SUNDARAMURTHI Vs. STATE OF TAMIL NADU

JUDGEMENT

(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 2 in the case. He along with his fathers. K. Palaniappa Gounder, original accused 3 and one Illangovan alias Pachan, original accused 1 was tried for offences punishable under S. 302/34, 392 and 449 Indian Penal Code. A-3 was also charged under S. 302/109 Indian Penal Code alternatively. The Sessions Judge acquitted the appellant (A-2 and his father A-3 but convicted A-1 under Section 302 Indian Penal Code and sentenced him to death subject to confirmation by the High court. He was also found guilty under S. 392 and 449 Indian Penal Code. The State preferred an appeal against the acquittal of A-2 and A-3 and the same along with 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 S. 302/34 Indian Penal Code and sentenced him to undergo imprisonment for life. He was also convicted under S. 392 and 449 Indian Penal Code and sentenced to undergo seven years' R1 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 prosecution case may briefly be stated. A-2 is the son of A-3 and they are the residents of Sehvvapettai, Salern 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 stepped away from the work. The deceased Bhaiyaji and his brother-in-law, Public Witness 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. Public Witness 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, Public Witness 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. 00 and Rs. 15,000. 00 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. Public Witness 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. 00 from Public Witness 16 and another sum of Rs. 10,000. 00 from Public Witness 17 for his trading activities. Presumably out of the said amount he paid Rs. 10,000. 00 to Public Witness 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 Public Witness 10 was at the office of the deceased, A-3 came and asked Bhaiyaji for a sum of Rs. 10,000. 00 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, Public Witness 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 ofthe talks the deceased told him that A-3 owed him Rs. 47,000. 00 out of which Rs. 35,000. 00 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 sometime after Public Witness 11 left, the murder of the deceased is said to have taken place in his own residence.

(3.) There are no eyewitnesses and the prosecution relied on circumstantial evidence. PWs 1 to 4 spoke about the movements of A-1 and A-2 on that night, According to their evidence sometime 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 Public Witness 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 Public Witness 11 to find out what the matter was. Public Witness 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 Public Witness 31 who registered a crime under Section 302 Indian Penal Code. Public Witness 31 proceeded to the scene of occurrence and found door of the almirah open and photographs of the place of occurrence as well as fingerprints found on the bureau were taken. Public Witness 32, Circle Inspector, took over the investigation. He examined PWs 1 to 4, 8, 10 and others. After the inquest the dead body was sent for autopsy and Public Witness 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 MO 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. , Public Witness 32 arrested A-1 at Salem and recorded his statement under Section 27 of the Evidence Act. A-1 took Public Witness 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. 00 denomination and two insurance receipts, one relating to the life insurance of the deceased and other related to insurance of a scooter belonging to Public Witness 8. A-1 thereafter took the police party to his house in Avarangatur and produced bloodstained shirt and lungi. Thereafter A-1 took Public Witness 32 to the office of A-3 and from a room behind the office portion A-1 took out a bill-hook, MO 24 which was seized. Public Witness 32 arrested A-2 and questioned him who also gave a statement and pursuant to the same A-2 took Public Witness 32 to his house and produced a purse, MO 2 and 80 currency notes of Rs. 50. 00 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 fingerprints taken at the scene of occurrence along with the fingerprints of A-1 taken were sent to the expert who gave the opinion that they tally. The prosecution also examined Public Witness 12 to speak about an extrajudicial confession said to have been made by A-1. However, Public Witness 12's evidence was not accepted.