{"id":190252,"date":"2009-08-25T00:00:00","date_gmt":"2009-08-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/k-nijamytheen-vs-state-rep-by-the-inspector-of-on-25-august-2009"},"modified":"2017-01-13T23:13:35","modified_gmt":"2017-01-13T17:43:35","slug":"k-nijamytheen-vs-state-rep-by-the-inspector-of-on-25-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/k-nijamytheen-vs-state-rep-by-the-inspector-of-on-25-august-2009","title":{"rendered":"K.Nijamytheen vs State Rep. By:: The Inspector Of … on 25 August, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
K.Nijamytheen vs State Rep. By:: The Inspector Of … on 25 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED:25\/08\/2009\n\nCORAM\nTHE HONOURABLE MR. JUSTICE P.MURGESEN\nand\nTHE HONOURABLE MR. JUSTICE C.S.KARNAN\n\nCRL.A.(MD)No.401 OF 2008\n\nK.Nijamytheen\t\t         \t\t\t... Appellant\/Sole Accused\n\nVs\n\nState rep. By:: The Inspector of Police,\nSulakovai Police Station,\nVirudhunagar District.     \t\t\t\t... Respondent\/Complainant\n\n\tCriminal Appeal filed under Section 374(2) Cr.P.C against the judgment of\nconviction and sentence passed by the learned Additional District and Sessions\nJudge (Fast Track Court), Virudhunagar, dated 05.07.2007 made in S.C.No.138 of\n2005.\n\n!For Appellant  ... Mr.E.Somasundaram\n^For Respondent ... Mr.P.N.Pandidurai, Government Advocate (Crl.Side)\n\n:JUDGMENT\n<\/pre>\n
  \tThis Criminal Appeal is directed against the conviction and sentence
\npassed by the learned Additional District and Sessions Judge (Fast Track Court),
\nVirudhunagar, dated 05.07.2007, made in S.C.No.138 of 2005, convicting the
\nappellant\/accused under Sections 302, 364 and 201 I.P.C. and sentenced him to
\nundergo rigorous imprisonment for three years for the offence under Section 364
\nI.P.C., to undergo life imprisonment for the offence under Section 302 I.P.C.
\nand to undergo rigorous imprisonment for one year for the offence under Section
\n201 I.P.C.\n<\/p>\n
\t2.The case of the prosecution briefly stated is as follows:\n<\/p>\n
\ti) The appellant is the accused before the trial Court. P.W.2, Jafer Ali
\nis the resident of  Aruppukottai Kattubava North Street and his wife is P.W.3,
\nBakkir Meera. P.W.4, Kaliya Begam is the sister of P.W.2.  P.W.5, Noorjahan is
\nthe mother of P.Ws.2 and  4.  P.W.9, Jahir Hussain is the another close relative
\nof P.W.2. The accused is the grand son of P.W.5, Noorjahan through her daughter
\nP.W.4, Kaliya Begam.  The deceased Mohammed Ismail is the son of P.Ws.2 and 3.
\nHe was studying in Al-Ameen Muslim Higher Secondary School at Aruppukottai.
\nP.W.20 is the Headmistress and P.W.10 is the watchman of the said school.\n<\/p>\n
\t(ii) The accused and his grand-mother P.W.5, Noorjahan sustained injuries
\ndue to the fall of stone from the house roof and the accused was not able to get
\ncompletely cured. So, he demanded Rs.15,000\/- from P.W.2.  P.W.2 is not a rich
\nman, so he refused to handover Rs.15,000\/- to him.  P.W.21 is the classmate of
\nthe deceased boy.  On the fateful day, ie., on 21.03.2005, the deceased boy went
\nto the school, but he did not return.\n<\/p>\n
\t(iii) On 25.03.2005, P.W.1, Thirumaran, V.A.O of Sulakkarai has received
\nan information from the Panchayat President that a dead body of a boy was found
\nin an unprotected well situated opposite to the V.T.Mill, Sulakkarai.  Then, he
\nwent to the scene of occurrence and sent a complaint through P.W.15,
\nKaruppasamy.\n<\/p>\n
\t(iv) The complaint was received by P.W.19, Dhanasekaran, Sub-Inspector of
\nPolice, Virudhunagar Rural Police Station was also the incharge of Sulakkarai
\nPolice Station. On 23.03.2005, at about 9.00 A.M., he received Ex.P.1, complaint
\nfrom P.W.15, Karuppasamy and registered a case in Crime No.94 of 2005 under
\nSection 174 of Cr.P.C.  Ex.P.13 is the printed F.I.R.\n<\/p>\n
\t(v) P.W.25, Nagarajan, Inspector of police, took up the case for
\ninvestigation on the instruction of the Deputy Superintendent of Police,
\nVirudhunagar Town.  He sent for the Fingerprint Expert and Scientific Assistant
\nand visited the scene of occurrence in the presence of P.W.12, Seeni and P.W.13,
\nPalaniappan and prepared Ex.P.6 Observation Mahazar and Ex.P.29, Rough Sketch.
