Chenrayan v. State rep by The Inspector of Police

CRL MP NO. 6339/00 IN CRL APP. 788 OF 2000The Accused/Applicant was directed to be released on bail bythe order of this Court dated 13.4.1999 in CRL MP NO. 6339/00 in CA788/00IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 21.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.788 of 2000Chenrayan .. Appellant/AccusedVs.State rep byThe Inspector of Police,Pennagraham Police Staition,Pennagraham Circle,Dharmapuri District. ..Respondent/ComplainantPrayer:- This appeal has been preferred against the judgment dated7.8.2000 made in S.C.No.201 of 1998 on the file of the IIIAdditional Sessions Judge, Krishnagiri at Dharmapuri District.For Appellant:Mr.C.KanagarajFor Respondent :Mr.V.R.Balasubramanian Additional Public ProsecutorJUDGMENTThis appeal has been preferred against the judgment inS.C.No.201 of 1998 on the file of the III Additional SessionsJudge, Krishnagiri at Dharmapuri.2.On the complaint preferred by P.W.1, the accused has beencharged under Section 302 & 404 IPC. The learned JudicialMagistrate, Palacode, the committal Court, had issued summons tothe accused and on his appearance furnished copies under Section207 of Cr.P.C., and since the case is triable by the Court ofSessions, the Judicial Magistrate has committed the case to theCourt of Sessions under Section 209 of Cr.P.C. https://hcservices.ecourts.gov.in/hcservices/

3.The learned Sessions Judge on appearance of the accused hadframed charges under Section 302 & 404 IPC and when the chargeswere explained to the accused and questioned he pleaded not guilty.On the side of the prosecution P.W.1 to P.W.16 were examined andEx.P.1 to Ex.P.17 were exhibited and M.O.1 to M.O.14 were marked.4.P.W.1 is the son of the deceased. He would depose that theaccused is his uncle's son. According to him, about 9 years beforeto his deposition before the Court during a month of 'Puratasy', hewas at Pallipalayam on a sunday and also on a Monday and thereafterleft Pallipalayam on Tuesday and after hearing about the death ofhis mother on Thursday, while he was attending to the funeral ofthe mother of one Govindan at Pudur, he returned to his house andfound his mother was lying dead with an injury on the throat aswell as on her shoulder and hands and further her ear lobes werealso found cut and the pair of ear stud used by her mother werealso found missing. On suspicion against his brother MuniyenChetty, he preferred a complaint with the VAO and Ex.P.1 is thecomplaint preferred by the him before the VAO, who informed thepolice, who enquired him. He has also identified M.O.2(series) arethe pair of ear studs belonging to his mother.5.P.W.2 is a neighbour of the deceased Papa. According tohim, since there was a repair work carried out in his house, heused to sleep in the pial of the house of the deceased Papa and thegrand children of Papa also used to sleep there. According to him,on Tuesday the accused came to the house of the deceased Papa andstayed there. But in the early morning, he (P.W.2), the grandson ofthe deceased Papa viz. Mathesh and the granddaughter of thedeceased Papa viz.Mani @ Thavamani left the house, and the accusedand the deceased Papa alone were in the house on Wednesday and thathe returned to the house on Wednesday night at about 8.00 pm atthat time Papa was not found in the house. Thinking that she wouldhave gone elsewhere, he (P.W.2) slept outside the house on the pialand in the midnight he became thirsty, so he got up and went insidethe kitchen of the house of the Papa in order to drink water and itwas pitch dark inside the house, he contacted with some object,immediately he struck a match stick and in the match stick lighthe saw the dead body of Papa in the kitchen. Immediately he cameout of the house and brought the younger son of Papa viz. MuniyanChetty, the suspected accused in the FIR. He also found cut injuryon the neck of the corpse of Papa and also cut injury on her righthand and shoulder and both ear lobes were found severed. 