IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21-11-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRL.A.Nos.715 and 759 of 2004 N.Hariharan @ Hari .. Appellant in CA 715/2004 1.Samikannu @ Sami 2.Marimuthu @ Mari 3.Meganathan @ Megha 4.Senthilkumar @ Senthil 5.S.Babu 6.E.Premkumar @ Prem 7.P.G.Ramachandran @ Manoharan .. Appellants in CA 759/2004 vs State by: The Deputy Superintendent of Police CB CID, Metro Wing, Chennai 2 K4 Anna Nagar Police Station Cr.No.1440/2001 .. Respondent in both appeals Criminal appeals preferred under Sec.374 of Cr.P.C. against th judgment of the Additional District and Sessions Judge cum Fast Trac Judge-I, Chennai, made in S.C.No.206 of 2003 dated 19.4.2004. For Appellants : Mr.G.Ravikumar for A-2 in CA 715/2004 Mr.T.K.Sampath for M/s. T. K. Sampath Associates for A-4 to A-7 and A-14 in CA 759/2004 Mr.R.Sankarasubbu for A-3 in CA 759/2004 Mr. M. Rajasekhar for Mr.S.Manohar for A-11 in CA 759/2004 Mr.P.Kumaresan Additional Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals namely C.A.Nos.71 and 759 of 2004, the former filed by A-2 and the latter by A-3, A-4 A-5, A-6, A-7, A-11 and A-14, who along with A-1, A-8, A-10, A-12 an A-13 stood charged, tried, found guilty and awarded the punishment a follows: ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-3 120-B IPC Guilty Life sentence with a fine of Rs.50000/- A-3, A-6 and A-8 344, 365, 363 IPC A-3 and A-6 guilty A-8 not guilty 2 years RI with a fine of Rs.5000/- i/d 6 months RI u/s 344 5 years RI with a fine of Rs.10000/- i/d 2 years RI u/s 365 5 years RI with a fine of Rs.7000/- i/d 1 year RI u/s 363 A-1 to A-14 364 IPC A-1 to A-7, A- 11 and A-14 guilty A-8, A-9,A-10, A-12 & A-13 not guilty 10 years RI with a fine of Rs.10000/- i/d 2 years RI A-1 to A-14 302 IPC A-1 to A-7, A- 11 and A-14 guilty A-8, A-9,A-10, A-12 and A-13 not guilty Life sentence with a fine of Rs.50000/- each A-4, A-5 379 IPC Guilty 2 years RI 2.Necessary facts for the disposal of these appeals could b stated as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) P.W.1 is a resident of Santhi Colony, Anna Nagar, Madras. Th deceased Jayakumar is the brother of P.W.1. P.W.2 is the mother o P.W.1 and the deceased. P.W.3 is the wife of the deceased. In th year 1999, they were all residing in the said place. P.W.2 owned house in Door No.223, Block 'N', Anna Nagar, Madras. Prior to th marriage of P.W.1, they were all residing in the said house. In th year 1999, the said house was mortgaged by P.W.1, the decease Jayakumar, P.W.2 and her husband Dhakshinamoorthy with South Eas Benefit Fund, Mandaiveli, Madras, as security for the loan of Rs.1 lakhs availed by them. The said sum of Rs.10 lakhs was taken by bot P.W.1 and the deceased each Rs.5 lakhs. It was agreed that Jayakuma should enjoy the property, and after redemption of the mortgage, h should own the property. But, Jayakumar did not make the instalment towards the mortgage properly. Hence the property was brought i public auction in the year 2000, and an auction notice was issued Whenever notices were issued either P.W.1, or Jayakumar pai Rs.25000/- on every instances and stopped the sale. Then all th family members decided to sell the property and to pay the mortgag debt. But, Jayakumar was not amenable for that. He undertook that h would redeem the mortgage however as per the original understanding. (b) In August 2001, the public auction sale notice was agai issued by the Benefit Fund. P.W.2 requested P.W.1 to ask Jayakumar t make necessary arrangements. Whenever P.W.1 informed about th mortgage to Jayakumar, he did not show interest; but, he was promisin that he would however redeem the mortgage. When P.W.1 informed t P.W.2 about the situation, P.W.2 replied that Jayakumar was wel acquainted to A-1 Senthilkumar, who was the nephew of Mayor M.K.Stali and also the grandson of DMK President; that Jayakumar has lent lakh of rupees