Madras High Court
Annathurai And Krishnamurthi @ Mottai ... vs State Through Inspector Of Police, ... on 24 September, 2001
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam, Prabha Sridevan
JUDGMENT M. Karpagavinayagam, J.
1. Annadurai, the first accused and Krishnamurthi @ Mottai Thalai Krishnamurthi, the second accused, have filed these two appeals, challenging the conviction imposed upon them in S.C.82 of 1993, on the file of the learned Sessions Judge, Tanjore. The first accused was convicted for the offence under section 302 I.P.C. and sentenced to undergo life imprisonment. The second accused, was convicted for the offence under section 364 I.P.C. and sentenced to undergo five years rigorous imprisonment and was also convicted under Section 302 IPC read with 109 IPC and sentenced to undergo life imprisonment.
2. The narration of the facts in a nutshell is essential before considering the grounds of these appeals:-
a. The deceased in this case was one Azhagiri, aged about 8 years. PW-1, Ambalaraj is his father and PW-2 Padmavathi is his mother. The house of the first accused Annadurai is situated opposite to the house of PWs 1 and 2.
Three months prior to the date of occurrence, PW-2 Padmavathi went to the terrace of the house of the first accused Annadurai for the purpose of collecting paddy in a gunny bag, which was dried up there. At that time, one Chandrasekaran, brother of the 1st accused Annadurai, came there and offered to help her in taking the paddy in the gunny bag. When she refused to accept his help, he misbehaved with her by catching hold of her hands. PW-2 reprimanded him stating that he should not have behaved with her in that manner since she is his sister like. Then PW-2 came back to her house and informed the incident to PW-1, who came in the evening. Then, PWs 1 and 2 went to the house of the 1st accused and beat his brother Chandrasekaran with broomstick and chappals. At that time,villagers gathered there and they too beat the said Chandrasekaran on knowing about the incident. From then onwards, there was no cordial relationship between the first accused family and the family of PWs 1 and 2.
b. On 29.4.1992, Wednesday, the deceased Azhagiri went to school. At about 12 noon, when PW-1 was doing some repairing work in his cycle, the deceased came to the house from the school after finishing his lunch at the school itself and put back the food plate in the house. Thereafter, the deceased went back to the school for attending afternoon classes. At about 2.45 pm, Krishnamurthi @ Mottai Thalai Krishnamurthi, the second accused, went to the school where the deceased was studying and met PW-3, the school teacher, who was the Master of the III Standard in which the deceased was studying and informed PW-3 that he was sent by the father of the deceased to bring the deceased to him. On the basis of the same, PW-3 sent the deceased with him. At or about 2.45 pm, PW-4, Palaniammal and one Danam saw the deceased going along with the second accused in a cycle. At about 3.45 pm, PW-5, Vasugi came out of her house on hearing the barking of dogs and saw both the accused 1 and 2 going to the southern side in a cycle in a fast manner. At about 4.15 pm, Gayathri, the cousin of the deceased, studying in the same school of the deceased, came back home with the school bag of the deceased. When she was questioned about the whereabouts of the deceased, Gayathri informed about the fact that the deceased was taken by one Mottai Thalaian. Immediately, PW-1 went to the school and enquired PW-3 about his son, who inturn informed that one Mottai Thalaian came and took his son stating that the deceased was wanted by his father, PW-1. Then PW-1 enquired the other villagers. He came to know from PWs 3 and 5 about what had happened earlier. Then PW-5 informed PW-1 that the first accused must have done some thing to the deceased and therefore, requested PW-1 to see the pumpset belonging to the first accused. PW-1 and others came to the pumpset and found the same locked.
c. Thereafter, they were searching for the deceased in the village and the houses of the relatives. No clue was available to them. At about 8.00 am, on the next day, PW-1 and others went to the pumpset. On suspicion, they broke open the pumpset door and found the deceased lying in a pool of blood with several injuries all over his body.
d. Then, PW-1 preferred a complaint, to PW-13, the Village Administrative Officer. PW-13, recorded the same and went to Sub Inspector of Police, PW-16 and handed over the complaint Ex.P-1. PW-16, Sub Inspector of Police, registered a case and sent the First Information Report Ex.P-14 to the higher officials and to the Court. PW-17, the Inspector of Police took up investigation. He came to the scene of occurrence at about 12.45 pm on 30.4.1992 and prepared the observation magazar, Ex.P-8 and conducted the inquest between 1.30 pm and 3.30 pm. Ex.P.16 is the inquest report. Thereafter, he arranged for sending the body to postmortem. He recovered sample earth, the blood stained chappals and blood stained earth from the scene, under Ex.P-9.
