PANNEERSELVAM Vs. SEETHARAMAN ALIAS SHIVAALIASMURUGANALIASRANJITH KUMAR

JUDGEMENT

(1.) THIS judgment shall govern these two appeals in C.A.No,628/2006 by A-1 and A-4 and C.A.No,532/2006 by A-5. These appellants along with other three accused shown as A-2, A-3 and A-6, stood charged, tried and found guilty as follows: TABLE A-5 was found guilty by the trial Court under Sec.201 r/w 34 of IPC and awarded three years Rigorous Imprisonment along with a fine of Rs.1000/- and default sentence. The trial Court made an order of acquittal of A-2, A-3 and A-6 in respect of all the charges levelled against them.

(2.) SHORT facts necessary for the disposal of these appeals can be stated as follows: (a) P.W.1 Abdul Razak was entrusted with M.O.1 ambassador car, bearing registration No.TN-31/C-9169 by P.W.3 who is the owner of the car. P.W.1 in turn employed the deceased Ramesh and was hiring it out. Whenever Ramesh took the car for the purpose of taking the passengers, he used to inform P.W.1 over phone. Accordingly, on 10.2.2002 around 5.00 P.M., Ramesh informed to P.W.1 that he had got a passenger to go to Jayankondam and thereafter to proceed to Chennai and would come back to Vridhachalam on the next day. (b) P.W.5 is the mother and P.W.6 is the father of Ramesh. When P.W.5 was in her house at about 5.30 P.M. on 10.2.2002, Ramesh came to the house to change the dress and told her that he was going to Chennai and would come back only in the next evening. At that time, A-1 who came there stated that it was he who hired the car and asked a cup of water. He further informed that he belonged to Udayarpalayam. Since Ramesh did not come for a few days, P.W.1 gave a complaint to Vridhachalam Police Station on 13.2.2002. The same is marked as Ex.P1. On the strength of Ex.P1, P.W.29, the Sub Inspector of Police, attached to the respondent police station, registered a case in Crime No,92/2002 under Sec.365 of IPC. The printed FIR Ex.P21 was despatched to the Court. (c) P.W.29 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P10, and also a rough sketch, Ex.P22. Then he examined the witnesses and recorded their statements. After doing so, the case was altered to Sec.379 of IPC. The amended FIR, Ex.P23, was despatched to the Court. (d) On receipt of the copy of the FIR, P.W.33, the Inspector of Police of the said Circle, took up further investigation. On 27.9.2002, pending investigation by the Inspector of Police, Ariyalur Police Station, in Crime No.176/2002 under Sections 302 and 379 of IPC, the accused were arrested. They gave confessional statements to the effect that they kidnapped the deceased Ramesh along with the car, murdered him and have stolen the car. The said Inspector of Police, Ariyalur, informed the same to P.W.33, who took up further investigation in this case. On perusal of these materials produced, P.W.33 converted the case in Crime No,92/2002 to Sections 302 and 379 of IPC. The amended FIR, Ex.P26, was despatched to the Court. (e) Continuing with his investigation, P.W.33 gave a requisition to the Chief Judicial Magistrate to conduct identification parade. Accordingly, identification parade was conducted by P.W.27, the Judicial Magistrate, Tittagudi, in which P.Ws.1, 3, 5 and 6 participated. The identification parade proceedings are marked as Ex.P19. (f) The Investigator proceeded to the house of A-1, made an inspection and prepared an observation mahazar marked as Ex.P27, and also a rough sketch Ex.P28. Pursuant to the requisition made by the Investigator, the skull and the skeleton of Ramesh were sent to Forensic Laboratory for analysis. On 23.9.2002, the Investigator arrested A-4 when he came forward to give a confessional statement in the presence of P.W.22, the Village Administrative Officer, and his Assistant. The same was recorded. The admissible part is marked as Ex.P11. Then A-4 took the police party to A-1's house and produced an iron pipe, M.O.6, crowbar, M.O.7, and spade, M.O.8. They were all recovered under a cover of Ex.P12, the mahazar. He was sent for judicial remand. (g) The Investigator has taken A-5 to police custody following the order passed by the Judicial Magistrate, Vridhachalam. A-5 came forward to give a confessional statement voluntarily, and the same was recorded. The admissible part is Ex.P13. Following the same, he produced a TVS 50 motorcycle, M.O.9, from his house. The same was also recovered under a cover of mahazar, Ex.P14. A-5 was also produced before the Court for judicial remand. (h) The further investigation was taken up by P.W.34, the Inspector of Police. He took up investigation in Crime No.176/2002 of Ariyalur Police Station and arrested the accused Baskar, A-2, and Sivakumar, A-4. A-2 came forward to give a confessional statement in the presence of witnesses. The same was recorded through video camera. M.O.10 is the video camera, and the video cassette is M.O.11 which was sent to the Judicial Magistrate's Court, Ariyalur. They were sent for judicial remand. (i) Police custody was ordered for A-3. A-3 came forward to give a confessional statement. The same was recorded. Pursuant to the same, he took the police party and identified the place where the dead body of Ramesh was buried. An intimation was given to the Investigator in Crime No,92/2002 and also to the parents of the deceased. A-3 identified the place where the dead body was buried. The observation mahazar and rough sketch were prepared. They are Exs.P30 and P31 respectively. Then the dead body was exhumed in the presence of the Tahsildar, P.W.26. The parents of the deceased and also the other witnesses identified that it was that of the deceased Ramesh. P.W.26 conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P16. A requisition was given to the hospital authorities for the purpose of autopsy. (j) The dead body was subjected to postmortem by P.Ws.24 and 25, the Civil Surgeons, attached to the Government Hospital, Jayankondam. They issued a postmortem certificate, Ex.P15, with their opinion that the deceased would appear to have died of the injuries sustained. (k) Following the same, M.O.2, pant, M.O.3, shirt, and M.O.4, silver waist cord were recovered under a cover of mahazar, Ex.P32. On that day, on suspicion, A-6 was arrested. He came forward to give a confessional statement. The same was recorded under a video cassette M.O.14. The confessional statement of A-5 was also recorded. M.O.1, white ambassador car, was recovered under a cover of Ex.P3, mahazar. Further, the confessional statements of A-1 and A-4 were recorded in the presence of Tahsildar, Ariyalur, under video cassettes, marked as M.Os.15 and 16 respectively. On completion of investigation, the Investigator filed the final report under Sections 364, 302 r/w 34, 302 r/w 109 and 201 of IPC.

