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SAMAIYAN versus THE STATE REPRESENTED BY

High Court of Madras

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Samaiyan v. The State represented by - CRIMINAL APPEAL NO.364 OF 2004 [2007] RD-TN 642 (21 February 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 21/02/2007

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM

AND

THE HONOURABLE MR.JUSTICE G.RAJASURIA

CRIMINAL APPEAL NO.364 OF 2004

Samaiyan .. Appellant

Vs.

The State represented by

The Inspector of Police,

Kottai Police Station,

Trichirappalli. .. Respondent This criminal appeal is preferred under Section 374 Cr.P.C against the judgment dated 08.10.2003 passed in S.C.No.371 of 2002, on the file of the learned Additional District and Sessions Judge (Fast Track Court No.2), Trichirappalli.

For Appellants : Mr.S.Panneer Selvam

For Respondent : Mr.P.N.Pandidurai,

Additional Public Prosecutor

:JUDGMENT



(The judgment of the Court was made by G.RAJASURIA, J.) Dissatisfied with and aggrieved by the judgment of the learned Additional District and Sessions Judge (Fast Track Court No.2), Trichirappalli, in S.C.No.371 of 2002, dated 08.10.2003, whereby the appellant/accused was convicted under Section 302 I.P.C and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo one year rigorous imprisonment, the appellant/accused preferred this appeal.

2. Briefly, but broadly, niggard of details, the facts which are germane for the disposal of this appeal could be portrayed thus:

(i) Ganesan, P.W.3, a business man having his in stationery business at Nadugujili street, Trichirappalli, resides at No.1, Sanjeevarao Street, Chinnakadai Street of the same town. He engaged the deceased Lakshiammal, a widow of Virudhunagar, as a cook who was staying in the same house and cooking for Ganesan as well as for his employees who were staying in the upstairs of the same house. The accused had been an employee of Ganesan for about a fortnight three months anterior to the date of occurrence. In view of the accused's bad character that he was a sot, he was terminated from service. However, such a sot sought for re-employment for which he intended to seek the assistance of the deceased Lakshiammal. It so happened that on 31.12.2001, at about 02.00 p.m., or 02.30 p.m., while the said cook Lakshmiammal was witnessing the television in the house of Ganesan, the accused went into the house and intimidated her to help him to get re-employment for which she bluntly refused on the ground that the accused was a man of bad character. Thereupon, the accused attacked her fatally with M.O.5, an iron piece of about a foot and a half and decamped with her jewels M.O.1 gold chain and M.O.2 a pair of ear-stud by removing them from her. Subsequently, around 03.30 p.m., P.W.1, Nagavalli, one other servant of that house came into the house and found the door of the house which was unusually kept open during afternoon hours and to her great shock and horror, found the deceased Lakshmiammal lying in a pool of blood. Thereupon, she made hue and cry and the matter was informed to Ganesan P.W.3 who with his employees rushed to the spot from his shop.

(ii) The criminal law was set in motion on the lodging of Ex.P.1 the complaint of P.W.1 with the police. Thereupon, the police registered the case as per Ex.P.15, the printed F.I.R format and the police took up the investigation; the inquest was conducted by the Investigating Officer as revealed by Ex.P.17 and the Doctor P.W.13 conducted the post-mortem and issued Ex.P.13, the report opining that the deceased Lakshmiammal died of Cranio Cerebral and Thoracic cage ante-mortem homicidal injuries. (iii) During the course of the investigation, the police examined the witnesses and got the clues about the presence of the accused near the scene of crime and also the residence of the accused and searched it and found valuable further clues. Thereupon, the Investigating Officer recovered M.O.1 gold chain of the deceased which was pledged by the accused with the help of P.W.8 Rajendran, his friend, with the Co-operative Bank. The police arrested the accused and recovered M.O.2 jewel, from him; under Section 27 of the Indian Evidence Act the recovery of weapon of offence M.O.5, was effected by the Investigating Officer. After completing the investigation, the police laid the police report as per Section 173 Cr.P.C as against the accused for the offence of murder, before the Magistrate concerned who committed the case to the Court of Session which framed the relevant charges as against the accused for which he pleaded not guilty by denying in toto his complexity in the crime. (iv) By way of unfolding the prosecution case, during trial as many as 15 witnesses were marched and 22 exhibits were marked along with M.Os.1 to 10.

