Madras High Court
Veeramani Alias Veerarasu Alias ... vs State Rep.By on 9 April, 2014
Author: A.Selvam
Bench: A.Selvam, V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09.04.2014 CORAM THE HONOURABLE MR. JUSTICE A.SELVAM and THE HONOURABLE MR. JUSTICE V.S.RAVI Crl.A.(MD)No.21 of 2014 and MP(MD)No.1 of 2014 Veeramani alias Veerarasu alias Veeramuthu .. Appellant/Sole Accused Vs. State rep.by The Inspector of Police, Orathanadu Police Station, Crime No.499 of 2003 Thanjavur District, Thanjavur. .. Respondent/Complainant Criminal appeal filed under Section 374 of Cr.P.C. against the conviction and sentence dated 18.04.2007 passed in Sessions Case No.56 of 2006 by the Additional District and Sessions Court/Fast Track Court No.II, Pattukottai. !For Appellant ... Mr.E.Somasundaram ^For Respondent ... Mr.C.Ramesh Addl.Public Prosecutor :JUDGMENT
(Judgment of the Court was delivered by A.SELVAM, J.) The convictions and sentences passed by the trial Court in a double murder case are being challenged in the present Criminal Appeal.
2. The nubble of the case of the prosecution is that the accused by name Veeramani @ Veerarasu @ Veeramuthu has served as an agricultural labourer for some time in the leasehold field of one Sambanthamoorthy (PW6). On 20.10.2003 at about 08.00 pm, the accused has approached the said Sambanthamoorthy and demanded money for spending the same towards delivery of his wife. The said Sambanthamoorthy has refused to concede the demand made by the accused. One of the deceased by name Pappathi has also served as an agricultural labourer under the said Sambanthamoorthy and at that time the accused has developed illicit intimacy with her and handed over some amount to her. After refusal of the said Sambanthamoorthy, the accused has approached the said Pappathi and demanded money and she expressed that she is not having money and with an intention to rob her jewels, the accused has decided to take her to an isolated place under the guise of irrigating field as directed by the said Sambanthamoorthy. After reaching a particular place, the accused has had cornal copulation with the said Pappathi and at that time, the son of the said Pappathi by name Boomiraj aged 1+ years has started to cry and with an intention to murder the said Pappathi, the accused has attacked on her head by using a spade and also bitten left chest and due to overtacts alleged to have been committed by him, the said Pappathi has passed away and subsequently, the accused has also attacked the said Boomiraj by using the very same spade and he also passed away. After murdering both the deceased, the accused has stealthily removed the jewels of Pappathi.
3. After occurrence, on 23.10.2003, the Village Menial by name Rajendran (PW2) has intimated the factum of lying dead bodies in the field of Sambanthamoorthy to the Village Administrative Officer by name Venkatachalam (PW1). Both PWs.1 and 2 have come to the place of occurrence and ascertained presence of dead bodies and subsequently PW1 has given a complaint to the Sub Inspector of Police by name Selvamani (PW12) and the same has been registered in Crime No.499 of 2003. The complaint given by PW1 has been marked as Ex.P1.
4. On receipt of Ex.P1, the Investigating Officers namely Sivalingam (PW13) and Chandrasekaran (PW14) have conducted investigation and after completing the same, laid a final report on the file of the Judicial Magistrate Court, Orathanadu and the same has been taken on file in PRC No.9 of 2006.
5. The Judicial Magistrate, Orathanadu has furnished copies of all relevant documents to the accused and after considering that the offences alleged to have been committed by the accused are triable by Sessions Court, has committed the case to the Court of Sessions and the same has been taken on file in Sessions Case No.56 of 2006 on the file of the Additional District and Sessions Court (Fast Track Court No.II), Pattukottai.
6. The trial court after considering the available materials on record has framed first charge against the accused under Section 302 (2 counts) of the Indian Penal Code and second charge against him under Section 379 of the Indian Penal Code the same have been read over and explained to him. The accused has denied the charges and claimed to be tried.