\nHe also sent intimation to the Fire Service people and also to the photographer.
\nAfter the body was taken from the well he recorded the fingerprints of the body
\nand sent the body to the Government Hospital through constable with Ex.P.27,
\nrequisition letter to conduct autopsy.  P.W.18, Head Constable Sikkanthar Ali
\nwas also present at the time of examination of the body.  Then, P.W.25 sent
\ninformation about the death of the boy to all the police stations and Muslim
\nschools.\n<\/p>\n
\t(vi) On 23.03.2005 at about 2.30 P.M., P.Ws.2 and 3 came to the Government
\nHospital and identified the body as that of their son. Then P.W.25, conducted
\ninquest over the body of the deceased in the presence of the panchayatars.  At
\nthat time, P.W.18, Head Constable Sikkanthar Ali was present.  Ex.P.26 is the
\nInquest Report.  P.W.25 requested the doctor who conducted Postmortem to
\npreserve Viscera.  Then, he examined the witnesses and recorded their
\nstatements.\n<\/p>\n
\t(vii) On 24.03.2005, autopsy was conducted by P.W.8, Dr.Jawahar and he
\nfound the following:\n<\/p>\n
\t“No external injuries.  Thorax well formed.  Hands empty.  Abdomen unform
\nin size.\n<\/p>\n
\tOpening of Thorax fracture ribs left chest 6 to 12.  Heart 300 gms c\/s
\ncongested.  Lungs 550 grams each c\/s congested cut piece float in water over
\nbubbles Hyoid bone – Broken Trachea.  No mud seen Stomach – empty.  Liver 1500
\ngms. c\/s congested.  Spleen – decomposed.  Kidneys – 40 gms each decomposed.
\nIntestines distended with gas.  Bladder – empty.  No fracture pelvis of spinal
\ncard.  Skull set for superimposition.”\n<\/p>\n
After conducting autopsy he issued Ex.P.5, Post-mortem Certificate. Under
\nEx.P.4, he opined that the deceased would appear to have died of Asphyxia due to
\ndrowning 3 to 4 days prior to autopsy.\n<\/p>\n
\t(viii) On 24.03.2005, P.W.25 altered the F.I.R. into one under Section 364
\nand 302 I.P.C. and sent Express Report to the Judicial Magistrate concerned.
