Sundaramurthy vs State

M. Chockalingam, J.—Challenge is made to the judgment dated 10.2.2010 passed by the learned Additional District and Sessions Judge,

Fast Track Court No. V, Chennai passed in S.C. No. 41 of 2009, whereby the accused/Appellant stood charged, tried along with other accused

shown as second accused for the offences under Sections 392 read with 397, 302 read with 34 and 201 read with 34 of the Indian Penal Code

and the accused/Appellant was found guilty for the offences under Sections 392 read with 397, 302 read with 34 and 201 read with 34 of the

Indian Penal Code and awarded punishment to undergo imprisonment for seven years and to pay a fine of Rs. 3,000/-in default to undergo

Rigorous Imprisonment for three months for the offence u/s 392 read with 397 of the Indian Penal Code and to undergo imprisonment for life and

to pay a fine of Rs. 5,000/-in default to undergo Rigorous Imprisonment for six months for the offence u/s 302 read with 34 of the Indian Penal

Code and to undergo Imprisonment for two years and to pay a fine of Rs. 2,000/-in default to undergo Rigorous Imprisonment for two months for

the offence u/s 201 read with 34 of the Indian Penal Code and all the sentences shall run concurrently.

Though the second accused participated in the trial till the examination of witnesses on the prosecution side, he absconded thereafter. A Non

Bailable Warrant was issued, but he could not be secured. Under the circumstances, the case was split up and proceeded as against this Appellant

and trial was concluded and after following the procedural formalities, he was found guilty and awarded punishment as referred to above. Hence,

this appeal is filed at the instance of the Appellant.

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

(i) P.W.2 is the mother, P.W.3 is the sister and P.W.6 is the father of the deceased Karthik. The accused/Appellant was his friend. The deceased

joined the City Bank at T. Nagar Branch just two weeks prior to the occurrence as a Collection agent. P.W.8 Bank Manager has deposed that

Karthik used to come for work at about 10 O'' Clock and used to go for collection and then returned at about 5 O'' clock.

(ii) On 24.4.2008, the deceased went for collection, but he did not come back. On the said date, P.W.6 father took his son Karthik as billion rider

and left him at the bus stop where he left him in the company of the accused/Appellant. P.W.6 has left from there. That evening since Karthik did

not return till 7 O'' clock and P. Ws.2, 3 and 6 made a search. Thereafter, they proceeded to Pondy Bazaar Police station and informed the same.

In turn, the Police Officials told that their son Karthik was missing from Aminjikarai and hence they should go there and give a complaint.

Accordingly, they proceeded to Aminjikarai police Station and gave complaint Ex.P12 to P.W.13 Sub Inspector of Police, who received the

complaint at about 9.30 p.m. and registered a case in Crime No. 245 of 2008 for ""Man Missing""and the First Information Report in that regard is

marked as Ex.P12.

(iii) While the matter stood thus, P.W.1, who is the President of that area, in which the house of the accused/Appellant is situated, was informed by

the people of that area at about 8 p.m. that a bad smell was emanated from the house of the accused/Appellant, which is kept under lock. P.W.1,

who went over there, ascertained the same and proceeded to Pondy Bazaar Police Station and gave Ex.P1 complaint. P.W.21 Inspector of that

Circle, on receipt of information, proceeded to the spot and broke open the lock and found the dead body of a youngster inside the house. He

ascertained that it was the dead body of the deceased. Immediately, P. Ws.2, 3 and 6 were informed. They came to the place of occurrence and

ascertained that it was the deceased.

(iv) A complaint was given by P.W.1 and a case in Crime No. 278 of 2008 was registered u/s 174 of the Criminal Procedure Code. Ex.P19 First

Information Report was despatched to the Court. P.W.21 Inspector of that Circle continued the investigation, made an inspection and prepared

Ex.P20 Observation mahazar and Ex.P21 Rough sketch. He has also taken M.O.9 series photographs through P.W.11. Thereafter, P.W.21

recovered M.O.12 blood stained cement floor, M.O.13 sample cement floor under the cover of mahazar Ex.P22 and also recovered M.O.5

series pair of slippers under seizure mahazar Ex.P23 in the presence of witnesses. Thereafter, he conducted inquest on the dead body in the

presence of panchayatars and witnesses and inquest report is marked as Ex.P24.

(v) Thereafter, the dead body was subjected to autopsy and P.W.20 Doctor issued post-mortem Certificate Ex.P18 wherein he has opined that

the deceased would appear to have died due to shock and hemorrhage and due to the injuries sustained by him. Pending investigation, P. Ws.18

and 19 came forward to give their respective statements. According to them, both of them were residents of the same street where the house of

the accused is situated. At about 7 p.m., the accused/Appellant along with other accused Paranthaman was moving out of the house of the

accused/Appellant after locking the door and the accused Paranthaman was injured. When P.W.18 and 19 asked the accused/Appellant, he did

not give any answer. Thereafter, they left the place.

