Madras High Court
Kumar vs The State Represented By on 11 August, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.08.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
AND
THE HONOURABLE MR.JUSTICE V.S.RAVI
CRIMINAL APPEAL (MD).No. 52 of 2013
Kumar
S/o.Late Muthusamy
29 Kollampattarai Street
Kuzhithalai
Karur District. : Appellant
Vs.
The State represented by
Inspector of Police
Mayanur Police Station
Karur District.
in Crime No.401 of 2010 : Respondent
PRAYER
Appeal is filed under Section 374 of the Code of Criminal Procedure
against the judgment passed by the Sessions Judge, Karur, in S.C.No.44 of
2011 dated 31.01.2012.
!For Appellants : Mr.A.Robinson
^For Respondent : Mr.C.Ramesh
Additional Public Prosecutor
:JUDGMENT
(Judgment of the Court was delivered by S.NAGAMUTHU, J.) The appellant is the sole accused in S.C.No.44 of 2011 on the file of the learned Sessions Judge, Karur. He stood charged for offences under Sections 302, 376 and 392 IPC. By judgment dated 31.01.2012, the trial Court acquitted the appellant of the charges under Sections 392 and 376 IPC, however, the trial Court convicted him only under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.500/-, in default, to undergo rigorous imprisonment for one month. Challenging the said conviction and sentence, the appellant is before this Court with this appeal.
2. The case of the prosecution in brief is as follows:
The deceased in this case was a woman by name Mallika. She was hardly aged about 39 years. Everyday, in the morning, she used to go to the agricultural field for collecting grass for her cattle. On 04.08.2010, as usual the deceased had left her house at 6.30 a.m., for the field to collect grass. It was her usual practice to return home by around 7.30 a.m. after collecting grass. But on 04.08.2010, she did not return home, even after 7.30 a.m. Her husband Mr.Krishnamoorthy (P.W.2) was not at his home on the said date, as he had gone to a local shandy. By about 12.30 p.m., he returned home and learnt that his wife was missing. Mr.Krishnamoorthy (P.W.2) along with P.W.1 had gone in search of the deceased to the usual places, where the deceased used to collect grass as well as used to do agricultural work. She was not found anywhere at the field. But in the place, where she was collecting grass, they found a small amount of grass left after cutting. P.Ws.1 and 2 further searched. At that time, they found the dead body of the deceased by the side of a ridge. She was half naked. There were also injuries on her body. From the nature of the injuries, P.Ws.1 and 2 believed that she had been raped and murdered. At the time when she left her house, the deceased was wearing a thali, ear stud, nose screws and ring, all made of gold. They were found missing on the body of the deceased.
2.1. Immediately, P.Ws.1 and 2 went to the police station, where P.W.1 made a complaint under Ex.P1. P.W.20, who was the Sub Inspector of Police, attached to Mayanur Police Station on the basis of Ex.P1, registered a case in Crime No.401 of 2010 under Section 302 IPC. Ex.P28 is the FIR. He forwarded both these documents to Court and handed over the case for investigation to P.W.22.
2.2. Taking up the case for investigation, P.W.22, proceeded to the place of occurrence immediately and prepared an observation mahazar in the presence of P.W.5 and another witness. Then he conducted inquest on the body of the deceased and prepared a report, during which, he examined many witnesses. Ex.P33 is the inquest report. Then, he forwarded the body for postmortem. P.W.11 ? Dr.Kowsalya attached to the Government Hospital at Karur, conducted autopsy on the body of the deceased on 05.08.2010 at 11.15 a.m. She found the following injuries:
(1) Abrasion 1 x 1 cm over right end of lower lip. (2) contusion involving chin & upper neck with abrasion lt side 5 x 2 cm, right side 2 x 2 cm on either side of midline c/s:Subcutaneous hemorrhage present over the neck.
(3) Contusion upper and lateral aspect of right breast ? approximately semi circular in shape (4) Small multiple abrasion rt elbow (5) Multiple abrasions lateral aspect of right upper thigh varying size at shape (6) Small abrasions inner aspect of right lower thigh varying size and shape.
O/D. Skull intact. Brain congested. Hyoid preserved. Lungs preserved. Heart contains 50 ml of clotted blood.
She gave opinion that there were no sign of any rape or sexual intercourse on the body of the deceased. She further opined that the death was due to manual strangulation. P.W.11 forwarded the smear taken from the private parts of the deceased to the forensic lab for examination.