(v) The accused during examination under Section 313 Cr.P.C pleaded total denial. Neither oral nor documentary evidence was let in on the side of the accused.

(vi) The trial Court after hearing both sides, ultimately found the accused guilty and recorded the conviction under Section 302 I.P.C., and imposed the sentence as referred to above.

3. Challenging the said conviction and the sentence, the appellant has filed this appeal on the following grounds inter alia thus: (i) The trial Court oblivious of the discrepancies in the prosecution witnesses, simply believed them and convicted the accused. The motive part of the crime was as flimsy as it could be. (ii) There was delay in lodging the F.I.R. (iii) There was no eyewitnesses.

(iv) If at all the accused pledged M.O.1 with the Bank, he would have very well pledged in his own name, but it was not so; and that the entire case of the prosecution is unbelievable. The learned Counsel for the appellant advanced his arguments in concinnity with those grounds.

4. Points for determination are: (i) Whether the motive part of the crime was proved? (ii) Whether there is any delay in lodging the F.I.R and whether the circumstantial evidence as put forth by the prosecution has unerringly pointed towards the guilt of the accused?

(iii) Whether there is any infirmity in the judgment of the trial Court? Point No:(i)

5. Right at the outset, I may proceed to highlight the fact that this is a case wherein there is no eyewitness and only circumstances are relied on, to drive home the guilty of the accused. In such a case, it is always safe to look for the motive for the crime, even though it is a trait proposition of law that once the actual occurrence is proved, the non-proving of the motive part of the crime would not be fatal to the prosecution case.

6. The prosecution by examining P.W.3, Ganesan, clearly elucidated and demonstrated that the accused was working for fifteen days, somewhat three months anterior to the date of occurrence; he was an inebriate and conducted himself unbecoming of an employee under him and thereupon, he terminated him from service. Detailing and delineating the events, P.W.3 in his deposition would expatiate that on the fateful day i.e., on 31.12.2001 at about 01.30 p.m., while he was in his stationery mart, he received a phone call from Lakshmiammal who was in his house, to the effect that the accused in an inebriated mood creating trouble to her and thereupon, Ganesan sent his employee P.W.6 Arumugam, who on his part would corroborate the evidence of P.W.1 and proceeded to highlight the fact that as directed by his employer P.W.3, when he went to the house of P.W.3, there the deceased Lakshmiammal informed him about the fact of the accused having approached her to get re-employment under P.W.3; When P.W.6 came out the house, the accused was standing in front of the house of P.W.3 at that time; on P.W.6 enquiring the accused about his presence there, he told him that he was trying to get re-employment under P.W.3.

7. The fact of the accused having been arrested which he was in possession of M.O.2 jewel which belonged to the deceased Lakshmiammal and also recovery of M.O.1 jewel of the deceased in pursuance of the confession made by the accused, would all show that the accused was in dire need of money that he wanted to get re-employment andf on his failure to get favourable support from the cook Lakshmiammal, he intended to grab the jewels M.O.1 and M.O.2 from her and in that process, he committed the murder of the deceased Lakshmiammal. In view of the availability of such evidence, by no stretch of imagination, it could be stated that the accused had no motive to commit the crime.

8. Accordingly, this point is decided in favour of the prosecution. Point No:(ii)

9. P.W.1's evidence would without any shadow of doubt exemplify the fact that the murder took place on 31.12.2001 just sometime before 03.45 p.m., as P.W.1 as usual went to P.W.3's house to attend her household chores, she found the said Lakshimmal lying in a pool of blood; thereupon on her complaint Ex.P.1, the police registered the case at 04.45 p.m., itself on the same day. Hence, it is totally untenable on the part of the appellant in contending that there was delay in lodging the F.I.R. In fact, the F.I.R reached the Magistrate Court concerned on the same day itself at 08.10 p.m.

10. P.W.2 Kannan who is the brother of P.W.3 would corroborate the evidence of P.W.3 relating to the fact of the accused having worked under P.W.3 in his Stationery Mart for a short period of time anterior to three months from the date of the occurrence and also about the termination of the accused from service.

