Madras High Court
Duraisamy vs The Inspector Of Police on 18 August, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 18.08.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
and
THE HONOURABLE MR.JUSTICE V.S.RAVI
Crl.A(MD)No.65 of 2013
Duraisamy .. Appellant/
Sole Accused
Vs.
The Inspector of Police,
Thathiangarpet Police Station,
Trichy District.
(Crime No.47 of 2007). .. Respondent/
Complainant
PRAYER: Appeal is filed under Section 374(2) of the Code of Criminal
Procedure against the Judgment and conviction passed by the learned Principal
Sessions Judge, Tiruchirappalli Division, Tiruchirappalli, in S.C.No.16 of
2009, dated 14.09.2009.
!For Appellant : Mr.J.Sivaram
^For Respondent : Mr.C.Ramesh,
Addl. Public Prosecutor.
:JUDGMENT
(Judgment of the Court was made by S.NAGAMUTHU, J) The appellant is the sole accused in S.C.No.16 of 2009, on the file of the learned Principal Sessions Judge, Tiruchirappalli Division, Tiruchirappalli. He stood charged for the offences under Sections 302 and 404 I.P.C. By Judgment, dated 14.09.2009, the Trial Court convicted him under both the charges and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months, for the offence under Section 302 I.P.C. and to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for three months, for the offence under Section 404 I.P.C. The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellant is before this Court, with this Criminal Appeal.
2.The case of the prosecution, in brief, is as follows:-
The deceased in this case was one Mrs.Valarmathi. The appellant is her husband. After some time of the marriage, the accused had grievance that the deceased was not properly respecting him. According to the case of the prosecution, because of the said hate that slowly the accused developed, he decided to do away the deceased.
3.It is alleged that on 02.06.2007, the accused approached P.W.13 and wanted him to lend his T.V.S.50 motor cycle bearing Registration No.TN-45-E- 4922. The accused told P.W.13 that for the purpose of going to Mangalam Aravayee Temple, he was in need of the said vehicle. He also told that he was going to take his wife also with him. Believing these words, P.W.13 lent the said vehicle to him.
4.It is further alleged that thereafter, the accused, took the deceased in the motor cycle, under the pretext of taking her to the temple. But, in order to accomplish his plan, the accused had taken a knife with him. When they were going towards the temple, near a tank, on the east of Krishnapuram Road, the accused suddenly stabbed the deceased on her back, left side of the hip and other parts of the body and caused her death. It is further alleged that thereafter the accused took away the jewels owned by the deceased. He took the body to the land belonging to one Mr.Vivekanandan on the north of Thulaiyanatham Village and put the same into a small pit. Thereafter, he escaped from the scene of occurrence without disclosing about the same to anybody.
5.The dead body was later on found by the villagers on 08.06.2007 in a highly decomposed condition. P.W.1 is the father of the deceased. On hearing about the fact that a dead body of a woman was lying, P.W.1 along with the others rushed to the said place. She found the few belongings of the deceased lying near the dead body. The body was in a highly decomposed condition. From the wearing apparels found near the body, P.W.1 inferred that it was his daughter. While, he was at the place of occurrence, on some information, the police also came to the spot. Then he went to the Police Station and made a complaint to P.W.22. On receipt of the complaint (Ex.P.1), P.W.22 registered a case in Crime No.47 of 2007 under Section 174(3) Cr.P.C. Ex.P.23 is the First Information Report. Then, he forwarded the complaint and the First Information Report to the Revenue Divisional Officer for necessary action. He handed over the Case Diary to the Inspector of Police for investigation.
6.P.W.20, the then Revenue Divisional Officer, Musiri, conducted inquest on the body of the deceased at 10.15 a.m. on 09.06.2007. P.W.20, submitted a Report under Ex.P.13. In his presence, on the request made by the Inspector of Police, a team of two doctors consisting of P.W.10 and P.W.11, arrived at the scene of occurrence and conducted autopsy on the body of the deceased. Ex.P.5 is the Postmortem Certificate. They preserved the hyoid bone for examination. The expert, who conducted the hyoid bone examination, gave report that there was no fracture. The viscera report also revealed that there was no poison. Then, P.W.10 and P.W.11 gave final opinion that the deceased would have died due to strangulation.
