Madras High Court
Shekar @ Anam Somashekar vs State Represented By on 30 September, 2021
Criminal Appeal No.670 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.09.2021
CORAM
THE HONOURABLE MR. JUSTICE P.N.PRAKASH
and
THE HONOURABLE MRS.JUSTICE R.HEMALATHA
Criminal Appeal No.670 of 2018
and
Crl.M.P.No.14419 of 2018
Shekar @ Anam Somashekar
S/o.Veeraraju .. Appellant
Vs.
State represented by
The Inspector of Police,
R2 Kodambakkam Police Station,
Kodambakkam, Chennai. .. Respondent
Criminal Appeal filed u/s.374(2) of the Code of Criminal Procedure
against the judgment and order dated 16.07.2004 passed in S.C.No.256 of
2000 on the file of learned IV Additional Sessions Judge, Chennai (City
Sessions Court, Chennai).
1/14
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Criminal Appeal No.670 of 2018
For Appellant : Mr.S.Nambirajan
For Respondent : Mr.M.Babu Muthu Meeran
Additional Public Prosecutor
*****
JUDGMENT
[Judgment of the Court was delivered by P.N.PRAKASH, J]
This criminal appeal is directed against the judgment and order of
conviction and sentence dated 16.07.2004 passed by the learned IV
Additional Sessions Judge, Chennai (City Sessions Court, Chennai), in
S.C.No.256 of 2000.
2. The prosecution story runs thus:
2.1. The deceased Raja and Hemavathi [PW-1] were working as
tailors in a garment export company. They fell in love with each other. They
resigned from their job to start a tailoring unit of their own. Accordingly,
Raja took on rent a shop, door no.35, Saidapet Road, Chennai, belonging to
Subramani [PW-3] and started a tailoring shop. In the day time, Hemavathi
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Criminal Appeal No.670 of 2018
[PW-1] used to come to help him. Though Raja's parents were living in
Avadi, Raja used to stay at night in the shop.
2.2. The appellant hailed from the neighbouring Andhra Pradesh State
and had come to Chennai for employment. He joined the tailoring shop of
Raja (deceased) as an assistant during the relevant time. It is the specific
case of the prosecution that Raja was a very bad master and used to abuse
and beat the appellant frequently, on account of which, it is alleged that on
the night of 24/25.07.1997, while Raja was sleeping in his shop, the
appellant is said to have caused his death by belabouring him with an iron
rod and thereafter, purloined a gold ring that was worn by Raja. After day
break, the appellant locked the shop from outside and absconded. As usual,
Hemavathi [PW-1] came to the shop in the morning of 25.07.1997 and
found the shop locked. She went to the house of Raja in Avadi and did not
find him there. Since Raja was not reachable, Hemavathi [PW-1] came again
to the shop after dusk and finding the door locked, she entertained a
suspicion that something was amiss. She borrowed a stool from a
neighbouring shop, got over it and peeped through a window over the door.
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Criminal Appeal No.670 of 2018
Since it was dark inside, she borrowed a torch light and looked inside in the
light of the torch and found Raja lying on the floor. With the help of
Subramani [PW-3] and other neighbours, she broke open the lock, entered
the shop and was shocked to find Raja dead.
2.3. On a written complaint [Ex.P1] given by Hemavathi [PW-1],
Sivasangu [PW-11], Inspector of Police (hereinafter referred to as the
'Investigating Officer'), registered a case in R2 Kodambakkam P.S.Crime
No.1332/97 on 25.07.1997 at 20.00 hours u/s.302 and 380 IPC against the
appellant and prepared the printed First Information Report Ex.P12, which
reached the jurisdictional Magistrate at 02.00 a.m. on 26.07.1997, as could
be seen from the endorsement thereon.
2.4. Thereafter, the Investigating Officer [PW-11] went to the place of
occurrence and prepared an observation mahazar [Ex.P2] in the presence of
witnesses Balu [PW-2] and Koteeswaran (not examined) and a rough sketch
[Ex.P13]. The Investigating Officer [PW-11] recovered the following items
under the cover of a mahazar [Ex.P3] in the presence of the same
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Criminal Appeal No.670 of 2018
witnesses:
(i) a pair of scissors with bloodstains [MO-1];
(ii)an iron rod with bloodstains [MO-2];
(iii)a pillow with bloodstains [MO-4];
(iv)a sleeping mat with bloodstains [MO-5];
(v) pieces of cement floor with bloodstains [MO-6]; and
(vi)pieces of cement floor without bloodstains [MO-7].
