Balu @ Balasubramanian vs State

M. Chockalingam, J.—Challenging the judgment of the Principal Sessions Judge, Virudhunagar District at Srivilliputhur in S.C. No. 115 of 2006, whereby the appellant/accused was charged and tried for commission of offence under Sections 302 and 394 r/w 397 of IPC, the present Criminal Appeal has been filed. On trial, the appellant/accused was found guilty whereby life imprisonment along with fine and default sentence on the first charge and also 7 years R.I. along with fine and default sentence on the second charge were awarded.

The short facts necessary for the disposal of this appeal can be stated as follows:

(i) P.W.1 is the son of the deceased Thangammal. The deceased was living in her ancestral house at Thiruchuzhi. P.W.1 was living along with his family at Aruppukottai. The accused/appellant was employed under the husband of the deceased-Thangammal and he was carrying on the work in the rice mill. After his death, he used to do the work which was assigned to him by the deceased Thangammal. Thus the accused was well known to the deceased and her family members.

(ii) On the date of occurrence, that was on 26.08.2005 at about 7.30 a.m., the deceased was sitting in the front part of the house. The accused came there and she informed that since one year was over from the time of death of her husband, some cleaning work should be done to perform certain ceremonies. Meanwhile, work was assigned to the accused/appellant, who got inside and commenced the work. At about 10''O clock, she gave Rs. 10/- to him for getting some food from the hotel. The accused went over and after some time, when he got inside, P.W.2 has witnessed the same. After some time, when P.W.3 and P.W.5 were going outside from their respective houses situate nearby, they found the accused/appellant coming hurriedly from the house of the deceased, and at that time, tension prevailed. P.W.3 and P.W.5 got into the house and found no response. They found the deceased Thangammal lying speechless. Immediately they gave intimation to P.W.1 by telephone.

(iii) P.W.1, on receipt of the intimation, along with his son P.W.4 came to the place and he found his mother speechless, and the jewels of the mother were also stolen. He took his mother immediately to the clinic run by one Dr. Gnanavel. Initial treatment was given. Then he advised that the deceased should be taken to the nearby hospital. Accordingly, she was taken to Manimalar Clinic situate at Aruppukottai and the same was run by P.W.12. He also gave initial treatment and noticed the injuries sustained by her, and thereafter she was taken to Vikram Hospital, Madurai. P.W.1 proceeded to the respondent-Police Station and gave complaint under Ex.P1 on 27.08.2005.

(iv) P.W.18 on the strength of the complaint, registered a case in Crime No. 209 of 2005 under Sections 324 and 379 of IPC and Ex.P21-First Information Report was despatched to the Court. P.W.17, who was the Sub-Inspector of Police in the Veerachozhan Police Station, was at the relevant point of time, also incharge of the Sub-Inspector of Police of Thiruchuzhi Police Station. He took up the case for investigation and on receipt of the F.I.R., he proceeded to the place of occurrence and prepared Ex.P9-Observation Mahazar and Ex.P24-Rough Sketch. He also recovered from the place of occurrence, the material objects. Thereafter, P.W.1 took the deceased from Aruppukottai Hospital to Vikram Hospital, Madurai and she was given treatment and the A.R. copy was also marked as Ex.P3. Thereafter, pending the treatment, she was taken to the house at Thiruchuzhi and she died on the next day morning, i.e. on 28.08.2005 at 1.45 hours.

(v) Then, P.W.1 went to the respondent-Police Station and gave further report, on the strength of which, the case was amended to Sections 302 and 380 IPC. The amended F.I.R.-Ex.P20 was despatched to the Court. P.W.19-Inspector of Police took up the investigation, proceeded to the house and conducted inquest over the dead body in the presence of witnesses and Panchayatars and prepared Ex.P22-Inquest Report.

(vi) P.W.7 conducted autopsy over the body of the deceased in the Government Hospital, Thiruchuzhi, on receipt of requisition made by the Investigation Officer. P.W.7 issued Ex.P5-Post Mortem Certificate and gave his opinion that the deceased would have died 12 to 24 hours prior to autopsy.

(vii) Further investigation was taken up by P.W.20-Investigating Officer. He arrested the accused on 07.11.2005 at 7''O clock in the morning at the entrance of Samayapuram Muthumariamman Temple in the presence of P.W.14 and another witness. At that time, the accused came forward to give confession statement voluntarily and the same was recorded in the presence of witnesses. The admissible portion of the confession statement of the accused is marked as Ex.P16. On the basis of the confession statement, the accused produced the material objects namely, shirt, lungi, towel and polythene bag, marked as M.Os.9, 10, 11 and 12, respectively. They were all recovered under a cover of Mahazar. Then the accused took the police party to Chennai. He took them to P.W.8 with whom he pledged the chain, bangles and a ring, marked as M.O.1, 2 and 3, respectively. They were all recovered under a cover of Ex.P18-Mahazar. Then the accused took the police party to Thiruchuzhi, and on 08.11.2005, the accused produced the saffron-coloured dhoti and also an iron rod, and they were all recovered under a cover of Ex.P19-Mahazar. Thereafter, the accused was sent for judicial remand, and the material objects were sent to the Forensic Department. Ex.P13 is the Chemical Analyst''s Report and Ex.P14 is the Serologist''s Report. They were also sent to the Judicial Magistrate Court.

