BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:25/08/2009 CORAM THE HONOURABLE MR. JUSTICE P.MURGESEN and THE HONOURABLE MR. JUSTICE C.S.KARNAN CRL.A.(MD)No.401 OF 2008 K.Nijamytheen ... Appellant/Sole Accused Vs State rep. By:: The Inspector of Police, Sulakovai Police Station, Virudhunagar District. ... Respondent/Complainant Criminal Appeal filed under Section 374(2) Cr.P.C against the judgment of conviction and sentence passed by the learned Additional District and Sessions Judge (Fast Track Court), Virudhunagar, dated 05.07.2007 made in S.C.No.138 of 2005. !For Appellant ... Mr.E.Somasundaram ^For Respondent ... Mr.P.N.Pandidurai, Government Advocate (Crl.Side) :JUDGMENT
This Criminal Appeal is directed against the conviction and sentence
passed by the learned Additional District and Sessions Judge (Fast Track Court),
Virudhunagar, dated 05.07.2007, made in S.C.No.138 of 2005, convicting the
appellant/accused under Sections 302, 364 and 201 I.P.C. and sentenced him to
undergo rigorous imprisonment for three years for the offence under Section 364
I.P.C., to undergo life imprisonment for the offence under Section 302 I.P.C.
and to undergo rigorous imprisonment for one year for the offence under Section
201 I.P.C.
2.The case of the prosecution briefly stated is as follows:
i) The appellant is the accused before the trial Court. P.W.2, Jafer Ali
is the resident of Aruppukottai Kattubava North Street and his wife is P.W.3,
Bakkir Meera. P.W.4, Kaliya Begam is the sister of P.W.2. P.W.5, Noorjahan is
the mother of P.Ws.2 and 4. P.W.9, Jahir Hussain is the another close relative
of P.W.2. The accused is the grand son of P.W.5, Noorjahan through her daughter
P.W.4, Kaliya Begam. The deceased Mohammed Ismail is the son of P.Ws.2 and 3.
He was studying in Al-Ameen Muslim Higher Secondary School at Aruppukottai.
P.W.20 is the Headmistress and P.W.10 is the watchman of the said school.
(ii) The accused and his grand-mother P.W.5, Noorjahan sustained injuries
due to the fall of stone from the house roof and the accused was not able to get
completely cured. So, he demanded Rs.15,000/- from P.W.2. P.W.2 is not a rich
man, so he refused to handover Rs.15,000/- to him. P.W.21 is the classmate of
the deceased boy. On the fateful day, ie., on 21.03.2005, the deceased boy went
to the school, but he did not return.
(iii) On 25.03.2005, P.W.1, Thirumaran, V.A.O of Sulakkarai has received
an information from the Panchayat President that a dead body of a boy was found
in an unprotected well situated opposite to the V.T.Mill, Sulakkarai. Then, he
went to the scene of occurrence and sent a complaint through P.W.15,
Karuppasamy.
(iv) The complaint was received by P.W.19, Dhanasekaran, Sub-Inspector of
Police, Virudhunagar Rural Police Station was also the incharge of Sulakkarai
Police Station. On 23.03.2005, at about 9.00 A.M., he received Ex.P.1, complaint
from P.W.15, Karuppasamy and registered a case in Crime No.94 of 2005 under
Section 174 of Cr.P.C. Ex.P.13 is the printed F.I.R.
(v) P.W.25, Nagarajan, Inspector of police, took up the case for
investigation on the instruction of the Deputy Superintendent of Police,
Virudhunagar Town. He sent for the Fingerprint Expert and Scientific Assistant
and visited the scene of occurrence in the presence of P.W.12, Seeni and P.W.13,
Palaniappan and prepared Ex.P.6 Observation Mahazar and Ex.P.29, Rough Sketch.
He also sent intimation to the Fire Service people and also to the photographer.
After the body was taken from the well he recorded the fingerprints of the body
and sent the body to the Government Hospital through constable with Ex.P.27,
requisition letter to conduct autopsy. P.W.18, Head Constable Sikkanthar Ali
was also present at the time of examination of the body. Then, P.W.25 sent
information about the death of the boy to all the police stations and Muslim
schools.
