IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.11.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRIMINAL APPEAL NO.93 OF 2009 Nazeer @ Nazeer Mohammed .. Appellant Vs. State rep. by Inspector of Police, Thirunallar Police Station, Karaikkal District .. Respondent (Crime No.196/2006) This criminal appeal is preferred under Section 374(2) Cr.P.C against the judgment of the learned Additional Sessions Judge, Puducherry at Karaikkal made in S.C.No.56 of 2007 dated 20.01.2009. For Appellant : Mr.K.Srinivasan. For Respondent : Mr.M.R. Thangavel Govt.Advocate (Crl) (Pondy) JUDGMENT (The judgment of the Court was made by V.PERIYA KARUPPIAH, J.) This appeal is directed against the judgment of conviction and sentence passed against the 1st accused u/s. 302 and 201 I.P.C to undergo life imprisonment for the offences u/s.302 I.P.C and to pay a fine of Rs.10,000/- in default to undergo one year simple imprisonment and for the offences u/s. 201 I.P.C to undergo three years rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for three months and both the sentences are directed to run concurrently. 2.The brief facts necessary for the disposal of the appeal are stated as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) According to the prosecution, on 03.09.2006 at about 23.00 hours at Door No.211, Sri Venkateswara Nilayam, 6th A cross Bagupalli Nagar, Bangalore, the accused A1 and A2 in furtherance of their common intention caused the death of Ravi by smothering, in order to sell the car under his possession which belongs to the employer of the deceased (defacto complainant), and with the knowledge that smothering will lead to death of the said Ravi they had rendered themselves to be punished u/s. 302 I.P.C r/w. 34 I.P.C. (b) On the complaint given by the employer of the deceased about the missing of the car with driver Ravi the case was registered by the Thirunallar Police in Cr.No.196/2006 u/s. 408 I.P.C and had investigated the case. Subsequently the offence was altered from 408 I.P.C into 364,302, 201 I.P.C r/w. 34 I.P.C against both accused. After completion of investigation the charge sheet has been filed against the accused A1 and A2 and was taken on file and committed to the Sessions court and the case was taken on file in S.C.No.56 of 2007 and was made over to Additional Sessions Court of Karaikkal necessary charges were framed and trial was conducted by the said court. Prosecution had produced 24 witnesses and 36 documents and 27 material objects. 3. The case of the prosecution as spoken through prosecution witnesses would be as follows: P.W.1 is the complainant. P.W.1 was the owner of the Scorpio car bearing Registration No.PY-02-D-0510 and he appointed one Kannian @Parvatheeswaran as his driver on payment of Rs.1,000/- per month and on 02.09.2006, driver Ravi another driver who came substitute for the driver Senthilkumar told P.W.1 that his friend's relatives are scheduled to arrive at Bangalore airport and they want a vehicle for that and accordingly he had permitted the driver Ravi to go for Bangalore to receive the relatives (b) On 03.09.2006 at about 09.00 p.m the driver Ravi contacted through the cellphone to P.W.1 bearing number 9842570540 and told him that the persons who arrived from foreign country were tired and therefore he would come on the next day after dropping them. P.W.1 told him to return accordingly. But the driver Ravi did not return either on 04.09.2006 or on 05.09.2006. The contact of the aforesaid cellphone number was found cut off. When P.W.1 had contacted his friend Senthilkumar about the relatives arrival from foreign country at Bangalore Airport, he said that he had no such relatives to arriver from foreign country. Knowing the foul play, P.W.1 with his friends had searched for his vehicle at Trichy, Salem and Chennai. Thereafter when P.W.1 contacted the house of the driver Ravi, his elder sister namely Kalarani told him that driver Ravi contacted and told her that he would return on 06.09.2006 or 07.09.2006. Since he https://hcservices.ecourts.gov.in/hcservices/ did not return accordingly, P.W.1 gave a complaint on 13.09.2006 with Thirunallar Police Station about missing of his car and its driver Ravi. (c) P.W.2- Senthikumar had supported the evidence of P.W.1 to the effect that he did not ask the driver Ravi to receive the relatives at Bangalore airport as informed by the said Ravi to P.W.1. P.W.5 who was working in the M.J. Wines at Periyakadai street, Ambakarathur, on 02.09.2006 at about 2.30 or 03.00 p.m saw the deceased driver Ravi stopping (M.O.1) the car near his wine shop he went there and he gave him Rs.100/- to buy good liquor and accordingly P.W.5 bought quarter bottle signature whisky and gave