to A-1; that A-2 has assured Senthilkumar to take necessar steps to wipe off the interest on the mortgage loan, and hence ther might not be any difficulty for Jayakumar in closing the mortgag debt. Till the time of sale, the mortgage was not redeemed. Th property was purchased by one Raja in public auction. When Jayakuma came to know about the same, he left the house and was staying in hi friend's house at Perambur. P.W.3 Hemalatha, the wife of Jayakumar informed the family members that only after the mortgage problem i solved, she would come back. Since the auction purchaser did not mak the entire sale price, the sale was cancelled. Jayakumar informe P.W.3 that A-1 had phoned over to him that he was keeping the mone ready, and thus he left his friend's house from Perambur. Thereafter for a few days, the whereabouts of Jayakumar was not known. (c) P.Ws.1 and 2 verified from P.W.3 at Bangalore through phon whether Jayakumar was at Bangalore. She replied that Jayakumar phone to her on the previous day, and hence P.Ws.1 and 2 need not worry. I view of that reply, P.Ws.1 and 2 kept quiet for some time. Since the could not get any information about Jayakumar, on 14/15.10.2001, P.W. gave a report to K4 Anna Nagar Police Station, which is marked a Ex.P1. On the strength of Ex.P1, the complaint, P.W.46, the Su Inspector of Police, attached to K4 Anna Nagar Police Station registered a case in Crime No.1440 of 2001 for man missing. Th printed FIR, Ex.P98, was despatched to the Court. https://hcservices.ecourts.gov.in/hcservices/ (d) A-1 Senthilkumar, a native of Mayiladuthurai and a graduat in business administration (MBA), committed an offence of abducting person for ransom, and a case was registered under Sections 341, 342 363 and 323 IPC by Mayiladuthurai Police Station in Crime No.33 o 1999. That case was pending in C.C.No.1798 of 2000 before th Judicial Magistrate No.I, Mayiladuthurai. (e) In the month of April 2000, P.W.12, Mohan Babu, developed contact with A-1. On one day, A-1 handed over Rs.1 lakh for th purchase of clothes. The said incident raised an image of A-1 wit P.W.12. A-1 also misrepresented to P.Ws.6, 7, 12, 22 and 24 an others that he was going to marry the daughter of the former Mayor o Chennai Corporation and also pretended as if he had close acquaintanc with the son of the Mayor. On the instructions of A-1, P.W.1 received Rs.80,000/- from the deceased Jayakumar at Anna Nagar, an the same was handed over to A-1 at Perambur Railway Station durin which P.W.7 was also present. The said amount was given by th deceased for the redemption of the mortgage. P.W.6 Manickam pai Rs.10000/- to A-1 for securing an employment for him. A-1 pretende as if he was a close relative of the Mayor. The deceased Jayakumar wa introduced to A-1 by P.W.6. (f) P.W.7 wanted to get a transfer to Chennai for his wife wh was working as a teacher at the native place. On th misrepresentation of A-1 to get such a transfer order, P.W.7 pai different amounts on number of occasions. But, A-1 did not d anything in that regard. (g) P.W.22 Selvarangan paid Rs.1 lakh to A-2 and A-14 i.e. Rs.10000/- by cash and Rs.90000/- through two demand drafts each fo Rs.45000/- in the name of A-2 for getting an employment for him. Th said amount was received by A-2, and the same was utilised during th relevant period by A-1 and A-2 for the commission of the offence During the said period, P.W.24 had close acquaintance with A-1. Th jewels of P.W.24's wife were stolen, and a case was registered by th concerned police in that connection. A-1 asked him to pay Rs.20000/ for securing the jewels, but P.W.24 refused. In turn, A-1 asked hi to talk like Udayanidhi, the son of the former Mayor of Chennai Accordingly, whenever it was required, A-1 used to call P.W.24 to com and prepare note containing the required conversation. Then A-1 use to make the call and made P.W.24 to converse the same in th