IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 16.9.2009 Coram THE HON’BLE MR.JUSTICE C.NAGAPPAN AND THE HON’BLE MR.JUSTICE M.JEYAPAUL Criminal Appeal No.195 of 2009 Vasanth Kumar @ Vasanth ..Appellant/Sole Accused vs. The State rep by its Inspector of Police, K1, Sembium Police Station, Perambur, Chennai 600 012 ..Respondent/Complainant For Appellant : Mr.AR.L.Sundaresan, Senior Counsel for Ms.Rajeni Ramadass For Respondent : Mr.I.Paul Nobel Devakumar, Govt. Advocate (Crl. Side) Prayer:- Criminal Appeal to set aside the conviction and sentence imposed in S.C.No.439 of 2007 dated 30.3.2009 on the file of the III Additional Sessions Judge, City Civil Court, Chennai. JUDGMENT (Judgment of the court was delivered by M.JEYAPAUL, J.) The sole accused, who was convicted for offence under section 364 of the Indian Penal Code and sentenced to undergo life imprisonment with fine of Rs.5000/= in default to undergo three months rigorous imprisonment, convicted under section 392 read with section 397 of the Indian Penal Code and sentenced to undergo 7 years rigorous imprisonment with fine of Rs.5000/= in default to undergo three months rigorous imprisonment, convicted under section 302 of the Indian Penal Code and sentenced to life imprisonment with fine of Rs.10,000/= in default to undergo three months rigorous imprisonment and also convicted under section 201 of the Indian Penal Code and sentenced to undergo 5 years rigorous imprisonment with fine of Rs.5000/= in default to undergo three months rigorous imprisonment, moves the present appeal. https://hcservices.ecourts.gov.in/hcservices/ 2. On the side of the prosecution, P.Ws.1 to 24 were examined and Exs.P1 to P34 and M.Os.1 to 34 were marked. 3. The sum and substance of the case of the prosecution as unfolded by the witnesses examined reads as follows:- (i) The accused Vasanth Kumar alias Vasanth was serving as Manager in Progressive Polymer Company run by PW11 Sherenik Mehta. PW9 Kumaresan was working as Supervisor in the said Company. PW3 Shanthilal is the father and PW2 Manju Bora is the wife of the deceased Suresh Bora. PW1 Vishal was the Manager of Mitalal Jewellers carried on by the deceased Suresh Bora. PW4 Arokyasamy was also working in the jewellery shop of the deceased. (ii) The deceased Suresh Bora had abiding faith in God. He used to often visit Perumal Temple at Thyagaraya Nagar and Amman Temple at Thiruvakkarai. Suresh Bora frequented Amman Temple at Thiruvakkarai. He developed close acquaintance with the accused Vasanth Kumar alias Vasanth. Vasanth is the son of Archagar in Amman Temple at Thiruvakkarai. In fact, Suresh Bora would not venture to do anything without consulting the accused. The accused had come to the house of the deceased many an occasion. (iii) In the morning on 14.2.2007, Suresh Bora informed PW2 Manju Bora and PW3 Shanthilal that he had a proposal to go over to the temple. He also informed them that the accused had come down to Chennai. Suresh Bora asked PW4 Arokyasamy to purchase raw materials required for performing pooja as he had a proposal to go to the Perumal Temple at Thyagaraya Nagar at about 6.30 pm on 14.2.2007. He purchased all the required materials for performing pooja and handed over to Suresh Bora. PW1 Vishal would speak to the fact that once in three months Suresh Bora used to take cash and jewels to the temple for performing pooja by putting those articles under the feet of God and get them back after performing pooja rituals. On 14.2.2007, at about 6.00 pm, PW1 kept a bag containing cash and another bag containing jewels in Maruti 800 car bearing registration No.TN 09 AM 5139. Thereafter, Suresh Bora, having informed PW1 that he was proceeding to Venkateswara Temple at Thyagaraya Nagar, left his shopping premises at 6.30 pm on the same day. (iv) Suresh Bora did not return to the shop till about 8.30 pm on the said day. As he did not return till the shop was closed, PW1 tried to contact Suresh Bora through the mobile phone No.9841097155 possessed by Suresh Bora. There was no response to the call given by PW1. The friends and relatives of Suresh Bora also enquired as to why Suresh Bora had not returned home. PW2 also attempted to contact her husband over phone, but, there was no response from him. At about 9.30 pm on the said day, she contacted the accused over phone, but, the latter did not properly answer. She again tried to contact her https://hcservices.ecourts.gov.in/hcservices/ husband over phone, but, there was no response from him though the telephone was ringing. (v) PW1 contacted his Advocate Mr.Govindaraman and informed him about the missing of Suresh Bora. He proceeded to Sembiyam Police Station at about 10.00 am on 15.2.2007 and gave the complaint, Ex.P1 to PW2, Inspector of Police Mr.Sivamani. He registered a case