APPU ALIAS DEEPAN KUMAR Vs. STATE

JUDGEMENT

(1.) (Prayer: Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Chennai at Poonamallee, made in S.C.No.311 of 2004 dated 8.12.2005.)All these criminal appeals namely C.A.Nos.39, 47, 85, 92 and 165 of 2006 concentrate in challenging a judgment of the Additional Sessions Division, Chennai at Poonamallee, in S.C.No.311 of 2004 whereby the appellants, six in number, stood charged, tried and found guilty as follows:TABLE2.Necessary facts for the disposal of these appeals can be stated thus:(a) P.W.2 the eldest sister of the deceased Prasad Sebastin, and P.W.1, the husband of P.W.2, were residing at Madras. P.W.1 was employed in the Government Secretariat. The deceased Prasad Sebastin, the brother of P.W.2, was a native of Punalur in the State of Kerala. He was an active member of CPI(M) and was also the Opposition Leader of Punalur Municipality. Originally, he was a resident of Madras. He worked at Britania Biscuit Company at Madras when he was staying with his father Mr.Rozario, an Ayurvedic Doctor. (b) On 25.5.2003, Sebastin came to Madurai in a Jeep of Rural Cooperative Agricultural Development Bank of which he was the President during that time. Then he boarded a train to Chennai. On the morning of 26.5.2003, he went to the house of P.W.2 at Door No.7/7, Peters Colony, had breakfast and went outside to see a Financier, who advanced moneys to one Navasath to purchase a motor vehicle. He did not return that day, but phoned to P.W.2 that he would stay in his friend's house. The next morning that was on 27.5.2003, he came to the house of P.W. 2 After breakfast, he went outside telling that he was to meet a Financier, but on the night of 27.5.2003, he did not return. Since he did not return to Punalur as per the original plan on 29.5.2003, and there was no report from him and also he did not return for a few days, P.W.2 spoke to her mother at Punalur. Her mother replied that he did not come to Punalur also. Hence P.W.1 approached D2 Anna Salai Police Station and gave Ex.P1, the report. (c) P.W.60, the Sub Inspector of Police, attached to the respondent police station, on the strength of Ex.P1, the report, registered a case in Crime No.521/2003 under the caption 'man missing'. The printed FIR in that regard is marked as Ex.P96. Then P.W.60 took up investigation and proceeded to the spot. He enquired both P.W.1 and P.W.2 and recorded their statements. He noted the Caller I.D. Phone used by P.W.1, and further noticed that Prasad Sebastin has contacted P.W.2 on 26.5.2003 from phone No.24510087 and on 27.5.2003 from phone No.24512645. He called police Photographer, P.W.3, and took M.O.2 series in respect of those numbers as found in the Caller I.D. The Caller I.D. Phone is marked as M.O.1., while the series of the photographs are marked as M.O.

(2.) P.W.60 deputed police personnel to find out these numbers as found in the Caller ID. Then he examined P.W.5 Bharath, Susil, the Financier at T.Nagar and Jayachandran, P.W.24, a close friend of the deceased, and recorded their statements. (d) When the friends of Sebastin came to know about his missing, they phoned to P.W.1 on the night of 30.5.2003. Thereafter, they met P.W.1 at Chennai. They also met Jayachandran. On 31.5.2003 at about 10.30 A.M., one Titus, a friend of the deceased, contacted P.W.1 over phone and requested her to come to Kottivakkam with the police officials. He also further stated that Sebastin was suspected to have been kept in a house secretly. P.W.1 accompanied by P.W.23 and also P.W.60, the Sub Inspector of Police, went to the house at Kottivakkam and found Jayachandran and friends of Sebastin. After several knockings, the door was opened by A-1 Anand. When enquired, he pleaded innocence about the deceased. He also stated that the owner of the house was to Tuticorin with his wife. But, Jayachandran informed that the house belonged to one Indira, A-6. At that time, a courier tapal addressed to Indira Suresh Babu, sent by Suresh Babu from Kerala was received. The tapal contained a cheque for Rs.90,000/- When P.W.60 questioned, A-1 did not give direct answers. Then, a suspicion arose on the conduct of A-1. Then P.W.60 arranged for surveillance over the movements of A-1. Various steps were taken to trace Prasad Sebastin by issuing notice and passing on information through VHF. (e) In the meanwhile, on a complaint given by one Suresh Kumar, an Advocate and the friend of Prasad Sebastin, a case in Crime No.240 of 2003 was registered by P.W.59, the Sub Inspector of Police at Punalur, Kerala, on 1.6.2003, for man missing. After doing the preliminary enquiry, he visited Chennai. He met P.Ws.1 and 2. On coming to know that a case was already registered by D2 Anna Salai Police Station, he went back to Kerala and filed the final report before the Judicial Magistrate concerned.