Eswaran @ Mareeswaran @ Kaleeswaran vs State

M. Chockalingam, J.—This appeal challenges the judgment of the learned Additional Sessions Judge (Fast Track Court No. 1), Thoothukudi made in S.C. No. 332 of 2006 dated 08.06.2007, whereby the appellant stood charged, tried and found guilty under Sections 302 (2 counts), 379 and 201 of the Code and awarded punishment as follows:

The accused was sentenced to undergo double life imprisonment and to pay a fine of Rs. 2,000/- each, in default to undergo 3 months R.I. each for the offence u/s 302 (2 counts) and sentenced to undergo two years rigorous imprisonment for the offence u/s 379 IPC and also sentenced to undergo 3 years rigorous imprisonment for the offence u/s 201 IPC. The sentences are to run concurrently.

The shorts facts, necessary for the disposal of this appeal can be stated thus:

a) P.W.1 Annadurai is the Village Administrative Officer of Kurumalai. When P.W.3 Karuppasamy and others went to attend the nature call, they found two dead bodies namely of female and a child, being buried. They informed to P.W.18 Marichamy, Village President, who in turn informed to P.W.2 Vanamoorthy, the Village Assistant. P.W.2 informed to P.W.1, Village Administrative Officer of Kurumalai. On hearing this, P.W.1 went to the place and verified the same, and then he proceeded to the respondent Police Station, where P.W.29 Uthiravasagam was Sub Inspector of Police during the relevant time.

b) On 28.11.2005, at about 8.00 a.m., P.W.1 gave a complaint Ex.P.1. On the strength of Ex.P.1, a case came to be registered by the respondent Police Station in Cr. No. 159 of 2005 u/s 174 Cr.P.C. and the F.I.R. Ex.P.39 was despatched to the Court along with Ex.P1.

c) On receipt of the copy of F.I.R., P.W.31 Murugesan, Inspector of Police, took up the investigation, proceeded to the scene of occurrence on the same day at 8.30 a.m., made spot inspection in the presence of witnesses and prepared Ex.P.2 observation mahazar and Ex.P.42, the rough sketch. Further, he recovered bloodstained earth and sample earth under a cover of mahazar from the place of occurrence and enquired some witnesses.

d) The investigator gave a requisition to Tahsildar, who was examined as P.W.15 Antonyraj, to exhume the dead bodies. On receipt of the requisition, P.W.15 went over to the place of occurrence, caused exhumation of the bodies and conducted inquest on the dead bodies of both the deceased in the presence of the witnesses and the panchayatdars and prepared inquest reports, marked as Ex.P.30 series. Then, the Investigator recovered the materials objects from the place of occurrence.

e)Following the same, both the dead bodies were sent to the Government Hospital for the purpose of autopsy. P.W.10, the Doctor, attached to Kovilpatti Government Hospital, on receipt of the requisition, conducted autopsy on the dead bodies of the deceased and issued Ex.Ps.13 and 14, the post-mortem certificates respectively, for the female body and the body of the child, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained.

f)The case was altered to Section 302, 379 and 201 I.P.C. Pending investigation, the investigator examined the witnesses and recorded their statements. Then the dead bodies were actually verified by P.Ws.4 and 5 with the photographs and found the dead bodies of one Meena and her male child. On 19.12.2005 at about 04.30 p.m, the investigator arrested the accused. He gave a confessional statement voluntarily and the same was recorded in the presence of P.W.25 Vellapandi and one Paulraj, Thalayari. The admissible part of the said confession was marked as Exs.P.35, consequent upon the same the accused produced M.O.18 Gold Chain, which was worn by the 1st deceased at the time of the occurrence and which was robbed by the accused. The investigator recovered the same under a cover of mahazar Ex.P.34. Then, he produced M.O.22, Cycle, M.O.21 Spade, M.O.24 Shirt, and M.O.23 Lungi, which were recovered under a cover of mahazar Ex.P.36. Then, the accused was sent for judicial remand. The investigator examined the witnesses and recovered the copy of the receipt for the pledged jewels by the accused after the occurrence and the copy of the receipt in respect of the redeemed jewels two days prior to the arrest of the accused, from the Co-operative Bank.