\nEx.P.28 is the Express Report. P.W.18,  Head Constable Sikkanthar Ali was
\npresent when the First Information Report was altered.  Then, P.W.18 took
\nviscera to the forensic laboratory and also handed over the parts of the body
\nafter the postmortem was conducted.\n<\/p>\n
\t(ix) On 25.03.2005, P.W.25 examined P.W.20, Jalsa Begam, Headmistress of
\nAl-Ameen School, P.W.10, Samsutheen, Watchman of the said school and P.W.21,
\nMohammed Asif classmate of the deceased and recorded their statements. On
\n04.04.2005, he obtained the photograph of the deceased from his father and sent
\nthe same to Expert through Court to conduct Super Imposition Test.\n<\/p>\n
\t(x) P.W.23, Alarmelmangai, Scientific Assistant, Forensic Lab, Madras
\nconducted Super Imposition Test and gave report that the skull could have
\nbelonged to the child seen in the photograph.\n<\/p>\n
\t(xi) Then, investigation was conducted by P.W.26.  He arrested the accused
\non 10.04.2005 at 5.00 P.M. in front of the Collector’s Office Bus Stop in the
\npresence of P.W.14, Govindaraj and P.W.15, Karuppasamy and enquired and recorded
\nthe confession statement of the accused.  Exs.P.7 and 8 are the signatures of
\nP.Ws.14 and 15 in the confession statement of the accused.  He examined P.W.11,
\nNarayanasamy, P.W.6, Dr. Subburaj, P.W.9, Jahir Hussain, P.W.14, Govindaraj and
\nP.W.15 Karuppasamy and recorded their statements.   He sent a requisition to the
\nJudicial Magistrate to record the statements of P.W.4, Kaliya Begam and P.W.5,
\nNoorjahan under Ex.P.9 and their statements were recorded under Exs.P.10 and 11
\nby P.W.16, Judicial Magistrate.\n<\/p>\n
\t(xii) He also sent a requisition to the Judicial Magistrate, P.W.22 to
\nrecord the statement of accused.  But the accused did not give any confession
\nand it was recorded by P.W.22.\n<\/p>\n
\t(xiii) Then, P.W.26 was transferred.  Then, the investigation was
\nconducted by P.W.27, Ruthra Sekaran, Inspector of Police.  On 18.07.2005, he
\nexamined P.W.7, Dr.Mahalakshmi and P.W.8, Dr. Jawahar and recorded their
\nstatements.  Then, he was transferred and then, the investigation was conducted
\nby P.W.28, Selvaraj, Inspector of Police.\n<\/p>\n
\t(xiv) On 02.08.2005, P.W.28 examined P.W.1, Jafer Ali, P.W.2, Bakkir
\nMeera, Allabaksh, Kader Maideen, Sulthan Beevi, P.W.10 Samsutheen, P.W.20, Jalsa
\nBegam and Sikkanthar and recorded their statements.  On 11.08.2005, he completed
\nthe investigation and filed charge sheet under Sections 364, 302 and 201 of
\nI.P.C. against the accused.\n<\/p>\n
\t3. Before the trial Court, P.Ws.1 to 28 were examined and Exs.P.1 to P.30
\nand M.Os.1 to 3 were marked. All the incriminating pieces of evidence let in by
\nthe prosecution witnesses were put to the accused under Section 313(1) of the
\nCode of Criminal Procedure questioning the accused, the accused denied the same
\nas false.  There was no oral or documentary evidence adduced on the side of the
\naccused.\n<\/p>\n
\t4. On consideration of the evidence on record, learned Additional District
\nand Sessions Judge (Fast Track Court), Virudhunagar, found the accused guilty
\nunder Sections 302, 364 and 201 I.P.C. and sentenced him to undergo rigorous
\nimprisonment for three years for the offence under Section 364 I.P.C., to
\nundergo life imprisonment for the offence under Section 302 I.P.C. and to
\nundergo rigorous imprisonment for one year for the offence under Section 201
\nI.P.C.\n<\/p>\n
\t5. Challenging the judgment of the learned  Additional District and
\nSessions Judge (Fast Track Court), Virudhunagar, this appeal has been filed by
\nthe appellant\/accused.\n<\/p>\n
\t6. Point for consideration is:\n<\/p>\n
\t“Whether the accused\/appellant could be held guilty under Sections 302,
\n364 and 201 I.P.C.”\n<\/p>\n
\t7. Point: P.W.2 is the resident of Aruppukottai Kattubava North Street.
\nP.W.3 is his wife.  They are blessed with 3 daughters and one son.  The name of
\ntheir son is Mohammed Ismail.  P.W.4 is the sister of P.W.2.  P.W.5 is the
\nmother of P.W.2 and P.W.4.  P.W.9, Jahir Hussain is the close relative of P.W.2.
