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PETITIONER: GOVINDASAMI

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT:       22/04/1998

BENCH: M.K. MUKHERJEE, SYED SHAH MOHAMMED QUADRI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T      M.K. Mukherjee, j.      This appeal  under Section  379 Cr.  P.C.  is  directed against  the  judgment  and  order  dated  September  2,1997 rendered by  the Madras High Court in Criminal Appeal No. 30 of 1998.  By the  impugned judgment  the High Court reserved the acquittal  of the  appellant of  five charges of murder, convicted him  thereof  and  sentenced  him  to  death.  The victims were  Nagamalai (elder  brother of  the  appellant’s father), his wife, two sons and a daughter. 2.   The prosecution  case briefly  stated is  as follows: - (I) On May 30, 1984 at or about 7.00 A.M. Sowndaram (P.W.2), a resident of village Kondayapalayam, in which Nagamalai and appellant also  lived, went  to the  house of  the former to fetch milk  as it  was her  daily wont.  Reaching there  she found him,  his wife,  two sons and a daughter lying dead in the front  yard of  their house  with bleeding  injuries  on their persons.  She rushed  back to  her house  and told her husband Kurukkal (  P.W.3) about  the macabre murders. P.W.3 then went  to the  house of  Nagamalai and,  having seen the dead bodies,  apprised his  co-villager Ramaswamy (P.W.1) of the incident. After a visit to the house of Nagamalai, P.W.1 went to  the nearby village Varapalayam and gave a report to Ramani  Marimuthu   (P.W.7),  their  Village  Administrative Officer, which  was recorded by him. In that report he first described what  he had  seen in  the house  of Nagamalai and then  stated   that  he  suspected  that  Govindaswami  (the appellant) and  his young  brother had committed the murders as there was a land dispute between them and Nagamalai. (ii)       P.W.  7 then left for village Kondayampalayam and after seeing  the dead  bodies went  to  Puliampatti  Police Station and submitted the report (Ex.p.1). On that report a  case was  registered and investigation taken up by Palanisamy (P.W.236),  the then  Circle Inspector of Police. He went  to the  house of  Nagainalal held  inquest upon the five dead  bodies and  sent them to the Government hospital, Sathyamangalam for  post-mortem examination.  He seized some articles from  the scene  of crime,  including a wrist watch with its broken chain (M.O.1). (iii)     On June  4, 1984 the investigation of the case was

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taken over by Shri Beeman (P.W. 27), an Inspector of Police. On that  day he  arrested the  appellant and  seized a blood stained lungi (M.O. 19) and a promissory note (M.O. 20) from his person  under a  memo (P.Ex. 8). Pursuant to a statement made by the appellant he then went to the house of Marimuthu (P.W. 14),  an astrologer  by profession,  in village Arasur and seized  a cycle  (M.O.  21)  and  gunny  bag  (M.O.  23) containing a torch light (M.O. 18) and an aruval, (M.O. 22), a heavy  sharp. cutting  instrument. The  aruval, lungi  and some other articles seized from the scene of crime were sent to the  Forensic Science  Laboratory (F.S.L.)  for  chemical examination. After receipt of report of such examination and on completion of investigation police submitted charge-sheet against the appellant. 3.   The appellant  pleaded not  guilty to  the charges  and contended that he was falsely implicated. 4.   That Nagamalai,  his wife,  two sons and a daughter met with homicidal  death in  front of their house stands proved by overwhelming evidence on record. Indeed, this part of the prosecution case  was not  challenged by  the defence. Apart from the  uncontroverted evidence of P.Ws. 1,2,3, and 7, all of whom  claimed to  have seen  the dead  bodies  of  the  5 persons lying  with bleeding  injuries  in  front  of  their house, the  evidence of  P.W.27, who  held inquest  upon the dead bodies,  proves that  fact. From  the evidence  of  the three doctors, namely, Dr. Ulaganathan (P.W.16) , Dr. Saroja (P.W. 17)  and Dr. marimuthu (P.W. 18), who held post-mortem examination upon  one or  the other of those dead bodies, we get that  each of them had a number of deep cut injuries all over their  bodies. While Nagamalai had 6 such injuries, his sons,  Moorthy   and   Balasubramanian,   had   12   and   4 respectively, his  wife Ponnathal  had 4 daughter Anbu Selvi had 2.  When shown  the aruval (M.O. 22), the doctors opined that all the injuries could be caused by such a weapon. From the evidence  of the  above witnesses  it is thus abundantly clear that  the 5 deceased met with homicidal death in front of the  their house  in the night between May 29 and May 30, 1984. 5.   The  pivotal   question  that   now   falls   for   our determination is  whether the  prosecution has  been able to conclusively prove  that the appellant is the perpetrator of the above  murders. In  absence of  any eye witness to prove the  same   the  prosecution   relied  upon   the  following circumstances;- (i) the appellant had a motive to commit the murders as  he was  having a boundary dispute with Nagamalal over their  properties and  two days prior to the murders he had a  quarrel with  nagamalai and his son Moorthy in course of  which   he  (the  appellant)  was  beaten  up.  Besides, Nagamalai coerced the appellant to sign a promissory note; (ii) from the  scene of  crime   a wrist watch with a broken chain (M.O. 1) belonging to the appellant was recovered; (iii)     at the  time of  his arrest  on June  4, 1984  the appellant was  found wearing a blood stained lungi (M.O. 19) and having a promissory note (M.O. 20) with him; and (iv) pursuant ‘o  the statement made by the appellant aruval (M.O. 22)  was recovered  from the  house of P.W. 14 on June 4,1984 and  it was  found to  be stained with human blood of group ’B’,  which was  also the  blood group  of some of the decease. 6.   On consideration  of the of the evidence adduced by the prosecution to prove the above circumstances the trial Court held that  none of  them stood  proved an,  accordingly,  it acquitted the  appellant. In  reversing the  findings of the trial  Court,  the  High  Court  held  that  all  the  above circumstances  stood   firmly  established  and  that  those

