Mayakannan vs State

M. Chockalingam, J.—Challenge is made to the judgment of the learned Additional Sessions Division, Virudhunagar District at Srivilliputhur

made in S.C. No. 11 of 2008, whereby the sole accused/appellant stood charged, tried and found guilty under Sections 449, 302 and 394 IPC

and he was awarded punishment of 10 years R.I. with fine and default sentence for the first charge; life imprisonment with fine and default sentence

for the second charge of murder and 10 years R.I. with fine and default sentence for the third charge.

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

(i) PW1 is the resident of Sakkrajakkottai Street, Rajapalayam Village and the deceased Rukmani was her elder sister. The said Rukmani owned

a house at Singaraja Kottiah and however, during the relevant time, she was staying in the house of PW1.

(ii) The accused/appellant was employed in the dairy farm of PW1 and during the course of employment, he misappropriated money from PW1, at

the time of purchasing milch cows. After some time, he was terminated from service. PW1 was liable to pay a sum of Rs. 60,000/- towards salary

balance. Out of which, she has given only Rs. 40,000/- and she retained Rs. 20,000/- for the loss suffered by her. The accused/appellant was

often demanding the money, but PW1 was giving evasive answer.

iii) On the date of occurrence i.e., 06.06.2007, at about 08.00 a.m. the husband of PW1 went for his job and the son of PW1 left along with his

friends and PW1 went outside to see an Astrologer. The deceased was staying alone in the house at about 2.15 p.m. and at that time PW1

returned and found that the house was locked. Thereafter, she went to the upstairs and then she chatted with friend and she came down.

Thereafter, she heard the noise of opening the door. Hence, she came inside the house and searched her sister in all places. At the end, she found

her sister dead due to strangulation and thereafter, she called others. PW1 witnessed the jewels of the deceased were being robbed. PW1 also

informed the incident to her husband through telephone and after her husband reached the house, he immediately informed the incident to the

respondent police station through phone.

iv) On receipt of the information, PW14, the Head Constable, went to the place of occurrence and recorded the statement of PW1. On the

strength of the complaint of PW1, a case came to be registered in Cr. No. 366 of 2007 for the offence under Sections 449, 302 and 394 of IPC.

The printed first information report is Ex.P20. Printed FIR Ex.P20 along with Ex.P1, the complaint, was despatched to the Court concerned and

to the higher officials.

v) On receipt of the copy of the FIR, P.W.15, the Inspector of Police, took up investigation, proceeded to the scene of occurrence, made an

inspection in the presence of witnesses and prepared an Observation Mahazar Ex.P.3, and rough sketches Ex.P.21 and Ex.P22 respectively.

Besides that, he recovered material Objects MO1, MO2 and M10, bed sheet ,pillow and blood stained cotton respectively, in the presence of the

witnesses under the cover of mahazar Ex.P4. Further, he enquired some witnesses and recorded their statements. The investigator conducted

inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared an inquest report, which was marked

as Ex.P.23.

vi) Following the same, the dead body of the deceased was sent to the Government Hospital, for the purpose of autopsy. On receipt of the

requisition made by the investigator, P.W.11, the Doctor, attached to Rajapalayam Government Hospital, conducted autopsy on the dead body of

the deceased and issued Ex.P.10, the post-mortem certificate, and has given his opinion that the deceased died due to asphyxia due to

strangulation, 12 to 18 hours prior to autopsy.

vii) The investigating officer recorded the statements of the witnesses and he also produced one Paulraj, PW4 before the judicial Magistrate to

whom the statements were made and they were recorded u/s 164(5) Cr.P.C.

viii) On 26.06.2007, at 05.30 a.m. PW15, the Investigating Officer arrested the accused and he gave a confessional statement voluntarily in the

presence of witnesses, and the admissible part of the confession statement was marked as Ex.P.5. Following the same, he produced Rs. 1210/- as

remaining amount out of the stolen amount and he also produced jewels, i.e. MOs6 to 9 and 14, one pair of gold bungles, one gold chain, one pair

of gold ear rings (mattal type) and one pair of gold ear stud respectively. He also produced MO 11 iron rod used for grinding the coconut. They

were all recovered under a cover of mahazar and the accused was sent for judicial remand. All the material objects were subjected to chemical

analysis, and the reports were also received. They were marked as Exs.P28 and P29 Chemical analyst''s report and Serologist''s report

respectively.

ix) Pending investigation, a requisition was placed before the Chief Judicial Magistrate for conduct of the Identification Parade. PW4 identified the

accused/appellant in the identification parade, which was conducted by PW12 and the identification parade proceedings are marked as Ex.P15.

x) 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.

xi) In order to substantiate the charges, at the time of trial, the prosecution examined 15 witnesses and relied on 31 exhibits and 15 material

objects. On completion of the evidence on the side of the prosecution, the accused/appellant was questioned u/s 313 Cr.P.C. as to the

incriminating circumstances found in the evidence of prosecution witnesses. He denied them as false. No defence witnesses were examined.

xii) After hearing the arguments of the counsel and looking into the materials available, the trial court took the view that the prosecution has proved

the case beyond reasonable doubt and hence, found the accused guilty and awarded the punishment as referred to above. Under these

circumstances, this criminal appeal has arisen at the instance of the accused/appellant.