(f) Continuing with the investigation in Crime No.521/2003 of D2 Anna Salai Police Station, P.W.60 enquired Prakas, the brother of Prasad Sebastin and Gurudas on 1.6.2003, and recorded their statements. P.W.14, the STD Booth owner in Kottivakkam and A-6 were also enquired, and their statements were recorded. On 3.6.2003, a search was made in the Mortuary of Government Hospital. On 7.6.2003, P.W.60 enquired one Rajendran, the Special Branch Sub Inspector of Thiruvallur District, and came to know that a case has been registered in Thiruvelangadu Police Station, a few days ago in Crime No.163/2003 under Sec.174 Cr.P.C. on the basis of the complaint given by P.W.6, the Village Administrative Officer, in Ex.P4 on 5.6.2003 stating that a dead body of a male was found. (g) P.W.57, the Sub Inspector of Police, who took up the investigation in Crime No.163/2003 as found in Ex.P88 FIR, went to the place of occurrence and prepared a rough sketch, Ex.P89, and also an observation mahazar, Ex.P6, in the presence of P.Ws.7 and 8. Then P.W.57 conducted inquest as found in the report, Ex.P90, and secured M.O.38, plastic bottle, found near the dead body under a cover of mahazar, Ex.P5. Then the dead body was sent to the Government Hospital for the purpose of postmortem through P.W.11, the Head Constable. P.W.9, the Photographer, took photographs in various angles as found in M.Os.8 to 15, and also the negatives were marked as M.Os.39 to 46. At that time, the dead body was in a highly decomposed stage. (h) P.W.51, the Assistant Surgeon, attached to the Government Hospital, Tiruvallur, on the requisition made, conducted autopsy and gave his finding in Ex.P57. To a question raised by the Investigating Officer, he gave the particulars as found in Exs.P58 to P63. Then, the dead body was also buried in Periyakuppam Burial Ground. i) P.W.60, who was continuing with the investigation, compared the photographs in M.Os.8 to 15 along with M.O.50, the photographs of Mr.Prasad Sebastin, and they were found to be materially tallying. Thereafter, P.W.60 came to know that it became evident that Sebastin was kidnapped and was also done to death. (j) In the meanwhile, the investigation was taken up by P.W.61, the Inspector of Police, who enquired the witnesses on 7.6.2003 and recorded their statements. In order to ascertain the cause of death and to further ascertain the identity of the victim through scientific methods, P.W.61 thought it fit to make a request for exhumation with the Tahsildlar. Accordingly, on 9.6.2003, at Periyakuppam Burial Ground in the presence of P.W.10, the Tahsildar, P.W.47, the scientific assistant, P.W.54 Dr.Durairaj and in the presence of police officials, the dead body of the male was exhumed from the earth. The brothers and friends of Prasad Sebastin after seeing the corpus identified that it was that of Sebastin. Dr.Durairaj removed the head, M.O.59, and left femur, M.O.60, from the dead body, and they were properly packed and preserved by P.W.47, the expert from Forensic Science Laboratory. (k) P.W.61 enquired P.W.10, the Tahsildar, and other witnesses and recorded their statements. P.W.10, the Tahsildar, in her proceedings marked as Ex.P7, recorded the events happened during the course of exhumation.(l) On 12.6.2003, P.W.15 Shankar and P.W.19 Arumugam reported to P.W.61 Investigator, to have seen the person in the photograph shown to them. Their statements that at about 6.30 A.M. on 28.5.2003, three identifiable persons forcibly pushed another person into TATA Sumo Car bearing registration No.TN 02 D 4462 and kidnapped that the same car was also followed by another person in a Hero Honda Motorcycle and that the motorcyclist collected a purse and papers fell on the floor and followed the four wheeler were recorded. (m) On enquiry from the City Traffic Police, P.W.61 came to know that the TATA Sumo Car belonged to one Gilbert living at No.3 Adiyaman Street, Manavala Nagar. The Investigating Officer immediately approached Gilbert and enquired him. He replied that his brother Sanjay Sudanthiranathan shown as A-5, was driving the vehicle, and it was Anand A-1 residing at Sevvaipet hired the car a few days ago to go to Chennai. When A-5 was enquired, he came forward to give a confessional statement voluntarily. The same was recorded in the presence of Shankar and P.W.19 Arumugam. The admissible part of the confessional statement is marked as Ex.P100. Pursuant to the confession made, the case was altered to Sections 363, 302, 201 r/w 120(B) of IPC. The amended FIR Ex.P99 was despatched to the Judicial Magistrate concerned. Following the confessional statement, TATA Sumo Car bearing Registration No.TN 02 D 4462 was seized under Ex.P12 mahazar. Then A-5 took the Investigator to the New Colony in Kottivakkam and identified A-2 who was arrested the very day. He came forward to give a confessional statement voluntarily. The same was recorded in the presence of witnesses and the admissible part is Ex.P101. Equally, A-4 was arrested on the very day at about 8.00 P.M. A-3 was also arrested. He came forward to give a confessional statement voluntarily. The admissible part is Ex.P102. (n) The Investigator examined