Murali v. State

Charges under Sections 120-B, 380 and 302 r/w 34IPC were framed against A1 Murali, A2 Sekar alias Rajasekar and A3Sasi alias Sasikumar. The learned Additional Sessions Judge foundA1 to A3 guilty of the charges and convicted and sentenced them to undergo three years Rigorous Imprisonment each and to pay afine of Rs.1000/- each, in default, to undergo Simple Imprisonmentfor six months each for the charge under Section 120-B IPC;convicted and sentenced them to undergo seven years RigorousImprisonment each and to pay a fine of Rs.5000/- each, in default, to undergo Simple Imprisonment for two years each for the charge under Section 380 IPC and convicted and sentenced them to undergo Life Imprisonment each and to pay a fine of Rs.5000/-each, in default, to undergo Simple Imprisonment for two years each for the charge under Section 302 r/w 34 IPC and ordered the sentences to run concurrently.

To prove its case, the prosecution examined P.Ws.1 to18 and marked Exs.P1 to P33 and M.Os.1 to 19.

The case of the prosecution, as could be discerned from oral and documentary evidence, can be briefly summarised as follows. P.W.1 Jayalakshmi is the wife of deceased Sriramulu andPW.2 Sridevi is their daughter. Sriramulu was employed as Managerin MCC Bank at Vellore and retired and he was residing alone in Meenu Flats, Perambur and was doing money lending business. PW.2Sridevi was living with her family in Akash Flats at Perambur.P.W.1 Jayalakshmi was residing with her daughter PW.2 Sridevi in Akash Flats and Sriramulu used to come daily to their house and take food therein. On 12.12.2006 in the afternoon, Sriramulu came to the house of PW.2 Sridevi and took lunch and went away. At about 4.30 pm, he called PW.2 Sridevi over phone and told her that he is going out for pooja and thereafter he did not communicate. PW.6 Ganesan took Gas Cylinder to Sriramulu's house in MeenuFlats at 4 pm on 13.12.2006 and rang the calling bell and also called, but there was no response.

The incriminating circumstances appearing against the accused were put to them during their examination under Section 313 CrPC and they denied complicity. D.Ws.1 and 2 were examined and Exs.D1 and D2 were marked on their side.

The Trial Court held that the charges against the accused are proved and sentenced them as stated earlier. Challenging the conviction and sentence, they have preferred the present appeal.

Sriramulu died of homicidal violence is established by the testimony of Post-mortem doctor. P.W.8 Dr.Udayasankar has testified that he conducted post-mortem on the body at 3 pm on https://hcservices.ecourts.gov.in/hcservices/

14.12.2006 and found ligature abrasion over the neck measuring 28x 1 cm above the thyroid cartilage and incised cut injury in the anterior aspect of trachea 11 x 4 cms. He has expressed opinion that the deceased died on account of cumulative effect of Asphyxiadue to ligature compression, cut throat injury, haemorrhage and shock. Ex.P8 is the Post-mortem Certificate issued by him. Accepting the medical testimony, it is clear that Sriramulu died of injuries sustained during the occurrence.

The prosecution case is that all the accused conspired and in pursuance of common intention they committed the murder of Sriramulu and committed theft of the articles worth aboutRs.1,50,000/- in his house. Nobody witnessed the occurrence and the case is based on circumstantial evidence.

The only circumstance let in and relied on by the prosecution is the independent disclosure statements given by the accused leading to recovery of M.Os.1 to 10 Jewels,M.O.15 Cellphone and M.O.19 Knife.

Mr.Shanmugavelayudam, learned Senior Counsel appearing for the appellants 1 and 2, submits that the prosecution has not proved that the accused gave information which led to recovery of material objects and there are no other evidence available for implicating the accused in the offence of murder and the prosecution also has not established the charge of criminal conspiracy as well as the charge of theft of articles and the conviction and sentence imposed on the accused are liable to be set aside. The learned counsel for the third appellant submits that the onus is on the prosecution to prove that the chain of evidence is complete and the prosecution has failed to do so and the charges are not established.

Per contra, the learned Additional Public Prosecutorsubmits that the Investigation Officer has spoken to about the information given by the accused which led to recovery of material objects and the prosecution has established the recovery of jewels, cellphone of the deceased and the conclusion of the Trial Courtis sustainable.