in Crime No.418 of 2007 as a case of man missing and prepared printed FIR, Ex.P29. He took up the case for investigation. He examined PW1 and Arokyasamy and recorded their statements. He constituted a separate team for the purpose of detecting Suresh Bora. (vi) PW16 Uthrapathy, Sub Inspector of Police, who was entrusted with the job of searching the missing Suresh Bora got furtive information about parking of Maruti Car bearing registration No.TN 09 AM 5139 at the Car Parking slot of Apollo Hospital. At about 2.30 am on 16.2.2007, he proceeded to the said premises and having found that Suresh Bora was lying dead in between the front and back seat of the Car, passed on information to PW24. (vii) PW22 Sudhakar took photographs, Ex.P27 series of the dead body in the Maruti 800 car found in the parking slot of Apollo Hospital, Chennai. (viii) PW24 rushed to the Parking Slot of Apollo Hospital, Chennai. He prepared observation mahazar, Ex.P4 in the presence of PW5 Goutham. He also drew rough sketch reflecting the scene of occurrence. He also conducted inquest on the dead body of Suresh Bora between 3.30 pm and 5.30 pm on 16.2.2007 and prepared inquest report, Ex.P31. He examined PW2 Manju Bora, PW3 Shanthilal Bora, Pinkie and Ashis and recorded their statements. Based on the information furnished by the wife of the deceased, he converted the case into one under section 302 and section 379 of the Indian Penal Code. He prepared altered express report, Ex.P32 and despatched the same to the learned Judicial Magistrate. (ix) PW19 Dr.Udayasankar, having received requisition, Ex.P23 from the Inspector of Police, PW24 through PW15 Logananthan, Head Constable, commenced post mortem examination on the dead body of Suresh Bora at 1.30 pm on 16.2.2007 and found the following external and internal injuries on the dead body of Suresh Bora:- "External injuries:- Face bloated & green in colour (2) Bleeding from the nose (3)Lips swollen & (n.c) (4)Blisters over the face, Chest, both hands, abdomen, back, trunk. Skin peeled off at some places & green in colour. (6) Scrotum & Penis swollen (7) Both eyelids swollen & chemosed. (8)Laceration injury below the left knee 7x3 cm. https://hcservices.ecourts.gov.in/hcservices/ Internal injuries:- Sub Scalp clots seen throughout the scalp. Brain:- Liquefied. Heart:- Normal. Lungs:- Both lungs cyanosed & blue in colour. Larynx & Traches:- Normal. Stomach:- 200 gms partly digested food particles present. (Almond smell), stomach mucosa eroded & congested. Hyoid Bone:- Intact. Liver, Spleen, Kidney:- Normal C/s – congested. Bladder:- empty. Pelvis, Spinal column:- Normal & intact. Scalp:- Sub- scalp clots seen throughout the scalp. Brain:- Liquefied." He, having preserved the viscera for test, expected toxicology report to give his opinion. The post mortem report issued by him was marked as Ex.P22. (x) PW15 Loganathan, Post mortem constable seized M.O.3 pants, M.O.4 shirt, M.O.5 banian and M.O.6 jetty from the dead body of Suresh Bora after the post mortem examination was over and entrusted the same to PW24 Inspector of Police for the purpose of investigation. (xi) PW24 arrested the accused on 16.2.2007 near Central Railway Station in the presence of PW7 Rajesh and PW8 Dharmichand. A sum of Rs.3,00,000/= was seized from his person. On the basis of the admissible portion, Ex.P10 in the confession statement given by the accused, PW24, alongwith the witnesses and accused, proceeded to the house of PW9 Kumaresan at Pondicherry and recovered from his house a sum of Rs.27,00,000/= and gold ornaments M.O.8 series to M.O. 12 series and M.O.13 to M.O.23 under relevant seizure mahazar in the presence of the very same witnesses. A black colour bag, M.O.1, brown colour bag, M.O.2, plastic container two in numbers M.O.28, J.Mitalal Purse M.O.29, Cloth Purse with four chambers M.O.30, another cloth purse with three chambers M.O.31 and Velvet Cloth bag M.O.32 were also recovered under relevant seizure mahazar in the presence of the very same witnesses. (xii) PW24 also recovered Maruti Esteem Car bearing registration No.PY-01-E 459 and two cyanide Pellets in a small plastic cover found in the dashboard of the said car under relevant seizure mahazar in the presence of the very same witnesses. The accused was, thereafter, remanded to judicial custody. The material objects were also despatched to the custody of the court. (xiii) PW24 filed necessary petition to take police custody of the accused. Police custody of the accused was granted on 27.2.2007. PW24 interrogated the accused. On the basis of the disclosure made by the accused, PW24 proceeded to Janakipuram Village and recovered Nokia Camera Cellphone from a thorny bush near the main road over https://hcservices.ecourts.gov.in/hcservices/ there in the presence of PW13 Santhosh