The seized articles with bloodstains were sent to the Tamil Nadu Forensic
Sciences Department through the jurisdictional Magistrate for examination
and report. The biology report [Ex.P11] shows that blood was detected in all
the items except in the pieces of cement floor without bloodstains.
2.5. The Investigating Officer [PW-11] conducted inquest over the
body of Raja. The inquest report was marked as Ex.P14. Thereafter, the
body was sent to the Government Hospital, Royapettah, for postmortem
where Dr.R.Baskar [PW-7] performed autopsy on the body of Raja and
noted nine injuries. The postmortem certificate was marked as Ex.P10. After
obtaining the viscera report, Dr.R.Baskar [PW-7] gave his final opinion as
to the cause of death in the postmortem certificate [Ex.P10], which reads as
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Criminal Appeal No.670 of 2018
under:
'The deceased would appear to have died of haemorrhage, shock
and due to multiple injuries sustained by him. The above injuries are
ante-mortem in nature. Death would have occurred 15 to 30 hours
prior to autopsy.'
2.6. While the police were on the look out for the appellant, it appears
that the appellant was arrested by Beemavaram police in Andhra Pradesh in
Seeravasara P.S.Crime No.17/97 for the offences u/s.120-B, 299, 399, 302
r/w 34 IPC on 01.08.1997. During the interrogation of the appellant by the
Andhra Pradesh police, he disclosed about his involvement in the present
case and accordingly, the Investigating Officer [PW-11], in this case, was
intimated about it by the Andhra Pradesh police.
2.7. The Investigating Officer [PW-11] took steps to have the
appellant brought to Chennai by approaching the jurisdictional Magistrate
for issuance of a prisoner transit warrant and on production of the appellant,
the Investigating Officer [PW-11] arrested the appellant in this case and
recorded his confession statement.
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Criminal Appeal No.670 of 2018
2.8. Pursuant to the disclosure made by the appellant, the
Investigating Officer [PW-11] seized a gold ring [MO-3] from one
Sargunamma and a pawn ticket [Ex.P6].
2.9. After examining the witnesses and collecting the various reports
of the experts, the Investigating Officer [PW-11] completed the
investigation and filed a final report in P.R.C.No.2701 of 1998 in the Court
of XVII Metropolitan Magistrate, Saidapet, Chennai, for the offences
u/s.380 and 302 IPC, against the appellant.
2.10. On appearance of the appellant, the provisions of Section 207
Cr.P.C. were complied with and the case was committed to the Court of
Session in S.C.No.256 of 2000 and was made over to the IV Additional
District and Sessions Court, for trial. The trial Court framed charges u/s.380
and 302 IPC against the appellant and when questioned, the appellant
pleaded 'not guilty'.
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Criminal Appeal No.670 of 2018
2.11. To prove the case, the prosecution examined 11 witnesses and
marked 16 exhibits and 9 material objects. When the appellant was
questioned u/s.313 Cr.P.C. on the incriminating circumstances appearing
against him, he denied the same. None was examined from the side of the
appellant and no exhibit was marked.
2.12. After considering the evidence on record and hearing either
side, the trial Court, by judgment and order dated 16.07.2004 in S.C.No.256
of 2000, convicted and sentenced him as follows :
Provision under which
Sentence
convicted
Section 302 IPC Rigorous life imprisonment
Section 380 IPC 3 years rigorous imprisonment.
2.13. Challenging the aforesaid conviction and sentences, the accused
filed the present appeal with a delay of 5095 days, which was condoned by
this Court and this appeal was taken on file.
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Criminal Appeal No.670 of 2018
3. Heard Mr.S.Nambirajan, learned counsel for the appellant and
Mr.M.Babu Muthu Meeran, learned Additional Public Prosecutor, appearing
for the respondent State.
4. The prosecution case hinges on the evidence of Hemavathi [PW-1]
and Subramani [PW-3]. Hemavathi [PW-1], in her evidence, has stated that
she and Raja were working in an export company and thus, they got
acquainted with each other; thereafter, they fell in love, decided to quit the
export company and start a tailoring shop; accordingly, Raja took on rent a
shop in Door No.35, Saidapet Road, where the appellant was employed as
an assistant; on 24.07.1997, around 4.45 in the evening, Raja dropped her
[PW-1] in Triplicane bus stand and left for the shop; Raja and the appellant
used to stay in the shop; on 25.07.1997, she [PW-1] came to the shop at
10.00 a.m. in the morning and found it locked; she waited in a nearby shop
till 02.30 p.m. and thereafter, she went to the house of Raja in Avadi, where
she was told by Raja's father that he had not come there; hence, she came to
the shop again in the evening at 5'o clock and found the shop locked; this
aroused a suspicion in her mind and at around 07.30 p.m., she borrowed a
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Criminal Appeal No.670 of 2018
stool from a nearby shop, climbed over it and peeped through the window of
the grill and found Raja lying on the floor; she immediately alerted the
neighbours and soon Subramani [PW-3], the owner of the shop came; they
all broke open the lock and went inside the shop and found Raja lying on
the floor dead; she gave a written complaint [Ex.P1] to the police; she
identified the appellant and also the gold ring [MO-3], belonging to Raja.
