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2006 DIGILAW 193 (MAD)

State v. Maruthamuthu & Another

2006-01-30

A.R.RAMALINGAM, M.KARPAGAVINAYAGAM

body2006
Judgment :- (Criminal Appeal against the Judgment and conviction dated 1.11.2001 made in S.C.No.17 of 2001 on the file of the Additional District Sessions Judge cum Chief Judicial Magistrate, Perambalur.) Ar. Ramalingam, J. Respondents/accused viz., Maruthamuthu and Selvaraj have been tried for the charges under sections 302, 404 IPC, section 302 read with section 109 IPC, section 404 read with section 109 IPC and section 413 IPC and acquitted from all the charges by the Additional Sessions Judge cum Chief Judicial Magistrate, Perambalur in S.C.No.17 of 2001. Aggrieved against such acquittal, the State/Public Prosecutor has filed this appeal. 2. Brief facts leading to filing of this appeal by the State/Public Prosecutor can be stated as follows:- PW1 viz., Muthuraj is the husband of the deceased Rajammal. They were living at Thuraimangalam village within the police limit of Perambalur. PW2 viz., Ayyammal is also a resident of Thuraimangalam village and she has to go to her field through the field of Rajammal. On 4.1.1999, the deceased Rajammal went to her field for the purpose of washing clothes and irrigation. At 9.30 am on the same day, PW2 while going to her field was able to see the deceased Rajammal washing her clothes and she had conversation with Rajammal for few minutes and came back to the house. At that time, PW2 was able to see the accused standing in the field of the deceased and nearby the well where the deceased was washing her clothes. Subsequently, at 12.30 pm, one Duraisamy informed PW1, the husband of the deceased that Rajammal was floating in his well. On getting this information, PW1 rushed to the well along with PW3 viz., one Prabu and one Balakumar and happened to see his wife floating in the well. Thereafter, PW1, with the help of PW3 and Balakumar, brought out the deceased from the well and found that jewels wore by the deceased were missing from the body of Rajammal and thereby suspected that somebody should have murdered his wife for want of jewels. 3. Then, PW1 gave complaint to PW4, Gopal, the Village Administrative Officer and the said Gopal, after making endorsement in the complaint marked as Ex.P1, sent the same to the police. 3. Then, PW1 gave complaint to PW4, Gopal, the Village Administrative Officer and the said Gopal, after making endorsement in the complaint marked as Ex.P1, sent the same to the police. On receipt of complaint Ex.P1, PW9, viz., one Sambasivam, Sub Inspector of Police registered a case under sections 302 and 379 IPC and prepared printed FIR marked as Ex.P8 at about 2.30 pm and sent the same to his superiors. PW10 viz., Ramachandran, Inspector of Police, after receiving the said FIR, visited the scene of occurrence and prepared observation mahazar marked as Ex.P3, rough sketch marked as Ex.P9 and conducted inquest upon the dead body, prepared inquest report marked as Ex.P10 and then sent the dead body for post mortem. PW8 viz., Dr.Kittappa, attached to Government Hospital, Perambalur conducted post mortem and issued post mortem report marked as Ex.P7 with opinion that the said Rajammal would have died of Asphyxia due to strangulation. 4. Thereafter, PW10, during the investigation, arrested the accused Maruthamuthu on 30.6.1999 and recorded his confessional statement and recovered from his pocket the jewels marked as M.Os.1 to 5 besides some other properties concerned with other crime numbers and remanded the accused for judicial custody. Then, the subsequent investigating officer viz., Inspector of police PW11 by name Syed Mohamed made arrangements for conducting identification parade by the Judicial Magistrate viz., PW7 Elangovan and identification parade was conducted on 13.11.1999 wherein PW2 Ayyammal identified the accused correctly. Then PW12 another Inspector of Police viz., Ravichandran completed the investigation and filed charge sheet against both the accused. 5. For the prosecution, 12 witnesses were examined and 16 Exhibits were marked besides 5 M.Os. before the Trial Court and the accused was examined under section 313 Cr.P.C. and on such examination, both the accused have denied their complicity in the occurrence and no defence witness was examined on behalf of the accused though they have stated as if they have witnesses for them. After having considered the materials available, the Trial Court has found that the charges against the accused were not proved and consequently, acquitted the accused from all the charges. Such acquittal is the subject matter of this appeal. 6. After having considered the materials available, the Trial Court has found that the charges against the accused were not proved and consequently, acquitted the accused from all the charges. Such acquittal is the subject matter of this appeal. 