IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21-11-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.Nos.715 and 759 of 2004 N.Hariharan @ Hari .. Appellant in CA 715/2004 1.Samikannu @ Sami 2.Marimuthu @ Mari 3.Meganathan @ Megha 4.Senthilkumar @ Senthil 5.S.Babu 6.E.Premkumar @ Prem 7.P.G.Ramachandran @ Manoharan .. Appellants in CA 759/2004 vs State by: The Deputy Superintendent of Police CB CID, Metro Wing, Chennai 2 K4 Anna Nagar Police Station Cr.No.1440/2001 .. Respondent in
both appeals
Criminal appeals preferred under Sec.374 of Cr.P.C. against the judgment of the Additional District and Sessions Judge cum Fast Track Judge-I, Chennai, made in S.C.No.206 of 2003 dated 19.4.2004.
For Appellants : Mr.G.Ravikumar
for A-2 in CA 715/2004
Mr.T.K.Sampath
for A-4 to A-7 and
A-14 in CA 759/2004
Mr.R.Sankarasubbu
for A-3 in CA 759/2004
Mr.S.Manohar for A-11
in CA 759/2004
Mr.P.Kumaresan
Additional Public
Prosecutor
COMMON JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)
This judgment shall govern these two appeals namely C.A.Nos.715 and 759 of 2004, the former filed by A-2 and the latter by A-3, A-4, A-5, A-6, A-7, A-11 and A-14, who along with A-1, A-8, A-10, A-12 and A-13 stood charged, tried, found guilty and awarded the punishment as follows:
ACCUSED
CHARGES
FINDING
PUNISHMENT
A-1 to A-3
120-B IPC
Guilty
Life sentence with a fine of Rs.50000/-
A-3, A-6 and A-8
344, 365, 363 IPC
A-3 and A-6 guilty
A-8 not guilty
2 years RI with a fine of Rs.5000/- i/d 6 months RI u/s 344
5 years RI with a fine of Rs.10000/- i/d 2 years RI u/s 365
5 years RI with a fine of Rs.7000/- i/d 1 year RI u/s 363
A-1 to A-14
364 IPC
A-1 to A-7, A-11 and A-14 guilty
A-8, A-9,A-10, A-12 & A-13 not guilty
10 years RI with a fine of Rs.10000/- i/d 2 years RI
A-1 to A-14
302 IPC
A-1 to A-7, A-11 and A-14 guilty
A-8, A-9,A-10, A-12 and A-13 not guilty
Life sentence with a fine of Rs.50000/- each
A-4, A-5
379 IPC
Guilty
2 years RI
2.Necessary facts for the disposal of these appeals could be stated as follows:
(a) P.W.1 is a resident of Santhi Colony, Anna Nagar, Madras. The deceased Jayakumar is the brother of P.W.1. P.W.2 is the mother of P.W.1 and the deceased. P.W.3 is the wife of the deceased. In the year 1999, they were all residing in the said place. P.W.2 owned a house in Door No.223, Block ‘N’, Anna Nagar, Madras. Prior to the marriage of P.W.1, they were all residing in the said house. In the year 1999, the said house was mortgaged by P.W.1, the deceased Jayakumar, P.W.2 and her husband Dhakshinamoorthy with South East Benefit Fund, Mandaiveli, Madras, as security for the loan of Rs.10 lakhs availed by them. The said sum of Rs.10 lakhs was taken by both P.W.1 and the deceased each Rs.5 lakhs. It was agreed that Jayakumar should enjoy the property, and after redemption of the mortgage, he should own the property. But, Jayakumar did not make the instalments towards the mortgage properly. Hence the property was brought in public auction in the year 2000, and an auction notice was issued. Whenever notices were issued either P.W.1, or Jayakumar paid Rs.25000/- on every instances and stopped the sale. Then all the family members decided to sell the property and to pay the mortgage debt. But, Jayakumar was not amenable for that. He undertook that he would redeem the mortgage however as per the original understanding.
(b) In August 2001, the public auction sale notice was again issued by the Benefit Fund. P.W.2 requested P.W.1 to ask Jayakumar to make necessary arrangements. Whenever P.W.1 informed about the mortgage to Jayakumar, he did not show interest; but, he was promising that he would however redeem the mortgage. When P.W.1 informed to P.W.2 about the situation, P.W.2 replied that Jayakumar was well acquainted to A-1 Senthilkumar, who was the nephew of Mayor M.K.Stalin and also the grandson of DMK President; that Jayakumar has lent lakhs of rupees to A-1; that A-2 has assured Senthilkumar to take necessary steps to wipe off the interest on the mortgage loan, and hence there might not be any difficulty for Jayakumar in closing the mortgage debt. Till the time of sale, the mortgage was not redeemed. The property was purchased by one Raja in public auction. When Jayakumar came to know about the same, he left the house and was staying in his friend’s house at Perambur. P.W.3 Hemalatha, the wife of Jayakumar, informed the family members that only after the mortgage problem is solved, she would come back. Since the auction purchaser did not make the entire sale price, the sale was cancelled. Jayakumar informed P.W.3 that A-1 had phoned over to him that he was keeping the money ready, and thus he left his friend’s house from Perambur. Thereafter, for a few days, the whereabouts of Jayakumar was not known.
(c) P.Ws.1 and 2 verified from P.W.3 at Bangalore through phone whether Jayakumar was at Bangalore. She replied that Jayakumar phoned to her on the previous day, and hence P.Ws.1 and 2 need not worry. In view of that reply, P.Ws.1 and 2 kept quiet for some time. Since they could not get any information about Jayakumar, on 14/15.10.2001, P.W.1 gave a report to K4 Anna Nagar Police Station, which is marked as Ex.P1. On the strength of Ex.P1, the complaint, P.W.46, the Sub Inspector of Police, attached to K4 Anna Nagar Police Station, registered a case in Crime No.1440 of 2001 for man missing. The printed FIR, Ex.P98, was despatched to the Court.
(d) A-1 Senthilkumar, a native of Mayiladuthurai and a graduate in business administration (MBA), committed an offence of abducting a person for ransom, and a case was registered under Sections 341, 342, 363 and 323 IPC by Mayiladuthurai Police Station in Crime No.33 of 1999. That case was pending in C.C.No.1798 of 2000 before the Judicial Magistrate No.I, Mayiladuthurai.
(e) In the month of April 2000, P.W.12, Mohan Babu, developed a contact with A-1. On one day, A-1 handed over Rs.1 lakh for the purchase of clothes. The said incident raised an image of A-1 with P.W.12. A-1 also misrepresented to P.Ws.6, 7, 12, 22 and 24 and others that he was going to marry the daughter of the former Mayor of Chennai Corporation and also pretended as if he had close acquaintance with the son of the Mayor. On the instructions of A-1, P.W.12 received Rs.80,000/- from the deceased Jayakumar at Anna Nagar, and the same was handed over to A-1 at Perambur Railway Station during which P.W.7 was also present. The said amount was given by the deceased for the redemption of the mortgage. P.W.6 Manickam paid Rs.10000/- to A-1 for securing an employment for him. A-1 pretended as if he was a close relative of the Mayor. The deceased Jayakumar was introduced to A-1 by P.W.6.
(f) P.W.7 wanted to get a transfer to Chennai for his wife who was working as a teacher at the native place. On the misrepresentation of A-1 to get such a transfer order, P.W.7 paid different amounts on number of occasions. But, A-1 did not do anything in that regard.
(g) P.W.22 Selvarangan paid Rs.1 lakh to A-2 and A-14 i.e., Rs.10000/- by cash and Rs.90000/- through two demand drafts each for Rs.45000/- in the name of A-2 for getting an employment for him. The said amount was received by A-2, and the same was utilised during the relevant period by A-1 and A-2 for the commission of the offence. During the said period, P.W.24 had close acquaintance with A-1. The jewels of P.W.24’s wife were stolen, and a case was registered by the concerned police in that connection. A-1 asked him to pay Rs.20000/- for securing the jewels, but P.W.24 refused. In turn, A-1 asked him to talk like Udayanidhi, the son of the former Mayor of Chennai. Accordingly, whenever it was required, A-1 used to call P.W.24 to come and prepare note containing the required conversation. Then A-1 used to make the call and made P.W.24 to converse the same in the telephone.
(h) On receipt of the auction sale notice, the deceased Jayakumar left the house with disturbed mind and also doubted the assurance given by A-1 that he would help him in the redemption of the mortgage. Hence he visited the house of the former Mayor and enquired about A-1 with his personal assistant and came to know that A-1 had no connection with the former Mayor and all his claims were false. Being annoyed with the conduct of A-1, Jayakumar informed the same to P.W.12. Both the deceased and P.W.12 went to A-2 Hari @ Hariharan and quarreled with A-1. Both asked A-1 either to get back the house under the mortgage or to return the moneys which he got. A-1 instructed A-2 to go to his mother-in-law’s house. Accordingly, A-2 left the place. The deceased informed A-1 that he was not going to get back the mortgaged house, and hence he had no option than to prefer a complaint to the Commissioner of Police, Chennai. The behaviour of the deceased provoked A-1, and he took a decision to eliminate Jayakumar. Hence A-1 entered into a conspiracy with A-2 and A-3 in that regard.
(i) On the directions of A-1 and A-2, A-3 arranged his associates to murder Jayakumar. Pursuant to the conspiracy, A-1 informed the deceased to come and meet him at Tiruvanmiyur to collect the money. On that day, the deceased was staying in P.W.12’s house. Hence the deceased Jayakumar informed the same to P.W.12. Both the deceased Jayakumar and P.W.12 left the house and reached Tiruvanmiyur at 4.00 P.M. and they were waiting for A-1’s call till 8.00 P.M. At about 8.00 P.M. Jayakumar contacted A-1’s cell, and A-1 replied that he could go to Aavichi School at Vadapalani. Accordingly, both Jayakumar and P.W.12 reached Aavichi School, Vadapalani. On the instructions of A-1, A-3 and A-6 engaged a house at Virugambakkam and also engaged two Ambassador Cars bearing Registration Nos.TN04 D 8379 belonging to P.W.18 Selvam, and TN09 H 3535 belonging to P.W.25 Sebastian. A-4, A-5, A-6, A-7, A-9, A-10 and A-12 used the Car bearing registration No.TN09 H 3535 and reached Virugambakkam house and were waiting for the arrival of A-3, while A-3 and A-11 to A-13 took the other ambassador car and reached Aavichi School at Vadapalani. From there, A-3 and other accused took Jayakumar to Virugambakkam house. P.W.12 also followed the vehicle. After reaching the said house at Virugambakkam, the deceased Jayakumar and P.W.12 were detained in the said house from 23.8.2001 to 4.9.2001. When Jayakumar and P.W.12 were in the custody of A-3 and his associates from 23.8.2001 at Virugambakkam house, A-3 seized the complaint written by Jayakumar dated 24.8.2001 which was addressed to the Commissioner of Police, Chennai City, and the same was handed over to A-1.
(j) While the deceased Jayakumar and P.W.12 were detained in the house at Virugambakkam from 23.8.2001 to 4.9.2001, from the possession of the deceased Jayakumar, the gold ring, M.O.7 and the cell phone, M.O.20, were stolen by A-4 Marimuthu and A-5 Meganathan respectively.
(k) P.W.21 Soundararajan was the caretaker of Virugambakkam house. He insisted them to vacate the house. Accordingly, A-3 and others vacated the house on 4.9.2001. On request by A-3, A-8 Gobi arranged his grandmother’s house at Athipakkam near Vandavasi. A-3 contacted P.W.19 Manohar Singh and engaged a TATA Sumo bearing registration No.TN02 E 8110 driven by P.W.16 Krishna Sagar. On 4.9.2001, P.W.16 along with A-8 and A-3 while coming to Virugambakkam house, visited Vijaya Health Centre, Vadapalani, where A-3 met A-1, A-2 and A-14. After receiving instructions from A-1 and A-2, A-3 left for Virugambakkam in the TATA Sumo. After reaching Virugambakkam house, A-3 and his associates namely A-4, A-5, A-7, A-8, A-9 and A-11, boarded the deceased Jayakumar and P.W.12 Mohan Babu in the TATA Sumo and have taken them to Athipakkam Village near Vandavasi. A-6 Senthilkumar took the motorcycle of P.W.12 and reached the said house. A-3 was waiting at Vandavasi for A-1 and others. Accordingly, A-1, A-2 and A-14 reached Vandavasi in the white ambassador car, M.O.15, and A-5, A-8 and A-11 also reached there in the TATA Sumo car, M.O.13, along with them. After reaching Athipakkam Village, A-8 introduced his relative and the tenant P.W.31 Selvaraj to A-3 and requested P.W.31 to help A-3 for comfortable stay and food.
