Muthusamy v. The State

On receipt of the complaint from PW-1, on 22.11.2004 at 2.30 P.M.,she registered a case in Crime No.248 of 2004 as 'boy missing' andEx.P15 is the printed F.I.R. She proceeded to the residence of PW-1and prepared observation mahazar and rough sketch viz., Exs.P17 andP16 respectively. She examined PWs-1 to 6 in the village and came to know that there was illicit intimacy between the appellant and the second accused and that the accused might have kept the deceased in illegal custody since the affair between them was questioned by PW-2.In that regard, PW-22 forwarded the particulars to the higher-ups. PW-23 is the Investigating Officer, who took up further investigation on 23.11.2004. On reaching the village of PWs-1 and 2,he verified the statement recorded by PW-22 and searched for the appellant. On 24.11.2004 at 6 A.M., the appellant/1st accused was arrested by him and in the presence of PWs-8 and 9, his statement was recorded and the admissible portion thereof is Ex.P18.

Subsequentthereto, the first accused took the police party and witnesses to the scene of occurrence at Dindigul-Palani road within the jurisdiction of Ayakudi Police Station and pointed out the place where he committed the murder of the deceased. The observation mahazarprepared at that place is marked as Ex.P12 and the rough sketch asEx.P19. He conducted inquest over the dead body of the deceased between 1 and 3.30 P.M. and Ex.P20 is the inquest report. Since the dead body was in a putrefied condition, requisition was given to the Medical Officer, Government Hospital, Palani, to conduct post-mortemat the occurrence place itself. In the meantime, in the presence ofPW-18/Village Administrative Officer and PW-10/Village Assistant, herecovered bloodstained earth and sample earth under Ex.P13 mahazar. He caused photographs to be taken through a photographer. MOs-5 and 6series are the photographs and negatives.

The accused produced MO-1aruval and the clothing of the deceased that were concealed by him ina thorny bush there and the same were recovered in the presence of witnesses under Ex.P14 mahazar. On conclusion of the post-mortem, the dead body of the deceased was handed over to PWs-1 and 2 and it was buried some distance away from the occurrence field. During the course of investigation, the Inspector examined PWs-11 and 12 who sold the rope and shirt & lungi to the accused and one Faisal, who sold MO-1/aruval to him. The accused produced a bicycle and it was also recovered under Ex.P21 mahazar. Since it came to light that it was a case of murder, the offence was modified as one under Sections364 and 302 IPC. and express altered report under Ex.P22 was sent to the Judicial Magistrate and superior officers. The accused was thereafter remanded to judicial custody. A2 was arrested on25.11.2004 in the presence of witnesses and her voluntary statement was recorded.

Thereafter, she was remanded to judicial custody. The https://hcservices.ecourts.gov.in/hcservices/ material objects were despatched to court for receiving opinion from forensic laboratory. PW-2 is the father of the deceased and husband of PW-1. Hecorroborated the evidence of PW-1. As regards motive, he has specifically stated that the appellant was inimical towards him as he questioned him about his illicit intimacy with A-2. It is his further evidence that after the arrest of the appellant, he accompanied the police and witnesses when the accused took them to the place where he committed the murder of his son and, on noticing the physical features, he identified the deceased as his son. As stated earlier, PW-3 is the younger sister of PW-2 anddaughter of A-2. She has stated that subsequent to the missing of the deceased, the appellant came to the village and told that he took away the child of PW-2 and kept him at Thittakudi.

Since she did not support the case of the prosecution, she was treated hostile. PWs-4 to 6 are the residents of the village and they speak about the missing of the boy; however, they did not support the case of the prosecution, hence, they were treated as hostile. In the course of cross examination, PW-5 has stated that two days after the boy was found missing, on seeing the appellant in the village, he questioned him, whereupon, he stated that he took the deceased to Thittakudi and kept him at the residence of his sister there. PW-7 also speaks about the missing of the boy and as to the preparation of observation mahazar at the residence of PW-1 and his signature therein is Ex.P2. PW-8 has been examined to substantiate the arrest of the accused. He accompanied the police party and the witnesses when the accused took them to show the place where he committed the murder of the deceased. He has attested the observation mahazar prepared at the scene of occurrence as well as the confession statement of the appellant and Exs.P3 and P4 are his signatures therein.

