Kumar @ Palanisamy vs State

M. Chockalingam, J.—This appeal is directed against the judgment of the learned Principal Sessions Judge, Tiruchirapalli made in S.C. No. 163 of 2002, whereby the sole accused/appellant stood charged under Sections 302 and 404 IPC, tried, found guilty as per the charges and awarded life imprisonment for the offence u/s 302 IPC and two years RI for the offence u/s 404 IPC.

The brief facts of the prosecution case can be stated thus:

a)The accused is the son of one Ponnammal. He was the resident of Keelakurichi village and he was a jobless youth. On 20.09.2001, the mother of the accused was actually working in the field of Arokiamary Ammal, who is the mother of P.W.4. The deceased Meenakshi was also doing agricultural operations in the sugarcane field along with Ponnammal. P.W.2 was also by the side. At the time, as usual Ponnammal advised her son to go for a job and earn and he gave evasive answers. The deceased, who was by the side, also informed him that he should follow the advice of his mother. Immediately, the accused warned her with dire consequences.

b) When P.W.2 and Meenakshi were grazing the cattle in the field, Meenakshi proceeded to collect the grass for the cattle in the sugarcane field of Arokiamary. The said Ponnammal left the field. At about 4.00 p.m., P.W.2 heard the distressing cry came from the deceased and he found the accused throttling the neck of Meenakshi and also jumping over the chest and delivering punches. P.W.2 attempted to interfere and he was threatened with dire consequences. Thereafter, the accused took a pair of gold nose studs (M.Os.2 and 3), a pair of gold bangles (M.O.4 series) and a pair of gold ear studs (M.O.5 series) from the body of the deceased and he went away from the place of occurrence. The same was witnessed by P.W.2.

c) P.W.2 under grip of fear went away from the place of occurrence. P.W.1, V.A.O. received an information at about 6.00 p.m. from the village menial that there was a dead body found in the place of occurrence. Immediately, he proceeded over there and found the dead body. He prepared Ex.P.1, the complaint and went to the police station along with Ex.P.1 and gave the complaint to P.W.12, the Inspector of Police, on the strength of which, a case came to be registered in Crime No. 943 of 2001 u/s 174 Cr.P.C. Ex.P.20, the FIR was despatched to the Court.

d) P.W.12 took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.21, the rough sketch. The scene of occurrence and the dead body of the deceased was photographed through P.W.8. Ex.P.12 is the photos and Ex.P.13 is the negatives. P.W.12 also recovered a gunny bag containing M.O.1, grass under a cover of mahazar. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.22, the inquest report. Following the same, the dead body of the deceased was sent for the purpose of autopsy along with the requisition.

e) P.W.9, the Doctor attached to the Government Medical College Hospital, Tiruchirappalli, on receipt of the requisition, has conducted autopsy on the dead body of the deceased. He has issued Ex.P.15, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of manual strangulation.

f) On 24.9.2001, P.W.12, Investigator examined P.W.2, who was available then and recorded his statement and sent the same to the Court. Thereafter, the case was altered into Sections 302 and 379 IPC. Ex.P.23, the express report was despatched to the Court. On 25.9.2001 at about 12.00 noon, the accused was arrested in the presence of the witnesses. He gave confessional statement and the same was recorded, the admissible part of which was marked as Ex.P.4. Pursuant to the same, M.O.2, nose stud was recovered from the accused under a cover of mahazar. The accused also took the Investigator and P.W.5, V.A.O. to P.W.6, from whom M.O.4 (series) a pair of bangles was recovered. Thereafter, a pair of ear stud (M.O.5 series) and M.O.3, nose stud were recovered from P.W.7. All were sent to the Court. The accused was sent for judicial remand. All the M.Os recovered from the place of occurrence and from the dead body of the deceased were subjected to chemical analysis by the Forensic Science Department on a requisition given by the Investigator through the Court. Ex.P.19 is the Biology report. On completion of the investigation, the Investigating Officer has filed the final report.

The case was committed to the court of sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 12 witnesses and relied on 23 exhibits and 12 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 prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial court heard the arguments advanced on either side and found the accused/appellant guilty as per the charges and awarded imprisonment as referred to above, which is the subject matter of challenge before this Court.