(l) On 11.9.2001 on the request of A-3, P.W.31 introduced P.W.23 Vadivelu, watchman/room boy of Chakkaravarthy Lodge, and P.W.31 requested P.W.23 to give two rooms for the stay of A-1, A-2 and A-14. Between 9.9.2001 and 11.9.2001, A-1 and A-2 were staying in the house of P.W.7 Christopher. P.W.23 Vadivel, the Night Watchman and in-charge during the night hours of the said lodge, made entry in the register, Ex.P33, and entered the address of A-8 J.Gopi and obtained his signature. P.W.23 allotted two rooms for A-1, A-2 and A-14.
(m) On 12.9.2001, A-1, A-2 and A-14 visited the grandmother’s house of A-8 at Athipakkam in the TATA Sumo driven by P.W.16 where the deceased Jayakumar and P.W.12 were detained. After reaching the said house, when P.W.12 was beaten, he fell down on the feet of A-1 to apologize him and requested A-1 to release him. In turn A-1 asked him to write a letter and read the same for recording purpose. Then, at the instance of A-1, A-3 forcibly made the deceased Jayakumar and P.W.12 Mohan Babu to write letters and the same were sent to their houses respectively. On 12.9.2001, A-1, A-2 along with the other accused A-3, A-4, A-5, A-6, A-7, A-8, A-11 and A-14 forced Jayakumar to write a letter, and the same was recorded in the tape recorder. Similarly, P.W.12 had written Ex.P13 letter and the same was also recorded. In the said letters, A-1 made them to write that Mohan Babu and Jayakumar threatened A-1 for money and also there was a mention about the names of Udayanithi, Paruthi Illamvazhuthi and M.K.Balan.
(n) During that time, P.W.31 Selvaraj helped A-3 and others for purchasing food items and liquor. He had seen P.W.12 and the deceased Jayakumar staying in the house of the grandmother of A-8. In the course of abduction and during the detention by the accused, the deceased Jayakumar was not ready to get apology from A-1 though P.W.12 requested for apology. Enraged over the conduct of the deceased Jayakumar, A-1, A-2, A-3 and A-14 decided to eliminate the deceased Jayakumar on the hills of Kodaikanal with the help of A-4, A-5, A-6, A-7, A-8 and A-11.
(o) Accordingly, on 12.9.2001, A-1, A-2 and A-14 vacated the rooms at Chakravarthy Lodge at about 6.00 P.M. and left for Kodaikanal in the Ambassador Car, while A-3, A-4, A-5, A-6, A-7, A-8 and A-11 along with P.W.12 and the deceased Jayakumar travelled in the TATA Sumo Car.
(p) The accused stayed in the Hotel at Kodaikanal along with the deceased Jayakumar and P.W.12, as stated by the witnesses. The TATA Sumo Car was driven by A-3 to the silent valley at Kodaikanal. After reaching the spot, A-3, A-4, A-5 and A-11 took pattakathi, Aruval, Pithuvakathi and Madakkukathi from the vehicle and A-6 and A-7 took wooden logs. A-1 tied the eyes of Jayakumar telling that he is going to take him to his uncle for getting apology. After moving a few yards and after receiving signal from A-1, A-2 had beaten Jayakumar with uruttu kattai, and A-3 took the pattakathi and cut him twice from the backside of Jayakumar on the right backside portion of the head. At that time, A-1 pasted a plaster on the mouth of Jayakumar. A-6 and A-7 gave blow on the stomach of Jayakumar with wooden logs. When Jayakumar fell down, A-11, A-4 and A-5 also stabbed him with their knives. A-1 instructed A-3 to find out whether he is alive or not. Accordingly, A-3 checked and declared him dead. At that time, A-6 and A-7 removed their shirts and tied the hands of the dead body of Jayakumar. Then, A-3, A-4, A-5, A-6, A-7 and A-11 lifted the body and threw away into the depth of silent valley. After committing the murder, A-3, A-4, A-5, A-6, A-7 and A-11 have changed their bloodstained shirts with newly purchased T Shirts.
(q) Subsequently after hearing the version of P.W.12, P.W.1 lodged a further complaint before the same police station, and P.W.47, the Inspector of Police, altered the case into Sec.363 of IPC and took up investigation. Ex.P100 is the FIR in that regard.
(r) On 28.3.2002, P.W.47, the Investigator obtained a copy of the confession of A-1 from the CB CID Office which was given by him while he was arrested in connection with MK Balan’s murder case in E5 Foreshore Estate Police Station Crime No.986 of 2001, and altered the case into Sections 120(B), 364, 365 and 302 of IPC at 3.00 P.M. on that day. The special report after alteration is Ex.P101.
(s) A-1 and A-2 were arrested on 27.5.2002. A-3 surrendered before the Court on 1.4.2002. A-4 and A-5 surrendered on 19.4.2002. A-6 was arrested on 23.6.2002. A-7 was arrested on 7.7.2002. A-8 was arrested on 30.6.2002. A-9 and A-10 were arrested on 3.7.2002. A-11 was arrested on 16.11.2002. A-12 was arrested on 23.11.2002. A-13 was arrested on 3.2.2003. A-14 was arrested on 26.2.2003.
(t) P.W.47 filed an affidavit before the V MM for taking custody of A-3 on 2.4.2002 and the duration of the police custody was from 3.4.2002 to 12.4.2002. On 6.4.2002, A-3 was taken to Kodaikanal and reached on 7.4.2002. A-3’s confession was recorded at the Bus Stand at 1.30 P.M. on the same day in front of Joseph and Inbaraj, and the admissible part is marked as Ex.P4. Then P.W.47 prepared an observation mahazar which is marked as Ex.P45 in front of the said witnesses on 7.4.2002, and a rough sketch which is marked as Ex.P101. On 9.4.2002, after the place was identified by A-3, P.W.5 had actually gone into the silent valley and took the three knives which are produced and marked as M.Os.8 to 10 and also the dead body. A-3 also identified the places where Jayakumar and P.W.12 were confined in Hotel Sangeeth. Then, P.W.47, the Investigating Officer, conducted inquest on the dead body of the deceased Jayakumar in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P7.
(u) Then on the request of the Investigator P.W.47, the postmortem was conducted on the dead body of Jayakumar in the Government Hospital, Kodaikanal. The postmortem was conducted by P.W.40, the Medical Officer, attached to the Rajaji Government Hospital, Madurai. P.W.40, after conducting autopsy, has issued a postmortem certificate, Ex.P59, and also final opinion under Ex.P60 that the deceased died of head injury 6 to 9 months prior to postmortem. He also gave opinion that there were three anti-mortem injuries, and they were cumulatively capable of causing death.
(v) On the request of P.W.47, the Investigator, the skull of the deceased Jayakumar was sent to the Anthropology Department, Tamil Nadu Forensic Sciences Laboratory, Madras, for conducting superimposition test. P.W.41 compared the skull of Jayakumar with the photographs and opined that the photographs of Jayakumar tallied with the skull sent. Further, the DNA profile test was conducted by P.W.43 Tmt.Vijaya and Exs.P73 to P95 were marked through her. After taking the blood samples of P.W.1, P.W.2 and Dhakshinamoorthy, the father of the deceased, DNA profile were developed, and the same tallied with the DNA profile of the bone marrow taken from the skull which was seized from the body recovered from the silent valley. P.W.43 in her analysis has found that the DNA profile was tallying with each other.
(w) The Investigator examined P.W.8, Gurusamy, who gave statement to the effect that A-1, A-2, A-8 and A-14 stayed in Astoria Hotel on 13.9.2001 and 14.9.2001. Exs.P10 and P11 are the GRC (Guest Registration Card) and the bill book receipt respectively. The Investigating Officer also examined and recorded the statements of P.W.14, Sakthivel, who was working as Receptionist of Hotel Sangeeth, Kodaikanal, and P.W.15 Raja, who was working as Room Boy at Hotel Sangeeth, Kodaikanal. P.W.14 gave the statement to the effect that on 13.9.2001 at 0800 hours, the accused persons arrived at the said hotel in TATA Sumo Car and also in white ambassador car, and A-3 Samikannu and A-6 Senthilkumar booked three rooms and made entry in the register of Hotel Sangeeth. The said register was recovered and marked as Ex.P14. On enquiry by A-3 about a better hotel, P.W.14 informed that Hotel Astoria was a better hotel for staying of the persons who are A-1, A-2, A-8 and A-14. P.W.14 has also given statement that all the accused who stayed in Hotel Sangeeth vacated the room on 15.9.2001 at 0840 hours.
(x) P.W.47 who altered the complaint as per the alteration report under Ex.P100, examined P.Ws.1, 2, 3, 6, 7, 11, 12, 13 and also other witnesses and recorded their statements. On 27.5.2002, A-1 and A-2 were taken to police custody till 3.6.2002. Both the accused were interrogated and confessional statements were recorded. A-4 and A-5 were taken to police custody, and during interrogation, they gave confessional statements. On their confession A-7 was arrested. On the confession of A-7, M.O.20, cell phone, M.O.21 T.Shirt, and M.O.7 gold ring, were recovered under a cover of mahazar. A-6’s confession Ex.P47 was recorded, and an observation mahazar, Ex.P29, and a rough sketch, Ex.P108, in respect of Virugambakkam house were prepared, and M.O.24, T.Shirt, was recovered under a cover of mahazar. That apart, Exs.P24 to Exs.P28, the letters despatched by A-6 to the residence of the deceased and P.W.12, were recovered. A-8 Gopi’s confessional statement was recorded in the presence of witnesses, and the same is Ex.P43, pursuant to which, the TATA Sumo Car M.O.13 was recovered under Ex.P44, mahazar. That apart, an Ambassador Car, M.O.15, belonging to P.W.17, was also recovered under a cover of mahazar. Exs.P15 to P18, P45 and P46 the documents, were seized. A-9 and A-10 gave confessional statements voluntarily which were recorded. On the confession of A-6, Ex.P40, T.Shirt M.O.22, and a route map, M.O.23, were recovered. A-9 Balan was taken to police custody, during which he gave a confessional statement which was recorded. The admissible part is Ex.P111, pursuant to which the ambassador car, M.O.17, and the trip sheet, M.O.17, were recovered under a cover of mahazar. On the basis of the confession of A-11 Premkumar, marked as Ex.P50, M.O.26, knife, was recovered under a cover of mahazar. Later he gave a judicial confession before P.W.44, the XIV Metropolitan Magistrate, Egmore, which was recorded under Sec.164 of Cr.P.C. The same is marked as Ex.P96. A-13 was taken to police custody, and at that time, he volunteered to give a confessional statement which was recorded. The confessional statement voluntarily given by A-14 was recorded, and the admissible part is marked as Ex.P54. Pursuant to the same, M.O.18, the tape recorder, and the adopter, M.O.19, were recovered under a cover of mahazar. Also M.O.27, the document register, was recovered.
(y) On requisition, the identification parade was conducted by the XXI Metropolitan Magistrate, P.W.35. During the parade, P.W.12 identified A-6, A-7, A-8, A-9 and A-10. P.W.16 identified A-6, A-7, A-8 and A-9. P.W.32 identified A-1, A-2, A-3, A-6, A-7 and A-8. P.W.38, the VI Metropolitan Magistrate, on request conducted identification parade during which P.Ws.8, 9 and 10 identified A-1, A-2 and A-8, while P.Ws.15 and 25 identified A-3 and A-6. P.W.39, the IX Metropolitan Magistrate, conducted identification parade, in which P.W.12 identified A-1, A-2, A-3 and A-5, while P.W.16 identified A-1, A-2, A-3, A-4 and A-5. P.W.45, the VIII Metropolitan Magistrate, conducted identification parade in which P.Ws.8, 10, 12 and 15 identified A-14, while P.W.25 identified A-11 and A-13. P.W.16 identified A-11, and P.W.18 identified A-11, A-12 and A-13. The identification parade proceedings are marked as Exs.P52, P53, P56 and P57 respectively.
