Ayyanar v. The State of Tamilnadure

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 30-7-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.No.762 of 2008Ayyanar.. Appellant/ AccusedvsThe State of Tamilnadurep. ByInspector of PoliceOmalur Police StationSalem District.. Respondent/ ComplainantCriminal appeal preferred under Sec.374(2) of the Code ofCriminal Procedure against the judgment of the Principal SessionsJudge, Salem, made in S.C.No.317 of 2005 dated 16.12.2005.For Appellant: Mr.C.K.M.AppajiFor Respondent: Mr.N.R.Elango Additional PublicProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This appeal challenges a judgment of the Principal SessionsDivision, Salem, made in S.C.No.317 of 2005 whereby the soleaccused/appellant stood charged, tried and found guilty underSections 302 and 201 of IPC and awarded life imprisonment along witha fine of Rs.1000/- and default sentence under Sec.302 IPC and 3years Rigorous Imprisonment with a fine of Rs.1000/- and defaultsentence under Sec.201 IPC.2.Short facts necessary for the disposal of this appeal can bestated as follows:(a) P.W.1 is the son of the deceased Pavayammal. He is aresident of Kamalapuram Kizhakkathi Kadu. His mother Pavayammal wasliving 200 feet away from his house. P.W.4 a Carpenter, was aneighbour to Pavayammal. Pavayammal used to do work at the land ofP.W.2. She had already lent Rs.8000/- to the accused. When sheused to go through the house of P.W.4, she used to demand money fromthe accused. He used to reply that he had already gone to jail in https://hcservices.ecourts.gov.in/hcservices/ number of cases, and if she makes any demand, he would finish heroff. (b) On the date of occurrence i.e., 20.2.2004, as usual,Pavayammal went for work at about 7.00 A.M., and she returned by5.00 P.M. Thereafter, P.W.1 did not see his mother. He returned tohis house at about 8.00 P.M. But, his mother did not come back. Atabout 11.00 P.M., when P.Ws.6 and 7 went to Naranampalayam, theyfound a TVS 50 being driven by the accused, along with the gunnybag. Immediately both the witnesses called him and questioned whathe was taking in the gunny bag. He did not give any reply, but leftthe place immediately. The next morning, the villagers and P.W.1came to know that the dead body of Pavayammal with blood injurieswas found in a gunny bag along with TVS 50. (c) P.W.1 on coming to know about the same, at about 7.00 A.M.,rushed to the place and found the dead body of his mother. Then, heimmediately proceeded to the respondent police station and gaveEx.P1, the report. P.W.14, the Sub Inspector of Police, on thestrength of Ex.P1, the report, registered a case in Crime No.111 of2004 under Sections 302 and 201 IPC. Ex.P20 is the printed FIRdespatched to the Court. (d) P.W.16, the Inspector of Police, on receipt of the copy ofthe FIR, took up investigation, proceeded to the spot, made aninspection and prepared an observation mahazar, Ex.P3 and also arough sketch, Ex.P25. Then he recovered M.O.1, TVS 50, M.O.2,bloodstained gunny bag, M.O.3, a pair of chappals, and M.O.4, smallbag, from the place of occurrence under a cover of mahazar in thepresence of P.W.3 and his VAO. Thereafter, he conducted inquest onthe dead body and prepared an inquest report, Ex.P26. The dead bodywas sent to the Government Hospital along with a requisition for thepurpose of postmortem.(e) P.W.10, the Professor of Forensic Medicine, GovernmentMohan Kumaramangalam Medical College, Salem, on receipt of therequisition, conducted autopsy on the dead body of Pavayee Ammal andhas issued a postmortem certificate, Ex.P14, with his opinion thatthe deceased died of asphyxia due to strangulation. (f) P.W.17, the Inspector of Police, took up furtherinvestigation, examined the witnesses and recorded their statements.He came to know that the accused surrendered before the JudicialMagistrate No.I, Mettur. He sought for police custody, and the samewas ordered. At the time of interrogation, the accused came forwardto give a confessional statement voluntarily. The same wasrecorded. Ex.P15 is the admissible part of the confessionalstatement. Pursuant to the same, he took the police officials andidentified the place of occurrence. Thereafter, the Investigatorprepared an observation mahazar, Ex.P16, and a rough sketch, Ex.P17.The accused handed over M.O.5, nylon rope, which was recovered undera cover of mahazar, Ex.P17. Then, he was sent for judicial remand.P.Ws.1, 6, 7, 8 and 9 were produced before the Judicial Magistratefor recording their statements under Sec.164 Cr.P.C. They were allactually recorded. They are marked as Exs.P2, P9, P10, P11 and P12respectively. All these material objects were subjected to chemicalanalysis. Ex.P24 is the serologist's report. On completion ofinvestigation, the Investigator filed the final report. https://hcservices.ecourts.gov.in/hcservices/

