IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 18.04.2009 CORAM THE HONOURABLE MR.JUSTICE C. NAGAPPAN AND THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Criminal Appeal No.146 of 2008 1. Moorthy 2. Boopathy ..Appellants/ Accused Versus State represented by The Inspector of Police Puduchatram P.S. Salem District. (Crime No.118 of 2003) ..Respondent/ Complainant Criminal Appeal filed u/s 374 (2) Cr.P.C. against the conviction and sentence made in S.C.No.114 of 2005, on the file of the learned Additional District and Sessions Judge (Fast Track Court), Namakkal. For Appellants : Mr.E.J.Ayyappan For Respondent : Mr.V.R.Balasubramaniam Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by T. SUDANTHIRAM, J.) The appellants who are the accused 1 and 2 in S.C.No.114 of 2005, on the file of the Additional Sessions Judge, FTC, Namakkal stands convicted for the offence under Section 449, 302 r/w 34 and 392 IPC and also sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs. 2000/- each in default to undergo one month simple imprisonment under Section 449 IPC; and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.3000/- each in default to undergo two months simple imprisonment under Section 392 IPC; and sentenced to undergo life imprisonment and to pay a fine of Rs.5000/- each indefault to undergo three months under Section 302 r/w 34 IPC and the sentence https://hcservices.ecourts.gov.in/hcservices/ of imprisonments are to run concurrently. Aggrieved by the said conviction and sentence the appellants have preferred this appeal. 2. The case of the prosecution in brief is that P.W.1 resident of Vanakaranpudur, who was having poultry farm and poultry feed mill. The deceased Mani @ Palanichamy was working as an Accountant in the said Mill. P.W.12 Palani Naicker, P.W.13 Soundararajan and others were working as farm workers in the poultry farm. The office building is also within the poultry farm compound. Totally four persons were in charge of the office and they were working under shift system. Out of four persons, one person used to stay in the night hours. On 02.03.2003, in the night hours, the deceased was in charge of the office. At about 6.00p.m., the deceased came to the mill and took charge. Handing over the charge, P.W.1 left the office. But on the next day, early morning at 4.30a.m., P.W.12, Palani Naicker and one Ramasamy came and informed that the deceased had been murdered and the bureau was broken. Immediately they went to the office and saw the deceased lying dead with stab injuries on his chest, stomach and hands. The doors of the office were also broke open. The bars of the window were bent. A sum of Rs.10,000/- which was kept in the bureau was found missing. P.W.1 went and gave complaint Ex.P.1. P.W.9 Sub Inspector of Police, Puduchatram Police Station, registered a case in Crime No.118 of 2003 for offences under Sections 397 r/w 302 IPC and prepared the First Information Report Ex.P.13. 3. P.W.17, Inspector of Police of Puduchatram Police Station on receiving a copy of the First Information Report took up the investigation, went to the scene of occurrence and prepared the observation mahazar Ex.P.15 and also prepared a rough sketch Ex.P.16. P.W.16, took up photographs at the scene of occurrence and M.O.16 series are the photos. P.W.17 held inquest from 11.00a.m., to 2.00p.m., on 03.03.2000 and prepared the inquest report Ex.P.17. He seized two hack saw blade M.O.6, half sleeve white shirt M.O.1, full sleeve swatter M.O.2, thread M.O.3, Ganny bag M.O.7, lock and key M.O.8 under mahazar. At about 3.00p.m., he also recovered the blood stained earth and sample earth. He examined the witnesses Anand Kumar P.W.5, Soundararajan, P.W.13 Palani Naicker and Periasamy. P.W.17 sent the body for post mortem examination with a requisition. 4. P.W.6 Dr.Kumarasamy held autopsy and noted the following injuries: "External Injuries: (1) An incised wound over the left hand, palmar aspect 10 x 2-1/2 x 2 cm size. C/s. Muscles and tendon's partially cut. (2)A punctured wound over the right side of chest https://hcservices.ecourts.gov.in/hcservices/ below the collar bone 7 x 3 x 16 cm with blood fluid cozing from the wound. (3) A punctured wound on the middle of the chest just right side of the sternum below the level of the nipple 7-1/2 x 3 x 8cm. Lung tissue comes out through the wound. (4) An incised wound on the back of chest left side 2-1/2 x 1-1/2 x 1cm. (5) Multiple small incised wound of different sizes present over the left hand, palmar aspect. All wounds are ante-mortem in nature. Internal Examination: Thorax: 1000ml or blood fluid present in the pleural cavity. Heart: An incised wound on the right side of the heart 3 cm x 1 cm x 2 cm right abrasion. Lungs: Right lung collapsed - 2 incised wound on the right lung one at the upper lobe another at lower lobe. An incised wound on the Thoracic cavity inner side right side 3 x 1-1/2 x 1cm. Abdomen: 200 gms of partially digested food (rice) present in the stomach. Other organs are normal. Head & Neck: Hyoid bone intact. Brain Normal." The Doctor opined that the deceased would appear to have died of shock and haemorrhage due to injury to vital organs lungs and heart by multiple injuries about 18 to 24 hours prior to post mortem. examination. 