Ex.P1 is the Complaint given by PW.1 Jayalakshmistating that she found the body of her husband Sriramulu in sofa with hands and legs tied with nylon rope and the neck encircled and tied with cloth and the bracelet, gold chain, rings, cellphone and citizen watch usually worn by her husband were missing from the body and the bureaus were found open. The case came to be registered onEx.P1 Complaint and the investigation was in progress.

On 18.12.2006, PW.1 Jayalakshmi gave Ex.P2 intimation stating that after their return from the native place burying the https://hcservices.ecourts.gov.in/hcservices/ body, they checked the articles in the bureaus in the occurrence house and found gold chain with black bead, two gold bangles, bracelet, two ladies rings and cellphone stolen from the bureau. The Investigation Officer received the intimation and continued the investigation.

The learned Senior Counsel appearing for the appellants submits that Ex.P2 intimation looks artificial and had come into being six days after the occurrence alleging missing of certain other articles belonging to the family of the deceased and no reliance can be placed on it. The learned Additional PublicProsecutor submits that the family members went to their native place for burial of the body and after returning to Chennai, they happened to verify the belongings in the bureau and that led toEx.P2 intimation.

Admittedly, the deceased Sriramulu was living alone in his flat and there were bureaus in his bedroom. PW.2 Sridevi on receiving the phone message from PW.3 Vathsala rushed to the occurrence house and noticed the missing of jewels worn by her father from the body. It is the further testimony of PW.2 Sridevithat she also noticed that bureaus were opened and the clothes were strewn in it. Having noticed the missing of jewels from the body of the deceased, she ought to have verified the articles in the bureaus which were found open. In Ex.P1 Complaint, PW.1 Jayalakshmi has only mentioned the missing of jewels worn by the deceased. If at all there are other family jewels kept and missing from the bureaus, it ought to have been mentioned in the complaint. That was not mentioned. The testimonies of P.Ws.1 and 2 that after six days of the occurrence they verified the articles of the bureaus and found the missing of family jewels appear to be artificial and much reliance cannot be placed on it.

M.O.1 Gold Bracelet and M.O.10 Citizen Wrist Watch were identified by P.Ws.1 and 2 as worn by the deceased Sriramulu. Theprosecution case is that A1 Murali entrusted M.Os.1 and 10articles with his friend Mahadevan. The said Mahadevan has been examined as PW.13 and he has testified that his signature was obtained in Police Station in blank white paper. He was declared as hostile by the prosecution. Both the above articles are said to have been recovered from PW.13 Mahadevan under Ex.P13 mahazar in the presence of PW.10 Selvam and Thiagarajan pursuant to the information given by A1 Murali in his confession statement. PW.10Selvam in his testimony has stated that the signature found in the confession statement of A1 Murali is his and the signature alone was marked as Ex.P10. It is to be noted that PW.10 Selvam did not state in his testimony that A1 Murali gave information in his confession statement in his presence.

The prosecution case further is that MO.2 Red StoneGold Ring was pledged by A2 Sekar alias Rajasekar through Suresh in Sri Jagathamba Bankers run by PW.14 Ruparam. Suresh was not examined in the case. PW.14 Ruparam has testified that MO.2 Redstone Gold Ring was pledged on 12.12.2006 in his shop in the name of Suresh and he issued Ex.P21 Pledge Receipt in the name of Suresh.PW.14 Ruparam did not identify the accused in the trial. Ex.P21Pledge Receipt is also in the name of Suresh. Hence the testimony of PW.14 Ruparam does not advance the prosecution case. MO.2 RedStone Gold Ring is said to have been recovered under Ex.P14 mahazarin the presence of PW.10 Selvam and Thiagarajan pursuant to the information given by A2 Sekar. PW.10 Selvam in his testimony has stated that the signature found in the confession statement ofA2 Sekar is his and the signature alone was marked as Ex.P11.It is to be noted that PW.10 Selvam did not state in his testimony that A2 Sekar gave information in his confession statement in his presence.

