IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30-7-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.762 of 2008 Ayyanar .. Appellant/ Accused vs The State of Tamilnadu rep. By Inspector of Police Omalur Police Station Salem District .. Respondent/ Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Salem, made in S.C.No.317 of 2005 dated 16.12.2005. For Appellant : Mr.C.K.M.Appaji For Respondent : Mr.N.R.Elango Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Principal Sessions Division, Salem, made in S.C.No.317 of 2005 whereby the sole accused/appellant stood charged, tried and found guilty under Sections 302 and 201 of IPC and awarded life imprisonment along with a fine of Rs.1000/- and default sentence under Sec.302 IPC and 3 years Rigorous Imprisonment with a fine of Rs.1000/- and default sentence under Sec.201 IPC. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the son of the deceased Pavayammal. He is a resident of Kamalapuram Kizhakkathi Kadu. His mother Pavayammal was living 200 feet away from his house. P.W.4 a Carpenter, was a neighbour to Pavayammal. Pavayammal used to do work at the land of P.W.2. She had already lent Rs.8000/- to the accused. When she used to go through the house of P.W.4, she used to demand money from the 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 her off. (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 by 5.00 P.M. Thereafter, P.W.1 did not see his mother. He returned to his house at about 8.00 P.M. But, his mother did not come back. At about 11.00 P.M., when P.Ws.6 and 7 went to Naranampalayam, they found a TVS 50 being driven by the accused, along with the gunny bag. Immediately both the witnesses called him and questioned what he was taking in the gunny bag. He did not give any reply, but left the place immediately. The next morning, the villagers and P.W.1 came to know that the dead body of Pavayammal with blood injuries was 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, he immediately proceeded to the respondent police station and gave Ex.P1, the report. P.W.14, the Sub Inspector of Police, on the strength of Ex.P1, the report, registered a case in Crime No.111 of 2004 under Sections 302 and 201 IPC. Ex.P20 is the printed FIR despatched to the Court. (d) P.W.16, the Inspector of Police, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3 and also a rough 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, small bag, from the place of occurrence under a cover of mahazar in the presence of P.W.3 and his VAO. Thereafter, he conducted inquest on the dead body and prepared an inquest report, Ex.P26. The dead body was sent to the Government Hospital along with a requisition for the purpose of postmortem. (e) P.W.10, the Professor of Forensic Medicine, Government Mohan Kumaramangalam Medical College, Salem, on receipt of the requisition, conducted autopsy on the dead body of Pavayee Ammal and has issued a postmortem certificate, Ex.P14, with his opinion that the deceased died of asphyxia due to strangulation. (f) P.W.17, the Inspector of Police, took up further investigation, examined the witnesses and recorded their statements. He came to know that the accused surrendered before the Judicial Magistrate No.I, Mettur. He sought for police custody, and the same was ordered. At the time of interrogation, the accused came forward to give a confessional statement voluntarily. The same was recorded. Ex.P15 is the admissible part of the confessional statement. Pursuant to the same, he took the police officials and identified the place of occurrence. Thereafter, the Investigator prepared an observation mahazar, Ex.P16, and a rough sketch, Ex.P17. The accused handed over M.O.5, nylon rope, which was recovered under a 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 Magistrate for recording their statements under Sec.164 Cr.P.C. They were all actually recorded. They are marked as Exs.P2, P9, P10, P11 and P12 respectively. All these material objects were subjected to chemical analysis. Ex.P24 is the serologist's report. On completion of investigation, the Investigator filed the final report. https://hcservices.ecourts.gov.in/hcservices/ 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 17 witnesses and also relied on 27 exhibits and 8 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined, but one document was marked as Ex.D1. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found the appellant guilty as per the charges and awarded punishment as referred to above which is the subject matter of challenge before this Court. 