(viii) On completion of the investigation, the Investigating Officer filed Final Report. The case was committed to the Court of Sessions and necessary charges were framed against the accused.

In order to substantiate the charges levelled against the accused, the prosecution examined 20 witnesses and relied on 24 exhibits and 18 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which was denied by the accused. No defence witness was examined. The Trial Court after hearing the arguments advanced on either side and considering the materials available on record, took the view that the prosecution has proved the case beyond reasonable doubt and found the accused guilty of the charge of murder and awarded punishment. Challenging the conviction and sentence as referred to above, this appeal has been filed by the accused/appellant.

Advancing arguments on behalf of the accused/appellant, the learned Counsel would submit that in the instant case, according to the prosecution, the occurrence took place between 10.30 to 11.00 a.m. on 26.08.2005, but the complaint was given to the respondent-Police Station by P.W.1 at 1.30 a.m. on 27.08.2005 and thus there was a delay of 14 hours, which remained unexplained. First the deceased was taken to the nearby clinic where she was treated by a Doctor and thereafter she was taken to another clinic where P.W.12 has given treatment. Apart from them, no one has given any intimation to the police and this delay would go to the root of the matter. The prosecution relied much on the evidence of P.Ws.2, 3 and 5 and so far as these three witnesses are concerned, P.W.2 was examined to show that the accused was actually entering into the house at that time, and P.Ws.3 and 5 were examined to speak that the accused was coming out of the house and so far as these three witnesses are concerned, all could not have been in the place of occurrence. According to P.W.3, P.W.2 at that time was away from his shop and hence P.W.2 could not have been in that place. Insofar as P.W.3 and P.W.5 are concerned, they came from their respective houses which are situate just near or opposite to the house of the deceased, but the sketch does not indicate so and hence it is highly doubtful whether there were residents in that place, and further, P.Ws.3 and 5 categorically admitted that the squad of the sniffer dog was brought and a report was also made, but it was not placed before the Court and hence the non-production of the report would clearly indicate that, had it been produced, it would have been against the case of the prosecution.

The counsel further added that it was claimed by the investigator that the statements of these witnesses, i.e., P.Ws.2, 3 and 5 were recorded on 28.08.2005 within a period of two days from the date of occurrence, but the statements reached the Court on 03.02.2006, nearly about 6 months later, and no explanation is forth coming. The counsel further added that the investigator would claim that the accused has been arrested before Samayapuram Temple on 07.11.2005 at 7''O clock in the morning and two witnesses were examined for that purpose. P.W.14 was the person from Thiruchuzhi, and while so, many independent witnesses are available at the nearby places where the accused was alleged to have been arrested, but no one was examined. It is highly artificial that a person was taken from Thiruchuzhi to Samayapuram in order to arrest the accused. Insofar as P.W.14 is concerned, he has categorically admitted that he was taken to the Police Station since there was some suspicion as to his involvement in the incident.

The learned Counsel for the appellant further added that insofar as the recovery of M.Os.1 to 3 are concerned, the evidence is discrepant. P.W.8 was the pawn broker from whom those jewels were actually recovered. The case of the prosecution was that though the jewels were pledged, P.W.8 was asked to go to the Nadar Lodge by the police officials for handing over the jewels to the accused and accordingly he took the jewels to that place and handed over the same to the accused/appellant. On the contrary, according to P.W.19-Investigator, the jewels were recovered in front of the shop of P.W.8, and hence the recovery of M.Os.1 to 3 became doubtful. It is also further added by the counsel for the appellant that the distance between Nadar Lodge and his shop is actually 3 Kms and hence the recovery is doubtful. Added further the counsel that in the instant case, according to P.W.20, he saw the accused with injuries on him, but they were never explained. The counsel further pointed out that altogether it would clearly indicate that the prosecution has miserably failed to bring home the guilt of the accused and hence the accused is entitled for acquittal in the hands of this Court.

This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and also scrutinised the materials available.