e. On receipt of information from PW-17, PW-11 Doctor conducted postmortem and found the following injuries:- 1.Transverse lacerated wound 8x2 cms bone deep over the parietal region of scalp on the left side. 2.A vertical lacerated wound 5x1 cms bone deep over the upper part of occipital region of scalp on the midline. 3.Oblique lacerated wound 4x1 cms bone deep over the left side of the occipital region of scalp, the upper end 1cm away from the midline. 4.Lacerated wound 3x1 cms bone deep over the parietal region of scalp on the right side. 5.Transverse lacerated wound 3x1 cms bone deep over the lower part of temporal region of scalp on the right side behind the ear. 6.Vertical lacerated wound 3x1 cms bone deep over the right side of forehead ending in the hair margin. 7.Vertical lacerated wound 2x 1/2 cms bone deep over the right side of the forehead 1cm below and medial to wound No.6. 8.A circular laceration of .5cm diameter over the right temple. 9.A circular lacerated wound 2 1/2 cms bone deep over the left temple. 10.An oblique lacerated wound over the right side of mandible in the middle 2x 1/2 cms bone deep. 11.Both the hands were found blood white and soddened washer woman's hand. 12.Abrasion 3x2 cms over the back of right elbow. 13.Abrasion 2x1 cms over the inner aspect of left knee. 14.Oblique laceration 3x.25 cms muscle deep over the back of upper 1/3 of left fore arm with underlying contusion over an area of 4x3 cms. 15.Abrasion 2x2 cms over the back of lower 1/3 of left upper arm. 16.Abrasion 3x2 cms over the left side of chest in the mid axillary line 12 cms below the left arm pit. 17.Obliquely placed abrasion 3x1 cms over the back of chest on the midline in its upper part, 10cms below the external occipital protuberance. 18.Abrasion 3x2 cms over the back of abdomen on the middle line at L1 level. 19.Abrasion 8x3cms over the right hypochondrial region of abdomen internal injuries. 20.Contusion involving the whole of right temporal region both frontal regions, whole of left temporal region and whole of occipital regionof scalp.
21.Conmmunitted fracture involving the whole of right temporal bone and respondent. Half of occipital bone of vault of skull, a horizontal fissured fracture was found starting from the front end of the above mentioned communitted fracture and encircling the vault involving the frontal bones to a length of 12 cm. 22.Laceration involving the base of right frontal lobe and the right temporal pole of brain. 23.Subdural and subarachnoid haemorrhage over the entire surface of frontal, temporal and parietal lobes of brain on the right side. 24.Communitted fracture involving the right middle cranial foss of base of skull. 25.The right temporal and ibular joint was found disconnected.
He issued postmortem certificate Ex.P-6, in which he opined that the deceased would have died of injuries found on the body.
f. PW-17, the Inspector of Police came to know that the first accused Annadurai surrendered before the Judicial Magistrate, Trichy on 30.4.1992. On 7.5.1992, he arrested the second accused Mottai Thalai Krishnamoorthi in the presence of PW-8 and on his confession, the cycles MO-6 and MO-7 used by the first and second accused were recovered. MO-4 lungi, MO-3 Shirt worn by the second accused were also recovered. Thereafter, he sent him for judicial remand. PW-17 made arrangement for sending the seized articles for chemical examination. After receipt of the report, PW-17 filed charge sheet against both the accused on 29.6.1992, for the offences under Sections 364, 302 IPC and 302 r/w 109 IPC.
g. During the course of trial, the prosecution examined PWs 1 to 17, filed Exs. P-1 to P-16 and marked M.O.1 to 15. Two documents were marked as C-1 and C-2 as court exhibits.
h. When both the accused were questioned about the depositions made by the witnesses, they simply stated that they were innocent and a false case had been foisted against them.
i. After analysing the evidence adduced by the prosecution, the trial Court found both the accused guilty of the offences referred to above and convicted them thereunder. Challenging the same, these two appeals have been filed."
3. Mr.K.S. Kandasami, learned counsel for the appellant Annadurai, the first accused, in CA 261 of 1994 submitted as follows:
"The circumstances available on record would not be sufficient to base conviction against the first accused.
