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PETITIONER: SUNDARAMURTHI

       Vs.

RESPONDENT: STATE OF TAMIL NADU

DATE OF JUDGMENT16/12/1994

BENCH: REDDY, K. JAYACHANDRA (J) BENCH: REDDY, K. JAYACHANDRA (J) PUNCHHI, M.M.

CITATION:  1995 SCC  Supl.  (1) 567 JT 1995 (1)   188  1994 SCALE  (5)330

ACT:

HEADNOTE:

JUDGMENT: K. JAYACHANDRA  REDDY, J. 1.  This  is an appeal under Section 2(a)  of  the   Supreme court  (enlargement  of  Criminal  Appellate   Jurisdiction) Act,1970  filed by Sundaramurthi, original accused no. 2  in the  case. He alongwith his father  S.K.Palaniappa  Gounder. original  accused  no. 3 and one  Illangovan  alias  Pachan, original  accused  no. 1 was tried for  offences  punishable under  Sections  302/34,  392 and 449 I.P.C.  A-3  was  also charged  under  Sections 302/109 I.P.C.  alternatively.  The Sessions Judge acquitted the appellant (A-2) and his  father A-3 but convicted A-1 under Section 302 I.P.C. and sentenced him  to death subject to confirmation by the High Court.  He was also found guilty under Sections 392 and 449 I.P.C.  The State  preferred an appeal against the acquittal of A-2  and A-3  and  the same alongwith reference for  confirmation  of death  sentence  were heard together and disposed  of  by  a common judgment by a Division Bench of the High Court  which confirmed  the,  acquittal  of A-3  but  reduced  the  death sentence  of  A-1 to one of life imprisonment and  also  set aside the acquittal of Sundaramurthi, A-2 and convicted  him under  Sections 302/34 I.P.C. and sentenced him  to  undergo imprisonment for life. He was also convicted under  Sections 392  and  449 I.P.C. and sentenced to undergo  seven  years’ R.1. under each count and the sentences were directed to run concurrently.   Hence  the present appeal by A-2  only.   It appears that A-1 has not preferred any appeal. 2.   The facts that emerge from the pros- 189 ecution  case may briefly be stated. A-2 is the son  of  A-3 and  they are the residents of Sehvvapettai, Salem  District and   A-1  is  the  resident  of  Avarangatur,   Dharumapuri District. A-3 had a rice mill and he and his son A-2 used to manage the affairs of the mill. A-1 used to work in the mill and  used to collect wages and distribute the same to  other workers.  As the work in the mill dwindled, A-1 stopped away