4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that the prosecution has miserably failed to prove its case; that the prosecution was neither able to prove the motive attributed to the accused for the commission of the offence nor any circumstance indicating the nexus of the crime with the accused; that the motive that was attributed to the accused for the commission of the crime of murder was that he borrowed a sum of Rs.8,000/- from the deceased Pavayammal, and whenever she was making the demand, he was giving evasive reply, and at times he has even intimidated her that he would murder her, and when she was pressing for the money, he has actually committed the crime of murder, and that was the reason for the motive attributed for the crime; but the evidence that was adduced by the prosecution was actually contrary; that the promissory note is marked as Ex.P7 dated 7.8.2004; that it was recovered from the daughter of Pavayammal by name Valli; that the said Valli from whom it was recovered was not examined; that P.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 borrowed from Valli, the daughter of the deceased, and not from the deceased and thus, it would be quite clear that even Ex.P7 has nothing to do with the said financial transaction between the deceased and the accused; that except this, the prosecution had nothing to offer in respect of motive, and thus it has failed by its own evidence. 5.The learned Counsel would further add that the prosecution had no direct evidence to offer; that the main circumstance relied on by the prosecution was the evidence of P.Ws.6 and 7; that according to them, they found the accused along with the gunny bag carrying in a TVS 50 at about 11.00 P.M. on the date of occurrence i.e., 20.2.2004 and they intercepted and questioned him; but he did not reply and went away; that the evidence of P.Ws.6 and 7 would clearly indicate that there could not have been any occasion for them to be present at the place and time as spoken to by them; that apart from that, they were also chance witnesses; that the discrepancies in their evidence would clearly indicate that they could not have been present at all; that the statements of those witnesses were recorded in order to march a circumstance to strengthen the prosecution story; that P.W.8 would claim that the TVS 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 would bring it back, and it was actually given by him; that a perusal of the cross-examination would indicate that the relationship between P.W.8 and the accused was strained; that under the circumstances, he could not have lent TVS 50 to the accused, and hence his evidence should not have been believed by the trial Court. 6.The learned Counsel would further add that in the instant case, M.O.1 TVS 50, was actually found nearby the dead body; that P.W.8 also came to know about the same; but, he has not gone to the police station to give a complaint or taken any steps for recovery of the same; and that this would also tell upon the evidence of P.W.8. 7.Added further the learned Counsel that the confession and recovery were nothing but false and cooked up documents; that M.O.2 was the gunny bag, and M.O.5 was a nylon rope; that pursuant to the confession, both of them were recovered; but, M.O.5 was not sent for analysis; that M.O.2 was sent only on 19.8.2004; that there was actually human blood found; but, so long as the test report would not speak about the tallying of blood group, it cannot be made use of by the prosecution; that the evidence that was placed before the trial Court was not only feeble, but also weak; that the evidence did not indicate anywhere the nexus of the accused with the crime in question; but, the trial Court has taken an erroneous view, and hence he is entitled for acquittal. 8.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9.It is not in controversy that the dead body of one Pavayammal, the mother of P.W.1, was found. Following the registration of the case under Sec.302 IPC by P.W.14, the inquest was made by the Investigator, P.W.16. Then the dead body was subjected to postmortem by P.W.10, the Doctor. He has given his opinion that the deceased died of asphyxia due to strangulation. The fact that she died out of homicidal violence was never disputed by the appellant before the trial Court, and hence the trial Court was correct in recording so. 10.In order to substantiate the fact that it was the accused who caused her death by causing asphyxia, the prosecution had no direct evidence to offer, but rested its case upon circumstantial evidence. It is not that this Court is unmindful of the caution made by the settled principles of law that in a given case like this, the prosecution must place and prove all necessary circumstances which should constitute a chain without a snap, apart from pointing to the hypothesis that except the accused no one could have committed the offence. Even after this test is applied, this Court is satisfied that the prosecution has proved the case beyond reasonable doubt. P.W.1 is the son of