Madras High Court
Sivaraj vs The State Rep. By Inspector Of Police on 12 August, 2009
Bench: P.Murgesen, C.S.Karnan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:12/08/2009 CORAM THE HONOURABLE MR. JUSTICE P.MURGESEN and THE HONOURABLE MR. JUSTICE C.S.KARNAN CRL.A.(MD)No.405 OF 2008 Sivaraj ... Appellant/Accused Vs The State rep. by Inspector of Police, Boothalur Police Station, Crime No.59/2008, Thanjavur. ... Respondent/Complainant Criminal Appeal filed under Section 374 Cr.P.C against the judgment of conviction and sentence passed by the learned I Additional Sessions Judge (Protection of Civil Rights), Thanjavur, dated 21.07.2008 made in S.C.No.243 of 2008. !For Appellant ... Mr.Veera Kathiravan ^For Respondent... Mr.Isaac Manuel Government Advocate (Crl.Side) ***** :JUDGMENT
(Judgment of the Court was passed by P.MURGESEN, J) This Criminal Appeal is directed against the conviction and sentence imposed by the learned I Additional Sessions Judge (Protection of Civil Rights), Thanjavur, dated 21.07.2008, made in S.C.No.243 of 2008, on the appellant/accused.
2.The case of the prosecution is as under:-
P.W.1 is the resident of Ponvilainthanpatti. P.W.2 is his wife. P.W.3 is the sister of P.W.2 and the second wife of the accused. P.W.1 and P.W.2, husband and wife has two sons, namely, Nishanth studying 3rd standard and Sakthimurugan, studying 1st standard in the Primary School at Ponvilainthanpatti. P.W.10 is the Headmaster of the Primary School at Ponvilainthanpatti. The appellant/accused has one daughter and one son through his first wife. He underwent vasectomy. P.W.11-Dr.Venkateswaran is the surgeon in Bharat Heavy Electronics Limited Hospital. He conducted vasectomy operation on the accused on 05.08.1989 and he issued Ex.P.9-Sterlisation Certificate to that effect. P.W.12 and P.W.13 are the officials of BHEL and neighbours of the accused residing in the quarters of BHEL. They were aware of the unhappy life of the accused.
3. Just one month prior to the occurrence, i.e., on 23.12.2006, the accused sent a lawyer notice to P.W.3 who is his second wife, and on 02.07.2007 the accused gave a complaint to the police that P.W.3 must come and live with him. The police also enquired the complaint of the accused. One week prior to the occurrence, the accused went to the house of P.Ws.1 and 2 and requested them to send his wife. At that time quarrel started between the accused and P.W.2- Jeyarani. P.W.2 said to the accused that he is unfit to get a child and that she got two male children like lion cubs and they will look after them. She also requested the accused to settle his house in favour of P.W.3, since P.W.3 is not having any issue. This was not liked by the accused and therefore, he returned back.
4. On 20.03.2008, the two children of P.Ws.1 and 2 went to school. They used to go to school by 9.00 A.M. and they will return back as usual by 4.30 P.M., but on that day, they did not return from the school. P.Ws.1 and 2 enquired about the same and they were informed by P.W.4-Padmanabhan and P.W.5- Kasthuri that the children were taken by their uncle. The parents of the victims searched their children in the house of P.W.1's brother, but they were not able to find them. So, they went to the accused's house and found that it was locked. Thereafter, they contacted the accused through phone, but the same was switched off. Finally, they gave a complaint-Ex.P.1 that their children are missing.