7.P.W.10 and P.W.11 had preserved the skull for the purpose of superimposition. Taking up the case for investigation, P.W.24, examined P.Ws.1 to 5 and recorded their statements. He prepared an Observation Mahazer in the presence of P.W.7 and another witness. Then, he collected the photograph of the deceased and forwarded the same to the Court. At his request, the skull collected from the place of occurrence and the photographs of the deceased were sent for superimposition.
8.P.W.25, the Assistant Director of Forensic Science Department, Chennai, conducted superimposition test and gave a report that the skull tallied with the photographs of the deceased. Ex.P.30 is his Report.
9.P.W.27 took up the case for investigation following P.W.24. On 16.07.2008, according to him, the Sub Inspector of Police, Mr.Balaji, informed him that he had information that the accused was employed in Sribhavan Hotel in Chennai. Therefore, P.W.27 rushed to Chennai and arrested the accused at 10.00 a.m. on 17.07.2008. On such arrest, he gave a voluntary confession, in which he disclosed that he had hidden the motor cycle in front of the hotel. Accordingly, he took the police and witnesses to the place, where the TVS motor cycle bearing Registration No.TN-45-E-4922, was kept and the same was recovered. Then, the accused produced a gold ring weighing half sovereign, which he was wearing. That was also recovered. Then, in the same statement, he disclosed that he had pledged the rest of the jewels in a shop. In pursuance of the same, he took the police and witnesses to Chrompet and identified the pawn broker, by name, Mr.Naresh, P.W.4. P.W.4, Mr.Naresh, was present, from whom, he recovered the material objects in the presence of witnesses under a mahazer. Then, he identified Mr.Bharathkumar, P.W.5, who was running a pawn broker shop under the name and style of Devichand Jain at Kandigai Bazaar, Mela Kottaiyur, Chennai. P.W.27 recovered a bangle from him. As per the disclosure statement, the accused then took the police to Thuraiyur Town and identified one Kamaraj, Son of Sadaiyan Asari, P.W.18. From whom, a gold bangle was recovered. On returning to the Police Station, P.W.27 forwarded the accused to Court for judicial remand and also handed over the material objects to the Court. On completing the investigation, he laid charge sheet against the accused.
10.Based on the above materials, the Trial Court framed charges. The accused denied the same.
11.In order to prove the case, on the side of the prosecution, as many as, 27 witnesses were examined and 34 documents were exhibited, besides 18 Material Objects.
12.Out of the said witnesses, P.W.1, is the father of the deceased, who has spoken about the fact that there was no love lost between the deceased and accused. He has also stated about the missing of the deceased and the complaint preferred by him to the police. P.W.2 is the father of the accused. He has turned hostile. He has not supported the case of the prosecution in any manner. P.W.3 has also turned hostile. P.W.4, Mr.Naresh is the owner of the pawn broker shop at Chrompet. He has stated that in the month of June/ July, 2007, the accused pledged the jewels. On 17.07.2008, the shop was identified by the accused and then he handed over the said jewels to the police, which were duly recovered in connection with this case. [This witness has not identified the jewels so handed over by him to the police]. P.W.5 is running two paun broker shops in Vandalur, Chennai under the name and style of Bharathkumar Jain Shop and Davidson Jain Shop. According to him, the accused came to the shop once and pledged a gold bangle in his shop in the name of one Chinnasamy, Son of Nallusamy of Rathnamangalam Village. Later, on 17.07.2008, the police came with the accused and identified him. He returned the said bangle to the police, which was recovered under a mahazer. [This witness has also not identified the bangle, which was allegedly pledged by the accused]. P.W.6 is a resident of Pillimalai Kenthala in Ooty. The deceased was a distant relative to him. According to him, the accused and deceased left Pillimalai Kenthala for Thulaiyanatham to the house of the father of the accused. But, the deceased did not return even after the school reopened after vacation. On 08.06.2007, therefore, he went to the house of the father of the accused. He was informed that the deceased and the accused, who had gone for temple, had not returned. When they came out of the house, one old lady came to him and told that there was a dead body in a pit in the said village. Thereafter, he went to the said place along with P.W.1 and they found the dead body was that of the deceased. The gold jewels worn by her were missing. P.W.7 has spoken about the Observation Mahazer and the recovery of material objects from the place of occurrence. M.O.1, knife,was found there. The same was recovered. Bloodstained earth and sample were were also recovered. A pair of chappel, M.O.5 series, were also recovered from the place of occurrence under Ex.P.3, mahazer. This witness has spoken about the same. P.W.8 is the cousin of the deceased. According to him, the deceased, who was to return to Ooty on 04.06.2007 as the school reopened on the day, did not return. The Headmaster of the school called him and informed about the same. Then, he came to know that the deceased was found dead in the pit at Thulaiyanatham Village. P.W.9 is the brother of the deceased. He has also stated about the missing of the deceased. P.W.10, Dr, Venkatesh and P.W.11, Dr.Boopathi have spoken about the postmortem conducted by them and their final opinion regarding the cause of death. P.W.12 is the mother-in-law of the deceased and the mother of the accused. She has turned hostile and she has not supported the case of the prosecution in any manner.