(vi) The further investigation would also reveal that the accused Paranthaman was given treatment by P.W.12 Doctor attached to Kilpauk Medical

College Hospital at about 8.30 p.m. Ex.P11 is the Accident Register. Thereafter, he was discharged from the hospital on 25.4.2008. Pending

investigation, the second accused was arrested on 28.4.2008 at Gudiyatham. Then, he came forward to give confession statement voluntarily and

the same is recorded in the presence of witnesses and the admissible portion of the same is marked as Ex.P29. Pursuant to the same, he produced

M.O.7 series fifteen 100 rupees notes and M.O.8 knife and the same were recovered under the cover of mahazar Ex.P30. On the confession

statement given by the accused Paranthaman, investigator came to know as to the involvement of the accused/Appellant. Thereafter, the

accused/Appellant surrendered before the Judicial Magistrate, Mannarkudi on 2.5.2008. Thereafter, the accused/Appellant has given confession

statement voluntarily and the same was recorded in the presence of the witnesses and the admissible portion of the same is marked as Ex.P36. He

also produced M.O.10 knife and M.O.6 bike, which belong to the deceased and the same were recovered in the presence of witnesses under the

cover of mahazat. Thereafter, he was sent for judicial remand. All the material objects were subjected to chemical analysis. Ex.P17 is the

Biological report annexed with Serology report was received.

(vii) On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against

the accused. At that stage, second accused Paranthaman was absconding and a Non Bailable Warrant was issued against him and the same is

pending for long time. Hence the necessity arose for splitting up the case and the case was split up and proceeded against the Appellant/accused

and trial was concluded.

In order to substantiate its case, the prosecution examined 21 witnesses and relied on 41 documents and also relied on M. Os.1 to 13. On

completion of examination of witnesses on the side of the prosecution, when the accused was questioned u/s 313 of the Criminal Procedure Code,

he denied them as false. No witness was examined on the side of the accused.

The Trial Court, after hearing the arguments advanced by either side and scrutinising the materials available on record, found the accused guilty

under Sections 392 read with 397, 302 read with 34 and 201 read with 34 of the Indian Penal Code and awarded the punishment as referred to

above. Hence this appeal is filed at the instance of the Appellant.

Advancing arguments on behalf of the Appellant, learned Counsel would submit that in the instant case, the prosecution had no direct evidence

to offer. The Appellant/accused was arrested only on the confession statement given by the other accused Paranthaman. In a given case like this, if

a person has been fastened with liability, ordinarily, the confession statement given by the co-accused cannot be used against him, if at all it has any

evidentiary value and it must be corroborated with the materials available on record. In the instant case, nothing of that sort has been noticed.

Learned Counsel added further that in the instant case what are all recovered from the accused/Appellant was M.O.10 knife and M.O.6 bike.

Insofar recovery is concerned, P.W.16 Carpenter was examined as witness. In respect of the description of M.O.10 knife is concerned, he has

categorically stated that it was a bill hook. The Carpenter would clearly know the difference between the bill hook and the knife. Hence, the

recovery of the same is not done.

Learned Counsel added further that the dead body was in the house of the Appellant was not correct. During the relevant time, the

accused/Appellant was occupying the rented house and key was with both the deceased and the Appellant. The deceased used to open the door.

It cannot be said that the dead body was found in the house of the Appellant. In respect of last seen theory, the evidence of P. Ws.18 and 19,

pointing to the guilt of the accused, cannot be believed. Even assuming, their evidence has got to be true, they have seen the accused, who was

proceeding in the street, which, cannot, by itself, in any way help the prosecution to point out the nexus of crime to the accused. The prosecution

evidence was in no way connect the crime to the accused. It was the other accused, who was arrested and only on his confession, this accused has

been roped in. Since this accused was the friend of the deceased, only on surmise, this accused has been falsely implicated. But the Trial Court has

taken an erroneous view. This has got to be considered by this Court.

This Court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious considerations on the submissions

made.

It is not in controversy that the dead body of one Karthik, the son of P.W.6 was found dead at Door No. 73, Seeranipuram, T. Nagar,

Chennai as put forth by the prosecution and after registration of the case originally u/s 174 of the Code of Criminal Procedure was subsequently

altered to one u/s 302 of the Indian Penal Code. Following the inquest made by the Inspector of Police P.W.21, the dead body was subjected to

autopsy by P.W.20 doctor, who has opined in the post-mortem Certificate that the said Karthik died due to shock and hemorrhage and due to the

injuries sustained by him. The cause of death as put forth by the prosecution was never disputed by the Appellant before the Trial Court and

equally here also. Hence, it was recorded so and rightly too.