(vi) On 23.03.2005 at about 2.30 P.M., P.Ws.2 and 3 came to the Government
Hospital and identified the body as that of their son. Then P.W.25, conducted
inquest over the body of the deceased in the presence of the panchayatars. At
that time, P.W.18, Head Constable Sikkanthar Ali was present. Ex.P.26 is the
Inquest Report. P.W.25 requested the doctor who conducted Postmortem to
preserve Viscera. Then, he examined the witnesses and recorded their
statements.
(vii) On 24.03.2005, autopsy was conducted by P.W.8, Dr.Jawahar and he
found the following:
“No external injuries. Thorax well formed. Hands empty. Abdomen unform
in size.
Opening of Thorax fracture ribs left chest 6 to 12. Heart 300 gms c/s
congested. Lungs 550 grams each c/s congested cut piece float in water over
bubbles Hyoid bone – Broken Trachea. No mud seen Stomach – empty. Liver 1500
gms. c/s congested. Spleen – decomposed. Kidneys – 40 gms each decomposed.
Intestines distended with gas. Bladder – empty. No fracture pelvis of spinal
card. Skull set for superimposition.”
After conducting autopsy he issued Ex.P.5, Post-mortem Certificate. Under
Ex.P.4, he opined that the deceased would appear to have died of Asphyxia due to
drowning 3 to 4 days prior to autopsy.
(viii) On 24.03.2005, P.W.25 altered the F.I.R. into one under Section 364
and 302 I.P.C. and sent Express Report to the Judicial Magistrate concerned.
Ex.P.28 is the Express Report. P.W.18, Head Constable Sikkanthar Ali was
present when the First Information Report was altered. Then, P.W.18 took
viscera to the forensic laboratory and also handed over the parts of the body
after the postmortem was conducted.
(ix) On 25.03.2005, P.W.25 examined P.W.20, Jalsa Begam, Headmistress of
Al-Ameen School, P.W.10, Samsutheen, Watchman of the said school and P.W.21,
Mohammed Asif classmate of the deceased and recorded their statements. On
04.04.2005, he obtained the photograph of the deceased from his father and sent
the same to Expert through Court to conduct Super Imposition Test.
(x) P.W.23, Alarmelmangai, Scientific Assistant, Forensic Lab, Madras
conducted Super Imposition Test and gave report that the skull could have
belonged to the child seen in the photograph.
(xi) Then, investigation was conducted by P.W.26. He arrested the accused
on 10.04.2005 at 5.00 P.M. in front of the Collector’s Office Bus Stop in the
presence of P.W.14, Govindaraj and P.W.15, Karuppasamy and enquired and recorded
the confession statement of the accused. Exs.P.7 and 8 are the signatures of
P.Ws.14 and 15 in the confession statement of the accused. He examined P.W.11,
Narayanasamy, P.W.6, Dr. Subburaj, P.W.9, Jahir Hussain, P.W.14, Govindaraj and
P.W.15 Karuppasamy and recorded their statements. He sent a requisition to the
Judicial Magistrate to record the statements of P.W.4, Kaliya Begam and P.W.5,
Noorjahan under Ex.P.9 and their statements were recorded under Exs.P.10 and 11
by P.W.16, Judicial Magistrate.
(xii) He also sent a requisition to the Judicial Magistrate, P.W.22 to
record the statement of accused. But the accused did not give any confession
and it was recorded by P.W.22.
(xiii) Then, P.W.26 was transferred. Then, the investigation was
conducted by P.W.27, Ruthra Sekaran, Inspector of Police. On 18.07.2005, he
examined P.W.7, Dr.Mahalakshmi and P.W.8, Dr. Jawahar and recorded their
statements. Then, he was transferred and then, the investigation was conducted
by P.W.28, Selvaraj, Inspector of Police.