7. On the side of the prosecution, PWs.1 to 14 have been examined and Exs.P1 to P21 and M.Os.1 to 8 have been marked.
8. When the accused has been questioned under Section 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against him, he denied his complicity in the crime. No oral and documentary evidence have been adduced on the side of the accused.
9. The trial Court after evaluating the available evidence on record has found the accused guilty under Section 302 (2 counts) of the Indian Penal Code and imposed double life sentence. The accused has also been found guilty under Section 379 of the Indian Penal Code and sentenced to undergo three years rigorous imprisonment. Against the convictions and sentences passed by the trial Court, the present Criminal Appeal has been preferred at the instance of the accused as appellant.
10. The learned counsel appearing for the appellant/accused has assorted the following limbs of arguments so as to disbelieve the version of the prosecution and also to set aside the convictions and sentences passed by the trial Court.
(i) The case of the prosecution is that PW6 Sambanthamoorthy has taken the lands of one Punniamoorthy on lease. But the said Punniyamoorthy has not been examined on the side of the prosecution.
(ii) The entire case of the prosecution is based upon the confession statements alleged to have been given by the accused on 14.11.2003 and admitted portions of the same have been marked as Ex.P2 and P3. But PW1 who is having connection with the alleged confession has given evidence to the effect that the accused has given the same on 14.10.2003 and the trial Court has failed to look into the same.
(iii) The case of the prosecution is that before occurrence, both PWs.4 and 5 viz., Durai and Maruthamuthu have seen both the accused and deceased Pappathi and in fact, both of them are not reliable witnesses.
(iv) In pursuance of confession alleged to have been given by the accused, some material objects have been recovered in the presence of PWs.7, 8 and 10 and the alleged seizure has not been proved on the side of the prosecution.
(v) The doctor who conducted autopsy (PW11) has not given proper evidence as to the cause of death of the deceased Boomiraj.
(vi) The specific evidence given by one of the Investigating Officers viz., PW13 is that on 24.10.2003 the accused has been arrested in connection with Crime No.448 of 2003, Athiramapattinam Police Station by the concerned Inspector of Police viz., Somasundaram and the said Somasundaram has not been examined.
11. In order to dissipate the contentions put forth on the side of the appellant/accused, the learned Additional Public Prosecutor has also equally contended that in the instant case, the prosecution has proved the alleged illicit intimacy of the accused with one of the deceased by name Pappathi. The prosecution has also proved the confession alleged to have been given by the accused coupled with seizure of some material objects. Further, the prosecution has examined some reliable persons who are said to have last seen the deceased as well as accused and in fact the prosecution has proved a perfect chain of circumstances so as to point out guilt of the accused even without a speck of doubt and the trial Court after considering the available evidence on record has rightly invited convictions and sentences against the accused under Section 302 (2 counts) and also under Section 379 of the Indian Penal Code and therefore, the convictions and sentences passed by the trial Court are not liable to be interfered with.
12. The learned counsel appearing for the appellant/accused has befittingly drawn the attention of the Court to the following decisions in respect of settled propositions of law with regard to a case based upon circumstantial evidence.
(a) In (2014) 2 Supreme Court Cases (Cri)677 (Sujit Biswas v. State of Assam), the Hon'ble Apex Court has held that "clear, cogent and unimpeachable evidence produced by prosecution, reiterated, is a must, before accused is condemned as convict. The Hon'ble Apex Court has further observed that duty of Court to ensure that mere conjectures or suspicion do not take place of legal proof."
(b) In 2014 SAR (Criminal) 337 (Vijay Kumar vs. State of Rajasthan), the Hon'ble Apex Court has held that "all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstance must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence."
13. There is no cleavage/divergent opinion with regard to legal position of a case based upon circumstantial evidence. To put it in nutshell, prosecution is bound to adduce a complete, consistent chain of evidence without any brake so as to point out guilt of the accused.