(z) P.W.47 handed over the CD file to CB CID. P.W.49, the Deputy Superintendent of Police, CB CID, Metropolitan City, took up the case for further investigation. P.W.49 took police custody of A-1 and A-2 on 26.7.2002. M.Os.13 and 15, the vehicles which were used for kidnapping and murder of the deceased were seized and the relevant documents were also seized. Apart from that, the witnesses were examined and their statements were recorded. The witnesses identified the places used for confining the deceased and P.W.12 at Virugambakkam, Athipakkam (Vandavasi) and Kodaikanal. The Investigator seized the relevant documents and examined the witnesses concerned. He further seized the document relating to the pledging of the house, Ex.P3, of the deceased through P.W.1 on 10.7.2002 and examined concerned witnesses. P.W.49 seized the documents relating to bank account of A-2 including the DD received by him from P.W.12. He also seized the personal belongings of the deceased like photographs, diary, etc. On completion of the investigation, the Investigating Officer filed the final report on 26.3.2003.
3.The case was committed to Court of Session and necessary charges were framed. In order to substantiate the charges levelled against the appellants and other accused, the prosecution examined 49 witnesses and relied on 116 exhibits and 58 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. No defence witness was examined. On hearing the arguments advanced and looking into the materials available, the Court below took the view that the prosecution has proved the case beyond reasonable doubt as against A-1 to A-7, A-11 and A-14 and recorded an order of acquittal of A-8, A-9, A-10, A-12 and A-13. Hence A-2 has preferred C.A.No.715 of 2004 and others have preferred C.A.No.759/2004. A-1 has not preferred any appeal from the judgment of the trial Court.
4.Advancing arguments on behalf of the appellant/A-2 in C.A.No.715 of 2004, the learned Counsel Mr.G.Ravikumar would submit that totally 14 accused stood charged and tried before the trial Court out of whom A-1 to A-7, A-11 and A-14 were convicted and A-8, A-9, A-10, A-12 and A-13 were acquitted by the trial Court; that all the reasons which were applied for recording an order of acquittal to those accused were equally applicable to the appellant/A-2; that the trial Court has taken two different views on the two sets of accused, but on the same evidence; that on that ground, the judgment of the trial Court has got to be set aside; that according to P.W.1, his brother Jayakumar was missing for a period of two months that was from 28.8.2001; but, he has given his complaint only on 14.10.2001 under Ex.P1; that P.W.1 has lodged the second complaint on 6.2.2002 and the case was altered to Sec.365 IPC; that the prosecution commenced its story by stating that there was a conspiracy hatched up among A-1, A-2 and A-3 to kill the deceased Jayakumar; but, it has miserably failed to prove the same either by direct evidence or by any circumstantial evidence; that the motive that was attributed to A-1 to murder the deceased Jayakumar was that he borrowed a sum of Rs.2 lakhs from the deceased Jayakumar and repeatedly quarrel had taken place between them; but, even P.W.1, the brother, P.W.2, the mother, and P.W.3 the wife of the deceased, nowhere have stated in their evidence that A-1 borrowed Rs.2 lakhs from the deceased; that so long that fact is not proved, it can be well stated that the motive attributed to A-1 remained not proved; and that under the circumstances, there was no need for any conspiracy to be hatched up by A-1 along with A-2 and A-3.
5.Questioning the identity of the dead body that it was that of Jayakumar, the learned Counsel would submit that the dead body was recovered after seven months from the silent valley; that the prosecution made its attempt to establish the identity through P.Ws.1 to 4 who are the relatives of the deceased; that according to P.Ws.1 to 3, those M.Os.1 to 3 actually belonged to the deceased and were worn by him; that it is pertinent to point out that those material objects were commonly used articles; that there is no specific mark or identity to identify the same; that as far as M.O.7, gold ring, was concerned, it was not recovered from the dead body; that even the recovery that was made from A-4 on the confession of A-7 cannot be believed for the simple reason that P.W.3 has deposed that he has sold all the jewels which were belonging to him, and under the circumstances, M.O.7, gold ring, was one actually introduced to connect the accused; that the dead body was subjected to postmortem by P.W.40, the Doctor, who has categorically deposed that the dead body was highly in a decomposed stage, and hence it would be quite clear that after a period of seven months, only the skeletonized body was available with which it cannot be stated that the same was that of the deceased Jayakumar; that the height of the partly saponified and partly skeletonized body was only 5′ 6″, according to the inquest report, Ex.P7; that according to P.W.1 and Ex.P1, it was 5′ 11″; that under the circumstances, it cannot be easily decided that the skeletonized body recovered from the depth of 3600 feet after seven months was that of the deceased Jayakumar; that the DNA report could not be relied upon because once the skull was subjected to the test of superimposition, the skull cannot be used for DNA test by two forensic authors; that the Investigating Officer, P.W.49, has not obtained the cause of death before filing the charge sheet before the committal Court, and thus the cause of death remained unknown till the charge sheet was laid.
6.Added further the learned Counsel that from the evidence of P.W.1, it could be seen that the deceased was leading a very miserable life; that he has borrowed lakhs of rupees from the third parties; that he could not make the payment also; that M.O.4 is the diary admittedly written by Jayakumar which would clearly speak about the miserable life and distressed situation in which he was; that under the circumstances, there was all possibility for himself committing suicide; that in the instant case, the prosecution relied on the identification proceedings as one of the circumstances; that the identification parade was conducted belatedly; that while all the accused persons are in judicial custody and they were also taken to the Court frequently and also the witnesses would state that they have already seen the photographs, the identification parade should not be given any evidentiary value; that in fact the evidence of the postmortem Doctor P.W.40 has supported the case of the defence; that as far as the judicial confession alleged to have been given by A-11 was concerned, it was a retracted confession; that he did not implicate A-2 with respect to all the overt acts; that it could be well stated that the confession by A-11 cannot be said to be a confession at all since he has not implicated himself; but, it was an incriminating one as far as the other accused are concerned; that so long it was exculpatory, it cannot be considered to be a confession given by that accused; that the ingredients of abduction were not proved by any evidence by the prosecution; that under the circumstances the prosecution has not proved its case, and hence the appellant/A-2 is entitled for acquittal.
7.Advancing arguments on behalf of the appellant/A-3 in C.A.No.759/2004, the learned Counsel Mr.R.Sankarasubbu would submit that the prosecution has miserably failed to prove its case either by direct or by circumstantial evidence; that according to the prosecution, on 23.3.2002, A-1 was arrested by the CB CID in Crime No.986 of 2001 under Sections 364, 365, 302 and 201 of IPC, and A-1 gave a confessional statement narrating the story; that the Investigating Officer instead of collecting independent evidence, simply forged the circumstances fit in with the confessional statement; that all the circumstances were invented by the prosecution; that no one circumstance was proved; that the name of A-3 was not found in the first complaint dated 14.10.2001 and also in the second complaint dated 6.2.2002 by P.W.1, the brother of the deceased Jayakumar; that the case was originally registered for man missing; that further, none of the witnesses namely P.W.1 the brother, P.W.2 the mother, and P.W.3 the wife, and P.W.4 the co-brother of the deceased, implicated A-3; that P.W.12 Mohan Babbu who accompanied the deceased also did not utter any word against A-3; that further A-3 was entitled for acquittal as similarly placed accused were acquitted on the same evidence if the Court ignored the extra judicial confession, Ex.P96, given by A-11 to the XIV MM, on 26.11.2002 and 27.11.2002; and that the said confession by the co-accused was not admissible in evidence against the co-accused.
8.The learned Counsel would further submit that above all, the confession itself is vitiated in law as P.W.44 failed to put relevant questions to show that the confession was voluntary as ruled by the Supreme Court in 1995 SCC (Crl) 323 (SIVAPPA V. STATE OF KARNATAKA). Further relying upon the decision of the Supreme Court in Sarwar Singh’s case (1957 MWN (Crl) 40), the learned Counsel would submit that it is vitiated since the time for refraction namely 24 hours was not given; that Sec.164(2) Cr.P.C. was violated; that the memorandum under Sec.164(2) Cr.P.C. was not written in the handwriting of P.W.44; that his satisfaction to the effect that the confession was true and voluntary was not reflected in Ex.P96; that apart from that, A-11’s confession suffers from legal infirmity as ruled by the Supreme Court in Chandran’s case (2003 SCC (Crl) 527); and that under the circumstances, the judicial confession given by A-11 has got to be ignored as not admissible.
9.Added further the learned Counsel that the next circumstance which was relied upon by the prosecution was the identification of A-3 by P.Ws.16 and 31 during the identification parade; that the same was vitiated in law due to the inherent unfair procedure adopted by P.W.35 i.e., 1 : 10 ratio should have been followed; that no separate parade for each accused was done; that above all, all the photographs appeared in the newspapers, and hence the test identification parade was vitiated in law; and that if the identification parade could not be taken as a piece of evidence, the evidence of the witnesses before the Court during the trial was vitiated in law as ruled by the Supreme Court in Vijayan’s case (1999 SCC (Crl) 378).
10.The learned Counsel would further add that the evidence of P.W.5 that A-3 pointed out the silent valley where the dead body was thrown cannot be relied; that before P.W.5, it was known to P.W.48 that A-1 already informed that the body was thrown into the silent valley, and hence there was no discovery of any new fact; that under the circumstances, the evidence of P.W.5 was of no assistance to the prosecution; that the evidence through P.Ws.14 and 15 and Ex.P14 were all created to suit the prosecution case; that there were lot discrepancies in Ex.P14 as to the departure date which was altered from 14.9.2001 to 15.9.2001; that if the original date 14.9.2001 was taken as true, then Ex.P14 had no evidentiary value; that the signature of Sami in Ex.P14 was not submitted to expert’s opinion; but, the trial Court opined like handwriting expert and held that the signature in Ex.P14 “P.Samy” was that of Swamikannu as found in Sec.313 statement; that the said procedure is bad in law; that the driver, P.W.16, has categorically admitted that the photos were shown to him before the identification parade by P.W.35; that above all, in the evidence of P.Ws.15, 16 and 17 there were material discrepancies, and the same could not be attached with any evidentiary value; that there is no evidence for conspiracy; that no inference could be drawn that there existed any conspiracy; that if Ex.P96, the judicial confession of A-11 is rejected, then A-3 stood on the same footing of the acquitted accused, and hence he has got to be acquitted.
11.Advancing the arguments on behalf of the other appellants/A-4 to A-7 and A-14, the learned Counsel Mr.T.K.Sampath would submit that the prosecution proceeded on the footing that there was a conspiracy hatched up between A-1, A-2 and A-3 pursuant to which they have abducted the deceased Jayakumar and kept him under illegal custody at different places and caused his death; that the prosecution has miserably failed to prove the conspiracy theory either by direct evidence or by circumstantial evidence; that according to the prosecution, on the misrepresentations made by A-1 that he was a close relative of the Ex-Mayor, the deceased believed that he would redeem the mortgage of his residential house and also paid Rs.2 lakhs to A-1, and since neither the house was redeemed nor the amount was returned, Jayakumar got angry, and hence A-1 was compelled to conspire with the other accused; that the prosecution has not produced any evidence either for the misrepresentation or for the payment of Rs.2 lakhs; that it is true that even from the evidence of the witnesses relied on by the prosecution, the association of P.W.12, the deceased and A-1 was shown; but, the same cannot always be sufficient to lead to an inference of conspiracy; that the prosecution must produce acceptable evidence to infer the premeditation or prearranged plan by the assailants to do the crime; that in the instant case, the prosecution has failed to place the circumstances which could facilitate the Court to draw an inference that they are incapable of any other reasonable interpretation, and thus the prosecution has not proved the conspiracy theory; and that in the absence of any circumstances wherefrom the conspiracy could be inferred, the trial Court has taken an erroneous view that the conspiracy could be inferred from the acts of the accused from 23.8.2001 to 14.9.2001.