telephone. (h) On receipt of the auction sale notice, the deceased Jayakuma left the house with disturbed mind and also doubted the assuranc given by A-1 that he would help him in the redemption of the mortgage Hence he visited the house of the former Mayor and enquired about A- with his personal assistant and came to know that A-1 had n connection with the former Mayor and all his claims were false. Bein annoyed with the conduct of A-1, Jayakumar informed the same t P.W.12. Both the deceased and P.W.12 went to A-2 Hari @ Hariharan an quarreled with A-1. Both asked A-1 either to get back the house unde the mortgage or to return the moneys which he got. A-1 instructed A- https://hcservices.ecourts.gov.in/hcservices/ to go to his mother-in-law's house. Accordingly, A-2 left the place The deceased informed A-1 that he was not going to get back th mortgaged house, and hence he had no option than to prefer a complain to the Commissioner of Police, Chennai. The behaviour of the decease provoked A-1, and he took a decision to eliminate Jayakumar. Hence A 1 entered into a conspiracy with A-2 and A-3 in that regard. (i) On the directions of A-1 and A-2, A-3 arranged his associate to murder Jayakumar. Pursuant to the conspiracy, A-1 informed th deceased to come and meet him at Tiruvanmiyur to collect the money On that day, the deceased was staying in P.W.12's house. Hence th deceased Jayakumar informed the same to P.W.12. Both the decease Jayakumar and P.W.12 left the house and reached Tiruvanmiyur at 4.0 P.M. and they were waiting for A-1's call till 8.00 P.M. At abou 8.00 P.M. Jayakumar contacted A-1's cell, and A-1 replied that h could go to Aavichi School at Vadapalani. Accordingly, both Jayakuma and P.W.12 reached Aavichi School, Vadapalani. On the instructions o A-1, A-3 and A-6 engaged a house at Virugambakkam and also engaged tw Ambassador Cars bearing Registration Nos.TN04 D 8379 belonging t P.W.18 Selvam, and TN09 H 3535 belonging to P.W.25 Sebastian. A-4, A 5, A-6, A-7, A-9, A-10 and A-12 used the Car bearing registratio No.TN09 H 3535 and reached Virugambakkam house and were waiting fo the arrival of A-3, while A-3 and A-11 to A-13 took the othe ambassador car and reached Aavichi School at Vadapalani. From there A-3 and other accused took Jayakumar to Virugambakkam house. P.W.1 also followed the vehicle. After reaching the said house a Virugambakkam, the deceased Jayakumar and P.W.12 were detained in th said house from 23.8.2001 to 4.9.2001. When Jayakumar and P.W.12 wer in the custody of A-3 and his associates from 23.8.2001 a Virugambakkam house, A-3 seized the complaint written by Jayakuma dated 24.8.2001 which was addressed to the Commissioner of Police Chennai City, and the same was handed over to A-1. (j) While the deceased Jayakumar and P.W.12 were detained in th house at Virugambakkam from 23.8.2001 to 4.9.2001, from the possessio of the deceased Jayakumar, the gold ring, M.O.7 and the cell phone M.O.20, were stolen by A-4 Marimuthu and A-5 Meganathan respectively. (k) P.W.21 Soundararajan was the caretaker of Virugambakka house. He insisted them to vacate the house. Accordingly, A-3 an others vacated the house on 4.9.2001. On request by A-3, A-8 Gob arranged his grandmother's house at Athipakkam near Vandavasi. A- contacted P.W.19 Manohar Singh and engaged a TATA Sumo bearin registration No.TN02 E 8110 driven by P.W.16 Krishna Sagar. O 4.9.2001, P.W.16 along with A-8 and A-3 while coming to Virugambakka house, visited Vijaya Health Centre, Vadapalani, where A-3 met A-1, A 2 and A-14. After receiving instructions from A-1 and A-2, A-3 lef for Virugambakkam in the TATA Sumo. After reaching Virugambakka house, A-3 and his associates namely A-4, A-5, A-7, A-8, A-9 and A-11 boarded the deceased Jayakumar and P.W.12 Mohan Babu in the TATA Sum and have taken them to Athipakkam Village near Vandavasi. A- Senthilkumar took the motorcycle of P.W.12 