Madras High Court
Sivaganam vs State Represented By on 3 August, 2012
Author: S.Rajeswaran
Bench: S.Rajeswaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03/08/2012
CORAM
THE HONOURABLE MR.JUSTICE S.RAJESWARAN
AND
THE HONOURABLE MR.JUSTICE M.VIJAYARAGHAVAN
Crl.A(MD)No.184 of 2009
and
Crl.A(MD)No.439 of 2010
and
Crl.A(MD)No.342 of 2011
Sivaganam .. Appellant in
Crl.A(MD)No.184/2009
/Accused No.3
M.Kumar
.. Appellant in
Crl.A(MD)No.439/2010
/Accused No.1
Santhi
.. Appellant in
Crl.A(MD)No.342/2011/
Accused No.2
Vs
State represented by
The Inspector of Police,
Rajapalayam South P.S.,
Crime No.268 of 2006,
Virudhunagar District.
.. Respondent in all Crl.As
PRAYER
These criminal appeals have been preferred under Section 374(2)
Cr.P.C. against the judgment and conviction passed by the learned Principal
Sessions Judge, Virudhunagar District at Srivilliputhur, in S.C.No.190 of 2007,
dated 29.06.2009.
!For Appellant in
Crl.A(MD)No.184/2009
.. Mr.G.Marimuthu
For Appellant in
Crl.A(MD)No.439/2010 .. Mr.S.Mohandoss
For Appellant in
Crl.A(MD)No.342/2011 .. Mr.R.Jayaraman
^For Respondent .. Mr.A.Ramar
Addl. Public Prosecutor
:COMMON JUDGMENT
(The judgment of the court was made by M.VIJAYARAGHAVAN, J.) These three appeals have been filed questioning the legality of the conviction and sentence awarded by the learned Principal Sessions Judge, Virudhunagar District at Srivilliputhur in S.C.No.190 of 2007, dated 29.06.2009, individually by A-3, A-1 and A-2 respectively.
2. The appellant in Crl.A(MD)No.184 of 2009/accused No.3 was convicted for the offence under Section 201 I.P.C and sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.500/-, in default to undergo six months rigorous imprisonment and the appellant in Crl.A(MD)No.439 of 2010/accused No.1 and the appellant in Crl.A(MD)No.342 of 2011/accused No.2, were convicted for the offence under Section 302 r/w 34 and 201 I.P.C and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for one year for the offence under Section 302 I.P.C and sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs.500/-, in default to undergo six months rigorous imprisonment and both sentences are ordered to run concurrently.
3. The brief case of the prosecution is as follows:
(i) P.W.1-Muthusamy, Village Administrative Officer, Puthupalayam Village along with P.W.7- Muthuvel, Village Assistant, on information on 29.05.2006, daytime at 12.00 o' clock, went to the Well of Kanthasamy Raja opposite to Balaji cone factory at Rajapalayam-Sankarankovil road and noticed the jute bag floating on the well ejecting the head of a dead-body and further noticed the plastic bucket with bloodstained dhoti and jacket on the southern side of the well and thereafter, lodged a complaint Ex.P1 with the Rajapalayam South Police Station. P.W.22-Subburaj, the Sub-Inspector of Police on 29.05.2006 at 14.00 hours after receipt of complaint from P.W.1 - Muthusamy registered F.I.R - Ex.P32 in crime No.268 of 2006 under Section 302 I.P.C and placed the case bundle before the Inspector of Police. P.W.27 - Venugopal, the Inspector of Police after informing the dog squad and forensic expert, went to the spot at 15.00 hours and prepared observation mahazar - Ex.P2 in the presence of P.W.1 and P.W.7 and also drew rough sketch Ex.P43 and with the help of municipal sanitary employee P.W.13 - Murugan lifted the jute bag containing the dead-body and in the presence of witnesses and panchayatars conducted inquest and prepared inquest report - Ex.P44 and sent the dead-body with the request-
Ex.P23 to conduct post-mortem to Rajapalayam Government Hospital through the Head-Constable P.W.21 - Jeyapandi and thereafter, seized under mahazar - Ex.P3, the material objects i.e., bloodstained shirt - M.O.1, nighty - M.O.2, bedsheet- M.O.3, full hand shirt - M.O.27, two ropes - M.O.12, jacket - M.O.4, Saree three pieces - M.O.13 series, samll jute bag - M.O.5, cut and removed big jute bag - M.O.6, ammi stone - M.O.7 and waste clothes - M.O.8 series, in the presence of witnesses and thereafter the Inspector of Police, seized one plastic bucket found fifteen feet away south-east from the Well, behind the thorn bushes and also seized the towel - M.O.28, Kerchief-M.O.29, bloodstained jacket - M.O.30, broken bangles - M.O.10 under athatchi Ex.P4, in the presence of same witnesses and sent the material objects under Form No.95, to Judicial Magistrate Court.
