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Subramanian and anr. Vs. the State of Tamil Nadu - Court Judgment

LegalCrystal Citation
CourtSupreme Court of India
Decided On
Case NumberCriminal Appeal No. 58 of 1973
Reported inAIR1975SC139; 1975CriLJ226; (1975)3SCC414
AppellantSubramanian and anr.
RespondentThe State of Tamil Nadu
Excerpt: [1933] l.r. a.c. 168. distinguished. - 10. the deceased used to keep his cash in the big iron-safe which was lying in the scene room. after about 15 minutes, the deceased went inside the house, placed the newspaper near the kali pooja room and proceeded further to the well inside for a wash. about 15 minutes theraafter, the approver, as per prior understanding, opened the back door of the house by the side of the well, and let a-1 and a-2 into the house. a-1 then opened the big iron-safe and took out three bundles of currency notes and passed them on to a-2 who put them in a white cloth bag. a-1 closed the safe and retained the key with him. a-1 and a-2 took the blood-stained dhoti of the deceased and the currency notes and went towards the side of the well. after a-1, towards the value of the stolen property.10. the deceased used to keep his cash in the big iron-safe which was lying in the scene room. he used to wear two gold rings, m. o. 5 and m. o. 6, and the wrist watch, m. o. 7. these were found missing from the dead-body at the time of its recovery.11. the prosecution case further is that about two days after the murder, on april 17, 1971, a-1 pledged the ring, m. o. 5, with p.w. 12 for rs. 30/-.12. a-1 was arrested by p.w. 27, at the bus stop near rastha village on may 2, 1971. after making a confessional statement, a-1, whilst in custody, led p.w. 27, in the presence of p.w. 13, to the house of p. w, 12. questioned by p.w. 27, p.w. 12 produced the ring, m. o. 5, which was seized by the sub-inspector as per ex. p-21. on the same day, in.....

R.S. Sarkaria, J.

1. The appellants were tried by the Sessions Judge, Tiranelvelj Division for the murder of Mutbiah Pillai, an Ex-Member of Parliament and retired Lecturer of a College. Appellant No. 1 (for short, A-1) was convicted under Section 302 read with Section 34, Penal Code, while Appellant No. 2 (for short, A-2) was convicted under Section 302, Penal Code. Each of them was sentenced to death. A-1 and A-2 were further convicted for offences under Sections 457, 392, Penal Code and sentenced to rigorous imprisonment. The High Court of Madras dismissed their appeals, upheld their convictions and confirmed their sentences. The appellants have now come in appeal to. this Court after obtaining special leave under Article 136 of the Constitution.

2. The deceased was a widower. His only child, a daughter, Balmani, was married to Packiam, P.W. 3, a resident of village Therku Medu, The deceased lived alone in his house in South Car Street, Tirunelveli Town. He owned lands in the revenue estates of Kodikulam and Thiruthu, situate at a distance of a few miles from Tirunelveli town.

3. A couple of days before his murder, the deceased visited village Kodi-kulam and directed Arunachala Thevar, P. W 4, a cultivator of his lands, to plough his lands in 'Thiruthu village on the following day. The deceased then departed from village Kodikulam for his home town at about 5 p.m. Accordingly, on (he following day, P.W. 4 and his companion ploughed the lands of the deceased in village Thirathu. The deceased was expected to come to Thiruthu to supervise the ploughing operations and to pay the wages of the workmen. He however, did not tum up After doing the day's work, therefore, P W 4 and his companion came to Tirunelveli and reached the house of the deceased at about 7 p.m. They found the entrance door of the house locked. After waiting in vain outside the house for the deceased, they went back to their village at 8 p.m. P.W. 5, a village Munsill, also, on that day (April 13, 1.97.1) in the evening, came to the house for collecting Kist in respect of the deceased's lands in 'Thiruthu village. He also found the front door of the house locked. After a futile wait for the deceased to turn up, he went away at 9 p. m.

5. On the morning of April 18, 1971, P. Ws. 4 and 6 and one Dievu Thevar again came and entered the front room of the house of the deceased after breaking open the lock. Driven back by foul smell they came out, and re-entered in the company of P.W. 11, the village Munsiff, who was brought there by P.W. 4. This time they went further into the second room. The entrance door of the third room was lying locked. They broke it open. In the third room lay the dead-body of the deceased wrapped in a carpet and its legs tied with a rope.