PW-9 is also a resident of the same village where PWs-1 and 2reside. He accompanied the accused along with the police party and witnesses to the scene of occurrence. He attested the confession statement of the accused as well as the seizure mahazars and Exs.P6and P7 are his signatures therein. PW-10 is the Village Assistant who attested the seizure mahazarand observation mahazar and Ex.P8 to P11 are his signatures therein.PW-15 is Village Administrative Officer by profession and he is the owner of the field, where the accused committed the offence. Hespeaks about the arrival of the police along with the accused at the scene place, preparation of observation mahazar etc. https://hcservices.ecourts.gov.in/hcservices/ PW-13 is the paternal uncle of PW-2. He has stated that the appellant had grudge against PW-2 since he questioned his illicit intimacy with A-2; that when they enquired the accused on his returning back to the village, he replied that he took the boy and left him in his sister's house at Thittakudi; and, that during police enquiry, in his presence, the accused told that he murdered the deceased at a place near Palani.

It is the evidence of PW-16 that on the date of occurrence, the accused came and left his cycle at his shop and at that time, he saw the boy along with the accused. PW-17 is an employee at the kindergarten school where the deceased was studying. She has stated that the deceased did not attend the school on 19.11.2004.PW-18 is the Village Administrative Officer, who has stated that the place where the dead body was found is within his jurisdiction and he accompanied the police and other witnesses and was present at the time of preparation of mahazars and recovery of material objects and also attested Exs.P12 to 14 viz., observation and seizuremahazars. PW-19 is the photographer who took the photographs of the deceased as well as the scene of occurrence. PW-20 is also aresident of the village where PWs-1 and 2 reside. He speaks about the illicit intimacy between the appellant and the second accused and examination of the accused by the police.

PW-14 is the Medical Officer, who, on requisition from the Inspector of Police, reached the scene of occurrence on 24.11.2004for the purpose of conducting post mortem. The body was in aputrefied condition and he found the hands and legs of the deceased tied with rope, head tonsured and front portion of the neck cut however the head was not completely severed as it was in attachment with the skin at the back portion. Ex.P-11 is the post-mortemcertificate, wherein, the following injuries have been noticed:-" A cut injury around the neck, below the Thyroidcartilage and end just above the medial end of clavicle and encircling the around the neck and small tag of skin attach the Head to the Body. He is shaved fully cut, all the vessels of Neck muscles and Bones (cut trachea, car lids arteries, jugular veins, cervical C4,C5 bones) C4is attached to the Head. C5 attached to the Body. "The Doctor has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained and that the death would have occurred about 4 to 5 days prior to autopsy. https://hcservices.ecourts.gov.in/hcservices/ PW-24, on conclusion of the investigation, filed final report on18.10.2005.

When the accused was questioned under Section 313 Cr.P.C. with reference to the incriminating materials adduced by the prosecution, he has denied his complicity in the commission of the offence and pleaded innocence. No oral or documentary evidence has been adduced by the defence. The learned trial Judge, on perusal of the materials available on record and after hearing the arguments advanced by both sides, convicted and sentenced the first accused/appellant herein as aforementioned; hence, the present appeal.

Further, there is no evidence at all to show that the dead body of the deceased was seen by anyone else before it was pointed out by the accused. The kidnapping of the deceased took place at the village of PW-1 and the place where the deceased was done to death is situated 100 kms. away at a village in a differentDistrict. Unless the information was divulged by the accused, it could not have been possible for the police as well as the witnesses to find out where the dead body was lying. After arrest and giving voluntary statement, it was the accused, who took the police party and the independent witnesses and identified the place where he concealed the dead body. At that time, it was 4th day and therefore, the dead body was in a highly putrefied condition, however, looking at the physical features of the corpse and the dress materials recovered, PW-2 identified the deceased as his son. Moreover, it was the accused who produced other incriminating materials objects including the weapon of offence from a thorny bush at the occurrence field where he had concealed the same.

