Criminal Appeal No.637 of 2004 is directed against the verdict of conviction in S.C.No.3/2003 (Velachery PS Cr.No.1047/2001) convicting the 1st accused under Secs.109 r/w 364; 109 r/w 304 (I); 109 r/w 201 IPC and convicting 2nd accused u/s.364; 304 (I); 201 IPC and convicting the accused 3,4 & 6 u/s.364, 304 (I), 201 IPC and convicting the accused 5,8 & 9 u/s.109 r/w 364 IPC and convicting 7th accused u/s.364, 109 r/w 304 (I), 201 IPC

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED  :  19-03-2009

CORAM

THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MRS. JUSTICE R. BANUMATHI

C.A.No.637 and 748 OF 2004
and
M.P.No.164 OF 2008


C.A.No.637/2004

1. P. Rajagopal
S/o. Pitchai

2. Daniel,
S/o. Yovan

3. Karmegam
S/o. Muthu Subramanian

4. Hussain @ Zakir Hussain
S/o. Husal Abdulkhaar

5. Tamil @ Tamil Selvan
S/o. Chinnaiya

6. Kasi @ Kasi Viswanathan
S/o. Venkatachalam

7. Pattu Rajan
S/o. Natarajan

8. Sethu
S/o. Vasudevan

9. Muruganandam
S/o. Arumughm ..  Appellants / Accused

Vs.

The Inspector of Police,
J-7 Velachery Police Station,
Chennai.
Crime No.1047 of 2001. ..  Respondent / Complainant

C.A.No.748/2004

State rep. by Inspector of Police,
(Law and Order),
J-7 Velachery Police Station,
Chennai 42.
Crime No.1047 of 2001. ..  Appellant / Complainant

Vs.

1. P. Rajagopal
S/o. Pitchai

2. Daniel,
S/o. Yovan

3. Karmegam
S/o. Muthu Subramanian

4. Hussain @ Zakir Hussain
S/o. Husal Abdulkhaar

5. Kasi @ Kasi Viswanathan
S/o. Venkatachalam

6. Pattu Rajan
S/o. Natarajan ..  Respondents / Accused
1 to 4, 6 and 7

Crl.A.No.637 of 2004 has been filed under Section 374(2) Cr.P.C., and Crl.A.No.748 of 2004 under Section 378(1) Cr.P.C., against the judgment of the Additional Sessions Judge, Chennai at Poonamallee in S.C.No.3 of 2003 dated 26.4.2004.

For Appellant No.1 :  Mr.B. Sri Ramulu
in C.A.No.637/04     Senior Counsel for
and Respondent No.1      Mr.H. Rajasekar
in C.A.No.748/04

For Appellant Nos. :  Mr. Shanmugha Velayudham
2 to 9 in C.A.637/04   Senior Counsel for
& Respondents 2 to 6   Mr.H. Rajasekar
in C.A.No.748/04

For Appellant :  Mr.K. Raja Illango
in C.A.748/04 &   Public Prosecutor
Respondent in
C.A.No.637/04

In Crl.M.P.No.166/08 : Mr.K. Venkataramani
for Informant           Senior Counsel for
            Mr.M. Devaraj
- - -

 COMMON JUDGMENT

P.K. MISRA, J

Criminal Appeal No.637 of 2004 is directed against the verdict of conviction in S.C.No.3/2003 (Velachery PS Cr.No.1047/2001) convicting the 1st accused under Secs.109 r/w 364; 109 r/w 304 (I); 109 r/w 201 IPC and convicting 2nd accused u/s.364; 304 (I); 201 IPC and convicting the accused 3,4 & 6 u/s.364, 304 (I), 201 IPC and convicting the accused 5,8 & 9 u/s.109 r/w 364 IPC and convicting 7th accused u/s.364, 109 r/w 304 (I), 201 IPC.

2. The prosecution case in brief :-
2.1 As apparent from the FIR in Velachery Police Station Crime No.1047/2001 Ex.P-1, the relevant facts are more or less a sequel or rather in continuation of the incident dated 1.10.2001, which is the subject matter in the connected Crl.Appeal Nos.668 & 669 of 2004, whereunder most of the present appellants have been convicted under Sections 109 r/w.364 and 366-A IPC.  Therefore, as a background material, the substance of the allegations made in connected Criminal Appeal Nos.668 & 669 of 2004, can be recounted.
2.2 The first appellant  in Crl.A.No.637 of 2004, who is Accused No.1 in Velachery Police Station Cr.No.1047/2001, is the Proprietor of several hotels styled as "Hotel Saravana Bhavan.  Either being besotted with P.W.1 or being advised by astrologer, Accused No.1 had evinced keen desire to marry P.W.1 as his third wife, even though P.W.1 was already married to Santhakumar.  Accused No.1 was initially trying to cause disharmony between P.W.1 and her husband by trying to highlight the so called negative aspects or defects of  deceased Santhakumar and at the same time trying to gain the affection of P.W.1 by showering expensive gifts and by helping P.W.1 in many ways including giving money for starting separate travel business.  On 1.10.2001, there was an incident of forcing P.W.1 and her husband to go to Accused No.1, where initially they were confined in a room and thereafter the husband of P.W.1 was assaulted and "asked" to leave P.W.1 to pave way for Accused No.1 to marry P.W.1.  F.I.R. relating to the aforesaid incident was lodged on 12.10.2001 numbered as Velachery P.S. Cr.No.1030/2001, Ex.P-3, which is the subject matter in the connected appeals.  As already indicated, the present case is only a sequel to the said case.
2.3 The FIR relating to the earlier case was lodged on 12.10.2001 and nothing tangible had happened.  At that stage, Accused No.2 Daniel persuaded the the deceased to come to Sai Baba Temple, near V.G.P., in order to discuss the matter with a news reporter.  P.W.1 and her husband had gone to the place where the aforesaid Daniel and other henchmen took P.W.1 and her husband towards Chengleput.  There P.W.1 was forced to travel with Accused No.1 and taken to one Parappadi village for treatment and her husband was taken away by other accused person.  She was  informed that her husband had escaped.  However, subsequently, on 21.10.2001 her husband contacted her and disclosed that "Annachi" (Accused No.1) had given Rs.5 lakhs to Daniel to murder him, but Daniel allowed him to escape and had advised him to leave P.W.1 and go away to Bombay so that Accused No.1 can marry P.W.1.  P.W.1 and her husband decided to meet Accused No.1 so that they can plead with him to leave them alone.  
2.4 Accused No.1 was surprised to see Santhakumar alive as Daniel had told him that Santhakumar had been tied up and thrown in a railway track and a train had run over him.  Daniel was called by Accused No.1 and sarcastically castigated for having allowed the Santhakumar to escape.  Santhakumar was also assaulted.  P.W.1 and her husband were forced to give in writing to withdraw the earlier case, namely, Velachery P.S.Cr.No.1030/2001, filed by them.  Some signatures were also forcibly taken from them as well as from other members of family.  
2.5 On 24th October, P.W.1 and her husband had gone to the Magistrate's Court for withdrawal of earlier complaint. On the same night, i.e., 24.10.2001, all of them were taken to Parappadi village in a Sumo vehicle bearing Registration No.TN-10-L-7755, belonging to Accused No.1.  On 25.10.2001, after giving medicine, P.W.1, her husband, her parents and others were taken to Thiruchendur Temple for darshan and thereafter all of them including Accused No.1 had gone to Tirunelveli.  On the morning of 26.10.2001, Accused No.5, namely, Tamil Selvan, came and told the husband of P.W.1 that Accused No.1 wanted to talk with him.  Both Santhakumar and P.W.1 went to ground floor, where Rajagopal, Accused No.1 was waiting in Sumo car.  P.W.1 and her husband were asked to get inside the vehicle.  After a few minutes, the car stopped.  Accused No.2 Daniel, Accused No.6 Kasi, Accused No.3 Karmegam and Accused No.4 Hussain, who had followed in another car, got down from the said vehicle and Accused No.1 shouted to take away the deceased who was pulled out by the aforesaid accused persons.  P.W.1., who was protesting, was pushed angrily inside the vehicle by Accused No.1 and thereafter the vehicle returned to the hotel and all of them returned to Chennai.   P.W.1 and her parents stayed in Velachery from 26.10.2001 to 6.11.2001, but no information regarding her husband had been received.  On 28.10.2001, one fortune teller told that husband of P.W.1 was wandering as a mentally deranged   person and may return after three years. On 6.11.2001,  they went to their native place, but there was no news relating to the husband of P.W.1 till the date of reporting on 20.11.2001.  In the FIR., a suspicion was expressed that the henchmen of Accused No.1 might have murdered the husband of P.W.1.

3. After the aforesaid FIR was lodged, on 22.11.2001, the statement of P.W.1 was recorded under Section 164 Cr.P.C in connection with Velachery Police Station Cr.No.1030/2001 (registered in connection with the incident dated 1.10.2001).  However, in such 164 statement, which is marked as Ex.P-2, the statement of P.W.1, vividly describing the circumstances which led to the incident dated 1.10.2001 and thereafter what had happened between 18.10.2001 and 26.10.2001, were recorded by the Judicial Magistrate.  (A portion of the aforesaid statement was also marked as Ex.D-1 on behalf of the accused).
3.1 In the meantime, on 31.10.2001, before the FIR in the present appeals had been lodged, one Forester Raman and Forest Guard Murugesan (P.W.26 & P.W.27 respectively) attached to Perumal Malai of Kodaikanal Range discovered a dead-body of a male.  P.W.27 lodged a written complaint ExP-42 at Kodaikanal Police Station, which was registered as Cr.No.559 of 2001 under Section 174 Cr.P.C., recording about the unnatural death.  P.W.29, who was in charge of Kodaikanal Police Station, took up the investigation in connection with the said case and photographs of the unknown dead-body had been taken.  Inquest was held and post-mortem was conducted on 1.11.2001 and thereafter such dead-body was buried in the Hindu burial ground of Kodaikanal Municipality.  Subsequently, in course of investigation of the present case in Cr.No.1047 of 2001, it transpired that the said dead-body was that of Santhakumar and, after completion of investigation, charge-sheet was filed under various provisions of the Indian Penal Code including under Sections 302, 364 and 201 IPC.

4. To substantiate the charges against the accused, prosecution had examined PWs.1 to 42.  Exs.P1 to P121 were marked.  Ambassador car bearing Registration No.TN-09-3224 and and another Ambassador car bearing Registration No.TN-22-5202 were marked as M.O.1 and M.O.s.  Tata Sumo bearing Registration No.TN-09-Q-1310 undisputedly belonging to A2 was marked as M.O.3 and the Benz car bearing Registration No.TN-10-M-7755 undisputedly belonging to A1 was marked as M.O.4.  Wearing apparels of the deceased were marked as M.O.5 and M.O.6.  Belt and other articles, such as Money-purse, gold chain were marked as M.Os.7, 8 and 9.  Many photographs and negatives were also marked as M.Os.  In all, from the side of prosecution, 79 M.Os were marked.  Similarly from the side of defence, photographs were marked as M.Os.1 to 11.   Accused were questioned about the incriminating circumstances and evidence u/s.313 (1)(b) Cr.P.C.  All the accused denied the evidence and pleaded not guilty.  Accused have examined DW1 who is a retired Director of Forensic Sciences Lab during 1993.  Accused have also marked Exs.D1 to D5 and certain M.Os.

5. Upon consideration of the evidence, learned Addl. Sessions Judge, Poonamallee held that the guilt of the accused persons had been proved beyond reasonable doubt.  The learned Addl. Sessions Judge by pointing out that 1st accused was lured and enticed by PW2 and that the same was not discouraged by PW1, found the accused persons guilty of the offence u/s.304(I) IPC and other offences.  Accused persons were convicted and sentenced to undergo imprisonment and fine was imposed as under:-

Accused
Offences
Sentence
Accused  1
1) 109 r/w 364 IPC

2) 109 r/w 304 (I) IPC

3) 109 r/w 201 IPC

1. RI for 3 years & fine of
 Rs.20 lakhs i/d 1 year RI
2. RI for 10 years & fine of
Rs.30 lakhs i/d 3 years RI
3. RI for 2 years & fine of
Rs.5 lakhs i/d. 6 months RI

Accused  2
1) 364 IPC

2) 304 (I) IPC

3) 201 IPC
1. RI for 3 years & fine of
 Rs.15,000/- i/d 1 year RI
2. RI for 9 years & fine of
Rs.30,000/- i/d 3 years RI
3. RI for 2 years & fine of
Rs.5,000/- i/d. 6 months RI

Accused  3,4 & 6
1) 364 IPC

2) 304 (I) IPC

3) 201 IPC
1. RI for 3 years & fine of
 Rs.10,000/- i/d 1 year RI
2. RI for 7 years & fine of
Rs.15,000/- i/d 3 years RI
3. RI for 2 years & fine of
Rs.5,000/- i/d. 6 months RI

Accused  5,8 & 9
109 r/w 364 IPC
RI for 3 years & fine of
Rs.5,000/- i/d 1 year RI

Accused  7
364 IPC

109 r/w 304 (I) IPC

201 IPC
1. RI for 3 years & fine of
 Rs.10,000/- i/d 1 year RI
2. RI for 6 years & fine of
Rs.15,000/- i/d 3 years RI
3. RI for 2 years & fine of
Rs.5,000/- i/d 6 months RI

6. Crl.Appeal No.637 of 2004 has been filed by Accused No.1 Rajagopal, and other accused persons and Crl.Appeal No.748  of 2004 has been filed by the State against A1 to A3, A4 to A6 and A7 with the sole contention that the conviction should have been under Section 302 IPC and not under Section 304 Part-I IPC.

7. The trial court, on analysis of evidence, has come to the following conclusions:-
(i) The first accused had developed an evil intention to have P.W.1 as his third wife and since he felt that existence of the deceased was an impediment, he had instigated other accused, who were his henchmen, to eliminate the deceased and, therefore, he had motive to instigate other accused to eliminate the deceased;
(ii) The accused persons and the deceased were last seen together and non-offering of satisfactory explanation from the accused as to how the accused has parted with them, adverse inference has to be drawn;
(iii) The confessional statement made before P.W.37, as per Exs.P-92 to P-95, are admissible and indicate that at the instigation of A1, the deceased was abducted and handed over to A2 to A4 and A6 for exterminating the deceased;
(iv) The information given by A2 has resulted in discovery of the fact that the dead-body was of Santhakumar, the said information leading to discovery of the said fact is admissible under Section 27 of the Evidence Act;
(v) The information of A2 has led to recovery of Ambassador cars M.Os.1 and 2 and Tata Sumo M.O.3 and also Lungi M.O.15 found beneath the seat of the Tata Sumo and such confessional statement and consequent recovery lent assurance to the prosecution case;
(vi) The confession of A6 has led to recovery of a gold dollar chain M.O.9, money purse with photo of Jeevajothi M.O.7, cash of Rs.2400/- M.O.16 series and a shawl M.O.17;
(vii)  The medical evidence indicates that the death was due to throttling.  In other words, death was homicidal.

The trial court further concluded that the credibility of the prosecution case has not been blemished on account of delay in lodging the FIR.  The trial court further recorded a finding that the defect in investigation has not affected the prosecution case.  The submission on behalf of the accused that P.W.1 and her family members had come forward with a false case in order to blackmail Accused No.1 has not been accepted.

8. Learned Senior Counsel appearing for Appellant No.1 and the learned Senior Counsels appearing for other appellants have submitted as follows :-

(i) Charges framed against all the accused persons are defective in nature thereby vitiating the entire trial;
(ii) The alleged motive to get rid of Santhakumar in order to marry P.W.1 cannot be said to have been established;
(iii) In view of the inordinate and unexplained delay in lodging the FIR, the entire prosecution case is liable to be thrown overboard and at any rate the evidence of P.W.1 is liable to be discarded;
(iv) In view of the contradictions and omissions in the evidence of P.W.1 and P.W.2 and the embellishments made from time to time, no implicit reliance can be placed on such evidence;
(v) Adverse inference should have been drawn against the prosecution for non-examination of many vital witnesses;
(vi) Confessional Statements  of Appellants 2 to 4 and 6 before P.W.37, the Tahsildar, cannot be relied upon for any purpose being inadmissible as such confessions have been made by them while in police custody not in the presence of a Magistrate, but otherwise;
(vii) Confession / statement of Accused No.2 relating to throwing of dead-body in Tiger-Chola in Kodaikanal is not admissible inasmuch as no dead body was discovered at that place pursuant to the so called statement;
(viii) Confessional statement of A6 leading to alleged recovery of gold chain with dollar, money purse containing cash and photo of P.W.1, cannot be believed;
(ix) Unidentified dead-body, which was found by the forest officials at Tiger-chola, cannot be said to be that of Santhakumar;
(x) The post-mortem report given by Dr. Sivakumar (P.W.35) is not acceptable;

9. Learned Public Prosecutor appearing for the State, on the other hand, has refuted almost all the contentions of the Counsels for the appellants.  He has further submitted that in view of the findings rendered by the trial court, there was no occasion to convict the accused persons under Section 304 Part-I IPC and the conviction should have been under Section 302 IPC.  He has therefore submitted that the appeal filed by the accused persons should be dismissed and the appeal filed by the State Government should be allowed and the conviction under Section 304-Part I should be altered to one under Section 302 IPC.

10. Before considering the other submissions made by the counsels for accused / appellants in Crl.A.No.637 of 2004, one part of the adverse material relied upon by the trial court, namely, the confession made by Appellants 2 to 4 and Appellant No.6 before P.W.37, the Tahsildar, can be safely discarded.  It is not in dispute that the accused persons who are stated to have made confession before the Tahsildar P.W.37 were admittedly in police custody when they had "confessed" before the Tahsildar.  Law is now well settled that confession by an accused person who is in police custody is not admissible unless it is made in the immediate presence of a Magistrate.  Law is equally well settled that the expression "Magistrate" would mean a Judicial Magistrate and not an officer in the Executive or in other words not an Executive Magistrate.  Therefore, apart from the fact whether the Tahsildar had given the accused persons sufficient warning or not and whether such confessions were voluntary or not, the confessions made to be taken to be inadmissible as they were not made in the presence of Judicial Magistrate.  As a matter of fact, the Public Prosecutor has fairly submitted that Exs.P-92 to P-95 are to be eschewed from consideration.