Advancing arguments on behalf of the appellant the learned Counsel, Mr. T. Muruganantham, would submit that in the instant case, according to

the prosecution, the occurrence has taken place at 1.45 p.m. on 06.06.2007, and the prosecution had no direct evidence to prove the same. The

learned Counsel further added that the only witness who was examined to speak to the fact that he witnessed the accused climbing down from the

house by a pipe is PW4. Though he gave a statement u/s 164 Cr.P.C. before the learned Judicial Magistrate, he has turned hostile, and hence,

direct evidence was not available for the prosecution. The prosecution rested its case only on the recovery of the materials objects, which,

according to the witnesses, were worn by the deceased during the relevant time. When Ex.P1 compliant was perused, it did not indicate what was

the money actually stolen at the time of the occurrence. But, a sum of Rs. 1210/- was recovered from the accused/appellant as if it was a part of

the stolen money. Thus, there is no evidence to indicate that it was the stolen money.

Added further the learned Counsel that insofar as the jewels were concerned, PW1 has categorically stated that those jewels were purchased

long back and she was wearing those jewels all along and never used to remove the same and all the jewels were actually new. A suggestion was

put to the investigating officer which would clearly indicate that the jewels were never recovered, but it was subsequent introduction to strengthen

the prosecution case. So far as MO.11 was concerned, specific evidence was that it was produced by the accused/appellant in the house, but

contrary to that, PW1 has stated that the police party was taken to the house and she produced MO11. Thus, it would be quite clear that MO11

should not have been used in the crime. Though the jewels were recovered on 26.08.2007 after a period of 20 days from the time of occurrence,

the prosecution has miserably failed to prove that they were actually worn by the deceased and were later recovered from the accused. Under

such circumstances, the prosecution has miserably failed to bring home the guilt of the accused. In such circumstances, the trial Court has failed to

consider the above aspect and it has got to be done by this Court.

The court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions

made and also scrutinized the materials available.

It is not in controversy that one Rukumani, the sister of PW1 was done to death by strangulation in an incident that took place at 1.45 p.m. on

06.06.2007. In order to prove its case, the prosecution had not only examined PW1 and other witnesses but also marked documentary evidence

through postmortem certificate given by P.W.11, the doctor. The cause of death that it was due to strangulation as put forth by the prosecution

was never disputed by the appellant. Hence, the trial Judge is perfectly correct in recording so.

Now in order to substantiate the case of the prosecution, it had no direct evidence, but relied on circumstantial evidence and the first

circumstance relied on by the prosecution is that previously the accused/appellant was employed in the dairy farm run by PW1 and there was a

loss of money to PW1 and on that account, she retained a sum of Rs. 20,000/-. The accused service was terminated and thus, he has grudge over

the same and on the date of occurrence, PW1 and their family members were away from the house, it was the deceased who was staying alone

and when PW1 came to the house, she found the dead body of the deceased and death was due to strangulation. Immediately after the

occurrence, a complaint was given and on the strength of which, a case was registered. PW1 at the earliest in the complaint had categorically

stated that the jewels which were worn by Rukmani were stolen. The investigator would claim that he arrested the accused on 26.06.2007 after

nearly about 20 days from the date of occurrence and the confessional statement was recorded from him and following the confessional statement,

he has produced material objects 6 to 9 and 11 as referred to above. When the witness PW1 has categorically identified those jewels which were

worn by the deceased, and a witness has also been examined for recovery of those jewels from the accused/appellant, it is for the accused to

explain how he came into the custody of the jewels worn by the deceased at the time of the occurrence. It is a fit case where presumption u/s

114(A) of the evidence Act could be drawn. When it was found that the jewels of Rukmani were in the custody of the accused/appellant, within a

reasonable time, it is for the accused/appellant to explain how he had such custody of the jewels. He had no explanation to offer. Further the

contention put forth by the appellant that the jewels worn by Rukmani were new, cannot be accepted in view of the evidence of PW1 who has

categorically identified those jewels marked as Mos6 to 9 and has deposed that they were actually worn by her. Added circumstance is that

recovery of MO.11, iron rod which was actually recovered from inside the house in the presence of a witness. Even as per the confessional

statement, it was actually in the house of the deceased and he took the police party and jewels were recovered from inside the house. By whom it

was produced at the time of recovery is not material. As per the confessional statement, he took the police party, where it was recovered from the

place of occurrence and this act would be pointing out to the nexus of the crime. Under such circumstance, the contentions put forth by the learned

Counsel for the appellant do not carry any merit whatsoever and the learned trial Judge has perfectly rendered the judgment and sentenced him as

referred to above. The court is unable to see anything to interfere in or disturb the findings given by the trial Court either factually or legally. Hence

this appeal fails and the same is dismissed.