(3.) THE learned Counsel appearing for A-1 and A-4 would submit that the prosecution has not proved its case beyond reasonable doubt that there is delay in lodging the complaint to the respondent police that no explanation is forthcoming that the only possible evidence of P.W.5, the mother of the deceased, was different from chief and cross-examination that at the time of trial, she has stated in the chief that the person who accompanied her son on 10.2.2002 was not present in Court that though she has identified A-1 and A-2 at the time of identification parade, she has deposed before the Court that the person whom she identified at the time of identification parade, was not available in Court that under the circumstances, the evidence of P.W.5 cannot be accepted at all that as far as the recovery of M.O.1 car, is concerned, according to the Investigator, it was recovered under Ex.P3 mahazar that if Ex.P3 is looked into, it would indicate that it is pertaining to recovery of two items and did not include car that there is no material available to accept the said recovery that according to the prosecution, M.Os.6 to 8, iron pipe, crowbar and spade respectively, were recovered near the house of A-1 pursuant to the arrest and confession of A-4 on 23.9.2002 that according to the Investigator, A-1 was arrested on 14.9.2002 itself that in such circumstances, it is highly doubtful whether the recovery of those weapons could have been made as put forth by the prosecution that as regards A-1, nothing was recovered from him that according to the prosecution, A-3 on arrest gave a confessional statement, and following the same, he identified the place where the dead body of Ramesh was buried that a perusal of the inquest report would indicate that on 13.9.2002 at about 7.30 A.M., one Chinnaian @ Muthusamy gave information to the V.A.O., Pilakurichi that a dead body was buried in the said spot that it also clearly speaks about the name of the deceased as Ramesh, and he was 22 years old, and he was a car driver that this would indicate that the place where the dead body was buried came to the knowledge of the police even on 13.9.2002 itself through the VAO, and thus the confessional statement leading to the above recovery cannot be accepted that the trial Court has erroneously found A-1 and A-4 guilty, and hence they are entitled for acquittal in the hands of this Court.