P.W.25, Selvakumar, a Traffic Police Constable, who gave a statement that he saw the deceased and A-2 to A-5 in the TATA Sumo Van on the particular day. P.W.25 identified the accused and the person who was kidnapped as Prasad Sebastin on seeing the photograph. Then the Investigator went to Thiruvanmiyur and Kottivakkam, and the scene of occurrence was identified to him by P.W.13 and one Manoharan. An observation mahazar and also a rough sketch were prepared. They are marked as Exs.P8 and P9 respectively. The statements of P.Ws.19, 15, 25 and 13 were recorded. (o) On the information by the other accused, A-1 was arrested at North Bazaar Railway Gate, Sevvaipet, at 7.00 A.M. in the presence of P.W.30, Revenue Inspector, and one Sundaram. A-1 came forward to give a confessional statement. The same was recorded, and the admissible part is Ex.P103. As per the statement, A-1 showed the route of kidnapping and also the places where the personal belongings of the deceased were thrown. On 18.6.2003, A-2 gave further confessional statement. Likewise A-4 also gave further confessional statement. The admissible part is marked as Ex.P104. Likewise, the further confessional statements of A-3 and A-5 were also recorded. At Pattarai Perumpudur, A-2 produced M.O.58 knife, which was seized under Ex.P38, mahazar. A-4 produced M.O.6, ash coloured full sleeve shirt, from the hiding place on the roadside which was secured under Ex.P39 mahazar. He also produced from a thorny bush on the roadside at Thiruthani Road near Kanagavallipuram, a black coloured jeans pant and a pair of grey coloured socks which were marked as M.Os.5 and 7 respectively. The accused were sent for judicial custody. The properties were sent to Court. (p) In view of the seriousness of the case, the investigation was transferred to CB CID (Organised Crime Unit), Chennai East District, by the proceedings of the Director General of Police dated 16.7.2003. (q) P.W.62, Sathyanarayan, the Deputy Superintendent of Police, CB CID, was nominated for the purpose by virtue of proceedings of the DGP under Ex.P109. The records relating to Thiruvelangadu Police Station in Crime No.163 of 2003 under Sec.174 of Cr.P.C. were handed over to P.W.62. Then P.W.62 inspected the places where from Prasad Sebastin was allegedly kidnapped and also where the dead body was found. He enquired all the witnesses. He collected information about A-1 to A-5. The statements of witnesses were recorded. Ex.P26 is the attendance register of the Italian Restaurant in which A-4 was allegedly working. A requisition was forwarded under Ex.P30 on 10.10.2003, with reference to phone number 28593186, the telephone of P.W.1's house. The same was provided by P.W.33, Divisional Engineer, BSNL, under Ex.P31. The call details of 9444126413 and 9444118099 for the months of May, June and July which belonged to A-4 and A-1 respectively, were received under Ex.P32. Equally, the printout of call details for the months of May and June 2003 relating to 9840054214 and 9840054216 were furnished by P.W.35, the Airtel Officer, which is marked as Ex.P33. (r) Thereafter, the Investigator enquired the Doctors, Forensic Experts, Tahsildar and other witnesses and recorded their statements. On 20.8.2003, after appraisement of the evidence collected, the Investigator strongly believed that A-6 Indira was also behind the crime. He went to Kottivakkam and arrested her after informing the reasons for the arrest. She was brought to CB CID Office and was interrogated. Then the Investigator went to Kerala and enquired P.W.59, Abdul Razeed, the Sub Inspector of Police, Punalur, and recorded his statement. A requisition was placed before the learned Chief Metropolitan Magistrate for recording the statements of witnesses under Sec.164 of Cr.P.C. Accordingly, P.W.53, Vijaya Kanth, Judicial Magistrate, recorded the statements of the witnesses as found in Exs.P76 and P77. On completion of the investigation, the Investigating Officer filed the final report.

(3.) ADDED further the learned Counsel that in respect of conspiracy that was alleged to have been hatched up between A-1 to A-4, the witnesses examined were P.Ws.17 and 18 that P.W.17 has categorically admitted that he was examined by the CB CID 10 days after the occurrence but, his statement was recorded on 21.7.2003 by P.W.62 under Sec.161 Cr.P.C. that the statement also reached the Court on 21.11.2003, and thus it would be quite clear that he was a witness introduced later in order to speak to the factum of conspiracy that equally, the very reading of the evidence of P.W.18 would clearly indicate that he could not have seen any one of the accused as claimed by him that his statement was recorded on 17.6.2003, by P.W.61 but it has reached the Court on 8.7.2003 that the very reading of the entire evidence would clearly indicate that an incident of conspiracy as narrated by P.W.18 could not have happened at all, and thus the evidence of P.Ws.17 and 18 who were examined in order to prove conspiracy should have been rejected.