(xiv) On 02.08.2005, P.W.28 examined P.W.1, Jafer Ali, P.W.2, Bakkir
Meera, Allabaksh, Kader Maideen, Sulthan Beevi, P.W.10 Samsutheen, P.W.20, Jalsa
Begam and Sikkanthar and recorded their statements. On 11.08.2005, he completed
the investigation and filed charge sheet under Sections 364, 302 and 201 of
I.P.C. against the accused.
3. Before the trial Court, P.Ws.1 to 28 were examined and Exs.P.1 to P.30
and M.Os.1 to 3 were marked. All the incriminating pieces of evidence let in by
the prosecution witnesses were put to the accused under Section 313(1) of the
Code of Criminal Procedure questioning the accused, the accused denied the same
as false. There was no oral or documentary evidence adduced on the side of the
accused.
4. On consideration of the evidence on record, learned Additional District
and Sessions Judge (Fast Track Court), Virudhunagar, found the accused guilty
under Sections 302, 364 and 201 I.P.C. and sentenced him to undergo rigorous
imprisonment for three years for the offence under Section 364 I.P.C., to
undergo life imprisonment for the offence under Section 302 I.P.C. and to
undergo rigorous imprisonment for one year for the offence under Section 201
I.P.C.
5. Challenging the judgment of the learned Additional District and
Sessions Judge (Fast Track Court), Virudhunagar, this appeal has been filed by
the appellant/accused.
6. Point for consideration is:
“Whether the accused/appellant could be held guilty under Sections 302,
364 and 201 I.P.C.”
7. Point: P.W.2 is the resident of Aruppukottai Kattubava North Street.
P.W.3 is his wife. They are blessed with 3 daughters and one son. The name of
their son is Mohammed Ismail. P.W.4 is the sister of P.W.2. P.W.5 is the
mother of P.W.2 and P.W.4. P.W.9, Jahir Hussain is the close relative of P.W.2.
The boy Mohammed Ismail was aged about 11 years and was studying 7th standard in
Aruppukkottai Al-Ameen Muslim Higher Secondary School. P.W.20 is the
Headmistress of the school in which the boy studied. P.W.10 is the watchman of
the school. P.W.21 is the classmate of Mohammed Ismail. Further, the accused
is the son of P.W.4 Kaliya Begam and grand son of P.W.5 Noorjahan. The accused
was working under P.W.11 Narayanasamy. The accused sustained fracture. He was
not able to get the complete treatment. So, he demanded Rs.15,000/- from his
uncle P.W.2 Jafer Ali. P.W.2 is not a rich man and he was unable to pay the
said amount.
8. On the fateful day, ie., on 21.03.2005, deceased Mohammed Ismail went
to the school, but he did not return. The body of the boy was found on
23.03.2005 in an unprotected well situated opposite to the V.T. Mill,
Sulakkarai. On receiving the information from the Panchayat President, P.W.1,
the V.A.O. of Sulakkari went to the scene of occurrence and found the dead body
wearing green colour half pant and while colour half shirt. Since, he was not
able to identify the body, he sent a complaint to the Police through P.W.15,
Karuppasamy.
9. Then the wheel of the Criminal Law was set in motion. P.W.19, received
the complaint of V.A.O. and on the basis of the complaint he registered a case
in Crime No.94 of 2004 under Section 174 Cr.P.C. P.W.25, took up the case for
investigation and went to the place of occurrence. He had taken steps to
recover the dead body found in the well. He sent information about the dead
body of the boy to all the Police Stations and Muslim Schools. On 23.03.2005,
at about 2.30 P.Ws.1 and 2 came to the hospital and identified the body as their
son. On 24.03.2005, P.W.8 Doctor Jawahar conducted autopsy on the body of
Mohammed Ismail and opined that the deceased would appear to have died due to
the fracture of the hyoid bone and due to asphyxia just 3 to 4 days prior to the
autopsy. On the basis of his statement, P.W.25 altered the F.I.R. into one under
Sections 364 and 302 I.P.C. He also requested Thasildar, Aruppukkottai to
submit the F.I.R. registered under Section 174 of Cr.P.C. to the concerned
Court.
