Velmurugan v. State

120(b), 364, 302 and 201 I.P.C. But, before the trial commenced, theother accused Durai Murugan died and hence, the charges levelledagainst him abated. The appellant, on being tried before the Court ofSessions, was convicted as charged, and was sentenced to one yearrigorous imprisonment for the offence under Section 120(b) I.P.C.;five years rigorous imprisonment under Section 364 I.P.C.;imprisonment for life under Section 302 I.P.C.; and two yearsrigorous imprisonment for the offence under Section 201 I.P.C. Nofine amount was imposed and the sentences were ordered to runconcurrently. Aggrieved over the said conviction and sentence, theappellant has preferred the present appeal.4. The allegation in the charge sheet laid against the appellantand another by name Durai Murugan (hereinafter referred to as'deceased accused'), before the Magistrate's Court is that on13.8.2005, in order to commit the murder of a minor boy by nameVinothkumar, the appellant and the deceased accused conspired tokidnap the said minor boy and in furtherance of such conspiracy,kidnapped the boy; committed his murder by strangulating his neck;and thereafter, by covering the face of the body with a cloth andafter pouring petrol on the face, set fire and thereby, committedoffences punishable under Sections 120(b), 364, 302 and 201 I.P.C.5.The material facts that lie in short compass are stated thus:(a)The prosecution case was built up on the basis of thecomplaint lodged by one Anandan, who was examined as P.W.1 in thecase. P.W.1 - Anandan is the father of the deceased Minor boyVinothkumar and is residing at Vellakottai village along with hiswife and four children - two daughters and two sons. The deceased isthe second son studying IV standard at the relevant point of time. On13.8.2005, the boy went to school in the morning and finding him notreturned till 8.30 p.m., P.W.1 went in search of his son and enquiredwith his relatives and villagers. P.W.4, Kalaiarasi, a resident ofthe same street, informed P.W.1 that she saw the appellant/accusedtaking his son in a motor bike around 8.45 p.m. When enquired withone Sampath, brother-in-law of P.W.1 and one Anjalai, wife of saidSampath, they also informed that they saw the boy in the company ofthe accused in a motor bike around 9.00 p.m. P.W.3 - Senthil Kumaralso informed P.W.1 that he saw the deceased boy in the company ofthe appellant/accused around 9.00 p.m. going towards Vaniyambadi. Asthe accused is a relative of P.W.1, P.W.1 thought that the boy wouldcome back to the house. But, till the next day morning the boy didnot come back and P.W.1, perturbed by the same, again startedsearching for his son. At about 7.00 a.m., one Govindasamy informedP.W.1 that he saw the boy sitting in a motor bike in between theappellant/accused and the deceased accused around 4.00 a.m. on thatday. According to P.W.1, the appellant/accused was having a grudge https://hcservices.ecourts.gov.in/hcservices/ against the family of the deceased as though they have done a witchcraft against his family and hence, P.W.1 suspected that the accusedmight have kidnapped his son. Alleging that the appellant/accusedjoining with the deceased accused kidnapped his son Vinothkumar,P.W.1 lodged a complaint at about 9.00 a.m. on 14.8.2005 beforeAlangayam police station, which was registered by P.W.15, Sub-Inspector of Police, in Crime No.235 of 2005 under Section 363 I.P.C.Ex.P.15 is the printed F.I.R. and the same was sent to Court as wellas to superior officials.(b) In the meanwhile, at about 7.45 a.m. on that day, P.W.14,Sub-Inpsector of Police, Kandhili Police Station, received aninformation over phone from one Kannan that a burnt body of a boyaged 10 years is found at Velakkalnatam road near Ondikattai,proceeded to the spot with his police party and found the dead body.While he was observing the spot, he received a wireless message fromthe police station about the registration of a complaint at Alangayampolice station given by P.W.1 and accordingly, he informed about thedead body of the boy to the Inspector of Police, Alangayam policestation. (c)P.W.16, Inspector of Police, Alangayam police station, whoundertook the investigation in Crime No.235 of 2005 registered underSec.363 I.P.C. based on Ex.P.1 complaint, on receipt of theinformation from Kandhili police station about the dead body of a boyaged 10 years, reached the spot at about 10.00 a.m., taking P.W.1 andhis wife along with him. On reaching the spot, P.W.1 identified thedead body as that of his son Vinothkumar by looking into his clothesand the wound found on the leg. A statement, Ex.P.2, was recordedfrom P.W.1 after he identified the dead body, in which also P.W.1implicated the appellant/accused and the deceased/accused. In themeantime, at about 12.00 noon, P.W.6, Village Administrative Officerof Paniyandapilli village, on receipt of information, reached thescene of occurrence along with his menial.