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from the work. The deceased Bhaiyaji and his brother-in-law, P.W.8 belong to Uttar Pradesh and for the last 15 years both of  them had been residing in a portion of a  house  bearing No. 82 which was within the mill premises belonging to  A-3. Both  of  them used to do business on  commission  basis  in purchase  and sale of Sago. P.W.8 used to occupy the  office portion  of the building while the deceased used  to  occupy the  kitchen  portion of the building.  A-3  borrowed  money from  the  deceased and the understanding between  them  was that in lieu of the interest, P.W.8 and the deceased were to occupy a portion of House no. 82 without payment of rent. A- 3  borrowed two sums of Rs. 20,000/and Rs. 15,000/- and  two promissory  notes  Ex.P. 1 and Ex.P.2 dated  19.1.1979  were executed  and they were kept alive by means of  endorsements made on 17.1. 1982 by making payment of small amounts. P.W.8 went  away to Gorakhpur (U.P.) on 25.7.1983  and  thereafter the deceased Bhaiyaji was living alone in that house.  About two days prior to his death, Bhaiyaji obtained a sum of  Rs. 15,000/- from P.W.16 and another sum of Rs. 10,000/from P.W. 17  for his trading activities. Presumably out of  the  said amount  he  paid  Rs. 10,000/- to P.W. 10  in  part  payment towards  Sago purchase from him. Their evidence  shows  that Bhaiyaji. possessed of sizeable amount of cash.  On 9.9.1983 when P.W. 10 was at the office of the deceased, A-3 came and asked  Bhaiyaji  for a sum of Rs.  10,000/-  for  purchasing tyres  but the deceased refused saying that he  had  already advanced considerable amounts.  A-3 asked him to vacate  the building  for  which  the deceased told him  that  he  would vacate  the  building only when the monies due to  him  were repaid.  A-3  became angry and vowed that he  would  recover the  possession  of the building at any cost. So  saying  he went  away. On the night of 10.10.1983, P.W. 11 who used  to sell  Sago through the deceased met him at about 10 P.M.  in his  house  and conversed with him for about half  an  hour. During the course of the talks the deceased told him that A- 3 owed him Rs. 47,000/out of which Rs.35,000/- were  covered by  two  promissory notes and that without paying  the  loan amounts.  A-3  was  pestering him to  vacate  the  building. According  to the prosecution some time after P.W.1 1  left, the  murder of the deceased is said to have taken  place  in his own residence. 3.    There are no eye-witnesses and the prosecution  relied on  circumstantial  evidence. P.Ws. 1 to 4 spoke  about  the movements  of A-1 and A-2 on that night. According to  their evidence some time after 10 P.M. on the night of  10.10.1983 they  saw A-1 and A-2 entering the car shed of A-3  to  gain access to the house where the deceased used to sleep.  About two  hours  later A-1 was seen coming out of  the  car  shed carrying a bag and 10 minutes later A-2 also came out of the shed closing the gate of the mill compound and walking away. Next morning i.e. 11.10. 1983 P.W. 18, a milk vendor knocked the  front  door  of House no. 82 to  deliver  milk  to  the deceased. As there was no response she requested P.W. 11  to find out what the 190 matter  was. P.W. 11 went to the rear side of the house  and saw through the open door on the western side the dead  body of the deceased lying on a cot. He at once sent the  message to  A-3  who  came there and also saw  the  dead  body.  A-3 prepared a report Ex.P.30 and handed over the same to P.W.31 who  registered  a  crime  under  Section  302  I.P.C.P.W.31 proceeded  to the scene of occurrence and found door of  the almirah  open and photographs of the place of occurrence  as well  as  finger  prints found on  the  bureau  were  taken. P.W.32,  Circle Inspector, took over the  investigation.  He

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examined  P.Ws. 1 to 4, 8,10 and others.  After the  inquest the dead body was sent for autopsy and P.W.29 conducted ’the autopsy  and he found 10 incised wounds, one  contusion  and several irregular abrasions on the dead body.  On dissection he found fractures of the left temporal and frontal bones as well  as  occipital  bone. The Doctor opined  that  all  the injuries could have been caused With a bill-hook like  M0.24 and  the deceased would have died within three  hours  after taking his last meal and that the death was due to shock and haemorrhage  from those injuries. On 23.10. 1983 at about  9 A.M.,  P.W.32  arrested  A-1  at  Salem  and  recorded   his statement  under  Section 27 of the Evidence Act.  A-1  took P.W.32  and  the  police party to a piece  of  land  in  the Village and he produced a bag taking it out from a pit where it was hidden.  The bag contained 240 currency notes of  Rs. 50/-  denomination and two insurance receipts, one  relating to  the life insurance of the deceased and other related  to insurance  of a scooter belonging to P.W.8.  A-1  thereafter took  the  police  party to his  house  in  Avarangatur  and produced blood-stained shirt and lungi.  Thereafter A-1 took P.W.32  to  the  office of A-3 and from a  room  behind  the office  portion A-1 took out a bill-book, M.0.24  which  was seized. P.W.32 arrested A-2 and questioned him who also gave a statement and pursuant to the same A-2 took P.W.32 to  his house  and produced a purse, MO. 2 and 80 currency notes  of Rs. 50/- denomination which were seized.  Thereafter A-3 was arrested near the railway gate and pursuant to his statement two  promissory notes Ex.P.1 and Ex.P.2 which were  executed by  him  in  favour  of  the  deceased,  were  seized.   The photographs  of  the  finger prints taken at  the  scene  of occurrence  alongwith  the finger prints of A-1  taken  were sent to the expert who gave the opinion that they tally. The prosecution  also  examined  P.W.  12  to  speak  about   an extrajudicial  confession  said to have been  made  by  A-1. However, P.W. 12’s evidence was not accepted. 4.      When examined under Section 313 Cr.P.C. the  accused denied  the prosecution case and the appellant (A-2)  stated that  the purse, M. O2 and the cash of Rs. 4,000/-, MO.  25, belong to him.  A-3 stated that he repaid the amounts to the deceased due in Ex.P.1 and ExP.2 and obtained the return  of the same after the said discharge. 5.    The trial court relying on the evidence of P.Ws. 1  to 4 as well as the evidence of finger-print expert and on  the basis of the recoveries, held that they fully prove the case against  A-1 and convicted him and acquitted A-2 and A-3  on the   ground  that  the  circumstantial  evidence  was   not sufficient to connect them with the crime. 6.      The  High  Court while allowing  the  State  .appeal against A-2, the appellant 191 herein,  took note of the fact that the evidence of P.Ws.  1 to 4 has been believed in respect of A-l and.no good reasons were given whatsoever to reject their evidence in respect of A-2 who was also seen entering the car shed at the  relevant time and also came out just behind A-1 and since the  murder had  taken place during that time, the High Court held  that the  eVidence of P.Ws. 1 to 4 who spoke about the  movements of   A-2  as  well  as  that  of  A-1  coupled  with   other circumstantial evidence sufficiently establish the guilt  of A2 also and accordingly convicted him. 7.     Before we advert  to the circumstantial evidence,  we may  state  a few facts which are beyond dispute.  The  fact that  the deceased and his brother-in-law had been  residing in Salem for nearly two decades and doing business and  that they  were  staying in Door No. 82 belonging to A-3  is  not

