BAIL SLIP --------- The Appellant in Crl.A.No.836 of 2002/Accused No.1 viz., A.Ramkumar was directed to be released on bail by the order of this Court dated 15.7.2002 and made in Crl.M.P.No.5232/2002 in Crl.A.No.836/2002. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25/7/2006 C O R A M THE HONOURABLE Mr.JUSTICE R.BALASUBRAMANIAN A N D THE HONOURABLE Mr.JUSTICE M.JEYAPAUL Criminal Appeal Nos. 836 of 2002 and 558 of 2004 1. A. Ramkumar ... Appellant in Crl.A.No. 836 of 2002 (Accused No.1) 2. Bhaskaran ... Appellant in Crl.A.No. 558 of 2004 (Accused No.2) Vs The State rep. by The Inspector of Police Karimangalam Police Station Krishnagiri District. Dharmapuri (Cr.No.325/99) ... Respondent in both the Criminal Appeals/Complainant. Criminal Appeals are filed to set aside the judgment passed in S.C.No.66 of 2000 on the file of the II Additional District Sessions Judge-cum-Chief Judicial Magistrate Court, Krishnagiri dated 15/4/2002. For appellants ... Mr.S.Doraisamy in Crl.A.No.836 of 2002 https://hcservices.ecourts.gov.in/hcservices/ Mr.N.Doraisamy for Mr.E.M.K.Yaswant Rao in Crl.A.No.558 of 2004 For respondents ... Mr.M.Ravindran, SC as Legal Aid Counsel to assist the Court. Mr.R.Viduthalai, Advocate General to assist the Court for Mr.N.R.Elango, APP - - - - - C O M M O N J U D G M E N T (Judgment of the Court was delivered by Mr.Justice K.JEYAPAUL). The first accused in Sessions Case No.66 of 2000 on the file of II Additional Sessions Judge-cum-Chief Judicial Magistrate, Krishnagiri has preferred Criminal Appeal No.836 of 2002 and the second accused therein has preferred Criminal Appeal NO.558 of 2004. Both the accused stand convicted for offences under Sections 302, 364 and 201 of I.P.C., and sentenced to undergo life imprisonment for the offence under Section 302 I.P.C. together with a fine of Rs.1,000/- each, carrying a default sentence. For the offence under Section 364 of I.P.C., each one of them stands sentenced to undergo three years rigorous imprisonment together with a fine of Rs.1,000/- carrying a default sentence and for the offence under Section 201 I.P.C., each one of them stands sentenced to undergo one year rigorous imprisonment. The sentences are directed to run concurrently. 2. The charge against the accused is that they conspired on 14/3/1999 to do away with the life of Manoj Kumar and thereby committed an offence under Section 120 B of Indian Penal Code. In the course of some transaction on the very same day, at about 11.00 a.m., they kidnapped a minor boy, aged 10 years and thereby they committed an offence under Section 364 of I.P.C. On the very same day, at about 5.00 p.m., in furtherance of the common intention to cause the death of Manoj Kumar, the first accused having throttled Manoj Kumar, put him in a gunny bag, containing stones and pushed him along with the gunny bag in a well and caused his death and thereby, committed an offence punishable under Section 302 of Indian Penal Code. Both the accused attempted to screen the evidence, after the commission of murder and thereby committed an offence under Section 201 of Indian Penal Code, the charge reads further. https://hcservices.ecourts.gov.in/hcservices/ 3. On the side of prosecution, as many as 26 witnesses were examined, besides marking 33 documents and 8 material objects. 4. The brief text of the prosecution version as found from the evidence adduced on their side is as follows:- Vanithamani, P.W.1 and Munusamy, P.W.7 are the parents of the deceased Manoj Kumar. Angichetti, P.W.2 is the father of the first accused Ramkumar. P.W.2 has got married the own sister of Vanithamani, P.W.1. Therefore, Manoj Kumar - since deceased was the cousin brother of the first accused. 5. Munusamy, P.W.7 is carrying on business in textiles. On 14/3/1999, he had been to Erode, in connection with his business venture. At about 11.00 a.m., on the said day, Manoj Kumar, went out of his house to play in the Elementary School play ground at Periyampatti. As he had not returned to the house till 2.30 p.m. on the said day, P.W.1 informed P.W.2 about the missing of Manoj Kumar. Information also was passed on to P.W.7 by P.W.1. P.W.2 being the husband of the sister of P.W.1, lodged a report Ex.P.1 to Karimangalam Police Station in connection with the missing of Manoj Kumar. On 15/3/1999, P.W.1 received a letter through courier, wherein, her husband had been directed to pay a ransom of Rs. 10 lakhs to retrieve their son. The next day i.e., on 16/3/1999, P.W.2 came along with the first accused to her house with another letter addressed to P.W.7, wherein also a sum of Rs.10 lakhs was demanded for the release of Manoj Kumar. In the second letter, there was a specific instruction to hand over the money to the first accused. Seeing the content of the letter, P.W.1 got afraid and she did not divulge the same to the Police. 