6. At the instance of the Village Munsiff, P.W. 4 went to the Police Station along with P.W. 6 and lodged the report, Ex.. P-5, at about 9 a. m. After registering the case, the Sub-Inspector (P.W. 7) sent a copy of the FIR to the Inspector, P.W. 28.

7. The Inspector, accompanied by the Sub-Inspector, reached the scene house at 9-45 a. m. and started investigation. He Saw the dead-body in the third room, blood on the floor, and marks of dragging over a length of about 6 ft. He indicated' all the facta observed by him. at the spot in the mahazar, Ex. P-12. At about 11.30 a. m., he found the Diary, Exh. P-3, of the year 1971, which the deceased used to maintain, under the pillows on the cot. He took it into possession as per memo, Ex. P-13. He then prepared the inquest report, Ex. P-14, and examined P. Ws. 3, 4, 6 and the daughter of the deceased. At 6 p. m. he detected a blood-stained towel secreted in a pitcher in the 4th room. He then found another, diary, Ex. P-2, of the deceased relating to the year 1970, on the wooden bureau. He examined the entries in the diaries, from which he came to know that the deceased had association with 36 persons mentioned therein. One of them was A-1 with whom the deceased had an intimate connection. The Investigating Officer then searched for A-1 but found him absconding. He called and examined 11 out of those 36 persons mentioned in the diaries.

9. A-1 was, sometime before the occurrence, working as a servant in the house of the deceased. During that period, he stole away several articles on various occasions. When the deceased discovered it, he got executed in his favour, a promissory note (P-24) in the sum of Rupees 1,000/- by A-1, towards the value of the stolen property.

10. The deceased used to keep his cash in the big iron-safe which was lying in the scene room. He used to wear two gold rings, M. O. 5 and M. O. 6, and the wrist watch, M. O. 7. These were found missing from the dead-body at the time of its recovery.

11. The prosecution case further is that about two days after the murder, on April 17, 1971, A-1 pledged the ring, M. O. 5, with P.W. 12 for Rs. 30/-.

12. A-1 was arrested by P.W. 27, at the Bus Stop near Rastha village on May 2, 1971. After making a confessional statement, A-1, whilst in custody, led P.W. 27, in the presence of P.W. 13, to the house of P. W, 12. Questioned by P.W. 27, P.W. 12 produced the ring, M. O. 5, which was seized by the Sub-Inspector as per Ex. P-21. On the same day, in pursuance of the confessional statement, which he had made earlier, A-1 took the Sub-Inspector, in the presence of P. W: 13, to the backyard of the house of the deceased and produced from a thatched roof the bunch of keys, M. O. 4. It was attached as per Exh. P-22. A-1 was then taken to the Police Station where the Dhoti, M. O. 11, was removed from his person as per Memo Ex. P-23.

14. On May 13, 1971, P.W. 27 arrested Narayanan, a part-time servant of the deceased, at village Vadukatachi-mathel. Narayanan made a confessional statement which was recorded. This information led to the recovery of the wrist watch, M. O. 7, of the deceased, from P.W. 16 with whom Narayanan had pawned it for Rs. 30/- on April 18, 1971. Narayanan then caused the recovery of the fan, M. O. 2, from P, W. 15 to whom he had sold it on March 25, 1971.

16. On May 14, 1971, the Police Sub-Inspector moved the Sub-Magistrate Nanguneri, P.W. 9, for recording the con-fession of Narayanan who was then in jail. Narayanan was sent for by the Magistrate from jail on May 18, 1971. After preliminary examination, the Magistrate sent him to the Sub-Jail for reflection. Thereafter, on May 19, 1971, the Magistrate recorded his confession, Ex. P-9. On August 17, 1971, the Executive Magistrate 1st Class, Tirunelveli tendered pardon to Narayanan under Section 337, Cri.P.C.

