IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14/01/2003 CORAM THE HON'BLE MR.JUSTICE V.S.SIRPURKAR AND THE HON'BLE MR.JUSTICE P.D.DINAKARAN Criminal Appeal No.623 OF 1998 1.Sheikchand Batcha 2.Sudakar ..... Appellants. -Vs- State rep.by Inspector of Police Budalur Police Station ..... Respondent. Appeal against the judgement of the learned Principal Sessions Judge, Thanjavur in S.C.No.37/97 dated 17.2.1998 convicting the appellants under section 302 r/w 34 and 392 r/w 397 r/w 34 IPC., For Appellant : Mr.R.Rajaratnam for Mr.R.Rajan For Respondent: Mr.A.Navaneethakrishnan Addl.Public Prosecutor :J U D G E M E N T V.S.SIRPURKAR,J., The two appellants in this appeal challenge their conviction for the offence under section 302 read with 34 IPC., and section 392 read with 397 read with 34 IPC., and the consequent sentences awarded by the Principal Sessions Judge, Thanjavur. 2. They were tried for the offence on the allegation that they, on 2 4.1.1995, committed the murder of one Venkatarethinam who accompanied them in the lorry during the trip from Ananthapur in Andhra Pradesh to Pattukottai in Tamil Nadu and back. 3. The prosecution story is that the said Venkatarethinam was working as a commission agent. P.W.6 Meda Ramnath had sent 150 bags of ground-nut seeds valued at Rs.2 lakhs with relevant papers by the lorry which was being driven by Sudhakar (Accused No.2). Sheikchand Batcha (Accused No.1) was the cleaner of the lorry. The prosecution alleged that this lorry alongwith the deceased Venkatarethinam left Pattukottai on 24.1.1995. The ground-nut seeds were sold to P.W.8 Ramanujam. The prosecution further alleged that after the lorry was unloaded at the oil-mill of P.W.8 Ramanujam at Pattukottai at about 8.00pm on 24.1.1995, his son P.W.9 Ravi handed over two lakhs of rupees in cash being the value of the ground-nut seeds to Venkatarethinam in the presence of both the accused persons, which he kept in a suit-case which he was carrying alongwith him in the lorry. Both the accused left Pattukottai in the lorry alongwith Venkatarethinam who was the third passenger in the lorry. The prosecution further alleges that during their return journey, the two accused committed the murder of Venkatarethinam obviously for the money that he was carrying near a village called Pudukudi. The two accused committed this act by assaulting the said Venkatarethinam with Jacki rod and wheel bolt iron pipe on his head and face and smashed the same and took away the two lakhs of rupees kept in the suit-case and also removed Rs.2,000/- kept in his pocket. 4. P.W.1 Kalimuthu who is the Village Administrative Officer of Vendayampatti was informed by P.W.2 Santhanasekar who is his menial at about 8.30pm that a dead body was lying in Pudukudi road which is running south of Thanjavur-Trichy main road at a distance of one furlong from the main road. P.W.1 went to the said place and saw the dead body and he prepared a complaint Ex.P1 and gave the same to Sengipatti Police Station. The police after registering the complaint went to the spot and prepared Ex.P4 observation Mahazar in the presence of P. Ws.1,2&3. P.W.3 was another witness who saw the body and informed P.W.1 about it. The body was also sent for post mortem and as many as 11 injuries were found by the doctor P.W.4 Vijayalakshmi who conducted the post mortem. In the opinion of the doctor the said person had died of the injuries on his face and head. Vicera also was sent for chemical analysis. According to the doctor, the injuries were ante mortem and were cause for the death. Injuries 1 to 7 were found on the head and face and both the head and face found to be crushed. 5. The prosecution alleged that at the time of death Venkatarethinam was working as a clerk under P.W.6 Meda Ramnath and usually went to other states as he was working as lorry commission agent. He left his house at about 5.00 or 6.00pm on 23.1.1995 and thereafter never returned. It was only after 5 days PW6 Meda Ramnath came and enquired about him from his wife P.W.5 Nagalakshmi and it was only on 8.2.1995 she was informed that her husband had died. At the time when Venkatarethinam, left the house he was wearing M.O.6 wrist watch and M.Os.3 to 5 which were the clothes found on the body of Venkatarethinam. She was shown the photographs of her husband and she recognised them to be that of her husband. 