(ii) P.W.5- Balasubramaniam, brother of the deceased Thalaimalaipandi, P.W.6-Rukmani, wife of P.W.5 and P.W.8-Parameswaran neighbour to the deceased, knew about the frequent visit of the first accused Kumar to the house of the deceased and illicit intimacy with A2-Santi and P.W.5 also informed the same to the deceased. P.W.6 also knew about the wordy quarrel in view of such conduct in between the deceased as well as A-2. P.Ws.5 and 6 on 26.05.2006 night at 8.00 o' clock witnessed the visit of the first accused to the house of the deceased Thalaimalaipandi, especially on the next day i.e., on 27.05.2006, Saturday night at about 11.00 to 12.00 o' clock, P.W.6 noticed one cycle with jute hag in a big carrier. P.W.5 on the same day noticed two cycles, one big and one small and also noticed the first accused Kumar and the second accused Shanti as well as one another person and the said Kumar was moving the cycle with jute bag luggage and others followed him and thereafter, the house of A-2, was locked for 2 to 3 days and the same was noticed by P.Ws.5 and 6 and thereafter, they could not see the deceased Thalaimalaipandi.
(iii) P.W.15-Dr.Ponnusamy, Senior Assistant Surgeon, Rajapalayam Government Hospital on 29.05.2006, conducted post-mortem on the unidentifiable dead-body of a male and noted the following injuries and conditions:
"A male body lies flat with left upper limb and left lower limb flexed;Right upper limb and right lower limb extended. Body swollen, blisters all over the body. Foul odour present. Eyes bulged out-softened. Exudation from mouth and nose present. Maggots moving over the back of the chest. Loosening of scalp hairs present with only a few hairs attached at the nuchal area. Both hands skin peeled off. Eyes open. Nose intact. Mouth open, Tongue protruded out. Teeth absent in the upper jaw-lower jaw 2/4 only six teeth present. Scrotum and penis swollen. No external injury.
Abdomen: Distended. On opening gas escapes. Stomach empty. Liver, spleen, kidny intact, c/s softened and pale. Intestines distended with gas.
Chest: Ribs intact, plasma intact, lungs-intact, softened c/s pale; Heart - chambers empty intact, c/s pale Hyoid bone intact.
Skull: skin (NC) blister present. On opening the skin putrified liquid brain matter mixed with blood oozes out.
Injury:
(1) T shaped crack fracture in the left temporal bone horizontal 10 cm length vertically 5 cm length.
(2) T shaped crack fracture in the right temporal bone horizontal 8 cm length vertically 5 cm length. Durameter torn on both temporal sides. Brain was liquified.
No poison detected. P.M.No.1 y 93/2006 F.M. Hyoid bone intact."
and issued post-mortem certificate Ex.P22 with the opinion that the death was due to haemorrhage and shock due to the injuries 1 and 2.
(iv) P.W.10-Ramalingam, Booking Clerk of Saravana Lodge at Tiruchendur on 28.05.2006 at 9.40 hours, allotted Room No.8 to the present accused Nos.1 and 2, said to have told as husband and wife along with two children stating the first accused's name as Pandian and after staying over the night, left the lodge on 29.05.2006 morning at 8.30 hours, Page No. 37 of the Register is Ex.P20. On 29.05.2006, the second accused Santhi along with her two children came to Selvamarimuthu - P.W.11's house at Madurai Sulaiman, who is related to A-2 and on enquiry, A-2 told that he came in search of her husband and also stayed over night and left the house on 30.05.2006 morning at 11.00 o' clock.