18. The story narrated by the approver at the trial was, as follows:

19. A-1, A-2 and the approver are, all, residents of Tirunelveli Town and were known to each other. The services of A-1, as domestic servant, were dispensed with by the deceased about six months before the occurrence because A-1 had been stealing articles from the house of the deceased. About three months before the occurrence, the approver became a casual servant of the deceased on an ad hoc basis. Even after the termination of his employment, A-1 continued to visit the house of the deceased. About three months before this murder, the approver stole away a table-fan from the house of the deceased and sold it to Khaja Barji for Rs. 80/- at Pettai. The deceased suspected that the theft had been committed again by A-1. A week before his murder, the deceased told the approver that A-1 had stolen the fan, and, therefore he was going to lodge a complaint with the Police, The, deceased added that he would also file a case against A.-1 on the foot of the promissory note for Rs. 1,000. The approver passed on this information to A-1 on April 15, 197,1, as he was afraid that initiation of proceedings before the police would expose him as the thief. He further informed A-1 that the deceased had in his house the sale proceeds of ,25 Kothahs (50 bags) of paddy. They, therefore, made a plan to murder the deceased on the same night and rob him of the cash and valuables. Accordingly, at 7-15 p. m., A-1 and A.-2 joined the approver at a distance of one furlong from the house of the deceased. Perumalsami Naidu, P.W. 2, a passer-by saw them conferring there. All the three then went to the house of the deceased and watched the deceased who was then engrossed in reading a newspaper. A-1 and the approver knew that according to his routine, the deceased would soon go out to take his dinner. After about 15 minutes, the deceased went inside the house, placed the newspaper near the Kali Pooja Room and proceeded further to the well inside for a wash. The approver stealthily followed the deceased into the house and concealed himself behind a bureau. After washing his hands and legs, the deceased went out locking the front door of the house. About 15 minutes theraafter, the approver, as per prior understanding, opened the back door of the house by the side of the well, and let A-1 and A-2 into the house. All the three then hid themselves behind the three big bureaus in the bed room. At about 9-30 p. m., the deceased re-entered the house after unlocking the front door. He relocked that door from inside, came into the bed room, spread the bed-sheet on the floor near the cot and went to sleep. At about midnight when the deceased was snoring loudly, A-1 asked his companions to come out and finish the 'job'. A-2 then instructed that A-1 should switch on the light and gag the deceased, while the approver would hold the legs of the deceased and A.-2 do the rest. Accordingly, A-1 put on the light. The deceased woke up. A-1 immediately covered his face with a piece of cloth. The approver pinned the legs of the deceased to the floor, while A-2 pulled out the knife, M. O. 3, from his belt and stabbed the deceased 7 or 8 times on the chest and stomach. After about 5 minutes, the deceased became still. A-2 then removed the blood-stained dhoti, the bunch of keys M. O. 4 and the gold rings, M. O. 5 and M. O. 6, from the body of the deceased. The wrist-watch, M. O. 7, of the deceased was lying on the radio. A-2 removed this watch, also. A-2 then wrapped the dead-body with the carpet, M. O. 8, and tied its hands and feet with a rope. A-1 placed a towel on the mouth of the deceased. Then all the three dragged the corpse to the southern corner of the room and left it there. A-1 then opened the big iron-safe and took out three bundles of currency notes and passed them on to A-2 who put them in a white cloth bag. A-1 closed the safe and retained the key with him. A-1 and A-2 took the blood-stained dhoti of the deceased and the currency notes and went towards the side of the well. After washing themselves at the well they came back into the bed room and changed their own Dhoties with those of the deceased, kept for drying near the Pooja Room. A-1 then opened the front door of the house. A-2 first went out. Next did the approver. A-1 locked the interior doors of the house. He came out last and locked the front door. All the three, as previously agreed, then met for sharing the booty behind the Santhipalliaiyar Temple at a distance of one furlong from the house of occurrence. A-2 gave a few currency notes to A-1, who demanded more. A-2 thereupon gave the gold ring, M. O. 5, to A-1. Similarly, when the approver expressed dissatisfaction at the amount of the money given to him, A-2 gave the watch, M. O. 7, to him. They then dispersed.

21. There are concurrent findings of the courts below that the approver is reliable, and that his testimony has been sufficiently corroborated by the other evidence qua each of the appellants.

23. We have re-produced earlier the substance of the evidence of the approver. We have also gone through his statements on record. Barring inconsequential variations, the substratum of his evidence has throughout been consistent. We do not think that his testimony, in the main, is unreliable, or inherently improbable. The discrepancies or inconsistencies in his statements pointed out by the learned Counsel were duly considered by the courts below. It was found that they were no ground to reject the testimony of the approver. There is no good reason for us to take a different view.

25. We will first take up the case of A-1.

26. The main items of evidence which have been adduced by the prosecution to corroborate the approver may be catalogued as under:

(1) Presence of finger and palm prints inside the door of the iron-safe which, according to Finger-Print Expert, were of A-1;

(2) Seizure of Dhoti, M. O. 11, belonging to the deceased, from the person of A-1 soon after his arrest by the police on May 2, 1971;

(3) Two days after the murder, A-1 sold gold-ring, M O. 5, of the deceased, to P.W. 12, and after his arrest, caused its recovery from P.W. 12;

(4) Recovery of the bunch of keys, M. O. 4, at the instance of A-1 from the thatch in the backyard of the deceased.