6. The prosecution further alleged that the lorry which had left Pattukottai on 24.1.1995 reached back Ananthapur only on 26.1.1995. When P.W.6 Meda Ramnath questioned the accused he was told that Venkatarethinam had not come alongwith them in the lorry and he had stated that he would come by bus. Since by a previous arrangement Venkatarethinam was to return along with the huge cash of rupees two lakhs P.W.6 Meda Ramnath telephoned P.W.6 Ramanujam on 26.1.1995 itself and he was informed that the goods had reached his oil-mill in Pattukottai and in the same lorry he had sent Rs.2 Lakhs cash alongwith the deceased Venkatarethinam. P.W.6 Meda Ramnath informed the 2ndt accused the driver of the lorry about the information that he had from P.W.8 and asked him to come to Pattukotttai within him. However, since that time the 2nd accused had absconded. P.W.6 himself went to Pattukottai on 28.1.95 evening alongwith the first accused who was the cleaner in the lorry and on the next day he enquired P.W.8 and from which enquiry he was informed that the money was sent alongwith the deceased Venkatarethinam and the said Venkatarethinam alighted the lorry alongwith the case. The said deal was arranged through a broker called S.A. Kafoor. On knowing about all these however P.W.6 Meda Ramnath went back to Ananthapur. 7. On 7.2.95 P.W.10 Lakshmi Narayana Rao who was the Village Administrative Officer of Kalakallah of Ananthapur District, Andhra Pradesh had accompanied the police Sub Inspector of Ananthapur No.2 Town Police Station to Ananthapur-Bellary Bye-pass road also accompanied by one Narashinga Rao who is also a Village Administrative Officer. They saw a person carrying a bag and on suspicion they accosted that person who ultimately turned out to be accused No.1 herein. When the bag was searched, it was found that A1 was having a cash of Rs.10,000/- in the bag. That was recovered by the Sub Inspector of Police in the presence of P.W.10. The accused then stated to have given a confession statement which was recorded in the presence of P.W.10 and Narasinga Rao in which he stated that he had kept Rs.90,000/- more in the house of Muskin Beevi, wife of late Ghouse Mohaideen who is his aunt who is residing near Bodugunda Railway gate in Dharmawaram. The police registered a case and on the basis of the confession statement. Ex.P11 is the admissible portion of the said confession statement. A1 took the police and others to the house of Muskin Beevi and produced Rs.90,0 00/- which was recovered under Ex.P12. The police therefore realising that the offence was committed with the precincts of the limits of Tamil Nadu Police they forwarded the papers alongwith the cash and the statements recorded on the face of the information given by the accused to Sengipatti Police Station. 8. Sengipatti Police Station already registered a case for suspicious death in Crime No.24/95 which was on the basis of Ex.P1 which had been recorded at the instance of P.W.1 who had come to know about the body of the deceased. The police converted that case into that of Section 302 IPC., after the report given by the Ananthapur Police and prepared express first information report and the same was sent to the concerned court. Further Investigation was started on that basis. Statement of the witnesses were recorded by P.W.18 Shanmugham. He came to Ananthapur and took custody of the accused from Judicial Magistrate No.3. He recorded the statements of P.Ws.5 to 7, P.W.10, P.W.16 etc., with the help of P.W.15 who knows Telugu. After conducting the investigation, when he took the accused persons in custody, they agreed to show the place where they had thrown the Jacki rod and wheel bolt iron pipe in a 'karuvelan' bush in front of a small building which was about 25 K.ms. from Thanjavur in Thanjavur-Tichy main road. The Jacki rod and the wheel bolt iron pipe were produced from the place in pursuance of the confession statement given by the accused persons. The material objets seized in the crime were sent by him for chemical analysis. The report of the chemical analyst is Ex.P21 and Ex.P22 is that of the serologist. During all these time, the 2nd accused Sudhakar was absconding. Only on 12.10.95 on receiving information P.W.18 arrested him at Nellur Bus Stand near Stanley Nagar Chennai at about 8.0 0pm. Charge sheet was presented on the basis of the evidence collected by the Investigation Officer P.W.19 who had also conducted some part of the investigation. On the basis of all these, the matter was committed to Sessions Court. 