MOHAN ALIAS MOHANKUMAR Vs. STATE

JUDGEMENT

(1.) APPELLANTS are Accused 1 and 2 in Sessions case No. 46 of 1998 on the file of Principal Sessions Judge, Chengalpattu. They along with another accused by name Appu (3rd Accused), were convicted for offences under Sections 457, 341, 302 read with 34 I.P.C. and 392 I.P.C. and sentenced to undergo life imprisonment for the offence under Section 302 read with 34 I.P.C. and no separate sentences were awarded for the offences under Sections 457, 341 and 392 I.P.C.

(2.) THE case of the prosecution is briefly stated hereunder: a) THE deceased by name Subramani aged about 46 years was a resident in Door No.7/3, Vanniar street, Sadras village. He worked as a Aluminium civil contractor in Indira Gandhi Atomic Power Project, Kalpakkam. Since his son met with an accident. For taking treatment at Madras, his injured son and his wife were temporarily staying at Madras. THE deceased Subramani alone was staying in the house at Sadras. He was last seen at 9-30 P.M. on 11-9-97. THEreafter, he did not attend his office. At about 7-30 A.M. on 13-9-97 somebody came and enquired about the deceased Subramani. Since there was no response from the house of the deceased, the caller enquired P.W.1-Sunil, who is the neighbour of the deceased. THE said Sunil on noticing that the cycle and the motor cycle of the deceased Subramani were parked in the ground floor, on suspicion, he verified the presence of the deceased through the rear side of his house and noticing that the rear door opened, P.W.1 went inside and saw the deceased Subramani lying in the hall. His hands and legs were found tied. Bureau was opened and dresses and other articles were scattered. On noticing the same, P.W.1 went to Sadras Police Station at 9 A.M. on 13-9-97 and gave a complaint to P.W.10-Sub Inspector of Police, Sadhurangapattinam. P.W.10 registered his complaint as Crime No. 554/97 under Section 302 I.P.C. He prepared Express first information report-Ex.P-17 and submitted copies of the same to the concerned Judicial Magistrate and higher authorities for taking further action. b) On receipt of the Express first information report-Ex.P-17, P.W.11-Inspector of Police, Thirukazhukundram, rushed to the scene of occurrence at 10-15 A.M. on 13-9-97. He prepared a rough sketch-Ex.P-18, and observation mahazar-Ex.P-11 in the presence of witnesses. On his request, P.W.7-finger print expert came to the spot and traced out the finger prints found there. P.W.11 conducted inquest on the body of the deceased in the presence of panchayatdars. Ex. P-19 is the inquest report. On receipt of Ex.P-20 complaint from P.W.20, wife of the deceased, he altered the section of law into 302 read with 380 I.P.C. THE altered first information report is Ex. P-21. THE body was sent for post-mortem. P.W.6-Doctor conducted post-mortem on the body of the deceased Subramanian. Ex.P-13 is the post-mortem report. He also enquired the Doctor and obtained a statement. He recovered blood-stained cement, bed sheet, towel, underwear, banian etc., under mahazar-Ex.P-12 in the presence of witnesses. On 14-9-97, P.W.11 seized full hand shirt, banian, lungi, iron box, nylon wire, and telephone wire. On 15-9-97 around 12 noon he arrested A-1 near Sadurangapattinam bazaar. He made a voluntary confessional statement, the admissible portion of which is Ex. P-3. Pursuant to ExP-3, he produced M.O.9 from his house, which was recovered by P.W.11 under Ex.P-4. THEn A-1 took P.W.11 to the house of P.W.5 and identified M.Os.1, 6, 7, 8, which were recovered under mahazar Ex.P-6. A-1 also identified A-2, who also was arrested. A-2 also made a voluntary confessional statement in the presence of witnesses, the admissible portion of which is Ex.P-7. On the basis of his admission, M.O.2 was seized under mahazar-Ex.P-3. Both A-1 and A-2 identified A-3. P.W.11 arrested A-3 at 9-20 P.M. He also made a voluntary confessional statement, the admissible portion is Ex.P-9. Based on Ex.P-9, M.Os.3, 4 and 5 were recovered under Ex.P-10 mahazar in the presence of witnesses. All the three accused were remanded to custody. THEir finger prints were sent to finger print expert for his opinion. He also arranged to send all the seized articles to the Court on the same day and sent some of the M.Os. for chemical examination through Judicial Magistrate's Court. On receipt of chemical analysis report and serological report, and after examination of all the witnesses, and completion of investigation, he filed charge sheet under Sections 457, 341, 302 and 392 I.P.C.

(3.) AT the foremost, let us consider the evidentiary value of the statement made by Finger Print Expert-P.W.7 and his report-Ex.P-14. It is the argument of the learned counsel for the appellants that inasmuch as the investigation officer has not obtained permission from the Court under sections 4 and 5 of the Identification of Prisoners Act, 1920 and summoned finger print expert-P.W.7 and utilised his service, his evidence and the ultimate report has no evidentiary value and the same cannot be relied on. It is true that as per Sections 4 and 5 of the Identification of Prisoners Act, 1920, any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards, if so required by a police officer allowed his measurements to be taken or photograph to be taken on the application of the police officer, an order has to be made by the Magistrate concerned. Admittedly, in the case on hand, the Inspector of Police-P.W.11 has not obtained permission from the Court concerned, however, the thumb impression of the accused were taken down by the Inspector of Police-P.W.11 during investigation after the arrest of the accused and when they were in the Police Station. This objection was raised before the learned trial Judge. Considering the materials/evidence placed on the side of the prosecution, the learned Judge has come to a conclusion that even if he eschewes the evidence of P.W.7 and his report-Ex.P-14, still there are ample evidence to link the accused with the commission of the crime. As rightly observed by the learned trial Judge, in view of the abundant materials on the side of the prosecution, we are of the view that whether the provisions of Sections 4 and 5 of the said Act were duly complied with or not" is only academic in nature and we need not venture further on this aspect.