10. In order to ascertain whether the deceased is the son of P.Ws.2 and 3,
the Superimposition test was conducted by P.W.23, Alarmelmangal, Scientific
Assistant, Forensic Lab, Madras. She conducted Superimposition Test
scientifically and gave a report that the skull belonged to the boy shown in the
photograph. So, the identification of the boy is ascertained and proved.
11. P.W.26, Rangarajan took the case for further investigation and
arrested the accused in front of the Collector’s Officer, Virudhunagar and
recorded the confession statement given by the accused in the presence of
witnesses and send the accused to Judicial custody. Thereafter, P.W.17 Ruthra
Sekaran took-up the case for further investigation and examined Dr. Meyyalagan
and Dr.Jawahar and recorded their statements. Finally, the investigation was
done up P.w.28, Selvaraj. After completing the investigation he laid charge
sheet against the accused under Sections 364, 302 and 201 I.P.C.
12. Learned counsel for the appellant relied on decision of the Honourable
Apex Court in Syed Hakkim and Anr. v. State reported in 2009-2-L.W. (Crl.) 768,
wherein it is pointed out by the Honourable Apex Court that five conditions must
be fulfilled before conviction in the case of circumstantial evidence, which is
as follows:
“(1) the circumstances from which the conclusion of guilt is to be drawn
should be fully established. The circumstances concerned ‘must’ or ‘should’ and
not ‘may be’ established;
(2) the facts so established should be consistent only with the hypothesis
of the guilt of the accused, that is to say, they should not be explainable on
any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be
proved; and
(5) there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been done
by the accused.”
13. It is the stand of the prosecution that having failed to get money for
his treatment from P.W.2, the accused kidnapped and killed P.W.2’s son Mohammed
Ismail. Learned counsel for the appellant argued that there is no motive for
the accused to kill the victim. Further, P.W.2 has stated that the accused was
completely recovered. So, there is no necessity for the accused to get money for
treatment from P.W.2. No doubt, P.W.2 has stated that the accused was
completely cured.
14. P.W.5 is the grand mother of the accused. She deposed that there is a
malunion of the bones of the accused and he was not completely cured.
Absolutely, the grand mother is not having grievance against the accused.
Since, the accused was not completely cured, he demanded money from P.W.2.
P.W.2 is not a qualified man to spoke about whether the fracture sustained by
the accused was cured or not. The grand mother of the accused deposed that both
herself and her grand son sustained injuries and the accused was not recovered
completely. Her version was confirmed by P.W.9, Jahir Hussain. The evidence of
P.W.9 would show that the accused informed him that he must take treatment in a
private hospital and he need Rs.10,000/- to Rs.15,000/-.
15. Further, learned counsel for the appellant would point out that P.W.9
deposed that because of his brother’s request he is deposing before the Court as
witness. But, P.W.9 is also a relative of the accused. Nothing was elicited from
P.W.9 to show that he is not a trustworthy witness. So, from the evidence of
P.W.9, it was established that the accused was in need of money for taking
treatment. When he approached P.W.2, it was rejected, so he became unhappy and
angry due to the denial of amount from him. The evidence of P.W.5 also would
show that Dr.Subburaj demanded Rs.15,000/- for giving treatment. So, the
accused demanded the amount from P.Ws.2 and 3, but they were not able to pay the
amount for the treatment of the accused, so he took vengeance against P.W.2.
This was was spoken by P.W.5. P.W.4, the mother of the accused has also aware
of the demand of the money from P.W.2.
16. Further, the learned counsel for the appellant argued that though
witnesses spoke before the Court that the accused demanded Rs.15,000/- from
P.W.2, but it is not stated by the witnesses to the Inspector of Police. But the
perusal of the statements recorded under section 161 Cr.P.C. from the witnesses
would show that they have spoken about the demand of the accused to P.W.2 to pay
Rs.15,000/-. So, the claim of the appellant that the witnesses have not spoken
about the demand of Rs.15,000/- from P.W.2 by the accused to the Investigation
Officer is not correct.