11. Learned counsels appearing for the appellants have submitted that the charges framed against the accused/ appellants are defective and do not give a clear and precise picture of the allegations against the various accused persons.
We have perused carefully the charges which have been framed and we are of the considered opinion that framing of charges is a tad unsatisfactory in the sense the charges are very  verbose and have recounted many unnecessary factual details which need not have been incorporated as part of the charges against the accused persons.  Under Sec.464 Cr.P.C., no finding, sentence or order of a Court shall be deemed to be invalid on the ground that no Charge was framed or on the ground of any error or any irregularities in the Charge, unless in the opinion of the Court of Appeal, a failure of justice has in fact been occasioned thereby. The inartistic way of drafting the charges, however, has not at all prejudiced any of the accused persons.  A charge is expected to be precise and concise enough to convey the substance of the allegation against the accused person and the offence which is committed.  In the present case, except the criticism that the charges have become very unwieldy in the sense that many unnecessary details have been given, we cannot perceive that any prejudice has at all been caused to the accused.  Law is well settled that a defect in the charge, unless it has the effect of prejudicing any of the accused person, does not vitiate the trial. (See  W.Slaney  vs.  State of M.P. - AIR 1956 SC 116).  In  several subsequent decisions of the Supreme Court such as in (1999) 2 SCC 522 (KAMMARI BRAHMAIAH v. PUBLIC PROSECUTOR, HIGH COURT OF A.P.,), (2003) 1 SCC 217 (K. PREMA S. RAO v. YADLA SRINIVASA RAO), (2004) 5 SCC 334 (DALBIR SINGH v. STATE OF U.P.), (2005) 5 SCC 194 (KAMALKANANTHA v. STATE OF TAMIL NADU), (2006) 1 SCC 463 (HARJIT SINGH v. STATE OF PUNJAB), and (2008) 1 SCC (Cri) 72 (ANIL alias RAJU NAMDEV PATIL v. ADMINISTRATION OF DAMAN & DIU, DAMAN AND ANOTHER), similar principles have been laid down.  This contention, therefore, does not advance the case of the appellants.

12. As we have already noticed, the trial court has placed strong reliance upon: (i) motive, (ii) subsequent abduction of the deceased and (iii) factum of the deceased being last seen with the accused persons and (iv) statements of the accused persons leading to discovery.  The first three of the above aspects are sought to be proved by the prosecution primarily through the evidence of P.W.1 and P.W.2.  It is therefore necessary to notice in brief the relevant materials proved through the mouth of P.W.1 and P.W.2.

13. From the evidence of P.W.1 as well as her mother P.W.2 it is apparent that their family shifted to Chennai after disposing of their properties in their native place.  Uncle of P.W.1 was already working in Hotel Saravana Bhavan.  On his suggestion, an amount of Rs.4.50 lakhs was deposited with the accused Rajagoopal (A1), who was giving about Rs.6000/- or Rs.7000/- every month to the family of P.W.1.  A few months thereafter, father of P.W.1 joined Hotel Saravana Bhavan as Assistant Manager and the family was residing in a colony which had been taken on lease by Hotel Sasravana Bhavan for its employees.
13.1 In order to teach Mathematics to the younger brother of P.W.1., Santhakumar, the deceased, was contacted.  This, however, was not to the liking of A1, who gave an ultimatum to the family of P.W.1 that either Santhakumar should stop visiting the house or they should vacate the house.  Because of such attitude, the family of P.W.1 had to shift residence to MGR Nagar and, in course of time, the father of P.W.1 had also resigned his job and gone to Malaysia seeking for a job there.  Santhakumar, as usual, was visiting the house of P.W.1 and her mother and, in course of time, P.W.1 fell in love with Santhakumar.   However, since Santhakumar was a Christian, mother of P.W.1 was reluctant for the marriage between the two; but ultimately P.W.1 married Santhakumar in the office of the Sub Registrar, Anna Nagar, on 28.4.1999, without the knowledge of her family members.  The couple had gone to Madurai and P.W.1 had contacted her mother from there.  P.W.2 brought both of them from Madurai to Chennai and arranged for a marriage between the two in a temple in Tiruvanmiyur.  P.W.1 and her husband started living in a house at Kottivakkam and her mother and brother were staying in another house three streets away.  Santhakumar was working as a Career Agent in LIC.  
13.2 A few months after the marriage, P.W.1 joined a travel agency named "S.S. Annamalai Travels" at Tiruvanmiyur and continued like that for three years.  At that stage, P.W.1 and her husband wanted to start their own travel agency and, being asked to help, P.W.2 obtained a loan from the Uncle of P.W.1 and a travel agency named as "Global Air Travels" was started at Velachery.  However, P.W.1 and her husband were in need of more money and they again asked P.W.2 for help.  Ultimately, on the persuasion of P.W.2,  A1 agreed to give money but he advised the couple to visit "Mani Mandapam" constructed by him at Vellore so that they can visit that place, offer worship and he can handover cash at that place.  Accordingly, P.W.1 and her husband visited the said place and were given money in different instalments.  In the process, Accused No.1 used to talk over phone with P.W.1 either at her office or at her residence every day.  At times also he would be visiting the shop and talk with P.W.1 and her family members for long time.  Since Accused No.1 had expressed his displeasure to P.W.2 for even not being invited once to the house of P.W.1, he was invited to the house of P.W.1 and her husband.  Accused No.1 also bestowed costly gifts such as jewellery and dress on P.W.1 on her birthday.
13.3 On 16.9.2001, P.W.1 was admitted to Malar Hospital for some treatment as an inpatient.  On 20.9.2001,  Accused No.1, his Special Assistant Sethu (A8) and two friends, namely, one Chandrasekar and a Doctor came to Malar Hospital and they gave advice that proper treatment was not being given in the hospital and P.W.1 should be treated by Dr. Lalitha, who was working in Vijaya Nursing Home at Vadapalani.  After they had gone and when Santhakumar came in the night, P.W.1 expressed her anxiety over the presence of so many persons but, however, her husband consoled her.  In the meantime, Accused No.1 also gave a cellphone to P.W.1.  According to P.W.1., Accused No.1  told over the said cellphone "As I want to talk to you first of all through that cellphone I have sent it through Chelliah instead of handing over the phone to your husband".
13.4 P.W.1 was subsequently discharged from the hospital and the amount was paid by Accused No.1.  Thereafter she was shifted to Nursing Home of Dr. Lalitha, where she was required to undergo certain tests.  Subsequently, she was told that there was no defect in her and her husband was required to be tested.  She was further told that before undergoing the test, her husband should not indulge in sexual intercourse for four days and should undergo the test thereafter.  After returning from Vijaya Nursing Home in the night at about 12.30 A.M., P.W.1 got a phone call from Accused No.1, who told that she had telephoned to remind the advice given by Dr. Lalitha.  A few days thereafter, P.W.1 attended her office where she was told by Accused No.1 over telephone that after receiving the test report her husband should be sent to the Doctor.  Santhakumar telephoned P.W.1 stating that Dr. Raja had advised him to undergo HIV test and other tests which he declined.  Subsequently, when she was in the office, Accused No.1 told her that,
". . . your husband has refused to undergo HIV test.  I know already that he will refuse".
She was also told that
"Malayala Mantra medicine had been given to her without her knowledge to put on more flesh and her husband had approached cinema directors so that she can act in films."

13.5 On the same day mid-night 28.09.2001 at about 12.30 hours, Accused No.1 along with parents of P.W.1 came to the house of PW1 and started shouting at PW1's irresponsible attitude.  PW1 getting agitated over the first accused's shouting and causing disturbance during night hours, cautioned first accused that she would complain about him to the police.   First accused thrusting his cell-phone in the hands of PW1 derisively asked her to contact any police and that he would manage with money.  First accused also told PW1 that Kiruthiga was also adamant in the beginning and later she got herself surveillance  and after first accused married her as second wife, she is leading a queen life.  Looking at Santhakumar, first accused further declared that he is doing everything only with an intention of making PW1 as his third wife and gave him two days time to severe his relationship with PW1 and to leave her once for all.
13.6 On 01.10.2001, 1st accused called Santhakumar questioning him as to whether  any decision has been taken by him stating that two days had lapsed in the meantime.  
13.7 Being agitated, P.W.1 and her husband Santhakumar decided to move away to some unknown place and went to Marina Beach to contemplate their future course of action.  PW1 and her husband Santhakumar came to their house to take some money for meeting the expenses, but noticed the presence of PW2, Ramasamy [father of PW1 and Ramkumar] and A2 [Daniel], A3 [Karmegam], A4 [Hussain @ Zakir Hussain], A5 [Tamil @ Tamilselvan], and A6 [Kasi @ Kasi Viswanathan], infront of their house.  Stephan and Rajendran were also present there.  PW1 and her family members were made to get in and travel in M.O.2 Ambassador car bearing registration No.TN-22-5202.  While all other accused persons got into another Ambassador car M.O.1 bearing registration No.TN-09-T 3224.  They all reached the first floor of Chandrasekar's house at K.K.Nagar being used as Godown of Saravana Bhavan Hotels.
13.8 First accused who came there, folding his dhoti and assaulted PW1's husband with his hands.  On the direction of the first accused, other accused present there also beat PW1's husband.  PW1 pleaded with the first accused by holding his feet to leave her husband.   Santhakumar tried to lift PW1 with his hands.  Angered over the same, 1st  accused asked Santhakumar not to touch her.  By stating, 1st  accused commanded the other accused present there to take PW1's husband from there and beat him.  By sitting in the corner of the room, PW1 was weeping.  At that time, first accused told her that though he could do with her whatever he liked and that he would not stoop down and insisted PW1 to marry him as his third wife.   Chandrasekar also persuaded PW1 to yield to first accused.
13.9 On the next day, second accused-Daniel contacted PW1 through phone and regretted for previous day's happenings and  suggested to PW1 to lodge a complaint against the first accused before the Commissioner of Police.
13.10 PW1 and her husband Santhakumar were under surveillance by first accused's men. Under the pretext of going out to attend the felicitation function arranged for the 1st accused, on 12.10.2001 PW1 accompanied by her husband, went to the City Police Commissioner and lodged Ex.P3 complaint.

14. The incident dated 1.10.2001 is the subject matter of a separate trial and separate appeals.  What happened thereafter is the subject matter of the present appeals and, therefore, it is felt appropriate to summarise the incident in a chronological manner by collating the evidence of P.W.1 as well as P.W.2.

15. After giving complaint on 12.10.2001, PW1 and the deceased Santhakumar returned back to their house.  They noticed from a distance that their house was surrounded by A2 and henchmen of 1st accused.  On the advice of A2, PW1 and the deceased Santhakumar stayed in a lodge at Egmore.  PW1 sought the help of A2.  A2 conveyed to PW1 that her father had lodged a complaint to the police about her absence "as missing".  PW1 sought help of A2 in arranging for a press meet.  But A2 informed her to send her husband alone to Sai Baba Temple near VGP for the purpose of meeting reporter personally known to him.

16. On 18.10.2001 in between 6.00 P.M. and 7.00 P.M., PW1 and her husband went to the said place in a car.  At that time, two Ambassador cars bearing registration Nos. TN-09 T 3224 and TN-22 5202 and Tata Sumo bearing registration No.TN-0 Q 1310   came and halted behind their car.  A3 and A4 armed with knife got down from the anterior car and sitting each side of their car's door.  PW1 and her husband were forcibly made to board into anterior car and the car went and stopped at the main road in front of Air Port, Meenambakkam for about 10 minutes.  A5 who was also seated in the car passed on phone message from there.  The car then started and went and stopped at Chengalpattu for about 30 minutes and also Tata Sumo came and stopped in front of the said car.  At about 8.30 P.M., a Benz car bearing registration No.TN-10 M 7755  belonging to the 1st accused came there.  PW1's mother-PW2 got down from the Benz car and informed PW1 that 1st accused is in the said Benz car and wanted PW1 to come leaving her husband alone.  When PW1 resisted, she was forcibly taken by A3 and A4 to the Benz car.  PW1's father was also sitting in the said car.  Then the car proceeded to Trichy.  On the way, A1 showing xerox copy of the report given by PW1 tauntingly questioned her as to the complaint.  PW1 begged for excuse and asked the 1st accused to allow her to join her husband.  First accused told her that she would meet her husband at Trichy whereto they were also going.

17. On 19.10.2001 PW1 was taken to PW9 Kuzhanthai Pandichi at Parappadi village to remove the influence of witch craft (black magic). From there PW1 was taken to PW8 at Veppankulam village for the purpose of seeking 'Kuri' (like Astrology) Janarthanam, an employee of 1st accused came there and talked secretly with the 1st accused (Incidentally, P.W.8 and P.W.9 both turned hostile). The said Janarthanam then informed PW1 that her husband had escaped and his whereabouts were not known.  They also went and stayed at hotel Ariyas at Tirunelveli.  On the same evening PW1, her parents, her brother, Janarthanam, A5 and A8 and the 1st  accused all returned from Tirunelveli to Chennai by train.

18. On 21.10.2001 Santhakumar talked to PW1 through phone and stated that A2 had informed him that A2 was given Rs.5 lakhs by A1 to finish him off and that A2 taking pity and sympathy has let him unharmed and had asked him to go to Bombay and contact him from there after 15 days.  Santhakumar advised PW1 to escape someway or other and join him.  PW1 told him that there was tight  security and requested Santhakumar to come to the house, so that both of them could plead with A1 to pardon them.  Heeding the said proposal, Santhakumar also came to PW2's house.  PW1 informed the same to 1st accused.  First accused came there along with A5 and A8 and PW1 and her husband Santhakumar pleaded for mercy and assured A1 to withdraw the police complaint.

19. On the same evening as per the direction of A1, PW1, her husband, her parents and her brother all were taken to Vadapalani Office building by A5 and A6.  PW1, her husband, her parents and her brother were kept in a room.  A1 then summoned A2 and questioned him about Santhakumar.  A2 narrated that he had thrown Santhakumar after removing his pant and shirt and also after tying his hands and legs with ropes on the railway track and that Santhakumar's face got disfigured and shattered being run over by the train and that he had also burnt the shirt and pant with the use of petrol.  Thereupon, A1 called Santhakumar from the adjacent room.  A1 then pointing at Santhakuamar, asked A2 whether he was younger brother or elder brother or ghost of Santhakumar.  A2 thus being  disgraced, assaulted Santhakumar for his betrayal.  A3 and A4 joined A2 in beating Santhakumar.  PW1 and her father went for the rescue of Santhakumar.  PW1 was pushed down while her father was also beaten up by them.

20. Chandrasekar and Rajendran @ Yaanai Rajendran, an Advocate were present there.  As per the dictation of the said Rajendran, PW1 wrote and signed a paper purporting to withdraw the police complaint in Cr.No.1030/2001.  Signatures of PW1, her husband, her parents and her brother were also obtained in  blank papers.  On 24.10.2001, PW1 and her husband were taken to Dy. Commissioner of Police, Guindy and then to Metropolitan Magistrate Court, Chennai for withdrawal of police complaint.


21. On 24.10.2001 A4 and A6 took PW1, her husband, her parents and her brother in the Tata Sumo car bearing registration No.TN-10 L 7755 belonging to A1. They were all taken to Parappadi village and Veppankulam village again for removal of witchcraft.  On the next day,  PW1, her husband and her parents were taken to Tiruchendur temple and they all stayed at the Cottage belonging to the said temple trust and on the same night, they reached Tirunelveli and stayed at Hotel Ariyas.

22. On 26.10.2001 at about 6.30 A.M., A5 came to the first floor where PW1 and her family members stayed.  A5 informed that A1 has asked to bring Santhakumar.  Unwilling to send him alone, PW1 also went along with him to ground floor.   A1 standing by the side of Tata Sumo car bearing registration No. TN-10 L 7755 asked both PW1 and her husband to get into it and A1 told them that he wanted to talk an important matter with them.  A9 was driving it and A5 was in the front seat and A8 was in the rear seat.  Tata Sumo bearing registration No. TN-09 Q 1310 followed the said car.  After 10  12 minutes journey, the Tata Sumo bearing registration No. TN-10 L 7755 stopped near Karai Iruppu culvert, indicating the direction of Tarapuram on Madurai-Dindigul main road.  On the signal shown by A5, the other Tata Sumo bearing registration No. TN-09 Q 1310 following closely also stopped.  A2, A4 and A6 got down from the said car and came near Tata Sumo bearing registration No. TN-10 L 7755. First  accused getting down from the other car pulled Santhakumar by holding his shirt and pushed him down from the said car.  Handing him over, 1st accused asked A2 to A4 and A6 "finish him off".   The Tata Sumo bearing registration No. TN-09 Q 1310 with Santhakumar, A2 to A4 and A6 being driven by A7 proceeded straight in the direction of Dindigul.

23. First accused came back in the same Tata Sumo bearing registration No. TN-10 L 7755 to Hotel Ariyas along with PW1 and her parents driven by A9.  First accused told the family members of PW1 to have discussion about all things after reaching Chennai.  While returning to Chennai, PW1, her parents, her brother and A5 travelled in the Tata Sumo bearing registration No. TN-10 L 7755  while first accused travelled in the Benz car bearing registration No. TN-10 M 7755.  Thereafter, PW1 was staying at her mother's house at Ayothiya kuppam, Velachery brooding over her husband.  PW1 has stated that A5, A8, Stephen, Prakash, Subramaniyan and some others  henchmen of A1 kept vigil over the movements of PW1 and her family members.  At the instance of A1, PW1 and her family members were taken by one Perumal  to an Astrologer by name Ravi (PW4).  A few days later at the instance of A1, one Raghunatha Iyer at K.K.Nagar conducted certain rituals in the presence of Kiruthiga, 2nd wife of A1.