6.P.W.3 is the granddaughter of the deceased Papa. Accordingto her, she along with his brother P.W.2 used to sleep in the houseof the deceased Papa during night and on one Tuesday at about 8.00pm the accused came to the house of Papa and the accused is thebrother's son of the deceased Papa. According to her, she wassleeping along which his grandmother in a cot outside the house andthat the accused, his brother Mathesh and P.W.2 were sleeping on https://hcservices.ecourts.gov.in/hcservices/ the pial of the house of the deceased and on the early morning onWednesday at about 6.00 am, she and Mathesh left their house andthat the accused and P.W.2 were sleeping in the house of thedeceased on the varanda. As usual she came to her grandmother'shouse on Wednesday at about 6.00 pm to stay there she could not seehis grandmother in the house and that thinking that his grandmotherwould have gone to her sister's house, she and her brother left totheir house and at about 1200 midnight P.W.2 came and informed herfather that her grandmother was lying dead. He immediately went tothe house of Papa and saw her dead body and that the police came tothe place of occurrence on Friday.7.P.W.4-Maliga, who is known to the deceased and also aneighbour running a tea stall, would depose that Papa was living inher house alone and that her eldest son P.W.1 is at Pallipalayamand her second son Muniyan Chetty was staying in a hut in thefield. According to P.W.4, the accused is known to him and theaccused used to sleep with the grand children of the deceased Papain the pial of the house of the deceased. According to her, somenine years prior to her deposition before the court, she saw theaccused coming out of the house of the deceased at about 7.00 amand was proceeding towards south and that she has not seen Papathroughout the day of Wednesday and that at about 12.00 midnightP.W.2 raised an alarm and the villagers went and saw the body ofPapa inside the house.8.P.W.5 is the VAO, Kandenahalli village. According to him,on 11.10.1991 at about 5.00 am while he was in his villagePazhayaoor P.W.1 came and prefer a compliant which was recorded byhim and after reading the contents of his statement he had obtainedthe thumb impression of P.W.1 below the statement. He alsoaccompanied P.W.1 to Pudur and saw the corpse of the deceased Papa.He has prepared a special report Ex.P.2 in the printed form andprepared three copies for the same and along with his specialreport he had sent the statement of P.W.1 to the Pennagraham PoliceStation through his assistant Kuppusamy and that he waited at theplace of occurrence till the arrival of the police at 11.00 am.9.P.W.14 is the then Sub-Inspector of police, Prumpalai PoliceStation. After receiving Ex.P.1-complaint along with Ex.P.2-special report of the VAO (P.W.5), he had registered the case underCr.No.901 of 1991 under Section 302 & 380 IPC. Ex.P.15 is the FIR.He had despatched the express FIR to the concerned officialsincluding the Judicial Magistrate.10.P.W.15 is the Investigating Officer, who had visited theplace of occurrence after receiving the FIR on 11.10.19991 at about11.30 am and prepared observation mahazar Ex.P.3 in the presence ofP.W.5 and another witness. From the place of occurrence he hadseized M.O.2-blood stained sand, M.O.3-sample sand and M.O.4- https://hcservices.ecourts.gov.in/hcservices/ Aruvamanai under Ex.P.4 recovery mahazar in the presence of P.W.5.He has examined the witnesses and recorded their statements. Hehas conducted inquest on the corpse of the deceased in thepresences of the panchayatdars. Ex.P.17 is the inquest report.The corpse was sent for post-mortem through P.W.13 on 11.10.1991 atabout 3.40 pm.11.P.W.6 is the doctor, who had conducted the autopsy on thecorpse of the deceased Papa. Ex.P.5 is the letter of requisitiongiven by P.W.15 to the doctor for conducting autopsy. He could findboth the ear lobes of the deceased was found severed. He has alsoseen the windpipe of the deceased found cut and there was laceratedinjuries found on the right forearm. He has also found the hyoidbone of the deceased fractured. The doctor has opined that due toasphyxia due to the fracture of the hyoid bone due to strangulationand also due to the cut injury in the wind pipe the deceased wouldhave breathed her last. Ex.P.6 is the postmortem certificate. Hehas further opined that the cut injury on the windpipe of thedeceased would have been caused by a weapon like M.O.4.12.P.W.13 is the post mortem constable. He has recoveredM.O.6-saree, M.O.7-cloth, M.O.8-nose screw, M.O.9-silver bangle,M.O.10-another silver bangle, M.O.11-ring, M.O.12-toe ring,M.O.13-another toe ring and M.O.14-black beads from the dead bodyof the deceased and handed over the same to the Inspector ofPolice. 