17. An attempt was made by the Investigation Officer by examining P.W.6
Subburaj that the accused approached Dr.Subburaj for treatment and he advised
the accused that for taking treatment in the private hospital and he has to
spend more money. P.W.6 turned hostile and he did not support the case of the
prosecution. P.W.6 stated that he is not able to remember whether he advised
the accused to get treatment at private hospital or not. But, it is true that
people opt for getting treatment in private hospital, where they can get better
treatment than the Government Hospital. Though he turned hostile, evidence on
record would show that the accused was not completely cured.
18. Learned counsel for the appellant relied on the decision in Arun
Bhakta @ Thulu v. State of West Bengal reported in 2009-1-L.W. (Crl.) 573 and
argued that it would be unsafe to convict the accused if there is diametrically
opposite version. Further, he would submit that the witnesses spoke so many
things before the Court, which were not spoken before the investigation officer.
On careful consideration of the evidence meticulously, it is clear that the
witnesses have made some exaggeration. As per the decision of the Honourable
Apex Court, this Court has to remove the chaff from the grains to found the
truth. Testing the case on hand in the light of the decision of the Honourable
Apex Court, we are of the view that the witnesses have spoken truth that the
accused demanded money from P.W.2 and having failed to get money, the accused
kidnapped the boy and murdered him. Even P.Ws.4 and 5, mother and grand mother
spoke against the accused. When P.W.4 spoke about his son her eyes were filled
with tears. There is no reason for P.Ws.4 and 5 to spoke against their kith and
kin. So, from the evidence of P.Ws.4 and 5 it is clear that the accused
demanded money from P.W.2 and he has motive to murder the victim. There is no
reason to reject the evidence of P.Ws.4 and 5. On careful consideration of the
evidence on record, we are of the view that the motive against the accused is
well established.
19. Learned counsel for the appellant relied on the decision of the
Honourable Apex Court in Bujji @ Subramani & others v. State reported in 2009-2-
L.W. (Crl.) 791 and argued that merely establishing motive is not sufficient to
convict the accused. No doubt motive is not sufficient to convict the accused,
but in this case there are circumstances pinpointing the accused in the crime.
20. Learned counsel for the appellant relied on the decision of this Court
in Kalaiyarasi & another v. State reported in 2009-2-L.W. (Crl.) 797 and argued
that suspicion however strong cannot take the place of proof and in the absence
of incriminating material or circumstance. It is true that mere suspicion
cannot be ground to hold the guilty of the offence in cases of circumstantial
evidence.
21. To prove the last seen theory, the prosecution relied on the evidence
of P.Ws.9, 10, 20 and 21. P.W.9 is the close relative of the accused and P.W.2.
On the fateful day, ie., on 21.03.2005 at about 6.30 P.M., he saw the accused
with the boy. When the accused questioned by P.W.9, the accused told him that
he was proceeding towards Sattur and the boy is the son of P.W.2 Jafar Ali.
P.W.20 is the headmistress of the Al-Ameen Muslim Higher Secondary School in
which the boy studied. According to her, the deceased boy attended the school
on 21.03.2005 and he left the school at about 5.30 P.M. She deposed that nobody
came into the school to take the deceased boy from the school. No doubt P.W.20,
on that day saw the victim at 5.30 P.M. Her evidence would establish that the
victim boy was in the school on 21.03.2005 at 5.30 P.M.
22. Learned counsel for the appellant submitted that the attendance
register was not produced to show that the deceased attended the school on that
day. So, there is possibility of the boy not attending the school on
21.03.2005. P.W.20 asserted that he saw the deceased at 5.30 P.M. In such a
case, though the attendance register was not produced, the evidence of P.W.20
would show that the boy was in the school at 5.30 P.M. P.W.20, Headmistress
could see the boy inside the school. P.W.10, Watchman could see the boy outside
the building. So, there is possibility of watchman to see the boy along with
the accused outside the school. Nothing was elicited from P.W.10 to reject his
evidence that he saw the boy along with the accused on 21.03.2005.