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circumstances  unerringly   pointed  to  the  guilt  of  the appellant. 7.   Mr. Ranjan Mukherjee, the learned counsel appearing for the appellant, first submitted that the reasons given by the trial Court for rejecting the relevant and material evidence of the  evidence of  the prosecution  were weightier and had not been  completely displaced  by the  High Court.  He next submit that,  in any case, the view of the evidence taken by the trial  Court was  also  a  reasonable  one.  In  such  a situation,  he  argued,  the  High  Court  should  not  have reversed the  order of  acquittal,  by  ignoring  the  well- settled principles  laid down  by this Court in this regard. he lastly  submitted that  even if  it was  assumed that the High Court  was justified  in so doing, it was not justified in imposing the sentence of death. 8.   As against  this Mr.  Pragasam, learned counsel for the State, submitted  that the  reasons given by the trial Court for discarding the entire prosecution evidence were patently untenable and  had been rightly dispelled by the High Court. According to  him the powers of the High Court to review the evidence and  reach its  own findings  in an  appeal against acquittal are as wide as those of the trial Courts. 9.   This being  a statutory appeal we have gone through the entire evidence  on record  keeping in view the judgments of the Courts  below. Our  such exercise  persuades us  to hold that each  of the  findings of  the trial Courts is patently wrong. 10.  Coming first  to the  motive, the  prosecution examined five witnesses  to prove  the same;  and they  are Ramaswamy (P.W.1),  Donnuswamy   (P.W.4).   Govindaswamy   (P.W.   5), Ramaswamy (P.W.  6) and  Ganesan (P.W. 8), the surviving son of the  deceased Nagamalai,  who at the material time was in Coimbatore. P.W.1,  who is  related to both the deceased and the appellant,  testified that  there were  disputes between them with regard to the boundaries of their land and that he and other  Panchayatdars attempted  to settle  the disputes. P.W.4 stated  that about  1-1/2 year before the incident the mother of the appellant complained to him about the boundary dispute and  grazing  of  cattle  and  that  he  and  others mediated  and   settled  the  dispute  before  the  date  of occurrence. Similar  is the  evidence of P.W.5. The evidence of P.W.8  in this  regard is  that due to land dispute there were frequent quarrels between his father and the appellant. In disbelieving  the evidence  adduced by the prosecution to prove the  motive the  trial Court  observed that there were discrepancies in  the evidence  of the above witnesses as to when  the   Panchayat  was   convened  and   who  were   the participants. Having  carefully gone through the evidence we do not find any material contradiction to discredit them. On the contrary, we find the their evidence unmistakably proves that  there   were  disputes   between  them  regarding  the boundaries of  their lands  and the  most eloquent  proof in support thereof  (which has gone completely unnoticed by the trial Court  as also  by the  High Court) is the evidence of Ramaswamy  (P.W.  6)  of  village  Ponnampalayan.  From  his evidence we get that two days prior to the occurrence he had seen nagamalai  and his  son Moorthy  quarrelling  with  the appellant in  connection with their lands. he further stated that the appellant came to him and complained that Nagamalai got an  empty promissory note signed by him and beat him up. He next  stated that  he advised  them not  to quarrel. This witness was  not at all cross-examined with reference to the above aspects  of his  evidence. When  the above unconverted evidence of  P.W.6 is  read along  with the  evidence of the witnesses mentioned  earlier there  cannot be  any manner of