5.On 21.03.2008, the Head Constable Rathinasamy received the complaint given by P.W.1 and registered the same under Petition No.68 of 2008 and placed it before P.W.16-Sub-Inspector of Budalur Police Station. He received the complaint and registered a case in Crime No.59 of 2008, under Section 364 I.P.C. and prepared Ex.P22-printed F.I.R. and sent the same to the Judicial Magistrate. P.W.17, took up the case for investigation. On 22.03.2008 at about 11.00 P.M., he visited the scene of occurrence in the presence of P.W.8-Thangamuthu and his Assistant and prepared Ex.P.3-Observation Mahazar and Ex.P.23-Rough Sketch. He examined P.W.1-Shanmugam, P.W.2-Jeyarani, P.W.4-Padmanabhan, P.W.5-Kasthuri, Angamuthu, Damodaran, Sakthivel, Palanivel, Shanthi, P.W.13-Jeyaraman, P.W.8 V.A.O Thangamuthu and his Assistant and recorded their statements. On 23.03.2008 at about 5.00 A.M. near V.K.N. Company, Thoovakudi, P.W.17 arrested the accused after identification by P.W.1. Thereafter, the accused gave confession statement voluntarily in the presence of P.W.8-Thangamuthu and Charles that he killed the sons of P.W.1, and the same was recorded by P.W.17. Ex.P.2 is the admissible portion of confession statement of the accused. On the basis of Ex.P.2, the complaint which was registered originally under Section 364 IPC was altered into one under Section 302 I.P.C. Ex.P.24 is the Alteration Report sent to the Judicial Magistrate. Based upon the confession statement, the accused took them to Natarajapuram Arivalagan Kulam at 7.30 A.M. and identified the body of Sakthimurugan, the younger child of P.Ws.1 and 2. The Investigation Officer seized the body of Sakthi Murugan and sample water from the lake under Ex.P.7- Mahazar, in the presence of witnesses P.W.8-Thangamuthu and Charles. Then, he prepared Ex.P.5 Observation Mahazar and Ex.P.25 Rough Sketch in the presence of the same witnesses. He conducted inquest over the body of Sakthi Murugan from 9.00 A.M. to 11.00 A.M. and prepared Ex.26-Inquest Report and thereafter, the body was handed over to Head Constable Paramasivam for sending the same to Government Hospital for conducting autopsy. Then, the accused took them to Koothapar Village, Kumaresanpuram Sivanthan Kulam and identified the elder son of P.W.1 viz. Nizanth. P.W.17 seized the body of Nizanth and the sample water from pond under Ex.P.8-Mahazar in the presence of witnesses P.W.9-Muthukumar and Kalaiselvan. He also recovered M.O.2-bloodstained earth and M.O.3-ordinary earth. Then he prepared Ex.P.6-Observation Mahazar and Ex.P.27-Rough Sketch in the presence of the said witnesses. Thereafter, he conducted inquest over the body of Nizanth and prepared Ex.P.28-Inquest Report and handed over the body of Nizanth to the Head Constable for sending the same to the Hospital for conducting autopsy.
6.P.W.15-Doctor conducted autopsy on the bodies of Sakthimurugan and Nizanth on 23.03.2008. He found the following injuries the body of Sakthimurugan:
"1.Dark brown colour, linear abrasions, of varying length at varying distances present on the vertex of the head.
2.Dark brown colour abrasion, on the right side of fact, 4cm x 3cm, and front of both knee, 2 x 1 cm each.
3.Dark brown colour abrasions of varying dimensions at varying distances on both lip and around the nostrils present. Blood clots are found adherent at the gums and not washable. O/D bruising of underlying soft tissues of both lip and nostrils present. Dark red.
4.Bruising of frontal and parietal regions of scalp - Dark red.
5.Sub arachnoid haemorrhage on parietal lobe of cerebrum present."
He found the following injuries on the body of Nishanth:
"1.Dark brown colour, linear abrasions, of varying length, on the vertex of the head, at warying distances present. O/D bruising of frontal, both parietal and right temporal regions of the scalp-Dark red. Bruising of right temporalis muscle-Dark red.
2.Dark brown colour abrasions, of varying dimensions, on both lip and around the nostrils present. O/E blood clots at the gums present and not washable. Linear lacerations on the inner aspect of both lip present. O/D bruising of underlying soft tissues present - Dark red.