It is the further case of the prosecution that A1Murali handed over MO.3 Machine Cutting Gold Chain to his friendSasikumar who in turn sold the same to Madhanlal for a sum ofRs.29,500/-. Sasikumar was examined as PW.12 and he has testified that he had put his signature in white blank paper in the PoliceStation and he did not know anything about the case. He was declared hostile. Madhanlal was examined as PW.11 and he has testified that PW.12 Sasikumar on 13.12.2006 soldMO.3 Machine Cutting Gold Chain in his shop and he gave a sum ofRs.29,500/- as sale price to PW.12 Sasikumar in two instalments.PW.11 Madhanlal did not speak about the presence of A1 Muraliin his shop during the sale transaction. PW.12 Sasikumar having turned hostile, the prosecution has failed to establish thatMO.3 Gold Chain came to be sold at the instance of A1 Murali. The further prosecution case is that MO.3 Gold Chain came to be recovered pursuant to the information given by A1 Murali in his confession statement in the presence PW.10 Selvam and Thiagarajan. As already seen, the prosecution has failed to establish thatA1 Murali gave information in his confession statement in the presence of PW.10 Selvam and Thiagarajan leading to recovery of material objects. In such circumstances, it is unsafe to rely on the testimony of PW.10 Selvam with regard to the recovery ofMO.3 Gold Chain from PW.11 Madhanlal.

MO.4 Navaratna Stone Gold Ring is said to have been pledged by A2 Sekar in the name of Suresh with PW.15 Pawn BrokerHemaram. PW.15 Hemaram has testified that on 12.12.2006, MO.4Navaratna Stone Gold Ring was pledged in his shop in the name of Suresh and he issued Ex.P22 Pledge receipt. PW.15 Hemaram did not identify the accused in the trial. It is his testimony that he could not say as to who pledged MO.4 Navaratna Stone Gold Ring in the name of Suresh and he did not see any of the accused. The testimony of PW.15 Hemaram does not advance the prosecution case in any way. The further case of the prosecution is that A2 Sekar gave information in his confession statement which led to recovery of https://hcservices.ecourts.gov.in/hcservices/ MO.4 Navaratna Stone Gold Ring under Ex.P15 mahazar in the presence of PW.10 Selvam and Thiagarajan. As already seen, the prosecution has failed to establish that A2 Sekar gave information in his confession statement in the presence of PW.10 Selvam and Thiagarajanleading to recovery of material objects. In such circumstances, itis unsafe to rely on the testimony of PW.10 Selvam with regard to the recovery of MO.4 Navaratna Stone Gold Ring.

M.Os.5 and 6 Gold Rings and MO.7 Gold Chain are said to have been recovered from the house of A2 Sekar, pursuant to the information given by him in the presence ofPW.10 Selvam. It is already concluded that the prosecution has failed to prove that A2 Sekar gave information in his confession statement. In such circumstances, it is not safe torely on the testimony of PW.10 Selvam with regard to the recovery of M.Os.5 and 6 Gold Rings and MO.7 Gold Chain from the house of A2 Sekar.

The prosecution case is that MO.8 Pearl Gold bangles and MO.9 Bracelet were recovered from A3 Sasikumar in his house under Ex.P20 mahazar in the presence of PW.10 Selvam and Thiagarajan. The Investigation Officer PW.18 Inspector Sarvesan has stated that he arrested A3 Sasikumar at 4.30 pm on 21.12.2006 in Perambur Railway Station and enquired him in the presence of PW.10Selvam and Thiagarajan. PW.10 Selvam has testified that the signature found in the confession statement of A3 Sasikumar is his and that signature alone has been marked as Ex.P19. Theprosecution has failed to examine the other witness Thiagarajanand no reason has been stated for his non-examination. TheInvestigation Officer in his testimony has stated that A3 Sasikumargave Ex.P31 information in his confession statement in the presence of PW.10 Selvam and Thiagarajan. PW.10 Selvam was not treated as hostile though he did not state that A3 Sasikumar gave information in his confession statement in his presence and the prosecution had failed to examine the other witness Thiagarajan. In such circumstances, the testimony of the Investigation Officeralone cannot prove that A3 Sasikumar gave confession statement containing Ex.P31 information and that led to recovery of the articles. It is unsafe to rely on the testimony of PW.10 Selvamwith regard to recovery of MO.8 Pearl Gold bangles andMO.9 Bracelet under Ex.P20 mahazar and the prosecution has failed to prove that A3 Sasikumar gave information in his confession statement which led to the recovery of MO.8 Pearl Gold bangles andMO.9 Bracelet.