12.Added further the learned Counsel that as far as the evidence adduced by the prosecution in respect of the abduction was concerned, P.W.12 has candidly admitted that they went to a house at Virugambakkam of their accord which would clearly indicate that they were not abducted; that apart from that, it was the evidence of P.W.12 that from the house at Virugambakkam they were taken to different places in Madras in two ambassador cars; that even at that time it did not pass in the mind of P.W.12 that they were abducted; that when they were taken from Virugambakkam to Vandavasi by cars either P.W.12 or Jayakumar had travelled along with others, and they did not make any attempt to escape or try to inform the same to any one relative though Jayakumar had a cell phone in hand; that P.W.12 has candidly admitted that they travelled with them without any cruel treatment, and hence it cannot be stated that there was any abduction.
13.It is further contended by the learned Counsel that P.W.12 has deposed that during the stay at Kodaikanal, they were going about for shopping; that if it was true, there was all possibility of escaping or at least to give information to the relatives at Madras; but, P.W.12 has not chosen to do so, since he was also staying with all comfortably, and thus, it cannot be stated as a detention or confinement; that the prosecution could not prove that the body that was recovered from the silent valley was that of Jayakumar; that it is true that the prosecution made its attempt to prove; but, neither by direct evidence nor by expert’s evidence it could prove conclusively; that P.W.3 the wife of the deceased, has categorically stated that he has sold all the jewels worn by him, and hence the case of the prosecution that A-4 and A-5 stole the gold ring of Jayakumar when he was at Vandavasi was an invention and introduction in order to rope in those accused and also to strengthen the case by introducing it as a circumstance.
14.Added further the learned Counsel that even it is admitted by P.W.12 that he was taken from Kodaikanal to Madras, and he was left with P.W.7 Joseph to whom he had shown the injuries caused by the accused; but, he has not whispered anything till 23.3.2002; and that it is pertinent to point out that though P.W.1 gave the first complaint for man missing and the second complaint for the abduction of his brother, the conduct of P.W.12 in not revealing anyone of the happenings for number of months would cast a doubt on his testimony.
15.Added further the learned Counsel that the evidence of P.W.12 was thoroughly unreliable since there was discrepancy on material particulars from the statement given by him to the Inspector of Police, K4 Anna Nagar Police Station, the statement recorded by the Magistrate under Sec.164 of Cr.P.C. and also the evidence adduced before the trial Court; that he has also deposed that CB CID Police did not interrogate him in the instant case; but, he was examined only in M.K.Balan’s case; that as far as the statement given by P.W.12 to the Inspector of Police, K4 Anna Nagar Police Station, was concerned, it could be seen that one Dhanasekar was on inimical terms with Jayakumar, and he was responsible for the death of Jayakumar; that the said Dhanasekar was originally added as an accused in the case; but, he was subsequently dropped by the CB CID for the reasons best known to the department, and hence it would be quite clear that the statement of P.W.12 to the Inspector of Police, K4 Anna Nagar Police Station, would clearly indicate that neither A-1 nor the other accused was responsible for the death of Jayakumar.
16.Added further the learned Counsel that the entire case rested upon the circumstantial evidence; that the prosecution must prove the chain without a snap and the circumstances must be in such a nature clinchingly show that the accused were guilty of the offence; that in the instant case, there are number of snaps; that the prosecution was unable to connect the circumstances by proper links, and thus so many links were missing; that as far as the evidence of P.W.16 was concerned, he was examined as the person who drove the TATA Sumo from Vandavasi to Kodaikanal along with the deceased Jayakumar, P.W.12 and the other accused and also brought them back to Madras excepting the deceased Jayakumar; that his evidence has got to be rejected for many reasons; that there was no evidence to show that he was a driver at all who knew driving; that admittedly, he had no licence at all; that there was no explanation why his licence was not obtained and produced before the Court; that even after the cross examination that he did not know driving, the prosecution did not come forward to produce his licence; that as far as the ambassador car was concerned, the driver who drove the car was not examined; that on the contrary, the owner of the car was examined; that it was specifically denied by the defence that the TATA Sumo was neither used by the accused during the relevant days nor driven by P.W.16, and acceptable evidence was not put forth by the prosecution; that there was no explanation for non-examination of the driver of the ambassador car; that the trip sheets Exs.P14 and P15 for TATA Sumo and ambassador cars respectively were produced, but number of manipulations were found; that those documents cannot be accepted in evidence; and that apart from that, it would also tell that the prosecution came with the false story that these cars were actually utilised for the commission of the offence.
17.The learned Counsel would further submit that the prosecution had rested its case on the evidence of P.Ws.12 and 16; that the evidence of both the witnesses was thoroughly unbelievable since they have given different types of statements at different points of time; and that as far as the identification parade was concerned, there was undue delay in the conduct of the identification parade. Relying on the decision of the Apex Court and of this Court, the learned Counsel would submit that the identification parade should have been conducted within 15 days or at the best, within next 15 days; that in the instant case, the identification parade was conducted in respect of each of the accused after a period of 2 or 3 months; that the witnesses have candidly admitted that the photos of the accused also appeared in newspaper; that there was all possibility of the witnesses to identify the accused duly after seeing the photos; and that the prosecution had no explanation to offer in respect of the undue delay. In support of this contention, the learned Counsel relied on a decision of the Apex Court reported in 1999 SCC (CRL.) 384 (VIJAYAN V. STATE OF KERALA).
18.The learned Counsel would further submit that as far as the confessional statement of A-11 recorded by the Metropolitan Magistrate P.W.44, marked as Ex.P96, was concerned, it cannot be given any evidentiary value since the Magistrate has not followed the mandates stipulated under Sec.164 of Cr.P.C.; and that he has neither given warning on the first day of production of A-11, nor has he appended any certificate in writing as required under Sec.164 of Cr.P.C. at the end of the confession recorded or he has written in his own hand. In support of his contention, the learned Counsel relied on a decision reported in 2001-2 LW (Crl.) 744 (RAMADOSS AND OTHERS V. STATE). Relying on a decision reported in 2000 SAR (CRL.) 649 the learned Counsel would further add that the said statement recorded by the Magistrate from A-11 cannot be said to be a confessional statement at all, because it was exculpatory in nature.
19.Added further the learned Counsel that the prosecution based its case only on the circumstantial evidence; that there were many many links, and the case apparently casts doubt with reference to the commission of the offence by these appellants; that as far as the appellants were concerned, they had no relationship, contact or friendship either with A-1 or with the deceased; that there was no enmity or motive for these accused to commit the offence; that it is not the case of the prosecution that these accused persons were hired by anybody for monetary gain; that as far as these accused were concerned for the third charge for offence under Sec.364 IPC, they stood on the same footing as that of A-8, A-9, A-10, A-12 and A-13 who were all acquitted for the similar charge; that even according to the prosecution, these accused persons were not connected for the abetment and kidnapping of the deceased and P.W.12; that with reference to the fourth charge that these accused caused the death of the deceased Jayakumar, there was no direct evidence except the statement of A-11 said to have been given before the P.W.44 under Sec.164 of Cr.P.C.; that as far as the fifth charge as against A-4 and A-5 was concerned, there was no evidence that at the time when he left the house, the deceased was wearing a ring and was carrying a mobile phone; that the theft of these articles were said to have been committed between 23.8.2001 and 4.9.2001 at Chennai and Virugambakkam; that further, there was no whisper in this regard either by the brother, father, mother or by his wife in any of the statements made by them before the police; that A-4 and A-5 did not give any confessional statement regarding the theft of the above said articles; that the recovery was based on the confession of A-7, and it was also with full of contradictions and infirmities; that as regards the involvement of these accused, the available evidence was that of P.Ws.12 and 16; that the evidence of P.Ws.12 and 16 was of no help to the prosecution; that the identity of the body was disputed by the evidence of P.W.41 Dr.Jayaprakash, P.W.43 Smt.Vanaja and P.Ws.1 to 4; that M.Os.53 and 54 would go to show that no one has identified the body; that the evidence of P.W.5 Joseph, who took the body from the silent valley, also did not help the prosecution; that M.Os.1 to 3 are commonly used articles; that M.O.7 gold ring, was also not recovered from the dead body; that the cause of death was not made known in the charge sheet when it was filed before the Committal Court, and under the circumstances, these appellants are entitled for acquittal in the hands of this Court.
20.In support of the above contentions, the learned Counsel relied on the following decisions:
(1)AIR 1970 SC 1321 (BUDHSEN AND ANOTHER V. STATE OF U.P.)
(2)1976 SCC (CRL.) 72 (MAHMOOD V. STATE OF U.P.)
(3)1989 SCC (CRL.) 621 SHIBAJI DAYANU PATIL V. STATE OF MAHARASHTRA)
(4)MADRAS LAW JOURNAL REPORTS (CRL) 1991 (DILAVAR HUSSAIN AND OTHERS V. STATE OF GUJARAT AND ANOTHER)
(5)1992 (3) CRIMES (SHANMUGAIYYA & OTHERS V. STATE)
(6)1993 (1) CRIMES (STATE OF M.P. V. TIKHIYA)
(7)1993 LAW WEEKLY (CRIMINAL) 502 (RAJENDRAN V. STATE)
(8)1994 SCC (CRL) 1424 (DATRUGHANA AND OTHERS V. STATE OF ORISSA)
(9)1995 SCC (CRL) 149 (RAMESH MARUTHI PATIL V. STATE OF MAHARASHTRA)
(10)1997 (7) SUPREME 602 (SHABAD PULLA REDDY AND OTHERS V. STATE OF ANDHRA PRADESH)
(11)1998 MLJ (CRL) 597 (PANDI AND OTHERS V. STATE)
(12)1999 SCC (CRL) 378 (VIJAYAN V. STATE OF KERALA)
(13)2000 CRIMINAL LAW JOURNAL 380 (RAJESH GOVIND JAGESHA V. STATE OF MAHARASHTRA)
(14)2001-2-L.W. (CRL.) 735 (ARUMUGAM V. STATE)
(15)2002 SUPREME COURT CASES (CRL.) 1718 (ASHISH BATHAM V. STATE OF M.P.)
(16)1990 (3) CRIMES 184 (HAJI MOHD. IQBAL AHAMED V. STATE OF KARNATAKA)
(17)1991 SUPREME COURT CASES (CRL.) 527 (JAHARLAL DAS V. STATE OF ORISSA)
(18)1992 (3) CRIMES 492 (PITCHAIAH V. STATE OF TAMIL NADU)
(19)2004 (4) CRIMES 40 (SC) (STATE OF RAJASTHAN V. KHUMA)
(20)(1996) 6 SCC 63 (TULSI SINGH V. STATE OF PUNJAB)
(21)2001-2-L.W. (CRL.) 744 (RAMADOSS AND OTHERS V. STATE).
21.Advancing arguments on behalf of the appellant/A-11, the learned Counsel Mr.S.Manohar would submit that he was innocent of the charges; that the same have been foisted upon him; that he was also arrested on 16.11.2002; that the test identification parade was conducted only on 8.4.2003 in which P.W.15 Raja, P.W.16 Krishnasagar, P.W.18 Selvam and P.W.12 Mohan Babu identified him; that according to the prosecution, the commencement of the occurrence was on 23.8.2001 which culminated with the alleged death of the deceased on 14.9.2001; that K4 Anna Nagar Police Station was investigating the matter till May 2002; that the further investigation was transferred to CB CID during the month of May 2002; that the trial Court has placed much reliance on the confession made by this appellant on 27.11.2002 marked as Ex.P96 for convicting him for the offence under Sec.364 IPC as well as under Sec.302 IPC; that the trial Judge has omitted to consider the earlier part of the confession wherein he has categorically admitted that he has accompanied A-3 on being called for by him to join him; that further when he tried to go to his home, he was threatened by A-3 to be with him; that after the deceased was taken to Vandavasi along with the other accused, this appellant has categorically enquired A-3 where they were going from Vandavasi for which A-3 replied that they were all going home; that however the vehicle was driven to Kodaikanal; that on reaching Kodaikanal, A-1 and A-2 wanted for a site seeing, and hence the deceased along with A-1 and A-7 went in the TATA Sumo car and stopped near silent valley; that at that time, A-3 asked A-7 to cover the eyes and mouth of the deceased; that A-3, A-4 and A-6 attacked the deceased with patta kathi by slashing the right side of the neck and then rolled the body into the silent valley; that the trial Judge has taken this part of the confession alone for convicting him for the alleged offence under Sections 302 and 364 of IPC; but, the lower Court has failed to note that the said alleged confession has been retracted by the appellant/A-11 when he was questioned under Sec.313 of Cr.P.C.; that the alleged recovery of M.O.50, knife, from the appellant on the basis of the confession before P.W.49 on 16.11.2002 was not at all connected with the alleged murder caused by the other accused in view of the fact that there was no bloodstain in the said material object to sustain the plea of the prosecution that the same was used in the above said alleged murder; and that moreover, P.W.5 who has recovered the body from the silent valley, has also recovered three patta knives which were said to have been used by the accused.