23. Further, the last seen theory was established by P.W.21, the classmate
of the deceased boy. The trial Court after putting him questions as to whether
the boy was competent to depose evidence, the Court satisfied itself that he was
competent to depose evidence. His evidence would show that the accused was
found with the victim. A thorough scrutiny of evidence would show that the boy
is speaking the truth and his evidence is trustworthy. Nothing was elicited to
reject his evidence. So, the evidence of P.Ws.9, 10, 20 and 21 would prove the
last seen theory. It is for the accused to explain what happened to the victim
subsequently.
24. The body of the victim was taken to the Government Hospital for
conducting autopsy. Relying on the evidence of the doctor, learned counsel for
the appellant argued that the death was not happened as claimed by the
prosecution. It is true that P.W.8, Dr. Jawahar deposed in both ways that the
deceased would have died due to throttling of the neck of the deceased by other
person and death would have appeared due to drowning. Further, the diatom test
was not successful. As per Modi’s Medical Jurisprudence and Toxicology diatom
would be available in fresh or sea water. So the diatom test is not helpful for
both the prosecution side as well as the defence side.
25. Learned counsel for the appellant relied on the decision of the
Honourable Apex Court in K.P. Rao v. Public Prosecutor, A.P. reported in (1975)
2 Supreme Court Cases 570 and argued that after the death when the body was
thrown into the water, and has remained there some time, water, fine particles
of sand, mud weeds, etc, may pass through the windpipe into the large air-tubes.
In the above said case, Taylor’s view was expressed by the Honourable Apex
Court, but in this case there was no particles from the body of the victim. The
bones were examined by P.W.24 Dr.Meyyalagan. He opined that the injuries caused
to the Hyoid bone were postmortem and not ante-mortem. For that he is not
competent, because he has not done the postmortem. On careful consideration of
the evidence of both the doctors, it is clear the death was not due to drowning.
Both of them are not able to strengthen their views. Mohammed Ismail was dead.
The death is not natural. The death occurred due to the vengeance of the
accused against P.W.2. He had intention to commit murder of the deceased and to
carry out the intention, the deceased boy was taken away by the accused from the
school and Mohamed Ismail was murdered.
26. Learned counsel for the appellants argued that there are lot of
discrepancies in the evidence of the prosecution witnesses. According to him,
the boy was not searched by the mother in the school. The evidence of P.W.3
would show that she searched for the boy till 6.30 P.M. and thereafter she went
to the school at 7.30 P.M. Naturally, the mother would be in an annoyed mood,
when the boy was not returned from school in time. Then, she made search for
the boy here and there and then she went to the house of the accused along with
P.W.2 and enquired about the boy and the accused from P.Ws.4 and 6. They stayed
in their house and during night they enquired their relatives at Tenkasi and
Thiruvarur through phone. On the next day, they went to the Aruppukottai Police
Station to speak about the missing of the boy.
27. Further, there is evidence to show that the accused was in a nervous
mood after the incident. This contact of the accused also would show that the
accused after the commission of death went to his house and demanded money from
his mother P.W.4. P.W.4 deposed as follows:
“md;W ,ut[ 8 1/2 kzpastpy; tpah;f;ftpUtpUf;f gjw;wj;Jld; tPl;ow;F te;jhh;.
vd;dg;gh ,g;go gjl;lkha; te;Js;shna vd;W ehd; mtdplk; nfl;nld;. ehd; nrh;j;J
itj;jpUe;j U.400/- cd;dplk; cs;sJ bfhL vd;W vd;dplk; U.400/-I nfl;L
th’;fpf;bfhz;L tpUJefUf;F brd;Wtpl;lhd;.”
So after committing the offence the accused has left the place.
28. Learned counsel for the appellant argued that after the incident P.W.2
did not attempt to give complaint and nothing was stated in his evidence about
the examination of the boy. No doubt, the evidence would show that the parents
searched for the boy, went to their relatives house and stayed there and after
searching for the boy they went to Aruppukottai Police Station they were asked
to go over to Virudhunagar to identify the body. When P.W.2 went to the police
station to lodge a complaint, it is the duty of the police to receive complaint,
on the other hand they directed P.W.2 to go over to Virudhunagar to identify the
body. So, the claim of the appellant that the P.W.2 did not try to give the
complaint falls to ground.
