesses and on completing the investigation, he laid chargesheet against the accused on 28.10.2008.
2.9. 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 15 witnesses were examined, 19 documents and 11 material objects were marked.
2.10. Out of the said witnesses, P.W.1 the husband of the deceased has stated that when he returned home on 22.10.2008 around 05.00 p.m. he found his wife lying dead in a channel. He has further stated that M.Os.1, 3, 4, 5 and 6 were all found missing on the body of the deceased. He has identified these properties as that of his wife. He has further spoken about the complaint made to the police. P.W.2 is a tenant residing at the house of P.W.1. He has stated that on 22.10.2008, P.W.1 had gone to Erode at 11.00 a.m. and around 04.00 p.m. when he returned, he complained to P.W.2 that his wife viz., the deceased was not seen. Then, P.W.1 went in search of the deceased and around 05.00 p.m. he cried from the channel and therefore P.W.2 and others rushed to the place of occurrence. From the channel, P.W.1 lifted the body of the deceased and brought the same to his house.
2.11. P.W.3 has spoken about the preparation of the observation mahazar and the rough sketch and the recovery of material objects from the place of occurrence. P.W.4 is a neighbour and land owner of the deceased. According to him, around 12.30 p.m. on 22.10.2008, when he went to his field, A1 and another person were found coming out of the banana grove of P.W.1. When P.W.4 enquired the first accused, he told that he came there to collect plantain flower. Thereafter, they went away. He has not identified the second accused.
2.12. P.W.5 has spoken about the arrest of the accused 1 and 2, their confession statement and consequential recovery of the material objects. P.W.6 has stated that on 22.10.2008, the first accused came to him and handed over a gold chain with a request to him to keep it for few days. Therefore, according to him, he received the gold chain (M.O.3) and kept it. He has further stated that on 24.10.2008, along with the first accused, police came and recovered the same.
2.13. P.W.7 is a resident of Chettipalayam village. He was running a jewelry shop. According to him, on 22.10.2008, the first accused came to him along with the second accused and wanted to sell a thali chain with gold thali. According to him, since he had no money, he refused to purchase the same. But the first accused requested him to purchase the gold jewels, as according to him, he was in dire need of money as the grandmother of the second accused had died. Therefore, he received these two items on pledging for a sum of Rs.4,500/-.
2.14. P.W.8 has stated that he helped the police to recover the rope in pursuance of the confession statement made by the accused.
P.W.9 has stated that during the relevant time, he was running a grocery shop. On 18.10.2008, according to him, the second accused came to his shop and purchased M.O.8 rope.
2.15. P.W.10 has spoken about the postmortem conducted and her final opinion regarding the cause of death. P.W.11 has spoken about the photographs taken at the place of occurrence. P.W.12 a police constable has stated that he handed over the dead body of the deceased to the doctor for postmortem and after postmortem was over, he collected the personal belongings of the deceased and handed over the same to the investigating officer. P.W.13 the then Sub Inspector of Police has spoken about the registration of the case on the complaint made by P.W.1. P.W.14 the Inspector of Police has spoken about the investigation done and the final report filed.
P.W.15 is a resident of Naluvalpalayam. He has stated that on 22.10.2008, at around 12.00 noon he found these two accused following the deceased into the grove.
3. When the above incriminating materials were put to the accused, they denied the same as false. However they did not choose to examine anyone nor mark any documents. Their defence was a total denial. Having considered all the above the trial Court convicted them as detailed in the first paragraph of the judgment and that is how the appellant / second accused alone has come up before this Court with this appeal. (We are informed that the first accused has not filed any appeal so far)
4. 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.
5. This is a case based on circumstantial evidence. The first and foremost circumstance is that the deceased was lastly seen alive by P.W.1 at 11.00 a.m. on 22.10.2008 and at 05.00 p.m. her dead body was found lying in the channel. There were injuries found on her body. The doctor who conducted autopsy had found a rope mark around her neck and according to the doctor, the death of the deceased was due to suffocation caused due to ligature strangulation. The doctor had further opined that the said injury in the neck could have been caused by using a rope like M.O.8. We find no reason to reject the evidence of the doctor. From this evidence, the prosecution has clearly established that the deceased had been done to death by somebody between 11.00 a.m and 05.00 p.m. on 22.10.2008. The prosecution has thus established that it was a homicide.