Though the occurrence took place at 3.15 pm, the complaint was given by PW-1 to PW-13 VAO, only on the next day morning. This delay in preferring the complaint has not been properly explained. Admittedly, PW-1 is closely associated with one Ravi, who had got enmity between them and the first accused. Even according to PWs 1 and 2, there was no enmity between them and the first accused and as such, the first accused had no direct motive to commit murder of the deceased. Admittedly, there is no evidence to show that the deceased was last seen in the company of the first accused. Merely because the dead body was recovered from the pumpset belonging to the first accused or his family, it cannot be concluded that the murder was committed only by the first accused. Evidence of PW-10 would not show that only after the murder of the deceased, the first accused came to her house left the cycle there and he went away. The circumstances available would not form a complete chain so as to point out the guilt of the first accused with reference to the charge of murder".
4. Mr.K.S.Rajagopalan, learned counsel appearing for the second accused in C.A. No.236 of 1994 would submit the following:
" The evidence of PW-3 is not reliable, especially when he did not identify the second accused in the identification parade. Though it is the case of the prosecution that the second accused was arrested on 7.5.1992 and on his confession, the clothes and cycles were recovered the same cannot be believed, in view of the admission made by PW-3 that he saw the second accused in the police station on 30.4.1992 itself. Furthermore, PW-3 did not identify properly, the MOs 3 and 4, the clothes of the second accused and his identification marks, as pointed out by PW-3 are not found in the clothes. There is no sufficient evidence to connect the second accused either with the offence under Section 364 IPC or with the offence under Section 302 r/w 109 IPC"
5. With reference to the above contentions, Mr. S. Jayakumar, Additional Public Prosecutor would argue in detail, by pointing out various circumstances available on record and contend that the reasonings given by the trial Court for imposing conviction upon both the appellants are correct and valid.
6. We have carefully scrutinised the rival contentions and gone through the records.
7. It cannot be debated that there is no direct evidence in this case. The entire case is based upon the circumstantial evidence. It is well settled that the circumstantial evidence, in order to sustain the conviction in a murder case, must satisfy three conditions.
"1) The circumstance from which an inference of guilt is sought to be drawn must be cogently and firmly established.
2) Those circumstances should be of a definite tendency and unerringly pointing towards the guilt of the accused.
3) The circumstance taken cumulatively should form a complete chain so that there is no escape from the conclusion that in all human probability the crime was committed by the accused and none else and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused."
8. In the light of the above legal proposition laid down by the Supreme Court as well as this Court, let us now go into the circumstances available on record. On going through the records, it is seen that the following circumstances have been placed before the Court:-
1) Motive for the occurrence, as spoken to by PW-1, Amulraj and PW-2 Padmavathi, the parents of the deceased, as against the accused 1 is that PW-1 and 2 beat his brother with chappals as he misbehaved with PW-2.
2) The deceased boy, who was studying III standard in the school was taken away by the second accused from the custody of the class Master, PW-3.
3) PW-4 saw the deceased and the second accused together, while they were going in a cycle.
4) PW-5 saw the accused 1 and 2 at or about the time of occurrence coming fast in a cycle from northern side to southern side near the place of occurrence.
5) Recovery of dead body of the deceased from the pumpset belonging to the first accused family.
6) The arrest of the second accused on 7.5.1992 and consequential recovery of the clothes of the second accused and the cycles used by the accused 1 and 2 from one Kaliamurthi and PW-10 respectively.
7) Conduct of the first accused who surrendered before the Court immediately after the occurrence.
9. Let us first take the evidence relating to motive. In a criminal case, that too in the case of circumstantial evidence, the aspect of motive is an important thing to be proved. In the case of murder where eye-witnesses are available, the failure to prove the motive would not be a significant factor in the event of placing reliance upon the evidence of the eye witnesses. But, in the case of circumstantial evidence, the main important link is the motive.
10. In the light of the said legal situation, let us now consider whether the motive as projected by the prosecution has been established or not. The evidence relating to the motive has been spoken to by PWs 1 and 2.
PW-1 is the father of the deceased and PW-2 is the mother of the deceased. The incident which took place three months prior to the date of occurrence is an important event. According to PW-2, she went to the terrace of the building belonging to he first accused for the purpose of collecting paddy dried up there. At that point of time, one Chandrasekaran, brother of the first accused, under the guise of helping her, misbehaved with her by catching hold of her hand. While wriggling out her hands from the grip of the said Chandrasekaran, PW-2 reprimanded him by stating that he should not have behaved like this as PW-2 is his sister like. Thereafter, PW-2 informed this incident to PW-1, who came in the evening. On hearing the incident, PW-1 got angry. Then PWs 1 and 2 took broomstick and chappals and went to the house of the first accused and beat the said Chandrasekaran in the presence of villagers.