29. Learned counsel for the appellant argued vehemently that the father
alone went to the hospital to identify the body of the deceased, but the mother
did not went to the hospital. So, the stand of both went to the hospital is not
correct. A careful scrutiny of the evidence of P.Ws.2 and 3 would show that
both of them went to the hospital and identified the boy. This was confirmed by
the evidence of P.W.25, investigation Officer.
30. Learned counsel for the appellant further argued that there is nothing
stated in Ex.P.1 complaint about the intention of the accused. The complaint
was not given by P.W.2. On the other hand the complaint was given by P.W.1,
V.A.O. of Sulakkarai, who went to the scene of occurrence on receiving
information from the Panchayat President. He cannot know the intention of the
accused. So, he gave the complaint that a body was found in the well. So, the
intention of the accused is not found in the F.I.R. is not a ground to reject
the case of the prosecution.
31. Further, the learned counsel for the appellant submitted that P.W.1
sent the complaint through P.W.15, Karuppasamy, who was not the employee of the
Panchayat. So, the prosecution case is false. P.W.15 deposed that his father
was a Thalayari. So, he was waiting for appointment on compassionate ground.
So, he was assisting the V.A.O. whenever he is in need. Naturally when a person
is in need a job on compassionate ground, will do the work given by the officer
in order to get the appointment at the earliest point of time. So, he used to
assist V.A.O. whenever he asked. So, the V.A.O. sent the complaint to the
Police Station through P.W.15, Karuppasamy, the job aspirant. Further, P.W.25
deposed that the V.A.O. sent the complaint through Tahalayari Karuppasamy, but
he was not aware whether Karuppasamy was appointed as Thalayari or not. Mere
sending of the complaint by the V.A.O. through somebody is not a ground to
reject the case of the prosecution.
32. Learned counsel for the appellant also submitted that the accused
raised doubt about the arrest of the accused and the counsel argued that the
accused was taken from Thiruvarur Police station. From the statements Exs.P.10
and P.11 recorded from P.Ws.4 and 5, recorded by P.W.16, Muthusaratha, the then
Judicial Magistrate No.1, Virdhungar would state that the accused was brought
from Thiruvarur Police Station. But, it was stated by P.Ws.14 and 15 that the
accused was arrested in front of Virudhunagar Collector Office Bus Stand. So,
the evidence of P.Ws.14 and 17 are not helpful to the prosecution. No doubt
there is some doubt as to the arrest of the accused, but that was not a ground
to reject the case of the prosecution in a brutal murder.
33. On careful consideration of the evidence on record, this Court is of
the view that the commission or omission on the part of the investigation
officer is not a ground to reject the cogent evidence on record. On careful
analysis of the evidence on record, we are of the view that the accused demanded
money from P.W.2 for his treatment, but that was not accepted by P.W.2. So, he
had intention to kidnap the deceased and to commit murder on him and he
kidnapped the victim in order to murder him, which is punishable under Section
364 I.P.C. and he committed murder, which is punishable under Section 302 I.P.C.
and thereafter he committed disappearance of the evidence by keeping the body
into the well, which is punishable under Section 201 I.P.C. So, we find no
reason to differ from the finding of the Court below. There is no merit in the
appeal and the same is liable to be dismissed.
34. Accordingly, the Criminal Appeal is dismissed.
sj
To
1. The Principal District and Sessions Judge, Virudhunagar.
2. The Additional District and Sessions Judge,
(Fast Track Court), Virudhunagar.
3. The Judicial Magistrate, NO. II, Virudhunagar.
4. The Superintendent of Central Prison, Madurai.
( With Duplicate Copies, to serve on the accused)
5.The Inspector of Police,
Sulakovai Police Station, Virudhunagar District.
6.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.