6. On 18/3/1999, at about 9.00 a.m., when the Village Administrative Officer of Karimangalam was present along with his assistant at Karimangalam Village Chavadi, the second accused Baskaran, came down to his office and gave a confession to him. In the confession, the second accused has stated that on 14/3/1999, as per the instruction of the first accused, the second accused took Manoj Kumar from the play ground of the School and entrusted him to Ram Kumar, the first accused herein. All the three went by TVS 50 vehicle to Kottumanahalli, where they met Murugan, P.W.4 and sought for a gunny bag and rope and they took tender coconut there. Thereafter, they proceeded to Thirumanahalli dam. Since there was human traffic, they proceeded to Osahalli lake. On the way, they met one Hussain. In a well situate on the south of Osahalli lake, they put two stones inside the gunny bag and having seated Manoj Kumar inside, after retrieving the chain from him, he was pushed into the well. Thereafter, they returned to Karimangalam. On 15/3/1999 at the house of Poovazhagi, at the instruction of the first accused, second accused wrote a letter, demanding a sum of Rs.10 https://hcservices.ecourts.gov.in/hcservices/ lakhs for the release of Manoj Kumar. Again on 16/3/1999, another letter was written, demanding the very same amount, but with an instruction to hand over the said amount to the first accused Ram Kumar. As the first accused did not turn up till 2.00 p.m., the second accused got frightened and came down to the Village Administrative Officer and unfolded his heart to him. 7. The Village Administrative Officer, P.W.6, having recorded the confession statement Ex.P.7 from the second accused, prepared a report Ex.P.8. P.W.2 had already submitted a complaint Exs.P.1 to P.25 at about 8.30 a.m. on 15/5/1999. On the basis of such complaint, a case in Crime No.325 of 1999 was registered classifying the case as missing of a boy. Sivanesan, P.W.25, prepared printed First Information Report Ex.P.31. When P.W.25 was in search of the boy, who was missing, on the basis of the complaint given by P.W.2. The Village Administrative Officer, P.W.6 came to the Police Station with the confession statement Ex.P.7 and the special report Ex.P.8 to P.W.25 along with the second accused. Based on such a report, the case in Crime No.325 of 1999 was altered into one under Section 364, 302 and 379 of Indian Penal Code. P.W.25, prepared express report Ex.P.19 and despatched the same to the Judicial Magistrate. 8. The Inspector of Police P.W.26, having received the copy of First Information Report from P.W.25, examined the second accused. The second accused gave voluntary statement in the presence of P.W.6. The accused informed him that he would show the well where the boy was pushed into and the place where the golden chain was burked. 9. P.W.26 went along with P.W.6 to the well at about 12.30 p.m., on 18/3/1999. He prepared a rough sketch P.W.32, reflecting the scene of occurrence. He also prepared Observation Mahazar Ex.P.10 in the presence of P.W.6. He arranged to retrieve the gunny bag found floating in the well. In the gunny bag, the dead body of Manoj Kumar was found and the same was identified by the witnesses P.Ws.1 to 5 in the presence of Panchayathdars. P.W.26 held inquest between 1.30 p.m. to 3.30 p.m. and prepared inquest report Ex.P.33. 10. Murugan, P.W.4 is the Schoolmate of the first and second accused. Of course, he was treated as hostile and they were permitted to be cross-examined by the prosecution. But he has spoken to the fact that he spotted the first and second accused along with a boy on 14/3/1999. 11. Murugan, P.W.9 and Selvam P.W.10 have also deposed before the Court that they spotted the accused along with a boy in the evening on 14/3/1999. Kaliappan, P.W.11 had turned hostile to the version of prosecution. Hussain, P.W.12 though turned hostile, https://hcservices.ecourts.gov.in/hcservices/ has spoken to the fact that he also saw the accused along with a boy. Balaji, P.W.13 and Ramesh, P.W.14 have also deposed that they saw the accused along with a boy. Mariappan, P.W.19 is working under Shanmugam, P.W.18 in a courier service. They have spoken to the service of the letters on Vanithamani, P.W.1. Poovazhagi, P.W.20 and Sakthivel, P.W.21 have not spoken anything in favour of the prosecution. 