(d)P.W.16, based on the statement, Ex.P.2, given by P.W.1,altered the penal provisions in crime No.235 of 2005 from 363 I.P.C.to Sections 364, 302 and 201 I.P.C. and sent the express F.I.R.,Ex.P.16, to Court and took up investigation. In the presence of P.W.6and another, he prepared observation mahazar, Ex.P.3 and roughsketch, Ex.P.17. The scene of occurrence and the dead body werecaused to be photographed by photographer, P.W.10. He recoveredM.Os.1, 2, 4, 5 and 6 from the scene of occurrence under a cover ofmahazar, Ex.P.4. In the presence of panchayatdars and witnesses,inquest was conducted between 3.00 p.m. and 6.00 p.m. and Ex.P.18 isthe inquest report. During inquest, witnesses were examined andtheir statements were recorded, after which, the body was sent to thehospital with a requsition for post-mortem. https://hcservices.ecourts.gov.in/hcservices/ (e)P.W.12, Senior Assistant Surgeon attached to GovernmentHospital, Vaniyambadi, on receipt of the requisition and the deadbody, conducted post-mortem at 9.00 a.m. on 15.8.2005; noticed theappearances found on the dead body and reduced the same in Ex.P.14,post-mortem certificate. He reserved his opinion as to the cause ofdeath pending report of chemical analysis and forensic report.(f) P.W.16, continuing with his investigation, sent the materialobjects, viz., M.Os.1, 2, 4, 5 and 6 to Court with a request toforward the same for chemical examination. On 15.8.2005 at about 1.00p.m., he arrested the appellant/ accused and the deceased/accused atVellakuttai Kootroad and pursuant to the admissible portion of theconfession statement given by the appellant/accused, which is markedas Ex.P.5, P.W.16 recovered M.O.7 - cable wire and M.O.8 - plasticbottle with petrol under a mahazar, Ex.P.6. At about 5.30 p.m., onbeing pointed out by the appellant/accused at the workshop of P.W.8,Bajaj Caliber motorbike bearing Registration No.TN-20-X-3596, M.O.3,was seized under a mahazar, Ex.P.7. The deceased accused also gave aconfession statement, pursuant to the admissible portion of which,viz., Ex.P.8, an autorickshaw bearing No.TN-23-W-4095, M.O.9, wasseized under a mahazar, Ex.P.9. The seized material objects were sentto Court along with a requisition for chemical analysis. Thereafter,P.W.16 examined official witnesses and other witnesses and recordedtheir statements. (g) He also issued a requisition to Court to send the viscera andother internal organs already preserved by the doctor, P.W.12, fromthe dead body of the boy, to the laboratory for obtaining the opinionof the scientific experts. On receipt of Exs.P.12 and P.13, hyoidbone report and chemical analyst report, the doctor, P.W.12, opinedas to the cause of death that the deceased died due to strangulation.P.W.16 obtained Exs.P.12 to P.14 from the doctor and examined andrecorded his statement. On various dates, he examined officialwitnesses and recorded their statements. He obtained Ex.P.10 series,photographs and negatives from the photographer and after completinginvestigation, laid the charge sheet against both the accused for theoffences already referred to above on 22.10.2005.