and reached the said house A-3 was waiting at Vandavasi for A-1 and others. Accordingly, A-1, A 2 and A-14 reached Vandavasi in the white ambassador car, M.O.15, an https://hcservices.ecourts.gov.in/hcservices/ A-5, A-8 and A-11 also reached there in the TATA Sumo car, M.O.13 along with them. After reaching Athipakkam Village, A-8 introduced hi relative and the tenant P.W.31 Selvaraj to A-3 and requested P.W.31 t help A-3 for comfortable stay and food. (l) On 11.9.2001 on the request of A-3, P.W.31 introduced P.W.2 Vadivelu, watchman/room boy of Chakkaravarthy Lodge, and P.W.3 requested P.W.23 to give two rooms for the stay of A-1, A-2 and A-14 Between 9.9.2001 and 11.9.2001, A-1 and A-2 were staying in the hous of P.W.7 Christopher. P.W.23 Vadivel, the Night Watchman and in charge during the night hours of the said lodge, made entry in th register, Ex.P33, and entered the address of A-8 J.Gopi and obtaine his signature. P.W.23 allotted two rooms for A-1, A-2 and A-14. (m) On 12.9.2001, A-1, A-2 and A-14 visited the grandmother' house of A-8 at Athipakkam in the TATA Sumo driven by P.W.16 where th deceased Jayakumar and P.W.12 were detained. After reaching the sai house, when P.W.12 was beaten, he fell down on the feet of A-1 t apologize him and requested A-1 to release him. In turn A-1 asked hi to write a letter and read the same for recording purpose. Then, a the instance of A-1, A-3 forcibly made the deceased Jayakumar an P.W.12 Mohan Babu to write letters and the same were sent to thei houses respectively. On 12.9.2001, A-1, A-2 along with the othe accused A-3, A-4, A-5, A-6, A-7, A-8, A-11 and A-14 forced Jayakuma to write a letter, and the same was recorded in the tape recorder Similarly, P.W.12 had written Ex.P13 letter and the same was als recorded. In the said letters, A-1 made them to write that Mohan Bab and Jayakumar threatened A-1 for money and also there was a mentio about the names of Udayanithi, Paruthi Illamvazhuthi and M.K.Balan. (n) During that time, P.W.31 Selvaraj helped A-3 and others fo purchasing food items and liquor. He had seen P.W.12 and the decease Jayakumar staying in the house of the grandmother of A-8. In th course of abduction and during the detention by the accused, th deceased Jayakumar was not ready to get apology from A-1 though P.W.1 requested for apology. Enraged over the conduct of the decease Jayakumar, A-1, A-2, A-3 and A-14 decided to eliminate the decease Jayakumar on the hills of Kodaikanal with the help of A-4, A-5, A-6 A-7, A-8 and A-11. (o) Accordingly, on 12.9.2001, A-1, A-2 and A-14 vacated th rooms at Chakravarthy Lodge at about 6.00 P.M. and left for Kodaikana in the Ambassador Car, while A-3, A-4, A-5, A-6, A-7, A-8 and A-1 along with P.W.12 and the deceased Jayakumar travelled in the TAT Sumo Car. (p) The accused stayed in the Hotel at Kodaikanal along with th deceased Jayakumar and P.W.12, as stated by the witnesses. The TAT Sumo Car was driven by A-3 to the silent valley at Kodaikanal. Afte reaching the spot, A-3, A-4, A-5 and A-11 took pattakathi, Aruval Pithuvakathi and Madakkukathi from the vehicle and A-6 and A-7 too wooden logs. A-1 tied the eyes of Jayakumar telling that he is goin to take him to his uncle for getting apology. After moving a fe yards and after receiving signal from A-1, A-2 had beaten Jayakuma https://hcservices.ecourts.gov.in/hcservices/ with uruttu kattai, and A-3 took the pattakathi and cut him twice fro the backside of Jayakumar on the right backside portion of the head At that time, A-1 pasted a plaster on the mouth of Jayakumar. A- and A-7 gave blow on the stomach of Jayakumar with wooden logs. Whe Jayakumar fell down, A-11, A-4 and A-5 also stabbed him with thei knives. A-1 instructed A-3 to find out whether he is alive or not Accordingly, A-3 checked and declared him dead. At that time, A-6 an A-7 removed their shirts and tied the hands of the dead body o