13.P.W.15 had conducted further investigation. He hadexamined the other witnesses. On 14.10.1991 he had examined thesuspected accused Muniyan Chetti and he has also examined thedoctor and other witnesses and recorded their statements. On25.10.1991 he had arrested the accused and recorded the voluntaryconfession statement given by the accused which was recorded by himin the presence of P.W.8-Rajendran, another VAO. On the basis ofthe confession statement of the accused, he had proceeded toBangalore along with the accused and other witnesses P.W.8-Rajendran and P.W.10-Chinnakannu and at about 8.00 pm on 25.10.1991he had recovered M.O.1(series) pair of ear studs, which wereproduced by P.W.12-Shanthilal on the information furnished by theaccused. He has also examined P.W.9-Santha, P.W.10-Chinnakannu,P.W.11-Nithiyanatham and P.W.12-Shanthilal and recorded theirstatements at Bangalore and Pennaharam. He returned to Pennaharamon 26.10.1991 early morning along with the accused and theproperties seized and produced the accused before the JudicialMagistrate, Pennaharam for judicial remand. On 3.11.1991 he hadgiven a letter of requisition to the Court for sending the materialobjects seized in this case for chemical analysis. https://hcservices.ecourts.gov.in/hcservices/

14.P.W.8-Rajenderan would corroborate the evidence of P.W.15to the effect that on 25.10.1991 the confession statement of theaccused was recorded by P.W.15 in his presence and as per theconfession statement of the accused he also accompanied P.W.15along with Nithiyanantham(P.W.11) to Korandapalayam, Bangalore fromwhere M.O.1-ear studs of the deceased were recovered fromSanthilal (P.W.12), a pawn broker, under Ex.P11-mahazar, in whichhe has signed as a witness along with other witnesses. Ex.P.13 isthe pawn receipt for M.O.1 (series) ear studs being pledged withP.W.12, which was recovered under Ex.P.14-mahazar in the presenceof P.W.8. P.W.8 would further depose that the accused hadhandedover M.O.5-bed sheet, said to have been purchased by theaccused at Bangalore near the pawn broker shop of P.W.12.15.P.W.9-Santha, a resident of Pennaharam, would depose thatshe knows about the accused who is a neighbour of her sister.According to her, some 9 years prior to the date of her depositionbefore the court at about 9.00 am, the accused came to her houseand informed that he had to go to Bangalore in search of a job andthat there was some misunderstanding arose between him and his auntand that he want to go to Bangalore to secure a job and for thatpurpose he requested her to furnish the address of a known personto her. P.W.9 had informed the accused that her sister's husbandwill go to bangalore and also requested the accused to go alongwith him. 16.P.W.10 is the relative of P.W.9-Santha. According to him,he had seen the accused in the house of Santha and at the requestof Santha, he had taken the accused to Bangalore and left him inthe house of Nithiyanantham-P.W.11.17.P.W.11-Nithiyanantham had also admitted that some 9 yearsprior to the date of his deposition before the Court on a Thursdayat about 11.00 am, P.W.10-Chinnakannu and the accused came to hishouse and the accused informed him that he has to go to Bangalorein search of a job and requested him to secure accommodation, forthat he told him that to secure an accommodation at Bangalore mayincur substantial expenditure, to which the accused said that hehas no money but he is having the gold ornaments given by hismother and by pledging the same he can raise the required amountand at the request of the accused he (P.W.11) took him to the pawnbroker shop owned by one Shanthilal (P.W.12) and at the request ofP.W.12 pawn receipt was taken in his name since the accused is asstranger to P.W.12. P.W.12 gave Rs.1,000/- to P.W.11 after takingM.O.1(series) pair of ear studs produced by the accused and that hehas also signed in the pawn receipt Ex.P.13 and that he returned tohis house along with accused and on the next morning he left for https://hcservices.ecourts.gov.in/hcservices/ his job and the accused also left the house by saying that he willreturn after securing a job but he never turn up thereafter andthat 15 days later the police brought the accused to his house atabout 7.30 pm and enquired about the accused and he handed over thepawn receipt Ex.P.13 (wrongly mentioned as Ex.P.5 in the depositionof P.W.11) and also the bed sheet purchased by