KUMARAVEL Vs. STATE

JUDGEMENT

(1.) THIS reference under Sec.366, Code of Criminal Procedure is made by the Additional District and Sessions Judge, Nagapattinam, and the appeal is preferred by the accused, from the conviction and the sentence of death imposed by the learned Additional District and Sessions Judge, in S.C. No.191 of 1995 on his file for the murder of one Ranganayaki Ammal. The Criminal Miscellaneous Petition No.3220 of 1996 has been filed to receive the newspaper -Malai Malar - dated 30.9.1994 in evidence.

(2.) THE occurrence had taken place on 29.9.1994 between 1.30 and 2.30 p.m. in Sattaiappar Street, Nagapattinam Town. The prosecution case can be narrated in brief as follows: The deceased Ranganayaki Ammal was the wife of late N.R. Subramanian, an advocate of Nagapattinam, who also had died on 13.4.1994. Their daughter P.W.2 is married in Mayiladuthurai and of their two sons, one is employed in Jamshedpur and the other son is an advocate at Madras. Their another daughter is also married at Madras. After the death of N.R. Subramanian, the deceased Ranganayaki Ammal was residing alone in Door No.23, Sattaiappar Street, Nagapattinam. P.W.11 was formerly working as a driver of the car owned by N.R. Subramanian and five years before the death of N.R. Subramanian, P.W. 11 joined as a driver in Cholhan Transport Corporation. Therefore, the appellant herein Kumaravel was working under N.R. Subramanian as his driver. After the death of N.R. Subramanian, though the deceased Ranganayaki Ammal retained the car bearing registration No. M.D.O.7648 for her use, she was not regularly using the car and only whenever she wanted to go out, she used to send for this appellant for driving the case. However, this appellant used to come to the house of the deceased for cleaning the car. As the appellant had no regular work in the house of the deceased, he was doing plumping work and electrical works wherever the works were available to him and whenever he was called upon by the deceased for attending small domestic work, he used to go and attend the work. However, he was not satisfied with the payments made by the deceased and he complained to P.W.6, another driver, that the deceased was stingy, that she was not paying his wages and he was finding it difficult to meet both ends. The appellant complained to P.Ws.1 and 3 also in the same manner about the conduct of the deceased in not paying proper wages and that it would be helpful for him if she made a lumpsum payment so that he could invest money in some small industry to make his livelihood. P.Ws.1 and 3, who are brothers, are residing in door No.21, which is next adjacent to the house of the deceased Ranganayaki Ammal on the eastern side. RW.4 is another neighbour of the deceased in door No.25, on the western side. The odd numbers of the houses are situated in one row and the even numbers are situated in opposite row. P. W.5 is residing opposite to the house of the deceased, in door No.28. As Ranganayaki Ammal was living alone, the main door of her house would be always bolted inside and only when known persons knocked the door, she used to open it after seeing them through the window. On 28.9.1994, P.W:5 met the deceased Ranganayaki Ammal by about 7.00 p.m. and she told him that as the motor in the well went out of order, she had sent word to the appellant through P.W.11. On 29.9.1994, this appellant, who is residing with his brother P.W.11 in Kadampadi Main Road, went to the cycle shop of P.W.9 in Velipalayam and hired M.O.21 cycle for going to the house of the deceased. He reached the house of the deceased by about 9.30 a.m. and this was seen by P.W.5. After sometime, the appellant came out in the cycle with a plastic bag and went out. By about 1.30 p.m. he returned back and P.Ws.1, 4 and 5 saw the deceased talking with the appellant and the appellant entering into the house of the deceased. The deceased was wearing M.Os.5 and 6, gold bangles, M.O.7, a part of M.O.10 gold chain with beads, M.O.8, single row chain with amulet and M.O.9 double row chain. By about 2.30 p.m., P.W.1, with his brother, P.W.3, was sitting outside their house in the portico discussing family matters. At that time, they heard the iron gate in the compound wall of deceased, being rashly closed creating a noise and when they saw towards that direction, they saw this appellant hastily leaving in his cycle towards east and in the front side of his white shirt M.O.2, there were blood stains. M.O.1 was the pant worn by the appellant at that time. P.W.4 also saw the accused coming out from the house and moving towards east. As