Nallusamy @ Padumaiselvan v. State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16-12-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCRIMINAL APPEAL No.671 of 2009Nallusamy @ Padumaiselvan..Appellant/Accused ..vs..State of Tamilnadu,rep.by Inspector of Police,Kitchipalayam Police Station,Salem.(Crime No.1017 of 2008)..Respondent/Complainant Criminal Appeal filed under Section 374(2) of CriminalProcedure Code, against the judgment of the learned AdditionalDistrict Sessions Judge, Fast Track Court-I, Salem, made inS.C.No.152 of 2009, dated 30.09.2009.For Appellant : Mr.S.KarthikeyanFor Respondent : Mr.Babu Muthu Meeran, A.P.P.,JUDGMENT(Judgment of the court was delivered by M.CHOCKALINGAM, J.)Challenge is made to a judgment of the Additional DistrictSessions Division, Fast Track Court-I, Salem, made in S.C.No.152 of2009, whereby the sole accused stood charged, tried and found guiltyas follows:AccusedChargesFindingsSentenceAccused S.457 IPCGuiltyFive years R.I. andto pay a fine ofRs.50,000/-, i/d toundergo five monthsR.I. https://hcservices.ecourts.gov.in/hcservices/ AccusedChargesFindingsSentenceAccusedS.380 IPCGuiltySeven years R.I. andto pay a fine ofRs.70,000/-, i/d toundergo seven monthsR.I. Accused S.302 IPCGuiltyLife imprisonmentand to pay a fine ofRs.1,00,000/- i/d toundergo one year R.I.The sentences imposed on the accused were ordered to runconcurrently. 2. Short facts necessary for the disposal of the appeal can bestated as follows:(a) P.W.1 is the son and P.W.2 is the daughter of the deceasedSanthi @ Selvamary. The deceased was the drama actress and shestopped acting before five years when her husband died. P.W.1, duringthe relevant time, was doing the carpentary work at VivekanandaCollege in Tiruchengode. Both daughters of the deceased were actingin dramas. During the relevant time, i.e.on 27.05.2008, one of thedaughters of the deceased, viz., Valarmathi, went to participate in adrama at Vedasandhur while, another daughter, viz., Sathya, who wasexamiend as P.W.2, went to Andhiyur for acting in a drama. P.W.1accompanied P.W.2 at the night hours of 27.05.2008, leaving themother as the only inhabitant in the house. On the next day morningat about 7.00 AM, they returned and found the door closed. Theyknocked the door and they were under the impression that their motherwent to buy milk. When they tried to contact her, they found that hermobile phone was switched off. Then they broke open the lock and gotinside, where they found the dead body of their mother with bleedinginjuries. Immediately, P.W.1 proceeded to the respondent PoliceStation and gave Ex.P-1 complaint. (b) On the strength of which, a case came to be registered byP.W.10, the Sub-Inspector of Police, Kitchipalayam, in Crime No.1017of 2008 under section 302 IPC. Ex.P-8 is the first information reportand the same was despatched to the Court.(c) P.W.15, the Inspector of Police took up investigation,proceeded to the spot, prepared an observation mahazar Ex. P-2 andrough sketch Ex.P-21 and he conducted inquest on the dead body ofSanthi in the presence of panchayatdars and witnesses and preparedEx.P-22 inquest report. A finger print expert was also called uponand he did not find any finger print available. Then, P.W.15 causedthe photographs to be taken through a photographer and the photos andnegatives are marked as M.O.25 series. Thereafter, a requisition was https://hcservices.ecourts.gov.in/hcservices/ forwarded to the Government Hospital, Salem for the conduct ofautopsy on the dead body. (d) P.W.14, doctor attached to the Government MohanKumaramangalam Medical College Hospital, conducted autopsy on thedead body and gave the post mortem certificate, where he opined thatthe deceased would appear to have died 24-30 hours prior to autopsydue to the head injuries. The post mortem certificate is marked asEx.P-20.(e) Pending investigation, on 06.06.2008, the accused wasarrested and he came forward to give a confessional statementvoluntarily and the same was recorded in the presence of witnessesand the admissible part is marked as Ex.P-4 and pursuant to which,he produced M.Os.2 to 19, 23 and 24, which are the jewels, cash,petticoat and a suitcase and the same were recovered under the coverof mahazar Ex. P-5 in the presence of witnesses. Further, the accusedtook the police party to a vacant site and produced M.Os.20 and 21,'Kuthu vilakku' and 'Koduval' from the bushes nearby and they wererecovered under a cover of mahazar Ex.P-6 in the presence ofwitnesses and thereafter, the accused was sent for judicial remand.All the M.Os.were subjected to chemical analysis and after gettingEx.P-15 chemical analysis report and connected documents and oncompletion of investigation, P.W.15 filed the final report againstthe accused under sections 302, 457 and 380 I.P.C.