(h)During the initial questioning, the accused denied theirinvolvement in the crime and hence, the case was committed to Courtof Sessions, which framed charges against both the accused. Theaccused pleaded not guilty of the charges levelled against them andhence trial commenced. Since the second accused died before trial,the trial proceeded only against the appellant/accused. Theprosecution, in order to substantiate the charges, marched 16witnesses and produced 22 exhibits as well as 9 material objects, asreferred to earlier. https://hcservices.ecourts.gov.in/hcservices/ (i)The trial Court, on scrutiny of the entire materials placedbefore it and on considering the arguments advanced on both sides,convicted and sentenced the appellant/accused as referred above.Exasperated by the same, the present appeal has been preferred by theappellant/accused.6. The learned counsel for the appellant/accused strenuouslyassailing the judgment of conviction and sentence, submits thatsince the case is purely based upon circumstantial evidence, theprosecution has to establish all the links in the chain ofcircumstances and even if one link is missing, the appellant/accusedis entitled for acquittal. He submits that in the instant case, theprosecution failed to establish the motive part of the occurrence,which assumes importance in the case of circumstantial evidence andthe case proceeded mainly based on the last seen theory spoken to byP.Ws.3 to 5 and recovery of material objects, which circumstances arenot at all sufficient to connect the appellant/accused with thecrime. Therefore, the learned counsel submits that this is purely acase for acquittal.7. Opposing the above contention of the learned counsel for theappellant, the learned Additional Public Prosecutor submits that evenin the absence of motive, if there are other sufficient circumstancesproving to the guilt of the accused, the conviction can safely bebased upon such circumstances. He further submits that the last seentheory as spoken to by witnesses and the recovery of material objectsclinchingly connect the accused with the crime without any missinglink and therefore, the conviction and sentence are sustainable inlaw.8. We heard and considered the submissions of both sides andperused the entire materials placed on record.9. It is not in dispute that the deceased boy Vinothkumar diedout of homicidal violence. The evidence of the doctor P.W.12, whoconducted post-mortem and who issued Ex.P.14, post-mortem certificatecoupled with Exs.P.12 and P.13, hyoid bone and chemical analyst'sreports, established the fact that the deceased died ofstrangulation. The doctor has also stated in his evidence that deathcould have been due to strangulation of neck with a wire like M.O.7.Hence, we have no hesitation to hold that the prosecution hassucceeded in establishing the cause of death.10. The points for consideration are :(i)Whether the prosecution has established the caseagainst the accused without a shadow of doubt ? and (ii)Whether in a case based on circumstantial evidence,not proving the motive is fatal to the prosecution, https://hcservices.ecourts.gov.in/hcservices/ when other circumstances connecting the accused withthe commission of crime are substantiated ? 11. The prosecution case hinges upon circumstantial evidence, asthe occurrence was not witnessed by anyone. Before delving into theissue, it is apt to refer the ruling on the circumstantial evidence. 12.1. In Sharad Birdhichand Sarda v. State of Maharashtra [AIR1984 SC 1622], it has been held that the onus was on the prosecutionto prove that the chain is complete and the infirmity of lacuna inprosecution cannot be cured by false defence or plea. The conditionsprecedent before conviction could be based on circumstantialevidence, must be fully established and they are: (1) the circumstances from which the conclusion of guilt isto be drawn should be fully established. (2) the facts so established should be consistent only withthe hypothesis of the guilt of the accused, that is to say,they should not be explainable on any other hypothesisexcept that the accused is guilty; (3) the circumstances should be of a conclusive nature andtendency; (4) they should exclude every possible hypothesis exceptthe one to be proved; and(5) there must be a chain of evidence so complete as not toleave any reasonable ground for the conclusion consistentwith the innocence of the accused and must show that in allhuman probability the act must have been done by theaccused. 