the accused near thepawn broker shop of P.W.12. M.O.5 is the bed sheet purchased bythe accused.18.P.W.12-Shanthilal, the pawn broker, who is running a pawnbroker shop at Korakandapalayam at Bangalore, would depose that on10.10.1991, P.W.11-Nithiyanantham had brought a person and produceda pair of ear studs and requested him to take the same on pledgefor a sum of Rs.1000/-. He also gave Rs.1,000/- on pledge. P.W.12would identify Ex.P.13 as the receipt given by him to P.W.11-Nithiyanantham after taking M.O.1(series) pair of ear stud onpledge. He would further depose that on seeing Ex.P.13-receiptproduced by the police he handed over M.O.1(series) pair of earstuds, which were pledged with him by P.W.1, to the police.19.P.W.16 is the successor of P.W.15, who had filed the chargesheet against the accused on 23.7.1992 under Section 302 & 404 IPCafter completing the investigation.20.When incriminating circumstances were put to the accused,the accused would deny his complicity with the crime. The learnedtrial judge, after scanning the evidence both oral and documentaryand after giving due deliberations to the submission made by thelearned counsel appearing for the accused as well as the AssistantPublic Prosecutor, has come to the conclusion that the accused isguilty under Section 304(i) & 404 IPC and accordingly convicted theaccused under Section 304(i) IPC and sentenced him to undergo 5years RI and slapped a fine of Rs.500/- with default sentence andalso convicted the accused under Section 404 IPC and sentenced toundergo one year RI and a fine of Rs.250/- with default sentence.Aggrieved by the findings of the learned trial judge the accusedhas preferred this appeal.21.Now the point for determination in this appeal is whetherthe conviction and sentence of the trial Court under Section 304(i)& 404 IPC is liable to be set aside for the reasons stated in thememorandum of appeal?22.The Point:- 22(a) Heard the learned counsel for theappellant Mr.C.Kanagaraj who would contend that in Ex.P.1-complaintthere is no whisper about the accused and according to the authorof Ex.P.1, the suspected accused is his (P.W.1's) own brotherMuniyan Chetti. But P.W.15 had foisted the case against theaccused, who is no way connected with this crime. P.W.1 is not aneye witness to the occurrence. In fact P.W.1 was not in thevillage at the time of occurrence. P.W.2 alone had seen the deadbody of the deceased in the night of 9/10.10.1991 i.e on the night https://hcservices.ecourts.gov.in/hcservices/ of one Wednesday. P.W.2 has seen the accused, who is none otherthan the brother's son of the deceased Papa on the previous nighti.e. On 8.10.1991, Tuesday. According to him, he also used tosleep in the house of the deceased papa since some repair work isbeing conducted in his house, and that on 8.10.1991 night he(P.W.2), the accused and the granddaughter and grandson of thedeceased stayed in the night in the house of the deceased Papa. On9.10.1991 Wednesday early morning, according to P.W.2, he alongwith the grandson & granddaughter of the deceased left the house ofthe deceased and at that time the accused and the deceased Papaalone were in the house. P.W.2 returned to the house of Papa onWednesday i.e. On 9.10.1991 at about 8.00 pm, but he could not seePapa in the house, thinking that she would have gone for some work,he laid down on the veranda of her house and woke up in themidnight due to thirst and he went inside the house to drink waterand saw the dead body of Papa in the kitchen and immediately he hadraised an alarm and the neighbours gathered and saw the deceasedlying dead with a cut injury on her neck. P.W.2 has categoricallystated in the evidence that the suspected accused Muniyan Chettiwas present at the time and he (P.W.2) only brought Muniyan Chettito the place of occurrence after informing about the lying down ofthe dead body of Papa in her house. So it is clear from theevidence of P.W.2 that even after the occurrence the suspectedaccused Muniyan Chetti was present in the locality and he wasbrought to the place of occurrence only by P.W.2. If the suspectedaccused Muniyan Chetti would have committed the murder thencertainly he would have absconded from the place of occurrence. Areading of Ex.P.1-complaint preferred by P.W.1, the brother of thesuspected accused Muniyan Chetti, is that Muniyan Chetti used toquarrel with the deceased, who is none other