12. Doctor Baby Saroja, P.W.3, having received a requisition from the Inspector of Police, P.W.28 through the Constable Devendiran, P.W.15 commenced post mortem examination on the dead body of Manoj Kumar at 4.15 p.m. on 18/3/1999. She found the following features on the dead body of Manoj Kumar. "INTERNAL EXAMINATION:- Abdomen: Stomach walls pale. Contained partly digested rice (rice with small pieces of beet root) 100 gms. Intestine: Pale Liver: 1200 gms. - Pale Spleen: 100 gms. - Normal. Urinary Bladder: Empty Kidney: 100 gms each – Normal External genitalia bloated. Thorax:- Heart:- 250 gms. - Chambers empty Right Lung: 300 gms. Left Lung: 275 gms – normal Partly decomposed. No fracture of ribs. Hyoid bone – preserved Skull: Vault normal. Coverings of brain intact. Brain liquified flowing out when the membranes were (nc). Vertebral Column intact. Pelvis – No fracture. https://hcservices.ecourts.gov.in/hcservices/ Stomach and its contents, part of intestines and its contents, Part of liver and one kidney, one lung, Hyoid bone and a sample of preservative were preserved for chemical pathological examination." 13. The post-mortem Doctor, in her post mortem certificate, Ex.P.3 has opined the deceased appeared to have died about 72 to 96 hours prior to the post mortem due to Asphyxia on account of throttling. The hyoid bone of Manoj Kumar was sent for examination, at the request of the Inspector of Police. The expert Doctor Vallinayagam, P.W.24 has spoken to the fact that there was Ante mortem fracture present in the hyoid bone in the bone case report Ex.P.4. 14. The apparels found on the dead body were recovered by the post mortem constable, P.W.15 and the same were entrusted to P.W.26 for investigation. P.W.26 recovered the letters received by P.W.7 through courier service. P.W.16 also seized the gunny bag, M.O.5, stones two in number, M.O.6 series and rope, M.O.7 under relevant seizure mahazar in the presence of the aforesaid witnesses. 15. P.W.26 obtained the sample writings from the second accused Baskaran and thereafter, the second accused was remanded to judicial custody. The M.Os were also sent to the learned II Additional Distict Sessions Judge-cum-Chief Judicial Magistrate, Krishnagiri. 16. The next day i.e. on 19/3/199, at about 6.00 a.m., P.W.26 arrested the second accused and recovered TVS 50 vehicle, M.O.4 from him under relevant seizure mahazar. The second accused gave confession statement voluntarily and the same was recorded by P.W.26. 17. P.W.26 made a requisition to the learned Chief Judicial Magistrate, Krishnagiri to engage a Judicial Magistrate, for the purpose of recording the confession statement of the second accused Baskaran and Murugan, P.W.9. The learned Judicial Magistrate, Sri Arumugam, P.W.5 has recorded the confession of the second accused and also the statement of P.W.9. It is found that the learned Judicial Magistrate has failed to observe the mandatory requirements under Section 164 (4) of Code of Criminal Procedure, when he conducted the proceedings under the aforesaid provision of law. 18. Handwriting expert Murali Krishna, P.W.8, having analysed the sample handwriting of the second accused with the hand https://hcservices.ecourts.gov.in/hcservices/ writing found in the disputed letters, has come to the conclusion that the letters have been written only by the second accused. 19. P.W.26 having completed the investigation, laid final report as against the accused under Sections 120 B, 364 and 302 read with Section 34 and Section 201 of I.P.C. 20. The incriminating portions found in the testimony of the prosecution witnesses were put in the form of questionnaire under Section 313 of Code of Criminal Procedure. The accused have denied each and every incriminating portions culled out and put to them. They have stated that a false case was foisted on them. 21. On the side of the defence, the father of the second accused was examined as D.W.1. The birth certificate showing his Date of Birth as 7/5/1981 was marked as Ex.P.1. P.W.2, the father of the first accused was recalled and through him, the birth certificate, Ex.D.2 showing the Date of Birth of the first accused as 25/6/1981 was marked. 22. The trial Judge having adverted to the extra judicial confession given by the second accused, the last seen theory spoken to by P.Ws.9, 10 and 12 to 14, the recovery of the chain at the instance of the second accused, the experts opinion given by Murali Krishna, P.W.8 and the opinion expressed in the hyoid bone test and the available medical evidence, has come to the conclusion that the first and second accused having kidnapped the minor boy, aged 10 years, in furtherance of their common intention to do away with his life, caused his death and committed murder and thereafter, they attempted to screen the evidence and thereby, they committed offences punishable under Sections 364, 302 and 302 read with Section 34 and 201 of I.P.C. 23. The learned counsel appearing for the first accused would submit that extra judicial confession alleged to have been given by the second accused is not