Advancing his arguments on behalf of the appellant, the learned Counsel would submit that the prosecution rested its case only on three pieces of evidence; that one is the direct evidence through P.W.2 and the last seen theory through P.W.4 and the recovery of gold nose stud from the accused and also from the other two witnesses; that no one piece of evidence was available for the prosecution and thus, the prosecution has not proved its case beyond reasonable doubt; that insofar as P.W.2 was concerned, he could not have been the eyewitness at all; that he was the bootlegger involved in number of cases and number of cases have also been registered against him; that the occurrence has taken place at about 4.00 p.m. on 20.09.2001, but he was examined by the Investigator only on 24.09.2001, i.e. after four days; that had it been true that P.W.2 witnessed the occurrence, he would have informed the same to the police or at least to the villagers immediately; that the explanation tendered was that he left the place because of fear and he came to the village after 4 days and then only, he was examined by the police was nothing, but an introduction in order to suit the prosecution case as if there was eyewitness; that thereafter the case was altered to Section 302 IPC; that the examination of the witness after four days would be indicative of the fact that P.W.2 could not have been the eyewitness; that it is to be further pointed out that P.W.2 was not only the close associates of P.W.1, but also to the deceased and under these circumstances, the lower court should have rejected the testimony of P.W.2 outright.

Added further the learned Counsel that insofar as P.W.4 was concerned, he turned hostile; that his evidence was not available for the prosecution; that the evidence in respect of arrest, confessional statement and the recovery of M.O.2,3,4 and 5 were all nothing but an introduction in order to strengthen the prosecution case, but in vain; that according to the prosecution, the accused was arrested on 25.9.2001 in the presence of P.W.5, V.A.O. and his menial; that according to the Investigator, it was V.A.O. and his menial, who identified the accused, but according to P.W.5, V.A.O, he did not know the accused previously and thus, the evidence was discrepant; that in the instant case, the prosecution has claimed that the Investigator arrested the accused on 25.9.2001, but P.W.7, from whom ear stud was recovered, has given contra evidence that the accused was actually taken before him on 24.9.2001; that if to be so, the entire arrest, confessional statement and the recovery all would fall to ground and under these circumstances, the entire theory of arrest, confessional statement and the recovery were nothing but a story invented by the prosecution; that there was no evidence available for the prosecution to bring home the guilt of the accused, but the lower court has found that the prosecution has proved the case beyond reasonable doubt, but it is a case where the prosecution had no evidence at all and the evidence adduced by the prosecution was thoroughly unbelievable and hence, the appellant/accused is entitled for acquittal in the hands of this Court.

Heard the learned Additional Public Prosecutor on the above contentions.

The Court has paid its anxious consideration on the submissions made and scrutinised the materials available.

It is not the fact in controversy that one Meenakshi was done to death in the occurrence that took place on 20.09.2001 at about 4.00 p.m. in the field of one Arokiamary Ammal. Following the inquest made by the Investigator, after the registration of the case u/s 174 Cr.P.C., the dead body was subjected to post-mortem by P.W.9, the Doctor, who has issued Ex.P.15, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of manual strangulation. The fact that she died out of manual strangulation was never questioned by the appellant/accused at any stage of proceedings. Hence, without any impediment whatsoever, it has got to be factually recorded so.

In order to substantiate the case of prosecution that the appellant has not only committed the murder, but also took away the jewels from the deceased, the prosecution relied on the direct evidence of P.W.2 and also P.W.4 for the last seen theory and also the arrest, confessional statement and recovery of jewels, which belonged to the deceased. Insofar as the evidence of P.W.2 was concerned, the Court has considered all the contentions put forth by the learned Counsel for the appellant, which are narrated above. In the instant case, after consideration of the contentions and also looking into the materials available, the court has to necessarily disagree with the learned Counsel for more reasons than one. In the instant case, it is not the fact in dispute that P.W.2 was also the native of the village and he was also doing agricultural operations along with the deceased. The occurrence has taken place on 20.09.2001 at about 4.00 p.m. According to P.W.2, he was also present at the time of occurrence and the accused has actually attacked the deceased and took away the jewels. P.W.2 made an attempt to interfere, but he was threatened by the accused that some dire consequences would follow. Due to grip of fear, he ran away from the place of occurrence and returned after 4 days. Now, at this juncture, the test has got to be applied whether the evidence of P.W.2 is reliable. In the instant case, according to P.W.2, he ran away from the place of occurrence. It is brought to the notice of the court that P.W.2 was involved in number of prohibition cases. Under these circumstances, it would be quite natural that P.W.2, who was threatened by the accused and was under grip of fear and was also involved in number of criminal cases, if approached the police as to the occurrence, it would naturally pass in the mind of the police that he might have committed the offence and would aggravate the situation. In such situation, he ran away from the place. It would be quite clear that except P.W.2, nobody else knew the accused.