MO.15 Reliance Cellphone is said to have been recovered from the house of A1 Murali by the Investigation Officer PW.18Inspector Sarvesan under Ex.P17 mahazar in the presence of https://hcservices.ecourts.gov.in/hcservices/ PW.10 Selvam and Thiagarajan. The learned Senior Counsel appearing for the appellants submits that the defence has established through the testimony of DW.1 Prabhu that MO.15 Reliance Cellphone does not belong to deceased Sriramulu and it stands in the name ofMr.N.G.Balan. We find force in this submission and it is accepted. As per Ex.P17 mahazar, MO.15 Reliance Cellphone was recovered from the house of A1 Murali. Even as per the prosecution case, this recovery is not pursuant to any information given by A1 Muraliin the confession statement. The prosecution has not proved this recovery and moreover this recovery does not advance the prosecution case in any way.

MO.19 Knife is said to have been recovered from the fish vending shop of A1 Murali under Ex.P18 mahazar pursuant to the information given by him in the confession statement in the presence of PW.10 Selvam and Thiagarajan. As already stated, the prosecution has failed to prove that A1 Murali gave information in his confession statement. In such circumstances, it cannot be concluded that MO.19 Knife came to be recovered at the instance of A1 Murali. It is also unsafe to rely on the testimony of PW.10 Selvam with regard to recovery of MO.19 Knife.

The prosecution has heavily relied on the testimony ofPW.10 Selvam to prove the recovery of the material objects referred above at the instance of A1 to A3. In this context, itis relevant to refer to following portion of his testimony incross-examination: "vjphpfs; bfhLj;j xg;g[jy; thf; FK:yj; jpy; xt; bthU rhd; WbghUSk; Fwpg; ghf vj; jid kzpf;F ifg; gw; wg; gl; lJ vd; WFwpg; gpl;L brhy;y ,ayhJ/ Mdhy; Kjd; Kjypy; nghdJ kl; Lk;Fwpg; gpl;L brhy;y Koa[k;/ nghyPrhh; vd; id tprhhpj; jnghJ rhd; WbghUl;fs; ifg; gw; wpaJ Fwpj;J vj; jid kzpf;F ve;j bghUs;ifg; gw; wg; gl; lJ vd;W Fwpg; gpl;L brhy; ytpy; iy/ ifg; gw; wg; gl; leiffs; vd;d fpuhk; vd;W vd; dhy; Fwpg; gpl;L brhy;y KoahJ/nghyPrhh; njhuhakhf brhd; dij brhy; fpnwd;/ ehd; nghdjhfbrhy; yg; gLk; xt; bthU ,lj; jpd; Kftup jw; nghJ vd; dhy; brhy;y ,ayhJ/ nghyPrhhplk; ehd; bfhLj;j thf; FK:yj; jpy; ve;j ,lj; jpy; brd;w Kfthpia ehd; brhy; ytpy; iy vd; why; rhpjhd;/ 1 Kjy; 3 vjphpfs; K:ykhf ifg; gw; wg; gl; ljhfbrhy; yg; gLk; bghUl;fs; ifg; gw; wg; gl;l ,l';fspy; jpir gw; wpvdf;F bjhpahJ/"

As already seen, PW.10 Selvam did not own the case of the prosecution that all the accused gave information in their https://hcservices.ecourts.gov.in/hcservices/ confession statements. Though he has testified about the recovery of M.Os.1 to 10 jewels, MO.15 Reliance Cellphone and MO.19 Knife, in the cross-examination referred above, he has stated that he did not specifically point out the time and place of recovery and he was only stating the approximate information furnished by the Police. In short, the testimony of PW.10 Selvam does not inspire confidence and no reliance can be placed on it. The prosecution has failed to prove the only circumstance relied on by it to prove the guilt of the accused in the charges of murder and theft and there is practically no evidence adduced with regard to the charge of criminal conspiracy.

The trial Court has misdirected itself by wrongly appreciating the evidence on record and erroneously concluded that the prosecution has proved the charges against the accused. Theconviction and sentence imposed on the accused are liable to beset aside.