S.Thiyagarajan v. State Rep by the Inspector of Police, Sirumugai Police Station Coimbatore district

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.8.2009CORAMTHE HONOURABLE MR. JUSTICE C.NAGAPPANAND THE HONOURABLE MR. JUSTICE M.JEYAPAULCrl.A.No. 76 of 2009 S.Thiyagarajan .. Appellant/Accused Vs.StateRep by the Inspector of Police, Sirumugai Police Station Coimbatore district. .. Respondent/Complainant[Crime No.470 of 2007]Prayer : Appeal against the Judgment, dated 27.11.2008, passed inS.C.No. 101 of 2008 on the file of the Principal Sessions Judge, Coimbatore. For Appellant :: Mr. Su. SrinivasanFor Respondent :: Mr. Hassan Mohamed Jinnah Addl.P.P. J U D G M E N T(The Judgment of the Court was made by M.JEYAPAUL, J.)The sole accused was convicted for the offence under Section 302 IPC and sentenced to undergo Life Imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo one year RigorousImprisonment and was also convicted for the offence under Section 506(ii) IPC (2 Counts) and sentenced to undergo one year RigorousImprisonment for each count and the sentences were ordered to run concurrently. Aggrieved by the aforesaid verdict of the trial Court, the present criminal appeal has been preferred by accusedThiyagarajan. https://hcservices.ecourts.gov.in/hcservices/

On the side of the prosecution, as many as 12witnesses were examined and 21 documents and 13 material objects were marked. Neither oral nor documentary evidence was let in on the side of defence.

The sum and substance of the case of the prosecution, as unfolded by the witnesses, reads as follows:- The deceased Bagkiam is none other than the mother of P.W.1Maheswari. P.W.1 Maheswari was given in marriage to accusedThiyagarajan. The deceased Bagkiam is not only the mother-in-law, but, also the own sister of accused Thiyagarajan. AccusedThiyagarajan and P.W.1 Maheswari were blessed with P.W.2 Gayathri.P.W.3 Manickam and P.W.4 Murugan are the residents of Chennampalayam. Accused Thiyagarajan, the deceased Bagkiam and P.W.1Maheswari along with their daughter P.W.2 Gayathri were also residing in the same village. On 21.11.2007 at about 11.00 p.m., when P.W.3 Manickam andP.W.4 Murugan were chatting in front of Mariamman Temple, located in the said village, they heard a commotion in the house of Bagkiam, which was located opposite the temple. Within about 10 minutes, they found P.W.1 Maheswari, P.W.2 Gayathri and accused Thiyagarajanemerged out of the house of Bagkiam.

Accused Thiyagarajan came out with a total denial of his involvement in the crime spoken to by the witnesses examined on the side of prosecution during the course of the proceedings under Section 313 CrPC conducted by the trial Court.

The trial Court having heavily relied upon the testimonies of P.W.3 Manickam and P.W.4 Murugan, the arrest of accused Thiyagarajan; confession which led to the recovery of material objects; Chemical Examiner's Report as well as Serologist'sReports available on record and the medical evidence produced in this case, rendered a verdict of conviction and sentence against the accused as stated supra.

As per the case of the prosecution, P.W.1 Maheswariset the law in motion by lodging Ex.P18 Complaint. The InvestigatingAgency had, in fact, taken steps to record the statements of P.W.1Maheswari, P.W.2 Gayathri, P.W.3 Manickam and P.W.4 Murugan under Section 164 CrPC, but, quite unfortunately, P.W.1 Maheswari andP.W.2 Gayathri turned hostile and as a result of which, the prosecution was virtually put on back foot. We will have to find out whether the other materials produced by the prosecuting agency would establish the case of murder and the criminal intimidation charged as against accused Thiyagarajan beyond reasonable doubt.

P.W.3 Manickam and P.W.4 Murugan are admittedly the residents of Chennampalayam village. It is their categorical version that they were at the Mariamman Temple at the time when the occurrence unfolded. They have come out with a natural version that they had not actually witnessed the occurrence, but, of course, they heard a commotion for about 10 long minutes in the house of the deceased Bagkiam. It is their version that after about 10 minutes commotion in the house of Bagkiam, P.W.1 Maheswari and P.W.2Gayathri came out of the house of Bagkiam along with accusedThiyagarajan, who was found armed with blood stained weapon. Theywould also depose that when they approached, they were threatened with dire consequences, by accused Thiyagarajan. It is found that no enmity was suggested to P.W.3 Manickam and P.W.4 Murugan. Theirnatural version inspires confidence of this Court.

The independent witness, P.W.6 V.A.O. Ravichandran, has spoken to the arrest of accused Thiyagarajan, confession recorded from him and the recovery of the material objects (M.Os.5 to 7) underEx.P7 Seizure Mahazar.