13.P.W.13 is an important witness for the prosecution. He is the owner of T.V.S.50 Motor Cycle bearing Registration No.TN-45-E-4922 (M.O.5). According to him, on 02.06.2007, the accused came to his house and wanted him to lend the motor cycle to go to a temple. At that time, the deceased was also by the side of him. Believing the words, according to him, he gave the motor cycle to him. The accused took the deceased with him in the said motor cycle to go to the temple. But thereafter, the accused did not return the motor cycle. He came to know that the motor cycle was seized by the police later. P.W.14 is the poosari of Aravayee Temple at Mangalam Village. According to him, on 02.06.2007, in the evening, the accused and the deceased came to the temple and worshipped the deity. He has further stated that he gave them 'pirasatham'. Thereafter, they were sitting in the temple for some time and at 06.30 p.m. they left the temple. This witness has not stated anything about the jewels worn by the deceased and therefore he has been treated as hostile by the prosecution. P.W.15 has stated that on 02.06.2007, when he was taking tea in Thulaiyantham Village, he found the accused taking the deceased in the motor cycle. But, he has not identified the motor cycle. He has also not stated anything about the time, when he saw the deceased. P.W.16 has stated that the accused once worked under him. His evidence is not so relevant for the prosecution. P.W.17 is the Head Clerk of the Court, who has spoken about the fact that he forwarded the material objects for chemical examination.
14.P.W.18 is a resident of Kamatchi Amman Temple Street in Thuraiyur. Once, the accused had done electrical works in his house. Thus, the accused was well known to him. He has stated that two years prior to his evidence, the accused came to him and pledged a gold bangle for Rs.3,000/-. After one year of the said pledging, the jewel was recovered by the police in connection with this case. [This witness has also not identified the said bangle].
15.P.W.19 is a resident of Pullampalayam Village. He knew the accused. On 17.05.2008, alongwith P.W.21, a friend of him, he had gone to Chennai. Incidentally, he and P.W.21 had gone to a hotel by name Sribhavan Hotel at Adayar. It was around 05.00 p.m. When they were taking food, the accused served food for them as a server, that is, employee of the hotel. Both P.W.19 and P.W.21 came out of the hotel, without making any indication to the accused that they knew him. Immediately, they informed the respondent police that the accused was working in the said hotel.
16.P.W.20 is the Revenue Divisional Officer, who has spoken about the inquest conducted by him at 10.45 a.m. on 09.06.2007. He has further stated that the postmortem was conducted in his presence. Ex.P.17 is the Report prepared by him. P.W.22 is the Sub Inspector of Police, Thathiangarpet Police Station. He has stated that he registered the present case in Crime No.47 of 2007 on 08.06.2007 at about 11.00 p.m. He has further stated that he forwarded the documents to the Court and he handed over the Case Diary to the Inspector of Police for investigation. P.W.23 is the Police Constable, who has stated that he carried the dead body for postmortem. P.W.24 was the then Deputy Superintendent of Police, who investigated the present case initially. P.W.25 has spoken about the superimposition test conducted by him on the material objects. He has stated that the photograph of the deceased tallied with the skull on superimposition. P.W.26 and P.W.27 have spoken about the investigation done.