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doubt that  the prosecution  has succeeded  in proving  that there was  dispute between the appellant and Nagamalai their lands and  that only two days before the incident they had a quarrel over that dispute in course of which the former beat the appellant  and,  thereafter  compelled  him  to  sign  a promissory note. 11.  To  prove  the  second  circumstance,  the  prosecution firstly relied  upon the  evidence of  P.W.  26  and  P.W.7, P.W.26 testified  that in  presence of  Mariamuthu (P.W. 7). The Village  Administrative  Officer,  and  K.  Anumugam  he seized a  HMT wrist  watch with  the word  ’Cheran’ engraved thereon (M.O.1),  which was  found near  the  dead  body  of Moorthy under  a memo (Ext. P.6) The above testimony of P.W. 26 stands  corroborated by  that of  P.W. 7  and the seizure memo, contemporaneously  prepared. The  evidence adduced  by the  prosecution   to  prove  the  above  recovery  was  not challenged by  the defence.  Next, to  prove that the seized wrist watch  belonged  to  the  appellant,  the  prosecution examined Sabesan  (P.W 11)  , Who  is a resident of the same village and  at the  material time  was working  as  a  bus- conductor in  Jeeva Transport Corporation. He testified that his uncle  gave him a HMT wrist watch with the word ’Cheran’ written thereon,  which he  (his uncle) had purchased from a worker of  Cheran Transport  Corporation. After he (P.W. 11) had used  the wrist  watch for  2/3 years  he sold it to the appellant, whom he knew from before, for Rs. 240/- about two years before the incident. He identified M.O. 1 as the wrist watch which  he sold  to him. P.W. 11  was cross-examined at length but  nothing could  be  elicited  to  discredit  him. Rather, it  was  elicited  that  10/15  days  prior  to  the incident he had seen the appellant wearing the same. 12.  The trial  Court disbelieved  the evidence  of P.W.  11 principally on  the ground  that  he  did  not  furnish  any receipt regarding  purchase of  the wrist watch by his uncle or sale to the appellant nor could he give the number of the wrist watch.  According to the trial Court, since any person could have  owned that  wrist watch  and could be present at the scene  of crime,  recovery of the same did not and could not incriminate the appellant. The above reasons are, to say the least,  untenable. it  is a  matter of  common knowledge that a  person has  any uncanny sense of identifying his own belongings, particularly  articles of  regular personal use. The trial  Court was,  therefore, not  at all  justified  in discarding the  assertion of P.W. 11, who admittedly bore no animus against  the appellant, that the wrist watch (M.O. 1) earlier belonged  to  him  .  While  on  this  point  it  is pertinent to mention that the word ’Cheran’ engraved in M.O. 1  unmistakably   supported  P.W.   11’S  version.   Equally unjustified was  the trial Court in disbelieving his further assertion that  he sold the wrist watch to the appellant for absence of  receipt relating  to the sale or purchase of the same for  it is  also common  knowledge that  in such  petty transactions in villages no body insists thereupon. It must, therefore, be  said that  the prosecution  has been  able to firmly establish  that the wrist watch found at the place of occurrence belonged to the appellant. 13.  That brings  us to the third circumstance. P.W. 27, the Inspector of  Police, who  took up  the investigation of the case on  June 4,  1984 from  P.W. 26, testified that on that day he  arrested the  appellant at pullyampatty bus stop and seized a  blood stained  lungi (M.O.  19) and   a promissory note (M.O.  20) in  presence of  witnesses one  of whom  was Murugesan (P.W.  9), and  the seizure  memo (Ext. p-8) fully corroborate the  evidence of P.W. 27 in this respect and the report  of   the  Chemical  Examiner  show  that  the  lungi