10. Though PWs 1 and 2 in their cross-examination admitted that there was no enmity between the family of the first accused and that of them, both of them would state that the first accused stopped talking with PWs 1 and 2 after the above incident. This would show that the first accused felt aggrieved very much over this beating incident, and from then on wards he was not in talking terms with PWs 1 and 2's family, even though PW-1's family was residing in the opposite house.
11. In this context, it would be relevant to look into the postmortem certificate Ex.P-6. Ex.P-6 would show that the deceased sustained 26 injuries. The various parts of the body and the manner in which the injuries were inflicted on the body of the deceased would clearly indicate show that the person who had strong grudge alone would have caused these serious injuries on the body of the deceased. The injuries were found on the various vital parts such as parietal region, occipital region, right temple, fracture on the temporal bone and communicated fracture involving the right middle cranial foss of base of skull and fracture on the first and second ribs. These would show that the deceased was beaten cruelly and done to death. On going through Ex.P-6, post mortem certificate it is clear that the person who had a strong motive or enmity against the deceased, alone should have subjected the body of the deceased with inhuman treatment by inflicting 26 injuries causing his death.
12. In that view of the matter, it would be quite relevant to consider the rigour of the motive projected by the prosecution. It is true that there was no enmity between the families of the first accused and PW-1. But it should not be forgotten that the brother of the first accused was beaten with chappal and broomsticks in the presence of public by PWs 1 and 2. It should also be borne in mind that the villagers who had gathered there at that also beat the said Chandrasekaran on hearing the news that he misbehaved with PW-2, who was his sister like.
13. If the incident involving chappal beating takes place in a village, naturally, this would be considered a very great insult to the family. Moreover, the chappal incident had taken place for the reason that Chandrasekaran, the brother of the first accused pulled the hand of PW-2 and tried to molest her. These incidents would have definitely created a situation where the entire villagers would feel that A-1's family had committed a grave blunder.
Moreover, in a village when a person is beaten with chappal, that too in the presence of public, it would be considered a great insult or disgrace. In the light of these incidents, it can be safely held that the first accused family had a strong grudge over the family of PWs 1 and 2.
14. Another question would arise in this context is as to why A-1 did not choose to do any harm to PW 1 or PW 2, who have caused disgrace to the family of the first accused.
There is no difficulty in answering this question because, the punishment which would be given to the son of PWs 1 and 2 would be graver than the punishment given to PW 1 or PW 2.
It is stated by PWs 1 and 2 that they have got three children. The first two children are daughters, studying in VIII and VII standard respectively. The deceased, their child is the only son they had, aged about 8 years. Therefore the situation where A-1 had designed to finish the life of the only son of PWs 1 and 2 can be considered as possible. Since A-1 had a strong enmity or grudge against the family of PW-1 and in such a fact situation, the design entertained by the first accused to commit murder of the deceased, the only son of PWs 1 and 2, cannot be ruled out.
15. This fact relating to motive has been mentioned in the earliest document namely Ex.P-1. In Ex.P-1, they mentioned about the involvement of the first and second accused, in taking away their son only on the basis of the statements given by the other witnesses. A reading of the complaint Ex.P-1 and the evidence of PWs 1 and 2 would not indicate that PWs 1 and 2 wanted to implicate the accused falsely. As a matter of fact, as noted above, both of them admitted that they had no enmity against the first accused.
16. In this context, another factor to be noticed is that though PWs 1 and 2 would categorically state about the incident involving motive, there is no denial of the same in the cross examination of PWs 1 and 2. In fact, it was suggested to PW-1 that the said incident did not take place three months prior to the occurrence, but took place one year prior to the date of the occurrence. That apart, it would be relevant to notice the answer given by the first accused for the 2nd under Section 313 Cr.P.C. relating to this incident involving the beating of Chandrasekaran. In the answer, the first accused merely stated that he did not know. Under the circumstances these factual aspects, spoken to by PWs 1 and 2 regarding motive as against the first accused, in our view, can be said to have been clearly established.