than his mother, formoney. In Ex.P.1 P.W.1 has stated that his mother Papa was having10 acres of land and some 3 years before the date of occurrence thedeceased Papa had partitioned in equal moieties the land in favourof P.W.1 and his brother Muniyan Chetti after reserving 2 acres ofland for her maintenance and that his (P.W.1's) brother MuniyanChetti had cultivated the land left apart for the maintenance ofthe deceased Papa for nearly three years but failed to give theincome derived out of that land. Further Ex.P.1 would read thatthe suspected accused Muniyan Chetti had borrowed Rs.5000/- fromhis mother, the deceased Papa, and refused to return the same andsome 1 ½ years prior to the date of occurrence the deceased Papahad sold her jewels and gave Rs.5000/- out of the sale proceeds ofher jewels to P.W.1 and the balance of Rs.3000/- was given to oneKarumalai for interest on a hand loan and this is the motivesuggested by P.W.1 in Ex.P.1 against the suspected accused MuniyanChetti, the brother of P.W.1, to murder his mother Papa. SinceP.W.1 is not an eye witness, the fact thar he had suspected hisbrother will not derive us to a conclusion that the offence shouldhave been committed only by Muniyan Chetti, the other son of thedeceased Papa. https://hcservices.ecourts.gov.in/hcservices/ 22(b) In this case the Investigating Officer has took lotof pain in fixing the real culprit. The learned counsel for theappellant/accused would contend that the accused also abscondedeven as per the evidence of P.W.15. P.W.15 went to the place ofoccurrence on 11.10.1991. He has examined the witnesses on thatday during his investigation. On 11.10.19991 admittedly Ex.P.1-complaint was preferred against Muniyan Chetti by his own brotherP.W.1. The suspected accused Muniyan Chetti was present even on9.10.1991 i.e., on the date of occurrence and he has been seen byP.W.2. After lodging of the complaint-Ex.P.1 on 11.10.1991, hehad absconded. But on 14.10.1991, it is the evidence of P.W.15,that he had examined Muniyan Chetti, the suspected accused. So on14.10.1991 Muniyan Chetti was physically present and was examinedby the police. In the investigation which took place between11.10.1991 and 14.10.1991 the Investigating Officer has fixed thereal accused viz. the present accused Chenrayan. P.W.15 hadarrested the accused on 25.10.1991 and has recorded the voluntaryconfession statement of the accused Chenrayan in the presence ofP.W.8-Rejenderan. The admissible portion of the confessionstatement of the accused before P.W.8 is that he used to visit thehouse of his aunt (father's sister) the deceased Papa very oftenand that on one occasion he had lent Rs.5000/- to the deceased Papaon her request and when he asked his aunt to return the said handloan, under some pretext or other she was postponing the paymentand even on the date of occurrence he went to the house of hisaunt, the deceased Papa, and demanded to return the money and sinceshe has informed him that she is not having any money, he had askedher to give her ear studs, so that he will pledge the same andraise the money. Since that request also was turned down by her,he got enraged and strangulated her with his hands and after shebecame unconscious and fell down on the ground, with the help of anaruvalmanai he cut her throat and also severed the ear lobes andremoved the ear studs and thereafter went to Pennagaram whereP.W.9's sisters was residing in order to sell the ear studs andwith the help of one Nithiyanantham he pledged the same withP.W.12. This part of the confession statement of the accused wascorroborated by the evidence of P.W.9 to P.W.12. 22(c) P.W.9 in her evidence has categorically stated that some9 years prior to her deposition before the Court the accused cameto her house and requested her to furnish the address of a knownperson to enable him to secure a job at Bangalore. P.W.10-Chinnakannu, who was arranged by P.W.9 to take the accused toBangalore and left the house of Nithiyanantham, has alsocorroborated the evidence of P.W.9. P.W.11 has also corroboratedthe evidence of P.W.10 to the effect that P.W.10 had brought theaccused to his house and only on his request the ear studs werepledged with P.W.12-Shanthilal for Rs.1000/-. P.W.11 has alsoidentified M.O.1 is the pair of ear studs produced by the accused https://hcservices.ecourts.gov.in/hcservices/ for pledging the same. P.W.12 has corroborated