22.Relying on a decision reported in 1952 SCR 1091, the learned Counsel would submit that the Apex Court has held thus: “It is settled law that an admission made by a person whether amounting to a confession or not, cannot be split up and part of it used against him. An admission must be used either as a whole or not at all. If the statement of the accused is used as whole, it completely demolishes the prosecution case and if it is not used at all, then there remains no material on record from which any inference could be drawn that the letter was not written on the date it bears.” The learned Counsel would further submit that much prejudice has been caused to him in view of the fact that the charge for the higher offence was not made known to him while he was being tried for the lesser offence, and the ingredients of the higher offence were not at all brought to his knowledge when the case was being tried before the trial Court, and hence he is entitled for acquittal. The learned Counsel relied on a decision reported in JT 2006 (10) SC 586 for the proposition that a conviction for the lesser offence is permissible provided he has been charged with larger offence.
23.The Court heard the learned Additional Public Prosecutor on all the above contentions, paid its anxious consideration on the elaborate submissions put forth by either side for number of days, looked into the materials available and made a scrutiny of the judgment under challenge.
24.The case of the prosecution as could be seen from the charges levelled against the accused/appellants and other accused who were ordered to be acquitted, was that pursuant to the conspiracy entered into among A-1, A-2 and A-3, the deceased Jayakumar was abducted along with P.W.12 Mohan Babu and illegally detained in a house at Virugambakkam from 23.8.2001 to 4.9.2001 and at Athipakkam (Vandavasi) from 4.9.2001 to 12.9.2001; that he was kept in illegal custody on 13.9.2001 and 14.9.2001 at Kodaikanal; and that on 14.9.2001, he was murdered and his body was thrown into the silent valley. It has to be pointed out that the prosecution in order to prove the conspiracy, placed reliance on the circumstances from which the conspiracy can be inferred since it had no direct evidence to offer in that regard. In order to prove the offence of abduction and wrongful confinement, the prosecution had direct evidence to offer while as regards the crime of murder, the prosecution rested its case on the circumstantial evidence.
25.Admittedly, P.W.1 is the brohter. P.W.2 is the mother, and P.W.3 is the wife of the deceased Jayakumar. A-1 a native of Mayiladuthurai and a graduate in Business Administration, was also facing a case in C.C.No.1798 of 2000 on the file of the Judicial Magistrate No.I, Mayiladuthurai, on the specific charge that he abducted a person for ransom. Pending that proceedings, A-1 came to Madras during 2000 and was staying in Golden Cafe Lodge. P.W.12 developed contact with A-1, and by activities A-1 was adumbrating that he was going to marry the daughter of the former Mayor of Madras. Making the said fraudulent misrepresentations, A-1 cheated P.W.6 and got Rs.10000/- assuring him to get an employment for him. P.W.7, a grocery shop owner, who was desired to get a transfer for his wife working as a teacher at his native place to Madras, paid to A-1 moneys on different occasions. Equally, P.W.22 was cheated by A-1 assuring him of getting an employment. P.W.22 has categorically deposed that an amount of Rs.1 lakh was paid by way of two demand drafts in the name of A-2 each for Rs.45000/- and the remainder by cash. This would speak of the close association of A-1 and A-2. P.W.24 has deposed that though A-1 asked him to pay Rs.20000/- to get back the stolen jewels of his wife, he refused. But, from the evidence, it would be quite clear that on his request, P.W.24 used to talk in cell phone like Udayanithi, the son of the former Mayor of Madras Corporation, in order to make others believe that A-1 was very close to Udayanithi. It was under those circumstances, the deceased Jayakumar believed the misrepresentations of A-1 and has parted with the sum.
26.P.Ws.1 to 3 have deposed that originally the house owned by their family in Door No.223, ‘N’ Block, Anna Nagar, was mortgaged to South East Benefit Fund, Mandaivali, for Rs.10 lakhs, and the said amount was taken by P.W.1 and Jayakumar each Rs.5 lakhs. It was agreed by them that Jayakumar was to be in possession of the property, and he should redeem the mortgage; but, he could not do so. In the meanwhile, he developed acquaintance with A-1 who was adumbrating that he was about to marry the daughter of former Mayor of Madras and was having close association with the son of the former Mayor, and hence he could see the entire interest wiped off. From the evidence of P.W.12, it could be seen that Jayakumar was closely moving with both A-1 and P.W.12 and on the instructions of A-1, he received Rs.80,000/- from Jayakumar and handed over the same to A-1 at Perambur Railway Station. The said fact spoken to by P.W.12 as to the receipt of money from the deceased Jayakumar and the handing over of the same to A-1 was corroborated by P.W.7 Christopher. P.W.3 Hemalatha, the wife of the deceased, has given evidence to the effect that she used to enquire about A-1 to her husband, and her husband informed her that A-1 was going to marry the daughter of the former Mayor. According to P.W.2, the mother of the deceased, whenever she enquired about the redemption of the mortgage to her son Jayakumar, he replied that she need not worry about it since A-1 would redeem the mortgage so easily. It is pertinent to point out that A-1 was staying in the house of the deceased from 9.4.2001 till the month of July. This part of the evidence would clearly indicate that the deceased Jayakumar was closely moving with A-1 and fell prey to his false misrepresentation, and he was also hoping that A-1 would help him in redeeming the mortgage. On the contrary, he was served with the public auction sale notice by the said Benefit Fund. Vexed over the situation, he made enquiry to the P.A. to the former Mayor and came to know that A-1 had no connection with the former Mayor. Got annoyed, Jayakumar informed to P.W.12 about the same.
27.P.W.32 has deposed that his friend deceased Jayakumar came to his house, informed him about the circumstances and also prepared a written complaint, Ex.P49, against A-1 addressed to the Commissioner of Police, Chennai, and the same was kept by Jayakumar. P.W.12 has categorically deposed that the deceased along with the witness went to A-2’s house, met A-1 and quarreled with him. From the evidence of P.W.12, it would be quite clear that when Jayakumar along with the witness demanded A-1 for redemption of mortgage either, or return of money or if not, it would be brought to the notice of the Commissioner of Police by way of complaint, being provoked by the behaviour of the deceased, A-1 decided to eliminate him which led to the hatching up of the conspiracy with A-2 and A-3 to eliminate the deceased. This part of the evidence adduced by the prosecution through P.Ws.1, 2, 3, 6, 7, 12, 22 and 24 would clearly indicate that A-1 was indulging in criminal activities by cheating number of persons including the deceased Jayakumar.
28.On 23.8.2001, the deceased Jayakumar was informed by A-1 to come and collect the money at Tiruvanmiyur. Accordingly, the deceased who was staying in P.W.12’s house, proceeded to Tiruvanmiyur along with P.W.12, and they were waiting from 4.00 P.M. to 8.00 P.M. When Jayakumar contacted A-1 by phone at 8.00 P.M., A-1 asked him to go to Aavichi School at Vadapalani. Accordingly, the deceased Jayakumar and P.W.12 reached Aavichi School at Vadapalani, but A-1 was not found there. On the contrary, both were taken to a house at Virugambakkam. On the request of A-3, P.W.21 let out his house for 10 days to A-3 and handed over the key to A-3. P.W.12 and the deceased Jayakumar were detained in the house at Virugambakkam from 23.8.2001. Pending the investigation, the Investigator has made an inspection of the said house situated in Door No.19/233, Natesan Nagar, III Main Road, Virugambakkam, and prepared the observation mahazar, Ex.P29. P.W.21 was examined as a witness to the above facts. P.W.12 has categorically spoken to the fact that he and the deceased Jayakumar were detained there, and they were tortured and beaten by A-3, A-4, A-5, A-6, A-7, A-9, A-10, A-11, A-12 and A-13. While they were so detained, A-3 had seized the complaint written by the deceased addressed to the Commissioner of Police, Madras. The same was handed over to A-1. Both Jayakumar and P.W.12 were compelled to write letters, and the same were sent to their houses respectively during the relevant period. The receipt of those letters and the handwriting of both the deceased and P.W.12 were corroborated by P.Ws.2, 3, 4, 12 and 22. On 12.9.2001, the accused forced Jayakumar to write a letter and the same was also recorded in the tape recorder. P.W.12 was also directed to write Ex.P13 letter, and the same was also recorded. The writing of those letters would clearly indicate as if both the deceased Jayakumar and P.W.12 Mohan Babu threatened A-1 for money and also the names of Udayanithi, Parithi Ilamvazhudhi and M.K.Balan were also referred therein. All the facts were clearly proved by the prosecution through the evidence of P.W.12. Apart from that, all those incriminating evidence were discovered and recovered by P.W.48 when he was investigating M.K.Balan’s murder case and produced pending the trial.
29.It cannot be disputed that the prosecution had no direct evidence to offer to substantiate the conspiracy which was hatched up among A-1, A-2 and A-3. Needless to say that the conspirators would hatch up the conspiracy in secrecy leaving no proof, and hence in most of the cases it would be highly impossible to adduce direct evidence to prove the conspiracy. The Apex Court and the High Courts following the Apex Court, have rendered catena of decisions that the conspiracy could be proved by process of inference from the proved facts and circumstances. In a case reported in 1999 (3) SCC 609, the Apex Court has held that the conspiracy is a rim, which is bound by several spokes, and one spoke need not know what the other spokes does so long as the wheel rotates without any hindrance. Sec.10 of the Indian Evidence Act provides sufficient sanction to use the evidence of one conspirator as against another conspirator. In the instant case, the Court could easily infer the conspiracy hatched up among A-1, A-2, A-3 and A-6 from the facts and circumstances in respect of which sufficient proof was placed by the prosecution leaving no doubt in the mind of the Court. The prosecution placed sufficient proof as could be seen from the available materials that the deceased Jayakumar and P.W.12 had association with A-1, and the deceased has made payments to A-1 through P.W.12 namely Rs.80000/-, and A-1 gave assurance to redeem the property of the deceased which was mortgaged with the Benefit Fund. A-1 was staying in the house of the deceased for a few months. The deceased was making demand on A-1 for redemption of the mortgage or for the return of the money or he would give a police complaint, and accordingly, he has actually prepared a complaint for that purpose. When it came to the knowledge of A-1, he has done the act with A-2 and A-3, and A-6 actually joined with them. Accordingly, A-1 informed the deceased that he should come to Tiruvanmiyur to get back the money. Thereafter, he was asked to come to Aavichi School, Vadapalani wherefrom he was actually taken by the accused. Both the deceased and P.W.12 were kept in the house at Virugambakkam from 23.8.2001 to 4.9.2001 which was arranged by the accused and from there, they were abducted to the grandmother’s house of A-8 at Athipakkam near Vandavasi from 4.9.2001 to 12.9.2001, and there from they were taken in the two cars bearing one ambassador and the other TATA Sumo, and the deceased was kept along with P.W.12 at the Hotel Sangeeth at Kodaikanal, while A-1 and some of the accused were staying at Hotel Astoria. Thereafter, the deceased was taken and was murdered, and the dead body was thrown into the silent valley. Regarding all these factual positions, the prosecution was able to place cogent evidence to prove all the above circumstances from which it could easily be inferred that without a conspiracy between A-1, A-2 and A-3, these two persons could not have been abducted from Madras to various places, and at the end, Jayakumar was killed. 30.In the case on hand, though direct evidence regarding conspiracy is absent, all the proved facts and circumstances which were made available before the trial Court, would lead to the irresistible inference that A-1, A-2 and A-3 were the conspirators to such a conspiracy. Hence the comment made by the learned Counsel for the appellants that the prosecution had no direct evidence to offer and the circumstances placed would not suffice to accept the case of conspiracy has got to be rejected. Accordingly, it is rejected.