17. Let us now come to the second circumstance, namely taking away of the deceased from the custody of PW-3.
PW-3 is a school Teacher. According to him, on the date of occurrence, i.e. on 29.4.1992, the second accused came to the school and requested permission from him to take the deceased with him, since his father wanted him to bring the boy. Then PW-3 allowed the second accused to take the deceased with him. At that time, he saw the deceased going along with the second accused in a happy mood. Therefore without any suspicion on the second accused, he allowed the deceased to go along with him. According to him, the second accused was identified as 'Mottai Thalaian' wearing shirt and lungi. It is his further statement that till 4.10 pm, the deceased did not turn up and therefore, he asked Gayathri, cousin of the deceased, who was studying in that school, to take the school bag of the deceased along with her. Accordingly, Gayathri took the school-bag of the deceased and reached the house of the deceased and informed PW-1 about his leaving the school earlier. On coming to know of this, PW-1 hurriedly came to the school and enquired PW-3 about his son. PW-3 told PW-1 that a man with mottai thalai came and took the deceased, stating that PW-1 sent him. Finding fishy, PWs 1 and 3 went in search of the deceased in various places in the village.
18. These factors have been mentioned by PW-1 in the complaint Ex.P-1, supported by PW-3 in his evidence. On going through the deposition of PW-3, there is nothing to indicate that he had falsely stated a false against the 2nd accused. PW-3 had neither interest in PW-1 nor enmity against the second accused. It is also to be noted that PW-1 himself would state that there was no enmity against A-2. In the light of the above situation, there is no reason to reject the evidence of PW-3.
19. With regard to the evidence of PW-3, it is submitted by the counsel for the second accused that he was not properly identified by PW-3. He would also point out the failure to conduct an identification parade to confirm the evidence of PW-3. With regard to the evidence of PW-3, as noted above, the counsel for the second accused would submit that the second accused was arrested on 30.4.1992 itself as admitted by him and therefore, the identification of MOs 3 and 4, the clothes of the second accused which were recovered from him, has no value, as the prosecution case is that he was arrested on 7.5.1992 and only thereafter, these articles were recovered.
20. It is true that the person, who was not known earlier to the accused has to identify him in the identification parade. Otherwise his identification in the Court for the first time would be a very weak case of evidence. But in this case, the said principles would not apply, in view of the fact that PW-3 has specifically stated that he talked to the second accused for some time and saw him carefully and thereafter, allowed him to take the deceased. The relevant evidence is as follows:
@29/4/1992 md;W gs;spf;F te;jhd;/ md;W gpw;gfy; 2/45 kzp ,Uf;Fk; nghJ xU bkhl;ilj;jiyad; nyrhf Ko tsh;e;J ,Ue;jJ/ fl;lk; nghl;l ifyp bts;isapy; gr;irfyh; g{g;nghl;l miuf;if rl;il mzpe;jpUe;j xU Ms; te;J mHfphpapd; mg;gh gps;isia miHj;J tur; brhd;djhf brhd;dhh;/ ehd; me;j egUld; mHfphpia mDg;gp itj;njd;/ nghFk; nghJ me;j egnuhL mHfphp rphpj;Jg; ngrpf; bfhz;Ljhd; nghdhd;/ //////// vd; f!;loapy; cs;s xU igaid miHj;Jg; nghdjhy;. ehd; mtiu ed;F ghh;j;njd;/@ ("On 29.04.1992 he came to the school. That day at 2.45pm, a head shaved man with a little grown hair, wearing chequed lungi and green colour shirt came to take the child saying that his father wanted him. I sent Azhagiri with that person. While Azhagiri was going along with that person he was talking to him with a smiling face ...... since the boy was taken from my custody, I saw the person carefully.")
21. It is held in the decision reported in 1998 SCC 859 (Ronny @ Ronald James Alwaris and Others Vs. State of Maharashtra) that identification of the accused in the parade is always a must in all the cases. When the witness saw the assailant running away after the murder and when the witness had only a mere fleeting glimpse, then his identification in the Court without identification in the parade, would not be a sufficient and trustworthy evidence to sustain the conviction.
22. In this case, as observed by the Supreme Court, PW-3 had an opportunity to interact with the second accused and noticed his physical features and after seeing his features clearly, he allowed him to take the boy with him.
So, the evidence of PW.3 would make it clear that PW-3 was talking with the second accused for some time and only after his conversation with him for some minutes, he was satisfied that he must be a genuine person, and then he allowed the deceased to go with the second accused and also noticed that the deceased was going happily with him. These things would make it clear that he had the opportunity to notice the physical features of the second accused. In that view of the matter, there is no difficulty in holding that the absence of an identification parade or failure to conduct such a parade by the Investigating Officer would discredit the evidence of PW-3.