2.3. P.W.21 ? Dr.K.S.Sivasankari has spoken about the examination conducted. According to her, there were human bloodstains on the inner garments of the deceased and there was no bloodstains on the jacket. She further opined that there was no spermatozoa or semen found on the body of the deceased.
2.4. P.W.22 continued the investigation and arrested the accused on 09.08.2010 at Kulithalai Railway Station Banana Thoppu in the presence of P.W.9 and another witness. On such arrest, he gave a voluntary confession. In that confession, he disclosed that he had pledged the jewels with P.Ws.14 to 16. In pursuance of the same, he took P.W.22 and P.W.9 to P.W.14. On 09.08.2010, at about 7.30 p.m., in pursuant to the said disclosure statement, the accused identified P.W.14. From P.W.14, a gold thali measuring 1.750 milligrams (M.O.1) was seized. The same has been identified by P.Ws.1 and 2 as the one, which was worn by the deceased lastly. Then at 9.30 p.m., he identified P.W.16, from whom, gold coins four numbers (M.O.3), gold balls two numbers(M.O.4), gold ear ring one pair (M.O.2) were all recovered. According to P.W.16, the above jewels were pledged to him only by P.W.15. P.W.15 told that the above jewels were purchased by him from the accused and in turn, pledged by him. On completing the investigation, P.W.22 laid charge sheet against the accused.
2.5. In order to prove the charges, on the side of the prosecution, as many as 22 witnesses were examined, 44 documents were exhibited, and 15 material objects were marked. Out of the said witnesses, P.Ws.1 and 2 have spoken about the fact that the deceased was lastly seen alive at their house at 6.30 a.m. on the date of occurrence. P.W.3 has also spoken about the same. P.Ws.1 to 3 have identified the jewels recovered at the instance of the disclosure statement made by the accused as the one worn by the deceased lastly. P.W.4 had stated that on the crucial date, the accused was found near the place, where the deceased was collecting grass. Thus, according to her, the accused was found in the company of the deceased lastly. P.W.5 has spoken about the observation mahazar prepared by the police and the recoveries made from the place of occurrence, wings of parrots, beedies and a match box were all recovered. P.W.6 is the another witness, who has also stated that the accused was found roaming around the place, where the deceased was lastly collecting grass. P.W.7 has stated that he used to see the accused catching parrots in that area. P.W.8 has stated that on 05.08.2010, he came to the shop and tonsured his head. When P.W.8 asked as to why, he was tonsuring, he told him that it was for Karur Mariamman Deity. P.W.9 is the Village Administrative Officer, who is the star witness for the prosecution, in whose presence, according to him, the accused was arrested on 09.08.2010 at 3.45 p.m. at Kulithalai Railway Station and he has further stated about the recoveries of the material objects, namely, pottu thali M.O.1, Thanga kasu, (Gold Coins), M.O.2, Gold balls M.O.3 and gold ear stud M.O.4. P.W.10 is a Magistrate, who recorded the statement of the witnesses under Section 164 Cr.P.C. He has spoken about the same. P.W.11 ? Dr.Kowsalya has spoken about the postmortem conducted by her and her final opinion regarding her cause of death. P.W.12 is the Assistant Director in the Forensic Sciences Lab. According to her, in the viscera of the deceased, organo phosphorus poison was noticed.
2.6. P.W.13 is the Head Clerk of the Court, who has spoken about the forwarding of the material objects for chemical analysis. P.W.14 has spoken about the recovery of the material objects and the disclosure statement made by the accused. P.W.15 has stated that he purchased the jewels from the accused and pledged the same with P.W.16. P.W.16 has also spoken about the same. P.W.17 is the photographer, who took photograph of the dead body. P.W.18 is the Constable, who handed over the material objects at the Forensic Lab for examination. P.W.19 is the Head Constable, who carried the FIR to the Court from the police station. P.W.20 has spoken about the registration of the case. P.W.21 has spoken about the chemical analysis done and P.W.22 about the investigation.
2.7. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. On his side, he examined two witnesses by name, Jothikrishnan, Village Administrative Officer and Ganapathy, who has stated that there were lot of shops situated near the shop of P.W.16. On his side, he has not exhibited any documentary evidence. Having considered all the above, the trial Court convicted the accused as stated in the first paragraph of the judgment. That is how, he is before this Court with this appeal.