It is not in controversy that following the incident that had taken place between 10.30 to 11.00 a.m. on 26.08.2005, Thangammal, the mother of P.W.1 was initially taken to a private clinic and thereafter to Manimalar Clinic situate at Aruppukottai and thereafter to Vikram Hospital, Madurai and then she was taken home and she died on the next day. The Accident Register in respect of the injuries sustained by her was actually produced before the Court. The specific case of the prosecution is that she died out of a homicidal violence and the same was proved through the post mortem Doctor who issued the Post Mortem Certificate. The cause of death as put forth by the prosecution was never disputed by the appellant before the Trial Court and hence the Trial Judge did not feel any impediment in recording so.

In order to substantiate that it was the accused who caused the death of the deceased, the prosecution did not have any direct evidence, but the prosecution relied on circumstantial evidence. It is settled proposition of law that in a case of this nature, where the prosecution rests its case on circumstantial evidence, the necessary circumstances should be placed and proved. The claim of P.W.1 that the accused/appellant was employed with his father when he was running a rice mill, and thereafter he used to visit the house of P.W.1 and also used to do the household work, was never disputed by the police. P.Ws.2, 3 and 5 claimed that their houses are situate nearby the house of the deceased and the accused/appellant was known to all these witnesses. On the date of occurrence, that was on 26.08.2005, P.W.2 has categorically stated that in the morning, the deceased Thangammal was sitting in the house and at that time, the accused was actually doing the family work. This fact was clearly spoken to by P.W.2 and insofar as P.Ws.3 and 5 are concerned, they have stated that the accused/appellant was coming out of the house hurriedly which entertained suspicion. Immediately when they entered the house, they did not get any reply and they found the deceased speechless. Immediately they informed the matter to P.W.1 through telephone. Only on receipt of information, P.W.1 came to the spot and took his mother Thangammal to the nearby hospital for treatment.

Learned Counsel for the accused/appellant has stated that the houses of P.Ws.2, 3 and 5 were actually not shown in the rough sketch and their statements reached the court after a period of 6 months. He further added that in Ex.P1-Complaint given by P.W.1, it has been categorically stated that only on the information of P.Ws.3 and 5, he really came to his house at Thiruchuzhi. It is true that the statements of the witnesses reached the Court after a lapse of time, because they have not relied upon any direct evidence and the case was rested only upon circumstantial evidence. P.Ws.3 and 5 claimed that when they came out of their houses, the accused/appellant came out of the house of the deceased hurriedly and then they went inside the house of the deceased and saw her speechless, which implied that P.W.1, on receipt of information, came to the spot. Therefore, the contention of the learned Counsel for the accused/appellant in this respect, has got to be rejected.

It is true that P.W.1 has given the complaint at 1.30 a.m. on 27.08.2005 and there was a delay of 14 hours. This contention has also got to be rejected for the simple reason that P.W.1 has taken his mother first to a private clinic and thereafter to another clinic and thereafter she has been taken to Vikram Hospital, Madurai, only to save the life of his mother and hence there was a delay.

Further, as far as the recovery of material objects is concerned, the learned Counsel for the accused/appellant brought to the notice of this Court some discrepancy in the evidence of P.W.8 and the Investigating Officer as to the place of recovery. Insofar as the recovery of jewels are concerned, the same have been identified by the accused/appellant and they belonged to the deceased Thangammal during the relevant point of time and date. It is further pertinent to point out that the jewels were recovered from P.W.8, the Pawn Broker. P.W.8 has stated that Exs.P6, 7 and 8 are the receipts issued by him to the accused/appellant for the pledging of the jewels. At this juncture, it is pertinent to point out that the said receipts were recovered only from the accused by the police. Immediately on arrest, the accused gave a confession statement, and the receipts were recovered from him. The receipts actually relate to three jewels, namely, M.Os.1, 2 and 3, which were recovered from P.W.8-Pawn Broker. When such evidence is available, the discrepancy as to the place of recovery as stated by P.W.8 and P.W.19-Investigator need not be given much weight. Only the jewels which were worn by the deceased Thangammal were actually recovered at the instance of the accused/appellant, from P.W.8, which clearly negatives the claim of the counsel for the acccused/appellant. This factum of recovery of material objects coupled with the evidence of P.W.2 and also the evidence of P.Ws.3 and 5 would show that the accused came out of the house hurriedly and that he was the only person available in the scene of occurrence at that time. Therefore, the contentions put forth by the learned Counsel for the accused/appellant as referred to above, do not carry any merit whatsoever and they are liable to be rejected and accordingly rejected. Thus, the prosecution was able to prove the charges against the accused/appellant that he who was given work by the deceased then and there, has murdered the deceased mercilessly and inflicted such injuries which actually caused the death of the lady, for the purpose of gaining jewels.

The learned Trial Judge had arrived at the correct conclusion and the judgment of the Trial Court does not require any disturbance. Hence, the appeal has got to be dismissed. Accordingly, the conviction and sentence imposed on the accused/appellant by the Trial Court are confirmed and the Criminal Appeal is dismissed.