IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 8-3-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.665 of 2009 1.Boopathi @ Periya Boopathi 2.Boopathi @ Chinna Boopahi .. Appellants / Accused vs State rep. By Inspector of Police B-5, Singanallur Police Station Coimbatore District (Crime No.845 of 2007) .. Respondent / Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court No.I, Coimbatore, made in S.C.No.4 of 2009 dated 16.9.2009. For Appellants : Mr.M.Vijayakumaran For Respondent : Mr.V.R.Balasubramanian Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No.I, Coimbatore, made in S.C.No.4 of 2009 whereby the appellants two in number stood charged, tried and found guilty and awarded punishment as follows: ACCUSED CHARGES FINDING PUNISHMENT A-1 & A-2 120(B) IPC Guilty 5 years RI with a fine of Rs.1000/- and default sentence https://hcservices.ecourts.gov.in/hcservices/ ACCUSED CHARGES FINDING PUNISHMENT A-1 & A-2 302 IPC Guilty Life imprisonment along with a fine of Rs.2000/- and default sentence A-1 & A-2 201 IPC Guilty 5 years RI with a fine of Rs.1000/- and default sentence 2.Necessary facts for the disposal of this appeal can be stated as follows: (a) The first appellant shown as A-1 was doing building contract work, and A-2 is his friend. The deceased Gopi, the son of P.W.1 and a close relative of P.W.2, was working under A-1 as mason. A-1 was to pay Rs.3500/- to the deceased towards coolie. When the deceased demanded the same, there was an evasive answer from A-1, and the deceased used hard words. Aggrieved over the same, A-1 hatched up a plan with A-2 conspiring together to put an end to his life. (b) On 25.8.2007, in the evening hours, A-1 and A-2 took the deceased along with them, and P.W.3 also joined with them. They went to a brandy shop and consumed liquor. At that time, the deceased Gopi was demanding Rs.3500/-. Immediately, A-1 and A-2 asked P.W.3 to go home. Then they took him to Kallukuli at Irugur. A-1 and A-2 gave brandy to the deceased. Further, at that time, when Gopi got intoxicated, A-1 held his legs, lifted him and threw under the rock saying "you should not live further". The deceased sustained head injury. Then, A-1 removed the pant and shirt of the deceased, held his legs and took him near Kallukuli water. A-1 pressed his legs and told A-2 to cut his neck. Accordingly, A-2 took a hidden aruval and cut his neck and thereby caused his death. Then they ran away from the place of occurrence. (c) P.W.1 who is the father of the deceased, went in search of his son along with P.W.2. They also stayed at Coimbatore for a few days, and despite search, they could not. Thereafter, P.W.1 went to Coimbatore on 2.9.2007, again, and he made a search. At that time, P.W.3 came there and informed him that A-1 and A-2 were with him at Brandy Shop on 25.8.2007, and immediately, P.W.1 proceeded to the respondent police station and gave Ex.P1, the report, to P.W.18, the Sub Inspector of Police, on the strength of which a case came to be registered in Crime No.845 of 2007 under Sec.302 of IPC. Ex.P14 is the printed FIR, which was despatched to the Court. (d) On receipt of the copy of the FIR, P.W.20, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P17. They were able to recover only the trunk part of the body on which inquest was conducted in the presence of https://hcservices.ecourts.gov.in/hcservices/ witnesses and panchayatdars, and an inquest report, Ex.P18, was also prepared. It was actually sent for the purpose of postmortem. (e) P.W.16, the Doctor, attached to Coimbatore Medical College Hospital conducted autopsy on the trunk of the body and gave opinion that he died due to multiple injuries and also on the neck and has issued a postmortem certificate, Ex.P11. The final report received from the Forensic Sciences Department, Coimbatore, was marked as Ex.P20. (f) Pending investigation, A-2 was first arrested on 9.9.2007. He gave a confessional statement voluntarily. The same was recorded. The admissible part is marked as Ex.P4. He identified the place where the head was buried. Then it was exhumed in the presence of P.W.19, the Tahsildar. P.W.19 conducted inquest on the head and prepared an inquest report, Ex.P15. Ex.P13 is the exhumation report given by P.W.17, the Doctor, wherein he has opined that the deceased would appear to have died due to decapitation injuries sustained by him. A-2 also produced M.O.5 aruval, which was recovered under a cover of mahazar. (g) Pending investigation, A-1 was arrested on 10.9.2007. He gave a confessional statement in the presence of P.W.14 and another. The same was recorded. The admissible part is marked as Ex.P8 following which he produced a jeans pant, M.O.8, which was worn by the deceased at the time of occurrence, and the same was also recovered under a cover of mahazar. (h) The skull was to the laboratory sent for the purpose of superimposition test. P.W.15, the Doctor, after conducting superimposition test, has opined that it was that of the deceased Gopi. Ex.P10 is the superimposition test. (i) All the material objects were subjected to chemical analysis by the Forensic Sciences Department, and Ex.P20, the chemical analyst's report, was placed before the Court. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 20 witnesses and also relied on 20 exhibits and 8 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and entered a judgment of conviction and sentenced them to imprisonment as referred to above. Hence this appeal at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the learned Counsel Mr.M.Vijayakumaran would submit that in the instant case, the prosecution came with a specific story that the occurrence has taken place at about 11.00 P.M. on 25.8.2007; that https://hcservices.ecourts.gov.in/hcservices/ the complaint was given only on 3.9.2007; that the intervening circumstances noticed would clearly indicate that the prosecution story cannot, but be false; that P.W.1 is the father and P.W.2 is the close relative of the deceased; that P.Ws.1 and 2 came to Coimbatore in search of Gopi and stayed for a few days, but they could not find him; that according to them, at that time, they did not enquire about A-1 under whom he was employed; that apart from that, at the time of cross-examination, P.W.2 has stated that on 27.8.2007, they went to the police station and P.W.1 gave a complaint to the Inspector; that it would be indicative of the fact that it was the first information given to the police; that the said first information which was admittedly given by P.W.1, was not produced before the Court and thus it is a case where the first information has been suppressed; and that what was given by P.W.1 on 3.9.2007 to P.W.18, the Sub Inspector of Police, was only the second information. 5.Added further the learned Counsel that even according to P.W.3, it was he who informed to P.W.1 on 2.9.2007 itself; that what was the reason for the silence which P.W.3 was keeping all along for a period of one week, remained unknown; that had it been true, he would have informed others or P.W.1 or P.W.2 immediately as to the occurrence; but, he has not done so and hence the last seen theory spoken to by P.W.3 that they were at the brandy shop should not have been believed. 6.The learned Counsel would further submit that even according to P.W.3, he informed to P.W.1 on 2.9.2007 itself; that if to be so, one would immediately go to the police station, but P.W.1 did not go to the police station and he went to the police station only on 3.9.2007; that it would be indicative of the fact that not only there was huge delay in lodging the complaint, but also the first information has been suppressed; and that all would go to show that P.W.3 has been introduced in order to strengthen the prosecution case if possible. 7.Added further the learned Counsel that as far as the evidence of P.W.4 is concerned, he has seen only A-1 and A-2 nearby the place of occurrence; that this would not in any way indicate the commission of the crime; that as far as P.W.5 was concerned, according to him, he saw all of them nearby the place of occurrence at or about the time of occurrence; that the cross- examination of the witness has become shaky; and that under such circumstances, no evidentiary value could be attached to the evidence of P.W.4 or P.W.5. 8.The learned Counsel would further add that the superimposition test which was spoken to by P.W.15 would clearly indicate that the report should not have been relied; that according to the Doctor, all the teeth on the upper jaw were available at the time of postmortem; but, at the time of superimposition test, they were not available; and that all would go to show that the superimposition test report was one to be rejected; but, the trial Court has not rejected, but accepted the same. https://hcservices.ecourts.gov.in/hcservices/ 9.Added further the learned Counsel that as far as the conspiracy alleged to have been hatched up by the accused is concerned, there was no iota of evidence; that all would go to show that the prosecution has miserably failed to prove either the conspiracy or any one of the parts of the crime as put forth; but, the trial Court has taken an erroneous view, and hence the judgment of the trial Court has got to be set aside and they are to be acquitted. 10.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 11.It is not in controversy that one Gopi, the son of P.W.1, was employed under A-1 during the relevant time. According to the prosecution, A-1 was liable to pay Rs.3500/- towards coolie to Gopi who was working under him. When the deceased demanded the same, A-1 gave evasive reply, and he used hard words, and accordingly A-1 and A-2 hatched up a conspiracy to murder him. As far as the conspiracy part is concerned, this Court has to necessarily state that the prosecution had no evidence to place before the Court. It is settled principle of law that even though no direct evidence is available pointing to the conspiracy, the Court can infer conspiracy from the proved facts. In the instant case, this Court is of the considered opinion that the evidence adduced by the prosecution and the facts proved would be indicative of the fact that without such a conspiracy the accused could not have committed such a crime. It can be well stated that from the facts which are to be narrated hereafter, conspiracy could be inferred. 12.In the instant case, the case of the prosecution was that on 25.8.2007, A-1 and A-2 accompanied by P.W.3 took Gopi to a brandy shop, and all of them consumed liquor. At that time, there was a demand by Gopi for the payment of Rs.3500/- and at that time, both of them asked P.W.3 who accompanied them, to go home. Accordingly, P.W.3 returned. It is pertinent to point out that all the three persons namely A-1 and A-2 and P.W.3 were in the company of the deceased at that time. After that, P.W.3 left the place and all the three were actually found in the company of the deceased. Before the occurrence was over, P.W.5 has seen all of them nearby the place of occurrence. The cross-examination of P.W.5 would be indicative of the fact that he was a natural witness, and thus his evidence has got to be believed. The trial Court has rightly accepted his evidence. Shortly thereafter, P.W.4 has seen both the accused coming from the place of occurrence. Thus, the last seen theory which is also spoken to by P.Ws.3 to 5 would clearly indicate that it is a strong piece of evidence in favour of the prosecution. 