Sundaramurthi Vs. State of Tamil Nadu
 INSC 692 (16 December 1994)
REDDY, K. JAYACHANDRA (J) REDDY, K.
JAYACHANDRA (J) PUNCHHI, M.M.
CITATION: 1995 SCC Supl. (1) 567 JT 1995 (1)
188 1994 SCALE (5)330
K. JAYACHANDRA REDDY, J.
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.
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 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
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 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.
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
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
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.
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 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.
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
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 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.