5. On 05.03.2003, P.W.17 examined the witnesses Thangammal, Subramaniam, Shanmugasundaram, Perumayi Dharmalingam, Manickam, Pappathi, Nithya. On 06.03.2003 he examined Murugesan, Paulraj, Samikannu, Pichamuthu, Balan, Chinnusamy, Ammasi, Madheswaran and Jeganathan and on 07.03.2003 he examined Majula devi, Shanthi and Palani. On 21.07.2003, he sent a report Ex.P.18 altering the case from Sections 397 and 302 IPC to one under Section 302 IPC. 6. On 22.07.2003, P.W.18, Radhakrishnan, Inspector of Police, Queue Branch, Dharmapuri District, took up further investigation. On 08.10.2003, on the information given by P.W.15, P.W.18 arrested the first accused at 7.00p.m., near the petrol bunk at Ellur in the presence of P.W.14 Ramesh and Periasamy and recorded the confession Ex.P.19. He also produced a half sovereign gold ring and also a knife from his hip. M.O.14 is the knife and M.O.15 is the ring and they were recovered under Ex.P.15 mahazar. On 08.10.2003, he sent an alteration report to the Judicial Magistrate II, under Ex.P.20. On 19.11.2003 he gave a requisition to the learned Magistrate for sending the property for chemical analysis. Ex.P.11 is the https://hcservices.ecourts.gov.in/hcservices/ chemical analyst report and Ex.P.12 is the serologist report. On completion of the investigation, he laid the final report on 15.12.2003 under Sections 443, 302 r/w 34 and 392 IPC. The second accused was shown as absconding accused in the final report. 7. P.W.11 Marappan has deposed before the Court that he is having a tea shop near Natesan poultry farm and mill. The first accused came to his tea shop and asked Soundararajan (who is also an employee of the mill) to get a job for him. On 02.03.2003, he went along with the other witness Balakrishnan to Karaikurichipudur to see the entertainment show and returned at about 11.30p.m. Then he saw both the accused coming from the back side of the mill. As a tempo came there, he could see both the accused in the light thrown from the vehicle lamp. He questioned the first accused as to why he was coming at that time at late hours. He was informed by the first accused that he had gone to see Soundararajan. On the next day morning at 4.30a.m., he came to know that the deceased had been murdered. After ten months when he came to know that the first accused has been arrested and kept in the Puduchatram police station, he went and identified the accused. P.W.12, who was working as a Car driver for P.W.1, deposed that he knows P.W.11 Marappan who was having tea shop. He also knows the first accused and the first accused requested Soundararajan to get a job for him. On 08.10.2003 at about 11.00p.m., he went to the police station and saw the first accused in the police station. P.W.13 Soundarajan has deposed that on 02.03.2003, he was in the Mill and on the next day early morning 4.30a.m., he came to know that the deceased was murdered. He further stated that he knows the first accused prior to the occurrence and he and Pallaniappan had tea in the shop of P.W.11 and at that time, the first accused requested him to get a job in the mill. On 08.10.2003, at about 11.30p.m., he went to the police station and saw the accused in the police station. P.W.15 who is having a tea and Paan shop had deposed that he knows the first accused. On 08.10.2003 at 10.00a.m., when he was in the shop, he saw the first accused and as he was new person to the place, he suspected him. He also noticed a knife in his pant pocket. He gave information to the Puduchatram Police Station. Then the police arrested the first accused. 8. The prosecution in order to establish its case, examined 19 witnesses, marked 20 exhibits and produced 16 material objects. When the accused were questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances, they have denied the complicity. 9. Mr.E.J.Ayyappan, learned counsel for the appellants submitted that there is no eye-witness to the occurrence and the first accused was arrested only after seven months after the occurrence and the second accused who is his brother was arrested https://hcservices.ecourts.gov.in/hcservices/ only after filing the final report. The statement of witnesses which is said to have been recorded on 08.10.2003 have been sent to court only in January, 2008. The learned counsel further submitted that the circumstances let in by the prosecution are concocted and very weak in nature and they do not prove the guilt of the appellants. The learned counsel further submitted that though it is a case of prosecution that a sum of Rs.10,000/- was missing, there is no evidence to prove it. The learned counsel further submitted that the accused who have been seen near the mill at the night time which is highly unbelievable. 