Case: Thimma Alias Thimma Raju Vs. State Of Mysore

2. The appellant was tried, along with Laxmamma (accused no. 2) wife of the deceased Govindappa and her mother Gangamma (accused no. 3) wife of late Mylappa. The two women were charged with abetment of murder and were acquitted by the trial court. We are not concerned with them m this appeal. There is no eye witness in the case and the courts below have accepted the prosecution story on circumstantial evidence. The question before us is whether the circumstantial evidence accepted by the courts below establishes the murder of the deceased by the appellant beyond reasonable doubt. The prosecution story may now be stated.3. The deceased, Govindappa, resident of Kommanal village in Shimoga Taluk worked asDelivery Agent in the postal department. He was attached to the post office at Kommanal and was in common parlance called a postman. G. Sangaiah (P. W. 1) resident of village Abbalagere worked as an Assistant School Teacher in Kommanal. The distance between the two villages is 13/4 miles. P. W. 1 also worked as Branch Postmaster in Kommanal and was called Extra Departmental Postmaster. According to him the duties of the deceased were to bring the postal bags from the M. M. S. Bus on the main road in the morning at about 8.30 a. m. and after the bags were opened by P. W. 1 to deliver the postal articles to their respective addresses. At about 4.30 p. m. he would return to the post office to take the postal bags to the Mall Service Bus. Six villages were attached to this post office. The deceased used to deliver postal articles in two groups of three villages each on alternate days. On July 21, 1967 at about 10 A. M. the deceased received the postal articles from P. W. 1 for delivering them to the addresses in villages Kittadal, Kunchenhalli and Bikkonahalli. The articles to be delivered included two registered letters addressed to Krishna Naika and Halanaika of Kittadal. At about 3.30 p.m. the deceased returned and told P. W. 1 that the addressees, having gone to their fields, were not in the village, and that he would again try to deliver the registered articles to them. The deceased took the postal bags from the post office for delivery to the Mail bus. He did not return to duty thereafter. As the deceased had been in the service of the post office for nearly 3 1/2 years, P. W. 1 did not suspect his bona fides. On July 22, 1967 P. W. 1 went to the house of the deceased but did not find him there. Thinking that the deceased might have been unavoidably held up somewhere P. W. 1 in addition to his own duties performed those of the deceased as well on that day. On July 23, P. W. 1 went to village Kittadal to inquire about the delivery of the registered articles to the addressees. There he learnt from Krishna Naika (P. W. 15) that on July 21, 1967 the deceased had delivered to him the registered article at about 6 p.m. P. W. 15 on being questioned by the court gave the time of delivery to be about 4 p. m. But this difference as to time, in the opinion of the trial court, was due to the fact that the witness had no precise idea of time. After having waited for another day on July 24, 1967 P. W. 1 reported to the Postal Inspector, Shimoga Circle about the disappearance of the deceased, Exhibitis this report. P. W. 1 informed. the Postal Inspector of the steps taken by him in his search for the deceased.Those steps included the inquiries made by him from the addressees of the registered letters which had been delivered by the deceased. P. W. 1 had looked at those registered letters and left instructions for their production when required. It was further reported that the receipts pertaining to the delivery of RL. No. 456/Udipi, and RL No, 825/Udipi, and the visit book had not been returned by the deceased, to the post office. A request was made by P. W, 1 for the appointment of someone in place of the deceased so that the registered articles received on the 24th and 25th July, 1967 be delivered to their respective addressees. The Postal Inspector was asked to visit Kommanal for making the necessary arrangements. This report reached the Inspector (S, W, Pawar, P. W, 2) on July 26, 1967 and he visited Kommanal on July 27, 1967. There he collected four Panchayatdars and examined Laxmamma, the wife of the deceased. The same day he submitted his report, Ex.tor of Police, Kasba Police Station, Shimoga, attaching with it a copy of the report of P. W. 1, and also a copy of the statement of Laxmamma. In this report all the relevant facts were stated. The important thing to be noted about this report is that according to it the deceased had two keys of letter boxes fixed at Kunchenhalli and Somanakoppa. The duplicate of these locks were, however, available with P. W. 1. This report was sent because, according to P. W. 2, neither the wife of the deceased nor anyone else from the village had reported to the police about the disappearance of the deceased. While investigation into the fact of disappearance of the deceased pursuant to this report was going on, it appears that Bheema Naika, (P. W. 3), resident of Kommanal while grazing his cattle near Ayanoor forest sensed some foul smell from a spot near, Korakalu. On going closer, he saw, what appeared to him to be, a human skeleton with Khakhi half pants, Khakhi shirt and belt and a pair of chappals. He got frightened and reported to the village patel about what he had seen. As it was late in the evening the patel did not go to the spot that day. The following morning, August 4, 1967, P. W. 3 took the patel (Shahkargowda, P. W. 12) and some others to the spot and showed them what he had seen. The patel then reported the matter to theof Police, Shimoga Taluk (Ex.Investigation then appears to have started for establishing the identity of the dead body, the cause of his death and, if his death was considered to be homicidal, who was the offender. As a result of the investigation the three accused persons as observed earlier, were sent up for trial.