5. Subramani [PW-3], in his evidence, has stated that he is the owner
of the shop and had let out the shop to Raja for running a tailoring shop six
months prior to the occurrence; he knows the appellant, who was employed
in the shop; on 24.07.1997 at 07.30 p.m., he saw the appellant working in
the shop of Raja and again on 25.07.1997 at 7.30 a.m. he saw the appellant
locking the shop and going out; on the same day, PW-1 came again looking
out for Raja and at 7.30 in the night, they all peeped through a window and
in the light of a torch, saw Raja lying on the floor; so they broke open the
lock and found the body of Raja.
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Criminal Appeal No.670 of 2018
6. The defence was not able to make any dent in the cross-
examination of Hemavathi [PW-1] and Subramani [PW-3]. In fact, in the
cross-examination, Subramani [PW-3] has stated that the appellant alone
was employed in the shop of Raja and there was no other worker. Subramani
[PW-3] has further reiterated in the cross-examination that on 24.07.1997,
he had seen Raja and the appellant working in the shop. Subramani [PW-3],
who is the landlord, was residing next to the shop and therefore, he knew
what was happening there.
7. Learned counsel for the appellant contended that the police have
not marked any rental agreement or any document to show that Raja had
taken the shop of Subramani [PW-3] on rent.
8. We are unable to appreciate this contention, because, it is not in
every case that a landlord would take written agreements from tenants those
days. The fact that Raja was running a tailoring unit in door no.35, Saidapet
Road, has been spoken to not only by Hemavathi [PW-1] and Subramani
[PW-3] but also by Balu [PW-2] and Thiyagarajan [PW-5]. Under such
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circumstances, we are unable to disbelieve the evidence of Subramani [PW-
3] that he is the owner of the shop and that he had let out the shop to Raja.
9. That apart, the conduct of the appellant is, indeed, very important,
in that, after the occurrence on 25.07.1997, the appellant absconded. He was
arrested by the Andhra Pradesh police on 01.08.1997 in Seeravasara
P.S.Crime No.17/97 and only after the Andhra Pradesh police intimated the
Tamil Nadu police, the appellant was brought to Tamil Nadu. The
testimonies of Hemavathi [PW-1] and Subramani [PW-3] clearly show that
the door of the shop was locked and they had to break open the lock for
opening the door of the shop. The evidence of Subramani [PW-3] is that on
25.07.1997 at 07.30 a.m., he saw the appellant locking the shop and going
out, after which, the appellant becomes scarce and on the same day evening,
after Hemavathi [PW-1] peeped through the window and found Raja lying
on the floor, the lock was broke open at 07.30 p.m. These circumstances,
which have been proved satisfactorily by the prosecution, cannot be
ignored.
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Criminal Appeal No.670 of 2018
10. As regards the recovery of the gold ring [MO-3], the prosecution
has failed to examine Sargunamma, from whom the said gold ring [MO-3] is
said to have been recovered. Therefore, we are unable to sustain the
conviction of the appellant u/s.380 IPC.
In fine, this Criminal Appeal is partly allowed. The conviction and
sentence imposed on the appellant for the offence u/s.380 IPC are set aside
and accordingly, the appellant is acquitted of the charge u/s.380 IPC.
However, the conviction and sentence for the offence u/s.302 IPC stand
confirmed. Consequently, connected miscellaneous petition is closed.
[P.N.P., J] [R.H., J]
30.09.2021
Index: Yes/No
gm
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Criminal Appeal No.670 of 2018
P.N.PRAKASH, J
and
R.HEMALATHA, J
gm
To
1.The IV Additional Sessions Judge,
Chennai (City Sessions Court, Chennai).
2.The Inspector of Police,
R2 Kodambakkam Police Station,
Kodambakkam, Chennai.
3.The Superintendent,
Central Prison,
Rajamahendravaram,
East Godawari District,
Andhra Pradesh.
4.The Public Prosecutor,
High Court, Madras.
Criminal Appeal No.670 of 2018
30.09.2021
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