it to Ravi and at that time he saw the appellant/A1 along with some other person sitting in the car and thereafter they had taken the vehicle and gone towards the side of Peralam. (d) P.W.6 would speak to the effect that he was working in a petrol bunk and on 02.09.2006 at about 02.30 p.m the deceased Ravi had driven the M.O.1- Scorpio car for filling diesel and they have filled the diesel for Rs.1700/- and after filling the diesel for the said vehicle they proceeded on the side of Peralam. (e) P.W.18 is the Inspector of Police at Chikkajala Bangalore city, he would speak to the effect that on 04.09.2006, when he was working as Station House Officer of Ramnagar Police Station, on complaint from one Mari Lingaiah that unknown body aged about 35 to 40 years was found in a suspicious circumstance and therefore he received a complaint in Ex.P.18 and on that basis he had filed a F.I.R in Cr.No.19/2006 of Ramnagar Police Station and commenced the investigation. He had despatched the said F.I.R the SDM concerned on 04.09.2006 itself and he took photograph of the body and he also saw a driving licence belonging to one Nazeer Ahamed s/o Jainubudeen, No.11, Pillayar Koil St., Nallambal, Karaikkal it was also seized through Seizure Mahazar and caused photograph be taken and sent them to SDM Ramnagar in property form Ex.P.21. He had conducted an inquest on the dead body of unknown person in the presence of witnesses and prepared inquest report Ex.P.22 and Ex.P.23. The dress materials of the deceased person was sent to Ramnagar SDM. He further requested P.W.13 – Doctor to conduct autopsy and he appointed two constables H.C. 627 and P.C.1310 to identify the person. P.W.13 received the body of unknown person and conducted post mortem on the said body on 04.09.2006 in between 11.40 a.m and 02.05 p.m, he had noted various injuries on the body and had given a finding that the death was due to asphyxia as a result of smothering. The Post Mortem Certificate given by him was produced as Ex.P.11. Thereafter the body of the unknown person was received and buried with the help of the Ramnagar Municipality staff at Hindu Burial Ground near Ramnagar town on 05.09.2006. https://hcservices.ecourts.gov.in/hcservices/ (f) On 23.09.2006, A1 was arrested on suspicion and was enquired by the Investigating Officer of Thirunallar police station and at 08.15 a.m he had also given a confession statement admitting the crime and it was recorded in the presence of witnesses and in pursuance of the confession given by him, A2 was arrested at his house by 01.30 p.m and the confession given by A2 was recorded by the P.W.23 and the motor cycle belonging to the A1 was also seized through Seizure Mahazar and upon his confession they took him to the S.S.R Petrol Bunk where the accused A1 was identified by the witness Bala @ Balasubramaniyan and the statement was recorded by him. Thereafter, he brought both the accused to Police Station and prepared papers for remanding those accused. Thereafter, he arranged for recording the statement u/s.164 Cr.P.C of A2 before the Judicial Magistrate on 22.09.2006. Subsequently, he applied for police custody of A1 on the same day and took A1 by 03.05 p.m in police custody and after verification of his health, A1 was taken to Bangalore through the police vehicle and Sub Inspector of Police Venkatachalapathy, Head constable 832, Police constable Nos.1339,1522 were also taken along with him on 26.09.2006 at about 02.15 p.m. A1 had taken them to the place where the body of the deceased Ravi was thrown which was identified by him. The Investigating Officer P.W.23 had enquired about the registration of the case over the finding of the dead body of Ravi at Ramnagar Police Station and accordingly the Sub Inspector of Police Harsha has been answering affirmative and gave particulars of the case registered u/s. 174 Cr.P.C and he also shown the photographs of the dead body taken in respect of the said case. The brother of the deceased Ravi- Meganathan had seen the photos and identified that the dead body was belonging to his brother deceased Ravi. (g) P.W.23, the Investigating Officer had received the papers in respect of the said case registered by the Inspector of Police Ramnagar Police Station regarding the finding of the dead body of Ravi in Cr.No.19/2006 of Ramnagar Police Station. Accordingly, the F.I.R, Seizure Mahazar and other papers including photographs which had been collected by the Inspector of Police of Ramnagar Police Station was received after examination of the witnesses. P.W.23 thereafter examined the Post Mortem Doctor and other witnesses at Bangalore and recorded their statement and also other witnesses in Karaikkal and had recorded their statement