3.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 17 witnesses and also relied on 27 exhibits and8 material objects. On completion of the evidence on the side ofthe prosecution, the accused was questioned under Sec.313 of Cr.P.C.as to the incriminating circumstances found in the evidence of theprosecution witnesses which he flatly denied as false. No defencewitness was examined, but one document was marked as Ex.D1. Thetrial Court heard the arguments advanced and took the view that theprosecution has proved the case beyond reasonable doubt and hencefound the appellant guilty as per the charges and awarded punishmentas referred to above which is the subject matter of challenge beforethis Court.4.Advancing arguments on behalf of the appellant, the learnedCounsel would submit that the prosecution has miserably failed toprove its case; that the prosecution was neither able to prove themotive attributed to the accused for the commission of the offencenor any circumstance indicating the nexus of the crime with theaccused; that the motive that was attributed to the accused for thecommission of the crime of murder was that he borrowed a sum ofRs.8,000/- from the deceased Pavayammal, and whenever she was makingthe demand, he was giving evasive reply, and at times he has evenintimidated her that he would murder her, and when she was pressingfor the money, he has actually committed the crime of murder, andthat was the reason for the motive attributed for the crime; but theevidence that was adduced by the prosecution was actually contrary;that the promissory note is marked as Ex.P7 dated 7.8.2004; that itwas recovered from the daughter of Pavayammal by name Valli; thatthe said Valli from whom it was recovered was not examined; thatP.W.11 was said to be the attesting witness of the promissory note;that P.W.11 has deposed that the amount of Rs.12,000/- was borrowedfrom Valli, the daughter of the deceased, and not from the deceasedand thus, it would be quite clear that even Ex.P7 has nothing to dowith the said financial transaction between the deceased and theaccused; that except this, the prosecution had nothing to offer inrespect of motive, and thus it has failed by its own evidence. 5.The learned Counsel would further add that the prosecutionhad no direct evidence to offer; that the main circumstance reliedon by the prosecution was the evidence of P.Ws.6 and 7; thataccording to them, they found the accused along with the gunny bagcarrying in a TVS 50 at about 11.00 P.M. on the date of occurrencei.e., 20.2.2004 and they intercepted and questioned him; but he didnot reply and went away; that the evidence of P.Ws.6 and 7 wouldclearly indicate that there could not have been any occasion forthem to be present at the place and time as spoken to by them; thatapart from that, they were also chance witnesses; that thediscrepancies in their evidence would clearly indicate that theycould not have been present at all; that the statements of thosewitnesses were recorded in order to march a circumstance tostrengthen the prosecution story; that P.W.8 would claim that theTVS 50 was actually taken from him at about 8.00 P.M. On 20.2.2004, https://hcservices.ecourts.gov.in/hcservices/ by the accused telling that he wanted to go to Omalur and wouldbring it back, and it was actually given by him; that a perusal ofthe cross-examination would indicate that the relationship betweenP.W.8 and the accused was strained; that under the circumstances, hecould not have lent TVS 50 to the accused, and hence his evidenceshould not have been believed by the trial Court.6.The learned Counsel would further add that in the instantcase, M.O.1 TVS 50, was actually found nearby the dead body; thatP.W.8 also came to know about the same; but, he has not gone to thepolice station to give a complaint or taken any steps for recoveryof the same; and that this would also tell upon the evidence ofP.W.8. 7.Added further the learned Counsel that the confession andrecovery were nothing but false and cooked up documents; that M.O.2was the gunny bag, and M.O.5 was a nylon rope; that pursuant to theconfession, both of them were recovered; but, M.O.5 was not sent foranalysis; that M.O.2 was sent only on 19.8.2004; that there wasactually human blood found; but, so long as the test report wouldnot speak about the tallying of blood group, it cannot be made useof by the prosecution; that the evidence that was placed before thetrial Court was not only feeble, but also weak; that the evidencedid not indicate anywhere the nexus of the accused with the crime inquestion; but, the trial Court has taken an erroneous view, andhence he is entitled for acquittal.8.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.9.It is not in controversy that the dead body of onePavayammal, the mother of P.W.1, was found. Following theregistration of the case under Sec.302 IPC by P.W.14, the inquestwas made by the Investigator, P.W.16. Then the dead body wassubjected to postmortem by P.W.10, the Doctor. He has given hisopinion that the deceased died of asphyxia due to strangulation.The fact that she died out of homicidal violence was never disputedby the appellant before the trial Court, and hence the trial Courtwas correct in recording so.10.In order to substantiate the fact that it was the accusedwho caused her death by causing asphyxia, the prosecution had nodirect evidence to offer, but rested its case upon circumstantialevidence. It is not that this Court is unmindful of the cautionmade by the settled principles of law that in a given case likethis, the prosecution must place and prove all necessarycircumstances which should constitute a chain without a snap, apartfrom pointing to the hypothesis