Ex.P12 Chemical Examination Report and Exs.P13 and P14Serology Reports would establish that M.O.3 Grinder stone, M.O.4 Mat,M.O.6 Trousers and M.O.7 Shirt - recovered from accused Thiyagarajan, and M.O.5 Knife recovered at the instance of accused Thiyagarajan, and M.O.8 Blouse pieces, M.O.9 Saree, M.O.10 Shirt and M.O.11Brassiere pieces were all found with human blood of 'B' group. Noexplanation is forth coming from the accused Thiyagarajan as to how https://hcservices.ecourts.gov.in/hcservices/ he sustained blood stains of 'B' group in the dresses recovered from him. Exs.P13 and P14 Serology Reports also connect the accusedThiyagarajan to the crime of murder charged as against him.

On a perusal of the evidence of P.W.10 Dr.Jeyasingh, in the back ground of Ex.P16 Post-mortem Certificate, it is found that accused Thiyagarajan had received as many as 19 lethal injuries. The doctor was affirmative that the deceased appeared to have died of shock and haemorrhage due to multiple injuries sustained by her about12 to 16 hours prior to autopsy. He has also deposed to the fact that the stab injuries found on the body of the victim could have been caused with the weapon like M.O.5 Knife and the injuries found on the head would have been caused by dropping M.O.3 Grinder stone.

The learned counsel appearing for the appellant/accusedwould contend that the trial Court did not consider the version ofP.W.1 Maheswari that she came to the occurrence village only at 6.00a.m. on 22.11.2007. Firstly, it is found that P.W.1 Maheswari has completely turned hostile to the case of the prosecution. She also had never bothered about the statement given before P.W.7 JudicialMagistrate Balu and has come out with her own story before the trialCourt. In such circumstances, it is totally unsafe to rely upon the version of P.W.1 Maheswari that she came to the occurrence village only at about 6.00 a.m. on 22.11.2007. P.W.12 Inspector Pandianwould state that Ex.P18 Complaint was lodged by P.W.1 Maheswari at00.30 hrs on 22.11.2007 and on the basis of the complaint, FirstInformation Report was prepared and the same was despatched to the learned Judicial Magistrate. Therefore, we are not inclined to accept the version of P.W.1 Maheswari that she was not present at the time when the occurrence took place.

The learned counsel appearing for the appellant would submit that the First Information Report reached the learned JudicialMagistrate only at 9.00 a.m. on 22.11.2007, but, P.W.8Sureshkumar, Grade I Constable attached to Sirumugai Police Station, has stated in his evidence that at about 1.00 a.m. on 22.11.2007 he received the First Information Report from P.W.12 Inspector Pandianand handed over the same to the learned Judicial Magistrate within one hour. Therefore, the learned counsel would submit that there isample delay in despatching the First Information Report to the learned Judicial Magistrate.

It is found that the occurrence had taken place at about 11.00 p.m. on 21.11.2007 in a village and not in a town where the Court of the learned Judicial Magistrate is located. ThoughP.W.8 Sureshkumar has stated that he entrusted the First InformationReport at about 2.00 a.m. on 22.11.2007 itself, the records would disclose that the First Information Report reached the Court at9.00 a.m. on 22.11.2007. Considering the time at which the occurrence had taken place and the distance between the Court and the Police Station, the Court finds that the delay is not at all inordinate. https://hcservices.ecourts.gov.in/hcservices/

The learned counsel appearing for the appellant would further submit that P.W.3 Manickam has come out with a version that he chatted with P.W.4 Murugan sitting in Mariamman Temple, but,P.W.4 Murugan has come out with a contradictory version that they were lying in front of the said Temple at the time of occurrence. The learned Additional Public Prosecutor would submit that such acontradiction is not so material to tilt the case of the prosecution.

The evidence of P.W.3 Manickam and P.W.4 Muruganwould go to show that they were at the portals of Mariamman Templeat the time when the occurrence took place. Whether they heard the commotion while in a sitting posture or lying posture, is found to be totally immaterial.

It is also pointed out by the learned counsel appearing for the appellant that P.W.3 Manickam would depose that the commotion went on for about 10 minutes and thereafter, P.W.1Maheswari, P.W.2 Gayathri and accused Thiyagarajan came out of the house of Bagkiam; whereas P.W.4 Murugan would state that there was some commotion in the house of Bagkiam and immediately thereafter,P.W.1 Maheswari, P.W.2 Gayathri and accused Thiyagarajan came out of the house of Bagkiam. This also is not a very material contradiction. Both of them have clearly spoken to the fact that there was commotion before P.W.1 Maheswari, P.W.2 Gayathri and accused Thiyagarajan came out of the house of Bagkiam.

The learned counsel appearing for the appellant would submit that P.W.3 Manickam has deposed that when P.W.4 Muruganand himself proceeded to the house of the victim on hearing the commotion, there was no crowd gathered over there; whereas P.W.4Murugan has come out with a contradictory version with respect to the crowd collected over there.