27. Evidence with regard to item (1) was given by P.W. 21, Superintendent of Finger Print Bureau, and P.W. 22, a photographer. The trial court accepted that evidence and held that the palm print found on the big iron-safe was proved to be that of A-1. The High Court has reproduced the evidence of P.W. 21 but as not discussed it, possibly because the learned Counsel for the State did not stake any argument on it. No useful purpose will therefore be served by burdening this judgment with a discussion of that evidence.

28. Regarding item (2), there is the unanimous finding of the courts below that the Dhoti (M. O. 11) was seized from the person of A-1 by P.W. 27 as per Memo Exh. P-23 on May 2, 1971 soon after his arrest, and that this Dhoti (M. O. 11) was proved to be that of the deceased because it bore the Dhobi mark 29. In this connection, reliance was placed on the evidence of the Dhobi, P.W. 8. We are not persuaded to disturb that concurrent finding of facts. This circumstance furnishes useful corroboration of the testi-mony of the approver in regard to the complicity of A-1 in the crime.

30. This evidence, which was not discussed by the Sessions Judge, has been considered by the High Court in these terms:

P.W. 1 stated in his evidence that the first appellant told him that he threw away the key of the big iron-safe at the backyard when he went there for washing his hands at the well and he (the first appellant) took with him the bunch of keys, M. O. 4 series and the key of the outer door lock. P.W. 1 also stated that the second appellant after the commission of the offence took M. O. 4 series from the waistcord. of Muthiah Pillai, and he (P.W. 1) also stated that those keys were the keys for the drawers in the big Iron Safe. P.W. 27 stated, that the first appellant took him to the house of Muthiah Pillai and from the stacked thatch, he produced M. O. 4 series which he received under Exhibit P-22. In cross-examination P.W. 27, stated that after the seizure of M. O. 4 Series, lie did not put the keys on the irotv-safe to find out whether they really suit it. He also stated that he did not ask the first appellant to open She Iron Safes and . that he himself opened the two safes. After the seizure of M. P. 4 series, he took the first appellant to the Police Station and asked him as to how it could be opened and that the first appellant told him how the Iron Safe (sic) be opened. He thereafter opened the Iron Safe. In Exhibit P-9, P.W. I stated that when he asked the first appellant as to where the key of the Iron, Safe was, he told him that while he was washing his hands, he threw away the same at the back-yard.

31-32 It was contended before the High Court and that argument has been repeated before us-that if the key had been thrown, as the approver has deposed, by A-1 at the backyard, then it was not explained how that key together with others in the bunch, M. 0. 4, could be recovered from the thatch at the instance of A-1. The High Court tried to meet this argument thus:

We are unable to see how the evidence relating to the first appellant throwing away the key of the Iron Safe is inconsistent with the possible existence of another key in M, O, 4 series to suit or open the Iron Safe. It has not been suggested either to P.W. 1 or to F. W. 27 that a duplicate key for the big Iron Safe was not available in, M. 0. 4 series and that a separate key for the purpose of opening the big Iron Safe has been introduced by the Sub-Inspector of Police, P.W. 27, in the bunch of keys, M. O. 4 series.

33. This finding, it is manifest, does not rest on terra firma. To prop it, the learned judges had to resort to conjecture. There was no evidence on the record to show that A-1 had a duplicate key of the Iron-safe, apart from the one found in the bunch M. O. 4. This evident gap in the prosecution evidence could not be filled by surmise, howsoever plausible. We therefore, think it unsafe to rely on this piece of evidence.

34. Item {4) is the most telling circumstance that unerringly connects A-1 with the commission of the crime in question. The concurrent findings of the courts below are:

(a) That the gold rings, M. O. 5 and M. O, 6, belong to the deceased who used to wear them and that these rings were found missing from his corpse at the time of its recovery. (On this point, the courts have inter alia relied upon the evidence of F. Ws. 8, 5 and 1).

(b) That on April 17, 1971 at about 9 .. m., A-1 pledged this gold ring (M. O. 5) with P.W. 12 for Rs. 30/-, and later, on 2-5-1971, it was recovered by the Police Sub-Inspector (P.W. 27) in the presence of P, W. 13, from P.W. 12, pursuant to the information and the lead given by A-1.

35. The courts below have found the evidence of P. Ws. 12, 13 and 27 with regard to the recover of this ring fully trustworthy. It has not been shown that the evaluation of this evidence made by the High Court suffers from any gross error or material flaw which would necessitate its re-appraisement by this Court.