and filed the charge sheet before the jurisdictional Magistrate against the accused A1 and A2 u/s. 364,302,201 r/w.34 I.P.C and 394 r/w. 34 I.P.C. (h) After examination of the witnesses including P.W.24 the accused were questioned pointing the incriminating circumstances in the evidence of prosecution u/s. 313 Cr.P.C to which the accused had flatly denied as false. They did not produce any defence witnesses on their side. https://hcservices.ecourts.gov.in/hcservices/ 3. The lower court had convicted and sentenced A1 u/s. 302 and 201 I.P.C and sentenced him to undergo imprisonment for life for the offences u/s. 302 and to pay a fine of Rs.10,000/- in default to undergo one year simple imprisonment and to undergo rigorous imprisonment for three years for the offence u/s. 201 I.P.C and also to pay a fine of Rs.1,000/- in default to undergo three months simple imprisonment. 4. The present appeal has been filed by the appellant/A1 against the aforesaid conviction and sentence passed against him. 5. Learned counsel for the appellant/A1 Mr.K.Srinivasan, would submit in his argument that the lower court had wrongly come to a conclusion that the circumstantial evidence produced by the prosecution had established the case of the prosecution, whereas the evidence produced on the side of the prosecution were not reliable. He would further submit in his argument that the evidence of P.W.6 who is said to be a key witness for proving the last seen theory on the part of the prosecution has been introduced by the prosecution and the said evidence cannot be relied upon since there was no receipt produced for the purchase of diesel to the tune of Rs.1,700/- at the petrol bunk. The case of the prosecution that the said evidence of P.W.6 would form part of the chain of circumstantial evidence would not inspire confidence and the consequential evidence adduced by P.W.5, P.W.11. P.W.15 and P.W.16 would be of no use for the prosecution. He would again submit in his argument that the identification of the body found at Bangalore Mysore National Highway was not properly identified since the body was not exhumed and identification of the body was made. The identity as spoken by P.W.10, the brother of deceased Ravi cannot be believed since he had seen only the photograph of the dead body of unknown person and identified as the body of the deceased Ravi. He would further submit that the conclusive proof regarding the identification of dead body which was already buried would be only through exhuming the body and even then identity is not possible, it should be done through super imposition of the skull and the said scientific method was not followed in this case and therefore, identification of the dead body as that of the deceased Ravi would be of no use and the entire prosecution case is unreliable with the remaining evidence. He would also submit in his argument that the confession statement said to have been given by A1 and the recovery in pursuance of the said confession cannot also be believed as it was a stage managed one. Corresponding evidence produced by prosecution through P.W.8 and P.W.9 are not acceptable and therefore the important link for completing the circumstantial evidence is lost. He would further submit in his argument that the lower court while acquitting A2, it should have acquitted A1 also because the same charges were levelled against both of them. He would further submit in his argument that the prosecution had failed in its attempt to prove the cause of death https://hcservices.ecourts.gov.in/hcservices/ due to poison as no viscera has been preserved by the post mortem Doctor to establish that it is was purely a poison death. He would further submit that the alleged connection of the Cr.No.19/2006 with Ramnagar Police Station cannot be linked with present case since there is no clinching evidence to show that the driving licence of the appellant/ A1 was recovered near the dead body of the unknown person in the Ramnagar case in Cr.No.19/2006. Therefore, he would submit that nothing is available against the appellant/A1 to prove the case and all links of the chain of circumstantial evidence were not completed by the production of the acceptable evidence by the prosecution and therefore the benefit of doubt should be been given by the lower court and the appellant/A1 should have been acquitted. The learned counsel for the appellant/A1 requested the court to set aside the judgment of conviction and sentence passed against the appellant/accused and to acquit the appellant and thus the appeal be allowed. 