\nThe boy Mohammed Ismail was aged about 11 years and was studying 7th standard in
\nAruppukkottai Al-Ameen Muslim Higher Secondary School.  P.W.20 is the
\nHeadmistress of the school in which the boy studied.  P.W.10 is the watchman of
\nthe school.  P.W.21 is the classmate of Mohammed Ismail.  Further, the accused
\nis the son of P.W.4 Kaliya Begam and grand son of P.W.5 Noorjahan.  The accused
\nwas working under P.W.11 Narayanasamy.  The accused sustained fracture.  He was
\nnot able to get the complete treatment.  So, he demanded Rs.15,000\/- from his
\nuncle P.W.2 Jafer Ali.  P.W.2 is not a rich man and he was unable to pay the
\nsaid amount.\n<\/p>\n
\t8. On the fateful day, ie., on 21.03.2005, deceased Mohammed Ismail went
\nto the school, but he did not return.  The body of the boy was found on
\n23.03.2005 in an unprotected well situated opposite to the V.T. Mill,
\nSulakkarai.  On receiving the information from the Panchayat President, P.W.1,
\nthe V.A.O. of Sulakkari went to the scene of occurrence and found the dead body
\nwearing green colour half pant and while colour half shirt.  Since, he was not
\nable to identify the body, he sent a complaint to the Police through P.W.15,
\nKaruppasamy.\n<\/p>\n
\t9. Then the wheel of the Criminal Law was set in motion.  P.W.19, received
\nthe complaint of V.A.O. and on the basis of the complaint he registered a case
\nin Crime No.94 of 2004 under Section 174 Cr.P.C.  P.W.25, took up the case for
\ninvestigation and went to the place of occurrence.  He had taken steps to
\nrecover the dead body found in the well.  He sent information about the dead
\nbody of the boy to all the Police Stations and Muslim Schools.  On 23.03.2005,
\nat about 2.30 P.Ws.1 and 2 came to the hospital and identified the body as their
\nson. On 24.03.2005, P.W.8 Doctor Jawahar conducted autopsy on the body of
\nMohammed Ismail and opined that the deceased would appear to have died due to
\nthe fracture of the hyoid bone and due to asphyxia just 3 to 4 days prior to the
\nautopsy. On the basis of his statement, P.W.25 altered the F.I.R. into one under
\nSections 364 and 302 I.P.C.  He also requested Thasildar, Aruppukkottai to
\nsubmit the F.I.R. registered under Section 174 of Cr.P.C. to the concerned
\nCourt.\n<\/p>\n
\t10. In order to ascertain whether the deceased is the son of P.Ws.2 and 3,
\nthe Superimposition test was conducted by P.W.23, Alarmelmangal, Scientific
\nAssistant, Forensic Lab, Madras.  She conducted Superimposition Test
\nscientifically and gave a report that the skull belonged to the boy shown in the
\nphotograph.  So, the identification of the boy is ascertained and proved.\n<\/p>\n
\t11.  P.W.26, Rangarajan took the case for further investigation and
\narrested the accused in front of the  Collector’s Officer, Virudhunagar and
\nrecorded the confession statement given by the accused in the presence of
\nwitnesses and send the accused to Judicial custody.  Thereafter, P.W.17 Ruthra
\nSekaran took-up the case for further investigation and examined Dr. Meyyalagan
\nand Dr.Jawahar and recorded their statements.  Finally, the investigation was
\ndone up P.w.28, Selvaraj.  After completing the investigation he laid charge
\nsheet against the accused under Sections 364, 302 and 201 I.P.C.\n<\/p>\n
\t12. Learned counsel for the appellant relied on decision of the Honourable
\nApex Court in Syed Hakkim and Anr. v. State reported in 2009-2-L.W. (Crl.) 768,
\nwherein it is pointed out by the Honourable Apex Court that five conditions must
\nbe fulfilled before conviction in the case of circumstantial evidence, which is
\nas follows:\n<\/p>\n
\t“(1) the circumstances from which the conclusion of guilt is to be drawn
\nshould be fully established.  The circumstances concerned ‘must’ or ‘should’ and
\nnot ‘may be’ established;\n<\/p>\n
\t(2) the facts so established should be consistent only with the hypothesis
\nof the guilt of the accused, that is to say, they should not be explainable on
\nany other hypothesis except that the accused is guilty;
\n\t(3) the circumstances should be of a conclusive nature and tendency;
\n\t(4) they should exclude every possible hypothesis except the one to be
\nproved; and
\n\t(5) there must be a chain of evidence so complete as not to leave any
\nreasonable ground for the conclusion consistent with the innocence of the
\naccused and must show that in all human probability the act must have been done
\nby the accused.”\n<\/p>\n
\t13. It is the stand of the prosecution that having failed to get money for
\nhis treatment from P.W.2, the accused kidnapped and killed P.W.2’s son Mohammed
\nIsmail.  Learned counsel for the appellant argued that there is no motive for
\nthe accused to kill the victim.  Further, P.W.2 has stated that the accused was
\ncompletely recovered. So, there is no necessity for the accused to get money for
\ntreatment from P.W.2.  No doubt, P.W.2 has stated that the accused was
\ncompletely cured.\n<\/p>\n
\t14. P.W.5 is the grand mother of the accused.  She deposed that there is a
\nmalunion of the bones of the accused and he was not completely cured.