3.Dark brown colour abrasion, on the left cheek, 3x2 cm.
4.Sub arachnoid haemorrhage on the right frontal and both parietal lobe of cerebrum present.
The above mentioned wounds are antemortem in nature.
5.Aquatic animal bite marks, on the pinna of both ear, around the eyes, mouth and back of right hand present. O/E The edges are irregular. O/D The base is pale - Postmortem in nature."
7. P.W.17 recovered M.O.4-Yellow coloured banian, M.O.5-Green coloured Trouser, M.O.6-Shirt and M.O.7-Red coloured Trouser from the bodies of the victims and sent those material objects to the Judicial Magistrate along with Form-95. Thereafter, he sent the accused for Judicial Custody on 24.03.2008 at 6.30 P.M. On 24.03.2008, on the basis of confession statement given by the accused, the Investigating Officer examined P.Ws.6 and 7, the barbers of Samayapuram Mariamman Temple, who have tonsured the heads of the victims, and recorded their statements.
8.On 25.03.2008, P.W.17 sent a letter to the Judicial Magistrate for sending the material objects and viscera for chemical examination. P.W.14 is the Head Clerk of Thiruvaiyaru Judicial Magistrate Court. The request of the Investigating Officer was received by the Judicial Magistrate and the material objects were sent to the forensic laboratory for chemical analysis and reports were received. Ex.P.9 is the Sterilisation Certificate, Exs.P.10, 12 and 13 are the Biology Reports, Exs.P.11 and 14 are the Toxic Reports and Ex.P.15 is the Serology Report.
9.On 27.03.2008, the Investigating Officer recorded the statement of P.W.10, the Headmaster of the School where the victims were studying. On 30.03.2008, he examined the neighbours of the accused, i.e., P.W.12- Raja and P.W.13-Jeyaraman and recorded their statements. He also examined P.W.18- Palanivel, Assistant Chief Security Officer of BHEL, and recorded his statement. Ex.A.29-Attendance register of BHEL would show that the accused left the office on 20.03.2008 at 11.38 A.M. and he returned back to the office on 22.03.2008 at 7.16 A.M. After completing the investigation, P.W.17 filed charge sheet as against the accused under Sections 364 and 302 I.P.C.
10. Before the trial Court, P.Ws.1 to 18 were examined and Exs.P.1 to P.29 and M.Os.1 to 7 were marked. All the incriminating pieces of evidence let in by the prosecution witnesses were put to the accused under Section 313(1) of the Code of Criminal Procedure questioning the accused, and the accused denied the same as false. On the side of the accused Ex.D.1 was marked. There was no oral evidence adduced on the side of the accused.
11. On consideration of the evidence on record, the learned I Additional Sessions Judge (PCR), Thanjavur, found the accused guilty under Sections 302, 364 and 201 I.P.C. (each two counts) and sentenced him to undergo life imprisonment in each count under Section 302 I.P.C. and to pay a fine of Rs.25,000/- in each count, in default to undergo Rigorous Imprisonment for 5 years and to undergo Rigorous Imprisonment for 10 years in each count under Section 364 I.P.C. and to pay a fine of Rs.10,000/- in each count, in default to undergo Rigorous Imprisonment for 2 years in each count and to undergo Rigorous Imprisonment for 7 years in each count under Section 201 I.P.C. and to pay a fine of Rs.5,000/- for each count, in default to undergo Rigorous Imprisonment for 2 years in each count.
12. Challenging the judgment of the learned I Additional Sessions Judge (PCR), Thanjavur, the present Criminal Appeal has been filed by the appellant /accused.
13. Now the question that needs to be answered in this appeal is whether the accused/appellant could be held guilty under Sections 302, 364 and 201 I.P.C. (each two counts).