at all reliable, in as much as varied version is found in the extra judicial confession from that of judicial confession given before the learned Judicial Magistrate, P.W.5. The judicial confession recorded by the Judicial Magistrate, P.W.5 cannot also be safely relied upon in as much as the learned Judicial Magistrate has not chosen to adhere to the mandatory requirements found under Section 164 (4) of the Code of Criminal Procedure, 1973. There is nothing on record to show that food was supplied by the accused to the missing boy, Manoj Kumar, just prior to his death. Referring to the post mortem certificate, the learned counsel appearing for the first accused would submit that, partially digested rice and carrot particles were found in the stomach of Manoj Kumar. He would further submit that a material link in the chain https://hcservices.ecourts.gov.in/hcservices/ spoken to by the prosecution witnesses is missing. When the prosecution has come out with a case that the boy was playing with his mates at the play ground just before kidnapping, the prosecution has miserably failed to examine any one of his playmates to establish that the second accused took away the boy, when he was playing in the play ground of Elementary school. The evidence of P.W.13 cannot be safely relied upon in as much as he being the relative of the missing boy, had failed to divulge the fact either to P.W.1 or to P.W.7 that their son was found lastly in the company of the accused, more especially when the Police were in search of the missing boy for about two to three days. Therefore, the benefit of doubt will have to be conferred on the first accused, he would submit. 24. The learned counsel appearing for the second accused would submit that the second accused would not have ventured to go to the house of P.W.1, if at all he had played any role in the commission of murder. It is his submission that, without the sanction of the Judicial Magistrate, the Investigating Official has chosen to obtain sample writing of the second accused and sent for experts' opinion and that therefore, the opinion expressed by the handwriting expert Murali Krishna, P.W.8 loses its credibility. The Judicial confession given by the second accused would go to show that he had not played any role in committing any of the offences alleged against him. Therefore, the learned counsel appearing for the first and second accused would submit that they are entitled to acquittal. 25. The learned Additional Public Prosecutor would submit that though there is no ocular evidence to the occurrence, the prosecution has successfully come out with cogent chain of circumstances to speak to the role of not only the first accused but also the second accused. The learned trial Judge has rightly relied upon the extra judicial confession and recorded the judgment of conviction as against the accused and that therefore, there is no warrant for interference with the well considered judgment passed by the trial Judge. 26. The father of the first accused has got married the own sister of Vanithamani, P.W.1. Therefore, the missing boy, Manoj Kumar is found to be the cousin brother of the first accused. Murugan, P.W.9 has categorically spoken to the fact that both the accused came with a boy aged about 10, at about 12.00 noon on 14/3/1999 to his house. He has stated that he supplied tender coconut to all of them. So it is found that, at about 12.00 noon on 14/3/1999, the missing boy was found in the company of the first and second accused. 27. Selvam, P.W.10 has spotted the accused, coming along with a boy in a TVS 50 vehicle. He was crossing the bridge at about 3.00 p.m., on 14/3/1999, when he spotted all of them in a TVS 50 https://hcservices.ecourts.gov.in/hcservices/ vehicle. He identified both the accused in the Court. Of course, he has partly turned hostile to the version of the prosecution. Despite that, it is found from the testimony of P.W.10 that, at about 3.00 p.m., on 14/3/1993, both the accused were found with a boy. Hussain, P.W.12 has also witnessed both the accused coming in a TVS 50 vehicle along with a small boy at the very same time when he was proceeding to Melpattagapatti by bicycle. 28. Balaji, P.W.13 and Ramesh P.W.14 have also met the accused at 3.00 p.m., on the said day along with Manoj Kumar – since deceased. 29. From the testimony of P.Ws.9, 10 and 12 to 14, it is quite clear that the missing boy, Manoj Kumar was found in the company of the accused prior to his death. There is no reason to disbelieve the testimony of those witnesses. They are all independent witnesses, it is found and therefore, relying upon their testimony, we find that the missing boy was very well in the company of the accused till about 3.00 p.m. on 14/3/1999. 