12.2. Again, in Padala Veera Reddy v. State of A.P. [AIR 1990 SC709] it was laid down that when a case rests upon circumstantialevidence, such evidence must satisfy the following tests: "(1) the circumstances from which an inference of guilt issought to be drawn, must be cogently and firmly established;(2) those circumstances should be of a definite tendencyunerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form achain so complete that there is no escape from theconclusion that within all human probability the crime wascommitted by the accused and none else; and(4) the circumstantial evidence in order to sustainconviction must be complete and incapable of explanation ofany other hypothesis than that of the guilt of the accusedand such evidence should not only be consistent with the https://hcservices.ecourts.gov.in/hcservices/ guilt of the accused but should be inconsistent with hisinnocence."12.3. The above judgments were quoted with approval by the ApexCourt in the judgment in Manjunath Chennabasapa Mudalli v. State ofKarnataka (2007) 3 SCC (Crl.) 101.13. It is, therefore, clear that the prosecution must prove allthe circumstances connecting unbroken chain of links leading to onlyone inference that the accused committed the crime. Keeping this inmind, let us proceed to analyse the circumstances which theprosecution relied upon to bring home the guilt of the accused.14.The chain and the links that constitute the circumstances are:(i)motive as put forth by the prosecution through thecomplaint, Ex.P.1, lodged by P.W.1;(ii)the deceased minor boy was seen by P.W.4 in thecompany of the accused in a motorbike at 8.45 p.m. on13.8.2005;(iii)at about 9.00 p.m., P.W.3 saw the deceased in thecompany of accused in a motor bike;(iv)at about 4.00 a.m. on the next day, i.e. on14.8.2005, P.W.5 saw the deceased in the company ofappellant/accused and deceased accused;(v)recovery of M.Os.7 and 8, cable wire and plasticbottle with petrol at the instance of appellant/accusedafter his arrest; (vi)recovery of motor bike, M.O.3 from P.W.8 at theinstance of appellant/accused; and(vii)non-explanation of the accused when questionedunder Section 313 Cr.P.C. against incriminatingcircumstances.15. From the above circumstances, it can be culled out that theprosecution relied upon the motive for the accused to commit thecrime, last seen theory spoken to by P.Ws.3 to 5, the recovery ofmaterial objects pursuant to the arrest of appellant/accused at hisinstance and his non-explanation for the same during his questioningunder Section 313 Cr.P.C.16.The first circumstance is whether the accused had enmityagainst the deceased which impelled him to commit the offence. Itcould be seen from the available materials that in Ex.P.1, thecomplaint given by P.W.1 suspecting that the appellant/accused hadkidnapped his son Vinothkumar, which was registered under Section 363I.P.C., it has been stated that the accused had a suspicion that the https://hcservices.ecourts.gov.in/hcservices/ family of PW-1 had done witch craft against the accused family andhence, the accused harbored a grudge against the deceased. But,P.W.1, in his evidence, has not at all whispered anything about theappellant/accused harboring a grudge against him, which impelled himto commit the offence. It is to be noted at this juncture that thoughthe first information statement is not a substantive piece ofevidence and it can be used either to corroborate or contradict themaker thereof, it is earliest document to come into existence andmerely because the prosecution has failed to elicit the aforesaidmotive for the appellant/accused to commit the murder in the chief-examination of P.W.1, it cannot be wholly brushed aside. 17.1. Even assuming that the motive part of the occurrence hasnot been substantiated by the prosecution through P.W.1 in his chief-examination, it cannot be said that since the motive has not beenestablished, the substratum of the prosecution case itself goes, ascontended by the learned counsel for the appellant/accused. 17.2. It is true that in a case of circumstantial evidence motiveplays a significant role. But, it is also well settled that if thereare other circumstances which would lead to the only conclusion thatit was the accused alone and none else who committed the murder, thenthe motive becomes immaterial. At this juncture, it would be apt forus to refer the various decisions of the Apex Court on this point.18.1. In Atley v. State of U.P. (A.I.R. 1955 SC 807), the ApexCourt has held that where there is clear evidence that the person hascommitted the offence, it is immaterial where no motive forcommission of the crime has been shown. Quoting this with approval,the Apex Court in its subsequent decision in Ganeshlal v. State ofMaharashtra (1992 Crl.L.J. 