Pavayammal. He has categorically deposed that the accused has borrowed money from her in 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 to jail number of occasions and if demand was made, he would finish her off. This part of the evidence of P.W.1 stood fully corroborated by the evidence of P.W.4. It would be quite clear that Pavayammal has lent money to the accused in the past, and he did not make repayment of the same. Now the contention put forth by the learned Counsel for the appellant is that Ex.P7 was the promissory note, and it was recovered from one Valli, the daughter of the deceased; that P.W.11 an attesting witness, was examined; that according to him, the amount borrowed was actually Rs.12,000/- and not Rs.8000/-, and it was also borrowed from Valli and not from the deceased; and that if this document is looked into, the evidence of P.W.1 does not seem to be correct. However, as far as the borrowal of money from Pavayammal by the accused was concerned, the evidence put forth by the prosecution would suffice in the considered opinion of the Court. There is no witness examined to the effect that anybody has witnessed the occurrence. But, the learned Additional Public Prosecutor brought to the notice of the Court the following circumstances which would be indicative of the complicity of the offender namely the appellant/accused. 11.Firstly on the date of occurrence that was on 20.2.2004 at about 11.00 P.M., the accused was proceeding with a gunny bag in a TVS 50. P.Ws.6 and 7 intercepted him and questioned about the gunny bag and where he was moving that time in TVS 50. The accused did not answer, but fled away. From the evidence of P.Ws.6 and 7 it would be quite clear that they belonged to the same village, and they knew the accused. Under the circumstances, there is no reason or circumstance noticed by the Court to disbelieve the evidence of P.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 at about 8.00 P.M. on 20.2.2004, the accused came to him and asked for the TVS 50 since he was to go to Omalur and he would bring it in the next morning, and he gave it to the accused; but, he did not bring it 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 the brother-in-law of the accused. There is no reason why he should come forward to give evidence in a case of murder like this against his own brother-in-law. That apart, this TVS 50, M.O.1, was identified by P.Ws.6 and 7 in Court. This TVS 50 was actually found nearby the dead body in the field in the gunny bag. Now the evidence of P.Ws.6 and 7 to the fact that the accused went along with the gunny bag in the TVS 50 which was lent by P.W.8 at about 8.00 P.M. on 20.2.2004, would clearly be indicative of the fact that the accused was carrying the dead body in the gunny bag in TVS 50 which belonged to P.W.8. Under the circumstances, it is for the accused to explain how he happened to carry the dead body of the deceased. In a given case where the prosecution rested its case on circumstantial evidence and when a particular link is missing and if that link is within the special knowledge of the accused, it is for him to explain the circumstance, and if the accused suppresses the circumstance 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 the instant case, how he caused the death and how he happened to carry the dead body, it is for the accused to explain; but, he has not come forward. 13.Added circumstances are that on the arrest of the accused he gave a confessional statement which was recorded in the presence of P.W.12 and his Assistant. Thereafter he took the police personnel and identified the place where he committed the murder of Pavayammal. Added further, the recovery of M.O.5, nylon rope, pursuant to the confessional statement. This confessional statement leading to the recovery of a material fact namely the place of occurrence and also the weapon of crime would indicate the nexus of the accused with the crime. Thus the evidence adduced by the prosecution, in the considered opinion of the Court, would suffice pointing to the guilt of the accused and that except himself no one could have committed the offence. In view of the above, the contentions put forth by the learned Counsel for the appellant, in the considered opinion of the Court, do not carry any merit whatsoever. 14.In the result this criminal appeal must fail, and accordingly, it is dismissed sustaining the conviction and sentence imposed by the trial Court. nsv Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1.The Principal Sessions Judge Salem 2.The Inspector of Police Omalur Police Station Salem District 3.The Public Prosecutor High Court, Madras. 4.The District Collector, Salem. 5.The Director General of Police, Chennai. AKR(CO) SR/14.8.2009 CRL.A.No.762 of 2008 https://hcservices.ecourts.gov.in/hcservices/