6. P.W.1 has further stated that the deceased use to wear M.Os.1 to 7. Lastly when she was seen alive, she was wearing M.Os.1 to 7. But on the dead body of the deceased, P.W.1 found that M.Os.1, 3, 4, 5 and 6 were missing. Thus, the prosecution has established that the theft of these gold jewels and the death of the deceased had been caused in one and the same transaction. In other words, it is presumable that the person / persons who caused the death of the deceased had removed M.Os.1 and 3 to 6 also.
7. Now the question is who are the perpetrators of the crime.
8. In order to prove the same, the prosecution again relies on few more circumstances. P.W.4 in his evidence has stated that on 22.10.2008, around 12.30 p.m., the first accused along with yet another person was found coming out of the banana grove of P.W.1 and when he enquired, the first accused told that he had gone there to collect plantain flower but P.W.4 had not identified the second accused as the person who accompanied the first accused. Thus, P.W.4 does not in any manner implicate the appellant / second accused.
9. According to P.W.5 the first accused was arrested on 24.10.2008 at 10.45 a.m. and on such arrest, the first accused gave a voluntary confession, out of the said confession, M.O.8 rope and M.Os.3 to 5 were recovered. According to the disclosure statement, the first accused told that he had handed over M.O.3 to P.W.6.
P.W.6 has stated that on 22.10.2008, the first accused came and handed over the said thali chain with a request to him to keep the same safely. We do not find any reason to reject the evidence of P.Ws.5, 6 and 14 in this regard. From this evidence, it has been clearly established that the first accused was found in possession of Material objects soon after the commission of the theft.
10. The first accused in his disclosure statement has stated that he pledged M.O.4. to P.W.7. P.W.7 has stated that on 22.10.2008, the first accused came to him along with the second accused and he wanted to sell M.O.4. When he expressed that he had no sufficient money, A1 told him that the grandmother of A2 died and A2 was in dire need of money. Therefore, he gave Rs.4,500/- to the first accused by keeping M.O.4. On the disclosure statement made by the first accused, M.O.4 was recovered. From this evidence, the prosecution has again established that M.O.4 (stolen property) was found in the possession of the first accused as well as the second accused soon after the commission of theft.
11. On being identified by the first accused, P.W.14 arrested the second accused. On such arrest, he gave a voluntary confession, in which, he disclosed that he had hidden a pair of gold ear studs (M.O.6) and a gold bangle (M.O.1) in his house. Accordingly, he produced M.Os.1 and 6. The first accused in his confession had disclosed that he had pledged the mangalyam. Out of the disclosure statement made by the first accused, from P.W.7, M.Os.4 and 5 were recovered. These two accused had not explained as to how they came to possess these stolen properties. In the absence of any such explanation, it is to be presumed as per Section 114 of the Evidence Act that the person who had stolen away these properties from the deceased and since the death and commission of theft of these jewels had taken place in one and the same occurrence, it should be further presumed that it was these two accused who had killed the deceased also.
12. The evidence of P.W.15 also needs appreciation. P.W.15 has stated that on 22.10.2008, at around 12.00 noon he found these two accused following the deceased into the grove. But P.W.15 has admitted during cross examination that he did not inform the same either to P.W.1 or the police on 24.10.2008. Therefore, there is no explanation as to why he kept mum for such a long time. This creates doubt in the evidence of P.W.15 and therefore we reject the evidence of P.W.15.
13. From the above discussion, we come to the conclusion that the lower Court was right in convicting the appellant / second accused for offence under Section 302 r/w 34 I.P.C. and Section 379 I.P.C. The presumption raised under Section 114 of the Evidence Act as stated above remains unrebutted. The said unrebutted presumption would conclusively go to prove that it was this appellant / second accused and the first accused had committed murder and removed the gold jewels.
14. Now turning to the quantum of punishment, the trial Court has imposed only a minimum punishment which does not require any interference at the hands of this Court.
15. In the result, we do not find any merit at all in this appeal, the appeal fails and the same is accordingly dismissed. The conviction and sentence imposed on the appellant / second accused by the learned Principal District and Sessions Judge, Erode in S.C.No.207 of 2008, dated 24.07.2009, is therefore confirmed.
Index : Yes kk (S.N.J.) (N.A.N.J.) 02.01.2017
Note: The High Court Legal Services Authority, shall pay necessary fees to the learned counsel for the appellant.
S.NAGAMUTHU,J.
& N.AUTHINATHAN,J.
To
1. The Principal District and Sessions Judge, Erode.
2. The Inspector of Police, Kodumudi Police Station, Erode District.
3. The Public Prosecutor, Madras High Court.
kk
Crl.A.No.407 of 2013
02.01.2017 http://www.judis.nic.in