\nAbsolutely, the grand mother is not having grievance against the accused.
\nSince, the accused was not completely cured, he demanded money from P.W.2.
\nP.W.2 is not a qualified man to spoke about whether the fracture sustained by
\nthe accused was cured or not.  The grand mother of the accused deposed that both
\nherself and her grand son sustained injuries and the accused was not recovered
\ncompletely.  Her version was confirmed by P.W.9, Jahir Hussain.  The evidence of
\nP.W.9 would show that the accused informed him that he must take treatment in a
\nprivate hospital and he need Rs.10,000\/- to Rs.15,000\/-.\n<\/p>\n
\t15. Further, learned counsel for the appellant would point out that P.W.9
\ndeposed that because of his brother’s request he is deposing before the Court as
\nwitness. But, P.W.9 is also a relative of the accused. Nothing was elicited from
\nP.W.9 to show that he is not a trustworthy witness. So, from the evidence of
\nP.W.9, it was established that the accused was in need of money for taking
\ntreatment.  When he approached P.W.2, it was rejected, so he became unhappy and
\nangry due to the denial of amount from him.  The evidence of P.W.5 also would
\nshow that Dr.Subburaj demanded Rs.15,000\/- for giving treatment.  So, the
\naccused demanded the amount from P.Ws.2 and 3, but they were not able to pay the
\namount for the treatment of the accused, so he took vengeance against P.W.2.
\nThis was was spoken by P.W.5.  P.W.4, the mother of the accused has also aware
\nof the demand of the money from P.W.2.\n<\/p>\n
\t16. Further, the learned counsel for the appellant argued that though
\nwitnesses spoke before the Court that the accused demanded Rs.15,000\/- from
\nP.W.2, but it is not stated by the witnesses to the Inspector of Police. But the
\nperusal of the statements recorded under section 161 Cr.P.C. from the witnesses
\nwould show that they have spoken about the demand of the accused to P.W.2 to pay
\nRs.15,000\/-.  So, the claim of the appellant that the witnesses have not spoken
\nabout the demand of Rs.15,000\/- from P.W.2 by the accused to the Investigation
\nOfficer is not correct.\n<\/p>\n
\t17. An attempt was made by the Investigation Officer by examining P.W.6
\nSubburaj that the accused approached Dr.Subburaj for treatment and he advised
\nthe accused that for taking treatment in the private hospital and he has to
\nspend more money.  P.W.6 turned hostile and he did not support the case of the
\nprosecution.  P.W.6 stated that he is not able to remember whether he advised
\nthe accused to get treatment at private hospital or not.  But, it is true that
\npeople opt for getting treatment in private hospital, where they can get better
\ntreatment than the Government Hospital.  Though he turned hostile, evidence on
\nrecord would show that the accused was not completely cured.\n<\/p>\n
\t18. Learned counsel for the appellant relied on the decision in  Arun
\nBhakta @ Thulu v. State of West Bengal reported in 2009-1-L.W. (Crl.) 573 and
\nargued that it would be unsafe to convict the accused if there is diametrically
\nopposite version. Further,  he would submit that the witnesses spoke so many
\nthings before the Court, which were not spoken before the investigation officer.