1545), has held thus:"In circumstantial evidence also when the facts are clear itis immaterial that no motive has been proved. Men do not actwholly without motive. Failure to discover the motive of theoffence does not signify the non-existence of the crime. Thefailure to discover motive by appropriate clinching evidencemay be a weakness in the proof of the prosecution case, butit is not necessarily fatal as a matter of law. Proof ofmotive is never an indispensable factor for conviction. Theabsence of motive, which may be one of the strongest linksto connect the chain would not necessarily become fatalprovided the other circumstances would complete the chainand connect the accused with the commission of the offence,leaving no room for reasonable doubt, even from thep rovedcircumstances."18.2. Again in Mulakh Raj v. Satish Kumar (1992 SCC (Cri.)482), it has been held as follows: https://hcservices.ecourts.gov.in/hcservices/ " Undoubtedly in cases of circumstantial evidences motivebears important significance. Motive always locks up in themind of the accused and some time it is difficult tounlock. People do not act wholly without motive. Thefailure to discover the motive of an offence does notsignify its non-existence. The failure to prove motive isnot fatal as a matter of law. Proof of motive is never anindispensable for conviction. When facts are clear it isimmaterial that no motive has been proved. Therefore,absence of proof of motive does not break the link in thechain of circumstances connecting the accused with thecrime, nor militates against the prosecution case."18.3. Further, in Jarnail Singh v. State of Haryana [(1993)SCC (Cri.) 869], the Apex Court held thus:"7. It is true that normally there is a motive behind everycriminal act and that is why the investigating agency aswell as the court while examining the complicity of anaccused, first try to ascertain as to what was the drivingforce which compelled the accused to commit the crime inquestion. But with complex growth of society and which hasalso produced complex characters, the actions and reactionsof persons either on the accused side or on the prosecutionside are not very easy to ascertain and judge. It is amatter of common experience that even a small or trifleincident has a different reaction on different persons.That is why it is not always easy for the court to weighand judge as to whether under the circumstances brought onrecord by the prosecution, in normal course the accusedconcerned could have acted as alleged by the prosecution.8. That is why this Court has repeatedly expressed the viewthat where the positive evidence against the accused isclear, cogent and reliable, the question of motive is of noimportance. But at the same time it must be impressed thatmotive behind a crime is a relevant fact and normallyprosecution is expected to adduce evidence in respectthereof. Experience shows that one or other motive movesthe culprit to a certain course of action. In cases whereprosecution is not able to establish a motive behind thealleged crime it assumes importance especially in caseswhere the prosecution rests on circumstantial evidence oron witnesses who have an inimical background. Proof ofmotive on the part of the accused persons to commit anoffence satisfies the judicial mind about the likelihood ofthe authoriship but in its absence it is only proper on thepart of the court to have a deeper search. But if the court https://hcservices.ecourts.gov.in/hcservices/ is satisfied that evidence adduced, oral or circumstantial,establishes the charge against the accused, the prosecutioncase cannot be rejected saying that there was no immediateimpelling motive on the part of the accused persons tocommit the crime."18.4. In Tarseem Kumar v. Delhi Admn. (1994 SCC (Cri.) 1735), ithas been held thus:"Normally, there is a motive behind every criminal act andthat is why investigating agency as well as the court whileexamining the complicity of an accused try to ascertain asto what was the motive on the part of the accused to committhe crime in question. It has been repeatedly pointed out bythis Court that where the case of the prosecution has beenproved beyond all reasonable doubts on basis of thematerials produced before the court, the motive loses itsimportance. But in a case which is based on