24. From the narration of the above events, which are apparent from the evidence of P.W.1, read in conjunction with the evidence of P.W.2., the prosecution has proved that Accused No.1 either because he was advised by an Astrologer that his business and prosperity would increase if he takes P.W.1 as his third wife or may be he was besotted with P.W.1, wanted to take P.W.1 as his third wife notwithstanding that P.W.1 had already married Santhakumar.  Originally Accused No.1  tried to create some rift between P.W.1 and her husband by creating impression as if the husband of P.W.1 was suffering from some dreadful disease like HIV and that he was trying to take some financial advantage by making his wife to work as a film star.  It was also made known to P.W.1 that he had gone out of his way to help P.W.1 because he wanted to make her as his third wife and the husband of P.W.1 was initially told to leave P.W.1 and thereafter given threatening to that effect.  This part of the story, which culminated in the incident dated 1.10.2001, has also been found to be proved in the other connected appeals, even though there has been some alteration in the punishment.

25. Since the husband of P.W.1 did not pay heed to the warning and threat given, Accused No.1  apparently entrusted the work of getting rid of the deceased to Accused No.2 and few others.  However, Accused No.2, instead of exterminating the deceased, allowed him to escape but gave the impression to Accused No.1 as if the deceased was exterminated by placing him on a railway track.  The deceased, however, instead of running away and leaving P.W.1., contacted P.W.1 and told her about such action.  After discussion of the matter over telephone, the deceased rejoined P.W.1 and both of them decided to seek for mercy from Accused No.1 and, therefore, met him and Accused No.1 belittled Accused No.2 for having given a false picture as if the deceased had been exterminated.  Thereafter, P.W.1 and her husband were taken to places like Tiruchendhur, Tirunelveli and ultimately on the morning of 26.10.2001, the deceased was forced to go with accused persons and P.W.1 and her parents had to return to Chennai along with Accused No.1.

26. The above evidence, if believed, clearly establishes that there was a strong motive for  Accused No.1 to get rid of the deceased in order to make it possible to take P.W.1 as his third wife and P.W.1 and her husband had been forcibly taken from place to place and thereafter the deceased was forced to go with other accused persons and P.W.1 and her family members had to come back to Chennai.  In other words, such evidence, if accepted, not only proves the motive but also the fact that the deceased was last seen together with some of the accused persons who took away the deceased in a Tata Sumo belonging to Accused No.2 as per the direction of Accused No.1.

27. Learned counsels who have appeared for the appellants have submitted that such evidence adduced by the prosecution should be discarded for the following reasons :-
(1) Delay in lodging the FIR in respect of the incident dated 1.10.2001 as well as the subsequent incident dated 26.10.2001.

(2) There are contradictions, embellishments and omissions in the evidence of P.W.1 and P.W.2.
These aspects are, therefore, required to be considered carefully at this stage.

28. So far as the incident dated 1.10.2001 is concerned, it had been explained by P.W.1 that she had been kept under surveillance and, therefore, she could not immediately lodge the FIR.  It is contended on behalf of the accused that P.W.1 had two mobile phones with her and she knew the phone number of high ranking police officers and she was also attending the office and, therefore, she had enough opportunity to lodge the complaint regarding the incident dated 1.10.2001.

29. It is no doubt true that it may prima facie appear that there has been some delay in lodging the FIR relating to the incident dated 1.10.2001.  We should not, however, lose sight of the glaring fact that in the complaint relating to the incident dated 1.10.2001, she had made certain allegations relating to the conduct of her parents, more particularly her mother P.W.2 and that the parents of P.W.1 were quite well known to Accused No.1 and in fact the father of P.W.1 had worked under Accused No.1 and had also benefitted from the helpful attitude of Accused No.1 in monetary matters.  Under such circumstances, a girl aged about 21 years would be naturally hesitant to file complaint making allegations not only against the benefactor of her parents but also against her own parents.  One can only say that she must have been in a position like Prince Hamlet "to be or not to be".  Not only Accused No.1 was a very rich and influential person but also the alleged role of the parents of P.W.1 was obviously lurking in the mind of P.W.1.  Under such circumstances, we do not think there was any unnecessary and undue delay in lodging the first FIR Ex.P-3.

30. The question which has been strenuously raised in the present appeals is also relating to the delay in lodging the second FIR in respect of the incident dated 26.10.2001 and what had happened before that.  In this connection, it is also vehemently contended by the counsels appearing for the appellant that P.W.1 had enough opportunity to complain regarding such later incident dated 26.10.2001.  It has been further submitted that as a matter of fact, as per the statement of the police, she had been examined by the police in connection with the earlier case on 9.11.2001 and 16.11.2001 in connection with Crime No.1030/2001 and, therefore, she could have complained about the incident dated 26.10.2001.  Even though such a contention may appear to be prima facie attractive, on overall view of the matter, we are unable to persuade ourselves to discard the FIR relating to the incident dated 26.10.2001 as a mere fabrication or aimed at blackmailing Accused No.1 as has been suggested in course of trial or in course of hearing of the present appeals.

31. It is no doubt true that P.W.1 had been examined by police on 9.11.2001 and 16.11.2001, whereas the FIR relating to the incident dated 26.10.2001 was formally lodged only on 20.11.2001.  However, in this connection, we cannot overlkook the fact that even though an FIR had been lodged relating to the incident dated 1.10.2001 on 12.10.2001, such FIR was formally registered later, only on 9.11.2001.  This prima facie gives the impression that the police was in no hurry to start any proceeding.  Apart from the above, even Accused No.1 himself had imperiously shown a xerox copy of the complaint dated 12.10.2001 and had taunted that nothing could be done against him.  Moreover, the husband of P.W.1 had been allowed to escape on a previous occasion and, therefore, it would be most reasonable on the part of P.W.1 to believe that instead of rushing to the police which might further precipitate the matter and antagonize Accused No.1, who was obviously very rich and powerful person, it may be more prudent to wait hopefully so that the husband of P.W.1 may be allowed to escape or return.  As a matter of fact, the evidence of P.W.2 discloses:-
". . . Though my daughter told me that, we could give a complaint to the police, regarding the disappearance of her husband, it was only me who told her that, some how he would comeback to us and that, since we had given such a complaint, many problems had arisen and that, in the event of giving any such complaint, they would kill her husband, who was alive and thus I prevented her."
31.1 In addition to the above, it is obvious that P.W.1 herself was a little doubtful regarding the role played by her parents in the earlier incident dated 1.10.2001.  Therefore, such reluctance to rush to the police must have been compounded further.  It is also apparent from the evidence that on 21.10.2001, in the office of Accused No.1, P.W.1 and her husband were forced to sign in the papers in the presence of one Advocate Rajendran @ Yaanai Rajendran for withdrawal of the complaint dated 12.10.2001 and, on 24.10.2001, P.W.1 and her husband were taken to the Deputy Commissioner and Metropolitan Magistrate, Chennai, to get the signatures for withdrawal of the earlier complaint.  Obviously on account of such developments, a girl aged about 21 would be skeptical regarding the fate of a complaint made before the police, particularly when such complaint relates to rich and unscrupulous persons.

32. In  (1974) 4 SCC 201 = AIR 1974 SC 606 (RAM JAG v. STATE OF UTTAR PRADESH), the Supreme Court observed :-
16. . . . It is true that witnesses cannot be called upon to explain every hours delay and a commonsense view has to be taken in ascertaining whether the first information report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution. . . .
(Emphasis added)

33. In 1991 Supp (1) SCC 536 = AIR 1991 SC 63 (TARA SINGH v. STATE OF PUNJAB), the Supreme Court has observed as follows :-
4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. . . . . Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case. . . (Emphasis added)

34. In (2000) 5 SCC 30 = AIR 2000 SC 1812 (STATE OF RAJASTHAN v. N.K. the accused), it was observed :-
15. We may however state that a mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the court it cannot be counted against the prosecution. . . .

35. We would also like to refer to the observations made by the Supreme Court in (2003) 2 SCC 518 : 2003 SCC (Cri) 641 [AMAR SINGH v. BALWINDER SINGH], wherein it was held as follows :-
". . . there is no hard-and-fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful.  . . . it necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case . . . ."

36. Ordinarily if there is unexplained delay in lodging the FIR, the court, while appreciating the evidence, should be on guard to find out whether there is any scope for false accusation with some collateral motive.  The court should be also on guard to scrutinise the prosecution evidence a little more closely so that the possibility of any innocent person being falsely implicated is ruled out.  The evidence requires a stricter scrutiny. Under these circumstances, we are unable to discard the entire prosecution story solely on account of the understandable delay in lodging the FIR because of the circumstances which we have narrated.

37. It is not as if P.W.1 can, even remotely, be considered as an accomplice so that her evidence is required to be corroborated on material particulars through an independent source.  Similarly, though some fingers have been pointed out at P.W.2 in the F.I.R. Ex.P-3 by her own daughter P.W.1., it cannot be said that corroboration furnished through the evidence of P.W.2 was from a tainted source.


38. In the present case, the evidence of P.W.1 has not only received sufficient corroboration on material particulars from the evidence of P.W.2 but also from some other circumstances.  The version of P.W.1 that she and others were taken to different places like Tiruchendhur and Tirunelveli has received some general corroboration from the fact that contemporaneous records maintained in the hotels or guest houses in those places indicate the presence of the accused persons on those dates.

39.  That some of the accused stayed in Tirunelveli and Tiruchendur on 25.10.2001 is evident from the entries in the Registers seized from different Hotels and Lodges.  P.W.20 Varadarajan was employed in the Reception of Hotel Ariyas, Tirunelveli.  P.W.20 has admitted seizure of Ex.P25 Lodge Booking Register.  Ex.P37 entry (in Ex.P25) would show that entry was made in the name of A8 [Sethu] for Suite No.200.  The entry reads as follows:-
V.K.Sethu
No.25, 10th Avenue,
Ashok Nagar, Chennai-83.
Though P.W.20 had turned hostile, he has admitted seizure of Register of Hotel Ariyas.  In Ex.P88 report, P.W.36 Handwriting Expert had opined that the handwriting and signature in Ex.P37 entry must have been written by A8 (Sethu).

40. P.W.21 [Paramasivam] and P.W.22 [Kali] have been employed in TVK Lodge, Tiruchendur.  Evidence of P.Ws.21 and 22 is to the effect of seizure of Ex.P29 Booking Register from TVK Lodge.  Handwriting found in the Booking Register of TVK Lodge, Tiruchendur are correlated to the specimen handwriting of Hussain [A4].  P.W.36 Handwriting Expert compared the sample handwritings of Hussain [S46 to 51 and 58 to 60] with the disputed handwriting and signature found in the entry [Ex.P81] and opined that the questioned signature is that of the person [A4] who had given the sample handwritings in Ex.P86.  The entry in Ex.P81 reads as under:-
Room No.22
R.Subramani
.....
MGR Nagar,
Chennai.
41. Ex.P18 is the Lodge Booking Register of Hotel Bluse Star, Tirunelveli.  On 25.10.2001, Ex.P82 entry has been made, which reads as under :-
K. NATARAJ
22, Rangabashyam Street,
Saidapet,
Chennai
Sd/- K. Nataraj

P.W.36 Handwriting Expert had assigned Q15 & Q16 to Ex.P82, the above questioned writings.  The sample handwriting and signatures collected from Hussain [A4] has been marked as S46 to S50 and S58 to S60.  P.W.37 Handwriting Expert had opined that the person who had written sample handwriting and signature, which are marked as S46 to S50 and S58 toS60, had also written those handwriting and signature, which are marked as Q15 and Q16.

42. Ex.P19 is the Lodge Booking Register of Tiruchendur Murugan Temple Devasthanam.  Handwriting and signatures found in Exs.P19 and P27 Booking Register of Tiruchendur Murugan Temple Devasthanam are correlated to the specimen signature of Tamizhselvan [A5] found in Ex.P85 [sample signatures S24 to 45].  P.W.36 Handwriting Expert opined that the person who had written the sample signatures in Ex.P85 must have been written the entries [Ex.P20] in Ex.P19.  Entries in the Lodge Booking Registers coupled with the evidence of Handwriting Expert would establish presence of A4 [Hussain]; A5 [Tamizhselvan] and A8 [Sethu] in Tirunelveli and Tiruchendur thereby strengthening the evidence of P.Ws.1 and 2.


43. P.W.1 has stated that on 26.10.2001 Shanthakumar was taken in Tata Sumo car bearing registration No. TN-09 Q 1310 from Karaiyiruppu culvert and Tata Sumo car bearing registration No.  TN-09 Q 1310 proceeded towards Kodaikanal.    Evidence of P.W.1 that Tata Sumo car bearing registration No.  TN-09 Q 1310 proceeded towards Kodaikanal is substantiated by the fact that Tata Sumo car bearing registration No.  TN-09 Q 1310 was found nearby Kodaikanal.

44. These entries in the different registers indicate about the stay of some of the accused persons at Tirunelveli and Tiruchendhur on the dates indicated by P.W.1 and P.W.2.  As a matter of fact, even one of the accused, namely, Accused No.4, apparently stayed in T.V.K. Lodge, Tiruchendhur, under an assumed name.  These materials, which are admissible in evidence, have considerable relevance as observed by the Supreme Court in 2001 SCC (Cri) 235 (MANISH DIXIT AND OTHERS v. STATE OF RAJASTHAN).

45. Bill book [Ex.P32] containing bill No.51 385 was seized by the Investigating Officer.  Bill No. 51 385 in Ex.P32 reflects that Tata Sumo car bearing registration No.  TN-09 Q 1310 filled up fuel at Palani on 26.10.2001.  P.W.25 Manikandan who worked in the Perol bunk who was to speak about filling up fuel in petrol bunk was turned hostile.  However, P.W.25 admitted the bill book having seized from the petrol bunk.  But P.W.25 had stated that his owner has not taken on lease the petrol bunk in Kodaikanal.  Though P.W.25 was declared hostile, it does not completely efface his evidence.  The testimony of such a witness has to be assessed to the effect of seizure of bill book which contains entry relating to Tata Sumo car bearing registration No.  TN-09 Q 1310 filling up fuel at Palani on 26.10.2001.    Judicial notice can be taken of the fact that Palani is not long distance away from Kodaikanal.  Court is not precluded from taking into account the Bill book Ex.P32 and evidence of P.W.25 that Investigating Officer had seized the bill book from the petrol bunk.  In our considered view that  Tata Sumo car bearing registration No.  TN-09 Q 1310 filling up fuel on 26.10.2001 at Palani  as reflected in Ex.P32  Bill book is a relevant fact which strengthens the evidence of P.W.1.

46. Learned counsels appearing for the appellants have submitted that the evidence of P.W.1 and P.W.2 should be discarded on account of several contradictions and embellishments.  The contradictions which have been highlighted before us are all relating to minor details which do not at all affect the substratum of the prosecution case.  When evidence is taken after a long lapse of time and that too in course of two separate trials, some minor contradictions and some minor embellishments here and there would be natural and that cannot be a ground to discard the entire prosecution case.

47. By and large, a witness cannot be expected to possess a photographic memory to recall the details of the incident and the actual words uttered.  It is not as if a video tape is replayed on the mental screen.  Power of observation and retention differ.  By and large, people cannot recall the words heard by them in the conversation.  They can only recall the main purport of conversation.  It is unrealistic to expect the witness to be a human tape recorder to re-produce the same words at all times.

48. In (1981) 2 SCC 752 = AIR 1981 SC 1390 (STATE OF RAJASTHAN v. SMT. KALKI), the Supreme Court has observed as follows :-

8. . . . In the depositions of witnesses there are always normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. . . .

49. All discrepancies in the testimony of a witness which do not create infirmity in the prosecution case  are not necessarily fatal in every case.  In AIR 1985 SC 48 [STATE OF U.P. v. M.K. ANTHONY] the Supreme Court has held as follows:-
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth.  Once that impression is formed,, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, draw backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.  Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.  If the Court before whom the witness gives evidence had the opportunity to form  the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trival details.  Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals.  Cross examination is an unequal duel between a rustic and refined lawyer.  . . .

50. In 1988 (Supp) SCC 241 (APPABHAI AND ANOTHER v. STATE OF GUJARAT), the Supreme Court observed :-

13. . . .The court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. . . 

51. In (1999) 8 SCC 649 (RAMMI v. STATE OF MADHYA PRADESH), the Supreme Court observed :-

24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

52. In the instant case, the trial Judge has tested the evidence of PW1 on the touchstone of consistency with tenor of the case.  Learned Addl. Sessions Judge who had an opportunity of observing the demeanour of PW1 and PW2 rightly held that the discrepancies and contradictions would not affect their credit worthiness and consistency.  Evidence of PW1 is not be disbelieved on the trivial inconsistency pointed out by the learned counsel for the appellant.  It is also to be noted that despite of grilling cross examination, PW1 gave consistent version of the occurrence on various dates which would ensure that she is a truthful witness.  The little variations here and there reflect a person's natural tendency to be incoherent and may be a little inconsistent because of the surcharged environs in a court room.  It is only a thoroughly tutored witness who can speak and repeat the same words in the same sequential consistency and monotony and not a natural witness.  Thus we find no discernible reason to discard the prosecution evidence.

53. Some arguments have been advanced by contending that the evidence of P.W.1 and P.W.2 do not clearly establish that Accused No.1 had asked the other accused persons to kill Santhakumar.  It  is of course true that there is no categorical consistent evidence that at the time when the deceased was forced to go in the vehicle in the company of other accused persons Accused No.1 had given clear instruction to other accused persons to finish Santhakumar as the words used by him are susceptible of being understood and interpreted in different manner.  This, however, in our considered opinion, is not of much significance in view of the previous conduct of Accused No.1 when he had apparently instructed Accused No.2 to exterminate the deceased.  In this context, we have already referred to the fact that on 21.10.2001, the deceased Santhakumar had contacted P.W.1 over telephone and had conveyed that Accused No.2 had been given Rs.5 lakhs by Accused No.1 to exterminate Santhakumar and Accused No.2 taking pity and sympathy had left him and asked him to go away and Accused No.1 had berated Accused No.2 as the latter had allowed Santhakumar to escape on earlier occasion.