3. We have considered the learned counsel for the appellant, the learned Additional Public Prosecutor for the respondent State and we have also perused the records carefully.
4. The learned counsel for the appellant would submit that the entire case of the prosecution is based only on the evidence of P.W.9 and P.W.22, who have spoken about the alleged arrest of the accused, the disclosure statement made and the consequential recoveries of the material objects from P.Ws.14 and 16. The learned counsel for the appellant would submit that their evidences cannot be believed for so many reasons. P.W.16 had stated that the police came to his shop even at around 3.00 p.m. on 09.08.2010 and the accused was found at 4.00 p.m. in the custody of the police on the same day, whereas, according to the case of the prosecution, the arrest of the accused was made on 09.08.2010 at 3.45 p.m. Thus, according to the learned counsel for the appellant, the arrest of the accused and the recovery of the material objects cannot be true. In this regard, the learned counsel relies on the judgment of the Hon'ble Supreme Court in Madhu vs. State of Kerala, reported in 2012 Crl.L.J. 1230, wherein, the Hon'ble Supreme Court has held that if it is on facts found that the accused was in the custody of the police long before the subsequent arrest of the accused, the consequential discoveries of material objects on the basis of the alleged confession cannot be believed. Relying on the same, in this case also, since P.W.16 had stated that the accused was found in the custody of the police long before the so called arrest, recovery, disclosure of material objects cannot be believed.
5. The learned counsel would submit that absolutely, there is no evidence that the accused committed rape on the deceased and caused the injury. He would further submit that P.Ws.4 and 6 have stated that the accused was found somewhere near the place of occurrence, but there was no identification parade for them. Therefore, their evidence cannot be believed. The learned counsel would, however, submit that P.W.21 had stated that the viscera of the deceased, organo phosphorus poison was found. This is against the case of the prosecution, the learned counsel submitted. Thus, according to the learned counsel, the prosecution has failed to prove the case beyond reasonable doubts.
6. But the learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, there was no motive between the deceased and the accused. Even in the complaint, there was no allegation made against the accused. The accused was arrested on some information and only after his disclosure statement, his involvement in the crime came to the file of the police. Therefore, according to the learned Additional Public Prosecutor, no motive could be attributed against the police also. The learned Additional Public Prosecutor would further submit that P.W.9 is an independent witness in whose presence the accused was arrested on 09.08.2010 at 3.45 p.m. On his confession, the discoveries of these material objects M.Os.1 to 4 were made from P.Ws.14 and 16. Absolutely, there is no reason, according to the learned Additional Public Prosecutor, to reject the evidence of the prosecution on this score. The learned Additional Public Prosecutor would further submit that so far as the evidence of P.W.21 is concerned, it is true that he has stated that there was organo phosphorus poison found in the viscera, but from the records, it could be seen that the Doctors, who forwarded the visceral organs in connection with the crime No.401/2010, visceral organs related to some other case was sent by mistake. In this regard, the learned Additional Public Prosecutor has produced a letter written by the Doctor concerned. (not marked as exhibit in evidence). The learned Additional Public Prosecutor would submit that from the evidence of the above witness, it has been clearly established that the accused was the one, who committed the murder of the deceased.
7. We have considered the above submissions.
8. Admittedly, this is a case based on circumstantial evidence. It is settled law in order to prove the guilt of the accused, in a case based on circumstantial evidence, the circumstances pleaded by the prosecution should be proved beyond reasonable doubts and all the proved circumstances should form a complete chain to unerringly point to the guilt of the accused and there should be no other hypothesis inconsistent with the guilt of the accused. With these legal position, now, we have to analyse the evidences let in.
9. In this case, there is no controversy that the deceased left the house at 6.30 a.m. for the purpose of collecting grass. This fact has been spoken to by P.Ws.1 to 3. According to P.Ws.4 and 6, the deceased was found collecting grass at the place of occurrence. Thus, the deceased was lastly seen by P.Ws.4 and 6 at the place of occurrence alive at about the time of alleged occurrence.
10. It is in the evidence of P.Ws.4 and 6 that the accused was found somewhere near the place of occurrence catching parrots. This has been spoken to by the other witnesses also. Though there was no test identification parade to enable these witnesses to identify the accused, on that score, we are not prepared to reject the evidence of P.Ws.4 and 6, because there is no denial of the identification of this accused, while these two witnesses were cross examined. Thus, it is crystal clear that the prosecution has proved that the accused was found somewhere near the place of occurrence at about the time of occurrence.
