KALYANASUNDARAM Vs. INSPECTOR POLICE

JUDGEMENT

(1.) The Accused Nos.1, 2 and 3, who were convicted for offences under Section 302 r/w 34 of IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/- [Rupees Five Thousand] each in default to undergo Simple Imprisonment for Three months each by judgment dated 09.09.2011 in S.C.No.36 of 2011 on the file of the learned Additional District and Sessions Judge, Karaikal, are the appellants before us.

(2.) The prosecution case begins with the evidence of Natarajan [P.W.1] who sensed a foul smell emanating from a water tank of an old Prawn Farm near Madha Koil Street, Poovam Kottucherry in Karaikkal on 30.12.2010 around 09.30 a.m., and out of curiosity, peeped into the tank and found a decomposed state of male body aged between 45 and 50 years floating in the tank. He was not able to identify the body and the name of the person. He went to the police station at Kottucherry and lodged a complaint [Ex.P.1] which was received by V.Purushothaman [P.W.25], the Sub Inspector of Police, who registered a case in Kottucherry Police Station Crime No.140 of 2010 under Section 174 of Cr.P.C. on 30.12.2010 at 10.00 a.m. The printed F.I.R was marked as Ex.P.23. P.W.25-V.Purushothaman, the Sub Inspector of Police, went to the place where the body was found at around 10.30 a.m. on 30.12.2010. He organized to have photographs taken of the body by S.Murugan [P.W.22]. The Photographs were marked as M.O.15 and M.O.16. He prepared an observation mahazar and rough sketch [Ex.P.2] in the presence of witnesses Parasuraman (not examined in court) and Pandiarajan [P.W.2]. He found a pair of slippers [M.O.1], hundred rupee currency notes [100 X 4 = 400 - M.O.2] and a visiting card of M/s.Malar Fabs [M.O.3] under the cover of mahazar [Ex.P.4]. He recorded the statements of Natarajan [P.W.1], Pandiarajan [P.W.2] and Parasuraman [not examined in court] in the presence of panchayatars and conducted inquest over the dead body. The inquest report was marked as Ex.P.13. The body was thereafter sent to the Government Hospital at Karaikal for autopsy. Dr.Narasima Murthi [P.W.21] conducted autopsy over the body and in his evidence as well as in the post-mortem certificate he noted as follows:-