14. P.W.1 is the resident of Ponvilainthanpatti. He is a coolie worker. His wife is P.W.2. P.W.3 is the sister of P.W.2 and second wife of the accused. The accused undergone vasectomy on 05.08.1989 and a certificate Ex.P.9 was given by P.W.11, Dr.Venkateswaran. So, the accused was not in a position to get any issue. This was spoken by P.W.3. Further, the matrimonial life of the accused with P.W.3 was not happy. To prove it, P.W.12 and P.W.13 were examined. P.W.12 is the Deputy Manager in BHEL and P.W.13 is the Manager in BHEL and both of them were neighbours of the accused. Their evidence would show that the matrimonial life of the accused with P.W.3 was not happy and there were frequent quarrels between them. When the accused was questioned under Section 313 of Cr.P.C., he admitted that there were frequent quarrels between them and their matrimonial life was not at all happy. Furthermore, he also sent a notice to the parents of P.W.3 to persuade P.W.3 to live with him.
15. One week before the occurrence, the accused requested P.Ws.1 and 2 to send P.W.3 along with him. P.Ws.1 and 2 did not prepare to accept the demand of the accused. On the other hand, P.W.2 scolded him that he is impotent, and that she has two male children like lion cubs to look after them. P.W.2 also said to the accused that since her sister has no child, the accused should settle his property in her sister's name. The accused was not prepared to accept the demand. Naturally, when a person is scolded that he is impotent, it will go deep into his mind. Therefore, it is clear that the accused was humiliated on that day.
16. Learned counsel for the appellant pointed out that the witnesses have spoken that the accused has stated in a strange manner, that he will look after the lion cubs, and the same was not stated in the statements recorded under Section 161(3) of Cr.P.C. Admittedly, the witnesses have not stated that the accused told in a strange manner that he will look after the lion cubs in the statements recorded under Section 161(3) Cr.P.C., but they deposed like that before the Court. Hence, it is only an exaggeration. However, the evidence of P.Ws.1 to 3 would show that the accused was not happy on the statement of P.W.2 that he will not be able to get a child. Therefore, naturally the accused had grievance against P.W.2.
17. On the fateful day, the children of P.Ws.1 and 2 did not return home. So, they made a search. They were informed by P.Ws.4 and 5 that their children were taken by their uncle. But, they were under the impression that the uncle of the children viz. father's brother had taken away the children. So, they went to the house of the brother of P.W.1, where they did not find their children. Then, they went to the house of the accused and found that the door was locked. So, they tried to contact the accused through cellular phone, but the same was switched off. So, P.W.1 after searching his children, went to the police station and lodged a complaint on the next day. The complaint was received as petition by the Head Constable and it was sent to P.W.16, Abdul Latheef, Sub- Inspector of Police, but he has not taken any steps immediately. It is a case of missing of two children, but the complaint was received as a petition and placed before the Sub-Inspector of Police. The Sub-Inspector took action only on the next day and the criminal law was set in motion vigorously after a long time.
18. Learned Additional Public Prosecutor submitted that the Head Constable was not aware of the law. Ignorance of law is not a plea. It is a very sorry state of affairs that a Head Constable dealing with such cases was having very lethargic attitude. Had he acted immediately, there would have been a chance of saving the two young boys.
19. Learned counsel for the appellant/accused submitted that there is no motive for the accused to murder the two young boys, so, the intention to crime falls to the ground. But, the motive is spoken by P.Ws.1 to 3. Further, the learned counsel argued that the motive and overt act of the accused was not shown in the inquest reports Exs.P.26 and 28. A careful consideration of Exs.P.26 and P.28, would show that the accused had a motive and he committed overt act. So, his submission that motive was not shown in the inquest report is not correct.