(v) P.W.2-Velusamy, leader of the community residing at Rajapalayam Ganapathiyarpuram on 31.05.2006, morning at 9.00 to 10.00 hours, when he was at home, the present accused Santi along with a lady came and informed him that she had murdered her husband Thalaimalaipandi after throwing "Ammi Stone" and she further stated that she had the feared of police and police also searching her and according to her dictation grand-daughter of P.W.2 namely Chandra-P.W.3 recorded the statement of her. In the said statement-Ex.P13, P.W.2, P.W.3 and Santi affixed their signatures and produced the same to the police.
(vi) On 31.05.2006, P.W.27-the Investigation Officer after receipt of Ex.P13, arrested and examined the second accused Santi in the presence of P.W.1 one Muthusamy, Village Administrative Officer and P.W.9 - Jeganathan, Village Assistant on the same day at 1.00 o' clock and the second accused gave voluntary confession and based on the admissible portion of the voluntary confession - Ex.P6, recovered from the house of accused Shanti bloodstained floor-M.O.14, ordinary floor-M.O.15, bloodstained hair, bloodstained towel - M.O.16, bloodstained petticoat rope - M.O.17, nighty - M.O18 and beer bottle - M.O.19, under athatchi Ex.P7 and thereafter on identification of the accused Kumar by the accused Santi, P.W.27 arrested the first accused Kumar at Sundarapandiapuram opposite to Nataraj primary school and on examination, he gave voluntary confession and on the basis of the admissible portion of confession Ex.P14, recovered the cell-phone - M.O.21 under athatchi - Ex.P16 and also recovered the Hercules cycle-M.O.20 under athatchi Ex.P15 and thereafter on the same day at 22.00 hours, at Ampalapuli bazaar on identification made by the first accused Kumar, arrested the third accused Sivagnanam and on examination, the accused Sivagnanam gave voluntary confession and based on the admissible portion of the confession Ex.P17, recovered ladies cycle - M.O.11 from his house under athatchi-Ex.P18 and thereafter, after visiting the well in which the dead- body was thrown as identified by the accused and thereafter returned back to the police station along with the three accused and the material objects seized.
(vii) P.W.24 - Ganapathy, when he was working as Tahsildar Rajapalayam on 02.06.2006 after receipt of requisition Ex.P37(photocopy) from the Inspector of Police to exhume the body of Thalaimalaipandi gave requisition - Ex.P38(photocopy) to the medical officer and on 05.06.2006 in the presence of medical officer and Inspector of Police, with the help of P.W.13-Murugan, the buried dead-body was exhumed and three bones from the right side thigh were cut and taken and thereafter, buried the dead-body in the same place.
(viii) P.W.12, Ramasubbu, Supervisor of Sri Kantha Spinning Mill, knew that the first accused Kumar during the month of May, 2006 worked in the same mill as a labourer from 12.05.2006 to 14.05.2006, 20.05.2006 to 22.05.2006 and on 29.05.2006 and 30.05.2006 and the Attendance Register is Ex.P21. P.W.16- Elangovan, Expert from the Forensic Department, after examining the internal organ of the dead-body gave a viscera report-Ex.P24, stating that 'no poisonous substance' and P.W.17-Dr.Kamalatchi Krishnamoorthy, after analysing the material objects sent for test including the hair, gave a chemical analysis report-Ex.P25 and hair examination report-Ex.P26 and P.W.18 Tmt.Nalini Natarajan after analysing the bangles, gave a report-Ex.P27. P.W.19, Dhanaseelan, Finger Print Expert, after comparison of finger prints found in the beer bottle as evidenced from photograph-Ex.P28, with Ex.P29(Photograph of finger print of the accused Kumar), gave a report Ex.P30. P.W.25, Vanaja, the Forensic Expert working at Madras Forensic office, took the blood from the deceased Thalaimani Pandian's mother P.Muthammal and after subjecting the blood as well as the bone for D.N.A test, gave a report Ex.P40. P.W.26 - Mrs. Nirmala Rajkumar, Deputy Director working at Madras Forensic Laboratory, examined the skull of a male body with photo found in the group photo and after conducting superimposition test, gave Ex.P42-Report, along with M.O.26.
(ix) P.W.27 - Inspector of Police, the Investigation Officer after examining the witnesses and recorded their statements and after completing the investigation, filed final report as against the Kumar, Shanti and Sivagnanam under Sections 302, 201, 120(B) and 34 I.P.C
4. During trial, in order to prove the charge against the accused, on the side of the prosecution, 27 witnesses were examined and 50 documents were marked besides M.Os.1 to 30.