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disputed.  There were many dealings between the deceased and A-3  and Ex.P. 1 and Ex.P.2 are the promissory  notes  which establish  the  same  and  they  were  executed  by  A-3  on 19.1.1979.  On the day of occurrence, P.W.8 was not in   the portion  of the house and the deceased was  alone  occupying the  kitchen  portion on the western side which had  a  door way.  Since the portion was within the mill compound of  A-3 the deceased used to keep the door open for fresh air as  he did not feel it to be risky. That the deceased met his death on  the  night of 10.10. 1983 is also a  factor  beyond  any dispute and his’ dead body was noticed only in the  morning. The medical evidence establishes that it was homicidal death and there were 12 injuries which could have been caused by a lethal weapon. The iron safe was found open and the cash was missing. According to the prosecution the promotes, Ex.P.  1 and Ex.P.2 also were missing. They were recovered from  A-3. No  doubt,  A-3  has given an  explanation  that  they  were discharged and therefore they were returned to him and  thus they  were  in his possession. This  explanation,  we  shall consider at a later stage.  From the medical evidence it  is also clear that the death should have occurred between 2  to 3  hours  after the deceased had taken his  last  meal  i.e. between 10 P.M. and midnight. 8.    With the aforesaid background we shall now examine the other circumstances which incriminate the appellant. P.Ws. 1 to 4 have been examined to speak about the movements of  A-1 and  A-2 on the night in question. P.W.3 deposed that he saw A-1 and A-2 going inside the mill compound at about 11  P.M. and emerging at about midnight. P.W.2 deposed that he saw on that  night at the relevant time, A-1 and A-2  going  inside the  mill  compound.  P.W.1 has spoken  about  A-1  and  A-2 emerging  out  of  the mill compound at  about  1  A.M.  He, however,  deposed  about A-1 going into  the  mill  compound also. P.W.4 had stated that he saw A-2 going inside the mill compound at about 10.45 P.M. Taking the evidence of all  the four witnesses together, it emerges that some time after  10 P.M.,  A-2 opened the car shed and that either A-1  and  A-2 entered the compound together or one after the other.   Then after  two  hours  or so, A-1 was seen  coming  towards  the railway gate carrying a bag and A-2 emerged just ten minutes later  and  closed  the gate and went away. P.Ws.  1  and  2 clearly stated that A2 opened the mill gate and entered  the compound  and A-1 more or less immediately also entered  the compound.  Then two hours later A-1 was the first person  to come out with a bag and A-2 just a little 192 later  came  out and locked the door and went  away.   These four  witnesses  were cross-examined at length  but  nothing significant   has   been   elicited   except   making   some suggestions.   We  do  not  find  anything  in  the   cross- examination which would go to show that they were interested in  any  manner in speaking falsehood and what  really  they have stated regarding the movements of the appellant in  the company of A-1 appears to be true and natural. The  presence of  these  witnesses  round about that time  also  is  quite natural  and  their evidence has been believed by  both  the courts as against A-1 so far his movements at the   relevant time  is concerned and  their evidence  equally  establishes that  the  appellant was also in the company of  A-1  during that  period  when  the murder took place.   No  doubt  this circumstance by itself at the most may throw some suspicion. Learned counsel in this context submitted that after all the mill  belongs to the appellant and his father and  there  is nothing  unnatural  or strange if A1 entered his  own  mill. But  one  should remember that the appellant and  A-1  going