20. Learned counsel for the appellant argued that in a case of circumstantial evidence, it must be established without any reasonable doubt. He relied on the decision of the Honourable Apex Court in Baldev Singh v. State of Haryana reported in (2009) 1 MLJ (Crl) 671, and the decision of this Court in Pavunu v. State reported in (2009) 1 MLJ (Crl) 801. He also relied on the decision of the Honourable Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622 wherein it has been held as follows:
"Onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; (3) the circumstances should be of a conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
21. In Baldev Singh v. State of Haryana reported in (2009) 1 MLJ (Crl) 671 (SC) also, the Honourable Apex Court explained about the circumstantial evidence. In (2009) 1 MLJ (Crl) 801, the Division Bench of this Court held that the circumstances when placed to take a decision as to the guilt of the accused, they must be cogent, convincing and must constitute a chain without a snap and pointing to the hypotheses that except the accused no one could have committed the offence.
22. The present case has to be tested in the light of the above decisions. The prosecution relied on the fact that accused was seen with the children by P.Ws.4 and 5 lastly. P.Ws.4 and 5 were known to P.Ws.1 and 2. They stated that after the school time was over, the accused took both the children in a two wheeler. Learned counsel for the appellant argued that P.Ws.4 and 5 did not say about the registration number of the two wheeler before the Investigating Officer, so their evidence cannot be believed. A perusal of their statements under Section 161(3) of Cr.P.C. would show that the witnesses have spoken that a two wheeler bearing registration number TN-45-AF-6557 was driven by the accused. During the chief examination P.W.4 deposed about the model of the two wheeler and its colour. Further, the number of the vehicle driven by the accused is not disputed. So the defence claim is in this respect is not acceptable.
23. Further, P.W.4 said that when he went to the tea shop for drinking tea between 3.00 to 4.00 P.M., the accused came in a TVS-XL vehicle and took away the children from the school. Relying on this, learned counsel for the appellant argued that a person drinking tea in a tea stall could not have seen the accused and the children near the school, because the tea shop is far away from the school. The evidence on record would show that the tea shop is situated near the school. When the school is near the tea shop, there is every possibility of seeing the accused near the school along with the children. Evidence on record would show that P.Ws.4 and 5 came to tea shop at 7.00 P.M. P.W.1 and P.W.2 having searched for their children in a number of places came and enquired P.Ws.4 and 5 and P.Ws.4 and 5 have told them that the accused took away their children from the school. So, the last seen theory is proved. There is no evidence to hold that P.Ws.4 and 5 are speaking falsehood. The defence is unable to shatter the evidence of P.Ws.4 and 5. P.Ws.4 and 5 have no motive to speak a false statement against the accused. So, a careful consideration of the evidence of P.Ws.4 and 5 would show that the accused was last seen along the children. So, the theory of last seen is established in the manner known to law.
24. In this case, the prosecution has examined P.Ws.6 and 7 to establish that they had tonsured the head of the children. At this juncture, learned counsel for the appellant argued that P.Ws.6 and 7 are residents of Maruthur and only the barbers who belong to Kannur and V.Durayur were permitted to tonsure in Samayapuram Mariamman Temple, so P.Ws.6 and 7 might not have been allowed to tonsure in the Samayapuram Mariamman Temple. It is not proved from the competent authority of the temple that only the barbers belonging to Kannur and V.Durayur were allowed to tonsure in Samayapuram Mariamman Temple. Hence that contention cannot be accepted.
25. P.W.6 Marimuthu was examined on 03.06.2008 and he spoke in favour of the prosecution. But, when he was recalled on 04.07.2008, he took somersault and produced a driving licence and deposed that his name is Saravanan S/o. Jeyaraman and he deposed in favour of the prosecution because of the pressure given by the temple authorities on the previous day. Though he claimed his name as Saravanan, he signed only as Marimuthu. This would go to show that he took a different stand and he is speaking falsehood before the Court. So, his evidence is doubtful and it cannot be accepted.
26. P.W.7-Kumar deposed that the accused came with two children and he tonsured the head of one child and the other child was tonsured by Marimuthu. His evidence would show that photograph of the accused was shown to him and he identified the accused. A careful consideration of the evidence on record would show that nothing was elicited from P.W.7 to disbelieve his evidence.