5. When the accused were questioned about the incriminating evidences adduced against them under Section 313(1)(b) Cr.P.C, the same were denied. Though the accused intended to examine witnesses, later they did not chose to examine any witnesses.
6. After full-fledged trial, the learned learned Principal Sessions Judge, Virudhunagar District at Srivilliputhur, convicted the appellants 2 & 3/accused Nos.1 & 2 under Sections 302 r/w 34 and 201 I.P.C., and convicted the first appellant/accused No.3 under Section 201 I.P.C., and awarded sentences as referred to above.
7.Aggrieved over the same, the appellants/accused Nos.1 to 3, individually preferred these appeal before this Court.
8. This Court heard the submissions of the respective learned counsel appearing for the appellants/accused Nos.1 to 3 in the respective appeals and the learned Additional Public Prosecutor appearing for the respondent/State.
9. The point arises for consideration in this appeal is, "Whether the conviction and Sentence under Sections 302 r/w 34 and 201 I.P.C(A-1 & A-2) and under Section 201 I.P.C(A-3) awarded by the trial court, are sustainable in law?"
10. The case of the prosecution is mainly rests on the circumstantial evidences and hence burden is heavily on the prosecution to prove the case through cogent and convincing chain of evidences without any break. It is the case of the prosecution that A-1 Kumar had illicit intimacy with A2 Santi, who is the wife of the deceased Thalaimalaipandi and since the deceased was objected to, all the three accused conspired together to eliminate Thalaimalaipandi and thereby A-1 and A-2 on the fateful day i.e., on 26.05.2006 during midnight murdered Thalaimalaipandi at A-2's residence and in order to disappear the evidences, threw the dead-body in a Well and for the said offences alleged to have been committed, distinct and separate charges were framed as against A-1 to A-3 under Sections 120(B) and 201 I.P.C and against A-1 and A-2 under section 302 r/w 34 I.P.C and during trial before the learned Principal Sessions Judge, Virudhunagar District, A-1 to A-3 were acquitted from the charge under Section 120(B) I.P.C and as against the findings given, there is no appeal and the conviction and sentence awarded were questioned by all the three accused before this Court.
11. Before the trial Court to prove the last seen theory, one Balasubramaniam-P.W.5, the brother of the deceased Thalaimalaipandi as well as P.W.5's wife Rukmani-P.W.6 were examined. There is evidence on record through P.W.5-Balasubramaniam that two years before, one day during the fifth month, on Friday night at 11.00 o' clock, the deceased Thalaimalaipandi as well as the first and second accused were chatting in front of the house and moreover, there is also evidence that on the next day i.e., on Saturday night at 12.00 o' clock in two bicycles, one with jute bag luggage, the first accused Kumar and the second accused Santi, were moving along with another person. Moreover, there is also evidence through P.W.5 that one of the small cycle noticed by this witness also identified and marked as M.O.11(ladies cycle with name Santi). No doubt, the learned counsel for the appellants/accused pointed out the admitted evidence of this witness in the cross-examination that this witness did not question the act of the first accused Kumar with his deceased brother since they were living happily and submitted that this portion of admitted evidence, falsify the total case of the prosecution that A-1 and A-2 had ill-will with the deceased because of his disliking about the alleged illicit intimacy in between A-1 and A-2. The above single piece of admitted evidence of P.W.5, the brother of the deceased, shall not falsify the cogent, convincing and corroborative evidence of P.W.5, as well as his wife P.W.6 Rukmani and P.w.8-Parameswaran, the neighbourhood residing to the house of the deceased Thalaimalaipandi about the frequent visit of A-1 to the house of A-2 and also the locked premises in the absence of the deceased Thalaimalaipandi.
12. There is also evidence through P.W.6-Rukmani, the wife of P.W.5 to corroborate and strengthen the evidence of last scene theory that on the fateful day night at 8.00 o' clock the first accused came to the house of the deceased Thalaimalaipandi and furthermore, the important evidence of witnessing the cycle on 27.05.2006 night at 11.00 to 12.00 o' clock with jute bag in a big carrier. The above important two witnesses, who have spoken about the last seen theory were subjected to lengthy cross-examination individually by all the three accused through their counsel, but nothing brought on record to disbelieve the cogent, convincing evidence of P.W.5 and 6 about the last seen theory of the accused persons with the companion of the deceased Thalaimalaipandi.