(f) The case was committed to the Court of Additional DistrictSessions Division, Fast Track Court-I, Salem and necessary chargeswere framed. In order to substantiate the charges, the prosecutionexamined 15 witnesses and also relied on 26 exhibits and 25 materialobjects. On completion of the evidence on the side of theprosecution, the accused was questioned under Sec.313 of Cr.P.C. asto the incriminating circumstances found against him in the evidenceof prosecution witnesses. No defence witness was examined. The trialCourt heard the arguments advanced and scrutinized the materials. Ondoing so, the trial Judge took the view that the prosecution hasproved the case beyond the reasonable doubt and found the appellantguilty and awarded the punishments as referred to above, which is thesubject matter of challenge before this Court. 3. Advancing the arguments on behalf of the appellant/accused,the learned counsel would submit that according to the prosecution,the occurrence had taken place on 27.05.2008/28.05.2008 at about01.30 AM; that the prosecution had no direct evidence to offer; thatP.W.6 was examined by P.W.15; according to him, at the early hours of28.05.2008 he found a person coming out of the house of the deceased,but he could not identify whether that person was the accused beforethe Court and hence, his evidence was not favourable to theprosecution case; that P.Ws.1 and 2 categorically deposed that theywere absent during the relevant time and they came to the house on https://hcservices.ecourts.gov.in/hcservices/ the next day morning at about 7.30 AM; that when they went inside thehouse, they found the dead body of their mother; that theyimmediately gave the complaint Ex.P-1, but they have not spoken aboutthe missing of jewels or any cash and they went to the police stationon the next day and informed about the missing of jewels; that had itbeen true that they have actually seen the dead body and the bureauwas actually found broken, they would have noticed immediately andhence, it will be indicative of the fact that the alleged theft ofjewels and cash is only an afterthought and the same does not belongto them; that in so far as the jewels of the deceased are concerned,they alleged to have been stolen by the accused, but P.Ws.1 and 2could not have identified the jewels before the Court and hence theevidence of P.Ws.1 and 2 ought to have been disbelieved by the Court;that the jewels of the deceased were not at all stolen and asuggestion has also been made before the Investigating Officer thatthe jewels were belonged to the accused appellant and so long as theidentity of the jewels was not proved, the appellant is entitled forthe benefit of presumption under section 114 of the Evidence Act. 4. Added further the learned counsel that as per theprosecution case, the death had occurred at about 1.30 AM, but itcannot be correct or true, for the simple reason, that the postmortem doctor, who was examined as P.W.14 before the Court and alsothe contents of the post mortem certificate, has categorically statedthat the death would have occurred 24 to 36 hours prior to autopsy;that the autopsy was actually commenced at 3.15 PM on 28.05.2008; ifto be so, the death should have been caused prior to 3.00 PM on27.05.2008 and thus, all these things clearly would be indicative ofthe fact that the time of death, as put forth by the prosecution, wasalso not correct and hence, it was not the accused who has involvedin the offence of murder. Added further the learned counsel that theoccurrence had taken place in the house of the deceased atKitchipalayam, which is within the limits of the respondent policestation, and the investigator would claim that the accused was foundalong with a suit case containing the jewels and cash; that had itbeen true that the accused had actually stolen the jewels on27.05.2008/28.05.2008 night hours, there was no need for him to waitfor a week till 06.06.2008; that this would clearly indicate that thealleged recovery of jewels and cash is nothing but false in order toimplicate the accused with the offences.5. The learned counsel would further submit that so far as therecovery of M.Os.20 and 21, namely 'Kuthu Vilakku' and 'Koduval' isconcerned, it is alleged that they have been found in an open place,which was nothing but false and it did not help the prosecution caseand all the so-called circumstances relied on by the prosecutionwere put together, it would show that they were not proved toindicate the culpability of the accused/appellant and hence, he isentitled for acquittal in the hands of the court and the judgment ofthe trial court has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/