14. On the basis of the settled legal position and also on the basis of the aforesaid legal backdrops, the Court has to analyse as to whether the prosecution has proved the alleged guilt of the accused punishable under Section 302 (2 counts) and also under Section 379 of the Indian Penal Code beyond reasonable doubt.
15. The genesis of the case of the prosecution is that both the accused and deceased Pappathi have served as agricultural labourers in the leasehold field of PW6, Sambanthamoorthy and at that time both of them have had illicit intimacy with each other.
16. For the purpose of proving genesis of the case of the prosecution, prosecution has examined PWs.3, 6 and 9.
17. The husband of the deceased Pappathi viz., Ponnusamy has been examined as PW3 and his specific evidence is that he and his wife have served as agricultural labourers in the field of Sambanthamoorthy and due to despair, he has gone to his native village with his four children and after some time has has come to Mela Uloor and asked the deceased viz., Pappathi to come along with him and she refused. Further he has come to know that both the accused and deceased Pappathi are having illicit intimacy with each other.
18. The employer viz., Sambanthamoorthy (PW6) has given clear evidence to the effect that he has come to know that both the accused and deceased Pappathi are having illicit intimacy.
19. The wife of the accused by name Vaduvammal (PW9) has also given evidence to the effect that her husband has had illicit intimacy with the deceased.
20. From cumulative reading of the evidence given by PWs.3, 6 and 9 it is easily discernible that both the accused and deceased Pappathi have had illicit intimacy with each other.
21. The prosecution has put forth its case on the basis of illicit intimacy, last seen witnesses, confession alleged to have been given by the accused coupled with seizure of some material objects.
22. The last seen witnesses by name Durai (PW4) and Maruthamuthu (PW5) have given clear evidence to the effect that on 20.10.2003 at about 08.30 pm, both of them and one Mariammal while sitting in front of the house of PW4, have seen both the accused as well as deceased Pappathi. The accused has asked the said Pappathi to come along with him for the purpose of irrigating field and the deceased Pappathi has followed the accused by way of taking a spade. The specific evidence of PW4 is that on the same day at about 10.00 pm, the accused has proceeded towards busstand.
23. In fact, this Court has meticulously scrutinised the entire evidence given by PWs.4 and 5, no where it is suggested that both of them are having animosity against the accused. Under the said circumstances, their evidence cannot be disbelieved.
24. It is seen from the records that the accused has been arrested on 24.10.2003 in connection with Crime No.448 of 2003, Athiramapattinam Police Station. Further, it is seen from the records that on 14.11.2003, the accused has been taken to custody in connection with present crime by PW13. The accused has given a voluntary confession statement and the admitted portions of the same have been marked as Exs.P2 and P3. In pursuance of Exs.P2 and P3, some of the vital material objects belonging to the deceased viz., Pappathi have been recovered in the presence of Kalidoss (PW7), Ponnambalam (PW8) and Vasudevan (PW10).
25. It is true that PW7 has become a hostile witness, however he admits his signature in a seizure mahazer. The other witness by name Ponnambalam has given clear evidence to the effect that under Ex.P9 two jewels have been recovered from one Ayyasamy as identified by the accused. Further PW10 has stated in his evidence that the accused has mortgaged a nose screw and received a sum of Rs.170/- and to that effect Ex.P11 has been marked.
26. It is seen from the records that in respect of Ex.P9, receiver of some jewels from the accused by name Ayyasamy has not been examined. But at the same time, in connection with Ex.P9, PW8 Ponnambalam and in connection with Ex.P11, PW10 Vasudevan have given clear evidence. Therefore, it is quite clear that the prosecution has clearly established seizure of some Material objects, especially M.Os.3 to 6 on the basis of confession given by the accused.