13. Investigation started on 29.05.2012 based on the Ex.P1-Complaint made by P.W.1, the Village Administrative Officer Muthusamy after noticing the dead- body floating in the well of Kandasamy Raja, Rajapalayam - Sankarankovil road. There is also evidence through P.W.1 and P.W.7-Muthuvelu, Village Assistant working under P.W.1-Muthusamy about witnessing of the dead-body in a jute bag and the Ex.P1-complaint made to the Sub-Inspector of Police - P.W.22, Rajapalayam South police Station namely Subburaj and there is also evidence that P.W.22 after receipt of Ex.P1 complaint, registered F.I.R-Ex.P32 in Crime No.268 of 2008 under Section 302 I.P.C.
14. The learned Additional Public Prosecutor submitted that there is evidence through P.W.6 -Rukmani, wife of P.W.5 that the residence of A-2 Santi was locked in between 27.05.2006 and 31.05.2006 and such evidence also strengthen and corroborated by the evidence of P.W.10 -the Booking Clerk of Saravana Hotel namely Ramalingam, who has rightly identified the first and second accused before the Court about their stay on 28.05.2006 at Tiruchendur lodge and checked out on 29.05.2006 morning at 8.30 hours along with two children and such oral evidence also supported through the lodge Register as well as the evidence of P.W.11 Selvamarimuthu about the visit of the second accused to Madurai along with her children on 29.05.2006 and left the house on 30.05.2006 morning at 11.00 o' clock.
15. A careful perusal of the evidence of P.W.10 reveals that as rightly spoken by P.W.10 with reference to Ex.P22 that Room No.8 was booked in the name of Pandian of Rajapalayam, as checked in on 28.05.2006 morning 9.40 a.m., and checked out on the next day i.e., on 29.05.2006 morning at 8.30 a.m. As rightly pointed out by the learned Additional Public Prosecutor, the above strong evidence along with the recorded evidence of Ex.P20, proved the disappearance of A-1 and A-2 especially A-1 along with her two children from her permanent abode to a far away place i.e., Tiruchendur as well as to Madurai.
16. It is the case of the prosecution that on 31.05.2006, the second accused Santi was produced before the Inspector of Police, Rajapalayam South Police Station by one Veluswamy along with the statement of the accused recorded by him and thereafter, the Inspector arrested and further investigated the case. According to P.W.27, the Inspector of Police-Venugopal, he took the investigation in this case on 29.05.2006 at 14.30 hours and went to the occurrence place and prepared observation mahazar in the presence of P.W.1- Muthusamy, P.W.7-Muthuvel and lifted the dead-body in a jute bag from the Well with the help of a sanitary worker of Rajapalayam Municipality and also conducted inquest on the dead-body of a male and prepared inquest report Ex.P44 and thereafter, sent the dead-body with the requisition Ex.P23 to conduct post- mortem and also seized the material objects found in the jute bag the bloodstained coffee colour striped full hand shirt - M.O.1, yellow colour nighty
- M.O.2, bedsheet - M.O.3, white colour full-hand shirt M.O.27, two ropes - M.O.12, red colour jacket-M.O.4, green colour saree(three pieces) - M.O.13 series, small jute bag-M.O.5, cut and removed jute bag - M.O.6, 'ammi stone' - M.O.7 and waste cut clothes-M.O.8 series under athatchi Ex.P3 and also seized the material objects found in the plastic bucket, fifteen feet south-east of the Well namely yellow towel - M.O.28, bloodstained kerchief - M.O.29, bloodstained red-colour jacket - M.O.30, plastic bucket- M.O.9, and broken glass bangle one piece - M.O.10 under athatchi Ex.P4.