circumstantialevidence, motive for committing the crime on the part of theaccused assumes greater importance. Of course, if each ofthe circumstances proved on behalf of the prosecution isaccepted by the court for purpose of recording a findingthat it was the accused who committed the crime in question,even in absence of proof of a motive for commission of sucha crime, the accused can be convicted. But the investigatingagency as well as the court should ascertain as far aspossible as to what was the immediate impelling motive onthe part of the accused which led him to commit the crime inquestion."18.5.In State of Gujaraj v. Anirudhsing (1997 SCC (Cri.) 946),the Apex Court has held that the motive gets locked in the mind ofthe makers and it is difficult to fathom it and that if the motive isproved that would supply a chain of links but absence thereof is nota ground to reject the prosecution case.Again in Uday Kumar v.State of Karnataka (1998 SCC (Cri.) 1686), it has been held that in acase of circumstantial evidence, motive is one of the circumstanceswhich assumes importance but it cannot be said that in the absencethereof, other proved circumstances although complete the chain wouldbe of no consequence.18.6. In Mani Kumar Thapa v. State of Sikkim (2002) SCC (Cri.)1637), the Apex Court held that if the prosecution is able toestablish beyond all reasonable doubt from other circumstantialevidence that it is the accused alone who could have committed themurder, the absence of the motive will not hamper a safe conviction.18.7. The Apex Court has reiterated the above view in YuvarajAmbar Mohite v. State of Maharashtra [(2006) 12 SCC 512], wherein it https://hcservices.ecourts.gov.in/hcservices/ is held that circumstances brought on record by the prosecutionclearly demonstrate that it was the appellant alone who committed themurder and in that view of the matter absence of motive would beimmaterial.18.8. From the above decisions of the Apex Court, it is crystalclear and is also well settled that motive lacks its significanceeven in a case of circumstantial evidence if at all the other provedcircumstances undoubtedly pointing to the guilt of the accused.Keeping the above well settled principles in mind, let us find outwhether the prosecution is able to prove the other circumstanceswhich would only lead to the guilt of the accused.19.The circumstances which the prosecution relied upon other thanthe motive, as already stated, are the last seen theory brought outthrough the evidence of P.Ws.3 to 5, the recovery of material objectspursuant to the confession statement of the accused and his non-explanation under Section 313 Cr.P.C.20.1. P.W.4 - Kalaiarasi is the first person who is alleged tohave seen the deceased boy in the company of appellant/accused at8.45 p.m. on 13.8.05. According to P.W.1, it is the usual practice ofhis son Vinothkumar that after returning from school around 5.00p.m., he would go out for play and would return in a few hours; buton 13.8.2005, finding him not returned even at 8.30 p.m., P.W.1 gotanxious and went in search of him and enquired with his neighbours.P.W.4, who is a neighbour residing in the same street, informed himthat she saw the appellant/accused going to his house in a motorbikearound 8.45 p.m. and while returning, the deceased was sitting at hisback.20.2. The next is the evidence of P.W.3 - Senthilkumar. It ishis evidence that he is working in an auto workshop at Vaniyambadiand he used to go to work at 8.30 a.m. and return to house onlyaround 9.15 p.m. in the night and on 13.8.05, while he was returningin a bus after attending his work at Vaniyambadi at 9.00 p.m., he sawthe appellant/ accused taking the deceased boy in a motor cycle andthat he informed the same to P.W.1 and others when they complainedabout missing of the boy.20.3. The next is the person by name Govindasamy, who is examinedas P.W.5 in the case. According to him, he also searched the boyalong with P.W.1 initially in the evening of 13.8.05 and on the nextday at about 4.00 a.m., when he started to go for Nimmiyapatti inorder to collect labourers for brick work, he saw the deceased boysitting in a motor bike in between the appellant/accused and deceasedaccused, and that he called the appellant/accused, for which theappellant/accused did not respond. Thereafter, he informed the sameto P.W.1, who, in turn, lodged the complaint before the police, whichwas registered under Section 363 I.P.C. https://hcservices.ecourts.gov.in/hcservices/