In order to substantiate the charge levelled against the Appellant/accused, the prosecution had no direct evidence to offer, but rested on

circumstantial evidence. The Court is mindful of caution to the Ruling of the Apex Court and also settled principles of law that in a given case like

this, when the prosecution exclusively rests on the circumstantial evidence, the prosecution must place necessary evidence pointing to the hyposis

that except the accused, no one could have committed the offence.

Admittedly, the deceased Karthik was employed in the branch of City Bank at T. Nagar branch as Collection agent. From the evidence of

P.W.8, Manager of City Bank, it is clear that the deceased Karthik came for work on 24.4.2008 and he left the Bank during the day hours for the

purpose of collection and at 5 p.m. he did not return. On the date of occurrence, the collection was to the extent of Rs. 4,500/-. P.W.6 the father

of the deceased Karthik has categorically stated that on the date of occurrence, he took his son as billion rider and left him at the place where the

deceased joined the company of the accused/Appellant.

P. Ws.18 and 19 are the residents of the same street where the accused/Appellant was residing in his house. From their evidence, it is clear

that the accused has already known to them. According to both the witnesses, at about 7 O'' clock, the accused and the absconding accused were

moving in the street and the accused has placed his hands in the forehead of the absconding accused Paranthaman. When both of them questioned

separately, he gave evasive answer. Since the deceased did not return, P.W.6 and others went to Pondy Bazaar Police Station and gave

intimation, but they were asked to go to Aminjikarai police station where they gave a complaint to P.W.13, pursuant to which a case in Crime No.

245 of 2008 for ''Man missing'' was registered. First Information Report Ex.P12 was despatched to the Court. Everybody has searched the

deceased.

It is pertinent to point out that P.W.1, the President of the area, where the accused/Appellant was residing, was informed by the residents of

that area that some bad smell was emanated from the house of the Appellant/accused. After ascertaining the same, he informed the same to the

police Officer. The Police Officer of the Respondent-station made a visit. After ascertaining the fact, he broke open the lock and found the dead

body. The identity of the dead body was ascertained through P. Ws.2, 3 and 6. Thereafter, a case was registered u/s 174 of the Code of Criminal

Procedure at the earliest point of time. The further investigation reveals as to the involvement of both the accused.

The dead body was found in the house of the accused/Appellant. From the evidence available, it was the own house of the Appellant. The

contention put forth by the learned Counsel for the Appellant that it was a rented house and the key was actually with the deceased and the key

cannot be recovered by the police Officer cannot be countenanced. Such a plea was never taken before the Trial Court. While the dead body was

found inside the house of the accused/Appellant, it was the accused/Appellant to explain as to how the body of the deceased was found inside his

house.

After the occurrence on 24.4.2008, P. Ws.18 and 19 have seen the accused/Appellant along with other accused, who were proceeding from

the house, which is kept under lock for few days and some bad smell was emanated from the said house. The other circumstance is that the helmet

of the deceased was identified by P. Ws.2, 3 and 6 and the same was found in front of the house of the accused/Appellant. Pending investigation,

not only the weapon of crime M.O.10 knife, but also M.O.6 Two Wheeler of the deceased was recovered from the accused/Appellant. Hence, it

is for the accused/Appellant to explain as to how M.O.6 Two Wheeler of the deceased came to his custody and the helmet was also found place

in front of the house of the accused.

Thus, the materials objects M.O.10 knife and M.O.6 Two Wheeler were recovered from the accused/Appellant in the presence of the

witnesses. It is true, P.W.16 was the Carpenter. In his evidence, there was a description. In view of the evidence available, much importance

cannot be attached to such a minor discrepancy. All put together, the evidence of P. Ws.18 and 19 stood fully corroborated with the evidence of

P.W.12 Doctor attached to Kilpauk Medical College Hospital and also Accident Register marked as Ex.P11. Thus, it is quite clear that the

accused Paranthaman was admitted in the Hospital on 24.4.2008 and he was given treatment in his forehead and he was discharged from the

hospital on 25.4.2008. These are all clinching circumstances. At this juncture, this Court has to necessarily agree with the settled preposition of law

that in the case of circumstantial evidence, if one or few circumstances are within the knowledge of the accused, it is for him to explain. If he comes

with the false version or suppression of those circumstances, the Court can infer those circumstances against the accused and he will be responsible

for the same.

In the instant case, the above circumstances would point out that the Appellant was fully involved in the crime of murder and also taken the

amount of Rs. 4,500/-and also screening the evidence. The Trial Court has perfectly correct in marshalling the evidence and awarded the

punishment referred to above. This Court finds no infirmity in the findings rendered by the Trial Court either legally or factually. The appeal fails and

the same is dismissed.