54. Statement  of the deceased over phone with regard to one of the circumstances of the transaction which resulted in his death is relevant under Sec.32 of Indian Evidence Act.  In 1984 SC 1622 : 1984 Cri LJ 1738 (SHARAD v. STATE OF MAHARASHTRA), one of the propositions laid down by the Supreme Court there is this:


"Section 32 is an exception to the rule of hearsay and makes admissible the statement of a person who dies, whether the death is homicide or a suicide, provided the statement relates to the cause of death, or exhibits circumstances leading to the death.  In this respect, as indicated above, the Indian Evidence Act, in view of the peculiar conditions of our society and the diverse nature and character of our people, has thought it necessary to widen the sphere of S.32 to avoid injustice."

55. In (1987) 1 Ker LT 928 : 1988 Cri LJ 107 Justice K.T. Thomas.J (as his Lordship then was) observed that the Supreme Court in AIR 1984 SC 1622 : 1984 Crl LJ 1738 (cited above) adopted the interpretation that the expression "any of the circumstances of the transaction which resulted in his death" is wider in scope than the expression " the cause of his death".  In the light of the said decision of the Supreme Court, motive factor available in the statement of the deceased cannot be discarded as a remote circumstance, if it is otherwise intimately connected with the circumstances of the transaction which resulted in his death.

56. On behalf of the accused, it was contended that statement of the accused cannot be admitted under Sec.32 of Indian Evidence Act unless it relates to the actual transaction which resulted in death and not to previous events which are not part of the same transaction.

57. Section 32 (1) of the Evidence Act renders a statement relevant which was made by a person who is dead in cases in which cause of his death comes into question.  But its admissibility depends upon one of the two conditions:  Either such statement should relate to the cause of his death or it should relate to any of the circumstances of transaction which resulted in his death.  The collocation of the words in section 32(1) "circumstances of the transaction which resulted in his death" is apparently of wider amplitude than saying "circumstances which caused his death".  There need not necessarily be a direct nexus between "circumstances" and "death".  It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased.  Such statement would also fall within the purview of section 32 (1) of the Evidence Act.  In other words, it is not necessary that such circumstance should be proximate, for, even, distance circumstance can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in death.  [Vide Rattan Singh v. State of Himachal Pradesh, AIR 1997 SC 768 : 1997 Cri LJ 833]

58. No doubt, it is true that phrase "circumstances of transaction" cannot be accorded a wide construction because it would lead to hearsay being too readily admitted.  The circumstances must have some proximate relation to the actual occurrence.  The natural meaning of the words "circumstances of the transaction" does not convey limitation that the statement must be made after the transaction has taken place or that the person making it must be at any rate near death.  As held by the Supreme Court in  A 1996 SC 2766 : 1996 Cri LJ 4002 [State of UP v. Ramesh Prasad Misra] Section 32(1) is wide enough to include statement of the accused regarding motive behind the criminal act in question.

59. Statement of the deceased that A2 was given Rs.5 lakhs by A1 to 'finish him off' and that A2 taking pity and sympathy has left him unharmed is the statement made by the deceased as to "circumstances of the transaction" which resulted in death.  The evidence of PW1 as to the statement of the deceased is relevant u/s.32 (1) of Indian Evidence Act which is a strong piece of evidence militating against the accused.

60. The statement of Santhakumar conveyed to P.W.1 over telephone to the effect that Accused No.1 had instructed Accused No.2 and others to exterminate Santhakumar has received more than ample corroboration from the conduct of A1, who had sarcastically berated A2 in front of others including P.W.1 and her husband when he discovered that the latter was still alive.

61. A question may arise that if A2 had been instructed by A1 to exterminate Santhakumar, then why was he let off?
It is very difficult to fathom the inner thoughts or feeling of any person.  It may be that Accused No.2 had some soft corner for P.W.1 and/ or her husband or it may be that Accused No.2 might have thought that with severe threat given Santhakumar may go away to any outside place thus paving the way for marriage of Accused No.1 with P.W.1 and it would be more prudent for Accused No.2 to spare  Santhakumar instead of taking the risk of becoming a perpetrator of a heinous crime.  It is to be noticed that in the cross-examination of P.W.1, no serious question had been raised on this aspect of the evidence.  The contention to discard such part of the statement of P.W.1 is therefore not acceptable.

62. It was also submitted that it was unnatural on the part of the deceased and P.W.1 to reappear before A1.  The evidence of P.W.1 discloses that the deceased wanted P.W.1 to run away so that both could go to some other place.  However, P.W.1 persuaded the deceased to return so that both could seek for forgiveness from A1.  It is obvious that the overwhelming love for each other persuaded them to take the risk.

63. Counsels appearing for the Appellants submitted that prosecution had not examined many of the relevant witnesses and therefore, adverse inference could be drawn and the evidence of P.Ws.1 and 2 should not be accepted.  In particular, they have submitted that father of P.W.1 and uncle of P.W.1 were allegedly present and therefore, they should have been examined.  Those two persons would have replicated what was already stated by P.Ws.1 and 2.  There would not be anything new in their statements.   Law is well settled that proof in criminal case does not depend upon the quantity of evidence, but depends upon the quality of evidence adduced.  In such view of the matter, in our considered view non-examination of father and uncle of P.W.1 was immaterial.


64. It was also submitted that Chandrasekaran and Advocate Yannai Rajendran should have been examined by the prosecution.  From the evidence of P.W.1, it is apparent that Chandrasekaran and Advocate Yanai Rajendran were camp followers  of A1 and they were trying to espouse the cause of A1 and protect him.  In fact, the statement indicates that P.W.1 and her husband were made to sign certain statement which had been prepared by Advocate Yannai Rajendran.  Under such circumstances, we fail to understand as to why it was required of the prosecution to examine such persons.  If at all any statement of such persons would have been helpful the accused, the accused persons could have examined them.

65. Submission was also made that Asst. Commissioner of Police, Ramachandran should have been examined.   Evidence of Ramachandran, Asst. Commissioner of Police would have been of no particular consequence.  Moreover, there is no suggestion that any of these witnesses have been deliberately withheld by the prosecution.  Therefore, we do not accept submission made by the counsels for the Appellants.

66. It was contended that investigation was not properly done and that statement of important witnesses recorded under Sec.161 Cr.P.C. reached the Court along with Charge sheet and documents.  It was further submitted that there were other lapses in the conduct of Investigation.

67. If potholes were to be ferreted out from every "minor" loophole in the process of investigation, no prosecution, possibly, can be found to be free from some or other defect.  The basic and the paramount question is whether any lapses in the investigation has resulted in miscarriage of justice by prejudicing the accused persons to any significant extent.  

68. It is fairly well settled that any omission on the part of the Investigating Officer cannot go against the Prosecution in a case of this nature.  Interest of Justice demands that every 'act' or 'omission' of the Investigation Officer need not be taken in favour of the Accused, for that would amount to giving premium for the lapses of the Investigation.  Story of Prosecution is to be examined dehors such omissions unless such omissions have the tendency to prejudice the accused.

69. Learned counsels appearing for the appellants have also argued that P.W.1 was obviously aware of the death of her husband as some religious rites had been performed in the presence of a priest which are only performed when a woman becomes widow.  It is doubtful if P.W.1., who was hardly aged about 22 to 23, was aware of the implications of such rites.  It is of course true that P.W.2 has stated that she suspected that some ceremonies had been performed indicating about the death of Santhakumar, but she has categorically stated she did not tell her daughter at that time that ceremonies were performed to indicate that her daughter had become widow.
On the other hand, the presence of the Accused No.1 along with his second wife, who was an active participant in such ceremony, as stated by P.W.1., can be used as a circumstance against Accused No.1 as it gives an indication that on the said date, when such ceremony was performed, at least Accused No.1 had received information about the death of Santhakumar.

70. The next circumstance relied upon by the prosecution is that the death of Santhakumar was homicidal in nature.  The trial court by referring to the evidence of the Doctor, who conducted the post-mortem and referring to the post-mortem report, had opined that death was homicidal in nature.


71. Learned counsels appearing for the appellants have submitted that there are several reasons as to why the prosecution case that the death of Santhakumar was homicidal should be discarded.  It is contended by them that there is no acceptable evidence to come to the conclusion that dead-body of the unknown person which was accidentally discovered by the forest officials on 31.10.2001 was in fact that of Santhakumar.  In this connection, it is further contended that, at any rate the evidence relating to cause of death is thoroughly unsatisfactory in view of the various loopholes in the post-mortem report.  Before, however, coming to the question of cause of death, it would be more appropriate to concentrate on the identity of the body which was found on 31.10.2001.

72. From the evidence of P.W.27 and P.W.28 along with Ex.P-44, which is the FIR in Cr.No.559/2001, it is apparent that the dead-body of an unknown male person was discovered by the forest officials.  Soon after stumbling upon the dead body, FIR Ex.P-44 was lodged and the police official came there for investigation.  It is stated that photographs were immediately taken.  Subsequently, P.W.1 and P.W.2 were called to Kodaikanal to identify M.Os.11 to 14, which were taken by the police after discovery of the unknown dead-body as that of the deceased Santhakumar.  P.W.1 had also identified M.O.5 Shirt, M.O.6 Pant, M.O.8 Black belt as the wearing apparel of her husband Santhakumar.  The authenticity and genuineness of the photographs were challenged by raising the following contentions :-
(a) There is a black linear patch in M.O.14 photograph.  The other photographs M.Os.11 and 12 also contains similar small linear patches.
(b) No Investigation Officer seized the photographs.  PW42 has stated that PW32 had handed over the photographs by coming to Velachery P.S. on 15.2.2001.
(c) According to the Investigation Officer PW42, M.Os.11 to 14 were misplaced in the station and he was not able to produce the same for quite sometime and the photographs were produced during the trial.

73. PW29 S.I. of Police has stated that he gave the film roll to one Joe of Apollo Studio, Kodaikanal for developing and printing the negatives of M.Os.11 to 14.   As per the evidence of PW39 [Moideen], there was no Joe working in Apollo Studio.  

74. During investigation, the statement of P.W.39 was not recorded by the Police.  There was no explanation given by the prosecution for the non-examination of PW39 during investigation nor there is explanation as to how he was traced and examined in Court as PW39. Therefore, stand of the Appellants is that photographs are re-taken and M.Os.11 to 14 was a re-take and there seems to be manipulation of photographs in Kodaikanal.

75. To substantiate the contention that M.Os.11 to 14 are re-take and that there are manipulations in the photographs, much reliance is placed upon the evidence of DW1 Chandrasekar who is a retired Director of Forensic Science Lab, Chennai.  In his evidence, DW1 has stated that he has got vast experience in Forensic Science Department and he has opined that M.Os.11 to 14 are re-taken photographs.  Much weight cannot be attached to the evidence of DW1 as the photography involves expertise and technique.

76. PW39 Moideen developed the negative and the photographs of the body found in 'Tiger-Chola' are M.Os.11 to 14.  Explaining black linear patches, PW39 Moideen has stated in his evidence that  M.O.19 film is of 35mm.  He has further stated that when this type of film roll is kept in the machine to take out the print, if the corners of the film do not fix properly or if it has not been fixed properly, then the unexposed portion would be printed in black colour.  While taking photo prints using the machine, if the film had been kept properly, then the black border in the print would not have occurred.  PW39 has stated that as he did not properly fix the film edges in the machine and took the prints, black borders are seen in the corners.  This part of evidence of P.W.39 has not been shaken in any manner in cross-examination.

77. In his evidence PW29 S.I. of Police has stated that one Farooh and one Mahendran are the other two persons working along with him in Apollo Colour Lab.  In his deposition, PW29 has stated that one Joe of Apollo Studio developed the photos.  PW39 Moideen who is working in Apollo Studio has, however, stated that no person by name Joe worked in Apollo Colour Lab.  Laying emphasis upon the contradiction, much arguments were advanced as to who has developed the photos.  Due to passage of time, PW29 S.I. of Police might not have exactly remembered the name of the person who developed the photos.  Any such omission or any contradiction would not affect the genuineness of the photographs.

78. Learned counsels for the appellants have submitted that P.W.29, who was investigating into the matter relating to discovery of the unknown dead-body at Kodaikanal was not available as he had gone to Delhi for attending training and his signatures have been forged in many documents such as Mahazar, requisition, etc.  According to the learned counsels the above conduct clearly indicates the extent to which the police had stooped in order to nail the blame on the accused persons.

79.The witness in his statement has categorically stated that the signatures are his signatures.  Counsels for the appellants have invited us to compare the signatures and other admitted signatures of Victor Immanuel to come to a contrary conclusion.  It is no doubt true that under Section 73 of the Evidence Act, the Court is empowered to compare any disputed signature.  But, as is well known, such a power is to be exercised very cautiously as there is always inherent danger of basing a conclusion on the basis of mere comparison, excluding other relevant materials on record.     When P.W.29 himself had admitted his signature in the Observation Mahazar and Plan, we do not think, it is necessary for us to delve into this aspect.  Under these circumstances, we do not consider it appropriate to compare the signatures ourselves for coming to a different conclusion.

80. In the trial court, with the permission of the Court, negatives were printed by the Defence.  Photographs printed from the roll were marked as Defence M.Os.3,4 and 5.  Stand of the appellants is that one such photo [Defence M.O.3] is re-take of a photo which according to the prosecution came to their hands only on 19.12.2001.  On behalf of the Appellants, it was mainly argued that because of the modern developments in the photography simulation is possible and hence it would be unsafe to rely on these photographs for identifying the deceased.

81. Through DW1, accused tried to bring home the point that M.Os.11 to 14 are re-taken from the photographs which were already taken in some other environment.   In our considered view the mere suggestion that photographs are the re-take photographs will not be of any help to the Defence.  Learned counsels for the appellants have not been able to point out as to (i) where from photographs were taken; (ii) why should there be retaking of such photographs.  No plausible submission has been made on this score, save and except by contending that the photographs produced by the prosecution were "retaken".

82. It is to be noted in this context that the Senior Counsel for the Appellants 2 to 9 have submitted that such "retake" photographs was not  primary evidence and, therefore, not admissible.  However, no such objection regarding admissibility in respect of secondary evidence was taken in the trial court and such photographs have been marked without objection.  Therefore,  it is too late in the day for raising a contention that such photographs could not have been marked as Material Objects.  Similarly learned Senior Counsel for Accused No.1 had simply submitted that photographs were re-taken photographs without raising any specific contention as to how, even if those photographs were retaken, had affected the prosecution case or had caused prejudice to the accused.

83. Photographs are mainly to bring home the scene of occurrence or where the body was found.  Though there are black linear border in M.O.14 photo and small such black linear in other photos, keeping in view the explanation of PW39 Moideen, in our considered view, M.Os.11 to 14 photographs do not suffer from any distortions as suggested by the accused.

84. Photographs of scene of occurrence or where the body was found are extremely useful to analyse the evidence and to ascertain the truth.   Proper photographs of the scene bring home the scene/place in the Court room.  Still photographs are better than the verbal or written descriptions.  When the body found in 'Tiger-Chola' was unidentified, the photograph was the best evidence.  Rightly, PW29 S.I. of Police had used the camera and had taken photographs which were later developed by PW39 Moideen.

85. In the initial stage of investigation photos were shown to PW1 and PW2.  It is seen from other photos [M.Os.75 to 77] that on seeing M.Os.11 to 14 photos, PW1 and PW2 have been grieving.  In Column 7 of Ex.P47  Inquest Report,  lying of the body has been narrated as noted below:-

"The dead body was seen ..... in the place called 'Tiger-Chola' in a pit about 20 ft. to the left side of the road, with the head downwards and face facing upwards horizontally, with the hands at the sides and the legs apart, face and eyes eaten by maggots, wearing blue and white checked coloured full sleeved shirt and a light brown coloured pant."
The descriptions of lying of the body more or less correlated to the dead body as seen from the photographs M.Os.11 to 14.  In our considered view, genuineness of M.Os.11 to 14 cannot be doubted on the ground of delay in producing them before the Court.

86. P.W.1 and P.W.2 also identified the wearing apparels which the deceased was found wearing when it was discovered by the forest officials.  The Shirt, Full Pant and the Belt were identified by P.W.1 and P.W.2 and marked as M.O.5, M.O.6 and M.O.8.

87. Contentions have been raised that in the FIR, dated 20.11.2001, relating to the alleged abduction of Santhakumar  on 26.10.2001, P.W.1 had never stated about the colour of the pant, colour of the shirt and the belt  worn by the deceased and similarly she had not stated about any scar mark on the belly and, therefore, the identification made by P.W.1 cannot be accepted. Learned counsels for the appellants have raised serious doubt relating to identification of M.O.5 - Shirt, M.O.6 - Pant and M.O.8 - Black-belt, which were found when the dead-body was discovered.

88. On 20.11.2001, when the FIR relating to the incident dated 26.10.2001 was made, P.W.1 was not known as to whether her husband was dead or alive.  As a matter of fact, her evidence discloses that she was still hopeful like the previous occasion her husband might come back.  Under such circumstances, particularly when P.W.1 was not aware about any foul play resulting in death of the deceased, non-mention of the colour of the pant, shirt and belt worn by the deceased was hardly of any consequence.


89.  In her evidence, PW1 has stated that on 02.12.2001 she had gone to Kodaikanal police station where she has identified M.O.5 blue coloured checked shirt, M.O.6 pant and M.O.8 black coloured belt. Identification of M.O.5 Shirt, M.O.6 Pant and M.O.8 Black coloured Belt by P.W.1 strengthens that the body recovered from 'Tiger Chola' in connection with Cr.No.559/2001 of Kodaikanal Police Station is that of Santhakumar.

90. As pointed out earlier, M.O.5 is the blue coloured white checked full sleeved shirt and M.O.6 is the sandal coloured pant.  In Col.7 of Ex.P47 Inquest Report, M.O.5 shirt has been described as a Blue colour white checked full sleeves shirt with a bran-brown coloured pant (g[Sf; fyh;  bts;isf; fl;lk; nghl;l KGf;if rl;ila[ld; jtpl;Lf;fyh; ngz;Lk; cs;sJ).  Originally it was written as  wood colour (ku fyh;) and the same was later struck off and written as Blue colour (g[S fyh;). In Ex.P45 observation mahazar, M.O.5 and M.O.6 have been described as the body was found clad in brown and white  checked polyster shirt and bran-brown coloured pant. On the inside of the shirt collar, a label "Power Shirt" and in the hip side of the pant,  a label "Lablock"were stitched  (clypd; kPJ gput[d; fyh; kw;Wk; bts;is epw fl;lk; nghl;l ghyp!;lh; rl;ila[k;. jtpl;L fyh; ngz;Lk; mzpe;J fhzg;gLfpwJ/  rl;ilapd; fhyhpd; cl;gf;fk; @gth; c&h;l;@ vd;Dk; nygpYk;. ngz;od; ,Lg;g[ gFjpfspy; @nyg;fhf;@ vd;Dk; nygpYk; ijf;fg;gl;Ls;ssJ).