11. The evidence of P.W.4, the auto driver would buttress and fortify the prosecution case as he would speak about the presence of the accused near the scene of occurrence at or about the time of the occurrence. P.W.4 is having his auto at the auto stand near the scene of occurrence. He would narrate in his deposition that on 31.12.2001, at about 01.00 p.m., when he was in the auto stand, he saw the accused standing near the house of P.W.3 and as such, the evidence of P.W.4 and P.W.6 as set out supra, do hang together to establish the fact that sometime before the occurrence, the accused was very much present near the scene of occurrence. The evidence of P.W.4 and P.W.6 remained untarnished and unassailed despite cross-examination and they had no axe to grind in the matter so as to secure conviction of the accused in the murder case by hook or by crook.

12. P.W.5 Radhakrishnan, the son of the deceased Lakshiammal subsequently who came to know about the murder of his mother, in a cogent and convincing manner identified M.Os.1 and 2 as the jewels of his deceased mother and deposed that at the relevant time, his mother was working in P.W.3's house.

13. As such those identifying witnesses had the opportunity of seeing the deceased wearing those jewels while she was alive and in such a case, the Court has no hesitation in placing reliance on their testimony relating to the identification of the jewels of the deceased.

14. P.W.7 who lives in the same vicinity heard about the occurrence and his evidence is formal in nature.

15. P.W.15, the Investigating Officer with utmost swiftness and steadiness examined the witnesses and thereupon, from the clues he got, he went to the house of the accused and searched the place as per law and seized the P.W.8's photo M.O.8, the paper containing address of one Ashok Kumar M.O.9, one green colour pocket diary M.O.10 in the presence of witnesses as per the search list Ex.P.18. Thereupon, the Investigating Officer approached P.W.8 Rajendran and with his help recovered M.O.1 from the Co-operative Bank.

16. The Investigating Officer also in the course of investigation, prepared observation mahazar Ex.P.7 and rough sketch Ex.P.16 in the presence of the witnesses who are also in support of the prosecution case.

17. At this juncture, it is worthwhile to refer to the evidence of P.W.8 who without mincing words and hushing any evidence, in an out spoken manner, disclosed that on 01.01.2002 at about 09.00 a.m., after the date of occurrence, the accused approached him for financial help for which he expressed his inability to help him; whereupon, the accused sought the help of P.W.8 for selling the jewels M.O.1 for which P.W.8 expressed his inability to do so as he was not accustomed in selling the jewels; however, he volunteered and stated that he would pledge the jewel M.O.1 and get money for the accused and accordingly, on 02.01.2002, the jewel M.O.1 was pledged in the name of P.W.8 with Puliyoor District Co-operative Bank for a sum of Rs.5,000/- and that out of it, P.W.8 took Rs.500/- towards his past dues and paid the remaining sum of Rs.4,500/- to the accused.

18. The learned Counsel for the appellant would advance the argument to the effect that had really the accused wanted to pledge the jewels, he would have pledged it in his own name. Such an argument is neither here nor there, for the reason that strangers to the Bank would not be able to pledge so easily the jewels and raise money and hence, the accused sought the help of P.W.8 and accordingly, P.W.8 pledged the jewels in his name.

19. It is obvious that the person who pledges the jewels should declare the he is the owner of it, otherwise the pledge would not be accepted by the Bank. Hence, in this factual matrix, it is amply clear that simply because P.W.8 pledged the jewel, the accused cannot get himself disencumbered of his criminal liability and try to wriggle out the accusation as against him in this case. P.W.8 withstood the cross-examination and he had no axe to grind in the matter so as to rope the accused in this criminal case.

20. Ex.P.2, the pledge receipt issued by the said Bank would clearly prove that on 02.01.2002 itself, the jewel M.O.1 belonging to the deceased Lakshiammal was pledged. It is therefore clear that it was the accused who committed the murder of the deceased Lakshmiammal. In this connection, the illustration (i) to Section 8 of the Indian Evidence Act, could be reproduced for ready reference:

"(i)'A', is accused of a crime.

The facts that after the commission of the alleged crime, lie absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant."