17.When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However, he did not choose to examine any witness on his side nor to mark any document.
18.Having considered all the above materials, the Trial Court convicted the appellant, as detailed in the first paragraph of this Judgment, and sentenced him accordingly. That is how, the appellant is before this Court with this Criminal Appeal.
19.We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the State and we have also perused the records carefully.
20.The learned counsel for the appellant would submit that the prosecution in this case has failed to prove the circumstances projected by it beyond reasonable doubts. He would further submit that absolutely there is no evidence to prove that it was this accused, who caused the death of his wife. He would further submit that P.W.1 has stated during cross-examination that M.O.7 appears to be a new jewel, which would indicate that the recovery of material objects has been fabricated. He would further submit that the earliest information furnished by the Village Administrative Officer (P.W.7) had been suppressed. Similarly, the recovery of motor cycle (M.O.5) also cannot be believed. P.W.13 had not laid any complaint to the police for the missing of his motor cycle itself would indicate that the story projected by the prosecution is only an invention to support the case. The learned counsel for the appellant would submit that the very fact that sanitary napkin was found on the body of the deceased would go to show that on the crucial date of occurrence, she would not have gone to the temple at all, as the Hindu women do not go to temple during menstrual cycle. The learned counsel would submit that the cause of death also has not been proved by the prosecution. At any rate, according to the learned counsel, the prosecution has failed to prove the case beyond reasonable doubts.
21.But, the learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, there is clear evidence that the deceased was in the company of the accused lastly at or about at the time of occurrence. The learned Additional Public Prosecutor would further submit that thereafter the accused was found missing and he was hiding in Chennai along with the motor cycle. The learned Additional Public Prosecutor would further submit that accidently his presence in Chennai, was noticed by two witnesses and thereafter only he was arrested. On such arrest of the accused only motor cycle and the material objects were recovered, for this, the accused has got no explanation. Thus, according to the learned Additional Public Prosecutor, the prosecution has clinchingly proved its case against the accused. Therefore,, according to him, this appeal deserves only to be dismissed.
22.We have considered the above submissions.
23.The motive for the occurrence has been spoken by P.W.1. According to him, the accused had a grievance that the deceased was not properly respecting him. Thus, there was no love lost between the accused and the deceased. On the crucial date, namely, on 02.06.2007, according to the case of the prosecution, the accused took the deceased in the motor cycle bearing Registration No.TN-45-E-4922 to the temple and while returning from the temple, he caused the death of the deceased. To prove these facts, the prosecution mainly relies on the evidence of P.W.13. P.W.13 is the owner of the said motor cycle. According to him, on 02.06.2007, the accused came to his house and wanted him to lend the motor cycle to go to a temple. At that time, he found the deceased in his company. Though, it is contended by the learned counsel for the appellant that the evidence of P.W.13 cannot be believed as he did not make any complaint about the missing of the motor cycle, we are not persuaded by the said argument. It may be because, the accused was a friend and therefore he would not have made any complaint to the police. But the fact remains that the motor cycle was recovered at Chennai on being identified by the accused. Thus, we have every reason to believe P.W.13 that the motor cycle was given by him to the accused, on 02.06.2007.
24.Next comes, the evidence of P.W.14. He is the poojari of Aravayee Temple at Mangalam Village. He has stated that on 02.06.2007, in the evening, the accused and the deceased came to the temple, they worshipped the deity, stayed there for some time and at 06.30 p.m., they together left the temple. Thus, on 02.06.2007, the deceased was in the company of the accused. P.W.14 has no axe to grind against the accused. Therefore, there is no reason to reject the evidence of P.W.14.
25.Then comes, the evidence of P.W.15. He has stated that on 02.06.2007, when he was taking tea at Thulaiyanatham Village, he found the accused and the deceased going together in the motor cycle. From these evidences, the prosecution, in our considered view, has clinchingly proved that the deceased was lastly in the company of the accused and she was found alive at 06.30 p.m. on 02.06.2007.