91. Drawing Court's attention to the discrepancies in Exs.P45 and P47, it was contended that there is great variation in the description of M.O.5 shirt which would vitally affect the prosecution case. We have carefully examined Exs.P45 and P47 and also M.Os.11 to 14 photographs.  In our considered view, nothing significance could be drawn against the prosecution case.  The reason being, Ex.P45 observation mahazar and Ex.P47 Inquest Report were prepared on 31.10.2001 at 19.00 hours.  That means Exs.P45 and P47 were prepared during night time at 7'O clock.   When the light being focussed on the body, quite possibly that the blue colour with white checks was seen to be 'brown colour shirt' and so described.  The alleged discrepancy in the description of M.O.5 [shirt] does not in any way affect the investigation aspect and recovery of M.O.5 shirt in Cr.No.559/2001 of Kodaikanal P.S.  In fact even a bare look of the photographs M.Os.11, 12 and 14 indicates that checked shirt was of brownish and bluish tinge.    M.O.11, M.O.12 as well as M.O.74, they clearly show that the colour of the Shirt is 'Blue, White and Brown colour'.  Therefore, slight discrepancy in describing the colour of the shirt ultimately does not affect the prosecution case.

92. As we have pointed out earlier, in Ex.P48  Form-95, the date of despatch of M.Os.5, 6 and 8 was described as 04.11.2001.  From the evidence of PW1, it emerges that she has identified M.Os.5, 6 and 8 on 02.12.2001.  On behalf of the accused, it was mainly argued that when M.Os.5, 6 and 8 were said to have been despatched on 04.11.2001 and while so, it would not have been possible for PW1 to have identified M.Os.5, 6 and 8 on 02.12.2001 and the identification of M.Os.5, 6 and 8 by PW1 is doubtful on this score also.

93. In the light of the above submissions, we have carefully examined Exs.P23 and P48.  We found that M.Os.5, 6 and 8 were produced before the Tahsildar on 04.12.2001.  It was produced before the Metropolitan Magistrate on 15.12.2001 and they were asked to be produced later.  From Exs.P23 and from the deposition of PW18, Court Interpreter, it is seen that on 27.12.2001, M.Os.5, 6 and 8 were received by the Metropolitan Magistrate Court.  While so, there is no force in contending that M.Os.5, 6 and 8 were not available on 02.12.2001 for being identified by PW1.

94. Drawing Court's attention to the evidence of PW42  Investigating Officer, it was contended that there was no record to show the receipt of M.Os.5, 6 and 8 either on 04.12.2001 or on any other day.  It was therefore, contended that it would be highly unsafe to rely upon the evidence let in by the prosecution in respect of the articles M.Os.5, 6 and 8.  No doubt, there is no separate document showing the transfer of M.Os.5, 6 and 8 from Kodaikanal P.S. to Velachery P.S.  When the entire case pertaining to Cr.No.559/2001 was transferred to Velachery P.S. quite naturally Ex.P48 Form-95 must have been handed over to Velachery P.S..  As we have pointed out earlier, M.Os.5, 6 and 8 were produced before the Tahsildar, Kodaikanal on 04.12.2001.  When the entire case records in Cr.No.559/2001 was transferred to Velachery P.S., no separate document was required for re-seizure of M.Os.5, 6 and 8 by Velachery P.S.  Identification of M.O.5 [Shirt], M.O.6 [Pant] and M.O.8 [Belt] as that of the deceased Santhakumar by PW1 is a vital piece of evidence regarding the identification of the dead body.

95. P.W.1 has also purported to identify the dead-body itself after it was exhumed.  Learned Counsels for the appellants have raised several contentions relating to unidentified dead-body, which was first discovered in Tiger-Chola and subsequently buried in Hindu burial ground at Kodaikanal.  They had contended that the subsequent exhumed dead-body is of some other person.  The evidence on this aspect should be carefully analysed.
Contention of the Appellants is that identification of the body was not established beyond reasonable doubt.  Stand of the Appellants is that the exhumed body was in advanced stage of decomposition and therefore, identification was not possible after exhumation.

96. After post-mortem PW35 Dr.Sivakumar had entrusted the body to post-mortem Constable PW32 [HC Sebashtiyan] for burial.  PW32 Head Constable along with PW33 [Anithalai  burial ground guard] and Scavengers Sailathunathan and John have buried the body in Hindu Burial Ground.  On the direction of  Tahsildar, the body was exhumed on 01.12.2001 and PW32, PW33 and the said Scavengers Sailathunathan and John have shown the place to Tahsildar where the dead body was buried.

97.  Stand of the Appellants is that body buried on 02.11.2001 was not proved to be one exhumed subsequently.  According to the Appellants, the link evidence of PW32 and PW33 for identification of the body is not sufficient to prove that the body exhumed was the one buried on 02.11.2001.  In support of their contention, the accused interalia made the following submissions:-
(a)  PW32 and PW33 and one Sailathunathan have not put any identification marks to fix the place of burial and PW32 (Head Constable  Sebastiyan) has not prepared any sketch or mahazar regarding the place of burial.
(b)  At the time of burial, there is no evidence to show that the body was found with any under garments and buried with blanket plastic sheet.

98. In his evidence PW32 has stated that they purchased a white cloth and the dead body was wrapped in that cloth and then it was buried.  PW32 was confronted as to whether he has prepared any mahazar so as to identify the place at a later point of time.  On behalf of the accused, it was contended that PW32 had not stated in his Section 161 (3) Cr.P.C. statement as to how the body was wrapped in a white cloth or a plastic sheet.

99. As is well known, every omission in previous statements before the police under Section 161 Cr.P.C. may not amount to contradiction.  The fact that such witnesses had omitted to state anything specifically before the police that they had put some marks of identification is not a serious omission affecting the credibility of their statements in Court.  Moreover, it is not every day that a person in-charge of the burial ground is called upon to bury persons dying unnatural death and, therefore, it would not have been difficult for them to remember where they had buried the dead body.  We have no doubt that the dead body which was found by the Forest Officials was the same dead-body which was exhumed.

100. The learned counsels for the appellants have also submitted that the dead body which was exhumed was wearing an underwear; whereas the evidence of persons who buried the dead body, which was found by the Forest Officials, had stated that after postmortem there was no cloth covering the dead body except a sheet.  The above contradiction, in our considered opinion, is too minor to jettison the sworn testimony of the witnesses who have categorically stated that the dead body which was handed over after post-mortem was buried by them and was subsequently exhumed.

101. In his evidence, PW35 Dr.Sivakumar has stated that the place where the body was exhumed, one wooden stick was erected and one small stone was placed.  In his evidence, PW32 has stated that he asked PW33 to place some identification.  PW33 has also stated that for identification, he has erected one wooden stick and placed one small stone.  In their statements before the police under Section 161 (3) Cr.P.C., PW32 and PW33 have not spoken about the specific identification marks of place of burial i.e. erection of wooden stick and placing of stone.  On behalf of the accused, much arguments were advanced on this aspect and contended that the prosecution has been improving its version.  Earlier, the body was buried on 02.11.2001.  Within the interval of one month, the body was exhumed on 01.12.2001.  Therefore, the place where an unidentified body was buried must have been fresh in the mind of PW32 and PW33.  Such minor omission in their statement before the police regarding erection of stick or placing of small stone would not affect the evidentiary value of PW32 and PW33 as to the burial of the body.  In our considered view, non-mention of those trivial aspects would not affect the evidentiary value of PW32 and PW33 nor the core aspect of burial of the body.

102. PW38 Dr. Meiyazhagan, District Police Surgeon and Professor of Forensic Medicine, Madurai Medical College  who conducted re-postmortem after exhumation has stated that both the hands of the dead body were seen severed at wrist.  PW38 has stated that, while conducting post mortem on the dead bodies of unidentified persons, it is the usual practice for the Surgeon to cut the hands from the wrist at the instance of Investigating Officer, for the purpose of ascertaining  identity of the person and for registration of  finger prints.

103. PW35 Dr. Sivakumar who had earlier conducted post-mortem has not stated anything about the amputation of the hands from the wrist.  Much arguments was advanced on this aspect that while PW35 has not stated anything about the amputation of both hands from the wrist.   Non-mention of amputation of both hands from the body of the deceased is of no significance.  As pointed out earlier, PW38 Dr. Meiyazhagan has categorically stated that it is the usual practice for the Surgeons to cut the hands from the wrist at the instance of the Investigating Officer while conducting the post-mortem on the bodies of unidentified persons.  Being the usual practice, perhaps PW35 Dr. Sivakumar might not have indicated the same in Ex.P75 post-mortem certificate.  It is significant to note that no specific question was put to him on that aspect.


104. Finger print of unidentified person should be taken because their finger prints may lead to their identification.  Problem of collection of prints from the dead body varies under different conditions.  As per the usual practice hands were required to be amputated from the wrist.  Being the usual practice, perhaps PW35 Dr. Sivakumar has omitted to mention about cutting the hands/fingers from the wrist.

105. In our considered view that does not affect the connectivity of the exhumed body from the body buried on 02.11.2001.  There is no force in the contention that the exhumed body was not proved to be the dead-body discovered on 31.10.2001 and buried on 02.11.2001 after post-mortem by PW35 Dr. Sivakumar.  The material with which the body was wrapped and the place of burial are only secondary.  Any omission or contradiction on these secondary aspects would not affect the core of the prosecution case in respect of identification.

106. In the above connection it may also be pointed out that P.W.1 identified the dead-body after it was exhumed by referring to the mark available on the abdomen portion.  P.W.19, who is the brother of the deceased, has stated in his chief-examination that he was unable to identify the said body as that of his brother and he was declared hostile and cross-examined by the prosecution.  P.W.19 has resiled from his earlier statement.  However, P.W.19 has clearly admitted that his brother had an operation.  Therefore, the statement of P.W.1 regarding identification of the dead-body by finding a scar mark on the abdomen appears to be trustworthy.  Moreover, P.W.19 witness has stated that the photographs M.Os.11, 12 and 14 appear to be that of his brother Santhakumar.

107. The identity of the dead-body, which was found on 31.10.2001, was sought to be proved through Super Imposition Test, which was done by P.W.34, who was working as Assistant Director in the Anthropology Division, Forensic Science Department.  Admittedly he has obtained Doctorate in Anthropology and working for 12 years.  He had undergone several training courses and had written two research works on the subject which were published in International Science Journals.  He had undertaken research in more than 600 skulls and had submitted reports.

108. PW34-Dr. Jeyaprakash, the then Assistant Director of Anthropology Division, Forensic Sciences Department has conducted Super Imposition Test on the basis of three methods; viz., (i) Video Super Imposition; (ii) Visual Observation; and (iii) Dental Trait Super Imposition.

109. By the Super Imposition Test, the image of the skull was superimposed on the image of the facial photographs of the male in items 2 to 6 [M.Os. 22 to 25] using the Computer Aided Superimposition Device for demonstrating the fitness of the former in the latter.

110. PW34 Dr. Jeyaprakash adopted the technique viz., the flexion/extension factor (forward/backward tilt and the rotation factor were calculated from the 'life size' enlargement of the face of the male and were used for proper orientation of the skull.  After orienting the skull in accordance with the posture of the face in the photograph, the skull and the 'life size' enlargement of the corresponding face photograph were focussed using two different CCD Video Cameras.  The life size images of the skull and the face of the male were brought out on the computer and T.V. monitors and superimposed.

111. During superimposition, PW34 Dr. Jeyaprakash has made the following observation:-
a) The anthroposcopic landmarks in the face, items 2 to 6 and those on the skull, item 1 fitted well.
b) The outline of the face in items 2 to 6 and the outline of the skull, item 1 were found to be in fair congruence with due allowance for flesh thickness.

On the above observation, PW34 Dr. Jeyaprakash opined that the skull item 1 [M.O.20] belonged to male individual seen in the photographs items 2 to 6 [M.Os.22 to 25].

112. In addition to Super Imposition Test, PW34 Dr. Jeyaprakash proceeded additional method of comparison of Dental Traits.  For identification, PW34 had taken up the front row of teeth found in the photographs [M.Os.22 to 25] and the front row of teeth found in M.O.20 skull.  By examination of Dental Traits, PW34 Dr. Jeyaprakash noticed that the edge of the upper teeth and the upper jaw found in the photographs [M.Os.22 to 25] are similar to the shape of the upper edge found in the skull [M.O.20].  PW34, inter alia noticed various similarities in the Dental Traits like embrasure spaces between the teeth and the shapes.   By the additional test of Dental Traits, PW34 opined that the skull could be accurately identified by matching through the examination of shape of row of teeth.

113. Assailing the evidence of PW34 Dr. Jeyaprakash and the Super Imposition Test, on behalf of the accused, it was contended that the visual comparison of skull and the photographs is vague and an inaccurate method.  It was therefore argued that three dimension object skull is sought to be compared with two dimension image photographs which is contrary to the principles.  The comparison of Dental Traits by PW34 was also attacked on the ground that Dental Traits can be assessed only by persons having special knowledge in Forensic Odentalogy.

114. To counter the evidence of PW34, the retired Director of Forensic Science Department was examined as DW1.  According to the Appellants, DW1 invented and adopted a different method which was universally accepted.  It was further argued that the method adopted by DW1 was accepted in the famous Auto Shankar's case reported in 1992 LW (Crl) 32 (JS) and the judgment was also exhibited as Ex.D5.

115. We have carefully examined the various tests and the opinion of PW34, Ex.P63 report, Ex.P64 laser print photos of deceased Santhkumar and Ex.P65 work sheet.   Visual comparison of skull and the photographs  comparison of three dimension object skull with two dimension image photographs is only one of the method of comparison of the skull with M.Os.22 to 25 photographs.  For adopting Video Super Imposition, in his report PW34 Dr. Jeyaprakash has elaborated upon the test adopted by him.

116. PW34 Dr. Jeyaprakash received M.O.20 skull with mandible.  PW34 requested for photographs and received one photograph i.e. M.O.21 through Gr.I Constable Suseelan [PW14].  Since, M.O.21 photograph did not have requisite dentition, PW34 sought for some more photographs and obtained M.Os.22 to 25.  The photographs were enlarged to 'life size' and compared with M.O.20 skull through Video Super Imposition test.  Various tests on the life size photographs enlarged by PW34 and the steps taken for comparison are clearly stated in Ex.P63 report together with Work sheet Ex.P65.  By examination of the evidence of PW34 Dr. Jeyaprakash, Ex.P63 report, Ex.P64 laser print photos of the deceased Santhakumar and Ex.P65 work sheet, there appears to be no distortion of truth.  We agree with the Court below that by Super Imposition Test, prosecution has established the identity of the body exhumed as that of the deceased Santhakumar.

117. Insofar as, identification of the skull by Dental Traits, on behalf of the accused it was contended that there are many lapses in comparison of dentition.  Placing reliance upon the evidence of DW1, it was contended that the Dental Traits can be assessed only by person having special knowledge in Forensic Odentalogy and that the identification by Dental Traits may not be a sure test for identification.

118. As we have pointed out earlier, PW34 Dr. Jeyaprakash has adopted the tests viz., (i) Video Super Imposition; (ii) Visual observation.  Only by way of additional test, PW34 has done the test of Dental Traits to confirm his opinion by other methods.  PW34 has also elaborated the basic principle and the distinct  similarities in the Dental Traits.  In view of the overwhelming evidence of PW34, we do not find any merit in the objection raised by the Defence.

119. On behalf of the accused, it was further argued that the Super Imposition method cannot be the only basis for positive identification.  In support of their contention, Defence has placed reliance upon the text book of Forensic Art and Illustration by Karen T.Taylor contains the opinion of Classman who has 20 years of experience in Anthropology and skeletal Ecology and has active, record of scholarly publication wherein it is stated as follows:-
" I have always considered video superimposition to be an exclusionary tool rather than one of positive identification.  There are too many variables that contain some measure of error, such as size, position, and distortion inherent in the video superimposition procedure which preclude the making of a positive identification.  Further more, for video superimposition techniques to be used a sole basis of a legally accepted identification, a series of detailed, systematic tests would need to be conducted to calculate the probability of error, that is, the likelihood that a determined match between photo and skull is actually misclassified.  It is more likely that video superimposition and other photo type comparisons will remain important tools to assist in the identification of unknown remains, but they will not be exacting techniques for making positive identification in the same ways as DNA and ante-mortem / post-mortem radiographic comparisons.

120. Reliance was also placed upon the opinion of Dr. Narayan Reddy's essentials of Forensic Medicine and Toxicology.   We have no doubt in our mind that Super Imposition Test cannot be the conclusive test for identification.  Super Imposition Test by itself may not conclusively establish the identification.  But in the instant case, Super Imposition Test is one piece of evidence relied upon by the prosecution to strengthen the evidence of PW1 and PW2.  Scientific evidence of PW34 Dr. Jeyaprakash as to the identification of the body exhumed amply strengthen the evidence of PW1 and PW2 and rightly accepted by the learned Additional Sessions Judge.  We do not find any reason to take a different view.

121. On behalf of the accused, it was contended that when identification of the exhumed dead body was uncertain, DNA would have been the evidence of certainty  to establish the identification and individualisation.  It was further argued that non-conducting of DNA test vitally affects the prosecution case.

122. We have no doubt in our mind that DNA [deoxyribonucleic acid] test provides its own advantageous.  Every cell in an individual's body contains identical DNA.  Fingerprints come only from fingers, but DNA can be found in blood, in urine, in feces, in saliva, in some hair, in the shed skin cells found in a facecloth or toothbrush  even in the sweatband of a hat.  Semen at rape scenes, saliva on the envelope of a ransom note, skin cells scraped onto a rope while tying a victim  all provide the opportunity for collection and analysis.   DNA, the physical material that we inherit from our parents when that one sperm finds that one egg, is absolutely individual  with one exception.  Identical twins form from one fertilized egg, so their DNA is identical.