17. There is also evidence through P.W.27-Investigation Officer that on 31.05.2006 at 12.30 hours, he arrested the present second accused Santi produced by Witness Velusamy along with the statement said to have been given by the accused Ex.P13 and on examination of the accused in the presence of witnesses Muthusamy P.W.1 and Jeganathan-P.W.9, the present accused Santi gave voluntary confession to identify the places and on the basis of the admissible portion of the confession statement Ex.P6 at 15.00 hours, the accused identified her house and thereafter, he prepared the observation mahazar-Ex.P5 and also drew rough sketch-Ex.P45 and at 16.30 hours, he seized the bloodstained earth - M.O.14, ordinary earth M.O.15, bloodstained hair, bloodstained cloth pieces-M.O.16, bloodstained petticoat rope - M.O.17, nighty M.O.18 and beer bottle M.O.19 under athatchi Ex.P7 and thereafter on the same day at 19.00 hours, he arrested the present first accused Kumar on identification of the second accused Santi in front of Nataraj Primary School and on examination, the first accused gave voluntary confession and the first accused also had stated to identify the places and on the basis of the admissible portion of the confession-Ex.P14, seized the cell-phone - M.O.21 under athatchi-Ex.P.16 and also one Hercules cycle - M.O.20 under athatchi-Ex.P15 and thereafter at 22.00 hours on identification made by the first and second accused Santi and Kumar, he arrested the third accused Sivagnanam at Ambalapuli bazaar Rajapalayam and on examination, the third accused gave voluntary confession and on the basis of admissible portion of the voluntary confession-Ex.P17 seized M.O.11-ladies cycle from the house of A-3 under athatchi-Ex.P18. After visiting the places identified by all the three accused P.W.27 returned back to police station along with the material objects seized. The above evidence of the Investigation Officer, is rightly corroborated by the valid evidence adduced by P.W.9- Jeganathan Village Assistant especially for the voluntary confession given by A- 1 to A-3 and the material objects seized from the houses of A2-Santi, A1-Kumar, A-3-Sivagnanam especially ladies cycle-M.O.11 from the house of A-3 and cycle- M.O.20 from the house of A-1 under athatchi. Further, absolutely there is no evidence on record to disbelieve the above cogent, convincing corroborative evidence adduced by P.W.9 and P.W.27-Investigation Officer and thereby proved the respective material objects seized under athatchi and more specifically ladies cycle of A2-M.O.11 duly identified by P.W.5 Balasubramaniam. Eventhough another attested witness P.W.1 Muthuswamy-Village Administrative Officer was examined to prove the complaint made to the first Investigation Officer i.e., the Sub-Inspector of Police P.W.22 and for the material objects seized from the Well as well as nearby place to the Well under athatchi and the voluntary confession statement given by A-2 Santi and the material objects seized from her house under athatchi, since this witness did not fully support the case of the prosecution, this witness was treated as hostile and cross-examined. Even cross-examination effected, nothing brought on record to discord the above first part of his evidence with regard to Ex.P1-complaint made to the police, material objects seized from the Well and nearby place under athatchi as well as material objects seized from A-2's house under athatchi on the voluntary confession given by A-2.
18. Above all as pointed out above, there is convincing, corroborative and cogent evidence through P.W.9 - Jeganathan, Village Assistant to that of the evidence of Investigation Officer P.W.27 Venugopal, for the arrest of all the accused as well as material objects on the basis of the admissible portion of the confession under athatchi. Moreover, there is also evidence through P.W.17 Dr.Kamalatchi Krishnamoorthy, Assistant Director of Madras Forensic Laboratory for chemical examination of the material objects seized from the Well tallied with the material objects seized from the house of A-2, in which Item No.5 tallied with Item No.22, Item No.10 silk cloth pieces tallied with Item No.21, Item No.20 hair tallied with sample hair and through her the reports are marked as Ex.P25 and Ex.P26 respectively. Thus, the above expert evidence establishes a link to the accused with the material objects seized especially from the residence of A-2.
19. The learned counsel for the appellant pointed out the report Ex.P40 and disputed the relationship of P.Muthammal with that of the Thalaimalaipandi and the said Muthammal said to have been alive has not been examined before the trial Court and hence doubt arises.
20. In this regard, there is also valid corroborative evidence through P.W.24-Ganapathy, Tahsildar and the Investigation Officer P.W.27-Venugopal about the exhumation of the dead-body with the help of Sweeper P.W.13-Murugan on 02.06.2006 and removal of the thigh bone by the doctor and subjected the same for D.N.A test with that of the deceased mother Muthammal. Further P.W.25-Tmt. Vanaja, Assistant Director Madras Forensic Laboratory also deposed that and after took blood from the Muthammal admitted mother of the deceased and after taking photograph of her also conducted D.N.A test and gave D.N.A report - Ex.P40 stating that the bone pieces is belonged to a male and the bone is belonging to the biological son of Mrs.P.Muthammal.