6. The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.7. It is not in controversy that one Santhi, the mother ofP.Ws.1 and 2 was found dead on the early morning hours of 28.06.2008and P.W.1 has given Ex.P-1 complaint and pursuant to the caseregistered under section 174 Cr.P.C.for suspicious death by P.W.10,the Sub-Inspector of Police, the investigation had been taken up byP.W.15, the Inspector of Police and after the inquest report wasprepared, the dead body was subjected to post-mortem by P.W.14doctor, who has given his opinion, as a witness before the Court andthrough the contents of the post-mortem certificate Ex.P-20 that shedied of shock and haemorrhage due to head injuries. Thus, the causeof death, as put forth by the prosecution, was never challengedbefore the trial court or before this Court and hence, no impedimentis felt in recording that Santhi died out of homicidal violence.8. In order to substantiate the accusations, namely, criminaltrespass into the house and robbery of jewels of the deceased aftercausing her death, made against the appellant, the prosecution has nodirect evidence to offer, but it relied upon the circumstantialevidence. The Court in mindful of caution by the settled principlesof law and the decisions rendered by the Apex Court that in a givencase like this, where the prosecution rests on the circumstantialevidence, the prosecution must place and prove all the necessarycircumstances, which would constitute a complete chain without a snapand pointing to the hypothesis that except the accused, no one hadcommitted the offence. The said principle of law if applied to thepresent case, the Court is satisfied that the prosecution has provedthe case beyond reasonable doubt. The occurrence had taken place inthe midnight hours of 27.05.2008. P.Ws.1 and 2 have categoricallydeposed that they went to the nearby place to participate in a dramaand they left the deceased mother alone in the house. On the next daymorning, they came back and found only the dead body of their mother.Immediately, P.W.1 gave the complaint Ex.P-1 to P.W.10. A reading ofEx.P-1 would clearly indicate that on seeing the dead body,immediately P.W.1 rushed to the respondent police station to informthe same and pursuant to which, investigation was taken up. Eventhen, they have not entertained any suspicion against the appellantor mentioned the name of the appellant in the complaint. Now, it ispertinent to point out that P.Ws.1 and 2 have categorically deposedthat when they were cleaning their house after the burial of theirmother, they found the bureau actually kept unlocked and thereafter,they opened the same; the jewels and cash found missing; necessity https://hcservices.ecourts.gov.in/hcservices/ arose for them to inform; they went to the police station on the nextday morning i.e.on 29.05.2008 and brought to the notice of this factto P.W.15. This fact was not only submitted by P.Ws.1 and 2 but alsoby the investigator. Hence, it can be inferable that if P.Ws.1 and 2found that the jewels were also stolen, immediately it could havebeen brought to the notice of P.W.15. Since they noticed only on thenext day morning as to the missing of theft of jewels, it cannot besaid that they came with falsity. Assuming for a moment they hadactually seen both jewels and cash were missing on the date ofoccurrence, there could not be any impediment for them to write thesaid fact in Ex.P-1 complaint, but it was not so.9. Further, in the instant case, P.W.12, who is the wife of thebrother of the husband of the deceased, has been examined. Shecategorically deposed that on the earlier occasions, the deceasedtold her that she has illicit intimacy with the appellant, whovisited her frequently and it should not be brought to the knowledgeof the children and others and if it comes to light, her childrenwould not get married. True, P.W.12 was examined on 12.06.2008. Itmust be remembered that P.W.12 is the close relative of the deceased,that too, she knew the accused very well. At this juncture, a closerelative of the same family would not have come forward with suchfalse allegation, which would also be put a stigma to the family.Under such circumstances, there is no hesitation in coming to theconclusion that the evidence of P.W.12 could be accepted by the Court.10. Further, the circumstance which went against theappellant/accused and which is in favour of the prosecution, is therecovery of jewels and cash M.Os.2 to 19 from the accused/appellanton 06.06.2008. P.W.15, the investigator has deposed that the accusedalong with a