30. The Village Administrative Officer Selvaraj, P.W.6 has recorded the extra judicial confession of the second accused. The second accused had waited for the arrival of the first accused, who has gone to his Village to come with money. Since he has not turned up, he had no other go, but to approach the Village Administrative Officer, P.W.6, to confess the whole crime committed by him and the first accused. P.W.6 has categorically deposed before the trial Court that, at about 9.00 a.m. on 18/3/1999, the second accused came to his office at Karimangalam and gave a statement that, it was he who kidnapped the missing boy, Manoj Kumar from the premises of Elementary School, at the behest of the first accused and thereafter, having taken the boy in a TVS 50, Manoj Kumar was throttled by the first accused and thereafter, he was put in a gunny bag along with two stones and dropped the same inside the well. 31. It is found that only at the instance of the second accused, based on the confession given by him, the dead body of Manoj Kumar was fished out from a well by the investigating officer. It was he who showed the well, where Manoj Kumar was dropped in a gunny bag. It is further found that only based on the confession made by him that the chain worn by Manoj Kumar was recovered from him. The whole recovery had been made based on the confession made by the second accused. We do not find any artificiality in recording the confession statement of the second accused by the Village Administrative Officer. There is no reason to discard the evidence of Village Administrative Officer in as much as the recovery also has been made successfully, based on such confession given by the second accused to the Village Administrative Officer, P.W.6. https://hcservices.ecourts.gov.in/hcservices/ 32. The Inspector of Police, P.W.26, has chosen to obtain the sample handwriting from the second accused, as he has stated in the confession statement that he was the author of those two letters sent to the address of Munusamy, P.W.7 the father of Manoj Kumar. Muralikrishna, P.W.8, the handwriting expert has given an opinion in his report that the sample handwriting of the second accused did tally with the handwriting found in the disputed letters alleged to have been recovered from Munusamy, P.W.7. There is no explanation from the second accused for the letters scribed by him in a threatening posture to P.W.7, demanding a sum of Rs.10 lakhs for the release of his son Manoj Kumar. 33. As per Section 30 of the Indian Evidence Act, 1872, if the accused are tried jointly for the very same offence, the confession made by one of such persons affecting himself and the other co-accused can be relied upon, if it is proved. The extra judicial confession given by the second accused to P.W.6, speaks of the material involvement of the first accused in this case. Such an extra judicial confession speaking about the involvement of the first accused will have to be seen in the light of the last seen theory projected by the prosecution through P.Ws.9, 10 and 12 to 14. 34. On 16/3/1999, when the last letter was sent to P.W.7 with a specific instruction to pay a ransom of Rs.10 lakhs to the first accused in order to retrieve the missing boy, the first accused along with his father had gone to the house of Vanithamani, P.W.1 to show the letter. The act of the first accused will have to be seen in the back ground of the extra judicial confession given by the second accused to the effect that he was waiting for the arrival of the first accused with the money demanded in the letter addressed to P.W.7. 35. Of course A.2 has not spoken anything about the food supplied to the victim, just before the occurrence. In all probability going by the post mortem report, the boy should have been supplied with some food just prior to the occurrence. For the reasons best known, such a fact which had been within the exclusive knowledge of the first and second accused had not been divulged by them. Unless such a revelation flows either from the first accused or from the second accused, the investigating agency would definitely be in the dark. Quite probably, the accused just before the occurrence would have supplied rice with carrot and that was the reason why some particles were found in the stomach of the deceased Manoj Kumar. We find that it is not a material link in the chain of circumstances which would affect the case of prosecution. Firstly, we find that such a link was not relied upon by the prosecuting agency. Secondly, as we have already held that it was not so material link to affect the case of prosecution. https://hcservices.ecourts.gov.in/hcservices/ 36. Of course, the investigating agency should have examined some playmates of the victim boy