23. There is yet another factor which should be noticed to hold that the evidence of PW-3 is reliable and trust worthy. When PW-3 was cross examined, he stated that the deceased attended school both the forenoon and afternoon classes and his attendance had been marked in the attendance register. He would also state that the said attendance register was seized by the Police. At that point of time, a suggestion was put by the accused to PW-3 that the deceased did not attend school on that date and the attendance of the deceased was not entered into in the attendance register on 29.4.1992. This suggestion was denied by PW-3. A further suggestion was put to PW-3 that on that day, Mottai Thalaian did not come to the school and take away the deceased from the school. This suggestion was also denied by PW-3. Curiously, that suggestion was not put by the second accused but by the first accused. But as seen from the trial Court judgment, the second accused filed an application before the Court to summon the attendance register. Accordingly, the attendance register was summoned and marked as Ex.C-2. On a perusal of Ex.C-2, it is clear that the deceased attended the school on that fateful day both in the forenoon and in the afternoon.
Under these circumstances, it is quite obvious that the second accused came to the school and took the deceased from the custody of PW-3, giving false information that the boy was wanted by his father.
24. Let us now come to the third circumstance, namely the deceased and the second accused were seen together in a cycle. This aspect has been spoken to by PW-4. PW-4, Palaniammal,was a resident of the same village as that of PW-1. She deposed that when she heard the crying sound of her son from outside, she came out of her house and saw a man with Mottai thalai going in a cycle along with a boy, wearing red shirt, sitting in the cycle carrier. It is specifically stated by her that he was proceeding in the cycle towards the southern side. It is true that PW-4 would state that she was not able to identify the said Mottai thalaian. But she identified the shirt worn by the deceased, which was recovered from the body of the deceased.
She would further state in the chief examination that PW-1 at about 4.30 pm, came in search of the deceased and she gave him the information about a boy, being taken in a cycle by a Mottai thalaian. These things have been mentioned by PW-1 in Ex.P-1 itself. On going through the evidence of PW-4, it is clear that a boy wearing red shirt was taken by a person with mottai thalai, at or about the time of occurrence and that was informed to PW-1. On 30.4.1992, on coming to know that a boy was found dead in the pump set, she also went and saw the boy who was wearing red shirt. Therefore even though she was not able to identify the second accused, the fact that a boy wearing red shirt was taken by a Mottai thalaian, during the relevant time, can be taken into account. This evidence given in the chief examination regarding the identity of the shirt of the deceased has not been challenged in the cross-examination.
25. The next piece of evidence is that both the accused were seen together near the house of PW-5 in a cycle at 3.15 pm. PW-5, Vasugi, was a resident of the same village. According to her, on 29.4.1992, at about 3.15 pm, she heard the barking noise of a dog and when she came out she saw the first accused Annadurai and one Mottai thalaian going in a cycle fastly. She identified the second accused in the Court as Mottai Thalaian. According to her, both of them came from South side to her colony and turned towards eastern side. She would further state that within a few minutes PW-1 came in search of his son and at that time, she told him about the accused going to the other side fastly in a cycle and asked him to go and see the pumpset, suspecting that the accused must have done something to his son. The next day she came and saw the dead body of the deceased in the pumpset. In the cross examination she would specifically state that both of them, at or about the time of occurrence, came in a cycle fastly and dogs also barked and on hearing the noise, she came out and saw the accused going to the other side in the cycle fastly.
26. As pointed out by the counsel for the second accused, there is no identification parade, so far as the second accused is concerned. In this case, PW-5 would state that she saw the second accused when they were going fastly in the cycle. According to her, she did not see the second accused thereafter and identified him only in the Court. It may be that the evidence of PW-5 by itself would not be sufficient to hold that the second accused was the person who was found with the first accused going in a cycle. But, it should not be forgotten that the features of Mottai Thalai have been spoken to by PW-3 clearly and according to PW-3, the second accused came to the school and took the deceased at about 2.45 pm. At 3.15 pm, PW-5 saw both the accused going together in the cycle. The fact that PW-5 asked PW-1 to go and check the pumpset would show that both the accused came from the area where the pumpset was situated and went towards the eastern area. It is stated in the complaint that PW-1 got information that the deceased was being taken by Mottai Thalaian nearly Panavalai Road.