27. It is an admitted fact that PW11 viz., Dr.Sivakumar has conducted autopsy on the body of the deceased and he marked postmortem certificate viz., Exs.P12 and P14 and his specific evidence is that death of the deceased would have occurred due to injuries sustained by them.
28. The first and foremost limb of argument advanced on the side of the appellant/accused is that the owner of the land viz., Punniamoorthy has not been examined and therefore, the case of the prosecution cannot be believed in.
29. It is an admitted fact that PW6 Sambanthamoorthy has taken a land from the said Punniamoorthy on lease and only under him, the accused as well as deceased Pappathi have served and his specific evidence is that he has taken the land from the said Punniamoorthy. Since PW6 has given clear evidence to the effect that he has taken the land which belongs to Punniamoorthy, mere non examination of him would not chisel the case of the prosecution.
30. The second contention put forth on the side of the appellant/accused is that as per evidence given by PW1, the entire confession statement alleged to have been given by the accused is false.
31. The said contention has been put forth only on the basis of some mistakes crept in in the evidence of PW1. The specific evidence given by PW13 is that on 24.10.2003 the accused has been arrested in connection with Crime No.448 of 2003, Athiramapattinam Police Station and only on the basis of confession given by the accused, he has been brought under police custody in connection with the present crime on 14.11.2003.
32. The admitted fact is that Exs.P2 and P3 have come into existence on 14.11.2003. The specific evidence given by PW13, Investigating Officer is also to that effect. It is true that PW1, in some portions of his evidence has stated to the effect that the accused has given confession statement on 14.10.2003. It is nothing but a mistake on the part of PW1. Further PW1 has given evidence against Exs.P2 and P3. Therefore, the second contention put forth on the side of the appellant/accused is of no use.
33. The third contention put forth on the side of the appellant/accused is that both PWs.4 and 5 are not reliable witnesses. It is seen from their evidence that they are residing in the locality, wherein the occurrence has taken place. Further PW4 is having a residential house just opposite to pumpset, where the deceased Pappathi has resided. Under the said circumstances, their evidence cannot be discarded. It has already been pointed out that no motive has been suggested against PWs.4 and 5. Since no motive has been suggested against PWs.4 and 5 and since they are the residents of the locality, where occurrence has taken place, their evidence can be believed in. Therefore, the third contention put forth on the side of the appellant/accused is sans merit.
34. The fourth contention put forth on the side of the appellant/accused is that in the instant case both the confession alleged to have been given by the accused coupled with seizure of M.Os.3 to 6 have not at all been proved. It has already been pointed out that by way of examining PWs.8 and 10 and also be way of marking Exs.P9 and P11, the prosecution has unerringly proved the confession given by the accused and also seizure of M.Os.3 to 6. Therefore, the fourth contention put forth on the side of the appellant/accused goes out without merit.
35. The fifth contention put forth on the side of the appellant/accused is that PW11, doctor who conducted autopsy has not given clear evidence to the effect that the injury sustained by one of the deceased viz., Boomiraj is not at all sufficient to cause his death. In fact this Court has perused the entire evidence given by PW11 and his specific evidence is that he found a swelling on the neck of the deceased Boomiraj and since the dead body is in a state of putrefied condition, corresponding internal injuries cannot be found. Therefore, no blemish nor a blot can be created in respect of the evidence given by PW11.
36. The sixth contention put forth on the side of the appellant/accused is that the specific evidence given by PW13 viz., one of the Investigating Officers is that on 24.10.2003 the accused has been arrested in connection with Crime No.448 of 2003, Athiramapattinam Police Station by the concerned Inspector of Police viz., Somasundaram and he recorded a confession statement (Ex.P19) from the accused. But the said Somasundaram has not been examined.
37. It is true that the said Somasundaram has not been examined in the present case, however, the prosecution has adduced plenitude of evidence with regard to circumstances, so as to point out guilt of the accused. Therefore, mere non-examination of the said Somasundaram would not pave the way for disbelieving version of the prosecution.