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contained human  blood.  It  is  of  course  true  that  the Serologist could  not give  any definite  opinion as  to its blood group  due to  disintegration but absence thereof does not in  any way  affect the  prosecution case. In discarding the evidence  regarding recovery  of the hand note the trial court observed  that the  hand-writing expert could not give any definite  opinion that  the signature  appearing thereon was that  of the  appellant but  it failed  to consider that when the factum of the above recovery is read along with the admission made by the appellant before  P.W. 1 of his having been coerced  by Nagamalai  to execute  a hand  note in  his favour  the   recovery  of   the  hand   note  is  a  strong incriminating circumstance against him. 14.  Having found  that the  first there circumstances stand firmly  established  we  turn  our  attention  to  the  last circumstance.  As   earlier  noticed,   the  appellant   was apprehended by  P.W. 27 on June 4, 1984 in presence of P.W.9 and one Arumugam. According to P.W. 27, after his arrest the appellant made  a statement which he recorded in presence of the above  witnesses. The statement (Ext.p-7), to the extent it is  admissible under  Section 27 of the Evidence Act, was to the  effect that  if permitted he would identify and hand over the  cycle, torch  light, gunny  bag and  aruval. After making the statement, the appellant led them to the house of P.W.14 in  village Arasur.  Reaching there  he brought  out, from the  house of  P.W. 14  a cycle (M.O. 21),  a gunny bag (M.O.23), a  torch light  (M.O. 18) and an aruval (M.O.22) . In presence  of the  witnesses, namely,  P.W. 9 and Arumugam P.W. 27  seized  those  articles  under  a  memo  which  was attested by  both of  them. P.W.  27 further  stated that he sent the seized articles, including the aruval for chemicals analysis. 15.  While supporting  the testimony of P.W. 27, P.W. 9, who is an  independent witness,  stated that in his presence and that of  Arumugam the  Inspector (P.W.  27) interrogated the appellant. In  course of  the  interrogation  the  appellant stated that  he would  identify and hand over the aruval and cycle if  taken to  Arasur and  the statement  80  made  was recorded by  P.W. 27  (Ext. P.7)  and attested  by  him  and Arumugam. He  next stated that after the blood stained lungi and  promissory  note  were  seized  (about  which  we  have discussed earlier)  he along with P.W. 27, the appellant and Arumugam proceeded  to Arasur where the appellant identified the house  of astrologer Marimuthu (P.W.14). From that house he took  out a cycle with a gunny bag tied in the carrier of the cycle.  In that gunny bag one aruval and one torch light were found.  In cross-examination  he stated that the aruval was found  to  be  blood  stained.  He  denied  the  defence suggestion that  he was  deposing falsely at the instance of the police. 16.  In his  evidence P.W. 14 stated that on May 31, 1984 at or about  7 A.M.  the appellant came to his house on a cycle and sought his professional advice for which he gave him Rs. 2/-. The  appellant then  left his  house leaving behind his cycle and the gunny bag stating that he would take them back in the  evening. When  he asked  about the  contents of  the gunny bag  he told him that there were some coirs in it. The appellant, however  did not  return as  promised, but  after four days  he came  to his  house accompanied by the police. After entering  his house  the appellant  took out the cycle and the  gunny bag  and brought  out one  aruval and a torch light therefrom.  This witness  was cross-examined at length but nothing could be elicited to discredit him. This witness hails from  a different  village  altogether  and  there  is nothing to  suggest even  as to  why he would depose falsely

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against the  appellant why  he did not know from before. The trial Court  disbelieved the  evidence of  P.W.  14  on  the grounds that  it was not expected of him to remember each of the 20-40  persons who used to come daily to seek his advice and that,  admittedly, he  did not  keep any  account of his professional activities.  In our  considered view  both  the grounds are  wholly unsustainable;  the former  is factually incorrect, in that he (P.W. 14) stated that on an average 5- 10 persons  came daily  to seek his advice and so far as the second one  is concerned, it was not expected of P.W. 14 who was earning  his livelihood  in a  village as  an astrologer charging Rs. 2/- per person, to keep accounts of his income. Having carefully gone through the evidence of P.Ws. 27,8 and 14 we  have no hesitation in concluding that the prosecution has been  able to  conclusively prove  that pursuant  to the statement of  the appellant  that he  would  hand  over  the aruval, it  was recovered  from the  house  of  P.W.14.  The reports of the Chemical Examiner show that the seized aruval contained human blood of group ‘B’ and the blood seized from the spot  where the dead bodies were lying was also of group ‘B’. The  fourth circumstance,  thus, also  stands  cogently established. 17.  When  the  above  four  circumstances,  each  of  which unerringly points  towards the  guilt of  the appellant, are taken cumulatively,  there is  no escape from the conclusion that they  are consistent  only with  the hypothesis  of the guilt of  the appellant  and wholly  inconsistent  with  his innocence. We,  therefore,  uphold  the  conviction  of  the appellant as recorded by the High Court. 18.  Lastly, comes  the question  of sentence. Mr. Mukherjee submitted that the present case did not fall in the category of ’rarest  of rare  cases’ justifying  imposing the extreme penalty of  death. According  to him, the mere fact that the appellant committed five murders cannot be made a ground for imposition of death sentence. In making the above submission he strongly  relied upon  the  judgment  of  this  Court  in Shamshul Kanwar  v. State  of U.P.  (AIR  1995  S.C.  1748], wherein it was observed that a large number of deaths on one side cannot  ipso facto  be a  ground to bring the case into the category  of rarest  of rare cases’. He also relied upon some other  judgments of  this Court  wherein  sentences  of death were  commuted. To  avoid prolixity  we  refrain  from referring to  those cases as they turned on their own facts. In responding  to the above contention of Mr. Mukherjee, Mr. Pragasam relied  upon the  observations recorded by the High Court while imposing the death sentence. 19.  From the  impugned judgment we find that the High Court first discussed  the principles laid down by this Court, for imposing death  sentence in  bachan Singh v. State of Punjab (AIR 1980  S.C. 898],  and other  cases and  then stated  as under:-      " Now, we are going to consider the      law laid  down by the Apex Court of      our land  in the above rulings with      reference to  the present  case  on      hand. Admittedly,  as seen from the      facts  and   circumstances  of  the      case,  the   following  are  proved      beyond doubt:      1) There  is no  provocation or any      quarrel between the accused and the      five   deceased.   All   the   five      deceased were  unarmed and sleeping      during midnight  and also they were      helpless. There  was  no  scope  or