26.Thereafter, the dead body of the deceased was found on the next day i.e., on 08.06.2007. The doctor, who conducted autopsy, had given opinion that the deceased would have died of asphyxia due to strangulation. Thus, the death of the deceased is a homicide. The said fact has also been duly proved by the prosecution. The body was highly decomposed and therefore, the skull was preserved and the same was subjected to superimposition. As per the evidence of P.W.25, the superimposition proved that the skull tallied with the photograph of the deceased. Apart from that, from the dress materials found on the body, the family members of the deceased have also identified her. Thus, the identity of the dead body has also been clearly established.
27.After, 08.06.2007, there was no clue with the police in respect of the accused. On 16.07.2008, P.W.19 and P.W.21 had gone to Chennai casually. When they had gone to Sribhavan Hotel in Chennai, according to them, the accused was found there, as a server. Immediately, on 16.07.2008 itself, they informed the same to the police. The police, thereafter, came to Chennai and arrested the accused on 17.07.2008. On such arrest, he gave a voluntary confession in the presence of P.W.21. In the said confession, he disclosed that he had kept the motor cycle in front of Sribhavan Hotel. At 12.15 p.m. on 17.07.2008, the said motor cycle was identified by the accused and the same was recovered. Apart from that, a gold ring weighing half sovereign was also recovered. That has been identified by P.W.1 to be that of his daughter. Then, he disclosed that he had pledged the thali chain, gold balls, Nanal and another chain weighing two sovereigns, gold ear studs and jimikki with mattal. All the jewels, namely, M.O.7 to M.O.10 were recovered from the pawn broker. This has been spoken to by P.W.4, the pawn broker himself. Then, out of the disclosure statement, a bangle (M.O.11) was recovered from P.W.5. On the same day, from one Kamaraj, M.O.12, another bangle was recovered. All these jewels have been identified to be that of the deceased. We do not find any reason to reject these evidences. From these evidences, the prosecution has clearly proved that the stolen articles belonging to the deceased were all in the possession of the accused.
28.Now, as per Section 114 of the Indian Evidence Act, 1872, this Court is bound to presume that it was this accused, who removed the personal belongings of the deceased and committed the murder of the deceased. This conclusion is irresistible.
29.Next, comes the conduct of the accused. The accused has no where stated that he was not aware of the death of his wife for about more than a month. He was hiding in Chennai. Had it been true that he was innocent, there would have been no need for him to escape from the Village and to stay in Chennai, hiding himself. This conduct also gives rise to a presumption of guilt of the accused as per Section 114 of the Indian Evidence Act, 1872.
30.Above all, the motor cycle in question, which was lastly seen, when the accused had gone to the temple, for worship, along with his wife, was all along in his custody in Chennai. He has not explained as to why he had taken the motor cycle to Chennai, without returning the same to its owner.
31.The argument of the learned counsel for the appellant that since sanitary napkin was found on the dead body, she would not have gone to the temple, does not persuade us. Mere wearing of sanitary napkin, would not indicate that she was in menstrual cycle on the day. The doctor who conducted autopsy on the body of the deceased did not notice anything on the vagina indicating that she was in menstrual cycle on the day. Therefore, this argument is rejected.
32.Apart from that, we do not find any material in favour of the accused to disbelieve the case of the prosecution. We hold that the proved circumstances unerringly point to the guilt of the accused and there is no other hypothesis which will be inconsistent with the guilt of the accused. Thus, we hold that the prosecution has proved the case beyond all reasonable doubts and there is no merit in this appeal.
33.Now, turning to the quantum of punishment, the Trial Court has imposed only a minimum punishment. Therefore, it does not require any interference at the hands of this Court.
34.In the result, the appeal fails and the same is accordingly dismissed and the conviction and sentence imposed on the appellant, by the learned Principal Sessions Judge, Tiruchirappalli Division, Tiruchirappalli, in S.C.No.16 of 2009, dated 14.09.2009, is hereby confirmed.
To
1.The Principal Sessions Judge, Tiruchirappalli.
2.The Inspector of Police, Thathiangarpet Police Station, Trichy District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai..