Research › Search › Judgment

Madras High Court · body

2005 DIGILAW 1660 (MAD)

Nagaraj v. State rep. by Inspector of Police

2005-10-05

M.KARPAGAVINAYAGAM, S.R.SINGHARAVELU

body2005
Judgment :- S.R. Singharavelu, J. Nagaraj, the appellant was convicted by the trial Court (Principal Sessions Court, Salem) for an offence under Section 302 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for three months. Challenging the same, this appeal has been filed. 2. The short facts leading to the conviction are as follows:- (a) Deceased Shanmugam was doing javuli business. Accused was associated with him as Commission Agent. On 24.07.2000, the deceased Shanmugam and accused went to Mari Chetty, Burgur (P.W.3) and sought for some loan. When he expressed his inability, the accused and deceased left the place stating that they are going to Bangalore. On the same day, they went to P.W.4 Rajammal, mother of the deceased and the deceased informed his mother that they are going to Salem. (b) On 25.07.2000, they met P.W.2 Senthil, a relation of the deceased at the javuli shop of Veeravel, where P.W.2 was employed. Veeravel did not purchase clothes from Shanmugam. On 25.07.2000 at 9.30 am deceased Shanmugam and accused went to Sampathkumar Lodge and got room No.115. After occupying the room, they left out and returned in about 10 minutes. At 11.00 am P.W.1 saw the accused alone going out of the room locking the same. Thereafter, P.W.1 when enquired, the accused did not hand over the key and left the place. That room was continued to remain locked. (c) On 27.07.2000, foul smell emanated from that room. Because the room was locked, nothing could be found. On 28.07.2000, P.W.1, room boy informed the Manager and with the help of master key, the Manager opened the room and found the deceased with the head injuries in the bath room. The Manager of the lodge gave Ex.P-14 written complaint to P.W.10, Inspector of Police, Salem Town at 12.00 Noon on 28.07.2000. Thereupon, a case under section 302 IPC was registered in Crime No.489 of 2000 at Salem Town Police Station. Ex.P-16 is the printed first information report prepared by P.W.10 Inspector of Police. (d) P.W.10 Inspector of Police taken up investigation and inspected the scene of occurrence, prepared Ex.P-2 observation mahalar and Ex.P-17 rough sketch of the scene of occurrence. P.W.4 Rajammal, mother of the deceased identified the deceased. (e) P.W.10, Inspector recovered M.O.1 blood stained cement plaster piece and M.O.2 sample cement plaster piece under Ex.P-3 Mahazar. (d) P.W.10 Inspector of Police taken up investigation and inspected the scene of occurrence, prepared Ex.P-2 observation mahalar and Ex.P-17 rough sketch of the scene of occurrence. P.W.4 Rajammal, mother of the deceased identified the deceased. (e) P.W.10, Inspector recovered M.O.1 blood stained cement plaster piece and M.O.2 sample cement plaster piece under Ex.P-3 Mahazar. He examined the panchayatdars and held inquest over the body of the deceased. Ex.P-18 is the inquest report. Thereafter, he handed over the body to P.W.8 Head Constable along with Ex.P-5-requisition for post mortem examination. (f) On receipt of the requisition, P.W.7 Doctor Vallinayagam conducted autopsy on the body of the deceased and found the following four injuries. (i) lacerated injury over left parietal region; (ii) lacerated injury over left temporal region; (iii) contusion over the occipital region; and (iv) fissured fracture over left parietal bone extending on to left temporal bone. He opined that the deceased died due to head injuries. Ex.P-6 is the post mortem certificate. P.W.8 Head Constable recovered blood stained clothes of the deceased M.Os.3 and 4 under Ex.P-7 Form 95. Ex.P-10 is the Chemical analysis report and Ex.P-11 is the serology report and they would show that blood group of deceased Shanmugam is that of ‘B’ blood group, which was detected in M.O.3. Human blood group was detected in the cement plaster pieces recovered. (g) The accused surrendered on 29.11.2001 before Judicial Magistrate, Palacode. The police took custody of the accused on 11.12.2001 and on interrogation, he gave a confession statement, which was recorded in the presence of P.W.6, Village Administrative Officer and one Basheer. The admissible portion of which is ExP-4. On 12.12.2001, during examination, P.W.1 identified the accused. After enquiry, the accused was sent to judicial custody. (h) After completion of the investigation, the charge sheet was filed against the accused for the offence under Section 302 IPC. (i) During the course of trial, on the side of prosecution, P.Ws.1 to 11 were examined; Exs.P-1 to P-18 were filed and M.Os.1 to 4 were marked. (j) When questioned under Section 313 Cr.P.C., the accused denied his complicity in the crime in question. He filed a written statement and according to him, he was threatened by the police in October, 2001 to come to Salem Town Police Station. Therefore, he surrendered before the said Court and denied having given any confession statement. (j) When questioned under Section 313 Cr.P.C., the accused denied his complicity in the crime in question. He filed a written statement and according to him, he was threatened by the police in October, 2001 to come to Salem Town Police Station. Therefore, he surrendered before the said Court and denied having given any confession statement. On the side of defence, Exs.D-1 and D-2 were marked and no witness was examined. (k) The trial Court, on analysis of the materials available on record, by accepting the case of the prosecution, concluded that the accused was guilty of the offence under section 302 IPC, and convicted and sentenced as aforementioned. Hence, this appeal. 3. Mr. R.V. Karthi, learned counsel appearing for the appellant would take us through the entire case and submit that the evidence available on record would not be sufficient to hold that the accused was guilty. He had also pointed out various infirmities in the case of prosecution. 4. We have heard the submissions of the learned Additional Public Prosecutor. We have given our consideration to the rival submissions. 5. The entire case would clinch upon the circumstantial evidence. The circumstances are, (i) that the deceased was last seen in the company of the accused. First, they went to Mari Chetty (P.W.3) on 24.07.2000 and were making mention of their going to Bangalore in connection with the sale of javuli. Again, on the next day, they met Rajammal (P.W.4), the mother of deceased, to whom they represented that in connection with the sale of javuli, they may go to Salem. On the next day, on 25.07.2000, both met Senthil (P.W.2), who was employed under Veeravel, a javuli shop owner. On that day, there was no purchase by Veeravel. However, P.W.2 saw the accused and deceased both together. It was on the same day, after engaging room No.115 in Sampathkumar Lodge at about 9.30 am upon booking the same for their accommodation, both were seen together lastly by P.W.1, Kandasamy, the room boy of the said lodge. Subsequently, P.W.1 saw only accused, leaving the room with its key after locking the same. It is only upon foul smell that emanated on 27.07.2000, Nagarajan, the Manager waited till the next day i.e.28.07.2000 and had opened the doors with master key available with him and then, found the dead body inside. Subsequently, P.W.1 saw only accused, leaving the room with its key after locking the same. It is only upon foul smell that emanated on 27.07.2000, Nagarajan, the Manager waited till the next day i.e.28.07.2000 and had opened the doors with master key available with him and then, found the dead body inside. It may not be possible that the body of the deceased could have been put inside after accused has locked the same on 25.07.2000 and found to have left the lodge, as witnessed by P.W.1. Thus, it can be found that the deceased was found to have been only in the company of the accused; (2) the body of the deceased was found in the bath room of room No.115 of Sampathkumar Lodge, as revealed in the Observation Mahazar Ex.P-2, sketch Ex.P-17 and as per the report of inquest Ex.P-18. In fact, Rajammal (P.W.4), the mother of deceased had identified the body that had been recovered from the said lodge; (3) the blood group of the deceased was found as 'B'; the Police Constable, Annamalai, Salem Town Police Station (P.W.8), who recovered the articles M.Os.3 and 4 from the body of the deceased after post mortem, had produced it under Form-95 (Ex.P-7). According to Ex.P-11, the serology report, those clothes contained blood stain of 'B' blood group. Further, the blood stained cement (M.O.1) that was recovered from the hotel room No.115 under cover of mahazar (Ex.P-3) by P.W.10 also found to have contained 'B' blood group; (4) The accused surrendered on 29.11.2001 and custody was taken on 11.12.2001. Thus, between 25.07.2000 and 29.11.2001, the accused was absconding. There was no proper explanation as to why he has suddenly absconded from that locality; (5) The accused could not explain about the disappearance of the deceased, with whose company the accused had been found last. In the questioning under section 313 CrPC, what the accused told was total denial and as if he never had any contact with the deceased. In the written statement filed by the accused under section 314 Cr.PC, it was said that he had no nexus with the deceased Shanmugam at any point of time nor did he have any connection in the cloth business with him. 6. In the written statement filed by the accused under section 314 Cr.PC, it was said that he had no nexus with the deceased Shanmugam at any point of time nor did he have any connection in the cloth business with him. 6. The learned counsel for the appellant pointed out the following infirmities; (1) Non-examination of Nagaraj, the Manager of Sampathkumar Lodge, who, in fact, has given the complaint through Ex.P-14. The explanation, that was offered on the side of prosecution, is that Nagaraj died and the copy of death certificate is also marked as Ex.P-15. (2) P.W.10, the Investigating Officer had not seized the lodge register containing relevant entry and receipt book for payment of advance of Rs.100/- either by deceased or by accused. The prosecution could have done it. But the failure to do so will not go to the root of the matter because it is not only the body of the deceased that was found from inside the rook No.115 of the said lodge; but also there was nothing for P.W.1 to falsely state as if deceased and accused came and stayed in the room. Further, during the course of cross examination of P.W.1, no suggestion was made as if the accused never happened to stay in the said lodge as contended by P.W.1. Endeavour was made to show that P.W.1 was not on duty in that hotel during the alleged time of occurrence. In this context, the natural evidence of P.W.1 becomes believable and so, the failure of recovery of lodge register and receipt book would not weaken the case of prosecution. (3) It was pointed out that there was no identification parade conducted. Identification parades are not primarily meant for the court. They are meant for investigation purpose. The object of conducting a test identification parade is two fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. In this case, no suspicion arises because there was failure to suggest P.W.1 in the course of cross examination as if accused never came and stayed in the said hotel on 25.07.2000. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. In this case, no suspicion arises because there was failure to suggest P.W.1 in the course of cross examination as if accused never came and stayed in the said hotel on 25.07.2000. P.W.1’s evidence is reliable as he was examined during inquest also. P.W.1, as per his evidence, happened to speak with the accused on 25.07.2000 while the latter was going out of the room after locking the same without leaving the key. Thus, P.W.1's evidence is trustworthy and his capacity to identify the accused is also noteworthy. (4) Absence of motive. There is no motive to show that the accused was inimical towards the deceased. (5) It was also pointed out that in spite of confession, no recovery was made. True that it is, Ex.P-4 may not become so much admissible since no recovery in pursuance thereof was made. Simply because the weapon was not recovered, the accused cannot be absolved of his guilt which is otherwise proved. 7. Now, we will see as to how the guilt was otherwise proved. As mentioned supra, it is a case based only upon circumstantial evidence. Catena of cases are there indicating that in a case of circumstantial evidence, there must be a chain of evidence so complete as to leave the reasonable ground and they must show in all human probability that the act must have been done by the accused and none but the accused. In the absence of direct evidence, where the guilt of the accused had to be established by circumstantial evidence only, the circumstances should be of definite tendency pointing towards the guilt of the accused and in their totality must unerringly lead to the conclusion that the offence was committed by the accused and none else. (Mahmood vs. State of U.P., ( AIR 1976 SC 69 ), Kansa Behera vs. State of Orissa (1987 L.W.Crl.460 (SC), State of Madhya Pradesh vs. Sanjay Rai (2004 Crl.L.J., 2006), Chandran vs. State of Kerala (1991 SCC (Crl.) 245 and Suresh vs. State ((2004) MLJ (Crl.) 1046). 8. Regarding the failure to prove motive, mention should be made that it is somewhat different from absence of motive. 8. Regarding the failure to prove motive, mention should be made that it is somewhat different from absence of motive. Suppose, motive was available and when it becomes not proved, then it may injure the case of prosecution as was held in Devendran, Pondicherry vs. State ((2004) MLJ (Crl.)568). In that case, it was contended that on the complaint of 1st accused, the deceased and P.W.5 were arrested and released on bail and as such 1st accused had the motive against the deceased. As there was no element of proof of the premises upon which motive was based, it was held in that case that even though motive was available, it had not been substantiated by evidence and therefore, it was held that motive which played a dominant role in case of circumstantial evidence when not proved will injure the case of prosecution. But, here is a case where there was total absence of motive or hidden motive. If circumstances relied upon by the prosecution, were proved beyond doubt in order to form a chain and that each link is independently proved to form a chain indicating the guilt of the accused, then the absence of the motive would not hamper the conviction. This was so held in Sahadevan vs. State (2003 SCC (Crl.) 382). 9. In that case, it was held as follows:- “It is then contended on behalf of the appellants that the police officers have no motive whatsoever to have committed the murder of Vadivelu and the prosecution case being one of circumstantial evidence, the benefit of doubt should be given to the appellants. We do not think it is possible to accede to this request of the appellants either. This Court had held in the case of circumstantial evidence that if the circumstances relied upon by the prosecution are proved beyond doubt, then the absence of motive would not hamper a conviction”. 