the evidence ofP.W.11 to the effect that P.W.11 along with another person came tohis pawn shop on 10.10.1991 and pledged M.O.1-ear studs forRs.1000/-. He has also identified M.O.1 as pair of ear studs andalso admitted that Ex.P.13 is the pawn receipt issued by him in thename of Nithiyanantham, since the person who accompaniedNithiyanantham is a stranger to him. 22(d) The learned counsel for the appellant would raise acontention that the accused has not committed the crime of murderbecause the other ornament viz. M.O.8-pair of nose screws, M.O.9-silver bangle, M.O.10-another silver bangle, and M.O.11-ring,M.O.12-toe ring, M.O.13-another toe ring and M.O.14-black beadswere found on the dead body of the deceased Papa. But the factremains that even according to the confession statement Ex.P.12 theaccused had demanded the deceased to return Rs.5000/- borrowed fromhim and after hearing that she had no cash on hand, he had asked togive only the ear studs to make good the amount of Rs.5000/- byselling the same. Except the nose screws M.O.8, the other M.Os.9 to14 are all silver articles. After committing the murder it isconvenient for the accused to sever the ear studs with the weaponviz. Aruvamanai (M.O.4) and removed the ear studs. The fact thatthe accused had not removed M.O.8 to M.O.14 will not in any wayderive us to come to the conclusion that the accused would not havecommitted the offence in lieu of the evidence in abundanceavailable against the accused apart from the confession statementand recovery of M.O.1 under Section 27 of the Evidence Act by theInvestigating Officer.22(d)The learned counsel for the appellant would furthercontend that the delay in filing the FIR is also not taken note ofby the learned trial Judge. From the evidence of P.W.2 it is seenthat the offence would have been committed in the midnight on9.10.1991. Admittedly the complainant viz. the eldest son of thedeceased Papa, was not in the house. He came to the village onlyon 10.10.1991. So he had preferred the complaint before the VAO-P.W.5 on 11.10.1991 since P.W.1 could not fix the accused, he onsuspicion has preferred Ex.P.1 against his own brother ManiayanChetti, since there is no clue available for him to fix theaccused. Only in the investigation it was revealed that theheinous crime was committed by the accused. The important factorthat the suspected accused has not absconded from the place ofoccurrence even on the date of occurrence till the complaint waspreferred againsthim on 11.10.19991 itself will go to show thatthe suspected accused had no hand in the crime.22(e)The learned counsel for the accused lastly would contendthat the sentence against the accused may be reduced. But thelearned trial jduge has convicted the accused only under Section304(i) & 404 IPC and awarded only 5 Years RI under Section 304(i) https://hcservices.ecourts.gov.in/hcservices/ IPC and one year RI under Section 404 IPC, besides fine, with adirection that the sentence shall run concurrently. Under suchcircumstances, I do not find any reason to interfere with thefindings of the learned trial Judge and the punishment awardedagainst the accused cannot be said to be disproportionate whencompared to the gravity of the heinous crime committed by him.Point is answered accordingly.23. In fine, the appeal fails and the same is dismissedconfirming the findings of the learned trial judge in S.C.No.201 of1998 on the file of the III Additional Sessions Judge, Krishnagiriat Dharmapuri. The learned trial judge is directed to secure theaccused and send him to the prison to serve the unexpended portionof the sentence.ssvSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo,1.The III Additional Sessions Judge, Krishnagiri at Dharmapuri.2.The Principal Sessions Judge, Krishnagiri at Dharmapuri.3.The Judicial Magistrate No.I, Salem.4.-do-The Chief Judicial Magistrate, Salem.5.The Public Prosecutor, High Court, Madras.6.The Inspector of Police, Pennagaram Police Station, Pennagaram Circle, Dharmapuri District.7.The Superintendent, Central Prision, Vellore.8. The District Collector, Dharmapuri https://hcservices.ecourts.gov.in/hcservices/

9. The Director General of Police, Chennai 4+ one cc to M/s. C. Kanagaraj Associates, sr no. 45209A.C.ARUMUGAPERUMAL ADITYAN, J. ssvCrl.A.No.788 of 2000 https://hcservices.ecourts.gov.in/hcservices/

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