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inside  more or less at the same time and coming  out  about two hours  later during which interval the murder has  taken place,  is  very incriminating in nature.  The  evidence  of these witnesses also show that it was A-2 who opened the car shed  and made way for entrance of A-1. The  next  important circumstance  is  Ex.P.I  and  Ex.P.2  being  found  in  the possession  of A-3.  The consideration in Ex.P.I and  Ex.P.2 is not a small sum but as large as Rs. 35,000/-. A-3 in  his statement  under  Section 313 Cr.P.C.  simply  pleaded  that having discharged this debt he obtained the return of  Ex.P. 1 and Ex.P.2 and that is how they were in his possession. He did  not  give any further explanation as to  how  he  could raise  this  large amount. P.W. 10, who  is  an  independent witness, deposed that on 8.10. 1983 he met the deceased  for the  last occasion. Before that he met him on 9.9.83 and  at that time A-3 came to the deceased for taking a further loan of Rs. 10,000/- for buying the tyres but the deceased in his presence  .told A-3 that he had already given money  and  he could  not give thereafter. A-3 pleaded that he  wanted  the money  urgently  but  according  to  P.W.  10  the  deceased refused.  His  evidence  clearly  shows  that  A-3  was   in financial  difficulties. It is also noteworthy that Ex.P.  1 and Ex.P.2 were enforceable by the date of occurrence and it is also very much relevant to note that Ex.P.I and Ex.P.2 do not  contain endorsement of discharge. If really  there  was such  discharge  as  claimed by A-3 there  would  have  been definitely  an endorsement of discharge on them. Apart  from this there is the evidence of P.W.11 who deposed that he met the deceased some time before his death and at that time the deceased  had  told  him that’ he had given a  loan  of  Rs. 47,000/-  to  A-3  and that he  had  executed  pronotes  and without  discharging the debt A-3 was asking him  to  vacate the premises. P.W. 10 and 11 are   independent witnesses and doing business somewhat on a large scale and had a number of transactions   with  the  deceased.  There  is   no   reason whatsoever  to doubt their evidence which  establishes  that the  amounts  in Ex.P. 1 and Ex.P.2 were not paid  and  they were not discharged and therefore they must have been in the possession  of the deceased and must have been in  the  iron safe. If that is the position, the irresistible inference is that  somebody  who after committing the murder  and  having removed  the promissory notes, Ex.P. 1 and Ex.P.2  from  the iron safe, must have handed them over to A-3.  He could be 193 non  else  than A-2 in the circumstances. This is  a  highly incriminating  circumstance. When questioned  under  Section 313 Cr.P.C., A-2 simply denied every circumstance  appearing against  him.   The  High Court  has  considered  all  these circumstances  and has rightly convicted the  appellant.  We have  carefully considered the reasons given by the  learned Sessions Judge and we find that the evidence of P.Ws. 1 to 4 has been rejected erroneously.  Therefore the view taken  by the High Court is the only reasonable one. For all the above said reasons, the appeal stands dismissed. 194