\nOn careful consideration of the evidence meticulously, it is clear that the
\nwitnesses have made some exaggeration. As per the decision of the Honourable
\nApex Court, this Court has to remove the chaff from the grains to found the
\ntruth.  Testing the case on hand in the light of the decision of the Honourable
\nApex Court, we are of the view that the witnesses have spoken truth that the
\naccused demanded money from P.W.2 and having failed to get money, the accused
\nkidnapped the boy and murdered him.  Even P.Ws.4 and 5, mother and grand mother
\nspoke against the accused.  When P.W.4 spoke about his son her eyes were filled
\nwith tears.  There is no reason for P.Ws.4 and 5 to spoke against their kith and
\nkin.  So, from the evidence of P.Ws.4 and 5 it is clear that the accused
\ndemanded money from P.W.2 and he has motive to murder the victim.  There is no
\nreason to reject the evidence of P.Ws.4 and 5. On careful consideration of the
\nevidence on record, we are of the view that the motive against the accused is
\nwell established.\n<\/p>\n
\t19. Learned counsel for the appellant relied on the decision of the
\nHonourable Apex Court in Bujji @ Subramani & others v. State reported in 2009-2-
\nL.W. (Crl.) 791 and argued that merely establishing motive is not sufficient to
\nconvict the accused.  No doubt motive is not sufficient to convict the accused,
\nbut in this case there are circumstances pinpointing the accused in the crime.\n<\/p>\n
\t20. Learned counsel for the appellant relied on the decision of this Court
\nin Kalaiyarasi & another v. State reported in 2009-2-L.W. (Crl.) 797 and argued
\nthat suspicion however strong cannot take the place of proof and in the absence
\nof incriminating material or circumstance.  It is true that mere suspicion
\ncannot be ground to hold the guilty of the offence in cases of circumstantial
\nevidence.\n<\/p>\n
\t21. To prove the last seen theory, the prosecution relied on the evidence
\nof P.Ws.9, 10, 20 and 21.  P.W.9 is the close relative of the accused and P.W.2.
\nOn the fateful day, ie., on 21.03.2005 at about 6.30 P.M., he saw the accused
\nwith the boy. When the accused  questioned by P.W.9, the accused told him that
\nhe was proceeding towards Sattur and the boy is the son of P.W.2 Jafar Ali.
\nP.W.20 is the headmistress of the Al-Ameen Muslim Higher Secondary School in
\nwhich the boy studied.  According to her, the deceased boy attended the school
\non 21.03.2005 and he left the school at about 5.30 P.M.  She deposed that nobody
\ncame into the school to take the deceased boy from the school.  No doubt P.W.20,
\non that day saw the victim at 5.30 P.M. Her evidence would establish that the
\nvictim boy was in the school on 21.03.2005 at 5.30 P.M.\n<\/p>\n
\t22. Learned counsel for the appellant submitted that the attendance
\nregister was not produced to show that the deceased attended the school on that
\nday.  So, there is possibility of the boy not attending the school on
\n21.03.2005. P.W.20 asserted that he saw the deceased at 5.30 P.M.  In such a
\ncase, though the attendance register was not produced, the evidence of P.W.20
\nwould show that the boy was in the school at 5.30 P.M.  P.W.20, Headmistress
\ncould see the boy inside the school.  P.W.10, Watchman could see the boy outside
\nthe building.  So, there is possibility of watchman to see the boy along with
\nthe accused outside the school.  Nothing was elicited from P.W.10 to reject his
\nevidence that he saw the boy along with the accused on 21.03.2005.\n<\/p>\n
\t23. Further, the last seen theory was established by P.W.21, the classmate
\nof the deceased boy.  The trial Court after putting him questions as to whether
\nthe boy was competent to depose evidence, the Court satisfied itself that he was
\ncompetent to depose evidence.  His evidence would show that the accused was
\nfound with the victim.  A thorough scrutiny of evidence would show that the boy
\nis speaking the truth and his evidence is trustworthy.  Nothing was elicited to
\nreject his evidence.  So, the evidence of P.Ws.9, 10, 20 and 21 would prove the
\nlast seen theory.  It is for the accused to explain what happened to the victim
\nsubsequently.\n<\/p>\n
\t24. The body of the victim was taken to the Government Hospital for
\nconducting autopsy.  Relying on the evidence of the doctor, learned counsel for
\nthe appellant argued that the death was not happened as claimed by the
\nprosecution.  It is true that P.W.8, Dr. Jawahar deposed in both ways that the
\ndeceased would have died due to throttling of the neck of the deceased  by other
\nperson and death would have appeared due to drowning.  Further, the diatom test
\nwas not successful. As per Modi’s Medical Jurisprudence and Toxicology diatom
\nwould be available in fresh or sea water.  So the diatom test is not helpful for
\nboth the prosecution side as well as the defence side.\n<\/p>\n
\t25. Learned counsel for the appellant relied on the decision of the
\nHonourable Apex Court in K.P. Rao v. Public Prosecutor, A.P.<\/a> reported in (1975)
\n2 Supreme Court Cases 570 and argued that after the death when the body was
\nthrown into the water, and has remained there some time, water, fine particles
\nof sand, mud weeds, etc, may pass through the windpipe into the large air-tubes.