27. Learned counsel for the appellant argued that barbers are doing tonsure work for a number of people, and hence, it is not possible for them to remember each and every person whom they have tonsured. P.W.7's evidence would show that a photograph of the accused was shown to him and he was able to identify the accused. Nothing was elicited from P.W.7 to reject his evidence as weak and unreliable. So, the accused took the children for tonsuring is established.
28. Learned counsel for the accused argued that the body of Sakthimurugan was first seen by P.W.9-Village Administrative Officer, so there cannot be any possibility of the accused taking the Investigating Officer to the scene of occurrence. P.W.9-V.A.O. was informed by his Assistant and he proceeded to the place where the body of Sakthimurugan was there at 6.00 P.M. Thereafter, on the basis of the confession statement given by the accused, he was taken to that place at 7.00 P.M. by the Investigating Officer. There is nothing strange as to the presence of P.W.9 in that area, earlier. So, his presence will not in any way improve the case of the defence. Then, on the confession of the accused, the Investigating Officer took the accused to the pond in which the body of another child was seen. At this stage, learned counsel for the appellant argued that uniforms of the children were not recovered and the books and tiffen carriers were not recovered. It is true that the uniforms, books and tiffin carriers of the children were not recovered. It is clear that the investigation agency has acted in a lethargic manner. This failure of the investigating officer cannot be a ground to reject the case of the prosecution. In this case the bodies of the two children were recovered and the same were sent for postmortem, which would show that the death is not natural.
29. Learned counsel for the appellant argued that the diatom test had failed. Even though the diatom test had failed, it is seen that there were number of injuries on the body of the children. The doctor opined that the death of both children occurred due to injuries and smothering. The children were subjected to some sort of violence before drowning into water. There was a possibility of the children coming across sharp places like rocks in the water and because of that there was possibility of sustaining injuries. So, the failure of diatom test is not a ground to reject the case of prosecution.
30. The children were killed due to vengeance. Further a careful scanning of evidence would show that the accused had motive and only because of the motive, he took away the children from the school, which is evident from the evidence of P.Ws.4 and 5, from whom the last seen theory was established. Further, the accused was not present in his office, and it was spoken by P.W.18, the officer of BHEL. The accused is a welding employee in BHEL. He left the office on 20.03.2008 by 11.38 A.M. Ex.P.29 would show that the accused left the office on 20.03.2008 at 11.38 A.M. and he returned to the office on 22.03.2008 at 7.16 A.M. Employees Attendance Detail would read as follows:
Staff No. Name From Date To Date 2151979 SIVARAJ s 25.02.2008 24.03.2008
PR-Present AB-Absent WO-Weekly off PH-Public Holiday ...
Date Shift In Out In Out In Out In Out Status 14/03/08 WO / WO 15/03/08 GS 07.51 19.30 PR / PR 16/03/08 GS 07.42 19.30 PR / PR 17/03/08 GS 07.54 19.30 PR / PR 18/03/08 GS 07.46 19.30 PR / PR 19/03/08 GS 07.48 19.30 PR / PR 20/03/08 GS 07.45 11.38 AB / AB 21/03/08 WO / WO 22/03/08 GS 07.16 16.00 PR / PR 23/03/08 GS AB / AB 24/03/08 GS AB / AB
31. Further, a perusal of the documents would show that the accused was given gate pass officially to do certain work out of office hours on 20.03.2008 at 11.38 A.M., but the proceedings of the Manager of the concerned office clearly show that though the accused was given pass officially at 11.38 hours to work outside, the accused had not done the other outside works which were allotted to him. In view of his non-performance of the allotted work, the wages for the remaining period has been deducted. This can be seen from the proceedings dated 22.03.2008. So, the accused has to explain why he had not performed the allotted job on that date. It is also a circumstance to prove the guilt of the accused. So, the needle of suspicion is always pointing towards the accused.