38. It has already been pointed out that in a case based upon circumstantial evidence, the bounden duty of the prosecution is to adduce cogent/trustworthy and complete chain of evidence so as to point out guilt of the accused and there should not be any missing link.
39. In the instant case, the prosecution has clearly established the alleged illicit intimacy between the accused with deceased Pappathi. The prosecution has further established that prior to occurrence, both the accused and deceased Pappathi have been seen together by way of examining PWs.4 and 5. Further the prosecution has clearly proved the confession alleged to have been given by the accused coupled with seizure of M.Os.3 to 6 by way of examining PWs.8 and 10. Therefore, it is not an exaggeration to say that in the instant cae, the prosecution has adduced cogent/trustworthy and also complete chain of evidence so as to point out guilt of the accused. Further, apart from the circumstances mentioned supra, the prosecution has clearly proved that death of both deceased would have occurred only due to injuries sustained by them by way of examining the doctor who conducted autopsy (PW11).
40. It has already been pointed out in many places that both PWs.4 and 5 have last seen both the accused and deceased Pappathi on the date of occurrence. Further, it has already been decided that since no motive has been suggested against them, their evidence cannot be brushed aside. From the evidence of PWs.4 and 5, the Court can very well come to a conclusion that prior to occurrence, the accused has taken both the deceased along with him under the guise of irrigating lands. At this juncture, it would be condign to look into Section 106 of the Indian Evidence Act, 1872 and the same reads as follows:
"Burden of proving fact especially within knowledge.-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
It means if any fact is especially within the knowledge of a particular person, the entire burden lies upon him to prove the same.
41. In (2000) 8 supreme Court Cases 382 (State of West Bengal v. Mir Mohammad Omar and others) the Hon'ble Apex Court has dealt with the legal position involved as per Section 106 of the said Act. The Hon'ble Apex Court at paragraphs - 37 and 38 has observed as follows:
"37. Section 106 of the Indian Evidence Act, 1872 is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to cases where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.
38. Vivian Bose,J., had observed that Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused...."
42. In (2013) 8 SCC 60 (Babu @ Balasubramaniam and another Vs. State of Tamil Nadu), the Hon'ble Apex Court has held that "incident especially within the knowledge of accused, burden of proof lies upon him, failure to prove, he must be held liable.
43. In the instant case, even at the risk of repetition the Court would like to point out that the prosecution has clearly established that both the accused and deceased Pappathi have been seen together by PWs.4 and 5 and their specific evidence is that under the guise of irrigating land he asked deceased Pappathi to come along with him and after conceding the demand made by the accused, she (Pappathi) followed him. Therefore, it is needless to say that in the instant cae, provision of Section 106 of the Indian Evidence Act, 1872 is squarely applies and the entire burden lies upon the accused to prove as to what happened to both deceased. But absolutely there is no explanation on the part of the accused. Therefore, the accused has failed to discharge his burden. Under the said circumstances, as per dictum given by the Hon'ble Apex Court, the accused must be held liable.
44. The trial Court after analysing both the oral and documentary evidence has rightly found the accused guilty under Section 302(2 counts) and also under Section 379 of the Indian Penal Code. In view of the foregoing enunciation of both the factual and legal aspects, this Court has not found any acceptable force in the contentions put forth on the side of the appellant/accused and altogether, the present Criminal Appeal is liable to be dismissed.
45. In fine, this Criminal Appeal deserves dismissal and accordingly is dismissed. The convictions and sentences passed in Sessions Case No.56 of 2006 by the Additional District and Sessions Court/Fast Track Court No.II, Pattukottai are confirmed. Connected Miscellaneous Petition is also dismissed.
mj To
1.The Additional District and Sessions Court/ Fast Track Court No.II, Pattukottai
2.The The Inspector of Police, Orathanadu Police Station, Thanjavur District Thanjavur.
3.The Addl. Public Prosecutor, Madurai Bench of Madras High Court, Madurai.