Jayakumar. Then, A-3, A-4, A-5, A-6, A-7 and A-11 lifted the body an threw away into the depth of silent valley. After committing th murder, A-3, A-4, A-5, A-6, A-7 and A-11 have changed thei bloodstained shirts with newly purchased T Shirts. (q) Subsequently after hearing the version of P.W.12, P.W. lodged a further complaint before the same police station, and P.W.47 the Inspector of Police, altered the case into Sec.363 of IPC and too up investigation. Ex.P100 is the FIR in that regard. (r) On 28.3.2002, P.W.47, the Investigator obtained a copy of th confession of A-1 from the CB CID Office which was given by him whil he was arrested in connection with MK Balan's murder case in E Foreshore Estate Police Station Crime No.986 of 2001, and altered th case into Sections 120(B), 364, 365 and 302 of IPC at 3.00 P.M. o that day. The special report after alteration is Ex.P101. (s) A-1 and A-2 were arrested on 27.5.2002. A-3 surrendere before the Court on 1.4.2002. A-4 and A-5 surrendered on 19.4.2002 A-6 was arrested on 23.6.2002. A-7 was arrested on 7.7.2002. A-8 wa arrested on 30.6.2002. A-9 and A-10 were arrested on 3.7.2002. A-1 was arrested on 16.11.2002. A-12 was arrested on 23.11.2002. A-1 was arrested on 3.2.2003. A-14 was arrested on 26.2.2003. (t) P.W.47 filed an affidavit before the V MM for taking custod of A-3 on 2.4.2002 and the duration of the police custody was fro 3.4.2002 to 12.4.2002. On 6.4.2002, A-3 was taken to Kodaikanal an reached on 7.4.2002. A-3's confession was recorded at the Bus Stan at 1.30 P.M. on the same day in front of Joseph and Inbaraj, and th admissible part is marked as Ex.P4. Then P.W.47 prepared a observation mahazar which is marked as Ex.P45 in front of the sai witnesses on 7.4.2002, and a rough sketch which is marked as Ex.P101 On 9.4.2002, after the place was identified by A-3, P.W.5 had actuall gone into the silent valley and took the three knives which ar produced and marked as M.Os.8 to 10 and also the dead body. A-3 als identified the places where Jayakumar and P.W.12 were confined i Hotel Sangeeth. Then, P.W.47, the Investigating Officer, conducte inquest on the dead body of the deceased Jayakumar in the presence o witnesses and panchayatdars and prepared an inquest report, Ex.P7. (u) Then on the request of the Investigator P.W.47, th postmortem was conducted on the dead body of Jayakumar in th Government Hospital, Kodaikanal. The postmortem was conducted b P.W.40, the Medical Officer, attached to the Rajaji Governmen Hospital, Madurai. P.W.40, after conducting autopsy, has issued postmortem certificate, Ex.P59, and also final opinion under Ex.P6 https://hcservices.ecourts.gov.in/hcservices/ that the deceased died of head injury 6 to 9 months prior t postmortem. He also gave opinion that there were three anti-morte injuries, and they were cumulatively capable of causing death. (v) On the request of P.W.47, the Investigator, the skull of th deceased Jayakumar was sent to the Anthropology Department, Tamil Nad Forensic Sciences Laboratory, Madras, for conducting superimpositio test. P.W.41 compared the skull of Jayakumar with the photographs an opined that the photographs of Jayakumar tallied with the skull sent Further, the DNA profile test was conducted by P.W.43 Tmt.Vijaya an Exs.P73 to P95 were marked through her. After taking the bloo samples of P.W.1, P.W.2 and Dhakshinamoorthy, the father of th deceased, DNA profile were developed, and the same tallied with th DNA profile of the bone marrow taken from the skull which was seize from the body recovered from the silent valley. P.W.43 in he analysis has found that the DNA profile was tallying with each other. (w) The Investigator examined P.W.8, Gurusamy, who gave statemen to the effect that A-1, A-2, A-8 and A-14 stayed in Astoria Hotel o 13.9.2001 and 14.9.2001. Exs.P10 and P11 are the GRC (Gues Registration Card) and the bill book receipt respectively. Th