11. The next circumstance is that the deceased was found dead by around 12.30 p.m. The dead body was noticed by P.Ws.1 and 2 at the place of occurrence. Thus, it has been established that the death would have occurred somewhere between 7.30 a.m. to 12.30 p.m. on the date of occurrence. From the evidence of the Doctor, it has been clearly established that the death was homicidal. Thus, there can be no difficulty in coming to the conclusion that it was a homicide.
12. The next circumstance is the arrest of the accused. P.W.9 - the Village Administrative Officer, who has got no axe to grind against the accused, has categorically stated that the accused was arrested on 09.08.2010 at 3.45 p.m. near Kulithalai Railway Station. On such arrest, according to the said witness and that of the evidence of P.W.22, he gave a voluntary confession. In that, he had disclosed that he had pledged the jewels to P.Ws.14 and 16. In pursuance of the same, he had taken the police and P.W.9 to the shop of P.W.14. From the shop of P.W.14, M.O.1 the gold thali was recovered. This thali has been identified by P.Ws.1 and 2 as that of the deceased. Thereafter, he took the police to P.W.15. P.W.15 has stated that he purchased M.Os.2 to 4 from the accused and pledged the same with P.W.16. Thus, these M.Os.2 to 4 were recovered from P.W.14. Absolutely, we find that there is no reason to reject the evidences of P.Ws.14 to 16, P.Ws.9 and 22 in this regard.
13. But the learned counsel for the appellant would submit that according to the evidence of P.W.16, the accused was found in the custody of the police, even before he was arrested. In this regard, the learned counsel for the appellant has taken us through the cross examination of P.W.16. During the cross examination of P.W.16, it is stated that on 09.08.2010, at 03.00 p.m. itself, the police came to him and informed about the arrest of the accused etc. From this, the learned counsel would submit that the arrest at 3.45 p.m. at the Kulithalai Railway Station cannot be true. In our considered view, the said argument does not persuade us for the simple reason that in a village situation, one cannot expect an illiterate a villager to meticulously state about the exact time of the happenings. There is no lot of difference between approximate time between 3.00 and 3.45 p.m.. Therefore, this argument is rejected.
14. From the above discoveries of the material objects, which were lastly worn by the deceased, it is crystal clear that the accused had removed the jewels from the deceased and pledged the same. The presumption under Section 114 of the Evidence Act as illustrated under illustration '(a)' squarely applies to the facts of the present case. We are inclined to raise a presumption against the accused that he had only stolen these goods from the deceased. He has got no explanation to offer. Since the murder and robbery had taken place simultaneously in the course of the same transaction, the presumption is that the person, who committed robbery, is the person, who committed the murder. In this case, since the jewels of the deceased were found in the custody of the accused, soon after the commission of the crime, the natural presumption is that he was the one, who killed the deceased. The said presumption is further fortified by the evidences of P.Ws.4 and 6, who had seen the deceased in the field collecting grass and at that time, they had seen this accused roaming around near the place of occurrence.
15. Now, turning to the evidence of P.W.21, of course, she has stated that in the visceral organs, there were organo phosphorus poison. But in the Case Diary, we are able to find that a letter was written by the Duty Medical Officer, Karur, to the Assistant Director, Regional Forensic Sciences Lab, Trichy, wherein, as early as on 23.11.2010, he has stated that while affixing the labels on the sample bottles containing visceral organs, instead of mentioning the number as P.M.No.275/10, they affixed the labels with the number as P.M.No.274/10 and thus, the visceral organs relating to crime No.770/2010 had been sent. That was a case of suicide. But, this document has not been marked in evidence and so we cannot give evidentiary value to for this document, as the same requires proof and so we are inclined to reject the same. In the light of the overwhelming evidence available to prove that this accused has caused the death of the deceased the evidence of P.W.21 deserves to be rejected. Since the accused has been acquitted under section 392 IPC, for robbery by the trial Court, since there has been no appeal against the same, we are not able to impose any punishment on that score. We are impelled to sustain the conviction of the accused for the offence under Section 302 IPC alone.
16. In the result, the criminal appeal fails and the same is accordingly, dismissed. The conviction and sentence imposed by the trial Court is hereby confirmed. Consequently connected Miscellaneous petition is also dismissed.
To
1.The Sessions Judge, Karur,
2.The Inspector of Police Mayanur Police Station Karur District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. .