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    chance for  them to face the attack      .      2) It  is proved  beyond doubt that      it was a pre-meditated one, but not      on   account    of    any    sudden      provocation.      3) There  is no  mental derangement      for the  accused to  kill  5  human      beings in  five strokes  one  after      another and they were killed during      the course of their sleep.      4) The  nature and  the  manner  in      which  the  accused  committed  the      five murders  found to be gruesome,      calculated, heinous,  atrocious and      cold-blooded murder.      Accordingly,    in     the    above      circumstances, it  is proved beyond      doubt that  the  said  heinous  and      calculated offence committed by the      respondent/accused in  killings the      5 persons  with  five  strokes  one      after the  another is  a rarest  of      the rare  cases of  the present age      in this State as a whole.      We are  of the  clear view that the      way in  which he  cut the  neck  of      five individuals,  while they  were      sleeping   during   mid-night,   is      really a  pre-meditated,  atrocious      and calculated  murder. As  such we      are of  the clear opinion that if a      human being  of this  nature  viz.,      the respondent  /accused is allowed      to  continue to live in the present      society, there  is great  threat to      the co-human  beings. There  is not      safety  or   protection   for   the      innocent, helpless, un-armed follow      human beings  in the  above special      reason     and     the     peculiar      circumstances of  the case on hand,      we are of the clear view that it is      just, proper,  appropriate, fit and      deserving case  where  the  capital      punishment  of   death   could   be      awarded to the respondent/accused." 20.  From the above quoted observations, it is seen that the High Court  did not  base its decision to impose the penalty of death  solely on the fact that 5 person were murdered but also other  attendant circumstances relating to the murders. Having given  our anxious  and deep  consideration  to  this aspect of  the matter  we are in complete agreement with the reasons canvassed  by the  High Court  to impose the capital punishment. We  only wish  to add  that the brutal manner in which the appellant wiped out the entire family of his uncle [except one  of his  sons, (P.W.8)  who, fortunately  at the material time  was studying in Coimbatore, obviously to grab his  properties,   has  shocked   our  judicial  conscience. Nonetheless we  looked in  to the record to find out whether there was  any extenuating  or mitigating  circumstances  in favour of the appellant but found none. If, inspite thereof, we commute  the death  sentence to life imprisonment we will be yielding  to spasmodic sentiment, unregulated benevolence and misplaced sympathy.

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21.  In Mahesh  v. State  of Madhya Pradesh [(1987) 3 S.C.C. 80],  this  Court,  while  refusing  to  commute  the  death sentence, observed:-      " It  will be mockery of justice to      permit the  accused to  escape  the      extreme penalty  of law  when faced      with such  evidence and  such cruel      acts. To give the lesser punishment      for the  accused would be to render      the justicing system of this Courts      suspect .  The common man will lose      faith in  courts. In such cases, he      understands  and   appreciates  the      deterrence    more     than     the      reformative jargon."      As the  above observations  squarely apply  in facts of the instant  case we  uphold the  sentence of  death imposed upon the appellant. 22.  In the  result, the appeal falls and the same is hereby dismissed.