31.The contention raised by the learned Counsel for the appellants that the prosecution has not proved the identity of the dead body as that of Jayakumar, and Jayakumar was never murdered as put forth by the prosecution, but it was a case of commission of suicide cannot be countenanced for the following reasons and circumstances. The Investigator on a requisition to Court took A-3 to police custody and recorded his confessional statement on 7.4.2002. His confessional statement was recorded by the Inspector of Police, K4 Anna Nagar Police Station, who took him to Kodaikanal. It was A-3 who identified the places namely Hotel Sangeeth, where the deceased Jayakumar and P.W.12 were confined by them and the place where the deceased was taken and murdered by A-1 to A-3 and A-11 with deadly weapons. On 9.4.2002, M.Os.8 to 10 were seized by the Investigator in the presence of independent witnesses. On 11.4.2002, the body of the deceased was lifted from the silent valley and brought out by P.W.5 and others. The same was also identified by A-3. The admissible part of the confessional statement is marked as Ex.P4, and P.W.5 was cited as a witness to that fact. The observation mahazar in respect of the place of occurrence was marked as Ex.P5 and P.W.5 stood as a witness. It is pertinent to point out that M.Os.8 to 10, the weapons of crime, were actually taken from the silent valley and seized under Ex.P6 mahazar. The Investigator has prepared an inquest report which is marked as Ex.P7. On 13.4.2002, P.Ws.1, 3 and 4 and others have identified the dead body as that of the deceased Jayakumar. Apart from that, they have also identified M.Os.1 to 3, clothes, belonging to the deceased.
32.Pursuant to the requisition made by the Investigator, the postmortem on the body of the deceased was also conducted in the Government Hospital, Kodaikanal. The postmortem was actually conducted by P.W.40, the Medical Officer, attached to Rajaji Government Hospital, Madurai. He has issued the postmortem certificate, Ex.P59, and has given his final opinion Ex.P60 stating that the deceased would appear to have died of head injury 6 to 9 months prior to postmortem. According to the Doctor, three anti mortem injuries were noticed, and they were individually and cumulatively capable of causing death.
33.Pursuant to the request of P.W.47, the Investigator, the skull of the deceased was sent to the Anthropology Department, Forensic Sciences Laboratory, Chennai, for conducting superimposition test. P.W.41 compared the skull with the photographs and opined that the photograph of the deceased tallied with the skull sent by P.W.40.
34.Apart from all the above, the investigating agency had taken steps to conduct DNA profile test. The same was done by P.W.43 Smt.Vijaya, through whom Exs.P73 to P95 were marked. From her evidence, it could be seen that after taking blood samples of P.Ws.1 and 2 and Dhakshinamoorthy, the father of the deceased, DNA Profiles were developed, and the same tallied with the DNA profile of the bone morrow taken from the skull which was seized from the body recovered from the silent valley. P.W.43 was very categorical in her opinion that in her analysis, she has found the DNA profile tallying with each other.
35.The learned Counsel for the appellants much relied on Ex.P4 diary which is admittedly in the handwriting of the deceased. A reading of the same would clearly indicate the above sorrowful and helpless situation in which the deceased was put. But, nowhere he has spoken about any indication that he was to end himself. On the contrary, the postmortem Doctor has clearly opined that there were 3 anti mortem injuries, and they individually and cumulatively were capable of causing death. The superimposition test and also the DNA profile test would clearly indicate that the dead body was that of Jayakumar, and thus, the prosecution has clearly proved the fact that the dead body was that of Jayakumar, and it was a case of murder and not suicide as contended by the appellants’ side.
36.The evidence of P.W.12 that when he was illegally detained along with the deceased Jayakumar in the house at Virugambakkam, he was attacked with wooden logs and pattakathi, and simple injuries were caused stood fully corroborated by the evidence of P.W.7 Christopher. According to P.W.7, when P.W.12 was kept in his house on the instruction of A-1, A-2 and A-4, P.W.12 narrated that the said injuries were caused by the accused when he was detained at Virugambakkam, and also he noticed those injuries. When the deceased was detained in the house at Virugambakkam from 23.8.2001 to 4.9.2001, as stated above, M.O.7, gold ring, and M.O.20, cell phone, belonging to the deceased, were stolen by A-4 and A-5. Both the gold ring and cell phone were recovered pursuant to the confessional statement made by A-7. They were identified by A-7 and seized from the house of A-4. That apart, those gold ring and cell phone were identified by P.W.1 to 3 before the Court. P.W.3 also deposed to the fact. Through that, the prosecution was able to prove that A-4 and A-5 have committed the offence of theft.
37.The above part of the evidence would clearly indicate that pursuant to the conspiracy between A-1, A-2 and A-3, the deceased Jayakumar and P.W.12 were detained at Virugambakkam, and they caused simple injuries also. There arose a necessity to vacate the house at Virugambakkam. While the deceased and P.W.12 were detained so, P.W.21, the care taker, has asked his cousin A-6 to inform A-3 to vacate the house, and hence, the house was actually vacated on 4.9.2001.
38.According to the prosecution, the deceased Jayakumar and P.W.12 after vacating the house on 4.9.2001, they were taken to Athipakkam Village near Vandavasi and detained in the grandmother’s house of A-8 Gopi. According to the evidence of P.W.16, Krishna Sagar, he drove the TATA Sumo Car and on the request of the accused, he contacted P.W.17, Brammiah Naidu, the owner of Sairam Travels, Avadi, to send an ambassador car. These two vehicles were actually used for the purpose of abducting the deceased Jayakumar and P.W.12 and also the travel of the accused. The witness has further added that A-3 was waiting at Vandavasi for A-1 and others. Accordingly, A-1, A-2 and A-14 reached Vandavasi in the vehicle M.O.15, Ambassador Car, and A-5, A-8 and A-11 also reached in the TATA Sumo, M.O.13, driven by P.W.16, and as soon as they reached, A-3 took them to one Chakravarthy Lodge along with A-8 and booked two rooms in the said lodge. According to P.W.23, the Night Watchman and in-charge during the night hours of the said lodge, he has made entry in the register, Ex.P33, and entered the address of A-8 and obtained his signature. Pending investigation, the Investigator, P.W.49, has seized the register, Ex.P33, under Ex.P34, mahazar. From the said document, it could be seen that two rooms were allotted for A-1, A-2 and A-14, and thus, this would be pointing to the fact that these three accused were staying at Chakravarthy Lodge at Vandavasi, which was booked by A-8 at the instance of A-3 on 12.9.2001.
39.P.W.16 would also further add that in the TATA Sumo driven by him, A-3, A-5, A-8 and A-11 travelled and reached Athipakkam Village where the deceased Jayakumar and P.W.12 were detained under the custody of the above mentioned accused and also A-4, A-6 and A-7. P.W.31 has categorically deposed that he helped those accused and others for purchasing food items and liquor till they were seen off. Thus, this part of the evidence would clearly indicate that A-1, A-2 and A-14 were staying at the Chakravarthy Lodge and all other accused took the custody of the deceased Jayakumar and P.W.12 who were illegally detained in the house of the grandmother of A-8 during the relevant point of time. According to the plan, A-1, A-2 and A-14 vacated the rooms at Chakravarthy Lodge on 12.9.2001 at about 6.00 P.M. and left for Kodaikanal in the Ambassador Car while the deceased and P.W.12 were taken by A-3, A-4, A-5, A-6, A-7, A-8 and A-11 in the TATA Sumo Car driven by P.W.16. P.W.16 who drove the TATA Sumo Car, has categorically given evidence that on 13.9.2001 at about 8.30 A.M., he reached Kodaikanal; and that A-1, A-2, A-8 and A-14 stayed in Astoria Hotel. For both the rooms which were booked at Hotel Astoria, the necessary entries were made in the Guest Registration Card, Ex.P10, as “C.Senthilkumar, No.44, Thulasingam Street, Pudupet, Madras”, and the registration number of the white Ambassador Car TN20 A 3447 was also entered by the Receptionist, P.W.8, Gurusamy. The hotel receipt was marked as Ex.P11. These two documents would clearly indicate that on 13.9.2001, A-1 has stayed along with his associates at Hotel Astoria and the Ambassador Car TN20 A 3447 was also taken by him and parked in the hotel. These two documents were seized by the Investigating Officer under mahazar Ex.P12. At the time of the trial, they were marked through P.Ws.8 and 9. The signature and the handwriting of A-1 which were found in Exs.P11 and P12 were subjected to comparison by P.W.42, the expert, who has given his categorical opinion that the signature and handwriting of A-1 found in Exs.P11 and P12 tallied at the time of comparison. According to P.W.14, the Receptionist, at the Hotel Astoria, Kodaikanal, A-3 and A-6 booked three rooms in the name of Samy as “P.Samy, No.2 NSC Bose Road, Sowcarpet, Chennai 79”. The signature of Sami in the said Register is marked as Ex.P14, through P.W.14, the Receptionist.
40.Now, At this juncture, it is pertinent to point out that the contention of the appellants’ side that there is no evidence to indicate that the Ambassador Car bearing Registration No.TN20 A 3447 was taken by them, and the prosecution has not placed any evidence, and trip sheets which were seized and placed were manipulated, and the examination of P.W.17, the owner of the said Ambassador Car, would not in any way help the prosecution has got to be rejected in view of the entry made by P.W.8 the Receptionist, in Ex.P11 as to the white Ambassador Car TN20 A 3447.
41.The learned Counsel for the appellants made a comment that the name of Samikannu was not Samy, and he was also not residing in the address entered in that Register, and hence the Investigating Officer should have verified whether such a person was living in the address given therein. This contention has got to be rejected for more reasons than one. P.W.14 working as a Receptionist in Hotel Sangeeth at Kodaikanal has clearly deposed to the fact that on 13.9.2001 at 0800 hours, the accused persons came in a TATA Sumo and also in a white Ambassador Car, and it was A-3 and A-8 who booked three rooms. P.W.14 has clearly identified that it was A-3 who signed the Register. Added further the witness that A-3 made an enquiry about a better hotel for the stay of the persons, who travelled in the white Ambassador Car and it was P.W.14 who informed him that they could stay in Hotel Astoria. Apart from that, the prosecution had the benefit of the evidence of P.W.15 who was working as a Room Boy in Hotel Sangeeth. He has categorically stated that A-3 and A-6 booked three rooms. Through P.W.14, it was proved that those rooms in which A-3 and others were staying were vacated on 15.9.2001 at 0840 hours. All the above would clearly indicate that A-1, A-2 and A-14 stayed at Hotel Astoria while all other accused along with the deceased and P.W.12 were staying at Hotel Sangeeth from 13.9.2001 to 14.9.2001. Thus, by the above narrated evidence, the prosecution beyond reasonable doubt has clearly proved that the deceased Jayakumar and P.W.12 were abducted from Aavichi School at Vadapalani, and then detained in a house at Virugambakkam between 23.8.2001 to 4.9.2001, and they were taken from Virugambakkam to Athipakkam Village near Vandavasi and kept in the house of A-8’s grandmother till 12.9.2001 on which date they have taken the deceased and P.W.12 to Kodaikanal, and they have detained P.W.12 and the deceased at Hotel Sangeeth. As stated above, as far as the above factual position was concerned, the prosecution had, in the considered opinion of the Court, direct evidence which is cogent, believable and trustworthy.