Reasoning:
In so far as the question of identity is concerned, there can hardly be any doubt that the skeleton was that of the deceased. The Khakhi shirt, Ex. M.O, 1 and the half pant Ex. M. O. 2 have been identified by P. W, 1 as the uniform given to the deceased. The visit book (Ex. M.O. 5) is also proved by P. W, 1 to have been delivered to the deceased. The two postal acknowledgments entrusted to the deceased with the registered articles (Ex. M. O. 6) and the two duplicate keys (Ex. No. 3) of the locks of the post boxes at Kunchenhalli and Somanakoppa have also been identified and proved by P. W, 1. All these articles were recovered from near the dead body. This evidence leaves little doubt that the skeleton was of the deceased. Some doubt was sought to be created on the question whether the bones found at the spot were those of a human body. But on this point the testimony of Dr. Shambulingaswami, Assistant Surgeon, Mc Gann, Hospital, Shimoga (P. W. 26) is clear and it establishes beyond doubt that the bones found were those of a humanThis evidence, in our opinion, convincingly establishes that the deceased was the victim of grievous assaults as a result of which he died and the courts below were quite right in so concluding.It is in evidence that the deceased was last seen in the company of the appellant at about 4.30 p.m when the deceased had gone to deliver the mail bags to the bus. At about 3.30 p.m, according to P. W. 1, the deceased had gone to the post office and taken the postal bags to be delivered to the Mail Bus, M.M.S. Bus Service. He had also told the witness that he would again try to contact Krishna Naika and Halla Naika of Kittadal for delivering the registered articles. Chennabasappa (P. W. 16) has deposed that he saw Govindappa and the appellant delivering the mail bags to the bus after they had taken coffee in the hotel near the bus stop that evening. P. W. 9, the brother of the appellant who was also at the bus stop that evening saw the deceased and the appellant travelling in the same bus. Gangamma (P. W. 8), the wife of the brother of the deceased who lives in a portion of, the same house in which the deceased lived, has stated that she saw the deceased on Friday evening at about 4.30 p.m with the appellant going from their house towards the post office building. The appellant was at that time carrying an axe on his shoulder. The demeanour of this witness was described by the trial court as natural. Sulochana, an eleven year old daughter of the deceased appeared as P. W. 10 and stated that on Friday, the day her father disappeared, at about 4.30 p.m. he left the house to deliver the mail bags. At about 5 p.m. the appellant took an axe from her mother and proceeded towards the post office. At about 8. p.m. the appellant returned home. According to this witness four or five days earlier, the appellant had suggested to the deceased to accompany him to the forest area for bringing teak logs so as to be able to make some money. People of village Haramghatta required teak logs and the deceased, according to the suggestion, could earn at least Rs.15. The deceased first expressed his inability to spare time from his official duties but the suggestion having been repeated the deceased ultimately agreed. This witness, though being only 11 years old was not administered oath, created a favourable impression on the trial court as is obvious from the followingwitness gave her evidence without faltering or visible signs of hesitancy. She speaks clearly, precisely and straight to thetrial court also interrupted the witness in the middle of her testimony in order to satisfy itself, by breaking the continuity of the story, that she was not reproducing a tutored version. On going through her statement we are satisfied that she is a truthful witness and her evidence deserves to be accepted and was rightly accepted by the Courts below. There is, in our opinion, cogent and trustworthy evidence to support the conclusion of the Courts below that the deceased was last seen with the appellant a short time before his disappearance. Having upheld this conclusion, we may appropriately examine the appellants explanation. He has merely denied, by expressing his ignorance, that the deceased had been last seen alive with him. In fact he has simply described as false all the material allegations including that of his acquaintance with Laxmamma and that he used to stay in Kommanal. This bare denial without any explanation is not wholly unimportant.7. This takes us to the motive for the appellant to get rid of the deceased. There can be little doubt on the evidence on the record that the appellant had developed close intimacy with the wife of thethis evidence the motive on the part of the appellant to do away with the deceased isus it was contended that then said to have been made to P. W. 4 is inadmissible and in any event without corroboration in material particulars from independent source it is unsafe to act upon it. It was emphasised that P. W. 4 was at one stage of the investigation suspected of complicity in this murder and, therefore, he should be treated no better than an accomplice.In our opinion, this criticism is not justified. An unambiguous