10. In this context, it is noteworthy to reproduce the following observation made in Subedar Tewari vs. State of U.P.and others (1989 SCC (Crl.) 218. “The evidence regarding existence of motive which operates in the mind of an assassin is very often not within the reach of others. The motive may not even be known to the victim of the crime. The motive may be known to the assassin only and to no one else. “The evidence regarding existence of motive which operates in the mind of an assassin is very often not within the reach of others. The motive may not even be known to the victim of the crime. The motive may be known to the assassin only and to no one else. A crime can take place even without pre-meditation or pre-planning in the context of a particular situation, on the spur of the moment. In the present case, it is not possible to pronounce on the question as to what exactly was the motive and what exactly triggered or sparked off the incident resulting…” Thus, the absence of motive cannot be equated to failure to prove the motive. In this case, it is a hidden motive and therefore, no expectation of proof of motive will arise. However, the very abscondance of the accused between the date of occurrence viz., 25.07.2000 till he surrendered on 29.11.2001 will throw much light upon the hidden motive between the accused and the deceased. Thus, the abscondance is a strong circumstance, which buttress the prosecution case of homicide against the accused, that will also dispel the statement of accused made under section 314 Cr.PC as if there was no connection of any sort between himself and deceased and especially, in the presence of trustworthy evidence of P.W.1 and also in the absence of suggestion to P.W.1 as if the accused never stayed in the said Sampathkumar Lodge on the date of occurrence along with the accused. It is in this context, the unexplained abscondance of accused will make his guilt to surface. There is a burden of proof on the part of the accused to explain as to why he absconded, which he did not discharge. Regarding the existence of such onus, there are case laws. 11. In the decision reported in Kumar vs. State ((2004) MLJ (Crl.) 894), it was found that when once prosecution case established that there was abduction of the deceased by the accused and he was found murdered within short time of abduction, then the irresistible presumption is that the accused murdered the deceased in the absence of any explanation. 12. 11. In the decision reported in Kumar vs. State ((2004) MLJ (Crl.) 894), it was found that when once prosecution case established that there was abduction of the deceased by the accused and he was found murdered within short time of abduction, then the irresistible presumption is that the accused murdered the deceased in the absence of any explanation. 12. It was so held in Sucha Singh vs. State of Punjab ( (2001) 4 SCC 375 ) that when the abductors withheld the information which was within their exclusive knowledge as to what happened to the deceased after they were abducted, a presumption in the circumstances of the case can be drawn that the abductors were responsible for murder of the deceased. 13. It was further held in Sahadevan ..vs.. State (2003 SCC (Crl.)382) that it is obligatory on the accused to explain the circumstances in which the missing person and the accused parted company. Thus, there is onerous duty on the part of accused to explain as to in what circumstances he had parted away with the deceased with whom, according to the evidence of P.W.1, he was found staying last. 14. Regarding the last seen theory as mentioned earlier, it gets the vital role on the ground of trustworthy evidence of P.W.1. Learned counsel relied upon the decision in Anant Bhujangrao Kulkarni vs State of Maharashtra ( AIR 1993 SC 110 ), wherein it was held that the accused could not be convicted merely on circumstances of last seen. In that case, the recovery of body of the deceased was found to have been made somewhere nearer to his occupation and the recovery of his watch stood unproved and it is in that context, the only adverse circumstance of accused giving evasive answer for the whereabouts of the deceased was not considered to loom large indicating the guilt of accused. 15. It is not only the last seen theory i.e. a solitary piece of evidence constituting only a link but also the other links, which are available in this case in order to form a chain indicating the guilt of the accused. 15. It is not only the last seen theory i.e. a solitary piece of evidence constituting only a link but also the other links, which are available in this case in order to form a chain indicating the guilt of the accused. The other links as noted above are the tallying of deceased group of blood with the sample earth taken from the bath room of room No.115 of Sampath Kumar Lodge and also the clothes (M.Os.3 and 4) that were found on the body of the deceased; besides the last seen theory proved by the evidence of P.Ws.2 to 4, yet another important evidence of P.W.1, indicating or pointing out the suspicious circumstances under which the accused was found to have left the room locked without leaving the key and the subsequent finding of the body of the deceased inside the said room, which was left locked by the accused, do throw light upon the guilt of accused. 16. This indication gets strengthened by the subsequent conduct of abscondance of accused and also untrustworthy answer given by the accused under sections 313 and 314 Cr.P.C as if he is an utter stranger to the deceased. It is not an evasive answer as contemplated in AIR 1993 SC 110 , but is an answer of endeavour to escape which along with the other suspicious links would constitute a chain in clothing the guilt upon the accused. Thus, the totality of circumstances do form a chain containing many constituent links indicating only the guilt of the accused. 17. In view of the above discussion, this criminal appeal is dismissed confirming the conviction and sentence imposed on the Appellant.