g) A requisition was given to the Chief Judicial Magistrate for conducting Test Identification Parade for the accused. Accordingly, P.Ws.8,16 and 9 participated in the Test Identification Parade conducted by P.W.14, Judicial Magistrate, before whom, they identified the accused/appellant. Test Identification Parade proceeding is marked as Ex.P.24.

h) All the material objects recovered from the place of occurrence and from the dead body of the deceased and the Material Objects recovered from the accused, were sent for chemical analysis pursuant to a requisition, Ex.P.15, given by the Investigating Officer to the concerned Judicial Magistrate and reports viz., Ex.P.17 and 18, the Chemical Analyst''s reports and Ex.P.19, the Serologist''s report were received. On completion of the investigation, the Investigating Officer has filed the final report before the concerned court.

The case was committed to the court of sessions, and necessary charges were framed, and the case was taken up for trial. In order to substantiate the charges, at the time of trial, the prosecution examined 31 witnesses and relied on 45 exhibits and 25 M.Os. On completion of the evidence on the side of the prosecution, the accused/appellant was questioned u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses. They flatly denied them as false. After hearing the arguments of the counsel and looking into the materials available, the trial court took the view that the prosecution has proved the case beyond reasonable doubt, found him guilty and awarded the punishments as referred to above. Under these circumstances, this criminal appeal has arisen at the instance of the accused/appellant herein.

Advancing arguments on behalf of the appellants, Mr. M.Ramasubramanian, learned Counsel appearing for the appellant, in his sincere attempt of assailing the judgment of the Court below, made the following submissions:

a)According to the prosecution, the occurrence has taken place on 28.11.2005 at 1.00 p.m. The occurrence has taken place nearby the road side and both the bodies were buried. According to the P.W.7, actually, the place of occurrence was on the way to Kurumalai temple and it was being Sunday, number of persons were actually moving and if to be so, such an occurrence could not have taken place at all.

b) The learned Counsel appearing for the appellant further added that the occurrence has taken place within 500 meters from the village and hence it is highly improbable for committing such double murders and burying the bodies in day light. He further added that insofar as the prosecution proceeding with the story that he developed illicit intimacy with the first deceased, there were few witnesses examined to put forth the fact, but, they were only hearsay and they did not have the direct knowledge and thus, the prosecution miserably failed to prove the fact.

c) The learned Counsel appearing for the appellant further added that insofar as P.Ws.8 and 16, they were examined to speak about the last seen theory, who are the husband and wife respectively. They could not have seen the appellant and deceased. From their evidence, it would be quite clear that they got down from the bus together. He added further that so far as the recovery of M.O.18, Gold chain is concerned, no independent witnesses were examined and the Village Administrative Officer was examined from some other village and this could not be relied on. So far as the P.Ws.4 to 7 are concerned, they were all close relatives to each other. As far as M.O.18 Gold chain is concerned, there is no evidence that the same belonged to or it was worn by the deceased during the relevant time. The prosecution examined the witnesses from the Co-operative bank as if M.O.18 gold chain was pledged with the bank and it was redeemed just two days prior to the arrest of the accused and these are all cooked up story since no documents were brought before the trial Court either to prove the fact as to the pledge or redemption.

d) The learned Counsel appearing for the appellant further added that the prosecution in the absence of any direct witnesses, should have placed circumstantial evidence pointing to the nexus of the crime with the accused, but miserably failed and under the circumstances, the trial Court should have acquitted the accused, but found him guilty erroneously and hence the appellant is entitled for acquittal in the hands of the Court.

The court heard the learned Additional Public Prosecutor on the above contentions and paid its anxious consideration on the submissions made and also scrutinized the materials available.