123. It is not the case of the accused that father or mother of the deceased Santhakumar was alive to conduct DNA test.  Prosecution has examined PW19 Victor  brother of the deceased Santhakumar.  PW19 Victor is the elder brother of the deceased Santhakumar.  No answers were elicited from PW19 as to whether the parents  are alive or not.  In the absence of any evidence regarding availability of father and mother of the deceased Santhakumar, the defence is not right in contending that the prosecution ought to have conducted DNA test.  In any event, when the case of the prosecution has been well established by direct evidence of PWs.1 and 2 and other circumstances, we do not think non-conducting DNA test has vitiated the prosecution case.

124. The evidence of P.W.34 discloses that on doing Super Imposition Test, in his opinion the skull of the dead-body, which was found in Tiger-Chola on 31.10.2001 was that of the deceased whose photographs have been given for the purpose of comparison.  Even though lot of searching cross-examination had been made, P.W.34 has explained all the doubts raised.  Therefore, his opinion can be taken to be an additional factor for coming to the conclusion that the dead-body which was found on 31.10.2001 was that of the deceased Santhakumar.

125. Thus, from the evidence of P.W.1 and P.W.2, who have identified the photographs M.O.11, M.O.12 and M.O.14 as that of the deceased and also on the basis of the wearing apparel and even after seeing the dead-body after it was exhumed as corroborated by the result of the Super Imposition Test, it can be concluded that the dead-body, which was discovered by the forest officials within Tiger Chola of Kodaikanal was that of Santhakumar.

126. Now we have to hark back to the question whether his death was homicidal or accidental or even suicidal.
Based on the requisition dated 01.11.2001 [Ex.P73], P.W.35  Dr.Sivakumar, Assistant Surgeon, Government Hospital, Kodaikanal has conducted  post-mortem on 02.11.2001 at about 2.05 P.M. over the then unknown male dead body [Cr.No.559/2001] with 'early signs and symptoms of decomposition'.  PW35 Dr.Sivakumar noticed  contusions front and outer of right shoulder 12cm x 8cm and the greater horns of Hyoid bone as fractured.  After taking into consideration the viscera report [Ex.P74], PW35 Dr. Sivakumar has given his final opinion [Ex.P76] that the death was due to 'Asphyxia due to throttling'.

127. Based upon the requisition, PW38  Dr. Maiyazhagan  District Police Surgeon and Professor of Forensic Medicine, Madurai Medical College has conducted re-postmortem over the exhumed body.  PW38 also found antemortem injuries viz., (1) dark coloured contusion front of right shoulder joint 12cm x 8cm; (2) dark coloured contusion 10cm x 6cm in the outer aspect of right shoulder and upper arm.  On thorough examination of hyoid bone and adjoining muscle masses, P.W.38 noticed antemortem fracture of the greater horns from the body of the hyoid bone on both sides which was found separately with surrounding dark coloured bruising, that fractured ends of both greater horns were irregular and close to the body, and that extravasation of blood was there in the fractured sites of the hyoid bone and in the body. P.W.38 asserted that he has confirmed the Hyoid bone fracture as antemortem by intense immense positive 'benzidine test'.  After perusing the chemical report [Ex.P100], PW38 gave his final opinion [Ex.P101] opining that the deceased would appear to have died of 'compression of neck'.

128. On behalf of the accused, it was vehemently contended that the post-mortem certificate [Ex.P75] has been tampered with.  In view of the serious allegations levelled, during trial the whole Register containing the post-mortem certificates has been marked as Ex.P78.

129. Ex.P74 viscera report refers to Cr.No.559/2001 of Kodaikanal P.S. and P.M.No.35/2001.  In Ex.P75 post-mortem certificate, P.M.No. is stated as "34".   All four papers relating to Ex.P75 contain only Sl.No.34.  The notes written in respect of P.M.No.35 has been scored off in the Register in between P.M.No.34 and P.M.No.36 and four papers have been torn.  It was therefore argued  only to fit in with subsequent post-mortem certificate and to incorporate necessary identification marks, P.M.No.35 has been removed and the post-mortem certificate was tampered with.

130. In view of serious allegations levelled, we have carefully examined Ex.P78 Register and Ex.P75 post-mortem certificate and other entries made in Ex.P78 Register.  It emerges from the evidence of PW35 Dr. Sivakumar that for one post-mortem four pages are being maintained in the Register.  For the post-mortem of the deceased Santhakumar, in all four pages Sl.No. has been written as P.M.No.34.  There was some correction in P.M.No.34.  PW35 Dr. Sivakumar has admitted that the notes written by him in Page 35 of the Register has been scored down by cross lines.  Like wise, PW35 would also admit the suggestion that in between P.M.No.34 and P.M.No.36, four pages have been torn and even a single copy of P.M.No.35 was not available in the Register.

131. Laying emphasis upon the discrepancies in Ex.P78 Register relating to post-mortem certificate, it was contended that the post-mortem certificate was manipulated mainly to incorporate the identification marks and the injuries as per the convenience of the prosecution.  In our considered view, the above contention does not merit acceptance.  By  careful examination of Ex.P78 Register, we have noticed that numbers are not assigned regularly in seriatim as per the dates of post-mortem.  PW35 Dr. Sivakumar would depose that numbers are given by the employees working in the office.  As per Sec.114  illustration (e) of Indian Evidence Act, all official acts are presumed to be regularly performed.  Having carefully examined Ex.P78 Register and other circumstances, we find no merit in the defence that P.M.No.35 was removed to suit the convenience of the prosecution.  Any disarray of dates or discrepancies pointed out in Ex.P78 Register may not affect the correctness of the post-mortem certificate Ex.P75.

132. In Ex.P47 [Inquest Report] in Col.15, it is stated as  "No external injuries found on the body of the deceased" (,we;jthpd; clypy; btspg;gilahd fha';fs; VJk; ,y;iy)/   In Col.8, it is stated as "The dead body was seen in the Perumalmalai forest area in Tiger Chola, a 20 feet pit on the left side of the road between the trees" (gpnujkhdJ bgUkhs;kiy tdr;ruf fhl;oy; ilfh;nrhyh vd;w ,lj;jpy; nuhl;od; ,lJg[wj;jpy; 20 mo gs;sj;jpy; ku';fSf;F ,ilapy; fhzg;gl;lJ ).  In Col.9 it is stated as "There was no evidence on the body of the deceased externally to decide as to whether he had been done to death by others (/// gpwuhy; kuzk; mila bra;ag;gl;lhuh vd;gij Kot[ bra;tjw;fhd vt;tpj jla';fSk; ,we;jthpd; clypy; btspg;gilahft[k; bjhpatpy;iy).  In Col.10, it was first written as it is not known as to whether any violence has been committed (td;Kiw VJk; ele;J ,Ug;gjhf bjhpatpy;iy), which was later struck off.

133. Much emphasis was laid upon the observations in Col.Nos.9,10 and 15 of Ex.P47 Inquest report and the defence contended that as per the Inquest report, there was no signs of violence, while conducting post-mortem, it would not have been possible to notice external injuries.  It was therefore, contended that the Doctors PW35 and PW38 who conducted autopsy have obliged the police in saying that they have noticed external injuries.  It was therefore argued that the external injuries noted in Ex.P75 and Ex.P99 post-mortem certificates were deliberately incorporated and those injuries were non-existent.

134. We are not impressed with the above contention.  At the time when post-mortem was conducted, earlier the body was unidentified.  The purpose of preparing an inquest report under  Section 174(1) Cr.P.C. is to investigate and draw up a report as to cause of death.  As we have pointed out, PW29 S.I. of Police conducted the Inquest on 31.10.2001 at 7.00 P.M.  The external injuries - contusion in the front and outer aspect of right shoulder might have gone unnoticed.  That apart at the time of conducting Inquest, the identity of the body was not known.  Therefore, the Investigating Officer, who had conducted the Inquest, drew up the report on the opinion of the panchayatdars.  The observations in Ex.P47 Inquest report that "no external injuries" is not so vital to affect the core of prosecution case.

135. While conducting post-mortem on 02.11.2001, PW35 Dr. Sivakumar had noticed fracture in the hyoid bone.  After perusal of viscera report, PW35 opined that the deceased would have died 'due to strangulation of his neck due to asphyxia'.

136. PW38 Dr.Maiyazhagan, who conducted re-postmortem noticed fracture in the hyoid bone.  On thorough examination of hyoid bone, PW38 has observed as under:-
"  ... Hyoid bone was found in the neck area in three pieces with adjoining few muscle mass with appreciable blood clots, intact thyroid cartilage, tracheal rings and oricoid cartilage were found intact with postmortem dissection.  On thorough examination of the Hyoid bone and adjoining muscle masses antemortem fracture of the greater horns from the body of hyoid bone on both sides which was found separately with surrounding dark coloured bruising.  Fractured ends of both greater horns were irregular and close to the body.  Extravasation of blood was noted in the fractured sites of the hyoid bone and in the body.
Antemortem fracture was confirmed by intense immense positive 'benzidine test'.  PW38 also opined that death was due to 'strangulation due to compression of neck'.  Fracture of hyoid bone is a definitive sign of homicidal death.  Extravasation of blood in the fracture sites of hyoid bone is positive indication of violence  homicidal death.

137. Observing that existence of fracture of hyoid bone leads to conclusive proof of strangulation, but absence thereof does not prove the contra and referring to Taylor's Principles and Practice of Medical Jurisprudence, 13th Edn., pp. 307-08 in (2008) 2 SCC (Cri) 656 [Ponnusamy v. State of Tamil Nadu], the Supreme Court has held as follows:-
"23. It is true that the autopsy surgeon, PW 17, did not find any fracture on the hyoid bone.  Existence of such a fracture leads to a conclusive proof of strangulation but absence thereof does not prove contra.   In Taylor's Principles and Practice of Medical Jurisprudence, 13th Edn., pp.307-08, it is stated:
"The hyoid bone is 'U' shaped and composed of five parts: the body, two greater and two lesser horns.  It is relatively protected, lying at the root of the tongue where the body is difficult to feel.  The greater horn, which can be felt more easily, lies behind the front part of the strip muscles (sternomastoid), 3 cm below the angle of the lower jaw and 1.5 cm from the midline.  The bone ossifies from six centres, a pair for the body and one for each horn.  The greater horns are, in early life, connected to the body by cartilage but after middle life they are usually united by bone.  The lesser horns are situated close to the junction of the greater horns in the body.  They are connected to the body of the bone by fibrous tissue and occasionally to the greater horns by synovial joints which usually persist throughout life but occasionally become ankylosed.
Our own findings suggest that although the hardening of the bone is related to age there can be considerable variation and elderly people sometimes show only slight ossification.
From the above consideration of the anatomy it will be appreciated that while injuries to the body are unlikely, a grip high up on the neck may readily produce fractures of the greater horns.  Sometimes it would appear that the local pressure from the thumb causes a fracture on one side only.
While the amount of force in manual strangulation would often appear to be greatly in excess of that required to cause death, the application of such force, as evidenced by extensive external and soft tissue injuries, make it unusual to find fractures of the hyoid bone in a person under the age of 40 years.
As stated, even in older people in which ossification is incomplete, considerable violence may leave this bone intact.  This view is confirmed by Green.  He gives interesting figures: in 34 cases of manual strangulation the hyoid was fractured in 12 (35%) as compared with the classic paper of Gonzales who reported four fractures in 24 cases.  The figures in strangulation by ligature show that the percentage of hyoid fractures was 13.  Our own figures are similar to those of Green."
24. In Journal of Forensic Sciences, Vol.41 under the title  Fracture of the Hyoid Bone in Strangulation: Comparison of Fractured and Unfractured Hyoids from Victims of Strangulation, it is stated:
"The hyoid is the U-shaped bone of the neck that is fractured in one-third of all homicides by strangulation.  On this basis, post-mortem detection of hyoid fracture is relevant to the diagnosis of strangulation.  However, since many cases lack a hyoid fracture, the absence of this finding does not exclude strangulation as a cause of death.  The reasons why some hyoids fracture and others do not may relate to the nature and magnitude of force applied to the neck, age of the victim, nature of the instrument (ligature or hands) used to strangle, and intrinsic anatomic features of the hyoid bone.  We compared the case profiles and xeroradiographic appearance of the hyoids of 20 victims of homicidal strangulation with and without hyoid fracture (n = 10, each).  The fractured hyoids occurred in older victims of strangulation (39 + 14 years) when compared to the victims with unfractured hyoids (30 + 10 years).  The age dependency of hyoid fracture correlated with the degree of ossification or fusion of the hyoid synchondroses.  The hyoid was fused in older victims of strangulation (41 + 12 years) whereas the unfused hyoids were found in the younger victims (28 + 10 years).  In addition, the hyoid bone was ossified or fused in 70% of all fractured hyoids, but, only 30% of the unfractured hyoids were fused.  The shape of the hyoid bone was also found to differentiate fractured and unfractured hyoids.  Fractured hyoids were longer in the anterior-posterior plane and were more steeply sloping when compared with unfractured hyoids.  These data indicate that hyoids of strangulation victims, with and without fracture, are distinguished by various indices of shape and rigidity.  On this basis, it may be possible to explain why some victims of strangulation do not have fractured hyoid bones."


138. We must take into consideration the fact that the dead body was in the stage of decomposition and the parts of the body  face, chest, abdomen ...... slightly bloated (early signs of decomposition).  While conducting re-postmortem, the body was highly in a decomposition stage.  Therefore, the other marks of strangulation which could have been found were not noticed in this case.

139. On behalf of the accused, it was contended that even advanced stage of decomposition would not affect the mark of ligature as alleged by the prosecution.  Drawing Court's attention to certain passages on the essentials of Forensic Medicine and Toxicology by Dr. Narayan Reddy and Hand Book of Forensic Medicine and Toxicology  V.V.Pillay at Page 193, it was contended that even if putrefaction has set in, the ligature mark usually remains distinct and asphyxial component is always more pronounced in strangulation, as compared to hanging.  It was further contended that as per the passages of the above text books, the ligature could be visible even on a  putrefied body.


140. In Exs.P75 and P99  post-mortem certificates, no ligature mark has been shown.  It was therefore contended that as per the passages in the Standard Books of Forensic Medicine and Toxicology,  the ligature mark which would usually remain distinct being absent creates serious doubt, the cause of death by strangulation as alleged by the prosecution.  We are not inclined to accept the above contention.  Benzidine test is a conclusive test to decide whether fracture of hyoid bone is antemortem or postmortem.  Fracture of hyoid bone being antemortem injury is affirmed by Benzidine test.  As we have noted earlier, the body was in advanced stage of decomposition and therefore the signs of ligature mark/strangulation could not have been noticed.  Ante-mortem injury of hyoid bone is a strong piece of evidence to support the cause of death  strangulation and death due to 'asphyxia' as projected by the prosecution.  Based on the evidence of PW35 Dr. Sivakumar and PW38 Dr. Meiyazhagan and other circumstances, trial court rightly held that the death proved to be 'homicidal'.

141. In this context it may be remembered that even though the prosecution has been able to prove that Santhakumar had been abducted and forced to go with the accused persons on 26.10.2001, the accused persons in their statement under Section 313 Cr.P.C., have not whispered even a single line as to what happened to Santhakumar.  While the witnesses were examined also there has been no single whisper that Santhakumar had escaped from the custody of such accused persons or had been let of by them.  There is also no suggestion even in the remotest manner that Santhakumar had committed suicide by jumping from the hill or had accidentally fallen down.

142. The cross-examination directed against the Doctors was more on the aspect of confusion in the number given in the post-mortem report and similar things; but there is no specific suggestion to any of the Doctors that the death was either suicidal or homicidal.

143. Thus, from the materials travelled so far, it is apparent that the prosecution in addition to proving a strong motive, abduction and the fact that the deceased was last seen alive in the company of the accused persons, that the death was homicidal and death had occurred on 26.10.2001 or may be soon thereafter.  Under such circumstances, the question is whether the contention of the counsels for the appellants that the prosecution has not been able to prove the case against the accused persons beyond all reasonable doubt can be accepted.

144. It has been contended by much vehemence and less conviction that the benefit of doubt should always be given to the accused and the evidence of the prosecution must be judged by keeping the above salutary principles in view.

145. Benefit of doubt should not be doubt of a vacillating mind or a fickle mind.  Benefit of doubt to which accused is entitled is reasonable doubt, the doubt which rational thinking men would reasonably entertain and not the doubt of timid mind which fights shy or is afraid of the logical consequences if the benefit is not given.  Proof beyond reasonable doubt does not mean proof beyond shadow of doubt.  Law would fail to protect the community, if it admitted fanciful possibilities that deflect the course of Justice.

146. In (1973) 2 SCC 793 = AIR 1973 SC 2622 (SHIVAJI SAHABRAO BOBADE v. STATE OF MAHARASHTRA, in felicitous words of Justice V.R. Krishna Iyer, it was observed :-
"6. . . . The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. . . ."

147. In (1974) 4 SCC 603 = AIR 1974 SC 1567 (KHEM KARAN & OTHERS v. STATE OF UTTAR PRADESH), it was observed:-
"5. . . . Neither mere possibilities nor remote probabilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony. . . ."

148. Subsequently, in (1979) 1 SCC 355 = AIR 1979 SC 387 (K. GOPAL REDDY v. STATE OF ANDHRA PRADESH), it was observed:-
"9. . . . To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable. A reasonable doubt, it has been remarked, does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other; it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons . . ."
It was further observed :-
"10. . . . Where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule. . . ."

149. Considering the scope that Judge also presides to see that a guilty man does not escape, in AIR 1988 SC 1998 [State of U.P. v. Anil Singh], Supreme Court held as under:-
"15. ....... It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished.  A Judge also presides to see that a guilty man does not escape.  One is as important as the other.  Both are public duties which the Judge has to perform."

150. Observing that reasonable doubt must be free from an over emotional response, in  AIR 1988 SC 2154 [State of U.P. v. Krishna Gopal and another], Supreme Court held as follows:-
"13. ..... To constitute reasonable doubt, it must be free from an over emotional response.  Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions.  A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense."