13.Added circumstance is that following the complaint given by P.W.1 on 3.9.2007, and the registration of the case, the investigation was taken up by the Investigator, P.W.20, and he was nearby the place of occurrence, and the trunk of the body of Gopi https://hcservices.ecourts.gov.in/hcservices/ was found which was actually subjected to postmortem by P.W.16, who has given his opinion that he died out of multiple injuries. The fact that he died out of homicidal violence was never disputed by the appellants. 14.Added circumstance is that pending investigation A-2 was first arrested on 9.9.2007. He came forward to give a confessional statement, which was actually recorded in the presence of two witnesses. One of the witnesses has been examined before the Court. He has categorically spoken to the fact that at the time of arrest, A-2 came forward to give confessional statement, and the same was recorded, and following the same, he took the Investigator and witnesses and pointed the place where the head which was severed from Gopi's body, was buried. The same was exhumed which is also pointing to the nexus of the crime. Added further, he also produced M.O.5, aruval, which was actually used by him at the time of occurrence, and thus the production of the head of the body of Gopi and also the weapon of crime namely M.O.5 aruval, would be pointing to the nexus of the crime with the accused. 15.Apart from the above, A-1 was arrested on the next day i.e., 10.9.2007. He came forward to give a confessional statement, which was recorded in the presence of P.W.14 and another. Following the same, he produced M.O.8, a jeans pant, which was identified by the witnesses that it was the jeans pant which was worn by the deceased at the time of occurrence. Thus, the production of jeans pant by A-1 would be pointing to the nexus. At this juncture, it is pertinent to point out that while all these material objects were produced following the confessional statements given by them, the contentions put forth by the learned Counsel for the appellants do not carry any merit whatsoever. 16.Now as regards the contentions put forth by the learned Counsel for the appellants that the occurrence has taken place on 25.8.2007, and the complaint was given on 3.9.2007, this Court is of the considered opinion that there cannot be any delay in the matter because P.W.1 went to Coimbatore and made a search of his son for a few days and returned. Again he went to the place on 2.9.2007 when he was informed by P.W.3. At this juncture, it should not be forgotten that P.W.3 was a close friend of A-1 and A-2 during the relevant time, and hence one cannot expect him to come out to speak about the truth immediately. It is clear that P.W.3 informed to P.W.1 on 2.9.2007, and only thereafter, he went to the police station on the next day and even without verifying the truth or otherwise of the statement made by P.W.3, the complaint was given on 3.9.2007. The same will not in any way take away the truth or the rigor of the prosecution case. 17.As far as the contention that P.Ws.1 and 2 went to the police station, and P.W.2 was standing outside, and P.W.1 gave the complaint to the police officer, and that statement has not seen the light of the day is concerned, it is pertinent to point out https://hcservices.ecourts.gov.in/hcservices/ that P.Ws.1 and 2 came to Coimbatore in search of the deceased, and the deceased was not found. In such circumstances, it is quite natural for the father to go to the police station to report that his son was found missing. The same did not mean that he gave any information regarding the incident or would attract the provisions of Cr.P.C. Under the circumstances, the said contention cannot be given any weight at all. In the instant case, the superimposition test has been properly conducted, and P.W.15 who conducted the test, has been examined as a witness before the Court. He has given a categorical opinion that the photographs were actually placed in his hands along with the skull, and he conducted the test and gave opinion that it was that of the skull of Gopi. At this juncture, the contention put forth by the learned Counsel for the appellants that the superimposition test report should not have been relied on by the trial Court has got to be rejected for the simple reason that not even a suggestion was put to P.W.15 that it was not that of the skull of Gopi. 18.All the above put together would clearly indicate that all or any of the contentions put forth by the learned Counsel for the appellants and recorded above, do not carry any merit whatsoever. It is true that the prosecution had no direct evidence to prove the conspiracy part. But this Court is of the view that without a conspiracy between A-1 and A-2, they could not have committed such an offence as the proved facts would clearly indicate their plan to take him to a brandy shop, intoxicate him and commit murder. All would be clinchingly pointing that they have actually committed the crime, and under the circumstances, the trial Court was perfectly correct in coming to the conclusion and has taken a right decision which does not require disturbance in the hands of this Court. The punishments awarded are also reasonable. 19.In the result, this criminal appeal fails, and the same is dismissed confirming the judgment of the trial Court. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. nsv To: 1.The Additional District and Sessions Judge FTC-I, Coimbatore. 2. Do thro the Principal Sessions Judge Coimbatore https://hcservices.ecourts.gov.in/hcservices/ 3. The Inspector of Police B-5, Singanallur Police Station Coimbatore District. 4. The Public Prosecutor High Court, Madras. 5. The Judicial Magistrate No.VII Coimbatore (C.C.16/08) 6. The Commissioner of Police Coimbatore 7. The District Collector Coimbatore 8. The Superintendent Central Prison, Coimbatore 9. The Judicial Magistrate NO.III Coimbatore 10. The Section Officer Criminal Section, High Court, Madras CRL.A.No.665 of 2009 KA (CO) kk 12/3 https://hcservices.ecourts.gov.in/hcservices/