Kumar and another witness under recovery mahazar. (xiv) The accused also took PW24, PW13 and another witness to his house at Thiruvakkarai and produced checked necklace M.O.24 and the same was recovered by PW24 under relevant recovery mahazar. He also recovered two cellphones produced by the accused from his house under relevant seizure mahazar, Ex.P33. (xv) PW10 Usman sold three cyanide pellets for a sum of Rs.27/= to PW14 Senthil on 13.2.2007. PW14 procured those three cyanide pellets from PW10 on 13.2.2007 as per the request made by the accused who was his friend and classmate and entrusted to the accused. PW24 examined those two witnesses and recorded their statements. (xvi) The accused was, thereafter, remanded to judicial custody on 28.2.2007. PW21 Mr.Vijayakumar, learned Judicial Magistrate recorded the statements of PW1 and PW11 under section 164 of the Code of Criminal Procedure on the basis of the requisition made by PW24. PW23 Mr.B.Haridoss, learned Judicial Magistrate also recorded the statements of PW9 and PW14 under section 164 of the Code of Criminal Procedure as per the requisition made by PW24. (xvii) PW17 Mallika, the Forensic Sciences Expert has opined in her report Ex.P18 that there was 350 mg cyanide found in the intestine sent for examination. She has also opined in her report, Ex.P19 that the pellets alleged to be cyanide pellets recovered from the Maruti Esteem Car were also found to be cyanide pellets. (xviii) PW12 Arvind Kumar, Junior Executive Engineer attached to Aircel furnished Cellphone particulars, Ex.P14. PW24 also received a report, Ex.P34 from BSNL Engineer. Having completed the investigation, PW24 filed final report as against the accused before the learned Judicial Magistrate on 11.5.2007. (xix) The incriminating portions found in the testimony of the witnesses examined on the side of the prosecution were putforth to the accused in the form of questionnaire under section 313 of the Code of Criminal Procedure. The accused has submitted that the deceased used to come to Thiruvakkarai Temple frequently; PW2 did not make a call to him at about 9.00 to 9.30 pm on 14.2.2007; the family of the deceased was known to him for the past five years; he paid visits to their house on two occasions; the deceased Suresh Bora used to discuss all matters with him; the deceased Suresh Bora, having searched him in Thiruvakkarai Temple, came to his paternal uncle's house at about 11.30 pm on 14.2.2007 to see him; the deceased handed over a jewel bag and cash bag to be kept with him and thereafter he left; he informed this fact to PW11 at about 1.30 am on 15.2.2007. He thereafter, passed on the said information to Pinkie the daughter of the deceased over phone; it is true that the cash and https://hcservices.ecourts.gov.in/hcservices/ jewel bags were recovered at his instance at about 1.30 am on 16.2.2007 from PW9 Kumaresan, but, he was not aware as to what was inside those two bags; when he went to the police station, he was detained over there; he had not seen anybody thereafter; nobody spoke to him over phone in the morning on 15.2.2007; he had not handed over the cellphone on 27.2.2007. (xx) The accused also filed a separate statement under section 313 of the Code of Criminal Procedure. The sum and substance of the said statement reads as follows:- His family and himself knew the deceased Suresh Bora and his family members for more than five years. Suresh Bora used to visit Vakrakaliamman Temple at Thiruvakkarai, Villupuram District, where his father and his other relatives were poojaris/priests. On certain occasions, he used to bring cash and jewels to be kept at the feet of the deity for performing pooja. On 14.2.2007, when the accused was at Pondicherry at his relatives house, Suresh Bora came to Pondicherry at about 11.00 pm with two bags containing cash and jewels and requested him to perform pooja with those two bags. But, the accused replied that it was too late to do pooja. Therefore, Suresh Bora informed him that he would come the next day to do pooja and left that night itself leaving the bags containing cash and jewels with the accused for safe custody. The same night, little after 12.00 midnight, PW9 Kumaresan came to his relatives house at Pondicherry and asked him to talk to PW11 Sherenik Mehta. When the accused spoke to Sherenik Mehta, he informed the accused that Suresh Bora had not returned home and asked him to call up Suresh Bora's house immediately. The accused informed Sherenik Mehta that Suresh Bora had entrusted to him two bags of cash and jewels brought by him for doing pooja for safe custody and promised to come the next day. The accused also called up the deceased Suresh Bora's house and informed Pinkie, the daughter of Suresh Bora of the aforesaid facts. On 15.2.2007, Suresh Bora did not