suit case was standing in a doubtful manner in a busstand and on seeing the police personnel, he attempted to flee, buthe was called and on interrogation, he confessed to have committedthe offences and when the suitcase was opened, they found the jewelsand cash, which were recovered under a cover of mahazar Ex.P-5. Sofar as the jewels are concerned, a comment was made by the learnedcounsel that P.Ws.1 and 2 have not identified the jewels before theCourt and hence, they do not belong to them and the charge againstthe appellant in that regard has not been proved. It remains to benoted that even at the time of cross examination, P.Ws.1 and 2 havecategorically stated that when they were informed about the recoveryof jewels, they went to the police station and found all the jewelsand cash and the accused was also present at that time and theyidentified the jewels and cash as M.Os.2 to 19 before the court.Under such circumstance, what was now put forth before the Court,cannot be countenanced and this was also a new plea. In this regard,not even a suggestion was made on behalf of the appellant to P.W.15 https://hcservices.ecourts.gov.in/hcservices/ that the jewels were belonged to the accused. In the instant case,once the occurrence has taken place on 27.05.2008 midnight and thejewels of the deceased and cash were found in possession of theaccused on 06.06.2008 within a short span of time, it is for theaccused to explain how he came to be with the custody of the jewelsand cash, which belonged to the deceased, but no explanation wasforthcoming from him. Thus, it is easily inferable by way ofpresumption under section 114 of the Evidence Act that it was he, whohas stolen or who is the receiver of the stolen properties. Thecircumstances which were attendant when put together would clearlyindicate that it was the accused who has stolen the jewels.11. Further, the learned counsel would submit that in theinstant case, the post mortem doctor has given an opinion that thedeath would have occurred 24 to 36 hours prior to autopsy and theautopsy has taken place at 3.15 PM on 28.05.2008 and hence, the deathcould have occurred before the afternoon of 27.05.2008 and as such,the case of the prosecution that the death had occurred at 1.30 AMcannot be correct. At this juncture, now the doctor's opinion as tothe time of death cannot be a conclusive one and it can be taken aseither 24 hours or 36 hours. Now, in the instant case, P.Ws.1 and 2categorically deposed that on 27.05.2008 when they went to the nearbyplace for drama, they left their mother and at about 10.00 PM, theneighbour P.W.3 went to the house of P.W.1 and the doors foundclosed and when he called, it was attended by the deceased and shereplied that the daughters have gone to the nearby place for dramaand he could come and meet P.W.1 on the next day morning hours. Fromthe evidence of P.W.3, it is to be noted that the deceased was aliveat about 10.00 PM on 27.05.2008 and thus, all would go to show thatonce the direct evidence of P.W.3 is available, who met the deceasedlady at about 10.00 PM, the medical opinion canvassed, cannot begiven much importance. In the considered opinion of the Court, thecircumstances placed would be pointing to the hypothesis that exceptthe accused, no one had committed the offences. Hence, the trialcourt was perfect in recording the finding that the appellant wasguilty under sections 457, 380 and 302 IPC and awarding of lifeimprisonment as referred to above, which, in the considered opinionof the Court, rightly too and hence, the judgment of the trial courtdoes not require any disturbance either factually or legally in thehands of the Court.12. At this juncture, the learned counsel for theappellant/accused would contend that the fine amounts and the defaultsentences under three charges imposed by the trial court areexcessive and hence, it has got to be reduced. Taking intoconsideration the nature of the offences committed by him, this Courtis of the considered opinion that since the trial court has ordered https://hcservices.ecourts.gov.in/hcservices/ that the default sentences should run concurrently along with thelife sentence, there is nothing to disturb the finding of the trialcourt. Hence, this contention also was rejected.Accordingly, the appeal fails and is dismissed. Sd/Asst.Registrar/true copy/ Sub Asst.RegistrarglTo1. The Additional District Sessions Judge, Fast Track Court No.I, Salem.2. The Inspector of Police, Kitchipalayam Police Station, Salem.3. The Public Prosecutor High Court, Madras.4. The Superintendent, Central Prison, Coimbatore.+ 1 cc to Mr.S.Karthikeyan, Advocate, SR 70102Judgment in Crl.A.No.671 of 2009AKR (CO)RH (4.1.10)