9. Before the Sessions Court the accused persons denied their guilt. They were therefore tried. The defence was that according to them, the deceased had never accompanied them when they left Pattukottai and that they knew nothing about his being murdered. However they admitted that the deceased Venkatarethinam had accompanied them to Pattukottai from Ananthapur. In short, the accused admitted that the first accused Sheikchand Batcha was the cleaner and the second accused Sudhakar was the driver of the lorry and they had left along with 150 bags of groundnut seeds from Ananthapur for Pattukkottai and that P.W.6 Meda Ramnath had sent the goods to P.W.8 and that the deceased had accompanied them on their journey from Ananthapur to Pattukkottai. The defence did not prevail and the accused came to be convicted by the Sessions Judge on the basis of the circumstantial evidence against them, necessitating this appeal on the part of the accused persons. 10. Learned counsel appearing on behalf of the defence painstakingly took us to the whole evidence and contended that the prosecution had not been able to establish that it was the accused persons who committed the murder. According to the learned counsel the circumstances emerging out of the evidence were too insignificant to connect the accused persons with the offence under Section 302 IPC., Learned counsel also contended that there were a number of missing links in this case and the prosecution was not able to complete the chain of circumstances nor could it prove the individual links so as to raise an irrefutable case and the only inference of the guilt of the accused. 11. On this back drop, in this appeal it has to be examined, as to whether the Sessions Judge was right in convicting the accused persons on the basis of the circumstantial evidence. 12. There can be no dispute that a lorry bearing Registration Number AP-02 /T0999 which is owned by P.W.7 Abdul Wahab was engaged for carrying 150 bags of groundnut seed to Pattukottai and more particularly to P.W.8 Ramanujam who himself is an oil-mill owner. The evidence of P.W.6 Meda Ramnath and P.W.8 Ramanujam coupled with the evidence of P.W.9 Ravi is sufficient for holding that there was such a contract in between P.W.6 Meda Ramnath on one hand and P.W.8 Ramanujam on the other hand. It also cannot be disputed that the the lorry left Ananthapur alongwith the goods and that the deceased Venkatarethinam accompanied the lorry. It is also beyond any doubt that the lorry was driven by the 2nd accused Sudhakar and the 1st accused Sheikchand Batcha was the cleaner of that lorry and all the three left Ananthapur at about 8.00pm on 23.1.1995 for Pattukottai in that lorry. This will be in our opinion, the first circumstance against the accused persons suggesting that the deceased had accompanied the accused persons to Pattukottai. It had also come in the evidence of P.W.6 Meda Ramnath and P.W.8 Ramanujam that as per the arrangement, the price these 150 bags at about Rs.2 lakhs was to be handed over in cash to the said Venkatarethinam who himself was a lorry agent and was acting on behalf of P.W.6 Meda Ramnath. There is in reality no cross-examination challenging these facts. 13. We have the evidence of P.W.5 Nagalakshmi, the wife of the deceased who also supports the theory that the deceased left with the lorry on 23.1.1995 and that he never returned alive to Ananthapur. The first link in between the deceased and the accused is therefore established beyond any pale of doubt. 14. There was some cross examination on the nature of the business as also on the fact as to whether in reality the amount of Rs.2 Lakhs was given to the deceased Venkatarethinam as was claimed by the prosecution. This was tried to be done by suggesting that Ex.P8 the letter dated 23.1.1996 written by P.W.6 Meda Ramnath to P.W.8 Ramanujam was a fictitious document and was prepared later on. Ex.P9 is the invoice relating to the consignment and it was also tried to be suggested that even this was later on created in order to create evidence that P.W.6 Meda Ramnath had demanded Rs.2 Lakhs as consideration for the consignment and the said amount has been paid by P.W.8 Ramanujam to the deceased Venkatarethinam. It was tried to suggest that the said letters were not given in time to the Magistrate and therefore they were suspicious. It may be that the letters have been sent to the Magistrate later on. However, to say that they were deliberately prepared by the prosecution would be too much. It would attribute unnecessary motivation to the Tamil Nadu Police. It may not be forgotten in this behalf that this was a case in which the police were earlier almost clueless and had to investigate only in respect of the incriminating circumstances as there was no eye-witness available in this case at all. If sometime is taken by the investigating agency in sending Exs.P8 and P9 to the Magistrate, that by itself will not raise a doubt for the simple reason that P.W.6 Meda Ramnath and P.W.8 Ramanujam completely supported