come as promised and therefore, the accused started for Chennai carrying his personal money of Rs.3,00,000/= for purchasing raw materials for the company. Before he left for Chennai, he met PW9 Kumaresan and handed over the two bags and asked him to keep them safe. He reached Suresh Bora's house at about 4.30 pm on the said day. PW24 Inspector of Police was present at Suresh Bora's house. Pinkie, the daughter of the deceased informed PW24 that Suresh Bora had left two bags containing cash and jewels with the accused. The accused also informed PW24 Inspector of Police that those two bags were entrusted to PW9 Kumaresan for safe custody. Thereafter, PW24 did not permit him to go and kept him in his custody. The Inspector of Police seized a sum of Rs.3,00,000/= kept by him for purchasing raw materials for his company. He was kept the whole day on 15.2.2007 in the police station without arresting him. PW9 Kumaresan produced two bags at the instance of the accused on 16.2.2007. PW24 opened the two bags and found cash of Rs.27,00,000/= and gold jewels weighing 13-1/4 kgs. On 17.2.2007, https://hcservices.ecourts.gov.in/hcservices/ the accused was remanded to judicial custody. On 27.2.2007, though he was taken police custody, he was kept in the police station itself for two days and was not taken anywhere. No recovery of any jewels or mobile phone was made at his instance on 27.2.2007. The sum of Rs.3,00,000/= seized from the accused by PW24 does not belong to Suresh Bora. The mahazar witness PW7 Rajesh, PW8 Dharmichand and PW13 Santhosh Kumar were not spotted by him at any time. In all probabilities, Suresh Bora, who had some family problems, would have put an end to his life. 3. Neither oral nor documentary evidence was let in on the side of the defence. 4. The Trial Court, having thoroughly adverted to the evidence to establish the close relationship of the accused with the deceased, the evidence to show that the deceased set off for worship after he received a phone call from the accused, the materials to show that the deceased left his office in a Maruti Car with cash and jewel bags, the purchase of cyanide by the accused on the date previous to the occurrence, detection of two cyanide pellets in the Maruti Esteem Car M.O.27 in the possession of the accused, the medical evidence to establish that the deceased died a homicidal death due to cyanide poisoning, recovery of cash and jewels carried by the deceased before his death, the conduct of the accused and the admission made by him in the statement under section 313 of the Code of Criminal Procedure, handed down a verdict of conviction for offences punishable under sections 364, 392 read with section 397, 302 and section 201 of the Indian Penal Code . 5. It is the case of the prosecution that the accused, having made arrangement for poisoning the deceased to death with an intention to commit robbery, abducted him, committed murder and robbery and screened the evidence by transporting the dead body of Suresh Bora in the Maruti Car owned by the deceased and parked in the parking slot of Apollo Hospital, Chennai. 6. Homicidal death due to cyanide poisoning:- PW19 Dr.Udayasankar, who conducted post mortem examination on the dead body of Suresh Bora, had detected cyanide in both the lungs. In the toxicology report submitted by PW17 Mallika, she had mentioned that she had detected cyanide equivalent to 350 mg of sodium cyanide in the stomach. It is true that PW19 Dr.Udayasankar had not given any final opinion based on the said Toxicology report submitted by PW17 Mallika. But, PW19, Dr.Udayasankar has deposed before the court that Suresh Bora would have died due to cyanide poisoning on account of intake of cyanide. PW24 investigating officer in this case also has stated that the post mortem Doctor informed him during the course of investigation that it was a case of cyanide poisoning. The above facts and circumstances would unerringly establish that Suresh Bora died a violent homicidal death due to cyanide poisoning. https://hcservices.ecourts.gov.in/hcservices/ 7. There is no ocular testimony to establish the case of the prosecution. The prosecution banks on various circumstances to establish its case. Let us now deal with the various circumstances projected by the prosecution to establish its case. 8. Advisor – Devotee relationship:- PW2 Manju Bora the wife of the deceased would speak to the fact that her husband Suresh Bora developed friendship with the accused as he was the son of the person at the helms of Thiruvakkarai Temple frequented by her husband. It is her version that the deceased would not venture to do anything without taking advice from the accused. PW3 Shanthilal Bora, father of the deceased would state that the deceased used to clinch any deal for that matter only with