Ranganayaki Ammal was alone in the house and as the appellant was moving out of the house in a suspicious manner, P.Ws.1 and 3 went to the house of the deceased and knocked at the door. There was no response from inside. Through the side lane, which proceeds to the backyard, they went to the backyard and entered into the house through a door on the back side, which was not closed, and they saw the deceased Ranganayaki Ammal lying near the well on the eastern side. They found blood stains on the floor. When they tested her breathing, they found Ranganayaki Ammal was already dead. Her backside was burnt by pouring kerosene. Except the nose screw and the ear rings, all the other jewels worn by her were found missing. Therefore, P.W. 1 immediately sent a message through phone to P.W.2 and also to her son at Madras. P.W.2 was able to reach the place only by 8.00 p.m. on account of the band on that day. In the meanwhile, this appellant went to the house of P.W.10, who is known to him, and told him that he had murdered Ranganayaki Ammal by beating her with iron rod on her head and also had stolen her jewels and to escape from the place, he was leaving to Coimbatore after receiving the money from his brother. When the appellant was proceeding to his brother -s house, he was seen by P.W.12 and one Jagannathan, when they were taking tea in a tea shop. As the appellant had blood stains in his shirt, they enquired him about the same and he told them also that he committed the murder of Ranganayaki Ammal. The appellant came to the house of his brother P.W.11, to whom he told that he had murdered Ranganayaki Ammal and relieved of her jewels. P.W.11 scolded the appellant that they were treating Ranganayaki Ammal as their own mother and he had committed a great sin by murdering her. By about 3.00 p.m. on that day, P.W. 1 went to Nagapattinam Town Police Station and gave the complaint Ex.P -1 to P.W.17 Inspector of Police, who registered the same in Crime No.1062 of 1994 under Secs.302 and 380, Indian Penal Code. Ex.P -20 is the First Information Report prepared by him and the same was sent to the Court and the other superior police officers. P.W. 17 immediately came to the scene of occurrence and prepared the observation mahazar Ex.P -2 in the presence of P.W.7 and another. He also drew a rough sketch Ex.P -22 for the house of the deceased. Ex.P -23 is the rough sketch for the street. Between 7.00 p.m. and 9.00 p.m. in the presence of the Panchayatars, he conducted the inquest. Ex.P -24 is the inquest report. He examined P.Ws.1 to 5 at that time. The body was handed over to P.W. 15 Constable for being taken to the hospital for postmortem a long with the requisition Ex.P -11. In the cement floor at the place of occurrence, there were blood stains and therefore, P.W.17 recovered the bloodstained cement plastering M.O.11 and the sample cement plastering M.O.12. He also recovered M.O.13, broken spectacle, M.O.4 burnt saree, M.O.14 bloodstained red towel, M.O.15 an electrical testor lying near by, M.O.16, the kerosene bottle, M.O.17 the bottle cap, M.O.18 series50 paise, 5 paise and 10 paise coins, M.O.19, chappal and M.O.10 broken chain sticking to the neck of the deceased with beads, in the presence of P.W.7 and others under Ex.P -3. P.W.15, the police constable, handed over the body of the deceased in Government Hospital on the same night to P.W.14, who sent the same to the mortuary. Ex.P -13 is the accident register. On 30.9.1994 at 10.30 a.m. P.W.13 the Medical Officer attached to the Government Hospital. Nagapattinam, commenced the post -mortem and found the following injuries on the body of the deceased:

(3.) THE learned counsel Mr.T.Arulraj, appearing for the appellant, contended that this is a case on purely circumstantial evidence and the evidence on the prosecution side is full of inconsistency and improbabilities and the arrest and the recovery of the articles, as alleged by the prosecution, is highly improbable and therefore the conviction of the appellant is bad. The learned counsel for the appellant has filed Crl.M.P.No. 3220 of 1996 to receive in evidence the newspaper -Malai Malar - dated 30.9.1994, which refers to the concurrence and also the arrest of the appellant within three hours after the occurrence. According to the learned counsel, as this news item refers to the arrest of the appellant even on 29.9.1994, it is an important detail available now, which completely falsifies the arrest, confession and recovery of the articles, as alleged by the prosecution and this newspaper, has to be received in evidence. The learned counsel contended that it is the