6. We have heard the learned Government Advocate Mr.M.R. Thangavel, Puducherry and have given anxious and serious consideration to the arguments advanced on either side. 7. The occurrence is said to have taken place on 02.09.2006 at about 12.00 hours when the accused A1 and A2 in furtherance of their common intention to abduct one Ravi s/o Kanniyan in the car belonging to his employer bearing Registration No. PY-02-D-0510 and to murder him for gain by stealing the car and selling them to third parties, they with the knowledge of committing the said crime had contracted the said car, as if they wanted to go to Bangalore, took the vehicle and proceeded to Bangalore and from Bangalore they took the car to Mysore on 03.09.2006 at about 23.00 hours near Jain Temple complex in the Bangalore-Mysore National Highway, with the intention to cause murder of the said Ravi by smothering caused his death and had disposed the body of said Ravi in order to avoid legal punishment and in furtherance of committing the offences with common intention during the said course of transaction, they took the car with them and thereby committed robbery after murdering the said Ravi. 8. According to the evidence of P.W.1, the deceased Ravi was his driver and he informed him on 02.09.2006 that the friend of P.W.1 namely Senthilkumar hired the car to receive his relatives at Bangalore Airport who were returning through airways and therefore, P.W.1 permitted the said Ravi to take the vehicle and on 03.09.2006, at about 09.00 p.m when the driver Ravi was contacted through his cellphone he would reply that the persons came from abroad were taking rest in Bangalore and therefore he would come on the next day. But on 04.09.2006 and on 05.09.2006 the driver Ravi did not turn and when P.W.1 enquired with his friend Senthilkumar he informed that no relative is coming from abroad and when P.W.1 contacted his driver Ravi his cellphone was switched off and therefore he was searching for his car. He could not find out. By virtue of the evidence adduced https://hcservices.ecourts.gov.in/hcservices/ by P.W.1, we could understand that the deceased Ravi had taken the car as if he was taking the car to Bangalore and went on 02.09.2006. However, the evidence of P.W.5 would go to show that when he was working in the wine shop in Periyakadai street, Ambakarathur, the deceased Ravi who was known to him had come along with the appellant/A1 who wa also known to him, and parked the car away from the shop and when he went over there the deceased Ravi gave him Rs.100/- and asked him to buy liquor when he had near the car, he could see that the appellant/A1 and yet another person who was unknown to him in the M.O.1- car and they had received the liquor and gone away. P.W.6 who was a person working in the Petrol Bunk, would speak to the effect that he had seen the deceased Ravi driver in the M.O.1-car with appellant/A1 and yet another person when they filled the fuel for Rs.1700/- at their bunk and both the deceased Ravi and A1 were very much known to him. 9. We have already seen that the deceased Ravi was contacted by P.W.1, when he was at Bangalore through his cellphone and deceased Ravi had spoken to him that the persons from abroad wanted to take rest and therefore he could return to Thirunallar only next day. The time of telephone speech was stated to be at 09.00 clock in the night on 03.09.2006. The evidence of P.W.1 would show that the said Ravi had joined with A1 and yet another person who had gone with him in taking the vehicle from the custody of P.W.1 to Bangalore and he was found to be alive on 03.09.2006 by 09.00 p.m. 10. The evidence of P.W.18 – Police Inspector at Chikkajala, Bangalore city, Karnataka State, would speak to the effect that when he was working as Inspector of Police at Ramnagar Rural Police on 04.09.2006, at about 08.30 a.m he received a complaint that death of a male unknown person near Vadarahalli aged about 35 to 40 years alleging that it was a suspicious one and a complaint in Ex.P.18 was lodged and he registered the case in Cr.No.19/2006 u/s. 174 Cr.P.C and the F.I.R- Ex.P.19 was forwarded to SDM – Ramnagar on 04.09.2006 itself and he immediately visited the spot with photographer and took photographs of the dead body of a male person and found a driving licence near by the dead body and the said driving licence was belonging to one Nazeer Ahamed s/o. Jainabudeen, No.11, Pillayar Koil st., Nallambal, Karaikal which was produced as M.O.18 and he seized the same under the cover of Mahazar Ex.P.20 and M.O.18 was sent to SDM, Ramnagar in the property form Ex.P.21 and he photographed the dead body and the driving licence M.O.19 and the negative is M.O.20. Thereafter, he conducted inquest in the hospital mortuary in the presence of witnesses and the inquest report are Ex.P.22 and Ex.P.23. The dress material seized from the