20.4.From the above evidence of P.Ws.3 to 5, it is evident thatfrom the night of 13.8.2005 till the next day morning at 4.00 a.m.,the deceased boy was seen in the company of the appellant/accused andthereafter, the boy was not seen alive by anyone and only his deadbody was found near Velakkalnatham, which was identified by P.W.1.When the above circumstance of the deceased last seen alive in thecompany of the appellant/accused was put against theappellant/accused, he did not offer any explanation. As laid down bythe Apex Court in Joseph v. State of Kerala (2000 SCC (Cri.) 926),the flat denial of each and every circumstance that was put to theaccused under Section 313 Cr.P.C. is also an additional piece ofevidence against him. The non-explanation of the appellant/accusedfor taking the son of P.W.1 along with him would also substantiatethe offence of kidnapping and hence, we hold that the prosecution hassucceeded in establishing the offence under Section 364 I.P.C.21.1. The next piece of evidence is the recovery of M.Os.1 and 2- burnt clothes found on the dead body, M.O.3 - motorbike used by theappellant/accused at the time of occurrence, M.Os.4 and 5 - burnt tarpieces and sample tar piece, M.O.6 - burnt match stick, M.O.7 -cable wire used to strangulate the neck of the boy and M.O.8 - aplastic bottle containing orange colour liquid, used for screeningthe offence by setting fire to the face of the boy. 21.2. According to P.W.14, the investigating officer, on takingup investigation in the case, he proceeded to the spot and from thescene of occurrence, he recovered M.Os.1, 2, 4, 5 and 6 under amahazar attested by P.W.6, Village Administrative Officer andanother. Thereafter, he arrested the appellant/accused and thedeceased accused on 15.8.2005 and pursuant to the admissible portionof the statement given by appellant/accused, he caused the recoveryof M.Os.7 and 8 on being pointed out by him. The mahazar prepared bythe investigating officer for the recovery of material objects hasbeen attested by P.W.7, who, on oath, corroborates with the evidenceof P.W.14. During the course of investigation, P.W.14 sent all theabove material objects to Court with a request to send them forchemical analysis. The chemical analysis report, Ex.P.21, revealedthat M.O.1 and M.O.2 - burnt clothes, were found to contain petroland M.O.8, a plastic bottle containing 10 ml of orange liquid, wasfound to be petrol.That apart, the doctor, P.W.12, who conductedautopsy, noticed the face and the entire scalp hair singed, swollen,congested and in blackish discolouration and also noticed multipleblisters/blebs on the entire right upper arm front, back of chestand on the abdomen area. The doctor has stated in his evidence thaton account of strangulating with a cable wire, the death would haveoccurred and that by setting fire after pouring petrol on the body,the said blisters are possible.21.3. Further more, the appellant/accused, pursuant to hisconfession statement, took the police to the workshop of P.W.8 and https://hcservices.ecourts.gov.in/hcservices/ pointed out the motor bike which he used at the time of commission ofoffence and the same was recovered under a mahazar. It is theevidence of P.W.8, an independent witness, that on 14.8.2005 at about6.30 a.m., the appellant/accused came to his workshop and requestedhim to do repair works in his motorbike and that he told theappellant/ accused that it will take some time to repair the bike andtherefore, the appellant/accused went away by boarding a bus andthereafter, did not return back. He has further stated that around5.00 or 5.30 p.m., the police came to his shop and seized the motorbike and that he identified the motor bike as M.O.3. 