Both of them would state that there was a commotion and subsequently, there was a crowd collected over there. Of course,P.W.4 Murugan would state that when they proceeded to the scene of occurrence on hearing the commotion, there was a crowd; whereas P.W.3Manickam would state that such a crowd was not there at the time when they approached the scene of crime. This again is not found to be very material to tilt the case of the prosecution. Such minor contradictions will not go to the root of the case.

Of course, P.W.3 Manickam would depose before the Court that P.W.4 Murugan and himself passed on information to the police, but, the Investigating Officer would speak to the fact that it was only P.W.1 Maheswari, who set the law in motion. Quite unfortunately, the author of Ex.P18 Complaint has failed to support the case of the prosecution in spite of her statement under Section 164 CrPC, which was recorded by the learned JudicialMagistrate. The materials on record would show that the FirstInformation Report was registered at 00.30 hrs. on 22.11.2007 itself. No wonder, the Investigating Officer had descended on the scene of occurrence within few hours from the time of registration of the case https://hcservices.ecourts.gov.in/hcservices/ by him. In the above facts and circumstances of the case, the statement of P.W.3 Manickam that P.W.4 Murugan and himself passed on the message to the police does not loom large. Further, there isno inordinate delay in despatching the First Information Report to the learned Judicial Magistrate. There was virtually no gap for the investigating agency to rope in an innocent person in the case of murder.

Coming to the recovery part of the prosecution, the learned counsel appearing for the appellant would submit that M.O.5Knife was allegedly recovered under the horseradish tree. It is his submission that the recovery under Section 27 of the Indian EvidenceAct cannot be given much credence as the recovery was effected in an open place. Further, he would submit that the recovery of the apparels from accused Thiyagarajan is also found to be doubtful.

The learned Additional Public Prosecutor would submit that an independent witness, P.W.6 Ravichandran, has spoken to the arrest of accused Thiyagarajan and confession given by him and the recovery made at his instance. It is his further submission that only in a flower garden owned by a private person, the weapon of offence was recovered.

If recovery has been made underneath a tree located ona road-side, of course, such a recovery may not inspire confidence. But, the prosecution has come out with a case that underneath horseradish tree located in the midst of the flower garden, M.O.5Knife was recovered. Therefore, such a location cannot be said to bean open place accessible to the public. For reasons best known to accused Thiyagarajan, he was spotted with the Blood stained clothes. Quite probably apprehending arrest, he might have loitered with the blood stained clothes till he was arrested. But the arrest of the accused and the recovery of the apparels from his person were spoken to by the independent witness, which inspires confidence.

Lastly it is submitted by the learned counsel appearing for the appellant that P.W.1 Maheswari being the daughter of the deceased would not have left the scene of occurrence leaving the dead body along with her husband. Therefore, the evidence of P.W.3Manickam and P.W.4 Murugan that they also spotted P.W.1 Maheswariat the scene of occurrence is found to be quite doubtful, he contends.

P.W.1 Maheswari had emerged out of the house of the victim not only with her husband, but also with her lovely daughterP.W.2 Gayathri. Without much delay, it appears, on the complaint given by P.W.1 Maheswari, First Information Report was despatched to the learned Judicial Magistrate. It is not as if P.W.1 Maheswariaccompanied a stranger leaving behind the dead body of his mother. She might have been encountered with emotional conflict arisen out of the involvement of her husband in the crime on the one side and the perpetration of crime against her mother on the other side. Wecannot determine as to how an individual in such a circumstance would behave. At any rate, such a behavioural pattern exhibited by P.W.1 https://hcservices.ecourts.gov.in/hcservices/ Maheswari does not create a dent in the case of the prosecution.

We find, there is clinching material as detailed above to prove the guilt of the accused. The trial Court has rightly returned a verdict of conviction and sentence against accusedThiyagarajan as stated supra and there is no warrant for interference with the well merited judgment of the trial Court. Therefore, the conviction recorded under Sections 302 IPC and 506 (ii) IPC (2counts) and the sentence recorded thereunder by the trial Court are confirmed and the appeal is dismissed. pbSd/Asst. Registrar/true copy/Sub Asst. RegistrarTo1. The Prl. District & Sessions Judge, Coimbatore.2. The Inspector of Police, Sirumugai Police Station, Coimbatore. 3. The Superintendent of Prison, Central Prison, Coimbatore.4. The District Collector, Coimbatore. 5. The Director General of Police Chennai.46. The Judicial Magistrate Mettupalayam.7. -do- through the Chief Judicial Magistrate, Coimbatore.8. The Section Officer, Criminal Section, High Court, Madras 104.9. The Public Prosecutor, High Court, Madras. + One CC to Mr. Su. Srinivasan Advocate (SR.40820)Crl.A.No. 76 of 2009KS (CO)VC (07.09.2009)