21. As pointed out above, there is evidence through P.W.25 that D.N.A test was conducted from the blood taken from the admitted mother of the deceased Muthammal, who was called to Madras Forensic Laboratory to prove that factual position apart from the evidence of P.W.25, the photo taken at the Forensic Science Laboratory of the admitted Mother Muthammal is also pasted in Ex.P40 report duly attested by P.W.25. There is also evidence through the Investigation Officer that he has sent the deceased Thalaimalaipandi photograph and skull for forensic test with requisition Ex.P.49. P.W.26-Mrs.Nirmala, Additional Director of Forensic Laboratory, Chennai also deposed that on 08.06.2006 when she was working in the same Department as Additional Director, gave a marked photograph of a male as item No.3 and the skull as item No.2 and after due examination, gave a report-Ex.P42 with opinion that skull could have belonged to a male individual seen in the photograph. Moreover, as pointed out above, the superimposition test conducted by P.W.26-Additional Director of Forensic Science Laboratory, namely Tmt.Nirmala Rajkumar, with a photograph of admitted mother taken from the group photo sent by the police is also tallied with skull is also proved through the superimposition report with the opinion, which is marked as Ex.P42. Such a due process of test effected by the Experts with regard to D.N.A test as well as superimposition test, tallied with the deceased Thalaimalaipandi, the above submissions made by the learned counsel for the appellant, shall not have any merit and substance and at any event, non- examination of said Muthammal shall not falsify the case of the prosecution and hence the above submission is rejected.
22. A careful perusal of the above evidence of an Expert clinchingly proved that skull of the dead-body floated on the well is nothing but a body of a male Thalaimalipandi.
23. There is also medical evidence through Dr.P.W.15 Ponnusamy, who conducted post-mortem on 29.05.2006 at the request of the Inspector of Police- Ex.P23 and also issued post-mortem certificate by incorporating the two head injuries found in the body, with opinion that the death would have occurred due to hemorrhage and shock due to injury Nos.1 and 2 and the said post-mortem certificate is also marked as Ex.p22. There is also evidence through this expert doctor that the injuries found on the head are possible due to throw of 'Ammi Stone' M.O.7.
24. It is the case of the prosecution that A-1 had illicit intimacy with A-2, who is none other than the wife of the deceased Thalaimalaipandi and since the deceased was objecting such illegal intimacy, A-1 and A-2 committed murder and all the accused in order to destroy the evidence threw the deady-body along with the ammi stone in a jute bag and other material objects into the well. The motive, aspect is very well spoken by the brother of the deceased Balasubramaniam P.W.5 as well as the wife of P.W.5 i.e., P.W6-Rukmani, which is also well corroborated through the evidence of P.W.8-Parameswaran, who is residing opposite to the house of the deceased. Thus, there is also valid corroborative evidence and thereby motive is proved by the prosecution.
25. The learned Additional Public Prosecutor submitted that there is unshakable evidence of P.W.5 that the 'Ammi Stone' found outside the house of the deceased Thalaimalaipandi, was missing was known to this witness through Paramasivan's wife Vijayalakshmi and the said 'ammi stone, which is marked before the trial Court as M.O.7 was recovered under athatchi along with dead- body floated in the Well, which is very well spoken and proved through the mahazar witnesses and moreover the material objects i.e., clothes found and recovered near the Well also tallied with the cloth recovered from the house of A-2 and that too also proved through valid evidence and thereby established the link to the chain of evidence in connecting the accused with the crime and more particularly, the undisturbed evidence of opinion given by post-mortem doctor P.W.15 with regard to the injury sustained on the head of the deceased with weapon of offence 'ammi stone' M.O.7, clinchingly proved the case of the prosecution.
26. In the light of the findings we have arrived at above, with regard to the last seen theory as well as recovery of material objects on the voluntary confession given by A-1, A-2 and A-3 as well as expert opinion after due examination under D.N.A test as well as superimposition test candidly, proved the chain of evidences, without any break. In this aspect of the proved factual position, we hold that there are valid merit and substance in the submission of the learned Additional Public Prosecutor.