Illustration (a) to Section 114 would run thus:

"The Court may presume-

(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he accounts for his possession;"

21. As such a cumulative reading of both those illustrations would clearly enure to the benefit of the prosecution to drive home the guilt of the accused. From the evidence of P.W.8 Rajendran and P.W.11 Mullai, the Branch Manager of the said Bank, it is clear that soon after the crime, the accused was in possession of the jewel M.O.1 which belonged to the deceased and that safely it could be held that the accused was the perpetrator of the crime.

22. P.W.15, the Investigating Officer would narrate that on 24.01.2002, he arrested the accused at about 01.00 p.m., and in pursuance of the admissible portion of the confession of the accused, Ex.P.10, he recovered M.O.2 a pair of ear-studs which belonged to the deceased Lakshmiammal under the cover of mahazar Ex.P.6 in the presence of the witnesses. The Investigating Officer also recovered M.O.5, the blood stained weapon of offence i.e, the iron piece of about a foot and a half, under the cover of mahazar Ex.P.11.

23. Ex.P.22, the Serologist report would reveal that M.O.5, the weapon of offence had stains of human blood. The prosecution has also established its case by adducing medical evidence, through P.W.13 the Doctor who conducted the post-mortem examination on the dead body of the deceased. Ex.P.13 the post- mortem certificate issued by P.W.13 would reveal that the deceased sustained as many as nine injuries which ultimately resulted in her death. P.W.13 also would confirm that those injuries found on the deceased could have been caused with the help of M.O.5.

24. The deposition of P.W.9 Ashok Kumar would evince the fact that on 31.12.2001 so to say, on the date of occurrence at about 08.30 p.m., while he was in Puliyoor, the accused approached him and made an extra-judicial confession that he struck down one old lady and brought the jewels. P.W.9 would also corroborate P.W.8 Rajendran by narrating that before the police approached as aforesaid, he informed P.W.8 about the crime committed by the accused. As such, between the evidence of P.W.8 and P.W.9, there is cogency and inter- connection which cannot be discarded. P.W.9 was cross-examined as though, he was attempted to be implicated in this case by the police and in order to save his own skin, he danced to the tune of the police by giving evidence as against the accused. For all those assumed suggestions, there is no basis at all.

25. The Investigating Officer in his deposition clearly narrated as to how he located the witness P.W.9 Ashok Kumar on seeing his address in the paper seized from the house of the accused. As such, in this case, the police has done good investigation in highlighting all the relevant circumstances pointing towards the guilt of the accused step by step. It is a trait proposition of law that in a case based on the circumstantial evidence, no hypothesis except the one which points unerringly towards the guilt of the accused should be acceptable by virtue of the evidence by the trial Court. In this connection, the decision of the Honourable Apex Court in State of U.P v. Ravindra Prakash Mittal reported in AIR 1992 SUPREME COURT 2045 could fruitfully be referred to. An excerpt from it, would run thus:

"20. ... the essential ingredients to prove guilt of an accused person by circumstantial evidence are:

(1) The circumstances from which the conclusion is drawn should be fully proved;

(2) the circumstances should be conclusive in nature. (3) all the facts so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; (4) the circumstances should, to a moral certainty, exclude the possibility of guilt of any person other than the accused."

26. In this case, the discussions supra would highlight that the chain of circumstantial evidence are cogent and convincing without any missing link. Accordingly, this point is also decided in favour of the prosecution. Point No:(iii)

27. Accordingly, this Court finds that the trial Court has correctly found the accused guilty. In view of the ratiocination adhered to in analysing the evidence and scrutinising the judgment of the trial Court, we could see no infirmity in the judgment of the trial Court and accordingly, this point is also decided in favour of the prosecution.

28. In the result, the criminal appeal is dismissed, confirming the conviction recorded and the sentence imposed by the learned Additional District and Sessions Judge (Fast Track Court No.2), Trichirappalli, in S.C.No.371 of 2002, dated 08.10.2003 and the appellant/accused shall undergo the sentence. To

1. The Additional District and Sessions Judge

(Fast Track Court No.2),

Trichirappalli.

2. The Inspector of Police,

Kottai Police Station,

Trichirappalli.

3. The Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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