BALAN ALIAS BABU ALIAS BALAMURUGAN Vs. STATE

JUDGEMENT

(1.) THE sole accused in S.C.No.239 of 2008 on the file of the Additional District and Sessions Judge (Fast Track Court No.I), Erode, who was prosecuted, found guilty and convicted for the offences under Section 449 and 302 IPC with imprisonment for life and a fine of Rs.5,000/- with a default sentence of rigorous imprisonment for six months for an offence under Section 302 IPC and rigorous imprisonment for three years and a fine of Rs.5,000/- with a default sentence of rigorous imprisonment for six months for an offence under Section 449 IPC by the trial Court has brought forth this appeal under Section 374(2) Cr.P.C questioning the correctness and sustainability of the judgment of the trial Court dated 07.09.2010 pronounced the said case both in respect of conviction as well as sentence.

(2.) FOR the death of one Santhi at about 12.00 midnight on 30.09.2007/01.10.2007, a case was registered on the file of Perundurai Police Station in Crime No.544 of 2007 for an alleged offence punishable under Section 302 IPC against unnamed accused. During the course of investigation, the appellant/accused was identified to be the assailant, who caused the death of deceased Santhi, and on completion of investigation, the Inspector of Police, Perundurai submitted a final report, alleging commission of offences punishable under Section 449 and 302 IPC by the appellant/accused, on the file of the learned District Munsif-cum-Judicial Magistrate, Perundurai, who took it on file as P.R.C.No.23 of 2007. After supplying copies of the document proposed to be relied on by the prosecution, to the appellant herein/accused under Section 207 Cr.P.C, the learned District Munsif-cum-Judicial Magistrate committed the case for trial to the Sessions Court, Erode. It was taken on file as S.C.No.239 of 2008 on the file of the Sessions Court, Erode and the same was later on made over to the learned Additional District and Sessions Judge (Fast Track Court No.I) Erode, for disposal according to law. The trial Judge, namely learned Additional District and Sessions Judge (Fast Track Court No.I), Erode, found that there were sufficient materials to prosecute the appellant/accused for offences punishable under Sections 449 and 302 IPC and framed charges under the above said penal provisions. The appellant/accused, after having the charges read over and explained in Tamil, pleaded not guilty. Pursuant to such plea of the appellant/accused, a trial was conducted.