6. Learned Additional Public Prosecutor, after taking us through the entire evidence, would contend that jewels belonging to the deceased have been recovered from the accused Maruthamuthu and they have also been identified by PW1, husband of the deceased which in turn would go to show that the accused Maruthamuthu alone could be the person who committed the murder of Rajammal and that PW2 has identified the accused during the identification parade inasmuch as PW2 is the person who last found the accused Maruthamuthu near the place of occurrence and the deceased and that the Trial Court has not properly appreciated the available cogent evidence and has chosen to acquit the accused which is liable to be set aside. We have heard the counsel appearing for the respondents/accused on these aspects. 7. As rightly pointed out by the counsel for respondents/accused, the accused Maruthamuthu, even though was arrested on 13.6.1999 by PW10, identification parade has been conducted by PW7 only on 13.11.1999 nearly after five months. It is also to be noted that in the meanwhile, remand period of the accused Maruthamuthu has been periodically extended and police custody also seems to have been taken. Further, the accused Maruthamuthu also seems to have made representation before PW7 that PW2 has already seen him and that section 161 statement of PW2 recorded by PW10 seems to have been sent to the concerned Judicial magistrate only on 4.5.2000 even though the same is said to have been recorded on 7.1.1999 itself. Therefore, counsel appearing for the respondents/accused would further contend that there is no cogent links or acceptable materials to establish that the accused Maruthamuthu alone could be the murderer as projected by the prosecution and that is why the Trial Court has chosen to acquit the accused Maruthamuthu. 8. After careful analysis of the entire evidence and other circumstances of this case, we are not able to accept that there is cogent evidence and links in a way to connect that the accused Maruthamuthu alone could be the person responsible for the death of Rajammal and thereby acquittal under section 302, as such, cannot be found fault. 8. After careful analysis of the entire evidence and other circumstances of this case, we are not able to accept that there is cogent evidence and links in a way to connect that the accused Maruthamuthu alone could be the person responsible for the death of Rajammal and thereby acquittal under section 302, as such, cannot be found fault. On the other hand, there is evidence of P.Ws.5 and 6 viz., Mani and an independent witness viz., Arangarajan, the Village Administrative Officer of Perambalur South showing that they are witnesses for recovery of jewels marked as M.O.s 1 to 5 by PW10 on 13.6.1999. There is no reason as to why the evidence of P.Ws.5 and 6 should be disbelieved and there could be no compelling need or necessity for these P.Ws.5 and 6 to give false evidence against the accused Maruthamuthu as if they are attestors to recovery of jewels or in favour of the police. Further, it is not the specific stand of the accused Maruthamuthu during the course of section 313 statement that all the jewels either belong to him or somebody else or those jewels were created by the police against him and instead the accused Maruthamuthu has simply stated that the evidence of P.Ws.5 and 6 is false. It is also to be noted that there is no specific suggestion in the cross examination of PW10 who has recovered the jewels from Maruthamuthu as if all the jewels marked as M.Os. 1 to 5 were created by PW10 himself or secured by some other means for the purpose of this case against the accused Maruthamuthu or those M.Os. belong to him independently and he is capable of owning such jewels, etc., except the bald and mere suggestion that there was no confession and there was no recovery. Therefore, in our considered view, the acquittal of the accused Maruthamuthu altogether does not appear to be justified and on the other hand, offence under section 411 IPC has been committed by the said accused Maruthamuthu and he is liable for conviction under section 411 IPC inasmuch as whoever dishonestly receives or retains any stolen property knowing or having reason to believe the same to be stolen property shall be punished with imprisonment for a term which may extend to two years with fine or with both (section 411 IPC). It is more so when the accused Maruthamuthu is not in a position to explain about his possession of such jewels marked as M.Os.1 to 5 at the time of his arrest. Therefore, the acquittal of the accused Maruthamuthu is set aside and he is convicted for offence under section 411 IPC and sentenced to undergo rigorous imprisonment for a period of two years. 9. Coming to the second respondent/accused viz., Selvaraj, we do not find any incriminating or implicating materials on the side of prosecution to establish that the said accused Selvaraj also has committed offence under section 302 read with 109 IPC, section 404 read with 109 and 413 IPC and consequently, the acquittal of the accused Selvaraj by the Trial Court has to be confirmed. 10. In the result, the acquittal of first respondent/A1 viz., Maruthamuthu is set aside and he is convicted under section 411 IPC and sentenced to undergo rigorous imprisonment for a period of two years and the acquittal of the accused Selvaraj is confirmed. The criminal appeal is allowed in part to the extent indicated above. It is reported that the accused Maruthamuthu is in prison in connection with some other case. However, if he is on bail, the Trial Court is directed to secure his custody to enable him to undergo the remaining period of sentence.