(3.) V.Purushothaman [P.W.25], the Sub Inspector of Police contacted Anburaj [P.W.13] whose name and the mobile number was found in the visiting card [M.O.3] and enquired him about Malar Fabs and also told him about the presence of a male body in the water tank of an old prawn farm. Since Anburaj [P.W.13] had quit from the partnership of Malar Fabs some time in March 2010, he was not able to provide any substantial clue to the police. Further, the police had contacted him only over phone and therefore, he did not have an opportunity of seeing the dead body on 30.12.2010. It appears that Anburaj [P.W.13] seems to have shared the enquiry made by the Sub Inspector of Police [P.W.25] with Ramesh [P.W.14] who was working as Manager in Malar Fabs. Therefore, the news spread in Tiruppur area that the body of a person concerned with Malar Fabs has been found in Karaikal. On 31.12.2010, one Paul Durai (P.W.3) met the Sub Inspector of Police (P.W.25) and wanted to see the body of the person which was found dead in the water tank. He was taken to the mortuary where he identified the deceased as his own brother Ashok Kumar. A statement was recorded from Paul Durai based on which, the case was altered from one under Section 174 of Cr.P.C. to 302 of IPC and a report [Ex.P.24] was sent to the jurisdictional Magistrate. Thereafter, investigation was taken over by Rajasankar Vellat [P.W.26], Inspector of Police, Kottucherry Police Station on 31.12.2010. He enquired some witnesses and sent a further alteration report , altering the offence from one under Section 302 of IPC to Section 302 r/w 34 of IPC. On 01.01.2011 at 20.15 hours based on credible intelligence he arrested Kalayanasundaram (A1) near Poovam bus stand and brought him to the police station. In the presence of Gunasekaran (P.W.4), a revenue officer and M.S.Jeromne, the Village Administrative Officer [not examined in court] , he recorded the confession statement of Kalayanasundaram (A1) and came to know about the involvement of Kalaivanan (A2) and Kumaresan (A3). From the possession of Kalayanasundaram (A1), the investigating officer seized a mobile phone [M.O.8] under the cover of mahazar (Ex.P.6) on 01.01.2011 at 23.50 hours. On 02.01.2011 at 04.45 hours Kalaivanan (A2) was arrested and at 04.45 hours Kumaresan (A3) was arrested by the investigating officer at Manikandanallur. They were brought to the police station and their confession statements were recorded. On the disclosure made by A1, the investigating officer seized a sum of Rs.7,000/- from the sister's house of A1 under the cover of a mahazar (Ex.P.11) in the presence of witnesses Gunasekaran (P.W.4) and Jeromne (not examined in court). The investigating officer found that the mobile phone (M.O.8) had two SIM Cards viz., a Vodafone card [M.O.19] and Airtel card [M.O.20]. It appears that on 02.01.2011 at about 12.15 hours, the Inspector of Police (P.W.26) went to the water tank and from near water tank, he seized a stone (M.O.9 blue metal), Supermax Blade (M.O.10), a white sleeveless Banian (M.O.11) and a black colour Sigmatel Cellphone (M.O.12) under the cover of a mahazar (Ex.P.10) in the presence of Gunasekaran (P.W.4) and Jeromne (not examined in court). At this juncture, it may be relevant to state that in Ex.P.10 Mahazar, it is stated that sigmatel cellphone belongs to Kalayanasundaram (A1) and that it was found on the floor of the water tank in which there was water as stated in the mahazar (Ex.P.10). On 02.01.2011 all the accused were produced before the Judicial Magistrate concerned for remand. On 05.01.2011, the investigating officer examined Kavitha (P.W.6), Jayaprakash (P.W.7), Haja Maraicar (P.W.8), MohaN (P.W.9) and A.Selvaraj (P.W.10) and recorded their statements. On 06.01.2011, he went with a team of officers to Tiruppur and examined Mrs.Malathi (P.W.11), the wife of the deceased, Anburaj (P.W.13) and Ramesh (P.W.14) . On 07.01.2011, he examined P.Krishnan (P.W.12), a relative of the deceased, P.Sakthivel (P.W.15), V.Sridhar (P.W.16) and N.Vengadachalam (P.W.17) at Bhavani. On 10.01.2011, he recorded the statement of T.Sakthivel (P.W.18) and P.Arutselvam (P.W.19). He received from Arutselvam (P.W.19) an application dated 22.12.2010 (Ex.P.17) tendered by A1 with a Passport Size Photograph of A1 affixed on the application for obtaining a vodafone SIM card for the mobile connection 9626026980. He also identified the vodafone SIM Card which was marked as M.O.14. The investigating officer took steps to obtain call details relating to the vodafone SIM Card bearing Cell No. 9626026980 (M.O.14) from the company. Similarly, he also took steps to obtain call details from Aircel SIM Card bearing Cell number 9524473217, the mobile phone number that was used by the deceased. He received the calls details from the two companies. On 24.02.2011, he examined Sunil (P.W.20), the Manager of Vodafone and Vijayakumar (P.W.24), an Executive from Aircel with regard to the call details that he received from the mobile phone companies. On 08.03.2011, he examined the Doctor who conducted autopsy and collected the post-mortem certificate. On completing the investigation, the investigating officer filed final report against the appellants for offence under Section 302 r/w 34 of IPC before the Judicial Magistrate No.II, Karaikkal, who took the same on file in PRC No.5 of 2011. On the appearance of the accused, the provision of Section 207 of Cr.P.C. was complied with and the case was committed to the Court of Sessions, Puducherry and later on, transferred to the Additional District and Sessions Judge, Karaikkal where, a charge under Section 302 r/w 34 of IPC was framed against all the accused. When questioned, they pleaded not guilty to the charge.