that except the accused no one couldhave committed the offence. Even after this test is applied, thisCourt is satisfied that the prosecution has proved the case beyondreasonable doubt. P.W.1 is the son of Pavayammal. He hascategorically deposed that the accused has borrowed money from herin the past; that she was making demands; but, he has not made the https://hcservices.ecourts.gov.in/hcservices/ payment; and that he used to reply that previously he had gone tojail number of occasions and if demand was made, he would finish heroff. This part of the evidence of P.W.1 stood fully corroborated bythe evidence of P.W.4. It would be quite clear that Pavayammal haslent money to the accused in the past, and he did not make repaymentof the same. Now the contention put forth by the learned Counselfor the appellant is that Ex.P7 was the promissory note, and it wasrecovered from one Valli, the daughter of the deceased; that P.W.11an attesting witness, was examined; that according to him, theamount borrowed was actually Rs.12,000/- and not Rs.8000/-, and itwas also borrowed from Valli and not from the deceased; and that ifthis document is looked into, the evidence of P.W.1 does not seem tobe correct. However, as far as the borrowal of money fromPavayammal by the accused was concerned, the evidence put forth bythe prosecution would suffice in the considered opinion of theCourt. There is no witness examined to the effect that anybody haswitnessed the occurrence. But, the learned Additional PublicProsecutor brought to the notice of the Court the followingcircumstances which would be indicative of the complicity of theoffender namely the appellant/accused.11.Firstly on the date of occurrence that was on 20.2.2004 atabout 11.00 P.M., the accused was proceeding with a gunny bag in aTVS 50. P.Ws.6 and 7 intercepted him and questioned about the gunnybag and where he was moving that time in TVS 50. The accused didnot answer, but fled away. From the evidence of P.Ws.6 and 7 itwould be quite clear that they belonged to the same village, andthey knew the accused. Under the circumstances, there is no reasonor circumstance noticed by the Court to disbelieve the evidence ofP.Ws.6 and 7. 12.Secondly, P.W.8 is the owner of the TVS 50, M.O.1.According to him, he is the brother-in-law of the accused, and atabout 8.00 P.M. on 20.2.2004, the accused came to him and asked forthe TVS 50 since he was to go to Omalur and he would bring it in thenext morning, and he gave it to the accused; but, he did not bringit back. Now at this juncture, the fact that M.O.1, TVS 50,belonged to P.W.8 was not a fact disputed. P.W.8 was actually thebrother-in-law of the accused. There is no reason why he shouldcome forward to give evidence in a case of murder like this againsthis own brother-in-law. That apart, this TVS 50, M.O.1, wasidentified by P.Ws.6 and 7 in Court. This TVS 50 was actually foundnearby the dead body in the field in the gunny bag. Now theevidence of P.Ws.6 and 7 to the fact that the accused went alongwith the gunny bag in the TVS 50 which was lent by P.W.8 at about8.00 P.M. on 20.2.2004, would clearly be indicative of the fact thatthe accused was carrying the dead body in the gunny bag in TVS 50which belonged to P.W.8. Under the circumstances, it is for theaccused to explain how he happened to carry the dead body of thedeceased. In a given case where the prosecution rested its case oncircumstantial evidence and when a particular link is missing and ifthat link is within the special knowledge of the accused, it is forhim to explain the circumstance, and if the accused suppresses thecircumstance or comes with a false explanation, then the Court can https://hcservices.ecourts.gov.in/hcservices/ infer that the said circumstance is against the accused. In theinstant case, how he caused the death and how he happened to carrythe dead body, it is for the accused to explain; but, he has notcome forward. 13.Added circumstances are that on the arrest of the accused hegave a confessional statement which was recorded in the presence ofP.W.12 and his Assistant. Thereafter he took the police personneland identified the place where he committed the murder ofPavayammal. Added further, the recovery of M.O.5, nylon rope,pursuant to the confessional statement. This confessional statementleading to the recovery of a material fact namely the place ofoccurrence and also the weapon of crime would indicate the nexus ofthe accused with the crime. Thus the evidence adduced by theprosecution, in the considered opinion of the Court, would sufficepointing to the guilt of the accused and that except himself no onecould have committed the offence. In view of the above, thecontentions put forth by the learned Counsel for the appellant, inthe considered opinion of the Court, do not carry any meritwhatsoever. 14.In the result this criminal appeal must fail, andaccordingly, it is dismissed sustaining the conviction and sentenceimposed by the trial Court.nsvSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1.The Principal Sessions Judge Salem2.The Inspector of Police Omalur Police Station Salem District3.The Public Prosecutor High Court, Madras.4.The District Collector, Salem.5.The Director General of Police, Chennai.AKR(CO)SR/14.8.2009CRL.A.No.762 of 2008