36. It was argued that the investigation in this case was dishonest; that the evidence with regard to the finger-prints on the iron-safe, the recovery of bunch of keys and the date of the arrest of A-1, had been fabricated, and that consequently, the courts should have, as a matter of prudence, held the entire prosecution evidence to be suspect Reference was also made to certain newspapers reports published on 22-4-1971 and 24-4-1971 to show that A.-1 had been arrested on 23-4-1971 and that the iron-safe was opened by the police with the key on 22-4-1971.

37. We see no merit in this contenuon. There was no ground to hold that the prosecution evidence with regard to the finger-prints or the recovery of the bunch of keys or that relating to the date of arrest of A-1 and the opening of the iron-safe by the police, was false and fabricated. It was not suggested to the Investigating Officer (P.W. 27) that these gold-rings, M. O. 5 and M. O. 6, did not belong to the deceased. On the contrary, the trend of cross-examination of P.W. 12 shows that it was accepted as a fact that this gold-ring (M. O. 5), on which the first initial of the deceased has been engraved, belonged to the deceased. It was suggested to the witness that this inscription should have put him on inquiry as to its ownership.

38. Be that as it may, the courts below have accepted the evidence of these recoveries. The trial court found P. Ws. 21 and 22 worthy of credence and held that the palmprint found on the iron safe was of Al. The High Court also took notice of that evidence, though without comments as to its reliability or otherwise. Nor did the High Court hold that the evi dence relating to the recovery of the bunch of keys at the instance of A-1, was unreliable. Rather, it found this evidence worthy of credit. We have chosen not to act on that evidence, only as a matter of abundant caution. The only infirmity in the appraisement of that evidence by the High Court, was that a missing link was sought to be supplied by an inference on speculative premises. This conjecture drawn by the High Court was not altogether implausible in view of the entries in the diary of the deceased that A-1 had on previous occasions, also stolen the keys of the iron-safe. This entry was among those which were relied upon by A-1.

40. Approver had stated how after the murder, the two gold rings, including M. O. 5, were removed by A-2 from the corpse of the deceased and how thereafter M. O. 5 was given by A-2 to A-1, as the Hatter's share of the booty. On this vital point, the evidence of the approver stood cogently corroborated by the evidence in item 4.

41. Furthermore, there was general corroboration of the approver in regard to the motive and the occasion for committing the crime. Two diaries, Ex. P-2 and P-3, in the hands of the deceased, were tendered in evidence. Extracts from these diaries were relied upon by A-1 in his written statement. These diaries contain tell-tale entries. They support the prosecution story that A-2(1) was not only a domestic servant of the deceased but also had homosexual relations with him. A-1 exploited this weakness of the deceased, and frequently stole away cash and other articles from his house. Evidently for fear of exposure, the deceased felt helpless and miserable and suffered in silence the pecuniary losses and indignities inflicted by A-1. There is an entry of November 11, 1970 showing that Subrarnanian (A-1) left the service of the deceased on that day. Murder was committed about five months and five days after that date,

43. The promissory note, dated August 25, 1969, for. Rs. 1,000/- executed by A-1 in favour of the deceased was another item of evidence that confirmed the testimony of the approver qua A-1. P.W. 14 not only proved the execution of this note but also the fact that the deceased had got it executed in consideration of the value of the articles stolen by A-1.

45. There is still another circumstance which lends support to the evidence of the approver. After the murder, A-1 took out the currency notes from the iron- safe and passed them on to A-2 who subsequently gave a few of them to A-1 and P.W. 1 retaining the most of them with him. As concurrently found by the courts below, A-2, had, in the beginning of April 1971, borrowed Rs. 500/- from Perumal Kohar (P.W. 18) of village Kovilpatti; and some days after the murder, A-2 though a person of humble means, was able to return that loan in full in the shape of 50 currency notes of the denomination of Rs. 10/- each. After his arrest, A-2 got those very currency notes recovered from P.W. 18. The courts below found that P.W. 18 was an independent and reliable witness. We have no reason to differ from that conclusion. This circumstance, though not of a conclusive tendency, does lend assurance to the evidence of the approver in regard to the theft of these currency notes.

47. In the light of what has been said above, it is clear that the evidence of the approver had been adequately corroborated from independent sources against both the appellants. They were therefore rightly convicted of the murder of the deceased and allied charges.

49. In the result, the appeal stands dismissed except to the extent indicated above.

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