B A I L S L I P C.A.No.637/2004: The Accused (A1,A2,A3,A4,A6,A7) were directed to be released on bail in and by order of this Court dated 25.6.2004 made in Crl.MP.No.6626 of 2004 in C.A.No.637 of 2004. C.A.No.637/2004: The Accused (A5,A8,A9) were directed to be released on bail in and by order of this Court dated 12.5.2004 made in Crl.MP.No.5531 of 2004 in C.A.No.637 of 2004. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 Mr.S. Rathnakaran https://hcservices.ecourts.gov.in/hcservices/ For Appellant Nos. : Mr.S.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 Mr.S. Rathnakaran 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.164/08: Mr.K. Venkataramani, Amicus Curiae 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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, https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ Accused Offences Sentence 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 https://hcservices.ecourts.gov.in/hcservices/ Accused Offences Sentence 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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