the said documents. In so far as P.W.8 Ramanujam is concerned, he could have no interest in the deceased or in the prosecution. There was no reason of both these witnesses to suggest that an amount of Rs.2 Lakhs was handed over to the deceased, unless it was in reality handed over. The defence went to make some absurd suggestion to the effect that Venkatarethinam in fact had returned in the lorry alongwith accused persons. Learned counsel for the appellant tried to suggest that the whole transaction was suspicious in as much as the parties had no reason to pay such a huge cash of Rs.2 Lakhs and it could have been paid easily by issuing a cheque in favour of P.W.6 Meda Ramnath. True it is that a cheque or Demand Draft could have been given. But we cannot forget the fact that the consignment reached at about 8.00pm in a small place like Pattukottai on 24.1.1995. At that time getting a Demand Draft could not have been thought of for the obvious reasons. Since the transaction was to come to an end with the delivery of the goods from the lorry, the consideration amount was paid at that time itself. There is no cross examination and P.W.8 Ramanujam has very candidly stated that payment has been made in cash. Learned counsel complains that copies of the accounts regarding the payment of Rs.2 Lakhs or receipts for such payment were not produced. In our opinion. that could be of no consequence once both the receiver of the amount and the sender of the amount have been examined in person and had supported the transaction. The version of P.W.8 Ramanujam is also supported by P.W.9 Ravi who has delivered the cash of Rs.2 Lakhs at the directions of his father P.W.8 Ramanujam to the deceased Venkatarethinam. P.W.9 Ravi had very specifically stated in his evidence that the goods were received through broker Kapoor and that on 24.1.1996 they received 150 bags of groundnut seeds from P.W.6 Meda Ramnath for their oil mill at Pattukottai. He gave the amount of Rs.2 Lakhs to Venkatarethinam and in his presence Venkatarethinam put that amount in the suit case in the presence of the accused persons. There is nothing to disbelieve the claim made by this witness as he is wholly disinterested. There is nothing in his cross examination and he was merely asked whether the amount was withdrawn from the bank and whether it was reflected in the accounts. He asserted that he had the said accounts. He also claimed that the day books of the business were checked by the police but not seized. There is in reality no challenge to the theory that Venkatarethinam after he was handed over the amount proceeded in the said lorry. That apart, this assertion has remained completely unassailed. It is the case of the accused also that they left Pattukottai for Ananthapur immediately after unloading the consignment at the mills of P.W.8 Ramanujam. Both the witnesses P.W.8 and P.W.9 had no reason whatsoever to go to the extent of preparation of false records like Exs.P8 & Ex.P9 and to falsely claim that Rs.2 Lakhs were paid by them to the deceased Venkatarethinam. This is all the more obtained on the basis of an accepted position that 150 bags of ground nut seed were actually despatched from Ananthapur by P.W.6 Meda Ramnath in favour of P.W.8 Ramanujam. This therefore would turn out to be a second circumstance, viz., the deceased Venkatarethinam reached Pattukottai alive and while leaving Pattkottai he was in possession of rupees two lakhs in cash so as to provide a motive for some one to commit his murder. 15. The third circumstance which emerges out is that he was actually seen by P.W.9 Ravi boarding the lorry alongwith the accused persons. It is obvious that thereafter the deceased Venkatarethinam was never seen alive by anybody and it was only on the morning of 25.1.1995 his dead body alone came to be seen in the vicinity of Pattukottai. It is also obvious that P.W.9 Ravi therefore was the witness who had last seen the deceased Venkatarethinam in the company of the accused persons and all the three were together left Pattukottai in the lorry. The circumstance of last seen together is therefore a most vital circumstance. 