PW-1 would also state that PW-5 gave information to him that the accused persons came through Panavalai road. The relevant evidence is as follows:
@ mLj;J te;j thRfp vd;w bgz; vd;dplk;. @ma;aa;nah xU bkhl;ilj; jiyaDk; gpr;ir ehl;lhh; igad; mz;zhJiua[k; ifypiaf; Tl rhpahf fl;lhky; ifapy; J}f;fpg; gpoj;Jf; bfhz;L irf;fpis ntfkhf Xl;of; bfhz;L bjw;fpypUe;J tlf;F Kfkhf FWf;nf CUf;Fg; nghFk; kz; ghijapy; nghdhh;fs;@ vd;Wk; mth;fis eha; jhf;fpajhft[k;. jhd; ghh;j;jjhft[k; brhd;dJ/ nkYk; thRfp mz;zhJiujhd; c';fs; igaidf; bfhz;Lngha; bfhd;dhYk; bfhd;D ,Uf;fDk; eP;';fs; vjw;Fk; mth;fs; gk;g; brl; gf;fkha; ngha; ghU';fs; vd;W vd;dplk; brhd;dJ. mz;zhJiuapd; gk;g; brl; CUf;Fk; mhprd fhydpf;Fk; bjd;g[uk; mjhtJ gdbtsp nuhl;oh;f;Fk; fPH;g[uj;jpy; ,Uf;fpd;wJ@ ("Vasugi, who came next told me "One head shaved person and Annadurai, son of Patchai Nattar, were going fast in a cycle even without wearing their lungi properly, along the mud road leading to the village from the south road to north". She also said that dogs barked at them. More over Vasugi said Annadurai would have taken your son and done away with him and you may better go and see near their pump set. The pump set of Annadurai is situated between the village and the south of Harijan Colony i.e. East of panaveli road.")
27. As noted above, these particulars have been mentioned in Ex.P-1 also. In the light of these materials, we can place reliance on the evidence of PW-5, who saw both the accused together at 3.15 pm, near the place of occurrence.
28. Let us now come to the fifth piece of evidence, namely recovery of the body of the deceased from the pumpset of the first accused. According to PW-1, he went to the pumpset on 30.4.1992 at 8 am and kicked the door. When the door was opened, PW-1 and others went inside and saw the dead body of the deceased inside the pumpset. According to him, the door was locked by means of a chain. As a matter of fact, on the direction of PW-5, PW-1 came to the pumpset on the earlier evening and found the door locked. When he saw through the window, nothing was seen. At that time, he did not suspect the murder of the deceased. But however, since the deceased did not turn up in the night, PW-1 and others came back again to the pumpset and broke open the door.
29. PW-17, Inspector of Police came to the spot, prepared the observation magazar, Ex.P-8. A reading of the observation Magazar would go to show that the murder had taken place only inside the pumpset. There is no dispute over the fact that the pumpset belonged to the first accused family. As rightly pointed out by the learned Additional Public Prosecutor, the accused alone would have access to the pumpset room and after the death of the deceased inside the pumpset room, a stone was put on the body of the deceased and then the door was locked and thereafter the accused fled the place.
30. When the occurrence took place inside the pumpset of the first accused, it must be explained by him as to how the dead body came to the pumpset. It is not as if the deceased was done away with in some other place and the dead body was dumped inside the pumpset. As noticed above on the earlier evening, PW-1 came and saw the pumpset and found the door locked. When he was trying to see through the window, he was not able to see anything. This fact is is clear from the evidence of photographer PW-14. In the cross examination he deposed that when he saw inside the room through the door, he was not able to see anything. So it would show that the person who was connected with the pumpset alone must have killed the deceased and thereafter locked the room. About these things, there is no explanation from the first accused. All these things would strengthen the evidence of PW-5, who saw the second accused in that area, in which the pumpset was situated.
31. Let us now come to the next piece of evidence relating to seizure and recovery of articles from the second accused. This aspect of evidence has been spoken to by PWs 17 and 8. Since we place reliance on PW-3 who has no axe to grind against the second accused, we have to accept the statement of PW-3 who said in the cross-examination that he saw the second accused on 30.4.1992 in the police station.
In Ex.C-1, the brother of the second accused stated that the second accused was taken to the police station on 30.4.1992 and he was being illegally detained. A perusal of Ex.C-1 would show that the order was passed by the Magistrate on 7.5.1992. Thereafter, the arrest had been done, as if he was arrested in the presence of father in law of PW-1. In view of the admission made by PW-3, who saw the second accused on 30.4.1992 in the police station, we have no hesitation to reject the evidence relating to the arrest and recovery. But this rejection, in our view, would not affect the other piece of evidence which is available on record.
32. Of all the pieces of circumstantial evidence, in our view, greater importance must be given to the conduct of the first accused in having surrendered before the Judicial Magistrate, Trichy, even before the First Information Report has been registered.