dead body was sent to SDM, Ramnagar and after giving a requisition to Doctor Post mortem was done on the dead body of unknown person. The photograph of the dead body was published in all the local dailies, he had appointed two policemen HC 627 and PC 1310 to identify the deceased person and thereafter he buried the body with the help of Ramnagar https://hcservices.ecourts.gov.in/hcservices/ Municipality Staff in the Hindu Burial Ground near Ramnagar Town. The evidence of P.W.18 would also go to show that the accused was brought by the Sub Inspector of Thirunallar, Tamil Nadu on 26.09.2006 that he had shown the place where the dropping of the body of unknown person which they had found on 04.09.2006 and one relative of the deceased namely Meganathan identified the dead body through the photo at the Police Station that the dead body belongs to one Ravi of Karaikkal. The Thirunallar Police took P.W.18 along with the said accused Nazeer Mohamed, to the place where the accused had dropped the body and the accused could identify both the places as one and the same. Since the Thirunallar Police is investigating the case and they requested the transfer of the case, he transferred the case to Judicial Magistrate II Karaikkal, and sent all the relevant papers to the Thirunallar Police through RPAD and sent the dress material through courier service. We can understand through the evidence of P.W.18 that the driving licence of the appellant/A1 was found near the body and the Seizure Mahazar was prepared and they were promptly sent to the court and thereafter they have been transmitted to the Thirunallar Police. Ex.P.19 F.I.R would go to show that the case was registered by the Ramnagar Police on 04.09.2006 at 09.00 a.m and the driving licence of the appellant/A1 was seized on the same day through Ex.P.20 and Ex.P.21. We could see from the evidence of P.W.18 that the dead body of the unknown person (deceased Ravi) and the driving licence of the appellant/A1 were photographed together. In these circumstances, the evidence adduced through P.W.1, P.W.5, P.W.6 and P.W.18 would go to show that the appellant/A1 along with another person and deceased Ravi were lastly seen by P.W.5 and P.W.6. on 02.09.2006 and the deceased Ravi was lastly heard by P.W.1 from Bangalore and his dead body was found on 04.09.2006 at 09.00 a.m by P.W.18. The said dead body was recovered and subjected to post mortem and a case was registered by P.W.18 and thereafter the identification of the dead body was done by his brother Meganathan through photograph of the dead body Ravi. According to the evidence of the Doctor, who conducted post mortem on the body of the deceased Ravi the death would have been due to asphyxia as a result of smothering. He would also speak to the effect that ante-mortem injuries sustained by the said dead body would have been due to the rolling down of the body from a higher level to lower level. 11. A perusal of the Post Mortem Certificate – Ex.P.11 would go to show that the death would have been caused due to asphyxia as spoken by the Doctor P.W.13. The identification of the said body by the brother of the deceased Ravi – P.W.10 would go a long way to show that the said dead body connected with crime No.19/2006 on the file Ramnagar Police belonged to the deceased person Ravi in this case. 12. In the aforesaid circumstances, the death of deceased Ravi would have happened, after he spoke to P.W.1 from Bangalore by 10.00 p.m on 03.09.2006. The evidence coupled with the evidence of the Doctor P.W.13 and the Inspector of Police of Ramnagar Police Station https://hcservices.ecourts.gov.in/hcservices/ P.W.18 would go to show that the deceased Ravi was done to death by smothering and his dead body was thrown near the Jain Temple complex on the side of Bangalore to Mysore National Highway. 13. It has been urged by the learned Additional Public Prosecutor that the accused was arrested and he had given confession and in pursuance of confession leading to recovery M.O.1- car was recovered and M.O.2- Stepney was also recovered and therefore, the appellant/A1 and yet another person should have caused the death of deceased Ravi in order to gain unlawfully by stealing the car and selling them. It is also further urged by the prosecutor that the seizure of the said car at the instance of the A1 would go a long way to show that they involved in the offences. However the evidence of P.W.1 would go to show that both the accused A1 and A2 were seen by him on 13.09.2006 at Thirunallar Police Station itself. This would show that the seizure said to have been obtained subsequently on 22.09.2006 cannot help the prosecution. However, the chain of proof put forth by the prosecution on the basis