42.As far as the last part of the case of the prosecution as to the murder of the deceased Jayakumar, though not the prosecution had direct evidence to offer, it has placed and proved the necessary circumstances pointing to the guilt of the accused. The prosecution had placed sufficient evidence to indicate that the deceased Jayakumar was last found in the custody of the accused. According to P.W.16, while A-3, A-4, A-5, A-6, A-7, A-11 along with the deceased and P.W.12 were staying in Hotel Sangeeth in three rooms, he was also staying with them, and on that evening A-3 took the key of the TATA Sumo and left the hotel along with A-1, A-2 and A-14 and they came back, and on the next day that was on 14.9.2001 at about 5.00 P.M., A-3 took the keys of the TATA Sumo Car and A-3 accompanied by A-1, A-2, A-4, A-5, A-6, A-7 and A-11 took Jayakumar. At that time, A-1 instructed A-8 and A-14 to take care of P.W.12 and P.W.16 also. All these accused who left with the deceased Jayakumar from the room, alone returned, but Jayakumar was not found. P.W.16 has further added that on 15.9.2001, A-3 instructed him to get ready to leave for Chennai from Kodaikanal at about 9.00 A.M. The witness also noticed A-3 to A-8 and A-11 boarding the TATA Sumo vehicle, but neither P.W.12 nor Jayakumar. Immediately, P.W.16 enquired A-3, and A-3 in turn informed that they are coming in the other vehicle. P.W.16 noticed that in the Ambassador Car P.W.12 was sitting along with A-1, A-2 and A-14. Again P.W.16 enquired about the deceased Jayakumar, and A-3 replied that Jayakumar was left in the factory of A-2’s relative at Kodaikanal. P.W.16 did not see Jayakumar thereafter. According to P.W.12, when be boarded the Ambassador Car, he enquired about Jayakumar with A-1; but, A-1 replied that Jayakumar was sent to Chennai after meeting his uncle. On the same day at about 9.00 P.M., A-1 left P.W.12 in the house of P.W.7 and requested him to take care of him. When P.W.12 was staying in the house of P.W.7, he showed all the injuries caused on his body and explained how those injuries were caused to him. From the available evidence, it could be seen that the prosecution had proved that between 12.9.2001 and 15.9.2001, A-1, A-2 and A-14 were staying in Hotel Astoria, and during those days, the other accused were staying in Hotel Sangeeth along with P.Ws.12 and 16, and that on 14.9.2001, P.Ws.12 and 16 have noticed that Jayakumar was taken by A-1 and A-3 accompanied by other accused in the TATA Sumo and left Hotel Sangeeth, but when they returned, Jayakumar was not found. On the next day, whey they were about to start on 15.9.2001, P.W.16 asked A-3 and P.W.12 asked A-1 as to the whereabouts of Jayakumar. When they left from Hotel Sangeeth, they have taken the deceased, but the accused alone returned, and the deceased did not return. When questioned, the accused have given different explanations to P.Ws.12 and 16. While the prosecution has brought to the notice of the Court sufficient proof as to the abduction of the deceased by taking him from the hotel on the date of occurrence through the clinching evidence of P.Ws.12 and 16, unless the abductors explain otherwise to the Court as to what happened to the deceased or what else they did with the victim, the Court can draw the presumption that all the abductors were responsible for the murder. When the abductors withheld from the Court as to what happened to the deceased, who was taken by them, there was every justification for drawing an inference in the light of all the preceding circumstances narrated and recorded by the Court that the abductors are the murderers of the deceased.
43.In the instant case, through the evidence of P.Ws.12 and 16, which, in the considered opinion of the Court, is convincing and acceptable, the prosecution has clearly established that the deceased Jayakumar was abducted by the accused. Then the burden of proof lies on the abductors, the appellants herein, and they alone could tell the Court as to what happened to the deceased after he was abducted. It is true that the deceased Jayakumar did not return. But, his dead body was recovered from the silent valley when it was identified by A-3 by giving the confession recorded by the Investigator. Sec.106 of the Indian Evidence Act, it is true, is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But, the said provision could be applied to cases where the prosecution has succeeded in proving the facts for which a reasonable inference could be drawn regarding the existence of certain other facts unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the Court to draw a different inference. In the instant case, the facts and circumstances proved by the prosecution would point to the reasonable inference that it is for the accused to explain what happened to the person abducted by virtue of the special knowledge. If they fail or suppress or the explanation found to be false, it would necessarily drive the Court to draw an inference that the abductors namely the appellants herein, were the murderers of the deceased.
44.At the time of the trial, the prosecution had placed the following material objects which were recovered by the Investigating Officer pursuant to the confessional statements recorded by him in the presence of witnesses which, in the considered opinion of the Court, would be pointing to the nexus of the accused with the crime in question. On 27.5.2002, A-1 and A-2 were taken to police custody till 3.6.2002. Both the accused were interrogated and confessional statements were recorded. A-4 and A-5 were taken to police custody, and they gave confessional statements. On their confession, A-7 was arrested on whose confession, M.O.20, cell phone, M.O.21 T.Shirt, and M.O.7 gold ring, were recovered under a cover of mahazar. The confession of A-6, the admissible part of which is Ex.P47, was recorded, and an observation mahazar, Ex.P29, and a rough sketch, Ex.P108, in respect of Virugambakkam house were prepared by the Investigator, and M.O.24, T.Shirt, was recovered under a cover of mahazar. That apart, Exs.P24 to Exs.P28, the letters despatched by A-6 to the residence of the deceased and P.W.12, were recovered. On the confession of A-6, Ex.P40, T.Shirt M.O.22, and a route map, M.O.23, were recovered. On the basis of the confession of A-11 Premkumar, marked as Ex.P50, M.O.26, knife, was recovered under a cover of mahazar.
45.On perusal of the available materials, this Court is of the considered opinion that the evidence of P.Ws.12 and 16 has got a vital role to play. Admittedly, P.W.12 was a close associate of the deceased, who was actually abducted along with him from Aavichi School on 23.8.2001 in two Ambassador Cars driven by P.Ws.18 and 25 respectively. From the evidence of P.W.9, it would be quite clear that he engaged those cars from its owner at the request of A-3. P.W.12 has categorically deposed that he was kept under illegal confinement along with the deceased from 23.8.2001 to 4.9.2001. He has further deposed that he along with the deceased Jayakumar was kept in the grandmother’s house of A-8 Gopi at Athipakkam till 12.9.2001. It was A-8 who arranged two rooms at Chakravarthy Lodge. Exs.P33 and P34 are the ledgers seized from the said Chakravarthy Lodge in which A-8 has signed the register as allottee of two rooms. P.W.31 has categorically deposed that it was he who was attending on the deceased by serving food, etc., and thus the fact that P.W.12 and the deceased were kept in illegal custody at Athipakkam during the relevant time, while A-1 and others were staying at Chakravarthy Lodge, Vandavasi, remained proved.
46.P.W.12 has further deposed that on 4.9.2001, the deceased Jayakumar and himself were taken to Kodaikanal where they were staying till the date of occurrence. This evidence of P.W.12 that they were abducted from Athipakkam to Kodaikanal is spoken to by P.W.16 who drove the TATA Sumo Car in which both of them were taken. P.W.16 has categorically deposed that it was he who arranged for another Ambassador Car in which car A-1, A-2 and A-14 travelled. The contention put forth by the learned Counsel for the appellants that the non-examination of the owner of the TATA Sumo and the driver of the Ambassador Car would lead to the conclusion that those cars were not utilised for that purpose has got to be discountenanced since P.W.16 was a driver of a vehicle who was actually working in a Travel Agency and he had no axe to grind. Nothing is shown that he is either interested in the prosecution nor inimical to the accused. Despite the cross-examination in full, his evidence remained unshaken. He has also categorically deposed that the accused reached Kodaikanal on 13.9.2001 morning along with P.W.12 and the deceased Jayakumar. Out of them, A-1, A-2 and A-14 stayed at Hotel Astoria, and along with the deceased, P.W.12 and others stayed at Hotel Sangeeth. This evidence of P.W.16 coupled with the evidence of P.W.14, the Receptionist, at Hotel Sangeeth, and P.W.15, the Room Boy, at Hotel Sangeeth and also P.W.8, the Manager of Hotel Astoria, and the necessary registers for the stay during those days would clearly corroborate the evidence of P.W.12. The evidence of P.W.12 was much assailed by the learned Counsel for the appellants that even as per his evidence, he was taken back to Madras and locked in the house of P.W.7, and both P.Ws.12 and 7 have spoken about the simple injuries sustained by P.W.12, and the manner in which they were also caused by the accused, but it is highly unnatural and surprising that he was keeping mum without divulging any fact to anybody till A-1 was arrested on 27.5.2002; that the silence of P.W.12 all along these period would be telling that he was actually lying before the Court, and his evidence should not be accepted. This contention cannot be countenanced in view of the psychic fear and the grip of terror under which P.W.12 was kept between 23.8.2001 and 14.9.2001. He was kept in custody along with Jayakumar at number of places namely Virugambakkam, Athipakkam and also Kodaikanal, and Jayakumar was also found missing. As could be seen, if anything came out of his mouth, it would endanger his life. Under such circumstances, he has not approached the police or others. In order to save his life, he has not opened his mouth either before the police or before others.
47.As far P.W.16 was concerned, the comments that were raised against him that he should not have driven the vehicle and stayed during those period as put forth by him at Kodaikanal have got to be rejected since the scrutiny of the evidence would inspire the confidence of the Court, and in the considered opinion of the Court, the evidence of P.Ws.12 and 16 have to be believed. Their evidence coupled with all other circumstances which were pointing to the guilt of the accused, would lead to the irresistible inference that only pursuant to the conspiracy hatched up between A-1 to A-3, the deceased Jayakumar was abducted along with P.W.12, and in that process, all the other accused have joined, and finally Jayakumar was murdered as put forth by the prosecution.
48.Much comment was made by the appellants’ side that there was undue delay and also the manner in which the test identification parade was conducted was irregular, and hence they should not be given any evidentiary value. The identification parade of all the 14 accused were conducted on different dates. A-1 was arrested on 27.5.2002. A-2 was arrested on 27.5.2002. A-3 surrendered on 1.4.2002. A-4 and A-5 surrendered on 19.4.2002. These five accused were identified by P.W.12 and P.W.16 on 26.6.2002. A-6 was arrested on 23.6.2002, and A-7 was arrested on 7.7.2002. A-8 was arrested on 30.6.2002, and A-9 was arrested on 13.7.2002. A-10 was arrested on 3.7.2002. These five accused were identified by P.Ws.12 on 18.7.2002. The Metropolitan Magistrate who conducted the identification parades has strictly followed the procedural formalities and the witnesses have identified the said accused properly. Taking into consideration the date of arrest and the date of identification parade, delay is not noticed. Apart from those witnesses, P.W.31 has identified A-1, A-2, A-3, A-6 and A-8 on 18.7.2002. P.W.25 has identified A-3 and A-6 on 28.11.2002. P.W.21 has identified A-3 and A-6 on 19.7.2002. P.W.23 has identified A-1, A-2 and A-3 on 19.7.2002. Apart from these witnesses, P.W.18 has identified A-11, A-12 and A-13 on 8.4.2003. P.W.25 has identified A-12 and A-13 on 8.4.2003. P.W.8 has identified A-14 on 8.4.2003 and also A-1, A-2 and A-8 on 8.4.2003 and 26.11.2002 respectively. P.W.9 has identified A-14 on 8.4.2003 and A-1, A-2 and A-8 on 28.11.2002. P.W.10 has identified A-14 on 8.4.2003. A-1, A-2 and A-8 were identified on 28.11.2002. P.W.15 has identified A-11 on 8.4.2003. A-3 and A-6 were identified on 28.11.2002. P.W.7 identified A-1 and A-2 on 19.7.2002.
49.The learned Counsel for the appellants attacked this identification parade mainly on the ground that there was delay in the conduct of the identification parade, and hence no evidentiary value could be attached. Ordinarily the contention put forth by the learned Counsel has got to be accepted. But in the case on hand, the said contention cannot be countenanced. It is true that some delay is noticed in the conduct of the identification parade. But, the delay, in the considered opinion of the Court, remained explained by necessary circumstances. The CBCID commenced its investigation on 24.5.2002, and the investigation was done for a period of six months during which period, the case was investigated at Madras, Vandavasi and also at Kodaikanal. Since the case rested upon circumstantial evidence, number of witnesses were to be examined, and their statements were to be recorded. That apart, material objects and records were to be collected from all the places. The accused 14 in number, have also been arrested in the interval period. Out of the 14 accused, except A-3, A-4 and A-5, all others were arrested at different points of time, and the requisitions have been made for the conduct of the identification parade by the Investigating Officer, P.W.49, without delay. The identification parade was conducted by the Metropolitan Magistrate pursuant to the orders of the Chief Metropolitan Magistrate, and thus the delay has occasioned in that process.