151. Subsequently, similar sentiments have been expressed in many latest decisions such as AIR 2003 SC 2978 (KRISHNAN v. STATE) and JT 2008(9) SC 65 (VALSON v. STATE OF KERALA).

152. It is no doubt true that there is no eye-witness to the ultimate act of killing of the deceased by the accused persons and that part of the allegation is sought to be proved only through circumstantial evidence.  Initial part of the prosecution case relating to existence of strong motive and abduction of the deceased by the accused persons and the fact that they were last seen together have been proved through occular evidence of P.W.1 and P.W.2 corroborated by certain documentary evidence such as entries in the register of various hotels, guest houses indicating the presence of some of the accused persons.

153. The prosecution has been able to prove the avowed motive of Accused No.1 to marry P.W.1 as his third wife and he wanted initially to persuade the husband of P.W.1 to leave her and thereafter he and his henchmen had threatened the deceased with dire consequences and even instruction had been given to Accused No.2 and others to exterminate Santhakumar.  When all these had been proved futile and Santhakumar showed no sign to Accused No.1, Santhakumar, P.W.1 and other family members were forced to travel with Accused No.1 and his henchmen from Chennai to Tirunelveli on 22.10.2001 and thereafter the deceased was forced to go with some of the accused persons in the vehicle belonging to Accused No.1 on 26.10.2001 and was thus last seen alive in the company of those accused persons who were obviously acting at the behest of Accused No.1.  Thereafter a dead-body was recovered from Tiger-chola and a case was registered under Section 174 Cr.P.C. as Kodaikanal P.S. Cr.No.559 of 2001.  Subsequently, such dead-body was identified as that of Santhakumar and it was also proved that death was homicidal in nature.  Under these circumstances, can it be said that the accused persons were instrumental in killing Santhakumar or can it be said that still there is any reasonable doubt.

154. The presence of a strong motive is always considered as a circumstance against the accused, though prosecution case is not necessarily to be discarded merely because motive has not been proved.  In this connection, in 2000(10) SCC 328 - Damodar  v.  State of Karnataka, it was observed.
"4..... From the evidence of P.W.1, the mother of the deceased it is clear that the relationship between the appellant and PW 1 was strained even though they were related to each other.  PW 1 has stated that the accused was making constant demand for money from her which she was refusing.  The accused was also a bad character.  He once assaulted a woman in the neighbourhood after which PW 1 did not allow him to come to her house.  Therefore, the accused was bearing ill-will against her. ..."

This indicates that motive was considered as one of the adverse circumstances.


155. The learned counsel for appellants placed reliance upon the decision of the Supreme Court reported in 2007 (13) SCC 284 (KESHAV v. STATE OF MAHRASTRA), wherein it was observed that a judgment of conviction cannot be recorded only on the basis of motive.

156. Reliance was also placed upon 2007(13) SCC 399 (Malleshappa  v. State of Karnataka), wherein while reversing the order of conviction, it was observed that there is no convincing evidence placed by the prosecution to show that there was motive and that the deceased Yankanna had illicit relationship with Smt.Hanamawwa, the wife of the appellant.

157. It is to be noticed that in the above two cases, the Apex Court did not lay down that existence of a motive is not a relevant link in the chain of circumstantial evidence.  In the first case, it observed that existence of motive alone would not be sufficient and in the latter case, it observed that there was no acceptable evidence for the motive.

158. In 1992 (3) SCC 106   (Ganeshlal  v.  State of Maharashtra), it was observed:
"9..... It is true as contended for the appellant that the evidence on record is not sufficient to arrive at an immediate motive to commit the crime and the case depends on circumstantial evidence.  But in circumstantial evidence also when the facts are clear it is immaterial that no motive has been proved.  Men do not act wholly without motive.  Failure to discover the motive of the offence does not signify the non-existence of the crime.  The failure to discover motive by appropriate clinching evidence may be a weakness in the proof of the prosecution case, but it is not necessarily fatal as a matter of law.  Proof of motive is never an indispensable factor for conviction.  In Atley  v.  State of U.P.  (AIR 1955 SC 807), this Court held that where there is clear evidence that the person has committed the offence, it is immaterial where no motive for commission of the crime has been shown.  Therefore, even in the case of circumstantial evidence, absence of motive which may be one of the strongest links to connect the chain would not necessarily become fatal provided the other circumstances would complete the chain and connect the accused with the commission of the offence, leaving no room for reasonable doubt, even from the proved circumstances.  Therefore, the evidence of PW 4 and PW 5 partly with regard to the motive may not be sufficient to bring home the strong immediate motive. ..."

159. Law is well settled that when the prosecution case depends primarily on the circumstantial evidence, such evidence must satisfy the following tests :-

(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any order hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

160. In (1994) 2 SCC 220 (DHANANJOY CHATTERJEE v. STATE OF W.B.) , while considering the nature of proof required in a case based on circumstantial evidence, it was observed:
"....the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused.  Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of the evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused.  It needs no reminder that legally established circumstances and not merely indignation of the court can form the basis of conviction and the more serious the crime, the greater should be the care taken to scrutinise the evidence lest suspicion takes the place of proof."


161. In AIR 2003 SC 2846 (GOLAGONDA VENKATESWARA RAO v. STATE OF A.P.) it was observed:

"6. By now it is well settled principle of law that incases where the evidence is purely circumstantial in nature, the facts the circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and such circumstances must be consistent and unerringly point to the guilt of the accused and the chain of circumstances must be established by the prosecution."

162. In AIR 1987 SC 1507 (KANSA BEHERS v. STATE OF ORISSA) it was observed:

"12.... It is a settled rule of circumstantial evidence that each of the circumstances have to be established beyond doubt and all the circumstances must lead to the only one inference and that is of the guilt of the accused. ..."

163. In this connection, we may refer to the decision of the Supreme Court in  AIR 2007 SC 1355 [GEEJAGANDA SOMAIAH v. STATE OF KARNATAKA], wherein after referring to several earlier decisions of the Supreme Court and Text Book of Sir Alfred Wills on "Circumstantial Evidence", it was observed as follows :-
". . .  The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established.  They are:
(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.

164.   Similar principle has been reiterated in 2007 AIR SCW 2092 [Yogesh Narain Saxena v. State of Uttaranchal]; (2007) 2 SCC (Cri) 590 [Bablu alias Mubarik Hussain v. State of Rajasthan], (2007) 12 SCC 288 [Swamy Shraddananda v. State of Karnataka] 2008 AIR SCW 3913 [Venkatesan v. State of Tamil Nadu] and  (2008) 1 SCC (Cri) 109 [Gagan Knojia and Another V. State of Punjab].

165. While considering the question of conviction of an accused on the basis of circumstantial evidence, in 2000(10) SCC 328 - Damodar  v.  State of Karnataka,   the following circumstances,  namely, (i)existence of motive; (ii)the circumstance that the deceased was last seen in the company of the accused; (iii)the dead body was subsequently exhumed from the house of the accused and from the place which was dug by the accused himself; and (iv) there was no satisfactory explanation by the accused were considered to be sufficient.

166. In the present case, apart from the strong motive and the previous efforts to get rid of Santhakumar by hook or by crook,  strong incriminating factors are the facts that Santhakumar was forced to travel with the accused persons from Chennai to Tirunelveli on 24.10.2001 forcibly and, thereafter, after performing some so called treatment, he was forced to travel with some of the accused persons on 26.10.2001 in the vehicle belonging to Accused No.1 occupied by other henchmen of Accused No.1.  The abduction of the accused followed by his unnatural death and discovery of dead body coupled with sphinx like silence by the accused persons, in our opinion, constitute a very strong and unsnappable chain of events unerringly pointing towards all the accused persons.  We are conscious of the well settled proposition of law that, under normal circumstances, merely because the accused persons do not explain any particular circumstance, the courts trying a criminal case, may not draw any adverse inference.  However, in recent times, a line has been delineated which clearly points to the responsibility on the accused person to explain the circumstances which are within his own special knowledge.

167.  In 2000 SCC (Cri) 1516 [STATE OF W.B. v. MIR MOHD. OMAR], the Supreme Court has observed as follows:-
" . . . if the deceased was proved to have been abducted by the accused and was found murdered soon thereafter it is for the abductors to satisfy the court as to how else the abducted victim was dealt with by them.  In the absence of any such explanation it is open to the court to draw the presumption that the abductor is the murderer also.

168. Observing that the abductors alone could tell the court as to what happened to the deceased after they were abducted, the Supreme Court in 2001 SCC (Cri) 717 [SUCHA SINGH v. STATE OF PUNJAB] held thus:-
"15. The abductors alone could tell the court as to what happened to the deceased after they were abducted.  When the abductors withheld that information from the court there is every justification for drawing the inference, in the light of all the preceding and succeeding circumstances adverted to above, that the abductors are the murderers of the deceased.
.  .  .
19. We pointed out that Section 106 of the Evidence Act isnot intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inference can 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.
.  .  .
21. We are mindful of what is frequently happening during these days.  Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed.  If a legal principle is to be laid down that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities.  India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others."

169. Absence of any explanation was also considered to be a circumstance in 2007 (12) SCC 288 (cited supra).

170. While considering the circumstances of the deceased and the accused being last seen together, the proximity between the date on which they were last seen together and the date of incident is relevant, as apparent from the decisions of the Supreme Court in 2007(3) SCC 755 - State of Goa  vs.  Sanjay Thakran.  It was observed therein :-
"34. From the principle laid down by this Court, the circumstance of last seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out.  The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on  it as a circumstance against the accused.  But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration.  There can be no fixed or straitjacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author of the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons.  Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence.  For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case. [Emphasis added]

171. Regarding burden of proof, applicability of Section 106 and Section 114 of the Evidence Act, it was observed in 2000(8) SCC 382 - State of W.B.  v.  Mir Mohammad Omar, as under:
"31.The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning.  the doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule.  On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty.
. . .
33.Presumption of fact is an inferences to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved.  Presumption of fact is a rule in law of evidence that  fact otherwise doubtful may be inferred from certain other proved facts.  When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position.  The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act.  It empowers the court to presume the existence of any fact which it thinks likely to have happened.  In that process the court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.
34.When it is proved to the satisfaction of the Court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them.  If he was found murdered within a short time after the abduction the permitted reasoning process would enable the Court to draw the presumption that the accused have murdered him.  Such inference can be disrupted if the accused would tell the Court what else happened to Mahesh at least until he was in their custody." (Emphasis added)

172. In our view the observations made in these decisions noticed earlier would squarely apply to the present case.  The deceased Santhakumar was abducted and assaulted at the behest of A1 and he was handed over to A2 to A4 and A6 and thereafter the Tata Sumo car bearing registration No.TN-09 Q 1310 proceeded towards Dindigul.  A2 to A4 and A6 took away the deceased Santhakumar.  What happened thereafter to Santhakumar is especially within the knowledge of such appellants,who have given no explanation.  It was for the accused to explain what happened to Santhakumar after they took him away.  When the abductors withhold that information from the court there is every justification for drawing the inference that they murdered Santhakumar.  Prosecution is succeeded in proving the facts from which a reasonable inference can be drawn regarding death.  Appellants by virtue of their special knowledge must offer explanation which would lead to draw different inference.  But the stand of the appellants is  a bare denial of the prosecution case.  In the absence of any explanation, the inevitable inference is that the appellants are responsible for the death of the deceased Santhakumar.

173. For the aforesaid reasons, we are of the considered view that the guilt of the accused persons has been proved beyond all reasonable doubt.

174. In addition to the above circumstances, the prosecution had relied upon the statement of different accused persons leading to discovery of facts as envisaged under Section 27 of the Evidence Act.  The trial court had relied upon the statement of A1 leading to recovery of vehicles belonging to A1, statement of A2 leading to recovery of vehicle belonging to A2 and a lungi inside such vehicle and statement of A2 relating to discovery of dead-body of the deceased and the statement of A6 leading to recovery of money-purse containing certain cash, photographs of P.W.1 and recovery of gold chain and certain other articles belonging to either P.W.1 or the deceased.  So far as the statement of A1 relating to recovery of vehicles of A1 is concerned, the statement of several witnesses including P.W.1 and P.W.2 made before the police clearly indicated that the vehicles belonging to A1 had been utilised on many of the occasions including travel to different places including Tirunelveli and return from such places.  Under such circumstances, it must be taken that it was already known to the police that particular vehicles belonging to A1 had been utilised for the purpose of transportation in connection with different incidents.  Therefore, it cannot be said that confession of A1 stating about the utilisation of the vehicles for the particular purpose in connection with the crime led the police to recovery of the vehicles as the involvement of those vehicles was already known to the police.  Such vehicles were also recovered not from any secret place known only to A1 but from the places which were accessible and known to everybody.  Under those circumstances, we do not think any value can be attached to such statement.  For similar reason, the statement of A2 leading to recovery of the vehicle belonging to A2 is also of no use.  So far as the recovery of Lungi is concerned, that could have been used as an incriminating circumstance, if there would be any material to link the lungi with the murder of the deceased.  The confession of A2 that with the lungi the deceased was strangulated is otherwise not admissible and in the absence of any other incriminating circumstance to connect the lungi with the alleged crime, recovery of the lungi from inside the vehicle on the basis of the statement from A2 is of no consequence.

175. The statement leading to discovery of the dead-body and the statement leading to recovery of certain other incriminating articles may, however, stand on a different footing and those aspects are required to be considered a little more elaborately.

176. Before analysing the evidence, it may be necessary to examine the scope of Section 27 of the Evidence Act.  The scope of Section 27 of the Evidence Act has been stated and re-stated in several decisions of the Supreme Court and in almost all the decisions of the Supreme Court or for that matter of any High Court, reference is usually made to the observation of the Privy Council in AIR 1947 PC 67 (PULUKURI KOTTAYA v. KING EMPEROR). The relevant portion of the observation of the Privy Counsel made in the said case is to the following effect:-

". . . It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced : the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact.  Information as to past user or the past history, of the object produced is not related to his discovery in the setting in which it is discovered.  Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of the knife : knives were discovered many years ago.  It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been  used in the commission of the offence, the fact discovered is very relevant.  But if to the statement the words be added 'with which stabbed A.', these words are inadmissible since they do not related to the discovery of the knife in the house of the informant. (p.77)" (Emphasis added)

177. After approving the aforesaid observation and referring to several other Supreme Court decisions, the various requirements of Section 27 have been summed up in AIR 2004 SC 2865 (ANTER SINGH v. STATE OF RAJASTHAN) in the following manner.

"16.....(1)The fact of which evidence is sought to be given must be relevant to the issue.  It must be borne in mind that the provision has nothing to do with question of relevancy.  The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of some information received from the accused and not by accused's own act.
(4) The persons giving the information must be accused of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
(7) Thereupon only that portion of the information which relates distinctly or strictly to the fact discovered can be proved.  The rest is admissible."

178. In the light of the above observation made by the Supreme Court and the Privy Council, it is necessary to examine the evidence on record.

179. The statement of accused No.2 was made before the Police at Velacherry Police Station.  P.W.7, who was working as Velacherry Village Administrative Officer in the office of Tahsildar, Mambalam-Guindy Taluk, had been directed to go to the Office of the Assistant Commissioner of Police for help and assistance during the investigation on 30.11.2001.  He had gone to such police station lock-up, where accused Nos.2, 3, 4 and 5 were in police custody.   A-2 gave a confessional statement to the Inspector of Police, wherein he stated ".... if he were taken to Kodaikanal, he would show the spot, Tiger Chola where the dead body was thrown by them. ..."  It appears that subsequently, A-4 and A-3 made similar statements.  A-2 was taken to Kodaikanal in Police Van, along with police personnel, accompanied by P.W.7.  According to P.W.7:
"... A2 showed the spot at which the dead body was thrown at Tiger Chola and then by going to the Police station at Kodaikanal; A2 identified the photos of the dead body of Santhakumar kept by the police there; and the pant, shirt and belt worn by Santhakumar.  This was done on 1.12.2001 ...."

180. In Cross Examination, P.W.7 has stated ".... A2 showed the place near by the curve in the area Tiger Chola.  A2 did not climb down that valley and pointed out that particular spot.  There is a name board post planted near that curve showing the same Tiger Chola. ..."

181. P.Ws.41 and 42 were the relevant Investigating Officers before whom the statements leading to discovery had been made.  P.W.41 has stated
".... The A-2 had stated that he would identify the site in which the dead body was buried if he is taken to Tiger Shola at the peak of Kodaikanal hills. ....... On the way, A2 having looked upon a bend in the place having plaque which reads as "Tiger Shola", found at the peak of the Kodaikanal hills, stated that he threw  the dead body on that site only.  . . . But, no such dead body was found there...."

He has further stated that thereafter they proceeded to Kodaikanal Police Station and there it was found that the dead-body had been recovered and photographs of such dead-body were identified by four accused persons as that of Santhakumar.
P.W.42, another Investigating Officer stated :-
 ".....  On 1.12.2001 evening at about 4 PM, when we were proceeding towards Kodaikanal by van, on requesting to stop the vehicle at Tiger Solo bend, we stopped the van. Then, the accused Daniel got down from the van and identified the said place.  He pointed out that place as the place where they threw the dead body.  . . . . Allalkathan, Inspector of Police, who present with us, questioned the accused that the dead body was not found in that place, all the three accused answered as they threw the dead body there only. ...""
He further stated that all of them had proceeded to Kodaikanal Police Station where it was found that forest officials had already found a dead-body and on seeing the photographs of such dead-body, the accused, who were present there, identified the photographs as that of the deceased.