32. Learned counsel for the appellant argued that there are lot of defects in the prosecution case, so it will affect the case of the prosecution. He further argued that even though the vehicle was recovered as M.O.1 on the basis of the confession given by the accused, by relying on the evidence of P.W.9, the counsel for the appellant vehemently argued that the recovery was not known to P.W.9. Admittedly, many cycle stands are situated in a vast area in BHEL. P.W.9 stated that he is unable to point out the exact stand in which the vehicle was recovered. Then, he said that if he is taken to the BHEL, he can point out the stand. Naturally, in a vast area, where the vehicles are parked like that in an organisation like BHEL, all the people cannot be allowed to move. But P.W.9's assertion that if he is taken to that area, he can point out the stand, would show that the vehicle was recovered from the stand. So, there is no reason to reject his version.
33. Learned counsel for the appellant further argued that the in-charge of the stand was not examined and there is no evidence to hold as to when the vehicle was parked and when it was taken. It is also the case of the defence that there is a contractor in the cycle stand and there is a register to show when the vehicle was parked and when the vehicle was removed. If really there is a register and the vehicle was not recovered from the cycle stand of BHEL, certainly the accused would have summoned a witness from the BHEL authorities to show the alleged recovery is false and the vehicle was not recovered on the said date. But he did not try to produce any document to this effect. This would also go to show that the recovery is correct.
34. Learned counsel for the appellant also would submit that there are lot of defects in the case of prosecution. As pointed out by the learned counsel for the appellant, the investigating agency has acted without sincerity and in a careless manner. It is a sorry state of affairs. As pointed out in number of cases by the Honourable Supreme Court it is the duty of the Court to remove the grain from the chaff to find out the truth. There was a delay in registering the F.I.R. P.W.1 has filed the complaint promptly on 21.03.2008 at 1.00 P.M. to the Head-Constable of the respondent Police Station and it was treated as a petition and sent to the Sub-Inspector of Police. Later on, Abdul Latheef, Sub- Inspector of Police registered it under Section 364 I.P.C. on 22.03.2008 at 8.30 P.M. and despatched the same to the Court belatedly on 24.03.2008 at 3.15 P.M. This also shows the negligence on the part of the investigation agency. Further, learned counsel submitted that nothing was recovered from the accused's house. It is true that the accused was arrested on 23.03.2008 and remanded after 24 hours, which is an illegal one. But in the meantime, he should have been taken to his house to find anything is there, but the investigation officer has not done so. So, it is clear that the investigation was done without sincerity, but that cannot be taken as a ground to reject the case of the prosecution.
35. P.W.10, the Headmaster of the School in which the victim children were studying, said that he gave the Attendance Register for 20.03.2008 to the investigation officer, but the investigation officer has denied the same. He has not cared to produce the school records to show that the deceased attended the school on that day. But there is clear evidence that the deceased boys were taken by the accused after the school time was over. So, the negligence and the carelessness on the part of the investigation officer will not in any way, affect the prosecution's case.
36. On a careful consideration of the evidence on record, we are of the considered opinion that it is proved beyond reasonable doubt that accused is the only person has committed the offence. We find no reason to interfere with the well reasoned finding of the trial Court. There is no merit in this appeal and accordingly it is dismissed.
37. At this juncture, learned counsel for the appellant prayed that the observation made by the trial Court that the State Government may not extend any of the remission to the accused keeping in view the nature of crime, shall be deleted. Considering the age of the appellant, we are of considered view that the same may be deleted and accordingly, it is deleted.
33. In the result, the Criminal Appeal is dismissed and the observation of the trial Court that the State Government may not extend any of the remission to the accused keeping in view the nature of crime, is deleted.
sj To
1.The I Additional Sessions Judge (Protection of Civil Rights), Thanjavur.
2.The Inspector of Police, Boothalur Police Station, Thanjavur.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.