confession, if admissible in evidence, and free from suspicion suggesting its falsity, is a valuable piece of evidence which possesses a high probative force because it emanates directly from the person committing the offence. But in the process of proof of an alleged confession the court has to be satisfied that, it is voluntary, it does not appear to be the result of inducement, threat or promise as contemplated by Section 24. Indian Evidence Act and the surrounding circumstances do not indicate that it is inspired by some improper or collateral consideration suggesting that it may not be true. For this purpose, the court must scrutinise all the relevant factors, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it is made and finally the actual words used. In the case in hand it is quite clear that P. W. 4 is not a person in authority. There can thus be no question of any inducement, threat or promise rendering the confession irrelevant. Nor has any cogent reason been suggested why the appellant should have made an untrue confession to P. W. 4 within 24 hours of the disappearance of the deceased. On the other hand, the appellant appears to have been impelled by some inner urge to take the assistance of P. W. 4, his real nephew, to go to the place of occurrence to see as to what had happened to the dead body of his victim. Such behaviour cannot be considered unnatural. The confession appears to us to be free from any taint which would throw suspicion on its voluntary character and it has a ring of truth in it. The fact that during the investigation P. W. 4 was suspected of being involved in the murder would also not cast any doubt on the voluntary character of the confession or on its true nature because it is the knowledge of P. W. 4 derived from this very confession which perhaps invited suspicion on him. We do not consider this to be a cogent ground for holding that P.W. 4 had any motive to concoct the story of confession. This confession is, therefore, admissible in evidence and being true deserves to be acted upon. The words used are quite clear and admit of no doubt of the appellants guilt. And then through the evidence of P. W. 4 does not need any corroboration we find that corroboration in material particulars is forthcoming on the record. The existence of the dead body and all the other articles at the place where they were later found and the evidence of Basappa (P. W.13) which proves the visit of the appellant and P. W. 4 to the spot on Saturday following the disappearance of the deceased furnish strong corroboration. The High Court was thus quite right in relying on theconfession made to P. W. 4. The confessions said to have been made to P. W. 31 and to Abdul Rahman (P. W. 22) stand on a different footing. Both the Courts below have not considered it safe to rely on these confessions and we do not find any sufficient reason for disagreeing withappears to us that when P. W. 4 was suspected of complicity in this offence he would in all probability have disclosed to the police the existence of the dead body and the other articles at the place where they were actually found. Once a fact is discovered from other sources there can be no fresh discovery even if relevant information is extracted from the accused and Courts have to be watchful against the ingenuity of the investigating officer in this respect so that the protection afforded by the wholesome provisions of Sections 25 and 26 of the Indian Evidence Act is not whittled down by the mere manipulation of the record of case diary. It would, in the circumstances be somewhat unsafe to rely on this information for proving the appellants guilt. We are accordingly disinclined to take into consideration this statement.11. The trial Court and the High Court have also been influenced by the fact that the appellant had absconded after September 1, 1967 when the police got suspicious of his complicity in this offence. It is true that the appellant did make himself scarce with effect from September 1, 1967 till he was arrested on September 5, 1967 and this conduct is relevant under Section 8 of the Indian Evidence Act and might well be indicative to some extent of guilty mind. But this is not the only conclusion to which it must lead the Court. Even innocent persons may, when suspected of grave crimes, be tempted to evade arrest: such is the instinct ofin an average human being. We are, therefore, not inclined to attach much significance to this conduct on the peculiar facts and circumstances of this case.12. In this case the appellant being a pauper was provided with counsel at State expense in the trial Court. The entire prosecution case depends on circumstantial evidence and the dead body was actually recovered in a decomposed state when it was not capable of identification. In view of these pecullar features we undertook to examine the evidence ourselves, a course which this Court as a matter of settled practice, does not ordinarily adopt. We are satisfied that the evidence on the record establishes the appellants guilt beyond reasonable doubt and the Courts below were quite right in convicting him. On the question of sentence also we do not find any cogent ground for interference.