182. It may prima facie appear as if the evidence of P.W.7, to some extent, contradicts the evidence of P.W.41 and more so P.W.42 inasmuch as P.W.7 has not categorically stated that the dead-body was not found at the place where A2 had pointed out that body had been thrown.  On the other hand, the evidence of P.W.41 and P.W.42 indicates that no dead-body was found at the place where it was stated to have been thrown by the accused.  The specific statement of P.W.7 was "A2 did not climb down that valley and pointed out that particular spot".   This only indicates that A2 had not climbed down that valley.  But the statement is consistent with that of P.W.41 and P.W.42 to the extent that A2 had pointed out the place where the dead-body had been thrown.  The evidence of P.W.41 and P.W.42 makes it clear no such dead-body could be found there and thereafter all of them proceeded to Kodaikanal police station where it transpired that the dead-body had already been recovered from Tiger Chola by the forest officials and photographs of that dead-body were identified by A2 and other accused persons to be that of the deceased Santhakumar.  Under these circumstances, it may be reasonable to conclude that though on the basis of the statement made by A2 no dead-body could be discovered by P.W.41 and P.W.42 from the place where it was thrown, the fact remains that such statement ultimately led to discovery of the fact that the dead-body of Santhakumar had been recovered from Tiger Chola.  To some extent, such statement would be admissible under Section 27 of the Evidence Act, inasmuch as, ultimately, the statement paved the way for the prosecution to discover the dead-body of the deceased.

183. Learned Senior Counsel appearing for the Appellant Nos.2 to 9 submitted that in view of the decision of the Supreme Court in (1997) 6 SCC 171 (VIJENDER v. STATE OF DELHI), the statement of Accused No.2 regarding place where the dead-body was thrown cannot be considered as admissible as it led not to discovery of any "fact", but to the particular place Tiger Chola, where no dead-body was found.
Though in the first blush it may appear that the above decision of the Supreme Court is applicable, on deeper scrutiny, we find that the said decision is not applicable to the facts of the present case.  In that case, deceased Khurshid had been dragged on  26.6.1992 and the dead-body of young boy was found on 27.6.1992, which was later on identified by the mother P.W.6., as the dead-body of her son Khurshid.  Under such circumstances, the Supreme Court observed :-
"17. . . . Evidence was led through the above three police witnesses that in consequence of information received from the three appellants on 30-6-1992 they discovered the place where the dead body of Khurshid was thrown. As already noticed, the dead body of Khurshid was recovered on 27-6-1992 and therefore the question of discovery of the place where it was thrown thereafter could not arise. Under Section 27 of the Evidence Act if an information given by the accused leads to the discovery of a fact which is the direct outcome of such information then only it would be evidence but when the fact has already been discovered as in the instant case  evidence could not be led in respect thereof."

It may be noted that, in the present case, an unidentified dead-body had been accidentally recovered from the concerned place and it is only the statement of the accused which ultimately led the police to connect such unidentified dead-body to be that of the deceased Santhakumar.  It is not even remotely suggested to any of the Investigating Officers that the unidentified dead-body, which had been accidentally recovered, was already known to the police to be that of the deceased Santhakumar.

184. On the other hand, the decision of the Supreme Court in 2000 SCC (Cri) 1088 (STATE OF MAHARASHTRA v. DAMU), appears to be squarely applicable and, therefore, we feel it worthwhile to quote extensively including the factual backdrop from the said decision.  It was observed therein :-
"34.  After the arrest of A-3 Mukinda Thorat, he told the investigating officer that Dipaks dead body was carried by me and Guruji (A-2) on his motorcycle and thrown in the canal. The said statement of A-3 Mukinda Thorat was not found admissible in evidence as the dead body was not recovered pursuant to the said statement. This aspect requires more consideration. It must be pointed out that pursuant to the said statement and the offer made by A-3 Mukinda Thorat that he would point out the spot, he was taken to the spot and there PW 44 (investigating officer) found a broken piece of glass lying on the ground. It was picked up by him. In this context, it is important to refer to another item of evidence. A motorcycle was recovered from the house of A-2 Guruji and its tail lamp was found broken and one piece of it was missing. But when the broken glass piece recovered from the spot pointed out by A-3 Mukinda Thorat was placed on the broken situs of the tail lamp of the motorcycle, it so fitted the space that PW 44, the investigating officer had no doubt whatsoever that the said glass piece was originally part of the tail lamp of that motorcycle.
35. The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee  that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum. It is now well settled that recovery of an object is not discovery of a fact as envisaged in the section. The decision of the Privy Council in Pulukuri Kottaya v. Emperor6 is the most quoted authority for supporting the interpretation that the fact discovered envisaged in the section embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given must relate distinctly to that effect.
36. No doubt, the information permitted to be admitted in evidence is confined to that portion of the information which distinctly relates to the fact thereby discovered. But the information to get admissibility need not be so truncated as to make it insensible or incomprehensible. The extent of information admitted should be consistent with understandability. In this case, the fact discovered by PW 44 is that A-3 Mukinda Thorat had carried the dead body of Dipak to the spot on the motorcycle.
37. How did the particular information lead to the discovery of the fact? No doubt, recovery of dead body of Dipak from the same canal was antecedent to the information which PW 44 obtained. If nothing more was recovered pursuant to and subsequent to obtaining the information from the accused, there would not have been any discovery of any fact at all. But when the broken glass piece was recovered from that spot and that piece was found to be part of the tail lamp of the motorcycle of A-2 Guruji, it can safely be held that the investigating officer discovered the fact that A-2 Guruji had carried the dead body on that particular motorcycle up to the spot.
38. In view of the said discovery of the fact, we are inclined to hold that the information supplied by A-2 Guruji that the dead body of Dipak was carried on the motorcycle up to the particular spot is admissible in evidence. That information, therefore, proves the prosecution case to the abovementioned extent."

185.  Therefore, it can be said that the statement made by the accused had led to ultimate discovery of the dead-body of Santhakumar. This can be considered as an additional link lending assurance to the prosecution case; but we must hasten to add that even if such discovery under Section 27 in respect of the dead-body is eschewed from consideration, the other materials on record, which we have already analysed, are sufficient to fasten the liability on the concerned accused persons.

186. P.W.1 had stated that A-6 Kasi gave a confession that if he were taken to his colony he would identify and produce money purse of Santhakumar containing photograph of Jeevajothi and also Rs.2,400/- and a gold chain.  Thereafter A-6 took them to that place and took out the cash, gold chain and moneypurse with photograph, which were seized under mahazar.

187. P.W.42, who was the Investigating Officer at that stage of the investigation, stated about the confession of Kasi, which has been marked as Ex.P-15, wherein it was stated that the accused if taken to the residence at Gangai Apartments, the articles can be brought out.  Mahazar which was prepared is Ex.P-16.  Money purse with photograph of P.W.1 had been marked as M.O.7, gold chain had been marked as M.O.9, cash was marked as M.O.14 series and the shawl was marked as M.O.17.

188. Laying emphasis upon the contradiction in the evidence of P.W.1, it was contended that P.W.1 had already seen M.Os.7, 9 and 17 at Kodaikanal on 02.12.2001 which would obviously contradict the prosecution case that such M.Os.7,9 and 17 were recovered on 13.12.2001 on the basis of the statement of A6.

189. As submitted by the learned Public Prosecutor, P.W.1 was cross examined at length for quite a number of days.  M.O.5 Shirt, M.O.6 Pant, M.O.7 Money purse with photograph of P.W.1 and Rs.2,400/-, M.O.8 Black coloured Belt, M.O.9 Gold Chain and M.O.17 Shawl were marked in the Court on one day.  Since all the Material Objects were marked on one single day, overawed by the Court atmosphere, by slip of tongue, P.W.1 stated about the identification of M.Os.7, 9 and 17 at Kodaikanal Police station.   On the other hand, the specific suggestion to P.W.1 was as if she had not identified M.Os.7, and 9 at Kodaikanal Police Station.  It is worthwhile to extract such statement of P.W.1, which runs as follows :-
". . . If it is stated that I have not identified M.O.7 and M.O.9 chain in the Kodaikanal police station, it is not correct".
Obviously because P.W.1 could not have understood the implication of the question, she had merely denied such a suggestion, meaning thereby as if M.O.7 and M.O.9 were identified at Kodaikanal Police Station.  When P.W.1 was recalled, she has rectified such mistake by stating that she has identified M.Os.7, 9 and 17 only at Velachery Police station.  The answers elicited from P.W.1 during cross examination would not in any way nullify the evidentiary value of P.W.1 regarding identification of M.Os.7, 9 and 17.  Recovery of M.Os.7, 9 and 17 based on the confession statement of A6 is yet another militating circumstance against the accused.

190. In this connection, it has to be noticed that P.W.2., who had gone with P.W.1 to the Kodaikanal Police Station and had identified the photographs M.Os.11, 12 and 14 as well as wearing apparels such as shirt, pant and belt (M.Os.5, 6 and 8), had never stated that M.Os.7, 9 and 17 were also identified at Kodaikanal Police Station.  As  a matter of fact, no suggestion was made to her that such M.Os.7, 9 and 17 were also available at Kodaikanal Police Station and had been identified either by P.W.1 or by her.  Similarly, no suggestion was made to the Investigating Officers, either P.W.41 or P.W.42, that M.Os.7, 9 and 17 were already available at Kodaikanal Police Station on 2.12.2001.  From these, it is apparent that the statement of P.W.1 that she had seen M.O.7 and M.O.9 at Kodaikanal Police Station was an obvious slip of tongue, which was corrected when she was re-examined.  After such clarification was made by P.W.1, even though searching cross-examination had been made, nothing had been elicited to discard such clarification.
Recovery of M.Os.7, 9 and 17 at the instance of Accused No.6 can be considered as an additional link.

191. Even if for sake of argument, we do not rely upon the incriminating circumstances relating to discovery of fact on the basis of the statements leading to discovery as envisaged under Section 27 of the Evidence Act, we have no doubt in our mind that the other circumstances on record, including the statement of P.W.1., which is amply corroborated by the statement of P.W.2 as well as certain documentary evidence showing the presence of the accused persons in different places near about the scene of occurrence, clearly point out only one conclusion that Santhakumar was killed by other accused persons on the basis of the instructions of Accused No.1,  after which he was forcibly taken away by other accused persons in the vehicle belonging to Accused No.2.

192. Once conclusion of guilt of the accused is reached, the Criminal Appeal No.637 of 2004 filed by the accused persons is bound to be dismissed.  However, the remaining question is relating to Criminal Appeal No.748 of 2004 filed by the State.  As already noticed, the trial court, even though believed the prosecution case in toto, has convicted the accused persons only under Section 304(I) IPC.  For the aforesaid purpose, the trial court seems to have commented upon P.W.1 and, more particularly P.W.2, regarding their interaction with Accused No.1.  Since it is difficult to fathom and summarize the reasons for which the trial court thought that the offence committed would be under Section 304(I), it would be more appropriate to quote the relevant portion of the judgment of the trial court, which is as follows :-
In the fair analysis and assessment of things, this court is of firm view and opinion that P.W.1, even after knowing the inner mind and heart of A1, from the beginning of the episode, for the reasons best known to her, has not shown the resistance at all.  If really, she was averse and against it, she could have why she should have nipped it at the bud itself.
Summing up, A1 was lured, an wooed, and enticed by P.W.2 and the same was not discouraged by P.W.1 at the beginning and budding condition itself.  As such, A1 cannot be blamed or found fault with in-entirety or wholesale for his lust and craze towards P.W.1.
Moreover, it has been seen depicted and picturised by P.W.1, in her own words that on 1.10.2001 when she was alone, in the upstairs-room of godown, A1 has told her that he could do her whatever he liked but he would not stoop down so cheaply.  The said aspect has also been seen incorporated in a specific manner in the complaint Viz Ex.P.3 (at page 32).  This attitude of A1 also depicts his other side to a considerable extent.
At such evidentiary back-drop, this court, since of the opinion, that A1 by himself alone is not solely and wholly blameworthy, the need and necessity does arise to view and weight accordingly the veracity and gravity of the offence of murder U/s.109 r/w 302 I.P.C. to a lesser and reduced decree as U/s.109 r/w.304(i) I.P.C. and accordingly decided.

193. We do not think it requires much forensic knowledge or skill to hold without any hesitation that the accused persons had committed offence under Section 302 IPC.  Whether offence is punishable under Section 302 or 304 Part I or 304 Part II depends upon the materials by keeping a distinction between Sections 299 and 300 IPC.
Sections 299 and 300 of the Indian Penal Code are extracted hereunder :-
"299.     Culpable homicide: -- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Explanation 1A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.

Explanation 2Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

Explanation 3The causing of the death of child in the mothers womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

300.     Murder: -- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

2ndlyIf it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or
  3rdlyIf it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
4thlyIf the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Exception IWhen culpable homicide is not murderCulpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
 The above exception is subject to the following provisos:--

FirstThat the provocations not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

SecondlyThat the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

ThirdlyThat the provocations not given by anything done in the lawful exercise of the right of private defence.

ExplanationWhether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact."

194. It is no doubt true that there is no specific material available as to which of the accused persons actually caused the death of Santhakumar by strangulation.  However, the intention of the accused persons to cause homicidal death is apparent.  Since the death was caused with the intention of causing death, such culpable homicide as defined under Section 299 would amount to murder as it does not come within any of the exceptions indicated in Section 300.  There is no question of any grave and sudden provocation as contemplated under Exception-1.  Similarly there is no question of exercise of right of private defence as contemplated in Exception-2 nor it can be said that the offence was committed with premeditation in a sudden fight in the heat of passion upon a sudden quarrel as contemplated in Exception-4.  Since none of the exceptions can be applied, there is no other alternative than to come to the conclusion that the offence is punishable under Section 302 IPC.
195. The trial court convicted A1 and A7 guilty under Sec.109 r/w.304 (I) IPC and A2, A3, A4 and A6 under Sec.304 (I) IPC.  In a case mainly based upon circumstantial evidence once guilt of the accused is established,  there cannot be any escape from the conclusion that if the prosecution case on record is found to be proved, how such offence under Sec.302 IPC can be treated as Sec.304 (I) IPC.  If the act of the accused falls within any one of the Clauses (i) to (iv) of Sec.300 IPC, but is covered by any of the five Exceptions, it will be punishable under Sec.304 (I) IPC.  If the act comes under Clause (iv) of Sec.300 IPC, but is covered by any of the Exceptions, it will be punishable under second part.  First part of Sec.300 IPC applies where there is guilty intention and second part applies where there is no such intention, but there is guilty knowledge.  Act of the accused is not covered by any of the five Exceptions.  While so, conviction under Sec.304 (I) IPC is not appropriate.  Therefore, the appeal filed by the State Government is bound to be allowed and the accused [A1, A2, A3, A4, A6 and A7] must be held to be guilty under Sec.302 IPC in addition to the other offences as found by the trial court.
Once they are found guilty under Section 302, the sentence which can be imposed is either death sentence or life imprisonment.  In the present case, apart from the fact that the trial court had convicted them of a lesser offence and such order is upturned in appeal, it cannot be said that the manner in which the offence  committed is rarest or rare type justifying the imposition of death sentence.  Accordingly, it is directed that all such accused persons found guilty under Section 302 IPC shall undergo imprisonment for life.   In respect of other offences, the trial court has imposed various sentences as well as fine.   We do not find any justification in imposing huge fine on Accused No.1.

196. In the result, the appeal preferred by the State Government [C.A.No.748/2004] is allowed and the appeal preferred by the accused [C.A.No.637/2004] is dismissed.

A1, A2 to A4, A6 and A7 are convicted under Sec.302 IPC and they are sentenced to undergo life imprisonment.
Fine of Rs.30 Lakhs imposed upon A1 for the conviction under Sec.109 r/w.304 (I) IPC and  fine of Rs.30,000/- imposed upon A2 for the conviction under Sec.304 (I) IPC is set aside.
For the conviction under Sec.302 IPC, fine of Rs.15,000/- each is imposed upon A1, A2, A3, A4, A6 and A7, in default to undergo RI for 3 months.
Conviction and sentence of RI for 3 years imposed upon A1, A5, A8 and A9 under Sec.109 r/w.364 IPC and conviction and sentence of RI for 3 years imposed upon A2 to A4, A6 and A7 under Sec.364 IPC is confirmed.
Fine of Rs.20 lakhs imposed upon A1 for the conviction under Sec.109 r/w.364 IPC and fine of Rs.15,000/- imposed upon A2 for the conviction under Sec.364 IPC  is reduced to Rs.10,000/- each, in default to undergo RI for 3 months.  
Fine of Rs.10,000/- each imposed upon A3, A4, A6 & A7 for the conviction under Sec.364 IPC is confirmed,in default to undergo RI for 3 months, in default to undergo RI for 3 months.

Fine of Rs.5,000/- each imposed upon A5, A8 & A9 for the conviction under Sec.109 r/w.364 IPC  is also confirmed, in default to undergo RI for 3 months.
Conviction and sentence of RI for 2 years imposed upon  A1 under Sec.109 r/w.201 IPC and A2 to A4, A6 & A7 under Sec.201 IPC is confirmed.
Fine of Rs.5 Lakhs imposed upon A1 for the conviction under Sec.109 r/w.201 IPC is reduced to Rs.5000/-, in default to undergo RI for 3 months.
Fine of Rs.5,000/- each imposed upon A2, A3, A4, A6 & A7 for the conviction under Sec.201 IPC is  confirmed, in default to undergo RI for 3 months.
Direction for payment of compensation to P.W.1 is set aside.
The order of the trial court directing the sentences to run concurrently shall hold good.
The Additional Sessions Judge shall take steps to secure the presence of the accused and commit them to prison to undergo the period of sentence imposed.
Bail bond of all the accused persons has been discharged.
Consequently, M.P.No.164 of 2008 is closed.


197. As we have already indicated, the incident in this case is only a sequel to the incident dated 1.10.2001, which is the subject matter of the decision in Crl.A.Nos.668 and 669 of 2004.  Those Criminal Appeals have been dismissed by a separate judgment pronounced today.  Since the incident in the present case is only a sequel to the earlier incident and sentences of imprisonment have been imposed in both the matters, we deem it appropriate in exercise of power under Section 482 Cr.P.C., to direct that the substantive sentences imposed in Crl.A.Nos.668 and 669 of 2004 shall run concurrently along with the substantive sentences imposed in Crl.A.Nos.637 and 748 of 2004.






dpk

To

1. Additional Sessions Judge, Chennai at Poonamallee

2. The Public Prosecutor,
    High Court, Madras.

3. State rep. by Inspector of Police,
    (Law and Order),
     J-7 Velachery Police Station,
    Chennai 42