the advice of the accused. There is no reason to disbelieve the aforesaid testimony of Pws.2 and 3 about the friendship of the deceased with the accused. The accused also in his statement under section 313 of the Code of Criminal Procedure, has candidly admitted that the deceased Suresh Bora would regularly visit Vakrakaliamman Temple at Thiruvakkarai to perform pooja wherein his father and other relatives were poojaris/priests. The accused and his family knew the deceased Suresh Bora and his family members for more than five years. In view of the above, we find that the deceased, who was the devotee of Vakrakaliamman Temple at Thiruvakkarai, developed close friendship with the accused who used to give advice to him. 9. Proposal to meet the accused:- (a) PW2, the wife of the deceased would state that her husband informed her in the morning on 14.2.2007 that the accused telephoned him and therefore, he had proposed to go over to the temple. The deceased also informed PW2 that the accused had proposed to come down to Chennai on that day. (b) The learned Senior Counsel appearing for the appellant would submit that the telephonic conversation between the accused and the deceased was not established. The author of Ex.P34 BSNL Call details was not examined before the court. The same has been marked only through the investigating officer. Therefore, he would submit that the prosecution failed to establish the alleged telephonic conversation the accused had with the deceased in the morning on 14.2.2007. Per contra, the learned Additional Public Prosecutor would submit that there is no no reason to doubt the evidence of PW2 inasmuch as the accused and the deceased had developed close friendship. No wonder the accused contacted the deceased over phone about his arrival at Chennai on 14.2.2007, it is submitted. (c) It is in evidence that the deceased, who was the devotee of the temple at T.Nagar and Thiruvakkarai used to meet the accused often and take advice to enter into any venture. Therefore, it is not surprising that the information about the programme of the accused at Chennai was informed by the accused to the deceased. Though the telephonic conversation as spoken to by PW2 was not https://hcservices.ecourts.gov.in/hcservices/ established by examining the Engineer who issued Ex.P34, we find no reason to reject the natural version of PW2 as regards the telephone message received by the deceased from the accused in the morning on 14.2.2007. The prosecution has thus established that the accused contacted the deceased in the morning on 14.2.2007 over phone and intimated him of his proposed visit to Chennai. It is also proved that the deceased had a proposal to meet the accused on 14.2.2007. 10. Set off from the jewellery shop in Maruti Car with cash and jewel bags:- (a) PW4 Arokyasamy was the employee of Mitalal Jewellery shop run by the deceased. He testifies that he purchased articles required for performing pooja as directed by the deceased Suresh Bora at about 6.00 pm on 14.2.2007. PW1 Vishal, the Manager of the said shop would state that the deceased Suresh Bora asked him to keep the cash and jewel bags in Maruti Car bearing registration No.TN 09 AM 5139 marked as M.O.25. PW1 and PW4 would also state that at about 6.30 pm on 14.2.2007, the deceased Suresh Bora proceeded to Venkateswara Temple at T.Nagar in the said car. PW1 would further depose that the deceased informed him that he would come back around 8.00 pm on the same day. PW2 would also state that her husband informed her that the cash and the jewels had to be made ready as he had proposed to go over to Venkateswara Temple at T.Nagar. It is very important to note that PW2 has categorically deposed that at about 6.30 pm on 14.2.2007, Suresh Bora left the jewellery shop on receiving telephonic message from Vasanth after informing PW2 that he would come back around 8.00 pm. PW3, father of the deceased also would state that at about 7.00 pm on 14.2.2007, Suresh Bora proceeded to Venkateswara Temple at T.Nagar. The aforesaid facts can be spoken to only by the persons who are very close to the deceased Suresh Bora. Therefore, the evidence of P.Ws.1 to 4 are found to be credible and trustworthy. We conclude that Suresh Bora left his shop in his Maruti Car, M.O.25 with cash and jewel bags to Venkateswara Temple at T.Nagar as per the instruction emanated from the accused. (b) Of course, the learned Senior counsel appearing for the appellant would submit that there is no reference in the first information report lodged by PW1 about cash and jewel bags taken by Suresh Bora alongwith him while going by Maruti Car. PW1 had not suspected murder of his employer for gain. Further, it is the admitted case of the accused that the cash and jewellery bags were entrusted by the accused to him.