evidence of P.Ws.17 and 8 that the appellant was arrested on 30.9.1994 at 11.10 a.m. near Arabsaw Darga, that on the information furnished by the appellant on 30.9.1994 the jewels were seized from the person of the appellant and also from the backyard of the house of the appellant where the jewels were buried in the earth, but the newspaper Malai Malar dated 30.9.1994, which is an evening publication, reveals that the appellant was arrested even on 29.9.1994 and this newspaper completely blasts the important link alleged to be with the appellant, viz., the recovery of jewels from him on 30.9.1994, and in the interest of justice, this newspaper has to be received in evidence though the same was failed to be marked even when the witnesses were in the box before the trial Court or at the time of the statement of the appellant under Sec.313, Code of Criminal Procedure. The learned counsel relies upon a decision of the Calcutta High Court in Chakravarthi v. Public Prosecutor, 1981 C.W.N. 125 which relates to a proceeding under Sec.198 -B of the Code of Criminal Procedure for the defamation of the complainant. Certain defamatory statements were made by the accused therein, who had published it in the newspaper and therefore, the newspaper containing the defamatory statement was sought to be marked in that case. As the basis of the complaint was only the publication of the defamatory statement in the newspaper, in that case it was held that the newspaper could be received in evidence. The learned counsel for the appellant further contended that under Sec.81 of the Indian Evidence Act, a presumption can be drawn as to the genuineness of the gazettes, newspapers private Acts of Parliament and under Sec. 391, Code of Criminal Procedure, the appellate court has right to take further evidence in case where such evidence is required and in this case, as mentioned above, the news column in the newspaper is very important and therefore, the newspaper has to be received as an additional evidence. So far as Sec.81 of the Evidence Act is concerned, it relates to only the genuineness of the newspaper. It does not refer to the contents therein. As the paper was published only on the evening of 30.9.1994 before which time the appellant was already arrested, the time of the arrest of the appellant, as published in the newspaper, must be only a hear -say. In Laxmi Raj Shetty v. State of Tamil Nadu, A.I.R. 1988 S.C. 1274: J.T. (1988)2 S.C. 180, the Apex Court has held that the court cannot take judicial notice of the case stated in the news item, being in the nature of hearsay secondary evidence, unless proved by evidence aliunde, and the newspaper is not one of the documents referred to in Sec.78(2) of the Indian Evidence Act by which an allegation of fact can be proved. Their Lordships also have referred to Sec.81 of the Evidence Act as to the newspaper report and they would hold that the newspaper report cannot be treated as proved of the facts reported and therefore, it is inadmissible in evidence in the absence of the maker of the statement appearing in Court and deposing to have perceived the fact reported. The learned counsel Mr.Arulraj submitted that the observation of the Apex Court is to the effect that even though the news item in the newspaper is hearsay evidence, the maker of the statement can prove the same by appearing in the Court and therefore, if the newspaper is received in evidence, an opportunity might be given to examine the reporter of this news and therefore, for this purpose, the application for additional evidence might be allowed directing to produce the witness to prove the contents of the news item. The name of the reporter who arranged for the publication of this news, is not even mentioned in the petition. Further, there is nothing to show that the reporter himself was able to see the arrest of the appellant on 29.9.1994 itself. Unless the reporter had seen the arrest of the appellant and the custody of this appellant with the police even on 29.9.1994, his statement for the arrest also would be only hearsay. But there is no averment in the petition that the reporter had actually witnessed the arrest or saw the appellant in the custody of the police even on 29.9.1994 itself. Therefore, without such assurance, no purpose would be served even if opportunity is given to produce the witness, viz., the reporter is only to receive the newspaper dated 30.9.1994. As the news item therein is only hearsay, the same cannot be received in evidence. Therefore, this application for reception of the newspaper deserves to be dismissed and accordingly, it is dismissed.