21.4. The above evidence of P.W.6, P.W.7, P.W.8, P.W.12 andP.W.14, who are independent witnesses having no axe to grind againstthe appellant/accused, unambiguously makes it clear that the aboverecoveries have been effected only at the instance of theappellant/accused and as such, an inference could easily be drawnthat the appellant/accused, after the commission of offence of murderby strangulating the neck of the boy with the cable wire, covered theface of the boy with a cloth; poured petrol on the face andthereafter, set fire by throwing a lighted match stick. Here again,the accused had no explanation to offer when he was questioned underSection 313 Cr.P.C. as to the incriminating circumstance with regardto the recoveries, which obviously becomes an additional link in thechain as held by the Apex Court in the case of Joseph, cited supra.21.5.The above circumstances, in our considered opinion,undoubtedly demonstrate the complicity of the appellant/accused inthe commission of crime with regard to abduction, charge of murderand screening of offence and we have no doubt at all that it was theappellant/accused alone who is responsible for the cause of the deathof the boy Vinothkumar.22. Now the question arises whether the conviction of theappellant/accused under Section 120(b) I.P.C. can be sustained. Thecharge is that the appellant/accused conspired with another by nameDuraimurugan and committed the offence of murder. The saidDuraimurugan died before commencement of trial and hence, the chargeslevelled against the said Duraimurugan abated. But, however, thetrial Court proceeded on the basis that both the accused conspiredwith each other to commit the murder of the boy and accordingly,convicted the appellant/accused for the said offence. On a persualof materials, we find that there is absolutely no evidence withregard to the conspiracy hatched between the two accused. Thatapart, the evidence that is available connecting the deceased/accusedwith the crime is the recovery of autorickshaw pursuant to hisconfession and the evidence of P.W.5 - Govindasamy, who saw thedeceased boy in the company of both the accused in a motor bike. Itis the case of the prosecution that the deceased accused hired theautorickshaw, M.O.9, from P.W.9 at the time of commission of offence https://hcservices.ecourts.gov.in/hcservices/ and according to P.W.9 also, he used to rent his auto to others andthat near Vaniyambadi bus stand, the deceased accsued took his autoon hire. But, there is no other material to show that both theaccused took the deceased boy in the said autorickshaw at the time ofoccurrence; on the contrary, P.W.5 would state that he saw thedeceased boy sitting in between the appellant/accused and thedeceased/accused in a motor bike. Further, the motive as alleged bythe prosecution, even though not substantiated, is only against theappellant/accused and the deceased/accused had no motive for havingconspired with the appellant/accused in order to commit the murder ofthe boy. Hence, we are of the confirmed opinion that the trial Courthas conspicuously erred in coming to a conclusion that the charge ofconspiracy is made out. We, accordingly, set aside the convictionand sentence imposed on the appellant/accused under Section 120(b)I.P.C.23. For the foregoing reasons, we hold that though theprosecution has failed to substantiate the motive part of theoccurrence, it has succeeded in establishing the other circumstancesto form a complete chain without any missing link and therefore, weare of the confirmed opinion that it was the appellant/accused alone,who kidnapped the boy; commit his murder by way of strangulation; andthereafter, set fire to the face of the deceased boy in order toscreen the evidence. But, however, we hold that there is absolutelyno material for connecting the appellant/accsued with regard to theoffence of conspiracy and hence, we set aside the conviction andsentence imposed under Section 120(b) I.P.C., while confirming theconviction and sentence as far as other penal provisions areconcerned.In the result,(i)the conviction and sentence imposed on the appellant/accused under Sections 364, 302 and 201 I.P.C.are confirmed;(ii)the conviction and sentence imposed under Section120(b) I.P.C. are set aside; and(iii)the appeal is, accordingly, partly allowed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.Sra https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal Sessions Judge, Vellore, Vellore District.2. The District Collector, Vellore.3. The Director General of Police, Chennai.4. The Inspector of Police, Alangayam Police Station, Vellore District. 5. The Superintendent, Central Prison, Vellore.6. The Public Prosecutor, High Court, Madras.+ 2 CC To Mr.P.Krishnan, Advocate SR NO.30242 and 30808Crl.A.No.429 of 2007SCD {CO}TP/24.7.08