(3.) THE prosecution case in brief is as follows: i) Deceased Santhi was the wife of P.W.7-Viswanathan. THEir marriage took place in the year 1994. THEy were blessed with two children, namely P.W.2-Anandha Saravanan and one Kalaivanan. In 2002, due to misunderstanding, they parted with each other and started living separately. After their separation, their sons, namely Kalivanan and Anandha Saravanan were with their mother Santhi. Santhi was employed in a provision store called "Devi Stores", owned by P.W.4-Sankar @ Sivasankar. P.W.7-Viswanathan, the husband of the deceased Santhi is the junior paternal uncle of P.W.1-Hemalatha. She was also a neighbour of Santhi. THE co-workers of Santhi, both male and female, used to visit the house of Santhi situated in Bajanai Koil Street, Perundurai. THE appellant/accused was one of the persons who paid such frequent visits to the house of Santhi and in the said course, he developed intimacy with her. However, subsequently the deceased Santhi developed intimacy with P.W.6-Kumar @ Govindaraman and P.W.6 married her at Palani temple. Even after their marriage, the appellant/accused gave troubles to the deceased Santhi and the said fact was also informed by her to P.W.6. While so, when P.W.6 and deceased Santhi were together in her house twenty days prior to the date of occurrence, the appellant/accused came there and handed over a blue colour bag to Santhi, asking her to keep it in safe custody as it contained LIC bond and his school certificate. THE deceased Santhi, after verifying the contents, put the bag in her bureau. Even at that point of time, P.W.6 informed the appellant/accused of his marriage with Santhi and pleaded with him not to give them any more trouble. At that juncture, the appellant/accused asked him to bear with him for that time alone. However, the accused developed a grudge, which led to the killing of the deceased Santhi by the appellant/accused by dropping M.O.1-granite stone on the head of the deceased Santhi while she was sleeping. P.W.4-Kumaresan and P.W.5-Geetha @ Geethalakshmi were also employees of "Devi Stores", Perundurai and knew the life history of the deceased Santhi prior to the date of occurrence. THEy also knew the intimacy the deceased Santhi had developed with the appellant/accused and with P.W.6-Kumar. P.W.4-Kumaresan also had heard from the accused that the accused used to go to the house of deceased Santhi and enjoy her company. P.W.5-Geetha @ Geethalakshmi also knew the acquaintance of the deceased Santhi with the appellant/accused and also with P.W.6-Kumar. She also holds testimony for an adumbration made by the appellant/accused over phone to do something against Santhi when his attempt to contact her over phone was not successful, as the phone was picked up by P.W.5 and deceased Santhi refused to get the receiver to talk to him. ii) On 30.09.2007 at about 10.15 p.m, P.W.1-Hemalatha saw the appellant/accused knocking at the doors of the house of the deceased Santhi. However, she did not give any importance to the same since she knew that the appellant/accused was one of the persons, who used to visit the house of the deceased Santhi on earlier occasions. At about 11.30 p.m on 30.09.2007, P.W.2-Anandha Saravanan, who was sleeping on the cot along with his elder brother Kalivanan, got awakened as his sleep was disturbed by the noise caused by the discussion made by the appellant/accused with the deceased Santhi, who were sitting on the mat spread on the floor in the very same room. On seeing P.W.2 getting up and frowning at them, the deceased Santhi told him that there was nothing special and asked him to sleep. THEreafter, P.W.2 fell asleep, while the appellant/accused and the deceased were talking to each other in the very same room in which P.W.2 and his brother were sleeping. At about 1.30 a.m on 01.10.2007, P.W.3-Raja saw the appellant/accused waiting for the bus in the new bus stand of Perundurai. iii) On 01.10.2007 at about 7.00 a.m, P.W.13-Venkateswaran, who is none other than the brother of P.W.1, went to the house of deceased Santhi and found her lying dead on the mat. Immediately he called P.W.1-Hemalatha and showed it. Both of them saw the dead body of Santhi lying on the mat spread on the floor in her house with a bleeding injury found near the left eyebrow. THEreafter, the father of P.Ws.1 and 13 also came there and after his arrival, P.W.1 woke up the children of the deceased. THEn, P.W.1, along with her father, went to Perundurai Police Station and lodged Ex.P1-complaint. One Panneerselvam, the then Sub-Inspector of Police, received Ex.P1-complaint, prepared Ex.P23-First Information Report in the printed format and registered a case in Crime No.544/2007 on the file of Perundurai Police Station against unnamed accused for an alleged offence under Section 302 IPC. Since the jurisdictional Inspector of Police was on other duty, P.W.20-Dharmaraj, the then Inspector of Police, Arachalur, took up the initial investigation of the case, proceeded towards the place of occurrence and prepared Ex.P11-observation mahazar and Ex.P24-rough sketch in the presence of witnesses, namely P.W.11-Kuppusamy, Village Administrative Officer and his assistant Devaraj. He also recovered M.O.1-blood stained granite stone with irregular shape, M.O.9-Polythene fibre mat, M.O.10-pillow cover, M.O.11-blanket, M.O.23-blood stained cement mortar and M.O.24-sample cement mortar under cover of mahazar Ex.P12. P.W.20 conducted inquest on the body of the deceased Santhi in the presence of panchayatdars and prepared Ex.P25-Inquest Report. P.W.20 also arranged for taking photographs of the dead body in the scene of occurrence through P.W.12-Ravichandran, photographer. THEn the dead body of the deceased Santhi was sent to the hospital through P.W.17-Ganapathy, the then Head Constable attached to Perundurai Police Station along with Ex.P13-requisition for autopsy. iv) On receipt of the dead body with requisition for autopsy, P.W.15-Dr.Jaganmohan conducted autopsy. He noted the following external injuries found on the dead body of the deceased Santhi:-