16. When we consider the fact that the body of the deceased was found about 25 Kms away from Pattukottai not at the road in between Pattukottai to Ananthapur, but somewhat away from the main road, it is obvious that Venkatarethinam lost his life in the night between 24.1.95 and 25.1.95. In this behalf, the evidence of the doctor P.W.4 Vijayalakshmi is also worth noting. The said doctor conducted the postmortem on 26.1.1995 at about 12.45pm when the body reached her. She has given the opinion that the deceased would have died due to the crush injury on the head and face. When we go through the evidence of P.W.1 Kalimuthu, the Village Administrative Officer and that of P.W.2 Santhanasekar P.W.1's menial it becomes clear that the the body was found on 25.1.1995 and ultimately that body turned out to be that of Venkatarethinam and so far as the corpus delicti is concerned there is no dispute that the body belonged to Venkatarethinam. We have the evidence of P.W.5 Nagalakshmi who identified not only the photograph of the dead body but also from the clothes and the watch which were found on the dead body. In fact there is very little or any challenge to the fact that the body which was found is that belonged to that of Venkatarethinam the husband of P.W.5 Nagalakshmi. The circumstance which is then established by way of the next circumstance is that after leaving Pattukottai in the company of the accused persons, the dead body of the deceased Venkatarethinam was found in the early morning of 25 .1.1995 and thus Venkatarethinam lost his life somewhere in the night in between 24/1/1995 and 25/1/1995. It is established as an adverse circumstance by way of incriminating circumstance that after Venkatarethinam left Pattukottai with the money, he was never seen alive and his body alone was found in the early morning of 25.1.1995. The fact that report of the body was given by P.W.1 Kalimuthu almost immediately after coming to know about the same from P.W.2 Santhanasekar shows that Venkatarethinam could not have been alive at the day-break of 25.1.1995. Therefore, it is established that the deceased person Venkatarethinam who left Pattukottai in the night of 24.1.95 and was carrying cash amount of Rs.2 Lakhs alongwith both the accused persons, was found dead at the end of that night within about 25 to 30 K. Ms from Pattukottai when he was scheduled to go to Ananthapur and that his body was found on the same road leading to Ananthapur from Pattukottai though a little away from the main road. 17. It also cannot be disputed on the basis of the injuries suffered by Venkatarethinam that Venkatarethinam did not die in a natural death, but a homicidal death. It was tied to be suggested by the learned counsel at this juncture that Venkatarethinam could have also been met an accidental death and might have been a case of hit and run because his face and head which were found to be injured and the injuries could be attributed to his being run however by a vehicle. This theory was tried to be propounded by the learned counsel on the basis of an unguarded admission given by the Investigating Officer that the body looked as if it was involved in an accident. Such cannot be the case, for the simple reason that in that case the body would have been found right on the main road. The fact that the body was found about a furlong away from the main road rules out the possibility of this being a mere hit and run case. Even if we presume for the sake of argument that it is a hit and run case, there is no reason why Venkatarethinam should be about 25 to 30 K.Ms. away from Pattukottai to Ananthapur road. It is deposed that the deceased had depressed fractures on his face and head and even the doctor had pointed out that the injuries are attributable to his being hit by the weapons like Jackie rod and wheel bolt iron pipe which were shown to the doctor. In her evidence she has clearly deposed that the injuries were possible by repeated attacks by M.O.1& M.O.2. This claim has not been questioned in the cross examination of the doctor at all. The homicidal death of Venkatarethinam would therefore be the next circumstance. 18. Further it was submitted by the learned counsel for the defence that M.O.1 & M.O.2 could not have been used in the assault took place because as per the serologist's report, there was no human blood found on those material objects. In that behalf, we will have to take into account the fact that while this heinous crime took place in the night of 24.1.1995, these material objects were found only on 1.3.199 5 and as such there was a time gap of more than one month. The place where these M.Os were thrown away, was agreed to be discovered by the accused on 1.3.1995 only. Ultimately the weapons sent only on 29.3.1 995 for chemical analysis, which would be beyond two months from the time they are actually purported to have been used. As regards this discovery, it was pointed out by the learned counsel for the defence that P.W.1 Kalimuthu and P.W.2 Santhanasekar wh o acted as the punchers had turned hostile and as such their evidence cannot be believed and thus, the so called discovery of these weapons