\nIn the above said case, Taylor’s view was expressed by the Honourable Apex
\nCourt, but in this case there was no particles from the body of the victim. The
\nbones were examined by P.W.24 Dr.Meyyalagan.  He opined that the injuries caused
\nto the Hyoid bone were postmortem and not ante-mortem.  For that he is not
\ncompetent, because he has not done the postmortem.  On careful consideration of
\nthe evidence of both the doctors, it is clear the death was not due to drowning.
\nBoth of them are not able to strengthen their views.  Mohammed Ismail was dead.
\nThe death is not natural.  The death occurred due to the vengeance of the
\naccused against P.W.2.  He had intention to commit murder of the deceased and to
\ncarry out the intention, the deceased boy was taken away by the accused from the
\nschool and Mohamed Ismail was murdered.\n<\/p>\n
\t26. Learned counsel for the appellants argued that there are lot of
\ndiscrepancies in the evidence of the prosecution witnesses.  According to him,
\nthe boy was not searched by the mother in the school.  The evidence of P.W.3
\nwould show that she searched for the boy till 6.30 P.M. and thereafter she went
\nto the school at 7.30 P.M.  Naturally, the mother would be in an annoyed mood,
\nwhen the boy was not returned from school in time.  Then, she made search for
\nthe boy here and there and then she went to the house of the accused along with
\nP.W.2 and enquired about the boy and the accused from P.Ws.4 and 6.  They stayed
\nin their house and during night they enquired their relatives at Tenkasi and
\nThiruvarur through phone.  On the next day, they went to the Aruppukottai Police
\nStation to speak about the missing of the boy.\n<\/p>\n
\t27. Further, there is evidence to show that the accused was in a nervous
\nmood after the incident.  This contact of the accused also would show that the
\naccused after the commission of death went to his house and demanded money from
\nhis mother P.W.4.  P.W.4 deposed as follows:\n<\/p>\n
\t“md;W ,ut[ 8 1\/2 kzpastpy; tpah;f;ftpUtpUf;f gjw;wj;Jld; tPl;ow;F te;jhh;.
\nvd;dg;gh ,g;go gjl;lkha; te;Js;shna vd;W ehd; mtdplk; nfl;nld;.  ehd; nrh;j;J
\nitj;jpUe;j U.400\/- cd;dplk; cs;sJ bfhL vd;W vd;dplk; U.400\/-I nfl;L
\nth’;fpf;bfhz;L tpUJefUf;F brd;Wtpl;lhd;.”\n<\/p>\n
So after committing the offence the accused has left the place.\n<\/p>\n
\t28. Learned counsel for the appellant argued that after the incident P.W.2
\ndid not attempt to give complaint and nothing was stated in his evidence about
\nthe examination of the boy.  No doubt, the evidence would show that the parents
\nsearched for the boy, went to their relatives house and stayed there and after
\nsearching for the boy they went to Aruppukottai Police Station they were asked
\nto go over to Virudhunagar to identify the body.  When P.W.2 went to the police
\nstation to lodge a complaint, it is the duty of the police to receive complaint,
\non the other hand they directed P.W.2 to go over to Virudhunagar to identify the
\nbody.  So, the claim of the appellant that the P.W.2 did not try to give the
\ncomplaint falls to ground.\n<\/p>\n
\t29. Learned counsel for the appellant argued vehemently that the father
\nalone went to the hospital to identify the body of the deceased, but the mother
\ndid not went to the hospital.  So, the stand of both went to the hospital is not
\ncorrect.  A careful scrutiny of the evidence of P.Ws.2 and 3 would show that
\nboth of them went to the hospital and identified the boy.  This was confirmed by
\nthe evidence of P.W.25, investigation Officer.\n<\/p>\n
\t30. Learned counsel for the appellant further argued that there is nothing
\nstated in Ex.P.1 complaint about the intention of the accused.  The complaint
\nwas not given by P.W.2.  On the other hand the complaint was given by P.W.1,
\nV.A.O. of Sulakkarai, who went to the scene of occurrence on receiving
\ninformation from the Panchayat President.  He cannot know the intention of the
\naccused.  So, he gave the complaint that a body was found in the well.  So, the
\nintention of the accused is not found in the F.I.R. is not a ground to reject
\nthe case of the prosecution.\n<\/p>\n
\t31. Further, the learned counsel for the appellant submitted that P.W.1
\nsent the complaint through P.W.15, Karuppasamy, who was not the employee of the
\nPanchayat.  So, the prosecution case is false.  P.W.15 deposed that his father
\nwas a Thalayari.  So, he was waiting for appointment on compassionate ground.