50.The learned Counsel brought to the notice of the Court that the witnesses had occasion to see the newspapers in which the photos of the accused were flashed and also they had the news items. At this juncture, it is pertinent to point out that not even one suggestion was put to any of these witnesses who have identified the accused that the Police Personnel had taken any steps to show the accused to the witnesses, and thus, it would be quite clear that the police had taken all care that till the identification parade was conducted, the witnesses did not see the accused. Apart from that, the time interval between the date of arrest and also the identification parade in case of each accused is reasonable. Thus, it cannot be stated the delay that has occasioned remained unexplained. This Court is of the considered opinion that along with all other circumstances placed by the prosecution, without any impediment the identification parade proceedings in which the accused were identified by the above witnesses, could be relied upon as a piece of evidence. The above view of this Court is fully fortified by the following decisions of the Apex Court.
51.The Apex Court had an occasion to consider the evidentiary value of the test identification parade and also held that it does not constitute a substantive piece of evidence, but can be used as corroborative of the statement in Court. In a case reported in 2005 SCC (CRI) 1269 (MUNSHI SINGH GAUTAM AND OTHERS V. STATE OF M.P.), the Apex Court has held as follows:
“16. As was observed by this Court in Matru v. State of U.P.11 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain12.) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.
17. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn.13, Vaikuntam Chandrappa v. State of A.P.14, Budhsen v. State of U.P.15 and Rameshwar Singh v. State of J&K16.)”
52.The Apex Court has also cited the above decision in the case reported in (2007) 1 SCC (CRI) 582 (AMITSINGH BHIKAMSINGH THAKUR V. STATE OF MAHARASHTRA).
53.From the above judgments, it could be seen that even if there was a delay in conducting the test identification parade, it could not be considered as fatal to the prosecution case if the delay was beyond the control of the investigation agency. As stated above, in the instant case, 14 accused were involved, and the investigation was to be done at different places. Some of the accused were arrested at different points of time, and some of them who have surrendered before the Court, were taken to police custody. They were to be identified by number of witnesses, and the investigation agency was to collect materials from different places. That apart, a part of the case rested upon circumstantial evidence. Hence it can be well stated that the circumstances were beyond the control of the investigation agency, and the delay was neither detrimental nor fatal to the prosecution. Viewing the test identification parade, this was only with the idea that the witnesses who claim to have seen the culprits at the time of the occurrence were to identify them, and it was only a test to check upon their veracity. It can even be stated that the identification parade itself is conducted during the investigation stage, and the main object of holding the same is to test the memory of the witnesses based upon the first impression and also to enable the prosecution to decide whether all or any of them can be cited as eyewitnesses of the crime. It does not constitute substantive piece of evidence, but it has got to be used as corroborative of the statement in Court.
54.In the case on hand, the evidence of P.W.12 would indicate that he has been all along with the deceased Jayakumar and all the accused starting from the commencement of the crime of abduction and ending with the murder of Jayakumar. P.W.16 is the driver who took the accused and also P.W.12 and the deceased in the TATA Sumo driven by him. That apart, P.Ws.14 and 15 and other witnesses had not only seen the accused and the deceased, but also moved with them for number of days. While these witnesses were examined in Court, it would constitute a direct evidence which can be taken as substantive piece of evidence which stood fully corroborated by the identification made by the witnesses during the time of the test identification parade.
55.Even as early as 1973, the Apex Court had an occasion to consider such contentions in a case reported in 1973 SCC (CRI) 574 (BHARAT SINGH V. STATE OF U.P.) and has held as follows:
“6. In Hasib v. State of Bihar2 it was observed by the Court that identification parades belong to the investigation stage and therefore it is desirable to hold them at the earliest opportunity. An early opportunity to identify tends to minimise the chances of the memory of the identifying witnesses fading away due to long lapse of time. Relying on this decision, counsel for the appellant contends that no support can be derived from what transpired at the parade as it was held long after the arrest of the appellant. Now it is true that in the instant case there was a delay of about three months in holding the identification parade but here again, no questions were asked of the investigating officer as to why and how the delay occurred. It is true that the burden of establishing the guilt is on the prosecution but that theory cannot be carried so far as to hold that the prosecution must lead evidence to rebut all possible defences. If the contention was that the identification parade was held in an irregular manner or that there was an undue delay in holding it, the Magistrate who held the parade and the Police Officer who conducted the investigation should have been cross-examined in that behalf.”
It is pertinent to point out that in the instant case, to the Investigation Officer or to the Magistrate, no cross-examination has been done in that regard. Hence the appellants cannot be permitted to advance such argument at the appellate stage.
56.The prosecution placed reliance on the confessional statement of A-11 recorded by P.W.44, the XIV Metropolitan Magistrate on 27.11.2002 under Sec.164 of Cr.P.C. which is marked as Ex.P96. The trial Court has also accepted the same. In the considered opinion of the Court the same cannot be attached with any evidentiary value for more reasons than one. A perusal of the confessional statement of A-11 recorded by the XIV MM and marked as Ex.P96, would reveal that on the first occasion when he was produced before the Magistrate, there is nothing to indicate that relevant questions were put to him to show that the Magistrate was satisfied that the accused came forward to give the confessional statement voluntarily. There is also nothing to indicate whether sufficient time for retraction was given to him. Further, as contemplated under Sec.164(2) of Cr.P.C. the Magistrate has neither written the memorandum nor even the memorandum what is contemplated under that provision is found, and thus it is in clear violation of Sec.164(2) of Cr.P.C. The Apex Court had an occasion to consider the solemn nature of the confession recorded under Sec.164(2) of Cr.P.C. and also the duty cast upon the Magistrate in the following decisions.
57.The Apex Court in 2001 (2) CRIMES 18 (DHANANJAYA REDDY AND OTHERS V. STATE OF KARNATAKA) has held as follows:
“The function of the Magistrate in recording confession under Section 164 of the Code is a very solemn act which he is obliged to perform by taking due care to ensure that all the requirements of Section 164 are fully satisfied. The Magistrate recording such a statement should not adopt a casual approach as appears to have been shown by Shambulingappa (PW 50) in this case. Besides ensuring that the confessional statement being made before him is voluntary and without pressure, the Magistrate must record the confession in the manner laid down by the section. Omission to comply with the mandatory provisions, one of such being as incorporated in sub-section (4) of Section 164 is likely to render the confessional statement inadmissible.”
58.In AIR 1978 SC 1574 (CHANDRAN V. THE STATE OF MADRAS), the Supreme Court has held that the Magistrate instead of stating that he believed the statement to be voluntarily made, he has only stated that he hope and consequently the entire confession was held to be inadmissible.
59.The Supreme Court has held in 1995 AIR SCW 956 (SHIVAPPA V. STATE OF KARNATAKA) as follows:
“The Magistrate who is entrusted with the duty of recording confession of an accused coming from police custody to jail custody must appreciate his function in that behalf as one of a judicial officer and he must apply his judicial mind to ascertain and satisfy his conscience that the statement the accused makes is not on account of any extraneous influence on him. That indeed is the essence of a voluntary statement within the meaning of the provisions of Section 164 CrPC and the rules framed by the High Court for the guidance of the subordinate courts. Moreover, the Magistrate must not only be satisfied as to the voluntary character of the statement, he should also make and leave such material on the record in proof of the compliance with the imperative requirements of the statutory provisions, as would satisfy the court that sits in judgment in the case, that the confessional statement was made by the accused voluntarily and the statutory provisions were strictly complied with.”
60.In the case on hand, the Magistrate has not satisfied as to the voluntary character of the statement. Since the imperative requirements as to the statutory provision under Sec.164 of Cr.P.C. were not strictly followed by the Judicial Magistrate, the confessional statement cannot be attached with any evidentiary value, and hence the lower Court should have rejected that piece of evidence.
61.P.W.49 the Investigating Officer, has categorically deposed that the statement of P.W.12 was recorded by him, and the statement of the said witness was recorded by the MM under Sec.164 of Cr.P.C., which is marked as Ex.P117. When both are perused, it is true that certain discrepancies are found. But those discrepancies do not affect the truth of his evidence.
62.It is not disputed by the prosecution that originally, a statement was recorded by the Inspector of Police, K4 Anna Nagar Police Station, from P.W.12. Since the investigation was not done properly and also in the right line, there arose an occasion for the transfer of the investigation from the Inspector of Police, K4 Anna Nagar Police Station, to CB CID, and hence the statement so recorded by the Inspector of Police, K4 Anna Nagar Police Station, cannot be attached with any importance. It is true that originally, Dhanasekar was included as an accused. But, when the investigation came to the hands of the CB CID, it was found that the crime was pursuant to the conspiracy hatched up by A-1, A-2 and A-3, and the other accused were involved in the crime, and Dhanasekar has nothing to do with the crime, and hence he was deleted by an order of Court. Under the circumstances, the above contention of the learned Counsel for the appellants cannot be countenanced.
63.It is true that when P.W.12 and Jayakumar were abducted in two cars, they did not try to escape at any point of time. Needless to say that they were in the company of 14 accused who were actually abducting them. If they made any attempt to escape, the result would have been their end there itself, and hence quite natural, they did not make any attempt to escape.
64.The other contentions put forth by the learned Counsel for A-11 are liable to be rejected. The Court has already rejected Ex.P96, the judicial confessional statement recorded by P.W.44 since it is legally found to be infirm. But, the prosecution has got abundant evidence to show that A-11 had a role from the commencement of the crime of abduction, and even when Jayakumar was taken from Hotel Sangeeth to the silent valley, he also accompanied with all of them. But, the lower Court has not framed any charge against A-11 as far as the charge of murder of Jayakumar is concerned. Under the circumstances, the judgment of the trial Court finding A-11 guilty for the charge of murder cannot be sustained. But, at the same time, he was all along with the other accused for committing the crime of abduction for commission of murder of Jayakumar, and hence the lower Court found him guilty under Sec.364 IPC and awarded punishment of 10 years Rigorous Imprisonment with fine and default sentence, which has got to be sustained. As regards the other appellants who were found guilty by the lower Court, the judgment of the trial Court has got to be sustained.
65.Accordingly, the judgment of the trial Court finding A-1 to A-7, A-11 and A-14 under Sec.364 of IPC and awarding 10 years RI and a fine of Rs.10000/- with default sentence is confirmed. The sentence already undergone by A-11 shall be given set off. The conviction of A-1 to A-3 under Sec.120(B) of IPC and the sentence of life imprisonment along with a fine of Rs.50000/- imposed by the trial Court are confirmed. The conviction of A-1 to A-7 and A-14 under Sec.302 IPC and the consequent sentence of life imprisonment along with a fine of Rs.50000/- imposed upon them by the trial Court are confirmed. The conviction of A-4 and A-5 under Sec.379 of IPC and the imposition of sentence of 2 years RI by the trial Court are confirmed. The conviction of A-3 and A-6 under Sections 344, 365 and 363 of IPC and the consequent sentence of 2 years RI and a fine of Rs.5000/- and default sentence, 5 years RI with a fine of Rs.10000/- and default sentence and 5 years RI with a fine of Rs.7000/- and default sentence respectively imposed by the trial Court are confirmed. The sentence already undergone by A-1 to A-7 and A-14 shall be given set off. The conviction and sentence of life imprisonment along with a fine of Rs.50000/- and default sentence imposed upon A-11 under Sec.302 of IPC are set aside, and he is acquitted of that charge. The fine amount paid by A-11 in that regard will be refunded to him.
66.Before concluding the judgment, the Court has to record its utmost appreciation for the investigation made by the team of Officers of the CB CID, and in particular, P.W.49, the Investigating Officer, who has taken sincere and strenuous steps in gathering the necessary materials and pieces of evidence at different places of the State and unfold the entire mystery of the case thereby enabling the Court to arrive at a just and correct decision in the case. Necessary it is to record its gratitude for the real assistance rendered by Mr.T.K.Sampath, Mr.R.Sankarasubbu, Mr.G.Ravikumar and Mr.S.Manohar, appearing for the respective appellants and also the learned Additional Public Prosecutor Mr.P.Kumaresan, in taking the Court to the voluminous evidence and also necessary materials.
67.In the result, both these criminal appeals are dismissed.
nsv/
To:
1.The Additional District and
Sessions Judge,
Fast Track Court No.I,
Chennai.
2.The Deputy Superintendent of Police
CB CID, Metro Wing, Chennai 2
K4 Anna Nagar Police Station
Cr.No.1440/2001
3.The Public Prosecutor
High Court,
Madras