27. In this regard it is very useful to refer the judgment of the Honourable Apex Court in a case namely, Sharad v. State of Maharashra reported in AIR 1984 SC 1622: 1984 SCC (Cr) 487.
wherein the Honourable Apex Court has constituted "panchseel of proof" for a case based on circumstantial evidences, the Honourable Apex Court has enunciated five golden principles and such principles enunciated, have been established in this case to render conviction as against the appellants/accused.
28. The learned counsel for the appellants/accused submitted that the conviction solely based on the confession of the co-accused and the same is not a substantive piece of evidence, but it is a very week piece of evidence and the same could not be relied upon and such evidence can only be used in support of other evidences, and cited the judgment of the Honourable Supreme Court in a case namely, Sidharth ETC. ETC. vs. State of Bihar reported in 2006 (1) T.N.L.R.39 (SC) and the judgment of this Court in a case namely, K.Vellingiri and four others vs. Abdul Nazer Mahdani and seven others reported in 2010 (2) MWN(Cr.) 361 (DB).
29. As we already pointed out above though in the first instance arrest of A-2 was effected by the Investigation Officer - P.W.27 of A-2 and on her confession, seized the material objects connecting the accused under mahazar and thereafter, on identification, the first accused Kumar was arrested and on his confession in connecting the accused to the crime material objects were seized under athatchi and on identification of accused 1 and 2, third accused namely Sivagnanam was arrested and material objects were seized under athatchi in connecting the accused to the crime and moreover, as pointed out above, there is also other material substantive evidences through chain of evidence without any break in connecting the accused to the crime, the above judgments cited and the principal laid down thereunder by the Honourable Apex Court as well as by this Court shall not apply to the facts and circumstances of the case and the same cannot be useful to the accused.
30. The learned counsel for the appellants/accused vehemently submitted that the trial Court relied on the extra judicial confession given by A1-Santi to P.W.2, community leader and the same is also marked as Ex.P13 and such statement given by the accused have not brought to the knowledge of the accused, when they were questioned under 313(1) (b) Cr.P.C and hence, conviction rendered by the trial Court based on such extra judicial confession is liable to be set aside and cited the judgment of the Honourable Apex Court in a case namely, "Ajay Singh vs. State of Maharashtra reported in (2008) 1 MLJ (Crl) 887 (SC)"
31. This Court while considering the evidence on record, has not adverted to the evidence of P.W.2-Velusamy, community leader as well as the extra- judicial confession given by A-2, Santi, which is marked as Ex.P3 and except these evidences, we have come to a irresistible conclusion independently as pointed out in connecting the accused with the crime and hence the above case referred to, shall in no way useful to the appellants/accused.
32. The learned counsel for the appellant in Crl.A(MD)No.184 of 2009/accused No.3 submitted that for rendering the conviction under Section 201 I.P.C, the prosecution has to establish the knowledge of commission of offence which is lacking and hence, the conviction rendered is not sustainable and also cited the judgment of the Honourable Apex Court in a case namely, "State of Karnataka vs. Madesha and others reported in (2208) 1 MLJ (Crl) 530 (SC)",
33. But, the judgment cited above, shall not useful to the case of the appellant/accused No.3, in the light of cogent convincing evidences about the knowledge of commission through valid recovery of cycle M.O.11 from the custody of A-3.
34. For the reasons stated above, the conviction rendered by the trial Court as against A-1, A-2 under Section 302 r/w 34 and 201 I.P.C and as against the third accused under Section 201 I.P.C and the sentences awarded thereunder are based on the valid evidences, both the oral and documentary and there is no infirmity or irregularity OR illegality in the judgment of the trial Court and the same does not warrant interference by this Court even in the sentences awarded after taking into consideration the nature of the commission of the offence proved.
35. In the result, these Criminal Appeals are dismissed and the conviction and sentence awarded by the learned Principal Sessions Judge, Virudhunagar District at Srivilliputhur in S.C.No.190 of 2007, dated 29.06.2009, are hereby confirmed.
pm To
1.The Principal Sessions Judge, Virudhunagar District at Srivilliputhur,
2.The Inspector of Police, Rajapalayam South P.S., Virudhunagar District.
3.The Additional Public Prosecutor Madurai Bench of Madras High Court, Madurai.