It is the evidence of the Medical Officer PW-14 that the death was due to homicidal violence. Therefore, the case of the prosecution that the appellant kidnapped the deceased, a boy of just 4 1/2 year old, to wreck vengeance against his father PW-2 and subsequently committed murder of the deceased has been proved beyond reasonable doubt and the reasoningsgiven by the trial court are well founded.

But, insofar as the case against the appellant is concerned, the evidence of the prosecution witnesses is consistent, cogent and convincing. It is the emphatic evidence of PW-14, the Doctor who conducted the post-mortem, that the death of the deceased was due to homicidal violence. At the time when complaint was given by PW-1, it was not known to anyone that the appellant had kidnapped the deceased; that is why, theF.I.R. was registered as 'boy missing' case. PWs-1 and 2 and others searched the boy for about two days and ultimately, since he could not be traced out, they lodged the complaint with the police. Theinvestigation of the case was at its initial stage and nothing was found out immediately and when everything was under suspicion, the complicity of the accused in the commission of offence came to beknown only on 24.11.2004 when the accused was arrested; therefore, the delay in lodging the complaint and F.I.R. reaching the court need not be taken serious note of.

Though some witnesses have spoken to about the presence of the accused on the previous day, it has to beseen that the witnesses are rustic villagers, deposing before court after a period of 4 years, and in such circumstance, the arrest of the accused by the Investigating Officer on 24.11.2004 cannot be suspected. Probably, the examination of the accused by the police in their presence and the subsequent sequence of events might have been narrated in line with what they have remembered at the time of trial proceedings before court. There is no material available so as to substantiate that the dead body was seen by the witnesses prior to the identification at the instance of the accused. The witnesses have consistently stated that they came to know about the place of occurrence only at the instance of the accused. Moreover, such placeis situated about 100 kms. away from the village of PWs-1 and 2.

We have also noticed the evidence of PW-16, an independent witness, who has stated that he had seen the accused taking the boy with him after leaving the bicycle at his shop. The said witness has no axe to grind against the appellant. https://hcservices.ecourts.gov.in/hcservices/ The other vital feature is that the details relating to the scene of occurrence where the offence was committed and the place where he concealed the incriminating material objects are within the exclusive knowledge of the accused and this aspect assumes great importance ina case of this nature involving circumstantial evidence, unerringly pointing towards the guilt of the accused. It was the accused who, after his arrest and giving voluntary statement, took the police and witnesses to the place of occurrence, pointed out the body and produced the incriminating material objects since he is the person, who alone knew exclusively about the said place and also gave particulars of the persons from whom he purchased the weapon of offence and other materials.

The witnesses, who attested the statement of the accused as well as the recovery mahazars, have consistently deposed about the accused pointing out the place where he committed the offence and production of material objects by him. Added to that, persons who sold the rope, dress materials and weapon of offence have been examined during police enquiry as well as cited as witnesses before court and they corroborated the prosecution case. We again point out that no one else except the accused had the knowledge of the place of occurrence and the prosecution established this strong circumstance against the accused. Thus, the motive, identification of the place where the offence was committed and recoveries at the instance of the accused serve as rather formidable circumstances as against the accused and the prosecution has proved beyond any iota of doubt its case that it was the appellant, who took away the deceased to Palani and thereafter to the scene of occurrence, where he brutally murdered him.

Though the learned senior counsel for the appellant endeavoured to discredit the evidence of the prosecution witnesses by pointing out some minor variations and contradictions and attacked the judgment of trial court, we are of the view that the appreciation of evidence broadly by the trial court could not be said to be either perverse or suffering from any patent infirmities or illegalities soas to vitiate the findings rendered by it. When the testimony of the prosecution witnesses is consistent in material particulars, trivial discrepancies and trifling contradictions would in no way render the evidence unacceptable. On a careful assessment of the evidence, to which our attention has been invited and on going through the judgment of the court below, we find that the evidence has been carefully scrutinized noticing the contradictions and infirmities wherever found and properly marshalled and analysed before passing the verdict of guilt as against the appellant herein under Sections364 and 302 IPC.