Investigating Officer also examined and recorded the statements o P.W.14, Sakthivel, who was working as Receptionist of Hotel Sangeeth Kodaikanal, and P.W.15 Raja, who was working as Room Boy at Hote Sangeeth, Kodaikanal. P.W.14 gave the statement to the effect that o 13.9.2001 at 0800 hours, the accused persons arrived at the said hote in TATA Sumo Car and also in white ambassador car, and A-3 Samikann and A-6 Senthilkumar booked three rooms and made entry in the registe of Hotel Sangeeth. The said register was recovered and marked a Ex.P14. On enquiry by A-3 about a better hotel, P.W.14 informed tha Hotel Astoria was a better hotel for staying of the persons who are A 1, A-2, A-8 and A-14. P.W.14 has also given statement that all th accused who stayed in Hotel Sangeeth vacated the room on 15.9.2001 a 0840 hours. (x) P.W.47 who altered the complaint as per the alteration repor under Ex.P100, examined P.Ws.1, 2, 3, 6, 7, 11, 12, 13 and also othe witnesses and recorded their statements. On 27.5.2002, A-1 and A- were taken to police custody till 3.6.2002. Both the accused wer interrogated and confessional statements were recorded. A-4 and A- were taken to police custody, and during interrogation, they gav confessional statements. On their confession A-7 was arrested. O the confession of A-7, M.O.20, cell phone, M.O.21 T.Shirt, and M.O. gold ring, were recovered under a cover of mahazar. A-6's confessio Ex.P47 was recorded, and an observation mahazar, Ex.P29, and a roug sketch, Ex.P108, in respect of Virugambakkam house were prepared, an M.O.24, T.Shirt, was recovered under a cover of mahazar. That apart Exs.P24 to Exs.P28, the letters despatched by A-6 to the residence o the deceased and P.W.12, were recovered. A-8 Gopi's confessiona statement was recorded in the presence of witnesses, and the same i Ex.P43, pursuant to which, the TATA Sumo Car M.O.13 was recovere under Ex.P44, mahazar. That apart, an Ambassador Car, M.O.15 belonging to P.W.17, was also recovered under a cover of mahazar Exs.P15 to P18, P45 and P46 the documents, were seized. A-9 and A-1 gave confessional statements voluntarily which were recorded. On th https://hcservices.ecourts.gov.in/hcservices/ confession of A-6, Ex.P40, T.Shirt M.O.22, and a route map, M.O.23 were recovered. A-9 Balan was taken to police custody, during whic he gave a confessional statement which was recorded. The admissibl part is Ex.P111, pursuant to which the ambassador car, M.O.17, and th trip sheet, M.O.17, were recovered under a cover of mahazar. On th basis of the confession of A-11 Premkumar, marked as Ex.P50, M.O.26 knife, was recovered under a cover of mahazar. Later he gave judicial confession before P.W.44, the XIV Metropolitan Magistrate Egmore, which was recorded under Sec.164 of Cr.P.C. The same i marked as Ex.P96. A-13 was taken to police custody, and at that time he volunteered to give a confessional statement which was recorded The confessional statement voluntarily given by A-14 was recorded, an the admissible part is marked as Ex.P54. Pursuant to the same M.O.18, the tape recorder, and the adopter, M.O.19, were recovere under a cover of mahazar. Also M.O.27, the document register, wa recovered. (y) On requisition, the identification parade was conducted b the XXI Metropolitan Magistrate, P.W.35. During the parade, P.W.1 identified A-6, A-7, A-8, A-9 and A-10. P.W.16 identified A-6, A-7 A-8 and A-9. P.W.32 identified A-1, A-2, A-3, A-6, A-7 and A-8 P.W.38, the VI Metropolitan Magistrate, on request conducte identification parade during which P.Ws.8, 9 and 10 identified A-1, A 2 and A-8, while P.Ws.15 and 25 identified A-3 and A-6. P.W.39, th IX Metropolitan Magistrate, conducted identification parade, in whic P.W.12 identified A-1, A-2, A-3 and A-5, while P.W.16 identified A-1 A-2, A-3, A-4 and A-5. P.W.45, the VIII Metropolitan Magistrate conducted identification parade in which P.Ws.8, 10, 12