10. Per contra, Mr.V.R.Balarubramaniam, learned Additional Public Prosecutor submitted that both the accused 1 and 2 are brothers and the second accused was absconding for a long time and pending investigation he could not be arrested. This conduct of the accused itself is one of the circumstances. The learned Additional Public Prosecutor further submitted that the other circumstances are also available in this case. P.W.11 had seen both the accused on the date of occurrence during the night hours. The presence of the accused in the village and the confession given by the first accused in pursuance of which, along with the knife half, sovereign gold ring was recovered, and it was purchased out of the cash that was robbed. 11. This Court considered the submission made by both sides and perused the records. The deceased who was staying in the mill during the night hours, was found dead in the next day early morning with the injuries. According to the evidence of the Doctor and the post mortem certificate Ex.P.7, the deceased died due to homicidal violence. Though there is no eye witnesses to the occurrence, the prosecution had relied on the circumstantial evidence which are as follows: (i)The first accused who does not belongs to the place had visited the village earlier. He met witness Soundarajan P.W.13 on the pretext of seeking a job. (ii) On the date of occurrence at about 11.30p.m., both the accused 1 and 2 were seen near the Natesan's Mill, where the deceased was found dead. (iii) Seven months after the occurrence, again the accuse was seen in the village and he was arrested. From his possession, a knife and a gold ring were recovered. According to the confession of the accused, out of the amount robbed, he had purchased the half sovereign gold ring and the said ring has been recovered. 12. P.W.13 who was working as accountant in the Natesan's mill had deposed that prior to the occurrence he had seen the first accused while he was taking tea in the shop of P.W.11 along with P.W.12. The accused had approached him for a job in the mill. https://hcservices.ecourts.gov.in/hcservices/ This evidence of P.W.13 is corroborated by the evidence of P.W.12 and also by P.W.11. Though the accused had denied about his visit to the place, prior to the occurrence the accused had come to the scene which is established by this evidence. Further, on the date of occurrence, P.W.11 who is having tea shop near the mill had seen both the accused 1 and 2 at about 11.30p.m., who was coming from the back side of the mill. P.W.11 is an independent witness. He has no animosity to depose falsely against the accused. There is no reason to reject the evidence of P.W.11. At the crucial hours, both the accused were seen by P.W.11 and they have been identified by P.W.11 in the Court. There is no explanation from the accused and also that as to why they came to this place at the night hours at 11.30p.m. The first accused was arrested only on 08.10.2003 who was wandering in the village on the information given by P.W.15. As per the confession given by the first accused, a fact was discovered that the first accused had purchased a gold ring and the gold ring M.O.15 also was recovered from his possession. The accused also denied the recovery of gold ring and he has not claimed the ownership of the ring. This part of denial by the accused stands as an additional circumstance against the accused. Even after the arrest of the first accused, the second accused was absconding for a long time and only after filing the final report in pursuance of the non-bailable warrant issued, the second accused could be traced and arrested. The conduct of the second accused is one circumstance added to the other available circumstances. 13. We hold that the circumstances let in by the prosecution lead only to the guilt of the accused and no other inference is possible to draw in favour of the accused. The prosecution has established its case beyond all reasonable doubt against the accused. 14. In the result, the appeal is dismissed. The conviction and sentence imposed on the accused are confirmed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ksr https://hcservices.ecourts.gov.in/hcservices/ To 1.The Additional Sessions Judge (FTC), Namakkal. 2.-do- through The Principal Sessions Judge, Namakkal. 3. The Judicial Magistrate No.2, Namakkal 4. Do thro the Chief Judicial Magistrate, Namakkal 5.The Inspector of Police, Puduchatram P.S., Nammakkal. 6.The Superintendent of Prisons, Central prison, Coimbatore. 7.The Public Prosecutor, High Court, Madras 600104. 8 The Section Officer, Criminal Section, High Court, Madras 104. 9. The District Collector Namakkal 10. The Director General of Police Chennai.4 Criminal Appeal No.146 of 2008 GV (CO) kk 30/4 https://hcservices.ecourts.gov.in/hcservices/