\nSo, he was assisting the V.A.O. whenever he is in need.  Naturally when a person
\nis in need a job on compassionate ground, will do the work given by the officer
\nin order to get the appointment at the earliest point of time.  So, he used to
\nassist V.A.O. whenever he asked.  So, the V.A.O. sent the complaint to the
\nPolice Station through P.W.15, Karuppasamy, the job aspirant.  Further,  P.W.25
\ndeposed that the V.A.O. sent the complaint through Tahalayari Karuppasamy, but
\nhe was not aware whether Karuppasamy was appointed as Thalayari or not. Mere
\nsending of the complaint by the V.A.O. through somebody is not a ground to
\nreject the case of the prosecution.\n<\/p>\n
\t32. Learned counsel for the appellant also submitted that the accused
\nraised doubt about the arrest of the accused and the counsel argued that the
\naccused was taken from Thiruvarur Police station. From the statements Exs.P.10
\nand P.11 recorded from P.Ws.4 and 5, recorded by P.W.16, Muthusaratha, the then
\nJudicial Magistrate No.1, Virdhungar would state that the accused was brought
\nfrom Thiruvarur Police Station.  But, it was stated by P.Ws.14 and 15 that the
\naccused was arrested in front of Virudhunagar Collector Office Bus Stand.  So,
\nthe evidence of P.Ws.14 and 17 are not helpful to the prosecution.  No doubt
\nthere is some doubt as to the arrest of the accused, but that was not a ground
\nto reject the case of the prosecution in a brutal murder.\n<\/p>\n
\t33. On careful consideration of the evidence on record, this Court is of
\nthe view that the commission or omission on the part of the investigation
\nofficer is not a ground to reject the cogent evidence on record.  On careful
\nanalysis of the evidence on record, we are of the view that the accused demanded
\nmoney from P.W.2 for his treatment, but that was not accepted by P.W.2.  So, he
\nhad intention to kidnap the deceased and to commit murder on him and he
\nkidnapped the victim in order to murder him, which is punishable under Section
\n364 I.P.C. and he committed murder, which is punishable under Section 302 I.P.C.
\nand thereafter he committed disappearance of the evidence by keeping the body
\ninto the well, which is punishable under Section 201 I.P.C.  So, we find no
\nreason to differ from the finding of the Court below.  There is no merit in the
\nappeal and the same is liable to be dismissed.\n<\/p>\n
\t34. Accordingly, the Criminal Appeal is dismissed.\n<\/p>\n
sj<\/p>\n
To<\/p>\n
1. The Principal District and Sessions Judge, Virudhunagar.\n<\/p>\n
2. The Additional District and Sessions Judge,
\n  (Fast Track Court), Virudhunagar.\n<\/p>\n
3. The Judicial Magistrate, NO. II, Virudhunagar.\n<\/p>\n
4. The Superintendent of Central Prison, Madurai.\n<\/p>\n
\t( With Duplicate Copies, to serve on the accused)<\/p>\n
5.The Inspector of Police,
\n  Sulakovai Police Station, Virudhunagar District.\n<\/p>\n
6.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court, Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court K.Nijamytheen vs State Rep. By:: The Inspector Of … on 25 August, 2009 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-190252","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nK.Nijamytheen vs State Rep. 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