It is not in controversy that the dead bodies of the first deceased and her child, the second deceased were found by P.W.1 Village Administrative Officer, who gave a complaint Ex.P.1 to P.W.29, the Sub Inspector of the respondent police and on the strength of the Ex.P.1, a case came to be registered originally u/s 174 Cr.P.C. and after the inquest was made by the Tahsildar, the bodies were subjected to postmortem by the Medical Officer. Following the postmortem certificates, the case was altered into Section 302, 379 and 201 I.P.C. Insofar as the cause of death put forth by the prosecution, it was never disputed by the appellant before the trial Court or before this Court also. Hence there is no impediment for this Court to record that both the deceased died out of homicidal violence.

In order to substantiate that it was the accused, who caused the death of both a female and also a child after robbing M.O.18, gold chain and buried both the dead bodies, the prosecution rested its case exclusively on the circumstantial evidence. It is not that this Court is unmindful to the caution made by the settled principles of law that in a given case like this, the prosecution must place and prove the necessary circumstances pointing to the guilt of the accused without a snap and also pointing to the hypothesis that except the accused no one could have committed the offence.

In the instant case, this Court is thoroughly satisfied that it was the accused/appellant who has committed the offence of double murders and also robbed the jewels in view of the following circumstances, and none else.

P.Ws.8 and 16 are the husband and wife respectively. According to them, they have seen both the accused/appellant and the first deceased and her child namely, the second deceased, getting down from the bus, near the place and at the time of occurrence. After some time, P.W.9 has seen the accused/appellant alone boarding the bus, but at that time both the deceased were not found along with him. In the meantime, the occurrence had taken place. All these three witnesses viz., P.Ws.8, 16 and 9 were actually taken to Test Identification Parade and they have identified the accused/appellant correctly and the identification parade was done by P.W.14 and identification proceedings were placed before the trial Court.

Now, the another clinching circumstance is the recovery of M.O.18, gold chain actually worn by the 1st deceased during the relevant time and so far as the gold chain is concerned, it was recovered from the accused at the time of his arrest, following the confession made by him, which was recorded in the presence of Village Administrative Officer. Thus the jewel M.O.18, which, according to the confessional statement, was pledged before the Co-operative Bank and redeemed by the accused/appellant just two days prior to his arrest. In order to verify the fact, the investigator has examined the bank official, who has also spoken to the fact that M.O.18 jewel was actually pledged by the accused and redeemed by him and in the considered opinion of this Court, recovery of the jewel M.O.18 from the accused, which was worn by the 1st deceased during the relevant time, would be pointing to the nexus of the accused with the crime.

Further, in the instant case, the clinching evidence as could be seen, is the last seen theory and also recovery of the jewel, which was worn by the 1st deceased and would be pointing that it was the accused, who actually caused the death of both the deceased.

Now, the contention put forth by the learned Counsel appearing for the appellant that there was no one to speak about the illicit intimacy, will not carry any merit whatsoever. Insofar as the identity of the deceased is concerned the prosecution has clearly proved through three witnesses. It is true that P.Ws.8 and 16 are husband and wife respectively, but on that ground alone, their evidence cannot be suspected. They are actually independent witnesses who found the accused/appellant along with both the deceased getting down from the bus. It is true that they were strangers and the accused was also a stranger to them.

Under these circumstances, the test identification parade becomes a must. Accordingly, it has been conducted, and the accused/appellant was identified as the person, who actually committed the murder and has robbed the jewel also and buried the dead bodies.

Under these circumstances, the prosecution is able to take steps and prove all necessary circumstances pointing to the nexus of the accused with the crime. The trial Court was perfectly correct in entering into the judgment of conviction and sentence. This Court is unable to notice anything to interfere in the judgment of the Court below either in respect of the factual or legal position. Accordingly, the findings of the trial court do not warrant any interference and the criminal appeal fails and the same is dismissed.