P.W.1, the Village Administrative Officer has categorically deposed that he came to the village and made an enquiry and he is unable to fix the accused and then only, he gave the complaint to the police and the case came to be registered u/s 174 Cr.P.C. When the investigation was on, after four days, P.W.2 came and he was enquired and then only, the Investigator came to know that it was a case of murder and also theft of jewels. Thereafter, the case was converted to Section 302 IPC and the express report was sent to the Court. Had it been brought to the notice of the police earlier, there was no need for the police to register the case u/s 174 Cr.P.C. and keep the matter pending for a long time. Thereafter, the investigation was on and the Investigator nabbed the accused and till P.W.2 came to the picture, who was the actual assailant was not known to the police. It is pertinent to point out that the statement of P.W.2 u/s 161 Cr.P.C. was recorded on 24.9.2001 and it has reached the court the very next day, wherein he has narrated the entire incident. While number of cases were registered against a person, no one would come forward to give evidence, but P.W.2 has narrated the entire incident when he was before the court. It is true, he has spoken about the fact after four days, but an explanation was forthcoming from him. Despite full cross examination, his evidence remained unshaken. The Court has to necessarily accept the evidence and it was rightly done by the lower court. The evidence of P.W.4 has been rightly rejected and he has also turned hostile.

Insofar as the arrest, confessional statement and recovery was concerned, the Court has to necessarily believe that part of the evidence. In the instant case, M.Os. 2,3,4 and 5 jewels belonged to the deceased. It is also the case of the prosecution that she was wearing all the jewels at the time of occurrence. It is not the case of the accused that these jewels belonged to him. M.O.2 gold nose stud was recovered from the accused on 25.09.2001 in the presence of P.W.5. M.O.4, gold bangles were recovered from P.W.6 when it was identified by the accused. M.Os.3 and 5, nose stud and ear stud were recovered from P.W.7. All recoveries have been spoken to by P.W.5. The learned Counsel took the court to the part of evidence of P.W.7, who has deposed that the accused was taken before him on 24.09.2001 itself and thus, it would be quite clear that there could not have been any arrest, confessional statement and recovery. It is pertinent to point out that the main witness for the arrest, confessional statement and recovery of all the items, pursuant to the confessional statement given by the accused, was P.W.5, V.A.O. There is no reason to doubt his evidence. It is true, P.W.7 has spoken as if the accused was produced before him on 24.09.2001. Hence, giving much importance to the mistake committed by P.W.7, the entire evidence given by the other witness that the accused was arrested on 25.09.2001 and he has given confessional statement and pursuant to the same, all the jewels, which belonged to the deceased and worn by the deceased at the time of occurrence were recovered, cannot be rejected or doubted.

In the instant case, all the jewels were recovered from the accused on 25.09.2001 and M.O.2 jewel was also recovered from him. The other jewels were recovered from P.Ws.6 and 7 on identification by the accused. Under these circumstances, within a short interval of 3 or 4 days, all the jewels have been recovered. The recovery of jewels originally belonged and worn by the deceased at the time of occurrence and the recovery of jewels within 3 or 4 days would indicate the nexus of the accused with the crime. Thus, the prosecution has proved the case beyond reasonable doubt. All or any one of the contentions of the learned Counsel for the appellant do not carry any merit and they have got to be stated only for the purpose of rejection. The lower court has marshalled the evidence properly and has found the appellant/accused guilty and has convicted him for the offence under Sections 302 and 404 IPC. Hence, the judgment of conviction and sentence imposed by the lower court on the appellant does not require any interference either factually or legally.

In the result, the criminal appeal fails and the same is dismissed.