33. In this context, it would be relevant to refer to some of the Judgments, wherein it has been held that explanation has to be given by the accused in case of circumstantial evidence.
34. In (Sugha Singh Vs. State of Punjab) the following observation has been made:-
" The abductors alone could tell the Court about as to what happened to the deceased after they were abducted. When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murders of the deceased."
35. In 2000 8 Supreme Court Cases 382, (State of West Bengal Vs. Mir Mohammad Omar and Others) the following observations were made:-
" Abductors have not given any explanation as to what happened to Mahesh after he was abducted by them. ....
The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the post probable position.
The above principle has gained legislative recognition in India when Section 114 is incorporation in the evidence Act. It empowers the court to presume the existence of any fact which it things likely to have happened. In that process the Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case."
This observation was made by Supreme Court while interpreting Section 106 and 114 of Evidence Act.
36. A Division Bench of this Court in 2001 (1) L.W.(Crl.) 108 (Vaiapuri Vs. State of Tamil Nadu), while referring the observation of the Supreme Court, would make the following observation:
"In fact, in a case of circumstantial evidence, the conduct of the accused would also provide a supporting link with the other available materials. In a recent judgment in the case of State of Tamil Nadu Vs. Rajendran (2000 SCC Crl.40), it has been held by the Supreme Court as follows: " In a case of circumstantial evidence when an incriminating circumstances is put to the accused and the said accused either offers no explanation or offers an explanation, which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete This proposition fully applies to the circumstances of the present case. On the circumstances enumerated above which have been established by the prosecution, we have no hesitation to come to the conclusion that the charge of murder has been proved beyond reasonable doubt as against the accused respondent."
The above observation made by this Court as well as the Apex Court would be applicable to the facts of the present case. In the case of circumstantial evidence, when the important materials have been put to the accused during questioning under Section 313 Cr.P.C. the same has to be explained by giving proper answers by the accused. But in this case, the accused concurred with only one thing stating that they were innocent. As noted above the first accused pleaded ignorance when he was questioned about the incident in which Chandrasekaran was beaten with chappals and broomstick. To the question No.26, put by the Court with reference to his surrender on 30.4.1992, the first accused stated that he left the village at 4.00 pm on 29.4.1992 and came to Trichy the same night and stayed in his relative's house and on getting afraid, he surrendered before Court.
37. In this context, the evidence of PW-10 is quite relevant. He would state that he saw the first accused coming and leaving the cycle and throwing the cycle key into the house of PW-10. In consonance with the said statement, the accused had stated in questioning under Section 313 Cr.P.C., that he left the village at 4 pm and came to Trichy the same night and on the next day, he surrendered. In this context, it would be relevant to note that PW-1 came to know about the murder only after 8 am on 30.4.1992 and gave a complaint to PW-13 only at 9.30 am, the next day, to PW-16, the Sub Inspector of Police, who registered the case only at 11.30 am and sent the First Information Report to the Court as well as to the Inspector of Police, PW-17, who went to the Police Station at 12 noon and received the First Information Report. The First Information Report was received by the Magistrate only at 2.20 pm on 30.4.1992. But in the meantime, the first accused surrendered before the Judicial Magistrate, Trichy.
38. As explained above, the prosecution established that the deceased was taken away by the second accused and both the accused were seen together near the place of occurrence by PW-5, at or about the time of occurrence and the dead body was recovered from the pumpset of the first accused and as such, it is for the accused to give explanation as to what happened to the deceased, who was taken by the second accused and only dead body of the deceased was found in the pumpset of the first accused, apart from the fact that no explanation has been given by any of the accused that the first accused surrendered before the Court on 30.4.1992, even before the First Information Report was registered. This in our view is a connecting link to the other circumstances.
39. Under these circumstances, in our view, all the pieces of circumstantial evidence put together and taken cumulatively, would form a complete chain to hold that the deceased was taken by the second accused from the school, only at the instance of the first accused, in order to take revenge on the family of PW-1 and PW-2 thereafter the deceased was done away with by the accused in the pumpset belonging to the first accused.
40. Therefore, considering what are stated in the above paragraphs, we have no hesitation to hold that the reasonings and findings given by the trial Court for imposing conviction on the appellants are perfectly justified and the appeals have no merits and they are dismissed. Consequently, Crl.M.P. No. 189/1995, is also dismissed. The trial Court is directed to take steps to secure the custody of the accused to undergo the remaining period of sentence.